author: Jack Holt, Jr., Chief Justice. Steele Hays, Justice,

text:
    W. Lee MOORE and Shirley Barnett, as Surviving Heirs of Winnie Ruth Thomas v. MISSOURI PACIFIC RAILROAD and John C. Peterson, Jr.
    88-320
    773 S.W.2d 78
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989

      Gresham A. Phillips, for appellant.

      Herschel H. Friday, Frederick S. Ursery, and James C. Baber, Jr., by: Frederick S. Ursery, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal involves an issue of first impression in Arkansas: Whether a general release discharging “any and all persons, associations and corporations, whether herein named or referred to or not” is effective to release potential joint tortfeasors not named or specifically identified in the release. The trial court granted summary judgment on the basis that a general release is effective to release such parties. It erred in doing so. Accordingly, we reverse and remand.

On September 13, 1984, an automobile-train collision occurred in Benton, Arkansas. The driver of the car, Mary A. Richardson, was killed instantly. A passenger in the car, Winnie Ruth Thomas, was severely injured. On or about September 25, 1984, an insurance adjustor for Richardson’s liability carrier, Sentry Insurance, approached appellant W. Lee Moore, Thomas’ son, at the hospital where Winnie Thomas was a patient and told him that Mary Richardson had $25,000.00 in insurance and that “it was the most they could get so they might as well go ahead and settle.” On October 2, 1984, Thomas executed a power of attorney to Lee Moore, and on October 24, 1984, Moore, on behalf of Thomas and without benefit of counsel, released Mary Richardson for the sum of $25,000.00. The released contained the following language:

That Winnie Ruth Thomas of 513 River St., Benton, Ark., for and in consideration of the sum of Twenty Five Thousand Dollars, ($25,000.00), the receipt and sufficiency of which is hereby acknowledged, does hereby remise, release and forever discharge Mary A. Richardson (handwritten), 1200 W. Pine #33, Benton, Ark., his successors and assigns, and/or his, her, their heirs, executors and administrators, and also any and all other persons, associations and corporations, whether herein named or referred to or not, and-who, together with the above named, may be jointly or severally liable to the Undersigned, of and from any and all, and all manner of, actions and causes of action, rights, suits, covenants, contracts, agreements, judgments, claims and demands whatsoever in law or equity, including claims and contribution, arising from and by reason of any and all Known and Unknown, Foreseen and Unforeseen bodily and personal injuries or death, damage to property, and the consequences thereof, which heretofore have been, and which hereafter may be sustained by the Undersigned or by any and all other persons, associations and corporations, whether herein named or referred to or not, and especially from all liability arising out of an occurrence that happened on or about this the 13 day of September, 1984, at or near State Highway 183 and State Highway #35 in Benton, Ark. [Emphasis added.]

Winnie Thomas died on or about May 15, 1985. Thereafter, appellants Lee Moore and Shirley Barnett, as surviving heirs of Winnie Thomas, filed suit against appellees Missouri Pacific Railroad and John C. Peterson, Jr., the engineer of the train, claiming that Thomas’ injuries and death were caused by (1) the negligence of Missouri Pacific in failing to maintain the railroad crossing and (2) the negligence of Peterson, as agent of Missouri Pacific, in failing to keep a proper lookout, in failing to give a proper warning, in operating a locomotive at an excessive rate of speed, and in failing to keep his train under proper control.

On November 24, 1986, Missouri Pacific and Peterson filed a motion for summary judgment on the ground that the release executed by Thomas and Moore on behalf of Mary Richardson inured to the benefit of Missouri Pacific and Peterson. In response, Moore and Barnett filed an affidavit signed by Moore stating that it was not his intention to release any party from liability other than Mary Richardson. In addition, they filed an affidavit signed by Jerri Delamar, a reading teacher, stating that it was her opinion that Lee Moore is “capable of reading on no higher than a fourth grade level.” The trial court granted the motion. From this order, Moore and Barnett appeal.

For reversal, they contend that the trial court erred in granting summary judgment on the basis that the general release executed by Moore on behalf of Mary Richardson and “any and all persons, associations and corporations, whether herein named or referred to or not” was effective to discharge Missouri Pacific and Peterson. For the reasons stated below, we agree.

The determinative issue before us is as follows: Whether a release discharging “any and all persons, associations and corporations, whether herein named or referred to or not” is effective to release potential joint tortfeasors not named or specifically identified in the release.

At common law a release of one tortfeasor automatically released all other tortfeasors jointly liable for the wrong. Magnolia Petroleum Co. v. McFall, 178 Ark. 596, 12 S.W.2d 15 (1928). See also Jones v. Chism, 73 Ark. 14, 83 S.W. 315 (1904). The rationale for this doctrine was that where there has been a release of one tortfeasor, the cause of action is satisfied and no longer exists. Magnolia, supra.

In 1941 Arkansas changed this common law rule with the adoption of section four of the Uniform Contribution Among Joint Tortfeasors Act, currently codified as Ark. Code Ann. § 16-61-204 (1987). This provision provides as follows:

A release by the injured person of one (1) joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid. [Emphasis added.]

Section four of the Uniform Act is now law in twenty states besides Arkansas. See Uniform Contribution Among Joint Tortfeasors Act, 12 U.L.A. 71 (Supp. 1989); Note, Contracts, Parol Evidence in Release Forms: The Problem of “Boilerplate” Language, 6 Miss. C.L. Rev. 189 (1986). At least twelve jurisdictions have enacted statutes with language substantially similar to that in Ark. Code Ann. § 16-61-204. Two states have enacted statutes based on the Uniform Act, but these statutes do not have equivalents of the Act’s section four pertaining to releases.* *

Courts interpreting statutes virtually identical to Ark. Code Ann. § 16-61-204 have taken three separate approaches in determining whether a release which in essence discharges the world at large is effective to release joint tortfeasors not named or specifically identified in the release.

A number of these courts have taken the position that a general release discharging all other parties who might be liable for damages in addition to a named tortfeasor is sufficient to release a joint tortfeasor not named or specifically identified in the release. Morison v. General Motors Corp., 428 F.2d 952 (5th Cir. 1970) (applying Ark. Stat. Ann. § 34-1004 (Repl. 1962), currently Ark. Code Ann. § 16-61-204 (1987)); Douglas v. United States Tobacco Co., 670 F.2d 791 (8th Cir. 1982) (applying Ark. Stat. Ann. § 34-1004 (Repl. 1962)); Auer v. Kawasaki Motors Corp., USA, 830 F.2d 535 (4th Cir. 1987) (applying Md. Ann. Code art. 50, § 19 (Repl. 1986)); Doganieri v. United States, 520 F. Supp. 1093 (N.D. W. Va. 1981) (applying W. Va. Code Ann. § 55-7-12 (Repl. 1981)); Hasselrode v. Gnagey, 404 Pa. 549, 172 A.2d 764 (1961); Johnson v. City of Las Cruces, 86 N.M. 196, 521 P.2d 1037 (Ct. App. 1974). See also Mussett v. Baker Material Handling Corp., 844 F.2d 760 (10th Cir. 1988) (applying Okla. Stat. Ann. tit. 12, § 832 (1988)); State Farm Mut. Auto Ins. Co. v. Reynolds, 676 F. Supp. 106 (W.D. Va. 1987) (applying Va. Code Ann. § 8.01-35.1(A)(1) (Supp. 1987)); Liberty v. J.A. Tobin Construction Co., Inc., 512 S.W.2d 886 (Mo. App. 1974). This position has been called the “flat bar” rule. See McInnis v. Harley-Davidson Motor Co., Inc., 625 F. Supp. 943 (D.R.I. 1986).

Other courts have adopted the “intent” rule. Pursuant to this rule, a boilerplate discharge of the world at large does not have the effect of automatically releasing unnamed tortfeasors; instead, the release will serve that purpose if and to the extent that the parties so intended. McInnis, supra (applying R.I. Gen. Laws § 10-6-7 (1985)); Hurt v. Leatherby Ins. Co., 380 So.2d 432 (Fla. 1980); Flanagan v. State of Florida Dept. of Transportation, 532 So. 2d 714 (Fla. Dist. Ct. App. 1988). See also Manos v. Trans World Airlines, Inc., 295 F. Supp. 1166 (N.D. Ill. 1968) (applying Cal. Civ. Proc. Code § 877(a) (West 1957) and Arizona law )); Sellon v. General Motors Corp., 521 F. Supp. 978 (D. Del. 1981) (applying Del. Code Ann. tit. 10, § 6304 (1974)); Hower v. Whitmak Associates, 371 Pa. Super. Ct. 443, 538 A.2d 524 (1988); Blanchfield v. Com. Dept. of Trans., 100 Pa. Commw. 62, 513 A.2d 1156 (1986); Evans v. Tillet Bros. Const. Co., Inc., 545 S.W.2d 8 (Tenn. 1976). To glean the intent of the parties, these courts look beyond the four corners of the releasing instrument.

The remaining courts have taken the “specific identity” path. These courts conclude that the release of one tortfeasor does not discharge other tortfeasors unless the latter are named in the release or are otherwise specifically identifiable from the face of the instrument. Beck v. Cianchetti, 1 Ohio St. 3d 231, 439 N.E.2d 417 (1982); Alsup v. Firestone Tire & Rubber Co., 101 Ill. 2d 196, 461 N.E.2d 361 (1984); Young v. State, 455 P.2d 889 (Alaska 1969); Alaska Airline Inc. v. Sweat, 568 P.2d 916 (Alaska 1977); Bjork v. Chrysler Corp., 702 P.2d 146 (Wyo. 1985); Aid Ins. Co. v. Davis County, 426 N.W.2d 631 (Iowa 1988); Spector v. K-Mart Corp., 99 A.D.2d 605, 471 N.Y.S.2d 711 (1984); Sage v. Hale, 75 Misc. 256, 347 N.Y.S.2d 416 (Sup. Ct. 1973). All courts taking the “specific identity” position agree that naming a releasee meets the requirement. Short of naming the party to be released, the releasee must be referred to in such a manner that his identification is made manifest. See Pakulski v. Garber, 6 Ohio St. 3d 252, 452 N.E.2d 1300 (1983).

