author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Billy Earl MITCHELL v. STATE of Arkansas
    CR 83-108
    711 S.W.2d 821
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986

      Achor & Rosenzweig, by: Jeff Rosenzweig, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

On May 25,1983 Billy Earl Mitchell was convicted of four counts of aggravated robbery. As an habitual offender he was sentenced to four consecutive life sentences. He did not testify in his own behalf and at sentencing he offered no reason why sentence should not be imposed. The judgment on those convictions was unanimously affirmed by this court on December 19,1983. Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390.

Mitchell now requests an evidentiary hearing on a Rule 37 petition. He contends he was in Seattle, Washington on June 1, 1982, when the robberies occurred. That defense was presented at trial and was rejected by the jury. It affords no basis for post-conviction relief. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983). The petition is entirely unsubstantiated and consists of nothing more than the bare assertion that Mitchell told his appointed counsel there were persons who could corroborate his alibi defense that were not called as witnesses. The petition lists five individuals (Linda Smith, Barbara Beaver, Peggy Slaughter, Willie Denton and James Poke, Jr.) whose names were allegedly given to defense counsel as being able to verify Mitchell’s presence in Seattle when the crime was committed.

We have said numerous times that allegations without substantiation do not justify a hearing. Gilbert v. State, 282 Ark. 504, 669 S.W.2d 455 (1984). And that bare allegations, without factual support do not justify an evidentiary hearing. Blakely v. State, 283 Ark. 138, 671 S.W.2d 183 (1984); Jones v. State, 283 Ark. 363, 676 S.W.2d 738 (1984).

The petition does not give the addresses of these individuals, nor tell us how they knew Mitchell, nor even that they would testify Mitchell was in Seattle on June 1, 1982 as alleged. For that matter, the petition does not even purport to claim that defense counsel did not contact these people. He claims simply that he gave his lawyer their names. We spoke to that argument in Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984):

It is well settled that the decision to call certain witnesses and reject other potential witnesses is largely a matter of trial strategy. Counsel must use his own best judgment to determine which witnesses will be beneficial to his client. See Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983). It is possible that another attorney might have attempted, and perhaps succeeded, in having the testimony of the witnesses admitted into evidence, but petitioner has not established that counsel’s decision prejudiced him or amounted to more than a tactical decision.

In order for Billy Mitchell to prevail in his allegation of ineffective assistance of counsel, he must overcome a strong presumption that his counsel was competent. He must be prepared to prove that his representation was so “patently lacking in competency or adequacy that it was the court’s duty to correct it.” Davis v. State, 267 Ark. 507, 592 S.W.2d 118 (1980). Moreover, he must prove by clear and convincing evidence that he was so prejudiced that he did not receive a fair trial. Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983). And that the result of the trial would probably have been different had it not been for defense counsel’s incompetence. Lascano v. State, 282 Ark. 501, 669 S.W.2d 453 (1984). Strickland v. Washington, 466 U.S. 668 (1984). Mitchell has failed to do that.

The petition , further charges that the testimony of petitioner’s parole officer, Randy Noah, who testified that Mitchell did not show up for an appointment on June 2, 1982 (the day after the robbery) had no probative value since Mitchell’s defense was that he was in Washington state. Though Noah’s status as a parole officer was not exposed, a reference to his “official duties” told the jury indirectly that Mitchell was a convicted felon. Thus, he argues, there was prejudice to the defense purely for the sake of prejudice since the testimony had no redeeming probative value to the prosecution. This argument would be better left unsaid for two reasons — it was raised in the appeal and therefore it is not subject to post-conviction relief, Hayes v. State, supra; more importantly, defense counsel made a timely motion for a mistrial, which hardly supports the allegation of ineffective assistance. Aside from that, Noah’s testimony had a distinct probative value to the prosecution: his testimony was that Mitchell was in his office in Little Rock on May 25,1982, and told him he was driving a 1968 Ford XL-500 two-door automobile, the car used in the robbery. Mitchell was scheduled to return on June 2 but failed to appear.

One other allegation of the petition warrants response: the petition implies that Mitchell’s guilt is doubtful, i.e. “It is important to realize that in this case the identification of Petitioner was quite weak.” To the contrary, the proof that Mitchell was one of the robbers was clear and convincing, and based on both direct and circumstantial evidence. Four masked men robbed the Godfather’s Pizza restaurant in North Little Rock at about 10:30 p.m. One of them was wearing a yellow shirt, gray pants, orange socks and silver, Corfam tuxedo slippers. Four or five victims had their money and billfolds taken from them. As the robbers were leaving in a 1968 Ford XL-500 two-door automobile they ignored a police signal to stop and drove off at high speed. The Ford evaded the police long enough for three of the men to escape on foot, before running into a ditch. Officer Polk saw the driver, whom he positively identified as Billy Mitchell, run from the car wearing a yellow shirt, gray pants, orange socks and silver shoes. The masks, money and billfolds, all identified by the victims as the articles taken from them, were recovered.

The car was identified as belonging to Joe Mitchell, Billy’s father. Mitchell was contacted that night at his home and told the officers the car was in Billy’s custody, that Billy lived with his mother at 4719 Patterson Street in North Little Rock. At trial Mitchell testified the car had been stolen, but on cross-examination he admitted the theft was not reported to the police until the following day.

The defense called four witnesses: Ms. Diane Paige, Billy’s sister, testified that on May 26, 1982 she and Billy’s mother, Bertha Thomas, put Billy on a bus at Conway, Arkansas, bound for Washington, that he called her long distance after he arrived three or four days later. Asked if he told her where he was calling from, she said, “He was in Washington. I don’t know if it was Seattle or D.C.” Mrs. Paige admitted that when the police came to her home on June 1 or 2 asking her brother’s whereabouts she did not tell them he was in Washington.

Mrs. Bertha Thomas testified that Billy was living with her during the latter part of May, 1982. She said she went with her daughter to put Billy on a bus on May 26, 1982. When asked where the station was located she said, “At Lonoke. I mean. Just a minute, was it Lonoke or Carlisle?” Later, she was unable to recall where it was. She said when the police came looking for Billy she didn’t tell them where he was because she didn’t know where he was going when he left on the bus. Nor did she tell them he had left the state on May 26.

Another witness for the defense, Glenn Mosley, an inmate at the Department of Correction, testified that he had known Billy Mitchell for six or seven years. He said that on June 2 or 3 he had received a letter from Billy addressed to him at the Pulaski County Jail. The letter was postmarked Seattle, Washington. On cross-examination he admitted he did not know exactly when he got the letter.

Another inmate, James Norwood, testified that he had participated in the June 1 robberies. He said Billy Mitchell was not one of the robbers, though he admitted Billy’s car was used. He said he and Sidney Johnson robbed the restaurant while the other two, whom he could not identify, remained in the car. On cross-examination he admitted that he had given the police a sworn, detailed statement shortly after the robberies in which he named Billy Mitchell as one of the robbers. He said his earlier statement was false.

The petition in this case provides no substance to necessitate a hearing. It consists of bare allegations and conclusory assertions. The trial record demonstrates that defense counsel, who was court appointed at little or no compensation, did the best he could with what he had to work with. Certainly the petition provides no basis whatever for ruling otherwise. Nothing in the record suggests his representation was “a farce and a mockery” (Davis v. State, 267 Ark. 507, 592 S.W.2d 118 (1980)) and, accordingly the petition is denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I think petitioner is entitled to an evidentiary hearing on his request for Rule 37 relief. All parties agree that Strickland v. Washington, 466 U.S. 668 (1984), is controlling. The real issue is whether sufficient grounds are alleged which, if proven, constitute ineffective assistance of counsel.

As an alibi defense, the defendant alleges that he was in the State of Washington on the date the crime was committed. He also alleges that he gave his appointed defense counsel the names and addresses of several people in Washington who could verify his presence in that state on the date in question. No fair-minded person could doubt that if witnesses testified that petitioner was over 2000 miles away at the time of the crime, that this proof would be much stronger than if witnesses simply testified that he was not in Little Rock at the time of the crime. With the latter testimony, all the witnesses were saying was that he was not in their presence when the crime was committed. In the present case it is important to note that the other persons convicted of this crime testified that petitioner was not with them when they committed the aggravated robbery of Godfather’s Pizza.

The appointed defense attorney apparently made no attempt to obtain an out of state subpoena for the Washington witnesses. Since he had the names and addresses of several of these witnesses, it was reasonable to expect him to try to get at least one witness present for the trial. Failure to do so, under the circumstances of this case, amounts to ineffective assistance as defined in Strickland. There is no way of determining whether the allegations are true unless the trial court gives the petitioner a chance to prove his allegations and has the opportunity to examine the allegations.

I would grant the petition.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Sylvester WILLIAMS v. STATE of Arkansas
    CR 86-26
    711 S.W.2d 825
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986

      Edward T. Barry, for appellant.

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

Sylvester Williams was charged with possession of marijuana with intent to deliver, a felony. Williams was acquitted of that charge but the jury convicted him of the lesser offense of possession, a misdemeanor, and sentenced him to six months in jail and imposed a fine of $500. Williams argues several points on appeal but we address only one, the sufficiency of the evidence, because on that basis the case must be reversed and dismissed. Our jurisdiction attaches under Rule 29(l)(a and c), interpretation and construction of Article 2, Sections 8 and 10, of the Arkansas Constitution and Ark. Stat. Ann. § 28-531 et seq. (Repl. 1979).

Deputy Sheriff" Steve Spades and Walnut Ridge police officer Kenny Jones testified for the state. The substance of their testimony was they stopped Sylvester Williams and Charles Sweat on the night of February 15,1984 for driving at a speed of 44 in a 35 mile an hour zone. Williams was driving and Sweat Was seated in the right front seat. The car emitted a visible cloud of blue smoke which the officers attributed to marijuana. Sweat had a significant amount of marijuana scattered over his clothing and a brown paper sack on the floorboard in front of him contained 3.6 ounces of marijuana. Several roaches, one still “simmering,” were found in the ash tray. No traces of marijuana were found on Sylvester Williams.

