author: Joann C. Maxey, Special Justice. David Newbern, Justice,

text:
    Melissa KNOWLTON v. Harry WARD
    93-1170
    889 S.W.2d 721
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994
    [Rehearing denied January 17, 1995.]

      J. Fred Hart, for appellant.

      Fred H. Harrison, General Counsel for the University of Arkansas; and Winston Bryant, Att’y Gen., by: Jeffrey A. Bell, Deputy Att’y Gen., for appellee.

      Brown, J., not participating.

   Joann C. Maxey, Special Justice.

Appellant Melissa Knowlton filed an illegal exaction suit against Dr. Harry Ward, as chancellor of the University of Arkansas School of Medical Science (UAMS), and the Arkansas Genetics Program (AGP), which is a part of UAMS. In her suit, Knowlton maintained that the AGP performed abortions in violation of Amendment 68 of the Arkansas Constitution and asked the trial court to enjoin its operation. Further, Knowlton asked the trial court to construe the term “mother’s life” as expressed in Amendment 68.

Knowlton’s action was the second of three lawsuits involving Amendment 68 that were filed against UAMS. Because all three cases were eventually consolidated for trial, it is necessary to discuss the history of the proceedings involving these cases in order to address properly the legal issues raised by Knowlton in her appeal.

The first of the three lawsuits, all of which were filed as illegal exaction suits, was Forbes v. Ward. The Forbes complaint, which was filed on May 24, 1991, alleged that UAMS, as a recipient of public funds, was prohibited by Amendment 68 from performing any abortions other than abortions required to save the life of the mother regardless of whether the patient or a third party paid for the actual cost of the abortion. The gravamen of Forbes’ argument was that since UAMS receives public funding any service performed at that institution is paid either in part or in whole by public funds.

On June 28, 1991 the trial court, after a hearing, issued a preliminary injunction, which essentially prohibited UAMS from performing abortions other than to save the life of the mother, unless the particular patient could pay for the cost of the abortion in advance or furnish sufficient guarantee of payment by a third-party provider.

Approximately a month and a half later, on August 8, 1991, Knowlton and the Unborn Child Amendment Committee (UCAC) filed their complaints against UAMS. The UCAC plaintiffs, who have also been referred to throughout the proceedings as the “Rutherford plaintiffs,” made allegations and requested relief similar to the allegations set forth and relief requested by Forbes. That is, the Unborn Child Amendment Committee also alleged that UAMS, as a recipient of public funds, was prohibited by Amendment 68 from performing any abortions other than abortions required to save the life of the mother, regardless of whether the patient or a third party paid for the actual cost of the abortion.

On August 14, 1991, UAMS filed a motion for partial summary judgment, alleging that AGP was not a proper party, because the program did not perform any abortions, and asked that AGP be dismissed. On February 19, 1992, the trial court granted UAMS’s motion for partial summary judgment and dismissed AGP as a party. Knowlton filed a motion for reconsideration, which was denied on March 24, 1992. The decision for partial summary judgment was appealed to this court in case No. 92-800. On September 14, 1992, Knowlton’s appeal of the partial summary judgment was dismissed as being premature.

On December 23, 1992, Knowlton was consolidated with Forbes v. Ward and Unborn Child Amendment Committee v. Ward, et al, these later two cases having been consolidated earlier by an agreed order. By letter dated March 22, 1993, the trial court directed the parties to have all pleadings filed no later than June 7, 1993 and advised them that a trial would be held on June 18, 1993 for any issues still outstanding.

Prior to the June 18, 1993 trial date, UAMS and UCAC filed cross motions for summary judgment with regard to the issue of whether UAMS, as a recipient of public funds, was prohibited by Amendment 68 from performing any abortions other than to save the life of a mother regardless of whether the patient or a third party paid for the actual cost of the abortion. UAMS and UCAC stipulated that there were no genuine issues of material fact and that the suit brought by UCAC could be decided by summary judgment motions.

A trial was held on June 18, 1993, and on June 30, 1993, the court issued an order in which it adopted the preliminary order and made it a permanent injunction. Although the trial court issued a permanent injunction against UAMS that placed limitations on the abortions that could be performed at UAMS, the trial court did not accept the more expansive interpretation of Amendment 68 that was advanced by the Unborn Child Amendment Committee. This less restrictive reading of Amendment 68 allowed UAMS to continue to perform abortions for purposes other than to preserve the life of the mother provided the abortions were paid for by the patient or a third party provider.

As part of its June 30, 1993 order, the trial court also adopted its order of March 24, 1992, which dismissed Knowlton’s allegations against the AGP. Further, the court dismissed that part of Knowlton’s complaint seeking to have the court define the term “mother’s life” on the basis that Knowlton had failed to present a controversy for the court to determine.

From the chancellor’s order of June 30, 1993, appellant Knowlton appeals the following issues: (1) Whether the trial court erred by granting partial summary judgment in favor of UAMS by dismissing AGP as a party to the lawsuit; (2) Whether the trial court erred by refusing to allow the appellant to adduce testimony concerning the term “mother’s life;” and (3) Whether the trial court erred by denying the Rutherford (UCAC) Plaintiffs’ motion for summary judgment. We will discuss these issues in order.

(1) Dismissal of AGP as a party.

Rule 56 of the Arkansas Rules of Civil Procedure provides:

[Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavit, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Rule 56(e) further provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate shall be entered against him.

The standard by which summary judgment motions are to be granted by the trial court and then reviewed on appeal was expressed in Dodds v. Hanover Insurance Company, 317 Ark. 563, 880 S.W.2d 311 (1994), a recent decision by this court.

Summary judgment is a remedy that should be granted only when it is clear that there is no genuine issue of material fact to be litigated. Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994). On appellate review, this court must only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leaves a material question of fact unanswered. Reynolds v. Shelter Mutual Ins. Co. 313 Ark. 145, 852 S.W.2d 799 (1993). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Wyatt, 313 Ark. 546. Only when the movant makes a prima facie showing of entitlement does the burden shift, and then the respondent must meet proof with proof by showing a genuine issue as to a material fact. Id.

In seeking summary judgment, UAMS maintained that the AGP did not perform abortions and attached the affidavit of Dr. Chris Cunniff, a codirector of the AGP in support of this assertion. In his affidavit, Cunniff attested that the purpose of the AGP is to provide medical care in support of individuals affected with a wide variety of genetic disorders and birth defects and to inform families who have, or are at risk to have, a pregnancy that is at quantifiable risk of an adverse outcome.” O.R. 15. Cunniff further stated that AGP does not perform abortions but does provide “testing, diagnosis, and counseling to families during the preconceptional, prenatal and postnatal periods.” O.R. 15. The affidavit and accompanying documents go on to specify the particular tests and counseling done through AGP.

Although Knowlton specifically alleged in her complaint that the AGP was operated for the sole purpose of “aborting disabled, unborn children” and “for a purpose other than for the preservation of the life of the mother,” Knowlton responded to the motion by merely alleging that there were material facts in dispute and attached various affidavits and materials showing that non-therapeutic testing was performed at AGP and that some of the patients who had had testing performed at AGP had subsequently had abortions performed at UAMS. However, none of the affidavits refuted the affidavit of Dr. Cunniff or supported Knowlton’s allegation that AGP either performed abortions, existed solely for the purpose of aborting defective fetuses or paid for any abortions performed at some other location.

In granting UAMS’s motion for partial summary judgment, the trial court accepted as true the general premise advanced by Knowlton that not all of the tests and series of tests performed by AGP have therapeutic value. The court concluded that even if Knowlton’s premise were true it did not affect the outcome of the motion because Knowlton’s allegations did not present a “material issue of fact” regarding whether abortions were being performed at AGP or were being paid for by AGP.

The thrust of Knowlton’s argument before the trial court, as well as her argument before this court, is that Amendment 68 not only prohibits the use of public funds to pay for the performance of abortions for a purpose other than to save the life of the mother, but it also prohibits the use of public funds to pay for any activity that might further or advance the performance of abortions. Thus, in order for us to determine whether summary judgment was appropriately granted we must first determine what activity is prohibited by Amendment 68, the relevant portions being sections 1 and 2.

Section 1 of Amendment 68 proscribes the use of public funds to “pay for any abortion.” In construing the meaning of this provision we apply the same rules governing the construction of legislative statutes. Gazaway v. Greene County Equalization Board, 314 Ark. 569, 864 S.W.2d 233 (1993); Faubus v. Kinney, 239 Ark. 443, 389 S.W.2d 887 (1965). The fundamental rule is that the words of the constitution or statute should ordinarily be given their obvious and natural meaning. Gipson v. Maner and Gibson v. Young, 225 Ark. 976, 980, 287 S.W.2d 467 (1956). If the language used in a constitutional provision is plain and unambiguous, the court should not seek other aides of interpretation in determining the intent of the framers and voters. Ellison v. Oliver, 147 Ark. 252, 264, 227 S.W. 586 (1921).

It hardly seems possible that any other language could be used to explain more plainly or unambiguously the purpose or meaning of the phrase “to pay for any abortion.” Very simply, in order for AGP, or any other entity, to be in violation of Section 1 of Amendment 68, the following proof would have to be presented: (1) Abortions were performed at AGP that were paid for with public funds; or (2) AGP paid for, with public funds, abortions that were performed elsewhere. The plain and unambiguous meaning of this provision does not prohibit the “testing, diagnosis, and counseling to families during the preconceptional, prenatal and postnatal periods” that is performed at AGP.

We turn to Section 2 of Amendment 68, which states that it is the public policy of this state to “protect the life of every unborn child from conception until birth.” Knowlton argues that this section of Amendment 68 is a self-executing provision that prohibits the State from engaging in any activity that furthers or advances abortions. We disagree.

In order for a constitutional provision to be self-executing, there must be language in the provision indicating that it “is intended as a present enactment, complete in itself as definitive legislation, or contemplates subsequent legislation to carry it into effect.” Myhand v. Erwin, 231 Ark. 444, 452, 330 S.W.2d 68 (1959), citing 16 C.J.S. §38, Const. Law, p. 146. It is self-executing if:

it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.

