author: David Newbern, Justice. Steele Hays, Justice,

text:
    Ryan BYNUM v. Patricia SAVAGE
    92-660
    847 S.W.2d 705
    Supreme Court of Arkansas
    Opinion delivered February 22, 1993

      Griffin J. Stockley and Jeanette Whatley of Central Arkansas Legal Service, for appellant.

      Winston Bryant, Att’y Gen., by: Jeanette L. Hamilton, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This appeal arises from a temporary guardianship proceeding. The appellee, Patricia Savage, and her husband are the grandparents of one-year-old Ryan Bynum, the appellant. The Savages petitioned ex parte for an emergency order of temporary guardianship of the child. The order was granted. Then Georgina Bynum, the child’s mother, appeared and asked the Probate Judge to set aside the order. Her petition was granted. She nevertheless appeals, challenging the constitutionality of the temporary guardianship law. Ark. Code Ann. § 28-65-218 (Supp. 1991). We must dismiss the appeal.

In her petition to set the guardianship aside, Georgina Bynum argued her right to due process of law had been violated by granting the temporary guardianship without notice to her. She denied the allegations of parental unfitness and requested a hearing.

After the hearing, during which the constitutional objections to the temporary guardianship statute were raised, the Probate Court ruled as follows:

Okay, here’s what I’m gonna do. I’m gonna set aside the tempor—the ex parte order and circumvent all the constitutional arguments. I’m going to order the child turned over, within forty-eight hours, to the mother and give you [the Savages] that much time to take the facts to the Department of Human Services or the prosecuting attorney’s office to determine whether or not any action should be taken.

No objection was voiced to the decision or to the “circumvention” of the constitutional issues.

It is undisputed that the Probate Court set aside its temporary order of guardianship just as Georgina Bynum requested, and her complaints about the Probate Court’s earlier action are moot. When, however, a case involves the public interest, or tends to become moot before litigation can run its course, or a decision despite mootness might avert future litigation, we have, with some regularity, refused to permit mootness to become the determinant. See, e.g., Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989).

This is the kind of case we might decide if mootness were our only impediment. Temporary guardianships last only ninety days, Ark. Code Ann. § 28-65-218(a)(Supp. 1991), and clearly it would be difficult for us to reach a decision on appeal within that time. But for other circumstances having to do with the bringing of this appeal, we might be inclined to consider the issues presented as “capable of repetition, yet evading review.” DeFunis v. Odegaard, 416 U.S. 312 (1974). Not only is that circumstance present, but the constitutional issues which might have been addressed are substantial, and the statutory scheme is suspect. A parent has a fundamental liberty interest in the care, custody, and management of his or her child. See Santosky v. Kramer, 455 U.S. 745 (1982). Georgina Bynum questions the failure of the statute to provide for notice to parents of the imposition of a temporary guardianship of a child under 14 and its failure to provide for' a hearing within three days of the entry of the order of temporary guardianship. Arkansas Code Ann. § 28-65-218(d) (Supp. 1991).

This is not, however, just a moot case in which substantial issues could be considered. Rather, the party asking us to consider an otherwise moot issue obtained exactly the relief she requested. A party who prevails has no ground for appeal. Kelley v. Medlin, 309 Ark. 146, 827 S.W.2d 655 (1992). Nor has there even been a trial court ruling of any sort on the issues Georgina Bynum would have us decide. With the exception of the contempt power and certain listed writs, this Court has only appellate jurisdiction. Ark. Const. art. 7, § 4; Levy v. Albright, 204 Ark. 657, 163 S.W.2d 529 (1942). We decline to be placed in the position of making original, as opposed to appellate, decisions. Trice v. City of Pine Bluff, 282 Ark. 251, 667 S.W.2d 952 (1984); Weston v. State, 265 Ark. 58, 576 S.W.2d 705 (1979); Ward School Bus Mfg. v. Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977).

Appeal dismissed.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. It overstates the case a bit to say the appellant obtained exactly the relief she requested of the chancellor. The prayer of her petition to set aside the ex parte order granting custody of Ryan Bynum asked that the court declare unconstitutional specific portions of Ark. Code Ann. § 28-65-218 (Supp. 1991) that permit a minor fourteen years of age or under to have a temporary guardianship imposed without notice and without other protections accorded under the Constitution. True, the chancellor “circumvented” those issues by vacating the order, but on a deferred basis to enable appellee to seek other expediences. Beyond that, the record is silent. Thus the case demonstrates how the mootness doctrine can, and often does, defeat the real concerns of the litigant.

The question presented here may be moot with respect to Ryan Bynum, but the asserted flaws in the statutory procedure have hardly been resolved. I believe the better path, and the one we have often taken, would be to address the issues, even though the underlying problem may no longer exist.


source: Caselaw Access Project

license: Public Domain

text:
    Sonya Danette CHUNN and Daniel Chunn v. Daniel D’AGOSTINO, Jr.
    92-774
    847 S.W.2d 699
    Supreme Court of Arkansas
    Opinion delivered February 22, 1993

      W.H. Dillahunty, for appellant.

      Hurst Law Offices, by: Kathy A. Cruz and Terry P. Diggs, for appellee.
   David Newbern, Justice.

The appellants, Sonya and Daniel Chunn, are the biological children of the appellee, Daniel D’Agostino. D’Agostino and their mother were divorced by a decree of November 15, 1973, which awarded custody to the mother and required D’Agostino to pay $250 per month child support. The son, Daniel, was four years old, and Sonya, the daughter, was two. Thereafter, their mother married John Fred Chunn who, by decree of July 16, 1981, adopted Daniel and Sonya, and the parent-child relationship between Sonya and Daniel and D’Agostino was severed.

On September 17, 1991, within five years after Daniel and Sonya had each reached age 18, they sued D’Agostino to recover unpaid child support accrued prior to the date of their adoption. We hold that Sonya and Daniel Chunn’s claim is barred by the statute of limitations which was in effect at the time the child support arrearages accumulated and for a time thereafter, and thus we affirm the Chancellor’s decision to dismiss their claim.

At the trial, D’Agostino argued only that Ark. Code Ann. § 9-9-215(a)(1) (Repl. 1991), the adoption law, eliminated the children’s claim for support by its provision that adoption makes the natural parent whose parental ties are severed a “stranger” to the adopted child.

The Chancellor granted the dismissal, but not on the basis argued. In colloquy with counsel, the Chancellor stated that the 1981 adoption decree cut off any child support obligation accruing after the decree. The Chancellor stated further that the child support obligation could not be pursued with respect to any payments owed prior to 1984 because a five-year statute of limitations was in effect until 1989 when it was increased to 10 years, and Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), held that the revision could not increase the limitations period for a support claim already barred.

It is thus clear that the Chancellor did not consider the claim of Daniel and Sonya for support owed for a period prior to their adoption to be barred by the adoption. Rather, he applied the five-year statute of limitations which would have barred a claim brought by Daniel’s and Sonya’s mother if it had been filed in 1991 as was this suit. The question we must answer is whether the statute which would have barred the claim of the children’s mother also stands as a bar to the children’s claim.

In Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992), we recognized that, according to the United States Supreme Court, there is no constitutional impediment, except in title to property cases, to increasing the length of a limitation period and making the increase retroactive to cover claims already in existence. We noted, however, that the law of this State and many others is that the General Assembly may not expand a limitation period so as to revive a claim already barred.

In the Johnson case we recited the recent history of the statute of limitations applicable to child support claims as follows:

Prior to 1989, the statute of limitation for child support arrearages was five (5) years. Ark. Code Ann. § 16-56-115 (1987). In 1989, the General Assembly changed the limitation to ten (10) years. Ark. Code Ann. § 9-14-236 (Repl. 1991). We held the 1989 amendment did not apply retroactively. Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990). The General Assembly wanted to further enlarge this statute of limitation, so it passed Act 870 of 1991, which amends Ark. Code Ann. §§ 9-14-105 & 9-14-236, and provides child support actions can be “brought at any time up to and including five (5) years beyond the date the child for whose benefit the initial support order was entered reaches the age of eighteen (18) years.” The 1991 act also provides that the enlarged limitation “shall retroactively apply to all child support orders now existing.”

Our ultimate holding in the Johnson case was that the mother could not have the benefit of the new statute of limitations with respect to a claim for child support arrearages which were already barred when the new statute of limitations came into effect.

As noted above, this case is a little bit different from the Johnson case and from the Sullivan case because it is the children, and not the custodial parent, who pursue the claim. Prior to 1989, there was no statutory authority for the children to pursue the claim. Act 383, §1, of 1989 listed as persons who could bring the claim, “Any person eighteen (18) or above to whom support was owed during his minority.” Here is how the statute, codified as Ark. Code Ann. § 9-14-105, which deals with the support obligation read after the 1989 Act:

(a) The chancery courts in the several counties in this state shall have exclusive jurisdiction in all civil cases and matters relating to the support of a minor child or support owed to a person eighteen (18) or older which accrued during that person’s minority.
(b) The following may file a petition to require the noncustodial parent or parents of a minor child to provide support for the minor child:
(1) Any parent having physical custody of a minor child;
(2) Any other person or agency to whom custody of a minor child has been given or relinquished;
(3) A minor child by and through his guardian or next-of-friend; or
(4) The Department of Human Services when the parent or person to whom custody has been relinquished or awarded is receiving assistance in the form of Aid to Families with Dependent Children or has contracted with the department for the collection of support.
(c) Any person age eighteen (18) or above to whom support was owed during his minority may file a petition for a judgment against the nonsupporting parent or parents. Upon hearing, a judgment may be entered upon proof by a preponderance of the evidence for the amount of support owed and unpaid.
(d) As used in this subchapter, unless the context otherwise requires:
(1) “Minor child” means a child less than eighteen (18) years of age.
(2) “Noncustodial parent” means a parent who resides outside the household or institution in which the minor child resides.

