author: W.H. “Dub” Arnold, Chief Justice.

text:
    BEVERLY ENTERPRISES-ARKANSAS, INC., Individually and d/b/a Beverly Health and Rehabilitation Center v. Paul HILLIER, as Guardian of Dorothy Hillier
    99-998
    14 S.W.3d 487
    Supreme Court of Arkansas
    Opinion delivered April 13, 2000

      Floyd G. Rogers, Judge; dismissed;

      Jones, Jackson & Moll, PLC, by: Randolph C. Jackson and Jay W. Kutchka, for appellant.

      Nolan, Caddell & Reynolds, P.A., by: Bennett S. Nolan; and Smith, Maurras, Cohen, Redd & Horan, PLC, by: Matthew Horan, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellant, Beverly Enterprises-Arkansas, tice. the instant appeal challenging the circuit court’s order granting appellee Paul Hillier’s motion for voluntary nonsuit and dismissing his complaint without prejudice. In response to Beverly’s appeal, Hillier argues that the appeal should be (1) dismissed because the circuit court’s order was not final for purposes of appeal, or (2) affirmed because Beverly waived the issue by failing to obtain a ruling on its motion to set aside the challenged order. The Court of Appeals certified this case for us to consider whether the circuit court’s order granting appellee’s motion for nonsuit constitutes a final order for purposes of appeal. We agree with appellee that the circuit court’s order was not a final, appealable order. Accordingly, we grant appellee’s motion to dismiss Beverly’s appeal for lack of jurisdiction. See Ark. R. App. R — Civil 2(a) (1999).

Background

After being appointed guardian of his mother, Dorothy Hillier, Paul Hillier commenced a civil negligence action on her behalf against Beverly on June 19, 1997. Dorothy then died on December 10, 1997. Paul then filed a second amended complaint on February 9, 1999. Ultimately, on April 29, 1999, Beverly filed a motion to dismiss, pursuant to Ark. R. Civ. P. 12(b)(6). Specifically, Beverly argued that the circuit court should dismiss the complaint with prejudice because Hillier (1) failed to revive the action within one year after Dorothy’s death, as required by Ark. Code Ann. section 16-62-108, and (2) failed to commence a new action, through the estate’s administrator, pursuant to Ark. Code Ann. section 16-56-117(c).

Shortly after Beverly filed its motion to dismiss, Hillier filed a motion on May 12, 1999, to nonsuit the case pursuant to Ark. R. Civ. P. 41 (1999). On that same day, the circuit court granted Hillier’s motion and dismissed the complaint without prejudice. On May 21, 1999, Beverly filed a response to Hillier’s motion to non-suit and a motion requesting that the circuit court set aside its May 12th order. Notably, the circuit court never ruled upon Beverly’s prior motion to dismiss or upon its motion to set aside the court’s order. Beverly then filed a notice of appeal on June 10, 1999, challenging the May 12, 1999, order.

Finality of nonsuit order

Ark. R. App. P. — Civil 2(a) (1999) permits the appeal of final judgments, decrees, or orders, which in effect discontinue the action or determine the action and prevent a judgment from which an appeal might be taken. Significantly, the supreme court will not reach the merits of an appeal if the order appealed from is not final or does not fall within one of the enumerated exceptions. See Wilburn v. Keenan Cos., 297 Ark. 74, 76, 759 S.W.2d 554, 555-56 (1988) (citing Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987)); Ark. R. App. P. — Civil 2(a) (1999). In fact, the rule that an order must be final to be appealable is a jurisdictional requirement, observed to avoid piecemeal litigation. Wilburn, 297 Ark. at 75-76, 759 S.W.2d at 555. We have held that for an order to be final and appealable, it must terminate the action, end the litigation, and conclude the parties rights to the matter in controversy. Petrus v. Nature Conservancy, 330 Ark. 722, 725, 957 S.W.2d 688, 689 (1997); Allred v. National Old Line Ins. Co., 245 Ark. 893, 895-96, 435 S.W.2d 104, 106 (1968).

Here, Hillier claims that the circuit court’s order granting nonsuit and dismissing the claim without prejudice is not a final order or an adjudication on the merits because the merits of the cause are not finally determined. See Melton v. St. Louis I. M. & S. Ry. Co., 99 Ark. 433, 436, 139 S.W. 289, 291 (1911). We agree. First, contrary to Beverly’s assertion, a plaintiff has an absolute right, pursuant to Ark. R. Civ. P. 41(a), to voluntarily nonsuit a claim without prejudice. Whetstone v. Chadduck, 316 Ark. 330, 332, 871 S.W.2d 583, 584 (1994). Rule 41(a) provides that “an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court... [and] such a dismissal is a matter of right.” We have consistently upheld this provision. See Whetstone, 316 Ark. at 332, 871 S.W.2d at 584. Second, we have expressly held that where a plaintiff has exercised his absolute right to voluntarily dismiss his claim, the first dismissal is without prejudice and is not an adjudication on the merits. See Lemon v. Laws, 305 Ark. 143, 145, 806 S.W.2d 1, 2 (1991). Consequently, the order granting nonsuit is not a final order for purposes of appeal.

The case of Cowan v. Schmidle, 312 Ark. 256, 848 S.W.2d 421 (1993), is helpful to illustrate the precise issue before us in the instant appeal. In Cowan, we dismissed the appellants’ appeal because we held that they had no standing to pursue the appeal. The Schmidles, as in the instant case, chose to voluntarily nonsuit their claim against the Cowans pursuant to Ark. R. Civ. P. 41(a). Subsequently, the Cowans appealed various rulings of the trial court. We determined that the Cowans were seeking an unauthorized interlocutory appeal because, as a result of the appellees’ nonsuit, the case was resolved in the Cowans’ favor. We noted that while rulings on the merits may be appealable if there is eventually a judgment against the Cowans, at the point the case was nonsuited, the Cowans actually prevailed and had no standing to appeal. In fact, there was no decision prejudicial to them on the merits of the underlying claim. Accordingly, we dismissed the portion of the appeal relating the merits of the case. Cowan, 312 Ark. at 258, 848 S.W.2d at 422-23.

Similarly, the circuit court honored Hillier’s absolute right to voluntarily nonsuit his claim against Beverly. That order, dismissing the case without prejudice, leaves Hillier free to refile his suit against Beverly. Accordingly, at this time, there is no adjudication on the merits to review on appeal. Should Hillier refile the suit and the trial court reach the merits of the case, these issues may be ripe for appeal. In the meantime, we lack jurisdiction over the instant appeal because the circuit court’s May 12, 1999, order granting a nonsuit and dismissing appellee’s complaint without prejudice, is not a final, appealable order. Based upon the foregoing, we grant appellee’s motion submitted with the parties’ briefs, and we dismiss the appeal.


source: Caselaw Access Project

author: DONALD L. Corbin, Justice. ROBERT L. Brown, Justice,

license: Public Domain

text:
    Eleanor MATTHEWS v. JEFFERSON HOSPITAL ASSOCIATION
    99-749
    14 S.W.3d 482
    Supreme Court of Arkansas
    Opinion delivered April 13, 2000

      Philip M. Wilson, for appellant.

      Ramsay, Bridgforth, Harrelson & Starling, LLP, by: William M. Bridgforth, for appellee.
   DONALD L. Corbin, Justice.

Appellant Eleanor Matstappeals ice. of the Arkansas Workers’ Compensation Commission denying her claim for benefits for bilateral carpal tunnel syndrome from her employer, Appellee Jefferson Hospital Association. The Commission found that Appellant failed to prove by a preponderance of the evidence that her injury arose out of and in the course of her employment with Appellee, and that a work-related injury was the major cause of her disability and need for medical treatment. The Arkansas Court of Appeals affirmed the Commission’s decision, by a tie vote, in Matthews v. Jefferson Hospital Ass’n, 67 Ark. App. 55, 991 S.W.2d 629 (1999). We granted Appellant’s petition for review of that decision pursuant to Ark. Sup. Ct. R. l-2(e)(i). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). We affirm the Commission’s decision.

In appeals involving claims for workers’ compensation, we view the evidence in a light most favorable to the Commission’s decision and affirm the decision if it is supported by substantial evidence. Id.; Ester v. National Home Ctrs., Inc., 335 Ark. 356, 981 S.W.2d 91 (1998). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Williams v. Prostaff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). There may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972). See also Arnold v. Tyson Foods, Inc., 64 Ark. App. 245, 983 S.W.2d 444 (1998). In other words, we will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Pickett, 336 Ark. 515, 988 S.W.2d 3; Ester, 335 Ark. 356, 981 S.W.2d 91. With this standard in mind, we examine the Commission’s findings.

The Commission’s opinion reflects that Appellant first became employed with Appellee on March 1, 1981. She held a number of administrative positions with Appellee over the years. At the time of her claim, Appellant was employed as a receptionist and assistant to the administrator of the Davis Life Care Facility. She had held that position since August 1992. While employed at the Davis Facility, Appellant sought workers’ compensation benefits for symptoms of bilateral carpal tunnel syndrome that she reportedly began experiencing in February 1996. Appellant ultimately came under the care of Dr. John Lytle, an orthopedist. Dr. Lytle diagnosed Appellant as having bilateral carpal tunnel syndrome. He also observed a cystic-type mass in one of her hands. Dr. Lytle performed carpal-tunnel-release surgery on Appellant’s right wrist on December 31, 1996. The medical evidence submitted to the Commission consisted of a letter to Appellant’s counsel from Dr. Lytle and five office notes recorded by Dr. Lytle. In an office note dated January 9, 1997, Dr. Lytle wrote: “This is, in my opinion, a work-related problem from her long-term history of being a typist.”

A hearing was held before the administrative law judge (ALJ) on April 16, 1997. In a September 2, 1997" opinion, the ALJ denied Appellant’s claim on the ground that she failed to demonstrate that she sustained a compensable injury established by objective medical evidence. Appellant then appealed to the Commission.

