author: Darrell Hickman, Justice.

text:
    Zakee Kaleem ABDULLAH, a/k/a Robert Earl White v. STATE of Arkansas
    CR 87-139
    744 S.W.2d 727
    Supreme Court of Arkansas
    Opinion delivered February 22, 1988
    [Rehearing deneid March 14, 1988.]

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

The appellant, Zakee Kaleem Abdullah, a/k/a Robert Earl White, appeals from an order of the trial court denying a motion to set aside his 1982 convictions. We denied the appellant relief under Rule 37 in 1984. Abdullah v. State, 281 Ark. 239, 663 S.W.2d 166 (1984). The appellant is merely attempting to avoid the rule which prohibits a second Rule 37 petition. Ruiz v. State, 280 Ark. 190, 655 S.W.2d 441 (1983). Furthermore, the appellant failed to abstract the record of the hearing which was held on this petition. The fact that he represents himself does not excuse him from complying with the rules of the court. Bryant v. Lockhart, 288 Ark. 302, 705 S.W.2d 9 (1986); Weston v. State, 265 Ark. 58, 576 S.W.2d 705 (1979).

Affirmed.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Phil PHILLIPS v. ELWOOD FREEMEN COMPANY, INC.
    87-207
    745 S.W.2d 127
    Supreme Court of Arkansas
    Opinion delivered February 22, 1988

      Ponder & Jarboe, by: Harry L. Ponder, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   John I. Purtle, Justice.

The appellant filed a complaint in the Circuit Court of Lawrence County, Arkansas, wherein he claimed that the appellee negligently caused damage to his farmlands. The complaint was subsequently amended to plead the doctrine of res ipsa loquitur. At the conclusion of the appellant’s case the trial court directed a verdict in favor of the appellee on the grounds that there was no evidence of negligence on the part of the appellee and the doctrine of res ipsa loquitur did not apply. The only issue in this appeal is whether, under the facts as developed, the case should have been submitted to the jury under the doctrine of res ipsa loquitur. We hold that the trial court correctly directed the verdict because the doctrine of res ipsa loquitur does not apply in this case.

Between 1952 and 1960 the appellant constructed a dirt levee on his land in Lawrence County to protect it from overflow by the Black River. After the levee was constructed he sodded the banks and constructed a gravel road along the top of the levee. In the spring of 1980, with appellant’s consent, the appellee installed an underground telephone line along the riverside shoulder of the levee, except for a short distance where the wire was buried on the field shoulder of the levee. The appellee used a maxi-sneaker which sliced the dirt to a depth of about twelve inches and fed the wire cable into the bottom of the slit. The dirt fell back into place as the machine passed through it. The sod soon healed and for the next three growing seasons there were no traces of the wire or its installation except when it was repaired.

In November of 1982 the Black River reached flood proportions at a higher level than any flood in the memory of the residents in the area. The appellant’s levee was completely inundated. The only appreciable erosion to the levee was the washout on the field side of the levee where the cable was buried. The telephone wire which had been buried on the field side of the levy was exposed as a result of the washout.

The appellant had constructed a culvert under the levee at the lowest elevation on his farmland for the purpose of draining water from his fields into Black River. The culvert had a trap door on the river end which prevented water from entering from the river. The washout on the field side of the levee occurred near where the culvert went under the levee. There is no evidence that the culvert contributed to the overflow. However, appellant alleges that the dirt and debris from the eroding levee entered the culvert and clogged it, thereby preventing the floodwaters from flowing into the river. The clogged culvert thus caused the floodwaters to remain on the wheat crop and drown it. Besides the expenses incurred in repairing the levee, the appellant also alleged his land near the washout was rendered less productive as a result of the overflow.

In order for the doctrine of res ipsa loquitur to apply a plaintiff must show that the injury was caused by an instrumentality under the control of the defendant, that the accident ordinarily would not have happened in the absence of the defendant’s negligence, and there was no evidence of other causes for the occurrence. Statler v. Coca Cola Bottling Company of Arkansas, 282 Ark. 443, 669 S.W.2d 460 (1984), and Coca Cola Bottling Company v. Mattice, 219 Ark. 428, 243 S.W.2d 15 (1951). In Dollins v. Hartford Accident & Indemnity Company, 252 Ark. 13, 477 S.W.2d 179 (1972), this court stated, “there must be an inference that someone must have been negligent before res ipsa loquitur can be applied.” The doctrine, when applicable, allows the jury to infer negligence from the plaintiffs evidence of circumstances surrounding the occurrence.

In the present case there was no evidence that an instrument under the control of the appellee was the only possible cause of his injuries. Certainly, the unprecedented flood waters of the Black River overflowing the levee could have caused the damages. Neither did the appellant prove that the damage to his levee ordinarily would not have happened unless someone was negligent. A levee may wash out in a flood in the absence of negligence or fault on the part of anyone. Furthermore, it would not have been difficult to obtain testimony if the cable had been installed in a negligent manner.

Since there was no showing that the washout was caused by the action of the appellee, or that it would not have occurred if the appellee had used proper care, or that there was no other cause of the damage, the trial judge correctly denied the application of the doctrine of res ipsa loquitur.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Lee Duane JACOBS v. STATE of Arkansas
    CR 87-88
    744 S.W.2d 728
    Supreme Court of Arkansas
    Opinion delivered February 22, 1988

      Naif Samuel Khoury, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was charged and convicted of the first degree murders of Noah Moss and Anna Marie Padilla. He was sentenced to two consecutive life sentences. We reverse and remand for new trials on both charges.

Both victims were killed on June 5, 1986, in Crawford County. Appellant was arrested on June 7 and, on July 2, his trial date was set for August 21, 1986. On July 18 the appellant’s attorney filed a motion alleging that appellant was mentally incompetent and was unable to assist in his defense. See Ark. Code Ann. § 5-2-305 (1987) [Ark. Stat. Ann. § 41-605 (Repl. 1977)]. On July 22, the trial court ordered a local physician to examine the appellant in order to decide whether there were reasonable grounds to believe that appellant was incapable of assisting in his defense. On July 29, after a 20 minute examination, the local physician reported “I find no reason to believe that he is incompetent.” On August 6, the appellant filed another motion for a psychiatric examination. The State objected, but the court ordered that he be examined by a local psychiatrist. On August 12, the psychiatrist conducted a two hour interview with the appellant, and on August 15 reported to the court: “Because of the impairment in his ability to cooperate with his attorney, I feel his competency to stand trial is highly questionable.”

On August 18, three days before the trial was scheduled to start, the court held an omnibus hearing. Appellant’s attorney orally moved for a full examination of the appellant. The trial court held that there was not enough evidence to send him to the State Hospital. The trial commenced three days later.

The appellant contends that the trial court denied him due process in refusing to order a full examination and report. The argument has merit.

The conviction of an accused person while he is legally incompetent violates due process. Pate v. Robinson, 383 U.S. 375 (1966). See also Ark. Code Ann. § 5-2-302 (1987) [Ark. Stat. Ann. § 41-603 (Repl. 1977)]. In order to be competent to stand trial a defendant must have the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense. Drope v. Missouri, 420 U.S. 162 (1975); Speedy v. Wyrick, 702 F.2d 723 (8th Cir. 1983). A trial court should sua sponte order a competency hearing when there is a reasonable doubt about the defendant’s competency to stand trial. Campbell v. Lockhart, 789 F.2d 644 (8th Cir. 1986).

As the Eighth Circuit Court of Appeals explained in Speedy, 702 F.2d at 725 (citations omitted) (emphasis added):

This court has recently stated the test for determining whether a trial court should sua sponte order a competency hearing:
Under the rule of Pate v. Robinson ... a due process evidentiary hearing is constitutionally compelled at any time that there is “substantial evidence” that the defendant may be mentally incompetent to stand trial. “Substantial evidence” is a term of art. “Evidence” encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is “substantial” if it raises a reasonable doubt about the defendant’s competency to stand trial. Once there is such evidence from any source, there is a doubt that cannot be dispelled by resort to conflicting evidence. The function of the trial court in applying Pate’s substantial evidence test is not to determine the ultimate issue: Is the defendant competent to stand trial? Its sole function is to decide whether there is any evidence which, assuming its truth, raises a reasonable doubt about the defendant’s competency. At any time that such evidence appears, the trial court sua sponte must order an evidentiary hearing on the competency issue.
Although the Supreme Court has not prescribed exact standards as to the quantum or nature of the evidence necessary to require a competency hearing, the Court has indicated that consideration of evidence relating to “a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial” is appropriate. Drope v. Missouri, 420 U.S. at 180,

The psychiatrist’s two hour interview resulted in a report stating that appellant’s “competency to stand trial is highly questionable.” That report raised a reasonable doubt about appellant’s competency to stand trial. At that time, the trial court should have ordered a full examination and report pursuant to Ark. Code Ann. § 5-2-305(c) (1987) [Ark. Stat. Ann. § 41-605(3) (Repl. 1977)], and, if warranted by the report, conducted a determination of fitness to proceed. See Ark. Code Ann. § 5-2-309 (1987) [Ark. Stat. Ann. § 41-606 (Repl. 1977)]. The failure to do so constitutes reversible error.

Appellant argues that we should reverse and dismiss because, aside from his confession, “there was no other proof’ as required by Ark. Code Ann. § 16-89-111(d) (1987) [Ark. Stat. Ann. § 43-2115 (Repl. 1977)].