Subsections (e) and (f) of the Statute were added by Act 870 of 1991:

(e) Any action filed pursuant to this subchapter may be brought at any time up to and including five (5) years from the date the child reaches the age of eighteen (18) years of age.
(f) This section shall apply to all actions pending as of March 29, 1991, and filed thereafter and shall retroactively apply to all child support orders now existing.

Sonya and Daniel Chunn argue they could not have brought this action until after they reached eighteen, and the law allows them to bring it for five years after reaching that age. That is, of course, a correct statement, but it does not make their claim a different one from that which was barred when their mother failed to bring it within the then-applicable five-year limitation period. As we read the statute it contemplates one support obligation which may be pursued by different persons at different times. The limitation period is applicable to all of them, and the law we espoused in the Sullivan and Johnson cases applies; the statute of limitations cannot be amended to extend the time to bring a claim which has been barred.

While it may seem unfair to hold that a child for whose benefit support was ordered is barred from seeking the arrearages because his or her custodial parent failed to assert the right when it was his or her prerogative to do so, we must also look to the classic finality rationale to which we alluded in the Johnson case. For more than five years after the arrearages accrued the person who could have brought the action to collect them did not do so. The law giving the children a claim had not come into existence. Given the law at the time, Mr. D’Agostino could have assumed properly that the claim was barred. He had a vested right to rely on the statute of limitations as a defense, and that could not be changed by subsequent legislation.

Affirmed.

Hays and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. The majority has chosen to read Ark. Code Ann. §9-14-105 (Supp. 1991) narrowly so as to defeat the claims of Sonya and Daniel Chunn for child support which their biological father failed to pay pursuant to an order of the chancery court. A more plausible reading, and more consistent with the clear legislative intent, is to give viability to claims for unpaid child support if brought within five years following the 18th birthday of such dependent children.

The majority concludes that these claims are barred because before paragraphs (e) and (f) of § 9-14-105 were added in 1991 (Section 1 of Act 870) the claim of Betty D’Agostino, the mother of these appellants, lapsed by the running of the statute of limitations and under the holding of Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992), claims which have become barred cannot be resurrected by subsequent legislation.

I disagree that the tenet of that case governs this one. The cause of action of minor children dealt with in § 9-14-105(3) and made retroactive “to all child support orders now existing” inures directly to Sonya and Daniel Chunn and is not subject to defeat because their mother permitted her own claim to lapse. I am aware of no rule of law that permits the claim of one individual to be barred by the inaction of another. See Wilson v. Wilson, 464 So.2d 496 (Sup. Ct. Miss. 1985), and Biggs v. St. Louis, Iron Mountain & Southern Railway Co., 91 Ark. 122, 120 S.W. 970 (1909).

I disagree, as well, that these appellants had no cause of action prior to § 9-14-105(3). The law generally recognizes a cause of action by a child against a parent for support. See Simonds v. Simonds, 154 F.2d 326 (Ct. of App., D.C. 1946), 13 ALR 2d 1138 [“The duty of parents to provide support for their minor children is regarded in practically all American jurisdictions as a legal as well as a moral duty. The legal problems arising in this connection relate namely to the means and methods for enforcing the performance of such duty.”] This court has recognized a cause of action directly by children against a father for nonsupport. See Upchurch v. Upchurch, 196 Ark. 324, 117 S.W.2d 339 (1938) [“The chancery court did not pass on the question of support of the children, but merely denied the wife alimony. Of course, the children are not barred from bringing a suit against their father, and whether they could recover or not would depend upon all the facts and circumstances.”] I believe the order appealed should be reversed and the cause remanded.

Glaze, J., joins in this dissent.


author: David Newbern, Justice.

text:
    Bula NUNLEY and Jimmy Cossey v. H.M. ORSBURN
    92-706
    847 S.W.2d 702
    Supreme Court of Arkansas
    Opinion delivered February 22, 1993

      John Lloyd Johnson, for appellant.

      Bullock & Van Kleef, by: H. Clay Fulcher and John D. Van Kleef, for appellee.
   David Newbern, Justice.

This case involves a boundary dispute between adjacent landowners, appellant Bula Nunley and appellee H.M. Orsburn. The disagreement centers on the location of the southern boundary of Nunley’s property and the northern boundary of Orsburn’s property. The parties agree on the western point of beginning of the line, but Nunley claims the eastern end of the boundary is 23 feet south of the point contended by Orsburn. Orsburn contends he owns the triangle of land in dispute by virtue of an oral boundary agreement between himself and Nunley. The Chancellor found Nunley and Orsburn agreed on the location of the boundary line, and title to the property in dispute was quieted in Orsburn. The Chancellor also enjoined Nunley and her son, Jimmy Cossey, from interfering with Orsburn’s use of the land.

Nunley contends the Chancellor erred by (1) finding she and Orsburn agreed on the proper location of the boundary line, (2) determining a 1990 deed to her invalid, (3) refusing to find she acquired the property by adverse possession, and (4) refusing to determine Orsburn purchased his property with notice of her claim.

Because there is no doubt that there was a boundary dispute, and the Chancellor decided the parties had agreed on a settlement, the first point is the only one we need address. We hold the evidence was sufficient to support the Chancellor’s finding that Nunley and Orsburn entered into a valid boundary agreement.

This case begins with a 1960 conveyance of one acre of land from Parker and Betty Sue Parker to Goble and Bula Nunley. The acre conveyed to the Nunleys was located north of land retained by the Parkers. Evidence was introduced that the Nunleys gardened the acre but did not live there.

In January of 1987, Betty Sue Parker and other heirs of the Parker Parker estate conveyed the land located south of the Nunley property to William and Delores Thornsberry. William Thornsberry testified that after he bought the land he was informed that Goble Nunley disagreed with the line set by surveyor John Hale in 1986 which the Thornsberrys thought to be their northern boundary. Dardanelle Abstract & Title insured Thornsberry’s title and, as a result of the defect, bought the land back from the Thornsberrys, receiving a warranty deed dated November 19, 1987.

On May 8,1989, Orsburn bought the property from Dardanelle Abstract & Title with knowledge of the boundary dispute. Bill Strait, the owner of the title company, stated he told Orsburn about the dispute and advised him to get an agreement with Bula Nunley before building anything on the property. Orsburn testified he met on the property with Bula Nunley and the attorney who had represented Goble Nunley’s estate, Kenneth Parsley. Orsburn stated he showed Nunley the posts surveyor Hale had put down for the location of the line and asked her if she had any objection to their location. Orsburn said Nunley agreed the boundary line was correct. Orsburn testified he relied on the agreement and placed a storage building on the property and made over $40,000 in improvements on the land.

Parsley testified he believed Nunley and Orsburn agreed on the location of the line by referring to a post which had been placed in the ground. Parsley did not think there was any remaining conflict between Nunley and Orsburn on the location of the line. At trial, Nunley denied having agreed that the Hale survey line would be the boundary between her land and Orsburn’s. She testified her husband had told her he owned one acre and 23 feet of property which was not reflected by the Hale boundary line. Nunley admitted paying taxes on only the one acre of land until 1990. Cossey testified he was not present when the alleged agreement was reached between his mother and Orsburn regarding the boundary.

In 1990 Cossey asked Betty Sue Parker to execute a correction warranty deed conveying the land in dispute to Nunley. Parker testified she did not know she was conveying property which had already been conveyed to the Thornsberrys in 1987. Parsley, who prepared the 1990 deed, stated he did not know the property description overlapped a description in an existing deed. He based the 1990 deed on a survey given to him by Cossey.

After Orsburn saw the 1990 deed, he went to see Nunley and reminded her of their prior agreement. Orsburn testified Nunley told him she realized after the agreement that she owned more land than she originally thought. Nunley told Orsburn she was distressed and not thinking straight at the time of the agreement.

In late 1990 or early 1991, Cossey began building a fence on the line Nunley claimed to be the proper boundary between the properties. Because this fence prohibited access to Orsburn’s storage facility, he filed this quiet title suit. He also requested a permanent injunction prohibiting Nunley and Cossey from interfering with his use of the land.

The Chancellor quieted title in the disputed land in Orsburn. The Court found Orsburn and Nunley agreed that the boundary line in the 1986 Hale survey would be the northern boundary of Orsbürn’s property and the southern boundary of Nunley’s property. The Chancellor also enjoined Nunley and Cossey from building a fence or interfering with the use of the property.

Boundary agreement

Nunley argues there was insufficient evidence supporting the Chancellor’s finding that she and Orsburn agreed on the location of the boundary line. Although we review chancery cases de novo, we will not set aside a chancellor’s findings of fact unless clearly erroneous. Ark. R. Civ. P. 52(a) (1992). We must also give due regard to the chancellor’s opportunity to judge the credibility of witnesses. Dudley v. Little River County, 305 Ark. 102, 805 S.W.2d 645 (1991).

