author: David Newbern, Judge.

text:
    DONGIEUX’S v. Beatrice O. SHOAF
    CA 80-276
    608 S.W. 2d 33
    Court of Appeals of Arkansas
    Opinion delivered November 19, 1980

      F. W. Jeffcoat, for appellant.
    No brief for appellee.
   David Newbern, Judge.

This appeal is from a judgment obtained by the appellee in a breach of warranty action. The appellant sold washer-dryer equipment to National Credit Corporation (National) which transferred it to the appellee under a lease-purchase agreement for use in the appellee’s washateria.

A sep'arate action was filed by National against the appellee for breach of their agreement. In that action, the appellee counter-claimed alleging breach of warranty, and National impleaded the appellant on the appellee’s breach of warranty claim. That action was settled after the third party claim against the appellee had been dismissed without prejudice.

In the action on appeal here, the appellant filed in the trial court a motion to dismiss based on theories of res judicata and lack of privity of contract. The trial court denied the motion, and this appeal has mostly to do with whether the motion should have been granted. The appellant has raised eight points for reversal. We will discuss most of them and state further facts as necessary.

1. Res Judicata.

The appellant has stated no authority whatever on this point, and has simply said the order of the trial court in dismissing the action of National against the appellee upon settlement “resolved all differences among the parties, including any question of breach of warranty.”

All we know about the dismissal of the appellant from that lawsuit was that it was done “without prejudice.” The appellant does not explain how the theory of res judicata might apply to make that dismissal a bar to the appellee in the case before us. While we can think of some such theories, all of them questionable, we cannot argue the appellant’s case. If no authority is cited and the point raised on appeal is not obviously correct, we are not required to consider it. Cherokee Carpet Mills, Inc. v. Worthen Bank and Trust Co., 262 Ark. 776, 561 S.W. 2d 310 (1978); Hazen v. City of Booneville, 260 Ark. 871, 545 S.W. 2d 614 (1977); Shinn v. First National Bank of Hope, Arkansas, 270 Ark. 774, 606 S.W. 2d 154 (Ark. App. 1980).

2. Necessary party.

The appellant contends that National was a necessary party to the appellee’s suit against the appellant. The appellant cites Ark. Stat. Ann. § 85-2-318.1 (Add 1961), for the purpose of agreeing that privity of contract between the appellant and the appellee was not necessary to a suit for breach of warranty. Again, no authority is cited or argument made as to why National was a necessary party here. Our citations with respect to point one, supra, apply here also.

3. Evidence excluded.

The appellant contends the court improperly excluded testimony of the Cleburne County circuit clerk which would have shown that in the action by National against the appellee the appellee’s answer was not amended to allege breach of warranty until two months after it was first filed. Other than the appellant’s brief on the motion to dismiss, nothing has been abstracted by the appellant to show that any such evidence was proffered or reasons it may have been denied.

In an effort to be thorough and fair to the appellant, we have gone to the record and discovered the reason the evidence was excluded was because the appellant had not sought to have the pleadings as to which the clerk would have testified marked as exhibits at the pre-trial conference.

The same was true with respect to a deposition of a witness the appellant sought to introduce.

Although both of these items might have been admissible, the appellant has utterly failed to address the reason they were excluded, i.e., the court’s determination they should have been dealt with at the pre-trial conference. The appellant has stated no reason to say the court erred, and again, given no authority on the point and no argument of it. We decline to disagree with the trial judge.

4. Excessive damages.

In addition to citing no authority on this point, the appellant has abstracted none of the testimony in the case from which we might determine whether the jury, as he claimed, was inflamed by passion or otherwise prejudiced in award of damages. The abstract is thus insufficient to permit us to consider that point. Rule 9(d) of the Rules of the Arkansás Supreme Court and Court of Appeals.

5.Juror misconduct.

The remainder of the appellant’s points for reversal are argued without citation of authority, and we decline to consider them, with one exception. The appellant urges that the motion for a new trial should have been granted because a juror, whose deposition was obtained by the appellant, said she considered in reaching her verdict the fact that no representative of the appellant was “present” at the trial.

In response to this argument which, again, was made with no citation of authority, we need only cite evidence rule 606(b), Ark. Stat. Ann. § 28-1001 (Repl. 1979), which precludes a juror from giving testimony in any inquiry as to the validity of a verdict as to the effect of any such matter upon her mind or emotions in reaching the verdict.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    James E. CROSS v. Charles L. DANIELS, Director of Labor, and HUDSON FARMS
    E 80-122
    607 S.W. 2d 680
    Court of Appeals of Arkansas
    Opinion delivered November 19, 1980
    Appellant, pro se.

      Herrn Northcutt, for appellees.
   David Newbern, Judge.

In this employment security benefits case, the claimant was held to have been disqualified from benefits pursuant to Ark. Stat. Ann. § 81-1106(a) (Supp. 1979), for the reason that “he quit his last work because of illness, injury, or other disability but did not make reasonable efforts to preserve his job rights, prior to quitting.”

The claimant contended his health was adversely affected by a personality conflict with and harassment by one of his superiors, and that was the reason he quit his job.

The board of review agreed with that contention, given its finding and adoption of the statutory language quoted above. However, there was the additional finding the claimant did not do that which was necessary to preserve his job rights.

At the hearing before the appeals tribunal, the claimant requested that one of his superiors, Mr. Sellers, be subpoenaed for the purpose of testifying with respect to his attempts to transfer within the company or otherwise keep his employment but avoid the personnel situation of which he complained. The referee acknowledged his authority to grant a continuance and issue the subpoena but declined to do so until he determined, after hearing some other evidence, whether it was necessary to subpoena the witness requested.

At the conclusion of the hearing, he left the matter open, saying he would hold another hearing if after reviewing the evidence he felt it necessary. No further hearing was held, and thus the witness sought by the claimant was neither subpoenaed nor heard.

Given the fact the claimant sought the presence of the witness in question for the purpose of testifying on the very point upon which he was found to have been disqualified, we cannot understand why the subpoena was not issued. Clearly the referee had the authority to issue it. Ark. Stat. Ann. § Sill 14(h) (Repl. 1976).

In its pro forma affirmance of the appeals tribunal’s (referee’s) decision, the board of review did not even mention the claimant’s contention with respect to the subpoena he had sought although that clearly was the major point of his appeal.

The board’s decision is reversed and remanded with instructions to hold a further hearing after the witness sought by the claimant has been subpoenaed to appear.

Reversed and remanded.


author: John A. Fogleman, Chief Justice.

text:
    Ray RIDDICK v. STATE of Arkansas
    CR 80-148
    607 S.W. 2d 671
    Supreme Court of Arkansas
    Opinion delivered November 24, 1980

      Seay & Bristow, by: Bill W. Bristow, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

Appellant, Ray Rid-dick, was charged with arson and burglary arising from the allegation that he and one Leroy Dirlam burglarized and then set fire to the Circle Inn Restaurant in Manila, Arkansas on December 24, 1978. Dirlam died in the fire. The jury trial resulted in appellant’s acquittal for burglary and his conviction for arson. In accord with the jury verdict, appellant was sentenced to five years imprisonment. Riddick’s sole point on appeal is that his conviction should be set aside and he should be discharged because one who burns a structure at the request of the owner cannot be guilty of arson. Our arson statute provides:

(1) A person commits arson if he starts a fire or causes an explosion with the purpose of destroying or otherwise damaging:
(a) an occupiable structure that is the property of another person;

Ark. Star. Ann. § 41-1902 (Repl. 1977)

Appellant insists that since one of the elements of an arson conviction is that the property be that of another, an owner cannot be found guilty of arson in the burning of his own building; therefore, anyone who commits the offense at the owner’s request, as his agent, cannot be guilty of arson. To support his conviction appellant relies on a single Kansas case, State v. Cristendon, 205 Kan. 28, 468 P. 2d 153 (1970). In that case the owner of the burned structure had admitted hiring Christendon for the purpose of committing arson. The owner, himself, had been convicted of third degree arson and insurance arson. Christendon’s prosecution for first degree arson was dismissed by the trial judge on the grounds that as the. owner’s agent, Christendon could not be convicted of a higher crime than his principal. On the basis of the uncontroverted fact that Christendon was the owner’s agent in burning the structure, the Kansas Supreme Court affirmed. The facts in Christendon are easily distinguished from those involved here. There the owner had already been convicted and had admitted that Christendon was his agent, there was no question that Christendon was the owner’s agent; here, Frank Hamilton, the owner of the Circle Inn Restaurant, took the stand on rebuttal and emphatically denied soliciting either Riddick or Leroy Dirlam to burn his restaurant. Since it cannot be said that the owner’s participation is an uncontroverted fact, we cannot say that Christendon is controlling.

There was testimony presented by witnesses for the state, police officers who had investigated the scene, that not only was the Circle Inn fire of incendiary origin but that there was evidence that a burglery had taken place: Leroy Dirlam was found face down on the floor of the charred building, still clutching burnt checks; a cash register drawer lay nearby and money was scattered everywhere. The only evidence that Riddick had burned the restaurant at the owner’s instigation was the testimony of Everette Ercelle Duncan, appellant’s nephew. Duncan stated that appellant had come to him the night of the fire, badly burned on his hands and face and had asked Duncan to take him to Chicago. Duncan eventually took appellant to Bald Knob where appellant’s sister lived. During the drive, Duncan observed appellant throw some keys out the window of the moving car. Later appellant told Duncan the keys were given to him and Dirlam to get into the Circle Inn. After appellant had been admitted to the burn center at Baptist Hospital, Duncan visited him there. It was then appellant related that he had been hired, through his son-in-law Benny Murray, to burn the Circle Inn in Manila, Arkansas. Appellant never took the stand. There was no testimony from which a jury could find that Murray was authorized to act for Hamilton without speculation and conjecture.

