author: Donald L. Corbin, Justice.

text:
    Rayford SWINDLE and Wilma Swindle, Husband and Wife v. LUMBERMENS MUTUAL CASUALTY COMPANY, John Wright d/b/a Wright Realty Company, Robert D. Holloway and Robert D. Holloway, Inc.
    93-533
    869 S.W.2d 681
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993
    [Rehearing denied January 24, 1994.]

      J.R. Nash, for appellants.

      Davidson Law Firm, by: Stephen L. Gershner, for appellee John Wright.

      Hankins, Hicks, Madden & Adcock, by: Stuart W. Hankins, for appellees.
   Donald L. Corbin, Justice.

Appellants, Rayford and Wilma Swindle, filed suit against separate appellees Lumbermens Mutual Insurance Company, John Wright d/b/a Wright Realty Company, Robert D. Holloway and Robert D. Holloway, Incorporated. Appellants asserted claims of misrepresentation, negligence, breach of contract, and breach of warranty of habitability assodated with their purchase of a house. They claimed appellees were jointly and severally liable for $55,000.00 in compensatory damages and $50,000.00 in punitive damages. The trial court determined John Wright was not the owner of Wright Realty Company and granted summary judgment dismissing with prejudice the claims against him. The remaining claims were tried to a jury which found against appellants. Appellants assert four points of error in the proceedings below. We find no merit and affirm.

A review of the facts is necessary to an understanding of the arguments raised on appeal. The house in question is located in the Random Oaks Subdivision of Maumelle, Arkansas. Edgar and Pauletta Smith owned the house when Mr. Smith’s employer, Lumbermens, transferred him to New Orleans. Through its relocation administrator in Illinois, Gloria Traudt, Lumbermens helped coordinate the sale of the Smiths’ house in Maumelle. In accordance with Lumbermens custom, Traudt sought two appraisals of the Smiths’ house and guaranteed payment of the average of the two appraisals, $65,500.00, to the Smiths upon sale of the house.

The house had been vacant for four years when appellants purchased it on September 1, 1988, for $55,000.00. Evidence revealed that during those four years there were substantial repairs made to the house and foundation totaling over $14,000.00. While Judy Cameron, a salesperson then employed by Wright Realty, was showing the house to appellants, Mr. Swindle inquired about a crack in the garage floor. Cameron informed appellants the foundation in the garage had been repaired. At appellants’ request, Lumbermens had an engineer inspect the house. The engineer, separate appellee Robert D. Holloway, reported the house to be structurally sound. As part of the sale to appellants, Lumbermens put $2,500.00 in escrow for any costs appellants incurred to repair the foundation in the next year.

Before the year expired, appellants began to notice several problems with the house. Mrs. Swindle described the problems she noticed: a crack over the garage door was getting bigger; the kitchen ceiling was dropping; previous repairs to the living room showed new damage; a crack in the living room wall ran from top to bottom; doors in the back bathroom were cracked; all outside doors would not lock. Appellants contacted the escrow agent about collecting the $2,500.00 and eventually filed this suit.

For their first assignment of error, appellants challenge the admission into evidence of Lumbermens’ Exhibits Six, Seven, and Nine. These exhibits are appraisals of the house in question and were admitted over appellants’ objections of unfair surprise resulting in an unfair trial. The exhibits were not disclosed to appellants during discovery, although appellants submitted interrogatories that should have resulted in their disclosure. Lumbermens’ counsel explained that the exhibits were not disclosed earlier because he did not know they existed until Traudt brought them with her from Illinois the day before trial.

Exhibit Six appraises the house in question at $67,500.00 as of April 30, 1984. Exhibit Seven values the house at $63,500.00 as of May 3, 1984. These were the two appraisals Traudt used to determine the amount Lumbermens would guarantee Smith. Exhibit Nine values the house at $56,000.00 on November 8, 1986. Traudt stated she sought this appraisal to verify the accuracy of the list price after two years.

Lumbermens contended the exhibits were evidence of the house’s value and its good state of repair, and were therefore admissible to show Traudt had no fraudulent intent. The trial court admitted the exhibits on that basis, over appellants’ objection of surprise, stating he could not see any way appellants would be prejudiced by their admission even if there was surprise. The trial court explained the documents were quite favorable to appellants in that they emphasized that Lumbermens had an interest in the case since it had guaranteed payment of $65,500.00 to Smith.

On appeal, appellants claim they were prejudiced in several ways. The thrust of their argument is on what they call a “bomb” in Exhibit Six. After trial, appellants discovered that the appraisal admitted as Exhibit Six indicated the house had a slab foundation which “appears to have a spring.” Appellants contend they would not have purchased the house if they knew it was built on a spring. Appellants argue they were prejudiced by not examining Traudt about this comment and her knowledge of it since it had been in her files since 1984. Appellants also claim they were prejudiced because the jury could have charged them with knowledge of the documents; thus, the jury might have been misled to believe the existence of the spring was disclosed to appellants. However, most significantly, appellants argue that if Lumbermens had simply complied with their discovery requests and disclosed this appraisal, they could have investigated the existence of the spring by talking with the appraiser or with other experts.

We need not consider the merits of appellants’ argument because it is not preserved for our review. It has long been the rule in civil cases that both an objection and a request for a continuance are prerequisites to appellate review of a claim of surprise. See e.g., Massengale v. Johnson, 269 Ark. 269, 599 S.W.2d 743 (1980); Arkansas Power & Light Co. v. Jennings, 258 Ark. 908, 529 S.W.2d 866 (1975); National Cash Register Co. v. Holt, 193 Ark. 617, 101 S.W.2d 441 (1937).

The discussion regarding the admissibility of Exhibits Six, Seven, and Nine occurred outside the jury’s presence during a fifteen-minute recess. The trial court called die recess after observing that the jury was in need of a break. Although appellants did object on the grounds of surprise, they did not move for a continuance. The failure to move for a continuance in which to further examine the exhibits indicates appellants’ surprise was not so great that they felt unable to controvert the evidence presented by Lumbermens.

Appellants’ second assignment of error is in the trial court’s exclusion of a document entitled “Release Of All Demands” that Lumbermens requested appellants to sign in exchange for the release of the $2,500.00 in escrow. Appellants claim the release was not barred by A.R.E. Rule 408 and was admissible as evidence that Lumbermens breached its contract to pay the $2,500.00 for foundation repairs.

Lumbermens had deposited the $2,500.00 at the time of closing and the money remained in escrow for one year. Although Mrs. Swindle contacted the escrow agent during the year following the closing, the record does not reveal that appellants ever complied with the terms of the escrow agreement by presenting the escrow agent with any proof of costs they incurred to repair damage to the foundation within the one-year period. The release was dated in 1990, after the one-year period for making claims on the escrowed $2,500.00 had expired. Thus, Lumbermens was no longer obligated under the escrow agreement when it tendered the release to appellants. Moreover, the document specifically states the payment of the $2,500.00 would be in consideration of appellants’ release of “all claims, demands and causes of action that Releasors [appellants] ever had.” Clearly, the document was an offer to settle all claims against Lumbermens and therefore should not have been admitted pursuant to A.R.E. Rule 408.

The trial court ruled the document was an offer of compromise and denied its admission on that basis. We do not find an abuse of discretion in that ruling.

For their third argument on appeal, appellants contend the trial court erred in granting summary judgment to John Wright because there was a factual issue in dispute, namely whether Wright was the owner of Wright Realty. John Wright moved for summary judgment and for dismissal for failure to plead facts. Wright attached to the motion an affidavit declaring he was not the owner of Wright Realty, the company which listed and sold the house to appellants, rather Wright Realty was operated as a division of John Wright Construction Company.

To support their burden of showing the fact of Wright’s ownership was in dispute, appellants point to Mrs. Swindle’s affidavit declaring that Wright Realty’s agents had represented to her that Wright was the owner. ARCP Rule 56(e) requires that “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” This court has stated that affidavits which are conclusory rather than factual are insufficient. See McDonald v. Eubanks, 292 Ark. 533, 731 S.W.2d 769 (1987). Mrs. Swindle’s affidavit merely declares that she was told Wright was the owner of the real estate company by its agents. Her affidavit does nothing more than assert a conclusion that is based on hearsay. Nothing in the affidavit indicates Mrs. Swindle had personal knowledge that Wright was the owner of Wright Realty. Mrs. Swindle’s affidavit does not meet the requirements of Rule 56(e), and therefore does not create a dispute as to the fact of ownership of Wright Realty.

Appellants also point to a document Wright offered in response to discovery requests during the summary judgment proceedings. The document is an “Agreement between John Wright and Richard Greenlee on sale of fixtures in Wright Realty and closing of John Wright Construction Company’s interest in Wright Realty.” Appellants claim this document is evidence that Wright, not the construction company, was the seller of the real estate company. That is simply not the case. While the document does mention Wright individually in some places, it never indicates he is the owner of Wright Realty. At most, the document reveals that Wright was acting on behalf of the construction company.

Appellants have failed to meet their burden of demonstrating that a material question of fact exists. The trial court did not err in granting Wright’s motion for summary judgment.

