text:
    Valerie SALLEY v. CENTRAL ARKANSAS TRANSIT AUTHORITY
    96-630
    934 S.W.2d 510
    Supreme Court of Arkansas
    Opinion delivered December 9, 1996

      Mays & Crutcher, P.A., by: Richard L. Mays, for appellant.

      J. Chris Bradley, for appellee.
   Tom Glaze, Justice.

Appellant Valerie Salley was a passenger in appellee Central Arkansas Transit Authority’s (CAT’s) bus when it collided with a car operated by an uninsured motorist. Salley subsequently filed suit against CAT, alleging that she had sustained injuries resulting from the collision and that CAT, as a common carrier, had a duty to carry uninsured motorist coverage or to be self-insured. CAT filed a motion for summary judgment, which the trial court granted, holding CAT is a governmental public transit system, and as such, the General Assembly specifically delimited its liability for negligence. Accordingly, the trial court held CAT was not a common carrier that had a duty to carry uninsured motorist coverage. Salley brings this appeal from the trial court’s summary judgment decision.

Salley, on appeal, restates her argument below that CAT is a public corporation established by Pulaski County and the municipalities of Little Rock, North Little Rock, Sherwood, Cammack Village, and Maumelle, and as a common carrier, CAT is statutorily required to carry uninsured motorist coverage or to self-insure its vehicles for collisions with uninsured motorists. In particular, Salley argues that CAT is a common carrier as that term is defined in Ark. Code Ann. § 23-16-301 (a) (1987). That statute provides as follows:

As used in this subchapter, unless the context otherwise requires, “common carrier,” means any person, firm, or corporation which undertakes, either directly or indirecdy, to transport members of the general public as passengers for compensation whether over regular or irregular routes.

Salley further submits that, in fitting the definition of common carrier, CAT, under Ark. Code Ann. § 23-16-302 (1987), is required to carry uninsured motorist liability insurance or become a self-insurer for the protection of its passengers and operators who are legally entitled to recover damages from uninsured motorists. To determine whether the General Assembly intended §§ 23-16-301 — 302 to include public transit systems requires our analysis of other relevant statutes as well. As this court has said on many prior occasions, a universal rule in construing statutes, and a settled maxim of the common law, is that all acts passed upon the same subject are in pari materia, and must be taken and construed together and made to stand if capable of being reconciled. Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1980).

The relevant historical chronology begins with Act 347 of 1953 [Ark. Code Ann. §§ 27-19-101 et seq.] which established Arkansas’s Motor Vehicle Safety Responsibility laws. Pertinent to the issue before us, Act 347 provided for suspension and security requirements for drivers of vehicles involved in an accident within the state, but it made those requirements inapplicable to drivers or owners of vehicles who have a liability policy or bond or who are self-insured.

The next relevant law bearing on the immunity issue before us concerns Act 165 of 1969 [now Ark. Code Ann. §§ 21-9-301— 303 (Repl. 1996)] which declared all state subdivisions, including counties and municipal corporations, to be immune from tort liability. The Act, however, required all political subdivisions to carry liability insurance on all their motor vehicles. And following Act 165’s enactment, the General Assembly passed Act 893 of 1975 [now Ark. Code Ann. §§ 23-16-301 — 302 (1987)]. These are the statutory provisions Salley largely relies upon in her appeal. As previously mentioned, it was Act 893 that defined “common carrier” and required süch carriers to carry uninsured motorists liability insurance.

Finally, the next major legislation we need to consider is that which created the Public Transit System, Act 424 of 1981 [now Ark.Code Ann. §§ 14-334-101 et seq. (1987)]. Act 424 is the authority under which CAT was established. It generally defines a public transit system as any transit system created or licensed by a governmental agency or managed by a private management firm under contract to the governmental agency owner. Most important to our quest for statutory meaning on the immunity from suit-in-tort issue before us, section 4 of Act 424 provided the following:

(a) Each authority, when created, and the members thereof, shall constitute a public corporation and, as such, shall have perpetual succession, may contract and be contracted with, may sue and be sued, and may have and use a common seal.
(b) The exercise of the powers and performance of duties provided for in this chapter by each authority are declared to be public and governmental functions, exercised for a public purpose and matters of public necessity, conferring upon each authority governmental immunity from suit in tort. § 14-334-104.

From a fair reading of the foregoing enactments, we first must presume that, when it passed the 1981 Public Transit System law, Act 424, the General Assembly was well aware of prior Act 347, which created the Motor Vehicle Safety Responsibility law and Act 893, which required Uninsured Motorist Liability Insurance for common carriers in the amounts prescribed in section 27 of Act 347. See Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986); see also Ark. Code Ann. §§ 23-16-302 (Supp. 1995) and 27-19-605 (Repl. 1994). It is also fair to say that, because common carriers must obtain liability insurance prescribed under Acts 347 and 893, the General Assembly intended that public-transit systems, like CAT, should come within those same intendments, if the systems come within Arkansas’s definition of common carrier.

We initially note that we find no language in Act 424 that exempts a public transit system from the motor vehicle and liability insurance requirements in Acts 347 and 893. To the contrary, we find that section 12 of Act 347, as amended by Act 590, § 3 of 1987 [codified as Ark. Code Ann. § 27-19-212 (Repl. 1994)] enlarged the term “person” to include “public transit authorities.” In fact, the main purpose of Act 590 was to enable any political subdivision, including counties, municipalities, and public transit authorities, to qualify as a self-insurer. In sum, our reading and construction of the relevant acts, set out hereinabove, convinces us that the General Assembly fully intended to provide public transit systems with immunity from suit in tort, but like other political subdivisions or entities, they must obtain prescribed liability insurance or be self-insured.

In conclusion, we acknowledge CAT’s argument that it is not a common carrier as defined in § 23-16-301 and therefore it is not subject to the requirements of liability under § 23-16-302 and Act 347, § 27, now Ark. Code Ann. § 27-19-605. We disagree. CAT conceded below that, as an entity of a municipal corporation, it is a “person, firm, or corporation” as those terms are employed defining “common carrier” in § 23-16-301(a). However, CAT now retreats from that concession and argues the word “corporation” does not mean or include a municipality. CAT’s earlier argument was correct. As we pointed out above, Act 590 (§ 27-19-212) defines the term “person” to include “public transit authorities,” and considering the connecting and relevant subject matters, we are unaware of any compelling reason why the term person in § 23-16-301(a) should not be read to include public transit systems as well. CAT also submits that it fails to come within the definition because it is not a common carrier for compensation. Despite CAT’s evidence showing its customers’ fares compose only 21% of its operating income, the fact remains CAT charges and receives compensation for the services it renders to the public. For the reasons stated, we hold CAT comes within the statutory definition of common carrier.

Accordingly, we reverse the grant of summary judgment and remand for further proceedings.

        See § 27-19-604 for other exceptions established under the Act.

       Act 542 of 1991 and 292 of 1993 provided all political subdivisions shall be immune from liability and from suit for damages except to the extent that they are covered by liability insurance.

       The term “person” in § 27-19-212 has been enlarged to include those following italicized governmental entities. “Person” means every natural person, firm, copartnership, association, corporation, or any political subdivision of the State of Arkansas, individually or collectively, which shall include all counties, municipal corporations, public transit authorities, school districts, special improvement districts, and any other political subdivision.


source: Caselaw Access Project

author: DONALD L. Corbin, Justice.

license: Public Domain

text:
    Elizabeth GRANQUIST v. Scott John RANDOLPH
    96-854
    934 S.W.2d 224
    Supreme Court of Arkansas
    Opinion delivered December 9, 1996

      Sanford & Stiritz, by: Jon R. Sanford, for appellant.

      William Douglass Skelton, for appellee.
   DONALD L. Corbin, Justice.

Appellant Elizabeth Granquist appeals the order of the Pope County Circuit Court setting aside a default judgment previously entered on Appellant’s complaint for breach of a separation agreement between her and Appellee Scott John Randolph. For reversal, Appellant contends the order denies her the right to a jury trial on her claim for breach of contract. The court of appeals certified this case to us as one involving the construction of the Arkansas Constitution. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(l), (d)(1). We find no merit to Appellant’s argument on the record presented and affirm.

Appellant filed a complaint in circuit court on August 19, 1994, alleging that Appellee had breached a written agreement to pay her $200.00 per month child support for their minor child, Brandon Dane Randolph, until the child reached age twenty-one. The agreement, which is captioned “SEPARATION AGREEMENT” and dated November 16, 1983, was attached to the complaint as an exhibit. According to the complaint, Appellant was granted judgment against Appellee for all sums due under the Separation Agreement through December 19, 1988, but Appellee had failed to keep the Separation Agreement since then and now owes $13,680.00 in child-support arrearages. On March 7, 1995, the circuit court entered a default judgment for Appellant in the amount of $13,680.00 with prejudgment and postjudgment interest plus costs and attorney’s fees.

