author: Robert H. Dudley, Justice.

text:
    Otis REYNOLDS et al. v. COMMODITY CREDIT CORPORATION
    89-225
    780 S.W.2d 15
    Supreme Court of Arkansas
    Opinion delivered November 20, 1989

      Boyce & Boyce, by: Edward Boyce, for appellants.

      Charles A. Banks, United States Att’y, Eastern District of Arkansas, by: Patrick Harris, Asst. United States Att’y, for appellee.
   Robert H. Dudley, Justice.

The issue in this case is whether the Chancellor erred in finding that the appellee, Commodity Credit Corporation, was a protected depositor of grain under the Arkansas Public Grain Warehouse Law and thus entitled to participate in the pro-rata disbursement of a warehouseman’s bond. The Chancellor was correct in allowing the appellee’s claim, and we affirm.

Arkansas State Plant Board audits of the Farmers Mill & Seed — Bulk Grain Division, a grain warehouse, revealed significant shortages in its stores of rice. The Board called the warehouseman’s $75,000.00 irrevocable letter of credit, which had been posted with the Board in lieu of a surety bond, and ordered a suspension of the warehouseman’s license. The Board filed this suit in chancery court pursuant to Ark. Code Ann. § 2-17-402 (1987), asking that its commissioner be appointed receiver to take custody of the grain stored, to distribute that grain and the proceeds of the letter of credit. Ultimately, the Chancellor held that appellee, CCC, was entitled to share in the proceeds of the letter of credit.

CCC is an agency of the United States Department of Agriculture. It was established for the purpose of stabilizing and supporting prices of farm commodities and facilitating orderly distribution of those commodities. One method of supporting prices of commodities is through the use of non-recourse loans to farmers. Here, a farmer borrowed money from the CCC and collateralized the loan with rice. Under the agreement between the farmer and the CCC, the farmer forfeited the rice to the CCC to satisfy the loan, and the CCC took title to the grain. The rice was stored with the warehouseman, who gave the CCC a warehouse receipt.

The CCC subsequently entered into a contract to sell the rice to the warehouseman. The consideration was $241,126.20 for 22,964.40 cwt. of rice. Full payment was to be made to CCC within 10 days after the date of the sale. A leased wire, containing part of the terms of the contract, provided that “CCC will issue loading orders and transfer title will be made at the time of receipt of payment.” The warehouseman paid $75,000.00 of the $241,126.20 purchase price. CCC sent a second leased wire, which provided:

On March 29, 1988, CCC received a partial payment in the amount of $75,000.00 for the rice. This is to inform you that your loading order releasing any of the rice will not be mailed until payment in full (including interest payments) is received. Our office has made numerous attempts by phone to contact you to resolve this matter. Please contact . . .to inform us of your intentions on completing payment and taking title of this rice.

The warehouseman had not paid the remainder of the purchase price when the shortage in stored rice was discovered, and the letter of credit was called. The CCC still held the warehouseman’s receipt.

Appellants are owners of other stored rice in the same grain warehouse and will share in the proceeds of the letter of credit. Unfortunately, the $75,000.00 from the letter of credit is not sufficient to pay all of the claims in full. If appellants can prevent appellee CCC from sharing in the proceeds of the letter of credit, their pro-rata recovery will be much greater.

Appellants make two assignments of error. In one they argue that the trial court “erred in holding that the CCC was one of a class of protected depositors of grain due to the purpose of and an ambiguity and difference in wording between Act 83 of 1979 and Act 401 of 1981.” The argument is without merit.

The storing of the rice in the warehouse is governed by Act 83 of 1979, the Arkansas Public Grain Warehouse Law, Ark. Code Ann. §§ 2-17-201 to -238 (1987). In this case, a letter of credit was posted in lieu of a bond as required by Ark. Code Ann. § 2-17-209(b) (1987). Ark. Code Ann. § 2-17-209(a)(1)(A)(ii) provides:

The bond shall run to the State of Arkansas and be for the benefit of all depositors or storers of grain, their legal representatives, attorneys, or assigns.

Clearly, CCC was a member of the class of protected depositors as a storer of grain and is entitled to share in the proceeds of the bond.

Act 401 of 1981, which is codified as Ark. Code Ann. § § 2-17-301 to -304 (1987), provides special protection to growers and producers of grain. See Note, Act 401 of the Public Grain Warehouse Law: An Exception to the U.C.C. Concept of Voidable Title, 37 Ark. L. Rev. 293 (1983). It provides that a grower or producer will not lose title to his grain by delivering it to a public grain warehouseman, and that a sale of grain by a public grain warehouseman is void unless the sale is supported by a written document executed by the owner which specifically conveys title to the grain to the warehouseman. Appellants point out that the appellee CCC is not a grower or a producer and thus, not covered by this Act. It does not matter that CCC is not entitled to this special protection under Act 401 of 1981. CCC is protected by Act 83 of 1979, and the 1979 Act does not conflict with, and was not repealed by, the 1981 Act.

Appellant’s other assignment of error is that the trial “court erred in finding that the CCC was a protected depositor of grain . . .where. . . the CCC had entered into a contract of sale of its grain with the warehouseman.” Again, the trial court ruled correctly.

A part of the Arkansas Public Grain Warehouse Law, Ark. Code Ann. § 2-17-203 provides:

2-17-203. Applicability.
(a) . . .
(b) The provisions and definitions of the Uniform Commercial Code,. . . , relating to warehouse receipts, to the extent not inconsistent with this subchapter, shall govern warehouse receipts issued by public grain warehousemen, and the other provisions of the Uniform Commercial Code shall also be applicable to the provisions of this subchapter to the extent not inconsistent with this subchapter.

This subsection clearly provides that provisions of the Uniform Commercial Code are applicable so long as they are not inconsistent with the Arkansas Public Grain Warehouse Law. Ark. Code Ann. § 4-2-401, a part of the UCC, is not inconsistent. In pertinent part, it provides:

(3) Unless otherwise explicitly agreed where delivery is to be made without moving the goods:
(a) If the seller is to deliver a document of title, title passes at the time when and the place where he delivers such documents;

A warehouse receipt is a document of title. Ark. Code Ann. § 4-1-201(15).

In summary, the agreement in this case called for payment in full before surrender of the warehouse receipt. The documents of title were not to be, and never were, delivered. Thus, title did not pass from the CCC to the warehouseman. The rice was “stored grain” as defined by Ark. Code Ann. § 2-17-202(4), and “[t]he bond shall... be for the benefit of all depositors or storers of grain. . . .” Ark. Code Ann. § 2-17-209(a)(l)(A)(ii). Accordingly, the trial court correctly ruled that the appellee, CCC, was a protected depositor of grain, and that it was entitled to share in the proceeds of the letter of credit.

Affirmed.


source: Caselaw Access Project

author: Steele Hays, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Billy MCDONALD v. Tony WILCOX
    89-202
    780 S.W.2d 17
    Supreme Court of Arkansas
    Opinion delivered November 20, 1989

      Rees Law Firm, by: David Rees and Paul J. Teufel, for appellant.

      Snellgrove, Laser, Langley & Lovett, by: Malcolm Culpepper, for appellee.
   Steele Hays, Justice.

In this personal injury case, the only issue on appeal is whether the trial court erred in denying appellant’s motion in limine to exclude evidence of prior crimes to impeach the testimony of appellant and his chief witness pursuant to A.R.E. Rule 609.

On January 14, 1987, at approximately 10:30 p.m., appellant, Billy McDonald and Phillip Hazelwood were traveling south on Highway 141 in Greene County, Arkansas. At the same time and place appellee, Tony Wilcox, was driving his vehicle in a northerly direction and the two vehicles collided in appellant’s lane of traffic. McDonald contended that Wilcox’s car suddenly swerved into his lane of traffic, whereas Wilcox contended that McDonald’s car had come into his lane and he swerved into the opposing lane attempting to avoid a collision.

It was stipulated that McDonald’s blood alcohol level after the accident was .272, almost three times the legal limit for intoxication while operating a vehicle. McDonald and Hazel-wood also testified they were mixing drinks just prior to the collision. The investigating police officer testified that at the time of the accident, McDonald’s reactions, his motor skills and his judgment, were substantially impaired as a result of the ingestion of alcohol. He further testified that he smelled no alcohol on the breath of Wilcox and saw no indication of any source or use of alcohol by Wilcox. One of the officers testified that the speed limit at that location was 50 mph, and by his calculations, McDonald was traveling 62 mph at the time of the accident, and Wilcox, 40 mph.

The litigation was initiated by Wilcox suing both McDonald and Hazelwood. McDonald then counterclaimed against Wilcox for both property damage and personal injuries. Prior to trial Wilcox’s claims were settled and the case was tried only on McDonald’s counterclaim. The jury returned a verdict in favor of Wilcox and against McDonald.

Both McDonald and Hazelwood had prior felony convictions and a motion in limine was made to exclude any mention of prior convictions “for attempted murder and assault.” The motion was apparently denied and appellant submits this was error under A.R.E. Rule 609. We cannot address the argument on its merits however, as deficiencies in the record preclude review.

While the Statement of Facts in appellant’s brief recites that the attorneys for both parties met in chambers, that the motion in limine was heard by the trial court and the motion denied at that time, there is nothing in the record, nor consequently in appellant’s appendix, to show that the motion was ever ruled on. There is no written order showing denial of the motion nor is there any record of proceedings in chambers where, appellant contends, the motion was denied.

We have held many times that the burden of obtaining a ruling is on the movant and objections and questions left unresolved are waived and may not be relied upon on appeal. Richardson v. State, 292 Ark. 140, 728 S.W.2d 510 (1987); Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987); Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). By appellant’s failure to include any record of a ruling, we are faced with essentially the same situation on review.