Ark. Code Ann. § 16-89-111(d) [Ark. Stat. Ann. § 43-2115] provides:

A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.

In the instant case, the other proof that the murders were committed was the discovery of the corpses which showed that both victims had been shot to death. See Morgan v. State, 286 Ark. 264, 691 S.W.2d 164 (1985). Since there was corroborating evidence the murders were committed, we reverse and remand rather than reverse and dismiss.

Next, we consider the two points likely to arise again upon retrial. In the first of these points, the appellant argues that the trial court erred in allowing State’s exhibits 15, 16, and 17 into evidence.

These exhibits are color photographs of the victims taken at the time the bodies were found. The medical examiner stated the pictures would aid him in demonstrating how he established the times of the deaths because the pictures showed lividity and color at a known time. Even though the pictures are inflammatory, they assisted the jury in understanding the testimony, and were properly admissible. Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987).

Appellant also argues that the trial judge should have given a non-AMCI instruction concerning a prior consistent statement. The trial court ruled correctly. Under A.R.E. Rule 104 it is clear that the judge, not the jury, makes the determination of admissibility of evidence. Once the judge makes that determination, it is a matter of argument of counsel as to the weight to be given that evidence. See Comment, AMI Criminal 200 (1982).

Reversed and remanded.


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Charles Berry GARRETT, et ux v. STATE of Arkansas
    87-349
    744 S.W.2d 731
    Supreme Court of Arkansas
    Opinion delivered February 22, 1988

      Lynn H. Ball, and Dale Varner, for appellants.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

In 1981 Howard Dennis Garrett was charged with first degree battery of Diane Burr, a class B felony. His father, Charles Garrett, posted a $50,000 appearance bond to obtain Dennis Garrett’s release pending trial. The bond was secured by a mortgage from Charles and Ruth Garrett on 214 acres of land in Benton County.

In 1982 Dennis Garrett was tried, convicted and sentenced to ten years in the Department of Correction. Garrett remained on the same bond pending appeal. The judgment of conviction was reversed and the case remanded for a new trial. Garrett was again convicted, sentenced to ten years and fined $10,000. Garrett appealed a second time and remained free on the same bond. This time the judgment was affirmed and the mandate of this court ordered Garrett to surrender to the Sheriff of Benton County. Garrett failed to surrender and has not been located.

A bond forfeiture was sought and Charles and Ruth Garrett were ordered by the circuit court to show cause why the bond should not be forfeited. Following a hearing, an order of forfeiture was entered awarding judgment to Benton County against Charles and Ruth Garrett in the amount of $50,000 and ordering the sale of the property in satisfaction of the judgment. The Garretts have appealed.

Two points for reversal are argued on appeal. First, under the language of the judgment the bond expired upon the happening of one of two conditions: 1) The filing of an appeal or 2) the expiration of thirty days. Second, the bond was exonerated as a matter of law when Garrett appeared for trial following the reversal of his first conviction. We find no merit in either contention and, therefore, the order appealed from is affirmed.

The Garretts argue the bond is no longer in effect because the judgment itself recited that it was to expire upon the filing of notice of appeal or upon the expiration of thirty days. They point to this language, which appears in both judgments: “The defendant is continued on present bond pending appeal. Notice of appeal must be filed within thirty days.” They maintain that under that wording the bond was to expire when notice of appeal was filed, or at the end of thirty days. We reject that interpretation. The sentence involving notice of appeal has no bearing on the appeal bond, it was simply a gratuitous reminder that the defendant has thirty days in which to appeal. The remaining sentence, that the present bond will continue in effect “pending appeal,” is familiar usage and identical language appears in A.R.Cr.P. Rule 36.5, 36.6 and 36.7. It means the bond will remain in effect until the appeal is completed. Under the Garretts’ interpretation the language must be read as meaning until the appeal commences. That would lead to absurd results.

The Garretts cite us to Perry v. State, 275 Ark. 170, 628 S.W.2d 304 (1982) and Liberty Bonding Company v. State, 270 Ark. 434, 604 S.W.2d 956 (1980). Neither decision governs this case. In Perry, the defendant was free prior to trial on a $10,000 bond set by a municipal judge. After conviction by a jury of first degree murder and second degree battery with sentences of forty years and six years and a $10,000 fine, the circuit court increased the bond on appeal to $50,000. Perry sought a writ of certiorari from this court on the premise that the trial court was without power to increase the bond on appeal without written findings. We rejected the argument, pointing out the distinction between a pretrial release bond under A.R.Cr.P. Rule 9.2 and an appeal bond under A.R.Cr.P. Rules 36.5, 36.6, and 36.7. We said that even if a pretrial release bond continues pending appeal that does not make it an appeal bond as governed by A.R.Cr.P. Rules 36.5, 36.6 and 36.7. Under A.R.Cr.P. Rule 36, after conviction, the trial court has the power to deny a bond entirely, depending on its determination of the risks involved in the defendant’s remaining free during the appeal process. A.R.Cr.P. Rule 36.5. Here, the trial court left the pretrial bond in effect pending appeal though it was within its discretion to increase it.

The Liberty Bonding case represents an altogether different situation from the case at bar. Liberty had posted a $20,000 appeal bond for Larry Cureton in case No. CR 75-110. Later Liberty posted a $15,000 appearance bond on different charges, case No. CR 79-283. The defendant entered into a plea agreement for a guilty plea on both charges. He appeared for sentencing on CR 79-283 on August 24 and was sentenced to three nine year sentences. As he was scheduled to be sentenced some three weeks later in case CR 75-110, the trial court agreed for him to remain free until sentencing on the remaining charge upon the representation of defense counsel that Liberty had agreed to that arrangement. The defendant failed to appear for sentencing and both bonds were forfeited by the trial court. On appeal, we held the bond in CR 75-110 was properly forfeited, but not in CR 79-283, as there was no proof that Liberty had agreed for Cureton to remain free after sentencing nor any proof that it had authorized defense counsel to speak for it. We find no fault with that decision on those facts. The holding is that when sentence is imposed upon a plea of guilty, the defendant cannot remain at liberty without the agreement of the bondsman.

The Garretts argue that their permission was never given to continue the bond on appeal and they never realized they could be putting their property at risk for an indefinite period under the bond. We note, however, that the order forfeiting the bond contains an express finding that after both convictions the defendant was “continued on the same bond in the presence and with the consent of the bondsmen, Charles Berry Garrett and Ruth Garrett, pending his appeal.” The Garretts do not challenge that finding except to argue that Garrett’s limited education and experience in such matters should not permit his silence to operate to his detriment. However, by withholding objection the Garretts permitted their son to remain at liberty pending appeal and they may not repudiate their action after he has defaulted in his commitment to appear.

Secondly, the Garretts argue that the bond should have been exonerated as a matter of law when Dennis Garrett appeared for trial after the first conviction was reversed on appeal. They cite A.R.Cr.P. Rule 36.7(a). The rule provides that when a defendant is released pending appeal, a condition of such release shall be that if the case is affirmed, or reversed but remanded for a new trial, the defendant will surrender to the sheriff. But the rule does not say that when either of those eventualities occurs the original bond must be discharged and a new bond substituted. We are aware of no such requirement. To the contrary, in Zoller v. State, 284 Ark. 118, 680 S.W.2d 87 (1984), we recognized that under A.R.Cr.P. Rule 9.2(e) a bond, once approved, remains in effect throughout the appeal, including appearances on remand. Nothing in Rule 36.7 suggests that a bond automatically terminates on remand. Moreover, as we have noted, the finding of the trial judge, who presided at every stage of these proceedings, reciting that the Garretts were present and consented to the continuation of this bond following both trials removes any force from the argument.

Language in Zoller to the effect that a bail bondsman executes a bail bond “with knowledge of and pursuant to the statutes and rules regulating bail bonds,” prompts the Garretts to argue that a distinction should be drawn between private individuals and professional bondsmen. They cite no authority for that position and we cannot say the argument is convincing on its face. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I agree with that part of the majority opinion which states: “[A] bond, once approved, remains in effect throughout the appeal, including appearances on remand.” Arkansas Rules of Criminal Procedure Rule 9.2(e) states: “An appearance bond and any security deposit required as a condition of release pursuant to subsection (b) of this rule shall serve to guarantee all subsequent appearances of a defendant on the same charge or on other charges arising out of the same conduct before any court, including appearances relating to appeals and upon remand.” There is a superficial conflict between this rule and A.R.Cr.P. Rule 36.4 which states: “At the time sentence is pronounced and judgment entered, the trial judge must advise the defendant of his right to appeal, the period of time prescribed for perfecting the appeal, and either fix or deny bond.” I believe that the only plausible interpretation is that the latter rule applies only to cases where bond has not yet been fixed or where the bond, by its terms, expires when the accused appears for trial.

The majority attempts to reconcile our cases relating to appeal bonds. They cannot be reconciled. Our holdings are in conflict because the rules are superficially in conflict.

The part of Rule 36.4 quoted above does not conflict with Rule 9.2(e), if this language in Rule 36.4 is interpreted to apply only when a bond has not previously been set. Clearly Rule 9.2(e) intends that one bond continue all the way through the appellate process, including remand. I believe that to be the holding in the present case. For that reason I concur and trust we will follow this decision in the future.

