author: Donald L. Corbin, Justice. ROAF, J.,

text:
    James BOOKER Jr. v. STATE of Arkansas
    95-327
    922 S.W.2d 337
    Supreme Court of Arkansas
    Opinion delivered May 28, 1996

      Eugene B. Hale, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, James Booker Jr. appeals the order of the Hempstead County Circuit Court denying transfer of his case to juvenile court. This interlocutory appeal is statutorily provided in Ark. Code Ann. § 9-27-318(h) (Repl. 1993). Jurisdiction is properly had in this court pursuant to Ark. Sup. Ct. R. l-2(a)(12). We find no error and affirm the denial of the motion to transfer.

As provided in section 9-27-318(c), Booker was charged by information in circuit court, alleging that on or about January 14, 1994, he, along with two other juveniles, Mario White and Jay Lee, committed the offense of aggravated robbery, a Class Y felony, in violation of Ark. Code Ann. § 5-12-103 (Repl. 1993). Booker was born December 4, 1977, and was thus sixteen years of age at the time of the alleged offense.

The affidavit of probable cause states that on January 14, 1994, officers of the Hope Police Department responded to a robbery at Harry’s Pawn Shop on South Walnut Street in Hope. Upon their arrival at the scene, officers observed that the owner of the pawn shop, Harry Phillips, had been struck numerous times in the head with an unknown object and knocked unconscious. The victim, Mr. Phillips, who was seventy-six years old at the time, was subsequendy taken to the hospital for treatment. Officers noted that during the robbery, several handguns had been stolen from the pawn shop. Booker was subsequently arrested for the aggravated robbery. Upon Booker’s arrest, police recovered two of the guns stolen from the pawn shop and noticed that Booker wore tennis shoes which matched footprints found at the scene.

Booker moved to transfer his case to juvenile court, and the circuit court conducted a hearing on the motion. The state called two witnesses, Detective Jeffery Neal, of the Hope Police Department, and Larry Johnson, of the Hempstead County Juvenile Probation Office. Booker then took the stand on his own behalf, and also presented testimony from his mother, Mrs. Michelle Booker, and his father, Mr. James Booker Sr.

Detective Neal testified that he had conducted an interview with Booker, during which the boy’s father and attorney were present. Detective Neal stated that Booker informed him that he (Booker) had gone into the pawn shop first, followed by Jay Lee, and that he (Booker) had been the first one to strike the victim. Detective Neal stated that he could not recall if Booker had told him that he had struck the victim with a crescent wrench, however, the detective stated that a crescent wrench was discovered at the scene and appeared to have blood on it. Detective Neal further testified that Booker stated they went to the pawn shop for the purpose of stealing guns. Detective Neal stated that the victim had suffered severe head injuries caused by a blunt instrument, and that a crescent wrench would be considered a blunt instrument.

Larry Johnson took the stand next for the state. Johnson testified that he had known Booker since the juvenile began having behavior problems at school in the seventh grade. Johnson stated that he was not aware of Booker committing any crimes prior to the robbery on January 14, 1994, but that since that time, he knew that Booker was being held at the Youth Services Center in Alexander, Arkansas, after pleading guilty to possessing a firearm. Johnson further stated that also subsequent to his arrest for the aggravated robbery on January 14, 1994, he was aware of Booker’s involvement in another incident involving a firearm. Specifically, Johnson stated that he had been contacted by a man concerning an incident in which Booker and another youth had pulled a gun on the man’s niece. Johnson stated that he had advised the man to contact the police, but was not aware whether the man had done so.

Booker then testified on his own behalf. Booker stated that he was doing well at the Youth Services Center, and that he was learning work skills, such as bricklaying. Booker said that he enjoyed his classes, that he was learning to behave himself, and that he felt he could be rehabilitated. As to the charges facing him, Booker stated that he had not struck the victim and that the robbery had been planned by Mario White and Jay Lee. On cross-examination, Booker stated that he was now telling the truth concerning his participation in the victim’s beating, and that he had lied to Detective Neal in the statement he gave following his arrest.

Booker’s mother then took the stand and stated that Booker was doing well at Alexander, and that his prospects for rehabilitation were good. Booker’s father also testified that he felt his son was doing well at the Youth Services Center, and that his prospects for rehabilitation were good.

At the close of all the testimony, Booker’s attorney moved for additional time to provide the court with letters and reports concerning Booker’s progress at the Youth Services Center. The court granted the motion, and stated it would reserve judgment on the issue of transfer until a later date. The court did, however, address Booker’s motion for a probable-cause hearing, stating that it found there was ample probable cause concerning Booker’s involvement in the aggravated robbery. In its order, the trial court summarily denied Booker’s motion to transfer his case to juvenile court, and this interlocutory appeal followed.

Booker’s sole point on appeal is that the circuit court erred in denying his motion to transfer the charge to juvenile court. In support of this point, Booker argues that the state failed to produce evidence showing that he was involved in a violent offense, or that the offense committed was one of a repetitive pattern of adjudicated offenses, or that appellant was beyond rehabilitation.

We have repeatedly held that the decision of the circuit court denying transfer to juvenile court will not be reversed unless the ruling was clearly erroneous. See, e.g., Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). Further, we have long recognized that it is the movant’s burden to prove a transfer to juvenile court was warranted under section 9-27-318. Williams, 313 Ark. 451, 856 S.W.2d 4; Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). This is a burden that Booker has not met.

We recognize that pursuant to section 9-27-318(f), the determination that a juvenile should be tried as an adult must be supported by clear and convincing evidence. See, e.g., Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995); Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994). We have defined clear and convincing evidence as “that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.” Cole v. State, 323 Ark. 136, 140, 913 S.W.2d 779, 781 (1996) (quoting Cobbins v. State, 306 Ark. 447, 450, 816 S.W.2d 161, 163 (1991)).

Section 9-27-318(e) provides that the circuit court shall consider the following factors when making the decision to retain jurisdiction or transfer the case to juvenile court:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

At the conclusion of Booker’s transfer hearing, the court elected not to make a ruling so that Booker would be allowed to provide the court with pertinent documents that were not yet available. When the circuit court did, however, rule on Booker’s motion, the specific reasoning of the court was omitted from the order. We recognize that our previous decisions have held that circuit courts are not required to make specific findings of fact in juvenile-transfer cases. Williams, 313 Ark. 451, 856 S.W.2d 4; Vickers, 307 Ark. 298, 819 S.W.2d 13. We do, however, encourage those courts to make such findings, as it would be most helpful to our review. Since we have not been provided with any factual conclusions in this case, we must determine whether, given the testimony and other evidence presented at the hearing, the circuit court’s decision to retain jurisdiction is supported by clear and convincing evidence.

A review of the record in this case reveals that Booker was charged by felony information with committing aggravated robbery on January 14, 1994. Testimony indicates that Booker took part in the aggravated robbery of Harry’s Pawn Shop, and that during the course of that robbery, the elderly victim, Harry Phillips, suffered severe head injuries from being struck with a blunt instrument. Booker initially admitted to police that he had taken part in the robbery and that he had been the one who first struck the victim. Booker further admitted that the reason they committed the robbery was to steal guns from the pawn shop. At the transfer hearing, Booker recanted his previous statement concerning his involvement in the victim’s injuries and testified that he had not struck the victim.

The fact that Booker later changed his story concerning his personal participation in the victim’s beating does not change the nature of the charges pending against him. In fact, in Guy v. State, 323 Ark. 649, 916 S.W.2d 760 (1996), we stated that, “[i]t is of no consequence that appellant may or may not have personally used a weapon, as his association with the use of a weapon in the course of the crimes is sufficient to satisfy the violence criterion.” Id. at 654, 916 S.W.2d at 763 (citing Collins v. State, 322 Ark. 161, 908 S.W.2d 80 (1995)).