When a defense motion for a directed verdict was overruled Sylvester Williams testified that Charles Sweat had paid him $ 10 to drive him to Pocahontas in a vehicle borrowed from Williams’s ex-wife. Williams took Sweat to the Sonic drive-in where Sweat got into a truck with two other men. Williams said in about fifteen minutes Sweat came back and they left. Williams saw nothing change hands between Sweat and the other men and he did not see a paper sack in Sweat’s possession when he returned.

When they were nearing Walnut Ridge Sweat lit a marijuana cigarette. Williams said he told Sweat not to smoke that in his car and soon after that the police stopped them. Williams denied knowing anything about Sweat’s reasons for going to Pocahontas or knowing anything about the sack of marijuana. He claims he first observed the sack when officers removed it from the passenger’s side of the car. One officer’s testimony placed it in the center of the floorboard, the other on the passenger’s side between Sweat’s feet.

On appeal from a judgment of conviction in a criminal case we affirm if there was any substantial evidence to support the verdict. Pickens v. State, 6 Ark. App. 58, 638 S.W.2d 682 (1982). Substantial evidence is defined as evidence which is of sufficient force that it will compel a conclusion one way or the other. It must be more than mere suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

We have held that when the premises where contraband is found are not exclusively subject to the control and dominion of the accused, some additional factor must be present linking him to the contraband. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). The difficulty of proving possession where the defendant’s control of the premises is not exclusive was described by the authors of 56 ALR3d 948, at page 953:

As might be expected, no sharp line can be drawn to distinguish between the congeries of facts which will, and those which will not, constitute sufficient evidence of the defendant’s knowledge of the presence of illicit drugs in a place to which he had access, but not exclusive access, and over which he had some control, but not exclusive control. Consequently, in the majority of cases where the defendant’s conviction has been sustained, the courts have had to rely on certain evidential factors which, when added to nonexclusive possession by the defendant, supported a finding of the defendant’s knowledge of the presence of and control of the drugs.

In Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982) and Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978) we considered the quantum of proof necessary to sustain a conviction for possession of a controlled substance where the defendant did not have exclusive control of the premises on which the contraband was discovered. We held there must be some element of proof in addition to the joint control to link the defendant to the illegal matter. Quoting from the Ravellette opinion:

When only circumstantial evidence is presented, as here, there must be some factor in addition to the joint control of the premises to link the accused with the controlled substance. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). See also Evans v. United States, 257 F.2d 121 (C.A. 9 Cal. 1958). In other words it cannot be inferred that one in nonexclusive possession of premises knew of the presence of drugs and had joint control of them unless there were other factors from which the jury can reasonably infer the accused had joint possession and control.

In Wilkes v. State, 572 S.W.2d 538 (Tex. Cr. App. 1978) the rule was summarized:

It has been consistently held in this State that possession means more than just being where the action is: the State must prove two elements: (1) that the accused exercised care, control, and managment over the contraband, and (2) that the accused knew the matter possessed was contraband. * * * Therefore, there must be additional independent facts and circumstances which affirmatively link the accused to the contraband in such a manner that it can be concluded he had knowledge of the contraband as well as control over it. . . .” See also Rice v. State, 548 S.W.2d 725 (Tex. Cr.App. 1977).

In a similar case, State v. Bowyer, 693 S.W.2d 845 (Mo.App. 1985), a Missouri Court of Appeals reversed and dismissed a conviction for possession of about three ounces of marijuana. The defendant, driving the car of his estranged wife, who was riding as a passenger, was stopped for speeding. The officer noticed a feathered clip dangling from the rear view mirror which he recognized as an instrument for smoking marijuana. The clip contained a dried roach. The officer opened the console between the two seats and removed a Tupperware container with a partially smoked marijuana cigarette. The driver was charged with possession and convicted in spite of the estranged wife’s testimony that the defendant had not been in her car for six months, that the items belonged to her brother. In reversing, the court said:

The mere presence of the accused on the shared premises where the drugs are found, however, does not suffice to convict for possession. Nor does proximity to the contraband, alone, even as to a substance in plain sight, tend to prove ownership or possession as among several persons who share the premises.

The court noted that where the conviction rests not on exclusive possession, but on shared possession of premises, an inference of possession of contraband found in an automobile does not arise from the fact of joint possession alone, but only from evidence of additional circumstances which inculpate the accused. Bowyer at p. 849.

Here there was no evidence connecting the appellant to the marijuana other than the fact he was the driver of a borrowed car in which the marijuana was found. But even giving that fact and the proof in its entirety its highest probative value, Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977), it fails to compel a conclusion that Williams was in constructive possession of the marijuana. There is no proof Williams had knowledge of its presence in the car prior to the point at which Sweat lit a marijuana cigarette shortly before being stopped.

The state urges there was marijuana in William’s seat. But whether the car was equipped with bucket seats or a single seat is not revealed and the abstract tells us only that there was marijuana in “the seat.” Even if that were intended to mean Williams’s seat, it would not be so material to the issue of possession as to require a different result, in view of the testimony that traces of marijuana were “strung all over” the floorboard and Charles Sweat. This bit of evidence was too ambiguous to be of much value. Even if it could be said Williams had knowledge of the presence of marijuana, which arguably might be inferred from the circumstances, the proof would still be left wanting with respect to some additional element from which to conclude that Williams had control of the illegal substance. Ravellette v. State, supra. Nor do we attach any great significance to the presence of an undetermined number of roaches in the ash tray. Assuming they were marijuana (they were not produced at trial and were not tested) they could have belonged to Williams’s ex-wife, or even to someone else. The one which was smoldering may have been the one partially smoked by Sweat, which was not otherwise accounted for in the abstracted testimony.

Obviously Williams may have known about the sack of marijuana, he may even have participated in its purchase, but that is conjecture rather than fact, and our criminal law does not permit a conviction supported by conjecture alone. Redmon v. State, 282 Ark. 353, 668 S.W.2d 541 (1984).

Reversed and dismissed.


author: David Newbern, Justice. Hickman, J.,

text:
    Dewey L. EARLE, Individually, Winnie POWELL, Individually and as Next Friend of Dewey L. EARLE v. Pam BENNETT
    86-101
    711 S.W.2d 829
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986

      Art Dodrill, for appellant.

      Dodds, Kidd, Ryan & Moore, by: Judson C. Kidd, for appellee.
   David Newbern, Justice.

The appellants appeal from an order granting a guardianship of the person and estate of Dewey L. Earle and appointing the appellee as guardian. The appellants contend (1) that no notice of the guardianship petition was given to Dewey L. Earle, (2) that the appellee presented no bond, and (3) that the appellee presented no proof of incompetency of Dewey L. Earle. The appellee contends that the order was for a temporary guardianship pursuant to Ark. Stat. Ann. § 57-840 (Supp. 1985) which requires no prior notice to the prospective ward. We hold the guardianship granted was invalid.

The appellants’ abstract shows that a “Petition for Appointment of Guardian of the Person and Estate of Dewey L. Earle” was filed February 26,1986, by the appellee, and that the petition was granted by a court order of March 3, 1986. The appellants’ abstract makes no mention whatever of a temporary guardianship petition or order. The appellee does not supplement or challenge the appellants’ abstract in this respect. The record bears out the appellants’ claim that the order of March 3, 1986, granted a guardianship which was not temporary. It complied with none of the requirements of § 57-840 for a temporary guardianship.

Ark. Stat. Ann. § 57-825 (Supp. 1985) permits appointment of a guardian of the person and estate of an incapacitated person. Ark. Stat. Ann. § 57-831 (Supp. 1985), in part, provides:

Except as provided in subsection (a) of this Section, before the court shall appoint a guardian, other than a temporary guardian, notice of the hearing of the application for the appointment of such guardian shall be served upon the following:
(1) The alleged incapacitated person if over fourteen (14) years of age, and the alleged incapacitated person shall be notified of his rights under Section 16 [§ 57-835]. This notice shall be served with the notice of hearing. . .

As the exceptions in subsection (a) do not apply, and this was not a temporary guardianship, it is clear that notice to Dewey L. Earle was required to have been given prior to the appointment of the appellee as her guardian.

The appellants filed their notice of appeal in the trial court and filed the record with the clerk of this court on May 2, 1986. The appellee has abstracted an order of the probate court of June 10, 1986, which characterizes the March 3, 1986, order as one for a temporary guardianship and purports to make it final. The order of June 10,1986, is not in the record before us. If indeed such an order was entered, the court lacked jurisdiction to enter it because the record had been docketed in this court. See State v. Adkisson, 251 Ark. 119, 471 S.W.2d 332 (1971); Estes v. Masner, 244 Ark. 797, 427 S.W.2d 161 (1968); Andrews v. Lauener, 229 Ark. 894, 318 S.W.2d 805 (1958).

Reversed and dismissed.

Hickman, J.,

dissents and would affirm under Rule 9 of Rules of the Arkansas Supreme Court and Court of Appeals.


author: David Newbern, Justice.

text:
    Ronald SATTERLEE v. STATE of Arkansas
    CR 86-35
    711 S.W.2d 827
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986
    [Rehearing denied September 15, 1986.]

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant was convicted in a municipal court of driving a motor vehicle on a public highway without a driver’s license. Ark. Stat. Ann. § 75-307 (Repl. 1979). He appealed the conviction, and it was affirmed by the circuit court. In the appeal to this court, the appellant, appearing pro se, has stated thirty points for reversal. Some of the points are incomprehensible to us. Others are lacking in authority or convincing argument, and we will not consider them. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). From the appellant’s argument, we have distilled two points with which we can deal. He argues (1) the statute is an unconstitutional intrusion upon his personal rights and (2) he was not properly proceeded against as there was no indictment or jury trial. We find merit in neither contention, and thus we affirm.

1. Constitutionality of the Statute

The state has the “police power” to promulgate regulations calculated to promote safety in the use of highways. Hess v. Pawloski, 274 U.S. 352 (1927). Driving a motor vehicle on a public highway is a privilege, and not an unrestrained, natural right, and the state may require a license of those who exercise the privilege. Miami v. Aronowitz, 114 So. 2d 784 (Fla. 1959); Taylor v. State, 209 S.W.2d 191 (Tex. 1948); Cincinnati v. Wright, 67 N.E.2d 358 (Ohio 1945).

