author: Robert L. Brown, Justice.

text:
    Franklin J. DALEY v. Marguerite Ann BOROUGHS and Timothy Patrick Daley, Intervenor
    91-355
    835 S.W.2d 858
    Supreme Court of Arkansas
    Opinion delivered July 13, 1992

      Karen Johnson, for appellant.

      Stephens Law Firm, by: Greg Stephens, for appellee.
   Robert L. Brown, Justice.

Appellant Franklin J. Daley contests the authority of a special judge to decide the competency issue in this case. He further appeals from the order of the regular probate judge which admitted the will to probate. The regular probate judge’s order expressly incorporated the special judge’s letter opinion which found that the testator, Robert Patrick Daley, had the capacity to make a will. We hold that the special judge had the authority to act, and we affirm his findings and the subsequent order of the probate court.

The testator had three adult children: appellant Franklin J. Daley, appellee Marguerite Ann Boroughs, and Timothy Patrick Daley, who was disinherited by mutual agreement with the testator. On November 3, 1989, the testator and his wife executed reciprocal wills leaving everything to their two adult children, Franklin and Marguerite, share and share alike. Franklin and Marguerite were also appointed co-executors of the two wills.

Mrs. Daley predeceased the testator, and the property under her will passed to Franklin and Marguerite. On August 18, 1990, the testator, age seventy-five, was hospitalized at the Veterans Administration Hospital in Little Rock for fever, disorientation, and incontinence. While in the hospital, he asked to see his lawyer. Four days later, on August 21, 1990, attorney Frank Dudeck brought a new will to the hospital for the testator’s execution. The attorney had prepared the will after being advised by Marguerite that the testator desired to change his will to leave his house to her and appoint her as sole executrix of his will. The residuary clause was to remain the same with Franklin and Marguerite sharing equally.

Timothy Daley maintained at trial that three weeks before the testator’s final illness the testator had agreed with Marguerite that they both would sell their houses, buy a new house, and move in together. The testator, according to Timothy, wanted to be sure that Marguerite had a roof over her head. Timothy added that the testator said everything he had would be hers. Franklin disputed this testimony.

When he was admitted to the hospital, the testator was running a fever and not receiving enough oxygen to function properly. Hospital personnel also wrote on his chart that he was confused and disoriented at times over the next three days and required soft restraints on his wrists and a posey vest to keep him in bed. He was, for the most part, incapable of speaking. On August 21, 1990, at times during the day, he was described on the chart as being more alert and feeling better, and his temperature was about normal. At other times, his temperature had spiked upwards in excess of one hundred degrees.

Four lay witnesses were present in the hospital room beginning at about 6:30 p.m. on August 21, 1990, when the testator considered and then executed the second will: Frank Dudeck, his attorney; Edwina Keith, Dudeck’s secretary and a notary public; Joan Gregory, a disinterested witness who happened to be at the hospital; and Robin Gregory, a second disinterested witness who was the daughter of Joan Gregory. Neither Franklin nor Marguerite were present in the room for this meeting or for the will’s execution, although Marguerite was at the hospital prior to the meeting. The time expended on the execution of the second will was estimated at two hours or more by Frank Dudeck. During this period, the testator was in bed. He wore an oxygen mask and could not communicate verbally. Dudeck drew up charts to assist the communication. One chart was marked “Yes” and “No”; the second chart was designated “Marguerite,” “Frank,” and “Something else.” Dudeck posed questions to the testator, using the “Yes” and “No” chart before the witnesses came in. The Gregorys then entered and Dudeck asked questions and referred to the second chart as well as the “Yes” and “No” chart. The testator would answer with a nod or shake of the head, or by pointing his pencil to the correct category on the charts, or by actually making a mark on those charts. The Gregorys estimate that they were in the room for forty-five minutes.

During the conference and with the witnesses present, it developed that the testator did not agree with the new will as drafted. Rather, he wanted Marguerite to take the entire residuary estate and, in effect, to write Franklin out of the will completely. The new will was amended by Dudeck to do that and was then initialed and signed by the testator at approximately 8:45 p.m. The testator died seven hours later on August 22, 1990 at about 3:55 a.m. Probable cause of death was pulmonary complications.

Following the testator’s death, there was flurry of activity on the part of Franklin and Marguerite. Franklin asked for and received a temporary injunction against Marguerite’s acting as executrix or removing the testator’s property. Marguerite requested a temporary restraining order against Franklin’s harassing her and was granted an order. Franklin was ordered to prepare an inventory and to return items he took from the testator’s residence. Franklin petitioned to probate the November 3, 1989 will, and Marguerite objected on grounds of undue influence. Timothy Daley intervened as an interested party. Marguerite petitioned to probate the August 21, 1990 will. There were other matters and pleadings dealing with the administration of the testator’s estate, which were handled by the regular probate judge, Lee Munson. None of these, however, concerned or resolved the issue of the capacity of the testator to make the August 21, 1990 will. A trial was then set to determine which will, if either, should be admitted to probate.

On November 26, 1990, Judge Munson was absent from Pulaski County. A special judge, John Choate, was then duly elected, sworn into office by the deputy clerk, and assumed the bench for that day. At the beginning of the hearing, Franklin objected to the special judge’s sitting on the basis that Judge Munson had heard two preliminary matters and was more familiar with the case. The special judge overruled the objection on the basis that the matters heard by Judge Munson were “more of a procedural nature” than dealing with the testator’s capacity to make a will.

The competency issue was tried on November 26, 1990, but the trial was not concluded and was continued by Special Judge Choate to February 11, 1991. That day, Judge Munson notified the clerk once again that he was unable to attend and preside over court, whereupon Special Judge Choate was duly elected to preside for a second time. He did so and concluded the trial that same day.

During the two-day trial, hospital physicians and personnel testified, as did the four lay witnesses who were present in the testator’s room at the time of explanation and signing. Nurse and physician notes for August 21, 1990, however, were incomplete for an unknown reason. Franklin called an expert witness, Dr. Robert Searcy, a pulmonary specialist, to opine on mental capacity. Dr. Searcy concluded that, based on the medical records, the testator was incompetent to comprehend fully what he was doing in making his will. He admitted, however, that the medical records for August 21, 1990, were sparse and that the testator could have experienced a lucid interval, though this was unlikely.

The special judge rendered his decision by letter opinion dated February 12, 1991. He began by stating that he overruled Franklin’s objection to his sitting as special judge because it was made after the parties and the special judge had engaged in a pretrial conference and discussed the issues to be presented. He further noted that the objection was made only after Franklin’s counsel learned that a medical witness was not available for trial that day. The special judge then found that the testimony of the four lay witnesses in support of the will outweighed and was more persuasive than that of Dr. Searcy. He also found that the medical records with the notes by attending physicians and nurses about the testator’s mental ability were contradictory. He concluded that the testator was competent when he made his will on August. 21, 1990. Following the decision, Judge Munson entered an order on February 21, 1991, which incorporated the special judge’s findings on competency and which admitted the second will to probate and appointed Marguerite as executrix.

I. AUTHORITY OF THE SPECIAL JUDGE TO ACT

Franklin first contends that Special Judge John Choate, though duly elected, committed reversible error in overruling his motion objecting to the special judge’s authority to sit. At trial, the objection was couched in terms indicating that the regular probate judge, Lee Munson, had heard preliminary matters prior to the trial and, therefore, was familiar with the parties and their demeanor.

On appeal, Franklin raises a second objection to the special judge’s authority which he did not make on the second day of the trial on February 11, 1991. The objection is that the regular probate judge returned to the bench between November 26, 1990, and February 11, 1991, and the authority of the special judge to act was, therefore, truncated under Article 7, section 21 of the Arkansas Constitution. Thus, Franklin maintains that after Judge Munson reassumed the bench, he should have conducted the trial on February 11, 1991, and rendered the decision.

The Arkansas Constitution provides for a procedure to elect special judges when the regular judge fails to attend:

Whenever the office of judge of the circuit court of any county is vacant at the commencement of a term of such court, or the judge of said court shall fail to attend, the regular practicing attorneys in attendance on said court may meet at 10 o’clock a.m. on the second day of the term, and elect a judge to preside at such court, or until the regular judge shall appear; . . .

