author:
Donald L. Corbin, Justice.
      Robert L. Brown, Justice,

      Annabelle Clinton Imber, Justice,

text:
    Melba LAIRD, Max Laird, Individually and In Their Capacities as Respective Trustees for the Melba Laird Living Trust and Max Laird Living Trust As Maintained By Stephens, Inc. v. Sandra SHELNUT, Executrix of the Estate of Don McMann, Deceased

    01-1155
    74 S.W.3d 206
    Supreme Court of Arkansas
    Opinion delivered May 16, 2002
    [Petition for rehearing denied June 27, 2002]

      Hatfield & Lassiter, by: Richard F. Hafield, for appellant.

      Baxter, Jenson, Young & Houston, by: Ray Baxter, for appellee.
   Donald L. Corbin, Justice.

Justice. Appellants Melba and Laird, individually and as respective trustees for the Melba Laird Living Trust and Max Laird Living Trust, appeal the order of the Saline County Chancery Court granting Appellee Sandra Shelnut’s motion for summary judgment. On appeal, the Lairds argue that in deciding the issue of summary judgment, the chancellor improperly relied upon a transcript from another court proceeding, and that the proper record reflects genuine issues of material fact. The Lairds argue in the alternative that the chancellor erred in determining that $738,000 was to be held in a constructive trust. This appeal involves an issue of first impression; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l). We affirm.

The events leading up to the present action date back to the execution of reciprocal wills by Don and Dixie McMann on June 23, 1995. Dixie had contacted attorney John Lovell to discuss the drafting of their wills. Dixie explained that her husband had a problem and that she was sickly. Dixie also told Lovell that her son-in-law was Alfred Shelnut, a friend of Lovell’s and Sandra’s husband. Lovell went to the McManns’ home to meet with the couple on three separate occasions. During the initial meeting, the McManns told Lovell that they wished to leave their entire estate to Sandra, Dixie’s daughter. Don also told Lovell that “he had a greedy sister and a worthless husband and he did not want them to share in anything that he and his wife had earned or acquired.” During the second meeting, Lovell, at the request of the McManns, explained the effects of the wills to Sandra.

Thereafter, Lovell drafted reciprocal wills on behalf of Don and Dixie. Don’s will contained the following reciprocal language:

FIFTH: I declare that this Will is executed contemporaneously with a Will of similar testamentary plan executed by my said wife, DIXIE MCMANN, and I declare that my said wife and I have agreed that we shall not alter, amend or change our Wills or do any act or suffer any omission which will have the effect of defeating the testamentary plan stated in our Wills, except by mutual agreement at the time when both of us are alive.”

Dixie’s will contained identical reciprocal language, but referenced Don as her spouse. The wills appointed Sandra Shelnut as executrix. The McManns’ wills provided that upon the death of one of them, their estate would pass to the surviving spouse, until their death, and then the residue would pass to Sandra and Alfred Shelnut.

Dixie passed away on February 2, 1998. Four days prior to her death, Dixie, Don, and Sandra withdrew $900,000 from a joint account titled in all three parties’ names, and split the proceeds evenly between Don and Sandra. Following Dixie’s death, Don moved in with the Lairds. Fie added Melba, his sister and only surviving heir, to his investment account, as a joint owner with a right of survivorship. On July 14, 1998, Don executed a new will naming Melba executrix and sole heir.

Upon Don’s death on June 5, 1999, Sandra attempted to probate the 1995 will with the Saline County Probate Court. Melba contested the will and sought to probate the 1998 will instead. In an order dated April 19, 2000, the probate court admitted the 1995 will to probate and appointed Sandra executrix. In an unpublished opinion, the court of appeals reversed that order and remanded the case on the ground that the probate court lacked subject-matter jurisdiction to enforce the contract to execute reciprocal wills. See Laird v. Shelnut, CA 00-1226 (Ark. App. Sept. 5, 2001).

While the probate matter was pending, Sandra, acting as executrix of the Estate of Don McMann, filed an action in Saline County Chancery Court requesting an injunction and temporary restraining order preventing the Lairds from accessing or using Don’s stock account at Merrill Lynch, Pierce, Fenner & Smith. In her complaint filed on August 16, 1999, Sandra alleged that Don’s actions of adding Melba to his stock account and drafting a new will were prohibited under the language of the reciprocal wills drafted by him and Dixie in 1995. Melba responded that the terms of the 1998 will superseded the 1995 will and that the 1995 will was the product of fraud, coercion, and duress. Melba then filed a counterclaim alleging that Sandra initiated a scheme to defraud Don of his estate and a parcel of real property. Melba requested that the transfers from Don to Sandra prior to his death be set aside.

Sandra subsequently filed two amended complaints. The first sought the imposition of a constructive trust over the assets removed from Don’s estate. Next, Sandra filed an “Amended and Substituted Complaint” substituting the defendants as Melba and Max Laird, individually and in their official capacities as trustees, respectively, for the Melba Laird Living Trust and the Max Laird Living Trust. This complaint was filed on April 19, 2000, the same day that the probate court entered its order admitting the 1995 will to probate and appointing Sandra as executrix. Therein, Sandra alleged that during the pendency of the probate proceeding, it was discovered that funds from Don’s estate that passed to Melba upon his death, had been transferred into the two living trusts. Sandra requested that the chancellor order the Lairds to return such monies, as well as any earnings resulting from the investment of those monies.

Sandra filed a motion for summary judgment on September 15, 2000, alleging that there were no contested issues of fact to be resolved. Sandra based this motion on the order of the probate court finding that Don executed a contractually binding reciprocal will in 1995, and alleged that because of the validity of that will, the transfers to the Lairds were invalid, and as such, they held the funds in constructive trust. A brief in support of the motion was also filed, and attached to the brief was a copy of Don’s 1995 will and a certified copy of a transcript from a hearing in the probate matter. In response to the summary-judgment motion, the Lairds argued that there were questions of fact still at issue. The Lairds also argued that because Shelnut failed to attach any admissible evidence to the pleadings in the case, there was no basis for the chancery court to grant summary judgment.

Sandra specifically alleged in her motion for summary judgment that the amount held by the Lairds in constructive trust was $738,000. This amount was based on the testimony of Martin Northern in a hearing held on September 5, 2000. There, Northern, a stock broker and registered investment advisor, testified that he was able to trace $493,249.18 originally in Don’s account to the Laird’s living trust accounts. He further testified that the Lairds never contributed to the accounts and that they now contained $737,791.96 that formerly belonged to Don.

The chancellor entered an order on January 12, 2001, granting Sandra’s motion for summary judgment. In that order, the chancellor stated that after considering the filings, including the forms of court orders and transcripts from the probate case, he found no unresolved questions of fact remaining. The chancellor specifically found that the Lairds held in constructive trust $738,000, which was Sandra’s equitable property, and ordered that the funds not be disturbed, pending the outcome of the appeal in the probate proceeding.

The Lairds appealed to the Arkansas Court of Appeals. Relying on the decision in Imbraguglio v. Great Atlantic & Pacific Tea Co., Inc., 358 Md. 194, 747 A.2d 662 (2000), the court of appeals determined that the probate transcript possessed all the indicia of reliability and was properly considered in granting summary judgment. It thus affirmed the decision of the chancellor. See Laird v. Shelnut, 75 Ark. App. 193, 55 S.W.3d 795 (2001). The Lairds petitioned for review of that decision on the basis that the court of appeals’ opinion conflicted with our prior holdings and Ark. R. Civ. P. 56(c). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed in this court. See Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001); Regions Bank & Trust v. Stone County Skilled Nursing Facil., Inc., 345 Ark. 555, 49 S.W.3d 107 (2001). Thus, we review the trial court’s judgment, not that of the court of appeals.

The Lairds raise two points for reversal: (1) the chancellor improperly considered the probate transcript, and that once the transcript is stricken from consideration, the proper record reflects genuine issues of material fact; and (2) the chancellor erred in ordering the Lairds to hold $738,000 in constructive trust for Shelnut. We disagree and affirm the decision of the chancellor.

We first turn to the Lairds’ argument that the probate transcript was not part of the proper record below and thus should not have been considered by the chancellor. Rule 56 governs summary-judgment proceedings. Pursuant to Rule 56(c)(2), summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The Lairds aver that Rule 56 does not provide for the submission of a trial transcript; therefore, it was error for the chancellor to rely on it in granting summary judgment. Such a narrow interpretation of Rule 56 ignores the fact that a transcript of trial testimony is as reliable as a transcript of deposition testimony or an affidavit, both of which may be considered in summary-judgment proceedings.

Other jurisdictions have recognized this reliability factor and allowed the use of trial transcripts in summary-judgment proceedings. In Farmers Union Oil Co. of Williston v. Harp, 462 N.W.2d 152 (N.D. 1990), the North Dakota Supreme Court ruled that a trial transcript from a prior proceeding involving different parties was admissible for summary-judgment purposes. In reaching this conclusion, the court cited with approval the following language from a federal court decision: “[T]here is no sensible rationale which would preclude reliance on sworn testimony faithfully recorded during the conduct of a judicially supervised adversarial proceeding. All of the hallmarks of reliability attend upon such trial transcripts.” Id. at 155 (quoting United States v. O’Connell, 890 F.2d 563, 567 (1st Cir. 1989)). The court in Harp further stated that affidavits are not subject to cross-examination and reasoned that the degree of reliability attending sworn testimony from a previous trial is as great as the degree of reliability attending affidavits. Id.