For there to be a valid oral boundary line agreement, four factors must be present: (1) there must be uncertainty or dispute about the boundary line; (2) the agreement must be between the adjoining landowners; (3) the line fixed must be definite and certain; and (4) there must be possession following the agreement. Malone v. Mobbs, 102 Ark. 542, 146 S.W. 143 (1912); Payne v. McBride, 96 Ark. 168, 131 S.W. 463 (1910). See Jones v. Seward, 265 Ark. 225, 578 S.W.2d 16 (1979); Bryson v. Dillon, 244 Ark. 726, 427 S.W.2d 3 (1968).

The Chancellor was presented with considerable evidence that there was a dispute or uncertainty regarding the location of the boundary line prior to the oral agreement. Two prior owners of the property, Thornsberry and Strait, testified they were aware that Goble Nunley contested the location of the boundary line as set by the 1986 survey. Orsburn stated his knowledge of the dispute caused him to enter into a boundary agreement with Bula Nunley. Clearly, Orsburn and Nunley were adjoining landowners as they shared a common boundary line. There was also evidence that the boundary line which had been set by the 1986 survey was definite and certain. Testimony was presented that the line was marked on the property with posts which had been placed on the property by Hale. Finally, there was evidence that after the agreement, Orsburn went into possession by constructing a storage building to which there was no objection by Nunley until after the building was completed. Access to the building required use of the disputed land. We cannot hold the Chancellor’s finding of facts clearly erroneous of a boundary agreement was sufficient.

Affirmed.


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

text:
    Danny T. SHRUM, Jr., and Martha Shrum v. SOUTHERN FARM CASUALTY INSURANCE COMPANY and Farm Bureau Mutual Insurance Company of Arkansas, Inc.
    92-832
    848 S.W.2d 395
    Supreme Court of Arkansas
    Opinion delivered February 22, 1993
    [Rehearing denied March 29, 1993.]

      Daily, West Core, Coffman & Canfield, by: Michael C. Carter, for appellant.

      Warner & Smith, by: Joel D. Johnson, for appellee.
   Tom Glaze, Justice.

This tort case was commenced by appellant Danny T. Shrum, Jr. and his wife after he slipped and fell on the bathroom floor of the leased-office space of the appellees, Southern Farm Casualty Insurance Company and Farm Bureau Mutual Insurance Company of Arkansas, Inc. After reviewing the pleadings, answers to interrogatories and depositions, the trial court granted the appellees’ motion for summary judgment from which Shrum brings this appeal.

First, we dispose of appellees’ argument that Shrum was a licensee, not a business invitee, at the time of his fall. An invitee is a person who goes upon the premises for a purpose connected with an activity which the owner carries on or permits to be carried on on the premises for a purpose mutually beneficial to himself and the owner and by invitation of the owner. Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992). The property owner owes an invitee a duty to use ordinary care. Id. The facts here clearly establish Shrum to be an invitee.

Shrum had maintained insurance with appellees. On the day of his fall, he had gone to appellees to make sure the life insurance he had covering the indebtedness on his house would not be prematurely canceled on the date reflected on a notice mailed to him by appellees. Shrum testified that he saw Billy Moody, appellees’ agent, at a bank, and asked Moody about the notice Shrum received. Moody told Shrum to go see Shrum’s agent with appellees, Richie Grandstaff, about the matter. Shrum then went directly to appellees’ office where he saw Grandstaff, but before discussing business with Grandstaff, Shrum utilized appellees’ bathroom when and where he fell.

Appellees suggest Shrum came to their office on business that benefitted only himself; therefore Shrum was a licensee, not an invitee. The record reflects to the contrary. Shrum had been a customer of appellees for at least a seven or eight year period of time and the appellees obviously benefited from that relationship. This fact of a limited business relationship cannot be diminished merely because Shrum’s fall on appellees’ premises occurred at a time when Shrum was attempting to correct what he purportedly believed to be mistakes made by Farm Bureau in (1) crediting insurance payments made by Shrum and (2) attempting to cancel his insurance prematurely. Appellees’ agent, Billy Moody, told Shrum to see agent Grandstaff to correct these problems, and relying on that advice, Shrum proceeded to the appellees’ office to do just that. We have no problem in concluding that, based on these facts, Shrum was an invitee.

The paramount issues in this appeal are whether Shrum has shown that there is an issue of material fact as to whether soap on appellees’ bathroom floor when Shrum fell was there due to appellees’ negligence, or whether the soap had been on the floor for such a length of time that appellees knew of its presence and failed to use ordinary care to remove it. See, e.g. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270(1987). This court has stated that the mere fact a patron slips and falls in a store does not raise an inference of negligence. Id. To prevail against appellees’ motion for summary judgment, Shrum is required to show that a genuine issue of material fact exists in showing Shrum’s injuries resulted from the appellees’ negligence and, in deciding whether Shrum has succeeded, we view all reasonable inferences in his favor. See Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992).

Our review of the record shows that, when Shrum went to appellees’ office to see Grandstaff, appellees’ district claims manager, Paul Mourot, was conducting his monthly meeting of his adjustors. Immediately prior to Shrum’s use of the appellees’ bathroom, Mourot and other adjustors or agents of appellees had already been in and emerged from the room. The pertinent facts and sequence of events surrounding Shrum’s fall are as follows:

(1) A plastic container of liquid soap was kept on the sink, not the wall, in the appellees’ bathroom.

(2) The appellees’ insurance agents, adjustor or secretary in the office bore the duty and responsibility to clean and maintain the bathroom.

(3) As previously mentioned, appellees’ agents or adjustors had entered the bathroom prior to Shrum, and appellees’ supervisory agent, Paul Mourot, said that he was the last person to enter and leave the bathroom before Shrum entered.

(4) Mourot testified he inspected the bathroom floor before leaving, and he would have observed soap if any had been on the floor.

(5) Mourot testified that if there was a problem with the building or if he needed something done, he would have contacted agent, Billy Moody, about it.

(6) After Shrum entered the bathroom and washed his hands, he slipped and fell, and immediately afterwards, looked where he had been standing and saw some soapy-Iooking stuff on the floor.

(7) Agent, Billy Moody, testified that he learned Shrum was hurt and went to help him. Upon entering the bathroom, Moody said that Shrum warned him there was something slick on the floor and Shrum said, “I think its soap.”

(8) Moody found soap on the floor which was about the size of a silver dollar. He cleaned up the soap, but did not preserve it.

(10) Both Mourot and Shrum denied having spilled any soap while present in the bathroom.

In viewing the above facts favorably to Shrum, one could definitely conclude soap was on the bathroom floor and the source of the soap was from the plastic soap container kept on the sink. Shrum slipped on the soap where he stood ready to exit the bathroom. It also could reasonably be inferred that, when Mourot inspected the bathroom floor, he either overlooked the soap or, having seen the soap, he failed to exercise ordinary care to remove it, believing he would later contact Moody about it. Either view of the facts reflects a material fact question which should be presented to a jury.

Appellees suggest one further point by arguing Mourot had no responsibility for cleaning appellees’ bathroom because his principal office was in Little Rock, not Fort Smith. Mourot’s own testimony reflects he inspected appellees’ bathroom floor, and if he had seen soap, he would have remedied the problem. Clearly Mourot undertook the same duty his other cohorts had in keeping the premises clean. Too, Mourot was a regular monthly user of appellees’ office facilities, and inferentially at least would have been responsible along with other of appellees’ local agents and employees to see that their bathroom facilities were cleaned and maintained properly.

For the reasons set out above, we reverse the trial court’s' granting of appellees’ summary judgment motion and remand for further proceedings.

Dudley, Newbern and Brown dissent.

David Newbern, Justice,

dissenting. Accompanying their motion for summary judgment the insurance companies presented discovery responses from which it could be concluded that there was no negligence on their part either in placing soap on the bathroom floor or in allowing it to remain there. One or the other must be shown for the Shrums to recover. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 874 (1991); Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986); Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989).

In response, the Shrums have presented no reference to evidence by which they can prove negligence either in placing soap on the floor or in allowing it to remain there. Mere presence of soap on the floor is not enough. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992); Diebold v. Vanderstek, 304 Ark. 78, 799 S.W.2d 804 (1990). The Trial Court was eminently correct in granting the summary judgment motion.

I respectfully dissent.

Dudley, J., joins in this dissent.

Robert L. Brown, Justice,

dissenting. This decision infers negligence from the existence of some “soapy looking” substance on the bathroom floor. No proof was presented on how it got there — the appellant said in deposition that he did not know — or how long it had been on the floor. Yet, the majority reverses a summary judgment in favor of Southern Farm.

This runs counter to longstanding case law:

[T] he presence of a foreign or slick substance which causes a slip and fall is not alone sufficient to prove negligence. It must be proved that the substance was negligently placed there or allowed to remain.

Diebold v. Vanderstek, 364 Ark. 78, 79, 799 S.W.2d 804, 805 (1990); see also Collyard v. American Home Assur. Co., 271 Ark. 228, 607 S.W.2d 666 (1980); LeMay v. W&R Corp., 262 Ark. 530, 558 S.W.2d 154 (1977). No such proof exists in this case. Nor are facts presented from which negligence of the appellees could be reasonably inferred. Diebold v. Vanderstek, supra; McKay v. St. Paul Ins. Co., 289 Ark. 467, 711 S.W.2d 834 (1986).