Ark. Const. art 7, § 21. Section 21 then goes on to describe the election procedure for a judge who disqualifies which is not the situation in the case before us.

Though the constitution speaks in terms of the circuit court, it is equally applicable to the election of special chancellors and special probate judges. See Ark. Code Ann. § 16-13-310 (1987) (special chancellors elected in the same manner as special circuit judges); Ark. Code Ann. § 28-1-105(a) (1987) (judges of equity matters are probate judges); see also Fortuna v. Achor, 254 Ark. 1035, 497 S.W.2d 251 (1973).

Here, Judge Munson failed to appear on November 26, 1990, and Special Judge Choate was duly elected. There is no dispute about the legitimacy of his election. He refused to step down when his authority was disputed by Franklin on the basis that Judge Munson had heard preliminary matters, and he had engaged in a pre-trial conference with the attorneys on November 26, 1990, before Franklin objected.

The record before us presents no basis for Franklin’s assertion that Judge Munson was peculiarly qualified to hear the competency issue and that no special judge could assume that role. The previous hearings before Judge Munson were not recorded, and, by and large, the pleadings relevant to those prior matters were not abstracted. It was Franklin’s duty to make a sufficient record evincing error. Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992). This he failed to do. Special Judge Choate did not abuse his discretion in declining to step down at this juncture.

Nor do we agree that the Arkansas Constitution required Judge Munson to hear the case on the second day of the trial on February 11, 1991, because he had reappeared and sat as probate judge subsequent to the first day of trial. No objection was made to the special judge’s sitting on February 11,1991, but we held early on that consent, either expressly or tacitly given, cannot impart judicial power to a special judge. Red Bud Realty Co. v. Smith, 145 Ark. 604, 223 S.W.2d 35 (1920); Hyllis v. State, 45 Ark. 478 (1885). However, we have also held that the elections of special judges, including the reasons for the regular judge’s absence, are presumed to be valid. Titan Oil & Gas v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974).

What decides the matter is the fact that Special. Judge Choate was duly elected a second time on February 11, 1991, to hear the matter because of Judge Munson’s absence from the court. The record shows that Judge Munson’s absence and Judge Choate’s availability and election were prearranged, but this procedure does not run afoul of the constitution. Moreover, it would be nonsensical and at odds with judicial economy for the regular judge to rehear the first-day witnesses when the special judge was poised and ready to conclude the matter. In a case where the issue was whether a special circuit judge should rehear all of the testimony that preceded his assumption of the bench after the regular judge became ill, we said:

It would be an unnecessary delay, expense and vexation to clients in such cases to impanel a new jury and recall witnesses. It is not demanded by the ordinary requirements of justice. The cause properly proceeded.

Bullock v. Neal, 42 Ark. 278, 281 (1883); see also 46 Am. Jur.2d, Judges, § 2156, p. 273.

Because of judicial economy and because the judge was duly elected to hear the second day of the trial, we hold that his authority to hear and conclude this matter on February 11, 1991, remained intact.

There is, finally, the fact that the special judge issued a letter opinion, and Judge Munson subsequently entered the order admitting the August 21, 1990 will to probate and appointing Marguerite as personal representative. Franklin advances the argument that this converted the special judge into a master and the special judge had no authority to act as one under Ark. R. Civ. P. 53. We do not agree.

First, Franklin failed to raise this issue below, and accordingly, has waived the argument for purposes of appeal. See McElroy v. Grisham, 306 Ark. 14, 810 S.W.2d 933 (1991). The special judge specifically informed the parties at close of trial that he would prepare a letter opinion with his findings and from that the prevailing party could prepare an order for Judge Munson’s signature. Franklin did not object to this procedure.

But, in addition, there was no fallacy in the procedure followed by the special judge. He made his findings on the day after the trial on February 12, 1990, when he was still sitting as special judge. Judge Munson then incorporated those findings into his order. We note in this regard that had the special judge signed an order after Judge Munson returned to the bench, the order would have been subject to challenge. See Cates v. Wunderlich, 210 Ark. 724, 197 S.W.2d 477 (1946). In Cates, we voided the decree of the special chancellor which was entered after he ceased to be chancellor and the regular chancellor had resumed his duties.

In sum, the special judge was correct in hearing this matter to conclusion, and we hold that there was no error in the entry of the order by the regular probate judge incorporating the special judge’s findings and admitting the will to probate.

II. CAPACITY TO MAKE A WILL

For his second point, Franklin argues that the special judge erred in finding the testator competent to make a will and, more specifically, in finding that the testimony of the lay witnesses outweighed that of his expert, Dr. Robert Searcy, and other medical witnesses.

Probate cases are tried de novo on appeal, and this court does not reverse unless the findings of the probate judge are clearly erroneous. Baerlocker v. Highsmith, 292 Ark. 373, 730 S.W.2d 237 (1987); Hiler v. Cude, 248 Ark. 1065, 455 S.W.2d 891 (1970). This court will, however, give due deference to the superior position of the probate judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Id; Reddoch v. Blair, 285 Ark. 446, 688 S.W.2d 286 (1985). The party contesting the validity of the will has the burden of proving by a preponderance of the evidence that the testator lacked mental capacity at the time the will was executed. Baerlocker v. Highsmith, supra; Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Abel v. Dickinson, 250 Ark. 638, 467 S.W.2d 154 (1971).

We have further established the test for determining mental capacity in two lines of cases:

The rule has been generally expressed that sound mind and disposing memory, constituting testamentary capacity, is (a) the ability on the part of the testator to retain in memory without prompting the extent and condition of property to be disposed of; (b) to comprehend to whom he is giving it; and (c) to realize the deserts and relations to him of those whom he excludes from his will. Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405; Boone v. Boone, 114 Ark. 69, 169 S.W. 79; Mason v. Bowen, 122 Ark. 407, 183 S.W. 973, Ann. Cas. 1917D, 713; Griffin v. Union Trust Company, 166 Ark. 347, 266 S.W. 289; Puryear v. Puryear, 192 Ark. 692, 94 S.W.2d 695; Petree v. Petree, 211 Ark. 654, 201 S.W.2d 1009.
Testamentary capacity means that the testator must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his bounty. Tatum v. Chandler, 229 Ark. 864, 319 S.W.2d 413; Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665; O’Dell v. Newton, 228 Ark. 1069, 312 S.W.2d 339.

Hiler v. Cude, 248 Ark. at 248, 455 S.W.2d at 898; see also Rose v. Dunn, supra, Baerlockerv. Highsmith, supra. Complete sanity in a medical sense is not essential to testamentary capacity if the power to think rationally existed when the will was made. Abel v. Dickinson, supra; Hiler v. Cude, supra; Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983). The time to look at a testator’s intent to make a will is when the document was executed. Hiler v. Cude, supra; Rogers v. Crisp, 241 Ark. 68, 406 S.W.2d 329 (1966); Yarbrough v. Moses, 233 Ark. 489, 267 S.W.2d 289 (1954). The testator’s condition either before or after the time of making the will is not the test as to his mental capacity but is only relevant as indicating the testator’s condition at the time of signing the instrument. Rogers v. Crisp, supra.

We have also recognized that, despite any mental impairment, a testator may sign a will during a period when he or she is experiencing a lucid interval. Hiler v. Cude, supra; Thiel v. Mobley, 223 Ark. 167, 265 S.W.2d 507 (1954); Green v. Holland, supra.

We cannot say that the record in this case fails to support the special judge’s conclusion of competency. Attorney Dudeck, his notary, and the two disinterested witnesses, the Gregorys, were convinced that the testator was competent and aware of what he was doing in leaving everything to Marguerite and in writing Franklin out of his will. Moreover, the medical records, though incomplete on August 21, 1990, are indeed contradictory, as the special judge found. Some medical notations evidence a man who was alert and feeling better and whose temperature was almost normal on the day of the will’s execution; others suggest higher temperature and, two hours after the will signing, physical deterioration.