After conducting a de novo review of the entire record, the Commission concluded that Appellant “failed to show by the greater weight of the credible evidence that she sustained carpal tunnel syndrome arising out of and in the course of her employment” with Appellee. The Commission found that Dr. Lytle’s opinion that her injury was causally related to a long-term history of employment as a typist was based on an erroneous impression that Appellant engaged in some form of hand-intensive job duties for Appellee. In making this finding, the Commission relied on Appellant’s testimony that she performed various work activities at the Davis Facility including answering telephone calls; handling all filing, photocopying, payroll, and personnel records; interviewing applicants; keeping minutes of all meetings; working with Medicare and Medicaid forms; and running various errands for the facility. The Commission also pointed to Appellant’s testimony that only twenty-five to forty percent of her time was spent typing. The Commission thus found that Dr. Lyde’s opinion regarding the etiology of Appellant’s injury was based on a misunderstanding of her actual work duties at the Davis Facility.

The Commission also relied on inconsistencies in Appellant’s testimony regarding the onset of her symptoms. On direct examination, Appellant testified that she first experienced pain and numbness in her right arm and hand in February 1996, while she was at home laying in bed. On cross-examination, however, Appellant testified that she had previously felt numbness in her right hand in 1994, while exercising at a health club. Dr. Lytle’s opinion made no reference to Appellant’s 1994 symptoms, leading the Commission to infer that his diagnosis was not based on an accurate history. The Commission thus concluded that Dr. Lytle’s opinion was entitled to very little weight.

The court of appeals affirmed the Commission’s decision primarily on the basis that Appellant’s argument, which consisted of only two paragraphs, failed to cite any convincing argument or relevant citation of authority. Additionally, the court of appeals noted that Appellant’s brief erroneously relied on the ALJ’s findings rather than the findings of the Commission.

On review to this court, Appellant’s argument is again only two paragraphs long. The only legal authority cited by Appellant does not provide any support for her argument; rather, it merely sets out the relevant standard of review. Thus, given the lack of any convincing argument or legal authority, we, too, affirm the Commission’s decision. We have stated on occasions too numerous to count that we will not consider the merits of an argument if the appellant fails to cite any convincing legal authority in support of that argument, and it is otherwise not apparent without further research that the argument is well taken. See, e.g., Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000); National Bank of Commerce v. Dow Chem. Co., 338 Ark. 752, 1 S.W.3d 443 (1999). Moreover, as noted by the court of appeals, Appellant’s argument challenges only the findings of the ALJ, not those made by the Commission. The ALJ’s findings are irrelevant for purposes of this appeal, as we are required by precedent to review only the findings of the Commission and ignore those of the ALJ. See, e.g., Scarbrough v. Cherokee Enters., 306 Ark. 641, 816 S.W.2d 876 (1991); Graham v. Turnage Empl. Group, 60 Ark. App. 150, 960 S.W.2d 453 (1998); Crawford v. Pace Indus., 55 Ark. App. 60, 929 S.W.2d 727 (1996). We thus affirm the Commission’s decision.

Brown and Thornton, JJ., dissent.

SMITH, J., not participating.

ROBERT L. Brown, Justice,

dissenting. The majority ustice, on technical grounds, even though the critical issue presented in this case is squarely before us. Ms. Matthews makes these points in the argument portion of her appellant’s brief:

1. The test for affirmance of the Commission’s opinion is substantial evidence, and there is no credible evidence supporting the Commission’s findings.
2. The Administrative Law Judge found that Ms. Matthews’s job duties involved rapid, repetitive motion.
3. Dr. Lyde’s findings constitute objective findings of carpal tunnel syndrome.
4. Dr. Lyde’s surgery removed Matthews’s symptoms of carpal tunnel syndrome.
5. The decision of the full Commission should be reversed.

Though she employs an economy of words, the argument she mounts is sufficient for this court to address the issue of whether the Commission’s decision is supported by substantial evidence.

I would reverse the Workers’ Compensation Commission’s denial of benefits in this case. Try as I might, I can find no evidence to support a conclusion that Ms. Matthews’s carpal tunnel syndrome arose out of any conduct other than her typing at work.

Her testimony before the Administrative Law Judge evidenced this work history:

•Human Resources Department Typed 3 to 4 hours a 1989- 1990 day

•Respiratory Therapy Typed 5 to 6 hours a 1990- 1992 day

•Davis Care Facility Typed 2 to 3 hours a 1992-1996 day

That Ms. Matthews suffered from carpal tunnel syndrome is not an issue. It is a given. Nor is the fact that Ms. Matthews did considerable typing at work for over seven years an issue. The only questions before the Commission were whether her condition arose out of her employment and whether her condition was established by objective medical findings. See Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). This brings into play the testimony of Dr. John O. Lytle, Ms. Matthews’s surgeon, who concluded in his medical reports that her “long history of being a typist” rendered her carpal tunnel syndrome a work-related problem. In a split decision with one member dissenting, the Commission dismissed Dr. Lytle’s opinion out of hand because it said that Dr. Lytle “misunderstood” Ms. Matthews’s work duties. The reason for this dubious conclusion is that she did tasks in addition to typing in her last employment at Davis Care Facility. Those other tasks included answering the telephone, filing, paperwork, interviewing, and running errands. Even still, her typing duties between 1992 and 1996, according to the Commission, comprised 25% to 40% of her work time. Why the Commission concluded that her carpal tunnel syndrome did not arise from typing at work simply because she had other duties to perform is beyond me.

Next, the majority and the Commission make much out of the fact that on cross-examination Ms. Matthews testified that she experienced pain and numbness in her right hand while walking on a track at the Wellness Center in 1994. On direct examination, she had testified that in February 1996, she would lie in bed and her right arm would go numb, and she would have pain shoot from the top part of her right shoulder down through her right arm and hand. Her right hand, she testified, would go completely numb, and she would wake up and have to shake it in order to go back to sleep. In November 1996, the pain had become so bad that she went to see Dr. Lytle, after conferring with her supervisor. To me, this describes the gradual progression of an insidious ailment from 1994 to 1996. What other explanation is there? The time in which her condition began to manifest itself is certainly not evidence that her condition was caused by anything other than typing. Nor does it diminish her credibility in any way that I can see.

The Jefferson Hospital Association counters in its brief that Ms. Matthews did much less typing than the average secretary and engaged in other work activities. Thus, it concludes that her carpal tunnel syndrome is not work related, and it hypothesizes that a cystic mass may have caused it. There is absolutely no proof in the record that the mass caused the carpal tunnel syndrome, and this was certainly not Dr. Lytle’s opinion. He concluded that her condition was caused by her typing. Nor is there proof offered by the Association of any other cause of the carpal tunnel syndrome other than typing.

I agree with Ms. Matthews that substantial evidence supporting a Commission’s decision must involve some credible evidence. The Commission dismissed Dr. Lytle’s opinion after speculating that he must not have known what she really did on the job. Using this springboard, the Commission then lept to the conclusion that the injury was not work related. More must be shown to invalidate this claim in my judgment. I am convinced that fair-minded persons would not have reached the same conclusion as the Commission. For these reasons, I respectfully dissent.

Thornton, J„ joins.

       Pursuant to Ark. Sup. Ct. R. 2-4, when a petition for review is granted, the parties are required to file fourteen additional copies of the briefs previously submitted to the court of appeals. Additionally, any party may request permission to submit a supplemental brief. No such request was made by Appellant here.

       The decision of the ALJ denying the claim was reached before this court decided Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).


author: DONALD L. Corbin, Justice. W.H. “Dub” Arnold, Chief Judge,

text:
    Clarence J. WORTH and Demaris E. Worth et al. v. CITY of ROGERS et al.

    99-89
    14 S.W.3d 471
    Supreme Court of Arkansas
    Opinion delivered April 13, 2000

      Tommy J Keith, Judge;

      The Evans Law Firm, P.A., by: Marshall Dale Evans and Stephanie Brodacz; and Hirsch Law Firm, PA., by: E. Kent Hirsch, for appellants.

      Clark & Spence, by: George R. Spence; Matthews, Campbell, Rhoads, McClure & Thompson, by: David R. Matthews; Jim Clark, Rogers Deputy City Att’y; and Robin Green, Benton County Att’y, for appellees.
   DONALD L. Corbin, Justice.

This is an illegal-exaction suit. stJ. ice. E. Worth, and other Appellants, are residents and owners of real property in Benton County, Arkansas. They filed suit on behalf of themselves and other Benton County property owners against the City of Rogers; Dr. Randall A. Spear, Superintendent of the Siloam Springs School District; Mary L. Slinkard, Benton County Clerk; David Green, Benton County Collector; and members of the Bentonville, Rogers, and Siloam Springs school boards, alleging that ad valorem property taxes were collected in violation of Amendment 59 of the Arkansas Constitution. This appeal involves issues of statutory and constitutional interpretation; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(l) and (b)(6). We reverse the trial court’s grant of summary judgment and remand this matter for trial.

History and Background

There are various constitutional and statutory provisions implicated in this appeal. In order to fully understand the arguments presented by the parties, it is helpful to first review a brief history of these provisions. In 1979, this court ordered that a statewide reassessment plan was to take effect by January 1, 1981, in order to ensure that property was taxed according to its value and that this value was uniform throughout the state. See Arkansas Pub. Serv. Comm’n v. Pulaski County Bd. of Equalization, 266 Ark. 64, 582 S.W.2d 942 (1979). In order to prevent a sudden and dramatic increase in tax bills as a result of this decision, Amendment 59 was added to the Arkansas Constitution. Amendment 59 provides that whenever a countywide reassessment results in an increase of the aggregate value of taxable real and personal property of ten percent or more over the previous year, each taxing unit must adjust or roll back taxes. The amendment goes on to state that the General Assembly shall establish the procedures to be followed by a county in making a countywide reappraisal. The General Assembly did establish such procedures in Ark. Code Ann. § 26-26-401 (Repl. 1997). That section provides:

The provisions of this subchapter relative to the adjustment or rollback of millage levied for ad valorem tax purposes shall be applicable only where there is a countywide or statewide reappraisal of property:
(1) Pursuant to court order; or
(2) Pursuant to directive of law enacted by the General Assembly; or
(3) When the reappraisal is initiated by the assessor, the county equalization board, by directive of the quorum court or upon request of one (1) or more taxing units of a county, and is determined and certified by the Assessment Coordination Division of the Arkansas Public Service Commission as constituting a comprehensive countywide reappraisal; or
(4) When ordered by or implemented by a county pursuant to a directive of the division or its successor agency.

