text:
    Leslie Ann GRABLE v. James GRABLE, Jr.
    91-273
    821 S.W.2d 16
    Supreme Court of Arkansas
    Opinion delivered December 16, 1991

      Lightle, Bebee, Raney, Bell & Hudgins, by: Robert Hudgins, for appellant.

      Paul Petty and Robert Meurer, for appellee.
   Donald L. Corbin, Justice.

Appellant Leslie Ann Grable challenges an order of the White County Chancery Court modifying the child support obligation of appellee James Grable, Jr. We affirm.

The parties were divorced by a decree entered December 7, 1987. The divorce decree granted custody of the Grables’ five minor children to Leslie Grable, and ordered James Grable to pay $300 per week in child support. Since entry of the original support decree, Mr. Grable has accrued support arrearages in excess of $32,000. At the time Mr. Grable filed his petition for modification on January 28, 1991, he was incarcerated at the White County Detention Center for failing to comply with the support payment conditions set out in an August 27,1990 agreed order of contempt and modification. The August 27, 1990 order had increased Mr. Grable’s weekly support obligation to $370 based on his take-home income of $864 per week from his job at Wayne Phillips Trucking Company. The order also directed Mr. Grable to pay a weekly sum of $100 toward his support arrearages.

Mr. Grable’s January 28, 1991, petition for modification requested a reduction in his weekly support obligation based on his assertion that he had been “laid off’ from his job at Wayne Phillips Trucking Company. On February 1, 1991, the court entered an order finding Mr. Grable in contempt of the August 27,1990 order. The order conditioned Mr. Grable’s release from jail on a cash payment of $2,500 and the establishment of a wage assignment from his new employer. The order further provided that all the provisions of previous child support orders would remain in full force and effect.

The February 1, 1991 order was entered after Mr. Grable had filed his petition for modification, but before the court had held a hearing on this petition. The court did not conduct a hearing on Mr. Grable’s petition until March 20, 1991. At the March 20 hearing, Mr. Grable presented evidence regarding his change in employment. Based on this evidence, the chancellor found a change in circumstances existed, and reduced Mr. Grable’s weekly child support obligation as of March 22, 1991, to $220 plus a $30 weekly payment toward previous arrearages. The chancellor entered this order on May 8, 1991.

Leslie Grable appeals from the May 8,1991 order reducing Mr. Grable’s child support obligation. Mr. Grable contends that Mrs. Grable’s arguments are meritless, and that he should be awarded attorney’s fees and costs in conjunction with this appeal. We affirm the order of the chancellor, and deny appellee’s request for attorney’s fees and costs.

Appellant’s first allegation of error is that the reduction of appellee’s child support obligation violates Ark. Code Ann. § 9-14-234(b) (Repl. 1991). Section 9-14-234(b) provides in pertinent part:

(b) The court may not set aside, alter, or modify any decree, judgment, or order which has accrued unpaid support prior to the filing of the motion. [Emphasis supplied.]

In the instant case, appellee James Grable petitioned for modification of his child support obligation on January 28,1991. At that time, Mr. Grable owed appellant Leslie Grable approximately $33,000 in support arrearages. Mrs. Grable contends that because Mr. Grable had accrued unpaid support, section 9-14-234(b) precluded him from seeking any modification. We disagree.

In Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), this court interpreted section 9-14-234 as an effort by the Arkansas Legislature to comply with funding qualification regulations set out by the United States Department of Health and Human Services. The pertinent regulation in the instant case is codified at 45 C.F.R. § 303.106 (1989) under the section entitled “Procedures to Prohibit Retroactive Modification of Child Support.” With respect to state regulations regarding modification of child support orders, the federal regulation provides as follows:

(a) The State shall have in effect and use procedures • which require that any payment or installment of support under any child support order is, on and after the date it is due:
(3) Not subject to retroactive modification by such State or by any other State except as provided in paragraph (b) of this section.
(b) The procedures referred to in paragraph (a)(3) of this section may permit modification with respect to any period during which there is pending a petition for modification, but only from the date that notice of such petition has been given, either directly or through the appropriate agent, to the obligee or (where the obligee is the petitioner) to the obligor.

The paragraph (b) exception to the general federal regulation prohibiting retroactive modification of child support orders is precisely the condition for which the statutory language “prior to the filing of the motion” provides. We believe section 9-14-234(b)’s language indicates our legislature’s intent to incorporate both the general federal rule regarding modification and the exception to this rule. Consequently, we hold that section 9-14-234(b) prohibits only the modification of child support orders which retroactively affect the time period before the petition for modification was filed and proper notice given to the opposing party.

In the instant case, the order entered on May 8, 1991, reduced appellee’s child support obligation as of March 22,1991. The order did not modify any child support obligations owed by appellee prior to March 22, 1991. In fact, the May 8 order specifically stated that appellee’s arrearage remained at $32,901.46 and was accruing interest at an annual rate of 10%. Given that appellee filed his petition for modification on January 28, 1991, the order reducing appellee’s child support obligations as of March 22 did not violate section 9-14-234(b) since this order affected only obligations that were antecedent to the filing of appellee’s petition.

Appellant’s second argument for reversal is that the chancellor abused his discretion in reducing appellee’s child support obligation based on a change of circumstances. On January 28, 1991, appellee petitioned the court to modify his support obligation because he had been “laid off’ at his place of employment. Appellee’s petition was prompted by the chancellor’s January 25, 1991 order finding appellee in contempt for nonpayment of child support payments and ordering him incarcerated until his arrearages were purged. On February 1, 1991, the chancellor entered an order specifically finding, among other things, that appellee should be released from incarceration upon paying $2,500 and stating that the provisions of previous orders regarding child support “shall remain in full force and effect.” The order entered on August 27,1990 had established appellee’s weekly obligation at $370 plus payments of $100 applied against arrearages. Appellant argues that because the February 1 order was subsequent to appellee’s petition for modification, the chancellor was precluded from modifying appellee’s support obligation based on a change of circumstances that occurred prior to entry of the February 1 order. We disagree.

Appellee actually filed his petition to reduce his child support obligation during the time he was cited and found in contempt for failure to pay child support. Under these circumstances, he was unable to seek to have the August 27,1990 child support order modified. Gilmore v. Gilmore, 239 Ark. 1140, 396 S.W.2d 936 (1965). However, after appellee paid $2,500, he was released .from jail. At that time, he appropriately sought a reduction in his child support obligation at a hearing on March 20,1991, which was his first opportunity to show he had been laid off from his employment and was no longer able to pay the previously ordered $470 weekly amounts. Appellant responded by requesting the chancellor to find appellee in contempt for additional arrearages. At the March 20 hearing, appellee testified that he left his previous place of employment at Wayne Phillips Trucking Company because the company was facing bankruptcy. Appellee further testified that his weekly income at his new place of employment averaged between $350 and $400. The chancellor relied on the appellee’s evidence presented at the hearing in reducing appellee’s weekly obligation to $220.

In sum, while appellee had obtained his new job at the time the February 1 order was entered, he could not have a hearing to present evidence supporting his petition until March 20, 1991. Based upon these facts and circumstances, we cannot say the chancellor erred in reducing appellee’s weekly child support obligation and setting the amount he did.

Appellant’s final argument is that the chancellor erred in granting affirmative relief to appellee. Appellant argues that the chancellor should have denied affirmative relief to the appellee because the appellee came to the court with “unclean hands” and because the appellee’s change in employment was voluntary.

Appellant’s “unclean hands” argument is based on the equitable maxim that he who seeks equity must do equity. In this case, appellant argues that because appellee had failed on multiple occasions to abide by court orders, appellee was estopped from seeking modification of his support obligation. We believe that the repeated contemptuous conduct of appellee may well have justified a refusal by the chancellor to afford affirmative relief to appellee. However, the purpose of invoking the clean hands doctrine is to protect the interest of the public on grounds of public policy and for the protection of the integrity of the court. 30 C.J.S. Equity § 93 (1965); Roark v. Roark, 34 Ark. App. 250, 809 S.W.2d 822 (1991). Consequently, application of the doctrine depends on the chancellor’s discretion as to whether the interests of equity and justice require application of the doctrine. 30 C.J.S. Equity § 90 (1965). As the chancellor was in the better position to determine the facts and weigh the competing interests in this case, we cannot say that he abused his discretion in declining to estop appellee from seeking modification of his support obligation.

Appellant based her final challenge to the chancellor’s grant of affirmative relief on the fact that appellee’s change in employment was voluntary. Appellant relies on this court’s recognition in Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988), of a trial court’s prerogative to impute income to a supporting spouse who voluntarily changes employment based on that party’s earning capacity. However, in Grady we also cautioned that a trial court’s decision on whether to impute income must be based on the facts and circumstances of each case because situations exist where income reductions are reasonable and justifiable. Id. at 98, 747 S.W.2d at 79.

In the instant case, appellee testified that he left his previous employment because the company was facing bankruptcy. He also testified that while his new employment was substantially similar to his former job, his current weekly income averaged only $350 to $400. After hearing appellee’s testimony, the chancellor expressed his cognizance of the Grady case, yet stated “the Court also has to be somewhat realistic in setting support as to what someone can or cannot do.” The chancellor went on to summarize appellee’s testimony regarding the financial condition at appellee’s former place of employment. Based upon the appellee’s testimony concerning his weekly income at his current place of employment, the chancellor reduced appellee’s weekly support obligation of $220.

This court has held that the amount of child support lies within the sound discretion of the chancellor, and we will not disturb the chancellor’s finding absent an abuse of discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990); Grady, supra. Given the chancellor’s explicit explanation in this case regarding his perception of both the law and the facts necessitating modification of appellee’s support obligation, we cannot say that the chancellor’s decision constituted an abuse of discretion.