We have no way of determining from the record that the trial court did in fact make a ruling, nor, assuming one was made, the nature or extent of the ruling. It may be that the trial court reserved a ruling until the evidence was more fully developed and that the issue was left unresolved. It may be that depending on the ruling, appellant waived any objection on appeal, because it was he who elicited proof of the convictions during his case in chief. The point is that with no record of a ruling we can only speculate as to whether a ruling was made and what the particulars of the ruling may have been. Obviously, for an accurate and fair review of the question, that information is critical.

Beyond that, there is the matter of the integrity of the trial court’s judgment. In City of Monticello v. Kimbro, 206 Ark. 503, 176 S.W.2d 152(1943), we noted the underlying rationale for the rule that an objection is waived when the order objected to is not included in the record:

When the order of the circuit court. . . does not appear in the record, then, for the Supreme Court to assume the order was made. . . is in effect, to allow the record of the circuit court to be impeached on appeal, and is a refusal to import validity to the circuit court judgment. This is the fundamental reason for such holdings.

As there is no order or ruling before this court which is the basis for the point argued, there is nothing before us on which to rule. As there are no other errors complained of, the judgment is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I am reluctant to dissent because this same mistake in trial procedure has been pointed out in many earlier previous opinions of this court. See Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987); Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987); Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986); Collier v. Hot Springs S & L Assn., 272 Ark 162, 612 S.W.2d 730 (1981); Gallman v. Carnes, 254 Ark. 987, 497 S.W.2d 47 (1973); and Flake v. Thompson, 249 Ark. 713, 460 S.W.2d 789 (1970). Even so, I must register a protest in the present case because it is evident that the trial court overruled the motion in limine concerning the criminal conviction of the appellant and his passenger.

Although trial attorneys have a duty to see that the record is preserved for appellate purposes, it is the responsibility of the trial judge to insure that a complete record is maintained.

Obviously, the appellant’s counsel would not have introduced the very evidence he sought to exclude had the court not overruled his motion. In the appellant’s statement of the case in his brief he asserts: “The trial court heard the arguments of counsel in chambers prior to the testimony of these witnesses and overruled the plaintiffs motion in limine.” This assertion has not been refuted. The appellee’s only comment on the subject is that the record does not reflect a ruling by the court.

I would not dissent in this case were I not totally convinced that an injustice has been done and that there will be no other opportunity to correct it. The prior convictions, for the most part, did not involve dishonesty. Moreover, one of the convictions and subsequent release from prison occurred more than fifteen years before the trial of the present case.

Even if the prior criminal convictions in this case had been rendered recently, their prejudicial effect obviously far outweighed any probative value and should have been excluded pursuant to A.R.E. Rule 609(a), which states:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.

The weighing of probative value against prejudicial effect must be done on a case by case basis. Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983). In the present case, it does not appear that the question relating to some of the prior convictions would have been used for impeachment purposes but instead to inflame the prejudices of the jury. I see no revelant connection between a battery conviction for a shooting in a pool hall and a liability determination for an unrelated automobile accident occurring several years later.

No character witnesses were involved in this case nor was the proceeding a criminal one. When the issue of prior convictions is raised, the judge has a duty to see that he is informed of the relevancy before the evidence is admitted. Hawksley v. State, 276 Ark. 504, 637 S.W.2d 573 (1982). There is no such finding in this case.

The purpose of allowing evidence of prior convictions is, in the first place, to test the credibility of the witness — not to bolster the case against him. McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984). I realize that the majority opinion does not hold that evidence of all the prior convictions was relevant and proper. However, the effect of the opinion is the same as if we were holding that the trial court properly allowed all questions on all convictions. I am convinced that the prejudicial effect outweighed the probative value of this evidence and that the trial court erroneously allowed the highly prejudicial evidence to be presented to the jury.

I would reverse and remand.

       The convictions included burglary and shooting a police officer.


author: David Newbern, Justice.

text:
    AFFILIATED FOOD STORES, INC. v. FARMERS AND MERCHANTS BANK of Des Arc, Arkansas
    89-212
    780 S.W.2d 20
    Supreme Court of Arkansas
    Opinion delivered November 20, 1989

      David E. Smith, for appellant.

      Robert M. Abney, P.A., for appellee.
   David Newbern, Justice.

In this appeal we must decide which of two parties was first to perfect its security interest in the inventory of a grocery store and is thus entitled to the proceeds of the sale of the inventory to satisfy a debt. Our holding is that the creditor which was the first to file with the office of the secretary of state prevails.

On November 1, 1986, Bill Rogers sold a grocery store named “Scotty’s Affiliated Foods” to Bob Davis d/b/a Bob’s Supermarkets of Arkansas, Inc., (Bob’s). Davis changed the store’s name to “Bob’s Thriftway.” Rogers paid off his account with the appellant, Affiliated Food Stores, Inc., (Affiliated), the company which had supplied the store’s inventory. On November 3,1986, Davis signed a security agreement with Affiliated giving it a security interest in the new inventory he then purchased for the store. On November 4,1986, Davis signed an agreement with the appellee, Farmers and Merchants Bank of Des Arc, Arkansas, giving the bank a security interest in the inventory of the store. The agreement showed the name of the borrower to be Bob’s Supermarkets of Arkansas, with a Little Rock address. The bank had loaned Davis $62,083.64, including its finance charge, as purchase money to assist Davis in purchasing the store. On November 7,1986, Affiliated supplied inventory to the store, thus giving value in accordance with its agreement with Davis.

On November 7,1986, the bank filed its financing statement and security agreement with the Prairie County Circuit Clerk. On November 18, 1986, Affiliated filed its financing statement with the Prairie County Circuit Clerk. On November 19, 1986, Affiliated filed its financing statement with the secretary of state’s office. On November 25,1986, the Bank filed with the secretary of state’s office.

Thereafter, Bob’s became insolvent, and the parties caused the inventory to be sold. Money from the sale of the inventory, in the amount of $44,748.00, was deposited in the registry of the court. The underlying action was brought by the bank for replevin and to have a receiver appointed. Because the bank received credit for the sale of other items in which the bank held a secured interest, the bank’s maximum claim against the fund resulting from the sale of inventory was reduced to $26,688.49. Affiliated was, by agreement of the parties, paid $18,059.51 from the fund. The $26,668.59 remaining in the registry of the court was the object of the competing security interests.

In his order, the trial court held that the bank was entitled to the money. The court noted that priority was to be determined by the “first to file” provision of Ark. Code Ann. § 4-9-312(5) and (6) (Supp. 1989). The court recognized that perfection of a security interest in inventory, Ark. Code Ann. § 4-9-401 (l)(c) (1987), requires filing with the office of the secretary of state and provides for local (county) filing if the debtor does business in only one county. Although it was found that Bob’s operated stores in more than one county, the court held that the local filing with the Prairie County Circuit Clerk was sufficient because, “this store (Scotty’s) was operated as a separate entity, had been assigned a separate account number, and was billed separately by Affiliated Foods.” The bank thus prevailed because it had been the first to file in the county where the store was located.

1. The filing requirement

The subject of section 4-9-401 is “ [t] he proper place to file in order to perfect a security interest. . . .” Subsections (a) and (b) deal with security interests in specific items such as farm equipment, farm products, timber, and minerals. Subsection (c) provides, in relevant part:

In all other cases, in the office of the Secretary of State and in addition, if the debtor has a place of business in only one county of this state, also in the office of the clerk of the circuit court and ex officio recorder of such county. . . . [Emphasis supplied.]

The bank’s filing with the circuit clerk on November 7, 1986, would have perfected its security interest only if it had also filed with the secretary of state and if Bob’s had been doing business only in Prairie County.

We find no authority in support of the trial court’s apparent conclusion that, because Affiliated kept separate billing records for Scotty’s or Bob’s Thriftway, that Bob’s could be considered to be doing business only in Prairie County. Even if that conclusion were supportable, the bank would not have been entitled to priority on the basis of a first filing. It had not complied with the first requirement of filing with the office of secretary of state until November 25, 1986, which was after Affiliated had filed with both the office of the secretary of state and the Prairie County Circuit Clerk. Although the first filing was by the bank, the bank was not the first to file correctly which, in these circumstances, is required in order for it to have priority over Affiliated, which was the first to file correctly. B. Clark, The Law of Secured Transactions § 3.8 [1] (Cumm. Supp. No. 3, 1987). See also J. White and R. Summers, Uniform Commercial Code, § 25-4 (2nd ed. 1980).

If the bank is to prevail, it must be on a basis other than its contention that it filed correctly and filed first.

2. Knowledge and good faith

The bank argues that, due to its first filing with the circuit clerk, Affiliated had knowledge of its security interest in the inventory and thus the filing with the circuit clerk was sufficient, citing In re Davidoff, 351 F. Supp. 440 (S.D.N.Y. 1972). In that case, in which New York law was applied, it was held that a creditor who had actual knowledge of a prior security interest could not defeat the prior interest on the basis that the prior interest was filed improperly. In the case now before us there is no evidence that Affiliated had actual knowledge of the bank’s interest.

Nor do we agree that Ark. Code Ann. § 4-9-401(2) (1987) supports the bank’s argument that its incorrect filing prevails because it was made in good faith against a person “who has knowledge of the contents of such financing statement.” In the parlance of the Uniform Commercial Code, “knowledge of the contents” means actual rather than constructive knowledge. First State Bank v. United Dollar Stores, 571 P.2d 444 (Okla. 1977); J. White and R. Summers, supra; § 23-15, B. Clark., The Law of Secured Transactions Under the Uniform Commercial Code § 3.8[ 1 ] (1980).