In Imbraguglio, 358 Md. 194, 747 A.2d 662, the case relied on by the Arkansas Court of Appeals, the Maryland Court of Appeals stated that a transcript of former testimony was as reliable as an affidavit filed in the summary-judgment context. In allowing for its use, the court noted that a transcript indicates matters the witness would testify to if called in the present case, and like an affiant, the witness gave the testimony under oath.

While the Imbraguglio court left open the issue whether a transcript involving different parties could be used, the Maryland Special Court of Appeals later addressed that issue in Shipley v. Perlberg, 140 Md. App. 257, 780 A.2d 396 (2001). There, the court held that the transcript of a deposition taken in an unrelated case was admissible in a summary-judgment proceeding involving different parties. In support of this conclusion, the Maryland court relied upon the policy issues underlying summary judgment, stating:

The purpose of the rule is to dispose of cases if there is no genuine factual controversy. Its purpose is not to try the case or resolve factual disputes, but rather to determine whether there is a factual controversy requiring a trial. The purpose of cross-examination, on the other hand, is to elicit the truth, thereby resolving factual disputes. At the summary judgment stage of a case, it is not critical that the party opposing use of a deposition transcript have an opportunity to ferret out the truth of the facts asserted by its opponent through cross-examination. The summary-judgment rule contemplates that summary judgment may be predicated on an affidavit by a non-party affiant who has not been cross-examined. We do not see why this rule should be different for deposition testimony by a non-party.

Id. at 272-73, 780 A.2d at 404 (citations omitted).

The reasoning in Shipley negates the Lairds’ argument that Imbraguglio is distinguishable from the case at hand, because the Lairds were not parties to the probate action. Moreover, their argument that they were not parties to the probate proceeding is misleading. Melba Laird contested the will that Sandra attempted to probate and offered up a subsequent will instead. She participated in the probate proceedings, including availing herself of the opportunity to cross-examine Lovell. The transcript relied on by the chancellor was a complete transcript of Lovell’s testimony on direct and cross-examination. In sum, we find no merit in the Lairds’ argument that the transcript could not be used because this action involves different parties.

We are likewise unpersuaded by the Lairds’ reliance on Pyle v. Robertson, 313 Ark. 692, 858 S.W.2d 662 (1993), and Godwin v. Churchman, 305 Ark. 520, 810 S.W.2d 34 (1991), for the proposition that the transcript could not be considered because it was not attached to the motion for summary judgment, but rather to the supporting brief. Pyle and Godwin simply stand for the proposition that a trial court may not consider factual allegations raised in a party’s trial brief or exhibits (emphasis added). Rule 56 does not require a party to attach supporting documents to the motion in order for those documents to become part of the record, and we will not extend our previous holdings to sanction such an absurd result. Having determined that the trial court properly relied on the probate transcript in reviewing the motion for summary judgment, we now turn to the record before us in order to determine if there are any genuine issues of material fact.

We have ceased referring to summary judgment as a “drastic” remedy and now simply regard it as one of the tools in a trial court’s efficiency arsenal. Bank of Arkansas v. Mana Corp., 346 Ark. 469, 58 S.W.3d 366 (2001). Summary judgment should only be granted, however, when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Id.; Elam, 346 Ark. 291, 57 S.W.3d 165. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Wright v. City of Monticello, 345 Ark. 420, 47 S.W.3d 851 (2001); Flentje, 340 Ark. 563, 11 S.W.3d 531. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Pfeifer v. City of Little Rock, 346 Ark. 449, 57 S.W.3d 714 (2001). Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.

Remaining mindful of this standard, we now turn to the Lairds’ argument that genuine issues of material fact remain as to whether the reciprocal wills created an enforceable contract between Don and Dixie. Specifically, the Lairds alleged that Don’s 1995 will was the product of fraud, coercion, and duress and was part of a scheme by Shelnut and her husband to defraud Don of his estate. In support of her motion for summary judgment, Shelnut submitted the sworn testimony of Lovell, the attorney that drafted the McManns’ wills, regarding the facts and circumstances surrounding the drafting of the McManns’ wills. Lovell testified that Dixie contacted him about drafting wills for her and her husband and that he met with them on three separate occasions. The McManns explained to Lovell that they wanted to draft wills that would leave their entire estate to Shelnut. According to Lovell, Don stated several times that “he had a greedy sister and a worthless husband and he did not want them to share in anything that he and his wife had earned or acquired.” Lovell stated that during his second meeting with the McManns, he explained to Shelnut, at the McManns’ request, what they wanted to accomplish with their wills. Lovell testified that he believed that the McManns possessed testamentary capacity and that he witnessed no signs of any undue influence. Lovell further testified that, “Mr. McMann was a very educated — or, he appeared to me, a very knowledgeable fellow. And he knew what he wanted, and he told me what he wanted. And I simply did what he told me he wanted.”

The transcript is evidence that clearly supports the chancellor’s finding that summary judgment was appropriate. Moreover, it is axiomatic that once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Foreman Sch. Dist. No. 25 v. Steele, 347 Ark. 193, 61 S.W.3d 801 (2001); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Here, once Shelnut submitted her evidence in support of summary judgment, the Lairds failed to offer any proof that material questions of fact were still in dispute. Thus, we cannot say that it was error for the trial court to grant Shelnut’s motion for summary judgment.

Alternatively, the Lairds argue that even if the chancellor did not err in granting summary judgement, the finding that $738,000 should be held in constructive trust was clearly erroneous. Specifically, the Lairds argue that the only evidence related to damages was in the form of Northern’s testimony at the September 5 hearing and that Northern’s conclusion was a mere estimate that did not take into consideration other sources of income deposited into the trust account. The Lairds, however, never raised this argument below, and we will not consider it for the first time on appeal. See Hurst v. Holland, 347 Ark. 235, 61 S.W.3d 180 (2001); Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001).

Finally, we award Sandra Shelnut, as Appellee, costs in the amount of $250 as reimbursement for the cost of preparing the supplemental abstract in order to correct the Lairds’ deficient abstract. See Ark. Sup. Ct. R. 4-2(b)(l) (2001).

Affirmed.

Glaze, Brown, and Imber, JJ., dissent.

Robert L. Brown, Justice,

dissenting. I disagree with the majority that we can simply amend Rule 56(c) of our Rules of Civil Procedure relating to summary judgment, add a new category of proof, and apply it to the case at hand. The effect of doing that is to blindside opposing counsel by changing the summary-judgment rules while the case is pending on appeal. For that reason, I dissent.

In the present case, two wills of the decedent, Don McMann, are at issue: a 1998 Will naming Melba Laird as executrix and a 1995 Will naming Sandra Shelnut as executrix and executed as part of a reciprocal-will plan with his wife, Dixie McMann. The probate court held a hearing In the Matter of the Estate of Don McMann, deceased, and entered an order admitting the 1995 Will to probate.

Sandra Shelnut then sued in Chancery Court to enjoin the Lairds from taking possession of the decedent’s common stock and prayed for an order for them to return any common stock or other assets owned by Don McMann at the time of his death. She then moved for summary judgment and attached the transcript from the probate hearing in support of her motion. The Lairds contested the motion on the basis that there was no “admissible evidence” supporting Sandra’s motion in the form of depositions, answers to interrogatories, affidavits, or admissions. The chancellor, nonetheless, agreed with Sandra and granted her motion. In that order, the chancellor stated that he based his decision on the court orders and the transcript from the probate case. The probate transcript contained testimony from John Lovell, the attorney who drafted the 1995 Will and a friend of Sandra’s husband. Mr. Lovell testified that in his opinion, Don McMann had testamentary capacity and had not been coerced into executing the 1995 will.

A transcript from another proceeding is not listed as something to be considered under our Rule 56(c). That rule plainly states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact.” Our case law has emphasized the importance of these Rule 56(c) parameters:

“Moreover, by going beyond the pleadings, discovery, and affidavits, the trial court erred for purposes of summary judgment, and the procedure followed did not fall within the specific parameters of Rule 56.”

Godwin v. Churchman, 305 Ark. 520, 524, 810 S.W.2d 34, 36 (1991). In Godwin, the trial court held a hearing and took testimony from all parties and accepted exhibits. That is what we said was inappropriate for summary judgment purposes, unless waived by the parties. See also Montgomery Ward & Company, Inc. v. Credit, 274 Ark. 66, 621 S.W.2d 855 (1981) (refusing to consider, on review, oral testimony taken at a hearing for a motion for summary judgment on the basis that there was no provision for the taking of such testimony in Rule 56).

A practicing attorney reading our Rule 56(c) and the Godwin case would reasonably have concluded that previous trial testimony was inappropriate for summary-judgment purposes, absent his agreement that the trial court could consider it. Trial testimony may well be more reliable than an affidavit for summary-judgment purposes, but if we are to change our civil rules, let’s do so prospectively and not in the middle of a case. That is what we typically do. See, e.g., In Re Arkansas Rules of Civil Procedure, 347 Ark. Appx. 1048 (Jan. 24, 2002) (per curiam).

For these reasons, I respectfully dissent.

Imber, J., joins.

Annabelle Clinton Imber, Justice,

dissenting. My reasons for dissenting are twofold. First, I agree with Justice Brown’s dissenting opinion. Summary-judgment proceedings are governed by Rule 56 of our Rules of Civil Procedure, and a transcript from another proceeding is not listed as something to be considered under Rule 56(c). Second, even assuming that the chancellor properly considered the testimony from the probate court proceedings, I must conclude that genuine issues of material fact remain to be litigated. Both of these points of error have been raised and argued throughout the course of this case.