As their fourth assignment of error, appellants contend the trial court erred in denying its motion for new trial which was made on six grounds. The first three of the six grounds relate to Exhibit Six. Appellants claim they should have been granted a new trial because of an error of law in admitting Exhibit Six and because the information contained within Exhibit Six (the existence of a spring under the house) was surprise and newly discovered evidence. As for the error of law, we have previously stated that appellants did not request a continuance from the trial court. It was appellants’ burden to do so, and we cannot say the trial court erred in the absence of such a request. As for the surprise and newly discovered evidence, the trial court observed that if in fact there was a spring under the house, such a fact could have been discovered by appellants on their own. As the numerous repairs made to the house were disclosed to appellants during discovery, we agree that reasonable diligence in investigating the cause of the numerous repairs could have resulted in knowledge of whether there was water under the house and therefore could have prevented any surprise caused by Exhibit Six. Accordingly, we cannot say the trial court abused its discretion in this regard. See ARCP Rule 59(a)(3), (7).

Appellants moved for a new trial on the grounds of error in law relating to the exclusion of the release and offer to compromise. We have previously concluded the trial court did not abuse its discretion in concluding the document was an offer to compromise. It follows that there was no error of law in excluding the offer to compromise, as such offers must be excluded pursuant to A.R.E. Rule 408.

Appellants argue they are entitled to a new trial because of an error in the amount of the recovery. They claim there was evidence to support a claim for the $2,500.00 in escrow, and since the jury did not award them at least the $2,500.00, there must have been error in assessment of the amount of the recovery. True, Mrs. Swindle testified that she contacted the escrow agent concerning collection under the escrow agreement. She also testified that the house was in need of repairs during the one-year period. However, there was never any evidence that appellants made any repairs to the foundation or that they informed the escrow agent of any costs they incurred for repairs to the foundation as required by the terms of the escrow agreement. The escrow agreement clearly states the money was placed in escrow for any costs incurred in repairing the foundation. There was no error in the denial of a new trial on this point.

The final argument asserted as grounds for a new trial concerns the dismissal by summary judgment of John Wright. Although this point has previously been addressed, appellants make an additional argument here concerning Cameron’s deposition, which was taken after the summary judgment and was admitted at trial. In her deposition, Cameron stated that Wright was the owner of Wright Realty. Appellants contend, although this deposition was not before the trial court at the time of the summary judgment proceedings, the trial court could have considered it at the motion for new trial.

Appellants claim they are entitled to a new trial of the summary judgment issue pursuant to ARCP Rule 59(a)(1), based on an irregularity in the proceedings. We do not see that any irregularity occurred. Appellants have not asserted any reason why Cameron’s deposition was not taken prior to the summary judgment hearing. The record indicates almost two months passed from the filing of Wright’s motion to the summary judgment hearing. During that two months, appellants sent interrogatories to Lumbermens. In the absence of any explanation as to why appellants did not take Cameron’s deposition during that time, we have no choice but to conclude there was no irregularity.

The judgment is affirmed.

Holt, C.J., not participating.

      HoIt, C.J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    William TEAGUE v. WALNUT RIDGE SCHOOLS, and Seb Spades, Jim Jansen, Theodore Andrews, J.R. Cox and Nathan Crafton, in Their Capacities as Members of the Board of Directors of the Walnut Ridge Schools
    92-1316
    868 S.W.2d 56
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993
    [Rehearing denied January 24, 1994.]

      Riff el, King & Smith, for appellant.

      Laser, Sharp, Mayes, Wilson, Bujford & Watts, P.A., by: Dan F. Bufford and Brian Allen Brown, for appellees.

      Glaze, J., not participating.

   Donald L. Corbin, Justice.

Appellant, William Teague, appeals a judgment of the Lawrence Chancery Court dismissing his complaint for declaratory judgment and denying his request for an injunction to be reinstated to his prior position with appellee, Walnut Ridge Schools. For reversal, appellant contends the trial court erred in holding that he resigned from his contract with appellee. Resolution of the issue presented requires our interpretation of Ark. Code Ann. § 6-17-1506 (1987); the court of appeals certified the case to us on that basis. We find no merit to appellant’s argument and affirm.

The sole issue presented for our review is whether appellant’s resignation was effective before it was formally accepted by the school board. We hold, on the facts presented, that appellant’s resignation was effective prior to official acceptance by the school board.

The facts of the case are not in dispute. Appellant was employed by appellee as director of bands for the 1991-92 school year. Pursuant to the Teacher Fair Dismissal Act of 1983, Ark. Code Ann. §§ 6-17-1501 to -1510 (1987 & Supp. 1993), appellee offered appellant a renewal contract for the 1992-93 school year.

On May 26, 1992, during the term of his 1991-92 contract, appellant hand delivered to the principal a letter stating that he intended to complete his current contract but would resign his position as director of bands effective July 26, 1992. The letter of resignation was enclosed in an envelope addressed to the principal, superintendent and board of education. On May 27, 1992, the superintendent notified the school board members by memorandum that the band director had resigned effective at the end of the school year and that the superintendent would do his best to have a replacement recommendation ready for the June 15 school board meeting.

On June 3, 1992, appellant hand delivered to the superintendent a letter withdrawing his May 26th resignation. The superintendent informed appellant that he was in the process of interviewing persons for appellant’s position. On June 9, 1992, appellant hand delivered to the superintendent a letter requesting that the withdrawal of his May 26th resignation be placed on the agenda for the June 15 board meeting.

The minutes of the Walnut Ridge School Board reflect the following events occurred on June 15, 1992. The board met in regular session. Appellant asked the board to rescind his resignation for the 1992-93 school year. The board went into executive session to discuss appellant’s resignation. Upon returning from executive session, the board unanimously voted to accept the superintendent’s recommendation to accept appellant’s resignation.

The June 15, 1992 minutes do not reflect any discussion or recommendation of a replacement band director. However, the Walnut Ridge School Board met in special session on June 24, 1992. The only business conducted at that meeting was the acceptance of the superintendent’s recommendation to employ Mike Packard as band director for the 1992-93 school year.

Although appellant was offered a renewal contract on March 1, 1992, there is not any evidence that the renewal contract was executed. Appellant was never notified that his 1991-92 contract would not be renewed as required by the Teacher Fair Dismissal Act. However, appellant was present at the June 15, 1992, school board meeting at which his resignation was accepted. He therefore had actual notice that his contract would not be renewed for the 1992-93 school year due to his resignation.

On appeal, appellant contends that his May 26 letter was an offer to resign which required official action by the school board and that the offer to resign was capable of being revoked until the school board either acted upon it or detrimentally relied upon it. Because he revoked his offer to resign on June 3, which was prior to the board’s June 15 acceptance of his resignation and June 24 acceptance of the recommendation to hire a replacement, appellant argues his offer was void. Appellee responds that there is no requirement, pursuant to either the Teacher Fair Dismissal Act or Walnut Ridge School District policy, that the board formally act upon or accept a teacher’s resignation. Appellee explains the only reason it formally accepted appellant’s resignation was to provide notice to other districts interested in hiring appellant that they could do so without being liable to appellee for appellant’s salary pursuant to Ark. Code Ann. § 6-17-304 (1987).

We begin our analysis by observing that appellant’s contract was with appellee, the school board, not with the principal nor the superintendent. The term of that contract was from July 25, 1991, until June 4, 1992, and was subject to automatic renewal pursuant to section 16-17-1506. That statute controls automatic renewals of teacher contracts and provides as follows:

6-17-1506. Automatic contract renewal - Notice of nonrenewal.
(a) Every contract of employment made between a teacher and' the board of directors of a school district shall be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the next school year succeeding the date of termination fixed therein, which renewal may be made by an endorsement on the existing contract instrument, unless by May 1 of the contract year, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed or, unless during the period of the contract or within ten (10) days after the end of the school year, the teacher shall deliver or mail by registered mail to the board of directors his or her resignation as a teacher, or unless such contract is superseded by another contract between the parties.
(b) Termination, nonrenewal, or suspension shall be only upon the recommendation of the superintendent. A notice of nonrenewal shall be mailed by registered or certified mail to the teacher at the teacher’s residence address as reflected in the teacher’s personnel file. The notice of recommended nonrenewal of a teacher shall include a simple but complete statement of the reasons for such recommendation. [Emphasis added.]

According to section 6-17-1506, appellant’s contract for the 1991-92 school year was to be renewed “unless during the period of the contract or within ten (10) days after the end of the school year” appellant “delivered]... to the board of directors his . . . resignation!.]” We agree that section 6-17-1506 does not require the board to take any official action in response to a teacher’s resignation. Had the legislature intended to require a school board to officially accept a teacher’s resignation, it could have so provided. It did not. Thus, the issue before us is controlled by the foregoing statutory language, and we must decide, upon the facts presented in this case, whether appellant delivered his resignation to the school board in compliance with section 6-17-1506.

The evidence is undisputed that during the period of the 1991- 92 contract, appellant delivered his resignation to the principal, that the principal delivered it to the superintendent, and that the superintendent communicated the resignation to the members of the school board the next day. The superintendent testified, and his memorandum to the school board reflected, that he immediately began a search for a new band director. He stated that band directors were hard to find for small schools. Appellant testified that he delivered his resignation to the principal knowing it would make its way to the superintendent and to the school board. It is also undisputed that the superintendent’s memorandum to the school board members was written on May 27, 1992, seven days prior to appellant’s attempt to revoke his resignation on June 3, 1992.

