author: Robert L. Brown, Justice. Steele Hays, Justice,

text:
    Tyree PHILLIPS, Sr. v. Karen JACOBS, Individually and as Next Friend of Kimberly Jacobs
    90-350
    807 S.W.2d 923
    Supreme Court of Arkansas
    Opinion delivered April 29, 1991

      Boswell, Tucker & Brewster, by: Robert E. McCallum, for appellant.

      Jim Pedigo, for appellee.
   Robert L. Brown, Justice.

This case comes to us as a one-brief case, the appellee Karen Jacobs having failed to respond. The dispositive issue is whether the trial court’s failure to enter an order disposing of the appellee’s motion for a new trial within thirty days divested the trial court of jurisdiction to act on the motion thereafter.

We hold that it did, and we reverse the trial court’s order granting a new trial entered more than thirty days after the motion was filed.

The facts are these. The appellee Jacobs sued the appellant Phillips for damages resulting from an automobile accident on Highway 67 East near Hope, Arkansas. A jury returned a verdict in favor of the appellant on March 12, 1990. The appellee then filed a motion to set aside the verdict and to grant a new trial under ARCP Rule 59 on April 3,1990. The basis for the new trial motion was that the verdict was clearly contrary to the preponderance of the evidence. No written order either granting or denying the motion was entered within thirty days of that motion. The trial judge did, according to the appellant, write the parties a letter dated May 3, 1990, granting the new trial. However, that letter was not entered of record and is not before us on appeal. On May 17, 1990, forty-four days after the filing of the motion, the trial court entered its order granting a new trial. The appellant then filed this appeal to void the trial court’s order granting the new trial on grounds that the court had no jurisdiction to act on the motion after the thirty day period had expired.

Rule 4(c) of the Arkansas Rules of Appellate Procedure (1989) is the operable rule in this regard, and it states in pertinent part:

Disposition of Posttrial Motion. If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day.

Hence, Rule 4(c) is clear that failure to act within thirty days will be deemed a denial.

We recently held that the effect of this lack of action by the trial court within thirty days was loss of jurisdiction to consider the motion. See Deason v. Farmers & Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989). The Deason facts were substantially similar. A jury verdict was entered against the bank and a judgment followed. The bank moved for a new trial, but the trial court failed to rule on the motion within thirty days. The result was a loss of jurisdiction with respect to that motion in the trial court:

The record is very clear that the motion was not ruled on, taken under advisement, or set for a hearing prior to the close of business on July 5, 1988, the day the 30 days expired. Thus the motion was deemed denied, and the order entered on July 21 was void and of no effect.

299 Ark. at 172; 771 S.W.2d at 752-753.

Though Rule 4(c) was somewhat different prior to the effective date of our Per Curiam of March 14, 1988, which simplified its terms, it consistently has required that trial court to act in some form or fashion on new trial motions within thirty days of filing, and we have previously held that failure to act within that time frame results in loss of jurisdiction to grant the relief requested under the motion. See e.g., Street v. Kurzinski, 290 Ark. 155, 717 S.W.2d 798 (1986). We have further held that a decision by the trial court within the thirty days which is not entered of record fails to meet the dictates of Rule 4(c). See Coking Coal, Inc. v. Arkoma Coal Corp., 278 Ark. 446, 646 S.W.2d 12 (1983).

Nor does ARCP Rule 60(b) invest the trial court with jurisdiction to act on a Rule 59 motion beyond the thirty day period. Rule 60(a) does grant authority in the trial court to act on its own motion to correct clerical errors and mistakes. Rule 60(b) then provides ninety days in which the trial court may, on its motion or any party’s motion, correct the error or “prevent the miscarriage of justice.” [Emphasis ours.] The reference to certain miscarriages of justice in Rule 60(b) is a reference to those clerical errors or mistakes described in Rule 60(a). Rule 60(c) details grounds for setting aside a judgment after ninety days, including new evidence discovered after the expiration of ninety days. New evidence is also a ground for a new trial motion under Rule 59, but that relates to new evidence discovered within ten days of judgment. No other reference to Rule 59 is made in Rule 60(c). Other than the one reference to newly discovered evidence, Rule 60 generally governs relief for mistakes and errors and fraud in obtaining the judgment, which are distinct and apart from those grounds substantially affecting the material rights of a party set out in Rule 59.

Though Rule 60 of the Federal Rules of Civil Procedure is substantially different from our Rule 60, the federal rule like our rule is essentially concerned with correcting mistakes and errors in judgments as well as fraud in obtaining the judgment. The relationship of Fed. R. Civ. P. 60 to Fed. R. Civ. P. 59, which also deals with new trial motions, is, therefore, of some help to us in determining the relationship between our rules. Wright and Miller in their treatise noted the words of one court on the salutary effect of Fed. R. Civ. P. 60(b) in providing relief against judgments unfairly, fraudulently or mistakenly entered but then quoted from the same case to the effect “that it would be a perversion of the rule and its purpose to permit it to be used to circumvent another rule.” Wright & Miller, Federal Practice and Procedure: Civil § 2858, p. 169; quoting from Edwards v. Velvac, 19 F.R.D. 504, 507 (D.C. Wisc. 1956), cert. den., 354 U.S. 942 (1956). We agree. In the Velvac case the rule being circumvented by the request for Rule 60 relief was the rule providing the time frame in which to file a notice of appeal. Similarly, Rule 60 under our Arkansas rules should not be used to breathe life into an otherwise defunct Rule 59 motion. We, accordingly, reaffirm our holdings that when a Rule 59 motion is timely made, the trial court must decide the motion within thirty days of its filing and enter that decision of record. Otherwise, the trial court loses jurisdiction to grant the relief requested in the motion.

We are mindful of previous precedent holding that the trial court loses jurisdiction to act on a motion for a new trial after ninety days from judgment under Rule 60(b) as opposed to thirty days from the motion under Appellate Rule 4(c). See Mullen v. Couch, 288 Ark. 231, 703 S.W.2d 866 (1986). In Mullen, however, the specific question of whether the trial court also lost jurisdiction to grant or deny the motion by not acting within thirty days was not at issue, because the trial court did not grant the motion for a new trial until more than ninety days had passed from entry of judgment. Accordingly, the issue was dispensed with under Rule 60(b).

To the same effect is a court of appeals decision holding that the trial court has ninety days from judgment to grant the relief sought in a new trial motion. See State Farm and Casualty Insurance Co. v. Mobley, 5 Ark. App. 293, 636 S.W.2d 299 (1982). In that case the trial court had not acted on a new trial motion within thirty days of the motion. Though the court of appeals held that the trial court lost jurisdiction over the motion by not granting relief within ninety days from judgment, our holding today emphasizes that jurisdiction to decide the motion was actually lost much earlier than that — after thirty days from the date of the motion.

The trial court, for the foregoing reasons, was devoid of jurisdiction to grant a new trial in the case before us. That order is reversed and remanded for reinstatement of the judgment on the verdict.

Reversed and remanded.

Hays, Glaze, and Corbin, JJ., dissent.

Steele Hays, Justice,

dissenting. I readily agree that a litigant who fails to appeal within the time allowed under Rule 4(c) of the Arkansas Rules of Appellate Procedure, loses the right to appeal. That does not mean, however, that a trial court loses jurisdiction over its judgments after the lapse of the times designated under Rule 4. The trial courts have plenary power to modify or vacate a judgment, order or decree either on the motion of a party or on their own initiative for ninety days from the date the judgment is entered, and that power is inherent and historic. Its roots are deeply embedded in the common law. St. Louis & N.A. Rd. Co. v. Bratton, 93 Ark. 234, 124 S.W. 752 (1910). Originally the power was co-extensive with the terms of court, but by Act 358 of 1969 that was changed to ninety days for probate and chancery courts and later circuit courts were included for purposes of uniformity.

Our cases, whether recent or early, recognize the unbridled power by courts of record over their judgments and decrees either during the term of court, or a lesser period fixed by statute. In Blissard Mgt. & Realty, Inc. v. Kremer, 284 Ark. 136, 680 S.W.2d 694 (1984), we said:

During the term, a judgment remains subject to the plenary control of the court and may be vacated, set aside, modified or annulled upon application or upon the court’s own initiative; the power of the courts to modify or set aside a judgment during the term it was entered exists as an inherent power and outside of any rule or statute. [My emphasis.]

In Carter v. Carter, 303 Ark. 70, 792 S.W.2d 597 (1990), we quoted that identical language in recognizing a chancellor’s inherent power to act on a motion to modify a decree filed some two and a half months after the decree.