The jury sitting as trier of fact, is often faced with conflicting accounts, either within the testimony of one witness or within the various statements of several witnesses. It is the jury’s role to weigh their credibility, assess the consistencies and inconsistencies, observe the witnesses as they testify and believe those parts of the testimony they believed to be true and disregard those they believed to be false. Rose v. State, 122 Ark. 509, 184 S.W. 60; Powell v. State, 149 Ark. 311, 232 S.W. 429; Houpt v. State, 249 Ark. 485, 459 S.W. 2d 565; Mumphrey v. State, 251 Ark. 25, 470 S.W. 2d 589; Henderson v. State, 255 Ark. 870, 503 S.W. 2d 889. We cannot say that it was error for the jury, on the evidence presented, to find that Riddick did intentionally burn the Circle Inn Restaurant, in concert with Leroy Dirlam and without the owner’s consent. It is interesting to note here that appellant, at trial, refused instructions on the lesser offenses of reckless burning and criminal mischief, limiting the jury to consideration of arson alone with reference to appellant’s participation in the fire. It was not unreasonable for the jury to find appellant guilty of arson.

In oral argument and in his motion for directed verdict, appellant advanced a theory that is ancillary to his contention that the jury necessarily found him guilty of burning the building as the agent of the owner. That theory was based upon the verdict acquitting him of the crime of burglary. The information on which appellant was tried contained two counts. In the first, Riddick was charged with burglary by entering the occupiable structure of Hamilton with the purpose of committing theft of property; in the second, he was charged with arson by starting a fire and/or causing an explosion with the purpose of destroying and damaging an occupiable structure. We are unable to follow this argument. The verdicts do not seem necessarily inconsistent to us, but, even if they are, appellant, having been acquitted of burglary, is in no position to complain, if the evidence supports the verdict on the arson count. Rooks v. State, 199 Ark. 1188, 136 S.W. 2d 481. In this case, the evidence was sufficient to warrant a conviction of both offenses, so appellant cannot complain of the jury’s extending him greater leniency than he was entitled to. Cook v. State, 80 Ark. 495, 97 S.W. 683. The two counts are, in effect, two independent charges and a verdict in one would not be res judicata as to the other, even though based upon the same evidence, so consistency in the verdicts is unnecessary. Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356, 80 ALR 161 (1932). As pointed out in Dunn, the verdict may have resulted from compromise or mistake on the part of the jury, but verdicts cannot be upset by speculation or inquiry into such matters.

The judgment is affirmed.


text:
    Jerry Hardy McCROSKEY v. STATE of Arkansas
    CR 80-151
    608 S.W. 2d 7
    Supreme Court of Arkansas
    Opinion delivered November 24, 1980

      E. Alvin Schay, State Appellate Defender, by: Jack Kearney, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

This is the second appeal in this case. The first appeal was assigned to the Court of Appeals pursuant to Rule 29 (3) of the Rules of the Supreme Court and Court of Appeals. The judgment of conviction was reversed because of the admission of the confession of a co-defendant and because of statements of the prosecuting attorney in closing argument focusing attention upon the fact that appellant had failed to take the witness stand. Appellant was again tried on the charge of aggravated robbery, found guilty and sentenced, as a habitual criminal, to 30 years imprisonment. He asserts on this appeal that the trial court erred by admitting into evidence testimony regarding pretrial identifications of appellant and in allowing an improper ■ in-court identification.; Appellant also contends that the judgment should be reversed because of improper comments by the prosecuting attorney during closing arguments.

As we understand appellant’s argument as to the in-court identification, he is contending that the trial judge never ruled that it was admissible as independently reliable and that there is no evidence to show its reliability. Appellant’s argument is focused for the most part, on the testimony of Joyce Laurell, an employee of Kentucky Fried Chicken at 7620 Cantrell Road, where the robbery was alleged to have occurred. She testified that at about 5:30 p.m. on August 12, 1978, a man entered the kitchen, where she was, through a swinging door, walked past her into the office área, looked into the office and then walked back to her. She said that this man addressed her, stood close to her, and asked her, in a low voice, if she could open the safe. She said that this man was white, tall and slender and that he wore a gray felt hat with a little feather in it and tinted, wire-rimmed sunglasses. Miss Laurell testified that, when she told this man she could not open the safe, he told her to get the money in the cash register, so she went to the register, “pulled the twenty” activating an alarm (which calls the police but is silent in place of business), removed the money in the register, returned to the kitchen, put the money in a bag and walked back to the office where the man was standing near the safe. She pointed to the defendant as that man. She said that, after she unsuccessfully tried to open the safe at the instruction of this man, he took the bag containing the money and told her he was leaving through the back door and that she should not follow him. She stated that she was positive that the defendant was the man who came into the place of business, intimidated her with a weapon (which she did not see) and took the money and that there was no question in her mind. She estimated that the time lapse between the white male’s coming into the kitchen and his leaving was 10 or 15 minutes.

On cross-examination she testified that she had written out a statement about the occurrence at the request of the police officers who had responded to the alarm 10 or 15 minutes after the robber had left, but had failed to include in it a description of the robber. She was unable to explain why she had not included a description but said that she knew the defendant was the man. She also admitted that when she gave a statement 13 days later, she again failed to include a description of the robber.

Appellant’s attorney then pursued a line of cross-examination emphasizing the elapsed time between the occurrence and the trial as a year and a half, or 455 days, and that Miss Laurell was identifying appellant on what she saw at the time of the occurrence. She admitted that she had been unable to identify a black male with whom she said she saw appellant leave the premises, although she had seen this man in the front part of the place of business when she went to the cash register and had engaged in conversation with him. She denied that the deputy prosecuting attorney had, earlier in the day, told her that the defendant would be sitting in court that day.

On redirect examination, the witness stated that defense counsel had asked her if she had previously testified under oath in court about this matter and she had said that she had. It was also brought out that she and the other employees present had given a description of the robber to the police officers after they had responded to the alarm and that the officers had written a description from these statements. She confirmed the description, basically, as: white male, 21 years old, six feet two inches, 145 pounds, dark hair, brown eyes; hat, gray felt; shirt, white and blue jeans.

A hearing at the bench was then conducted. The deputy prosecuting attorney said that, since defense counsel had questioned the ability of the witness to identify the robber after 455 days, he wanted to go into prior identifications, one of which was in a lineup 13 days after the robbery. The trial judge ruled that the witness might be asked if she had identified appellant at the time she gave her statement to the police 13 days after the incident. He would not, at that time, permit any inquiry pertaining to her identification of appellant at the previous trial. Thereafter, Miss Laurell testified, over appellant’s objection, that she had been able to identify McCroskey when she gave her second statement, that she was then certain that he was the man who robbed her, that she was still certain that he was, and that there was no doubt in her mind about the matter.

Later, an in camera hearing was held. The deputy prosecuting attorney insisted upon producing evidence that Joyce Laurell picked appellant as the robber from a fair lineup and that other employees who had testified picked appellant as the robber from photo spreads that were not suggestive. That hearing was a prolonged argument about the admissibility of testimony relating to previous identifications of appellant by witnesses who were at the place of business at the time of the robbery. We are unable to find any request by appellant during these hearings, out of the hearing of the jury, that the trial court exclude the in-court identifications. Yet appellant now argues that these were inadmissible and that, in the absence of a specific finding by the trial judge, the in-court identification of appellant was not admissible. We find no objection to the admissibility of these identifications during the trial in appellant’s abstract of the record. Although appellant did file a pretrial motion to suppress in-court identifications, it was never called up for hearing and appellant announced that he was ready for trial wihtout its having been heard. A bench-side statement by the prosecuting attorney that it had been withdrawn by appellant was never controverted. It is sufficient to say that appellant’s contention in this respect is totally without merit. The question is raised for the first time on appeal, so we will not consider it further, except to say that the authorities cited by appellant do not support his argument. Actually, we- have held that an in-court identification can be held inadmissible as a matter of law only if, after viewing the totality of the circumstances, it can be said that the identification was patently unreliable. Mayes v. State, 264 Ark. 283, 571 S.W. 2d 420. We find none of the in-court identification was patently unreliable. Furthermore, the only suggestion that the in-court identifications were tainted by pretrial procedures is the cross-examination pertaining to the possibility of a suggestion by the deputy prosecuting attorney that the person would be in the courtroom. This was denied and no showing was made that it had occurred.

Each of the witnesses who was present during the robbery was cross-examined extensively along the lines pursued in cross-examination of Miss Laurell about the reliability of his in-court identification. Each of them was positive and unwavering in identifying appellant. Some of the witnesses, testifying after the in camera hearing, were permitted, over appellant’s objection, to state that they had seen the defendant, whom they had identified after the robbery but before the second trial, were then able to recognize him as the robber, and had been positive in their identification of him, but were identifying appellant upon the basis of having seen him in August, 1978.

The tactics of defense counsel were appropriate. Ele was seeking to discredit the identification testimony of the witnesses, and to, at least, raise a reasonable possibility of mistake by reason of the lapse of time between their observation of the robber and the trial. It has been said that reliability is the linchpin in determining the admissibility of identification testimony (Lindsey v. State, 264 Ark. 430, 572 S.W. 2d 145); however, reliability of eyewitness identification is a question for the jury (as appellant’s trial counsel recognized), unless procedures leading to the identification are so defective as to undermine its reliability in which case the identification is inadmissible as a matter of law. Synoground v. State, 260 Ark. 756, 543 S.W. 2d 953. It was not shown that the in-court identifications were so tainted.