Cooley’s Const. Law (7th Ed.), O. 121. Section 2 of Amendment 68 merely expresses the public policy of the state. It does not provide any means by which the policy is to be effectuated and therefore cannot be considered a self-executing provision. In particular, it cannot be construed as prohibiting the kind of activity suggested by Knowlton.

Having set these parameters with regard to the meaning of Amendment 68, we must now decide whether the record evidence reflects that there was a fact issue as to whether abortions either were being performed or paid for by AGP.

As stated previously, UAMS presented, through its motion, evidence that the purpose and function of the AGP is to assist women and families prior to conception, through pregnancy, and after pregnancy in' identifying and coping with the risk of genetic birth defects. It further presented evidence that while some of AGP patients ultimately decide to terminate their pregnancy, AGP neither performs nor pays for those abortions. By presenting this evidence, UAMS made a prima facie showing of entitlement to summary judgment and shifted to Knowlton the burden of presenting proof. However, Knowlton failed to meet proof with proof as required by Rule 56 (e) and failed to show that there were genuine issues of material fact. Accordingly, the trial court’s granting of partial summary judgment dismissing the Arkansas Genetics Program is affirmed.

(2) Testimony concerning term “mother’s life.”

Knowlton maintains that the trial court erred by failing to permit Knowlton to adduce evidence as to the definition of the term “mother’s life for purposes of Amendment 68.” Knowlton misstates the events that occurred at trial. Contrary to Knowlton’s posture that the trial court refused to allow her to present testimony to establish her case, the record is replete with the efforts of the trial court requesting counsel for Knowlton to put on evidence concerning any controversy or existence of an ambiguity with the term “mother’s life.”

The following excerpts from the trial transcript are illustrative of the trial court’s repeated efforts to have Knowlton present evidence:

Mr. Hart: Judge, the only other issue that I see is the question of the life of the mother. . . .

S.R. p. 238.

The Court: Is there a controversy?
Mr. Hart: I think potentially there is, Judge.
The Court: Well, is there a controversy?
Mr. Hart: Yes, I think there is.
The Court: Well, put on your proof.
Mr. Hart: Okay.
The Court: Call your first witness.
Mr. Hart: Well, Judge, my understanding was that we couldn’t — well, 1 don’t have the witnesses here today.

S.R. p. 239.

The Court: Well, put on your proof, Mr. Hart.
Mr. Hart: Judge, I’m sorry. I’m not following you, that— the proof that it is in controversy?
The Court: We just had two motions for summary judgment stating that there were no material issues of fact on the question of illegal exaction regarding public funding.
Mr. Hart: Yes, ma’am.
The Court: That was the cause of action, no material issues of fact, and it was a question of law. You have not filed a motion for summary judgment, and you have specifically stated that it is a question of fact and not ripe for summary judgment. So we are here on a trial on that issue, and you’re going to have to show me that there is a problem, a controversy, regarding what that means.
Mr. Hart: So when you say put on proof that there is a controversy—
The Court: Evidence.
Mr. Hart: Okay.
The Court: This is a trial.
Mr. Hart: We have nothing, Judge, other than what we’ve already proffered to the court in terms of the question that the life of the mother—
The Court: Well, what have you proffered?
Mr. Hart: Judge, we have responded to both motions for summary judgment by pointing out that—
The Court: Mr. Hart, that summary judgment motion was specifically on the public funding issue.
Mr. Hart: Yes, ma’am.
The Court: And you specifically stated in your brief that— the other issue was not ripe for summary judgment and that it was a question of fact, and you have filed no other motions regarding this particular issue.
Mr. Hart: Judge, it is a question — there is a genuine issue of material fact.
The Court: Well, put it on.
Mr. Hart: Well, Judge, as far as what the controversy is, we have nothing other than what I’ve already said, if that— if I understand the court correctly.
The Court: I want you to put on your case, Mr. Hart. Put on your case.
Mr. Hart: Judge, we have no case aside from what I have already said, that there is a genuine issue of material fact and—

S.R. 242-243.

Mr. Hart: Judge, I’d ask that the order include this court’s specific ruling on its refusal to take testimony on the definition of the life of a mother and—
The Court: I did not refuse to take testimony, Mr. Hart.
Mr. Hart: Well, whatever it—
The Court: I would have loved to have had some testimony.
Mr. Hart: Judge, whatever it was the court did I’d like to have it reflected in the order, please.
The Court: There’s no question about it. If you’ll reflect that there was no evidence presented to determine that there was any controversy or ambiguity in the term “mother’s life,” and that the court specifically did not rule on a definition of that term, since it was not properly presented to this court.

S.R. 277-278.

From the colloquy above, the reader can readily see the trial court did not refuse Knowlton the opportunity to put on testimony to establish her case. In fact, the trial court urged Knowlton to do so but Knowlton failed to present evidence and to develop a record on this issue. Knowlton failed to present a justiciable controversy for the trial court to decide. She cannot complain on appeal that the chancellor erred.

Moreover, this court will not consider on appeal an issue that was not fully developed at the trial level. Hastings v. Planters and Stockmen Bank, 307 Ark. 34, 818 S.W.2d 239 (1991).

Accordingly, the chancellor’s decision on this issue is affirmed.

(3) The Rutherford (UCAC) Plaintiffs’ Motion for Summary Judgment.

The final issue raised by Knowlton is that the court erred in refusing to grant the Rutherford (UCAC) plaintiffs’ motion for partial summary judgment. We dismiss Knowlton’s appeal as to this issue for two reasons.

First, although Knowlton was consolidated with UCAC and Forbes for trial purposes, Knowlton did not become a party to the UCAC lawsuit. Consolidation of cases “does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another.” Johnson v. Manhattan Ry. Co., 53 S.Ct. 721, 727, 289 U.S. 479, 496-497, 77 L.Ed. 1331 (1933). See also St. Louis Southwestern Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977); State Life Ins. Co. v. Goodrum, 189 Ark. 509, 74 S.W.2d 230 (1934). Since Knowlton was not a party to the UCAC lawsuit and did not join in UCAC’s motion for summary judgment, Knowlton does not have standing to raise on appeal an issue that she did not present at trial.

Second, even if Knowlton had joined in UCAC’s motion for summary judgment, this court has stayed the proceedings of the UCAC appeal by its order dated October 3, 1994. It would be inappropriate to address through this decision issues that are pending in the UCAC appeal.

The trial court’s decision granting the UAMS motion for partial summary judgment with respect to the dismissal of any allegations against AGP and dismissing Knowlton’s request to have “mother’s life” defined is affirmed. Knowlton’s appeal of the trial court’s denial of UCAC’s motion for summary judgment is dismissed.

Affirmed in part. Appeal dismissed in part.

Dudley and Newbern, JJ., dissent.

Brown, J., not participating.

David Newbern, Justice,

dissenting. With some temerity, recognizing that consistency is sometimes said to be the hobgoblin of small minds, I suggest we should remember what we did two months ago. In The Unborn Child Amendment Comm. v. Ward, 318 Ark. 165, 883 S.W.2d 817 (1994), we postponed interpretation of Amendment 68 because a United States District Court had declared it “void,” sort of, and that decision was on appeal. As was noted in the dissenting opinion, the state court injunction we were asked to review was not necessarily inconsistent with that of the federal court.

Today we barge ahead and interpret Amendment 68 because “neither party filed a motion for stay.” Are we saying the federal court decision has somehow lost its vitality because the parties in last month’s case asked us for a stay but the ones now before us have not? We should have answered the questions asked about Amendment 68 last month. Having declined to do so then, however, we should decline to do so now.

I respectfully dissent.

       Amendment 68 of the Arkansas Constitution states as follows:
      Section 1. Public Funding. No public funds may be used to pay for any abortion except to save a mother’s life.
      Section 2. Public Policy. The public policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the federal Constitution.
      Section 3. Effect of Amendment. This amendment will not affect contraceptives or require an appropriation of public funds.

      For purposes of clarity the defendants in all three lawsuits, as well as in the Knowlton appeal, are referred to as UAMS. The Arkansas Genetics Program is referred to as AGP.

      References to the record filed as part of the original appeal are referred to as “O.R.” References to the record that was filed with this appeal are referred to as “S.R.”

       The Unborn Child Amendment Committee appealed the decision of the trial court. Their appeal focused on that part of the trial court’s decision that allowed abortions to be performed at UAMS provided they were paid for in advance by a patient or there was a sufficient guarantee of payment by a third party provider. At issue in that appeal is the meaning of “public funds” as used in Amendment 68.
      Subsequent to the appeal being filed by the Unborn Child Amendment Committee, a federal district court in Little Rock Family Planning Services et al. v. Thomas Dalton, 1994 W.L. 386796 at 14 (E.D. Ark.) issued an order holding that Amendment 68 was unconstitutional. As a result of the federal court’s ruling, UAMS filed a motion to stay the chancellor’s injunction pending the appeal of the federal district court’s decision.
      This court issued a decision on October 3, 1994 granting the appellees’ motion to stay the effect of the Pulaski County Chancery Court’s June 18, 1993, order and permanent injunction pending resolution of the appeal of the decision in Little Rock Family Planning Services et al. v. Thomas Dalton. This court also stayed further proceedings on the UCAC appeal.
      In the instant case, neither party filed a motion for stay. As a result, where we did not reach the merits in the UCAC appeal, we do so here.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Ronald Wade GAMMEL v. STATE of Arkansas
    CR 94-1214
    890 S.W.2d 240
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      C.S. “Chuck” Gibson II, for appellant.
    No response.
   Per Curiam.

Ronald Wade Gammel was accused of drug offenses. His motion to dismiss for lack of a speedy trial was denied, and he filed a notice of appeal and attempted to lodge the record with this Court. The record eventually was filed after some difficulty concerning proper form.

Mr. Gammel now seeks a writ of certiorari to require the court reporter to put the record in proper form and assure that all necessary portions of the trial proceedings to date have been included. In his petition, he characterizes the proceeding here as “an interlocutory appeal pursuant to Rule 28.1(d), Ark. R. Crim. P. (petition for writ of prohibition).”

