author: Tom Glaze, Justice.

text:
    Katherine BARNHART, for Herself and All Others Similarly Situated v. CITY of FAYETTEVILLE, Arkansas; City of West Fork, Arkansas; Washington County, Arkansas; Northwest Arkansas Resource Recovery Authority; Union National Bank of Little Rock, Arkansas; and Financial Guaranty Insurance Company
    97-1524
    977 S.W.2d 225
    Supreme Court of Arkansas
    Opinion delivered November 5, 1998

      Karen Pope Greenaway, for appellant.

      Cravath, Swaine & Moore, by: Robert H. Baron of counsel.

      George E. Butler, for appellee Washington County, Arkansas.

      Friday, Eldredge & Clark, by: Larry W. Burks, for appellees Financial Guaranty Insurance Company and Union National Bank of Little Rock.

      Jerome J. Paddock, for appellee City of West Fork.
   Tom Glaze, Justice.

This class-action suit was commenced by Katherine Barnhart and others on August 29, 1989. Barnhart alleged that a Fayetteville ordinance levying a sanitation charge on city residents to pay a bonded indebtedness owed by the Northwest Resource Recovery Authority (Authority) was an illegal tax and exaction. While the trial court ruled the charge was valid as a fee, we disagreed and held the surcharge was an illegal tax. See Barnhart v. City of Fayetteville, Ark., 321 Ark. 197, 900 S.W.2d 539 (1995) (Barnhart I). We further held that, in a waste-disposal agreement, Fayetteville had agreed to pay, with revenue generated by the Authority, the outstanding bonded indebtedness of the Authority without regard to whether the Authority unilaterally terminated sanitation services before the bonds were paid, and that the city’s authority to contract for the purchase of a service does not carry with it the power to incur long-term obligations for which no services may be supplied. Id. In sum, we said that the agreement was not a contract for the purchase of sanitation services but instead was a contract to pay long-term obligations of a separate governmental entity even when the city would not receive sanitation services. Id. We also concluded that Fayetteville was without authority to levy a fee that was to pay the long-term debt of the Authority and the ordinance imposing such a fee or charge was unlawful. Id.; see also Ark. Const, art. 16, § 1. Thus, we held that the agreement was ultra vires and void, Barnhart I, 321 Ark. at 206, and reversed the trial court’s decision which had upheld the sanitation charge as a valid fee. We remanded the case for further proceedings.

Upon remand, the parties entered into a settlement in December 1995, which, among other things, awarded Barnhart attorney’s fees in the approximate sum of $2.7 million. These fees were awarded under Ark. Code Ann. § 26-35-902(a) (Repl. 1997), which authorizes attorney’s fees to winning litigants in illegal-exaction cases. Not entirely satisfied with this award, Barn-hart moved that she be awarded additional attorney’s fees in the amount of $3 million under Ark. Code Ann. § 16-22-308 (Repl. 1994 ). Section 16-22-308, in relevant part, says that the prevailing party may be allowed a reasonable attorney’s fee in an action on a contract relating to the purchase of services or breach of contract. 2 Barnhart claimed that her prior illegal-exaction lawsuit was against Fayetteville only, but that her original action also included a breach of contract action against the other litigants which should entitle her to additional fees under § 16-22-308.

The trial court rejected Barnhart’s request for the additional attorney’s fees, finding that our decision in Barnhart I established that the contract between the governmental entities was void and amounted to a rescission. As a result, the trial court held that, because there was no contract to be breached, the attorney’s fees statute § 16-22-308 did not apply. The trial court further stated that Barnhart’s mere contention that her action “concerned a contract” did not make it an action on a contract or a breach of contract action entitling her to additional fees. We believe the trial court was correct.

Barnhart’s main point for reversal is that the trial court erred in dismissing her amended petition because it failed to state facts upon which relief for attorney’s fees could be awarded under § 16-22-308. She claims our decision in Barnhart I supports her argument because we held the waste-disposal agreement entered into between Fayetteville and the Authority was void and, thus, was breached by the governmental entities. She says that in successfully defending against the agreement’s enforcement, she was the prevailing party and was entitled to attorney’s fees under § 16-22-308. Barnhart additionally argues that, although she previously sought refund of an illegal exaction, her underlying and primary basis for the action was in contract because she also sought to prevent enforcement of the governmental entities’ waste-disposal agreement. In sum, she submits that she and the other ratepayers were successful in two ways — one, by proving Fayetteville’s ordinance was an unlawful tax exaction, and, two, in demonstrating the waste-disposal agreement was invalid. She argues the agreement’s validity and enforceability were the central issues in this lawsuit, and, as the prevailing party on these issues, she is permitted attorney’s fees under § 16-22-308. We disagree with Barn-hart’s arguments for at least two reasons.

First, while Barnhart contends that her case against Fayetteville and the other governmental entities was based primarily on contract, her complaint prayed that the exaction of revenue arising from Fayetteville’s ordinance establishing sanitation surcharges on city residents was an illegal exaction prohibited under Ark. Const, art. 16, § 13. Barnhart’s complaint made no specific claim for damages resulting from a contract breach. It is likely that Barnhart made no such contract claim because she was not a party to the contract.

Second, even if Barnhart had been a party to the agreement or contract in controversy, she failed to raise any breach of contract or damages issues in her earlier case or appeal. As we held recently in Vandiver v. Banks, 331 Ark. 386, 962 S.W.2d 349 (1998), on second appeal, as in this case, the decision of the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented. Stated in other terms, the doctrine of the law of the case prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals. Id.

Here, we essentially are faced with the same case we had in Barnhart I, but Barnhart now attempts to re-characterize her prior suit. Regardless of how she now tries to label her lawsuit, Barnhart previously sought to show that Fayetteville imposed an illegal tax on its residents when enacting an unlawful ordinance intended to fund an unlawful agreement, and she requested that ordinance be adjudged an illegal exaction. This allowed her attorney’s fees under § 26-35-902, not § 16-22-308. It is too late now for Barnhart to re-characterize her suit (assuming she could) as one for breach of contract in order to trigger an attorney’s fee award under § 16-22-308.

Barnhart submits a second argument for reversal, but we dispose of it quickly. Barnhart claims that, before the trial court entered its order denying her petition for attorney’s fees, she filed a timely amended petition, but the trial court erred by refusing to hold a hearing or to make a ruling on her amended petition. Instead, the trial court filed the order it had previously signed and had asked (to no avail) Barnhart’s counsel to enter. However, even if the trial court had erred by declining to hear or rule on Barnhart’s amended petition, a question we do not reach, that error would not be grounds for reversal because it was harmless. See McCoy Farms, Inc. v. McKee, 263 Ark. 20, 563 S.W.2d 409 (1978) (a trial court’s exercise in discretion in a matter of practice and procedure should not be reversed where there has been no prejudice to the complaining party in the ultimate result).

In short, the trial court rejected Barnhart’s initial petition and characterization of her action as being primarily based on contract. Nonetheless, Barnhart adhered to her same theory of the case when she amended her petition and reframed her fee petition in different words and added a court of appeals’ citation, Meyer v. Riverdale Harbor, 58 Ark. App. 91, 947 S.W.2d 20 (1997) (where both contract and tort claims are advanced, an award of attorney’s fees to the prevailing party is proper only when the action is based primarily in contract). As we held above, the trial court was correct in rejecting Barnhart’s characterization of her suit as being primarily based in contract, and Barnhart’s petition, as amended, fails to aid her argument. Thus, we affirm on this point because Barnhart’s amended petition offered no factual or legal assertions that in any way remedied her original fee petition.

Affirmed.

Imber, J., not participating.

       Section 26-35-902 provides as follows:
      (a) It is the public policy of this state that circuit and chancery courts may, in meritorious litigation brought under Arkansas Constitution, Article 16, § 13, in which the court orders any county, city, or town to refund or return to taxpayers moneys illegally exacted by the county, city, or town, apportion a reasonable part of the recovery of the class members to attorneys of record and order the return or refund of the balance to the members of the class represented.

        (b) If, after expiration of a reasonable period of time for the filing of claims for the illegally exacted moneys as ordered by the court, residual funds exist, said residual funds shall be deemed abandoned and escheat to county, city, or town which exacted same.

       Section 16-22-308 in its entirety states the following:
      In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.

       We note that Fayetteville and the other appellees offer numerous other procedural arguments as to why the trial court was correct in denying Barnhart’s amended petition, but it is unnecessary to discuss them, since we agree with appellees that they should win on the merits.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    ERC CONTRACTOR YARD & SALES and Liberty Mutual Insurance v. Lonnie ROBERTSON
    98-288
    977 S.W.2d 212
    Supreme Court of Arkansas
    Opinion delivered November 5, 1998

      Ledbetter, Cogbill, Arnold & Harrison, by: James A. Arnold, II and Rebecca D. Hattabaugh, for appellants.

      Rush, Rush & Cook, by: David L. Rush and Craig L. Cook, for appellee.
   Annabelle Clinton Imber, Justice.

This case is before us on review from the Arkansas Court of Appeals. The Court of Appeals agreed with appellants ERC Contractor Yard & Sales and Liberty Mutual Insurance (hereinafter referred to as ERC) that there was a presence of alcohol, however small, in appellee Lonnie Robertson’s blood. However, the Court of Appeals concluded that substantial evidence existed to support the finding by the Workers’ Compensation Commission that Mr. Robertson’s injury was not substantially occasioned by the use of alcohol. ERC Contr. Yard & Sales v. Robertson, 60 Ark. App. 310, 961 S.W.2d 36 (1998). The Court of Appeals further affirmed the Commission’s determination that Mr. Robertson’s fall was caused by an alcohol-withdrawal condition which was personal in nature, or idiopathic, and that the fall was compensable because his employment placed him on a scaffolding twelve to fifteen feet off the ground and thereby increased the effects of his fall. Id. Finally, the Court of Appeals affirmed the Commission’s determination of Mr. Robertson’s rate of compensation. Id. We affirm the decision of the Commission.

