author: DONALD L. CORBIN, Justice.

text:
    Raymond Anthony MONDAY v. CANAL INSURANCE COMPANY
    01-1038
    73 S.W.3d 594
    Supreme Court of Arkansas
    Opinion delivered May 2, 2002

      Wright, Chaney, Berry, Daniel, Hughes & Moore, P.A., by: Rodney P. Moore, for appellant.

      Matthews, Sanders & Sayes, by: Mará Talbot Liles and Roy Gene Sanders, for appellee.
   DONALD L. CORBIN, Justice.

This case presents an issue of first impression: Whether Ark. Code Ann. § 23-89-209 (Repl. 1999), requires an insurer to offer underinsuredmotorist coverage in a commercial automobile liability policy. The Hot Spring County Circuit Court ruled that it did not and granted summary judgment to Appellee Canal Insurance Company. Appellant Raymond Anthony Monday now appeals the order of summary judgment. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(b)(1). We affirm.

The facts of this case are not in dispute. On August 2, 1999, Monday was driving a truck for his employer, Alygar Trucking, Inc., when he was struck by a vehicle driven by Jada Montgomery. Monday was seriously injured in the accident, and he incurred medical expenses in excess of $40,000. Monday succeeded in collecting the limits of Montgomery’s liability insurance, in the amount of $25,000. However, because his damages exceeded the amount recovered from Montgomery, Monday filed a claim with Canal for underinsured-motorist benefits. Canal denied Monday’s claim on the ground that Alygar’s policy did not contain underinsured-motorist coverage. Monday then filed suit in the circuit court, claiming that Canal was required to offer Alygar underinsured-motorist coverage pursuant to section 23-89-209. Because Canal had failed to do so, Monday asserted that such coverage should be implied as a matter of law and that Canal should be ordered to pay his claim.

Both parties filed motions for summary judgment, asserting that the only issue was one of law regarding the interpretation of section 23-89-209. Canal argued that section 23-89-209(a) only requires an insurer to offer underinsured-motorist coverage when issuing “private passenger automobile liability insurance.” Canal asserted that it was not required to offer such coverage to Alygar because the policy issued was a commercial policy, covering nine trucks and tractors used in Alygar’s business. In support of its motion, Canal offered the affidavit of its senior vice president, Carleton Dunn. Dunn stated that Canal is a commercial transportation speciality insurer, and that the policy issued to Alygar was a standard commercial truck liability policy. Dunn also stated that Canal was not authorized to insure private-passenger vehicles because it does not have private-passenger rates filed with any insurance department in the nation.

In contrast, Monday argued that the focus of section 23-89-209 is on the type of vehicle insured, not the type of policy issued. He argued that the type of vehicle that he was driving at the time of the accident, a dual-wheeled pickup truck, is a private-passenger automobile. He distinguished such private-passenger automobiles from public-owned, common-carrier vehicles, such as buses or other forms of mass transit. He thus asserted that because the policy issued to Alygar covered pickup trucks, Canal was required to offer Alygar underinsured-motorist coverage regardless of whether the policy was a commercial one.

The trial court agreed with Canal and concluded that the legislature did not intend the underinsured-motorist statute to apply to commercial automobile liability policies covering vehicles that were used for commercial purposes. The trial court viewed the statute as being applicable only to those liability policies issued to individuals for personal automobiles. Accordingly, based on its construction of section 23-89-209, the trial court granted summary judgment to Canal.

This court has repeatedly held that summary judgment, although no longer viewed as a drastic remedy, is to be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See, e.g., Foreman Sch. Dist. No. 25 v. Steele, 347 Ark. 193, 61 S.W.3d 801 (2001); City of Barling v. Fort Chaffee Redev. Auth., 3A1 Ark. 105, 60 S.W.3d 443 (2001); Thomas v. Stewart, 347 Ark. 33, 60 S.W.3d 415 (2001). In the present case, the facts are undisputed. Indeed, both parties filed cross motions for summary judgment. As such, the case was decided purely as a matter of statutory interpretation.

We review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. See Mississippi River Transmission Corp. v. Weiss, 347 Ark. 543, 65 S.W.3d 867 (2002); Mayberry v. Flowers, 347 Ark. 476, 65 S.W.3d 418 (2002). Thus, although we are not bound by the trial court’s construction, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. The basic rule of statutory construction is to give effect to the intent of the legislature. Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001); Fewell v. Pickens, 346 Ark. 246, 57 S.W.3d 144 (2001). In determining the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute must be construed so that no word is left void or superfluous and in such a way that meaning and effect are given to every word therein, if possible. Id. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no reason to resort to rules of statutory interpretation. Id. If, however, the meaning of a statute is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id. Statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. Id.

The issue here is whether section 23-89-209 requires an insurer to offer underinsured-motorist coverage when issuing a commercial automobile liability policy. The statute provides in pertinent part:

(a)(1) No private passenger automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicles in this state shall be delivered or issued in this state or issued as to any private passenger automobile principally garaged in this state unless the insured has the opportunity, which he may reject in writing, to purchase underinsured motorist coverage. [Emphasis added.]

