text:
    CITY OF FORT SMITH v. O.K. FOODS, INC., and ARKANSAS PROTEINS, INC.
    87-104
    738 S.W.2d 96
    Supreme Court of Arkansas
    Opinion delivered October 26, 1987
    [Rehearing denied December 7, 1987.]

      Daily, West, Core, Coffman & Canfield, for appellant.

      Harper, Young, Smith & Maurras, by: Thomas Harper and Don A. Smith, for appellees and cross-appellants.
   John I. Purtle, Justice.

The issue on appeal is the validity of a Fort Smith ordinance which increased sewer user fees. The chancellor found that the ordinance was not valid until the city published it in a local newspaper and in its decree awarded the appellees a partial refund of the increased sewer charges paid before that time. The city argues that the trial court erred in holding the ordinance was temporarily invalid and the appellees argue on their cross-appeal that the trial court erred in holding that the ordinance was ever enforceable. We affirm on direct appeal and reverse on cross appeal holding that the ordinance never had life breathed into it and that accordingly the cross-appellants are entitled to a refund of all the overcharges paid.

Fort Smith Ordinance # 62-83 was to be effective October 1, 1983, and was repealed on May 1,1986. On June 26, 1986, the appellees, O.K. Foods, Inc., and Arkansas Proteins, Inc., filed a complaint in the Sebastian County Court challenging the validity of the ordinance because Fort Smith failed to comply with the pre-enactment public hearing and notice requirements of Ark. Stat. Ann. § 19-4113 (Supp. 1985) as well as the post-enactment requirements of Ark. Stat. Ann. § 19-2404 (Repl. 1980). The appellees prayed for a refund of the increase in sewer rates paid pursuant to Ordinance § 62-83. The chancellor found that the city of Fort Smith did not substantially comply with § 19-4113 and § 19-2404 until the city published the ordinance in a local newspaper on February 15, 1985. The decree awarded O.K. Foods the sum of $282,324.98 and awarded Arkansas Proteins, Inc., $136,913.47 as refunds for the overcharge from October 1, 1983, to February 15, 1986.

Fort Smith asserts that it did not have to comply with the pre-enactment requirements of § 19-4113 because it was proceeding under Ark. Stat. Ann. §73-245 (Repl. 1979). Act 132 of 1933 (Ark. Stat. Ann. § 19-4101 et seq. (Repl. 1980 and Supp. 1985)) authorizes a city or town to operate a sewage collection system and establish rates charged for the service. The pertinent part of § 19-4113 relating to sewer rates, states:

After introduction of the ordinance fixing such rates or charges, and before the same is finally enacted, notice of such hearing, setting forth the proposed schedule of such rate or charges, shall be given by one publication in a newspaper published in the city or town, if there be such a newspaper, but otherwise in a newspaper having general circulation therein, at least ten days before the date fixed in such notice for the hearing, which may be adjourned from time to time. After such hearing the ordinance establishing rates or charges, either as originally introduced or as modified and amended, shall be passed and put into effect.

Act 132 of 1933 was very comprehensive and, as amended, still contains the only authority for a municipality to establish and change its fees for sewage services.

Act 324 of 1935 (Ark. Stat. Ann. § 73-201 et seq. (Repl. 1979)), which the city claims gave it the authority to change its sewer rates, is printed under the Arkansas Statutes relating to the regulation of public utilities. Section 73-245 states as follows:

Any municipality shall have the power, subject to provisions of this Act, to acquire by purchase or otherwise, or construct and operate a public utility plant and equipment, or any part thereof, for the production, transmission, delivery or furnishing, of any public service.

As amended by Act 25 of 1973, a public utility is defined in Act 324 of 1935 or Ark. Stat. Ann. § 73-201 (d) as follows:

(d) The term “public utility” when used in this Act includes persons and corporations, or their lessees, trustees and receivers, now or hereafter owning or operating in this state, equipment or facilities for:
(7) maintaining a sewage collection system and/ or a sewage treatment plant, intercepting sewers, outfall sewers, force mains, pumping stations, ejector stations and other appurtenances necessary or useful for the collection and/or treatment purification and disposal of the liquid and solid waste, sewage, night soil and industrial waste. Provided, nothing in this paragraph shall be construed to include sewerage facilities and equipment of cities and towns in the definition of public utility. [Emphasis added.]

It seems quite clear that the legislature cautiously amended the definitions of Act 324 of 1935 in order not to infringe upon or modify the power to set sewer rates previously granted to cities and towns. Certainly the legislature did not intend to grant additional authority to cities and towns to establish sewer rates subject to the review of the Public Service Commission.

The appellant correctly states that when acts of the legislature are cumulative to each other, providing alternative procedures for accomplishing the same purpose, the municipality may proceed under either act. Freeze, Mayor v. Jones & Harvel, 260 Ark. 193, 539 S.W.2d 425 (1976); City of Helena v. Arkansas Utilities Company, 208 Ark. 442, 186 S.W.2d 783 (1945). It is also true that both Act 324 of 1935 and Act 132 of 1933 gave municipalities different cumulative procedures for acquiring a sewage system. However, only Act 132 of 1933 gives a city the specific authority to set sewer rates and only Act 132 of 1933 provides a procedure for changing those rates. Fort Smith did not have alternative authority to change its sewer rates under Act 324 of 1935 and ignore the pre-enactment notice and public hearing requirements of Act 132 of 1933.

Fort Smith also claims it did not have to comply with the post-enactment requirements of § 19-2404 because Ordinance #62-83 was not general or permanent. Section 19-2404 states:

All by-laws or ordinances after their passage shall be recorded in a book kept for that purpose and shall be authenticated by the signature of the presiding officer of the governing body and the clerk or recorder, and all bylaws or ordinances of a general or permanent nature and all those imposing any fine, penalty or forfeiture, shall be published in some newspaper of general circulation in the corporation; provided, in incorporated towns where no newspaper is published written or printed notice posted in five [5] of the most public places in said corporation and shall be deemed a sufficient publication of any law or ordinance for the incorporated towns, and it shall be deemed a sufficient defense to any suit or prosecution of such fine, penalty or forfeiture to show that such publication was made.

Ordinances of general nature are those which are general and uniform in their application. Ordinances which endure until repealed are permanent. Adams v. Sims, 238 Ark. 696, 385 S.W.2d 13 (1964); City of El Dorado v. Citizen’s Light and Power Co., 158 Ark. 550, 250 S.W.2d 882 (1923). The ordinance in dispute here applied to all commercial and residential customers and obviously would remain in force until repealed. Therefore, the ordinance was both permanent and general and the post-enactment publication was mandatory.

On the cross-appeal, O.K. Foods, Inc., claims its judgment should have been $549,929.18 and Arkansas Proteins, Inc., claims its judgment should have been $252,341.56. The appellees argue that since Ordinance # 62-83 was never valid due to Fort Smith’s failure to substantially comply with the pre-enactment requirements of § 19-4113, and post-enactment requirements of § 19-2404, they were entitled to all their overpayments for sewage service until a new ordinance became effective on May 1, 1986.

Municipalities being creatures of the legislature can exercise only that power which is granted to them by it. City of Hot Springs v. Gray, 215 Ark. 243, 219 S.W.2d 930 (1949). Under § 19-4113 the legislature authorizes municipalities to establish, maintain, and adjust rates for sewer services by ordinance, requiring pre-enactment notice and a public hearing. Also post-enactment publication of all general or permanent ordinances is mandatory under § 19-2404. Since neither requirement was complied with in the present case, the ordinance was never valid. There is no constitutional provision or amendment which would allow Fort Smith to ignore § 19-4113and§ 19-2404 when establishing or changing its sewer rates.

The case will be affirmed on direct appeal and reversed on cross appeal. It is remanded with instructions to the court to enter judgment for appellee in the amount of the overpayment from October 1, 1983, until the new ordinance became effective on May 1,1986. The voluntariness of the payment of the increased rates as a bar to refund was not raised or argued in the case before us and the presentation of such a defense is not precluded in any further litigation. See City of Little Rock v. Cash, et al., 277 Ark. 494, 644 S.W.2d 299 (1982).

Affirmed on direct appeal and reversed and remanded on cross appeal.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    UNION NATIONAL BANK OF LITTLE ROCK v. Leona M. THORNTON, Lynn D. NOLEN, and Edward L. MUNSON
    87-159
    738 S.W.2d 103
    Supreme Court of Arkansas
    Opinion delivered October 26, 1987

      Wilson & Associates, P.A., by: Oían W. Reeves and William T. Finnegan, for appellant.

      Hatfield, Robinson, Hodges, Staley, Marshall, Jordan & Shively, by: Robert L. Robinson, Jr., for appellees Thornton and Nolen.

      Edward L. Munson, pro se.
   Steele Hays, Justice.

Union National Bank of Little Rock has appealed from the dismissal of its complaint by the Pulaski Circuit Court based on improper venue and lack of jurisdiction over the defendants.

Leona Thornton, appellee, had originally brought suit in Oklahoma seeking compensatory and punitive damages from Union National Bank for allegedly pursuing a course of harassment toward her. Appellees Nolen and Munson are attorneys who represented Ms. Thornton in that litigation, filed initially in state court in Muskogee County, Oklahoma, and later removed to the United States District Court for the Eastern District of Oklahoma. That litigation ended in a verdict for the bank after deliberation by the jury lasting only six minutes.

Thereafter, the bank filed this suit in Pulaski County naming Ms. Thornton and her attorneys as defendants and alleging malicious prosecution and abuse of process. The defendants moved to dismiss the action based on improper venue, the absence of in personam jurisdiction and failure to state facts upon which relief could be granted. See ARCP Rule 12(b)(2), (3), and (6). The trial court granted the motion based on improper venue and lack of jurisdiction and the bank has appealed. We affirm.

