author: Robert L. Brown, Justice.

text:
    Loye DOUGLAS v. ADAMS TRUCKING COMPANY, Inc.
    00-1242
    46 S.W.3d 512
    Supreme Court of Arkansas
    Opinion delivered June 7, 2001

      Perroni & James Law Firm, by: Samuel A. Perroni and Janan Arnold Davis, for appellant.

      Matthews, Sanders & Sayes, by: Doralee Idleman Chandler and Roy Gene Sanders, for appellee.
   Robert L. Brown, Justice.

The appellant, Loye Douglas, appeals from the judgment of the circuit court in which the court found that appellee Adams Trucking Co., Inc., was entitled to an offset of $108,734.57 against the jury’s award of damages in the amount of $178,000. We affirm the finding of an offset, but we reverse and remand with instructions to modify the offset amount to $76,723.24.

The facts of this case arise from a personal injury-action. On June 5, 1997, appellant Loye Douglas, a 55-year-old chicken farmer, was driving his tractor with an attached mower along the side of Highway 10 in Perry County. While doing so, he was struck from behind by a tractor-trailer rig driven by Billy Carl Holmes and owned by Adams Trucking. The impact of the collision caused his tractor to travel forty feet and strike a tree. Douglas was thrown from the tractor and suffered multiple injuries, including facial lacerations, broken ribs, fractured vertebrae, and a partially collapsed lung. He was unable to work on his chicken farm for about nine months.

Following the accident, the liability carrier for Adams Trucking, Columbia Insurance Company, made several advance payments to Douglas for his injuries and loss of property, which totaled $110,220.13. This amount included $63,111.33 for lost wages, $19,011.10 for property damage, $18,098.24 for medical expenses, funds to reimburse Douglas for hired help in the amount of $8,900, and $1,099.46 for reimbursement of out-of-pocket expenses. The $63,111.33 represents a total of the following payments made to Douglas by Columbia Insurance on the dates noted with the specified statement as to what the payment was for:

• Check dated 7-3-97 in the amount of $1,000.00; payment for “Advance on Settlement.”
• Check dated 7-11-97 in the amount of $7,012.37; payment for “Advance.”
• Check dated 8-6-97 in the amount of $6,012.37; payment for “Advance on Income.”
• Check dated 9-11-97 in the amount of $7,012.37; payment for “Income Advance.”
• Check dated 10-10-97 in the amount of $7,012.37; payment for “Income Advance.”
• Check dated 11-7-97 in the amount of $7,012.37; payment for “Income Advance.”
• Check dated 12-12-97 in the amount of $7,012.37; payment for “Income Advance.”
• Check dated 1-14-98 in the amount of $7,012.37; payment for “Advance.”
• Check dated 3-16-98 in the amount of $7,012.00; payment for “Lost Wages, Advance on Settlement.”
• Check dated 7-10-98 in the amount of $7,012.00; payment for “Lost Income.”

After receiving the payments, Douglas and Columbia Insurance attempted to settle the entire liability matter. Their efforts were unavailing. On April 5, 1999, Douglas and his wife, Anna Douglas, filed a personal-injury complaint against Adams Trucking and alleged negligence. They asked for damages for pain and suffering, disfigurement, permanent injuries, lost wages, loss of present and future earning capacity, and loss of consortium. On February 22, 2000, Adams Trucking moved for offset for all of the advance payments, which totaled $110,220.13. The Douglases responded and denied that any payments were made “directly to them” as advance payments on any liability claim. They further asserted that there was no agreement between the parties that the funds were paid for the damages they sustained.

On March 9, 2000, the circuit court held a pretrial hearing on the motion for offset. At the hearing, counsel for the Douglases urged the court to instruct the jury to break down any damages awarded into specific elements such as medical expenses, property loss, and lost earnings and profits. The circuit court tentatively agreed to do this but reserved ruling on whether a credit for advance payments would be allowed against a total damage award or whether the credit would only be allowed for advance payments which corresponded with a specific element of damage.

Trial of this matter commenced on March 20, 2000. Prior to the submission of the case to the jury, it was stipulated by the parties and presented to the jury that Loye Douglas or the Douglases had incurred the following damages: (1) property damage in the amount of $18,625.00; (2) medical bills in the amount of $18,098.24; and (3) paid outside help in the amount of $8,904.00.

The case was submitted to the jury as a special verdict with the elements of damage broken out, and the jury returned a verdict in favor of Loye Douglas, awarding him:

Medical Expenses $19,000.00;
Personal Property $19,000.00;
Lost Earnings and Profits $40,000.00;
Nature and Permanency of Injury $0.00;
Pain and Suffering $100,000.00;
Loss of Ability to Earn $0.00.

The circuit court conducted a posttrial hearing on the offset issue on March 29, 2000. At that hearing, Loye Douglas testified about the advance payments by Columbia Insurance, and the court received evidence. At the conclusion of the hearing, the court found that Adams Trucking was entitled to an offset in the total amount of advance payments, which was $108,734.57. This amount included the following advance payments but excluded the $1,099.46 paid to the Douglas family for reimbursement of out-of-pocket expenses: (1) $63,111.33 for lost wages, (2) $18,625.00 for property loss, (3) $18,098.24 for medical expenses, and (4) $8,900.00 for the hiring of outside help. That left an unpaid judgment to be paid by Adams Trucking of $69,265.43.

I. Offset For Advance Payments

The first issue raised by Loye Douglas on appeal is whether the circuit court erred in granting an offset against the jury verdicts for advance payments by Columbia Insurance. Under this point, Douglas argues against any offset being made and urges several theories for his position.

We observe at the outset that a paucity of cases exists on this point. However, the cases that do exist tend to support a credit for advances paid. See, e.g., Keating v. Contractors Tire Serv., Inc., 428 So. 2d 624 (Ala. 1983); Russell v. Ashe Brick Co., 267 S.C. 640, 230 S.E.2d 814 (1976); Edwards v. Passarelli Bros. Auto. Serv., Inc., 8 Ohio St. 2d 6, 221 N.E.2d 708 (1966). See also State Farm Mut. Auto. Ins. Co. v. Rose, 52 Ark. App. 175, 916 S.W.2d 764 (1996) (liability carrier entitled to an offset against a jury verdict for medical expenses previously paid). But see Matthews v. Watkins Motor Lines, Inc., 419 So. 2d 1321 (Miss. 1982) (Supreme Court denied credit for advances made where defendant/tortfeasor did not raise issue of credit due until after the jury verdict).