Appellant contends the state did not produce any evidence indicating that Booker was directly involved in the commission of a violent offense. Apparently, Booker is basing this argument on his testimony that he, himself, had not actually struck the victim during the robbery, and that he was merely a follower, rather than the mastermind behind the crime. For the reasons previously cited, as well as those set out below, Booker’s argument must fail. The evidence shows that Booker and the two other boys went to the pawn shop to steal some guns, and that during the course of the crime they beat the elderly shop owner to the extent that he suffered severe head injuries. Although we have previously recognized that it is possible to commit the offense of aggravated robbery without the actual employment of violence, that was certainly not the case here. See, e.g., Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992). The circuit court could very easily have found that the evidence presented satisfied the first factor provided in section 9-27-318(e). This factor alone would have been sufficient reason for the circuit court’s denial of transfer.

We have held that although a circuit court must consider all the factors listed in section 9-27-318(e), the court need not give each of the factors equal weight and it is permissible to give substantial weight to the criminal information. Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied, 304 Ark. 402-A, 805 S.W.2d 80 (1991). In fact, the criminal information, on its own, is sufficient to establish that the offense charged is of a violent and serious nature. Davis, 319 Ark. 613, 893 S.W.2d 768; Vickers, 307 Ark. 298, 819 S.W.2d 13. Moreover, proof of each factor need not be introduced against the juvenile for the circuit court to retain jurisdiction. Davis, 319 Ark. 613, 893 S.W.2d 768; Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). The use of violence in the commission of a serious offense is a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile’s case, but the commission of a serious offense without the use of violence is not sufficient grounds to deny transfer. Sebastian, 318 Ark. 494, 885 S.W.2d 882; Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992). We find that there was ample evidence presented at Booker’s hearing demonstrating that the offense committed was a serious one and that violence was employed by Booker in its commission.

Although we agree with appellant as to his second argument, that the record indicates Booker had no prior adjudicated offenses, we nonetheless find that the circuit court could properly have considered the testimony concerning Booker’s subsequent criminal acts. The fact that subsequent to his arrest for aggravated robbery Booker was convicted of a charge involving his possession of a firearm and was committed to the Youth Services Center could have been considered by the circuit court as indicative of the juvenile’s prospects for rehabilitation, as provided in section 9-27-318(e)(3). The testimony that Booker took part in a second subsequent offense involving his and another youth’s pulling a gun on a girl is further evidence concerning his dim prospects for rehabilitation. We simply cannot say, in light of all the evidence presented at the hearing, that the circuit court’s denial of transfer of Booker’s case to juvenile court was clearly erroneous.

Affirmed.

ROAF, J.,

dissents for the reasons stated in Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996) (Roaf, J., dissenting).

Dudley, J., not participating.


source: Caselaw Access Project

author: Donald L. CORBIN, Justice. Andree Layton Roaf, Justice,

license: Public Domain

text:
    Louis Ricardo BUTLER v. STATE of Arkansas
    95-981
    922 S.W.2d 685
    Supreme Court of Arkansas
    Opinion delivered May 28, 1996

      University of Arkansas at Little Rock School of Law Legal Clinic, by: Spencer R. Robinson, Rule XV Law Student, and Gerard F. Glynn, Rule XV Supervising Attorney, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Donald L. CORBIN, Justice.

Appellant, Louis Ricardo Butler, appeals the order of the Pulaski County Circuit Court, denying transfer of his case to juvenile court. This interlocutory appeal is provided in Ark. Code Ann. § 9-27-318(h) (Repl. 1993). Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(12).

A felony information was filed in circuit court charging appellant and Myron Antonio McClendon with three counts of aggravated robbery, Class Y felony, in violation of Ark. Code Ann. § 5-12-103 (Repl. 1993), and three counts of theft of property, two being Class A misdemeanors and the other being a Class B felony, in violation of Ark. Code Ann. § 5-36-103 (Repl. 1993). The information reflects that the charges stem from three separate instances, taking place on July 7, 1994, July 10, 1994, and August 11, 1994, involving appellant and McClendon robbing three different pizza delivery personnel at gun point with the purpose of committing a theft. Appellant was born April 23, 1979, and was thus fifteen years of age at the time of the alleged offenses.

After the state filed the felony information, a delinquency petition was filed against appellant in juvenile court concerning the robbery which occurred on August 11, 1994. The record reflects that the state mistakenly filed the last aggravated-robbery incident in juvenile court, not realizing that charges arising out of all three robberies had already been filed in circuit court. The state had also filed an unrelated delinquency petition alleging that appellant had committed the offenses of residential burglary, Class B felony, and theft of property, Class A misdemeanor, on July 13, 1994.

Appellant moved to transfer the charges pending in circuit court to juvenile court. The circuit court conducted a hearing on appellant’s motion, during which hearing testimony was heard from appellant’s parents, Mr. Louis Butler Sr. and Mrs. Lady Williams, appellant’s counselor, Mr. Sanford Toilette, and the police officer who investigated the three robberies, Detective Todd Armstrong, of the Litde Rock Police Department.

Mr. Butler testified that his son began having trouble when he and his mother were divorced in 1988, and that before the divorce, appellant had been in advanced classes at school. Mr. Buder stated that after the divorce, appellant had been placed in alternative schooling at the Joseph Pfeifer Kiwanis Camp, and that he had begun to show progress within three or four weeks. Mr. Buder stated that his son was a good kid and that he knew right from wrong. Mr. Buder expressed concerns for appellant’s safety should he be sentenced to prison, and stated that sentencing appellant to prison would not help to rehabilitate him.

Mrs. Williams also testified that appellant had only begun to have trouble since the divorce of his parents, and that because of his troubles, she had put appellant in a program at Pinnacle Point Hospital, in addition to the Pfeifer camp, and she had attempted to place him in the New Futures program. Mrs. Williams stated that prison would not be a good place for appellant because he needs rehabilitation. Mrs. Williams concluded by saying that appellant was not a violent person, but when he consumes alcohol, his personality changes completely.

Sanford Toilette, director of the alternative classroom program for kids at risk at the Pfeifer camp, took the stand next on behalf of appellant. Mr. Toilette stated that appellant had been assigned to his program in November 1988, and that he had completed the thirty-day program. Mr. Toilette stated that appellant had continued to come back to the program over the next three years as part of the summer camp, and that he eventually became an honor camper. Mr. Toilette stated that he felt appellant was a good kid with a good heart, and that the seriousness of the offenses had made an impression on him.

The last witness to testify at the hearing was Detective Armstrong, who described each of the robberies for the court. Detective Armstrong stated that on July 7, 1994, pizza was ordered from Pizza 4 Less and upon the driver’s arrival, two black males — one armed with a shotgun and the other with a handgun — robbed the deliveryman of two pizzas and cash. Detective Armstrong stated that on July 10, 1994, pizza was again ordered from Pizza 4 Less and when the driver arrived, he was asked to come inside. The detective noted that on this occasion the robbery had taken place at appellant’s father’s residence. Once the driver was inside the residence, Detective Armstrong continued, the deliveryman was robbed of his pizzas with the use of a sawed-off shotgun. Regarding the third and last robbery, which occurred on August 11, 1994, Detective Armstrong stated that pizza was ordered from Pizza Hut and upon the driver’s arrival, he was approached by two black males, one of whom was armed with a rock or brick and threatened the deliveryman. Upon the threat being made with the weapon, Detective Armstrong stated, the deliveryman fled his vehicle, while one of the suspects got into the vehicle and left. Detective Armstrong further testified that he had interviewed appellant concerning the crimes, and that appellant had confessed his participation in two of the three robberies. Before leaving the witness stand, Detective Armstrong identified appellant for the record.

At the conclusion of Detective Armstrong’s testimony, the state submitted the two previously mentioned juvenile delinquency petitions against appellant as evidence, and the court received them into the record. The circuit court subsequently denied appellant’s motion to transfer his case to juvenile court at a later hearing. Appellant now brings this interlocutory appeal.

In support of this appeal, appellant raises three points: First, that the circuit court erred in not dismissing the three counts of theft of property charged in the felony information, as they are not listed among those offenses enumerated in section 9-27-318(b)(l); second, that the circuit court erred in denying the motion to transfer the case to juvenile court as there was not clear and convincing evidence that appellant should be tried as an adult; and third, that the circuit court erred by failing to provide a sufficient statement of the court’s findings to demonstrate that each of the elements set out in section 9-27-318(e) was considered. We affirm the circuit court’s ruling denying transfer to juvenile court as to the three counts of aggravated robbery, but we reverse the denial as to the three counts of theft of property.