We need not discuss the issue of venue as it is quite clear that no basis existed by which Arkansas could assert jurisdiction in personam over any of the three defendants. All were Oklahoma residents and had no contacts with this state that would give rise to personal jurisdiction. Two of the appellees, so far as this litigation is concerned, had never set foot in Arkansas, although appellee Munson did depose one of the bank’s employees in Little Rock during the course of the Oklahoma litigation. But we do not regard that as a material development within the context of this case.

The relations between Ms. Thornton and the bank began when Ms. Thornton, an Oklahoma resident, assumed the balance of a note originally made in Oklahoma by Oklahoma residents payable to Modern American Mortgage Corporation. The note was secured by a mortgage on Oklahoma real property. The note and security were later acquired by the bank. Ms. Thornton mailed her monthly payments to the bank at Little Rock and it maintained an escrow account to cover taxes and insurance.

The bank maintains that Ark. Stat. Ann. § 27-2502(C) (1) (e) renders the defendants amenable to suit in Arkansas by causing tortious injury in this state by an act done outside this state while Ms. Thornton was transacting business in this state, namely, sending her monthly payment to the bank over the past several years and by maintaining an escrow account at the bank in Little Rock. We disagree.

The language of the cited section from the Uniform Interstate and International Procedure Act [Ark. Stat. Ann. § 27-2501 — § 27-2507 (Repl. 1979)] contemplates a more significant connection by a nonresident than merely mailing monthly payments to a location in Arkansas. The act speaks in terms of “if he regularly does or solicits business in this State” or “engages in any other persistent course of conduct in this State,” or “derives substantial revenue from goods consumed or services used in this State.” (Our italics).

The bank has cited us to nothing that would support the premise that such minimal contacts as Ms. Thornton had with Arkansas as mailing her payments here rendered her subject to personal jurisdiction in tort and we can conceive of no authority for such a holding. Mountaire Feeds, Inc. v. Agro Impex, 677 F.2d 651 (8th Cir. 1982); Hutson v. Fehr Bros. Inc., 584 F.2d 833 (8 th Cir. 1979). Nor do we regard the taking of a single deposition in connection with pending out-of-state litigation as sufficient to expose an attorney to personal jurisdiction on these facts. Arkansas Poultry Co-op. Inc. v. Red Barn Sys., Inc., 468 F.2d 538 (8th Cir. 1972).

The law requires that the exercise of in personam jurisdiction over nonresidents as asserted here must be consistent with the due process clause of the Fourteenth Amendment to the United States Constitution. That entails activities more extensive than any shown to have occurred in this case. Hanson v. Denckla, 357 U.S. 235 (1958); International Shoe Company v. Washington, 326 U.S. 310 (1945). That requirement necessitates that we affirm the trial court’s order of dismissal in this case.

Affirmed.


text:
    Nelda WILLIAMS v. FIRST SECURITY BANK OF SEARCY, ARKANSAS, as Administrator of the Estate of Brenda Marie PAYNE, Deceased, et al.
    87-116
    738 S.W.2d 99
    Supreme Court of Arkansas
    Opinion delivered October 26, 1987

      Margaret Bunn of Odell Pollard, P.A., for appellant.

      The McMath Law Firm, Art Anderson, and Jim Petty, for appellee.
   Steele Hays, Justice.

This wrongful death action was brought by the administrator and family of Brenda Payne, who died after being struck by an automobile driven by appellant Nelda Williams. The accident occurred at night during a misty rain. Mrs. Payne was walking on the right side of Highway 36 with her back to east bound traffic. Mrs. Williams was driving east and did not see Mrs. Payne until an instant before the impact. The right front of the Williams car struck Mrs. Payne, knocking her to the side of the road, and causing the injuries from which she expired some three hours later. The jury awarded Mrs. Payne’s husband and two children $75,000 each and $ 10,000 to the estate. Mrs. Williams brings this appeal.

Appellant’s primary argument for reversal is the trial court erred in refusing to direct a verdict for the defendant or to enter judgment notwithstanding the verdict because there was no substantial evidence to establish the defendant’s negligence. We have held that a directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable persons could find for the plaintiff. The trial judge must give to the non-movant’s evidence its highest probative value, taking into account all reasonable inferences that may be deduced from it. On appeal we will not reverse if there is any substantial evidence on which the jury could have based a finding of negligence. Flynn v. McIlroy Bank & Trust Co., 287 Ark. 190, 697 S.W.2d 114 (1985); Kelly s. Cessna, 282 Ark. 408, 668 S.W.2d 944 (1984).

The first officer at the scene testified that Mrs. Payne’s body was found on the shoulder of the highway at a point where a curve in the highway began. He said there was no fog, that there was visibility for about a quarter of a mile and that he had no trouble seeing the road. He testified that Mrs. Payne was wearing a light coat. Another witness who drove past Mrs. Payne on the highway just before the accident said she could see her walking on the shoulder of the road and wearing a white or light-colored sweater. The witness further testified she could see Mrs. Payne for about four or five blocks without difficulty, did not remember any fog that night, and saw Mrs. Payne in time to have stopped even at fifty miles per hour. The treating physician said the impact had resulted in serious injuries, the equivalent of a fall from a ten-story building.

Pedestrians as well as motorists are entitled to use the public highways and each must act with regard to the presence of the other. The driver of a motor vehicle must anticipate the presence of pedestrians on streets and highways and use ordinary care to avoid injuring them. Kelly v. Cessna, supra; Thomas, Spec. Adm’r v. Newman, 262 Ark. 42, 553 S.W.2d 459 (1977). The driver has a duty to anticipate the presence of pedestrians on the highway and a duty to keep a lookout. Kelly, supra; Yocum v. Holmes, 222 Ark. 251, 258 S.W.2d 535 (1953).

Under the facts presented to the jury it was a reasonable inference that Mrs. Payne was visible to oncoming motorists and that Mrs. Williams had failed to keep a proper lookout for pedestrians on or near the road. The appellee’s case was strengthened by Mrs. Williams’s testimony that she did not see Mrs. Payne until she was a car length from her and that she was concentrating on keeping her hood ornament aligned with the white line on the right-hand side of the highway. Additionally, a driver who passed in the opposite direction as the accident occurred testified that Mrs. Williams made no attempt to stop or avoid the collision and the officer who investigated the accident testified he found no skid marks behind Mrs. Williams’s car.

These additional facts provide further proof from which the jury could find that appellant was not keeping a lookout for pedestrians and did not see Mrs. Payne until almost the moment of impact. We stated in Kelly, supra, that the fact that the driver did not see the pedestrian until immediately before the impact is substantial evidence that he was not keeping a proper lookout for pedestrians.

Appellant next argues the trial court erred by refusing to instruct the jury that Arkansas Highway Department safety rules require that pedestrians on state highways travel on the left side of the highway. The appellant proffered the following instruction:

The safety rules of the Arkansas Highway Department require pedestrians to travel on the left side of the highway.

The trial court refused the instruction because there was no evidence that such a regulation exists. Appellant relies on two cases which allude to a requirement that pedestrians walk on the left of the highway. In Snow v. Riggs, 172 Ark. 835, 290 S.W. 591 (1927) we said that while the Highway Department was authorized to make certain rules and regulations for motor vehicles, the statutory authorization in that case did not encompass the authority to make regulations for pedestrians and specifically not the rule at issue in that case — that pedestrians walk on the left, facing traffic. Therefore we held the rule was of no effect. In Haralson v. Jones Truck Lines, 223 Ark. 813, 270 S.W.2d 892 (1954), we mentioned only in dicta that the victim was walking on the left side of the highway “as recommended by the safety rules of the Highway Department.” Given the finding in Snow, that the “rule” was later mentioned only in dicta as a recommendation by the Highway Department, and that the appellant presented no evidence that a rule of the Highway Department existed which required pedestrians to walk on the left, there was no basis for appellant’s instruction as offered.

We should note that we stated in Haralson, supra, that one who walks on the right-hand side of the street, with his back to traffic, is not necessarily guilty of contributory negligence. A fair interpretation of this statement would be that walking on the right with one’s back to the traffic may be some evidence of negligence. However, this was not the instruction requested. Where a party is entitled to an instruction on an issue but requests an erroneous instruction, he may not complain of failure to charge on the subject. Newman v. Peay, 117 Ark. 579, 176 S.W. 143 (1915). It is a party’s duty to prepare and request a correct instruction. Bovay v. McGahhey, 143 Ark. 135, 219 S.W. 1026 (1920). A trial court need not give an instruction which needs explanation, modification or qualification. Dodson Creek, Inc. v. Fred Walton Realty, 2 Ark. App. 128, 620 S.W.2d 947 (1981); Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W.2d 304 (1948).

Another contention is that the trial court erred when it refused to instruct the jury on the legal definition of sidewalk. The requested instruction reads:

The definition of sidewalk is that portion of a street between the curb lines, or the lateral lines of a roadway and the adjacent property lines intended for the use of pedestrians. Ark. Stat. Ann. § 75-412(d).

Appellant argued this instruction should be given as it states where pedestrians are supposed to be in relationship to a highway or road and informs the jury as to the victim’s duty in this case. We disagree with appellant’s interpretation of this statute, or its application to this case. This statute is part of the Motor Vehicle Act of 1937, and defines six terms such as “roadway,” “highway” and “sidewalk.” These definitions do not set out rules for either pedestrians or motorists, but merely define the terms which appear throughout the act. The phrase, “intended for pedestrian use,” is merely descriptive and not directive. Even if we were to allow this definition in to show there was an area provided for pedestrians to walk, there simply was no evidence presented in this case that the shoulder of the road where the accident occurred was intended to be used by pedestrians, either by law or by custom. As the instruction had no application to the facts in this case it was not error to refuse it.

