author: Annabelle Clinton Imber, Justice. Ray Thornton, Justice,

text:
    Kathleen Wharton SMITH v. Joseph Burleson WHARTON, III, Executor of the Estate of Iola H. Wharton, Deceased; Joseph Burleson Wharton, III, Trustee of the Iola H. Wharton Living Trust dated July 29, 1997; Joseph Burleson Wharton, III; Joseph Clark Wood, A Minor; Marion Randolph Smith, Jr.; Thomas Christopher Smith and Kathleen Smith Shonert
    01-1045
    78 S.W.3d 79
    Supreme Court of Arkansas
    Opinion delivered June 20, 2002

      Huckaba Law Firm, P.A., by: Frank J. Huckaba, for appellant/ cross-appellee.

      Carney Law Firm, P.A., by: Jodi G. Carney, for appellee.
   Annabelle Clinton Imber, Justice.

This is a will-contest case. Iola H. Wharton executed a will in 1980 by signing her name. In 1997, she undertook to execute another will, a declaration of trust, and various other estate planning documents. Because Iola was no longer able to write her name, she signed these instruments by mark. FoEowing Iola’s death on April 1, 1998, the 1997 wiE was admitted to probate and the decedent’s son, AppeEee Joseph B. Wharton, III, was appointed as executor. Appellant Kathleen Wharton Smith, the decedent’s daughter, challenged the instruments executed by mark alleging, among other grounds not involved in this appeal, that the will, trust, and other instruments were not signed in the manner required by Arkansas law. The trial court, sitting as a chancellor and probate judge, found that the trust had been properly executed, but that the 1997 will had not been executed in accordance with the requirements of Arkansas law.

On appeal, Kathleen raises two points of error: First, that the trial court erred in concluding that the trust and trust documents were signed in compliance with Ark. Code Ann. § 16-55-102(a)(20) (1987); and second, that the trial court erred in allowing testimony by the attorney who not only drafted the instruments and represented Joseph in this litigation prior to the trial, but who also participated in the trial as an advocate. Joseph cross-appeals alleging that the trial court erred in ruling that the 1997 will was not executed in compliance with Ark. Code Ann. § 28-25-103 (1987) and in rejecting that will for probate. While we agree with Kathleen that the trial court erred in allowing an attorney to testify after the attorney had participated as an advocate during the trial, the error was not so prejudicial as to constitute reversible error under the facts of this case. Accordingly, as to the points raised on appeal and cross-appeal, we find no reversible error and affirm.

We review probate cases de novo, but we will not reverse the decision of the probate court unless it is clearly erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001). Due deference will be given to the superior position of the probate judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996). We also review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancery court unless it is clearly erroneous. State v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001). A finding of fact by the chancery court is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id.

On September 19, 1980, Iola executed the first will by signing her name in the presence of two attesting witnesses. The second will was executed on July 29, 1997. Because she had broken her right arm and lost the use of it, Iola placed her mark on the 1997 will in the presence of three attesting witnesses. One of the witnesses had typed Iola’s name on the will outside the presence of the other two witnesses.

Under the 1997 will, Joseph was named executor, and Iola’s entire estate was left “to the Trustee named and identified in the IOLA H. WHARTON LIVING TRUST.” A separate declaration of trust created the Iola H. Wharton Living Trust and named Joseph as the trustee and remainderman and Iola as the primary beneficiary. Iola placed all her personal property and, by quitclaim deed, 152.22 acres of real property in Columbia County into the trust. The trust specified how the trust assets were to be distributed upon Iola’s death. The first $45,000 was to remain in trust for the benefit of Norvelle Z. Turner, her housekeeper, and Joseph Clark Wood. Other sums of money would be distributed as follows: Mary Lisa Wharton, her daughter, $10,000; Joseph, $10,000; Marion Randolph Smith, Jr., $2,500; and Thomas Christopher Smith, $5,000. Iola’s personal and household effects would be divided among her three children: Kathleen, 20%; Joseph, 40%; Mary, 40%, with the remaining assets including lapsed gifts going to Joseph, as the remainderman.

The 1980 will left Iola’s personal and household effects to Kathleen and Joseph per stirpes, and bequeathed $2,000 to Norvelle and $2,000 plus some gold and diamond personal effects to Mary. The rest of her real and personal property was to be divided evenly between Joseph and Kathleen. Joseph and Kathleen were named coexecutors and co-trustees. As previously mentioned, Iola signed the 1980 will in the presence of two attesting witnesses.

This matter was tried to the court over the course of three separate hearing dates. Because the two attorneys who drafted the contested documents were expected to testify, the parties stipulated that neither attorney would serve as counsel at trial, but that both attorneys could remain in the courtroom during the proceeding.

At the first hearing on August 18, 1999, William J. Wynne, an attorney engaged in the private practice of law in El Dorado since 1951, testified that he prepared the 1980 will, including a proof-of-will affidavit, at Ida’s request while she lived in El Dorado. He verified the testamentary provisions of the will. After Iola moved to Mountain Home in 1994, he had no further connection with her as a client or friend. Next, Joseph testified about his duties and qualifications as trustee under the living trust. He also testified that he moved from Dallas to Mountain Home in the spring of 1997. At Ida’s request, Joseph contacted Lane Strother, an attorney engaged in the private practice of law in Mountain Home, to speak with him about preparing the will and living trust. Iola instructed Joseph to write down how she wanted to divide up her estate. After his mother checked his notes for accuracy, Joseph transferred the list to computer tape and took it to Mr. Strother. Joseph further testified that Mr. -Strother came out and spoke with Iola before he prepared the will and trust documents. At this point, Joseph went to the attorney’s office, picked up the documents and delivered them to Iola for her review. Mr. Strother then returned to Ida’s home on July 29, 1997, with two other witnesses. All three of them witnessed Iola make her mark on the will, trust, and related documents. Joseph was also present when his mother made her mark on the documents. During this hearing, Mr. Strother engaged in a colloquy with the trial court concerning Joseph’s duty to account under the trust. He also advised the court that a copy of an appraisal report would be identified as “Respondent’s Eight.”

At the second hearing on March 15, 2000, during Joseph’s testimony about tax returns filed on behalf of the estate, Mr. Strother again interjected that he had a copy of the 1040 tax return filed in 1998. The trial court then decided that Mr. Wynne would not be allowed to present legal argument regarding the documents executed in 1997. This led to a discussion about whether Mr. Strother should be allowed to testify as a witness following his earlier participation in the hearings. Next, Iola’s nurses were called to testify about her competency and the fact that Joseph did not attempt to control his mother or restrict access to her. Joseph also repeated his earlier testimony regarding the events leading up to the execution of the 1997 will and trust. His testimony was followed by that of Mary T. Sainé, an attesting witness. She recounted her observations about Iola’s state of mind on July 29, 1997, and she confirmed that Mr. Strother explained the terms of the will and trust to Iola. Ms. Sainé also testified that she witnessed Iola make her mark on both the will and the trust documents, and that when she typed the will and trust documents at Mr. Strother’s office, she typed Iola’s name on the documents. At this point, Kathleen noted Mr. Strother’s earlier participation in the trial and objected to him being allowed to testify as a witness. The trial court did not rule on the objection, but instead adjourned the hearing in order to review the transcript of the record.

The dispute over Mr. Strother’s role as a witness continued at the final hearing on April 12, 2000. Ultimately, the trial court ruled that Mr. Wynne was precluded from serving as an advocate; whereas, Mr. Strother was allowed to testify as a witness notwithstanding his participation as an advocate during the trial. In reaching this conclusion, the trial court reasoned that to disqualify or exclude “the person who drew the instruments, talked to the parties about their preparation [and] was present at their execution . . . would, in fact, work a substantial hardship.” Thus, Mr. Strother became the final witness and testified about the preparation and execution of the 1997 will and trust documents, as well as his observations concerning Iola’s testamentary capacity and the absence of any undue influence by her son, Joseph.

Admissibility of Attorney’s Testimony

We consider Kathleen’s second argument first. She contends that the trial court erred in allowing Mr. Strother to testify after he actively participated in the trial. In response, Joseph asserts the trial court correctly found that the exclusion of his attorney’s testimony would work a substantial hardship on him.

“The general rule is clear and unmistakable. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. The reasoning underlying the general rule is to prevent prejudice and a conflict of interest.” Arthur v. Zearley, 320 Ark. 273, 279, 895 S.W.2d 928, 931 (1995). Rule 3.7 of the Rules of Professional Conduct provides:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.

