author: Frank Holt, Justice. Darrell Hickman, Justice,

text:
    Lawrence SMITH v. STATE of Arkansas
    CR 82-145
    648 S.W.2d 490
    Supreme Court of Arkansas
    Opinion delivered April 11, 1983

      Williamson, Bailé"Bird, by: Michael W. Lonsberry, for appellant.

      Steve Clark, Atty, Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was convicted of capital murder. Ark. Stat. Ann. § 41-1501 (Repl. 1977). The jury fixed his punishment at life imprisonment without parole. We reverse.

Vera Rhoden was brutally murdered in her home on June 6, 1980, during the course of an apparent burglary and robbery. She died from repeated blows to the head with a claw hammer. In April 1981 Freddie Lee Hendrix was arrested on an unrelated charge of aggravated assault. While he was incarcerated in the county jail and before he had obtained counsel, he signed an unsworn statement implicating the appellant, as well as himself, in the murder of Mrs. Rhoden. Nine days before appellant’s trial, Hendrix bargained a guilty plea, receiving a sentence of life,imprisonment. Thus, he was no longer a co-defendant at the appellant’s trial. In substance, his unsworn, written statement to the sheriff and his deputy was that he received ten dollars from the appellant for acting as a lookout while the appellant broke into the Rhoden home and killed and robbed her. At trial, Hendrix repudiated his statement, denying that he was present at the murder scene. He stated that he had signed the written statement under duress, and he had lied to the sentencing judge when he pled guilty on his plea bargain. He testified that his only knowledge about the crime was what he had learned from a person named Garland Woodberry, who was killed prior to trial in an unrelated incident. Woodberry had related to him, Hendrix, that appellant had committed the crime while Woodberry acted as a lookout.

When Hendrix recanted on the witness stand, the prosecution sought to introduce into evidence the written statement previously given to the sheriff and his deputy. Initially, the trial court sustained the objection of defense counsel on the ground that the written statement was hearsay. However, the prosecution later was permitted to read the statement to the jury over the objection of the defense. On appeal the state argues Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981), permits the admission into evidence of the written statement for pürposes of impeachment. We do not think Chisum is controlling here, because it is manifest from the record that Hendrix’s written statement was read to the jury, not for purposes of impeachment, but as substantive evidence to prove the truth of the matters asserted in it. When the defense moved for a directed verdict at the close of the state’s case, it appears that both attorneys treated the written statement as substantive evidence in argument to the trial court. Furthermore, the jury was instructed that Hendrix was an accomplice whose testimony required corroboration to sustain a verdict of guilty. This instruction presupposes the written statement was substantive evidence and invites the jury to so consider it. It appears that the prosecutor, in his argument to the jury, treated the written statement as substantive evidence of appellant’s guilt. We are convinced that the written statement made to the sheriff and his deputy was used as substantive evidence to prove the truth of the matters asserted in it. It was not given under oath and subject to the penalty of perjury at a trial, hearing, other proceeding, or deposition, so far as the record before us reflects. Therefore, it was hearsay. Ark. Stat. Ann. § 28-1001, Rule 801 (Repl. 1979); Patterson v. State, 267 Ark. 436, 591 S. W.2d 356 (1979); and Brown v. State, 262 Ark. 298, 556 S. W.2d 418 (1977). This statement does not come within any exception to the hearsay rule. As we said in Chisum v. State, supra:

It was formerly our rule that inconsistent statements were admissible only for impeachment and not as substantive evidence. . . . That limitation has now been abolished entirely in civil cases and has been similarly abolished in criminal cases when the prior statement was given under oath and subject to the penalty of perjury. Uniform Evidence Rule 801 (d) (1). The common law rule was not otherwise changed by the Uniform Rules and still prevails in criminal cases when the prior statement was not under oath ....

Accordingly, the trial court erred by allowing the statement to be read to the jury.

The appellant also argues the trial court erred by admitting into evidence certain photographs of the victim as she was found by the investigating officers. The trial court excluded numerous other photographs including some taken after the victim was moved from the scene of the crime. The appellant argues the prejudicial effect of the photographs, which were admitted into evidence, substantially outweighed their probative value, since the appellant was willing to stipulate to the cause of death, so they should have been excluded from evidence. Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1979). The decision to admit photographs into evidence lies within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion; and a photograph is not inadmissible because it is cumulative or unnecessary due to admitted or otherwise proven facts. Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982). Here, these photographs were relevant and helpful to the jury in understanding the testimony of the witnesses. We cannot agree with the appellant that their probative value is outweighed by any prejudicial effect they might have had. No abuse of discretion is demonstrated.

Appellant insists that he was entitled to a mistrial due to certain remarks made by the prosecuting attorney which were designed to focus the jury’s attention on appellant’s failure to testify. We consider it unnecessary to discuss this contention since it is unlikely to occur upon a retrial.

We have reviewed the transcript for rulings adverse to appellant and find no other error prejudicial to his rights. Supreme Court Rule 11 (f), Ark. Stat. Ann. Vol. 3A (Repl. 1977).

Reversed and remanded.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. This case should be compared to the case of Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983); a case which is inexplicably ignored by the majority. Here there is no question that the statement was admitted as substantive evidence and not for purposes of impeachment. Therefore, the fact the statement was read to the jury is irrelevant. If it had been used to impeach, it could have been read. Ark. Stat. Ann. § 28-1001, Rule 613.


source: Caselaw Access Project

author: Darrell Hickman, Justice. Steele Hays, Justice,

license: Public Domain

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY v. Verlin AKERS et ux
    83-61
    648 S.W.2d 492
    Supreme Court of Arkansas
    Opinion delivered April 11, 1983
    [Rehearing denied May 9, 1983.]

      William R. Wilson, Jr., P.A., by: William R. Wilson, Jr., for appellant.

      Gardner ir Gardner, by: Richard E. Gardner, Jr., for appellees.
   Darrell Hickman, Justice.

The question is a procedural one: Whether the trial court erred in finding that an affirmative defense had not been pleaded. Government Employees Insurance Company brings this appeal from the trial court’s decision denying Government Employees from defending a claim by a homeowner for fire damage by presenting evidence of arson — that one of the Akerses caused the house to be burned. The trial court found that the appellant had not pleaded arson or willful burning of the residence by the homeowners, Verlin Akers and his wife, the appellees, as an affirmative defense. On appeal we cannot say the trial court abused its discretion and that is actually the question to be answered. It was conceded that Government Employees had an insurance policy in effect on the dwelling; that the house did, in fact, burn, and that there was a loss of a specified sum of money. When the appellees filed their lawsuit against Government Employees on the basis of the policy, Government Employees filed a general denial. After several pleadings were filed, Government Employees filed an amendment to its answer stating that the loss alleged by the plaintiffs was not “within the coverage, terms, and conditions of the policy of insurance.” The appellees filed a motion to require the appellant to make a more definite and certain answer, and the court ordered the appellant to do so within fifteen days. The appellant responded stating that:

... [T]he loss suffered by the Plaintiffs was not covered under this policy. The policy explains in detail the perils insured against and the exceptions thereto. The loss sustained by the Plaintiffs was not such a loss as insured by the Defendant.

So the appellant never affirmatively pleaded arson — or set out the policy provision it was relying on. But the appellant argues this is only technically true, that the trial court could have decided otherwise and indeed changed its mind just before trial.

The case was set for trial in March of 1981, and before trial the appellees filed a motion in limine to prevent Government Employees from using the defense of arson since it had not been specifically pleaded even though there was no written order. The court apparently refusd to grant the motion. The case was continued and j ust before it was to be tried in November of 1981, the appellees filed the same motion in limine. Upon reconsideration, the court decided that Government Employees had not specifically pleaded the defense of arson or any specific provision of the policy that would preclude recovery and granted the motion.

On appeal Government Employees is represented by another attorney and it is argued that the appellees were not surprised since the motion in limine mentioned arson, and therefore, there was no justifiable basis for the trial court’s decision. But, as the court pointed out, there are rules of procedure and the appellant did not plead an affirmative defense as it should have. It is argued that the motion in limine placed in issue the question of arson and a liberal construction of the Rules of Civil Procedure should have allowed Government Employees to proceed with its defense. There is no doubt that arson was mentioned in these pleadings but a party is entitled to know precisely what affirmative defense will be relied upon and none was pleaded in this case.

The answer filed by Government Employees in this case put no specific provision of the policy in issue. A general denial by an insurance company defending a policy merely puts the plaintiff to his proof. An affirmative defense such as an exception in the policy must be specifically pleaded. Universal Life Insurance Company v. Howlett, 240 Ark. 458, 400 S. W.2d 294 (1966). It is true the trial judge did change his mind but ultimately made the right decision. And the fact that he changed his mind is not necessarily reversible error. Nance v. Flaugh, 221 Ark. 352, 253 S.W.2d 207 (1952). It was purely a discretionary decision by the trial court which we cannot find manifestly wrong.

Affirmed.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I could readily side with the majority in this case if there had been any surprise or prejudice, or some disadvantage resulting from the appellant’s failure to specifically plead the defense of arson. But there was none, as the trial court noted. The appellee knew the appellant’s defense was a claim of arson and for the trial court to grant a motion in limine on the morning of trial, the same motion it had earlier denied, defeats the spirit of ARCP Rule 8 (f), that pleadings are to be “liberally construed so as to achieve substantial justice.”