This provision was originally enacted by the General Assembly as Act 335 of 1987. Act 335 was titled “AN ACT to Require that Insurers Offer Underinsured Motorist Coverage to Insureds Purchasing Private Passenger Automobile Liability Policies; and for Other Purposes.” The initial codification of Act 335 did not limit its scope to insurers issuing “private passenger automobile liability insurance.” Rather, the statute’s requirements were originally applicable to “[e]very insurer writing automobile liability insurance.” See Ark. Code Ann. § 23-89-209(a) (Supp. 1987). In Act 1180 of 1993, the General Assembly amended section 23-89-209(a) to specifically apply to insurers issuing “private passenger automobile liability insurance.”

The question then is what is meant by the words “private passenger automobile liability insurance”? Construing this term just as it reads, giving the words their ordinary and usually accepted meaning in common language, we conclude that the language describes a particular type of automobile liability insurance, namely that issued to individuals or families covering their personal automobiles. The words “private passenger automobile liability” obviously modify the word “insurance.” Thus, we agree with the trial court that the focus of the statute is on the type of insurance coverage or policy being issued by the insurer, not on the particular type of vehicle being insured. Commercial automobile liability insurance policies that cover vehicles used for delivering goods or for other business purposes are not included within the parameters of “private passenger automobile liability insurance.” Accordingly, it is of no consequence that the insured vehicle in this case, a dual-wheeled pickup truck, may be used by an individual as a personal vehicle.

Moreover, our holding today is supported by the legislature’s declared intention in passing Act 335: “[T]o Require that Insurers Offer Underinsured Motorist Coverage to Insureds Purchasing Private Passenger Automobile Liability Policies.” (Emphasis added.) We view this as a clear indication that the applicability of the underinsured-motorist statute depends on the type of insurance policy being purchased, not on the particular type of vehicle being insured.

Our conclusion finds further support in related statutes. For example, in Ark. Code Ann. § 23-89-301(5) (Repl. 1999), the legislature distinguished those policies purchased by individuals and families from commercial policies. That section, which is included in the subchapter pertaining to cancellation and nonrenewal, provides in pertinent part:

(5) “Policy” means an automobile liability, automobile physical damage, or automobile collision policy, or any combination thereof delivered or issued for delivery in this state insuring a single individual or husband and wife resident of the same household, as named insured, and under which the insured vehicles therein designated are of the following types only:
(A) A motor vehicle of the private passenger or station wagon-type that is not used as a public or livery conveyance for passengers, nor rented to others', or
(B) Any other four-wheel motor vehicle with a load capacity of one thousand five hundred pounds (1,500 lbs.) or less which is not used in the occupation, profession, or business of the insured, provided however, that this subchapter shall not apply to any policy:
(i) Issued under an automobile assigned risk plan;
(ii) Insuring more than four (4) automobiles; or
(iii) Covering garage, automobile sales agency, repair shop, service station, or public parking place operation hazards[.] [Emphasis added.]

Similarly, Ark. Code Ann. § 23-89-202 (Repl. 1999) demonstrates the legislature’s intent to require certain minimum protections based on the type of coverage or policy issued. That section sets out the minimum requirements for medical and hospital benefits, income-disability benefits, and accidental-death benefits that must be provided by an insurer issuing any “automobile liability insurance policy covering any private passenger motor vehicle.” Thus, the focus of this section is on the type of policy or coverage issued, not on the nature of the vehicle being insured.

In sum, construing the plain language of section 23-89-209(a)(l) together with the stated purpose of the underinsured-motorist statute, we conclude that the legislature intended to require insurers to offer underinsured-motorist coverage when issuing “private passenger automobile liability insurance” policies covering personal or private vehicles. The statute does not require insurers issuing commercial automobile liability policies to offer underinsured-motorist coverage. The undisputed proof in this case demonstrates that the policy issued by Canal to Alygar, Monday’s employer, was a standard commercial truck liability policy, covering a fleet of vehicles used in Alygar’s business. This is not the type of policy to which section 23-89-209 applies. Accordingly, we affirm the trial court’s grant of summary judgment to Canal, as it was not required by law to offer Alygar underinsuredmotorist coverage in conjunction with its commercial automobile liability policy.

We reject Monday’s reliance on this court’s and the court of appeals’ holdings in National Life & Accident Ins. v. Abbott, 248 Ark. 1115, 455 S.W.2d 120 (1970), Horn v. Imperial Cas. & Indem. Co., 5 Ark. App. 277, 636 S.W.2d 302 (1982), and Cole man v. MFA Mut. Ins. Co., 3 Ark. App. 7, 621 S.W.2d 872 (1981). Those cases involved the interpretation of “private passenger automobile” and “automobile” as those terms were used and defined in insurance policies. They did not involve the interpretation of the term “private passenger automobile liability insurance,” as that term is used in the underinsured-motorist statute. Indeed, each of those cases was decided before the legislature enacted the underinsured-motorist statute.

We likewise reject Monday’s reliance on the court of appeals’ decision in Columbia Mut. Ins. Co. v. Estate of Baker, 65 Ark. App. 22, 984 S.W.2d 829 (1999). The issue in that case was whether the uninsured-motorist statute, Ark. Code Ann. § 23-89-403 (Repl. 1999), required an insurer to offer uninsured coverage in conjunction with a garage owner’s liability policy. The holding in that case is not applicable here because the language of section 23-89-403 is decidedly different from that used in section 23-89-209. Section 23-89-403 provides in pertinent part:

(a)(1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto and is not less than limits described in § 27-19-605, under provisions filed with and approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. [Emphasis added.]