There is no authority for an interlocutory appeal of the denial of a motion for speedy trial. Assuming the writ of prohibition is the remedy sought, we have yet to receive a petition for such a writ, thus the filing of the record is premature.

In view of the circumstances, including Mr. Gammel’s counsel’s doubt as to the completeness and proper form of the record he has submitted, we deny the writ of certiorari and instruct the Clerk to return the record to Mr. Gammel.


text:
    Wilbert JACKSON v. STATE of Arkansas
    CA CR 90-45
    887 S.W.2d 310
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      Appellant, pro se.
    No response.
   Per Curiam.

Petitioner Wilbert Jackson was found guilty in 1989 of two counts of theft of property and sentenced as a habitual offender to an aggregate term of 26 years imprisonment. The court of appeals affirmed. Jackson v. State, CACR 90-45 (November 14, 1990). Petitioner, who contends that he is indigent, now asks this court to order the attorney who represented him on appeal and another attorney to provide him with the transcript of the trial and all other “pertinent material” in their possession concerning the case. As grounds for the request, petitioner states only that the material would help him prepare an appeal.

The motion is denied. Petitioner has offered nothing to establish that either attorney is in possession of material to which petitioner is entitled or that this court has a legal basis to order an attorney to release material in his or her file to a former client.

Motion denied.

       Even though the Arkansas Court of Appeals affirmed the judgment of conviction, this court rules on all motions for transcript once a case has been affirmed on appeal because such motions are considered as requests for post-conviction relief under Criminal Procedure Rule 37. Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981). The docket number of the Arkansas Court of Appeals is retained for clerical purposes.


text:
    Joseph MINER and Ronald Harden v. Brenda FURMAN, Melba Smith-Woodard, Records Supervisor, and Warden J. D. Reed
    94-874
    887 S.W.2d 310
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      Appellant, pro se.
    No response.
   Per Curiam.

Appellants Joseph Miner and Ronald Harden, who are in the custody of the Arkansas Department of Correction as a result of multiple felony convictions, filed a joint pro se petition for writ of mandamus and declaratory judgment against persons employed in the Records Office of the Arkansas Department of Correction and a prison warden, contending that their parole eligibility dates had been miscalculated. The petition was denied, and the record has been lodged in this court on appeal. Appellants now seek leave to file a handwritten appellants’ brief and an extension of time to file the brief. They further state that they are unable to provide seventeen copies of the appellants’ brief as required by our rules.

There is no absolute right to file a handwritten brief on appeal. See Green v. State, 277 Ark. 129, 639 S.W.2d 512 (1982). We have held, however, that if the pro se appellant makes a substantial showing that he is entitled to relief and that he does not have access to a typewriter, we will accept a legible handwritten brief. Glick v. Lockhart, 288 Ark. 417, 706 S.W.2d 178 (1986); see also Howard v. Lockhart, 300 Ark. 144, 777 S.W.2d 223 (1989) and Hayes v. Lockhart, 288 Ark. 419, 706 S.W.2d 179 (1986). We have adopted a similar practice with respect to appointment of counsel in civil and pro se post-conviction criminal appeals. See Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986).

As the appellants here state in conclusory fashion that the appeal has merit with no showing that there is substantial merit to the appeal, the request to file a handwritten brief is denied. The date for filing the appellant’s brief is extended to thirty days from the date of this opinion.

Motion denied in part and granted in part.


text:
    Jerry SMITH v. STATE of Arkansas
    CR 94-1128
    889 S.W.2d 29
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      J. G. Molleston, substituted counsel for appellant.
    No response.
   Per Curiam.

Appellant Jerry Smith, by his attorney, J.G. Molleston, has moved for a rule on the clerk. He alleges that a judgment of conviction for DWI, first offense, was entered on September 16, 1993. He further alleges that he instructed his trial counsel, Robert Witterstaetter, to file notice of appeal, which counsel timely filed on October 12, 1993. Appellant also alleges that Mr. Witterstaetter did not lodge the record in this Court or ask to be relieved as attorney of record. Attorney Witterstaetter does not dispute the fact that he filed the notice of appeal but failed to lodge the record on appeal or withdraw as attorney on appeal. Appellant asks that J.G. Molleston be substituted for Robert Witterstaetter in this appeal. We take this opportunity to reiterate that if Mr. Witterstaetter had not desired to represent the appellant in this appeal, for whatever reason, he was obliged to seek permission to withdraw. Bogan v. State, 293 Ark. 370, 738 S.W.2d 94 (1987). In any event, an attorney ethically or lawfully may not undertake an appeal and abandon that appeal merely because he or she is not paid. If the law were otherwise, this court would be confronted with continuing problems like the one illustrated here — appellants in the middle of an appeal and this court in search of the reasons why months and even years later. Once Mr. Witterstaetter filed appellant’s appeal, he was obligated to represent the appellant throughout the appeal unless permitted by the trial court or the supreme court to withdraw. Mr. Witterstaetter never sought permission to withdraw, and compounded that error by failing to lodge the record in this court. Now, over one year later, Mr. J.G. Molleston requests he be entered as substituted counsel for Mr. Witterstaetter, so Molleston can file a transcript with this court’s clerk and complete appellant’s appeal.

Mr. Witterstaetter clearly failed to comply with this court’s rules and precedent, and his name should be referred to the Professional Conduct Committee for appropriate sanctions. Otherwise, Mr. Molleston’s motions to be substituted as named counsel and for rule on the clerk should be, and are hereby, granted.


text:
    Mark Thomas STOUT v. STATE of Arkansas
    CR 94-1276
    887 S.W.2d 309
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      A. Wayne Davis, for appellant.
    No response.
   Per Curiam.

Mark Thomas Stout, by his attorney, A. Wayne Davis, has filed a motion for a rule on the clerk. His attorney, A. Wayne Davis, admits by motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is, therefore, granted.

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


text:
    Michael James TANNER v. STATE of Arkansas
    CR 94-1261
    887 S.W.2d 311
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      Hatfield & Lassiter, by: Jack T. Lassiter; and Kenneth E. Suggs, for appellant.
    No response.
   Per Curiam.

On August 12, 1994, appellant was convicted of two felony counts and sentenced to twenty-four years. On August 22, 1994, appellant filed a motion for new trial. A hearing was held on appellant’s motion on August 29, 1994, at which time the trial court orally denied the motion. No written order denying the motion was entered. Nonetheless, appellant filed his notice of appeal on the same date as the hearing. Appellant has now tendered his transcript with the supreme court clerk, but the clerk rejected it because appellant’s notice of appeal was invalid since the court’s written order denying a new trial had never been filed or entered. The clerk acted in accordance with our rules and case law. See Nance v. State, opinion delivered on November 21, 1994.

Appellant’s trial attorney shall file within thirty days from the date of this per curiam a motion in this case accepting full responsibility for not timely filing the notice of appeal and transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

       Since trial and the filing of appellant’s motion for new trial, new counsel has been added for appeal purposes.


text:
    IN THE MATTER OF CONTEMPT OF COUNSEL, A. Wayne DAVIS
    887 S.W.2d 311
    Supreme Court of Arkansas
    Opinion delivered December 6, 1994
   Per Curiam.

Ivan Floyd Pipkin was convicted in the Stone County Circuit Court and appealed the judgment of conviction on May 17, 1994. On June 24, 1994, Pipkin’s attorney, A. Wayne Davis requested a seven-day clerk’s extension making his brief due on July 5, 1994.

On June 27, 1994, Mr. Davis, by letter, confirmed the clerk’s extension and acknowledged that the appellant’s brief would be due on Tuesday, July 5, 1994. On October 27, 1994, our clerk, Mr. Steen, mailed a letter to Mr. Davis advising him that the records indicated that a brief had not been filed or tendered in the appellant’s behalf, nor had a further motion for an extension of time been granted. In addition, the clerk called for a response to his letter, to which Mr. Davis has not replied. Mr. Davis has yet to file a brief on behalf of Mr. Pipkin.

Counsel, A. Wayne Davis, appeared before the court on Monday, December 5, 1994, and entered his plea of not guilty to the charge of contempt.

It is necessary for a hearing to be held to determine whether or not counsel has a meritorious defense to the charge of failing to file his brief in a timely manner. We appoint the Honorable George Cracraft as a Master to conduct the hearing. Counsel will have the burden of proving, by a preponderance of the evidence, that he has meritorious reasons for not filing Mr. Pipkin’s brief when due as prescribed by the Rules of Supreme Court, Rule 11.

The Master shall conduct a hearing and make findings of fact. Upon receiving the findings of fact from the Master, we will make a decision as to whether or not counsel, A. Wayne Davis should be held in contempt.


text:
    Ivan Floyd PIPKIN v. STATE of Arkansas
    CR 94-515
    887 S.W.2d 309
    Supreme Court of Arkansas
    Opinion delivered November 21, 1994
   Per Curiam.

On May 17, 1994, Ivan Floyd Pipkin appealed his conviction in the Stone County Circuit Court, Case No. 91-36, and lodged the record of trial in this court. On June 24, Pip-kin’s attorney, A. Wayne Davis, Little Rock, Arkansas, requested a seven-day clerk’s extension, making his brief due on July 5, 1994.

On June 27, 1994, Mr. Davis, by letter, confirmed the clerk’s extension and acknowledged that the appellant’s brief would be due on Tuesday, July 5, 1994. On October 27, 1994, our clerk, Mr. Steen, mailed a letter to Mr. Davis advising him that the records indicated that a brief had not been filed or tendered in the appellant’s behalf, nor had a further motion for an extension of time been granted. In addition, the clerk called-for a response to his letter, to which Mr. Davis has not replied.

For these reasons, we set a hearing date on Monday, December 5, 1994, at 9:00 a.m., and direct Pipkin’s counsel, A. Wayne Davis, to appear and show cause why he should not be held in contempt for failing to file the abstract and brief in this cause.


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

text:
    McDONALD’S CORPORATION v. Marlin HAWKINS and Marvine Hawkins
    93-912
    888 S.W.2d 649
    Supreme Court of Arkansas
    Opinion delivered December 12, 1994
    [Supplemental Opinion on Denial of Rehearing March 6, 1995]

      Boswell, Tucker & Brewster, by: Dennis J. Davis, for appellant.