The evidence as to prior identifications was perhaps more restricted than necessary, particularly in view of the serious attack upon the reliability of the in-court identifications by cross-examination. We have held that an eyewitness to an offense may testify that he saw or identified an accused after the offense was committed. Cromwell v. State, 269 Ark. 104, 598 S.W. 2d 733; Bishop v. State, 236 Ark. 12, 364 S.W. 2d 676; Spivey v. State, 247 Ark. 752, 447 S.W. 2d 846. In Birones v. State, 105 Ark. 82, 150 S.W. 416, we held that it was competent for the victim of a crime to state how often she had seen the defendant before and after the commission of a crime and whether she recognized him. Recently we held that where, as here, the victim of a crime had been extensively cross-examined about an in-court identification of the accused and the description given to the police by the witness, the subject of prior identification is thereby opened up, and testimony by that witness as to a previous identification is not prejudicial error. White v. State, 270 Ark. 487, 605 S.W. 2d 11 (1980).

It is noteworthy that evidence of an out-of-court identification, formerly excluded as hearsay is not always hearsay and is admissible, over a hearsay objection when, as here, the witness making the identification testified and is subject to cross-examination at the trial. Ark. Stat. Ann. § 28-1001, Rule 801 (d) (1) (Repl. 1979). There was an implication of recent fabrication in appellant’s cross-examination of Miss Laurell, relating to conversation with the prosecuting attorney about appellant’s presence in the courtroom. Her previous identification of appellant was admissible as a prior consistent statement to rebut that charge. Ark. Stat. Ann. § 28-1001, Rule 801 (d) (1) (ii) (Repl. 1979). We find no error in connection with the admission of identification testimony.

Appellant complains of the following comments in the closing argument of the deputy prosecuting attorney:

If that’s all you did was go straight to the robbery and then bring a witness into court and say, “Do you see this man sitting at the table or do you see the defendant in the courtroom” you know, and kind of point at him, well, that wouldn’t be fair. But, if anything unfair was done, did Mr. Simpson ask about it? No, you can be assured that the identification in this case is a fair one and it is based on the knowledge of the witnesses.

We simply do not understand appellant’s objections. The trial court properly ruled that “this is argument.” The prosecutor was free to argue any inference reasonably and legitimately deducible from the evidence. Willis v. State, 220 Ark. 965, 251 S.W. 2d 816. The trial court has a wide latitude of discretion in controlling the arguments of counsel and its rulings in that regard will not be overturned on appeal in the absence of clear abuse. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387. We find no abuse of discretion in this instance.

Appellant also contends that there is reversible error in the sentencing phase of the bifurcated trial when the trial court overruled appellant’s objection that the prosecuting attorney improperly commented upon appellant’s failure to take the witness stand by the following remarks during his argument to the jury.

Normally, the ones of you who have served before know that a person, when he takes the stand, his prior criminal record comes up and that usually is the only time it comes up. But this is a little different situation.
When you get a person charged as being an habitual criminal under the habitual criminal statute, after the jury has found him guilty, then they are allowed to hear his prior record.

The guilt of defendant had already been determined by the jury. The only thing that remained for its consideration was the punishment. The deputy prosecuting attorney was merely explaining to the jury that it had heard about the criminal record of the defendant and that this was different from the usual procedure.

Appellant relies upon Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, 24 ALR 3d 1065 (1967), and Adams v. State, 263 Ark. 536, 566 S.W. 2d 387. Adams was premised upon the fact that the jury could have surmised from the prosecuting attorney’s remarks that the defendant’s failure to testify was an admission of guilt, and that the remarks might have contributed to the conviction of the defendant in that case. The remarks here could not possibly have influenced the jury in convicting the defendant and there was no basis for surmising that appellant admitted guilt. Even the prior convictions were stipulated, and, as the judge remarked, without any inference that appellant could offer any rebuttal to that evidence.

In Chapman, the state’s attorney filed his argument to the jury from beginning to end with numerous references to the silence of the defendants and inferences of their guilt resulting therefrom. The trial judge instructed the jury that it could draw adverse inferences from their failure to testify. It was pointed out in the opinion that the case was such that, in the absence of the prosecutor’s comments, honest, fair-minded jurors might very well have brought in not guilty verdicts. For that reason, the United States Supreme Court concluded that the constitutional error could not be considered harmless. This case bears no resemblance to Chapman. The statement of the prosecuting attorney here is not of the nature of those in Chapman. Appellant’s guilt had already been determined and no honest, fair-minded jury could have found that he did not have the stipulated prior convictions.

It would have been better if the prosecuting attorney had left procedural explanations to the trial judge, but even if we found that there was error in his remarks, we can say with assurance that, in this case, it was harmless beyond a reasonable doubt.

The judgment is affirmed.


author: George Rose Smith, Justice.

text:
    William TURNER v. Isaac Leonard BAILEY
    80-211
    607 S.W. 2d 674
    Supreme Court of Arkansas
    Opinion delivered November 24, 1980

      John Wesley Hall, Jr., P.A., for appellant.
    No brief for appellee.
   George Rose Smith, Justice.

This appeal from a default judgment was certified to this court by the Court of Appeals. Rule 29 (4) (b).

When both parties were living in Florida the plaintiff Bailey, a race-horse trainer, agreed to train two horses owned by the defendant Turner, an attorney. In July, 1978, Bailey moved to Arkansas and brought the horses here. Two months later he brought this action on the contract, alleging that Turner owed $5,843.75 in training fees and necessary expenses. Constructive service was obtained by warning order.

Turner filed a motion to dismiss and then employed an Arkansas attorney, who filed an answer and counterclaim for Turner. That attorney, however, later asked the trial court for permission to withdraw, asserting that Turner had requested an immediate termination of the attorney’s services. On December 3, 1979, the court entered an order permitting the attorney’s withdrawal for just cause, striking all the defendant’s pleadings, allowing the defendant to file additional pleadings within 30 days to avoid being in default, and directing that the order be served upon the defendant by registered mail. It does not appear that the order was in fact served upon the defendant Turner.

On February 21, 1980, the court entered an order reciting that the issues had been joined and that a pretrial hearing was set for April 21, 1980. Turner appeared pro se at that hearing, but the court entered a default judgment for the amount sued for, finding that Turner had filed no pleadings within 30 days after receipt of notice to do so. This appeal followed.

The appellee's attorney, pursuant to Rule 10, has filed a letter stating that due to the nature of the case the appellee will not file a brief. We must therefore decide the case upon the record as abstracted by the appellant, it being the appellee’s responsibility to bring to our attention any matters justifying the judgment of the trial court. Murphy v. Wilson, 228 Ark. 727, 310 S.W. 2d 1 (1958).

The judgment appears to be erroneous, because Turner was not actually in default. He had appeared in the case by filing a motion to dismiss, an answer, and a counterclaim. Of course, the court may permit an attorney to withdraw from the case, but that alone does not justify the striking of all pleadings filed by him on behalf pf his client. Sterling v. Jones, 255 La. 842, 233 So. 2d 537 (1970); Bailey v. Coventry, 130 Misc. Rep. 269, 224 N.Y.S. 17 (1927). It does not appear that the order striking Turner’s pleadings and requiring him to plead anew within 30 days served upon him, as the order itself required. In the absence of any showing that Turner had notice of that order, the judgment finding Turner to be in default must be set aside.

Reversed and remanded for further proceedings.


author: Frank Holt, Justice. John F. Stroud, Justice,

text:
    CORD-CHARLOTTE SCHOOL DISTRICT NO. 8 v. INDEPENDENCE COUNTY BOARD OF EDUCATION et al
    80-145
    608 S.W. 2d 12
    Supreme Court of Arkansas
    Opinion delivered November 24, 1980
    [Rehearing denied December 22, 1980.]

      Seay & Bristoiv, by: Bill W. Bristow, for appellant.

      G. Ross Smith, P.A., for appellees.
   Frank Holt, Justice.

This case involves the validity of the transfer of 31 students by the Independence County School Board, pursuant to their parents’ petition, from the Cord-Charlotte School District No. 8 to the adjoining Newark School District No. 33. Both districts are in that county.

It appears that in 1951, the Cord area and Charlotte area were consolidated into one district. In 1972, after a study of the facilities in the district, the State Board of Education recommended, inter alia, that the facilities (the elementary school at Cord and the high school at Charlotte) be consolidated or located at one site. In 1979 a bond issue was narrowly approved in a heated election for the purpose of financing construction of a new elementary facility at Charlotte. The elementary school at Cord would be closed and all children in the district would attend school at Charlotte. Subsequently some parents of the Cord area enrolled their childen in the contiguous Newark District with its approval. Thereupon, Cord-Charlotte filed an action in chancery court to enjoin the Newark District from accepting these students. During the pendency of that action, the students’ parents petitioned the County School Board for transfer approval, asserting their concern about the quality of education their children were afforded at Cord-Charlotte and also the existence of ill will between the students’ parents, the superintendent and the board members of the Cord-Charlotte District, A hearing was held and the board approved the transfer. The chancellor then ruled that, although the students’ initial attendance was illegal, the action of the school board constituted a legal transfer and could only be challenged by appeal to the circuit court. Appellant appealed the board’s decision to the circuit court pursuant to Ark. Stat. Ann. § 80-236 (Repl. 1980). That court, after considering the transcript and exhibits from the board’s proceeding and hearing additional evidence, upheld the actions of the school board. This appeal results.