Notably missing from this provision are the words “private passenger” as a modifier of the term “automobile liability insurance.” Clearly, the legislature saw fit to require insurers to offer uninsured-motorist coverage whenever any automobile liability insurance policy is issued or delivered. The fact that the legislature chose specifically to require the offering of ««dennsured-motorist coverage only in conjunction with the issuance of “private passenger automobile liability insurance” policies demonstrates its desire to exclude commercial policies from the requirements of section 23-89-209.

Finally, we reject Monday’s contention that subsection (b) of 23-89-209 requires reversal in this case. That section provides:

(b)(1) Underinsured motorist coverage as described in this section shall not be available to insureds nor shall insurers be mandated to offer same unless the insured has elected uninsured motorist coverage as provided by § 23-89-403.
(2) Underinsured motorist coverage shall not be issued without uninsured motorist coverage being issued in combination therewith.

Monday argues that this section requires an insurer to offer under-insured coverage any time that the insured elects uninsured coverage. This argument is misplaced. As stated in the preceding paragraph, uninsured coverage must be offered in conjunction with any type of automobile liability insurance coverage, while underinsured must only be offered with one particular type of automobile liability insurance, namely private-passenger coverage. Thus, we view this provision as requiring only that in those instances where underinsured-motorist coverage must be offered, i.e., when issuing “private passenger automobile liability insurance,” and the insured elects uninsured-motorist coverage, the insurer must offer underinsured coverage in coordination therewith. Accordingly, we affirm the trial court’s grant of summary judgment to Canal.

Imber, J., not participating.


source: Caselaw Access Project

author: JIM HANNAH, Justice. TOM GLAZE, Justice,

license: Public Domain

text:
    Jewell POLK v. STATE of Arkansas
    CR 01-1278
    73 S.W.3d 609
    Supreme Court of Arkansas
    Opinion delivered May 2, 2002

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   JIM HANNAH, Justice.

The State of Arkansas petitions for review of the court of appeals’ partial reversal of Appellant/ Respondent Jewell Polk Jr.’s convictions of possession of a controlled substance with intent to deliver, simultaneous possession of drugs and firearm, and theft by receiving. The court of appeals in Polk v. State, 75 Ark. App. 338, 57 S.W.3d 781 (2001), affirmed Polk’s conviction for possession of a controlled substance with intent to deliver, but reversed his convictions for simultaneous possession of drugs and firearms and theft by receiving.

At 2:30 a.m. on April 22, 1999, Officer Elliot Young of the Little Rock Police Department had a residence under surveillance that was the subject of several complaints alleging that narcotics activity was taking place there. Officer Young observed a 1994 black 530i BMW registered to Clarence Duckworth leave the residence. The car stopped briefly at the Waffle House and remained there for several minutes. Young asked Officer Charles Allen of the Little Rock Police Department, who was in another vehicle, for assistance in watching the car. After Allen saw the car weaving back and forth between the lanes of traffic, he stopped the car. Allen asked Polk, the sole occupant of the car, for his driver’s license, which Allen discovered had expired. Allen cited Polk for improper lane usage and driving with an expired license and impounded the vehicle. Young inventoried the car, and he saw a piece of plastic sticking out above the driver’s sun visor. He pulled the visor down and found a plastic bag containing several pieces of an off-white, rock-like substance later analyzed as 2.804 grams of eighty-five percent cocaine base and procaine. Young also saw a lump in the rear passenger-side floor mat, and underneath the mat he found a loaded .380 semi-automatic handgun that had been reported as stolen. Young further testified that the gun was not visible without moving the floor mat. However, he testified that the lump was “something that jumped out at you.”

The case was tried to the court sitting without a jury. At the conclusion of the State’s case, Polk moved for a directed verdict, contending that there was no showing that he was “ever in actual possession of either the firearm or the drugs.” Polk noted that the cocaine was found behind the sun visor, the gun was underneath a floor mat in the rear floorboard, and the car was registered to another person. The State replied that Polk was the only person in the car and had exclusive control of the vehicle, that the plastic bag was sticking out of the sun visor, which was immediately above Polk’s head, and that the gun was found underneath the rear passenger floor mat, which, the State contended, was the most accessible place in the rear of the car to the driver. The State further noted that the lump was readily discernible by the officers. The court denied the motion.

In his own defense, Polk testified that he borrowed the car from his girlfriend, who he knew did not own the car, so that he could drive somewhere to eat. Polk stated that he drove the car two to three minutes to the Waffle House, where he remained approximately ten minutes while his hamburger and fries were cooking. He was driving back to the house when he was stopped by police. Polk testified that, at most, he was in the car for fifteen minutes. He further testified that he did not know that either a gun or drugs were in the car. Polk, however, admitted that he was a cocaine user and had been using cocaine that night at the house. He further stated that he had previously pled guilty to possession of cocaine and drug paraphernalia but that he did so in those cases because he knew about that cocaine and drug paraphernalia.

At the close of the evidence, Polk again moved to dismiss. Polk noted a number of factors to be considered to establish constructive possession of contraband found in a car when the vehicle is jointly occupied. He pointed out that the car was not his, that he was in the car only a short time, that he did not act suspiciously, and that the handgun was not within his immediate proximity, on the same side of the car, in plain view, on his person, or with his personal effects. Polk further noted that the officers did not testify that he was moving the visor or floor mat when he was driving.