In examining the various cases supporting the three approaches, we find Beck, supra, and Alsup, supra, to be persuasive authority. In Beck, the plaintiff, a passenger on a motorcycle, was injured when the motorcycle was hit by an automobile. After the accident, she executed a release discharging a named tortfeasor and “all other persons, firms, associations, or partnerships” from any and all claims resulting from the accident. Thereafter, she brought suit against a party jointly liable for the occurrence but who was not a party to the release. In holding that the second tortfeasor was not released, the Supreme Court of Ohio stated as follows:

Apparently the General Assembly intended to change the common law; otherwise, there would have been no reason to enact the statute. The legislative mandate in R.C. 2307.32 abrogates the common law rule which provided that a release given to one tortfeasor was a release of all others and often entrapped the average person into reasonably assuming that settling a claim with one person would have no effect upon rights against others with whom he did not deal. (Citation omitted.) Instead, R.C. 2307.32 provides that a release to one tortfeasor does not discharge any other tortfeasor “unless its terms otherwise provide.” The thrust of this section is to retain the liability of tortfeasors and, thus, the phrase “unless the terms otherwise provide” should be narrowly construed and require a degree of specificity. Allowing a discharge which does not name or identify a tortfeasor perpetrates the common law rule and is contrary to statute.
The statutory phrase “unless its terms provide otherwise” requires a release to expressly designate by name or to otherwise specifically describe or identify any tortfeasor to be discharged. For example, a release could meet the statutory requirement by naming an individual or specifically identifying a tortfeasor such as stating the driver of the car which struck the motorcycle.

In Alsup, the plaintiffs were injured when their car was struck by another vehicle. They filed suit against the driver of the second vehicle. The plaintiffs settled with the driver and executed a release discharging him and “all persons, firms, and corporations, both known and unknown, of and from any and all claims.” Thereafter, they filed a products liability suit against the manufacturer of the tires on the second vehicle.

The question on appeal was whether the release given by the plaintiffs satisfied the “unless its terms so provide” language of section 2(c) of the Illinois Contribution Among Joint Tortfeasors Act, Ill. Rev. Stat. ch. 70, § 302(c) (Smith-Hurd 1979). The Supreme Court of Illinois stated as follows:

There are convincing reasons, however, against holding that a broadly worded general release, as we have here, will satisfy the conditional language in section 2(c). A purpose of the uniform act was to abrogate the common law rule that the release of one joint tortfeasor releases all joint tortfeasors. (Citation omitted.) The common law rule deservedly has been strongly criticized. It has been described as “harsh,” “without any rational basis,” and “very unfair.” (Citation omitted.) If literal effect were given to every use of a general release form and “all other persons, firms, and corporations,” as it appears here, were to be discharged, an important purpose of the Act would be thwarted by the unintended release of persons who were strangers to the release contract. The common law rule released joint tortfeasors by operation of law. By the general release there would be, on the ground of contract, an unwitting discharge of joint tortfeasors.
The legislature intended to abolish the common law rule that produced an involuntary discharge of joint tortfeasors. Section 2(c) states that a release will not operate to “discharge any of the other tortfeasors from liability for the injury * * *.” We do not consider that the modifying language that follows, i.e., “unless its terms so provide,” should be interpreted to allow the legislative intendment of nullifying the common law rule to be frustrated through the use of what are often general release forms. The legislature surely was aware of the criticism that the common law rule often operated to violate the intentions of the persons giving releases. We consider that the legislature’s intendment was that under section 2(c) a release was not to discharge “other tortfeasors” from liability unless they were designated by name or otherwise specifically identified.

Clearly, it was the intention of the Arkansas Legislature in enacting Ark. Code Ann. § 16-61-204 to abrogate the common law rule that a release of one tortfeasor released all other tortfeasors jointly liable for the occurrence, thereby retaining the liability of joint tortfeasors. Accordingly, we must construe the language of § 16-61-204, “unless the release so provides,” in a manner that best conforms with the objective of the legislature in enacting the code provision. See Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980); Howze v. Hutchens, 213 Ark. 52, 209 S.W.2d 286 (1948); Holt v. Howard, 206 Ark. 337, 175 S.W.2d 384 (1943). In doing so, we conclude that in order to satisfy the language of § 16-61-204, a release must name or otherwise specifically identify the tortfeasors to be discharged. Broad boilerplate language is not sufficient.

As recognized by the Supreme Court of Alaska in Young, supra, requiring specific identification of joint tortfeasors as a condition precedent to their discharge will insure that the intention of the parties to a release is given effect and will significantly minimize the possibility that unwary parties will be misled as to the effect of a release. Moreover, this rule lends itself to fair play and easy application.

In the case at bar, the release did not name or otherwise specifically identify Missouri Pacific and John C. Peterson, Jr. Thus, it did not have the effect of releasing them. Since the trial court granted summary judgment on the basis that the release effectively discharged these parties, we reverse and remand.

Reversed and remanded.

Hickman, Hays, and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. At common law, the discharge of one tortfeasor automatically discharged any other joint tortfeasor completely, regardless of the terms of the release. Magnolia Petroleum Co. v. McFall, 178 Ark. 596, 12 S.W.2d 15 (1928). By enacting the Uniform Contribution Among Tortfeasors Act, now codified as Ark. Code Ann. § 16-61-204 (1987), the General Assembly departed from common law tradition. Section 16-61-204 provides in pertinent part:

A release by the injured person of one (1) joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides. . . [Our emphasis.]

Here, the release form discharged the driver of the car, Mary A. Richardson, by name, and included the following language releasing:

. . . any and all other persons, associations and corpora tions, whether herein named or referred to or not, and who, together with the above named, may be jointly and severally, liable to the Undersigned, of and from any and all, and all manner of, actions and causes of action, rights, suits, covenants, contracts, agreements, judgments, claims and demands whatsoever in law or equity. . . [Our emphasis.]

The majority holds that a release of “all persons, associations and corporations” is ineffective to release unnamed third persons not parties to the release, thereby ignoring the plain meaning of the release language. Yet, Arkansas law requires that when parties to a contract express their intention in clear and unambiguous language in a written instrument, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89 (1978).

In addition, the majority ignores the rule of statutory construction that statutes in derogation of the common law will be strictly construed. Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970); Nancy v. Gunn, 221 Ark. 10, 253 S.W.2d 559 (1952). This statute departs from the common law in that a release of joint tortfeasors is no longer automatic upon the release of one of the tortfeasors. In order to release other joint tortfeasors the release must so provide. Strictly interpreting the words of the statute suggests that the general release satisfies the “unless the release so provides” requirement.

Federal courts interpreting Ark. Code Ann. § 16-61-204 (1987) [previously Ark. Stat. Ann. § 34-1004] have held that general releases satisfy the statutory requirement. Morison v. General Motors Corporation, 428 F.2d 952 (5th Cir. 1970). Twelve years after Morison,in Douglas v. United States Tobacco Co., 670 F.2d 791 (8th Cir. 1982), the Eighth Circuit held that a general release discharging “all other persons” was sufficient under the Arkansas Uniform Contribution Among Tortfeasors Act to release joint tortfeasors who were not parties to the release. The Eighth Circuit stated that:

We believe that Morison is a carefully considered opinion based upon sound reasoning. Also, we note that it was decided in 1970, and the legislature of the State of Arkansas has had ample opportunity to act if it thought that the Morison decision was inconsistent with Arkansas law.

The majority opinion determines that it was the intent of the legislature in passing the Uniform Contribution Among Tortfeasors Act to abolish the common law rule that produced an involuntary discharge of joint tortfeasors upon the release of one tortfeasor. I agree. However, the majority extends this rationale further and determines that the language “unless the release so provides” does not adequately protect against involuntary discharge and adopts a specific identity rule. The majority requires that to satisfy the language of Ark. Code Ann. § 16-61-204, a release must name or otherwise specifically identify the tortfeasors to be discharged. Arguably, there are sound policy reasons for requiring that specific names be enumerated in the release, nevertheless, such arguments are best made to the legislature and not to this court. The intent of our legislature was to change the harsh common law rule of involuntary release. This was accomplished with the “unless the release so provides” language, and the legislature’s inaction since Morison confirms that this was their only intent. It is not for this court to construe the language of Ark. Code Ann. § 16-61-204 to best conform to the legislature’s intent, but merely to effectuate the plain intent expressed in the enactment. Therefore, I must respectfully dissent.

Hickman J., and Glaze, J., join.

