text:
    Mary NORTON v. Nancy Sevier Pickard HINSON, Nancy Disheroon Kelley, Frederick A. Elmore, III, Katherine Kuhn, Christopher Kuhn, and First Commercial Trust
    99-76
    989 S.W.2d 535
    Supreme Court of Arkansas
    Opinion delivered May 13, 1999

      Howell, Trice & Hope, P.A., by: Ronald A. Hope and The Cortinez Law Firm, P.L.L.C, by; Christopher D. Anderson, for appellant.

      Hatfield & Lassiter, by: Richard F. Hatfield, for appellees.
   Annabelle Clinton Imber, Justice.

This is a probate case. The question presented is whether a will is valid if one of the attesting witnesses was less than eighteen years old when she signed it. The trial court ruled that the will was invalid. Mary Norton, the residual trustee under the will deemed invalid, appeals that ruling. We affirm.

Goldia Sevier Horne died testate at the age of ninety-nine. Soon thereafter, the probate court entered an order probating a typed will Ms. Horne executed on June 24, 1989. About a month later, Mary J. Norton, the decedent’s caregiver of several years, filed a petition claiming that the decedent had executed a typed will on August 1, 1996 that revoked the June 24, 1989 will. In contrast to the first will, the August 1, 1996 will devised $25,000 to Mary J. Norton and named her as the residual devisee. The two attesting witnesses to the August 1, 1996 will were Angela Norton, Mary Norton’s adult daughter, and Mary Anderson, Mary Norton’s fourteen-year-old granddaughter. In her petition, Mary Norton asked the probate court to set aside its order admitting the June 24, 1989 will and to admit the August 1, 1996 will in its place.

The appellees, who are some of the devisees under the June 24, 1989 will, filed a motion for summary judgment, alleging that the August 1, 1996 will was invalid under Ark. Code Ann. §§ 28-25-102 and 103 (1987) because Mary Anderson was less than eighteen years old on the day that she signed it. The trial court granted the motion, and Mary Norton appeals.

I. Standard of Review

The sole issue on appeal is whether the trial court erred when it ruled in its order of summary judgment that the August 1, 1996 will was invalid because one of the attesting witnesses was less than eighteen years old. In Hall v. Tucker, 335 Ark. 112, 983 S.W.2d 432 (1999), we recently summarized our standard of review of a summary-judgment order as follows:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.

See also Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997); Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996).

Citing Ark. R. Civ. P. 52(a) and Clark v. National Bank of Commerce, 304 Ark. 352, 802 S.W.2d 452 (1991), the appellees claim that the standard of review is clearly erroneous. However, both Ark. R. Civ. P. 52(a) and Clark, supra, deal with the review of factual findings made by the probate court. The summary judgment that is the subject of this appeal did not involve any factual findings. In fact, an order of summary judgment is only appropriate when there are no material issues offact to be resolved, and the moving party is entitled to judgment as a matter of law. See Hall, supra; Milam, supra; Renfro, supra (emphasis added). Hence, clearly erroneous is not the appropriate standard of review.

In holding that the traditional standard of review for an order of summary judgment applies in this case, we are not unmindful of other cases where we have held that certain rules of civil procedure do not apply to probate proceedings because they .are special proceedings under Ark. R. Civ. P. 81(a). See, e.g., In re: Adoption of Baby Boy Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997); Brantley v. Davis, 305 Ark. 68, 805 S.W.2d 75 (1991); Screeton v. Crumpler, 273 Ark. 167, 617 S.W.2d 847 (1981). However, Ark. R. Civ. P. 81(a) provides that the rules of civil procedure do not apply when they are “different” from the procedure established in the statutes creating the special proceedings. In each of the above cases, the statute creating the special proceeding provided for a procedure that was different from the relevant rule of civil procedure. Here, the probate code does not provide for a procedure that is different from the Ark. R. Civ. P. 56 on summary judgments. Hence, Ark. R. Civ. P. 56 and its relevant standard of review apply in this case.

II. Substantial or Strict Compliance

The Arkansas Probate Code provides that “[a]ny person, eighteen (18) years of age or older, competent to be witness generally in this state may act as attesting witness to a will,” and that the “execution of a will, other than holographic, must be by the signature of the testator and of at least two (2) witnesses.” Ark. Code Ann. §§ 28-25-102(a) and 103(a) (1987) (emphasis added). In numerous cases, we have held that the first rule of statutory construction is to give the words of the statute their ordinary and usually accepted meaning in common language. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998); Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998) . We have also said that when the language of the statute is plain and unambiguous and conveys a clear and definite meaning, there is no reason to resort to rules of statutory construction. State v. Havens, 337 Ark. 161, 987 S.W.2d 686 (1999); Office of Child Support Enforcement v. Terry, 336 Ark. 310, 985 S.W.2d 711 (1999) .

In this case, Ark. Code Ann. §§ 28-25-102 and 103 plainly and unambiguously require that a will must be signed by “at least two” attesting witnesses, who are “eighteen (18) years of age 'or older.” Strictly construing this language, the trial court granted the appellees summary judgment. Ms. Norton, however, contends that substantial compliance with these two requirements is acceptable.

Ms. Norton is correct in her assertion that we have previously allowed substantial compliance with other statutory requirements for executing a will. For example, we have allowed substantial compliance with the requirements that the testator “declare” the instrument to be his or her will, and that the decedent must “request” the attesting witnesses to sign the document. See, e.g., Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985); Hollingsworth v. Hollingsworth, 240 Ark. 582, 401 S.W.2d 555 (1966); Hanel v. Springle, 237 Ark. 356, 372 S.W.2d 822 (1963). Likewise, we have permitted substantial compliance with the requirement that the decedent sign at the “end” of the will. See, e.g., Clark v. National Bank of Commerce, 304 Ark. 352, 802 S.W.2d 452 (1991); Weems v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951).

In contrast, we have required strict compliance with the requirement that there be at least two attesting witnesses. See, e.g., Burns v. Adamson, 313 Ark. 281, 854 S.W.2d 723 (1993); Johnson v. Hinton, 130 Ark. 394, 197 S.W. 706 (1917). As with the number of attesting witnesses, the probate code clearly and unambiguously provides that the attesting witnesses be “eighteen (18) years of age or older.” Ark. Code Ann. § 28-25-102(a). This unequivocal language leaves no room for judicial interpretation or substantial compliance. Accordingly, we hold that the trial court did not err when it ruled that the August 1, 1996 will was invalid because one of the witnesses was less than eighteen years old at the time she signed it.

III. Other Jurisdictions

Ms. Norton urges us to disregard the age requirement if the witness is otherwise competent. Ms. Norton is correct that some jurisdictions do not utilize an age requirement but instead require the attesting witness to be competent. See Unif. Probate Code § 2-505 (1993); William J. Bowe & Douglas H. Parker, Page on the Law of Wills §§ 19.80 and 19.81 (1960). The Arkansas General Assembly, however, has unequivocally spoken on the matter of who is a competent attesting witness. Specifically, the legislature has declared that: “Any person, eighteen (18) years or age or older, competent to be a witness generally in this state may act as [an] attesting witness to a will.” Ark. Code Ann. § 28-25-102(a). The statute does not say eighteen “or” competent. It requires both. This was a policy determination properly made by the legislature. As we have said on numerous occasions, the determination of public policy lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999); Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). Simply put, the legislature has clearly and unambiguously expressed its intention that the attesting witness be both competent and at least eighteen years of age, and we will not override or overlook those requirements.

For these reasons, we affirm the trial court’s order of summary judgment.

Brown, J., not participating.

       We, however, disagree with Ms. Norton’s assertion that we allowed substantial compliance in Anthony v. College of the Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944). In Anthony, we held that the will was valid because the appellant failed to rebut a presumption that the testator’s signature was on the will at the time the attesting witnesses signed the instrument. See also Burns v. Adamson, 313 Ark. 281, 854 S.W.2d 723 (1993) (sufficiently rebutting the presumption).

