author: Ray Thornton, Justice.

text:
    Timothy Wayne KEMP v. STATE of Arkansas
    CR 00-482
    74 S.W.3d 224
    Supreme Court of Arkansas
    Opinion delivered May 16, 2002

      Sam T. Heuer, for appellant.

      Mark Pryor, Att’y Gen., by; Michale C. Angel, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

This appeal arises from a trial court’s denial of the Rule 37 petition. Appellant, Timothy Kemp, was arrested and charged with four counts of capital murder. He was convicted and sentenced to death by lethal injection on each count. The factual background surrounding appellant’s conviction was outlined in Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996) (Kemp I).

In Kemp I, we affirmed the conviction and sentence pertaining to one victim, Richard Falls, and affirmed the convictions only as to the remaining three counts. We reversed the death sentences as to the three remaining counts and remanded for resentencing, as there was insufficient evidence to support the trial court’s instruction to the jury with respect to the statutory aggravating circumstance that the murders were committed for the purpose of avoiding arrest. Id.

Following resentencing, the trial court again imposed the death sentence as to each of the three counts. Appellant then appealed to this court. See Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998), cert. denied 526 U.S. 1073 (1999) (“Kemp II”). On appeal, he challenged the admissibility of victim-impact evidence, the constitutionality of the victim-impact statute, and the applicability of the law-of-the-case doctrine. We affirmed appellant’s three death sentences. Id.

Thereafter, appellant filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. After a hearing on the matter, the trial court denied the Rule 37 petition. This order was appealed to our court in Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001)(“Kemp IV”) . We determined that the trial court’s order did not comply with the requirements of Rule 37.5(i) of the Arkansas Rules of Criminal Procedure, and remanded the matter to the trial court for specific factual findings. On April 5, 2002, the trial court’s amended order, denying appellant’s petition for postconviction rehef, was filed.

It is from that order that appellant brings this appeal. Finding no reversible error, we affirm the trial court.

On appeal from a trial court’s ruling on Rule 37 relief, we will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.

The criteria for assessing the effectiveness of counsel were enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), which provides that when a convicted defendant complains of ineffective assistance of counsel he must show that counsel’s representation fell below an objective standard of reasonableness and that but for counsel’s errors the result of the trial would have been different. Id. We have adopted the rationale of Strickland and held that:

To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial.

Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997)(internal citations omitted). In Thomas, we further held:

In reviewing the denial of relief under Rule 37, this court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.

Id. (internal citations omitted). Remaining mindful of the applicable standard of review, we turn now to appellant’s points on appeal.

For his first allegation of error, appellant argues that trial counsel was ineffective for failing to investigate the ownership of a weapon found at the crime scene. Specifically, he argues that a further investigation into this matter would have had bearing on his “imperfect self-defense” claim.

Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). A decision not to investigate must be directly assessed for reasonableness under all the circumstances, applying a heavy measure of deference to counsel’s judgments. Id. (citing Strickland, supra).

At the hearing on appellant’s petition, trial counsel testified that the “imperfect self-defense” was the heart of appellant’s defense in the mitigation phase of the trial. Specifically, in mitigation, trial counsel argued that appellant believed, because he was intoxicated, that he acted in self-defense. At the hearing, trial counsel also offered his rationale for not investigating the gun’s ownership. He testified that:

In the penalty phase in the first trial, the jury made a finding, and I do not recall whether it was unanimous or not unanimous, but the record would reflect whatever it was — that — with my proposed mitigator — our proposed mitigator of he believed he was acting in self-defense.
There was a weapon found that was not associated with Mr. Kemp. And he had indicated — he had indicated to me in the trial preparation that one of the people had a weapon, and of course, there was a weapon found. We did elicit that fact, which again played into our he thought he was acting in self-defense.
In terms of presenting this, of course Mr. Kemp did not testify.
* * *
So , we had — we — we had some limitations on exactly what we could allege that Mr. Kemp perceived when he did not testify.
* ifc 'Jfi
It [the weapon that was found] was a different caliber from the weapon that was the homicide weapon.
No, [I did not take steps to ascertain ownership of the weapon] I don’t recall having done so. Of course, it was present at the scene and which for our purposes was — it was present at the scene; it was associated with one of the deceased individuals. And, for our purposes, that — that’s what we needed — needed to know.

On this issue, the trial court found:

in light of the circumstances of this case, the decision of Kemp’s counsel not to further investigate the ownership of the weapon was not unreasonable. For example, as explained previously by this court at Kemp’s postconviction relief hearing, the issue of ownership of the weapon was raised at trial, and the jury had ample opportunity to consider that issue as part of Kemp’s self-defense claim. Further, Kemp failed to articulate how he was prejudiced by the fact that his attorney failed to further investigate the ownership of the weapon. Kemp merely states that had his attorney further investigated this matter, it would have affected his self-defense claim.

After reviewing the facts surrounding this issue, we conclude that trial counsel’s failure to investigate the ownership of the gun found at the crime scene did not constitute ineffective assistance of counsel. Specifically, we hold that determining who owned the weapon would not have changed the outcome of the trial. Moreover, we note that trial counsel fully developed appellant’s self-defense claim without knowing the identity of the gun’s owner. The jury was informed that a gun was found at the scene and that the gun did not match the weapon that was used to commit the murders. From this evidence, the jury could have determined that one of the victims had a gun and that appellant was forced to use his gun in self defense. Accordingly, the trial court’s finding on this issue was not clearly erroneous.

For his second allegation of error, appellant argues that trial counsel was ineffective for failing to correctly cite Ark. Code Ann. § 5-2-614 (Repl. 1997), the statute regarding the “imperfect self-defense,” in a proffered jury instruction. Specifically, he argues that omitting a phrase from the statute constituted ineffective assistance of counsel.

The statute provides:

(a) When a person believes that the use of force is necessary for any of the purposes justifying that use of force under this sub-chapter but the person is reckless or negligent either in forming that belief or in employing an excessive degree of physical force, the justification afforded by this subchapter is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish culpability.
(b) When a person is justified under this subchapter in using force but he recklessly or negligently injures or creates a substantial risk of injury to a third party, the justification afforded by this subchapter is unavailable in a prosecution for such recklessness or negligence toward the third party.

Ark. Code Ann. § 5-2-614.

The instruction that trial counsel proffered at trial on the issue of appellant’s claim of self-defense is as follows:

When a person believes that the use of force is necessary in defense of himself but that person is reckless or negligent either in forming that belief or in employing an excessive degree of physical force, the defense of justification — use of deadly physical force in self-defense — is unavailable as a defense to any offense for which recklessness or negligence suffices to establish culpability.

The trial court refused the proffered jury instruction.

At the Rule 37 hearing, when asked about the jury instruction, trial counsel testified:

There were two statutory provisions dealing with what amounts to mistakenly, recklessly, or negligently forming the belief that one is acting in self-defense. They’re in the statutes. They are not in the AMCI jury instructions. So, I proposed instructions based upon the statutes which deal with this precise situation. They were rejected by this court. We appealed on this basis and pointed out that they were specifically relevant because of the jury’s findings in the penalty phase that Mr. Kemp felt he was acting in self-defense.
-i' * -i-
Judge Humphrey turned these instructions down on the basis they weren’t in the AMCI.
* * *
What I did was I tried to make the jury instruction fit. You know, I used language that would be appropriate for a jury instruction.
* * *
It was an instruction that went to the heart of our defense which was that Mr. Kemp had — had thought, perhaps wrongfully or mistakenly, that he was acting in self-defense.

On this issue, the trial court found:

the failure of Kemp’s counsel to properly cite the model jury instruction was reasonable in light of the circumstances of this case, and that Kemp has failed to prove that he was prejudiced by his counsel’s action. In so finding, the court notes that at trial, the jury heard evidence as to the amount of force used by Kemp and the reasonableness of his belief that such force was justified under the circumstances. Thus, that counsel omitted the phrase, “. . .is necessary for any of the purposes justifying that the use of force under this sub-chapter” does not amount to a showing that Kemp was denied a fair trial or that the trial would have been different but for counsel’s error. Indeed, there is no showing that the court would have given this instruction even if counsel had cited it properly.

"We must determine whether trial counsel’s failure to cite Ark. Code Ann. § 5-2-614 correctly in the proffered jury instructions constituted a deficient performance that so prejudiced appellant that he was deprived of a fair trial. We have held that there must be a rational basis in the evidence to warrant the giving of an instruction. Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996). A party is entitled to an instruction on a defense if there is sufficient evidence to raise a question of fact or if there is any supporting evidence for the instruction. Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996). Where the defendant has offered sufficient evidence to raise a question of fact concerning a defense, the instructions must fully and fairly declare the law applicable to that defense; however, there is no error in refusing to give a jury instruction where there is no basis in the evidence to support the giving of the instruction. Id.

A person may not use deadly physical force in self-defense if he knows that he can avoid the necessity of using that force with complete safety by retreating. See Ark. Code Ann. § 5-2-607(b)(l) (Repl. 1997). Additionally, this defense is not applicable when one arms himself and goes to a place in anticipation that another will attack him. See Girtman v. State, 285 Ark. 13, 684 S.W.2d 806 (1985).

In the present case, there was no basis to provide the jury instruction for the “imperfect self-defense.” At trial, the State established that appellant and his girlfriend, Becky Mahoney, rode around Little Rock drinking beer, before they stopped at the home of one of the victims, David Wayne Helton. After spending time at the residence, appellant asked Ms. Mahoney to leave with him. She declined, and another victim, Cheryl Phegley, asked him to leave as well. The evidence revealed that appellant left the crime scene, returned with a weapon, and killed the four victims while Ms. Mahoney hid in a closet. During the course of the shooting spree, appellant followed Cheryl Phegley down the hallway and shot her a second time. There was a total of twelve spent shell casings at the crime scene.

