text:
    Fred RAHAT and Mary Rahat v. Akbar GOLMIRZAIE
    97-832
    966 S.W.2d 883
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998

      Kit Williams, for appellant.

      Pearson and Chadwick, by: C. Thomas Pearson, Jr., and Charles R. Chadwick, for appellee.
   Donald L. Corbin, Justice.

Appellants Fred and Mary Rahat appeal the judgment of the Washington County Chancery Court awarding attorney’s fees to C. Thomas Pearson Jr., Appellee Akbar Golmirzaie’s attorney in this partition suit, pursuant to Ark. Code Ann. § 18-60-419 (1987). Appellants’ sole argument on appeal is that the trial court abused its discretion in awarding an attorney’s fee of five percent (5%) of the total sales price of the property. Appellants ask this court to abolish the practice of allowing the trial court to award a fee on the basis of a percentage of the sales price and to overrule any precedent to the contrary. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a) (17), as it raises an issue of significant public interest. We find no error and affirm.

The record in this case reveals the following facts. Appellee co-owned three parcels of land with Appellants. On June 9, 1995, Appellee petitioned the chancery court for partition of the land, which he asserted was not divisible in kind, and requested attorney’s fees. Appellants answered on June 20, 1995, asking for consideration of a division in kind. Appellants also indicated that they would not oppose attorney’s fees awarded within the discretion of the trial court. The partition action was dismissed for want of prosecution on December 11, 1995, but reinstated on December 21, 1995. On that date, the trial court entered a partition decree, finding that the properties were not capable of a division in kind and should be sold, with the proceeds of the sale to be divided and apportioned among the parties, after payment of costs and attorney’s fees.

The properties were sold at auction on January 25, 1996. Tracts A and C were subsequently purchased by Appellants for $51,600 and $24,000, respectively, while Tract B was purchased by third parties for $80,000. On March 12, 1996, the trial court awarded Appellee’s attorney a fee in the amount of $7,780, which was five percent (5%) of the total sales price of $155,600. Appellants objected to the amount of the attorney’s fees and asked the trial court to reconsider the award. They argued that the amount of the fees failed to reflect the simplicity of the case, the dearth of pleadings, and the small amount of time needed to complete the uncontested litigation. The trial court overruled Appellants’ objection, determining that the award of $7,780 was not per se unreasonable.

On February 12, 1997, per Appellants’ request, the trial court conducted a hearing on the issue of attorney’s fees. Walter Niblock, a practicing attorney and member of the local bar for thirty-five years, testified for Appellee. Niblock stated that he had experience in bringing foreclosure and partition cases, for which he had received attorney’s fees in the amount of five percent (5%) to ten percent (10%) of the sales price of the properties. He also stated that in assessing attorney’s fees in partition cases, the court should consider the amount of the partition and the pleadings involved.

Appellee’s next witness, Lamar Pettus, a local attorney who had practiced in the area for twenty-two years, also testified that he had considerable experience with partitions and foreclosures. He stated that normally the attorney’s fees awarded for both partitions and foreclosures is a percentage of the sales price of the property. He stated that a fee of five percent (5%) of the sales price was a reasonable fee, and that he had seen awards ranging from three percent (3%) to ten percent (10%). He stated that the factors to consider in this type of case were the amount of time and labor, the difficulty of the case, and the experience of the attorney. He indicated that even in an uncontested partition action, however, the custom and practice in that area was that the actual work required had no real bearing on the amount of attorney’s fees awarded; rather, such fees were treated in the same manner as a real estate commission or an auctioneer’s fee. He further stated that the amount of attorney’s fees awarded should be based upon a percentage of the total sales price, as opposed to the net gain to the parties.

Appellant presented the testimony of David Morris, a local attorney, who had practiced in the area for fifteen years. He stated that he had reviewed the pleadings in this case, and that it was his belief that the case was not unusual or difficult and did not require a high level of legal skill to accomplish. He stated that an experienced attorney such as Appellee’s attorney should receive an hourly rate between $90 and $150. He stated further that such an experienced attorney should not have had to devote a lot of labor to finish this partition case and distribute the proceeds. He stated that the fee awarded in this case was high. On cross-examination, however, he agreed that attorney’s fees in partition and foreclosure cases are not normally awarded upon an hourly rate. He indicated that some of his fees in partition cases were based upon a percentage of the sales price, and that in fight of the factors enunciated by this court, a fee of five percent (5%) of the sales price is not per se unreasonable.

Appellant Fred Rahat testified that he did not believe that he had benefitted from the partition and sale of all three parcels of land. He contended that because he had purchased Tracts A and C and had thereby increased his debt, he had not actually benefited from the partition of those parcels. Conversely, on rebuttal, Appellee, who is responsible for his proportionate share of the attorney’s fees pursuant to section 18-60-419, testified that he thought the amount of attorney’s fees was fair.

The trial court ruled that in awarding attorney’s fees of $7,780, it had considered the various factors submitted by Appellants, namely the ability of the practitioner, the results obtained, and the amount of work required, as well as the total sales price involved. The trial court found that Appellee’s attorney was a lawyer of long standing in that court and was at least a reasonably average, competent attorney. (The trial court noted that Appellants did not raise any question of the attorney’s competency.) The court found that the results obtained in this case were those specifically envisioned by the statute providing for fees in partition suits, as all parties to the suit had benefitted from the partition of the land. The trial court found that Appellants had actually received a benefit from the partition of the entire property, despite the fact that their debt had increased on the two parcels that they purchased. The trial court reasoned that it was their choice to assume the additional debt.

The trial court found further that the lack of evidence as to the amount of time Appellee’s attorney actually spent on this case was of little consequence to its decision. The court reasoned that although an attorney’s time was one factor to consider in awarding attorney’s fees, it was not a decisive factor in this case, weighed along with the requisite skill, knowledge, and expertise required to take such a case to a successful conclusion. The court explained that because all attorneys do not work at the same rate of speed to obtain similar results, the particular hourly rate of an attorney was not a true measure of the work involved. The trial court additionally observed that this court’s prior decisions regarding attorney’s fees in partition suits have viewed the amount of the fee in relation to the value of the property in determining whether such fee was reasonable. Accordingly, the trial court ruled that the award of $7,780 in attorney’s fees was not unreasonable on its face, nor was it unreasonable in light of the factors that this court has established.

Appellants argue on appeal that the amount of attorney’s fees awarded by the trial court was not reasonable, given the simplistic nature of the partition action, which was not contested and did not result in any litigation except that regarding the award of attorney’s fees. Appellants further ask this court to abolish the practice of awarding fees in such partition actions based upon a percentage of the sales price or fair market value of the property. Instead, they urge us to consider only those factors set out in Rule 1.5 of the Model Rules of Professional Conduct, particularly the time and labor required by the attorney.

Section 18-60-419 provides in pertinent part:

(a) In all suits in any of the courts of this state for partition of lands when a judgment is rendered for partition in kind, or a sale and a partition of the proceeds, the court rendering the judgment or decree shall allow a reasonable fee to the attorney bringing the suit. The attorney’s fee shall be taxed as part of the costs in the cause and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to the suit in the lands so partitioned.

Section 18-60-419 makes the awarding of attorney’s fees in partition actions mandatory. Graham v. Inlow, 302 Ark. 414, 790 S.W.2d 428 (1990). In assessing a reasonable fee award, the court is to consider only those services performed by the attorney requesting the fee which are of common benefit to all parties. Id. This provision mandates the taxing of the fee as part of the costs of the cause, to be assessed and taxed proportionately against all parties. McElhaney v. Cox, 257 Ark. 934, 521 S.W.2d 66 (1975). There is no fixed formula for assessing attorney’s fees in partition actions; such determination lies within the broad discretion of the trial court. Padgett v. Haston, 279 Ark. 367, 651 S.W.2d 460 (1983). To prevail on appeal, the appellant bears the burden of demonstrating that the trial court abused its discretion in awarding the attorney’s fees. Id.; Cole v. Scott, 264 Ark. 800, 575 S.W.2d 149 (1979). “The test necessarily remains whether the fee awarded is reasonable in view of the services rendered.” Id. at 803, 575 S.W.2d at 151.

In Johnston v. Smith, 248 Ark. 929, 454 S.W.2d 649 (1970), this court discussed the reasoning behind the statutory provision for attorney’s fees:

Justification for these statutes has been found in the importance of painstaking preparation before filing of the suit and the necessity for meticulous compliance with procedural requirements thereafter in order to assure that all parties in interest are before the court and that there are no unnecessary impediments to a proper conclusion of the proceeding. These measures obviously inure to the benefit of those owning any share of the property. To require the cotenant who institutes the action to bear more than his proportionate share of this burden is inequitable.

Id. at 933, 454 S.W.2d at 652.

In Robinson v. Champion, 251 Ark. 817, 475 S.W.2d 677 (1972), this court recited the pertinent considerations for determining the reasonableness of an award of attorney’s fees: (1) the attorney’s judgment, learning, ability, skill, experience, professional standing, and advice; (2) the relationship between the parties; (3) the amount or importance of the subject matter of the case; (4) the nature, extent, and difficulty of services in research, collection, and estimation of evidence and potential defenses, as well as advice given before any pleadings are filed or other visible steps are taken; (5) the preparation of pleadings; (6) the proceedings actually taken and the nature and extent of the litigation; (7) the time and labor devoted to the client’s cause; (8) the difficulties presented in the course of the litigation; (9) the results obtained; and (10) other factors beside the time visibly employed. This court subsequently recognized that these factors were pertinent in determining the reasonableness of attorney’s fees in partition suits. Cole, 264 Ark. 800, 575 S.W.2d 149. Both the trial court’s and this court’s experience and knowledge of the character of such services may be used as a guide, with considerable weight being given to the ruling of the trial court. Robinson, 251 Ark. 817, 475 S.W.2d 677.