On September 18, 1995, Mr. Robertson fell from scaffolding while he was working on a budding demolition for ERC. While being treated for his injuries at the hospital, Mr. Robertson submitted to a urine drug screen and a blood-alcohol test. The urine drug screen showed a negative result, while the blood-alcohol test showed a blood-alcohol level of less than 0.01%. Mr. Robertson subsequently filed a claim for workers’ compensation benefits. ERC and its workers’ compensation carrier, Liberty Mutual Insurance, controverted this claim on the basis that Mr. Robertson’s injuries were “substantially occasioned by the use of alcohol” and were not compensable under Ark. Code Ann. § 11 — 9— 102(5)(B)(iv) (Supp. 1997).

At the hearing before the administrative law judge (ALJ), Mr. Robertson admitted his history of alcohol abuse. Medical reports corroborated this history and also reflected that Mr. Robertson told his doctors he was not drinking on the day of the accident or the day before the accident. Similarly, Mr. Robertson’s girlfriend told his doctors that he was not drinking on the day of the accident, although he drank two beers the day before the accident. Mr. Robertson’s supervisor, Mr. Michael Austin, also testified that he was not drinking on the day of the accident. Medical reports noted that on September 18 and 19 Mr. Robertson had “the faint smell of alcohol on his breath,” and “the- smell of a fruitescent substance on his breath.” However, the toxicology report reflected conflicting test results for the presence of alcohol on September 18, the day of the accident: no alcohol was detected in the specimen collected at 9:50 p.m. and less than 0.01% was detected from blood drawn at 9:55 p.m. Finally, Mr. Robertson’s doctors concurred that a seizure related to alcohol-withdrawal syndrome caused him to fall on September 18, 1995.

The ALJ awarded workers’ compensation benefits to Mr. Robertson, finding that no alcohol was present so as to raise the statutory presumption set forth in Ark. Code Ann. §11-9-102(5)(B)(iv), and that, even if the presence of alcohol was established, the evidence was sufficient to prove that Mr. Robertson’s injury was not substantially occasioned by alcohol. The ALJ further concluded that Mr. Robertson’s fall was idiopathic and compensable because the conditions at his worksite contributed to the injury. ERC appealed the ALJ’s decision to the Workers’ Compensation Commission. After conducting a de novo review of the record, the Commission adopted the findings of the ALJ and affirmed the ruling. The Court of Appeals affirmed the Commission’s decision. ERC Contr. Yard & Sales, supra.

We granted ERC’s petition for review because this case presents an opportunity to address the statutory presumption created by Ark. Code Ann. § ll-9-102(5)(B)(iv). We also address whether there is substantial evidence to support the Commission’s determination that Mr. Robertson’s injury was not substantially occasioned by the use of alcohol.

It is well settled that upon a petition for review, we consider the case as though it were originally filed in this court. Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). On appeal of a workers’ compensation case from the Court of Appeals to this court, we view the evidence in a light most favorable to the Commission’s decision, and we uphold that decision if it is supported by substantial evidence. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Id.

A prima facie presumption existed under our prior workers’ compensation law that an injury did not result from intoxication of the injured employee. Ark. Code Ann. § 11 — 9-707(4) (1987). Under this statute, the employer bore the burden of rebutting that presumption by proving that the employee was intoxicated and that the employee’s injury resulted from intoxication. In 1993, Ark. Code Ann. § 11-9-707(4) (1987) was repealed and replaced with the following provision, codified at Ark. Code Ann. § ll-9-102(5)(B)(iv) (Supp. 1997):

(B) “Compensable injury” does not include:
* * * *
(iv)(a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.
(b) The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebut-table presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders.
* * * *
(d) An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician’s orders did not substantially occasion the injury or accident.

The two issues presented for resolution both involve statutory construction. A cardinal rule of statutory construction is to give effect to the intent of the legislature. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998); Citizens to Estab lish a Reform Party v. Priest, 325 Ark. 257, 926 S.W.2d 432 (1996). The well-established approach for determining the intent of the legislature is to look first at the plain language of the statute and, giving the words their plain and ordinary meaning, construe the statute just as it reads. Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). If the language of the statute is not ambiguous and plainly states the intent of the legislature, then we will look no further. Id.

The first issue raised by ERC is whether the evidence in this case triggered the rebuttable presumption that an injury was substantially occasioned by the use of alcohol pursuant to Ark. Code Ann. § ll-9-102(5)(B)(iv)(b). Specifically, ERC contends that Mr. Robertson’s blood-alcohol-test results established the presence of alcohol, thereby triggering the statutory presumption. We agree.

A statutory presumption is a rule of law by which the finding of a basic fact gives rise to the existence of a presumed fact, unless sufficient evidence to the contrary is presented to rebut that presumption. Stone v. State, 254 Ark. 1011, 498 S.W.2d 634 (1973); Black’s Law Dictionary 1185 (6th ed. 1990). In the instant case, the basic fact that will invoke the application of the presumption is the presence of alcohol. The plain language of Ark. Code Ann. § 11-9-102 provides that once the presence of alcohol is established as a fact, there is a presumption that any injury or accident was substantially occasioned by the use of alcohol. The statute does not quantify the term “presence.” Therefore, alcohol is present whenever any amount of alcohol is revealed, no matter how small. Although Mr. Robertson’s blood-alcohol test revealed a low alcohol level, it nonetheless revealed the presence of alcohol. We thus agree with ERC that this evidence triggered the statutory presumption.

ERC next argues that the evidence presented by Mr. Robertson was insufficient to rebut the presumption; that is, that Mr. Robertson failed to prove by a preponderance of the evidence that his injury was not substantially occasioned by the use of alcohol. Ark. Code Ann. § ll-9-102(5)(B)(iv)(d). Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. See Clark v. State, 253 Ark. 454, 486 S.W.2d 677 (1972); Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998). We find that substantial evidence exists to support the Commission’s finding that this accident was not substantially occasioned by the use of alcohol, and that the presumption was rebutted by a preponderance of the evidence. Specifically, Mr. Robertson’s supervisor, Michael Austin, testified that Mr. Robertson did not use alcohol on the day of the injury. The medical reports reflect that Mr. Robertson told his doctor he did not consume any alcohol on the day of the injury. This was also corroborated by his girlfriend’s contemporaneous statements to the doctors. Mr. Robertson’s blood-alcohol test indicated a very low level of alcohol in his system. Finally, Mr. Robertson’s treating physicians opined that alcohol withdrawal caused the seizure.

With regard to the Commission’s finding that Mr. Robertson’s fall was caused by an alcohol-withdrawal seizure, ERC argues that the fall was “substantially occasioned by the use of alcohol.” According to ERC, the causal connection is established by the following sequence of events: but for Mr. Robertson’s long-term use of alcohol, he would not have suffered an alcohol-withdrawal seizure, and but for the seizure he would not have suffered a fall. In order to address this argument, we must construe the phrase “substantially occasioned by the use of alcohol” in Ark. Code Ann. § ll-9-102(5)(B)(iv). As previously stated, we look first at the plain language of the statute and, giving the words their plain and ordinary meaning, construe the statute just as it reads. Leathers v. Cotton, 332 Ark. 49, 961 S.W.2d 32 (1998); Vanderpool, supra.

First, we turn to the plain and ordinary meaning of the words themselves. The word “occasion” when used as a verb is defined in Black’s Law Dictionary as “to produce; to cause incidentally or indirectly; to bring about or be the means of bringing about.” Black’s, supra, at 1078. Thus, the word “occasion” is broad in scope and, standing alone, encompasses causation that may be indirect in origin. However, the word “occasioned” is modified by the adverb “substantially,” which is defined as “actually and essentially.” Black’s, supra at 1428-29. When the words “substantially occasioned” are used together, the causal connection becomes more immediate and direct. Finally, the statute provides that the injury must be caused “by the use of alcohol,” not by abstinence from the use of alcohol. We, therefore, conclude that the plain and ordinary meaning of the phrase “substantially occasioned by the use of alcohol” requires that there be a direct causal link between the use of alcohol and the injury in order for the injury to be noncompensable. To conclude otherwise would involve the addition of words that do not appear in the text of Ark. Code Ann. § 11-9-102(5) (B)(iv).

In the instant case it is undisputed that Mr. Robertson’s injury was caused by his withdrawal from alcohol. Thus, we must also conclude that the Commission properly applied the plain and ordinary meaning of Ark. Code Ann. § 11-9-102(5)(B)(iv) when it determined that Mr. Robertson’s injury was not substantially occasioned by the use of alcohol.

In its final argument, ERC contests the Commission’s finding that Mr. Robertson’s fall was idiopathic in nature. ERC suggests that it is incongruous to find that the fall was caused by a seizure related to alcohol-withdrawal syndrome, and then conclude that the fall was idiopathic or unexplained. We first note that injuries sustained due to an unexplained cause are different from injuries where the cause is idiopathic. An idiopathic fall is one whose cause is personal in nature, or peculiar to the individual. 1 Larson, Workers’ Compensation Law, § 12.11 (1998); see also Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158 (1996); Little Rock Convention & Visitors Bur. v. Pack, 60 Ark. App. 82, 959 S.W.2d 415 (1997); Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496 (1987). Because an idiopathic fall is not related to employment, it is generally not compensable unless conditions related to employment contribute to the risk by placing the employee in a position which increases the dangerous effect of the fall. Larson, supra. Although Mr. Robertson’s fall was caused by alcohol withdrawal, which was a condition personal to him, his placement on scaffolding twelve to fifteen feet above the ground increased the dangerous effect of the fall. We, therefore, hold that there is substantial evidence to support the Commission’s finding that Mr. Robertson suffered a compensable idiopathic fall.

