text:
    Robert BREWINGTON v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY and L.T. GATES, M.D.
    84-312
    687 S.W.2d 838
    Supreme Court of Arkansas
    Opinion delivered April 15, 1985
    [Rehearing denied May 20, 1985.]

      Fletcher Long, Jr., P.A., by: Fletcher Long, Jr., for appellant.

      Rieves, Shelton &r Mayton, by: Elton A. Rieves, III; and Friday, Eldredge ir Clark, by: Laura A. Hensley, for appellees.
   John I. Purtle, Justice.

This is an appeal from a summary judgment rendered by the trial court against the appellant on his complaint for damages allegedly resulting from medical malpractice by appellee L. T. Gates, M.D. The judgment was granted upon the submission of affidavits and a counteraffidavit. We agree with the appellant that summary judgment should not have been granted under the circumstances of this case.

The appellant was involved in an airplane crash on July 6, 1980. He did not consult a physician until July 13, 1980. On that date he went to the Crittenden Memorial Hospital in West Memphis, Arkansas, for the purpose of obtaining medical attention and treatment. Dr. L. T. Gates was the physician who examined the appellant and took a statement of appellant’s medical history. Some family members were present at the time of this examination. Dr. Gates determined that appellant had been drinking alcohol and decided that he was drunk. In his affidavit in support of the motion for summary judgment, Dr. Gates stated that in this case he could not differentiate between symptoms related to appellant’s head injury and symptoms related to alcohol. He recommended that appellant be admitted and observed. The family, according to Dr. Gates, prevailed upon him to transfer the appellant to another hospital. Appellant’s affidavit states that Dr. Gates decided he was drunk and refused treatment for that reason. Appellant then entered Forrest Memorial Hospital where his problem was at least partially diagnosed. He was later sent by ambulance to the Veterans Hospital in Memphis, Tennessee. The Veterans Hospital diagnosed his problem as a subarachnoid hemorrhage and an anterior cerebral aneurysm. He subsequently underwent surgery as part of the treatment for his injuries. A second affidavit in support of the motion for summary judgment was executed by Dr. McPhail. The appellant’s affidavit also denied the truthfulness of the affidavits executed by Drs. Gates and McPhail.

Although appellant enumerates several points for reversal all of them essentially challenge the sufficiency of the affidavits or allege that appellant’s affidavit was sufficient to overcome the affidavits in support of the motion for summary judgment.

The matter to be decided by this court is whether the appellees’ affidavits entitled them to summary judgment in spite of the counter affidavit submitted by the appellant. It is a well established rule of law that a summary judgment, being an extreme remedy, is only proper when the pleadings and proof show that no genuine issue of a material fact exists and the moving party is as a matter of law entitled to judgment. Talley v. MFA Mutual Ins. Co., 273 Ark. 269,620 S.W.2d 260 (1981). In medical malpractiace suits it is necessary in some cases to have expert medical testimony. In other cases it is not necessary because the results of the treatment, or failure to treat, are of such character as to warrant inferences of negligence from the testimony of laymen, or such knowledge that is within the experience of the jurors themselves. Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944). It was the duty of the appellees to show that no genuine issue of fact could possibly be made without expert testimony. Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970). In Lanier we held that when the applicable standard of care is not a matter of common knowledge the jury must have the assistance of expert witnesses in coming to a conclusion of the issue of negligence.

Each affidavit on behalf of the appellees stated that medical and scientific matters relating to this case are not commonly known and must be proved by medical experts. Each affiant stated that he was a specialist in general medicine. Neither physician stated the nature and extent of appellant’s complaints at the time he was examined by them. Neither affidavit contains any specifics of what would be a proper diagnostic procedure in cases such as this. The affidavits also contained allegations generally denying that Dr. Gates was negligent. Conclusory allegations are insufficient to support the motion for summary judgment in this case. Neither physician made diagnostic findings or gave the standard of care, skill, and learning ordinarily used by physicians in such practice in West Memphis, Arkansas.

The appellant’s affidavit is generally hearsay. Although other witnesses may have been able to execute an affidavit reciting these facts, as to the appellant they were hearsay. We disregard appellant’s affidavit in reaching the decision in this case.

In summary judgment matters we look to ARCP Rule 56(e), which requires that proof offered to meet a properly supported motion for summary judgment must set forth specific facts showing that there is a genuine issue for trial. The facts stated in the affidavit must be admissible in evidence. Affidavits of general denial are insufficient to support a motion for summary judgment. Stevens v. Barnard, 512 F.2d 876 (10th Cir. 1975).

We are of the opinion that the affidavits by the two physicians in this case amount to general denials of negligence and are therefore not sufficient to sustain the motion for summary judgment.

Reversed.


source: Caselaw Access Project

author: John I. Purtle, Justice. George Rose Smith, Justice,

license: Public Domain

text:
    Bill CLINTON, Governor, et al. v. REHAB HOSPITAL SERVICES CORP., et al.
    84-321
    688 S.W.2d 272
    Supreme Court of Arkansas
    Opinion delivered April 15, 1985

      George Harper, Asst. Att’y Gen., and Pickens, McLarty & Watson, by James A. McLarty, for appellants.

      Hilburn, Calhoon, Forster, Harper ir Pruniski, Ltd,., by: Sam Hilburn and Janet James Robb, for appellee.
   John I. Purtle, Justice.

The Pulaski County Chancery Court issued an injunction against the appellants on the grounds that they had not timely sought a review of an agency ruling. On appeal it is successfully argued that the trial court erred in granting appellees injunctive relief.

Rehab Hospital Service Corporation filed an application for the issuance of a certificate of need (CON) with the State Health Planning and Development Agency (Agency) for the purpose of constructing a rehabilitation hospital in Jonesboro, Arkansas. Arkansas law requires CON approval from the Agency prior to construction of a new facility such as the one appellees desired to build. The administrative process requires that an application for a CON first be reviewed by one of four Health Systems Agencies. In this case the review was made by Delta-Hills Health Systems Agency (Delta) and the CON was denied. The recommendation was overruled by Joel North, Director of the Agency. Delta’s request for reconsideration was denied on May 2, 1984. North informed Delta that a request for review of the Agency’s decision could be filed no later than June 4,1984. A request for review was filed by Delta on June 4,1984. Rehab then filed its petition for injunction alleging that the request for review was not timely filed. The chancellor granted the injunction. This case reaches us from the issuance of an injunction, but it is more in the nature of an appeal from the decision of an administrative agency. Although chancery courts are not proper courts to review the decisions of administrative agencies, we accept this case because of the need for an immediate appellate review and because we have before us an appeal from the circuit court on the same application for a CON.

The Agency rule at issue reads in part: “Any decision of the State Agency to issue, deny, or withdraw a certificate of need. . . will, upon request... be reviewed by an agency of the state. . . designated by the Governor. . .To be effective, the request [for review] must be received . . . within thirty days of the State Agency decision. . . .”

An attorney with the Agency computed the deadline for filing the request for review and caused the date to be sent to Delta by letter dated May 2, 1984. Thirty days from the date of the decision would have been June 1, 1984, which was a Friday. In computing the deadline, the Agency allowed one day for delivery of the letter, which would have caused the deadline to fall on Saturday, June 2,1984. The next working day would have been Monday, June 4, 1984, the date the request was filed.

The only question presented for our consideration is whether the Agency properly extended the time within which to file for review. Testimony of Agency employees indicated it was the custom to allow mail delivery time in addition to the 30 day limit stated in the Agency rules and ARCP Rule 6. An agency or department interpretation of its own rules and regulations is not binding upon the courts but it is highly persuasive. Brawley School District No. 38 v. Kight, 206 Ark. 87, 173 S.W.2d 125 (1943). In Mohawk Rubber Co. v. Buford, 259 Ark. 614,535 S.W.2d 819 (1976) we said that “where the decision is based upon the application of the commission’s own rules, we must also view it in deference to the commission’s treatment of these rules. . . . Any reasonable construction or interpretation given such rules is certainly entitled to great weight upon judicial review.. . .” An administrative agency’s interpretation of its own rule is controlling unless plainly erroneous or inconsistent. Arkansas Savings and Loan Association Board v. Grand Prairie Savings and Loan Association, 261 Ark. 247, 547 S.W.2d 109 (1977). “We must accept the agency’s interpretation, if it is reasonable in terms of the words of the regulation and the purposes of the statute, even though, as an original matter, we might have reached a different conclusion.”Baker v. Heckler, 730 F.2d 1147 (8th Cir. 1984). It is basic that administrative procedure requires that an agency be given the opportunity to address a question before resorting to the courts. Truck Transport, Inc. v. Miller Transporters, Inc., 285 Ark. 172, 685 S.W.2d 798 (1985).

When we give due deference to the Agency’s interpretation of. its own rules and consider the purpose of the review, we do not find that the slight variance of one day was detrimental to the purposes of the law or the rights of the parties. Therefore, we hold that Delta was not in error in relying on the deadline as computed and communicated to the parties a month before the date fixed by the Agency.

The injunction is dissolved and the case remanded with directions to allow a hearing on Delta’s request for review.

Reversed.

George Rose Smith, J., concurs in the results.

George Rose Smith, Justice,

concurring. Under our law a court of equity has no jurisdiction in a case of this kind. The Constitution of 1874, Art. 7, § 14, vests in the circuit court superintending control and appellate jurisdiction over inferior courts. Chancery courts have the power to grant injunctive relief in cases within their jurisdiction, but every request for an injunction is not necessarily proper. “That injunctive relief of a court of equity cannot be invoked when there is an adequate remedy at law is so well settled that the mere statement of the rule is sufficient.” Special Sch. Dist. No. 50 v. Deason, 183 Ark. 102, 34 S.W.2d 1084 (1931).

