author: David Newbern, Justice.

text:
    Robert R. CORTINEZ v. SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT
    97-789
    966 S.W.2d 251
    Supreme Court of Arkansas
    Opinion delivered April 9, 1998

      The Cortinez Law Firm, P.L.L.C., by: Christopher D. Anderson; and Hugh D. Brown, for appellant.

      William S. Roach, for appellee.
   David Newbern, Justice.

Robert R. Cortinez, Sr., appeals from a decision of the Arkansas Supreme Court Committee on Professional Conduct (“Committee”) to issue a letter of caution to him after finding him in violation of Rule 1.16(d) of the Model Rules of Professional Conduct. In its letter opinion, the Committee wrote that, upon termination of the attorney-client relationship, Mr. Cortinez did not invite his client, Anthony David, to discuss the legal consequences of his decision to end the relationship and did not return to Mr. David documents belonging to Mr. David. We affirm.

In January 1993, Mr. David’s civilian employment with the Pine Bluff Arsenal, a Department of the Army installation, was terminated on the basis that he falsified his employment application. In response to a question on his employment application, Mr. David stated that he had not been convicted by a court martial. Arsenal personnel concluded, following an investigation, that the statement was false. It was later determined that, although Mr. David had received a non-judicial punishment for two counts of showing disrespect toward Petty Officers while serving in the United States Navy, he had not been convicted by a court martial.

Following his termination, Mr. David applied for and was denied unemployment benefits by the Employment Security Division of the Arkansas Labor Department. The basis of the denial was that Mr. David had been discharged for providing false information on his employment application.

On April 15, 1993, Mr. David consulted Mr. Cortinez concerning his termination and the subsequent denial of benefits. At the April 15 meeting, Mr. David and Mr. Cortinez discussed appealing the denial of unemployment benefits and suing the Arsenal for wrongful discharge. There was evidence that Mr. David gave Mr. Cortinez his termination letter from the Arsenal and an official “court memorandum” regarding the non-judicial punishment. Mr. David paid Mr. Cortinez $100 which, he thought, was for agreeing to represent him in the wrongful-discharge action.

Mr. Cortinez argued that he only agreed to investigate the case. According to Mr. David, Mr. Cortinez advised him that the best course of action would be first to resolve the appeal of the denial of unemployment benefits and then to proceed slowly in the wrongful-discharge case to maximize the recovery. Mr. David agreed that Mr. Cortinez would represent him in the unemployment-compensation case for a fee of $350 contingent upon winning an award. Mr. Cortinez stated that Mr. David then signed a wrongful-discharge representation contract and one for representation with respect to the unemployment benefits. The contracts are part of the record. On the contract for the wrongful-discharge case, the phrase “$100 retainer for investigation only” is handwritten under the typed words “contingent upon recovery,” preceded by a checked box. In his affidavit, Mr. David asserted that he did not have a written fee contract with Mr. Cortinez but that they agreed that the wrongful-discharge case was on a contingency basis.

On April 16, 1993, Mr. Cortinez wrote a letter to the Director of Civilian Personnel at the Arsenal. In the letter, Mr. Cortinez stated that he was representing Mr. David in regard to his job termination. He also stated in the letter that Mr. David had received non-judicial punishment while on active duty with the United States Navy but that he had not been convicted by a military court martial. Mr. Cortinez closed the letter by saying that he looked forward to a response “to this interesting wrongful discharge case.”

On April 20, 1993, the Cortinez Law Firm sent Mr. David a letter of representation, stating that the attorney’s fee would be on a contingency-fee basis, to Mr. David. The letter, which was entitled “Wrongful Discharge & Unemployment Compensation,” welcomed Mr. David as a client and stated that the firm would receive its fee when the case was setded.

On May 4, 1993, the Deputy Command Judge Advocate of the Arsenal responded to Mr. Cortinez’s April 16 letter. In his response, the Deputy Command Judge Advocate provided grounds for Mr. David’s termination different from those originally recited. He wrote that Mr. David

. . . failed to properly respond to question 42 wherein it asked if he had ever forfeited any collateral. His Response in checking the No Block is in conflict with the disposition of the record of charges regarding his violation of two specifications of the Uniform Code of Military Justice (UCMJ) .... These Charges resulted in Mr. David’s forfeiting $150.00 pay per month for 2 months and his reduction in rank to E2 (suspended for 6 months).

According to Mr. Cortinez, he decided not to pursue the termination matter because the Arsenal’s decision to fire Mr. David would be difficult to set aside.

On May 5, 1993, an unemployment-compensation hearing was held in which Mr. Cortinez represented Mr. David, successfully as it later turned out. According to Mr. Cortinez, he wrote a memo-letter on May 6, 1993, which was sent to Mr. David, in which he advised Mr. David that he would not pursue the termination matter but hoped they would get a favorable decision on the unemployment compensation. A copy of the handwritten memo-letter appears in the record. Mr. Cortinez stated that he enclosed a copy of the Deputy Command Judge Advocate’s May 4 letter, but the memo-letter does not show a reference of any sort to an enclosure. At the Committee hearing, Mr. David denied receiving the letter.

On May 14, 1993, Mr. David paid $350 to Mr. Cortinez per the agreement on the unemployment-compensation case. The words “wrongful discharge” were written on the receipt he received for the $350. In his affidavit, Mr. Cortinez stated that his secretary, Jackie Evans, inadvertently wrote “wrongful discharge” on the receipt.

Mr. Cortinez stated that he did not hear from Mr. David between May 5, 1993, and November 1995. However, there is certainly evidence to support the Committee’s findings that, over the next two and a half years, Mr. David made periodic calls to the Cortinez Law Firm to learn the status of his wrongful-discharge case. According to Mr. David, he called Mr. Cortinez’s Pine Bluff office at least once every three months between May 1993 and June 1995 for a status report.

Mr. David stated that, in June 1995, he left a message for Mr. Cortinez at his Little Rock office in which he inquired about the status of the wrongful-discharge case. According to Mr. David, Mr. Cortinez then left a message for him on his answering machine. The message was that, if Mr. Cortinez had known that Mr. David wanted to know about the wrongful-discharge case, he would have brought the records from Pine Bluff. Mr. David stated that, in August 1995, at Mr. Cortinez’s secretary’s recommendation, he spoke with Joel Smith at the firm. Mr. David stated that Mr. Smith was to look for his records in the firm’s Pine Bluff office, but the Pine Bluff office said that his records were at the Little Rock office.

According to Mr. David, in September 1995, Mr. Smith told him that his wrongful discharge was not pursued because his $350 fee had not been paid. Mr. David stated that, in October 1995, Mr. Smith told him that he would get back with him later because he could not find his records but that he owed $350. Mr. David stated that he called Mr. Smith again and that Mr. Smith told bim that the firm’s files showed that he had not paid the $350 fee. Mr. David stated that he told Mr. Smith that he had a receipt for the $350 and that Mr. Smith said he would check on it. In his affidavit, Mr. Smith stated that he only spoke to Mr. David on one occasion in November 1995; however, at the hearing, Mr. Smith, responding to questions from the Committee, admitted that he remembered conversations with Mr. David.

At the hearing, Mr. David provided the following testimony regarding his attempts to contact Mr. Cortinez:

His son — he tried to look for my records. He said would I call to Little Rock. I called from Jefferson Heights to Litde Rock and he said that, “Your records aren’t right here, but I will try to find them. Call back later.” I finally called back later and he said, “I don’t know where your records are. They might be in the Pine Bluff office.”
And I said, ’’Well, I’m the Pine Bluff Arsenal case in Pine Bluff and I can’t get in contact with Mr. Cortinez here." So they said, ’’Later. Call back later." All I kept — did was call back later. I talked to Joel Smith. I explained to him my situation and he said well, he couldn’t help me but Mr. Cortinez would be in later. Call back. I called back and Mr. Cortinez was never in ... .

Mr. David stated that, in November 1995, he called the firm and that Mr. Smith transferred his call to Mr. Cortinez. According to Mr. David, Mr. Cortinez told him that he did not pursue the wrongful-discharge claim because he had not paid the $350. Mr. David stated that he asked Mr. Cortinez whether he would have pursued the case if he had paid him the $350 from the unemployment case. According to Mr. David, Mr. Cortinez responded in the affirmative. Mr. David stated that, when he told Mr. Cortinez that he had a receipt for the $350, Mr. Cortinez told him to fax a copy of the receipt. Mr. David stated that Mr. Cortinez hung up on him when he asked how Mr. Smith knew that he still owed $350 when he could not find his records.

According to Mr. Cortinez, Mr. David persisted in attempting to force him to agree that he did not pursue his wrongful-discharge case because he did not pay the $350 fee. Mr. Cortinez further stated that he told Mr. David that he did not agree to represent him in the wrongful-discharge case and that the contract that he signed stated that Mr. Cortinez would investigate the termination.

In his affidavit, Mr. Cortinez stated that the $350 payment was not documented in the Little Rock bookkeeping system and that, consequently, both files were closed by the Pine Bluff office with no documentation of the fees being paid.

At the hearing, Mr. Cortinez stated that he told Mr. David that he should check with another attorney regarding whether his claim had any merit; however, there is nothing to that effect in the memo-letter by which he purportedly declined to represent Mr. David on the wrongful-discharge claim. Mr. Cortinez stated that he did not invite Mr. David to his office so that he could answer any questions regarding his decision not to continue with the case. He stated that he did not return Mr. David’s termination letter from the Arsenal. Other documents in the wrongful-discharge file include a blank employment-application form and the court memorandum regarding Mr. David’s non-judicial violation.

Model Rule 1.16(d) states as follows:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

We review a decision of the Supreme Court Committee on Professional Conduct de novo on the record and pronounce judgment as if our opinion had been rendered by the Committee. Fink v. Neal, 328 Ark. 646, 945 S.W.2d 916 (1997). We affirm the Committee’s action unless it is clearly against the preponderance of the evidence and do not reverse the Committee’s findings unless they are clearly erroneous. Id. See also Colvin v. Committee on Professional Conduct, 309 Ark. 592, 832 S.W.2d 246 (1992); Muhammad v. Committee on Professional Conduct, 291 Ark. 29, 722 S.W.2d 280 (1987). The Committee is in the superior position to determine the credibility of the witnesses and weigh the preponderance of the evidence. Colvin v. Committee on Professional Conduct, supra.

