author: Steele Hays, Justice. Robert L. Brown, Justice,

text:
    Jeanne V. CARLTON v. Terry A. CARLTON
    93-1135
    873 S.W.2d 801
    Supreme Court of Arkansas
    Opinion delivered April 18, 1994
    [Rehearing denied May 23, 1994.]

      Southern, Allen & James, by: Henry A. Allen, for appellant.

      Melinda R. Gilbert, P.A., and James W. Wyatt, for appellee.

      Brown, J„ would grant rehearing.

   Steele Hays, Justice.

Terry Carlton (appellee) and Jeanne Carlton (appellant) divorced in 1991 and Mr. Carlton was ordered to pay child support of $425 per month for their minor daughter, Carrie. Carlton then remarried, separated, and is paying $70 per week for another child.

Based on a change of circumstances Carlton petitioned for a reduction of child support paid to Jeanne Carlton. Mrs. Carlton counter claimed asking that visitation be made specific and if Mr. Carlton failed to exercise visitation he be required to pay $40 per day because of child care and other costs incurred by Mrs. Carlton. Her pleading alleged that because Mr. Carlton had indicated an intention not to exercise visitation in the future, child support should be increased by $250 per month.

Following a hearing the chancellor denied the requested increase and set child support in accordance with the child support chart at $352 per month. The chancellor found that Mr. Carlton was unable to exercise visitation because of his work schedule and that she lacked authority to order him to exercise visitation or to increase child support on that basis. Mrs. Carlton brings this appeal on two points of error: That the trial court erred in ruling it did not have authority to increase child support above the chart because of Mr. Carlton’s failure to exercise any visitation and in not increasing child support obligation above the chart amount. Finding no error, we affirm.

Citing only this court’s Per Curiam order of May 13, 1991, 305 Ark. 613, 804 S.W.2d XXIV (1991), Mrs. Carlton notes the following provision:

The Child Support Chart assumes that the non-custodial parent will have visitation every other weekend and for several weeks during the summer. Excluding weekend visitation with the custodial parent, in those situations where a child spends in excess of 14 consecutive days with the non-custodial parent, the court should consider whether an adjustment in child support is appropriate, giving consideration to the fixed obligations of the custodial parent which are attributable to the child, to the increased costs of the non-custodial parent associated with the child’s visit, and to the relative incomes of both parents. Any partial abatement or reduction of child support should not exceed 50% of the child support obligation during the extended visitation period of more than 14 consecutive days.

Mrs. Carlton interprets that provision as contemplating that a non-custodial parent would have custody between sixty-six and eighty-two days per year, that because of Mr. Carlton’s failure to exercise visitation she will have increased costs not covered by the chart for that additional time.

There is no contention that the amount ordered is not in keeping with the chart based on Mr. Carlton’s earnings, but the following segment of the Per Curiam is cited for the proposition that the trial court is not without the authority to order an amount other than reflected by the chart:

It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a written finding or specific finding on the record that the amounts so calculated, after consideration of all relevant factors is unjust or inappropriate. The court may grant less or more support if the evidence shows that the needs of the dependents require a different level of support. [Our emphasis.]

Clearly the chancellor may take “all relevant factors” into account in determining the appropriate amount. But we are not persuaded that on general, non-specific proof of costs of child care ordinarily and routinely incurred by the custodial parent, the chancellor was duty bound to modify the chart amount. Mrs. Carlton concedes there is no applicable case law. She relies entirely on the language quoted from the Per Curiam.

Mr. Carlton testified that he did maintenance work for a printing company and was on call twenty-four hours a day, seven days a week. He had exercised visitation regularly but had not seen his daughter in about two months; that he was now working longer hours and had difficulty finding a baby sitter on short notice, particularly when called to report for work in the middle of the night. He said Mrs. Carlton insisted on knowing the whereabouts of their daughter at all times, which made it difficult for him to exercise visitation; that he did not presently intend to exercise visitation while at his current job, that if he quit his job he would see Carrie if that were possible. He expressed his willingness to give up his rights as a parent.

The trial court found that no special needs existed, that she lacked authority to force Mr. Carlton to exercise visitation, stating that assessing an economic penalty for not exercising visitation would be an indirect means of ordering visitation. She set child support in the amount reflected on the child support chart.

The chancellor declined to adopt Mrs. Carlton’s theory that when a noncustodial parent fails to exercise visitation under the provisions of the Per Curiam order, the custodial parent is entitled to be compensated accordingly. Without suggesting that a hard and fast rule applies, we do not read the Per Curiam order as implying that when such visitation is not exercised, whether sporadically or consistently, the custodial parent may total the number of days visitation did not occur and claim additional child support per diem.

It seems clear that the quoted language is intended to apply to those situations in which the non-custodial parent has temporary custody for more than a few days at a time, i.e., for intervals “in excess of 14 consecutive days. . .” and we said as much quite recently in Arkansas Department of Human Services v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994). We find nothing in that provision suggesting that the converse is true, that is, if the non-custodial parent does not exercise visitation, an increase is called for.

Moreover, we note, as did the chancellor, that Mr. Carlton’s intentions were not unequivocal. He stated a willingness to forego parental rights, but such rights were not terminated. It appears he had exercised visitation regularly up until two months preceding the hearing, that the underlying reason was the demands of his work and Mrs. Carlton’s understandable concerns about their daughter’s care. He indicated if his work changed, visitation might resume. It is clear the chancellor was influenced by that testimony:

MR. ALLEN: I understand. But it is your finding that he is not and will not in the future exercise visitation with the minor child.
THE COURT: I am saying as of his testimony today, he says he is not and in the foreseeable future as long as he has this job he cannot. That’s all I’m finding. I’m not saying he never will because that’s not what he said. He said based upon his present job —
MR. ALLEN: Depending upon what testimony you —
THE COURT: Well — but he said, “I don’t know that I’ll ever have a different job, it’s never going to happen.” But I’m just telling you that he’s not terminated his parental rights. He’s not requested termination of his parental rights, and so I’m not going to sit here and say it’s never. But I’m also not going to sit here — I wish he would visit with his child but I can’t sit here and order it.

We have recognized that factors affecting child support and its modification do not lend themselves to hard and fast rules and the discretion of the chancellor plays a significant role in these determinations. See, e.g. Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991); Eubanks v. Eubanks, 5 Ark. App. 50, 632 S.W.2d 242 (1982); Collie v. Collie, 242 Ark. 297, 413 S.W.2d 42 (1967); Robbins v. Robbins 231 Ark. 184, 328 S.W.2d 498 (1959).

Mrs. Carlton’s second point is not an alternative argument that the chancellor should have deviated from the chart amount based on other factors, but is dependent upon a finding of merit in the first point. For the reasons already stated, we find no error and, accordingly, the order appealed from is

Affirmed.

Brown, L, dissents.

Corbin, J., not participating.

Robert L. Brown, Justice,

dissenting. This case involves a non-custodial parent, a father in this instance, who has advised the chancery court that he no longer will exercise visitation rights regarding his minor child, Carriej due to job constraints. Under the divorce decree, he was entitled to “reasonable visitation privileges.” Because of á second marriage, a second divorce, and additional child support that he must now pay, the father petitioned for a reduction in child support pertaining to Carrie. The mother counterclaimed for an increase in child support owing to the increase in her food, child care, and recreational expenses caused by Carrie’s additional presence at home on all weekends.

While I agree with the majority that sporadically missing visitation cannot be grounds for an increase in child support, here we have something different. The father has stated that he is halting visitation on a permanent basis. Our child support chart in In Re: Guidelines For Child Support Enforcement, 305 Ark. 613, 804 S.W.2d XXIV (1991) (per curiam) contemplates visitation with the non-custodial parent every other weekend for two days. To remove that factor from the equation represents a major change in the financial arrangement. The mother points out that this can mean between 66 and 82 days of additional care.

The chancellor stated that she had no authority to consider an increase in child support under the logic of our 1991 Guidelines when the non-custodial parent stops visitation altogether. I disagree. Our Guidelines entertain such deviations from child support chart amounts when the circumstances warrant it and where justice requires it.

Let me reiterate that here we are talking about expenses to the mother that are not fixed — expenses for food, child care, and recreation, to be exact. We are further talking about a permanent termination in visitation which represents a dramatic shift in the parents’ arrangement and one which will clearly result in more expense to the mother. I respectfully dissent and would hold that the chancellor has the authority to weigh an adjustment in child support based on this significant new development.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    SHELTER MUTUAL INSURANCE CO. v. Richard William PAGE and Brenda Gilbert
    93-1141
    873 S.W.2d 534
    Supreme Court of Arkansas
    Opinion delivered April 18, 1994

      Compton, Prewett, Thomas & Hickey, P.A., by: Floyd M. Thomas, Jr., for appellant.

      Robert L. Depper, Jr., for appellee.
   Steele Hays, Justice.

This appeal involves the “cooperation clause” of a motor vehicle liability policy. The trial court held the clause was not breached by the failure of the insured to cooperate with the insurer. We agree with the trial court.

Shelter Mutual Insurance Company is the appellant. Richard Page and Brenda Gilbert are the appellees. On August 8, 1988, Brenda Gilbert was injured in a collision with a car driven by Richard Page. The accident occurred in Columbia County, Arkansas. Page was insured by Shelter. Page contacted Shelter promptly after the accident and provided the details.

Brenda Gilbert filed suit against Page on August 7, 1991. Gilbert was unable to obtain personal service on Page so a warning order was published and Page was notified by constructive service. There is no dispute as to the method of service. Page never answered the complaint and he was not subsequently located.

Shelter moved to intervene, the motion was granted and subsequently the trial court found that Page was in default and was liable for the injuries sustained by Mrs. Gilbert. Shelter defended by claiming Page had breached the policy’s cooperation clause by failing to keep Shelter informed of his whereabouts.