The moving party here, Sandra Shelnut, claims that she submitted “documentary proof of the entitlement to summary judgment being in the form of transcripts and findings of fact, . . . thus establishing the prima facie case.” (Emphasis added.) Specifically, she relies on findings in the chancellor’s opinion letter dated April 10, 2000, and in the probate court’s order entered on April 19, 2000. As mentioned in the majority opinion, the probate court’s order has been reversed by the Arkansas Court of Appeals on the basis of lack of subject-matter jurisdiction. Laird v. Shelnut ex rel. Estate of McMann, Slip Op., No. CA 00-1226 (Ark. App. Sept. 5, 2001), pet. for review denied.

Furthermore, Sandra Shelnut suggests that the issues of material fact in this case “are resolved” by the transcripts of Mr. Lovell’s testimony in the probate court proceedings. Mr. Lovell testified that Dixie McMann called him and stated she and her husband wanted to visit with him about making their wills. Fie went to their house because Dixie indicated Don “had maybe had surgery. Or he had a problem .... And that she was kind of sickly.” Furthermore, he agreed to visit with the McManns at their home because of his friendship with Alfred Shelnut. While Mr. Lovell did not recall ever representing Alfred Shelnut, he admitted that he may have answered questions for him. Mr. Lovell also confirmed that he had represented several members of Alfred’s family, including his parents, his brothers, his niece and nephew, and his daughter. Mr. Lovell further testified that Sandra was present during the second visit with the McManns and that during this visit Alfred pulled up in front of the house. According to Mr. Lovell, he told the Shelnuts that under the reciprocal wills all.of the McManns’ assets would go to them after the second death.

While Mr. Lovell also testified that he was satisfied the McManns had testamentary capacity and that he had no indication they had been unduly influenced, this court is required to view his testimony in the light most favorable to the Lairds and resolve all doubts in their favor. Viewing the evidence in favor of the Lairds, I must conclude that Mr. Lovell’s testimony is sufficient to raise issues of fact as to whether the 1995 will and the property deeds were the result of undue influence exerted by the Shelnuts over Don McMann.

The chancery court concluded there were no unresolved questions of fact because “all the facts pertaining to this proceeding have been litigated fully and were completely addressed to this Court in the form of the various filings herein.” (Emphasis added.) The standard is whether there is evidence sufficient to raise a fact issue, rather than evidence sufficient to compel a conclusion on the part of a fact finder. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). Therefore, a review of a summary judgment is not a “sufficiency of the evidence” determination. Id. The chancellor ruled that the issues had been “litigated fully,” an improper process in the summary-judgment context, and in so doing, committed prejudicial error. For these reasons, I respectfully dissent.

Glaze and Brown, JJ., join in this dissent.

       The trial court made no ruling on any of the matters raised in this counterclaim, nor does it appear that Appellants ever sought any such ruling. Moreover, Appellants have not raised any allegations regarding the counterclaim on appeal.


source: Caselaw Access Project

author: Robert L. Brown, Justice. Tom Glaze, Justice,

license: Public Domain

text:
    STATE of Arkansas v. Kenneth Andrew SULLIVAN
    CR 99-1140
    74 S.W.3d 215
    Supreme Court of Arkansas
    Opinion delivered May 16, 2002
    [Petition for rehearing denied June 20, 2002]

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., and Brad Newman, Ass’t Att’y Gen., for appellant.

      John Wesley Hall, Jr., and Kathy L. Hall; David M. Siegel; and F.N. “Buddy” Troxell, for appellee.

      Glaze and Imber, JJ., would grant.

   Robert L. Brown, Justice.

This is a pretextua~-arrest case. Kenneth Andrew Sullivan was arrested in 1998 in Conway. He was' charged with, among other offenses, possession of methamphetamine with intent to deliver. The facts leading up to his arrest were set out in State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526 (2000) (Sullivan I). Sullivan moved to suppress the fruits of the arrest, including the methamphetamine, and the trial court granted his motion. We again are called upon to review the propriety of the trial court’s decision. We affirm that decision on state law grounds.

The procedural history of this case follows. In Sullivan I, we affirmed the trial court’s decision to suppress on the basis that the arresting officer’s actions were pretextual. In the original briefing of the issues, neither party cited Whren v. United States, 517 U.S. 806 (1996), to this court. After our decision in Sullivan I, the State petitioned for rehearing, arguing that we did not follow the Supreme Court’s decision in Whren. We denied the petition but issued a supplemental opinion addressing the Whren case. See State v. Sullivan, 340 Ark. 318-A, 16 S.W.3d 551 (2000) (Supplemental Opinion on Denial of Rehearing) (Sullivan II). In Sullivan II, we rejected the rationale of Whren and stated that we were free to grant Sullivan more protection under the United States Constitution than the federal courts have seen fit to provide.

After our decision in Sullivan II, the State petitioned the Supreme Court for a writ of certiorari. The Supreme Court granted the petition. In Arkansas v. Sullivan, 532 U.S. 769 (2001) (per curiam), the Supreme Court reversed our decision in Sullivan II. The Court noted that we could grant Sullivan more protection under state law, but that we could not do so under the federal constitution. The Court said:

The Arkansas Supreme Court’s alternative holding, that it may interpret the United States Constitution to provide greater protection than this Court’s own federal constitutional precedents provide, is foreclosed by Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975). There, we observed that the Oregon Supreme Court’s statement that it could “ ‘interpret the Fourth Amendment more restrictively than interpreted by the United States Supreme Court’ ” was “not the law and surely must be inadvertent error.” Id., at 719, n. 4, 95 S. Ct. 1215. We reiterated in Hass that while “a State is free as a matter of its own-law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards,” it “may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.” Id., at 719, 95 S. Ct. 1215.

Arkansas v. Sullivan, 532 U.S. at 772 (emphasis in original). The United States Supreme Court remanded the case to us for further proceedings. Following the remand, we granted Sullivan’s motion to rebrief the issues in this case. We now take up the State’s appeal of the trial court’s suppression decision for the third time.

Initially, we note that under federal law there is no longer a pretext inquiry. In Whren v. United States, supra, the United States Supreme Court foreclosed such inquiries into a police officer’s subjective motivation, holding that “[sjubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren, 517 U.S. at 813. So long as a police officer’s actions are objectively reasonable, there is no Fourth Amendment violation even if the police officer’s actions are wholly pretextual. Under Whren, for example, a law enforcement officer may use any violation of traffic laws to investigate an entirely unrelated criminal offense, regardless of whether the officer has probable cause or even reasonable suspicion that the unrelated offense has been committed. Under the Fourth Amendment, this is acceptable police conduct. Further, the Whren Court took pains to point out that the opinion did not announce a departure from its prior interpretations of the Fourth Amendment, citing United States v. Robinson, 414 U.S. 218 (1973), Gustafson v. Florida, 414 U.S. 260 (1973), Scott v. United States, 436 U.S. 128 (1978), and United States v. Villamonte-Marquez, 462 U.S. 579 (1983).

In various search-and-seizure contexts, this court has viewed the protections of Article 2, section 15, of the Arkansas Constitution to be parallel to those provided by the Fourth Amendment. See, e.g., Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997) (noting the “virtually identical” wording of the two constitutional provisions at issue); Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). In Stout, for example, we said:

Of course, we could hold that the Arkansas Constitution provides greater protection against unreasonable searches than does the Constitution of the United States, but we see no reason to do so. The wording of each document is comparable, and through the years, in construing this part of the Arkansas Constitution, we have followed the Supreme Court cases. . . . [W]e choose to continue to interpret “unreasonable search” in Article 2, Section 15 of the Constitution of Arkansas in the same manner the Supreme Court interprets the Fourth Amendment to the Constitution of the United States.

Stout, 320 Ark. at 557-58, 898 S.W.2d at 460. In Stout, we declined to depart from federal interpretation in the vehicular search-incident-to-arrest context, noting particularly that we had followed the United States Supreme Court’s lead in this area: “Belton has provided a practical and workable rule for fourteen years, and we have followed it on many occasions.” Id.

Nonetheless, in other search-and-seizure contexts, we have not been in lock-step with federal Fourth Amendment interpretation. This fact is illustrated by our recent decision in Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002). In Griffin, we relied on the Arkansas Constitution in declaring a nighttime incursion upon the defendant’s curtilage to be an illegal exercise of law enforcement authority. In Griffin, we said:

[W]hile we lack authority to extend the protections of the Fourth Amendment beyond the holdings of the United States Supreme Court, we do have the authority to impose greater restrictions on police activities in our state based upon our own state law than those the Supreme Court holds to be necessary based upon federal constitutional standards.

Griffin, 347 Ark. at 792, 67 S.W.3d at 584 (citing Arkansas v. Sullivan, supra). After setting forth the historical underpinnings of our decision, we held that Article 2, section 15, of the Arkansas Constitution prohibited the police conduct at issue in that case. The Griffin decision was in keeping with our Rule of Criminal Procedure 13.2(c), which forbids nighttime execution of a search warrant except in limited circumstances. Rule 13.2(c) is another instance in which this court has granted more protection under Arkansas law than the federal courts provide in interpreting the Fourth Amendment. In sum, there are occasions and contexts in which federal Fourth Amendment interpretation provides adequate protections against unreasonable law enforcement conduct; however, there are also occasions when this court will provide more protection under the Arkansas Constitution than that provided by the federal courts.