The appellee has asked this court to award attorney’s fees and costs in conjunction with the appeal. Ark. Sup. Ct. R. 24(d) provides that in chancery cases the court may assess costs according to the merits of the case. Appellee argues that he is entitled to costs and attorney’s fees because appellant’s arguments are “clearly meritless.” We disagree.

While this court does not agree with the arguments advanced by appellant, we cannot say that her arguments are “clearly meritless.” This court has not previously addressed the precise arguments raised by appellant, and no evidence indicates that appellant brought her appeal for any improper purpose.

In equitable actions, costs on appeal are largely within the sound discretion of the reviewing court. 20 C.J.S. Costs § 159 (1965). In exercising our discretion to determine whether costs or attorney’s fees are appropriate, this court has also indicated that it will consider the economic status of the parties. See LeFevers v. LeFevers, 240 Ark. 992, 403 S.W.2d 65 (1966). Mrs. Grable is a mother of five who works forty hours a week in a grocery store for a weekly take-home income of $154.16. Based on Mrs. Grable’s economic status and our disagreement with appellee’s contention regarding the merits of Mrs. Grable’s arguments, we decline to award costs and attorney’s fees in this action.

Affirmed.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Rebecca Mayfield MILLS as Trustee Under the Last Will and Testament of E.P. Rainey, Deceased; and Rebecca Mayfield Mills and E.C. Rainey v. Elizabeth HOLLAND, J.L. Rainey, Juanita Stark, Joy Carrier Phillips, Molly Suzanne Matthews, Molly Rainey, Deborah Mills Hodges, Angela Huchingson, Rebecca Grace Wood, Lyne Stark Bassett, William P. Rainey, Scott Rainey Mills, Kathy Kibe, and Emily Cockrill
    91-222
    820 S.W.2d 63
    Supreme Court of Arkansas
    Opinion delivered December 16, 1991
    [Rehearing denied January 13, 1992.]

      Donald A. Forrest, for appellants.

      Hale, Fogleman & Rogers, by: Joe M. Rogers, for appellees.

      William P. Rainey, pro se and for Emily Cockrill.

      Brown, J., would grant rehearing.

   Donald L. Corbin, Justice.

E.P. Rainey died August 9, 1970. His will has previously been the subject of an appeal in this court. Holland v. Rainey, No. 77-306. This particular appeal involves two testamentary trusts. In his will, E.P. Rainey conveyed various tracts of land in Arkansas and Mississippi to two of his sons as trustees. The income from the trusts is for the benefit of his seven children and the corpus is to be distributed per stirpes to his children’s heirs. Appellants seek reversal of a judgment declaring their duties and powers with respect to the allocation of expenses between income and corpus. We are unable to reach the merits of this appeal because appellants have failed to abstract a necessary part of the record. Ark. Sup. Ct. R. 9(d). We therefore affirm. Peterson Indus., Inc. v. Farmer, 288 Ark. 298, 705 S.W.2d 8 (1986).

Appellants contend E.P. Rainey’s will contains ambiguous provisions with respect to their powers as trustees. “It is impossible for us to consider the appellants’ contentions, because counsel have not provided us with either an exact quotation of the instrument in question or with an abstract of it. We have no idea how it reads.” Zini v. Perciful, 289 Ark. 343, 344, 711 S.W.2d 477, 478 (1986).

The will is a written instrument which could have been abstracted in words. As is the case when deeds, contracts, or other instruments are being interpreted, the better practice would have been for counsel to have copied the will verbatim in the abstract. Id. Instead, in the argument portion of their brief, appellants quote selected portions of the will and then discuss those parts of the will they consider to be controlling. “Such a discussion does not comply with Rule 9(d), which requires an impartial abstract of such material matters in the record as are necessary to an understanding of the questions presented.” Napier v. Northrum, 264 Ark. 406, 411, 572 S.W.2d 153, 156 (1978). Without such an abstract of the will we cannot say what appellants’ powers are. In effect, appellants ask all seven members of this court to examine the entire will which is attached to the single transcript as an exhibit. “[F]or a hundred years we have pointed out, repeatedly, that there being only one transcript it is impractical for all members of the court to examine it, and we will not do so.” Zini, 289 Ark. at 344, 711 S.W.2d at 478. Further, even though our review of this case is de novo, our review is on the record as abstracted, not upon the transcript. Id.

Affirmed.


author: Robert L. Brown, Justice.

text:
    AGAPE CHURCH, INC. v. PULASKI COUNTY, Arkansas
    91-160
    821 S.W.2d 21
    Supreme Court of Arkansas
    Opinion delivered December 16, 1991

      Giroir & Gregory, by: H. Watt Gregory III, Michael G. Smith, and Jarme G. Siegel, for appellant.

      Larry D. Vaught, for appellee.
   Robert L. Brown, Justice.

This appeal arises from an order of the Pulaski County Circuit Court denying the appellant, Agape Church, Inc., an exemption from real estate taxes. The property involved is twenty-six acres of land, which is located some distance from the church buildings. A 700-foot transmission tower and a tower house for broadcasting Christian programming are the only structures that have been erected on the acreage. The church appeals the denial of the exemption on the basis that the tower and the acreage were dedicated church property and, therefore, qualified for an exemption under the statute.

The facts are not at issue. Agape Church, Inc., a non-profit corporation, operates a non-denominational Christian church in Little Rock. As part of its ministry, the church has a television station and broadcasts on cable Channel 25, KVTN. It asserts that all television property, including the tower, tower house, and acreage, are exclusively used for and dedicated to Christian purposes.

The appellee, Pulaski County, sought to assess the acreage with its improvements for real estate taxes, and the church claimed an exemption under Ark. Code Ann. § 26-3-301(11)(A) (Supp. 1991), which reads:

Under the provisions of this section, all dedicated church property, including the church building used as a place of worship, buildings used for administrative or missional purposes, the land upon which the church buildings are located, all church parsonages, any church educational building operated in connection with the church including a family life or activity center, a recreation center, a youth center, a church association building, a day-care center, a kindergarten, or private church school shall be exempt.

The Pulaski County Judge denied the exemption, and the church appealed the denial to the Pulaski County Circuit Court, which conducted a trial de novo and ultimately affirmed the ruling of the county judge. In doing so, the circuit court held that the property was not exempt under either Ark. Const, art. 16, § 5 or Ark. Code Ann. § 26-3-301(11)(A).

We begin with an analysis of the property claimed by the appellant to be exempt. The twenty-six acres and the tower are located in eastern Pulaski County near the Lonoke County line. On the land is also an adjoining tower house, which is a ten by twenty foot building that houses the transmitter. The tower’s height is 700 feet, and it is anchored to the ground by guy wires that extend 500 feet from the tower’s center. Virtually all of the twenty-six acres is used to accommodate the tower. The tower transmits the broadcast signal from the church to Channel 25. No church services are held on the acreage, and the broadcasts do not originate from that property. This acreage is separate and apart from the church proper which is situated in west Little Rock.

The purposes of the church and the station were described by the Reverend Howard Lee Caldwell, the church’s pastor, at the hearing before the circuit court. He testified that in 1988 the church purchased a certificate of construction for a full power UHF television station, Channel 25. The station went on the air in December 1988, and on Christmas Day, in a live broadcast, he dedicated the television station “to the work of the Lord for Christian programming in Central Arkansas.” Since then, he said, the programming has been solely Christian. Some programs are broadcast from the church, but the vast majority of programming comes from other Christian denominations and from Christian sources such as the 700 Club that pay the church to run their broadcasts. Contributions received from Arkansas viewers by the other Christian programmers are shared with the church. The church estimates that it reaches eight times the number of the people through television on Sunday morning than it does through regular Sunday morning services — over 1,200 people attend services, while the television station reaches over 8,000 homes.

The church congregation raised the money to build the station in 1988, including money for the acreage and the tower which are the subject of this appeal. The bulk of support for the station’s maintenance and operation comes from the congregation, although non-members also contribute. All viewers are asked to make a gift of $ 10 a month for the station. There is, too, the revenue derived from the sale of air time to other Christian programmers and a small amount of monthly advertising revenue. Any monthly deficit is made up by the church from the church’s general fund. The church has realized no profit from the station’s operation.

We have long held that exemptions from taxation must be strictly construed, regardless of merit, in favor of taxation and against exemption. See, e.g., City of Fayetteville v. Phillips, 306 Ark. 87, 811 S.W.2d 308 (1991); Arkansas Conference Association of Seventh Day Adventists, Inc. v. Benton County Board of Equalization, 304 Ark. 95, 800 S.W.2d 426 (1990); Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960); Brodie v. Fitzgerald, 57 Ark. 445, 22 S.W.2d 29 (1893). We have further held that the scope of review for tax exemption cases is de novo on appeal. See Ragland v. Dumas, 292 Ark. 515, 732 S.W.2d 119 (1987). Lastly, we have held that the party claiming an exemption must prove it beyond a reasonable doubt. Id.; see also Ragland v. Pittman Garden Center, Inc., 299 Ark. 293, 772 S.W.2d 331 (1989); C&C Machinery, Inc. v. Ragland, 278 Ark. 629, 648 S.W.2d 61 (1983); S.H. & J. Drilling Corp. v. Qualls, 268 Ark. 71, 593 S.W.2d 178 (1980); Heath v. Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 953 (1976).

Bearing these principles in mind and reviewing the case de novo, we cannot say that § 26-3-301(11)(A) clearly embraces television towers or like structures with the degree of exactness and certainty required by our cases or that an exemption has been proven beyond a reasonable doubt. By its terms, the exempting statute refers to “all dedicated church property” and then lists “buildings” and “centers” such as the church itself, administrative buildings, the parsonage, and the youth center. This language is ambiguous. Were we to stop with the words “all dedicated church property,” the task would be immensely easier. But we are required to read the statute in its entirety, and it can be read several different ways.