The trial court found that Page had not breached the cooperation clause and that Shelter had suffered no prejudice. Mrs. Gilbert was awarded damages of $15,000. Shelter appeals from the judgment, contending the trial court erred in finding that Page had not breached the cooperation clause.

Shelter argues Gilbert was not diligent in pursuing her claim against Page because she did not file her suit until one day prior to the running of the statute of limitations, and “the record is entirely bereft of any attempts” by Gilbert to inform Shelter she had been injured and expected compensation. Shelter insists it made reasonable attempts to locate Page after the suit was filed and it should be released due to Page’s breach of the cooperation clause.

In response, Gilbert argues the burden was on Shelter to present evidence that Page’s absence was for “no good reason.” Further, since the hearing was on the issue of damages only, Shelter was not prejudiced by Page’s absence at trial, and, even if it were, Shelter invited the prejudice by not investigating the accident thoroughly at the time it occurred and by failing to act upon publication of the warning notice. Finally, Gilbert argues Shelter was not prejudiced since it participated fully at the hearing and cross-examined all witnesses on the issue of damages.

As to Shelter’s argument that Gilbert did not act diligently in filing her suit against Page, Gilbert points out that Shelter did not raise this issue below. We will not consider an argument made for the first time on appeal. Dotson v. Madison County, Arkansas, 311 Ark. 395, 844 S.W.2d 371 (1993).

Shelter cites Fireman’s Ins. Co. of Newark, New Jersey v. Cadillac Ins. Co., 13 Ark. App. 89, 679 S.W.2d 821 (1984), as supporting its position. There, the Court of Appeals affirmed a lower court’s finding that the insured’s failure to appear and defend a suit in negligence before a jury constituted a material breach of the policy. That case is distinguishable from the case at bar in that in Fireman’s the negligence suit was tried on both liability and damages, and before a jury rather than a judge with the jury awarding both compensatory and punitive damages. There the insurer had located the insured, provided him with transportation to the trial and compensation for time off from his job but the insured failed to appear at trial. The court noted that the insured’s attitude was one of “reluctant cooperation” throughout and held the insured “lacked good reason for his absence from trial.” Finally, the court noted that the failure of the insured to appear undoubtedly had an “intangible effect upon the jury.”

Shelter also cites Indemnity Ins. Co. of North America v. Smith, 197 Md. 160, 78 A.2d 461 (1951). It, too, is distinguishable. In that case the insured was informed that a suit had been filed and the insured disappeared. The insurer employed the services of an investigator in an unsuccessful attempt to locate the insured prior to trial. The cooperation clause in Smith was similar to this one. In finding that the insured breached the clause, the court stated:

It is thus a well settled rule that to relieve an insurer of liability on the ground of lack of cooperation, discrepancies in statements made by the insured must be made in bad faith and must be material in nature and prejudicial in effect.
The insured under a liability policy containing a cooperation clause is obligated to assist in good faith in making every legitimate defense to a suit for damages. If he refused to give the information which the insurer needs to make the defense, or absents himself so that his testimony cannot be obtained, recovery on the policy should be denied, if the insurer acts with good faith and diligence.
We recognize that two questions may arise when the insured has left the State: (1) Was the insured guilty of bad faith in leaving? and (2) Did the insurer use reasonable diligence in trying to locate the insured to procure his attendance at the trial?

Id. at 463.

Shelter also cites Peters v. Saulinier, 351 Mass. 609, 222 N.E.2d 871 (1967). There, the insured was not the owner of the policy but one who was an insured under the terms of the policy. The insured did not report the accident to the insurer as required. After the insurer was informed of the accident later by the policyholder, its investigators found the insured, but he disappeared again. In an attempt to relocate him, the investigators found the insured’s mother but she was unaware of his whereabouts. Finding that the insurer had exercised diligence and good faith in attempting to obtain the insured’s appearance at trial, the court stated:

An insurer is not bound to keep in touch with each insured while waiting for a case to be reached on a trial list. It is for the named insured and other insured who have benefited from the policy’s protection to keep themselves reasonably accessible after an accident in which they have participated.

Id. at 874.

In U.S. Fidelity & Guaranty Co. v. Brandon, 186 Ark. 311, 53 S.W.2d 422 (1932), this court first addressed an alleged breach of a cooperation clause. The insured told the insurer four days before trial that he would be present but he failed to appear. Finding the insurer had presented “no good reason” why the insured did not make an appearance, we held “it was the duty of the insurance company in this action to go further than showing [the insured’s] mere absence from the trial in order to show lack of cooperation, and to show the reason for such absence.” Id. at 315.

In the case at bar, Shelter’s cooperation clause reads in part as follows:

In the event of an accident or loss, notice must be given to us promptly. The notice must give the time, place and circumstances of the accident or loss, including the names and addresses of injured persons and witnesses.
****
A person claiming coverage under this policy must also:
(1) Cooperate with us and assist us in any matter concerning a claim or suit;
(2) Send us promptly any legal papers received relating to any claim or suit[.]

We regard the holding in Brandon as consistent with the majority of jurisdictions on this issue. First, the burden of proof is on the insurer to show a breach of the cooperation clause. 14 Rhodes, Couch on Insurance, § 194 (Second ed. 1982); Pennsylvania Threshermen and Farmer’s Mutual Casualty Insurance Company v. Owens, 238 F.2d 549 (4th Cir. 1956). Second, there is a two-step approach under the law in determining a breach of the cooperation clause when it involves the absence of the insured at trial. The law requires due diligence-on the part of the insurer to locate the insured or to find the reason for their absence. Couch, supra, § 192; Pennsylvania Threshermen, supra. An excerpt from the opinion in Pennsylvania Threshermen is often quoted:

The problem of non-cooperation has a dual aspect: not only what the insured failed tó do, but what the insurer on its part did to secure cooperation from an apathetic, inattentive or vanished policy holder, must be considered. Liability insurance is intended not only to protect the insured, but also to protect members of the public who may be injured through negligence. Indeed, such insurance is made mandatory in many states. It would greatly weaken the practical usefulness of policies designed to afford public protection if it were enough to show mere disappearance of the insured without proof of proper efforts by the insurer to locate him.

Here, the evidence shows that Page reported the accident in a timely manner and there is no allegation that Page failed to disclose the required information fully and accurately. Paul Whitley, Shelter’s agent in Columbia County, testified he issued the policy for Page in 1987 and 1988, and that Page contacted him about the accident. Whitley testified he asked Page to “always keep me informed of where he was.” After Page reported the accident, Whitley’s next and last contact with the family was January 18, 1989, when Page’s wife wanted changes in their policies. Thereafter, Page’s policy lapsed. Following the lapse of the policy, a postcard informing Page of that fact was sent to Page’s last address and the postcard was not returned to Whitley. Whitley testified that he drove by the Page residence frequently. At one point in time the house was empty and then other people were living there. Whitley said he was first aware of Gilbert’s suit in January 1991 or 1992 when he received a call from Shelter’s attorney. Whitley knew Page worked for Bradham Oil Company while he lived in Columbia County. Finally, Whitley testified that while he usually looked at the classified ads in the Banner News, he could not say whether he noticed the warning order to Page.

There is no evidence that Shelter investigated the accident at the time it occurred, or that it attempted to locate Page through his employer after it was informed of the suit. There is no evidence that Shelter did anything other than try to call Page at his previous address or drive by his former house.

Contrary to Shelter’s argument, the evidence is it merely called its agent and asked if he knew where Page was. From January of 1992, when Shelter first became aware of Gilbert’s suit, until the hearing on May 4, 1993, the record as abstracted is devoid of any efforts by Shelter to locate Page. Because Shelter failed in its burden to show that it made diligent and good faith efforts to locate Page and failed to show that Page’s absence was attributable to an effort to avoid trial, the trial court was correct in finding that Page did not breach the cooperation clause. We need not reach the question of prejudice.

Affirmed.


author: David Newbern, Justice.

text:
    LIFE OF AMERICA INSURANCE COMPANY v. BAKER-LOWE-FOX INSURANCE MARKETING, INC.
    93-1210
    873 S.W.2d 537
    Supreme Court of Arkansas
    Opinion delivered April 18, 1994

      Davidson, Horne & Hollingsworth, by: Allen W. Horne and Mark H. Allison, for appellant.

      William F. Sherman, for appellee.
   David Newbern, Justice.

The issue in this appeal is whether the Trial Court erred in dismissing a complaint on the basis of forum non conveniens. We affirm based on our conclusion that the Trial Court did not abuse his discretion in making that decision.

The dispute involves two Texas companies. One of them, the appellee, Baker-Lowe-Fox Insurance Marketing, Inc. (BLF), entered an agreement with Union Life Insurance Co., an Arkansas-based company, by which BLF was given the exclusive right to market a health insurance policy known as the “Champion” policy. Union Life Insurance Co. subsequently assigned its rights in the marketing agreement to the appellant, Life of America Insurance Company (LOA), the other Texas company, which then became responsible to BLF under the marketing agreement.

The agreement included these provisions:

B. Arbitration
Except as provided in Article IX, those disputes and differences in respect of this Agreement which cannot be satisfactorily resolved shall be submitted to binding arbitration in accordance with the procedures of the American Arbitration Association. The allocation of the cost of arbitration, including attorney fees, shall be made by the arbitrators.
E. Enforcement
This Agreement is made subject to the laws of the State of Arkansas and jurisdiction for the enforcement of this Agreement shall be in the courts of Pulaski County, Arkansas.

Article IX, referred to in the arbitration clause, concerns various aspects of compensation to be paid to BLF and insurance agents marketing the policy.

BLF contends that, shortly after the assignment of the agreement, the number of Champion policyholders decreased dramatically due to intentional acts on the part of LOA designed to avoid its obligations under the marketing agreement. BLF sued LOA in a Texas court where LOA asserted the arbitration and enforcement clauses. The Texas court refused to dismiss on the basis of the arbitration clause and assumed jurisdiction, of the case.