One pivotal inquiry in this regard, as highlighted by Stout, supra, is whether this court has traditionally viewed an issue differently than the federal courts. See also State v. Gunwall, 720 P.2d 808, 814-15 (Wash. 1986) (noting that Washington State’s “common law history” is one of several factors which may warrant a departure from Fourth Amendment standards). This case presents such a situation. Hence, we begin our analysis of the specific issue presented by this case by noting that this court has traditionally treated pretextual arrests differently than have the federal courts. Unlike the United States Supreme Court, this court has considered pretextual arrests to be unreasonable for over twenty years. Our first case expressing that view was Smith v. State, 265 Ark. 104, 576 S.W.2d 957 (1979). In Smith, officers suspected the defendant of possessing stolen goods, but their suspicions did not rise to the level of probable cause. Thus, they located two entirely unrelated arrest warrants for the defendant and proceeded to use them to get into his home. Once inside, they searched for the stolen merchandise. We held in Smith that this was unreasonable police conduct and suppressed the fruits of the search.

In Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981), we again indicated that pretext was an issue that concerned this court. In Brewer, law enforcement officers arrested the defendant for participating in a burglary with the intention to question him about an unrelated homicide. They obtained an incriminating statement from the defendant regarding the homicide and charged him with that homicide, but never charged him with the burglary. The defendant challenged the admissibility of the pretextually obtained statement. We held that the statement was admissible, but only because the taint of the illegal pretextual arrest dissipated when the defendant’s girlfriend told the defendant that she had implicated him in the homicide. We made it clear in Brewer that we would have excluded the pretextually obtained statement had the taint not dissipated. •

The next case in which pretext was a determinative issue was Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986). In Richardson, police officers brought the defendant in for questioning after his uncle’s remains had been discovered in the charred ruins of his burned home. While at the police station, the defendant was surreptitiously drinking from a whiskey bottle hidden in his boot. After the defendant became obviously drunk, officers arrested him for public intoxication. On the basis of this arrest, they seized the defendant’s clothing and sent it to the state crime laboratory for analysis. The defendant’s uncle’s blood was discovered on his clothing. We reversed the defendant’s murder conviction based on the pretextual motives of the officers as well as various violations of the Arkansas Rules of Criminal Procedure:

Regardless of whether we can technically justify the arrest on the charge of public intoxication, we can find no justification whatever for these rules violations. The appellant was clearly being held because he was suspected in the murder and arson case. The officers had a duty to charge him with that offense or let him go. Their failure to do so put them in violation of the rules mentioned and the realization of those violations makes it even clearer that the arrest which occurred was carried out as a pretext to permit the search.

Richardson, 288 Ark. at 414, 706 S.W.2d at 367.

Shortly thereafter, we decided another pretextual-arrest case, Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986). In Hines, law enforcement officers had connected the defendant’s name with a murder. However, they did not have probable cause to arrest him for the murder, and they did not pursue him as a suspect. Almost three months later, the defendant’s mother-in-law complained to the local prosecuting attorney that the defendant and two others tried to kill her by pouring formaldehyde on her furniture. Police officers thereafter spent five days investigating the mother-in-law’s claim and, after her repeated requests for action on the case, they procured arrest warrants for all three individuals involved in the formaldehyde incident. The first of the three to be arrested incriminated the defendant in the murder, and the defendant thereafter voluntarily appeared at the police-station and confessed to the murder. In addressing the defendant’s claim that his statement should have been suppressed on the basis of pretext, we said:

Claims of pretextual arrest raise a unique problem in the law— deciding whether an ulterior motive prompted an arrest which otherwise would not have occurred. Confusion can be avoided by applying a “but for” approach, that is, would the arrest not have occurred but for the other, typically the more serious, crime. Where the police have a dual motive in making an arrest, what might be termed the covert motive is not tainted by the overt motive, even though the covert motive may be dominant, so long as the arrest would have been carried out had the covert motive been absent.

Hines, 289 Ark. at 55, 709 S.W.2d at 68. Applying the newly articulated but-for test, we held that the defendant would have been arrested for the formaldehyde incident in any event, and we affirmed his conviction for murder.

We followed the Hines but-for test in Ray v. State, 304 Ark. 489, 803 S.W.2d 894 (1991). There, the defendant was a suspect in the murder of his ex-wife’s lover. Officers developed the defendant as a suspect early in the investigation due to several factors. One factor was an outstanding warrant for the defendant’s arrest for the terroristic threatening of his ex-wife. Another was the identification of a shirt left at the scene of the crime as the defendant’s shirt. On the basis of this information, a police officer went to the defendant’s house. He observed the defendant get into his car and pull onto the road, at which time he pulled the defendant over. Smelling alcohol on his breath, he arrested the defendant and drove him to the police station. On appeal, the defendant claimed that the evidence seized and statements taken should have been suppressed due to pretext. We disagreed, noting that given the evidence against him in the homicide investigation, he could not show that he would not have been arrested but for the pretext. In other words, there was probable cause to arrest him for the homicide, which obviated the need for a pretext analysis.

We have noted our concern with pretextual police conduct in a number of other decisions. See Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000) (finding no pretextual arrest where officers approached defendant with an outstanding arrest warrant) (citing Ray, supra; Hines, supra); Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993) (finding no pretextual arrest where defendant was suspected in a homicide but was picked up on an unrelated outstanding arrest warrant); State v. Shepherd, 303 Ark. 447, 454, 798 S.W.2d 45, 49 (1990) (finding pretextual conduct, based on “the law of Arkansas,” where five police officers entered and searched defendant’s property with the ostensible purpose of serving a prosecutor’s subpoena); Thomas v. State, 303 Ark. 210, 795 S.W.2d 917 (1990) (finding no pretextual search incident to arrest where defendant was stopped for speeding, but arrested because an NCIC search revealed that a person with defendant’s name was wanted in Texas for escape); Guzman v. State, 283 Ark. 112, 672 S.W.2d 656 (1984) (finding pretextual police conduct where police entered defendant’s property with the stated purpose of searching for illegal aliens, when in fact they were searching for drugs).

As for the basis for our pretextual-arrest decisions, the State points out that some of the cases cited federal precedent. Sullivan likewise points out that others relied solely on state rules and case law. Both parties are correct. What is important to note in this regard is that this line of cases developed in our court despite the Supreme Court’s decisions in Gustafson, Robinson, Scott, and Villamonte-Marquez, supra. While the United States Supreme Court was tilting in one direction in its pretext analysis — culminating finally in the plain statement of their position in Whren — we consistently took a different direction. Today, we solidify our position, based on the adequate and independent state grounds of Article 2, section 15, of the Arkansas Constitution, as well as our own pretext decisions. Under these authorities, pretextual arrests — arrests that would not have occurred but for an ulterior investigative motive — are unreasonable police conduct warranting application of the exclusionary rule. The pretext inquiry is a threshold matter to be resolved before inquiring into other bases for suppression such as, for example, compliance with Ark. R. Crim. P. 4.1, which governs warrantless arrests.

Bearing these principles in mind, we now turn to the analysis of the present case. The arresting officer in this case was a narcotics officer. He admitted at the suppression hearing that he recognized Sullivan’s name as one involved in narcotics in the area. He had no probable cause, however, to arrest him for any drug violation. The police officer instead performed a full custodial arrest of Sullivan and stated that the reasons for the arrest were speeding, illegal window-tinting, driving an unsafe vehicle, failure to produce registration and insurance, and possession of a “weapon”: a roofing hatchet that had been on the defendant’s floorboard for so long that it was rusting and corroding into the carpet. The trial court was bothered by the fact that the police officer arrested Sullivan rather than citing him for traffic violations and that the police officer used the roofing hatchet to bolster the case. We repeat the trial court’s findings that resulted in the suppression of the methamphetamine:

[F] oil owing our hearing yesterday, I have gone over the testimony and looked at what I believe to be the law in that case, and it’s going to be my decision in this particular instance that based on the testimony, specifically that the officer testified that he stopped the car based on a charge of suspicion of speeding — which I have no problem with the stop. I think that was . . . there was radar. I don’t have any problem with that.
He testified that once he got him stopped, he recognized him as someone that he had seen intelligence on regarding narcotics, and he — rather than write citations, he physically arrested him. And the weapons charge, I think, was added to that. And I don’t believe that in this particular instance that the — that that was appropriate, and I’m going to grant the defendant’s motion to suppress the evidence seized as a result of that search.

The crucial question in this case becomes this: Would the arresting officer have effected the full custodial arrest but for his suspicion that Sullivan was involved in narcotics? The trial court answered this question in the negative, finding that the arrest was pretextual. The trial court suppressed the fruits of the arrest on that basis. We cannot say that the court’s findings and its decision were clearly against the preponderance of the evidence. See also Sullivan I, 340 Ark. at 318, 11 S.W.3d at 528; Sullivan II, 16 S.W.3d at 552.

Additionally, we observe that Sullivan urges this court to depart from the United States Supreme Court’s holding in Atwater v. Lago Vista, 532 U.S. 318 (2001). In Atwater, the Court held that a full custodial arrest was a permissible law enforcement response to a fine-only traffic offense. In that case, it was failure of a driver to wear a seat belt that resulted in the full custodial arrest. The Court declined to draw a line between types of offenses for which a person may be arrested and booked, and those that warrant only a fine. While the holding in Atwater raises potential concerns, this is not the appropriate case in which to address those concerns. In this case, Sullivan was arrested for several offenses, one of which was an illegal window-tint, which is a violation of Ark. Code Ann. § 27-37-306(b)(l) (Repl. 1994). That offense is not a fine-only offense, but rather, as a Class B misdemeanor, is punishable with up to 90 days’ imprisonment. See Ark. Code Ann. § 5-4-401(b) (2) (Repl. 1997). Thus, contrary to the United States Supreme Court’s observation in Arkansas v. Sullivan, 532 U.S. at 771, this case does not involve an arrest for a fine-only traffic offense, and thus it does not present a compelling case for departure from Atwater.