Additionally, Bill Stuckey, appellant’s best friend, testified that appellant told him that Cheryl Phegley had started all the argument. Mr. Stuckey also testified that appellant was drinking when he came to his trailer, but that he was not as drunk as he had seen him before.

Based upon the evidence presented at trial, we conclude that there was no rational basis for the “imperfect self-defense” instruction. Although appellant had been drinking prior to the murders, there was testimony that appellant was not drunk. More significantly, we note that appellant left the residence, armed himself with a gun, returned to the residence, and opened fire upon entering the front door. Therefore, appellant could not rationally argue that he recklessly or negligently formed the belief that the use of deadly force was necessary to protect himself.

After reviewing the record before us, we cannot say that the trial court’s finding that a different sentence would not have resulted if trial counsel had accurately cited Ark. Code Ann. § 5-2-614 in his proffered jury instruction was clearly erroneous. Accordingly, we hold that appellant failed to establish a claim for ineffective assistance of counsel on this point.

For his third allegation of error, appellant contends that trial counsel was ineffective for failing to request a severance of the trial. Specifically, he argues that counsel should have requested a severance of the separate counts of capital murder because a severance would have allowed the jury to consider each offense separately and would have ensured that there was no spilling-over of victim-impact testimony.

At the Rule 37 hearing, trial counsel offered an explanation as to why he chose not to request a severance. He stated:

I did not [move to sever the four counts] because inasmuch as they were all at the same time. I mean they were — they were— the four people who were killed were killed one right after the other in the same place, at the same time. And I did not perceive any ground for a successful severance.

On this issue, the trial court found:

Kemp’s attack on the strategy of his trial counsel is not persuasive, and does not state a ground for Rule 37 post-conviction relief.
* * *
The decision to ask for severance is generally a matter of trial tactics and hence, not reviewable under Rule 37. Further, this court finds that Kemp has failed to demonstrate how he was prejudiced, or that he was denied a fair trial due to counsel’s failure to request and/or obtain severance.

Rules 21.1 and Rule 22.2 of the Arkansas Rules of Criminal Procedure discuss the procedures whereby offenses are either joined or severed in criminal cases. Rule 21.1

Two (2) or more offenses may be joined in one (1) information or indictment with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both:
(a) are of the same or similar character, even if not part of a single scheme or plan; or
(b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

Id. Rule 22.2 provides:

(a) Whenever two (2) or more offenses have been joined for ' trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.
(b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (a), shall grant a severance of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(ii) if during trial, upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.

Id. We have explained that the decision to sever offenses is discretionary with the trial court. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). We have also held that we will affirm a trial court’s denial of a motion to sever if the offenses at issue were part of a single scheme or plan or if the same body of evidence would be offered to prove each offense. Id. See also Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996).

After reviewing the evidence surrounding the crimes, we conclude that if trial counsel had filed a motion to sever the offenses his motion would have been denied. Specifically, the four murders, which occurred at the same location, at the same time, were clearly the result of a single scheme or plan. Moreover, the evidence offered at trial to establish each offense would be identical. Accordingly, a severance of the offenses was not proper. Because trial counsel’s severance motion would not have been successful, appellant has failed to support a claim of ineffective assistance of counsel. See Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000)(holding that trial counsel cannot be ineffective when he fails to make an argument which has no merit). Therefore, the trial court properly denied appellant’s claim of ineffective assistance of counsel on this point.

Additionally, as noted by the trial court, it can be argued that whether or not to move for a severance is a matter of trial strategy. We have held that matters of trial strategy and tactics, even if arguably improvident, are not grounds for a finding of ineffective assistance of counsel. Williams v. State, 347 Ark. 371, 59 S.W.3d 432 (2002).

For his fourth point, appellant reargues several issues which we have previously addressed. Rule 37 does not allow appellant to reargue points decided on direct appeal. In Davis, supra, we discussed the nature of Rule 37 and the type of claims which may or may not be pursued in this type of action. We explained:

Rule 37 does not provide an opportunity to reargue points that were settled on direct appeal. Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000). The rule does not provide a remedy when an issue could have been raised in the trial or argued on appeal. Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999). Rule 37 does not permit a petitioner to raise questions that might have been raised at the trial or on the record on direct appeal, unless they are so fundamental as to render the judgment void and open to collateral attack. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). Postconviction relief is not intended to permit the petitioner to again present questions that were passed upon on direct appeal. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980). Rule 37 is a narrow remedy designed to prevent incarceration under a sentence so flawed as to be void. Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999).

Davis, supra.

Because appellant’s arguments involve issues that are direct attacks on the judgment rather than collateral attacks, and because these issues have already been considered on direct appeal, these issues are not cognizable under Rule 37. However, in Kemp IV, out of an abundance of caution, and because this appeal involved a case in which the death penalty was imposed, we directed the trial court to make specific findings with regard to these issues that we now briefly address.

First, appellant challenges the use of victim-impact testimony. Specifically, he argues that the victim-impact statute, Ark. Code Ann. 5-4-602(4) (Repl. 1997), is- unconstitutional. Appellant notes that we addressed this issue in his prior appeals. In Kemp I, supra, appellant challenged the constitutionality of Arkansas’s victim-impact statute. We rejected his arguments and declared the statute constitutional. Id. In Kemp II, supra, appellant attempted to reargue this issue, and we held that, pursuant to the law-of-the-case doctrine, appellant’s arguments provided no basis for relief. Id. In Kemp II, we also noted that we have upheld the constitutionality of the victim-impact statute on “many occasions.” Because appellant has failed to provide us a reason to depart from our previous holdings, we once again conclude that the Arkansas victim-impact statute is constitutional.

Appellant also argues that “the utilization of victim-impact evidence presented by the State in the sentencing phases of Kemp I and Kemp II was so unduly prejudicial that it rendered the trial fundamentally unfair in violation of the due process clause of the Fourteenth Amendment.” Appellant once again notes that “this argument was considered in Kemp I and rejected.” In that case, we held:

When evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief. After reviewing the victim-impact evidence presented in this case, we conclude that this line was not crossed here.
* * *
We cannot say that this testimony was so unduly prejudicial that it rendered appellant’s trial fundamentally unfair; thus, we reject his argument.

Id. (internal citations omitted). After reviewing our prior holding on this matter, we decline to reach a contrary result on the same issue in this appeal.

Next, appellant seeks to reargue whether the trial court should have given certain proffered jury instructions. Specifically, appellant contends that the trial court erred in denying proffered jury instructions on the issues of “imperfect self-defense,” based on Ark. Code Ann. § 5-2-614 and “mistaken belief of fact,” based on Ark. Code Ann. § 5-2-206(d) (Repl. 1997). These instructions were written by trial counsel and rejected by the trial court. As noted by appellant, we addressed this issue in Kemp I, supra. We conclude that the analysis and reasoning articulated in Kemp I disposes of this issue.

Finally, appellant argues that the First Division of the Pulaski County Circuit Court was without territorial jurisdiction to preside over his case. This issue was decided in Kemp I, supra, where we held that territorial jurisdiction in the First Division of the Pulaski County Circuit Court was proper. We decline the request that we overturn our holding that venue was proper in the First Division of the Pulaski County Circuit Court.

Affirmed.

       We note that the procedural argument raised by the State was addressed in Kemp IV} supra. Specifically, we held:
      In its brief, the State argues that appellant’s claims pertaining to the death sentence for one victim, Richard Falls, should be procedurally barred because the Rule 37 petition was untimely. However, the State overlooks our decision of Kemp v. State, 326 Ark. 910, 934 S.W.2d 526 (1996) (per curiam) (“Kemp III”), where we concluded:
      We recall the portion of the mandate affirming the conviction and death sentence and stay it until such time as a final disposition of the remaining counts is complete. As such, any petition under Ark. R. Crim. P. 37.2(c) must be filed within sixty days of a mandate following an appeal taken after re-sentencing on the remaining counts. If no appeal is taken after re-sentencing on these counts, the petition must be filed with the appropriate circuit court within ninety days of the entry of judgment.

        Kemp III.

      Here, appellant timely filed his Rule 37 petition. The mandate of our court was returned to the trial court on April 29, 1999, and on May 18, 1999, appellant appeared before the trial court, at which time the trial court appointed Mr. Heuer, counsel for appellant, who met the qualifications set forth in Rule 37.5(b)(2). On August 11, 1999, appellant filed his Rule 37 petition. Therefore, appellant’s Rule 37 petition was not untimely with regard to the Falls’s sentence.

        Kemp IV.


source: Caselaw Access Project

author: Jim Hannah, Justice. Robert L. Brown, Justice, Annabelle Clinton Imber, Justice,

license: Public Domain

text:
    George WILLIAMS and Dorothy Cox v. CITY OF FAYETTEVILLE, Arkansas; Advertising and Promotion Commission of the City of Fayetteville, Arkansas; Bekka Development Co.; Nabholz Construction Corporation; and Wittenberg, Delony & Davidson, Inc.
    01-211
    76 S.W.3d 235
    Supreme Court of Arkansas
    Opinion delivered May 16, 2002

      The Evans Law Firm, P.A., by: Marshall Dale Evans and Karen Pope Greenaway, The Hirsch Law Firm, P.A., by: E. Kent Hirsch, and Pettus Law Firm, P.A., by: E. Lamar Pettus, for appellants.

      Bassett Law Firm, by: Woody Bassett and James M. Graves; and Kit Williams, for appellee City of Fayetteville.

      Davis, Wright, Clark, Butt & Caruthers, PLC, by: Constance G. Clark and William Jackson Butt, for appellee Bekka Development Co.

      Boyer, Schrantz, Rhoads & Teague, by: Ronald L. Boyer; and Friday, Eldredge & Clark, by: John Dewey Watson, for appellee Nabholz Construction Corp.