It is true that the medical records for the previous three days refer to the testator’s confusion and disorientation and his need to be restrained. It is further true that the charge nurse, Margaret Townsend, questioned the testator’s competency during this period, but she was not on duty on August 21. Dr. Lisa Bishop testified that the testator had trouble following commands and was confused, though she also was not tending the testator the night he executed the will and admitted that she did not know if he was competent at that time. The testimony of Dr. Geisle Urrutibeheity and Dr. Robert Searcy may also cast doubt on the testator’s competency, but their testimony is not conclusive on this point. Dr. Urrutibeheity observed the testator two hours after he signed the new will and would offer no opinion at trial as to his competency when he made the will. Dr. Searcy never actually saw the testator and, though he posited a theory of incompetency based on the incomplete medical records, he admitted the possibility of a lucid interval and that eyewitness accounts would have validity.

Franklin also emphasizes the inconsistencies in the testimony of the four lay witnesses who support the will. Inconsistencies may exist as to precise length of time of the four witnesses in the testator’s room, the medical equipment used by the testator, and the medical personnel who entered. Those inconsistencies, however, are not of such moment as to reverse the decision of the special judge. Nor does the fact that the Gregorys erred on some of the particulars in the will militate against competency. Whether the witnesses can recite verbatim the terms of the will is not the crucial issue. The issue is whether the testator had the mental capacity to make a will.

Deathbed wills must be carefully scrutinized by the court of this state because of the doubts and suspicions that they necessarily raise. We have no doubt that such scrutiny was given in the instant case and that the special judge carefully weighed the evidence before him and after doing so reached his decision in favor of competency. In these cases, credibility of the witnesses is extremely important, and we emphasize the obvious point that the special judge was privy to the witnesses and had the benefit of assessing their demeanor. See Edwards v. Vaught, 284 Ark. 262, 681 S.W.2d 322 (1984). All four witnesses who were in the testator’s room at the time of explanation and execution were certain about the testator’s understanding of his property, his heirs, and the identity of those to whom he wished to leave his property. Frank Dudeck and the Gregorys were particularly adamant and descriptive about the testator’s intentions. Two of those witnesses — the Gregorys — were disinterested and had no formal connection with the lawyers or the parties in this case. And the signing took place without the major distributee under the new will — Marguerite — being present in the room. There was, too, the testimony of Timothy Daley that the testator, prior to his final illness, had made statements suggesting that he wanted Marguerite to have a roof over her head and be taken care of. We further are persuaded by the fact that the testator amended his will in the hospital room and wrote Franklin completely out of it at that time. This was a radical departure from the changes that Marguerite had initially conveyed to the lawyer at the direction of her father.

Though suspicions may abound under circumstances of this sort, we cannot say that the special judge clearly erred in his decision.

The appellee, Marguerite Boroughs, also moves to strike the appellant’s preliminary statement or, alternatively, the statement of the case as argumentative and too long and for costs occasioned by her preparation of a supplemental abstract. The. appellant did have a preliminary statement that was three and one-half pages in length and a statement of the case that was one and one-half pages. Our Rules provide for a statement of the case without argument “ordinarily not exceeding two pages in length.” Ark. Sup. Ct. R. 9(b). Here, the total was five pages, and the statements were perhaps less than balanced in their description of the facts. Our clearly stated preference is as set out above in our rule, and, in appropriate cases, we will strike overly long and argumentative statements. We do not believe the circumstances in this case warrant that either statement be struck. Also, though we observe minor discrepancies in the appellant’s abstract, we do not see them as so egregious as to warrant the payment of costs to the appellee. In this regard, much of the appellee’s supplemental abstract is duplicative of the appellant’s abstract.

The decision is affirmed. The appellee’s motion to strike and for costs is denied.

Newbern, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    David Shayne HENDERSON v. STATE of Arkansas
    CR 92-167
    835 S.W.2d 865
    Supreme Court of Arkansas
    Opinion delivered July 13, 1992

      C. Scott Clark, for appellant.

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

This appeal comes from a conviction for rape and a life sentence as a habitual offender meted out by the circuit court after the jury deadlocked during the penalty phase. The appellant, David Shayne Henderson, appeals on the basis that 1) the circuit court denied him a continuance when two key witnesses — his father and brother-in-law — were not available for trial, and 2) the court improperly sentenced him when the jury deadlocked. Neither argument merits a reversal, and we affirm the conviction and sentence.

The facts as related at trial by Henderson and the victim at trial are irreconcilable. The victim, a resident of North Little Rock, testified that she went to the Nightlife Club in Little Rock on Asher Avenue at 1:00 or 1:30 a.m. on October 28, 1990. She visited with friends and the doorman and had at least two alcoholic drinks over the next few hours. The victim saw Henderson at the club whom she had known in the past as a neighbor in a trailer park in Little Rock where she lived previously with a boyfriend. She talked with Henderson at the club, and when it came time for her to leave several hours later, he followed her outside and asked for a ride home to his residence near Geyer Springs. She obliged, but after they began the drive, he changed his mind and directed her to take him to a friend’s house off of Colonel Glenn Road. En route, he asked her to stop so that he could go to the bathroom. After doing so, he got back in the car and tried to kiss and fondle her. The victim resisted, and he pulled her by the back of the hair and threatened her with a knife at her throat. He then demanded that she undress and perform oral sex on him. She begged him to stop, and he hit her in the face several times with the back of his hand.

The victim complied with Henderson’s demands, and while she was doing so, Henderson penetrated her vagina and anus with his fingers. He then pulled out a knife and forced the handle into her vagina, and when she refused to do it herself, he beat her in the face again and forced the knife handle into her anus. Henderson assumed the driver’s seat, told the victim to get dressed, and drove the car to Hot Springs, where, according to the victim, they visited with one of his family members, either his mother or sister. She did not tell that person what had happened to her. They drove into a wooded area next, and Henderson forced her to have sex and penetrated her both vaginally and anally with his penis. She was bleeding at that point from her anus, and the appellant stopped the assault after blood got on his shirt.

Henderson next traveled to a McDonald’s restaurant in Hot Springs to get food. At the drive-through, the victim tried to escape, but Henderson grabbed her and left the restaurant at a high rate of speed with the victim screaming. They drove into a surrounding wooded area and there Henderson forced her to have sex again. After this final episode, Henderson took the victim to his father’s trailer, which was in the vicinity. He first talked to his father and then told the victim to come inside. After entering the trailer, she went to the bathroom and put on makeup to cover her facial bruises. She did not tell Henderson’s father that she was in trouble or that she had been raped by his son.

The victim then went outside and met the appellant’s brother-in-law, Billy Joe Harvey, and his sister, Sherri Dawn Harvey, who lived in a trailer behind Henderson’s father. The victim and Sherri went to Sherri’s trailer, and the victim washed herself while Sherri washed her jeans. At that time, the victim says she told Sherri about the rapes, though Sherri denied this at trial. Sherri gave her a knife to protect herself and said that she would call to make sure she got home safely. Henderson, meanwhile, washed the front seat of the victim’s car which was stained with blood.

Henderson next took the car to Prescott and visited with his great uncle, Fred Ridling, Jr., for about ten minutes. Ridling testified at trial that he did not see anything unusual, and he assumed the passenger in the car was female. No complaints were made to him by the passenger.

Henderson and the victim then drove back to Little Rock and arrived about 2:30 in the afternoon. The victim promised not to tell what had happened and went to her room at home and rested. When her mother came home, she told her what had happened, and they went to the hospital, where the bruises on her face and lips and chin were treated. The treating physician also found bruises around the vagina and non-motile sperm in the vagina and dried blood in the anus.

Henderson admitted only to consensual sex with the victim and to the traveling. He testified at trial that he had had sex with the victim five times previous to the night in question and that she consented to all sexual activity on that particular night. He said that they did fight after the sex and that is how she became bruised. He also said that they had taken drugs that night, including crystal methamphetamine, and that the victim on occasion had acted “crazy.” He admitted to four prior felonies. His sister, Sherri, confirmed his rendition of the facts at trial.

Before trial commenced on October 1, 1991, Henderson’s attorney advised the circuit court that Henderson’s father and brother-in-law had been arrested in Kansas for marijuana possession and were not available for trial. He asked for a continuance, which the court denied on the basis that he had no assurances that the two men would be available for a later trial setting. It was brought out that the trial had already been continued once at Henderson’s request due to an ill witness. During the trial, the circuit court told the appellant’s attorney that it was permissible for him to advise the jury that Henderson’s father was not available for trial. The attorney did not do so. The circuit court concluded, after hearing the victim’s testimony, that there was nothing to indicate that the absent witnesses would contradict the victim since she admitted that she did not tell them that she had been raped and that she had tried to cover her bruises with makeup.