Appellee’s wages were garnished pursuant to a writ of garnishment. Appellee moved for the circuit court to set aside the default judgment on the ground that the circuit court lacked subject-matter jurisdiction of child-support matters. Appellant responded to the motion with a contention that the circuit court had jurisdiction of her claim for child support because Appellee’s obligation arose independendy from a contract. The circuit court conducted a hearing on Appellee’s motion to set aside the default judgment and ruled from the bench that the motion would be denied.

Appellee then filed a motion to reconsider his motion to set aside the default judgment. By letter ruling, the circuit court found that although a claim for breach of contract was traditionally a matter of circuit-court jurisdiction, it did not have jurisdiction of this case pursuant to Ark. Code Ann. § 9-14-105(a) (Repl. 1993) and Boren v. Boren, 318 Ark. 378, 885 S.W.2d 852 (1994).

Appellant then filed a motion for the circuit court to reconsider its decision and alleged a violation of her right to a jury trial under both state and federal constitutions. The trial court entered an order denying Appellant’s motion to reconsider. Finally, the circuit court entered an order setting aside the default judgment, and this appeal followed.

On appeal, Appellant contends the trial court’s setting aside of the default judgment deprives her of a right to jury trial as provided in Article 3, Section 2, of the United States Constitution and Article 2, Section 7, of the Arkansas Constitution. We presume that it is the Seventh Amendment that Appellant intended to rely on as the source of her federal right to a jury trial since the provision cited by Appellant, Article 3, Section 2, deals with criminal trials. Appellant argues that these constitutional rights “clearly take precedence over and should be found to overrule legislation and state case law inconsistent therewith.” Appellant contends that section 9-14-105(a) and Boren are unconstitutional as applied in her case. We do not agree.

In concluding that it did not have subject-matter jurisdiction of this case, the circuit court relied on section 9-14-105(a), which provides that “[t]he chancery courts in the several counties in this state shall have exclusive jurisdiction in all civil cases and matters relating to the support of a minor child or support owed to a person eighteen (18) or older which accrued during that person’s minority.” The circuit court also relied on Boren, 318 Ark. 378, 379, 885 S.W.2d 852, 852, wherein this court held that “chancery has exclusive jurisdiction of all cases involving matters of child support.” In Boren, this court recognized that under section 9-14-105 and Ark. Code Ann. § 16-13-201(a) (1987) chancery courts had been given exclusive jurisdiction of all “ ‘matters relating to the support of a minor child’ ” and found that enforcement of a child-support order was clearly a matter “related to the support of a minor child.” Id. at 380, 885 S.W.2d at 853. Thus, this court held in Boren that municipal courts and circuit courts do not have concurrent jurisdiction of child-support matters.

Appellant attempts to distinguish Boren from this case on the facts by pointing out that Boren involved the enforcement of a divorce decree that awarded child support and had been entered of record by a chancery court. Appellant relies heavily on the fact that she is seeking to enforce a contract rather than a divorce decree or a settlement agreement that has been incorporated into a divorce decree. Regardless of whether it is incorporated into a divorce decree or whether it is a contract independent of a divorce decree, the Separation Agreement Appellant seeks to enforce still involves matters “relating to the support of a minor child” as those terms are used in section 9-14-105(a). See Strasner v. Strasner, 232 Ark. 478, 482, 338 S.W.2d 679, 681 (1960) (concluding that “enforcement of a contract for alimony is an action for alimony, as distinguished from an action on debt, although the debt, as such, is recognized as subsisting by reason of agreement between the parties.”) (quoting McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938 (1946)). Therefore, according to that statute, jurisdiction of the enforcement of the Separation Agreement lies exclusively in chancery court, and according to section 16-13-201(a), the circuit court does not have concurrent jurisdiction of such matters. To hold otherwise, as Appellant suggests, would be to place form over substance.

We find no merit to Appellant’s argument that she has been denied a constitutional right to a jury trial. Both Article 2, Section 7 of the Arkansas Constitution and the Seventh Amendment to the United States Constitution establish a right to trial by jury only in those cases that were so triable at common law. Colclasure v. Kansas City Life Ins. Co., 290 Ark. 585, 720 S.W.2d 916 (1986), cert. denied, 481 U.S. 1069 (1987) (citing Curtis v. Loether, 415 U.S. 189 (1974)). Appellant does not cite any authority or make any convincing argument that she would have had a right to try this case to a jury at common law, and it is not apparent to us without further research that her argument is well taken. Under such circumstances, we affirm. Firstbank of Arkansas v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993). We will not do Appellant’s research for her. Id. Moreover, Appellant offers no authority, explanation, or convincing argument for the validity of her contract given that parents and guardians cannot contract for the support of their minor children without express approval of a chancery court, Davis v. Office of Child Support Enforcement, 322 Ark. 352, 908 S.W.2d 649 (1995), and that chancery courts exercise jealous and watchful care over minors by always retaining jurisdiction over child-support matters as a matter of public policy. Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983); Collie v. Collie, 242 Ark. 297, 413 S.W.2d 42 (1967).

The circuit court did not have subject-matter jurisdiction of this case. Thus, we affirm the order setting aside the default judgment.


author: ANDREE LAYTON Roaf, Justice. Robert L. Brown, Justice,

text:
    Xavier SMALLWOOD v. STATE of Arkansas
    CR 96-575
    935 S.W.2d 530
    Supreme Court of Arkansas
    Opinion delivered December 9, 1996

      Scott S. Freydl, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   ANDREE LAYTON Roaf, Justice.

Xavier Smallwood was convicted by a jury of rape and burglary which were committed when he was fifteen years of age. He was sentenced to forty years’ imprisonment for the rape, and ten years’ imprisonment for the burglary. On appeal, Smallwood alleges that there is insufficient evidence to support his convictions, that the State should have been prohibited from questioning him about prior misconduct, and that he should have been sentenced to concurrent, not consecutive, terms. We affirm.

On the morning of December 15, 1994, the victim returned home from working the night shift. As she entered the bedroom, Smallwood jumped out from behind the door, placed a butcher knife to her throat, and demanded that she remove her clothing. Smallwood threatened to kill her when she refused. The woman agreed to remove her clothing if she could first use the bathroom. While in the bathroom, she attempted to call her parents on a cordless telephone, but apparently Smallwood had cut the telephone line. Smallwood forced the woman into the bedroom, and again demanded that she remove her clothing. The victim begged Smallwood to use a condom so that she would not get AIDS or become pregnant. Smallwood used a condom provided by the victim and raped her twice.

After the rape, Smallwood told the victim that he had tried to talk to her before, but she would not speak to him, and that he was already in trouble for a prior burglary. Smallwood showed the victim were he had broken a porch window and cut a screen to obtain entry into her home. As he left the victim’s home, Smallwood threatened to rape her again and kill her family if she told anyone about the incident. Smallwood left on a bicycle and took the butcher knife with him.

The victim immediately called her family, and her mother notified the police. The victim described Smallwood and the clothes he was wearing to the police. The victim also described the knife taken by Smallwood as her rusty butcher knife with “Old Hickory” written on the handle.

The police suspected Smallwood from the victim’s description, and located him within a few hours, hiding in the woods behind his home and wearing the clothing described by the victim. In addition, the police found a butcher knife inscribed with the words “Old Hickory” lying on the table inside his house. At the time of his arrest, Smallwood told officers that he had consensual sex with the victim. The victim identified Smallwood as her attacker during a photo line-up and at trial.

Smallwood testified at trial and admitted to having sexual relations with the victim on December 15, but claimed that the two had been engaged in a consensual sexual relationship for about two years. Smallwood further alleged that the victim brought charges against him only because he told her that she was getting fat and that he intended to end their relationship. Finally, Smallwood claimed that the knife belonged to his mother and that he last saw it the day before the incident.

At trial, defense witnesses testified that Smallwood was a cousin of the victim’s husband, from whom she was separated, and that Smallwood and the victim knew each other. Smallwood’s mother testified that she had gone to school with the victim, and that the victim knew Smallwood when he was a baby, but that Smallwood had moved to Illinois when he was about ten years old. However, the victim denied having a consensual sexual relationship with Smallwood and testified that she had never seen him prior to December 15.

The jury found Smallwood guilty of both crimes and sentenced him to ten years imprisonment for burglary and forty years for rape. The judge denied Smallwood’s request for concurrent terms, and ordered the sentences to be served consecutively.

i. Sufficiency of the Evidence

Smallwood first argues that there is insufficient evidence to support his convictions for rape and burglary. At the close of the State’s case, Smallwood said: “Judge, may I let the record reflect that I move for a directed verdict at the end of the State’s case?” The court denied the motion. At the close of all evidence, Smallwood renewed his motion by stating: “Will the Court let the record reflect that my motion is renewed?” Again, the motion was denied.

A motion for directed verdict is treated as a challenge to the sufficiency of the evidence and requires the movant to apprise the trial court of the specific basis on which the motion is made. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). This court has said on numerous occasions that since the adoption of the Ark. R. Crim. P. 36.21(b), a general motion is insufficient to preserve a defendant’s argument that the statutory elements of the crime were not proven. Id. Because he failed to properly preserve the issue, Smallwood is procedurally barred from challenging the sufficiency of the evidence on appeal. Whitney v. State, 326 Ark. 206, 930 S.W.2d 343 (1996).