In Edwards v. Passarelli Bros. Auto. Serv., Inc., supra, for example, the Ohio Supreme Court held:

[W]here an advance payment is made to a possible tort-claimant upon condition that such payment is to be credited to the amount of any final settlement or judgment in favor of such tort-claimant, such sum may be credited to any such final settlement or judgment; and, if judgment is rendered, the proper procedure is to ask by post-judgment motion for a credit toward satisfaction of the judgment.

8 Ohio St. 2d at 9, 221 N.E.2d at 711. The distinguishing factor of the Edwards case is that there was an agreement in effect which conditioned receipt of payment on the basis that any payment would be credited against any final settlement or judgment.

In two subsequent cases from other jurisdictions, there was no express agreement between the injured party and the insurance carrier, but advance payments were made nonetheless. In Russell v. Ashe Brick Co., supra, the South Carolina Supreme Court held that Ashe Brick was entitled to an offset notwithstanding the absence of any receipt from the potential claimant stipulating that payment would be credited against any final settlement or judgment. In that case, the plaintiff, Russell, had been injured at Ashe Brick when a pallet of bricks collapsed on top of him. The insurer for Ashe Brick sent Russell a check for $5,500.00, together with a letter stating its regret that a settlement had not been reached and its hope that the payment would bring the matter to an amicable conclusion. Russell subsequently brought suit against Ashe Brick, and judgment was entered against Ashe Brick in the amount of $2,000.00 for actual damages and $5,000.00 punitive damages. Ashe Brick then filed a posttrial motion in which it requested an offset and credit in the amount of the $5,000.00 previously paid to Russell. The trial court disallowed this, but the Supreme Court reversed. The Supreme Court noted that Russell had cited cases from other jurisdictions which involved advance payments, which the court described as “the laudable practice of expediting payment to injured parties prior to and in anticipation of future settlement or judgment.” Russell, 267 S.C. at 643, 230 S.E.2d at 815. Additionally, the Supreme Court stated that in those cases, receipts were signed which stipulated that the payments would be credited against any final settlement or judgment. The court concluded that even though signed receipts were a factor notably absent from the case at hand, a credit was warranted. The court said:

However, there is a common thread running through all the cases which needs no precedential support and is particularly persuasive. Why should the respondent be allowed to collect $12,500.00 on a judgment that the jury has assessed at $7,000.00? The disjointedness of the question perhaps suggests why it has not been necessary heretofore to litigate it. The nonexistence of a receipt delineating the obvious desire to credit the payment against any future liability secured on the same claim is without legal significance. See Harrington v. Edwards [footnote omitted], 262 S.C. 263, 203 S.E.2d 691 (1974).

Russell, 267 S.C. at 643-44, 230 S.E.2d at 815.

Similarly, in Keating v. Contractors Tire Serv., Inc., supra, the Alabama Supreme Court held that where the issue was properly raised prior to trial, the trial court did not err in requiring that advance payments to the injured claimant by the tortfeasor’s liability insurer be credited against a subsequent judgment in favor of the claimant, notwithstanding the absence of a prior written agreement between the insurer and claimant. After being injured in a vehicle collision, the plaintiff, Keating, received payments totaling $8,853.35 for medical payments and $27,267.29 for lost wages from the defendant’s insurer. There was no agreement that these advance payments would be credited against any judgment Keating might receive. Following Keating’s filing of his suit, Contractors Tire pled payment and offset in its answer, and the court granted severance of the credit issue. The jury returned a verdict in favor of Keating for $114,000.00, which the trial court reduced by the amount of the advance payments made. In its opinion, the Alabama Supreme Court concluded:

We hold, therefore, that the trial judge did not err in allowing credit for the advance payments. Keating accepted advances from the corporate Defendant’s insurer, endorsed the drafts of payment, and received credit for his medical expenses with full knowledge of both the source and purpose of these advances. These payments were made during the two and one-half year lapse between the date of injury and date of verdict, thereby undoubtedly sparing Plaintiff the economic pressure which otherwise may have caused him to settle out of court to his disadvantage. Even if Plaintiff had received no judgment for his claim, he would have benefited to the extent of the payments received in advance.
We find unavailing the argument that the same insurer, in the absence of conduct amounting to waiver or fraud, should pay to the same person the same elements of damage again, merely because the insurer failed to get that person to sign a receipt evidencing an agreement to reduce possible future liability. We agree with the Supreme Court of South Carolina:
“The nonexistence of a receipt delineating the obvious desire to credit the payment against any future liability secured on the same claim is without legal significance.” Russell v. Ashe Brick Company, 267 S.C. 640, 230 S.E.2d 814, 815 (S.C. 1976).

Keating, 428 So. 2d at 626-27.

We agree with the rationale put forward in these cases. In addition, we are persuaded by the reasoning of one commentator for American Lau> Reports, Third, who has said that advance payment arrangements “have been designed to avoid criticisms which have been leveled at the liability insurance system on the ground that the injured party is normally in no financial position to await the outcome of a trial which might be long delayed and that therefore liability insurers are in a position to exert leverage in forcing a setdement more favorable than might otherwise be available because of the pressure of the injured party’s financial necessities.” W.E. Shipley, Annotation, Effect of Advance Payment by Tortfeasor’s Liability Insurer to Injured Claimant, 25 A.L.R. 3d 1091 (1969). Without question, the law favors the amicable setdement of controversies, and because of this, it is the duty of the courts to encourage parties to reach a compromise. See Burke v. Downing Co., 198 Ark. 405, 129 S.W.2d 946 (1939). Because it appears to us that all of this is precisely what Columbia Insurance on behalf of Adams Trucking was attempting to do in this case, it should not be penalized for this practice. Moreover, should this court do otherwise, a double recovery could well be the result. This court has often expressed its disapproval of double recoveries. See, e.g., Almond v. Cigna Property and Cas. Ins. Co., 322 Ark. 268, 908 S.W.2d 93 (1995). We hold that credit for some of the advances made to Douglas by Columbia Insurance should be allowed.