The jury found Henderson guilty of rape but did not assess a penalty. The jurors reconvened twice before the court, and the court advised them to do their best to reach a verdict. Ultimately, they were unable to decide on a penalty, and the court dismissed them after being informed that the jury had been debating a sentence of between forty and sixty years.

On October 3, 1991, the circuit court held a sentencing hearing. Both the state’s attorney and the defense attorney agreed that the court could sentence, although the defense attorney asked the court to adhere to the jury’s range and assess punishment between forty and sixty years. The circuit court then sentenced Henderson to life imprisonment.

I. CONTINUANCE

For his first point, Henderson challenges the court’s ruling denying him a continuance because of the absence of his father and brother-in-law, who, he claimed, would be pivotal defense witnesses. Henderson did not provide an affidavit of materiality, but he did make the following proffer to the court at the conclusion of all testimony when he renewed his motion:

Billy Joe Harvey is Sherri Harvey [’s], who did testify, husband. Mr. Harvey could testify and would testify I think even from Ms. Harvey’s testimony she hid or was deceptive about giving [the victim] this knife. Mr. Harvey would not have been, would not have known that. He would have testified about how [s]he appeared to him. How the conversation went on at the house how she appeared physically, both physically and emotionally at that house and what was going on at that house. Mr. Henderson would testify about the encounters that he had at his house. I know from talking with him that his testimony would be along the lines that he was in the room with [the victim] for a period of time where they were alone. They conversed. There was absolutely no mention of any rape. I agree [the victim] has not said that there was any conversations to that effect but I think having those people here would be much more beneficial than having those words being said by the alleged victim in this matter.

The circuit court then asked whether the two absent witnesses would have contradicted the state’s witnesses and defense counsel answered: “I cannot off the top of my head recall that they would have contradicted the testimony of — specifically contradicted any point that [the victim] made.”

State law provides that an affidavit is required for a continuance based on the absence of witnesses. Ark. Code Ann. § 16-63-402(a) (1987). We have interpreted the affidavit requirement under the statute as necessary to justify any continuance caused by a missing witness. Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992). The denial of a continuance when the motion is not in substantial compliance with the statute is not an abuse of the trial court’s discretion. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990). The burden is on the appellant to establish prejudice and an abuse of discretion in denying the continuance. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991); Ray v. State, 304 Ark. 489, 803 S.W.2d 894 (1991); Butler v. State, supra. The factors for the trial court to consider in exercising its discretion over continuance motions are:

(1) the diligence of the movant, (2) the probable effect' of the testimony at trial, (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true.

303 Ark. at 384-385, 797 S.W.2d at 438; see also Ray v. State, supra.

Henderson did not file an affidavit to support his motion and could offer no assurances that the two missing witnesses would attend a trial setting on a certain date in the future. Moreover, he could show no prejudice by their absence since their testimony would not have contradicted the victim’s story but, instead, would have been largely cumulative to hers. It is also doubtful that the father and brother-in-law would have added anything of substance to the testimony of defense witnesses Sherri Harvey and Fred Ridling, Jr. who did appear at trial. The circuit court’s ruling which denied the continuance was appropriate in this case.

II. SENTENCING

Henderson asserts that the circuit court improperly sentenced him when it exceeded the jury’s range of forty to sixty years and gave him life imprisonment. We do not agree.

Statutory law is controlling on this point:

(b) . . . the court shall fix punishment as authorized by this chapter in any case where:
(3) The jury fails to agree on punishment ....

Ark. Code Ann. § 5-4-103(b)(3) (1987).

In this case, the jury was clearly deadlocked on punishment. The jurors had first been out for over two hours in deliberations, and they sent the circuit court a note asking what would happen if they could not agree on the punishment. The court called them in and told them that it would stay as long as necessary and that it understood they were “willing to talk about it a little more.” Some forty minutes later the court received another note from the jurors stating that they were unable to agree on a sentence. At that point, the court dismissed them.

At sentencing thirty days later, the lawyers for the state and defense agreed that the circuit court could make the sentencing decision, although defense counsel asked that the court sentence within what the jury was considering which was the forty-to-sixty-year range. The court refused and sentenced Henderson to life.

We hold that there was no error in the circuit court’s decision. Henderson was convicted of rape, a class Y felony, and with a record of four prior felonies, the range of his punishment was forty years to life imprisonment. Ark. Code Ann. §§ 5-4-501(b)(1), 5-14-103 (1987).

We considered a similar fact situation in Scherrer v. State, 274 Ark. 227, 742 S.W.2d 877 (1988). In Scherrer, prior to the sentence phase, the circuit court instructed the jury that the sentence could be in the ten-year to forty-year range or life. The jury came back and asked if it should pick a number between ten and forty years. The court answered that it could pick a number within that range or give life imprisonment. The jury was then unable to agree, and the court assessed life imprisonment. Scherrer argued that this was improper because it exceeded ten to forty years which the jury had been considering, but we upheld the sentence.

Similarly, we uphold the circuit court’s sentence in this case. Henderson’s counsel agreed to the assessment of punishment by the circuit court, and the punishment then given was within the statutory range. We find nothing in § 5-4-103 that limits the circuit court’s discretion to what the jury was considering before the court assumed control of the matter. The sentence given, therefore, was not an abuse of the circuit court’s discretion.

The objections in this case have been abstracted, and the record has been examined in accordance with Ark. Sup. Ct. R. 11(f). It has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Aifirmed.


author: Per Curiam.

text:
    Charles WILSON v. STATE of Arkansas
    CR 92-751
    832 S.W.2d 854
    Supreme Court of Arkansas
    Opinion delivered July 13, 1992

      Joseph C. Self, for appellant.
    No response.
   Per Curiam.

Appellant, Charles Wilson, by his attorney, Joseph C. Self has filed a motion for rule on the clerk. His attorney admits that the record was tendered late.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

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


author: Jack Holt, Jr., Chief Justice.

text:
    Willie ATKINS, Jr. v. STATE of Arkansas
    CR 92-212
    836 S.W.2d 367
    Supreme Court of Arkansas
    Opinion delivered July 20, 1992

      Ralph C. Goza, for appellant.

      Winston Bryant, Att’y Gen., by: Didi Sallings, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Willie Atkins, Jr., was convicted of the first degree battery and rape of his girlfriend’s two-year old daughter. He was sentenced to 20 years imprisonment and life imprisonment, respectively. Atkins’ sole point of error on appeal is that there was insufficient evidence to support the jury’s verdict. We find no merit to his appeal and affirm.

Atkins, a 34-year old man who was separated from his wife, met Marie Powell in 1989 and subsequently moved in with Ms. Powell and her three young children in January 1990.

At approximately 7:45 a.m. on October 31, 1990, Atkins and Marie Powell arrived with Ms. Powell’s youngest child, “C”, aged two years and eleven months, at the emergency room of the Ouachita County Hospital. The child was not breathing and had no pulse. The emergency room staff was eventually able to resuscitate her after some 45 minutes. An examination revealed extensive bruising to C’s head and face, dislocation of her left hip, and bleeding from her vagina. The E.R. nurse noted the blood was bright red, indicating fresh blood. X-rays revealed a tenth rib fracture that was four to six weeks old.

Later that morning, the child was flown by helicopter to Arkansas Children’s Hospital. C arrived in a comatose condition, totally unresponsive to external stimuli. Extensive bruising was again noted on her forehead and around her ears. A genital exam revealed external bruising and two lacerations to the hymen. Old scarring was also noted on her chest, back, and legs.

The bruises on C’s head and vaginal area were red in color, indicating they had been inflicted within 24 to 36 hours of her arrival at the county hospital. Blood was present at the areas of lacerations to the hymen. The vaginal opening was noted to be almost twice the size of that of a normal child of C’s age. X-rays revealed five rib fractures — two of which were estimated to be two weeks to two months old and three of which were almost healed and estimated to be over two months, but less than a year, old. According to the radiologist, these fractures were caused by squeezing or shaking, commonly known as “rag doll” injuries. There was also an ankle fracture, again under a year old. Blood tests indicated extremely elevated levels of liver enzymes in the blood stream. The emergency room physician opined at trial that the condition was probably caused by a strong blow or repeated blows to the abdomen. He also testified that the child’s breathing most likely stopped due to a significant blow to the head, by strangulation, or by smothering. At the time of trial, C was still in a vegetative state and it was predicted she would most likely remain so.