2. Prior Misconduct

Smallwood next argues that the trial judge erred by allowing into evidence testimony regarding his burglary conviction, involvement with drugs, theft of automobiles, propensity towards violence, and participation in gang activity.

It is well-settled under Arkansas law, that when a criminal defendant takes the stand in his own behalf his credibility becomes an issue, and the State may, under certain circumstances, test that credibility by asking the defendant about prior misconduct and criminal activity. Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979). Pursuant to Ark. R. Evid. 608(b), the State may ask a criminal defendant about prior acts of misconduct, regardless of whether such conduct is criminal, if the act is clearly probative of the defendant’s character for truthfulness. Ark. R. Evid 608(b); Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). In addition, the State may ask the defendant about any prior felony convictions, regardless of whether the crime involves an element of untruthfulness. Ark. R. Evid. 609.

In order to properly preserve these issues for appeal, the defendant must timely object at the first opportunity. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985). In addition, the defendant must renew his objection each time he is questioned about the matter. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). Finally, the defendant may not object if he has “opened the door” by discussing the matter during direct examination. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994); Dillion v. State, 317 Ark. 384, 877 S.W.2d 915 (1994).

During cross-examination, the State questioned Smallwood extensively about his burglary conviction, and an incident in which he threatened to shoot his mother, without objection by defense counsel. Hence, Smallwood’s failure to timely object is a waiver of these issues on appeal. Hill, supra.

When the State then began to ask Smallwood about his prior involvement in drug sales, the following exchanged occurred:

STATE: You’ve been pretty active in criminal activity?
SMALLWOOD: Yes, I have.
STATE: Selling drugs?
SMALLWOOD: That’s irrelevant but yes, I was a thug.
STATE: You happened to be selling drugs prior to this incident?
DEFENSE COUNSEL: Judge, that’s not material to this case.

The trial court overruled the objection. The defense counsel waited until after Smallwood had answered, and the State asked the question a second time before he objected. By failing to object at the first opportunity, Smallwood waived his right to contest on appeal the questions regarding his prior drug sales. Hill, supra.

Furthermore, Smallwood later admitted during cross-examination to membership in a gang that was involved in selling drugs and stealing cars while he was in Illinois, and to making a statement that he would shoot anyone who threatened him. Once again, his counsel’s failure to object to the questions precludes review of the issues on appeal. Hill, supra.

Moreover, on direct examination Smallwood opened the door to any questions about his propensity towards violence during the following exchange:

ATTORNEY: Did you threaten [the victim] with a knife or with anything?
SMALLWOOD: No, I didn’t threaten her with a knife. I’m not that type of person. I didn’t threaten her with a knife.

(Emphasis added.)

This court has recognized that a defendant may “open the door” to an otherwise impermissible inquiry in Larimore, where we said:

We have recognized that otherwise inadmissible testimony may be offered when one party has opened the door for another party to offer it. This is most often permitted when a defendant has been untruthful about a former crime or has brought up otherwise inadmissible character evidence which the State may then rebut.

Larimore, supra (emphasis supplied). By claiming that he was not the “type of person” to threaten someone with a knife, Smallwood placed his propensity towards violence in issue. Thus, the trial court properly allowed the State to question Smallwood about other violent acts or threats. Larimore, supra; Dillion, supra.

3. Consecutive Sentences

For his last argument, Smallwood contends that the trial judge erred when he ordered consecutive, instead of concurrent, sentences. After the jury sentenced Smallwood to ten years for burglary and forty years for rape, Smallwood simply asked the court to consider the running of the sentences concurrendy. The State then argued for consecutive terms because the crimes were not simultaneous and were “separate offenses.” Smallwood made no response to the State’s argument. The judge denied Smallwood’s request and ordered consecutive sentences without comment.

The State alleges that Smallwood has not preserved the issue by failing to object after the imposition of consecutive sentences. However, Smallwood’s motion for concurrent sentences was denied and neither of the cases relied upon by the State supports the argument that a further objection is required after the denial of a motion for concurrent sentences. In Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1980), we said that the appellant could not raise an argument for concurrent sentences not offered as a basis for his objection at trial. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), involved a conviction for a single offense, and the opinion set out several exceptions to the general requirement that an objection first be made to the trial court for an issue to be preserved for appeal.

As to the merits, this court has stated on numerous occasions that pursuant to Ark. Code Ann. § 5-4-403 the decision to impose consecutive or concurrent sentences lies solely with the province of the trial judge. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). Moreover, the appellant, by challenging this determination, assumes the heavy burden of showing that the trial judge failed to give due consideration in the exercise of his discretion. Id.

Smallwood made no argument in his request for concurrent sentences and raises no argument on appeal. Smallwood contends only that there is no way to evaluate the trial judge’s decision, and therefore his proper use of discretion, because he did not explain his decision orally or in writing. However, we rejected a similar argument in Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981) where we held that:

there is no rule that requires a trial judge to set forth in writing that he has exercised discretion. Since this is a matter within his discretion we will not presume he did not exercise that discretion unless there is some indication otherwise.

Id. Smallwood has not met his burden of showing that the trial court did not exercise discretion in deciding to impose consecutive sentences.

Affirmed.

Brown, J., concurring.

Robert L. Brown, Justice,

concurring. I concur in the result but write separately to express my concern with the holding that appellant’s counsel did not object in a timely manner to the prosecutor’s questions regarding prior involvement in drug sales, per the colloquy set out in the majority opinion. While the case relied upon for this result, Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985), did hold that an objection must be made at the first opportunity, that case involved an untimely objection made after eight questions had been asked on the subject. In this case, appellant’s counsel objected before the second question was answered, and given the realities of trial practice, the application of the rule to these facts is too technical. However, I concur in the result, as Smallwood later admitted on cross-examination, without objection, to membership in a gang involved in selling drugs. The line of questioning objected to, if error, was undoubtedly harmless.


author: Per Curiam.

text:
    Jack Gordon GREENE v. STATE of Arkansas
    CR 96-362
    933 S.W.2d 392
    Supreme Court of Arkansas
    Opinion delivered December 9, 1996

      William M. Pearson, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Per Curiam.

On June 28, 1996, Jack Gordon Greene petitioned to dismiss his appeal from his death sentence. By per curiam order of September 30, 1996, we denied his petition because it contained arguments concerning the legality of his conviction and sentence. We found his request equivocal to the extent that we were not convinced that Mr. Greene’s appeal should be dismissed. In our order denying that petition we set out the history of the case. Greene v. State, 326 Ark. 179, 929 S.W.2d 157 (1996).

Mr. Greene has now fried a second motion to dismiss his appeal. The motion is definite and without qualification or argument. Accordingly, we remand his case to the Johnson County Circuit Court to determine if Mr. Greene knowingly and intelligently waives his appeal. The judge is authorized to conduct any hearing necessary to arrive at a decision. Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988); Remeta v. State, 294 Ark. 206, 740 S.W.2d 928 (1987).

The execution of the death sentence is stayed pending the result of the hearing and review by this Court.


text:
    Rammie Earl HALL v. STATE of Arkansas
    CR 95-166
    933 S.W.2d 363
    Supreme Court of Arkansas
    Opinion delivered December 9, 1996
    Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Per Curiam.

Hall petitions for rehearing and cites U.S. v. Gaudin, _ U.S. _, 115 S.Ct. 2310 (1995), for the proposition that our decision improperly failed to entertain the jury-instruction issue raised herein as a structural error. We deny Hall’s petition by pointing out that Gaudin does not hold that an erroneous jury instruction which omits an element of the government’s burden of proof compels a finding of prejudicial error. See also California v. Roy, _ U.S. _, (No. 95-2025, Nov. 4, 1996).


author: PER CURIAM.

text:
    Don JENNINGS v. STATE of Arkansas
    CR 96-1396
    933 S.W.2d 393
    Supreme Court of Arkansas
    Opinion delivered December 9, 1996
    Christopher Carter, for appellant.
   PER CURIAM.

Appellant, Don Jennings, by his attorney, Christopher Carter, has filed a motion for a rule on the clerk. His attorney admits by motion that the record was tendered late due to a mistake on his part by relying on the court reporter’s calculation of the due date.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is therefore granted.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Darrell PROFIT v. STATE of Arkansas
    CR 96-740
    933 S.W.2d 392
    Supreme Court of Arkansas
    Opinion delivered December 9, 1996

      William Owen James, Jr., for appellant.
   Per Curiam.

The appellant, Darrell Profit, has filed a motion for rule on the clerk. As he filed his notice of appeal prior to the entry of the judgment and commitment order, it was of no effect. His attorney, William Owen James, Jr., admits responsbility for failing to perfect the appeal.

We treat the motion as one for a belated appeal and grant the motion. We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    UNIGARD SECURITY INSURANCE COMPANY and Employers Surplus Lines Insurance Company v. MURPHY OIL USA, INC. Employers Surplus Lines Insurance Company and Unigard Security Insurance Company v. Murphy Oil USA, Inc.
    96-843, 96-1060
    937 S.W.2d 627
    Supreme Court of Arkansas
    Opinion delivered December 9, 1996

      Williams & Anderson, by: Steven W. Quattlebaum and Leon Holmes, for appellant Unigard Security Insurance Co.