1. Application of Model Rule 1.16(d)

Mr. Cortinez argues that Model Rule 1.16(d), which applies “[u]pon termination of representation,” does not impose any duty on him because he never represented Mr. David in the wrongful-termination case, and, instead, limited his involvement in the matter to investigating the facts to determine whether he would be willing to take the case. He further argues that he completed his attorney-client agreement with Mr. David when he conducted his investigation and sent the memo-letter to Mr. David.

In support of his argument, Mr. Cortinez refers to his wrongful-discharge contract with Mr. David. On the contract, Mr. Cortinez wrote “$100.00 retainer for investigation only.” Mr. Cortinez also refers to (1) Model Rule 1.2(c), which allows a limitation of representation; (2) Model Rule 3.1, which prohibits a lawyer from pursuing frivolous claims; and (3) Ark. R. Civ. P. 11, which requires an attorney to make a reasonable inquiry as to both the factual and legal basis for a pleading, motion, or other document before filing with the court.

At this point we need only say that there was before the Committee evidence that Mr. Cortinez did not continue to work on the wrongful-discharge case because he thought that Mr. David owed him $350 as a retainer for the wrongful-discharge case.

Whether Mr. Cortinez limited his contract of representation was a question of fact to be decided by the Committee. Based upon the evidence before it, the Committee could have concluded that an attorney-client relationship was formed with respect to the wrongful-discharge claim and that Mr. Cortinez did not pursue to its conclusion the “interesting” wrongful-discharge claim that presumably became even more interesting when the Arsenal changed its reason for discharging Mr. David.

2. Failure to surrender papers

a. Procedural due process

Mr. Cortinez also challenges the Committee’s decision on the basis that he was deprived of due process because he was not given sufficient notice that the Committee planned to consider his alleged failure to return Mr. David’s file as a potential violation of the Model Rules.

In his affidavit to the Committee, Mr. David alleged that Mr. Cortinez violated Model Rule 1.16(d). Additionally, in the Committee’s April 30, 1996 letter to Mr. Cortinez in which it informed Mr. Cortinez of the claims against him, the Committee wrote that the allegations implicated several specific rules, including Model Rule 1.16(d). Mr. Cortinez was again informed that he was charged with violating Model Rule 1.16(d) at the beginning of the hearing before the Committee on November 8, 1996.

Mr. Cortinez argues that he had no notice that the Committee intended to consider whether his alleged failure to return Mr. David’s file to him constituted a violation of Model Rule 1.16(d) because the Committee’s April 30 letter did not specify which of the four parts of Model Rule 1.16(d) Mr. Cortinez allegedly violated. He further argues that it was not apparent from Mr. David’s affidavit that the Committee intended to consider his alleged failure to return Mr. David’s file because Mr. David did not complain in his affidavit that Mr. Cortinez faded to return his file to him.

The Committee’s reference to Model Rule 1.16(d) was sufficient notice that the failure to return the client’s papers was at issue. The Rule provides several examples of steps that an attorney must take to protect a client’s interest upon termination of representation, including the return of the client’s papers to the client. Mr. Cortinez should have been prepared to establish his compliance with all aspects of the Rule.

Mr. Cortinez cites Colvin v. Committee on Professional Conduct, supra, in support of his argument that the Committee should have specifically referenced his failure to return Mr. David’s papers to him. In the Colvin case, we held that notice was inadequate when the attorney was notified of possible violations of certain rules but not the one of which he was found to be in violation. Here, there was clear notice of the allegations concerning the Rule ultimately found to have been violated.

b. Lack of evidence

Mr. Cortinez argues that the Committee’s finding that Mr. Cortinez failed to return Mr. David’s papers to him is clearly erroneous. He says he did not have any papers regarding the wrongful-termination case to which Mr. David was entitled and notes his testimony at the hearing in which he stated that he presented the documents that Mr. David gave him to the Administrative Law Judge at the unemployment-compensation hearing and that there was not any separate documentation regarding the wrongful-discharge case. He also notes that the Committee faded to indicate what papers he failed to return to Mr. David and that the record does not show that Mr. David asked that the file be returned to him.

There is evidence from which the Committee could have found that Mr. Cortinez had Mr. David’s papers in his possession and failed to return them. Mr. Cortinez stated that Mr. David gave him the termination letter from the Arsenal and the court memorandum regarding his non-judicial punishment at their April 15 meeting.

As to Mr. Cortinez’s argument that the record does not provide any evidence that Mr. David sought the return of any papers, the clear language of the Rule does not require a demand from the client to trigger this obligation. It places an affirmative duty on the attorney, not the client, to protect the client’s interests upon termination of representation.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    NEW PROSPECT DRILLING CO. v. FIRST COMMERCIAL TRUST, N.A. as Administrator of the Estate of Jolene Marie Jones, Deceased
    97-615
    966 S.W.2d 233
    Supreme Court of Arkansas
    Opinion delivered April 9, 1998

      Tatum, Rife & Tatum, by: Tom Tatum; Clevenger, Angel & Miller, by: Richard L. Angel; and Barrett & Deacon, by: D.P. Marshall, Jr., for appellant.

      Peel Law Firm, P.A., by: Richard L. Peel, for appellees.
   David Newbern, Justice.

This is a negligence case resulting from an automobile-truck accident in which Jolene Marie Jones died. Ms. Jones was driving a Mercury Topaz that collided with a Ford Ranger pickup truck driven by Carl Lewallen and owned by Mr. Lewallen’s employer, appellant New Prospect Drilling Co. (“New Prospect”). As the result of a jury’s verdict, appellee First Commercial Trust, N.A. (“First Commercial”), administrator of Ms. Jones’s estate, recovered $3 million in damages against New Prospect. New Prospect argues for reversal on account of jury misconduct and misconduct by First Commercial’s attorney during the trial. It also contends that the Trial Court erred by allowing a deputy sheriff to give expert testimony and that the damages awarded were not supported by substantial evidence. We affirm the judgment as modified to reduce the damages by $100,000.

1. Expert testimony

The action was originally brought against Mr. Lewallen and New Prospect. A nonsuit was taken with respect to Mr. Lewallen. A trial began in June 1996. A mistrial occurred, and the retrial resulting in the verdict favoring First Commercial was held in January 1997.

The accident occurred on two-lane Pope County Road 81 north of London. Ms. Jones was westbound, and Mr. Lewallen' was eastbound. The issue of fault depended upon whether one or both of the vehicles crossed the center line. Mr. Lewallen testified he had dropped his watch inside his truck and had pulled off on the shoulder to retrieve it. Having done so, he pulled back onto the road, and the wreck occurred shortly thereafter. He remembered nothing about how it happened, and there were no other eyewitnesses to the crash.

In the first trial, First Commercial presented the testimony of Pope County Deputy Sheriff Danny Sorey who investigated the accident. In response to questions about how the accident happened, Deputy Sorey said that the Ford pickup was found straddling the center fine and that a skid mark, shown in photographs to have been in the westbound lane, came from the right front wheel of the pickup. Objections to that testimony were sustained on the basis that Deputy Sorey had not been qualified as an expert.

At the second trial, New Prospect sought a ruling that Deputy Sorey not be allowed to offer expert opinion testimony. In response, counsel for First Commercial stated he would “qualify” the witness by presenting evidence of his education and experience in accident investigation. New Prospect asked the Trial Court to review the record of the previous trial and to assure that the rulings on the questions would be the same. The Trial Court responded that he would hope to follow the same “fine” but that he would have to hear the questions asked this time before ruling.

On direct examination, First Commercial’s counsel, Richard Peel, asked Deputy Sorey a number of questions about his accident-investigation training at the law-enforcement academy. Deputy Sorey recalled having studied various aspects of accident investigation and added that he had been investigating accidents for six years at the time this one occurred. He said he had benefit-ted from the experience of others, including state police officers, with whom he had worked accidents.

Mr. Peel asked Deputy Sorey if, “based on [his] education and experience in [his] investigation of this accident,” he had an opinion as to which tire on the Ford pickup was skidding. As the skid mark in question went into the westbound lane of traffic, an answer that it was the right front tire of the truck would place the truck squarely in the oncoming lane of traffic in which Ms. Jones had the right of way. Counsel for New Prospect objected on the ground that “[t]he proper foundation has not been laid . . . nor is he qualified to render that opinion . . . .” The Trial Court overruled the objection. Deputy Sorey testified that it was the truck’s right front tire and further opined, over further objection, that the wreck occurred in the westbound lane.

On cross-examination, New Prospect questioned the deputy’s credibility. Deputy Sorey acknowledged and reiterated his deposition testimony in which he had said he was not an expert. He admitted that his drawings of the scene in front of the jury were different from his field-note drawings, which apparently suggested the wreck occurred in Lewallen’s eastbound lane. He initially had the Topaz in the eastbound lane, but that was error, he said, and he made a second drawing to correct that mi-stake. He conceded that most of the truck was in the eastbound lane after the accident and that he had not noted in his field notes whether there were any gouge marks at the scene on the day of the accident. The marks had been covered, he explained, and did not become visible until later. The deputy conceded that he “never got underneath the Ford Ranger” and attempted to follow the skid marks to either tire.

Although the cross-examination was effective and perhaps raised some questions about the deputy’s thoroughness in investigating the scene, the abstract does not show any motion from New Prospect to strike his testimony on the ground that his expert qualifications had been somehow disproved in view of what had come out on cross-examination.

Each side presented an expert accident reconstructionist to testify about who was responsible for the accident. Deputy Sorey was a second expert witness for First Commercial on the issue of who had caused the collision.