One interpretation is that the buildings and centers listed in the statute are all the General Assembly intended to exempt. A second interpretation is that the General Assembly intended to exempt other buildings as well, and this statutory list merely comprises examples. A third interpretation is the one advanced by the church — the statute embraces all dedicated church property, whether buildings or real estate or structure like the tower.

It is possible that the General Assembly did intend a very liberal exemption under the statute, but the argument that the legislature intended to limit the exemption to the buildings listed in the statute or to church buildings general is equally persuasive. A television tower, manifestly, is not a building, and the fact that a small incidental tower house is located on the property does not convert the entire twenty-six acres into a “building.”

We turn to the doctrine of ejusdem generis for guidance in resolving this ambiguity. In 1989 we defined that doctrine in the following terms:

The doctrine provides that, ‘Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the proceeding specific words.’ 2A Singer, Sutherland Statutory Construction § 47.17(4th ed. 1984). See also, Jones v. State, 104 Ark. 261, 149 S.W. 56 (1912); Cherokee Public Service v. City of West Helena, 184 Ark. 38, 41 S.W.2d 773 (1981). The doctrine can only apply however, when certain conditions exist:
(1) The statute contains an enumeration of specific words; (2) the members of the enumeration suggest a class; (3) the class is not exhausted by the enumeration; (4) a general reference supplementing the enumeration, usually following it; and (5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.

Sutherland Statutory Construction, supra, § 47.18. Woodruff v. Shockey, 297 Ark. 595, 598, 764 S.W.2d 431, 432, (1989); see also Hutcheson v. Pace, 252 Ark. 928, 481 S.W.2d 710 (1972); Union Bankers Ins. Co. v. Nat’l Bank of Commerce of Pine Bluff, 241 Ark. 554, 408 S.W.2d 898 (1966); Fagan Electric Co., Inc. v. The Housing Authority, 216 Ark. 932, 228 S.W.2d 39 (1950). Though the doctrine is generally cited in connection with a general reference in the statute which follows a specific enumeration, it is equally applicable where the general reference precedes a list of specific examples.

We hold that the conditions of ejusdem generis exist in this case and that application of the doctrine is appropriate. Under this doctrine “all dedicated church property” is a class of property which is defined under the statute by what comes subsequently. Those specific references are to church buildings, administrative buildings, land for church buildings, parsonages, and various centers for church-related activities. A reasonable interpretation of the class of exempt property is one that embraces buildings related to church purposes and land where they are located. The class defined by the specific references, therefore, is composed of church buildings, church-related buildings, and the land on which such buildings are located. As we cannot conclude that a television tower is a building, it does not come within the class.

The church directs our attention to several cases in foreign jurisdictions and relies especially on an Ohio case as precedent. See Maumee Valley Broadcasting Ass’n v. Porterfield, 29 Ohio St. 2d 95, 279 N.E.2d 863 (1972). The Maumee Valley case differs factually from the case before us. There, the issue was the payment of sales and use taxes by the church for purchases made in connection with a ten-acre tract on which was located a broadcasting studio and an auditorium to accommodate about 120 people. The Ohio Board of Tax Appeals had allowed the exemption, and the Ohio court deferred to the Board on the factual issues. It then looked to the character, motive, and purpose of the facilities on the ten acres and concluded that the tract had the necessary attributes for a church. What distinguishes Maumee Valley from this case, however, is that religious activities occurred on the premises — in the broadcasting studio and in the auditorium. That is not the situation in the case before us.

Though the church admits that it hinges its argument on the exemption statute and not the exemption for “churches used as such” set out in Ark. Const, art. 16, § 5, it still looks to cases construing the constitutional language and argues that this authority is instructive on how the exemption statute should be construed. In this regard, the church relies particularly on Hilger v. Harding College, Inc., 231 Ark. 686, 331 S.W.2d 851 (1960).

In Hilger, the issue was whether a college-owned laundry, printing shop, and dairy were used directly and exclusively for school purposes so as to be exempt from taxation under Ark. Const, art. 16, § 5. We reversed the chancellor and denied the exemption. In doing so we interpreted the exemption language in the constitution — “school buildings and apparatus; libraries and grounds used exclusively for school purposes.” We distinguished between the purpose for which property was actually being used and the purpose for which the income derived from the property was being used and concluded that the laundry and other property were not exclusively used for school purposes and, therefore, were not exempt.

Hilger, however, is not helpful in deciding this case. The exemption claimed in Hilger under the constitution is different from the exemption that confronts us. Also, here, the fact that the purpose of the tower is to communicate Christian teachings is undisputed. The issue, rather, is whether the tower, which admittedly is used for Christian purposes, falls within the parameters of the exemption statute.

It is true that in past cases we interpreted the constitutional language, “churches used as such,” in light of whether the land involved was used exclusively for church purposes. See Burbridge v. Smyrna Baptist Church, 212 Ark. 924, 209 S.W.2d 685 (1948); Pulaski County v. First Baptist Church, 86 Ark. 205 (1908). In First Baptist Church, we denied the real estate tax exemption on the basis that the well and water closets located on a separate lot could have been situated on the lots where the church was built. In Burbridge, we reversed the chancellor and denied a tax exemption on twenty acres of land where the church had burned and the cemetery occupied only two acres of the tract.

The fact that we alluded to church purposes in those cases is not precedent for the church’s proposition that the character or motive or purpose of the tower should govern this case, rather than the specific language of § 26-3-301 (11) (A). Furthermore, in both Burbridge and First Baptist Church, we tied our decision to the fact that the land sought to be exempt was not identified closely enough with a functioning church building. In Burbridge, the church had been destroyed and the congregation dispersed. In First Baptist Church, there was no reason to have the well and water closets on a separate lot when they could have been placed on the same lots as the church building.

Our cases mandate that we strictly construe statutory exemptions in favor of taxation, no matter how commendable or beneficial the exemption claim may be. Moreover, our interpretation of the statute limits the class of exempt dedicated church property to buildings related to church purposes and land where they are located. We, therefore, decline to liberalize our exemption statute in accordance with one interpretation so as to effectuate a particular exemption when the statute is not clear. Clarification of this exemption statute rests with the General Assembly — not the courts. We will resist the temptation to legislate an expansive interpretation.

Affirmed.

Corbin, J., concurs.

       Cemetaries are entitled to a separate exemption under Ark. Const, art. 16, § 5.


author: Per Curiam.

text:
    Robert BOGARD and George Willis v. STATE of Arkansas
    CR 91-106
    820 S.W.2d 276
    Supreme Court of Arkansas
    Opinion delivered December 16, 1991

      Clyde Lee, for appellant.
    No response.
   Per Curiam.

The appellant George Willis was convicted in the Circuit Court of Columbia County of possession of cocaine and sentenced to life imprisonment. His co-defendant Robert Bogard was sentenced to forty years imprisonment. Appellant’s appointed attorney Clyde Lee tendered the record to this court in an untimely manner on April 10,1991. We granted a motion for rule on the clerk in the case, and appellant’s brief was due for filing June 8,1991. When no brief was received by September 18, 1991, the clerk informed counsel by letter of the need to take some action in the case. As of this date, counsel has not tendered the brief. Appellant Willis has now filed a motion for appointment of counsel, asking that another attorney be appointed to represent him on appeal. Willis contends that counsel was angry at being appointed to the case and will not pursue the appeal seriously for that reason. He further asks that if this court declines to relieve Clyde Lee as counsel, that he be allowed to file a pro se supplemental appellant’s brief.

The motion to relieve Mr. Lee as counsel is denied because appellant has not offered facts sufficient to demonstrate that there is a conflict of interest between him and counsel such that counsel cannot provide the effective assistance of counsel guaranteed by the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668 (1984). Counsel has been directed by Per Curiam Order to appear on Monday, January 13, 1992, at 9:00 a.m. to show cause why he should not be held in contempt of this court for failure to file a timely appellant’s brief in this case. If information is adduced at that proceeding which indicates that counsel cannot provide effective assistance of counsel on appeal, appellant Willis’ motion will be reconsidered.

Appellant’s request for permission to supplement the brief to be filed by counsel is denied as premature. If after reviewing counsel’s brief when it is filed, appellant desires to supplement it, he may at that time file a motion to supplement, citing any specific deficiency in counsel’s brief. Wade v. State, 288 Ark. 94, 702 S.W.2d 28 (1986).

Motion denied.


text:
    Robert BOGARD and George Willis v. STATE of Arkansas
    CR 91-106
    820 S.W.2d 277
    Supreme Court of Arkansas
    Opinion delivered December 16, 1991
   Per Curiam.

Appellants’ attorney Clyde Lee is directed to appear before this court at 9:00 a.m. on January 13,1992, to show cause why he should not be held in contempt of court for failure to timely file a brief in this case.


author: Jack Holt, Jr., Chief Justice.

text:
    Richard RISCHAR v. STATE of Arkansas
    CR 91-190
    821 S.W.2d 25
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991
    [Rehearing denied January 21, 1992.]

      Larry J. Steele, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

On November 15,1990, the appellant, Richard Rischar, was convicted in the Municipal Court of Paragould, Greene County, Arkansas, of DWI First Offense and sentenced to ten days in the county jail, with nine days suspended on the condition he complete DWI School and with the option to perform 24 hours public service work in lieu of the remaining jail sentence, fined $350.00, ordered to pay all costs of prosecution, and had his driver’s license suspended for 90 days.

Rischar appealed to the Greene County Circuit Court, and on May 28, 1991, the trial court affirmed the judgment when Rischar and his attorney failed to appear for the scheduled trial date.

Now, on appeal, Rischar contends that 1) the trial court erred in affirming the municipal court’s sentence without his having the benefit of a trial, and 2) the trial court erred in denying his motion to set aside the judgment. We disagree and affirm the judgment of the trial court.

