author: ANDREE Layton Roaf, Justice.

text:
    James W. PARHAM, Sue F. Parham, Obie Cooper, Cleo Cooper, Howard M. Smith, Linda Payn, Paul Cooper, David Cooper, Pam Kopcheck, John Kopcheck, Dennis Medford, and Jo Ann Stevens v. WORTHEN BANK and TRUST COMPANY, INC., and Anne H. Monroe, Trustees of the Monroe Family Trust I and T. Archie Monroe
    96-100
    933 S.W.2d 384
    Supreme Court of Arkansas
    Opinion delivered November 25, 1996

      Crumpler, O’Connor & Wynne, by: William J. Wynne, for appellants.

      Woodward & Epley, by: Michael G. Epley and Bridges, Young, Matthews & Drake, PLC, by: Cary E. Young, for appellees.
   ANDREE Layton Roaf, Justice.

This appeal involves the construction of a 1922 deed by which the appellants, heirs and grantees, obtained a non-participating royalty interest in the mineral rights to property located in Columbia County, Arkansas. The appellees own the property, including the mineral rights. On appeal, the appellants claim that the Columbia Chancery Court erred when it found that they owned a V16 instead of a V12 royalty interest in the oil and gas produced pursuant to a lease executed by the appellees in 1992. We find no error and affirm.

By the execution of a release deed dated August 10, 1922, Claude and Helen Smith conveyed to I.L. and J.P. Cooper a nonparticipating royalty interest in the mineral rights in some 200 acres of land located in Columbia County, Arkansas. The Smiths subse-quendy conveyed ownership of this property in 1922 and 1927 to T.A. and Alice E. Monroe. The property is currendy held by appellees, the Monroe Family Trust, with Worthen Trust Company, Inc. and Anne H. Monroe as trustees, and T. Archie Monroe (“Monroe family”). Over the years, the Coopers devised or conveyed their non-participating royalty interest to various individuals, twelve of whom are the appellants (“Cooper heirs”).

In 1992, the Monroe family executed oil and gas leases of the property to a third party. The new leases provided that the Monroe family’s reserved royalty interest would be V6 of the gross production of the wells on their property.

The Cooper heirs in essence contend that the 1922 deed granted them a V2 interest in whatever royalty interest was retained by the Monroe family. Accordingly, the Cooper heirs asserted that they are entitled to V2 of the x/b royalty interest retained by the Monroe family in the 1992 leases, or V12 of the total royalties from the wells. The Monroe family disputed this claim, and contended that the 1922 deed granted the Cooper heirs only a Vis royalty interest in the wells regardless of the interest retained by the Monroe family, and that the Cooper heirs’ V16 interest was thus unaffected by the 1992 leases.

The oil purchaser and well operator refused to pay the portion of the royalties in dispute until the Monroe family and the Cooper heirs resolved their conflict. The Monroe family filed suit in the Columbia County Chancery Court seeking a declaratory judgment. Both the Monroe family and the Cooper heirs filed motions for summary judgment.

After a hearing, Chancellor Hamilton H. Singleton granted summary judgment in favor of the Monroe family and found that the Cooper heirs were only entitled to V16, instead of V12, of the royalties from the oil and gas wells. In a letter opinion, the chancellor explained that the 1922 deed gave the Cooper heirs an absolute, V16 “fractional share” royalty which was unaffected by the interest retained by the Monroe family in subsequent leases. Hence, the 1992 leases had no bearing on the Cooper heirs’ royalty interest in the wells. The Cooper heirs appeal from this grant of summary judgment.

This Court has jurisdiction pursuant to Ark. S. Ct. R. 1-2(a) (15) & (17) because this appeal involves a question of oil and gas law, and the construction of a deed.

The sole issue on appeal is whether the 1922 release deed granted the Cooper heirs a “fractional share” royalty, as was decided by the chancellor, or a “fraction of a share” royalty. A “fractional share” royalty means that the royalty owner will receive an absolute, predetermined fraction of the gross production of the well. Howard R. Williams & Charles J. Meyers, 2 Oil and Gas Law § 327 (1986). The royalty owner’s fractional interest will not fluctuate according to the amount of royalty interest retained by the grantor in subsequent leases. Id. For example, “an undivided Vi6 royalty interest in any oil, gas or minerals that may hereafter be produced” creates a “fractional share” royalty whereby the royalty owner is entided to Vi6 of the gross production of the well, regardless of the interest retained by the grantor in subsequent leases to third parties. Id.

In contrast, a “fraction of a share” royalty is dependent upon the interest retained by the grantor in leases to third parties. Id. While language creating a “fractional share” royalty refers to a fraction of the gross production, a “fraction of a share” royalty refers to a fraction of the royalty interest retained by the grantor. Id. For example, “an undivided one-sixteenth interest of the royalty” creates a “fraction of the royalty” interest whereby the royalty owner is entitled to Vi6 of whatever interest is retained by the grantor in leases to third parties. Id. Hence, if the grantor retains a Vs interest, the royalty owner will be entitled to Vi6 of the grantor’s Vs royalty or Vi28 interest.

The granting clause of the 1922 release deed in question states:

That we, Claude L. Smith and Helen E. Smith...grant, bargain, sell, convey, set over and assign and deliver unto the said I.L. and J.P. Cooper the following to-wit: An undivided Vi6 interest in and to all of the oil, gas and other minerals in the soil and under the surface thereof that may be produced from the land hereinafter described.

(Emphasis added.) This language clearly establishes that the royalty owners are entitled to a fraction of the gross production and not of the royalty interest. Hence, the chancellor was correct that the granting clause creates a “fractional share” royalty whereby the Cooper heirs are entitled to a consistent, Vi6 of the gross production regardless of the interest retained by the Monroe family in subsequent leases. See Phillip E. Norvell, Pirfalls in Developing Lands Burdened by Non-Participating Royalty, 48 Ark. L. Rev. 934, 937 (1995) (referring to Hanson v. Ware, 224 Ark. 430, 274 S.W.2d 359 (1955)).

If the pertinent language in the deed had ended at this point, there would be no dispute as to amount of the royalty interest conveyed to the Cooper heirs. However, after describing the property to be conveyed, the deed further provides:

.. .said undivided Vi6 interest in the oil, gas and other minerals herein conveyed is to cover and apply to that portion only, which is V2 of1/s of the oil, gas and other minerals, reserved by the grantor herein, his heirs or assigns, in any lease for the development of oil, gas and other minerals now in existence, or that may hereafter be executed and delivered to any lessee...
.. .it being the intention of the parties hereto that this grant in no way shall prevent or interfere with the grant herein or his heirs or assigns in their own name to lease the land herein described for the purpose of developing for oil, gas and other minerals, the grant herein giving the grantee a mineral interest only to Vj t of the oil, gas or other minerals to be delivered out of any royalty existing by virtue of any lease now on said land, or any that may be placed on said land by any party.

(Emphasis added.) The issue is thus whether either or both of these additional explanatory clauses create a “fraction of a share” royalty, and if so, how these clauses should be construed with the granting clause which clearly creates a “fractional share” royalty.

In Palmer v. Lide, 263 Ark. 731, 567 S.W.2d 295 (1978), this court construed the following language as a “fraction of a share” royalty:

It is hereby intended to convey to the said John C. Orr one-eighth of one-eighth of whatever royalty in the oil, gas, and minerals in, under and upon said land which has been retained....
...the said John C. Orr, however, to receive and be entitled to one-eighth of one-eighth of whatever oil, gas or mineral royalty may be reserved....

This court held that Orr was entitled to Vs of Vs of the Vs royalty interest retained by the grantor in the lease of the wells to a third party. Id. Thus, Orr was only entided to a V512 royalty interest. Id.

Likewise, this court in Barret v. Kuhn, 264 Ark. 347, 572 S.W.2d 135 (1978), interpreted “one-eighth of all oil and — or gas run to the credit of the royalty interest reserved” to be a “fraction of a share” interest. The same conclusion was reached by this court again in 1993 when construing the phrase “an undivided 13/24o...part of all royalties on oil gas produced....” Anadarko Petroleum Co. v. Venable, 312 Ark. 330, 850 S.W.2d 302 (1993) (emphasis supplied).

In this case, the two explanatory clauses from the 1922 release deed refer to “V2 of Vs of the oil, gas, and other minerals, reserved by the grantor” and “V16 of the oil, gas or other minerals to be delivered out of any royalty.” Thus, if we were to agree with the Cooper heirs’ argument and construe the explanatory clauses as creating a “fraction of a share” royalty, their resulting royalty share would be V2 of V8 of V6, and Vi6 of 1/6 respectively, or only a V96 interest.

Moreover, it is clear in the 1922 deed that the grantors anticipated that future leases were susceptible to fluctuation, and that the V16 royalty interest would not be affected by changes “in any lease...now in existence, or that may hereafter be executed...the grantor herein giving the grantee a mineral interest only to V16 of the oil, gas and other minerals... out of any royalty existing by virtue of any lease now... or any that may be placed on said land...!’ Thus, it is clear from this language that the grantors intended the Cooper heirs’ royalty interest to be a constant V16 despite any changes in leases subsequently executed.

Finally, the Cooper heirs assert that in 1922, Vs was the traditional interest retained by grantors in oil and gas leases. Thus, they argue that the grantors used the customary Vs designation when they really meant to state V2 of whatever interest was retained by the grantors in future leases.

Although the Cooper heirs are correct that Vs was the customary interest retained by grantors, Norvell, supra, an equally logical explanation is that the grantors wished to make it clear that the interest conveyed was V16 of the total production and not merely Vi6 of the V8 royalty interest they retained. Moreover, this court has said on numerous occasions that it will give a deed its plain meaning and will not go beyond the four corners of the instrument unless the language of the deed is uncertain, doubtful, or ambiguous. Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995); Wynn v. Sklar & Phillips Oil, Co., 254 Ark. 332, 493 S.W.2d 439 (1973). It is obvious that the plain meaning of the deed is that it creates a “fractional share” royalty. Hence, there is no need to go beyond the unambiguous language of the document to consider tradition or custom in construing the language of the 1922 deed.