       In the order of summary judgment, the trial court incorrectly cited In re: Estate of Sharp, 306 Ark. 268, 810 S.W.2d 982 (1991), as standing for the proposition that Ark. Code Ann. § 28-25-103(a) requires two witnesses to a will. In re: Estate of Sharp, supra, discusses the number of attesting witness who must testify in order to prove the will under Ark. Code Ann. § 28-40-117(a) (1987). It does not deal with the number of witnesses who must sign the will under Ark. Code Ann. § 28-25-103(a).


source: Caselaw Access Project

author: Ray Thornton, Justice. Tom Glaze, Justice,

license: Public Domain

text:
    Sherman Dale RENSHAW v. Larry NORRIS, Director, Arkansas Department of Correction
    CR 97-1074
    989 S.W.2d 515
    Supreme Court of Arkansas
    Opinion delivered May 13, 1999

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Kelly K Hill, Deputy Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant, Sherman Dale Renshaw, brings this writ of habeas corpus, alleging that he is being illegally detained pursuant to a sentence longer than that authorized by statute. Upon conviction of three felonies, appellant was sentenced on July 26, 1989, to a total of fifty years’ imprisonment. A judgment and commitment order was filed sentencing appellant to fifty years for possession of a schedule II narcotic, a class Y felony; to thirty years for possession of a schedule II stimulant, a class B felony; and to ten years for possession of drug paraphernalia, a class C felony. The judgment and commitment order provided that these sentences would run concurrently for a total of fifty years.

Upon a motion for postconviction relief to the trial court, the sentences of fifty years for the class Y felony and thirty years for the class B felony were challenged as exceeding the statutory máximums of forty and twenty years respectively. See Ark. Code Ann. § 5-64-401(a)(1)(i) and (ii) (1987). Under the authority of the postconviction relief provided by Ark. Code Ann. § 16-90-111(a), the court entered an amended order on November 21, 1989, which: 1) did not alter the excessive thirty-year sentence for the class B felony; 2) corrected the sentence for the class Y felony by reducing it to the statutory maximum of forty years; and 3) reimposed the valid ten-year sentence for the possession of drug paraphernalia, but modified that sentence to run consecutively to the forty-year corrected sentence for the class Y felony, thereby imposing a cumulative sentence of fifty years. We conclude that the trial court failed to correct the illegal thirty-year sentence, and lacked jurisdiction to modify the valid ten-year sentence by expanding it to run consecutively to the forty-year sentence. Therefore, we reverse and remand to the trial court for appropriate relief.

The Arkansas Constitution provides: “The privilege of the writ of habeas corpus shall not be suspended, except by the General Assembly, in case of rebellion, insurrection or invasion, when the public safety may require it.” Ark. Const. art. 2 § 11. The General Assembly has enacted statutory procedures to be followed in obtaining habeas corpus relief. See Ark. Code Ann. §§ 16-112-101 through 16-12-123 (1987). And this court has made it clear that the writ is appropriate when a person is detained without lawful authority. See Kozal v. Board of Correction, 310 Ark. 648, 840 S.W.2d 164 (1992).

Detention for an illegal period of time is precisely what a writ of habeas corpus is designed to correct. American Jurisprudence 2d states the fundamental principle of law:

Challenges to the length of confinement are properly considered in the context of habeas corpus proceedings. Thus, the unlawful confinement of an individual under a sentence longer than that permitted by statute constitutes a denial of liberty without due process of law, and a petitioner alleging such confinement is entitled to seek habeas corpus relief under the Great Writ.

39 Am. Jur. 2d § 66 (1999). The Great Writ provides protection for petitioners who are confined under sentences longer than that permitted by statute. See, e.g., Manville v. Hampton, 471 S.E.2d 872 (Ga. 1996); State v. Purkett, 908 S.W.2d 691 (Mo. App. W.D. 1995). In Manville, the Georgia Supreme Court noted that if the petitioner was confined for a sentence longer than that permitted by statute, this would be a denial of liberty without due process of law and a writ of habeas corpus would issue. In Purkett, the petitioner was sentenced to fifteen years for attempted sodomy when the maximum sentence was seven years. The Missouri Supreme Court wrote that habeas corpus was the proper remedy for one sentenced in excess of what was authorized by law. Because the petitioner had served the authorized sentence, he was ordered discharged from detention.

Many jurisdictions employ the writ of habeas corpus to reduce the term of an excessive sentence to that authorized by statute although the petitioner has not yet completed the valid portion of his sentences. See, e.g., In re Tartar, 339 P.2d 553 (Cal. 1959); Landreth v. Gladden, 324 P.2d 475 (Org. 1958); Ex parte Hill, 528 S.W.2d 125 (Tex. Crim. App. 1975). See also, United States v. Wilson, 997 F.2d 429 (8th Cir. 1993).

A writ of habeas corpus will issue where a commitment is invalid on its face or where the sentencing court lacked subject-matter jurisdiction to enter or modify the sentence. See, e.g., Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997), Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). When a habeas corpus petition alleges that a sentence is void or illegal, we review the matter of the trial court’s subject-matter jurisdiction to enter such sentences regardless of whether an objection was made to the trial court. Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986). See also Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985). The Arkansas Court of Appeals in Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997), reiterated our treatment of allegations of illegal sentences:

The State may raise at any time the illegality of reducing a sentence, and the issue of an illegal sentence may be raised for the first time on appeal. In Bangs v. State, 310 Ark. 235, 239, 835 S.W.2d 294 (1992), the Arkansas Supreme Court said, “[W]e treat allegations of void or illegal sentences similar to problems of subject matter jurisdiction in that we review such allegations whether or not an objection was made in the trial court. Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986). A sentence is void when the trial court lacks authority to impose it. Id."

The question then becomes whether there are time limits on when a petitioner must file a writ of habeas corpus based on an illegal sentence. Certainly, a petitioner cannot waive a court’s lack of subject-matter jurisdiction. And neither the Arkansas Constitution nor the state statutes place a time limit on pursuing a writ of habeas corpus. Indeed, to do so would contravene the proscription against suspending the right to habeas corpus.

There is the pronouncement in Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995), that we do not consider the question of an illegal sentence, except in life imprisonment or death-sentence cases, unless raised on appeal. Bilderback was not a habeas corpus case. In fact, it was the State that pointed out in Bilderback that the six-year sentence imposed might have exceeded what was allowable by statute. It is clear that Bilderback cannot be read as placing a time limit on when a writ of habeas corpus must be filed. Such an interpretation to limit the remedy of habeas corpus would be a “suspension” and would violate the Arkansas Constitution. See Ark. Const. art. 2 § 11.

The trial court did have jurisdiction to correct the illegal fifty-year sentence for a class Y felony by reducing it to the statutory maximum of forty years. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992); In re Bonner, 151 U.S. 242 (1893). However, once the trial court corrected the illegal term of fifty years by reducing it to the statutory maximum of forty years as prescribed by Ark. Code Ann. § 5-64-401 (a)(1)(i) (1987), it lacked jurisdiction to further modify or increase that sentence. Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984); Massey v. State, 278 Ark. 625, 648 S.W.2d 52 (1983).

Appellant’s original thirty-year sentence for a class B felony remains invalid on its face because it does not conform to the statutory maximum of twenty years. Ark. Code Ann. § 5-64-401(a)(1)(h) (1987). Where a trial court exceeded its authority in imposing an illegal sentence, we have said that this court could consider such a matter, even though not raised at trial, because subject-matter jurisdiction cannot be waived by the parties. Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985). Where a trial court’s error has nothing to do with guilt or innocence and relates only to punishment, it may be corrected in lieu of reversing and remanding. Bangs v. State, 310 Ark. 253, 835 S.W.2d 294 (1992).

Accordingly, we hold that the petition for a writ of habeas corpus should be granted because the original trial judge sentenced Renshaw to thirty years for a class B felony when the statutory maximum is twenty years. We need not decide in this case whether the trial court’s action in proceeding without subject-matter jurisdiction to modify the valid ten-year sentence for a class C felony by making it run consecutively rather than concurrently is subject to the writ of habeas corpus because of the availability of another remedy. Arkansas Code Annotated § 16-90-111, the provision for postconviction relief in effect from May 30, 1989 until January 1, 1991, provides authority to correct an illegal sentence at any time. Appellant raises the applicability of this postconviction relief in his pleading, and as we have previously noted, we have authority to address the issue of subject-matter jurisdiction regardless of whether an objection was made to the trial court. Howard v. State, supra.

As we stated in Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987), once a valid sentence has been put into execution, the trial court is without jurisdiction to modify, amend, or revise it. With regard to the valid ten-year sentence, we have stated that the trial court is without jurisdiction to change a judgment from concurrent to consecutive after the first part of the sentence has been put into execution. Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984). Because the trial court lacked jurisdiction to convert or modify appellant’s valid ten-year sentence for the Class C felony to run consecutively rather than concurrently with the corrected forty-year sentence, the resulting cumulative fifty-year sentence was illegal. The ten-year sentence, as originally imposed, could not be modified and must continue to run concurrently with the other sentences.