3. Temporary perfection

The bank contends it is protected by Ark. Code Ann. § 4-9-304(5) (1987). That section does give a creditor a 21-day grace period without filing under certain circumstances, but it applies only to “a secured party having a perfected security interest in an instrument (other than a certificated security), a negotiable document, or goods in possession of a bailee other than one who has issued a negotiable document therefore.” It is thus inapplicable in this case.

There is another section, 4-9-312(4), providing a similar 21-day grace period, but by its terms it applies to “[a] purchase money security in collateral other than inventory.”

Conclusion

The authorities we have cited, {see particularly B. Clark, supra, § 3.8 [1]), make it clear that in the circumstances presented here priority as between two secured interests depends on the outcome of the race to file correctly. Affiliated was the first to file correctly. The case is reversed and remanded for orders consistent with this opinion.


author: David Newbern, Justice. Steele Hays, Justice, Tom Glaze, Justice,

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. William H. JOHNSON, et al.
    89-236
    780 S.W.2d 326
    Supreme Court of Arkansas
    Opinion delivered November 20, 1989
    [Rehearing denied December 18, 1989.]

      Robert L. Wilson, Philip N. Gowen, and Charles Johnson, for appellant.

      Sloan, Rubens, Peoples & Coleman, by: Kent J. Rubens; Friday, Eldredge & Clark, by: Robert V. Light, for appellees.

      Glaze, J., would grant rehearing.

   David Newbern, Justice.

This is an appeal by the Arkansas State Highway Commission of a judgment awarding $600,000 to William H. Johnson and other landowners whose property was condemned by the commission to construct a highway interchange. The landowners cross-appeal the trial court’s refusal to award attorneys’ fees. The commission contends the court erred in permitting the landowners to introduce the testimony of Mr. Sanson, who was not called as a witness by the commission, that he had been hired by the commission to make an appraisal of the land taken and appraised it at $233,600. We agree it was improper to allow Sanson to testify that he formed his opinion at the request of the commission, and thus the decision must be reversed. Because we reverse on this point, we need not address the commission’s argument that a court of appeals decision in an earlier appeal of this case is law of the case. We disagree with the commission’s second argument that evidence of the amount it determined to be just compensation for the land taken was erroneously admitted. We address that issue in order to guide the trial court upon retrial, and we conclude the evidence was relevant and admissible.

The landowners contend in their cross-appeal that Ark. Const., art. 2, § 22, requires that they be awarded their attorneys’ fees because they are to be “made whole.” We do not interpret the Constitution as creating a right to attorneys’ fees, and thus we affirm on cross-appeal.

At the conclusion of the first trial of this case, the jury returned a verdict awarding nothing to the landowners. Judgment was entered awarding the commission $233,600 which had been deposited by the commission with the court, and disbursed to the landowners, as the amount the commission determined to be the value of the land at the time of the taking. The landowners had sought additional damages, which they claimed had been caused by the taking, for injury to surrounding remaining land owned by them. In response, the commission had contended that the remaining land was enhanced by the taking.

The landowners sought to introduce evidence that two commission appraisers had concluded that there was neither injury to nor enhancement of the value of the surrounding land. They also sought, by a motion in limine, to exclude evidence of subsequent sales of the remaining land. The trial court denied the motion in limine and refused to allow the landowners to present evidence of commission appraisers’ answers to interrogatories. The landowners’ motion for new trial was granted because the judge concluded he had erred in making these evidentiary rulings and in not holding a sufficiently detailed hearing. The order granting a new trial was affirmed by the court of appeals, and the case was retried, resulting in this appeal.

1. Sanson’s testimony

Jimmy Sanson is a reviewing appraiser, but at the time of the trial he was a staff appraiser, employed by the commission. He appraised the land to be taken as being worth $233,600. The commission did not call Sanson as a witness but presented the testimony of other appraisers who testified the landowners were not damaged by the taking because of enhancement, caused by the taking, of the value of their remaining lands. There is no doubt, and it is not argued, that a witness such as Sanson can be called to give his opinion by the party who did not originally procure the witness’s opinion. The issue here is whether it was error to permit Sanson to reveal that his opinion was originally procured by the commission which chose not to present him as a witness.

In Arkansas State Highway Commission v. Phillips, 252 Ark. 206, 478 S.W.2d 27 (1972), this court held, with three justices dissenting, that a landowner was permitted to call as a witness a staff appraiser hired by the commission and identified as such to give an opinion, although he was not called as a witness by the commission. In Arkansas State Highway Commission v. Witkowski, 257 Ark. 659, 519 S.W.2d 743 (1975), it was held the trial court did not err in following the Phillips case but that the issue had been decided by a divided court and would be reconsidered. The opinion noted that a majority of jurisdictions would not agree with the Phillips decision.

In Arkansas State Highway Commission v. First Pyramid Life Ins. Co.of America, 265 Ark. 417, 579 S.W.2d 587 (1979), the Phillips case was, although not mentioned by name, effectively overruled. It was held, citing the language of the Witkowski decision and the cases cited there, that it was prejudicial error to allow a party to introduce into evidence the original employment of an expert witness over the objection of the party who originally employed the expert. While the only reason given in the First Pyramid decision was that the original employment of the expert was not “pertinent” to the issue of valuation, the other reasons can be found in Justice George Rose Smith’s dissenting opinion in the Phillips case. Justice Smith’s opinion began as follows:

I would reverse this judgment. In simple fairness a party ought not to be permitted to show, as the appellees did in the trial court, that his adversary has failed to call as a witness an expert whom his adversary employed merely for the purpose of obtaining an opinion. If such testimony has any effect at all, other than its intended purpose to arouse an attitude of passion and prejudice in the jury room, that effect is completely outweighed by the reasons of policy for not admitting such proof and by the weight of authority elsewhere.

The opinion then pointed out, (1) that such testimony is of no direct benefit to the jury in reaching its decision, (2) that there, as here, there was no reason to suspect wrongdoing by the commission, (3) it is unfair to put the commission in the position of having to explain its action in not calling the witness, and (4) the better reasoned cases do not permit it.

The landowners argue that the Witkowski and First Pyramid cases are distinguishable or should be reexamined and overruled. With respect to the argument that the cases are distinguishable, no arguments are made, but the landowners refer to the fact that the trial judge distinguished them. Looking to the trial court’s order we find his distinction to have been on the basis that “the appraisals” of the commission were used in this case in making representations to third parties, primarily the federal government in obtaining federal funding for the highway project, and that was not so in the Witkowski and First Pyramid cases.

It was not “the appraisals” that were used to get federal money for the project. It was, rather, the commission’s “statement of just compensation” which is required by the federal guidelines stated in the Uniform Relocation Assistance and Real Property Acquisition Act of 1970,42 U.S.C.A. §§ 4651 through 4655. The statement of “just compensation” required by § 4651 to be made by the condemning authority to the landowner is clearly a conclusion reached by the agency which shall be no less than “the agency’s approved appraisal of the fair market value of such property.” The two are obviously separate. The conclusory statement of “just compensation” is like the statement of “just compensation” Ark. Code Ann. § 27-67-312 (1987) requires to be annexed to a declaration of taking made by a condemning authority.

Mr. Sanson’s appraisal was in the amount of $233,600. That was also the amount stated in the statement of just compensation in this case. The fact that the amount of Sanson’s appraisal is the same as the amount of the just compensation statement makes it somewhat difficult in this case to perceive that the two are separate, but they are. Sanson testified that the commission’s procedure in establishing the amount of just compensation for land to be taken begins with an appraisal, such as the one he made, by a staff appraiser. That appraisal is then reviewed by a reviewing appraiser. If the reviewing appraiser agrees with the staff appraiser’s appraisal, “as of that point, it becomes the official position of the Arkansas Highway Department that this is the amount of just compensation that the property owners are entitled to.”

The record includes a deposition by Paul Broyles, Chief of the Right-of-Way Division, Arkansas Highway Department. Mr. Broyles stated the procedure used by the department and noted that an appraisal by a staff appraiser would not necessarily become the department’s determination of just compensation to be used for negotiations with the landowner or in obtaining federal funding. It first must be approved by the reviewing appraiser, after which it “would normally be sent to the Acquisition Section and utilized in negotiations with the landowner and in application for federal funds. . . .”

While the issue of the admissibility of the statement of just compensation which we address in the next segment of this opinion was not raised in the Witkowski and First Pyramid cases, the issue of the admissibility of the original employment of the appraiser was, and it is the same issue raised here. With respect to that issue, we cannot distinguish those cases from this one.

In asking us to reconsider the Witkowski and First Pyramid cases the landowners cite Levitsky v. Prince George’s County, 50 Md. App. 484, 439 A.2d 600 (1982) and Barton v. Board of Education, 617 P.2d 347 (Utah 1982), both of which are clearly contrary to our cases. The Levitsky case recognizes the split of authority on the question of revealing the expert’s original employment and notes that the Maryland Court of Appeals has chosen the approach of leaving the matter within the trial court’s discretion. The opinion in the Barton case does no more than recite the argument made by the majority of this court in the Phillips case and by the dissenters in the Witkowski case. Neither of them presents anything which would cause us to reconsider the issue which was resolved in the First Pyramid decision.

Also cited is Cronk v. State, 420 N.Y.S. 113 (1979), apparently the opinion of a trial judge of the New York Court of Claims, for the proposition that an unfiled appraisal obtained by the condemning authority in excess of that upon which it relied at trial was admissible as an “admission against interest.” That rationale is one which was not discussed in the First Pyramid opinion or in the Phillips and Witkowski cases. The opinion in the Cronk case points out that the higher appraisal had been used by the condemning authority in representations to the federal government, although the amount sought by the state agency from the federal government was argued to have been less than the amount suggested in the appraisal.

We find the Cronk case to be distinguishable from this one. There is no evidence that Mr. Sanson’s appraisal was used by the commission in representations to third parties. As explained above, it was, rather, the commission’s determination of just compensation which was so used. Again, we see a difference between the appraisal and the commission’s conclusion based upon it.