In truth, the chancery court’s injunction in the case at hand was really a writ of prohibition, regardless of its form. One legislative attempt was made to confer on chancery courts the power to issue writs of prohibition, but that part of the statute was unconstitutional because the 1874 jurisdiction of courts of equity cannot be enlarged. Ark. Stat. Ann. § 33-101 (Repl. 1962); Jeffery v. Jackson County Court, 251 Ark. 1071, 476 S.W.2d 805 (1972). The application for an injunction should, under our law, have been dismissed by the trial court in the present case.


author: Robert H. Dudley, Justice.

text:
    REHAB HOSPITAL SERVICES CORP. v. DELTA-HILLS HEALTH SYSTEMS AGENCY, INC.; and Frances FLENER, Individually and as Executive Director of Delta-Hills Health Systems Agency, Inc.
    85-2
    687 S.W.2d 840
    Supreme Court of Arkansas
    Opinion delivered April 15, 1985

      Hilburn, Calhoon, Forster, Harper & Pruniski, Ltd., by: Sam Hilburn and Janet James Robb, for appellant.

      Pickens, McLarty ir Watson, by: James A. McLarty, for appellee.
   Robert H. Dudley, Justice.

The Arkansas State Health Planning and Development Agency granted a certificate of need to appellant, Rehab Hospital Services Corporation, to construct a hospital in Jonesboro. Frances Flener, the Executive Director of appellee, Delta-Hills Health Systems Agency, the regional health planning agency for the Jonesboro area, filed a motion for reconsideration after conducting a telephone poll of most of the Executive Committee of the appellee’s board. Appellant filed suit for a declaratory judgment, and argued that the motion for reconsideration should be voided because the appellee, in conducting a telephone poll, had not abided by the Freedom of Information Act. Ark. Stat. Ann. §§ 12-2801 through 2807. The trial court refused to void the motion for reconsideration. We affirm. Jurisdiction to interpret the Freedom of Information Act is in this Court. S.Ct. Rule 29(1 )(c).

Declaratory judgment actions are intended to supplement rather than replace ordinary causes of action. Mid-State Const. Co. v. Means, 245 Ark. 691, 434 S.W.2d 292 (1968). As such, the parties are required to exhaust administrative remedies prior to seeking a declartory judgment.

It seems to be now a recognized doctrine that requires administrative relief to be sought before resorting to declaratory procedure, wherever administrative relief is afforded and this requirement is not one merely requiring the initiation of administrative procedure, but the administrative procedure must be pursued to its final conclusion before resort may be had to the court for declaratory relief.

W. Anderson, Actions for Declaratory Judgments, § 204, at 433 (1951). This court likewise requires exhaustion of administrative remedies before resorting to an action for declaratory judgment. See Ragon v. Great American Indemnity Co., 224 Ark. 387, 273 S.W.2d 524 (1954).

A basic rule of administrative procedure requires that the agency be given the opportunity to address a question before resorting to the courts. Truck Transport, Inc. v. Miller Transporters, Inc., 285 Ark. 172, 685 S.W.2d 798 (1985). Furthermore, the procedure of the agency before us provides for further administrative review of the agency’s decision. S.H.P.D.A. Rule 11(13). By filing the declaratory judgment action, the appellant circumvented the established agency appeals procedure. Under most circumstances we would dismiss the appeal without reaching the merits of the case. However, we choose to decide the case on its merits because it involves the interpretation of the Freedom of Information Act, a matter of significant public interest.

The trial court was in error in holding that appellee, Delta-Hills, was not subject to the Freedom of Information Act. Appellee is incorporated as a non-profit regional health planning corporation under the requirements of federal law. 42 U.S.C. § 3001-l(b). Its function is to assist the Arkansas Health Planning and Development Agency in the regional review of proposed state health systems’ changes. An indication of the public purpose served by appellee is demonstrated by a section of the act which mandates the creation of appellee and provides that adequate public notice must be given and that business must be conducted in public meetings. 42 U.S.C. § 3001-l(b)(3)(B)(viii). The primary source of funding for the appellee is the federal government. The Freedom of Information Act applies to all organizations of the State supported wholly or in part by public funds, except as otherwise specifically provided by law. Delta-Hills is not excepted by law, so it is subject to the requirements of the act. Since there was no emergency exception involved, and no emergency notice to the press, the appellee violated the terms of § 12-2805 of the Freedom of Information Act.

The most significant issue in this case is what remedies, if any, are appropriate, other than the express statutory remedies, when a violation of the act occurs. The act expressly establishes criminal penalties for willful violations of the statute, Ark. Stat. Ann. § 12-2807, and a mechanism by which one denied rights under the act may challenge that denial. Ark. Stat. Ann. § 12-2806. However, appellant chose not to bring the matter to the attention of appellee and does not seek an injunction against future similar telephone polls by appellee. Appellant seeks only judicial invalidation of the motion for reconsideration. Thus, it seeks to use the Freedom of Information Act solely to mandate the result of a meeting.

The last paragraph of § 12-2805 provides that when a public entity fails to reconvene in public session and ratify the matter, after arriving at a decision in executive session, it shall not be legal. However, that section is not applicable to the facts of this case. Here, there was no meeting in executive session. Instead, there was a telephone poll of those members of the executive committee who could be reached over a three day period. Unlike an executive meeting, without later public ratification, this telephone poll, if conducted with proper notice, and if conducted with telephones available to the public and press, could have been an acceptable type of open meeting. Therefore, the act does not expressly provide that the meeting “shall not be legal.”

Some states hold that when the “public meeting” statute sets out specific remedies, the courts are limited to those remedies set out. For a listing of those jurisdictions see Annotation - Statutes - Proceedings Open to Public, 38 A.L.R.3d 1070, § 7. We decline to take such a limited approach but instead, in order to effectuate the laudable public purposes of the act, hold that some actions taken in violation of the requirements of the act may be voidable. It will be necessary for us to develop this law on invalidation on a case-by-case basis.

While we consider voidability a valid option to enforcement of the Freedom of Information Act, we decline to invoke it in this case for the reasons set out below.

First, there has been no showing that appellee’s board members knowingly violated the law by participating in the telephone poll and the appellant did not bring it to their attention. The agency was never given the opportunity to address the issue. Instead, appellant circumvented the agency and directly filed suit asking for invalidation. If we allowed invalidation on that basis, the potential for harm would be great. It would mean that any person who did not like a resolution, ordinance, rule, or regulation passed since the inception of the act could have it invalidated, under the subterfuge of freedom of information, because of some unintentional past violation which had never been brought to the attention of the governmental entity. Such an interpretation would create a substantial amount of undesirable uncertainty. See Elmer v. Board of Zoning Adjustment of Boston, 343 Mass. 24, 176 N.E.2d 16 (1961); Open Meeting Statutes: The Press Fights for the “Right to Know", 75 Harv. L. Rev. 1199, at 1214 (1962). It is only in the event invalidation is sought that we require that the board or agency be given the opportunity to address the issue. The opportunity to address the issue does not necessarily have to be given to the agency when the public or the press seeks only those remedies expressly set out in the act. See Arkansas Gazette v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975); Mayor, etc. of El Dorado v. El Dorado Broadcasting, 260 Ark. 821, 544 S.W.2d 206(1976).

Second, the telephone poll was not necessary to authorize the motion for reconsideration. The full board had already met in an open meeting and voted to contest the granting of the certificate of need. After that, there was no need for the board, or any committee, to meet and vote on each step of the adjudication. It would be unrealistic and intolerable to hold that every step taken on behalf of a board in a lawsuit or adjudication must be approved at a public meeting. If such were required, counsel could not even perform those routine tasks such as preserving an appeal by timely filing the jurisdictional notice of appeal without a public meeting of the board. We decline to take such an unreasonable approach. Accord: Florida Parole and Probation Comm. v. Thomas, 364 So.2d 480 (Fla. App. 1978).

Third, the appellant does not seek to protect the public’s right to information, it seeks invalidation solely to build a hospital.

Affirmed.


author: Steele Hays, Justice. DAVID NEWBERN, Justice,

text:
    Bob DAVIS, II v. Debra Diane Wheaton DAVIS
    84-299
    687 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered April 15, 1985

      Wright if Chaney, P.A., by: Donald P. Chaney, Jr., for appellant.

      B. W. Sanders, P.A., for appellee.
   Steele Hays, Justice.

Bob Davis appeals from an order of the Chancellor of Hot Spring County finding that Arkansas has no jurisdiction to decide a custody dispute between Davis and his former wife, Debra, involving their son, Bradley. We agree with the appellant that under the Uniform Child Custody Jurisdiction Act the Chancellor should have heard the case on its merits. Accordingly, we reverse and remand.

Bob and Debra Davis are longtime residents of Arkansas, with ties to Clark and Hot Spring Counties. They married in Clark County and Bradley was born there on July 5, 1977. They seem to have lived at times in Clark County and in the neighboring county of Hot Spring, where Debra Davis owned a mobile home on lands belonging to her parents.

In September of 1980 Bob Davis went to Texas to work as a welder. Debra joined him later, leaving Bradley in Hot Spring County with her parents. Bradley came still later and lived there just over a year. In March of 1982 a decree of divorce was entered in the District Court of Harris County, Texas, awarding a divorce and custody of Bradley to Debra Davis.

Some months after the divorce Debra came back to Arkansas with Bradley and resumed habitation in Hot Spring County. Bob Davis also returned to Arkansas and neither party has had any further residence in Texas. After Bob’s return he lived in Arkadelphia and, by agreement between the parties, Bradley spent weekends and summers with his father on a.regular basis.

Debra began selling real estate and in April, 1983, she went to Florida, where opportunities seemed brighter, again leaving Bradley in Arkansas with her parents. In the fall Debra was back in Arkansas hoping to find work. Bob told her he would oppose any effort to remove Bradley to Florida, if that was her aim. Evidently this conversation, which occurred on October 8, 1983, alarmed Debra and she suddenly removed Bradley from school and left for Florida “within the hour.”

Bob Davis immediately petitioned the Chancery Court of Clark County for a change of custody and the Chancellor issued a temporary order for Bradley’s return to Arkansas, which a Florida court honored. Bradley was returned to Arkansas where he remained until December 6, 1983, when the Clark Chancery Court held a hearing in the matter. There is some indication from the record that Debra Davis, while objecting generally to jurisdiction in Arkansas, argued that as between Clark and Hot Spring County, venue lay in Hot Spring County. At any rate, the Chancellor determined that Hot Spring County had more significant connections with the family and ordered the proceedings transferred.