We wrote in Bangs v. State, 310 Ark. 235, 241, 835 S.W.2d 294, 297 (1992):

[T]he remedy for an illegal sentence is not dismissal of all related proceedings in the trial court and release from imprisonment. . . . The general rule is that if the original sentence is illegal, even though partially executed, the sentencing court may correct it. Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985) (citing In re Bonner, 151 U.S. 242 (1893)); see Gage v. State, 307 Ark. 285, 819 S.W.2d 279 (1991).

Accordingly, we hold that the trial court lacked subject-matter jurisdiction to change the valid ten-year sentence from running concurrently to running consecutively. The result was an illegal sentence that may be corrected under Ark. Code Ann. §16-90-111(a) (1987), which was the postconviction relief available while Rule 37 was on hiatus.

Based upon the writ of habeas corpus and the statutory provision for postconviction relief, we conclude that Renshaw is illegally detained to the extent that the sentences are excessive. We hold that the sentence for the conviction of the class B felony should be corrected to the twenty-year maximum sentence provided by statute, with that sentence to run concurrently with the sentences of forty years for the class Y felony and ten years for the class C felony, with the aggregate sentence for a term of forty years.

We reverse and remand to the trial court for the purpose of implementing the correction of the illegal sentences in accordance with this opinion.

Reversed and remanded.

Glaze and Corbin, JJ., concur in part and dissent in part.

Tom Glaze, Justice,

concurring in part; dissenting in part. Sherman Renshaw’s remedy in this case is Ark. Code Ann. § 16-90-111(a) (1987), which was in effect at the time of his sentencing. That provision provides that a circuit court may-correct an illegal sentence at any time. See also Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). Because Renshaw’s original thirty-year sentence exceeds the statutory maximum of twenty years, see Ark. Code Ann. § 16-90-111(a), that sentence should have been reduced as provided under § 16-90-111 (a). The trial court erred in refusing to do so. In this appeal, the majority court is correct in holding the trial court erred in failing to award Renshaw relief, but the majority is wrong in correcting Renshaw’s sentence by granting a writ of habeas corpus.

In authorizing the remedy of habeas corpus to correct Renshaw’s thirty-year illegal sentence, the majority has added a means by which a prisoner can now circumvent Rule 37 and its time limitations that control illegal-sentencing matters. Rule 37.1 in pertinent part provides that a prisoner may have his or her original sentence modified on the ground that (a) the sentence was imposed in violation of the Constitution and laws of the United States or this state, or (b) the court imposing the sentence was without jurisdiction to do so, or (c) the sentence was in excess of the maximum sentence authorized by law, or (d) the sentence is otherwise subject to collateral attack. However, to obtain such relief, the prisoner is required to file a petition to correct an illegal sentence within ninety days from the conviction judgment and pronouncement of sentence. Rule 37.2.

Here, the appellant failed to file a direct appeal, nor did he file a timely postconviction petition. Arkansas law is well settled that a habeas corpus proceeding will not be issued as a substitute for postconviction relief. Mackey v. Lockhart. 307 Ark. 321, 819 S.W.2d 702 (1991). In my opinion, Renshaw’s illegal thirty-year sentence can be corrected only under § 16-90-111(a), not by a writ of habeas corpus.

In conclusion, I also agree with the majority in holding the trial court erred when it modified Renshaw’s ten-year sentence to run consecutively rather than concurrently as provided in Renshaw’s original order. The rule is well settled that once a valid sentence has been put into execution, the trial court is without jurisdiction to modify, amend, or revise it. Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987). Because the trial court entered an illegal ten-year consecutive sentence, the trial court’s order should be corrected, as is permitted under § 16-90-111 (a).

Corbin, J., joins this opinion.

       Ark. R. Crim. P. 37 was abolished on May 30, 1989, and was not reinstated until January 1, 1991; thus Ark. Code Ann. § 16-90-111 was available for appellant’s post-conviction relief. The pertinent portion of that section reads:
      (a) A circuit court, upon receipt of petition by the aggrieved party for relief and after the notice of relief has been served on the prosecuting attorney, may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided in this sentence for the reduction of sentence.
      Ark Code Ann. § 16-90-111(a) (1987) (emphasis added).


author: Ray Thornton, Justice.

text:
    John Michael SINGLETON v. STATE of Arkansas
    CR 99-24
    989 S.W.2d 533
    Supreme Court of Arkansas
    Opinion delivered May 13, 1999

      Jon A. Williams, for appellant.

      Mark Pryor, Att’y Gen., by: Mac Golden, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant, John Singleton, was convicted of capital murder and sentenced to life imprisonment without parole. As his sole point on appeal, appellant argues that the trial court abused its discretion in denying a petition for change of venue. We find no error and therefore affirm.

While the sufficiency of the evidence has not been challenged, we will briefly summarize the facts. On December 8, 1997, appellant killed Richard Singleton by hitting him repeatedly in the head with a concrete block, hitting him in the chest with a baseball bat, and cutting his neck with a sword. The next day, appellant wrapped the body in a tarp and sealed it with duct tape. He then put the body in the trunk of his car and dumped it from a bridge in rural Greene County. A jury trial was held on July 7 and 8, 1998, and the jury returned a guilty verdict.

On July 2, 1998, the Paragould Daily Press published an article that reported the police’s contention that appellant disposed of Richard Singleton’s body by wrapping it in a tarp and dumping it from a bridge. On the morning of July 7, 1998, appellant filed a petition for change of venue alleging that it would be impossible for appellant to receive a fair trial in Greene County due to the newspaper article. The newspaper article was attached to the petition, however, no affidavits were attached to the petition as required by Ark. Code Ann. § 16-88-204 (1987) and no witness testimony was presented at the hearing on the petition to support the claim that appellant could not receive a fair and impartial trial in that county. The trial court reserved its ruling on the petition until the jury was polled. After the prospective jurors responded by assuring the court that they were either not affected by the article or had not read the article, the petition for change of venue was denied.

Arkansas Code Ann. § 16-88-201 (1987) state's:

Any criminal cause pending in any circuit court may be removed by the order of the court, or by the judge thereof in vacation, to the circuit court of another county whenever it shall appear, in the manner provided in this subchapter, that minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had in that county.

In order to assist the fact-finder in determining the state of mind of a county’s inhabitants one must comply with Ark Code Ann. § 16-88-204(a), which states:

The application of the defendant for an order of removal shall be by petition setting forth the facts on account of which the removal is requested. The truth of the allegations in the petition shall be supported by the affidavits of two (2) credible persons who are qualified electors, actual residents of the county, and not related to the defendant in any way.

Id. (emphasis supplied).

The language of Ark. Code Ann. § 16-88-204(a) requiring affidavits by two persons is mandatory, as evidenced by use of the word “shall.” Harris v. Whipple, 63 Ark. App. 84, 974 S.W.2d 482 (1998) (The word “shall,” when used in a statute, means that the legislature intended mandatory compliance with the statute unless such an interpretation would lead to an absurdity. Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993); Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986)). We have said that a motion for change of venue is not properly supported when the movants, affiants or witnesses are unable to show in their testimony that they have a general knowledge as to the state of mind of the inhabitants of the whole county or that they are cognizant of prejudice existing throughout the county. Taylor v. State, 334 Ark. 339, 974 S.W.2d 454 (1998)(citing Berry v. State, 290 Ark. 223, 235, 718 S.W.2d 447 (1986)).

In addition to appellant’s failure to provide affidavits or witnesses supporting his claim that he could not receive a fair and impartial in Greene County, the trial court inquired of prospective jurors whether they had read the newspaper article, or would be prejudiced by it. After this inquiry resulted in a conclusion that none of the jurors would be biased or prejudiced as a result of the article, the trial court denied the petition for the change of venue. We have held that such a survey of the jury is appropriate and there can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. Taylor v. State, 334 Ark. 339, 974 S.W.2d 454 (1998) (citing Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997)).

Appellant failed to submit the required support for his petition and the trial court found that the jury was not biased because of the newspaper article. We conclude that the trial court did not abuse its discretion in denying the petition for change of venue.

Rule 4-3(h)

As required by Ark. Code. Ann. § 16-91-113(a) and Rule 4-3(h) of the Rules of the Arkansas Supreme Court, we have reviewed the entire record for other reversible errors and, finding none, affirm the verdict and sentence of the jury.

Affirmed.


author: Lavenski R. Smith, Justice.

text:
    Russ STOCKTON v. SENTRY INSURANCE, A Mutual Company
    98-1418
    989 S.W.2d 914
    Supreme Court of Arkansas
    Opinion delivered May 13, 1999

      Smith, Maurras, Cohen, Redd & Horan, PLC, by: Matthew Horan, for appellant.