As the amount of Sanson’s appraisal and the amount the • commission concluded to be just compensation to the landowners were the same, we must consider whether any prejudice resulted from the error committed in letting the jury know of Sanson’s original employment. In closing argument, the landowners’ counsel stated:

Let me say this about Mr. Sanson: You notice that while he was the appraiser that made the original appraisal, established just compensation, did it in conformity — as he testified to you — with Federal and State law what he had to do, following the requirements of the law — had that reviewed by the reviewing appraiser with the Department, who agreed with him, and signed off on it and established that as the Department’s official estimate of just compensation that these people were due as a result of the taking of their twelve acres and who called Mr. Sanson. You notice Mr. Gowen [counsel for the commission] didn’t call him, and he’s an employee out there with Mr. Gowen at the Highway Department — had been for years — he’s been there fifteen years. We’re the ones that called him. Mr. Gowen could have if he was shooting straight with you. He could have put Sanson on the stand, and Sanson could have explained to you how he made the original appraisal and then how after this suit got going he decided to change his mind on it.
Ladies and gentlemen, I submit to you that you have seen a case here where the Highway Commission has played fast and loose with the rights of these citizens in making appraisals and then suppressing it, of going out and getting another appraiser at some considerable expense to tell you folks that the Highway Department could take those twelve acres out there and not pay a dime for them. That’s what they’re trying to do and it’s not right — it’s not fair.

Clearly, full advantage was taken of the evidence of Jimmy Sanson’s original employment. When the argument of counsel is considered along with the fact that the jury in the first trial, at which the evidence in question here was excluded, awarded the landowners nothing and the fact that this jury awarded $600,000, we cannot say the error was not prejudicial.

2. Evidence of just compensation

In United States v. 320.0 Acres of Land, 605 F.2d 762 (5th Cir. 1979), the condemning authority, following the guidelines found in 42 U.S.C.A. § 4651, provided the landowners a statement of just compensation. At trial, the condemning authority presented evidence of lesser values and argued that Fed. R. Evid. 408 precluded introduction by the landowners of the statement of just compensation because it was a figure used in settlement negotiations. The court of appeals held that the statement of just compensation was an admission. It was proper evidence because, rather than being a negotiation figure, it was a statement of the amount the government believed the landowner was constitutionally entitled to if negotiations should fail.

Both § 4651 and Ark. Code Ann. § 27-67-312 (1987) require estimates of just compensation. The Arkansas statute requires that such an estimate be annexed to the declaration of taking of property for public highway purposes. We agree with the conclusion that the statement of just compensation is not a negotiation or settlement figure excluded by A.R.E. 408. The rationale of the 320.00 Acres of Land case has been followed in courts of other states, see, e.g., Thomas v. State, 410 So.2d 3 (Ala. 1982); Cook v. State, 430 N.Y.S.2d 507 (1980).

In its argument that the statement of just compensation may not be introduced, the commission cites Arkansas State Highway Commissions. Taylor, 269 Ark. 458, 602 S.W.2d 657 (1980), in which it was held that the amount deposited with the court by the commission, representing the commission’s determination of the value of the land at the time of taking, was properly introduced by the landowner because it had already been mentioned by counsel for the commission in his opening statement. The opinion states, however, that “ordinarily evidence of the amount deposited by a condemnor as estimated just compensation is not admissible in evidence. The amount is only tentative and the amount ultimately fixed may be more or less than the deposit,” citing 6A Nichols on Eminent Domain, p. 27-55, § 27.25[1] (1979). While we find no support for the statement in the cited paragraph in the treatise, we do find it in Chief Justice Harris’s dissenting opinion in Arkansas State Highway Commission v. Blakeley, 231 Ark. 273, 329 S.W.2d 158 (1959).

In the Blakeley case, a commission appraiser testified the landowner’s land was worth $200 less than before the taking. On cross-examination, counsel for the landowner mentioned that the commission had deposited $500 with the court and asked if the witness had not been working for the highway department when that appraisal was made. The witness answered he had not. The court’s opinion contained this obiter dictum, which was followed by our court of appeals in Arkansas Power & Light Co. v. Melkovitz, 11 Ark. App. 90, 668 S.W.2d 37 (1984): had the witness answered “yes,” counsel for the landowner could have pursued the matter in order to impeach the witness’s testimony by showing he had made a prior inconsistent statement. Chief Justice Harris’s disagreement with the latter statement was based on his conclusion that the deposit represented only a “compromise” figure or an “offer” being made by the commission for the land.

We conclude that when the commission is required by federal or state law to reach a determination of just compensation and to communicate that information to the landowner, the court, or third parties, it is by statutory definition more than an offer or compromise figure. While it is true that a jury or court may award more or less than the amount stated, that does not change the fact that such a statement constitutes an admission of the constitutional entitlement of the condemnee, and it should be admissible as evidence to rebut the condemnor’s contentions that the condemned property is worth less than the amount stated as just compensation.

3. Attorneys’ fees

The landowners argue they are entitled to recover their attorneys’ fees as a part of their compensation. They recognize that we deny such a recovery when it is sought as part of the costs of litigation in eminent domain cases, Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W.2d 58 (1944), while we permit it where there is evidence of “bad faith” on the part of the condemning authority. Des Arc Watershed Imp. Dist. v. Finch, 275 Ark. 229, 630 S.W.2d 17 (1982); Housing Authority v. Amsler, 239 Ark. 592, 393 S.W.2d 268 (1965). They argue, however, that we permitted a rate of interest in excess of the statutory rate in Arkansas State Highway Commission v. Vick, 284 Ark. 372, 682 S.W.2d 731 (1985), on the theory that otherwise the landowner would not have been “made whole.”

We have some sympathy for the argument that a landowner who is the defendant in condemnation proceedings and who did nothing to bring them on himself or herself but contests only the value of the property in question should not be required to pay for the proceedings. See Stewart & Grindle, Inc. v. State, 524 P. 2d 1242 (Alaska 1974), where the Supreme Court of Alaska interpreted its rule of court, which allows attorneys’ fees where it appears necessary to achieve a “just result,” as permitting the granting of attorneys’ fees in condemnation cases. The same could be said of many other types of proceedings, however, such as the automobile accident where the plaintiff was doing absolutely nothing wrong when struck by a negligent driver’s car.

As the landowners’ brief candidly points out, the Supreme Court of Georgia once adopted the position that a landowner was entitled to attorneys’ fees in condemnation proceedings, White v. Georgia Power Co., 227 S.E.2d 385 (Ga. 1976), only to find itself embroiled in controversy over the decision which it ultimately overruled, DeKalb City v. Trustees, 251 S.E.2d 243 (Ga. 1978), noting that the problems it faced could be avoided by a well drafted statute.

Although we agree the provisions of Ark. Const, art. 2, § 22, constitute a strong exhaltation of the right of property in this state, the right of property comes in many different forms, and we are not prepared to hold attorneys’ fees are recoverable to protect any particular one in the absence of an authorizing statute.

Reversed on appeal; affirmed on cross-appeal.

Hickman, Hays, and Glaze, JJ., dissenting in part.

Steele Hays, Justice,

dissenting. While I concur in Sections 1 and 3 of the majority opinion, I believe the majority is mistaken with respect to Section 2. It seems patently clear that our statutes establishing the procedure by which the condemning authority can take immediate possession of lands [originating in Act 115 of 1953 and now codified in Ark. Code Ann. § 27-67-312 through 319 (1987)] did not intend that the estimated compensation deposited by the condemnor be disclosed to the jury. Nothing in Act 115 even remotely implies such a reading, nor does any part of the language of 42 U.S.C. § 4651, to which the majority opinion makes general reference.

Act 115 plainly was designed to provide a method by which the condemning authority could obtain possession at the outset of a condemnation proceeding, rather than having to wait until the litigation was concluded. That method (provided by Act 115) was to deposit with the trial court an amount equal to the estimated value of the lands being taken. If the condemnor makes the required deposit, it is entitled to immediate possession. Act 115 also provided that the condemnee could protest the amount and the trial judge was empowered under the act to order an increased deposit. Decisions of this court and the Court of Appeals have held that the amount deposited pursuant to Act 115 is not admissible in the subsequent trial and those decisions are sound. In Arkansas State Highway Commission v. Taylor, 269 Ark. 458, 602 S.W.2d 657 (1980), Justice Fogleman, writing for a unanimous court stated the rule:

Appellant is correct in its argument that ordinarily evidence of the amount deposited by a condemnor as estimated just compensation is not admissible in evidence. The amount is only tentative and the amount ultimately fixed may be more or less than the deposit. 6 A Nichols on Eminent Domain, p. 27-55, § 27.25[1] (1979). [My emphasis.]

That language was quoted verbatim by the Court of Appeals in Arkansas Power & Light Co. v. Melkovitz, 11 Ark. App. 90, 668 S.W.2d 37 (1984). The qualifying adverb (“ordinarily”) appearing in the quoted passage clearly alludes to the exception to the rule, i.e., that the amount of the deposit may become admissible for impeachment purposes where an appraiser who provided the figure used in establishing the amount of the deposit testifies at trial to a lesser figure. In this case impeachment was not the basis of the admission.

Nor is a different course dictated by § 4651. The provisions of § 4651 (Section 301 of the Uniform Relocation Assistance and Real Property Acquisition Act of 1970) are expressly not mandatory even to federal agencies but are guidelines which are wholly advisory. See § 102, Public Law 91-646; United States v. 320.0 Acres of Land, 605 F.2d 762 (5th Cir. 1979), footnote 134. They are in no way binding on this court.