LOA then brought this action in the Pulaski Circuit Court seeking an order compelling arbitration of the dispute. The Trial Court dismissed the claim on thebasis of forum non conveniens. LOA contends the arbitration clause in the marketing agreement deprives the. Trial Court of authority to make a forum non conveniens determination.

According to LOA, the mere presence of personal and subject matter jurisdiction is sufficient to require that the Trial Court not dismiss on the basis of forum non conveniens. It relies on Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974), for the proposition that the factors which determine the most convenient forum are the forum selection and arbitration clauses, as that is what was bargained for by the original parties.

At issue in the Scherk case was a sales agreement between an American company and Mr. Scherk, a German citizen. The agreement was negotiated in three countries, signed in another and closed in yet another. It contained an arbitration clause which provided that any controversy would be referred to arbitration before the International Chamber of Commerce in Paris, France. A dispute arose and Alberto-Culver filed an action for damages in a Federal District Court in Illinois, alleging a violation of the Securities Exchange Act of 1934. Mr. Scherk’s motion to dismiss the complaint for lack of personal and subject matter jurisdiction, and forum non conveniens, was denied. The District Court also denied his motion to stay the action pending arbitration in Paris.

The Supreme Court reversed and found that the provisions of the United States Arbitration Act controlled and the dispute should be arbitrated under the terms of the agreement.

LOA’s reliance on this case is misguided. Neither the District Court nor the Supreme Court based its decision on forum non conveniens. The focus was on the competing interests between enforcement of the United States Securities Act which protected, the interests of United States citizens and the desirability of use of arbitration under the United States Arbitration Act. The Supreme Court held that, as between these two interests, the Arbitration Act should control due to the potentially hostile forum which one of the international participants could face if the arbitration clause were not upheld. The Court made no ruling as to Mr. Scherk’s claim of forum non conveniens.

LOA also cites Spring Hope Rockwool v. Industrial Clean Air, Inc., 504 F.Supp. 1385 (E.D.N.C. 1981), for its proposal that where the arbitration clause provides the situs for arbitration, such arbitration cannot be avoided under the doctrine of forum non conveniens.

In that case one of the litigants was incorporated and had its principal place of business in California. The other litigant was located in North Carolina. The agreement between the parties contained an arbitration clause which specifically provided that the place of arbitration would be Berkeley, California. A dispute arose. Among its other claims, the North Carolina company attempted to change the situs of the arbitration on the basis of forum non conveniens. The Trial Court held that the doctrine of forum non conveniens could not be used to change the situs of arbitration when it was specifically provided in the arbitration clause.

The Spring Hope Rockwool case does not relate to the issue before us. Rather, it stands for the proposition that the doctrine of forum non conveniens may not be used to defeat enforcement of a situs provision within an arbitration clause. It has no bearing on the use of the doctrine to determine which court should enforce the agreement as a whole, i.e., the agreement containing the arbitration clause.

According to Ark. Code Ann. Sec. 16-4-101 (Supp. 1993), “[w]hen the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any condition that may be just.” The application of forum non conveniens lies within the sound discretion of the Trial Court. See Country Pride Foods Ltd. v. Medina & Medina, 279 Ark. 75, 648 S.W.2d 485 (1983). Only if this discretion is abused will the reviewing court reverse. Id.

The factors to be considered in applying the doctrine are the convenience to each party in obtaining documents or witnesses, the expense involved to each party, the condition of the trial court’s docket, and any other facts or circumstances affecting a just determination. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). We have been cited to no authority which holds that forum selection and arbitration clauses control the forum non conveniens doctrine.

In his order the Trial Court found the following with respect to the enforcement clause in the agreement:

7. The original drafting and signing of the contract between Union Life Insurance Company and the Defendant herein placed the facts squarely in Arkansas and there was justification for placing paragraph E concerning the forum and law to be applied in the event of a dispute. However, with the substitution of the Plaintiff herein Life of America into' the contract the situation encountered an important turn. No longer was a party to the agreement in the State of Arkansas. Indeed both were now residents of the State of Texas, and further most of the policyholders concerned in this dispute resided in Texas. There still remains some semblance of contact with Arkansas in that if the case went to trial, at least one representative of Union Life Insurance would be compelled to testify, but other than that, Union Life Insurance Company’s involvement was limited. The controversy basically is between two Texas companies concerning Texas policy holders. Thus the question is whether Paragraph E can override these strong reasons to allow the case to proceed in the Texas courts. This Court does not believe so.
8. In examining the evidence in this case the Court finds the following factors reflecting the convenience of trying the case in Texas:
a. Both parties reside in Texas.
b. The vast majority of the insurance policies in question were sold in Texas.
c. Union Life.Insurance Company, the original party to the agreement, is not involved in the liability portion of the case.
4= * *
e. All damages were suffered in Texas.
f. The majority of witnesses would apparently be Texas residents.
All of these facts weigh heavily in deciding the issue of forum non conveniens.
9. Enforcement of a forum provision such as is contained in the present contract will be enforced if found to be “fair and reasonable.” SD Leasing v. Spain, 277 Ark. 178, 640 S.W.2d 451 (1982). At the time the contract was entered into, no doubt it was “fair and reasonable.” If Union Life Insurance Company were here instead of Life of America, a Texas corporation, a reason for keeping the case in Arkansas would be strongly enhanced. However, Union Life Insurance Company for all practical purposes is out of this cause of action. The successor to Union Life Insurance Company resides in Texas and the initial contact with Arkansas has lost all relevance to the dispute.

With respect to the arbitration clause, the Trial Court stated:

11. In regard to Paragraph B pertaining to arbitration it appears, at best, to be ambiguous in referring to Article IX. It appears as is argued by the Defendant that Paragraph B would not apply to issues of compensation as contained in Article IX. However, giving the Plaintiff herein the benefit of the doubt, it is still ambiguous, and must be construed against the drafter, Union Life Insurance Company and its successor, the Plaintiff herein. Thus, even if the case were to be tried in Arkansas, it is doubtful the arbitration provision would apply.

While we might or might not agree with the Trial Court’s assessment of the arbitration clause, we need not reach it because our decision is that the Trial Court properly applied the doctrine of forum non conveniens, and it will thus be the responsibility of the court in Texas to rule on all aspects of LOA’s rights under the agreement.

Affirmed.


text:
    Troy REDMAN, Administrator of the Estate of Lovina Jean Redman, Deceased and Administrator of the Estate of Christopher Troy Redman v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY
    93-1246
    873 S.W.2d 542
    Supreme Court of Arkansas
    Opinion delivered April 18, 1994

      Marc I. Baretz, for appellant.

      Barrett & Deacon, by; J.C. Deacon and D.P. Marshall, Jr., for appellee.
   David Newbern, Justice.

This is a wrongful death case. The wife and child of Troy Redman were killed in a collision with a St. Louis Southwestern Railway Co. train at a railroad crossing in Greenway. Mr. Redman, administrator of the estates of his wife and child, appeals from a judgment based on a jury verdict in favor of the railway company. Mr. Redman contends a state trooper should not have been allowed to testify as an expert to the normal reaction time of a motorist. We hold there was no error in the circumstances presented. He also urges a state highway official should not have been allowed to testify about a list in which he categorizes railroad crossings in terms of their need for safety upgrades. We hold the testimony did not amount to a witness instructing the jury on the law. In his final point, Mr. Redman says it was error for the Trial Court to give an instruction on expert witnesses not contained in Arkansas Model Jury Instructions — Civil. We hold there was no error because it has not been demonstrated that the instruction was in any way incorrect or prejudicial. The judgment is thus affirmed.

Mr. Redman sued the railway company, alleging it was negligent in failing to recognize and correct an unusually hazardous crossing. Specifically, Mr. Redman contended the railroad right of way could not be seen due to trees and heavy brush near the crossing at which the collision occurred. Mr. Redman contends the railway company should have provided crossing lights at the intersection or should have requested their installation by the proper authorities. The railway company answered that the accident was the result of Mrs. Redman’s negligence.

A jury found neither Mrs. Redman nor the railway company negligent, and judgment was entered in favor of the railway company.

1. Testimony of State Trooper Kirk

Mr. Redman presented the testimony of Dr. Larry Williams, an accident reconstructionist, who was questioned at length about the accident. After Dr. Williams answered questions about his qualifications, Mr. Redman’s counsel submitted that Dr. Williams was an expert. Counsel for the railway company did not conduct voir dire at that time, and no ruling on whether Dr. Williams was an expert ensued. Dr. Williams gave considerable testimony which, had he not been considered an expert would have been inadmissible as hearsay or opinion testimony. Dr. Williams testified that “one and a half seconds is the average reaction time.”

In partial rebuttal, the railway company presented the testimony of State Trooper Larry Kirk who investigated the accident. Trooper Kirk testified that the normal reaction time for a driver is three-quarters of a second. He went on to explain that factors such as fatigue, distraction, stress, or inattention could affect reaction time.

The significance of the reaction time question lay in Mr. Redman’s allegations that his wife could not have had time to react to perception of the oncoming train due to a tree which obstructed her vision as she approached the crossing. The contention was that the tree and brush should have been removed by the railway company.

Mr. Redman objected to Trooper Kirk’s testimony on the ground that Trooper Kirk was not qualified as an expert. The objection was sustained. Counsel for the railway company then asked Trooper Kirk several questions concerning his training and experience. Trooper Kirk testified that he had attended the Law Enforcement Academy, Troop School, and several seminars concerning accidents. He had investigated numerous accidents, including at least ten wrecks involving trains.

Counsel for the railway company then repeated its question to Trooper Kirk about the reaction time for a motorist. The Trial Court again sustained Mr. Redman’s objection on the ground that Trooper Kirk was not qualified as an expert. During re-direct examination of Trooper Kirk, a bench conference was held between the Trial Court and counsel. The Trial Court, asked counsel for the railway company to present any authority that indicated Kirk was an expert. The response was that the trooper’s training as a law enforcement officer gave him knowledge unavailable to the average layman. The next portion of this conference is noted in the record as “unintelligible.” The record resumes with the following:

THE COURT: I am going to let him answer that question, just that one question, and see where it goes.
[ATTORNEY FOR MR. REDMAN]: Judge, I think . . .
THE COURT: I am going to let him answer if he knows.
[ATTORNEY FOR MR. REDMAN]: Judge, this is going to open up . . .
THE COURT: I am not going to open it very wide.