New Prospect frames the issue as whether Sorey was properly declared an expert. Arkansas R. Evid. 702 provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” We have held that, “[w]hether a witness may give expert testimony rests largely within the sound discretion of the trial court, and that determination will not be reversed absent an abuse of discretion. On appeal, the appellant must demonstrate that the trial court has abused its discretion.” Wade v. Grace, 321 Ark. 482, 486, 902 S.W.2d 785, 788 (1995) (citations omitted).

In Smith v. Davis, 281 Ark. 122, 663 S.W.2d 165 (1983), we acknowledged that our prior cases had precluded police officers from giving opinions as to the causes of accidents. We recognized, however, that other jurisdictions held to the contrary. The holding of the case appeared as follows:

We need not expand our decision beyond the facts of this case: Where an officer investigates a vehicle accident, observes sufficient relevant evidence such as skid marks, debris from the vehicles, position of the vehicles, or makes other observations, and where he can rationally form an opinion about the point of impact, he should be allowed to testify as to that opinion.
It is for the trial court to determine whether proper foundation has been laid for the testimony. See Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92 (1982); Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980).

Id. at 125, 663 S.W.2d at 166.

We have continued to hold in favor of allowing such opinions. In Sledge v. Meyers, 304 Ark. 301, 303-04, 801 S.W.2d 650, 651 (1991), we held that the Trial Court had erroneously prohibited the trooper from stating “her opinion about the location of the vehicles at the moment of impact.” We noted in the Sledge case that, in Ferrell v. Southern Farm Bureau Cas. Ins. Co., 291 Ark. 322, 724 S.W.2d 465 (1987), “we expressly said a qualified trooper could state ‘who crossed over a center line.”’ Sledge v. Meyers, 304 Ark. at 303, 801 S.W.2d at 651.

Deputy Sorey testified about the kinds of things that appear to be permissible under the cases mentioned above. His testimony dealt with the point of impact: in what lane did the collision occur, and what tire on Lewallen’s truck caused the skid mark? He detailed his academy training and work experience and described his investigation at the scene that led him to reach his conclusions. We have been cited to no authority holding that a law officer’s modest refusal to declare himself an expert disqualifies the officer.

New Prospect makes much of the fact that the judge in the first trial sustained objections to Sorey’s testimony. First Commercial’s response is that Mr. Peel spent more effort in qualifying Deputy Sorey in the second trial than in the first and that there was more of a basis for determination. Again, we are cited to no authority suggesting that a judge in such a circumstance is prohibited from changing his ruling.

New Prospect also asserts that, even if Deputy Sorey was entided to give an opinion on the basis of his credentials, his testimony still should have been stricken for lack of foundation. New Prospect points to the concessions made by Deputy Sorey during cross-examination regarding what he did and did not do during his processing of the accident scene. Based on the information elicited on cross-examination, New Prospect says there was no foundation for his conclusions. But New Prospect did not use the information elicited on cross-examination to make a “lack of foundation”-type motion to strike.

There was a foundation-based objection raised during direct examination. Prior to that time, however, Deputy Sorey had established that he had processed the scene; taken measurements; determined the vehicles’ positions in the road; detected the skid marks; and searched for gouge marks, finding some then and others later. The foundation objection was properly denied at that time. If New Prospect then wished to strike the testimony in light of its cross-examination, it should have said so then. As it stands, much of New Prospect’s argument that Deputy Sorey’s opinions lacked foundation are being raised for the first time on appeal. We do not reverse on the basis of arguments not raised in the trial court. Slaton v. Slaton, 330 Ark. 287, 294, 956 S.W.2d 150 (1997); Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995).

2. Attorney misconduct resulting in excessive verdict

New Prospect cites numerous examples of alleged attorney misconduct that it argues led to the verdict of $3 million, which it considers to be excessive.

First, New Prospect complains about the opening statement of Mr. Peel in which he referred to the fact that the members of Ms. Jones’s family had not reached “closure” with respect to the death of their seventeen-year-old daughter and sister and that they had to “deal” with her “death at the funeral and after.”

New Prospect suggests that, in conjunction with later references by witnesses to the fact that the case had been tried once before, the opening-statement language suggested New Prospect was somehow at fault for delay. There were indeed some references by witnesses to the earlier trial. Most of them seemed to be inadvertent. From the record before us, we cannot say that the references created any prejudice toward New Prospect.

The second misconduct argument has to do with Mr. Peel’s questioning of Don Johnston, who testified as an expert on behalf of New Prospect. On several occasions after Mr. Johnston made a statement on cross-examination, Mr. Peel asked if the jury was to “just take [his] word” for the truth of the statement. New Prospect attempted to inquire of Mr. Johnston whether Mr. Peel had asked that he serve as an expert for First Commercial in the case and thus to prove that Mr. Peel was questioning the trustworthiness of a witness he had previously attempted to procure for his client. The Trial Court refused to allow it on the ground that Mr. Peel would have to become a witness to refute any such evidence and that that would not be permitted. See Model Rule of Professional Conduct 3.7. New Prospect has not demonstrated that ruling to have been in error.

We do not mention all of New Prospect’s allegations of misconduct, but there are two others we choose to discuss that were raised in New Prospect’s motion for a new trial. First Commercial contends that Mr. Peel, at one point during the trial, said something like, “Those damn defense lawyers will argue with a wall all day long.” The contention is that it was said in such a manner as to be audible to the jurors. Mr. Peel, in response, argued at trial that he did not use the word “damn” and that his remark was not overheard by the jury.

Finally, and perhaps most serious, there is a contention that Mr. Peel improperly appealed to the sympathy of the jurors in his closing argument. After Mr. Angel, arguing for New Prospect, had reminded the jurors of the Trial Court’s instruction not to allow “sympathy” to enter their verdict, Mr. Peel, in rebuttal, agreed with that position but said, “. . .in cases like this if you measure a tremendous loss, you can’t help but have some sympathy for them. You can’t separate the two.” Defense counsel’s objection was sustained.

In support of its argument that the jury’s verdict was affected by these instances of misconduct, New Prospect cites this language: “If the transgression be flagrant — if the offensive remark has stricken deep, and is of such a character that neither rebuke nor retraction can entirely destroy its sinister influence — a new trial should be promptly awarded . . . .” German-American Ins. Co. v. Harper, 70 Ark. 305, 307-08, 67 S.W. 755, 756 (1902). It is our view of the case that the instances of alleged misconduct on the part of Mr. Peel were not of the sort described in the quoted standard. Nor was it a situation such as we confronted in Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986), where it appeared that counsel ran roughshod over the Trial Court’s rulings. The responses of the Trial Court to the objections and the new-trial motion were within the Trial Court’s discretion, and we have not been given sufficient reasons to reverse on the basis of counsel’s misconduct.

3. Jury misconduct

After the closing arguments and instructions had been given, the jury retired to deliberate. The bailiff was summoned to the jury room and given a note apparently containing a question about damages. The Trial Court instructed the bailiff to take all the jury instructions to the jury. According to his affidavit, the bailiff entered the jury room to deliver the instructions and at that point observed two toy cars on the table in front of the jury foreman. The cars, which were sports-car models, were not part of the evidence he had delivered earlier to the jury room. The bailiff informed Judge Patterson that he believed “the jury was going to use the cars to reenact the accident.” The bailiff was directed to bring the jury, along with the toy cars, into the courtroom. The bailiff returned to the jury room and saw that “all of the jurors were gathered around the foreman” and that “they were moving the cars around on the table.”

The jury returned to the courtroom. Judge Patterson explained that they could not use the toy cars, which he retained and made a part of the record. In his statement denying the “drastic remedy” of a mistrial, the Trial Court said that he knew it was wrong for the jurors to have had the toy cars in their deliberations but that he saw “no harm in it.”

The model cars were made one of the subjects of the motion for a new trial, and they were displayed during oral argument before this Court. New Prospect argues that, because of the differences in the configurations of the models from the actual vehicles — e.g., that the models did not have wheels that could be turned to emulate those of the car and truck involved in the wreck, that neither was a truck — the possibility of prejudice was great.

In response to New Prospect’s new-trial motion, First Commercial filed twelve identical juror affidavits. Each of the affidavits provided, in relevant part, as follows:

No extraneous, prejudicial information was improperly brought to the jury’s attention during deliberations. No outside influence was improperly brought to bear upon any juror. The jury foreman, Kenneth Zelnick, did have two toy cars which were on the jury table. The cars were brought out after the jury had voted on the issue of liability and just before the jury sent out first note asking about damages. The cars were not considered on the issue of damages. Nothing about the presence or use of these two, small toy cars provided any information not introduced at trial or brought any outside influence to bear upon any juror. The jury foreman could as well have brought in two packs of cigarettes, two women’s makeup compacts, two folded pieces of paper, two erasers, two shoes, or any two other items small enough to fit on the table. The fact that the objects on the table were miniature cars did not provide or demonstrate to the jury any information that was not presented as evidence at trial.

At a hearing on the new-trial motion, New Prospect moved to strike the affidavits on the ground that, “[o]n their face, they violate Rule 606(b) of the Arkansas Rules of Evidence.” New Prospect called the jury foreman, Kenneth Zelnick, to the stand. Fie admitted that he produced the cars during jury deliberations. In questioning Mr. Zelnick, Mr. Angel, on behalf of New Prospect, made it clear that he did not wish to elicit testimony concerning either discussions in the jury room about the car or any impact the presence of the toy cars had on the jurors. He asked, however, what Mr. Zelnick had done with the model cars in the jury room. Mr. Zelnick said he “laid them on the table with the idea that they might help me or some of the other members of the jury to visualize how the cars may have been positioned on the road before and after the accident.” First Commercial did not cross-examine Mr. Zelnick.

New Prospect then called juror Kathy Lloyd to the stand. She remembered that Mr. Zelnick produced the two cars during deliberations and put them on the table at an angle. Ms. Lloyd said that there was a picture of the accident scene in front of them and that Mr. Zelnick “set the toy cars like the cars were angled in the picture. That’s about as long as they were in there. He sat the cars beside the picture. He didn’t sit them directly on top of anything.” Ms. Lloyd said that she did not believe Mr. Zelnick “moved the cars. He lined them up. I mean, he may have moved them by lining them up, but he did not move them by rolling them around.” First Commercial did not cross-examine Ms. Lloyd.