I concede the trial court’s discretion in these matters, but where that discretion is exercised restrictively so as to deprive a litigant of any opportunity to prove what might have been a meritorious defense, that discretion ought to be reviewed carefully on appeal, and any doubts resolved against one litigant being denied its “day in court”, as we like to term it, a right regarded as fundamental under our system.

The indiscriminate, and growing, use of motions in limine aimed at striking an entire defense is thoughtfully addressed by the Supreme Court of Iowa in Lewis v. Buena Vista Mutual Insurance Association, 183 N.W.2d 198 (Iowa 1971). It makes good reading for judge and practitioner alike. The case is strikingly similar to the one before us, the only material difference is in the outcome. There, the trial court granted a motion in limine on the morning of trial so as to prevent an insurer from proving arson in defense of a fire loss. Noting that the plaintiff was not surprised by the claim of arson because pretrial discovery included references to arson and fire marshal reports, the Supreme Court of Iowa reversed and remanded the case for trial, as we should do.


author: John I. Purtle, Justice.

text:
    COUNTRY PRIDE FOODS LIMITED v. MEDINA & MEDINA
    83-27
    648 S.W.2d 485
    Supreme Court of Arkansas
    Opinion delivered April 11, 1983

      Vickery br Jones, P.A., for appellant.

      Compton, Prewett, Thomas br Hickey, by: Robert C. Compton, for appellee.
   John I. Purtle, Justice.

The trial court dismissed appellant’s complaint for a declaratory judgment sua sponte on the grounds: 1) that there was another action pending, and 2) pursuant to Ark. Stat. Ann. § 27-2502 E. (Repl. 1979), inconvenient forum. We agree with the appellant’s argument that the court should not have dismissed the complaint without giving appellant an opportunity to present evidence as to the proper forum.

Appellee was a broker in Puerto Rico operating on behalf of the appellant. The relationship was terminated by appellant for what it felt was just cause. Appellee disagreed and filed suit in federal district court in Puerto Rico. Subsequently the appellant filed suit in Union County Circuit Court for a declaratory judgment. The appellee filed a motion to dismiss because there was another action pending, contending the Arkansas trial court lacked jurisdiction. A hearing was held on the motion to dismiss. The court found there were sufficient activities on the part of appellee in Arkansas to give rise to jurisdiction but stated that in the interest of substantial justice the complaint should be dismissed pursuant to Ark. Stat. Ann. § 27-2502 E. There had been no motion by appellee to dismiss because of an inconvenient forum.

The question presented on appeal is whether the court should have sua sponte dismissed the complaint. We hold that it was error to dismiss the complaint without hearing evidence as to the proper forum. In Running v. Southwest Freight Lines, Inc., 227 Ark. 839, 303 S.W.2d 578 (1957) we held that it was the duty of one wishing to avail himself of the doctrine of forum non conveniens to produce evidence to sustain the allegations of the motion. In Running we held that the pleadings and stipulations alone were insufficient to form a basis upon which the court could decide the issue of inconvenient forum. The trial court’s discretion must necessarily be based upon such factors as convenience to the parties in obtaining documents and witnesses, the expense involved in trying the case, questions of foreign law, trial docket and other matters. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). As stated in Harvey, the application oí forum non conveniens lies within the sound discretion of the trial court and we will disturb the decision only upon a showing of abuse of discretion. However, the record must show the matters considered by the court in applying the doctrine before we can make a decision. In the case before us we do not know what, if any, facts the court considered when it based its decision upon the interests of substantial justice. There is no reason why a court should not be allowed to raise the doctrine of forum non conveniens on its own but its decision must be supported by facts in the record. Haynes v. Carr, 379 A.2d 1178 (D.C. App. 1977).

Appellant contends the court erred in dismissing the complaint because another action was pending in federal court in Puerto Rico. We agree that the trial court was not compelled to dismiss the action because of the other proceeding in Puerto Rico. We have held that federal district courts and state courts are separate jurisdictions and identical cases between the same parties may be pending in each court at the same time. Carter v. Owens-Illinois, Inc., 261 Ark. 728, 551 S.W.2d 209 (1977). In situations where separate causes of action are pending at the same time the first one to judgment is binding on the parties. Carter v. Owens-Illinois, Inc., supra.

The case is remanded to the trial court with directions to consider evidence and facts necessary to invoke the doctrine of forum non conveniens, if the court or either of the parties desire to rely upon the doctrine.


author: Robert H. Dudley, Justice.

text:
    Conrad Leon SMITH, Jr. v. Dale EDWARDS
    82-279
    648 S.W.2d 482
    Supreme Court of Arkansas
    Opinion delivered April 11, 1983
    [Rehearing denied May 9, 1983.]

      Jim O’Hara, for appellant.

      Rose Law Firm, P.A., for appellee.
   Robert H. Dudley, Justice.

Rebecca Strickland was killed in a Woodruff County vehicle accident on January 20, 1978. On December 22, 1980, her estate filed a lawsuit against; (1) Conrad Leon Smith, the driver of the car in which she was a passenger, the appellant here; (2) the owner of that car; and (3) Dale Edwards, the driver of the other vehicle, the appellee here. The plaintiff obtained valid personal service on all of the defendants with appellee Dale Edwards receiving at his correct address in Missouri a copy of the complaint and warning order. Both appellant Smith and appellee Edwards answered the plaintiff’s complaint.

The basis of this appeal, however, is a cross-complaint filed by appellant Smith against appellee Edwards. Appellant filed the cross-complaint against appellee on January 19, 1981, one day before the action was barred by the statute of limitations. Appellant caused a summons to be directed to the sheriff of Clay County who promptly reported to appellant’s counsel that appellee had moved out of the state. The attorney representing appellant on his cross-complaint then filed an affidavit for a warning order alleging that, after diligent inquiry, he was unable to locate the cross-defendant. Appellant then attempted to obtain constructive service under ARCP Rule 4 (f). Eight months later, when appellee first learned of the cross-complaint, he immediately filed a motion to dismiss. He alleged that as a result of lack of proper service a cause of action on the cross-complaint was not commenced within the period of limitations. The trial court dismissed the cross-complaint. We affirm. This case was certified to the Supreme Court by the Court of Appeals pursuant to Rule 29 (1) (c) since it requires an interpretation of part of the rules oh summons and service, ARCP Rules 3 and 4.

Appellant’s cross-complaint was filed within the period of limitations by one day but was not properly commenced within this period. ARCP Rule 3 is the rule which governs the issue of whether the action was commenced within the period of limitations. It provides:

COMMENCEMENT OF ACTION — A civil action is commenced by filing a complaint with the clerk of the proper court who shall note thereon the precise date and time of filing; provided, that an action shall not be deemed to have been commenced as to any defendant not served with process in accordance with these rules within sixty (60) days of the filing of the complaint, unless within that time the person filing the complaint has made an effort, that is noted of record in the clerk’s office, to obtain service by a different method provided for in Rule 4. In no event shall the time for obtaining service be extended beyond ninety (90) days without leave of court and for good cause shown.

No leave of court was obtained extending the time of service beyond 90 days. Therefore, in order to commence his cross-complaint within the period of limitations the appellant had a maximum of 90 days from the filing of the complaint in which to complete service of process. The appellee, who was the cross-defendant, resided outside this state at all material times and service by actual notice was not had upon him by any one of the authorized methods. See ARCP Rule 4 (e) (1), (2), (3), (4) and (5). Instead, appellant sought to have service by constructive notice. ARCP Rule 4 (f), the rule governing constructive service, provides:

Service Upon Defendant Whose Identity or Whereabouts Is Unknown: Where it appears by the affidavit of a party or his attorney that after diligent inquiry, the identity or whereabouts of a defendant remains unknown, service shall be by warning order issued by the clerk and published weekly for four (4) consecutive weeks in a newspaper having general circulation in a county wherein the action is filed and by mailing a copy of the complaint and warning order to such defendant at his last known address by any form of mail requiring a signed receipt.

This rule permits constructive service by warning order only if the whereabouts of the defendant is unknown “after diligent inquiry.” The affidavit signed by appellant’s attorney recites the standard phrase that the location of appellant was unknown “after a diligent and reasonable inquiry.” A mere recitation, however, is not enough. As Comment 12 to Rule 4 states:

The burden is on the party attempting service by publication to attempt to locate the missing or unknown defendant. Such party or his attorney is required to demonstrate to the court, by affidavit or otherwise, that after diligent inquiry, the defendant’s identity or whereabouts remains unknown.

The trial court’s finding that appellant did not make a diligent search is supported by the evidence and is not clearly erroneous. ARCP Rule 52; Alley v. Rodgers, 269 Ark. 262, 599 S.W.2d 739 (1980). The proof below was that the attorney ad litem on the original complaint located appellee merely by telephoning one of the original plaintiff’s attorneys. Appellant did not contact the same attorney. The report of the attorney ad litem on the original complaint filed on March 9, 1981 contained appellee’s correct address in Missouri. Appellant did not utilize the information in order to locate appellee and give him actual notice. The accident report, which appellant’s attorneys possessed, recited appellee’s Missouri driver’s license number. His Missouri address was written on his driver’s license, which was on file with the Missouri Department of Revenue. No effort was made to obtain the appellee’s address through the revenue department. The accident report contained the name and location of appellee’s employer. No inquiry of appellee’s address was made of the employer. Moreover, appellant’s attorney received a copy of appellee’s answer to the plaintiff’s original complaint on March 16, 1981, which was well within the 90 days allowed Smith for commencing his action on the cross-complaint under Rule 3. At that time, appellant could have located appellee by simply inquiring of appellee’s attorney of record. The proof does not reflect such an inquiry. We affirm the trial court’s holding that appellant did not make a diligent inquiry to locate the appellee and cause him to be served in a manner giving actual notice. Since service with actual notice was not completed within 90 days from the date of filing, no extension of time for that type of service was obtained, and no diligent effort was made to locate appellee in order to give him actual notice, the action was not commenced within the period of time allowed by the statute of limitations. Rules 3, 4 (e) and 4 (f).