In Henry v. Powell, 262 Ark. 763, 561 S.W.2d 296 (1978), Justice George Rose Smith wrote for this court:

We have no doubt about the regular judge’s authority to set aside the special judge’s order, within 90 days. At common law, as exemplified by our own cases, a judge had unlimited control over his judgments and orders during the same term of court. Within that time he could set aside his own judgments at will, without any motion having been filed by a party to the case and without notice to anyone. Security Bank of Branson v. Speer, 203 Ark. 562, 157 S.W.2d 775 (1942). There was no requirement that the court’s action conform to statutes relating to the vacation of judgments after the expiration of the term. McDonald v. Olla State Bank, 192 Ark. 603, 93 S.W.2d 325 (1936). The purpose of the rule, of course, was to permit a judge to correct his own errors without putting the parties to the expense and delay involved in an appeal.
Essentially, the common-law rule still prevails in Arkansas. Terms of court in chancery have been abolished, but the repealing law specifically provides that for 90 days the chancellor has the same authority that he would previously have had during the same term of court.

Recently, in City of Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989), we said:

[W]e have held frequently that the trial court loses the power to act under Rule 60(b) after ninety days from the filing of the judgment, decree or order with the clerk. Here, while appellant’s motion was filed on the 89th day and thus was timely, any power by the court to act on the motion lapsed with the expiration of the ninety days.

In Loyd v. City of Russellville, 287 Ark. 95, 696 S.W.2d 741 (1985), we said:

The trial court retains control over its judgments during the 90-day period provided for in subsection (b) of this rule, and when an order is set aside, the parties are put back in the position they occupied before the judgment was entered.

This settled principle of law was specifically incorporated into Rule 60(b) of the Arkansas Rules of Civil Procedure. Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988), (“Rule 60(b) authorizes the court to modify or set aside a judgment, decree or order on its own motion or on the motion of a party ‘within ninety days of its having been filed with the clerk’.”) In Burgess v. Burgess, 286 Ark. 497, 696 S.W.2d 312 (1985), we noted that “section (b) permits the court to correct any error or mistake, or to prevent the miscarriage of justice, within ninety days following the filing of the judgment.” The cases recognizing the inherent power of courts of record to vacate or modify their orders and judgments are legion. Fullerton v. Fullerton, 230 Ark. 539, 323 S.W.2d 926 (1959); Raymond v. Young, 211 Ark. 577, 201 S.W.2d 583 (1947); Coulter v. Martin, 201 Ark. 21, 139 S.W.2d 688 (1940); Bank of Russellville v. Walthall, 192 Ark. 1111 (1936); Old American Ins. Co. v. Perry, 167 Ark. 198 (1924);Filkes v. Rice, 110 Ark. 70 (1913); Johnson v. Campbell, 52 Ark. 316 (1889); Turner v. Vaughan, 33 Ark. 454 (1878).

Unfortunately, two lines of cases have evolved from this court, depending on whether we were interpreting Rule 4 or Rule 60. Today’s decision by the majority attempts to resolve that dichotomy, but at a high price, the subjugation of Rule 60 to Rule 4, which sorely limits the inherent power long recognized by the law. The fact is the two rules can be harmonized simply by recognizing that Rule 4 deals merely with appeal, whereas Rule 60 deals with the power of trial courts over their judgments.

Rule 4, like Rule 60, was intended to incorporate existing law of appellate procedure into Rule 4. See Reporter’s Notes to Rule 4. Indeed, this court recognized the distinction between what is now Rule 4 and Rule 60, in Old American Life Ins. Co. v. Lewis, 246 Ark. 322, 438 S.W.2d 22 (1969), interpreting Act 123 of 1963. Act 123 was designed to remedy an appeal problem which surfaced following the adoption of Act 555 of 1953. As noted in the decision in Lewis, Act 123 established a procedure whereby the time for filing notice of appeal could be postponed pending the determination of postjudgment motions. Speaking for a unanimous court, Justice Lyle Brown wrote:

Act 123 does not affect the long established procedures for the setting aside of judgments. It is clear from an examination of the act that the principal subject of all four sections is “notice of appeal”: in fact that phrase appears in every section and a total of seven times in the comparatively short act. Any doubt about the act not affecting existing procedures for review by the trial court of its proceedings is dispelled by the last sentence: Nothing herein contained shall be deemed to limit the right of any party to review of proceedings upon any motion which the law may permit to be filed after expiration of the time for giving notice of appeal. [My emphasis.]

The problem, I believe, began when we used language suggesting that the trial courts had no jurisdiction to act on a postjudgment motion after the time limits existing in Rule 4. See e.g., Street v. Kurzinski, 290 Ark. 155, 717 S.W.2d 798 (1986) and Deason v. Farmers and Merchants Bank of Rogers, 299 Ark. 167, 771 S.W.2d 749 (1989). Since trial courts clearly had plenary power at common law to modify or vacate judgments during the terms of court and since Rule 4 was not intended to limit that power, the language of those cases (Street and Deason) cannot be squared with the law. The Street opinion cites Smith v. Bone, 284 Ark. 186, 680 S.W.2d 709 (1984), but no mention of jurisdiction is to be found in Smith v. Bone. It should be noted, as well, that the language in Street was dicta, as the holding was simply that a record tendered to this court for appeal was properly refused when no order extending the time for lodging the record was made or entered within ninety days of the notice of appeal. Nothing in that procedural problem, which is all too familiar to this court, calls into question the power of the trial court to revise a judgment or order within the time allowed by law, i.e., ninety days.

The assertion that the time limits in Rule 4 are jurisdictional limitations on the trial courts may be a result of confusing the jurisdiction of appellate courts. In Davis v. Ralston Purina Co., 248 Ark. 14, 449 S.W.2d 709 (1979), for example, we said that the filing of a notice of appeal is jurisdictional, obviously a reference to the necessity of a timely notice of appeal to establish jurisdiction in the appellate court.

In General Box Co. v. Scarlock, 223 Ark. 967, 271 S.W.2d 40 (1954), and again in White v. Avery, 226 Ark. 951, 295 S.W.2d 365 (1956), we said the filing of a notice of cross-appeal within the time allowed is a “jurisdictional prerequisite to the perfection of a cross-appeal,” obviously referring to the jurisdiction of this court. If any doubt remains, we made it crystal clear the jurisdiction referred to is our own in LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980) and City of Hot Springs v. McGeorge Construction Co., 260 Ark. 636, 543 S.W.2d 475 (1976).

In conclusion, the two rules are easily reconciled by giving them parity, rather than disparity. Thus, an appellant who fails to comply with Rule 4 after filing a postjudgment pleading has lost the right of appeal from the judgment, but a failure by a litigant to act in time cannot and should not have the effect of impairing an inherent power of a trial court to modify or even vacate a judgment within that period of time fixed by law. If a trial court chooses for whatever reasons, whether due to reflection or a change of mind, it has the discretion to modify or vacate its judgments, provided it acts within ninety days. In this case the trial court elected to vacate its judgment within the time provided by law and on that basis I would affirm.

Glaze, and Corbin, JJ., join in this dissent.

       Section 4 of Act 358 reads: “Any such decree or order may be modified, set aside or vacated within ninety (90) days from the filing thereof with the clerk of the court or in pursuance to a motion made within such ninety (90) days, wherever, under the law heretofore in force, it might be modified, set aside or vacated prior to the expiration of the term of court at which it was rendered or in pursuance of a motion made at that term.


source: Caselaw Access Project

license: Public Domain

text:
    RYDER TRUCK RENTAL, INC. v. H. D. SUTTON, and Arkansas Bank & Trust
    90-77
    807 S.W.2d 909
    Supreme Court of Arkansas
    Opinion delivered April 29, 1991

      Mitchell and Roachell, by: Michael W. Mitchell and Clayton R. Blackstock, for appellant.

      Friday, Eldredge & Clark, by: William A. Waddell, Jr., for appellee H. D. Sutton.

      Wood, Smith, Schnipper & Clay, by: Philip M. Clay for appellee Arkansas Bank & Trust.
   W. W. Bassett, Jr., Special Chief Justice.

This is the companion case to H. D. Sutton v. Ryder Truck Rental, Inc., 305 Ark. 231, 807 S.W.2d 905 (1991). In order to properly identify and address the issues raised by Ryder on appeal, it is first necessary to delineate the procedural and factual history of the case.

