text:
    Iva Belle HARDIE, Ruby Jean Morris, Sondra Kay Lee, Sharon Faye Stewart, Donald Davis Kreipde, Doris Raye Clyma, and Elizabeth Nell Scott v. The ESTATE OF Alline B. DAVIS and the Alline B. and C.C. Davis Charitable Foundation
    92-642 & 92-643
    848 S.W.2d 417
    Supreme Court of Arkansas
    Opinion delivered March 1, 1993

      Hardin, Jesson, Dawson & Terry, by: J. Rodney Mills, for appellants.

      Pryor, Barry, Smith, Karber & Alford, by: Thomas B. Pryor, for appellee.
   Jack Holt, Jr., Justice.

Appellants are seven remote heirs of Alline B. Davis: Iva Belle Hardie was Alline B. Davis’ sister and the other named appellants were nieces and a nephew of Mrs. Davis (hereafter “the remote heirs”). Appellees are the Estate of Alline B. Davis and the Alline B. and C.C. Davis Charitable Foundation (hereafter “the estate”).

Alline B. Davis, widow of C.C. Davis, died on July 29,1991. Before her husband’s death, the Davises sought to set up an estate plan providing for the survivor of them, minimizing estate taxes, and setting up a charitable trust in their names, the Alline B. and C.C. Davis Charitable Foundation. Mr. Davis executed two wills: one dated September 13, 1978 and one dated January 3, 1980. Mr. Davis entered into the trust agreement setting up the charitable foundation with Merchants National Bank of Fort Smith (hereafter “Merchants”) on February 19, 1980.

Mr. Davis’ 1978 will stated that he did not want to leave his daughters anything and left his wife an amount exempt from estate taxes under the marital deduction and other deductions and exempt under a unitrust with the remainder of his estate going to the Davis Charitable Foundation. This will specifically sets out this foundation and names the trustees.

Mr. Davis’ 1980 will again stated that he expressly did not want to leave his daughters anything and left his wife an amount exempt from estate taxes under the marital deduction, $5,000 to the Boys Club of Fort Smith, and $5,000 to Sparks Manor of Fort Smith, the nursing home where his wife resided. The rest of his estate was devised to Evelyn and Bill Bateman, his niece and her husband, with the understanding that they were to look after Mrs. Davis. The Batemans were also appointed co-executors. The 1980 will made no mention of the charitable foundation, but a subsequent trust agreement was executed on February 19, 1980 that made an inter vivos transfer of the bulk of Mr. Davis’ estate to the foundation.

Mrs. Davis’ will was executed on March 3, 1979. She was adjudicated incompetent on September 13, 1979, and First National Bank of Fort Smith (hereafter “First National”) was appointed guardian of her estate.

After Mr. Davis’ death on May 25,1981, an inventory of the estate revealed under the 1980 will, Mr. Davis only had estate of $370.00, the balance having already been transferred by him to the charitable foundation under the trust agreement in 1980. First National, as legal guardian of the estate of Alline B. Davis, and his daughters, Chloe Ramsey and Jewel Swindle, challenged the 1980 will and trust agreement. As a result, on December 16, 1981, First National entered into a settlement agreement (hereafter “settlement agreement”) with Merchants, Bill Bateman, Evelyn Bateman, Chloe Ramsey, Jewel Swindle, and the trustees of the Alline and C.C. Davis Charitable Foundation. By decree dated January 21, 1982, the Chancery Court of Sebastian County approved the settlement agreement which, was signed by trust officers for First National and Merchants, Bill and Evelyn Bateman, Betty Chloe Ramsey, Jewel Swindle, Wayne Swofford (executor of Mrs. Davis’ estate), J. Michael Shaw (estates’ attorney), and W.J. Echols, Jr. (trustee of charitable foundation). The effect of the settlement agreement was:

(1) the 1980 will was voided;

(2) the 1980 inter vivos transfer by Mr. Davis of the bulk of his estate was voided and this property was brought back into the estate;

(3) $40,000 in trust income as payment to attorney P.H. Hardin for attorneys’ fees;

(4) $50,000 in trust income to Bill Bateman for services;

(5) $300,000 to Alline Davis;

(6) $300,000 to Alline Davis in unitrust form to be paid over to the Davis Charitable Foundation upon her death;

(7) $75,000 each to daughters, Chloe Ramsey & Jewel Swindle;

(8) the remainder of the estate after expenses to the Batemans.

Also, the settlement agreement expressly provided:

8. Betty Chloe Ramsey, Jewel Swindle, Bill Bateman, Evelyn Bateman, and their respective attorneys, John H. Fitzhugh, Lem Bryan, P. H. Hardin and Franklin Wilder, agree that the will prepared by Bruce Shaw executed by Alline B. Davis on March 3,1979, is the valid last will and testament of Alline B. Davis, and that neither they nor any persons associated with them will contest, challenge, or by any word or act question or impugn the validity of the Alline B. Davis will dated March 3,1979, or do any other thing to impede or impair the probate of such will as the last will and testament of Alline B. Davis.
11. This instrument includes all agreements of the parties, and there are no other representations, considerations or commitments between the parties other than those expressed herein. This agreement shall be binding upon the heirs and legal representatives of the parties.

Mrs. Davis died on July 29,1991, leaving an estate appraised at $881,570.00.

On July 31, 1991, Wayne Swofford and First National, co-executors named in Mrs. Davis’ will, filed a petition to probate her March 3,1979 will. This will left her entire estate to her husband should he survive her or to the Alline B. and C.C. Davis Charitable Foundation should he predecease her. No other gifts, bequests, or devises were included in the will. The petition for probate specifically listed the following surviving heirs:

Iva Hardie, sister
Alline B. and C.C. Davis Charitable Foundation
Sondra Lee, niece
Sharon Stewart, niece
Don Kreipke, nephew
Evelyn Bateman, niece
Doris Clyma, niece
Jean Morris, niece
Nell Scott, niece

Although the record appears silent on the matter, it is evident that the Davises’ two daughters, Betty Chloe Ramsey and Jewel Swindle, predeceased Mrs. Davis since they were not listed as surviving heirs on the petition to probate.

After notice was duly given to these survivors and published as required, the will was probated on August 5, 1991. All the survivors listed on the petition to probate except for the foundation contested the will by petition filed November 1,1991, on the basis that Mrs. Davis was incompetent and under the undue influence of third parties when the 1979 will was executed. Ms. Hardie was Mrs. Davis’ sister and the others are nieces and nephews.

The estate replied that Mrs. Davis, through her legal guardian, agreed to the settlement agreement and its terms, and, the persons now claiming to be the heirs of Alline B. Davis are in privity with their ancestor, and as such under the settlement agreement are estopped to deny the validity of the March 3,1979 will pursuant to which the property comprising the estate of Alline B. Davis is to pass at the time of her death to the Alline and C.C. Davis Charitable Foundation. Also, the estate argued that to permit the persons claiming to be heirs of Alline B. Davis to repudiate the agreement which their ancestor entered into with the Alline and C.C. Davis Charitable Foundation would constitute a fraud on the foundation. The estate also filed a motion for summary judgment and to transfer to chancery on the equitable issues of specific performance, estoppel, and fraud. In support of the motion for summary judgment, the estate attached the affidavit of Wayne Swofford, Vice President and Trust Officer of First National, who stated he had worked as a C.P.A. for twenty years for the Davises, that it was their wish to set up a charitable foundation with their estates, and that both were competent and possessed testamentary capacity when their foundation was created.

On December 19, 1991, Probate Judge Harry A. Foltz entered an order transferring the equitable issue to chancery and a separate order directing the clerk to assign the case in chancery to him “[bjecause part of this case will be tried in Probate Court by the undersigned judge and part of the case in Chancery Court, it is imperative that the same judge hear the case.”

The collateral heirs argued that since Mrs. Davis did not sign the settlement agreement herself, it was not binding on her pursuant to Ark. Code Ann. § 28-24-101(l)(c), “a contract to make a will or devise, or not to revoke a will or devise, to die intestate if executed after June 17,1981, can be established only by. . ,(c) a writing signed by the decedent evidencing the contract.”

On February 24, 1992, as chancellor, Judge Foltz granted the trust’s motion for summary judgment on the basis that the foundation was supported by Mr. Swofford’s affidavit and the remote heirs had not introduced any affidavits rebutting his statements; that Alline B. Davis was a proper party to the settlement agreement through her guardian; the settlement agreement induced the charitable foundation to give up rights and claims to Mr. Davis’ estate; that the will contestants are heirs at law of Alline B. Davis and as such stand in privity to her and are bound by the agreement. The chancellor found there was no genuine issue of material fact and ordered specific enforcement of the agreement and estoppel of the remote heirs from challenging the 1979 will.

On February 27, 1992, Judge Foltz as probate judge dismissed the will contest with prejudice on the basis of his findings as chancellor. His probate court order was appealed to this court, and his chancery court order was appealed to the court of appeals. Since both cases involved the same parties, issues, and subject matter, we consolidated the appeals by order dated June 29, 1992.

We most recently summarized the standard of review for summary judgment in Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (January 25, 1993):

The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion and any doubts and inferences must be resolved against the moving party.
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ark. R. Civ. P. 56(c). While there might well have been disputed issues of negligence had this case gone to trial, the only issue with which we are concerned is whether the statute of limitations was tolled by continuous treatment. As to the latter, there is no factual dispute. The question is thus whether Dr. Eck was entitled to judgment as a matter of law.

The standard of review for summary judgment is whether the evidentiary items presented by the appellee in support of the motion left a material question of fact unanswered. Wilson v. General Elec. Capital Auto Lease, 311 Ark. 84, 841 S.W.2d 619 (1992); Barraclough v. Arkansas Power & Light Co., 268 Ark. 1026, 597 S.W.2d 861 (1980). In appeals from the granting of summary judgment, we review facts in a light most favorable to the appellant and resolve any doubt against the moving party. Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). See Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992).

