author: A NNABELLE Clinton Imber, Justice. R AY THORNTON, Justice,

text:
    CADILLAC COWBOY, INC. v. Pamela Sue JACKSON
    00-1243
    69 S.W.3d 383
    Supreme Court of Arkansas
    Opinion delivered March 14, 2002

      Mercy, Carter & Elliott, L.L.P., by: W. David Carter, for appellant.

      Crisp, Boyd & Poff, L.L.P., by: Bill Schubert, for appellee.
   A NNABELLE Clinton Imber, Justice.

This is the second .appeal in this case. See Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999) (“Jackson F). The appellant, Cadillac Cowboy, Inc., appeals from a jury verdict in Howard County Circuit Court in favor of Pamela Sue Jackson, individually and as the administratrix of the estate of James C. Jackson, deceased. The jury found that both Cadillac Cowboy and Kevin Holliday were liable for the death of James C. Jackson, awarding total damages of $916,363.70. Cadillac Cowboy raises three points on appeal: (1) the trial court erred in refusing to apply the Arkansas Dramshop Act, Ark. Code Ann. § 16-126-101, et seq. (Supp. 2001), which was enacted after this court’s decision in Jackson I; (2) the trial court erred in denying Cadillac Cowboy’s motion for judgment notwithstanding the verdict; and (3) the trial court erred in instructing the jury to apportion fault between separate defendants Cadillac Cowboy and Kevin Holliday. We conclude that the points raised are without merit, and we affirm.

Mr. Jackson was killed after his automobile was struck by a pickup truck driven by separate defendant Kevin Holliday. Prior to the accident, Mr. Holliday had been drinking at a club owned by the appellant called the Sundowners Club. In her complaint, Mrs. Jackson alleged that on August 31 and September 1, 1994, Cadillac Cowboy, by and through its owners and employees, served alcoholic beverages to Mr. Holliday, who they knew or should have known was extremely intoxicated and intended to drive his vehicle while in an intoxicated state.

The trial court dismissed the complaint pursuant to Ark. R. Civ. P. 12(b)(6) based upon our holding in Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965), that the consumption of alcohol was the sole proximate cause in situations where vendors, licensed by the state to sell alcoholic beverages, sell alcohol to intoxicated persons who later injure third parties. In the first appeal from the trial court’s dismissal order, we examined the reasoning expressed in Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997), particularly with respect to our legislature’s enactment of statutes imposing a high duty of care on vendors licensed to sell alcohol in Arkansas. Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999). We recognized that vendor liability extended not only to the sale of alcohol to minors, but also to the sale of alcohol to intoxicated persons. Id. Our respective holdings in Shannon and Jackson I relied upon the legislature’s expression of state policy in effect at the time appeal was taken to this court.

In Shannon, we concluded that the General Assembly had assigned a high duty of care to licensed alcohol vendors as set forth in the affirmative requirements of statutory provisions. Shannon v. Wilson, supra. Similarly, in Jackson I, we turned again to Act 695 of 1989, which stated in pertinent part:

(a) It is the specifically declared policy of the General Assembly of the State of Arkansas that all licenses issued to establishments for the sale or dispensing of alcoholic beverages are privilege licenses, and the holder of such privilege license is to be held to a high duty of care in the operation of the licensed establishment.
(b) It is the duty of every holder of an alcoholic beverage permit issued by the State of Arkansas to operate the business wherein alcoholic beverages are sold or dispensed in a manner which is in the public interest, and does not endanger the public health, welfare, or safety. Failure to maintain this duty of care shall be a violation of this act and grounds for administrative sanctions being taken against the holder of such permit or permits.

1989 Ark. Acts 695 (codified at Ark. Code Ann. § 3-3-218(a) & (b) (Repl. 1996)). Noting further that the General Assembly had deemed the sale of alcohol “to a habitual drunkard or an intoxicated person” to be a misdemeanor, Ark. Code Ann. § 3-3-209 (Repl. 1996), we determined that the “weighty responsibility” placed by our state upon licensed vendors of alcohol established a duty of care which extended to civil liability. Jackson v. Cadillac Cowboy, 337 Ark. 24, 29, 986 S.W.2d 410, 413 (1999).

In reversing the dismissal order and remanding the case to the trial court, we reiterated the duty of care set forth in the statutes that existed at the time of our decision. Moreover, we held that “evidence of the sale of alcohol by a licensed vendor to an intoxicated person is some evidence of negligence,” and we overruled Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965).Jackson I, 337 Ark. at 33-34, 986 S.W.2d at 415. Upon remand, the trial court instructed the jury based upon the standard of care announced in our mandate in Jackson I.

After our decision in Jackson I, but prior to the trial on remand, the General Assembly passed Act 1596 of 1999, which stated in pertinent part:

SECTION 1. The General Assembly finds and determines that it needs to clarify and establish its legislative intent regarding the sale of alcoholic beverages as addressed by the Supreme Court of Arkansas in “Shannon v. Wilson, et. al” (96-762: June 23, 1997) and “Jackson v. Cadillac Cowboy, et. al.” (98-574: March 18, 1999).
SECTION 2. The General Assembly finds and determines that the knowing sale of alcoholic beverages by a retailer to a minor is contrary to the public policy of the State of Arkansas.
SECTION 3. In cases where it has been proven that an alcoholic beverage retailer knowingly sold alcoholic beverages to a minor, or sold under circumstances where such retailer reasonably should have known such purchaser was a minor, a civil jury may determine whether or not such knowing sale constituted the proximate cause of any injury to such minor, or to a third person, caused by such minor.
SECTION 4. In cases where it has been proven that an alcoholic beverage retailer knowingly sold alcoholic beverages to a person who was clearly intoxicated at the time of such sale or sold under circumstances where such retailer reasonably should have known such person was clearly intoxicated at the time of such sale, a civil jury may determine whether or not such sale constitutes a proximate cause of any subsequent injury to other persons. For purposes of this Act, a person is considered clearly intoxicated when such person is so obviously intoxicated to the extent that, at the time of such sale, he presents a clear danger to others. It shall be an affirmative defense to civil liability under this section that an alcoholic beverage retailer had a reasonable belief that the person was not clearly intoxicated at the time of such sale or that the person would not be operating a motor vehicle while in the impaired state.
SECTION 5. Except in the knowing sale of alcohol to a minor or to a clearly intoxicated person, the General Assembly hereby finds and declares that the consumption of any alcoholic beverage, rather than the furnishing of any alcoholic beverage, is the proximate cause of injuries or property damage inflicted upon persons or property by a legally intoxicated person.

1999 Ark. Acts 1596 (codified at Ark. Code Ann. § 16-126-101, et seq. (Supp. 2001) (“Dramshop Act”). In this appeal, Cadillac Cowboy contends that the Dramshop Act should have controlled the disposition of this case upon remand; that is, sections 16-126-101, et seq. should have been incorporated into the jury instructions given at trial. As previously stated, the trial court instructed the jury in accordance with the standard of care set forth in Jackson I.

Standard of Care

Cadillac Cowboy argues that the General Assembly clearly intended for the standard of care set forth in the Dramshop Act to apply to the instant case upon remand. As support for this proposition, Cadillac Cowboy points to the following language found in the Dramshop Act’s proposed emergency clause: “[t]his act should go into effect as soon as possible in order that subsequent litigation be subject to this act.” See 1999 Ark. Acts 1596, § 10. The emergency clause, however, was not adopted by the General Assembly and was erroneously included in the codification of Act 1596. See Ark. Code Ann. 16-126-101, et seq. Thus, we need not address the meaning of “subsequent litigation” as used in the proposed emergency clause, nor should we attempt to use the failed clause to attempt to illuminate the intent of the legislature.

Cadillac Cowboy also relies upon our decisions in Treiber v. Hess, 301 Ark. 97, 782 S.W.2d 43 (1990), and VanHook v. McNeil Monumnet Co., 107 Ark. 292, 155 S.W. 110 (1913), for the proposition that the trial court was obligated to apply the Dramshop Act to the case upon remand. In both Treiber v. Hess and VanHook v. McNeil, we applied legislation that had taken effect subsequent to the trial below but before the respective cases came to this court on a first appeal. Thus, the procedural posture in Treiber and VanHook is inapposite to the instant case. Moreover, in Treiber, supra, we followed an express provision of the act which stated that the abolition of the cause of action for alienation of affection did “not apply to litigation pending before the effective date of [the] act.” Treiber v. Hess, 301 Ark. at 97, 782 S.W.2d at 43 (construing section 8 of Act 46 of 1989). Cadillac Cowboy cites no authority, and we aware of none, in which this court has affirmed a trial court that ignored our mandate and applied a statute enacted after our remand of a case.

In Jackson I, we conclusively set forth the standard of the duty of care as contained in the statutes that existed at the time of our decision. We held:

the General Assembly has spoken on this point and has established a high duty of care on the part of holders of alcohol licenses, which includes the duty not to sell alcohol to high-risk groups, including intoxicated persons. Stated a different way, a duty of care exists on the part of licensed alcohol vendors not to endanger the public health, welfare, or safety, and that duty is breached when vendors sell alcohol to intoxicated persons in violation of § 3-3-209.