Affirmed.

Special Chief Justice Edward Wilson McCorkle and Special Justices Jim Burnett and Margaret Meads join in this opinion.

Jesson, C.J., Dudley, and Brown, J.J., not participating.


source: Caselaw Access Project

author: PER CURLAM.

license: Public Domain

text:
    Ottie HOOKER v. PRODUCERS TRACTOR COMPANY, et al.
    96-851
    932 S.W.2d 111

    Supreme Court of Arkansas
    Opinion delivered November 25, 1996
    Appellant, pro se.

      Daggett, Van Dover, Donovan & Perry, PLLC, by: James R. Van Dover, for appellees.
   PER CURLAM.

Petitioner Ottie Hooker petitions this court pro se to set aside its order of October 21, 1996, and to strike any motion to consolidate appeals made in his name. We take this opportunity to clarify and correct the procedural history of this case.

Appellant Hooker is pursuing two related appeals in the appellate courts: (1) Hooker v. Producers Tractor Co., et al., Supreme Court No. 96-851; and (2) Hooker v. Producers Tractor Co., et al., Court of Appeals No. 96-1069. On October 2, 1996, Hooker petitioned to have John Deere Credit added to his certificate of service in case number 96-851. The petition was granted. The Supreme Court Clerk’s office named this petition as a motion to consolidate the two appeals and advised Hooker that the motion had been granted. Consolidating the two appeals was incorrect. We void the consolidation order.

On November 4, 1996, we dismissed Hooker’s appeal in case number 96-851. Thus, his petition to add John Deere Credit to the certificate of service in that appeal is moot. The appeal in the Court of Appeals (number 96-1069) appears to be pending and was not dismissed by this court’s action on November 4, 1996.

NEWBERN, J., not participating.

       The 96-1069 case is styled in two ways: (1) Hooker v. Producers Tractor Co. (Hooker motion) and (2) Hooker v. Producers Tractor Co. & John Deere Credit (complaint).


author: PER CURIAM.

text:
    Larry JOHNSON v. STATE of Arkansas
    CR 96-748
    933 S.W.2d 809
    Supreme Court of Arkansas
    Opinion delivered November 25, 1996
    [Petition for rehearing denied December 9, 1996.]

      Kearney Law Offices, by: Jeffery H. Kearney, for appellant.
   PER CURIAM.

Appellant, Larry Johnson, by his attorney, Jeffery H. Kearney, has filed a motion to file his brief out of time. On June 27, 1996, Johnson filed a motion for rule on clerk to compel the clerk’s office to accept the record in this case after the time for filing had lapsed. In his motion, Johnson’s attorney stated the failure to timely file the record was due to an error on his part. By per curiam order dated July 15, 1996, we granted Johnson’s motion and forwarded a copy of that per curiam to the Committee on Professional Conduct. Johnson was then given until August 24, 1996 to file his brief. After failing to file a timely brief, the supreme court clerk, by letter dated October 4, 1996, gave counsel seven days to respond as to why no brief had been filed, and on October 30, 1996, counsel responded by filing a motion requesting he be allowed to file a belated brief. In his motion, counsel related that, after being denied relief to withdraw as counsel, he had tried to establish a good relationship with Johnson so as to obtain his assistance in preparing a brief.

We find counsel’s motion not only untimely, but also deficient in giving a valid reason for failing to comply with this court’s rules. Because counsel has tendered his brief contemporaneously with his motion, we accept his brief, but we forward a copy of this per curiam to the Committee on Professional Conduct.


author: Per CURLAM.

text:
    Charles Lee WHITFIELD v. STATE of Arkansas
    CR 96-522
    934 S.W.2d 484
    Supreme Court of Arkansas
    Opinion delivered November 25, 1996

      Michaelene Connealy Marshall, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen., for appellee.
   Per CURLAM.

The appellant, Charles Lee Whitfield, was convicted of capital murder and sentenced to life in prison without parole. Pursuant to Anders v. California, 386 U.S. 738, (1967), his counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Whitfield was notified of his right to file a pro se brief within thirty days. He did not file a brief. The State agrees that there is no merit to Whitfield’s appeal. We find that Whitfield’s counsel did not fully brief all of the rulings that were adverse to her client. Accordingly, we order rebriefing.

Whitfield’s conviction arose from an incident that occurred in the detoxification cell at the Blytheville City Jail on April 1, 1995. After he was arrested on a public intoxication charge, Whitfield was placed in the cell with three other inmates, including the victim, Doug Richmond. A short time afterward, the screams of two of the other inmates alerted jailers to an altercation between Whitfield and Richmond. When the police arrived, they discovered Whitfield, who was naked from the waist down, kicking Richmond in the head and shouting that Richmond would perform oral sex on him “before he dies.” Richmond died of massive head trauma as a result of the attack.

Whitfield was charged with attempted rape and capital murder. After waiving his right to a jury trial, he received a bench trial in which the only adverse rulings were the denial of his motions for a directed verdict. Three adverse rulings were made, however, prior to the trial. Two of those rulings were denials of Whitfield’s motions for a continuance. The third ruling was a denial of Whitfield’s motion for a second mental examination by a private mental health professional after he had been examined and determined competent by a court-appointed psychologist.

Anders v. California, supra, and Ark. Sup. Ct. R. Rule 4-3(j) set forth the required contents of a no-merit brief that accompanies an attorney’s request to withdraw. In pertinent part, Rule 4-3(j) provides:

A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal.

In the no-merit brief, Whitfield’s counsel addresses the denial of the motions for a continuance and sets forth the evidence that was sufficient to convict her client of capital murder, but she omits the adverse ruling concerning Whitfield’s request for further mental examination. Because of this omission, the no-merit brief does not comply with Anders v. California, supra, and Ark. Sup. Ct. R. Rule 4-3(j). Accordingly, we order Whitfield’s attorney to file a new brief on or before December 26, 1996. In accordance with Rule 4-3 (j) (2), Whitfield will have thirty days from that date to raise any additional arguments regarding the Trial Court’s denial of his request for a second mental examination.

Rebriefing ordered.


author: ROBERT H. Dudley, Justice.

text:
    INTERNATIONAL RESOURCE VENTURES, INC. v. DIAMOND MINING COMPANY of America, Inc.
    96-674
    934 S.W.2d 218
    Supreme Court of Arkansas
    Opinion delivered December 9, 1996

      Turner & Associates; John J. Watkins; and Allen Law Firm, by: H. William Allen, for appellant.

      Wright, Lindsey & Jennings, by: N.M. Norton, Roger D. Rowe, and Stephen R. Lancaster, for appellee.
   ROBERT H. Dudley, Justice.

This interlocutory appeal is lodged because of the disqualification of one of International Resource Ventures, Inc.’s attorneys. It is before this court under Ark. Sup. Ct. R. l-2(a)12 and Ark. R. App. P. — Civ. 2(a)8. We affirm the trial court’s ruling disqualifying the attorney.

International Resource Ventures, Inc., appellant, a Texas corporation, owns eight percent of the common stock of Exdiam Corporation, another Texas corporation. On August 31, 1995, International Resource filed a shareholder’s derivative suit in Clark County, on behalf of Exdiam, against Diamond Mining Company of America, Inc., appellee, also a Texas corporation, and several other people and corporations, including Diamond Fields Resources, Inc., a Canadian corporation. International Resource alleged that Diamond Mining conspired with a co-defendant to breach fiduciary duties. International Resource asked for compensatory and punitive damages or, alternatively, that 1,000,000 shares paid by co-defendant Diamond Fields for corporate opportunities of Exdiam be deemed to be held in constructive trust for the benefit of Exdiam and reissued to Exdiam. Diamond Mining filed a motion to dismiss pursuant to Ark. R. Civ. P. 12(b)(2), (3), (5), and (6) on the grounds that International Resource failed to state facts upon which relief could be granted, failed to allege sufficient facts to place venue in Clark County, and failed to allege sufficient contacts among the subject transactions, Diamond Mining, and the State of Arkansas that would render Diamond Mining subject to personal jurisdiction. Three of Diamond Mining’s co-defendants filed similar motions to dismiss.

International Resource moved for a nonsuit, and on February 2, 1996, the trial court dismissed the action without prejudice. More than ninety days later, on May 31, 1996, Diamond Mining filed a motion to modify the order of dismissal to one with prejudice. Under Ark. R. Civ. P. 60(c)(4), an order may be set aside after ninety days for fraud practiced by the successful party in obtaining the order. The motion to modify the order to a dismissal with prejudice alleged that on November 18, 1995, International Resource had nonsuited an identical suit in Texas, and, under Ark. R. Civ. P. 41(a), the Clark County nonsuit was International Resource’s second nonsuit; therefore, it should have been with prejudice. Diamond Mining’s motion also alleged that International Resource had committed fraud in obtaining the dismissal without prejudice.