      Mark S. Cambiano, for appellees.

       Dudley and Newborn, JJ., concur; Glaze and Roaf, JJ., not participating.

   Jack Holt, Jr., Chief Justice.

The present case is the second appeal in this matter. In McDonald’s Corp. v. Hawkins, 315 Ark. 487, 868 S.W.2d 78 (1994), we observed that the chancellor, in his letter opinion, had found in McDonald’s favor that Ark. R. Civ. P. 60(b) allows ninety days within which to set aside a judgment for excusable neglect and had then entertained the merits of McDonald’s motion to set aside the default judgment. Consequently, we dismissed the appeal on the basis of mootness. Regarding the appeal now before us, it is necessary to affirm the trial court, as will be seen, under the doctrine of the law of the case.

The factual background is set forth in our earlier opinion. A single issue is raised in the present appeal from a decision by the Conway County Chancery Court denying a motion by appellant McDonald’s Corporation to set aside a default judgment rendered in favor of appellees Marlin and Marvine Hawkins. McDonald’s argues that the chancellor erred in finding, in his order denying the motion, that McDonald’s had not met the requirements of Ark. R. Civ. R 55(c) “justifying its failure to answer the complaint.” According to McDonald’s, a motion to set aside a default judgment should be granted upon a showing that the movant was served with a defective summons and that movant has a meritorious defense to the action.

As mentioned earlier, in the first appeal in this matter, McDonald’s Corp. v. Hawkins, supra, we specifically stated that the chancellor, after having made his findings in his letfer opinion, “then proceeded to address the merits of the motion [to set aside the default judgment].” 315 Ark. at 489, 868 S.W.2d at 80. Because the chancellor addressed the merits of the motion to set aside the default judgment, the present matter is controlled by the doctrine of the law of the case.

An argument that could have been raised in the first appeal and is not made until a subsequent appeal is barred by the law of the case. Willis v. Estate of Adams, 304 Ark. 35, 799 S.W.2d 800 (1990); Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989). Moreover, the law of the case doctrine also prevents consideration of an argument that could have been made at the first trial. Willis v. Estate of Adams, supra; see also Widmer v. Widmer, 292 Ark. 384, 729 S.W.2d 422 (1987).

McDonald’s was not precluded from raising the issue presently before this court during the previous appeal. Therefore, the doctrine of the law of the case must be invoked. We affirm the trial court.

Hays, J., not participating in final vote.

Glaze, J., not participating.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

MARCH 6, 1995

894 S.W.2d 136

Appeal & error — law of the case — order at issue presented to court in first appeal. — The law of the case doctrine exists to prevent fragmented appeals, particularly when the order at issue was part of the record presented to the court in the appellant’s first appeal.

Petition for Rehearing denied.

Boswell, Tucker & Brewster, by: Dennis J. Davis, for appellant.

Mark S. Cambiano, for appellees.

Jack Holt, Jr., Chief Justice. This case was certified to us from the Arkansas Court of Appeals as it was a second appeal following our decision in McDonald’s Corp. v. Hawkins, 315 Ark. 487, 868 S.W.2d 78 (1994). In the first appeal, notice of which was filed on March 15, 1993, the appellant, McDonald’s Corporation, appealed from the trial court’s failure to set aside a default judgment entered against it.

In the first case, we specifically pointed out that the chancellor had concluded that default judgment should stand, observing that the issue McDonald’s Corporation raised on appeal appeared to have been decided in its favor, and that the chancellor had, in fact, addressed the merits of the motion and denied its request to set aside the default judgment.

The only issue raised in that appeal was whether or not a motion to set aside a default judgment is deemed denied within thirty days of filing under Ark. Rule App. 4(c). The transcript of trial contained a letter opinion issued by the trial court on April 12, 1993, which was memorialized by its order on April 30, 1993, denying McDonald’s motion to set aside the default judgment. Also included in the transcript was McDonald’s second notice of appeal, appealing the April 30 order. Since the ultimate issue was the same, i.e., whether or not the trial court should set aside the default judgment, and the parties were the same, McDonald’s should have raised that issue in the first appeal. By McDonald’s failure to do so, its second appeal became subject to the operation of the doctrine of law of the case.

In affirming the trial court’s finding that the motion to set aside the judgment should not be granted, we held in McDonald’s Corp. v. Hawkins, 319 Ark. 1, 888 S.W.2d 649 (1994), that the law of the case applied, referring to the fact that, in our earlier opinion, we made reference to the trial court’s letter opinion and that “the chancellor concluded that the default judgment should stand and an order was entered denying the motion.” We do not retreat from this position. The law of the case doctrine exists to prevent fragmented appeals of this nature, particularly when the order at issue was part of the record presented to the court in the appellant’s first appeal.

In sum, we again affirm the trial court and deny the petition for rehearing.

Dudley and Newbern, JJ., concur.

Glaze and Roaf, JJ., not participating.

Robert H. Dudley, Justice,

concurring. I concur in denying the petition for rehearing, but do not agree that the rehearing should be based on the law of the case. I would reach the merits of the case.

In August 1992, the Hawkinses sold some land in Conway County to McDonald’s. The parties agreed to a restrictive covenant in which the Hawkinses would not use their adjoining land for certain types of restaurant purposes for a twenty-year period. In November 1992, three months later, the Hawkinses filed suit against McDonald’s to have the restrictive covenant declared void.

On November 4, 1992, a summons and petition were mailed to McDonald’s. They received them on November 6. The summons warned McDonald’s, an out-of-state corporation, that it had twenty days in which to answer. According to our Rule of Civil Procedure, an out-of-state corporation actually has thirty days in which to respond.

On December 17, 1992, or forty-one days after service was perfected, the chancellor entered a default judgment voiding the covenant. On January 15, 1993, McDonald’s filed a motion to set aside the default judgment. The basis of the motion was the erroneous warning of the time in which to respond and that it had a meritorious defense. On March 4, 1993, the chancellor heard the motion. McDonald’s presented testimony and evidence in support of its motion. The chancellor asked the parties whether the motion was deemed denied under Ark. R. App. R 4 (c) and (d) because it had not been heard within thirty days from filing of the motion. The trial court did not rule on the merits of the motion and asked the parties to file briefs on both the merits and the question about Ark. R. App. P. 4. McDonald’s Corp. v. Hawkins, 315 Ark. 487, at 488, 868 S.W.2d 78, 79 (1994). (Ark. R. App. P. 4 involves disposition of posttrial motions. Quite different, Rule 60 of the Arkansas Rules of Civil Procedure involves relief from a judgment, decree, or order.)

On March 15, 1993, the chancellor had not ruled on the motion. McDonald’s attorneys feared that the motion would be deemed denied if not ruled on in thirty days and gave notice of appeal solely on that one issue. This notice of appeal was the first step in the process that eventually resulted in opinion in Hawkins I.

On April 30, 1993, or forty-five days after the notice of appeal was filed, the chancellor denied the motion to set aside the default judgment on its merits. The Hawkinses pointed this out in their brief on appeal in Hawkins I. Consequently, we held that the chancellor had not ruled that the petition was deemed denied, and the only issue on appeal was therefore moot. We said:

[W]hen there is no party that has been disadvantaged by an adverse ruling, there is no justiciable issue, and the appellate court has no jurisdictional basis upon which to entertain the appeal. That is exactly what confronts us in this case. McDonald’s prevailed before the chancellor on the sole point raised in this appeal and has no standing to prosecute the matter further at the appellate level.

The appeal, therefore, is dismissed.

Hawkins, 315 Ark. at 489-90, 868 S.W.2d at 80. In summary, we dismissed McDonald’s first appeal because we had “no jurisdictional basis.”

After the chancellor’s ruling on the merits on April 30, 1993, McDonald’s gave a second notice of appeal. That notice of appeal eventually resulted in our opinion in this case, McDonald’s Corp. v. Hawkins, 319 Ark. 1, 888 S.W.2d 649 (1994), in which we held that the law of the case doctrine prevented McDonald’s from raising an issue about the merits of the chancellor’s ruling. We' said that McDonald’s should have raised any question about the merits of the ruling in the Hawkins I. I think we were wrong in so holding. McDonald’s gave its first notice of appeal forty-one days before the chancellor decided the merits of the motion. McDonald’s could not have raised an issue about a ruling on the merits when the chancellor still had not decided the issue. In addition, we held that we had “no jurisdictional basis” for the first appeal. If we had no jurisdictional basis for the first appeal, then the doctrine of law of the case should not attach to the second appeal.

Still, I would deny the petition for rehearing on the merits of the case. Under the facts of this case, it is immaterial that the summons erroneously warned McDonald’s that it had twenty days to respond, rather than thirty days, because service was had on November 6, 1992, and McDonald’s did- not respond until January 15, 1993, which was sixty-nine days later.


author: Robert H. Dudley, Justice.

text:
    Keith L. JOHNSON v. STATE of Arkansas
    94-526
    888 S.W.2d 661
    Supreme Court of Arkansas
    Opinion delivered December 12, 1994

      William R. Simpson, Jr., Public Defender, by: Timothy A. Boozer, Deputy Public Defender, for appellant.

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

Appellant was adjudged a juvenile delinquent for committing the crimes of rape and robbery. He committed the offenses in 1992 and in the same year was committed by the Juvenile Division of Chancery Court to a Youth Services Center of the Division of Children and Family Services. The Youth Services Center later reported to the committing court that appellant had made sufficient progress for a conditional release. The committing court ordered appellant released subject to a number of conditions. The order provided that the court had continuing jurisdiction under Act 974 of 1993, which added subsection (e) to section 9-28-210 of the Arkansas Code Annotated of 1987, and provides, “Upon release from the custody of the board, the youth shall remain under the jurisdiction of the committing court for an indeterminate period not to exceed two (2) years.” Act 974 of 1993 was passed after the crimes were committed and after the adjudication of delinquency.

Following appellant’s conditional release, reports were submitted to the court which stated that appellant violated some of the conditions of his release. The court entered an order directing appellant to show cause why he should not be held in contempt for failure to comply with the court’s order. Appellant objected to the court’s continuing jurisdiction under Act 974 of 1993 on ex post facto and double jeopardy grounds. The trial court reserved ruling on the question of continuing jurisdiction.