In a related vein, we have held that the mere fact that a patron slips and falls in a store does not give rise to an inference of negligence. Dye v. Wal-Mart Stores, Inc., 300 Ark. 197, 777 S.W.2d 861 (1989); Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989); Skaggs Co. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986); Safeway Stores, Inc. v. Willman, 289 Ark. 14, 708 S.W.2d 782 (1989).

We have affirmed summary judgment in favor of the premises owner where the plaintiff could not show that the owner had knowledge that the substance was on the floor or parking lot and where circumstances did not exist from which that knowledge could be inferred. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992) (fall occurred due to a “brown, slimy substance”); Diebold v. Vanderstek, supra (fall blamed on a “green, slimy substance”). Similarly, in Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991), we reversed a jury verdict in favor of the injured party due to the absence of substantial evidence on how the faulty substance, presumably water, got on the floor. We could only speculate on this point which was sufficient to sustain a verdict.

The same is true in the present case. Shrum stated he did not know how the “soapy looking” substance he slipped on got on the floor, and we are left to speculation. This is not a situation such as we had in Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 782 (1989). In Boykin, an employee was rinsing soap off of cars six feet away from where Boykin slipped on soapy water. Knowledge on the employer’s part under those circumstances could readily be inferred. Here, there was nothing shown to suggest to Southern Farm that something was amiss. The mere presence of a plastic soap container in the restroom does not require a trial on the merits.

Knowledge of a suspect substance can be inferred from the length of time that it is on the floor, but we have held that the duration must be substantial. Bank of Malvern v. Dunklin, supra; Johnson v. Arkla, Inc., supra; Johnson & Kroger v. Hemphill, 245 Ark. 699, 434 S.W.2d 818 (1968). In Johnson v. Arkla, Inc., we cited authority to the effect that one or two hours might not be sufficient time from which to infer knowledge and, therefore, negligence. In the case before us, no proof of duration was submitted by the appellant.

In sum, there was no proof of previous problems with soap in the bathroom, no proof that a representative of the responsible party had any knowledge of a restroom problem, nothing to evidence that the responsible party had anything to do with the substance on the floor, and no showing that the “soapy looking” substance had been on the floor for any period of time. We are left, thus, to raw speculation.

Under comparable facts, the South Carolina Court of Appeals affirmed a directed verdict when the plaintiff had alleged a slip and fall on an “oily substance” in a restroom. Dennis v. Wal-Mart Stores, Inc., 392 S.E.2d 810 (S.C.App. 1990). The Court stated:

In the instant case, there was no evidence that the oily substance was caused by a specific act of Wal-Mart or that Wal-Mart had actual or constructive knowledge that the oily substance was on the restroom floor.

392 S.E.2d at 811. So it is in the case at hand.

What the majority is requiring henceforth is an endless procession of restroom inspections, and that may not even be sufficient because under the opinion a showing of how the substance got on the floor and its duration are discounted. The fact that soap was in a plastic container in the bathroom and the mere possibility that Paul Mourot may have missed seeing soap on the floor (he says he did not) are enough to send the matter to trial, according to the majority. I would require something more.

Dudley, J., joins in this dissent.

       While these are separate companies which have their genesis out of the Farm Bureau Federation, we refer to them collectively as appellees for the sake of simplicity in writing.

       We note that the Sebastian County Farm Bureau furnished this office space to appellees, but the appellees’ agents and employees were responsible for furnishing supplies to and cleaning the bathroom.

       Billy Moody testified Shrum had done business with appellees at least for as long as Moody worked for appellees in Fort Smith.


author: Tom Glaze, Justice.

text:
    Annette THOMAS v. STATE of Arkansas
    CR 92-412
    847 S.W.2d 695
    Supreme Court of Arkansas
    Opinion delivered February 22, 1993

      Gibson Law Office, by: Charles S. Gibson and C.S. “Chuck" Gibson II, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant, Annette Thomas, was convicted by a jury of being an accomplice to first degree murder of Julia Golden and sentenced to life imprisonment. The state’s case showed that Thomas had a female lover named Jody Matthews who became jealous of Thomas’s relationship with Golden. The theory of the state’s case was that Thomas and Matthews went to Golden’s apartment in the early hours of September 24,1989, because Thomas wanted Golden to explain that she and Golden were not having an affair. Based upon an oral statement Thomas purportedly gave Officer Tim Osborne after Golden’s murder, the state asserted at trial that Matthews disbelieved Golden’s explanation, and in a jealous rage, Matthews pulled a knife and stabbed and slashed Golden to death. Thomas’s statement further reflected that, during this attack, Thomas tried to pull Matthews off of Golden. However, the state offered autopsy evidence showing Golden’s wounds included ones caused by an object like an ice pick. An ice pick belonging to Thomas was ultimately recovered from her car. Based on this evidence along with a luminol test which indicated the ice pick had blood on it, the state theorized Thomas actually assisted Matthews in her attack on Golden.

At trial, Thomas raised a number of objections and now argues four of them on appeal. She argues the trial court erred in (1) admitting the state’s luminol tests, (2) refusing her the right to introduce evidence on cross-examination to impeach an officer’s credibility, (3) refusing to grant Thomas’s directed verdict motions and (4) instructing the jury on accomplice liability. We find merit in Thomas’s luminol test argument, but we first address her directed verdict argument because it involves a challenge to the sufficiency of evidence which must be considered prior to a review of trial errors. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992).

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach, 310 Ark. 119, 835 S.W.2d 852. In determining the sufficiency of the evidence, we need only ascertain that evidence most favorable to appellee, and it is permissible to consider only that testimony which supports the verdict of guilty.

Here, as previously mentioned, Thomas was charged and tried as an accomplice to first degree murder. In this respect, she allegedly was the accomplice of Jody Matthews. Under Ark. Code Ann. § 5-2-403 (1987), an accomplice is defined as follows:

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

So long as a defendant renders the requisite aid or encouragement to the principal with regard to the offense at issue, the defendant is an accomplice even though the defendant may have rendered the encouragement or aid reluctantly. See Sumlin v. State, 266 Ark. 709, 722, 587 S.W.2d 572, 578 (1979). In addition, a defendant can be an accomplice to murder even though the defendant’s participation in the murder is, compared to that of the principal, relatively passive. See Henry v. State, 278 Ark. 478, 486-87, 647 S.W.2d 419, 424, cert. denied, 464 U.S. 835 (1983). Finally, the presence of an accused in the proximity of a crime, opportunity and association with a person involved in the crime in a manner suggestive of joint participation are relevant facts in determining the connection of an accomplice with the crime. Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979).

The state presented evidence supporting its theory that Thomas had a lover’s relationship with Matthews and that, as a result of a jealous rage, on the early morning of September 24, 1989, Matthews stabbed Golden to death in Thomas’s presence. The state’s case largely relied on an oral statement that Thomas purportedly gave to Officer Osborne, who investigated Golden’s murder, but Thomas’s sister and brother-in-law, who resided across from Golden’s apartment, confirmed having seen the presence of Thomas’s car outside Golden’s apartment complex during the early morning hours on the day Golden was killed.

The state also offered evidence showing that some of Golden’s wounds were the result of an ice pick, and that, three days after Golden’s murder, the police discovered an ice pick in Thomas’s car. While Thomas explained she had the ice pick in her car for self protection after Golden’s death, Chief Harris testified that, during his investigation, he asked about the ice pick used in Golden’s slaying, and Thomas said that Matthews had possessed the ice pick. When Harris asked where the ice pick was now, Thomas said, “Y’all had it,” thereby implying that the ice pick used in stabbing Golden was the one the police retrieved from Thomas’s car. Officer Osborne related similar testimony. Osborne further stated that Thomas later said that she had lied about the ice pick, and she also recanted her earlier oral statement in its entirety, by claiming she knew nothing about the ice pick and denied being present when Golden was slain. At trial, Thomas maintained her story that she was not present when the murder occurred. This court, of course, has often stated that false and improbable statements explaining suspicious circumstances are admissible as proof of guilt. Bennett v. State, 297 Ark. 115, 754 S.W.2d 799 (1988); Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983).

Also significant to its case, the state introduced the results from luminol testing indicating that blood appeared on the ice pick found in Thomas’s car. When considering all of the foregoing evidence, a jury could conclude that Thomas jointly participated with Matthews in Golden’s murder, at least by furnishing the ice pick used by Matthews in her brutal slaying of Golden even though the ice pick, itself, was shown only to have produced non-lethal wounds to Golden’s body.

We turn now to the point that gives us the most concern, namely, whether the trial court erred in failing to either (1) exclude the luminol test results conducted on the ice pick found in Thomas’s car or (2) grant a continuance so Thomas could sufficiently rebut those results. This issue arose after the trial court ruled at least once prior to trial that the state could not introduce the luminol test results at trial.