      Cross, Gunter, Witherspoon & Galchus, P.C., by: M. Stephen Bingham, for appellees.
   Lavenski R. Smith, Justice.

This case involves six causes of action, all of which arise from a business relationship between appellant, Russ Stockton, and appellee, Sentry Insurance. They include the Franchise Practices Act, outrage, breach of contract, interference of contract, negligence, and battery. Appellant contends the trial court erred in dismissing all of his claims against appellee by summary judgment. As to three causes of actions, we agree and therefore reverse and remand as to those claims. We affirm the remainder of the trial court’s judgment.

This is the second appeal of this'matter to this court and comes to our attention again pursuant to Ark. Sup. Ct. R. 1-2(a)(7). We dismissed the first appeal, and therefore did not reach its merits because the order appealed from did not constitute a final order in conformity with Ark. R. Civ. P. 54(a). Stockton v. Sentry Ins., 332 Ark. 417, 965 S.W.2d 762 (1998).

The underlying facts of this case are briefly summarized in our prior opinion. Stockton, Id. at 418. Following dismissal of the earlier appeal, Stockton amended and verified his complaint in April 1998. The amended complaint contained no new causes of action or fact allegations. In response, Sentry and McDuff filed a new motion to dismiss under Ark. R. Civ. P. 12(b)(6). The trial court granted the motion, adopting and adding to the order from the original motion to dismiss. Appellant nonsuited the claim of Melanie Stockton and brings this appeal from the court’s second dismissal order. Stockton raises three points on appeal: (1) the verified pleadings state a claim for violation of the Franchise Practices Act; (2) appellant’s pleadings alleged sufficient facts to state a claim for outrage, breach of contract, interference of contract, negligence, and battery; and (3) the court misapplied Rule 12(b)(6).

Standard of Review

The law is well setded that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entidement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997); Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998).

The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56 (1998); Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 966 S.W.2d 241 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997); Estate of Donley v. Pace Indus., 336 Ark. 101, 984 S.W.2d 421 (1999).

Franchise Act

Appellant characterizes his business relationship with appellee, Sentry Insurance, as a franchisor/franchisee arrangement governed by the Arkansas Franchise Practices Act. The Franchise Act, codified at Ark. Code Ann. § 4-72-201 et seq., defines a franchise as follows:

“Franchise” means a written or oral agreement for a definite or indefinite period, in which a person grants to another person a license to use a trade name, trademark, service mark, or related characteristic within an exclusive or nonexclusive territory, or to sell or distribute goods or services within an exclusive or nonexclusive territory, at wholesale, retail, by lease agreement, or otherwise. However, a franchise is not created by a lease, license, or concession granted by a retailer to sell goods or furnish services on or from premises which are occupied by the retailer-grantor primarily for its own merchandising activities.

To establish the existence of a franchise, Stockton alleged that his surrender of commissions and renewals from Dairyland Insurance Company, a Sentry subsidiary, constituted an investment in a franchise license from Sentry. Stockton asserts he gave up his right to receive those monies in order to obtain the right to distribute Sentry’s products under its trademark in a defined territory in an Arkansas place of business. Sentry opposes Stockton’s franchise claim by offering a copy of a document entitled “Employment Application.” The employment application contains typical information requests incident to job seeking including authorizations for an investigative report and drug testing. The authorization states that all employees would be considered “at-will.” The document also included an executed “Sales Representative Employment Contract.” This document, in eighteen numbered sections, specifically delineated the parameters of the relationship created by the agreement. In the paragraph numbered two, the following appears:

The Sales Representative shall be licensed as an agent for those of the companies for whom he transacts business, as required by law. However, he shall be the employee of the employer only and shall at all times obey instructions issued to him by, and shall be under the direct supervision and control of, the employer. The Sales Representative shall, within and throughout such territory as is from time to time assigned to him by the employer, (a) solicit and procure applications for insurance and (b) render such service to policy holders of each of the companies and perform such other incidental duties as may be from time to time requested by the employer; and the sales representative shall submit each and every such application for insurance to the employer or its appropriate affiliate or subsidiary as directed by the employer, and the Employer, or its affiliate or subsidiary, as the case may be, shall have the absolute right to accept or reject the same. (Emphasis added.)

From the above language it is apparent that the business relationship created by this contract was not a franchise within the meaning of that term in Ark. Code Ann. § 4-72-202(1). We give a liberal construction to the act to effectuate its remedial purposes. Dr. Pepper Bottling Co. v. Frantz, 311 Ark. 136, 842 S.W.2d 37 (1992). However, we must still apply its provisions according to their plain meaning. Plainly, the legislature intended the statute to apply where a person grants another person a license to “sell or distribute goods or services within an exclusive or nonexclusive territory. ...” In Frantz, we upheld the trial court’s denial of a motion for judgment notwithstanding the verdict. We did so because under the facts of that case, Frantz, the distributor, maintained inventory, had authority to set prices, and maintained a place of business in Arkansas. In the instant case, Stockton maintained no inventory, had no authority to set prices, and could not enter into a binding contract of insurance. Stockton’s authority went no further than to solicit and procure applications for insurance.

Although not binding on this court, we find the facts and analysis of Kent Jenkins Sales, Inc. v. Angelo Brothers Company, 804 F.2d 482 (8th Cir. 1986), more analogous and persuasive for resolving the instant case. Stockton, just as the appellant in Kent Jenkins Sales, should be considered a promoter or solicitor of sales rather than an actual seller. The contract language is clear that Stockton’s authority was limited to solicitation and procurement of applications. This distinction is crucial and played a substantial role in the reasoning of the court in Bush v. National School Studies, Inc., 139 Wis.2d 635, 407 N.W.2d 883 (1987), a case upon which we relied in Frantz. The Illinois appeals court’s holding in Vitkaukas v. State Farm Mut. Auto. Ins., 157 Ill. App.3d 317, 509 N.E.2d 1385 (1987) is also persuasive. There, the court held the Illinois Franchise Act inapplicable to an insurance salesman where he had no authority to consummate a sale but could only solicit applications. We therefore hold that the trial court properly dismissed the claim as a matter of law in that no genuine issue of fact existed as to whether appellant had a franchise from Sentry Insurance.

Outrage and Battery

Appellant’s complaint alleges that Sentry committed the torts of outrage and battery largely based upon a series of events occurring following his termination. At the time of Stockton’s termination, Sentry informed him of the procedure for extending his dental insurance benefits. Appellant contends he completed the prescribed process and made an appointment to have crowns put on his teeth. Appellant alleges that, in mid-procedure, the dentist stopped because someone on the dentist’s staff told the dentist the insurer called and said they would not cover the procedure. The dentist put a temporary plastic cap on his “drilled-off tooth” which caused him discomfort until he could come up with the money to pay the dentist to complete the work. The outrage claim also includes alleged abuse by Appellee McDuff in calling Appellant Russ Stockton’s wife and telling her he was a “lazy s.o.b.” who wasn’t good enough for her, and that he was going to terminate him while she was pregnant like he had terminated another employee whose wife was terminally ill.

To succeed on a tort-of-outrage claim, the plaintiff must prove that 1) the defendant intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct, 2) the conduct was extreme and outrageous and utterly intolerable in a civilized community, 3) the defendant’s conduct was the cause of the plaintiff’s distress, and 4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Hollomon v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996). In City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 154 (1994), we examined the history of Arkansas cases involving the tort of outrage arising out of an employee’s discharge and stated:

We have consistently taken a narrow view in recognizing claims for the tort of outrage that arise out of the discharge of an employee. The reason is that an employer must be given considerable latitude in dealing with employees, and at the same time, an employee will frequently feel considerable insult when discharged. In this context we have written: “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. However, the manner in which the discharge is accomplished or the circumstances under which it occurs may render the employer liable.” . . . The duty owed is a matter of law, and we have said that duty is to refrain from conduct that is so extreme and outrageous as to go beyond all possible bounds of decency and to be utterly intolerable in a civilized society. M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). Unicare Homes, Inc. v. Gribble, 63 Ark. App. 241 (1998).

Viewing the evidence in the light most favorable to appellant, we hold that his complaint did not state facts sufficient to constitute the tort of outrage. Certainly, if true, these allegations describe unprofessional, inconsiderate, and perhaps unethical conduct. However, without more, we do not find it to be so extreme and outrageous that it is to be considered intolerable in a civilized society. The trial court’s dismissal of appellant’s outrage claim is affirmed.