      Conner & Winters, PLLC, by: John R. Elrod and Terri Dill Chadick, for appellee Wittenberg, Delony & Davidson, Inc.
   Jim Hannah, Justice.

This case involves the question of whether a bond measure presented to the public for approval pursuant to Amendment 62 of the Arkansas Constitution may not only approve issuance of bonds but may also act as a restraint on a municipality’s ability to expend other funds on the same project. This case also presents questions of illegal exaction in expenditure of general funds.

Appellants present three issues in their brief. The first issue is whether the ballot measure on the bond issue set the total amount of money that could be spent by the City in building a civic center, commonly called the Town Center. The second issue is whether use of the city’s general fund, derived in part from city sales taxes, for construction of the Town Center constitutes an illegal exaction in that the city sales tax was only to be used for improvement of municipal services and financing of the same. The third issue is whether use of turn-back funds from the county-sales tax that are in the general fund constitutes an illegal exaction in that they were only to be used for resolving a county financial crisis of 1981.

More specifically, appellants allege that by presenting a ballot measure to the public whereby the City of Fayetteville proposed to fund its debt on the construction of the Fayetteville Town Center by the issuance of bonds, it simultaneously committed itself to build the Town Center for the amount of revenue raised by the bonds.

We hold that neither the ordinance nor the ballot title speaks to anything but issuance of bonds under Amendment 62 as a means of financing debt and that no restraint on City spending was created thereby. We hold that the use of the city sales-tax revenue to pay a portion of the Town Center costs is not an illegal exaction. We also hold that there was no proof that the City was using County sales tax turn-back funds to pay for any of the Town Center costs.

Facts

In 1977, the City passed Ordinance 2310, which levied a 1% hotel, motel, and restaurant tax. The taxes generated were administered by the Advertising and Promotion Commission, which was created for that purpose. The Commission used the tax funds to promote the city, to encourage tourism, and to develop a convention center for the city. To this end, the Commission passed a resolution, earmarking $1,000,000 for the development of a convention center, which was accumulated by 1997.

In 1997, the City decided to move forward on construction of a convention center and calculated the amount of debt the tax revenues generated by the 1% hotel, motel, and restaurant tax could support to be $6,950,000. The City then passed Ordinance 4038 and set an election for a decision by the voters on whether to issue $6,950,000 in bonds under Amendment 62 of the Arkansas Constitution to finance debt on the construction of the convention center. By this point, the convention center was being called the Fayetteville Town Center. The measure passed. The City then had a total of $7,950,000 to build the Town Center.

On August 3, 1999, the City entered into construction contracts on the Town Center in the amount of $7,346,408. On August 4, 1999, this lawsuit was instituted claiming that the ballot measure under Amendment 62 limited the total sum the City could spend on construction of the Town Center to the $6,950,000 of the bond measure.

Some additional funds beyond the 7.9 million dollars available were needed for further contracts, and the City determined to pay for them first with parking fees and the balance with general funds. It appears that the total cost of the Town Center was about 8.4 million dollars.

Amendment 62

Appellants argue that the ordinance and ballot title on the bond measure to finance the debt on the Town Center project not only authorized issuance of the bonds, but also by its wording limited the expenditures on the project to the amount of the bonds. This issue does not involve a claim of illegal exaction. The parties agree that there was no diversion of funds by way of the bond issue and, therefore, no issue of illegal exaction. Maddox v. City of Fort Smith, 346 Ark. 209, 56 S.W.3d 375 (2001); Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574 (1997).

In Hasha v. City of Fayetteville, 311 Ark. 460, 845 S.W.2d 500 (1993), this court stated:

Amendment 62 to the Constitution of Arkansas was approved at the November 1984 general election. It is entitled “Local Capital Improvement Bonds” and repealed Amendments 13, 17, 25, and 49. Section 1(a) of Amendment 62 authorizes municipalities to issue bonds, upon approval by the voters, for capital improvements of a public nature and authorizes an ad valorem tax to repay the capital improvement bonds. The same section, 1(a), permits other taxes to be used to repay capital improvement bonds if authorized by the General Assembly.

Hasha, 311 Ark. at 463.

Arkansas Code Annotated § 14-164-302 (Repl. 1998) provides additional clarity:

The people of the State of Arkansas by the adoption of Arkansas Constitution, Amendment 62 have expressed their intention to provide county and municipal governments expanded powers and authority with respect to the creation of bonded indebtedness for capital improvements of a public nature and the financing of facilities for the securing and developing of industry, and have empowered the General Assembly to define and prescribe certain matters with respect to the exercise of this power and authority. To that end this subchapter is adopted to enable the accomplishment and realization of the public purposes intended by Arkansas Constitution, Amendment 62 and is not intended to otherwise limit in any manner the exercise of the powers of counties and municipalities.

Thus, the purpose of Amendment 62 is to authorize municipalities to issue bonds upon approval of the voters. Also, it does not otherwise limit the exercise of power by municipalities and counties.

Ordinance 4038 complied with Amendment 62 in calling for a special election to put the question of a bond issue to finance the Town Center project before the voters. The ordinance provides:

WHEREAS, the City can finance the Town Center including incidental expenses and expenditures in connection with constructing and equipping the Town Center and expenses in connection with authorizing and issuing bonds by the issuance of bonds in an amount not to exceed $6,950,000.00.

The ballot title provides similarly:

VOTE FOR OR AGAINST the issuance of bonds of the City of Fayetteville to finance the construction of the Fayetteville Town Center as a new, multi-purpose, civic center for meetings, conventions, exhibitions, entertainment events, related uses an parking. The bonds will be issued in an amount not to exceed $6,950,000.00 and for a term not to exceed twenty-two years and will be retired from all or any part of the proceeds of the city’s existing 1% hotel and restaurant gross receipts tax.

Both the ordinance and the ballot title discuss the issuance of bonds to finance debt. That is the purpose of Amendment 62. There is no discussion in Amendment 62, nor in the ordinance, nor in the ballot title, regarding anything but issuance of bonds as a means of structuring debt of $6,950,000 to be used in the construction of the Town Center. To read into the ordinance or ballot measure a restriction on how much the City may expend on the Town Center is to read into them something that was never contemplated, something that is not there, and something that is not provided for by Amendment 62, which is the only authority by which the measure was presented to the voters. Appellants want to characterize the ballot measure as one that placed before the voters the decision on total costs for the Town Center when what it was, was a request for authorization to issue bonds.

Appellants assert Arkansas-Missouri Power Corp. v. City of Rector, 214 Ark. 649, 217 S.W.2d 335 (1949), is dispositive and requires that we rule in their favor. We disagree. City of Rector is inapposite to the facts of this case. First, the present case involves Amendment 62, and City of Rector involved Amendment 13. Second, the ordinance in City of Rector stepped beyond structuring debt. In that case, the Ordinance recited, “The Council finds that the estimated cost of said plant is Sixty-Five Thousand Dollars. . . .” City of Rector, 214 Ark. at 652. There is no such issue in this case. Amendment 62 speaks to financing by issuing bonds. The amount of debt undertaken on the project that is debt on the amount of the bond issue. The ordinance and the ballot title only speak to financing debt on the project. There was no misrepresentation. The bond measure passed by the voters only authorized the City to issue bonds and did not bind it to the bond sum as the total sum it could spend for construction of the Town Center.

City Sales Tax

Appellants argue that the use of city sales tax funds in the general fund to pay for a portion of the costs of construction of the Town Center Project is a misappropriation of tax funds and a violation of Arkansas Constitution Art. 16, § 11, in that taxes levied to use in improvement of municipal services are being used to make capital improvements. An illegal exaction is a tax that is either not authorized by law or is contrary to law. Tucker v. Holt, 343 Ark. 216, 33 S.W.3d 110 (2000); Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989). Article 16, § 11, of the Arkansas Constitution provides:

No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same; and no moneys arising from a tax levied for one purpose shall be used for any other purpose.

An illegal exaction also occurs where tax revenues are shifted to a use different than the use authorized. Oldner v. Villines, supra; Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998). Further, where there is no statement of purpose for use of the taxes in the ordinance or ballot title, the revenues may be used for general purposes. Maddox, supra. However, if a purpose for the tax is stated either in the ordinance or in the ballot title, use of the funds for another purpose constitutes an illegal exaction. Maas v. City of Mountain Home, 338 Ark. 202, 992 S.W.2d 105 (1999).

In 1993, the City passed Ordinance 3688, which provided in pertinent part:

AN ORDINANCE PROVIDING FOR THE LEVY OF A ONE PERCENT SALES AND USE TAX WITHIN THE CITY OF FAYETTEVILLE, ARKANSAS; PROVIDING FOR AN EXPIRATION DATE FOR SUCH SALES AND TAX OF JUNE 30, 2003 AND PRESCRIBING OTHER MATTERS PERTAINING THERETO.
WHEREAS, the City Council of the City of Fayetteville, Arkansas (the “City”) has determined that there is a great need for immediate improvement of municipal services and for a source of revenue to finance such services, and. . . .

The ballot title provided:

AN ORDINANCE PROVIDING FOR THE LEVY OF A ONE PERCENT SALES AND USE TAX WITHIN THE CITY OF FAYETTEVILLE, ARKANSAS; PROVIDING FOR AN EXPIRATION DATE FOR SUCH SALES AND USE TAX OF 30 JUNE, 2003 AND PRESCRIBING OTHER MATTERS PERTAINING THERETO.

Appellants argue that the city sales tax could only be used for municipal services and that construction of the Town Center is a capital improvement, not municipal services. Neither the ordinance title nor the ballot title make mention of municipal services. That is found in the body of the ordinance. Just what was contemplated as municipal services in the ordinance was not defined. The Town Center is to provide a number of municipal services and will provide for meetings, conventions, exhibitions, entertainment events, and related uses. The sales tax was to be used to improve services and to finance improvement of services. Certainly, the construction of the Town Center could be construed to provide improvement of services.