The central issue in this case is whether the remote heirs have the power to attack a court-approved settlement agreement. It should be noted that at the time the settlement agreement was executed, these remote heirs were not “interested persons” entitled to contest a will under Ark. Code Ann. § 28-40-113(a) (1987) because they would not have taken by intestate succession at that time since Mrs. Davis’ two daughters were still living. See Mabry v. Mabry, 259 Ark. 622, 535 S.W.2d 824 (1976) (brothers and sisters of testator were not interested persons where testator had adopted son living); Hawkins v. Hawkins, 218 Ark. 423, 236 S.W.2d 733 (1951) (just any collateral heir is not necessarily an “interested person” with a right to contest the probate of a will under Ark. Code Ann. § 28-40-113 (1987)).

We hold that the grant of summary judgment was proper because we agree with the chancellor that the settlement agreement is a valid, enforceable contract which Mrs. Davis’ guardian had the authority to enter into on her behalf. Ark. Code Ann. § 28-65-318(a) specifically provides for settlement agreements and for the guardians to execute them:

28-65-318. Compromise settlements.

(a) On petition of the guardian of the estate, the court, if satisfied that the action would be in the interest of the ward and his estate, may make an order authorizing the settlement or compromise of any claim by or against the ward or his estate, whether arising out of contract, tort, or otherwise, and whether arising before or after the appointment of the guardian.

Also, Ark. Code Ann. § 28-65-302(7) (1987) lists “consent to a settlement or compromise of any claim by or agáinst the incapacitated person or his estate” as a type of action which guardians must petition and obtain express court approval to carry out. Here, the probate court was petitioned and specifically approved the settlement and authorized the guardian to sign the settlement agreement as allowed by statute. We see no reason to overturn that approval.

We further hold that the chancellor was correct in finding that the appellants here are in privity with her and are therefore bound by the settlement agreement. Kennedy v. Quinn, 177 Ark. 1069, 9 S.W.2d 315 (1928). The settlement specifically stated, “This agreement shall be binding upon the heirs and legal representatives of the parties.” Our holding that privity exists is necessary to preclude possible claims to her estate in the future. We have long held that equitable estoppel binds the immediate parties and their privities by blood, estate, or contract. Vaughn v. Dossett, 219 Ark. 505, 509, 243 S.W.2d 565, 568 (1951) (citing Mason v. Dierks Lumber & Coal Co., 94 Ark. 107, 125 S.W. 656 (1910)); Simmons v. Simmons, 203 Ark. 566, 571, 158 S.W.2d 42, 45 (1942); Johnson v. Commonwealth Bldg. & Loan Assoc., 182 Ark. 226, 31 S.W.2d 136 (1930); McKenzie & Rumph, 171 Ark. 791, 286 S.W.2d 1022 (1926). See Ward v. Davis, 298 Ark. 48, 765 S.W.2d 5 (1989); Haynes v. Metcalf, 297 Ark. 40, 759 S.W.2d 542 (1988); Moorehead v. Universal C.I.T. Credit Corp. 230 Ark. 896, 898, 327 S.W.2d 385, 387 (1959). See also Phelps v. Justiss Oil Co., 291 Ark. 538, 726 S.W.2d 662 (1987) (quoting the Restatement 2d, Judgments, 43(b) (1980) for the rule that a judgment in an action that determines interests in real or personal property has preclusive effects upon a person who succeeds to the interest of a party to the same extent as upon the party himself).

The settlement agreement in question was a contract specifically allowed for by Ark. Code Ann. § 28-65-318 (1987). Assuming proper statutory procedures have been followed, we look on such a settlement agreement with favor as a means to avoid costly litigation over decedents’ estates and to bring the estate to a prompt and final close.

We hold that the settlement agreement before us effectively determined the respective rights of the parties and that the probate court was correct in bringing the Davis estate to a proper and final close.

Affirm.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    James PARDON, Sr., and Imalene Pardon and James Pardon, Jr., Individually, and James Pardon, Jr., Administrator of the Estate of David R. Pardon, Deceased v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY
    92-644
    848 S.W.2d 412
    Supreme Court of Arkansas
    Opinion delivered March 1, 1993

      Bridewell & Bridewell, by: Laurie A. Bridewell, for appellant.

      Wright, Chaney, Berry & Daniel, P.A., by: William G. Wright, for appellee.
   Robert H. Dudley, Justice.

David Pardon, the owner of a pickup truck, purchased a liability insurance policy on the truck from Southern Farm Bureau Casualty Insurance Company. The policy contained uninsured motorist coverage. Pardon, Christopher Thomas, and a third person were in the truck when it was involved in a one-vehicle accident. Both Pardon and Thomas were killed. Pardon’s estate filed this suit against Thomas’s estate and Southern Farm Bureau Casualty Insurance Company. Pardon’s estate alleged that Thomas was driving Pardon’s truck at the time of the accident, and, as a result, (1) Thomas’s estate is liable in tort because Thomas was negligent in the operation of the truck, and (2) Southern Farm Bureau Casualty Insurance Company is liable in contract under the uninsured motorist coverage provision because Thomas did not have liability insurance and because Pardon was excluded from recovering under his own liability insurance. The trial court granted summary judgment on the contract count against Southern Farm Bureau Casualty Insurance Company. The tort suit against Thomas’s estate remains before the trial court. Pardon’s estate seeks to appeal from the summary judgment granted in favor of one of the two defendants. We dismiss the appeal because the summary judgment from which the estate seeks to appeal is not a final order as to all of the parties, and the trial court did not find a likelihood of hardship or injustice which would be alleviated by an immediate appeal. See A.R.C.P. Rule 54(b) & 3-W Lumber Co. v. Housing Auth. for the City of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985). The requirements for an order pursuant to A.R.C.P. Rule 54(b) allowing immediate appeal are set out in Austin v. First National Bank of Fayetteville, 305 Ark. 456, 808 S.W.2d 773 (1991).

Appeal dismissed.


author: Steele Hays, Justice. Robert L. Brown, Justice, Tom Glaze, Justice,

text:
    Scott HIGGINBOTHAM v. ARKANSAS BLUE CROSS AND BLUE SHIELD, a Mutual Insurance Company
    92-148
    849 S.W.2d 464
    Supreme Court of Arkansas
    Opinion delivered March 1, 1993
    [Rehearing denied April 5, 1993]

      Adams & Nichols, by: Donald J. Adams, for appellant.

      Matthews, Campbell & Rhoads, P.A., by: George R. Rhoads and David R. Matthews, for appellee.

      Holt, C.J., and Glaze and Corbin, JJ., would grant rehearing.

   Steele Hays, Justice.

This dispute between insured and insurer over proceeds arising from personal injuries to the insured is certified to us by the Court of Appeals as containing both an issue of significant public interest and a legal principle of major importance. Our jurisdiction attaches under Rule 29.4(b) of the Rules of the Supreme Court and Court of Appeals.

On February 29,1990, Scott Higginbotham (appellant) was seriously injured in an automobile accident. Scott’s father, Glenn Higginbotham, was insured by Arkansas Blue Cross and Blue Shield (appellee) pursuant to an insurance contract (No. U96626) issued through the Arkansas Public School Employees. Scott, as son and a full-time student, was an insured under the contract. Blue Cross paid medical bills totalling $11,482.08. The liability carrier for the other motorist, State Farm Mutual Insurance Company, paid Scott Higgiijbotham its policy limits, $25,000, in return for which Scott executed a settlement releasing State Farm and its insured from all further liability.

Subsequently, Blue Cross made demand on Scott for reimbursement of the benefits paid by it, relying on the following subrogation clause in the insurance policy:

In the event any benefits or services of any kind are furnished to you or payment made or credit extended to or on behalf of any covered person for a physical condition or injury caused by a third party or for which a third party may be liable, the Plan shall be subrogated and shall succeed to such covered person’s rights of recovery against any such third party to the full extent of the value of any such benefits or services furnished or payments made or credits extended.

Higginbotham refused to honor the request, taking the position that Blue Cross was not entitled to subrogation until he had received sufficient sums of money to be “made whole.” This litigation ensued and both parties filed motions for summary judgment. Higginbotham’s motion included affidavits from trial lawyers assessing his injuries at over $50,000. Blue Cross stated in response that these affidavits created disputed fact questions, but argued the trial court could rule without using the affidavits, simply finding that the insurer should be granted immediate subrogation, irrespective of whether the insured had yet been made whole.

The trial court found that the $25,000 did not fully compensate Higginbotham for his injuries, but made no finding as to the total amount of the loss. The trial court held the right of subrogation provided in the insurance contract applies “regardless of whether the covered individual is fully compensated in his settlement with the tort-feasor’s insurance company.”

Higginbotham maintains that this question has not been previously addressed in this jurisdiction, but that other decisions are supportive of his position. Blue Cross takes issue with the assertion that no precedent exists in this jurisdiction, citing Storey v. Arkansas Blue Cross and Blue Shield, Inc., 17 Ark. App. 112, 704 S.W.2d 176 (1986), as “remarkably similar.” Both cases involve the child of a public school employee covered under an Arkansas Public School Employees policy. In both, a settlement was reached with the third party’s liability carrier without the approval of Blue Cross releasing the carrier and the tortfeasor from further liability. After having paid medical and hospital benefits to Storey, Blue Cross learned that Storey had settled her tort claim against a third party for $39,000. Blue Cross sued for reimbursement and obtained a judgment against Storey for $3,234, from which Storey appealed. Interpreting the identical policy provision involved in the case at bar, the Court of Appeals affirmed:

Appellant was entitled to the benefits paid by appellee pursuant to its contract with appellant’s mother, and upon payment of medical benefits on appellant’s behalf, appellee was entitled under the contract provisions to recoup those payments. While appellant had the option to decline any benefits as a member under the contract, she simply chose not to do so.