When previously construing the Teacher Fair Dismissal Act, this court has stated that substantial compliance with the Act is all that is required. Murray v. Altheimer-Sherrill Pub. Schools, 294 Ark. 403, 743 S.W.2d 789 (1988). The substantial compliance rule is for the benefit of both the school district as well as the teachers. We hold, based upon the foregoing facts of this case, that appellant substantially complied with section 6-17-1506 by delivering his resignation, which was addressed to the school board, to the principal. Appellant delivered his resignation to the board via the principal during the term of the 1991-92 contract. Thus, pursuant to the terms of section 6-17-1506, the 1991-92 contract was not renewed for the 1992- 93 school year. We emphasize that our holding is based in part on the facts that appellant delivered his resignation to the principal with full intent that it make its way to the school board and that knowledge of the resignation made its way to the school board prior to appellant’s attempt to revoke his resignation.

We are well aware of the existence of both statutory authority and case law in support of the proposition that the sole power to execute and to terminate a teacher’s contract is vested in a school district’s board of education. Ark. Code Ann. § 6-13-620 (1987); McElroy v. Jasper School Dist., 273 Ark. 143, 617 S.W.2d 356 (1981). Obviously, the legislature was mindful of that rule when it passed section 6-17-1506, as that statute provides for the resignation to be delivered to the school board. Again, we emphasize that if the legislature intended to require the board’s acceptance of a teacher’s resignation, it could have done so.

We are also aware of cases from other jurisdictions holding that a teacher, having tendered a written resignation to his principal or superintendent, may regard it as ineffective and withdraw it until it is accepted by the school board with which it contracts. See e.g., Allen v. Lankford, 317 S.E.2d 645 (Ga. Ct. App. 1984) (and cases cited therein from Alabama, Colorado, Florida, Louisiana, Ohio, and West Virginia). We are not persuaded to follow the holdings and reasonings of those cases as they did not involve facts or statutes similar to the present case.

For the reasons stated, we affirm the judgment.

Glaze, J., not participating.


author: Robert L. Brown, Justice.

text:
    Bill STAIR v. Freda Cruise PHILLIPS
    93-289
    867 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993

      A. Wayne Davis and Jeff Dobbins, for appellant.

      Carla Crouch, for appellee.
   Robert L. Brown, Justice.

The appellant, Bill Stair, appeals from a denial of his motion to intervene in certain proceedings concerning the two natural children of his former wife, Noemi Stair, and the denial of his petition to review. Stair was not the natural father of the children; nor had he adopted them. He raises three points on appeal, but they really boil down to one point — whether the juvenile judge correctly denied his participation in the proceedings dealing with Noemi Stair’s children in which he claimed an interest. We believe that the judge was right in finding that Bill and Noemi Stair were divorced and that this rendered moot any interest that Bill Stair asserted in the matter affecting her children.

Bill and Noemi Stair were married in June of 1988 and began living in a house owned by Bill Stair in Mountain View. Noemi Stair had two children from a previous marriage when she married Bill Stair — Jason Sandefer, who at this writing is age 15, and Steven Sandefer, who is age 12. Steven is mentally retarded to some degree, although the extent of the retardation is not known to this court. Early in 1990, Noemi Stair came to the State Department of Human Services with photographs and other documentation evidencing physical abuse which she claimed Bill Stair had inflicted upon her. A restraining order was issued against Bill Stair, but he subsequently returned home.

On February 5,1990, Noemi Stair reported that Bill Stair had physically abused her children. Bill Stair agreed to leave the home, but shortly thereafter he apparently returned. Another complaint was filed with DHS on March 23,1990. This time, Bill Stair admitted that he may have been the reason for the bruising found on Steven. On April 23, 1990, a complaint was filed by DHS reporting that Noemi Stair had left the children unsupervised. Two additional complaints were filed by DHS, alleging that she had also left the children alone on April 30, 1990, and May 4, 1990.

In May of 1990, Steven was sent to The Bridgeway Psychiatric Hospital in North Little Rock where he was diagnosed as having epilepsy. While he was being treated at The Bridgeway, Steven told hospital personnel that his stepfather had sexually molested him. Steven was examined, but there was no physical evidence to substantiate the allegations. Bill Stair denied the allegations, and no criminal charges have been filed.

In July of 1990, Noemi Stair filed for divorce and moved from Bill Stair’s home to Dove House in Clinton, a shelter for homeless and battered women and children. She had apparently moved back in with Bill Stair by January of 1991. Shortly after she returned, appellee Freda Phillips, a social worker with DHS visited the house several times.

On April 12, 1991, DHS filed a petition for court-ordered protective services for the two children and an alternative petition for custody. Noemi Stair filed a response to the petition for custody, admitting that there had been problems in the past but contending that since she had returned to Bill Stair’s home in January of 1991 j there had been no evidence of further abuse by him.

A hearing on the DHS petitions for protective services and custody was held on June 21 and 22, 1991. By that time, Bill and Noemi Stair were no longer living together. On the first day of the hearing, prior to the judge’s receiving testimony, Bill Stair made an oral motion to intervene and contended that he had been accused of things that could subject him to criminal prosecution, and as a result he needed to protect his rights. Noemi Stair objected to this intervention. The juvenile judge ruled that the proceedings would not affect the appellant, and he denied the motion. At the conclusion of the hearing, the judge determined that the family was in need of DHS protective services and ordered that the children could not be in the same household as Bill Stair.

A review hearing was conducted on December 2, 1991, but neither Bill nor Noemi Stair was present. The DHS caseworker at the hearing advised the court that Bill Stair was pursuing a claim against DHS on the basis that it had broken up his family. The caseworker added that he had been communicating with Noemi Stair. The judge approved continued protective services for the family.

On February 13, 1992, Bill Stair filed a formal motion to intervene. That same date, he also filed a petition for review in which he contended that prior hearings had been conducted without his presence and that as the stepfather of Noemi Stair’s children, he had a right to notice of these hearings. DHS responded that as an estranged stepparent, Bill Stair had no standing in this matter.

On April 23, 1992, the juvenile judge heard Bill Stair’s motion for intervention. By this time, Noemi Stair had filed for divorce which Bill Stair was contesting. At the conclusion of the hearing, the judge did not rule but stated that he wanted written briefs on the issues raised. Bill Stair later filed an amended motion for intervention contending that he was a necessary party under Ark. R. Civ. P. 19.

On October 26, 1992, the judge wrote a letter opinion to the parties stating that Bill and Noemi Stair were now divorced and that he was denying Bill Stair’s petition for review and his motion to intervene. He concluded that Bill Stair had no standing in this matter because he was not a parent to these children and was now divorced from their natural mother, and that in light of these circumstances the case was moot.

Stair’s appeal emanates from the judge’s order which was subsequently entered. He first asserts that the juvenile judge erred in denying his motion to intervene because he had a liberty interest in his marriage and family which is protected by the Due Process Clauses of both the state and federal constitutions. He argues that he and Noemi were living together when DHS first filed its petitions in 1991 and that the actions of DHS and the resulting court ruling preventing his association with her children caused his marriage to dissolve. In short, he maintains that he was entitled to intervene in the DHS proceedings under Ark. R. Civ. P. 24. Though his written motion to intervene was filed on February 3, 1992 — approximately eight months after the June 21,1991 hearing — he claims that it was nevertheless timely because it related back to the oral motion made at the earlier hearing.

Finally, he urges that though he and Noemi are divorced, the matter is not moot because they could reconcile at any time which would put this matter before the court again. Alternatively, he contends that even if the matter is moot, this court should address the public policy aspects because procedural due process rights are involved.

Stair’s arguments are not persuasive. We first note that the original theory he advanced for intervention at the June 21, 1991 hearing was that he was being accused of criminal conduct and should have the right to defend himself. Eight months later when he filed his formal motion to intervene and his brief, he did not appreciably change his grounds for intervention. At that time, he also asserted in his brief supporting the motion that numerous allegations of physical abuse and sexual abuse had been made against him and that he had been denied notice and the right to be heard and the right to present evidence. There was no assertion that his liberty rights in his marriage had been adversely affected.

• It was not until the hearing on his motion to intervene held on April 23, 1992, that he broached the argument that his liberty interest in his marriage had been jeopardized. At that time, the judge was advised that the Stairs were estranged and that a divorce action had been filed by Noemi Stair. The judge then observed that he had not ordered the Stairs to separate but only that the children live apart from their stepfather.

Lateness in raising the argument of marital impingement does not decide this matter, however. We agree with the juvenile judge that following the divorce which occurred before the judge’s letter opinion of October 26, 1992, the matter was moot. In that opinion, the judge wrote:

Bill Stair was not a parent and at the time of the hearing the couple was separated. That separation continued until the parties were divorced so I do not find merit in the argument that the Department of Human Services forced this couple to separate. Therefore, Mr. Stair was not, and should not be, a party to this suit. Had the parties reconciled and this Court been placed in the position of entering orders that would have forced Mr. Stair to comply with some Court ordered requirement then he most likely should have been made a party. But, under the circumstances presented, Mr. Stair was not a necessary party nor do I feel he had a constitutional right to be a party.
Mr. Stair was under no obligation from this Court to abandon his home. That was an action he took of his own free will and it would seem after consultation with his attorney his liberty and freedom were not affected by this Court’s action.
Lastly, since the parties are now divorced and their property issues adjudicated, this case, as it relates to Mr. Stair, is a moot issue and I see no compelling reason to hold lengthy hearings that will lead this Court to no new conclusions.