In light of the foregoing testimony and the reasoning employed by the trial court, we hold that the trial court did not abuse its discretion in awarding to Appellee’s attorney a fee of five percent (5%) of the total sales price of the three partitioned parcels. We agree that both parties to this suit benefitted from the partition of the land; it is of no consequence that Appellants incurred more debt after the sale, as they chose to purchase two of the three parcels.

We are not persuaded by Appellants’ argument that the trial court completely ignored the factor of the attorney’s time spent working on the case. Appellants contend that the trial court viewed the amount of time spent preparing such a case to be unimportant. In their attempt to support this contention, Appellants’ abstract depicts the court’s ruling as follows:

There is nothing in the record to show how much time Mr. Pearson worked, but that is unimportant.

This is not, however, a correct or complete recitation of the trial court’s ruling, which is:

There is no evidence in the record to show how much time Mr. Pearson spent. But this is unimportant as a decisive factor. It is important as being one of the factors that may be considered. But in so doing, this has to be counter-balanced or at least weighed along with the skill and knowledge and expertise required to carry a case to a successful conclusion. [Emphasis added.]

It is clear from the trial court’s ruling that time expended on a case is a factor it considers when awarding attorney’s fees. Thus, Appellants’ argument that the trial court ignored the allegedly small amount of time that Appellee’s attorney spent on the case clearly misconstrues the trial court’s ruling.

Furthermore, we are unwilling to hold that any award of attorney’s fees pursuant to section 18-60-419 that is based upon a percentage of the total sales price of the partitioned property is per se unreasonable. We are persuaded by the trial court’s reasoning that the amount of attorney’s fees awarded will always be capable of being reduced to a percentage of the total sales price of the property, and that the use of a percentage fee is simply a matter of convenience to the trial court. Moreover, we see no valid reason, nor have Appellants presented us with any such reason, to overrule our prior cases favoring the trial court’s discretion over a fixed formula when determining the amount of attorney’s fees in partition suits. It is implicit that when using such discretion, the trial court must consider those factors stated in Robinson, 251 Ark. 817, 475 S.W.2d 677, and Cole, 264 Ark. 800, 575 S.W.2d 149, along with any other factors the court may find pertinent to the award of attorney’s fees. That is precisely what was done in this case, and we therefore affirm the trial court’s decision.

Newbern, J., not participating.


source: Caselaw Access Project

author: Robert L. Brown, Justice. Ray Thornton, Justice,

license: Public Domain

text:
    CITY of NORTH LITTLE ROCK and North Little Rock Airport Commission v. PULASKI COUNTY, Arkansas and B.A. McIntosh, Pulaski County Assessor
    97-714
    968 S.W.2d 582
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998

      Timothy Davis Fox, for appellants.

      Karla M. Burnett, Ass’t County Att’y and Amanda Mankin, Staff Att’y, for appellees.
   Robert L. Brown, Justice.

Appellants City of North Litde Rock and the North Little Rock Airport Commission (joindy referred to in this opinion as North Little Rock) filed an amended appeal in circuit court from a decision of the Pulaski County Court that affirmed the assessment for ad valorem tax purposes of eleven parcels of real property located within the domain of the North Little Rock Municipal Airport. North Little Rock claimed that Act 438 of 1995 designated the eleven parcels as public property and, thus, the parcels should be exempt from taxation under Ark. Const, art. 16, § 5, and removed from the County tax rolls. North Little Rock also requested that the property tax assessments for the years 1992 through 1995 be declared null and void.

Appellees, Pulaski County and the County Assessor (County), answered and moved for a declaratory judgment on the grounds (1) that Act 438 of 1995 should not be given retroactive effect; and (2) that Act 438 violated Ark. Const, art. 16, § 6, which renders void any law exempting property from taxation other than as provided in the Arkansas Constitution.

The circuit court agreed with the County and entered an order declaring that the General Assembly had violated the separation-of-powers doctrine when it enacted Act 438 of 1995. See Ark. Const, art. 4, § 2. It did so, according to the court, by usurping the judicial fact-finding function and by declaring through legislation that airport property is acquired and held exclusively for public purposes. The circuit court further determined that because Act 438 established that certain airport property was per se exempt as being used exclusively for public purposes under Ark. Const, art. 16, § 5(b), this violated the proscription against laws exempting property from taxation other than as provided in the Arkansas Constitution. See Ark. Const, art. 16, § 6. The matter then went to hearing before the court on the issues of whether the eleven parcels were exempt after this court’s opinion in City of Little Rock v. McIntosh, 319 Ark. 423, 892 S.W.2d 462 (1995), and whether the County’s revaluation efforts complied with Ark. Code Ann. § 26-26-1011 (Repl. 1997), which requires assessments to occur between the first Monday in January and July 1 of a given year.

At the hearing before the circuit court, Judy Wheeler, manager of the North Little Rock Municipal Airport, testified that the airport is a general aviation airport that owns land and provides service to single and twin-engine planes but not for commercial air traffic. She testified that the airport enters into leases with individuals and private entities to use its land to house hangars, fuel stations, repair stations, and the like, with the lessees being responsible for the construction of their own improvements. She explained that in the past the leases were silent on who was required to pay county ad valorem taxes on real property because there had never before been a county assessment. However, the leases were changed in 1992 to require that the lessee pay those taxes.

Ms. Wheeler testified that the North Little Rock Airport received a “Notice of Property Revaluation” dated July 11, 1993, that purported to notify North Little Rock of the assessment of the entire amount of airport property, including runways, taxiways, and common areas. She explained that North Little Rock then went before the County Equalization Board to complain about the entire property’s being assessed. On September 9, 1993, the Equalization Board determined that only the eleven parcels which were leased to private entities should be assessed.

The crux of Ms. Wheeler’s testimony on direct examination was that hangars and other improvements by lessees were an integral part of the operation and maintenance of a municipal airport and that North Little Rock could ill afford to construct the improvements itself. Furthermore, FAA regulations did not require North Little Rock to construct hangars and terminal facilities. Rather, the FAA only required that suitable space and reasonable prices be made available for those who wished to do so. On cross-examination, Ms. Wheeler admitted that although the “Notice of Property Revaluation” reflected the date July 11, 1993, she did not know when the assessment of ad valorem taxes actually occurred.

Following the hearing, the circuit court entered its order, finding the following: (1) any issues regarding 1992 ad valorem taxes were moot; (2) taxes for the year 1993 were assessed in compliance with § 26-26-1011; and (3) the eleven parcels were not exempt under Ark. Const. art. 16, § 5, and City of Little Rock v. McIntosh, supra.

North Little Rock now appeals from both orders of the circuit court and urges, first, that the circuit court erred in declaring Act 438 unconstitutional. We disagree. In reviewing the constitutionality of legislative acts, we start with a presumption of constitutional validity. Board of Trustees v. City of Little Rock, 295 Ark. 585, 589, 750 S.W.2d 950, 952 (1988). Statutes will not be struck down unless they conflict with the constitution “clearly and unmistakably.” Id., citing Board of Trustees of Municipal Judges and Clerks Fund, City of Little Rock v. Beard, 273 Ark. 423, 620 S.W.2d 295 (1981); Buzbee v. Hutton, 186 Ark. 134, 52 S.W.2d 647 (1932).

The Arkansas Constitution specifically exempts from ad valorem taxes “public property used exclusively for public purposes.” Ark. Const. art. 16, § 5(b). In the past, we have declined to give a judicial definition to the phrase “public purpose” because its meaning is not exact, nor is it prone to a static definition. Holiday Is. Suburban Improvement Dist. #1 v. Williams, 295 Ark. 442, 749 S.W.2d 314 (1988). See Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984). Instead, we look to legislative language for such pronouncements. See Murphy v. Epes, supra; Kerr v. East Central Arkansas Housing Authority, 208 Ark. 625, 187 S.W.2d 189 (1945). The Act must prevail unless there is something in the Arkansas Constitution which restrains the legislature from saying that a designated course of conduct or a policy is for the public welfare, or unless the thing authorized is so demonstrably wrong that reasonable people would not believe that this was the legislative intent. Murphy, 283 Ark. at 525, 678 S.W.2d at 357. We reverse a legislative public-purpose declaration only if the legislature acted arbitrarily, unreasonably, or capriciously. Id. at 525-26. 678 S.W.2d at 357.

In City of Little Rock v. McIntosh, supra, this court held that certain tracts of property at the Little Rock Municipal Airport leased to private entities were not exempt from ad valorem taxation under Ark. Const. art. 16, § 5. Our holding was based on the fact that the City of Little Rock had failed to prove that the tracts leased to private businesses, which were conceded to be “public land,” were being used “exclusively” for public purposes. In doing so, we focused on the actual use of the land and whether that use was solely for public purposes. The private businesses involved in McIntosh included four car rental companies, one aircraft modification company, two aircraft service companies, and three fixed-based operators.