Separately, appellant’s mother filed a Family in Need of Services petition in the same court. See Ark. Code Ann. § 9-27-332 (Repl. 1993). She alleged that appellant left home without permission, verbally abused her and other family members, and skipped school. The chancellor consolidated for trial the Family in Need of Services case with the show cause order which was pending in the original juvenile case. At the commencement of the hearing, appellant’s counsel confessed the Family in Need of Services case. After asking a number of questions of appellant and his counsel, and listening to the responses, the trial court ruled: “The court will make a finding that the juvenile has willingly, voluntarily and intelligently entered his plea in the FINS matter, and that both he and his mother understand that the purpose of the proceeding is to provide services.”

Appellant objected to proceeding on the show cause order that was pending in the juvenile case. The chancellor reserved ruling on the jurisdictional issue in the juvenile case, but heard testimony on the Family in Need of Services case. A case worker verified that appellant wa$ suspended from school because of frequent absences and was gone from home entire weekends. Appellant’s mother testified that appellant was possibly affiliated with a gang. A clinical therapist testified that he had conducted a clinical risk assessment of appellant and determined that appellant was antisocial, was at a high risk for committing future sex offenses, and was a danger to the community. He recommended that appellant be committed to an inpatient sexual offender program. On January 13, 1994, the chancellor entered an order placing appellant in inpatient treatment. The order reflects that the court had jurisdiction to order commitment under the Family in Need of Service case and also had continuing jurisdiction under the original juvenile case.

On January 11, 1994, appellant filed a motion alleging that the chancellor had lost jurisdiction of the original juvenile case and was without jurisdiction to commit appellant to inpatient treatment. His grounds were the constitutional prohibitions against ex post facto laws and double jeopardy, the doctrine of separation of powers, and statutory construction arguments. After a hearing on continuing jurisdiction in the original juvenile case, the chancellor ruled that she had jurisdiction to hear the contempt matter under the continuing jurisdiction provisions of Act 974 of 1993 and also under section 9-27-331 of the Arkansas Code Annotated of 1987. The chancellor refused to dismiss the original juvenile case, but held that appellant was not in contempt of court.

Appellant appeals from the original juvenile case, and not the Family in Need of Services case, and argues that the commitment for inpatient treatment is invalid for the same reasons he advanced in the original juvenile case. We do not reach those arguments because they are moot. Appellant, with assistance of counsel, pleaded guilty to a Family in Need of Services petition that had been filed by his mother. Pursuant to section 9-27-332, if a family is found to be in need of services, the juvenile court may enter an order transferring custody of juvenile members of the family to a licensed agency responsible for the care of juveniles. Appellant, by counsel, stated that he had no objection to the hospital commitment for inpatient treatment under the Family in Need of Services case. Thus, appellant was validly committed to the hospital treatment pursuant to the Family in Need of Services case.

Since appellant was validly committed to the hospital in the Family in Need of Services case, even if this court were to hold that the juvenile division of the chancery court had lost jurisdiction of the original juvenile case, we would not order appellant released. The matter is moot. Appellant is in the program pursuant to a petition to which he pleaded guilty. It is therefore of no consequence whether the juvenile court also had jurisdiction to place him there pursuant to the delinquency action. There is nothing else pending in the original juvenile case. The appeal asks for an advisory opinion. We do not address issues that are moot, and we do not render advisory opinions. Johnson v. State, 314 Ark. 471, 475-76, 863 S.W.2d 305, 307 (1993).

In a separate matter, in our decisional conference we discussed whether to affirm this case for failure to comply with Article IV of the Rules of the Supreme Court and Court of Appeals. We do not do so because we determined that the abstract was not flagrantly deficient. However, we note that four pages of the abstract are single-spaced in violation of one of the rules, see Rule 4-1(a), and certain material testimony was omitted. See Ark. Sup. Ct. R. 4-2. However, the omitted material was supplied by the State in a supplemental abstract.

Affirmed.


author: Steele Hays, Justice.

text:
    John Leonard THOMPSON v. Dr. Robert N. DUNN, et al.
    94-499
    889 S.W.2d 31
    Supreme Court of Arkansas
    Opinion delivered December 12, 1994

      Condit, Peek & Young, by: Michael D. Peek, for appellant.

      Friday, Eldredge & Clark, by: Calvin J. Hall and Gregory D. Taylor, for appellee Howard Memorial Hospital.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: J. Kendall Cook, for appellee Dr. R. Dunn.
   Steele Hays, Justice.

This is an appeal from an order dismissing a medical malpractice complaint. The trial court held the statute of limitations barred the action, and we agree.

On July 14, 1991, appellant John Thompson was treated for a foot injury by appellee Dr. Robert Dunn at the Howard Memorial Hospital, also an appellee. Thompson remained under the care of Dr. Dunn and Howard Memorial Hospital until he was discharged on July 19, 1991. On June 25, 1993, Thompson forwarded notice of his claim for medical injury, pursuant to Ark. Code Ann. § 16-114-204 (Supp. 1993), to appellees Dr. Dunn and Howard Memorial Hospital. Thompson filed his original complaint on September 20, 1993, alleging that particles of clothing, petroleum products and dirt which Dr. Dunn failed to clean out of the wound caused a massive infection. Thompson asserted he sustained injuries and damages as a result of the negligence of Dr. Dunn and Howard Memorial Hospital.

Dr. Dunn and the hospital moved to dismiss because the complaint was barred by the two-year statute of limitations, Ark. Code Ann. § 16-114-203 (Supp. 1993). Subsequently, Thompson filed a First Amended Original Complaint, alleging that it was not until February of 1993 that he knew or reasonably could have known the defendants had left foreign objects and material in his foot.

The trial court ruled Thompson’s complaint was barred by the two-year statute of limitations governing medical injury claims and dismissed the complaint with prejudice. In the order of dismissal, the trial court directed that Thompson’s First Amended Original Complaint be stricken. Thompson appeals from the order of dismissal assigning three errors to the trial court: (1) in dismissing the suit since it was filed within the time allowed in § 16-114-204(b); (2) in dismissing the suit since it was filed within the time allowed in § 16-114-203(b); and (3) in striking his First Amended Original Complaint. Finding no error, we affirm the trial court.

I

Ark. Code Ann. § 16-114-204(b)

Under Arkansas law claims for medical malpractice must be brought within two years from the date the cause of action accrues. Ark. Code Ann. § 16-114-203(a) (Supp. 1993). However, an exception is made for foreign objects left in the body of the claimant, in which case the action may be brought within one year from the date of the discovery of the object, or from the date the object should have been discovered, whichever is earlier. Section 16-114-203(b).

Initially, the appellant contends the complaint was filed within the time allotted under Ark. Code Ann. § 16-114-204(b). That section authorizes a ninety-day extension for commencement of a malpractice action if notice pursuant to § 16-114-204(a) is served within sixty days of the expiration of the period described in § 16-114-203. Based on the original complaint, the final date on which Thompson alleged negligence (July 19, 1991) became, for purposes of the lawsuit, the “date of the accrual of the cause of action.” The statute of limitations expired on July 19, 1993; therefore, the June 25, 1993 notice was served within sixty days of the expiration of the statute of limitations. Further, the original complaint was filed within ninety days of the service of the notice and, hence, within the time set out in § 16-114-204(b). Therefore, appellant complied with § 16-114-204(b).

The appellant contends the validity of § 16-114-204(b) was not affected by the holding in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), where this court held ARCP Rule 3 directly conflicts with and supersedes § 16-114-204. This issue, however, was recently settled conclusively in Parmley v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994) and Thomas v. Cornell, 316 Ark. 366, 872 S.W.2d 370 (1994) where the entire statute was held to be superseded. In sum, the grace period pursuant to § 16-114-204 has been invalidated and the two-year statute of limitations set forth in § 16-114-203 is controlling. The appellant’s original complaint, however, was filed after the expiration of the two-year statute of limitations.

II

Ark. Code Ann. § 16-114-203(b)

In the alternative, the appellant submits the “foreign object exception” raised in his First Amended Original Complaint applies. Appellant submits the statutory period for filing the complaint is extended because it was not until February of 1993 that he knew or reasonably could have known that the defendants left foreign objects and material in his foot. The appellees contend the foreign object exception is not applicable because the objects in question were not placed in appellant’s foot by medical care providers. However, we see no reason to determine whether the legislature intended to include the objects in question within the foreign object exception.

Even assuming the appellant did not discover a foreign object until February of 1993, the exception is not applicable and appellant was still required to file his complaint by July 19, 1993. Section 16-114-203(b) provides in part:

However, where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such two-year period, the action may be commenced within one (1) year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier. [Our emphasis.]

Because the “foreign objects” were discovered within the two-year period, the exception is not applicable and the action had to be commenced within two years of the date of the wrongful act complained of. The one-year extension applies only if the object is not discovered, and could not reasonably have been discovered, within such two-year period. In his First Amended Original Complaint, Thompson admits discovering the objects in February of 1993, well within the two-year statutory period.

Ill

“First Amended Original Complaint”

Arkansas Rule of Civil Procedure 15(a) provides in part:

... a party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.

This rule vests broad discretion in the trial court and the exercise of that discretion will be sustained unless it is manifestly abused. Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983). Further, the amendment of a pleading relates back to the date of the original pleading where the requirements of ARCP Rule 15(c) are satisfied. Southwestern Bell Tel. Co. v. Balstech, Inc., 313 Ark. 202, 852 S.W.2d 813 (1993).

The appellant contends in the case before us that the defendants failed to show prejudice. However, the statute of limitations bars the claim in the First Amended Original Complaint and allowing the amendment would cause undue delay. There is good authority that trial judges may properly deny leave to amend if the proposed changes would not save the action. Humphreys v. Roche Biomedical Labs, Inc., 990 F.2d 1078 (8th Cir. 1993). In Humphreys, the court found the complaint, even if amended, would still be time-barred; therefore, there was no abuse of discretion in denying the motion to amend. Further, one seeking reversal on the basis of a denial of a motion to amend pleadings must show a manifest abusé of discretion. See Wing-field. v. Page, supra. No such abuse has been shown to exist in this case.