The court denied appellant’s motion. The court noted that while Polk was in the car only a short time, he testified that he used cocaine, and cocaine was found in the car. The court also noted that both the handgun and the cocaine were within easy access. Further, the court noted that Polk was in sole possession and control of the car. The circuit judge convicted Polk of the crimes of simultaneous possession of drugs and firearms, possession of a controlled substance with the intent to deliver, and theft by receiving. The court sentenced him to a total of sixteen years’ imprisonment in the Arkansas Department of Correction.

Polk appealed to the court of appeals and, in a decision issued on October 31, 2001, the court of appeals affirmed the trial court on the charge of possession of a controlled substance, and reversed on the charge of simultaneous possession of drugs and firearms and theft by receiving. The majority determined that Polk’s occupancy of the vehicle was analogous to a joint-occupancy situation, although there were no other occupants in the vehicle, because Polk had only been in the car for a few minutes after borrowing the car from his girlfriend who borrowed it from another person. The dissent concurred with the majority on the possession of a controlled substance conviction, but dissented regarding the simultaneous-possession and theft-by-receiving convictions. The dissent argued that the majority’s use of the “joint occupancy” analysis was misplaced because Polk was alone in the car,- and it was unimportant that his occupancy was merely “transitory” and for a short duration. As such, the dissent asserted that because Polk had control over the car and was in “near proximity” to the loaded pistol, the simultaneous possession charge should stand.

Following this decision, the State filed a petition for review from the court of appeals’s decision reversing the trial court’s ruling on the simultaneous possession of drugs and firearms conviction. The State argued that the court of appeals erred in using a joint-occupancy analysis for a situation involving only one occupant in the car, and that the court’s cited cases support the contention that joint occupancy in the vehicle context necessarily requires occupancy by more than one person. Polk replies that the court of appeals was correct in applying a joint-occupancy analysis because the car was owned by someone other than the defendant, and the gun could have easily been present before Polk took possession of the car. He argues that this situation is no different from those in which roommates occupy a shared apartment or a person visits a friend’s apartment. Therefore, while Polk does not challenge the trial court’s conclusion that he knew about the bag of cocaine above the driver’s sun visor, he does challenge the court’s presumption that he had knowledge of the gun because it was hidden under a floor mat in the back seat. As such, he argues that the court of appeals properly applied joint-occupancy law, and that review is not warranted.

When we grant a petition for review pursuant to Ark. Sup. Ct. R. 2-4, we treat the appeal as if it were filed in this court originally. Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001). It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002); Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001); Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith, supra. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. Only evidence supporting the verdict will be considered. Id.

Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). Such a determination is a question of fact for the fact-finder to determine. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). The credibility of witnesses is an issue for the fact-finder. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. We will disturb the fact-finder’s determination only if the evidence did not meet the required standards, thereby leaving the fact-finder to speculation and conjecture in reaching its verdict. Id. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it. Id.

Generally, it is not necessary for the State to prove literal physical possession of contraband in order to prove possession. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000); Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). Possession of contraband can be proved by constructive possession, which is the control or right to control the contraband. Id.; Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994). In order to prove constructive possession, the State must establish beyond a reasonable doubt that the defendant exercised care, control, and management over the contraband. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); Darrough v. State, 330 Ark, 808, 957 S.W.2d 707 (1997); Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994); Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991). This court has previously explained:

Under our law, it is clear that the State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused, that is, constructively possessed.

Darrough, 330 Ark. at 811. Constructive possession may be established by circumstantial evidence, but when such evidence alone is relied on for conviction, it must indicate guilt and exclude every other reasonable hypothesis. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990). A showing of constructive possession, which is the control or right to control the contraband, is sufficient to prove a defendant is in possession of a firearm. Banks, supra. Constructive possession can be implied where the contraband was found in a place immediately and exclusively accessible to the accused and subject to his control. Crossley, supra.

To date, this court has not determined whether a single occupant in a borrowed car or car owned by another is only subject to the general inquiry for constructive possession, or whether the single occupant may benefit from the increased inquiry afforded those in a joint-occupancy situation. We hold that in such situations, the State need only prove constructive possession of the contraband without including any inquiry into the elements for joint occupancy.

Looking at this case under the constructive-possession inquiry, there was sufficient evidence to link Polk to the drugs in the sun visor and to the handgun in the back seat. Here, Polk himself testified that he had been using the same type of drugs earlier that evening, and that he had a drug problem. He was sitting immediately behind the visor, and the packaging was in plain view. The handgun was in the back seat under the floor mat, and he had access to the gun due to the proximity of the gun to the driver’s seat. Furthermore, according to Polk’s testimony, he was nervous when the police began to follow him from the Waffle House, and he admitted that he began weaving across the lines on the road because he was looking behind him at the police lights as they pulled him over. It is not necessary for the State to prove an accused physically held the contraband in order to sustain a conviction if the location of the contraband was such that it can be said to be under the dominion and control of the accused. Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994); Crossley, supra. The State need only prove constructive possession, and constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the accused and subject to his control. Id. Furthermore, an accused’s suspicious behavior coupled with proximity with the contraband is clearly indicative of possession. Id. Polk was found with a sufficient amount of drugs to warrant a charge for “intent to deliver,” and this court has recognized that firearms are considered a tool of the narcotic’s dealer’s trade, further suggesting that Polk knew of the presence of the loaded gun on the floorboard. See Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995); Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). Here, both the drugs and the firearm were immediately and exclusively accessible to Polk, and we find that he was in possession of both.