Eleven days after the McIntosh decision, the General Assembly passed Act 438 of 1995, with an emergency clause. The Act provided in pertinent part:

(a) The ownership, operation, and management of municipal airports . . . and their related properties and facilities, including without Hmitation runways, hangars, terminal facilities, and suitable areas or space which are made available to those who are willing and otherwise qualified to offer transportation services to the public or support services to aircraft operators, all as may be necessary or desirable for the servicing of aircraft in commercial or general aviation or for the comfort and accommodation of air travelers traveling in commercial or general aviation, are vital to the economic welfare of the state of Arkansas and its people and such airports and their related properties and facilities are declared and confirmed to be used exclusively for public purposes.
(b) All airport property and related properties and facilities owned by a municipality, county, or other public agency for the purposes enumerated in this section are declared to be acquired and used exclusively for public and governmental purposes and as a matter of public necessity and shall be exempt from ad valorem taxation to the same extent as other property used exclusively for public purposes.

1995 Ark. Acts 438, now codified at Ark. Code Ann. § 14-356-102 (Supp. 1997).

In its appeal, North Little Rock agrees with the circuit court that the General Assembly violated the doctrine of separation of powers by declaring various uses involved in the operation of an airport to be exempt from ad valorem taxation. Despite that acknowledgment, North Little Rock contends that the General Assembly did have the authority to declare what property falls into the category of property used for public purposes and that the circuit court erred in not recognizing that fact. Thus, North Little Rock urges this court to cut and paste and salvage that portion of subsection (a) of Act 438 which declares that certain activities are used for public purposes. In doing so, North Little Rock also urges that we strike the word “exclusively” in subsection (a).

In determining whether the invalidity of part of an act is fatal to the entire legislation, this court looks to (1) whether a single purpose is meant to be accomplished by the act, and (2) whether the sections of the act are interrelated and dependent upon each other. U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994); Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W.2d 74 (1971); Faubus v. Kinney, 239 Ark. 443, 389 S.W.2d 887 (1965).

The purpose of Act 438 can be garnered from its title:

AN ACT to Amend Title 14, Subtitle 22, Chapter 356 of the Arkansas Code for the Purpose of Declaring That Airports Owned by Municipalities, Counties, or Other Public Agencies are Used Exclusively for Public Purposes and Therefore Exempt From Ad Valorem Taxation; Declaring an Emergency; and for Other Purposes.

1995 Ark. Acts 438. This theme of tax exemption is repeated in subsection (b) and the Act’s Emergency Clause, and the test for exemption - — ■ exclusively used for public purposes — is repeated in subsection (a) as well. The clear purpose of the Act is to undertake a function which is reserved to the judiciary, that is, the declaration of property exempt from ad valorem taxes because of its exclusive use for public purposes.

Furthermore, it is obvious that the provisions of the act, only two in number, and both of which contain language conceded to be infirm by North Litde Rock, are dependent upon each other and interrelated and evince the General Assembly’s intent to pass the act as a whole or not at all. U.S. Term Limits, Inc. v. Hill, supra; Wenderoth v. City of Fort Smith, supra. Although a severability clause is included in Act 438, that factor alone is not determinative. U.S. Term Limits, Inc. v. Hill, supra. Under the circumstances, we are loath to strike subsection (b) of Act 438 as unconstitutional and strike the word “exclusively” in subsection (a), when that same word is used in the Act’s title. Were we to do so, it would smack of legislative drafting on our part.

In short, we draw a clear distinction between the General Assembly’s declaration of what is a public purpose on the one hand, which is entirely legitimate, and a per se determination by the General Assembly that certain private property is actually used exclusively for public purposes, and thus exempt from tax, on the other. The latter, as the circuit court correctly observed, is a judicial function performed only after appropriate fact-finding by the trial court. For the foregoing reasons, we conclude that Act 438 must be struck in its entirety.

The dissent emphasizes our holding in Hogue v. The Housing Authority of North Little Rock, 201 Ark. 263, 144 S.W.2d 49 (1940), where we held the Housing Authorities Act (Act 298 of 1937) to be constitutional. In doing so, we discussed in Hogue whether property acquired by the housing authorities would be exclusively used for public purposes pursuant to Article 16, § 5, of the Arkansas Constitution. We concluded that the purpose of Act 298 was slum clearance, which is a public purpose, and that the property acquired by the housing authorities was exclusively used for public purposes and, thus, exempt from ad valorem taxes. Absent in our analysis in Hogue was any discussion of separation of powers or any consideration of whether the General Assembly had overstepped its bounds in declaring a tax exemption. Accordingly, because the separation-of-powers issue was not reached, or even considered in Hogue, we do not deem it to be governing authority for the case at hand.

For its second point, North Little Rock contends that the 1993 tax was illegal because it was not assessed before July 1, 1993, as required by Ark. Code Ann. § 26-26-1101 (Repl. 1992). Because North Little Rock received a “Notice of Property Revaluation” dated July 11, 1993, it contends that the assessment could not have been timely. As further evidence, North Little Rock claims that the initial assessment was improper because it covered the entire airport and was later reassessed in either August or September 1993 by the County Board of Equalization with respect to the eleven parcels at issue. North Little Rock also shows us that the July 11, 1993 notice included an appraised land value of $0, which would not have resulted in any tax liability.

The County responds that North Little Rock failed to satisfy its burden of proving when the appraisal and assessment occurred because notice of assessment is not proof of when the assessment actually occurred. The County is correct. North Little Rock appears to believe that it can make this allegation of an untimely assessment without following up with proof. Surely, the date of a notice of revaluation is not conclusive proof of when the assessment actually took place. Because North Little Rock has not met its burden in this regard, there is no basis for reversal.

Affirmed.

Corbin and Thornton, JJ., concur in part and dissent in part.

Ray Thornton, Justice,

concurring in part and dissenting in part. The majority has correctly determined that the city of North Little Rock did not prove that the 1993 tax assessment on airport property was invalid because of Pulaski County’s failure to timely make an assessment. As pointed out by the majority, the allegation of an untimely assessment by the county must be supported by proof, and the trial court did not err in determining that the city had not met the burden of proof. I concur with the majority’s conclusion that, under well established principles of law, the General Assembly does not have the power to exempt property from taxation. See, e.g., Little Rock & Fort Smith Ry. Co. v. Worthen, 46 Ark. 312 (1885); Tedford v. Vauix, 183 Ark. 240, 35 S.W.2d 346 (1931). I further agree that, in deciding this case, we should “draw a clear distinction between the General Assembly’s declaration of what is a public purpose on the one hand, which is entirely legitimate, and a per se determination by the General Assembly that certain private property is . . . exempt from tax, on the other.” However, because I believe the interpretation of this statute affords the court the opportunity of drawing that distinction between the provisions of the statute that are void, and those provisions that legitimately and properly articulate public-policy considerations, I respectfully dissent from the majority’s conclusion that the entire act must be invalidated.

In accordance with the well-established presumption of constitutional validity of a legislative enactment, we have specifically held that a statutory provision that is virtually identical to the provisions of subsection (a) of Act 438 of 1995 is constitutional. Hogue v. The Housing Authority of North Little Rock, 201 Ark. 263, 144 S.W.2d 49 (1940). In 1937, the General Assembly adopted Act 298, which authorized the creation of housing authorities in certain cities and in all counties for the stated public purpose of clearing slums and building housing projects. Section 23 of that Act provided in part as follows:

Section 23. Tax Exemption and Payments in Lieu of Taxes. The property of an authority is declared to be public property used for essential and exclusively public and governmental purposes, and not for profit, and such property and an authority shall be exempt from all taxes and special assessments of the State or any State Public Body thereof."

This provision of the Act was attacked because it contained language that declared such property to be used for exclusive public purposes, and declared that such property should be exempt from taxes. In Hogue, we considered section 5 of Article 16 of our constitution, which provides in part:

All property subject to taxation shall be taxed according to its value .... Provided, further, that the following property shall be exempt from taxation; public property used exclusively for public purposes . . .; and buildings and grounds and materials used exclusively for pubhc charity.

We further considered section 6 of Article 16 of our constitution, which provides that “All laws exempting property from taxation other than as provided in this Constitution shall be void.” The argument was vigorously presented to us that the statute was void in attempting to extend an exemption from taxes, and we determined that the statute was not unconstitutional, reasoning as follows:

The point is made and insisted upon that the property of the Housing Authority is not exclusively used for pubfic or charitable purposes and that before it may be exempted from taxation such property must be exclusively used for this purpose. We think a fair construction of the act is that all the property acquired by [the Housing Authority] is to be used and will be used in the clearance of slum areas and the furnishing of safe and sanitary dwelling accommodations free from conditions of overcrowding and want of air and light prevailing in slum areas.

Hogue, 201 Ark. at 272, 144 S.W.2d at 54. After citing cases from Tennessee and Texas interpreting similar statutory and constitutional provisions, we stated:

We, therefore, hold that the act in question is not vulnerable because it exempted the property of the Housing Authority from all taxes and special assessments by the state or any public body thereof.

Id. at 274, 144 S.W.2d at 55.