Stockton also claims Sentry is liable for battery. His complaint alleges battery based upon “the fact that Stockton was obliged to return to the dentist on a second, unnecessary occasion in order to have dental work completed.” Stockton’s reply brief further contends battery occurred because “he [Stockton] was forced to undergo an interrupted dental procedure without informed consent.” Apparently, appellant is attempting to hold Sentry responsible for actions of the dentist based upon appellee’s alleged communication with the dentist’s office. Even assuming that Stockton’s allegations as stated are true, we hold that facts that would constitute the tort of battery on the part of Sentry simply have not been put forth. We, therefore, affirm the trial court’s dismissal of the. battery claim.

Breach of Contract, Interference of Contract, and Negligence'

The final three causes of actions alleged by Stockton are breach of contract, interference of contract, and negligence. These, as the others, are based, in large measure, upon appellant’s version of events surrounding his dental treatment following termination of his relationship with Sentry. However, with respect to these claims we hold that appellant by his affidavit does set forth sufficient facts to create genuine issues of fact. Apparently, the dental insurance contract may have been with a different company than the one which employed Stockton. However, the existence of such a, contract, its terms and the consequences of its breach should be further addressed at .the trial court level through additional discovery or eventual trial. We also hold that further factual inquiry is warranted with respect to Stockton’s negligence claim. We therefore reverse the trial court’s dismissal of plaintiff s breach of contract, interference of contract, and negligence claims and remand for further proceedings.

Affirmed in part; reversed and remanded in part.


author: Per Curiam.

text:
    IN the MATTER of the ESTATE OF J.I. SEAY, Sr., Deceased; In the Matter of the Estate of Hilma R. Seay, Deceased; George L. Seay, et al. v. Helen Quinn, et al.

    99-538
    989 S.W.2d 913
    Supreme Court of Arkansas
    Opinion delivered May 13, 1999

      Malcolm R. Smith, P.A., by: Malcolm R. Smith; and Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Lance R. Miller, for movants.

      Charles J. Lincoln, P.A., by: Charles J. Lincoln; and John R. Myers, for respondents.
   Per Curiam.

Considering the motion for a reassignment of judge filed by Helen S. Quinn and First United Bank, co-trustees and personal representatives of the Estates of J.I. Seay, Sr., and Hilma R. Seay, and the response filed by George L. Seay and James Irby Seay, Jr., this court has determined the following:

1. Judge Lawrence Dawson was assigned the captioned cases when the judge of the Chancery and Probate Courts of Arkansas County of the Eleventh East Judicial Circuit recused pursuant to Ark. Code Ann. section 16-10-101, which provides that:
The Chief Justice of the Supreme Court shall be directly responsible for the efficient operation of the judicial branch and of its constituent courts and for the expeditious dispatch of litigation therein and the proper conduct of the business of the courts.
2. Judge Dawson’s term expired on December 31, 1998. Accordingly, his assignment was terminated and a new assignment was necessary.
3. On February 22, 1999, Judge David Switzer was assigned to the captioned cases under Orders Number 99-114 and 99-115.
4. On April 2, 1999, Judge Switzer held a pretrial conference and issued a pretrial order.
5. The first objection to Judge Switzer’s appointment was made on April 7, 1999, after he had conducted his first hearing.
6. This court held in Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995), that:
It is the parties’ or trial court’s responsibility to apprise this Court as to whether an assignment is necessary under Act 496. Once that assignment is made, that responsibility continues. Clearly, it is not this court’s task, on its own volition, to discover or monitor whether the circumstances have changed to warrant the termination of an assignment or reassignment.

The objection to Judge Switzer’s appointment was not timely filed. Accordingly, we deny the motion for a reassignment of judge.


author: W. H.“Dub” Arnold, Chief Justice.

text:
    Michael HENDERSON v. STATE of Arkansas
    CR 99-6
    990 S.W.2d 530
    Supreme Court of Arkansas
    Opinion delivered May 20, 1999

      William C. McArthur, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   W. H.“Dub” Arnold, Chief Justice.

The appellant, Michael Henderson, was found guilty of capital murder in the death of Billy Little, attempted capital murder of the victim’s brother, Arley Little, and aggravated robbery. He was sentenced to life imprisonment in the Arkansas Department of Correction for the capital-murder conviction. In his first appeal to this court, Henderson challenged (1) the sufficiency of the evidence, (2) the legality of his arrest, and (3) the admissibility of his statement to Pulaski County deputy sheriffs. Holding that appellant’s arrest was illegal and, accordingly, that his subsequent incriminating statement was inadmissible, we reversed and remanded for further proceedings. See Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997).

The instant case presents the second appeal in this matter. At his retrial, appellant was again convicted of capital murder, attempted capital murder, and aggravated robbery, and sentenced to fife imprisonment for the capital-murder conviction. Accordingly, our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 1-2(a)(2) (1998). From this conviction comes the instant appeal, challenging the sufficiency of the evidence. Specifically, appellant contends that the State failed to adequately corroborate the testimony of appellant’s accomplice. We find no merit in appellant’s argument, and we affirm.

I. Standard of review

At the close of the State’s case-in-chief, appellant moved for a directed verdict. The trial court denied the motion. On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Freeman v. State, 331 Ark. 130, 131, 959 S.W.2d 400, 401 (1998) (citing Williams v. State, 329 Ark. 8, 16, 946 S.W.2d 678, 682 (1997)). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Freeman, 331 Ark. at 131-32, 959 S.W.2d at 401 (1998).

Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Freeman, 331 Ark. at 131-32, 959 S.W.2d at 401 (1998). Notably, the evidence may be either direct or circumstantial. See Gillie v. State, 305 Ark. 296, 301, 808 S.W.2d 320, 322 (1991). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Gillie, 305 Ark. at 301, 808 S.W.2d at 322 (citing Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986)).

II. Sufficiency of the evidence

For his sole point on appeal, appellant argues that the State failed to present sufficient evidence to support his conviction. Specifically, appellant contends that (1) the only evidence implicating appellant in Billy Little’s death is the testimony of an accomplice, Gary Harris, Jr., the appellant’s second cousm, and (2) the State failed to adequately corroborate this accomplice testimony. Ark. Code Ann. section 16-89-111(e)(1) (1987) provides that:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

Standing alone, the corroboration for a felony conviction based upon accomplice testimony must be sufficient to establish the commission of the offense and to connect the defendant with it. Marta v. State, 336 Ark. 67, 73, 983 S.W.2d 924, 927 (1999) (citing Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996); Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996)). The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Id. Notably, circumstantial evidence qualifies as corroborating evidence, but it must be substantial, although not so substantial in and of itself to sustain a conviction. Id.

Here, contrary to appellant’s assertion, the State presented testimony from several witnesses in addition to his accomplice, Gary Harris, Jr. First, the State offered the testimony of Arley Little, the victim’s brother. Arley confirmed that he and Billy were carrying large sums of cash and were in the habit of doing so because they operated a used furniture and appliance business in North Little Rock, Arkansas, and used the cash to make purchases at area auctions.

On their way to an auction on the night of May 7, 1994, Arley and Billy stopped at the Harris home to pick up a refrigerator they had sold to the Harrises that was not working properly. After picking up the refrigerator and refunding the Harrises’ money, the Littles left for an auction in DeValls Bluff, Arkansas. After leaving the auction, they began their return trip to North Little Rock on Highway 70. Billy was driving their pickup truck, and Arley was in the passenger seat. Shordy after entering Pulaski County, a car passed the Littles, and Arley thought that his brother had run over a limb. However, Billy told Arley that he had been shot. The car that had just passed them returned, and shots were fired again. The car made a third pass, and more shots were fired. Arley managed to drive the truck to a service station and summon help. Billy subsequently died. Arley recalled that the car was light-colored and had four doors, but he was unable to see who fired the shots.

Appellant’s accomplice, Gary Harris, Jr., testified that he was present when the Littles came to his home to pick up the refrigerator, and that appellant and Gary’s brother, Larry Harris, also came by the house that evening. According to Gary, he and appellant got in Gary’s white, four-door Nissan Maxima and decided to follow the Littles and rob them along the highway. Gary testified that he drove the car while appellant was in the passenger seat. He reported that appellant brought a backpack containing a ninja mask, a ski mask, and some forearm guards. Gary also acknowledged that his .380 automatic handgun was in the console of the car between the two front seats.