      James, Yeatman & Carter, PLC, by: Daniel R. Carter, for appellant Employers Surplus Lines Insurance Co.

      Wright, Lindsey & Jennings, by: M. Samuel Jones III and Claire Shows Hancock, for appellee Murphy Oil USA, Inc.
   PER CURIAM.

These cases arise from an action filed by Murphy Oil seeking declaratory judgment against a number of its insurance carriers. Some of the defendants settled out of court. Lloyds of London and California Union were granted summary judgment. A third insurance company, Associated International, prevailed against Murphy Oil at trial. On March 26, 1996, Murphy Oil obtained judgment against Unigard Security Insurance Co. and Employers Surplus Lines Insurance Co. in the full amount of its claim against all of the defendants. On May 16, 1996, Murphy Oil also was awarded attorneys fees for the declaratory judgment action.

There are three separate appeals now pending with regard to this lawsuit:

1. In Case No. 96-843, Unigard & Employers are appealing the declaratory judgment entered against them on March 26, 1996.

2. In Case No. 96-1060, Unigard & Employers are appealing the May 16, 1996 award of attorneys’ fees to Murphy Oil.

3. On April 25, 1996, Murphy Oil filed a Notice of Appeal contesting the summary judgment granted to Lloyds of London and California Union, and the defense verdict in favor of Associated International.

There are also cross-appeals filed in all of the three separate appeals.

The parties to these appeals have filed a number of motions which essentially pertain to whether the separate appeals are to be treated as one, and whether the appeal filed by Murphy Oil USA, Inc., is to be considered a cross-appeal of Case No. 96-843. The following orders are entered with respect to the motions pending before this court:

Case No. 96-843

1. The Motion of Employers Surplus Lines Insurance Company to file a joint abstract is granted.

2. The Motion of Murphy Oil USA, Inc., for clarification regarding the briefing schedule and record on appeal is granted, and the appeal by Murphy Oil USA, Inc., with respect to Associated International Ins. Co., Lloyds, and California Union Insurance Company is designated as a cross-appeal in Case No. 96-843. A briefing schedule shall be established by the clerk’s office in accordance with this designation.

Case No. 96-1060

1. The joint motion by Employers Surplus Lines Insurance Company and Unigard Security Insurance Company to stay the appeal until the resolution of Case No. 96-843 is granted.

2. The cross-motion of Murphy Oil USA, Inc., to consolidate the appeals in Case No. 96-843 and 96-1060 is denied.

3. The Motion of Employers Surplus Lines Insurance Company to file a joint abstract with Unigard Security Insurance Company is granted.

4. The joint motion of Employers Surplus Lines Insurance Co. and Unigard Security Insurance Co. and Murphy Oil USA, Inc., to stay briefing schedule until resolution of the other pending motions in Case No. 96-843 and 96-1060 is granted.

Jesson, C.J., Glaze and Corbin, J.J., not participating.


text:
    Christine M. JONES v. Jerry A. JONES
    95-1150
    933 S.W.2d 810
    Supreme Court of Arkansas
    Opinion delivered December 13, 1996

      Mona J McNutt, for petitioner.

      Grinder Law Firm, by: Helen Rice Grinder, for respondent.
   PER CURIAM.

The petition for extraordinary relief and

expedited proceedings is granted. The Faulkner County Chancery Court is directed to reinstate the original custody order forthwith.


author: Bradley D. Jesson, Chief Justice.

text:
    Richard AVERY and Carroll Truck Lines v. Willie WARD, Jr.
    95-880
    934 S.W.2d 516
    Supreme Court of Arkansas
    Opinion delivered December 16, 1996

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Julia L. Busfield, for appellants.

      J.L. Wilson & Associates, by: J.L. Wilson, for appellee.
   Bradley D. Jesson, Chief Justice.

The appellants, Bichard Avery and Carroll Truck Lines, appeal from a judgment against them in the amount of $100,000. They advance four bases for reversal: (1) the trial court erred in denying their motion for directed verdict because there was no substantial evidence to support the verdict; (2) the trial court erred in admitting testimony and medical bills of appellee Willie Ward, Jr., without a proper foundation; (3) the trial court erred in denying Avery’s motion for a new trial based on error in the assessment of damages; and (4) the trial court erred in refusing to allow Avery to use a peremptory challenge to strike a prospective juror. We agree with appellants’ second contention and reverse and remand for a new trial.

On April 26, 1986, Bdchard Avery was an employee of Carroll Truck Lines and was driving a tractor-trailer truck. Ward testified that he had slowed his pickup truck to allow a car ahead of him to turn when he was hit from behind by Avery’s truck. As a result of the collision, a screwdriver fell off either Ward’s dashboard or the truck seat and punctured him on his ankle, causing infection and an abscess to develop. He also claimed back and neck injuries.

Ward’s wife, Betty Ward, contacted Dr. Matthew Wood, his primary physician, and scheduled an appointment for some eight to ten days after the incident. Ward was hospitalized on May 13, 1986, and remained there for sixteen days. At the hospital, Ward fell while trying to leave his bed to go to the bathroom. He experienced a hernia, which led to an operation. His total medical bill for the hospital stay was $7,951.63. Ward, who had previously suffered from diabetes, hypertension, and back problems, incurred additional medical expenses while in the hospital. During his sixteen-day stay, he was tested for hemorrhoids and a rash and received ophthalmology and urology examinations.

Ward sued Avery and Carroll Truck for negligence and sought to collect on all medical expenses. Following trial, the jury returned a general verdict in Ward’s favor in the amount of $100,000. Subsequently, the trial court refused to grant a motion for a new trial based in part on the improper admission into evidence of certain medical expenses.

I. Sufficiency of the Evidence

Avery and Carroll Truck first contend that there was no substantial evidence to support the verdict. We disagree. The appellants correcdy state our standard of review for denial of a directed verdict. A directed verdict for a defendant is proper only when there is no substantial evidence from which the jurors as reasonable individuals could find for the plaintiff. Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986), quoting St. Louis S.W. Ry. Co. v. Farrell, 242 Ark. 757, 416 S.W.2d 334 (1967). Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or the other. Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993); Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991); Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 671 S.W.2d 178 (1984). Evidence introduced by the plaintiff, together with all reasonable inferences therefrom, is examined in the fight most favorable to the plaintiff when a motion for directed verdict is made by the defendant. See Sanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418 (1993); Muskogee Bridge Co. v. Stansell, 311 Ark. 113, 842 S.W.2d 15 (1992).

We will not sustain a verdict that is based on speculation and conjecture. Muskogee Bridge Co. v. Stansell, supra. Here, however, that is not the case. Ward testified that he had slowed and signaled and that Avery’s tractor-trailer rig ran into the back of his pickup truck. There is certainly sufficient proof, based on Ward’s testimony, that Avery was not keeping a proper lookout and, as a result, was negligent. The trial court appropriately denied the motion for a directed verdict and allowed the matter to go to the jury for determination.

II. Foundation for Medical Bills

Avery and Carroll Truck next claim that there was error in admitting medical records and testimony into evidence. They contend that Ward suffered from back and neck pain before the accident as well as a recurring ulcerated condition on his ankle. They further claim that there was no causal connection between the automobile accident and the various medical treatments he received while in the hospital, and that the jury was inappropriately permitted to consider medical expenses as damages without a proper foundation being laid.

A party seeking medical damages has the burden of proving the reasonableness and necessity for that party’s medical expenses. Bell v. Stafford, 284 Ark. 196, 680 S.W.2d 700 (1984). In that case, we discussed the basic principles underlying the admission of medical evidence:

Our decisions recognize a distinction between proof of reasonableness and proof of necessity. We have held that evidence of expense incurred in good faith is some evidence that the charges were reasonable. Hou/eoer, evidence of expense incurred alone is not sufficient to show that charges were causally necessary. Yet, the testimony of the injured party alone, in some cases, can provide a sufficient foundation for the introduction of medical expenses incurred. For example, if a litigant suffered a specific injury in an accident and was immediately taken to a hospital emergency room for treatment of only that specific injury, the injured party’s testimony would be sufficient to establish the necessity of the medical expense as a result of the accident. However, expert testimony would normally be required to prove the necessity of the expense when . . . expenses for hospital tests were incurred many months after the accident, none of the physicians in attendance immediately after the accident referred the litigant either to the admitting doctor or to the hospital, and the expenses on their face do not appear to be related to the accident.

284 Ark. at 199 (emphasis added).

Avery and Carroll Truck first complain that Ward’s ulcerated ankle was a preexisting and recurring condition. The medical testimony of Dr. Larry Burke, a vascular surgeon, and Dr. Nicholas Economides, a plastic and reconstructive surgeon, who were two of Ward’s treating physicians, substantiated this. As a result, the appellants question whether the falling screwdriver merely exacerbated Ward’s prior condition. Moreover, they underscore that even Ward could not be certain that the vehicular accident caused his ulcerated condition to worsen.