Arkansas Rule of Evidence 702 allows expert witnesses to testify concerning scientific, technical, or other specialized knowledge that will assist the jury to determine a fact in issue. Rule 702 further requires that in order for a witness to testify as an expert, he or she must be qualified by knowledge, skill, experience or education. The qualification of a person to testify as an expert witness lies within the discretion of the Trial Court. See Ark. R. Evid. 104(a); B. & J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984).

Mr. Redman’s argument is two-fold, i.e., the Trial Court erred in allowing Trooper Kirk to testify because he was not formally qualified, meaning pronounced, by the court to be an expert, and Trooper Kirk’s education and understanding concerning reaction times indicated that he had insufficient knowledge to testify as an expert.

a. Education and understanding

Both this Court and the Arkansas Court of Appeals have consistently allowed law enforcement officers to testify based on their education and experience. See Ferrell v. Southern Bureau Casualty Ins. Co., 291 Ark. 322, 724 S.W.2d 465 (1987); B. & J. Byers Trucking, supra; Smith v. Davis, 281 Ark. 122, 663 S.W.2d 165 (1983); Higgs v. Hodges, 16 Ark. App. 146, 697 S.W.2d 943 (1985). Some cases have addressed whether these officers can testify as experts concerning the point of impact in traffic accidents, but we have affirmed decisions recognizing law enforcement officers as experts with respect to other issues. For example, in B. & J. Byers Trucking, supra, we affirmed the Trial Court’s decision to qualify a state trooper as an expert concerning the speed of a truck at the time its driver attempted to stop.

While recognizing Trooper Kirk’s education and background is distinguishable from the extensive credentials of the trooper who testified in B. & J. Byers Trucking, supra, given the range of expert testimony elicited from law enforcement officers in the cited cases, we do not feel it was an abuse of the Trial Court’s discretion to allow Trooper Kirk to testify concerning the reaction time of motorists.

Mr. Redman further argues that Trooper Kirk did not have sufficient knowledge to qualify as an expert concerning driver reaction time. The basis of this argument is that on cross examination Trooper Kirk could not readily explain the difference between “reaction time” and “perception time.” While Trooper Kirk may not have been able to provide a concise answer explaining the relationship of these concepts, that goes to the weight and credibility of an expert’s testimony, and not its admissibility. See Arkansas State Hwy. Comm’n v. Schell, 13 Ark. App. 293, 683 S.W.2d 618 (1985)(citing Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir. 1976)).

b. Formal qualification

While Mr. Redman is correct that the Trial Court did not state formally that Trooper Kirk was qualified as an expert, that omission does not constitute error. The Trial Court twice sustained the objection that Trooper Kirk was not qualified as an expert. Following the bench conference, the Trial Court agreed to let Trooper Kirk testify concerning the reaction time of motorists. The recorded portion of this conference, as abstracted, indicates the focus of this discussion was whether Trooper Kirk was qualified to testify as an expert. When Trooper Kirk was finally allowed to answer the question, Mr. Redman’s attorney stated “[j]ust for the record, note our objections . . . three, he’s not qualified. Just note our objections.” The Trial Court responded “[a]ll right, let’s move on.”

In these circumstances, it is apparent that the Trial Court understood the issue to be whether Trooper Kirk was sufficiently expert to answer the question about reaction time. Given the prior refusal to allow the testimony, it is apparent that, as Mr. Red-man’s brief states, the Trial Court changed his mind. While there was no formal statement that the Court was recognizing Trooper Kirk as an expert for the purpose of answering the question, no other conclusion is feasible.

2. Testimony of engineer

Mr. Redman next argues the Trial Court erred in allowing the testimony of Mike Selig, the supervisor of the traffic safety section of the Arkansas Highway Transportation Department.

Mr. Selig testified that the federal government allocates matching funds to each state annually to upgrade safety devices at railroad crossings. Mr. Selig testified it is his responsibility to compile information on every railroad crossing in Arkansas to determine annually the ones most in need of an upgrade. Mr. Selig testified that, based on the information he had collected, the crossing in question had a low priority for upgrade.

Mr. Redman objected on the basis that this testimony amounted to instructing the jury on the law, which is the duty of the court. The objection was overruled. Mr. Redman asserts that AMI 1805 indicates it is a railroad company’s duty to provide warnings if a railroad crossing is abnormally dangerous, while Mr. Selig’s testimony indicated it is the state’s duty.

Mr. Redman is correct in stating there is a common law duty in Arkansas for railroad companies to provide adequate warnings at abnormally dangerous railroad crossings. See Northland Ins. Co. v. Union Pacific R. R., 309 Ark. 287, 830 S.W.2d 850 (1992), where we stated AMI 1805 should be given to the jury in cases where evidence is presented that a railroad crossing is abnormally dangerous. That instruction was given in this case. The jury was properly instructed.

We note Mr. Redman’s citation of Lusby v. Union Pacific R. R. Co., 4 F.3d 639 (8th Cir. 1993), as authority for his argument that Mr. Selig’s testimony instructed the jury on the law. That opinion, however, was founded not upon any general proposition that a court has the sole responsibility to instruct on the law but upon 23 U.S.C. § 409 which prohibits the admission of any information compiled for purposes of federally funded upgrades of railroad crossings in any action for damages in any federal or state court. See also, Robertson v. Union Pacific R. R. Co., 954 F.2d 1433 (8th Cir. 1992). Mr. Redman does not cite the statute or make that argument in his appeal. He did not cite that statute in any objection to the Trial Court. For those reasons, we need not address this statute in this appeal.

While Mr. Selig’s testimony did refer to the federal law, it was obviously presented for the purpose of indicating his opinion of the dangerousness of the railroad crossing at issue in comparison with other crossings. We cannot agree that it amounted to an instruction to the jury on the law to be applied to resolve the case.

3. Expert witness instruction

The Trial Court gave a non-AMI jury instruction concerning expert witnesses. Mr. Redman contends the Trial Court should have used Arkansas Model Jury Instructions — Criminal 105 to instruct the jury on this issue. AM Cl 105 is a jury instruction on expert witnesses at criminal trials. Further, there is little, if any, difference between the instruction given by the Trial Court and AMCI 105. Other than saying the instruction given was not found in the AMI, Mr. Redman does not tell us why the instruction was erroneous.

We have held that when an AMI instruction does not accurately state the law applicable to a case, the use of a non-AMI instruction is proper. Blakenship v. Burnett, 304 Ark. 469, 803 S.W.2d 539 (1991). That must surely be the case when there is no relevant AMI instruction. We hold it was not error to give a non-AMI instruction in these circumstances.

Affirmed.


author: Tom Glaze, Justice.

text:
    Ann RODGERS v. LA QUINTA MOTOR INN
    93-1338
    873 S.W.2d 551
    Supreme Court of Arkansas
    Opinion delivered April 18, 1994

      Ogles Law Firm, P.A., by: John Ogles, for appellant.

      Friday, Eldredge & Clark, by: William M. Griffin III and Betty J. Demory, for appellee.
   Tom Glaze, Justice.

On May 6, 1991, the appellant, Ann Rodgers, was a business invitee of the appellee’s La Quinta Motor Inn located on Shackleford Road in Little Rock. During the night and while in bed, Rodgers felt pain in her lower leg. Rodgers was treated and later underwent surgery for her injury which she was told was probably due to a bite from a brown recluse spider. No spider was ever found.

On August 10, 1992, Rodgers filed suit against La Quinta, alleging the motel breached its duty of ordinary care in properly treating “the hotel rooms for possible spiders that could injure overnight patrons.” On April 19, 1993, La Quinta filed a motion for summary judgment, alleging that it used reasonable care and no duty to Rodgers was breached. In addition to a supporting brief, La Quinta’s motion was accompanied by invoices from Jim Jamison Pest Control showing bimonthly spraying and “specimen labels” for several insecticides used by Jamison’s pest control company. To support her position against the motion for summary judgment, Rodgers submitted an affidavit from Thomas Rasul, owner of M & N Pest Control, stating that the information submitted by La Quinta did not indicate adequate applications of insecticide to control spiders.

Following a hearing on La Quinta’s motion for summary judgment on July 23, 1993, the trial court granted the motion and dismissed the case with prejudice. Rodgers appeals from that order.

On appeal, Rodgers argues the trial court erred in granting the summary judgment because a disputed fact existed concerning whether her room was sprayed by the pest control company. Rodgers points out that none of the invoices indicated what rooms were sprayed and none indicated that her room was specifically sprayed. Thus, Rodgers argues this omission raises a question of fact as to whether La Quinta breached its duty of care to her as an invitee to keep her room in a reasonably safe condition.

On the other hand, La Quinta argues that Rodgers failed to prove that it had the required knowledge that brown recluse spiders were present on the premises. For support, La Quinta cites Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991), wherein this court adopted a California rule that the owner or occupier of a private residence does not have a duty to protect or prevent bites from harmful insects where (1) it is not generally known that the specific insect is indigenous to the area; (2) the homeowner has no knowledge a specific harmful insect is prevalent in the area where his residence is located; (3) the homeowner has never seen the specific type of harmful insect either outside or inside his home; and (4) neither the homeowner nor the injured guest has seen the specific insect that bit the guest either before or after the bite occurred.

Rodgers attempts to distinguish our holding in Kay by arguing that a private residence was involved there, but that here her case involves a business. We find this distinction without merit since in both cases, the plaintiffs were business invitees, and the duty of care owed was the same in each case.