I would also like to point out that the bond forfeiture is not automatically in the amount of $50,000.00. The amount of the bond forfeiture to which the county is entitled is the cost of returning the appellant to the jurisdiction of the county.

       The order left open the possibility of a remittitur of any difference in the amount of the bond versus the expenses incurred in bringing Garrett to custody.


author: Steele Hays, Justice.

text:
    Joe Dale HEAD v. CADDO HILLS SCHOOL DISTRICT
    87-301
    745 S.W.2d 595
    Supreme Court of Arkansas
    Opinion delivered February 22, 1988

      Mitchell and Roachell, by: Clayton R. Blackstock, for appellant.

      Charles E. Black, for appellee.
   Steele Hays, Justice.

Joe Dale Head filed suit against the Caddo Hills School District alleging that the district terminated his contract to teach for reasons that were arbitrary, capricious and discriminatory in violation of the Arkansas Teacher Fair Dismissal Act. The district moved to dismiss the complaint on grounds of res judicata and the trial court granted the motion. Head has appealed. We reverse and remand.

Joe Dale Head was a probationary teacher with the Caddo Hills School District for the school year 1979-80. In July of that year Head was notified that his contract for 1980-81 was not being renewed. Head requested a hearing before the board and the dismissal was upheld by a vote of five to none, one member abstaining.

Head appealed to the circuit court and when the circuit court upheld the action of the district as being a nonrenewal of a probationary teacher, rather than a termination, Head appealed to this court. See Head v. Caddo Hills School District, 277 Ark. 482, 644 S.W.2d 246 (1982).

While we affirmed the circuit court’s dismissal of Head’s appeal, we pointed out that the circuit court was clearly wrong in holding that Head’s contract was not terminated. We reached the same result, however, finding that no right of appeal is given to probationary teachers under the Teacher Fair Dismissal Act, a jurisdictional requirement which the parties had not argued, but which we are obliged to raise on our own. First Pyramid Life Insurance Company v. Reed, 247 Ark. 1003, 449 S.W.2d 178 (1970).

Following the issuance of the mandate in Head v. Caddo Hills School District, supra, Head filed in circuit court the suit now before us on appeal, which, as noted above, was dismissed on grounds of res judicata. That was error.

“It is well settled that where jurisdiction is lacking a decree to that extent is void and therefore not res judicata to a subsequent action in a court of competent jurisdiction.” Weathers v. City of Springdale, 239 Ark. 535, 390 S.W.2d 125 (1965). See also Hendricks v. Henson, 192 Ark. 544, 92 S.W.2d 867 (1936); Kyle v. Pate, 222 Ark. 4, 257 S.W.2d 34 (1953); Restatement (Second) of Judgments, § 20(l)(a) (1980); 46 Am. Jur. 2d Judgments § 446 (1969).

The circuit court had no jurisdiction to hear an appeal by Joe Dale Head from the school board and res judicata does not attach by reason of that attempt. We noted as much in the dictum of Head v. Caddo Hills School District, when we said, “a probationary teacher’s remedy for an illegal termination is a suit for breach of contract.” Head, 277 Ark. at 486. That cause of action has never been previously asserted and is not now precluded because of a futile attempt to appeal to a court which had no jurisdiction to entertain the appeal. “That which has not been tried cannot have been adjudicated.” Shaver v. Sharp County, 62 Ark. 76, 34 S.W. 261 (1896).

Reversed and remanded.

       Ark. Code Ann. § 6-17-1510 (1987).


author: David Newbern, Justice. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    William E. GRAN v. David L. HALE, Judge, Municipal Court of Pulaski County, Arkansas
    87-17
    745 S.W.2d 129
    Supreme Court of Arkansas
    Opinion delivered February 22, 1988

      William E. Gran, pro se.

      Ivester, Henry, Skinner & Camp, by: Robert Keller Jackson, for appellee.
   David Newbern, Justice.

William E. Gran appeals pro se from the circuit court denial of his “Petition for Redress of Grievances.” He seeks a writ of prohibition to prevent the enforcement of certain conviction judgments rendered by the Pulaski County Municipal Court, or a writ of mandamus to direct a new trial, or a writ of certiorari to certify the record for appeal.

On March 20, 1984, Mr. Gran was convicted of driving without an operator’s license in violation of Ark. Code Ann. § 27-16-602 (1987) and fined $200. On January 15, 1986, he was convicted a second time of the same offense and fined $344.75 and was also convicted of operating a vehicle without a current vehicle license in violation of Ark. Code Ann. § 27-14-1004 (1987) and fined $64.75. Mr. Gran has not appealed any of these convictions. Rather, within the time for filing a notice of appeal from each conviction, respectively, he filed in the municipal court “notice of demand to reverse determination of guilty without a trial” and “motion for relief by rehearing of all motions.”

On April 2, 1986, a special municipal judge denied the requests for relief and ordered Mr. Gran to pay all three fines by April 29, 1986. On April 30, 1986, Mr. Gran petitioned the circuit court basically seeking the relief for which he is asking this court. The circuit judge denied relief because no timely appeal had been filed. We affirm the circuit court’s decision.

1. Extraordinary writs, generally

Mr. Gran seeks prohibition, mandamus, and certiorari. He claims judgments were rendered against him in violation of his right to due process, his right to confrontation, and his right to have a qualified judge on the bench. He claims no trial was held, that the special judge had not taken the oath of office, and that he was denied use of the Arkansas Rules of Criminal Procedure. He also contends that a pro se litigant should not be held to the same standards as an attorney.

Mr. Gran had a right to a de novo review of the convictions in the circuit court. At the time his appeal right accrued, it was codified at Ark. Stat. Ann. §§ 22-707 (Repl. 1962) and 22-763.7 (Supp. 1985), and it is presently codified at Ark. Code Ann. § 16-17-703 (Supp. 1987). Had he appealed the convictions, the complaints he now raises could have been reviewed. Neither mandamus, certiorari, nor prohibition may be used as a substitute for appeal. Burney v. Hargraves, 264 Ark. 680, 573 S.W.2d 912 (1978). We do not assist litigants, pro se or otherwise, by combing the record and rewriting their pleadings to make them into ones which can be recognized or granted. Weston v. State, 265 Ark. 58, 576 S.W.2d 705 (1979). The circuit court was correct in refusing the writs.

2. Certiorari, in particular

Mr. Gran claims that certiorari should have been granted in the circuit court, and that it should be granted by us, because the fines he was assessed were excessive. He claims that the court assessed his fines for driving without an operator’s license pursuant to Ark. Code Ann. § 27-16-301 (1987) which authorized fines of up to $500. He contends § 27-16-301 was superseded by Ark. Code Ann. § 27-50-305 (1987) which provides for a fine of not more than $100 for the first conviction, and not more than $200 for the second conviction which occurs within one year of the first conviction. His contention is that the fines were excessive and that we can reach this point because certiorari may be granted when it appears on the face of the record that the court has acted in excess of its jurisdiction.

In State v. Nelson, Berry Petroleum Co., 246 Ark. 210, 438 S.W.2d 33 (1969), Justice Fogleman stated the offices of certiorari as follows:

Certiorari lies to correct proceedings erroneous upon the face of the record when there is no other adequate remedy. It is available in the exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. Certiorari lies where there is a want of jurisdiction or an act in excess of jurisdiction which is apparent on the face of the record. It is not available to look beyond the face of the record to ascertain the actual merits of a controversy, to control discretion, to review a finding upon facts or review the exercise of a court’s discretionary authority. [246 Ark. at 216-217, 438 S.W.2d at 38, citations omitted]

The writ is not one of right, but is to be granted or denied within the discretion of the court from which it is sought. Ricci v. Poole, 253 Ark. 324, 485 S.W.2d 728 (1972); Flournoy v. Payne, 28 Ark. 87 (1872). See also Axley v. Hammock, 185 Ark. 939, 50 S.W.2d 608 (1932). Certiorari may be granted where the court lacks the power to act as it has purported to do. For example, if a chancellor appoints a master in such a manner that the master is to supplant the court, certiorari may issue to prevent the creation of a bogus tribunal. State v. Nelson, Berry Petroleum Co., supra. Another example is the issuance by a circuit court of an order attempting to control the proceedings before a state commission over which it has only the power of review. Bridges v. Arkansas Motor Coaches, Ltd., Inc., 256 Ark. 1054, 511 S.W.2d 651 (1974). The writ may also be used where a court has entered an order which is “void” due, for example, to lack of notice. City of Fayetteville v. Baker, 176 Ark. 1030, 5 S.W.2d 302 (1928).

The question here is whether the municipal court acted in excess of its jurisdiction in entering fines based upon an arguably superseded statute. If so, it was within the discretion of the circuit court to enter a writ of certiorari. Unlike the cases in which we have approved the writ to prevent creation of a bogus tribunal or an act lacking in jurisdiction of the person or subject matter before the court, this case is not one where the record demonstrates an act in excess of the court’s jurisdiction. No argument is made that the court lacked jurisdiction of the defendant or the prosecution for the crime alleged.