337 Ark. at 29, 986 S.W.2d at 413 (emphasis added). Upon remand, the trial court concluded that it was bound by our mandate in Jackson I and charged the jury accordingly. The court gave the standard negligence instructions from Arkansas Model Jury Instructions — Civil (AMI Civil 3d 203, 302, 303, and 305), as well as the following instructions:

A person is intoxicated when, as a result of drinking alcoholic beverages, he has lost the normal control of his physical or mental faculties. AMI 606
In connection with the following question, you should consider that there was in force in the State of Arkansas at the time of the occurrence a statute which provided that no person shall sell intoxicating liquor to an intoxicated person.
A violation of this statute, although not necessarily negligence, is evidence of negligence to be considered by you, along with all the other facts and circumstances in the case. AMI 601 and A.C.A. 3-3-209

Mrs. Jackson contends that the trial court was correct in following the law of the case as set forth in our mandate. We agree.

The venerable doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. The doctrine serves to effectuate efficiency and finality in the judicial process. Frazier v. Fortenberry, 5 Ark. 200 (1843); see also, 5 Am. Jur. 2d Appellate Review § 605 (1995). We have said the following with regard to the law-of-the-case doctrine:

The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998). On the second appeal, the decision of the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented. Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994).

Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 346, 47 S.W.3d 227, 237 (2001). The rationale for the adherence to a strict application of the rule — the avoidance of the disorder and unpredictability that would follow a departure from the doctrine — has not changed. In its brief, Cadillac Cowboy does not address the doctrine of law of the case, nor does it cite any relevant authority for a deviation from the doctrine in this case. As this court has stated many times, arguments that are unsupported by convincing argument or authority will not be considered on appeal, unless it is apparent without further research that the arguments are well-taken. Hart v. McChristian, 344 Ark. 656, 42 S.W.3d 552 (2001) (citing Perryman v. Hackler, 323 Ark. 500, 916 S.W.2d 105 (1996) and Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995)). Likewise we will not modify our well-established judicial doctrine and reverse the trial court when an appellant neither cites authority nor makes an argument in support of such a result. Moreover, because the General Assembly was aware of our decision in Jackson I when it enacted the Dramshop Act, Ark. Code Ann. § 16-126-101, we must assume that it was also aware of our remand in Jackson I, as well as the judicial doctrine of the law of the case.

Substantial Evidence

Cadillac Cowboy moved for a directed verdict and for a judgment notwithstanding the verdict on grounds that there was “no evidence in the record from which a jury could infer that Kevin Holliday was intoxicated or [. . .] was in the club on the night in question.” On appeal, Cadillac Cowboy first asserts that there was insufficient evidence to support a finding of liability under the Dramshop Act; that is, that the jury could not have concluded with a reasonable certainty that Cadillac Cowboy was aware that Mr. Holliday was “clearly intoxicated” as defined by the Act. In view of our previous holding that the trial court properly instructed the jury in accordance with the standard of care set forth in Jackson I, we need not address this argument. Thus, we limit our review on this point to Cadillac Cowboy’s alternative argument that there was no substantial evidence to support a verdict that Cadillac Cowboy sold alcohol to an “intoxicated person” in violation of the standard of care set forth in Jackson I.

The standard of review for a motion for judgment notwithstanding the verdict is whether there is substantial evidence to support the jury verdict. Gibson Appliance Co. v. Nationwide Ins. co., 341 Ark. 536 (2000); Esry v. Carden, 328 Ark. 153 (1997). Substantial evidence is defined as “evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture.” Esry v. Carden, supra. In addition, we have held that in examining whether substantial evidence exists, all evidence must be examined in the light most favorable to the party on whose behalf the judgment was entered and given its highest probative value, taking into account all reasonable inferences deducible from it. Id. In reviewing the evidence, the weight and value to be given the testimony of witnesses is a matter within the exclusive province of the jury. Hall v. Grimmett, 318 Ark. 309, 855 S.W.2d 297 (1999).

According to the evidence presented at trial, Mr. Holliday had consumed a large quantity of alcohol on August 31 and September 1, 1994. Robert “Yankee Bob” Wehrheim testified that he was with Mr. Holliday most of the day of the accident, and that he had seen Mr. Holliday consume six to eight beers during the day, one beer in the truck on the way to the Sundowners Club, and several more beers and at least one mixed drink at the club. Although Mr. Wehrheim stated that he “did not see Kevin act in a way that would tell me or anyone that was looking at him that he was intoxicated,” he also admitted that he had been drinking alcohol with Mr. Holliday most of the day.

Kevin Holliday’s own testimony confirmed that he started drinking beer about noon that day and continued drinking throughout the entire afternoon and into the night. With regard to the amount of alcohol he consumed that afternoon, he could not recall whether he and Mr. Wehrheim shared a case of beer (24 cans) or a half-case of beer (12 cans). Mr. Holliday acknowledged drinking beer during the whole period of time he was the club; but, he denied drinking any alcohol after leaving the club that night “at about between 11:00 and 11:30, closer to 11:30.” He estimated that it took no more than one hour to travel from the club to the scene of the accident. Finally, while he could not state how much alcohol he had consumed on the day of the accident, Mr. Holliday conceded that if he had been intoxicated, he would have been intoxicated when he left the club.

Sergeant John Watson of the Arkansas State Police, who arrived at the scene of the accident shortly after 12:45 a.m. on September 1, 1994, testified that Mr. Holliday appeared to be intoxicated. Despite Sergeant Watson’s testimony that he could not say what Mr. Holliday’s condition was between eight and eleven o’clock earlier that evening, the jury could have inferred from the testimony summarized above that Mr. Holliday was intoxicated while he was drinking at the Sundowners Club. Moreover, the jury was not required to believe that Mr. Holliday drove away from the club promptly at eleven o’clock. Both Mr. Wehrheim and Mr. Holliday stated that their departure time could have been as late as 11:30 p.m., rather than 11:00. Furthermore, Elaine Atkins testified that she had seen Mr. Holliday in an “extremely intoxicated” condition on more than one occasion at the Sundowners Club.

Cadillac Cowboy nonetheless contends that “the only testimony concerning Mr. Holliday’s condition while being served at the club on the night in question was that he was not impaired, intoxicated, or clearly intoxicated.” In that regard, it points to the testimony of Billy Burns, the manager of the Sundowners Club, Mike Tony, a bartender at the club, and Dennis Tate, a former bartender at the club. We do not agree that this testimony by both past and present club employees is undisputed. It has long been the law that the testimony of a party interested in the result of the action will not be regarded as undisputed in determining the sufficiency of the evidence. Wingate Taylor-Maid Transport, v. Baker, 310 Ark. 731, 840 S.W.2d 179 (1992); Cousins v. Cooper, 232 Ark. 605, 339 S.W.2d 316 (1960). As to any conflicting evidence presented in this case, it is up to the jury to resolve the conflicts in the testimony and judge the weight and credibility of the evidence. Hall v. Grimmett, supra; Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993). Based on the evidence presented at trial, the jury could have concluded, without speculation, that Mr. Holliday was intoxicated during the time he was being served alcohol at the Sundowners Club. Reviewing the evidence in the light most favorable to Mrs. Jackson, we conclude there was substantial evidence to support the jury’s verdict.

Apportionment of Fault

Cadillac Cowboy’s final point on appeal is that the trial court should not have submitted the following interrogatory to the jury on the question of liability:

Answer this interrogatory only if you have answered “yes” to more than one of the Interrogatories numbered 1 and 2.
Using 100 percent to represent the total responsibility for the occurrence and any injuries or damages resulting from it, apportion the responsibility between the parties whom you have found to be responsible.
Kevin Holliday: _%
Cadillac Cowboy, Inc.: _%

The jury found Mr. Holliday 75% at fault, and Cadillac Cowboy 25% at fault. Cadillac Cowboy argues that there was “no need to submit the comparative causation interrogatory,” because neither of the defendants had pled, proved, or argued that the decedent was in any way negligent in connection to the accident. Although Cadillac Cowboy concedes that “ordinarily this error might be considered harmless,” it proceeds summarily to conclude that the comparative fault interrogatory, combined with comments made by Mrs. Jackson’s counsel during voir dire, “apparendy led the jury to believe it had to put some percentage of responsibility on [Cadillac Cowboy] for Plaintiff to obtain a recover.” This argument is without merit.

The challenged interrogatory was preceded by two interrogatories asking the jury to make a finding as to whether or not each of the respective defendants was negligent. The trial court directed the jury to consider each of the interrogatories as a separate verdict. Furthermore, the jury was clearly instructed to answer the challenged interrogatory only if it found negligence on the part of both Mr. Holliday and Cadillac Cowboy. Absent evidence to the contrary, there is a presumption that the jury obeyed the court’s instructions. State v. Robbins, 342 Ark. 262, 27 S.W.3d 419 (2000); Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999). Even assuming the unnecessary interrogatory was erroneous, we must conclude that the jury was not misled because the instruction was obviously cured by other correct instructions. Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993); Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993).

Counterpoints on Appeal

In a section of her brief captioned “Counterpoints on Appeal,” Mrs. Jackson raises an argument that the trial court erred in refusing to allow her to present evidence that a young man accompanying Mr. Holliday on the night of the accident was a minor. She contends that such evidence would have been relevant to impeach Mr. Wehrheim’s testimony, as well as to impeach several other witnesses regarding their observations and perceptions. Mrs. Jackson also argues that the trial court erred in excluding evidence that Mr. Flolliday called the club to see if he could bring his “underage companion” with him.