Arkansas State Highway Department v. Blakeley, 231 Ark. 273, 329 S.W.2d 158 (1959), is an enigma. A bare majority affirmed the modest award of $1,000, in spite of the fact that counsel for the condemnee brought before the jury that the condemnor had deposited $500 at the time of taking. The opinion is too abbreviated to permit a conclusion as to whether the majority considered the incident prejudicially de minimis, or thought that counsel for the Commission had somehow opened the door for impeachment. It is evident that the Blakeley decision does not suggest the amount of the deposit is admissible as evidence of the value of the lands taken and Justice Paul Ward, fearing that Blakeley would be so interpreted, endeavored to make that clear in a concurring opinion:

I concur because I think the majority opinion is subject to the interpretation (and it may hereafter be so cited) to hold the questioned testimony admissible in any event even on direct examination. I am inclined to the view that such testimony is not admissible except for the purpose of impeachment.

Chief Justice Harris was not willing to leave it to chance and, joined by Justice Holt, wrote a forceful dissenting opinion pointing out the fallacy of permitting the deposit to be used as evidence:

From a practical standpoint, it seems most illogical to allow such evidence. One thing is certain, if the landowner is permitted to establish the amount deposited by the Highway Commission with its Declaration of Taking, there is no need for the Highway Department to ever offer evidence that the land is of less value than the amount deposited, for, of course, the jury will consider that the Highway Department deposited the very minimum. Certainly, it is contemplated under the statute that the amount determined by the jury may be less than the amount of the deposit, for Section 76-537 provides: “If the compensation finally awarded shall be less than the amount of money so deposited and paid to the persons entitled thereto, the Court shall enter judgment in favor of the State of Arkansas and against the proper parties for the amount of the excess.” Of course, the net result is that the Highway Department, instead of depositing a fair and just sum, will be forced to deposit as small an amount as possible, and the court will frequently be called upon to determine the proper sum for deposit. When this happens, I am of the view that the size of the deposit can be kept from the jury, for this figure fixed by the Court would have the effect of pitting the trial judge’s opinion against the condemner’s evidence, and would therefore amount to a comment upon the weight of the evidence, which is forbidden under Arkansas practice.

The same concerns expressed in Chief Justice Harris’s dissenting opinion were well stated by the Circuit Court of Appeal for the Fourth Circuit in Washington Metropolitan Area Transit Authority v. One Parcel of Land in Montgomery County, Maryland, 548 F.2d 1130 (1977):

The purpose of a pre-condemnation offer under [§ 4651 ] is to expedite acquisition and avoid litigation. The Act says that the offer must not be less than reasonable market value. If the offer is to serve its purpose, it must include something more than reasonable market value for usually the seller is not a willing one and the offer’s purpose is the avoidance of delay and the expense of the condemnation proceedings. To permit the offer to be received in evidence in effect would put a floor on recoveries in condemnation proceedings. No amount of explanation would prevent the jury from giving the landowner at least that much. There would be less incentive to accept the offer, and the purpose of the Act would be frustrated.

I find no authority cited in the majority opinion which requires that we forswear our own precedents and on remand I would exclude evidence of the amount deposited by the appellant.

Tom Glaze, Justice,

dissenting in part. The majority relies on Arkansas State Highway Commission v. First Pyramid Life Ins. Co. of America, 265 Ark. 417, 579 S.W.2d 587 (1979) (First Pyramid), wherein this court held that neither party to a condemnation case is bound by rejected opinions of expert witnesses employed by them to appraise property being condemned and cannot be prejudiced by the admission in evidence of rejected appraisals made at their instance. The court reasoned that the testimony of such experts is “not pertinent to the issue of just compensation.” Such reasoning, especially in cases like the one before us now, makes absolutely no sense.

Here, the Highway Commission’s original expert, Mr. Sanson, appraised the land in question as being worth $233,600. The Commission heavily relied upon Sanson’s appraisal by commencing this condemnation suit and depositing $233,600 as estimated just compensation into the court registry. The state’s depositing of this amount is one of five requirements the state must meet before it has the right to enter and take possession of the properties of the condemnees-landowners. See Ark. Code Ann. §§ 27-67-312 and -314 (1987). The significance of such a deposit is emphasized by the fact that title to the land vests in the Commission when it makes the deposit with the court. Ark. Code Ann. § 27-67-315 (1987); see also Ark. Code Ann. § 27-67-319 (1987). In view of Arkansas’s statutory condemnation procedure, it appears obvious the deposit amount made by the state is relevant when determining all facets of the taking of a landowner’s property. If the Highway Commission had rejected Sanson’s appraisal rather than relying upon it when taking the appellees’ lands, I could argue that such an appraisal was not relevant — or “pertinent” as this court said in First Pyramid. However, when the Commission accepted and relied upon San-son’s appraisal when taking appellees’ lands, I fail to understand how this court can ignore the value given the condemned lands by Sanson.

The Highway Commission’s reliance on Sanson’s appraisal was even greater in the present case than in most. Here, the Commission condemned appellees’ lands in connection with a project that would allow it to obtain 90% in federal funds to underwrite the cost of acquisition of the right-of-way. Federal law, the Uniform Relocation Assistance and Real Property Act of 1970 (42 U.S.C. § 4651, et al.), required the Commission in this case to give the condemned (landowners) a statement of just compensation. The Commission complied with this federal requirement and in doing so, based its statement of just compensation upon Sanson’s appraisal of damages to be $233,600 — the same appraisal and amount the Commission first used in commencing this suit and taking the appellees’ lands.

In conclusion, the majority court attempts to shore up the faulty reasoning in First Pyramid by citing Justice George Rose Smith’s dissent in Arkansas Highway Comm’n v. Phillips, 252 Ark. 206, 478 S.W.2d 27 (1972). The most that I can discern from Justice Smith’s dissent is that some policy reason should be adopted to exclude expert opinion testimony like that which is in issue in condemnation cases here. Justice Smith adds that such opinion evidence should not be admissible when there is no reason to suspect any wrongdoing on the part of the Commission. In my view, these arguments are simply unconvincing. The Commission thoroughly relied on Sanson’s appraisal when it satisfied their purposes in applying for federal funds and taking the appellees’ lands, and I believe the appellees are thoroughly justified in relying on that same evidence to show just compensation for the land. While I do not believe this court necessarily needs to overrule its decision in First Pyramid in order to affirm this case, I would have no reluctance to do so. The Phillips case, overruled by First Pyramid, certainly supported the admissibility of such expert appraisal and I have no hesitancy in returning to that view.

For the reasons above, I would affirm.

Hickman, J., joins this dissent.

       The cited treatise reads: “Because the amount deposited is only tentative and may be increased or diminished by the final judgment. . .[.]”


author: Tom Glaze, Justice.

text:
    Roy Don BURNS v. STATE of Arkansas
    CR 89-128
    780 S.W.2d 23
    Supreme Court of Arkansas
    Opinion delivered November 20, 1989

      William R. Simpson, Jr., Public Defender, by; Thomas B.

      Divine III, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant appeals his convictions of rape, aggravated robbery, kidnapping, and theft. We accept jurisdiction under Ark. Sup. Ct. R. 29(l)(b) because appellant received a combined sentence of life plus seventy-five years. He raises two issues, arguing first that the trial court erred by denying his motion for continuance and second that the court erred by denying him an instruction for a lesser included offense. We summarily dispose of appellant’s second point because he failed at trial to proffer an instruction, setting out the lesser included offense to which he now says he is entitled. See Murphy v. State, 248 Ark. 797, 454 S.W.2d 302 (1970); Green v. State, 7 Ark. App. 175, 646 S.W.2d 20 (1983). Upon considering appellant’s remaining point on its merits, we hold the trial court was correct in denying appellant’s continuance motion, and therefore affirm.

Appellant’s request for a continuance arose immediately following the court’s denial of his earlier motion for the court to appoint him new counsel. Appellant was indigent, and at arraignment on January 11, 1989, the court appointed the Public Defender’s officer to represent the appellant. At that same hearing, appellant pled not guilty, and the court set a bond of $100,000. Appellant’s appointed counsel filed a number of motions, and those matters were considered by the trial court at pre-trial hearings on March 20 and March 31, 1989. The trial was held on April 3.

At the Friday, March 31 hearing, the appellant asked the trial judge for a new attorney because appellant did not feel he was being properly represented. Appellant gave the following reasons for his motion: (1) He had asked his attorney for a copy of appellant’s case file and it took his attorney one week to get it to the appellant; (2) the attorney had a negative attitude about appellant’s case, and he tried to get the appellant to plea bargain; (3) his attorney would not request a new bond hearing unless appellant showed him $20,000 in cash; and (4) the appellant and counsel did not get along. After the court denied appellant another attorney, appellant moved for a continuance, so he would have time to prepare his case. He explained that his access to the prison’s law library had been limited to one thirty-minute period per week. The trial court denied the appellant a continuance and then asked the appellant if he intended to represent himself. Appellant answered that he would if he could not get another attorney.

We have held that the right to counsel of one’s choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient and effective administration of justice. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). Once competent counsel is obtained, the request for a change in counsel must be considered in the context of the public’s interest in the prompt dispensation of justice. Id.; Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986). A defendant’s refusal without good cause to proceed with able appointed counsel constitutes a voluntary waiver of his sixth amendment right. U.S. v. Gallop, 838 F.2d 105 (4th Cir. 1988); Carey v. State of Minn., 767 F.2d 440 (8th Cir. 1985); Richardson v. Lucas, 741 F.2d 753 (5th Cir. 1984).

Here, the record reveals appellant’s appointed counsel was acting diligently and competently in appellant’s behalf. Upon his appointment, counsel filed numerous motions and aggressively pursued those matters at the three pre-trial hearings. Counsel spent approximately eighty hours on appellant’s case and was ready to proceed with the scheduled trial on April 3, 1989. The record further reveals counsel conducted extensive cross-examination at the suppression hearing on March 20, and appellant offered no criticism of counsel until the final hearing held three days before trial.