Under summary judgment, it is appropriate to sustain such a grant if the record demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Tullock v. Eck, 311 Ark. 564, 785 S.W.2d 31 (1993). Our holding in Kay is controlling here, and ■ in applying those elements to the case at bar, the trial court did not err in granting summary judgment.

Here, Rodgers failed to present evidence that La Quinta knew the brown recluse spider was prevalent in the area where the motor inn is located, and that La Quinta or its employees had ever seen a brown recluse spider on the premises. Further, Rodgers failed to show that either she or La Quinta employees ever saw the spider that bit her. In addition, as was the case in Kay, Rodgers was unable to show that the spider which bit her was in her motel room as the result of La Quinta’s negligence or whether it was brought into the room by her. For the foregoing reasons, we affirm.


author: Donald L. Corbin, Justice. Tom Glaze, Justice,

text:
    Claude R. JONES, Trustee for Bull Shoals Community Hospital v. Robert R. HEMPEL
    93-1216
    873 S.W.2d 540
    Supreme Court of Arkansas
    Opinion delivered April 18, 1994

      Josh E. McHughes, for appellant.

      Christopher O’Hara Carter, P. A., by: Christopher O’Hara Carter, for appellee.
   Donald L. Corbin, Justice.

Appellant, Bull Shoals Community Hospital, through its trustee Claude R. Jones, appeals the judgment of Marion Circuit Court which determined that the suit against appellee, Robert R. Hempel, was barred by the two-year statute of limitations. Jurisdiction is proper in this court as it requires the interpretation of a statute, Ark. Code Ann. § 16-56-106 (1987). Appellee admittedly received medical services from appellant in May of 1987 and made no payment until March 6, 1992, in the amount of five dollars. Suit was filed on the balance owed, $1,097.50, on June 9, 1992, within two years of the date of the five-dollar payment. The Marion Circuit Court considered the above stipulated facts and determined the action was time-barred from the date of the services. This appeal resulted, and we reverse and remand.

Appellant argues that the trial court erred in determining that the five-dollar payment did not revive the debt and reactivate the two-year statute of limitations. Though this is a misstatement of the correct argument, we still hold for appellant because the trial court did err in its application of the statute of limitations. The applicable statute of limitations, § 16-56-106, states:

(a) No action shall be brought to recover charges for medical services performed or provided prior to April 1, 1985, by a physician or other medical service provider after the expiration of a period of eighteen (18) months from the date the services were performed or provided.
(b) No action shall be brought to recover charges for medical services performed or provided after March 31, 1985, by a physician or other medical service provider after the expiration of a period of two (2) years from the date the services were performed or provided or from the date of the most recent partial payment for the services, whichever is later.

(emphasis added). This clearly means that a partial payment begins the running of the statute of limitations which was the date of the five-dollar payment, given the stipulated facts of the instant case.

Appellant cites Rogers v. University Servs., 4 Ark. App. 264, 629 S.W.2d 319 (1982) for the proposition that partial payment starts the running of the statute of limitations anew. However, we need not reach the reasoning of that case, though recognizing that the Rogers case arrested and reactivated the statute of limitations before it had run. The instant case involves the initial period in which the statute runs, not revival after expiration.

Appellee argues that public policy and the purpose of the statutes of limitation would be violated if this action were allowed to go forward. However, it is said in 54 C.J.S. Limitations of Actions § 264 (1987) that a voluntary part payment is an acknowledgement or admission of the existence of indebtedness which raises an implied promise to pay. Statutes should be given their plain meaning, and the plain reading of this statute makes it clear that the date from which to begin the two-year statute running in this case is the date of th’e voluntary five-dollar payment. Section (b) of the statute is clear. For this reason, we reverse and remand.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I concur. It has long been settled law in Arkansas that a partial payment will revive a debt barred by limitations, or form a new point from which the statute will begin to run. Johnson v. Spangler, 176 Ark. 328, 2 S.W.2d 1089 (1928) (this court held that a payment made after a note was barred revived the indebtedness and a new [limitations] period of five years began to run from the date of payment). In McNeil v. Rowland, 198 Ark. 1094, 132 S.W.2d 370 (1939), this court further stated that, where it has been established that sums of money were paid by a debtor to a creditor, the presumption is that the money so paid was intended as payment on the debt and not as gifts or donations. Id.

Here, appellee Robert R. Hempel received medical services from the appellant Bull Shoals Community Hospital during the month of May of 1987, but Hempel made no payments on his bill for services. After more than four years had passed from his receipt of medical services, Hempel volunteered a five-dollar payment to the hospital on his past services. Although the applicable two-year statute of limitations had run pertaining to Hempel’s past medical services, his 1992 five-dollar payment revived the previously barred indebtedness. Ark. Code Ann. § 16-56-106 (1987).

For the above reasons, I agree with the majority to reverse.


author: Robert L. Brown,

text:
    Harold MINGS v. STATE of Arkansas
    CR 93-1295
    873 S.W.2d 559
    Supreme Court of Arkansas
    Opinion delivered April 18, 1994

      William A. McKean, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown,

Justice. Appellant Harold Mings appeals his judgment of conviction for driving while intoxicated, second offense. He raises one issue: whether the trial court erred in denying his motion to suppress on grounds that the arresting officer who originally stopped and detained Mings did so outside of the officer’s territorial jurisdiction which, according to Mings, was limited to the city of Jacksonville. At the hearing before the trial court, the prosecuting attorney submitted proof that the officer was a special investigator for the Sixth Judicial District who had authority to stop and detain persons anywhere within the district. The trial court agreed and denied the motion to suppress. We affirm the trial court’s decision.

In 1990, Officer Thomas Reshel began working as a police officer for the city of Jacksonville. Also in 1990, Officer Reshel was appointed by the prosecuting attorney for the Sixth Judicial District, Mark Stodola, to be an investigator for the district. Circuit Judge Chris Piazza swore in Officer Reshel as a special investigator, and he carried a card evidencing this appointment which was signed by both the prosecutor and the circuit judge.

On March 14, 1992, Officer Reshel picked up a prisoner at the Pine Bluff Department of Correction pursuant to a warrant issued through the Jacksonville Police Department. He was transporting this prisoner back to Jacksonville around midnight on March 15, 1992, and was near the intersection of 1-30 and I-40 in North Little Rock, when he observed a car being driven erratically. He watched the car, whose driver was later identified as Mings, almost hit another vehicle near the Lakewood overpass.

Officer Reshel contacted his dispatcher and requested that an Arkansas State trooper or a North Little Rock police unit be dispatched to stop Mings. He was told that there was no police unit available and that he should contact the Sherwood Police Department as Mings was traveling toward the Sherwood city limits. Officer Reshel continued to follow Mings. As the vehicles entered the Sherwood city limits, Mings crossed the center line of the road. He then exited at Rixie Road and partially ran off the road. At that point, Officer Reshel made the decision to stop Mings. He did so and informed Mings that he was being stopped because of his erratic driving and that an officer from the Sherwood Police Department was on the way. At that time, the police officer could see the Sherwood police car in transit.

After Officer Lane Goff of the Sherwood Police Department arrived, Officer Reshel gave him Mings’s driver’s license and explained what had happened. Officer Goff then administered a series of field sobriety tests to Mings, who did not perform satisfactorily. Mings was arrested for DWI and taken to the Sherwood Police Department where he was tested on a breathalyzer machine and registered a blood/alcohol content of .229 percent. He was ticketed for DWI and for driving left of center.

Mings was convicted of DWI, second offense, which is a misdemeanor, in Sherwood Municipal Court. He appealed to Pulaski County Circuit Court and filed a motion to suppress the evidence obtained due to Officer Reshel’s stop. He premised his motion on the fact that Officer Reshel did not have a warrant at the time he stopped him and was acting outside of his territorial jurisdiction of Jacksonville. The circuit court conducted a trial de novo, following which it ruled that Officer Reshel was authorized to stop Mings in Sherwood under the authority granted Reshel by virtue of Act 997 of 1993, codified at Ark. Code Ann. § 16-21-1102(a)(2)(B) and (C) (Supp. 1993). That statute provides in pertinent part:

(B) In addition to the above investigators listed by salary, the prosecuting attorney shall have the authority to appoint other investigators as necessary for the administration of justice who shall serve without pay;
(C) All investigators so appointed shall have the authority to issue process and possess all law enforcement officer powers;

The motion to suppress was denied, and the trial court ordered Mings to pay a fine of $1,000.00, suspended his driver’s license for one year, and sentenced him to seven days in jail.

For his sole point on appeal, Mings claims that a police officer may only act outside of his jurisdiction in four circumstances: (1) when in fresh pursuit; (2) when he has a warrant for arrest; (3) when the local law enforcement agency requests that he act; and (4) when a county sheriff requests that a peace officer from a contiguous county come into the sheriff’s county. Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990). Mings argues that none of these four circumstances pertained to this case. He further argues that Officer Reshel was clearly not on business for the prosecuting attorney when he made the stop.

We turn then to § 16-21-1102(a)(2)(B) and (C). The beginning point in interpreting a statute is to construe the words just as they read and to give them their ordinary and accepted meaning. Farnsworth v. White County, 312 Ark. 574, 851 S.W.2d 451 (1993); Brimer v. Arkansas Contractors Licensing Bd., 312 Ark. 401, 849 S.W.2d 948 (1993); Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993). When the language of the statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Arkansas Dep’t of Human Serv. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993).

Applying the above principles to Ark. Code Ann. § 16-21-1102(a)(2)(C), the plain and ordinary meaning of the language “all law enforcement officer powers” includes without question the power to stop an individual suspected of DWI and to detain him. The question then becomes whether the legislature intended that investigators have these powers throughout the entire Sixth Judicial District, which is comprised of Pulaski and Perry counties (Ark. Code Ann. § 16-13-1401 (1987)), or only within the city’s boundaries where the police officer is employed.