As her last point, appellant contends the trial court erred when it allowed the jury to take a document not admitted in evidence into the jury room during deliberations. The appellee’s last witness was Dr. Ralph Scott, an economics expert who testified as to the financial impact occasioned by the death of Mrs. Payne. During his testimony he wrote certain figures on a large tablet to aid the jury in understanding his testimony. During the deliberations the jury asked for these sheets and, over appellant’s objections, the court allowed the jury to have them for its further deliberations. Appellant contends this was prejudicial error because the jury could focus on the “bottom line” of Scott’s testimony rather than his underlying testimony and it placed undue emphasis on one aspect of the case — damages. Appellant cites no authority for what she claims as prejudice, or that the practice of letting the jury take exhibits into the jury room is even error. Our cases show that such actions are not necessarily error and there are valid reasons to allow the jury to view certain exhibits during deliberation.

While we have made a distinction between evidence admitted and not admitted which is taken into deliberation by the jury, see Dickerson Construction Co., Inc. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979), that is not the determining factor. Rather, if the item is an accurate reflection of the testimony that will be a legitimate memory aid to the jury and affords no prejudice to the opposing party, we have found it within the discretion of the trial court to allow it. Swanson v. Johnson, 212 Ark. 340, 205 S.W.2d 340 (1947); Hickman v. Ford & Co., 43 Ark. 207 (1884).

In Dodwell v. Mound City Sawmill Co., 90 Ark. 287, 119 S.W. 262 (1909), a suit to recover on a promissory note, the trial court granted the jury’s request to take into the jury room, the note sued on and other documents involved in the suit. On the issue of prejudice, we said:

The authenticity of these papers was not questioned, and there was not a particle of testimony or a suggestion to impeach their contents. These papers had been exhibited to and examined by the jury during the progress of the trial. The inspection of the papers by the jury afterwards in the jury room could not under these circumstances have had any prejudicial effect. To imagine any such vitiating effect in this case by the inspection by the jury of these papers in the jury room would involve the impeachment of the capacity and the intelligence of the jurors to discharge the functions of their office.

To the same effect, see Eackles v. Perry-Austen Bowling Products, Inc., 275 Ark. 235, 628 S.W.2d 869 (1982). In determining that no prejudice resulted from this incident, we note that the matter dealt with an issue which was not in testimonial dispute, as with the issue of liability for example. See People v. Martinez, 82 Cal. App. 3d 1, 147 Cal. Rptr. 208 (1978). Here there was no contention that the figures given to the jury were not exactly what the witness had testified to, nor had the appellant even objected to or contested the accuracy of any of the figures when they were presented by the witness. The figures were a legitimate memory aid for the jury and there was no abuse of discretion by the court in allowing the jury to review the figures.

Affirmed.


author: Jack Holt, Jr., Chief Justice.

text:
    ARKANSAS WRITERS’ PROJECT, INC. v. Charles D. RAGLAND, Commissioner of Revenue of the State of Arkansas
    85-115
    738 S.W.2d 402
    Supreme Court of Arkansas
    Opinion delivered November 2, 1987

      House, Wallace & Jewell, by: Anne Owings Wilson, for appellant.

      Wayne Zakrzewski, Revenue Legal Counsel, for appellee.
   Jack Holt, Jr., Chief Justice.

At issue is whether or not this court will exercise jurisdiction over the appellant’s 42 U.S.C. §§ 1983 and 1988 claims.

This case has a long history. Seven years ago, in 1980, the appellee, state, assessed appellant, Writers’ Project, on the sales of its Arkansas Times Magazine. Appellant initially contested the assessment but reached a settlement with the state and began to pay the tax. However, appellant reserved the right to renew its challenge if there were a change in the tax law or a court ruling bringing the tax into question. The Supreme Court’s ruling in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983), brought the tax back into question. In 1984, appellant filed a complaint in the Chancery Court of Pulaski County asking that it be declared exempt from the tax and for relief under 42 U.S.C. §§ 1983 and 1988. In March of 1985, Chancellor Bruce Bullion granted exemption by summary judgment in favor of appellant on state statutory grounds, ignoring the §§ 1983 and 1988 issues. We reversed on statutory grounds, Ragland v. Arkansas Writers’ Project, Inc., 287 Ark. 155, 697 S.W.2d 94 (1985), and, on rehearing, on federal constitutional grounds, 287 Ark. 155, 698 S.W.2d 802 (1985). In 1987, the Supreme Court reversed this court and held that the tax was unconstitutional. The most telling paragraph of the opinion of the Court provides:

If articles in Arkansas Times were uniformly devoted to religion or sports, the magazine would be exempt from the sales tax under § 84-1904(j). However, because the articles deal with a variety of subjects (sometimes including religion and sports), the Commissioner has determined that the magazine’s sales may be taxed. In order to determine whether a magazine is subject to sales tax, Arkansas’ “enforcement authorities must necessarily examine the content of the message that is conveyed. ...” FCC v. League of Women Voters of California, 468 U.S. 364, 383, 104 S. Ct. 3106, 3119, 82 L. Ed. 2d 278 (1984). Such official scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment’s guarantee of freedom of the press. See Regan v. Time, Inc., supra, at 648, 104 S. Ct. at 3266.

Arkansas Writers’ Project, Inc. v. Ragland, 107 S. Ct. 1722, 1728 (1987).

The court remanded the case for the purpose of having this court decide whether the courts of Arkansas should exercise jurisdiction under appellant’s 42 U.S.C. § 1983 claim and award attorney fees under 42 U.S.C. § 1988, stating:

The parties recognize that federal and state courts have concurrent jurisdiction over actions brought under § 1983, see, e.g., Martinez v. California, 444 U.S. 277, 283 n. 7, 100 S. Ct. 553, 558 n. 7, 62 L. Ed. 2d 481 (1980), although the Tax Injunction Act, 28 U.S.C. § 1341, ordinarily precludes federal courts from entertaining challenges to the assessment of state taxes. The parties disagree, however, on whether the state court must exercise jurisdiction in such cases. We leave it to the court on remand to consider the necessity of entertaining this claim.

Arkansas Writers’ Project, Inc., 107 S. Ct. at 1730.

Arkansas courts in the past have recognized and exercised jurisdiction over § 1983 claims. See Burden v. Hayden, 275 Ark. 93, 627 S.W.2d 555 (1982); Jaggers v. Zolliecoffer, 290 Ark. 250, 718 S.W.2d 441 (1986); Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987); Home Indemnity Co. v. City of Marianna, 291 Ark. 610, 727 S.W.2d 375 (1987). We entertain jurisdiction of the appellant’s § 1983 claim in this instance. Accordingly, we remand this claim to the trial court to fix appropriate attorneys’ fees pursuant to § 1988.

Remanded.

Glaze, J., not participating.


text:
    Bob BRITTON v. Sharyn Britton FLOYD
    87-157
    738 S.W.2d 408
    Supreme Court of Arkansas
    Opinion delivered November 2, 1987

      Daily, West, Core, Coffman & Canfield, by: Wyman R. Wade, Jr., for appellant.

      Office of General Counsel Arkansas Department of Human Service, by: G. Keith Griffith, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal is from a judgment awarding child support arrearages. The issue on appeal concerns the interpretation of the Arkansas Revised Uniform Reciprocal Enforcement of Support Act, codified at Ark. Stat. Ann. §§ 34-2401 — 34-2442 (Supp. 1985), where conflicting child support awards were imposed by an Arkansas court and a court of another state.

The appellant, Bob Britton, and the appellee, Sharyn Britton Floyd were divorced on December 4, 1979. Floyd was granted custody of the couple’s two children, and Britton was ordered to pay $44 per week for the support of his minor children. A judgment was entered against Britton on October 28, 1981, for arrearages in child support in the amount of $1,227.00, at which time the chancellor ordered future child support payments modified from $44 per week to $20 per week per child.

In November, 1983, Floyd filed a complaint in Sebastian Chancery Court for support under the Uniform Reciprocal Enforcement of Support Act (URES A). Kansas was the responding state since Britton was domiciled in Wichita. The Kansas court, on February 6,1984, ordered Britton to pay $50 per month in child support.

In December, 1984, Floyd petitioned the Sebastian Chancery Court for an order to show cause for failure to pay child support according to the Arkansas court order of October 28, 1981, alleging Britton was now in arrears in the sum of $3,867.37. Britton answered that Floyd submitted the support issue to the Kansas court and he was in compliance with that court’s order. Britton did not appear for the hearing; however, the chancery court took no action. The matter was dismissed without prejudice on December 31,1985, as Floyd failed to request or take further action on her petition.

On October 10,1986, the Arkansas Child Support Enforcement Unit filed a motion for judgment alleging the June 23,1981 judgment remained unpaid and that Britton was in arrears $6,645.87 in child support since that date. The motion also averred that Britton was in a position to inherit substantial funds from an estate and that these funds should be made subject to lien.

During a hearing on November 6,1986, the parties reached an agreement which resulted in the chancellor ordering, in part, that Britton’s child support obligation remain at $20 per week, Floyd was to be granted judgment against Britton for past due child support in the sum of $7,000, and that a portion of Britton’s interest in an estate in the sum of $7,000 be paid into the registry of the court. It was further agreed by the parties and the court that the parties’ settlement and the resulting court order would be subject to Britton’s reservation of a defense that his constitutional right to due process had been violated.