Appellant next contends that his cross-complaint should not have been dismissed because appellee in fact knew about the filing of the cross-complaint. We find no merit in the argument. It has long been the law in Arkansas that a cross-claim constitutes a separate and distinct cause of action. In order to give the court personal jurisdiction over the cross-defendant it is essential to have service of process on the cross-defendant even when, as here, the cross-defendant is also an original defendant. Moore v. Owens, 268 Ark. 324, 597 S.W.2d 65 (1980); Miller v. Mattison, 105 Ark. 201, 150 S.W. 710 (1912) citing Pillow v. Sentelle, 49 Ark. 430, 5 S.W. 783 (1887); Ringo v. Woodruff, 43 Ark. 469 (1884). Service of process or a waiver of that service is necessary in order to comply with the Due Process requirements of the United States Constitution. Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972).

Finally, appellant argues that since the allegations of plaintiff’s complaint are essentially the same as the allegations contained in the cross-complaint, appellee’s answer to the complaint should be deemed an answer to appellant’s cross-complaint. Appellant relies on Firestone Tire & Rubber Co. v. Little, 269 Ark. 636, 599 S.W.2d 756 (Ark. App. 1980) and Southland Mobile Home Corp. v. Winders, 262 Ark. 693, 561 S.W.2d 281 (1978). In both cases, a co-defendant was granted relief from a default judgment on the theory that the answer of a co-defendant will inure to the benefit of the non-answering co-defendant if tha answer states a defense that is common to both defendants. These cases are based on the Common Defense Doctrine which originated in England around 1600. See Firestone Tire & Rubber Co. v. Little: Overextension of the Common Defense Doctrine, 35 Ark. L. Rev. 328 (1982). The rationale of these cases is not applicable to a situation where the defendant fails to answer a cross-complaint filed against him. Unlike co-defendants defending against a common claim, the original plaintiff and the cross-complainant are separate parties stating separate and distinct causes of action. The cross-complainant and the cross-defendant are adverse parties rather than defendants with common interests. Therefore, the answer filed by appellant on the plaintiff’s complaint did not constitute a general appearance by appellee on appellant’s cross-complaint.

Affirmed.


author: Per Curiam. Steele Hays, Justice,

text:
    In Re: The Matter of Interest on Lawyers’ Trust Accounts
    82-276
    648 S.W.2d 480
    Supreme Court of Arkansas
    Opinion delivered April 11, 1983
   Per Curiam.

The Arkansas Bar Association, through its Interest on Lawyers’ Trust Accounts Committee, petitioned this court to permit the collection and disbursement of interest derived from lawyers’ trust accounts, which are nominal in amount and of short duration. The recipient of the funds would be a nonprofit organization to be created to dispense the funds primarily to provide legal aid to the poor in civil matters, and secondarily, for other specified legal projects. On January 10,1982, in response to the petition we issued a per curiam opinion inviting amicus curiae and other writing on this proposal. The principal responses have been from the Bar Committee that originally petitioned this court, the Arkansas Justice Foundation, Inc., a nonprofit, tax exempt entity which assists and supports free legal services for the poor, and some legal aid offices.

According to the briefs from the Bar Association and the Justice Foundation, the pilot program of the nature proposed here is, in essence, the Florida program. In seven states the highest court or the legislature has authorized a similar plan. Proposals have been disapproved in three states. Similar proposals are under study in the vast majority of the other states. The Florida program was first proposed there in 1971 and authorized in 1978 by the Supreme Court of Florida in In Re: Interest on Trust Accounts, 356 So.2d 799 (Fla. 1978). Alterations were found to be necessary which were made in the following opinions: Matter of Interest on Trust Accounts, 372 So.2d 67 (Fla. 1979); Matter of Interest on Trust Accounts, 396 So.2d 719 (Fla. 1981); and Matter of Interest on Trust Accounts, 402 So.2d 389 (Fla. 1981). See also In the Matter of the Petition of the Minnesota Bar Association, No. A-8 (Minn., December 8, 1982); and Petition of New Hampshire Bar Association (New Hamp., November 24, 1982).

The Florida program, like the present proposal, is voluntary in the sense that attorneys are free to participate or refuse to participate as they see fit. This is acceptable. However, that court’s most recent pronouncement, which gives us great concern, amended the rules to provide that clients need not be notified that their funds are being so used nor can they decline to allow their escrow funds to be used in tlje program. This change was deemed necessary because the Internal Revenue Service ruled that the interest generated from the trust accounts would be taxable to the clients whose funds were used unless the decision whether to participate in the program was removed from the clients. Rev. Rul. 81-209, 26 CFR 1.61-7, provides that interest earned in a plan where the client has no control over the decision to participate would be treated as reportable income only by the receiving entity, not the attorney nor his clients, so long as the funds to be commingled were nominal in amount and held for a short duration. The Florida program and the plan submitted to this court by the petitioner committee provide that once the attorney decides to participate consent by his clients is not required. This eliminates any control the client may have had over the earnings. The petitioner justifies this procedure, as did the Florida court, by the argument that the clients do not currently receive any income from this type of account, so that there is no “taking” of “property” that would trigger the protection of the due process clause of the Constitution; and that for a single client’s funds, nominal in amount, placed in the lawyer’s trust account for a short duration, it is impractical to compute and pay interest to that individual client. In summary, the proposal involves only funds and accounts that presently do not earn interest, and, therefore, the clients lose nothing by the implementation of this program.

While we support the basic concept of allowing this type of trust funds to be placed in interest bearing accounts, we are of the opinion that participation in the program must be conditioned upon notice to and approval from the clients whose funds are so used. The public confidence in their attorneys and the legal profession in general is not likely to be enhanced by the knowledge that lawyers are authorized to use their clients’ funds to generate income in support of projects that the clients may disapprove and certainly cannot control. As American Bar Association President Morris Harrell recently stated in a speech in Seattle, “Our legal system rests so precariously on public confidence that the rule of law itself is threatened by a lack of real understanding by the public.” With respect to the use of client funds to generate income for a worthy legal project, such as here, we think these considerations require that the proponents seek a change in the Internal Revenue Code or the interpretation to enable the plan to be administered in a manner that unquestionably promotes rather than potentially undermines public confidence in the legal profession. Full disclosure of every use of client funds is essential to that much needed confidence. Further, the fact that a person is not currently using his resource to generate income does not give license to others to use that resource to generate income for a purpose, no matter how worthy, without the owner’s consent.

We reiterate that we support the concept of allowing lawyers’ trust funds to be placed in interest bearing accounts to generate income for legal services to the poor and the other purposes proposed in the submitted plan. The Arkansas Justice Foundation, Inc., the Arkansas Bar Association and other proponents are to be commended. Efforts should be made to bring about a change in the federal tax laws or their interpretation in order to permit us to authorize a plan that avoids the difficulties about which we have expressed our concern.

Petition denied.

Hays, J., would grant.

Steele Hays, Justice,

dissenting. I would grant the petition. It has obvious advantages: it is for the public good; it produces earnings from a source that has heretofore produced nothing; it has the support of the bar and several bar related organizations; it has the opposition of no one.

The argument that the client must approve the plan is not without substance, but the objection is more theoretical than real, and I expect it would resolve itself in practice. Clients traditionally have neither received nor expected interest earnings on these short-term funds, which are in relatively small amounts or, if not, are rarely held for more than a few days. Nor has this problem prevented several other states from adopting similar plans.

If, as the majority suggests, the legal profession and its systems are losing the public’s confidence, I think it is not so much the result of our willingness to venture new methods, as an unwillingness to try them.


author: Per Curiam.

text:
    Benjamin BRADLEY v. STATE of Arkansas
    648 S.W.2d 796
    Supreme Court of Arkansas
    Opinion delivered April 11, 1983

      Atchley, Russell, Waldrop Hlavinka, by: A lan Harrel, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

The appellant’s attorney, Allan Harrel, has filed a motion for a Rule on the Clerk. In the motion he admits that it was his fault that the record was tendered late. The attorney for the appellant miscalculated the date the record was due to be filed.

Pursuant to our per curiam concerning belated appeals in criminal cases, 265 Ark. 964 (1979), the Rule on the Clerk is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: George Rose Smith, Justice.

text:
    FAYETTEVILLE SCHOOL DISTRICT NO. 1 et al v. ALCOHOLIC BEVERAGE CONTROL BOARD et al
    82-299
    648 S.W.2d 804
    Supreme Court of Arkansas
    Opinion delivered April 18, 1983

      Everett ir Whitlock, by: John C. Everett, for appellants.

      Donald R. Bennett, for appellee ABC Board.