Douglas also argues that the payments from Columbia Insurance constituted payments from a third-party collateral source and, thus, could not be credited against damages awarded. This point has no merit. This Court has defined the “collateral source rule” as a “general rule that ‘recoveries from collateral sources do not redound to the benefit of a tortfeasor, even though double recovery for the same damage by the injured party may result.’ ” Bell v. Estate of Bell, 318 Ark. 483, 490, 885 S.W.2d 877, 880 (1994) (quoting Green Forest Pub. Schools v. Herrington, 287 Ark. 43, 49, 696 S.W.2d 714, 718 (1985) (quoting Amos, Adm’x v. Stroud & Salmon, 252 Ark. 1100, 482 S.W.2d 592 (1972)). However, for the collateral source rule to pertain, the third-party payment must be wholly independent of the tortfeasor. Overton v. United States, 6.19 F.2d 1299 (8th Cir. 1980); Black’s Law Dictionary 256 (7th ed. 1999); 22 Am. Jur. 2d Damages § 566 (1988). That certainly is not the case in the matter before us. Columbia Insurance, the source of the payments, was the liability carrier for the tortfeasor and, as a result, was not wholly independent. We conclude that under such circumstances, the collateral source rule does not apply.

Douglas further maintains that Columbia Insurance’s advance payments were voluntarily paid, and, because of this, a credit for those payments against the judgment amount should not be allowed. In TB of Blytheville, Inc. v. Little Rock Sign & Emblem, Inc., 328 Ark. 688, 946 S.W.2d 930 (1997), this court noted that in its past application of the voluntary payment rule, we said: “When one pays money on demand that is not legally enforceable, the payment is deemed voluntary. Absent fraud, duress, mistake of fact, coercion, or extortion, voluntary payments cannot be recovered.” TB of Blytheville, 328 Ark. at 693-94, 946 S.W.2d at 932 (quoting Boswell v. Gillett, 226 Ark. 935, 940, 295 S.W.2d 758 (1956)). See id. In Boswell v. Gillett, supra, one of the appellants, a tenant-partner, sought to recover rental amounts paid to his landlord because the landlord had not repaired slight damage to the leased theater building after a fire. We made it clear in that case that the voluntary payment rule applied where the payor continued to pay full rent without demanding the repairs.

In the case before us, the insurer did pay Loye Douglas advances and there was no agreement that the insurer would receive full credit for doing so. Nevertheless, it cannot be said that Columbia Insurance had no legal obligation to make such advance payments based on its liability. It is clear from the outset that the liability carrier was paying advances against future settlement or any damage award resulting from the liability of Adams Trucking to mitigate such damages. And Douglas, without question, considered the purpose of the advance payments to be exactly that. The voluntary payment rule simply does not apply to the facts of this case.

II. Extent of Offset

There still remains the question that even if an offset is permissible, what should the amount of the offset be? As already mentioned in this opinion, at a pretrial conference, the circuit court was persuaded that a special verdict form should be submitted to the jury in order to have verdicts reached on the various elements of damage. That was done. The purpose of the special verdicts was to facilitate a matching between advance payments and specific elements of damage awarded.

With the special verdict form, it is clear what the jury awarded as elements of damage. We must now ascertain what the advance payments from Columbia Insurance were intended to cover. We turn to the testimony of Loye Douglas at the posttrial hearing on this issue. Douglas described a meeting with the adjuster for Columbia Insurance where he bemoaned the fact that he would be unable to run his chicken farm for a period of time. The adjuster replied that that would not be a problem, which Douglas took to mean that “lost income” would be provided. The adjuster told him to go to the company that purchased his chickens and get an estimate for gross income that he would have earned in the next eight months. The adjuster also sought to determine from Douglas what expenses for operating the chicken houses, such as butane, electricity, and feed fids, would come out of that gross income figure. After the income estimates were set, the adjuster delivered a check to Douglas at about the same time each month. Douglas did not sign receipts or an offset agreement relating to these payments. At the same time, he testified that he did not expect to be paid twice.

It is clear to this court that the payments made by Columbia Insurance to Douglas over the nine-month period in the total amount of $63,111.33 were for lost income and that Douglas considered them as such. The payments for which we hold a credit should be allowed correspond to the jury’s award of $40,000 for lost earnings and profits. Hence, there is no balance due from Adams Trucking for this element of damage.

Loye Douglas also testified that Columbia Insurance paid his hospital and medical bills directly to the providers. The amount of these payments, as stipulated to by both parties, was $18,098.24. This corresponds to the jury award for medical expenses of $19,000, leaving an unpaid balance of $901.76. Douglas further testified that the carrier paid him the Blue Book value for the tractor and bought him a new mower, all of which totaled $18,625, as stipulated to by the parties. The jury awarded him $19,000 for personal property damages, leaving a balance due of $375.

The principal sum against which we do not believe an offset should apply is the $100,000 awarded for pain and suffering. Because it is obvious to us that the advance payments were earmarked for lost income and that the other payments went to medical expenses and property losses, we see no basis for concluding that a credit was contemplated between the parties for pain and suffering or that a double recovery resulted from the jury verdict. Indeed, the parties could not agree on a setdement figure which, no doubt, encompassed some award for pain and suffering. It would have been an easy matter for Columbia Insurance to have required signed receipts or a written agreement relating to all advance payments, stating that the payments would be a credit against any and all setdement amount or judgment. This was not done. We further decline to affirm an offset for the $8,900 paid by Columbia Insurance to reimburse Loye Douglas for hired help, as we conclude that this advance does not correspond to any of the jury’s special verdicts.

In sum, we hold that Adams Trucking is not entided to a credit or offset for all funds paid by its carrier but only for those amounts paid which specifically relate to medical expenses, property losses, and lost income, as awarded by the jury. This leaves Adams Trucking owing Mr. Douglas $100,000 for pain and suffering plus the differences between the amounts paid for medical expenses and property loss and the jury verdicts. The total amount owed by Adams Trucking is $101,276.76.

Though we affirm in part with respect to the grant of an offset, we reverse and remand for entry of a judgment consistent with this opinion.

       Although the initial lawsuit was filed by both Loye and Anna Douglas as plaintifis, only Loye Douglas brings this appeal.

       The total amount of these checks is actually $63,110.59. We will continue to use $63,111.33 for ease of reference.

       Though the stipulated amount for outside help was $8,904, the correct amount based on the record appears to have been $8,900.


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    Andra DILLARD, Annette Barry, and Joseph Nichols Dillard, Jr. v George NIX
    00-1454
    45 S.W.3d 359
    Supreme Court of Arkansas
    Opinion delivered June 7, 2001

      Frances Morris Finley, for appellant.