The Trial Court struck the juror affidavits with the exception of the portions that read,

The jury foreman, Kenneth Zelnick, did have two toy cars which were on the jury table. The cars were brought out after the jury had voted on the issue of liability and just before the jury sent out its note about damages. The cars were not considered on the issue of damages.

After further discussion about Rule 606(b) and the “reasonable possibility of prejudice” standard to be applied, the Trial Court denied the new-trial motion and said that the “allegation concerning misconduct of the jury and the evidence pertaining thereto did not affect the substantial rights of the parties to this action.”

In Diemer v. Dischler, 313 Ark. 154, 160, 852 S.W.2d 793, 796 (1993), a motion for a new trial was made on the basis of juror affidavits to the effect that two jurors had gone to the scene of the accident that was the subject of the trial and had experimented with respect to whether a car could be brought to a stop within a certain distance. The affidavits indicated that the two jurors had revealed their experiment and its result to the others. Citing Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985), and St. Louis Southwestern Ry. Co. v. White, 302 Ark. 193, 788 S.W.2d 483 (1990), we held the standard to be applied was whether the jurors’ misconduct created a reasonable possibility of prejudice, but we stated that on review we reverse the denial of a motion for a new trial only if there has been a manifest abuse of discretion. We held there had been no such abuse of discretion.

We reach the same conclusion in this case. The use of the toy cars, brought to the jury room for the purpose of a demonstration, comes close to the bringing in of extraneous evidence, and we agree it should not have occurred. That, however, is not the same as saying that a jury may not use “props” to reenact an event. While we conclude that it was improper for a juror to have brought the toy cars into the jury room, it seems a close question because we would clearly have found no impropriety had the jurors used two items they might have found at hand, such as pencils or erasers, or perhaps books, to demonstrate their views to each other on how the accident occurred.

Even though the-Trial Court indicated he found no “actual prejudice,” rather than reciting the “reasonable possibility of prejudice” standard, we cannot say his overriding of the new trial motion was a manifest abuse of discretion. The evidence given by the bailiff and that of the jurors conflicted. A juror said the toy cars were placed on the table in the jury room and were moved to relative positions occupied by the damaged cars in one of the photographs in evidence. The Trial Court need not have believed the cars were used in a full-blown reenactment of the crash or that, if such a reenactment had occurred, any juror might possibly have disregarded the fact that the toy cars did not resemble the vehicles involved in the wreck.

New Prospect contends on the one hand that the toy cars were so different from the ones involved in the wreck that it was improper to use them. On the other hand, it contends that the toy cars were too similar to the ones involved, in comparison with items such as books or pencils, and thus misleading as they did not have some of the characteristics of the vehicles involved in the crash, such as the height of the truck and wheels that turn. To hold that the toy cars were so much like the vehicles involved in the wreck and yet were so different that there was a reasonable possibility of prejudice, and thus a manifest abuse of discretion in denying a new trial, would ignore the common sense possessed by jurors and commonly exercised by them in viewing the evidence presented.

In United States v. Abeyta, 27 F.3d 470 (10th Cir. 1994), a juror used his personal pocket knife to reenact a crime during jury deliberations. In reaching the conclusion that there was no constitutional violation, the Court noted that there was “simply no constitutional command preventing a jury from using common sense and ordinary and uninflammatory props to reenact a crime in the privacy of the jury room.” Id. at 477. Obviously we do not cite the case for its constitutional-law aspect but as reinforcement of our view that jurors would not be misled by the “props.”

In view of the clear evidence as to the nature of the vehicles involved in this case and the obvious differences between them and the toy cars, we cannot say that there was any reasonable possibility of prejudice resulting from their presence in the jury room or that there was an abuse of discretion in the denial of the new-trial motion.

4. Damages

a. Conscious pain and suffering

New Prospect contends that the damages award should shock the conscience of the Court and cause a new trial. It first complains about the $1,000,000 awarded for conscious pain and suffering by the decedent. The contention is that the evidence that Ms. Jones was conscious and suffering after the accident was tenuous and that the amount of the award must have been based on the misconduct of counsel causing prejudice on the part of the jury.

Susan Humphrey testified that she arrived on the scene of the accident prior to the police and the emergency medical personnel. Part of Ms. Humphrey’s testimony, as abstracted, follows:

I went over to the car. Her head was bent over funny and she had blood coming out of her mouth. There was blood on her arms. I kept telling her to hold on, that the police and the paramedics had been called and would be there soon and God loved her. At some point she was moving her arms. I’m not sure why, but I told her to stop moving because she might hurt herself. At some point the blood stopped coming out of her mouth. She must have been swallowing it, because her breathing got really bad. It was hoarse and raspy. When I told her to stop moving, she did. She quit moving her arms and was still for me. Then when her breathing got really bad, I’d tell her to take a deep breath, and she would take a deep breath. Then she would go back to the shallow, raspy breathing. I’d tell her to take another deep breath a few seconds later and she would breathe again .... I had the definite impression that I was able to communicate with her .... When I told her to quit moving, it was like, “OK, I’ve got your attention. You know, I can hear,” and she would quit moving. It was like she was trying to let me know she could hear me or something.

In view of that testimony, we cannot say the evidence was insufficient to show that there was conscious pain and suffering on the part of Ms. Jones or that the damage award in that respect shocks the conscience of the Court.

b. Awards to siblings absent evidence of grief

The award of damages was apportioned by the jury among the family members of the decedent. New Prospect argues that the $50,000 awards made to Russell E. Jones and Rebecca McKinney should be reversed because neither testified at the trial and no other witness presented evidence of mental anguish on the part of either of them. We agree.

First Commercial argues that we can affirm the two awards, as Act 589 of 1993 (Ark. Code Ann. § 16-62-102 (Supp. 1997)) permits recovery by a family member of a decedent for “grief normally associated with the loss of a loved one.” Our cases decided prior to Act 589 have required something more than “normal” grief. See Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961), overruled on other grounds, Fountain v. Chicago, R.I. & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968).

We are not concerned here with the extent to which the statute may have changed the law as to the extent to which grief must be demonstrated, but with whether it must be demonstrated to some degree. Absent some such evidence from or on behalf of Ms. McKinney and Mr. Jones, we cannot uphold the judgments in their favor.

First Commercial has agreed in its brief that, if Act 589 is not to be interpreted as permitting damages to Mr. Jones and Ms. McKinney in this case, their awards may be remitted. We modify the judgment by removing those awards, thus reducing the total recovery by $100,000.

Affirmed as modified.


author: Tom Glaze, Justice.

text:
    Bellinda BARRERA v. Annette VANPELT
    97-801
    965 S.W.2d 780
    Supreme Court of Arkansas
    Opinion delivered April 9, 1998

      Brown, Schwander, & Greene, P.L.C., by: Alice Ward Greene, for appellant.

      Claibourne W, Patty, Jr., for appellee.
   Tom Glaze, Justice.

This is a will contest case involving William Yuhola Laneer’s 1973 will, which disinherited his son, William Richard Laneer, by giving him one dollar and giving the balance of his estate, equally, to his four daughters, Bellinda Barrera, Annette Vanpelt, Ramona Desich, and Joan Edens. After William Y. died in 1996, Vanpelt petitioned to probate the 1973 will and requested she be appointed executrix. Barrera then petitioned to contest the 1973 will alleging, among other things, that the will was executed through fraud and undue influence and that William Y. had expressed no preference of any one of his children over another. Vanpelt, Desich, and Edens filed a motion to dismiss, asserting Barrera had no standing under Ark. Code Ann. § 28-40-113(a) (1987) to contest the will because her pecuniary share would be less, not more, if the will was set aside. Barrera responded, stating she had standing as an interested party to contest the will under § 28-l-102(a)(ll) (1987).

At trial, the parties developed two primary issues, (1) whether Barrera had standing to challenge William Y.’s 1973 will, and (2) if so, whether Barrera had shown that William Y. had revoked the will, leaving his estate to be distributed to his five children by the laws of descent and distribution. Although the trial court found Barrera had standing to contest the 1973 will, it rejected her claim that the will had been revoked or destroyed. Upon finding William Y.’s will valid, the trial court admitted the will to probate and appointed Vanpelt to serve as executrix.

Barrera appeals, challenging the trial court’s findings made in support of its ruling that the will is valid. Vanpelt cross appeals, arguing the trial court erred in finding Barrera had standing to challenge the will’s validity. We first consider the standing issue.

Vanpelt characterizes the issue of standing as one of first impression in Arkansas; if it is, it is an easy one to decide. As the trial court stated in its order, § 28-40-113(a) establishes who may contest a will, and the manner in which it is done. That provision provides that an “interested person” may contest the probate of a will, or any part thereof, by stating in writing the grounds of his objection and filing them in the court. Section 28-l-102(a)(ll) defines “interested persons” to include any heir, devisee, spouse, creditor, or any other having a property right, interest in, or claim against the estate being administered and a fiduciary. A devisee is further defined to include a legatee — a person entitled by will to personal property. Ark. Code Ann. §§ 28-1-102(a)(6) and (14). Here, Barrera (and all of her sisters) was given an equal share of her father’s (William Y.’s) estate, so she unquestionably meets the term “interested person” as defined by law. In addition, if William Y.’s will were set aside for some reason, Barrera also would qualify along with her siblings as an “heir” within that statutory-defined term.

Vanpelt cites several secondary authorities for the proposition that before a person can contest a will, the contestant must have some pecuniary or beneficial interest in the estate of the decedent that is detrimentally affected by the will. See 80 AM.JuR.2d, Wills, § 892 (1975). She further argues that, the mere circumstance that a person may be interested in the administration, distribution, or partition of an estate is not sufficient if he will not suffer any detriment from the will. Id., see also 95 C.J.S. Wills, § 329 (1957); cf. 39 A.L.R..3d 321. As set out and discussed above, our statutes, §§ 28-l-102(a)(ll) and 28-40-113(a), very clearly permit devisees and legatees, having an interest in the estate, the right to contest a will, and nothing in those provisions requires that the contestant’s interest must be detrimentally affected by the will. The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. See Dunklin v. Ramsey, 328 Ark. 263, 944 S.W.2d 76 (1997). Accordingly, we hold Barrera had standing to question the validity of William Y.’s will.