The issue of the constitutionality of Act 298 of 1937 was presented to us again in Kerr v. East Central Arkansas Regional Housing Authority, 208 Ark 625, 187 S.W.2d 189 (1945), where we said:

Public policy is declared by the General Assembly; not by courts. Unless there is something in the Constitution restraining the Legislature from saying that a designated course of conduct or a policy is for the public welfare, or unless the thing authorized is so demonstrably wrong that reasonable people would not believe that such was the legislative intent, the Act must prevail.
Since essentials of Act 298 were sustained in the Hogue case, subsequently adhered to, and since the distinction to be drawn is not susceptible of being measured, graded, or determined by ratio or known formula, it must again be held that the legislative finding is binding and that the purpose to be served is a public one.

Id. at 630, 187 S.W.2d at 192.

The principle that the General Assembly should declare the public policy of the State and that its declarations as to public purpose will prevail unless the legislature acted arbitrarily, unreasonably, or capriciously has been firmly established. See, e.g., Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984). Based on that principle, the legislature has adopted a number of definitions of “public property used exclusively for public purposes.” A few examples are illustrative:

(a) It is hereby found and determined by the Seventy-Eighth General Assembly that all property owned by the Arkansas State Highway Commission or the Arkansas State Highway and Transportation Department is public property used exclusively for public purposes.

Ark. Code Ann. § 26-3-308 (Repl. 1997).

All tollway projects, and all the properties thereof, are legislatively determined and declared to be public properties used exclusively for public purposes and the legislative intent is that tollway projects, and all properties thereof, shall be exempt from ad valorem taxes under and pursuant to the provisions of Arkansas Constitution, Article 16, Section 5.

Ark. Code Ann. § 14-303-104 (1987).

(a) All transit systems formed under this chapter, and all the properties thereof, are declared to be public properties used exclusively for public purposes, (b) The legislative intent of this section is that these transit systems, and all property thereof shall be exempt from: (1) Ad valorem taxes under and pursuant to the provisions of Arkansas Constitution, Article 16, § 5[.]

Ark. Code Ann. § 14-334-106 (1987).

Similar declarations of legislative intent to define uses of property as being for public purposes are found in Ark. Code Ann. §§ 14-164-701 (1987) (industrial facilities); 14-169-804 (1987) (urban renewal); 27-71-104 (Repl. 1994) (turnpikes); and § 26-3-301 (Repl. 1997), which lists more than a dozen uses of property that are legislatively declared to be used for public purposes, and consequently, exempted from taxation.

Until Act 438 of 1995 was adopted, the General Assembly had not established the considerations of public policy with respect to the public purpose of airport operations. Without the benefit of such a legislative declaration of public purpose, we reached a decision in Little Rock Municipal Airport v. McIntosh, 319 Ark. 423, 892 S.W.2d 462 (1995), in which we concluded that a number of airport-related operations were not exempt from ad valorem taxation as property used exclusively for public purposes. In that case, we decided that aircraft-service centers and fixed-base operators were among the operations that were not used exclusively for the public purpose of providing dependable and safe air travel. Without the benefit of a legislative declaration of public policy, we did not recognize that such operations are not only essential to providing fuel for aircraft so they can continue their journey, nor did we recognize that these operations are essential for public safety in providing, in most cases, the only radio communication between an aircraft and the airport.

It is not surprising that, promptly following our decision in McIntosh, the General Assembly sought, with Act 438, to inform the court of the public-policy considerations relating to the public purpose of maintaining safe and reliable facilities for those who travel by air. That declaration of public policy is a proper legislative action. However, the General Assembly also exceeded its authority by declaring that certain legislatively defined airport properties are used “exclusively” for public purposes, and exempt from ad valorem taxation. This violates principles of separation of powers, and is therefore unconstitutional and void.

Act 438 contains a severability clause providing that if any part of the act were determined to be unconstitutional, the other provisions of the act should remain valid. The policy pronouncements of Act 438 are not significantly different from the provision of Act 286 of 1937 that we have held to be constitutional, and are very similar to provisions in numerous other statutes.

Where part of an act is unconstitutional, but other provisions are valid, we have recognized the efficacy of severability clauses, and have had no difficulty in removing words or phrases, or even, entire sections from statutes when those provisions offended constitutional limitations upon legislative action. Levy v. Albright, 204 Ark. 657, 163 S.W.2d 529 (1942).

If an act is constitutional in part, the valid portion will be sustained if complete in itself and capable of being executed in accordance with the apparent legislative intent. Id. at 659, 163 S.W.2d at 531. The constitutional and unconstitutional provisions may even be contained in the same section. Id. If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. Id. at 660, 163 S.W.2d at 531.

In Levy, we struck the words “The Supreme Court” from a list of courts granted original jurisdiction when the grant of jurisdiction to the supreme court exceeded constitutional limitations, but sustained the constitutionality of the act as it related to other courts, and to its general purposes.

In my opinion, Act 438 was drafted to accomplish two discrete purposes: (1) a declaration of public policy, and (2) a legislative declaration of tax exemption. We should sustain as constitutional, the public-policy declarations contained in the Act. There is only one word in Act 438 that can be interpreted as overstepping the authority of the General Assembly. The word “exclusively” is used once in section (a) and twice in section (b). I would strike the offending word “exclusively” from the Act, or, alternatively, rely on Hogue as authority for determining that the use of that word does not invalidate the act.

I also write to encourage legislative enactment of a more precisely drawn statute declaring that the operation of a publicly owned airport, with its runways, hangars, taxiways, instrument approach systems, terminal buildings, aircraft service and repair centers, flight training programs and facilities, and fixed-base operators, together with radio communications and other facilities necessary and essential to reliable and safe air travel for the public is declared to be public property used for a public purpose. This court should welcome legislative action to establish public policy. The application of that public policy to a particular set of facts under constitutional constraints will of course remain a judicial function.

Corbin, J., joins.


author: Annabelle Clinton Imber, Justice.

text:
    CENTRAL EMERGENCY MEDICAL SERVICES, INC. v. STATE of Arkansas
    97-811
    966 S.W.2d 257
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998
    [Petition for rehearing denied May 21, 1998.]

      Davis, Cox & Wright, PLC, by: William Jackson Butt, II and David L. McCune, for appellant.
    No response.
   Annabelle Clinton Imber, Justice.

The appellant appeals from an order finding it in contempt of court for failing to deliver certain documents in its possession in response to a prosecutorial subpoena. We dismiss the appeal as moot because the record demonstrates that the appellant purged its contempt.

On November 19, 1996, an information was filed in Washington County Circuit Court charging Duane Allan Faulkenbury with attempted murder, later amended to a charge of first-degree battery. The record then shows that the prosecutor served the appellant, Central Emergency Medical Services, Inc., an emergency medical care and transportation provider, with two subpoenas duces tecum ordering CEMS’s keeper of records to produce all of its records pertaining to Robert French. Although it is not clear from the record, it appears that French was Faulkenbury’s victim. CEMS had rendered professional services to French.

CEMS filed a Motion to Quash Subpoena Duces Tecum. In its motion CEMS claimed both French’s right of privacy in medical records generated by it with respect to his medical care, as well as French’s physician-patient privilege under Ark. R. Evid. 503. Following a hearing on February 18, 1997, the trial court found that the State was entitled to the information with the understanding that it would not be disseminated to the public. From the bench, the trial court ordered CEMS to produce the information, and announced that it would “issue a standing protective order that if [counsel] can agree on the language of that order which basically provides that in this case and any cases in the future, that [CEMS] is obligated to produce that information to the State, the Prosecuting Attorney in this circuit, and the State is ordered not to disseminate it to the public in any form or fashion pending further orders of the Court.”. Counsel for both parties responded that this arrangement was agreeable.

On March 3, 1997, the trial court entered an order of contempt for CEMS’s failure to comply with its bench ruling of February 18, 1997. The trial court announced that CEMS could purge its contempt finding by presenting the records to the court no later than February 25, 1997. The order concludes with the following language, “Should CEMS fail to deliver these documents to this Court by said time and date, a fine shall be imposed upon CEMS in the amount of $100.00.” The next day, CEMS filed its notice of appeal from the March 3 contempt order. A letter from counsel for CEMS, dated March 12, 1997, to the Clerk of the Washington County Circuit Court enclosed a check in the amount of $100 for the fine imposed by the trial court’s March 3 contempt order.

While this is an appeal from a contempt order, the essence of CEMS’s brief (the State has faded to file a brief in response) is that the trial court erred in declining to find that its medical records pertaining to French were privileged under the physician-patient privilege found at Ark. R. Evid. 503. Specifically, CEMS contends that a paramedic may be considered a “physician” as that term is used in Rule 503(a)(2). We are precluded from reaching this novel issue due to the mootness of CEMS’s case.

We initially note that CEMS did not file it notice of appeal from the trial court’s order denying its motion to quash, but instead from the contempt order. A order of contempt is a

final, appealable order. See Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994). In a case with a similar procedural history as the present case, In re Subpoena of Badami, 309 Ark. 511, 831 S.W.2d 905 (1992), we plainly held that an order denying a protective order to quash a subpoena was not a final, appealable order. In Badami this court expressed some concern as to the possibility of multiple appeals, given that the appellant there could have been found in contempt following an affirmance of the trial court’s order denying the motion to quash, resulting in yet another appeal. There is no such problem in this case.