The appellants bear the burden of showing that the use of city sales-tax funds constitutes an illegal exaction. Rankin v. City of Fort Smith, 337 Ark. 599, 990 S.W.2d 535 (1999). It is, therefore, appellants’ burden to prove that use of the sales tax for construction of the Town Center was not provision of, or financing provision of municipal services. Appellants incorrectly state that the issue is what constitutes “improvement of municipal services.” Appellants fail to include all the relevant language. The relevant language is “(the City) has determined that there is a great need for an improvement of municipal services and for a source of revenue to finance such services. . . .” Appellants are also incorrect in arguing that the nature and extent of municipal services may be determined from the services in existence in 1993. First, the language of the ordinance and ballot title do not state anything about services in existence in 1993. Further, the provision for financing infers an intent to provide for future eventualities. We do not agree that the sales tax was limited to maintaining existing services. There is no support for this narrow interpretation in the authority provided.

Appellants also argue that Ark. Code Ann. § 14-73-101(2) (Repl. 1998) defines improvements, and that every capital improvement listed in this section as well as in Ark. Code Ann. § 26-75-203 (Repl. 1997), is a structure or building, and that the tax cannot reasonably be used to build a structure. The Town Center would unquestionably increase and improve the municipal services the City could provide for its citizens. But for structures, no services could be provided. Municipal services are not provided in a vacuum. We are controlled by the language in the ordinance and in the ballot title. Based upon the case presented, we cannot say that under the subject ordinance, financing the improvement of municipal services may not include capital improvements.

County Sales Tax

Appellants here assert that a countywide sales tax dating from 1981 was earmarked in the originating ordinance for countering a financial crisis existing in 1981 that threatened a reduction in “certain services.” There was also a resolution by the county quorum court at this time indicating that additional funds derived from the tax could be used for county services and capital improvements. Finally, the tax provided that revenues not spent by the county would be returned pro rata to the municipalities.

Before we go further, we must note that the evidence presented to the trial court was that no turn-back funds were or would be used on the Town Center project. Appellants make no argument before this court that this is not so. If the funds are not being used on the project, there is no issue of illegal exaction in their use.

Other Arguments

There are other arguments that arise in the appellees’ brief and in the reply brief. They will not be considered. Any alleged assignments of error must be argued in the original brief. Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996); Commonwealth Pub. Serv. Co. v. Lindsay, 139 Ark. 283, 214 S.W. 9, (1919).

Affirmed.

Corbin, Brown and Imber, JJ., concur.

Robert L. Brown, Justice,

concurring. The primary question in this appeal is whether language in the levying ordinance and in the ballot title itself for the 1997 bond issue can be read two ways. I believe it can. The levying ordinance and ballot title read in relevant part as follows:

Levying Ordinance
WHEREAS, the City can finance the Town Center'including incidental expenses and expenditures in connection with constructing and equipping the Town Center and expenses in connection with authorizing and issuing bonds by the issuance of bonds in an amount not to exceed $6,950,000.00(the “Bonds”) under the authority of Amendment 62 to the Constitution of the State of Arkansas ....
Ballot Title
VOTE FOR OR AGAINST the issuance of bonds of the City of Fayetteville to finance the construction of the Fayetteville Town Center as a new, multi-purpose, civic center for meetings, conventions, exhibitions, entertainment events, related uses and parking. The bonds will be issued in an amount not to exceed $6,950,000.00 and for a term not to exceed twenty-two years and will be retired from all or any part of the proceeds of the city’s existing 1% hotel and restaurant gross receipts tax.

Williams argues that this language in the Ballot Tide tells the voter that only $6,950,000 is needed to finance the Town Center. The City claims that neither instrument limits the City to a $6,950,000 price tag. I can read the instruments both ways, and because of this, I conclude that the language is unclear and ambiguous. The question is whether that fact, in and of itself, constitutes an illegal exaction.

This court has recognized two types of illegal exaction: (1) “public funds” cases where there is either a misapplication of public funds or recovery of funds wrongly paid to a public official; and (2) illegal tax cases where the tax itself is illegal. See Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997); Pledger v. Featherlite Precast Corp., 308 Ark. 124, 823 S.W.2d 852 (1992). The instant case is not an illegal-tax case. Nor does it involve the diversion of funds from one purpose to another, at least with regard to the bond issue. What the voters approved is bond financing of $6,950,000 for the project. The fact that that represented part or all of the money necessary to do the job does not equate to an illegal exaction. Like the majority, I do not view Arkansas-Mis souri Power Corp. v. City of Rector, 214 Ark. 649, 217 S.W.2d 335 (1949), as holding to the contrary. In that case, a lack of clarity was not involved but a deliberate misleading of the voters. The voters were told in the Ballot Title that the “estimated cost” of the electric light plant was $65,000, when in point of fact a week later it was shown to be more than twice that amount. That type of deliberate subterfuge is not evident in the case before us.

Where I disagree with the majority is in its suggestion that the voters should have understood the bonds were only partial financing for the project because the bonds were to be issued in accordance with Amendment 62 to the State Constitution. Reference to Amendment 62 appears only in the ordinance, and that fact appears to me to be irrelevant to our inquiry. I would not require the voting public to have knowledge of the intricacies of the State Constitution, such as Amendment 62, when they vote. What we have said in the past is that it is only the plain language of the Ballot Title that the public should look to for information. See Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998); Arkansas-Missouri Power Corp. v. City of Rector, supra. Indeed, in Daniel, we made it clear that mere references to an Act of the legislature in a ballot title was not sufficient to inform the voters about what they were voting. Here, Amendment 62 was not even mentioned in the ballot title. Yet, somehow the majority believes that the voters should have been aware of Amendment 62 and understood it. That goes way beyond what our cases have said and puts a horrendous burden on the voter. I would adhere to our previous cases and look only to the levying ordinance for the City’s stated purposes and to the ballot title for information to the voter. See Daniel v. Jones, supra.

Where I also disagree with the majority is over the definition of “municipal services,” as referenced in the 1993 levying ordinance for the one percent sales and use tax. The majority concludes that “municipal services” includes capital improvements and building projects. A “service” is defined as “the duties, work, or business performed or discharged by a government official . . . useful labor that does not produce a tangible commodity.” Webster’s Third New International Dictionary, Unabridged p. 2075 (1993). Services such as police, fire, and sanitation services differ qualitatively from capital improvements, such as construction of the Town Center.

The City argues that a Resolution was passed by the City Board on the same day as the 1993 levying ordinance for the one percent sales and use tax which clearly specified that the tax revenues would be used for construction projects. But that information was not part of the levying ordinance, and this court has recently held that City resolutions and other extraneous information cannot supersede the purposes stated in a levying ordinance. See Maddox v. City of Fort Smith, 346 Ark. 209, 56 S.W.3d 375 (2001). The majority opinion does not rely on the City’s argument regarding the Resolution but, instead, concludes that a building project is a service.

As with the bond issue, the City’s draftmanship suffers from a lack of clarity. Had the term “municipal services” been included in the 1993 Ballot Title, I would reverse on this point. Since it was not, I cannot say that this deficiency in the levying ordinance warrants reversal.

Corbin, J., joins.

Annabelle Clinton Imber, Justice,

concurring. I concur in the result reached by the majority. In my view, our decision in this case should begin and end with this court’s decision in Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574 (1997). As stated in the majority opinion, Arkansas-Missouri Power Corp. v. City of Rector, 214 Ark. 649, 217 S.W.2d 335 (1949), is inapposite to the facts of this case.

The Appellants’ fourth amended complaint alleges that the City perpetrated an illegal exaction when it expended the “public’s money from sources unauthorized by the voters and citizens [• - .] a violation of Article 16, § 11, of the Arkansas Constitution.” That Article and section provides in relevant part: “No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same, and no moneys arising from a tax levied for one purpose shall be used for any other purpose.” In construing this constitutional provision, we have held that, “[i]t is only when a diversion of tax revenues occurs from a specific purpose that has been authorized to an unauthorized purpose that an illegal exaction occurs.” Oldner v. Villines, 328 Ark. at 305, 943 S.W.2d at 579 (1997)(emphasis added).

Here, there has been no diversion of funds derived from the bond issue, the city sales tax, or the county sales tax. That is, none of these funds have been used for a purpose not authorized by a city or county ordinance. Under Oldner v. Villines, supra, an illegal exaction does not occur until tax revenues are shifted to a use different from that authorized. Therefore, no illegal exaction in the expenditure of public funds has occurred in this case.


author: Per Curiam.

text:
    Jeremiah CLARK v. STATE of Arkansas
    02-430
    74 S.W.3d 215
    Supreme Court of Arkansas
    Opinion delivered May 16, 2002

      Althea E. Hadden, for appellant.
    No response.
   Per Curiam.

Appellant Jeremiah Clark, by and through his attorney, has filed a motion for rule on clerk. His attorney, Althea E. Hadden, states in the motion that the record was tendered late due to a mistake on her part.

We find that such an error, admittedly made by an 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.


author: Per Curiam. Robert L. Brown, Justice,

text:
    Robert WHITE v. Sharon PRIEST, In Her Official Capacity as Secretary of State of the State of Arkansas; and Mark Pryor, In His Official Capacity as Attorney General of Arkansas
    02-284
    73 S.W.3d 572
    Supreme Court of Arkansas
    Opinion delivered May 17, 2002

      Oscar Stilley, for petitioner.
    No response.
   Per Curiam.

Mr. Oscar Stilley has filed a petition for an original action wherein he asserts seven counts for relief. On April 10, 2002, this court granted his counts one and two, and denied the remaining counts. He had requested disqualification of all justices to recuse from hearing his petition because, he argues, they have demonstrated a hostility towards him and because the justices have an interest in the outcome in the case.