Affirmed.

Glaze, J., concurring.

Imber, J., not participating.

TOM GLAZE, Justice,

concurring. The majority court is correct that the appellant, Jewell Polk, was not entitled to any defense of joint occupancy under the facts of this case. He was the single occupant of the car he was driving when he was placed under arrest for improper lane usage and for driving with an expired license. The officer arrested Polk and impounded the car. The officer then conducted an inventory of the car. Arkansas Rule of Criminal Procedure 12.6(b) provides that a vehicle impounded in consequence of an arrest, or retained in official custody for other good cause, may be searched at such times and to such extent as is reasonably necessary for safekeeping of the vehicle and its contents. It was during the inventory that the officer found contraband inside the car.

Because the officer conducted a proper inventory search, the items of contraband found in the car he was driving were considered to be in his constructive possession. See Fultz v. State, 333 Ark. 586, 596, 972 S.W.2d 222, 226 (1998) (where contraband is under the dominion and control of the accused, he is considered in constructive possession of the contraband). In this case, Polk had dominion and control over the car. Polk was the only person in the car and was the driver of the car. This court has also held that actual ownership is not required for the exercise of dominion and control. See Kilpatrick v. State, 322 Ark. 728, 734, 912 S.W.2d 917, 920 (1995).

Simply stated, the other facts considered by the majority court to link Polk in possession of the contraband are wholly unnecessary. Polk’s conviction can be affirmed based solely on the legal inventory search.

Imber, J., not participating.

       Polk and the State stipulated that the gun actually belonged to Michael Purtle, who reported the gun stolen on April 10, 1999.

       Polk never objected to the inventory search and, while he made a motion that his arrest was pretextual and the judge denied it, Polk fails to raise any pretextual issue on appeal.


author: PER CURIAM.

text:
    Robert Wayne GRADY v. STATE of Arkansas
    CR 01-1061
    73 S.W.3d 608
    Supreme Court of Arkansas
    Opinion delivered May 2, 2002

      Scott Adams, for appellant.
    No response.
   PER CURIAM.

Attorney Scott Adams represents appellant Robert Grady, who was convicted of capital murder and sentenced to life without parole. A notice of appeal was filed on Mr. Grady’s behalf, and the appellate record was subsequently filed in this court. Thereafter, on November 16, 2001, December 13, 2001, and February 13, 2002, Mr. Adams received extensions of the deadline for the filing of Mr. Grady’s brief. In granting these extensions, we cautioned Mr. Adams that the February 13 extension was a final extension. The final deadline for Mr. Adams to file Mr. Grady’s brief was April 11, 2002. The deadline was not met; instead, on April 11, 2002, Mr. Adams filed a fourth motion for an extension of time in which to file Mr. Grady’s brief.

On April 24, 2002, Mr. Adams filed an amended motion for an extension of time in which to file Mr. Grady’s brief. On the same day, Mr. Adams filed a second amended motion for an extension of time in which to file Mr. Grady’s brief.

Based on the circumstances described above, we order Scott Adams to appear before this court on Thursday, May 16, 2002, at 9:00 a.m., to show cause why he should not be held in contempt for failing to file his client’s brief on or before April 11, 2002, as previously ordered.


text:
    Danny HARRIS, Jr. v. STATE of Arkansas
    CR 02-377
    73 S.W.3d 615
    Supreme Court of Arkansas
    Opinion delivered May 2, 2002

      Bart Ziegenhorn, for appellant.
    No response.
   PER CURIAM.

Appellant Danny Harris, Jr., by and through his attorney, has filed a motion for rule on clerk. His attorney, Bart Ziegenhorn, states in the motion that the record was tendered late due to a mistake on his 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.


text:
    Eddie A. TAYLOR v. STATE of Arkansas
    CR 02-375
    74 S.W.3d 205
    Supreme Court of Arkansas
    Opinion delivered May 2, 2002

      Bart Ziegenhorn, for appellant.
    No response.
   PER CURIAM.

Appellant Eddie A. Taylor, by and through his attorney, has filed a motion for rule on clerk. His attorney, Bart Ziegenhorn, states in the motion that the record was tendered late due to a mistake on his 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.


text:
    Harold TROUP v. STATE of Arkansas
    CR 02-376
    74 S.W.3d 205
    Supreme Court of Arkansas
    Opinion delivered May 2, 2002

      Bart Ziegenhorn, for appellant.
    No response.
   PER CURIAM.

Appellant, Harold Troup, by and through his attorney, has filed a motion for belated appeal. Attorney Bart Ziegenhorn admits by motion that the appeal was not timely filed due to a mistake on his 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: W. H. "DUB" ARNOLD, Justice.

text:
    CASH IN A FLASH CHECK ADVANCE OF ARKANSAS, L.L.C., Yvonne Clark, and Robert E. Blake v. Jimmie Sue SPENCER and Dorothy Barnes, Individually and on Behalf of a Class of Similarly Situated Persons
    01-1210
    74 S.W.3d 600
    Supreme Court of Arkansas
    Opinion delivered May 9, 2002

      Crone & Mason, PLC, by: Alan G. Crone, for appellant.