I. Jurisdiction of Non-enumerated Offenses

Appellant argues that because he was only fifteen years old at the time the offenses were allegedly committed, the circuit court did not have jurisdiction over the three counts of theft charged in the information because theft of property is not among those charges enumerated in section 9-27-318(b)(l). Appellee concedes this error. We agree that the denial of transfer as to the three charges of theft of property was error.

Section 9-27-318 specifically provides, and this court has consistendy held, that the circuit court has jurisdiction over a juvenile aged fourteen or fifteen only when the juvenile is charged with one or more of the offenses enumerated in section 9-27-318 (b)(1). Any other charges against the juvenile must be dismissed by the circuit court for lack of jurisdiction. See, e.g., State v. Gray, 319 Ark. 356, 891 S.W.2d 376 (1995); Banks v. State, 306 Ark. 273, 813 S.W.2d 256 (1991).

Appellant relies on Banks, 306 Ark. 273, 813 S.W.2d 256, in support of his argument. In Banks, the appellant, who was fourteen years of age at the time of the crimes, was charged with the offenses of aggravated robbery, attempted capital murder, theft of property valued at less than $200.00, and fleeing from arrest. We held that, given the juvenile’s age, the circuit court only had jurisdiction over the appellant as to the charge of aggravated robbery, as it was the only one of the four charges facing appellant which was among those enumerated in section 9-27-318(b)(l). Because the circuit court did not have jurisdiction over the remaining three charges, we held that the charges should have been dismissed. In the case at hand, appellant is charged with three counts of aggravated robbery and three counts of theft of property. While aggravated robbery is one of the offenses enumerated in section 9-27-318(b)(l), theft of property is not. Our inquiry does not, however, end here.

Section 9-27-318(a) provides that if the prosecutor can file charges against a juvenile in circuit court, the prosecutor “may file any other criminal charges that arise out of the same act or course of conduct in the same circuit court case if after a hearing before the juvenile court a motion to transfer is so orderedf.]” (Emphasis added.) Pursuant to this provision, the prosecutor in this case could have filed the theft charges in juvenile court and then moved the juvenile court to transfer the charges to circuit court, where they would be joined with the aggravated robbery charges. That, however, was not done.

Since the three theft charges are not among those enumerated in subsection (b)(1) of 9-27-318, and since the prosecutor in this case did not file the charges in juvenile court and then move to transfer them to circuit court, the circuit court never had jurisdiction of those charges. Based on our prior holdings, the three counts of theft of property filed against appellant in circuit court must therefore be dismissed.

II. Sufficiency of the Evidence

Appellant argues that there was not sufficient evidence produced at the hearing for the court to find by clear and convincing evidence that appellant should be tried as an adult. We find no merit to this argument.

A circuit court’s decision to deny transfer of an appellant’s case to juvenile court will not be reversed unless it is “clearly erroneous.” See, e.g., Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). Furthermore, it is the movant’s burden to prove the transfer to juvenile court was warranted. Williams, 313 Ark. 451, 856 S.W.2d 4; Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). This is a burden appellant has not met.

We recognize that pursuant to section 9-27-318(f), the determination that a juvenile should be tried as an adult must be supported by clear and convincing evidence. See, e.g., Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995); Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994). Clear and convincing evidence is defined as “that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.” Cole v. State, 323 Ark. 136, 140, 913 S.W.2d 779, 781 (1996) (quoting Cobbins v. State, 306 Ark. 447, 450, 816 S.W.2d 161, 163 (1991)).

Section 9-27-318(e) provides that the circuit court shall consider the following factors when making the decision to retain jurisdiction or transfer the case to juvenile court:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

In this case, the circuit court announced its decision by stating that:

I’ve gone back and reviewed the evidence in this matter, listened to the Court Reporter’s matters, and reviewed the law on it. And after reviewing the facts of this case, there’s no question in my mind but this case should not be in juvenile, based upon the circumstances of it, the Defendant’s participation, et cetera.

From this statement, it appears that the circuit court took into consideration all the testimony and evidence presented at the hearing concerning the three factors listed in section 9-27-318(e), and found that the case should be heard in circuit court. It is of no consequence to appellant’s argument concerning the circuit court’s alleged failure to consider the second and third factors that the circuit court did not methodically list out each piece of evidence as it related to each specified factor. It is enough that the circuit court stated that it took into consideration all the evidence presented at the hearing in making its decision to deny transfer.

We have stated that although a circuit court must consider all the factors listed in section 9-27-318(e), the circuit court need not give each of the factors equal weight, and it is permissible to give substantial weight to the criminal information. Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied, 304 Ark. 402-A, 805 S.W.2d 80 (1991). In fact, the criminal information, on its own, is sufficient to establish that the offense charged is of a violent and

serious nature, thus satisfying the first element listed in section 9-27-318(e). Davis, 319 Ark. 613, 893 S.W.2d 768; Vickers, 307 Ark. 298, 819 S.W.2d 13. Moreover, proof of each factor need not be introduced against the juvenile in order for the circuit court to retain jurisdiction. Davis, 319 Ark. 613, 893 S.W.2d 768; Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). The fact that the offenses charged were serious in nature and committed with the use of violence is sufficient to warrant a denial of transfer of appellant’s case to juvenile court.

Similarly, the use of violence in the commission of a serious offense is a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile’s case. Sebastian, 318 Ark. 494, 885 S.W.2d 882; Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992). Although we have previously recognized that it is possible to commit the offense of aggravated robbery without the actual employment of violence, we find that was not the case in these three incidents. See, e.g., Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992). The circuit court in this case could easily have found that the evidence presented satisfied the first factor provided in section 9-27-318(e), and this factor alone would have been sufficient reason for the circuit court’s denial of transfer.

Moreover, the fact that appellant may not have held a gun in each of the robberies is of little consolation to appellant as it does not change the nature of the charges pending against him. In fact, in Guy v. State, 323 Ark. 649, 916 S.W.2d 760 (1996), we stated that, “[i]t is of no consequence that appellant may or may not have personally used a weapon, as his association with the use of a weapon in the course of the crimes is sufficient to satisfy the violence criterion.” Id. at 654, 916 S.W.2d at 763 (citing Collins v. State, 322 Ark. 161, 908 S.W.2d 80 (1995)). Detective Armstrong’s testimony coupled with the factual basis set out in the felony information provided sufficient grounds for the circuit court to find that the offenses committed were serious and that violence was employed by the appellant during their commission.

We find that there is ample evidence from the record with which to affirm the circuit court’s denial of transfer. Because the remaining charges against appellant consist of three counts of aggravated robbery, Class Y felony, the most serious level of offense in the State of Arkansas, and because violence was employed via appellant’s use of deadly weapons to cause a threat of death or serious physical injury to the victims, we cannot say that the denial of transfer as to the three counts of aggravated robbery was clearly erroneous.

III. Factual Findings

Lastly, appellant argues that because the circuit court did not make specific findings of fact in its order, it is impossible to tell whether the court considered each of the factors set out in section 9-27-318(e), and because of this impossibility the circuit court erred in denying transfer. Appellant asserts that, due to the omission of factual findings, he has been denied a meaningful review of the circuit court’s decision in violation of his rights under the Due Process Clause of the United States Constitution.

Appellant cites no Arkansas case law in favor of his position and relies solely on Kent v. United States, 383 U.S. 541 (1966) for this argument. Appellee asserts that appellant is precluded from raising this point on appeal because he did not raise this argument below. Appellant concedes that this issue was not ever brought to the attention of the circuit court and was thus not properly preserved below.

From our review of the record provided, it is clear that appellant did not raise this issue in the circuit court, nor did he at any time move the circuit court to detail its reasons for denying his motion to transfer. We have consistently held, and appellant agrees, that even constitutional issues will not be heard for the first time on appeal. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).