Mrs. Jackson, however, never filed a notice of cross-appeal in order to preserve these issues for our review. See Ark. R. App. P. — Civil 3(d) (2001). She also failed to prepare a supplemental abstract of a proffer of the excluded testimony. Failure to proffer evidence so that this court can determine if prejudice has resulted from its exclusion precludes review of the evidence on appeal. Duque v. Oshman’s Sporting Goods & Servs., Inc., 327 Ark. 224, 937 S.W.2d 179 (1997); Carr v. General Motors Corp., 322 Ark. 664, 911 S.W.2d 575 (1995). Furthermore, because we affirm on direct appeal, it is not necessary that we address the points on cross-appeal.

Affirmed.

Corbin and Thornton, JJ., dissent.

R AY THORNTON, Justice,

dissenting. Because the majority opinion completely ignores the principles of separation of powers, and chooses to arbitrarily apply the doctrine oí law ol the case, I must respectfully dissent. While the majority opinion is correct that Arkansas has never had an opportunity to consider the implications of an intervening legislative enactment on the law of the case in a pending legal action, other jurisdictions have encountered this situation and have determined that the law of the case doctrine does not apply. Specifically, in Reich v. Miller, 260 Iowa 929, 151 N.W.2d 605 (1967), the Iowa Supreme Court held:

[T]he doctrine of the law of the case has been held to have no application where, in the interval between the two appeals, there has been a change in the law by legislative enaction or judicial ruling.

Id. See also Jordon v. Jordon. 132 Ariz. 38, 643 P.2d 1008 (1982). The Supreme Court of Utah, agreeing with Iowa and Arizona, acknowledged that:

the law of the case doctrine does not apply to a case where the policy of the law has been changed in the meantime by a legislative enactment, in a case where the amended provision deals only with procedure rather than with making a change in substantive law[.]

Petty v. Clark, 113 Utah 205, 192 P.2d 589 (1948). In Petty, the Utah Court also explained that “an extensive research has failed to disclose any case where any court has held that the law of the case doctrine applies to this kind of a situation.” Id. (emphasis added). Unfortunately, pursuant to the majority opinion, Arkansas will fill the gap in the case law as the only state in which a court chooses to ignore a legislative enactment changing the guidelines for implementation of the policy of the law between two appeals both of which were grounded upon the public policy as established by the legislature.

Applying the doctrine of law of the case to the case now on review forces an absurd result that is contrary to the case law of other jurisdictions. In the first appeal of this case, we determined that the trial court had erred in dismissing Mrs. Jackson’s cause of action against Cadillac Cowboy pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure. Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999) Jackson I). After reviewing several regulatory statutes, we determined that the legislature intended to reverse at least thirty-four years of judicial interpretation of the common law and to establish a cause of action for negligence which could be pursued by Mrs. Jackson against Cadillac Cowboy. Id. Based upon these regulatory statutes, we concluded that a vendor licensed to serve alcoholic beverages could be subjected to civil liability for negligence when that sale was to an intoxicated person who then causes injury to a third party. Id. After reaching this conclusion, we declined to specifically articulate standards or guidelines for pursing the of cause of action. Id. Indeed, the matter before us for decision in Jackson I was an Ark. R. Civ. P. 12(b)(6) motion testing only whether such a cause of action had been created by regulatory statutes adopted by the legislature.

Approximately one month after our decision in Jackson I, the General Assembly enacted Act 1596 of 1999. The Act, which was codified at Ark. Code Ann. § 16-126-101, et seq. (Supp. 2001), stated that it intended to clarify and establish the legislative intent regarding the sale of alcoholic beverages as addressed by our court in Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997) and Jackson I. Act 1596 legislatively identified a civil cause of action that may be brought against a retailer who knowingly sells alcoholic beverages to a person who is clearly intoxicated when that sale is the proximate cause of injuries to a third person.

Act 1596 was the General Assembly’s response to our interpretation of its regulatory statutes, and its attempt to clarify and mandate guidelines and procedures to be followed in such cases. Specifically, the General Assembly, acting within its legislative powers, chose to specify a framework for the cause of action articulated by us in Jackson I on the basis of regulatory statutes previously adopted by the legislature. Act 1596 expressed a change in the regulations and guidelines for implementation of the policy of the law as established by the legislature for the State of Arkansas. For us to thereafter refuse to apply the legislative directives is violative of the principles of separation of powers. By applying the law-of-the-case doctrine to the facts of this case, and ignoring the subsequent legislative enactment, we are acting as lawmakers instead of interpreters of the law.

I respectfully dissent.

I am authorized to state that Justice CORBIN joins in this dissent.

       The Arkansas Code Revision Commission is not authorized to change in “substance or meaning . . . any Act of the General Assembly.” See Ark. Code Ann. § 1-2-303(d)(1) (Supp. 2001).

       In urging reversal of this case based upon arguments not made and authority not cited by Cadillac Cowboy, the dissenting opinion completely ignores our basic principles of appellate review.

       Interrogatory No. 1 read as follows:
      Do you find from a preponderance of the evidence that there was negligence upon the part of Kevin Holliday which was a proximate cause of any damages to Plaintiffs?
      Interrogatory No. 2 read as follows:
      Do you find from a preponderance of the evidence that diere was negligence upon the part of Cadillac Cowboy, Inc. which was a proximate cause of any damages to Plaintiffs?


source: Caselaw Access Project

author: A NNABELLE CLINTON IMBER, Justice.

license: Public Domain

text:
    PREMIUM AIRCRAFT PARTS, LLC, and Christopher Roger Baker v. The CIRCUIT COURT of CARROLL COUNTY; The Honorable Alan D. Epley, Judge; Performance Aircraft Parts, Inc., and Performance Aircraft Power Plants, Inc.
    01-888
    69 S.W.3d 849
    Supreme Court of Arkansas
    Opinion delivered March 14, 2002

      Hardin, Jesson & Terry, PLC, by: Robert M. Honea, for petitioners.

      Vowell & Atchley, by Russell C. Atchley, PA., for respondents.
   A NNABELLE CLINTON IMBER, Justice.

A writ of prohibition is sought to prohibit the Carroll County Circuit Court from proceeding in connection with an action brought by Performance Aircraft Parts, Inc., and Performance Aircraft Power Plants, Inc., against Premium Aircraft Parts, LLC, and Christopher Baker. In support of the petition, Premium and Baker argue that Performance may not bring an action for misappropriation of trade secrets, dilution of trade name, or breach of fiduciary duty in the county of its residence pursuant to Ark. Code Ann. § 16-60-113(a) (1987). We agree and grant the writ.

On March 27, 2001, Performance filed a complaint in Carroll County Chancery Court alleging that Premium, a Texas limited liability company with its principal place of business in Sebastian County, and Baker, a resident of Sebastian County, had misappropriated trade secrets in the form of customer lists and vendor fists, and that Premium’s use of the trade name “P.A.P., Inc.” was likely (1) to dilute the distinctive quality of the trade name and (2) to cause injury to the businesses and reputation of Performance. The complaint also alleged that Baker had breached his fiduciary duty to Performance and. its shareholders. Baker was terminated as an employee of Performance on or about March 2, 2001. Shortly thereafter, he and co-defendant William DeArman, a resident of Texas, formed Premium, which is a competitor of Performance in the purchase and sale of aircraft parts. In its prayer for relief, Performance seeks compensatory damages and the issuance of a temporary restraining order enjoining Premium and Baker from using Performance’s customer fists and vendor fists, and enjoining Premium from using the trade name “P.A.P., Inc.,” and certain telephone numbers.

The petitioners and DeArman moved to dismiss on the basis of improper venue, contending that they are not residents of Carroll County, that they were not served there, and that there is no basis under the governing venue statute, Ark. Code. Ann. § 16-60-116 (1987), for laying venue in Carroll County. The motion to dismiss was granted as to the only cause of action against DeArman. The circuit court, however, denied the motion as to Premium and Baker, finding that “the Plaintiffs’ other causes of action assert claims for conversion of personal property within the meaning of A.C.A. § 16-60-113,” and concluding that venue is proper in Carroll County as to the claims asserted by “the Plaintiffs’ against the separate Defendant Premium Aircraft Parts, LLC, and Christopher Baker as Carroll County is the residence of the Plaintiffs for venue purposes.”

The petitioners next filed a petition for a writ of prohibition in this court, contending that venue was not proper in Carroll County. In response, Performance asserts that its action against the petitioners should be allowed to remain in Carroll County pursuant to Ark. Code Ann. § 16-60-113(a), and the writ should be denied.

A writ of prohibition is an original action in this court under which we may consider the issue of whether venue is proper in the Carroll County Circuit Court. In Willis v. Circuit Court of Phillips County, 342 Ark. 128, 27 S.W.3d 372 (2000) (per curiam), we stated the requirements for a writ of prohibition:

A writ of prohibition is extraordinary relief which is appropriate only when the trial court is wholly without jurisdiction. The writ is appropriate only when there is no other remedy, such as an appeal, available. When deciding whether prohibition will lie, we confine our review to the pleadings in the case.

Id. at 131, 27 S.W.3d at 374 (citations omitted). Where the issue of the writ of prohibition alleges improper venue, this court will grant the writ only when there are no disputed facts regarding venue. Henderson Specialties Inc. v. Boone County Circuit Court, 334 Ark. 111, 971 S.W.2d 234 (1998). Furthermore, we will look only to the pleadings to determine if a complaint lacks sufficient facts to support venue, and we ascertain the character of the action and the primary right asserted from the face of the complaint. Id.