Act 758 of 1995 was enacted and codified at Ark. Code Ann. § 26-26-305 (Repl. 1997) and required assessors to reappraise all property at least once every five years, while purporting to exempt such mandated countywide reappraisals from Amendment 59. Act 836 of 1997, codified at Ark. Code Ann. § 26-26-306 (Repl. 1997), repealed Act 758 and found, in its emergency clause, that Act 758 had placed an unfair burden on the taxpayers of Arkansas by directing county wide reappraisals of property in a manner which circumvented the rollback provisions of Amendment 59. Act 836 instituted provisions to remedy the unfair tax burden placed on tax payers as a result of Act 758. The present appeal stems from the interpretation and application of these laws.

The record reflects that in early 1990, Shirley Sandlin, the Benton County Assessor, began a reappraisal of the real estate in Benton County. This reappraisal included all of the taxing units within the county. Ms. Sandlin testified that she began the reappraisal in order to comply with the statutory duty that county assessors keep appraisal and assessment data and records current by maintaining the proper ratio of real property values to the market value. See Ark. Code Ann. § 26-26-302 (Repl. 1997). Ms. Sandlin wanted to ensure that the assessed value of the real and personal property in the county remained within eighteen to twenty percent of the true market value. At the time of this reappraisal, however, there was no procedure in place to separate newly discovered property for purposes of determining proper millage rates. The reappraisal was a cyclical review that took five years to complete. Upon completion, however, the entire county had been reappraised. This assessment was never certified by the Assessment Coordination Department (ACD), thus the provisions of Amendment 59 were never triggered and no rollbacks took place. Ms. Sandlin testified, however, that the reappraisal was not certified because she never sought such certification from the ACD. Furthermore, Appellants submitted affidavits stating that there was no formal certification process established through the ACD; rather, it was the duty of county officials to request such certification. Ms. Sandlin also testified that prior to undertaking the reappraisal in 1990 she discussed with Larry Crane, then director of the ACD, that a cyclical review would not trigger the provisions of Amendment 59.

Act 758 was passed by the General Assembly after completion of this reappraisal and triggered another reappraisal beginning in 1996. This reappraisal ended on October 23, 1997, and was ultimately certified by the ACD as a countywide reassessment, subject to the provisions of Amendment 59. The record indicates that pursuant to section 26-26-306, Benton County began, and completed the rollback resulting from the 1996-97 reappraisal. A rollback of property values was subsequently implemented for the reappraisal that occurred in 1997. The increases resulting from the 1996 portion of the reappraisal, however, were never included in the calculations used to determine the proper rollback, even though Ms. Sandlin acknowledged that she did not complete any one taxing unit in 1996.

Appellants filed suit in the circuit court of Benton County on April 25, 1997, challenging the property-tax collections made by the school districts and the City of Rogers as premature and occurring prior to the completion of the cyclical reappraisal. Appellants further alleged a failure to rollback the millage rates for the tax years 1995 and 1996. Appellants also filed suit in Benton County Court on May 2, 1997, challenging the county’s failure to calculate the rollback following the countywide reappraisals. The two actions were subsequently consolidated into the present matter.

Appellees filed a motion to dismiss pursuant to Ark. R. Civ. P. 12(b)(6), alleging that Appellants faded to state a claim upon which relief could be granted. Specifically, Appellees argued that Appellants failed to allege in any of their pleadings that the 1990-95 reappraisal was conducted pursuant to one of the four factors set out in section 26-26-401 and thus, were not entitled to any relief. Appellees further argued that Appellants were not entitled to any refund of taxes paid because they failed to allege that any taxes were paid under protest.

The trial court treated the motion to dismiss as one for summary judgment as to the assessment for the period from 1990-96. In so doing, the trial court found summary judgment to be appropriate because there were no genuine issues of material fact to be decided. Specifically, the trial court found that the cyclical reappraisal begun in 1990 and ending in 1996 did not constitute a countywide reappraisal, thus a rollback of millage rates was not required, nor was a refund of taxes required. The trial court also found that section 26-26-306 did not apply to the cyclical reappraisal begun in 1996 because the statute provided that taxes due and owing at the time of it’s effective date, March 26, 1997, would continue to be due and owing. Furthermore, the trial court found that while section 26-26-306 did apply to the property assessed in 1997, the assessor’s office had taken steps to effectuate a rollback, thus rendering this issue moot. However, the trial court also stated that while such issue was moot, Appellants were not barred from challenging the validity of the 1997 rollback in a separate proceeding. Finally, the trial court determined that Appellants were not entitled to any tax refund as such taxes had not been paid under protest.

Appellants set forth six points for reversal. They contend that: (1) the grant of summary judgment was error because controverted issues of material fact existed; (2) the 1996 reappraisal was a countywide appraisal for purposes of Amendment 59; (3) section 26-26-306 did not exempt the 1996 taxes from the provisions of Amendment 59; (4) the issue of the 1997 taxes was not moot; (5) the cyclical reappraisal from 1990-95 was a countywide reappraisal subject to the provisions of Amendment 59; and, (6) their taxes need not be paid under protest to be refundable.

Standard of Review

We have repeatedly held that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998); Pugh, 327 Ark. 577, 940 S.W.2d 445. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Wallace v. Boyles, 331 Ark. 58, 961 S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. George, 337 Ark. 206, 987 S.W.2d 710.

Genuine Issue of Material Fact

Appellants argue that summary judgment was inappropriate because they presented evidence that the reappraisals were subject to the provisions of Amendment 59. They further argue that this evidence established the existence of a genuine issue of material fact. Appellees argue on the other hand that there was no genuine issue of material fact because Appellants failed to allege that any reappraisal was conducted pursuant to one of the four procedures outlined in section 26-26-401, and thus Amendment 59 is inapplicable. We disagree with Appellees’ contention.

A review of the evidence reveals several conflicting statements made by Ms. Sandlin regarding the nature of these reappraisals. In her affidavit taken on July 10, 1997, Ms. Sandlin stated that she did not believe that the rollback provision of Amendment 59 applied to any of the taxing units in the county under the circumstances of appraisal conducted by her office for the period of time between 1990 and 1996. Yet, in a letter to Ms. Sandlin dated November 6, 1997, the director stated that the rollback provision was applicable to the reappraisal begun in 1996 and completed in 1997.

Other contradictions appear in Ms. Sandlin’s deposition as well. For instance, Ms. Sandlin makes numerous comparisons between the 1990-95 reappraisals and the 1996-97 reappraisals, including the fact that the same techniques were used in both, but then states that only the 1996-97 reappraisal was countywide for purposes of Amendment 59. Ms. Sandlin also stated that she reevaluated all the real property in Benton County between the years 1990-95 and 1996-97, but then later states that she did not believe that what she did in 1990-95 was a countywide reappraisal. Furthermore, Ms. Sandlin even stated that the 1990-95 reappraisal was more comprehensive than the 1996-1997 reappraisal. This series of conflicting statements and discrepancies indicates that Ms. Sandlin was not sure whether or not her actions triggered the provisions of Amendment 59.

This court has consistendy held that summary judgment is proper only when the claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. New Maumelle Harbor v. Rochelle, 338 Ark. 43, 991 S.W.2d 552 (1999). A mere suspicion in the mind of the party against whom summary judgment is sought will not create a genuine issue of material fact. Biedenharn v. Hogue, 338 Ark. 660, 1 S.W.3d 424 (1999). The pleadings, affidavits, and other materials in the present matter, however, give rise to more than a mere suspicion that the reappraisals conducted in Benton County were countywide reappraisals subject to the rollback provision of Amendment 59. There is conflicting evidence regarding the circumstances surrounding the reappraisals. Further development of these facts is required in order to determine the true nature of the reappraisals. Moreover, it is clear in the present matter that the trial court incorrecdy resolved any doubts or inferences regarding the nature of these reappraisals against Appellants instead of Appellees. Summary judgment, therefore, was not warranted as a matter of law. Adams, 333 Ark. 53, 969 S.W.2d 598; Pugh, 327 Ark. 577, 940 S.W.2d 445. Accordingly, the trial court erred in granting Appellees’ motion.

1996 Reappraisal

Appellants also contend that the trial court erred in finding that the portion of the reappraisal conducted in 1996 did not constitute a countywide reappraisal under Amendment 59 or section 26-26-401. They argue that such a finding was in direct conflict with the evidence that they presented showing that the 1996-97 reappraisal was conducted in accordance with section 26-26-401. Such evidence includes testimony from Ms. Sandlin that the reappraisal was initiated at her behest. She also testified that the reassessment begun in 1996 was a countywide reappraisal and was certified as such by the ACD. The certification letter from the ACD was introduced into evidence as well. Ms. Sandlin further testified that no single taxing unit was completed during the portion of the reappraisal conducted in 1996. Clearly, the evidence before the trial court established the fact that this reappraisal was a countywide reappraisal as set forth in section 26-26-401. Appellees not only failed to introduce evidence that the reappraisal was not countywide, but also conceded on the record that the reassessment begun in 1996 was subject to the provisions of Amendment 59. Accordingly, the trial court erred in finding that the reappraisal begun in 1996 was not a countywide reappraisal.