On a cross-appeal, Mr. Robertson argues that the Commission’s finding that he was making $5.00 an hour is not supported by substantial evidence. At the hearing, Mr. Robertson testified that he was to make $6.00 per hour. He acknowledged that he had previously testified in his deposition that he was making $5.00 per hour. His employer, Mr. Michael Austin, testified that Mr. Robertson’s rate was to be $5.00 per hour. It is well-established that the credibility of witnesses and the weight to be accorded to their testimony are matters exclusively within the province of the Commission. Benton Serv. Ctr. v. Pinegar, 269 Ark. 768, 601 S.W.2d 227 (1980); see also Continental Express, supra; James River Corp. v. Walters, 53 Ark. App. 59, 918 S.W.2d 211 (1996). The Commission is entitled to give greater weight to Mr. Robertson’s deposition testimony and the testimony of his employer. We thus conclude that substantial evidence supports the Commission’s decision.

Affirmed.


author: Per Curiam.

text:
    Leslie Ray ABBOTT v. STATE of Arkansas
    CR 98-1256
    977 S.W.2d 668
    Supreme Court of Arkansas
    Opinion delivered November 5, 1998

      Michael W. Langley, for appellant.

      No response.
   Per Curiam.

Leslie Ray Abbott, by his attorney, has filed a motion for rule on the clerk.

His attorney, Michael W. Langley, admits in his motion that the record was tendered late due to a mistake on his part.

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

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the committee on Professional Conduct.


author: Per Curiam. Tom Glaze, Justice,

text:
    H. Stacy CLAYTON, J. Pat Belew, Joan Markland Belew, and Markland Labs of Arkansas, Inc. v. IDEAL CHEMICAL & SUPPLY COMPANY
    98-1113
    977 S.W.2d 228
    Supreme Court of Arkansas
    Opinion delivered November 5, 1998

      Preston G. Hicky, for appellants.

      Harrill & Sutter, PLLC, by: Raymond W. Harrill, for appellee.
   Per Curiam.

Appellee Ideal Chemical & Supply Company has filed a motion to dismiss the appeal of appellants H. Stacy Clayton, J. Pat Belew, John Markland Belew, and Markland Labs of Arkansas, Inc., for failure to include in their notice of appeal a statement that financial arrangements have been made with the court reporter for preparation of the transcript, as required under Ark. R. App. P. — Civ. 3(e). The pertinent facts and dates follow: On March 27, 1998, the Lee County Circuit Court entered judgment in favor of appellee, awarding $71,312.28, with the judgment to bear interest at 10% per annum and to include costs of $210.00. On April 24, 1998, appellants filed a timely notice of appeal with the circuit court, indicating their intent to appeal the case to the Arkansas Court of Appeals. The notice included a statement that the transcript had been ordered from Ms. Linda E. Worstell, but did not include a statement that financial arrangements had been made to secure the record. Appellee filed a motion to dismiss the appeal with the circuit court on June 29, 1998, citing failure to state that financial arrangements have been made as an invalidating defect in the notice. On July 7, 1998, appellants filed a response to the motion in the circuit court, generally denying that it was defective. Appellants concurrently filed an amended notice of appeal, stating that financial arrangements had been made with Ms. Worstell, as required under Ark. Code Ann. § 16-13-510(c). Appellants filed an affidavit executed by Ms. Worstell, along with their memorandum brief in support of their response to the motion to dismiss the appeal. In the affidavit, Ms. Worstell asserted that financial arrangements had been made and that she had received a fifty percent down payment. Appellants also requested, and the circuit court granted, an extension of sixty days to file the record in the appellate court, making the transcript due on or before September 21, 1998.

On September 10, 1998, appellee filed a motion to dismiss the appeal with this court. The motion was accompanied by a partial transcript, which included certified copies of the above-referenced documents. Appellee based this filing on the fact that the circuit court had not acted on its motion at that time. On September 18, 1998, appellants tendered a complete transcript of the underlying proceeding to the clerk, and the case was assigned the case number CA 98-1145.

In Green v. Williford, 331 Ark. 533, 961 S.W.2d 766 (1998) (per curiam), we concluded that the fact that a notice of appeal may be invalid does not render the notice automatically void but rather voidable until actually annulled. We stated that while the financial-arrangement statement is essential to a notice of appeal, any challenge to the validity of the notice must be timely made. Id. Where the appellee waited until after the appellant had paid the court reporter and the record had been lodged in this court, we concluded that the contest was not timely made. Id. Specifically, we noted that although the notice of appeal may be invalid due to the omission of the financial-arrangements statement, this will not be fatal to the appeal if the record, including the trial transcript, is lodged with the Clerk in a timely manner. Id.

In Quality Fixtures v. Multi-Purpose Fac. Bd., 334 Ark. 209, 970 S.W.2d 815 (1998) (per curiam), we applied our decision from Green v. Williford. We noted that the “purpose behind the financial-arrangements language has been satisfied by the tendering of the record prior to submission of the motion to dismiss.” Quality Fixtures, 334 Ark. at 211, 970 S.W.2d at 816 (emphasis added). Therefore, the pertinent issue that we face in the instant case is whether appellants tendered the record prior to submission of appellee’s motion to dismiss.

Appellants lodged the record in case number CA98-1145 on September 18, 1998. The lower court had granted appellants’ motion for an extension of time in which to lodge the record containing the trial transcript until September 21, 1998; so, the record was filed in a timely manner. Appellee’s September 10, 1998 motion to dismiss came under submission to this court on September 24, 1998, after the record had been lodged with the Clerk. In addition, appellants, in their amended notice of appeal filed with the circuit court on July 7, 1998, submitted proof to the circuit court that they had paid Ms. Worstell one-half of her fee for preparing the transcript in advance.

By the time that appellee’s motion to dismiss was under submission to this court, appellants had lodged the record with the Clerk and paid the amount that the court reporter required. We conclude on the basis of the Green and Quality Fixtures cases that the purpose underlying Ark. R. App. P. — Civ. 3(e) has been satisfied in this case, and we deny appellee’s motion to dismiss this appeal. However, we also recognize that it is time for this Court to revisit the provisions of Rule 3(e) with a view toward making appropriate modifications.

Newbern and Glaze, JJ., concurring in part, dissenting in part.

Tom Glaze, Justice,

dissenting in part; concurring in part. When this court amended Ark. R. App. P. — Civ. 3(e) to require that a notice of appeal state that financial arrangements had been made with the court reporter, and added that a notice of appeal is invalid if it does not contain this statement, see per curiam order of June 23, 1997, I had serious reservations that the new requirement was necessary. I joined in the amendment because the sole expressed reason for adopting it was to eliminate delays in the appeal process. See Reporter’s Notes, [March] 1997 Amendment to Ark. R. App. P. — Civ. 3. It now appears that another purpose was intended — to assure court reporters are paid for their work. I think this last objective would be best left to the trial judges, court reporters, and attorneys to resolve.

In any event, this court in Green v. Williford, 331 Ark. 533, 961 S.W.2d 766 (1998) (per curiam), interpreted Rule 3(e), as amended, to mean that the fact a notice of appeal may be invalid does not render the notice automatically void, but rather voidable until actually annulled. This less than strict construction of the language in Rule 3(e) was a mistake, if this court’s intended goal was to prevent delays in the appellate procedure. After all, invalid means illegal, not voidable.

We had another opportunity to interpret Rule 3(e) in Quality Fixtures, Inc. v. Multi-Purpose Facilities, Inc., 334 Ark. 209, 970 S.W.2d 815 (1998), where we again allowed an appeal where the notice of appeal failed to comply with the Rule’s clear language. There, we refused to enforce the Rule 3(e) mandatory terms because appellant Quality Fixtures had tendered the transcript to this court’s clerk prior to the submission (not filing as noted in the Greene decision) of appellee Multi-Purpose Facilities’ motion to dismiss.

In short, although this court’s Rule 3(e) as amended clearly provides a notice of appeal is invalid if it does not contain the financial-arrangement language in the appellant’s notice of appeal, the court will still permit an invalid notice if the appellant substantially complies with the Rule. In other words, this court, in spite of its new Rule 3(e) language, has returned to its earlier Rule 3(e) interpretation which allowed an appellant merely to comply substantially with Rule 3(e) requirements. See Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996).

In conclusion, I believe we should remove the “invalid” terminology from the present Rule which is confusing and misleading. Until then, I will join with the majority’s tortured interpretation of the existing language contained in Rule 3(e), which permits the appellants to continue their appeal even though they have filed an invalid notice of appeal.

Newbern, J., joins this opinion.


text:
    FEDERAL FINANCIAL COMPANY v. Wendell H. and Elizabeth A. NOE
    98-381
    983 S.W.2d 107
    Supreme Court of Arkansas
    Opinion delivered November 12, 1998

      Barrett & Deacon, by: Ralph W. Waddell, for appellant.

      Warren E. Dupwe, P.A., for appellees.
   Tom Glaze, Justice.

Federal Financial Company (“FFC”) appeals the order of the Craighead County Circuit Court which dismissed the FFC’s cause of action against Wendell H. and Elizabeth Noe because it was time barred. In so holding, the trial court rejected the FFC’s argument that the six-year statute of limitations provided in 12 U.S.C.A. § 1821(d)(14)(A)(i) was applicable. Instead, the trial court barred the FFC’s action under Arkansas’s five-year statute of limitations as set out in Ark. Code Ann. § 16-56-111 (Supp. 1997).