The manifest purpose of Act 997 is to establish salaries of the staff of the prosecuting attorney for the Sixth Judicial District. Common sense dictates that an investigator appointed to act for the prosecutor in the Sixth Judicial District must be authorized to act throughout that district. To give the prosecutor the authority to appoint an investigator for the district and then limit that investigator’s territory to the city of Jacksonville would render the appointment meaningless. This court has stated that it will not interpret a statute so as to reach an absurd conclusion. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Cothran v. State, 291 Ark. 401, 725 S.W.2d 548 (1987).

Mings cites us to the case of Perry v. State, supra, on his behalf, but we do not view that case as helpful to his cause. In Perry, we held that a Searcy police officer acting outside of his jurisdiction only had the authority of a private citizen and could not effect an arrest for DWI, second offense. Those circumstances are distinguishable from the case at bar where the police officer involved was endowed with law enforcement powers throughout the judicial district. Indeed, the facts of the present case more closely approximate those in Gritts v. State, 315 Ark. 1, 864 S.W.2d 859 (1993). In Gritts, we concluded that a police officer for a planned community who also was a duly appointed deputy sheriff for the county had the authority to make a DWI arrest outside of the boundaries of the community but within the county.

In truth, the powers afforded to these special investigators of the Sixth Judicial District who operate without pay under § 16-21-1102(a)(2)(C) appear to be significant. The precise reason for this special unit of volunteer investigators is not clearly defined by the General Assembly under the 1993 Act, and we will not engage in speculation to arrive at it. Nevertheless, we repeat that the statutory section in question is clear in its terms and embraces the power to stop and detain which is what Officer Reshel did in the case before us. We find no error.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Donald YOUNG v. Gerald PAXTON
    93-1334
    873 S.W.2d 546
    Supreme Court of Arkansas
    Opinion delivered April 18, 1994

      Grisham A. Phillips, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: John E. Moore and Valerie Denton, for appellee.
   Robert L. Brown, Justice.

The appellant, Donald Young, brought a negligence action against his father-in-law, appellee Gerald Paxton, for injuries which he sustained on Paxton’s land as a result of trimming limbs from a tree. Paxton moved for summary judgment and was successful. Young now appeals and maintains that material issues of fact remain to be decided, including whether he held the status of a licensee or invitee on Paxton’s property, and whether Paxton’s negligence was the proximate cause of his injuries. Young also argues that the order granting the motion for summary judgment was premature because discovery had not been completed. We find no error in the circuit court’s decision, and we affirm.

The following facts are not disputed in the record before us and are derived primarily from Young’s testimony at deposition. On Saturday, June 13, 1992, at approximately three or four o’clock in the afternoon, Young walked over to his father-in-law’s house in Saline County. There, he found Paxton trimming the limb of a hardwood tree with a chain saw while standing on a 20-foot extension ladder. The tree was over 15 feet tall with limbs drooping to the ground. Paxton had previously cut three to four limbs which were lying on the ground. The ladder rested against the limb which Paxton was attempting to trim. As he began to cut the limb which the ladder was leaning against, the limb began to rise as the weight from the severed part fell away. Paxton asked Young to get a rope from his shop. Young located a rope and returned to the tree, and at Paxton’s request he threw him the rope which Paxton then wrapped around the limb. Young held the rope while standing on the ground to prevent it from “bucking” and dislodging the ladder when the cut part of the limb fell away. As Young held the limb securely with the rope, Paxton successfully cut the end of the limb and climbed down the ladder.

Paxton then showed Young where to place the ladder in order to cut another limb. The ladder was placed against the designated limb, and Young climbed to the appropriate level with the chain saw and proceeded to cut it. This occurred some five minutes after Paxton cut the limb with Young’s help. When the weight of the cut part fell away, the limb rose abruptly, and the ladder lost its support, causing Young to fall to the ground. Because of the fall, he sustained serious injuries to both wrists.

On March 29, 1993, Young filed a complaint against Paxton for damages totalling $25,000. The complaint alleged that Young was a licensee on Paxton’s property and that his injuries were proximately caused by Paxton’s negligence, which included:

(1) failure to supply proper tools, implements and materials for use to perform the task which he asked Young to perform;
(2) failure to properly supervise the cutting; and
(3) failure to secure the limb.

Interrogatories were next propounded by each party, and Young was deposed by Paxton.

On July 12, 1993, Paxton filed a motion for summary judgment and attached the complaint and portions of Young’s deposition in support of the motion. The motion stated that Young had admitted that he was a licensee on Paxton’s property and that there was no proof that Paxton had violated any duty owed Young by acting wilfully or wantonly towards him. It further stated that the danger posed by cutting branches from the tree was known or should have been known to Young. In the alternative, the motion stated that as a matter of law Young had failed in his deposition to present any proof that Paxton’s conduct proximately caused his injury. Young responded to the motion but did not state in his response that he required additional time to complete discovery. Following Young’s response to the summary judgment motion, Paxton’s attorney wrote that answers to interrogatories would be forthcoming within a week.

The case was set for trial on August 2, 1993, but Young requested that the trial be continued pending completion of discovery. Young then filed an amended complaint and answers to the interrogatories propounded by Paxton. The amended complaint alleged that Young came on Paxton’s property at Paxton’s express or implied invitation and acted for the parties’ mutual benefit by cutting the branches. Young further alleged that as an invitee Paxton failed to use ordinary care to avoid injury to him because Paxton knew or reasonably should have known that danger existed. In his answers to interrogatories, Young maintained that it was a jury question whether his status was that of invitee or licensee. He added that the question of comparative fault was also a matter for a jury to decide.

The circuit court granted Paxton’s motion for summary judgment due to the absence of a material issue of fact, and an order to that effect was entered on August 17, 1993. On August 18, 1993, Young moved for reconsideration on the basis that discovery was not yet completed. At the ensuing hearing, the circuit court observed that Young failed to argue that necessary discovery was outstanding in response to the motion for summary judgment and that even had they been answered, the answers would not have produced sufficient evidence to affect the ruling. The court then denied the motion.

Young first argues on appeal that summary judgment was inappropriate because material issues of fact remain to be decided. Young is correct that summary judgment is only appropriate when no issue of material fact exists and that the movant is entitled to judgment as a matter of law. Ark. R. Civ. P. 56(c); Bellanca v. Arkansas Power & Light Company, 316 Ark. 80, 870 S.W.2d 735 (1994); Forrest City Machine Works v. Mosbacher, 312 Ark. 578, 851 S.W.2d 443 (1993). Here, Paxton, as the moving party, bore the burden of showing that there were no genuine issues of material fact. Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993). Once the movant makes a prima facie showing of entitlement to judgment, it is incumbent upon the respondent to demonstrate that an issue of material fact remains. South County, Inc. v. First Western Loan Co., 315 Ark. 722, 871 S.W.2d 325 (1994).

On appeal, this court must decide if summary judgment was proper based on whether the proof presented by Paxton left a material question of fact unanswered. Id. At this stage, we view the evidence in the light most favorable to Young, and all doubts and inferences are resolved in his favor. Gann v. Parker, 315 Ark. 107, 865 S.W.2d 282 (1993).

Young initially raises his status as an invitee or licensee as a material issue of fact that must be decided by the trier of fact. This court has recognized that an invitee may be a public invitee or a business invitee. Lively v. Libbey Memorial Physical Medicine Ctr, Inc., 311 Ark. 41, 841 S.W.2d 609 (1992). A business visitor is one who enters or remains on land for a purpose connected with the business dealings of the owner. Id. A public invitee is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. Id. Conversely, one who goes upon the premises of another with the consent of the owner for his own purposes and not for the mutual benefit of himself and the owner is not an invitee but a licensee. Id. This court has declined to extend the invitee status to persons on the premises of another primarily for social reasons. Tucker v. Sullivan, 307 Ark. 440, 821 S.W.2d 470 (1991).

The pleadings and deposition of Young more than suggest that he was not an invitee of any stripe, but rather a licensee. There was no evidence that he was invited onto Paxton’s property. Furthermore, Young was not visiting his father-in-law for any stated business purpose and expected no pay for his assistance. He was essentially visiting an in-law at his home. Under such circumstances, we conclude that reasonable minds could not find otherwise and that, accordingly, no material issue of fact .exists on this point. See Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993); Diebold v. Vanderstek, 304 Ark. 78, 799 S.W.2d 804 (1990); McKay v. St. Paul Ins. Co., 289 Ark. 467, 711 S.W.2d 834 (1986).

There is a second reason for affirmance in this case. The law of negligence requires as essential elements that the plaintiff show that a duty was owed and that the duty was breached. Earnest v. Joe Works Chevrolet, Inc., 295 Ark. 90, 746 S.W.2d 554 (1988); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983); Union Securities Co. v. Taylor, 185 Ark. 737, 48 S.W.2d 1100 (1932); Prosser and Keaton on the Law of Torts, § 30, p. 164 (5th Ed. 1984). Irrespective of Young’s status as invitee or licensee, there is nothing in the proof submitted to indicate that Paxton breached a duty of care owed to Young. A property owner owes a licensee the duty to refrain from causing him injury by willful or wanton conduct, and a duty to warn of hidden dangers or risks. Lively v. Libbey Memorial Physical Machine Ctr., Inc., supra.; King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990). To constitute willful or wanton conduct, there must be a deliberate intention to harm or an utter indifference to, or conscious disregard of, the safety of others. Daniel Const. Co. v. Holden, 266 Ark. 43, 585 S.W.2d 6 (1979). This court has stated, however, that the duty to warn does not extend to obvious dangers or risks that the licensee should have been expected to recognize. Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992); King v. Jackson, supra.

In this case, there is no evidence that Paxton acted willfully or wantonly to cause Young injury. In fact, the evidence shows that Paxton fully advised Young that the limb had a tendency to rise as the weight from a severed branch fell away. Young even assisted Paxton when Paxton was faced with the same risk that five minutes later injured Young. To the extent that the risk had been unknown to Young when he first arrived on the property, that risk was brought to Young’s full attention before his accident. The extent of Young’s knowledge is evidenced by this colloquy at Young’s deposition:

DEFENSE ATTORNEY: Did you know a limb would do this? I mean did you know a limb hanging like in Exhibit 1, if you cut the end of it off, the heavy foliage on the end, that it would pop up like that?
YOUNG: I did after he [Paxton] put that rope on there, yes. I didn’t know it previously.
DEFENSE ATTORNEY: But I mean you knew it five minutes before this accident happened?
YOUNG: Yes. I knew that his limb did that.