In closing, we note an observation made in a concurring opinion in Griffin v. State:

In the majority opinion, we now depart from our earlier decisions wherein this court has declared that the Arkansas Constitution provides no greater protection than the Fourth Amendment to the United States Constitution. We previously noted that the wording of each document is comparable, and through the years, in construing this part of the Arkansas Constitution, we have followed the United States Supreme Court’s cases. Current interpretation of the United States Constitution in the federal courts no longer mirrors our interpretation of our own constitution.

Griffin, 347 Ark. at 804, 67 S.W.3d at 593 (Hannah, J., concurring). This is another instance in which we depart from the standards established by the federal courts and rely instead on independent state grounds to determine what, in Arkansas, constitutes unreasonable police conduct warranting suppression.

Affirmed.

Glaze and Imber, JJ., dissent.

Tom Glaze, Justice,

dissenting. I dissent. The majority opinion claims that this court has traditionally treated pretextual arrests differently than have federal courts. However, the cases cited in the majority opinion do not support this contention. The questions of pretext in a majority of these cases were in fact analyzed under the Fourth Amendment and federal law, not under Arkansas law. See Smith v. State, 265 Ark. 104, 576 S.W.2d 957 (1979); Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981); Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986); and Thomas v. State, 303 Ark. 210, 795 S.W.2d 917 (1990). In Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986), as the majority notes, the court adopted a “but for” approach in evaluating claims of pretextual arrest; however, the majority fails to note that this approach was taken from a mixture of federal law and the Professor LaFave treatise, Criminal Procedure, not from Arkansas law or historical precedent. Ray v. State, 304 Ark. 489, 803 S.W.2d 894 (1991), did follow the “but for” approach, but in 1993 the court decided Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), without using the “but for” approach, and instead cited to Richardson v. State, supra, a holding under federal analysis, for its precedent.

The majority opinion ignores the more recent holdings by this court regarding pretextual arrest. In Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994), this court implicitly overruled Hines, supra, and the “but for” approach by applying an objective test used by the Eighth Circuit. The court stated “that an otherwise valid stop does not become unreasonable merely because the officer has intuitive suspicions that the occupants of the car are engaged in some sort of criminal activity.” Mings, supra, (quoting United States v. Cummins, 920 F.2d 498, 501 (8th Cir. 1990)). This standard was applied in the last case before this court on pretextual arrest prior to this appeal on remand. See Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000).

The majority claims that the line of cases described above is proof that this court’s pretextual analysis developed in a different direction than that of the Supreme Court. The majority points out that in Whren v. United States, 517 U.S. 806 (1996), Justice Scalia stated that the Court had decided on several previous occasions that an officer’s motive does not invalidate objectively reasonable behavior under the Fourth Amendment. Flowever, it is clear, and the majority opinion acknowledges this, that the Court did not directly address the issue of pretextual stops and arrests until Whren. Therefore, the Arkansas cases were not contrary to federal law until the holding in the instant case.

The majority further points out that Arkansas is not in “lockstep” with federal Fourth Amendment interpretation in other search and seizure contexts, specifically in the case of Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002). However, Griffin is distinguishable from the instant case in two fundamental aspects. First, the Supreme Court has not decided a “knock and talk” case, whereas Whren is a clear statement on pretextual stop and arrest. Second, this court and the Supreme Court have held that people have a lesser expectation of privacy in their vehicles than in their homes. See Cardwell v. Lewis, 417 U.S. 583 (1974); and Tackett v. State, 307 Ark. 520, 822 S.W.2d 834 (1992).

The majority opinion does not address that the holding in this case will overrule strong precedent that this court interprets Ark. Const. art. 2, § 15 in the same manner the Supreme Court interprets the Fourth Amendment to the Constitution of the United States. See Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999); Fultz v. State, 333 Ark. 586, 972 S.W.2d 146 (1998); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997); and Stout v. State, 320 Ark. 522, 898 S.W.2d 457 (1995). There is a strong presumption that the court’s prior decisions are valid. See Ray v. State, 342 Ark. 180, 27 S.W.3d 384 (2000).

Further, the 'majority opinion does not address the fundamental facts of the case. Mr. Sulhvan was stopped for speeding and having an illegal tint on his windshield, two violations that he does not deny. Both of the violations occurred in front of a police officer, thus triggering Ark. R. Crim. P. 4.1(a)(iii), “A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed . . . (iii) any violation of law in the officer’s presence.” There is nothing in the law that requires the officer to fine, rather than arrest, Mr. Sullivan. The contraband was discovered in a vehicle search pursuant to Ark. R. Crim. P. 12.6(b), and the search was completed following the Conway Police Department’s Vehicle Inventory Policy. The stop, the arrest, and the search were ah valid. To hold otherwise creates a constitutional challenge in every case where Rule 4.1(a) (iii) is used by an officer to make a warrantless arrest.

In summary, the trial court should be reversed for three reasons. First, Arkansas follows the Supreme Court’s interpretation on search and seizure issues. Second, the current Arkansas law on this matter is the Mings objective standard. Third, there was a valid reason for the stop and for the arrest; therefore, the officer’s motivation is irrelevant under both Whren and Mings.

Imber, J., joins this dissent.

       Our cases have not equated pretextual stops with pretextual arrests due to the different level of police intrusion involved with a traffic stop as opposed to a full custodial arrest. The intrusiveness of an arrest warrants inquiry into an officer’s subjective intentions. See, e.g., Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994).


author: Robert L. Brown, Justice.

text:
    Lloyd STONE, Jr. v. STATE of Arkansas
    CR 01-1239
    74 S.W.3d 591
    Supreme Court of Arkansas
    Opinion delivered May 16, 2002

      T.B. Patterson, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Lloyd Stone, Jr., appeals his judgment of conviction for manufacture of methamphetamine and his sentence of twenty-seven years. He raises six points on appeal. We reverse on the refusal of the trial court to suppress the evidence seized, and we remand for further proceedings.

For several months, Garland County Sheriffs Department Investigators Corey DeArmon and Danny Wilson had been monitoring Stone’s home because they suspected that he was involved in the manufacture or sale of methamphetamine. On the night of September 17, 1998, at approximately 8:30 p.m., the two investigators knocked on the door of Stone’s home. They had not obtained a search warrant but had decided to use the “knock and talk” procedure for obtaining a consent to search. When he answered the door, Officer DeArmon asked Stone if they could search the premises. After Stone answered the door, the officers could smell a strong odor which they associated with the manufacture of methamphetamine.

Stone refused to give his consent to search. Instead, he stated that he wanted to call his attorney, Hugh Alexander. He turned around and walked back into the house. When he did so, at least one police officer followed him. It is a matter of some dispute as to why the police officer entered Stone’s home. Stone called his attorney, and the police officer listened to his conversation. At one point, Stone put Officer DeArmon on the telephone with Hugh Alexander. What was said in that conversation is also matter of factual dispute. Officer DeArmon testified at the suppression hearing that Stone’s attorney advised Stone to consent to the search. Alexander disputed this assertion, noting that most of his law practice was criminal defense work and that he would not advise a client to consent to a warrandess search of that client’s home. Alexander maintained that Officer DeArmon falsely told him that he and Officer Wilson had already found evidence of the manufacture of methamphetamine taking place in the home. Thus, Alexander claimed, he thought his client was about to be arrested, and he told Officer DeArmon not to question him until he could make it out to the house.

Another area of dispute is whether, after the telephone call, Stone consented to the police officers’ search of his home. Stone maintained that he gave no consent. Officer DeArmon, on the other hand, stated that not only did Stone give his consent, he also escorted the police officers around his house and showed them the contraband. All parties agree that Stone was not offered a consent-to-search form. The two police officers found ingredients for making methamphetamine as well as containers they suspected to be involved in the manufacture of methamphetamine. They arrested Stone for attempted manufacture of methamphetamine, and he was later charged with that offense.

Stone moved to suppress the physical evidence seized at his house on the night in question. He argued that he did not give his consent for the officers to enter his home and that he did not give his consent to search the premises. Following a hearing on the motion to suppress, the trial court denied the motion. On April 3, 2000, the State amended the criminal information to change the charged offense from attempted manufacture, a Class A felony, to manufacture, a Class Y felony. The matter proceeded to a jury trial on May 23, 2000. Stone was convicted of manufacture of methamphetamine and sentenced as stated above.

Stone appealed his conviction to the Arkansas Court of Appeals. In an unpublished opinion, the Court of Appeals reversed Stone’s conviction under Fourth Amendment principles governing consent to search. See Stone v. State (Ark. App. Oct. 24, 2001). The Court of Appeals held specifically that Stone gave no consent for Officer DeArmon’s initial entry into his home. The State petitioned for rehearing and argued that any taint of this illegal entry was attenuated by the subsequent consent to search that Officer DeArmon maintained Stone gave him after consulting with his attorney. That petition was denied. The State petitioned for review from the Court of Appeals’ decision, and we granted that petition.

We review this case as if the appeal from the judgment of conviction was originally filed in this court. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998).

I. Sufficiency of the Evidence

For double jeopardy reasons, we first consider Stone’s claim that there was insufficient evidence to support his conviction. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002); Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001). Though we are excluding the methamphetamine seized in this case, the proper disposition is to reverse and remand for the possibility of a new trial. See Crisco v. State, 328 Ark. 388, 393, 945 S.W.2d 582, 585 (1997) (supplemental opinion); Nard v. State, 304 Ark. 159, 163-A, 801 S.W.2d 634, 637 (1991) (supplemental opinion). Accordingly, the issue of whether sufficient evidence was presented by the State to support the conviction must be considered first, as lack of sufficient evidence would result in a reversal and dismissal of the case.