The juvenile judge was entirely correct.

This court has stated that a case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Arkansas Intercollegiate Conference v. Parnham, 309 Ark. 170, 828 S.W.2d 828 (1992). We may elect, however, to address a moot issue where it raises considerations of public interest or will prevent future litigation. Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990). Such is not the case here. Bill Stair’s attempt to intervene is not of public interest because as a former stepparent he has no legal rights in the children. Furthermore, his suggestion that addressing these issues may prevent future litigation because he and Noemi Stair may reconcile sometime in the future is speculative and simply not supported by any evidence of record. This court does not give advisory opinions, and we refrain from doing so in this case. See Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986).

We further note that even without the divorce Bill Stair’s claim of having an interest in Noemi Stair’s children by virtue of his stepfather status is questionable. When a stepfather seeks to adopt his stepchildren or to obtain legal custody of them, his rights have been acknowledged. See Bevis v. Bevis, 254 S.C. 345, 175 S.E.2d 398 (1970); Root v. Allen, 151 Colo. 311, 377 P.2d 117 (1962). Here, however, neither of those circumstances pertains. Stair was not an adoptive parent or a legal custodian of the children. Noemi Stair was the parent with legal custody. Moreover, Stair presents nothing to support a claim that he was standing in loco parentis to the children or acting as their custodian under Ark. Code Ann. § 9-27-303(9) (1987). We are aware of no authority where the mere status of stepfather entitles that person to notice and participation in the question of protective services or custody. Something more must be shown to qualify as standing in loco parentis. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991). In this case, just the opposite appears evident. There were multiple separations, and the record reflects that throughout these proceedings Stair has shown more interest in clearing his name than in the children.

. Stair’s additional argument that he claimed an interest as a necessary party to the DHS proceedings under Ark. R. Civ. R 19(a) also fails for mootness. In addition, the juvenile judge was on sound footing in dismissing the petition for review of the physical and sexual abuse allegations made against him. The matter before the judge was whether the children needed protective services because Noemi Stair was not caring for them, not whether Bill Stair had in fact abused Steven.

There was no error in the juvenile judge’s decision.

Affirmed.


text:
    Danny E. VERDICT v. STATE of Arkansas
    CR 93-603
    868 S.W.2d 443
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993
    [Rehearing denied January 18, 1994.]

      Val P. Price and John Barttelt, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Danny E. Verdict was convicted of murdering his ex-wife, Marcella Kelly, and sentenced to life in prison. He appeals his conviction and sentence and presents four issues for our review. He asserts that one of his two attorneys was prevented from being present during all of voir dire and that this denied him a fair trial; that a statement made on his trip back from California after his arrest was in violation of his Miranda rights; that the circuit court erred in allowing his daughter to testify against him; and that an expert witness’s testimony regarding forensic odontology was irrelevant and not credible and, thus, should have been disallowed. None of the issues has merit, and we affirm the sentence.

On February 2, 1992, Marcella Kelly was found dead in her residence in north Jonesboro with six or seven bullet wounds in her body. She had been shot from behind. She also had what appeared to be a bite wound on her left thumb. Numerous 9MM shell casings were found on the kitchen floor. Her roommate, Ann Chamberlin, discovered the body at about 3:45 a.m. and reported to Jonesboro police officers that she last saw Kelly on Saturday afternoon, February 1, 1992. She said that Kelly told her that her ex-husband, Verdict, was planning to drop by to bring a stereo. A stereo was found by the police officers in her living room chair. Four neighbors reported seeing Verdict’s car on Saturday afternoon parked in Kelly’s driveway. Police officers went to the home that Verdict shared with his aunt, Betty Reeves, that same Sunday, and she reported that Verdict and much of his clothing were gone. She also stated that Verdict owned a 9MM Ruger semi-automatic pistol.

Verdict later testified at trial that he drove to California to see his daughter, Kimberly Myers, one last time before he committed suicide. He told his daughter that he had shot Kelly, and she urged him to turn himself in to the authorities which he did. Two officers then came to California to transport him back to Arkansas — Officer James Tate of the Jonesboro Police Department and Deputy Sheriff Spencer Moore of the Craighead County Sheriff’s Department. The officers read Verdict his Miranda rights in California, and he refused to give a statement.

On the drive back to Arkansas, according to Officer Tate, Verdict did make an incriminating statement. The men were at a gasoline station in Sulphur Springs, Texas, and Deputy Sheriff Moore had left the car. Verdict said that he dreaded the upcoming trial, and Tate responded that the best thing to do was to tell the truth. Verdict replied: “I just didn’t know what I was doing.”

Verdict was charged with capital murder and later charged with a separate count as a habitual offender with three prior offenses. The circuit court found him to be indigent and appointed two attorneys, Val Price and John Barttelt, to represent him. The State had dental impressions taken from Verdict to match against the bite wound on the victim’s left thumb and sent the impressions and the severed thumb to a forensic odontologist in Mississippi, Dr. Michael West, for examination.

A few days before trial, the circuit court heard pretrial motions, including Verdict’s motion in limine to exclude the testimony of Dr. West concerning the bite mark on Kelly’s thumb. The court noted that in Arkansas scientific evidence is yadmissible if it is relevant and concluded that this evidence was relevant.

At the same hearing, Val Price stated that he objected to the trial setting on November 9, 1992, because he had an oral argument in front of the Arkansas Supreme Court on that morning and would miss voir dire. The court concluded that co-counsel, John Barttelt, could select the jury.

■ The trial in this matter followed. After voir dire, the circuit court conducted a Denno hearing and considered Verdict’s motion to suppress his statement made on the trip from California to Arkansas on the basis that it was not knowingly made after a waiver of Miranda rights. The motion was denied. Verdict’s daughter, Kimberly Myers, who was subpoenaed from California, testified that her father had confessed to her that he shot Kelly. The video deposition of Dr. Michael West was played to the jury. West testified that the bite on Kelly’s thumb matched the pattern of Verdict’s teeth and that without a doubt he was the biter.

Verdict then testified and admitted shooting Kelly but said that he lost control of himself. He denied biting her thumb. The jury convicted him of first degree murder, and he was sentenced to life imprisonment.

I. CONTINUANCE

Verdict’s first assertion of error is that the circuit court erred when it refused to grant him a one-day continuance when one of his two attorneys, Val Price, had an oral argument before this court and could not be present as the trial began.

The burden is on the movant to show good cause for a continuance. Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993); see also Ark. R. Civ. P. 27.3. Such a motion is addressed to the discretion of the trial judge and will not be reversed absent an abuse of discretion. Oliver v. State, supra; Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991). The burden of proving an abuse of discretion due to resulting prejudice in denying a continuance is upon the appellant. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991); David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). This court has repeatedly stated that prejudice is not presumed in this context, but, instead, an appellant must demonstrate prejudice before we will consider a trial court’s denial of a continuance to be an abuse of discretion. See, e.g., King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993); Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993). A mere assertion of error is not sufficient to warrant reversal. Kilgore v. State, supra.

We give Verdict’s argument in this regard little credence because he was represented by his other appointed counsel, John Barttelt, as the trial began and for part of voir dire, and there is no indication that he was prejudiced in any form or fashion by Barttelt’s solo representation. There is no claim that Barttelt was incompetent or incapable of conducting voir dire or that any juror was improperly seated or improperly struck during the period of Val Price’s absence. Price returned before the noon recess and participated in the balance of voir dire. The absence of prejudice is fatal to Verdict’s claim of error. Lynch v. State, 188 Ark. 831, 67 S.W.2d 1011 (1934). The circuit court correctly denied the continuance motion.

II. SUPPRESSION OF STATEMENT

Verdict next contends that the circuit court erred by not suppressing his statement to Officer James Tate of the Jonesboro Police Department during their trip from California to Arkansas.

At the Denno hearing, Officer Tate testified that he read Verdict his Miranda rights after arriving in California, and Verdict said that he did not want to give a statement. Two days later while they were stopped for gas in Sulphur Springs, Texas, the police officer related that Verdict said to him that he dreaded the upcoming trial. Tate stated that he answered that the best thing to do was to tell the truth. Verdict replied: “I just didn’t know what I was doing.” Tate did not advise Verdict of his rights a second time before this statement.

We initially observe that we can see no basis for a conclusion that by advising Verdict to tell the truth at trial, Officer Tate was “interrogating” him. The United States Supreme Court has stated that an “interrogation” extends only to words or actions on the part of police officers which they should have known were reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291 (1980). Such was not the case here.

The critical question before us, though, is whether Verdict knowingly and intelligently waived his right to silence which he had earlier invoked. We have recently held that to determine whether a waiver was knowingly and intelligently made, the court must look to the totality of the circumstances. Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993). This inquiry includes an evaluation of the appellant’s age, education, experience, and ability to understand his rights. Id. Applying this set of factors to the case at hand, we observe no error. The appellant was 42 years old, there was no evidence that he had below average intelligence, and he was no stranger to the legal system as evidenced by his prior convictions contained. Also, while not an essential factor, the clear indication is that Verdict initiated the exchange by voicing his misgivings about the trial. Taken together, the circumstances support the court’s ruling of admissibility.