Mr. Stilley’s arguments deal primarily with his belief that, over a ten-year period, this court ruled against him in five cases. He offers no other allegations bearing on any hostility issue, but seeks to “interrogate” the present justices “eyeball-to-eyeball” at a hearing in a discovery fashion in an attempt to find reasons why the court is hostile towards him. Instead of alleging reasons for the justices’ recusing, he merely suggests he wants a hearing to “ferret out the facts” pertinent to disqualifications. Mr. Stilley also asserts the sitting justices have a pecuniary interest in this case because one of the ballot-title issues concerns a proposed amendment that could “cap” their salaries, if the proposed amendment is adopted. On April 10, 2002, this court granted Mr. Stilley’s request to review that ballot title and proposed amendment.

Mr. Stilley presents no valid reasons or allegations that warrant a justice’s recusal in this case. The only reason Mr. Stilley offers to show the court’s hostility towards him is that he lost five prior cases before this court that he claims he should have won. Fourteen different justices served on this court during the ten-year period in which those five cases were decided. This argument is yet another disingenuous way to again show his dissatisfaction concerning earlier opinions of this court with which he disagrees. Such re-visits of earlier cases offer nothing new showing that the precedential value of those opinions should be reversed. In fact, Stilley’s pleadings, motion, and argument constitute a clear violation of Ark. R. App. P. — Civ. 11. In this same vein, this court, on prior occasions, has expressed its displeasure with attorneys who have directed disrespectful language towards courts and judges. See McLemore v. Elliott, 272 Ark. 306, 614 S.W.2d 226 (1981) (striking appellant’s brief due to “intemperate and distasteful language” directed toward trial judge, pursuant to former Ark. Sup. Ct. R. 6); see also Ark. Sup. Ct. R. 1-5 (captioned “Contempt,” it provides, “No argument, brief, or'motion filed or made in the Court shall contain language showing disrespect for the trial court”). In view of Mr. Stilley’s continued strident, disrespectful language used in his pleadings, motions, and arguments, and his repeated refusal to recognize and adhere to precedent, Mr. Stilley’s 70-page brief should be stricken entirely.

Examples of Mr. Stilley’s remarks follow:

It is also all too possible that the Court will simply decline to rule consistently, upholding Kurrus when that is convenient, blithely ignoring Kurrus when consistency of decision making will not bring the desired result.
* * *
Therefore, it appears that the only persons in this Act receiving more than $100,000 per year are judicial officers. Why then did the Court falsely claim that this Act supported their theory that many executive branch employees get over $100,000.
* * *
The Court’s action in pretending to raise a claimed conflict on the part of the Governor, on such flimsy grounds, indicates a fear on the part of the justices that an impartial tribunal will decide the case honestly but contrary to the way that this Court would decide.the case.
It grieves undersigned counsel to be forced to recount part of the many serious and apparently intentional wrongs that the members of this Court has [sic] committed, as part of their claim for recusal. However, by refusing to honesdy consider a fair claim for disqualification, made as gently as possible, the Court puts undersigned counsel in the position of having to raise these issues to protect his rights and the rights of his clients.
The Court simply left its decision intact even though its reasoning is wholly irreconcilable with prior decisions of the Court. This leaves two possibilities. One, the court, in its original opinion intentionally lied about the citation of these authorities. These authorities do in fact annihilate the Court’s reasoning and ruling on the parol evidence question in this case. If this is the basis for the oversight, the Court and each of its members necessarily demonstrate rank prejudice against Appellant and should recuse.
The other possibility is that the Court accidentally overlooked these authorities, although they were cited and included in the lists of authorities, and although these cases were discussed at length at pages 2-4 of the Appellant’s reply brief. If this is the problem, Appellant wishes to hear the reason, if any, that Appellant should be expected to trust the competence of the Court in the decision of this cause.
* * *
By this means, any reader of this motion may examine Exhibit “1,” and compare same to the opinion in Roberts v. Priest, and thus know that the Roberts Court wilfully and knowingly ignored the principal argument of the Intervenors, because the argument was irrefutable.
The decision of the Court, coupled with the Court’s history of refusing to correct blatant and manifest error upon request for rehearing, requires that undersigned counsel make this fact known to the public. Publicity is the cure for government evils. Most certainly, a refusal to acknowledge and adjudicate arguments, solely because they provide irrefutable proof in favor of a position disliked by the Court, is a government evil that must be stamped out.
* * *
It seems the Court knew in advance that its ruling would not withstand any critical analysis, and wished to stifle any pleading that would expose the weakness of the Court’s opinion.
This simply shows that the Court reacts in anger to despised arguments by undersigned counsel that it cannot logically refute. This behavior is exactly the sort for which the bench and bar have fallen into great disfavor and distrust with the general public in Arkansas.
* * *
What is required, in other words, is a return to sfare decisis, and adherence to established legal rules even when the judge or justice prefers a result different from that required by the law. This conduct has not stopped. Rather it has intensified.
* * *
The list of cases in which the Court has acted prejudicially to undersigned counsel is by no means complete. On the contrary, this is the tip of the iceberg. This Court has repeatedly shown that it will declare the law one way on undersigned counsel’s cases, and the opposite on cases by other individuals.

We cite the foregoing examples of the general tone of disrespect for the code of ethics and Mr. Stilley’s breach of his oath of office as an attorney-at-law. That disrespect for the court pervades Mr. Stilley’s brief. As was the situation in McLemore, we examined Mr. Stilley’s brief to see if we could strike only some parts, but find Mr. Stilley’s intemperate and distasteful language spread throughout all of his brief. Mr. Stilley asked to incorporate his brief as part of his petition. We conclude that Mr. Stilley’s brief is an inexcusable breach of the obligation of professional conduct that this court expects of the members of the bar. Accordingly, we direct that all copies of his brief shall be stricken in their entirety from the files of this court.

Because this matter implicates a breach of the Model Rules of Professional Conduct, we refer Mr. Stilley to the Professional Conduct Committee and request the Committee to take whatever action it believes his actions warrant under the Model Rules of Professional Conduct.

Brown, J., concurs in part and dissents in part.

Robert L. Brown, Justice,

concurring in part; dissenting in part. I agree with much of the majority’s opinion. However, I have decided to recuse on one of the two ballot-title matters that remain before this court to be decided. The case on which I am recusing involves a constitutional amendment to reduce the salaries of state officers and employees. If passed, it would mean a reduction of the salaries of Supreme Court Justices by almost twenty percent.

On the issues not related to recusal, I agree that Mr. Stilley is attempting to resuscitate an issue long since laid to rest in Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000), and that he has not shown sufficient reason why he should not be sanctioned for this conduct under Arkansas Rule of Appellate Procedure-Civil 11. I also agree that he is not entitled to a fact-finding hearing under Appellate Rule 11. I further agree that an Appellate Rule 11 sanction of striking most of his brief is warranted because Mr. Stilley has filed a frivolous matter in this court. I would not, however, strike that portion of Mr. Stilley’s brief which suggests recusal of this court’s members due to a financial interest in the subject matter. Finally, I agree that this court lacked original jurisdiction to hear his illegal exaction cause of action brought against the members of this court. We appropriately dismissed that claim.

On recusal, Mr. Stilley has requested a declaratory judgment from this court on his proposed Ballot Title and Popular Name concerning a proposed amendment to cap the salaries of all state officers and employees at $100,000 and fringe benefits at 25% of that salary. The Ballot Title and Popular Name have been approved by both the Secretary of State and the Attorney General, as required by Ark. Code. Ann. § 7-9-501 to -506 (Repl. 2000). That issue has not been dismissed by this court. It is still viable and awaits this court’s decision.

I first believe that while Mr. Stilley is not entitled to a fact-finding hearing regarding recusal of the members of this court under Appellate Rule 11, he is entitled to five minutes to argue his renewed motion that the members of this court recuse due to a financial interest in the subject matter of the proposed amendment. An opportunity to be heard on this matter is fundamental due process. We routinely allow movants five minutes to argue any motions prior to oral arguments at our Thursday sessions of court. We allowed Mr. Stilley the same privilege in September 2001 to argue that this court should recuse in a different matter. Stilley v. James, 346 Ark. 28, 53 S.W.3d 524 (2001) (per curiam). I would similarly grant him five minutes to be heard on this recusal motion on the Ballot Tide issue involving capping our salaries.

Secondly, Mr. Stilley, in his renewed motion for recusal, counters this court’s first opinion in White v. Priest, 348 Ark. 135, 73 S.W.3d 572 (2002), by pointing to the fact that the Governor of this state, who is authorized to appoint special justices under the State Constitution following recusal, does not have a direct conflict of interest in this matter because he makes less than $100,000. Thus, the argument goes, the Governor is not suffering under the same disability as the members of this court, and the Rule of Necessity, which requires otherwise disqualified judges to sit when there is no replacement judge available, does not apply. Simply stated his argument is: Because the Governor is not directly affected by the proposed initiative, but only certain employees of the Executive Branch are, the Governor does not suffer from a disabling conflict of interest, comparable to the members of this court, which prevents him from appointing special justices to replace us. Again, I believe that Mr. Stilley should have the opportunity to argue this issue before this court. In today’s opinion, the majority addresses Mr. Stilley’s Rule of Necessity argument in a footnote and refers to other state officers and employees who make over $100,000 a year. At this juncture, I am not convinced that the Governor has a conflict of interest comparable to that of this court. Certainly, special justices appointed by the Governor and sitting on this case would not have the conflict of interest that this court has. The majority should also address the difference in the federal judiciary which has no mechanism for appointment of special judges. The Rule of Necessity obviously applies in federal judicial salary matters; however, our situation in Arkansas, where we do have an appointment process, is different.