Model Rules of Professional Conduct 3.7 (2001). We have repeatedly admonished members of the bar that an attorney should not act as both trial counsel and as a material witness:

[W]e must once again express our disapproval of the conduct of an attorney who testifies in a case while also acting as an attorney in the case. Rushton v. First Nat. Bank of Magnolia, 244 Ark. 503, 426 S.W.2d 378 (1968); Old American Life Ins. Co. v. Taylor, 244 Ark. 709, 427 S.W.2d 23 (1968); Montgomery v. First Nat. Bank of Newport, 246 Ark. 502, 439 S.W.2d 299 (1969); Watson v. Alford, 255 Ark. 911, 503 S.W.2d 897 (1974); McWilliams v. Tinder, 256 Ark. 994, 511 S.W.2d 480 (1974); Dingledine v. Dingledine, 258 Ark. 204, 523 S.W.2d 189 (1975); Canal Ins. Co. v. Hall, 259 Ark. 797, 536 S.W.2d 702 (1976); Jones v. Hardesty, 261 Ark. 716, 551 S.W.2d 543 (1977); Enzor v. State, 262 Ark. 545, 559 S.W.2d 148 (1977); Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979).

Bishop v. Linkway Stores, Inc., 280 Ark. 106, 125, 655 S.W.2d 426, 436 (1983) (per curiam supplemental opinion). In Enzor v. State, 262 Ark. 545, 559 S.W.2d 148 (1977), we explained that “[a]n attorney who is to testify in an action should withdraw from the litigation. On the other hand, if an attorney is going to serve as an advocate for his client, he should refrain from testifying in the action.” Id. at 551, 559 S.W.2d at 151.

It is undisputed that Mr. Strother drafted the contested documents and represented Joseph in this litigation prior to trial. Due to the fact that Mr. Strother was expected to testify as a witness, Joseph retained another attorney, Jodi F. Carney, to represent him at the trial. Upon agreement of both parties, Mr. Strother remained in the courtroom throughout the proceedings and, in fact, sat at the counsel table. As previously mentioned, Mr. Strother integected comments about Joseph’s duty to make an accounting under the trust documents and advised the court regarding the introduction of an exhibit. As such, Mr. Strother acted as an advocate before he was allowed to testify as a witness.

To allow an attorney to testify under such circumstances would contravene the general rule expressed in Rule 3.7 of the Model Rules of Professional Conduct, unless any one of the three exceptions outlined in the rule is applicable to the case before us. As to the first two exceptions, Mr. Strother’s testimony did not involve an uncontested matter; nor did it relate to the nature and value of legal services rendered. The trial court allowed Mr. Strother to testify under the third exception based upon its finding that the exclusion of his testimony would work substantial hardship on the client. In so ruling, the trial court misinterpreted Rule 3.7. The term “disqualification” that appears in the third exception does not refer to the exclusion of a lawyer’s testimony; rather, it refers to a lawyer’s disqualification as an advocate. See the Commentary to Model Rules of Professional Conduct 3.7 (“[i]n determining whether the lawyer should be disqualified due regard must be given to the effect of disqualification on the lawyer’s client.”); McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W.2d 409 (1978) (“The rule against the attorney who becomes a witness continuing as an advocate was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him.”).

In this case, the opposing party was not attempting to call Mr. Strother as a witness in order to disqualify him from acting as an advocate at the trial. In fact, as of the first hearing date, Mr. Strother was expected to be a witness, and his client had retained another attorney, Ms. Carney, to represent his interests. Thus, Mr. Strother had already declared that his disqualification as an advocate would not work a substantial hardship on his client. Once the trial started and Mr. Strother reassumed his role as an advocate, it was too late for him to become a witness. Under these circumstances, we conclude that the trial court erred in allowing the attorney to testify as a witness. Our inquiry does not, however, end there.

We must decide whether the trial court committed reversible error when it allowed Mr. Strother to testify after he had participated as an advocate during the trial. The fact that an attorney has served as both witness and advocate in the same action does not require automatic reversal. B. A. McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990). We will not consider the attorney’s testimony as evidence, but if there is other evidence that will allow this court to affirm, we will do so. Id. Thus, in addressing the merits of the other issues raised on appeal and cross-appeal, we will disregard Mr. Strother’s testimony.

Sufficiency of Iola’s Mark on the Trust and Related Instruments

Kathleen argues that the trust and related instruments should be set aside because Iola’s mark should not be considered a signature unless her name is written near the mark and witnessed by a person writing his or her own name as a witness; that is, a signature by mark on a trust document must meet the same strict statutory requirements that govern the execution of a will. Joseph counters that execution of the trust and related instruments is not governed by the strict requirements of the Arkansas Probate Code, but by our case law and by Ark. Code Ann. § 16-55-102(a)(20) (1987).

“The purpose of proving one’s handwriting is to establish the fact that the instrument is genuine and that it represents the intent of the party against whom or for whose benefit it operates.” Carter v. Williams, 224 Ark. 378, 381, 273 S.W.2d 531, 532 (1954). In Carter, we upheld the validity of the instrument where a woman whose right arm was paralyzed orally acknowledged before a notary public that her signature was on a deed.

Section 16-55-102 of Arkansas Code Annotated provides that: “‘Signature’ or ‘subscription’ includes a mark, when the person cannot write, his name being written near it and witnessed by a person who writes his own name as a witness[.]” Ark. Code Ann. § 16-55-102(a)(20). This court has held that a deed of trust, signed by mark, is just as effective as if signed by written signature, absent an affirmative showing that it was not signed. Henry v. Union Sawmill Co., 171 Ark. 1023, 287 S.W. 203 (1926). To accept the mark as a valid signature, the person who writes the name must also sign his or her own name, or “it may be proved as genuine by other testimony, though there be no attesting witness to it.” Id. at 1026, 287 S.W.2d at 204.

In the instant case, Iola’s name was typewritten on the trust instrument. According to the notary public’s certificate of acknowledgment, Iola told him that she had signed the trust instrument. The facts stated in the acknowledgment are prima facie proof of Iola’s signature on the document. Ark. Code Ann. § 21-14-110 (Repl. 1996) (“All . . . acknowledgments taken by notaries public . . . shall be received as evidence of the facts therein stated in all the courts of this state.”). See also, Ark. R. Evid. 902(8) (2002); Mueller & Kirkpatrick, Evidence § 9.27 (2nd Ed. 1999). In addition to the prima facie case made by the certificate of acknowledgment, Mary T. Sainé testified that she witnessed Iola make her mark on the document. We, therefore, hold that the execution of the trust and related instruments was in compliance with Ark. Code Ann. § 16-55-102(a)(20) and our case law. The trial court’s ruling on this point is affirmed.

Cross-Appeal: Sufficiency of Iola’s Mark on the Will

Joseph’s only point on cross-appeal is that the trial court erred in ruling that the 1997 will was not properly executed. He notes that the 1997 will had three attesting witnesses whose signatures were notarized, and that Kathleen does not appeal the trial court’s finding that the will was not the result of undue influence, coercion, fraud, or a lack of testamentary capacity. Kathleen replies that the execution of the 1997 will failed to meet the statutory requirements. We agree with the trial court’s ruling and affirm.

The issue raised on cross-appeal requires us to engage in statutory interpretation. Initially, we point out our well-settled rules of statutory construction:

We review issues of statutory interpretation de novo, as it is . for this court to decide what a statute means. Fewell v. Pickens, 346 Ark. 246, 57 S.W.3d 144 (2001); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001); Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997).

Mississippi River Transmission Corp. v. Weiss, 347 Ark. 543, 550, 65 S.W.3d 867, 872-73 (2002).

We now turn to the specific statute that governs the execution of a will, Ark. Code Ann. § 28-25-103 (1987), in order to determine whether the 1997 will was properly executed. Section 28-25-103 provides:

(a) The execution of a will, other than holographic, must be by the signature of the testator and of at least two (2) witnesses.
(b) The testator shall declare to the attesting witnesses that the instrument is his will and either:
(1) Himself sign; or
(2) Acknowledge his signature already made; or
(3) Sign by mark, his name being written near it and witnessed by a person who writes his own name as witness to the signature; or
(4) At his discretion and in his presence have someone else sign his name for him. The person so signing shall write his own name and state that he signed the testator’s name at the request of the testator; and
(5) In any of the above cases, the signature must be at the end of the instrument and the act must be done in the presence of two (2) or more attesting witnesses.
(c) The attesting witnesses must sign at the request and in the presence of the testator.

Ark. Code Ann. § 28-25-103 (1987). This section has remained unchanged since its enactment in 1949. See History of Ark. Code Ann. § 28-25-103 (1987).

This court has had few occasions to interpret section 28-25-103, especially where the will is signed by the testator’s mark. In 1960, we held that the statute clearly requires the will to be executed in the presence of two or more attesting witnesses. Ash v. Morgan, 232 Ark. 602, 339 S.W.2d 309 (1960). The attesting witnesses must sign the will in the presence of the testator and in the presence of each other. Id. Three years later, this court ruled that a will was not executed in the manner required by the statute because the scrivener failed to write his own name as a witness to the testator’s mark, even though two other witnesses properly attested the will. Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963). In Green, we discussed the requirements of Ark. Stat. Ann. § 60-403 (Supp. 1963), now codified at Ark. Code Ann. § 28-25-103:

Sub-section (3) plainly provides that a testator’s signature by mark must be witnessed by a person who writes his own name as a witness to that signature. Sub-section (5) which follows, and is in addition to the requirement of (3), provides significantly that in case sub-section (3) is followed, such act “must be done in the presence of two or more attesting witnesses.” In other words, there are four methods for a testator to sign his will and, as we construe this statute, when we consider it as a whole and subsection (5) in particular, there must be at least two attesting witnesses in addition to the requirements of either of these four methods. We interpret the provisions of sub-sections (3) and (5) of this statute to be mandatory in requiring a minimum of three subscribing witnesses to make the will in question valid.