Initially, Rischar argues that the trial court erred in affirming the municipal court’s sentence without his having the benefit of a trial and relies on Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989), Ark. Code Ann. § 16-17-703 (Supp. 1989), and Ark. Const. Art. 2, §7, for the proposition that he is entitled to the right to a jury trial in his appeal to the circuit court.

While Rischar is correct in his assertion, Ark. Code Ann. § 16-96-508 (1987) addresses judgment on default when a party to trial fails to appear and provides in pertinent part as follows:

If the appellant shall fail to appear in the circuit court when the case is set for trial. . .then the circuit court may, unless good cause is shown to the contrary, affirm the judgment . . . and enter judgment against the appellant for the same fine or penalty that was imposed in the inferior court, with costs.'This judgment shall have the same force and effect as other judgments of the circuit court in cases of convictions or indictments for misdemeanors.

The trial court complied with article 2, §7 by setting Rischar’s case for trial by jury; yet, it was Rischar’s actions in failing to appear at trial that precluded him from exercising that right. Rischar’s attorney claimed, by way of explaining why he and Rischar failed to appear at the scheduled trial date, that he had an agreement with the prosecutor to try the case on May 30, 1991; however, the prosecutor denied this contention and relied on the trial court’s docket setting the trial for May 28. At the hearing on the motion to set aside the judgment, the trial court succinctly noted that “. . . it was fairly clear to the court that this case was clearly set on May 28th. . .’’and ultimately determined that Rischar’s attorney had not shown just cause to set aside the judgment.

The court controls the trial calendar and provides for the scheduling of cases upon the calendar, Ark. R. Crim. P. 27.2, the setting of which is tantamount to a direct order of the court. Recently, in Sphere Drake Ins. Co. v. Bank of Wilson, 307 Ark. 122, 817 S. W.2d 870 (1991), we noted that although Ark. R. Civ. P. 55(c) authorized a trial court to set aside a default judgment upon a showing of excusable neglect, unavoidable casualty, or other just cause, where the appellant in that case was faced with a court order to answer interrogatories within ten days or face default, it was irrelevant whether appellee’s counsel objected to the appellant’s stated intention not to file responses because the appellee’s attorneys did not have the authority to authorize the appellant to flaunt a court order.The same holds true in this case, regardless of an agreement, if any, between the attorneys as to a different date for trial. Simply put, attorneys do not have the authority to vary a trial date set by the court.

Rischar’s case was set by the court for trial on May 28; neither party filed a motion for continuance or otherwise notified the trial court of a desire to change the scheduled trial date. On May 28, the prosecutor announced ready for trial, but Rischar and his attorney failed to appear. Consequently, the trial court acted within its discretion in affirming Rischar’s conviction. To hold otherwise would be to let the attorneys flaunt the trial court’s order.

Intertwined with Rischar’s first point of error is his second argument that the trial court erred in failing to grant his motion to set aside the judgment because he showed good cause for not being present at trial. He asserts the same explanations as to why he was not present for the scheduled trial date, with the addition of a claim that the State did not have anyone subpoenaed who had seen him driving. The prosecutor countered this claim with assurances to the trial court that the absence of these witnesses would not have affected the case. We do not address this second issue inasmuch as Rischar has not shown good cause for not being present at trial.

Accordingly, the judgment of the trial court is affirmed.


text:
    SMACKOVER STATE BANK v. Phillip R. OSWALT
    91-248
    821 S.W.2d 757
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991

      Michael R. Landers, for appellant.

      Joseph Hickey, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal arose over a dispute as to whether the appellant, Smackover State Bank (Bank), was negligent in establishing a certificate of deposit account as a joint tenancy with right of survivorship, with appellee, Phillip Oswalt, as the surviving joint tenant. The case was certified from the Arkansas Court of Appeals under Ark. Sup. Ct. R. 29(l)(o), as it presents a question in the law of torts.

From the trial court’s finding that the Bank had been negligent in setting up the account, the Bank appeals, raising three points for reversal: 1) the action is barred by the statute of limitations, 2) the Bank substantially complied with the statutory requirements for setting up the account, and 3) the Bank is not bound by a prior decision of the probate court, to which the Bank was not a party. Mr. Oswalt cross-appeals as to the amount of damages awarded. We affirm the trial court’s decision.

Mr. Oswalt’s mother, Claudia Oswalt, conducted business with Smackover State Bank for many years, before her death in 1983. Beginning in 1976, Mrs. Oswalt purchased a number of certificates of deposit, all of which were made payable to Mrs. Oswalt or Phillip Oswalt. It was the Bank’s practice to have Mrs. Oswalt sign the back of the certificate on or following the date of maturity and, at that time, reissue a new certificate in accordance with her instructions. The certificates were the only evidence of the account and no copies were made.

On November 22,1982, Mrs. Oswalt signed the reverse side of a certificate evidencing a balance of $15,000 made payable to “Claudia A. Oswalt or Phillip R. Oswalt, either or survivor.” The certificate had been issued May 24, 1982, and matured the day Mrs. Oswalt signed it. On that same day, a new certificate was issued evidencing the same balance and again certifying the depositor as “Claudia A. Oswalt or Phillip R. Oswalt, either or survivor.” The maturity date was May 23, 1983.

On May 14, 1983, Mrs. Oswalt died. Phillip Oswalt presented the certificate to the Bank on May 25,1983, signed the reverse side, and obtained the proceeds of the account in the form of two cashier’s checks made payable to each of his two children.

In 1987, Mr. Oswalt’s sister filed an objection, in the Probate Court of Ouachita County, to the accounting of Mr. Oswalt. Mr. Oswalt had been appointed personal representative of Mrs. Oswalt’s estate. It was claimed the $15,000 certificate of deposit was estate property. The probate court agreed and issued its order on April 28, 1988, finding that the intended joint and survivor account had not been created in accordance with then Ark. Stat. Ann. § 67-552(a) and ordered Mr. Oswalt to reimburse the estate in the amount of the certificate, plus interest, which he did.

On May 13,1988, Mr. Oswalt filed suit in the Union County Circuit Court, alleging the Bank negligently failed to establish the account with right of survivorship and seeking judgment in the amount of $15,000, plus prejudgment interest. Following a hearing and the submission of post-trial briefs, the circuit court held Mr. Oswalt’s claim was not barred by the statute of limitations and that the Bank was negligent in carrying out Mrs. Oswalt’s wishes that the certificate reflect a survivorship interest. Mr. Oswalt was awarded $10,000 (one third of the $15,000 having already been distributed to him through the estate), plus interest from April 28, 1988, (the date of the probate court’s order) to the date of the circuit court’s order. From this decision, the Bank appeals.

I. STATUTE OF LIMITATIONS

The Bank first argues that Mr. Oswalt’s complaint, which recites only a claim for negligence, is barred by the three year statute of limitations, under Ark. Code Ann. § 16-56-105 (Supp. 1991).

Without question, the three-year statute of limitation of section 16-56-105 applied to Mr. Oswalt’s claim of negligence. See Courtney v. First Nat’l Bank, 300 Ark. 498, 780 S.W.2d 536 (1989). However, where we apply the statute of limitation, we must first determine when the statute began to accrue and whether or not the statute has been tolled. In answering these questions, we refer to our previous cases.

Recently, we reaffirmed the traditional rule that, in cases of professional malpractice, the statute of limitations commences running not when the negligent act is discovered, but when the act occurs. Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991). This principle was utilized in Courtney v. First Nat’l Bank, supra.

Courtney involved a certificate of deposit issued in the names of Richard or David Courtney. No mention was made of right of survivorship. Upon Richard’s death, David claimed the proceeds of the certificate over and against the estate. We affirmed the trial court’s decision that David’s claim was barred by the three-year statute of limitations, agreeing that the statute began running at the time the certificate was issued in 1982, rather than when Richard died in 1986, as the alleged act of negligence occurred at the time the bank failed to obtain a separate writing concerning the survivorship clause of the certificate of deposit.

Likewise, the Bank’s alleged negligence, here, i.e. its failure to properly establish a survivorship account, occurred when it issued the final certificate on November 22, 1982. Mr. Oswalt’s claim began to accrue at that time.

We note that the present case and Courtney are distinguishable from Corning Bank v. Rice, 278 Ark. 295, 645 S.W.2d 675 (1983), a case cited by Mr. Oswalt. In Corning Bank, Melvin Rice purchased several certificates of deposit in which he requested that they be made payable on his death to his brother, Marlin. A controversy later arose between Marlin and the administrator of Melvin’s estate. We recognized the equally established principle that “a statute of limitations does not begin to run until the plaintiff has a complete and present cause of action,” and held that the statute could not have commenced running until Melvin’s death, “for until then, Melvin was free to change the alternative payee or to cash the CD’s himself.” 278 Ark. at 300, 645 S.W.2d at 678.

Unlike Marlin Rice, David Courtney and Mr. Oswalt had access to the proceeds from the moment the certificates were issued, as alternatives payees. They were not required, as was Marlin Rice, to wait until the death of the depositor to bring a cause of action regarding their rights to the proceeds, as they could have withdrawn the money at any time.

Our analysis does not conclude here. We must next consider our rule that the statute of limitation may be tolled during the time a putative plaintiff is prevented from bringing an action to which the statute of limitation applies. Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989).

In Stroud, the negligent act of the attorney resulted in a default judgment against the plaintiff. The judgment was subsequently set aside by the trial court, but then was reinstated by the court of appeals. While acknowledging our continued adherence to the traditional rule, we held the running of the statute of limitations was tolled while the default judgment was set aside. “During that time, although the alleged negligent act had occurred, Stroud had no claim against Ryan, as he could have shown no injury.” 297 Ark. at 474, 763 S.W.2d at 78. “In essence, the injury ceased for a time to exist.” Id.

Here, although the statute commenced running upon the issuance of the certificate, Mr. Oswalt’s claim against the Bank ceased to exist once he was paid the amount of the deposit, six months later. The running of the statute was tolled until the probate court issued its order on April 28, 1988, disallowing the accounting, and Mr. Oswalt’s complaint, filed only two weeks after that date, was thus timely.