       Alaska Stat. § 09.16.040 (1983); Ariz. Rev. Stat. Ann. § 12-2504 (Supp. 1988); Colo. Rev. Stat. § 13-50.5-105 (Repl.1987); Del. Code Ann. tit. 10, § 6304 (1974); Fla. Stat. Ann. § 768.31(5) (West 1986); Hawaii Rev. Stat. § 663-14 (Repl. 1985); Idaho Code § 6-805 (1979); 111. Ann. Stat. ch. 70, § 302 (Smith-Hurd 1989); Md. Ann. Code art. 50, § 19 (Repl. 1986); Mass. Ann. Laws ch. 231B, § 4 (Law. Co-op. 1986); Nev. Rev. Stat. § 17.245 (1986); N.M. Stat. Ann. § 41-3-4 (Repl. 1986); N.C. Gen. Stat. § IB-4 (1983); N.D. Cent. Code § 32-38-04 (Repl. 1976); Ohio Rev. Code Ann. § 2307.32(F) (Anderson 1981); 42 Pa. Cons. Stat. Ann. § 8326 (Purdon 1982); R.I. Gen. Laws § 10-6-7 (1985); S.C. Code Ann. § 15-38-50 (Law. Co-op. Supp. 1988);S.D. Codified Laws Ann. § 15-8-17 (1984); Tenn. Code Ann. § 29-11-105 (Repl. 1980).

       Cal. Civ. Proc. Code § 877(a) (Deering Supp. 1989); Conn. Gen. Stat. § 52-572e(b) (1985); Me. Rev. Stat. Ann. tit. 14, § 163 (1964); Mich. Comp. Laws Ann. § 27A.2925(4) (1988); Mo. Rev. Stat. § 537.060 (1988); N.H. Rev. Stat. Ann. § 507:7-b (1983); N .Y. Gen. Oblig. Law §15-108 (McKinney 1989); Okla. Stat. Ann. tit. 12, § 832 (West 1988); Utah Code Ann. § 15-4-4 (Repl. 1986); Va. Code Ann. § 8.01-35.1 (Supp. 1988); Wash. Rev. Code Ann. § 4.22.060(2) (1987); W. Va. Code § 55-7-12 (Repl. 1981); Wis. Stat. Ann. § 113.04 (West 1988).

       Miss. Code Ann. § 85-5-5 (1972); N.J. Stat. Ann. § 2A:53A-1 — 3 (1987).


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Ronald Lee RHEUARK v. STATE of Arkansas
    CR 89-40
    771 S.W.2d 777

    Supreme Court of Arkansas
    Opinion delivered June 26, 1989

      Tucker & Thrailkill, by: Patricia A. Tucker, for appellant.

      Steve Clark, Att’y Gen., by: David B. Eberhard, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

On April, 16, 1987, appellant Ronald Lee Rheuark entered pleas of guilty to forgery in the second degree and murder in the first degree. The trial court entered judgment of conviction on the charges and sentenced him to life imprisonment on the murder charge and one year on the forgery charge. Thereafter, he filed a petition for post-conviction relief pursuant to Ark. R. Crim. P. 37. The trial court, without a hearing, denied the petition, making written findings based upon the files and record. From this order, Rheuark appeals. We affirm.

For reversal, he contends that his trial counsel was ineffective in that he (1) failed to object to or move to quash the arrest warrant on the basis that the procedure utilized in obtaining the warrant was unconstitutional in that it was not issued by a judicial officer or neutral and detached magistrate upon probable cause, supported by oath or affirmation and (2) failed to raise the issue of prejudicial effect resulting from unnecessary prosecutorial delay.

A trial court need not hold an evidentiary hearing if it can conclusively determine from the record that the petitioner’s contentions are meritless. Stewart v. State, 295 Ark. 48, 746 S.W.2d 58 (1988).

A petitioner has the burden of overcoming the strong presumption that his counsel was competent. Stobaugh v. State, 298 Ark. 577, 769 S.W.2d 26 (1989); Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988). To prove ineffective assistance of counsel, a petitioner must show that (1) his attorney made so serious an error that he was not functioning as the “counsel” guaranteed by the sixth amendment and that (2) his counsel’s deficient performance was so prejudicial as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Pennington v. State, 294 Ark. 185, 741 S.W.2d 266 (1987).

The Strickland standard has been made applicable to challenges to guilty pleas based upon ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52 (1985). In order to satisfy the prejudice requirement of Strickland, a defendant who pleads guilty must demonstrate that but for counsel’s errors he would not have done so. Id.; Pettit, supra. See also Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988); Jones v. State, 288 Ark. 375, 705 S.W.2d 874 (1986). As this court stated in Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984), “A defendant whose conviction is based upon a plea of guilty normally will have difficulty proving any prejudice since his plea rests upon his admission in open court that he did the act with which he is charged.”

Rheuark has not demonstrated in his brief on appeal that he would not have pleaded guilty but for counsel’s alleged errors. Simply put, he has not met the prejudice requirement of Strickland, supra, and Hill, supra. The trial court was correct in denying his petition without a hearing. See Jones, supra.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Judy HOLBIRD and Jared Holbird v. STATE of Arkansas
    CR 89-23
    771 S.W.2d 775
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989

      R. Paul Hughes III, Chief Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Tim Humphries, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Judy Holbird and her son, Jared, were convicted of the aggravated robbery of the Pizza Inn in Fort Smith. Mrs. Holbird was also convicted of being a felon in possession of a firearm. The robbery occurred on February 28, 1989. The evidence of their guilt is overwhelming. There were seven eyewitnesses to the robbery, and all identified the Holbirds. In addition, both appellants confessed to the robbery. They make three arguments on appeal, which we find meritless.

First, it is argued that the trial court erred in refusing to extend the trial to a third day so the defense could call a witness, Ralph Turbyfill from the state crime lab. Mr. Turbyfill was a fingerprint expert who examined the fingerprints from a vehicle stolen during the robbery, and would testify none of the prints could be matched with those of the appellants. The state was willing to stipulate to the testimony.

The trial judge originally scheduled the trial for three days. In anticipation of that, the defense issued a subpoena for the expert, but for an appearance on the third day. The judge was not informed of this and no request was made of the judge beforehand to make certain that this witness would not be needed until the third day. As it turned out, the state rested its case at noon on the second day, and the court told the defense to be ready to present its witnesses that day. Efforts were made to locate Mr. Turbyfill but he was out of town and unavailable until the next day. The state agreed to stipulate to the witness’ testimony, but the defense wanted the witness’ live testimony.

The trial judge refused to grant a continuance, and we find no abuse of discretion. Furthermore, the expert’s testimony was not material because, in light of the other evidence against the appellants, it would not have affected the outcome of the trial. See U.S. v. Valenzuela-Bernal, 458 U.S. 858 (1982). There is no error in denying a continuance to obtain evidence that is not material and relevant. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).

The second argument concerns the testimony of a third defendant, Lisa Dees, the daughter of Judy Holbird. She was also charged, but the jury could not reach a verdict in her case. When Judy Holbird was arrested, there was a shootout, and she and an officer were injured. Mrs. Holbird was charged with attempted capital murder. During Lisa’s testimony, the appellants moved for a mistrial, claiming Lisa had referred to the attempted murder charge. Her first testimony, which elicited the motion, was this:

Q. Okay, did they search just the closet?
A. No, they did not.
Q. Why not?
A. Well, I don’t know why.
Q. Well, did they find . . .
A. Well, when we went in the house, I went back to show what closet I was talking about and I started to show them what was my mother’s stuff because some other friends had clothes and stuff in there too and then I just told him. . .

At this point, Mrs. Holbird’s counsel objected and asked for a mistrial, saying it appeared “we’re about three minutes away from the shooting with which my client is charged.” The judge did not grant the mistrial.

Later in her testimony, Lisa was questioned about the circumstances under which she gave her statement to the police:

Q. Did they make any threats that you would have charges brought against you at that time?
A. Shortly after that.
Q. Okay, and what did they threaten to charge you with ?
A. Detective Thomas threatened to charge me with accessory to attempted capital murder.

At this point counsel objected again and again asked for a mistrial, which was refused.

The question is whether the trial judge abused his discretion in refusing to grant a mistrial. King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989). We cannot say that he did. The first part of Lisa’s testimony only anticipated a reference to the shooting; the second part only made an indirect reference to the charge. Considering the fact that a mistrial is a drastic remedy and the reference was obtuse, we find no error in the judge’s decision.

Finally, it is argued that a severance should have been granted, because a codefendant’s statement (Lisa’s) which made reference to the other defendants, was admitted into evidence. Any reference to the Holbirds in the statement was “whited” out, but the Holbirds claim they were prejudiced nevertheless. See A.R.Cr.P. Rule 22.3(a).

The confrontation clause of the United States Constitution guarantees the right of a criminal defendant to be confronted with witnesses against him. That guarantee includes the right to cross-examine witnesses. When two or more defendants are tried jointly, the pretrial confession of one which implicates the other is not admissible unless the confessing defendant takes the stand and is subject to cross-examination. Cruz v. New York, 481 U.S. 186 (1987); Richardson v. Marsh, 481 U.S. 200 (1987). See also Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988).

In this case, Lisa Dees took the stand and was subject to cross-examination. Therefore, the appellants had no right to severance.

Affirmed.


author: John I. Purtle, Justice.

text:
    ARKANSAS GAME & FISH COMMISSION v. LINDSEY
    89-18
    771 S.W.2d 769
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989

      Howell, Price, Trice, Basham & Hope, P.A., by: Carey E. Basham and Dale Price; P. Douglas Mays, General Counsel, Arkansas Game & Fish Commission, for appellant.

      Larry E. Graddy, for appellee.
   John I. Purtle, Justice.