When the case came before the Chancellor of Hot Spring County in January, 1984, he held there was no jurisdiction in Hot Spring County and attempted to transfer the case back to Clark County. With the entry of that order, Bob Davis moved the Clark Chancellor to reconsider his original order of transfer, which was refused. Davis then filed a new petition in Hot Spring County on March 12,1984 and it, too, was dismissed by the Chancellor for lack of jurisdiction in Arkansas. On appeal, that order is reversed.

The basic purposes of the Uniform Child Custody Jurisdiction Act are to provide a forum with the closest connection to the child and his family, to deter the abduction and shifting of children from state to state, and to promote interstate cooperation in adjudicating custody matters. Other purposes stated in the act are to “discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child,” and to discourage the “unilateral removal of children undertaken to obtain custody awards.” Ark. Stat. Ann. § 34-2701 (Supp. 1983). The frustration of most of the goals of the act is demonstrated to a significant degree by this record. The parties have litigated in Arkansas and Florida over the past eighteen months without ever getting beyond the threshold issue of jurisdiction to the merits. Bradley has been shuttled between Arkansas and Florida, away from family, school and friends, substituting instability for a relatively stable environment. Bob Davis has been shunted back and forth between the courts of Clark and Hot Spring Counties, Arkansas, as well as Florida, in a futile effort to obtain a custody ruling on the merits of the case.

The Uniform Child Custody Jurisdiction Act recognizes that circumstances can occur after an initial custody award which affect jurisdiction for purposes of modifying custody. A second state, in order to modify the custody award of another state, must first have jurisdiction under one or more of those provisions listed in § 3 (Ark. Stat. Ann. § 34-2703), which include being the “home state,” defined in § 2 as: “The state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months. . .” Plainly, Arkansas was the home state in this cáse. It is undisputed that Bradley had been back in Arkansas for considerably longer than six months when his father filed the original petition in October, 1983. And while appellee suggests that Florida had become the “home state” by March, 1984, when the “new” petition was filed in Hot Spring County, we cannot sustain that contention.

Debra Davis argues thatTexas has retained jurisdiction over Bradley’s custody. She cites Blosser v. Blosser, 2 Ark. App. 37, 616 S.W.2d 29(1981), as being‘‘almost exactly” the situation before us, and Rodriguez v. Saucedo, 3 Ark. App. 43, 621 S.W.2d 874 (1981) and Caskey v. Pickett, 274 Ark. 383, 625 S.W.2d 473 (1981). None of these cases govern. In Caskey v. Pickett, supra, we reversed the trial court’s preemption of jurisdiction over the jurisdiction of Texas, where the parties had lived at the time of the divorce and custody award, and where the custodial parent and child still lived. The noncustodial parent had moved to Arkansas and refused to return the child to the Texas parent at the end of a visitation period, claiming an emergency existed pursuant to § 3 [Ark. Stat. Ann. § 34-2703(a)(3)]. The Chancellor upheld the claim but the finding was not sustained on appeal to this court. We determined that Texas had continuing jurisdiction because of its status as the “home state” of the custodial parent and the child.

In Blosser, the Court of Appeals affirmed an Arkansas Chancellor’s refusal to assume jurisdiction under the act on the petition of a father who had. wrongfully removed the child from Oklahoma for almost a year to prevent the enforcement of an Oklahoma custody order. A similar wrongful removal of the child occurred in Rodriguez, supra. Thus, in Blosser and Rodriguez, one parent, in contravention of § 34-2708(b) attempted to defeat jurisdiction by the wrongful removal of the child and urged Arkansas to assert jurisdiction adverse to the jurisdictional rights of the original states. In both cases the child was wrongfully removed in violation of § 34-2708(b), but in Rodriguez, Texas remained the home state under § 34-2703(a)( 1) and (2), and in B losser, Oklahoma would have also been the home state but for the wrongful removal by the non-custodial parent.

The factual differences between Blosser and Rodriguez, and the case before us need little elaboration. There were no circumstances in this case requiring deference to the jurisdiction of any other state. Arkansas was clearly the home state and there was no improper conduct by one parent in removing the child to this state.

Blosser and Rodriguez were correctly decided, jurisdiction in the foreign states resting firmly on § 34-2708(b) and home state considerations, but reference in both decisions to “continuing jurisdiction” in the state which grants a divorce and awards custody, could lead to confusion. Blosser and Rodriguez referred to§ 34-2706(a), which provides that one state will not exercise jurisdiction under the act if at the time of filing the petition a custody proceeding is pending in another state exercising jurisdiction substantially in conformity with this act unless the first state recognizes that this state is the more appropriate forum. In the setting of those cases, we would be reluctant to label such “continuing jurisdiction” as constituting a “pending proceeding” as contemplated in § 34-2706. If that were so, the court of a state granting custody in the first instance would always retain “pending” jurisdiction for later modification of custody, irrespective of subsequent developments, and even if the parties and children were, as here, living in another state. Hence, the “home sate” provision of § 2(5) of the act [Ark. Stat. Ann. § 34-2702(5)] would have little meaning. See In Re Marriage of Steiner, 89 Cal. App. 3d 363, 152 Cal. Rptr. 612 (1979); Wheeler v. District Court of Denver, 186 Colo. 218, 526 P.2d 658 (1974); Williams v. Zacker, 35 Or. App. 129, 581 P.2d 91 (1978); 96 A.L.R.3d 959; “The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws,” 22 Vand. L. Rev. 1207, at page 1236. Therefore, while Texas in this case had jurisdiction initially over these parties when granting the divorce there is no “pending proceeding” there to qualify that state for jurisdiction over this cause under § 34-2706(b).

For the foregoing reasons we reverse the order of the Hot Spring Chancery Court and remand for further proceedings.

Newbern, J., concurs.

DAVID NEWBERN, Justice,

concurring. This case is before us because there is no venue statute for child custody cases when the defendant neither resides nor is summoned in Arkansas. Until our General Assembly enacts such a statute, these cases will suffer from an uncertainty resulting in delays which can only be detrimental to the stability and other best interests of the child in question. A venue statute for child custody cases is badly needed.

       Ark. Stat. Ann. §§ 34-2701 et seq. (1983 Supp.).

       Affidavit of Debra Davis’s father, R., p. 94.

       Shively, Survey of Family Law, 3 UALR L.J. 223 (1980).

       The National Conference of Commissioners on Uniform State Laws, which approved the Act, has aptly noted that the harmful consequences of such experiences on children cannot be over emphasized. See Uniform Laws Annotated, Master Edition, Vol. 9, p. 112.

       § 34-2708(b). Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. . . .


author: David Newbern, Justice.

text:
    Charles D. RAGLAND, Commissioner of Revenues v. ALLIED TELEPHONE CO. OF ARKANSAS, INC., et al
    84-325
    687 S.W.2d 847
    Supreme Court of Arkansas
    Opinion delivered April 15, 1985

      Timothy J. Leathers, Joseph V. Svoboda, Kelly S. Jennings, John H. Theis, Ann Kell, Joe Morphew, and Michael D. Munns, by: Wayne Zakrzewski, for appellant.

      Lawrence E. Chisenhall, for appellee Yelcot Telephone Co.

      Prince & lvster, for appellees Allied Telephone Co. of Ark., and Allied Utilities Corp.

      Timothy D. Brewer, D. D. Dupre, Gary S. Wann, Ronald D. Young, and Patricia J. Nobles, for Southwestern Bell Telephone Co.
   David Newbern, Justice.

The trial court entered a declaratory judgment to the effect that no sales tax need be collected by the appellees on charges levied for installation of telephones. The applicable statute, Ark. Stat. Ann. § 84-1903(c)(1) (Repl. 1980), says the tax will be levied on “all service and rental charges having any connection with transmission of any message.” The court held the statute was unambiguous but that it should not be interpreted as including the installation charge as taxable because the appellant had acquiesced in the contrary interpretation from the time the statute came into effect, July 1,1941, until 1982. In 1982 the appellant issued a “revenue policy statement” requiring collection of the tax on telephone installations. The statement’s operation was prospective only. As this is a case involving statutory interpretation, our jurisdiction rests upon Arkansas Supreme Court and Court of Appeals Rule 29. 1. c.

The arguments of the appellees are essentially (1) that the trial court should be sustained in its finding that the statute is unambiguous because it has been unambiguously construed for over forty years, and (2) that even if the language of the statute requires the tax to be levied it may be varied by a principle of statutory construction giving weight to the manner in which the statute has been construed by the state official or agency responsible for its implementation.

1. Unambiguity of construction

The appellees contend the trial court’s ruling was that the statute in question here was unambiguous regardless of its language, because it had been construed for over forty years as not requiring the tax. If indeed that was the holding we cannot sustain it. To determine ambiguity or lack of it we must look to statutory language rather than to unambiguous “construction.” The appellees have cited no authority, and we have found none, in which a decision is premised on unambiguity of construction as opposed to unambiguity of statutory language.

2. Construction absent ambiguity

We agree with the trial court that the statute is unambiguous. Its language leaves no doubt the General Assembly intended that all charges levied in rendering telephone service be subject to the tax. Thus, there was no reason to resort to principles of construction. Vault v. Adkisson, 254 Ark. 75, 491 S.W.2d 609 (1973).

The appellees have cited Prewitt v. Warfield, 203 Ark. 137, 156 S.W.2d 238 (1941), for the proposition that principles of statutory construction apply even when a statute is unambiguous. In that case language of no particular statute was found to be ambiguous, but the question was whether a previously enacted statute had been impliedly repealed by a later statute. It thus involved an ambiguity created by conflicting language of two statutes.

The two principal cases relied on by the appellees as permitting construction of statutory language by considering the consistent and long-standing interpretation by the state agency responsible for its implementation are Arkansas Public Service Commission v. Allied Telephone Company, 274 Ark. 478, 625 S.W.2d 515 (1981), and Walnut Grove School District v. County Board of Education, 204 Ark. 354, 162 S.W.2d 64 (1943). It is enough to say of those cases that each properly applied the construction principle urged here because each involved interpretation of ambiguous statutory language.