In considering the nature of the complaints the appellant voiced about his attorney, none of them bear adversely on the attorney’s competence or his ability to represent appellant. The case file information appellant requested was forthcoming and the one-week delay in receiving it reflects no prejudice to the presentation of appellant’s case at trial. Regarding the attorney’s condition that appellant obtain $20,000 in cash before counsel would request another bond hearing, such a condition merely reflects the realities of the circumstances. Appellant was indigent, and the court had already set bond at $100,000 with no indication that a lower one would be set most likely because of the seriousness of the charges against the appellant. Finally, neither the appellant’s general complaint that he and his attorney did not get along nor counsel’s recommendation that appellant accept the state’s negotiated plea offer are good causes to discharge appointed counsel. In Morris v. Slappy, 461 U.S. 1 (1982), the Court made it clear that the sixth amendment does not guarantee that an appointed attorney establish an exemplary rapport with the accused, nor does it guarantee an accused a “meaningful attorney-client relationship.” Here, counsel gave appellant frank advice when considering the state’s charges against him and the overwhelming evidence as to the appellant’s guilt. In fact, counsel’s recommendation was shown to be realistic and practical in view of the sentence finally imposed in this matter. If appellant had accepted the state’s earlier offer, appellant’s punishment would have been less.

We note at this point that appellant seems to rely on the court of appeals’ earlier decision in Parker v. State, 18 Ark. App. 252, 715 S.W.2d 210 (1986). He argues that the reasons he argues here for discharging counsel are the same as those raised by the defendant in Parker, because the appellate court found such reasons sufficient in Parker, appellant argues we should do likewise. While we acknowledge some similarity between the arguments made in this case and Parker, we overrule Parker to the extent that our decision and rationale conflicts with Parker.

In conclusion, we would add that, in making his decision to represent himself, the trial court made appellant well aware of the dangers and disadvantages of self-representation. See Faretta v. California, 422 U.S. 806 (1975); see also Berry v. Lockhart, 873 F.2d 1168 (8th Cir. 1989). The trial court continually encouraged appellant to use his appointed counsel, pointing out that the attorney was trained to go to court, while appellant was not. The court warned appellant that he would have to follow the court’s rules and procedures and could not make speeches. In the preliminary proceedings, appellant was made aware of the nature and seriousness of the charges against him and the penalties that could be imposed. Appellant had previously been convicted of larceny and sodomy charges in Oklahoma, so he was no newcomer to the judicial system. In sum, the record reflects that the appellant knowingly and intelligently decided to proceed pro se, but even so, the court required appointed counsel to stand by and to assist when the circumstances dictated counsel’s services.

For the reasons given above, we affirm.

        See 2 W. LaFave & J. Israel, Criminal Procedure § 11.4(b) (1984) for an excellent discussion regarding replacement of appointed counsel and what has and has not been recognized as good cause for discharging current counsel and appointing new counsel.

       Appointed counsel aided appellant in selecting the jury, arguing to the jury, performing some of the examination at trial, and in interposing objections, including making a directed verdict motion.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    Mary Helen Bass GOODWIN and William Carl Goodwin, Jr. v. William HARRISON
    89-76
    780 S.W.2d 518
    Supreme Court of Arkansas
    Opinion delivered November 27, 1989
    [Rehearing denied January 8, 1990. ]

      Whetstone & Whetstone, by: Bernard Whetstone and Bob Davidson, for appellant.

      Friday, Eldredge & Clark, by: Phillip Malcom, H. Charles Gschwend, Jr., and Guy Alton Wade, for appellee.

      Newbern and Turner, JJ., not participating.

   Robert H. Dudley, Justice.

The appellant, Mary Bass Goodwin, filed this medical malpractice suit against appellee, William Harrison, an obstetrician and gynecologist. She joined Ortho Pharmaceutical Corporation as a defendant. She settled her claim against Ortho and went to trial only against appellee. She contended that (1) he prescribed birth control pills for her without informing her of the risks involved, and (2) that he failed, upon a second visit, to diagnose the fact that the pills had caused her to suffer a blood clot. The jury found in favor of the appellee. The appellant raises eleven (11) points of appeal, which contain numerous additional subpoints. We find no reversible error and, accordingly, affirm.

Appellant initially filed her suit in Lafayette County. Appellee filed a motion alleging venue did not lie in Lafayette County. The trial judge granted the motion and ordered the case transferred to either Washington County or Sebastian County, with appellant being given the choice of counties. She chose Sebastian County, and the appellee did not object. The case was then tried in Sebastian County with the result being a defendant’s verdict. Appellant’s first assignment of error is the ruling that venue did not lie in Lafayette County.

Before entering the University of Arkansas, appellant lived for nine years with her mother in Lewisville, which is in Lafayette County. After entering the University, she returned to Lafayette County each summer and at Christmas. She maintained her voter registration, post-office box, bank account, and church membership in Lafayette County. After her junior year in college, in May of 1982, she returned to Lafayette County and lived with her mother from May until July, when she got married.

In 1979, she matriculated to the University and lived in Fayetteville, which is in Washington County. In 1982, her junior year, she lived in a sorority house, attended classes, and did all the other every-day things in Fayetteville that any resident student does. She was engaged to be married, and on March 31, 1982, went to appellee for the purpose of discussing and obtaining some form of birth control. During that visit, appellee prescribed birth control pills for her. Soon thereafter she began to take them without any apparent difficulty.

After appellant married in mid-July, she moved to Fort Smith, Sebastian County, to live with her husband. She soon began to have headaches related to sensitivity to sunlight.

On August 27, 1982, the appellant returned to appellee’s office in Washington County and complained about pain in her pelvic region during intercourse. She did not mention the headaches. A little over two weeks later she went to the emergency room of a hospital in Fort Smith, Sebastian County, and was found to have a blood clot in her left leg. Ultimately, she had a tubal ligation because of the risks of pregnancy in her condition. She filed suit in Lafayette County against appellee, alleging that on March 31,1982, appellee prescribed birth control pills to her without obtaining her informed consent, and on August 27,1982, negligently failed to diagnose her blood clot. In summary, on March 31, the date of the alleged negligent prescription, appellant was a domiciliary of Lafayette County and a resident of Washington County, and on August 27, the date of the alleged negligent treatment, she was both a domiciliary and resident of Sebastian County. The issue is whether venue lay in Lafayette County.

An action for damages for personal injury shall be brought in either (1) the county where the accident occurred which caused the injury, or (2) the county where the plaintiff “resided” at the time of the accident which caused the injury. Ark. Code Ann. § 16-60-112(a) (1987). It is the latter which is the subject of this point of appeal. The appellee did not contest venue lying in Sebastian County. Thus, the issue becomes whether the appellant “resided” in Lafayette County at the time of the accident which caused her injury.

The accident which caused the injury means the alleged wrongful conduct of the doctor. See Heller v. Williams, 204 Ark. 72, 160 S.W.2d 883 (1942), involving the predecessor venue act, and see Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988). The initial alleged wrongful conduct occurred on March 31 when appellant was a domiciliary of Lafayette County and a resident of Washington County.

One of the earliest and most frequently cited cases construing our present venue statute, which was enacted in 1939, is Norton v. Purkins, 203 Ark. 586, 157 S.W.2d 765 (1942). In that case the plaintiff worked in Ouachita County over a period of years. He and his wife rented a house there, and their child went to school there. However, they owned a house in Cleveland County and intended to return there. In holding that Ouachita County was the plaintiffs residence, we quoted from an earlier case that “residence” “means the place of actual abode, and not an established domicile or home to which one expects to return and occupy at some future date.”

The next significant case, Twin City Coach Co. v. Stewart, Adm’r, 209 Ark. 310, 190 S.W.2d 629 (1945), cites Norton, supra, as controlling but, in fact, comes close to holding that “residence” means domicile. In that case an eighteen-year-old female left her parents’ home in Logan County to obtain work in Sebastian County. She shared an apartment in Sebastian County with some other girls and worked there six (6) days a week. She returned to Logan County nearly every week on her day off, and her mother laundered her dirty clothes. With no discussion, we summarily decided the issue by writing:

Circumstances attending the conduct of one who leaves home in search of employment usually afford substantial guidance when (after an injury has occurred and the question of venue is raised) such person’s intentions and purposes become the subject of judicial consideration. See Norton v. Purkins, Judge, 203 Ark. 586, 157 S.W.2d 765; Southern Compress Company v. Elston, 204 Ark. 180, 161 S.W.2d 202.

One factor in this case may have been that it was decided at a time when eighteen-year-old females were not ordinarily thought of as having independent residences. The next case, Burbridge v. Redman, 211 Ark. 236, 200 S.W.2d 492 (1947), held that the plaintiffs residence was in Conway County where he owned a home, where his wife and children lived, and where he spent every weekend. It was held not to be at quarters in naval barracks in Ouachita County where he was temporarily working. We cited Norton v. Purkins, supra, with approval.

In 1949, the residency versus domicile issue again arose, and one of the questions was whether Twin-City Coach, supra, had overruled Norton, supra. In Missouri Pacific R.R. Co. v. Lawrence, 215 Ark. 718, 223 S.W.2d 823 (1949), we wrote:

This case has not been overruled. On the contrary, it was cited with approval in the case of Twin City Coach Co. v. Stewart, 209 Ark. 310, 190 S.W.2d 629 (1945).
[In Twin City, supra], There was thus a question of fact as to whether the injured party was a resident of Ft. Smith where she worked 6 days a week, or of Booneville where she rested on the seventh day and had her laundry done, and for that reason prohibition had been denied. It was thought by the dissenting Justice that the opinion in the Norton case, supra had been weakened if not by implication overruled, which action met with his approval, as he thought too narrow a view of residence had been taken in the Norton case. However, the Norton case was not overruled, certainly not expressly, nor by implication, as it was cited with approval in the majority opinion in the Twin City case.
In its last analysis the controlling question is whether residence and domicile are synonymous words, meaning the same thing. To hold that they are would overrule the Norton v. Purkins case, and the cases there cited, and numerous other cases to the contrary.
Norton v. Purkins has not been overruled by implication or otherwise; on the contrary, it was quoted with approval and followed in the case of Burbridge v. Redman, 211 Ark. 236, 200 S.W.2d 492, an opinion subsequent to the Twin City case, supra.