At a suppression hearing held on March 13, 1991, the defense asked that the state not be able to mention the ice pick found in Thomas’s car because the state had lost or misplaced the ice pick. The court denied Thomas’s request. Sometime later, apparently shortly before trial in August of 1991, it became known that Officer Gilbert had the ice pick and he had sent it to the crime laboratory where Donald Smith, an expert, conducted a luminol test. Smith found the ice pick bore a speck of matter that tested positive as blood. Smith could not discern whether the blood was animal or human. This information was immediately given the prosecutor who in turn informed Thomas’s counsel of this new evidence. On August 29,1991, counsel for the state and Thomas were selecting the jury, and during a break, the state asked the trial court to rule the luminol test results admissible, but the court refused, stating the defense was not given time to procure an expert to rebut the state’s test. The state then asked to nol pros the case, but it later withdrew its motion. Instead, the state on the day of trial, August 30,1991, chose to make its record on the luminol admissibility issue after the parties completed their jury selection.

The state put on Officers Gilbert and Osborne, Investigator John McCord and Donald Smith who testified that, once the ice pick was located, it was their “impression” that Thomas’s counsel wanted this luminol test conducted. Thomas’s counsel denied that he had joined in such a request and pointed out that the crime lab’s form showed the requesting agency was the prosecuting attorney. The trial court reversed his prior ruling, finding that Thomas’s counsel had joined with the state in requesting the test be conducted. Regardless of the correctness of the trial court’s finding, the record is clear that Thomas’s counsel never indicated he would agree to the admissibility of the results of the luminol test, nor did he agree to forego any challenge to the reliability of such a test. While there is no indication that the state intentionally withheld the ice pick or delayed testing of it, we have held that information requested by the defendant in a discovery motion must be forwarded in sufficient time to permit beneficial use of it. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985).

Here, Thomas had filed a continuing discovery request that sufficiently covered scientific test results such as the ones obtained by the state in this case. In Lewis, we held that, when the state fails to comply with such a discovery request, the court may order the undisclosed evidence excluded, grant a continuance, or in some instances a recess, or enter such other order as it deems proper under the circumstances. In Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981), this court concluded that, if the court’s discovery rules are to be meaningful, the rules must be complied with where there has been a timely request, there is no finding of compliance by the state and there is prejudice to the defense.

In the present case, Thomas’s counsel made a timely request for all scientific test results and actually received results from a serology test which was taken before the luminol test and which indicated no blood shown on the ice pick. The state’s luminol test results obviously impacted on Thomas’s serology test results that she intended to introduce. Because the trial court on the day of trial reversed its earlier ruling so as to allow the state to admit the luminol test results into evidence, Thomas’s counsel had no time to obtain an expert in an effort to rebut the state’s evidence.

The importance of the trial court’s new ruling is reflected in the trial court’s remarks offering to assist Thomas in obtaining an expert, saying, “We’ll see if we can get some independent test,” “. . . we’re going to try to get you an expert,” . . . we’ll try to get you somebody [counsel].” No expert was forthcoming. And while the state on appeal suggests Thomas’s counsel may have waived his right to such an expert because he failed to show he made any effort to do so, we believe the record better suggests that neither the trial court, prosecutor nor Thomas’s counsel could locate a luminol test expert on such short notice. After the trial court ruled to admit the test results, the trial commenced immediately thereafter. Thomas’s counsel simply had no time to obtain an expert.

Whether Thomas was prejudiced by the trial court’s refusal to grant her request for a continuance after its decision to admit the luminol results is evident from the state’s announced intention to nol pros its case against Thomas when the trial court had earlier ruled the luminol results inadmissible. Aside from the prosecutor’s earlier request to nol pros, one need only review the evidence hereinabove to realize that the ice pick and luminol results are key pieces of evidence on which the state’s case depends to show Thomas was Matthews’ accomplice in Golden’s murder. Thomas’s counsel had no time to make beneficial use of the luminol results given him by the state, nor did he have the opportunity to obtain an expert to review those results. Because the state failed to comply with the trial court’s discovery rules and the trial court erred in failing to take steps to remedy the state’s noncompliance, we must reverse and remand this case for a new trial.

Because we have already discussed the state’s evidence that we believe supported the state’s theory that Thomas was an accomplice in the first degree murder of Golden, we need not discuss further Thomas’s argument that the trial court erred in instructing the jury concerning Thomas’s status as an accomplice. Neither is it necessary to address Thomas’s argument that the trial court erred in refusing Thomas’s use of extrinsic evidence to impeach Officer Osborne’s testimony on cross-examination, since such evidentiary issue is unlikely to arise again at any retrial of this matter.

For the reasons above, we reverse and remand..

       Thomas argues that she never intended to attack Officer Osburne’s credibility on cross-examination, but did so only after Osborne volunteered that he had never done anything in the past for people to think he would lie.


author: Donald L. Corbin, Justice.

text:
    AMERICAN CASUALTY COMPANY of Reading, Pennsylvania v. Larry Don MASON
    92-1047
    848 S.W.2d 392
    Supreme Court of Arkansas
    Opinion delivered February 22, 1993

      Warner & Smith, by: Wayne Harris, for appellant.

      Nolan & Caddell, P.A., by: Bennett S. Nolan, for appellee.
   Donald L. Corbin, Justice.

This appeal involves the interpretation of our underinsured motorist statute. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(1 )(c). Larry Don Mason, appellee, was injured in the course and scope of his employment with Killoren Company of Arkansas, Inc. (Killoren) on June 1, 1989. Appellee was driving a 1986 one ton truck owned by his employer when a pickup truck driven by Ricky Beneaux crossed the center line and hit appellee’s vehicle head on. The parties to this action have stipulated that Ricky Beneaux was solely at fault for the accident and appellee suffered personal injuries equal to or in excess of Fifty Thousand Dollars ($50,000). Ricky Beneaux’s insurance company settled with appellee for the full amount of Mr. Beneaux’s policy, Twenty-Five Thousand Dollars ($25,000). Appellant, American Casualty Company of Reading, Pennsylvania (American Casualty), was Killoren’s insurer at the time of the accident. Appellee demanded payment from appellant of the maximum underinsured motorist coverage included in Killoren’s policy of Twenty-Five Thousand Dollars ($25,000). Appellant rejected the demand and appellee filed suit. The trial court held that under Ark. 335 of 1987 codified at Ark. Code Ann. § 23-89-209 (Supp. 1989) appellee was entitled to recover the Twenty-Five Thousand Dollars ($25,000) underinsured motorist coverage provided by appellant. Appellant’s sole point on appeal is that the trial court erred in interpreting Act 335 as allowing appellee to recover under its underinsured motorist coverage.

Appellant claims Act 335 is an unambiguous “difference of limits” or “excess” statute which was fundamentally changed by Act 209 of 1991 to an “add-on” statute. Under the “difference of limits” or “excess” method of computation of benefits, “an insured is not entitled to underinsured motorist benefits when the responsible party’s liability insurance limit equals or exceeds the amount of the insured’s underinsured coverage.” Henderson v. Universal Underwriters Ins. Co., 768 F. Supp. 688, 690 (E.D. Ark. 1991) (citations omitted). Appellee contends Act 335 was intended to be an “add-on” statute from the start and that the legislator’s intent is evidenced by the emergency clause contained in Act 209. Under the “add-on” method of computation of benefits, “an insured [can] receive the limits of his underinsured motorist coverage over and above any recovery from the responsible party if that recovery is not adequate to fully compensate the insured.” Id.

Act 335 of 1987 as codified at Ark. Code Ann. § 23-89-209 provided in pertinent part:

Every insurer writing automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicles in this state, shall make underinsured motorist coverage available to the named insured, which coverage enables the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle. Coverage limits shall be equal to the limits of liability provided by the underinsured motorist coverage to the extent the coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.

Act 209 of 1991, which was titled “AN ACT to Amend Arkansas Code 23-89-209 to Clarify the Law Pertaining to Underinsured Motorist Coverage; and for Other Purposes,” provided in pertinent part:

Subsection (a) of Arkansas Code 23-89-209 is hereby amended to read as follows:
“(a) Every insurer writing automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicles in this state shall provide underinsured motorist coverage to the named insured unless rejected in writing by the insured. The coverage shall enable the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle. Underinsured motorist coverage shall be at least equal to the limits prescribed for bodily injury or death under Arkansas Code 27-19-605. Coverage of the insured pursuant to underinsured motorist coverage shall not be reduced by the tortfeasor’s insurance coverage except to the extent that the injured party would receive compensation in excess of his damages.”

The emergency clause of Act 209 provided:

It is hereby found and determined by the General Assembly that the present underinsured motorist insuranee coverage law is being misinterpreted; that under the present misinterpretation persons covered by underinsured motorist coverage may not receive the benefits intended by the law; and that this act clarifies the law and should therefore go into effect immediately in order to resolve the misinterpretation as soon as possible. Therefore an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.