Thus, Young was well apprised of the risk involved in cutting the tree’s limbs and even participated in safeguarding against that risk when Paxton was doing the cutting.

Even assuming that Young was an invitee, Paxton’s duty would be to use ordinary care to maintain the premises in a reasonably safe condition for him. Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991). That duty owed to an invitee usually is satisfied when the danger is either known or obvious to the invitee. Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990); Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344 (1974); Ramsey v. American Automobile Ins. Co., 234 Ark. 1031, 356 S.W.2d 236 (1962). As we said in Ramsey:

[T]here is no obligation to protect the invitee against dangers which are known to him, or which are so apparent that he may reasonably be expected to discover them and be fully able to look out for himself.

234 Ark. at 1034, 356 S.W.2d at 238 (citation omitted).

This court has held that a question of fact exists where the visitor is unaware of the risk. Kuykendall v. Newgent, supra. But, again, in the case at hand Young knew the risk he was taking, and there was simply no evidence that Paxton failed to exercise ordinary care for the reasons already stated. Reasonable minds could not conclude otherwise.

We hold that regardless of Young’s status, that is, whether he was a licensee or invitee, Paxton did not breach the duty of care owed. He perpetrated no wilful or wanton injuries upon Young, and Young was well aware of the danger involved in the limb cutting. Because breach of a duty owed is an essential element to a cause of action for negligence and that element was lacking, summary judgment was appropriate. Because we so hold, it is not necessary for us to address the issue of proximate cause.

For his final point, Young asserts that the circuit court erred by granting summary judgment before discovery was complete. Although he raised this argument in his motion to reconsider after the order for summary judgment was entered, he did not request additional time for discovery in his response to the appellee’s motion for summary judgment. As a consequence, the issue was not timely raised to the circuit court and is not preserved for appeal. See Burge v. Pack, 301 Ark. 534, 785 S.W.2d 207 (1990); Sharp County v. Northeast Arkansas Planning and Consulting Co., 269 Ark. 336, 602 S.W.2d 627 (1980).

Affirmed.


author: Jack Holt, Jr., Chief Justice. Robert L. Brown, Justice,

text:
    BB & B CONSTRUCTION CO., INC. v. F.D.I.C., Successor to Northwest Bank of Dallas, Texas
    93-1203
    875 S.W.2d 48
    Supreme Court of Arkansas
    Opinion delivered April 25, 1994

      Theodore C. Lamb, for appellant.

      Wood, Smith, Schnipper & Clay, by: Ray S. Smith, Jr. and Lynn Williams, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a case involving a materialman’s lien versus a prior encumbrance and the trial court’s finding that the appellant BB & B Construction Company, Inc.’s (BB&B) lien for improvements to certain lands was subordinate to the encumbrances on the property held by the appellee, F.D.I.C., and that F.D.I.C. was entitled to all of the proceeds of sale after foreclosure proceedings. We agree with the trial court and affirm.

This dispute arose due to numerous sales transactions involving a tract of land in Hot Springs, Arkansas. The facts are not in dispute and have been stipulated to by the litigants:

April 15, 1986 James and Stella Hodges borrowed $600,000 from Dallas International Bank (later renamed Northwest Bank of Dallas, Texas) in exchange for a security interest on the property at issue. This mortgage was to secure the price of the land.
October 8, 1986 The Hodgeses sell land to Charles Elliott, and he assumes their mortgage. A document extending the note & lien of the mortgage is executed by Elliott and filed March 6, 1987.
December 1986 BB & B Construction performs work & expends material and labor on land: racetrack improvements & construction of a lake.
March 16, 1987 BB & B files notice of its material-man’s lien in the amount of $38,529.50.
March 20, 1987 BB & B files a complaint against Elliott for recovery on the lien.
April 15, 1987 Elliott conveys land to Lowry Investments by warranty deed which assumes the mortgage. Lowry borrows an additional sum from Northwest Bank bringing total debt to $950,000.
August 28, 1987 Lowry executes a mortgage and security agreement to secure the $950,000 from Northwest Bank.
January 20, 1988 F.D.I.C., as successor to Northwest Bank, obtained a judgment against Lowry for $950,000 and obtains a decree of foreclosure on the land. The land was subsequently purchased by F.D.I.C. for $278,000.
June 23, 1989 A court order was entered finding that BB & B had a viable claim against the proceeds of sale and directed that $53,000 be bonded and held by the. court clerk pending a determination of BB & B’s priority.
August 10, 1989 BB & B received judgment of $38,529.50 plus ten percent interest from 3/16/86 against Charles Elliott.

Thereafter, BB & B filed a motion for judgment upon the lien, asserting that the court had already found that Mr. Elliott was liable to it for $38,529.50 and that the judgment was due in the amount of approximately $65,650 from May 16, 1986 through October 16, 1991. BB & B asked that the $53,000 held in the registry of the court be awarded to it as judgment based upon the materialman’s lien.

F.D.I.C. in turn filed a motion for summary judgment claiming a priority right to the proceeds of the foreclosure sale and an award of all sums from the sale of the land, the proceeds being insufficient to satisfy both the mortgages and BB & B’s lien. In claiming that its mortgage had preference over BB & B’s lien, F.D.I.C. contended that a materialman’s lien is superior to a prior mortgage only if the improvement is separate and distinct from the existing improvements or can be removed from the property without injury to the property, and since the improvements made by BB & B were not removable, the maxim “first in time, first in right” governed.

F.D.I.C. further insists that its mortgage, perfected April 15, 1986, was superior to BB & B’s perfected materialman’s lien dated December of 1986, the date construction began. (Once a materialman properly files, his lien relates back to the date of the beginning of construction. Planters Lumber Co. v. Jack Collier East Co., 234 Ark. 1091, 356 S.W.2d 631 (1962).)

The chancery court agreed with the F.D.I.C. and awarded it the $53,000 held in the registry. It is from this finding that BB & B appeals. For its sole argument for reversal of the court’s decision, BB & B contends that the chancellor erred in her interpretation of Ark. Code Ann. § 18-44-101 and 110 and relevant case law. Section 18-44-101 provides in pertinent part:

(a) Every mechanic, builder, artisan, workman, laborer, or other person who shall do or perform any work to or upon, or furnish any material, fixtures, engine, boiler, or machinery for any building, erection, improvement to or upon land, or upon any boat or vessel of any kind, or for repairing them, under or by virtue of any contract with the' owner or proprietor thereof or his agent, trustee, contractor, or subcontractor, upon complying with the provisions of this subchapter, shall have, for his work or labor done, or materials, fixtures, engine, boiler or machinery furnished, a lien upon the building, erection, or improvement and upon the land belonging to the owner or proprietor on which they are situated to the extent of one (1) acre or the extent of any number of acres of land upon which work has been done or improvements erected.

(Emphasis added.) The .legislature made clear that the “entire land. . .upon which any building, erection, or other improvement is situated, including that part of the land which is not covered with the . . . improvement . . . shall be subject to all liens created by this subchapter. “Ark. Code Ann. § 18-44-402 (1987). Also provided for is preference over prior liens, with some exceptions. In this regard, Arkansas Code Annotated § 18-44-110 provides:

The lien for the things or work specified in this subchapter shall attach to the buildings, erections or other improvements for which they were furnished or work was done in preference to any prior lien, encumbrance, or mortgage existing upon the land before the buildings, erections, improvements or machinery were erected or put thereon. However, in all cases where the prior lien, encumbrance, or mortgage was given or executed for the purpose of raising money or funds with which to make the erections, improvements, or buildings, then that lien shall be prior to the lien given by this subchapter.

(Emphasis added.)

Resolution of this appeal depends upon how § § 18-44-110 and 101 are interpreted. However, since the litigants stipulated that the Hodgeses’ mortgage was to secure the purchase price of the land and neither party questions whether increases in the debt change the status of the mortgage to a construction money mortgage, we do not need to address this aspect of section 18-44-110.

Instead, we address BB & B’s contention that because its lien is a materialman’s lien, it has priority even over a mortgage filed of record prior to the time BB & B commenced work. BB & B does not have any authority to support its position in this regard, and the majority of its argument consists of distinguishing cases cited by the chancery court in reaching its decision.

In further support of its position, BB & B cites a change made in Ark. Stat. Ann. § 51-601 (now Ark. Code Ann. § 18-44-101) by Act 112 of 1969. Prior to Act 112, Ark. Stat. Ann. §51-601 provided:

Every mechanic, builder, artisan, workman laborer or other person who shall do or perform any work upon, or furnish any material, fixtures, engine, boiler or machinery for any building, erection, improvement upon land . . . shall have for his work or labor done, or materials, fixtures, engine boiler or machinery furnished a lien ....

(Emphasis added.)

The language which BB & B stresses is “upon land,” for in Act 112, the language was changed to read, “to or upon land. “BB & B claims that this alteration may only be interpreted to mean that the materialman’s lien attaches to the land regardless of whether the improvement is removable, and this interpretation of Act 112, standing alone, seems to be true. However, BB & B strains this interpretation by insisting that this alteration, read in conjunction with § 18-44-110, gives materialmen’s liens for improvements to lands priority over all liens, even those perfected prior to the materialmen’s lien.

BB & B is misguided in this respect. Lien statutes are a derogation to the common law and must be strictly construed. Mehaffy & Asso., Inc. v. Brophy, 249 Ark. 884, 462 S.W.2d 226 (1971); Dix v. Olds, 242 Ark. 850, 415 S.W.2d 567 (1967); Lambert v. Newman, 245 Ark. 125, 421 S.W.2d 480 (1968).