In Stroud v. Conine, 114 Ark. 304, 169 S.W. 959 (1914), a justice of the peace entered a judgment in a contract action for $375 despite the constitutional restriction allowing the municipal court to take jurisdiction of such claims up to $300. We approved certiorari because the judgment was due to lack of jurisdiction in the justice of the peace. In contrast, here, the allegation is not that there is a statute or constitutional provision limiting the jurisdiction of the municipal court to any particular amount for the fines in question. Rather, there may be a statute which sets a maximum fine which has been exceeded. The question is one of error rather than jurisdiction.

Certiorari will not be used for the correction of mere error where the right of appeal has been lost due to the fault of the petitioner. Ricci v. Poole, supra; North Little Rock Transportation Co. v. Sangster, 210 Ark. 294, 195 S.W.2d 549 (1946); Flournoy v. Payne, supra. Mr. Gran has given us no reason to hold his failure to file a timely appeal of his municipal court convictions with the circuit court was the fault of anyone other than himself.

Affirmed.

Hickman and Purtle, JJ., dissent.

Darrell Hickman, Justice,

dissenting. The Arkansas Constitution makes no provision for a “county municipal court.” Since the Pulaski County Municipal Court is not a legal court its acts are void. See Howell v. Howell, 213 Ark. 298, 208 S.W.2d 22 (1948); Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981) (Hickman, J., dissenting).

John I. Purtle, Justice,

dissenting. I would grant prohibition because the appellant was found guilty without a trial on the first count and was tried in the other two cases before a “special judge” who was acting without authority because he had failed to take the oath of office. Since all three judgments are void the appellant was not required to appeal and can collaterally attack such judgments at any time.

The Fifth Amendment to the United States Constitution provides that no person shall be deprived of life, liberty, or property without due process of law. The Sixth Amendment requires an impartial, speedy, and public trial and insures that the accused shall be confronted with the witness against him. The Fourteenth Amendment to the United States Constitution makes the Fifth and Sixth Amendments applicable to the states. Both U.S. Const, art. 6, § 3 and Ark. Const, art. 19, § 20 demand that all judicial officers take an oath before beginning their duties. It is undisputed in the present case that the first judge did not give the appellant the benefit of a trial and that the “special judge” did not take the oath of office. The judgments consequently are void.

Since the judgments are void we are bound by the decision of this court in Swagger v. State, 227 Ark. 45, 296 S.W.2d 204 (1956), where we stated: “But where, as here, the judgment is void because of the want of due process of law, it has no force and effect, and can be vacated at any time.”

Having found no constitutional, statutory, or other valid authority permitting a court to convict a person without a trial, or permitting someone other than a judge to decide the case, I believe the appellant is merely claiming his right to due process. No person should be required to prevent enforcement of a void judgment against him.

In the present case the appellant has been forced to defend himself against these void judgments. He should be granted permanent relief in the form of a writ of prohibition to prevent the lower court from enforcing the void judgments or, in the alternative, a writ of mandamus to vacate the void judgments.


author: Tom Glaze, Justice. John I. Purtle, Justice,

text:
    Delores CRAWFORD, Special Administratrix of the Estate of Roger William Fergerson, Deceased v. EMCASCO INSURANCE COMPANY
    87-279
    745 S.W.2d 132
    Supreme Court of Arkansas
    Opinion delivered February 22, 1988

      H. David Blair, for appellant.

      Odell Pollard, P.A., by: Margaret Bunn, for appellee.
   Tom Glaze, Justice.

This is an appeal from the granting of appellee’s motion for summary judgment and denial of appellant’s motion for partial summary judgment in a wrongful death action. On appeal, we have one issue to decide: whether the trial court erred in finding that the appellee’s uninsured motorist policy exclusion for injuries sustained while occupying an owned but not insured vehicle was valid (and not in violation of the minimum coverage required) under Ark. Code Ann. § 23-89-403 (1987). In pressing her point for reversal, the appellant asks us to reexamine and overrule the court’s earlier holding in Holcomb v. Farmers Ins. Exch., 254 Ark. 514, 495 S.W.2d 155 (1973), which was relied upon by the trial court in this cause. We reaffirm this court’s decision in Holcomb and therefore affirm.

Roger Fergerson, appellant’s fifteen-year-old son, was killed when his motorcycle was struck by an uninsured motorist. Appellant had uninsured motorist coverage on her two automobiles, which were insured by the appellee. Appellant, as special administratrix, brought a wrongful death action for the death of her son seeking damages under her uninsured motorist coverage. The decedent was an insured under the terms of his mother’s insurance policy, and it is undisputed that he was killed through the fault of an uninsured motorist. The issue of coverage, however, arises because the motorcycle the appellant’s son was riding, when the fatal accident occurred, was not listed on the insurance policy issued by the appellee.

Appellee’s uninsured motorist coverage contained the following exclusion: “We do not provide Uninsured Motorist Coverage for bodily injury sustained by any person (1) while occupying, or when struck by, any motor vehicle owned by you or any family member which is not insured for this coverage under this policy. . . .” The policy defines uninsured vehicle as a land motor vehicle or trailer of any type. Appellant contends the foregoing exclusion from coverage is void and against public policy under Arkansas’s uninsured motorist statute, Ark. Code Ann. § 23-89-403 (1987). That statute provides:

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

In its earlier decision of Holcomb v. Farmers Ins. Exch., 254 Ark. 514, 495 S.W.2d 155 (1973), this court construed the foregoing uninsured motorist statute, in holding as valid an exclusion similar to the one now before us. Although appellant’s argument here is sound and is one that has been accepted in some other jurisdictions, we find her argument is essentially the same as the one this court rejected in Holcomb. While the court in Holcomb adopted the minority view which validates such exclusion provisions that limit uninsured motorist coverage, that view has since gained acceptance (or remained the rule) in a number of other jurisdictions. See Rodriquez v. Maryland Indem. Ins. Co., 24 Ariz. App. 392, 539 P.2d 196 (1975); Dullenty v. Rocky Mountain Fire and Casualty Co., 111 Idaho 98, 721 P.2d 198 (1986); Safeco Ins. Co. of America v. Hubbard, 578 S.W.2d 49 (Ky. 1979); Herrick v. Liberty Mut. Fire Ins. Co., 202 Neb. 116, 274 N.W.2d 147 (1979); Employers’ Fire Ins. Co. v. Baker, 119 R.I. 734, 383 A.2d 1005 (1978); Hill v. Nationwide Mut. Ins. Co., 535 S.W.2d 327 (Tenn. 1976); Equitable General Ins. Co. v. Williams, 620 S.W.2d 608 (Tex. Civ. App. 1981). This court, in fact, unanimously chose to follow its view expressed in Holcomb by rejecting the specific invitation to overrule it. Lucky v. Equity Mut. Ins. Co., 259 Ark. 846, 537 S.W.2d 160 (1976). The court said:

Appellant suggests that we should overrule our holding in Holcomb v. Farmers Ins. Exchange, 254 Ark. 514, 495 S.W.2d 155 (1973). We find no merit in this contention. The construction there given to the uninsured motorist statute has become as much a part of the statute as the words of the General Assembly, Merchants’ Transfer & Warehouse Co. v. Gates, 180 Ark. 96, 21 S.W.2d 406 (1929). Furthermore, even if we should reconsider our holding in Holcomb, supra, the reconsideration could not be applied retroactively to appellant since it involves a matter of contract, Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W.2d 973 (1952).

In reviewing what has (and what has not) occurred since this court’s holding in Holcomb, we perceive no new or compelling reason to overrule it. To the contrary, this court already has refused to overrule Holcomb on one prior occasion, and the rule in Holcomb has since gained acceptance, or has been reaffirmed, in a number of other jurisdictions. Appellant, in addressing the language set out in Arkansas’s uninsured motorist statute, argues that language provides for personal insurance as opposed to vehicle coverage. We disagree and, instead, read § 23-89-403 to provide automobile liability insurance coverage with respect to the ownership, maintenance, or use of any motor vehicle registered or principally garaged in this state.

In reading § 23-89-403, we discern nothing that would suggest the General Assembly intended to allow an insured to purchase a liability policy, which included uninsured motorist coverage, for one of his vehicles and to extend that coverage to other uninsured vehicles owned by the insured. In a recent decision, the Idaho Supreme Court explored this very point. Dullenty, 111 Idaho 98, 721 P.2d 198 (1986). That court said:

If an insurer is required to insure against a risk of an •undesignated but owned vehicle, or a different and more dangerous vehicle of which it has no knowledge, it is thereby required to insure against risks of which it is unaware, unable to underwrite and unable to charge a premium therefor.

Id. at 106, 721 P.2d at 206.

Although fifteen years has passed since this court’s decision in Holcomb, the General Assembly has not amended § 23-89-403 in an effort to change the result reached in Holcomb. Obviously, if the General Assembly desired to impose the burden on insurance carriers to provide coverage for undesignated risks such as the one present in the instant case, it easily could have done so.

For the several reasons given above, we hold the exclusion provision contained in the appellee’s uninsured motorist coverage is valid, and therefore affirm the trial court’s granting of appellee’s summary judgment and its denial of appellant’s motion for partial summary judgment.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I see no reason why we cannot find policy coverage in this case and at the same time reaffirm our holding in Holcomb v. Farmers Ins. Exch., 254 Ark. 514, 495 S.W.2d 155 (1973). Concededly, the insurance policy here under consideration expressly excluded coverage for uninsured motorist protection with respect to vehicles that were not covered under the policy. Nevertheless, the exclusion was ineffective because it does not comply with the law. Travelers Insurance Co. v. National Farmers Union, 252 Ark. 624, 480 S.W.2d 585 (1972).