Physicians from both hospitals confirmed that C had been both physically and sexually abused within 24 to 36 hours of her arrival at the Ouachita County Hospital. The medical evidence of abuse in this case is not in dispute, only the identity of the perpetrator.

Melissa Barkheimer, an emergency room nurse at the county hospital, testified that Atkins told her he was standing in the bathroom that morning to urinate when C came and stood behind him and made a funny noise. He told her to stop acting silly, noticed gurgling in her throat, and ran to get help.

Officer Michael Benson talked to Atkins at the hospital and later took a statement from him on November 5, after Atkins was arrested. In his statement, Atkins said that early on the morning of October 31, Marie dressed the two older children for school and, as she was leaving the house, told C to go to the bathroom. Atkins stated he heard C make a sound from the bathroom, to which he responded “Daddy doesn’t feel like playing this morning.” She then began gagging. He stated he ran down the stairs with her, falling in the process. Atkins said the child did not hit her head in the fall. He was able to find a ride to the hospital with a neighbor and met Marie returning from the bus stop, who joined them. Atkins denied ever abusing or mistreating C except to spank her on the legs with a switch for discipline. Atkins stated that on October 30, he, Marie, and all three children were at his parents’ house where Atkins was working on a car. He stated they returned home at nine or ten p.m.

Officer Benson testified that Atkins’ story about falling down the stairs with the child was not mentioned when Atkins first spoke with him at the hospital, some six days earlier.

Following the medical and police testimony, several State witnesses testified about the family dynamics and events leading up to the morning of October 31.

Johnnie Mae Cooper, a friend of Marie Powell’s, lived with Marie off and on for two and a half years. She moved to a nearby apartment in the same complex a few weeks after Atkins moved in with Marie. Ms. Cooper testified C appeared happy and playful until Atkins moved in with Marie. Thereafter, the child became withdrawn. Ms. Cooper first observed bruises on C in the summer of 1990 while babysitting. On different occasions, she observed the child with black eyes, a knot on her forehead, a busted lip, bruising around the ribs, and a bite mark. Ms. Cooper testified her relationship with Marie became estranged when she began asking Marie about the injuries to C. She denied the estrangement had anything to do with Atkins.

Jonathan Fogle, a ten-year old neighbor, testified he once witnessed Atkins knock C out of her chair and start whipping her when she complained about eating her oatmeal. Zylpha Fogle, Jonathan’s mother, said she began noticing bruises and bites on C in the summer of 1990. She stated she babysat the child about once a week but Marie and Atkins prevented her from keeping C when she inquired about the injuries. Ms. Fogle testified Jonathan ran to her and told her about Atkins knocking C out of her chair and she had no reason to disbelieve him.

Marie Powell testified Atkins began living with her in January 1990. Her version of events on October 30 differed from Atkins’. Ms. Powell stated her sister kept the children all that day and brought them back to her house between 5:30 and 6:00 p.m. She stated Atkins was gone all day and she did not know where. He came home that evening at approximately 9:00 p.m., after the children were already in bed. Ms. Powell observed no bruises on C, or vaginal bleeding, either that day or evening.

Ms. Powell testified that on the morning of October 31, she arose at 7:00 a.m. and prepared the older children for school. She stated she glanced at C in her bed and observed nothing unusual. Atkins was still in bed. As she left to take the children to the bus stop, she told C to go to the bathroom and instructed Atkins to watch her. She observed C slowly getting out of her bed. The next time she saw C, Atkins had her in the car and was “hollering” that something was wrong. She stated Atkins told her C fell down and that he grabbed her and ran downstairs, falling as he went. Ms. Powell stated she had been gone from the house five or ten minutes that morning and that Atkins was alone with the child.

Ms. Powell testified to a number of visits to the doctor concerning the swelling to C’s face, her black eyes, and the knot to her forehead. She stated the doctor told her the symptoms were allergy-related, for which she was given medicine and told to keep C out of the sun. Ms. Powell did state Atkins and C had a good relationship and denied that she or Atkins ever abused her; however, she conceded there was no one else besides Atkins who could have inflicted the injuries within the twenty-four hour period before C’s admission to the hospital.

The evidence also showed that Ms. Powell took C to Dr. A.N. Olaimey for checkups and various complaints until September 1988. No abuse was documented during that time. Ms. Powell did not return to Dr. Olaimey until two years later, in September 1990, at which time she complained of a knot on C’s forehead. Dr. Olaimey told Ms. Powell to monitor it and return if problems increased. X-rays and a neurological examination were normal. Ms. Powell returned on October 15, stating C’s face was getting dark and swelling and that she was vomiting and was fatigued. Dr. Olaimey testified he was unaware Ms. Powell had taken C to a different doctor in May 1990, and again in August 1990, with the same complaints of blackness around the eyes and vomiting.

In his defense, Atkins offered the testimony of two employees with the Arkansas Department of Children and Family Services. Gary Chance testified that in May 1990, he received an anonymous phone call that C had been physically abused by her mother’s boyfriend. After an interview with Ms. Powell and Atkins, and after reviewing the hospital report, Mr. Chance accepted the explanation that the bruising underneath the child’s eyes and facial swelling were sinus-related.

Betty Grissom received a report that Ms. Powell was neglecting her children in September 1990. After a visit to the home, during which she visited with Ms. Powell and C, she observed no signs of neglect. Ms. Grissom stated she did not look for signs of abuse as she was there on a neglect call.

Atkins also testified in his own defense. He stated he was not convinced C had been abused and denied he was responsible. Atkins stated on October 30, he was at his parents’ house all day working on his brother’s car. He stated Marie and the children came to the house and they all went home together, arriving at 10:00 p.m., and went straight to bed. He did not notice any bruises on C and did not know what Marie had been doing that day. His story of the events on the morning of October 31 matched that in his statement to Officer Benson on November 5. Atkins stated it was unusual for Marie to ask him to watch C as she had always used the bathroom by herself. He stated Marie had been gone no longer than five minutes from the time he heard C fall to the floor and the time he ran out of the house with her. Atkins testified he did not notice any bruises that morning because he was more concerned with her seizures. He testified he and Marie must have passed C back and forth between them in the car 20 times on the way to the hospital.

Atkins’ motions for directed verdict, properly made at the close of the State’s case and at the close of all the evidence, are challenges to the sufficiency of the evidence. In reviewing the denial of a motion for directed verdict, the evidence is viewed in the light most favorable to the appellee, considering only the evidence that tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992). Substantial evidence is evidence which is of sufficient force and character to compel a conclusion one way or another with reasonable certainty and which induces the mind to go beyond mere suspicion or conjecture. Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992). Circumstantial evidence may be sufficient to sustain a conviction provided, where circumstantial evidence alone is relied upon, it indicates the accused’s guilt and excludes every other reasonable hypothesis. Black v. State, 306 Ark. 394, 814 S.W.2d 905 (1991).

Atkins concedes the injuries to C are sufficient to support a conviction for rape and first degree battery but argues that he was not the perpetrator and that another possible explanation is that Marie Powell inflicted the injuries and then, realizing what she had done, hurriedly left the apartment that morning.

In support of this theory, Atkins first argues the testimony of Johnnie Mae Cooper was suspect since Atkins was responsible for breaking up a close relationship between the witness and Ms. Powell. Ms. Cooper clearly denied such a motivation for testifying against Atkins. Atkins also attacks the credibility of Jonathan Fogle, arguing his story was “rehearsed” and the testimony was simply not believable. On the contrary, Jonathan’s testimony was clear and plausible. Furthermore, he stood by his testimony, even after repeated efforts by defense counsel to shake him on cross-examination. The credibility of witnesses lies within the province of the jury. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). It is significant that both Ms. Fogle and Ms. Cooper began noticing injuries to C, and changes in her behavior, when Atkins moved into the home, where none had been noted before. Neither of these women indicated having any major arguments with Marie Powell or with Atkins, although both indicated their friendship and babysitting ceased when they raised questions concerning C’s injuries.