The facts show that Ryder obtained a judgment against Sutton in the amount of $292,042.43. The judgment was filed on September 6,1989. After the judgment was entered, Sutton filed a motion for new trial. Subsequently, on October 13,1989, while the motion for new trial was pending, Sutton filed a motion for stay upon appeal. The motion was accompanied by an “indemnity bond” that was signed by Sutton and collateralized by 19.8 acres of industrial property in Garland County.

On October 16,1989, the trial court denied Sutton’s motion for new trial. On October 18, 1989, Ryder filed a response to Sutton’s motion for stay. In its response, Ryder claimed that Sutton’s indemnity bond did not qualify as a valid “supersedeas bond” because it lacked the signature of a surety. Ryder also argued that even if Sutton’s indemnity bond qualified as a valid supersedeas bond, the property pledged by Sutton was insufficient collateral to adequately protect Ryder pending Sutton’s appeal.

On November 3, 1989, and again on December 22, 1989, Ryder caused a writ of garnishment to be issued to Arkansas Bank and Trust in Hot Springs (“ABT”). ABT timely answered both writs of garnishment identifying funds it was holding in Sutton’s checking account and IRA account. Sutton claimed that the IRA account was exempt from garnishment under Act 428 of 1989. Ryder claimed that this exemption was unconstitutional.

On January 12, 1990, Sutton filed an amended motion for stay and pledged an additional 8.5 acre tract of property in Garland County as collateral for the indemnity bond.

The case came on for hearing before the trial court on January 22, 1990. At that time, the parties mutually agreed to hold in abeyance the issue of whether Sutton’s IRA account was exempt from garnishment. The trial court continued Sutton’s motion to claim exemption on the IRA account.

At the hearing, both parties presented testimony regarding the value of the property pledged by Sutton as collateral for the indemnity bond. Sutton’s appraiser, Frank Manzer, testified that the 19.8 acre tract of property had a fair market value range from $325,000 to $410,000. Manzer also testified that the 8.5 acre tract of property had a fair market value from $37,900 to $42,600. Sutton testified that he would accept $36,000 for this tract of property.

Ryder’s appraiser, Ray Donothan, testified that the value of the 19.8 acre tract of property was $185,000 and the value of the 8.5 acre tract of property was $20,000. Ryder offered additional testimony that “distress sales” in Garland County brought substantially less than the fair market value and that banks in Garland County would generally loan up to 75 % of the property value.

The trial court’s order was entered on February 9,1990. At Ryder’s request, the order was amended to specifically set forth the trial court’s findings of facts and conclusions of law. This amended order was entered on March 8, 1990, some six months after Ryder’s judgment was filed. The trial court held that Rule 8 of the Arkansas Rules of Appellate Procedure gave the court discretion as to whether a surety is required for a supersedeas bond. The trial court also concluded that the term “surety”, as that term is used in Rule 8, can include property which the court deems sufficient to secure a judgment. The trial court further found that the fair market value of the 19.8 acre tract of property was $325,000 and the fair market value of the 8.5 acre tract of property was $36,000. The trial court held that the fair market value of the two tracts of property pledged by Sutton constituted sufficient collateral for Sutton’s indemnity bond to adequately protect Ryder’s judgment pending Sutton’s appeal. Finally, the trial court “lifted” the garnishment lien placed on Sutton’s checking account and IRA account. ABT complied with the court order and released Sutton’s funds to him.

Ryder raises three issues on appeal. First, Ryder contends that the trial court erred in approving the indemnity bond as a valid supersedeas bond. Secondly, Ryder contends that its judgment is not adequately secured because the trial court erred in valuing the two tracts of property at their fair market value rather than the amount they were likely to bring at a distress sale. Finally, Ryder contends that the trial court erred in “lifting” Ryder’s garnishment lien against Sutton’s checking account and IRA account. Ryder seeks to hold ABT liable for the funds that it released to Sutton.

This case principally involves the construction and interpretation of Rule 62 of the Arkansas Rules of Civil Procedure and Rule 8 of the Arkansas Rules of Appellate Procedure. Rule 29(1)(c) of the Rules of the Supreme Court and Court of Appeals vests this court with exclusive jurisdiction to interpret these rules. See May v. Barg, 276 Ark. 199, 633 S.W.2d 376 (1982); Aldridge v. Watling Ladder Co., 275 Ark. 225, 628 S.W.2d 322 (1982). For the reasons set forth below, we affirm the trial court.

The first issue this case presents is whether Sutton’s “indemnity bond” qualifies as a valid “supersedeas bond” under A.R.C.P. 62 and A.R.A.P. 8. A.R.C.P. 62 provides for the stay of proceedings to enforce a judgment. Rule 62(d) specifically provides for the stay of such proceedings during the pendency of an appeal. Rule 62(d) provides in pertinent part as follows:

Stay On Appeal. When an appeal is taken, the appellant by giving a supersedeas bond may obtain a stay. . .The bond may be given at or after the time of filing the notice of appeal. After an appeal has been docketed in the Supreme Court, application for leave to file a bond may be made only in such court.

A.R.A.P. 8 also provides for a stay pending appeal and supplements Rule 62(d). Rule 8(c) provides in pertinent part as follows:

Supersedeas Bond. Whenever an appellant entitled thereto desires a stay on appeal, he shall present to the court for its approval a supersedeas bond which shall have such surety or sureties as the court requires. . .

Ryder contends that Sutton’s indemnity bond lacks a surety or sureties as required by Rule 8(c) and for that reason does not qualify as a valid supersedeas bond. Ryder maintains that the term “surety” can only mean a person or entity, other than the judgment debtor, who guarantees payment. In short, Ryder argues that the requirement of a surety or sureties under Rule 8(c) is mandatory and can only be satisfied by a personal or corporate surety, and not by the pledge of property.

A.R.C.P. 62(d) and A.R.A.P. 8 clearly place the responsibility for approval of a supersedeas bond and issuance of a stay order with the trial court or appellate court, depending on the status of the appeal. In this case, Sutton’s indemnity bond and application for stay were properly made with the trial court. The trial court approved Sutton’s indemnity bond as a valid supersedeas bond and issued a stay order. In doing so, the trial court concluded that the language of Rule 8(c) was discretionary as to the requirement of a surety for a supersedeas bond. The trial court further reasoned that if in the exercise of this discretion it determined that a surety was required, then Rule 8(c) also provided that the trial court could determine the nature and extent of the security necessary to satisfy the surety requirement. The trial court found that the term “surety”, as used in Rule 8(c), could include property which the court deemed sufficient to secure a judgment. We too find the language of Rule 8(c) to be discretionary and provided the trial court with sufficient latitude to approve Sutton’s indemnity bond as a valid supersedeas bond.

The specific discretionary language found in Rule 8(c) provides that a supersedeas bond “shall have such surety or sureties as the court requires.” [emphasis supplied] The term “such”, as used in this rule, connotes a sense of both kind and degree. Webster’s New Collegiate Dictionary, 1163 (8th Ed. 1977). When used properly, it further implies that other similar things exist. George Rose Smith, A Primer of Opinion Writing, For Four New Judges, 21 Ark. L. Rev. 197 (1967). The phrase “as the court requires”, as used in this rule, clearly gives the court discretion to determine when and to what extent a supersedeas bond must be secured. We conclude that the pledge of property is a kind of surety that exists and is provided for under Rule 8(c). Moreover, we believe that the fair market value of the property pledged is security of a sufficient degree to adequately protect Ryder’s judgment pending Sutton’s appeal. We, therefore, find sufficient latitude in the language of Rule 8(c) to accommodate the trial court’s interpretation and findings.

The purpose or effect of a supersedeas bond is to secure the payment of a judgment following its affirmance on appeal. See Wilson v. King, 59 Ark. 32, 246 S.W. 18 (1894); see also 4A CJS Appeal and Error, subsections 643 & 647. Rule 8(c) affords the court sufficient discretion to marshal security, so long as security remains the ultimate goal. By interpreting the language of Rule 8(c) to permit the filing of a supersedeas bond without surety, or to allow for the term “surety” to include not only the promise of a person, but also the pledge of property, we do not intend or believe that we have diminished the purpose or effect of a supersedeas bond. Instead, we simply recognize that Rule 8(c) authorizes the court to determine on a case-by-case basis the extent to which an appellee’s judgment may or may not be in jeopardy and to marshal security of a kind and sufficient degree to secure the payment of the judgment following an affirmance on appeal. Rule 8(c), therefore, provides for methods of security other than a personal or corporate surety bond, and a court in its discretion may consider these alternative methods of security.