2. Propriety of Proceedings

The record shows that the appellant was to have a trial by jury but refused to accept a jury which would be limited to determining the facts as opposed to the law and the facts. He thus waived his right to be tried by a jury.

No grand jury action, indictment, or information was necessary. Driving without a license, as charged in this case, is a misdemeanor. Ark. Stat. Ann. § 75-346 (Repl. 1979). A misdemeanor may be charged by a citation as occurred here. Lowell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).

Affirmed.

Hickman, J., would affirm under Rule 9 of Rules of the Arkansas Supreme Court and Court of Appeals.


author: Per Curiam.

text:
    Donnie Ray PETERSON v. STATE of Arkansas
    711 S.W.2d 830
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986

      Appellant, pro se.
    No response by appellee.
   Per Curiam.

On January 29, 1986, petitioner Donnie Ray Peterson pleaded guilty to burglary and theft of property and was sentenced to consecutive terms of imprisonment of forty and thirty years. The sentences were ordered served consecutive to sentences imposed for three prior convictions. On February 20, 1986, he filed a motion to “correct illegal sentence” pursuant to Act 431 of 1983 and Criminal Procedure Rule 26. The motion was denied on the same day. Petitioner does not contend that the circuit court failed to inform him promptly that relief had been denied, and it is apparent that he was aware of the denial of his motion within the time for filing a notice of appeal since he mailed to this Court on March 7,1986, a pro se appellant’s brief seeking review of the lower court’s action. The brief was returned to him because a notice of appeal had not been filed and there was no record lodged with this Court. He was also informed by our criminal coordinator at that time that notices of appeal must be filed within thirty days of the date the order was entered. Although he still had until March 22 to file a timely notice of appeal, he did not do so. Petitioner now seeks a belated appeal of the circuit court order.

Petitioner’s sole reason for not filing a notice of appeal was his lack of knowledge of appellate procedure. He contends that he was relying on another prison inmate to pursue the appeal and that the inmate abandoned him after the inmate was placed in punitive isolation. He argues that since his only source of legal assistance was unavailable, he should be allowed to proceed with a belated appeal.

We will grant a belated appeal of an order denying a petition for postconviction relief if good cause is shown for the petitioner’s failure to file a timely notice of appeal. See Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). All litigants, including those who proceed pro se, must bear responsibility for conforming to the rules or demonstrating good cause for not doing so. We have consistently held that ignorance of the rules of appellate procedure is not in itself good cause to grant a belated appeal. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); Grain v. State, 280 Ark. 161, 655 S.W.2d 425 (1983).

The fact that an appellant is in prison and trusted another prisoner to advise him does not excuse the failure to conform to the rules. An appellant may not by-pass the requirement of filing a timely notice of appeal by simply asserting that he relied on a misinformed or irresponsible fellow prisoner. There is no guarantee of effective legal assistance from a person who is not a licensed attorney.

Motion denied.


author: George Rose Smith, Justice.

text:
    Willie Earl CAMPBELL v. STATE of Arkansas
    CR 85-172
    712 S.W.2d 302
    Supreme Court of Arkansas
    Opinion delivered July 14, 1986

      Cross, Kearney & McKissie, by: Gene E. McKissie, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant, Willie Earl Campbell, was charged with four felonies and with being an habitual offender with four prior convictions. The jury found Campbell guilty of all the charges and imposed sentences as follows: For burglary, 27 years; use or possession of a prohibited weapon, 10 years; being a felon in possession of a firearm, 10 years; and terroristic threatening, 15 years. The trial judge directed that the sentences run consecutively. Campbell’s appeal comes to this court under Rule 29(1 )(b).

The appellant’s attorney filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967). The Attorney General agreed that there is no merit in the appeal. Our Criminal Justice Coordinator, however, noted apparent merit and made an appropriate recommendation. We agree with her conclusion that the State failed to prove the charge of burglary.

In April, 1984, Lula Johnston, age 91, was standing on the porch of her home in Pine Bluff when a man suddenly appeared beside her. He put.his hand over her mouth and said he would kill her if she screamed. He threw her to the floor and began feeling across her breast, apparently in search of her purse. Ms. Johnston began screaming and kept it up as the intruder dragged her toward the door. She fought back until her screams brought several neighbors to the scene. At that point the intruder released her, ran through the house, and broke a rear window to make his escape. At least four of the neighbors who saw him flee recognized him as Willie Earl Campbell, whom they knew. When the police arrested Campbell at his home he was hiding in a closet. Also in the closet was a sawed-off shotgun which Campbell admitted to be his.

Burglary is defined as entering another person’s occupiable structure with the purpose of committing therein any offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002 (Repl. 1977). The State did not prove an unlawful entry upon Ms. Johnston’s front porch, for the statute permits an entry upon premises that are open to the public. Section 41-2001(3). We need not consider the possibility that Campbell entered the house for the purpose of committing an offense in the course of his efforts to escape apprehension; there was no such proof.

The judgment is modified to delete the conviction and sentence for burglary. As so modified it is

Affirmed.

Holt, C.J., not participating.


text:
    PUROLATOR COURIER CORPORATION v. ARKANSAS AIR COURIER
    86-5
    712 S.W.2d 892
    Supreme Court of Arkansas
    Opinion delivered July 14, 1986

      Friday, Eldredge & Clark, by: Michael G. Thompson, for appellant.

      Compton, Prewett, Thomas <£ Hickey, P.A., by: Floyd M. Thomas, Jr., for appellee.
   George Rose Smith, Justice.

The appellee, Arkansas Air Courier, applied to the Arkansas Transportation Commission for authority to transport by motor vehicle, between points in the State of Arkansas, various papers exchanged among banks, such as cash letters, data processing work, commercial paper, documents, and business records. The application was opposed only by the appellant, Purolator Courier Corporation. After a hearing the Commission granted the application. This appeal from the circuit court’s affirmance of the Commission’s order comes to this court under Rule 29(l)(d).

Our review in a case of this kind is de novo, much like that in a chancery appeal. Ark. Stat. Ann. § 73-1760(f) (Repl. 1979), which incorporates § 73-134. The latter section provides that the Supreme Court shall review all the evidence and make such findings as are proper and equitable. Nevertheless, we must keep in mind that the Commission saw and heard the witnesses, whereas we review the record only. Consequently we uphold the Commission’s order unless it is against the weight of the evidence. Wisinger v. Stewart, 215 Ark. 827, 223 S.W.2d 604 (1949). In the present case we find the Commission’s order to be supported by the preponderance of the evidence.

The applicant, AAC, has been transporting bank paper since it obtained a federal interstate permit in 1976. At that time all its operations were by air, but the 1981 air controllers’ strike reduced the availability of weather information to such an extent that AAC had to convert its business from air transportation to motor vehicle transportation. At first it conducted an intrastate business in Arkansas without a permit, because it was not sure that it needed a permit and was erroneously told by an employee of the Commission that no permit was required. In 1984 the present application for statewide authority was filed. AAC is a comparatively small individual proprietorship employing ten drivers and one aviation pilot. When the application was filed, AAC was serving about 80 banks in the state.

The protestant, Purolator, is a comparatively large company with interstate authority to serve virtually every point in the United States. It carries not only banking paper but also general commodities, by air as well as on the surface.

AAC’s application was supported by the Arkansas branch of the Federal Reserve Bank and by the three large Little Rock banks, all of which serve as clearing houses for smaller banks throughout the state. Their witnesses discussed in great detail the importance that banks attach to the rapid transfer of commercial paper to and from the clearing houses, so that the banks can debit and credit the checks quickly and the customers have the use of their money as soon as possible. The time required for transfers is referred to as the float or turn-around. Two witnesses testified that AAC had reduced the turn-around from two days to one. The Commission commented in its opinion on the testimony of a DeWitt banker who said that Purolator’s inability to deliver the bank’s paper until 9:25 to 10:00 a.m. had resulted in five or six employees sitting idle from 8:30 until the paper was delivered. When the bank changed to AAC, the paper was delivered by 8:15 and the employees were able to get to work at once. There was testimony that AAC adjusts its schedules to meet the banks’ needs. Purolator, by contrast, has commodities to be delivered in addition to bank paper, so that, as Purolator’s manager conceded, “we have limits to our flexibility.”

■ The specific arguments presented by Purolator do not call for extended discussion. It is said that AAC produced an insufficient number of witnesses to establish a need for AAC to be granted state-wide authority. According to the testimony as we understand it, the majority of interbank transactions in Arkansas are cleared through the three large Little Rock banks and the Federal Reserve. Representatives of all four testified in favor of the application. In addition, bankers from DeWitt, El Dorado, Salem, and Springdale testified favorably from the point of view of the smaller banks. In all, AAC presented eight public witnesses in support of its position. No public witness came forward to testify for Purolator. Since there was no testimony to indicate that something less than state-wide authority would be preferable, we hardly see that the Commission was presented with any middle ground between granting and denying the requested authority. The Commission specifically found: “There is obviously a tremendous demand for the specialized type of work and service applicant provides.” Moreover, the existence of a genuine need for AAC’s service is indicated by AAC’s having built up a clientele of some 80 banks. Several witnesses said they paid more for AAC’s service than they had for Purolator’s, but it was worth the difference.

Purolator concludes by arguing that AAC is not morally fit to receive the requested authority, because it operated illegally, without a permit, for several years and because it received three citations for violations of Arkansas law. The Commission summarily dismissed the illegality of AAC’s prior conduct by admitting for the record that a Commission employee had misled AAC. There is very little proof about the nature of the citations, but at the very most they were merely allegations, not proof. The charges had not yet been heard when the Commission decided the case. Upon the record we cannot hold that AAC is not morally fit to exercise the authority it seeks.

Affirmed.

Holt, C.J., not participating.


author: Darrell Hickman, Justice.

text:
    Larone LOWE, et ux v. Linda MORRISON, et al.
    86-92
    711 S.W.2d 833
    Supreme Court of Arkansas
    Opinion delivered July 14, 1986

      Honey & Rodgers, P.A., by: Danny P. Rodgers, for appellant.

      Sanford L. Beshear, Jr., for appellee.
   Darrell Hickman, Justice.

The question in this case is whether a third party, who has a money judgment against the husband, can force partition and sale of land held by the husband and wife by the entirety. The answer is no. The trial court dismissed the partition action filed by Larone and Floy Lowe against Jones and Helen Morrison. We affirm the decree.