A summary of Diamond Mining’s allegation of fraud is that on August 29, 1995, or two days before the suit was filed in Clark County, International Resource had filed a virtually identical action in the district court of Dallas County, Texas, but had instructed the clerk of that court not to have summons issued. Diamond Mining alleged that it was unaware of the Texas suit since service was never had. The suit in Texas was assigned to the 101st District Court, and, a few months earlier, in another Exdiam shareholder action, the same district court had granted summary judgment against the plaintiff. Diamond Mining contended that, as a result, International Resource did not wish to pursue its case in the Texas jurisdiction, but rather chose to pursue its virtually identical suit that was pending in Clark County. Diamond Mining alleged that the purpose of the suits is to force Diamond Fields Resources to pay an “in ter-rorem” setdement or else lose a $4.3 billion sale of its stock to Inco. Diamond Mining alleged that Diamond Fields shareholders are being deprived of $868,492.00 in interest each day by the “machinations” of International Resource and that its officers want to keep the suits pending as long as possible in an attempt to force a settlement. Diamond Mining alleged that, after the dismissal without prejudice in Clark County, International Resource filed a virtually identical third suit in Texas, but that, if the Clark County order is modified to dismissal “with prejudice,” the third suit in Texas likely will be procedurally barred. Diamond Mining alleged that, after International Resource filed its third suit, a computer check of the Texas court’s docket revealed to it for the first time the existence of the first Texas Suit. Diamond Mining finally alleged that it had contacted International Resource in an attempt to convince it to apprise the Clark County trial court of the true facts, but that it refused to do so.

International Resource responded to the motion to modify the order of dismissal, and, to the response, attached a twenty-ninepage evidentiary affidavit by Eric Fryar of its Texas law firm of Susman Godfrey, L.L.P. Diamond Mining then moved to disqualify Eric Fryar from acting as attorney for International Resource. At a hearing on the motion to disqualify, International Resource, by another attorney, stated that it would submit Fryar’s testimony through the affidavit and also by live testimony. The trial judge ruled that Fryar could serve either as a witness, or as an attorney, but not as both. International Resource chose for Fryar to give testimony, and the trial judge ruled that he was disqualified from further participation as an attorney. This interlocutory appeal is taken from the ruling disqualifying Fryar from serving as an attorney in the case.

Rule 3.7 of the Model Rules of Professional conduct provides:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.

The comment to Rule 3.7 states in part:

Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client.
The opposing party has proper objection where the combination of roles may prejudice that party’s rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

Model Rules of Professional Conduct Rule 3.7 cmt. (1996). We have held that Rule 3.7 is applicable to a lawyer’s giving evidence by affidavit as well as by testimony in open court. See McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990).

In Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995), we held that the trial court abused its discretion in allowing an attorney to testify and act as advocate at a hearing on certification of a class action. In the opinion, we stated:

The general rule is clear and unmistakable. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. The reasoning underlying the general rule is to prevent prejudice and a conflict of interest. The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Conversely, a witness is to tell the truth without loyalty to either party and without regard to which side his testimony might favor. Combining the dissimilar roles of attorney and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and his client. The court of appeals has written that:
There are several reasons for the general rule. First, because of interest or the appearance of interest in the outcome of the trial, the advocate who testifies at trial may be subject to impeachment and the evidentiary effect of his testimony will be weakened, thus harming his client. Second, opposing counsel may be handicapped in cross-examining and arguing the credibility of trial counsel who also acts as a witness. Third, an advocate who becomes a witness may be in the unseemly position of arguing his own credibility. Fourth, the roles of advocate and witness are inconsistent and should not be assumed by one individual. Last, the attorney should not act as both trial counsel and a material witness because of the appearance of impropriety,

Id. at 279-80, 895 S.W.2d at 931 (emphasis in the original) (quoting in part Ford v. State, 4 Ark. App. 135, 139, 628 S.W.2d 340, 342 (1982)). We stated that the rule prohibits an attorney from acting as a witness in procedural matters:

In the case before us, the trial court allowed Mr. Hicks’s testimony on the basis that he had “testified in a hearing on dealing with a procedural consideration by the court.” Accordingly, the appellees ask us to agree that because the class certification was “procedural,” Mr. Hicks did not act as an “advocate at trial,” and, as such, the general rule prohibiting an attorney from testifying is not applicable. In rejecting the appellees’ argument, we recognize that there is no exception that allows an attorney to testify about the propriety of a class certification in a contested case, and note that the creation of such an exception would not be a legitimate construction of the rule. An attorney in our system of jurisprudence is to serve as an advocate and is to have complete loyalty, within the bounds of the law, to his client. The attorney so acted at the certification hearing.

Id. at 281, 895 S.W.2d at 932. Our opinion noted that the attorney acted as advocate at the bitterly contested hearing on class certification, and that, in addition to his clients’ interest, the attorney “had something very close to a personal interest.” 320 Ark. at 282, 895 S.W.2d at 933.

Applying the holding of Arthur to the present case, the trial court correcdy disqualified Fryar from acting as an attorney after he chose to submit the evidentiary affidavit and to testify. See Calton Properties v. Ken’s Discount Building Materials, 282 Ark. 521, 523, 669 S.W.2d 469, 471 (1984), in which we held that the attorney’s affidavit was “nothing less than an attempt by the attorney to disguise testimony while the attorney is still serving as an advocate.” In Calton Properties we further stated:

We have repeatedly held that an attorney must decide whether he should serve as a witness or as an advocate. An attorney who desires to testify must withdraw from the litigation. An attorney who desires to serve as an advocate may not testify. The filing of the affidavit is a flagrant violation of our clear directive.

Id. at 523-24, 669 S.W.2d at 471 (citations omitted).

International Resource contends that Rule 3.7 states only that a lawyer cannot act as advocate at a trial in which he is likely to be a necessary witness and cites the case of Caplan v. Braverman, 876 F. Supp. 710 (E.D. Pa. 1995), to support its argument that the prohibition should apply only to the trial on the merits. The Pennsylvania District Court’s opinion supports International Resource’s argument, but we choose to follow our interpretation of the rule. International Resource also asserts that RLI Insurance Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991), supports the proposition that attorneys can testify at hearings that are not trials and still continue to represent the client. In that case the attorneys testified at a Rule 60 hearing, but our opinion does not mention Rule 3.7 or the propriety of the attorneys’ giving testimony. The case does not have a holding that affects the case at bar.

International Resource relies on additional cases from other jurisdictions. These cases are distinguishable from the present case. And, as previously explained, we have interpreted Rule 3.7 and choose to follow our interpretation.

International Resource quotes from Preliminary Draft No. 12 (May 12, 1996), American Law Institute, Restatement of the Law, The Law Governing Lawyers to support its argument that a lawyer can testify in a procedural matter and still represent his client at trial. We choose to follow the Model Rule that we have adopted, as well as our interpretations of the rule.

International Resource next contends that, even if Rule 3.7 applies to this case, we should reverse the disqualification because it would work a substantial hardship on International Resource. It asserts that Fryar’s testimony is vital to its response to the motion and that Fryar has been the lead counsel on this case. Its president submitted an affidavit setting out Fryar’s prior work and the fact that he did virtually all of the factual investigation and legal analysis in the case. Model Rule of Professional Conduct Rule 3.7(3) provides an exception to the general rule that a lawyer cannot act as an advocate and a witness when disqualifying the lawyer would work a substantial hardship on his client. The hardship exception does not apply to the facts of this case.

The comment to Rule 3.7 provides in pertinent part:

Apart from these two exceptions, paragraph (3) [the hardship exception] recognizes that a balancing is required between the interests of the client and those of the opposing party. Whether the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified due regard must be given to the effect of disqualification on the lawyer’s client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness.

Model Rules of Professional Conduct Rule 3.7 cmt. (1996).

Here, Fryar’s testimony is the primary evidence of International Resource’s opposition to the motion to modify the order, and his testimony is, without question, disputed. When the nature of the case as it now stands before the trial court is considered, it appears that Diamond Mining would be prejudiced if Fryar were not disqualified and that International Resource will not be substantially disadvantaged by the disqualification. International Resource has a “famed Texas plaintiffs’ lawyer,” according to a press release cited by Diamond Mining, and three capable Arkansas attorneys: It will not have the hardship of having to hire new counsel and familiarize them with the case. See West v. State, 519 So. 2d 418 (Miss. 1988). Additionally, the matter currently before the trial court concerns Arkansas procedural rules on nonsuit and modification of orders, and the Arkansas attorneys are presumably able to interpret Arkansas rules of civil procedure as well, or better, than Texas counsel.

International Resource next argues that the uncontested-facts exception to Rule 3.7 applies. It argues that there are no contested facts involved in the motion to modify, only a difference in the interpretation of those facts. It bases this argument on the contention that Diamond Mining’s counsel stated to the trial court that there was no agreement concerning the order of dismissal without prejudice and that Diamond Mining stated to this court that it did not object to the order of dismissal. The argument is not persuasive. There is a great difference between agreeing or stipulating to an order of dismissal and not objecting because there is no basis for objection. The statement referred to is as follows:

To our surprise, Appellant non-suited on February 2nd. In settlement negotiations, we had proposed a different method of handling dismissal, one which would have conceded our pending motions. However, we had no way, and at that time knew no reason, to object to this move.
An order of dismissal “without prejudice” was entered.

This statement by Diamond Mining does not concede that the parties agreed to an order of dismissal without prejudice. Rather, it shows that Diamond Mining had no reason to object to the nonsuiting by International Resource. Furthermore, based on the pleadings, there appear to be many contested facts regarding the motion to conform and Fryar will be a key witness on these matters. Thus, Fryar’s testimony does not relate only to an uncontested issue, and this exception to the rule is not applicable.

After this case was submitted to this court for decision, the parties informed the court that the case had been settled. Because it had already been submitted and decided, we hand down this opinion.

Affirmed.


author: ROBERT H. Dudley, Justice. BRADLEY D. Jesson, Chief Justice, DONALD L. Corbin, Justice,

text:
    Ray SOUTH and Wilma South v. Berl A. SMITH, Special Administrator of the Estate of Nancy Walton
    96-504
    934 S.W.2d 503
    Supreme Court of Arkansas
    Opinion delivered December 9, 1996
    [Petition for rehearing denied February 3, 1997.]

      Arlon L. Woodruff, for appellants/cross-appellees.