At dispute is the last sentence of Section 1 of Act 335 of 1987 codified at Ark. Code Ann. 23-89-209(a), which reads: “Coverage limits shall be equal to the limits of liability provided by the underinsured motorist coverage to the extent the coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.” Appellant claims the last sentence of Act 335 is unambiguous and thus we should apply the plain meaning rule to determine that Act 335 is a “difference of limits” statute. Therefore, since the policy limit of the tortfeasor was equal to the amount of the underinsured motorist coverage, appellant is not liable to appellee for payment of any amount for underinsured motorist coverage. Appellee contends the last sentence of Act 335 clearly provides that an insured is entitled to recover underinsured motorist coverage benefits for damages sustained which exceed the coverage of the tortfeasor disregarding the amount of the tortfeasor’s liability insurance. Although we have not specifically addressed this issue previously, in Shelter Mutual Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992), where the issue was whether appellant had made underinsured motorist coverage available to appellee in compliance with the statute, we indicated the amount of the tortfeasor’s coverage had no effect on appellee’s recovery under underinsured motorist coverage except that appellee could not be reimbursed twice for the same damages. The United States District Court for the Eastern District of Arkansas addressed this very issue and decided Act 335 of 1987 was intended to be an “add-on” statute. Henderson, 768 F. Supp. 688.

The basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. Roy v. Farmers & Merchants Ins. Co., 307 Ark. 213, 819 S.W.2d 2 (1991). Where the language of a statute is plain and unambiguous, we determine legislative intent from the plain meaning of the language used and we do not resort to a search for legislative intent. Id. “However, when the statute is ambiguous, we must give effect to the intent of the legislature in adopting the statute.” McGee v. Amorel Public Schools, 309 Ark. 59, 63, 827 S.W.2d 137, 139 (1992) (citation omitted). While each party feels the statute is clear and supports their, position when given its plain meaning, we feel Act 335 of 1987 is ambiguous and can be read to support either interpretation. We must, therefore, look elsewhere to discern the intent of the legislature. Changes to statutes made by subsequent amendments may be helpful in determining legislative intent. Nixon v. H & CElec. Co., 307 Ark. 154, 818 S. W.2d 251(1991). While we cannot clearly determine from the language of the statute whether the legislature intended underinsured motorist coverage to be provided in a “difference of limits” or “add-on” method, the changes made to section 23-89-209(a) by Act 209 of 1991, the title of Act 209, and the emergency clause of Act 209, clearly indicate the legislature intended underinsured motorist benefits under Act 335 of 1987 to be provided without regard to the amount of insurance carried by any liable party. Section 23-89-209(a) was amended a second time by Section 22 of Act 1123 of 1991, but the amendments made by Act 209 of 1991 were not affected. Therefore, we think the trial court correctly determined appellee was entitled to recover underinsured motorist coverage from appellant.

Affirmed.


text:
    William C. HICKSON v. STATE of Arkansas
    CR 92-602
    847 S.W.2d 691
    Supreme Court of Arkansas
    Opinion delivered February 22, 1993

      Lavender, Rochelle, Barnette & Dickerson, by: John M. Pickett, Paul L. Dickerson and Shannon Puckett, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, William C. Hick-son, appeals a judgment of the Miller Circuit Court convicting him of two counts of second degree murder and one count of first degree battery. The judgment was entered pursuant to a jury verdict and sentences appellant consecutively to terms of 20 years imprisonment for each murder conviction and 15 years imprisonment for the battery conviction. The total sentence is 55 years and our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 29 (D(b).

Appellant was originally charged with one count of capital felony murder and two counts of first degree battery in connection with a March 2, 1991, house fire involving a liquid accelerant. One victim, Raymond Call, was killed in the fire occurring on March 2, 1991. Another victim, Ralph Davis, was severely burned in the fire and died from complications of his burns on May 31, 1991. The third victim, Allen McClure, who is appellant’s uncle, survived the fire but not without suffering severe burns. Following Davis’ death, the felony information was amended to change the corresponding charge from battery to capital felony murder.

On appeal, appellant argues three points for reversal of the judgment. First, he argues the trial court erred in denying his motions for directed verdict on the capital felony murder charges. Second, he argues the trial court erred in admitting into evidence prejudicial photographs of the victims. Third, he claims the trial court erred in admitting into evidence a videotape of the crime scene showing Call’s body in the burned house. We find no merit to these arguments and affirm the judgment of conviction.

Appellant’s first argument is the trial court erred in denying his motions for directed verdict on the two charges of capital felony murder; the motions were made on grounds there was insufficient evidence of the underlying felony of arson. Appellant claims the state did not offer any proof that appellant possessed the mental state required for arson — purposefully causing property damage. Appellant acknowledges that the state offered some evidence that he intended to “burn someone up,” but claims neither this evidence, nor any other that was presented, is evidence of his intent to cause property damage or to commit arson. Appellant claims that at most, the evidence presented supports only a charge of first degree murder. As there is no proof of the underlying felony of arson, argues appellant, there is insufficient proof of capital felony murder and the trial court should have directed a verdict on those charges.

The state responds with the argument that appellant was not prejudiced by any asserted error relating to the capital felony murder charges because the jury found appellant guilty only of second degree murder, not capital felony murder. Appellant counters the state’s argument with the claim that he was prejudiced merely because the jury was qualified to impose the death penalty. He argues that because the jury was death qualified, it was prone toward convicting appellant and he was therefore prejudiced, even though he was acquitted of the capital felony murder.

We agree with the state that appellant was not prejudiced in this respect. Appellant’s argument as to prejudice, that death qualified juries are prone to convict, is one that we have previously rejected. Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). The United States Supreme Court has also rejected the argument and held that death qualified juries are constitutional. Lockhart v. McCree, 476 U.S. 162 (1986).

Ordinarily, we treat a challenge to the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). However, we need not review the sufficiency of the evidence in the present case because appellant moved for a directed verdict only on the capital felony murder charges and the jury acquitted defendant of the capital felony murder charges by finding him guilty of second degree murder. Even if we were to determine the trial court erred in denying appellant’s motions, the error would be rendered harmless by the verdict of guilt only as to second degree murder. If a defendant in a capital case does not receive the death penalty, he or she cannot obtain a reversal on appeal by pointing to errors relating to the jury’s consideration of the death penalty. Ward v. State, 298 Ark. 448, 770 S.W.2d 109 (1989); Allen v. State, 296 Ark. 33, 751 S.W.2d 347 (1988). Accordingly, we hold that due to the jury’s verdict of guilt only as to second degree murder, appellant was not prejudiced by an asserted error in the trial court’s denial of the motions for directed verdict on the capital murder charges.

Appellant’s second argument for reversal relates to the trial court’s admission into evidence of six photographs. Appellant specifically challenges the admission of State’s Exhibits 4, 7, 8, 18, 20, and 21. These exhibits depict the following:

(4) Allen McClure being treated by medical personnel;

(7) Raymond Call’s body in the burned house;

(8) Raymond Call’s body in the burned house; taken from a further distance;

(18) Ralph Davis’ face prior to autopsy;

(20) Raymond Call’s back prior to autopsy;

(21) Raymond Call’s face and trunk prior to autopsy.

Appellant claims the photographs are gruesome, highly prejudicial, cumulative, and offered by the prosecution only to inflame the jury.

The photographs in question were all the subject of a pretrial conference. The state proffered these photographs along with many others. Appellant stated his objections. After viewing the photographs and hearing arguments of counsel, the trial court denied appellant’s motion in limine to exclude the photographs. At trial, the trial court again ruled on the photographs and concluded they were admissible into evidence. The trial court made separate and distinct rulings on each photograph as each was admitted.

Exhibits 4,7, and 8 were admitted during the testimony of an investigating officer who stated the photographs were fair and accurate representations of the crime scene and would be helpful to the jury in understanding his testimony. Exhibit 18 was admitted during the testimony of the medical examiner who performed the autopsy on Ralph Davis. The medical examiner stated that Davis died from complications of his burns, some of which could be seen on his face and chest in Exhibit 18. Exhibits 20 and 21 were admitted during the testimony of the medical examiner who performed the autopsy on Raymond Call. The medical examiner stated Exhibits 20 and 21 would help her explain Call’s external injuries to the jury.

The admissibility of photographs is a matter within the sound discretion of the trial court and we do not reverse its rulings unless it abused its discretion. Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991). Even inflammatory photographs are admissible if they tend to shed light on an issue, enable a witness to better describe the objects portrayed, or enable the jury to better understand the testimony. Id. Moreover, as was done in the present case, a defendant may not concede he may have caused the victim’s injuries and relieve the state of its burden of proving his or her guilt beyond a reasonable doubt. Id.; Allen, 296 Ark. 33, 751 S.W.2d 347.

Given the trial court’s consideration of the questioned photographs on two separate occasions at the pre-trial conference and again at trial, we cannot say it admitted the photographs with “carte blanche” approval, see Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), or with a manifest abuse of its discretion. Accordingly, we affirm the trial court’s admission of the photographs into evidence.

Appellant’s third argument for reversal is that it was error to admit the videotape of the crime scene showing the house and Raymond Call’s body among the remaining debris. Appellant objects only to the playing of the portion of the tape showing Call’s body. He claims this was another opportunity for the state to present inflammatory evidence to the jury. He also claims the tape is cumulative, not helpful to the jury, and overwhelmingly prejudicial.

We have stated that a videotape is admissible if it is relevant, helpful to the jury, and not prejudicial. Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989). These are generally the same requirements for the admission of photographs. See Elk Corp. of Arkansas v. Jackson, 291 Ark. 448, 725 S.W.2d 829 (1987) (citing Berry, 290 Ark. 223, 718 S.W.2d 447).