Upon petition by the appellee, the Faulkner County Court granted a right of private roadway across the property of the appellant. The matter was appealed to the Circuit Court of Faulkner County, which affirmed the action of the county court. The appellant raises four points for reversal: (1) that the civil action against the state is prohibited by article 5, § 20 of the Arkansas Constitution; (2) that Ark. Code Ann. § 27-66-401 (1987) is inapplicable against the state; (3) that the decision of this court in a previous appeal is res judicata; and (4) that the trial court erred in failing to allow Robert Palmer to testify as to the value of the land taken for the roadway. Finding merit in the fourth argument, the case will be reversed and remanded for the purpose of determining the amount of damages which the appellant has sustained by reason of the establishment of the roadway.

The right to use this roadway was before us in the case of Arkansas Game & Fish Commission v. Lindsey, et al., 292 Ark. 314, 730 S.W.2d 474 (1987) (Lindsey I). That case was heard on appeal from a decision of the Chancery Court of Faulkner County. The chancellor had enjoined the appellant from interfering with the right to travel a public roadway. The opinion of this court declared that a portion of the roadway was not a public road.

The dispute then moved into the County Court of Faulkner County when Thomas E. Lindsey, Alfred Peaks, C.W. Elrod, Douglas J. Mathis, James D. Denton, Donna Denton, James E. Mitchell, Billy W. Russell, Homer Rabjohn, and Ollie Rabjohn petitioned to have the county court declare a private roadway across the appellant’s property from the Saltillo Road to the Green’s Lake road. The petition stated that the property owned by the petitioners was inaccessible without a road across the Game & Fish Commission property.

The county court appointed viewers who caused the roadway to be surveyed and who presented their estimate of damages. It was the opinion of the viewers that the appellant suffered damages in the amount of $2,727.00. The county court’s order was appealed to the circuit court where the judgment was affirmed.

A more complete statement of the facts of this case may be found in Lindsey I. We briefly state that the Game & Fish Commission has held title to this property for some forty years. Over the years the site of this roadway has been utilized by various people, including the petitioners. There is no other feasible way to reach the appellee’s property than across the roadway here in question. Lindsey / resulted from the blockading by the Game & Fish Commission of this same road after it had been improved by three of the appellees, who intended to sell lots on the edge of Lake Conway. The three appellees in Lindsey I are among the appellees in the present case.

The appellant’s first argument is that the sovereign immunity of the state of Arkansas prohibits this action from being pursued against the state. Article 5, § 20 of the Constitution of the State of Arkansas provides:

The state of Arkansas shall never be made a defendant in any of her courts.

This section does not prohibit the state from waiving immunity or voluntarily entering its appearance. In Lindsey I the Commission voluntarily entered its appearance and sought affirmative relief. Having entered its appearance on this matter in the Faulkner County Chancery Court proceeding the Commission cannot at this time claim sovereign immunity. We held in Arkansas Game & Fish Commission v. Parker, 248 Ark. 526, 453 S.W.2d 30 (1970), that the Game & Fish Commission was under no obligation to appear and defend a cause of action, but upon voluntarily doing so, it became bound by the decree of judgment like any other person.

Amendment 35 to the Constitution of the state of Arkansas grants to the Game & Fish Commission rather broad authority to manage lands and to regulate the preservation and harvesting of game and fish. However, the Commission cannot use its authority to deny the constitutional rights of others. This court has previously considered the possible conflict between Amendment 3 5 and article 2, § 22 of the Constitution. In Shellnut v. Arkansas State Game & Fish Commission, 222 Ark. 25, 258 S.W.2d 570 (1953), we held that the Commission could not promulgate a regulation which in effect took property (hunting rights) from the appellant in violation of the guarantee of property rights under article 2, § 22 of the Arkansas Constitution. Shellnut instituted a proceeding against the Game & Fish Commission in the Chancery Court of Pulaski County. The opinion stated: “Even though Constitutional Amendment No. 35 gives broad powers to the Commission, nevertheless, the Commission is subservient to, and bound by, Art. 2, §22 of the Constitution. . . .’’The court stated that “ [i] t is only necessary that there be such serious interruption of the common and necessary use of the property as to interfere with the rights of the owner.”

A case closer to the one before us is that of Arkansas State Game & Fish Commission v. Eubank, 256 Ark. 930, 512 S.W.2d 540 (1974), where we stated:

First we observe that appellant is incorrect in its assertion that it cannot be the subject of a suit in our courts. A state agency may be enjoined in a suit in equity if it can be shown the pending action of the agency is ultra vires or without the authority of the agency.

The opinion further stated that an agency of the state can be enjoined when it is about to act in bad faith, arbitrarily, capriciously, and in a wantonly injurious manner.

The public had traveled across the lands here in question for many years before the Commission acquired title to the property. There is no indication that the Commission ever exercised exclusive control over this road until after the appellees had improved it in preparation for a business venture on their land. When the Commission erected a barricade, Lindsey and his business partners went to chancery court and obtained an injunction against the Commission from closing the road. This court reversed because we determined that a part of the road was not a public road. Lindsey and his associates, and the other appellees, proceeded in the county court to condemn a roadway across the Commission property. This action was the result of the Game & Fish Commission exercising dominion over the roadway. It was not revealed whether the appellees had prior knowledge that the Commission claimed the exclusive right to the use of this roadway. The action of the Game & Fish Commission in this case is much like that in the Shellnut case. The action of the Commission in cutting off travel across the road is the act which precipitated this lawsuit.

In Arkansas State Highway Commission v. Union Planters National Bank, 231 Ark. 907, 333 S.W.2d 904 (1960), we quoted from Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922):

“The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. . . . We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

In Foster d/b/a Foster’s Salvage Yard v. Arkansas State Highway Commission, 258 Ark. 176, 527 S.W.2d 601 (1975), we stated: “Regulation which unduly invades this right runs afoul of constitutional due process requirements and prohibitions against the taking of private property without just compensation.” See Arkansas State Highway Commission v. Turk’s Auto Corp., Inc., 254 Ark. 67, 491 S.W.2d 387 (1972).

The appellant’s second argument is that the circuit court did not have the authority to establish a roadway over property owned by the state and under the exclusive jurisdiction and control of the Arkansas Game & Fish Commission. This argument has been covered in the discussion of the first argument and will not be repeated.

The third argument is that the appellees are barred by the doctrine of res judicata. Only three of the ten appellees were parties to the first action. The chancery court did not have jurisdiction to lay out and establish private roads as sought in the present action. Neither could the county court issue an injunction as requested in Lindsey I. Generally speaking, res judicata “applies when there has been a final adjudication on the merits of an issue, without fraud or collusion, by a court of competent jurisdiction, on the matters litigated or which might have been litigated.'''’ (Emphasis in original.) Taggart v. Moore, 292 Ark. 168, 729 S.W.2d 7 (1987). Here there was no final adjudication by a court of competent jurisdiction on the matter of whether the county could lay out a road under the provisions of Ark. Code Ann. § 27-66-401. There are several parties in this action who were not parties to the first action and apparently had no notice that it was being tried in the courts. Therefore, the doctrine of res judicata does not preclude the present action.

The fourth and final argument is that the court erred in rejecting the testimony of the appellant’s witness concerning the damages for the right-of-way established by order of the county court. Although the court followed the statutory procedure for establishing the damages, it was error to refuse the appellant the right to contest the amount of damages by the viewers. The present case is unlike that of Castleman v. Dumas, 279 Ark. 463, 652 S.W.2d 629 (1983), where the land owner across whose land the road ran failed to produce evidence contradicting the damages established by the viewers. It would be a denial of due process to prevent the appellant from presenting evidence on the matter of damages resulting from the establishment of the right to the use of the roadway.

The law (Ark. Code Ann. § 27-66-401) provides that people who utilize this method of obtaining a roadway must compensate the property owners for damages caused by the roadway over their property. In establishing the damages, both parties must be allowed to offer evidence. The appellant, through the testimony of an expert witness, offered to submit evidence of the value of the lands before and after the establishment of the right-of-way by the county court. It should have been allowed to do so. The trial court awarded only “nuisance” damages. That was error. The landowner from whom a right of way is taken is entitled to recover for the right-of-way actually taken and, in addition, the damages, if any, to the balance of the land. Fort Smith Light & Traction Co. v. Schulte, 109 Ark. 575, 160 S.W. 855 (1913).

Reversed and remanded for the purpose of proceeding in a manner consistent with this opinion.

Glaze, J., dissents.

Newbern, J., not participating.

Hays, J., concurs.


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

text:
    Rick LOGAN v. STATE of Arkansas
    CR 86-214
    773 S.W.2d 419
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989

      Everett & Gladwin, by: John Everett', Gunn & Borgognoni, by: Leslie Borgognoni, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

On May 2,1986, the appellant was convicted by a jury of the crime of rape, a Class Y felony, and his punishment was set at 40 years in the Department of Correction. The appellant makes nine arguments for reversal, contending that the trial court erred in: (1) failing to grant a change of venue; (2) refusing to dismiss the amended information, refusing a request for a bill of particulars, and refusing to grant a continuance; (3) refusing to appoint a special prosecutor; (4) determining that the victim and another witness were competent to testify; (5) allowing expert witnesses to answer hypothetical questions; (6) denying the appellant’s motion for a directed verdict; (7) failing to grant a mistrial due to a violation of “the rule;” (8) failing to admonish the jury regarding a statement of the victim relating to other criminal acts; (9) failing to exclude a videotape film on the grounds that it violated the rule against hearsay and did not comply with the provisions of Ark. Code Ann. § 16-44-203 (1987). Finding merit in the appellant’s fifth argument, we reverse the conviction and remand this matter to the trial court.

The appellant was an employee of the Sunshine School, an educational facility for developmentally handicapped children. He was charged with the rape of one of the boys at the school, who was 14 years old at the time. The initial information, filed on November 7, 1985, charged the appellant with rape at some point during the period from January 1 through December 31,1984. At a trial on March 13, 1986, the jury was unable to reach a verdict and a mistrial was declared.