However, the record reflects that CEMS paid the fine which was imposed by the trial court for not producing the records. Given the manner in which the trial court couched its order, CEMS had two choices — either deliver the records to the prosecutor or be found in contempt resulting in the imposition of a fine. CEMS chose the latter option, paid the fine, and in doing so purged its contempt. Once CEMS purged its contempt, it rendered the propriety of the contempt order moot. See Minge v. Minge, 226 Ark. 262, 289 S.W.2d 189 (1956) (“Appellant purged himself of the contempt by paying the delinquent support money, and was released from jail; hence, the question of whether the court erred in holding him in contempt is moot.”). Given that the case is moot, the appellant asks us for an advisory opinion. This court does not render advisory opinions. See Johnson v. State, 319 Ark. 3, 888 S.W.2d 661 (1994). Accordingly, we dismiss the appeal. In doing so, we note that the issue presented in this appeal does not appear to be one that is likely to evade our review in the future.

Appeal dismissed.


author: Ray Thornton, Justice. Tom Glaze, Justice, dissenting.

text:
    Pearl Gennette ANTHONY v. STATE of Arkansas
    CR 97-655
    967 S.W.2d 552
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998
    [Petition for rehearing denied May 21, 1998.]

      Kiel & Goodson, by: John C. Goodson, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.

       Glaze, J., would grant.

   Ray Thornton, Justice.

Appellant Pearl Gennette Anthony was convicted of two counts of delivery of a controlled substance, cocaine, and sentenced to two consecutive thirty-year terms of imprisonment in the Arkansas Department of Correction. She does not challenge the sufficiency of the evidence to support her convictions. Instead, she argues that the trial court erred by (1) allowing the State to introduce certain rebuttal testimony, (2) admitting a bus manifest as a business record, and (3) improperly commenting on the evidence. We agree with the first point and reverse and remand for a new trial.

In her first point of appeal, appellant contends that the trial court erred during the rebuttal phase by permitting the State to introduce portions of her testimony from her first trial, which ended in a mistrial, and the testimony of Holly Scott. Appellant elected not to testify at her second trial, and she alleges the introduction of this testimony was improper in two respects: (1) the introduction of her testimony from the first trial was, in effect, a direct comment on her failure to testify in the second trial, in violation of her Fifth Amendment privilege against self-incrimination; and (2) both her testimony and that of Ms. Scott were improper rebuttal.

During its case in chief, the State presented the testimony of Johnny Alexander, a detective with the Pine Bluff Police Department, who testified that he bought cocaine from appellant on two separate occasions on the evening of October 19, 1995. Detective Alexander testified that he and a confidential informant purchased crack cocaine from appellant at her home around 7:48 p.m. He further testified that around 11:30 p.m., he returned to appellant’s home to make a second buy.

After the State rested, appellant presented the testimony of Faye Walker. Ms. Walker testified that, on the evening of October 19, 1995, she saw appellant in Idabel, Oklahoma, at Choctaw Bingo, a bingo parlor. On cross-examination, Ms. Walker testified that she did not know whether appellant won any money that night or how appellant traveled to the bingo parlor.

Appellant also presented the testimony of her son, Edmund Colbert, who testified that she left their residence at approximately two or three o’clock on the afternoon of October 19, 1995. Mr. Colbert testified that appellant told him she was “going up town,” and then she would “probably go to bingo.” He also testified that he was home that evening and that appellant returned home “a little after one.”

Before the defense rested, the court advised appellant of her Fifth Amendment rights, and she choose not to testify. During the rebuttal phase, the trial court allowed the State to introduce testimony from appellant’s first trial where she had testified that she was playing bingo in Idabel, Oklahoma, on the night she allegedly sold cocaine to Detective Alexander, that she won two mini pots that night, and that she rode a Sue Long Corporation bus to the bingo parlor. Appellant objected to the use of her prior testimony by asserting that it was improper rebuttal, that it violated her Fifth Amendment right against self-incrimination, and that it was misleading and confusing. The trial court ruled that appellant’s prior testimony was admissible for the purpose of rebutting the defense of alibi.

After the State read portions of appellant’s testimony from her first trial, the trial court then permitted the State to introduce the testimony of Holly Scott, co-manager of Choctaw Bingo. Ms. Scott testified that their records showed that appellant neither won two mini pots nor rode the Sue Long bus to the bingo parlor that night.

We begin our review by addressing appellant’s contention that the admission of her prior testimony amounted to a direct comment on her election not to testify in violation of her Fifth Amendment rights. This argument is without merit.

In Harrison v. United States, 392 U.S. 219 (1968), the Supreme Court considered whether the defendant’s former testimony was improperly admitted at his second trial, following a reversal of his conviction in the former trial. The Court held that because the defendant was compelled to testify in the earlier case to respond to illegally obtained confessions, his testimony in that case violated his Fifth Amendment right against self-incrimination and could not be introduced in the second trial. Id. at 224-25. However, the Court specifically noted:

In this case we need not and do not question the general evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings. A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.

Id. at 222. See also United States v. Houp, 462 F.2d 1338 (8th Cir. 1972); People v. Carlson, 677 P.2d 390 (Colo. Ct. App. 1983); Sherley v. Commonwealth, 889 S.W.2d 794 (Ky. 1994); State v. Hunt, 457 S.E.2d 276 (N.C. 1994); Bryan v. State, 837 S.W.2d 637 (Tex. Crim. App. 1992).

Based on the authorities cited above, we conclude that, by voluntarily testifying at her first trial, appellant waived her privilege against self-incrimination with respect to the testimony that she gave. The fact that appellant exercised her right to remain silent at the second trial does not preclude the use of her testimony given at the first trial, if it would otherwise be admissible. Accordingly, we turn to appellant’s argument regarding the admissibility of the evidence during rebuttal.

Appellant contends that neither her prior testimony nor the testimony of Ms. Scott was proper rebuttal because it was not responsive to any evidence that she introduced in her second trial. Appellant argues that the rebuttal evidence did not contradict the testimony of Ms. Walker, the alibi witness; instead, Ms. Scott’s testimony impeached appellant’s prior testimony.

The State, however, asserts that the evidence was properly admitted as rebuttal in order to show that appellant’s alibi was fabricated. The State relies primarily on Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982), in support of this proposition. In Kellensworth, the defendant did not testify, but his parents testified in his defense and established an alibi. Id. at 130, 633 S.W.2d at 23. The State called a rebuttal witness who admitted that he had testified about a false alibi during the defendant’s previous trial, which had ended in a mistrial. Id. Defendant argued that the testimony of the rebuttal witness was inadmissible because it improperly put his character in issue and attacked the credibility of his parents upon a collateral issue. Id.

This court, noting that the defendant failed to cite any authority for his argument, held that the rebuttal testimony was “clearly admissible.” Id. We stated:

It is settled beyond question that a party’s attempt to fabricate evidence is admissible, not merely as an admission under Uniform Evidence Rule 801(d)(2) but as proof relevant to show his own belief that his case is weak. As one court has said, in a case involving a fabricated alibi, “fabrication of evidence of innocence is cogent evidence of guilt.” Harvey v. United States, 215 F.2d 330 (D.C. Cir., 1954). In a case similar to the present one, involving the recantation of previous testimony about a fabricated alibi, the court held that the testimony was admissible not merely in rebuttal but as part of the prosecution’s case in chief, a point we do not reach. State v. Thompson, 71 S.D. 319, 24 N.W.2d 10 (1946).
Wigmore states the principle as being based upon one of the simplest of inferences:
It has always been understood — the inference, indeed, is one of the simplest in human experience — that a party’s falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not necessarily apply to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause.
Wigmore, Evidence, § 278 (Chadbourn Rev., 1979).

Kellensworth, 276 Ark. at 130-31, 633 S.W.2d at 23-24 (emphasis in original).

The State also cites Flowers v. State, 30 Ark. App. 204, 785 S.W.2d 242 (1990), where the court of appeals considered whether the trial court erred in admitting appellant’s pretrial statement to police to rebut her plea of self-defense. The court of appeals upheld the admission of the evidence and stated that “[a]s a rule of general application, proof of an attempt to fabricate evidence of innocence, or other conduct amounting to an obstruction of justice, is admissible.” Id. at 207, 785 S.W.2d at 243.

Under Kellensworth and Flowers, the evidence in question in the instant case was admissible during the State’s case in chief. If the prosecution had presented appellant’s prior testimony at that time, appellant would have had the opportunity to testify or to produce other evidence in support of her alibi. However, the State obtained an unfair advantage by introducing appellant’s prior testimony after the defense had completed its presentation and appellant had waived her right to testify. Moreover, appellant’s prior testimony did not contradict any testimony offered by appellant in this proceeding.

We are mindful that the trial court has discretion to decide the propriety of evidence offered in rebuttal. See Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996); Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995). However, genuine rebuttal is evidence offered in reply to new matters, Schalski, 322 Ark. at 67-68, 907 S.W.2d at 696, and we have, on occasion, disallowed evidence presented as rebuttal where the evidence was not responsive to the defense evidence. See Landrum v. State, 320 Ark. 8, 894 S.W.2d 933 (1995) (concluding it was error for the trial court to allow rebuttal evidence on a collateral matter elicited by the prosecutor during cross-examination); Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986) (disallowing evidence presented as rebuttal where the testimony impeached responses extracted by the prosecutor on cross-examination).