Further, in discussing the difference between residency and domicile, we wrote:

We cannot assume that the General Assembly was unaware of this difference in the meaning of the two words, but on the contrary, we must assume that it was aware of the fact that a person might have a residence in one place and his domicile in another. The venue act does not provide that the plaintiff may sue in the county of his domicile, but provides that if the suit is not brought in the county where he was injured it must be brought in the county where he “resided at the time of injury.” The question is not in what county did appellee reside for the longest period of time, but at the time he was injured.

Finally, the cases of Murry v. Maner, 230 Ark. 132, 320 S.W.2d 940 (1959), and Belford v. Taylor, 241 Ark. 220, 406 S.W.2d 868 (1966), are not of significance because both cases came up as petitions for prohibition. We explained that where venue is at issue there normally is a question of fact, and prohibition is not the proper remedy when the trial court’s authority to act depends upon a disputed question of fact.

In summation, the word “residency” as used in the venue statute means just that; it does not mean domicile. Thus, the ruling of the trial court that venue would not lie in Lafayette County was correct.

Appellant’s next two points of appeal concern jury selection. Neither point has any merit. In the first of the two points, she argues that the trial court erred in refusing to allow her additional voir dire. The material facts are that after voir dire had been completed, appellant’s attorney claimed that appellee’s attorney had “opened up a number of new elements here and we’ll need to follow-up with additional questions.” When the court asked what he was referring to, counsel said, “blood clots in her family and other kinds of questions.” The court informed appellant’s counsel that appellee’s counsel had not brought up any unanticipated matters, that appellant’s counsel “was allowed all the time he wanted for voir dire and finally stopped, [and that at] some point voir dire must be brought to an end.” Appellant did not state what additional questions she would have asked, nor does she explain how she was prejudiced.

The trial court is given great discretion with regard to the voir dire of jurors. So long as that discretion is not abused, and voir dire is not prohibited arbitrarily, the trial court’s decision on the appropriate extent of voir dire will be upheld. See ARCP Rule 47; Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977); and Johnson v. State, 298 Ark. 617, 770 S.W.2d 128 (1989). Here, the trial court did not clearly abuse its discretion in refusing to allow further voir dire.

Appellant additionally argues that appellee’s attorney engaged in improper conduct while exercising his peremptory challenges. When peremptory challenges were being made, appellant’s attorney accused appellee’s attorney of “perusing” the appellant’s list of strikes before making his own. Appellee’s counsel denied he had done so. The court stated, “Let the record reflect that the jury list was made a part of the record; the names were scratched out. There’s no way [appellee’s counsel] could read them.”

The appellant has shown nothing to overcome that statement by the court. In addition, she is unable to show prejudice resulting from the defense’s alleged misconduct injury selection, as she is required to do. In Arkansas State Hwy. Comm’n v. Dalrymple, 252 Ark. 771, 480 S.W.2d 955 (1972), we wrote:

[T]he right of peremptory challenges is conferred as a means to reject jurors — not to select jurors, and until such time as a party is forced to take an objectionable juror without the privilege of exercising a peremptory challenge, he has shown no prejudice.

Thus, there is no merit in this point of appeal.

Appellant next contends that the entire Arkansas medical malpractice act, Ark. Code Ann. §§ 16-114-201 to -209 (1987), is unconstitutional. She does not explain how the entire act has adversely impacted upon her, a necessary prerequisite to standing, nor does she cite any authority or make a convincing argument to support her position. She merely states her position that the act is unconstitutional because it violates various listed provisions of the federal and state constitutions. As we have said many times, assignments of error which are unsupported by convincing argument or authority, will not be considered on appeal unless it is apparent without further research that they are well taken. Knoles v. Salazar, 298 Ark. 281, 766 S.W.2d 613 (1989).

The appellant additionally contends that Ark. Code Ann. § 16-114-207(3) (1987), a part of the malpractice act, is unconstitutional. This particular section of the act provides that no medical care provider shall be required to give expert testimony against himself. Again, we do not reach the issue because no authority is cited, no convincing argument is made, and the validity of the contention is not apparent to us.

Next, the trial court allowed three physicians to testify as expert witnesses for appellee, even though these physicians had formerly treated the appellant. The appellant assigns this ruling as error. The appellee responds that in two of our cases, Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986), and Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981), such a practice was followed. That response is correct, but neither case has a holding approving such a practice. However, we now hold that a plaintiffs former treating physician may give his expert opinion for a defendant doctor in a medical malpractice action, so long as the physician-patient privilege is not breached.

The appellant cites cases from other jurisdictions to support her argument that this practice should not be allowed. However, only a few of the cases cited actually deal with the same issue presented here: where the plaintiffs treating physician should be allowed to testify as a defense expert. One of the cases cited by appellant, Lazorick v. Brown, 195 N.J. Super. 444, 480 A.2d 223 (1984), implies that such a practice is allowable by holding that simply because the doctor talks to the defense does not mean that he has to serve voluntarily as an expert for the defense at trial. Three other cases cited by appellant do hold that defense counsel was precluded from calling plaintiffs treating physicians to testify at trial, but in each of those cases the prohibition was a punishment for failure of defense counsel to notify the plaintiff of its communications with plaintiffs physicians. Manion v. N.P.W. Medical Center of N.E. PA., Inc., 676 F. Supp. 585 (M.D. Pa. 1987); Yates v. El-Deiry, 160 Ill. App. 3d 198, 513 N.E.2d 519, cert. denied, 118 Ill. 2d 552 (1987); and Karsten v. McCray, 157 Ill. App. 3d 1, 509 N.E.2d 1376, cert. denied, 117 Ill. 2d 544 (1987). In fact, the Yates case, supra, held that a plaintiffs treating physician may not engage in ex parte communications with the defense, but “nothing would prevent the treating physician from expressing an opinion in court, so long as proper discovery is followed.” Many of the cases cited by the appellant deal with a different issue which is not now before us: whether it is proper for defense counsel to have ex parte communications with the plaintiffs treating physicians.

Appellant next contends that the trial court erred in refusing to allow her to read the deposition of Dr. Ed Barron, her family doctor, into evidence in her case-in-chief. She contends that under ARCP Rule 32(a)(3), the deposition of a witness may be used by any party for any purpose if the court finds that the witness is a greater distance than 100 miles from the place of trial, and here, the place of trial was Fort Smith and the witness was in Little Rock, a distance greater than 100 miles. If the issue were that simple, the appellant would prevail. However, it is not so simple.

The facts are that the attorneys were not very cooperative in setting depositions. On April 11, 1988, appellant’s attorney complained that it was almost impossible for him to take discovery depositions and asked for court supervision.

On May 5, 1988, the trial judge wrote a letter to the attorneys about taking discovery depositions. In part, it provides:

I have delayed writing this letter for fear of what I might say. At the Pre-Trial Conference almost my last words concerned discovery and my reluctance to become involved in discovery disputes. If memory serves me correctly, all agreed that there should be no problems concerning discovery. Needless to say I was greatly surprised to learn that problems concerning discovery had arisen immediately. However, since the controversy has arisen the following procedure will be followed:
2.1 will set the dates of depositions without regard to the schedule of either o [¶] you or the schedule of the people being deposed.
3.1 will assess an attorney fee ranging from $2,500.00 to $10,000.00 and travel costs from Little Rock to Fort Smith. I may make a mistake as to who should be assessed the attorney fee, but the fee will be assessed. Neither of you should assume that the advantage is in your favor. That would be a great mistake. . . .

(Emphasis added.)

At a pre-trial conference on September 30,1988, the judge asked appellant’s attorney about his medical witness and depositions. The colloquy was, in part, as follows:

MR. WHETSTONE [Appellant’s attorney]: Your Honor, we’re going to have them all here.
THE COURT. So regardless of what the court does, you’re not going to try to use the discovery depositions as evidentiary depositions? [Emphasis added.]
MR. WHETSTONE: We have no present intention of doing that and never have had.

From the foregoing it is manifest that the parties and the court thought they were dealing with discovery depositions, not evidentiary ones. On October 14,1988, Dr. Barron’s deposition was taken. The stipulation made at the time of taking the deposition does not reflect whether it was a discovery or evidentiary deposition. As the trial commenced, one of appellant’s attorneys announced to the court: “Your Honor, we do intend to call Dr. Barrow live. Since he was not going to be able to be here this week, we’ll probably try to get him here next week.” In fact, shortly before the trial the appellant had not notified Dr. Barron of the trial date, had not asked him to appear as a witness, and had not subpoenaed him. Based upon the foregoing, the trial court ruled:

In this case, I feel that you have not, on a medical doctor [Dr. Barron], here just a day or two before trial in making an effort to get him here, and the Court is going to sustain the defense position that . . . you simply have made no effort at all to get this man here, intending to use this discovery deposition, and it’s not fair to the defense to not be able to fully develop the testimony of the witness and cross-examine. When you go in you should put them on notice that you are intending to use this as an evidentiary deposition, or at least some point let them know. Then the Court would certainly entertain that, but I’m going to sustain the position of the defense on that. I think make every effort to get them here, and then if you cannot, that deposition will be able to be used, and that will be the position-ruling of the court.