In Quinney v. Pittman, 320 Ark. 177, 183, 895 S.W.2d 538, 541 (1995), we stated that “[i]t is our fundamental duty, of course, to give effect to the legislative purpose set by the venue statutes.” The two venue statutes at issue are sections 16-60-113(a) and 16-60-116(a). Section 16-60-113(a) is the specific venue statute for actions for damages to personal property by wrongful or negligent action. Specifically, it provides:

(a) Any action for damages to personal property by wrongful or negligent act, whether arising from contract, tort, or conversion of personal property, may be brought either in the county where the damage occurred, or in the county where the property was converted, or in the county of residence of the person who was the owner of the property at the time the cause of action arose.

Ark. Code Ann. § 16-60-113(a) (1987). Section 16-60-116(a) governs other actions and provides:- “(a) Every other action may be brought in any county in which the defendant, or one (1) of several defendants, resides or is summoned.” Ark. Code Ann. § 16-60-116(a) (1987).

This court reviews issues of statutory construction de novo, as it is for this court to decide what a statute means. Stephens v. Arkansas School for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Stephens v. Arkansas School for the Blind, supra. The basic rule of statutory construction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. If the language of a statute is unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Id.

Section 16-60-113(a) first identifies the type of action and then specifies where venue is proper. The claim must state a cause of “action for damages to personal property by wrongful or negligent act.” The cause of action may arise from “contract, tort, or conversion of personal property.” If these requirements are met, venue is proper in any of the following counties: the county where the damage occurred; the county where the property was converted; or the county in which the plaintiff resides.

Section 16-60-113(a) fails, however, to specify the type of damages or the type of personal property that must be the subject of the action. It, therefore, falls to this court to construe the phrase “damages to personal property.” Where the meaning of a statutory phrase or term is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Ford v. Keith, supra. A review of the history of the statute and our case law reveals that there must be physical damage to tangible personal property.

Section 16-60-113(a) traces its origins to Act 314 of 1939, the Venue Act, which permitted an action for personal injury or wrongful death to be filed in the county where the accident occurred or in the county where the person injured or killed resided at the time of the injury. FirstSouth, P.A. v. Yates, 286 Ark. 82, 689 S.W.2d 532 (1985). The Venue Act had a defect in that a plaintiff might have to sue for personal injuries in one of two counties and sue for damages to the car in yet a third county where the defendant resided. Id. The legislature corrected that defect by Act 182 of 1947 that permitted an action for damages to personal property by wrongful or negligent act to be brought in either the county where the accident occurred or in the county where the owner of the property resided at the time of the accident. Act 182 of 1947. In 1952, we held that the 1947 amendments did not provide for venue where the action was based on conversion of personal property. Terry v. Plunkett-Jarrell Grocer Co., 220 Ark. 3, 246 S.W.2d 415 (1952). Twenty-five years later, the legislature amended the venue statute to include conversion of personal property. Act 830 of 1977. After the 1977 amendments, we held that venue did not lie where the action arose out of a contract and did not involve an accident or violence or a conversion. Hooper v. Zajac, 275 Ark. 5, 627 S.W.2d 2 (1982). See also Beatty v. Ponder, 278 Ark. 41, 642 S.W.2d 891 (1982). In 1983, the legislature again amended the statute to extend the reference to wrongful or negligent acts by the addition of “whether arising from contract, tort, or conversion,” and to substitute the words “where the damage occurred” for the phrase “where the accident occurred.” Act 642 of 1983.

Since 1983, three decisions by this court have addressed the type of damage and the type of personal property contemplated under section 16-60-113(a). In FirstSouth, P.A. v. Yates, the complaint alleged that FirstSouth misrepresented the Sundance project as a new development when in fact the loan was to restructure an existing development. The complaint also alleged that FirstSouth negligendy failed to investigate the guarantor’s financial statement and the appraisal of the Sundance development. FirstSouth, P.A. v. Yates, 286 Ark. 82, 689 S.W.2d 532 (1985). This court stated that since 1947, “the reference to actions ‘for damages to personal property by wrongful or negligent act’ has meant a physical damage to tangible property, because the purpose of the statute was to permit actions for that kind of damage to be joined with actions for personal injury and wrongful death.” Id. at 86, 689 S.W.2d at 534 (emphasis added). Furthermore, the amendments to the venue statute “carry no implication that injury to intangible property or the sustaining of an economic loss is being brought within the legislative intent.” Id. Because there was no physical damage to tangible personal property in FirstSouth, venue was not proper under Ark. Stats. Ann. § 27-611, now codified at Ark. Code Ann. § 16-60-113(a). Id.

In Wilson-Pugh, Inc. v. Taylor, 289 Ark. 102, 709 S.W.2d 93 (1986), the issue was “whether the holder of a security interest in a crop may bring an action for conversion of that interest in the county of his residence pursuant to Ark. Stat. Ann. 27-611.” Id. at 103, 709 S.W.2d at 93. This court noted that “the opening words of the statute, ‘[a]ny action for damages to personal property . . .’ had not been changed for . . . thirty-nine years.” Id. at 104, 709 S.W.2d at 94. We reiterated what this court said in the FirstSouth case: “[I]t was not the intent of the General Assembly to permit a plaintiff alleging an injury to an intangible, or an economic injury, to bring it in his home county . . . the statute extended venue . . . only when there was a statement of’physical damage to tangible property.’” Id.

In Henderson Specialties Inc. v. Boone County Circuit Court, supra, we considered whether venue was proper in the county where the plaintiff resided for a claim of negligent construction of improvements to a mill. Based on an analysis of the pleadings, we determined that because plaintiff pleaded that the negligent construction resulted in damage to the original mill, the action sounded primarily in tort resulting in physical damage to tangible property. Once again, we noted that “since 1947, the reference to personal property has meant physical damage to tangible property, as we have here.” Id. at 117, 971 S.W.2d at 237 (emphasis in original). Fifty-five years after its original enactment, section 16-60-113(a) continues to use the same opening words, “[a]ny action for damages to personal property,” and our case law has consistently construed that language to extend venue to the county where the owner of the property resides only when an action states a claim for physical damage to tangible personal property.

In this case, we examine the face of the complaint to determine whether it states sufficient facts to establish venue under section 16-60-113(a). Paragraph No. 1 identifies the residence of the parties and asserts that (a) the plaintiff companies (Performance) are Arkansas corporations, and each company has its principal place of business in Carroll County; (b) the defendant Premium is a Texas LLC registered to do business in Arkansas, with its primary place of business in Sebastian County; (c) the defendant Baker is a resident of Sebastian County; and (d) the defendant DeArman is a resident of Texas. Because no defendant is a resident of Carroll County, venue would not be proper in Carroll County under section 16-60-116(a), which limits venue to counties in which a defendant resides or is summoned. For venue to be proper, the character and nature of the complaint must meet the requirements of section 16-60-113(a), i.e., there must be a statement of “physical damage to tangible property.” Therefore, we continue our examination of the complaint to ascertain if it states facts sufficient to support venue in Carroll County.

Paragraph Nos. 2 through 6 contain a description of the corporate history of the Performance companies, as well as the positions held by the parties in those companies. Paragraph No. 7 alleges that shortly after defendant Baker’s employment at Performance was terminated, he and defendant DeArman formed a limited liability company in Texas for the purpose of competing with Performance. In Paragraph Nos. 8 through 12, Performance alleges misappropriation of trade secrets in the form of vender and customer lists, and Performance seeks a temporary restraining order and compensatory damages. In Paragraph Nos. 13 through 16, Performance alleges dilution of the trade name, “P.A.P., Inc.,” and unfair competition. Included in this count is a request for compensatory damages and a temporary order enjoining the defendant Premium from using the “P.A.P., Inc.” trade name. Finally, in Paragraph Nos. 17 through 23, Performance alleges breach of fiduciary duty on the part of the defendant Baker, and Performance seeks compensatory damages and a temporary order enjoining the defendant Premium from using certain telephone numbers.

Based upon the above in-depth review of the allegations contained in the complaint filed by Performance in Carroll County, it is clear that Performance has not asserted any physical damage to personal property, but instead claims an economic injury. This court has consistendy held that an economic injury alone is not sufficient to establish venue under section 16-60-113(a). Henderson Specialties Inc. v. Boone County Circuit Court, supra; Wilson-Pugh, Inc. v. Taylor, supra; FirstSouth, P.A. v. Yates, supra. Performance has failed to plead sufficient facts in its complaint to establish that it has suffered physical damage to tangible personal property as required by the statute. Moreover, the petitioners are not residents of Carroll County, and they were not served there. Accordingly, venue in Carroll County is improper, and the Carroll County Circuit Court is wholly without jurisdiction.

Writ of prohibition granted.

       Though the style of the petition is also couched in terms of an individual circuit judge, prohibition lies to the circuit court and not to a judge. Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997) (citing Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992)).

       Pursuant to the passage of Arkansas Constitutional Amendment 80, which went into effect on July 1, 2001, our state courts are no longer separated into chancery and circuit courts. Rather, these courts have merged and now carry only the designation of “circuit court.” Therefore, although the trial court in this case was originally a chancery court, it will herein be referred to as the circuit court.

       Act 182 of 1947 provided:
      Any action for damages to personal property by wrongful or negligent act may be brought either in the County where the accident occurred which caused the damage or in the county of the residence of the person who was the owner of the property at the time the cause of action arose.

       Act 830 of 1977 provided:
      Any action for damages to personal property by wrongful or negligent act, or for the conversion of personal property, may be brought either in the county where the accident occurred which caused the damage, or in the county where the property was converted, or in the county of the residence of the person who was the owner of the property at the time the cause of action arose.