We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000); Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Williams v. State, 346 Ark. 304, 57 S.W.3d 706 (2001); Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000); Willett v. State, 335 Ark. 427, 983 S.W.2d 409 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Haynes v. State, supra; Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993); Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992). Further, this court will not second-guess credibility determinations made by the factfinder. Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996).

In challenging the sufficiency of the evidence supporting his conviction, Stone specifically argues that the State did not prove that he was manufacturing methamphetamine for anyone’s use but his own. He points to the fact that under Ark. Code Ann. § 5-64-101 (m), “manufacture” must be manufacture for a use other than one’s personal consumption. See Ark. Code Ann. § 5-64-101 (m) (Repl. 1997). That section reads:

(m) “Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance .... (Emphasis added.)

Thus, “preparation or compounding” of an illegal substance for one’s own use does not constitute “manufacture.”

This Court has considered personal-use arguments in the context of the manufacture of methamphetamine in prior cases. See, e.g., Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). In Owens, this Court rejected a personal-use argument and adopted the rationale of the appellate court in a sister state:

The plain meaning of the exception is to avoid making an individual liable for the felony of manufacturing a controlled substance in the situation where, being already in possession of a controlled substance, he makes it ready for use (i.e., rolling marijuana into cigarettes for smoking) or combines it with other ingredients for use (i.e., making the so-called “Alice B. Toklas” brownies containing marijuana).

Owens, 325 Ark. at 124, 926 S.W.2d at 658 (quoting State v. Childers, 41 N.C. App. 729, 255 S.E.2d 654 (1979)). The Owens decision distinguished between the “preparation or compounding” of a controlled substance for personal use such as the rolling of a marijuana cigarette and the creation of such a substance. Owens, 325 Ark. at 124, 926 S.W.2d at 658 (citing State v. County Court for Columbia County, 82 Wis. 2d 401, 263 N.W.2d 162 (1978); People v. Pearson, 157 Mich. App. 68, 403 N.W.2d 498 (1987)).

Here, the State produced sufficient evidence that Stone was indeed manufacturing methamphetamine by means of the necessary ingredients and required apparatus. The personal-use exception does not apply, and Stone’s sufficiency argument is without merit.

Stone, however, makes an alternative sufficiency argument. He claims that the State failed to prove when any manufacture of methamphetamine took place. The State correctly points out that this argument is made for the first time on appeal. Accordingly, this court will not address it. Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000).

We affirm the trial court on the sufficiency point.

II. Suppression

Stone’s central contention in this appeal is that the search of his home was illegal because he did not give valid consent to enter. Thus, any items seized such as the products used to manufacture methamphetamine constituted the fruit of the poisonous tree and should be suppressed. See Wong Sun v. United States, 371 U.S. 471 (1963).

In reviewing a trial court’s ruling denying a defendant’s motion to suppress, we make an independent determination based on the totality of the circumstances and view the evidence in the light most favorable to the State. We reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997); Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996); Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996).

As an initial matter, Stone argues in his supplemental brief after we granted the State’s petition for rehearing that the search and seizure was illegal under the state constitution. We refuse to consider this argument since it was never made to the trial court or to our court of appeals. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002) (declining to address unpreserved state constitutional argument in a knock-and-talk case).

We turn then to Stone’s primary argument, which is that his conviction should be reversed under the Fourth Amendment of the United States Constitution. He premises his argument on the fact that he never gave a valid consent to law enforcement officers to enter his home. The State counters that this issue is really one of credibility for the trial court to resolve and that this court should defer to the trial court’s finding not to suppress on that basis.

A warrantless entry into a private home is presumptively unreasonable under the Fourth Amendment. Welsh v. Wisconsin, 466 U.S. 740 (1984); Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002); Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992). However, the presumption of unreasonableness may be overcome if the law-enforcement officer obtained the consent of the homeowner to conduct a warrantless search. See Holmes v. State, 347 Ark. 530, 65 S.W.3d 860 (2002) (citing Ark. R. Crim. P. 11.1; Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995)). This court has established that the State has a heavy burden to prove by clear and positive testimony that a consent to search was freely and voluntarily given. Holmes v. State, supra; Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999); Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980). A valid consent to search must be voluntary, and “[v]oluntariness is a question of fact to be determined from all the circumstances.” Ohio v. Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218 (1973)). Any consent given must be unequivocal and may not usually be implied. Holmes v. State, supra; Norris v. State, supra (citing U.S. v. Gonzales, 71 F.3d 819 (11th Cir. 1996)).

This court recently decided a case that bears some similarity to the one at bar. See Holmes v. State, supra. In Holmes, we reversed a trial court’s suppression decision where police officers followed an individual into a private home with no invitation to do so. Once inside, the officers discovered marijuana. The trial court denied the defendant’s motion to suppress. We reversed the suppression decision and said:

This court had held that consent to an invasion of privacy must be proved by clear and positive testimony, and this burden is not met by showing only acquiescence to a claim of lawful authority. See, e.g., Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997); Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980)). The concept of “implied consent” was examined in Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999), where this court looked to United States v. Gonzalez, 71 F.3d 819 (11th Cir. 1996), and wrote as follows:
The question of “implied consent” . . . was more closely examined recently in U.S. v. Gonzalez, supra. In Gonzalez, the officer approached an individual outside her home and asked if she would consent to a search of her home. Following a conversation with her daughter, she told the officer she wanted to go inside and get a drink of water. The officer then told her he “wanted to go in” with her, and when she did not bar him from going in, he followed her inside. The Eleventh Circuit held that there was no consent to enter:
We have previously noted our hesitancy to find implied consent (i.e. consent by silence) in the Fourth Amendment context, and we agree with our colleagues in the Ninth Circuit that whatever relevance the implied consent doctrine may have in other contexts, it is appropriate to ‘sanction entry into the home based upon inferred consent.’
Gonzalez then quoted from U.S. v. Shaibu, 920 F.2d 1423 (9th Cir. 1990), to which it had referred above:
The government may not show consent to enter from the defendant’s failure to object to the entry. To do so would be to justify entry by consent and consent by entry. “This will not do .’’Johnson v. United States, 333 U.S. at 17. We must not shift the burden from the government — to show “unequivocal and specific” consent — to the defendant, who would have to prove unequivocal and specific objection to a police entry, or be found to have given implied consent.
Gonzalez, 71 F.3d at 830; Norris, 338 Ark. 409, 993 S.W.2d 918 (emphasis in original).

Holmes, 347 Ark. at 538-9, 65 S.W.3d at 865.

To justify the warrantless entry into Stone’s home in the case before us, the State underscores one instance in Officer DeArmon’s testimony at the suppression hearing when he testified that Stone said, “Come on, I’m going to call my attorney.” At several other points in the police officer’s testimony, however, he admitted that he was not invited into the home. The relevant part of Officer DeArmon’s testimony at the suppression hearing follows:

Defense Counsel: Now, what led you to believe that Mr. Stone had invited you in when he said he wanted to call his lawyer?
Officer DeArmon: ’Cause he said “Come on, I’m going to call my attorney.” and [I] said “That’s fine. I don’t care.”
Defense Counsel: So, he invited you in?
Officer DeArmon: Sure, we went just right there in the door, right in the living room right there.
Defense Counsel: Why would he invite you in if he wanted to call his lawyer, Mr. DeArmon?
Prosecutor: Objection, calls for speculation. He can’t testify as to what somebody else . . .
Court: That’s sustained.
Defense Counsel: What conversations did you have? When he said he wanted to call his lawyer, did you say then “I’ll follow you in” or “I’ll step in,” or did you just follow him in, Mr. DeArmon?
Officer DeArmon: He said “I want to call my attorney.” Just like I said, and we walked in the house.
Defense Counsel: Well, what right did you have to walk in the house? He didn’t say “come in” did he?
Officer DeArmon: We walked right there to get the phone.
Defense Counsel: Exactly, Mr. DeArmon. It’s not in your report anywhere that he invited you in is it?
Officer DeArmon: He did not tell us not to come in.
Defense Counsel: He didn’t tell you to come in either, did he?
Officer DeArmon: We did — we’s standing right there in the doorway. He was — we were right there in the doorway.
Defense Counsel: You entered the house, didn’t you, Mr. DeArmon?
Officer DeArmon: Yes, I entered the house.
Defense Counsel: You entered the house without' invitation?
Officer DeArmon: No, sir, with invitation. He didn’t tell us to stay out.
Defense Counsel: Why didn’t you report that? Why isn’t it written in your report that “Mr. Stone invited us in?” What’s in your report is that he — he wanted to call his lawyer.
Officer DeArmon: Uh-huh (affirmative).
Defense Counsel: And you followed him in. That’s not being invited, is it, Mr. DeArmon?
Officer DeArmon: I went with him. I mean, he could have went in and got a gun for all I know.
Defense Counsel: And he would have every right to do so? He didn’t have — he had every right to exclude you from his home.
Officer DeArmon: He sure did. At any time.
Defense Counsel: Except you followed him in, didn’t you?
Officer DeArmon: We didn’t — we didn’t enter the — we walked right there to the doorway where he grabbed the phone, and that’s where we did all the discussing.
Defense Counsel: But you came inside the door, Mr. DeArmon. Is that correct?
Officer DeArmon: Yes, sir. I guess we passed the threshold.
Defense Counsel: And he •— and Mr. Stone did not say “come in.” You followed him. Is that not correct?
Officer DeArmon: He said “I want to use the phone.” Yes, I guess as your wording is, yeah, that’d be correct.
Defense Counsel: Well, not in my wording. Your wording. He never invited you in. He said he wanted to use the phone. He wanted to call his lawyer.
Officer DeArmon: Yes, sir.