We conclude that neither appellant’s prior testimony nor the testimony of Ms. Scott was proper rebuttal evidence. As noted above, Ms. Walker testified that she saw appellant at the bingo parlor on October 19, 1995. However, when the prosecutor asked Ms. Walker whether she knew if appellant won anything that night, she testified that she did not, and she also testified that she did not know how appellant traveled to the bingo parlor. The testimony presented by the prosecution during rebuttal did not contradict Ms. Walker’s testimony or any other evidence presented by appellant. By introducing appellant’s prior testimony, the prosecution created an opportunity to present Ms. Scott’s testimony, which was not otherwise appropriate as rebuttal, in an effort to discredit appellant’s alibi. Under these circumstances, we conclude that the introduction of this testimony during rebuttal constituted an abuse of the trial court’s discretion and prejudiced appellant.

Appellant’s second point for reversal is that the trial court erred in admitting into evidence the bus manifest because the prosecutor did not lay a sufficient foundation to admit the manifest under Ark. R. Evid. 803(6), the business records exception to the hearsay rule. Because we have held that Ms. Scott’s testimony was improper rebuttal, we need not address this issue.

For her final point on appeal, appellant contends that the trial court commented on the evidence while instructing the jury that a witness, Faye Walker, had violated Rule 615 of the Arkansas Rules of Evidence, the witness-exclusion rule. Specifically, appellant argues that, by instructing the jury as to the purposes of the rule, the trial court commented on the credibility of Ms. Walker, which is prohibited by Art. 7, Sec. 23, of the Arkansas Constitution.

This argument was not presented to the trial court and was not preserved for appeal. We have repeatedly held that in order to preserve an argument for appeal, the objection below must be specific enough to apprise the trial court of the particular error about which appellant complains. Gibson v. State, 316 Ark. 705, 875 S.W.2d 58 (1994). Furthermore, a party is bound on appeal by the scope and nature of the objections and arguments presented at trial. Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996).

When the trial court announced that it intended to instruct the jury concerning the purposes of Rule 615, as set out in Fite v. Friends of Mayflower, Inc., 13 Ark. App. 213, 682 S.W.2d 457 (1985), the appellant made a general objection. She did not, however, apprise the trial court of the argument she now makes on appeal; therefore, we do not address it.

For the reasons stated above, this case is reversed and remanded for a new trial.

Arnold, C.J., and Glaze and Imber, JJ., dissent.

Tom Glaze, Justice, dissenting.

I take serious exception to the part of the majority opinion that holds the trial court erred in allowing State rebuttal witness Holly Scott to testify, and in permitting the State to use appellant’s earlier trial testimony to show she lied. Appellant claimed she was playing bingo in Oklahoma on the evening of October 19, 1995. Contrary to appellant’s version of events, two police officers and their informant testified that she twice sold them cocaine on the same night.

At appellant’s first trial, she took the witness stand and testified that, on October 19, 1995, at about 7:00 p.m., she caught a bus at the State Line, rode to Choctaw where she played bingo, and won two mini pots. She said she returned to the State Line that night at 11:30 p.m. where her car had been parked and drove home. Appellant’s alibi contradicted the State’s case-in-chief wherein Officers Ervin Dennis and Johnny Alexander and informant Vercina Lindsey testified appellant twice sold them cocaine on the evening of October 19 — at 7:48 p.m. and 11:38 p.m.

At appellant’s second trial, the State presented its same case against appellant, but appellant chose not to testify in her own defense. Instead, she put her alibi defense before the jury by calling Faye Walker and Edmund Colbert, her son. Walker related that she had seen appellant on the evening in question at the bingo parlor. Appellant’s son, Colbert, who resided with appellant, also asserted his mother went to play bingo at Choctaw on the evening in dispute, .but his story became questionable on cross examination. The prosecutor asked Colbert whose car was parked in appellant’s front yard on the evening of October 19, 1995, and whose license number was YEW 523. Colbert’s response was that the car would have been his, but he had paid no attention to his license plate. Colbert claimed appellant, on October 19, 1995, had left home driving her car and stated that she would probably play bingo in Oklahoma. The State, however, submitted that license plate YEW 523 was appellant’s.

Obviously, details of appellant’s alibi defense were in dispute — for example, (1) whose car was in appellant’s yard at the time the drug sales took place? (2) did appellant drive her car to Oklahoma to play bingo or did she take a bus? (3) did appellant go to Oklahoma on October 19, or were the officers and their informant telling the truth when they testified she sold them cocaine twice on the evening in controversy?

Our case law is clear that the State is entitled to rebut appellant’s alibi by showing that it was fabricated. See McCree v. State, 280 Ark. 347, 658 S.W.2d 376 (1983). Flere, the trial court properly concluded that the State had a right to rebut appellant’s alibi defense and that a part of that rebuttal involved the credibility of the witnesses presented.

This court has held that it is within the trial court’s discretion to decide the propriety of evidence offered in rebuttal. Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996). Because appellant’s alibi conflicted with the State’s case and with significant details of her son’s testimony, it was well within the trial court’s discretion to allow the jury to have all versions of what was said to have occurred on October 19. How else could the jury determine whose story to believe?

Accordingly, the trial court allowed the State to call Holly Scott, co-manager of Choctaw Bingo, who testified that her business had no record of appellant winning a mini pot on October 19, 1995, nor was appellant’s name listed on the bus manifest showing she had been a passenger on the bus appellant claimed she rode that night. The trial court also allowed the State to read relevant portions of appellant’s earlier trial testimony where appellant claimed she drove her car to the State Line to board the bus to Oklahoma even though a car bearing her license plate had been seen in her front yard at the time officers said she had sold them cocaine.

In conclusion, the majority’s decision allows appellant to present the part of the alibi defense she thinks favors her, but to exclude those versions that draw her defense into serious question. Once appellant asserted alibi as a defense, all evidence touching on that defense was relevant. Again, the trial court clearly did not abuse its discretion when determining the propriety and admissibility of portions of appellant’s prior trial testimony and that of Scott’s. I would affirm.

Arnold, C.J., and Imber, J., join this dissent.


author: Ray Thornton, Justice.

text:
    Barbara S. MORSE v. SENTRY LIFE INSURANCE CO., Sentry Insurance of Alma, and Wilroy Lewis
    97-831
    967 S.W.2d 557
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998

      Phyllis Ann Atha, for appellant.

      Bethell, Callaway, Robertson, Beasley & Cowan, for appellees.
   Ray Thornton, Justice.

This case presents the question whether appellee Sentry Life Insurance Company (Sentry) was obligated to pay appellant Barbara Morse the proceeds of her late husband’s life insurance policy. Wilroy Lewis, an agent for Sentry and a family friend of the Morses, approached Gary and Barbara Morse in 1993 about obtaining their insurance business. The Morses opted to transfer their home, automobile, business, and life insurance to Sentry. On December 21, 1993, Sentry issued a $60,000 life insurance policy to Gary Morse, naming Barbara Morse as the primary beneficiary. Mr. Morse transferred the cash value of two policies, a $40,000 Southern Farm Bureau Life Insurance policy and a $10,000 Central States Health and Life Insurance policy, to the Sentry insurance policy.

On May 9, 1995, Gary Morse committed suicide. Under the Sentry policy, if an insured commits suicide within two years from the policy date, Sentry’s liability is limited to the premiums paid prior to the insured’s death. Sentry refused to pay the proceeds of the policy to Mrs. Morse, citing the policy’s suicide-exclusion provision; however, Sentry did refund to Mrs. Morse premiums paid on the policy in the amount of $11,644.97.

Mrs. Morse filed suit against Sentry, Sentry Life Insurance Company of Alma, and Wilroy Lewis. In her complaint, Mrs. Morse claimed that Sentry, through its agent, Mr. Lewis, misrepresented the benefits, advantages, conditions, and terms of the insurance policy that the Morses purchased. She alleged that Mr. Lewis led them to believe that the Sentry policy would be “a continuation of coverage” when they purchased the life insurance policy. Mrs. Morse claimed that these misrepresentations misled the Morses about the consequences of transferring their existing policy from Farm Bureau to Sentry.

Sentry filed two motions for summary judgment. The second motion included the deposition of Randy Bradley, a Farm Bureau agent, who testified that the Morses had been apprised of the adverse consequences of transferring a life insurance policy ten years earlier. The circuit court granted Sentry’s second motion for summary judgment, and this appeal followed.

Mrs. Morse raises two issues for reversal. She asserts that the trial court erred in granting summary judgment because Mr. Lewis misrepresented the terms of the life insurance policy and because genuine issues of material fact existed, making summary judgment inappropriate. We are unable to reach either of these arguments because Mrs. Morse has failed to provide us with an abstract of the orders and documents essential to our understanding of the issues.

Our review of a case on appeal is limited to the record as abstracted in the briefs. Hooker v. Farm Plan Corporation, 331 Ark. 418, 419, 962 S.W.2d 353 (1998). The Arkansas Supreme Court Rules require that an abstract should contain “material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” Ark. Sup. Ct. R. 4-2(a)(5) (1997). If an abstract fails to aid us in gaining an understanding of the issues on appeal, this court may affirm for noncompliance with the rule. Ark. Sup. Ct. R. 4-2(b)(2); see also Hooker, 331 Ark. at 419, 962 S.W.2d at 353. The judgment from which the appeal is raised, including relevant factual findings, is an essential part of the abstract. National Enterprises., Inc. v. REA, 329 Ark. 332, 947 S.W.2d 378 (1997). Failure to abstract a critical document precludes this court from considering any issues concerning it. Id.