After the Littles left the auction in DeVails Bluff, Gary pulled alongside the Littles’ truck. The truck swerved, and appellant began shooting out of the passenger-side window. According to Gary, appellant instructed him to turn the car around and pass by the truck again. Appellant shot at the car again. Gary then turned the car around for a third pass, and appellant fired more shots at the Littles’ truck. When Gary and appellant returned to Gary’s home, Gary went to his room, but appellant went to Gary’s brother Larry’s room. Later, Larry came to Gary and asked him where the gun was. Gary reported that it was either in the car or that appellant had it. The next day, Larry told Gary that the gun was thrown away in a drainage ditch. For his involvement in the incident, Gary pled guilty to first-degree murder, attempted capital murder, and attempted aggravated robbery, and is serving an eighty-year prison sentence.

In addition to Arley Little’s testimony and the accomplice testimony of Gary Harris, Jr., the State presented the testimony of Gary Harris, Sr., Gary’s father and appellant’s great-uncle. Gary, Sr., testified that appellant told him that he and Gary were involved in the shooting and that appellant admitted that “Gary was driving the car and [appellant] was doing the shooting.” According to Gary, Sr., appellant told him that his motivation was to rob the Littles. Significantly, John Harris, a first cousin to both appellant and Gary Harris, Jr., also testified for the State. John stated that a few days before appellant’s arrest, appellant “told me that he done a drive-by shooting on Highway 70.”

Further, the State presented testimony from Deputy Terry Ward, a sergeant with the Pulaski County Sheriffs Office, and Deputy Pete Rushing, also of the Pulaski County Sheriff s Office. Deputy Ward testified that Larry Harris showed him the drainage ditch where he had disposed of the gun, and Deputy Rushing testified that he found a .380 automatic firearm in that ditch. Ron Andrejack, a firearms-toolmark examiner with the Arkansas State Crime Lab, testified that bullets and a shell casing found on Highway 70 at the shooting site were fired from the gun found in the ditch.

We have stated that the trier of fact is free to believe all or part of a witness’s testimony. Freeman, 331 Ark. at 134, 959 S.W.2d at 402 (citing Mosley v. State, 323 Ark. at 250, 914 S.W.2d at 734)). Moreover, the credibility of witnesses is an issue for the jury and not for this court. Marta, 336 Ark. at 74, 983 S.W.2d at 928 (citing Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998)). Here, the jury apparently believed the corroborating testimony of Arley Little, Gary Harris, Sr., John Harris, Deputy Ward, Deputy Rushing, and Ron Andrejack.

Appellant cites no authority and makes no convincing argument to support his contention that the Harrises committed the murder and determined to implicate him for an act in which he did not participate. Where it is not apparent without further research that the argument is well-taken, we do not consider it on appeal. Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997). In any event, although the trial court deemed Gary Harris, Jr., an accomplice, it did not find that Gary, Sr., and John Harris were accomplices. In fact, the trial court rejected a proposed jury instruction declaring Gary, Sr., an accomplice because appellant failed to cite any evidence to support that claim.

In light of the foregoing, particularly appellant’s admissions to his great-uncle and his cousin, John Harris, we conclude that the State presented sufficient evidence to corroborate the accomplice’s testimony and to prove appellant’s participation in the crime. Accordingly, viewed in the light most favorable to the State, there is substantial evidence to support appellant’s conviction.

III. Rule 4-3(h)

In accordance with Ark. Sup. Ct. R. 4-3(h) (1998), the record has been reviewed for adverse rulings objected to by the appellant but not argued on appeal, and no reversible errors were found. We affirm appellant’s judgment of conviction.


author: Tom Glaze, Justice.

text:
    John HOLLOWAY v. RAY WHITE LUMBER COMPANY and Silvey Companies
    98-1217
    990 S.W.2d 526
    Supreme Court of Arkansas
    Opinion delivered May 20, 1999

      Eric G. Hughes, for appellant.

      Womack, Landis, Phelps, McNeill & McDaniel, by; David Landis and Mark Alan Mayfield, for appellee.
   Tom Glaze, Justice.

Ray White Lumber Company and Silvey Companies (hereafter Ray White or Company) petitioned our court for review of an unpublished opinion of the court of appeals delivered on September 16, 1998, wherein the appellate court remanded John Holloway’s workers’ compensation claim. The court of appeals concluded that, because the Workers’ Compensation Commission made some statements that were contrary to the record in its decision denying Holloway’s claim, the case should be remanded so the Commission could reexamine its findings and reconcile the discrepancies. In other words, the appellate court declined to draw any conclusions or decide the case because it found factual inconsistencies in the record. Ray White counters that the court of appeals’ decision to remand this case conflicts with this court’s standard of review in these matters as set out in Buckeye Cotton Oil v. McCoy, 272 Ark. 272, 613 S.W.2d 590 (1981). Because the Company argues that the record reflects there is substantial medical evidence to support the Commission’s decision, it asserts the appellate court erred in refusing to affirm the Commission. We granted jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(b)(5) and (e)(ii). To decide whether the Commission should be affirmed or reversed requires us to consider the relevant procedural and substantive history of this case.

This litigation stems from Holloway’s claim that, on August 13, 1991, he sustained a compensable injury as a result of pulling lumber off a “green-chain.” He said that, when he pulled a one-by-twelve, his feet slipped out from under him and the board “jumped” and popped his arm into the air like a slingshot. He related that it felt like someone stuck a knife or an ice pick in his wrist. Holloway was initially seen on August 26, 1991, by Dr. Michael Ford who subsequently referred Holloway to Kevin McLeod, an orthopedist. Thereafter, Ray White sent Holloway to Dr. Marcia Hixson, a Little Rock orthopedist, who became Holloway’s treating physician.

Ray White recognized Holloway’s injury as compensable and paid for surgery on his median nerve. However, the Company later denied the diagnosis of carpal tunnel syndrome (CTS) was work related and refused to pay for surgery to release the carpal tunnel. After a hearing in 1995, the administrative law judge agreed with the Company. The law judge found that, in 1981, Holloway sustained a nonrelated work injury to the same arm he injured on August 13, 1991, and that Dr. Edward Saer, the then-treating physician, opined Holloway would never have a totally normal hand. After additionally setting out some of Holloway’s medical history since his August 13, 1991 accident, the law judge concluded Holloway had failed to prove by a preponderance of the evidence that his carpal tunnel condition was related to his compensable injury. Holloway appealed the law judge’s decision to the Commission, which affirmed. Holloway then appealed to the court of appeals, and because the Commission failed to adopt the law judge’s opinion or to make its own findings of fact, the court of appeals, in June of 1997, returned the case to the Commission with directions to make findings. Ray White did not appeal that decision. Instead, the Commission received the case on remand and, in a 2-1 decision rendered on August 27, 1997, it again found Holloway failed to prove his carpal tunnel condition was related to his August 13, 1991 compensable injury. This time the Commission adopted the administrative law judge’s findings and opinion. It is this second opinion of the Commission, which the court of appeals determined should be remanded because of factual inconsistencies, that is at issue here.

As alluded to earlier, Ray White argues the appellate court was obliged to view the evidence in the light most favorable to the Commission’s decision and uphold that decision if supported by substantial evidence. While we agree with the rule of review espoused by the Company, we disagree that the McCoy holding it cites controls the situation now before us. In McCoy, upon conflicting medical testimony, the Commission found the claimant had failed to prove her condition arose out of her employment. On appeal, the court of appeals, without directly addressing the question of substantial evidence, found the proof to be inconclusive and sent the case back to the Commission for further investigation with the possible employment of a medical examiner pursuant to Ark. Stat. Ann. § 81-1319(i) (Repl. 1976) (current version at Ark. Code Ann. § 11-9-811 (Repl. 1996)). The McCoy court reversed the court of appeals and held that only the Commission could require a medical examination. Because there was medical testimony in the record to support the Commission’s decision denying the employee’s claim, this court affirmed.

We do not view the instant case as one where the court of appeals found the medical proof before the Commission to be inconclusive or where there was no substantial evidence in the record that could support the Commission’s denial of Holloway’s claim. Rather, Holloway submits that the Commission based its decision on certain erroneous factual findings, and as a result, the case should be reversed and remanded. We agree.

It is well settled, as pointed out by Ray White and the McCoy decision, that appellate courts view the evidence in the light most favorable to the Commission’s decision and affirm that decision when it is supported by substantial evidence. See Williams v. Prostaff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). Our court has defined substantial evidence as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. at 513. The Commission has the duty of weighing evidence, and if the evidence is conflicting, its resolution is a question of fact for the Commission. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of testimony it deems worthy of belief. Id.