Act 836 and Amendment 59

Next, Appellants contend that it was error for the trial court to interpret section 26-26-306(e) as exempting 1996 taxes from the rollback provision of Amendment 59, and thus not entitling them to a refund. The trial court stated that because the taxes from 1996 were due and owing at the time the law took effect, the provisions of section 26-26-306 were inapplicable to those taxes. Appellants argue that the correct interpretation of this section is not that subsection (e) creates an exemption from millage rollbacks, but rather that those taxes due and owing at the time of the effective date need not be recalculated based on pre-assessment values as required by subsection (d).

Section 26-26-306 specifically states that any reappraisal begun in accordance with section 26-26-305, such as the 1996-97 Benton County reappraisal, shall be deemed to be a countywide reappraisal. Furthermore, if a county has begun such a reappraisal, it must use valuations that were applicable prior to the valuation adjustments pending completion of the countywide reappraisal. Section 26-26-306(e) states that:

Ad valorem taxes which are due and owing on March 26, 1997, shall continue to be due and owing and shall not be affected by the terms of this section.

This court has said that in determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). If the language of a statute is clear and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Id. The language in section 26-26-306(e) is unambiguous. The trial court, however, goes beyond the clear language of the section in ruling that the 1996 taxes were not affected by the rollback provision. In his. ruling, the trial court stated:

Section 2(e) of that Act provided that any ad valorem taxes due and owing on the effective date of the Act were not affected by the Act and would continue to be due and owing. The effective date of Act 836 was March 26, 1997. As taxes levied for 1996 were due and owing on that date (See Ark. Code Ann. Sec. 26-35-501(a)(1)), the provisions of Act 836 do not apply to those taxes. Additionally, as stated above, the portion of the second cycle of reappraisal began in 1996 did not constitute a countywide reappraisal under Amendment 59 and/or Ark. Code Ann. Sec. 26-26-401 et seq., and accordingly, a rollback of millage rates was not required for that year and Plaintiffs are not entitled to a refund of taxes paid for that year.

The trial court based its finding that a rollback was not required on an erroneous interpretation of section 26-26-306. Logic does not dictate reading this section in a manner that excludes the 1996 taxes from the rollback provision of Amendment 59.

The trial court’s interpretation of subsection (e) that any taxes due and owing are not subject to a rollback essentially carves out an exception to the requirements of Amendment 59. As this court held in Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998), the attempt of Act 758 to circumvent the rollback provisions of Amendment 59 was unconstitutional. Likewise, any attempt to now interpret the provisions of Act 836 in a manner inconsistent with the dictates of Amendment 59 is also invalid.

Mootness

On this point for reversal, Appellants argue that the trial court erred in finding that the issue surrounding the 1997 taxes was moot because the county had begun to complete the rollback of millage rates for the reappraisal ending in 1997. As Appellants correctly point out, for this issue to be moot there must be no controversy, thus rendering any decision in the case a mere advisory opinion. See Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998). In the present matter, Appellants allege that there is indeed a controversy because they presented evidence that the rollback was not conducted in accordance with the requirements of Amendment 59. Appellants introduced the calculations of the county clerk used by the taxing authorities to determine the amount of any rollback. Those calculations evidenced the fact that the increases from 1996 were completely excluded and the values from 1997 were the only ones considered. Appellants argue that this was invalid, thus creating a genuine issue of material fact that must be resolved. We agree.

The trial court made a decision regarding the disputed fact of whether the 1996 figures should be used in rollback calculations. This decision was based on its erroneous finding that 1996 was not a countywide reappraisal. Appellees had the burden of establishing that there was no disputed fact. They failed to meet this burden with any proof that the method of calculating the rollback did not violate Amendment 59. On the other hand, Appellants submitted proof to establish that the 1996 figures had been discarded. This court has said on numerous occasions that at the summary-judgment stage any doubts or inferences must be resolved against the moving party. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996). The trial court did not follow the law in this regard, and therefore, its ruhng on this point was erroneous.

1990-95 Reappraisal

Appellants argue that the 1990-95 reappraisal program was in fact a countywide reappraisal subject to the provisions of Amendment 59. The record indicates that the appraisal begun in 1990 was for the purpose of maintaining assessed values of real property at twenty percent of the fair-market value as required by the law. As previously pointed out, there is contradictory evidence regarding whether this reappraisal constituted a countywide reappraisal. The burden is on the moving party to establish that there are no genuine issues of material fact in controversy. Quirk, 323 Ark. 769, 918 S.W.2d 138. Appellees have clearly failed to meet this burden.

It is apparent in this case that Appellants were not given the benefit of the doubt. The only evidence put forth by Appellees to support their argument that this was not a countywide reappraisal was the fact that none of the four requirements of section 26-26-401 were met. Appellants on the other hand put forth proof to support their contention that it was a countywide reappraisal, including statements by the assessor that it was in fact countywide.

Appellants also contend that two of the requirements of section 26-26-401 were actually met. First, Appellants argue that subsection (2) which requires that the appraisal be at the “directive of law enacted by the General Assembly” is applicable because Sandlin testified in her deposition that she began the 1990 reappraisal in order to keep her assessment records current, as mandated by section 26-26-302. Appellants also argue that the appraisal conforms with subsection (3) because it was instigated at the behest of the assessor, even though the appraisal was never certified by ACD. Appellants contend that it is enough that the assessor initiated the reappraisal, and she should not be rewarded for failing to seek certification by exempting the appraisal from the scope of Amendment 59.

Appellees allege repeatedly that Amendment 59 provides that the General Assembly may determine which reappraisals qualify for Amendment 59. Amendment 59 states in relevant part:

(a) Whenever a countywide reappraisal or reassessment of property subject to ad valorem taxes made in accordance with procedures established by the General Assembly shall result in an increase in the aggregate value of taxable real and personal property in any taxing unit in this State of ten percent (10%) or more over the previous year the rate ... be adjusted or rolled back, by the governing body of the taxing unit, for the year for which levied as provided below. The General Assembly shall, by law, establish the procedures to be followed by a county in making a countywide reappraisal or reassessment of property which will, upon completion, authorize the adjustment or rollback of property tax rates or millage, as authorized hereinabove.

This court has said that, when interpreting a provision of the Arkansas Constitution, if the language of a provision is plain and unambiguous, each word must be given its obvious and common meaning, and neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Hoyle, 334 Ark. 529, 975 S.W.2d 843 (citing Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998)). This court went on to hold in Hoyle that section 26-26-401 did in fact describe the correct procedure for initiating a bona fide reappraisal, but further stated that establishing a procedure was far different from exempting county reappraisals from a millage rollback. Id.

Interpreting section 26-26-401 as Appellees urge, their argument essentially carves out an exception to Amendment 59. There was evidence in the record that established the fact that the ACD does not certify these reappraisals unless requested to do so by the assessor. If subsection (3) is interpreted to mean that a reappraisal is never countywide unless certified, then assessors in each county will be able to avoid the rollback provision of Amendment 59 by never seeking certification from ACD when conducting reappraisals. Such an interpretation defeats the intent and purpose of Amendment 59. While we do not presume to interpret the meaning of the statute at this stage of the proceedings, we point out that we have already concluded that there are issues of fact in controversy that need to be developed and those issues should not be resolved in a manner inconsistent with the spirit of Amendment 59 or this court’s prior case law.

Voluntary Payment of Taxes

For their final point on appeal, Appellants argue that the trial court erred in finding that taxes were not refundable unless paid under protest. First, Appellants contend that any taxes paid after this action was filed were paid involuntarily. This action was filed in 1997, thus, they argue that because the taxes paid in 1997 would have been for the tax year 1996, any taxes from that point on would certainly be involuntary. This court recently reaffirmed the rule that taxes paid voluntarily are not recoverable. Hoyle, 334 Ark. 529, 975 S.W.2d 843. Flowever, this court went on to hold in Hoyle that taxes paid after the filing of a complaint are deemed to be taxes paid under protest and, thus, not voluntary.

Appellees concede that the trial court erred with respect to this point, but argue that because the taxes levied for 1996 were not illegal, any issue of voluntary payment is rendered moot. They base this argument on the trial court’s erroneous determination that section 26-26-306 exempted the 1996 tax payments from the rollback provision of Amendment 59. Thus, AppeEees’ argument on this point fails.

AppeEants next argue that the trial court erred in finding that AppeEants were not entitled to a refund of any taxes unless they were paid under protest. They contend that the common law should govern because there is no statute that requires payment under protest in the present situation. While it is true that there is no apphcable statutory requirement for payment under protest, this court has held that it always foEows the common-law rule prohibiting the recovery of voluntarily paid taxes. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), cert. denied, 462 U.S. 1111 (1983). This court in Cash also held that this common-law rule applied to Elegal exactions. Likewise, in Mertz v. Pappas, 320 Ark. 368, 896 S.W.2d 593 (1995), this court held that taxes voluntarfiy paid prior to the time when a suit was filed were not recoverable. In Mertz, this court set out the underlying principle behind its rule:

When taxes are paid to a government they are deposited into that government’s general revenues and ordinarüy are spent within that tax year. However, when the government is put on notice that it may be required to refund those taxes, it can make the appropriate allowances for a possible refund. See Hercules, Inc. 319 Ark. at 707, 894 S.W.2d at 578. If we were to allow refunds for taxes voluntarily paid in previous years, it would jeopardize current and future governmental operations because current and future funds might be necessary for the refund.

Id. at 370, 896 S.W.2d at 594.

Appellants argue that voluntary is not used in its ordinary sense, but instead requires the existence of certain facts. Those facts include: (1) whether the payment was made with full knowledge of the facts; and (2) whether there was coercion involved. Appellants essentially argue that because a taxpayer must pay taxes or face the possibility of losing his property, coercion is a factor in this case. Appellees respond that this argument is without merit, even if it is determined that the taxes are illegal, and cites to cases holding coercion must amount to a situation where the taxpayer has no other relief available to him. See Chapman & Dewey Land Co. v. Board of Directors of St. Francis Levee Dist., 172 Ark. 414, 288 S.W. 910 (1926).