      Todd Turner and Dan Turner; and On, Sholtens, Wilhite & Averitt, by: Chris Averitt, for appellee.
   W. H. "DUB" ARNOLD, Justice.

Chief Justice. In A Flash Check Advance of Arkansas, L.L.C. (hereinafter “CIAFCA”), appeals the order of the Craighead County Circuit Court denying its motions to stay litigation and compel arbitration. Appellee Jimmie Sue Spencer filed a class-action lawsuit against CIAFCA alleging it had violated Arkansas’s usury law. For reversal, CIAFCA argues that the trial court erred by not enforcing the language contained in the “Agreement” prepared by CIAFCA signed by appellees which purported to require arbitration of all claims. We disagree, and thus, affirm.

This appeal stems from a dispute regarding the legality of certain transactions involving CIAFCA and appellees. CIAFCA is in business for a twofold purpose: to immediately cash the checks of its customers who desire that service, and to defer presentment to the bank upon which the check is drawn for other of its customer’s checks. CIAFCA charges a fee for each of these services and operates pursuant to the provisions of the Arkansas “CheckCasher’s Act.” Ark. Code Ann. § 23-52-104 (Repl. 2000).

Appellee Jimmie Sue Spencer filed a purported class-action complaint against CIAFCA. This complaint alleged that CIAFCA was really in the loan business and that the fees it charged for the deferred presentment service were usurious. The complaint arose out of appellee Spencer’s transactions with CIAFCA, each of which was memorialized with a written agreement and each of which contained an identical arbitration agreement.

CIAFCA filed a motion to stay litigation and compel arbitration. CIAFCA argued that pursuant to the Arkansas Code, the action must be stayed and sent to arbitration for its resolution. Spencer made her reply to CIAFCA’s motion arguing that the agreement was void for usury and the arbitration agreement was otherwise unenforceable on the contract grounds of unconscionability, lack of mutuality, and because it did not comport with the provisions of the Arkansas Arbitration Act.

Spencer, then, filed a motion seeking to certify this action as a class action and a group supplemental exhibit allegedly in support of her position in attacking the arbitration agreement. Spencer amended her complaint to add Dorothy Barnes, Robert Blake, and Yvonne Clark as new defendants and to state an additional cause of action for alleged violation of the Arkansas Deceptive Trade Practices Act. CIAFCA responded to the amendment by filing a second motion to stay litigation and compel arbitration. CIAFCA made the same arguments as its prior argument. A hearing was held on CIAFCA’s motion’s to stay litigation and compel arbitration. The trial court entered essentially identical orders denying the motions to stay litigation and compel arbitration.

Appellant CIAFCA requests that this Court reverse the decision of the trial court, direct the claimants to arbitration for resolution of this dispute and stay the proceedings pending resolution of the arbitration. CIAFCA asserts four points on appeal: this dispute is subject to arbitration; appellees are not giving up any substantive rights by pursuing their claims in arbitration, as opposed to judicial forums; agreements are legally enforceable contracts; and that the trial court erred in finding the contract unconscionable. We agree with appellee’s contentions and hold that the Agreement entered into between CIAFCA and appellee’s was not a legally enforceable contract due to lack of mutuality.

At the outset, we note that an order denying a motion to compel arbitration is an immediately appealable order, Ark. R. App. P. Civ. — 2(a)(12); E-Z Cash Advance, Inc. v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001); Showmethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 27 S.W.3d 361 (2000); Walton v. Lewis, 337 Ark. 45, 987 S.W.2d 262 (1999). We review a trial court’s order denying a motion to compel de novo on the record. Id.

Arbitration Clause

On appeal, CIAFCA argues that both the Arkansas Arbitration Act and the Federal Arbitration Act apply. CIAFCA’s written “Agreement,” in addition to detailing the amount of the loan and terms of repayment, also contained language which CIAFCA contends constitutes a valid arbitration clause. The subject language in the agreements states:

ARBITRATION: To pursue any claim, demand, dispute or cause of action (“claim”) arising under this Agreement or the transaction in connection with which this Agreement has been executed, the claimant must submit to the other party in writing an explanation of the claim and a demand that the claim be resolved by arbitration, provided, that if the claim is against Cash In A Flash Advance of Arkansas, L.L.C., claimant shall mail said notice to D & E Enterprises, 3030 Covington Pike, Suite 181, Memphis, Tennessee 38127. If the other party does not respond to the submittal in writing within ten (10) days of its receipt, the claim must be submitted to binding arbitration in accordance with and pursuant to the laws as enacted in the State of Arkansas at Ark. Code Ann. § 16-108-101 et seq., as may be amended from time to time (“Act”). The arbitration shall be conducted by a single arbitrator selected by agreement between Cash in a Flash Check Advance of Arkansas, L.L.C. or, if no agreement on the arbitrator can be reached, by the Chancery Court of Arkansas sitting in the county where this Agreement was signed. The expenses of the arbitration, including attorney’s fees, will be paid in accordance with the award issued by the arbitrator. The finality and binding effect of the arbitration award shall be as set forth in the Act.
GOVERNING LAW: Both this Agreement and the Application were executed at out offices in the State of Arkansas. The Application , the Agreement and this transaction and arrangement with us, shall be governed by and construed and enforced solely in accordance with the internal laws of the State of Arkansas. YOU AGREE THAT THE STATE COURTS LOCATED IN THE STATE OF ARKANSAS WILL HAVE EXCLUSIVE JURISDICTION AND VENUE OF ANY PERMITTED ACTION ARISING UNDER THIS AGREEMENT.