The chancellor entered his order and judgment, based on the November 6th proceedings, on February 6, 1987. During the interim, Britton filed a formal response to the Arkansas Child Support Enforcement Unit’s motion for judgment, acknowledging his debt for the 1981 judgment ($1,227), but denying any arrears from the date of that judgment since the Kansas order modified the Arkansas award of child support. In this pleading, Britton raises several additional defenses, including laches.

Britton claims that he is not liable for $7,000 in arrearages inasmuch as the Kansas court order modified the Arkansas award of support from $20 per week per child to $50 per month; that he has complied with this order and that it is entitled to full faith and credit in the Arkansas courts. By arguing modification and compliance, he in fact, takes the position that the Kansas court order nullifies the previous support order of the Arkansas court and that the Kansas court order is now entitled to full faith and credit. We disagree.

Ark. Stat. Ann. § 34-2431 provides:

A support order made by a court of this State pursuant to this Act does not nullify and is not nullified by a support order made by a court of this State pursuant to any other law or by a support order made by a court of any other State pursuant to substantially similar Act or any other law, regardless of priority of issuance, unless otherwise specifically provided by the court. Amounts paid for a particular period pursuant to any support order made by the court of another State shall be credited against the amounts accruing or accrued for the same period under any support order made by the court of this State.

When considering the application of a statute, this court must construe the statute just as it reads when the legislative intent is clear from the words used. City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977); Vault v. Adkisson, 254 Ark. 75, 491 S.W.2d 609 (1973).

The Kansas court proceedings are not a part of the record, thus, we are unable to determine whether the Kansas court order nullified the Arkansas court order. Our statute clearly provides that a subsequent order does not nullify a prior order unless specifically provided by the court and that payments pursuant to another court’s order are treated as credits against the original order. The Arkansas court gave full faith and credit to the Kansas court order because the Kansas payments were properly credited in reduction of the Arkansas obligation. See Luckes v. Luckes, 262 Ark. 770, 561 S.W.2d 300 (1978).

Britton further claims that Floyd should be barred by laches from pursuing her claim of arrearages. We do not reach this issue for it was not preserved for appeal. The chancellor provided in his order:

7. The agreements of the parties is entered into subject to the Defendant Britton’s reservation of defense in this case, and reservation of other causes of action that Defendant may file. Specifically the Defendant Britton contends that his constitutional right to due process under the fourteenth amendment of the United States Constitution has been violated by the Plaintiffs use of the Uniform Reciprocal Enforcement of Support Act to obtain an Order for support through a Court in the State of Kansas, in an amount different than that set by this Court, so that he has conflicting obligations, and then enforcing the original Order through this Court. Further, the Defendant Britton contends that Michael C. Carter as executor of the estate of Ada Elizabeth McFadden was not properly served with process and this action.

Britton first raised this issue in a pleading after the court’s hearing and pronouncements of judgment on November 6,1986, but prior to the court’s entry of its judgment of record on February 6, 1987. The court, in its order and judgment on February 6, 1987, made no reference to a reservation of the affirmative defense of laches.

Although it may be argued that this issue was raised during the proceedings, we do not consider it on appeal since the matter was not brought to the attention of the trial court for ruling. The burden to obtain a ruling is on the movant, and questions left unresolved are waived and may not be relied upon on appeal. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986); Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972); Richardson v. State, 292 Ark. 140, 728 S.W.2d 510 (1987).

Affirmed.


author: Jack Holt, Jr., Chief Justice. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    Larry G. MILLIGAN v. GENERAL OIL COMPANY, INC.
    87-151
    738 S.W.2d 404

    Supreme Court of Arkansas
    Opinion delivered November 2, 1987

      Hively & Ketz, by: Wesley J. Ketz, Jr., for appellant.

      Highsmith, Gregg, Hart, Farris & Rutledge and Wright, Lindsey & Jennings, for appellee.

      Justice Hickman’s concurring and dissenting opinion may be found at 740 S.W.2d 908.

   Jack Holt, Jr., Chief Justice.

At issue in this action is whether the appellee’s above ground gasoline storage tanks constitute a nuisance.

Appellee General Oil Company, Inc. (“General Oil”) operates a convenience store/gasoline service station, in a predominantly commercial location approximately five miles south of Batesville. The business fronts on the east side of Highway U.S. 167 in the community of Southside. There are several fuel pumps placed in front of the store and four above ground gasoline storage tanks with a total capacity of 21,000 gallons located approximately fifty-seven feet behind. The storage tanks have been in their present location for at least 14 years.

Appellant Larry Milligan (“Milligan”) has operated a grocery store which is south of and adjacent to General Oil’s location since 1983. His store also fronts Highway U.S. 167 and is located approximately eighty-one feet from General Oil’s storage tanks. The ground slopes naturally downhill from the General Oil property to the grocery store property.

On April 17, 1986, Milligan filed suit in Independence County Chancery Court alleging that because of numerous incidents of fuel spillage, the storage tanks constituted a private and public nuisance. He asked for a permanent injunction to abate the alleged nuisance and for damages. In his decree on February 10, 1987, the chancellor found that the storage tanks did not constitute a nuisance or warrant an injunction. The chancellor awarded Milligan $1,000.00 as compensation for damages caused by the negligence of General Oil’s employees in allowing fuel to escape into the grocery store parking lot and for the time and effort Milligan expended in cleaning up debris that General Oil had washed upon his land.

From the judgment of the chancery court, Milligan appeals. General Oil cross-appeals on the ground that the trial court erred in awarding $1,000.00 in damages to Milligan.

Although chancery court cases are reviewed de novo on the record, the findings of the chancellor will not be set aside unless they are found to be clearly erroneous. Ark. R. Civ. P. 52(a); Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). Since the question of the preponderance of the evidence turns to a large extent on the credibility of the witnesses, we should give deference to the chancellor. Under the circumstances, we cannot say the findings of the Chancellor were clearly erroneous.

“Nuisance is defined as conduct by one landowner which unreasonably interferes with the use and enjoyment of the lands of another and includes conduct on property which disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property.” Ark. Rel. Guidance Fdn. v. R. J. Needler, 252 Ark. 194, 477 S.W.2d 821 (1972). “Equity will enjoin the conduct which culminates in a private or public nuisance where the resulting injury to the nearby property and residents, or to the public, is certain, substantial, and beyond speculation and conjecture.” Id. The distinction between private and public nuisance is simply the extent of the injury, i.e. the number of persons suffering the effects of the nuisance. Id.

The mere diminution in the value of property or of the business by the nuisance, without irreparable injury, will not furnish sufficient cause for equitable relief. Gus Blass Dry Goods v. Reinman, 102 Ark. 287, 143 S.W. 1087 (1912). “The nuisance must be of a consistent, recurring and permanent nature, and from such nuisance there must flow injuries causing substantial, tangible and material discomforts and inconvenience, which result in a loss of health, loss of trade, partial but substantial destruction of business or the ruin of property, and the deprivation of its use and enjoyment to a material and substantial extent, before a court of equity will interfere by injunction to restrain the maintenance of, or to abate the alleged evil.” Id.

It is well settled that a filling station is not a nuisance per se. See Phillips v. Adams, 228 Ark. 592, 309 S.W.2d 205 (1958); Moore v. Wallace, 191 Ark. 511, 56 S.W. 1111 (1935). It has also been held that storage of fuel does not constitute a nuisance per se. Hilliard v. Shuff, 260 La. 384, 256 So.2d 127 (1971). However, such storage may be a nuisance if it creates a substantial likelihood of fire or explosion in the future. See Phillips v. Allingham, 38 N.M. 361, 33 P.2d 910 (1934). The mere fear or apprehension of danger from fire or explosion due to the existence of gasoline storage tanks does not, in and of itself, justify injunctive relief. Id.

Since storage tanks cannot be considered a nuisance per se, the burden is upon the complaining party to show that it is a nuisance in fact by clear and satisfactory evidence. Flippin v. McCabe, 228 Ark. 495, 308 S.W.2d 824 (1958). Whether or not General Oil’s storage tanks constitute a nuisance is largely a question of fact. Phillips v. Adams, supra. The chancellor held that the mere fear of apprehension of danger from fire explosion due to the existence of gasoline storage tanks without more is not sufficient to justify an injunction and that it is necessary to show a reasonable certainty that such results are actually threatened, rather than merely anticipated. We agree. The storage tanks have been in their present location for at least 14 years. Interruption to Milligan’s business caused by gas spills or other activities has been infrequent and temporary in nature. Likewise, General Oil has been in substantial compliance with the rules and regulations of the State Fire Marshal’s Office pertaining to above-ground storage tanks, and there is no substantial proof that General Oil’s activities resulted in pollution. In short, the proof does not support the claim that General Oil was using its property in an unreasonable, unwarranted, or unlawful manner. Injunctive relief is not warranted by the circumstances.

On cross-appeal General Oil contends that the chancellor erred in awarding Milligan $1,000.00 in damages in that the record is void of any evidentiary basis for the award. We likewise agree. Under our law, a party seeking damages has the burden of proving his claim, and if no proof is presented to the trial court that would enable it to fix damages in dollars and cents, the court cannot award damages. Winkle v. Grand Nat’l Bank, 267 Ark. 123, 601 S.W.2d 559 (1980).