Amendment 80, which recently amended our State Constitution with a new Judicial Article, reads:

No Justice or Judge shall preside or participate in any case in which he or she might be interested in the outcome, in which any party is related to him or her by consanguinity or affinity within such degree as prescribed by law, or in which he or she may have been counsel or have presided in any inferior court.

Ark. Const. Amend. 80, § 12. The following section provides for appointment of special justices by the Governor of the State when a justice of our court disqualifies. Ark. Const. Amend. 80 § 13(A). My research has developed no case where the Rule of Necessity has been applied when a process exists for the appointment of a special judge to sit for the disqualifying judge. It occurs to me that the Rule of Necessity would only come into play if the Governor determined he had a conflict and could not appoint special justices.

Recusal is a matter left largely to the discretion of the individual judge. SEECO, Inc. v. Hales, 341 Ark. 972, 22 S.W.3d 157 (2000); U.S. Term Limits, Inc. v. Hill, 315 Ark. 685, 870 S.W.2d 383 (1994) (motion to recuse denied). I therefore recuse and will not participate in the Ballot Title issue on capping the salaries of all government employees at $100,000. My reason for recusal is solely based on my financial interest in the subject matter of the proposed amendment and is not due to any other reason raised by Mr. Stilley. I request Chief Justice Arnold to request that the Governor appoint a special justice as my replacement for this Ballot Title issue only.


author: Robert L. Brown, Justice.

text:
    Robert WHITE v. Sharon PRIEST, in Her Official Capacity as Secretary of State of the State of Arkansas, and Mark Pryor, in His Official Capacity as Attorney General of Arkansas
    No. 02-284
    May 23, 2002
   SUPPLEMENTAL OPINION ON RECUSAL

Robert L. Brown, Justice.

On Friday, May 17, 2002, I issued an opinion in which I recused from sitting on the proposed constitutional amendment and Ballot Title which would cap the salaries of officers and employees of the state government at $100,000. My reason for doing so was that should the amendment pass, it would have a direct financial impact on me as it would reduce my salary by about twenty percent. I further disagreed with the majority that the Governor of the State has a comparable conflict of interest to mine and is foreclosed from making an appointment for a special justice in this case. My sole reason for recusal was my financial interest in the subject matter of the Ballot Tide.

Mr. White has also proposed a second unrelated constitutional amendment and Ballot Title dealing with the State’s penitentiary system under the same case number. It was not my intention to recuse on this discrete matter because it involved an entirely different proposed constitutional amendment.

However, there has been no motion to sever the two proposed constitutional amendments and treat them as different cases. Nor has the court decided that it will do so on its own motion. The net result of this is that because the two proposed constitutional amendments will be considered by the court at one time as one case, I must also recuse from participation in the proposed constitutional amendment that deals with the State’s penitentiary system.

As I stated last week, our State Constitution provides that a justice shall not sit in a matter in which he or she is “interested.” Ark. Const. amend. 80, § 12. It further provides that in the event of such disqualification, the Chief Justice shall request that the Governor of the State appoint a special justice to sit on the case involved. Ark. Const, amend. 80 § 13.

I therefore request the Chief Justice, pursuant to Amendment 80, section 13, of the State Constitution of Arkansas, to appoint a special justice to sit for me in this case to decide the sufficiency of both the proposed salary-cap amendment and the proposed penitentiary amendment.


author: Wh. "Dub" Arnold, Chief Justice. ANNABELLE CLINTON IMBER, Justice,

text:
    Clyde EASON, Robert Tacker, Donna S. Tacker, and Arkansas Game and Fish Commission v. Robert FLANNIGAN, Jr., Cindy Flannigan, Mike Hook, and Karen Hook
    01-507
    75 S.W.3d 702
    Supreme Court of Arkansas
    Opinion delivered May 23, 2002

      James F. Goodhart and James B. Watson; and Snellgrove, Langley, Lovett & Culpepper, by: Stanley R. Langley and D. Todd Williams, for appellees.
   Wh. "Dub" Arnold, Chief Justice.

Chiefjustice. This case a quiet-title action. We do not reach the merits raised in the appeal because the trial court’s order fails to comply with Arkansas Rule of Civil Procedure 54(b).

Appellees Robert Flannigan Jr., Cindy Flannigan, Mike Hook, and Karen Hook (hereinafter “Flannigan”) filed suit against the State of Arkansas, Arkansas Game and Fish Commission (hereinafter “AGFC”) in Craighead County Chancery Court, Eastern District. Flannigan requested that title to Lots 1 and 4 of Section 23, Township 15 North, Range 6 East (hereinafter “Lots”), in Craighead County, Arkansas, be quieted and confirmed in Flannigan, that an injunction be issued against AGFC, and that any existing or potential adverse claims to the property be canceled and declared a nullity. AGFC filed a response and counterpetition denying Flannigan’s ownership or possession of Lots, and claiming that AGFC had record title ownership of the lots by virtue of United States Bureau of Land Management (hereinafter “BLM”), Patent No. 1238004, issued to AGFC on March 5, 1965, and duly recorded in the records of Craighead County. AGFC also asserted that it had been in sole and exclusive possession of said Lots since issuance of the patent; that the patent contained a reversionary clause in favor of the United States prohibiting any transfer of title or control of the lands to another; that no conveyance of the lands had ever been made by AGFC; that the property had been listed on the Craighead County tax books in error; and that, as a matter of law, adverse possession could not run against the United States or the State of Arkansas. AGFC prayed that title to Lots be quieted and confirmed in AGFC and that Flannigan be enjoined from exercising or attempting to exercise any ownership rights over the property.

Flannigan replied, denying all of AGFC’s allegations and pleading affirmatively that the United States had previously issued a Swamp Lands Patent that covered the Lots and, therefore, had no right, title or interest in the property at the time it issued the patent to AGFC.

At this same time, Flannigan filed a third-party complaint against Clyde Eason, Robert Tacker, and Donna S. Tacker (hereinafter “Eason”), asserting that Eason had conveyed to Flannigan the Lots by warranty deed dated August 13, 1998, guaranteeing good title, and that Eason should be responsible to Flannigan for any damages that they might suffer as a result of the counterclaim by AGFC. Flannigan contended they acquired title from Eason, who acquired title from the Commission of State Land by a limited warranty deed dated September 17, 1992, after the lands had been forfeited for unpaid taxes. Eason answered the third-party complaint admitting that they had previously conveyed the property to Flannigan by warranty deed and that, at the time of the conveyance, they had fee simple title to the property, but denied all other allegations and prayed for dismissal of the complaint.

AGFC filed a motion for summary judgment, or alternatively a motion to join a party necessary for just adjudication, along with supporting briefs asserting that it was entitled to summary judgment in its favor as a matter of law by virtue of its title conveyed through the 1965 Patent from BLM. AGFC asserts that it acquired title by a patent issued from the BLM in 1965. AGFC submitted, also, undisputed evidence that the Lots had been excluded from the 1856 Swamp Lands Patent cited in Flannigan’s Answer to AGFC’s counterpetition, and that title had remained in the United States until BLM issued the patent to AGFC in 1965. If summary judgment was not granted, AGFC requested that the trial court order that the United States be joined as a party to the action, as required under Rule 19(a) of the Arkansas Rules of Civil Procedure, since BLM had specifically retained a reversionary interest in the Lots through the 1965 patent and was a necessary party to resolve the ligation.

The trial court decided to take AGFC’s motions under advisement and to proceed with submission of additional proof by the parties. Following the trial, the trial court requested the parties to submit posttrial briefs. In AGFC’s posttrial brief, AGFC reasserted that Flannigan could not be granted the relief they requested without the joinder of the United States as a defendant, since BLM had clearly reserved certain ownership interests to the subject property in the 1965 Patent issued to AGFC, including reservations of the minerals interest and reversionary interest in the event AGFC failed to comply with the provisions of an approved development and management plan, or otherwise attempted to transfer title or control of the property without the consent of the United States.

The trial court issued a letter opinion in which it found that “the evidence in this case reveals that the predecessors in title to plaintiffs paid the taxes on the lands in question from 1992 forward.” Based upon that evidence, the provisions of Ark. Code Ann. § 18-11-102, and the holding in Horn v. Blaney, 268 Ark. 597, 597 S.W.2d 109 (1980), the trial court concluded that the title to the property in dispute should be vested in Flannigan. The trial court further stated that the court saw “no need to rule upon the motion to join BLM since the bureau had divested itself of title by virtue of the 1965 patent.” The letter opinion was subsequently made a part of the Quiet Title Decree that quieted and confirmed title in the Flannigan’s.

Under Ark. R. Civ. P. 54(b), when multiple parties are involved in an action, the lower court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. The trial court made no such express determination here. Inasmuch as the trial court’s order did not comply with Rule 54(b), no final judgment has been entered and no appeal may be taken.

An order is not final when it adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000); Stockton v. Sentry Ins., 332 Ark. 417, 965 S.W.2d 762 (1998). See also Ark. R. Civ. P. 54(b). The underlying policy of this rule is to avoid piecemeal appeals. Koonce, supra. Even though an issue on which a court renders a decision might-be an important one, an appeal will be premature if the decision does not, from a practical standpoint, conclude the merits of the case. Koonce, supra; Doe v. Union Pac. R.R., 323 Ark. 237, 914 S.W.2d 312 (1996). The proceedings in the case before us were flawed because the United States was not given notice of the petition to quiet title, and was not made a party. Arkansas Code Annotated sections 18-60-501-505 (1987) provide the statutory framework for actions to quiet title. Specifically, Ark. Code Ann. § 18-60-503 (1987) provides the procedure by which notification must be given to all persons who claim an interest in the disputed land. The statute reads in pertinent part:

(a) Upon the filing of the petition [to quiet title], the clerk of the court shall publish a notice of the filing of the petition on the same day of each week, for four (4) weeks in some newspaper published in the county. . . . The petition shall describe the land and call upon all persons who claim any interest in the land or Hen thereon to appear in the court and show cause why the title of the petitioner should not be confirmed.