Our holding on this issue differs from the trial court, which reasoned the tort cause of action did not accrue until the day Mr. Oswalt’s sister objected to the accounting filed in Mrs. Oswalt’s estate. Yet, by tolling the statute of limitations during the time Mr. Oswalt had no injury, we reach the same conclusion. We will sustain a trial court’s ruling if it reached the right result, even though it announced the wrong reason. West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991).

Mr. Oswalt’s claim also includes breach of contract. Although this claim was not specifically pled, the complaint does state that Phillip Oswalt was the beneficiary of the agreement between Mrs. Oswalt and the Bank to create a joint tenancy with right of survivorship. At trial, both sides agreed the pleadings should be amended to conform with the proof, whereupon Mr. Oswalt’s attorney informed the court that Mr. Oswalt was proceeding on a negligence theory, as well as a third party beneficiary claim for breach of contract. Actions by third persons based on written contracts which are made for their benefit are generally held to be within the five-year statute of limitations governing actions on written contracts. H. B. Deal & Co. v. Bolding, 225 Ark. 579, 283 S.W.2d 855 (1955).

The trial court found the cause of action for breach of contract did not accrue until the probate court issued its order. We find it unnecessary to determine the correctness of this ruling since both theories of recovery are based on the same alleged acts of negligence, and Mr. Oswalt has clearly filed an action, based on his initial theory of negligence, within the applicable statute of limitations.

II. STATUTORY COMPLIANCE

The Bank next claims the trial court erred in finding the Bank did not comply with Mrs. Oswalt’s wishes in establishing a joint survivorship.

The applicable statute is former Ark. Stat. Ann. §67-552 (1965). The statute was subsequently amended by Act 843 of 1983 and is now codified at Ark. Code Ann. § 23-32-1005(l)(A); however, the amendment does not apply retroactively, Courtney v. Courtney, 296 Ark. 91, 752 S.W.2d 40 (1988), and since the certificates of deposit were all created before 1983, they come within the earlier statute.

Section 67-552(a) provides in pertinent part:

If the person opening such account, or purchasing such certificate of deposit, designates in writing to the banking institution that the account or the certificate of deposit is to be held in “joint tenancy” or in “joint tenancy with right of survivorship”, or that the account or certificates of deposit shall be payable to the survivor or survivors of the persons named in such account or certificate of deposit, then such account or certificate of deposit and all additions thereto shall be the property of such persons as joint tenants with right of survivorship.

(Emphasis added.) We have long held there need not be a strict and literal compliance with the wording of the Act, but there must be substantial compliance. Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969); Walker v. Hooker, 282 Ark. 61, 667 S.W.2d 637 (1984). No survivorship interest is created when the decedent does not affix his signature to an instrument complying with the statutory requirement; in other words, we require a writing, signed by the purchaser, and an indication of intention. Walker v. Hooker, supra.

Unfortunately, although there was ample evidence that both the Bank and Mrs. Oswalt intended to create a survivorship interest in Phillip Oswalt, the bank did not substantially comply with the statute in issuing the certificate. We held, in Martin v. First Security Bank, 279 Ark. 273, 651 S.W.2d 70 (1983), that even when the language of the certificate makes a reference to survivorship, the statute requires that the purchaser of the certificate sign a writing stating her intention that the funds be paid to the alternative payee upon the purchaser’s death. There need not be a separate instrument indicating her intention, but there should be a separate writing. See Walker v. Hooker, supra.

Here, the unsigned certificate issued on November 22, 1982, was the only evidence of the account; no copies were made, nor was there any other proof of Mrs. Oswalt’s intention such as a signature card or receipt. Under these circumstances, we cannot say the trial court erred in finding the Bank failed to establish a right of survivorship in favor of Mr. Oswalt.

III. PROBATE COURT DECISION

For its third point of error, the Bank contends that since it was not a party to the Ouachita County Probate proceedings, it cannot be bound by the decision from that court. The Bank argues that, had it been given an opportunity to present evidence in that proceeding, the outcome may have been different.

This matter is not before us; first, because the issue was not raised below, and second, because our review is confined to the circuit court proceedings.

IV. CROSS-APPEAL

Recognizing that, as a beneficiary of Mrs. Oswalt’s estate, Mr. Oswalt had regained a third of the amount of the certificate, the trial court awarded him $10,000, plus interest from the date of the probate court judgment until the date of its own judgment, at the rate of 6% annum, for a total of $11,164.44.

Mr. Oswalt cross-appeals from this award, claiming that the judgment should be modified to reflect the damage he suffered as the result of the probate court decision. That court ordered Mr. Oswalt to repay the amount of the certificate, $15,000, plus interest at 7 '/i% per annum from May 23, 1983, (the date of Mrs. Oswalt’s death) until the estate was repaid. The total amount was $20,612.57. Thus, Mr. Oswalt argues, he should receive two-thirds of this amount, for a total of $13,741.71, plus interest at 6 % from the date of the probate court judgment to the date of the circuit court judgment.

Mr. Oswalt presented no argument below on this issue nor has he cited any authority or offered convincing argument to this court; we therefore decline to consider it. See RLI Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991).

For the foregoing reasons, we affirm.


text:
    Kimberly TUCKER v. James SULLIVAN
    91-274
    821 S.W.2d 470
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991

      Gary Eubanks and Associates, by: William Gary Holt, for appellant.

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a tort case, certified to us from the court of appeals, in which we are faced with differentiating between the status of one who is an “invitee” and one who is merely a “licensee.”

On July 4, 1989, the appellant, Kimberly Tucker, was severely burned in an accident at the home of her fiance, James Sullivan, the appellee. Ms. Tucker had been residing with Mr. Sullivan since mid-May of that year. Ms. Tucker alleged that as she was washing and drying clothes, she kicked over a gas can, spilling gasoline on her jeans. Realizing what she had done, she decided to go and change; before doing so, however, she started the dryer. Ms. Tucker failed to realize the dryer was a gas dryer, which had an open flame near her feet. The guard plate had been removed. The gasoline ignited, causing severe injuries.

Ms. Tucker filed suit against Mr. Sullivan, alleging he failed to use ordinary care to maintain the premises in a reasonably safe condition, and that he knew of the danger caused by the proximity of the gasoline to the unguarded gas dryer, but failed to warn her.

Mr. Sullivan moved for partial summary judgment, asking the trial court to declare that, at the time of the accident, Ms. Tucker was a licensee on the premises. Mr. Sullivan’s theory was that Ms. Tucker was either a tenant on the premises, since she paid bills and living expenses, or a social guest, and, under either classification, she would be deemed a licensee, rather than an invitee, under Arkansas law.

The trial court granted Mr. Sullivan’s motion, finding that since Ms. Tucker’s living arrangement with Mr. Sullivan was for social purposes, she could not be considered an invitee. This holding resulted in the dismissal of Ms. Tucker’s ordinary negligence claim since a landowner owes only a duty to refrain from injuring a licensee through wanton and willful conduct. The trial court found, as a matter of law, that Mr. Sullivan’s conduct did not rise to this level. The parties proceeded to trial on the issue of Mr. Sullivan’s duty to warn Ms. Tucker and the jury was instructed on this issue in accordance with the duty owed a licensee. A verdict was returned in favor of Mr. Sullivan.

Ms. Tucker now appeals, claiming the trial court erred in granting Mr. Sullivan’s motion for partial summary judgment and in instructing the jury that she was a licensee as a matter of law. We affirm.

In considering Mr. Sullivan’s motion for pretrial summary judgment, the trial court had before it briefs from both parties, the pleadings, and Ms. Tucker’s deposition. Summary judgment, like a mistrial, is an extreme remedy, and should only be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Morris v. Valley Forge Ins. Co., 305 Ark. 25, 805 S.W.2d 948 (1991).

The facts before trial were essentially undisputed. Ms. Tucker explained in her deposition that she met Mr. Sullivan at the Day’s Inn Hotel, where Mr. Sullivan was working as a security guard. At the time, Ms. Tucker was receiving psychiatric treatment and was on leave from a North Little Rock hospital. She and Mr. Sullivan developed a friendship and he visited her in the hospital. Ms. Tucker stated that, following her discharge, “[Mr. Sullivan] asked me to live with him if I didn’t have anywhere else to live. But he did invite me to come into his home.”

Ms. Tucker subsequently moved in with Mr. Sullivan in May, 1989, and the two became engaged to be married. Ms. Tucker testified Mr. Sullivan quit his job soon after she moved in and that she paid all of their living expenses, including the house payment and utilities. Mr. Sullivan also stated Ms. Tucker paid all of the living expenses, in his motion for partial summary judgment.

Ms. Tucker argues that because her living arrangement with Mr. Sullivan inured to his benefit, she should be considered an invitee. She cites the court to one of the alternative portions of AMI 1106, which recites the distinction between “licensee” and “invitee.” “A licensee is a person who goes upon the premises of another with the consent of the owner for his own purposes and not for the mutual benefit of himself and the owner.” (Emphasis added.) The “mutual benefit” language is included as part of the definition of “invitee.” The question is whether we should extend the meaning of “mutual benefit”, in classifying a person as an invitee, to include situations in which the primary purpose of the “invitation” is social. The trial court refused to do so and we agree.

Although we have not previously been confronted with a factual situation of this nature, we have cited, with approval, Dean Prosser’s definition of an invitee as “one induced to come onto property for the business benefit of the possessor.” Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991); Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984).