The sole testimony on the issue was from cross-appellee Milligan:

Q. What do you say your damages are?
A. Well, I really can’t put, I really can’t put a dollar figure on it, you know, I mean, I just can’t put a dollar figure on it.
Q. Okay, in our complaint we listed $20,000.
A. Right.
Q. Are you asking the judge for that much money today?
A. No, I’m just asking to get part of my money back, you know, that I’ve been out. I’m not —
Q. You’re asking the judge to reimburse you for your loss.
A. Yes, sir, I would like to have that.
Q. And for your time and labor of having to clean up the trash?
A. Well, I’d like to have that. It’d be nice.
Q. Right. And can you put an exact dollar figure on that?
A. On — ?
Q. Your loss of business?
A. No sir, I sure can’t.
Q. But you don’t have any doubt you’ve lost some business?
A. I don’t have any doubt that I’ve lost some, no, no doubt at all but I can’t say how much, no.
Q. You’re willing just to leave it up to the judge?
A. Yes, sir.

The only other evidence of damages is that Milligan repaved his parking lot. However, Milligan testified that the parking lot had been there for some time and the spilled gasoline did not cause all of the problem:

Q. But it’s your testimony and your contention that the occurrences in February of ’84 and December of ’84 and January 16th, ’85 were the only reasons you had to have your parking lot repaved?
A. No, Sir, I don’t believe I said that.
Q. Okay. What did you say?
A. I said it caused certain areas, you know to come up there. I’m not saying it caused the 100 percent of it. Maybe the parking lot had been there. I’m sure it had some damages already done to it, you know over the few years. I mean, I’m not saying, no, that’s what blowed up the whole parking lot, no. I didn’t say that, but I did say it helped a lot to do that.
Q. Are any of those incidences, those three incidences that occurred before you had your parking lot resurfaced, any of the ones you referred to when you said that raw product was running over your lot:
A. Repeat that.
Q. Let me ask it another way. Wouldn’t it be fair to say that on all three occasions before you had your lot repaved, the product was washed off by the fire department, so it was mixed with water?
A. I’d have to look at those dates and see and get lined back up on which — they’ve been so many I can’t keep up with them.
Q. Well, there were only three before you had your lot repaved.
A. The diesel come across there, the one spill was before, it was raw diesel went across there.
Q. That was when the pump was knocked over?
A. Yes.
Q. December 1st, 1984? And I think Mr. Candler testified, Arnold testified that these pumps were knocked over and they came out and washed the spill away? Do you remember that?
A. I’m not sure.
Q. Do you remember back on November 24th when I took your deposition over at Mr. Ketz’s office?
A. Yes, Sir.
Q. And do you remember me asking you about the status of your lot right now and how it looked?
A. Yes, Sir.
Q. And do you remember telling me, I asked you on page 45, “What’s the condition of your parking lot right now?” And your answer was, “To look at it right now, it looks pretty good because it’s packed.”
A. Yes.
Q. Is that still your testimony, it still looks pretty good?
A. Yes, Sir.
Q. So, all these occurrences that have happened since you’ve had it repaved, your lot still looks pretty good?
A. Just to look at it, it looks fairly well. But I don’t know how much breakdown to the oil, the contact in the gravel, I don’t know how much it’s broke down and I don’t know how long it’s going to last.
Q. But it looks pretty good to look at it?
A. To look at it, it look pretty good, but I don’t know have much it’s broke down.

As can readily be seen from the above quoted testimony, the chancellor could not have fixed damages with any degree of certainty. The damages were fixed only by sheer speculation. The chancellor erred in allowing Milligan $1,000.00 in damages. Therefore, we reverse this award on cross-appeal.

Affirmed in part; reversed in part.

Hickman and Hays, JJ., concur in part and dissent in part.

Glaze, J., agrees with majority on direct appeal but concurs with results reached on cross-appeal.

Purtle, J., dissents.

Darrell Hickman, Justice,

concurring in part and dissenting in part. I agree with the majority’s decision except for that part which strikes the chancellor’s award of $1,000 damages. If one reviews a record backwards, that is, contrary to accepted principles of appellate review, one could perhaps conclude that the chancellor’s finding was wrong.

But, our job is not to see if it was wrong; rather we look to see if there is any way to uphold it. We are bound to consider the evidence in a light most favorable to the appellee. E. I. DuPont Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).

The appellee proved that it cost $4,600 to repave his parking lot. While spillage of gasoline and diesel fuel by the appellant did not cause all of this damage, undoubtedly it was the main cause of the parking lot’s deterioration. The appellee testified as follows:

I didn’t say the occurrences in February, 1984 and December, 1984 and January 16, 1985 were the only reasons I had my parking lot repaved. I said it caused certain areas to come up there. I’m not saying it caused 100% of it. I’m sure it had some damages already. I’m not saying that’s what blowed the whole parking lot. I did say it helped a lot to do that. . . .
* * * *
The defendants had to re-cover their parking lot after this fire incident. They re-covered their parking lot the same time, the same day I re-covered mine. That was on November 6, 1985. I covered it with hot mix. It is a two inch covering. Whoever did my lot, they did theirs the same date. I filled some, tried to repair it, to put some concrete in or, I bought some “cold mix” like they rework the highway with, that fills holes, but the water and stuff coming down through there just kept it spewed up all the time. I finally just sealed it. It was a while after I moved in and started running the grocery store that I did any work on the parking lot. After I had bought the store, it had one little hole in it. That’s what I’m talking about, refixing it. It wasn’t any major cost like this was or anything. I didn’t do anymore work to it until I had it resurfaced.
I had some diesel running over it in December, 1984. It was about a year later in November, 1985, when I had it resurfaced. It just went to falling apart. After the spills went across it, I noticed it. I didn’t notice it the next day. It’s a pretty busy place. There is quite a lot of traffic. It just starts peeling a little. You’re there working every day. You don’t notice it. The first thing you know, you look out there and there’s a big hole. I’d say after the first spill, I started noticing it disintegrating about a month or two later. . .

Mark Lambert, an employee of the asphalt company that resurfaced the parking lot, testified as follows:

... I think you would have to determine how long the diesel and gas were in contact with the hot mix. The longer it’s on there, the more damage it’s going to do. There is no question that diesel and gas would be detrimental to the hot mix. I would say within a year or so, you would know if any deterioration was to become obvious.
The diesel or gas dissolves and washes away tar in the hot mix, the asphalt cement.

The trial judge could easily have concluded that at least $1,000 of the cost of repaving was attributable to the negligence of the appellant. I would, therefore, affirm the award.

Hays, J., joins.

John I. Purtle, Justice,

dissenting. The majority has added insult to injury in my opinion. The facts clearly establish that the appellee oil company continues to maintain above ground oil storage facilities which do not meet the minimum safety standards of the State Fire Code. State Fire Marshal Ray Carnahan testified that since 1965 the Code has required that storage tanks for flammable liquids be placed underground. Testimony indicates these tanks were placed in their present above ground location sometime between 1970 and 1973. In any event, above ground tanks are required to have a dike large enough to contain the spill of the largest tank in the compound. The present concrete block retaining wall or dike does not meet the safety requirements of the Code for above ground storage tanks. The state fire marshal, after inspecting this dike stated: “There are cracks in the mortar joints. Some of the mortar has given way or dropped out — It needs to be bigger. It also needs to be repaired so there is not any cracks in the mortar.” The fire marshal has referred this matter to the attorney general for appropriate action.

The local fire department has been called to the scene of these tanks at least nine times within a three year period. The danger of fire or explosion is ever present. Gasoline or diesel has overflowed onto the appellant’s property several times. After one such overflow the appellant felt compelled to resurface his driveway and parking area at a cost of $4,500. The dike has constant seepage and there is trash and grass which could easily cause a fire. The public, including school children, are constantly in the area and some even sit on the dike while waiting for the bus or other things.

I feel no need to set out in detail additional testimony and evidence which seems to me to compel reversal of this case. I feel confident the trial court was clearly erroneous in refusing to enjoin this nuisance which may well cause serious injuries or death or at least great property damage. The evidence was more than sufficient to support the damage award and most certainly required an injunction.


author: John I. Purtle, Justice.

text:
    Kimmy R. REDDING v. STATE of Arkansas
    CR 87-150
    738 S.W.2d 410
    Supreme Court of Arkansas
    Opinion delivered November 2, 1987

      Hurst Law Office, by; Larry Honeycutt, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven III, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

We granted review from the decision of the Court of Appeals, Division II, pursuant to Supreme Court Rule 29(6). The Court of Appeals had affirmed the conviction of appellant who had been tried for sale of a controlled substance. This trial resulted after the trial judge set aside the appellant’s guilty plea and sentence and granted a trial. We reverse the decision of the Court of Appeals and vacate the second sentence and reinstate the original sentence, which had been placed into execution before the change of plea was granted.

On December 20,1985, the appellant entered a guilty plea to three counts of delivery of a controlled substance and on that same day was sentenced to an eight year term and a fine of $ 1000. Also on the same day an order of commitment to the Department of Correction was issued and appellant was remanded to the custody of the sheriff for delivery to the Department of Correction. On January 2, 1986, while awaiting transportation to the Department of Correction, the trial court granted appellant’s motion to withdraw his guilty plea of December 20, 1985. Upon his subsequent trial he was given ten years and fined $10,000.

This appeal is from the conviction and resulting sentence at the trial. One point argued on appeal is that the trial court lost jurisdiction after it accepted the guilty plea, pronounced sentence and issued a commitment order remanding the appellant to the custody of the sheriff to be delivered to the Department of Correction. The Attorney General concedes that the trial court was without authority to vacate the original judgment and sentence. Since we agree with this argument we do not discuss the other issues raised on appeal. There is no right to appeal from a guilty plea.

The court, at any time before pronouncing sentence, may allow a defendant to withdraw his plea if it is fair and just to do so. However, a defendant has no right to withdraw a plea after it has been accepted by the court unless it is necessary to correct a manifest injustice. See A.R.Cr.P. Rule 26.1. A sentence is placed into execution when the court issues a commitment order unless the trial court grants appellate bond or specifically delays execution of sentence upon other valid grounds. Once a valid sentence has been put into execution, the trial court is without jurisdiction to modify, amend or revise it. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977). After the sentence is put into execution the power to change the sentence passes from the trial court to the executive branch of government. Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984).