      Dover & Dixon, P.A., by: Monte D. Estes, for appellee.
   Ray Thornton, Justice.

Grace Marie Nix executed a will on February 2, 1979, and the will was attested on that date by the attorney who prepared the will and by his secretary. A codicil was added to the will on April 11, 1989, and the codicil was also witnessed by Eugene Fitzhugh, the attorney who prepared the will, and by his secretary Sheila Eoff White. Following Ms. Nix’s death, her surviving spouse, George Nix, appellee, offered the will and its codicil for probate on November 9, 1999.

Appellants, Andrea Dillard, Annette Barry, and Joseph Dillard, Jr., Ms. Nix’s children from a previous marriage, contested the validity of the will and its codicil on two grounds. Appellants argued that the witnesses who signed the attestation clauses did not have a sufficient recollection of the execution of the documents. Appellants also argued that even if the will and codicil were properly executed, Ms. Nix, by making numerous marks and interlineations on portions of the will expressed her intention to revoke the will and codicil.

The probate court conducted a hearing on the matter and found that the will and the codicil were valid and that the markings on the will did not reflect an intention to revoke the will, but rather, because the markings were not witnessed, they were of no legal significance and should not be considered as having any effect. Accordingly, the probate court ordered that the will and codicil be admitted to probate and appointed George Nix as personal representative of Ms. Nix’s estate. It is from this order that appellants bring this appeal, and we affirm the probate court.

We review probate proceedings de novo, and we will not reverse the decision of the probate court unless it is clearly erroneous. Amant v. Callahan, 341 Ark. 857, 20 S.W.3d 896 (2000). When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Id.

In their first point on appeal, appellants argue that Ms. Nix’s will should not have been admitted to probate because appellee failed to prove that the will had been properly executed. Specifically, .appellants argue that appellee failed to prove that the attesting witnesses remembered witnessing the will. Arkansas Code Ann. § 28-25-103 (1987) articulates the procedure to be followed when executing a will. The statute provides:

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

Id. Arkansas Code Ann. § 28-40-117 (1987) explains the procedure whereby a party proves the validity of an attested will. The statute in relevant part states:

(a) An attested will shall be proved as follows:
(1) By the testimony of at least two (2) attesting witnesses, if living at known addresses within the continental United States and capable of testifying; or
(2) If only one (1) or neither of the attesting witnesses is living at a known address within the continental United States and capable of testifying, or if, after the exercise of reasonable diligence, the proponent of the will is unable to procure the testimony of two (2) attesting witnesses, in either event the will may be established by the testimony of at least two (2) credible disinterested witnesses. The witnesses shall prove the handwriting of the testator and such other facts and circumstances, including the handwriting of the attesting witnesses whose testimony is not available, as would be sufficient to prove a controverted issue in equity, together with the testimony of any attesting witness whose testimony is procurable with the exercise of due diligence.
^ ‡ ^
(d) The provisions of this section as to the testimony of subscribing witnesses shall not exclude the production of other evidence at the hearing on the petition for probate, and the due execution of the will may be proved by such other evidence.

U.

In the case now on review, two people signed an attestation clause, stating that they had witnessed Ms. Nix acknowledge and sign her will. The testimony of both attesting witnesses was presented at the hearing on appellee’s petition. We conclude that the testimony of the two attesting witnesses was sufficient to prove the validity of the will. Specifically, Eugene Fitzhugh testified that he had drafted a will for Grace Nix in 1979. He testified that he remembered both Grace Nix and George Nix coming into his office on the day Ms. Nix requested that the will be drafted. Mr. Fitzhugh stated that he witnessed Ms. Nix sign her will and that he witnessed his secretary, Sheila White, sign Ms. Nix’s will. He further stated that the procedure followed by his office during the execution of a will was as follows: “[T]he client would sign ... well, first I would call the secretary into the ... to my office. The client would sign the will and then we, my secretary and myself would witness the will.” Mr. Fitzhugh also testified that he had stated in an earlier deposition that he did not remember the circumstances surrounding the signing of Ms. Nix’s will. However, he further stated that after reviewing his files, he was able to recall the circumstances surrounding the execution of Ms. Nix’s will on the day of the hearing on appellee’s petition. Mr. Fitzhugh testified that he would not have acted as a witness on Ms. Nix’s will without having seen Ms. Nix sign it first. He further stated that he remembered Ms. Nix coming into his office in 1989 and asking him to add the codicil to the will. Mr. Fitzhugh testified that he wrote the codicil on the will and that he and Ms. White signed the codicil as witnesses.

The testimony of Sheila White was also admitted in evidence. She stated that she had worked for Mr. Fitzhugh for six or seven years starting in 1977 and that she had often served as an attesting witness. She stated that the procedure that they always followed was to attest the will after the testator signed the will. Ms. White further stated that she could not specifically recall the circumstances surrounding the signing of Ms. Nix’s will in 1979. However, she noted that her signature was on the will and stated that she would not have signed her name as an attesting witness unless she had seen the testator sign the document. With regard to the codicil, Ms. White testified that while she did not specifically recall the circumstances surrounding the execution of the codicil, she would not have signed her name if she had not seen Ms. Nix sign the codicil on April 11, 1989. Ms. White further stated that although she did not have independent recollection of seeing Ms. Nix execute the will or the codicil, she was sure that the execution had been properly performed because it was her signature on the codicil, and at the time the will and codicil were executed, she was a notary public and she “never ever signed anything without seeing the person sign it.”

After hearing the testimony of Mr. Fitzhugh and Ms. White the probate judge found:

that based on the testimony of the attesting witnesses, Eugene Fitzhugh and Sheila EoffWhite, the court finds that... the proponent of admission to probate of the original will and the codicil has met his burden of proving that the original will and codicil had been executed in all respects according to law when the decedent was competent to do so and acting without undue influence, fraud, or restraint, and has not been revoked.

After reviewing the applicable statutory provisions and the facts surrounding the execution of Ms. Nix’s will, we conclude that the trial court did not err in ruling that appellee satisfied the requirements outlined in Ark. Code Ann. § 28-40-117(a)(1) for proving an attested will by the testimony of two attesting witnesses. The two attesting witnesses were credible disinterested witnesses. Mr. Fitzhugh and Ms. White each testified that his or her signature was on Ms. Nix’s will as attesting witnesses. In addition to this proof that they had attested to the validity of the will, Mr. Fitzhugh was able to provide testimony regarding the circumstances surrounding Ms. Nix coming into his office and asking him to draft the will and later the codicil. He also testified that he and his secretary routinely acted, as witnesses to wills prepared for his clients and that they would not sign the document until the testator had signed the will and requested that they attest it. Ms. White testified that she would not have acted as a witness to the will or codicil if they had not been properly executed. Accordingly, we cannot say that the probate judge’s finding that Ms. Nix’s wül and codicil were properly executed and attested as required by law was clearly erroneous.