III. DAUGHTER’S TESTIMONY

For his next point, Verdict argues that the testimony of his daughter, Kimberly Myers, should have been suppressed because it was obtained in violation of the Uniform Act to Secure the Attendance of Witnesses, codified as Ark. Code Ann. § 16-43-403 (1987). Specifically, Verdict claims that the Arkansas judge’s certificate was sent to California and that Myers was arrested there and placed in jail for three days before she was transported back to this state. Verdict maintains this jailing in California evidences non-compliance with § 16-43-403 and was clearly prejudicial to him as this was the only way the State could get his daughter to testify against him.

The fallacy in Verdict’s argument is that the State of Arkansas appears to have done everything according to Hoyle, and no evidence was offered to counter this. All that was presented to the circuit court was a verbal assertion by defense counsel that Ms. Myers was jailed in California. No proof of this was presented, and without proof, we have nothing to assess and consider. Moreover, we are mindful that § 16-43-403 does contemplate that the material witness be taken into custody in the foreign state. There is the further point that Verdict has no standing to raise an issue pertaining to a violation of Kimberly Myers’s rights on her behalf. Price v. State, 313 Ark. 96, 852 S.W.2d 107 (1993). The circuit court did not err on this point.

IV EXPERT TESTIMONY

Verdict’s last asserted error is that the circuit court was in error in admitting the video deposition of Dr. Michael West for several reasons: the bite mark evidence was not reliable scientific evidence, any relevancy of this evidence was outweighed by its prejudicial effect under Ark. R. Evid. 401 and 402, and West’s credibility had been called into question in Mississippi.

The first issue is easily dispensed with. We do not view human bite mark identification as novel scientific evidence under Prater v. State, 307 Ark. 180, 823 S.W.2d 429 (1991). We said as much in Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992), when we noted that such evidence on human bite marks is widely accepted by the courts. We further underscored in Davasher v. State, that bite testimony (in that case, a dog bite) was more readily understandable by the jury than DNA testimony, for example. In addition, the circuit court was entirely correct in the case before us that a bite mark timed by Dr. West to have occurred minutes before death is relevant to show who might have been present at that time. In sum, the circuit court was right in finding that Dr. West’s testimony was relevant and reliable.

With regard to Dr. West’s credibility, the State points out that Verdict merely provided the circuit court with a copy of a request for a hearing filed by a criminal defendant in Mississippi which accused Dr. West of perjury. No response filed by Dr. West or any ruling by a Mississippi court was presented to the circuit court or forms a part of this appeal. This information is clearly insufficient for any determination relative to Dr. West’s credibility by this court, as it was for any ruling by the circuit court. There is also the point that the perjury allegation made in Mississippi appears to pertain to testimony Dr. West gave regarding alternate light imaging which was not the scientific technique used in the instant case. We affirm the circuit court’s ruling on this issue.

Finally, Verdict’s contention that the State did not show that a video deposition was necessary because Dr. West was unavailable for trial is equally insubstantial because the record reveals that he was in London, England at the time of the trial.

The record in this case has been reviewed in accordance with Ark. Sup. Ct. R. 4-3(h), and no reversible error has been found.

Affirmed.

       The circuit court found at trial that only two previous convictions could be used for habitual offender purposes.


author: Philip D. Hour, Special Justice. Eugene Hunt, Special Chief Justice,

text:
    Memory B. BALCH and Beverly Balch Price v. LEADER FEDERAL BANK for Savings
    92-1100
    868 S.W.2d 47
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993

      Arnold, Grobmeyer & Haley, by: Robert R. Ross, for appellants.

      Lax, Vaughn, Pender & Evans, by: Audrey R. Evans, for appellee.
   Philip D. Hour, Special Justice.

On May 13, 1970, the owner of four certain real estate lots in downtown Little Rock (the hotel lots) entered into a Net Ground Lease (ground lease) with a lessee who intended to construct a building on the lots for use as a hotel. The lessee owned four adjacent lots (the adjacent lots) which the lessee intended to use as a parking garage in conjunction with the hotel. Paragraph 17 of the ground lease contained the following language:

MORTGAGE OF THE FEE. The Lessor agrees that this lease will be subject and subordinate to the lien of first mortgage to be held by Liberty National Life Insurance Company of Birmingham, Alabama, its successors and assigns, placed or to be placed upon the leased premises as the permanent loan financing for improvements to be erected upon said premises, the maximum term of said mortgage not to exceed thirty (30) years. This agreement on the part of the Lessor to mortgage the fee shall apply only to the original construction loan and permanent financing loan and any renewal, extension or refinancing thereof. .. . Provided, however, that this lease shall be subordinated only for the actual cost of the improvements placed upon the demised premises or the amount of the loan, whichever is less.

The lessee obtained a loan from Liberty National Life Insurance Company (Liberty National) to finance the construction of the hotel, and the repayment of the loan was secured by a mortgage on the hotel lots that was signed by both the owner and the lessee.

Later the appellants, Memory B. Balch and Beverly Balch Price (the Batches), became the owners of the hotel lots, and The Crestwood Company (Crestwood) became the tenant under the ground lease and the owner of the adjacent lots. The parties have stipulated that the ground lease remained binding on the Balches and Crestwood, and that the mortgage to Liberty National was effective to encumber the fee simple absolute interest in the hotel lots.

On August 24, 1987, when the Liberty National loan was in default, Crestwood obtained a loan from appellee, Leader Federal Bank for Savings (Leader Federal), in an amount that was substantially equal to the unpaid balance of the Liberty National loan. The proceeds of the Leader Federal loan were used to pay off the Liberty National loan, and the mortgage securing the Liberty National loan was released.

All of the documents for the Leader Federal loan were prepared by or at the direction of Leader Federal. The loan was evidenced by a note signed by Crestwood, and it was secured by a mortgage on the hotel lots owned by the Balches, and also on the adjacent lots owned by Crestwood. Only Crestwood and its partners signed the mortgage, in which Crestwood acknowledged that it owned only a leasehold interest in the hotel lots. The Balches were not asked to sign the mortgage with Crestwood, nor did they do so. However, the Balches were asked to sign separate but identical Estoppel and Subordination Certificates (Certificate) which state:

TO: Leader Federal Savings & Loan Association
THIS IS TO CERTIFY THAT:
1. The undersigned is the Lessor under that. . . Net Ground Rental Lease ....
2. That said Net Ground Rental Lease has not been modified,... in any respect and is the only Lease between the undersigned and the Lessor ....
3. That the Net Ground Rental Lease is not in default....
4. Lessor acknowledges and consents to the loan in the amount of approximately $1,924,000.00 by Leader Federal Savings & Loan Association to The Crestwood Company to be secured by a mortgage on the premises which is the subject of the Net Ground Rental Lease. Lessor recognizes that the proceeds of such loan are to repay the loan to Liberty National Life Insurance Company and therefore pursuant to Paragraph 17 of the Net Ground Rental Lease, the Net Ground Rental Lease is subordinate to the loan and mortgage in favor of Leader Federal Savings & Loan Association.
5. That this Estoppel and Subordination Certificate is made to induce Leader Federal Savings & Loan Association to consummate a mortgage loan secured by a mortgage on the premises described above, knowing that Leader Federal Savings & Loan Association relies upon the truth and accuracy of this certificate in disbursing said funds for this loan.

Crestwood defaulted in the payment of the Leader Federal loan, and Leader Federal sued to foreclose the fee interest in the hotel lots and its improvements, as well as the adjacent lots. Leader Federal contends, and the lower court found, that the Certificate, when considered with the lease, is tantamount to a lien on the Balches’ fee interest in the hotel lots. The Balches contend that they were not a party to the mortgage and that the Certificate only subordinates their interest in the ground lease, and not their fee interest in the hotel lots, to Leader Federal’s mortgage.

The case was submitted to the chancellor on a stipulation of facts, depositions and oral arguments of counsel. The record indicates that the chancellor may have had difficulty in determining the intent of the parties with respect to the meaning of the various documents involved, but the chancellor ruled that Leader Federal is entitled to foreclose the Balches’ fee interest in the hotel lots under the mortgage.

For reversal, the Balches contend that (1) the chancellor erred in holding that the ground lease and Certificate collectively constitute a lien upon which Leader Federal could foreclose the Balches’ fee interest in the hotel lots; (2) the chancellor erred in applying a “preponderance of the evidence”, instead of a “clear and convincing”, standard to the proof offered by Leader Federal to establish that the Certificate and the ground lease, considered together, constitute a lien on the Balches’ fee interest in the hotel lots; and (3) the chancellor erred by not making a finding on the extent of the Balches’ subordination in light of the limiting language of the ground lease.

We find the chancellor’s decision to be in error.

It is conceivable that a lessor might effectively subject his fee interest in real estate to the lien of a mortgage that is signed only by the lessee. Such a result would occur if the lessor signs a subordination agreement or other document that contains language indicating that he clearly and unequivocally thereby intends to subject his fee interest to the mortgage, or if that intent can clearly and reasonably be determined from other attendant circumstances. The same result would occur if the lessor signs a document that gives to another, such as the lessee, authority to sign the mortgage in behalf of the lessor. However, the intention of the parties at the time of execution of the documents, as expressed by the language employed therein, governs. Lightle v. Rotenberry, 166 Ark. 337, 266 S.W. 297 (1924).