Reversed.


author: Per Curiam.

text:
    Terry CAMP v. STATE of Arkansas
    687 S.W.2d 133
    Supreme Court of Arkansas
    Opinion delivered April 15, 1985

      John W. Unger, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant has filed a motion for a rule on the clerk.

His attorney, John W. Unger, Jr., has admitted that the record was tendered late as a result of negligence on his part.

Such negligence made in a criminal case is good cause to grant the rule on the clerk. See Per Curiam, In Re: Belated Appeals In Criminal Cases, February 5, 1979, 265 Ark. 964.

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


author: George Rose Smith, Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY v. MID-STATE CONSTRUCTION COMPANY, INC.
    84-300
    688 S.W.2d 278
    Supreme Court of Arkansas
    Opinion delivered April 22, 1985

      Stephany Ann Slagle, for appellant.

      Tom Lienhart, for appellee.
   George Rose Smith, Justice.

This action was brought by the appellant, Southwestern Bell, to recover for damage to its underground cables caused by the appellee, Mid-State Construction Company. Mid-State counterclaimed for the amount of needless expenses incurred as a result of Southwestern Bell’s misrepresentation of the location of the cables and negligent failure to relocate them as promised. The jury awarded Southwestern Bell $216.34 on its complaint and Mid-State $4,110.40 on its counterclaim. Southwestern Bell appeals on the single ground that the verdict against it is not supported by sufficient evidence. Rule 29(1 )(o) brings the case to us.

We cannot reach the merits of the appeal, because the issue was not properly raised below. Counsel did not file a motion for a directed verdict on the counterclaim and instead sought to question the sufficiency of the evidence by a motion for a new trial. That procedure was formerly permissible, but more than a year before the trial we amended Civil Procedure Rule 50(e) to eliminate that method of questioning the opposing party’s proof. The change was desirable, for if a party cannot produce substantial evidence to support his claim, a new trial would be useless.

The controlling Rule, since the 1983 revision, has read as follows:

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

The Reporter’s Notes were amended to call attention to the deletion:

Rule 50(e) is amended to omit the reference to the motion for new trial as a means of challenging the sufficiency of the evidence. Motions for directed verdict and judgment notwithstanding the verdict are used to challenge the sufficiency of the evidence.

In Re: Amendments to the Rules of Civil Procedure, 279 Ark. 470, 651 S.W.2d 63 (1983). The issue that Southwestern Bell seeks to present to this Court has been waived.

Affirmed.


author: John I. Purtle, Justice.

text:
    Douglas TOLAND v. STATE of Arkansas
    CR 84-213
    688 S.W.2d 718
    Supreme Court of Arkansas
    Opinion delivered April 22, 1985
    [Rehearing denied May 28, 1985.]

      John W. Achor and Jeff Rosenzweig, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was convicted of possession of marijuana with intent to deliver [Ark. Stat. Ann. § 81-2617(a)(l)(iv) (Supp. 1983)] and of aggravated assault [Ark. Stat. Ann. § 41-1604 (Repl. 1977)]. He was sentenced to 10 years for possession and four years for aggravated assault. Sentences were ordered to run consecutively. On appeal appellant argues: (1) that the court erred in refusing to suppress evidence; (2) that the trial court erred in refusing to order the state to identify the confidential informant; and (3) that the conviction for possession is a misdemeanor rather than a felony. We do not find that the court committed prejudicial error for the reasons set out in the opinion.

The appellant and his wife, Lisa Toland, were arrested and charged with possession of a controlled substance with intent to deliver. They were also charged with aggravated assault as a result of placing a shotgun “booby-trap” in a field near their marijuana patch. A motion to suppress contested the validity of the descriptions and directions on the search warrant and the identity of a confidential informant. During the omnibus hearing the court ordered the confidential informant’s identity be disclosed to appellant’s wife. Thereupon, the state dismissed the charges against Mrs. Toland.

Officer Jenkins received a tip from a confidential informant that the appellant was involved in the marijuana business. He obtained the use of an airplane and flew over appellant’s property. He stated he saw marijuana growing in an open field about 100 feet behind appellant’s house. The officer and the unidentified informant drove to the vicinity of appellant’s property. They did not stop or go onto the property but the informant pointed out the house and land to the officer. So far as the record shows, this was the first and last information obtained from this informant. Officer Jenkins appeared before a magistrate and swore to an affidavit to obtain a warrant. Without setting out the facts in detail, it suffices to state that the directions on the warrant were impossible to follow and the information obtained from the unidentified informant was not even alleged to be reliable. For reasons to be stated below this improper procedure does not affect the result of this case.

I

THE COURT ERRED IN REFUSING TO SUP-

PRESS EVIDENCE.

For the purposes of this opinion it is stated that the directions given on the warrant in this case were absolutely defective. No person could have followed the directions and ended up at the site where the search was supposed to have been conducted. So far as the record is concerned the informant furnishing the original information to Officer Jenkins was not proven dependable. There is however no rule, statute, or other procedure which prevents officers from following through and investigating any information received by them whether by confidential informant or otherwise. In the present case Officer Jenkins did not rely solely on the informant’s tip nor did he need the directions given on the warrant. He personally confirmed the information given by the informant and drove to appellant’s property on the ground and flew over it in the air. Under the totality of the circumstances test stated in Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), we have no hesitancy in affirming the trial judge’s refusal to suppress the evidence received as a result of this search and seizure. This search could also be upheld under the “good faith” exception to defects in search warrants as stated in United States v. Leon, 104 S. Ct. 3405 (1984). Officer Jenkins was obviously acting in good faith although the warrant he used was defective. The “good faith” spoken of in Leon was an instance wherein the information supporting the warrant was on the wrong form. In the present case the officer executing the warrant knew exactly where he was going and what he was looking for. The results would have been the same had the information and directions in the affidavit and on the warrant been completely accurate. The appellant probably had no reasonable expectation of privacy concerning his outdoor marijuana farming operation. Oliver v. United States, 104 S.Ct. 1735 (1984); Ford v. State, 264 Ark. 141, 569 S.W.2d 105 (1978), cert, denied, 441 U.S. 947 (1979). Had Officer Jenkins not personally had the necessary information then it could have been argued that he was not acting in “good faith.”

II

THE TRIAL COURT ERRED IN REFUSING TO ORDER THE STATE TO IDENTIFY THE CONFIDENTIAL INFORMANT.

We agree with the trial court that it was not necessary to reveal the identity of the confidential informant because appellant was charged merely with “possession.” Jackson v. State, 283 Ark. 301, 675 S.W.2d 820 (1984).

Ill

THE CONVICTION FOR POSSESSION IS A MISDEMEANOR RATHER THAN A FELONY.

Appellant’s third contention for reversal is that a violation of Ark. Stat. Ann. § 82-2617(a)(l)(iv) (Supp. 1983) is a misdemeanor. We do not find in the abstract or record that this argument was presented to the trial court. Therefore, it cannot be raised for the first time on appeal. Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980). This argument will be decided very shortly in another case.

Affirmed.


text:
    Chester CATO and Verna CATO, His Wife v. ARKANSAS MUNICIPAL LEAGUE MUNICIPAL HEALTH BENEFIT FUND
    84-315
    688 S.W.2d 720
    Supreme Court of Arkansas
    Opinion delivered April 22, 1985

      Wilson, Grider & Castleman, for appellants.

      David H. White, for appellee.
   Robert H. Dudley, Justice.

Appellants, Chester Cato and Verna Cato, were participants in the health insurance program of appellee, the Arkansas Municipal League. Verna Cato suffered a self-inflicted gunshot wound to the head which required that she be hospitalized. Her hospital charges were $26,206.89. Appellants both signed a standard form which authorized the Municipal League’s insurance carrier to pay benefits directly to the hospital. Appellants later filed a claim for the hospital expenses which was denied on the basis that an intentional self-inflicted injury was excluded from coverage. Appellants then retained attorneys on a 40% contingent fee basis. The attorneys filed suit for appellants. After service of process and a denial of liability, appellee settled directly with the hospital for $13,103.45, or 50 cents on the dollar. Neither appellants nor their attorneys were notified of the settlement until after it had been completed. Appellants then amended their complaint to allege that appellee owed them an attorney’s fee equal to 40% of the hospital bill, before settlement, under the attorney’s fee lien statute, Ark. Stat. Ann. § 25-301 (Repl. 1962), and also the 12% penalty plus attorney’s fees as set out in Ark. Stat. Ann. § 66-3238 (Repl. 1980). Additionally, appellants amended their complaint to allege that the refusal to pay hospital expenses directly to appellants constituted the tort of bad faith. Both parties filed motions for summary judgment. The trial court awarded to appellants an attorney’s fee of $10,407.76, or 40% of the $26,206.89 originally billed by the hospital; denied appellants’ claim for the 12% penalty and attorney’s fees; and denied appellants’ claim based upon the tort of bad faith. We reverse and remand on the amount of attorney’s fees, but affirm on all other parts. Jurisdiction to interpret the statutes at issue is in this Court. Rule 29(l)(c).

Appellants first argue that the trial court erred in refusing to award the 12% penalty plus attorney’s fee. Where an insured loss occurs and an insurance company fails to pay the loss within the time specified in the policy, the insurance company is required to pay, in addition to the loss, a 12% penalty plus a reasonable attorney’s fee. Ark. Stat. Ann. § 66-3238 (Repl. 1980). Since this statute is penal in nature, it is to be strictly construed. Callum v. Farmers Union Mutual Ins. Co., 256 Ark. 376, 508 S.W.2d 316 (1974). The plaintiff must recover the exact amount claimed in order to collect the penalty and attorney’s fees. Farm Bureau Ins. Co. v. Paladino, 264 Ark. 311, 571 S.W.2d 86 (1978). In this case, appellants’ complaint and amended complaint asked for a greater amount than was finally recovered. It was only after appellee confessed judgment and tendered $916.83 into the registry of the court that the appellants reduced their claim to the correct sum, the amount which had already been tendered. Even so, appellants argue that they are entitled to penalty and attorney’s fee because they recovered the exact amount finally claimed. The argument is without merit because the insurance company confessed judgment for the correct amount before appellant filed claim for the correct amount. See Broadway v. The Home Ins. Co., 203 Ark. 126, 155 S.W.2d 889(1941).