Id. at 831, 268 S.W.2d at 281.

Shortly thereafter, in Priola v. Priola, 237 Ark. 798, 376 S.W.2d 29 (1964), we stated that where the same two persons witness the testator’s mark and attest to the execution of the will, the will has not been executed in compliance with the statute. Our statutory interpretation in the Priola case included the following analysis of subsection (b)(5) of Ark. Code Ann. § 28-25-103:

But the new statute (§ 19 of Act No. 140 of 1949) says in Paragraph (5) that the person who writes the testator’s name must do so “in the presence of two or more attesting witnesses”; and certainly such person who writes the testator’s name cannot be an attesting witness to his own signature. In short, the attesting witness to the testator’s mark cannot also act in the dual capacity of an attesting witness to the will.

Id. at 801, 377 S.W.2d at 31.

In 1974, this court restated its prior holding that “where the testator signs by a mark, it is mandatory that three signatures be affixed, one to witness the testator’s mark and two to attest the will.” Patrick v. Rankin, 256 Ark. 310, 310-11, 506 S.W.2d 853, 854 (1974). Likewise, in Shamoon v. Tombridge, 291 Ark. 222, 723 S.W.2d 827 (1987), we reaffirmed the requirement of three attesting witnesses where a will is executed by mark:

This statute specifically requires that the testator, if he signs by mark, must have a witness who signs the document attesting to his mark .... The statute also requires that two attesting witnesses must sign at the end of the instrument.
We have interpreted this statute to be mandatory in order to validate a non-holographic will.

Id. at 223, 723 S.W.2d at 827-28. Furthermore, we concluded that two attesting witnesses and a notary public’s signature were not sufficient because the notary was merely notarizing the attesting witnesses’s signatures, not the testator’s mark. Id.

In the instant case, three witnesses attested to the execution of the will. The will does not refer to any witness as being a special witness to the mark, although the language used does state, in substance, that the mark was witnessed by all three attesting witnesses. However, none of the attesting witnesses wrote Iola’s name near her mark at the time of the signing of the will. Thus, the writing of the testatrix’s name by the witness to the mark was not done in the presence of two attesting witnesses. In fact, the writing of Iola’s name was done at Mr. Strother’s office at a different time, and the testimony does not show that anyone witnessed the writing of the name on the will.

Because this court has held that the person who writes the testator’s name must do so “ ‘in the presence of two or more attesting witnesses [,]’” we must conclude that the 1997 will was not executed in compliance with our statute. Priola v. Priola, 237 Ark. at 801, 376 S.W.2d at 31. To hold otherwise, this court would have to overrule prior case law construing the statutory requirements that govern the execution of a will by mark. We decline to do so, and affirm the trial court on cross-appeal.

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

Corbin, Thornton, and Hannah, JJ., concurring in part; dissenting in part.

Ray Thornton, Justice,

concurring in part; dissenting in part. In this case, we are asked to determine whether a will was validly executed. The majority opinion, relying on a case from 1964, which was based upon an untenable interpretation of Ark. Code Ann. § 28-25-103 (1987), concludes that Iola Wharton’s Last Will and Testament was not properly executed. The majority reasons that the will, which was witnessed by three witnesses, was not properly executed because Ms. Wharton’s name was typed on the face of the will prior to the time that Ms. Wharton placed her “X” on the document. I cannot agree with this conclusion and must respectfully dissent.

The majority opinion holds: “|B]ecause this court has held that the person who writes the testator’s name must do so ‘in the presence of two or more attesting witnesses,’ we must conclude that the 1997 will was not executed in compliance with our statute. Priola v. Priola, 237 Ark. At 801, 376 S.W.2d at 31.” In my view, the holding in Priola was that the same person who witnessed the authenticity of the signature mark could not also act as one of the two attesting witnesses. That was not the fact situation in the case now before us. Accordingly, that case is not controlling on the case sub judice.

Not only do I take issue with the majority’s interpretation of the holding in Priola, I must also take issue with Priola’s interpretation of the statutory requirements for execution of a will when the testator chooses to sign the will by marking it with an “X.” In Priola, the court stated:

When we compare §11512 and §11513 of Pope’s Digest (the previous statutes on the mode of executing a will) with §19 of Act No. 140 of 1919 as found in Ark. Stat. Ann. 60-403 (Supp. 1963) (the present statutes on the requirements for executing a will), the correctness of our holding in Green v. Smith, supra, becomes readily apparent. The old statute said in § 11513 Pope’s Digest that the person who wrote the testator’s name “shall write his own name as a witness to such will”; thus recognizing that the same person could write the testator’s name and also be a witness to such will. But the new statute (19 of Act No. 140 of 1949) says in Paragraph (5) that the person who writes the testator’s name must do so “in the presence of two or more attesting witnesses”; and certainly such person who writes the testator’s name cannot be an attesting witness to his own signature. In short, the attesting witness to the testator’s mark cannot also act in the dual capacity of an attesting witness to the will.

Priola, supra.

I do not interpret the relevant statutory provision as requiring that we invalidate a will because the testator’s name was typed prior to the marking of the “X” rather than printed by hand at the time the “X” was marked, and to the extent that Priola stands for that proposition, I would not hesitate to overrule the case on that point as a faulty interpretation of the statute. The “act” to which subsection five of Ark. Code Ann. § 28-25-103 refers is not the printing of the testator’s name by the mark; instead, the “act” refers to the testator’s signature by mark. Clearly the testator’s placement of the “X” on the document is the “act” that must be performed in the presence of two or more witnesses. If Priola holds otherwise, it is not a correct interpretation of the statute, and should be overruled.

In the case now on review, Ms. Wharton’s will was executed pursuant to Ark. Code Ann. § 28-25-103. The statute provides in relevant part:

(a) The execution of a will, other than holographic, must be by the signature of the testator and of at least two (2) witnesses.
(b) The testator shall declare to the attesting witnesses that the instrument is his will and either:
* * *
(3) Sign by mark, his name being written near it and witnessed by a person who writes his own name as witness to the signature; or
(5) In any of the above cases, the signature must be at the end of the instrument and the act must be done in the presence of two (2) or more attesting witnesses.
(c) The attesting witnesses must sign at the request and in the presence of the testator.

Id.

Without conflicting prior case law on the subject, we must look to the statutory provision of Ark. Code Ann. § 28-25-103 in our determination of whether Ms. Wharton’s will was properly executed. After reviewing the statute and the facts surrounding the case sub judice, I would hold that Ms. Wharton properly executed her will. Ms. Wharton signed the will using an “X.” Her name was typed underneath the “X” by Mary Sainé. Ms. Sainé then signed her name at the bottom of the attestation clause, along with two attesting witnesses, acknowledging that Ms. Wharton’s will was properly executed. Both the testator’s “X” mark and Ms. Saine’s authentication of that mark were done in the presence of the two attesting witnesses who signed an affidavit, stating that the testator affixed her mark, and declared the instrument to be her will and requested the witnesses to sign in her presence.

Nowhere in the statute is there a requirement that the printed name of the testator found under the “X” mark be placed there after the “X” is affixed. Therefore, the fact that Ms. Sainé typed Ms. Wharton’s name on the will prior to Ms. Wharton placing her mark on the will is of no consequence. The will was prepared by Ms. Sainé in one location and brought to Ms. Wharton for execution at a different location. The administrative procedure of typing the will and the name of the testator prior to its execution should not invalidate Ms. Wharton’s will. I would hold that the will complied with the statute and should have been admitted to probate.

We have held that in the interpretation of wills, the paramount principle is that the testator’s intent governs. Estate of Harp v. Harp, 316 Ark. 761, 875 S.W.2d 490 (1994). The result reached by the majority opinion frustrates Ms. Wharton’s intent. Ms. Wharton was under no undue influence when she placed her “X” on the will. Additionally, she was in full possession of her mental facilities at the time the will was signed. There was testimony that Ms. Wharton could read and write, but signed by mark only because of an injury to her arm. Clearly, Ms. Wharton’s intent was that her 1997 will dispose of her estate. Accordingly, I would reverse the trial court and admit her will executed July 29, 1997, to probate.

I respectfully dissent from the portion of the majority’s opinion which holds that Ms. Wharton’s 1997 will was not properly executed. However, I agree with the majority’s disposition of the remaining issues on appeal.

I am authorized to state that Justices Corbin and Hannah join in this dissent.