The issue presented in this case is whether this language created a valid and enforceable arbitration agreement under Arkansas law. The Arkansas Uniform Arbitration Act, found at Ark. Code Ann. § 16-108-201 to § 16-108-224 (1987, Supp. 2001), outlines the scope of arbitration agreements in Arkansas. Arkansas Code Annotated section 16-108-201 (Supp. 2001), states:

(a) A written agreement to submit any existing controversy to arbitration arising between the parties bound by the terms of the writing is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.
(b) A written provision to submit to arbitration any controversy thereafter arising between the parties bound by the terms of the writing is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract; provided, that this subsection shall have no application to personal injury or tort matters, employer-employee disputes, nor to any insured or beneficiary under any insurance policy or annuity contract.

Arkansas Code Annotated section 16-108-202 further states:

Proceedings to compel or stay arbitration.
(a) On application of a party showing an agreement described in 16-108-201 and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party; otherwise, the application shall be denied.
(b) On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.
(c) If an issue referable to arbitration under the alleged agreement is involved in an action or proceeding pending a court having jurisdiction to hear applications under subdivision (a) of this section, the application shall be made therein. Otherwise, and subject to 16-108-218, the application may be made in any court of competent jurisdiction.
(d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section, or, if the issue is severable, the stay may be with respect thereto only. When the application is made in the action or proceeding, the order for arbitration shall include the stay.
(e) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

These two statutes, read together, provide that a party in a lawsuit may apply to the trial court to obtain a stay of the proceedings and an order for arbitration pursuant to their agreement. The party resisting arbitration may only dispute the existence or validity of the agreement to arbitrate.

In Arkansas, as a matter of public policy, arbitration is strongly favored and is looked upon with approval by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Showmethemoney Check Cashers v. Williams, 342 Ark. 112, 27 S.W.3d 361; May Constr. Co. v. Thompson, 341 Ark. 879, 20 S.W.3d 345 (2000); Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996); Lancaster v. West, 319 Ark. 293, 891 S.W.2d 357 (1995); see also, Estate of Sandefur v. Greenway, 898 S.W.2d 667 (Mo. App. W.D. 1995).

The question of whether a dispute should be submitted to arbitration is a matter of contract construction. Showmethemoney, supra; International Union, United Auto., Aerospace, & Agri. Implement Workers of Am. v. General Elec. Co., 714 F.2d 830 (8th Cir. 1983). The same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally. May Constr. Co., Inc. v. Benton Sch. Dist. No. 8, 320 Ark. 147, 895 S.W.2d 521 (1995). The essential elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations. Foundation Telecommunications v. Moe Studio, 341 Ark. 231, 16 S.W.3d 531 (2000). Therefore, the court should seek to give effect to the intent of the parties as evidenced by the arbitration agreement itself, with doubts and ambiguities being resolved in favor of arbitration. Showmethemoney, supra. The Federal Arbitration Act and the laws of other jurisdictions do not restrict the scope of arbitration as we do in this state. Generally, the scope of arbitration is defined by the contract between the parties. See Anthony, supra. The Act contemplates that the courts will effectuate the agreement.

CIAFCA argues to this Court that the subject matter of this dispute is subject to arbitration. CIAFCA cites to Showmethemoney where this Court held that the question of whether a dispute should be submitted to arbitration is a matter of contract construction with only certain matters being excepted from arbitration. Showmethemoney v. Williams, supra, citing International Union, United Auto., Aerospace & Agri. Implement Workers of Am. V. General Elec. Co., 714 F.2d 830 (8th Cir. 1983). The Arkansas Uniform Arbitration Act provides that only certain claims may legitimately be found to be outside the scope of arbitration. Terminix Int’l Co. Stabbs, 326 Ark. 239, 930 S.W.2d 345 (1996). Those areas of subject matter expressed to be offhmits to arbitration are limited to personal injury tort claims, employment disputes, and insurance policy or annuity contract disputes. Ark. Code Ann. § 16-108~201(b). CIAFCA claims that since this dispute does not fall into one of these areas, the matter is proper for arbitration. CIAFCA goes further and discusses federal law, however this matter is decided under Arkansas law and the Arkansas Uniform Arbitration Act. Further, the CIAFCA arbitration clause specifically states that it is to be governed by the Arkansas Arbitration Act and Arkansas law.

In this case, the trial court properly analyzed the payday loan agreement to determine whether arbitration was appropriate. The construction and legal effect of a written contract to arbitrate are to be determined by the court as a matter of law. E-Z Cash v. Harris, supra.

CIAFCA claims that the Arbitration clause, separately initialed and contained in each appellees agreement with CIAFCA, was contracted for by both appellees and CIAFCA and requires that any claim arising out of the subject transaction be directed to arbitration. Under this clause, CIAFCA argues that neither appellees nor CIAFCA are relinquishing any substantive right or remedy.