The Court of Appeals also observed:

[W]e tend to agree with the appellant that the settlement amount had no relevance concerning appellee’s right to reimbursement under the insurance contract. . . .

We recognize that there is authoritative support for Higginbotham’s point of view. See e.g., Powell v. Blue Cross and Blue Shield, 581 So.2d 772 (Ala. 1990), a plurality opinion representing the view that subrogation is essentially an equitable remedy, and even where there are contract provisions between the insured and the insurer for subrogation rights, equitable principles prevail and require that the insured be made whole for the total loss before the insurer can recover from any funds received by the insured. In accord is Rimes v. State Farm Mutual Automobile Ins. Co., 106 Wis.2d 263, 316 N.W.2d 348 (1982).

On the other hand is Culver v. Insurance Co. of North America, 115 N.J. 451, 559 A.2d 400 (1989). Culver holds that subrogation principles do not override the right to contract. (See also the dissenting opinion in Powell v. Blue Cross and Blue Shield by Houston and Maddox, JJ., and the dissenting opinion in Rimes v. State Farm by Steinmentz, J.).

Although we attribute considerable merit to the opposing approach, we believe on balance the policy language must govern. The clause is clear; the words are unambiguous:

In the event any benefits or services of any kind are furnished to you or payment made or credit extended to or on behalf of any covered person for a physical condition or injury caused by a third party or for which a third party may be liable, the Plan shall be subrogated and shall succeed to such covered person’s rights of recovery against any such third party to the full extent of the value of any such benefits or services furnished or payments made or credits extended. [Our emphasis.]

We are not overlooking our own case, Shelter Mutual Insurance Company v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992), decided after these briefs were filed but discussed in oral argument. The decision contains this comment:

Although we have no criticism of the cases cited by Bough, the rule limiting the insurer’s rights to subrogation in those cases is not applicable to the facts here. The equitable nature of subrogation is granted an insurer to prevent the insured from receiving a double recovery. Thus, while the general rule is that an insurer is not entitled to subrogation unless the insured has been made whole for his loss, the insurer should not be precluded from employing its right of subrogation when the insured has been fully compensated and is in a position where the insured will recover twice for some of his or her damages. That is the situation here.

But the fact remains that we have not previously addressed the issue here presented, nor were we doing so in Bough. The primary holding of that case concerned whether Shelter had properly made underinsured motorist benefits available to its insureds, Nancy and Robert King, whose vehicle Bough was driving when the loss occurred. A secondary issue was whether Shelter was prejudiced by Bough’s full release of the third party tort-feasor and his carrier without notice to Shelter. Thus, the excerpt from Bough was dictum.

It may be those equitable principles on which Higginbotham relies are appropriate to the doctrine of subrogation by operation of law, a right broadly recognized in the law irrespective of whether there is a provision in the policy itself, but not where, as here, the right is one of conventional subrogation, that is, subrogation by express agreement between the insured and the insurer. See 44 Am. Jur. 2d Insurance at 783 (1982).

Without discounting the equitable properties of subrogation, we can conceive of no sound reason why broad principles of equity should be imbued with dominance over clear and specific provisions of a contract agreed to by the parties, at least where public policy considerations are wanting. Language from the decision of this court in Standard Life and Accident Insurance Co. v. Ward, 65 Ark. 295, 45 S.W. 1065 (1898) repeated in Maryland Casualty Co. v. Chew, 92 Ark. 276, 122 S.W. 642 (1909), is pertinent:

The insurance company had the right to fix the terms and conditions upon which it would insure appellee, and the latter had the right to accept or reject the insurance in these terms and conditions; but, having accepted the same, it was a contract between them, and, being in violation of no principle of law, nor in contravention of the policy of the law, must be enforced according to its terms and meaning; and the courts have the right neither to make contracts for parties, nor to vary their contracts to meet and fulfill some notion of abstract justice, and still less of moral obligation.

That was written a near century ago but is, nonetheless, the law.

Affirmed.

Holt, C.J., and Glaze and Corbin, JJ., dissent.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I agree that Blue Cross should be subrogated under its insurance policy to benefits paid for the same risk that it covered which is medical care due to personal injury. Based on the record before us, it is impossible to tell what State Farm’s liability benefit of $25,000 involved. Presumably it was liability coverage for bodily injury only. Blue Cross should only recover by subrogation to the extent that there has been double recovery by the insured for the same damages covered by Blue Cross. Had the appellant shown that part of the State Farm benefits were for damages other than for medical treatment, I would disallow subrogation for the non-medical portion of the benefits paid fot public policy reasons. However, that was not done, perhaps because the parties understood that the liability coverage only went to bodily injury. For that reason I concur with the opinion.

Tom Glaze, Justice,

dissenting. Today’s decision clearly conflicts with our recent holding in Shelter Mut. Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992). There, we adopted the general rule that while an insurer is not entitled to subrogation unless the insured has been made whole for his loss, the insurer should not be precluded from employing its right of subrogation when the insured has been fully compensated and is in a position where the insured will recover twice for some of his or her damages. In other terms, the rule has been stated that subrogation is not available to the insurer where the loss exceeds the amount recovered from the insurer and the wrongdoer. To this effect, see 6A Appelman, Insurance Law & Practice § 4095 at p. 275 (1972 and Supp. 1992). Couch relates the principle that equity requires that the insured be made whole before the insurer’s right to subrogation arises. 16, Couch on Insurance, 2d Rev. ed. § 61, 20 (1983).

In the present case, the proof showed that the insured’s total damages amounts to at least $60,000, but he has received only $11,482.08 from his insurer, Arkansas Blue Cross & Blue Shield, and $25,000 from the wrongdoer’s insurer. Thus, the insured, Mr. Higginbotham, has received a total of $36,482.08, and no proof reflects this amount came close to paying him for his entire loss.

The majority court attempts to distinguish the rule in Bough by stating that the situation here involved “conventional subrogation” and that the insurer’s and insured’s rights are determined purely on contractual terms. However, the rule appears settled that subrogation is recognized or denied upon equitable principles without differentiation between “legal subrogation” which arises by application of principles of equity and “conventional subrogation” arising from contract or the acts of the parties. Garrity v. Rural Mut. Ins. Co., 11 Wis.2d 537, 253 N.W.2d 512 (1977). As the Garrity court further stated, the conventionally subrogated or contractual insurer has no share in the recovery from the tortfeasor if the total amount recovered by the insured from the insurer does not cover his loss. Maryland Casualty of Baltimore, Md. v. Cincinnati, C., C. & St. L. Ry. Co., 74 Ind.App. 272, 124 N.E. 774 (1919); Providence Washington Insurance Co. v. Hogges, 67 N.J.Super. 475, 171 A.2d 120 (1961); Hardware Dealers Mutual Fire Ins. Co. v. Ross, 129 Ill.App.2d 217, 262 N.E.2d 618 (1970); Lyon v. Hartford Accident and Indemnity Co., 25 Utah 2d 311, 480 P.2d 739 (1971).

In my view, the rule we adopted in Bough is applicable to the situation before us now, and accordingly we should reverse.

Holt, C.J. and Corbin, J., join this dissent.


author: David Newbern, Justice.

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. John HEATH
    92-962
    848 S.W.2d 927
    Supreme Court of Arkansas
    Opinion delivered March 1, 1993

      Bruce P. Hurlbut, Asst. Chief Counsel, for appellant.

      Rose Law Firm, by: Webster L. Hubbell and David P. Martin, and Rieves & Mayton, by: Elton A. Rieves, III, for appellee.
   David Newbern, Justice.

This is the second appeal in this case which arose when the Department of Human Services (DHS) received a report of possible child abuse committed by John Heath, Principal at Marion Middle School. The report stated Mr. Heath had hit a student three times on the buttocks with a wooden paddle. Investigation confirmed the paddling occurred, and a DHS report concluded there was “some credible evidence of child abuse.” In addition, a box was checked on the DHS report form indicating that the report of child abuse was “substantiated.” Mr. Heath appealed through administrative channels without success and then to the Circuit Court. The Court found the allegation unsubstantiated and ordered that Heath’s name be immediately expunged from DHS records. DHS appealed, contesting only the Trial Court’s determination that the law requiring even unsubstantiated allegations be retained in a DHS registry for three years was unconstitutional.

We remanded the case for notification of the Attorney General pursuant to Ark. Code Ann. § 16-111 -106 (1987) in view of constitutional challenge. Arkansas Department of Human Services v. Heath, 307 Ark. 147, 817 S.W.2d 885 (1991). The case is here again in the same posture, the Trial Court having ordered DHS to expunge from its central registry the entry regarding Mr. Heath. DHS does not appeal from that part of the Trial Court’s order finding that the report was “unsubstantiated.” While the record does not disclose the manner in which DHS will alter its record to show that the allegation is unsubstantiated, we must assume that it will do so. Arkansas Code Ann. §§ 12-12-505 and 12-12-506 require DHS to treat “unfounded” reports differently from others. The only argument in this appeal is about the constitutionality of a statutory scheme by which DHS is required to retain “unsubstantiated” reports in its central registry.

Mr. Heath contends the statutory scheme by which such a record of an unsubstantiated allegation of child abuse is retained violates his right to due process and equal protection of the laws as well as the separation of powers doctrine and his right to privacy. DHS argues the Court erred in ordering the record concerning the allegations against Heath removed from the registry as the statute does not usurp any judicial function or violate constitutional rights.