Appellants urge that in Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (1991), we established an additional requirement that disinterested witnesses called upon to prove a will must remember the exact circumstances surrounding the execution of the will, and contend that because the witnesses in the present case do not have such a detailed recollection, Ms. Nix’s wiü and codicil should not have been admitted to probate. Appellants’ assertion is incorrect. In Sharp, the will did not contain an attestation clause and the probate court admitted it into probate based on the testimony of one disinterested witness. We held that admission of the will into probate was erroneous based on the requirement of Ark. Code Ann. § 28-40-117. Sharp, supra. In the present case, Ms. Nix’s will was attested by two witnesses, who each signed an attestation clause acknowledging the proper execution of the will in compliance with the statute. The facts in Sharp are inapposite to the facts in the case now on review.

In their second point on appeal, appellants argue that Ms. Nix’s will should not have been admitted into probate because she revoked the document prior to her death. Specifically, appellants argue that the “cross-throughs,” “interlineations,” and “mark-outs” on the face of the document was an attempt by Ms. Nix to revoke her will by obliteration. Arkansas Code Annotated § 28-25-109 (1987) explains the process whereby a will may be revoked. The statute provides in part:

(a) A will or any part thereof is revoked:
(1) By a subsequent will which revokes the prior will or part expressly or by inconsistency; or
(2) By being burned, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.
(c) Where there has been a partial revocation, reattestation of the remainder of the will shall not be required.

Id.

On this issue the probate judge found:

That it is the further finding of this court that no proof was adduced that any of the interlineations, correction or markings found on the face of the original will were placed there with any intent to revoke the original will, and that said interlineations, corrections and markings, having not been witnessed or attested, are of no legal significance.

We cannot say that the probate judge’s findings were clearly erroneous. The changes to the will made by Ms. Nix were of no legal significance. Ms. Nix made several marks on her will. However, appellants have failed to prove that Ms. Nix’s changes met the requirement of Ark. Code Ann. § 28-25-109 for revocation of her will because appellants did not establish that Ms. Nix intended to revoke her will by obliteration. Appellants argue that the fact that there were at least twenty-five interlineations and marks on the will indicates that Ms. Nix intended to revoke her will by obliteration. Appellant Barry testified that “my mother made some of those mark-throughs or changes while I was present. It was my impression that my mother was intending to revoke this will. She was unclear about what she wanted at the time. She was using this as sort of a work in progress.” The impact of this testimony was diminished by Ms. Barry’s additional testimony in which she stated that there “was an understanding between her [Ms. Nix] and George that they both have wills when they married and that is what they did.” The trial court concluded that the markings on the will did not support a finding that Ms. Nix intended to revoke her will. We conclude that the trial court’s finding was not clearly erroneous.

Affirmed.


author: Per Curiam.

text:
    John R. BUTCHER v. STATE of Arkansas
    CR 01-484
    45 S.W.3d 378
    Supreme Court of Arkansas
    Opinion delivered June 7, 2001

      Petitioner, pro se.
    No response.
   Per Curiam.

In 1999, John R. Butcher was charged in the Circuit Court of Garland County in case CR 99-428-1 with felony theft by receiving. On February 23, 2000, Butcher filed a pro se motion seeking the return of property seized from him in connection with the charge. On April 20, 2000, the court granted the State’s motion to nolle prosequi the charge. On June 8, 2000, the court entered an order denying the motion for return of the seized property.

On April 26, 2001, Butcher filed in this court a pro se motion to proceed with a belated appeal of the order which denied his motion for return of seized property. The return of property seized incident to a criminal prosecution is governed by Ark. R. Crim. P. 15.2. Rule 15.2(e) provides that an order denying a motion for return of property is reviewable on appeal in regular course as a final order.

The issues at hand are not whether the court’s order denying the motion was erroneous, but rather whether the attorney who represented petitioner before the nolle prosequi order was entered was obligated to appeal from the order denying the motion for return of seized property; and, if counsel was not so obligated, whether petitioner has stated good cause for his failure to file a timely notice of appeal and pursue the appeal.

Rule 16 of the Rules of Appellate Procedure — Criminal provides in pertinent part that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal, unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause. Petitioner was not convicted of the offense with which he was charged. Thus, counsel’s obligation ended when the nolle prosequi order was entered.

Petitioner Butcher contends that he failed to file a pro se notice of appeal from the order denying the motion for return of seized property because he was not skilled in legal matters and mistakenly filed a civil rights action in federal court before pursuing his State remedies. We find no ground to grant a belated appeal and deny the motion.

If an appeal from an order pertaining to petitioner’s property rights is civil in nature, as property matters are generally considered to be, then there is no provision in the prevailing rules of procedure for a belated appeal in a civil case. Even if the matter were considered to be criminal in nature, a petitioner is not permitted to proceed with a belated appeal in a criminal matter, unless he demonstrates some good cause for his failure to perfect an appeal. Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). The fact that a petitioner is proceeding pro se does not in itself constitute good cause for the failure to conform to the prevailing rules of procedure. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983). As petitioner has stated no good cause for his failure to perfect an appeal of the court’s order, there is no basis to permit a belated appeal.

Motion denied.

       Petitioner Butcher states in his motion that it pertains to the April 19, 2000, order denying the motion for return of the property. As the record does not reflect an order entered on that date and it is clear from the motion that it pertains to the June 8, 2000, order, it may be assumed that petitioner merely misstated the date of the order.


text:
    Rodney A. SCALES v. STATE of Arkansas
    CR 01-549
    45 S.W.3d 378
    Supreme Court of Arkansas
    Opinion delivered June 7, 2001

      Johnson & West, by: Dale West, for appellant.
    No response.
   Per Curiam.