      Burke & Eldridge, by: John R. Eldridge, III, for individual appellees.
   George Rose Smith, Justice.

In 1981 the principal appellee, Kathleen D. Burke, applied to the Alcoholic Beverage Control Board for permission to transfer her retail liquor outlet from its location in a shopping mall in Fayetteville to a new location on North Garland Avenue near the intersection of Highways 16 and 112. The application was opposed by the appellants — a school district and seven individuals — and by others who signed petitions opposing the application but did not otherwise participate in the proceedings. After a hearing the Alcoholic Beverage Control Board approved the transfer. This appeal from the circuit court’s affirmance of the Board’s decision was transferred to us under Rule 29 (1) (c). We affirm.

The appellants’ main argument for reversal is that the Board’s decision is not supported by substantial evidence. Ark. Stat. Ann. § 5-713 (h) (5) (Repl. 1976). The applicant’s testimony and exhibits show that about 12,000 people live within a one-mile radius of the proposed site; there is no liquor store within that area, which is devoted to both residential and commercial uses; the two nearby highways have a total traffic count of about 20,000 vehicles a day; other liquor stores are closer to public schools than this one will be; and the University, of Arkansas permits adult students to have alcoholic beverages in university housing. Twenty-four photographs show more than that many commercial buildings in the neighborhood, including filling stations, grocery stores, fast-food establishments, and various others. The school district’s protest was presented by the principal of a school that is about four tenths of a mile from the proposed site. She objected not so much to a liquor store as such but to any new business in the area, because increased traffic could be dangerous to pupils walking to school. The third witness who testified objected on those grounds and also the the presence of a liquor store a block and a half from his house.

The Board found that the proposed transfer would be to the “public convenience and advantage,” statutory language not further defined. Ark. Stat. Ann. § 48-301 (Repl. 1977). The reference to the public convenience and advantage evidently means that the interest of the general public is to be considered, not merely that of the applicant. See Gerst v. Cain, 388 S.W.2d 168 (Tex., 1965). Even so, such general language unquestionably invests the Board with much discretionary leeway in deciding whether to approve an application such as this one. Since the record contains affirmative proof supporting the view of each side, we must defer to the Board’s expertise and experience in cases of this kind. In that view there is substantial evidence to support the Board’s decision.

The appellants’ second argument is that the Board had no power to order a continuance on its own motion when an unforeseen question arose during the hearing. We think it fundamental that the Board’s statutory duty to hold a public hearing, Section 48-311 (E), carries with it the implied authority to interrupt the hearing when it is reasonable to do so. “The law necessarily contemplates unavoidable contingencies, illness of parties and witnesses, and similar causes which make it just to grant continuances and unjust to refuse them.” Williams v. Buchanan, 86 Ark. 259, 271, 110 S.W. 1024 (1908). In the absence of any explicit statutory prohibition of a continuance, the Board had the authority to act as it did.

We do not reach the appellants’ third argument — that the Board’s written decision did not include sufficient findings of fact — for the appellants have not abstracted the Board’s decision.

Affirmed.


text:
    BANK OF CABOT v. Mark RAY
    83-25
    648 S.W.2d 800
    Supreme Court of Arkansas
    Opinion delivered April 18, 1983

      Joe O’Bryan, for appellant.

      Lance L. Hanshaw, for appellee.
   George Rose Smith, Justice.

Mark Ray, the appellee, brought this action against the Bank of Cabot for the conversion of a 1967 Pontiac car that Mark, then 20 years old, was rebuilding himself. This appeal from a judgment in Mark’s favor for compensatory and punitive damages comes to the Supreme Court as a tort action. Rule 29 (1) (o). The judgment must be reversed, because the plaintiff failed to introduce any proof of the fair market value of the car.

Mark testified that in 1978 he had a LeMans car which he had damaged beyond repair in a wreck. He bought the 1967 Pontiac for $200 and paid his cousin $350 to put the Lemans engine in the Pontiac. Mark testified to the cost of various parts he bought and installed, but the car was not yet in a condition to be dirven when the bank converted it. There was no testimony by either side about the fair market value of the partly rebuilt Pontiac, but the trial judge overruled an objection on that score, saying that there was no way to give the jury some idea of the market value except by proof of the state of the repairs. The jury was instructed that the measure of damages would be the fair market value of the car, but in the absence of supporting proof the submission of that issue was error. Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979).

There was sufficient evidence to justify the submission of the issue of punitive damages. The bank, as agent for the owners of a house near Cabot, had rented it either to Mark’s girlfriend or to her and Mark together. In seeking to recover possession the bank served a notice to vacate on both Mark and the girl. It directed them to deliver possession on or before September 30 and to “remove all property including cars.” The bank, however, took possession of the house before September 30 and had the Pontiac hauled away and crushed, thinking it to be an abandoned junk car. When Mark went to the house on September 30 and found the car to be missing, he reported it to the police as a stolen car.

In view of the language in the notice to vacate, the bank’s premature repossession, and its precipitate destruction of the car, the evidence was sufficient to support the court’s submission of AMI 2217 on punitive damages, leaving it to the jury to decide whether malice should be inferred. AMI Civil 2d, 2217 (1974). The court, however, should not have used the bracketed reference to the bank’s financial condition, for there was no proof about that matter.

A third point for reversal relates to the plaintiff’s motion that the bank not be permitted to cross-examine Ray about a conviction for the delivery of a controlled substance. The court did not make a final ruling, and until it does so, weighing the impeachment value of the conviction against its prejudicial effect, we are not in a position to say how the trial court should exercise its discretion. The bank’s fourth point is without merit. The trial judge properly refused to give the bank’s requested instruction No. 6, which would have told the jury that Mark Ray was not a tenant — a disputed question of fact.

Reversed and remanded for a new trial.


author: Frank Holt, Justice.

text:
    HERITAGE INSURANCE COMPANY of Lincolnwood, Illinois v. WHITE COUNTY, Arkansas
    83-26
    649 S.W.2d 170
    Supreme Court of Arkansas
    Opinion delivered April 18, 1983
    [Rehearing denied May 16, 1983.]

      Ronald J. Bruno & Associates, for appellant.

      Robert Edwards, Pros. Atty., 17th Judicial District, foi appellee.
   Frank Holt, Justice.

On September 29, 1980 Bobby Wayne Glover, representing himself as a limited surety agent for the appellant, executed a $10,000 bail bond on behalf of Charles Burgess. Burgess failed to appear for trial on December .16, 1980, and the bond was then forfeited by a docket entry. The appellee, in a non-jury trial, was awarded a judgment on the bond on March 30, 1982 against Glover and the appellant, jointly and severally. Hqnce, this appeal.

The appellant first argues the trial court erred in holding that notice to the appellant was not required before forfeiture of the bond. Ark. Stat. Ann. § 43-723 (Repl. 1977) provides:

If the defendant [fails] to appear for trial or judgment, or at any other time when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court may direct the fact to be entered on the minutes, and thereupon the bail-bond, or the money deposited in lieu of bail, is forfeited. (Italics supplied)

As we said in Craig & Schaaf v. State, 257 Ark. 112, 514 S.W.2d 383 (1974), “Under section 43-723, when [the defendant] failed to appear on October 8 and the court entered that fact upon its record, the bond was, in the language of the statute, thereupon forfeited.” Likewise, in Tri-State Bonding Co. v. State, 263 Ark. 620, 567 S. W.2d 937 (1978) we said, “The failure of each of the defendants to appear at the time fixed was sufficient basis for forfeiture of the bond, when noted on the record.” Plainly, the statute and our cases permit forfeiture merely upon failure of the defendant to appear and the entry of that fact on the record. Notice before forfeiture is not required. Here, the judgment results from a civil action instituted by the appellee to collect on the forfeited bond. The appellant had ample notice and opportunity to defend in this action, which it did.

Neither can we agree with the appellant’s argument that the trial court erred in finding that Glover was a limited surety agent for the appellant on September 29,1980. Suffice it to say the requests for admission and answers thereto by the appellant, which were abstracted by the appellee, clearly indicate the appellant admitted that Glover was its limited surety agent on that date. ARCP Rule 36 (b).

Finally, the appellant argues the trial court erred in finding the bail-bond in question was properly executed and authorized by the appellant’s general power of attorney, which was on file at the Arkansas Insurance Department. The argument is that under the general power of attorney filed with the commissioner, Glover only had authority to execute bonds when accompanied by an individual, numbered power of attorney, which was not done here. None of the exhibits presented to the trial court have been abstracted. The exhibits relevant to this point are critical to an understanding of the question presented to us. Therefore, we affirm the trial court on this point pursuant to Rules of the Supreme Court and Court of Appeals, Rule 9 (d) and (e). Van Marion v. Moseley, 259 Ark. 740, 536 S.W.2d 697 (1976). Also see Dyke Industries v. Johnson Const Co., 261 Ark, 790, 551 S.W.2d 217 (1977); Collier v. Hot Springs Savings & Loan Association, 272 Ark. 162, 612 S.W.2d 730 (1981); and Bank of Ozark v. Issacs, 263 Ark. 113, 563 S.W.2d 707 (1978).

Affirmed.


text:
    Lee TAYLOR v. Gayle A. TERRY and Jane TERRY, Individually, ex rel, CHRISTIAN BOOK CENTER, INC.
    83-44
    649 S.W.2d 392
    Supreme Court of Arkansas
    Opinion delivered April 18, 1983
    [Rehearing denied May 23, 1983.]