       Kathleen also averred that the instruments were procured by Joseph and that her mother lacked testamentary capacity and was the victim of undue influence, fraud, or duress. All claims asserted by Kathleen were filed in the probate proceeding and in a separate chancery court case.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    TAY-TAY, INC., Arkansas Payday Check Cashers, Inc., Two Cluck, Inc., d/b/a Payday Advance, and Jim Mead v. Brandon YOUNG, Jimmie Sue Spencer, and Karla Blackford
    01-1355
    78 S.W.3d 721
    Supreme Court of Arkansas
    Opinion delivered June 20, 2002

      Mixon Parker & Hurst, PLC, by: Donald L. Parker, II, and Harry S. Hurst, Jr.; and Wright, Lindsey & Jennings, LLP, by: Claire Shows Hancock, for appellants.

      Morgan & Turner, by: Todd Turner; and On, Scholtens, Willhite & Averitt, PLC, by: Chris Averitt, for appellees.
   Annabelle Clinton Imber, Justice.

This is one of a number of similar cases to come before this court involving check-cashing businesses. Brandon Young, Jimmie Sue Spencer, and Karla Blackford are representatives of a class of customers that utilized the deferred-presentment check-cashing services of Tay-Tay, Inc., Arkansas Payday Check Cashers, Inc., Two Cluck, Inc., d/b/a Payday Advance, and Jim Mead (hereinafter referred to jointly as “Tay-Tay”). On August 17, 2001, the trial court denied Tay-Tay’s motion to compel arbitration. Tay-Tay raises two points on appeal. First, Tay-Tay contends that the trial court erred in determining that the arbitration provision was unenforceable for lack of mutuality. Second, Tay-Tay asserts that the trial court erred in ruling that the arbitration provision was unconscionable. We hold that the arbitration provision is unenforceable for lack of mutuality and affirm.

The facts of this case are not in controversy. The class members utilized Tay-Tay’s deferred-presentment check-cashing services and paid fees, which if deemed to be interest would include annual interest rates of 300% to over 700%. Two types of agreements were used with customers — one had an arbitration clause and the other did not. Only the agreements with an arbitration clause are at issue in the instant appeal.

The points Tay-Tay raises on appeal are identical to those raised and rejected by this court in the companion case of The Money Place, LLC v. Barnes, 349 Ark. 411, 78 S.W.3d 714 (2002). The arbitration provision in the Tay-Tay Deferred Presentment Agreement is the same as the arbitration provision in The Money Place Deferred Presentment Agreement. The trial court reviewed both agreements, considered identical motions to compel arbitration, heard similar arguments, and issued virtually identical orders — only the names of the parties differed. Accordingly, we deem it unnecessary to reiterate in the instant case what has been said in the companion case bearing upon these points, and we adopt and incorporate herein by reference the reasoning set forth in The Money Place, LLC v. Barnes, supra. See Loghry v. Rogers Group, Inc., 348 Ark. 369, 72 S.W.3d 499 (2002). The trial court did not err in denying Tay-Tay’s motion to compel arbitration. Because we hold the arbitration provision unenforceable based upon a lack of mutuality, we need not reach the issue of unconscionability.

Affirmed.

Glaze, J., not paticipating.


author: Ray Thornton, Justice. Annabelle Clinton Imber,

text:
    Teresa BALLARD, Kenisha Bryant, Cheryl King, and Crystal Luebbers v. Phyllis GARRETT, Individually and as Advance America Cash Advance Centers of Arkansas
    01-1218
    78 S.W.3d 73
    Supreme Court of Arkansas
    Opinion delivered June 20, 2002

      The Nixon Law Firm, by: David G. Nixon and Paige E. Young, for appellants.

      Morgan & Turner, by: Todd Turner, for appellee Phyllis Garrett.

      Bowman and Brooke LLP, by: Robert M. Buell and Charles K. Seyfarth; and Wright, Lindsey & Jennings, by: Claire Shows Hancock, for appellees Advance America Cash Advance Centers of Arkansas, Inc.
   Ray Thornton, Justice.

This appeal stems from a class action usury suit that was filed by appellee, Phyllis Garrett, against appellee, Advance America Cash Advance Centers of Arkansas, Inc. [Advance America], on October 12, 1999. On April 9, 2001, a conditional settlement class was certified. On May 2, 2001, a proposed settlement agreement was prefiminarily approved, and notice was given to class members. The class included approximately 19,000 people. Notice was sent to the potential class members on May 22, 2001, and May 23, 2001. The notice informed the members that a fairness hearing would be held on July 18, 2001. The potential class members were given until June 30, 2001, to opt out of the class.

On July 6, 2001, appellants, Teresa Ballard, Kenisha Bryant, Cheryl King, and Crystal Luebbers, who were members of the class, filed a motion seeking to intervene in the action. On July 16, 2001, a hearing was held on appellants’ motion. On July 18, 2001, the trial court found that appellants’ motion to intervene was untimely, that appellants’ interests were adequately represented, and it denied the motion to intervene.

On July 18, 2001, the previously scheduled fairness hearing was held in the Clark County Circuit Court. In the record pertaining to the motion to intervene, there is no showing that appellants attended the fairness hearing or entered an objection to the proposed settlement. Following the fairness hearing, the settlement was approved and appellants appealed from the trial court’s denial of their motion to intervene, raising two points on appeal. We affirm the trial court.

This case was submitted to us on May 16, 2002. Because the abstract and addendum were deficient in that they did not contain all materials needed for us to review the appeal, we issued a per curiam order on May 21, 2002, allowing additional time under Supreme Court Rule 4-2 (b)(3) for the deficiencies to be corrected. See Ballard v. Garrett, 349 Ark. 29, 75 S.W.3d 688 (2002). Those deficiencies have been corrected, and we now address the merits of appellants’ appeal.

In their first point on appeal, appellants contend that the trial court’s denial of their motion to intervene was erroneous. The procedure for intervention is set out in Rule 24 of the Arkansas Rules of Civil Procedure. The rule provides in relevant part:

(a) Upon timely application anyone shall be permitted to intervene in an action: (a)(1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Ark. R. Civ. P. 24.

The right to intervene when an unconditional right to intervene is not granted by statute depends upon a determination of the threshold question of whether the motion to intervene was made in a timely manner. See Milberg v. State, 342 Ark. 303, 28 S.W.3d 842 (2000). We have also explained that timeliness under Rule 24(a) is a matter lying within the discretion of the trial court and will not be subject to reversal absent abuse of that discretion. Cupples Farms Partner. v. Forrest City Prod. Credit, 310 Ark. 597, 839 S.W.2d 187 (1992).

Timeliness of intervention under Rule 24 of the Arkansas Rules of Civil Procedure is to be determined from all the circumstances. Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). There are three factors that a trial court must consider in determining timeliness: (1) how far the proceedings have progressed; (2) any prejudice to other parties caused by the delay; and (3) the reason for the delay. Milberg, supra.

On this issue, the trial court in this case found:

[T]he intervenors have not acted in a timely manner as required by Rule 24(a). Furthermore, the court finds that there have been extensive pleadings and discovery conducted by the plaintiffs . . .[.] There are in excess of 19,000 class members who have been notified of this hearing for the court to consider whether or not to finally approve the settlement .... the motion to intervene is denied.

First, we must determine how far the proceedings had progressed before appellants sought to intervene in appellees’ case. On October 12, 1999, appellee Garrett filed the original complaint, which led to the class action and settlement that is the subject of this appeal. This complaint spawned two interlocutory appeals filed in our court in 2001. In April of 2001, a conditional settlement class was certified. In May 2001, notice was sent to the potential class members. The notice placed the potential class members on notice that a possible settlement had been reached and that a fairness hearing was to be held July 18, 2001. On July 6, 2001, approximately fifteen months after the original complaint had been filed, appellants filed their motion to intervene.

Appellants do not argue that they were not on notice that appellee Garrett’s suit had been filed in 1999; instead, appellants argue that they did not have an interest at stake until the conditionally certified settlement class was established in April of 2001. Therefore, appellants contend, that it was not appropriate for them to file a motion to intervene until after they had received notice of the proposed settlement. We have previously addressed and rejected this argument in Employers National Insurance Co. v. Grantors to the Diaz Refinery PRP Committee Site Trust, 313 Ark. 645, 855 S.W.2d 936 (1993).

In that case, Employers National Insurance Company and Rangers Insurance Company had issued insurance policies for Diaz Refinery for a four-year period during the 1980’s. Id. Thereafter, in 1986, the State determined that the refinery was releasing hazardous substances into the environment. In 1989, the State filed an action against Diaz. Id. In 1989, the PRP Committee Site Trust also sued Diaz for contribution pursuant to provisions of the Remedial Action Trust Fund Act. In 1990, the PRP Committee Site Trust notified the insurance companies of the pending litigation, but the companies chose not to participate in the litigation until 1991, when they filed motions to intervene. Id. Their motions were denied as untimely. On appeal, the insurance companies argued that they had no interest that would have justified intervention until Diaz stopped actively defending the litigation. Id. In other words, the insurance companies argued that they were not required to file motions to intervene until such time as they were not satisfied with the way the litigation was progressing. We affirmed the trial court’s finding that the motions for intervention were untimely and held:

The key to our decision is found in the principle that, whatever form of participation these appellants desired to have in the litigation, they were required to act in a timely fashion. The objective of our rules of procedure is the orderly and efficient resolution of disputes. Rule 1 of our Arkansas Rules of Civil Procedure provides that the rules shall be construed “to secure the just, speedy and inexpensive determination of every action.” In order to accomplish this mission, trial courts are accorded discretion, within reasonable limits, to require timely action and to deny efforts which would frustrate the achievement of those goals.