The questioned videotape was introduced during the testimony of one of the investigating officers. The officer testified he was on the crime scene when the house was already engulfed in flames and ordered another officer to photograph and videotape the scene. The testifying officer stated the videotape accurately depicted the scene and would help the jury to understand his testimony. The videotape does show Call’s body among the debris of the burned house. However, videotapes, like photographs, are not rendered inadmissible merely because they are cumulative. See Allen, 296 Ark. 33, 751 S.W.2d 347.

Consistent with its rulings on the videotape at the pretrial conference, the trial court ruled limited portions of the tape admissible at trial, subject to the additional limitation that no audio be played for the jury. In order to ensure that the inadmissible portions of the tape were not inadvertently played to the jury, the tape was not played until later in the trial. Given that the trial court considered the admissibility of the videotape twice and placed limitations on the portions that could be published to the jury, we cannot say it abused its discretion in admitting the tape into evidence.

The judgment of conviction is affirmed.


author: Robert L. Brown, Justice.

text:
    Bruce RUTHERFORD, County Judge Benton County, Arkansas v. Robert W. BARNES
    92-1083
    847 S.W.2d 689
    Supreme Court of Arkansas
    Opinion delivered February 22, 1993

      George R. Spence, Deputy Prosecuting Att’y, for appellant.

      George, Morris & Spivey, by: David C. George, for appellee.
   Robert L. Brown, Justice.

Appellant Bruce Rutherford,

who is the county judge of Benton County, urges reversal of a real and personal property tax refund in the amount of $2,544.94 in favor of appellee Robert W. Barnes, a disabled veteran, on the basis that Barnes did not claim an exemption from the taxes for the applicable years in timely fashion. The argument is persuasive, and we reverse.

Appellee Barnes is a resident of Benton County, Arkansas, where he owns real and personal property in Bella Vista Village. The real property has been his homestead since 1980, and he has paid real estate taxes on it since that time. He has also paid personal property taxes. Barnes is a disabled veteran who has been awarded special monthly compensation by the Veterans Administration for the loss of, or the loss of use of, one or more limbs. His disability has existed since World War II.

Special tax provisions are made for disabled veterans under Ark. Code Ann. § 26-3-306 (Repl. 1992):

(a)(1)(A) A disabled veteran who has been awarded special monthly compensation by the Department of Veterans Affairs for the loss of, or the loss of use of, one (1) or more limbs, or total blindness in one (1) or both eyes, or for service-connected one hundred percent (100%) total and permanent disability shall be exempt from payment of all state taxes on the homestead and personal property owned by the disabled veteran. . . .
(b)(1)(A) A disabled veteran eligible for the exemption provided in this section and desiring to claim an exemption shall furnish to the collector a letter from the Department of Veterans Affairs verifying the fact that he is in receipt of special monthly compensation for the loss of, or the loss of use of, one (1) or more limbs, or total blindness in one (1) or both eyes, or for service-connected one hundred percent (100%) total and permanent disability.

On February 10,1990, after submitting a request for a letter in accordance with the statute, Barnes received Form 20-5455 from the Veterans Administration, certifying that he met the eligibility requirements for the exemption. Barnes then presented the form to the Benton County Collector and claimed any exemption to which he was entitled.

The Benton County Collector responded by letter that the appellee was exempted from paying 1989 property taxes and that the exemption would continue on a year-to-year basis, if the VA form were furnished annually. In 1991, Barnes delivered a new VA Form 20-5455 to the collector to cover the 1990 tax exemption. Barnes also made a verbal request for the refund of taxes for previous years, which the collector denied.

Barnes next met with the appellant, Benton County Judge Bruce Rutherford, and presented a written request for a refund of taxes paid for the years 1980 through 1988. The county judge agreed that Barnes was entitled to a refund of property taxes paid for the past three years (one of which —1989 — had already been exempted) and that a refund of taxes for 1987 and 1988 would be ordered.

Subsequently, the county judge ordered a refund of $1,181.81 in real and personal property taxes for 1987 and 1988, and it was paid. No other refund of property taxes paid by Barnes has been made.

Barnes filed a petition for declaratory relief and mandamus to direct the county judge to refund property taxes paid for the years 1980 through 1986, which amounted to $2,544.94, plus interest. The county judge responded that Barnes had not claimed the necessary exemptions and was barred from seeking a refund for overpayment of taxes by the three-year limitations period.

Barnes then filed a motion for summary judgment. The circuit court granted Barnes the relief requested and found that “all parties have acted reasonably and in good faith in their respective actions and legal positions.” The court concluded that “there is no limitation period provided by law which would apply to refunding of property taxes collected during years in which the property owner was actually exempt from tax. ... If the legislature has not specifically limited a right of action, the Court cannot do so.” The court awarded judgment in the amount of $2,544.94, with no interest.

County Judge Rutherford urges on appeal, as his primary point, that Barnes paid the taxes for the previous years in question and did not claim an exemption for those years under Ark. Code Ann. § 26-3-306(b)(l)(A). Without a claimed exemption, according to the appellant, there can be no certainty or finality regarding such taxes. Stated another way, Barnes paid the real and personal property taxes for the years 1980 through 1986 voluntarily and claimed no exemption for any one of those years in which he paid.

We have adopted in this state the common law rule that taxes voluntarily paid are not recoverable. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982) cert. denied 462 U.S. 1111 (1983). Thompson v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S.W.2d 375 (1953). In both Cash and Thompson, we quoted from Cooley, The Law of Taxation, Ch. 20, § 1282, in establishing the common law rule:

It is well settled that if the payment of a tax is a voluntary payment, it cannot be recovered back, except where a recovery is authorized by the provisions of a governing statute regardless of whether the payment is voluntary or compulsory. . . . Where voluntary payments are not recoverable, it is immaterial that the tax or assessment has been illegally laid, or even that the law under which it was laid was unconstitutional. The principle is an ancient one in the common law, and is of general application. Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as a reason why the State should furnish him with legal remedies to recover it back. Ignorance or mistake of law by one who voluntarily pays a tax illegally assessed furnishes no ground of recovery.

Cash, 277 Ark. at 503-504, 644 S.W.2d at 232; Thompson, 222 Ark. at 115, 257 S.W.2d 379.

Here, Barnes voluntarily paid his taxes for the years 1980 through 1986, and claimed no exemption for any one of those years. He is presumed to have known the law and his rights under the law. Accordingly, the decision of the circuit court is reversed, and the writ of mandamus is vacated.


author: Per Curiam.

text:
    Cleveland BAILEY v. STATE of Arkansas
    CR 92-1418
    848 S.W.2d 391
    Supreme Court of Arkansas
    Opinion delivered February 22, 1993

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant Cleveland Bailey was found guilty in 1991 of possession of cocaine with intent to deliver and possession of drug paraphernalia. He was sentenced as an habitual offender with more than one but less than four prior felony convictions to concurrent terms of imprisonment of sixty years for each conviction. We affirmed. Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991). On August 21, 1992, appellant filed in the circuit court a petition styled, “Petition for Declaratory Judgment and Writ of Mandamus to Enforce Judgment.” He contended in the petition that it was unjust for a person to be subject to a greater penalty for some drug offenses than would be applied for multiple homicide. He concluded that the punishment for drug offenses was “unusual” under the Arkansas Constitution. He requested a declaratory judgment that the sentence was in violation of the State constitution. He further requested a writ of mandamus. Relief was denied, and the record has been lodged here on appeal. Appellant now seeks appointment of counsel and an extension of time to file the appellant’s brief. The state has filed a motion to dismiss the appeal.

The appellee’s motion to dismiss the appeal is granted. It is clear that the appellant was not entitled to a declaratory judgment or writ of mandamus in this case. See Fox v. State, 309 Ark. 619, 832 S.W.2d 244 (1992); Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991).

Appellant did not contend that his sentences exceeded the statutory maximum allowed by law. He argued only that he was entitled to a declaratory judgment and writ of mandamus because the sentences were out of proportion for those which could be imposed for murder. Allegations which challenge the constitutionality of a circuit court judgment should be raised at trial and subsequently on direct appeal, not in a petition for post-conviction relief. A petition for post-conviction relief attacking a judgment, regardless of the label placed on it by the petitioner, is considered pursuant to our post-conviction rule, Criminal Procedure Rule 37. See Williams v. State, 291 Ark. 255, 724 S.W.2d 158 (1987). Rule 37 does not provide a means to challenge the constitutionality of a judgment where the issue could have been raised in the trial court. See Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). Moreover, the rule requires that petitions for post-conviction relief must be filed in those cases where the petitioner was convicted, after January 1, 1991, within sixty days of the date the mandate was issued upon affirmance. In the Matter of the Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458 (1990). The mandate in petitioner’s case was issued January 10, 1992, but his petition was not filed until August 21, 1992, more than seven months later. The petition was therefore untimely. The timeliness of a post-conviction petition is jurisdictional and the trial court cannot grant post-conviction relief on an untimely petition. See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

Motion for appointment of counsel and motion for extension of time to file appellant’s brief denied; appellee’s motion to dismiss appeal granted.