In this case, the Certificate appears on its face to be an act of the Balches that was intended to subordinate their interest in the ground lease to Leader Federal’s mortgage. The Certificate refers only to the Balches’ interest in the ground lease; and there is no clear reference in the Certificate to any intent by the Balches to subordinate their fee interest in the hotel lots, unless that intent can be found in the following language in the Certificate:

Lessor . . . consents to the loan ... to be secured by a mortgage on the premises which is the subject of the Net Ground Rental Lease ....
. . . [T]his . . . Certificate is made to induce Leader Federal ... to consummate a mortgage loan secured by a mortgage on the premises described above[.]

Leader Federal insists that such an intent is found in the totality of the transaction, including the language in the Certificate when considered together with the language contained in Paragraph 17 of the ground lease. We disagree.

To some extent, the language used in Paragraph 17 of the ground lease is confusing. Paragraph 17 is captioned “Mortgage of the Fee”. The first sentence in Paragraph 17 states, “[t]he lessor agrees that this lease will be subject and subordinate to the lien” of a certain mortgage. The next sentence states, “[t]his agreement on the part of the Lessor to mortgage the fee”; and then the last sentence states, “this lease shall be subordinated only for . . . .” (Emphasis added).

Interpreting the ground lease most favorably to Leader Federal, it gave to the lessee the right to require the lessor to mortgage the fee interest in the lessor’s land. The Balches’ predecessor executed such a mortgage relative to the loan made by Liberty National, but they were not asked to execute a mortgage relative to the loan made by Leader Federal, nor did they do so. No language in the Certificate, standing alone, is facially sufficient to be construed as the granting of a lien by the Balches on their fee interest in the hotel lots. On its face, the purpose of the Certificate appears to have been to (1) identify the Balches as the lessors under the ground lease; (2) confirm that the ground lease had not been modified and that no other lease existed; (3) confirm that the ground lease was not in default; (4) evidence the Balches’ consent to a loan to be made to Crestwood by Leader Federal in a specific amount, to be secured by a mortgage on the hotel lots and on the adjacent lots (but without specifying who would be asked to sign the mortgage), and to subordinate the Balches’ interest in the ground lease to such mortgage; and (5) establish that the truth of the statements contained in the Certificate was an inducement to Leader Federal to make the loan to Crestwood. Absent an actual request for the lessor to sign a mortgage, a reasonable lessor who is presented such a document as the Certificate would logically deduce that the lender intended to take a mortgage only on the lessee’s leasehold interest in the land. One would not normally think that by signing such a document he would be encumbering the fee interest in his land.

Therefore, the pivotal question to be resolved here is whether the Certificate, which appears on its face to be a subordination of the Balches’ interest in the lease, was actually intended to be a subordination of their fee interest in the hotel lots.

In cases where a deed, absolute on its face, is alleged to actually constitute a mortgage, we have consistently held that the document is presumed to be what it appears to be, and that the party alleging it to be otherwise has the burden of proof by clear and convincing evidence. Carter v. Zachary, 243 Ark. 104, 418 S.W.2d 787 (1967); Wilson v. Mason, 191 Ark. 472, 86 S.W.2d 555 (1935); Blanton v. Davis, 107 Ark. 1, 154 S.W. 947 (1913); Duvall v. Laws, Swain & Murdoch, P.A., 32 Ark. App. 99, 797 S.W.2d 474 (1990); Brown v. Cole, 27 Ark. App. 213, 768 S.W.2d 549 (1989); Wensel v. Flatte, 27 Ark. App. 5, 764 S.W.2d 627 (1989). Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction of the allegations sought to be established. First Nat’l Bank v. Rush, 30 Ark. App. 272, 785 S.W.2d 474 (1990).

Applying those principles to this case, the Certificate must be presumed to be what it appears to be on its face — a subordination of the Balches’ interest in the ground lease — unless Leader Federal proves otherwise by clear and convincing evidence. Leader Federal argues that in cases where no parol evidence is produced to vary the terms of a document, “preponderance of the evidence” is the quantum of proof that should be required, while “clear and convincing” is the standard that should be applied only where parol evidence is offered. Leader Federal has cited no positive case law to support that view, and the argument is without merit. It is inconceivable that a party who has the burden of proving a proposition by clear and convincing evidence might avoid that standard of proof, and take advantage of a lesser standard, by abstaining from offering parol evidence. Further, in Hickman v. Trust of Heath, House and Boyles, 310 Ark. 333, 835 S.W.2d 880 (1992), the “clear and convincing” standard was applied to the interpretation of two documents when no parol evidence was offered to assist in the interpretation.

As the proponent of the proposition that the Certificate, when considered with the ground lease, was intended to constitute an encumbrance of the Balches’ fee interest in the hotel lots, Leader Federal has the burden of proving that proposition. Since the Certificate does not appear on its face to encumber the fee, Leader Federal is required to meet its burden of proof by clear and convincing evidence, whether or not it chooses to present parol evidence.

At best, an ambiguity exists when the provisions of the Certificate are considered together with the applicable provisions of the ground lease. The Certificate states on its face that the Balches are subordinating their interest in the ground lease, while the ground lease, if given its most liberal interpretation, contains only an agreement to mortgage the fee. An agreement to mortgage property is an agreement to execute (or sign) and deliver a mortgage. It does not, in and of itself, grant a lien on the property. Does the agreement to sign a mortgage, which is contained in the ground lease that was signed long before the Certificate, modify the Balches’ otherwise clear statement of intent in the Certificate to subordinate only their interest in the ground lease? We think not.

There is nothing in the Certificate to reasonably indicate that the Balches intended to confer upon Crestwood the authority to execute the mortgage on their behalf; and the mortgage does not indicate that Crestwood was acting in a representative capacity for the Balches in signing the mortgage. In fact, the mortgage recites that Crestwood had only a leasehold interest in the hotel lots. Further, there is no clear indication in the Certificate that the Balches thereby intended to subordinate anything other than their interest in the ground lease. To the contrary, the Certificate clearly states, “therefore, pursuant to Paragraph 17 of the . . . Lease, the . . . Lease is subordinate to the loan and mortgage in favor of Leader Federalf.]”

If Leader Federal had wanted a lien on the Balches’ fee interest in the hotel lots, it could have insisted that the lien be granted in the conventional manner by requiring the Balches to sign a mortgage; or, in the alternative, it could have insisted on a lien in a less conventional manner by preparing the Certificate in such a way as to make it clear that the Balches were subordinating their fee interest, and not just their interest in the ground lease. A third way that Leader Federal could have obtained a lien on the Balches’ fee interest would have been to prepare the Certificate in such a manner to make it clear that the Balches were appointing Crestwood as their attorney-in-fact to execute the mortgage in their behalf. None of those methods was successfully employed by Leader Federal.

The record indicates that the Certificate was prepared by or at the direction of Leader Federal. The record does not reflect who prepared the ground lease, but Leader Federal adopted the language of the ground lease by referring to it in the Certificate. The Certificate does not clearly reflect an intention by the Balches to encumber their fee interest or to subordinate their fee interest to Leader Federal’s mortgage. When the provisions of the Certificate are considered with the applicable provisions of the ground lease, the most that can be said is that an ambiguity exists which must be resolved against Leader Federal, as the author of the Certificate. Planters Nat’l Bank of Mena v. Townsend, 197 Ark. 267, 123 S.W.2d 527 (1938).

The intention of an owner to encumber his property should never be established by mere inference or speculation. Where a document, which appears on its face to be only a subordination of an interest in a lease to a mortgage, is alleged to actually constitute an encumbrance of the fee interest in the land that is the subject of the lease, the document is presumed to be what it appears to be, and the party alleging it to be otherwise has the burden of proof by clear and convincing evidence. Blanton, 107 Ark. 1, 154 S.W. 947.

The only evidence in the record that might be found. to establish an obligation on the Balches to encumber their fee interest is the language contained in Paragraph 17 of the ground lease. If that language is so construed, the Balches’ obligation thereunder would be to mortgage their land if requested to do so. For reasons which are not clear in the record, neither Crest-wood nor Leader Federal requested the Balches to sign a mortgage to secure Leader Federal’s loan to Crestwood, and the Balches did not do so. The Certificate clearly states on its face that the ground lease, and not the Balches’ fee interest, is subordinate to the mortgage; and the Certificate did not authorize Crest-wood to sign the mortgage in behalf of the Balches. Therefore, it cannot be logically and reasonably concluded from the record that by signing the Certificaté the Balches intended to encumber their fee interest in the hotel lots.

The Balches’ contention that the chancellor erred by not making a finding as to the extent of their subordination should be resolved regardless of whether the Balches are found to have subordinated their interest in the ground lease or their interest in the fee. We find the Balches’ position on this point to be without merit. By signing the Certificate, the Balches effectively either (1) agreed that the amount of the Leader Federal loan was equal to or less than the cost of the improvements placed on the hotel lots or (2) waived the applicable provisions of the ground lease regarding that limitation.

For the reasons stated, the decision below is reversed and the case is remanded to the lower court for the purpose of entering a decree that is consistent with this opinion.

Hays, J., Special Chief Justice Eugene Hunt, and Special Justice C. Joseph Calvin dissent.

Holt, C.J., Dudley and Brown, JJ., not participating.

Eugene Hunt, Special Chief Justice,

dissenting. The majority takes the position that the fee interest owned by a lessor cannot be the subject of a foreclosure decree, regardless of the facts, unless the holder of that fee interest signs or authorizes another to execute a mortgage encumbering the fee interest.