Other courts and scholars, in conferring upon a visitor the status of “invitee,” have also looked to the “business” relationship between the possessor and the visitor. “One entering premises on invitation does not enjoy the status of invitee unless the entry is made in connection with the business or purposes of the owner. . . If the invitation is purely for the benefit, convenience or pleasure of the one invited, he is a licensee. . . and not an invitee.” 65 C.J.S. Negligence § 63 (41) (1966). In accord, is 62 Am. Jur. 2d Premises Liability §91 (1990): “[A] visitor is no more than a licensee where he enters the premises of another, not in response to any inducement offered by the owner or occupant, or for a purpose having some connection with a business actually carried on there by the occupant, but for his own mere pleasure, convenience, or benefit.” (Emphasis added.)

This interpretation is reflected in Restatement (Second) of Torts §332 (1965), which defines invitees thusly:

(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

Ms. Tucker, however, points to comment i of this section, which states: “A member of the possessor’s family, although ordinarily a bare licensee is a business visitor if he pays board or gives other valuable consideration for his residence on the possessor’s land.” This statement, taken alone, may justify Ms. Tucker’s position; however, it is important, as suggested by the above-cited treatises, that we look at the purpose of the visit and the possessor’s • “invitation.”

First, Ms. Tucker’s deposition testimony raises doubt as to whether Mr. Sullivan actually “invited” her into his home, or whether he merely acquiesed to the arrangement. His words were that she could live there “if she had no place else to go.” “Mere acquiescence in, or toleration of, an entry into, or use of, premises for purposes in which the owner or occupant has no beneficial interest does not give to the person so entering the status of an invitee. . .” 65 C.J.S., supra § 63(43). Even assuming Mr. Sullivan extended an invitation to Ms. Tucker, courts usually require a showing that the invitee’s “presence on the land was, actually or apparently, desired by the defendant, generally for some purpose other than social intercourse.” 62 Am. Jur. 2d, supra, § 89.

There is simply no evidence of a business relationship between the parties, nor is there evidence that Mr. Sullivan and Ms. Tucker contemplated anything other than a social arrangement when Ms. Tucker moved into the home. The fact that she began paying living expenses was merely incidental to the romantic relationship, and there is no indication that she was under any obligation to do so. To hold that Ms. Tucker was actually an invitee, rather than a licensee as would be any normal member of a household, would require us to so hold in every situation involving live-in lovers and, perhaps even, spouses.

In sum, the trial court was correct in granting summary judgment on this issue.

At trial, the evidence varied in that Mr. Sullivan testified Ms. Tucker did not pay any bills whatsover. He testified she bought a few things for his daughter, Lee Ann, who verified this fact and who stated also that Ms. Tucker paid “some bills.” Otherwise, the evidence was substantially the same.

Consistent with its earlier ruling, the trial court properly instructed the jury Ms. Tucker was a licensee as a matter of law, and as to the duty owed a licensee by Mr. Sullivan under AMI 1103. That instruction states:

An owner of property owes a licensee no duty until his presence on the premises is known or reasonably should be known. Then the owner owes the licensee only a duty not to cause him injury by willful or wanton conduct. If, however, the owner knows or reasonably should know that a licensee is in a position of danger, he is under a duty to use ordinary care to avoid injury to the licensee. But the owner does not owe the licensee a duty to exercise ordinary care if the danger is or should be open and obvious to the licensee.

We hold this ruling, too, was correct. Whether Ms. Tucker paid some or all of the bills is irrelevant to our decision, here, since the focus of our holding is the fact that the purpose of the invitation and visit was for her social convenience, which made her a licensee.

Affirmed.


text:
    The UNIVERSITY HOSPITAL of Arkansas v. Jennifer UNDERNEHR and Jerry Undernehr
    91-71
    821 S.W.2d 27
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991

      Raymond Harrill, for appellant.

      Marvia Mclvor, for appellees.
   Jack Holt, Jr., Chief Justice.

The issue in this case is whether the trial court erred in granting the motion to dismiss made by the appellees, Jennifer and Jerry Undernehr. We find that it did and reverse and remand.

On May 17,1989, the appellant, The University Hospital of Arkansas (Hospital), filed the underlying action against the Undernehrs for the collection of a past-due hospital bill in the amount of $20,902.81. An affidavit of account was appended to the complaint, but it did not contain a detailed statement of account.

The Undernehrs filed a motion to dismiss on June 21, 1989, pursuant to Ark. R. Civ. P. 12, and alleged that the Hospital’s medical services had been provided in February 1987 and that the Hospital was barred by the two year statute of limitations codified at Ark. Code Ann. § 16-56-106 (1987). The Hospital responded and asserted that it was exempt from application of the statute of limitations via the sovereign exemption and specifically stated that “[t]here is no allegation in the motion to dismiss as to when the last payment was made, nor that no payment was made since the date of providing services. There is therefore nothing to demonstrate that the complaint is not timely, even if the statute were to apply.”

On October 3,1990, counsel for the Hospital wrote the trial court requesting that the motion to dismiss be ruled upon as a matter of law. On December 13, 1990, the trial court entered an order dismissing the action.

On appeal, the Hospital alleges two points of error: 1) the trial court erred in entering judgment under Rule 12(b) by considering facts not in the record without developing any factual record, and 2) the trial court erred in applying section 16-56-106(b), the two year statute of limitations, to an action brought by the sovereign.

Since we agree with the Hospital’s first point of error and reverse the trial court, we will confine our discussion to that argument.

In Mid-South Beverages, Inc. v. Forrest City Grocery Co., 300 Ark. 204, 778 S.W.2d 218 (1989) (citing Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989)), we noted that in reviewing a trial court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in a light most favorable to the plaintiff. It is improper for the trial judge to look beyond the complaint to decide a motion to dismiss.

Using this standard of review, the Hospital’s complaint and the attached affidavit of account do not reference the dates services were rendered, nor do they recite relevant payment history on the account. For the most part, they serve to allege a sum certain that “is now justly due and owing Plaintiff by Defendant.” Accordingly, although the Undernehrs claim in their motion to dismiss that the Hospital’s services were rendered in February 1987, there is nothing in the complaint form which the trial court could have discerned the applicable dates of occurrences that would have caused the statute to run or be tolled.

The Hospital also requests attorneys’ fees incurred in connection with this appeal pursuant to Ark. Code Ann. § 16-22-308 (Supp. 1989), which provides as follows:

In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.

However, this statute allows a trial court to assess a reasonable attorneys’ fee and is inapplicable upon appeal. See Ark. R. Civ. P. 2.

Accordingly, we reverse and remand for further proceedings.


author: Robert H. Dudley, Justice.

text:
    Cleveland BAILEY v. STATE of Arkansas
    CR 91-186
    821 S.W.2d 28
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991

      William C. McArthur, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of possession of a controlled substance with intent to deliver and of possession of drug paraphernalia. He appeals and argues that the evidence at trial was insufficient to sustain the verdict. There is no merit in the argument and, accordingly, we affirm.

Appellant and his co-defendant, Tiffany Mitchell, were arrested when police searched the house they were occupying and found drugs and drug paraphernalia. The testimony introduced at appellant’s trial is as follows. Three police officers went to the residence located at 320 North Laurel in North Little Rock pursuant to a search warrant. They first knocked on the kitchen door and loudly announced themselves as police officers. A voice, that one officer recognizes as appellant’s, responded, “Who is it? Just a minute.” This phrase was repeated several times with the speaker’s voice getting fainter, sounding as if he were moving towards the back of the house. The officer testified he also heard footsteps which sounded like a large man running in the house. Appellant is a large man. An officer heard movement in the bathroom area. At that time the officers burst in the residence and found appellant in bed attempting to pull a sheet up over himself and found Tiffany Mitchell hiding in the bedroom closet. They found twenty-one (21) rocks of crack cocaine in the bathtub and on the floor around the toilet and three (3) razor blades containing traces of cocaine on the kitchen table and cabinet.

Various documents were found in the drawers of, and on top of, a dresser, and inside appellant’s briefcase. Several of the documents, including a letter written to appellant and his car insurance policy, reflected that his address was 320 North Laurel. Other documents found indicated appellant’s address was elsewhere, and two (2) documents listed a Rehema Settles as residing at 320 N. Laurel.

The State proved additional facts which linked appellant to the address: When police conducted the search, they found a small dog, which appellant identified as his. In addition, the bedroom closets were full of men’s clothing, and the police testified they saw no women’s clothing in the closets. The clothes appeared to be appellant’s size. An officer testified that a “buy” of cocaine by a confidential informant had taken place at 320 North Laurel approximately three (3) hours prior to the search. Additionally, the officer observed appellant going into the residence shortly before the buy took place. This'officer also testified that he had participated in surveillance of the residence for a year prior to the search and had observed appellant at the residence on a regular basis. Testimony was given by a utility bill collector that he had gone to 320 North Laurel in mid-afternoon of the day of the search to collect the electric bill which was due for that address, and that appellant was there and paid the bill.

Appellant and co-defendant Mitchell both testified. Appellant testified that he was purchasing the duplex located at 320 and 322 North Laurel, but that 320 was rented to a Rehema Settles at the time of the search. Appellant claimed he knew nothing about the drugs. Both appellant and co-defendant Mitchell stated that, at the time of their arrest, they had just returned from a week-long trip to New Orleans and had been in the duplex only a few hours before the search occurred. They testified that they had picked up the key to that side of the duplex from Rehema Settles on their way back into town. Mitchell testified that neither she nor appellant had used the bathroom while they had been there. Appellant testified that he lived elsewhere.

In reviewing the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the appellee and affirms the verdict if there is substantial evidence to support it. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). Substantial evidence is defined as evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another, without resorting to speculation or conjecture. Jones v. State, 269 Ark. 19, 598 S.W.2d 748 (1980).

In order to prove a defendant is in possession of a controlled substance, constructive possession is sufficient. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Neither exclusive nor actual, physical possession of a controlled substance is necessary to sustain a charge. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). Constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the accused, or when it is in the joint control of the accused and another. Osborne, supra. However, joint occupancy alone is not sufficient to establish possession or joint possession; there must be some additional factor linking the accused to the contraband. Id. See also Embry v. State, 302 Ark. 608, 792 S.W.2d 318 (1990). In Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988), we announced that, in addition to joint occupancy, the State must show additional facts and circumstances indicating the accused’s knowledge and control of contraband.