      Lyons, Emerson & Cone, by: Mike Cone, for appellee/cross-appellant.
   ROBERT H. Dudley, Justice.

This is another in a long series of cases involving joint accounts in financial institutions. Nancy E. Walton had three children, Buel Walton, Lloyd Walton, and defendant-appellant Wilma South. Buel Walton died in 1982, leaving his daughters, plaintiffs Rita Venable and Monda Hutchison, as his heirs. After Buel Walton’s death, Nancy E. Walton opened joint bank accounts and purchased joint certificates of deposit as a joint tenant with her two remaining children, Lloyd A. Walton and Wilma South, in banks and savings and loan associations in Arkansas and Texas, as follows:

1. One certificate of deposit in the Southwest Savings, now known as Guaranty Federal Bank, FSB, a savings association located in Texas in the names of Nancy E. Walton, Lloyd A. Walton, and Wilma South as joint tenants with right of survivorship.
2. Six certificates of deposit in the MCNB Texas, now known as NationsBank, located in Texas, in the names of Nancy E. Walton or Lloyd A. Walton or Wilma D. South.
3. One certificate of deposit in Citizens Bank of Jonesboro in the names of Nancy E. Walton or Lloyd Walton or Wilma South as joint tenants with right of survivorship.
4. One certificate of deposit, one savings account, and one checking account in fióme Federal Savings and Loan Association, now known as Capital Bank, in the names of Nancy E. Walton or Lloyd A. Walton or Wilma D. South as joint tenants with right of survivorship.
5. Two certificates of deposit in Pocahontas Federal Savings and Loan Association in the name of Nancy E. Walton or Lloyd A. Walton or Wilma D. South as joint tenants with right of survivorship.
6. Two certificates of deposit in the First State Bank of Arkansas in the names of Nancy E. Walton or Lloyd A. Walton or Wilma D. South as joint tenants with right of survivorship.

All of the accounts were opened with funds that belonged solely to Nancy E. Walton.

Lloyd Walton died on October 24, 1992, leaving a daughter, plaintiff Nancy Norwood as his heir. After Lloyd Walton’s death, only Nancy E. Walton and defendant-appellant Wilma South remained as the survivors on the various joint accounts. Meanwhile, in July 1992, Nancy E. Walton had suffered a stroke and was moved to a nursing home. Appellant Wilma South cared for her mother and wrote checks to pay her living expenses. Between November 5, 1992, and November 17,1992, appellant Wilma South withdrew in excess of $315,000 from the accounts and deposited the funds in new accounts in her and her husband’s names. Her husband is defendant-appellant, Ray South. Their daughter’s name was also placed on at least one of the accounts. Appellant Wilma South did not tell her mother that she had removed the money from some of the joint accounts or that she had deposited it in joint accounts with her husband and daughter. The only account from which no money was withdrawn was a Home Federal account, but it was changed to reflect Nancy E. Walton, Ray or Wilma South, and Karen Moustafa as joint tenants with right of survivorship. Nancy E. Walton died just days after the money was withdrawn, on November 25, 1992. In December 1992, after her mother’s death, appellant Wilma South cashed a $10,000 CD from NationsBank in Texas.

Monda Hutchison, Nancy Norwood, and Rita Venable, as the heirs of Buel and Lloyd Walton, filed this suit and alleged that a fiduciary relationship existed between Nancy E. Walton and defendant-appellant Wilma South and that South breached that relationship by withdrawing in excess of $300,000 from the accounts to which Nancy E. Walton was the sole contributor. They alleged that appellants’ actions constituted conversion and that a constructive trust should be imposed declaring the money to belong to the estate of Nancy E. Walton. Appellants answered, denying that they breached a fiduciary duty and asserting that the parties had agreed that any one of them could withdraw the funds, and, if one of them died, the funds would become the property of the survivors. The trial court appointed Berl Smith as special administrator of the estate of Nancy E. Walton and substituted him as the plaintiff in the action.

At trial, there was testimony by various employees of the financial institutions that Nancy E. Walton understood the types of accounts, knew how she wanted the accounts styled, and chose the joint accounts with the right of survivorship. The trial court found that a fiduciary relationship existed between Nancy E. Walton and Wilma South and that, while appellant Wilma South was authorized to withdraw the funds from the accounts, she wrongfully converted the funds by placing them in an account to the exclusion of Nancy E. Walton. The trial court determined that the death of Nancy E. Walton did not terminate her cause of action. The trial court ruled that a constructive trust was created and that Wilma South and Ray South held the proceeds for the benefit of Nancy E. Walton’s estate. The trial court ordered Wilma South to pay to Nancy E. Walton’s estate all of the proceeds withdrawn before Nancy Walton’s death and permitted Wilma South to retain the funds not withdrawn until after her death. The trial court also ordered that “[p] lain tiff’s claim of $10,000.00 plus interest for the sum withdrawn from Nationsbank in Texas on December 24, 1992 is denied as Arkansas law applies to all accounts.”

Wilma South and Ray South, on direct appeal, contend that the trial court erred in that part of the order requiring them to repay all of the funds withdrawn before the death of Nancy E. Walton, and the special administrator appeals from that part of the order providing that Arkansas law applies to the accounts opened in the Texas financial institutions. We reverse on both direct and cross-appeal.

We first address the direct appeal. The applicable statute, Ark. Code Ann. § 23-32-1005 (1987), in material part, provides:

Checking accounts and savings accounts may be opened and certificates of deposit may be issued by any banking institution, or federally or state-chartered savings and loan association, in the names of two (2) or more persons, either minor or adult, or a combination of minor and adult. Checking accounts, savings accounts, and certificates of deposit shall be held and payable as follows:
(1)(A) Unless a written designation to the contrary is made to the banking institution or federally or state-chartered savings and loan association, when a deposit has been made or a certificate of deposit purchased in the names of two (2) or more persons and in form to be paid to any of the persons so named, or the survivors of them, the deposit or certificate of deposit and any additions thereto made by any of the persons named in the account shall become the property of those persons as joint tenants with right of survivorship;
(B) The deposit or certificate of deposit, together with all interest thereon, shall be held for the exclusive use of the persons so named and may be paid to any of those persons or to the survivors after the death of any of those persons. The payment shall be a valid and sufficient release and discharge of the bank or federally or state-chartered savings and loan association for all payments made on account of the deposit or certificate of deposit;
(2) (A) If the person opening the account or purchasing the certificate of deposit designates in writing to the banking institution or federally or state-chartered savings and loan association that the account or the certificate of deposit is to be held in joint tenancy or in joint tenancy with the right of survivorship, or that the account or certificate of deposit shall be payable to the survivor or survivors of the persons named in the account or certificate of deposit, then the account or certificate of deposit and all additions thereto shall be the property of those persons as joint tenants with right of survivorship.
(B) The account or certificate of deposit may be paid to or on the order of any one (1) of those persons during their lifetime unless a contrary written designation is given to the banking institution or federally or state-chartered savings and loan association, or to or on the order of any one (1) of the survivors of them after the death of any one (1) or more of them.
(C) The opening of the account or the purchase of the certificate of deposit in this form shall be conclusive evidence in any action or proceeding to which either the banking institution or federally or state-chartered savings and loan association or the surviving party is a party of the intention of all of the parties to the account or certificate of deposit to vest tide to the account or certificate of deposit, and the additions thereto, in such survivor.
(5) If an account is opened or a certificate of deposit is purchased in the name of two (2) or more persons, whether as joint tenants, tenants by the entirety, tenants in common, or otherwise, a banking institution or federally or state-chartered savings and loan association shall pay withdrawal requests, accept pledges of the account or certificate of deposit, and otherwise deal in any manner with the account or certificate of deposit. This may be done upon the direction of any one (1) of the persons named therein, whether the other persons named in the account or certificate of deposit are living or not, unless one (1) of the persons named therein shall, by written instructions delivered to the banking institution or federally or state-chartered savings and loan association, designate that the signature of more than one (1) person shall be required to deal with the account or certificate of deposit.

Ark. Code Ann. §§ 23-32-1005(1) — (2)(C) & (5) (1987) (emphasis added).

In Nall v. Duff, 305 Ark. 5, 805 S.W.2d 63 (1991), we interpreted section 23-32-1005 to mean that the withdrawal of funds from a joint account with right of survivorship before the death of the sole contributor, as in the case at bar, did not destroy the survivorship right in the survivor. In that case, Nall cared for her neighbor, Duff, for many years. Duff opened a checking account, and both Duff and Nall signed the signature card, which provided, “Joint and Several Checking Account, Payable to Either or Survivor.” 305 Ark. at 6, 805 S.W.2d at 63. Duff also opened a money market checking account, and both Duff and Nall signed the signature card, which provided, “Joint Account — With Survivorship” and “Such an account is issued in the name of two or more persons. Each of you intend that upon your death the balance in the account ... will belong to the survivor(s).” Id. Duff later purchased a certificate of deposit. Both Duff and Nall signed the signature card, which stated that it was a joint certificate and that the signataries acknowledged that the depositor intended that the account balance at the time of the death of any party to the account would be the property of the surviving parties to take as a surviving joint tenant. Id. Duff suffered a stroke and until her death several months later was unable to speak or recognize her visitors. After Duff’s stroke, but before her death, Nall withdrew $83,383.44 from the joint accounts and cashed the certificate of deposit for $23,192.53 and placed the money in a revocable living trust in a bank in Missouri. Nall was the grantor and trustee of the trust and Duff was the life beneficiary. The funds were for the care and support of Duff during her lifetime, and those remaining upon her death were to go to Nall as the grantor. Nall paid Duff’s expenses from the account, as well as her attorney’s fees for drawing up the trust instrument and representing her in the case. The administrator of Duff’s estate filed suit claiming that Duff was incompetent at the time of establishing the accounts and that Nall was in a fiduciary relationship with her; therefore, the funds were in trust for Duff. The trial court ordered Nall to pay the total amount withdrawn to the estate, plus interest, minus expenditures on behalf of Duff. The trial court ruled that the provisions of Ark. Code Ann. § 23-32-1005 (1987) did not apply because the benefits provided to Nall as a joint tenant terminated when Nall withdrew the money and cashed the certificate of deposit.