(Emphasis added.)

We could affirm on this point simply because appellant’s counsel never later told the trial court that he could not get Dr. Barron to trial. However, we choose not to rely solely on that fact.

In Shelter Mutual Ins. Co. v. Tucker, 295 Ark. 260, 748 S.W.2d 136 (1988), we wrote that ARCP Rule 32 outlines the use of depositions; it does not distinguish between discovery depositions and evidentiary depositions. Yet, we know that members of the bar commonly describe depositions as being either discovery or evidentiary. Here, the parties and the court obviously thought that they were dealing with “discovery” depositions, and accordingly, there was an implied agreement that they were not evidentiary depositions and could not be used as evidence at the trial. Thus, appellant waived the literal wording of ARCP Rule 32.

The appellant next argues that the trial court erred in refusing to qualify a medical doctor as an expert in the field of gynecology. This argument is also without merit. The doctor, Robert Laird, never attended a residency program in obstetrics and gynecology and does not specialize in gynecology. When he served his internship in medical school he delivered babies, but since then he spent twenty-eight (28) years, including reserve time, in the Army medical program. He taught pharmacology in a recognized medical school and was head of the research division of a large drug company. He cannot be said to be intimately familiar with gynecology. He has not held a license to practice medicine in over thirty (30) years. He is basically a medical doctor who went into the field of pharmacology.

The determination of an expert witness’s qualifications is within the discretion of the trial judge, and his ruling will not be overturned absent an abuse of that discretion. McElroy v. Benefield, 299 Ark. 112, 771 S.W.2d 274 (1989); Phillips v. Clark, 297 Ark. 16, 759 S.W.2d 207 (1988).

The appellant relies on our holding in Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986), that a general practitioner could testify as an expert, even though the defendant’s doctor’s practice involved a specialty. We said it did not matter if the doctor was a general practitioner or a specialist, so long as he exhibited knowledge of the subject. Here, the witness did not demonstrate an intimate familiarity with the subject of gynecology, and we cannot say the trial judge abused his discretion.

We need not dwell long on the next point. Appellant argues that the trial court erred in refusing to allow her to read the deposition of two medical doctors in her case-in-chief. Since the doctors were present at the trial and testified, the appellant was not deprived of the benefit of their testimony and she can show no prejudice even if the ruling might have been erroneous in some way.

Next, appellant complains about an evidentiary ruling. Appellee’s attorney wrote a letter to appellant and her attorneys, in which he threatened to sue them for filing this lawsuit. He labeled the suit frivolous. Naturally, appellant’s attorney tried to get the inflammatory letter into evidence, and the appellee’s attorney did not want the jury to see it. The trial judge ruled that the letter was not relevant and excluded it. The appellant assigns the ruling as error. The ruling was correct. The letter did not tend to make any fact at issue more or less probable. See A.R.E. Rule 401.

Appellant’s next point also involves an evidentiary ruling. Dr. Judy Johnson, a psychologist, testified on direct examination for appellant. Appellee commenced cross-examination and, after only a few questions, started to ask about the credibility of another of appellant’s psychologist witnesses, Dr. Douglas Stevens. Appellant objected to appellee’s asking Dr. Johnson “about the credibility of Dr. Stevens.” The trial court overruled the objection. The ruling was correct. A.R.E. Rule 608(a) provides that the credibility of a witness for truthfulness or untruthfulness may be attacked.

In her brief, appellant complains that appellee went way beyond the impeachment of Dr. Stevens’s character for truthfulness and untruthfulness. The appellant is correct. Appellee’s questions, in some cases, called for inadmissible answers, but there were no objections other than the above stated one about credibility. Appellant is attempting to raise the issues argued in her brief for the first time on appeal.

The foregoing part of the opinion addresses all of appellant’s points for reversal and, as stated at the outset, we hold there was no reversible error. Appellant, however, raises other points in which she asks us to modify various rulings relating to costs and sanctions.

In the first of these arguments, the appellant contends that the trial court erred in refusing to impose monetary sanctions against appellee’s attorneys. The facts necessary for an understanding of the issue are that the parties’ attorneys scheduled depositions in various cities. Appellant’s attorneys and appellee’s attorneys were obviously hostile toward each other. After appellee’s attorney and Ortho’s attorney completed direct examination of their witnesses, one or the other would unilaterally terminate the deposition, and would offer various excuses for having done so. Obviously, appellant’s attorney’s time and expenses on the trip were wasted. Appellant asked for monetary sanctions. The trial judge agreed with appellant’s position that the depositions had been wrongfully terminated and ordered that appellee must either forego use of the depositions, or pay the expense of the witnesses to come to Little Rock to complete their depositions. Little Rock is the home of appellant’s attorney. The judge declined to impose further sanctions because he found that appellant’s attorney was partly to blame for the difficulty and partly at fault in the hostility encountered in the discovery process.

ARCP Rule 37 provides for sanctions for the failure to make discovery. We deem it broad enough to cover this case. The time of taking a deposition is important. Attorney’s and client’s expenses are at stake. ARCP Rule 30(b)(3) provides, “the court may for cause enlarge or shorten the time for taking the deposition.” ARCP Rule 30(d) sets out the procedure for making a motion to terminate or limit the examination of a witness in a deposition. Both actions require a court order. The unilateral termination of the depositions without a court order contravened Rule 30(d), and was wrong.

While the conduct with respect to these depositions was improper, it is established that the imposition of sanctions for the failure to make discovery rests in the trial court’s discretion. See Diaz v. Southern Drilling Co., 427 F.2d 1118 (5th Cir. 1970). We cannot say the trial court abused its discretion in granting only limited sanctions since the depositions were completed, and especially since the appellant’s attorney also was found to be at fault.

Appellant next complains that she has been ordered to pay $5,700 in fees and expenses for two of appellee’s expert witnesses, Drs. Quirk and Barclay. We are unable to address the issue because the abstract does not reflect such an order. It is the appellant’s burden to make a record showing entitlement to relief. RAD Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986).

Finally, appellant asks us to award her partial cost of the record. Appellant designated a record on appeal which ultimately consisted of 1,217 pages and a cost of $3,588.58. Appellee additionally designated a record of 2,433 pages which cost $7,174.22. The appellant was required to pay all of the cost of the record. She contends that the additional parts of the record designated by the appellee were unnecessary and asks for $7,174.22 as costs. Appellee responds that the additional record was necessary. Some of the additional record was necessary, but most was not. Accordingly, we award appellant $5,000 costs.

Hickman and Glaze, JJ., concur.

Purtle, J., dissents.

Newbern, J., not participating.

Darrell Hickman, Justice,

concurring. I agree with the result but write to say that I doubt we can distinguish the cases of Belford v. Taylor, 241 Ark. 220, 406 S.W.2d 868 (1966), and Twin City Coach Co. v. Stewart, 209 Ark. 310, 190 S.W.2d 629 (1945). Both cases effectively interpret the residence requirement for venue to mean “domicile.” That is an incorrect interpretation of the law according to Norton v. Parkins, 203 Ark. 586, 157 S.W.2d 765 (1942). While Belford was a writ of prohibition case, it was decided on the basis of its facts, relying on the Stewart case. We ought not leave the Stewart and Belford cases in the backwater of the law. We should overrule them expressly, which we are doing by implication in this case.

Glaze, J., joins the concurrence.

John I. Purtle, Justice,

dissenting. “Venue” is the issue in this case. At the time of her injury, the appellant was, in my opinion, a resident of Lafayette County, Arkansas. Her testimony concerning her residence was as follows:

I became a citizen and resident of Lewisville, Arkansas in August of 1970.1 lived with my mother,. . .and an older brother. I finished high school there in May of 1979. In September of 19791 became a student at the University of Arkansas at Fayetteville. In doing this I packed some bags and boxes and other incidentals and put them in my car and drove to Fayetteville where I lived in Fulbright Hall, a women’s dormitory with a roommate.
In Lewisville I had my own room at home and when I would go to school I would take only my necessities and leave behind in my room and in my home everything else that I owned. Also in Lewisville I had a post office box at all times where I received my mail; I was a registered voter there and voted several times including one election during May of 1982; also had a bank account in my name in Lewisville which remained active for approximately six months or so after my marriage; my car was registered in Lafayette County at all times and still is up to this date; I had a membership in the First United Methodist Church in Lewisville at all times up until October of 1983 and I attended church in Lewisville until the latter part of 1982.

I agree with the majority that this cause of action is controlled by Ark. Code Ann. § 16-60-112(a) (1987), which allows the action to be filed in “the county where the person injured or killed resided at the time of injury.” In Burbridge v. Redman, 211 Ark. 236, 200 S.W.2d 492 (1947), this court held that, for purposes of venue, a party cannot maintain an action in a county where he temporarily works and occupies living quarters, when his wife and children live in another county. This opinion directly contradicts today’s holding by the majority. Further, Burbridge has not been overruled.

The majority relies heavily on the case of Norton v. Burkins, 203 Ark. 586, 157 S.W.2d 765 (1942), although it is not factually similar to the present case. In Norton, the plaintiff had moved his family and property to Ouachita County where they lived for some time prior to his being injured in an accident in that county. His child was enrolled in school in Ouachita County. The plaintiff in Norton brought suit for personal injuries in.Cleveland County, from which he had moved a year or two before. He claimed Cleveland County as his legal domicile and asserted that he intended ultimately to return there to live. This court held that the facts of the case established Ouachita County as his residence. The facts in Norton and those in the present case are diametrically opposed.

The factual circumstances of this case in the light of our prior decisions, make it clear that the appellant was legally a resident of Lafayette County at the time of her injury. Therefore, the trial court erred in ruling that suit was not filed in the proper county.

The case should be reversed and remanded.