Using the foregoing factors, there was sufficient evidence of constructive possession of the drugs and drug paraphernalia in this case. There was substantial evidence from which the finder of fact could have found that appellant had an ownership interest in the duplex, lived there, and was present when the search was conducted. His voice was initially heard at the front of the house, which was near the kitchen. The razor blades with traces of cocaine were found in the kitchen. There was evidence that an officer heard footsteps and could tell that appellant ran toward the back of the house where the bedroom and bathroom were located. Drugs were discovered in the bathroom area, and appellant was found in the bedroom. Such evidence is circumstantial evidence from which the finder of fact could have concluded that appellant was attempting to dispose of the drugs in the bathroom when the police broke in and thus had knowledge and control of contraband.

Affirmed.

Holt, C.J., not participating.


text:
    Joyce Cook FERGUSON, Executrix of the Estate of Carter Ware Ferguson v. The ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA
    91-87
    821 S.W.2d 30
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991

      George Bailey, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by; John E. Moore and Valerie Denton for appellee.
   Robert H. Dudley, Justice.

The plaintiff, in her capacity as personal representative, filed suit against the defendant, a fraternal benefit society, for the proceeds of a life insurance policy on the decedent. The trial court ruled that the suit was not brought within the contractual period of limitation and granted summary judgment. The plaintiff appealed to the court of appeals. In an unpublished opinion issued on April 3, 1991, a division of three judges reversed the judgment of the trial court. The defendant insurance carrier petitioned for rehearing and, upon a hearing by the full court, three of the judges voted to deny rehearing. It takes a majority of the court to grant rehearing, see Ark. Code Ann. § 16-12-114 (1987), so rehearing was denied on the three-to-three vote. See Ferguson v. The Order of United Commercial Travelers of America, 35 Ark. App. 100, 811 S.W.2d 768 (1991).

We have traditionally granted certiorari for the review of tie-vote court of appeals’ decisions that affirm a judgment of the trial court. This was the first case in which we were asked to grant certiorari because of a tie vote denying rehearing. We concluded that the same policy should be applicable in both situations and granted certiorari. On the merits of the case, we affirm the ruling of the trial court granting summary judgment.

This case concerns the applicable limitation period for filing suit on a fraternal benefit society insurance contract. The trial court had before it the pleadings, the insurance contract, and other documents. These materials established the following facts. Plaintiff-appellant, Joyce Cook Ferguson, is the widow of Carter Ware Ferguson, the executrix of his estate and the beneficiary of a policy of accident insurance on the life of Carter Ware Ferguson. The policy was issued by appellee, the Order of United Commercial Travelers of America (UCT). UCT is an incorporated fraternal benefit society. Fraternal benefit societies are treated, in part, separately from other types of insurance companies. See Ark. Code Ann. §§ 23-74-102, -103 (1987). The policy provided for the payment of $20,000.00 to the beneficiary in the event of Mr. Ferguson’s accidental death. He sustained injuries in an automobile accident in November 1983 which were the alleged cause of his death on February 4,1984. On February 27, 1984,the plaintiff provided to UCT proofs of loss in accordance with the terms of the policy. On June 28, 1984, UCT denied the claim, asserting that the cause of death was not the accident. The plaintiff did not file suit until February 2, 1989, or more than three years after the proof of loss was required.The policy contained the following provision: “No action at law or equity . . . shall be brought after the expiration of three years after the time written proof of loss is required to be furnished.”

UCT moved for summary judgment because the plaintiff’s cause of action was not filed within the above quoted contractual limitation period. The trial court granted the motion. On appeal, the plaintiff argues that summary judgment for UCT was in error for either of two reasons: (1) UCT waived the contractual limitation period, or (2) there was an ambiguity in the contract as to whether the contractual period or a longer statutory limitation period should be applied.

The plaintiff argues that, in the “Additional Provisions” section of the policy, UCT expressly waived the contractual three-year limitation. “Additional Provision 4” states: “Any provision of this certificate which, on its effective date, is in conflict with the statutes of the state in which the member resides on such date, is hereby amended to conform to the minimum requirements of such statutes.” Plaintiff concludes that, because of this additional provision, the contractual limitation period must be made to conform with the five-year statute of limitations for actions on writings under seal. See Ark. Code Ann. § 16-56-111(b) (1987). If the five-year statute of limitations was the minimum requirement for fraternal benefit societies the argument might have merit, but that is not the case. Ark. Code Ann. § 23-74-121(c)(l) (1987), a statute applicable to fraternal benefit societies at the time this suit arose, provided that no life benefit certificate could be issued by a society with a limitation of action period of less than two (2) years. Because the contractual limitation period contained in the policy did not conflict with the minimum requirement of Arkansas law, there was no need to amend the contractual period. Thus, there is no express waiver of the contractual three-year limitation by the “Additional Provision” of the policy.

The plaintiff relies upon cases from other jurisdictions in support of her waiver argument. However, those cases are not applicable. They involve implied waiver and illustrate the general rule that:

While a company may insert a contractual period shorter than the statutory period of limitations, it cannot avail itself of such provision if it has deceived the insured into believing that the provision would be waived. Thus, if a delay in instituting suit is due to the fault of the insurer, the action is not barred.

20A J.A. & J. Appleman, Insurance Law and Practice § 11639 (rev. vol. 1980). In the present case, there is no indication that UCT did anything to cause the plaintiff to delay or to prevent her from bringing her action within the contractual period. Thus, UCT neither expressly nor impliedly waived the three-year limitation.

The plaintiff’s next point of appeal is that the quoted contractual limitation period and the quoted “Additional Provisions” paragraph together create an ambiguity as to whether the contractual limitation or the statutory limitation should apply. This argument also is without merit. The mere fact that the contractual limitation is shorter than a general statutory limitation does not create an ambiguity. It has long been the rule in Arkansas that parties are free to contract for a limitation period which is shorter than that prescribed by the applicable statute of limitations, so long as the stipulated time is not unreasonably short and the agreement does not contravene some statutory requirement or rule based upon public policy. City of Hot Springs v. Nat’l Surety Co., 258 Ark. 1009, 531 S.W.2d 8 (1975). Because the three-year contractual limitation is longer than the minimum two-year period of Ark. Code Ann. § 24-73-121 (c)(1), it is not per se unreasonable.

In addition, it is not unreasonable under our case law. We have said that:

A period of time so short as to amount to an abrogation of the right of action would be unreasonable. But it is implicit in the decisions on the subject that the stipulated period is not unreasonable if the time allowed affords a plaintiff sufficient opportunity to investigate his claim and prepare for the controversy. [Citations omitted.]

City of Hot Springs v. Nat’l Surety Co., 258 Ark. at 1013, 531 S.W.2d at 10. In that case, we approved a two-year limitation period in a surety bond contract. Moreover, in Insurance Co. v. Brodie, 52 Ark. 11, 11 S.W. 1016 (1889), we approved a six-month contractual limitation of action in an insurance policy. The three-year period in the present case gave appellant sufficient opportunity to investigate her claim and prepare her case against the insurance company. The record contains no explanation for her delay. Because the contractual limitation is reasonable, the statutory limitation does not prevail.

Summary judgment is an extreme remedy which should be allowed only when there is no issue of fact to be litigated. Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990). In the present case, the contractual period of three (3) years is clearly applicable. There is no dispute that appellant did not file her action on the certificate within three (3) years of the time that proof of loss was required to be furnished to appellee. Because her action was not filed within the applicable limitation period, it is barred, and there remains no issue of fact to be decided.

The decision of the court of appeals is reversed, and the trial court’s ruling is affirmed.


author: Steele Hays, Justice.

text:
    Mike HENGEL and Donrey, Inc., d/b/a Pine Bluff Commercial v. CITY OF PINE BLUFF and Chief of Police Bobby Brown
    91-108
    821 S.W.2d 761
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991

      Ramsay, Bridgforth, Harrelson & Starling, by: Spencer F. Robinson and David M. Olive, for appellants.

      Robert Tolson, Jr., for appellees.
   Steele Hays, Justice.

This cause originated as a Petition for Access to Records Under the Arkansas Freedom of Information Act (FOIA) filed in the Jefferson Circuit Court. The petition was filed by appellants, Mike Hengel and Donrey, Inc., d/b/a Pine Bluff Commercial. It sought to compel the City of Pine Bluff and Police Chief Bobby Brown to provide access to the jail log, shift sheet, incident and arrest reports and any other records prepared by the offices of the City of Pine Bluff. The records requested were documents regarding the arrest of a suspect in the December 13, 1990, murder of Lenora King.

Acting on a tip that a suspect had been arrested in the King case and having checked police records on December 21st and 22nd without finding mention of an arrest, police reporter DeAnn Smith went to the police department on December 24,1990, and requested a copy of the jail log. The sergeant informed her that the record would not be available until Wednesday, December 26th at 8:00 a.m. the next regular business day.

Later that day a police officer confirmed there had been an arrest and Smith was told she needed to talk to the information officer, Captain Mossburg. Mossburg was uncertain whether there had been an arrest and told Smith she should talk to Captain Adkins, the shift captain, who said he was not aware of an arrest. Adkins refused to let Smith see the jail log and referred her to Chief Bobby Brown. Chief Brown said he did not know if there had been an arrest and doubted whether anyone could provide her with that information. Ms. Smith turned her information over to a fellow reporter, Scott Ritter, who called Chief Brown and requested a copy of the jail log on December 24,1990. Brown refused to permit inspection of the jail log because he was concerned that it would jeopardize the case.