IV Conclusion

We affirm the circuit court’s denial of transfer as to the three charges of aggravated robbery, but we reverse as to the three counts of theft of property. We dismiss without prejudice the three charges of theft of property, as proper procedure was not followed in filing the charges and the circuit court was without jurisdiction to hear the charges.

Affirmed in part; reversed and dismissed in part.

ROAF, J., dissents.

DUDLEY, J., not participating.

Andree Layton Roaf, Justice,

dissenting. In 1989, the Arkansas General Assembly enacted Act 273 of 1989, which became known as the Arkansas Juvenile Code of 1989. A declaration of purpose for this legislation is found at Ark. Code Ann. § 9-27-302. It is important in the context of this appeal and warrants our reconsideration:

This subchapter shall be liberally construed to the end that its purposes may be carried out:
(1) To assure that all juveniles brought to the attention of the courts receive the guidance, care and control, preferably in each juvenile’s oum home, which mil best serve the emotional, mental, and physical welfare of the juvenile and the best interests of the state;
(2) To preserve and strengthen the juvenile’s family ties whenever possible, removing him from the custody of his parents only when his welfare or the safety and protection of the public cannot adequately be safeguarded without such removal; and, when the juvenile is removed nearly as possible equivalent to that which should have been given by his parents; and to assure, in all cases in which a juvenile must be permanendy removed from the custody of his parents, that the juvenile be placed in an approved family home and be made a member of the family by adoption;
(3) To protect society more effectively by substituting for retributive punishment, whenever possible, methods of offender rehabilitation and rehabilitative restitution, recognizing that the application of sanctions which are consistent with the seriousness of the offense is appropriate in all cases;
(4) To provide means through which the provisions of this subchapter are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.

Ark. Code Ann. § 9-27-302 (Repl. 1993) (emphasis added).

Since 1991, this court has been called upon numerous times to interpret the provisions of the juvenile code dealing with how we treat youth who are charged with criminal offenses. The General Assembly has in turn had the opportunity on several occasions to react to our holdings. I submit that this court and the General Assembly have so woefully failed to consider a significant portion of the stated purposes underpinning the juvenile code that this language has become meaningless.

We have neither liberally construed the statute to the benefit of the emotional, mental, and physical welfare of the juveniles, nor even for the best interests of the state. We have failed to insure that methods of rehabilitation and restitution are substituted wherever possible, for retributive punishment, and we have surely failed to provide that juveniles are assured fair hearings and that their constitutional and other rights provided by this statute are uniformly recognized and enforced. We share this responsibility equally with our elected state representatives.

Today, we once again affirm a trial court’s refusal to transfer a criminal case involving a juvenile to juvenile court. The trial court’s ruling, and our affirmance, were foregone conclusions because of the prior holdings of this court, because of the weight of stare decisis, and because of the legislature’s failure to revisit this legislation in light of our holdings. Children between the ages of 14 and 17 years are paying the price for our failures. We cannot even take comfort in the notion that the best interests of the state are being served, for many of these juveniles will return to our midst as adults, and the opportunity to use our best efforts to rehabilitate, guide, and care for them will have been lost.

The landmark case which has led us down this path is, of course, Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). In Walker, by a 4-to-3 decision, this court reached several significant holdings which have been repeatedly reavowed and reaffirmed since Walker — that a juvenile movant has the burden of proof when seeking to transfer a case from circuit court to juvenile court — that the trial court need not give equal weight to the three factors that the statute directs it to consider in determining whether to transfer a case — that the prosecutor is not even required to introduce proof on each of the three factors that the trial court is directed to consider — that the criminal information alone can provide a sufficient basis for the denial of a transfer to juvenile court — that a trial court does not have to make findings of fact or provide a rationale for its decision in a juvenile-transfer proceeding.

We have also held that juveniles “ultimately” charged and tried in circuit court are subject to the procedures prescribed for adults, and are not afforded the protections provided by the juvenile code, such as the requirement of parental consent to a waiver of right to counsel. See Ark. Code Ann. § 9-27-317; Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995).

I am not unmindful of the fact that since 1991, the general assembly has twice amended Ark. Code Ann. § 9-27-318, which deals with waiver and transfer to circuit court, each time to the detriment of juvenile defendants. However, they have not seen fit to amend the stated purposes for the juvenile code. I suggest that they do so at the next opportunity. Until then, our decisions and their inaction are in direct conflict with these purposes.

I dissent.


author: DONALD L. Corbin, Justice. TOM GLAZE, Justice,

text:
    Joe McCaskill v. FORT SMITH PUBLIC SCHOOL DISTRICT
    95-874
    921 S.W.2d 945
    Supreme Court of Arkansas
    Opinion delivered May 28, 1996

      Walker Law Firm, by: William J Kropp, III, for appellant.

      Thompson & Llewellyn, by: James Llewellyn, Jr., for appellee.
   DONALD L. Corbin, Justice.

Appellant, Joe McCaskill, appeals the letter order of the Sebastian County Circuit Court granting summary judgment to appellee, Fort Smith Public School District, on appellant’s complaint under The Teacher Fair Dismissal Act of 1983, Ark. Code Ann. §§ 6-17-1501 to -1510 (1987 & Supp. 1995). The interpretation and construction of The Teacher Fair Dismissal Act is at issue in this case. Jurisdiction of this appeal is therefore properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3).

Appellant filed a complaint and request for reinstatement with appellee, relying on his 1989-90 contract for employment as secondary-education teacher and seventh-grade coach. Appellant alleged he had been employed as a teacher and coach with appellee since 1977 when he was “reassigned away” from his coaching responsibilities beginning with his 1990-91 contract. According to the complaint, the reason for his 1990 reassignment from coaching duties was intentionally concealed from him and made without notice to him. Appellant alleged in his complaint that it was not until August 23, 1993, while attending an unrelated school board meeting, that he discovered that the reason for his reassignment from coaching duties in 1990 was disciplinary in nature.

Appellee moved for summary judgment. The trial court granted the motion, ruling that appellant entered into a new contract with appellee for the 1990-91 school year and that, having received the benefits of the new contract, he was estopped from asserting his right to lack of notice from appellee. The trial court also ruled that appellant was precluded from recovering against appellee for his failure to file a prompt claim within seventy-five days after notice of the reassignment as required by section 6-17-1510.

The standard for review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entitled to judgment as a matter of law. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996); Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). This court views all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. However, when the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet that proof with proof showing a genuine issue for trial. Id.

Attached to appellee’s motion for summary judgment was the 1989-90 contract for employment between appellant and appellee at a rate of approximately $30,260.00, showing appellant’s duties as teacher — secondary education and seventh-grade coach. Also attached to appellee’s motion was the contract for the 1990-91 school year at a rate of approximately $27,200.00, showing appellant’s duties as teacher — secondary education. Finally, attached to the motion was a determination from the EEOC concluding there was no evidence that appellant’s February 1990 application for head coach of the ninth-grade football team was denied because of his race.

In his response to appellee’s motion for summary judgment, appellant argued there was a genuine issue of material fact involving the intentional concealment of information which would have led appellant to avail himself of the grievance procedure under The Teacher Fair Dismissal Act. Attached to appellant’s response were two exhibits: the deposition of Dr. Benny Gooden, superintendent of appellee school district, and appellant’s affidavit. In his affidavit, appellant stated that he was not aware that the reason for his reassignment was disciplinary in nature until it was revealed during the August 23, 1993 school board meeting. In his deposition, Dr. Gooden stated that appellant was reassigned from his seventh-grade coaching responsibilities because the then director of athletics was attempting to improve and balance the junior high athletic program. Dr. Gooden explained that, at that point, the athletic director made several reassignments involving several other people. Dr. Gooden stated that he had previously observed appellant in a coaching capacity and witnessed some behavior he considered to be inappropriate. However, Dr. Gooden stated that there was no reason for appellant’s reassignment other than the overall changes to the junior high program and that he was not aware whether appellant was given any reason other than the foregoing for his reassignment. Dr. Gooden admitted signing a letter in which he stated that appellant was reassigned from his coaching responsibilities because the overall junior high program would be better served. Dr. Gooden also stated that appellant filed a grievance about his reassignment in September 1993 and was afforded every step in the policy even though he was technically outside the parameters of the policy. Finally, Dr. Gooden stated that he was aware that if the district was terminating a teacher, the statute requires that the teacher be counseled or confronted with the reason for termination.