In Brunson v. Board of Directors of Crawford County Levee Dist., 107 Ark. 24, 27, 153 S.W. 828, 829 (1913), this court held that:

Where a party pays an illegal demand, with full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release (not to avoid) his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary, and cannot be recovered back.

The court went on to hold in Brunson that the payments were voluntary because there was no immediate danger that the appellant would lose his property or suffer irreparable harm for failing to pay his taxes. Conversely, in Paschal v. Munsey, 168 Ark. 58, 268 S.W. 849 (1925), this court held that taxes were not paid voluntarily where the tax collector had the authority to take and sell the appellants’ land for failing to pay their taxes.

In Chapman, 172 Ark. 414, 288 S.W. 910, this court held that coercion that renders a payment of taxes involuntary must consist of some actual or threatened exercise of power possessed by the party exacting or receiving payment over the person or property, from which the latter has no reasonable means of immediate relief, except by .making payment. Appellants contend that the statutory scheme governing the nonpayment of property taxes satisfies the requirement of coercion. They point to Ark. Code Ann. § 26-34-101 (Repl. 1997) to support their argument. This section provides in relevant part:

(a) Taxes assessed upon real and personal property shall bind them and be entitled to preference over all judgments, executions, encumbrances, or liens whensoever created.
(b) All taxes assessed shall be a Hen upon and bind the property assessed from the first Monday of January of the year in which the assessment shall be made and shall continue until the taxes, with any penalty which may accrue thereon, shall be paid.

Appellants further argue that the procedure for handling property not redeemed through payment of delinquent taxes provides additional support that their taxes were not paid voluntarily See Ark. Code Ann. § 26-37-101 (Repl. 1997).

Appellants also point out that their pleadings contain statements that any taxes paid were not paid with full knowledge of the facts that rendered the demand illegal. They contend that there was no information available prior to the filing of the lawsuit that would have alerted the taxpayer that the assessment was illegal. They argue that the issue of whether there was full knowledge is a fact in dispute. We agree. Clearly, there are genuine issues of material fact surrounding the payment of taxes resulting from the 1990-95 reappraisal. These issues are whether the tax payments were made as a result of coercion and whether the payments were made with full knowledge of the facts. Accordingly, these issues require further development at the trial-court level in order to determine whether the taxes were paid voluntarily.

In sum, because there are genuine issues of material fact surrounding the nature and scope of the Benton County reappraisals, the calculation of the rollback resulting from the 1996-97 reappraisal, as well as the voluntariness of taxes paid, we reverse the trial court’s grant of summary judgment and remand this matter for proceedings consistent with this opinion.

Reversed and remanded.

G. William Lavender, Spl. J., joins in this opinion.

Arnold, C.J., and Thornton, J., dissent.

Smith, J., not participating.

W.H. “Dub” Arnold, Chief Judge,

dissenting. I disagree udge, payment of taxes for the years 1990-95. The trial'judge ruled that the appellants were not entitled to a refund of these taxes as they were not paid under protest. This court has consistendy followed the common-law rule that prohibits the recovery of voluntarily paid taxes unless paid under protest.

The facts present in this case are similar to the facts in Mertz v. Pappas, 320 Ark. 368, 896 S.W.2d 593 (1995). The appellants in the instant case did not plead, nor did they prove that there were any uncollected delinquent taxes as a result of the taxes levied for the years 1990 through 1995. In Mertz, this court held:

Appellants do not have a claim because the taxes were voluntarily paid before suit was filed. We have consistently followed the common law rule that prohibits the recovery of voluntarily paid taxes, except where a recovery is authorized by a statute without regard to whether the payment is voluntary or compulsory. See, e.g., City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982); Searcy County v. Stephenson, 244 Ark. 54, 424 S.W.2d 369 (1968); Thompson v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S.W.2d 375 (1953). We follow this rule even when an illegal exaction claim is based on constitutional grounds. Cash, 277 Ark. at 504-05, 644 S.W.2d at 233. When recovery is authorized by statute upon payment “under protest,” we literally require a payment “under protest .’’ Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995). There is an exception for payment under coercion, see Cash, 277 Ark. at 505, 644 S.W.2d at 233; Chapman & Dewey Land Co. v. Board of Directors, 172 Ark. 414, 288 S.W. 910 (1926), but that exception is not applicable to the case at bar.
The reasoning underlying our cases is sound. When taxes are paid to a government they are deposited into that government’s general revenues and ordinarily are spent within that tax year. However, when the government is put on notice that it may be required to refund those taxes, it can make the appropriate allowance for a possible refund. See Hercules, Inc., 319 Ark. at 707, 894 S.W.2d at 578. If we were to allow refunds for taxes voluntarily paid in previous years, it would jeopardize current and future governmental operations because current and future funds might be necessary for the refund.

320 Ark. at 370, 896 S.W.2d at 594.

As recently as March of this year, this court handed down two decisions that reaffirmed the common-law rule that prohibits the recovery of voluntarily paid taxes. See Oxford v. Perry, 340 Ark. 577, 13 S.W.3d 567 (2000); Elzea v. Perry, 340 Ark. 588, 12 S.W.3d 213 (2000). We are bound to follow prior case law under the doctrine of stare decisis, and that policy is designed to lend predictability, as well as stability, to the law. Liberty Mutual Insurance Co. v. Thomas, 333 Ark. 655, 971 S.W.2d 244 (1998). In Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), this court held that precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. There is no reason to depart from established precedent in the instant case. In Lord v. Mazzanti, 339 Ark. 25, 2 S.W.2d 76 (1999), this court concluded that there was no reason for the court to reverse its interpretation of its own rules and throw precedent to the “four winds”; unfortunately, I believe that is exactly what the majority is doing in this case.

The majority acknowledges our holding in Mertz v. Pappas, supra, as well as other similar cases, yet hinges its reversal on the supposition that there are issues present of whether the tax payments were made as a result of coercion and whether the payments were made with full knowledge of the facts. In so doing, the majority accepts the argument of the appellants that since the tax is a lien on real property, any payment would be considered “under coercion.” This argument is absurd. If this were true, all tax payments would be paid “under coercion,” which logically is not the case. Although voluntary payments existed in, Mertz, Oxford, and Elzea, this court held that in each case voluntary payments could not be recovered. If the majority is correct, then we were wrong in each of the prior cases.

A taxpayer has the right to question an illegal tax but not years later, after voluntary payment. If a taxpayer wants to question real property taxes, he or she may do so in one of two ways — either the taxes must literally be paid “under protest,” or a suit must be filed before payment. It is neither fair nor right for a person to pay real property taxes while silently objecting to the payment, and then expect a refund years after the tax has been paid.

This court held in Mertz that if we were to allow refunds for taxes voluntarily paid in previous years, it would jeopardize current and future governmental operations because current and future funds might be necessary for the refund. That is exactly the situation present in the instant case. We know that school districts and governmental units customarily spend all of their money designated for a particular year. If these school districts have to repay tax money for the years of 1990 through 1995, how will they do this? Current funds, as well as future funds, will undoubtedly have to be used; this means the children will suffer. The districts will have to evaluate what will be taken away first: athletics, school activities, or personnel. All of this could be avoided by simply foEowing the common-law rule that there wiE be no recovery for taxes voluntarüy paid without protest. I would foEow the wisdom of the trial judge and affirm.

For these reason, I respectfuEy dissent.

Thornton, J., joins.


author: ROBERT L. Brown, Justice.

text:
    Bruce Lee ROWBOTTOM v. STATE of Arkansas
    CR 98-005
    13 S.W.3d 904
    Supreme Court of Arkansas
    Opinion delivered April 13, 2000

      David S. Clinger, Judge;

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

The appellant, Bruce Lee ticeappeals pro . from denial of his petition for postconviction relief under Ark. R. Crim. P. 37. He raises multiple issues in support of his petition for a new trial, but none of them has merit. We affirm the order of the trial court.

In 1996, Rowbottom was tried with standby counsel on one count of possession of methamphetamine with intent to deliver, one count of possession of marijuana with intent to deliver, one count of possession of drug paraphernalia, one count of felon-in-possession-of-a-firearm, and one count of simultaneous possession of a controlled substance and firearm. He was convicted on all counts and sentenced to a concurrent term of forty-five years in prison. We affirmed the convictions and the sentence. Rowbottom v. State, 327 Ark. 76, 938 S.W.2d 224 (1997). On April 2, 1997, Rowbottom filed the Rule 37 petition which is the subject of this appeal. On the same day, he moved for leave to file an amended and enlarged Rule 37 petition. The trial court denied his motion, and on December 4, 1997, the trial court entered its order denying the petition in toto without first conducting a hearing.

Rowbottom first contends in this appeal that the trial court erred in denying him leave to file an amended Rule 37 petition in excess of the ten page limit provided in Ark. R. Crim. P. 37.1(e). He further claims that without fifteen additional pages raising five new issues, as he requested, his constitutional rights were violated. We disagree. Our Rules of Criminal Procedure do allow for the amendment of Rule 37 petitions, but only with leave of the court. Ark. R. Crim. P. 37.2(e). And with regard to expanded page limits, this court has held that limiting Rule 37 petitions to ten pages in length is an entirely reasonable restriction on petitioners for postconviction relief and does not violate their due process rights. See Washington v. State, 308 Ark. 322, 823 S.W.2d 900 (1992). In the instant case, the trial court found that Rowbottom failed to set forth any legitimate ground or justification for filing the enlarged petition. Similarly, on appeal, he fails to present us with any cogent reason for why the trial court’s finding was clearly erroneous. We affirm the trial court on this point.