Ryder next argues that its judgment is not adequately secured because the trial court erred in fixing the value of the property pledged by Sutton at its fair market value rather than its distress sale value. Ryder does not, however, challenge the trial court’s findings as to the dollar amount of the fair market value of the property pledged by Sutton. Instead, Ryder only challenges the method that the court used to fix the dollar value of the pledged property. We find that the trial court’s method in fixing the value of Sutton’s property at its fair market value was proper.

Ryder offers no authority that the value of the property should be fixed at its distress sale value and not at its fair market value. Rather, Ryder argues prospectively that if its judgment against Sutton is affirmed on appeal, then it is unlikely that the fair market value of the property will be realized at a public sale. We believe that the fairer method of determining the property’s value is in the present, not the future. After considering evidence from both Sutton and Ryder’s appraisers, the trial court found that the present fair market value of the property pledged by Sutton was adequate security to protect Ryder pending Sutton’s appeal. The fair market method of valuation employed by the trial court has both legislative and judicial precedent. See Howell v. Walker, 136 Ark. 578, 207 S.W. 41 (1918); Kirby’s Dig. § 1222.

Finally, Ryder maintains that the trial court erred by “lifting” the garnishment lien levied against Sutton’s checking account and IRA account with ABT. Ryder argues that its lien attached before the supersedeas order was issued and, since the supersedeas order only had the effect of staying further proceedings to enforce the lien, the trial court did not have authority to “lift” the lien.

Under A.R.C.P. 62(d) and A.R.A.P. 8, the filing of a supersedeas bond and the issuance of a supersedeas order are necessary to stay proceedings to enforce a judgment pending appeal. See Festinger v. Kantor, 272 Ark. 411, 616 S.W.2d 455 (1981). In Searcy Steel Co. v. Mercantile Bank of Jonesboro, Ark., 19 Ark. App. 220, 719 S.W.2d 277 (1986), the Court of Appeals held that a supersedeas order does not have the effect of vacating a judgment, but only stays proceedings to enforce it. The Court of Appeals further stated that if a lien attaches before a supersedeas order becomes effective, then the supersedeas order only has the effect of prohibiting further proceedings to enforce the lien. Searcy Steel, 19 Ark. App. at 226. While we agree with this view, we find that a supersedeas order should relate back to the filing of a valid supersedeas bond and, therefore, becomes effective at the time of the filing of a valid supersedeas bond.

In the case at bar, the supersedeas bond was filed on October 13,1989. The writs of garnishment were not issued until November 3, 1989 and December 22, 1989. The supersedeas order was filed on February 9, 1990 and amended on March 8, 1990. The supersedeas order related back to the filing of the supersedeas bond on October 13,1989, which was prior to Ryder having its writs of garnishment issued. Hence, at the time the writs of garnishment were issued, a retroactive stay was in effect. Consequently, the garnishment lien was not valid. In our view, we need not determine whether the trial court had the authority to “lift” Ryder’s garnishment lien, since it never attached.

A.R.C.P. 62 and A.R.A.P. 8 clearly envision that an appellant may obtain a continuous and uninterrupted stay of any proceedings to enforce a judgment from the date of the entry of the judgment until the final disposition of the case on appeal. Rule 62(a) provides for an automatic stay during the ten days immediately following the entry of a judgment. Rule 62(b) allows the court to stay an execution or other enforcement proceedings during the pendency of post-judgment motions. Rule 62(d) and A.R.A.P. 8 provide for a stay during the pendency of an appeal. To obtain a stay on appeal, these rules require that an appellant file a valid supersedeas bond and obtain a supersedeas order. In many instances, the filing of the supersedeas bond and obtaining of the supersedeas order cannot be done simultaneously. If a supersedeas order does not relate back to the filing of a supersedeas bond, then the stay is interrupted. We believe that such an interruption presents an unnecessary problem and opens the door for potential mischief. For example, suppose JC (judgment creditor) obtains a judgment against JD (judgment debtor). JD files an application for stay and supersedeas bond on Monday, but cannot obtain a corresponding supersedeas order on Monday because the Judge has gone fishing till Friday. JD does obtain an ex parte supersedeas order on Friday. JC recognizes that the Judge’s unavailability provides him with a window of opportunity to place a garnishment lien on JD’s bank account. JC garnishes the bank account on Wednesday before the supersedeas order is obtained. If the supersedeas order becomes effective on Friday, then JC’s lien has attached, and since the supersedeas order only has the effect of staying enforcement of the garnishment lien, then the garnishment lien remains in place for the duration of JD’s appeal. Despite the fact that JD has acted in a reasonable and timely manner, JD now finds a garnishment lien placed on his bank account and the funds “frozen” while his case is pending on appeal. We do not believe A.R.C.P. 62(d) and A.R.A.P. 8 intended or should permit this infelicitous result. To eliminate this possibility, we believe the better view is that a supersedeas order relates back to the filing of a valid supersedeas bond and retroactively effects a stay during the period of time between the filing of the supersedeas bond and the filing of the supersedeas order.

We do not believe that our decision in this case is in direct conflict with the Court of Appeals’ decision in Searcy Steel, supra. In Searcy Steel, the garnishment lien attached prior to the filing of the supersedeas bond. Since the lien had attached before the supersedeas bond was issued, the supersedeas order and supersedeas bond only had the effect of staying proceedings to enforce the lien. Hence, we believe that our decision in the case at bar is consistent with the Court of Appeals’ decision in Searcy Steel. We have, however, to some extent clarified that decision here by finding that a supersedeas order relates back in time to the filing of a valid supersedeas bond and effects a retroactive stay from the time of the filing of the valid supersedeas bond.

Having determined that Sutton’s indemnity bond qualified as a valid supersedeas bond and preceded in time Ryder’s writs of garnishment, we find that the supersedeas order related back to the filing of Sutton’s supersedeas bond and Ryder’s garnishment lien never attached. We, therefore, find no liability on the part of the garnishee appellee, Arkansas Bank and Trust.

Holt, Chief Justice, not participating.


author: Special Justice David R. Matthews.

text:
    Homer D. SCHMIDT, Administrator of the Estate of His Deceased Wife, Betty Schmidt, et al. v. Dr. Mark GIBBS, Dr. Stanley Browning; Arkansas Anesthesia, P.A., et. al.
    90-264
    807 S.W.2d 928
    Supreme Court of Arkansas
    Opinion delivered April 29, 1991

      The McMath Law Firm, P.A., by: Phillip H. McMath, for appellants.

      Friday, Eldredge & Clark, for appellee St. Paul Fire and Marine Insurance Company.

      Mitchell, Williams, Selig and Tucker, by: T. Scott Clevenger, for appellees Dr. Stanley Browning and Arkansas Anesthesia.
   Special Justice David R. Matthews.

This is a wrongful death medical malpractice case. The appellant, Homer D. Schmidt, contends that the trial court erred in granting the motion for summary judgment of the appellees, Dr. Stanley Browning, Arkansas Anesthesia, P.A., and St. Paul Fire and Marine Insurance Company as insurer of Baptist Medical Center. We disagree as to appellees, Browning and Arkansas Anesthesia, P.A., and affirm as to them. However, the appellant is correct that there were genuine issues of material fact as to appellee, St. Paul Fire and Marine Insurance Company, the property and liability insurer of Baptist Medical Center. Accordingly, we reverse and remand as to St. Paul Fire and Marine Insurance Company.

Homer D. Schmidt brought this action in the circuit court of White County, Arkansas on November 30,1989, as the administrator of the estate of his deceased wife, Betty Schmidt. Appellant alleged medical malpractice on the part of the defendants, Dr. Mark Gibbs, Dr. Stanley Browning, Arkansas'Anesthesia, P.A., and Baptist Medical Center. On March 30,1989, Betty Schmidt was asleep under general anesthesia for a tracheostomy procedure being performed by Dr. Mark Gibbs. While performing the operation, Dr. Gibbs was utilizing a cauterizing machine, referred to as a “bovie.” The bovie machine is a heat producing device used to make an incision in the patient’s trachea. During the operation, a flame of fire approximately six inches in length emanated from the patient’s throat which flame was extinguished by the nurse anesthetist and nurses. The appellant alleged that the injuries Betty Schmidt suffered from the fire were a contributing proximate cause of her subsequent death on April 11, 1989.