Appellee replied to appellant’s response to the motion for summary judgment and attached the deposition of school board member Michael D. Helm. Mr. Helm was a member of the school board in 1989-90 when appellant’s reassignment was made. In his deposition, Mr. Helm discussed the August 23, 1993 school board meeting at which an unrelated discussion between Mr. Helm and appellant turned to appellant’s prior coaching behavior. Mr. Helm specifically recalled witnessing appellant drag a ninety-pound child across the football field by his face-mask. Mr. Helm explained that he brought up the incident during the meeting, although he had never previously mentioned it to appellant, as a reaction to some very pointed accusations about the school board’s integrity. Mr. Helm admitted he overreacted.

For reversal, appellant first contends there is a genuine issue of material fact involving intentional concealment of information which would have led him to avail himself of the grievance procedure. We disagree and conclude no fraudulent concealment occurred. As the moving party, appellee has demonstrated there were no disputed factual issues as to appellant’s 1990-91 contract. While Dr. Gooden indicated he discussed appellant’s behavior with the athletic director, he stated the discussion occurred within the context of the proposal to restructure the overall coaching program. Moreover, Dr. Gooden stated unequivocally that the sole reason for appellant’s reassignment was the overall change to the junior high program. On this record, appellee has therefore met its burden of showing entitlement to judgment as a matter of law. Appellant has not met his burden of rebutting appellee’s proof with proof of a disputed issue of material fact. Appellant has offered no proof whatsoever that the reason for his reassignment was anything other than the restructuring of the overall program. Even Mr. Helm’s deposition confirms this, wherein he admitted having personal knowledge of appellant’s behavior, but denied having knowledge that the behavior had any connection to the reassignment. In short, appellant has not proved anything was fraudulendy concealed from him. His first argument for reversal is without merit.

For his second point for reversal, appellant contends he is entitled to a trial because appellee did not stricdy comply with The Teacher Fair Dismissal Act. Appellant argues that appellee did not provide the requisite notice of the 1990 nonrenewal and carried out the reassignment as a nonrenewal thus avoiding the hearing requirements of the Act. Appellant relies heavily on Western Grove Sch. Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994), wherein this court held that a school district’s actions in reducing a teacher-coach’s compensation and coaching duties amounted to a nonre-newal triggering the Act’s prior notice requirement. In Terry, this court stated that, “what took place was not a reassignment of duties but a nonrenewal of Terry’s contract.” Id. at 321, 885 S.W.2d at 302. This court went on to frame the issue as whether the notice requirements of the Act, specifically section 6-17-1506, had been satisfied. Noting that strict compliance is the standard, this court concluded no prior notice of the nonrenewal had been given to Terry and held the school board’s actions consequently void.

In the present case, appellee distinguishes Terry by pointing out that, unlike Terry, appellant signed a superseding contract after the reassignment or nonrenewal in 1990. This is an accurate distinction. When presented with the reassignment or nonrenewal, Terry refused to sign the contract. See Terry, 318 Ark. 316, 885 S.W.2d 300. However, in the present case, appellant elected to sign the 1990-91 contract which reassigned his coaching duties. Citing section 6-17-1506(a), appellee contends the 1990-91 contract signed by appellant is a superseding contract that relieves appellee of complying with The Teacher Fair Dismissal Act. We agree.

Section 6-17-1506(a) provides as follows:

6-17-1506. Automatic contract renewal Notice of nonrenewal.
(a) Every contract of employment made between a teacher and the board of directors of a school district shall be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the next school year succeeding the date of termination fixed therein, which renewal may be made by an endorsement on the existing contract instrument, unless by May 1 of the contract year, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed or, unless during the period of the contract or within ten (10) days after the end of the school year, the teacher shall deliver or mail by registered mail to the board of directors his or her resignation as a teacher, or unless such contract is superseded by another contract between the parties. [Emphasis added.]

This is the first time this court has been called upon to interpret the superseding contract portion of The Teacher Fair Dismissal Act. The plain language of the Act clearly indicates a legislative intent that the parties be allowed a mechanism to renegotiate an existing contract or to negotiate a new contract. There is no question that, according to Terry, the 1990-91 contract between appellant and appellee would have constituted a nonrenewal of the 1989-90 contract due to the reduction in coaching duties and compensation. However, pursuant to the very terms of section 6-17-1506(a), by appellant’s signing the 1990-91 contract, the 1989-90 contract was superseded and the notice requirements of The Teacher Fair Dismissal Act no longer applied.

Appellant argues in his brief that he did not receive any benefit from signing the new contract, and therefore the doctrine of equitable estoppel cannot be applied to him. That allegation is entirely without merit, primarily because we are not concerned with equitable estoppel; rather, we are concerned with the application of The Teacher Fair Dismissal Act. Appellant simply cannot sign a superseding contract and then claim the protection of the notice and renewal requirements of the Act. Moreover, he cannot sign a superseding contract and then wait well past the Act’s limitation period for contesting the nonrenewal. Mis second argument for reversal is without merit.

The order granting summary judgment to appellee is affirmed.

ROAF, J., concurs.

Glaze, J., dissents.

JESSON, C.J., and DUDLEY, J., not participating.

TOM GLAZE, Justice,

dissenting. I dissent. This Teacher Fair Dismissal case should not have been decided on a motion for summary judgment because a genuine issue of material fact exists. The issue is whether the school district concealed the true reasons for reassigning Joe McCaskill on May 29, 1990, when the district removed him from his coaching duties. The evidence submitted below reflects the district may (or may not) have done so, depending upon which version of facts given by Superintendent Benny Gooden you choose to believe.

Indisputably, McCaskill was advised of a “change in assignment” to teach computer classes. On reassignment, his salary was reduced from $29,731 to $27,200. Gooden stated that no written reason was given McCaskill concerning his reassignment, and he had no knowledge of anyone discussing with McCaskill the fact McCaskill’s behavior, while a coach, played a role in the reassignment.

Over three years later, August 23, 1993, McCaskill appeared at a school board meeting involving an unrelated matter when a board member, Michael Helm, openly revealed McCaskill had been removed from his coaching responsibilities because of the abusive behavior he had shown towards school children. McCaskill said that this was the first time he had been informed of the reason for his earlier reassignment. He subsequently brought this suit against the school district, alleging the district had violated the Teacher Fair Dismissal Act by violating Ark. Code Ann. § 6-17-1504(c) (Repl. 1994), which provides as follows:

(c) Whenever a superintendent or other school administrator charged with the supervision of a teacher believes or has reason to believe that a teacher is having difficulties or problems meeting the expectations of the district or its administration and the administrator believes or has reason to believe the problems could lead to termination or nonrenewal of contract, the administrator shall bring the problems and difficulties to the attention of the teacher involved in writing and shall document the efforts which have been undertaken to assist the teacher to correct whatever appears to be the cause for potential termination or nonrenewal. (Emphasis added.)

The district argues it did not violate § 6-17-1504(c) because the proof shows McCaskill’s behavior was not the reason for his reassignment. The evidence is very much in conflict on this issue. Besides Helm’s statement already mentioned, Gooden’s testimony presented proof that McCaskifl’s alleged abusive behavior played a role in his reassignment.

For example, Gooden said that his decision to approve reassignment of McCaskill was based upon the recommendations of the director of athletics, Bill Stancil. Gooden stated that he had attended a lot of athletic events and had observed some things McCaskill had done which Gooden thought were inappropriate. He further said his personal observations verified what Stancil “was speaking about.” Gooden related that when talking with Stancil about reassigning a coach, Gooden’s normal response would be “if there are behaviors that you (Stancil) are not pleased with, can we change those behaviors?” Stancil’s response was that you are not going to change those behaviors. Finally, Gooden testified that “[I]t is correct that I had a discussion with Bill Stancil about Joe McCas-kill’s behavior in the context of reassigning him.”