The fact that Ward was a diabetic, suffered from hypertension, had a history of back problems, and had a prior ulcer on his ankle that recurred from time to time does not rid the appellants of liability. It simply means that Ward qualified as an “eggshell plaintiff,” that is, one who was susceptible to enhanced injury by virtue of an existing condition. See Primm v. U.S. Fidelity and Guaranty Ins. Corp., 324 Ark. 409, 922 S.W.2d 319 (1996). Furthermore, Ward testified that the rear-end collision “shook me up pretty bad and knocked everything off the dashboard and everything off the seat onto the floor.” He added that after the accident; his back and neck were hurting and “then this screwdriver object had fallen onto [his] right leg and bumped [his] left leg.” Ward testified that the screwdriver punctured his leg. He stated that after the accident, his wife washed, salved, and bandaged his leg and that his back was “steadily hurting” and got worse. He told both Dr. Economides and Dr. Burke that the ulcerated condition on his leg was due to the accident.

We have held that matters of causation are questions of fact for the jury to decide. See, e.g., First Commercial Trust Co. v. Rank, 323 Ark. 390, 915 S.W.2d 262 (1996); see also Catlett v. Stewart, 304 Ark. 637, 804 S.W.2d 699 (1991). The same holds true for matters of credibility. Diamond State Towing Co. v. Cash, 324 Ark. 226, 919 S.W.2d 510 (1996). Avery and Carroll Truck argue long and hard, as they did at trial, that the element of causation is missing with respect to the medical treatment for Ward’s back, neck, and leg. We conclude, nonetheless, that an adequate foundation was laid for the treatment of these conditions and that ultimately the question of causation was one for the jury. There was no reversible error committed on this point.

We reach a different conclusion regarding the hernia operation performed on Ward while he was hospitalized. Avery and Carroll Truck question the causal relationship of these medical expenses to the accident. Ward testified regarding the hernia:

The hernia happened to me while I was in the hospital. Whether it had any bearing on this accident or not, I don’t know. I know it happened in the hospital. ... [I] didn’t fall on the floor, I eased down, but I mean, I had to go down. I couldn’t stand up. ... I got out of bed, and it hurt me so, I just went on to the floor, and they came and picked me up.

At the close of Ward’s evidence, Avery and Carroll Truck moved for a directed verdict on the sufficiency of the evidence and a partial directed verdict on the failure to prove medical bills with reasonable certainty. They asserted that only a few expenses by Dr. Economides were sufficiendy proved and tied into the accident. They specifically complained about the hernia expenses, which included operating room costs, anesthesia and recovery room fees, and an anesthesiologist bill, and totalled $971.40. The trial court, in denying the motion for a partial directed verdict, admitted that it did not remember any testimony from the treating physicians on the hernia and was concerned about how one could separate out the costs related to the hernia from the other medical expenses. It concluded that the matter was a jury question.

We find the Restatement of Torts to be instructive on the hernia issue. It is clear that a negligent actor is only responsible for additional bodily harm resulting from the normal efforts of those providing medical treatment as reasonably required for the original bodily injury. Restatement (Second) of Torts, § 457 (1965). An illustration under comment (e) to § 457 states that a hospitalized person who elects to have a hernia repaired which is unrelated to the accident cannot do so at the expense of the negligent actor.

Section 460 of the Restatement of Torts, however, provides:

If the negligent actor is liable for an injury which impairs the physical condition of another’s body, the actor is also liable for harm sustained in a subsequent accident which would not have occurred had the other’s condition not been impaired, and which is a normal consequence of such impairment.

Restatement (Second) of Torts, § 460 (1965). We agree with Avery and Carroll Truck that there is insufficient proof that the hernia operation was in any wise a normal consequence of the original impairment. No medical testimony linked the hernia to the accident. Certainly, the testimony of Ward himself does not support any connection. A proper foundation was not laid for the consideration of these expenses.

Turning to the remaining medical expenses, according to Ward’s testimony, he was examined for everything from a hernia to hemorrhoids while he was in the hospital. In fact, Ward, who had a lengthy medical history, testified that “[t]hey checked me for everything. Dr. Wood didn’t let nothing go. That’s why I go to him.” According to Betty Ward, while in the hospital, her husband was seen by Dr. Frank McGrew for hypertension, Dr. Robert Kaplan for complaints of a rash, Dr. Robert Hamilton for an ophthalmology evaluation, and Dr. Richard Pearson for a urology exam.

Neither Ward nor any expert testified that the tests for hemorrhoids, hypertension, and a rash were related to his being struck by a screwdriver in the leg. There was no foundation laid to establish that ophthalmology and urology studies were causally necessary. There was no testimony that a cardiology bill, dated nearly a year after the accident, bore the requisite causal relationship. While Ward argues in his brief that Dr. Wood made the referrals for these services, Dr. Wood did not testify. While Ward offered expert testimony concerning the treatment of his skin ulcers, the jury heard no expert testimony regarding the other treatments Ward received. Significantly, Dr. Burke testified that he could have treated Ward for his skin ulcers as an outpatient.

In this age of “managed care,” a sixteen-day hospital stay is lengthy for any ailment. We have no medical testimony as to why Ward was admitted to the hospital in the first place. Likewise, there is no medical evidence as to how much of his stay was attributed to the injuries from the accident and how much was for the hernia and other unrelated tests and treatment. To the extent that the hospital bill may have included these unrelated expenses, we must conclude that it was erroneously admitted.

The issue then becomes whether medical expenses erroneously admitted can be separated from the valid medical treatment received. Ward submitted medical expenses for the hospital stay and subsequent treatment totaling between $13,000 and $14,600 and $236.25 for property damage to his pickup truck. The jury was instructed on damages for pain, suffering, and mental anguish and returned a general verdict for $100,000.

A plaintiff may prevail in a personal-injury case upon proof “that he sustained damages, that the defendant was negligent, and that such negligence was the cause of his damages.” Mahan v. Hall, 320 Ark. 473, 477, 897 S.W.2d 571 (1995). The law imposes on the plaintiff the burden of establishing a causal nexus between his injuries and the defendant’s negligence. Wheeler v. Bennett, 312 Ark. 411, 419-20, 849 S.W.2d 952 (1993); Bell v. Stafford, 284 Ark. 196, 199, 680 S.W.2d 700 (1984). Reversible error occurs when a jury is permitted to award damages on the basis of injuries that are not caused by the defendant. Jonesboro Coca-Cola Bottling Co. v. Young, 198 Ark. 1032, 1036, 132 S.W.2d 382 (1939).

Ordinarily, a general verdict is viewed as “a complete entity which cannot be divided, requiring a new trial upon reversible error.” Jacuzzi Brothers, Inc. v. Todd, 316 Ark. 785, 791, 875 S.W.2d 67 (1994). We have said, however, that “a new trial can sometimes be avoided by the entry of a remittitur” if the error “relates to a separable item of damages.” Id. “Such a remittitur is fixed by the highest estimate of the element of damage affected by the error.” Swenson v. Monroe, 244 Ark. 104, 108, 424 S.W.2d 165 (1968); Martin v. Rieger, 289 Ark. 292, 299, 711 S.W.2d 776 (1986). But if “we are at a complete loss to say what damages the jury would have allowed if the [improper evidence] had not been con sidered,” and if “we cannot with confidence arrive at any maximum figure that the jury would surely have allowed” absent the error, a new trial cannot be avoided by the entry of remittitur. Woods v. Kirby, 238 Ark. 382, 385, 382 S.W.2d 4 (1964). If it is necessary to speculate in order to fix a remittitur, we reverse and remand the case for a new trial. Arkansas State Highway Comm’n v. Perryman, 247 Ark. 120, 125, 444 S.W.2d 564 (1969); Arkansas State Highway Comm’n v. Darr, 246 Ark. 204, 210, 437 S.W.2d 463 (1969); Southwestern Bell Telephone Co. v. Fulmer, 269 Ark. 727, 732, 600 S.W.2d 450 (Ark. App. 1980).

Even if were able to exclude from the jury’s verdict the amount for the hernia operation and the amount of the hospital bill attributed to the unrelated treatment Ward received, we would have no way of knowing that the sole effect of the erroneously admitted evidence was to enhance the amount of damages awarded for medical expenses. See Chicago, R.I. & P. Ry. Co. v. Batsel, 100 Ark. 526, 536, 140 S.W. 726 (1911). To be sure, if we were to sustain the pain-and-suffering award in this case, we would violate the cardinal rule limiting recovery for pain and suffering to that caused by a defendant’s negligence. See generally Jacob A. Stein, Stein on Personal Injury Damages § 2:1, at pp. 15-16 (2d ed. 1991) (“Compensation fbr pain and suffering must be proved to be the proximate result of the wrongful act. Remote or extraordinary consequences of the wrongful act are excluded from consideration in arriving at fair compensation. There can be no recovery for pain-and-suffering which must be endured whether or not the defendant acted tor-tiously. Injury which results from an intervening cause unconnected with the defendant’s wrongful act is excluded from consideration in arriving at the amount of the award.”). See also Southern Pac. Co. v. Hetzer, 135 F. 272, 274 (8th Cir. 1905) (“[I]n actions for personal injury the plaintiff may recover for the bodily suffering and the mental pain which are inseparable and which necessarily and inevitably result from the injury.”); Jurcich v. General Motors Corp., 539 S.W.2d 595, 601 (Mo.Ct.App. 1976) (“ ‘Pain and suffering’ are recoverable as damages in those cases where there has been a personal injury and the pain and suffering are the proximate result of the defendant’s wrongful act causing the injury, and which necessarily and inevitably result from the injury.”).