Dr. Stanley Browning, though not present at the time, was the anesthesiologist supervising Terry Ray, the nurse anesthetist who actually induced the anesthesia. Both Dr. Browning and Nurse Ray were employees of the Defendant, Arkansas Anesthesia, P.A. The nurses present were employees of Baptist Medical Center and the equipment utilized in the operation procedure was the property of Baptist Medical Center. Baptist Medical Center is insured by St. Paul Fire and Marine Insurance Company. In addition to specific allegations of ordinary negligence against each of the named defendants, the appellant alleged that the defendants were all jointly liable under the doctrine of res ipsa loquitur.

During the discovery process, the appellant named Dr. Mervyn Jeffries as his expert witness on the issues of liability and damages. A discovery deposition of Dr. Jeffries was taken. In that deposition, Dr. Jeffries testified that Dr. Gibbs was negligent. He was asked the following:

Q. Are you in any way critical of the nurses in the care they provided during the tracheostomy procedure?
A. No.
Q. Are you critical of anyone other than Dr. Gibbs with respect to the fire occurring during the tracheostomy?
A. No.

Upon inquiry by counsel for appellees, Browning and Arkansas Anesthesia, P.A., Dr. Jeffries testified that the care and treatment rendered by Dr. Browning, Nurse Ray, and thus, Arkansas Anesthesia, P.A., was not below the standard of care in the community. It is important to note that Dr. Jeffries did not express an opinion on whether the involvement or care and treatment of Betty Schmidt by the nursing team or Baptist Medical Center was within or below the standard of care for the community.

As a result of Dr. Jeffries’ testimony, the appellees, Browning, Arkansas Anesthesia, P.A., and St. Paul Fire and Marine Insurance on behalf of Baptist Medical Center, moved for summary judgment. Dr. Mark Gibbs also moved for summary judgment. The motions for summary judgment of Dr. Browning, Arkansas Anesthesia, P.A., and St. Paul Fire and Marine Insurance were granted. The motion of Dr. Gibbs was denied.

Since the defendant, Dr. Mark Gibbs, remained in the case, the trial court made a finding pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure that directed entry of final judgment as to appellees, Browning, Arkansas Anesthesia, P.A., and St. Paul Fire and Marine Insurance, and specifically found that there was no just cause for delay, making a specific determination that a danger of hardship or injustice would arise should an immediate appeal not be allowed. It is from this judgment that appellant appealed directly to the supreme court pursuant to Rule 29 (o).

Actions for medical injury are governed by the Arkansas Medical Malpractice Act, Ark. Code Ann. §§ 16-114-201 to -209 (1987). Specifically, any plaintiff in an action for medical injury has the burden of proving 1) the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality; 2) that the medical care provider failed to act in accordance with that standard; and 3) that as a proximate result thereof, the injured person suffered injuries which would not have otherwise occurred. Ark. Code Ann. § 16-114-206 (1987). The appellants herein have attempted to meet the requirements of the Arkansas Malpractice Act by means of the expert testimony and affidavits of Dr. Mervyn Jeffries. In addition, appellants have plead and argued that all defendants are liable under the theory of res ipsa loquitur.

The theory of res ipsa loquitur is a rule of evidence that comes into play when:

1. The defendant owes a duty to the plaintiff to use due care;

2. The accident is caused by the thing or instrumentality under the control of the defendant;

3. The accident which caused the injury is one that, in the ordinary course of things would not occur if those having control and management of the instrumentality used proper care;

4. There is an absence of evidence to the contrary. Dollins v. Hartford Accident & Indemnity Co., 252 Ark. 13, 477 S.W.2d 179 (1972); Martin v. Aetna Casualty & Surety Co., 239 Ark. 95, 387 S.W.2d 334 (1965); and Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581, 117 S.W. 564 (1909).

If each of the elements for the application of the doctrine of res ipsa loquitur is present, then “the accident from which the injury results is prima facie evidence of negligence and shifts to the defendant the burden of proving that it was not caused through any lack of care on its part.” Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581, 117 S.W. 564.

The state of Arkansas law on the application of the doctrine of res ipsa loquitur to medical malpractice cases is confusing and unclear. In Routen v. McGee, 208 Ark. 501, 504, 186 S.W.2d 779, 780 (1945), the court stated, “we have very definitely held that the doctrine does not apply to. . .the practice of medicine and surgery. . . .”

Subsequent cases and treatise writers have relied on that statement to reach the conclusion that Arkansas does not recognize the doctrine of res ipsa loquitur as to the practice of medicine or surgery. See Adams v. Heffington, 216 Ark. 534, 226 S.W.2d 352 (1950); Norland v. Washington General Hospital, 461 F.2d 694 (8th Cir. 1972), and comment to AMI Civil 3rd, 1501. However, the court in Routen v. McGee, was relying upon and referring to the case of Brown v. Dark, 196 Ark. 724, 119 S.W.2d 529 (1938). We believe the court in Routen misconstrued our holding in Brown v. Dark. The Brown case does not hold that res ipsa loquitur does not apply in all malpractice cases. Instead, it holds that the doctrine of res ipsa loquitur does not apply under the facts presented in Brown. The alleged malpractice in Brown concerned the setting of a broken arm of a six-year-old boy, which resulted in infection and caused paralysis and rendered the arm useless. Plaintiffs therein attempted to show that the infection occurred as a result of the arm being bound too tightly so as to cut into the flesh and being placed in the cast without protecting the flesh. The court went into great detail in discussing the various treatments offered the young boy. Considerable attention was given to the father’s decision to take the boy home and out of treatment. The court ended its discussion as follows:

Our conclusion is that appellee has failed to support his allegations with substantial evidence. This is a case where a layman took chances and experienced misfortune of a tragic nature. If the doctrine res ipsa loquitur applied, the judgments might be sustained. But, it does not. Medicine and surgery are inexact sciences and physicians are not guarantors of results. Our view is that permanent injuries to appellee’s son were occasioned by appellee’s own negligence or error of judgment in not leaving the patient with Dr. McAdams when it became apparent infection had developed.

The doctrine of res ipsa loquitur did not apply in Brown because of the father’s negligence. Obviously, the fourth essential element of res ipsa loquitur — that there be “an absence of evidence to the contrary” — was missing in the facts in Brown. Thus, the doctrine of res ipsa loquitur could not have applied. The confusion resulting from the misinterpretation of Brown by the Routen court is understandable. Thus, we clearly state here that the doctrine of res ipsa loquitur may apply in cases of medical malpractice on the part of any and all medical care providers as defined by the Medical Malpractice Act if the essential elements for application of the doctrine exist.We have said as much in cases subsequent to Routen v. McGee dealing with hospitals and nurses. See Martin v. Aetna Casualty and Surety Co., 239 Ark. 95, 387 S.W.2d 334; Dollins v. Hartford Accident & Indemnity Co., 252 Ark. 13, 477 S.W.2d 179.

In the instant case, the appellant is not entitled to the application of the doctrine of res ipsa loquitur in respect to appellees Browning and Arkansas Anesthesia, P.A., for. reasons similar to those discussed in Brown. Here, there is “evidence to the contrary” which indicates the use of “proper care” by Dr. Browning and Nurse Ray. The expert witness selected by the appellant has testified in clear and unequivocal terms that the care and treatment offered by Dr. Browning and Nurse Ray was not below the standard of care required. In addition, the appellees’ expert witness, Dr. Robert G. Valentine, corroborates Dr. Jeffries’ opinion that Dr. Browning and Nurse Ray had met the requisite standard of care.

Appellant attempts to maintain the potential liability of Dr. Browning and Nurse Ray by submitting Dr. Jeffries’ affidavits opining that the type of fire which occurred in this case could not happen absent negligence on behalf of someone on the surgical team of Dr. Gibbs, Dr. Browning, Nurse Anesthetist Ray, and the attending nurses. However, this evidence is insufficient to overcome Dr. Jeffries’ testimony that the actions of Dr. Browning and Nurse Ray were not below the standard of care required. This testimony constitutes “evidence to the contrary” thereby preventing the application of the doctrine of res ipsa loquitur. Since there is no direct evidence of negligence either, there are no material issues of fact in dispute. Accordingly, the decision of the trial court to grant summary judgment on behalf of appellees, Dr. Stanley Browning and Arkansas Anesthesia, P.A., is affirmed.