We disagree with the State’s casting of this issue as merely one of credibility. Under our caselaw, the State must show that in the context of a warrantless entry, the State must prove by clear and positive testimony that the consent to enter and search was unequivocal and specific. See Holmes v. State, supra; Norris v. State, supra. That heavy burden has not been met in this case. Officer DeArmon’s testimony at the suppression hearing is far from unequivocal. At various times, he says he simply followed Stone into his house and that Stone never invited him in. What is clear is that when Officer DeArmon asked for a consent to search, which Stone declined. Stone then said he wanted to call his attorney. When Stone walked back into his house to do so, Officer DeArmon followed him.

We hold that the police officer’s entry into Stone’s home was illegal and not supported by the clear, positive, and unequivocal proof of consent required by our caselaw. We add as a corollary to this holding that were we to sanction a warrantless entry into a home solely based on a police officer’s security concerns, we would be allowing that justification to be used for entry into any home under any circumstance. In effect, we would be significantly undermining the search warrant or consent requirement, which we will not do.

The State next contends that even assuming the police officer’s entry was illegal, this defect was cured by Stone’s consent to search after his conversation with his attorney. In analyzing this issue, we must determine whether Stone’s consent to search was “sufficiently an act of free will to purge the primary taint.” United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994) (quoting Wong Sun v. United States, 371 U.S. 471 (1963)). Further, the attenuation must be determined by weighing the seriousness of the police misconduct. Brown v. Illinois, 422 U.S. 590 (1975). This court has previously held that a lapse of time can dissipate the taint of illegal police conduct. See, e.g., Mitchell v. State, 271 Ark. 512, 609 S.W.2d 333 (1980) (a confession given 18 days after an illegal arrest was admissible, because the intervening time period sufficiently dissipated the taint.). We have also held that an intervening event can be an attenuating circumstance. See, e.g., Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981) (taint of pretextual arrest attenuated when defendant’s girlfriend told defendant that she had already implicated him in the criminal activity).

In this case, we have neither time nor intervening events to dissipate the taint of Officer DeArmon’s illegal entry into Stone’s home. There clearly was very little time lapse between the police officer’s entry and Stone’s consent. The only real question is whether the telephone call to Stone’s attorney constituted an event which would cure the illegal entry. We conclude that it did not. There was much confusion and contradictory testimony about what transpired with Stone’s attorney. Officer DeArmon was present during the entire telephone conversation and was listening. When the police officer got on the telephone himself, Stone’s attorney testified that he was misled by the police officer about what was occurring. Any consent that was given immediately thereafter can not be said to be attenuated from the taint of the illegal entry. As the United States Supreme Court has noted in this regard, the purpose and flagrancy of the violation is always relevant. See Brown v. Illinois, supra.

We hold that Stone’s consent to search following the telephone conversation with his attorney was not sufficiently attenuated from Officer DeArmon’s illegal entry in the house. The methamphetamine and methamphetamine-manufacturing products seized as a result of the illegal entry and search are the fruit of the poisonous tree and must be suppressed. Wong Sun v. United States, supra; Holmes v. State, supra.

The other points raised by Stone (the refusal to grant a continuance, the change in the form of the methamphetamine, the trial court’s interruption of counsel during cross examination, and the failure to give the personal-use instruction) have either been answered in this opinion or are not likely to recur in the event of retrial.

Reversed and remanded.

       It is unclear from the record whether Officer Wilson entered the house for purposes of Stone’s telephone call to his attorney.


text:
    Robert WHITE v. Jim PERRY, David Hudson, Frank Atkinson, and Marcy Porter, In Their Official Capacities as Assessor, County Judge, Collector, and Treasurer for Sebastian County, Arkansas; Charlie Daniels, In His Official Capacity as Arkansas Land Commissioner; and Jimmie Lou Fisher, Arkansas State Treasurer; Greenwood School District; Hackett School District; Hartford School District; Lavaca School District; Charleston School District; Mansfield School District; Booneville School District; Westark Community College; City of Barling, Arkansas; City of Greenwood, Arkansas
    01-861
    74 S.W.3d 628
    Supreme Court of Arkansas
    Opinion delivered May 16, 2002

      Oscar Stilley, for appellant.

      Thompson & Llewellyn, P.A., by: James M. Llewellyn, Jr., for appellees Greenwood School District; Hackett School District; Hartford School District; Lavaca School District; Charleston School District; Mansfield School District; and Booneville School District.

      Smith, Maurras, Cohen & Redd & Horan, PLC, by: S. Walton Mannas, for appellee Westark Community College.
   Robert L. Brown, Justice.

Appellant Robert White raises one issue in his appeal: whether the trial court had authority to deny his motion for a nonsuit in favor of deciding the appellees’ motions to dismiss with prejudice. We agree with White that a plaintiff s right to a nonsuit before submission of the case for decision is an absolute right and that the trial court erred in refusing to enter an order granting it. We reverse the order of dismissal and remand this matter with directions to enter an order granting the nonsuit.

On October 10, 2000, White, on his own behalf and on behalf of all other taxpayers similarly situated, filed a complaint in the Sebastian County Circuit Court, Greenwood District, alleging an illegal exaction as a result of taxes collected pursuant to Act 758 of 1995 in violation of Arkansas Constitutional Amendment 59. White named several state and county government officials, school districts, a community college, and a county and cities as defendants. It is these defendants who are the appellees in this matter. Following White’s filing of a First Amended Complaint on January 19, 2001, each deféndant moved to dismiss the complaint.

On February 20, 2001, White moved for an extension of time in which to file a response to the various motions to dismiss. The trial court granted White’s motion and allowed him until March 12, 2001, to respond. The trial court then sent a letter to all parties, scheduling a hearing on the motions to dismiss. Instead of responding to the various motions to dismiss, White filed a Motion to Nonsuit on March 12, 2001.

On March 30, 2001, both the motions to dismiss and White’s motion to nonsuit were taken up at the called hearing. At that time, the court considered the motions to dismiss first. After hearing arguments from the parties, the court issued its ruling, stating in part:

The Court is of the opinion that while a plaintiff has a right to take a voluntary nonsuit, it is not effective until the Court signs the order granting the nonsuit. I have not done so because I felt that it was important for the Court to make a ruling on the Motions to Dismiss.
I have reviewed all the material submitted by the defendants. The plaintiff has not responded to the Motions to Dismiss because he thought his action by taking the voluntary nonsuit would alleviate him of that responsibility.
I have tried to go through his Complaint and see that there’s any differential between that Complaint and the Complaint that the Supreme Court ruled on in Oxford. I can discern none; that there is no difference, and the rationale for the filing of the Complaint escapes me.
I’m going to dismiss this Complaint with prejudice. The dismissal is being granted upon the defendants’, all their Motions to Dismiss, based upon the aspect of res judicata, that this was previously litigated and that the Supreme Court has settled the law.

On April 11, 2001, the trial court entered its order granting the motions to dismiss. Specifically, the court ruled:

7. The Plaintiffs Motion to Nonsuit has not been ruled on by this Court. Rule 41 of the Arkansas Rules of Civil Procedure provides that a nonsuit is not effective until the court enters an order granting same. For the reasons set forth herein the court exercises its discretion to consider the Motions to Dismiss first.
8. The Court finds that the Plaintiffs complaint is identical to the complaint that had been filed by Mr. Stilley on behalf of Earl Oxford in both the Greenwood District (case No. 99-35-G) and the Fort Smith case filed by Mr. Stilley in the District of Sebastian County, Arkansas. On March 9, 2000 the Arkansas Supreme Court in both the Oxford case filed in the Greenwood District (Sup. Ct. 99-1141) and the case filed in the Fort Smith District determined that the trial courts’ decisions to dismiss both cases because of the failure of the Plaintiffs to comply with the voluntary payment of taxes rule was correct and affirmed the dismissals with prejudice. The Plaintiff herein, by Mr. Stilley, filed an identical complaint some seven months after the Supreme Court reached its decision. The Supreme Courts [sic] decision clearly established the law as it applies to this case. The Plaintiffs action is barred by the prior decision of the Supreme Court. The Complaint should be dismissed with prejudice upon the Defendant’s [fie] Motions to Dismiss because of res judicata.

In his appeal from this Order, White contends that he had the right to bring this lawsuit, as well as the absolute legal right to take a nonsuit. He further maintains that an order for nonsuit, effective upon the trial court’s signature, does not permit the trial court the option of holding that order to decide other motions first.

Appellees WestArk Community College and the School Districts, in separate briefs, raise several arguments to counter White’s claim of an absolute entitlement to a nonsuit. They both argue that White never received a ruling from the trial court on his motion for a nonsuit; thus, they contend that the issue is not preserved for our review. They further assert that even if the trial court erred in denying White’s motion to nonsuit, White was not prejudiced by the court’s order. The reason for this, they claim, is that White’s complaint is the same as a previous lawsuit filed by-Earl Oxford, which was decided adversely to Oxford. See Oxford v. Perry, 340 Ark. 577, 13 S.W.2d 567 (2000). They maintain that when a second taxpayer such as White files an illegal-exaction lawsuit raising matters already concluded in an earlier suit, the second action is barred by the doctrine of res judicata. As authority, appellees cite Rigsby v. Ruraldale Consol. Sch. Dist. No. 64, 180 Ark. 122, 20 S.W.2d 624 (1929), and McCarroll, Comm’r of Revenues v. Farrar, 199 Ark. 320, 134 S.W.2d 561 (1939). In sum, they argue that White could never legitimately refile his lawsuit regardless of whether he voluntarily dismissed it without prejudice or whether the trial court dismissed it with prejudice. The School Districts further maintain that White failed to state sufficient facts in his complaint, as required by Arkansas Rule of Civil Procedure 8(a), showing the court’s jurisdiction and that he and the affected taxpayers are entitled to relief.