Appellants next contend that the trial court erred in not awarding punitive damages based upon the first party tort of bad faith. In an unusual proceeding, the appellants filed a motion for summary judgment following a similar motion by appellee, but neither party contended below, nor contends on appeal, that there is any issue of material fact. The trial judge decided the question on the affidavits. We affirm as the decision is not clearly erroneous.

An insurance company may incur liability for the first party tort of bad faith when it affirmatively engages in dishonest, malicious, or oppressive conduct in order to avoid a just obligation to its insured. Employers Equitable Life Ins. Co. v. Williams, 282 Ark. 29, 665 S.W.2d 873 (1984). However, mere refusal to pay a claim does not constitute the first party tort of bad faith when a valid controversy exists with respect to liability on the policy. Findley v. Time Ins. Co., 264 Ark. 647, 573 S.W.2d 908 (1978).

The only provision in appellants’ affidavit which can be construed as a fact showing affirmative conduct designed to avoid a just obligation is the statement that appellee settled the hospital claim directly with the hospital rather than with the appellants. However, in response the appellee, in its affidavit, stated:

5. It is undisputed that Mrs. Verna Cato, Plaintiff herein, suffered a gunshot wound to the head on or about March 12, 1982. From the claim forms, medical reports from doctors at the Corning hospital and the Baptist Memorial hospital, and two investigative reports from Equifax Services Inc., the claim was initially denied based on the exclusion contained in our benefits excluding coverage for self-inflicted wounds. Copy of the above mentioned documents have previously been filed herein.
6. The claim was ultimately appealed to the Municipal Health Benefit Fund’s Board of Trustees who upheld the decision to deny the claim. This lawsuit followed.
7. After commencement of this suit, further investigation undertaken by trial counsel, and research of the applicable Arkansas law, trial counsel advised that the Municipal Health Benefit Fund faced a difficult burden of proof in maintaining that Mrs. Cato suffered an intentional self-inflicted wound. Whereupon a decision was reached to settle this claim.
8. A settlement has been arrived at with the Baptist Memorial hospital and a full release of claims obtained therefor. We have submitted sums in the registry of the court representing payment for claims received by us and for which we provide benefits, up to the limits of our policy. We continue to deny liability for any nursing home or disability income benefits since these claims are not covered by our benefits. In addition, we are due a setoff in the sum of $75.00 which represents the remainder of the deductible provision under the terms of our benefit program.

Upon this evidence we cannot say the trial court’s ruling was clearly erroneous.

The appellee has filed a cross-appeal. The trial court found that when the appellee settled the $26,206.89 debt directly with the hospital for $13,103.45 after suit had been commenced, the appellants’ attorneys held a lien against appellee for 40% of $26,206.89, or a lien for an attorney’s fee in the amount of $10,482.76. We modify and remand for further evidence on this point.

The cross-appellant insurer argues that the crossappellees, the Catos, assigned their medical benefits to the hospital, and therefore, there is nothing to which the lien could attach. While the argument may have some theoretical merit, it is immaterial since the statute does not create a lien against the cross-appellant under the facts of this case.

After an attorney files suit, a party litigant may settle the cause of action without notice to the attorney, but if he does so, the attorney is entitled to a fee. Ark. Stat. Ann. § 25-301 (Repl. 1962); Jarboe v. Hicks, 281 Ark. 21, 660 S.W.2d 930 (1983). In order to collect the fee the attorney may proceed in either of three ways: he may proceed against his client, he may proceed against the other party, or he may proceed against both parties. If the proceeding is against the client the amount of the fee is governed by their agreement and, to insure payment of that fee, the attorney is entitled to a lien upon the client’s cause of action which attaches to any settlement recovered by the client. Ark. Stat. Ann. § 25-301; Baxter Land Co. v. Gibson, 236 Ark. 664, 367 S.W.2d 741 (1963). However, when the attorney only proceeds against the other party litigant, as here, the statute contains no provision for a lien on the cause of action for the agreed fee, but provides that the attorney is entitled to a reasonable fee which shall not necessarily be limited to the amount of the settlement. Thus, the attorney is rewarded to the extent of services performed, even though he has no lien until judgment. Jarboe v. Hicks, 281 Ark. 21, 660 S.W.2d 930 (1983). In discussing a reasonable fee we have stated:

The statute in question provides for a reasonable fee for the attorney against the parties to said action and that the amount of such fee shall not necessarily be limited to the amount of compromise or settlement between the parties litigant. We think this provision of the statute in question, in providing that the fee be reasonable and not limited to the amount of the compromise or settlement, in effect, provides for a fee on a quantum meruit basis. In determining what would be a reasonable fee we take into consideration the amount of time and labor involved, the skill and ability of the attorneys, and the nature and extent of the litigation.

Jarboe v. Hicks, supra, quoting from St. Louis-San Francisco Ry. Co. v. Hurst, 198 Ark. 546, 129 S.W.2d 970 (1939). See also St. Louis S.W. Ry. Co. v. Poe, 201 Ark. 93, 143 S.W.2d 879 (1940); Slayton v. Russ, 205 Ark. 474, 169 S.W.2d 571 (1943).

Because the reasonable fee is not necessarily limited by the amount of settlement, or the contract, we have authorized a $750.00 fee when the settlement was for $1,000.00 and the contingent fee contract called for 40% or a $400.00 fee contract. Jarboe v. Hicks, supra. We allowed a $1,500 fee when the contingent fee contract called for 50% of all sums collected and the authorized settlement was for $1,000.00. St. Louis S.W. Ry. Co. v. Poe, supra. Similarly, a fee of $318.54 was allowed when the case was settled for $50.00. Slayton v. Russ, supra. In the latter case we unequivocally held that proof of a settlement without the attorney’s consent, after the suit is filed, constitutes the only prerequisite to the attorney having his fee fixed on a quantum meruit basis.

Here, the cross-appellee’s attorneys filed suit, and the cross-appellant settled without the consent of the attorneys. Therefore, the attorneys were entitled to a judgment against cross-appellant for a reasonable fee based upon quantum meruit. Instead of basing the attorney’s fee upon quantum meruit, the trial court based the fee upon the contingent fee contract. Since this proceeding was not against the client, but only against the adverse party, the trial judge used the wrong standard to fix the fee, and the record does not contain sufficient evidence for us to set a reasonable fee. Therefore, we must modify and remand for the trial court to set a reasonable fee.

Affirmed on direct appeal.

Modified and remanded on cross-appeal.


author: Steele Hays, Justice.

text:
    Raymond MARSHALL v. Olene MARSHALL
    84-320
    688 S.W.2d 279
    Supreme Court of Arkansas
    Opinion delivered April 22, 1985

      W. H. “Dub” Arnold, for appellant.

      B. W. Sanders, for appellee.
   Steele Hays, Justice.

These parties were granted a divorce and the only points raised on appeal by Mr. Marshall, appellant, concern two of the Chancellor’s holdings on the property division. We address first a challenge to the division of appellant’s retirement benefits.

Prior to his marriage to Mrs. Marshall, appellee, Mr. Marshall was employed by Reynolds Aluminum, and is now receiving retirement benefits of $1,050 per month. He was employed by. Reynolds for thirty-five years and was married to appellee for the last ten of those thirty-five years. The Chancellor found the retirement benefits to be marital property and awarded one-half of those benefits to the wife pursuant to Ark. Stat. Ann. § 34-1214, Division of Property.

The appellant argues that appellee is only entitled to that portion of the benefits which accrued during the marriage or one-half of 2/7ths, approximately $150 per month. He maintains the remainder of the benefits were acquired prior to the marriage and under § 34-1214 would constitute separate property. We agree with appellant.

The Chancellor’s order came on December 30, 1983 before our decision in Day v. Day, 281 Ark. 261, 633 S.W.2d 719 (1984). In Day we overruled our previous decisions and held that pension plan benefits vested but not yet due and payable, constituted marital property and as such should be divided under § 34-1214 unless the court finds such a division to be inequitable. We relied on Re Marriage of Brown, 15 Cal. 3d 838, 126 Cal. Rptr. 633, 544 P.2d 561 (1976). In Brown, the California court overturned its previous rule of not recognizing nonvested property rights as marital property. The court in Brown did not address directly the question raised here but recognized implicitly that such a division as appellant suggests is correct. In stating the facts of the case the court said a substantial portion of the “points” the husband had accumulated for his company was “attributable to his work during the period when the parties were married and living together.” A footnote to that sentence reads: “Since it concluded that non-vested pension rights are not divisible as a community asset, the trial court did not determine what portion of [the appellant’s] pension rights is owned by the community.” The case was remanded for proceedings consistent with the opinion.

Brown is annotated in 94 ALR3d 176 where we find in those jurisdictions recognizing retirement benefits as marital property, there appears to be no question that benefits based on contribution or services not made during the marriage constitute the separate property of the recipient. And in a more recent Arkansas case, Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984), although not addressing the issue presented here, citing Day, supra, we found the retirement benefits of the husband to be marital property and as part of the basis of that decision we stated that the “required years of service and contribution occurred during the marriage.” (Our emphasis).

We agree that such a classification of previously acquired benefits as separate property is in keeping with the spirit and letter of our own property division statute. Our statute (§ 34-1214) requires that all property owned prior to the marriage shall be returned to the owner and if separate property is not returned to one party, the court must state in writing its reasons for not returning it to the party who owned it at the time of the marriage. The Chancellor here made no finding of separate property, nor gave any reasons for not returning the separate property to the appellant.

Under the clear language of § 34-1214 and its logical application to Day, supra, we must find that the court erred in finding that all the retirement benefits constituted marital property. As twenty-five years of Mr. Marshall’s contributions were made prior to the marriage to Mrs. Marshall, that portion acquired before marriage is his separate property. Accordingly, the award of retirement benefits should be modified to reflect the correct proportionate share due each party.