Appellee St. Paul Fire and Marine Insurance Company, insurer for Baptist Medical Center, is not so fortunate. The trial court granted the motion for summary judgment on behalf of St. Paul because it considered the doctrine of res ipsa loquitur inapplicable because “the nurses were not in exclusive control of the procedure.” We disagree. One of the elements necessary for the application of the doctrine of res ipsa loquitur is that “the accident is caused by the thing or instrumentality that is under the control or management of the defendant.” Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581, 117 S.W. 564. The defendant in the case at bar is St. Paul Fire and Marine Insurance Company, insurer for Baptist Medical Center. The operating room, equipment, and nurses were all things or instrumentalities under the control or management of Baptist Medical Center.

We therefore believe that this element of res ipsa loquitur was established. We further believe that the appellant had submitted, through expert testimony, facts which, if believed, would satisfy each of the remaining elements necessary for the application of the doctrine of res ipsa loquitur. The situation of appellee, St. Paul Fire and Marine, is therefore distinguishable from that of the appellees, Browning and Arkansas Anesthesia, P.A. As related above, there was clear and unequivocal testimony that Dr. Browning and Nurse Ray had met the required standard of care. The testimony concerning the care provided by nurses who were employees of Baptist Medical Center is not so clear and unequivocal.

The evidence before the trial court concerning the care provided by the nurses and Baptist Medical Center consisted of the deposition and two affidavits of plaintiffs expert witness, Dr. Mervyn Jeffries. In his deposition, Dr. Jeffries stated that he was not “in any way critical of the nurses in the care they provided during the tracheostomy procedure.” This testimony is not an unequivocal statement that the nurses met the requisite standard of care. In Dr. Jeffries’ affidavits he opines that the type of fire that occurred in this case could not happen absent negligence on the part of someone on the surgical team comprised of Dr. Gibbs, Dr. Browning, Nurse Ray, and the nursing team. If believed, these facts, in our view, would warrant the application of the doctrine of res ipsa loquitur. Thus, there clearly remained an issue of material fact to be litigated. Summary judgment should not be granted where reasonable minds could differ as to the conclusions they could draw from the facts presented. Lee v. Doe, 274 Ark. 467, 626 S.W.2d 353 (1981).

We feel it was improper to grant summary judgment on behalf of St. Paul Fire and Marine Insurance Company as the record stood at the time of the judgment. Therefore, that portion of the case is remanded for further proceedings consistent with this opinion.

Affirmed, in part.

Reversed, in part.

Special Justice Eddie H. Walker joins.

Hays and Brown, JJ., not participating.


author: Per Curiam.

text:
    Robert BOGARD and George Willis v. STATE of Arkansas
    RC 91-20
    807 S.W.2d 468
    Supreme Court of Arkansas
    Opinion delivered April 29, 1991

      Clyde Lee, for appellants.
    No response.
   Per Curiam.

Appellants, Robert Bogard and George Willis, by their attorney, have filed for a rule on the clerk.

Their attorney, Clyde E. Lee, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause-to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Kelly HUGGINS v. STATE of Arkansas
    RC 91-3
    807 S.W.2d 660
    Supreme Court of Arkansas
    Opinion delivered April 29, 1991

      Christopher Carter, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Sr. Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant Kelly Huggins, by his attorney, has filed a motion for a rule on the clerk.

His attorney, Christopher O’Hara Carter, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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

Appellant further moves for a declaration that he is indigent under Supreme Court Rule 28. That motion is granted.

Appellant’s counsel moves to dismiss his previous petition to withdraw as counsel. That motion, too, is granted.


author: Jack Holt, Jr., Chief Justice. Donald L. Corbin, Justice,

text:
    Donnie HICKS v. STATE of Arkansas
    CR 90-268
    808 S.W.2d 348
    Supreme Court of Arkansas
    Opinion delivered May 6, 1991

      Burbank, Dodson, & McDonald, for appellant.

      Winston Bryant, Att’y Gen., by; Sandy Moll, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Donnie Hicks, was convicted of both leaving the scene of an accident involving death and manslaughter. He was sentenced to nine years and twenty years imprisonment, respectively, and fined $10,000 for each offense.

Hicks’ first argument on appeal is that he was denied a speedy trial. He contends the trial court erred in continuing his case due to a crowded court docket without a showing of exceptional circumstances and, furthermore, that such circumstances were not stated in an order continuing the case or on the docket prior to the expiration of the speedy trial period as required by Ark. R. Crim. P. 28.3. Since we find merit in this argument, we decline to address Hicks’ remaining arguments concerning insufficiency of the evidence and the denial of his motion in limine.

The case is reversed and dismissed, based on the denial of Hicks’ right to a speedy trial.

On April 1, 1989, Hicks was involved in an automobile accident in which the driver of the other vehicle died at the scene. Hicks walked away from the accident and was arrested for this offense later that day. He was subsequently incarcerated and charged with violations of Ark. Code Ann. §§ 27-53-101 and 5-10-104 (1987). It is agreed, by all parties, that the time for speedy trial purposes began running on April 1,1989, the date of Hicks’ arrest. See Ark. R. Crim. P. 28.2(a).

The record provides the following scenario:

March 14, 1990. Trial was scheduled; however, the trial court discovered a scheduling conflict on March 13, 1990, and notified the State that the case would need to be continued. The only reference, found in the record, concerning the trial court’s decision to continue Hicks’ case is the following letter, written by Hicks’ attorney and addressed to the Prosecutor, Jeff Rogers. It is dated March 13, 1990.

Dear Jeff:
This letter shall serve to confirm our telephonic conversation on this date that the above captioned matter has been continued from Wednesday, March 14,1990, and will be rescheduled to a future date. Please accept this letter as Defendant’s request that he and his attorneys be provided with as much advance notice of the rescheduled date as possible.

The record contains no order or docket entry reflecting the continuance at the time of the trial court’s decision.

March 21, 1990. An entry was made on the trial court’s docket sheet indicating: “Order setting trial - Tuesday, April 10, 1990 @ 9:30.”

March 23,1990. The State filed a motion for excluded time period in which it requested that the time from March 14, 1990, to April 10, 1990, be excluded for speedy trial purposes due to a “congested trial calendar.”

March 27, 1990. A second entry was added to the court docket which reads: “Due to the crowded court trial docket it was necessary to move to April 10, 1990 for trial. The period from March 14,1990 to 4-10-90 shall be an excluded period for speedy trial rule.”

April 2,1990. Hicks filed his response to the State’s motion of March 23, 1990, along with a motion to dismiss, noting the State’s failure to prosecute within one year from the date of arrest and the trial court’s failure to follow the requirements of Rules 28.3(b) and (i).

April 10,1990. The trial court responded by entering its first formal order enunciating the following reasons for continuing the trial:

Before the Court is a Motion to Exclude Time filed on behalf of the State of Arkansas in the captioned matter. By order dated December 22,1989, the captioned matter was scheduled for trial on March 14,1990. On March 13,1990, this matter was continued from that trial setting because of a scheduling conflict. The Court set in excess of one hundred cases for trial in its March, 1990, trial term. After two plea days and docket calls, the number of cases for trial was reduced to twenty-one.
The Court scheduled the matter of State of Arkansas vs. Charles A. Moore, No. CR-89-147, for trial on March 13, 1990. All trials are scheduled for a one day to complete. Because the Moore trial required two days to complete, this matter was continued from its setting. Both parties had announced ready for trial previously. However, neither party objected to the continuance.
The Court was unable to reschedule this matter for trial prior to April 10, 1990. Being within a Judicial Circuit comprised of six counties and having jurisdiction over all felony criminal matters in the Circuit, the Court must, travel to each county on a monthly basis to tend to pending cases. It is well established that the Court travels the Circuit the last week of each month for theses (sic) purposes and such occurred the last week of March 1990.
Additionally, the Court has scheduled trials in Calhoun County, Arkansas for the period of April 2-9, 1990. This matter could not have been rescheduled prior to April 10, 1990.
Based upon the foregoing the Court finds the motion to Exclude Time is well taken and should be formally granted pursuant to Arkansas Rules of Criminal Procedure Rule 28.3 (b) and (h). The Court finds that these factors constitute good cause for exclusion of time.
Therefore, the period of time for March 14, 1990 through April 10, 1990 shall be exclude (sic) time for purposes of speedy trial calculations.
IT IS SO ORDERED.

It is undisputed that, under Ark. R. Crim. P. 28.1(c), the State was required to bring Hicks to trial by April 1, 1990, excluding only those periods of delay as authorized by Rule 28.3. Hicks was tried nine days after the required one-year period had elapsed, and the burden is on the State to show good cause for untimely delay. Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987).