In contrast to the above evidence, Gooden also offered testimony to the effect that McCaskill’s behavior had nothing to do with his reassignment. The district relies on Gooden’s conflicting testimony when arguing it had no duty to comply with § 6-17-1504(c), requiring it to bring those behavioral problems and difficulties in writing to McCaskill’s attention. Instead, the district stood mute in this regard and chose to treat McCaskill’s removal merely as a reassignment. In making this choice, the district claimed it had no duty to comply with the requirements of the Teacher Fair Dismissal Act when contract terminations or nonrenewals are involved.

In sum, whether the district intended to conceal its true reason for removing McCaskill from his coaching duties is a fact question, and, in view of the record before this court now, that question should be decided by a jury. Summary judgment simply is not appropriate in these circumstances.

Finally, the trial court concluded that McCaskill was estopped from asserting his reliance on § 6-17-1504(c) and other statutory notice requirements because he entered a new contract with the district for the 1990-91 year. Of course, before estoppel applies, the party to be estopped must know the facts. Foote’s Dixie Dandy v. McHenry, Adm’r, 270 Ark. 816, 607 S.W.2d 323 (1980). Here, if a jury should decide the district withheld the true reason from McCaskill as to why he was removed and his contract was not renewed, the doctrine of estoppel would be inapplicable because McCaskill was unaware of his termination and the reasons therefore. If he had had this knowledge, he could have availed himself of the remedies afforded under the Teacher Fair Dismissal Act.


author: ROBERT L. Brown, Justice. Tom Glaze, Justice,

text:
    HARDY CONSTRUCTION COMPANY, Inc. v. ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT
    96-67
    922 S.W.2d 705
    Supreme Court of Arkansas
    Opinion delivered May 28, 1996
    [Petition for rehearing denied July 1, 1996.]

      Rose Law Firm, by: John A. Davis III, for appellant.

      Robert L. Wilson, Chief Counsel, Mark J. Whitmore, and
      Lawrence W. Jackson, for appellee.

      Dudley, J., not participating.

   ROBERT L. Brown, Justice.

Appellant Hardy Construction Company, Inc., appeals the chancery court’s dismissal of its petition for the appointment of an arbitrator and raises four points for reversal: (1) the chancery court was required by statute to appoint an arbitrator; (2) the arbitrators decide procedural matters, not the courts; (3) the chancery court has jurisdiction to enforce the arbitration clauses at issue; and (4) sovereign immunity is no defense to the petition by Hardy Construction. We agree with Hardy Construction that the chancery court had subject-matter jurisdiction, but we affirm the decision of that court because of the insufficiency of the abstract.

In 1987, Hardy Construction entered into a contract with appellee Arkansas State Highway and Transportation Department to construct a project designated as Missouri Street overpass in West Memphis. In 1989, the same parties contracted for Hardy Construction to construct a second project, also in West Memphis, designated as the West Memphis Interchange at Interstate Highway 55. Both contracts provided that any disputes would be setded by arbitration.

The two contracts provided with respect to arbitration that each party would appoint a member to serve on the arbitration panel. Those two arbitrators would then select a third member. The provision further states:

If such arbitrators are unable to agree upon the third member of the Board of Arbitration within ten (10) calendar days after their appointment, application may be made by either party to the Chancery Court of Pulaski County within ten (10) calendar days for such purpose, and the court shall, on or before ten (10) calendar days thereafter[,] appoint a disinterested party to serve as the third member of said Board of Arbitration.

The contracts further provided that prefatory to arbitration any disputes must be submitted to the resident engineer and, if unsuccessful, then appealed to the Chief Engineer of the Highway Department for final decision. Within 20 days of an unfavorable decision, a party could request arbitration. Thus, according to the contracts, the party requesting arbitration first had to exhaust all remedies within the Highway Department.

Disputes arose over the final estimates of compensation due Hardy Construction on both projects. On June 21, 1995, Hardy Construction gave notice of arbitration and designated its arbitrator for the arbitration process. On August 4, 1995, Hardy Construction filed its Petition for Appointment of Arbitrator. In that petition, Hardy Construction asserted that the Highway Department had refused to select its arbitrator and was frustrating the arbitration process under both contracts. Hardy Construction further prayed that the chancery court appoint the third arbitrator in accordance with the contracts so as to move the process along.

On August 28, 1995, the Highway Department moved to dismiss the petition in separate motions for each job. (Both motions are substantially the same and are treated as one for purposes of this opinion.) The Department urged in its motion that the petition failed to show that the chancery court had jurisdiction over the subject matter and further that Hardy Construction had failed to allege that it had exhausted administrative remedies under the contracts by submitting the dispute to the Department’s engineers. Finally, the Department cited sovereign immunity as grounds for dismissal. On September 5, 1995, Hardy Construction amended its petition to add a paragraph to state “that all conditions precedent have been performed ...” On October 16, 1995, the chancery court concluded in part:

Plaintiff has appointed an arbitrator; however, the defendant has not appointed an arbitrator, because it contends plaintiff has not followed the administrative procedures under the contract. Therefore, there is no situation where the two arbitrators appointed by the parties are unable to agree on a third arbitrator, and, under the terms of the contract, that is the only provision for court intervention.
Plaintiff amended its petition on September 5, 1995; however, it still does not request any relief in this court that is cognizable in equity. It is simply trying to get this court to appoint a third arbitrator, and the provisions for that contingency have not occurred. Since plaintiff is asking this court to perform a duty that is not provided for in the contract, it is attempting to modify the terms of the arbitration provisions. At the hearing, plaintiff contended that it was asking for specific performance; however, its pleadings have not been amended, nor have any additional parties been named. It is axiomatic that the State cannot “be made a defendant in any of her courts.” Article 5, Section 20, Constitution of Arkansas.

The chancery court ordered that the petition be dismissed under Ark. R. Civ. P. 12(b)(6).

I. Jurisdiction

The issue of subject-matter jurisdiction raised by the Highway Department is paramount and must be addressed first. Under the Uniform Arbitration Act, codified at Ark. Code Ann. § 16-108-201 et seq. (1987), the following section is found:

The term “court” means any circuit or chancery court of this state. The making of an agreement described in § 16-108-201 providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under this subchapter and to enter judgment on an award thereunder.

Ark. Code Ann. § 16-108-217 (1987). The contract provision set forth above in this opinion alludes to jurisdiction in Pulaski County Chancery Court. While it is true that the parties may by agreement consent to personal jurisdiction in a given court, subject-matter jurisdiction cannot be conferred merely by agreement of the parties. See, eg., Flemens v. Harris, 319 Ark. 659, 893 S.W.2d 783 (1995); Arkansas Dep’t of Human Servs. v. Estate of Hogan, 314 Ark. 19, 858 S.W.2d 105 (1993); Nelms v. Morgan Portable Bldg. Corp., 305 Ark. 284, 808 S.W.2d 314 (1991). Thus, if subject-matter jurisdiction is appropriate, the parties may agree on the appropriate court in which to resolve disputes.

Hardy Construction argues that subject-matter jurisdiction is appropriate in chancery court because the relief requested is akin to a mandatory injunction to enforce the contract or, alternatively, to specific performance of the contract provision relating to court appointment of an arbitrator. Specific performance is an equitable remedy cognizable only in equity. Arkansas State Employees Ins. Advisory Comm. v. Estate of Manning, 316 Ark. 143, 870 S.W.2d 748 (1994). Although there is no case in Arkansas that specifically addresses whether the chancery court has jurisdiction to act to enforce an arbitration agreement pursuant to statutory authority, foreign jurisdictions have treated these actions as ones for specific performance of a contract to arbitrate. See Annapolis Professional Firefighters Local 1926, IAFF, AFL-CIO v. City of Annapolis, 100 Md. App. 714, 642 A2d 889 (1994) (dictum); Trubowitch v. Riverbank Canning Co., 30 Cal. 2d 335, 182 P.2d 182 (1947); see also 4 Am. Jur. 2d Alternative Dispute Resolution § 113, p. 158 (1995).