       Act 642 of 1983 is currently codified at Ark. Code Ann. § 16-60-113(a) (1987), and provides:
      Any action for damages to personal property by wrongful or negligent act, whether arising from contract, tort, or conversion of personal property, may be brought either in the county where the damage occurred, or in the county where the property was converted, or in the county of residence of the person who was the owner of the property at the time the cause of action arose.
      The most recent amendment by the legislature added section (b) providing alternative venues for actions based on fraud. See 1985 Ark. Acts 921, codified at Ark. Code Ann. § 16-60-113(b) (1987).


author: R AY THORNTON, Justice.

text:
    Marcus THREADGILL v. STATE of Arkansas
    CR 01-785
    69 S.W.3d 423
    Supreme Court of Arkansas
    Opinion delivered March 14, 2002

      Arkansas Public Defender Commission, by: Latrece Gray and Lott Rolfe, for appellant.

      Mark Pryor, Att’y Gen., by: John Ray White, Deputy Att’y Gen., for appellee.
   R AY THORNTON, Justice.

Appellant, Marcus Threadgill, was convicted in Miller County Circuit Court of first-degree murder and sentenced to thirty-three years’ imprisonment. Appellant appealed his conviction to the court of appeals, asserting two arguments: (1) that the trial court erred when it allowed the introduction of extrinsic evidence to impeach a witness who had admitted that she lied when she gave a statement to police, and (2) that the trial court erred in admitting the eyewitness testimony of Christopher Parker. The court of appeals affirmed the conviction. See Threadgill v. State, 74 Ark. App. 301, 47 S.W.3d 304 (2001).

We granted appellant’s petition for review, pursuant to Ark. Sup. Ct. R. l-2(e)(ii). When we grant a petition for review of a decision from the court of appeals, we review the findings of the trial court as though the appeal had originally been filed with this court. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). We find no reversible error, and we affirm the trial court for somewhat different reasons than those relied upon by the court of appeals.

Appellant does not challenge the sufficiency of the evidence to support the conviction, so our recitation of the facts will be concise. Appellant stipulated that he was in the car being driven by the victim, Larry Roberson, at the time the victim was shot in the back of his head. Christopher Parker testified that he was riding in the passenger seat and that the appellant, who was in the back seat, shot the victim. Forensic evidence showed that the victim, while seated in the driver’s seat, was killed by a bullet that entered the back of his head and exited toward the steering wheel.

Witness for the State, Tequila Hall, made a taped statement to the police where she stated that she overheard the appellant say that he “shot that dude.” At trial, Ms. Hall testified that she did not remember overhearing such a statement by appellant; further that she did not remember making any statement to the officers; and that if she did make such a statement, she was lying, in an effort to get the police to leave her alone. The trial court ruled that the taped statements (exhibits 25 and 26) were admissible to impeach the witness on the basis of her prior inconsistent statements.

Appellant’s first point on appeal asserts that the trial court committed reversible error in allowing the use of Hall’s earlier inconsistent statements to improperly impeach a witness. Before reaching the merits of this contention, we note that the State argues that no proper objection to the use of this earlier statement was timely made by appellant.

We will not consider an argument raised for the first time on appeal. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). To preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise the court of the particular error alleged. Id. Furthermore, the basis for objection on appeal must be the same basis for objection as at the trial court level. Id.

In the case before us, appellant objected to the admission of Tequila Hall’s taped statement, exhibit 25, on the basis of Ark. R. Evid. 613(b). We review allegations of evidentiary errors under the abuse-of-discretion standard. Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998). The trial court has broad discretion in its evidentiary rulings; hence, the trial court’s findings will not be disturbed on appeal unless there has been a manifest abuse of discretion. Id.

Arkansas Rule of Evidence 613(b) states:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

Appellee contends that at trial the basis for objection was Ark. R. Evid. 613(b), and therefore any other objection the Appellant may assert upon review has not been preserved. Appellant agrees that the objection was based on 613(b), but contends further that the objection asserted upon review, is based upon an interpretation of Rule 613(b) as established by case law. We agree that the issue of the admissibility of Hall’s first taped statement, exhibit 25, was properly raised for our review by the appellant’s objection on the basis of Rule 613(b) and we turn to the merits of the trial court’s ruling.

Rule 613 of the Arkansas Rules of Evidence permits extrinsic evidence of prior inconsistent statements of a witness for the purpose of impeachment if the witness is afforded the opportunity to explain or deny the statement, and does not admit having made it, and the other party is afforded the opportunity to interrogate the witness on that statement. Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001). If the witness, however, admits making the prior inconsistent statement, then extrinsic evidence of that statement is not admissible. Id; Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988); Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983). Here, Ms. Hall did not unequivocally admit that her prior statement to the police was a lie. She testified that she could not remember her earlier testimony and then stated that she did not remember making the statement, or, that if she made the statement it was a lie. The following colloquy occurred:

STATE’S ATTORNEY: Okay. But you don’t remember telling any of those officers that this defendant told you he shot that dude?
Ms. Hall: No. If I said it, it’s not true.
State’s attorney: Okay. Why would you go to the police and tell them something that wasn’t true?
Ms. HALL: Because at the time I was scared. I had, I’ve been in trouble myself. I had a lot of stuff on me, and I figured I would get in trouble, or they might use that against me or somethin’.

Her testimony left doubt as to whether she admitted that the earlier statement was a lie, as required by the case law interpreting Rule 613(b). Under the circumstances, the trial court was not in error, nor did it abuse its discretion in admitting exhibit 25 for purposes of impeachment of her own testimony at trial. On that point, we affirm the trial court.

The trial court also admitted exhibit 26, Tequila Hall’s taped statement from May 14, 1998. However, the issue of admissibility of the statement pursuant to Rule 613(b) was raised for the first time on appeal, and as previously noted, we have held that “[t]he supreme court will not consider an argument raised for the first time on appeal; to preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise the court of the particular error alleged.” Ayers, supra.

At the trial, the Appellant objected to the second taped statement of Ms. Hall, exhibit 26, as “cumulative and unnecessary” and on appeal sought to make two new objections: first, on the basis of 613(b), exactly as presented in regard to the first taped statement, and second, that the witness had already admitted this particular inconsistent statement. Appellee argues that the Appellant did not make a Rule 613(b) objection to the second tape, nor did he make an objection based on the grounds that the witness had already admitted this particular inconsistent statement. Indeed, the colloquy reveals that neither ground was raised:

Mr. Rolfe: I would object. It’s cumulative and unnecessary.
The COURT: This is offered for what purpose, Mr. Haltom?
Mr. Haltom: The same purpose. That she made statements to the police saying that Mr. Threadgill killed Mr. Roberson on the different occasions.
The COURT: Separate statements to law enforcement?
Mr. Haltom: Yes, sir.
Mr. Rolfe: Same statement, just different occasions.
Mr. HALTOM: Well, if they want to stipulate to the statements made, we don’t need to play the tape. I mean, otherwise, it’s for impeachment. Prior inconsistent statements. When you have the defendant telling the witness they killed somebody, that’s pretty important for this trial.
Mr. Rolfe: Judge, I’ve raised my objection already.
Mr. Haltom: We’ll stand on our contention that it’s relevant. Very relevant.
The COURT: The objection is overruled. Two statements are not so cumulative as to waste the Court’s time. You may play it.

Clearly, the trial court understood the objection as being based on efficiency and avoiding redundant testimony, and appellant did not clarify his objection, impliedly assenting to the court’s interpretation. On appeal, appellant based his new argument on Rule 613(b) and asserts that the taped statement was offered for impeachment purposes, not to refresh memory. This is a new objection to exhibit 26 that was not raised below, and therefore we do not consider it.

The State agreed with appellant that the issue of Sabrina Maxwell Herron’s testimony was preserved for appeal, and the objection based on hearsay and improper impeachment was timely. Though allowing Ms. Herron to testify to Ms. Hall’s prior statement to her notwithstanding an objection that the testimony was hearsay, the trial court did not abuse its discretion. The colloquy gives the context of the objection:

Mr. HALTOM: Did you ever have an opportunity around 1998, to have a conversation with Tequila Hall in regard to Mr. Roberson’s death?
MS. Heron: Yes, sir.
Mr. ROLFE: Your Honor, at this time, I would object as to hearsay.
The COURT: Offered for impeachment, I assume?
Mr. HALTOM: Yes, sir.
Mr. Jones: Yes, sir.
THE COURT: Overruled.

Abuse of discretion is a high threshold that does not simply require error in the trial court’s decision, but requires that the trial court act improvidently, thoughtlessly, or without due consideration. Nazarenko v. CTI Trucking Co., Inc, 313 Ark. 570, 856 S.W.2d 869 (1993). Here, the court erred, but we cannot say that the trial court’s action in admitting a statement for the purpose of impeachment was improvident, thoughtless, or without due consideration. We conclude that the trial court’s actions do not require reversal as an abuse of its discretion.

Next, we address the issue of whether the cumulative prejudicial effect of the exhibits and Ms. Herron’s testimony was enough to constitute reversal. The court of appeals has recently refused to find prejudicial error when the evidence in question was merely cumulative to other evidence admitted at trial. Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611 (1999). Furthermore, prejudice is not presumed. Llewellyn v. State, 4 Ark. App. 326, 630S.W.2d 555 (1982). The appellate court will not reverse absent a showing of prejudice. Id.