The law is well settled that congestion of the trial docket, alone, is not just cause for breaching the speedy trial rule. See Harkness v. Harrison, 266 Ark. 59, 585 S.W.2d 10 (1979); Novak v. State, supra; Rule 28.3(b). The State maintains, however, that the trial court’s order of April 10, 1990, reflects “exceptional circumstances” justifying exclusion of time under Rule 28.3. That rule states in pertinent part:

The following periods shall be excluded in computing the time for trial:
* * *
(b) The period of delay resulting from congestion of the trial docket when the delay is attributable to exceptional circumstances. When such a delay results, the court shall state the exceptional circumstances in its order continuing the case.
* * * *
(i) All excluded periods shall be set forth by the court in a written order or docket entry. . . .

Although not expressly stated in the rule, we have said that a trial court should enter written orders or make docket notations at the time continuances are granted to detail the reasons for the continuances and to specify, to a day certain, the time covered by such excluded periods (emphasis added). McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990); Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). In order to provide any impetus behind Rule 28.3, we must adhere to this language; otherwise, there is no need for the rule. Here, the trial court waited eight days after its decision to continue the case to note the continuance in the docket, which entry reflects only that the case would be continued to April 10. Another docket entry was made on March 27, yet, again, the notation simply mentions a crowded docket without further explanation. Compliance with Rule 28.3 occurred only in the trial court’s order of April 10, the rescheduled trial date, which was, as we stated, nine days past the speedy trial period. We find the trial court’s order to be untimely and contrary to the intent of Rules 28.3(b) and (i).

Furthermore, notwithstanding the fact that the order was untimely, the circumstances enumerated therein were not “exceptional.” No explanation was offered as to why the case could not have been tried during the week immediately following the Moore trial, and before the last week in the month when the trial court was required to travel to other counties.

Lastly, the State is incorrect in implying that Hicks’ failure to ask for a speedy trial, and his delay in responding to the State’s motion for excluded time until the day after the time for speedy trial had expired, constituted a waiver of his right to a speedy trial. Rule 28.1(f) states that the defendant’s failure to move for a dismissal only constitutes a waiver if not made “prior to a plea of guilty or trial. . .” Hicks’ motion was made well in advance of his trial and was thus timely raised. See Duncan v. State, 294 Ark. 105, 740 S.W.2d 923 (1987).

We also note that the letter from Hicks’ attorney, acknowledging the trial’s continuance, did not operate to Hicks’ detriment. We have said that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to count as excluded time attributable to the defendant. See McConaughy v. State, supra; Rule 28.3(i). Here, however, Hicks’ attorney did not consent to a trial date past the speedy trial period, but merely asked to be notified as soon as the new date was determined. There is no indication in the record that defense counsel knew, when he consented to the continuance, that the trial would be continued past the required time period, and we cannot view the letter as a “delaying act.”

Based on the foregoing reasons, we reverse the jury’s verdicts and dismiss the case.

Hays, Glaze and Corbin, JJ., dissent.

Donald L. Corbin, Justice,

dissenting. I would affirm. Appellant’s time for a speedy trial began to run on April 1,1989, the date of his arrest. He would have to have been tried on or before April 1, 1990, unless there was an excludable period of delay.

On February 1, 1990, both sides announced ready for trial. On February 12, 1990, trial was set for March 14, 1990. On March 13,1990, defense counsel was notified that the March 14, 1990 trial date was continued and would be rescheduled at a future date. A docket entry was made on March 27,1990, stating that the trial was continued due to the crowded docket. Although it was entered prior to the expiration of the speedy trial period, Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989), this docket entry in and of itself was clearly inadequate because exceptional circumstances were not stated by the trial court as required by Ark. R. Crim. P. 28.3(b). Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987). However, the exceptional circumstances were stated in the trial court’s order entered April 10, 1990.

On April 10, 1990, the trial judge entered a written order fully explaining the exceptional circumstances surrounding the delay and for continuing the case until April 10, 1990, to-wit:

The Court scheduled the matter of State of Arkansas v. Charles A. Moore, No. CR-89-147, for trial on March 13,1990. All trials are scheduled for a one day to complete. Because the Moore trial required two days to complete, this matter was continued from its setting. Both parties had announced ready for trial previously. However, neither party objected to the continuance.
The Court was unable to rescheduled this matter for trial prior to April 10, 1990. Being within a Judicial Circuit comprised of six counties and having jurisdiction over all felony criminal matters in the Circuit, the Court must travel to each county on a monthly basis to tend to pending cases. It is well established that the Court travels the Circuit the last week of each month for these purposes and such occurred the last week of March 1990.
Additionally, the Court has scheduled trials in Calhoun County, Arkansas for the period of April 2-9, 1990. This matter could not have been rescheduled prior to April 10, 1990.

Given the facts of this case, I would exempt this case from such rigid and confining rules. The docket was indeed congested and exceptional circumstances did exist as reflected in the April 10, 1990 order.

It should also be noted that appellant was notified by telephone on March 13, 1990, that the case had been continued and appellant requested that he be given as much advance notice of the rescheduled date as possible. The state filed a motion to exclude the period on speedy trial grounds on March 23, 1990. The appellant did not respond to this motion until April 2, 1990 — one day after the time for speedy trial had run without an excludable period.

As noted by the state, this case is an extreme example of an appellant who did not ask for a speedy trial — who, by coincidence or by design, did not file an objection to the continuance based upon a crowded trial docket, until the first day after the twelve month period had expired. As the state pointed out in the defendant’s motion to dismiss, the appellant did not allege any prejudice. The period of delay appellant argues is impermissible is nine days. In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court declared that four factors should be considered in determining whether a defendant has been denied his right to speedy trial: the length of delay; the reason for the delay; the defendant’s assertion of his right; and prejudice to the defendant. Clearly, all four of these factors weigh in the state’s favor. Based on these factors, I would conclude that appellant has not been denied his right to a speedy trial.

Hays and Glaze, JJ., join in this dissent.


author: Robert H. Dudley, Justice.

text:
    Mark TOVEY v. CITY OF JACKSONVILLE
    90-279
    808 S.W.2d 740
    Supreme Court of Arkansas
    Opinion delivered May 6, 1991

      Kaplan, Brewer & Maxey, by: Philip E. Kaplan, for appellant.

      Robert E. Bamburg, for appellee.
   Robert H. Dudley, Justice.

Veronica Blanchard complained to the Jacksonville Police Department that appellant Mark Tovey, a Jacksonville police officer, had sexual intercourse with her while he was on duty. The Internal Affairs Division of the police department conducted an investigation of the alleged incident. A report on the investigation was prepared and given to the chief of police. As a result, the chief suspended appellant from the force without pay for ten (10) days and placed him on probation for one year. Appellant appealed the disciplinary action to the Civil Service Commission of Jacksonville. After a hearing, the Commission increased the period of suspension to thirty (30) days without pay. Appellant appealed that decision to the circuit court. The circuit court upheld the action of the Commission. We affirm the circuit court.

Appellant first argues that the trial court erred in finding that the Civil Service Commission had the authority to increase the disciplinary punishment imposed by the police chief.

Historically, civil service commissions have been authorized to modify disciplinary penalties imposed by a police chief. In Civil Serv. Comm’n v. McDougal, 198 Ark. 388, 129 S.W.2d 589 (1939), charges were filed with the commission alleging that a police officer was drunk on the job. The commission notified the police chief and directed him to suspend the officer immediately. The police chief did so, but nine (9) days later informed the commission that he had restored the officer to work status. The commission told the officer that the charges had not been disposed of and instructed him not to return to work. The officer demanded a hearing, after which the commission discharged him. On appeal to circuit court, the officer argued that the right to discipline rested entirely with the chief of police and that the commission was without authority to proceed. The trial court agreed with the officer’s argument, but we reversed, explaining:

It is true § 4 provides that all employees in the department shall be governed by rules and regulations set out by the chief, “. . . after such rules and regulations have been adopted by the governing bodies,” etc., but this does not mean that when the Commission has approved expressed standards of conduct, as to which the chief of police has a duty of enforcement, the Commission is deprived of all authority, and must supinely acquiesce in any policy of discipline the chief may determine is proper. Certainly that official’s power of supervision cannot rise above the source from which it was derived.
If we should affirm the lower court’s judgment, we would say that the Commission (to which has been delegated authority to make necessary reasonable rules to carry into effect the intent of civil service) once having made its rules, and having designated the chief of police executive head of the department, with power “. . . to establish rules and regulations for the police department and to discipline those under his authority for violation of such rules and regulations,” has thereby surrendered complete control of the department to such chief an abdication not contemplated by the statute. Effect of this argument, if conceded, would be to say that once the chiefs rules have been approved by the Commission, the creative body automatically loses its supervisory powers, and must abide the judgment or even the caprice of its own agent except in matters of appeal.
If this construction should be approved, then regardless of the nature of an offense charged against a member of the police force, the Commission could only refer the complaint to the chief for such administrative disposition as that officer might think proper. Assuming a serious infraction, and that charges against the accused should be dismissed with a mild admonition or a mere reprimand, there would be none to appeal. The accused could hardly be expected to disagree with such a verdict, and citizens and the Commission would be bound by the chief.