For example, in Annapolis Professional Firefighters Local 1926, IAFF, AFL-CIO, supra, the Maryland Court of Special Appeals addressed by way of dictum the power of a court of equity to appoint an arbitrator under the Uniform Arbitration Act when the agreed method failed or otherwise could not be followed:

Although this power, under the Act, is a statutory one, it is not foreign to or inconsistent with the general equitable jurisdiction of a circuit court. Equity courts have long had the power, for example, when specifically enforcing agreements, to appoint trustees to carry out their decrees when a party proves recalcitrant or when otherwise necessary to implement the agreement.

Annapolis Firefighters, 642 A.2d at 895.

To support its argument that the chancery court did not have subject-matter jurisdiction, the Highway Department directs our attention to Bates v. Bates, 303 Ark. 89, 793 S.W.2d 788 (1990). In that case, this court reiterated that the General Assembly is without authority to expand the jurisdiction of chancery courts beyond that granted by the 1874 Arkansas Constitution. Bates, 303 Ark. at 91, 793 S.W.2d at 790. In Bates, we held specifically that the General Assembly could not expand the chancery court’s jurisdiction to include areas of criminal law. The Bates case, though, is distinguishable from Annapolis Firefighters and the instant case because the latter situations add nothing to a court of equity’s traditional responsibilities to specifically enforce agreements to arbitrate under certain circumstances.

Though Arkansas does not have a precise case in point, an analogous situation arose in Arkansas Cotton Growers Coop. Ass’n v. Brown, 168 Ark. 504, 270 S.W. 946 (1925). In Brown, we interpreted the Cooperative Marketing Act, including a provision of the Act which gave the Association the right to seek an injunction in equity against a member “to prevent the further breach of the contract and to a decree of specific performance thereof.” see 1921 Ark. Acts 116, § 17, codified at Ark. Code Ann. § 2-2-419 (a)(1) (Repl. 1996). We stated in Brown:

It is contended that the chancery court does not possess jurisdiction to prevent a breach by injunction and thereby compel specific performance of the contract. The statute creating the association contains an express provision for such relief, but it is contended that this statute constitutes an attempt to enlarge the jurisdiction of the court, which is beyond the power of the lawmakers. We do not agree to this view, for it has always been within the jurisdiction of courts of equity to grant relief where legal remedies are inadequate, and it is evident that, by reason of the peculiarity of the cooperative marketing plan, any legal remedy would be wholly inadequate. The only remedy at law would be a suit to recover damages, but this remedy is inadequate, for the reason that the recovery of damages for a failure to deliver cotton would not repair the injury done if a substantial number of the members should refuse to deliver cotton.

168 Ark. at 521-522, 270 S.W. at 953.

It is clear that the chancery court had jurisdiction to enforce the contracts in this case pursuant to the Uniform Arbitration Act.

II. Abstract

We turn then to a consideration of the abstract presented by Hardy Construction and whether it presents us with enough information to enable us to decide the points raised on appeal. We conclude that it does not.

Hardy Construction’s first point is that the Uniform Arbitration Act, as codified in part at § 16-108-203, authorizes a party to petition the court to appoint one or more arbitrators “if the agreed method fails or for any reason cannot be followed.” Here, according to Hardy Construction, that is exactly what transpired because the agreed method has failed. Our problem with this argument is that there is nothing in the abstract to indicate § 16-108-203 was argued to the chancery court or that a ruling was obtained with respect to that argument. See Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). The response by Hardy Construction to the motion to dismiss is not abstracted, and there is nothing in the chancery court’s order otherwise reflecting that § 16-108-203 was considered by the chancery court.

This court has been adamant in refusing to consider arguments raised for the first time on appeal, where that argument has not been first presented to the trial court for resolution. See, e.g., Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996); Thompson v. Perkins, 322 Ark. 720, 911 S.W.2d 582 (1995). While the issue or argument may be contained in a pleading or brief in the record, we have said many times that there are seven justices of the Supreme Court and one record, and we will not be placed in the position of having seven justices scour one record for pertinent information. Kearney v. Committee on Prof. Conduct, 320 Ark. 581, 897 S.W.2d 573 (1995); Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994). We, accordingly, affirm due to lack of sufficient information in the appellant’s abstract to enable us to decide this point. See Ark. Sup. Ct. R. 4-2 (b)(2).

The same holds true for the remaining points raised by Hardy Construction. Its abstract does not reveal that the issue of procedural arbitrability and whether that is a matter for the arbitration panel to decide or the courts was ever brought to the chancery court’s attention. Nor does the abstract reveal whether Hardy Construction’s arguments in opposition to the doctrine of sovereign immunity were brought to the attention of the chancery court. The chancery court did proclaim in its order that the State cannot “be made a defendant in any of her courts,” but the court’s order, as abstracted, does not evidence that Hardy Construction raised the same arguments in opposition to the sovereign immunity doctrine at the trial court level that it now makes on appeal. What is clear from the chancery court’s order is that it made its decision based on the failure of the two contracts to contemplate an appointment of a third arbitrator by the chancery court under the circumstances presented by Hardy Construction. The chancery court further appears to have decided that the Highway Department cannot be estopped from raising a sovereign immunity defense when it did not agree to a judicial appointment of an arbitrator under these conditions. Cf. Foote’s Dixie Dandy v. McHenry, 270 Ark. 816, 607 S.W.2d 623 (1980).

Hardy Construction contends that there was no need to abstract the hearing before the chancery court or its response to the Highway Department’s motion to dismiss because the arguments it made are merely duplicative of those made in its brief on appeal. But showing this court in the appellant’s abstract that an argument has been raised and considered by the trial court is an absolute prerequisite to our review on appeal. Because the abstract is deficient in that regard, we affirm the chancery court’s order. See Ark. Sup. Ct. R. 4-2(b)(2).

Affirmed.

Dudley, J., not participating.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I concur. While I agree to affirm, I disagree with the majority court’s assertion that appellant’s abstract is so deficient the court cannot decide whether the chancery court erred in failing to appoint an arbitrator as required under Ark. Code Ann. § § 16-108-201 — 224 (1987 and Supp. 1995). The majority opinion states that there is nothing in the abstract to indicate § 16-108-203 was argued to the chancery court or that a ruling was obtained with respect to that argument. Not true.

I first point out that the chancellor’s order, as abstracted, dismissed the appellant’s action and set out findings reflecting the appellant had filed suit asking the court to appoint an arbitrator as provided under the terms of the parties’ contract. The chancellor further found the appellant was relying on § 16-108-201, et seq. She stated in her order that appellant’s action was to enforce the parties’ contract which provided for arbitration, but that certain contingencies had to occur before the court appointed a third arbitrator. She ruled those contingencies had not occurred.

The abstract further reflects that the appellee contended below that, under the parties’ agreement, the party (appellant) seeking arbitration must first exhaust all administrative remedies by first submitting the parties’ dispute for resolution to appellee’s Resident Engineer, and if not resolved by that engineer, to appellee’s Chief Engineer. Because appellant failed to exhaust its administrative remedies, appellee refused to choose an arbitrator. The chancellor agreed that, under the terms of the parties’ contract, she could not intervene to appoint a third arbitrator because the contingencies or conditions of the contract had not been met.

In sum, appellant’s abstracting of its petition with exhibits, appellee’s motion to dismiss, and the court’s order presents the essential parts of the record to determine if the chancellor was correct in refusing to appoint an arbitrator under the terms of the parties’ arbitration agreement. From the abstracted record, the chancellor was correct because appellant had not exhausted its remedies, and, therefore, under contract terms appellee was not required to appoint an arbitrator. Consequently, because these contractual prerequisites had not been met, the trial court correctly decided it could not intervene to appoint a third arbitrator. The trial court should be affirmed, but only after reaching the merits of all issues presented on appeal.

       Circuit courts in Maryland sit as courts of law and courts of equity. Md. Courts & Judicial Proceedings Code Ann. § 1-501 (Repl. 1995).