Ms. Herron’s testimony was cumulative of what had already been presented in her first recorded statement. In Camp, the court of appeals specifically held that merely cumulative evidence was not prejudicial. We agree and adopt the principle articulated by the Court of Appeals in Camp, supra, and in Llewellen, supra. Appellant in this case is required to show prejudice, but does not support that required showing. Appellant simply argues that all three items of extrinsic evidence were unnecessary and cumulative, and that if they had all been excluded, the State would have been left with very little evidence. Appellant speculates that he might have received a directed verdict or less than a thirty-three-year sentence. Appellant’s objection, however, to the first recorded statement as being cumulative in nature was not raised before the trial court, and therefore he cannot now raise that argument on appeal. As we have already pointed out, Appellant’s objection to the second recorded statement was not preserved for appeal. Finally, we note that Sabrina Maxwell Herron’s testimony was repetitive of exhibit 25, but as explained in Camp, supra, merely cumulative evidence is not prejudicial.

We now turn to the remaining issue on appeal: whether the trial court abused its discretion by refusing to exclude the testimony of Christopher Parker as a sanction against the prosecutor for violating discovery and for engaging in prosecutorial misconduct. The trial court refused to exclude Christopher Parker’s testimony, but rather afforded the appellant wide latitude in cross-examination of the police officers to remedy discovery violations. The State argues that there was no abuse of discretion because the appellant presented no evidence of bad faith on the part of the prosecutor, as required to prove prosecutorial misconduct, nor did appellant present evidence of prejudice.

With respect to a similar argument relating to a failure to disclose the intention to call an expert witness, we have held that the appellant must show not only bad faith on the part of the prosecutor, but also that the breach of duty to disclose caused prejudice severe enough to undermine confidence in the outcome of the trial. Nicholson v. State, 319 Ark. 566, 892 S.W.2d 507 (1995). Likewise, we have held that the defendant must show that any misconduct done by the prosecutor was in bad faith, and that the prosecutor’s actions caused prejudice to the defendant before the double jeopardy bar could be invoked. Timmons v. State, 290 Ark. 121, 717 S.W.2d 208 (1986). Following the Eighth Circuit holding in U.S. v. Martin, 561 F.2d 135 (8th Cir. 1977), we held that prosecutorial misconduct motivated by bad faith that caused prejudice to the defendant enough to merit a mistrial would bar retrial. Timmons, supra.

In several cases since then, we have required a showing of bad faith on the part of the prosecutor before the court would require sanctions. Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997) (holding that double jeopardy was not invoked because there was no prejudice sufficient to cause a mistrial based on the prosecutor’s bad-faith misconduct); Jackson v. State, 322 Ark. 710, 911 S.W.2d 578 (1995) (The appellant asserted that the state prosecutor engaged in bad faith misconduct with the intention of goading Jackson into moving for a mistrial, and the trial court found no bad faith and affirmed.) Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990) (The appellant argued that the prosecutor committed bad faith misconduct on three occasions: 1) The prosecutor intended to inflame the jury by referring to the race of the victims; 2) The prosecutor implied that the appellant fabricated evidence of an abusive upbringing; 3) The prosecutor objected during a defense witness’s testimony concerning mitigating evidence. The trial court refused to grant a mistrial and we affirmed, finding no prejudice on the first argument and no bad faith on the part of the prosecutor on the second two arguments.)

In the present case, there was no showing by appellant of bad faith involved in the prosecutor’s loss of two earlier recorded statements from Christopher Parker that, as a result of being lost, were unavailable for discovery. Not only was no showing of bad faith made, but also there was no showing of any prejudice resulting from the unavailability of the tapes. In these circumstances, we cannot say that the trial court’s decision to sanction the violation of discovery by means of allowing wide latitude in cross-examination of the police officers was an abuse of discretion.

Accordingly, we affirm.

Corbin, J. not participating.


author: J IM Hannah, Justice.

text:
    William Lee NIELSEN v. Deborah BERGER-NIELSEN and Joe Benson
    01-997
    69 S.W.3d 414
    Supreme Court of Arkansas
    Opinion delivered March 14, 2002

      Harry McDermott, for appellant.

      Taylor Law Firm, by: Terry D. Harper and Chris D. Mitchell, for appellee Deborah Berger-Nielsen.

      Benson, Robinson & Wood, RL.C., by: Joe P. Robinson, for appellee Joe Benson.
   J IM Hannah, Justice.

Appellant William Lee Nielsen (“William”) appeals the Washington County Circuit Court’s dismissal of his complaints against Appellee Joe Benson and Appellee Deborah Berger-Nielsen (“Deborah”).

On February 14, 2000, Deborah filed for divorce from William. Deborah’s attorney was Benson. William filed a general answer on March 14, 2000, and then counterclaimed against Deborah on September 11, 2000, seeking the divorce in his favor and for division of the marital property. Deborah filed her answer to the counterclaim on September 20, 2000.

Around September 2000, the parties began negotiations for a property settlement in the divorce action. Documents in the record indicate that Benson and William’s attorney, Harry McDermott, spoke on the phone on September 12, 2000, regarding the terms of the property settlement, to which Benson followed up by letter on September 15, 2000, laying out the general terms of the settlement agreement. This letter stated:

This confirms our phone call of September 12, 2000 wherein I advised that my client, Deborah Nielsen, had agreed to the terms of your client’s settlement proposal in this divorce matter. Mr. Berger is transferring $61,600 to my trust account which will be dispersed upon signature of the Property Settlement Agreement. Mrs. Nielsen will present a tide to the ‘91 Isuzu Trooper at that time. I will provide you a Quitclaim Deed for Bill’s signature of the marital residence and the Property Setdement Agreement once drafted, however, I need verification of Bill’s income to complete the support clause. Accordingly, please provide me copies of his most recent payroll stubs. Also, please enter an Order of Dismissal of the partition action which you filed against Mr. and Mrs. Berger and Deborah.

On the same day Benson wrote this letter to McDermott, he wrote a letter to the chancery court noting that the parties had reached a settlement resolving the issues and, therefore, the foil-day trial set for September 22, 2000, was not needed.

Five days after Benson wrote these letters, he filed a motion on September 20, 2000, to withdraw as Deborah’s counsel. In the motion, Benson cited as his reason for withdrawal as “irreconcilable differences between the Plaintiff, Deborah Berger-Nielsen and her attorney, Joe Benson regarding the terms of a proposed property settlement agreement.” The trial court granted Benson’s motion to withdraw on October 4, 2000.

On November 14, 2000, Attorney Terry Harper entered his appearance as Deborah’s attorney. Approximately one month later on December 8, 2000, William filed a motion to compel settlement and for a temporary hearing, claiming that a settlement agreement had been reached, and asking the court to compel action on that settlement. He attached two exhibits to this motion: a written copy of his basic terms of the settlement agreement and Benson’s letter to McDermott on September 15, 2000. Deborah responded to this motion on December 18, 2000. The trial court set a hearing on all pending motions for February 7, 2001.

Prior to the hearing, William attempted to subpoena Benson’s appearance at the hearing, presumably seeking testimony that an oral property settlement agreement had been reached by the parties. On January 30, 2001, Benson filed a motion on his own behalf to quash the subpoena claiming that the testimony sought by William was protected by attorney-client privilege. The trial court heard the motion to quash on February 5, 2001. At the hearing, the trial court determined that Deborah did not intend to waive the attorney-client privilege; therefore, the court granted Benson’s motion to quash the subpoena. An order was entered to this effect on February 13, 2001.

William filed a brief in support of his motion to compel the settlement on February 6, 2001. In this brief, William argued that Arkansas law indicates that an attorney can authorize a settlement for his or her client, and that Benson clearly authorized this settlement by letter and over the phone for his client, Deborah. Following this filing, William filed an amended counterclaim and third-party complaint against Deborah and, for the first time, against Benson as a third-party defendant. He included a claim for breach of contract against Deborah, claiming that she agreed to the property settlement agreement and then withdrew this agreement. Fie filed his third-party complaint against Benson on a theory of a “breach of an implied promise” to William representing that he had the authority to contractually bind Deborah to the settlement agreement. William concluded his amended pleading by stating:

Wherefore, premise considered, Bill Nielsen, defendant/ counterclaimant, prays that the complaint of Deborah Berger-Nielsen be dismissed, he be granted a divorce from the defendant as well as awarded his attorney’s fees and court costs, the marital property of the parties be divided by the Court pursuant to the property settlement agreement attached and for all other relief to which he may be entitled including his additional attorney’s fees and cost direcdy caused by the plaintiffs breach of the property settlement agreement.
In the alternative, Bill Nielsen, defendant/counterclaimant, prays that the complaint of Deborah Berger-Nielsen be dismissed, he be granted a divorce from the defendant as well as payment of his attorney’s fees and court costs, the marital property of the parties be divided by the Court, and for all other relief to which he may be entitled. Plaintiff further prays for damages in excess of $1,000 against third party defendant Joe Benson as well as for all his attorney’s fees and costs resulting from the plaintiffs failure to affirm or agree to the settlement agreement agreed to by third party defendant Joe Benson on her behalf and for all other relief to which he may be entitled.

William attached to this complaint the exhibit of his proposed property settlement agreement and a copy of Benson’s September 15, 2000, letter.