In this case the sentence had already been pronounced and commitment issued before the trial court attempted to set the sentence aside. The trial court was without jurisdiction to do so and its order vacating the sentence was void. The case is remanded to the trial court with directions to reinstate the plea accepted and the sentence imposed on December 20, 1985.

Reversed and remanded.


author: Robert H. Dudley, Justice.

text:
    David ROGERS v. STATE of Arkansas
    CR 87-126
    738 S.W.2d 412
    Supreme Court of Arkansas
    Opinion delivered November 2, 1987
    [Rehearing denied December 7, 1987.]

      Robert A. Newcomb, for appellant.

      Steve Clark, Att’y Gen., by; Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The issue in this case involving the interpretation of the Omnibus DWI Act is when does a prior “offense” occur for purposes of penalty enhancement. A stipulation of facts between the appellant and the State shows that on May 11, 1986, the appellant operated his vehicle while intoxicated in violation of Ark. Stat. Ann. § 75-2503(a) (Supp. 1985). He had two prior convictions, one conviction on June 22, 1984, and the other on July 17,1985. The stipulation does not include the dates on which the prior offenses were committed. The trial court found the appellant guilty of “the third offense occurring within (3) three years of the first offense.” Ark. Stat. Ann. § 75-2504(b)(2) (Supp. 1985). We reverse because the State did not show that all three of the violations occurred within three years of the first violation. Instead, it only showed that all three convictions occurred within three years.

The State contends that an offense occurs on the date of the conviction, because the word “offense” is often equated with the word “conviction.” It is true that “offense” is often held to mean “conviction.” See Nail v. State, 225 Ark. 495, 283 S.W.2d 683 (1955); see also State v. Snyder, 30 N.M. 40, 227 P. 613 (1924); Carey v. State, 70 Ohio St. 121, 70 N.E. 955 (1904); State v. Midell, 40 Wis. 2d 516, 162 N.W.2d 54 (1968). However, such cases deal with the problem that an act cannot be considered an “offense” until there has been a conviction, and they simply do not address the issue of when an “offense” occurs. These are two different concerns, and the distinction is best illustrated by employing a two-step analysis. The first step is that the act in issue is not elevated to the status of an “offense” until there is a conviction. The second step is that once a conviction is shown, it must relate back and the act is deemed an “offense” from the moment of commission. Therefore, the offense occurs when the criminal act is committed.

The Georgia Court of Appeals has addressed this same issue directly. In Hardison v. Boyd, 174 Ga. App. 71, 329 S.E.2d 198 (1985), the appellee pleaded guilty to driving under the influence of alcohol and was declared an habitual violator. The court quoted the statute involved in the case as follows:

“When the records of the department disclose that any person has been convicted of a violation of Chapter 6 of this title . . ., of an offense occurring on or after January 1, 1976, which record of conviction, when taken with and added to previous convictions of such persons of offenses occurring within five years prior to the date of such offenses, as contained in the files of the department, reveals that such person is an habitual violator as defined in subsection (a) of this Code section, the department shall forthwith notify such person that upon the date of notification such person has been declared by the department to be an habitual violator. . . .”

Id. at 71, 329 S.E.2d at 200 (emphasis by court). The court then rejected the contention that it was the date of conviction rather than the date of the violation which controlled, holding:

It is clear from the language quoted above that the date of the offense is the date to be used for the purpose of determining habitual violator status under that section. Were it otherwise, a defense attorney could thwart the intent of the statute by securing a continuance, or a series of continuances, to take an impending conviction outside the five-year period provided in the statute. ... We cannot condone an interpretation of the statute which would render it vulnerable to such manipulation by the defendant.

Id. at 71-72, 329 S.W.2d at 200. The California Court of Appeal reached a similar decision in People v. Albitre, 184 Cal. App. 3d 895, 229 Cal. Rptr. 289 (1986).

We think such reasoning is sound. The General Assembly surely did not intend to allow a defense attorney to reduce an enhanced penalty for third offense driving while intoxicated to a second offense merely by obtaining continuances so that the last conviction would fall outside the three year period. Similarly, it surely did not intend that delay due to court congestion might reduce the degree and penalty. Accordingly, we hold that the dates the offenses were committed are the determinative dates.

The appellant also contends that “ [t] he State of Arkansas failed to introduce evidence of the dates of the prior offenses and therefore should not be allowed to have a remand in this case.” In Burks v. United States, 437 U.S. 1, 18 (1978), the United States Supreme Court held that “the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient” to support a guilty verdict. However, the Court stated that a retrial is permitted to rectify trial error, noting,

In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect instructions, or prosecutorial misconduct.

Id. at 15; see also Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

The problem with the appellant’s argument is one of mischaracterization. The issue here is not one of insufficient evidence but one of trial error. In this case, the trial court ruled that the date of the conviction (not the date of commission of the act) controlled. Therefore, under the trial court’s ruling, the State was not required to produce evidence of the dates of the prior acts because, at that point, evidence of such dates would have been irrelevant. The State’s failure to produce evidence of the dates of the acts stemmed directly from the trial court’s erroneous ruling, and remand should be allowed because of the error.

Reversed and remanded.


text:
    Albert Jean PERRY, et al. v. NICOR EXPLORATION, et al.
    87-27
    738 S.W.2d 414
    Supreme Court of Arkansas
    Opinion delivered November 2, 1987
    [Rehearing denied December 7, 1987.]

      Gardner, Gardner & Hardin, by: Stephen C. Gardner, for appellant.

      Hardin, Jesson & Dawson, by: P.H. Hardin and Betsy Hall, for appellee.
   Robert H. Dudley, Justice.

Appellants, plaintiffs below, appeal from the chancellor’s refusal to cancel twenty-two (22) oil and gas leases in which appellees, defendants below, own the working interest and overriding royalty interest. We affirm.

On August 23, 1969, the McCarty A-#l gas well was completed. The well, subsequently renamed the McCarty B-#l gas well, is located in a 640 acre drilling unit in the Alma Field in Crawford County. Beginning in 1983, appellant Thomas Mueller obtained top leases on twenty-two leases covering approximately 200 acres of the 640 acre drilling unit. The remaining appellants are landowners who either executed the original twenty-two (22) oil and gas leases in question, or purchased their land subject to them. Notice and demand letters were mailed to appellees on June 20, 1985. On October 21, 1985, appellants filed their suit asking that the original leases be cancelled for lack of paying production from the well. Appellees counterclaimed that the Mueller top leases constituted a wrongful interference which created clouds upon their leases. After hearing all of the evidence, the chancellor found that the well was producing in paying quantities.

Appellants first contend that the chancellor erred in considering the unit as a whole in determining whether the well was producing in paying quantities. It is undisputed that each of the twenty-two leases were in their secondary term. Consequently, in accordance with the leases’ habendum clauses, the well had to be producing in paying quantities to the lessee or the leases could be cancelled. Turner v. Reynolds Metals Co., 290 Ark. 481, 721 S.W.2d 626 (1986).

Appellants argue that in making the determination of whether the well was producing in paying quantities, profitability with respect to each individual lease should be considered. There are five gas purchase contracts covering the gas from the McCarty B-#l well. One of the contracts, the oldest, pays only 17 cents per thousand cubic feet. The other gas purchase contracts provide for a substantially higher price. Appellants argue that the contract paying 17 cents is the only one which pertains to the twenty-two leases in question, and that the low price makes production of gas unprofitable with respect to those leases. The argument is without merit.

One witness, Joyce Hodge, a TXO landman for nine years, explained that the testimony presented by appellants concerning payment under the gas contracts was not accurate. She testified that appellants’ leases were subject not only to the 17 cents contract, but also to the other higher-priced contracts. She additionally explained that no one in the chain of title or chain of purchase makes any distinction as to a particular lessor; there was no way to tell where the gas is drawn from and it cannot be attributed to any particular lessor.

In Hurley Enterprises, Inc. v. Sun Gas Co., 543 F. Supp. 359 (W.D. Ark.), aff'd, 696 F.2d 1001 (8th Cir. 1982), the lessor sought partial cancellation of an oil and gas lease. The lease covered 2,195 acres. The lessor sought to cancel it with respect to 339 acres, contending that the lease automatically terminated with respect to those acres when the unit was shut-in for more than sixty days before a shut-in royalty was received. The lessees in the suit contended that the portion of the lease covering the 339 acres was held by production from other wells included in the lease. The trial court found in favor of the lessees. In doing so, it followed the majority rule which provides that the habendum clause is indivisible, and that all lands embraced in the lease will be held by production in paying quantities from lands located anywhere within the acreage subject to the lease. Appellees argue, and we agree, that Hurley analogously supports their position because just as the lease is indivisible as to its parts, so are the leases indivisible as to the unit by virtue of the concept of unitization.

Another case which provides strong analogous support for appellees’ position is Brixey v. Union Oil Co., 283 F. Supp. 353 (W.D. Ark. 1968). In Brixey, a portion of the land covered by a lease was pooled into a unit. The lessees sought to cancel the portion of the lease covering land outside the unit. The court denied the requested relief explaining:

Under the law of Arkansas, and in the majority of jurisdictions where the issue has been determined, where only a portion of the leased land is unitized or pooled with land not covered by the lease and drilling is commenced within the unit, although not on the land covered by the lease, this is sufficient to keep alive and extend the entire lease including lands outside of the area unitized.