Atkins also contends that it is “significant” that all of C’s fractures, except for the two most recent ones, were probably sustained prior to January 1990, when he moved in with the Powells. This argument is simply not supported by the evidence. Dr. Leithiser, at Arkansas Children’s Hospital, testified the three older rib fractures and the ankle fracture were somewhat less than a year old since, although they did not appear on the x-rays, they appeared on the bone scan. Atkins had been living in the home ten months. The medical evidence, combined with the testimony of the Marie Powell’s neighbors, points to a period of abuse that began near the time Atkins moved into the home.

As to what occurred the morning C was taken to the hospital, under Atkins’ theory, Marie Powell would have to have inflicted some sort of severe trauma or attempted to suffocate or strangle the child in order to have caused her heart to stop beating. Also, the presence of red blood in C’s vaginal area suggested sexual abuse occurred shortly before she was brought into the hospital. It is unlikely all this would have taken place while the other two children were still in the home. On the other hand, it is undisputed Atkins was left alone with C that morning, as Marie Powell had taken the other children to the bus stop. Atkins gave conflicting stories as to what occurred that morning, one version being that he heard C fall as he lay in bed and the other that she came behind him as he was standing in the bathroom. It is also telling that Atkins neglected to mention that he fell all the way down the hardwood stairs with the child until he gave a formal statement to the police, six days after his interview at the hospital. Again, the credibility of witnesses and the weight to be given the evidence are for the trier of fact, who may reject or accept any part of the evidence; such determinations will not be disturbed on appeal when there is substantial evidence to support the factfinder’s conclusion. Brown v. State, supra.

The jury was properly instructed that facts in dispute may be proven by circumstantial evidence, and that a fact is established by such evidence when its existence can reasonably be inferred from other facts proved in the case. From the testimony presented, the jury could reasonably have inferred that C began suffering an ongoing period of abuse when Atkins moved into the home, culminating in Atkins’ physical and sexual abuse of C shortly before her admission to the county hospital on October 31. Such circumstantial evidence sufficiently supports the jury’s verdict of first degree battery and rape.

The record has been reviewed for any prejudicial error under Ark. Sup. Ct. R. 11(f) and none found; we therefore affirm.


author: Jack Holt, Jr., Chief Justice. Robert H. Dudley, Justice, Robert L. Brown, Justice,

text:
    INTERSTATE FREEWAY SERVICES, INC., and Wayne E. Stowe v. John T. HOUSER
    91-291
    835 S.W.2d 872
    Supreme Court of Arkansas
    Opinion delivered July 20, 1992
    [Rehearing denied September 14, 1992.]

      Skokos, Coleman & Rainwater, P.A., by: Jay Bequette, for appellants.

      Hilburn, Calhoun, Harper, Pruniski & Calhoun, Ltd., by: James D. Lawson, for appellee.

      Corbin, J., not participating.

   Jack Holt, Jr., Chief Justice.

The central issue in this case is whether the appellants, Interstate Freeway Services, Inc. (IFS), and Wayne E. Stowe, fraudulently induced the appellee, John Houser, to accept employment to open and manage their new restaurant, John’s Diner, and the corresponding measure of compensatory and punitive damages.

The underlying facts show that Houser had managed a restaurant for IFS from 1971 to 1980, at which time he voluntarily terminated his employment. Houser continued to work in the restaurant business, and, sometime in September or October of 1989, he responded to a newspaper advertisement in which Stowe had advertised for a shift manager at his Union 76 Truck Stop restaurant. However, the job had already been filled, and Houser then began working as an assistant chef at the Marlsgate Plantation near Scott, Arkansas, on October 16, 1989.

The next day Stowe contacted Houser with an offer to open and manage a new restaurant, bearing his name, John’s Diner, which offer included a salary of $500.00 per week, paid vacation, hospitalization and related insurance for both Houser and his wife, and ten percent of the restaurant’s gross profits. Houser accepted Stowe’s offer, gave notice to Marlsgate Plantation, and, due to Stowe’s expressed desire to open for business as quickly as possible, began the very next day to hire employees, to clean the restaurant facility, and to order food and supplies.

On October 31, 1989, John’s Diner opened under Houser’s management; apparently, business was good and patronage increased daily. On November 3, 1989, however, Houser, as well as his entire staff, was fired by Bill Landers, an agent of IFS, because of attitude and not following company policy (allegedly permitting the restaurant employees to drink coffee and tea without paying for their beverages). On November 6, 1989, Stowe installed Landers as manager and a new staff was employed to continue operating the business. The restaurant was subsequently renamed the Diner, accomplished simply by removing Houser’s first name from the sign.

Houser filed a complaint in the Pulaski County Circuit Court on November 28, 1989; Stowe and IFS filed a motion to dismiss, and Houser filed an amended complaint. Stowe and IFS responded with a second motion to dismiss, which was granted in part and denied in part; the trial court left Houser’s claim of fraud against Stowe and IFS intact.

After a jury trial on April 9, 1991, Houser was awarded a judgment jointly and severally against Stowe and IFS in the amount of $27,872.00 for compensatory damages and $2,787.00 for punitive damages, as well as $ 104.21 for statutory costs. From this award, Stowe and IFS appeal and assert three points of error, none of which has merit, and the judgment of the trial court is affirmed as modified.

I. PROOF OF FRAUD

The appellants initially contend that the trial court erred in denying their motion for directed verdict and motion for judgment notwithstanding the jury’s verdict or for new trial and instructing the jury on fraud due to Houser’s failure to prove essential elements of his claim for fraud.

Fraud is never presumed, but must be affirmatively proved, and the burden of proving fraud is upon the party who alleges it and relies on it. Rees v. Craighead Inv. Co., Inc., 251 Ark. 336, 472 S.W.2d 92 (1971).

In Morris v. Valley Forge Ins. Co., 305 Ark. 25, 805 S.W.2d 948 (1991)(citing Brookside Village Mobile Homes v. Meyers, 301 Ark. 139, 782 S.W.2d 365 (1990)), we noted that proof of fraud requires a showing of five elements: 1) a false representation of a material fact; 2) knowledge or belief on the part of the person making the representation that the representation is false; 3) an intent to induce the other party to act or refrain from acting in reliance on the misrepresentation; 4) a justifiable reliance by the other party; and 5) resulting damages. Further, circumstantial evidence can serve as a basis for the jury to infer fraud as it can serve as a basis to infer any other fact. Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980).

Houser contended at trial that, although Stowe had offered him the position of manager of the new restaurant and to have full responsibility to do what he wanted to do without outside interference, Stowe had exercised deceit in that he had really only wanted him to clean the restaurant facility and do the initial hard work of opening the restaurant with the hidden intent of installing his own workers at the restaurant after the initial start-up work had been completed. With regard to his actual authority as manager of the restaurant, Houser testified in essence as follows:

Mr. Stowe said he was going to open a restaurant and asked if I would be interested in running it. I told him I had just gone to work. When he quoted me the salary of $500.00 a week, plus hospitalization, plus life insurance, ten percent of the profits and vacation, five days a week, off Saturday and Sunday, eight hours a day, I took the job. This was better deal than what I had at Marlsgate or had ever had in the restaurant business. Even though I had been satisfied at Marlsgate, I quit there to go to work for Mr. Stowe because he offered me $250.00 more per week for the same hours. My position was going to be manager. My authority at the diner was that I was going to manage it. I was to have full responsibility to do what I wanted to do without outside interference. I did get outside interference from Bill Landers. He was there every day like he owned the place.

Stowe also testified, in response to the question whether Houser was going to run the restaurant, that Houser was going to “[m]anage it, right.” Stowe also stated that he “. . . had Bill Landers, my general manager, down there to keep an eye on everything,” and Landers “. . . came back every night and reported to me.”

In response to Houser’s claim, Stowe asserted that he had complied with every facet of his employment offer to Houser in that he paid Houser for the two weeks that he worked, as well as two weeks severance pay, and installed him as manager of the new restaurant. Houser was not employed long enough to receive paid vacation or insurance benefits, which were part of the promised package.

The jury was properly instructed by the trial court that “[f]raud may not be presumed. It must be proven. However, you may review all of the circumstances of a transaction including the conduct of the parties, and you may infer fraud from facts which have been proven. In other words, fraud may be proven by circumstantial evidence, where the circumstances are so clear and well connected as to clearly show fraud.”