Because there is no constitutional violation, we reverse and dismiss that part of the ruling directing expungement of the DHS records.

1. The statutes

We agree with the DHS contention that the statutes prohibit expunging the record of an allegation of child abuse determined to be unsubstantiated from the central registry for a period of three years. Arkansas Code Ann. § 12-12-505 (Supp. 1991) provides that records in the DHS central registry of unfounded child abuse allegations be destroyed at the expiration of three years. While that provision might seem to permit some discretion to destroy a record prior to the passage of three years, we conclude the General Assembly intended such records be kept for the entire period. A provision requiring immediate expungement of a record not supported by “credible evidence” appearing in Act 397 of 1975 was repealed in favor of the current provision by § 17 of Act 1208 of 1991. The repeal of that provision in combination with the provision requiring expungement after three years reveals the General Assembly’s intent that the information be kept for three years.

2. Separation of powers

Mr. Heath argues the statute violates the separation of powers doctrine and usurps judicial functions as it restricts the inherent power of a court to fashion an appropriate remedy and order expungement of a record. He cites United States v. Dooley, 364 F. Supp. 75 (E.D. Penn. 1973) and United States v. Linn, 513 F.2d 925 (10th Cir. 1975).

In the Dooley case, the defendant sought to have arrest records eradicated following an acquittal. The Court refused, indicating that such a determination was a legislative function even though it expressed grave concern with the potential for an invasion of the privacy of the individual if the information were to fall into the wrong hands.

The Linn case involved an attorney acquitted of all charges in a 59-count indictment. He sought expungement, but the Court declined, concluding that acquittal alone, without a showing that the records had been or would be improperly or intrusively used, was not sufficient to require expungement.

The cases are not helpful to Mr. Heath’s cause. Arkansas Code Ann. § 12-12-506 (Supp. 1991) limits the disclosure of unfounded allegations to DHS offices for purposes of the administration of adoption, foster care, children’s protective services programs, or child care licensing programs. There can be no further disclosure of this information, and there has been no showing that the retained information is being misused or that that will occur in the future. We agree with DHS that there has been no invasion of the judicial function by this enactment.

3. Due Process

Neither the statute nor DHS policy provides a process by which one wrongfully accused of child maltreatment may have one’s name removed from the registry prior to the expiration of three years. Mr. Heath argues that this lack of process to deal with records concerning unfounded claims, coupled with potential negative consequences resulting from possible wrongful dissemination, renders the legislation violative of his right to due process of law.

It is Mr. Heath’s burden to show that the Act is unconstitutional, Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991). This is an especially heavy burden as legislation is presumed not to be unconstitutional. First National Bank v. Arkansas State Bank Comm’r, 301 Ark. 1, 781 S.W.2d 744 (1989).

We made it clear in the First National Bank case that one challenging legislation as a deprivation of due process of law must show that a property interest is at stake. That was also one of the holdings in Board of Regents v. Roth, 408 U.S. 564 (1972). Mr. Heath argues the potential injury to his reputation constitutes a deprivation of a property interest. The law does not support his claim.

The Supreme Court in Paul v. Davis, 424 U.S. 693 (1976), was confronted with the publication of Davis’s name on a Louisville police flyer with names and photographs of active shoplifters. Davis complained that the infliction by state officials of a “stigma” to one’s reputation was an infliction of harm actionable under 48 U.S.C.S. § 1983 and the Fourteenth Amendment. The Court reversed the Sixth Circuit Court of Appeals and stated:

The second premise upon which the result reached by the Court of Appeals could be rested—that the infliction by state officials of a ‘stigma’ to one’s reputation is somehow different in kind from infliction by a state official of harm to other interests protected by state law—is equally untenable. The words ‘liberty’ and ‘property’ as used in the Fourteenth Amendment do not in terms single out reputation as a candidate for special protection over and above other interests that may be protected by state law. While we have in a number of our prior cases pointed out the frequently drastic effect of the ‘stigma’ which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause. As we have said, the Court of Appeals, in reaching a contrary conclusion, relied primarily upon Wisconsin v. Constantineau, 400 U.S. 433 (1971). We think the correct import of that decision, however, must be derived from an examination of the precedents upon which it relied, as well as consideration of the other decisions by this Court, before and after Constantineau, which bear upon the relationship between governmental defamation and the guarantees of the Constitution. While not uniform in their treatment of the subject, we think that the weight of our decisions establishes no constitutional doctrine converting every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment. 424 U.S. 701, 702.

The Constantineau case involved a Wisconsin statute providing that designated persons could forbid the sale of liquor to persons who exposed their families to want or became dangerous to the peace. Constantineau had been posted as one of those persons by the chief of police of Hartford. The District Court granted an injunction against enforcement of the statute finding it unconstitutional as it provided no process to the individual so labeled, and the Supreme Court upheld the injunction saying, “We agree with the District Court that the private interest is such that those requirements of procedural due process [notice and opportunity to be heard] must be met” and “[o]nly when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented.”

Clearly the import of the Paul case was to limit the holding in the Constantineau case to its facts and to make it clear that a potential injury to reputation did not involve a due process violation. The Paul case is controlling, and it provides no support for Mr. Heath’s claim.

In addition Ingraham v. Wright, 430 U.S. 651 (1977), reveals that there must be a property interest coupled with a lack of procedural safeguards to lift a denial of notice and hearing to the level of a constitutional deprivation. In the Ingraham case, the Supreme Court considered the matter of corporeal punishment in a public school. The Court found there was a liberty interest but concluded, “In view of the low incidence of abuse, the openness of our schools, and the common-law safeguards that already exist, the risk of error that may result in violation of a schoolchild’s substantive rights can only be regarded as minimal.”

Mr. Heath seeks to distinguish the Paul case because the Court emphasized that Davis had a remedy in state tort law, which is not available in this case, and because the Court noted that defamation accompanied by an infringement of a right or status could raise a constitutional claim. While it is true that these facts were noted, it is critical to our inquiry to recognize that Davis had a state remedy because the charges of shoplifting against him had been dismissed, and he had not been found to be a shoplifter. The information in the flyer was untrue, thus establishing the basis for a defamation claim. Again, assuming the DHS central registry now reflects the finding of the Trial Court that the report is “unsubstantiated,” a finding which has not been appealed, nothing in the central registry listing concerning Heath is untrue.

Also cited is Goss v. Lopez, 419 U.S. 565 (1975). The case involved an Ohio public school system which permitted suspensions without notice or hearing either prior to or within a reasonable time after the suspension. The case is inapplicable for several reasons, the primary one being that the Court recognized first that the students had a constitutionally protected property interest in their entitlement to a public education, the direct deprivation of which was at hand.

Another significant reason the Goss case does not help is that the portion of the case on which Mr. Heath relies is a direct quotation from the Constantineau case, the effect of which was limited by the Paul case. While the Goss case also cites the Roth case for the same proposition, it is again the Constantineau case to which the quoted language must be attributed.

DHS cites Codd v. Velger, 429 U.S. 624 (1977), a per curiam opinion involving reference in a former police officer’s personnel file to a possible suicide attempt. The District Court had found no property interest in continued employment and no stigmatization which implicated constitutional interests, but the Court of Appeals found there to be a stigma problem. The Supreme Court reversed, concluding at pp. 628 and 629:

Even conceding that the respondent’s termination occurred solely because of the report of an apparent suicide attempt, . . . respondent has at no stage of this litigation affirmatively stated that the ‘attempt’ did not take place as reported. The furthest he has gone is a suggestion by his counsel that ‘[i]t might have been all a mistake, [i]t could also have been a little horseplay.’ This is not enough to raise an issue about the substantial accuracy of the report. Respondent has therefore made out no claim under the Fourteenth Amendment that he was harmed by the denial of a hearing, even were we to accept in its entirety the determination by the Court of Appeals that the creation and disclosure of the file report otherwise amounted to stigmatization within the meaning of Board of Regents v. Roth.

In this case there is no doubt the information Mr. Heath seeks to have expunged, i.e,, a report of suspected child abuse now marked “unsubstantiated,” is true. He has shown no invasion of a property interest. The statute does not violate Mr. Heath’s right to due process of law.

4. Equal protection

Mr. Heath next argues the statute violates his right to equal protection of the laws by creating a classification of persons which is wholly arbitrary. J.W. Black Lumber Co. v. Arkansas Pollution Control & Ecology Dep’t., 290 Ark. 170, 717 S.W.2d 807 (1986). He argues the classification created discriminates between those who have been accused and found innocent of child maltreatment and those who have never been accused. The accused and the non-accused are both innocent, but the accused have their names placed in the central registry. DHS agrees that a classification may exist but argues that the “any rational basis” test of Arkansas Hospital Association v. Arkansas State Board of Pharmacy, 297 Ark. 454, 763 S.W.2d 73 (1989), is satisfied because the maintenance of the names of persons against whom unfounded accusations have been made permits them to substantiate malicious reporting violations by tracking the names of those who frequently make reports which prove to be unfounded. It also points out that maintaining the names of accused persons against which unfounded reports have been made is necessary to establish patterns of continuous and cumulative injuries which, in isolation, would not rise to the level of substantiated abuse. We agree that both these reasons provide a rational basis for maintaining unfounded accusation records in the central registry.

5. Privacy

DHS argues that the Supreme Court has not extended the right of privacy to matters relating to the government collecting and retaining data concerning private citizens. We agree that is the essence of the decision in Whalen v. Roe, 429 U.S. 589 (1977). The case involved the collection of data by New York concerning the dispensing of Schedule II drugs. In the time in which the statute had operated the information had been utilized twice. The petitioners, patients and physicians, argued the information was unnecessary and invaded their right to privacy. On the necessity issue, the Court said, at p. 597, “State legislation which has some effect on individual liberty or privacy may not be held unconstitutional simply because a court finds it unnecessary, in whole or in part.” On the privacy issue the Court was somewhat more reticent and stated, at pp. 605 and 606:

The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures . . . nevertheless New York’s statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual’s interest in privacy. We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private data—whether intentional or unintentional—or by a system that did not contain comparable security provisions. We simply hold that this record does not establish an invasion of any right or liberty protected by the Fourteenth Amendment.