In Wheeler v. Bennett, supra, the plaintiff recovered $100,000 in damages for injuries she sustained in an automobile accident caused by the defendant’s negligence. On appeal, we held that the plaintiff failed to show a causal relationship between chest pains, suffered some eight months after the accident, and the defendant’s negligence. We affirmed the judgment, however, on condition that the plaintiff remit $8,281.24, an amount reflecting only the medical expenses incurred by the plaintiff in treating the chest pains. However, in the Wheeler case, we did not discuss whether the pain and suffering element of the judgment should have been a consideration in determining whether remittitur was proper. It presents no holding on the issue. We obviously overlooked the effect of the improperly admitted evidence of chest pains and the resulting medical bills on the pain and suffering component of the verdict and thereby failed in our obligation to fix a remittitur at “the highest estimate of the element of damage affected by the error.” Swenson v. Monroe, supra. According to the Swenson case, a proper remittitur requires the reduction of the entire amount of the verdict “affected by the error” of the trial court. We now recognize our failure to consider the pain-and-suffering issue in the Wheeler case and will not repeat that oversight here.

As Ward failed to meet his burden to show that the expenses he incurred for the various treatments he received during his sixteen-day hospital stay were reasonably and causally related to the accident, we must agree that the trial court erred in admitting his medical bills into evidence. In so holding, it is unnecessary to address appellants’ remaining arguments relating to the jury’s assessment of damages and the trial court’s refusal to allow a peremptory challenge, as these issues are unlikely to arise again on retrial.

Reversed and remanded.

Dudley, Glaze, and Corbin, JJ., not participating.

Special Justices WOODY BASSETT, JAMES O. Cox, and DANIEL B. THRAILKILL join in this opinion.


text:
    Jimmy HERITAGE v. STATE of Arkansas
    CR 96-735
    936 S.W.2d 499
    Supreme Court of Arkansas
    Opinion delivered December 16, 1996

      Larry Dean Kissee, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Bradley D. Jesson, Chief Justice.

On March 10, 1995, the appellant was arrested when he picked up a package at the UPS office in Batesville. The package contained a controlled substance, methamphetamine. Officers searched the appellant at the scene and also discovered methamphetamine in the watch pocket of his jeans. As a result, the appellant was charged with two counts of possession of a controlled substance with intent to deliver. He was convicted of one count, for which he received a sentence of twenty-five years. On the other count, he was convicted of the lesser offense of possession, for which he received a sentence of seven years. The trial judge ordered the sentences to run consecutively. We affirm the convictions.

Heritage raises seven issues on appeal. Included among them is a challenge to the sufficiency of the evidence to support his conviction for possession with intent to deliver. That issue requires a detailed recitation of the facts, which are as follows. Early on March 10, 1995, UPS employee Jessica Clayton drove from Batesville to Little Rock to pick up the day’s packages. Among the packages she retrieved was one bearing the following address: Justin Heritage, 25 Triangle Drive, Trailer No. 26, Batesville, Arkansas. Justin Heritage was the appellant’s fourteen-year-old son. The package had been shipped with the priority status of “next day air” from Downey, California. Ms. Clayton took special notice of the package because the appellant was a former employee, of UPS. She knew that the appellant had moved from the Triangle Drive address. Further, since she drove by that address every day on her way to and from work, she was aware that Trailer No. 26 was unoccupied. Knowing the address to be improper, and knowing that delivery of the package was guaranteed by 10:30 a.m., Ms. Clayton, in accordance with UPS company policy, opened the package to locate information which would lead to a correct address. Inside, she found a bag of rocks, some rags, and some fabric-softener sheets. The package also emitted a foul odor. Suspicious, she brought the matter to the attention of the Litde Rock supervisor. He suggested that she show the package to the supervisor in Batesville.

Upon her return to Batesville, Ms. Clayton immediately showed the package to her boss, Randy McFadden. McFadden examined the contents of the package and found, in addition to what Ms. Clayton had seen, a plastic bag with the notation “V4 pound” on it. Inside the bag was a brownish-yellow rock. McFadden called the sheriff’s office and told them he had a package addressed to a former employee and that the package might contain drugs. Two narcotics investigators, Darren Plaster and Roger Tate, arrived at the UPS office shortly thereafter, at about 9:30 a.m. Approximately the same time, Jimmy Heritage arrived at the UPS office to pick up the package. The evidence is unclear as to whether Heritage arrived at the office of his own accord or whether he had been called and told that the package was there.

Once the officers found out that Heritage was on the scene, they went into an office so as not to alert him to their presence. (Heritage had taken some notice of the officers but, since they arrived in plain clothes and an unmarked vehicle, there is no way of knowing whether Heritage thought they were policemen.) The officers waited while McFadden approached Heritage with the package, which had been resealed, and a signature clipboard. According to McFadden, he stood close enough to Heritage so that Heritage could see the address on the package. The two became involved in a conversation about a gun Heritage wanted to trade. Heritage went out to his truck, purportedly to retrieve the gun. Instead, he drove away.

McFadden returned to his office and told the officers what had transpired. The package was then reopened and a field test performed on the material inside. It tested positive for amphetamines. The officers decided to call for reinforcements and to set up surveillance in anticipation of Heritage returning to pick up the package. The next activity occurred around 11:00 a.m. Heritage called McFadden and asked him to deliver the package to the trailer listed on the address label. McFadden, who was also aware that Heritage had moved and that the trailer was vacant, declined to do so. Finally, near 5:00 p.m., Heritage returned to the UPS office. He told the counter clerk that he “came back to get my package, I mean Justin’s.” He signed for the package and carried it outside. At that point, he was arrested and handcuffed. While handcuffed, Heritage tried to reach into his right front pocket. The pocket was searched and a bag, which later turned out to contain 1.011 grams of 92.3% methamphetamine, was found. The substance in the UPS package was sent to the crime lab. It was revealed to be 102.92 grams of 78.3% methamphetamine.

Sufficiency of the Evidence

Heritage argues that there is no substantial evidence that he knowingly possessed the drugs in the UPS package with the intent to deliver them. Substantial evidence is that which is forceful enough to compel a conclusion one way or another and which goes beyond speculation or conjecture. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). In determining whether there is substantial evidence to support a conviction, we review the evidence in the light most favorable to the appellee and consider only that evidence which supports the verdict. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). There is ample evidence in this case of intent to deliver. Possession of amphetamines in an amount exceeding two hundred milligrams creates a rebuttable presumption of intent to deliver, Ark. Code Ann. § 5-64-401 (d) (Repl. 1993). The presumption amounts to substantial evidence of intent to deliver. Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). However, Heritage’s argument is primarily directed to the “possession” element of the crime. He contends that, since the package was not addressed to him and he did nothing more than retrieve it from the UPS office, he did not knowingly possess what was inside the package. The proof, when viewed in a light most favorable to the State, supports the inference that the appellant knew what the package contained. The evidence was susceptible of the interpretation that the appellant showed up at the UPS office on the morning of March 10 without having been contacted by UPS, leading to the conclusion that he was expecting the package. Further, the evidence showed that, on his first visit to UPS, he left unexplainedly without having picked the package up. He attempted to have McFadden deliver the package to an unoccupied residence even though he knew, as a former employee of twenty-three years, that such a request was against company policy. He picked up the package and signed for it, stating he “came back to get my package, I mean Justin’s.” He was in personal possession of meth-amphetamines in his own pocket. Finally, the jury might have found it implausible that a person in California might send a drug shipment, via UPS, to a fourteen-year-old boy.

A person’s state of mind is seldom capable of proof by direct evidence. It must be ascertained from the circumstances surrounding the event. Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996). The circumstantial evidence in this case supports the jury’s verdict.

Motion to Sever Offenses

For his second argument, Heritage claims that the trial court should have severed the count relating to the drugs found in the UPS package from the count relating to the drugs found in his pocket. The decision on whether to grant severance is within the trial court’s discretion. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). While offenses may not be joined solely on the basis that they are of the same or similar character, Id., they may be joined if they are part of a single scheme or plan. See A.R.Cr.P. 22.2. The appellant relies on Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979) to argue that his offenses were not part of a single scheme or plan. In Teas, the appellant sold $20.00 worth of marijuana to a man on December 5. He sold two morphine pills to the same man on December 14. We held that the trial court should have severed the offenses. The case at hand is readily distinguishable. The offenses in this case did not occur nine days apart; they were virtually simultaneous. The appellant was in possession of two distinct amounts of the same type of controlled substance at the same time and at the same location. Each substance was possessed in a weight sufficient to raise the presumption of intent to deliver. We find no abuse of discretion by the trial court in refusing to sever the offenses.