Here, nothing in the record reflects compliance with Ark. Code Ann. § 18-60-503, and because of the failure to give notice to the record owner, neither AGFC nor Flannigan were able to make a prima facie case to quiet title.

Turning to the third-party complaint against Eason, this court need not address the issue concerning the merits of such case. The third-party complaint is coupled with the main complaint, therefore is likewise dismissed. Eason will have the opportunity to defend the complaint if future proceedings arise.

We conclude that the only disposition that can be made is to dismiss this cause for failure to comply with the dictates of Rule 54(b). Because the record reflects the trial judge did not enter a final order in this matter, we agree with Arkansas Game and Fish Commission that this appeal should be dismissed without prejudice.

Reversed and dismissed.

Brown, Imber, and Thornton, JJ., concur.

ANNABELLE CLINTON IMBER, Justice,

concurring. I concur. The trial court’s quiet-title decree should be reversed and the case dismissed pursuant to Arkansas Rule of Civil Procedure 19 (2002). Appellees, Robert Flannigan, Jr. Cindy Flannigan, Mike Hook, and Karen Hook, (“Flannigan”), petitioned to quiet title and to enjoin the Arkansas Game and Fish Commission (“AGFC”) from any attempt to exercise authority, ownership, or right of possession over the subject lands. Flannigan’s prayer for relief requested that “title to this property be confirmed, quieted, and vested in them, that any existing or potential adverse claims to the property, particularly any claims of Game and Fish, Defendant herein, be cancelled and declared a nullity, for their costs and for all other proper relief.” (Emphasis supplied.) Thus, Flannigan sought to quiet title as against all the world and not merely the AGFC.

The trial court’s order purports to grant Flannigan all the relief that he requested: “title to the property is hereby quieted and confirmed in the Plaintiffs Robert Flannigan, Cindy Flannigan, Mike Hook and Karen Hook; that the claims of all other persons and entities, including the Arkanasas Game and Fish Commission, whatsoever are hereby extinguished and declared null and void.” In concluding “that title to the property should be vested in plaintiffs [Flannigan],” the trial court specifically found that the United States Bureau of Land Management (“BLM”) “has divested itself of title by virtue of the 1965 patent.” The trial court’s ruling in this case does not present an example of a judgment being entered as to one or more but fewer than all the claims or parties under Arkansas Rule of Civil Procedure 54(b). Instead, this case presents an example of the failure to join a necessary party under Ark. R. Civ. P. 19(a) in an in rent action.

The trial court’s ruling is erroneous because it is based on the faulty premise that BLM need not be joined as a necessary party in an in rem proceeding. In this case, BLM retained a reversionary interest if AGFC ever attempted to alienate the land, as well as present possessory rights in the form of easements and encumbrances. For the trial court to be able to grant the relief prayed for, that is, the extinguishment of all existing or adverse claims on the property, BLM was indeed a necessary party to the suit under Ark. R. Civ. P. 19(a), which states in pertinent part:

(a) Persons to Be Joined If Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or, (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter, impair or impede his ability to protect that interest, [. . .] If he has not been joined, the court shall order that he be made a party. If he should join as a plaintiff, but refuses to do so, he may be made a defendant; or, in a proper case, an involuntary plaintiff.

Ark. R. Civ. P. 19(a) (2002)(emphasis supplied). Any party whose absence results in any of the problems identified in either subsections (a)(1) or (a)(2) is a party whose joinder is compulsory if feasible. As already noted, BLM possessed both present and future interests in the property. A holding that joinder is compulsory under Rule 19(a) is a necessary predicate to a court’s discretionary determination under Rule 19(b) that the case must be dismissed because joinder of the party is not feasible and the party is indispensable to the just resolution of the controversy. See Ark. R. Civ. P. 19(b) (2002).

It is clear that Flannigan’s pleading represents a quiet-title action as against the whole world. Flowever, because the United States has an interest relating to the subject of the action, the trial court lacked jurisdiction to hear this case. A quiet-title action in which the United State has an interest may only be asserted by virtue of the 28 U.S.C. § 2409(a) (West 2002) and 28 U.S.C. § 1346(f) (West 2002), which provide, respectively, a waiver of sovereign immunity and the establishment of exclusive jurisdiction in the federal district courts. Section 1346(f) states, “[t]he district court shall have exclusive jurisdiction of civil actions under section 2409(a) to quiet title to an estate or interest in real property in which an interest is claimed by the United States.” Id. Thus, the jurisdiction to hear this action belongs exclusively in the United States District Court. In California v. Arizona, 440 U.S. 59 (1979), the United States Supreme Court held that, with respect to quiet-title actions involving land in which the U.S. Government maintains an interest, state courts do not have jurisdiction. The Court stated:

The legislative history of § 1346(f) is sparse, but the intent of Congress seems reasonably clear. The congressional purpose was simply to confine jurisdiction to the federal courts and to exclude the courts of the States, which otherwise might be presumed to have jurisdiction over quiet-title suits against the United States, once its sovereign immunity had been waived. Charles Dowd Box Co. v. Courtney, 368 U.S. 502; Claflin v. Houseman, 93 U.S. 130, 136. The legislative history shows no intention to divest this Court of jurisdiction over quiet-title actions against the United States in cases otherwise within our original jurisdiction. We find, therefore, that § 1346(f), by vesting “exclusive original jurisdiction” of quiet-title actions against the United States in the federal district courts, did no more than assure that such jurisdiction was not conferred upon the courts of any State.

Id. at 66-68. This case should have been filed in federal district court from the outset.

For the above-stated reasons, the trial court’s quiet-title decree should be reversed and the case dismissed. The trial court lacked jurisdiction over a quiet-title action seeking to have all adverse claims extinguished, including that of the United States, a necessary party whose interest can only be adjudicated in federal court.

Brown and Thornton, JJ., concur.


author: Wh. "Dub" Arnold, Chief Justice.

text:
    Grant HARASYN and Shelley Harasyn v. The ST. PAUL GUARDIAN INSURANCE COMPANY
    01-1123
    75 S.W.3d 696
    Supreme Court of Arkansas
    Opinion delivered May 23, 2002

      Stephen Lee Wood, P.A., by: Stephen Lee Wood, for appellants.

      Ledbetter, Cogbill, Arnold & Harrison, LLP, by: J. Michael Cogbill and Rebecca D. Hattabaugh, for appellee.
   Wh. "Dub" Arnold, Chief Justice.

Justice. Appellant Harasyn and Shelley Harasyn brings this appeal from Benton County Circuit Court where the trial court granted appellee St. Paul Guardian Insurance Company’s motion for summary judgment. We agree with the trial court, and thus affirm.

On October 21, 1998, appellant Shelley Harasyn was injured at her place of business, Stogie’s Cigars in Rogers, when a car driven by Donald Carlo crashed through the wall. Following the tender of Carlo’s liability limits, Harasyn settled with him and reported her injuries to her insurance company appellee St. Paul Guardian Insurance Company. She requested benefits under both the Underinsured Motorist and Personal Injury Protection coverages of her policy. However, St. Paul denied coverage based upon an exclusion which stated, in pertinent part:

Pak II doesn’t cover accidents happening on your business premises. And we do not cover any liability or claims connected with your business, profession, or occupation. For example, malpractice claims. But we do cover business use of the private passenger automobiles listed on the Coverage Summary.

(Emphasis added.)

The Harasyns then filed suit against St. Paul for benefits due under the policy and for bad faith. St. Paul moved for summary judgment on all counts and the trial court granted the motion. In its order, the trial court found:

2. The St. Paul PAK II Insurance Policy excluded any occurrences happening on “your business premises.” The Plaintiff, Shelly Harasyn, was injured while she was working at a cigar store operated by H & K Corporation, of which she and her husband were the sole shareholders.
3. The business premises exclusion is clear and unambiguous and is defined in the policy. Under the definition, the Plaintiff was injured on her business premises, and, as such, the injuries and damages claimed by the Plaintiffs in this case are specifically excluded by the PAK II Insurance Policy.
4. The business premises exclusion is clearly set forth in the policy and the insured is warned on Page 1 to refer to the Major Exclusions on Page 17 to determine policy coverage. Further, on Page 17 of the policy, it is noted that the Major Exclusions apply to all sections of the policy and that any exclusions which are specific to a particular portion of the' policy will be stated in that policy section. The first “Major Exclusion” listed is the business premises exclusion which applies to all sections of the policy. Further, on Page 7 of the Arkansas amendment to the PAK II policy, the business premises exclusion is again listed as a major exclusion.
5. The insurance policy as written is clear and unambiguous and excludes the Plaintiff’s injuries and damages under the business premises exclusion.
6. The business premises exclusion is not violative of the public policy of the State of Arkansas. Arkansas Courts have consistendy held that exclusions, such as the business premises exclusion contained in this policy, will be strictly enforced and that such exclusions do not violate the public policy of this state.
7. The actions taken by St. Paul in this case do not constitute waiver of its rights to deny coverage and St. Paul did not act in bad faith in denying this claim.

(Emphasis added.)

The Harasyns argue that the trial court’s order granting summary judgment should be reversed. After considering Harasyn’s arguments and the applicable controlling authority, we decline to reverse the trial court.