Given the safeguards afforded by the statutory scheme at issue, we are satisfied that the legislative enactment remains within the scope of the limits stated in the Whalen case.

Mr. Heath cites Eddy v. Moore, 5 Wash. App. 334, 487 P.2d 211 (1971), which dealt with the question of the legality of the retention of a record of an acquitted person’s fingerprints and photographs in police files on privacy grounds. After analyzing State of Washington and federal law, the Court concluded at 487 P.2d, pp. 217 and 218:

We believe the right of an individual, absent a compelling showing of necessity by the government, to the return of his fingerprints and photographs, upon an acquittal, is a fundamental right implicit in the concept of ordered liberty and that it is as well within the penumbras of the specific guarantees of the Bill of Rights ‘formed by emanations from those guarantees that help give them life and substance’. Griswold v. Connecticut, 381 U.S. 470 (1965).
It will take a compelling showing on the part of the state to justify a retention of the fingerprints and photographs. . . .
The Washington statutes governing what is done with fingerprints and photographs upon acquittal of an accused are too limited in their scope. Their failure to provide for return of the fingerprints and photographs upon acquittal, absent a compelling showing justifying their retention, is a constitutionally defective omission.

The Eddy case is distinguishable for numerous reasons but primarily because the nature of the intrusion into privacy diifers so greatly. Fingerprints and photographs which could be utilized in criminal investigations or photo identifications for uncharged crimes are substantially different from the listing of one’s name in a registry. Both the potential for misuse and the lack of any stated safeguards make a significant difference, therefore, the retention of this information was also probably outside the scope of the later ruling in the Whalen case.

We are persuaded by the reasoning in Wade v. Goodwin, 843 F.2d 1150 (8th Cir. 1988), that the maintenance of Heath’s name on the central registry does not constitute an invasion of his privacy. William Wade was placed on a list of persons identified as “survivalists,” and the list was to be circulated to the State Troopers. Pursuant to an FOIA request, the list was published in newspapers of wide and local circulation. Wade alleged the publication invaded his right to privacy. After stating that the “constitutional right to privacy is generally limited to only the most intimate aspects of human affairs,” the Court said:

At argument Wade candidly conceded that it was highly doubtful, if not impossible, to prove any real damages as a result of the compilation or publication of the ‘list,’ and counsel stated that primarily Wade wanted a ‘name clearing’ hearing. Wade evidently believes that a ‘good name is rather to be chosen than great riches, and loving favor rather than silver and gold.’ Proverbs Ch. 22, verse 1. Perhaps unfortunately, neither this court nor the district court has jurisdiction under § 1983 to give Wade a name-clearing hearing. At bottom, his complaint alleges, if any cause, a state tort action for defamation of character.

We agree with that conclusion. There is no constitutional violation here, thus we reverse the Trial Court’s order which required immediate expungement of the record in issue.

Reversed and dismissed.

Corbin and Brown, JJ., dissent.

Donald L. Corbin, Justice, dissenting. I dissent.

The majority determines that “nothing in the central registry listing concerning Heath is untrue.” This finding clearly goes against the determinations by the trial court that there was no credible evidence to support the charge and that the court remained convinced that to allow an innocent man’s name to remain on a central list of child abusers for three years with all its potential nuisances is a violation of that individual’s constitutional rights. To be fair, the physical act of spanking the child at school was not controverted — but a judicial finding was made that the act of child abuse was untrue.

The DHS’ statutory reporting scheme as it relates to the treatment Mr. Heath is receiving should be examined within the following framework: What safeguards are afforded by the statutory scheme so as to evidence a proper concern with, and protection of, the individual’s interest in privacy as alluded to in Whalen v. Roe, 429 U.S. 589 (1977)? There is none!

In Riggs, Peabody & Co. v. Martin, 5 Ark. 506 (1884), the court declared unconstitutional a legislative act that among other things precluded a creditor of an estate from asserting his claim by affidavit but required that he appear in open court to assert his claim. The court stated, “[t]he Legislature certainly does not possess the power to cut off all remedy or demands against the estate of deceased persons, or so to impair the right or clog its assertion as to render it inoperative or valueless.” The legislature places an onerous burden on the assertion of his rights, and oppresses him not only by requiring a useless but expensive act to be done, and when it is performed, it allows it to have no weight or influence in his favor in the cause. In reaching this conclusion, the court noted:

It is a maxim of universal justice pervading the whole system of the common and civil law that wherever a party has a legal right he is entitled to a legal remedy to enforce it. For, if this was not the case, it could not be said that the laws reigned and governed the rights of contract. It is the obligations of the laws compelling men to perform their legal duties or punishing them for their violation that gives security and affords protection to life, liberty and property; and the peaceful and unfettered enjoyment of these blessings mark the boundaries between just and arbitrary governments.

Id. at 508-09. This case turned on the convenience to the creditors of an estate. Surely the state owes as much to Mr. Heath.

In Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972), we addressed an issue of an infringement of a property interest, stating:

A purely arbitrary or capricious exercise of legislative power, whereby a wrongful and highly injurious invasion of property rights is practically sanctioned and the owner stripped of all remedy is wholly at variance with the principles of due process. In the concrete, due process means that in a contest concerning rights of life, liberty or property, a citizen will be given a reasonable opportunity to contest the propriety of each step in the proceedings against him. Since notice and an opportunity to be heard are prerequisites of jurisdiction and jurisdiction a prerequisite of a valid judgment, the legislature is without authority to dispense with these requirements of due process.

Id. at 1208, 482 S.W.2d at 789 (citations omitted) (emphasis added).

What a hollow victory it is for Mr. Heath. He is declared innocent of child abuse in our state court system which utilized concepts of due process, but is still forced for three years to carry the label of child abuser by an administrative agency of the state acting under the auspices of the state legislature. I do not know how the majority can assume there is a report of suspected child abuse now marked “unsubstantiated.” If anything, the record reflects to the contrary. This is evident in its motion for clarification and amendment to the trial court requesting a modification of its order of December 10,1990, so as to indicate that the report of alleged child abuse “is determined unfounded by the court and the central registry record should accordingly be corrected.” Thus it would seem to this dissenter, that DHS is of the opinion it has no authority to correct its own records without an order by the court. By implication, I am led to the conclusion that such a correction has not and will not be made.

Surely, the courts have the inherent power to provide a remedy to one whose rights have been violated by the capricious exercise of legislative power as in the instant case. What good does it do to provide Mr. Heath procedural due process in our court system but deny him a remedy or any sense of justice?

What we now have are these reports and conclusions by DHS personnel and its Hearing and Appeals Board depicting John Heath as a child abuser. DHS’ record will not reflect that a court of this state has determined to the contrary. And now, we refuse to act. This is wrong.

Reputation, for the most part, has not been determined to be a property interest. The reputation of Mr. Heath under the facts of the instant case may very well rise to the level of a property interest. I can think of no higher damage, in dollars and cents, to an educator being labeled a child abuser by a state agency. What school district board in its right mind would ever look beyond the DHS record when considering Mr. Heath for employment? The inquiry would stop right there. I do not see this prospect as being speculative. It is a very real damage to his property interest encompassing income and advancement in the field of education. It is bad enough that the court records of his trial will be around forever.

Brown, J., joins in this dissent.


text:
    Amaechi IGWE v. STATE of Arkansas
    CR 92-1242
    849 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered March 1, 1993

      William R. Simpson, Jr., Public Defender, by: Joseph Cordi, Jr., Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Amaechi Igwe, was tried for possession of heroin with intent to deliver and possession of drug paraphernalia. He waived his right to a trial by jury and was tried and convicted by a circuit judge. He appeals and argues only that the evidence was insufficient to show he possessed the heroin with the intent to deliver it. The State contends we should not consider the issue because Mr. Igwe’s counsel failed to renew his motion for a directed verdict at the close of the evidence. We hold that, in a trial by the court without a jury, it is unnecessary to raise the question of sufficiency of the evidence by motion at the close of the trial to preserve the issue for appeal. We have considered the evidence which was presented to the Circuit Court, and we hold it was sufficient to support the conviction.

1. Sufficiency of the evidence

Police officers arrested several persons at a residence in Little Rock. One of those arrested cooperated in a plan to have Igwe come to the residence where he might also be arrested. An officer testified “a phone call was made” and Igwe showed up some 20 minutes later with a “paper” containing powder and a crack pipe. No one testified to what was said in the phone conversation which apparently led to Igwe’s subsequent arrival.

The powder confiscated from Igwe was tested and found to weigh 1.175 grams with a pure heroin content weighing .446 grams. According to Ark. Code Ann. § 5-64-401 (d) (Supp. 1991) possession of more than 100 milligrams (.100 grams) of heroin creates a rebuttable presumption that it is possessed with intent to deliver. It was thus up to Mr. Igwe to present evidence to rebut the presumption. The only evidence he presented bearing on the issue was his own testimony that he was a drug user, carried the heroin for his own use, and had come to the residence where he was arrested because he had been informed he could obtain cocaine there.

The general rule with respect to sufficiency of the evidence is:

The evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). We will affirm the verdict of the trial court, if it is supported by substantial evidence, and circumstantial evidence may constitute substantial evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989). To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992).

Lukach v. State, 310 Ark. 38, 834 S.W.2d 642 (1992).