The appellant asserts several errors concerning procedural matters before the county board and, also, questions the sufficiency of the evidence to support the board’s decision. Primarily, it is insisted that the board, in considering the educational facilities were better in the adjoining Newark District failed to consider the total impact upon the losing district; i.e., the loss of 31 students or 13% of the district’s total enrollment (241), which resulted in the loss of about $25,000 in state and federal funds. This en masse transfer, consequently, would have a ruinous effect upon the district’s finances and, thus, adversely affect the quality of the educational program for the balance of the students in the district. However, we find it unnecessary to discuss these arguments since we agree with appellant’s additional contention that the transfer is impermissible without the consent of the sending district.

Ark. Stat. Ann. § 80-1517 (Repl. 1980) provides in pertinent part:

The county board of education shall have power, upon the petition of any person residing in any particular school districts, to transfer the children or wards of such persons to a district in the same county, or to a district in an adjoining county for school purposes.

Ark. Stat. Ann. § 80-1518 (Repl. 1980) provides:

From and after the passage of this act [March 3, 1937] no county court [county board of education] shall make an order transferring any school child or children from one [1] district to another until and unless the consent of the Board of Directors of the district to where such child or children are sought to be transferred has been secured in writing, such written consent to be filed in the office of the County Clerk of the county from which such child or children are to be transferred.

Ark. Stat. Ann. § 80-1528 (Repl. 1980) provides:

A local Board of Education may, by mutual agreement, provide for the admission to any school of pupils residing in adjoining districts whether in the same or different counties, and for transfer of school funds or other payments by one [1] Board to another for or on account of such attendance.

In Bell v. Howard County Training School, 236 Ark. 742, 368 S.W. 2d 266 (1963), we construed these statutes. Students there had previously attended the Howard County Training School District #38, lying in Howard and Sevier Counties, which was administered by the Howard County School Board. The students, residents of that district, had been admitted to a school district in Sevier County with the approval of that district board and the Sevier County Board of Education. The Howard County Board and the district board refused to consent to the transfer of the students on the theory that consent was necessary. In agreeing with this contention, after discussing the statutes relied upon here by appellant, we said:

While we concur that a child cannot be transferred to another district without the consent of the Board of Directors of the receiving district, we do not agree that the paramount authority rests with the Board of the receiving district; rather, a valid transfer requires the ‘consent’ of both the ‘sender’ and the ‘receiver.’ The transfer must be made by the County Board of Education in which the ‘sending’ district is located (80-1517), or in the case of adjoining districts, by mutual agreement between the two local Boards of Education ('sending' and 'receiving). (Italics supplied.)

Appellees argue that a close reading of Bell indicates that §§ 80-1517 and 80-1628 operate independently of each other and do not constitute a limitation on one or the other. Further, that if approval of the sending district is required in every case, then § 80-1517 would be rendered superfluous. After careful study, we are of the view that appellant correctly relies upon the interpretation of Bell as requiring the “sending” district’s approval. Here the efforts of the county board to resolve the problem by agreement were unsuccessful and the “sending” district has steadfastly refused the transfer ap proval. We, also, note the record reflects the board had before it the long-standing policy of the State Department of Education, based upon Bell, as interpreted by the Attorney General, that in case of a transfer of students from adjoining districts, approval is required by both the “sending” and “receiving” district.

Reversed.

Fogleman, C.J., and Stroud, J., dissent.

John F. Stroud, Justice,

dissenting. I dissent from the holding in this case that a transfer of students from one school district to another is impermissible without the consent of the sending school district. The applicable statutes do not make such requirement, nor does Bell v. Howard County Training School, 236 Ark. 742, 368 S.W. 2d 266 (1963), the only case cited or relied upon by the majority opinion.

Two methods for the transfer of students are provided by the statutes. Ark. Stat. Ann. § 80-1528 (Repl. 1980), quoted in the majority opinion, applies only to adjoining districts (in the same or different counties) and allows the transfer by “mutual agreement” of both local Boards of Education. The other method is set out in Ark. Stat. Ann. § 80-1517 (Repl. 1980), which is also quoted in the majority opinion. It merely vests the county board of education with the power upon petition to transfer children to another school district in the same or an adjoining county. The only consent required is contained in the ensuing statute which prohibits the transfer “until and unless the consent of the Board of Directors of the district to which such child or children are sought to be transferred had been secured.” The transfers in this case were made pursuant to § 80-1517 and § 80-1518 which clearly do not require consent of the school district from which the students were transferred.

The majority opinion, although quoting these statutes, does not really indicate that the language therein requires the consent of the “sending” school district, but instead, relies on the Bell case, supra, to reach that conclusion. In that case the students transferred from the Howard County Training School District No. 38 administered by the Howard County Board of Education to a school district in Sevier County. The opinion did not say the “sending” district must consent to the transfer, but rather that the “sender” must consent. The “sender” in the Bell case was not the school district but the Howard County Board of Education from whom no consent was obtained. In the cases now on appeal, the transfer was between two school districts within the same county and the “sender” was the Independence County School Board which did specifically authorize the transfers. In Bell, the court pointed out that a transfer had not been properly made under either of the statutory methods:

The transfer must be made by the County Board of Education in which the ‘sending’ district is located (§ 80-1517), or in the case of adjoining districts, by mutual agreement between the two local Boards of Education (‘sending’ and ‘receiving’) (Section 80-1528). . . . neither the Howard County Board of Education nor the Howard County Training School District No. 38 school board approved the transfer of these students. Thus, the pupils were not transferred in accordance with the provisions of either § 80-1517 or § 80-1528. It follows that the transfer was not properly made.

It is obvious that the Bell case did not read the mutual consent requirement of § 80-1528 into § 80-1517. To do so would nullify § 80-1517, a position completely incompatible with the specific finding of Bell that both methods of transfer do exist. Neither a long-standing policy of the State Department of Education nor an opinion of the Attorney General is justification for this court to add a provision to an existing statute. Such is the responsibility of the General Assembly.

Finding no merit in any of appellant’s points on appeal, I would affirm the judgment of the trial court.

Fogleman, C.J., joins in this dissent.

       Ark. Star. Ann. § 80-213 [Acts 1941, No. 327, § 11, p. 838]


author: Frank Holt, Justice. John A. Fogleman, Justice,

text:
    THE SOUTHERN COMPANY, INC. v. James GRAHAM and Verdie Mae GRAHAM, d/b/a GRAHAM DRIVE-IN
    80-237
    607 S.W. 2d 677
    Supreme Court of Arkansas
    Opinion delivered November 24, 1980

      Brown. Compton & Prewett. P.A., by: Eugene D. Bramblett, for appellant.

      Faulkner. Goza & Rollins, by: V. Benton Rollins, for appellees.
   Frank Holt, Justice.

This is a products liability case. The appellees purchased two gasoline underground storage tanks, gasoline pumps, lines, and other accessory equipment from appellant. These items were installed by the appellant in October of 1975 on appellees’ premises, a drive-in business, which included a laundromat, restaurant, motel, and a house trailer. In July, 1976, the appellees and their customers began to notice the odor of gasoline in the water system. Appellees’ water supply consisted of a 30' deep well located 40' or 50' from the underground storage tanks. This well supplied water for the trailer, restaurant and motel. Another well, 94' in depth and located uphill approximately 25' from the first well, supplied water to the laundromat. Gradually, the odor became worse and the tap water began to show a substantial amount of gasoline in it. Eventually, appellees had to stop using the water supply and began hauling water in by truck. In June and July, 1977, at appellees’ request, appellant tested the equipment fqr leaks and found none. The contamination continued to worsen. In August, 1977, or a month later, the appellant removed the tanks, lines and other equipment, and again the test revealed no leaks; however, parts of a protective coating on the tanks were corroded by gasoline. The tanks were recoated' and reinstalled. Appellant does not question the contamination of the well closest to the pumps. Appellant acknowledges that when making the last test for leaks, it found this well contained 6 and 1/2" of gasoline on the surface of the water. Appellees testified that after the removal and reinstallation of the tanks, lines and other equipment, the contamination began to gradually lessen, and it was almost nonexistent at the time of trial in April, 1979-

Appellant filed this action in chancery court to enforce its liens on the premises because of appellee’s refusal to pay appellant $3,719-92 for testing and reinstalling the equipment. The appellees filed a cross-complaint seeking to recover from appellant the damages caused by the gasoline contaminated water. The chancellor found appellant was liable, under Ark. Stat. Ann. § 85-2-318.2 (Supp. 1979), and allowed a setoff against appellant’s claim. Appellant asserts that the trial court erred in finding for the appellees on strict liability since the appellees failed to establish by a preponderance of the evidence that the product was supplied to them in a defective condition and the defective condition was the proximate cause of the harm to the property. Appellant argues there was no evidence that the tanks, lines and pumps were supplied in a defective condition; rather, the evidence as to the tests shows they were not defective. Therefore, it was speculation to say these products caused the damage when other causes were possible and not ruled out.

We have adopted the doctrine of strict liability in torts in products liability cases. Section 85-2-318-2, supra, provides:

A supplier of a product is subject to liability in damages for harm to a person or to property if:
(a) the supplier is engaged in the business of manufacturing, assembling, selling, leasing or otherwise distributing such product;
(b) the product was supplied by him in a defective condition which rendered it unreasonably dangerous; and (3) the defective condition was a proximate cause of the harm to person or property.

The doctrine of strict liability does not change the burden of proof as to the exitence of a flaw or defect in a product. However, it does away with the necessity of proving negligence in order to recover for injuries resulting from a defective product. Higgins v. General Motor Corp., 250 Ark. 551, 465 S.W. 2d 898 (1975); and Cockman v. Welder’s Supply Co., 265 Ark. 612, 580 S.W. 2d 455 (1979). Prosser, The Fall of the Citadel, 32 ATL L.J., p. 21 (1968), has discussed the elements of proof:

Strict liability eliminates both privity and negligence; but it still does not prove the plaintiff s case. He still has the burden of establishing that the particular defendant has sold a product which he should not have sold, and that it caused his injury. This means that he must prove, first of all, not only that he has been injured, but that he has been injured by the product. The mere possibility that this may have occurred is not enough, and there must be evidence from which the jury may reasonably conclude that it is more probable than not .... The plaintiff must prove also that he was injured because the product was defective, or otherwise unsafe for his use ....