      Bullock, Hardin & McCormick, for appellant.

      Irwin & Kennedy, by: Robert E. Irwin, for appellees.
   Robert H. Dudley, Justice.

This appeal is from a derivative action by shareholders who asserted a corporate right of action against the president of the corporation. A jury returned a verdict of $35,000 in favor of the corporation. The only point raised on appeal is the sufficiency of the evidence. We affirm. The case was certified to this Court by the Court of Appeals.

In Arkansas, derivative actions by shareholders are provided for by rule, statute, and case law. See ARCP Rule 23.1; Ark. Stat. Ann. § 64-223 (Repl. 1980); Parrish, A Look at the Derivative Suit, 24 Ark. L. Rev. 89 (1970). The shareholder’s suit is one in equity even if the right to be enforced is a legal right of the corporation. Red Bud Realty Co. v. South, 153 Ark. 380, 241 S.W. 21 (1922); 13 Fletcher Cyclopedia Corporations § 5944 (Perm. Ed. 1980). This derivative action was filed in circuit court and tried before a jury. However, since the issue of subject matter jurisdiction is not before us, we are required to apply the standard of review of actions in law and we affirm if there is any substantial evidence to support the finding of the jury. Thrifty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W.2d 304 (1975). In determining the sufficiency of the evidence we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to appellee. Green v. Harrington, 253 Ark. 496, 487 S.W.2d 612 (1972).

The law imposes a high standard of conduct upon an officer or director of a corporation, predicated upon the fact that he has voluntarily accepted a position of trust and has assumed control of the property of others. Raines v. Toney, 228 Ark. 1170, 313 S. W.2d 802 (1958). Such a person occupies a fiduciary relation to the corporation and may not acquire, in opposition to the corporation, property in which the corporation has an interest or which is essential to its existence. Certainly, the president of a corporation owes a duty not to do an unfair or fraudulent act which will result in his private gain at the expense of the corporation. Raines, 228 Ark. at 1179. Such an act would be a breach of the fiduciary capacity of the president.

In the case before us there was substantial evidence from which the jury could find that the president breached his position of trust for his own private gain. The appellees, Gayle and Jane Terry, owned fifty percent of the common stock of the Christian Book Center, Inc., a Russellville business. Edjuana Taylor and her husband, appellant Lee Taylor, owned the other half of the stock. From the inception of the corporation in September, 1977, appellant served as president. By March 1978, the two couples were unable to agree on the conduct of the business affairs and, according to the appellees, the appellant president stated that he and his wife would operate the business. The appellees testified that they were told by appellant in April that they, the appellees, were out of the business. The parties discussed selling their common stock to each other. According to appellant, the corporation was not profitable. Shortly thereafter, a promissory note by the corporation to the Peoples Bank and Trust Company of Russellville became due and appellant testified there “was no point in making contact with Mr. Terry [appellee] about extending the note because we were not working together.” A bank official and appellant’s attorney at that time asked the bank’s attorney to file suit and foreclose on the assets of the corporation. The suit was filed on July 28,1978. No summons was issued and, viewing the facts most favorably to appellees, appellees were not given notice of the action prior to the decree of foreclosure. The corporation answered on July 31,1978. The foreclosure decree was entered on August 3,1978. Since July 29, 1978 came on a Saturday and July 30 on Sunday, the foreclosure, from complaint to decree, took just four work days. At the foreclosure sale the appellant, while still president of the corporation, purchased all of the assets of the corporation in his own name. The appellant made the purchase by simply refinancing with the same bank. No additional security was pledged. No payment was made on the principal. Appellant then continued doing business with the same assets, in the same location, except in his own name.

An accountant reconstructed the financial status of the corporation and challenged the appellant’s statement that the corporation was not profitable. He testified that on September 30, 1978, less than thirty days after the foreclosure, the business showed a net profit of $7,300.00 and that by the date of the trial, November 3, 1981, the business had a net worth of $72,614.72.

Thus, there was substantial evidence from which the jury could find that the president of the corporation breached his position of trust in favor of his own private gain.

Affirmed.


author: Robert A. Dudley, Justice. George Rose Smith, Justice, John I. Purtle, Justice,

text:
    Dan PADILLA v. STATE of Arkansas
    CR 83-46
    648 S.W.2d 797
    Supreme Court of Arkansas
    Opinion delivered April 18, 1983

      Donald R. Huffman, Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Robert A. Dudley, Justice.

The issue in this case is whether the Interstate Agreement on Detainers Act, Ark. Stat. Ann. § 43-3201 (Repl. 1977), is applicable to a detainer based on a petition for revocation of probation which does not allege the commission of a subsequent offense. In 1980, appellant entered a plea of guilty to two felonies in Benton County and was placed on three years probation. Two months later a petition for revocation of his probation was filed alleging that appellant had not reported to his probation officer and had absconded. When appellant failed to appear at the hearing, a warrant was issued for his arrest. Subsequently, appellant was convicted on an unrelated charge in California and sentenced to two years in the California Department of Correction. A detainer, based on the outstanding Arkansas warrant, was then placed on appellant in California. Appellant requested that a final disposition of the alleged probation violation promptly be made under the Interstate Agreement on Detainers Act [hereinafter referred to as Agreement]. The prosecuting attorney refused to honor appellant’s request for extradition and trial. Eight months later appellant was returned to Arkansas for a hearing. He moved to dismiss the petition alleging that the Agreement requires the State to dispose of the complaint against him within 180 days of his request for final disposition. The trial court found that appellant had already been tried on the basic charge and that a hearing to revoke probation does not constitute trial of an “untried indictment, information or complaint” within the purview of the Agreement. We affirm. This case was certified to the Supreme Court by the Court of Appeals since it involves the construction of an Arkansas statute. Rule 29 (1) (c).

The Interstate Agreement on Detainers is an interstate compact to which both Arkansas and California are signatories. Article III provides that where a detainer is lodged against a prisoner based upon an untried indictment, information or complaint of another state, the prisoner, upon request, must be brought to trial on the untried charges within 180 days. Ark. Stat. Ann. § 43-3201 Art. Ill (a). Failure to accord a timely trial may mandate dismissal of the underlying charge. Art. III (d); but see Young v. Mabry, 471 F. Supp. 553 (E.D. Ark. 1978), aff’d, 596 F.2d 339 (8th Cir.), cert, denied, 444 U.S. 853 (1979). The compact is designed to standardize interstate rendition procedures in order to protect the inmate’s right to speedy trial and reduce any uncertainties which might obstruct programs of prisoner treatment and rehabilitiation. Ark. Stat. Ann. § 43-3201 Art. I; United States v. Mauro, 436 U.S. 340 (1978); Capalongo v. Howard, 453 N.Y.S.2d 45 (N.Y. App. Div. 1982); Camp v. United States, 587 F.2d 397 (8th Cir. 1978).

Appellant contends that the State’s petition to revoke his probation is an untried complaint within the scope and meaning of the Agreement. This is a case of first impression in Arkansas. Although some courts have held otherwise, see Gaddy v. Turner, 376 So.2d 1225 (Fla. App. 1979), we are persuaded by the reasoning of the courts that have held a probation revocation proceeding not to involve “untried” matters within the purview of the Interstate Agreement on Detainers Act. See e.g., Capalongo v. Howard, supra; People v. Jackson, 626 P.2d 723 (Colo. Ct. App. 1981).

The Interstate Agreement on Detainers Act, Ark. Stat. Ann. §43-3201 (Repl. 1977) by its express terms applies only to a detainer based on an untried indictment, information or complaint. Under the principle of noscitur a sociis, we interpret the terms “untried” and “complaint” as used in the Agreement as being synonymous with, or at least in the nature of, an untried “indictment” or “information.”Altus Cooperative Winery v. Morley, 218 Ark. 492, 237 S.W.2d 481 (1951). A charge against a defendant does not remain “untried” after a defendant has pleaded guilty. A plea of guilty is itself a conviction; nothing remains but to give judgment and determine punishment. Boykin v. Alabama, 395 U.S. 238 (1969). As stated by the Tennessee Court of Criminal Appeals:

The term “untried” refers to matters which can be brought to full trial. In a probation revocation proceeding, the trial has already been held, and the defendant convicted. In such a hearing, the defendant comes before the court in a completely different posture than he does at his trial before conviction.

Blackwell v. State, 546 S.W.2d 828 (Tenn. Crim. App. 1976); see also Morrissey v. Brewer, 408 U.S. 471 (1972); Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981).

The petition to revoke appellant’s probation did not charge him with committing a crime prior to completion of his sentence. Since appellant had entered a plea of guilty on the charges underlying the original sentence of probation, there was nothing “untried” within the meaning of the statute. In our opinion, a charge of violation of probation, absent an allegation of the commission of an indictable offense, is not an “untried indictment, information, or complaint” within the scope and meaning of the Interstate Agreement on Detainers Act. The trial court was correct in refusing to dismiss the petition.

Affirmed.

Smith, J., concurs.

Purtle, J., dissents.