When the FFC tendered its direct brief in this appeal, and requested the case’s certification to this court, the FFC believed that the appeal presented an issue of first impression for this court’s determination, making jurisdiction proper under Ark. Sup. Ct. R. l-2(b)(l) (1998). The FFC was unaware of our five-day-old decision in UMLIC 2 Funding Corp. v. Butcher, 333 Ark. 442, 970 S.W.2d 211 (1998), where we had just considered and decided the same statute of limitations issue the parties now raise. Although this case technically no longer involves an issue of first impression, we retain jurisdiction so that the case may be decided without further delay. In general, the issue we are asked to consider is whether the FFC, as an assignee of a promissory note from the Resolution Trust Corporation (“RTC”), is entitled to the benefit of the six-year statute of limitations which federal law provides RTC as the receiver of Unipoint Federal Savings Bank, an insured depository institution which originally held the note. The relevant facts are not in dispute.

On June 9, 1987, the Noes executed a promissory note to Unipoint Federal Savings Bank in the principal sum of $12,150 plus interest at the rate of 10% per annum until July 10, 1992. The terms of the note provided that the Noes were to make 60 monthly payments in the amount of $160.60 commencing August 10, 1987 (and on the 10th of each month thereafter), and a balloon payment of $7,725.72 on August 10, 1992. The note further provided that the Noes would be in default if they failed to make one or more payments on time or in the amount due.

On June 22, 1990, the note was assigned to RTC as receiver for Unipoint. After RTC’s appointment, the Noes defaulted on the note by fading to make payments after February 1991. On June 8, 1994, RTC assigned the note to the FFC. The FFC subsequently made demand on the Noes for payment of the amount owed, but the Noes refused to pay according to the demand. As a result of the Noes’ refusal, the FFC initiated the underlying suit against the Noes on January 7, 1997, to recover the amount owed on the note, including interest and late charges, and reasonable attorney’s fees and costs. The Noes denied that they were indebted to the FFC and claimed that the note had been paid in full. Alternatively, the Noes alleged that the FFC’s complaint was barred by Arkansas’s five-year limitations period on promissory notes, then codified as Ark. Code Ann. § 16-56-111 (a) (Supp. 1989) [now § 16-56-111 (Supp. 1997)].

On November 12, 1997, the FFC moved for summary judgment, arguing that the Noes’ defense failed to raise a genuine issue of material fact. The FFC responded to the Noes’ pleading of the statute of limitations, asserting that it had timely commenced legal proceedings against the Noes within the six-year statute of limitations for a contract action commenced by a receiver. See 12 U.S.C.A. § 1821(d)(14). The motion was submitted to the court upon the pleadings and briefs of the parties, and on January 27, 1998, the circuit court issued a letter opinion in which it determined that the FFC’s action is barred by the Arkansas’s five-year limitations period. The circuit court entered its formal order on February 18, 1998, incorporating its earlier letter opinion. The order, citing the case of Wamco, III, Ltd. v. First Piedmont Mortgage, 856 F.Supp. 1076 (E.D.Va. 1994), stated that it was clear that 12 U.S.C.A. § 1821(d)(14)(A)(i) does not inure to the benefit of the FFC, and therefore the FFC’s action is time barred under Arkansas’s five-year statute of limitations. Specifically, the circuit court found that any action instituted by the FFC was barred in February 1996, five years after the Noes’ admitted default on the promissory note. The FFC’s motion for summary judgment was denied, and its complaint dismissed with prejudice.

As previously mentioned, the facts here are undisputed, thus the outcome of the matter turns on a question of law which we answered in Butcher. There, we adopted the six-year limitations period set forth in § 1824(d)(14) of the Financial Institutions Reform Recovery and Enforcement Act (FIRREA), Pub. L. No. 1-1-72, 103 Stat. 277 (1989) (codified in disconnected sections of Tides 12 and 15 of the U.S. Code), and held that it applies to private transferees and assignees of federal institutions that serve as conservators and receivers. Butcher, 333 Ark. at 442, 970 S.W.2d at 213. The situation in Butcher which we relate below is nearly identical to the one here.

The Butchers executed a promissory note in favor of Grand Prairie Savings and Loan Association, but defaulted on the note in 1989. Grand Prairie went into receivership, and RTC was appointed as the receiver of the failed savings and loan on behalf of the Federal Deposit Insurance Corporation. RTC initiated a foreclosure action against the Butchers, but it was later dismissed by the trial court for failure to prosecute. In 1993, RTC assigned the note to UMLIC 2 Funding Corporation. UMLIC then refiled the case on December 20, 1994, having previously made written demand on the Butchers. The trial court denied UMLIC’s motion for summary judgment, in which it argued that FIRREA controlled the statute of limitations question. The Butchers then moved to dismiss the complaint on the basis that the entire claim was barred by Ark. Code Ann. § 16-56-111 (Supp. 1989). The trial court agreed and dismissed UMLIC’s complaint, ruling that the foreclosure action was barred because it fell outside the five-year statute of limitations for written instruments. UMLIC appealed the decision. We reversed and remanded the trial court’s decision because we held that the six-year statute of limitations contained in FIRREA controlled. Butcher, 333 Ark. at 447-448, 970 S.W.2d at 214.

The FFC recognizes and correctly states the reasons why this court adopted the FIRRJEA limitations period in Butcher. First, our decision is supported by the great weight of authority. Butcher, 333 Ark. at 446, 970 S.W.2d at 213. Every federal court which has considered the question, including the Eighth Circuit United States Court of Appeals, has concluded that the extended statute of limitations should be allowed to be claimed by assignees of the FDIC or similar receivers. Cadle Co. II, Inc. v. Stamm, 633 So.2d 45, 47 (Fla. App. 1 Dist. 1994) (Citations omitted). Similarly, the overwhelming majority of state courts have concluded that the benefit of the federal statute of limitations should inure to assignees. Id. Second, our holding in Butcher is supported by policy considerations underlying FIRREA. In D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942), the Supreme Court held that the FDIC was protected from the effects of secret agreements which would negatively impact the bank assets from which the FDIC or FSLIC could satisfy the claims of insured account holders. In Federal Deposit Insurance Corporation v. Bledsoe, 989 F.2d 809-810 (5th Cir. 1993), the first federal Circuit Court to address the issue in this case, explained that after D’Oench, Duhtne, courts have extended this protection to assignees of the FDIC and FSLIC, holding that doing so provides the federal agency with greater ability to fulfill its mission, by being able to sell such assets and use the proceeds to protect the assets of the failed financial institution.

The third and most important reason supporting the Butcher decision is that the law of assignments in Arkansas supports giving the FFC the longer limitations period. In 1991, the General Assembly codified our common law rule pertaining to assignees’ rights and powers in Ark. Code Ann. § 4-3-203 (b) which states that the transfer of an instrument vests in the transferee any right of the transferor to enforce the instrument. Thus, the FFC, as the transferee of the Noes’ promissory note, steps into the shoes of the RTC and enjoys its same rights and liabilities under Arkansas law. See Butcher, 333 Ark. at 447, 970 S.W.2d at 214.

The Noes submit that the holding in Butcher is peculiar to the facts of that case because it was the receiver, RTC, who filed the initial action on the promissory note and not RTC’s assignee. The Noes direct this court to its language in Butcher wherein we said, “We hold that the federal limitations period is appropriate under the facts of this case.” 333 Ark. at 445, 970 S.W.2d at 213 (emphasis provided). The Noes’ argument is meritless. The court clarified its decision later in the opinion and expressly stated that we were adopting the six-year statute of limitations available under FIRREA, as well as holding that it applies to private transferees and assignees like UMLIC and the FFC, just as it does to receivers like RTC. Id. at 447, 970 S.W.2d at 214. Hence, the Butcher holding was not a determination based on facts, but rather was one based on the law. Additionally, the Noes overlook the fact that in Butcher the cause of action filed by RTC had been dismissed, and UMLIC had to refile the claim in order to collect on the promissory note. Thus, the suit that was before this court in Butcher was assignee UMLIC’s action, not the one filed by RTC. Finally, the Noes fail to cite any convincing authority to support their argument that the RTC, as the receiver, must originate the suit in order for the federal statute of limitations to apply, and we do not consider assignments of error that are unsupported by convincing authority. See Porter v. Harshfield, 329 Ark. 130, 139, 948 S.W.2d 83, 87 (1997). It is well to note, though, that other cases have applied FIRREA’s six-year limitations period, despite the fact that it was the private transferee or assignee who had filed suit rather than the original receiver. See, i.e., Union Recovery Ltd. Partnership v. Horton, 477 S.E.2d 521 (Va. 1996).

Applying the Butcher holding to the facts of this case, when RTC acquired the Noes’ note on June 22, 1990, it was entitled as a receiver under FIRREA to institute actions on the note under the longest period provided by the combined application of subsections A and B of 12 U.S.C.A. § 1821(d)(14). Because the Noes’ admitted default in February 1991, under the provision of B(ii), RTC had six years from that date to institute an action. Accordingly, RTC had until February 1997 to sue upon the note. The FFC acceded to RTC’s rights when it was assigned the note in June 1994, and the FFC timely filed its complaint on January 7, 1997. Because the trial court erred in dismissing the complaint with prejudice, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

       The relevant portions of 12 U.S.C.A. § 1821(d)(14)(A) and (B) provide:
      (A) In general. Notwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the Corporation as conservator or receiver shall be —
      (i) in the case of any contract claim, the longer of —
      (I) the 6-year period beginning on the date the claim accrues; or
      (II) the period applicable under State law;
      (B) Determination of the date on which the claim accrues. For purposes of subparagraph (A), the date on which the statute of limitation begins to run on any claim described in such subparagraph shall be the later of —
      (i)the date of the appointment of the Corporation as conservator or receiver; or
      (ii) the date on which the cause of action accrues.
      (Emphasis provided).