In determining whether there is substantial evidence, the court reviews the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977).

While Igwe argues that the drugs fond in the search were for his personal consumption, the Trial Court clearly did not believe him. The question was for the fact finder, in this case the Trial Court, to resolve.

2. Directed verdict motion

In Greer v. State, 310 Ark. 522, 837 S.W.2d 884 (1992), we wrote:

Appellant’s argument is a challenge to the sufficiency of the evidence, and, since appellant did not move for a directed verdict at the close of all the evidence, we do not address the issue even though this was a bench trial. See Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992).

The Collins case was an appeal from judgment which resulted from a jury trial. Collins had failed to renew a motion for a directed verdict at the close of all evidence. We cited Ark. R. Crim. P. 36.21(b) which provides:

When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.

We noted that although Collins characterized his trial counsel’s omission as a failure to move for directed verdict “at the end of the State’s case,” both the State and the defense rested after presentation of the State’s case, and no motion was made. Thus we concluded that counsel failed to question sufficiency of the evidence at the close of all the evidence as well and pointed out that the rule is firmly established that we do not consider challenges to the sufficiency of the evidence when defendants do not comply with Rule 36.21.

In the Greer case we obviously realized we were dealing with a bench trial rather than a jury trial, but we said the motion was required despite that fact without spelling out our reasons.

Other than in the Greer case, we have not ruled on this question when construing the Rules of Criminal Procedure, but we have the identical provision in our Rules of Civil Procedure 50(e). We have held that subsection (e) does not apply to a non-jury trial. Sipes v. Monroe, 287 Ark. 244, 697 S.W.2d 905 (1985); Bass v. Roller, 276 Ark. 93, 632 S.W.2d 410 (1982). In the Bass case the appellees argued that the appellants waived an argument for additional damages because Rule 50(e) required that a motion for new trial based upon insufficiency of the evidence is waived unless it is preserved through a motion at the close of all the evidence or in a motion for new trial. The Rule, which has since been amended to omit reference to the motion for new trial and judgment notwithstanding the verdict, provided:

When there has been a trial by a jury, the failure of a party to file a motion for directed verdict at the conclusion of all the evidence, or a motion for judgment notwithstanding the verdict, or a motion for new trial because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.

It was the first time we were called upon to decide whether Rule 50(e) applied to a non-jury trial. We concluded the Rule meant exactly what it said and noted that prior to the adoption of the Rule there was a requirement that the matters stated in Rule 50(e) applied both to a jury and non-jury trial. We held that, by specifically stating that it applied to a jury trial, the Rule by implication excluded applicability to cases tried without a jury.

The issue we consider here was not argued by the parties in the Greer case. Any reasons we may have had for applying the requirement of a motion for directed verdict at the close of a criminal bench trial are easily overcome when we consider the clear wording of the Rule limiting the requirement to jury trials and our assumption that the main purpose of a judge trying a case without a jury is to determine the guilt or innocence of the accused with the sufficiency of the evidence as the point of the trial.

We find no authority for applying the requirement of Rule 36.21 in a non-jury situation. Our Court of Appeals has considered the matter on several occasions, and has held that the Rule does not require the motion in a non-jury trial. Hattison v. State, 36 Ark. App. 128, 819 S.W.2d 298 (1991); Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1991); Smith v. State, 30 Ark. App. 111, 783 S.W.2d 72 (1990); and Doby v. State, 28 Ark. App. 23, 770 S.W.2d 666 (1989).

We must overrule our decision in the Greer case to the extent it required a criminal defendant in a non-jury trial to move for a directed verdict at the conclusion of the evidence to preserve the issue of the sufficiency of the evidence on appeal.

Affirmed.


author: Tom Glaze, Justice. Per Curiam.

text:
    MERCEDES-BENZ CREDIT CORPORATION v. Jerry MORGAN
    92-982
    850 S.W.2d 297
    Supreme Court of Arkansas
    Opinion delivered March 1, 1993
    [Supplemental Opinion Denial of Rehearing April 5, 1993.]

      Arnold, Grobmyer & Haley, by: Robert R. Ross, for appellant.

      Dodds, Kidd, Ryan & Moore, by: Robert T. James, for appellee.

      Brown, J., not participating.

   Tom Glaze, Justice.

This tort of conversion case was commenced by Dr. Jerry Morgan after his 1984 Porsche had been repossessed by Mercedes-Benz Credit Corporation (MBCC). Morgan purchased the Porsche from Riverside Motors and afterwards, Riverside assigned the purchase installment contract to MBCC. Under the contract, Morgan was to make a payment of $253.37 on the first day of each month for forty-eight months commencing March 1,1990. Morgan was indisputably late in his payments, and on March 22,1991, MBCC decided to exercise its right under statutory law and the parties’ contract to self-help repossession. MBCC peacefully and without incident gained possession of the Porsche on April 8, 1991. Following repossession, Dr. Morgan brought his account current. MBCC then offered to return the Porsche to Morgan, but he refused, choosing instead to file this conversion action against MBCC.

Prior to trial, MBCC moved for summary judgment which the trial court denied. The parties tried the case to a jury which returned a verdict for Dr. Morgan in the sum of $11,900.00. MBCC filed motions for directed verdict and for judgment notwithstanding the verdict, all of which were denied. The trial court also awarded attorney’s fees to Morgan. MBCC brings this appeal arguing the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict and in awarding Morgan attorney’s fees.

Morgan proceeded below on two theories, namely (1) he was not in default when MBCC decided to repossess Morgan’s car, and alternatively (2) if Morgan was in default, MBCC had established a course of dealing by accepting late payments, so MBCC was required to put Morgan on notice that it would no longer allow late payments and would require strict compliance with the parties’ contract. Both of these theories were presented to the jury, and if Morgan is correct on either argument, we must affirm.

As to Morgan’s first point, our review of the record shows he was clearly in default at the time MBCC repossessed Morgan’s car. Morgan makes much of the argument that MBCC had miscalculated the receipt of his late February 1 and March 1, 1991 payments. He showed MBCC had misapplied his February 1 payment to the wrong account and mistakenly delayed in crediting this payment to Morgan’s correct account until April 15, 1991. Morgan argued MBCC had actually accepted his late February 1 payment well in advance of its declaring Morgan in default. Morgan also claimed that MBCC had accepted his late March 1 payment on April 1,1991. In both cases, Morgan asserts his account was current prior to MBCC’s repossession of Morgan’s car on April 8, 1991.

Although the record appears to support Morgan’s argument as to his February and March payments, the evidence also reflects he still was late on his payment due on April 1,1991, which was not received by MBCC until on or about April 11,1991 — several days after MBCC repossessed Morgan’s car. In sum, we conclude MBCC is correct in its argument that Morgan was, indeed, in default when it regained possession of Morgan’s car. That being so, MBCC argues it was not liable for conversion.

Accordingly, MBCC relies on the case of Ford Motor Credit Co. v. Herring, 267 Ark. 701, 589 S.W.2d 584 (1979), where the Herrings purchased two pickup trucks which were financed by Ford Motor Credit Company and the purchase contract allowed repossession of the trucks if the Herrings defaulted in their payments. That is what occurred. The Herrings subsequently sued Ford Motor Credit Company for conversion of the trucks and a jury awarded the Herrings a verdict. This court reversed the jury verdict and reiterated the right of the seller to repossess the vehicle upon default if it could be done without a breach of the peace. See also Ark. Code Ann. § 4-9-503 (1987). The court held that, because the Herrings were in default in their payments and their trucks had been peacefully repossessed, the Herrings had failed to present sufficient evidence to establish a fact question that the repossession of the trucks constituted a conversion.

Here, Morgan’s argument that he was not delinquent in his account at the time his car was repossessed is not supported by the evidence, and if that were the only issue, we would reverse, holding MBCC was within its rights as set out in Herring.

The Herring case, however, is not controlling here because it does not address Morgan’s second theory or argument. In other words, while the Herring case correctly upheld a seller’s or secured creditor’s right to repossess collateral when a debtor is in default, the Herring court was not confronted with the argument Morgan makes here — where the secured creditor (MBCC) routinely accepts a debtor’s (Dr. Morgan’s) delinquent payments, does the creditor waive strict compliance with the parties’ contractual payment and enforcement provisions, at least until the creditor notifies the debtor that strict compliance will be expected henceforth?

Morgan’s theory argued below and on appeal is well-grounded in legal authority. In pre-code cases, this court adhered to the principle that acceptance of late payments waives strict compliance with contract terms specifying time of payments. See Commercial Credit Co. v. Ragland, 189 Ark. 349, 72 S.W.2d 226 (1934); General Motors Acceptance v. Hicks, 189 Ark. 62, 70 S.W.2d 509 (1934); see also Ford Motor Credit Co. v. Waters, 273 So.2d 96 (Fla. Dist. Ct. App. 1973), (where seller of automobile had consistently accepted late payments from the buyer, who had made more than half of the thirty-six monthly payments when the vehicle was repossessed at time buyer was two months behind, the court held the seller’s conduct led buyer to believe late payments would be accepted and therefore buyer had a right to be notified, prior to repossession, of any modification of such conduct, and in absence of such notice, buyer was entitled to recover for wrongful repossession.)