New counsel entered the case on behalf of the appellant on March 24, 1986. The prosecutor again amended the information to change the time period from that previously stated to October 1984 through October 1985. Various motions, including several of the points argued for reversal in this appeal, were presented and denied. The case was tried before a jury from April 29 through May 2, 1986, and a guilty verdict was returned.

The appellant’s fifth argument, on which we reverse, concerns the expert witness’ testimony in regard to hypothetical questions presented by the state. The state used Dr. Dow, a neurologist, as a witness prior to the victim taking the stand. The state called Dr. Lewis, a clinical psychologist, immediately after the victim had testified. The hypothetical were so long and complicated that it is most unlikely that the jury could have followed them. (The one posed to Dr. Dow occupies two pages of the record; the one directed to Dr. Lewis runs to four pages.)

One of the questions the prosecutor asked Dr. Dow was: “If I give you a hypothetical of the story that Jimmy [the victim] had told me, would you be able to give the jury an opinion about whether he would be able to fabricate a story with that many details?” The doctor answered the question by stating that he thought it was an extremely complicated tale for anybody to tell and remember and that he had serious doubts that this victim would be able to make up such a story. He further commented that he certainly would never tell it twice the same way if it were false. The deputy prosecutor also asked Dr. Dow whether, if the victim had related the same facts on many occasions and in the same sequence, the doctor would be able to tell if the statement were true. The response of the doctor was that it wasn’t possible unless it was based on the truth. The essence of the testimony of Dr. Dow was that he thought the victim was telling the truth.

Dr. Lewis, a psychologist, was presented a longer hypothetical. The same ingredients, somewhat more ambiguous in nature, that had been propounded to Dr. Dow were included in the hypothetical addressed to Dr. Lewis. Basically, the concluding question after the hypothetical was whether, in the doctor’s opinion, a child, such as the victim in this case, would be able to fabricate the details in the hypothetical. The answer was that the story was too complex and complicated for the victim to fabricate. The doctor further stated that he did not believe that the victim could be rehearsed enough to be able to repeat the same facts time and time again.

It is clear from the hypothetical questions and answers that the doctors were informing the jury that in their opinion the victim was telling the truth. This is exactly the situation which caused us to reverse the case of Johnson v. State, 292 Ark. 632, 732 S.W.2d 819 (1987). We also held that it was error to allow a psychologist to give testimony that the history by a child victim was consistent with sexual abuse in Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986). The doctor should not have been allowed to testify that the victim was telling the truth. This error was prejudicial.

In view of our decision to reverse and remand for a new trial, it is not necessary for us to address the issues of the court overruling the motion to dismiss the charge and the motions for a bill of particulars and a continuance. These issues may not arise in a new trial.

We briefly mention some of the arguments made in this appeal for the benefit of the new trial. However, we will not discuss all of the other arguments raised on appeal because it is not likely that they will occur exactly in the same manner in a new trial. The first argument listed for reversal is that the court erred in failing to grant a change of venue because of the extreme publicity and attitude of the community. It may be that on retrial the community may have settled down and there may be no basis for such a motion. If the trial court determines that pretrial publicity prevents a fair trial in Benton County, he may transfer it to some other location where a fair trial can be had. See Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983); Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979); and Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978).

The appellant also argues that a special prosecutor should have been appointed because the present prosecutor hired two law clerks from the defense firm during the time the investigation and trial were pending. These same facts were involved in Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (also decided this date), and we held that prejudicial error did not occur as a result of the trial court refusing to disqualify the prosecutor. The trial court conducted a hearing on this issue and refused to disqualify the prosecutor but in effect required the defense attorney to resign from the case. Although we cannot say that the trial judge abused his discretion by refusing to appoint a special prosecutor, we do note that this situation was the result of poor judgment on the part of the prosecutor in employing these clerks at that particular time.

The appellant argues that the trial court erred in allowing the victim and another young witness to testify. The qualifica-tions for giving testimony are recognized by both parties. However, the facts may be presented in a different manner at the next trial. At the time the trial court will make a ruling based upon the evidence presented at the new trial.

It is not necessary to discuss the sufficiency of the evidence because the evidence presented may not be the same in the next trial. However, the evidence contained in the record of this trial is sufficient to support a conviction.

The appellant strongly argues that the trial court should have granted a mistrial due to the violation of the rule concerning sequestration of witnesses. Apparently, two witnesses, employees of the school which the victim attended, discussed the testimony presented or to be presented during the trial. Failure to make timely objection is one of the arguments raised by the state. It is not necessary to make that determination in this case, but the violation by a witness of the sequestration rule is a matter to be handled by the trial court. Sanctions against the witnesses would be a proper remedy. Also, if it is determined that testimony was perjured or otherwise prejudicial, it might be cause for mistrial or reversal. There is no evidence in the record to indicate that appellant was prejudiced by this violation of the sequestration rule.

The appellant argues that it was reversible error for the trial court to fail to admonish the jury to disregard the victim’s non-responsive reply to a prosecutor’s question. The reply by the victim was: “Rick did those [sexual] acts to my friend.” The defense attorney was somewhat surprised and puzzled and stated: “Your Honor, I don’t really know how to handle that. I think the jury should be instructed not to consider this sort of thing and it’s not a responsive answer.” The judge agreed that “it’s not responsive.” No admonition was given, and the defense attorney proceeded no further. It is the duty of a party making a motion to see that it is acted upon.

The appellant insists that a videotape of the Sunshine School was improperly viewed by the jury. Apparently this tape was a walk-through tour in which the victim and other students and employees explained the physical layout of the school. It shows the restroom where most of the sexual assaults allegedly occurred. No sound was used, and we are unable to say that the tape was not helpful to the jury. Nor are we able to say that the appellant has demonstrated prejudice. The trial court has the discretion to determine the relevance of evidence such as the videotape.

Reversed and remanded.

Hickman and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. The appellant argues that the trial court erred in “allowing expert witnesses to answer hypothetical questions.” The majority opinion sustains that contention on the ground that the questions were “too long and complicated for the jury to comprehend” and because the experts “were informing the jury that in their opinion the victim was telling the truth.” I respectfully disagree with the majority on all counts.

As to length, I can find no instance where this court has ever taken issue with the length of a hypothetical question. The case law, which is clearly to the contrary, is summarized by the editors of Corpus Juris Secundum in Volume 32, Evidence § 551(2):

The length of the hypothetical question is not a controlling consideration, and it is not objectionable that the question is lengthy, provided it is reduced to writing and embraces the whole situation in a connected manner, even though the question may be somewhat complicated and not entirely grammatical.

As to complexity, the question was not in the least complicated. It was a series of simple, factual declarations the witness was asked to assume. At the end the witness was asked, “Based on those hypothetical situations, in your opinion is that something that a child of this level of functioning could fabricate?” These issues — the form and length of hypothetical questions — were for the discretion of the trial court [Missouri Pacific Railroad Co. v. Hampton, 195 Ark. 335, 112 S.W.2d 428 (1938)] and the majority opinion conspicuously ignores the standard of review customarily applied by appellate courts to the exercise of discretion by trial courts. It should be notéd that the appellant made no objection on the basis of length or complexity.

The remaining ground for reversal is that by answering the-hypothetical question, the experts were in effect expressing an opinion on the ultimate issue to be decided and were, therefore, invading the province of the jury. The majority opinion avoids using those words, but inasmuch as that was the only basis for objection by the appellant relevant to this appeal, I take that to be the issue addressed by the majority opinion.

The majority opinion makes no attempt to analyze the question in light of prevailing authority, it simply makes a sweeping declaration that the testimony should not have been admitted, relying entirely on Johnson v. State, 292 Ark. 632, 732 S.W.2d 819 (1987), and Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986). Neither opinion provides support for the majority’s position.

In Johnson, a physician testified to his opinion that the victim had been raped. A majority of this court held that to be error, the rationale being that the physician had no objective evidence of rape and was relying entirely on what the victim told him. Rather than supporting the majority in this case, however, the Johnson opinion pointedly observes that the expert’s testimony that the victim had been sexually abused would not have been objectionable on the basis that it was the “ultimate issue,” citing A.R.E. Rule 703 and Jennings v. State, 289 Ark. 39, 709 S.W.2d 69 (1986).

Nor is Russell v. State, supra, more supportive. Russell is a plurality opinion of two justices [see Justice Hickman’s concurring opinion, Marcum v. State, 299 Ark. 30, 771 S.W.2d 250 (1989)]. The “error” in Russell (which was held to be harmless) was that the testimony of a psychiatrist that the history given by a victim was consistent with sexual abuse was not admissible because it would not have aided the jury in its deliberations. Justice Hickman’s concurrence in Marcum states my views more fully than did my dissent in Russell, but suffice it to say, the issue addressed by the plurality in Russell is not the same question presented in this case, nor was it the point preserved by appellant in the trial court. The short of the matter is, the majority is reversing the case based neither on relevant precedent nor reasoned analysis.