The Lowes and the Morrisons are neighbors. The families got involved in a dispute and Larone Lowe was severely injured by Jones Morrison and his two sons, Nick and Rodney. Larone and Floy Lowe sued and got judgment against Jones, Nick and Rodney Morrison jointly and severally. The case was appealed twice. Morrison v. Lowe, 267 Ark. 361, 590 S.W.2d 299 (1979); Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981). Ultimately we affirmed a large judgment.

Before the second appeal, the Lowes filed suit against the Morrisons alleging that Jones Morrison fradulently conveyed his property in order to avoid having to pay the judgment. The deeds in question were executed on August 21 and 26,1975, from Jones and Helen Morrison, husband and wife, to Helen and Nick Morrison and Willie Johnson, conveying just under 400 acres of real property. Another chailenged deed was executed on July 21, 1978, in which Helen Morrison conveyed a 3.5 acre tract from the above property to Rodney and Linda Morrison, husband and wife. The chancellor found that the conveyances were made in an effort to avoid the judgment against the Morrisons and that the conveyances from Jones and Helen Morrison were void as to the interest Jones conveyed and that the deed from Helen Morrison to Rodney Morrison was void as to the interest Helen purportedly acquired from Jones by virtue of the first two deeds.

On April 23, 1984, by way of a sheriffs deed on execution, the Lowes bought several parcels of land owned by the Morrisons. They bought one parcel of 16 acres, another of 65.5, another of 36.8, another of 69 acres, and one of 3.5 acres from Rodney Morrison. Their bid of $150,000 was to be credited against the judgment.

In 1984 the Lowes filed two actions to force the sale of the land; one action concerned the 3.5 acre tract and the other concerned the remaining land. The cases were consolidated for trial. It was stipulated that all of the property was held by Jones and Helen Morrison as tenants by the entirety before the earlier conveyances. The trial judge correctly held that since he had found the deeds void and the title was again in Helen and Jones Morrison by the entirety, partition would not lie.

Partition is a statutory right. Ark. Stat. Ann. § 34-1802 (Supp. 1985) provides:

Any persons having any interest in and desiring a division of land held in joint tenancy, in common, as assigned or unassigned dower, as assigned or unassigned courtesy [curtesy], or in coparceny, absolutely or subject to the life estate of another, or otherwise, or under an estate by the entirety where said owners shall have been divorced either prior or subsequent to the passage of this Act, except where the property involved shall be a homestead and occupied by either of said divorced persons, shall file in the circuit or chancery court a written petition in which a description of the property, the names of those having an interest in it, and the amount of such interest shall be briefly stated in ordinary language, with a prayer for the division, and for a sale thereof if it shall appear that partition cannot be made without great prejudice to the owners, and thereupon all persons interested in the property who have not united in the petition shall be summoned to appear.

Noticeably absent is the right to partition an estate by the entirety where the tenants are still married. An estate by the entirety is peculiar to marriage and entails the right of survivor-ship. The right of survivorship to the whole can only be dissolved in a divorce proceeding, by death, or by the voluntary action of both parties.

In various cases we have touched on the question raised by this suit. First the right of survivorship cannot be defeated by an outsider such as a judgment creditor. Ellis v. Ashby, 227 Ark. 479, 299 S.W.2d 206 (1957). A third person can obtain a judgment against a husband or wife and that judgment will be a lien against the debtor’s interest in the land. Franks v. Wood, 217 Ark. 10, 228 S.W.2d 480 (1950). That claim cannot, however, defeat the interest of the offier spouse. Moore v. Denson, 167 Ark. 134, 268 S.W. 609 (1924). Only on the death of the other spouse can that claim be perfected. Ellis v. Ashby, supra.

In Davies v. Johnson, 124 Ark. 390, 187 S.W. 323 (1916), we held that partition would not lie against an estate by the entirety.

Affirmed.

Holt, C.J., not participating.


text:
    Robert Lee MARSHALL v. STATE of Arkansas
    CR 86-9
    712 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered July 14, 1986
    [Rehearing denied September 15, 1986.]

      William C. McArthur, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Robert Lee Marshall, who uses the alias Sido, was convicted of one count of delivery of a controlled substance, one count of attempt to deliver a controlled substance, and possession of marijuana. He was sentenced to 30 years and 10 years imprisonment and a $1,000 fine, respectively. On appeal he raises four arguments. Three are virtually unsupported by the abstract of the record and require affirmance. The fourth argument questions the sufficiency of the evidence. We find the argument meritless and affirm.

The first argument is that the court had no jurisdiction because the prosecution was barred for violation of the Interstate Agreement on Detainers, codified at Ark. Stat. Ann. §§ 43-3201 et seq. (Repl. 1977). The abstracted record is void of any substantial detail which could be the basis of a rational decision. Therefore we do not reach this issue. Rule 9, Rules of the Supreme Court and Court of Appeals; City of Star City v. Shepherd, 287 Ark. 188, 697 S.W.2d 113 (1985).

The second argument concerns two taped telephone conversations between Marshall and Otis Moseby, an informant for the sheriffs department. The tapes were played for the jury and Marshall objected on two grounds. The first objection was that the state failed to furnish copies of the tapes prior to trial; the state had provided only transcripts of the tapes. Marshall filed a motion for discovery but the contents of that motion were not abstracted. We therefore do not know whether Marshall requested copies of the tapes. We have no basis to find the trial judge abused his discretion in overruling the objection. Marshall has failed to carry his burden of presenting an abstract from which the court can determine the error of which he complains. City of Star City v. Shepherd, supra.

The second objection to the tapes was that there was an insufficient basis for authentication and identification of Marshall as being the other party to the telephone conversation. The trial judge was satisfied that Moseby could identify the other speaker as Marshall. Rule 901, Uniform Rules of Evidence, allows telephone conversations to be introduced as evidence if they are authenticated. In this case it was within the trial court’s discretion to allow the evidence. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978).

Marshall raises the argument that the taped telephone conversations violated Ark. Stat. Ann. §§ 41-4501 et seq. (Supp. 1985), the Interception of Communication Act. This argument was not made to the trial court, and we do not consider arguments raised for the first time on appeal. Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985).

The third argument is that Marshall was limited in his cross-examination of Ken Dillon, a deputy sheriff, concerning previous convictions and pending charges against Moseby. On the record before us, there is no basis to find the trial court in error. City of Star City v. Shepherd, supra.

Marshall’s fourth argument raises the issue of the sufficiency of the evidence to support two of the convictions. A review of the evidence in a light most favorable to the state is required. Moseby testified that he obtained 12 sets of “Ts and Blues” tablets from Marshall on November 8, 1984. Each set contained two tablets: one was an antihistamine and the other tablet contained pentazocine. While no money was exchanged, Moseby testified that he and Marshall agreed over the telephone that Moseby was to pay Marshall after the “sets” were sold. Later on November 20, Moseby met Marshall at a grocery store to pay for the 12 sets and to buy 20 more. Moseby, who was wired with a transmitter, gave Marshall the money for the 12 sets. Marshall then gave Moseby the 20 additional sets. At that time someone came into the grocery store and informed Marshall that Moseby worked for the sheriffs department. Marshall told Moseby to show him he was not wearing a body mike and to return the “Ts and Blues.” The officers, who were outside the store in a van monitoring the transaction, realized Moseby was in trouble. Marshall ran to a restroom in the rear of the store and was seen by two officers following him flushing a white paper towel or napkin down the commode. Marshall dropped a firearm in the bathtub and was found in possession of 2.3 grams of marijuana.

The jury convicted Marshall of one count of delivery of a controlled substance on November 8 and one count of attempt to deliver a controlled substance on November 20.

Marshall argues there was no exchange of money or anything of value to support the November 8 conviction. We have held the exchange of drugs for money or anything of value is not essential to the commission of the offense. Anderson v. State, 275 Ark. 298, 630 S.W.2d 23 (1982). Ark. Stat. Ann. § 82-2601(f) (Supp. 1985) only requires the attempted transfer of drugs in exchange for an agreed price. There is sufficient evidence to support the conviction for delivery.

Marshall argues there is insufficient evidence to support the conviction for the attempt to deliver a controlled substance on November 20, because there is no competent evidence of a controlled substance involved in the transaction. We have held it is not essential to proof of such a charge that the substance be produced in court if one sufficiently experienced with the substance could testify that it was indeed that substance. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). Moseby had received 12 sets of “Ts and Blues” on the 8th. Moseby testified the sets he received on the 20th looked like the ones he received on the 8th. Moseby further testified he had seen “Ts and Blues” before. That is sufficient evidence of a controlled substance to support the conviction.

Affirmed.

Holt, C.J., not participating.


author: John I. Purtle, Justice.

text:
    Edward Junior CRAFT v. STATE of Arkansas
    CR 86-10
    712 S.W.2d 303
    Supreme Court of Arkansas
    Opinion delivered July 14, 1986

      Tripper Cronkhite, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was charged with capital felony murder in violation of Ark. Stat. Ann. § 41-1501 (Repl. 1977). On September 5,1980, he entered a negotiated plea of guilty in return for a sentence of life without parole. He filed a Rule 37 petition on August 16, 1983. The petition, among other things, stated: “The defendant acknowledges that he is allowed by law to file such an application for relief only once in this court and that such legal action must be filed within three (3) years of his conviction by this court.” The appellant simply argued that he was not guilty, i.e. that the evidence was not sufficient. The trial court entered a written order denying the petition without a hearing on August 25, 1983.

Subsequently the appellant continued to file various motions, petitions and letters. Among the filings was a motion, dated November 1, 1985, to withdraw a plea of guilty. The trial court entered an order on December 19, 1985, denying any post conviction relief. Notice of appeal by the appellant was filed on January 2, 1986. Present counsel was appointed on March 3, 1986.

[I] It is obvious from the record that appellant is not entitled to post conviction- relief since he did not allege grounds which would void his conviction. See Rule 37.2(c); Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985). Although not before the Court in this appeal, the record shows that appellant’s first Rule 37 petition was denied by the trial court by a written order complying with Rule 37.3(a).