The appropriate part of Ark. Code Ann. § 23-89-403 (1987) states:

No automobile liability insurance, covering liability arising out of the ownership ... or use of any motor vehicle shall be delivered . . . unless coverage is provided therein or supplemental thereto ... for the protection of persons insured thereunder who are legally entitled to recover from owners or operators of uninsured motor vehicles .... [Emphasis added.]

The statute mandates that coverage for uninsured motorist protection be included in all policies, or by supplemental agreement, unless the coverage is expressly rejected in writing. The statute requires coverage to be extended to “persons” insured rather than “vehicles” insured. Therefore, the statutory language creates a personal insurance policy coverage as distinguished from the appellee’s attempt to make the coverage vehicular. This coverage should not be confused with first party coverage, commonly referred to as PIP, as established by Ark. Code Ann. § 23-89-204 (1987).

Neither the policy holder nor the decedent, an insured under the policy, rejected the uninsured motorist coverage in writing. The death was caused by an uninsured motor vehicle. Therefore, coverage was clearly established and was not legally excluded.

In Holcomb the policy owner owned two vehicles. He obtained uninsured motorist coverage on one vehicle and in writing expressly rejected coverage on the other. It was the vehicle which had been expressly rejected from uninsured motorist coverage that Holcomb was riding in at the time of the occurrence. In the present case there has been no express rejection for any vehicle.

The Holcomb opinion was a 4-3 decision that relied upon Owens v. Allied Mut. Ins. Co., 487 P.2d 402 (Ariz. 1971); Shipley v. American Standard Ins. Co., 158 N.W.2d 238 (Neb. 1968); and McElyea v. Safeway Ins. Co., 266 N.E.2d 146 (Ill. 1970). McElyea has been overruled by Doxtater v. State Farm Mutual Auto Ins. Co., 290 N.E.2d 284 (Ill. 1972). Owens is not in point with the current fact situation because the vehicle involved had been specifically rejected from uninsured motorist coverage. Shipley is not in point because the issue involved was whether a motorcycle was a vehicle within the uninsured motorist coverage.

The present majority opinion admits that broadly interpreted, Holcomb is still in the minority view that validates such exclusions as we are dealing with here. I do not think we need to overrule Holcomb to reverse this case. However, if necessary I would be willing to do so because the minority view simply will not stand scrutiny under the Arkansas statute relating to uninsured motorist coverage.

       The appellant alternatively argues this case is distinguishable from Holcomb because, unlike in Holcomb, the insured in this case never rejected uninsured motorist coverage of any motor vehicle, thus not affecting the coverage to which any insured under her policy was entitled pursuant to § 23-89-403. We find this argument meritless because the Holcomb decision was not premised on whether the insured rejected coverage on one of the insured’s vehicles, but, instead, the holding merely construed § 23-89-403 in a manner that precluded coverage to an owner’s other uninsured vehicles when that owner purchased coverage on only one of his vehicles.

       Since the Holcomb decision, the General Assembly added the proviso to § 23-89-403 which continued an insured’s rejection of coverage until the insured withdraws that rejection in writing.


author: William G. Wright, Special Chief Justice. George D. Ellis, Special Associate Justice,

text:
    USAA LIFE INSURANCE COMPANY v. Sam H. BOYCE, Administrator of the Estate of Jimmy Richard Norris, Deceased
    87-178
    745 S.W.2d 136
    Supreme Court of Arkansas
    Opinion delivered February 22, 1988

      Bill H. Walmsley, for appellant.

      Boyce & Boyce, for appellee.
   William G. Wright, Special Chief Justice.

This is an appeal by USAA Life Insurance Company from the trial court’s award of 12% penalty and attorneys’ fees. The insured, a Lieutenant Colonel in the U.S. Army stationed in Georgia, was shot to death on November 13, 1980. His wife, who was the primary beneficiary of the three life insurance policies at issue, was convicted of murdering her husband. The conviction was affirmed on appeal by the Georgia Supreme Court. The alternate beneficiary named in each of the policies was the estate of the decedent, and specifically his attorney, Sam Boyce, as Administrator.

Three insurance policies were issued to the insured by appellant while the insured was a member of the military service, and delivered at times when the insured was a resident of Leavenworth, Kansas; Fayetteville, Arkansas and Fairfax, Virginia. The home office of the insurance company was located in San Antonio, Texas. One of the policies was a decreasing term mortgage protection policy. The other two policies contained provisions for policy loans. The insured had borrowed from those policies and loans were outstanding at the time of his death.

Applications attached to two of the policies stated the permanent address of the insured was “Newark, Independence County, Arkansas.” On one of the policy applications the address for the alternate beneficiary, Attorney Boyce, was listed as “Newport, Arkansas.”

Suit was originally filed on September 24,1981, in Independence County by Attorney Boyce on behalf of the estate. The insurance company, the mother of the decedent and the widow were all named as defendants. The insurance company filed a general denial. The mother of the decedent admitted all of the allegations of the appellee’s complaint. The widow objected to jurisdiction and denied the authority of Attorney Boyce to seek the benefits due under the policies. By assignment filed on January 6,1984, the widow assigned any interest which she might have in the litigation to Attorney Boyce on behalf of the estate.

Following the assignment from the widow, the appellee amended his complaint seeking the face amount of each policy, including accidental death benefits, less unspecified policy loans and the amount due under the decreasing term policy on the date of death. The amended complaint alleged $56,700.00 was known to be the benefit due on December 16, 1979, and requested a proportionate decrease through the date of death. The appellant filed a general denial asking for permission to amend on completion of discovery. An amended answer was subsequently filed, denying any accidental death benefits and denying that the correct amount due under the decreasing term policy was as stated in the amended complaint.

The appellee undertook discovery in the form of interrogatories and request for admissions, and appellant denied the amount due under certain policies and did not provide the amount which was actually due under any of the policies.

On February 24, 1986, over two years after the widow’s assignment was filed, the appellant filed its final amended answer in which it set forth the amount due under each of the policies, including accidental death benefits, and tendered checks containing restrictive endorsements with release language. The appellee rejected same due to the release language, and because of the claim for attorneys’ fees and penalties. The tender by the appellant included the principal due under each policy after offsets for policy loans and the declining balance on the decreasing term policy, and interest at 8 % per annum from the date of the insured’s death.

Trial was held in March, 1986, and appellee acknowledged that the amount tendered by appellant was correct, including the 8 % interest added by appellant. A judgment was subsequently entered in favor of the appellee based upon the amounts tendered, however, the trial court awarded prejudgment interest at the rate of 6 % interest per annum instead of 8 % interest.

Appellant contends Ark. Code Ann. § 23-81-118 (1987) supersedes Ark. Code Ann. § 23-79-208 (1987) or is in conflict and precludes the awarding of attorney’s fees and penalty for nonpayment of benefits in life insurance cases. Appellant further disputes the authority of Arkansas courts to award attorney’s fees and penalty under the facts of this case.

Ark. Code Ann. § 23-81-118 (1987) is not applicable to this case because it does not apply to life insurance policies delivered or issued prior to July 20, 1979. All of the insurance policies in question were issued and delivered prior to 1979. Appellant also misunderstands the nature of an award of prejudgment interest as damages. Pre-judgment interest is awarded for the period of time in which the recovering party has been deprived of the use of money or property. During that period the obligor has had the use of that which rightly belonged to the recovering party. Lovell v. Marianna Federal S. & L. Ass’n., 267 Ark. 164, 589 S.W.2d 577 (1979).

The Arkansas Legislature has seen fit in the case of life insurance companies to increase the 6 % rate of interest provided for most pre-judgment awards under the provisions of Art. 19 § 13 of the Arkansas Constitution to an 8 % interest rate under the provisions of Ark. Code Ann. § 23-81-118 (1987).

The legislature has recognized a social and moral purpose in providing for the allowance of a statutory penalty and attorney’s fees in litigation between insured and insurer. These reasons include discouraging oppressive delay in recognition of liability, deterring arbitrary or capricious denial of claims, and insuring the ability of claimants to obtain legal representation. Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976).

There is no conflict in the awarding of pre-judgment interest and in addition awarding a statutory penalty and attorney’s fees. This contention was disposed of long ago in Maryland Casualty Co. v. Maloney, 119 Ark. 434, 178 S.W. 387, 389 (1915):

It is also contended that the court erred in allowing a penalty of 12 per cent, under the statute in addition to interest at the legal rate, and that the amount of attorney’s fee allowed by the court under the terms of the statute is excessive. We are of the opinion that there was no error in assessing a penalty of 12 per cent, for that is strictly in accordance with the statute. The penalty does not take the place of interest, but it is in addition thereto.

Citing Allstate Insurance v. Ormand, 252 Ark. 773, 480 S.W.2d 939 (1972), appellant contends that Ark. Code Ann. § 23-79-208 (1987) does not apply in this case because the policies were issued in Texas (the home office of the appellant), matured outside the State of Arkansas, the insured resided outside the State of Arkansas and the primary beneficiary resided outside the State of Arkansas.