We now turn to Barrera’s argument that William Y.’s 1973 will was revoked and should be set aside. A short discussion of the events surrounding the execution of the will is needed. Attorney Hubert Alexander prepared the will in 1973. At that time, William Y. and his wife harbored bad feelings toward their son, William R., who at his father’s urging, had been made a partner in William Y.’s lumber business. Sometime after being made a partner, William R. believed money was missing from the business, and he determined the money went into an account bearing his mother’s and Vanpelt’s names. He sued the company for an accounting. He also reported the company to the Internal Revenue Service. These ill feelings resulted in William Y. and his wife going to Alexander, who advised them that, in order to preclude William R. from inheriting their estate, they would need to name William R. in their mutual wills in order to prevent him from receiving an intestate share upon their deaths. Identical wills subsequently were prepared for William Y. and his wife, giving a one dollar amount to William R. and the remainder of the estate to his four sisters. Mrs. Laneer predeceased William Y., making William Y.’s will the one at issue in this case.

It is significant to mention that William Y. actually had executed three original wills, as all three wills had been properly witnessed. One will was on paper captioned “Last Will and Testament” — this will and a second original executed copy were given to William Y. A third copy, properly executed and witnessed, was retained by Alexander. A photocopy of the original will was given to Vanpelt. After William Y. died, no one could find the will executed on will paper amongst his possessions; however, a copy of one of the three original wills was found in his lockbox after his death. This copy of the original and Alexander’s executed and duly attested original copy were introduced for admission to probate by Vanpelt.

After the parties submitted their evidence and testimony, the trial court found that any one of the three original wills could suffice as the original will. It further concluded that, even though the two original wills previously given William Y. were missing at the time of William Y.’s death, causing a rebuttable presumption to arise that William Y. had destroyed his 1973 will, the court found that Vanpelt’s proof had overcome any presumption of revocation.

The trial court’s decision correctly acknowledged the general rule that it will be presumed that a testator destroyed a will, executed by him in his lifetime, with the intention of revoking the will, if he retained custody of the will or had access to it, and if it could not be found after his death. Rose v. Hunnicutt, 166 Ark. 134, 265 S.W.2d 651 (1924); see also Gilbert v. Gilbert, 47 Ark. App. 37, 883 S.W.2d 859 (1994). This presumption, how ever, may be overcome by proof. Id. The proponent of the will has the burden of proving by a preponderance of the evidence that the decedent did not revoke the will during his lifetime. Garrett v. Butler, 229 Ark. 653, 317 S.W.2d 283 (1958); see also Thomas v. Thomas, 30 Ark. App. 152, 784 S.W.2d 173 (1990). This court in its de novo review on appeal will not reverse the findings of the probate judge unless they are clearly erroneous, giving due deference to his or her superior position to determine the credibility of witnesses and the weight to be accorded their testimony. Baerlocker v. Highsmith, 292 Ark. 373, 730 S.W.2d 237 (1987). In the present case, two ofWilliam Y.’s original wills had been given William Y for him to retain, but neither of the two wills could be found after his death. Under these circumstances and our case law, the trial court was correct in presuming William Y. had revoked his will before he died. Thus, the critical issue is whether the probate judge was clearly erroneous in concluding Vanpelt, as the proponent of William Y.’s will, offered sufficient evidence to overcome any presumption that William Y. had revoked his will. We hold the record supports the judge’s decision.

The respective parties offered circumstantial but conflicting evidence on the revocation issue. For example, Barrera testified that William Y. had expressed on various occasions that all five of his children should be treated equally, and that, on one occasion after execution of their wills in 1973, both William Y. and his wife gave each of the five children a gift of $5,000.00. Barrera also related that, after his wife’s death, William Y. said that he had five children and now his assets would be divided among the five children. Barrera’s husband testified to the same effect, namely, that William Y. wanted all of his children to share equally in his estate. William R.’s testimony corroborated the Barreras’, plus he added that his relationship with William Y. had changed for the better “sometime in the 1970’s around his parents’ 50th wedding anniversary.” And finally, Arlina Jefferson, William Y.’s caretaker during his final months, testifed that, although Wilham Y. had never mentioned a will, he had told Jefferson that he wanted ah his children treated equally.

The probate judge was provided with contrary evidence to that presented by Barrera, which, if believed, showed William Y. had never revoked his 1973 will. In this respect, we first note that, while William Y. and his wife executed mutual wills in 1973, no direct evidence was offered at the hearing of the probate of Wilham Y.’s will that showed he had actually revoked his will or had said he had revoked or destroyed his will. In fact, even though Barrera and William R. both testified that William Y. had denied ever having executed a will like his wife’s (disinheriting William R.), considerable evidence was presented showing they had executed identical wills. It is further undisputed that, as mentioned earlier, a copy of Wilham Y.’s 1973 will was found in his lockbox after he died. This court has held that a photocopy of a properly executed and attested will can be probated in place of a lost or destroyed will. See Tucker v. Stacy, 272 Ark. 475, 616 S.W.2d 473 (1981). In the present case, Wilham Y. not only had an original copy of his 1973 will in his lockbox, but also he knew his attorney Hubert Alexander had retained the third original will. Nonetheless, no evidence was offered showing Wilham Y. had made any effort to revoke or destroy the will retained by Alexander. Nor was any evidence introduced reflecting William Y. had made any attempt to destroy the copies of his will previously given to his daughters.

The foregoing evidence, plus testimony establishing that Wilham Y. and his wife bore and retained ill feelings towards William R. for suing the family business and reporting it to the IRS, is sufficient to support the probate judge’s decision to probate William Y.’s will. From this evidence, we beheve the judge could reasonably conclude, as he did, that, if Wilham Y. had intended for all of his children to receive equal shares, he had from 1973 to his death to prepare another will, and that, other than the fact that two ofWilham Y.’s three original wills were missing, the evidence preponderated in showing William Y. had not revoked his will.

Affirmed.

       We note that, in Spicer v. Estate of Spicer, 55 Ark. App. 267, 935 S.W.2d 576 (1996), our court of appeals considered § 28-1-102(a)(11) (1987) and held that, because appellant was a beneficiary of the trust and a second codicil affected his beneficial interest, he had standing as an “interested person.”


author: Donald L. Corbin, Justice.

text:
    Darin DANIEL and Dana Honeycutt-Daniel, On Behalf of Themselves and the Citizens, Residents, Taxpayers, and Inhabitants of White County, Arkansas v. The Honorable Glen JONES, County Judge of White County, Arkansas, et al.
    97-634
    966 S.W.2d 226
    Supreme Court of Arkansas
    Opinion delivered April 9, 1998
    [Petition for rehearing denied May 14, 1998.]

      Nichols, Wolff, Ledbetter & Campbell, by: H. Gregory Campbell and Mark W. Nichols, for appellants.

      Gill Law Firm, a professional association, by: C. Tad Bohannon, for appellees (White County Judge and Quorum Court Members).

      Lightle, Beebe, Raney, Bell & Hudgins, by: Mike Beebe and Donald Raney; Williams & Anderson, by: Leon Holmes and J. Madison Barker, for appellees (Mayors of White County Cities).

       Thornton, J., would grant.

   Donald L. Corbin, Justice.

This is a class-action suit claiming an illegal exaction. Appellants Darin Daniel and Dana Honeycutt-Daniel, on behalf of themselves and the citizens, residents, taxpayers, and inhabitants of White County, appeal the judgment of the White County Chancery Court dismissing their claim against Appellees, the White County judge, members of the quorum court, the county treasurer, the mayors of the various cities in White County, and the State of Arkansas. Appellants’ claim concerns a county ordinance passed by a majority of voters that imposed a countywide one-percent (1%) sales tax. The ballot reflected that the revenues generated from the sales tax would be used for five designated purposes. It is not disputed that the tax revenues are being used for purposes other than those stated on the ballot. On appeal, Appellants argue that using the tax proceeds for purposes other than those designated on the ballot violates Article 16, § 11, of the Arkansas Constitution of 1874 and Ark. Code Ann. § 26-74-308 (Repl. 1997). Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(1) & (17)(vi), as the issues raised require our interpretation of the Arkansas Constitution and acts of the General Assembly. We find merit to Appellants’ argument and reverse.

The relevant facts are not in dispute and were stipulated to by all parties. On July 19, 1989, the White County Quorum Court adopted Ordinance No. 89-14 to set a special election to submit for the voters’ approval the levy of a one-percent (1%) countywide sales tax. Ordinance No. 89-14 provided in part:

BE IT ENACTED BY THE QUORUM COURT OF THE COUNTY OF WHITE, STATE OF ARKANSAS: AN EMERGENCY ORDINANCE TO BE ENTITLED: AN ORDINANCE TO PLACE BEFORE THE VOTERS OF WHITE COUNTY A PROPOSAL FOR A COUNTY WIDE ONE PERCENT (1%) SALES TAX AND FOR OTHER PURPOSES.
SECTION 1.
That pursuant to Act 991 of 1981 the General Assembly of Arkansas empowered the various Quorum Courts of the respective Arkansas counties with the authority to call an election for the levy of a one percent (1%) county wide sales tax. That said election shall be held within one hundred and twenty (120) days of the ordinance calling for the election. ([Ark. Code Ann. §] 26-74-307)
SECTION 2.
That the County is in need of additional funding to maintain the present level of services now provided to the people of White County and to enable the County officials to plan for future growth and services and solid waste management.
SECTION 3.
That the ballot title shall be as follows:
[ ] “For adoption of a one percent (1%) sales tax within White County.”
[ ] “Against adoption of a one percent (1%) sales tax within White County.”