George Rose Smith, Justice,

concurring. I agree with the court’s opinion, but I also point out that Padilla’s demand for a hearing in Arkansas is plainly a ruse by which he hopes to avoid a detainer that would certainly still exist even if the hearing were held. He is charged with not reporting to his probation officer in Arkansas and with absconding. His present petition itself proves the charge, for it is made from a prison in California after he committed an offense there. The hearing would be a five-minute formality at which Padilla’s own petition would alone prove that his probation should be revoked. If Padilla wishes to pay the expenses involved in having an Arkansas police officer go to California, return Padilla to Arkansas for the useless hearing, and then return him to California, he is free to do so. But it would be absurd for this court to distort the plain meaning of the statute merely to enable Padilla to accomplish his scheme of holding the taxpayers of Arkansas for ransom.

John I. Purtle, Justice,

dissenting. The majority opinion presents a very sad picture because in this case of first impression we had the opportunity to construe the statute in its plain and ordinary meaning without the liability of following cases which twist the interpretation. The majority misinterpretation appears to be by design. The concurring opinion would go even further in denying legislated rights to one who makes a legitimate demand for these rights. For the concurrence to state that this valid exercise of statutory rights is a “ruse” and a mere “formality” is to disregard the express intent of the Arkansas General Assembly. If we were to require the appellant to pay the expense of a hearing in Arkansas, we would, in effect, be denying him the right to such a hearing.

Act 705 of 1971 was enacted for the purpose of enabling Arkansas to participate in the “Interstate Agreement on Detainers.” The Arkansas General Assembly found that outstanding charges against prisoners and detainers based upon untried indictments, informations and complaints, as well as difficulties in securing speedy trials of prisoners incarcerated in other jurisdictions, produced uncertainties which obstructed programs of prisoner treatment and rehabilitation. A detainer placed against a prisoner in another state often subjects the prisoner to greater restrictions than the general prison population:

Most parole boards consider a detainer as an adverse factor, and some will automatically deny parole if a detainer is pending. A detainer generally affects the convict’s work assignments, barring him from trustee status, from working outside the prison walls, or even from participating in a prison industrial organization ... In addition, the uncertainty engendered by such an unresolved charge will usually cause the convict to take a negative attitude toward any rehabilitation program which the correction officials undertake.

"Convicts — The Right to a Speedy Trial and the New Detainer Statutes,” 18 Rutgers L. Rev. 828 (1974).

The Arkansas General Assembly further explained their reasoning in Article I (Ark. Stat. Ann. § 43-3201 [Repl. 1977]):

The party states find that charges outstanding against a prisoner, detainers based on untried indictments, in-formations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determinátion of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures.

It is clear from the wording of the act that the General Assembly intended to provide for the orderly disposition of such “charges and detainers” with the purpose of helping in treating and rehabilitating prisoners. With these views in mind provisions were made for requiring certain procedures to be followed by the states as well as the prisoners. The appellant in the present case followed proper procedure in requesting a speedy disposition of the charges after a detainer was placed on him in the California prison. The State of Arkansas refused to comply with the request although California offered to return appellant here for disposition of the charges. The purpose of the act being to aid in treatment and rehabilitation, it should be liberally construed in favor of the prisoner. The majority opinion construes the act strictly against the appellant in direct contravention of the express words of the act.

The majority maneuvers around the words “complaint” and “untried” in an attempt to justify its opinion. The acts speaks clearly of charges and detainers based upon indictment, information or complaint. However, it is evident to me that any detainer pending on a prisoner triggers the procedures and binds the states to comply with the agreement. A detainer based upon a complaint or petition to revoke a suspension or probation is just as much a detainer as one based upon an indictment or information. The contention that appellant’s alleged probation violation was not “untried” is erroneous. The detainer was based upon an alleged act which was never proven; it was not based upon the original conviction. By ignoring the request of appellant for a speedy disposition of the charges against him the state will effectively let appellant serve his required time in another state under adverse conditions and then have the additional satisfaction of seeing appellant serve the most time possible in Arkansas. I submit that is not how the agreement on detainers was to work. The Florida Court of Appeals squarely addressed the same set of facts as those presented in this case, and applied the same language in the same act and stated in a well reasoned opinion:

... we hold that the Interstate Agreement on Detainers Act which requires a hearing within 180 days of request applies to detainers based on charges of probation violation.

Gaddy v. Turner, 376 So.2d 1225 (Fla. App. 1979).

The majority makes a valiant effort to turn the immense power of the state (and now the various states who have ratified this act) against the clearly expressed rights given specifically to this class of people. To unbalance the scales so, is to do disservice to our fundamental constitutional precepts to which I firmly adhere. A single right abridged chips away and the fundamental rights guaranteed all of us. I cannot be a part of such an erosion.


author: Steele Hays, Justice.

text:
    BANK OF OAK GROVE v. WILMOT STATE BANK
    83-21
    648 S.W.2d 802
    Supreme Court of Arkansas
    Opinion delivered April 18, 1983

      Griffin, Rainwater ér Draper, for appellant.

      Arnold, Hamilton ér Streetman, for appellee.
   Steele Hays, Justice.

This dispute arises from the foreclosure of land subject to three mortgages. It is agreed the property is subject to a first mortgage to First Federal Savings and Loan Association of Pine Bluff (now First South), but the Bank of Oak Grove (appellant) and the Wilmot State Bank (appellee) each claim to have a second mortgage. The Chancellor ruled in favor of the State Bank of Wilmot and the Bank of Oak Grove has appealed. We affirm the Chancellor.

The facts are not in dispute: George and Carolyn Bailey own two residential lots in Wilmot, Arkansas, subject to a first mortgage to First South dated March 19, 1979. On September 14, 1979, the Wilmot State Bank recorded its mortgage from the Baileys securing an indebtedness of $21,249.90. The margin of the record shows this mortgage to have been satisfied in full on January 28, 1980, but a later marginal entry on August 28,1980, states that the release was entered by mistake and the indebtedness remains outstanding.

A few days after the mortgage to the Wilmot State Bank was mistakenly satisfied, the Baileys sought a loan from the Bank of Oak Grove, Louisiana. After satisfying itself that it would have a second mortgage, the bank agreed to make the loan and used a method familiar to lenders in Louisiana, i.e., taking a note from the Baileys payable to bearer and a mortgage identifying the mortgagee only as “any future holder,” Appellant explains that under Louisiana practice this financing device, known as a collateral mortgage, allows the free negotiability of the debt; that the term “any future holder” is not intended to name a specific individual but only whoever may be a future bearer of the note. Appellant submits the Supreme Court of Louisiana has expressly recognized the use of nominal or “straw” mortgagees and, hence, mortgages to “any future holder” are valid in Louisiana. Commercial Germania Trust and Savings Bank v. White, 81 So. 753, 145 La. 54 (1919).

When the Baileys defaulted in their payments the Wilmot State Bank commenced foreclosure proceedings. Wilmot State Bank concedes First South’s status as first mortgagee, but claims to have a prior lien as against “any future holder”, which it attempted to serve by warning order. The Bank of Oak Grove intervened and, after a hearing, the Chancellor held that the mortgage to the Oak Grove Bank was void as to the Wilmot State Bank because “any future holder” was not a legal entity capable of holding title to land.

Appellant concedes title to real property is governed by the law of its situs and that Arkansas law requires that in conveyances of real property the grantee must be a legal entity, so that title can vest in either an individual, a partnership or a corporation. This was our holding in Lael v. Crook, 192 Ark. 1115, 97 S.W.2d 436 (1936), and in North Little Rock Hunting Club v. Toon, 259 Ark. 784, 536 S.W.2d 709(1976), on which the Chancellor relied. In Lael v. Crook, we held that a deed to “Camp Wiley Crook, Sons of Confederate Veterans, and Chapter J. Mart Meroney, Daughters of Confederacy” was invalid, as there was no legal capacity by the grantees to take or hold title to real property. We recently applied the same reasoning to a lease of hunting rights to an unincorporated association of individuals. See North Little Rock Hunting Club v. Toon, supra. In Toon, we were asked to distinguish Lael v. Crook because that case involved an attempt to convey title in fee, whereas in the Toon case only a lease for years was involved. We refused to make that distinction, noting that a lease, like a deed, “is properly a conveyance of a particular estate in lands, whether for life or for years or at will when reversion is left to the grantor. 2 Blackstone Comm. 367; Tiedeman on Real Property, § 772.”

Appellant argues that because we are construing a mortgage rather than a deed or a lease, the Lael and Toon cases should be distinguished; it submits that Arkansas applies a lien theory to mortgages as opposed to a title theory and, hence, we should relax the strict requirements applicable to deeds and leases. The appellant has cited no authority, and we are unwilling to decide the issue on as broad and undefined a principle as lien versus title theories of mortgages. Our cases do not support the argument that clearly. While recognizing that parties to a mortgage have duality of interest in mortgaged lands, our decisions suggest that a legal title does, indeed, pass from the mortgagor to the mortgagee, the former retaining only an equitable interest, conditioned on payment of the indebtedness. Harris v. Collins, 202 Ark. 445, 150 S.W.2d 749 (1941); Morgan Utilities, Inc. v. Kansas City Life Insurance Co., 183 Ark. 492, 37 S.W.2d 90 (1931); Fitzgerald v. Chicago Mill and Lumber Co., 176 Ark. 64, 3 S.W.2d 30 (1928). Dr. Leflar evidently regards mortgages as resulting in a transfer of title:

“The giving of a mortgage on land is a transfer of a title interest in the land, and the security interest given by a mortgage is a fee simple or lesser estate, usually corresponding to the estate owned by the mortgagor.” See Leflar, American Conflicts Law, 3rd Edition, § 171, P. 442.