Professor Steve H. Nickles thoroughly discussed in his article, Rethinking Some U.C.C. Article 9 Problems, the foregoing principle concerning the effect of a creditor’s acceptance of late payments as follows:

A similar case involves a secured party who has regularly accepted late payments but eventually decides to repossess when the debtor fails to make the next payment on time. A clause in the security agreement usually gives the creditor the right to declare the contract in default if any payment is delinquent. When sued by the debtor, the secured party argues that this contract language entitled him to repossess despite the established pattern of accepting late payments and foregoing repossession. The courts typically hold that “an established course of dealing under which the debtor . . . makes continual late payments and the secured party . . . accepts them does not result in a waiver of the secured party’s right to rely upon such a clause in the agreement authorizing him to declare a default and repossess the chattel.” But “a secured party who has not insisted upon strict compliance in the past . . . must, before he may validly rely upon such a clause to declare a default and effect repossession, give notice to the debtor. . . that strict compliance with the terms of the contract will be demanded henceforth if repossession is to be avoided. By his course of dealing the secured party has, in effect, waived the right to repossession based on defaults in making timely payments. The secured party must then reinstate the right by giving the debtor notice that strict compliance with the contract is now expected before a late payment can justify repossession. In many of these cases such notice has not been given, and the secured party is found liable for wrongful repossession.

34 Ark. Law Rev. 1, 137 (1980-81) (emphasis added).

In the present case, Dr. Morgan made only one timely payment of the fourteen monthly payments required prior to MBCC having repossessed Morgan’s automobile. The thirteen late payments ranged from a few days to more than thirty days delinquent from the due date required under the parties’ agreement. MBCC’s personnel had contacted Morgan concerning his delinquent payments, but no one at MBCC ever informed Morgan that MBCC intended to commence strict enforcement of its rights under their contract. The record shows that shortly before it repossessed Morgan’s Porsche on April 8,1991, MBCC had again accepted another late payment (March) on April 1, 1991, and it also accepted Morgan’s delinquent April payment on April 11,1991. In fact, MBCC even tendered the car’s return to Morgan when Morgan became current on his account. Clearly, a jury, under the above authority, could have found that (1) MBCC, by its course of dealing, had waived its right to repossession based on its having repeatedly accepted late payments, and (2) in order to reinstate its right under the parties’ contract, MBCC was required to give Morgan notice that MBCC expected strict compliance in future dealings. If MBCC failed to give such notice in these circumstances, it would then not have the right to declare a default and repossess its collateral.

At this point, we note that the secured party’s liability for wrongful repossession is usually based on the common law rule of conversion. See Nickles, 34 Ark. L. Rev. at p. 139. The Hicks case previously cited was such a repossession case where this court upheld a buyer-debtor’s claim that the creditor committed conversion when the creditor wrongly took possession of her refrigerator. Conversion is the exercise of dominion over the property in violation of the rights of the owner or person entitled to possession. Herring, 267 Ark. 701, 589 S.W.2d 584. As discussed above, MBCC failed to reinstate its right under the parties’ contract to declare default and to repossess its collateral for late payments. As a consequence, its repossession of and exercise of dominion over Morgan’s automobile in these circumstances sufficiently supported the jury’s finding of conversion.

Before leaving this point, we acknowledge MBCC’s reliance on Westlund v. Nelson, 1 Ark. App. 268, 647 S.W.2d 488 (1983). MBCC argues that Westlund stands for the proposition that acceptance of a late payment precludes acceleration because of the lateness of that payment, but is not a waiver of the right to accelerate when default occurs in a subsequent installment. See Rawhide Farms v. Darby, 267 Ark. 776, 589 S.W.2d 210 (Ark. App. 1979). Thus, MBCC concludes that, while it may have accepted thirteen late payments from Morgan, Morgan was still delinquent in his last April 1 payment, and under the Westlund rationale, MBCC could declare default and enforce its rights under the parties’ contract by repossessing Morgan’s car.

First, we note that MBCC never argued Westlund below either in support of its directed verdicts or its motion for judgment notwithstanding the verdict. MBCC relied simply on the fact that Morgan was in default, and under the holding in Herring, it had the right to repossess Morgan’s car. On the other hand, Morgan, as discussed above, argued, when opposing MBCC’s directed verdict motions and during his closing argument, that by accepting late payments, MBCC had established a course of dealing which required MBCC to notify Morgan that it expected future payment to comply with the parties’ contract. Morgan, without objection, argued this theory to the jury and emphasized that MBCC never gave Morgan such notice and therefore it had no right to repossess Morgan’s car when it did.

In sum, MBCC simply failed to object or attack the legal soundness of Morgan’s course of dealing argument below, nor did it argue that the principle in Westlund should control over Morgan’s theory. Neither the trial court nor the jury was apprised of the legal argument MBCC now advances for the first time on appeal. Because substantial evidence was presented that Morgan never received notice from MBCC that it would henceforth require prompt payments under the parties’ contract, the jury could have readily determined MBCC wrongfully repossessed Morgan’s vehicle when it did. This is especially true since MBCC continued its pattern of accepting late payments from Morgan by accepting his late April 1 payment on April 11,1991, and offering to return Morgan his car. We note further that it was MBCC’s burden to demonstrate error and having failed to do so, we must affirm. Jenkins v. Goldsby, 307 Ark. 558, 822 S.W.2d 843 (1992).

In its second point for reversal, MBCC contends the trial court erred in granting $2,500 in attorney’s fees to Dr. Morgan pursuant to Ark. Code Ann. § 16-22-308 (1987). MBCC is right. Section 16-22-308 provides for a reasonable attorney’s fee in certain civil actions, including breach of contract relating to the purchase or sale of goods, wares or merchandise. Tort actions are not included. See Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992). Here, Morgan’s claim was based on the tort of conversion, not contract. Therefore, his request for attorney’s fees should have been denied.

APRIL 5, 1993

Robert R. Ross, for appellant.

Robert T. James, for appellee.

For the reasons above, we affirm the jury verdict entered in Morgan’s behalf, but reverse and remand the trial court’s award of attorney’s fees.

Brown, J., not participating.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Per Curiam.

MBCC petitions for rehearing asserting this court erred in stating MBCC never argued Westlund v. Nelson, 7 Ark. App. 268, 647 S.W.2d 488 (1983), below either in support of its directed verdict motions or its motion of judgment notwithstanding the verdict. It submits a motion to supplement the record requesting us to include a trial brief filed below which recites the Westlund case in support of MBCC’s motion of judgment NOV. MBCC says it also orally mentioned Westlund to the trial judge in connection with its motion for summary judgment. MBCC concedes that these two references to the Westlund holding were never abstracted, but it asserts those references became relevant only when this court sua sponte observed that the Westlund argument was not made below. Of course, we observed this issue only because MBCC mentioned the Westlund holding in its reply brief on appeal, and upon examining the abstract, we were unable to locate where the Westlund principle had ever been mentioned below. We note, too, that there was no hint of such an argument having been made below especially since the record reflects MBCC made no effort to submit this particular legal theory to the jury.

MBCC had the burden to bring up a sufficient record to demonstrate that the trial court was in error. SD Leasing, Inc. v. RWF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983). In addition, this court, had held that it is precluded from considering an argument on its merits where the party failed to abstract the portion supporting its argument. Kratzke v. Nestle-Beich, Inc., 307 Ark. 158, 817 S.W.2d 889 (1991). MBCC simply failed to meet these requirements as to the issue involving the holding in Westlund and whether that holding was controlling over the theories advanced by Dr. Morgan.

For the above reasons, we deny MBCC’s petition for rehearing.

Brown, J., not participating.

       No actual instruction was given on this theory even though Morgan argued this theory both to the trial court and the jury. Nor was an instruction tendered involving waiver or the principle in the Westlund case.

       We further acknowledge the existence of a “non-waiver/no oral modification” cause in the Retail Installment Contract. However, MBCC failed to present any argument as to that clause’s effect upon the parties’ course of dealing. Mindful of a split of authority, See Tillquist v. Ford Motor Credit Co. 714 F.Supp. 607 (D.Conn.1989); Barkley Clark, The Law of Secured Transactions Under the Uniform Commercial Code, ¶ 4.01 [3] (2d.ed. 1988); Ronald Anderson, Uniform Commercial Code, § 9-503:14 (3d.ed. 1985 & Supp. 1991), we refrain from deciding this issue until it is properly raised and argued in an appropriate case.


author: Robert L. Brown, Justice.

text:
    Essie BANKS, Guardian of Tamikia Cheatem, a Minor; and Doris Collins, Guardian of Mary Gibson, a Minor v. Linda Marie JACKSON
    92-748
    848 S.W.2d 408
    Supreme Court of Arkansas
    Opinion delivered March 1, 1993

      Wilson & Associates, by: J.L. Wilson, for appellants.

      Daggett, Van Dover & Donovan, by: Robert J. Donovan, for appellee.
   Robert L. Brown, Justice.

The appellants, who brought

this suit as guardians on behalf of two minors, Tamikia Cheatem and Mary Gibson, raise essentially two issues in this appeal from a verdict in favor of the appellee, Linda Marie Jackson. The first issue has to do with whether an accident reconstructionist can testify in a matter where there were eyewitnesses to the wreck involving the minor girls and Jackson. The second concerns whether the circuit court erred in refusing the introduction of certain hospital records relating to the minors’ injuries. We conclude that there was no abuse of discretion by the circuit court in either instance, and we affirm.

On May 28,1987, Tamikia Cheatem and Doris Collins, who were thirteen at the time, were riding double on the seat of a bicycle near West Side Elementary School in West Helena. A collision occurred involving their bicycle and a vehicle driven by Jackson. Tamikia Cheatem and an eyewitness, Caletter Greer, who was age sixteen at the time, testified that the appellants were hit from behind by Jackson. Jackson testified that the girls ran a stop sign and hit the side of her car. The minor girls were thrown from the bike and injured. Subsequently, the appellants, Essie Banks and Doris Collins, were appointed guardians for both girls, and they filed a complaint in that capacity, alleging that Jackson was negligent in causing the accident. Various injuries, as well as physiological and psychological impairments, were asserted. The appellants sought $475,000 in damages for Tamikia and $300,000 for Mary.