Appellant Rodney A. Scales, by and through his attorney, has filed a motion for rule on the clerk. The motion reflects that the record on appeal was due to be filed on December 21, 2000. On December 22, Appellant’s attorney filed a motion for extension of time to file the record on appeal. The trial court granted the extension on January 8, 2001. The record was tendered with this court’s clerk on March 23, 2001. Appellant’s attorney, Dale West, acknowledges that both the motion for extension and the order granting the extension were untimely, and he admits responsibility for tendering the record late.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam) (citing Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam)).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).


author: W.H. ”Dub” Arnold, Chief Justice.

text:
    Michael RAMAKER v. STATE of Arkansas
    CR 00-449
    46 S.W.3d 519
    Supreme Court of Arkansas
    Opinion delivered June 14, 2001

      Morris & Morris P.A., by: Tim R. Morris, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   W.H. ”Dub” Arnold, Chief Justice.

Appellant, Michael Ramaker, was convicted of first-degree murder and sentenced to thirty-five years’ imprisonment in the Arkansas Department of Correction for the shooting death of his girlfriend, Ann Swee. We affirm his conviction and sentence.

On August 1, 1998, appellant, after allegedly checking a 12-gauge shotgun to ensure there was no ammunition, pointed the shotgun at Ms. Swee from a distance of eighteen to twenty-four inches and pulled the trigger. The gun discharged, and Ms. Swee died almost instantly from a wound to the left side of her face and head. Appellant was charged with capital murder. His defense at trial was that the shotgun had a defect that kept him from establishing that the gun was loaded. Many pretrial motions were made, including a motion to exclude photographs of the victim.

During the trial, the State presented an Arkansas Crime Laboratory expert who tested the weapon eight times and found no malfunction. Appellant’s expert stated that he tried the weapon 150 times, and the weapon had malfunctioned 10 percent of the time. He stated that he saw a shell spring from the magazine onto a carrier assembly four times and that someone could load a round without one knowing it. Prior to trial, the Benton County Sheriff’s Department had cleaned the weapon.

During the trial, appellant’s expert witness demonstrated the operation of the weapon; it malfunctioned twice. The first time was exactly like he had seen during his tests. The second time was a new malfunction. The gun’s bolt jammed and could not be dislodged. During a recess, the trial judge ordered the expert to unjam the gun while in the presence of a prosecutor’s assistant. The gun was unjammed, although a slide release button was broken in the process. The trial judge informed the jury of this process and event. Appellant strenuously objected to anything that entailed an unjamming of the gun. The evidence was submitted to the jury for its use in deliberations.

During trial, appellant made a motion for directed verdict. He claimed that the State had failed to establish the charges against him. He also objected to gruesome photographs of the victim’s face. He further asked that his request for a polygraph be admitted before the jury, which the State adamantly opposed, and the trial court denied. Appellant also objected to the weapon’s introduction as evidence due to the fact that it had been cleaned.

Appellant was convicted. It is from that conviction that he now appeals. He asserts the following points for reversal:

1) The trial court abused its discretion in allowing the 12-gauge shotgun to be delivered to the jury as evidence;
2) The trial court erred when it allowed the prosecution to introduce a redacted statement that excluded references to the defendant’s offer of taking a polygraph test because it substantially prejudiced the defense;
3) The trial court abused its discretion in allowing prejudicial, inflammatory, and cumulative photographs of the victim to be admitted as evidence;
4) The trial court erred when it failed to grant the motion for directed verdict because the evidence failed to support a conviction for first-degree murder.

We affirm.

I. Sufficiency of Evidence

Double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence before other points are raised. See Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998); Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001); Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996); Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). On appeal, we review the evidence in the fight most favorable to the appellee and consider only the evidence that supports the verdict. Barr v. State, supra.

Appellant was convicted of murder in the first degree. On appeal, he challenges the sufficiency of the evidence to support his conviction; however, he was charged with capital murder and, at trial, when making his motions for directed verdict, he only moved as to capital murder and not as to the lesser-included offense of murder in the first degree, for which he was ultimately convicted. This Court has held that in order to preserve challenges to the sufficiency of the evidence supporting convictions for lesser-included offenses, defendants are required to address the lesser-included offenses, either by name or by apprising trial courts of the elements of the lesser-included offenses, in their motions for directed verdict. See Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996). As appellant failed to move for a directed verdict on the lesser-included offense of first-degree murder, he is procedural^ barred from challenging the sufficiency of the evidence on appeal.

II. Admission of Shotgun into Evidence

Appellant does not dispute that he caused Ms. S wee’s death; he contends, rather, that the shooting was accidental because he believed that the shotgun was unloaded. Consequently, the primary factual issue at trial was whether a malfunction caused the shotgun to be ready to fire, despite allegedly appearing unloaded to the appellant. On appeal, the appellant raises several arguments involving the shotgun. He argues that the trial court erred in admitting the gun after hearing testimony that the police had cleaned it prior to the last of a series of test firings, by ordering the weapon to be repaired after it jammed during the testimony of the appellant’s ballistics expert, and in commenting on the weight of the shotgun as evidence.

A. Alleged Police Tampering

Appellant first argues that the trial court erred in admitting the gun as evidence because there was direct evidence of police tampering. During the testimony of Investigator Jim Yarber, appellant made a chain-of-custody objection to the admission of the shotgun. He alleged that the police cleaned the gun prior to the last of a series of test firings and, as a result, that it was no longer the same weapon that he used in the shooting. The trial court did not rule on the objection but allowed Investigator Yarber to testify about the circumstances of the cleaning. Yarber stated that the gun barrel was removed to access the firing pin and that the gun was cleaned. He also testified that the gun was reassembled after the cleaning, that no parts were replaced or altered, and that no one “manipulated the gun in any way.” Appellant’s counsel then conducted a voir dire examination, and Yarber testified that no one videotaped the cleaning of the gun. At the conclusion of the voir dire examination, the appellant stated that he had “no objection” to the admission of the shotgun. The gun was then admitted into evidence.

On appeal, appellant claims that the trial court erred in admitting the gun because the cleaning removed soot and other dirt that caused the malfunction that he alleges occurred on the night of the shooting and, consequently, that that malfunction could no longer be demonstrated for the jury. The State asserts that appellant’s argument on this issue is procedurally barred as he stated that he no longer had an objection to the admission of the gun into evidence after the circumstances of the cleaning were developed through Investigator Yarber’s testimony. We agree with the State.

We have held that when an objection is withdrawn, it is as though the objection was never made. See Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). The appellate court, moreover, will not consider arguments that are raised for the first time on appeal. See Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). Therefore, although he had made the chain-of-custody objection, once he stated that he then had “no objection” to the evidence, it was as though he had never made the objection and his argument on this point is, therefore, barred on appeal.