In reviewing the Commission’s second opinion now on appeal, Holloway points out that the Commission determined that four highly competent physicians were unable to attribute Holloway’s carpal tunnel problems to his August 13, 1991 compensable injury, and in making that finding, the Commission mentioned only three of the four doctors — Marcia Hixson, Earl Peeples, and Paul Tucker. Of course, the Commission was not required to set out all four doctors’ opinions, but when it mentioned Hixson’s opinion, the Commission did so erroneously. As already discussed, Dr. Hixson was Holloway’s treating physician, and while not noted in the Commission’s findings, she opined on March 11 and March 25 of 1994 that Holloway’s CTS was a result of his August 13, 1991 injury. Instead, the Commission seemed to base its decision on an earlier statement made by Hixson in June of 1992 where she said that Holloway should be assigned a 20% impairment rating of the right upper extremity, but was unable to state how much of that impairment rating was attributable to the old injury. Whether the Commission simply chose to rely on the earlier Hixson statement over her clear opinions given in 1994 is further confused by its adoption of the administrative law judge’s opinion, which mistakenly states that Holloway failed to seek medical attention after his visit to Dr. Hixson on May 22, 1992, until he returned to her office on October 7, 1993. Ray White concedes Hixson saw Holloway on at least four (our review reveals at least seven) separate visits during that time period.

As stated above, the Commission was not required to believe the testimony of the claimant or any other witness; it may accept and translate into findings of fact only those portions of testimony it deems worthy of belief. However, in the present case, the Commission erred in its translation and the error involved relevant medical evidence which the Commission expressly relied on in reaching its decision. In short, because of the Commission’s errors in making its findings, an appellate court is left to speculate concerning what evidence the Commission intended to rely on when making its decision.

In conclusion, we note that our standards in the review of workers’ compensation cases remain the same. Here, like in the McCoy case, conflicting medical opinions have been given by competent physicians, and it became the duty of the Commission to weigh and resolve the evidence. Once the Commission does so, its resolution will be given the force and effect of a jury verdict. Williams, 336 Ark. at 513. The error in issue here is not that substantial evidence was not presented or considered in this case; instead, the reversible error is found in the Commission’s failing to make a proper de novo review of the record. That failure resulted in the making of erroneous factual findings that patently fail to support its decision.

For the reasons above, we reverse and remand.

       The court of appeals appeared only to remand this case, but the reason for remanding is based on error which requires a reversal.

       The record reflects Holloway had been seen by doctors Michael Ford, Kevin McLeod, Paul Tucker, David A. Miles, Marcia Hixson, and Earl Peeples. However, Ford offered no opinion about the relationship of Holloway’s CTS to his compensable injury, and McLeod merely quoted Dr. Tucker’s opinion on the issue.


text:
    Carolyn SHAW v. Alan Kres SHAW, Personal Representative of the Estate of Lloyd Kenneth Shaw, Deceased
    98-1359
    989 S.W.2d 919
    Supreme Court of Arkansas
    Opinion delivered May 20, 1999

      Richard F. Hatfield, for appellant.

      F. Wilson Bynum, Jr., P.A., by: F. Wilson Bynum, Jr., for appellee.
   Ray Thornton, Justice.

Appellant Carolyn Shaw and Lloyd Kenneth Shaw, now deceased, were married four different times over the past thirty years. While their first three marriages were terminated by divorce, their last marriage, from May 31, 1995, until June 12, 1995, ended with Kenneth’s death. The Probate Court of Garland County admitted Kenneth’s will, dated November 10, 1993, to probate. The will did not mention his wife. Mrs. Shaw filed an election to take against the will, which was denied by the probate court on the grounds that the election statute, Ark. Code Ann. § 28-39-104(a) (1987), required that she have been continuously married to Kenneth for more than one year preceding his death. She brings this appeal, arguing that she satisfied the election statute by having been married to the deceased for more than one year in each of the three previous marriages, and should therefore be able to take against the will. On this issue of statutory interpretation, we agree with the trial court’s interpretation of the law and affirm its decision.

Arkansas Code Annotated § 28-39-401 (1987) provides in pertinent part:

(a) When a married person dies testate as to all or any part of his or her estate, the surviving spouse shall have the right to take against the will if the surviving spouse has been married to the decedent continuously for a period in excess of one (1) year.
(b) In the event of such election, the rights of the surviving spouse in the estate of the deceased spouse shall be limited to the following:
(1) The surviving spouse, if a woman, shall receive dower in the deceased husband’s real estate and personal property as if he had died intestate, which dower shall be additional to her homestead rights and statutory allowances . . .

Ark. Code Ann. § 28-39-401 (1987).

Mrs. Shaw contends that the wording of the statute does not require the one-year period of marriage to be the year immediately preceding the death. Rather, she argues that her previous marriages to Kenneth, from August 1962 until March 1966, from September 1967 until June 1972, and from June 1979 until August 1986, which cumulatively total fifteen years and seven months of marriage, should satisfy the one-year requirement, notwithstanding the fact that the marriage in place at the time of Kenneth’s death lasted only thirteen days. Mrs. Shaw further contends that the legislative history of the act supports her interpretation of the statutory language.

We have uniformly held that, in the construction and interpretation of statutes, the intention of the Legislature is to be ascertained and given effect from the language of the act if that can be done. In doing this, each section is to be read in the light of every other section, and the object and purposes of the act are to be considered. The reason is that statutes are written to be understood by the people to whom they apply, and their words and phrases are considered and used in their plain and ordinary, as distinguished from their technical meaning, where the language is plain and unambiguous. In such cases it is said that, where the intention of the Legislature is clear from the words used, there is no room for construction, and no excuse for adding to or changing the meaning of the language employed. Berry v. Sale, 184 Ark. 655, 43 S.W.2d 225 (1931).

On review of an issue of statutory interpretation, we are not bound by the decision of the trial court. However, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. State v. Havens, SSI Ark. 161, 987 S.W.2d 686 (1999). Here, the language of the statute is clear and unambiguous, and does not require our resort to a review of legislative intent, as Mrs. Shaw requests. The words plainly state that “the surviving spouse shall have the right to take against the will if the surviving spouse has been married to the decedent continuously for a period in excess of one (1) year.” Ark. Code Ann. § 28-39-401(a) (emphasis added). Mrs. Shaw’s argument is essentially that each of her marriages to the deceased was a continuation of the previous marriage which ended in divorce, and that the public policy underlying the statutory requirement could be satisfied by a succession of marriages. However, each marriage did end in divorce and the marriages were dissolved. Divorce is a severing of all possible ties between two parties, and results in the dividing of the property they have acquired in the marriage on the date of the divorce, as well as the termination of dower.

In a divorce a vinculo the dissolution of the marriage is absolute. The common law in this respect is unrepealed. Here no quasi-marital relation or condition exists, after a divorce from the bonds of matrimony has been granted, upon which the right to dower can attach. Under the statutes of this state only the widow is entitled to dower. Wood v. Wood, 59 Ark. 441, 27 S.W. 641 (1894). The purpose of the election statute was to put an end to all controversies as to dower rights. A divorced wife is not entitled to dower. Beene v. Beene, 64 Ark. 518, 43 S.W. 968 (1898); Kendall v. Crenshaw, 116 Ark. 427, 173 S.W.2d 393 (1915). The election statute allows a surviving spouse to take against the will. The only marriage which produces a surviving spouse is the one which exists at the time of death. Here, that marriage lasted only thirteen days.

The Legislature used the word “continuously” in describing the marriage period. According to Black’s Law Dictionary, “continuously” means “uninterrupted; unbroken; not intermittent or occasional.” Black’s Law Dictionary 322 (6th ed. 1990). “Continuously” applies to the marriage in effect at the time of death which results in the existence of a “surviving spouse.” Because each of Mrs. Shaw’s previous marriages were terminated by divorce, her dower rights from each of those marriages were also terminated by each divorce. No statutory right to take against the will attached to the final marriage because the couple had only been married for thirteen days.

Mrs. Shaw also raises an Equal Protection argument in her brief, which was not raised to the probate court below. In the absence of a showing that the trial court was given the opportunity to pass on the arguments, we must affirm the trial court’s decision. Arguments raised for the first time on appeal will not be considered on appeal. Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993). However, we note that an equal-protection attack on the election statute has been resolved in favor of constitutionality in In re: Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984).

Affirmed.

Brown, J., not participating.


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    Dane A. BLUNT, Temporary Guardian of the Person and Estate of Dana Nicole Blunt, a Minor v. The Hon. Kathleen BELL, Probate Judge
    99-482
    990 S.W.2d 533
    Supreme Court of Arkansas
    Opinion delivered May 20, 1999

      Wilson & Valley, P.A., by: J.L. Wilson, for petitioner.