       Section 16-108-203 provides as follows:
      If the arbitration agreement provides a method of appointment of arbitrators, this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails or is unable to act and his successor has not been duly appointed, the court on application of a party shall appoint one (1) or more arbitrators. An arbitrator so appointed has all the powers of one specifically named in the agreement. (Emphasis added.)


author: ROBERT L. Brown, Justice.

text:
    Casey MEADOWS v. STATE of Arkansas
    CR 95-1081
    922 S.W.2d 341
    Supreme Court of Arkansas
    Opinion delivered May 28, 1996

      Robert E. Irwin, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

This is the second appeal by appellant Casey Meadows. On February 22, 1993, Meadows entered a plea of nolo contendere to the charge of first-degree battery, which stemmed from his shooting Freddy Boozer, who was left paralyzed from the waist down. The trial court initially pronounced a sentence of 20 years, the execution of which was suspended conditioned upon Meadows (1) living a law-abiding life; (2) paying $200 per month toward the victim’s medical bills; (3) reporting monthly to a probation officer and paying $15 per month as a supervision fee; and (4) paying court costs in the sum of $78.25. In Meadows v. State, 320 Ark. 686, 899 S.W.2d 72 (1995) (.Meadows I), we reversed the sentence because it was illegal in that the trial court had no authority to suspend the execution of the sentence as opposed to the imposition of the sentence. We remanded the case for resentencing.

On June 27, 1995, the trial court conducted a resentencing hearing. At the outset of the hearing, this record was made:

BY THE COURT: It’s my understanding of the opinion, and I agree with what the Court said, that you don’t suspend the execution of sentence, and I wasn’t aware that had been done. So this as I understand it will be a re-sentencing.
BY DEFENSE COUNSEL: That’s exactly what it is, re-sentencing.
BY THE COURT: As though it never happened.
BY DEFENSE COUNSEL: That’s exactly —
BY THE COURT: And, at this point in time I have the same range of punishment available to me that I had back then; and the question of restitution, if there’s going to be a question about that, we can hear that.
BY DEFENSE COUNSEL: That’s exactly right.
BY THE COURT: As far as — this Court is not bound by any idea that I can suspend the imposition of sentence.
BY DEFENSE COUNSEL: I understand you’re not bound by anything.
BY THE COURT: And, if the evidence, whatever I hear in this hearing, convinces this Court that this man needs to go to prison, he’s got a class “B” felony and there’s twenty years available for him to go to the Department of Correction or a fine or any combination of the things that I have available.
BY DEFENSE COUNSEL: I understand all that, Your Honor.

The trial court then proceeded to hear testimony from the victim, Freddy Boozer, about the extent of his injuries and his medical expenses, which exceeded $300,000. Following that, Mike Briscoe, Meadows’s probation officer, testified. At the beginning of Briscoe’s testimony, this colloquy occurred among the trial court, defense counsel, and the prosecutor:

BY DEFENSE COUNSEL: Now, I’m going to object, Your Honor. That hasn’t go (sic) anything to do with the re-sentencing.
BY THE PROSECUTOR: Sure it does, Judge. It shows his compliance with —
BY THE COURT: Well, if I’m going to re-sentence it would be as though there had never been a sentence originally. I’d have the same range of punishment.
BY DEFENSE COUNSEL: Yes, sir.
BY THE COURT: I’d have the pre-sentence report and I’d have comments from people that would give what he has been doing since he was back in this Court a year or two ago. I think that would be beneficial to the Court to decide what to do with him. I don’t think I’m frozen in time to what happened back at that point in time.
BY DEFENSE COUNSEL: Well, —
BY THE COURT: How am I going to know how to sentence him if I don’t have some input from people?
BY DEFENSE COUNSEL: AH right. I think I agree with you.
BY THE COURT: Go ahead.

Briscoe next testified that after December 1993, Meadows’s monthly reports to him became sporadic and that twelve reports were not received at all. Briscoe added that Meadows moved away once without telling him and failed to pay supervision fees for approximately five months preceding the sentencing hearing. Finally, Meadows testified that he now was required to pay $40 a week in child support due to his divorce and that because of living expenses, remarriage, and unavailable construction work, he was unable to make the $200-per-month payments. He offered no explanation of why he had not made the probation reports.

Following a second hearing on July 11, 1995, in which a presentence report was offered, the trial court made the observation that the presumptive sentence for first-degree battery under the new sentencing grid was ten years. See Ark. Code Ann. § 16-90-801 to 804 (Supp. 1995). The trial court ordered a sentence of five years imprisonment with an additional ten years suspended, conditioned upon Meadows leading a law-abiding life, paying restitution as previously ordered by the court, reporting to a probation officer, and paying a $15 per month supervision fee.

Meadows urges in this appeal that the trial court should have merely corrected the original judgment from a suspension of the execution of the sentence to a suspension of the imposition of the sentence. We disagree for several reasons. We initially observe that defense counsel acknowledged at the commencement of the resentencing hearing and during Briscoe’s testimony that the trial court could sentence Meadows to a prison term based on the evidence at the hearing. It is well-settled that a party cannot agree with a ruling by the trial court and then attack it on appeal. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995); Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992).

But, in addition, this court has stated the law regarding correction of a sentence by the trial court when part of a sentence is erroneous:

However, when there is an error in one portion of an individual sentence, as here, the courts view the sentence as an indivisible totality and if modification is required, the court may on resentencing impose any sentence it could have lawfully imposed at the outset. People v. Wilson, 315 N.W.2d 423 (Misc. App. 1981); Herring v. State, 411 So.2d 966 (Fla. 1982); People v. Gillette, 304 N.Y.S.2d 296 (1969).

Campbell v. State, 288 Ark. 213, 217, 703 S.W.2d 855, 857-858 (1986).

Ordinarily, once a valid sentence has been placed in execution, the trial court has no authority to change it. Hodge v. State, 320 Ark. 31, 894 S.W.2d 927 (1995); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987). But with respect to an illegal sentence, the trial court has the authority to correct it even after it has been placed in execution. Hodge v. State, supra; Chenowith v. State, 26 Ark. App. 256, 763 S.W.2d 103 (1989). In Chenowith, eight sentences were originally imposed to be served concurrently, but each sentence exceeded the maximum permissible range of punishment. Thus, the sentences were invalid. Because modification of the sentences was required, the Court of Appeals held that the trial court had the authority on resentencing to impose any sentence it could have imposed at the outset.

The same holds true in the instant case. We remanded the case in Meadows I for resentencing and not for the limited purpose of changing the language of the suspension from “execution” to “imposition.” We remarked in Meadows I that our cases held that resentencing was appropriate for an illegal sentence, even after the sentence had been partially executed. Furthermore, at the resentencing hearing, Meadows’s counsel acknowledged that the trial court could consider all punishments which the court originally had available to it. The trial court then took note of Meadows’s failure to comply with the conditions of the first sentence, which led to a sentence of a term of years. For all of these reasons, we find no fault in the trial court’s assessed punishment.

The State raises a final point. According to the State, the new judgment prescribes a prison term and then a ten-year suspension conditioned on restitution, law-abiding conduct, and his reporting to a probation officer and paying a supervision fee. The State contends that this smacks of probation rather than a suspended sentence and that this court has stated that a period of probation may not follow a term of imprisonment. See Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). We decline to address the issue of whether the State’s interpretation of the Bangs decision is correct because Meadows did not raise the argument to the trial court and has not raised it on appeal. See Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995). Of course, Meadows has the option of challenging any portion of his sentence which he contests as illegal in a post-conviction proceeding. Id.

Affirmed.

Dudley, J., not participating.

       The 1993 judgment is not contained in the record but is described in Meadows v. State, 320 Ark. 686, 899 S.W.2d 72 (1995), and in the testimony of Mike Briscoe, probation officer, at the resentencing hearing.

       The trial court acknowledged, as we do, that Meadows’s offense occurred before the effective date of Act 532 of 1993, which established the sentencing guidelines, and was, therefore, not controlling.