A nonsuit by a plaintiff is governed by Rule 41(a) of the Arkansas Rules of Civil Procedure, which sets forth the criteria for the voluntary dismissal of actions. Rule 41(a) provides, in pertinent part:

(a) Voluntary Dismissal: Effect Thereof.
(1) Subject to the provisions of Rule 23(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.
(2) A voluntary dismissal under paragraph (1) operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice.

Ark. R. Civ. P. 41(a)(l-2).

This court has been resolute in holding that the right to nonsuit, as outlined by the rule, is absolute. See, e.g., Whetstone v. Chadduck, 316 Ark. 330, 871 S.W.2d 583 (1994); Duty v. Watkins, 298 Ark. 437, 768 S.W.2d 526 (1989); St. Louis, Iron Mountain & S. Ry. Co. v. Ingram, 118 Ark. 377, 176 S.W. 692 (1915). An absolute right has been defined as one that “gives to the person in whom it inheres the uncontrolled dominion over the object at all times and for all purposes.” Black’s Law Dictionary 1324 (6th ed. 1990). The absolute right to nonsuit may not be denied by the trial court. 24 Am. Jur. 2d Dismissal, Discontinuance, and Nonsuit § 12 (1998).

This absolute right to nonsuit exists so long as the nonsuit is requested prior to submission of the case to the jury or to the court. See Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 954 S.W.2d 939 (1997). Where the nonsuit is requested prior to the final submission of the case, the voluntary nonsuit is an absolute right; however, when it is requested by the plaintiff after final submission of the case, whether to grant a motion for voluntary nonsuit lies within the discretion of the trial court. See Wright v. Eddinger, 320 Ark. 151, 894 S.W.2d 937 (1995). A case has not been finally submitted where, even though it has come to a hearing, the argument has not yet closed. See Duty v. Watkins, supra. This court has further held in accordance with Rule 41(a) that in order to be effective, a court order must be entered granting the nonsuit even when the nonsuit is a matter of absolute right and not subject to the trial court’s discretion. See Blaylock v. Shearson Lehman Bros., Inc., supra. Unlike Federal Rule of Civil Procedure 41(a), which limits the plaintiffs unqualified right to a voluntary nonsuit up to the time that a defendant files his answer, the Arkansas rule follows prior Arkansas caselaw and permits the right to nonsuit until the case is submitted for decision. See Reporter’s Notes to Ark. R. Civ. P. 41.

In this case, we have two time-honored principles that are in conflict: that of a plaintiff s absolute right to nonsuit, and the preclusion of repetitive illegal-exaction suits by various plaintiffs under the doctrine of res judicata. In the past, when a motion to dismiss filed by a defendant was in conflict with a plaintiffs right to nonsuit, this court gave preference to the absolute right to non-suit. See Brown v. St. Paul Mercury Ins. Co., 300 Ark. 241, 778 S.W.2d 610 (1989); Duty v. Watkins, supra. For example, in the Duty case, Duty had filed suit, and the defendant moved to dismiss because of a discovery violation. A hearing was called on the motion to dismiss, and Duty appeared and asked to nonsuit. The trial court refused and granted the motion to dismiss with prejudice. We reversed the dismissal and held that the nonsuit should have been granted because the case had not yet been submitted for decision. In Brown v. St. Paul Mercury Ins. Co., supra, we held similarly when the trial court granted an order of dismissal in the face of the plaintiff s move to nonsuit.

Here, because argument had not yet closed, White’s motion was clearly presented to the court prior to submission of the case for decision. Accordingly, appellant had an absolute right to a nonsuit, regardless of the merits of his case. Because White exercised his absolute right to dismiss his claim, this first voluntary dismissal is without prejudice under Rule 41(a) and not an adjudication on the merits. See Beverly Enters.-Arkansas, Inc. v. Hillier, 341 Ark. 1, 14 S.W.3d 487 (2000). The trial court erred in not entering an order granting White’s motion for a nonsuit without prejudice.

As to appellees’ argument that White’s nonsuit issue fails for lack of preservation because he did not obtain a ruling on his motion, we disagree. The trial court clearly announced it would consider the appellees’ motions to dismiss first. After the court granted those dismissals with prejudice, White’s motion to nonsuit was moot. That was precisely the situation in Duty v. Watkins, supra. There was no procedural bar in Duty, and there is none here.

Finally, we consider the appellees’ contentions that the trial court reached the right result, albeit for the wrong reason, and that in any event, White was not prejudiced by the trial court’s dismissal order. Again, we disagree. Were we to permit a trial judge to exercise his or her discretion in deciding a nonsuit before submission to the court or jury, we would be significantly eroding a plaintiffs absolute right to nonsuit before submission of the case. We would further be authorizing trial courts to examine the merits of a case, including affirmative defenses, in assessing whether to enter the nonsuit order prior to submission of the case for decision. This we will not do. In short, the entry of an order granting a nonsuit before submission of the case, as required by Rule 41(a), is not discretionary with the trial court nor subject to an analysis based on an affirmative defense included in a defendant’s motion.

The same holds true for the School Districts’ contention that White’s complaint fails to state sufficient facts showing jurisdiction and entitlement to relief and, therefore, violates Ark. R. Civ. P. 8(a). In making this argument, the School Districts are simply restating their res judicata defense. Again, raising this defense cannot thwart White’s absolute right to nonsuit before submission of his case.

This does beg the question of what protections are in place to protect against a multiplicity of suits, if White is permitted to voluntarily dismiss his lawsuit. The specter raised by the appellees is that a nonsuit will allow such a multiplicity of suits, contrary to what we said in McCarroll, Comm’r of Revenues v. Farrar, supra:

If a suit of this character is not a bar, then one citizen after another might institute a suit for himself and others against the Commissioner of Revenues, and if the judgment in one suit was not a bar, this could continue until every citizen in the state had brought suit. The doctrine of res judicata is not only to protect the individual, but it is a matter of public policy.

199 Ark. at 325, 134 S.W.2d at 564. We discount the specter, because we conclude that sufficient protections exist under our rules to curb such abuse.

First, there is Rule 41(a), which clearly provides that only one voluntary dismissal without prejudice is allowed. A second nonsuit will be with prejudice. But more to the point, an abuse of the nonsuit procedure by substituting plaintiffs for the same cause of action would subject the attorney to Rule 11 sanctions. See Ark. R. Civ. P. 11. That is precisely the rehef that was sought by the appellees in this case, though they subsequently withdrew their Rule 11 motion. It is also the avenue that the trial court stated it would pursue as a matter of its own inquiry. The court said in its order:

9. Rule 11 of the Arkansas Rules of Civil Procedure provides that the signature of an attorney constitutes certificate by him that he has read the pleading and that to the best of his knowledge, information and belief formed after a reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law and that it is not interposed for any improper purpose such as to harass or to cause unnecessary delay or needlessly increase the cost of litigation. If a pleading is signed in violation of this rule the Court upon motion or its own initiative shall impose upon the person who signed it an appropriate sanction.
10. The Court is greatly concerned that the Complaint was filed in direct violation of the Supreme Court’s prior law and rulings and may be a violation of Rule 11. The Court on its own motion is initiating a Rule 11 inquiry which will be set for hearing at some time in the future at which time Mr. Stilley will be given the opportunity to explain why the Complaint in this case was not in violation of Rule 11.
FURTHER ORDERED the Court retains jurisdiction of this matter to conduct the Rule 11 hearing mentioned above.

We believe that Rule 11 is the proper vehicle for correcting any abuse related to multiple filings. This court, of course, has invoked Rule 11 of the Arkansas Rules of Appellate Procedure — Civil to sanction counsel for filing an appeal on an issue that has recently been decided by this court. See, e.g., Stilley v. Hubbs, 344 Ark. 1, 40 S.W.3d 209 (2001).

For the foregoing reasons, we reverse the order of the trial court dismissing White’s complaint and remand with directions to enter an order granting White’s motion for nonsuit.

Reversed and remanded.

Glaze, J., concurs.

Imber, J. not participating.

Tom Glaze, Justice,

concurring. I concur. While the court reverses and remands this case because of an error, such reversal in no way means the trial court may not consider any collateral Rule 11 issue that might still be pending. Although the appellant had an absolute right to a nonsuit in the circumstances here, an appellant (or anyone entitled to a nonsuit) is never automatically relieved of the duty and responsibility under Rule 11 to certify that, to the best of his knowledge, information, and beliefs formed after reasonable inquiry, his pleading, motion, or other paper is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Appellants’ counsel, Mr. Oscar Stilley, submits the trial court ruled in his favor on the Rule 11 issue, which the trial court raised on its own initiative due to its concern that appellant and Mr. Stilley filed a complaint that was in direct violation of the Arkansas Supreme Court’s prior law and rulings. If the trial court has ruled on the Rule 11 issue, no further action may be warranted; however, if that issue has not been dismissed, nothing in this court’s decision today automatically disposes of the issue.

       In his Reply Brief, Mr. Stilley, on behalf of White, states that the trial court ruled in his favor in its Rule 11 inquiry. That assertion, if true, is not in the record before us.