       RTC enjoys the same protected status as the FDIC and FSLIC. When acting as a receiver of an insured depository institution, RTC is deemed to be an agent of the United States. 12 U.S.C. § 1441a(b)(l)(A). As such, RTC, has the same rights and powers as does the FDIC under FIRREA. 12 U.S.C. § 1441a(b)(4)(A). Thus, although created for different purposes, RTC and FDIC are in all respects identically situated when acting as receivers in the name of the United States under FIRREA. Id. Therefore, because RTC enjoys the same status as the FDIC, the policy considerations supporting extension of the FDIC’s protections to its assignees is equally applicable to RTC’s assignees, like the FFC in this appeal.


author: Donald L. Corbin, Justice.

text:
    K.M., Father of J.M., Minor v. STATE of Arkansas
    97-1116
    983 S.W.2d 93
    Supreme Court of Arkansas
    Opinion delivered November 12, 1998
    [Petition for rehearing denied December 17, 1998.]

      Sharon Carden Streett and Cheryl Vogelpohl Upshaw, for appellants.

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant J.M., a minor, through his father K.M., appeals the judgment of the Craighead County Chancery Court adjudicating him delinquent and sentencing him to one year of probation, community service, continued counseling, and fines. The Arkansas Court of Appeals certified this appeal to us; hence, jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(d). Appellant argues on appeal that the trial court erred by not allowing and considering evidence of his mental disabilities to determine if he was competent to stand trial, if he had the required intent to commit second-degree battery, and if he was capable of conforming his behavior to the requirements of the law at the time of the offense. We affirm.

The record reflects that on September 6, 1996, the State filed a delinquency petition in juvenile court, alleging that Appellant had committed second-degree battery against his teacher, Stacey Poole, and other school personnel on September 4, 1996. Appellant, who was then age twelve, was a student in Poole’s self-contained classroom for students with severe mental disorders at the Jonesboro Sixth Grade Academic Center. Appellant has an extensive history of severe emotional and mental disorders, including attention deficit hyperactivity disorder, oppositional defiant disorder, impulse control disorder, pervasive developmental disorder, bipolar disorder, hypomania, specific learning disabilities, depression, paranoia, and possible psychosis. Appellant has undergone treatment since he was a toddler, consisting of long-term and short-term treatments in mental institutions, behavioral therapy, and numerous medications.

During the two-day hearing on the petition, the State presented evidence that Appellant had left Poole’s classroom and refused her instruction to return. Appellant had earlier talked about a neighbor boy molesting him and had become increasingly agitated throughout the morning. Poole called the school principal, Brad Faught, for assistance and took the rest of her students to the cafeteria. In response to Appellant’s request to see the school counselor, Faught told him that the counselor was off campus at the time but that he could speak with her when she returned. Faught also called Appellant’s mother, who instructed him to tell Appellant that if he followed instructions, he would be allowed to attend a ball game, but that if he did not follow instructions, he would not be allowed to go. Appellant indicated that he did not want them to call his mother, and then proceeded to knock over some furniture and scribble on some desks. Appellant also sprayed a bottle of “409” at a coach who had arrived to help. In an effort to calm Appellant, Faught eased him to the floor from behind. Poole, who had returned to the classroom, approached Appellant while he was cursing and flailing his arms. Appellant then hit Poole in the face and chest. Eventually, Appellant’s mother arrived and gave him medicine and helped him straighten up the classroom after he was calmer. Poole testified that she took pain medication for her injuries the remainder of that afternoon and night.

In response to the State’s motion for discovery, Appellant gave notice that he intended to raise the affirmative defense of not guilty by reason of mental disease or defect. Appellant also moved to stay the proceedings for the purpose of ordering a psychiatric evaluation prior to the delinquency hearing. The trial court denied the motion. The trial court also denied Appellant’s request to consider his mental disorders in the adjudication phase of the hearing, in the context of an insanity defense, stating that it was not available in a juvenile proceeding. During the dispositional phase of the hearing, however, the trial court heard testimony from Appellant’s psychiatrist Dr. Larry Felts, Appellant’s mother Rosemary Flughes, Poole, Faught, and Coach Nathan Wright. Felts, Hughes, and Poole testified about Appellant’s various disorders and manifestations, as well as their efforts to manage his disabilities.

The trial court ultimately concluded that Appellant had committed battery in the second degree against Poole, by purposefully causing physical injury to one he knew to be a teacher on school grounds pursuant to Ark. Code Ann. § 5-13-202(a)(4) (Repl. 1997). The trial court adjudicated Appellant delinquent pursuant to Ark. Code Ann. § 9-27-303 (Repl. 1998) and sentenced him to one year of supervised probation. The trial court further assessed court fees of $35 and probation fees of $15 per month for the duration of Appellant’s probation. Additionally, Appellant was ordered to perform twenty-four hours of public service, supervised by his mother, and to continue his therapy.

I. Competency to Stand Trial

Appellant first argues that the trial court erred when it refused his motion to stay the proceedings for a psychiatric examination, and that under Ark. Code Ann. § 5-2-302 (Repl. 1997), he was entitled to such an examination to determine if he was competent to stand trial. We do not reach the merits of this argument, as it is not clear from Appellant’s abstract that the issue of his competency to stand trial was raised below or ruled upon by the trial court. The only reference in the abstract to a motion to stay proceedings was directed at staying the proceedings pending the outcome of a “Due Process hearing,” which was apparently already under way. There is no similar motion pertaining to a psychiatric examination under section 5-2-302. It is well settled that the appellant bears the burden of producing both a record and an abstract sufficient for appellate review. Sherwood v. Glover, 331 Ark. 124, 958 S.W.2d 526 (1998); Porter v. Porter, 329 Ark. 42, 945 S.W.2d 376 (1997). Where the abstract does not reflect that the argument was made in the trial court, we will not reach the merits of the argument on appeal. Barber v. Watson, 330 Ark. 250, 953 S.W.2d 579 (1997).

II. Intent

Appellant argues that the trial court failed to admit or consider evidence of his mental state in determining that he had the requisite intent, or mens rea, to commit second-degree battery. Specifically, Appellant argues that the trial court erred by failing to consider evidence of his mental state to negate the required intent to commit the crime. He contends that the trial court did not make a finding that he had the requisite mental state to commit the crime. We disagree.

Section 5-13-202(a)(4)(B) provides in relevant part that one commits battery in the second degree if:

(4) He intentionally or knowingly without legal justification causes physical injury to one he knows to be:
(B) A teacher or other school employee while acting in the course of employment!.]

We view Appellant’s argument as a challenge to the sufficiency of the evidence with respect to the element of intent required by section 5-13-202(a)(4)(B). In reviewing a juvenile criminal case, we look at the record in the light most favorable to the State to determine whether there is substantial evidence to support the conviction. Garcia v. State, 333 Ark. 26, 969 S.W.2d 591 (1998). This court has held that the only specific intent required to commit second-degree battery is the intent to cause physical injury. See Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991); Holmes v. State, 288 Ark. 72, 702 S.W.2d 18 (1986). We conclude that the State presented substantial evidence below to support the trial court’s finding that Appellant had the requisite intent to commit the crime.

The trial court considered evidence of Appellant’s mental state in determining whether he “intentionally or knowingly” committed the crime. The trial court heard Dr. Felts’s testimony that Appellant was able to control his physical actions, and that he thought Appellant could understand options when presented to him. The trial court also considered Faught’s testimony that Appellant understood the two options his mother gave him concerning whether he would get to go to the ball game, because Faught testified that Appellant had started toward the classroom and asked them not to call his mother again. The trial court also heard testimony from Appellant’s mother and Poole, describing his various mental and emotional disorders. In sum, the trial court’s ultimate conclusion that Appellant had purposefully caused Poole’s physical injury was made after it considered evidence of Appellant’s mental and emotional disabilities. We therefore affirm on this issue.

III. Insanity Defense

Appellant argues that the trial court erred when it refused to admit and consider evidence of his mental state during the adjudication phase of the hearing to determine whether he was able to conform his conduct to the requirements of the law at the time of the incident, as provided under Ark. Code Ann. § 5-2-312 (Repl. 1997). Appellant asserts that the trial court’s refusal to allow such evidence constitutes a violation of his rights to equal protection under the Fourteenth Amendment.

The United States Supreme Court has recognized that an accused has a constitutional right not to stand trial if he or she is mentally incompetent at the time of trial. See Drope v. Missouri, 420 U.S. 162 (1975); Pate v. Robinson, 383 U.S. 375 (1966). In contrast, there does not appear to be a constitutional right to assert that one was insane at the time of the crime. See Medina v. California, 505 U.S. 437 (1992); Powell v. Texas, 392 U.S. 514 (1968). Thus, a defendant may assert the insanity defense only if the State has conferred that right by statute. Unquestionably, the Arkansas General Assembly gave criminal defendants in our circuit courts the right to assert the insanity defense when it passed Act 280 of 1975, which provides in relevant part that:

It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged, he lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct.

(codified at section 5-2-312). The issue presented by this case is whether the General Assembly also intended for this act to apply to juveniles during the adjudication phase of a delinquency proceeding in juvenile court.

The Equal Protection Clause of the Fourteenth Amendment provides that “No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. 14, § 1. Before we can address Appellant’s equal-protection argument, we must first decide whether the General Assembly intended for section 5-2-312 to apply to juveniles. If we conclude that section 5-2-312 does not apply to juveniles, we then proceed to the second question of whether the State’s decision to grant that statutory right to one class of people to the exclusion of another is a violation of the Equal Protection Clause.

In order to answer the first question, it is necessary to examine our statutes and the policies that influenced their passage. Arkansas has two distinct systems that are governed by two separate acts: (1) the Arkansas Criminal Code, Ark. Code Ann. §§ 5-1-101 to 5-77-301 (Repl. 1997), which governs proceedings in the circuit court, and (2) the Arkansas Juvenile Code, Ark. Code Ann. §§ 9-27-101 to 9-33-206 (Repl. 1998), which governs proceedings in the juvenile court. Arkansas’s insanity-defense statute, section 5-2-312, is contained in the Criminal Code and there is no corresponding or similar provision in the Juvenile Code. Thus, the language of both Codes must be scrutinized to determine whether the General Assembly intended to incorporate the insanity defense into the Juvenile Code. After careful examination, we find no such language.