As his second point, appellant argues error in the Chancellor’s finding that the home was marital property and should be divided equally.

At the time Mr. Marshall married appellee, he had a home in his name on a lot he owned, which he purchased for $5,000 and with improvements made by both parties the value was about $15,000. The house burned and the Marshalls collected $20,000 insurance — $15,000 for the home and $5,000 for the contents. It is not disputed that the $5,000 insurance proceeds for contents were for marital property. With the $20,000 insurance proceeds and a note of $5,000 signed by both parties, a mobile home was purchased and placed on the lot owned by the husband.

The court found it undisputed that both parties had contributed separately owned property to the improvement of the home, that at the time of the marriage the house was valued at $5,000 and that the home was personal property to be divided one-half to each, less the indebtedness.

The appellant makes two arguments. First he argues that the original house was his separate property and under § 34-1214(B) the increase in the value of separate property acquired prior to the marriage is not considered marital property. Therefore, the mobile home is nothing more than property acquired in exchange for property acquired before the marriage. In the alternative, appellant argues that if it was correctly decided that the home was marital property, the Chancellor erred in not giving appellant credit for the original payment for the property.

As to appellant’s first point there is no merit. There appears to be agreement from the testimony of both parties, that after the $5,000 investment of the husband, the remaining increase in value was a result of the efforts of both parties, the increase in value representing the greater portion of the value of the home. We find no error in the Chancellor’s finding the new home replacing the burned home was marital property.

We find merit however in appellant’s contention that he should receive credit for his original investment of $5,000. In a somewhat analogous situation in Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983), we allowed the husband credit for salvage from a house he owned separately which had been destroyed by a tornado but had been rebuilt with joint funds with his wife. Although we did not deal with any question of his original investment other than the salvage, it was not questioned that a portion of the proceeds were paid to satisfy the husband’s remaining mortgage. The only proceeds in issue were for the contents jointly owned and used toward the building of the new home. Under the facts and our decision in Williford and the separate property provision of § 34-1214, we find there should be an allowance for Mr. Marshall’s original investment which constituted his separate property.

The court found that the husband had made an original $5,000 investment and that fact is undisputed. No credit was allowed for that amount, nor any reason given why that amount should not be returned to him as required by § 34-1214. We therefore find that the division of the proceeds of the mobile home should be modified to allow Mr. Marshall credit for his $5,000 investment.

The case is remanded for modification of the order consistent with this opinion.


text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Bessie COFFELT
    84-328
    688 S.W.2d 282
    Supreme Court of Arkansas
    Opinion delivered April 22, 1985
    [Rehearing denied May 28, 1985.]

      Thomas B. Keys and Chris O. Parker, for appellant.

      Kenneth C. Coffelt, for appellee.

       Hickman, J., not participating.

   Steele Hays, Justice.

This is the third appeal of a long standing dispute between the Arkansas State Highway Commission and Mrs. Bessie W. Coffelt involving the intersection of Coffelt Road and U.S. Highway 67. The background of the litigation is stated in depth in our opinion in Coffelt v. Arkansas State Highway Commission, 285 Ark. 314, 686 S.W.2d 786 (1985).

In 1955 the D’Angelos granted an easement for a freeway and frontage road across lands they owned in north Pulaski County where Highway 67 was to be constructed. The conveyance affected all rights of abutment from either side of the freeway, reserving only the right of access to the frontage road and, hence, to the freeway at such points as might be established by the highway department. The D’Angelos later sold their lands to the Coffelts, subject to the easement, and eventually title vested to Mrs. Coffelt alone.

In 1972, Mrs. Coffelt sued the highway department to enjoin a threatened interference with what by then was known as Coffelt Road, at its juncture with Highway 67 alleging in the complaint that an overpass at the Coffelt Road crossing had been promised. As noted in our opinion mentioned above, this contention seems to have been abandoned, though had an overpass, been constructed, it would have resolved any conceivable dispute over the crossing.

In the 1972 phase of this litigation the Chancellor held that Mrs. Coffelt continued to own the fee in the lands involved and he permanently enjoined the commission from interfering with the free use of Coffelt crossing until her remaining interest was acquired by eminent domain or by purchase. That ruling was affirmed on appeal to this court in Arkansas State Highway Commission v. Coffelt, 257 Ark. 770, 520 S.W.2d 294(1975).

. The case remained in a dormant state until recently when the commission elected to condemn the outstanding interest and eliminate the crossing of Highway 67 at that point. A few days before condemnation proceedings were actually begun, “no turn” signs were erected at both sides of the freeway on Coffelt Road. Mrs. Coffelt petitioned the Chancery Court for citation for contempt of court against the commission members and director, as a result of which the respondents were held to be in contempt and fined $49 each. A later order awarded Mrs. Coffelt’s attorney a fee of $700.

The commission has petitioned for certiorari, traditionally the method of reviewing contempt cases. However, since this petition was filed we noted that gradually the distinctions between review of contempt proceedings by certiorari and review by appeal as in other cases have disappeared in all but name — and henceforth review in contempt would be by appeal. Frolic Footwear v. State, 284 Ark. 487, 683 S.W.2d 611 (1985).

We might easily dispose of this appeal on the basis of a lack of jurisdiction by the trial court to punish for contempt, as there was no personal service on the respondents, nor was there any waiver of that requirement. Hilltop, Inc. v. Riviere, 268 Ark. 532, 597 S.W.2d 596 (1980); Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983). But in view of the long history of the case and because the latest, presumably the final, phase is still pending, we prefer to deal with the merit of the substantive issue.

No violation of the restraining order occurred. The highway commission simply posted signs which prohibited vehicles on Coffelt Road from turning onto the freeway, which it had every right to do. There was no attempt to interfere with the right to cross the freeway at Coffelt Road, the only right not conveyed by the D’Angelos under their 1955 easement and, thus, the only right acquired by Mrs. Coffelt. See Coffelt v. Arkansas State Highway Commission, 285 Ark. 314,686 S.W.2d 786 (1985). True, the wording of the permanent restraining order might have been clearer, as it enjoins the commission “from closing or interfering in any manner with the free use of Coffelt Road crossing or interfering with the flow of traffic on said crossing. ’’But the order must be read in context. Ferracuti v. Ferracuti, 27 Ill. App. 3d 495, 326 N.E.2d 556 (1975), Christiano v. Christiano, 131 Conn. 589, 41 A.2d 779 (1945), and in that light the order only restrained the fight of crossing. That was the only right Mrs. Coffelt had (or for that matter, the only right she even claimed to have when she filed her suit in 1972, in view of her allegation the commission had promised to build an overpass) and any scrutiny into the wording of the original easement, or the background of the case, would have rendered that fact quite clear. Coffelt v. Arkansas State Highway Commission, supra.

The orders appealed from are reversed and the petition is dismissed.

Hickman, J., not participating.


text:
    WARNER HOLDINGS, LTD., Ruth SINGER and Hymie SINGER v. Mary Ann ABREGO, Larry A. COTTEN, and Brenda S. COTTEN
    84-295
    688 S.W.2d 724
    Supreme Court of Arkansas
    Opinion delivered April 22, 1985

      Gregory T. Karber, for appellants.

      Harper, Young, Smith & Maurras, by: Robert Y. Cohen, II, for appellee Mary Ann Abrego.

      Phillip J. Taylor, for appellees Larry A. Cotten and Brenda S. Cotten.
   David Newbern, Justice.

This is the second appeal arising from a mortgage foreclosure case. Our jurisdiction is based on Ark. Supreme Court and Court of Appeals Rule 29. 1. j. In the first appeal we held that, given the state of the law in 1974, when the mortgage was executed, the mortgagor, United Peoples Federal Savings and Loan Association, could not enforce a “due on sale” clause against its mortgagee, Mary Ann Abrego, and those who had purchased the mortgaged property from her. Abrego v. United Peoples Federal Savings and Loan Association, 281 Ark. 308, 664 S.W.2d 858 (1984). Larry and Brenda Cotten had purchased from Abrego, and ultimately Warner Holdings and Ruth Singer had purchased from the Cottens. Hymie Singer had co-signed Ruth’s note to the Cottens. Peoples had sought enforcement against Abrego and had named the Cottens and Warner and the Singers as defendants.

In their purchase agreement with Abrego, the Cottens had promised to indemnify Abrego for any loss resulting from demands Peoples might make, and they specifically agreed to pay attorney’s fees which might be incurred by Abrego in protecting her interest in the property and in enforcement of the indemnity agreement against the Cottens. In their agreement with the Cottens, which incorporated the Abrego-Cotten agreement by reference, Warner and Singer promised to protect the Cottens in the same manner Abrego was protected in her agreement with the Cottens.

In her original decision the chancellor awarded eighty percent of the attorney’s fees requested by attorneys for Abrego and the Cottens against Warner and Singer. In remanding the case we held the eighty percent award might have been arbitrary and directed the chancellor to award reasonable attorney’s fees, costs and other reasonable expenses. In her reconsideration, the chancellor awarded substantially more in attorney’s fees than she had originally allowed.

Warner and Singer argue that (1) no attorney’s fees should have been awarded to the Cottens for enforcement of their indemnity agreement against Warner and Singer; (2) it was error to hold Warner and Singer ultimately liable for attorney’s fees awarded to Abrego in enforcement of her indemnity agreement with the Cottens; and (3) the attorney’s fees awarded were excessive. The Cottens have cross-appealed, saying that if Warner’s and Singer’s obligations to them are reduced, their obligations to Abrego should also be reduced. As we affirm on appeal, the cross-appeal becomes moot.