Further is Prosser Torts, § 102, p. 672 (4th Ed. 1971), it is stated that such proof may be by circumstantial evidence:

The difficult problems are those of proof by circumstantial evidence. Strictly speaking, since proof of negligence is not in issue, res ipsa loquitur has no application to strict liability; but the inferences which are the core of the doctrine remain, and are not less applicable. The plaintiff is not required to eliminate all other possibilities, and so prove his case beyond a reasonable doubt. As on other issues in civil actions, it is enough that he makes out a preponderance of probability. It is enough that the court cannot say that reasonable men on the jury could not find it more likely than not that the fact is true.

See also, Woods, Comparative Fault, §§ 14:18 and 14:19 (1978); and Restatement, Torts 2d § 402A (1965).

It is true, as appellant argues, that liability cannot be based on mere conjecture and guess. Delta Oxygen Co. v. Scott, 238 Ark. 534, 383 S.W. 2d 885 (1964). However, in the absence of direct proof of a specific defect, it is sufficient if a plaintiff negates other possible causes of failure of the product, not attributable to the defendant, and thus raises a reasonable inference that the defendant as argued here, is responsible for the defect. Higgins v. General Motors Corp., supra, and Cockman v. Welder’s Supply Co, supra. See also Jakubowski v. Minnesota Mining and Manufacturing, 42 N.J. 177, 199 A. 2d 826 (1964); Greco v. Bucciconi Engineering Co., 407 F. 2d 87 (3rd Cir. 1969); Corbin v. Camden Coca-Cola Bottling Co., 290 A. 2d 441, 60 N.J. 425 (1972); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F. 2d 631 (8th Cir. 1972).

The burden of proof was upon appellees to show that the circumstances surrounding the transaction were such as to justify a reasonable inference of probability rather than a mere possibility that appellant is responsible. Appellant argues it could have been caused by car owners overflowing their tanks, the surplus running down through some broken concrete into the sand below and into the ground. However, appellees testifed they broke the concrete over the tanks after the problem arose so appellant could dig up the tanks to test them. Appellees replaced the concrete afterwards. The contention that the supplier could have spilled gasoline when filling the storage tanks was also rebutted by appellees. Although appellant argues there may have been gasoline stored at a lumber mill in the vicinity which could be causing the contamination, the mill was separated from appellees’ business by a valley, and there was no evidence that gasoline was stored there. It is also asserted there is no evidence negating the possibility that the contamination resulted from some source of gasoline, such as the gasoline station 3 miles distant, which might be transmitted by the underground water table. The evidence, however, is uncontroverted that no contamination of appellees’ water system existed during the 30 years appellees were in business preceding appellant’s installation of its product. Further, since appellant’s removal, testing, recoating, and reinstalling their product, the presence of gasoline in their water system has gradually diminished and has become practically eliminated.

In our view, the chancellor correctly found by a preponderance of the evidence that appellees’ evidence sufficiently negated the other possible causes argued by appellant, and, therefore, appellant is responsible for appellees’ damages.

Affirmed.

Fogleman, C.J., dissents.

John A. Fogleman, Justice,

dissenting. I dissent because I do not think that other potential causes of gasoline appearing in appellees’ water well were sufficiently negated.


author: Darrell Hickman, Justice.

text:
    Olga COLLYARD v. AMERICAN HOME ASSURANCE COMPANY
    80-247
    607 S.W. 2d 666
    Supreme Court of Arkansas
    Opinion delivered November 24, 1980

      Gibbs & Henry, P.A., by: Gary R. Gibbs and D. Scott Hickam, for appellant.

      Laser, Sharp & Huckabay, P.A., for appellee.
   Darrell Hickman, Justice.

Olga Collyard, a seventy-three year old woman, sued the American Home Assurance Company for injuries that she alleged resulted from a slip and fall at the Hot Springs YMCA. The suit was filed directly against the insurance company because the YMCA is a charitable organization.

The Garland County Circuit Judge granted the insurance company’s motion for summary judgment, which we find to have been in error.

The appellant filed a complaint alleging that the YMCA was negligent in permitting water to remain on the floor and that such negligence caused the accident. The insurance company simply filed a general denial and set up specifically the defense of contributory negligence and assumption of risk. The company’s motion for summary judgment was not supported by an affidavit or by any evidence that the YMCA was not negligent; it was supported only by the deposition of Collyard.

In the deposition, Collyard did state that she did not know how the water got there or how long it had been on the floor. Because of this statement the judge ruled that the fact was not an issue as to whether the YMCA had acted negligently. This decision was based on several of our cases which hold that the presence of a foreign or slick substance which causes a slip and fall is not alone sufficient to prove negligence. It must be proved that the substance was negligently placed there or allowed to remain. LeMay v. W. & R. Corp., 262 Ark. 530, 558 S.W. 2d 154 (1977). While that is a correct statement of the law it does not relate to whether summary judgment should have been granted.

The trial judge ruled that since the appellant did not respond to the motion by a counter-affidavit or proof that the water had been negligently placed there or allowed to remain there, the fact was not in issue. Rules of Civil Procedure, Rule 56, was cited for this conclusion.

Rule 56 makes no such requirement. The appellant alleged negligence on the part of the YMCA. The appellee never controverted this allegation by affidavit or other proof. It simply offered the deposition of Collyard that she did not know how the water got there or how long it had been there. The appellee and trial judge mistakenly presumed that the burden was on Collyard to come forward with additional proof on this issue. The burden in a summary judgment proceeding is on the moving party; it cannot be shifted when there is no offer of proof on a controverted issue. The object of a summary judgment is not to try the issues but to determine if there are issues of fact. Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76 (1967).

Whether the YMCA was negligent remained a fact in issue. If appellant had offered proof that the YMCA was not negligent, then Collyard would have had to produce a counter-affidavit or proof refuting the offer. But that was not the case. The appellee based its motion only on the deposition of Collyard, the plaintiff. The allegation in the complaint remained uncontroverted and Collyard should be permitted to present other evidence on that fact.

The trial court implied that Collyard’s own negligence caused the accident. It is wrong to say as a matter of law that she is barred from recovery because of her own negligence simply because she saw the water before the fall. That is a jury question.

Reversed and remanded.


author: John I. Purtle, Justice.

text:
    James H. MOOSE, Jr. v. George H. MOOSE et al
    80-248
    608 S.W. 2d 3
    Supreme Court of Arkansas
    Opinion deliverd November 24, 1980
    [Rehearing denied December 22, 1980.]

      Edivard Gordon, for appellant.

      W. P. Hamilton, for appellees.

      Edmund M. Massey, for appellees David and LaVonna Gregory.
   John I. Purtle, Justice.

The Conway County Chancery Court entered an order on February 1, 1980, directing the substitute trustee to carry out the agreement of sale of trust property entered into April 1, 1975, by William M. Bruce, Jr., trustee, and the Gregorys as buyers. This order was entered by the chancery court in accordance with a mandate received from the Arkansas Court of Appeals. The Court of Appeals had determined the agreement of sale was valid and binding on the parties and further that it was effective on April 1, 1975. The Supreme Court of Arkansas had refused to grant certiorari on the decision by the Court of Appeals. The trial court subsequently entered an order on February 29, 1980, the substance of which was that the trust was terminated on April 1, 1975, and the proceeds of the trust estate would be distributed in the same proportion that the income from the trust had been distributed up to the date of the sale of the trust property. The court further held that William M. Bruce, Jr. had inherited his share, which was one third of the value of the trust property, prior to his death on May 9, 1975, and the said William M. Bruce, Jr. died testate leaving his surviving spouse, Miriam D. Bruce, as his sole beneficiary. The court held that Miriam D. Bruce was therefore entitled to William Bruce’s one third share of the estate in accordance with the terms of the will of William M. Bruce, Jr.

On appeal it is argued that (1) the sale cannot be consummated by a successor trustee in this case; (2) the order of February 1, 1980, is erroneous because it brings about an inequitable result; (3) the doctrine of relation back does not apply in this case; and (4) the court should have found the trust continued beyond the sale of the property in question. We do not agree with appellant on any of the points argued for reversal and therefore affirm the trial court.

Mrs. Howard died in 1932 and her will set up a testamentary trust with Mrs. Ewan, one of her three children, serving as trustee during her lifetime. The corpus of the trust, which consisted of the farm in question here, could not be sold during the lifetime of Mrs. Ewan. William M. Bruce, Jr., one of Mrs. Howard’s grandchildren, was to be the successor trustee with the full power to sell any or all of the assets of the trust. Mrs. Ewan died in 1962, and William M. Bruce, Jr. took over and managed the property until 1975. Mr. Bruce became aware of a terminal illness and exercised his power to sell the property. On April 1, 1975, he entered into a contract of sale between himself as trustee and David and LaVonna Gregory. There were certain things to be performed by each of the parties in closing the sale. These items were not all completed before the death of Mr. Bruce on May 9, 1975. The heirs of Mrs. Howard filed a suit relating to the sales agreement on the trust property and the matter came eventually to the Arkansas Court of Appeals. The Court of Appeals found that the agreement entered into on April 1, 1975, between William M. Bruce, Jr., trustee, and the Gregorys was a valid and enforceable contract. Therefore, this part of the dispute is settled, and we will not discuss the validity of the contract as all issues on this are precluded by the opinion of the Court of Appeals. Gregory, et al v. Moose, et al, 266 Ark. 926, 590 S.W. 2d 665 (1979). Certiorari denied by the Supreme Court of Arkansas, 267 Ark. 86, 590 S.W. 2d 662 (1979).