       The sentence imposed for possession of drug paraphernalia, which is a Class C felony, Ark. Code Ann. § 5-64-403(c)(l) (1987), where a defendant has more than one but less than four prior felony convictions is 20 years. Ark. Code Ann. § 5-4-501(a) (4) (1987). A sentence of 60 years was imposed on petitioner, but, as stated, he did not challenge the sentence in the petition for post-conviction relief.


author: Jack Holt, Jr., Justice.

text:
    CARROLL ELECTRIC COOPERATIVE CORPORATION v. Joe BENSON and Amelia Benson
    92-1122
    848 S.W.2d 413
    Supreme Court of Arkansas
    Opinion delivered March 1, 1993

      Everett, Stills & Gunderson, by: John C. Everett, for appellant.

      James N. McCord, for appellees.
   Jack Holt, Jr., Justice.

The issue presented is whether the appellant, Carroll Electric Cooperative Corporation (hereafter “Carroll Electric”), had a right pursuant to a 1962 easement to extend certain existing power lines across the western portion of appellees’, Joe and Amelia Benson (hereafter “the Bensons”), property or was required to acquire a new easement. We hold that the trial court erred in determining that Carroll Electric could not extend this power line under a 1962 easement but remand to the trial court for its determination of the reasonableness of the route chosen for the line.

On May 12,1962, the appellees’ predecessor in title, Arrow Land Company, Inc., granted Carroll Electric the following described right-of-way easement:

KNOW ALL MEN BY THESE PRESENTS, that we Arrow Land Company, Inc. . . .do hereby grant unto the Carroll Electric Cooperative Corporation. . .the right to enter upon the lands of the undersigned. . .and to place, construct, operate, repair, maintain, convert to higher or lower voltage, to extend lines for other service upon the above lands and to extend lines from services on this land to and for service to other property and services beyond the above described lands, and overhead or underground electric transmission or distribution line or cable, such overhead lines or underground cable to serve as distribution or transmission line or both and to excavate, to cut, and trim trees and shrubbery to the extent necessary to lay cable and to keep clean said electric lines or cable, and to cut down from time to time all dead, weak or dangerous trees that are tall enough to strike wires in falling.
The undersigned agree that all poles, wires, and other facilities, including any main service entrance equipment, installed on the above described lands at the Cooperative’s expense shall remain the property of the Cooperative, removable at the option of the Cooperative upon termination of service to or on said lands.
In granting this easement, it is understood that all pole locations, only a single pole and appurtenances will be used, and that the location of the poles will be such as to form the least possible interference to farm operations, so long as it does not materially increase the cost of construction.

(Emphasis added.)

Three years later, in 1965, this property, Pointe Clear Heights Subdivision, was platted. In 1967, in accordance with this right-of-way easement, Carroll Electric constructed an overhead electric line into the center of the Bensons’ property to serve the residence now owned by the Bensons.

The Bensons filed this lawsuit on June 29,1992 after Carroll Electric entered their land and cut down numerous large trees to clearcut a path for the construction of an overhead electric transmission line on the west side of their property to provide electric power to a residence on property in Pointe Clear Heights Subdivision owned by Mr. Larry Cox. Carroll Electric placed several tall poles within the clearcut path in preparation for stringing the overhead transmission line across the Bensons’ property. Carroll Electric did not confer with the Bensons prior to cutting the path or placing poles nor did it give the Bensons an opportunity to “delimit” (lay out the boundary of) the easement. The Bensons approached the electric company and offered to permit underground wiring but the company refused.

The Bensons filed a complaint in Benton County Chancery Court requesting a preliminary as well as a permanent injunction enjoining Carroll Electric from further constructing overhead transmission lines across their property. The chancery court granted the preliminary injunction. Thereafter, the Bensons amended their complaint to ask for a mandatory injunction ordering Carroll Electric to remove all new poles and new overhead electric lines placed on the clearcut path across their property. Both sides filed motions for summary judgment, and the matter was submitted to the court. After considering the stipulated exhibits and facts, the chancellor granted the Bensons’ countermotion for summary judgment. In reaching this decision, the chancellor made the following findings of fact and conclusions of law:

6. On May 12, 1962 plaintiffs’ predecessor in title, Arrow Land Company, Inc., granted Defendant, Carroll Electric Cooperative Corporation, a “floating” (not described by metes and bounds) right-of-way easement across plaintiffs’ land and adjoining land. The legal description of said right of way easement includes all of the land within Pointe Clear Heights Subdivision, Benton County, Arkansas.
7. The plat of Pointe Clear Heights Subdivision was filed of record in 1965.
8. In 1967, defendant constructed an overhead transmission line across the Benson’s property to provide electric power to the residence on the property. Defendant has constructed other overhead electric lines throughout Pointe Clear Heights Subdivision to provide electric power to approximately 15 other residences in the subdivision. . . .Defendant has utilized said electric lines for many years to provide electric power to said residences.
9. Defendant proposes to construct a new overhead electric line across plaintiffs’ property to provide electric power to a new residence under construction on property owned by Larry Cox, which adjoins Lot 13, Block 7 of the Bensons’ property. The proposed new electric line would be an extension of an existing electric line. Defendant is legally obligated to provide electric service to the Cox property.
10. Employees of defendant recently entered upon the plaintiffs’ property and cut down numerous large trees to clearcut a path across plaintiffs’ lands for construction of the proposed new overhead electric line. The new electric line was partially constructed prior to entry of the Preliminary Injunction in this case. One additional pole would be installed on the Bensons’ property if the line is completed.
11. Defendant has not obtained a new right-of-way grant from plaintiffs authorizing defendant to construct a new electric line across plaintiffs’ property.
12. The “floating” right of way granted to defendant by plaintiffs’ predecessor in title has become fixed. In Bradley v. Arkansas Louisiana Gas Company, 280 Ark. 492, 659 S.W.2d 180 (1983) the Supreme Court held:
. . .Undesignated grants of rights-of-way may be termed “floating rights-of-way” until located and utilized but thereafter such easements become fixed.
. . .After the location is designated and used it cannot thereafter be redesignated at a different location without another grant.
13. A right-of-way grant is to be construed against the party preparing it, and in construing the grant the objective is to ascertain the intent of the parties.
14. The Court is not persuaded that the grantor of the 1962 “floating” easement intended that power lines could be erected 30 years later by the grantee independent of input by the successors to the grantor and without consideration as to the reasonable use and enjoyment of the property by the successors to the grantor.
15. Defendant cannot rely upon the 1962 easement and should be required to obtain a new easement.
IT IS, THEREFORE, CONSIDERED ORDERED, ADJUDGED AND DECREED that defendant Carroll Electric Cooperative Corporation is hereby permanently enjoined from constructing a new electric line across plaintiffs’ property and defendant is hereby ordered to remove all new poles and electric lines which have been placed on plaintiffs’ property and to remove the debris and tree stumps on plaintiffs’ property within the path cut across said property by defendant.

The chancellor’s reliance upon Bradley is misplaced. In Bradley the issue before this court was whether Arkla had the right under a 1960 easement to relocate a pipeline across the property owners’ land without obtaining a new right-of-way. The new pipeline location was about one hundred feet south of the existing right-of-way. The language of the easement agreement gave the grantor the “right to lay, maintain alter, repair, operate and remove pipe lines for the transportation of oil and gas.” Bradley, 280 Ark. at 495. There, as here, the right-of-way was undesignated. Yet, in holding that a new right-of-way was required, this court held that when the grantee selects a right-of-way not specifically described in the grant, the right-of-way becomes fixed and the “grantee has no right to go upon other parts of the grantor’s land without a new grant.” Bradley, 280 Ark. at 496.

However, Bradley is not comparable to the facts at hand. In Bradley the utility was relocating the right-of-way while here, Carroll Electric is extending a powerline under the authority of the existing easement. This line extension is clearly permitted by the 1962 easement agreement which states that Carroll Electric may “extend lines for other service upon the above lands and to extend lines from services on this land to and for service to other property.'1'1 (Emphasis added.)

While it is true that a right-of-way grant is to be construed against the party preparing it, the language in the 1962 easement plainly provides that Carroll Electric may extend the lines as needed to provide service to other property, and that is just what they have done here. While the right-of-way of the lines to the Bensons’ residence may have become fixed, the 1962 easement is still “floating” as to the extension of a line situated near the west side of their property. In sum, Carroll Electric was within its rights to extend this electric line across the west side of the Bensons’ property to service the Cox property.

Although Carroll Electric is entitled to extend its power lines pursuant to the existing 1962 easement, this right-of-way easement entitles both the grantee and the grantor to a convenient, reasonable, and accessible way. Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S.W. 645 (1924). The location of the undefined right-of-way must be reasonable to both the dominant and servient estates, considering the condition of the place, the purposes for which it was intended, and the acts of the grantee. Id. Further, the owner of the servient estate has the right to delimit the easement. Id. We have consistently applied the law as stated in Fulcher. See Bradley v. Arkansas Louisiana Gas Co., 280 Ark. 492, 659 S.W.2d 180 (1983); Arkansas Valley Elec. Coop. Corp. v. Brinks, 240 Ark. 381, 400 S.W.2d 278 (1966); Drainage Dist. No. 16 v. Holly, 213 Ark. 889, 214 S.W.2d 224 (1948).

A review of the abstract reveals that the parties attempted to stipulate as to the reasonableness of the exact route but ultimately agreed with each other and with the court that this issue should be reserved depending upon the trial court’s decision regarding the status of the easement. As the trial court made no further findings in this regard, we remand this issue to the trial court as well as for further proceedings consistent with this opinion.

Reversed and remanded.