On a second procedural point, Rowbottom contends that he was entitled to a hearing before the trial court on his Rule 37 petition and that it was error for the trial court to deny him a hearing. Again, we disagree. Our rules provide on this point:

If the petition and files and record of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any part of the files, or records that are relied upon to sustain the court’s findings.

Ark. R. Crim. P. 37.3(a).

In reliance on this rule, this court has held that a court is not required to conduct an evidentiary hearing if it can conclusively determine from the record that the petitioner’s contentions are meritless. Stewart v. State, 295 Ark. 48, 746 S.W.2d 58 (1988); see also Brown v. State, 291 Ark. 143, 722 S.W.2d 845 (1987) (trial court must look at entire record when denying a petition without a hearing). Here, as will be shown subsequently in this opinion, virtually all of the points raised in the Rule 37 petition are barred from our consideration for failure to raise them before the trial court at the original trial. Hence, the trial court did not err in failing to conduct an evidentiary hearing.

There is one issue, however, that Rowbottom contends is a fundamental claim which he was not required to raise at the original trial in order to preserve it. That is his double-jeopardy claim. Rowbottom is correct on this point. In Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988), this court held that it was not appropriate to raise trial errors, including constitutional errors, for the first time in a Rule 37 proceeding. At the same time, we acknowledged in Finley that issues that are “so fundamental as to void the judgment absolutely,” will not be waived by failure to raise them at trial. 295 Ark. at 363, 748 S.W.2d at 647, citing Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987).

Two of our later cases touched on this issue. In Jeffers v. State, 301 Ark. 590, 591, 786 S.W.2d 114 (1990), this court explained:

A ground sufficient to void a judgment of conviction must be one so basic that it renders the judgment a complete nullity, for example, a judgment obtained in a court lacking jurisdiction to try the accused, or a conviction obtained in violation of an accused’s rights against double jeopardy. (Emphasis ours.)

Additionally, in Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996), the issue involved in the Rule 37 petition was denial of a trial by a jury of twelve members. In Collins, we noted that we had made an exception to our general rule that errors, including constitutional errors, must be raised before the trial court and on direct appeal. That exception is for errors that are so fundamental as to render the judgment of conviction void and subject to collateral attack. Citing Finley v. State, supra; Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980). We concluded that the right to a twelve-member jury was a fundamental right, the violation of which rendered the judgment void and subject to collateral attack.

It is true, as the State points out, that in Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996) (plurality opinion), we held that denial of counsel is an issue that must be raised on direct appeal to be preserved and not for the first time in a Rule 37 petition. Still and again, we have stated to the contrary regarding trial by jury and double jeopardy. We hold, therefore, that double-jeopardy protection is a fundamental right and that Rowbottom can raise his double-jeopardy claim for the first time in his Rule 37 petition.

We turn next to the question of whether his double-jeopardy rights have been violated. The apposite statute reads:

(a) When the same conduct of a defendant may establish the commission of more than one (1) offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense if:
(1) One offense is included in the other, as defined in subsection (b) of this section....
(b) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(1) It is established by proof of the same or less than all of the elements required to establish the commission of the offense charged....

Ark. Code Ann. § 5-1-110(a)(1) & (b)(1) (Repl. 1997).

The two statutes at issue in the instant case are Ark. Code Ann. § 5-64-401(a)(l)(i) (Supp. 1999) (possession with intent to deliver a controlled substance) and Ark. Code Ann. § 5-74-106 (Repl. 1997) (simultaneous possession of drugs and firearms). Section 5-64-101(a)(l)(i) reads:

(a) Except as authorized by subchapters 1-6 of this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance.
(1) Any person who violates this subsection with respect to:
(i) A controlled substance classified in Schedules I or II, which is a narcotic drug or methamphetamine, and by aggregate weight, including adulterants or diluents, is less than twenty-eight grams (28 g.), is guilty of a felony and shall be imprisoned for not less than ten (10) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding twenty-five thousand dollars ($25,000). For all purposes other than disposition, this offense is a Class Y felony.

Ark. Code Ann. § 5-64-401 (a)(l)(i) (Supp. 1999). Section 5-74-106 reads:

(a) No person shall unlawfully commit a felony violation of § 5-64-401 or unlawfully attempt, solicit, or conspire to commit a felony violation of § 5-64-401 while in possession of:
(1) A firearm....

Ark. Code Ann. § 5-74-106(a)(l).

At first blush, it would seem that trial and conviction for these two offenses violates §§ 5-l-110(a)(l) and (b)(1) because possession of a controlled substance with intent to sell is an included offense within simultaneous possession of a controlled substance and a firearm. In a case that is somewhat analogous to the case at hand, we held that a defendant/appellant could not be convicted of both felony murder with aggravated robbery as the underlying felony, and aggravated robbery separately, because such a double conviction violated § 5-l-110(a)(l). See Ballew v. State, 298 Ark. 175, 766 S.W.2d 14 (1989).

Our analysis, however, does not end with the Ballew case. Both the United States Supreme Court and this court have made it

clear that it is the legislature that determines crimes, fixes punishments, and has the authority to impose cumulative punishments for the same conduct. See Missouri v. Hunter, 459 U.S. 359 (1983); Albernaz v. United States, 450 U.S. 333 (1981); Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996). In Sherman, we said:

The United States Supreme Court has stated that legislatures are free under the Double Jeopardy Clause to define crimes and fix punishments, but that courts may not impose more than one punishment for the same offense. Brown v. Ohio, 432 U.S. 161 (1977). That Court has further stated that, “Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, ..., the question under the Double Jeopardy Clause whether punishments are multiple is essentially one of legislative intent.” Ohio v. Johnson, 467 U.S. 493, 499 (1984).

Sherman, 326 Ark. at 165, 931 S.W.2d at 424-425.

In Missouri v. Hunter, the Court reversed the Missouri Court of Appeals and held that Hunter’s double jeopardy rights had not been violated. At trial, Hunter had been convicted and sentenced for both armed criminal action and first-degree robbery. The Missouri Court of Appeals held that armed criminal action and first-degree robbery constituted the same offense under Blockburger v. United States, 284 U.S. 299 (1932). The Court reversed after concluding that there was no double jeopardy violation. In reaching this conclusion, the Court stated: “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Id. at 366.

The Court then held:

Our analysis and reasoning in Whalen [v. United States 445 U.S. 684 (1980),] and Albernaz lead inescapably to the conclusion that simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen is not a constitutional rule requiring courts to negate clearly expressed legislative intent. Thus far, we have utilized that rule only to limit a federal court’s power to impose convictions and punishments when the will of Congress is not clear. Here, the Missouri Legislature has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments.
Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

Id. At 368-369.

In the case' before us, the issue is whether the General Assembly intended for the two offenses to be separate offenses where the same conduct violates two statutory provisions. See Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995). Proscription against simultaneous possession of drugs and firearms is found in the Arkansas Criminal Gang, Organization, or Enterprise Act. Act 1002 of 1993. In that Act, the General Assembly stated its reasons for enacting this section was to deter and punish ongoing organized criminal activity and “to provide for penalties that will punish and deter organized ongoing criminal activity.” Ark. Code Ann. § 5-74-102; see also McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). But in addition to that, what is most telling is that § 5-74-106 specifically refers to committing a violation of § 5-64-401, while possessing a firearm. The General Assembly has thereby made it clear in our judgment that it wishes to assess an additional penalty for simultaneously possessing controlled substances and a firearm. We hold that there was no double jeopardy violation.

The remaining issues raised by Rowbottom in his Rule 37 petition are:

• Denial of counsel at trial because he did not voluntarily and intelligently waive counsel.
• Failure to suspend trial proceedings for a mental evaluation.
• Ineffective assistance of counsel by standby counsel.
• Failure to charge under the criminal information and to instruct the jury on the essential elements of simultaneous possession of drugs and a firearm under § 5-74-106(a).
• Discovery violation by the prosecution for not disclosing its intention to introduce a vitamin and preservative.
• Erroneous rulings by trial court on admissibility of evidence.
• Improper closing argument by prosecutor.
• Improper use of prior conviction for impeachment.
• Improper use of prior conviction for enhancement of sentence.

All of these issues axe waived due to Rowbottom’s failure to raise them either at trial or on direct appeal. Mackey v. State, 286 Ark. 188, 690 S.W.2d 353 (1985). In the case of his contention that he received ineffective assistance of counsel, his abstract of the testimony, objections, and rulings fails to advise this court sufficiently of any deficiency. See Ark. Sup. Ct. R. 4-3 (b).

Affirmed.

CORBIN, J., not participating.


text:
    Johnny Paul DODSON v. STATE of Arkansas
    CR 99-1088
    14 S.W.3d 489
    Supreme Court of Arkansas
    Opinion delivered April 13, 2000

      L.T. Simes II, Judge;

      James N. Miller; and W. Frank Morledge, P.A., for appellant.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Juin this criminal case.

This is the second appeal in this criminal case. appellant, Johnny Paul Dodson, appeals his second conviction for the offenses of possession of a controlled substance (methamphetamine) with intent to deliver and possession of a controlled substance (marijuana). He asserts five points of error. We find no error and affirm.

Mr. Dodson was arrested during a traffic stop in Brinkley, Arkansas, while driving a car that was owned by Gwen McCullum. Mr. Dodson was accompanied by two other passengers: James Martin and Ricky Bennett. Officer Ed Randle of the Brinkley Police Department had stopped the vehicle driven by Mr. Dodson after he observed the vehicle make a right turn at a high rate of speed without a turn signal, and after he noticed something being thrown out of the passenger window, which later turned out to be a cigarette butt. The officer approached the driver’s side of the vehicle and asked to see Mr. Dodson’s driver’s license. Mr. Dodson responded that he did not have a driver’s license. Shortly thereafter, Officer Randle ordered Mr. Dodson and his passengers out of the car. Mr. Dodson was then taken into custody and placed in the officer’s patrol unit.