The appellant was entitled to but one petition pursuant to Rule 37. All grounds for relief not included in the first petition are deemed waived, unless the allegations would render the judgment of conviction absolutely void. Rule 37.2(b); Scott v. State, 267 Ark. 536, 592 S.W.2d 122 (1980). A petition claiming such relief must be filed within three years. Rule 37.2(c); Travis, supra.

We have examined the complete record and do not find any proceeding or action which was prejudicial to the appellant.

Affirmed.

Holt, C.J., not participating.


text:
    Andy McKAY and Myrna McKAY v. ST. PAUL INSURANCE CO.
    86-93
    711 S.W.2d 834
    Supreme Court of Arkansas
    Opinion delivered July 14, 1986

      Rubens & Rubens, by: David C. Peeples, for appellant.

      Rieves & Mayton, by: Ted Mackall, Jr., for appellee.
   John I. Purtle, Justice.

This suit arose out of an injury which occurred on October 16, 1981, when the appellant Andy McKay slipped and fell in a substance in the hallway of Crittenden Memorial Hospital. Based upon the answer, discovery depositions and an affidavit, the trial court granted appellee’s motion for a summary judgment. We think the trial court erred in granting the summary judgment.

Appellant Andy McKay was a security employee for the Crittenden Memorial Hospital. St. Paul Insurance Company is the liability carrier for the hospital. On the date of the occurrence other employees of the hospital were stripping and waxing the floor near where the appellant fell. After taking appellant McKay’s deposition, the appellee moved for a summary judgment. The appellants took the discovery depositions of the employees who were working on the floor on the date of the occurrence and the affidavit of Johnny Brown. The affidavit stated that Brown owned and operated a janitorial service in West Memphis, Arkansas and had been so engaged in excess of 15 years. He stated that floor cleaners or maintenance personnel should not leave wax or water on the floor because it is a danger to people walking in such areas. He stated that it was negligence to leave puddles of liquids on the floors. The discovery deposition of Richard Gist was taken on October 17, 1985. He stated he was one of the employees who had been working on the floor near where the fall had occurred. It was he who mopped up the liquid after McKay had fallen. He stated they had been working inside a roped-off area but were in the process of removing the equipment and returning it to the storage area. In describing the substance Mr. Gist stated:

[I]t could have been anything, you know. It could have been something that we was using that might have dripped from the Roto as we was putting it up, but I couldn’t swear to that. I just know it was a spot. It was skidded, a foot mark had been through it, so I couldn’t really say what it was.

Mr. Gist went on to state that the substance on the floor could have been put there by the cleaning crew.

Mr. McKay stated that the spot where he fell was about 5 feet from the roped-off area. He stated that the buckets which the floor waxers had been using were sitting close to the pharmacy, beyond the spot where he fell. In other words, according to the appellant he fell at a place somewhere between the roped-off area and the place where the mops and buckets, which had been used to clean the floor, were resting.

In order to grant a summary judgment the court must have found that reasonable minds could not have reached different conclusions based upon the pleadings, depositions, and affidavits in the file at the time the motion is acted upon. Leigh Winham Inc. v. Reynolds Ins. Agency, 279 Ark. 317, 651 S.W.2d 74 (1983). In considering a summary judgment the court must find from the pleadings, depositions, answers to interrogatories, admissions, and affidavits filed that there is no genuine issue of a material fact and as a matter of law the moving party is entitled to judgment. Hurst v. Feild, 281 Ark. 106, 661 S.W.2d 393 (1983). In testing the proof in a proceeding pursuant to a motion for summary judgment, the court must not only consider the written material but all reasonable inferences deducible therefrom viewed in a light most favorable to the party against whom the motion is directed. Clemens v. First Natl. Bank v. Berryville, 286 Ark. 290, 692 S.W.2d 222 (1985).

The pleadings, depositions, and affidavits filed in this case, considered in the light most favorable to the appellant, together with all reasonable inferences and deductions therefrom, leave genuine issues of fact to be determined. Therefore, the trial court erred in granting the motion for summary judgment.

Reversed and remanded.


text:
    WALLACE BAKER CHEVROLET CO., INC. v. Danny NELSON, d/b/a NELSON AUTO SALES
    86-125
    712 S.W.2d 896
    Supreme Court of Arkansas
    Opinion delivered July 14, 1986

      Odell Pollard, P.A., by: Margaret Bunn, for appellant.
    No brief filed.
   John I. Purtle, Justice.

Danny Nelson, d/b/a Nelson Auto Sales (appellee), sold Wallace Baker Chevrolet Company, Inc. (appellant), through the Beebe Auto Exchange, Inc., a 1983 Chevrolet Caprice automobile. Appellant resold the vehicle to a customer who returned it alleging multiple defects. Appellant then filed suit in the circuit court seeking rescission, revocation of acceptance and alleging breach of warranties pursuant to the Uniform Commercial Code. Also, a count for fraud and deceit was contained in the complaint.

The case was tried on December 17, 1984, before a judge who resigned from the bench on December 31,1984. No findings of fact and conclusions of law or judgment had been filed on the effective date of the judge’s resignation. A judgment and findings of fact and conclusions of law, dated December 27, 1984, and signed by the resigning judge was entered of record on February 12, 1985. At the conclusion of the trial the judge stated:

I can tell you what I’m going to do now, but as for making a finding of facts in regard to specific pleadings, I am going to not do that right now. . . . Well, I’m going to make my findings of fact in regard to what is before me. Whatever has been presented in regard to this. . . . Well, you know, I’m going to make my findings of fact on what has been presented to me here at this time. That’s what I’m going to do. Is there anything else to come before the court?

From the statement of the judge it is very clear he intended at a later time to announce or make written findings of fact and conclusions of law. The appellant filed a motion to set aside the judgment and a motion for a new trial. On February 12,1985, the new judge denied appellant’s motions.

Appellant argues three points for reversal: (1) the trial court erred in finding that plaintiff did not establish his cause of action under the Uniform Code; (2) the trial court erred when it failed to find the defendant falsely represented the car, and failed to apply the Arkansas law of fraud and deceit to the facts and evidence; and (3) the trial court erred when it denied appellant’s motion for a new trial and permitted entry of the judgment by the former judge. We agree with the appellant as to the third point and therefore do not discuss points one and two.

We think this case is controlled by ARCP Rule 63, which reads as follows:

If for any reason, including resignation or removal from office, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are announced or filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but, if such judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may, in his discretion, grant a new trial.

Paraphrasing the Rule and applying it to the present facts, the Rule requires that a judge who hears a case and then resigns, without entering a judgment or announcing or filing findings of fact and conclusions of law, has no authority to enter a judgment or issue findings of fact and conclusions of law at a later date. With this interpretation of the Rule in mind, we must examine the facts of this case and any applicable law to determine whether the trial court erred in denying appellant’s motions on February 12, 1985.

We do not find any decision by the Arkansas Court of Appeals or this Court which interprets this Rule. Our own Rule 63 is almost identical to Federal Rules of Civil Procedure, Rule 63. Therefore, we feel that an examination of federal cases is useful. In Re Schoenfield, 608 F.2d 930 (2d Cir. 1979), stated:

The Sixth Circuit has recently taken the position that the clear implication of Rule 63 is that a new trial is always required when prior to filing findings and conclusions a judge is disabled from proceeding further with a bench trial. Arrow-Hart, Inc. v. Philip Carey Co., 552 F.2d 711 (6th Cir. 1977).
Although this Court has never had occasion to rule on this precise issue, the Second Circuit cases concerning the substitution of judges appear to turn on the assumption that when during the course of a bench trial the original judge becomes unable to proceed, a new trial is required unless the original judge has previously filed findings of fact and conclusions of law. . . .

The opinion in Arrow-Hart, supra, construing Rule 63, stated:

However, in the absence of unanimous agreement of the parties, and where, as here, there is no oral or written expression of the deceased judge reasonably satisfying the requirements of Rule 52 concerning findings of fact and conclusions of law, we hold that a new trial is required.. . .

We agree with the reasoning in the above cited cases and find it persuasive.

It is clear that the trial judge’s intentions were to make findings of fact and conclusions of law in order to protect the parties and to complete the record. Although he did in fact do so before his resignation became effective, he failed to file or announce them until after his resignation. Therefore, the present judge should have granted appellant’s motions because the former judge had no authority to act after December 31, 1984.

Reversed and remanded for a new trial.

Holt, C.J., not participating.


author: Robert H. Dudley, Justice. Robert H. Dudley, Justice.

text:
    CITY OF MARIANNA, Martin CHAFFIN, Don CAHOON, Ed BROWN, Robert “Bub” DAVIS, Donnie EDWARDS, and Wilson KELL v. THE ARKANSAS MUNICIPAL LEAGUE, Administrator, MUNICIPAL LEAGUE DEFENSE PROGRAM
    86-131
    712 S.W.2d 305
    Supreme Court of Arkansas
    Opinion delivered July 14, 1986
    [Supplemental Opinion on Denial of Rehearing September 29, 1986.]

      Daggett, Van Dover, Donovan & Cahoon, by: Robert J. Donovan, for appellant.

      Winston Bryant and William G. Fleming, for appellee.
   Robert H. Dudley, Justice.

The appellants, the City of Marianna, its mayor and aldermen, filed this suit against the Home Indemnity Company and appellee Arkansas Municipal League, administrator for the Municipal League Defense Program. The suit seeks an order requiring the Home Indemnity Company and appellee Municipal League Defense Program: (1) to pay all costs incurred in defending a voting rights action that was filed against appellants by third parties in a United States district court; (2) to pay for any liability which might be assessed in that suit; and (3) to enter a declaratory judgment determining which of the defendants’ coverage is primary and which is secondary. After various pleadings were filed, each of the parties filed a motion for summary judgment. The trial court granted summary judgment dismissing appellee Municipal League Defense Program from this suit. In addition, the trial court granted that part of appellants’ motion asking that Home Indemnity Company be ordered to pay the costs of defending the United States district court action. No action has been taken yet by the trial court on that part of this lawsuit which seeks a declaratory judgment that Home Indemnity Company is liable for damages. In summation, there are still issues pending in the trial court between appellants and the Home Indemnity Company. Appellants seek to appeal only that part of the action involving appellee Municipal League Defense Program.