B. Trial Court’s Order to Repair

The appellant next argues that the court abused its discretion when it ordered experts from both sides to repair the gun after it jammed during the State’s cross-examination of the appellant’s expert. Before the case was submitted to the jury, the prosecutor noted that the malfunction that caused the shotgun to jam was not the same malfunction that the appellant claimed occurred on the night of the shooting, and he requested that the trial court allow the gun to be restored to “working order” to enable the jury to view the gun in substantially the same condition as it existed at the time of the crime. The trial court ordered the repair over the appellant’s objection. The gun was operable after the repair, but the slide release was broken. Appellant now argues that the shotgun, in its jammed condition, proved his assertion that it malfunctioned on the night of the shooting and, thus, the repair prejudiced him by removing “direct exculpatory evidence” from the jury. He also intimates that, by ordering the repair, the trial court exhibited a bias in favor of the State. We disagree.

Arguably, the trial court may have abused its discretion by ordering a repair of the gun, when the appellant’s very defense was that the gun malfunctioned on the night the victim was shot. Still, the appellant must show that he was prejudiced by the trial court’s decision to submit the repaired gun to the jury. This Court will not reverse an evidentiary ruling absent a showing of prejudice. Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996); Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996). As the gun had already malfunctioned twice in the presence of the jury, the repair would not seem to diminish the appellant’s ability to prove that the gun was prone to malfunction; in fact, it would seem to work, to the contrary, in his favor. Certainly, he was as likely as the State to benefit from the repair because his defense turned on whether the gun could be ready to fire despite appearing unloaded when it was “racked open.” Appellant had, in fact, stipulated to making dummy rounds available to the jury so that it might test the gun to see if it appeared “unloaded” when it was actually loaded. Therefore, if the jam had not been repaired, the jurors would not have been able to do what the appellant wanted them to do, which was “rack” the gun to determine whether it appeared unloaded but ready to fire. In short, we hold any amount of error committed by the trial court on this issue to be harmless, as appellant is unable to demonstrate prejudice as a result. See Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001).

C. Trial Court’s Comment on Evidence

The appellant contends that the trial court improperly commented on the evidence when it admonished the jury about the measures that were taken to repair the gun. His argument is twofold. First, he contends that the trial court’s reference to the slide release button as “working properly up until today” amounted to a comment on the credibility of his expert witness. Second, he claims that the trial court commented on the weight of the shotgun as evidence when it advised the jury that it ordered experts from both sides to “get the gun out of the jammed condition it was in because I saw that as perhaps interfering with your study and use of it as evidence.” We hold appellant’s argument to be procedurally barred, as he did not lodge an objection or move for a mistrial when the court advised the jury of the shotgun’s repair.

This Court will not consider arguments on appeal in the absence of a specific, contemporaneous objection at trial. See Johnson v. State, 342 Ark. 186, 27 S.W.3d 405 (2000). In this case, appellant did not object at the time the court advised the jury of the repair. His initial objection to the trial court’s order to repair the gun certainly would not preserve this issue for appeal because it did not encompass the trial court’s comments to the jury. See Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000) (appellants are limited by the scope and nature of the arguments they made at trial.)

III. Appellant’s Offer to Take Polygraph

Appellant argues that the trial court erred when it allowed the State to redact his requests to take a polygraph exam from the tape recording and the transcript of one of his custodial statements. At trial, appellant objected to the redactions because they removed the implication that he told the truth when he stated that he believed the gun was unloaded. The trial court, citing Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990), overruled appellant’s objection. On appeal, appellant acknowledges that Wingfield prohibits the admission of evidence of an accused’s willingness to take a polygraph, but he argues that the application of the rule in this case interfered with his ability to present his defense. Appellant suggests that this Court adopt Wisconsin’s view, as expressed in State v. Santana-Lopez, 613 N.W.2d 918 (2000), that an offer to take a polygraph examination can be admissible to show consciousness of innocence. We decline to adopt this view.

Arkansas Code Annotated § 12-12-704 (Repl. 1999) provides that the results of a polygraph exam “shall be inadmissible in all courts in this State.” The only exception to this rule occurs when both parties stipulate to the admissibility of the polygraph results in writing. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985). The United States Supreme Court has held that because polygraph results only serve to bolster or attack a witness’s veracity, rules barring their admissibility do not abridge an accused’s right to present a defense. See United States v. Scheffer, 523 U.S. 303 (1998). The prohibition against the admission of polygraph results extends to a witness’s willingness or reluctance to be examined as evidence of consciousness of innocence or guilt. See Wingfield, supra. This rule, like the bar against polygraph results, only prevented the appellant from bolstering his own credibility. He was still able to introduce his version of the shooting through his custodial statements and through the testimony of his expert, who corroborated his claim that a malfunction caused the gun to be ready to fire. As such, the appellant cannot show the prejudice upon his right to present a defense. We, therefore, find no error by the trial court on this point.

IV Admission of Photographs into Evidence

During the testimony of Investigator Mike Sydoriak, the State sought the admission of a series of photographs, sequentially numbered as Exhibits 35 through 37, that depicted the location of the victim’s body and the nature of her wounds. The appellant objected, alleging that Exhibits 35 and 36, which, are close-ups of the victim’s gunshot wound, were inflammatory and cumulative to the medical examiner’s testimony. He further alleged that Exhibit 37 did not accurately reflect the scene and that it was cumulative of photos that were already admitted. The court admitted Exhibit 35 because it depicted the nature and location of Ms. Swee’s wound, and it admitted Exhibit 37 because it showed that stippling was present at the scene. The trial court agreed that Exhibit 36 was cumulative, however, and sustained appellant’s objection regarding that photo.

On appeal, appellant contends that the trial court erred when it admitted Exhibit 35 because it had little probative value, it was gruesome, and it was cumulative to other photos that depicted the victim. He further argues that the trial court erroneously took a “carte blanche” approach to the admission of the photo when it failed to weigh the probative value of the photo against the danger of unfair prejudice. Regarding the admissibility of photos, this Court has stated the following:

The mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. (Citation omitted.) Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. (Citation omitted.)