( Emphasis added.) McDougal, 198 Ark. at 394-96. See also Malvern Civil Serv. Comm'n v. Bass, 252 Ark. 178, 477 S.W.2d 842 (1972). Similarly, we have held that a circuit court has jurisdiction to modify punishment fixed by the civil service commission. City of Little Rock v. Hall, 249 Ark. 337, 459 S.W.2d 119 (1970).

The foregoing holding, and its reasoning, establish that a civil service commission is authorized to modify, by increasing or decreasing, the punishment imposed by a police chief. However, the opinion in McDougal contains a paragraph which appellant relies upon in making his argument:

Act 28 provides for suspensions “for not longer than thirty days.” Under the Commission’s rules, and the law, we think the chief would have the right, irrespective of the Commission, to resort to suspension of an insubordinate or otherwise offending officer for the period mentioned, and unless the chief s action in so doing was arbitrary, the Commission would be bound thereby, in so far as the subject of discipline was concerned.

(Emphasis added.) McDougal, 198 Ark. at 394-95. This paragraph is contrary to the quoted reasoning that surrounds it, and can only be described as perplexing dicta. To the extent this paragraph may be in conflict with this opinion, it is overruled.

Appellant additionally asserts that regardless of whether the commission in the past had the authority to modify the punishment, it does not now have that authority because the governing statute, Ark. Code Ann. § 14-51-301 (c) (Supp. 1989), has been amended to provide:

(c) The commission shall adopt such rules not inconsistent with this chapter for necessary enforcement of this chapter, but shall not adopt any rule or rules which would authorize any interference with the day-to-day management or operation of a police or fire department.

(Emphasis given to show portion added by 1989 amendment.) Appellant argues that in increasing his suspension the commission interfered with the day-to-day management of the police department, something it is forbidden to do under the amended statute. The argument overlooks the fact that the commission is expressly charged with enforcing the rules and regulations governing police departments. Ark. Code Ann. § 14-51-301 (1987). In addition, the General Assembly is presumed to be familiar with the holdings of this Court in enacting legislation. McEntire & Sons, Inc. v. Hart Cotton Co., 256 Ark. 937, 511 S.W.2d 179 (1974). If the General Assembly had intended to eliminate commission authority to modify disciplinary penalties, it would have made such an intention clear as such a change would represent a significant departure from our case law. In sum, the modification of punishment, after a statutory hearing, cannot be construed as “interference with the day-to-day management or operation of a police or fire department.” Instead, it is the statutorily authorized enforcement of a regulation.

Appellant next argues that the trial court erred in finding that he engaged in sexual conduct with Ms. Blanchard while on duty. Our standard of review in cases of this nature is to determine whether the trial court’s finding of fact is clearly against the preponderance of the evidence. ARCP Rule 52; Dalton v. City of Russellville, 290 Ark. 603, 720 S.W.2d 918 (1986). The finding is not clearly erroneous.

Appellant set out numerous alleged ambiguities and contradictions in the testimony; however, the determination of credibility rested with the circuit court, not this Court. The circuit court found Ms. Blanchard’s recorded testimony from the commission hearing to be credible. That testimony is, in part, as follows:

A. I had someone else call him. I had my boss at Pizza Pro call. He called the police department and the radio dispatcher took the message for Sergeant Tovey to contact . . . Pizza Pro.
Q. And did Mark Tovey come to Pizza Pro at that time?
A. He showed up with his lights on.
Q. With his blue lights on?
A. Yes.
Q. Was he in uniform?
A. Yes, sir.
Q. And was in a patrol car?
A. Yes, sir. He was in his patrol car.
Q. And asked you to meet him at Paradise Park. Is that right?
A. Follow him.
Q. Follow him. Did you follow him to Paradise Park?
A. Yes.
Q. What happened?
A. He pulled in. There’s a clump of trees right near the opening, and he pulled in and asked me to park in front of him. And I got out of the car and he said, “Stay here a minute.” And he went over and went to the bathroom in the trees. And I waited by the car and he came back and we started kissing and it didn’t take very long and then we had intercourse.

Affirmed.


author: Steele Hays, Justice.

text:
    Robert FAIRCHILD v. STATE of Arkansas
    CR 90-302
    808 S.W.2d 743
    Supreme Court of Arkansas
    Opinion delivered May 6, 1991

      William R. Simpson, Jr., Public Defender, Llewellyn J. Marczuk, Deputy Public Defender, by: Jerry J. Sailings, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

The appellant, Robert Lee Fairchild, was charged and convicted of rape and kidnapping. Having been convicted previously of four or more felonies, he was sentenced as a habitual offender to a term of forty years on each offense, the sentences to be served concurrently. Fairchild’s only contention on appeal is that there was insufficient evidence to sustain his conviction of kidnapping. We disagree.

On February 10, 1990, Fairchild approached the victim, Jeffery Beatty, in the vicinity of the bus station and invited Beatty to his house, where for some two hours they ate, drank beer and, at Fairchild’s suggestion, looked at a magazine containing sexually explicit photographs. Then Fairchild brought out a red robe and asked Beatty to take off his clothes and put it on. Beatty refused and started to leave. As Beatty reached the door Fairchild grabbed him, pressed a butcher knife to his stomach and told him he was not leaving until Fairchild got what he wanted, what he had brought him there for in the first place. Fairchild struck Beatty twice on the left side of his head, forced him to remove his clothes and lie face down on the kitchen floor where Fairchild sodomized him.

At that point Fairchild’s sister knocked from inside a bedroom and asked if she could come out. Fairchild told her to wait as the two men hurriedly put on their clothes. The woman began cooking and Beatty, on the pretext of getting some air, managed to unlock the door and run. Fairchild caught him a few blocks away and Beatty was forced, again at knife point, to return to the house. Evidently the episode was seen by a passing motorist who reported the incident to the police. Back at the house Beatty began pleading with Fairchild’s sister to convince Fairchild to release him. Fairchild at first refused, then seemed willing, but as Beatty started toward the door he saw Fairchild reaching for the knife and he backed away from the door. At that point the police arrived.

Fairchild was charged with Ark. Code Ann. § 5-11-102(a)(4) (1987) which provides in pertinent part:

[A] person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of . . . engaging in . . . deviate sexual activity, or sexual contact with him.

In order to sustain a conviction for kidnapping the state must prove that the restraint exceeded that normally incidental to the rape. Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988). The purpose of the restraint may be inferred from circumstantial evidence. Jackson v. State, 290 Ark. 160, 717 S.W.2d 901 (1986).

In Summerlin v. State, supra, we held that the evidence was insufficient to support a kidnapping charge because the restraint was not greater than that which the state was obliged to prove on its attempted rape charge against the appellant. The victim in Summerlin was jogging in a park when she observed the appellant completely nude standing on the opposite side of the road. As she ran past him he grabbed her and pulled her to the ground. The appellant and the victim struggled briefly but she managed to break loose and escape.

In marked contrast to Summerlin, the facts in this case reflect a substantial interference with Beatty’s liberty beyond that necessary to accomplish the rape itself. When Beatty was chased several blocks by Fairchild and, again at knife point, forced to return to the house, the reasonable inference is that Fairchild’s purposes were identical to those he had earlier demonstrated. Certainly from this point on there was a substantial interference with Beatty’s liberty with the purpose of engaging in sexual contact as proscribed by Ark. Code Ann. § 5-11-102 (1987). Additionally, while Fairchild’s actions were ostensibly hospitable, his subsequent conduct and remark about why he had brought Beatty to his house, supports the conclusion that he had sexual designs on Beatty from the outset. Arkansas Code Ann. § 5-11-101 (1987) makes it clear that “restraint without consent” as used in kidnapping and related offenses includes restraint by physical force, threat or deception.

We readily conclude that the evidence sustains the judgment of conviction for the offense of kidnapping independently of the crime of rape.

Affirmed.