The first rule of statutory construction is that the intent of the legislature must be gleaned from the plain and ordinary meaning of the words used in the statute. Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998); Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). There is, however, nothing in the plain meaning of the language used in section 5-2-312 indicating whether the General Assembly intended it to apply to proceedings in the circuit court, juvenile court, or both.

Because the statute itself provides no guidance on the issue, we must next turn to other statutes dealing with the insanity defense, as statutes relating to the same subject must be construed together and in harmony, if possible. See Johnson v. State, 331 Ark. 421, 961 S.W.2d 764 (1998); Stapleton, 331 Ark. 381, 969 S.W.2d 648. Arkansas Code Annotated § 5-2-305 (Repl. 1997), which provides for the psychiatric examination of a defendant who intends to assert the insanity defense, begins with the proclamation that it applies “Whenever a defendant [is] charged in circuit court[.]” Likewise, Ark. Code Ann. § 5-2-314 (Repl. 1997) declares that a “circuit court” shall make certain findings once a “defendant is acquitted on the ground of mental disease or defectf.]” When read in conjunction with these two statutes, it appears that the General Assembly intended for section 5-2-312 to apply only to proceedings in the circuit court.

Next, we turn to the language of the Juvenile Code to determine whether the General Assembly intended to grant juveniles a statutory right to the insanity defense. After carefully examining the Juvenile Code, we find no provision therein that incorporates, either specifically or by reference, the insanity defense contained in the Criminal Code. In fact, the only provision in the Juvenile Code that even remotely mentions the insanity defense is section 9-27-320, which prescribes when a juvenile may be fingerprinted and photographed and when that information may be used by the State or released to the public. In particular, section 9-27-320(b)(3)(B) provides that:

When a juvenile departs without authorization from the State Hospital, if at the time of departure the juvenile is committed as a result of an acquittal on the grounds of mental disease or defect for an offense for which the juvenile could have been tried as an adult, the Director of the Division of Mental Health Services shall release to the general public the name, age, and description of the juvenile and any other pertinent information the director deems necessary to aid in the apprehension of the juvenile and to safeguard the public welfare. [Emphasis added.]

Pursuant to section 9-27-318, a juvenile can be “tried as an adult” only if he or she is at least fourteen years of age and meets certain criteria specified in the remainder of the statute. It is undisputed that Appellant was twelve years old at the time of the alleged battery, and thus he could not have possibly been tried as an adult. Hence, there is no reason for us to decide whether the above language implicitly grants a juvenile, who is at least fourteen years old, the right to assert the insanity defense because such a holding would clearly have no impact on Appellant and thus would be advisory. See Central Emergency Med. Servs., Inc. v. State, 332 Ark. 592, 966 S.W.2d 257 (1998); Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (holding that an issue is moot if the judgment would have no practical effect on the litigant, and thus a decision rendered thereon would be advisory).

In sum, the insanity defense is a statutory right that can only be conferred by the General Assembly, and not by this court. We find nothing in either the Criminal Code or the Juvenile Code that suggests that the General Assembly intended to confer this statutory right to juveniles under the age of fourteen during the adjudication phase of a delinquency proceeding. Whether section 9-27-320(b)(3)(B) implicitly gives juveniles ages fourteen and over the right to assert the insanity defense is an issue to be resolved at some future date. Accordingly, we affirm the trial court’s ruling that Appellant did not have a right to assert the insanity defense during the adjudication phase of his juvenile-delinquency proceeding.

The remaining issue raised by Appellant is whether this State, acting through the General Assembly, violated the Equal Protection Clause when it granted adults, but not juveniles, the statutory right to assert the insanity defense. We do not reach the merits of this argument, as Appellant has not properly preserved it for appeal.

It is well settled that the record on appeal is limited to what is abstracted. Morse v. Sentry Life Ins. Co., 332 Ark. 605, 967 S.W.2d 557 (1998); Hooker v. Farm Plan Corp., 331 Ark. 418, 962 S.W.2d 353 (1998). The only summary we have in the abstract of the equal-protection argument raised below is the following:

Earlier I filed a Notice that we intended to raise the defense of mental disease or defect and there has been no mental examination ordered. The Arkansas Rules of Criminal Procedure apply to juvenile proceedings and those are procedures that are available under those Rules.
I think failure to consider that or to allow that to be considered is a violation of equal protection, in that it discriminates against children with disabilities like [Appellant’s], who don’t have those capacities, but have no way to bring that before the Court in the adjudication hearing.
. . . This is a significant issue for this child; he is very ill, a child with really significant emotional and mental problems. [Emphasis added.]

From this language, it appears that Appellant argued below that section 5-2-312 unconstitutionally discriminates against only those juveniles with preexisting mental disabilities, i.e., juveniles who suffered from a mental disease prior to the alleged offense. On appeal, however, he argues that the statute discriminates against all juveniles tried in juvenile court regardless of whether they suffered from a mental disease prior to the commission of the offense. This is a significant distinction because section 5-2-312 only requires that the accused be insane “at the time the defendant engaged in the conduct charged.” It does not require any proof that the defendant suffered from a mental disease or defect prior to the commission of the crime. Hence, the argument Appellant raises on appeal is materially different from the one he made before the trial court. As we have said on numerous occasions, we will not address arguments, even of a constitutional nature, that are raised for the first time on appeal. Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998); Beyer v. State, 331 Ark. 197, 962 S.W2d 751 (1998).

Affirmed.

       Appellant was convicted for only the count against Poole.


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

text:
    Diann K. DODSON (Douglas) and Ruthie Drain, Administratrix of the Estate of Freddie Drain v. CHARTER BEHAVIORAL HEALTH SYSTEM of NORTHWEST ARKANSAS, INC. d/b/a Charter Vista Hospital; and The Estate of Tammy Harrison (Butts)
    97-1427
    983 S.W.2d 98
    Supreme Court of Arkansas
    Opinion delivered November 12, 1998

      Jeff Slaton and Odom & Elliott, by: J. Timothy Smith, for appellant Ruthie Drain.

      Todd L. Griffin, for appellant Diann K. Dodson.

      Bassett Law Firm, by: Woody Bassett, for appellee.

      Prior, Barry, Smith , Karber & Alford, PLC, by: Ben T. Barry and Jacqueline J. Johnston, for appellee/cross-appellant.
   Robert L. Brown, Justice.

This is an appeal from a grant of a motion for a directed verdict in favor of appellee Charter Behavioral Health System of Northwest Arkansas, Inc. d/b/a Charter Vista Hospital (Charter Vista). Appellee/ cross-appellant The Estate of Tammy Harrison (Butts) cross-appeals on the failure of appellants Diann K. Dodson (Douglas) and Ruthie Drain, Administratrix of the Estate of Freddie Drain, who filed the complaint in this matter, to comply with the Statute of Non-Claim of the Probate Code (Ark. Code Ann. § 28-50-101(a) (Supp. 1997)). We affirm the directed verdict in favor of Charter Vista. We reverse the trial court’s ruling with regard to the cross-appeal and Statute of Non-Claim and hold that the claims of Dodson and the Drain Estate against the Harrison Estate are barred.

From March 9, 1994, to March 21, 1994, Tammy Harrison was an in-patient at Charter Vista Hospital in Fayetteville. Her diagnosis was severe depression, and she was placed on a suicide watch. According to a Psychiatric Evaluation completed by Dr. Stephen Dollins on March 9, 1994, she had suicidal ideations with a plan of driving in front of a truck to make her death look like an accident.

When Harrison was discharged from Charter Vista on March 21, 1994, she was directed to have counseling at the Ozark Guidance Center, also in Fayetteville, but this was not done because her health insurance would not cover the treatment. She did, however, attend ten aftercare group sessions at Charter Vista, the last being on June 23, 1994, which was the date of her death. Dr. Stephen Dollins also provided follow-up care and saw her on three occasions after her discharge from the hospital. Her last appointment with him was on May 24, 1994, when, according to his records, she appeared to be doing fine.

On June 23, 1994, Harrison attended an aftercare group session at Charter Vista led by counselor Judy Bostian. Her wrists had been cut, and she stated that she had thoughts of suicide. She was kept after the group session so that she could visit with Bostian but left at 8:30 p.m., with instructions from Bostian to call if she had thoughts of harming herself. At 10:15 p.m. that same night, Harrison called Charter Vista and spoke with Rochelle Knox, who assessed her as suicidal. Knox contacted the Mobile Assessment Team (MAT), which is part of the Charter Vista operation and which was created for the purpose of going to locations and assisting in psychiatric emergencies. When Harrison could not be reached at the number she had given, Knox called the Fayetteville Police Department and asked that they do a welfare check on Harrison. At 10:46 p.m., Harrison called Charter Vista, and because contact was reestablished, Knox canceled the police welfare check.

Juliette Minkel, a MAT member on duty with Charter Vista, spoke with Harrison for 45 minutes after she called back. Harrison told her that she was having problems coping with four children under three years old, including one-year-old twins. Also, her husband had recently left her. Harrison stated that she had cut her wrists earlier in the day because she wanted to hurt herself and her friend had put a Band-Aid on the injury. Based on the conversation, during which Harrison told Minkel that she did not want to die, Minkel determined that the earlier incident of cut wrists was self-mutilation and not a genuine suicide attempt. She stated that Harrison seemed to be functioning fully and was rational, and further that she appeared to be seeking the help she needed. Harrison agreed to come to Charter Vista at midnight. Minkel testified that she called Dr. Dollins, who agreed with the plan. (Dr. Dollins, however, testified that Minkel called him after Harrison’s death.)