Employers, supra.

Applying this principle to the case now on review, we conclude that the trial court’s finding that appellants’ motion to intervene was filed after the litigation had progressed too far was not an abuse of discretion. Appellants were required to act in a timely fashion. Here, appellants sat on their rights and waited until they were not satisfied with the way the litigation was progressing. Appellants delayed fifing their motion to intervene until after a conditional settlement was certified and preliminarily approved, and a fairness hearing was scheduled. Their motion was filed just before a final order was entered, ending a fifteen-month litigation process. We conclude that the trial court did not abuse its discretion when it determined that the proceedings had advanced so far that appellants’ motion to intervene was not timely.

Next, we consider whether the other parties would have suffered any prejudice caused by the delay resulting from granting appellants’ motion to intervene. Appellee Advance America argues that if the trial court had granted appellants’ motion to intervene, appellants would have pursued other claims and other defendants, and that this intervention would have caused the parties to suffer financial prejudice. Advance America further argues that if appellants were permitted to intervene, and pursued new causes of action against new defendants, then the original litigation between appellees, for which a settlement agreement had been preliminarily approved, would have been thwarted and the parties would have been forced to perform new discovery and engage in a second round of settlement negotiations. Advance America also argues that adding additional claims and parties to those that led to the certification of a conditional settlement class would lead to further interlocutory appeals and would significantly delay any resolution of the case. Finally, Advance America notes that permitting appellants’ intervention would have caused them to suffer a loss of $10,000 which was the amount that they expended when they printed and mailed the notice of the settlement to the 19,000 potential class members.

We note that allowing the intervention would have also delayed the entry of the proposed settlement and would have delayed the class members’ ability to collect their compensation. See Milberg, supra (holding that the trial court properly denied a motion to intervene when the motion would have caused the other members of the class to be prejudiced by the postponement of a settlement).

Because allowing appellants’ intervention would have caused the parties to suffer prejudice, we conclude that the trial court did not abuse its discretion in denying appellants’ motion to intervene.

Finally, we must consider whether appellants had a valid reason for the delay in filing their motion to intervene. After reviewing the facts surrounding the filing of appellants’ motion, we conclude that appellants did not have a valid reason for delaying the filing of their motion to intervene until nearly fifteen months after the litigation had begun or two months after a proposed settlement had been reached. Accordingly, the trial court did not err in denying appellants’ motion.

We conclude that the trial court did not abuse its discretion when it found that appellants’ motion to intervene was untimely. Specifically, we conclude that the trial court did not abuse its discretion in finding that: (1) appellants waited until the litigation had progressed too far before they filed their motion to intervene; (2) the granting of appellants’ untimely motion would have caused the other parties to the litigation to suffer prejudice; and (3) appellants failed to provide a valid reason for their delay in filing their motion to intervene. Accordingly, we affirm the trial court.

Because appellants’ motion failed to comply with the threshold requirement of Rule 24, we decline to address the remaining provisions of the Rule.

In their last point on appeal, appellants argue that the policy behind class action suits, which is to avoid multiple suits brought by multiple parties, is not served if appellants are forced to pursue independent actions challenging the proposed settlement. Appellants argue that they should not be required to pursue a separate suit in order to attack the proposed settlement. In support of this contention, appellants offer the following quote from UHS of Arkansas v. City of Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988):

In conjunction with our consideration of appellant’s interest in intervention and the matter of timeliness, we note as well the purpose of intervention, which is to eliminate duplication of judicial effort by avoiding a multiplicity of suits and to implement the basic jurisprudential assumption that the interest of justice is served when all parties interested in a controversy are afforded an opportunity to be heard.
Not only did UHS present to the trial court sufficient interest for intervention and, under the circumstances, a timely attempt, but it also provided the opportunity for the court to avoid a multiplicity of suits. Allowing appellant’s motion for intervention would have enabled all parties with an interest in the subject matter to be heard, and the suit could have been decided on the basis of a genuine controversy.

Id. (Internal citations omitted).

Appellants’ reliance on UHS is misplaced. Specifically, in that case, we determined that the motion seeking intervention was timely filed, that the party seeking intervention had complied with the provisions of Rule 24(a), and that the parties to the underlying litigation were not adequately representing the intervenor’s interests. UHS, supra. Based on those conclusions, we held that intervention was proper. Id. We also noted that intervention would serve the additional purposes of judicial economy and avoiding multiple suits. Id. Contrary to appellants’ assertion, we merely noted that under the facts in that case, an added benefit of a timely intervention was that multiple suits would be avoided.

Because appellants failed to meet the requirements of Rule 24, we hold that the trial court did not commit error in denying appellants’ motion to intervene.

Affirmed.

Glaze, J., not participating.

Imber, J., concurs.

Annabelle Clinton Imber,

Justice, concurring. I agree with the conclusion reached in the majority opinion and write only to clarify that our holding is limited to the facts of this case. Appellee Garrett commenced this class action on October 13, 1999. At least as early as April 2000, appellants were aware of this lawsuit when their attorney referred appellant Kenisha Bryant to appellee Garrett’s attorney in order for her to participate in the lawsuit. Thus, at that time, appellants would have known the scope of appellee Garrett’s class action; that is, which defendants had been sued and what claims were being pursued. Yet, appellants did not seek to intervene until fourteen months later, asserting that other claims and'other defendants should have been pursued by appellee Garrett. It should be noted that in the interim, appellants had filed a separate cause of action against appellee Advance America in federal court. When appellants attempted to intervene here, their federal lawsuit had already been dismissed by the U.S. District Court. The motion to intervene came less than two weeks before the settlement-approval hearing, and the trial court noted that it came after “there ha[d] been extensive pleadings and discovery[.]” Appellants’ intervention would have prejudiced the more than 19,000 class members who did not object, as well as appellee Advance America after it had bargained in good faith to reach the settlement agreement.

       We have considered appeals involving these parties on several occasions. See Ballard v. Garrett, 349 Ark. 29, 75 S.W.3d. 688 (2002); Luebbers v. Advance America Cash Advance, 348 Ark. 567, 74 S.W.3d 608 (2002), Ballard v. Clark County Circuit Court, 347 Ark. 291, 61 S.W.3d 178, Ballard v. Clark County Circuit Court, 347 Ark. 286, 61 S.W.3d 175 (2001), Advance America Cash Advance Centers of Arkansas, Inc. v. Garrett, 344 Ark. 75, 40 S.W.3d 239 (2001).

       We have reviewed the recent United States Supreme Court decision Devlin v. Scardelletti, 536 U.S. 1 (2002), and conclude that its holding has no impact on the trial court’s denial of appellants’ motion to intervene. Devlin does not address circumstances in which the parties failed to act in a timely manner to protect any interest that they would have in a proposed settlement.

       We note that the fact that appellants have pursued an individual action in federal court makes this argument less than convincing.

       The U.S. District Court’s dismissal order was later affirmed by the Eighth Circuit Court of Appeals.


author:
      Ray Thornton, Justice. T OM GLAZE, Justice,
      R OBERT L. BROWN, Justice, T OM GLAZE, Justice,

text:
    James Patrick KEENOM v. STATE of Arkansas
    CR 01-673
    80 S.W.3d 743
    Supreme Court of Arkansas
    Opinion delivered June 20, 2002
    [Petition for rehearing denied September 5, 2002.]

      Taylor Law Firm, • by: W.H. Taylor and John Mikesch, for appellant.

      Mark Pryor, Att’y Gen., by: Valerie L. Kelly, Ass’t Att’y Gen., for appellee.

       Glaze, J., dissenting. See 349 Ark. 399.

   Ray Thornton, Justice.

At approximately 7:30 p.m. on March 7, 2001, Detective David Jones, of the 19th Judicial District Drug Task Force was off-duty and conducting personal business at the Wal-Mart Supercenter in Bentonville, when he saw a man he considered to appear suspicious, because of his long hair and beard, and because he was pushing a cart containing chemicals that might be used in the manufacture of methamphetamine, including two cans of acetone, several bottles of rubbing alcohol, and several packages of coffee filters.

Detective Jones followed the suspicious customer, appellant James Patrick Keenom, to the parking lot and took his license plate number, which he later checked through the ACIC to determine the man’s identity and address. He watched appellant return to the store and talk to another man the detective considered to look suspicious because he had long hair and was holding “Heet” brand fuel cleanser and camping fuel. Detective Jones then watched appellant leave the store and drive away.