1. Indemnity agreement enforcement

For their contention that they should not have to pay attorney’s fees incurred by the Cottens in enforcement of their agreement with Warner and Singer, Warner and Singer cite U.S. Fidelity and Guaranty Company v. Love, 260 Ark. 374, 538 S.W.2d 558 (1976), for the general proposition that when a party agrees to indemnify another against losses, attorney’s fees incurred in enforcement of the indemnity agreement are not recoverable. We continue to observe that general proposition but need only note here that it was developed in cases in which the indemnity agreement contained no specific promise that the indemnitor would pay the attorney’s fees of the indemnitee incurred by the indemnitee in enforcing the indemnity agreement. See, e.g., U.S. Fidelity and Guaranty Co. v. Love, cited above. We have no doubt that there was an agreement to pay attorney’s fees, as the contract between the Cottens and Warner and Singer said the Cottens were to be protected in the same manner Abrego was protected. The appellants do not challenge Abrego’s right to an attorney’s fee in enforcement of her indemnity contract against the Cottens. Because of its “same protection” language, the contract between the Cottens and Warner and Singer provided Warner and Singer were to pay the Cottens’ attorney’s fees incurred in enforcing their agreement.

2. Fees passed on

Warner and Singer argue that in her original decree the chancellor did not award the Cottens an amount to compensate them for attorney’s fees the Cottens were required to pay Abrego under the Abrego-Cotten agreement. Their further contention is that, as this court did not reverse the chancellor’s decision on that point, her first decision is law of the case, and she should not have made such an award on remand. While the chancellor was not specific in saying what the attorney’s fee she awarded to the Cottens represented, we must agree it could not have included the larger sum awarded to Abrego. Nothing in the abstract or, as far as we can tell, the record, shows this law of the case argument was called to the chancellor’s attention. It was not stated in a brief submitted to the chancellor by Warner and Singer in which they argued the effect of the hold harmless agreements. We will not consider an issue raised for the first time on appeal. Green v. Ferguson, 263 Ark. 601,567 S.W.2d 89 (1978).

Even if we were to consider it, we would have to say the chancellor reached the right result in view of Warner’s and Singer’s agreement to protect the Cottens just as Abrego was protected in the Abrego-Cottens agreement. We affirm if the chancellor reached the correct result. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979).

3. Reasonableness of attorney’s fees

Warner and Singer argue that the fees awarded by the chancellor are excessive in comparison with her original awards. In view of the fact that an appeal and proceedings on remand have occurred since the original awards were made we think the comparison is not very useful.

When she made the final award of attorney’s fees, the chancellor had before her briefs of the parties and a record of unrefuted expert testimony to the effect the fees sought by the attorneys for Abrego and the Cottens were reasonable, and, in the case of one attorney, less than a reasonable hourly rate had been charged. The record also included detailed time records of the attorneys. In her decision the chancellor cited our leading case on the . manner of determining reasonableness of attorney’s fees. Love v. United States Fidelity and Guaranty Co., 263 Ark. 925, 568 S.W.2d 746 (1978).

There is no precise formula for the determination of reasonableness of attorney’s fees. Southall v. Farm Bureau Mutual Insurance Co. of Arkansas, Inc., 283 Ark. 335, 676 S.W.2d 228 (1984). The question of reasonablness of attorney’s fees is to be addressed to the chancellor’s discretion. Troutt v. First Federal Savings and Loan Association of Hot Springs, 280 Ark. 505, 659 S.W.2d 183 (1983); New Hampshire Insurance v. Quilantan, 269 Ark. 359, 601 S.W.2d 836 (1980). We find no abuse of discretion here.

We cannot end this opinion without noting we have not. been asked to address instances in which attorney’s fees may be allowed as a general proposition. The appellant has not argued that attorney’s fees may not be awarded unless specifically authorized by statute, or that an agreement permitting recovery of such fees constitutes an unlawful penalty. See Missouri Pacific Railroad Co. v. Winburn Tile Manufacturing Co., 461 F.2d 984 (1972); Note, 9 Ark. L. Rev. 70 (1954). We recognize that our decisions in this area are not clear, and, when presented with a case raising the issue properly, we will address squarely the question whether a clause permitting recovery of reasonable attorney’s fees incurred in enforcement of the agreement containing the clause is enforceable.

We also have before us motions to assess reasonable attorney’s fees and costs in favor of the appellees on this appeal. The only response of the appellants is that this court previously found the attorney’s fees not to be covered by the indemnity agreement and the fees requested are excessive. We. made no such finding in our earlier decision.

The attorney for appellee Abrego seeks a fee of $976.00 and costs of $125.57, or $1,101.57. We find these amounts to be reasonable and assess them jointly and severally upon the Cottens, Warner and Ruth Singer.

The Cottens ask that the fees awarded to Abrego against them on this appeal be awarded in turn in their favor against the appellants. The motion is granted.

The Cottens ask further for an award of their attorney’s fees against the appellant on this appeal. They ask the amount sought by their attorney which is $2,145.00 for fees and costs plus expenses advanced on behalf of Abrego in the amount of $76.88. We hold that $1,200 may be charged as a reasonable fee for the Cottens’ attorney, and they are entitled to that amount from the appellants plus the above mentioned costs of $76.88 and printing costs of $113.56.

Affirmed.


text:
    Gary LOMAX v. STATE of Arkansas
    CR 84-195
    688 S.W.2d 283
    Supreme Court of Arkansas
    Opinion delivered April 22, 1985

      Ricky Gill, for appellant.

      Steve Clark, Att’y Gen., by: Michael E. Wheeler, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant Gary Lomax was found guilty by a jury of aggravated robbery and séntenced to a term of 20 years imprisonment in the Arkansas Department of Correction. He subsequently filed a petition pursuant toA.R.Cr.P. Rule 37 to vacate the sentence, alleging ineffective assistance of counsel. The petition was denied without a hearing and appellant brings this appeal.

Pursuant to Anders v. California, 386 U.S. 738 (1967), appellant’s counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Appellant was notified of his right to file a pro se brief within 30 days. See Rules of the Supreme Court, Rule 11(h), Ark. Stat. Ann. Vol. 3A (Supp. 1983). He did not file a brief. The State concurs that the appeal has no merit.

Petitioner alleged in his petition for postconviction relief that counsel was ineffective for urging him to accept a plea bargain, advising him not to testify and failing to perfect an appeal. Neither urging an accused to accept a negotiated plea nor merely advising him against taking the stand constitutes ineffective assistance of counsel. Both are matters of strategy and therefore outside the purview of Rule 37. Smith v. State, 283 Ark. 264, 675 S.W.2d 627 (1984).

The circuit court need not hold an evidentiary hearing where it can be conclusively shown on the record or the face of the petition itself, as it can be in this case, that the allegations have no merit. See Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979). On appeal, we affirm the trial court’s denial of postconviction relief unless it is clearly against the preponderance of the evidence. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984). The trial court’s decision here was not clearly against the preponderance of the evidence.

With regard to petitioner’s claim that his attorney failed to appeal when requested to do so, petitioner was entitled at most to a belated appeal, but he failed to request one in accordance with A.R.Cr.P. Rule 36.9 which governs motions for belated appeal. Appellant was committed in February, 1982, and therefore could have filed a motion for belated appeal in this Court at any time between that date and August, 1983, which was eighteen months after the date of commitment. Rule 36.9. He did not file such a motion. Instead, petitioner raised the question of whether counsel was ineffective for failure to appeal in his Rule 37 petition, filed April 11, 1984. Rule 37, however, is not a means of by-passing a motion for belated appeal. If it were construed to be so, an appellant could simply ignore the rule limiting the time for filing a motion for belated appeal in favor of filing a Rule 37 petition which may be filed at any time up to three years from the date of commitment. See Rule 37.2(c).

From a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed.

Affirmed.


text:
    Chester WARREN, et ux v. Hon. Van B. TAYLOR, Chancellor
    85-65
    687 S.W.2d 848
    Supreme Court of Arkansas
    Opinion delivered April 22, 1985

      Susanne K. Roberts, for petitioners.

      Bill Strait, for respondent.
   Per Curiam.

The petitioners were found in contempt of court on January 15, 1985 by Judge Van B. Taylor of the Yell County Chancery Court. A petition for writ of certiorari was filed asking this court to order the record of the proceedings below forwarded for the purpose of determining whether the evidence supports the verdict rendered.

The petition for writ of certiorari is no longer the remedy for review of a finding of contempt; appeal is the remedy. Frolic Footwear, Inc. v. State, 284 Ark. 487, 683 S.W.2d 611 (1985). Accordingly, this matter is remanded to the trial court to determine a proper bond pending an appeal, provided the petitioners desire to appeal.

Remanded.


text:
    Floyd WILLIAMS v. John LANGSTON, Judge, Fourth Division, Circuit Court of Pulaski County
    CR 76-93
    688 S.W.2d 285
    Supreme Court of Arkansas
    Opinion delivered April 22, 1985
    Petitioner, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner was convicted by a jury of capital felony murder and sentenced to life imprisonment without parole. We affirmed. Williams v. State, 260 Ark. 457, 541 S. W.2d 300 (1976). In 1976, petitioner filed a petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37 which was denied. He was allowed to file a second Rule 37 petition in 1979 because his original petition presented only conclusory allegations. This petition was also denied. We denied a third petition for postconviction relief in 1981.

Petitioner has now filed a petition for writ of mandamus, asking this Court to direct the Circuit Court of Pulaski County to act on a petition for writ of error coram nobis which he filed in that court on September 20, 1984.

Once a conviction has been affirmed on appeal, error coram nobis is not available to secure a new trial on the basis of newly discovered evidence or to raise issues which are properly raised in a petition pursuant to Criminal Procedure Rule 37. See Pickens v. State, 284 Ark. 506, 683 S.W.2d 614 (1985); see also Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). If a petitioner discovers some ground for relief such as that claimed by the petitioner in Pickens after a judgment is affirmed, he may present that ground in a clemency proceeding. Allegations of constitutional error and ineffective assistance of counsel, such as those argued by petitioner in his error coram nobis petition, may be argued on direct appeal and under our postconviction rule. We expanded the writ of error coram nobis in Penn to fill a gap in the legal system. Petition for writ of error coram nobis is not available after we review a case. Petitioner’s conviction was affirmed and three petitions for postconviction relief were considered and denied; therefore, it is not an appropriate remedy in this case. As the circuit court has no duty to grant relief to petitioner, the petition for writ of mandamus is dismissed.