On August 15, 1989, the county quorum court adopted Ordinance No. 89-17 as an amendment to Ordinance No. 89-14. Ordinance No. 89-17 reflected in pertinent part:

Be it enacted by the Quorum Court of the County of White, State of Arkansas: An Ordinance to be entitled:
An Ordinance to designate the use of the revenue generated by the 1% sales tax that will appear on the Ballot during a Special Election Tuesday August 22, 1989.
SECTION 6. That it is the consenses [sic] of the White County Quorum Court, that revenues generated from the imposition of the tax be divided as follows:
A. 50% County Road
B. 25% County General
C. 5% Volunteer Fire Departments
D. 10% Non-Mandated Services
E. 10% Capital Improvements

A special election was held on August 22, 1989, wherein the voters were presented with the ballot for Ordinance No. 89-17, which read in pertinent part:

COUNTY SALES TAX
An ordinance to adopt a one percent (1%) sales tax within White County.
The sales tax money is to be used as follows:
50% for County Road
25% for County General
5% for Volunteer Fire Departments
10% for Capital Improvements
10% for Non-Mandated Services (includes Extension Office, Program for Aging, County Library and Veterans Office)

FOR adoption of a one percent (1%) sales tax within White County

AGAINST adoption of a one percent (1%) sales tax within White County

The voters approved the measure. White County began levying and collecting the sales tax on October 1, 1989, and is currendy doing so. Since October 1, 1989, the State of Arkansas has received the tax monies collected and remitted the funds to the county and its cities on a per capita basis. White County receives a check each month from the State Treasurer for approximately 45.50% of the sales tax collected. Upon receipt of the county’s share of the revenues, the county treasurer prepares a report allocating those funds as set out in the foregoing ballot. The remaining 54.50% of the sales tax monies, however, is distributed by the State Treasurer among the cities on a per capita basis. The cities then use their shares of the tax proceeds for their own purposes. Neither Ordinance No. 89-14, Ordinance No. 89-17, nor the actual ballot disclosed to the voters that the cities within the county would receive a portion of the sales tax proceeds, or that such proceeds would be used for purposes other than those designated in Ordinance No. 89-17 and the ballot. Nor do the ballot and ordinances reveal the method by which the sales tax is to be collected and distributed to the various governmental entities. The ordinances and the ballot further do not mention that the State Treasurer would deduct the sum of three percent (3%) from the sales tax collected as a service fee, pursuant to Ark. Code Ann. § 26-74-313 (Repl. 1997).

On June 22, 1995, Appellants filed their complaint pursuant to Article 16, § 13, of the Arkansas Constitution, requesting that the trial court declare the levy and collection of the one-percent (1%) sales tax an illegal exaction. Appellants requested further that the trial court grant an injunction to prevent county officials from collecting the sales tax and a mandatory injunction ordering the refund and return of taxpayer monies illegally exacted, after apportionment of reasonable attorney’s fees pursuant to Ark. Code Ann. § 26-35-902 (Repl. 1997). Subsequent amended complaints were filed, wherein Appellants claimed, among other things, that the sales tax monies were being levied and collected in violation of Article 16, §11, of the Arkansas Constitution and section 26-74-308. Specifically, they contended that because the ballot and Ordinance No. 89-17 declared particular uses for the revenues generated from the sales tax, all such revenues must be spent only for those designated purposes, and for nothing else. They claimed that because the ballot and ordinances failed to disclose that portions of the sales tax proceeds would be distributed to the cities, it was illegal to give them any share of such proceeds.

Appellees filed a motion to dismiss the complaints pursuant to ARCP Rule 12(b)(6), insisting that the sales tax was being collected in accordance with Arkansas law and that Appellants had failed to state sufficient facts upon which relief could be granted. They asserted that Act 991 of 1981, now codified at Ark. Code Ann. §§ 26-74-301 to -314 (Repl. 1997), requires that portions of the sales tax collected be distributed to the cities within the county levying the tax. They contended that Act 991 does not contain any exceptions to the State Treasurer’s statutory duty to distribute portions of the tax to the cities, and that the county imposing the tax has no responsibility or control over the distribution of the proceeds. Additionally, Appellees asserted that Act 991 provides that cities within the county may spend their shares of the tax revenues for any purpose for which their general funds or the county’s general funds may be used. They argued further that the designation on the ballot of how the revenues generated from the tax would be spent referred only to the way in which the county’s share of those revenues would be spent, and that this should have been evident to the voters by the fact that the ballot referred to such uses as “County Road” and “County General.”

The trial court agreed with Appellees and granted their motion to dismiss. The trial court ruled that Act 991 is the authority by which this sales tax was implemented, and that just as the Act enables the county to levy such a tax, it also limits the power of the county to undertake such action. The court found that Act 991 directs the State Treasurer to distribute the sales tax collected to the county and the cities on a per capita basis after the State Treasurer deducts a three-percent (3%) service charge. See section 26-74-313. The trial court found further that the State Treasurer had fulfilled such statutory duties in this particular instance. The trial court ruled that the designation on the ballot by the quorum court of the proposed uses of the tax revenues, as provided in section 26-74-308(c), pertained only to the, county’s share of the revenues, and that the designation by the county as to its intended uses of the revenues could not bind the cities as to how they must use their shares of the revenues. To allow the county to control the cities’ shares, the trial court reasoned, would empower the counties beyond that authority specifically delegated to them by the General Assembly.

The trial court also found that section 26-74-308 (c), included in Act 278 of 1983, makes no reference to the cities or state and speaks in terms of proceeds derived from the tax, rather than revenues collected. Accordingly, the trial court reasoned that such a reference is applicable only to the revenues received by the county after the State has deducted its appropriate percentage and the cities have received their respective portions. The trial court found that Act 991, as amended and reenacted, is the later enactment of law and that it controls as to any conflict with Act 278. The trial court ruled that there was no violation of Article 16, §11, as the White County sales tax is being distributed according to statute in pursuance of law.

Appellants now contend that the trial court erred in dismissing their claim, as they assert that the collection of the county sales tax revenues and their distribution to the cities for purposes other than those designated on the ordinances and ballot, violates Article 16, § 11, of the constitution and section 26-74-308. Appellants argue that the voters of White County who approved the sales tax were entitled to rely upon that information provided on the ballot as the final word of how the revenues would be spent. We agree.

Before reaching the particular arguments raised by Appellants, we must determine whether the chancellor’s order was in fact a dismissal under Rule 12(b)(6) or a grant of summary judgment as provided in Rule 56. When considering a Rule 12(b)(6) motion to dismiss, the trial court must treat the facts as true and view them in the light most favorable to the party who filed the complaint. Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574 (1997). The trial court must not look beyond the complaint unless it is treating the motion as one for summary judgment. Id. The trial court must not lend consideration to any factual conclusions reached through the arguments of counsel and exhibits and may not base its decision on allegations contained in the briefs and exhibits. Id. Here, there were no questions of fact to be determined. The parties to the action agreed upon and stipulated to the relevant facts and exhibits, thereby acknowledging the truth of such facts. The chancellor clearly treated the motion as one to dismiss for failure to state facts upon which relief could be granted. Thus, upon review, we also must construe the complaint liberally, accepting the facts alleged as true and viewing them in a light most favorable to Appellants. Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997).

Act 991 is a comprehensive delegation by the General Assembly to the county quorum courts of the authority to impose a countywide one-percent (1%) sales tax. Sections 26-74-307 and -308 provide for the precise method of calling for an election to levy such a sales tax and the required form of the ballot. Section 26-74-308(c) provides:

(c) The ballot may also indicate designated uses of the revenues derived from the sales tax and, if the tax is approved, the proceeds shall only be used for the designated purposes. [Emphasis added.]

Section 26-74-313 provides in pertinent part:

(b) . . . any sales tax collected by the director under this subchapter on behalf of any county shall be deposited with the State Treasurer in trust and shall be kept in a separate suspense account.
(d) (1) The State Treasurer shall transmit to the treasurer or financial officer of each city and county their per capita share, after deducting the amount required for claims, overpayments, and bad checks, as certified by the director.
(3) Transmittals shall be made at least quarterly in each fiscal year. Funds so transmitted may be used by the cities and counties for any purpose for which the city’s general funds or county’s general funds may be used. Before transmitting these funds, the State Treasurer shall deduct three percent (3%) of the sum collected as a charge by the state for its services specified in this subchapter[.] [Emphasis added.]

Appellants rely on section 26-74-308(c), as well as Article 16, § 11, of the constitution, for their argument that the tax currently being levied by White County is an illegal exaction; they contend that because the ballot reflected only five designated purposes for the tax revenues, any other use of the revenues is in conflict with that section and the constitution.

Appellees contend that sections 26-74-308(c) and 26-74-313 can be read harmoniously, if we adopt the reasoning of the trial court that the designated uses or purposes that may be declared on the ballot, as provided in section 26-74-308(c), refer only to the county’s use of its share of the tax revenues, not to the whole of the sales tax collected. They contend that the legislature has permitted the county to designate specific purposes on the ballot, but that it has nonetheless required the State Treasurer to distribute the tax revenues to the county and its cities on a per capita basis. To accept Appellants’ reading of the statutory provisions, Appellees urge, would completely defeat the entire taxation scheme designed by the General Assembly.

We initially turn to the issue of whether the sales tax currently being levied and collected is an illegal exaction in violation of Article 16, § 11, of the Arkansas Constitution. For purposes of interpreting our constitution, we have made clear that when the language of the provision is plain and unambiguous, each word must be given its plain, obvious, and common meaning. Oldner, 328 Ark. 296, 943 S.W.2d 574. “Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision.” Foster v. Jefferson County Quorum Court, 321 Ark. 105, 108, 901 S.W.2d 809, 810 (1995). Article 16, § 11, provides:

No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same; and no moneys arising from a tax levied for one purpose shall be used for any other purpose. [Emphasis added.]