Detective Jones called Detective Tony Noblin, also of the 19th Judicial District Drug Task Force, and told him what he had seen. The two decided to go to appellant’s residence and perform a “knock and talk” to see if they could acquire consent to search and to see if they could catch him in the act of manufacturing. Detective Noblin testified that they knew they could not obtain a warrant for a nighttime search based on the information they had, and the only way to get on appellant’s property was to do a “knock and talk.” The officers drove to the Decatur Police Department to get directions to the address. The officers and detectives arrived at the main residence on the property located on a rural, dirt road about six miles outside Decatur and saw appellant enter a house. They did not smell methamphetamine cooking, so they left and went back to the Decatur Police Department to get the officers to come with them. They also decided that because they were shabbily dressed in plain clothes, they should be accompanied by members of the Decatur Police. At the suppression hearing, the detectives testified that they wanted officers with them who could appear in uniforms so as not to unduly frighten the residents when the detectives came to the door. They also admitted that they wanted the officers with them because it was nighttime, there was a greater likelihood of someone getting hurt, and there were issues of “officer safety.”

At 11:30 p.m., the officers and detectives caravanned to the house they believed to be appellant’s residence. They knocked on the door of the house and were met by appellant’s mother, Frances Keenom. They asked for her son, and she explained that he lived in a trailer house further into the property, approximately 700 feet east of her home. She did not give consent to the police to proceed further into her property, and made no further comment. The police proceeded further into the property to reach appellant’s trailer house, passing several chicken houses and other structures, and passing “no trespassing” signs that they stated they did not see.

The facts concerning exacdy what transpired after the police arrived at appellant’s trailer are disputed. When the officers arrived at appellant’s trailer, all agree that he met them outside before they could knock on the door. Appellant testified that their headlights awakened him, and that he only had time to put on a pair of jeans before stepping outside to meet them. The officers stood by their cars with their lights shining on appellant’s front door, while the detectives approached appellant, coming within ten feet of him. Appellant was barefoot and wearing only his britches when asked by Detective Jones for permission to search the trailer. All agree that appellant refused to consent. Fie suggested to the police that they leave and come back in ten minutes, but they responded that they could not do that. The officers remained and continued to question appellant. Appellant testified that during this questioning, he requested to go inside because it was storming and cold and that the police refused to let him return to his trailer and threatened to take all of his belongings if he tried to go inside. Appellant also testified that they did allow him to go to his car to get a jacket, and this testimony was not challenged. After an unspecified amount of questioning, appellant admitted that he had a quarter of a gram of methamphetamine inside the trader, and at that point Detective Jones testified that Detective Noblin apprised him of his Miranda rights because he had begun to implicate himself in criminal activity. Appellant denied that he was read his Miranda rights. Detective Jones continued to question him and asked appellant if he had some kind of lab operation in his trailer. Appellant responded that he had accepted payment from his friends on previous occasions to allow them to manufacture methamphetamine in his trailer. At that point, after anywhere from twenty to forty-five minutes of questioning, the detectives arrested him for conspiracy to manufacture methamphetamine. The detectives denied that they ever took him into custody before that point. The detectives did not deny that they refused to allow him to go back inside his trailer, but they denied that they threatened appellant.

After arresting appellant, the detectives entered and made a sweep of the residence on the grounds that they had seen the curtains moving while they were talking with appellant, and because they thought a lab might be in operation at that moment. Apparently, they did not consider this “sweep” to be a search because Detective Jones testified that they were only in the trailer a minute or two to make sure there would be no explosion from a meth lab left cooking and that no one was inside the trailer. Detective Jones testified that appellant consented to a search after he was arrested, but that the detectives believed it would be appropriate to go get a search warrant at that time. Detective Noblin testified at the suppression hearing that after Detective Jones left the scene with appellant, he did not try to obtain a nighttime search warrant, and that when they were out at appellant’s trailer, they were doing something “that the magistrate would not have let us do if we had gone to the magistrate.”

Detective Noblin stayed at the residence with one of the uniformed officers to secure the area while Jones obtained a search warrant from Judge Schrantz in Rogers. The magistrate required that they not serve the search warrant until daybreak, and so it was served at the residence at 6:05 a.m. the next morning. As a result of the search, the officers reported finding weapons, drug paraphernalia, and lab materials, and appellant was charged with manufacturing methamphetamine and simultaneous possession of drugs and firearms.

Appellant moved for suppression of the evidence obtained from the search on the grounds that they were obtained in violation of his Constitutional rights. That motion was denied after a hearing and appellant changed his plea from “not guilty” to a “conditional guilty plea.” He reserved the right to appeal from an adverse judgment of the motion to suppress evidence, ensuring that if he prevailed upon appeal he would be allowed to withdraw his guilty plea. The trial court found appellant guilty and he was sentenced to twenty years’ imprisonment in the Arkansas Department of Correction, five years of which was suspended upon certain conditions. We conclude that appellant was denied his rights under the Fourth Amendment to the United States Constitution to be free from unreasonable search and seizure, and we reverse.

We first address appellant’s argument that his Fourth Amendment rights were violated by the search and seizure performed by the State. We review the lower court’s ruling by making an independent determination based on the totality of the circumstances and viewing the evidence in the light most favorable to the State. Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002). This court will reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997).

In Arkansas, “knock and talk” is a label for a procedure that is defined as follows:

Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof whether the questioner be a pollster, a salesman, or an officer of the law.

Griffin, supra. (Emphasis added.) (citing Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964)).

Our recent decision in Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002), sets out the standard for determining when a “knock and talk” investigation becomes a seizure for purposes of Fourth Amendment analysis. We said:

[a] seizure does not occur simply because a police officer approaches an individual and asks a few questions. Id. A seizure occurs when a reasonable person would not feel “free to leave.” Michigan v. Chesternut, 486 U.S. 567 (1988). The “free to leave” analysis, however, is not an accurate measure of the coercive effect of an encounter in situations where a person would have no desire to leave, such as where the person is seated on a bus. Florida v. Bostick, 501 U.S. 429. “In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Id. The crucial test is whether, taking into account all circumstances, the police conduct would have communicated to a reasonable person “that he was not at liberty to ignore the police presence and go about his business.” Id. (citing Michigan v. Chesternut, supra.) It is important to note that the “reasonable person” test presupposes an innocent person. Id.

Scott, supra. Though the “knock and talk” procedure is not automatically violative of the Fourth Amendment, it can become so. In Scott we held that the test to determine if a “knock and talk” encounter reached the level of a seizure for the purposes of the Fourth Amendment was whether a reasonable person would feel free to terminate the encounter. Id. The crucial test is whether, taking into account all circumstances, the police conduct would have communicated to a reasonable person “that he was not at liberty to ignore the police presence and go about his business. ’’ Id. (citing Michigan v. Chesternut, supra). (Emphasis added). It is important to note that the “reasonable person” test presupposes an innocent person. Id. Scott, supra. In our review of federal appellate court decisions holding that the “knock and talk” procedure is not per se violative of the Fourth Amendment, we also noted a word of warning: “police must realize the inherent limitations in the more informal way of proceeding.” Id. (citing United States v. Jerez, 108 F.3d 684 (7th Cir. 1997)). As stated above, the test to determine if a “knock and talk” encounter has become a seizure is whether a reasonable person would feel free to terminate the encounter. Scott, supra.

In the instant case, it is undisputed that appellant asked the officers to leave and come back later. Officer Noblin stated that “Keenom told us to leave and come back in ten minutes.” When asked on cross-examination' whether the officers complied with that request, Officer Noblin conceded that they did not. Similarly, appellant testified that during his encounter with the officers he asked to return to the house to retrieve some clothing and was denied the opportunity to reenter the house. The State’s witnesses did not controvert this testimony, but Officer Noblin suggested that the officers would have had no choice but to leave the premises if appellant had gone inside his house. The undisputed fact remains that the officers did not leave the premises. They continued to question appellant for a period of twenty to forty-five minutes, depending upon which of the State’s witnesses’ testimony is credited.

Even viewing the evidence in the light most favorable to the State, we conclude that a reasonable person in appellant’s position would not have felt free to terminate the encounter with the police and return to the safety and privacy of his house. Officer Noblin’s testimony does not controvert appellant’s statement that he was not allowed to go inside to retrieve some clothing. Similarly, his request that the officers leave and come back in ten minutes was ignored. Instead, these officers continued to question him while he stood in the weather, partially clothed, under the glare of the headlights of the officers’ cars. This persistence by the officers would strongly convey to a reasonable person the officers’ intention not to desist. Officer Noblin’s subjective knowledge that the officers would had no choice but to leave if appellant had gone inside his home is simply irrelevant to the inquiry. This is merely an acknowledgment that the officers had no probable cause to arrest appellant. Furthermore, even giving deference to the trial court’s position as the finder of fact concerning what amounted to reasonable suspicion, there is insufficient evidence to hold that the officer had reasonable suspicion to do more than stop appellant simultaneously with his observation of the “suspicious” seeming appellant. United States v. Hensley, 469 U.S. 221 (1985). Terry v. Ohio, 392 U.S. 1 (1968). There certainly were no grounds for the officer to witness suspicious behavior in Bentonville, ascertain the appellant’s identity, obtain the assistance of other officers, caravan to the appellant’s rural residence six miles outside Decatur, attempt to obtain the appellant’s consent to conduct a search of his residence, and, finally, after being refused consent, engage in a twenty- to forty-five-minute detention of appellant on the theory of an investigatory stop.