Brixey, 283 F. Supp. at 359; See also Gray v. Cameron, 218 Ark. 142, 234 S.W.2d 769 (1950).

Aside from the logical appeal of appellees’ argument and the analogous support of cases such as Hurley and Brixey, there is also considerable support for appellees’ position in the leases themselves. The twenty-two leases in question were introduced at trial. Each of them contains what is commonly referred to as a pooling clause. The pooling clauses all provide that the lessors, appellants, agree that the covered acreage may be pooled to form a unit at the lessees’ option. They further provide that operations on any part of any lands so pooled shall, except for payment of royalties, be considered operations on leased premises under the lease. The import of the pooling clause is clear: The focus must be on whether the well is producing gas in paying quantities to the lessee, and that can only be determined by examining production from the unit as a whole.

Appellants next contend that even if production is considered from the unit as a whole, the chancellor erred in finding that the well was producing in paying quantities. Again, the argument is without merit.

Numerous exhibits and computations were presented by each side concerning the profitability of the well. Each side contested the evidence presented by the other. In reviewing chancery cases on appeal, this Court must afford due deference to the chancellor’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). Further, although this Court tries chancery cases de novo on appeal, we will not reverse the findings of a chancellor unless they are clearly erroneous. Id.

In their case in chief, appellants presented lengthy, detailed exhibits and testimony which prorated revenue and expenses based upon their theory that consideration of the case should be limited to the twenty-two leases and should not involve the unit as a whole. In preparing those exhibits appellants only considered the gas purchase contract carrying a price of 17 cents per thousand cubic feet. They did not take into account the other four gas purchase contracts which set the price considerably higher. Since there was proof that appellants’ leases were subject to all of the gas purchase contracts, the trial court may well have found that the appellants’ exhibits were fatally flawed from the beginning.

Appellees then presented testimony and exhibits showing that overall revenue from the well exceeded the direct cost of lifting during the period 1982 through 1985. On rebuttal, appellants attempted to modify some of their original calculations to take into account the entire unit. A witness for appellants, Jim Slade, prepared the adjusted calculations and testified that in his opinion the well lost money in 1982, 1983, and 1984. Cross-examination, however, revealed that he did not know if some of the expenses used in his calculations were directly related to lifting. In short, appellants had the burden of proving that the well was not producing in paying quantities. The chancellor examined the numerous exhibits presented by the parties and heard the testimony concerning them. She determined that the gas well was producing in paying quantities. We have reviewed all of the evidence, and the chancellor’s finding in that regard is not clearly erroneous.

Affirmed.


author: Steele Hays, Justice. Tom Glaze, Justice,

text:
    Frederick DANIELS v. STATE of Arkansas
    CR 87-94
    739 S.W.2d 135
    Supreme Court of Arkansas
    Opinion delivered November 2, 1987
    [Rehearing denied November 23, 1987.]

      Chandler & Thomason, by: /. G. Molleston, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven III, Asst. Att’y Gen., for appellee.

      Glaze, J., would grant rehearing.

   Steele Hays, Justice.

On January 13, 1987, appellant Frederick Daniels was tried and convicted by a jury of raping Larietta Morehead, eleven year old daughter of Ms. Linda Curry. Daniels was sentenced to a twenty-year term in the Arkansas Department of Correction. On appeal, he raises three issues: (1) his constitutional rights were violated when the trial judge refused to allow one of his witnesses to testify; (2) the court erred when it refused to allow him to develop reputation testimony from a “reluctant” witness; and (3) the court erred when it permitted the prosecutor to comment on appellant’s post-arrest silence.

Frederick Daniels and Linda Curry had gone together prior to the rape incident which occurred on August 23,1986, but had broken up, according to Ms. Curry, long before the date in question. At trial, each claimed responsibility for breaking off with the other and their testimony as to what occurred between them on August 23 in the community of McNeil where they lived, was in sharp conflict.

Ms. Curry testified that on that day she had taken her daughter and son to the home of her brother, James Williams, whose wife, Delores, kept the children for her. She testified that as she was leaving a local store, appellant confronted her, jerked her arm and said he wanted to talk to her. She told him “it was over” and he jerked her arm again and said, “Hey Linda, you don’t believe I’ll run over you?” As she walked away, Curry related appellant got in his car and was “coming behind me” when she ran behind the church. She said that appellant had been drinking heavily. Ms. Curry stated she again encountered appellant at her sister Carolyn’s house, where she told him she had someone else and he responded, “he didn’t care anymore, he didn’t care, it was the mama, daddy, the daughter or the son, that he was going to get even with me.” She said he again tried to run over her with his car.

Ms. Curry said she went home and her brother brought her son home without her daughter. She testified she later called about her daughter’s whereabouts and Delores Williams told her Larietta had left earlier to walk home. James Williams testified he saw Larietta get into appellant’s car about 5:30 or 6:00 that evening. Ms. Curry said she called the police, and while waiting for them, appellant drove up to the house with her daughter. She said Larietta was badly frightened when she got out of the car, that her blouse was torn and she had one of her shoes in her hand, that “her hair was all over her head.” Ms. Curry and Delores Williams questioned Larietta and then Ms. Curry took her to the hospital where she was examined sometime between 11:00 p.m. and midnight. The doctor, who examined the child, and the state’s forensic serologist testified about physical evidence that indicated sexual intercourse recently had occurred. The examining doctor testified that the fresh blood and blood clot at the vaginal mucosa indicated the tear had “just happened within the last less (sic) than 30 minutes to an hour.”

In his testimony, appellant denied he had raped the girl. He admitted having seen Curry at the store where he asked if he could talk to her “about her situation.” She agreed, he said, if he would take her to Rent ’n Own. He said they first stopped in front of her sister’s house where Curry counted her money to pay on her rental note and then they proceeded to E-Z Rental. Appellant claims Curry paid her rent, and they returned to her sister’s house. He testified Curry got mad at him because she felt he was having an affair with someone else. He left, went to a local tavern, Hubie’s, and stayed until about 9:30 p.m. After leaving Hubie’s, he testified he saw Larietta walking home and he gave her a ride home. When he got in Curry’s yard, he said Curry ran out on the porch and accused him of rape.

At trial, part of the state’s case involved argument and proof that Curry had broken off her relationship with appellant and that he threatened to get either her or somebody in her family. Curry denied appellant’s claim that she was friendly or rode with him on the day her daughter was sexually abused. To impeach Curry’s testimony and to bolster his own on this point, appellant called witness Johnny Moore, an employee of the Rent ’n Own store. The trial court excluded Moore as a witness because his name did not appear on the pre-trial witness list and because Moore had unknowingly violated the sequestration rule, A.R.E. Rule 615, by entering the courtroom during the trial and hearing several witnesses testify.

Recently this court took the opportunity to fully address the operative effect and application of Rule 615. We noted that a trial court has a very narrow discretion to exclude the testimony of a noncomplying witness. Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987); see also Norris v. State, 259 Ark. 755, 536 S.W.2d 298 (1976). We said further that narrow discretion can be exercised by the trial judge only when the noncompliance is had with the consent, connivance or procurement of a party or his attorney. Blaylock, 291 Ark. at 345. In Norris, this court held that the rule consistently applied by this court is that a violation by a witness of the rule of sequestration of witnesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness. See also Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). In the instant case, the record reflects nothing to indicate Moore’s presence during some of the witnesses’ testimony was due to anything more than his ignorance of the fact that the sequestration witness rule had been invoked. The state offered no evidence concerning complicity or fault on appellant’s part for Moore’s having sat through some of the trial. Accordingly, we hold the trial court erred in excluding Moore as a witness under the circumstances.

Although error was committed, we must also decide if appellant was substantially prejudiced when he was deprived of the excluded testimony. Id., Allen, 277 Ark. 385. Moore’s proffered testimony includes two exhibits from Rent ’n Own, a computer printout and a rental payment receipt, that reflect Curry’s rental account had been paid on August 23. Neither of the exhibits indicates who actually made the payment.

The relevancy of Moore’s testimony was never addressed below. Based on the state of the record as it exists, we are satisfied appellant was not prejudiced by the exclusion of that testimony. Appellant concedes that Moore could not state who made the rental payment, only that it was made by someone on August 23. We think the excluded proof was essentially inconsequential and does not meet the requirement of substantiality. A.R.E. Rule 103. In fact, when defense counsel called Mr. Moore to the stand he commented, “It’s a very minor point that he’s called for.” (Our italics). We agree. See Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984).

Next, appellant insists the trial court erred in refusing to allow the defense to develop from a reluctant witness, Ms. Rocinty McKinney, testimony that the reputation of Ms. Linda Curry for truthfulness in the community was bad.

Defense counsel called Ms. McKinney as a witness and established she had been at Hubie’s for about an hour on the evening of August 23 and that Daniels was there when she came and when she left. The witness was asked if she was familiar with Linda Curry’s reputation around McNeil. She answered, “I don’t know anything about her reputation.” There was an objection and considerable discussion at the bench. The trial judge ruled that the witness could be asked if she knew Ms. Curry’s reputation for truthfulness and whether it was good or bad. Counsel then asked Ms. McKinney, “Do you know Linda Curry’s reputation in McNeil?” Her answer was, “No.” She was asked again if she knew Linda Curry’s reputation in McNeil and again she answered in the negative. At that point the trial court sustained an objection to further attempts to question the witness about reputation. We cannot say it was error for the trial court to curtail further efforts to obtain a desired answer. The witness was asked three times whether she knew Ms. Curry’s reputation, she answered unequivocally in the negative. The matter addressed itself at that stage to the trial court’s discretion and we think no abuse occurred. Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (1980).