We reversed and held that the trial court erred in not applying section 23-32-1005. We quoted the introduction and sections (1)(A), (1)(B), and (2)(A) — (C), and stated:

In Hall v. Superior Fed. Bank, 303 Ark. 125, 794 S.W.2d 611 (1990), we applied this section to determine the intent of the parties in establishing joint accounts with right of survivorship. There, we said that Ark. Code Ann. § 23-32-1005 (1987) applies to checking accounts, savings accounts, and certificates of deposit issued by a banking institution or a state-chartered savings and loan association. We held that the language of Ark. Code Ann. § 23-32-1005(2)(A) and (C), quoted above, is clear and provides conclusive evidence of the intention of the parties to create a joint tenancy with the right of survivorship when an account is opened in compliance with the provisions of these subsections. Likewise, in the present case, we find the provisions of Ark. Code Ann. § 23-32-1005(l)(B) and (2)(B), quoted above, are clear and establish the ownership rights of persons named in a joint account or certificate of deposit opened in compliance with the provisions of subsections (1)(A) or (2)(A).
When Eva Duff opened the checking accounts and purchased the certificate of deposit in her and Kay’s names, she designated in writing on the signature cards that the accounts were payable to the survivor. This is in compliance with the provisions of Ark. Code Ann. § 23-32-1005(l)(A) and (2)(A), under which the opening of an account or purchasing of a certificate of deposit in the name of two or more persons designating that the account or certificate of deposit shall be payable to the survivor of the persons named creates a joint tenancy with the right of survivorship. Subsections (1)(B) and (2)(B) provide that the account or certificate of deposit may be paid to any one of the persons named on the account during their lifetimes, unless a written designation is given to the contrary. The accounts and certificates of deposit at issue here contained no contrary designation. In fact, the signature cards for the money market checking account and the certificate of deposit specified that the funds on deposit could be paid to the persons named on the cards at any time and upon “a properly executed written order.” Thus, under the code, appellant had the right to withdraw the money from the accounts.

Nall v. Duff, 305 Ark. at 9-10, 805 S.W.2d at 65 (emphasis in the original).

Under Nall v. Duff, appellant Wilma South was a joint tenant with right of survivorship in the accounts and certificates of deposit. As a joint tenant, she had the right to withdraw the money from the accounts and cash the certificates of deposit. Her ownership in the proceeds from the joint accounts and certificates of deposit continued, while Nancy E. Walton’s right of ownership in the funds from the accounts terminated at her death.

In Dent v. Wright, 322 Ark. 256, 909 S.W.2d 302 (1995), we explained that the tort of conversion is committed when “a party wrongfully commits a distinct act of dominion over the property of another which is inconsistent with the owner’s rights.” Id. at 262, 909 S.W.2d at 305 (citation omitted). In applying Nall v. Duff and Dent v. Wright to the present case, the trial court ruled that Wilma South wrongfully converted funds in the joint accounts and the joint certificates of deposit. However, she was a cotenant with ownership rights, and withdrawal of the funds was consistent with her ownership rights. Her act of withdrawing the funds did not end her survivorship interest in the proceeds of the funds.

The trial court held that, even though one has a right to withdraw funds from a joint bank account, a joint tenant may not, by withdrawing funds in a joint tenancy, acquire ownership to the exclusion of the other joint tenant, see Dent v. Wright, 322 Ark. 256, 262, 909 S.W.2d 302, 305 (1995), and that when one withdraws in excess of his moiety, he is liable to the other joint tenant for the excess withdrawn. Id. at 263, 909 S.W.2d at 305. While that is a correct statement of law, it is not applicable to the facts of this case. Here, Wilma South did not acquire ownership to the exclusion of Nancy E. Walton by withdrawing the funds. While she did not place the funds in a trust, as was done in Nall v. Duff, she testified that she would have used the money for her mother’s benefit and that the reason she did not so do was that her mother died almost immediately after she withdrew the money.

The trial court additionally relied on Hogan v. Hogan, 313 Ark. 374, 855 S.W.2d 905 (1993), in deciding this case. In that case the plaintiff-appellant was an elderly man who purchased a certificate of deposit with his own funds in the name of himself and his son and daughter, as joint tenants with the right of survivorship. The son redeemed the certificate of deposit for a check payable to himself or his sister, the other joint tenant. The father filed an action asserting that the funds had been converted and that he had placed the names of his children on the certificate of deposit for purposes of survivorship rights at his death. The son and daughter moved for summary judgment on the basis that a joint tenant can redeem a certificate of deposit for the entire amount. We held that under Ark. Code Ann. § 23-32-1005(l)(B) and (2)(B) funds in a joint tenancy account can be paid to a joint tenant, but that those provisions “do not determine ownership to the exclusion of other joint tenants.” Id. at 378, 855 S.W.2d at 908. We then quoted from § 23-32-1005 (2) (C) and stated:

This section recites that compliance with the statute will be conclusive evidence of the parties’ intentions that the surviving party is entided to the funds. It does not say that compliance with the statute conclusively vests ownership of the proceeds of the account or CD in whoever happens to withdraw it. The surviving parties in any given case would be those parties remaining after one or more joint tenants had died. This section does not address the rights of a joint tenant who merely withdraws the funds, nor does it deal with the rights of joint tenants among themselves.

313 Ark. at 379, 855 S.W.2d at 908 (emphasis in the original). We further stated there was nothing in the statutes governing the rights of the joint tenants among themselves. We discussed with approval Savage v. McCain, 21 Ark. App. 50, 728 S.W.2d 203 (1987), in which the court of appeals affirmed the imposition of a constructive trust by the chancellor in a case in which one joint tenant withdrew all of the funds in a joint account and refused to account to the other joint tenant. The court then stated that the rule in other jurisdictions is that “though a joint tenant may withdraw the entire fund, one who does withdraw funds in excess of his moiety is liable to the other joint tenant for the excess so withdrawn.” 313 Ark. at 380, 855 S.W.2d at 909 (citations omitted). In Hogan v. Hogan, we said that the trial court had misinterpreted Nall v. Duff and stated that “Nall addressed whether the withdrawal of funds by one joint tenant terminated any rights she had to those funds. We held it did not, and by way of support pointed to § 23-32-1005 (1)(B) and (2)(B), which provide for payment of the hands to any joint tenant who seeks to withdraw them.” Id. (emphasis in the original).

Hogan v. Hogan is distinguishable from the case at bar in a very important way: in Hogan v. Hogan, the dispute was between living joint tenants, but, in the present case, appellant Wilma South is the survivor of the joint tenants in all of the accounts. Here, there is no dispute between living joint tenants. This distinguishing factor places this case under the principle of Nall v. Duff, where we stated that the withdrawal of funds by one joint tenant did not destroy her rights to those funds.

The present case is not wholly in line with the facts of Nall v. Duff in that appellant Wilma South did not place the funds withdrawn from the accounts in a trust for Nancy E. Walton. However, Wilma South testified that the money that she withdrew was to be used for her mother, but that she never used any of it for that purpose since her mother died so soon after she withdrew the money. A constructive trust for the benefit of Nancy E. Walton might well have imposed on the proceeds of the accounts during the lifetime of Nancy E. Walton, but she died before this action was filed and there was no showing that Wilma South deprived Nancy E. Walton of anything she desired. Upon Nancy E. Walton’s death, her rights in the joint funds go to the survivor in the joint account, appellant Wilma South. The fact that appellant Wilma South exercised her right to withdraw funds from the joint accounts a few days before Nancy Walton’s death did not terminate her survivorship right in the property. Nancy E. Walton deliberately opened the accounts as joint accounts with the right of survivorship. Joint accounts are often used as substitutes for testamentary disposition, and people who establish such accounts must be able to know with certainty that the courts will follow their desired disposition of their property.

In the cross-appeal, the Nancy E. Walton estate contends that the trial court erred in refusing to apply Texas law to the accounts in Texas. The argument is well taken. The creation of an account in a financial institution is a contract, and absent some provision in the contract, the general rule is that the construction and validity of a contract are governed by the law of the place where the contract is made. White v. Toney, 37 Ark. App. 36, 823 S.W.2d 921 (1992). The court of appeals in White v. Toney was not unmindful of the exception to the general rule that we set out in Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 194 (1991). There, we held that Arkansas law, the law of the domicile of the decedent, should be applied, as opposed to Texas law, where, just as here, the account was opened. But, as the court of appeals noted, our choice of law in Morris v. Cullipher was based on the fact that marital property was involved, and we held that there should be a single basis for the ownership of marital property. Reversed on direct appeal; reversed on cross-appeal.

Jesson, C.J., concurring.

Corbin, J., dissenting.

BRADLEY D. Jesson, Chief Justice,

concurring. My concurrence concerns our decision on direct appeal. I agree that, under the particular circumstances of this case, we should reverse and remand. However, I am of the opinion that there are other, similar circumstances in which our decision should not be applicable. In the case before us, Nancy Walton died without having the opportunity to personally file suit or in any way assert her right to co-ownership of the funds. The first time her right of ownership in the funds was asserted was after her death. I would limit our holding to that set of circumstances. If Mrs. Walton had discovered, prior to her death, the withdrawals made by Wilma South, and had filed suit or, in some tangible manner, made an attempt to recover the amount withdrawn by Wilma South in excess of her moiety, then Mrs. Walton’s cause of action should survive her death.