The persistence of the officers may be the functional equivalent of physical restraint, which, in the absence of justification, is proscribed by the Fourth Amendment. See, U.S. v. Jerez, supra; U.S. v. Wilson, 953 F.2d 116 (4th Cir. 1991). Under the totality of the circumstances in this case, the officers exceeded the inherent limitations of the “knock and talk” procedure. Their persistence in the face of appellant’s efforts to terminate the encounter and his request that the officers leave, resulted in his being seized in violation of his Fourth Amendment rights. Such prolonged questioning, leading as it did to appellant’s unsuccessful attempts to return to the safety and solitude of his house, would surely lead a reasonable person to believe that he could not ignore the officers. The safety and sanctity of the home is shielded by the Fourth Amendment. Though the “knock and talk” procedure is not per se violative of the Fourth Amendment, the police must conduct themselves in a manner that does not communicate to a a reasonable person that he or she is not free to ignore the police presence. Scott, supra.

Following our determination that appellant was unlawfully seized under the Fourth Amendment, we must consider whether the contraband seized from the execution of the search warrant should be suppressed. We conclude that Wong Sun v. United States, 371 U.S. 471 (1963), controls the analysis of this issue. In that case, the Supreme Court stated in its holding that:

We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality,- the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Maguire, Evidence of guilt, 221 (1959). We think it clear that the narcotics were “come at by the exploitation of that illegality” and hence that they may not be used against Toy.

Id. This holding represents the general policy that “knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.” Silverthorn Lumber Co. v. United States, 251 U.S. 385 (1920). The policies of this rule do not make any logical distinction between physical and verbal evidence. Wong Sun, supra. The Supreme Court in Wong Sun stated that “verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officer’s action in the present case is no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” Id.

The search warrant executed in this case was based upon the statements made by appellant to the officers following his illegal seizure. There was no break in time between the events leading up to appellant’s arrest and the inculpatory statements he made that led to the issuance of the search warrant. In other words, the primary taint of the unlawful seizure had not been sufficiently attenuated or purged. Under these circumstances, the fruits of the warrant were poisoned by the officers’ unlawful conduct in seizing appellant. Accordingly, we conclude that appellant was deprived of his Fourth Amendment rights and the evidence should have been suppressed.

Appellant also contends that the detectives conducted a custodial interrogation, violating his Fifth Amendment rights. The State argues that appellee failed to preserve this issue for appeal, or alternatively, that appellant was not in custody before he was read his Fifth Amendment Miranda rights. Because we hold that appellant’s Fourth Amendment rights were violated and the evidence should have been suppressed as “fruit of the poisonous tree,” we need not address the issue of appellant’s Fifth Amendment rights.

Because the detectives performed an unreasonable search and seizure, we conclude that appellant was deprived of his Fourth Amendment rights and that the evidence should have been suppressed.

Accordingly, we reverse.

Glaze and Brown, JJ., dissent.

T OM GLAZE, Justice,

dissenting. The appellant, James Keenom, argues in this appeal that his Fifth Amendment rights were violated. In particular, Keenom never argued that issue, nor did he obtain the court’s ruling on the constitutional issue.

Keenom spends considerable time discussing an “0-1“ form, which he abstracts as reflecting, “the defendant intends to suppress evidence on the grounds of illegal search and arrest, and he intends to suppress admissions on the grounds of: coercion; violation of Miranda; and unlawful arrest.” Apparently, this is a preliminary form counsel and the trial judge signed after Keenom was arraigned and prior to other pretrial matters and hearings.

Arkansas law is well settled that an appellant must raise and make an argument at trial in order to preserve it on appeal, see Halford v. State, 342 Ark. 81, 88, 27 S.W.3d 346, 351 (2000), and even constitutional issues must first be presented below to be preserved for appellate review. See Nance v. State, 339 Ark. 192, 200, 4 S.W.3d 501, 506 (1999).

Here, Keenom and the State filed briefs, wherein they addressed the legality of the officers’ “knock and talk” procedure used to search Keenom’s trailer. It was this “knock and talk” issue the trial judge considered in ruling that the State’s search was valid. The judge made no mention of coercion or the violation of Miranda on the officers’ parts. Nor was the judge asked to rule on any custodial issue that may have ensued at the time Keenom admitted that he possessed a quarter of a gram of methamphetamine.

In this case, as in many, a defendant is confronted with choosing his defenses as the case evolves. Understandably, in these circumstances, Keenom chose to question the officers’ knock and talk decision in going out to Keenom’s trailer at 11:30 at night, rather than trying to show coercion — an element which, on the evidence shown, would have been difficult, to say the least.

In reviewing a ruling denying a defendant’s motion to suppress, this court makes an independent determination based on the totality of the circumstances and views the evidence in the light most favorable to the State, and will reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002). Our court defers to the trial court in assessing witness credibility. Id.

In looking at the evidence in favor of the State, as this court is required to do, the officers drove to Keenom’s trailer by way of a dirt road in order to talk to Keenom concerning Detective David Jones’s observations and investigation of Keenom’s earlier purchase and possession of items known to be used in the manufacture of methamphetamine. See Embry v. State, 70 Ark. App. 122, 15 S.W.3d 367 (2000) (court held there is no expectation of privacy in driveways, which are commonly used by visitors to approach dwellings). Keenom saw the officers’ cars approaching his trailer, and he walked out to meet them. It was about 11:30 p.m. Keenom had his lights on in his home.

Officer Jones, accompanied by three other officers, told Keenom that he had seen Keenom that day purchase items at WalMart that could be used to make methamphetamine and asked for consent to search his trailer. Keenom refused. They talked a few seconds longer, and Keenom said he would feel better about the officers searching if he first could have ten minutes in the trader. They continued to talk and Detective Jones asked whether methamphetamine was inside the trailer. Keenom said that there was approximately a quarter of a gram. Keenom then added he might have parts of a lab inside his residence because his friends sometimes paid him to use his trailer to manufacture methamphetamine. After Keenom volunteered this information, the officers Mirandized Keenom, arrested him, and Keenom consented to the search of his trailer. Keenom testified that the interview between him and the officers took approximately twenty minutes. Officer Noblin testified that, if Keenom had gone back inside his trailer, “[w]e would have loaded up . . . our cars and left.”

Under the circumstances of this case, the trial court could have reasonably found that the only evidence of coercive conduct by the officers came from Keenom and that a reasonable person could have felt free to terminate the encounter by going inside his trailer. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). As previously indicated, Keenom was awake and his lights were on at 11:30 p.m., and he was aware that there were cars on their way to his home when he walked out of his house to meet them. The officers departed their cars and immediately told Keenom why they were there, but after about twenty minutes of questioning, he admitted he possessed methamphetamine, he had items that he and friends could use to make methamphetamine, and people paid him for use of his trailer to manufacture methamphetamine.

Having concluded that the officers’ actions were not coercive or unreasonable, the issue then centers upon a search incident to arrest. Keenom was lawfully arrested upon his admitting possessing methamphetamine and having assisted others in the manufacturing of methamphetamine. Because the officers’ actions were lawful and resulted in their acquiring contraband in Keenom’s possession, the judge’s rilling to deny Keenom’s suppression motion was correct. See Wong Sun v. United States, 371 U.S. 471 (1963). I would affirm.

R OBERT L. BROWN, Justice,

dissenting. This case involves a failed knock-and-talk. Police officers went to Keenom’s trailer at 11:30 p.m. after observing him four hours earlier twice buy known ingredients for “cooking” methamphetamine at Wal-Mart. Each time, Keenom only made meth-related purchases. The police officers talked to Keenom outside his trader for twenty to forty-five minutes. He refused to consent to a search of his trailer, and the police officers honored that. During the questioning, Keenom asked if he could reenter his trailer for ten minutes before consenting to a search. The police officers answered that he could not. The police officers did allow him to retrieve a jacket from his car. One police officer testified that had Keenom simply gone back into his trailer, the police officers would have left. During the questioning, Keenom admitted that he had a quarter of a gram of methamphetamine inside the trader. The police officers left and obtained a search warrant for the trailer, which they subsequently executed.

It is first important to acknowledge what is not at issue in this appeal. First, a violation of Miranda v. Arizona, 384 U.S. 436 (1966) is not preserved for our review, because no ruling on this issue was obtained from the trial court. Secondly, a violation of Article 2, section 15 of the Arkansas Constitution dealing with unreasonable searches and seizures is not at issue here, because the Arkansas Constitution was not sufficiently raised below and no ruling was obtained from the trial court. Indeed, there is only a passing reference to the Arkansas Constitution in Keenom’s brief before this court, and no effort was made to argue that Arkansas jurisprudence provides more rights to individuals against unreasonable searches and seizures than does the Fourth Amendment to the U.S. Constitution. See, e.g., State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002). This court, of course, cannot afford greater rights to individuals under the U.S. Constitution than those permitted under federal law. Arkansas v. Sullivan, 532 U.S. 769 (2001).