At trial four years later, conflicting eyewitness testimony was given by Tamikia Cheatem and Caletter Greer on the one hand and Jackson on the other. (Mary Gibson could not recall the facts of the accident.) Four days before trial, the appellants filed a motion in limine to prevent the testimony of Dr. Larry Williams, an accident reconstruction expert hired by Jackson. The motion was denied at trial, and Dr. Williams testified. The appellants also attempted to introduce the complete hospital record regarding treatment of the girls’ injuries, which had not been made available to either side until the first day of the trial. The circuit court sustained Jackson’s objection to the hospital records on the basis that they were provided too late. The jury found for Jáckson, and judgment was entered dismissing the complaint with prejudice.

The primary issue raised by the appellants concerns the propriety of the testimony of the accident reconstructionist. Initially, the appellants contend that they were advised too late that the defense planned to call Dr. Williams as an expert witness. More specifically, they argue that Jackson failed to respond to a 1989 interrogatory regarding the identity of the accident reconstructionist and the substance of his expected testimony until four days before trial which began on November 19, 1991.

The record reflects that the supplemental answers supplied by Jackson identifying Dr. Williams were dated November 4,1991, and mailed to counsel for appellants, according to the certificate of service, that same day. They were filed on November 6,1991, nearly two weeks before the trial began. While we cannot pinpoint from the record with any certainty the exact date when the appellants received the supplemental answers, in the due course of business it should have been well before November 19, 1991. We cannot agree that the circuit court abused its discretion in admitting this testimony.

In this regard it undoubtedly would have been preferable for Jackson to have disseminated the information earlier than she did. Still, Dr. Williams was made available to the appellants for deposition, either in person or by telephone, before trial. The appellants did not avail themselves of the opportunity to depose Williams and present no compelling reason for why they did not do so. Last-minute depositions are not unique in trial preparation, although admittedly this practice can be abused. In this case, however, we detect no evidence of abuse.

The supplemental answers included the following information about Dr. Williams’s expected testimony:

Dr. Williams has been asked to review all depositions, pleadings and evidence in the case and to give an opinion as to how the incident occurred and the relative speeds of the vehicles. Dr. Williams is of the opinion that the damage to the 1983 Cougar operated by Linda Jackson was struck on the right-hand side by the bicycle operated by the plaintiffs at an approximately 90 degree angle.

This information easily satisfies the requirements of Ark. R. Civ. P. 26(e)(1), which specifies that supplementation of responses include, “in the case of expert witnesses, the subject matter on which he is expected to testify, and the substance of his testimony.”

The heart of the appellants’ argument on the testimony of the accident reconstructionist is their assertion that the circuit court erred in allowing the testimony of such an expert under the facts of this case. The appellants are correct in noting that, as a general rule, attempts to reconstruct accidents by means of expert testimony are viewed with disfavor by this court. Drope v. Owens, 298 Ark. 69, 765 S.W.2d 8 (1989); B. & J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984). Nevertheless, the general rule has been liberalized since the first enactment of the Uniform (now Arkansas) Rules of Evidence in 1976. Drope v. Owens, supra; McElroy v. Benefield, 299 Ark. 112, 771 S.W.2d 274 (1989); Price v. Watkins, 283 Ark. 502, 678 S.W.2d 762 (1984). Specifically, this court has consistently recognized exceptions to the general rule where it appears that a particular situation is beyond the jurors’ ability to understand the facts and draw their own conclusions. See Drope v. Owens, supra, Price v. Watkins, supra. Under Ark. R. Evid. 702, the test for admissibility was liberalized to include situations where specialized knowledge “will assist the trier of fact to understand the evidence or to determine a fact in issue.” See also McElroy v. Benefield, supra; B. & J. Byers Trucking, Inc. v. Robinson, supra. Whether a particular case should be governed by the general rule or should be treated as an exception is a matter within the trial judge’s discretion. Drope v. Owens, supra; McElroy v. Benefield, supra.

Although the appellants cite Drope v. Owens, supra; B. & J. Byers Trucking, Inc. v. Robinson, supra; Price v. Watkins, supra; and several other cases handed down after the original enactment of the Rules of Evidence in 1976, they rely principally upon earlier authorities such as Waters v. Coleman, 235 Ark. 559, 361 S.W.2d 268 (1962); Henshaw v. Henderson, 235 Ark. 130, 359 S.W.2d 436 (1962); and Conway v. Hudspeth, 229 Ark. 735, 318 S.W.2d 137 (1958). Our focus in all three of the earlier cases was to assess whether the opinion testimony of state police officers was inappropriate on the basis that there was no evidence to indicate that it was beyond the jury’s ability to understand the facts and draw its own conclusion. In all three cases we concluded that the state police testimony was not warranted. In Waters v. Coleman, supra, for example, we said that where there were seven eyewitnesses engaged in a “swearing match” over uncomplicated facts, the jury was able to draw its own conclusions without the importation of expert opinion which amounted to a comment on the weight of the evidence.

However, with the enactment of Rule 702 the emphasis of our inquiry became not whether the jury could ultimately understand the evidence but whether the expert could assist the jury in that endeavor. This provided a broader, more expansive window for the admissibility of reconstructionist testimony. Moreover, we have held since Waters v. Coleman that the existence or non-existence of eyewitnesses in a given pase is not controlling on whether a reconstructionist might testify but only a factor to be considered by the trial court. Drope v. Owens, supra.

Since the enactment of Rule 702, we have agreed with the trial court in one case that the testimony of an expert was not necessary because the speed of a motorcycle was not beyond the comprehension of the jurors. Drope v. Owens, supra. On the other hand, in McElroy v. Benefield, supra, we upheld the trial court’s decision to admit an expert’s testimony where the reconstructionist evaluated skid marks, observed the displacement of and damage done to vehicles, and measured distances in order to arrive at speed estimates. We said there: “We have no difficulty in deciding that [the expert’s] testimony served to aid the jury in its understanding of the evidence in this cause.” 299 Ark. at 115, 771 S.W.2d at 276.

In the case before us now, the three eyewitnesses who testified offered statements that, in the words of the McElroy opinion, were “at extreme odds.” 299 Ark. at 114, 771 S.W.2d at 275. Tamikia Cheatem stated that the bicycle was ahead of the appellee’s car when the collision occurred. Caletter Green testified that she “heard a car coming fast” and maintained that the automobile struck the bicycle, which was traveling in the same direction. Linda Jackson stated that the girls were traveling toward her and that “they just came into my car.” The other injured girl, Mary Gibson, did not recall the circumstances of the accident. There were also significant areas of dispute concerning the nature of the damage sustained by both the car and the bicycle and the relative speed of the two and the impact of the bodies of the two girls on the car. Dr. Williams offered detailed testimony on these matters, with attention to the absence of damage to the front of Jackson’s car and the location of the initial contact point “just in front of the right front wheel.” He discussed the forward momentum of the bicycle and its riders upon impact and maintained that the damage to the bicycle and car was inconsistent with the claim that the car had run into the bicycle from behind.

Unlike the rather straightforward situation in Drope v. Owens, supra, where only the speed of a motorcycle was at issue, here a number of factors came into play, as well as directly contradictory testimony from the persons involved in the collision and one eyewitness. Dr. Williams, without question, assisted the jury in analyzing the physical evidence. In this instance, the reconstructionist satisfied the criteria of Ark. R. Evid. 702 by aiding the jury in understanding the evidence. Hence, the circuit court did not abuse its discretion in allowing the expert to testify.

The appellants also contend that Dr. Williams testified outside the scope of his expertise and that this was prejudicial error. They premise this argument on the fact that he had not visited the accident site, had not seen the actual vehicle involved in the accident — only photographs — and had first seen the bicycle just before the trial. In overruling the appellants’ objection, the circuit court noted that such observations were better suited for cross-examination than admissibility, and the appellants’ attorney was afforded the opportunity to attack the expert’s credibility. There was no error in this ruling.

For their second point, the appellants urge that the circuit court should have allowed them to introduce into evidence the complete medical records on the two girls from LeBonheur Children’s Medical Center which were received by the attorneys for the parties the first day of the trial. Jackson objected on the basis that the appellants had failed to comply with her interrogatory demand to “identify each and every document and other writing that you intend to introduce into evidence ...” and had further failed to supplement the response as required by Ark. R. Civ. P. 26(e). The circuit court sustained this objection, but assessed no blame against the appellants for this delay.

The case of Dunlap v. Buchanan, 293 Ark. 179, 735 S.W.2d 705 (1987), cited by the appellants, states that the language of Ark. R. Civ. P. 26(e)(2)(B) gives the trial court considerable latitude to excuse failure to supplement when the response to an answer changes, and it requires at least a passive concealment before any imposition of a sanction by the court. In the case before us, however, there was no finding of concealment by the appellants, passive or otherwise.

The trial court does have broad discretion in matters pertaining to discovery, and that discretion will not be second-guessed by this court absent an abuse of discretion that is prejudicial to the appealing party. Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991). Because there was no concealment by the appellants in this matter, the sanction imposed on the appellants in disallowing the exhibit may well have been error. Nevertheless, the jury returned a verdict in favor of Jackson. Because there was no liability assessed against Jackson, the issue of the medical treatment provided to the girls became irrelevant. Accordingly, we have difficulty discerning how the appellants were prejudiced by the court’s refusal to admit the complete hospital file into evidence. The appellants show us no basis for prejudice, and we note that they presented significant physician testimony to the jury as well as abbreviated hospital records. Without prejudice to the appellants, there is no basis for reversal.

Affirmed.

       In 1986, the Uniform Rules of Evidence enacted by the Arkansas General Assembly in 1976 were invalidated as improperly enacted. Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). That same date this court adopted the Rules in toto as the Arkansas Rules of Evidence.