DONALD L. Corbin, Justice,

dissenting. I dissent because I am concerned with the path this court is taking in reviewing cases involving joint-tenancy bank accounts where one of the joint tenants is deceased. What concerns me is that our case law has now focused narrowly on the applicable banking statute, Ark. Code Ann. § 23-32-1005 (1987), without any regard for the deceased’s wishes outlined in a will as to how his or her property shall be divided. Such disregard is particularly troubling in this case, where Nancy Walton died testate and her will specifically devised and bequeathed all of her property in three equal shares to the following persons: (1) Lloyd Walton, her (now deceased) son, (2) Appellant Wilma South, her daughter, and (3) the children of her deceased son Buel Walton, namely Monda Hutchison and Rita Venable.

I have no doubt that the majority opinion correctly reflects our previous decisions as well as the statutory law. I write because I am concerned that we are contributing to a false sense of security for those persons who have enough foresight to document their intentions as to the distribution of their property in a last will and testament. Those persons who follow legal advice and encouragement and obtain a legally binding will no doubt believe that when they die, their will shall be done. It is unreasonable for this court or the General Assembly to rob those persons of their security and reliance upon their documented intentions simply because part of their property lay in a bank account that they share with a close friend or family member.

Many elderly persons, fearing that they may reach a point where they can no longer care for themselves, establish joint bank accounts with a child for the purpose of insuring that while they are living, their affairs will be taken care of adequately. Many of those same persons will have prepared wills distributing their property amongst all their family and would probably be shocked to discover that after their deaths their wills were not even considered by the courts in determining that the entire proceeds of the joint bank account were awarded solely to the child whose name appeared as joint tenant on the account signature card.

I am further troubled by the fact that in this case, Appellant Wilma South withdrew the funds from the bank accounts while Mrs. Walton was living. Arguably, this court would have protected Mrs. Walton’s rights to the proceeds of the bank accounts while she was living. Why then does that protection not extend to her estate? The fact that Mrs. Walton died does not change the fact that her daughter took what did not belong to her. By its holding, the majority appears to be sanctioning Appellant’s actions in depriving Mrs. Walton of the benefit of those funds during her lifetime.

For all of the above reasons, I respectfully dissent.


author: David Newbern, Justice.

text:
    Charles McNEESE v. STATE of Arkansas
    CR 96-924
    935 S.W.2d 246
    Supreme Court of Arkansas
    Opinion delivered December 9, 1996
    [Petition for rehearing denied January 13, 1997.]

      Young & Finley, by: Dale W. Finley, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Charles McNeese appeals from his conviction of two counts of arson. Ark. Code Ann. § 5-38-301 (Repl. 1993). He was sentenced to imprisonment for sixty years and forty years, to be served consecutively, and fined $17,000. The sole point of appeal is Mr. McNeese’s allegation that the Trial Court erred in overruling his motion for a continuance. The continuance was sought on the ground that defense counsel was not informed by the prosecution of certain inculpatory evidence until shordy before the scheduled commencement of the trial. There is an issue about whether the prosecution was required to inform Mr. McNeese of the evidence despite his counsel’s failure to request it. We affirm the conviction because the Trial Court’s action, whether or not such a request was required in the circumstances presented, resulted in no unfair prejudice to Mr. McNeese.

On the night of October 14, 1994, Troy Terry’s barn burned to the ground. Later that same night, or in the early morning hours of October 15, 1994, the Strawberry First Assembly of God Church was destroyed by fire. As the result of a police investigation, Mr. McNeese was charged with the offenses.

The State filed a bill of particulars stating the names of ten witnesses and fisting three inculpatory statements allegedly made by Mr. McNeese. Despite the fact that no request for information pursuant to Ark. R. Crim. P. 17.1 had been made by the defense, the State’s bill of particulars referred to the rule and stated that the information would be updated as required. Rule 17.1 requires the State to furnish certain information to an accused “upon timely request.”

On October 25, 1995, the State added two names to its fist of potential witnesses, Teresa Case, who is Mr. McNeese’s ex-wife, and Mike Rains. The State also revealed the substance of five statements Mr. McNeese allegedly made to three of the State’s witnesses.

According to the updated document, Mr. McNeese told J.D. Case, “If Troy Terry don’t apologize to my daughter for them things he said I’ll burn his barn or his chicken houses down.” He told Teresa Case (Teresa McNeese at that time) the same thing and added, “I’ll burn that church down if they don’t quit gossiping about me and Maureen Dower.” Finally, he allegedly told Johnny Blackwood, “I’m gonna use a book of matches and a filter cigarette. Light the cigarette and put the book of matches in there and just let it go,” and “I’ve got a grudge against that pastor. I don’t like him. It ain’t none of his business what me and Maureen do.”

The original information, filed on September 21, 1995, was amended on February 21, 1996, to upgrade the charges from class B B felonies to class A felonies. The amended information also charged Mr. McNeese as an habitual offender having been convicted of four prior felonies.

On February 22, 1996, the prosecuting attorney informed Mr. McNeese’s counsel by letter that Teresa Case would also testify that Mr. McNeese, in the presence of another, spoke of burning the hay barn, and that he said the church people would have to find somewhere else to gossip. Counsel was also informed of a statement by Ricky Young about inculpatory remarks made by Mr. McNeese in Mr. Young’s presence.

On that same day, Mr. McNeese moved to continue the trial, set for February 23, 1996, on the grounds that the State amended the information to allege a class A felony, that the State had not previously informed him of Mr. Young’s statement despite the fact that it had been available since January 1995, and that Teresa Case would testify that the statements to her were made in the presence of “at least one other person,” thus revealing that her testimony might not be subject to the marital privilege.

No argument is made on appeal about the upgrading of the charges from class B to class A arson. Presumably that was no more than a function of ascertaining the amount of damage done. See § 5-38-301 (b).

A hearing on the motion was held on the morning of the trial. Counsel for Mr. McNeese conceded he had not made a request for discovery but contended it was his understanding that the prosecutor was following an open-file policy. His argument to the Trial Court and in this appeal includes his contention that he was lulled into thinking he need not make a request for information as he had already been promised it in the bill of particulars and by the prosecutor personally.

The record of the discussion among counsel and the Trial Court at the hearing reveals that Mr. McNeese’s counsel was not at all concerned about Johnny Blackwood’s statement, as he knew what his testimony would be. His concern about the prospect of Teresa Case as a witness was that he had previously represented her in divorce litigation and would have investigated whether he would have a conflict of interest in the event she became a witness against her former husband. If Rule 17.1 were clearly applicable, there is no contention that any of its provisions would have required the State to furnish Mr. McNeese with information that statements allegedly made by Mr. McNeese to his then wife were or were not made in the presence of another person.

The main point was and is the contention that the prosecutor was charged with knowledge of Mr. Young’s statement, which had been taken by the State Police in January 1995, though it did not come to the prosecutor’s attention until just before the trial. See Browning v. State, 274 Ark. 13, 621 S.W.2d 688 (1981).

Ricky Young testified that Mr. McNeese was mad at Mr. Terry and that Mr. McNeese said he was “gonna mess with his [Terry’s] tractors.” Further, after the barn burned, Mr. McNeese approached Mr. Young and stated, “The bam burnt, didn’t it.”

Johnny Blackwood testified he went to Mr. Terry’s barn with Mr. McNeese and Mr. McNeese burned it down. He also told the jury he went with McNeese to the church, and that Mr. McNeese burned it down.

J.D. Case testified that he heard Mr. McNeese threaten to burn Mr. Terry’s barn.

Teresa Case testified that she heard Mr. McNeese tell Johnny Blackwood, on the evening the barn and church burned, to put on a darker shirt because “they were going trick or treating early.” She told the jury that Mr. McNeese said he was going to burn down Mr. Terry’s barn, that he admitted to burning the barn, and that he said he burned the church because “they were gossiping and they would have to find some place else to gossip this weekend.” The alleged statements were made while she and Mr. McNeese were husband and wife.

As noted at the outset, the point of appeal here has to do with failure to grant a continuance. At the heart of the argument, however, is the alleged discovery violation with respect to Mr. Young’s statement. Even if a discovery violation occurred, Mr. McNeese would not necessarily be entided to a new trial. A prosecutorial discovery violation does not automatically result in reversal. Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990); Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). Reversible error occurs only when a prosecutor’s failure to comply with a timely request for discovery results in prejudice to the appellant. Hunter v. State, 316 Ark. 746, 875 S.W.2d 63 (1994); See Hall v. State, 306 Ark. 329, 812 S.W.2d 688 (1991). No unfair prejudice resulted from failure to grant a continuance thus allowing time for Mr. McNeese’s counsel to attempt to find a way to combat Ricky Young’s testimony. That testimony was at most cumulative and pallid in comparison with the testimony of Johnny Blackwood and the other witnesses.

Affirmed.


author: Tom Glaze, Justice.

text:
    Shirley CHLANDA v. Lewie KILLEBREW
    96-862
    934 S.W.2d 227
    Supreme Court of Arkansas
    Opinion delivered December 9, 1996

      Eichenbaum, Scott, Miller, Liles & Heister, PA., by: Peter B. Heister and Ledbetter & Associates. Ltd., by: Thomas D. Ledbetter, for appellant.

      Davis & Goldie, by: James D. Goldie, for appellee.
   Tom Glaze, Justice.

Appellant Shirley Chlanda visited her sister, Evelyn Fuller, in the hospital, and during that visit, Shirley claims her sister gave her some jewelry with an estimated value of $50,400.00. Per Evelyn’s instructions, Shirley located the jewelry in Evelyn’s and her husband’s, Milford Fuller’s, home, and took possession of it. Shirley kept the jewelry in her luggage while she stayed at the Fuller home during Evelyn’s sickness. During Shirley’s stay, Evelyn died. Afterwards, Shirley gave Milford temporary possession of the jewelry, but Milford also died less than two months later before Shirley was able to obtain the return of the jewelry.