We dismiss the appeal because the order appealed from is not a final order, a jurisdictional requirement which we are obliged to raise even when the parties do not. 3-W Lumber Co. v. Housing Authority for the City of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985).

718 S.W.2d 946

ARCP Rule 54(b) provides that when multiple parties are involved, or where more than one claim is presented, the trial court may direct the entry of a_/z«c/judgment as to one or more but fewer than all of the parties and claims only upon an express determination that there is no just reason for delay and upon the express direction for the entry of the judgment.

Here, the order appealed from dismissed neither all of the parties, nor all of the claims. Rule 54(b) specifically applies. Inasmuch as the order did not comply with the rule, no final judgment has been entered and no appeal may be taken at this stage of the proceeding.

Appeal dismissed.

Holt, C.J., not participating.

Supplemental Opinion on Rehearing September 29, 1986

Robert H. Dudley, Justice.

We deny petitioners’ request for rehearing because petitioners did not comply with ARCP Rule 54(b). However, we modify the mandate dismissing the appeal to a dismissal without prejudice to the right of petitioner to apply to the trial court for a determination and direction under ARCP Rule 54(b). We express no opinion as to whether the determination and direction should be made as this is a matter within the discretion of the trial court. If the determination and direction are made, a new appeal may come before us on the present briefs and record supplemented to show the subsequent proceedings.


author: Robert H. Dudley, Justice.

text:
    Terry Wayne PORTER v. STATE of Arkansas
    CR 85-226
    712 S.W.2d 304
    Supreme Court of Arkansas
    Opinion delivered July 14, 1986

      Grant & Berry, by: Sandra T. Berry, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant Terry Wayne Porter pleaded guilty to capital murder in January 1984. The following May he filed a petition seeking to vacate the plea pursuant to A.R.Cr.P. Rule 26.1. The petition was denied without written findings of fact. In 1985, petitioner filed a Rule 37 petition raising allegations similar to those raised in the earlier Rule 26.1 petition. The petition was denied with the docket notation “previous Rule 37’s have been denied and the subsequent motion is likewise denied, because defendant is entitled to only one Rule 37 and has had more than that.” Appellant brings this appeal. His sole argument is that the trial court erred in refusing to hold an evidentiary hearing on the petition. We affirm the trial court.

The trial court had already considered and denied one petition for post-conviction relief filed by the petitioner before he filed the petition in question. Although he labeled the first petition a petition pursuant to Rule 26.1, the trial court was free to consider it as a petition under Rule 37 since it raised grounds within the purview of Rule 37. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984). A petitioner is not entitled to file a second petition containing Rule 37 grounds unless his original petition was specifically denied without prejudice to filing a subsequent petition. A.R.Cr.P. Rule 37.2(b); Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981). The rule governing second petitions applies to all petitioners, including those convicted of capital murder. Ruiz v. State, 280 Ark. 190, 655 S.W.2d 441 (1983).

Affirmed.


text:
    Ann M. LUECKE, Executrix of the Estate of Nell S. SIMPSON, Deceased v. MERCANTILE BANK OF JONESBORO, ARKANSAS, Executor of the Estate of S.L. SIMPSON, Deceased, Marion S. CURTNER and Mary Louise BEENE
    86-54
    712 S.W.2d 306
    Supreme Court of Arkansas
    Opinion delivered July 14, 1986
    [Rehearing denied September 15, 1986.]

      Clayton L. Phillips, Jr., and Robert S. Laney, for appellant.

      Shaver, Shaver & Smith, by: J.L. Shaver, and Walker, Snellgrove, Laser & Langley, by: G.D. Walker, for appellee.
   Steele Hays, Justice.

This is the second appeal arising from a spousal murder-suicide. See Luecke v. Mercantile Bank of Jonesboro, 286 Ark. 304, 691 S.W.2d 843 (1985). Mrs. Nell Simpson died at the hands of her husband, S.L. Simpson, on October 7,1978. Mr. Simpson’s death occurred some hours later. The parties are identical in both appeals: Appellant Ann Luecke is a daughter of Mrs. Simpson by an earlier marriage and the executrix of Mrs. Simpson’s will; appellees are the daughters of Mr. Simpson, and Mercantile Bank is the executor of his will. Our jurisdiction occurs by reason of the second appeal, Rule 29(l)(i)(j).

After successfully pursuing a wrongful death action in federal court, Mrs. Luecke filed suit in the Craighead Chancery Court to impose a constructive trust upon certain assets of Mr. Simpson’s estate and to establish an interest in real and personal property held jointly or as tenants by the entirety. The chancellor divided the assets, some to Mrs. Simpson’s estate, some to Mr. Simpson’s. The jointly held properties, rather than in strict adherence to the rule of survivorship, were divided equally between the two estates as if the decedents had been tenants in common. That decision was affirmed in the first appeal.

After Luecke v. Mercantile Bank had become final, Mrs. Luecke filed a Creditors Bill in chancery to apply the rationale of divorce to the property interests altered by the two deaths. The suit was predicated on the theory that if the Simpsons had survived the October 7, 1978 incident, Mrs. Simpson would have had grounds for divorce, giving her the status of a creditor according to her entitlements based on the divorce laws in effect at the time. Mrs. Luecke asked that the resulting indebtedness of the S.L. Simpson estate to the Nell Simpson estate be liquidated, that the claim be given a higher priority than the claims of Mr. Simpson’s heirs, and that the attorneys for “the wife” be awarded attorneys’ fees as in divorce cases.

Mr. Simpson’s executor filed a motion under ARCP Rule 12(b)(6) to dismiss the suit for failure to state facts upon which relief can be granted and the motion was sustained. On appeal we affirm the order of dismissal.

This is a novel but unmistakable attempt by the appellant to relitigate the issues adjudicated in the earlier phases of the case and affirmed in the first appeal. Appellant has seized upon dictum in our opinion which compared the chancellor’s dissolution of the joint tenancies to the manner of handling such properties in divorce. There was no intent on our part to imply that the chancellor’s attempt to reach an equitable solution to an extraordinary situation, i.e. the murder and suicide of a husband and wife, should bind us to apply the statutory incidents of divorce in any literal sense. What we said was:

As to the property held by Mr. and Mrs. Simpson as tenants by the entirety, we think the better rule is that applied by the trial court which holds that the murder/ suicide severed the marital relationship and the parties became tenants in common, entitling each to recover xh of the property. In adopting this viewpoint, we apparently align ourselves with the majority of courts who have ruled on this subject. The effect of the severance of the marital relationship is much like that caused by divorce. Likewise, our holding is consistent with our statutory law on divorce which provides for a similar equal division of the property, Ark. Stat. Ann. § 34-1215 (Supp. 1983). (Citations omitted).

The observation was made simply to point out that the chancellor’s treatment of the problem was comparable to divorce, for whatever logic might be found in the analogy. It was entirely dictum and should be seen as nothing more than that. Even if it could be said the argument had merit, which we do not suggest, it may not be introduced as an afterthought to a trial and an appeal of the identical issues, although presented on other theories. Hastings v. Rose Courts, Inc., 237 Ark. 426, 373 S.W.2d 583 (1963).

Mrs. Luecke also contends she has been denied procedural due process by the dismissal of her suit. The answer, of course, is that she has had a full opportunity to present her claims against the estate of S.L. Simpson and she may not be heard twice on issues which have been fairly tried and decided. Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972). Smith v. Smith, 241 Ark. 465, 409 S.W.2d 317 (1966).

Affirmed.

Holt, C.J., not participating.


text:
    Lauren David NORSWORTHY v. Suzanne NORSWORTHY
    86-97
    713 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered July 14, 1986

      Rose Law Firm, A Professional Association, by: Richard T. Donovan, for appellant.

      Saxton & Ayres, by: Clint Saxton, for appellee.
   Steele Hays, Justice.

This appeal involves the Uniform Child Custody Jurisdiction Act (Ark. Stat. Ann. § 34-2701, et seq. Supp. 1985) and the Parental Kidnapping Prevention Act of 1980 (Pub. L. 96-611, 28 USC § 1738A). Appellee Suzanne Norsworthy and Appellant Lauren Norsworthy married in Harris County, Texas in August of 1977. A year later a daughter, Darlah, was born. In 1984 Suzanne filed suit for divorce in Harris County. On April 10, 1984 a temporary order giving Suzanne custody was entered by agreement. On June 1, 1985 Suzanne moved with Darlah to' Crittenden County, Arkansas, where Suzanne’s father lived.

On September 19,1985 Lauren Norsworthy called Suzanne to say he was coming to Arkansas and would like to visit Darlah. The next day he filed suit for divorce and custody in Henderson County, Texas and on September 21, as planned, he obtained custody of Darlah ostensibly for a brief visit. Instead of returning Darlah to her mother he took her to Texas, placing her in the custody of his brother, Gaylon Norsworthy. On September 24 Suzanne was served with process in Arkansas in the Henderson County suit. Suzanne promptly filed suit for divorce and custody in Crittenden County.

In response to the Arkansas proceedings, Lauren challenged jurisdiction in a motion to dismiss, citing Ark. Stat. Ann. § 34-2706(a), which provides that a court shall not exercise its jurisdiction if there is a pending proceeding in another state. In the alternative the Arkansas court was asked to stay its proceedings until the Texas court determined if it had jurisdiction.

The Arkansas court entered an order finding that Suzanne had temporary custody of Darlah pursuant to the order of the District Court of Harris County, Texas. The order recited that Lauren had obtained custody of Darlah by subterfuge, and that Arkansas had jurisdiction pursuant to Ark. Stat. Ann. § 34-2703(a)(2). The order denied the motion to dismiss, directed the immediate return of Darlah to Arkansas, and set a hearing for October 16. On October 16 Suzanne petitioned for a contempt citation against Lauren for failure to return Darlah and the chancellor ordered him to appear on October 30 to show cause why he should not be held in contempt.

On October 21 Suzanne amended her complaint to ask for alimony, child support and attorneys’ fees. Lauren sought a writ of prohibition from this court to prevent the chancellor from asserting jurisdiction in the Crittenden County proceedings. That petition was denied and on November 6 Lauren Norsworthy was held, in contempt for his failure to return Darlah to Suzanne. A punishment of ninety days in jail was imposed.