Affirmed.

Glaze, J., not participating.

       These opinions were handed down after the trial court had entered its findings in this case.


author: David Newbern, Justice.

text:
    PULASKI COUNTY, Arkansas v. CARRIAGE CREEK PROPERTY OWNERS IMPROVEMENT DISTRICT No. 639
    93-1257
    888 S.W.2d 652
    Supreme Court of Arkansas
    Opinion delivered December 12, 1994

      Nelwyn Davis, for appellant.

      Simpson & Graham, P.A., by: Gregory B. Graham and Lynda M. Simpson, for appellee.
   David Newbern, Justice.

The issue in this appeal is whether property acquired and held by an improvement district as the result of foreclosure for failure to pay improvement district assessments is subject to taxation. The Trial Court held that it is not. We affirm the decision.

The appellee, Carriage Creek Property Owners Improvement District No. 639 (the District), foreclosed, in accordance with Ark. Code Ann. § 14-94-122 (Supp. 1993), on 217 lots in the District which were delinquent with respect to District assessments. Lots remained unsold after the attempted sale, and in accordance with § 14-94-122(g)(l), the lots were “bid off’ to the District.

The District thus holds title to the lots and requested that the Assessor remove them from the tax roll until they are sold. The Assessor refused to remove the lots, and the District appealed to the County Court. The County Court ruled that the property should remain on the tax rolls but held that subsequent purchasers of the lots, and not the District, would be responsible for the payment of the taxes.

The District appealed to the Circuit Court which reversed the County Court and held that taxes do not accrue on lands held by an improvement district in its governmental capacity. Pulaski County appeals contending, first, that the District lacked standing to appeal to the Circuit Court because the District was not an aggrieved party and, second, that the property does not qualify for the exemption claimed by the District pursuant to Ark. Const, art. 16, § 5(b).

1. Standing

The County first argues that the Circuit Court lacked jurisdiction of the dispute because the District was not aggrieved by the ruling of the County Court. That argument was not addressed to the Circuit Court. According to this argument, as the County Court did not order the District to pay the taxes, the District was not aggrieved and had nothing from which to appeal. The County equates lack of standing with lack of jurisdiction but cites no authority supporting that proposition.

As we stated in Arkansas State Bd. of Ed. v. Magnolia Sch. Dist. No. 14, 298 Ark. 603, 769 S.W.2d 419 (1989), we are unaware of any authority in this Court holding that lack of standing deprives a court of jurisdiction. See also State v. Houpt, 302 Ark. 188, 788 S.W.2d 239 (1990). If the issue were one of jurisdiction of the subject matter, we would address it despite the fact that it was not raised before the Trial Court. As it is not such an issue, we decline to address it for the first time on appeal. See Truhe v. Grimes, 318 Ark. 117, 884 S.W.2d 255 (1994); City of Hot Springs Ad. & Promotion Comm’n v. Cole, 317 Ark. 269, 878 S.W.2d 371 (1994).

2. Exemption

Article 16, § 5(b), of the Constitution provides that “public property used exclusively for public purposes” is exempt from taxation. The County does not question the fact that the property held by the District is “public property.” Rather, the dispute is over whether it is being “used exclusively for public purposes.”

Although many cases are cited by each party, the discussion must be centered upon two of them. In School District of Fort Smith v. Howe, 62 Ark. 481, 37 S.W. 717 (1896), a part of the military reservation at Fort Smith was donated by an act of Congress to the city of Fort Smith, to be held in trust for the use of the free public schools. The lots belonged to the school district of Fort Smith. The Court recognized that the land was public property but held it was not exempt from taxation as it was not used for public purposes. It was not used for school grounds, nor was there any intention to build school facilities on the land. The land was purchased and held for sale or rent with the resulting funds going to public purposes.

In Robinson v. Indiana & Ark. Lbr. & Mfg. Co., 128 Ark. 550, 194 S.W. 870 (1917), an action was instituted against a lumber company to quiet title to certain land. The lumber company’s claim to the land depended upon its having paid taxes for more than seven years under color of title. During some of that time the land had been held by the St. Francis Levee District. The Chancellor held in favor of the plaintiff. We reversed, holding that no taxes had accrued during the time the land was held by the Levee District. We distinguished Ft. Smith School Dist. v. Howe, supra, and said:

There is a material difference between the use of property exclusively for public purposes and renting it out and then applying the proceeds arising therefrom to the public use. The property under our Constitution must be actually occupied or made use of for a public purpose and our court has recognized the difference between the actual use of the property and the use of the income.

After pointing out that the Levee District had obtained the lands through a foreclosure for failure to pay the levee taxes due to the Levee District, we said:

The levee district only held the lands that it acquired at levee tax sale until it was practical to dispose of them again. They were not held for any purpose of gain or as income producing property. When sold, the proceeds took the place of the levee taxes, for the enforcement of which and the expenses incident thereto, they were sold, and in this way we think the lands were directly and immediately used exclusively for public purposes within the meaning of the Constitution, and were not subject to taxation.

The Circuit Court had before it the unrefuted affidavit of one of the District commissioners stating, in part, that “The Lots are currently held by the District in its governmental capacity pending sale of the Lots to recover delinquent taxes and penalties. The District is not leasing the lots or otherwise utilizing the Lots in. any proprietary manner.”

The Trial Court thus properly reversed the decision of the County Court.

Affirmed.


text:
    Geraldine Faye REED v. Wanda Bookout GLOVER
    94-464
    889 S.W.2d 729
    Supreme Court of Arkansas
    Opinion delivered December 12, 1994

      Henry & Henry, for appellant.

      Kenneth G. Fuchs, for appellee.
   David Newbern, Justice.

Geraldine Faye Reed, the appellant, is the mother of Wanda Bookout Glover, the appellee. Ms. Glover is the mother of Cody Shewmake, who was aged three when this case began in 1993. Ms. Glover and Mark Shewmake lived together but did not marry. There is no question, and he acknowledges the fact, that Mark Shewmake is the father of Cody Shewmake, although there has been no legal determination of paternity. Cody Shewmake is in the custody of Ms. Glover who will not allow Ms. Reed to visit him.

Ms. Reed sought visitation. The Chancellor denied her request, and she appeals. The Chancellor’s order stated that the conditions of Ark. Code Ann. § 9-13-103(a) (Repl. 1991), the statute granting visitation rights to grandparents in certain circumstances, had not been met and that Ms. Reed’s contention that the statute is unconstitutional was denied. Ms. Reed then moved to vacate the order, contending that in Rudolph v. Floyd, 309 Ark. 514 832 S.W.2d 219 (1992), we had interpreted the statute in such a way as to allow a grandparent visitation rights in circumstances such as those now before us. The motion was denied.

In her appeal, Ms. Reed argues the Chancellor erred in holding that the statute does not permit visitation rights to be accorded to her and, alternatively, that the statute is unconstitutional. We decline to address the constitutional issue fully because we have been given no authority or convincing argument demonstrating that it lacks a rational basis.

We affirm the Chancellor and hold that, absent a statutory provision granting it, a grandparent has no right of visitation with a grandchild.

Shortly after Cody Shewmake was born in 1989, Ms. Glover pleaded guilty to federal charges of conspiracy to handle crystal methamphetamine. She was sentenced to three months in a halfway house and three-and-a-half years probation. Ms. Reed and her husband agreed to take custody of the child during that time. After Ms. Glover’s release, Ms. Reed continued to care for the child while Ms. Glover was working. When Ms. Glover ended her relationship with Mr. Shewmake in 1992, she and the child moved in with the Reeds. Thereafter, they lived in a trailer parked on land belonging to the Reeds, and Ms. Reed continued to care for the child while Ms. Glover was away at work or on vacation.

In 1993, Ms. Glover and the Reeds argued, and Ms. Glover has, since that time, denied Ms. Reed any opportunity to see or visit with Cody Shewmake.

1. The statute

At common law, a grandparent could not maintain an action for visitation rights to a grandchild except as a party to a custody proceeding. See Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981). Grandparents’ rights with respect to their grandchildren must be derived from statutes or conferred by a court of competent jurisdiction pursuant to statutes. Cox v. Stay-ton, 273 Ark. 298, 619 S.W.2d 617 (1981).

In pertinent part, § 9-13-103(a)(1) provides as follows:

Upon petition by a person properly before it, a chancery court of this state may grant grandparents . . . reasonable visitation rights with respect to their grandchild or grandchildren ... at any time if the marital relationship between the parents of the child has been severed by death, divorce, or legal separation or if the child is in the custody or under the guardianship of a person other than one (1) or both of his natural or adoptive parents.

The plain language of the statute thus limits its operation to cases in which a “marital relationship between the parents of the child has been severed ... or if the child is in the custody or under the guardianship of a person other than one (1) or both of his natural or adoptive parents.” Neither of those situations exists in this case, so on its face, the statute is of no benefit to Ms. Reed’s claim.

2. The Rudolph case

Ms. Reed argues that a grandparent’s right to visit her grandchild should exist despite the lack of an underlying marital relationship between the child’s parents. In essence, she asserts that the decision in the Rudolph case reflects this Court’s recognition that a grandparent’s rights are derived from the parental rights of his or her child and the only condition to be fulfilled before a grandparent can invoke those rights is the establishment of the grandparent’s child’s maternity or paternity of the child.

In the Rudolph case, the father of an unborn child conceived out of wedlock filed a paternity petition in a chancery court. He requested custody of the child and,.in the alternative, visitation. His parents, the Floyds, joined in the petition, seeking grand-parental visitation rights. The Court entered an order establishing paternity of Brandon Floyd and granting visitation to Arthur Floyd as grandfather, to be exercised concurrently with Brandon Floyd until the child reached age six. The child’s mother and her parents, who were also parties, appealed, arguing that there was no statutory authority to award visitation rights to grandparents of children born out of wedlock.