On February 21, 2001, Benson filed a motion and supporting brief to dismiss Nielsen’s third-party complaint, noting that the complaint was not timely filed, that a settlement that deals with real property must be in writing and signed by the parties to be bound according to the statute of frauds, that Benson was not in privity of contract with Deborah or William, and that the third-party complaint fails to state facts upon which relief could be granted. Deborah filed her answer to William's amended counterclaim on February 22, 2001. William filed his response to the motion to dismiss on February 28, 2001, claiming that he amended his complaint to include claims for breach of contract against Deborah, breach of duty against Benson, and that one of them is liable for the failure to honor the proposed settlement agreement.

On March 7, 2001, the trial court held a hearing on Deborah’s and Benson’s motions to dismiss the third-party complaint against Benson and on William’s motion to compel discovery. The court first heard arguments on the motion to dismiss, and concluded that because the property settlement dealt with real property, it had to have been in writing to be binding on the principals as well as on Benson, an agent. Because it was not, there was no contract and, therefore, the third-party complaint was meritless. Following the hearing, William filed a motion for findings of fact and conclusions of law on the dismissal, and set out his claims in a letter to the court filed on March 20, 2001. In that letter, William indicated that he wanted the findings of fact and conclusions of law in -writing because he planned to immediately appeal that order, in that he had “nonsuited his amended claim against the plaintiff,” presumably meaning he had dismissed his counterclaim against Deborah. The trial court filed its order on March 20, 2001, noting that it had taken into account the “[mjotion, representations of counsel, and other facts and matters appearing before the Court” in deciding to dismiss William’s complaint against Benson. Specifically, the court found that William did not have a claim against Benson for breach of an implied contract because the settlement agreement had to be in writing and signed by the parties to that contract because it transferred real property. Furthermore, the court found that the dismissal was pursuant to Ark. R. Civ. P. 12(b)(6) because William pled no fact holding Benson liable for a contract on which he was not in privity with the parties. The court also awarded attorney’s fees in the amount of $1,062.50 to Benson’s attorney.

Ultimately, William and Deborah reached a property settlement agreement and child-custody and support agreement filed on March 20, 2001. The parties’s divorce decree was also filed on March 20, 2001. William indicated at that time that he dismissed his counterclaim against Deborah, thus allowing her to proceed on her original divorce petition.

Although the divorce was finalized on March 20, 2001, the court considered William’s second motion to compel answers to interrogatories and for production of documents on March 30, 2001. The court ordered Deborah to produce certain documents by March 23, 2001, (although that was impossible by the date of the order), and ruled that no attorney’s fees were due for William’s pursuit of this motion. Following this on May 11, 2001, William filed a motion for an extension of time to file an appeal claiming that he did not find out about this order until May 10, 2001, and that too much time had passed to timely file an appeal. He also claimed that he had not discovered the March 20, 2001, order dismissing his third-party complaint against Benson, in which fees were awarded to Benson’s attorney, until May 10, 2001, as well. He noted that the time for appeal from both of these orders had passed. Deborah responded on May 25, 2001, and Benson joined in this response on May 29, 2001. On that same day, Benson filed a motion for Rule 11 sanctions against William’s attorney, Harry McDermott, claiming that the action against Benson was frivolous. A hearing on these motions was held on June 7, 2001. The court entered its order on June 14, 2001, finding that William had good cause to ask for the extension to file an appeal under Ark. R. App. P. — Civ. 4(b)(3), and allowed him until June 21, 2001, to file that appeal. The docket sheet also indicates that Benson’s Rule 11 motion was denied as filed on June 25, 2001. William filed his notice of appeal from the trial court’s March 20, 2001, and March 30, 2001, orders on June 18, 2001.

We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id.

While the trial court’s order indicates that the dismissal of William’s third-party complaint against Benson was under Ark. R. Civ. P. 12(b)(6), it is clear that the trial court took into account other pleadings, documents, and information when making its decision. As such, it is not a dismissal, but instead a summary judgment. Pursuant to Ark. R. Civ. P. 12(b) and (c), a motion to dismiss is converted to a motion for summary judgment when matters outside of the pleadings are presented to and not excluded by the court. Francis v. Francis, 343 Ark. 104, 31 S.W.3d 841 (2000); McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998); Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Ford v. Arkansas Game and Fish Comm’n, 335 Ark. 245, 979 S.W.2d 897 (1998); Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.

I. William’s Appeal against Deborah

Although William’s notice of appeal included both Deborah and Benson, his arguments on appeal include only his claim against Benson. In fact, he fails to direct any argument towards his appeal from the March 30, 2001, order entered by the trial court directing Deborah to comply with certain discovery requests. The trial court also denied attorney’s fees to William for pursuing those discovery requests. As such, because William fails to offer any argument or legal authority to support a claim against Deborah on appeal, we affirm the trial court’s ruling from that order. See Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001); Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000).

II. William’s Appeal against Benson

In William’s third-party complaint against Benson, he first alleged that Benson, acting with full authority and on behalf of Deborah, misrepresented orally and by letter that the case was settled under William’s terms that Deborah pay him $61,500 and, in return, he would sign a quit-claim deed to the house and real estate. However, William then alleged that when Deborah refused to honor the settlement agreement, Benson became personally hable because “he was not acting at the direction and control of the plaintiff and with specific authority to settle all of the parties’ property issues . . . even though at all times he represented he was.” As such, Benson “breached his implied promise to the defendant . . . that he had the specific authority to bind the plaintiff and was attempting to contractually bind the plaintiff to a settlement agreement . . . pursuant to her instructions.” William claimed damages in the amount of $1,000 plus attorney’s fees and costs “resulting from the plaintiffs failure to honor said agreement.” It should be noted that William never sued Benson for breach of contract in that he acknowledges that Benson did not have the authority to contract for Deborah. In addition, William never followed through on his breach of contract claim against Deborah — he nonsuited it — so there is no finding that there was a breach of contract here.

Although the trial court “dismissed” William’s claim against Benson because there was no written contract for the sale of property and Benson was not in privity of contract with William to be liable on the contract, we will only address this second finding by the trial court. We hold that Benson cannot be liable to William for this “breach of implied promise” claim under Ark. Code Ann. § 16-22-310, an attorney-immunity statute. Arkansas Code Annotated § 16-22-310, titled “Liability for civil damages,” states:

(a) No person licensed to practice law in Arkansas and no partnership or corporation of Arkansas licensed attorneys or any of its employees, partners, members, officers, or shareholders shall be hable to persons not in privity of contract with the person, partnership, or corporation for civil damages resulting from acts, omissions, decisions, or other conduct in connection with professional services performed by the person, partnership, or corporation, except for:
(1) Acts, omissions, decisions, or conduct that constitutes fraud or intentional misrepresentations; or
(2) Other acts, omissions, decisions, or conduct if the person, partnership, or corporation was aware that a primary intent of the client was for the professional services to benefit or influence the particular person bringing the action. For the purposes of this subdivision, if the person, partnership, or corporation:
(A) Identifies in writing to the client those persons who are intended to rely on the services, and
(B) Sends a copy of the writing or similar statement to those persons identified in the writing or statement, then the person, partnership, or corporation or any of its employees, partners, members, officers, or shareholders may be held hable only to the persons intended to so rely, in addition to those persons in privity of contract with the person, partnership, or corporation.
(b) This section shall apply only to acts, omissions, decisions, or other conduct in connection with professional services occurring or rendered on or after April 6, 1987.

This immunity statute for attorneys protects them from civil liability for actions they take during the course of their employment as an attorney. This court has held that “[t]he plain language of Ark. Code Ann. § 16-22-310 requires the plaintiff to have direct privity of contract with ‘the person, partnership, or corporation’ he or she is suing for legal malpractice.” McDonald v. Pettus, 337 Ark. 265, 271, 988 S.W.2d 9, 12 (1999). Similarly, this court has held that Ark. Code Ann. § 16-22-310 “enunciates the parameters for litigation by clients against attorneys[.]” Clark v. Ridgeway, 323 Ark. 378, 388, 914 S.W.2d 745, 750 (1996).

In Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001), the plaintiffs sued an attorney under a claim of negligent hiring and supervising of another attorney-employee who defrauded the plaintiffs in an adoption case. The attorney defendant argued in part that she was immune from suit under Ark. Code Ann. § 16-22-310 because the plaintiffs’s claims arose from a legal-malpractice action. The plaintiffs argued that Ark. Code Ann. § 16-22-310 provided immunity to attorneys only when they are sued for legal malpractice or professional negligence, and since that claim was neither, the attorney was not immune. This court agreed that the plain language of the provision demonstrates that the immunity provided is limited to suits based on conduct in connection with professional services rendered by the attorney. As such, because the claim was for negligent hiring and supervising of an employee, as opposed to malpractice in the adoption action itself, the attorney defendant was not immune under the statute.

In contrast, however, this court in McDonald, supra, found that a decedent’s attorney was not liable to the decedent’s children individually or as third-party beneficiaries of the estate for alleged negligence in the drafting of the decedent’s will. We determined that the children were not in privity of contract with the attorney and, thus, the attorney was immune from suit under Ark. Code Ann. § 16-22-310 for his alleged negligence in drafting the decedent’s will. This court stated:

The plain language of Ark. Code Ann. § 16-22-310 requires the plaintiff to have direct privity of contract with “the person, partnership, or corporation” he or she is suing for legal malpractice. Likewise, we have narrowly construed the privity requirement to require direct privity between the plaintiff and the attorney or entity to be held hable for legal malpractice. See Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996); Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993). In particular, in Clark we said that “the language of this section [Ark. Code Ann. § 16-22-310(a)] is precise and clear and reveals that the contract contemplated by the statute relates to a contract for professional services performed by the attorney for the client.” Clark, supra.