While driving on State Highway 265 toward Charter Vista, Harrison crossed the centerline and struck a vehicle, injuring Debra Middleton. Further up Highway 265, she again crossed the centerline and struck a vehicle head-on. The driver of the car, Freddie Drain, was killed, and the passenger, Diann Dodson, was injured. Harrison was killed when her car caught fire as a result of the collision. The Medical Examiner’s Office performed an autopsy and rendered an opinion that Harrison’s death was due to suicide.

Diann Dodson sued the Estate of Tammy Harrison, Charter Vista, and Dr. Stephen Dollins and claimed negligence. Ruthie Drain, Administratrix of the Estate of Freddie Drain, intervened as a plaintiff against the same parties. Both complaints against Dr. Dollins were dismissed without prejudice pursuant to Ark. R. Civ. P. 41. Charter Vista then filed a cross-claim seeking contribution and proration of fault against the Estate of Harrison, and the Estate of Harrison did likewise against Charter Vista. The trial court allowed Progressive Insurance Company, the liability carrier which had insured Tammy Harrison, to interplead its policy limits of $50,000 into the Registry of the Court for distribution to the proper parties.

Charter Vista filed a motion for summary judgment with regard to the claims of Dodson and the Drain Estate and argued that it owed no duty to Dodson or Drain because it did not have a special relationship with Harrison at the time of her suicide and, thus, had no control over her. Charter Vista further asserted that the incident was not foreseeable, and that Dodson and Drain could not have been identified as potential victims even if there had been a duty to warn. The Harrison Estate also filed a motion for summary judgment against the plaintiffs, Dodson and the Drain Estate, and defendant Charter Vista and argued that their claims were barred by the Statute of Non-Claim because the claiming parties had not filed a claim in the probate estate within six months of publication of notice of the opening of the estate.

The trial court denied Charter Vista’s motion for summary judgment and concluded that the hospital did owe a duty to Dodson and Drain. The trial court denied the Harrison Estate’s motion under the Statute of Non-Claim and permitted the claims of Charter Vista, Dodson, and Drain to be considered as claims against the Harrison Estate. The case proceeded to trial. On the fourth and final day of the trial, the trial court granted Charter Vista’s directed-verdict motion on the basis that Dodson and the Drain Estate had failed to prove that Charter Vista’s actions were the proximate cause of Dodson’s injuries and Drain’s death. The jury awarded Dodson and the Drain Estate $802,000 against the Estate of Harrison.

I. Directed Verdict

Dodson and the Drain Estate first contend that the trial court erred in converting the appellants’ case from an ordinary negligence case to a medical negligence case. They point to the fact that the trial court entered an order denying Charter Vista’s summary-judgment motion before trial and that the trial court had specifically referred to the hospital’s duty of ordinary care during discussions surrounding that order. Finally, they maintain that the trial court’s pretrial order was an order under Arkansas Civil Procedure Rule 16, which controlled the course of the ensuing trial.

We disagree, as an initial matter, that the trial court’s order ofMarch 11, 1997, was a Rule 16 order. Rather, the order primarily (a) denied Charter Vista’s motion for summary judgment against Dodson and the Drain Estate, (b) granted Charter Vista’s motion to dismiss against the Harrison Estate, and (c) denied the Harrison Estate’s motion for summary judgment against Dodson and the Drain Estate. The order also dealt with a continuance motion and motion in limine. A Rule 16 order is categorically different. It generally concerns stipulations and agreements by the parties which narrow the issues, exhibits, and witnesses for trial. This aspect of the appellant’s argument is meritless.

The crux of the argument made by Dodson and the Drain Estate is that they pled ordinary negligence against Charter Vista and that the trial court only alluded to a duty of ordinary care owed by Charter Vista prior to trial. They add that the case was tried as an ordinary negligence case. Again, we disagree. Medical negligence permeates this case. Indeed, in their complaint, Dodson and the Drain Estate allege negligence and proximate causation against Charter Vista which is grounded on the hospital-patient relationship between Charter Vista and Harrison. For example, the complaint alleges:

• Charter Vista should have known about Harrison’s suicide plan.
• Charter Vista failed to get either the MAT or the Fayetteville police to check on its patient.
• Charter Vista encouraged Harrison to drive when they should have known of her suicide plan.
• Charter Vista had no policies in place to assess when a patient may pose a danger to herself or third parties.

All of these allegations are centered on a breakdown in medical care between the hospital and its patient.

It is true that the trial court made a reference to the duty of ordinary care owed by Charter Vista to Harrison before trial. That was in the context of assessing Charter Vista’s motion for summary judgment and deciding whether a special relationship existed between the hospital and Harrison under Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983), to control Harrison’s conduct with respect to others. The trial court found that there was a special relationship and that a duty was owed, but we do not view that finding as determinative of whether this is a medical negligence case.

Dodson and the Drain Estate claim, nevertheless, that they were misled by the trial court into believing this was an ordinary negligence case and were caught up short during the trial when they became aware that the medical negligence burden of proof had to be met. We fail to see how this could be the case. Our Medical Malpractice Act defines “medical injury” expansively:

“Medical injury” or “injury” means any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.

Ark. Code Ann. § 16-114-201(3) (1987). This court has acknowledged the broad scope of this definition. See, e.g., Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998); First Comm. Trust Co. v. Rank, 323 Ark. 390, 915 S.W.2d 262 (1996). Surely, failure to diagnose Harrison as suicidal and to provide proper services to prevent her death lay at the heart of the appellants’ cause of action.

But in addition to that, the facts belie that Dodson and the Drain Estate were misled when told that this was a medical negligence case. Dr. Alan Tuft, a psychologist who practices in Rogers, was called as an expert witness for the Drain Estate as part of its case in chief. After being qualified as an expert, Dr. Tuft explained that he had reviewed the records and depositions in this case and then answered affirmatively when he was asked if the opinions that he was going to give would be based on the standard of care in this, or a similar, locality. That is precisely what an expert witness testifies to in order to meet the burden of proof in a medical malpractice case. See Ark. Code Ann. § 16-114-206(a) (1987). Added to this is the fact that during the direct examination of Dr. Tuft, the trial court conducted an in camera discussion where the trial court specifically stated that Charter Vista had been sued for a medical injury.

We turn then to the question of whether Dodson and the Drain Estate presented substantial evidence so as to avoid a directed verdict against them. When considering a motion for directed verdict made by a defendant, the plaintiff s evidence, and all reasonable inferences therefrom, are examined in the light most favorable to the plaintiff. See Avery v. Ward, 326 Ark. 829, 934 S.W.2d 516 (1996). A directed-verdict motion should be granted only if the evidence would be so insubstantial as to require a jury verdict for that party to be set aside; evidence is insubstantial when it is not of sufficient force or character to compel a conclusion one way or the other, or if it does not pass beyond mere suspicion or conjecture. See City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995); St. Paul Fire & Marine Ins. Co. v. Brady, 319 Ark. 301, 891 S.W.2d 351 (1995).

To establish a prima facie case of negligence, a plaintiff must show that damages were sustained, that the defendant breached the standard of care, and that the defendant’s actions were the proximate cause of the damages. See Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). Proximate cause is “that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Union Pac. R.R. Co. v. Sharp, supra; Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996). Thus, a plaintiff must show causation in fact and legal causation. When there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. See McGraw v. Weeks, 326 Ark. 285, 930 S.W.2d 365 (1996). But proximate causation becomes a question of law if reasonable minds could not differ as to the result. See Union Pac. R.R. Co. v. Sharp, supra; Tyson Foods Inc. v. Adams, 326 Ark. 300, 930 S.W.2d 374 (1996).

The burden of proof for a plaintiff in a medical malpractice case is fixed by statute. See Ark. Code Ann. § 16-114-206(a) (1987). The statute requires that in any action for a medical injury, expert testimony is necessary regarding the skill and learning possessed and used by medical care providers engaged in that speciality in the same or similar locality. Thus, it was incumbent on Dr. Tuft to offer evidence in the form of his opinion that Charter Vista had violated the standard of care for medical care providers in the locality for the speciality involved. We agree with the trial court that Dr. Tuft’s opinions failed to cross this essential bridge. Examples of Dr. Tuft’s answers during cross-examination by Charter Vista’s counsel follow:

Attorney: Okay. It’s fair to say, is it not, Dr. Tuft, that you are not in any way critical of the way in which Julie Minkel did her job on the night of June the 23rd, 1994?
Dr. Tuft: That is correct.
Attorney: She didn’t do anything wrong, did she?
Dr. Tuft: Not that I could tell from her deposition, no.
Attorney: She handled the phone call very well and very professionally, didn’t she?
Dr. Tuft: As best I can tell, yes.
Attorney: It was perfectly proper and reasonable for Julie Minkel to agree to meet Tammy Harrison at Charter Vista Hospital that night, wasn’t it?
Dr. Tuft: As best I can tell, yes.
Attorney: And it’s perfectly reasonable for Julie Minkel to not be concerned about Tammy Harrison driving to Charter Vista Hospital that night, isn’t it?
Dr. Tuft: As best as I can tell.
Attorney: You are not critical in any way, are you, Dr. Tuft, of Dr. Dollins in what he may have done in regard to his treatment of Tammy Harrison?
Dr. Tuft: The only area, and again I do not know who or how it should have been dealt with, is in the area of availability of information back and forth between the various people at Charter, between each other. But as far as his treatment per se, no, I am not critical of it.
Attorney: Okay. As far as you can tell in reviewing the records, he offered her excellent treatment, didn’t he, at all times?
Dr. Tuft: Yes sir.
Attorney: Let me go back to the question I just asked you a minute ago. And I think you hedged a little on me, and that’s why I want to come back to this. I want to nail down something with certainty. Are you, or are you not, in any way critical of Dr. Dollins insofar as his treatment of Tammy Harrison at any time, either while she was in the hospital or during the three months or so after she was out of the hospital?
Dr. Tuft: No.
Attorney: You’re not critical.
Dr. Tuft: That is correct.
Attorney: Dr. Tuft, what it comes down to on the night of June 23rd is Julie Mihkel assessing Tammy Harrison over the phone and then making a decision on what she should do; right?
Dr. Tuft: That is correct.
Attorney: And the decision for further assessment of Tammy Harrison at the hospital was a good decision, wasn’t it?
Dr. Tuft: Seemed to be. Yes.
Attorney: That’s what you would’ve done had you been in her shoes, isn’t it?
Dr. Tuft: Most probably.
Attorney: In reality, Doctor, it’s your opinion, is it not, that Charter Vista Hospital provided good and professional care, both on an inpatient and outpatient basis to Tammy Harrison?
Dr. Tuft: I beheve that in general they did, yes. With the one area of exception and that is the flow of information between the people treating her.