When the case was returned to the Conway County Chancery Court on February 1, 1980, the chancellor ordered the terms of the sale to be immediately carried out. On February 15, 1980, the petitioners, George Howard Moose, Robert I. Moose, Union National Bank of Little Rock and Miriam D. Bruce, filed a motion in chancery court asking the court to rule that the rights of the parties had become fixed as of April 1, 1975, the date of the agreement by trustee Bruce to sell to the Gregorys. On February 29, 1980, the trial court granted the petition fixing the sale and investure of the proceeds of the state on April 1, 1975. The court further found that Miriam Bruce was the beneficiary under the will of William Bruce and was entitled to the one third of the proceeds of the trust estate as it had terminated and vested as of April 1, 1975. In other words, the court found that the transaction related back to the date of the agreement of sale.

In view of the nature of this case we will consolidate the arguments on appeal and treat them all together. This whole case revolves around the issue of whether the agreement to sell the property entered into by trustee Bruce and the Gregorys on April 1, 1975, was effective at that time for the purposes of the trust or whether it was effective in 1980 when the closing papers were finally distributed. The decision as to the effective date of sale in this case determines whether Miriam Bruce will receive a one third interest in this estate. If it is effective at the date of the agreement of sale, Miriam Bruce would receive one third interest in the estate, James S. Moose, Jr. would receive one third, and the remaining one third would be equally divided between George H. Moose, Robert I. Moose and Clarkia Moose Turney. The last three heirs are the children of Howard Moose, deceased, and the nephews and niece of James S. Moose, Jr. On the other hand, if it is effective as of the closing date in 1980, Miriam Bruce would receive nothing, James S. Moore, Jr. would receive one half of the estate, and the other half would be divided between George H. Moose, Robert I. Moose and Clarkia Moose Turney.

The validity and enforceability of the contract has previously been established by the Arkansas Court of Appeals. We think all issues, except the effective date of the sale, have either been disposed of in prior decisions or were not timely raised in the trial court. We agree that William Bruce’s powers as trustee were personal, confidential and discretionary. He had absolute power to dispose of the trust property or any party thereof. This power of sale was exercised by Mr. Bruce prior to his death. No exercise of discretion is necessary for the successor trustee to complete the terms of the sale as the only things left to be done are purely administrative matters. We think the provision in the will which controls is as follows:

At any time after the death of Mrs. George H. Ewan the Trustee is empowered at his discretion to sell any part or all of the estate, and for said purpose the absolute fee simple title thereto is hereby vested in the said trustee in trust, and shall be absolutely binding upon all the beneficiaries named herein, and their descendants, and such conveyance shall vest an absolute title in the purchaser. Such sale by said Trustee shall operate as a termination of this trust as to all the property sold or disposed of by him, and the proceeds arising therefrom shall constitute a part of my estate and trust fund in their hands, and distributed in the same ratio as the annual income as above set forth.

We think a fair interpretation of this provision of the will enabled trustee Bruce to sell the property and such sale “shall operate as a termination of this trust as to all the property sold or disposed of by him.” The plain wording of this section states that the trust has ended as to all of the property since this land was the only property included in the trust. The will further directed that the “proceeds arising therefrom shall constitute a part of my estate and trust fund in their hands, and distributed in the same ratio as the annual income as above set forth.”

Although this Court had previously ruled in Moose v. Moose (February 22, 1977, not designated for publication) that the trust did not violate the rule against perpetuities and declared the trust would terminate on the death of the last surviving grandson, the court did not hold the trust could not be terminated prior to that date pursuant to provisions of the trust. Although James S. Moose, Jr., one of the named grandsons, is still alive, we hold the trust terminated when William Bruce sold the property on April 1, 1975. Therefore, the trial court made a proper determination of those who received the proceeds of the trust. We believe that the rule of equitablé conversion applies in this case. The Gregorys were considered in equity as trustees of the purchase price for the vendor and William Bruce, trustee, held the property as security for the purchase price. It has been stated that where the property passes under contract a conversion operates from the time of the instrument. 27 Am. Jur. 2d Equitable Conversion § 15, Page 498. In Turner v. Davis, 41 Ark. 270 (1883), we stated:

A person entitled to the proceeds of lands directed to be sold has no estate in the land, whatever; only an equity to be enforced against the trustee, or other person wrongfully detaining his share of the proceeds. The interest is so entirely in the nature of personal estate, that where aliens are incompetent to hold realty they may take it. There is left no such interest in the land itself as can be bound by a judgment lien or touched by an execution. *** The equitable doctrine of conversion has been fully adopted in many of the American states, and expressly repudiated in none. Arkansas is amongst those in which it can no longer be questioned. *** There being no interest in the land, considered as land, it logically follows, that a creditor of one entitled to the proceeds, mistakes his remedy by levying upon the land itself. Everything substantive eludes his grasp. His proper course is to pursue the proceeds, and to take steps to have them realized; which is within the power of a court of equity. . . .

This case has not been overrruled, and we find no statute which changes the results of this decision.

Therefore, we agree with the trial court that William Bruce terminated the trust on April 1, 1975, when he sold the property to the Gregorys. Thereafter, the funds were held in trust for the beneficiaries as stated in the formula earlier in this opinion. Even though the money was not delivered at that time, each of the parties, the seller and the buyer, held their respective property in trust for the other until such time as the transaction was completed.

Affirmed.


text:
    CITY OF LITTLE ROCK v. Robert TROUTT
    CR 80-207
    607 S.W. 2d 668
    Supreme Court of Arkansas
    Opinion delivered November 24, 1980

      R. Jack Magruder, III, City Atty., by: Carolyn B. Witherspoon, Asst. City Atty. for appellant.
    No brief for appellee.
   John I. Purtle, Justice.

Appellee was charged and convicted in the Little Rock Municipal Court for failure to pay his privilege license tax under Little Rock Ordinance 21-13. His defense was that he had paid for a mixed drink permit pursuant to Little Rock Ordinance 4-43, and this permit should take the place of the privilege license which he refused to pay. On appeal the circuit court found appellee not guilty because the city had not proved beyond a reasonable doubt that appellee should have paid the privilege license fee.

The City of Little Rock brings the appeal and alleges that (1) the trial court erred in finding the city did not prove beyond a reasonable doubt that appellee was guilty; and (2) the trial court erred in finding appellee was not required to obtain a privilege license since he had paid for a mixed drink permit. We agree with the appellant’s contentions and reverse the case.

Appellee does not dispute that he received notice to pay the taxes under the privilege license provisions of the Little Rock Code of Ordinances. He simply stated he did not think it was right to pay it when he had already paid a license to sell mixed drinks. It was appellee’s contention that the payment of the mixed drink permit authorized him to operate his private club and sell mixed drinks. Appellee has operated a private club for many years in Pulaski County, Arkansas, and up until January 2, 1978, he sold food and beverages and provided other entertainment. Since January of 1978, he has sold only non-alcoholic drinks and mixed drinks consisting of alcoholic beverages and the ingredients used in their preparation. He does not serve food. The appellee’s primary defense for not paying the privilege license tax was stated as follows:

I willfully did not pay the privilege license because I didn’t think it was right.

We will discuss both of appellant’s points for reversal at the same time. It must first be noted that appellee did not challenge the constitutionality of either ordinance nor did he deny receiving notice that the taxes were due. Appellee admits that prior to 1978 he was paying both taxes; but, when he discovered they were being billed on the same form, he decided he was being taxed twice for the same thing. Appellee did not file a brief, and the only clue we have to his contention is that set out in the facts above.

Since there is not attack on the validity of either ordinance, we consider the ordinances to be valid. Little Rock Code of Ordinances Section 21-13 provides, among other things, that any person carrying on a business shall pay a license fee. Little Rock Code of Ordinances Section 4-43 requires anyone selling mixed drinks to obtain a mixed drink permit.

Without deciding whether it is permissible for a city to impose double taxes upon its residents, we find the trial court was in error because the privilege tax was for the purpose of carrying on a business. The business was that of operating a private club. The private club also wanted to sell mixed drinks, which is no doubt the primary purpose of its existence, and before it could do so the city required a mixed drink license. These are two separate and distinct subjects of taxation. Obviously, a private club could be operated without selling mixed drinks. Certainly they would not need a mixed drink permit to have floor shows, allow dancing, or listen to music. Therefore, we have no hesitancy in saying the taxation was for two separate and distinct purposes. The fact that the two ordinances are both revenue measures has no bearing on their validity under the facts of this case.

The trial court was in error in finding the appellant had not proved its case beyond a reasonable doubt. There was no evidence whatsoever other than the appellee refused to pay the tax after notice. There was no dispute at all on the facts. This is simply a matter of the interpretation of these two ordinances. As previously stated, we interpret them to cover two separate and distinct objectives and they are therefore a valid exercise of the authority of the city.

Reversed.


author:
John F. Stroud, Justice.
      John I. Purtle, Justice,

text:
    Danny Lee ASHBY v. STATE of Arkansas
    CR 80-146
    607 S.W. 2d 675
    Supreme Court of Arkansas
    Opinion delivered November 24, 1980

      E. Alvin Schay, State Appellate Defender, by: Deborah R. Sailings, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Doivden, Asst. Atty. Gen., for appellee.
   John F. Stroud, Justice.