Petition dismissed.


author: Jack Holt, Jr., Chief Justice.

text:
    Helen REDDOCH, et al v. Ora H. BLAIR, et al
    84-173, 84-208
    688 S.W.2d 286
    Supreme Court of Arkansas
    Opinion delivered April 29, 1985
    [Rehearing denied June 3, 1985.]

      Guy H. “Mutt” Jones, Sr., Phil Stratton, and Casey Jones; Graham Sudbury; and Robert R. Wright, by: Robert R. Wright, for appellant.

      Fendler, Gibson ir Bearden, for appellee.
   Jack Holt, Jr., Chief Justice.

The issues in this appeal concern the contest of a will executed by Elizabeth H. Bowden. Two cases involving the same parties have been consolidated. Our jurisdiction is pursuant to Sup. Ct. R. 29(1 )(p).

Elizabeth H. Bowden, of Osceola, Ark., died January 30, 1982, at the age of 81. She was survived by five sisters: Helen Reddoch, Geneva Rauenhorst, Ora Blair, Rosamond Banks and Irene Wilson; and two half-brothers and one half-sister. A will executed by Mrs. Bowden on December 7, 1981, was admitted to probate. The will favored Helen Reddoch and her descendants and did not provide for the decedent’s other relatives. Mrs. Reddoch, who is now deceased, had lived with Mrs. Bowden since the 1940s when Mrs. Bowden’s husband died. She was living with her at her death, as was Mrs. Reddoch’s daughter, Rose Mahan, also now deceased.

Two of Mrs. Bowden’s sisters, Mrs. Rauenhorst and Mrs. Blair, contested the will claiming it was procured through undue influence exercised by Mrs. Reddoch and Mrs. Mahan. One year later the other sisters and the half brothers and sister joined in the will contest.

After a 17-day trial during which 52 witnesses were heard, the trial court entered an order on March 26, 1984, finding (1) that Elizabeth Bowden possessed the mental capacity to make a will; (2) that her capacity was diminished making her susceptible to the undue influence of others; (3) that Mrs. Reddoch and Mrs. Mahan had the opportunity to, and did unduly influence the decedent; (4) that as a result the will contained provisions which favored them to the exclusion of other members of the family; (5) the will was an expression of the desires of Helen Reddoch and/or Rose Mahan; (6) the dispositive provisions were the result of undue influence; and (7) the revocation clause was valid, which creates an intestacy and requires that the estate be shared equally by the decedent’s surviving sisters or their heirs.

It is from the trial court’s order that these appeals are brought. The appellants contend that the court erred in holding the dispositive provisions of the will invalid because of undue influence. We agree.

Probate and chancery cases are tried de novo on appeal. This court does not reverse unless the findings of the probate judge are clearly erroneous, giving due deference to the superior position of the judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Terrell Faith Prophet Ministries v. Estate of Varnum, 284 Ark. 108, 681 S.W.2d 310 (1984); Edwards v. Vaught, 284 Ark. 262, 681 S.W.2d 322 (1984). In this instance, the probate judge’s finding that undue influence on the part of Mrs. Reddoch and Mrs. Mahan avoids the dispositive aspects of the will was clearly erroneous.

We have held many times that the party challenging the will is required to prove undue influence at the time the will was executed by a preponderance of the evidence. Rose, supra. Much of the testimony touched on the relationship of the parties over the years, and previous wills written by Mrs. Bowden, but did not focus on the execution of the will in question. The facts surrounding the execution of the will were as follows.

Mitchell Moore, the attorney who prepared the will, testified that he had known Elizabeth Bowden since about 1967. An accountant had informed Moore that Mrs. Bowden would be contacting him about some legal work and Rose Mahan had also contacted Moore with the same information. Neither the accountant nor Rose Mahan told Moore the nature of the work Mrs. Bowden would require. Moore stated that he first met with Mrs. Bowden at her house on September 22, 1981. He visited with her, Ms. Mahan and Mrs. Reddoch for a few minutes and then Mrs. Bowden asked the other two women to excuse themselves so they could talk. Moore testified that he was at the Bowden residence for about three and one-half hours and that he and Mrs. Bowden discussed a prior will that Susan Callison, a Memphis attorney, had made for her in 1980. Mrs. Bowden was concerned that under the 1980 will her taxes were too high and she had a bank trustee she did not want. She selected a new trustee and told Moore that she had already given two of her other sisters property. She also informed him of how long Mrs. Reddoch had lived with her and discussed some of her grandchildren. Moore indicated that Mrs. Bowden liked the Callison will but had had a change of heart about some of its provisions. Specifically, in the Callison will, Rose Mahan and Carlos Reddoch, Helen Reddoch’s son, were not left any property and Mrs. Bowden now wanted to treat Mrs. Reddoch’s three children equally, by leaving them each one-third of the estate. Moore stated that she initially wanted to leave everything to Mrs. Reddoch, but that he advised her that because of the tax consequences she should give Mrs. Reddoch the tax exemption equivalent. At no time, according to the attorney, did Mrs. Bowden consult Rose Mahan, or her three sisters who lived in the area: Mrs. Blair, Mrs. Reddoch or Mrs. Banks. Instead, he said she was insistent on keeping their discussions private.

After the September 22 meeting, Moore said he conferred with Mrs. Bowden by phone and was at her house one or two times. In each of these discussions, Moore stated that although Mrs. Bowden would forget some things she never forgot the property she owned and how she wanted it disposed of.

On December 7,1981, Mrs. Reddoch took Mrs. Bowden to Moore’s office to execute the will. Rose Mahan was in Memphis at the time. Mrs. Reddoch stated that Mrs. Bowden, who suffered from severe asthma, cerebral arteriosclerosis, dementia, and chronic obstructive pulmonary disease, was in good condition that day. When they arrived, Mrs. Reddoch stated that they visited with Moore about some property located in Mississippi. She then left Mrs. Bowden and Moore alone in the library to discuss the will. She went in the room a few times to check on Mrs. Bowden but stated that she did not remember any discussion about the will. Mrs. Reddoch returned to the library when the will was signed, but the will was not read during that time. Moore then drove Mrs. Bowden and Mrs. Reddoch home.

Moore’s testimony supported Mrs. Reddoch’s version of the events surrounding the execution. Moore further stated that he asked Mrs. Bowden questions in front of the witnesses to the will, Dr. Eldon Fairley and James Morgan, which required answers detailing the extent and nature of her property. He also asked her what she wanted to do with her property and she replied that she wanted Helen to have the property for life and then have it go to Helen’s children. During their private conference, Moore said he read the entire will with Mrs. Bowden and satisfied himself that this was her will and was what she wanted to do with her property. He further stated that neither Mrs. Reddoch nor Rose Mahan had any knowledge concerning the dispositive provisions of the will.

Vickey Hobbs, an employee of Moore’s law firm, testified that Mrs. Bowden appeared to understand what she was doing and seemed to be acting of her own free will.

James Morgan, one of the witnesses, stated that in his opinion Mrs. Bowden understood what she was doing in Moore’s office. He said she answered questions in a correct, proper manner and appeared to know and understand what she owned and who her closest relatives were. He testified he saw nothing to indicate she was acting under any duress.

Dr. Fairley, another witness who was also Mrs. Bowden’s personal physician, stated that people in Mrs. Bowden’s condition can be influenced by whoever is with them. He stated, however, that on the day the will was executed she answered questions about her property correctly and indicated she understood her will and knew who she wanted to leave her property to. Dr. Fairley stated that although Mrs. Bowden still had medical problems they did not seem to be bothering her as much that day and she seemed pretty clear. He testified that he thought Mrs. Bowden knew what she was doing when she signed the will and that he would not have witnessed the will if he did not think she was aware of her actions.

Other evidence was offered at the trial that Mrs. Bowden had executed wills in 1976, 1980 and 1981. There was also evidence of a 1956 will. Each of the wills, including the 1956 will, evinced a consistent pattern of making Helen Reddoch and her descendants Mrs. Bowden’s primary beneficiaries. Except for the earliest will, written some 25 years before her death, the other sisters and half-relations were mostly excluded. Furthermore, Helen was the only sister with whom Mrs. Bowden had consistently close contact since the two lived together for 40 years.

We said in Rose v. Dunn, supra, that:

Undue influence which avoids a will is not the influence which springs from natural affection or kind offices, but is such as results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property, and it must be specially directed toward the object of procuring a will in favor of particular parties. . . . The mere fact that a beneficiary is present while a will is made does not give rise to a presumption of undue influence.

We also stated in Rose that a rebuttable presumption of undue influence arises in the case of a beneficiary who procures the making of a will. We found no procurement in that case where the beneficiary merely drove the testator to the attorney’s office and participated in the initial discussions. Here there is no evidence that either Rose Mahan or Helen Reddoch procured the will and therefore the presumption did not arise.

In determining the question of undue influence “[i]t is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relation with them at the time of its execution.” Greenwood, Guardian v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979). In Sullivant v. Sullivant, 256 Ark. 95, 564 S.W.2d 665 (1965), we explained:

Testators are not required by law to mete out equal and exact justice'to all expectant relations in the dispositions of their estates by will, and the motives of partiality, affection, or resentment, by which they naturally may be influenced, are not subject to examination and review by the courts.

In Abel v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971), we explained that a will is usually considered “unjust and unnatural” when a testator leaves his estate to strangers to the exclusion of the natural objects of his bounty without any apparent reason. We said, however:

A will cannot be said to be unnatural because a testator preferred one for whom she had developed a close and affectionate relationship ... or when the natural objects of the testator’s bounty are in no need of funds, aid or assistance.

Here, the proof indicated that not only was the decedent in a close relationship with Helen Reddoch, but she had made gifts to some of her other sisters and, on the whole, considered that they were not in need of financial help from her. The fact that their relationship made Mrs. Reddoch and Rose Mahan natural objects of Mrs. Bowden’s bounty, coupled with the strong pattern she had shown over the years of favoring Mrs. Reddoch and her children, support the validity of the will. We find, therefore, that the trial judge clearly erred when he held the will invalid.

Accordingly we reverse and remand with instructions that the 1981 will be admitted to probate. Our holding makes it unnecessary to reach the other issues raised in this appeal or the issues raised in the companion case.

Reversed and remanded.