When the vehicle no longer had any occupants, Officer Randle could see a brown leather satchel sticking out from under the right side of the passenger’s seat, where Mr. Bennett had been sitting. During a search of the vehicle, Officer Randle opened this leather satchel and found green vegetable matter that field-tested positive for marijuana and “a granule type matter, kind of off-white brownish” that field-tested positive for methamphetamine. The methamphetamine had been packaged in several smaller packets and then placed inside the leather satchel. Upon finding the contraband, Officer Randle glanced toward his patrol unit and saw some wild movement. He returned to his unit, removed Mr. Dodson from the vehicle, and noticed a large bulge in the crotch area of Mr. Dodson’s pants. In order to be sure the bulge was not a weapon, Officer Randle reached inside Mr. Dodson’s pants and found $6,000.00 cash.

Mr. Dodson was charged by information with three felony offenses, namely possession of methamphetamine with intent to deliver the substance, Class Y felony; possession of marijuana, Class C felony, and being a felon in possession of a firearm, Class D felony. He was also charged with two traffic violations. Mr. Dodson was tried before a jury and convicted on all counts with the exception of the firearm charge. Judgment was entered by the trial court, sentencing him to a term of imprisonment for fifty years. We affirmed that judgment in Dodson I, but stated that “nothing in this opinion should be construed as prohibiting Appellant from filing a proper petition for postconviction relief pursuant to A. R. Cr. P. 37.” Dodson I, 326 Ark. at 644, 934 S.W.2d at 202.

On February 3, 1997, Mr. Dodson filed a petition for post-conviction relief pursuant to Ark. R. Crim. P. 37 in the Circuit Court of Monroe County and alleged ineffective assistance of counsel. The trial court entered an order on June 16, 1997, which granted the Rule 37 petition and granted Mr. Dodson a new trial. Prior to his second trial, Mr. Dodson filed a motion in limine seeking to suppress all items seized during the search of the car. That motion was denied by the trial court after it held a suppression hearing on February 8, 1999. Mr. Dodson’s second jury trial began on February 10, 1999, and culminated in his second conviction on the felony offenses of possession of methamphetamine with intent to deliver and possession of marijuana, and the misdemeanor traffic offenses. He was sentenced to twenty-five years in the Arkansas Department of Correction on the felony offense of possession of methamphetamine with intent to deliver, and he received fines totaling $5,300 on the other felony and misdemeanor offenses. On appeal, Mr. Dodson raises five points of error.

1. Sufficiency of the Evidence

Mr. Dodson contends that his motion for a directed verdict of acquittal on the drug possession charges should have been granted. Although this argument is Mr. Dodson’s fifth point on appeal, the preservation of an appellant’s right to freedom from double jeopardy requires that we review the sufficiency of the evidence before addressing other alleged trial error. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); Lee v State, 326 Ark. 229, 931 S.W.2d 433 (1996). Specifically, Mr. Dodson contends that “if the testimony of Ricky Bennett is disregarded, as argued in [Mr. Dodson’s second point on appeal], the proof at trial was insufficient to establish [Mr. Dodson’s] constructive possession of the drugs.” However, in determining the sufficiency of the evidence, we review all of the evidence that was introduced at trial, and we disregard any alleged trial errors. Lee v. State, supra; Eichelberger v. State, 323 Ark. 551, 916 S.W.2d 109 (1996). Consequently, the testimony of Ricky Bennett cannot be excluded from our review of the sufficiency of the evidence. By making his argument contingent on the exclusion of Mr. Bennett’s testimony, Mr. Dodson apparently concedes that there was substantial evidence to support the drug convictions when Mr. Bennett’s testimony is considered.

We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id.

It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). Possession of drugs can be proved by constructive possession. Id. Although constructive possession can be implied when the drugs are in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Id. There must be some other factor linking the accused to the drugs:

Other factors to be considered in cases involving automobiles occupied by more than one person are: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused’s personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion or control over it; and (5) whether the accused acted suspiciously before or during the arrest.

Id. at 207, 884 S.W.2d at 600.

In this case, there was joint occupancy of the automobile, but Mr. Dodson exercised dominion or control over the vehicle, in that he was the driver. Furthermore, although the contraband was not found on the same side of the vehicle where Mr. Dodson was sitting, it was found in close proximity to Mr. Dodson. Moreover, Mr. Dodson acted suspiciously during his arrest, as evidenced by Officer Randle’s testimony that Mr. Dodson was making wild movements while seated in the patrol unit. Additionally, Officer Randle found approximately $6,000 in cash hidden on Mr. Dodson’s person. All of these factors link Mr. Dodson to the drugs that were found in the car. Finally, when we consider the testimony of Ricky Bennett in the light most favorable to the State, there was substantial evidence of Mr. Dodson’s possession of the drugs. According to Mr. Bennett’s testimony, he had previously testified at his own trial that his uncle, Mr. Dodson, handed him the drugs that were found under the seat. Based on this record, we cannot say that the trial court erred when it denied Mr. Dodson’s motion for a directed verdict.

2. Authentication of Evidence

Mr. Dodson argues that the admission into evidence of (1) a small Ziplock bag containing several smaller bags of off-white particles, and (2) a report by the Arkansas State Crime Laboratory identifying the contents of the Ziplock bag as methamphetamine, was an abuse of discretion by the trial court. In support of this argument, he asserts that the State failed to properly authenticate the substance in the Ziplock bag because of varying descriptions of the substance by State’s witnesses. In response, the State suggests that Mr. Dodson’s argument is barred because his abstract only indicates that he made a general objection to the challenged exhibits when they were offered into evidence. We agree.

The record on appeal is confined to that which is abstracted. Martin v. State, 337 Ark. 451, 989 S.W.2d 908 (1999). It is the appellant’s burden to provide both a record and an abstract sufficient for appellate review. Porter v. Porter, 329 Ark. 42, 945 S.W.2d 376 (1997). We will not entertain an argument when it cannot be determined from the abstract what arguments were made to the lower court. Id. Here, Mr. Dodson’s abstract merely states that the challenged exhibits “were admitted into evidence over the objection of the defendant.” From such general language, we cannot determine what arguments were made to the lower court. Furthermore, this court has made clear that a specific objection is necessary in order to preserve an issue on appeal. Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998).

We note that Mr. Dodson’s abstract indicates that his motion for a directed verdict was partially based on “the discrepancy of descriptions of the controlled substance [.]” We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). Thus, Mr. Dodson was not challenging the admissibility of particular evidence when he sought, by a directed-verdict motion, to have the charges dismissed because of the State’s purported failure to authenticate the challenged exhibits. According to Mr. Dodson’s abstract, this appeal is the first time he argues that the challenged exhibits were inadmissible because of the State’s alleged failure to authenticate them. We will not address arguments raised for the first time on appeal. Tucker v. State, 336 Ark. 244, 983 S.W.2d 956 (1999). Even if Mr. Dodson’s directed-verdict motion were interpreted as an authentication objection to the admissibility of the challenged exhibits, his argument would be barred because, according to his abstract, the authentication objection was not made when the State offered those exhibits into evidence. Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992).

We therefore conclude that Mr. Dodson is procedurally barred on the authentication issue. Accordingly, we must affirm on that issue.

3. Fifth Amendment Privilege

Mr. Dodson next argues that the trial court erred when it allowed the State to call Mr. Dodson’s nephew, Ricky Bennett, as a witness. Specifically, he contends that the trial court should have allowed Mr. Bennett to invoke his Fifth Amendment privilege against self-incrimination. Alternatively, Mr. Dodson asserts that the trial court erred when it refused to grant a mistrial during Mr. Bennett’s testimony.

Mr. Bennett was a passenger in the car that Mr. Dodson was driving when he was arrested. Mr. Bennett was also arrested and charged with possession of drugs. He was, however, tried separately and acquitted of possession of the drugs found in the satchel under the passenger seat, but convicted of possession of drugs found on his person. Mr. Bennett’s trial occurred after Mr. Dodson’s first trial and before the second trial.

The State called Mr. Bennett as a witness at Mr. Dodson’s second trial. Upon taking the stand, Mr. Bennett immediately asserted his Fifth Amendment right not to incriminate himself. After the trial court allowed the State to begin its direct examination of Mr. Bennett, he answered several questions about events leading up to the traffic stop. However, when the State asked whether anything transpired between the witness and Mr. Dodson just before the vehicle was stopped by the police officer, Mr. Bennett once again asserted his Fifth Amendment privilege against self-incrimination. At that point, Mr. Dodson objected to the trial court ordering Mr. Bennett to answer the State’s question. Mr. Dodson also moved for a mistrial on grounds that the State improperly called Mr. Bennett as a witness knowing that the witness would invoke his Fifth Amendment privilege. The State responded that Mr. Bennett did not have the right to invoke the Fifth Amendment because he had already been acquitted of possession of the drugs found in the satchel. Thus, according to the State, he was not in jeopardy and could not incriminate himself on that drug charge. Mr. Dodson countered that Mr. Bennett had given conflicting testimony at his own trial and at Mr. Dodson’s first trial, such that he could be charged with perjury if he were forced to affirm either of his prior statements. The trial court overruled Mr. Dodson’s objection and denied his motion for mistrial.

The State proceeded with its direct examination of Mr. Bennett. Although the trial court instructed the witness to answer the State’s questions, he persistently refused to respond to the State’s questions regarding his prior testimony, and, at one point, began once again to assert the Fifth Amendment in response to the State’s questions. The trial court then removed the jury from the courtroom and allowed questioning to continue outside of the jury’s presence. The trial court also advised Mr. Bennett that he would be held in contempt of court if he persisted in asserting the Fifth Amendment. Mr. Bennett stopped invoking the Fifth Amendment at that point, but continued to be unresponsive. The State’s questioning continued until Mr. Bennett finally testified that someone had handed him the package and he put it under the seat that night. He could not, however, say whether his uncle, Mr. Dodson, was the person who handed him the package. While he admitted to testifying at his own trial that Mr. Dodson gave him the package, Mr. Bennett now testified that he could not recall who gave him the package.