The prosecuting witness in this case was a fourteen year old male who was retarded as a result of an acute illness at age four, rendering him unconscious for eleven days and on a respirator for four days. He suffered pronounced brain damage and his symptoms include epileptic seizures. One of the experts, a neurologist, had treated the child for over five years and the other, a clinical psychologist, had administered a number of tests. The substance of their testimony, admitted without objection prior to the hypothetical question, was that the child was capable of telling a lie, but not a very complex lie, or, if complex, he would have difficulty repeating it accurately. Given that set of circumstances, I believe it was within the trial court’s discretion to permit an expert in the field to express an opinion concerning the ability of such an individual to fabricate an account of the alleged events. It is of little consequence, I believe, that the testimony approaches the ultimate issue. In fact, the law permits that in a good many situations, e.g., a lay witness is permitted to testify that a testator lacked mental competency, which is the ultimate issue in a will contest; a police officer who gives an opinion that a defendant was drunk is testifying to the ultimate issue; a physician who states an opinion that a prosecuting witness was the victim of a rape is testifying to the ultimate issue. There is, in short, ample authority for permitting a witness to testify on a given point even though it is

the issue the jury is to decide. A.R.E. Rule 703; Jennings v. State, 289 Ark. 39, 709 S.W.2d 69 (1986); Johnson v. State, supra; State v. Geyman, 729 P. 2d 475 (Mont. 1986); Matter of J.W.K., 824 P.2d 164 (Mont. 1986); Allen v. State, 472 So.2d 1122 (Ala. Cr. App. 1985); Roubideaux v. State, 707 P.2d 35 (Okla. Cr. 1985); Lawrence v. State, 464 N.E.2d 923 (Ind. 1984); State v. Meyers, 359 N.W.2d 604 (Minn. 1984); State v. Kim, 645 P.2d 1330 (Hawaii 1982); and see "Expert Testimony in Child Sexual Abuse Prosecutions: A Spectrum of Uses," Boston University Law Review, Vol. 68:155.

My primary disagreement with what I perceive to be a summary rejection by the majority of the testimony in this case, irrespective of the trial court’s exercise of discretion, is that it proceeds from an implicit assumption that evidentiary rules which are, at best, only arguably sound where the victim of a sexual offense is a competent adult, are unquestionably sound in cases in which the victim is neither, but is a child and mentally retarded in the bargain. Surely the law is capable of differentiating between the two.

Hickman, J., joins.

       The following excerpt is typical of the question in its entirety: “Assume, if you would, that this child was a student at the Sunshine School, that in October and November, 1984, he was assigned as a helper in a classroom with the primary children. Also assume, if you would, that his duties there were washing dishes, sweeping floors, washing off tables, and assume, also, that in the room with Jimmy during this period of time was a teacher’s aide by the name of Rick, that the teacher in the room was the child’s boss and sometimes in the room was another helper, a little girl ....

       Appellant objected to the hypothetical question on grounds of hearsay, that the question assumed facts not in evidence, tended to inflame the jury and invaded the province of the jury.


author: Robert H. Dudley, Justice.

text:
    Kaye FREEMAN v. Roy M. CURRY, et al.
    89-50
    772 S.W.2d 586
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989

      Wayne Juneau, for appellant.

      Armstrong & Binns; Tom Wynne III, Prosecuting Attorney, for appellee.
   Robert H. Dudley, Justice.

The issues in this case are whether the Cleveland County Solid Waste Authority was validly created, and whether it had the power to collect delinquent service fees by billing them on personal property tax notices. The chancellor held that the authority was validly created, and, also, that it could collect late service fees as though they were delinquent taxes. We affirm that part of the decision holding that the Authority was validly created, but reverse that part relating to the collection of late fees as delinquent taxes.

The Department of Pollution Control and Ecology found that the dumping of solid waste in Cleveland County posed a threat to the environment and to public health. On February 8, 1985, the Department, by consent order, ordered the county, along with the Cities of Kingsland and Rison, to provide a system for collection and disposal of solid waste within six (6) months. In an effort to comply with this order, the Cleveland County Quorum Court passed a number of ordinances. Ordinances 85-3 and 85-4 established the Cleveland County Solid Waste Administrative Board and gave to it the exclusive authority to manage waste matters in Kingsland, Rison, and the unincorporated areas of Cleveland County. Two months later Ordinance 85-5 was passed. It changed the name of the board to the Cleveland County Solid Waste Disposal Authority and gave that board all of the power relating to sanitation districts as set out in Act 699 of 1979, which is codified at Ark. Code Ann. §§ 14-233-101 to -121 (1987), and entitled the “Joint County and Municipal Solid Waste Disposal Act.” Act 699 does not provide for notice, public hearings, special referendum, or collection of late service fees by billing as personal property taxes.

More than a year later Ordinances 85-4 and 85-5 were amended by Ordinance 86-8. Ordinance 86-8 provided that the Authority would charge service fees of $5.00 per month for households and $15.00 per month for businesses, regardless of whether they used the services, and the charges were made retroactive to May 1, 1985. The Ordinance provided that it was “passed pursuant to and under the authority of Act 742, of 1977 . . . as were Ordinances . . . 85-4 and 85-5.” Act 742 codified in. pertinent part at Ark. Code Ann. §§ 14-14-701 to - 712 (1987), provides that a county may furnish emergency solid waste, water, or transportation services by the establishment of a subordinate service district. Ark. Code Ann. § 14-14-708 (1987). The procedural requirements for establishing such a district include notice and a public hearing before the ordinance establishing the district is adopted, notice of adoption of the ordinance, and the opportunity for a special type of referendum. The Act also requires that the ordinance include a map of the district and the estimated cost and financing of the proposed services. None of these requirements were met. The Act allows delinquent charges, plus penalty, to be collected with personal property taxes, and, if not paid, to become a lien on the property. Ark. Code Ann. §14-14-711(d) (1987).

Appellants, taxpayers in the affected area, filed suit challenging the creation of the district and the validity of mandatory fees and their collection as delinquent taxes. Both parties moved for summary judgment. The chancellor held that the organization was validly created pursuant to Act 699 and that the requirements of Act 742 did not apply. He further held that using personal property tax notices and liens was a permissible method of collection, even under Act 699. We affirm that part of the holding providing that the district was formed under Act 699, but reverse that part holding that tax notices and liens could be used to collect delinquent charges.

Appellants first argue that the chancellor erred in finding the district was created under Act 699. The argument is without merit. The initial ordinances specified the Authority was created under Act 699. It was not until the county wanted mandatory fees and a method to collect delinquent charges that Act 742 was mentioned. The procedural requirements for forming a district under Act 742 were never mentioned or met. The chancellor’s ruling was correct.

The appellants next argue that the chancellor erred in holding that the district could collect delinquent service charges through the use of personal property tax notices and liens. The argument is meritorious. The General Assembly clearly provided that before mandatory fees, and tax liens for those mandatory fees, could be imposed, there must be notice and a public hearing. The quorum court may then create a district which is empowered to assess mandatory fees and collect them the same as delinquent personal property taxes. However, the quorum court must publish notice of adoption of such an ordinance and inform the electors that, if within thirty (30) days, fifty percent (50%) or more of the electors in the proposed district file written protests, the ordinance shall be considered void. Ark. Code Ann. § 14-14-709(a)(3) (1987). It is clear that the General Assembly intended for the taxpayers to have notice and the chance for this type of special referendum before a substantial interference with property ownership, the tax lien, could be imposed.

Accordingly, we reverse and remand for proceedings consistent with this opinion.


author: Robert H. Dudley, Justice. Steele Hays, Justice, Robert H. Dudley, Justice.

text:
    Rick LOGAN v. STATE of Arkansas
    CR 87-45
    773 S.W.2d 413
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989
    [Supplemental Opinion on Denial of Rehearing, September 11, 1989.]

      Gunn & Borgognoni, by: Leslie Borgognoni, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, who worked at a school for developmentally handicapped children, was convicted on seven counts of rape by deviate sexual activity. He committed the crimes against seven boys who attended the school. He was sentenced to forty years in prison on each count with the sentences to run consecutively. We affirm six of the judgments of conviction, but reduce one to carnal abuse in the third degree.

Appellant’s primary point of appeal concerns the prosecutor’s veiled reference to the appellant’s refusal to testify. The material part of the argument, the objection, and the ruling are as follows:

[PROSECUTOR]: . . .You know the defense pointed out to you in voir dire that they don’t have to do anything, they don’t have to prove anything, and a little bit to my surprise they didn’t. Early Friday or Thursday
[DEFENSE ATTORNEY]: Your Honor, object to any comments he may make in reference to us making or putting on a defense or not putting on a defense. I hate to interrupt.
[PROSECUTOR]: If it please the Court, that was brought up during the voir dire by the defense, Your Honor, several times. They also had people sworn in front of the Jury and made that decision.
[THE COURT]: The objection will be overruled.
[DEFENSE ATTORNEY]: Thank you, Your Honor.
[PROSECUTOR]: Everyone said you wouldn’t hold it against them and I know you won’t, although I will say I, a little bit about that and almost to the point of saying it caught me with my pants down, I was expecting something. Even though the only evidence you have before you is the evidence we presented, as viciously cross-examined, attacked by the defense attorneys, and that’s their job, even though it’s our evidence, I still feel compelled for two reasons to review it somewhat with you.

We have long held that it is improper for the prosecutor to call the attention of the jury to the failure of the accused to testify. Lee v. State, 73 Ark. 148, 83 S.W. 916 (1904). The United States Supreme Court has reached the same result on the basis of the Fifth Amendment. Chapman v. California, 386 U.S. 18 (1967).