Appellant’s final point is that the trial court erred in permitting the state to attack the defendant’s testimony based upon his silence during the investigation of the case. On cross examination appellant was asked if he had given the names of his alibi witnesses to one of the investigating officers, to which he answered, “No, I didn’t.” The following occurred:

Q: You mean you’ve been sitting in jail up there a hundred and forty-three days and you haven’t given the police officers alibi witness one?
A: No, I haven’t.
Q: You just didn’t have time to think about that?
A: Think about it? I didn’t talk to no one but my attorney.
Mr. MOLLESTON: Your Honor, I’m going to object to this line of questioning. It’s going to attorney-client relations and attorney advice and it’s not proper to attribute it to Mr. Daniels own will in this situation.
THE COURT: Objection will be sustained on that basis.

When the objection was sustained the prosecutor immediately moved to a different topic. On appeal, appellant bases his objection upon a different premise. In trial the objection was based on attorney-client privilege, whereas on appeal he urges that his fifth amendment right to remain silent was used to discredit his testimony. Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983). Be that as it may, the appellant was afforded all the relief requested of the trial court, namely that the prosecutor abandon that line of questioning, which was done. Appellant requested neither an admonition nor a mistrial and since his objection was sustained no error occurred.

The judgment is affirmed.

Purtle, J., and Glaze, J., dissent.

Tom Glaze, Justice,

dissenting. The majority concedes the trial court erred in excluding the testimony of Johnny Moore, but it concludes, citing Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984), that the error was inconsequential and insufficient to reverse. The majority supports its position by reciting defense counsel’s following remark, I believe, a bit out of context, viz., “It’s a very minor point that he’s [Moore’s] called for.” While it is true that Moore’s testimony was for the subservient purpose of introducing two business records or exhibits, those records offered were for a very major point — to impeach the testimony of the state’s witness, Curry, regarding her relationship with appellant the day she claimed appellant raped her daughter. At trial, Curry claimed that, on the day of the rape, appellant was hostile and threatening towards her and her family, including her daughter, plus she denied having ridden with appellant in his car on August 23. Appellant offered two business records through Moore to support appellant’s own testimony and to impeach Curry’s that his relation with Curry was friendly on August 23rd, and that he not only knew she had paid her rent on that date but he also drove her to the Rent ’n Own store to make the payment.

The trial court excluded Moore’s testimony for other reasons and never reached the question of whether Moore’s testimony — more particularly the records showing Curry’s rent was paid on August 23 — was relevant. In this review, the majority obviously held that evidence is not relevant since it concludes no reversible error resulted from its exclusion. It is at this point I disagree with the majority. If the trial judge had had the opportunity to rule on the relevancy issue, this court could have been in a better position to decide if the judge had abused his discretion in excluding the testimony. At least, we would have had the benefit of the trial judge’s reasoning in so ruling.

Nonetheless, based on the state of the record as it exists now, I cannot say with any degree of certainty that appellant was not prejudiced by the exclusion of that testimony. The evidence bearing on appellant’s guilt or innocence of the rape charge was a close question, depending greatly upon whose testimony the jury believed. Curry’s as well as appellant’s credibility was in issue. Obviously, any evidence that had a tendency to show that Curry and appellant had an amiable contact on August 23 would serve to undermine to some extent Curry’s charges that appellant threatened Curry and raped her daughter in retaliation for Curry breaking off her relationship with appellant. Bias may be inquired into on cross-examination and may be proven extrinsically. Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982); see also Hice v. State, 11 Ark. App. 184, 668 S.W.2d 552 (1984) (wherein trial court erred in excluding defense testimony that police officer refused to administer breathalizer test to defendant, the appellate court holding jury entitled to hear such testimony as bearing on the officer’s credibility).

The harm or prejudice done appellant’s case by the exclusion of Moore’s testimony is especially evident when considering the close evidence concerning appellant’s guilt. The record clearly reflects evidence consistent with Curry’s daughter having been raped; less clear is where, and with whom, she was when the rape occurred. While the record might prove more definitive on a retrial of this case on who raped the girl, the evidence before us now is somewhat confusing. For example, the doctor who examined Curry’s daughter placed the time of rape after the time appellant delivered the girl to Curry. Also, Curry’s brother, James, testified he saw appellant pick up the girl between 5:30 and 6:00 p.m.; appellant said it was 9:30 p.m., after he had been to Hubie’s. The girl and her brother had been at James’s home that day but James had taken the son — not the daughter — home early. The state’s case showed the physical evidence could not rule out someone with appellant’s O blood type. James testified he had O-type blood.

The girl’s testimony was most damaging and, it alone, would have been sufficient for the jury to convict the appellant. In sum, she related the appellant pulled her into his car, took her to some woods and raped her. However, on cross-examination, the girl did not respond to the question concerning whether her mother told her to say appellant did it. Curry’s credibility was in issue throughout the trial, both directly, and, when considering her daughter’s failure to respond as just noted, indirectly. One witness, Rocinty McKinney, said that Curry had asked McKinney to alter her testimony.

In view of the credibility issues and the conflicting evidence that exist in the record, I am unable to say appellant was not prejudiced or harmed by the trial court’s ruling to exclude the Moore testimony. Therefore, I would reverse.

Purtle, J., joins in this dissent.

       The victim was examined between 10:50 p.m. and 12:10 a.m. and the doctor said the rape occurred thirty minutes to an hour earlier. At the earliest, the time would have been 9:50 p.m.; and the appellant delivered the girl at 9:40 p.m.

       McKinney testified she had seen appellant at Hubie’s on August 23, but could not give the time.


text:
    Freddie MERCER and Mollie MERCER v. William C. NELSON
    87-162
    738 S.W.2d 417
    Supreme Court of Arkansas
    Opinion delivered November 2, 1987

      Guy Jones, Jr., P.A., for appellant.

      Matthews & Sanders, for appellee.
   Steele Hays, Justice.

Appellants Freddie and Mollie Mercer brought this damage suit alleging negligence by William Nelson in colliding with the rear of Mrs. Mercer’s vehicle while she was stopped in a line of traffic. Nelson’s answer was a general denial and an allegation of contributory negligence. In trial Nelson testified he was struck from behind by another motorist (Ricky Dan Cook) and knocked into the plaintiff. The proof was conflicting as to whether Nelson struck Mrs. Mercer before or after being struck by Cook. Nelson asked the trial court to instruct the jury on intervening proximate cause, AMI 503, to which the plaintiffs objected, arguing that intervening cause was an affirmative defense that had not been pled. At that point the defense moved to conform the pleadings to the proof and the court granted the motion. The jury returned a verdict for the defendant.

On appeal appellants renew the argument that because intervening cause was not pled by the defendant, it was error for the trial court to give AMI 503 and to permit the pleadings to be amended. Appellants cite ARCP Rules 8 and 12 which deal with affirmative defenses and provide that they shall be pled in concise and ordinary language. Conceding that intervening cause should have been specifically pled by the defendant, the answer to appellants’ argument is found in the fact that ARCP Rule 15(b) gives the trial court the discretionary power to allow the pleadings to be amended to conform to the proof:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion. The court may grant a continuance to enable the objecting party to meet such evidence.

Reporters Notes to Rule 15 states:

(2) Section (b) is identical to FRCP 15(b). It follows prior Arkansas law by permitting amendments to conform to the proof adduced at the trial. This rule goes somewhat further, however, by more or less making it mandatory that pleadings be amended to conform to the proof where there has been objection to such proof. Metropolitan Life Ins. Co. v. Fugate, 313 F. 2d 788 (C.C.A. 5th, 1963); Bradford Audio Corp. v. Pious, 329 F. 2d 67 (C.C.A. 2nd, 1968). Prior Arkansas law granted the trial court considerable discretion to permit pleadings to be amended to conform to the proof where there had been no objection raised. Velda Rose Motel, Inc. v. Eason, 241 Ark. 1041, 411 S.W.2d 502 (1967); Smith v. F. & C. Engineering Co., 225 Ark. 688, 285 S.W.2d 100 (1956). Where a new or different claim or defense was sought to be presented over the objection of the opposing party, the pleadings could not be amended to conform to the proof under prior Arkansas law. Shelton v. Harris, 225 Ark. 855, 286 S.W.2d 20 (1956); O’Guinn Volkswagen, Inc., v. Lawson, 265 Ark. 23, 505 S.W.2d 213 (1974). This rule does liberalize somewhat prior Arkansas law.

We find no objection by the appellants to the proof of intervening cause, in fact, the initial introduction of intervening cause came from the appellants, whose first witness was the investigating officer. It was quickly established by his testimony that three vehicles were involved in the collision. Appellants’ counsel then asked:

Q: Now, did Mr. Nelson ever indicate to you that day that he would have stopped, except that he was hit by Cook and forced into Molley’s (Mrs, Mercer) car?
A: No.
Q: He indicated to you that he hit Molley about the same time Cook was hitting him is that what you’re telling us?
A: That’s correct, according to his statement, that’s the way it happened.

Nor was there an objection subsequently when Nelson testified that he would have been able to stop before hitting Mrs. Mercer had he not been struck by Ricky Dan Cook. Thus, it is clear that the language of Rule 15, providing that issues not raised by the pleadings but tried by implied consent of the parties, is applicable here, with the result that such issues are treated “in all respects” as if they had been raised by the pleadings. Moreover, we find no claim of surprise, nor request for a continuance by the appellants in order to counter the proof respecting the intervening factor. Having granted the motion to amend, it was proper for the trial court to instruct the jury regarding intervening proximate cause. Dooley v. Cecil Edwards Construction Co., Inc., 13 Ark. App. 170, 681 S.W.2d 399 (1984).

Affirmed.

Purtle, J., not participating.