Search and Seizure

The appellant argues that a search warrant used to effect a search of the UPS package was invalid. He also claims that the warrantless search of his person was without reasonable cause. Below, he filed a motion to suppress the evidence found as a result of each search. The motion was denied by the trial court.

We address the warrantless search first. An officer who makes a lawful arrest of a suspect is authorized to search the person of the arrestee to look not only for weapons but for the fruits and instrumentalities of the crime. Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991). See also A.R.Cr.P. 12.1. The appellant claims that this is not a “search incidental to arrest” because his arrest was without reasonable cause. Reasonable cause exists where the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to conclude that an offense has been or is being committed. Gaylor v. State, 284 Ark. 215, 681 S.W.2d 348 (1984). At the time the appellant was arrested, he was in possession of a package which the officers knew to contain illegal drugs. Even though the package was addressed to the appellant’s son, the appellant had shown an interest in the package sufficient to lead authorities to conclude he was aware of its contents. Therefore, reasonable cause to arrest the appellant existed and the warrantless search of his person was justified.

Our review of the validity of the search warrant requires the recitation of some additional facts. After Heritage was arrested, officers Plaster and Tate began preparation of an affidavit for the purpose of securing a warrant to search the UPS package. The front page of the affidavit noted that the package was addressed to Justin Heritage. However, in that part of the affidavit containing the facts establishing grounds for issuance of a warrant, the officers stated that they had received a call from Randy McFadden declaring that he had a package “addressed to a former employee.” The appellant contends that this constitutes a misstatement to the issuing magistrate, such that the warrant should be invalidated. We disagree. We are not completely convinced that a search warrant was necessary in this case since the officers initially viewed the contents of the package at the invitation of a private actor. See United States v. Jacobsen, 466 U.S. 109 (1984). However, even if a warrant was necessary, the misstatement contained in the affidavit does not invalidate the warrant. To prevail, the appellant was required to show by a preponderance of the evidence that, one, the false statement was made knowingly and intentionally or in reckless disregard of the truth, and, two, the false statement was necessary to a finding of probable cause. Franks v. Delaware, 438 U.S. 154 (1978). The trial judge found that, while the statement may have been a mistake, there was no evidence that a falsehood was perpetrated knowingly and intentionally or in reckless disregard of the truth. We will not reverse the trial judge’s finding on a motion to suppress unless it is clearly against the preponderance of the evidence. Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992). The evidence at the suppression hearing bebed the notion that anything other than a careless mistake had been made by the officers. The officers noted in their cover sheet and in the warrant they prepared that the package was addressed to Justin Heritage. The issuing magistrate, Judge Roy Thomas, testified that he was aware that the package was addressed to Justin and that Justin was the appellant’s son. This evidence indicates not only that there was no knowing, intentional or reckless misconduct, but that the misstatement in the affidavit was not the basis for a finding of probable cause.

Evidence at Trial

During the testimony of Officer Alan Cockerill, the prosecutor asked the officer “the normal purity level that you find as a narcotics officer on the streets of Batesville, Arkansas.” The officer answered, twenty to forty-five percent. Later, the officer was asked the market value of the drugs involved in this case. He answered, $100.00 to $120.00 for the drugs found in the appellant’s pocket and $2,000.00 to $3,000.00 for the drugs in the UPS package. The appellant argued that information was irrelevant because the weight of the drugs, the only necessary consideration, had already been established. The trial judge overruled the objection.

A trial judge’s ruling on relevancy issues will not be disturbed absent an abuse of discretion. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995). It is true that the weight of the drugs creates a presumption of intent to deliver. However, since the presumption is not conclusive, the State may offer additional evidence on the issue of intent to deliver. See also Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985).

Instruction on Entrapment

The appellant proffered instructions on the affirmative defense of entrapment. Entrapment occurs when a law-enforcement officer or any person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording the person an opportunity to commit an offense does not constitute entrapment. Ark. Code Ann. § 5-2-209 (Repl. 1993). Our law has been that, if a defendant denies committing an offense, he cannot assert that he was entrapped into committing the offense. Morris v. State, 300 Ark. 340, 779 S.W.2d 526 (1989). The appellant asks us to carve out an exception to that rule for situations in which the State’s case-in-chief contains sufficient evidence of entrapment. See Mathews v. United States, 485 U.S. 58 (1988). We do not deem it necessary to reach that issue because the evidence in this case doesn’t merit an entrapment instruction. While officers and UPS officials provided the appellant with the opportunity to commit the crime, there is no showing that he was induced or persuaded to commit the crime. If there is no evidence to support an instruction, it is not error to refuse it. Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992).

Remarks in Closing Argument

During closing argument in the sentencing phase of the trial, the appellant’s counsel made the following statement:

If you send Mr. Heritage to the penitentiary, you all know what the situation is in the penitentiary right now. They may have to turn a murderer or a rapist out —

The prosecutor, without making a formal objection, stated that the argument was “improper” and “unfounded” and “a false statement.” Counsel were asked to approach the bench. During their argument at the bench, the appellant objected on the grounds that the prosecutor was raising his voice, allowing the jury to hear his remarks. The appellant asked for a mistrial. The trial court polled the jury, asking if they had heard any of the bench conference. They had not, and the motion was denied. The court also denied a mistrial motion with regard to the prosecutor’s remark that defense counsel had made a false statement.

A mistrial is a drastic remedy which should be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996). Considering that, in this case, the remarks occurred during the sentencing phase, the jury did not hear the remarks emanating from the bench conference, the jury had been instructed that remarks of counsel are not evidence, and no admonition was requested, we uphold the trial court’s denial of the mistrial motions.

Affirmed.


author: Bradley D. JESSON, Chief Justice.

text:
    Sandra RUSH v. FIELDCREST CANNON, INC., a North Carolina corporation; Allied-Signal, Inc., a Virginia corporation; Brandon Furniture Company, Inc., and Arkansas corporation, d/b/a Brandon House Furniture; Congoleum Corporation, a New Jersey corporation; Brinkman, L.D. & Co., a Texas corporation, d/b/a L.D. Brinkman Co.; Crest-Foam Corporation, a subsidiary of Leggett & Platt Incorporated, a Missouri corporation; Jamison, Jim, Inc., d/b/a Jim Jamison Pest Control, a Tennessee corporation; Central Termite & Pest Control, Inc., an Arkansas corporation; Stanley Steamer International, Inc., d/b/a Stanley Steamer Carpet Cleaner; Bill Jones, a citizen and resident of Arkansas; Dowelanco, d/b/a Elanco Products Co., a division of Eli Lilly Co., an Indiana corporation; Velsicol Chemical Corporation, a Delaware corporation; and the Dow Chemical Company, a Delaware corporation
    96-127
    934 S.W.2d 512
    Supreme Court of Arkansas
    Opinion delivered December 16, 1996

      Dover & Dixon, P.A., by: David A. Couch, for appellant.

      Friday, Eldredge & Clark, by: James M. Simpson; and Snellgrove, Laser, Langley, Lovett & Culpepper, by: David N. Laser, for appellees.
   Bradley D. JESSON, Chief Justice.

This appeal arises from the dismissal of appellant Sandra Rush’s products-liability complaint. The trial court dismissed her case with prejudice for her “pattern of intentional, willful and deliberate delay” and for her “failure to narrow her case and ready it for trial.” On appeal, appellant asserts that the trial court erred in allowing her second attorney to withdraw in violation of ARCP Rule 64(b), and in faffing to give her third attorney adequate time to prepare her case for trial. We disagree that the trial court abused its discretion and affirm.

Appellant initiated this lawsuit on October 18, 1991, alleging that she developed multiple-chemical-sensitivity syndrome as a result of her alleged exposure to certain carpeting products installed at her Little Rock residence. Represented by Little Rock attorney James F. Swindoll, appellant filed her complaint against Fieldcrest Cannon, Inc., a carpet manufacturer, Allied Fibers, a carpet-component manufacturer, and Brandon Furniture Company, Inc., a carpet installer. On September 8, 1992, appellant amended her complaint to add ten additional defendants, among which included carpet cleaners, vinyl-flooring manufacturers and wholesalers, and pesticide manufacturers and applicators. She claimed that she became chemically sensitive sometime between the time her house was built in 1978 and when pesticides were applied to her home in 1989. Her case was assigned to the Seventh Division of Pulaski County Circuit Court. Appellant was ordered to provide medical authorization so that appellees could obtain her medical records. Appellant nonsuited her case on December 31, 1992, and, thereafter, attorney Swindoll discontinued his representation of appellant.

After obtaining a new attorney, Robert A. Krause of the Wyoming firm of Spence, Moriarity and Schuster, appellant refiled her case on December 28, 1993, against the present thirteen appel-lees. The case was assigned to the Second Division of Pulaski County Circuit Court. On May 25, 1994, the trial court entered a scheduling order providing that appellant was to identify her expert witnesses by February 21, 1995, and setting a trial date of September 5, 1995, over one year away. Appellant did not designate her expert witnesses by the due date. Instead, on February 25, 1995, she filed a motion under seal for an extension to identify experts. Accompanying this motion was a motion by attorney Krause to withdraw as counsel.