Thus, Dr. Tuft had no problem with the services rendered to Harrison by Charter Vista. The one area where Dr. Tuft had a question related to how the medical information about Harrison was passed among Charter Vista personnel.

On the point of record circulation, it was the responsibility of Dodson and the Drain Estate to offer evidence that better sharing of records would have prevented the accident. This, they failed to do. Juliette Minkel, then a licensed associate counselor with MAT, spoke with Harrison for 45 minutes and was fully apprised of her condition vis-a-vis suicide ideation. Dr. Dollins, of course, had been her treating physician. Dr. Tuft in no way testified that providing additional information contained in other records to either one of these people would have prevented the accident. Indeed, he was not critical of the way either person handled the matter.

Again, evidence must rise above mere conjecture and suspicion to be substantial. See City of Little Rock v. Cameron, supra. We conclude that Dr. Tuft’s opinion testimony failed to meet this necessary criterion.

II. New-Trial Motion

In a similar vein, Dodson and the Drain Estate maintain that they were denied a fair trial due to surprise and procedural irregularities. This, again, related to their burden of proof and whether this was a medical negligence case. They moved for a new trial under Ark. R. Civ. P. 59(a)(1) and (a)(3). For reasons already stated, we disagree that the appellants were either surprised or that procedural irregularities afflicted the trial of this matter.

It is true that the trial court stated at the new-trial hearing that he wished he had never used the term “ordinary care” as part of the ruling on Charter Vista’s motion for summary judgment. But that is a far cry from an admission that the appellants were misled or surprised concerning the fact that a medical injury was involved or what comprised their burden of proof.

The trial court did not abuse its discretion in denying the motion for a new trial. See New Prospect Drilling Co. v. First Comm. Trust, 332 Ark. 466, 966 S.W.2d 233 (1998).

III. Statute of Non-Claim

We turn next to the cross-appeal by the Harrison Estate which relates to the trial court’s denial of the Estate’s motion for summary judgment. The Estate’s motion was premised on the Statute of Non-Claim and the failure of Dodson and the Drain Estate to file a claim against the Estate within the requisite six-month period. The trial court denied the motion. We hold that the trial court erred in this regard, and we reverse on cross-appeal.

In 1989, the General Assembly amended the limitation period for filing claims against a probate estate. See 1989 Ark. Acts 929 (codified at Ark. Code Ann. § 28-50-101 (Supp. 1997)). Under Act 929, the last sentence was added to the Statute of Non-Claim, which now reads as follows:

(a) Statute of Nonclaim. Except as provided in §§ 28-50-102 and 28-50-110, all claims against a decedent’s estate, other than expenses of administration and claims of the United States which, under valid laws of the United States, are not barrable by a statute of nonclaim, but including claims of a state or territory of the United States and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, shall be forever barred as against the estate, the personal representative, or the heirs and devisees of the decedent, unless verified to the personal representative or filed with the court within three (3) months after the date of the first publication of notice to creditors. However, claims for injury or death caused by the negligence of the decedent shall be filed within six (6) months from the date of first publication of the notice, or they shall be forever barred and pre- . eluded from any benefit in the estate.

Ark. Code Ann. § 28-50-101(a) (Supp. 1997).

With regard to the tort claims, section (f) of § 28-50-101 was unchanged by Act 929 :

(f) Certain Tort Claims Not Affected. Notwithstanding the foregoing provision relating to the time for filing claims against an estate, or any other provisions of this code, a tort claim or tort action against the estate of a deceased tortfeasor, to the extent of any recovery which will be satisfied from liability insurance or from uninsured motorist insurance coverage and which will not use, consume, or deplete any assets of the decedent’s estate, may be brought within the limitation period otherwise provided for the tort action. No recovery against the tortfeasor’s estate shall use, consume, diminish, or deplete the assets of the decedent’s estate, and any recovery shall not affect the distribution of the assets of the estate to the heirs, next of kin, legatees, or devisees of the deceased tortfeasor unless a claim is filed in the manner and within the time provided by this code for filing claims against the estate.

Ark. Code Ann. § 28-50-101(f) (Supp. 1997).

The appellants did not file a claim against the Harrison Estate relating to their injury and death but rather filed their negligence actions against the Estate in circuit court. Dodson did, however, serve the administrator of the Harrison Estate with her complaint in circuit court within 90 days of the first publication of notice. In response, the Harrison Estate interpled the policy limits of $50,000 from Harrison’s liability carrier, Progressive Insurance company. Ruling on the Harrison Estate’s motion from the bench, the trial court stated that the Statute of Non-Claim only required that notice be given to the estate’s administrator and did not require the actual filing of a claim against the Estate. The statute was satisfied, according to the trial court, by filing the negligence complaint in circuit court and by serving the Estate. We disagree.

In interpreting statutes, we give the words their plain, customary, and ordinary meaning. See Leathers v. Cotton, 332 Ark. 49, 961 S.W.2d 32 (1998); Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998). The Statute of Non-Claim requires that ordinarily claims against an estate must either be verified to the personal representative or filed- with the probate court within three months of the first publication of notice. Act 929 of 1989 added a sentence to the statute, and the meaning of the sentence is absolutely clear. Injury and death claims must be filed with the estate within six months from the date of the first publication of notice in order for the probate estate to be liable. Otherwise, they are barred. The General Assembly obviously wanted to make certain that claims for injury and death were actually filed with the probate court within the sixth-month period to give a clear cut off date for such claims and to enable the personal representative to close the estate, if feasible. Tort claims under § 28-50-101 (f), however, which will be satisfied from liability insurance and not estate assets may be brought within the limitation period for torts.

Clearly, no claim was filed in the Harrison Estate for Dodson’s injury or Drain’s death. Because of this, those claims against the estate’s assets which are represented by the complaints in tort and the judgment are barred. The judgment in this case, however, may be partially satisfied from the interpled proceeds from the liability policy. We reverse the summary judgment order on this point and remand for an order consistent with this opinion.

Affirmed in part. Reversed in part and remanded.

Newbern, J., not participating.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting in part. On November 8, 1994, the Estate of Tammy Harrison gave its first publication of notice of appointment of personal representative. Under Ark. Code Ann. § 28-40-111 (a)(4) (Supp. 1997), a copy of the notice must also be served upon all unpaid creditors whose names, status as creditors, and addresses are known to or reasonably ascertainable by the personal representative. The burden of proof of any issue as to whether a creditor was known to or reasonably ascertainable by the personal representative shall be upon the creditor claiming entitlement to such actual notice. Id. Moreover, § 28-40-111 (a)(1) provides that any claim for injury or death caused by the negligence of the decedent shall be filed within six months from the first publication date. See also Ark. Code Arm. § 28-50-101 (Supp. 1997). Here, that would be six months from November 8, 1994.

Diann Dodson filed her negligence suit against the Harrison Estate on December 14, 1994, or well within the six-month period. On March 9, 1995, the Drain Estate sent its complaint and motion to intervene to the Harrison Estate’s counsel, which was in compliance with the Harrison Estate’s published notice. The Harrison Estate offered no objection to the Drain Estate’s intervention. Apparently, the majority court holds that Dodson and Drain were not entitled to actual notice because they were not ascertainable as unpaid creditors, and that Dodson’s and Drain’s negligence claims were untimely because they were not filed in probate court. I disagree with both holdings.

Ark. Code Ann. §§ 28-40-114 and 28-50-101 (1987 and Supp. 1997, respectively) provide that persons with negligence claims must file them within six months from the first publication-of-notice date, and like the trial court, I believe Dodson and Drain complied with those provisions. In other words, the Harrison Estate was fully apprised of Dodson’s and Drain’s claims. The fact that the two claims were not filed in probate court, as such, is of no consequence, especially since those pertinent statutes fail to require those negligence claims to be filed in probate court. After all, probate courts act with limited authority, and in this situation, the statutes only provide that injured persons file their negligence claims within six months from the date of first publication, which Dodson and Drain did. See Estate of Wood v. Arkansas Dep’t of Hmn. Serv., 319 Ark. 697, 894 S.W.2d 573 (1995); In Re: Estate of Jones, 317 Ark. 606, 879 S.W.2d 433 (1994).

In addition, I note that, from the time the Harrison Estate was opened, the Estate was fully aware of Harrison’s alleged negligence that caused Dodson’s injury and Drain’s death. In my view, Dodson and Drain’s Estate should have been served with actual notice that the Harrison Estate had been opened. See Ark. Code Ann. § 28-40-111 (a) (4). In any event, all three of these parties had notice and information regarding their respective claims and defenses well within the six-month period provided for under §§ 28-40-111 and 28-50-101. As a consequence, the purpose of Arkansas’s probate-notice provisions were met, and I believe it is unfair to cut short Dodson’s and Drain’s negligence claims by adding the words “probate court” into the statutory provisions that only read to say such claims “shall be filed” within the required six-month period.