In Oldner, we stated that the express intent of that constitutional provision “is for the object to be stated so that the tax revenues cannot be shifted to a use different from that authorized.” 328 Ark. at 305, 943 S.W.2d at 579. It is the use of the funds for a different purpose that constitutes an illegal exaction. Id. (citing Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989); Bell v. Crawford County, 287 Ark. 251, 697 S.W.2d 910, cert. denied, 475 U.S. 1120 (1985)). Where a primary purpose of the tax could not be accomplished, but the collection of the tax was continued, this court held that an illegal exaction had occurred. Hasha v. City of Fayetteville, 311 Ark. 460, 845 S.W.2d 500 (1993). Similarly, in Oldner, we held:

When a tax is enacted by the General Assembly or approved by a vote of the people without the statement of a purpose, the resulting revenues may be used for general purposes. We fail to see how the voting public could be misled on this point. It is only when a diversion of tax revenues occurs from a specific purpose that has been authorized to an unauthorized purpose that an illegal exaction occurs. We have no doubt that that is the evil sought to be remedied by Article 16, § 11.

328 Ark. at 305, 943 S.W.2d at 579 (emphasis added). Whether the governmental entity levying and collecting the tax intended to put the revenues to “good use” is of no consequence, so long as the funds are being spent on any purpose other than those specified on the ballot. Hartwick, 300 Ark. 502, 780 S.W.2d 531.

Here, there is no dispute that the revenues coEected from the sales tax are being spent by the cities of White County for purposes other than those five uses designated on the baEot. There is no aEegation that the county has applied any of its share of the revenues to any other purposes other than those designated on the baEot. The question then becomes whether the voters were otherwise put on notice of the fact that the cities, as weE as the State, would receive their portions of the revenues as set out in section 26-74-313.

AppeEees contend that the cities’ portions of the revenues are being spent in accordance with the purposes set out in section 26-74-313(d). They argue that this court should look to that section, as weE as the remainder of Act 991, to determine whether the tax revenues are being spent appropriately pursuant to Article 16, §11. We disagree with this argument.

We held in Oldner, 328 Ark. 296, 943 S.W.2d 574, that for purposes of construing Article 16, § 11, the “law imposing the tax” is the levying ordinance. Accordingly, we look to the levying ordinance, rather than the enabling legislation, in determining whether the expenditures of the tax revenues are authorized. Here, the levying ordinance, Ordinance No. 89-17, declared five specific purposes for the tax revenues, the same five purposes that were subsequently designated on the baEot. The voters of White County were entitled to rely upon the information provided to them in the levying ordinance and the baEot when casting their votes; hence, any use of the revenues for purposes other than those provided constitutes an Elegal exaction. This conclusion is consistent with this court’s long-held position that the baEot title is the final, definitive statement to the voters as to that which they are being asked to decide.

In Arkansas-Missouri Power Corp. v. City of Rector, 214 Ark. 649, 654, 217 S.W.2d 335, 337 (1949), this court held that it is to the title of the ordinance and the ballot title “that the electors had the right to look to ascertain what they were asked to approve[.]” This court held further that “[t]he ballot title is the final word of information and warning to which the electors had the right to look as to just what authority they were asked to confer [.]” Id. Correspondingly, in Christian Civic Action Comm. v. McCuen, this court observed:

It has long been regarded as axiomatic that the majority of voters, when called upon to vote for or against a proposed measure at a general election, will derive their information about its contents from an inspection of the ballot title immediately before exercising the right of suffrage. This, indeed, is the purpose of the ballot title.

318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994) (citations omitted). In Ragan v. Venhaus, 289 Ark. 266, 711 S.W.2d 467 (1986), upon which Appellants rely, this court held that “[t]he citizens are entitled to be informed by plain language about what they are voting, and this court has long insisted on that standard.” Id. at 271, 711 S.W.2d at 469. Mere references to acts of the legislature in a ballot title were insufficient to inform voters about what it was they were voting, as “[t]he voters do not have ready access to the acts of the legislature, and we cannot presume they know what repealing effects a later act may have on a former act.” Id. (emphasis added).

We are thus not persuaded by Appellees’ argument that the White County voters could have known, ostensibly from an inspection of the statutory law, that the cities would receive their per capita shares of the tax revenues as set out in section 26-74-313. Appellees rely on this court’s holding in City of Little Rock v. Waters, 303 Ark. 363, 797 S.W.2d 426 (1990), in support of this argument. At issue in that case was Act 31 of 1987, which provided that in all counties where the voters had approved a sales tax, pursuant to Act 991 of 1981 or Act 26 of the First Extraordinary Session of 1981, a use tax of equal rate would be imposed automatically, without requiring the approval of the voters. This court upheld the imposition of the use tax on the grounds that the General Assembly has the inherent authority to impose a tax and that there is no fundamental right of the citizens to vote on that issue. Appellees argue that the holding in Waters is applicable here, as they contend that in both cases, the complaint is that the voters who approved the sales tax were not informed of the implications of corresponding legislative enactments.

We decline to follow the reasoning of Waters. Instead, we conclude that the holding in Waters is incorrect, and we overrule that decision to the extent that it conflicts with our holding today. We now embrace the reasoning expressed by the dissent in that case, namely that the voters’ right to be fully informed of the matter for which they are casting their votes is paramount. In other words, where the General Assembly has established the right of the voters to approve the imposition of a tax, any consideration of the legislature’s general power to tax is secondary to the voters’ right to full disclosure of the nature of the tax and its proposed purposes. “[T]he General Assembly only authorizes the imposition of the tax. It is imposed by a vote of the people who will pay it.” Waters, 303 Ark. at 373, 797 S.W.2d at 432 (Newbern, J., dissenting).

Applying such reasoning to the present case, we conclude that the White County voters’ right to full disclosure as to how the tax revenues would be spent outweighs any consideration of the General Assembly’s authority to establish the particular scheme of distribution of those revenues. Both the levying ordinance and the ballot reflected five designated purposes for which the sales tax revenues would be used. The voters were instructed by the ballot that if the one-percent (1%) sales tax was approved, all the revenues generated would be spent in those five areas. The voters were not specifically informed, nor could they be presumed to have known, that the legislative act that empowered the county to levy such a tax also provided that the cities would be given their per capita shares of the revenues and would be allowed to spend the money for purposes other than those designated on the ballot.

Accordingly, any use of the sales tax revenues for purposes other than those designated by the levying ordinance and the ballot is in violation of Article 16, § 11, of the Arkansas Constitution and constitutes an illegal exaction. We thus reverse the ruling of the trial court and remand for further proceedings consistent with this opinion.

       On appeal, Appellants do not dispute that the State is to receive three percent of the sum collected from the tax as a fee for its services. This court has previously upheld the State’s right to receive such fee. See Porter v. McCuen, 310 Ark. 562, 839 S.W.2d 512 (1992) (holding that such allocation is mandated under existing law).


author: Robert L. Brown, Justice.

text:
    Patricia ANDERSON and Nina Kelly v. Herbert GRAHAM, Roger Raney, and W.A. Raney d/b/a R & W Trucking Company, a Partnership
    97-58
    966 S.W.2d 223
    Supreme Court of Arkansas
    Opinion delivered April 9, 1998

      Stephen T. Arnold, for appellants.

      Dunn, Nutter, Morgan & Shaw, by: W. David Carter and Christie G. Adams, for appellees.
   Robert L. Brown, Justice.

Appellants Patricia Anderson and Nina Kelly appeal from the denial of a motion for a directed verdict and denial of a motion for a new trial. They urge that each ruling constituted error by the trial court. We disagree on both counts and affirm.

On September 14, 1992, Anderson and Kelly were the driver and passenger, respectively, in a station wagon and had come to a stop on Highway 82, a two-lane road in Stamps. The reason for their stop was that the vehicle in front of them had come to a halt to make a left-hand turn at an intersecting street. While they were stopped, their car was hit from behind by appellee Herbert Graham, who was driving an 80,000 pound tractor-trailer rig owned by appellees Roger Raney and W.A. Raney d/b/a R & W Trucking Company, a partnership (Raney). Graham had just crested a small hill and was unable to stop in time to avoid the accident. Following the accident, both Anderson and Kelly were taken to the Magnolia Hospital and treated in the emergency room.

Anderson and Kelly subsequently filed suit against Graham and Raney for negligence and asked for damages of $250,000 and $1,343,978, respectively. A three-day jury trial followed in which Anderson and Kelly called Graham as an adverse witness as part of their case-in-chief. After they rested, they moved the court for a directed verdict on the basis that Graham had admitted negligence and, thus, the trial court should direct the jury to enter a verdict in their favor as a matter of law. The trial court declined to do so. Much of the plaintiffs’ case and the defense case consisted of medical records and deposition testimony of doctors regarding the physical condition of Anderson and Kelly. Graham and Raney presented medical evidence of accidents after the 1992 accident at issue where Kelly had suffered injuries similar to those complained of in this case. On cross-examination of Anderson, they also brought out that she was involved in a 1994 accident in which she injured herself in some of the same areas complained of in the present matter.

Following the verdict and entry of judgment, Anderson and Kelly moved for a new trial, claiming that the jury verdict was against the great weight and preponderance of the evidence. In making their motion, Anderson and Kelly repeated that Graham had essentially admitted both his negligence and the fact that the accident was the proximate cause of their injuries. The new-trial motion was denied. Anderson and Kelly now claim on appeal that it was error for the trial court to deny both motions.

We first consider the claim by Anderson and Kelly that it was error to deny their directed-verdict motion. We initially address the uniqueness of such a motion. In Morton v. American. Med. Int’l, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985), we stated: “[w]e are not aware of any Arkansas case in which a verdict for the party not having the burden of proof has been set aside in a negligence case solely because it was not supported by substantial evidence.” The same still holds true.

In Morton, this court fully explained the difficulty of a plaintiffs appeal from a denial of a directed-verdict motion:

The argument now made is presented so rarely that it seldom finds its way into the books. We did consider it in Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962). There the plaintiff, having lost below, argued that there was no substantial evidence to support the verdict and that (as it would logically follow) a verdict should have been directed for the plaintiff. In rejecting that argument we quoted with approval this language from United States Fire Ins. Co. v. Milner Hotels, 253 F.2d 542 (8th Cir. 1958):
Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.