The State’s questioning of Mr. Bennett resumed thereafter in the presence of the jury:

Q. Mr. Bennett, on the night of September the 11th, 1995, where did you get the drugs that were found beneath your seat on the passenger side of that vehicle?
A. In my testimony in my trial, I stated that those drugs were handed to me by my uncle.
Q. Is that the truth as you recall it?
A. That is my testimony at my trial that happened at my trial.
Q. Is that the truth as you recall it, sir?
A. That was my testimony.

The State then tendered the witness, and Mr. Dodson’s attorney proceeded to conduct a thorough and extensive cross-examination of Mr. Bennett. During that cross-examination, Mr. Bennett admitted that he had given conflicting testimony regarding the drugs in the leather satchel:

Q. ... [I]n October of 1995, two months after this occurred, you gave sworn testimony that you knew nothing about any drugs, didn’t you?
A. Yes, sir.
Q. That no one ever conversated about any drugs, no one ever said anything about any drugs, you didn’t know how they got into the car. I’m sorry?
A. Yes, sir.
Q. But then in your trial in June, you said that someone threw the drugs and hit you in the chest, is that right?
A. Yes, sir.
Q. Is there anyway to know if you’re telling the truth if (sic) the first time you gave sworn testimony or the second time? I’m sorry? Your testimony was directly opposed, wasn’t it? One was “I don’t know where the drugs came from.” The other one was “They were someone else’s drugs,” isn’t that right?
A. (Inaudible response.)
Q. Answer out loud please.
A. Yes.
Q. Now, you don’t want to say they were your drugs, do you? If they were your drugs, you could be looking — you could have been looking at 10 to 40 or life, couldn’t you? Answer out loud please [.]
A. Yes, sir.

On redirect-examination, the State asked Mr. Bennett “what is right now is [sic] the truth. Where did these drugs come from?” Mr. Bennett responded that “[m]y testimony that I gave in my trial that I said my uncle gave me the drugs or handed the drugs to me...” was the truth. Mr. Dodson then closed with the following recross-examination:

Q. So as I understand this, that is the truth today?
A. Yeah.
Q. According to Ricky Bennett. And according to Ricky Bennett when this was fresh in your mind in 1995, the truth was that you didn’t know any drugs were in the car, wasn’t it?
A. Nope, that’s right.
Q. That’s exacdy what you testified to back then, didn’t you?
A. What I testified.
Q. You didn’t see anybody with any drugs, you didn’t know any drugs were in the car, you didn’t know anything about satchel; isn’t that right?
A. That’s right.
Q. Which truth do we believe?

Finally, Mr. Bennett’s testimony concluded when the trial judge questioned the witness as follows:

The COURT: Mr. Bennett, I have just this one question. I believe you testified — today, you have testified, that at your trial your uncle gave you the drugs that were found under the seat. Is that true?
The Witness: Yes, it is.

On appeal, Mr. Dodson contends that the refusal of the trial court to recognize Mr. Bennett’s invocation of the Fifth Amendment was error, “resulting in the forced adoption by the witness of testimony favorable to the State.” The State responds that Mr. Dodson does not have standing to assert Mr. Bennett’s Fifth Amendment rights. We agree.

A witness’s right not to incriminate himself or herself is personal, and another person does not have standing to assert a violation of the witness’s Fifth Amendment rights. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988); Shinsky v. State, 250 Ark. 620, 466 S.W.2d 911 (1971). Consequently, Mr. Dodson does not have standing to assert that Mr. Bennett’s right not to incriminate himself was violated. In addition to asserting Mr. Bennett’s Fifth Amendment rights, Mr. Dodson also contends that he was deprived of his own Sixth Amendment right to confront witnesses against him when the State was allowed to call Mr. Bennett knowing that he would invoke the Fifth Amendment.

We have held that neither the prosecution nor the defense is permitted to call a witness knowing that the witness will claim his testimonial privilege. Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990); Kiefer v. State. 297 Ark. 464, 468, 762 S.W.2d 800, 801 (1989). In Kiefer, we went on to explain that the “evil in this situation lies not in the mere calling of a witness but in the asking of a series of questions, each of which she refuses to answer on privilege against self-incrimination grounds, thus creating the equivalent of testimony in the minds of the jurors.” Id. at 469, 762 S.W.2d at 802 (citing Sims v. State, 4 Ark. App. 303, 631 S.W.2d 14 (1982) and Douglas v. Alabama, 380 U.S. 415 (1965)). Likewise, in Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985), we adopted the following language in holding that the trial court erred when it allowed the prosecutor to call a witness even though both the court and the prosecutor knew that the witness would be advised to invoke her Fifth Amendment privilege against self-incrimination:

The evil in the non-testimony of such a witness is not the mere calling of the witness, but the obvious inferences drawn by a jury to a series of questions, to all of which the witness refuses to answer on Fifth Amendment grounds. In that case the questions themselves “may well have been the equivalent in the jury’s mind of testimony.” Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 13 L.Ed.2d 934, 937 (1965). Such improper questioning, not technically being testimony at all, deprives an accused of his right to cross-examine the witnesses against him as guaranteed by the Confrontation Clause of the Sixth Amendment to the federal constitution [made obligatory on the states by the Fourteenth Amendment.] Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Douglas v. Alabama, supra.

Foster v. State, 285 Ark. at 370, 687 S.W.2d at 832 (quoting from Sims v. State, supra). Thus, allowing the State to call a witness while knowing that witness will invoke his or her Fifth Amendment privilege, deprives the defendant of his Sixth Amendment right to cross-examine the witnesses against him.

In Douglas v. Alabama, the witness called by the State invoked his privilege and refused to answer questions. Douglas v. Alabama, 380 U.S. 415 (1965). The trial judge ruled that the privilege was not applicable and ordered him to answer, but the witness persisted in refusing to answer. Id. The trial judge then allowed the State to treat the witness as a hostile witness and conduct a cross-examination, during which the State produced an alleged confession signed by the witness and proceeded to read from the document “under the guise of cross-examination to refresh [the witness’s] recollection” Id. at 416. The State’s attorney would pause after every few sentences and ask the witness if he had made the statement, and each time, the witness would assert the privilege and refuse to answer. Id. This form of questioning continued until the entire document had been read. Id. The United States Supreme Court held that the “petitioner’s inability to cross-examine [the witness] as to the alleged confession denied him the right of cross-examination secured by the Confrontation Clause.” Id. at 419. The witness’s reliance upon the privilege created a situation in which the jury might improperly infer that the statement had been made and that it was true. Id. Due to the fact that the State’s attorney was not a witness, the inference from his reading that the witness made the statement could not be tested by cross-examination. Id. Similarly, the witness could not be cross-examined on a statement imputed to him but not admitted by him. Id.

The instant case is distinguishable from Douglas v. Alabama. There, the Court stated that “effective confrontation of [the witness] was possible only if [he] affirmed the statement as his. However, [he] did not do so, but relied on his privilege to refuse to answer.” Id. at 420. Here, while the witness initially attempted to rely on his privilege, he eventually began to cooperate and, in the end, affirmed his earlier testimony. Moreover, Mr. Dodson’s attorney was able to fully cross-examine Mr. Bennett about the conflicting testimony he had given at his own trial and at Mr. Dodson’s first trial. Thus, Mr. Bennett affirmed his earlier testimony, and Mr. Dodson accomplished effective confrontation of the witness. We therefore hold that Mr. Dodson was not deprived of his Sixth Amendment right to cross-examine the witness. Accordingly, we affirm on this point.

4. Trial Court’s Statement to the Jury

Mr. Dodson argues that the trial court erred in making the following statement to the jury during voir dire: “ . . . with possession of Schedule IV controlled substance namely marijuana in violation of Arkansas Code Annotated 5-64-101, a Class C felony ...” According to Ark. Code Ann. § 5-64-401(c), possession of marijuana is a class C felony only if it is the defendant’s third or subsequent drug conviction. Mr. Dodson contends therefore that the trial court’s reference to a class C felony effectively told the jury that he had two prior drug convictions, and thereby violated the principle that prior convictions should not be disclosed to the jury until guilt is determined. In response, the State suggests that Mr. Dodson’s argument is barred because he failed to abstract the trial court’s statement to the jury or his objection to the statement. We agree.

The challenged statement appears for the first time in the argument portion of Mr. Dodson’s brief. The record on appeal is confined to that which is abstracted and cannot be contradicted or supplemented by statements made in the argument portions of the briefs. Jones v. State, 327 Ark. 85, 937 S.W.2d 633 (1997). In addition, transcript or record references in the appellant’s argument are no substitute for a proper abstract. Id. Mr. Dodson also states for the first time in the argument portion of his brief that the trial court made the statement “over the objection of the Appellant,” but “such scattered references are not a substitute for a proper abstract.” Moncrief v. State, 325 Ark. 173, 176, 925 S.W.2d 776, 778 (1996). Accordingly, we must affirm on this point without reaching the merits.

5. Admonishment by the Trial Court

For his final point on appeal, Mr. Dodson asserts that the trial court improperly admonished the jury after the State made an untimely objection to Mr..Dodson’s closing argument. The State responds that this point must be affirmed because Mr. Dodson did not abstract his closing argument, the State’s objection, and the trial court’s admonition to the jury. The State is correct. This failure to abstract precludes us from considering Mr. Dodson’s final point on appeal. See Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995).

Affirmed.

        Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996) (Dodson I).

       Officer Randle testified at the suppression hearing that Mr. Dodson reached toward a gun that another officer had seen in the back seat of the vehicle. This action by Mr. Dodson prompted Officer Randle to draw his weapon and order Mr. Dodson and his passengers out of the vehicle. Officer Randle then proceeded to search the vehicle in order to make sure that there were no other weapons or contraband items in the vehicle.