We affirmed the order of the Chancellor, holding statutory authority for granting visitation rights to grandparents in these situations existed, based upon Ark. Code Ann. §§ 9-13-103(a) and 9-10-109(a) (Repl. 1993). Section 9-10-109(a) provides:

Subsequent to the finding by the chancery court that the defendant is the father of the child, the court shall follow the same guidelines, procedures, and requirements as set forth in the laws of this state applicable to child support orders and judgments entered by the chancery court as if it were a case involving a child born of a marriage in awarding custody, visitation, setting amounts of support costs and attorneys’ fees, and directing payments through the clerk of the court.

We thus held that when there is a finding of paternity and a petition requesting grandparent visitation, the Chancellor had authority to grant visitation to the grandfather of the unborn child. The decision was based on statutory authority and not on the rights of a grandparent as derived from the parental rights of their children.

Ms. Reed notes that in our opinion in the Rudolph case we quoted with approval a passage from C. Brummer and E. Looney, Grandparent Rights in Custody, Adoption, and Visitation Cases, 39 Ark. L. Rev. 259 (1985), suggesting that a grandparent’s rights with respect to a grandchild may result from the maternity of the child as well as paternity. The essence of the language cited from the law review article is in these words, “because grandparents’ rights are only derivative, they may be contingent upon the establishment of paternity or maternity and are subject to divestment when parental rights are terminated.” Our quotation of that language did nothing to undermine the basis of our decision in the Rudolph case which was purely statutory.

As there was no showing of statutory authority for the establishment of the right of visitation, the Chancellor did not err.

3. Constitutional arguments

Ms. Reed contends the Chancellor erred in finding that § 9-13-103 is not unconstitutional as a violation of both the Equal Protection and Due Process clauses of the Fourteenth Amendment of the United States Constitution. She has failed, however, to cite any authority to support those contentions.

On review, this Court must presume a statute is constitutional, and the attacking party has the burden of proving otherwise. Citizens Bank v. Estate of PettyJohn, 282 Ark. 222, 667 S.W.2d 657 (1984). All doubts are resolved in favor of constitutionality. Where a constitutional construction is possible, we uphold the statute. Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994).

a. Equal protection

As to equal protection, Ms. Reed asserts that an impermissible classification exists between the grandparents of legitimate children and the grandparents of illegitimate children. The Equal Protection Clause permits classifications that have a rational basis and are reasonably related to a legitimate government purpose. Hamilton v. Hamilton, supra. In determining whether a rational basis for a classification exists, we engage in the following analysis:

On an equal protection challenge to a statute, it is not our role to discover the actual basis for the legislation. Instead we are merely to consider whether any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives, so that the legislation is not the product of utterly arbitrary and capricious government purpose and void on any hint of deliberate and lawful purpose. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). Further, the party challenging the legislation has the burden of proving that the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts.

To meet her burden, Ms. Reed must show that the classification between grandparents of legitimate children and grandparents of illegitimate children is arbitrary and capricious, for which there is no legitimate government purpose.

It cannot be said that Ark. Code Ann. § 9-13-103(a) is completely devoid of a legitimate purpose. At one point in its evolution, this statute provided grandparents with the right to seek visitation regardless of the marital status of the parents. However, the General Assembly later added the conditions involving the severance of marriage in order to avoid bestowing upon grandparents rights greater than those given to parents. See C. Brummer and E. Looney, supra, at p. 273. Additionally, we can understand well how the General Assembly might have wished to leave such domestic matters out of the arena of litigation unless the child of the grandparent died or the need for it had arisen in a related but separate context such as divorce or paternity proceedings. At any rate, we have been given no authority or convincing argument showing that there is no rational basis for the classification suggested.

b. Due process

Ms. Reed asserts that her due process rights were violated because her right to see her grandchild was taken away without a hearing. That argument necessarily assumes she has a legal right to visit her grandson that has been taken away without an opportunity to be heard. The argument also has no merit.

Before we may apply the tests attendant upon a claim of a due process violation, there must be a showing of some right or interest which is protected by the Constitution. Cox v. Stayton, supra. As already established, any rights existing in grandparents must be derived from statutes or conferred by a court of competent jurisdiction pursuant to statutes. As there is no statute that supports Ms. Reed’s right to visit her grandson, it cannot be said that she had a constitutionally protected interest that would afford her the right to a hearing.

Affirmed.


author: Tom Glaze, Justice.

text:
    McCOURT MANUFACTURING COMPANY v. CREDIT BUREAU of Fort Smith
    93-1407
    888 S.W.2d 650
    Supreme Court of Arkansas
    Opinion delivered December 12, 1994

      Thompson & Llewellyn, P.A., by: M. Keith Blythe, for appellant.

      Ronald W. Metcalf, P.A., for appellee.
   Tom Glaze, Justice.

On August 6, 1992, the appellee Credit Bureau of Fort Smith obtained a default judgment against Clayton Erwin Hickey in the amount of $400.00, plus $44.45 court costs and $75.00 attorney’s fees. On October 21, 1992, Credit Bureau caused a writ of garnishment to issue with allegations and interrogatories attached. They were served on Hickey’s employer, McCourt Manufacturing Company, on October 23, 1992. On that same date, McCourt Manufacturing wrote a letter to the court clerk, stating Hickey was owed $30.00 for three hours of work at the time the writ of garnishment was served. That letter was filed by the clerk on October 27, 1992. Apparently, McCourt Manufacturing never specifically answered the interrogatories.

On January 4, 1993, Credit Bureau filed a motion for judgment against McCourt Manufacturing pursuant to Ark. Code Ann. § 16-110-407 (Supp. 1993), alleging McCourt Manufacturing was liable for the full sum of the judgment upon which the writ of garnishment was issued. The municipal court set a hearing for February 24, 1993. By letter dated February 16, 1993, McCourt Manufacturing’s president notified the court that he was going to be out of the country on the hearing date, and asked the court to continue the hearing to March. Receiving the letter on February 18, the municipal court denied McCourt Manufacturing’s request as untimely. The trial court conducted its hearing on February 24th, but neither McCourt Manufacturing nor its president appeared. On March 11, the municipal court entered an order in which McCourt Manufacturing was ordered to pay $1,124.45, which included the amount of the original judgment against Hickey, plus interest, court costs and attorney’s fees.

On June 23, 1993, McCourt Manufacturing filed a motion to set aside the March 11 judgment, and Credit Bureau filed a response, asserting the garnishee McCourt Manufacturing had failed to show a justifiable reason to set aside the judgment. On July 20, the municipal court entered a short order denying McCourt Manufacturing’s motion, and, for some unexplained reason, it entered another order dated July 21, denying the same motion, but this time, stating McCourt Manufacturing had failed to meet its burden of proof under ARCP Rule 55(c). On August 12, 1993, McCourt Manufacturing filed a motion with the circuit court to set aside the municipal court’s “default judgment,” and on September 27, 1993, the circuit court denied McCourt Manufacturing’s motion. On October 6, 1993, McCourt Manufacturing filed a notice of appeal to this court from the circuit court’s September 27 order and, for reversal, argues Arkansas’s garnishment statutes are unconstitutional. We are unable.to reach McCourt Manufacturing’s constitutional arguments because of jurisdictional reasons.

McCourt Manufacturing failed to file a timely appeal to circuit court pursuant to Inferior Ct. R. 9. Under that rule, a party has thirty days from entry of judgment to file an appeal. Here, the municipal court’s judgment was entered against McCourt Manufacturing on March 11, 1993, but McCourt Manufacturing delayed until August 12, 1993, or five months, before filing its motion or appeal with the circuit court. Thus, the circuit court was without jurisdiction or authority to accept McCourt Manufacturing’s untimely appeal from the March 11 judgment. See Hawkins v. City of Prairie Grove, 315 Ark. 150, 871 S.W.2d 357 (1994).

Although McCourt Manufacturing waited too late to file an appeal from the March 11 judgment, it filed a motion with the municipal court, asking that court to set aside its “default judgment” pursuant to ARCP Rule 55(c). Specifically, McCourt Manufacturing contended the municipal court’s “default judgment” was void which is justifiable reason for setting aside a judgment under Rule 55(c)(2). After the municipal court denied the motion on July 21, 1993, McCourt Manufacturing appealed that denial order to circuit court on August 12, 1993 — well within thirty days. Thus, while McCourt Manufacturing concedes it was untimely to appeal from the municipal court’s March 11 order, it contends its August 12 appeal from the July 21 order was timely.

McCourt Manufacturing’s primary problem is its mischaracterization of the municipal judgment as being a “default judgment.” As discussed earlier, McCourt Manufacturing filed an answer in this cause, and it later asked for a continuance. In its order giving judgment against McCourt Manufacturing to Credit Bureau, the municipal court did so upon “a review of the file and the answer filed by the garnishee, McCourt Manufacturing,” and its finding that “McCourt Manufacturing is indebted to Clayton Erwin Hickey.”

In sum, the record reflects that, while it or its representative failed to show at the February 24 trial, McCourt Manufacturing had answered and otherwise appeared in this matter by requesting a continuance. With McCourt Manufacturing’s answer and other matters before it, the municipal court made its findings and reduced Credit Bureau’s claim to judgment. Such judgment was entered upon the merits, and as a consequence, McCourt Manufacturing is not entitled to set it aside as a default judgment under ARCP Rule 55(c). See M. v. Clark, 316 Ark. 439, 872 S.W.2d 410 (1994). McCourt Manufacturing’s remedy, if any, would have been under ARCP Rule 60(c). However, McCourt Manufacturing did not pursue that remedy, presumably because none of the grounds listed in Rule 60(c) are present here.

For the reasons given above, we must dismiss McCourt Manufacturing’s appeal.

       Prior to this time, McCourt Manufacturing had been acting pro se.

      McCourt Manufacturing’s constitutional argument suggests the state’s garnishment statutes fail to provide notice to garnishee-employers that they can be held liable for their employee’s entire judgment if the employer fails to withhold the employee’s nonexempt wages for a three-year period.


text:
    Darryl Lynn RANKIN and Mrs. Darryl Lynn Rankin v. FARMERS TRACTOR & EQUIPMENT COMPANY, INC.
    94-541
    888 S.W.2d 657
    Supreme Court of Arkansas
    Opinion delivered December 12, 1994

      David Hodges, for appellants.