Appellee Lewie Killebrew was named co-administrator of Milford’s estate, and Shirley demanded the return of the jewelry. Killebrew denied he had possession of it, and Shirley subsequently filed this conversion litigation, alleging Evelyn had given her jewelry to Shirley, and Killebrew was wrongly retaining it. Killebrew answered, maintaining he had never possessed the jewelry. In fact, he asserted the so-called missing jewelry had been found hidden in Milford’s bedroom, and because he had no access to Milford’s bedroom, the discovery of the jewelry in the Fuller home proved he had never possessed it. Killebrew moved for summary judgment, alleging no genuine, material fact was in issue. The trial court granted the motion, but we hold the trial court erred.

Killebrew’s summary judgment motion was supported by three affidavits, his, Ron Kersch’s and Ron Campbell’s. In his affidavit, Killebrew averred that he at no time possessed the jewelry sought by Shirley, nor did he have the key to obtain the jewelry from the Fuller house after Milford died. Killebrew said that, immediately after Milford died, he gave his only key to the house to Ron Campbell, the trust officer of Milford’s estate. Killebrew further asserted he was never again alone in Milford’s house. However, he said he was in the Fuller house when Ron Kersch, an auctioneer, was inventorying it and found a box of jewelry located in Milford’s bedroom. Upon opening the box, Killebrew said the jewelry “appeared” to contain the jewelry described by Shirley in her lawsuit. Killebrew stated that he had this newly discovered jewelry appraised, but the jewelry items were not sold. Instead, the jewelry is presendy being held by Campbell. Kersch’s and Campbell’s affidavits generally support Killebrew’s averments. Kersch related that both Killebrew and Campbell were present when Kersch found the box of jewelry, and they recognized it as being the “same type” claimed by Shirley. In his affidavit, Campbell recognized the jewelry “as being similar” to the “same (sic) jewelry” described in Shirley’s lawsuit. A list of the discovered jewelry items was also attached to Killebrew’s motion. Killebrew argues the foregoing is proof that he never possessed the jewelry Shirley claims and that the jewelry-found by Kersch when inventorying Milford’s house is that claimed by Shirley.

Contrary to Killebrew’s claims, we find the record reveals proof submitted by Shirley that, at least, raises an issue of material fact concerning (1) whether Killebrew ever took possession of Shirley’s jewelry, and (2) whether the jewelry found by Kersch is the same jewelry that Shirley is claiming. We first consider Kille-brew’s claim that he had never seen any of Evelyn’s jewelry claimed by Shirley or possessed any of it. Besides her complaint and own affidavit describing the jewelry given to her by Evelyn, Shirley submitted with her response to Killebrew’s summary judgment motion the affidavits of Jeffrey Harper and Delbert Chappelle, former employees of Milford’s. Harper attested that, after Milford died, he heard Killebrew tell Chappelle that he, Killebrew, had the jewelry and “Evelyn’s bitch sister isn’t going to get any of it.” Harper further averred Milford had previously instructed Harper and other employees that they “were to do everything they could to make sure” Shirley got the jewelry. Harper asserted Killebrew disclosed to Harper that he had all of Evelyn’s things he wanted, and Killebrew had gone through the safety deposit boxes and the office safe. Chappelle’s affidavit, too, related that Killebrew said that he had Evelyn’s “good jewelry” and “Evelyn’s bitch sister isn’t going to get any of it.”

Shirley’s affidavits by Harper and Chappelle suggest Killebrew had previously possessed Evelyn’s jewelry and intended to keep Shirley from getting it. Clearly, Shirley’s affidavits conflict with Killebrew’s proof, and when such conflicts exist and summary judgment is sought, all evidence presented in support of the motion must be viewed in the light most favorable to the nonmoving party. Car Transp. v. Garden Spot Distrib., 305 Ark. 82, 805 S.W.2d 632 (1991). Here, Shirley’s affidavits can be fairly read to dispute Killebrew’s factual claim that he had never seen or possessed any of Evelyn’s jewelry now sought by Shirley.

Finally, while Killebrew maintains the jewelry found in the Fuller house is the same jewelry as that sought by Shirley and therefore resolves any conversion claim she now asserts, we must disagree for two reasons. First, we have made an attempt to compare the jewelry items described in Shirley’s complaint to those items listed and described as having been found in the Fuller house, and we conclude it is impossible to determine whether these items could be the same. In fact, the descriptions of the items listed by each party vary so much in detail that they defy comparison. We would point out, too, that Shirley’s list of jewelry included an expensive diamond pyramid ring, and while Killebrew remembered Evelyn having such a ring, that ring is not mentioned in the list of jewelry items found by Kersch.

Because our review reveals that disputed factual issues remain unanswered, we hold the trial court erred in granting Killebrew’s motion for summary judgment. Therefore, we reverse and remand for further proceedings.


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    Ralph DOUTHITT v. STATE of Arkansas
    CR 96-622
    935 S.W.2d 241
    Supreme Court of Arkansas
    Opinion delivered December 9, 1996

      Kenneth W. Haynes, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant, Ralph Douthitt, was convicted of sixty-one felony counts for rape, incest and violation of a minor, and was sentenced to serve 174 years at the Department of Correction. Douthitt brings this appeal with eight points for reversal. For an understanding of the issues, a short statement of the facts is necessary.

On March 28, 1995, Misty Wilson, eighteen years old, confided in her mother, Tammy Douthitt, that her stepfather, Ralph Douthitt, had been sexually abusing her since approximately 1988, when she was eleven years old. Misty told her mother that over the course of those years, her stepfather had taken numerous nude photos and videos of her. That same evening, Tammy and Misty reported these prior incidents to Sergeant Jerry Hagar, who was with the Independence County Sheriff’s Department. Misty told Hagar some of the photographs and other material might be kept in a metal ammunition box somewhere in the shop building (garage). Hagar asked Tammy if the police could have permission to search her house and the detached garage adjacent to it that night. Tammy agreed, and signed a consent to search form.

Upon arriving at the Douthitt residence the officers began their search of the garage, which was unlocked. Shortly thereafter, Douthitt arrived at the home and was immediately taken into custody. The officers continued their search of the garage, and discovered a false wall under a cabinet, which concealed a secret compartment. Within the secret compartment, the officers found a locked metal box and a videotape, which was attached beneath a shelf in the hidden compartment. The officers removed the locked metal box and broke the padlock with a screwdriver. Inside the box they discovered nude photographs of Misty and Douthitt’s handwritten diary which corroborated what Misty had previously told Hagar. After searching the garage, the officers searched the home, where they found a metal box, photographs of Misty partially nude, and a two-way mirror from a bedroom that allowed viewing into the bathroom.

On April 11, 1995, an arrest warrant was issued for Douthitt based upon the statements of Misty and the evidence seized during the search. On the same day, the State filed its information against Douthitt, charging him with sixty-three (63) felony counts. Counts 1, 2, and 3 each charged Douthitt with rape, a class Y felony; counts 4 through 33 charged Douthitt with violation of a minor in the first degree, a class C felony; and counts 34 through 63 charged him with incest, a class C felony.

Douthitt filed a motion to suppress the evidence seized as a result of the search of his home and garage. He also filed a motion challenging the constitutionality of the State’s incest statute. Both motions were denied.

Douthitt’s first point for reversal concerns the trial court’s denial of his suppression motion. The State’s initial response is that Douthitt’s abstract is flagrantly deficient and fails to support his suppression argument. We must agree.

We initially note that, while Douthitt’s motion below appeared to challenge the evidence seized from both the Douthitt’s home and garage, Douthitt’s argument focused only on the expectation of privacy he may have had regarding those items seized in the garage. He never seriously argued at trial that his wife, Tammy, did not have common authority to consent to the officers’ search of their home; nor does Douthitt question that segment of the search in this appeal. In fact, Douthitt’s argument concedes both Douthitt and Tammy joindy occupied the home, but Douthitt asserts no such joint occupancy or possession of the garage existed, permitting Tammy to consent to its search.

This court’s problem in considering the validity of the officers’ search of the garage arises because Douthitt fails to adequately abstract the exhibits whereby the members of this court can determine what evidence was taken from the garage and what was seized from the home. For example, Douthitt’s abstract refers to 115 exhibits that apparendy had been introduced at trial by the State, but exhibits 29 through 115 reflect no mention as to whether they were found — in the garage or in the home. Douthitt also submits a somewhat abbreviated abstract of Tammy Douthitt’s and Officers Hagar’s and Norman’s testimonies at the suppression hearing, and those testimonies, too, fail to address where most of the 115 exhibits had been discovered. Even Douthitt’s abstract of the trial testimony omits reference to most of the exhibits at issue.

The 115 exhibits in this case are obviously relevant in deciding Douthitt’s suppression argument, and they are also important when considering what, if any, prejudice Douthitt may have sustained by an illegal search of the garage or the locked box found inside the garage. Too, we would point out that a metal box was found in the Douthitt’s mobile home and exhibits were discovered in that box, but Douthitt’s abstract fails to specify which ones.

While one could argue all the exhibits were relevant to the suppression motion raised by Douthitt, the posed photographs of Misty are particularly significant in determining how Douthitt may have been prejudiced by any invalid search of the garage, especially if any of those photos were discovered in the Douthitt home. This court’s rule requires, unless waived by the court upon motion, that the appellant reproduce a photograph and attach it to his abstract whenever that photograph must be examined for a clear understanding of the testimony. See Ark. Sup. Ct. R. 4-2(a)(6); Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995). Here, the record reflects no such waiver motion was made by Douthitt; nonetheless, he still chose not to reproduce and attach the photographs to his abstract.