I. Standard of review

Appellant Harasyn challenges the trial court’s order granting appellee St. Paul’s motion for summary judgment. In reviewing summary-judgment cases, we need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party, St. Paul, left a material question of fact unanswered. Notably, the moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. However, the moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (2000); Chamberlin v. State Farm Mutual Auto., 343 Ark. 392, 36 S.W.3d 281 (2001); Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 453, 966 S.W.2d 241, 243 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Chamberlin, supra; Dillard v. Resolution Trust Corp., 308 Ark. 357, 359, 824 S.W.2d 387, 388 (1992). If a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Chamberlin, supra; Collyard v. American Home Ins. Co., 271 Ark. 228, 230, 607 S.W.2d 666, 668 (1980). Here, the parties agree that there are no disputed facts. Accordingly, our review must focus on the trial court’s application of the law to those undisputed facts.

II. Public Policy

Appellant Harasyn argues that Arkansas Code Annotated § 23-89-209 does not set forth any exclusion for Underinsured motorist coverage. Harasyn contends that while insurance companies undoubtedly have the right to limit coverage through exclusions, such limits are confined to the boundaries of the governing statute. Appellant Harasyn asserts that coverage follows the person, not the automobiles insured by the policy and that the coverage is effective “24 hours a day, 365 days a year.” Thus, the appellants conclude, the trial court erred in holding that the Major Exclusion was not void as a matter of public policy as applied to the Underinsured motorist coverage.

Unless the legislature has specifically prohibited exclusions, courts will not find the restrictions void as against public policy. An exclusion to coverage cannot violate public policy when one considers that a driver can opt out of the coverage altogether. In Clampit v. State Farm Mut. Auto Ins. Co., 309 Ark. 107, 828 S.W.2d 593 (1992), this court held that an exclusion to Underinsured coverage did not violate the public policy of the state. There is no support for the argument that the legislature, in enacting the statute, intended to provide coverage for persons who are not occupying the insured motor vehicle, but are working inside their own business premises.

Arkansas Code Annotated § 23-89-209 sets forth the provisions for Underinsured motorist coverage. Subsection (a)(3) describes the coverage to be available through UIM:

(3) The coverage shall enable the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injuries to or death of an insured which the insured is legally entitled to recover from the owner or operator of another motor vehicle whenever the liability insurance limits of such other owner or operator are less than the amount of the damages incurred by the insured.

Ark. Code Ann. § 23-89-209(a)(3) (Repl. 1999).

In Clampit v. State Farm Mut. Auto. Ins. Co., 309 Ark. 107, 828 S.W.2d 593 (1992), this court stated that underinsured coverage applies when the tortfeasor has at least the amount of insurance required by law, but not enough to fully compensate the victim. Furthermore, the Underinsured motorist coverage statute estabhshes the public policy of the State of Arkansas with regard to UIM coverage. Majors v. American Premier Ins. Co., 334 Ark. 628, 977 S.W.2d 897 (1998). Although Underinsured motorist coverage is statutorily prescribed, this court has upheld prior exclusions under the current and prior versions of the statute. Chamberlin v. State Farm Mut. Auto. Ins. Co., 343 Ark. 392, 36 S.W.3d 281 (2001) (holding that State Farm’s unambiguous owned-but-not-insured exclusion was valid and not void as against public policy); Clampit v. State Farm, supra. Where an insurance provision is in accordance with a statute, it cannot run contrary to public policy. Majors v. American Premier, supra.

Here, the policy language was quite clear; the Policy sets forth the Major Exclusions, including the one at issue. It states that “[t]he major exclusions listed here apply to all sections of the policy. Other restrictions that apply only to particular sections will appear in the section to which they apply.” On page one of the General Policy Information directs the policyholder to read the Major Exclusions found on page seventeen. Thus, the policy language is clear and unambiguous. Additionally, there is no merit in Harasyn’s argument that the term “whenever” dictates Underinsured benefits in all instances. Clearly, the court has found this not to be the case, as evidenced by its prior holdings of other exclusions. Here, as in Chamberlin, where the parties are free to contract on terms, and so long as the policy language is clear and not violative of state law, this court will enforce the agreement as written.

II. Personal Injury Protection (PIP)

The Harasyns argue that Arkansas Code Annotated § 23-89-202 (Repl. 1999] sets forth no exclusions from personal injury coverage. They further claim that general exclusions which are applicable to the greater part of a policy are not necessarily applicable to personal injury protections provisions. The Harasyns contend that the plain language of the statute indicates the Legislature’s intent that personal injury protection be afforded whenever an insured is injured by a motor vehicle.

However, coverage under § 23-89-202 is not applicable as § 23-89-204 (Repl. 1999) prohibits coverage to Ms. Harasyn. Shelley Harasyn was neither an occupant of an insured vehicle, nor struck by an insured vehicle. She is not entitled to personal injury protection under the statute, nor does the business premises exclusion to that coverage violate public policy. Furthermore, an exclusion to PIP coverage cannot violate public policy when one considers a driver may waive coverage altogether.

The business-premises exception applies to all portions of the policy, including PIP. Thus, the trial court did not err where Harasyn was injured on her business’s premises and sought benefits from her policy, which included an exclusion for business-premises-based claims.

III. Unambiguous Language

Appellant Harasyn argues that the Major Exclusion at issue is ambiguous when considered with the rest of the policy issued to them. They claim that UIM and PIP are not liability or property coverages; thus, they contend, they are not subject to the exclusions as evidenced by the reference at the beginning of their policy:

Be sure to read the ‘Major Exclusions’ (page 17) and ‘Other Provisions’ (page 21) sections to fully understand how the liability and property coverage of PAK II are applied.

The Haraysns assert that while one could reasonably interpret the “Major Exclusion” as applying to “all” sections of the PAK II policy, one could also reasonably interpret the entire policy to mean that the “Major Exclusion” applies only to liability and property coverages and not to personal coverages.

However, the policy in this case will not be construed to provide coverage for a plainly excluded risk, for which no premium was paid. The language at the beginning of the “Major Exclusions” states:

The major exclusions listed here apply to all sections of the policy. Other restrictions that apply only to particular sections will appear in the section to which they apply.

Here, the Harasyns do not argue that the language of the exclusion itself is unclear; instead, they argue that it is unclear whether the business-premises exclusion listed under the Major Exclusions applies to all sections of the policy, including the UIM and PIP. The UIM coverage is under the “Personal Liability Coverage” and the PIP is contained in an endorsement to the policy. Regarding PIP, it contains the following language:

With respect to coverage provided by this endorsement, the provisions of the policy apply unless modified by this endorsement.

Because the language used in the business premises exception is clear, the trial court was correct.

In Elam v. First Unum Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001), this court set forth its standard for reviewing an insurance policy’s language. If the language of the policy is unambiguous, we will give effect to the plain language of the policy without resorting to the rules of construction. Elam, supra; Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000); Western World Ins. Co. v. Branch, 332 Ark. 427, 965 S.W.2d 760 (1998). On the other hand, if the language is ambiguous, we will construe the policy liberally in favor of the insured and strictly against the insurer. Id. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. Norris, 341 Ark. 360, 16 S.W.3d 242; Smith v. Prudential Prop. & Cas. Ins. Co., 340 Ark. 335, 10 S.W.3d 846 (2000).

Here, the trial court specifically found that the business-premises policy exclusion was clear and unambiguous. The exclusion, in plain language, excluded coverage for accidents occurring on the insured’s business premises. Because the language is plain, there is no need to resort to the rules of construction. Harasyn’s accident occurred at Stogie’s Cigars, of which she was an owner. Because the accident took place on her business premises, Harasyn’s PAK II policy does not provide coverage. Accordingly, because the terms of the exclusion are clear and unambiguous, the policy language controls, and absent statutory strictures to the contrary, the exclusionary term should be generally enforced according to its terms. Smith v. Shelter Mut. Ins. Co., 327 Ark. 208, 937 S.W.2d 180 (1997).

IV. Waiver

The Harasyns argue that St. Paul waived its right to claim the “Major Exclusion” when it told them that it was affording “med pay” coverage. The Harasyns assert that St. Paul’s notes indicate that Harasyn was injured at work, thus they cannot now claim ignorance of the facts or that they unknowingly waived this purported defense. The Harasyns conclude this is a fact question proper for the jury.

However, the facts of the case do not establish any actions on the part of St. Paul that would constitute waiver nor any reliance on the part of the Harasyns. The waiver can only be applied to bar the defense of noncoverage when the conduct on the part of the insurer misleads the insured into believing that coverage exists, when it does not, and the insured takes action in reliance on the misrepresentation. Following an investigation, the adjuster contacted the Harasyns and advised them that no coverage was available due to the exclusion. These facts establish that St. Paul took no actions that would constitute waiver.

In Peoples Protective Life Ins. Co. v. Smith, 257 Ark. 76, 514 S.W.2d 400 (1974), this court noted that coverage in a contract of insurance cannot be extended by waiver or estoppel. The doctrine of waiver or estoppel cannot be given the effect of enlarging or extending the coverage as defined in the contract, nor can it create a contract of insurance, since a cause of action cannot be based on a waiver. In Hartford Fire Insurance Co. v. Smith, 200 Ark. 508, 139 S.W.2d 411, we held, the doctrine of waiver and estoppel cannot be asserted to extend coverage under a contract in which it was excluded by specific language. Miller v. Illinois Bankers’ Life Ass’n, 138 Ark. 442, 212 S.W. 310, 7 A.L.R. 378; Mutual Ben. Health & Acc. Ass’n v. Moore, 196 Ark. 667, 119 S.W.2d 499; John Hancock Life Ins. Co. v. Henson, (199 Ark. 987), 136 S.W.2d 684.

The coverage desired by the Harasyns was clearly excluded; thus, waiver is not available to extend the coverage merely because the insurer’s agent thought coverage might be available.

Therefore, there are no grounds to justify a reversal of the trial court’s grant of summary judgment. We hold that the trial court did not err in finding that St. Paul was entitled to a judgment as a matter of law.

Affirmed.

Glaze, J., not participating.