The chancellor entered a decree of divorce finding that pursuant to Ark. Stat. Ann. § 34-2703(a)(2), Arkansas has jurisdiction to determine the custody of Darlah and is the most convenient forum under § 34-2707. Suzanne was awarded custody, child support and attorneys’ fees.

Lauren Norsworthy has appealed on two points of error: Arkansas was without jurisdiction to adjudicate the custody of Darlah pursuant to Ark. Stat. Ann. § 34-2706(a) and the chancellor erred in refusing to stay the proceedings in order to communicate directly with the District Court of Henderson County, Texas, as provided in Ark. Stat. Ann. § 34-2706(c). Neither brief cites the Parental Kidnapping Prevention Act, which must be read in conjunction with the Uniform Child Custody Jurisdiction Act, as where the two acts conflict, the preemptive Parental Kidnapping Prevention Act controls. Leslie L.F. v. Constance F., 110 Misc. 2d 86, 441 N.Y.S.2d 911 (Fam.Ct. 1981).

Appellant cites § 34-2706(a):

A court of this State shall not exercise its jurisdiction under this Act [§§ 34-2701 — 34-2725] if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Act, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons.

He contends that because a suit for Darlah’s custody was pending in the District Court of Henderson County filed on September 20, 1985, the Chancery Court of Crittenden County must dismiss the custody suit filed there by Suzanne a week later. We readily reject that contention for several reasons: first, it is not at all evident from this record that the District Court of Henderson County was exercising jurisdiction “substantially in conformity with” the Uniform Child Custody Jurisdiction Act (§ 34-2706(a)). There had been, it is true, a suit pending in Harris County which clearly constituted an exercise of jurisdiction in conformity with the act, though what the present status of that proceeding is, is not entirely clear. The briefs indicate that the case was dismissed in 1984 for failure to prosecute. Be that as it may, we have no basis for knowing what jurisdictional claims, if any, Henderson County may have had on September 20, 1985, when Mr. Norsworthy filed his suit there, or, indeed, whether under the venue laws of Texas, Henderson County was the proper place to decide the custody of Darlah Norsworthy. So far as we can determine from the record Darlah had never been to Henderson County. Certainly we are told nothing about the connection Henderson County may, or may not, have had with this family for purposes of qualifying as an appropriate forum to decide Darlah’s custody under the act. Ark. Stat. Ann. § 34-2701 (a)(3).

Secondly, while not controlling, the manner by which Henderson County is assertedly empowered with jurisdiction under the act to decide Darlah’s custody to the exclusion of Arkansas is of some significance. One of the primary objectives of the Uniform Child Custody Jurisdiction Act is to “deter abductions and other unilateral removals of children undertaken to obtain custody awards” (See Ark. Stat. Ann. § 34-2701 (a)(5)). That objective would be thwarted in blatant fashion if Mr. Norsworthy could achieve the summary dismissal of Mrs. Norsworthy’s suit in Arkansas by the methods he employed in attempting to invest jurisdiction in the Henderson County District Court, methods which the act was plainly designed to discourage. See Davis v. Davis, 285 Ark. 403, 687 S.W.2d 843 (1985). The act expressly directs that it be construed to promote the general purposes enumerated in § 34-2701 and on that basis alone we would be loath to reverse on this argument. Whether Mrs. Norsworthy is subject to the same criticism for the unilateral removal of Darlah from Texas to Arkansas without approval from the Harris County District Court, we could not say on the state of this record. We note only that Mr. Norsworthy seems to have voiced no complaint at the time.

While we reject appellant’s first point, we must agree with his alternative argument, that the Arkansas chancellor erred in declining to implement those provisions of the act intended to promote cooperation between the courts of two or more states concerned with the custody of a particular child. While all of the nine objections listed in § 34-2701 deal with these common objectives, sub-paragraphs (1), (2), (7) and (8) are specific:

(a) The general purposes of this Act . . . are to:
(1) avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
(2) promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;
(7) facilitate the enforcement of custody decrees of other states;
(8) promote and expand the exchange of information and other forms of mutual assistance between the courts of this State and those of other states concerned with the same child.

In reaching this view, we are influenced by the fact that when the Crittenden County suit was filed Texas was still the home state of Darlah as defined by the Uniform Child Custody Jurisdiction Act (Ark. Stat. Ann. § 27-2702(5)) and by the Parental Kidnapping Protection Act, six consecutive months not having expired preceding the time involved. Under the federal act jurisdiction is given the home state to the exclusion of other jurisdictional considerations. 28 USC 1738A(4).

We are not overlooking the finding in the decree that Arkansas has jurisdiction to determine custody under Ark. Stat. Ann. § 34-2703(a)(2) because it is in the best interest of the child that a court of this state assume jurisdiction since the child and her parents, or the child and at least one contestant, have “a significant connection” with this state, and there is “available in this state substantial evidence concerning the child’s present and future care, protection, training, and personal relationships.” But that provision, while broad, must be judiciously applied, and it should not be regarded as giving a court only recently involved an excuse to act precipitously, in an ex parte proceeding, by disregarding the remainder of the act, so plainly aimed at promoting cooperation between courts. Particularly is that true where, as here, Texas clearly remained the home state. In a similar circumstance the court in Bowden v. Bowden, 182 N.J.Sup. 307, 440 A.2d 1160 (1982), observed:

[§ 34-2706(a)] was designed to avoid jurisdictional “shouting matches,” and has been used successfully to accomplish that end. See William v. Michele, 99 Misc.2d 346, 416 N.Y.S.2d 477, 483 (Fam.Ct. 1979). The section is mandatory, i.e., the statute directs that, once informed, the court “shall stay the proceeding and communicate with the court in which the other proceeding is pending.” This the trial judge did not do. Cooperatively, the courts should attempt to reach agreement as to the more appropriate forum, with the ultimate aim of providing protection and control, in both states, to assure compliance with custody and visitation orders entered in one of them. Following a final judgment or decree containing specific terms for custody and visitation or joint custody as appropriate, the goal of the nonforum jurisdiction should be imposition of reciprocal rather than conflicting provisions.

Some guidance is to be found in Bonis v. Bonis, 420 So.2d 104 (C.A. Fla. 1982) where Florida and Colorado had competing interests in a child custody dispute. The Florida appeals court reversed the trial court for assuming jurisdiction on the basis of a “significant connection” to the child even though the father was found to have “snatched” the child from Florida, where a custody suit was pending, and to have returned to Colorado where a previous suit had been filed, though no service of process had. The Florida court said:

Four stated purposes of the UCCJA are to (1) avoid jurisdictional competition and conflict with courts of other states in matters of child custody; (2) promote cooperation with the courts of other states to the end that a custody decree is rendered in the state which can best decide the case in the interest of the child; (3) avoid relitigation of custody decisions of the other states; (4) make the law uniform with respect to child custody jurisdiction among states which have adopted the act. Those purposes are not served when a court, with knowledge that the subject matter of child custody is pending in another state, totally ignores the foreign proceeding and exercises jurisdiction over a child, who has been in the state for less than a month, for the purpose of making a permanent custody award. (Our italics).

Mrs. Norsworthy relies on Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985), where the Arkansas chancellor’s finding of jurisdiction was upheld despite the fact that the appellee wife and children had resided in Arkansas for less than the required time under the “home state” provision. The Court of Appeals noted that Arkansas had been the home of the wife until 1979 when she married the appellant in Louisiana, that when the parties separated she immediately returned to Arkansas with the children where she sought a divorce and custody after two months of renewed residency. The cases are distinguishable — -there was nothing pending in Louisiana when the Arkansas suit was tried and, hence, no request was made for Arkansas to communicate with a Louisiana court before determining which forum was appropriate. Nor do we find any reference in Pomraning to the Parental Kidnapping Protection Act, and presumably neither party cited it. As we have noted, under the Parental Kidnapping Protection Act, the home state has exclusive jurisdiction over the other considerations noted in Pomraning. See Child Custody and Visitation Law and Practice, McCahey, Kaufman, Krant and Zett, Vol. 1 (1986) § 4.06 [1][2][3].

We think, therefore, it was incumbent on the Arkansas court before proceeding to a final decree, to enter into direct communication with one or both District Courts in Texas to determine, in accordance with the act, which was the better forum to decide custody.

Appellant’s argument that he had made only a special appearance to object to jurisdiction is rejected. He sought affirmative relief in the Crittenden Chancery Court in the form of a stay of the proceedings so that courts of Texas and Arkansas can have direct communication in accordance with the Uniform Child Custody Jurisdiction Act. He cannot argue that by so doing he remained beyond the jurisdictional powers of the Crittenden Chancery Court. “This court has adopted the rule that any action on the part of the defendant, except to object to the jurisdiction, which recognizes the case as in court, will amount to a general appearance.” Payne v. Stockton, 147 Ark. 598, 229 S.W. 44 (1921).

Accordingly, we modify the provision of the decree pertaining to permanent custody and remand the case for further proceedings in accordance with the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act.

Modified and remanded.

       We note independently of the record that Harris County includes the city of Houston while Henderson County is adjacent to the City of Dallas.

       The record reflects that six weeks after Suzanne and Darlah left Texas, Lauren wrote Suzanne: “Although the miles may separate us, I have built a bridge of lovely memories. I would like to express my deepest appreciation and thanks for your years of patience, cheer, devotion, companionship, mother of our precious daughter, and most of all your friendship.” (Emphasis in the original).


text:
    BLACK AND BLACK OIL COMPANY v. SMITH DRILLING COMPANY, INC.
    86-63
    712 S.W.2d 901
    Supreme Court of Arkansas
    Opinion delivered July 14, 1986

      Steve R. Crane, for appellant.

      Bramblett & Pratt, by: Eugene D. Bramblett, for appellee.
   David Newbern, Justice.