In Bailey v. State, 287 Ark. 183, 697 S.W.2d 110 (1985), we reversed a case in which the prosecutor had commented, “The only thing that we’ve heard here today about which occurred in that room is from Doris Watson. She’s the only person. These two ladies that were called, they weren’t in that room.” Citing Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978), we explained that the comment fell into the category of a veiled reference to the accused’s failure to testify. In Adams v. State, supra, the following comment caused the case to be reversed, “because what did the defense, how many witnesses did the defense put on for your consideration.” In both cases the comments implied that the accused personally failed to dispute the State’s case. The case at bar is the same. Each of the boys testified that they were either alone or with another of the victims when the appellant committed the rape. Therefore, the appellant personally is the only one who could dispute the testimony. The clear inference is that the prosecutor was commenting upon the appellant’s failure to dispute the boys’ testimony. The comment was impermissible, and the court’s overruling of the objection was in error.

The State counters by arguing that the remedy was waived since the appellant did not move for a mistrial, the proper remedy for a comment on an accused’s failure to testify. See Floyd v. State, 278 Ark. 86, 643 S.W.2d 555 (1982). The argument would have merit if the trial judge had sustained the objection, meaning that he recognized the statement was a reference to the accused’s failure to testify. However, he overruled the objection which meant he ruled that it was not an impermissible comment. To require the appellant to move for a mistrial after the court had already overruled the objection would be to require a vain and useless act, and the law does not require vain and useless acts. Pender v. McKee, 266 Ark. 18, 37, 582 S.W.2d 929 (1979); Tri-State Ins. Co. v. Smith, 248 Ark. 71, 74, 449 S.W.2d 698 (1970). Thus, we address the error.

In Chapman v. California, 386 U.S. 18 (1967), the Supreme Court concluded that some constitutional errors can be found harmless and thus not require automatic reversal. The Court stated that before constitutional error may be held to be harmless, the reviewing court must be able to declare its belief that the error was harmless beyond a reasonable doubt. We have interpreted this to mean, “that there is not a reasonable possibility that the remarks complained of on the part of the prosecuting attorney might have contributed to appellant’s conviction. . . .” Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978). Accordingly, we must examine the record in this case.

First, it is significant that the remarks were only a veiled reference, and not a clear and blatant statement about the failure to testify. Second, the appellant put on no evidence, and cross-examination does not appear to have damaged the State’s case. Third, the State’s case was strong. The victims graphically testified about the crimes committed upon them, and in some instances their testimony was corroborated by other victims. Parents and school personnel corroborated the testimony by describing concurrent changes in behavior of the boys, and in some instances, physical signs of abuse. Finally, a psychologist testified without objection that in his opinion these mentally defective children could not get together and scheme to convict the appellant nor could anyone program them to act out the emotional despair or consistently describe the acts as they did. He testified that the victims’ fears and distress were real, and their emotions were real. He pointed out that they were not subjected to suggestion as each described the crime in his own way. For example, one boy referred to appellant’s penis, while another referred to his peepee, and another referred to his lilly. On the whole record, we are satisfied that the error was harmless beyond a reasonable doubt.

The appellant challenged the competency of the victims to testify. The trial court ruled that six of the seven victims were competent to testify. The appellant assigns that ruling as a point of appeal.

A trial court must begin with the presumption that every person is competent to be a witness. A.R.E. Rule 601. The burden of persuasion is upon the party alleging that the potential witness is incompetent. To meet that burden the challenging party must establish the lack of at least one of the following: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the factfinder a reasonable statement of what was seen, felt or heard. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). The competency of a witness is a matter lying within the sound discretion of the trial court and, in the absence of clear abuse, we will not reverse on appeal. Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982).

Here, the evidence easily established that the boys understood (1) and (2) above, the obligation of the oath and the consequences of false swearing. It is only number (3) above, the capacity to observe, remember and narrate, which requires any discussion. Each of the boys testified in graphic language to the event or.events he observed and recalled. Their testimony was responsive and consistent about the acts committed by appellant. We cannot say the trial judge abused his great discretion in admitting the testimony.

The appellant argues that in the convictions for the rape of two of the boys, Jeff New and Justin Crouse, there was no substantial evidence of forcible compulsion. The argument has no merit in the case of Jeff New. He testified that he tried to get away from appellant many times, but that appellant would grab him and keep him in the bathroom, and that on one occasion the appellant hit him on the head. Appellant was an adult teacher’s aid at the school where New was a student. Considering the age and authority relationship, the violence used was sufficient to meet the definition of forcible compulsion.

The argument does have merit with regard to Justin Crouse, because, in his case, there was no substantial evidence of forcible compulsion. There was testimony by the psychiatrist that Justin suffered some injury, but these injuries apparently came from the deviate sexual activities themselves, and not from force used to compel Justin to submit to the act. The evidence is not sufficient to sustain the conviction for the rape of Justin Crouse. However, when an accused is convicted of rape by deviate sexual activity and, on appeal, we find there was substantial evidence of deviate sexual activity, but no substantial evidence of forcible compulsion, we can reduce the conviction to carnal abuse in the third degree and sentence the appellant accordingly. Mills v. State, 270 Ark. 141, 603 S.W.2d 416 (1980). Accordingly, we reduce the conviction of rape of Justin Crouse to carnal abuse in the third degree, Ark. Code Ann. § 5-14-106 (1987), and reduce the sentence for this conviction to one year imprisonment to run consecutively to the other sentences.

The appellant next argues that it was error to allow a witness, Dorothy Jackson, to testify because, he argues, the prosecutor did not provide the witness’s name prior to trial. See A.R.Cr.P. Rule 17.1 (a)(i). The argument is without merit for two reasons. First, the objection was not timely. Her testimony was almost completed before the appellant objected. An objection to inadmissible testimony should be made promptly. Massey v. Massey, 268 Ark. 351, 596 S.W.2d 701 (1980). Even after the untimely objection the appellant did not move to strike the testimony already heard. Second, there was evidence from which the trial court could have concluded that the witness’s name had been supplied. The witness had already testified at a pre-trial hearing which constituted some notice that she would be called; therefore, the testimony should not have come as a surprise. Further, the deputy prosecutor stated to the court that the name of the witness had been orally provided. The point of appeal does not demonstrate reversible error.

The information charged the appellant with counts of rape by deviate sexual activity by either forcible compulsion or upon one who is incapable of consent because he is physically helpless. See Ark. Code Ann. § 5-14-103 (1987). The appellant contends these are crimes of different natures and cannot validly be charged together. If they were different crimes they could not be charged together, Ark. Code Ann. § 16-85-404 (1987), but they are not crimes of different natures. They are different counts of one offense which was committed by either of alternative means. Such an alternative charge is authorized by statute. Ark. Code Ann. § 16-85-414(a) (1987). The trial court’s ruling was correct.

The appellant filed a motion requesting that a special prosecutor be appointed because the Prosecuting Attorney had allegedly hired two law clerks who worked in the defense attorney’s office. The trial court denied the motion, and appellant assigns the ruling as error.

At the scheduled hearing on the motion Melvin Jackson, one of the clerks, was called to the stand. He testified that he had not worked for either of the defense attorneys, but instead worked for another lawyer who officed with them. The lawyer’s office-sharing arrangement was not explained. He testified that he had never seen the appellant, had not done any research or worked on his cases in any manner. He testified that the extent of his involvement was to make a remark about competency. He then went to work for the prosecutor’s office, but the prosecutor requested he not work on these cases, and he had not done so. A secretary testified that she thought he had heard a confidential office discussion. At a later hearing appellant testified that he had discussed the separate case with the other clerk, Carl LeMar. However, the prosecutor countered that he had offered LeMar a job, but that he would not begin work until the cases were over. The trial court denied the motion.

The trial court did not abuse its discretion in refusing to appoint a special prosecutor. Melvin Jackson did not receive any confidential information, and did not work on this case in any manner. More importantly, he did not assist the prosecutor in any capacity. Carl LeMar had not yet gone to work for the prosecutor. There simply was no violation of a confidential relationship. The law does not require that a trial court must disqualify a duly elected prosecutor unless there is some evidence of specific misconduct. Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974); cf. Todd v. State, 253 Ark. 283, 485 S.W.2d 533 (1972).

The appellant next argues that the trial court erred in refusing to grant a change of venue. He submitted eleven (11) affidavits supporting his motion for a change of venue, and the State responded with 141 affidavits of the opposite view. The trial court held that the appellant had failed to show that he could not get a fair trial in Benton County.

The burden of proof is upon the one moving for a change of venue. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). The trial court had sound discretion in deciding such a motion. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). Here, the State’s affidavits were from virtually every town in the county, and we cannot say the trial judge abused his discretion. What a criminal defendant is entitled to, and what the appellant got, was a jury composed of persons who could and did decide the case on the testimony presented in court and not on the basis of the news media coverage of the matter. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057 (1980).

Finally, the appellant argues that the trial court erred in refusing to grant individual voir dire. However, appellant expressly waived the issue in the trial court. Accordingly, we do not consider the argument.

Affirmed in part and modified in part.

Hickman, Hays, and Glaze, JJ., concur.

Steele Hays, Justice,

concurring. While I concur in the result, I respectfully disagree that it was error for the court not to order a mistrial on its own motion because of a “veiled reference” by the prosecutor during closing argument to the defendant not testifying in his own behalf. It is quite apparent that the prosecuting attorney was not referring to the defendant not having testified, but to the fact the defense had produced several potential witnesses to be sworn at the beginning of the trial, and then rested without calling a witness.

Two of the cases cited by the majority provide a common basis for analysis. In neither case were the remarks of counsel “veiled” or ambiguous, but were direct and deliberate references to the defendant’s failure to testify. In Lee v. State, 73 Ark. 148, 83 S.W. 916 (1904), the deputy prosecutor told the jury “If the defendant is not guilty, no one knows it better than he does. Why did he not take the stand and tell you that he did not steal those cattle? He sits there silent as the grave, and asks you to turn him loose, without opening his mouth as a witness.”