The allowance of the statutory penalty and attorney’s fees is penal in nature, and is a procedural matter governed by the laws of the State of Arkansas. American Physician’s Insurance Co. v. Hruska, 244 Ark. 1176, 428 S.W.2d 622 (1968). Something more than jurisdiction and venue for the purposes of rendition of judgment upon the policy is required in order to assess the penalty. In Ormand, supra, this Court noted “. . .a careful review of our cases shows that the statutory penalty and attorney’s fee have been allowed in only those cases having a connection with the State of Arkansas.”

Our statute allowing penalty and attorney’s fees relates to the performance of the insurance contract. One of the policies was issued while the insured was actually a resident of the State of Arkansas, and the policies reflect that the insured’s permanent home was in Independence County where this case was filed. The alternate beneficiary to whom benefits were paid was an Arkansas resident. The Arkansas resident was entitled to performance in this state. In New Empire Life Insurance Company v. Bowling, 241 Ark. 1051, 411 S.W.2d 863 (1967) this Court specifically found that Arkansas had sufficient connection to impose penalty and attorney’s fees in a life insurance case where the policy was issued in another state, the death occurred in yet another state, but the beneficiary was an Arkansas resident.

We find that Arkansas had the requisite connection for its courts to impose the statutory penalty and attorney’s fees under the facts of this case.

Appellant also complains about the allowance of penalty and attorney’s fees because the amount due was ultimately tendered prior to trial and because the appellee did not recover the exact amount sought by his suit. It is unclear as to appellant’s reasoning in not filing an interpleader and tendering the proceeds prior to the widow’s assignment of any interest which she might have in the insurance proceeds. There was certainly the possibility of multiple liability to the primary and alternate beneficiary until the relinquishment of the primary beneficiary’s claim. However, in excess of two years passed after the assignment until the insurance company amended its first general denial that it owed anything. It next denied that it owed any accidental death benefits. Finally, a few days before trial, appellant amended its answer and stated the amount due under all policies, including accidental death benefits and the benefits under the decreasing term policy, and tendered same by check with a restrictive endorsement. The delay of some five years and five months after the filing of suit before tendering payment was unreasonable.

The appellee’s original complaint sought recovery for the face amount of all policies. The appellee filed an amendment to his complaint some two years before trial, seeking the face amount of the policies less policy loans and the decreasing amount due under the decreasing term policy. The appellant’s general denial controverted all elements of the appellee’s claim, ARCP 8(b), and the answer also reserved the right to further amend upon the completion of discovery. When it filed its next amended answer, liability for accidental death benefits was denied and did not provide the amount due for the policy loans which were obviously set-offs and should have been pled under ARCP 8(c). Appellee acknowledged that appellant’s tender on the eve of trial represented the proper policy proceeds, including interest which the appellant calculated at 8% per annum. Because appellee did not plead the calculations as to the exact amount of the policy loans or the exact balance then due under the decreasing term policy and because the appellee agreed with appellant at trial that 8 % interest was the proper pre-judgment interest figure, appellant concludes that appellee did not receive the “exact” amount for which he had sued in his amended complaint.

This reasoning is faulty in two respects. First, in the original and amended complaint, the appellee did not pray for pre-judgment interest at a specified rate or in a specified amount. The appellee did nothing more than agree at trial with appellant’s statement of the law as to the appropriate pre-judgment interest. This was not necessarily a matter for pleading or proof at the trial of the cause, as it is not a question for the fact finder. The awarding of pre-judgment interest is a matter of law and there is no right to a trial by jury on this issue. If it is collectable at all, it is a matter for the Court’s determination and may be awarded upon a post-judgment motion. Hooper v. Denham, 281 Ark. 84, 661 S.W.2d 379 (1983).

Secondly, even though appellee was not as specific as he could have been in his amended complaint as to the amount of set-off under the various policies and the decreasing term benefit, he specifically made his claim to the insurance proceeds subject to these set-offs, and that is all the law requires. Federal Life Ins. Co. v. Pearrow, 191 Ark. 597, 86 S.W.2d 1106 (1935); Bronx Fire Insurance Co. v. Cooper, 187 Ark. 93, 58 S.W.2d 678 (1933). The set-off for policy loans and the exact amount of the decreasing term policy were facts within the peculiar knowledge of the insurance company. Until a short time before trial, appellant was litigating under an amended answer which denied any liability for accidental death benefits. It subsequently admitted those benefits were due on the eve of trial. In essence, the insurance company admitted all liability, and provided the specific amounts due after deducting the various set-offs to which the appellee acknowledged in its pleading that the appellant was entitled. In Miller’s Mutual Insurance Co. v. Keith Smith Co., 284 Ark. 124, 680 S.W.2d 102, 103 (1984), this Court stated:

If the insurer has previously refused to pay the correct amount claimed, the penalty and attorneys’ fees are correctly assessed even though the insurer later confesses judgment.

Under these circumstances, the insurance company’s failure to pay policy benefits makes it liable for the statutory penalty and attorney’s fees. The trial court properly allowed 12% statutory penalty and attorney’s fees of $32,500.00 in this case.

Affirmed.

Marian F. Penix, Special Associate Justice joins in this opinion.

George D. Ellis, Special Associate Justice, concurs.

Glaze, J., dissents.

Holt, C.J., and Hickman and Newbern, JJ., recused.

George D. Ellis, Special Associate Justice,

concurring. I am in full agreement with the majority opinion. My purpose for writing separately is to emphasize a single aspect of this case.

By enacting Ark. Code Ann. § 23-79-208, the legislative branch of our government has established a strong and firm public policy in favor of reasonably prompt payment of insurance claims. Likewise, the judicial branch of government has established a parallel and competing public policy against shotgun-style litigation in such cases, by requiring that the plaintiff recover the amount sued for. The legislature has been in session innumerable times over many decades since the beginning of our rule requiring recovery of the amount sued for, and has never taken the occasion to change our rule. Southwestern Insurance Company v. Camp, 253 Ark. 886, 489 S.W.2d 498 (1973).

Problems with the “amount sued for” rule, however, have begun to surface, particularly in the last 20 years or so, due to the increasing use of the phrase “exact amount” in describing the plaintiff’s burden. See generally Farm Bureau Insurance Co. v. Paladino, 264 Ark. 311, 571 S.W.2d 86 (1978); Ford Life Insurance Co. v. Jones, 262 Ark. 881, 563 S.W.2d 399 (1978). Such a phrase has real meaning regarding, for example, a property damage claim in which the dispute centers around extent of damage. However, “exact amount” in the context of the facts of this case lends little to the process of public policy analysis. This is so because the case involves life insurance policies with face amounts, and additionally, accidental death provisions; loans against two of the policies; a decreasing term benefit in the third policy; interest accruing daily on the benefits; and interest accruing daily on the loans. To require a plaintiff to be ready on a given day to compute the “exact amount” from the above list of variables, particularly when most of the information is within the exclusive knowledge of the insurance company, is to reduce the law to a bingo game. I do not believe that such was ever the intent of the legislature in enacting Ark. Code Ann. § 23-79-208, anymore than I believe that such was this court’s intent in using such language as “exact amount.”

The majority opinion correctly points out that “amount sued for” does not and cannot include prejudgment interest, policy loans constituting a setoff, and the like. First, such items simply should not be characterized as proceeds of the policy. And second, to require plaintiff to plead more specifically than was done here would be to require plaintiff to meet an impossible burden. For that reason, I concur with the majority’s holding, which is, as I understand it, that plaintiff met the “amount sued for” requirement by stating his prayer for the face amounts of the policy and interest, less any setoffs for the decreasing term benefit and policy loans. I believe that both policy goals set out above are well served by this holding.


author: Per Curiam.

text:
    Ricky TERRELL v. STATE of Arkansas
    745 S.W.2d 135
    Supreme Court of Arkansas
    Opinion delivered February 22, 1988

      M. Watson Villines II, for appellant.
    No objection.
   Per Curiam.

The appellant, Ricky Terrell, by his attorney, M. Watson Villines II, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late in that it contains no written indication that within thirty days from the filing of a motion for new trial, a ruling was obtained from the trial court either that the motion was being taken under advisement or that the matter was set for hearing on a definite date. Ark. R. App. P. 4(c); Smith v. Boone, 284 Ark. 183, 680 S.W.2d 709 (1984).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


text:
    Larry CLIFTON and Archie Ammons v. Robert GOOD and Christie Good
    87-295
    745 S.W.2d 599
    Supreme Court of Arkansas
    Opinion delivered February 29, 1988

      Compton, Prewett, Thomas & Hickey, P.A., for appellant.

      Honey & Honey, P.A., for appellee.
   Darrell Hickman, Justice.

This simple accident case was tried to the judge without a jury and he dismissed the appellants’ claim for failure of proof, refusing to admit the appellants’ evidence of medical expenses and damages to the vehicle. In the case of the former, the judge ruled the appellants had not shown the expenses were reasonable and necessary; in the case of the latter, he ruled there was a failure to show the “after” value of the vehicle. Clearly, the trial judge abused his discretion regarding the proof of damage to the vehicle.

The owner testified that the vehicle had a fair market value before the accident of $982. After the wreck, he said it was just scrap. When the court interjected that everything had some value, the owner testified he would give $25 for it; the fair market value was $25. The judge refused to admit the testimony.

It is settled law that the owner of property, both real and personal, may testify as to the value of property. L. L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984); Walt Bennett Ford, Inc. v. Brown, 283 Ark. 1, 670 S.W.2d 441 (1984). The judge should have admitted the evidence.