Morton, 286 Ark. at 90, 689 S.W.2d at 536. See also Young v. Johnson, 311 Ark. 551, 845 S.W.2d 509 (1993). We then went forward in Morton and stated the common-law rule as expressed in Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558 (1931), that the defendant is entitled to have the jury assess the credibility of the plaintiffs case even though the defendant offers no evidence himself. The jury may believe or disbelieve the plaintiffs witnesses irrespective of the fact that the evidence is uncontradicted and unimpeached. Morton, 286 Ark. at 90, 689 S.W.2d at 536.

On the same day that our opinion in the Morton case was handed down, this court delivered its opinion in Schaeffer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985). In Schaeffer, the plaintiff appealed from a jury verdict in favor of the defendant, under facts similar to those in the case before us, and from the denial of a motion for a new trial. The plaintiff argued that there was no evidence to support the jury’s verdict in favor of the defendant because plaintiff s vehicle had been struck from behind by the defendant’s vehicle while stopped in traffic. This court observed that the fact plaintiffs vehicle was struck from the rear did not raise a presumption of negligence and that the jury’s verdiet could very easily have been attributed to the fact that the road at the time of the accident was glazed with ice and snow. We noted that where sufficiency of the evidence is the issue on appeal, our standard of review is whether the verdict is supported by substantial evidence.

We also affirmed in Schaeffer the notion that the defendant is under no obligation to present any evidence contradicting the plaintiffs case. We stated:

Obviously in appeals from a verdict for the defendant the rule [of substantial evidence] cannot always be read literally, as the defendant may have introduced little or no proof, yet the jury found against the plaintiff. It makes little sense in such cases for the appellant to argue the strict application of the rule, insisting that a reversal is required because the defendant’s proof failed to meet the substantial evidence test. The evident fact is the plaintiff failed to convince the jury, or fact finder, of an essential element of proof. That seems to have been the case with this jury, it simply did not think the defendant was negligent, or that the plaintiffs injuries were proximately caused by the negligence, if any. Thus, the lack of substance is not with the defendant’s proof, but with the plaintiffs. See Morton v. American Medical International, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985).

Schaeffer, 286 Ark. at 115, 689 S.W.2d at 539.

In Weber v. Bailey, 302 Ark. 175, 787 S.W.2d 690 (1990), this court reviewed a case that was factually similar to the instant case. In Weber, the defendant was driving a pickup truck and pulling a stock trailer when he came over the crest of a hill, saw vehicles stopped in front of him, and was unable to stop his truck before running into the back of the plaintiffs vehicle. The defendant testified that he was driving forty to forty-five miles per hour at the time he topped the hill, even though the posted speed limit was thirty-five. He further testified that he saw the vehicles after climbing the hill, and that they were forty or fifty yards down the hill. The jury returned a verdict in favor of the defendant. This court quoted with approval the passages from Morton and Schaeffer set out above, and concluded that “the questions of negligence and proximate cause were for the jury to decide, and it resolved them in [defendant’s] favor.” Weber, 302 Ark. at 178, 787 S.W.2d at 692.

Anderson and Kelly contend that their case differs from the Morton-Schaeffer-Weber line of cases. They say this is so because here Graham admitted to negligence. We disagree. It is true that Graham testified to the following facts:

• that he knew about the particular stretch of Highway 82 and the location of the hill he crested before the accident and that there were intersecting streets on the other side of the hill;
• that he saw the Anderson/Kelly station wagon ahead;
• That he could have avoided the accident if he had been driving at a reduced speed; and
• that he continued at a steady speed regardless of the dangers ahead.

Anderson and Kelly particularly underscore this exchange between Graham and counsel for Anderson and Kelly which, they urge, shows that Graham admitted negligence:

Counsel: But you elected on your own, even though you knew you were loaded and even though you knew this hill was here, you elected to proceed over that hill at thirty to thirty-five miles per hour, didn’t you?
Graham: I selected the speed that I could go through town without holding up a lot of traffic without having to downshift more trying to pull up and down hills.
Counsel: That was for your convenience, wasn’t it, sir?
Graham: Well, my convenience and the other traffic convenience.

Graham, for his part, argues that the evidence viewed most favorably in his light as appellee is:

• that his speed going through Stamps was 29 to 30 m.p.h. going up hills and as high as 35 m.p.h. going down hills. The speed limit was 30 m.p.h.;
• that to stop in time after cresting the hill, he would have had to be traveling 20 to 25 m.p.h.;
• that there were no warning signs about a dangerous intersection;
• that the sun momentarily blinded him at the top of the hill;
• that he hit his brakes as soon as he saw the station wagon but could not veer to the left because of an oncoming truck or to the right for fear of robing his truck over on top of Anderson/ Keby’s station wagon; and
• that there was not enough distance from the top of the hih to the station wagon for him to stop.

In this explanation, we discern no admission of negligence on Graham’s part. In fact, he maintains that he did everything he could to avoid the accident. Moreover, there was evidence in this case that the hill and the intersection were dangerous, and that a driver, using ordinary care, could find himself in the situation of not being able to stop in time to avoid a car stopped at the intersection. Even Kelly said to Anderson while they were halted at the intersection: “[T]his is a bad place to have to stop.” Hence, there is evidence to support a jury verdict that Graham acted reasonably under the circumstances.

We conclude that our standard of review with respect to the denial of the plaintiff s motion for directed verdict is whether the defendants’ case was utterly without a rational basis. See Morton v. American Med. Int’l, Inc., supra. It is clear to us that the case of Graham and Raney was not utterly without a rational basis. With regard to the denial of the motion for a new trial, we are of the opinion that there was substantial evidence to support the jury verdict, giving the verdict the benefit of all reasonable inferences permissible under the proof. See Bell v. Darwin, 327 Ark. 298, 937 S.W.2d 665 (1997); Weber v. Bailey, supra. Accordingly, we hold that the trial court did not err in denying either the motion for a directed verdict or the motion for a new trial.

Because we are not confronted in this case with the issue of a defendant who chose to present little or no evidence at trial, there is no need for us to consider this question, as we did in Schaeffer v. McGhee, supra. Moreover, since we conclude there was substantial evidence supporting a defendant’s verdict on the negligence question, we need not address the issue of causation.

Affirmed.

Thornton, J., not participating.


author: Per Curiam.

text:
    D.B. GRIFFIN WAREHOUSE, INC. v. Margaret SANDERS, Individually and as Administratrix of the Estate of Charles Sanders, Deceased, Appellee; Travelers Insurance Company, Intervenor
    CA 97-1573
    965 S.W.2d 784
    Supreme Court of Arkansas
    Opinion delivered April 9, 1998

      Daggett, Van Dover, Donovan & Perry, PLLC, by: J. Shane Baker, for appellant.

      Wilson & Valley, by: E. Dion Wilson, for appellee.
   Per Curiam.

On February 10, 1998, appellee Margaret Sanders filed a motion to dismiss the appeal filed by appellant D.B. Griffin Warehouse, Inc., on the basis that the filing of the record was not timely. The allegations made, and supported by three affidavits, are that appellant’s record was due for filing in the Supreme Court Clerk’s Office on December 31, 1997; that it was tendered but not filed on December 26, 1997, due to lack of a circuit court’s certificate, nonpayment of the filing fee, and failure to present the original record; that these defects were corrected after the filing deadline (apparently on January 2, 1998); and that the fifing of the record was stamped December 26, 1997. Documents sent out by the Supreme Court Clerk’s Office show the record was filed on December 26, 1997. The record itself shows receipt and fifing as of December 26, 1997.

It has long been the practice of the Supreme Court Clerk’s office to accept records which are tendered on time and to allow seven days for any errors in form to be corrected. Those errors may include subsequent payment of the fifing fee and certification of the record by the circuit clerk. When the defects are corrected, the date of fifing is the date the record was tendered — in this case, December 26, 1997.

We are mindful that Ark. Code Ann. § 21-6-401 (Repl. 1996) contemplates payment of a fifing fee before the record is filed and that our caselaw makes the payment of the fee a condition of the fifing, which is jurisdictional. See In Re Smith, 183 Ark. 1025, 39 S.W.2d 703 (1931). Here, of course, the fee was paid, and the record was marked “filed” as of the date it was tendered. Thus, the record was tendered within the jurisdictional time frame and was marked “filed” on that date after errors in form were corrected and the filing fee was paid.

It is clear to us that counsel for appellant relied on this practice by the Supreme Court Clerk’s office. In fact, counsel for appellee Sanders attaches a letter from appellant’s counsel as part of his Supplement to Motion to Dismiss, where appellant’s counsel states, in effect, that he understands that this is the practice of the clerk’s office.

Though the record in this case may not have been stamped filed as of December 26, 1997 until January 2, 1998, this was done in accordance with the longstanding practice of the clerk’s office.

The motion to dismiss is denied.

Newbern, J., not participating.


text:
    Edwin G. DIEHL v. STATE of Arkansas
    CR 98-304
    962 S.W.2d 369
    Supreme Court of Arkansas
    Opinion delivered April 9, 1998

      Gene O’Daniel, for appellant.
    No response.
   Per Curiam.

Appellant Edwin G. Diehl has filed a motion for belated appeal. Appellant was convicted on August 11, 1997, of driving while intoxicated, but he was not formally sentenced until September 10, 1997. The record reflects that the notice of appeal was filed on September 12, 1997; however, the judgment and commitment order was not entered until September 16, 1997. Thus, the notice of appeal was untimely and ineffective. See Ark. R. App. P. — Civ. 4.

Appellant’s attorney Gene O’Daniel has assumed responsibility for failing to verify that the judgment and commitment order had been filed prior to the filing of the notice of appeal. The motion reflects that Mr. O’Daniel was mistakenly informed by Appellant’s trial counsel that the notice of appeal had to be filed by September 12, 1997. Because he has admitted responsibility for the error, we grant the motion for belated appeal. We direct that a copy of this order be filed with the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).