Factual questions as to whether Stowe actually intended to defraud Houser and whether Houser justifiably relied on Stowe’s representations are issues within the province of the jury to decide. It is obvious that these representations were made and that Houser relied on them; based on the trial court’s instruction, the jury found fraud, and we agree. Given Houser’s concededly good reputation in his profession, acknowledged by both Stowe and Landers, the terms of Stowe’s employment offer as manager, Landers’s apparent oversight of the restaurant start-up, the short duration of Houser’s employment, and the reasons and circumstances of Houser’s termination, we cannot say that Houser did not satisfy his burden of proving fraud on behalf of IFC and Stowe.

II. COMPENSATORY DAMAGE

Next, the appellants argue that the trial court erred in denying their motion for directed verdict, motion for new trial, and motion for order of remittitur and by instructing the jury on Houser’s claim for damages as his measure of damage was clearly contrary to the law of the State of Arkansas.

The trial court instructed the jury with modified AMI 2201 as follows:

If you decide for the plaintiff on the question of liability against any party he is suing, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following two elements of damage sustained:
First, the value of the plaintiffs loss of income; and
Second, the value of the plaintiffs benefits lost.
Whether any of these two elements of damage has been proved by the evidence is for you to determine.

The jury awarded Houser $27,872.00, apparently on the basis that Houser testified that, as of the time of trial, he would have made $39,000.00 from his salary of $500.00 per week. Using this figure as a base amount, the jury deducted $2,000.00 that he had been paid from Stowe and IFS for wages and severance pay and $11,475.00 that he had earned from another job and added $2,347.00 for the cost of insurance in determining the amount of its award.

Essentially, Stowe and IFS argue that, under the two recognized theories of recovery for fraud cases, since Houser was offered a job based on a weekly salary and he was paid for his two weeks of work plus two weeks severance pay, then his damages should be reduced to a nominal amount of $1.00.

Two measures of general damages are generally applied in actions for fraud in recognition of the underlying elements of both tort and contract in those actions. The first measure is the benefit of the bargain measure, in which the injured party is entitled to the difference between the value of the property, business, or chattel as represented and its actual value at the time of the purchase. In essence, the injured party would receive his expectation. The second measure is the out-of-pocket measure, in which the injured party is to be made whole by being restored to the position he was in prior to the injury; this measure provides for the difference between the purchase price and the actual value of the goods received. H. Brill, Arkansas Law of Damages, § 35-37 (1990).

It has been recognized that these two theories of recovery are difficult to apply where the fraudulently induced contract is one for personal services, such as employment. See generally Annotated, Employment — Fraud — Damages, 24 A.L.R.3d 1388 (1969). In fraudulent inducement of employment cases, under the benefit of the bargain measure the defrauded employee receives the benefits he would have realized under the contract had the representations been true. Under the out-of-pocket measure, the focus is on compensating the injured party for the pecuniary loss sustained as a result of the fraud. Id. Further, the difficulty in application of these theories is increased by the fact that this is an employment-at-will case, in that there is no set length of employment.

We note with approval the approach taken in the case of Berger v. Security Pacific Inf. Systems, 795 P.2d 1380 (Colo. App. 1990), where an at-will employee who established that her employer had fraudulently concealed that the project for which she had been hired to manage might be terminated was entitled to lost wages from the time of the project’s termination; although the employee’s employment was terminable at will, the jury could reasonably infer from the evidence that her employment would have continued for a reasonable time had the project been as successful as represented by the employer.

In this case, Houser had previously worked for Stowe and IFS as a manager for eight years, and Stowe had been pleased with his work. All parties agree that John’s Diner did good business for a new restaurant during the four days that it was open while Houser was employed as manager. The jury, therefore, could infer that Houser would have continued work for a reasonable time when calculating his damages; however, the jury included in its award the time period after the restaurant closed to the time of trial, and we find this time period to be too speculative for inclusion in the damages award.

Accordingly, we find that a remittitur in the amount of damages from $27,872.00 to $14,347.00, to encompass only the period during which the restaurant remained open, is reasonable in these circumstances.

III. PUNITIVE DAMAGES

Finally, the appellants claim that the trial court erred in denying their motion for directed verdict and motion for judgment notwithstanding the verdict, for new trial, and for remittitur and instructing the jury as to Houser’s claim for punitive damages since he failed to meet his burden of proving that their conduct was reckless, malicious, or intentional.

In Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972), we noted that compensation of a plaintiff is not the purpose of punitive damages but the penalty which the law fixes for conduct which is malicious, wanton, in violation of a relationship of trust or confidence, or which is done with deliberate intent to injure another. There is no fixed standard for measurement of punitive damages, and their amount lies largely within the discretion of the jury on due consideration of the attendant circumstances.

In this case, the jury’s award of $2,787.00 was not excessive in light of the appellants’ premeditated motivation behind the appellants’ actions, the degree of calculation involved, and the extent of the appellants’ disregard of Houser’s rights and expectations.

IV. MOTION FOR COSTS AND FEES FOR SUPPLEMENTARY ABSTRACT

Houser has filed a motion for costs and fees for his supplemental abstract in the amount of $1,045.00; however, the majority of the material included in his supplemental abstract has already been included in Stowe’s and IFS’s abstract and is, therefore, wholly unnecessary and repetitive.

We find that an award of $ 100.00 for costs and fees for those parts of Houser’s supplemental abstract not included in Stowe’s and IFS’s abstract is an appropriate award in this case.

Affirmed as modified.

Dudley and Brown, JJ., dissent.

Corbin, J., not participating.

Robert H. Dudley, Justice,

dissenting. The issues and the facts are exactly as stated in the majority opinion. There was substantial evidence to show that the defendants, the appellants in this court, through defendant Stowe, induced the plaintiff, appellee, to quit his job elsewhere and to accept employment with them. The defendant was to clean the interior of a building and prepare it for the opening of a restaurant, and then, after opening the restaurant, was to manage it. Defendant Stowe told the plaintiff that his salary would be $500.00 per week, that he would have paid vacations, hospitalization and other insurance, and 10% of the gross profits. The plaintiff accepted the defendants’ oral offer of employment for an indefinite term. In their briefs in this court, both parties agree that the contract of employment was one of employment-at-will, that both parties performed the oral contract through the opening of the restaurant, that both parties performed the contract through the first four days the restaurant was in operation, but after only four days of operation, defendant Stowe discharged the plaintiff and installed someone else as manager. The jury found the defendants guilty of the tort of deceit and awarded compensatory and punitive damages. The majority opinion affirms the finding, but modifies the amount of damages. The majority opinion states that it affirms the judgment because the defendants had the “hidden intent of installing their own workers at the restaurant after the initial start-up work had been completed.” I can only interpret the opinion as standing for the proposition that now, when an employer hires an employéeat-will, but intends to later replace him with someone else, the employer can be liable for the tort of deceit. This seems to me to be an evisceration, if not a partial overruling, of our employee-at-will doctrine.

In Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 38 (1982), dictum of the opinion states that the employment-at-will doctrine is deeply embedded in our case law and that the doctrine expressly recognizes the right of either party to terminate at will even where the conditions of employment are that an employee would not be discharged except for good cause. Then, in the significant case of Gladden v. Arkansas Children’s Hosp., 292 Ark. 130, 136, 728 S.W.2d 501, 505 (1987), we re-examined our position on the employment-at-will doctrine, and wrote: “The firm rule at common law is that either party can terminate at will, and while the rule has been criticized, . . . we are unwilling to replace it with a rule that subjects the employer to suit for wrongful discharge whenever an employee is terminated.” [Emphasis added.] [Citation omitted.] We affirmed that position just two weeks ago. See Mertyris v. P.A.M. Transp., Inc., 310 Ark. 132, 832 S.W.2d 823 (1992). The rationale of the doctrine is that the obligation must be mutual for a specified period of time. If the employee does not agree to work a specified length of time, the employer is not obligated to employ him for any specified length of time. If the employer does not agree to employ the employee for a specified length of time, the employee is free to leave at any time. We have created some exceptions to the doctrine, for example, if the employee is discharged “in violation of a well-established public policy of the state,” Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 249, 743 S.W.2d 380, 385 (1988), and “where an employer’s employment manual contains an express provision stating that the employee will only be dismissed for cause and that provision is relied on by the employee.” Crain Indus., Inc. v. Cass, 305 Ark. 566, 571, 810 S.W.2d 910, 913 (1991). However, none of the exceptions are applicable in this case, and it is undisputed that the plaintiff was an employee at-will. Thus by operation of law, the contract of employment provided that the defendant-employer had the right to discharge the plaintiff-employee at any time for any reason not contrary to public policy.