      Eilbott Law Firm, by: Don A. Eilbott, for respondents.
   Per Curiam.

Appellant, Dane A. Blunt, asserts that he is the father of Dana Nicole Blunt, a minor, whose mother, Valeria Hazel Cartwright, died as result of an accident at the Six Flags Amusement Park on March 21, 1999. Ms. Cartwright and Mr. Blunt were not married at any time. On March 25, 1999, Mr. Blunt had filed a Petition for Appointment of Guardian of the Person and Estate of his daughter in Jefferson County Probate Court, his county of residence and the place the child was physically located at the time of her mother’s death. The Jefferson County Probate Court entered an order appointing Mr. Blunt guardian of Dana on March 29, 1999, on an emergency basis, and giving notice that a hearing on the matter would be held on June 14, 1999. Pursuant to that order, Mr. Blunt removed Dana from the home of her maternal grandparents in Phillips County on April 1, 1999.

The maternal grandparents, Jerry L. Cartwright and Vallie J. Cartwright, filed a petition for temporary custody of Dana on April 13, 1999, in the probate court of Phillips County, alleging that at the time of her death, Ms. Cartwright and Dana lived in Phillips County and that it was in Dana’s best interests to be placed with them. The petition was granted in an ex parte order also dated April 13, 1999, and the Phillips County Probate Court set a hearing on the matter for April 30, 1999.

Mr. Blunt responded to the Cartwright’s petition in the Phillips County Probate Court, stating that he had already been named Dana’s guardian by the March 29 order of the Jefferson County Probate Court. On April 28, 1999, Mr. Blunt filed a Petition for Writ of Prohibition in this court, requesting that the proceedings before the Phillips County Probate be stayed pending the outcome of his guardianship action in Jefferson County. We deferred action on the petition and temporarily stayed the action in Phillips County for ten days to allow a responsive filing. The Cartwrights responded, moving for dismissal on the grounds that Mr. Blunt has not been established by a court of competent jurisdiction to be the father of Dana, and requesting oral arguments.

The Cartwrights’ response clearly indicates that there are disputed issues of fact that must be resolved. Accordingly, we decline Mr Blunt’s request for a writ of prohibition, and decline to grant the Cartwrights’ request to dismiss the proceedings in Jefferson County. However, we do wish to call the attention of the parties and the honorable courts of both Jefferson and Phillips counties to Ark. Code Ann. § 28-65-202 (1987), which provides that the venue for the appointment of a guardian shall be in the county of this state which is the domicile of the incapacitated person. This code section further provides that: “If proceedings are commenced in more than one (1) county, they shall be stayed, except in the county where first commenced, until final determination of venue by the probate court of the county where first commenced. If the proper venue is finally determined to be in another county, the court shall transmit the original file to the proper county.” Ark. Code Ann. § 28-65-202(b)(1).

Petition for writ of prohibition denied. Respondent’s motion to dismiss the proceedings in Jefferson County is denied.

Glaze, J., concurs.


text:
    James KIRBY v. STATE of Arkansas
    CR 98-1442
    989 S.W.2d 921
    Supreme Court of Arkansas
    Opinion delivered May 20, 1999

      Lea Ellen Fowler, for appellant.
    No response.
   Per Curiam.

On December 4, 1998, appellant’s counsel, Lea Ellen Fowler, filed a motion to file a belated appeal and set out that appellant’s prior counsel, James O. Clawson, had represented appellant at trial, and afterwards had failed to enter a timely notice of appeal from appellant’s convictions of aggravated robbery and theft. We remanded this case to the trial court for it to determine if appellant had requested Mr. Clawson to file an appeal. The trial court found appellant had asked Mr. Clawson on three occasions to appeal his convictions and no appeal was filed, nor did Mr. Clawson file a motion to be relieved as appellant’s counsel. The trial court’s findings are now before us, and Ms. Fowler renews appellant’s motion for belated appeal, which we grant.

In addition, based upon the circumstances described above, we order Mr. James O. Clawson to appear before this court on Thursday, June 17, 1999, at 9:00 a.m., to show cause why he should not be held in contempt for fading to file appedant’s appeal in this case.


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    Terrick Terrell NOONER v. STATE of Arkansas
    CR 98-577
    991 S.W.2d 535
    Supreme Court of Arkansas
    Opinion delivered May 20, 1999

      Appellant, pro se.

      Mark Pryor, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen., for appellee.
   Per Curiam.

Appellant was denied postconviction relief under Ark. R. Crim. P. 37. At the hearing, appellant proceeded pro se with the assistance of standby counsel and, after-wards, appellant filed a timely pro se notice of appeal. Our court remanded the case to the circuit court for appointment of counsel, and upon remand, attorney Jeff Rosenzweig was appointed. Nooner’s appellate brief was due on May 1, 1999.

In April 1999, appellant filed pro se motions to relieve and waive representation by Rosenzweig, stating he is prepared to be executed and asks “the State to enter its execution.” However, appellant further states that he is not waiving executive clemency and that he will file a further appeal “if any pleadings exist.”

The State moves that it is in no position to gauge appellant’s capacity or sincerity in seeking waiver of counsel or further appeal in this case. The State requests appellant be directed to make an unequivocal request regarding such waivers or that the case be remanded to circuit court for a determination of the bonafides of appellant’s waivers. On May 11, 1999, appellant filed a pro se motion and labeled it a “Petition of Unequivocal Statement Regarding Waiver of Jeff Rosenzweig.”

We deny appellant’s pro se petition and instead direct Mr. Rosenzweig to proceed as appellant’s counsel, which he has already done on April 28, 1999, by filing a motion to incorporate the record of appellant’s trial record into the Rule 37 record. We grant counsel’s motion to incorporate the trial record, see Drymon v. State, 327 Ark. 375, 938 S.W.2d 825 (1997), and further direct counsel to move with dispatch in pursuing appellant’s appeal to conclusion. Accordingly, this court’s clerk shall promptly issue a new briefing schedule in this matter.


text:
    J. Stephen WARNOCK v. Ann WARNOCK (Laser)
    98-698
    989 S.W.2d 922
    Supreme Court of Arkansas
    Opinion delivered May 20, 1999
    T. David Carruth, for appellant.

      Melinda R. Gilbert, P.A., for appellee.
   Per Curiam.

Appellee, Ann Warnock Laser, brings her motion for the release of appellant’s supersedeas bond, paid to this court to stay collection of the judgment against her former husband, Stephen Warnock, in the Pulaski County Chancery Court, asking that said funds be released to her in satisfaction of the judgment against appellant in her favor. Appellant responds contending that the amount of the bond is in excess of any amount owed to appellee and arguing to this court concerning the appropriate amounts owed to appellee. Both parties have also raised an issue concerning attorneys’ fees.

Both the motion and the responses raise issues of factual determination, the same issues raised to this court in appellant’s appeal to this court, which we declined to address due to the insufficiency of the abstract and record. We are not, therefore, in a position to address such matters now with regard to the release of the supersedeas bond. We deny as premature the motion to release the supersedeas bond, and refer the matter to the trial court to determine the sum of money to which each party is entitled from the bond, to address the issue of attorneys’ fees, and to thereafter advise this court of those determinations.

Motion denied and remanded.

Glaze, J., not participating.


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    IN RE: Timothy D. WILLIAMS (Arkansas Bar ID #75140)
    99-426
    989 S.W.2d 922
    Supreme Court of Arkansas
    Opinion delivered May 20, 1999

      James A. Neal, Executive Director, Supreme Court Committee on Professional Conduct, by: Lynn Williams.

   Per Curiam.

The Supreme Court Committee on Professional Conduct filed an original action in this court asking that the respondent, Mr. Timothy D. Williams, appear before this court to show cause why he should not be held in contempt for failure to comply with the procedures of this court in the regulation of professional conduct of attorneys at law. Williams’s alleged violations of supreme court procedures have been set out in the Committee’s petition and amended petition, which are attached to this order. Those alleged violations include (1) continuing the practice of law during a period of suspension, (2) fading to notify opposing counsel of record that the attorney had been suspended, (3) fading to file a copy of the notice of suspension with the court with pending cases of the suspended attorney, (4) fading to file a list of jurisdictions to which suspended attorney is admitted to practice, and (5) failing to file an affidavit of compliance with section 7 of the procedures for filing an affidavit explaining the attorney’s noncompliance.

Pursuant to the Professional Conduct Committee’s petition, as amended, we order Mr. Williams to appear before this court at 9:00 a.m. on June 24, 1999, to consider the relief requested in the Committee’s petition, including why Mr. Williams should not be held in contempt.