McDonald, 337 Ark. at 271-272. This court did, however, remand the case to the trial court for further proceedings in the tort and breach-of-contract claims filed by the personal representatives of the estate against the attorney. We did so because the personal representatives brought the claims on behalf of the decedent, because the estate “stood in the shoes” of the decedent, who was in privity of contract with the attorney.

These cases define the parameters of the statute by showing that an attorney may not be sued by a third party for his nonfraudulent acts committed during the course of his representation of his client because he was not in privity with the third party. This is what the trial court found here where the trial court determined that Benson was not in privity of contract with William and, thus, could not be liable to him for his professional dealings on that contract.

Regarding privity, William argues that general agency law in Arkansas allows this lawsuit. He cites the case of Hart v. Bridges, 30 Ark. App. 262, 786 S.W.2d 589 (1990), for the proposition that “Arkansas recognizes the liability of an agent for contracts created outside his authority for a disclosed principal.” In Hart, the court of appeals determined that a school principal was personally liable on a contract that he had a prospective teacher sign, despite the fact that the principal did not have the authority to hire the teacher without the school board’s approval. The teacher, relying on this signed contract, incurred debt by buying a car and other items, believing that he had a job. The school board, however, refused to hire the teacher. The teacher sued the school principal on a breach of contract claim, arguing that the principal was personally hable on the contract. While the court of appeals recognized that the statutes clearly indicate that only a school board can hire a teacher, and that the teacher was charged as knowing these laws, the court determined that Arkansas’s general agency law still bound the principal to the contract. The court of appeals stated:

Appellant is correct in his assertion that, generally, an agent who contracts in the name of his principal without authority, so that the principal is not bound, may be personally liable to the other contracting party. See Lasater v. Crutchfield, 92 Ark. 535, 538, 123 S.W 394, 395 (1909). In such cases, the law may imply a contract between the injured party and the agent upon the agent’s implied warranty of his authority. Dale v. Donaldson Lumber Co., 48 Ark. 188, 192, 2 S.W. 703, 704 (1886).

Hart, 30 Ark. App. at 268. Based on this general premise, the court of appeals reversed the trial court’s grant of summary judgment finding that questions of fact remained.

Hart is different from this case, however, for the specific reason that while the court of appeals held that the principal was subject to general agency provisions despite the statutes that stated that only the school board could approve a contract, here Benson, as an attorney, is specifically immune from liability absent fraud or intentional misrepresentation. In other words, there is a specific statute that protects Benson from liability here, whereas in Hart the principal had no such protection and was subject to general agency principles.

This conclusion, however, does not end the analysis because the lawyer-immunity statute contains two exceptions to the privity requirement. First, no privity is required for “[a]cts, omissions, decisions, or conduct that constitutes fraud or intentional misrepresentations.” Ark. Code Ann. § 16-22-310(a)(l). However, constructive fraud, for example, is not included in this exception because the exception is one for intentional acts. Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993). This section is clearly inapplicable because William did not assert fraud or intentional misrepresentations in his third-party complaint, but instead asserts an amorphous “breach of implied promise” claim, which necessarily had to arise from Benson’s conduct as Deborah’s attorney. Therefore, because Benson was only in privity of contract with Deborah for attorney services rendered in connection with her divorce claim, William cannot assert a claim against Benson without some showing of fraud or intentional misrepresentation, which he never alleges in this case.

In looking at the trial court’s order, the judge effectively applied the immunity statute by finding that there were no facts to show that Benson was in privity of contract with William. As such, regardless of general Arkansas agency law and in the complete absence of any allegations of intentional misrepresentation or fraud, Ark. Code Ann. § 16-22-310 applies to shield Benson in this lawsuit.

II. Attorney’s Fees

Finally, William argues that the trial court erred in awarding $1,062.50 in attorney’s fees to Benson. William, however, fails to provide any authority as to why this award was unwarranted. The failure to cite authority is sufficient reason to affirm the trial court’s ruling on this point. Middleton, supra; Womack, supra.

Affirm.

CORBIN, J., not participating.


author: P ER CURIAM.

text:
    CONCRETE CONSTRUCTION, INC. v. Judge Stephen P. SAWYER
    02-129
    69 S.W.3d 422
    Supreme Court of Arkansas
    Opinion delivered March 14, 2002

      Law Offices of Susan A. Fox, by: Susan A. Fox, for appellant.

      Mark Pryor, Att’y Gen., by: Jill Jones, Ass’t Att’y Gen., for appellee.
   P ER CURIAM.

On February 7, 2002, Concrete Construction, Inc., by its attorney, Susan A. Fox, filed a petition for writ of mandamus contending that the Honorable Stephen P. Sawyer, acting as Special Benton County Circuit Judge pursuant to Arkansas Supreme Court Administrative Order Number 1 — Special Judges, had failed to render a decision within a reasonable time after the case was tried.

The initial complaint in the underlying cause of action was filed on January 27, 1999. The case was tried to the court on June 1, 2000. The court took the case under advisement and has not issued a ruling as of this date. Counsel for the defendant in the underlying cause of action mailed a letter to Judge Sawyer on October 26, 2000, reminding the court of certain crucial facts established by the evidence. Counsel for the petitioner sent letters to Judge Sawyer on November 7, 2000, and September 11, 2001, requesting a ruling and has not received a response.

On March 4, 2002, the Attorney General responded to the mandamus action urging that the petition be denied because Judge Sawyer has demonstrated good cause for delay and demonstrated that a judicial decision is forthcoming. The memorandum of authority attached to the response to petition for writ of mandamus states:

Judge Sawyer drafted the liability portion of the Order on the underlying contract action. Thereafter, he requested the exhibits from the court reporter so that he could draft the damages portion of the Order. Because the court reporter was unable to locate the exhibits, a final Order could not be completed. The exhibits were located by the court reporter on February 11, 2002 and anticipated a final Order will be rendered by March 15, 2002.

The Code of Judicial Conduct, Canon 3(B)(8), requires that a judge dispose of all judicial matters promptly. We conclude that the response does not state a good cause to justify the delay in the ruling on this underlying cause of action.

A judgment was entered in the underlying cause of action by Judge Sawyer and filed with the Benton County Circuit Clerk on Wednesday, March 6, 2002, rendering this petition for writ of mandamus moot.

A copy of this opinion will be forwarded to the Arkansas Judicial Disability and Discipline Commission.

Petition moot.


text:
    IN RE: RULE 37.5(b)(1)(A) of the ARKANSAS RULES of CRIMINAL PROCEDURE
    Supreme Court of Arkansas
    Delivered November 29, 2001
   P ER CURIAM.

The Arkansas Supreme Court Committee on Criminal Practice has recommended an amendment to Rule 37.5(b)(1)(A) of the Rules of Criminal Procedure in response to the adoption of Rule 10 of the Arkansas Rules of Appellate Procedure—Criminal (Automatic Review in Death Cases). See In Re: Amendment to Rule 10, 345 Ark. Appx. (July 9, 2001). Because of the adoption of Rule 10, certain language in Rule 37.5 (b)(1)(A) became obsolete.

We agree with the Committee’s recommendation and adopt, effective immediately, the amendment to Rule 37.5 (b)(1)(A) as republished below.

We express our gratitude to the members of the Criminal Practice Committee for their work on this matter.

Rule 37.5. Special rule for persons under sentence of death.

*

(b) Requirement of Hearing on Appointment of Attorney.

(1)(A) Upon affirmance of a sentence of death by the Supreme Court of Arkansas, the clerk of the court shall forward a copy of the mandate to the circuit court that imposed the sentence of death and to the Attorney General. The circuit court shall conduct a hearing to consider the appointment of an attorney to represent the person in post-conviction proceedings under this rule. If the Supreme Court affirms a sentence of death, the hearing shall be held not later than twenty-one (21) days after the mandate is issued by the Supreme Court.

        “Line-in, line-out” version of Rule 37.5 (b)(1)(A) to illustrate changes:

      Upon affirmance of a sentence of death by the Supreme Court of Arkansas, the clerk of die court shall forward a copy of the mandate to the circuit court that imposed the sentence of death and to the Attorney General. The circuit court shall conduct a hearing to consider the appointment of an attorney to represent the person in post-conviction proceedings under this rule. If the Supreme Court affirms a sentence of death or-affirms-fchc-trial courds-finding-of competency to waive an appeal from a sentence of death, the hearing shall be held not later than twenty-one (21) days after the mandate is issued by the Supreme Court. If an-appeal is taken from the sentence of death but later dismisscd-by-the-Suprcme i^-dismasscd-l-fa-timclynoticc-of appcal-is filed with the trial court’but the trial record is never lodged in the Supreme Court^he4icaréng-shaH-bc-hcld-not-laCcr-than twenty-one- (21) days-aftcr-dicTast-datc-for-lodging-thc-trial rccord in the Supreme Court. If no timely notice


author: P IER CURIAM.

text:
    In RE: ESTABLISHMENT of the ARKANSAS LAWYERS ASSISTANCE PROGRAM
    Supreme Court of Arkansas
    Delivered December 13, 2001
   P IER CURIAM.

By way of per curiam order dated September 20, 2001, we published the proposed policies and procedures of the Arkansas Lawyers Assistance Program (ALAP). In that order, we invited comment within sixty days of that date.

Upon review of the Clerk’s records, we find that no comments have been received. We have concluded our review of the proposed policies and procedures and approve them as published on September 20, 2001.