Appellant was charged with the aggravated robbery of a Conway supermarket on April 24, 1979- After three employees of the store testified that he was definitely the man who had committed the robbery and a fingerprint expert identified a thumb print on the cash register as appellant’s, he was convicted by a jury on November 15, 1979, and sentenced to imprisonment for 50 years. The jury was polled at the request of appellant and all of the members indicated that this was their verdict, although one juror, Mrs. Nutter, seemed hesitant in her response. She was then allowed to explain her hesitancy, stating:

I really would like to answer. We felt like this sentence — he would not be kept there the full time if he made improvements in his character, and we felt like it was up to him.

Appellant subsequently filed a motion to set aside the verdict, alleging that it was based on prejudice and passion and that at least one juror improperly considered the possibility of parole in determining his sentence. From the denial of this motion by the trial court, appellant brings this appeal. We think the trial court did not abuse its discretion in rejecting the motion and we affirm the conviction.

The sole question on this appeal is whether juror Nutter’s statement concerning a possible early release of appellant reflected an impermissible consideration of Arkansas’ parole system by the jury in the determination of his sentence. Appellant contends that our holding in Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86 (1971), requires a finding of reversible error on this point. In Andreivs, supra, this court held that information concerning the parole system was not to be given the jury, and if asked about it the trial court should instruct the jury that the matter is one with which they need not be concerned. In the present case there is no allegation that the trial court, or any other officer of the court, imparted any information to the jury concerning parole eligibility. We do not think Andrews, supra, is applicable here. If the jury, or any of them, did take the possibility of parole into consideration in their determination of appellant’s sentence, any information they had concerning parole was independent knowledge which they had prior to trial. Arkansas Model Instructions Criminal, 103, given to the jury by the trial court in the present case without objection, provides:

In considering the evidence in this case you are not required to set aside your common knowledge, but you have a right to consider all the evidence in the light of your own observations and experiences in the affairs of life.

We still adhere to our statement in Woods v. State, 260 Ark. 882, 884, 545 S.W. 2d 912 (1977), wherein this court noted:

... it is hardly possible that even one person, much less twelve, old enough to serve on a jury would not know that Arkansas has a parole system.

A jury can be polled pursuant to Ark. Stat. Ann. § 43-2160 (Repl. 1977), but the inquiry should be limited to determining that the verdict is that of each juror and “Whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” Ark. Stat. Ann. § 28-1001, Uniform Rules of Evidence, Rule 606(b). It would be highly unrealistic for this court to think that jurors do not consider the possibility of parole in arriving at a sentence in a criminal case. The outward expression of that by a juror is not grounds for a new trial.

Accordingly, we cannot say the trial court abused its discretion in refusing to set aside the verdict of the jury.

Affirmed.

Purtle and Mays, JJ., dissent.

John I. Purtle, Justice,

dissenting. I dissent for the reason that the jury was allowed to consider or speculate on how the parole system works in Arkansas and how it would affect appellant’s sentence. As the majority recognizes, we have previously reversed convictions when a court or other officials commented on the parole eligibility of an accused. Since the court is not allowed to explain the system to the jury, Bush v. State, 261 Ark. 577, 550 S.W. 2d 175 (1977), certainly the jury should not be allowed to speculate on it by trying to figure out how the system would work as it relates to the sentence they impose. There is absolutely nothing in the record to indicate that the jury even possessed any accurate knowledge of how the system really works. This information may have been completely erroneous.

As far as I am concerned, it was proper to question the jury on this subject pursuant to Ark. Stat. Ann. § 28-1001 (Repl. 1979), Uniform Rules of Evidence, Rule 606(b), relating to extraneous prejudicial information which may have been considered in deliberation. Not only does the majority hold that it was not prejudicial error for the court to fail to set aside this verdict, which was obviously based at least in part on matters not before the jury, it encourages future juries to speculate on parole eligibility when assessing a sentence. If we are going to reverse our previous holdings and allow such matters to be considered by the jury, we should not only allow but require the court to give the jury instructions reflecting the manner in which the parole system is actually supposed to work. In my opinion, this would play havoc with the system as it now operates.

We have previously stated that if the jury even seeks information about the parole system the court should explain to them that it was a matter of no concern to them. Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86 (1971). Therefore, I would reverse and remand.

I am authorized to state that Mays, J., joins me in this dissent.


author: Richard L. Mays, Justice.

text:
    D. W. KREUTZER, M.D. v. Wayne CLARK et al
    80-158
    607 S.W. 2d 670
    Supreme Court of Arkansas
    Opinion delivered November 24, 1980

      Gary Isbell, for appellant.

      Logan & Gresham, by: Roger V. Logan, Jr., for appellees.
   Richard L. Mays, Justice.

After appellant was notified that his contract of employment with Boone County Hospital would be terminated, he sought a temporary restraining order in chancery court. The chancery court refused to grant the restraining order because it found that appellant would suffer no irreparable harm from the proposed discharge. We affirm.

On April 18, 1980, appellant, Dr. D. W. Kreutzer, the pathologist and director of the laboratory of the Boone County Hospital since 1971, was informed by letter that the Board of Governors of the Hospital had voted to terminate his contract, effective 60 days from the date of notice. Appellant’s contract provided a salary of $100,000 and authorized termination of the contract by either party upon 60 days written notice to the other. Appellant complained to the Board that the decision to discharge him had been made in executive session without notice to him in violation of the Arkansas County Government Code, Ark. Stat. Ann. § 17-3101 et seq (Repl. 1980), and the Freedom of Information Act, Ark. Stat. Ann. § 12-2801 et seq (Repl. 1979). He requested the Board to hold a public hearing on the reasons for his discharge and buttressed his request by submitting supporting petitions signed by various community members. Although a letter was sent to appellant on May 8, 1980 generally outlining the reasons for the Board’s decision, the Board refused to hold a public hearing. On June 19, 1980, one day prior to the effective date of his discharge, appellant filed a complaint in chancery court alleging illegal termination of his contract and seeking to temporarily enjoin the Board from discharging him until the merits of his claim could be determined, he alleged that unless the Board was temporarily enjoined, his professional reputation, future employment opportunities and ability to care for his patients would be irreparably harmed. After a brief hearing, the chancellor denied the interlocutory relief and this appeal followed.

The issuance of a temporary restraining order is a matter addressed to the sound discretion of the trial court, and its decision will not be reversed on appeal unless it is clearly erroneous. Spitzer v. Barnhill, 237 Ark. 525, 374 S.W. 2d 811 (1964), Ark. R. Civ. P. 52. Essential to the issuance of a temporary restraining order is a finding that a failure to isue it will result in irreparable harm to the applicant. Ark. R. Civ. P. 65. Harm is normally only considered irreparable when it cannot be adequately compensated by money damages or redressed in a court of law. State Police Commission v. Davidson, 252 Ark. 137, 477 S.W. 2d 852 (1972).

Appellant contends that the chancellor's finding that he had not made a sufficient showing of irreparable harm to justify issuance of a temporary restraining order is clearly erroneous. He alleges harm from the loss of his S 100,000 a year salary and from the possibility that he might be forced to move to another community to find suitable employment. He argues that the chances of obtaining acceptable employment, even if he relocates, will be significantly diminished because of alleged harm to his professional reputation. He then somehow concludes that these circumstances mandate a finding of irreparable harm and the issuance of a restraining order temporarily enjoining his discharge. We could not more forcefully disagree. These arguments are available anytime an employment contract is terminated. The chancellor need not indulge in speculation about appellant’s future employment opportunities in deciding the legal question here. No ground is lost by a denial of the interlocutory order which cannot be recouped in a court of law by a favorable judgment and an award of money damages.

Affirmed.


text:
    David J. BURT v. STATE of Arkansas
    CR 80-209
    608 S.W. 2d 15
    Supreme Court of Arkansas
    Opinion delivered December 1, 1980

      Hixson & Cleveland, by: Coy J. Rush, Jr., for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

Appellant David J. Burt was charged with five counts of theft by deception [Ark. Stat. Ann. § 41-2203 (Supp. 1979)]. On September 6, 1979, he entered a negotiated plea of guilty and was placed on probation for ten years. One of the conditions of his probation was that he make full restitution of $16,200 to Don Moak, the victim of the offenses with which he was charged. On January 7, 1980, the state filed a petition for revocation of the probation on the ground that appellant had failed to make full restitution by failure to pay $4,000, with interest at ten percent to Moak, on January 1, 1980, the date this final installment became due. On February 1, 1980, after a hearing, the probation was revoked and the sentence, after modification to imprisonment for five years, with three of them suspended upon condition of payment of the balance required for full restitution to Moak, was pronounced.

Appellant asserts that the trial court erred in revoking the probation because the court failed to follow statutory requirements in the initial sentencing procedures. We agree and reverse the judgment.

At the time of the sentencing, Burt, addressing the trial judge, stated that he did not know anything about the courts, that the payment of restitution depended upon his ability to continue the business he was in, but that, due to his inability to be “bonded,” he was compelled to give up his business and line of work and was unable to obtain a job, because he was 100 percent disabled. The trial judge simply informed Burt that there would be no difference for ten years, because appellant stood convicted of the crime anyway, but at the end of ten years, his record might be cleansed, “so to speak.”

Burt testified that, after he left the court, the probation officer advised him that he would be unable to leave the state without contacting the probation officer and that he would not be permitted to carry a gun or to frequent places that dispensed alcohol. Burt said that these conditions caused the bonding company, by whom he had been employed, to decide that he was of no further use to them because a “bond-jumper” could be in another state by the time Burt could get ahold of his probation officer. Burt testified, without any contradiction, that he never received any written statement of the conditions of his probation. On cross-examination, Burt said that he understood all of the conditions except one, i.e., that the last payment was due on January 1, 1980, rather than January 1, 1981. The record does not disclose that the trial judge ever stated the schedule for restitution to appellant at the time the order of probation was pronounced. The plea questionnaire executed by appellant prior to the entry of his plea states no time within which restitution was to be made. At the time appellant entered his plea he said that he understood that he was to “pay the gentleman his money back.” The prosecuting attorney, in making his recommendation, did state that the final payment was to be made on January 1, 1980.