Since the trial judge erroneously refused to admit the testimony, he necessarily was wrong in dismissing the appellants’ lawsuit for failure of proof because the evidence made a prima facie case for the factfinder.

The judge’s ruling regarding the medical bills is not as clearly wrong as that regarding the damages to the vehicle, although the judge made it clear he was going to strictly hold the appellants to the standards of proof. Upon retrial, it is unlikely that the appellants will fall short in proving that the medical bills were reasonable and necessary. See Bell v. Stafford, 284 Ark. 196, 680 S.W.2d 700 (1984).

Reversed and remanded.


author: John I. Purtle, Justice. Tom Glaze, Justice, Darrell Hickman, Justice, Tom Glaze, Justice,

text:
    Steve CLARK, Attorney General, State of Arkansas, et al. v. UNION PACIFIC RAILROAD COMPANY, et al.
    87-205
    745 S.W.2d 600
    Supreme Court of Arkansas
    Opinion delivered February 29, 1988
    [Substituted Opinion on Denial of Rehearing April 18, 1988]

      Steve Clark, Att’y Gen., by: Jerome T. Kearney, Asst. Att’y Gen. and Frank J. Wills III, Asst. Att’y Gen., for appellant.

      Herschel H. Friday and George Pike, Jr., by: George Pike, Jr., for appellee.

      GIaze, J., concurs; Hickman, J., would grant rehearing.

   John I. Purtle, Justice.

This is a case concerning Amendment 59 to the Arkansas Constitution. This amendment was referred to the people by the legislature to counter the effect of our decision in Arkansas Public Service Commission v. Pulaski County Board of Equalization, 266 Ark. 64, 582 S.W.2d 942 (1979). The question in this case is whether a new millage passed after Amendment 59 was implemented can be collected against personal property. The answer is no.

Wynne School District #9 voted an increase of three mills in 1985. The collector of Cross County, upon the advice of the attorney general, applied the increase equally to both real and personal property. (The attorney general had changed his opinion which first said the new millage could not be collected against personal property.) The appellees filed suit to prevent collection of the millage against personal property. The chancellor held the new millage could not be collected against personal property until the rates equalize. The chancellor was correct. Amendment 59 provides that the amount of revenue derived from personal property cannot be increased until the rates for real and personal property equalize. It is undisputed that application of the new millage to personal property would increase the revenue collected.

The decision in Public Service Commission v. Pulaski County Board of Equalization was based on the Arkansas Constitution, Art. 16, § 5 as it read before the adoption of Amendment 59. The former § 5 read in pertinent part:

§ 5 All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value

Amendment 59 substituted a new section 5 and added sections 14, 15 and 16 to Const., Art. 16. The amendment provides in part:

§ 5(a) All real and tangible personal property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property for which a tax may be collected shall be taxed higher than another species of property of equal value, except as provided and authorized in Section 15 of this Article, and except as authorized in Section 14 of this Article.
§ 14(a) Whenever a county wide reappraisal or reassessment of property subject to ad valorem taxes made in accordance with procedures established by the General Assembly shall result in an increase in the aggregate value of taxable real and personal property in any taxing unit in this state of ten percent (10%) or more over the previous year the rate of city or town, county, school district, and community college district taxes levied against the taxable real and personal property of such taxing unit shall, upon completion of such reappraisal or reassessment, be adjusted or rolled back, by the governing body of the taxing unit, for the year for which levied as provided below. . . . The adjustment or rollback of tax rates or millage for the “base year” as hereinafter defined shall be designed to assure that each taxing unit will receive an amount of tax revenue from each tax source no greater than ten percent (10%) above the revenues received during the previous year from each such tax source, adjusted for any lawful tax or millage rate increase or reduction imposed in the manner provided by law . . . and after making the following additional adjustments:
(i) By excluding from such calculation the assessed value of, and taxes derived from, tangible personal property assessed in the taxing unit, . . .
(ii) By computing the adjusted or roll-back millage rates on the basis of the reassessed taxable real property for the base year that will produce an amount of revenue no greater than ten percent (10%) above the revenues produced from the assessed value of real property . . . from millage rates in effect in the taxing unit during the base year in which the millage adjustment or rollback is to be calculated.
Provided, however, that the amount of revenues to be derived from taxable personal property assessed in the taxing unit for the base year. . . shall be computed at the millage necessary to produce the same dollar amount of revenues derived during the current year in which the base year adjustment or rollback of millage is computed, and the millage necessary to produce the amount of revenues received from personal property taxes received by the taxing unit. . . shall be reduced annually as the assessed value of taxable personal property increases until the amount of revenues from personal property taxes. . . will produce an amount of revenues from taxable personal property equal to or greater than received during the base year, and thereafter the millage rate for computing personal property taxes shall be the millage rates levied for the current year. [Emphasis added.]

The amendment provides that the General Assembly shall establish by law the manner in which the equalization of assessment and millage is to be accomplished. In an attempt to clarify the matter, the General Assembly enacted Act 848 of 1981 (Ark. Code Ann. §§ 26-26-401 et seq. (1987)) which provides at § 405:

(a) Revenues derived from personal property by each taxing unit in the county are to be frozen at the base-year levels. The millage applied to personal property only is then adjusted downwards in the same proportion that the assessment base increases. The current millage is defined as the millage that was used in each taxing unit to derive the base year revenues for personal property. This procedure shall be followed each year until the personal property millage rate is equal to, or lesser than, the millage rate applied to real estate, at which time the interim adjustment is complete, and both personal property and real estate shall thereafter be taxed at the same millage rate.

From the words used in Act 848 it is clear that the millage applied only to personal property will be adjusted downwards in the same proportion that the assessment base for all property increases. The concluding sentence clearly requires that this procedure be repeated annually until the interim adjustment is complete, at which time “both personal property and real estate shall thereafter be taxed at the same millage rate.”

We glean from the language of Amendment 5 9 that the revenues produced from real estate taxes cannot be increased more than ten percent (10%) in the “base year” (the year following completion of reappraisal or reassessment). However, the adjustment or rollback in the “base year” is to be “adjusted for any lawful tax or millage rate increase or reduction imposed in the manner provided by law. . ..” Therefore, in the absence of a lawful increase in the millage rate (which would apply only to real estate until the rates are equalized), the personal property rate reduction will depend upon the increase in revenues from real property, after making the specified adjustments.

Although Amendment 59 is obtuse, it can be seen that the overall intent was to equalize the assessments and millage rates with respect to personal and real property taxes after completion of reappraisal. In order to equalize the rate of taxation, it obviously is necessary to (1) lower the assessed valuation of personal property, (2) increase the assessed valuation of the real estate, or (3) hold the personal property rates at the present level, with adjustments, until the real estate tax rates reach the same level. Adding new millage at the same rate to personal property and real property would never equalize the two, and the goal of Amendment 59 could never be reached.

Act 848 and Amendment 59 require the eventual equalization of personal and real estate property tax rates. Therefore, the only practical way of obtaining equality between the two is to apply new millage rates only to realty until such time as the rates between the two classifications are equalized.

The only issue presented to this court is whether Amendment 59 requires that personal property be exempted from new levies until such time as the rates are equalized. We hold that personal property is exempt from the new millage under these circumstances.

We do not decide the wisdom nor the constitutionality of Amendment 59. Our duty is to interpret the amendment and law as best we can and to enforce it. Therefore we affirm the decision of the chancellor.

Affirmed.

Glaze, J., concurs.

Hickman, J., dissents.

Tom Glaze, Justice,

concurring. I agree with the result reached by the majority and have no doubts that, if this court were to hold otherwise, the voters’ intent, in approving Amendment 59, to equalize assessments and millage rates with respect to personal and real property taxes could never be achieved. To accept appellants’ argument that personal property should be subject to ad valorem taxes before this equalization process is achieved runs counter not only to the spirit and intent of Amendment 59, but also is in direct conflict with the Amendment’s wording. For example, Amendment 59 provides:

Provided, however, that the amount of revenues to be derived from taxable personal property assessed in the taxing unit for the base year, other than personal property taxes to be paid by public utilities and regulated carriers in the manner provided hereinabove, shall be computed at the millage necessary to produce the same dollar amount of revenues derived during the current year in which the base year adjustment or rollback of millage is computed, and the millage necessary to produce the amount of revenues received from personal property taxes received by the taxing unit, for the base year shall be reduced annually as the assessed value of taxable personal property increases until the amount of revenues from personal property taxes, computed on the basis of the current year millage rates will produce an amount of revenues from taxable personal property equal to or greater than received during the base year, and thereafter the millage rates for computing personal property taxes shall be the millage rates levied for the current year. (Emphasis added.)

In view of the foregoing language, I will briefly review the undisputed and relevant facts here which reflect how the provisions of Amendment 59 have been applied in School District No. 9 of Cross County since that Amendment went into effect. It is undisputed that, in the base year of 1982, the amendment of revenues derived from taxable personal property assessed in School District No. 9 in Cross County resulted in the collection of $323,200. In 1982, the millage rate on personal property was 49, or 32.5 more millage than that imposed on real property in the district. To produce the Amendment’s required same dollar amount of revenues collected from personal property taxes in 1982, the personal property millage rate in the district was adjusted downward to 45.4 mills. This adjustment narrowed the rate between personal and real property in the district to 28.9 mills. Specifically, the Cross County Assessor in 1983 collected $322,718 compared to the $323,200 received in the 1982 base year — which reflects the assessor’s efforts (as required under Amendment 59) to keep the current year (1983) revenues close to the same dollar amount collected in the base-year 1982.