On September 10, 1992, the chancery judge found that Leader Federal Bank for Savings (Leader Federal) the lender to The Crestwood Company, the lessee, had a right to foreclosure upon the fee interest held by Beverly Balch Price and Memory B. Balch (the Balches) even though, the Balches, owners of the fee interest had not been a party to the mortgage encumbering their interest.

On May 13, 1970, the predecessors in title of the Balches entered into a lease of lots one (1), two (2), three (3), and four (4) of Block 106, Original City of Little Rock, Pulaski County, Arkansas, which is entitled Net Ground Rental Lease with the predecessors of The Crestwood Company. All parties have agreed that they are bound by the acts of their predecessors, therefore the mesne transactions which placed title in the Balches and The Crestwood Company need not be described in this opinion. Under the terms of the lease, the Balches would retain fee title to the land owned by them and receive rental payments from The Crest-wood Company. The Crestwood Company as lessee of the property would build a hotel on the land owned by the Balches. Lots nine (9), ten (10), eleven (11) and twelve (12) in block 106 to the Original Town of Little Rock, Pulaski County, Arkansas, are owned by The Crestwood Company. A parking garage was constructed upon the foregoing described land owned by The Crest-wood Company which is adjacent to the hotel.

The Balches and The Crestwood Company realized that it would be necessary to borrow money to finance construction of the hotel, and they provided for this expected occurrence in the lease so the Balches agreed to subordinate their fee interest to the lender who financed the development or to the successors who agreed to refinance the original construction loan. The hotel was constructed by a loan made by Liberty National Life Insurance Company (Liberty National) to the Crestwood Company lessee. The Crestwood Company executed a mortgage to Liberty National which mortgage encumbered land owned by the Balches and the land owned by The Crestwood Company.

The hotel was constructed and is known as the “Holiday Inn City Center.” The operation of the hotel did not generate sufficient cash flow to keep the mortgage to Liberty National current and foreclosure was threatened. The Balches were aware that unless the Liberty National loan was brought current through refinancing or some other means they would lose their land.

On August 24, 1987, The Crestwood Company borrowed $1,923,829.68 from Leader Federal. The loan closing documents were a promissory note and a mortgage by The Crestwood Company on the real property it owned upon which a parking garage is located adjacent to the hotel, the improvements located on the property owned by the Balches, and the leasehold estate held by The Crestwood Company in the property owned in fee by the Balches to Leader Federal. In addition to the mortgage, the Crest-wood Company assigned its rights in the Net Ground Rental Lease and also assigned all rents to be collected on the hotel property to Leader Federal. The Balches signed separate documents entitled “Estoppel and Subordination Certificate” prior to the loan closing between Leader Federal and The Crestwood Company.

After the loan was closed, Liberty National was paid in full and it released the lien of first mortgage held by it on the property. The mortgage encumbered both, the Net Ground Rental Lease between the Balches and The Crestwood Company and the fee interest of The Crestwood Company.

On September 17, 1990, The Crestwood Company filed bankruptcy and Leader Federal sought and secured relief from the automatic stay to pursue foreclosure of its security interest in the Holiday Inn City Center. On November 27, 1991, Leader Federal filed a complaint in the chancery court of Pulaski County, Fifth Division, seeking to foreclose not only the interest of The Crestwood Company which is lots nine (9), ten (10), eleven (11) and twelve (12) in Block 106, Original Town of Little Rock, Arkansas, but also the fee simple interest held by the Balches in lots one (1), two (2), three (3) and four (4), Block 106, Original City of Little Rock, Arkansas. The case was submitted to the chancellor upon the stipulations of the parties. On September 10, 1992, a decree of foreclosure was entered foreclosing the fee simple interest of the Balches. The relevant portion of Paragraph 17 of the Net Ground Rental Lease reads:

MORTGAGE OF THE FEE. The Lessor agrees that this lease will be subject and subordinate to the lien of first mortgage to be held by Liberty National Life Insurance Company of Birmingham, Alabama, its successors and assigns, placed or to be placed upon the leased premises as the permanent loan financing for improvements to be erected upon said premises, the maximum term of said mortgage not to exceed thirty (30) years. This agreement on the part of the Lessor to mortgage the fee shall apply only to the original construction loan and permanent financing loan and any renewal, extension or refinancing thereof.

Paragraph 4 of the “Estoppel and Subordination Certificates” provides that:

Lessor acknowledges and consents to the loan in the amount of approximately $1,924,000.00 by Leader Federal Savings & Loan Association to The Crestwood Company to be secured by a mortgage on the premises which is the subject of the Net Ground Rental Lease. Lessor recognizes that the proceeds of such loan are to repay the loan to Liberty National Life Insurance Company and therefore pursuant to Paragraph 17 of the Net Ground Rental Lease, the Net Ground Rental Lease is subordinate to the loan and mortgage in favor of Leader Federal Savings & Loan Association.

A ruling in this case turns upon an interpretation of the effect of the foregoing language from the instruments executed by the Balches and their predecessors in interest.

The chancellor found at Paragraph 8 in the foreclosure decree that Leader Federal, as a result of the mortgage from The Crest-wood Company, the Estoppel and Subordination Certificates from the Balches and the Net Ground Rental Lease between the Balches and their predecessors in interest, holds a first mortgage on the property and its right to foreclose is absolute. The court granted Leader Federal an in rem judgment against the mortgaged property in the principal amount of $2,191,996.32 plus interest as of February 2, 1992, and attorneys fees as provided in the note which evidenced the debt between Leader Federal and The Crest-wood Company.

The chancellor found that Leader Federal, as a.result of the mortgage from The Crestwood Company, the Estoppel and Subordination Certificates from the Balches and the Net Ground Rental Lease between The Crestwood Company and the Balches holds a first mortgage on the property and its right to foreclose is absolute. This finding is clearly supported by the record. This court has not answered the question presented in this appeal in any of its previous decisions. The majority has looked to this court’s well developed body of law governing real estate foreclosure without an in depth analysis and has said that a party must execute a document identified as a mortgage before a foreclosure decree will lie. Such a finding ignores the transaction that occurred between the Balches, The Crestwood Company and Leader Federal. The majority appears to be paying blind homage to their conclusion that there cannot be a foreclosure without a mortgage of the fee simple interest.

The issue of whether the fee holder or lessor must sign a lessee’s mortgage was addressed by the Kansas Supreme Court in G. Credit Co. v. Mid-West Land Dev., Inc., 485 P.2d 205 (Kan. 1971). The Kansas court held that if the landlords had intended that all mortgages to which their fee interest was subordinated by the terms of the lease be executed by them, they could have included that condition in the lease. The court concluded that it is not necessary to have the lessors’ signatures on the mortgage unless there is an express condition in the lease agreement making lessors’ signatures on the mortgage contract necessary. There is no such condition in lessors’ lease to lessee. There is a clearly stated agreement to mortgage the fee to a refinancing lender in Paragraph 17 of the lease. The Balches effectively subordinated their interest to the lessee’s mortgage, by their execution of the Estoppel and Subordination Certificates. The Estoppel and Subordination Certificates and the Net Ground Rental Lease were effective in providing a basis upon which the Balches’ fee interest could be foreclosed upon only because The Crestwood Company executed a mortgage to Leader Federal covering the land described in both the Net Ground Rental Lease and the Estoppel and Subordination Certificates. The authority given The Crest-wood Company to mortgage the fee owned by the Balches is contained in the Net Ground Rental Lease. The Estoppel and Subordination Certificates cause the interest of the Balches to be inferior to that of Leader Federal in this foreclosure action. By virtue of subordinating the ground lease, the fee interest of lessors is subordinated to the mortgage held by Leader Federal. As explained in a University of Miami Law Review:

The landowner who enters into a subordinated ground lease not only surrenders control of the property to his tenant . . ., but he also covenants to subject the property to a mortgage, the proceeds of which go to the tenant. The mortgage or mortgages to which the landlord subordinates are fee mortgages, since they not only encumber his interest in the land, but his tenant’s as well.

Seneca B. Anderson, Negotiating and Drafting Leases for the Landlord, 25 U. of Miami L. Rev. 361, 390-91 (1971). To understand the transaction and that it resulted in the subordination of the fee, a focused study of the language of the two documents signed by the Balches as lessors and holders of the fee interest is necessary. The Balches signed the Estoppel and Subordination Certificates and their predecessor in interest signed the Net Ground Rental Lease. A close review of Paragraph 4 of the Estoppel and Subordination Certificates confirms that such agreement signed by the lessors effectively subordinates the ground lessors’ fee interest to the Leader Federal mortgage. Paragraph 4 of the Estoppel and Subordination Certificates states, inter alia, that:

Lessor acknowledges and consents to the loan in the amount of approximately $1,924,000.00 by Leader Federal Savings & Loan Association to The Crestwood Company to be secured by a mortgage on the premises which is the subject of the Net Ground Rental Lease. Lessor recognizes that the proceeds of such loan are to repay the loan to Liberty National Life Insurance Company and therefore pursuant to Paragraph 17 of the Net Ground Rental Lease, the Net Ground Rental Lease is subordinate to the loan and mortgage in favor of Leader Federal Savings & Loan Association.