As a result, our analysis in this case is limited to the Fourth Amendment and whether a violation occurred under federal law. I conclude that it did not, because I conclude the police conduct in this case was reasonable based on what the police officers observed at Wal-Mart and based on the fact that they never conducted a search of Keenom’s trailer based on consent. Instead, they obtained a search warrant.

A major deficiency in the majority’s analysis is that it never acknowledges the trial court’s findings relating to the reasonableness of the police conduct in this case and never engages in a clearly-erroneous assessment of those findings. This, of course, is required by our caselaw. See, e.g., Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997). What follows is the trial court’s ruling on the subject:

I can tell you if this had been a case where these officers were based — basing their decision to do this on — on a confidential informer passing information the results would be different. But what distinguishes this case in the Court’s mind and — is the fact that the — this decision was based on the observations of the officer, the personal observations of the officer.
And essentially what we had here was the officer making an observation, first of all, that — that—that there were — that Mr. Keenom had in his possession at Wal-Mart some precursors to— to — to methamphetamine and nothing else. Wasn’t any groceries in there, wasn’t any household goods in there, it was just those items.
Now, those items obviously have legitimate purposes as all people know. And the fact that after these were taken out and purchased and taken out to the truck, then — then the individual returned and more items that are precursors were purchased.
So, based on those observations of the officers, then — that officer, the Court finds that there was a reasonable basis for their — his belief and the behef of the officers that methamphetamine was being manufactured that evening and that — and that they had a basis — a reasonable basis for going out and doing the so-called knock and talk. So, the motion to suppress is denied.

This court has shown a sensitivity to abuses caused by nighttime searches, which I share. See Ark. R. Crim. P. 13.2; Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991). I further am of a mind to require that consent-to-search forms be executed by the resident before a knock-and-talk can be effected, whether during the daytime or at night. See Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002) (Brown, J., concurring). But this criminal rule and our caselaw have their foundation in the Arkansas Constitution, not the Fourth Amendment. Again, the instant case is solely a Fourth Amendment case, and federal jurisprudence does not require the exigent circumstances for a nighttime search warrant set out in our Rule 13.2, much less that those exigent circumstances be required for a nighttime knock-and-talk.

Turning to the conduct of the police officers in the case at hand, I cannot disagree with the majority that the police strategy of coming out en masse to Keenom’s trailer late at night was highly questionable. But the issue for us to resolve is whether that conduct was unreasonable under the Fourth Amendment in light of what the police officers observed at Wal-Mart and in light of the fact they did not search based on consent but ultimately obtained a search warrant. I believe their conduct was reasonable under federal law.

Even if the majority is correct that Keenom was “seized” during the twenty-minute interrogation because a reasonable person would have not believed he was free to leave, see Michigan v. Chesternut, 486 U.S. 567 (1988), that does not end our analysis. The question is whether the seizure was reasonable. The majority concludes that the police officers would not let Keenom return to his trailer. Yet, that was a matter of dispute. Keenom wanted ten minutes alone inside his trailer prior to giving his consent to search. The officers refused. This was not unreasonable in my judgment. Police officers have a legitimate interest in officer safety, and there was no assurance that Keenom did not have a weapon in his trailer. New York v. Quarles, 467 U.S. 649 (1984). Moreover, there was always the risk that Keenom would destroy evidence of methamphetamine production which would render a consent to search ten minutes later meaningless. The pivotal point, however, is that Keenom never simply turned around and went back into his trailer. He was free to do so, and had he done so, Officer Noblin testified that the police officers would have left.

The majority weighs the evidence, assesses credibility, and concludes otherwise. But that is precisely what this court should not do. Credibility is for the trial court to weigh. See, e.g., Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). We defer to the trial court in resolving conflicts in testimony and only reverse when the trial court’s findings are clearly erroneous. See Burris v. State, supra.

The question of whether under federal cases, the police conduct in this case would pass muster is not really debatable. See, e.g., Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001); United States v. Jones, 239 F.3d 716 (5th Cir. 2001); United States v. Cormier, 220 F.3d 1103 (9th Cir. 2000); United States v. Johnson, 170 F.3d 708 (7th Cir. 1999); United States v. Heath, 58 F.3d 1271 (8th Cir. 1995). In addition, we recently discussed a knock-and-talk procedure where illegality under the Fourth Amendment was the issue and where trial counsel failed to preserve the state constitutional issue. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). In Scott, we affirmed the knock-and-talk procedure employed and reiterated the general balancing test that is the starting point in evaluating police-citizen encounters under the Fourth Amendment:

The approach of a citizen pursuant to a policeman’s investigative law enforcement function must be reasonable under the existent circumstances and requires a weighing of the government’s interest for the intrusion against the individual’s right to privacy and personal freedom. To be considered are the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter.

Scott, 347 Ark. at 776 (citing State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997)).

In short, the Fourth Amendment does not preclude what the police officers did in this case. No consent to search was given. The search only occurred after a search warrant was obtained. The search warrant was based on Keenom’s admission that he had a quarter of a gram of methamphetamine in his trailer, which admission resulted from his questioning by the police. Yet, the questioning was the result of the police officers’ personal observations at Wal-Mart. Viewing the proof in the light most favorable to the State, as we are required to do, that questioning lasted twenty minutes, and Keenom was not preventing from going back into the trailer and shutting his door. Had he done so, the police officers said they would have left. What the police officers did object to was Keenom’s being allowed to be in his trailer alone for ten minutes before consenting to a search.

I conclude, as did the trial court, that the police officers’ interrogation of Keenom was reasonable under the Fourth Amendment after the police officer’s observation of the methrelated purchases. I would affirm.

Dissenting Opinion on Denial of Rehearing DELIVERED SEPTEMBER 5, 2002

T OM GLAZE, Justice,

dissenting. The majority opinion clearly erred in its application of the standard of review. As the State points out in its petition for rehearing, the majority opinion resolved several factual disputes by considering the evidence in the light most favorable to the appellant, Keenom, despite our consistent holdings that the evidence on appeal is to be viewed in the light most favorable to the appellee. See, e.g., Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001); Benson v. State, 342 Ark. 684, 30 S.W.3d 731 (2000). For example, the majority opinion relies heavily on conflicting testimony that the officers’ interview of Keenom lasted as long as forty-five minutes, but Keenom’s own testimony reflected that the time span was about twenty minutes. Further, this court’s opinion reflects the belief that Keenom was denied the right to go inside his home to retrieve some clothing, and expresses a belief in Keenom’s statement that the officers refused to let him return to his trailer, thus concluding that Keenom’s testimony went unchallenged. However, there was absolutely nothing coercive or confrontational about this encounter between Keenom and the officers that would have prevented Keenom from terminating their exchange and going inside his residence. In fact, in oral argument, Keenom agreed that the officers denied Keenom’s testimony that he asked to go back inside his residence. The trial court is the ultimate arbiter of questions of credibility, see Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998), and it was not required to believe Keenom’s testimony on those evidentiary issues. Because the majority clearly and erroneously applied the standard of review in Keenom’s favor, I would grant rehearing in this case.

       Compare the analogous inquiry in Fifth Amendment violation analysis that the United States Supreme Court set out in Stansbury v. California, 511 U.S. 318 (1994). The Court stated:
      an officer’s view concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer’s vietvs or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave.

        Id. (Emphasis added).

       The majority opinion apparently agrees that Keenom failed to preserve this Fifth Amendment issue, since that opinion does not discuss it in reaching its decision.

       To the contrary, the trial judge, in ruling on the validity of the officers’ knock and talk procedure, relied on the officers’ observations as being reasonable when “going out and doing the so-called knock and talk.” Attached is a copy of the trial court’s findings and ruling on Keenom’s motion to suppress.

       The majority writes the police passed “no trespassing” signs that they stated they “did not see.” The only evidence of these signs is the testimony of Keenom and his mother. The photographs of his property that Keenom entered into evidence were not taken until after the night of the incident. The trial judge resolves matters of credibility. Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002).

       Officer Jones also testified that he observed Keenom at Wal-Mart with another man who was buying Heet brand fuel cleanser and two containers of camping fuel. The majority notes the items that the second man purchased, but does not mention that Jones identified the items as precursors to methamphetamine production.

       The majority opinion relies on some testimony that this interview period lasted as long as forty-five minutes, but Keenom said the time span was about twenty minutes. The trial court could have believed his version, which makes the period shorter and reasonable. Certainly, this short twenty-minute period can hardly be an unlawful functional equivalent of physical restraint, as the majority opinion suggests. In addition, the opinion reflects the belief in Keenom’s testimony that Keenom was denied the right to go inside his home to retrieve some clothing, and expresses belief in Keenom’s story that the officers refused to let him return to his trailer or allow him to get his jacket, concluding Keenom’s testimony went unchallenged. The trial court simply was not required to believe Keenom’s testimony on those evidentiary issues. Scott, 347 Ark. 767, 67 S.W.3d 567.