CIAFCA contends that in addition to a clear statutory mandate in favor of arbitration and an enforceable arbitration agreement, Arkansas courts have consistently looked upon arbitration with approval as a less expensive, more expeditious means of resolving disputes. May Construction Co. v. Thompson, 341 Ark. 879, 20 S.W.3d 345 (2000). Further, Arkansas courts have consistently held that any doubt as to the scope or reach of the question or arbitrability should be resolved in favor of arbitration. Walton v. Lewis, 337 Ark. 45, 987 S.W.2d 262 (1999).

CIAFCA asserts that although appellee failed to request arbitration, that failure does not negate the parties’ bargained for choice of forum. In fact, to submit this dispute to any forum other than the one specifically contemplated by the parties at the time of their entering into the Agreement would be contrary to both the clear mandate of the Arkansas Legislature and Arkansas’s judicial precedent. Here, the trial court properly held that the appellees could not receive appropriate relief through arbitration because of the Agreement itself and its lack of mutuality.

Legally Enforceable Contract

The Arkansas legislature has stated that “a written provision to submit to arbitration any controversy thereafter arising between the parties bound by the terms of the writing is valid, enforceable, and irrevocable . . .” Ark. Code Ann. § 16-108-201(b). The Legislature has further mandated “a written agreement to submit any existing controversy to arbitration arising between the parties bound by the terms of the writing is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Ark. Code Ann. § 16-108-202(a).

This Court has addressed the enforceability of arbitration agreements in the context of the check-cashing industry. Showmethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 27 S.W.3d 361 (2000); EZ Cash Advance, Inc. v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001); Luebbers v. Money Store, 344 Ark. 232, 40 S.W.3d 745 (2001).

In Showmethemoney Check Cashers, Inc. v. Williams, this Court held that arbitration agreements will be enforced the same as any other agreement. The court held that the essential elements for an enforceable arbitration agreement are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement and (5) mutual obligation. Showmethemoney, supra. CIAFCA contends that there can be little doubt that the agreements entered into between them and appellees meet the .Williams elements. CIAFCA further asserts that both parties are bound to the agreement by its own terms and may only pursue legal action if the other party does not respond to the arbitration demand within ten days of its receipt. Here, neither party made a written explanation of their claim or demand for arbitration, as required by their agreements; therefore, according to CIAFCA neither party is entitled to pursue this matter in a judicial forum.

Specifically, the fact that the check casher had the right to seek redress in a court of law, while the customer was limited strictly to arbitration, demonstrated a lack of mutuality. This court explained:

A contract to be enforceable must impose mutual obligations on both of the parties thereto. The contract is based upon the mutual promises made by the parties; and if the promise made by either does not by its terms fix a real liability upon one party, then such promise does not form a consideration for the promise of the other party. “. . ,[M]utuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound.” A contract, therefore, which leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other.

E-Z Cash Advance, Inc. v. Harris, supra; Showmethemoney, 342 Ark. at 120, 27 S.W.3d at 366. Thus, under Arkansas law, mutuality requires that the terms of the agreement impose real liability upon both parties. Showmethemoney, supra; Townsend v. Standard Indus., Inc., 235 Ark. 951, 363 S.W.2d 535 (1962). There is no mutuality of obligation where one party uses an arbitration agreement to shield itself from litigation, while reserving to itself the ability to pursue relief through the court system. See Showmethemoney, supra.

In this case, the trial court properly ruled that the arbitration agreements at issue are unenforceable. The Agreement employed by CIAFCA allow the appellant at its option to exercise any of the remedies listed in the “Consequences of Default” provision of the Agreement. Within the Agreement, CIAFCA states:

CONSEQUENCES OF DEFAULT: Should you stop payment on the Check or otherwise default under this Agreement, we may, at our option, exercise any one of the following remedies:
(a) if payment is not made after written demand, we may go to court and get a judgment against you for the then unpaid amount of your obligation to us. In the event judgment is entered in our favor, we may seek to collect this judgment through all judicial means necessary, including attaching your non-exempt property, or garnishing your wages:
(b) if we are advised by your bank or other financial institution that the Check was been altered, forged, stolen, obtained through fraudulent or illegal means, negotiated without proper legal authority, or represents the proceeds if illegal activity. If the Check is returned to us by our bank for any of these reasons, we may not release the Check without the consent of the proper authority or other investigating law enforcement authority.
(c) if the check is returned Account Closed and Stop Payment, we may seek any and all criminal charges as prescribed by State Law.
(d) any check returned unpaid by any payer financial institution shall be assessed a return check charge not to exceed $20.00.
(e) if this matter is placed with an attorney for collections of any and all monies dues and owing Cash in a Flash Cash Advance of Arkansas L.L.C. all reasonable costs and expenses of collection, specifically included, but not limited to reasonable attorney fees, court costs, and other damages, as set forth by the court, shall be paid by the customer.

Therefore, the Agreement contains inconsistent language in the “Arbitration” provision and the “Consequences of Default” provision. CIAFCA may, at its option, exercise any one of the remedies listed in the default portion of the Agreement; however, the appellees are bound to arbitration. Thus, the Agreement lacks mutuality and cannot stand. We affirm the trial court.

Affirmed.

Glaze, J., not participating.