Mrs. Morse has condensed a 160-page record into a four-page abstract. We note that the Sentry fife insurance policy or policy application, upon which this case is based, is not abstracted. Only a small portion of the text of the insurance contract appears in the abstract of appellees’ answer to Mrs. Morse’s complaint. Also, the trial court set forth detailed findings of fact and conclusions of law in a seven-page order that Mrs. Morse condenses to less than one-half of a page, which fails to include any findings of fact.

From the abstract before the court, we cannot determine whether any genuine issues of material fact remained regarding the elements of misrepresentation, such as whether the Morses justifiably relied on Mr. Lewis’s misrepresentations. Furthermore, we are left resorting to conjecture with respect to the trial court’s specific factual findings. Specifically, in her briefs, Mrs. Morse refers us to the record regarding matters both in the trial court’s findings of fact and conclusions of law and in her affidavit that are not abstracted. Without an abstract of such pleadings and documents, we are unable to conduct a meaningful review of Mrs. Morse’s assignments of error.

Because Mrs. Morse submitted a flagrantly deficient abstract, we affirm the circuit court’s order granting summary judgment.


text:
    Harold (“Butch”) SARGENT v. H. G. FOSTER, Prosecuting Attorney
    97-810
    966 S.W.2d 263
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Timothy Gauger, Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant Harold (“Butch”) Sargent, a citizen of Van Burén County, appeals the dismissal of his writ of mandamus to compel H. G. Foster, the Prosecuting Attorney, to oust Van Burén County Sheriff Mike Bridges from office. Mr. Sargent alleged that Sheriff Bridges; a candidate for reelection, violated the election laws when he transported election ballots from the printer, in Clinton, to the Sheriff of Election for Union Precinct, Shirley, Arkansas. As a result, Mr. Sargent urges that the Prosecuting Attorney had a nondiscretionary duty to oust Sheriff Bridges from office. We find no merit in Mr. Sargent’s arguments, and affirm.

In his petition for writ of mandamus, Mr. Sargent alleged that on November 5, 1996, Sheriff Mike Bridges, a candidate for reélection in a contested race for county sheriff, picked up voting ballots for the general election from the printer and, about forty minutes later, delivered the ballots to Glen Williams, Sheriff of Election at Shirley City Hall. Mr. Sargent further alleged that on November 11, 1996, he filed a complaint with the Prosecuting Attorney’s Office and that Deputy Prosecutor Stephen James told Mr. Sargent that he had heard about the incident and was not going to pursue the matter. Mr. Sargent also alleged that the Prosecuting Attorney’s Office did not take any action in the matter when he filed a second complaint regarding Sheriff Bridges’s conduct.

Mr. Sargent attached two affidavits to his petition: one from Glen Williams, and one from Maurice Bonds Whillock, County and Circuit Clerk and Ex-Officio Recorder. In his affidavit, Mr. Whillock stated that he received a telephone call from Glen Williams, who was working at the Union Precinct in Shirley, informing him that the precinct was running out or had run out of ballots. Mr. Whillock further stated that he then attempted to call each of the Van Burén County Election Commissioners to notify them of the problem, but that they were all unavailable. Mr. Whillock stated that he called the Van Burén County Sheriffs Office to ask a deputy to pick up ballots at the print shop and deliver them to Shirley. Mr. Whillock stated that while he was on the telephone with the County Sheriffs dispatcher, Sheriff Bridges walked into his office and that he asked Bridges to pick up and deliver the ballots. In his affidavit, Mr. Williams affirmed his telephone call to Mr. Whillock, and stated that Sheriff Bridges personally delivered ballots into his hands. Following a hearing on Mr. Sargent’s allegations, the trial court dismissed the petition for writ of mandamus pursuant to Ark. R. Civ. P. 12(b)(6).

Mr. Sargent claims that Sheriff Bridges violated Ark. Code Ann. § 7-5-211 (Repl. 1993) of the election laws. That section provides that the county board of election commissioners shall deliver ballots and other election supplies to the sheriff. However, section 7-5-211(b) states the following exception:

(b) If the sheriff is a candidate for reelection in a contested race, it shall be the duty of the county board of election commissioners to appoint some suitable person or persons in each precinct to perform the duties of the sheriff. The sheriff and his deputies are disqualified to discharge those duties in such case.

Mr. Sargent contends that Sheriff Bridges violated the elections laws when, as a candidate for reélection, he transported ballots from the printer to Union Precinct. Mr. Sargent further contends that this violation imposed a nondiscretionary duty on the Prosecuting Attorney to bring a usurpation action against SheriffBridges under Ark. Code Ann. § 16-118-105 (1987). Section 16-118-105 provides:

(b)(2) A person who continues to exercise an office after having committed an act, or omitted to do an act, of which the commission or omission, by law, created a forfeiture of his office, shall be subject to be proceeded against for a usurpation thereof. (Emphasis added.)
(b)(3)(A) It shall be the duty of the prosecuting attorney to institute the actions mentioned in this section against all persons who usurp county offices or franchises where there is no other person entitled thereto or the person entided fails to institute the action for three (3) months after the usurpation.

To determine whether the Prosecuting Attorney has a duty to prosecute, we must first consider whether Mr. Sargent has pleaded facts showing that a usurpation action may lie against SheriffBridges. Whether the prosecutor’s duty is discretionary or nondiscretionary does not become an issue until we determine that the pleaded facts show a usurpation action is appropriate.

The case Mr. Sargent cites in support of his position is not applicable to the facts of this case. See Faulkner v. Woodward, 203 Ark. 254, 156 S.W.2d 243 (1941). In Faulkner, the appellant filed suit against the appellee for usurpation of office and requested a judgment of ouster. We agreed with the appellant’s contention that the appellee was not eligible to fill the office of justice of the peace when he acted as a judge of the election in violation of Article 3, section 10 of the Arkansas Constitution. Article 3, section 10, the law in Faulkner that created the forfeiture, reads as follows: “Nor shall any election officer be eligible to any civil office to be filled at election at which he shall serve — save only to such subordinate municipal or local offices, below the'grade of city or county officers, as shall be designated by general law.”

Faulkner is distinguishable from the case before us. In that case, the law that the appellee violated dealt only with an office seeker’s eligibility to hold public office. We said that because appellee’s election was void, the appellant had the legal right to sue the appellant as a usurper. Faulkner, 203 Ark. at 257-58, 156 S.W.2d at 245 (quoting Pope’s Digest § 14326; C. & M.’s Digest § 10326).

In the case before us, Ark. Code Ann. §§ 7-1-103(28) to -103(29) (misdemeanor offenses) and 7-1-104 (felony offenses) (Repl. 1993) govern punishment for violating the election laws. Without determining which section applies to the offense alleged here, we conclude that Mr. Sargent has not pleaded sufficient facts to show a usurpation action may lie. Both of these sections require a conviction. In his pleadings, Mr. Sargent did not claim that Sheriff Bridges was convicted of a misdemeanor offense under the elections laws. Because he has not alleged facts that, by law, created a forfeiture of office, we do not reach the issue of whether the Prosecuting Attorney has a nondiscretionary duty to bring a usurpation action.

Mr. Sargent petitioned the trial court to compel the Prosecuting Attorney to remove Sheriff Bridges from office. Mandamus is an appropriate remedy when a public officer is called upon to do a plain and specific duty, which is required by law and which requires no exercise of discretion or official judgment. Saunders v. Neuse, 320 Ark. 547, 550, 898 S.W.2d 43, 45 (1995). However, a writ of mandamus is a discretionary remedy that will be issued only when the petitioner has shown a clear and certain legal right to the relief sought and there is no other adequate remedy. Id. In this case, a conviction is necessary before a public-office holder can be ousted. Because Mr. Sargent has not pleaded sufficient facts to show that he has a clear and certain legal right to relief, the trial court did not err in denying his petition.

Affirmed.


author: Per Curiam.

text:
    Ronita Faith BELL v. STATE of Arkansas
    CR 97-1004
    962 S.W.2d 814
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998

      Steve Kirk, for appellant.
   Per Curiam.

On March 26, 1998, we issued an order for Steve Kirk to appear before this court at 9:00 a.m., Thursday, April 9, 1998, to show cause why he should not be held in contempt of court for failure to file an appellant’s brief after a final extension had been granted.

Steve Kirk appeared on April 9, 1998. At that time, he entered a plea of not guilty and requested a hearing. Therefore, we appoint the Honorable Jack Lessenberry as a master to conduct the hearing. After the hearing, we direct the master to make findings of fact and file them with the court. Upon receiving the master’s findings, we will decide whether Steve Kirk should be held in contempt.


text:
    Henry Lee BRAZIL v. STATE of Arkansas
    CR 98-109
    962 S.W.2d 814
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998

      Robert N. Jeffery, for appellant.
    No response.
   Per Curiam.

Appellant Henry Lee Brazil, by his attorney, has filed a motion for rule on the clerk.