We have considered the difference in the meanings of “upon” and “to” as the language was used in Ark. Stat. Ann. § 51-601 (now § 18-44-101), noting that the legislature, by stating “improvements upon land” rather than “improvement to land” did not intend a lien to attach to the land so improved but confined it to the land “upon which the same are situated.” Lambert v. Newman, 245 Ark. 125, 431 S.W.2d 480 (1968); Dix v. Olds, 242 Ark. 850, 415 S.W.2d 567 (1967).

Reviewing the foreword to Act 112 of 1969 (which amended § 18-44-101), we see that the legislature’s purpose in changing the wording to “to or upon” was to include certain contractors under the umbrella of creditor protection. There is no suggestion in this language that the legislature, by making this change, intended, in the absence of removable improvements, to give materialmen priority over all liens:

WHEREAS, recent court decisions have disclosed that certain contractors performing clearing, excavating, or ditching services in the process of constructing home sites were not heretofore granted the same lien as mechanics, materialmen, builders, and laborers; and
WHEREAS, the contractors performing these vital and indispensable services should receive the same protection as others herein named.

Thus, this amendment makes improvements to land lienable. Skipper v. Hoskins, 247 Ark. 235, 444 S.W.2d 875 (1969).

We further observe that although § 18-44-101 provides which materialman shall receive protection by this lien as well as the nature and the extent of the lien, § 18-44-110 still sets forth the priority of these liens to other encumbrances and the nature of the lien’s attachment. Specifically, § 18-44-110 provides that the materialman’s lien shall attach to the “building, erection or other improvements for which they were furnished or work was done in preference to any prior lien, encumbrance, or mortgage existing upon the land before the buildings, erections, improvements or machinery were erected or put thereon. “Since the preference attaches to the improvement, it follows that in order to take advantage of the priority, the improvement must be removable:

Under the first in time, first in right rule . . . the . . . materialmen’s lien will be subordinate to any encumbrance on the land and improvement thereon that attached prior to commencement of construction or repair for which the lien is claimed. The priority of the prior encumbrances extends not only to advances pursuant to which the mortgage was executed as security, but also to any future advances which the mortgagee was obligated to make under his agreement with the mortgagor. There is one exception to this rule. Where the . . . lien arises out of the construction of an improvement that is separate and distinct from any existing improvements, or if connected to an existing improvement, is so connected as to be removable without injury to the existing structure, the lien of the mechanic or materialman has priority over the prior mortgage lienholder as to the new improvement. However, the only remedy of the lienholder is removal of the improvement. The lienholder could, of course, pay off the prior encumbrance, be subrogated to the rights of the encumbrancer, and foreclose the lien against the entire property. Such mechanic’s or materialmen’s lien will be subordinate, even as to the improvement, to a prior mortgage executed for the purpose of financing the construction of the improvement.

Glenn E. Pasvogel, Arkansas Debtor-Creditor Relations Handbook, 2.3.1.6 (d) (1988)(citations omitted).

To support its position, F.D.I.C., as well as the chancellor, cite a number of pre-Act 112 of 1969 decisions. BB & B contends that these cases are not persuasive because they were decided prior to the change in § 18-44-110. We disagree. The law remains that as between the lien of a mechanic or the furnisher of material and the lien of a prior mortgage, the lien of the former is superior only upon a separate building constructed on the land with the labor and material furnished, or to such an addition as is separable from the original building. Page v. John E. Bryant & Sons Lumber Co., 232 Ark. 313, 335 S.W.2d 809 (1960); see Morrilton Lumber Co. v. Groom, 176 Ark. 520, 3 S.W.2d 293 (1928).

As mentioned, lien statutes are in derogation of the common law. Thus, the rights of a materialman and the enforcement of his liens are a matter of grace provided by legislative enactment. Although our General Assembly has expanded its umbrella of coverage to certain contractors who,make improvements to the land lienable, such provisions are specific, narrow exceptions and extend only to the limits and conditions prescribed by legislation. It still remains that as between a materialman and a prior mortgagor, “first-in-time, first in right” is the law in Arkansas unless the materialman can remove the improvements from the land. See Glenn E. Pasvogel, Jr., Construction Mechanics’ & Materialmen’s Liens: The Law in Arkansas § 10-5 (1982).

Affirmed.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I cannot disagree with the result of the majority opinion. The priority statute (Ark. Code Ann. § 18-44-110 (1987)) only contemplates a priority lien for improvements upon the land. The sale-under-execution statute (Ark. Code Ann. § 18-44-130 (1987)) then refers to “removal” of the improvement after sale. Neither statute refers to improvements to the land like a pond or racetrack.

I do not believe that the General Assembly intended after 1969 that the lien status of those who have improved land by means other than buildings should be so limited. The apparent intent of the General Assembly in enacting Act 112 of 1969 (now part of Ark. Code Ann. § 18-44-101 (1987)) was to make improvements to the land lienable for all purposes under the sub-chapter. Yet, § 18-44-110 still refers only to materialmen’s liens attaching to improvements “erected or put” on the land and, again, the execution statute contemplates physical removal of the improvement after sale.

The priority status of improvements to the land for work like permanent excavation work needs legislative clarification. Otherwise, the priority status of a lienholder who has improved land but not erected a structure on it will continue to be nil if the land has a preexisting mortgage lien.


author: Jack Holt, Jr., Chief Justice.

text:
    Gary Keith TOLBERT v. STATE of Arkansas
    CR 93-976
    874 S.W.2d 371
    Supreme Court of Arkansas
    Opinion delivered April 25, 1994

      Harold W. Madden, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Gary Keith Tolbert, raises two points for reversal in this appeal from his rape conviction and life sentence. He argues that the trial court erred (1) in failing to direct a verdict in his favor and (2) in permitting the introduction of evidence of other offenses. Since Tolbert neglected both to renew his motion for directed verdict at the conclusion of all evidence and to object to the introduction of evidence of other offenses, the judgment must be affirmed.

Gary and Gina Tolbert were married in 1980. Ms. Tolbert had a son by a previous marriage, who, at that time, was about four or five years old. The boy lived with his mother and Gary Tolbert, whose relation to him was that of stepfather. During the course of the Tolberts’ marriage, two daughters were born.

In March 1991, the couple divorced. Ms. Tolbert’s son, now a teenager, lived with his stepfather Gary for approximately four months after the divorce, through the end of a term of summer school in July. On returning to his mother, he informed her that “Gary had been messing with him” and that he had “done had more sex with Gary than any way that I could think of.”

Subsequently, the victim delivered statements to the Department of Human Services ánd the Arkansas State Police. A probable cause affidavit signed by Detective Sergeant David Smith of the Saline County Sheriff’s Department, dated November 5, 1991, stated that the victim had been interviewed by Investigator Brenda Hale of the Arkansas State Police and that he had reported that he had been sexually abused by Gary Tolbert since the age of five. The affidavit recited instances of masturbation, oral sex, anal sex, and the use of a vibrator. On November 13, 1991, Dr. Mary Jewell Atkins examined the victim and found damage to the rectal area suggestive of sexual abuse.

Tolbert was charged by information on November 15, 1991, with the class Y felony of rape under Ark. Code Ann. § 5-14-103 for acts occurring between 1980 and 1991. A jury trial was held on October 22, 1992, at which Tolbert took the stand in his own behalf, denying the allegations against him. However, in addition to the testimony of the victim and other witnesses, the state produced two letters written by Tolbert to his stepson that provided evidence of the sexual character of the relationship. Tolbert was found guilty and was sentenced to life imprisonment. This appeal followed.

I. Sufficiency of the evidence

On appeal, we first address Tolbert’s challenge to the sufficiency of the evidence before reviewing any other asserted trial error. Coleman v. State, 315 Ark. 610, 869 S.W.2d 713 (1994); Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994).

During trial, at the close of the state’s case, Tolbert moved for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). Although Tolbert made a motion for a directed verdict at the conclusion of the presentation of the state’s evidence, he neglected to do so at the close of all the evidence.

Under Ark. R. Crim. R 36.21, a failure to challenge the sufficiency of the evidence by a renewed motion for a directed verdict at the end of the case constitutes a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. Cummings v. State, 315 Ark. 541, 869 S.W.2d 17 (1994); Cole v. State, 307 Ark. 41, 818 S.W.2d 573 (1991). Therefore, this court is precluded from considering the issue of the sufficiency of the evidence.

II. Evidence of other offenses

Tolbert also argues that the trial court committed reversible error in admitting evidence of his sexual advances toward another adolescent male, Joe Spear. He asserts that the witness’s testimony, which was unrelated to the crime with which he was charged, was presented solely for the purpose of persuading the jury that he must therefore have “acted in conformity” in raping his stepson, in violation of Ark. R. Evid. 404(b).

However, the record reveals that the defense made no motion in limine to exclude Joe Spear’s testimony prior to trial. Moreover, no objection based on Rule 404(b) was lodged at trial.

A motion in limine was in fact made concerning the youth’s testimony, but it was made by the prosecution and concerned a potential defense probe of a burglary charge against Spear and his commitment to a hospital for mental-health care. Indeed, the prosecutor commented at the time of the discussion in chambers that “I don’t believe that after reviewing the case law the Defense counsel has any objection to his testimony.” Defense counsel was silent. And, as mentioned above, no objection was raised at trial on the basis of Ark. R. Evid. 404(b) when Joe Spear testified.

Simply put, Tolbert has failed to preserve this issue for appeal. An argument for reversal will not be considered in the absence of an objection. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

III. Rule 4-3 (h)

Pursuant to Rule 4-3(h) of the Rules of the Supreme Court and Court of Appeals, the state has undertaken a review of the record and has abstracted additional rulings decided adversely to Tolbert. None of these involves prejudicial error.

Affirmed.

      Testimony concerning the boy’s age at the time Gary and Gina Tolbert were married was inexact, but he was eighteen at the time of the October 1992 trial.