The foregoing paragraph must be read in conjunction with the Net Ground Rental Lease. When the two documents are read together, it is clear that the Balches, the owners of the fee interest and lessor herein agreed to subordinate their fee interest in the land to the mortgage of Leader Federal. In the first sentence of Paragraph 4 of the Estoppel and Subordination Agreement, the ground lessors agree to give a mortgage on the premises which is the subject of the Net Ground Rental Lease. It was not necessary for the Balches to follow up and execute a mortgage. The Balches’ consent to the loan was relied upon by Leader Federal. The “premises” described in the Net Ground Rental Lease is not a building, but Lots 1-4, which is the description of the land contained in the mortgage from The Crestwood Company to Leader Federal.

The second sentence of Paragraph 4 states that “pursuant to Paragraph 17 of the Net Ground Rental Lease, the Net Ground Rental Lease is subordinate to the loan and mortgage in favor of Leader Federal Savings & Loan Association.” By connecting this language to that contained in Paragraph 17 of the Net Ground Rental Lease, it is clear that the agreement is to subordinate the fee interest to the mortgage. Paragraph 17 is entitled “Mortgage of the Fee.” The language of Paragraph 17 of the Net Ground Rental Lease states: “This agreement on the part of the Lessor to mortgage the fee shall apply only to the original construction loan and permanent financing loan and any renewal, extension or refinancing thereof.” By inserting the reference to Paragraph 17, the Balches, as ground lessors-fee owners agreed to subordinate their fee interest to the lender providing funds for the purpose of refinancing the original loan. By signing the Estoppel and Subordination Certificates, the Balches, as ground lessors, signed the documents which evidenced their present agreement. Signing an agreement to subordinate their fee interest to the Leader Federal mortgage has the same effect upon the Balches as The Crestwood Company’s signing the lessee’s mortgage to Liberty National and subsequently to Leader Federal.

Well-settled Arkansas law requires that different clauses to a single agreement be construed, not in isolation, but as a whole and in light of the circumstances surrounding the execution of the agreement. Because Paragraph 17 of the Net Ground Rental Lease is incorporated by reference into the Estoppel and Subordination Certificates, Paragraph 17 must be read as a clause of the agreement. This court has long followed the principle that these clauses be harmonized by ascertaining the intention of the parties within the context of the transaction under review:

In seeking to harmonize different clauses of a contract, we should not give effect to one to the exclusion of another even though they seem conflicting or contradictory, nor adopt an interpretation which neutralizes a provision if the various clauses can be reconciled. The object is to ascertain the intention of the parties, not from particular words or phrases, but from the entire context of the agreement.

RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 554, 713 S.W.2d 462, 465 (1986) (citing Wynn v. Sklar & Phillips Oil Co., 254 Ark. 332, 493 S.W.2d 439 (1973)) (emphasis added).

In interpreting the meaning of contracts, the object is to determine the intention of the parties from the entire context of the agreement. Intent is ‘“ascertained, not by a process of dissection in which words or phrases are isolated from their context, but rather from a process of synthesis in which the words and phrases are given a meaning in accordance with the obvious purpose of the . . . contract as a whole.’” Republic Nat’l Life Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 354 (Minn. 1979) (quoting Cement, Sand & Gravel Co. v. Agricultural Ins. Co., 30 N.W.2d 341, 345 (Minn. 1947)).

When Paragraph 17 of the Net Ground Rental Lease and Paragraph 4 of the Estoppel and Subordination Certificates are read together, and when the words are given meaning in accordance with the obvious purpose of the contract as a whole, it is clear that the Balches intended to and did subordinate their fee to Leader Federal’s mortgage.

Judge Brantley honored the terms of the two documents and found that, as a matter of law, the Estoppel and Subordination Certificates when read in conjunction with the Net Ground Rental Lease served as a sufficient predicate upon which a foreclosure action may lie.

Chancery cases are tried de novo on the record on appeal. Dopp v. Sugarloaf Mining Co., 288 Ark. 18, 702 S.W.2d 393 (1986); Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Walt Bennett Ford, Inc. v. Pulaski County Special School Dist., 274 Ark. 208, 624 S.W.2d 426 (1981). The findings of the chancellor are not against the preponderance of evidence. Leader Federal met its burden in this case and there is sufficient evidence to undergird the chancellor’s decision.

I must respectfully dissent.

Hays, J. and Special Justice C. Joseph Calvin join in this dissent.


author: Per Curiam.

text:
    Michael CLAY v. STATE of Arkansas
    CR 93-1262
    866 S.W.2d 413
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Per Curiam.

Michael Clay was found guilty in 1991 of capital murder and sentenced to life imprisonment without parole. Judgment was entered August 16, 1991. On September 3, 1991, the public defender, Thomas Montgomery, filed a notice of appeal. The trial court, also on September 3, 1991, entered an order substituting Davis Loftin as appointed counsel to represent the convicted defendant in the appeal.

The record was not tendered to this court, and in 1993 appellant sought to file a pro se motion for belated appeal pursuant to Criminal Procedure Rule 36.9. Appellant did not state in the tendered motion that a notice of appeal had been timely filed or provide a record of the lower court proceedings from which it could be determined that the notice had been filed. Because Rule 36.9 provides that this court shall not entertain a motion for belated appeal unless application has been made within eighteen months of the date of entry of judgment, the motion was returned as untimely.

Appellant subsequently proceeded in the United States District Court for the Eastern District of Arkansas on a petition for writ of habeas corpus, contending that he had not been afforded effective assistance of counsel with respect to the unperfected appeal. The magistrate entered an order November 18, 1993, directing that counsel be appointed and an appeal permitted. The State in response to that order has filed the motion for belated appeal now before us.

We grant the motion and appoint Terri Harris to serve as appellate counsel. Counsel is directed to file within thirty days a petition for writ of certiorari to bring up the entire record, or that portion of the record, necessary to the appeal of a judgment for capital murder for which a life sentence was imposed.

The trial court is directed to hold an evidentiary hearing to determine why the appeal was not perfected in accordance with the prevailing rules of procedure. The court’s Findings of Fact shall be filed in this court with the record of the evidentiary hearing within forty-five days.

Motion granted.


text:
    STATE of Arkansas v. Benjamin Brigham BALDWIN
    CR 93-1283
    866 S.W.2d 413
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993
    No response.

      Brenda Austin, for defendant.
   Per Curiam.

Benjamin Brigham Baldwin, by his attorney, has filed a motion for a rule on the clerk.

His attorney, Brenda Horn Austin, admits in her motion that the record 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: Jack Holt, Jr., Chief Justice.

text:
    STATE of Arkansas v. Freddie Jerome WILLIAMS
    CR 93-870
    868 S.W.2d 461
    Supreme Court of Arkansas
    Opinion delivered January 10, 1994

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant;

      William R. Simpson, Jr., Public Defender, by: Don Thompson, Deputy Public Defender, for appellee.
   Jack Holt, Jr., Chief Justice.

Pursuant to Ark. R. Crim. P. 36.10(c), the State of Arkansas brings this appeal, contending that the sentencing of appellee, Freddie Jerome Williams, to three years probation for possession of 2.677 grams of cocaine with intent to deliver was error. We agree with the State, reverse the findings of the trial court, and remand for resentencing.

On June 4, 1992, Pulaski County Sheriff’s Department deputies placed Williams under arrest for possession of what appeared to be rock cocaine. Tests by the crime lab revealed that the “rocks” were 2.677 grams of seventy-seven percent cocaine base.

On May 21, 1993, Williams pleaded guilty to a charge of violating Ark. Code Ann. § 5-64-401, possession of a controlled substance with intent to deliver. At sentencing, over the objection of the prosecutor, the circuit judge sentenced Williams pursuant to the provisions of the Alternative Service Act, Ark. Code Ann. § 16-93-501-10 (Supp. 1991), to “three years’ supervised probation at the Watershed program ... You’re to show proof to this office of attendance. You’re further to submit to random drug testing and report weekly to this probation office. You’re fined Two Hundred Dollars plus costs.”

The State objected to this disposition of the case on the ground that intent to deliver cocaine is a Class Y felony and a minimum sentence of ten years is mandatory under Ark. Code Ann. §§ 5-4-301(a)(l)(F) (Supp. 1991) and 5-4-104(e)(l)(F) (Supp. 1991).

Williams points out that Act 192 of 1993 amends § 5-4-301(a)(l)(F) and § 5-4-104(e)(l)(F) to remove the language from the two statutes which prohibited trial courts from imposing suspended imposition of sentence or probation of controlled substance offenders. This is true. However, his argument ignores the fact that the statute in effect on the date the crime was committed is the statute that must govern sentencing, State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993); Hunter v. State, 314 Ark. 427, 645 S.W.2d 954 (1983), and in the absence of a provision stating that an act will apply retroactively, the act will apply prospectively only. Townsend, supra.

Act 192 of 1993 became effective on August 13, 1993 — more than a year after the crime was committed and even some months after the sentence in this case was fixed. As we have stated on several occasions, Act 192 doés not provide for retroactive application, and, thus, its operation is prospective only.

These same issues were addressed a short while ago in State v. Whale, 314 Ark. 576, 863 S.W.2d 290 (1993) and Townsend, supra, and in both instances, we remanded the cases for resentencing. Although we have set a precedent in these cases as to the prospective application of Act 192 of 1993, we consider it appropriate to accept this appeal by the State under Ark. R. Crim. P. 36.10(c) in order to perpetuate uniformity in sentencing. Even-handedness on the part of our sentencing courts is necessary for the proper administration of justice.

Reversed and remanded for resentencing.