The appellant, Black and Black Oil Company, (Black and Black), entered a contract with the appellee, Guy R. Smith Drilling Company, Inc., (Smith), by which Black and Black hired Smith to drill a well. After the drilling had begun, the drilling ceased because circulation of the drilling mud, which is necessary to the drilling operation, was lost. Another company, Dia-Log, was called to the scene to restore the lost circulation. Dia-Log sued Black and Black as well as Smith to collect the amount it had billed for the service it rendered. Black and Black claimed Smith was responsible to pay Dia-Log, and Smith claimed it was Black and Black’s responsibility. The trial court found the contract between Black and Black and Smith to have been ambiguous with respect to responsibility for Dia-Log’s bill and thus permitted parol evidence to ascertain the parties’ intent. Sitting without a jury, the court found the contract required that the operator, Black and Black, assume responsibility for Dia-Log’s bill. Black and Black contends the trial court erroneously reformed or modified the contract and that it was error to interpret the contract as requiring Black and Black to pay Dia-Log. We affirm.

The contract consisted of a bid letter which looked like this:

GUY R. SMITH DRILLING CO., INC.
P. O. Box 396
STEPHENS, ARKANSAS 71764
April 12, 1984
Black & Black Operators
Magnolia, Arkansas 71753

Gentlemen:

Enclosed please find our turnkey bid on your 4900 foot Smackover well in Section 14, Township 14 South, Range 19 West of Ouachita County, Arkansas:

* Furnish road, location and pits.
* Furnish water.
*Drill 7 %" hole to approximately 4900 feet.
*Furnish, set and cement 300 feet of 8 W surface casing.
* Furnish all mud and chemicals.
*Furnish Geolograph and catch samples as required. *Furnish and run Gearhart DIL Log.
* Furnish 24 hours rig time to run production casing or plug and abandon.
Turnkey for the above....................... $60,000.00
Rig time for any other services or the encounter of loss circulation will be at the rate of $175.00 per hour.
Optional - Furnish Minimum Density CDL-CNL-GR Log.................................... $3,858.00
Optional - Furnish 12 Side Wall Cores......... $2,040.00
Optional - Cut One 50 Foot Diamond Core.....$6,500.00
Optional - Attempt One Single Packer Drill Stem
Test ................................... $6,500.00
Sincerely,
Guy R. Smith Drilling Company, Inc.
RGS:dt
Approved and Accepted on this _day of_ 1984 By:

The appellant concedes it was proper for the trial court to take parol evidence with respect to the parties’ intent as expressed in the contract in view of the contract’s ambiguity. We agree. In a similar case, Murdock v. Reynolds, 180 Ark. 729, 22 S.W.2d 1007 (1929), we reversed the refusal of the trial court to allow parol evidence.

The ambiguity here is created by the use of the term “turnkey” to apply to everything “above,” which includes drilling to 4900 feet, and then using the term “rig time” to refer to the manner in which the operator, Black and Black, would be billed in the event of loss of circulation. The question becomes whether “turnkey” meant the driller, Smith, would supply whatever was necessary to reach 4900 feet and if so whether the reference to “rig time” for “any other services” created an exception to the “turnkey” portion of the agreement.

The appellant’s argument is that the trial court accepted the parol evidence for the purpose of modifying the contract or adding terms to it rather than interpreting it. While the trial court misspoke at one point, saying he would permit parol evidence to “modify” the contract, his letter order on which the judgment was based makes it clear he was following our decision in Murdock v. Reynolds, supra, and allowing “parol testimony to explain the customary, local meaning of the word [rig time].” The court’s letter order further recited that “[e]ach expert testified unequivocally, that upon consideration of the contract, and the term ‘rig time,’ that the operator was responsible for third party services.”

We agree with the appellee’s argument that in accepting parol evidence to determine the meaning of the contract the trial court was making a determination of fact. C & A Construction Co. v. Benning Construction Co., 256 Ark. 621, 509 S.W.2d 302 (1974); Fort Smith Appliance & Service Co. v. Smith, 218 Ark. 411, 236 S.W.2d 583 (1951); Don Gilstrap Builders, Inc. v. Jackson, 269 Ark. 876, 601 S.W.2d 270 (Ark. App. 1980). We will not reverse a factual determination made by the court sitting without a jury unless we can say it was clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a); McDermott v. Strauss, 283 Ark. 444, 678 S.W.2d 334 (1984); Wasp Oil, Inc. v. Arkansas Oil and Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983). While the appellant presented an expert who contradicted, to an extent, the ones presented by the appellee, we cannot say the court’s determination was clearly erroneous.

Affirmed.

Holt, C.J., not participating.


text:
    Michael SELBY v. Robert N. BURGESS
    85-261
    712 S.W.2d 898
    Supreme Court of Arkansas
    Opinion delivered July 14, 1986

      Perroni & Rauls, P.A., by: Samuel A. Perroni, for appellant.

      Gary Eubanks & Associates, by: Gary L. Eubanks, for appellee.
   David Newbern, Justice.

This is a slander case in which the trial court correctly found that a client, the appellee Robert Burgess, was not liable for statements made by his attorney in the course of investigating the client’s claim. We must, however, reverse the summary judgment in favor of Burgess because there were allegations that Burgess personally slandered the appellant, Dr. Selby, and the summary judgment motion and its supporting documents did not show the lack of a remaining genuine issue of material fact as to those allegations.

Dr. Michael Selby, is an obstetrician-gynecologist. Melinda Burgess was a patient of Dr. Selby while she was married to appellee, Robert Burgess. Burgess retained attorney Gary Eu-banks to represent him in bringing an alienation of affections claim against Dr. Selby, claiming that Dr. Selby had caused Melinda Burgess, who apparently later married Dr. Selby, to abandon Robert Burgess. The complaint alleged that Dr. Selby had induced Melinda Burgess to undergo an abortion and had thereafter impregnated her himself.

Dr. Selby counterclaimed contending that Burgess, “personally and through his duly authorized agent, Gary Eubanks,” slandered him by stating to third persons that Dr. Selby had performed an unnecessary abortion on Melinda Burgess.

The alienation of affections claim resulted in a judgment in favor of Dr. Selby. Burgess moved for a summary judgment on the slander claim, arguing that any statements Eubanks might have made to third persons in the course of investigating the alienation of affections claim were true as well as privileged. The argument submitted with the motion, however, did not address the part of the counterclaim stating that Burgess had “personally” slandered Dr. Selby.

In support of the motion for summary judgment, Burgess’s brief in the trial court referred to these documents:

(1) Depositions of Joyce Henderson and Margaret Coley in which they testified that they were medical records custodians and that, in attempting to obtain records of Dr. Selby’s treatment of Melinda Burgess, Eubanks had referred to an “abortion.”
(2) The deposition of Dr. Selby confirming that he had performed a “D & C” on Melinda Burgess before which she had been pregnant and after which she had not.
(3) The deposition of Melinda Burgess Selby confirming that her pregnancy had been terminated but declining to characterize the procedure by which it was done as an “abortion.”

In response to the motion, Dr. Selby submitted:

(1) The deposition of Sam Winstead who testified that he thought Burgess had told him that Dr. Selby had performed an abortion on Melinda Burgess.
(2) The affidavit of Melinda Burgess Selby stating that Burgess told her he intended to ruin Dr. Selby’s medical practice.
(3) The depositions of Margaret Coley and Joyce Henderson.

The question to be answered in determining whether a summary judgment was correctly granted is whether the trial court was correct in concluding there remained no genuine issue of material fact and the moving party was entitled to judgment as a matter of law based on the pleadings, discovery documents, admissions and affidavits, if any, showing what the proof will be. Ark. R. Civ. P. 56(c).

1. The Attorney’s Privilege

The Restatement of Torts (Second) § 586 provides:

An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.

The appellee cites many cases from many jurisdictions holding consistently with § 586. In response, Dr. Selby cites only our cases holding that we are circumspect as to summary judgments because they are drastic.

We adopted the principle of § 586 in Pogue v. Cooper, 284 Ark. 202, 680 S.W.2d 698 (1984). There we held that absolute privilege attached to allegations made by an attorney in a pleading filed with the court, as long as the statements alleged to be defamatory were relevant and pertinent to the issues in the case. We relied heavily on our earlier decision of Mauney v. Millar, 142 Ark. 500, 219 S.W. 1032 (1920), in which we recognized the absolute privilege of an attorney to make statements in pleadings regardless of their truth or the existence of actual malice on the part of the attorney so long as the statements were relevant and pertinent to the pleadings.

We have no difficulty extending the privilege to statements by an attorney made, as § 586 says, “preliminary to a proposed judicial proceeding.” The section obviously covers communications made during investigation of a claim. Comment e. to § 5 8 6 is as follows:

As to communications preliminary to a proposed judicial proceeding the rule stated in this Section applies only when the communication has some relation to a proceeding that is contemplated in good faith and under serious consideration. The bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered.

Other jurisdictions have held the privilege extends to such communications. See, e.g., Sriberg v. Raymond, 345 N.E.2d 882 (Mass. 1976); Theiss v. Scherer, 396 F.2d 646 (6th Cir. 1968) (applying Ohio law); Johnston v. Cartwright, 355 F.2d 32 (8th Cir. 1966) (applying Iowa law). See also Friedman v. Alexander, 433 N.Y.S. 2d 627 (App. Div. 1980).

Although the privilege is absolute where it applies, we consider it to be a privilege narrowed closely by the “relevancy” and “pertinency” requirements, and we note that while the privilege will prohibit an attorney from being subject to litigation it will not make him immune from professional discipline, see Theiss v. Scherer, supra, when it is appropriate. We make no suggestion that any professional discipline is called for in this case.

It was correct for the court to find no liability with respect to the allegations of statements made by Gary Eubanks, as the discovery documents showed his publication of the allegedly slanderous statement occurred preliminary to or in the course of litigation, and that the statements he allegedly made were relevant and pertinent to that litigation.

2. The Remainder of the Claim

In moving for summary judgment, in arguing the motion to the trial court, and in arguing the propriety of the summary judgment in his brief before us, Burgess gave no reason to ignore the allegation that he personally slandered Dr. Selby.

The appellant, Dr. Selby, argues that in finding a summary judgment proper with respect to the claim against Eubanks, the court overlooked the fact that Burgess was alleged to have “personally” slandered him. None of the proof to which the summary judgment motion referred dealt with the claim against Burgess. The testimony of Sam Winstead which was submitted in response to the motion tended to support the claim. Thus, we find the summary judgment to have been entered erroneously.

Reversed and remanded.

Holt, C.J., not participating.