Ark. Stat. Ann. § 41-1203 (4) (Repl. 1977) provides that when a trial court suspends the imposition of sentence on a defendant or places him on probation, “the defendant shall be given a written statement explicitly setting forth the conditions under which he is being released.” The state concedes that appellant received no such written statement. In Ross v. State, 268 Ark. 189, 594 S.W. 2d 852, we held that a circuit court has no power to revoke probation of a defendant when a written statement explicitly setting forth the conditions of the probation has not been given to the defendant as required by Ark. Stat. Ann. § 41-1203.

The state recognizes the holding in Ross, on March 3, 1980, but argues that it should not be retroactive, without explaining why. We simply applied the clear language of the statute. As early as 1963, we pointed out the lack of a statutory requirement that the conditions of a probation or suspension be in writing and the desirability of a trial court’s enumeration of conditions. See Gerard v. State, 235 Ark. 1015, 363 S.W. 2d 916. The case before us is certainly illustrative of the reason for the mandatory language of the statute which became effective 13 years after Gerard was decided. One could hardly be heard to say that he misunderstood the conditions of his probation if the statute is followed.

The drafters stated that the statute insured that a defendant be aware of the conditions to which he must conform his future conduct and took our decision in Gerard as an endorsement of the procedural requirement that a defendant be furnished with a written list of conditions. See Commentary, § 41-1203. The mandatory nature of the requirement is stated in the statute and not established by Ross, so the question of retroactivity simply does not exist.

The judgment is reversed.


author: George Rose, Smith, Justice.

text:
    Rose E. STEVENS v. Larry E. STEVENS
    80-135
    608 S.W. 2d 17
    Supreme Court of Arkansas
    Opinion delivered December 1, 1980

      Jim D. Spears, for appellant.

      Jerry D. Pruitt, for appellee
   George Rose, Smith, Justice.

In this divorce suit the chancellor granted the divorce to the appellant, Rose E. Stevens, on the ground of adultery, awarded her the custody of the couple’s ten-year-old daughter, directed Stevens to pay child support of $300 a month, denied alimony, divided the personal property, and ordered the sale of the parties’ three principal pieces of property (two houses and an autombile body shop business), with the proceeds of the sale to be divided equally after the payment of encumbrances. For reversal the appellant argues primarily that she should have been given alimony and possession of the larger house and that she should have received her half interest in the body shop by appraisal rather than by sale. Our jurisdiction rests upon a companion appeal which was consolidated with this one and decided by a per curiam order.

The couple were married in 1967 and separated in September, 1977. Mrs. Stevens then lived in California with her daughter for about two years, during which the husband’s adultery, which was conceded, occurred. After Mrs. Stevens’s return to Arkansas this suit was filed by the husband in April, 1979. After the first of three hearings, in Sepember, the court ordered temporary monthly allowances of $300 alimony and $400 child support, to be paid from $7,-600 which Mrs. Stevens had remaining from $18,000 she had taken from the family business and used for living expenses. The final decree, with an amendment, was entered in January after two additional hearings.

We consider first the matter of alimony, which has a bearing upon the other issues. The decree was rendered long after the passage of Act 705 of 1979, which was designed to equalize the property rights of husbands and wives in divorce proceedings. The appellant’s right to alimony is therefore governed by much the same principles that prevailed before the decisions in Orr v. Orr, 99 S. Ct. 1102 (1979), and Sweeney v. Sweeney, 267 Ark. 595, 593 S.W. 2d 21 (1980).

During the later years of the marriage Stevens established and built up the body shop business, which, although a family partnership, was essentially Stevens’s operation. The shop was used for the repair of autombiles owned by customers and also for the rebuilding and sale of wrecked vehicles that Stevens bought from insurance companies. The business apparently prospered, grossing $151,000 in 1978, the last year for which figures are shown. It is evident that Stevens’s own income exceeded that indicated by his testimony and by the income tax returns that were introduced. He testified, for example, that he sent his wife from $800 to $1,200 a month during a substantial part of their separation, that he accumulated $18,000 in a safety deposit box over possibly 18 to 24 months, that he maintained his own apartment, and that he took a trip to Hawaii. Such expenditures could hardly have come from the income disclosed by the proof.

By contrast, Mrs. Stevens does not have a dependable source of income. What the net proceeds of the sale of the houses and the business will be is impossible to estimate. The estimates of value vary greatly, and the intangible worth attributable to Stevens’s knowledge and skill in the business cannot be measured. Mrs. Stevens, now 34, worked at various jobs before the birth of her daughter and for some two years later on in some capacity at the shop. It does not appear that she has any particular employable skill. She has a college degree in psychology and hopes to be able to obtain work in that field upon getting a master’s degree after two years or more of further study. In the circumstances we hold that a monthly alimony of $400 should have been awarded to her. In this respect the decree is reversed and the cause remanded to vest continuing jurisdiction in the chancery court.

We cannot say, especially in view of .the allowance of alimony, that the chancellor was clearly wrong in refusing to award Mrs. Stevens possession of the house. It is apparently a larger house than she and her daughter will need and costly to maintain.

The original decree, announced in December, provided that the shop would continue to be jointly owned, with Stevens in control of it and with the profits being equally divided after an allowance of up to $400 a week to Stevens for his services. That arrangement would probably not be satisfactory; so on Stevens’s motion the chancellor amended the decree to order a sale of the business. The appellant now asks that instead the business be independently appraised and the appellee be required to pay her half its value. That possibility was not developed by the proof in the trial court, and we are not willing to prolong the proceedings, which have already encompassed three protracted hearings before the chancellor, for the exploration of a suggestion made first on appeal.

Two minor points are argued, relating to the chancellor’s decision not to allow the introduction of certain testimony offered by Mrs. Stevens at the third hearing, at which she was representing herself without the assistance of a lawyer. We think it sufficient to say that no complete proffer of proof was made and that our decision on appeal would not be different had the chancellor allowed the introduction of the scant proof actually proffered.

Affirmed in part, reversed in part, and remanded.


author: Frank Holt, Justice.

text:
    Gerald D. BARNES v. PEARSON TERMITE AND PEST CONTROL, INC. and Elmer T. PEARSON, Individually
    80-164
    608 S.W. 2d 19
    Supreme Court of Arkansas
    Opinion delivered December 1, 1980

      Henry Brans cum, Jr., for appellant.

      Joe Cambiano, for appellee.
   Frank Holt, Justice.

These parties were previously before this court in Barnes v. Pearson Termite and Pest Control, Inc., 266 Ark. 635, 587 S.W. 2d 823 (1979). The facts leading up to this appeal are set out fully in that case. Briefly, the parties had been in business together; when Barnes became ill, Pearson terminated the corporation and started his own business. Upon suit by Barnes for his share of the profits, the chancellor found the corporation was dissolved as of November 1, 1976, entering his order on June 1, 1977, that each receive 1/2" of the accounts of customers of the corporation. We affirmed.

During the pendency of that appeal, appellant filed a petition which forms the basis of the present appeal, alleging he had learned since June 1, 1977, that appellee had failed to properly divide some 83 business accounts. He requested the court to order an accounting and division of the funds received by appellee on these accounts since June 1, 1977. Appellee answered, denying the allegations, asserting, inter alia, that he had not failed to disclose the accounts and he had properly received them in the division of their assets. The chancellor appointed a master to examine the disputed accounts. Thereafter, following our decision, the chancellor ordered the accounting by the master to continue in order to determine if the accounts were acquired prior to or after November 1, 1976. The appellant then amended his petition to include a request for a bill of review of the decree, alleging the evidence as to the accounts was not known by him nor discoverable at the time of the first trial. The chancellor had a hearing on appellee’s motion to dismiss. No testimony was taken, both attorneys merely arguing the cause to the court. At that hearing the chancellor had before him some 83 accounts introduced by the appellee, who observes that the chancellor, after looking at them, apparently decided no further testimony was necessary. These exhibits are not abstracted. It appears the report of the master was not considered. The chancellor indicated the basis for his dismissal of appellant’s petition was our decision which recognized the chancellor’s determination that the corporation terminated on November 1 was final. However, the chancellor made no finding on the record presented that the accounts arose prior or subsequent to that date. He merely stated the court was ruling the assets or accounts receivable, which were in existence as of November 1, 1976, would be subject of an equitable division between the parties; any accounts arising thereafter would be the individual accounts of the parties.

Appellant contends the chancellor erred in failing to receive the report from the master; in rendering a decision, contrary to his apparent finding that the dates of the accounts were a matter to be determined; in dismissing the petition without any proof on the matter; and in holding this court’s decision precluded appellant from receiving the requested relief.

In the first appeal, we upheld, inter alia, the chancellor’s determination that the corporation was terminated on November 1, 1976. Therefore, unless the accounts contested here arose prior to that date and were not discoverable by appellant, his petition was properly dismissed. However, we cannot determine from the record if that was, indeed, the basis upon which the chancellor dismissed appellant’s petition. Appellant’s argument, as we understand it, is that he is entitled to a hearing for the purpose of enforcing the chancellor’s decree; i.e., to an equal division of the assets, not discoverable by him, which existed on November 1, 1976. Appellee’s argument is that all assets on that date were properly and equally divided.

We remand the cause with directions to determine this disputed factual issue.

Reversed and remanded.