Similarly, in Chapman v. California, 386 U.S. 18 (1966), the state’s attorney took full advantage to comment upon the defendant’s silence. The Chapman court described the prosecutor’s argument to the jury, as “filled from beginning to end with numerous references to their silence and inferences of their guilt resulting therefrom.” In contrast to Lee and Chapman, the remarks of counsel in this case (“they don’t have to prove anything, and a little bit to my surprise they didn’t”) pale in comparison, as the majority opinion tacitly concedes.

I agree entirely with the Lee and Chapman cases, but the majority would apply the rule, as it did in Bailey v. State, 287 Ark. 183, 697 S.W.2d 110 (1985), whenever the attorney for the state makes even the faintest allusion to the lack of proof from the defense. That was, I believe, never the intent of the Lee and Chapman courts. I expressed my views at some length in my dissent in Bailey v. State, supra, and will not repeat those comments here. Suffice is to say the improvidence of extending the rule beyond its intended boundaries is thoughtfully stated by Justice Fogleman in his dissenting opinion in Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978):

Of course, a prosecuting attorney should not comment on a defendant’s failure to testify. But for an advocate to be prohibited from pointing out that no witness testified except those presented by the state, as a basis for eliminating reasonable doubt and as a factor in determining the weight to be given that evidence, is extreme and unnecessary. See 14 ALR 3d 723, 729, § 3, Practice Pointers. It reads something into the Fourteenth Amendment that isn’t there. I fear that it means that a prosecuting attorney cannot ask a jury to accept even an isolated statement by one witness because no one denies it, when dozens of people could if it were untrue.
It is all very well to relegate the prosecuting attorney into the role of a minister of justice in some stages of the prosecutorial process, for he must act in a quasi-judicial capacity. But in closing argument to a jury, his role as an advocate completely overshadows any other role. Then he is society’s — the people’s — only advocate. Sending him into the arena shackled, hamstrung and gagged destroys his ability to act as such, at a time when society’s need for strong advocacy was never greater.

Nor can I agree that when an objection is overruled, it is tantamount to a motion for mistrial because the motion itself would be a “vain and useless act.” The appellant makes no such argument. The implicit holding of the majority produces a curious and troubling precedent — whenever there is an objection during trial proceedings, unless the objection is sustained, there is a built-in motion for mistrial in the record, albeit none was requested, presenting the appellate court with the burden of deciding whether the trial court abused its discretion by not granting a mistrial on its own initiative as a result of a ruling which is only later held to be erroneous.

Hickman, J., and Glaze, J., join.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING SEPTEMBER 11, 1989

Robert H. Dudley, Justice.

In his petition for rehearing the appellant contends that the opinion in this case erroneously refers to 141 affidavits opposing a change of venue. Appellant states that the 141 affidavits are not part of the record in this case, Supreme Court Case No. CR 87-45, but, instead, are a part of the record in another of his appeals, Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989). The appellant is mistaken. The 141 affidavits are reflected at pages 123 through 263 of the transcript, submitted by appellant in this case, No. CR 87-45.

Appellant makes other arguments for rehearing, and we find no merit in them. The petition for rehearing is denied.


text:
    Robert STERLING v. UPJOHN HEALTHCARE SERVICES, INC. and Steve Warren
    88-277
    772 S.W.2d 329
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989

      Perroni, Rauls & Looney, P.A., by: Stanley D. Rauls, for appellant.

      Friday, Eldredge & Clark, by: James W. Moore and Michael S. Moore, for appellee.
   Robert H. Dudley, Justice.

This is an appeal from a summary judgment order in favor of the appellees, dismissing the appellant’s claim for the tort of outrage, or intentional infliction of emotional distress. A separate count for slander remains to be decided, but the trial court entered an appropriate order under ARCP Rule 54(b), allowing the appellant to appeal on this separate issue. We affirm the trial court’s order granting summary judgment on the count for the tort of outrage.

The proof submitted with a summary judgment motion must be viewed most favorably to the party resisting the motion, Leigh Winham, Inc. v. Reynolds Ins. Agency, 279 Ark. 317, 651 S.W.2d 74 (1983); so we construe the facts most favorably to the appellant in this case, Robert Sterling. The facts, so viewed, are as follows. Sterling was hired as administrator for Upjohn Healthcare Services, Inc. on June 16,1984. He supervised employees in the Little Rock office of Upjohn, and he, in turn, was supervised by Steve Warren who was with the company’s regional office in Kansas City. Warren took a dislike to Sterling, and from about August 1, 1984, until December 1985 made various attempts to undermine Sterling’s authority with his employees and to have him fired. Warren falsely told other Upjohn employees that Sterling was always drunk, falsely accused Sterling of making untrue statements on his job application, delayed the processing of Sterling’s expense vouchers, as well as those of other employees who would blame Sterling for the delay, asked employees under Sterling’s supervision to watch Sterling and report back to him periodically, instructed Sterling not to communicate with other employees and to route all questions to him, and finally, cursed Sterling, becoming violent when discussing him with other employees.

Sterling contends that Warren’s conduct made it impossible for him to perform his duties as administrator. He resigned his position on December 7,1985, but the company refused to accept the resignation and fired him on December 11,1985. Sterling was denied unemployment benefits because Upjohn reported that he was fired for failing to follow a direct management order, spending work time on personal business ventures, and for gross misconduct.

Sterling filed suit against Upjohn and Warren, asserting causes of action for slander and for the tort of outrage, or intentional infliction of emotional distress. The appellees filed a motion for summary judgment. The trial court found that even viewing the facts most favorably to the appellant, they were not sufficient to support a claim for the tort of outrage, and granted the appellee’s motion on that count.

The trial court’s ruling was correct. The employer’s conduct in this case simply does not meet the standard of egregiousness required to sustain a claim for outrage. In two recent cases, Ingram v. Pirelli Cable Corp., 295 Ark. 154, 747 S.W.2d 103 (1988), and Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), employees were subjected to much more objectionable treatment, and we held that there was not enough evidence to support a jury verdict for outrage. We have taken a strict view of claims for outrage in employment situations. Ingram, supra. This is because an employer must be given a certain amount of latitude in dealing with employees. “In order to sustain a claim for outrage, conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). The conduct here simply does not meet that standard. Accordingly, summary judgment was proper. See Deason v. Farmers and Merchants Bank of Rogers, 299 Ark. 167, 771 S.W.2d 749 (1989).

Affirmed.


author: Steele Hays, Justice.

text:
    Diane BATES and Leonard Bates v. Billie REYNOLDS
    88-304
    771 S.W.2d 774
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989

      Ben Seay, Legal Services of Arkansas, for appellant.

      John D. Lightfoot, Deputy Prosecuting Att’y, for appellee.
   Steele Hays, Justice.

The Probate Court of Union County, Juvenile Division, on the complaint of Billie Reynolds, found that Jackie and Daniel Christian were dependent and neglected minors. The Christians are the children of appellant, Diane Bates, and the stepchildren of appellant, Leonard Bates. A temporary order was issued making these children wards of the state and authorizing a juvenile officer to take custody of them pending further orders. Both children were examined by a physician and X-ray photographs were taken at a cost of $244.

Some months thereafter the probate court, without a hearing or notice, ordered that the appellants be responsible for payment of the costs of the X-rays. Appellants moved to vacate the order and the motion was denied upon a finding that Ark. Code Ann. § 9-27-355(b) empowers the probate court to compel parents of dependent-neglected children to pay such costs.

Appellants have appealed, alleging that it was error to order them to pay expenses incurred in examinations for possible physical abuse of their children, and that the trial court did not have subject matter jurisdiction to order the appellants to pay for these examinations because the order violated due process and emanated from a void petition and orders. Finding merit in the first point, we do not reach the second.

Appellants concede that Ark. Code Ann. § 9-27-355 (1987), gives juvenile courts the power to order a parent or guardian to pay the costs of health care when the physical, mental or emotional condition of any juvenile requires it. They contend, however, that the costs of X-rays in this instance were incurred, not in providing health care, but for the purpose of investigating suspected physical abuse. Investigative costs, they contend, are dealt with in Ark. Code Ann. § 12-12-506 (1987), which provides:

(a) Any person who is required to report cases of child abuse, sexual abuse, or neglect may take or cause to be taken, at public expense, color photographs of the areas of trauma visible on a child and, if medically indicated, cause to be performed radiological examinations of the child. [Our emphasis.]

We must sustain the argument. Since the order directing appellants to pay these costs was entered without a hearing, we have nothing other than the express language of the order itself, which supports the conclusion that the X-ray photographs were taken to determine whether evidence of child abuse existed. The pertinent provisions read:

2. The two children were ordered examined for possible physical abuse and were examined at Union Medical Center, El Dorado. [Our emphasis.]
3. The parents of the children, Diane and Leonard Bates, are responsible for payment of the costs incurred in the examination, the cost of Union Medical Center now having a balance of $244.00. A copy of the statement from Union Medical Center showing a balance of $244.00 is attached.

At the time of these proceedings, juvenile court was a court of limited jurisdiction, possessing only such powers as were expressly conferred by law. Robinson v. Shock, 282 Ark. 262, 677 S.W.2d 956 (1984); Minetree v. Minetree, 181 Ark. 111, 26 S.W.2d 101 (1939); Jennings v. Ft. Smith District of Sebastian County, 115 Ark. 130, 117 S.W. 920 (1914). That being so, we are not willing to assume the finding that the children were examined “for possible physical abuse” means anything other than what the clear language conveys.

Reversed and remanded.

Glaze, J., concurs.