We must reject, as well, the argument that we should consider the law of Louisiana in determining the effect of the term “any future holder”, because of the rule that contracts are interpreted in light of the law where the contract was made. We find no reference in the note to “any future holder”. That term appears only in the mortgage. It is clear that we apply the laws of Arkansas to transactions involving lands within our boundaries. Tate v. Dinsmore, 117 Ark. 412, 175 S.W. 528 (1915); Crossett Lumber Co. v. Files, 104 Ark. 600, 149 S.W. 908 (1912).

We take the appellee’s point of view because any attempt to engraft onto the substantive and procedural law of Arkansas, methods peculiar to another state and wholly different from our own, but affecting lands in Arkansas, would surely spawn problems better avoided. Confronted with that choice, we are compelled to rely on the only laws we can claim familiarity with — our own.

The decree is affirmed.


author: Richard B. Adkisson, Chief Justice.

text:
    John R. BEAN and Pauline C. BEAN v. Jessie, C. JOHNSON
    83-36
    649 S.W.2d 171
    Supreme Court of Arkansas
    Opinion delivered April 25, 1983

      Wilson, McNee ir Vaughan, P.A., by: Keith Vaughan, for appellants.

      Shackleford, Shackleford ir Phillips, P.A., for appellee.
   Richard B. Adkisson, Chief Justice.

This case involves a land dispute regarding an easement of ingress and egress. Appellants, John and Pauline Bean, are the owners of an easement over land belonging to appellee, Jessie C. Johnson. This easement was established in 1977 by a Calhoun County Chancery Court order which determined the respective rights of the parties:

. . . that title in and to the lands described in the complaint herein be, and hereby is, quieted and confirmed in the defendants, Jessie C. Johnson and Evie Lou Johnson; that the plaintiffs have a personal easement across the said lands to reach their respective properties, this easement being a personal one, extending only to plaintiffs [John R. and Pauline C. Bean] and their social invitees; and that the plaintiffs are enjoined and restrained from exercising any acts of ownership or dominion over the said lands belonging to the defendants, Jessie Johnson and Evie Lou Johnson.

In 1980 appellants brought suit again, alleging that appellee had interfered with the easement granted in the 1977 order, interfered with appellants’ property, interfered with a prospective contract to sell their property, and had trespassed on appellants’ easement. Appellants requested damages, an injunction, and that appellee be held in contempt. The trial court refused to grant the relief requested, but elaborated on its former decision by stating:

The plaintiffs, John R. Bean and Pauline C. Bean, have a personal easement across the lands of the defendant, Jessie C. Johnson, that extends to them and to their social invitees. However, if social invitees of plaintiffs attempt to use the easement when the plaintiffs are not present, then such social invitees shall first report to the defendant, Jessie C. Johnson, that they are going to use the easement and shall furnish to the defendant written proof that they are, in fact, social invitees of the plaintiffs. [Emphasis supplied]

It is from this ruling that appellants bring this appeal.

The relevant facts are as follows: Appellants live in Central Arkansas and own a cabin on Champagnolle Creek in South Arkansas. The easement in question is a road which is the only means of access to appellants’ property. It is located on property which appellee lives on and owns. Problems arose over this easement when appellants gave various “social invitees” permission to go on their property but did not accompany them. Testimony at trial indicated that when various “invitees” arrived, appellee told them that they were trespassing and ordered them off the property. Appellee testified he did this because he understood the 1977 order to mean that social invitees could come on the property only if appellants were with them. Appellee testified that he checked on anybody that visited the property even when it was dark. “When they make the turnaround, make the complete turnaround and come out I’d check them. That’s my business.” Relatives of appellants who were checking on the property for appellants testified that shortly after they drove up to the property, appellee walked over and told them they were trespassing and threatened to have them arrested if they came back. A prospective purchaser of the property testified that appellee told him that his son could use the property only if he [the buyer] were there, which was the main reason he decided not to purchase the property.

Appellants argue that the chancellor’s ruling which required appellants’ social invitees to first report to appellee and to furnish him with written proof that they were in fact social invitees unduly restricted their right to the use of their easement. We agree. When an easement exists, the rights of both parties are reciprocal, and respective owners must use the easement in a manner that will not interfere with the other’s rights to utilization and enjoyment of the property. Davis v. Arkansas Louisiana Gas Co., 248 Ark. 881, 454 S.W.2d 331 (1970). RESTATEMENT OF PROPERTY, § 481 (1944) states:

As the extent of the easement becomes more difficult to discover, the relations between the owner of it and the possessor of the servient tenement become increasingly subject to the governing principle that neither shall unreasonably interfere with the use of the land by the other. .. .The determination as to what constitutes an unreasonable interference on the part of the possessor of the servient tenement with the use of the land by the owner of the easement depends primarily upon a consideration of the relative advantage to him of his desired use and the disadvantage to the owner of the easement.

Here, the disadvantage caused to appellants by requiring either their presence or their written permission before social invitees can use the easement is greater than any advantage appellee might gain by being allowed to stop and check all unaccompanied social invitees. Therefore, it was error for the chancellor, to place such restrictions on appellants’ easement. Appellants and their social invitees must be allowed unrestricted use of the easement without interference by appellee.

Appellants also argue that the trial court erred in dismissing their prayer for damages for interference with prospective contract. Testimony at trial revealed that appellants had put the property up for sale and had at least one prospective purchaser who was seriously considering buying the property until he talked with appellee concerning the easement. Although we recognized in Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969) that damages can be recovered for interference with a prospective contract, appellants failed to prove the necessary elements of damage. The only proof going to the element of damage was that appellants were asking $9,500 for the tract and that the prospective purchaser might have paid $8,000 for it. There was no proof of what appellants had paid for the tract or what its fair market value was, and, as a result, no proof of the loss of a prospective profit. See RESTATEMENT OF TORTS, § 774 A (1979). Therefore, the trial court did not err in dismissing the damage portion of appellants’ complaint.

Affirmed in part; reversed in part.


text:
    Dickson FORREST v. Carole Jean FORREST
    83-54
    649 S.W.2d 173
    Supreme Court of Arkansas
    Opinion delivered April 25, 1983

      Michael W. Lonsberry of Williamson, Ball ir Bird, for appellant.

      Charles S. Gibson of Charles S. Gibson Law Office, for appellee.
   Richard B. Adkisson, Chief Justice.

The Drew County Chancery Court granted appellee, Carole Jean Forrest, a limited divorce from appellant, Dickson Forrest, and awarded her alimony. On appeal we must decide whether the trial court erred in the amount of alimony awarded and whether the marital property should have been divided at the time of the decree although both parties had agreed that it was not to be divided at that time.

The parties separated on April 8, 1981, and shortly thereafter appellant filed for a divorce. Appellee denied that appellant was entitled to a divorce and counterclaimed for separate maintenance. The trial court dismissed appellant’s action for divorce for insufficient evidence and found that appellee should be awarded a limited divorce on her counterclaim. The trial court ordered appellant to pay $522 per month alimony but stated that if he made the house payment of $212 per month he would be credited this amount. At the time of the decree the marital property was not divided, with the court’s order stating that “the parties have agreed that it would be inappropriate to cause a division of the parties’ properties as a part of this proceeding.”

Appellant now argues that the trial court erred in not ordering a property division at the time he granted the limited divorce. Ark. Stat. Ann. § 34-1214 (A) (Supp. 1981) provides:

Division of property. — (A) At the time a divorce decree is entered:
(1) all marital property shall be distributed . . .

As the concurring opinion in Spencer v. Spencer, 275 Ark. 112, 627 S.W.2d 550 (1982) points out, the legislature clearly intended that this statute apply not only to absolute divorce but also to limited divorce. See Compiler’s Notes, Ark. Stat. Ann. § 34-1214. However, we see no reason why, if the parties so desire and specifically agree, that the trial court cannot postpone the division of the property until a later date. Here, the record reflects that both parties did agree that no property division was to be made at the time the decree was entered; therefore, not distributing the property at that time was not error.

Appellant argues that the $522 alimony award is excessive since appellee, with appellant’s alimony payments, has a monthly income of $1,034 while appellant’s monthly income, after these payments, is only $908. However, appellant ignores the fact that $212 of the $522 alimony payment is for the house payment, which operates to his benefit since one-half of the house is his.

Appellant also argues that the court improperly considered the parties’ two adult children who lived at home but did not contribute toward their expenses when arriving at the alimony figure. This assertion is not supported by the record. The court specifically disallowed certain expenses which appellee had requested appellant pay because they were expenses because of the two children. The court also stated: “Frankly, the Court’s position is that those two boys ought to either get out, or go to work and pay some rent...”

We cannot say the chancellor’s decision in fixing the amount of alimony is clearly erroneous.

Affirmed.


text:
    Jerry BAILEY v. Harold Gene MATTHEWS et ux
    83-60
    649 S.W.2d 175
    Supreme Court of Arkansas
    Opinion delivered April 25, 1983

      Holland ir Todd, by: Michael E. Todd, for appellant.

      Ponder & Jarboe, by: Dick Jarboe, for appellees.
   Frank Holt, Justice.

Pursuant to a written contract, appellant built a home for the appellees. The undisputed evidence established that the concrete foundation was poured in water and mud. When the ground dried, the foundation cracked and the house settled, creating numerous other defects in the house. Appellees’ house was repaired at a cost of approximately $19,000.