In 1984, the collections resulting from the personal property millage was $324,604, which again was close to the same dollar amount the county collected from the district in base-year 1982. At the same time, the $324,604 amount was based on a lower millage rate which was adjusted down to 40.9. This lower rate and approximate same dollar amount was obviously due to an increase in the value of and the assessments on the personal property in the school district. This lower millage rate in 1984 further narrowed the gap between real and personal property rates to 24.4 mills.

The equalization process, which was being achieved in the school district, was impeded in 1985 because the voters in the district approved an additional three mill tax, which the county assessor imposed against both real and personal property in the school district. In doing so, the collections from personal property assessments rose to $351,531, or $28,000 more than the amount collected in base-year 1982. Obviously, the assessor’s decision to apply the new three mill rate against personal property in the district directly contravened the clear wording of Amendment 59, as I set out above. In addition, the decision to apply the new millage against both real and personal property slowed the process, which had been effected in the school district, of equalizing the rates between real and personal property.

Amendment 59 clearly imposes the duty to remove the illegal discrimination that exists between owners of real property and personal property. To impose new millages on both real and personal property unquestionably slows the process of equalizing the rates between the two. And, in counties where personal property assessments have actually gone down, equalization between the two types of property would never be achieved by adding new millages to both. For these reasons and those noted in the majority opinion, I believe the trial court’s decision should be affirmed.

Darrell Hickman, Justice,

dissenting. Amendment 59 is the “Godzilla” of constitutional amendments. Nobody knows what it means. It was the child of fear and greed, spawned after our decision in 1979 which held that the Arkansas Constitution required that all property be assessed at market value. Arkansas Public Service Comm. v. Pulaski County Board of Equalization, 266 Ark. 64, 582 S.W.2d 942 (1979). Since it was a widespread practice that property, especially real property, had not been assessed at market value, our decision meant that the taxes of many property owners would double, triple, or more. This was the fear, especially of residential property owners, that spawned the amendment. So Amendment 59 to the constitution was proposed in the legislature. Marvin Russell, the director of the Assessment Coordinating Division of the Public Service Commission, explained what happened in the legislature:

Mr. Russell: Judge, when we drafted Amendment 59, the purpose was to prevent high taxation to everybody, homeowners and everybody else. It established a roll back. Now, in that same amendment, to get support of Farm Bureau and AFA, they slipped in their section for preferential treatment —
The Court: (Interposing) 14.
Mr. Russell: (Continuing) — for preferential treatment, and then everybody got in. They raised this Million Dollars, and they passed it, you know. Everybody voted for it. They got preferential treatment on assessment, but the rates are applied equally to their assessment or to your house assessment or to your personal automobile assessment.
The Court: I can understand. The rates should be applied equally, but the assessment is not equal. Is that correct?
Mr. Russell: No, sir, the assessments — they have preferential treatment in that they have use value based on productivity of the soils for those type lands, and the rate is in the roll back. When we rolled back the rate, what we would have done is reduced everybody’s personal property by two-thirds. We would have retained about a third of it, it would have cost the schools a bundle of money. And, this became a political problem in the Legislature, and it was kicked around there until the final day for getting the Amendment on the ballot for it to be legal for that year. And, Governor Clinton came down with this idea of freezing personal property, and we told him then that it would be troublesome, that it would be a mad house to handle. He said, ‘can you do it?’ and we said, ‘we probably can do it, but it’s not a good idea.’ He said, ‘we’ve got to get it out.’ So, they adopted that freeze on personal property at that point in time, and that was done without any impact study or any research, and that was the real flaw with Amendment 59. We are having to live with that thing, and the procedure was spelled out that you would adjust personal property — now, these people won’t pay any more tax right now. They’ve been paying high. So, they’ll just continue to pay high, and they’ll be reduced each year. You’ll pay less each year as the rate drops.

This was the greed that surfaced and resulted in powerful special interests being granted preferential treatment. They were the utility companies, the regulated carriers, the large landowners, especially the farmers, and the commercial and timber interests. The appellee railroad company is one of those interests, a regulated carrier.

Ironically, in the forefront promoting Amendment 59 were the local school officials; the schools were the first to suffer from Amendment 59.

A special study commission of the legislature was created in 1985 to study the impact of Amendment 59. Its report was filed in September of 1986. “Special Study Commission on Amendment 59,” Final Report, September 1986. Most of the evidence heard by the commission consisted of testimony by school officials regarding how much money Amendment 59 has and will cost Arkansas’ primary and secondary public schools. For example, Dr. Ed Kelly, at one time superintendent of the Little Rock public schools, said the amendment would cost the Little Rock schools 14 million dollars over the next ten years. The superintendent of the Fayetteville public schools said it would cost Fayetteville schools over 26 million dollars; Greenland school district, a half million dollars, and so on.

So much for the background of Amendment 59. This is the first case regarding the interpretation of Amendment 59.

Actually, not a handful of people in Arkansas pretend to understand Amendment 59, and even those who do disagree on what it means. An extended discussion occurred as to how new millage voted would be applied. Mr. Russell said new millage should be applied to personal property. He explained what had occurred in this case:

The Court: Now, where are we in Cross County then? What are they complaining about?
Mr. Russell: They have passed — they have built a new school building over there. They wanted three mills. They voted three mills.
The Court: The people did.
Mr. Russell: Yes.
The Court: To build a new school.
Mr. Russell: To build a new school building. And, we believe that it should be charged against personal and real estate because in the freeze on personal property, we’d have to separate it — we do this every year. We have to audit, and you have to separate each levy within the total. Say you had thirty mills of personal property, ten mills of that is charged for a debt service, a particular issue.
The Court: Bonds or whatever.
Mr. Russell: Right. A particular issue. Then say ten mills of it may be for maintenance and operation, paying teachers’ salaries. And, another ten mills may be for another particular debt service, another particular issue, and each of those are obligated to that issue at the revenue level that we’re frozen at in the base year.
The Court: All right.
Mr. Russell: Say it was Ten Thousand, Ten Thousand, and Ten Thousand. Well, we can’t give them less than that.
The Court: It’s already obligated.
Mr. Russell: It’s obligated. Now, if we start — if we add three mills, there’s nothing to cover it over here. When you finish out your equalization, the obligation is tied to those millage levies that are in place in the base year. So, any new levy for a new purpose would never be serviced. When you get down to your official rate, there’s no place for those three mills to add on. You can’t take away from those that are obligated. So, it’s infinitely — or into infinity, it is never paid on that levy unless you charge it as a new levy for a new purpose. Another example that you would be aware of is — say, there is three allowed levies for school millage. There’s maintenance and operation; there’s capital outlay; and, then there’s debt service. Each of those are three separate entities. All right, suppose they only had maintenance and operation, and their fifty mills was all for M and O, going for school teachers’ salaries, and their building burned, and they have to vote a new millage for a new building. This fifty mills and the Thirty Thousand Dollars or whatever is committed to maintenance and operation and frozen at that. All right, we’ve got to build a new building. Where are you going to fund the personal property from? You’ve got to allow it to be charged against the personal property; otherwise, it will never fund its portion of that debt service. It can never have a place to enter into — you’d never have debt service millage against personal property or capital outlay. Or if you want to go to cities and counties, the same precedent would apply there if you do away with the road tax. If they don’t have a road tax, for example, and the Quorum Court comes along two years later and says, ‘Okay, we’ve decided we want a road tax,’ and they appropriate three mills. It’d have to go against personal and real; otherwise, it would never fund. The people paying personal property tax would never pay their share of the tax burden. The balance of the millages are obligated—
The Court: (Interposing) Already obligated.
Mr. Russell: Already obligated, yes, sir. The funds there, the revenues created are obligated one hundred percent, and there’s no way we can borrow from them or intermingle them in any form. But, they will equalize in time.

At one point the trial judge observed:

Well, could you both be correct, and the people who drafted this thing didn’t know what the hell they were doing, or didn’t think down the road of what would happen?

It is clear that in some counties the tax rates may never equalize, which would then mean taxes on personal property would never increase.

Amendment 59 does not say that new millage voted cannot be applied to personal property, and I would not interpret it that way. Union Pacific Railroad Company, one of the appellees, received preferred treatment in Amendment 59 and now seeks to avoid paying personal property taxes to fund this three mill increase. Union Pacific reminds us they are in the same category as owners of pickup trucks in Cross County. I wouldn’t want to overlook that consideration. I doubt that the pickup truck owner in Cross County would mind the dollar or so he would pay to the local school district if the Union Pacific Railroad Company would pay the hundreds or perhaps thousands it owes.

I would reverse the judgment.

Supplemental Concurring Opinion on Denial of Rehearing

April 18, 1988

Tom Glaze, Justice,

concurring. I originally concurred in the result reached in this matter. The majority now deletes certain language (I consider dictum) from the original opinion and adds other language in its place. Part of the deleted wording indicated real estate taxes could not be increased more than ten percent after base-year 1982. To the extent the majority corrects its opinion by deleting such dictum, I agree.