The majority opinion does not explain its reasoning in holding that the employer is liable for the tort of deceit. I can only assume that the gist of the holding is not that the discharge gave rise to the damages, but instead that the act of the employer in falsely representing that he would retain the employee for some unspecified term, when in fact he never intended to do so, was the act which the majority holds gives rise to the damages. The discussion in the majority opinion about the measure of damages states that the majority holds that the term of employment was implied to be for a reasonable period of time, and that will normally be defined as the period from termination of employment until trial. Thus, the majority holds that the employer falsely promised to give up his lawful right to discharge the at-will employee. The holding is based only upon the facts that the employer discussed vacations, insurance, and future business expectations and later replaced the employee. In a comparable fact situation, involving the tort of outrage, we said the statement “looking forward to a continued employment or association for many more years” was a statement “expressing a hope or expectation rather than a promise.” We additionally said, “Surely, most employers express hope that the newly hired employees will enjoy a long career with them, but those employers hardly intend for their sentiments to form a contract with the employee.” Harris v. Arkansas Book Co., 287 Ark. 353, 357, 700 S.W.2d 41, 43 (1985). It would seem that comparable facts should be construed in the same manner in this case.

A number of other courts have addressed the issue, including two of our neighboring states. In Price v. Mercury Supply Co., Inc., 682 S.W.2d 924, 934 (Tenn. Ct. App. 1984), the Tennessee Court wrote:

Upon examination of this record, we find no material fact presented by Mr. Price that would support a claim of fraud — promissory or otherwise. On the contrary, Mr. Price’s own testimony defeats this claim because he repeatedly admits that the defendants honored all commitments to him except the perceived commitment for lifetime employment. This statement, even if made, cannot provide the basis of an allegation of fraud because, at most, it created a contract terminable at the will of either party. [Emphasis added.]

In Deschler v. Brown & Williamson Tobacco Co., 797 F.2d 695 (8th Cir. 1986), the Eighth Circuit Court of Appeals, citing and applying Missouri law, wrote that a discharged employee had no cause of action for fraudulent misrepresentation based on an employer’s alleged oral promises of lifetime employment where a written contract was unambiguous and terminable at will by either party. There are a number of comparable holdings, see Annotation, Employer’s Misrepresentation As To Prospect, Or Duration, Of Employment As Actionable Fraud, 24 A.L.R.3d 1412 (1969), and while some jurisdictions have ruled that misrepresentations by an employer are actionable, none of those cases discuss the fraud claim in the context of employment-at-will.

While there is no Arkansas case squarely on point, we have a number of cases that seem to be contrary, at least in spirit, to the holding of the majority opinion. In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), we held that even though an employee was wrongfully discharged under one of the exceptions to the employment-at-will doctrine, the employee had no cause of action in tort for the wrongful discharge. Instead, we limited the employee to a breach of contract action. Id. at 249, 743 S.W.2d at 385. In Scullin v. Newman, 127 Ark. 221, 191 S.W. 922 (1917), the trial court held that an employer was guilty of fraud when it orally promised future employment to an employee in exchange for a written release from liability and then discharged the employee. We reversed, stating:

Fraud cannot be predicated upon a promise of future employment unfilled that is not recited in the instrument which constitutes the contract of release. . . .
‘This was not a false statement upon which fraud may be predicated; such fraud must be of existing facts or facts which previously existed, and cannot consist of mere promises as to future acts, although such promises are subsequently broken. . . . The representations here complained of relate solely to promises as to matters in the future.’

Id. at 232, 191 S.W. at 923-24 (quoting Conoway v. Newman, 91 Ark. 324, 121 S.W. 353 (1909)).

In Harris v. Arkansas Book Co., 287 Ark. 353, 356, 700 S.W.2d 41, 43 (1985), while discussing the tort of outrage and the dismissal of an employee, we wrote: “Because of the employer’s right to discharge an at-will employee, a claim of outrage by an at-will employee cannot be predicated upon the fact of the discharge alone.” We quoted the same language, with approval, in Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991) and in Mertyris v. P.A.M. Transp., Inc., 310 Ark. 132, 832 S.W.2d 823 (1992). Finally, in Victor Broadcasting Co., Inc. v. Mahurn, 236 Ark. 196, 365 S.W.2d 265 (1963), a minority stockholder was fraudulently induced to sell his stock to the majority stockholder for cash and the promise of future employment by the corporation. After the minority stockholder sold his stock, and the majority stockholder had control of the corporation, the former minority stockholder was discharged. The trial court apparently found that fraud was committed, did not award damages for a fraudulent discharge, but instead awarded a fair cash value for the minority stock fraudulently obtained. The majority stockholder appealed, and we affirmed.

It is significant that the majority opinion does not cite any cases in which we have upheld an award of damages for the false representation of the duration of employment of an employee at-will. The case cited in the majority opinion, Morris v. Valley Forge Ins. Co., 305 Ark. 25, 805 S.W.2d 948 (1991), deals with an attorney’s alleged wrong act against his client.

As previously set out, the rationale of the employment-at-will doctrine is mutuality of obligation. Unless a contract of employment is for a specified period of time, it may be terminated at the will of either party. It is only when both parties are bound for a specified period that there is mutuality for a specified period, and the contract will be binding for that future period. The majority opinion does not discuss the need for mutuality, but the tort of deceit also obviously requires mutuality. If one party can be guilty of the tort, so can the other. Under the precedent of the majority opinion, if an employee takes a job and inquires about vacations, insurance, and future business expectations, but has a hidden intent to take a better job when it comes along, as most employees do, he too will be subject to suit for the tort of deceit and will be liable to the employer for damages for a reasonable period of time.

Under our established law, the employer in this case had the right to discharge the employee at any time, so long as it was not for a reason against public policy. There was no evidence of a representation by the employer that he would give up his right to terminate the employment-at-will. Thus, there was no deceit. To hold, as the majority opinion does, that the facts of this case give rise to a cause of action for deceit against an employer because an employee was not retained for a reasonable time is to disembowel the employment-at-will doctrine without discussing the reasoning. I dissent.

Robert L. Brown, Justice,

dissenting. There was no evidence of pretextual deceit in this case. The circumstances adduced by the majority to support fraud are these:

1. Houser had a good reputation.
2. He was offered an employment package which included paid vacation and insurance benefits that he never received.
3. Another Interstate manager, Bill Landers, kept an eye of him.
4. His employment lasted two weeks.
5. He was fired for an attitude problem and for giving away tea and coffee to employees.

Where in these circumstances is the substantial proof of fraud? All the majority has done is set out events leading up to an employee termination and call it by a new name — pretextual deceit.

Fraud can be inferred from circumstantial evidence as the majority emphasizes. But that can only occur “where the circumstances are so clear and well connected as to clearly show fraud,” as the jury was instructed. Our cases are also legion that fraud is never presumed but must be affirmatively proved by circumstantial or actual evidence. See, e.g., Bradley v. Southern Farm Bureau Cas. Insur. Co., 392 F. Supp. 478 (E.D. Ark. 1975); Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983); Ouachita Electric Cooperative Corp. v. Evans-St. Clair, 12 Ark.App. 171, 672 S.W.2d 660(1984).That was not done in this case. By its decision the majority opens the door for frivolous litigation. Hereafter, anytime an employee is fired during the early days of employment, he or she can contend, without further proof, that the employment was a pretext and that the employer intended all along to hire only for the short term. That cannot be the law.

For a cause of action in deceit to prevail, there need be more than a theory and a conjured suspicion of conspiracy. There must be proof, either circumstantial or actual, to sustain the theory. Here, the proof was gossamer thin. We presume fraud when we adopt a theory without substantial evidence to support it. I would reverse the judgment.