The appellees filed suit, initially on a theory of breach of an implied warranty that the house was to be constructed with sound workmanship and proper construction. Before trial the complaint was amended by alleging a breach of written provision of the contract, which stated that the work was to be completed in a workmanlike manner according to standard practices. At a nonjury trial, when the appellees rested their case, the appellant moved for a directed verdict on the ground that the appellees had failed to give notice to appellant of the alleged breach of warranty, citing cases involving breaches of warranty in the sale of goods. Ark. Stat. Ann. § 85-2-607 (3) (Add. 1961). The court denied the motion. The appellant rested his case, choosing to stand on his motion for directed verdict. Two days after the court took the case under advisement, the appellees sought to amend their complaint to conform to the proof, alleging negligent construction in that the work was not completed in a workmanlike manner according to standard practices. The court allowed the amendment to conform to the proof and entered judgment for the appellees “[u]pon consideration of the pleadings and amendment to the pleadings to conform to the proof...” without specifying whether the judgment was founded on the warranty theory, the negligence theory, or both theories. Appeal was taken to the Court of Appeals, which certified the case to this court because it presents a question in the law of torts. Rules of the Supreme Court and Court of Appeals, Rule 29 (1) (o).

We first discuss appellant’s contention that the court abused its discretion in allowing the appellees to amend their pleadings to conform to the proof after both parties had rested and the matter had been submitted to the court for a decision.

ARCP Rule 15 (b) provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion. The court may grant a continuance to enable the objecting party to meet such evidence.

This rule is identical to the corresponding federal rule. According to Wright and Miller, Federal Practice and Procedure: Civil § 1493, “[a] party who knowingly acquiesces in the introduction of evidence relating to issues that are beyond the pleadings is in no position to contest a motion to conform. Thus, consent generally is found when evidence is introduced without objection . . . .” Here, the evidence relating to the issue of negligent workmanship, as well as breach of warranty with respect to good workmanship, was testimony that the foundation was poured in water contrary to standard practice and good workmanship. No objection was made to the introduction of this evidence. Unlike T. H. Epperson & Son, Inc. v. Robinson, 274 Ark. 142, 622 S.W.2d 668 (1981), we cannot say that the appellant was prejudiced by the amendment of the pleadings. There, the amendment to the complaint had the effect of substantially reducing the plaintiff’s burden and presenting the defendant with a much more difficult claim to meet than had been pleaded before trial. Here, the elements of the claim pleaded before trial and the claim pleaded in the amendment to conform to the proof were substantially the same. The pretrial pleadings put the appellant on notice that he would be required to meet a claim that the foundation was not completed in a workmanlike manner according to standard practices. The amendment simply restated the same claim attaching a different label to it.

The appellant argues that an amendment may not substantially change the claim or defense and cites in support of this contention O’Guinn Volkswagen, Inc. v. Lawson, 256 Ark. 23, 505 S.W.2d 213 (1974); and St. Louis I.M. & Ry. Co. v. State, 59 Ark. 165, 26 S.W. 824 (1894). Suffice it to say that both cases predate the Arkansas Rules of Civil Procedure, which include Rule 15 (b). Nothing in Rule 15 (b) precludes, under the facts of this case, an amendment of the pleadings by adding a theory of negligence to the theory of breach of warranty. See Moore’s Federal Practice par. 15.13 [2], which cites many federal cases construing Rule 15 (b) to allow amendments to conform to the evidence where the cause of action is changed and the opposing party is not prejudiced. No prejudice is demonstrated here. Furthermore, Rule 15 (b) provides that the court may grant a continuance to enable the objecting party to meet evidence relevant to issues not pleaded before trial. The record reveals that the appellees suggested to the trial court, in their memorandum brief in support of their amendment to the pleadings, that if the appellant deemed himself prejudiced, the court allow an additional hearing on the matter. The appellant never availed himself of this opportunity to correct any possible prejudice, responding only that allowing the amendment was an abuse of discretion. In our view the trial court did not abuse its discretion by allowing the appellees to amend their pleadings to conform to the proof.

Consequently, we need not reach appellant’s remaining contention that the court erred in denying his motion for a directed verdict on the ground that appellees failed to give notice to the appellant of the alleged breach of warranties.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Ray FORAN and Bobby WASHBURN v. MOLITOR FORD, Mollie NOWLIN and E. P. MOLITOR
    83-14
    649 S.W.2d 177
    Supreme Court of Arkansas
    Opinion delivered April 25, 1983

      David Solomon, for appellants.

      Raymond F. Galloway of Raff ir Galloway, for appellees.
   Darrell Hickman, Justice.

This is an appeal from an award of treble damages to a landowner against a tenant and an adjacent landowner for trespassing, which resulted in a $6,000 judgment plus $500 attorney fees. We find that the trial court erred in trebling the damages pursuant to Ark. Stat. Ann. § 50-105 (Repl. 1971), strike the unauthorized attorney fees, dismiss the judgment against the tenant, but affirm a judgment for $2,000 against the adjacent landowner.

The Molitor family, the appellees, owns forty acres of land in Phillips County, Arkansas, which has been leased for years to the Washburn family for farming. Less than half of the forty acres can be cultivated since the remaining portion is under water or wet most of the year. A farm road crosses the land and is, and has been, used by the appellant, Ray Foran, the adjacent property owner, to reach his land. It was stipulated by the parties that Foran has a prescriptive easement over the appellees’ forty acres.

There was evidence the road was low and had ditches only one or two feet deep at each side that were narrow enough to step across. The road would wash when it rained and was barely passable in winter. It was used solely for Foran’s easement. Foran decided to improve the road and told appellant, Bobby Washburn, the Molitors’ tenant, that he planned to clean out the ditches and fill the holes in the road. Washburn told Foran that he did not see what harm it would do as long as it did not interfere with cultivation. Foran never discussed his plans with the appellees. Foran also asked Washburn if he could replace some power lines that had once run through the appellees’ land. Washburn said that he did ask appellee E. P. Molitor’s mother about the line and she consented.

Foran had the power lines replaced, and put them along the road. He dug the ditches along the road in places up to eight feet deep and five to ten feet wide, according to the Molitors. He took the dirt from the ditches and raised the road in places three feet above the surrounding ground. The appellees’ complaint was that the changes seriously affected the topographic structure of their land and inhibited drainage. Washburn and Foran testified that the changes were not so extensive. The only witness who testified regarding the amount of damage done, said that it would cost $2,000 to restore the road to its original condition.

The trial court, sitting without a jury, found that Foran exceeded any authority he had by virtue of his prescriptive easement and had trespassed. He resolved in the Molitors’ favor the factual dispute about the effect of the road work and the landowners’ right to keep their property as it was. The judge said in summation: “The defendant, Foran, admits that he had no authority from anyone to go in and do such an expensive construction project. That no one gave him permission to do it, and [he] even said — that he probably should have gotten somebody’s permission.” There is substantial evidence to support the judge’s findings in this regard. Although one has a prescriptive easement, and may maintain that easement, that is not a license to make major alterations in the land. Craig v. O’Bryan, 227 Ark. 681, 301 S.W.2d 18 (1957).

But there is no evidence at all that would justify treble damages under Ark. Stat. Ann. § 50-105. That statute is penal and generally provides that if any person cuts down, destroys or carries away any trees or growing things, or digs up any stone, turf or fruit from another person’s land in which he has no interest or right, that person is guilty of trespassing and shall pay treble damages for anything so damaged, destroyed, or carried away. It is our j udgment that the damage done in this case is not covered by this penal statute. Foran had a right to repair the road because it is conceded that he had an easement which is an “interest” in the land according to the statute. The only thing done was that the dirt was moved on the property to build a new road, and while that action amounted to trespass because it was excessive under the circumstances according to the trial court’s finding of facts, it was not the sort of trespass envisioned by Ark. Stat. Ann. § 50-105. See Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979). Therefore, the court was wrong in entering a j udgment for treble damages. But there was evidence which would support the trial court’s finding that the land was damaged from the owners’ point of view, and the only evidence of the amount of damage done was the testimony by a contractor that the old road could be restored for $2,000. The judgment in that amount is affirmed against Foran.

The court also found that Bobby Washburn was liable for the trespass because as a tenant he was under an obligation to prevent the trespass or notify the landowner that it was happening, and, instead, Washburn stood by and allowed the trespass. There is not a preponderance of evidence to support that finding. Washburn never used the road and the testimony was that Foran told Washburn he was only going to clean out the ditches and fill the holes in the road. There was an abundance of testimony that the road had been maintained in such a way for years. A tenant’s duty to the landowner is to exercise reasonable care to guard against injury to the property. Kirkpatrick v. Reese, 219 Ark. 124, 240 S.W.2d 1 (1951). There is no evidence to support a finding that Washburn breached his duty to the Molitors. In fact, it might easily be inferred that had the tenant known such an extensive project was contemplated by Foran, he would have told the Molitors, because he did tell them about the change of the power lines. Therefore, the judgment against Washburn is dismissed.

There is no provision for attorneys’ fees in a case such as this and without express statutory authority such fees are not permissible. American Physicians Insurance Co. v. Hruska, 244 Ark. 1176, 428 S.W.2d 622 (1966). Therefore, the judgment is affirmed as modified.

Affirmed as modified.