      Friday, Eldredge & Clark, by: Guy Alton Wade, for appellee.
   Tom Glaze, Justice.

The primary issue in this appeal is whether appellant Darryl Rankin’s suit for negligence against Farmers Tractor & Equipment Company, Inc., is barred by the exclusivity provisions of the Workers’ Compensation Act. This dispute commenced when a workers’ compensation claim form was filed, reflecting that, on July 12, 1993, Rankin notified his employer, Farmers Tractor and Equipment Company, Inc., that he sustained a work-related injury on June 29, 1993. After an initial investigation of the claim, Farmers, on July 23, 1993, controverted Rankin’s claim, alleging Rankin’s injury had not arisen in the course and scope of employment. Farmers’ bases for controversion were that Rankin had had back problems before, he had not duly reported this specific work incident, and his co-workers denied that the incident ever occurred.

On September 15, 1993, Rankin and his wife filed suit against Farmers in circuit court, alleging that Rankin injured his back moving a desk and Farmers’ negligence was the proximate cause of his injury. On October 4, 1993, Farmers moved to dismiss, stating the Rankins’ complaint was barred by Ark. Code Ann. § 11-9-105(a) (Supp. 1993), the exclusive remedy provision of the Workers’ Compensation Act. Farmers further moved for a protective order, requesting Rankin be precluded from conducting discovery against Farmers because it was not subject to suit under the exclusivity provision of the Workers’ Compensation law. Rankin agreed no discovery should be done pending the resolution of Farmers’ motion to dismiss, so the trial court entered an order granting Farmers’ request for protective order.

Rankin filed an affidavit, alleging he was an employee of Dickey Machine Works (Dickey) at the time of the June 29, 1993 incident, and was not an employee of Farmers. In response, Farmers filed supplemental exhibits that reflected the following: (1) Exhibit A included the certificate of the Secretary of State’s office that Farmers applied for and received authority to operate under the fictitious name of Dickey Machine Works and that this authority had been certified on October 15, 1992, prior to the date of the alleged work incident on June 29, 1993; (2) Exhibit B was a certified copy of the application for the fictitious name of Dickey which was filed by Farmers. On January 5, 1994, Farmers also filed an affidavit of its chief executive officer, Bill Jones, setting out that (1) Farmers had operated under the fictitious name of Dickey, (2) Dickey is a part of Farmers and not a separate legal entity, (3) Rankin was employed and paid by Farmers at the time of the alleged injury on June 29, 1993, and (4) Farmers provided workers’ compensation insurance coverage for all of its employees who were injured within the course and scope of employment.

Subsequently, Rankin sought to depose CEO Bill Jones. Farmers agreed, stating that Jones would be produced for the limited purpose of discussing issues related to Farmers’ motion to dismiss and Rankin’s employment relationship to Farmers. Rankin then cancelled Jones’s deposition, and filed a motion with the court to enter an order prohibiting any restrictions on the discovery deposition of Jones.

At the request of the parties, the trial court .set a hearing date for February 18,1994, to consider “various pending matters.” On that date, the trial court conducted a hearing on Farmers’ motion to dismiss and other matters before the court. Upon a review of the pleadings, exhibits and arguments of counsel, it determined that Farmers’ motion to dismiss should be granted because the court lacked subject matter jurisdiction under the Workers’ Compensation exclusivity provision, § ll-9-105(a). On March 8, 1994, an order to that effect was entered dismissing the action with prejudice. Rankin appeals from that order.

Rankin first complains that, at the February 18 hearing, the trial court, without notice, improperly converted Farmers’ motion to dismiss into a motion for summary judgment. Rankin argues that, under the circumstances in this case, the trial court was restricted to reviewing the facts alleged in his complaint when considering Farmers’ dismissal motion, and because the court looked beyond the complaint, it erred. See Mid-South Beverages, Inc. v. Forrest City Grocery Co., 300 Ark. 204, 778 S.W.2d 218 (1989). Rankin contends that the court obviously looked at pleadings and other matters outside the complaint because his complaint alleges a personal injury claim against Farmers; it does not assert Farmers was Rankin’s employer at the time of his injury. Farmers responds, stating the settled rule that, if matters outside the pleadings are presented and not excluded by the court, the motion to dismiss will be treated as one for summary judgment. See Ark. R. Civ. P. 12(b) and (c); Cross v. Coffman, 304 Ark. 666, 805 S.W.2d 44 (1991).

Farmers factually asserts that it had filed its motion on October 4, 1993, the trial court notified Rankin by letter dated January 25, 1994, that a February 18 hearing would be held on “various pending matters,” and Rankin had over four months to gather affidavits to rebut Farmers’ motion. Farmers further asserts Rankin knew exhibits were attached to Farmers’ motion, and thus, would be treated as one for summary judgment. We agree.

We point out that, contrary to Rankin’s contention, he did not rely solely on the allegations of his complaint. Instead, he attached his own affidavit and exhibit to counter exhibits and affidavit filed by Farmers. In sum, Rankin revealed his intention to meet Farmers’ proof when he filed his responses with attachments.

Rankin’s argument must also fail because he fails to show he suffered any prejudice by the trial court’s summary judgment ruling. In BWH, Inc. v. Metropolitan National Bank, 267 Ark. 182, 590 S.W.2d 247 (1980), the court stated that, although it did not approve of the disposition of a motion for summary judgment without notice and hearing, it will not reverse a summary judgment when it is manifest that error is not prejudicial.

Here, as previously mentioned, Rankin had agreed to preclude any discovery pending resolution of Farmers’ motion to dismiss. Even so, he sought CEO Bill Jones’s deposition, and Farmers agreed to produce Jones to testify to matters bearing on Farmers’ motion and the employment issue. Rankin wanted more and rejected the opportunity to depose Jones unless all restrictions were removed. Rankin fails to suggest how he was prejudiced by his own cancellation of Jones’s deposition or show what possible relevant information he was barred from obtaining from Jones or Farmers. Prior to the February 18 hearing, Rankin did request certain documents, and argues his requests should have been granted since they dealt with Farmers’ allegation that Farmers obtained the fictitious name of Dickey. He fails, however, to clarify how he expects such documents would develop a material issue. We are merely left to speculate on how the trial court’s summary judgment ruling prejudiced Rankin. We will not reverse in these circumstances. Id.

Rankin next argues that, even if the trial court properly considered Farmers’ motion as one for summary judgment, the trial court erred in holding no material issue of fact exists. He claims a contested factual issue exists as to whether he is an employee of Farmers. To support this argument, Rankin points to his affidavit, averring that he was an employee of Dickey at the time of his injury. However, the record further reflects that Dickey is a fictitious name used by Farmers, and Dickey is a part of Farmers and not a separate entity. Thus, considering both Rankin’s and Farmers’ proof, Rankin is shown to have been an employee of Farmers at the time of the alleged injury. In this same argument, Rankin, citing no authority, also argues that, since Farmers controverted his workers’ compensation claim as one not arising in the course and scope of his employment, he is then entitled to seek alternative compensation in circuit court. Such an argument is without merit. This court has held many times that an employer is immune from liability for damages in a tort action brought by an injured employee. Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987). Rankin cites Ark. Code Ann. § ll-9-105(b)(l) (Supp. 1993), which, he claims, allows him to maintain a personal injury suit for damages when his employer (Farmers) failed to secure compensation payment under the Workers’ Compensation laws. The simple answer to this argument is that the proof showed Farmers was Rankin’s employer and Farmers had provided workers’ compensation insurance coverage for all of its employees.

Rankin also argues that the trial court erred in failing to proceed with Mr. Jones’s deposition so he could inquire as to the matters in Jones’s affidavit. Too, Rankin claims he was entitled to his requests for production of documents. We have touched on this matter above. Bill Jones’s deposition was scheduled for January 4, 1994. Jones was to be produced as a witness for the limited purpose of discussing the issues related to the motion to dismiss and the employment status of Rankin. As previously mentioned, Rankin was dissatisfied with having any restrictions imposed, so he cancelled the deposition.

In sum, a discovery deposition of Jones was made available to Rankin, it was refused, and Rankin has not persuasively argued that the trial judge abused his discretion. Where additional discovery might not have changed the outcome of the summary judgment proceedings and the appellant’s arguments are unpersuasive, this court cannot say the trial court abused its discretion. Pinkston v. Lovell, 296 Ark. 550, 759 S.W.2d 20 (1988).

In another argument advanced by Rankin, he suggests that the “dual capacity doctrine” allows Farmers to be subjected to a tort claim so jurisdiction is proper in circuit court. The dual capacity argument was not presented at the lower court, and this court has repeatedly held that it will not decide matters raised for the first time on appeal. Truhe v. Grimes, 318 Ark. 117, 884 S.W.2d 255 (1994).

Rankin offers yet another argument which we have already partially dealt with above. Because the exclusive remedy statute relied upon by Farmers contains no provision to encompass a separate division operating under a fictitious corporate name, Rankin contends that there is insufficient evidence in the record to determine which entity, Dickey or Farmers, had control of Rankin on the day of his injury. This argument is yet another approach to Rankin’s major contention that a material issue of fact exists bearing on whom he was working for when he sustained his injuries. Again, as evidenced by the Jones affidavit and the secretary of state’s office, Dickey is no more than a fictitious name used by one of the divisions of Farmers and is not a separate legal entity. Because Rankin is an employee of Dickey, he is an employee of Farmers.

In another argument, Rankin urges the trial court erred in dismissing the complaint with prejudice. Again, he cites no authority to support his argument, and suffice it to say that, because the circuit court has no jurisdiction in this matter, its dismissal by summary judgment is required.

Finally, Rankin argues that the trial court erred in permitting Farmers’ attorney, in argument, to present factual matters to the court that were not contained in the record. Rankin cites McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990), to support his argument that, where the conduct of the attorney is tantamount to the attorney testifying, it is prohibited. McIntosh is inapposite here. In the present case, both parties had submitted their motions, responses and exhibits, and argued that evidence at the February 18 hearing. Farmers’ counsel argued his case alluding to the exhibits he had attached in support of Farmers’ motion. The argument is meritless.

For the reasons set out above, we affirm the trial court’s summary judgment ruling.