Smith returned to the police department on December 26th and jail logs covering Friday afternoon of December 21, 1990, through December 26 were shown to her. The logs did not reflect an arrest in the Lenora King murder. Smith then requested the jail log for Thursday December 20th through Friday afternoon December 21st. The logs were finally released to her and there was an arrest for capital murder, however, the name and address of the person had been blacked out. Upon further inquiry, Smith was referred to the prosecuting attorney’s office and was informed that charges had been filed earlier that day against James Jones, Jr. for the murder of Lenora King. Smith subsequently learned that Jones had been arrested on December 20, and jailed on December 21st.

After a hearing the court held that the jail log, shift sheet, incident reports, arrest reports and all other reports and records kept in the usual operation of the Pine Bluff Police Department are public records within the meaning of the Arkansas FOIA, Ark. Code Ann. § 25-19-105 (1987), and should be open to inspection and copying during the regular hours of the custodian of the records. Despite its finding that the documents are public records, the court further found that the appellees did not violate the FOIA because release of the information to the public would jeopardize an ongoing investigation, therefore, the records fall within the scope of the “undisclosed investigation” exception to the Act.

The question is now before this Court on appeal by the Pine Bluff Commercial. Three issues are presented: (1) whether the trial court erroneously applied the “undisclosed investigation” exception to the records requested; (2) whether the Pine Bluff Police Department violated the FOIA when it excised portions of a public record; and (3) whether the trial court erred in holding that the police department’s public records only have to be made available for inspection between 8:00 a.m. and 4:00 p.m., Monday through Friday, excluding holidays.

The trial court held, and the parties do not dispute, that the jail logs, arrest records and shift sheets are “public records” for purposes of the FOIA. The appellants assert, however, that these records are not “undisclosed investigations” and, therefore, are not exempt from disclosure.

The Arkansas Freedom of Information Act, Ark. Code Ann. § 25-19-105(a) and (b)(6) (Supp. 1991) provides:

(a) Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas during regular business hours of the custodian of the records.
(b) It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter:
(6) Undisclosed investigations by law enforcement agencies of suspected criminal activity.

The newspaper contends that it has a statutory right of routine access to the police department jail log, arrest records and shift sheet.

The record is unclear as to the precise form of these documents however, the information contained in them is apparent. The jail log includes the time a suspect is brought to the jail, the name of the arresting officer, the charge and the time and date of booking. The arrest record contains pertinent personal information about the person arrested such as the suspect’s name, sex, race and date of birth, what the person is charged with, and it may or may not state facts surrounding the arrest.

Upon arrival for duty a jailer on each shift inspects the shift sheet listing the people that are incarcerated to make sure all prisoners are accounted for. The shift sheet also includes what each person was arrested for, the prisoner’s sex, who the trustees are that are available for work, and the names of the jailer and matron.

Prior decisions of this Court that deal with the “undisclosed investigation” exception to the FOIA are not helpful because they either involved a request for records which were clearly “investigative” or concerned an investigation that had been closed and, thus, outside the exception. Arkansas Gazette v. Goodwin, 304 Ark. 204, 801 S.W.2d 284 (1990); Martin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 (1990); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989); City of Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988).

While we find no cases that address this issue, there are opinions of the Attorney General that conclude that certain arrest reports are subject to disclosure under the FOIA. Arkansas Att’y Gen. Op. 87-115 (reports concerning traffic violations); Arkansas Att’y Gen. Op. 82-59 (arrest records). According to J. Watkins, The Arkansas Freedom of Information Act 72 (1988), the records that the Attorney General has concluded are not exempt under subsection (b) (6) are “apparently not sufficiently investigative in nature to qualify for the exemption, since they are not internal ‘work product’ materials containing details of an investigation.” Professor Watkins reason that withholding such records would not serve any of the policy goals underlying the law enforcement exemption even though privacy or reputational interests of the suspect may be implicated. He concludes that those interests are outweighed by the strong public concern with official government action that marks the beginning of the criminal justice process. Id.

Almost every state has some type of open records law similar to the Arkansas FOIA and although our provision is unique, other states have provisions which except records dealing with the investigation of crime. See generally City of Fayetteville v. Rose, supra; Caledonian Record Publishing Co. v. Walton, 154 Vt. 15, 573 A.2d 296 (1990); A Practicable Review of State Open Record Laws, 49 Geo. Wash. L. Rev. 720 (1981). In analyzing this issue we are guided by decisions from other states dealing with arrest records. With some exceptions, the cases dealing with arrest records and the like have generally held such records not to be exempt from public disclosure. K. Gorier Karnezis, Annotation, Validity, Construction, And Application of Statutory Provisions Relating To Public Access To Police Records, 82 A.L.R.3d 19 (1978). The Vermont Supreme Court, for example, concluded that arrest records are not records dealing with the detection and investigation of crime under the exception from disclosure within the Vermont Access To Public Records Act, but rather, are the product of such investigation subject to required disclosure under the Act. Caledonian Record Publishing Co. v. Walton, 154 Vt. 15, 573 A.2d 296 (1990).

Likewise, in State v. Lancaster Police Dept., 38 Ohio St.3d 324, 528 N.E.2d 175(1988), the court held that the arrest record docket book, which is a continuous chronological listing of the daily arrest, detention and citation activity of the Lancaster Police Department, is not a confidential law enforcement investigatory record within the exception of the Ohio Public Record Law, and is therefore subject to disclosure.

Particularly instructive is a Texas case in which the Houston Police Department maintained several different types of records relating to criminal activities that a newspaper sought access to the under the Texas Open Records Act. Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App. 1975). The police department refused to disclose the information relying on the provision of the Open Records Act which exempts from disclosure “records of law enforcement agencies that deal with the detection and investigation of crime. . . .” The Texas Court of Civil Appeals construed the exception to include only such matters as “officers’ speculations of a suspect’s guilt, officers’ views as to the credibility of witnesses, statements by informants, ballistics reports, fingerprint comparisons, or blood and other laboratory tests.” Id. at 187. The court reasoned that providing access to such records might reveal the names of informants, creating a threat of intimidation of potential prosecution witnesses and endanger the State’s position in criminal prosecutions by the use of such materials to the disadvantage of the prosecution. Id. The court then held that the offense report, which included such documentation as that information that the court construed as fitting into the exception to the Act was not open to the public. The court concluded, however, that the arrest records, which contained information about an arrestee such as name, race, aliases, place and date of birth, physical description, history of arrests, the offense charged with, time of arrest, booking number and arresting officers, were an entirely different matter and must be disclosed in the public’s interest.

In addition to the guidance provided by Caledonian Record Public Co., Lancaster Police Dept., and Houston Chronicle Publishing Co., there are additional factors that persuade us that the records requested in this case should be open to the public under the Arkansas FOIA. First, the record is insufficient to sustain a holding that the jail log, arrest record, and shift sheet were investigatory in nature to fit within the exception to public disclosure. While the testimony elicited provides a description of what information each record contained, that information does not indicate that the records are sufficiently investigative in nature to qualify for the exemption. There was testimony by Chief Brown explaining that there were two suspects in the case and the department was trying to keep Jones’ name out of the paper so that the other suspect would not abscond to avoid apprehension, but, there was no proof regarding the existence of another suspect nor were there other arrests in the Lenora King murder. The appellees argue that the decision to reveal the name of a suspect should be based on whether or not it would hinder an investigation and that assessment should be made on a case by case basis by the officer in charge of the investigation. But that reasoning would broaden the “undisclosed investigation” exception and that comes within the province of the legislature rather than this Court.

Second, the rules of statutory interpretation that have been applied to the Arkansas FOIA convince us these records must be disclosed. In the first opinion interpreting the FOIA this Court ruled that the Act was passed for the public benefit and was to be liberally construed. In Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968) the Court stated:

Whether a statute should be construed narrowly or broadly depends upon the interests with which the statute deals. As a rule, statutes enacted for the public benefit are to be interpreted most favorably to the public. In the act now before use the General Assembly clearly declared the State’s public policy: “It is vital in a democratic society that public business be performed in an open and public manner.” We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved.

Id. at 404-405, 432 S.W.2d at 755; See also J. Watkins, The Arkansas Freedom of Information Act 4-8 (1988).

The Court in Laman also concluded that in accordance with this principle, FOIA exceptions are to be narrowly construed. That holding was reaffirmed in Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986):

We conclude that the objectives of the FOIA are such that whenever the legislature fails to specify that any records in the public domain are to be excluded from inspection, or is less than clear in its intendments, then privacy must yield to openness and secrecy to the public’s right to know the status of its own affairs. We hold, therefore, that the burden of confidentiality rests on the legislation itself, and if the intention is doubtful, openness is the result.

Id. at 85-86; 702 S.W.2d at 25; See also Watkins, supra.

Accordingly, we hold that for purposes of the FOIA the jail log, arrest records and shift sheet are not records containing undisclosed law enforcement investigations and are subject to disclosure pursuant to Ark. Code Ann. § 25-19-105 (1987).

The Commercial also contends that it is a violation of the FOIA to alter public records, or to black out information in the jail log as occurred here. We have no hesitation in agreeing with that contention. To expunge, excise or alter in any way information open to public inspection is a denial of the rights granted by the FOIA, thus, clearly in violation of the Act.

Appellants’ final argument is that it was error for the circuit court to hold that the public’s access to the records of the Pine Bluff Police Department was limited to 8:00 a.m. to 4:00 p.m., Monday through Friday, excepting legal holidays. We cannot sustain that holding. The Arkansas FOIA provides that public records are to be open to inspection “during regular business hours of the custodian of the records.” The Pine Bluff Police Department operates twenty-four hours a day, seven days a week. When the nature of an agency of the public of necessity operates twenty-four hours a day, it follows in the absence of some showing to the contrary that those are its “regular business hours.” That being so, its records must be available for reasonable inspection at all times during those hours of operation.

Reversed.