In examining Douthitt’s abstract, we see where he repeatedly stated he did not abstract certain exhibits or testimony because either he believed those portions of the record were irrelevant to the issues on appeal or he thought he had previously abstracted the relevant testimony. Unfortunately, such abstract omissions have caused considerable confusion for the justices who had no record to help them understand the relevant factual questions and omissions we have discussed hereinabove. Our rule is clear that, without proper abstracting, seven justices would be forced to pore through the sole record of the case on file with the clerk of the supreme court in search of the error(s) propounded by the defense. We have said repeatedly, and our rule so states, that we will not go to the record in search of prejudicial error. Britton v. State, 316 Ark. 219, 870 S.W.2d 762 (1994).

Douthitt’s second argument is that Ark. Code Ann. § 5-26-202 (1987), the statute governing incest, does not provide for equal treatment of relatives by consanguinity and affinity and therefore violates the Equal Protection Clause. As pointed out by the State, this court has decided this issue in Camp v. State, 288 Ark. 269, 704 S.W.2d 617 (1986). In addressing the incest statute, the court mentioned Camp’s argument that that law created a dichotomy of criminal responsibility between stepchildren and natural children. When addressing Camp’s suggested dichotomy existing between natural parents and stepparents, this court further stated the following:

[W]e are not persuaded that the disparate treatment of the statute is not intentional, or that it lacks a rational basis. The commentary to [§ 5-26-202] points out that stepchildren and adopted children have been added to the crime of incest because society is as concerned with the integrity of the family, including step and adoptive relationships as well as those of blood relationships, and sexual activity is equally disruptive, whatever the makeup of the family.

The Camp court, noting the presumption of constitutionality of the incest statute and in upholding it, quoted from the case of Schock v. Thomas, Comm’r, 274 Ark. 493, 625 S.W.2d 521 (1981), as follows:

The Equal Protection Clause does not require that all persons be dealt with identically; it only requires that classification rest on real and not on feigned differences, that the distinctions have some relevance to the purpose for which the classification is made, and that the treatment be not so disparate as to be arbitrary.

In sum, Douthitt’s argument fails to reflect the classifications under § 5-26-202 are arbitrary. Nor has he shown he is subjected to disparate treatment under the circumstances existing here. Regardless of whether Douthitt was related to Misty by consanguinity or affinity, the State’s charges against him under the provisions of § 5-26-202 would effectively be the same.

Douthitt’s next point asserts the trial court erred in failing to sever the three rape counts against him from the counts involving incest and first-degree violation of a minor. He submits the three rape counts were alleged to have occurred from 1989 through 1991 and a break in time existed between the other 60 counts that were alleged to have occurred in 1993 through March 1994. He argues this difference or “break” in time reflects the rape charges were not a part of a single scheme or plan and should have been severed.

This court has often said that when the charge concerns the sexual abuse of a child, evidence of other crimes, wrongs, or acts, such as sexual abuse of that child or other children, is admissible to show motive, intent, or plan pursuant to A.R.E. Rule 404(b). See Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). Here, the same evidence was admissible against Douthitt in each count of sexual abuse, so the trial court did not abuse its discretion in denying severance. See Robinson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993). Before leaving this point, Douthitt also suggests error in failure to sever because the rape shield statute precludes evidence of the victim’s prior sexual conduct for purposes of some of the crimes, but not for others. He submits that there is no statute excluding evidence of the victim’s prior sexual conduct in a prosecution for incest, and he was entitled to introduce such evidence. In Evans v. State, 317 Ark. 532, 878 S.W.2d 750 (1994), this court held that, although the rape shield statute does not apply to incest, the issue of admittance of the victim’s prior sexual conduct is based upon relevancy and is relevant only if sexual intercourse was consensual. Consent, however, is never an issue in the crime of incest. Id. at 539. The trial court was correct in rejecting this argument of Douthitt’s, too, when denying his severance motion.

In his fourth argument, Douthitt contends that the trial court erred in denying his proffer of Department of Human Services records that he asserts contain statements by Misty that she and Douthitt never had sexual contact. He argues that the denial of his proffer violated his right to attack Misty’s credibility. No reversible error occurred, concerning this point, for two reasons. First, this court has held that the General Assembly clearly intended for unfounded reports by the Department of Human Services to be used solely within its own confines and further disclosure is prohibited. Fox v. State, 314 Ark. 523, 863 S.W.2d 568 (1993). Second, the record reveals Misty testified concerning the Department of Human Services investigation, and Douthitt had the opportunity to cross-examine her on this issue. Therefore, he has shown no prejudice.

Douthitt’s next argument asserts that the trial court erred in denying his directed-verdict motion. In this respect, Douthitt urges that because the three rape counts were identically worded in the information and did not assert the time of each crime, the jury was unable to know what proof went with what count. Again, Douthitt fails to show a meritorious argument. First, this court has held that, while it is a better and safer practice to include in an information or indictment that date on which or the time frame in which an offense occurred, it is not necessarily fatal to the information or indictment if such data is not included, unless time is an essential element of the offense. Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988). The court has held that time is not an essential element of rape or incest. Id. at 4. Second, we also point out that the record fails to show Douthitt requested a bill of particulars, therefore, he is procedurally barred from raising this issue.

Douthitt’s sixth point claims the trial court erred in denying a mistrial because he was compelled to announce to the jury that he did not have any witnesses. He claims the trial court’s ruling caused a comment on his decision not to testify. This argument is wholly meridess. The record shows Douthitt merely stated, “Defendant rests,” after the State concluded its case, and made no reference to witnesses whatsoever. Also, Douthitt offers no legal authority or convincing argument concerning how his remarks constituted reversible error, and we know of none. See Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Douthitt next urges error because the trial court improperly allowed the State, in its final argument, to tell the jury that they could look at Douthitt’s handwritten diary, State’s Exhibit 24, and track the dates set out therein and match them with the counts alleged in the information. He asserts the information is not evidence and is not available as such to the jury so as to fill a gap not covered by the evidence. Because Douthitt’s error challenges the State’s closing remarks, but he fails to abstract those remarks or closing argument, we do not consider this issue on its merits. See Harris v. State, 303 Ark. 233, 795 S.W.2d 55 (1990).

In conclusion, we have carefully considered each point advanced by Douthitt, and we affirm the trial court’s rulings and decision for the reasons set out hereinabove.


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    Linda LIKE, et al. v. Dave PIERCE, d/b/a D & M Mobile Home Sales
    96-835
    934 S.W.2d 223
    Supreme Court of Arkansas
    Opinion delivered December 9, 1996

      Webb & Doerpinghaus, by: Doyle Webb, II, for appellant.

      Pope, Ross, Dendy, & Cazort, by: Robert D. Ross, for appellee.
   Tom Glaze, Justice.

Appellant Linda Like brought this tort suit against Dave Pierce and his business, D & M Mobile Home Sales, after Like sustained a broken ankle when she was on D & M’s premises to tour some mobile homes. She alleged that, in order to view the motor homes, she was required to exit the back door of D & M’s office onto steps, and as she descended from the bottom step onto a gravel walkway, her ankle turned, causing her to fall. Like alleged the business’s steps were of a faulty design, too narrow, and too steep for a safe exit from the office. Pierce filed a motion for summary judgment, asserting there was no evidence that Like’s injury was caused by his or D & M’s negligence. The trial court granted Pierce’s motion, from which Like brings this appeal. We affirm.

Like argues the trial court erred in finding no issue of material fact existed. She first notes that, because she was a business invitee, D & M owed her a duty to use ordinary care to maintain its premises in a reasonably safe condition. Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994). Like further argues that D & M’s back-door exit and staircase provided steps that were too steep and narrow, and this faulty condition of the steps caused poor footing onto the gravel. These allegations, Like suggests, present material factual issues that remain undecided and are reasons for reversing and remanding this matter for further proceedings.

Pierce concedes Like was a business invitee and, therefore, he owed a duty to use ordinary care to maintain his premises in a reasonably safe condition. Nonetheless, he argues Like still must show Pierce was negligent and that such negligence was a proximate cause of her damages. See AMI Civil 3rd, 203. Pierce claims the evidence presented by Like proves neither negligence nor proximate cause. We agree. In Like’s deposition, she described exiting through D & M’s back door and going down steep steps which had a safety rail on the right side. Like said that she had plenty of room for her foot on the steps, but when she departed the bottom step, her “left ankle turned in the gravel and [she] fell forward.” She recalled the gravel walkway contained big, gray granite. From this description, Like simply falls short of showing that either the stairs or the gravel created a dangerous condition causing her fall and injuries.

Like cites the case of Carton v. Missouri Pacific R.R. Co., 303 Ark. 568, 798 S.W.2d 344 (1974), but that case, we think, only emphasizes the insufficiency of proof submitted by Like. The Carton decision involved an obvious danger where the plaintiff-driver slipped and fell at the railroad’s terminal when walking on a gravel surface, which had become “dirty, messy and greasy” due to diesel-fuel spillage. The Carton court held that, although the duties of occupiers of land to business invitees usually ends when the danger is either known or obvious to the invitees, the obvious danger rule does not bar recovery when the invitee is forced, as a practical matter, to encounter a known or obvious risk to his job. In the present case, Like’s proof appears marginal, at best, in establishing any negligence on Pierce’s part in the placement of the stairs exiting D & M’s office, but it is altogether wanting in Like’s attempt to show Pierce’s negligence, if any, caused Like’s injuries. For instance, nothing Like presented showed the gravel was inherently dangerous or contained some type of substance making the walkway unreasonably unsafe or dangerous.

Because Like’s pleadings and proof fail to show a genuine issue of material fact establishing her injuries were caused by Pierce’s negligence, we affirm the trial court’s ruling that Pierce was entitled to judgment as a matter of law.

       Like’s husband joined in this lawsuit, alleging loss of consortium.