At a March 15, 1995, ex parte hearing on the motion to withdraw, Krause informed the trial court that he was prepared to identify eight expert witnesses who would testify at trial. Krause showed the trial court a list of these witnesses, which included descriptions of their expected testimony. According to Krause, appellant would not permit him to disclose this list to the appellees. Rather, appellant insisted on a two-page list containing twenty-two additional experts with whom she could not claim she had spoken. At the conclusion of the hearing, the trial court announced that he was granting Krause’s request to withdraw and gave appellant sixty days to hire a third attorney. The trial court entered a written order to this effect on March 28, 1995.

On May 26, 1995, Elizabeth Burkhardt of Houston entered her appearance as counsel for appellant. The trial court held a status conference on May 31, 1995. At this hearing, the trial court announced a new scheduling order calling for appellant to name her experts by July 5, 1995, and setting a November 8, 1995, trial date. The trial court cautioned appellant that she needed to “narrow the issues down and narrow the witness list down,” and that “we are going to stick to those dates.”

On July 5, 1995, appellant designated forty-two expert witnesses, not all of whom she planned to call at trial. The list included most, if not all of the witnesses on her previous list, the eight witnesses attorney Krause had wished to identify, plus additional expert witnesses. Thereafter, the appellees filed a joint motion to dismiss appellant’s case with prejudice. Following a hearing on the motion, the trial court entered a detailed order on August 31,1995, dismissing appellant’s case with prejudice.

In its order, the trial court found that appellant had “insisted on identifying an excessive and unreasonable number of expert witnesses . . . for the improper purpose of harassing the defendants and delaying the litigation.” The trial court further determined that appellant’s “pattern of intentional delay, her abuse of the legal system, her failure to narrow her case and ready it for trial, and her willful disregard of the rules of court and this court’s orders” had resulted in “unfair prejudice and tremendous and unreasonable expense” to appellees. It is from this ruling that appellant appeals.

Withdrawal of counsel

Appellant first argues that the trial court erred in permitting Krause, her second attorney, to withdraw as counsel. This issue is governed by ARCP Rule 64(b), which provides that permission to withdraw may be granted for good cause if counsel demonstrates that he (1) has taken reasonable steps to avoid foreseeable prejudice to his client, including giving due notice to his client and allowing time for employment of other counsel; (2) has delivered or stanch ready to tender to the client all papers and property to which the client is entitled; and (3) has refunded or stands ready to refund any unearned fees. In Jones-Blair Co. v. Hammett, 326 Ark. 74, 930 S.W.2d 335 (1996), we explained that the rule’s purpose was to protect the client’s interests, and that the trial court, in considering an attorney’s motion to withdraw, should examine the proposed withdrawal from the point of view of the client, not the attorney.

We have no reservation in concluding that Rule 64 was complied with in this case. Krause requested permission to withdraw for three reasons. First, he stated that he could not, in good faith, carry out appellant’s instructions with respect to identifying expert witnesses. Second, he averred that appellant had given him settlement authority with respect to several of the appellees, but, after substantial settlement negotiations had taken place, suddenly withdrew authority to settle with any appellee. Finally, Krause reasoned that appellant had become irate and belligerent on the telephone with him and his staff. Appellant did not dispute these facts at the hearing or in her lengthy response to Krause’s motion. To the contrary, appellant’s response suggested an apparent hostility toward Krause and his representation of her in her case. Under these circumstances, we agree that Krause demonstrated good cause for being relieved as counsel.

Turning to the specific requirements of Rule 64, we observe that the trial court gave appellant sixty days to obtain new counsel, and she did so. Krause indicated his willingness to hand over all papers and literature to appellant’s new attorney, and, at the May 31, 1995, hearing, attorney Burkhardt indicated that Krause had in fact sent her the twenty boxes of files relating to appellant’s case. When the trial court announced its intention to conduct a pretrial conference in September or October of 1995, attorney Burkhardt offered, “If I can’t do it in that time, Judge, I can’t do it.” Moreover, it was undisputed that appellant had not paid Krause any fees for his services. Considering these facts, we cannot see how appellant was prejudiced by Krause’s withdrawal, and we must further conclude that the trial court properly followed Rule 64 in this case.

Dismissal with prejudice

We turn now to the question of whether the trial court abused its discretion in dismissing appellant’s case with prejudice. In concluding that dismissal was the appropriate sanction, the trial court relied in part on ARCP Rule 37, which allows for sanctions, including dismissal of a cause of action, for failure to make discovery. The imposition of sanctions for the failure to make discovery rests in the trial court’s discretion. Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992). We have often upheld the trial court’s exercise of discretion in granting severe Rule 37 sanctions for flagrant discovery violations. Id., Rodgers v. McRaven’s Cherry Pickers, Inc., 302 Ark. 140, 788 S.W.2d 227 (1990). For example, we have affirmed dismissals with prejudice for failing to answer interrogatories, Dunkin v. Citizens Bank of Jonesboro, 291 Ark. 588, 727 S.W.2d 138 (1987), and for failing to attend one’s own deposition. Cagle v. Fennel, 297 Ark. 353, 761 S.W.2d 926 (1988). Other jurisdictions have affirmed dismissals for failure to name expert witnesses. See e.g. Cruz v. Columbus-Cuneo-Cabrini Med. Ctr., 636 N.E.2d 908 (Ill. App. 1 Dist. 1994); Wahle v. Medical Center of Delaware, 559 A.2d 1228 pel. 1989).

Compliance with the rules of discovery is necessary in all cases, and is especially important in cases involving complex issues and multiple parties. We have a mechanism in place by way of ARCP Rule 16 that allows a trial court to call a conference of the attorneys in a case to consider certain issues. Following this conference, the trial court is to enter an order reciting the action taken at the conference. That order, when entered, is to control the subsequent course of the litigation. The primary purpose of the scheduling order is to keep litigation moving forward and to advise parties about the deadlines that they are expected to meet. See Perry v. Sera, 623 A.2d 1210, 1220 (D.C.App. 1993). Failure to meet these deadlines undermines the goals of the scheduling order and prejudices the other side, which is also subject to discovery deadlines. Id.

Indeed, one of the matters that may be considered under our Rule 16 is precisely the one addressed by the trial court in this case — the limitation of the number of expert witnesses. See ARCP Rule 16(4). The trial court entered two scheduling orders in which he set deadlines for naming and narrowing the list of experts. Appellant flatly ignored both of these orders, and offers us no rational justification for doing so. Instead, she complains that, because appellees failed to provide her with certain chemical formulas and research studies, she was unable to narrow her expert-witness list. We are not persuaded by her argument. We find no motion for order compelling discovery in the abstract. We agree with the trial court that appellant “should have come to the court for help” rather than expand her expert-witness list to forty-two persons in direct violation of repeated orders to narrow her list.

The trial court found that appellant’s pattern of conduct in ignoring its orders was for the improper purpose of harassing the appellees and delaying the litigation. Because the trial court was in a better position to judge the appellant’s actions, we cannot say that its dismissal constituted an abuse of discretion. While we recognize that dismissal is the most severe of sanctions, we are persuaded by the rationale of the District of Columbia Court of Appeals on this point:

[I]t is the plaintiff that is being sanctioned here. Appellant, as plaintiff, chose to utilize the court system to try to redress wrongs that had allegedly been done to her. When invoking such aid, a plaintiff should be prepared and willing to follow the rules that keep that system running in an orderly and efficient manner. Noncompliance with court orders and rules may cause the system to bog down and may adversely affect other litigants. When a plaintiff is personally responsible for this type of delay, he or she prejudices not only the defendant but also the ability of other persons — persons that are doing what is necessary to follow the rules — to utilize the system.

Perry, 623 A.2d at 1219 (footnotes omitted).

We have further recognized the inherent power of trial courts to dismiss a case for failure to pursue it with diligence. Florence v. Taylor, 325 Ark. 445, 928 S.W.2d 330 (1996). “[T]he trial judges in this state have an obligation to assure that their courts are conducted in an orderly and correct manner and that their courts are treated with respect and dignity.” Id. at 450. In Florence, we affirmed the trial court’s dismissal of a case with prejudice after appellants and their counsel had two unexcused failures to appear for trial.

In this case, after having been ordered repeatedly to narrow her list of experts for trial, appellant instead broadened it. Not only did appellant’s conduct result in unreasonable expense to the appellees, who were compelled to conduct discovery for nearly four years without substantial progress toward trial, her willful disregard of the trial court’s orders, like the appellants’ conduct in Florence, “flies in the face of the respect due our judicial system.” Id.

It is crucial to the American judicial system that trial courts retain the discretion to control their dockets. Thompson v. Erwin, 310 Ark. 533, 838 S.W.2d 353 (1992); Eason v. Erwin, 300 Ark. 384, 781 S.W.2d 1 (1989). For the foregoing reasons, we hold that the trial court’s detailed and well-reasoned order dismissing appellant’s case with prejudice was a proper exercise of its discretion.

The decision of the trial court is affirmed.

Newbern and Glaze, JJ., not participating.

Special Justices Carol Cannedy Dalby and Rex M. Terry join in this opinion.