Appellant filed a notice of appeal and designation of record on October 17, 1997, following the entry on September 25, 1997 of terms and conditions of suspended imposition of sentence. Subsequently, on December 12, 1997, a judgment convicting appellant of burglary and theft of property was entered. Appellant did not timely file a notice of appeal after entry of the judgment on December 12, 1997.

Appellant’s previous motion for rule on the clerk was denied because appellant’s attorney faded to admit fault on his part. See Brazil v. State, 332 Ark. 74 (Feb. 26, 1998) (per curiam). Although a notice of appeal was filed on October 17, 1997, appellant’s attorney, Robert N. Jeffrey, now admits that a notice of appeal following the entry of the judgment was not filed in a timely manner due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion, which we will treat as a motion for belated appeal. See Terry v. State, 212 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion for belated appeal is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Nathan ELLIOTT v. STATE of Arkansas
    CR 98-373
    962 S.W.2d 815
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998

      Bruce J. Bennett, for appellant.
    No response.
   Per Curiam.

Appellant, Nathan Elliott, by his attorney, Bruce J. Bennett, has filed a motion for rule on the clerk. Mr. Bennett admits in the motion that the record was tendered late due to a mistake on his part. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Accordingly, the motion is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Id.


text:
    Ben Wesley HICKS v. STATE of Arkansas
    CR 98-353
    962 S.W.2d 813
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998

      Tamra Barrett, for appellant.
    No response.
   Per Curiam.

Appellant Ben Wesley Hicks, by his attorneys, Tapp Law Offices, by Tamra Barrett, has filed a motion for rule on the clerk. Appellant filed a timely notice of appeal from the denial of his petition for postconviction relief pursuant to Ark. R. Civ. P. 37. His attorney admits that the record of the postconviction proceedings was tendered late due to a mistake on her part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is therefore granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


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

text:
    Marquis Dewayne JONES v. STATE of Arkansas
    97-869
    967 S.W.2d 559
    Supreme Court of Arkansas
    Opinion delivered April 23, 1998

      Bill Luppen, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellant, Marquis Dewayne Jones, brings this interlocutory appeal pursuant to Ark. Code Ann. § 9-27-318(h) (Supp. 1997), challenging the Pulaski County Circuit Court’s order denying his motion to transfer a Class B felony terroristic act charge to the juvenile court. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 1-2(11) (1997) as the record in this appeal was lodged before September 1, 1997, the effective date of our appellate jurisdiction rule change. See In Re: Supreme Court Rule 1-2, 329 Ark. 656 (June 30, 1997) (per curiam). Finding that the trial court’s decision was not clearly erroneous, we affirm.

On February 12, 1997, Marquis Jones was charged by information with committing a terroristic act and fleeing in violation of Ark. Code Ann. §§ 5-13-310, 5-54-125 (Repl. 1997). Because Jones was sixteen years old at the time of the alleged crimes, he requested that the circuit court conduct a hearing to determine whether to retain jurisdiction or to transfer the case to juvenile court. See Ark. Code Ann. § 9-27-318(d). On April 25, 1997, the circuit court held an omnibus hearing in accordance with sections 9-27-318(e)-(f) and, after reviewing the evidence, ordered the misdemeanor fleeing charge to be transferred to juvenile court and retained jurisdiction over the felony fleeing charge. From this order comes the instant appeal.

Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, a court shall enter an order to that effect. Ark. Code Ann. § 9-27-318(f). In making that decision, the court must consider the following factors: (1) the seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense; (2) whether the offense is part of a repetitive pattern of adjudicated offenses that would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and (3) the prior history, character traits, mental maturity, and any other factor that reflects upon the juvenile’s prospects for rehabilitation. Ark. Code Ann. § 9-27-318(e). Although the court must consider all of these factors, it need not give them equal weight. Thompson v. State, 330 Ark. 746, 958 S.W.2d 1 (1997); Fleetwood v. State, 329 Ark. 327, 947 S.W.2d 387 (1997). Moreover, we will not reverse the court’s determination unless it is clearly erroneous. Id.

During the omnibus hearing, Detective Steve Moore, a homicide detective with the Little Rock Police Department, testified that on September 26, 1996, he investigated a shooting near 13th and Woodrow streets. Detective Moore reported that Dewayne Boone had related to the police that he was at 14th and Woodrow streets when a subject he knew as Jones pulled up to him on a bicycle. Jones allegedly said to Boone, “What’s up?” He then pointed a gun at Boone and fired the gun two or three times at Boone’s car. The gunfire damaged the passenger window, the passenger door, and a rear window. Boone provided the police with Jones’s name and address, and later positively identified Jones from a police photo-spread.

Dwayne Wilkins, Jones’s juvenile-court “intensive supervision” probation officer, also testified at the omnibus hearing. According to Wilkins, an “intensive supervision” officer is assigned to more serious offenders and oversees compliance with stricter probation rules. Wilkins added that such officers have smaller caseloads and surveillance officers on staff due to the intensity of the program. Jones was assigned to Wilkins on November 13, 1995 for probation relating to a minor in possession of a handgun charge. Wilkins also reported that Jones was previously on probation in 1992 for two Class C felony counts of theft by receiving.

According to Wilkins, Jones completed some rehabilitation programs during his probation, including a program at Recovery Way, a drug and alcohol rehabilitation center, and individual and family counseling through Stepping Stone. Following the Recovery Way program, Jones was required to participate in drug screens. After testing positive during a drug screen, Jones was ordered to complete the C Step Program, a ten-week boot camp at Camp Robinson. Jones failed to report to C Step. As a result, the juvenile court issued a pickup order; simultaneously, Jones was in the county jail on another charge. Ultimately he was returned to the juvenile court and sent to training school, the last stop on the juvenile-court rehabilitation-program line.

Although Wilkins testified that he believed Jones would still benefit from the juvenile-court system, he indicated that Jones had expressed an unwillingness to attend the C Step program. Additionally, Wilkins testified that Jones had a “couple” of curfew violations, and that Jones’s mother had reported probation violations when Jones had left home a “couple” of times without permission.

Jones also received a score of ten on a risk-assessment test, used to determine if a juvenile should be transferred to the Department of Youth Services. The assessment test is based on factors including: (1) the type of offenses committed; (2) the number of felonies in the last three years; (3) the number of misdemeanors in the past year; (4) the age of the juvenile at his first adjudication; (5) prior out-of-home placements; and (6) incident offenses (a) related to drug use, (b) involving weapons, (c) resulting in personal injury to a victim, and (d) involving gang or peer-group activity. Commitment to the Department of Youth Services is recommended for a score of ten points or higher. Notably, one risk point is assessed for juveniles less than thirteen years old at the time of their first offense; Jones was twelve years old when he first entered the juvenile-court system.

Tinajones, the appellant’s mother, was the final witness in the trial court proceeding. She indicated that, at the time of the trial, Jones had completed the eighth grade but was too old to return to school and too young to pursue a GED. Ms. Jones suggested that a Job Corps program out of this geographic area might benefit her son but that Jones had told her that he believed he could not complete the C Step program. She also explained that Jones was unable to attend the C Step program because he had broken his arm twice prior to two opportunities to attend C Step. We can dispense with Jones’s rehabilitation argument by referring to his age. See Rice v. State, 330 Ark 257, 954 S.W.2d 216 (1997). Jones’s birthday is May 17, 1980. As initial commitment to the Division of Youth Services cannot commerce after the eighteenth birthday of the youth under Ark. Code Ann. § 9-28-209(d) (Supp. 1995), Jones will be beyond the age when he can be rehabilitated in the juvenile system on May 17, 1998, when he turns eighteen.

We must note that some of the evidence considered by the trial judge may have constituted inadmissible hearsay. However, there was no objection to such evidence, and hearsay, admitted without objection, may constitute substantial evidence to support a ruling. Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996) (citing Clemmons v. State, 303 Ark. 265, 795 S.W.2d 927 (1990)).

In light of the three factors outlined in section 9-27-318(e), the trial court had clear and convincing evidence to support its denial of the appellant’s motion. First, the terroristic act charge involved firing a gun at an occupied vehicle, unquestionably an offense involving violence. Pursuant to section 5-13-310, the offense of committing a terroristic act results when a person, while not in the commission of a lawful act, shoots, or in any manner projects an object, with the purpose of causing injury to persons or property, at a conveyance that is being operated or that is occupied by passengers. The mere fact that gunfire causes only property damage when aimed at an occupied vehicle cannot negate the violent nature of the offense.

Second, Jones’s current charge appears to be part of a repetitive pattern of adjudicated offenses, increasing in seriousness. Moreover, he has received the extent of treatment offered by existing juvenile-court rehabilitation programs, including Recovery Way, Stepping Stone counseling, and training school. Regardless of the reason, Jones twice failed to attend the final court-ordered alternative, C Step boot camp. Jones having exhausted the juvenile-court programs, the circuit court could conclude that past efforts at his rehabilitation have not been successful and do not justify referring him back to juvenile court.

Third, Jones’s prior history, including a minor-in-possession-of-a-handgun and two felony theft charges, curfew violations, and a positive drug screen, demonstrates that Jones’s prospects for rehabilitation are remote. Reviewing the evidence presented to the trial court under the section 9-27-318(e) factors, we find that the circuit’s order was not clearly erroneous and that its decision to try Jones as an adult was based on clear and convincing evidence. Accordingly, we affirm.