Jones v. State, 336 Ark. 191, 209, 984 S.W.2d 432, 441 (1999) (quoting Jefferson v. State, 328 Ark. 23, 941 S.W.2d 404 (1997), and Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994)). We have further held that the nature and extent of a victim’s wounds are relevant to a showing of intent, which may be inferred from the type of weapon used, the manner of use, and the nature, extent, and location of the wounds. Even if photographs are inflammatory or prejudicial in the sense that they show human gore repulsive to the jurors, they are nevertheless admissible at the discretion of the trial court if they help the jury understand the accompanying testimony. See Jones v. State, supra; Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). It is only when an inflammatory or gruesome photograph is without any valid purpose that it should be excluded. Id. As in all evidentiary matters, the admission of photos rests within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999).

The record reflects that the trial court viewed the photos and asked the prosecutor to explain the necessity of admitting both close-up photos of the victim’s face. After listening to the prosecutor’s explanation, the trial court admitted Exhibit 35 because “it shows the nature and location of the wound and that is definitely relevant in a homicide,” and it excluded Exhibit 36 as cumulative. Clearly, the trial court did not use a “carte blanche” approach in its decision in this regard, as appellant has asserted; and, given the basis for his rulings, we cannot say that the trial court abused his discretion in admitting Exhibit 35.

Affirmed.


text:
    Michael Anson THOMAS v. STATE of Arkansas
    CR 00-1185
    45 S.W.3d 818
    Supreme Court of Arkansas
    Opinion delivered June 14, 2001

      John W. Cone, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   W.H. ”Dub” Arnold, Chief Justice.

Appellant, Michael Anson Thomas, brings the instant appeal challenging the Jefferson County Circuit Court’s decision rescinding its April 6, 2000 order transferring his case to juvenile court. Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. 1-2(b)(1) and 1-2(d) (2000). Thomas was charged with committing a terroristic act and battery in the first degree. At the time of the offense, he was sixteen years’ old. On April 4, 2000, the circuit court held a hearing pursuant to Ark. Code Ann. section 9-27-318 (Supp. 1999) and entered an order on April 6, 2000, transferring the matter to juvenile court. Approximately two weeks later, on April 20, 2000, the State filed a motion for reconsideration. Following a second hearing on June 30, 2000, the circuit court filed an order on July 5, 2000, rescinding its prior transfer order and retaining jurisdiction over appellant.

According to the trial court, it erroneously granted appellant’s motion to transfer based upon inaccurate information, including a belief that the juvenile authorities possessed extended jurisdiction to take further action regarding the appellant when he turned twenty-one. In response, Thomas argued that the trial court lost jurisdiction to modify its prior order because it failed to act within thirty days of the State’s filing its motion for reconsideration. In other words, the motion was deemed denied on May 22, 2000, before the hearing took place. For its part, the court explained that the matter was scheduled at the “first available date.”

Jurisdiction

Appellant’s sole point on appeal challenges the trial court’s decision to retain jurisdiction. Thomas argues that the circuit court erred by rescinding its order transferring him to juvenile court because it lacked jurisdiction over him at the time it entered the order. Specifically, Thomas maintains that either the circuit court lost jurisdiction over him on April 6, 2000, the day the transfer order was filed, or May 22, 2000, the day the State’s postjudgment motion was deemed denied.

The State responds that the circuit court’s decision was proper in light of Ark. R. Crim. P. 33.3 (2000), governing posttrial motions, or Ark. R. Civ. P. 60(a) (2000), addressing motions seeking relief from a judgment, decree, or order. We disagree. Rule 33.3 applies to facts not present in the instant case, namely, when a person is “convicted of either a felony or misdemeanor.” Rule 60 provides a vehicle for the trial court to correct errors or mistakes or to prevent the miscarriage of justice in civil cases. We have never applied this rule to criminal cases. See State v. Dawson, 343 Ark. 683, 38 S.W.3d 319 (2001); Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000); McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999).

Here, the State simply failed to pursue its available remedy by filing a direct and timely appeal within thirty days of the circuit court’s April 6, 2000, transfer order. See Ark. R. App. P. — Crim. 2 (2000). In light of the State’s failure to pursue an appeal from the circuit court’s order transferring appellant’s case to juvenile court, and the circuit court’s ensuing lack of jurisdiction, this court never acquired appellate jurisdiction. Therefore, we dismiss the appeal.


author: Donald L. Corbin, Justice.

text:
    MAY CONSTRUCTION COMPANY and Ruffin Building Systems, Inc. v. RIVERDALE DEVELOPMENT COMPANY, LLC
    01-121
    45 S.W.3d 815
    Supreme Court of Arkansas
    Opinion delivered June 14, 2001

      Eichenbaum, Lile & Hester, P.A., by: Richard L. Ramsay, for appellant May Construction Company.

      Wright, Lindsey & Jennings LLP, by: David M. Powell, for appellant Ruffin Building Systems, Inc.

      Kaplan, Brewer, Maxey & Haralson, P.A., by: Philip E. Kaplan and Regina Haralson, for appellee.
   Donald L. Corbin, Justice.

Appellants May Construction Company and Ruffin Building Systems, Inc., appeal the orders of the Pulaski County Circuit Court denying their motions to stay proceedings filed by Appellee Riverdale Development Company, LLC, in the Pulaski County Circuit Court. For reversal, May and Ruffin argue that it was error for the trial court to deny their motions for a stay because the parties had contracted to settle disputes via arbitration, and the arbitration proceedings should go forth prior to the commencement of any circuit court proceedings. This court previously denied May’s petition for a writ of prohibition in this matter in May Constr. Co. v. Thompson, 341 Ark. 879, 20 S.W.3d 345 (2000). As this is a second appeal, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (a) (7). We now dismiss the instant appeal, as the orders being appealed from are not final, appealable orders.

The record reflects that on August 30, 1996, Riverdale entered into a contract with May for construction of a commercial office building located at 2102 Brookwood Drive in Little Rock. Included in the project was May’s erection of a pre-engineered metal building manufactured by Ruffin, from whom May purchased the materials for construction. Disputes began arising between May and Riverdale regarding completion of the project. The contract entered into by May and Riverdale included a provision requiring arbitration of contract disputes between the parties. May initiated an arbitration proceeding with the American Arbitration Association on May 13, 1999, claiming that Riverdale had failed to pay approximately $33,000 owed under the contract. Riverdale, in turn, filed a complaint in circuit court on May 25, 1999, alleging that May failed to perform certain requirements under the contract and also acted negligently and deceitfully in the performance of the work and the construction of the building. Riverdale also filed a motion to stay arbitration with the circuit court on June 1, 1999. In an order dated June 7, 1999, the circuit court denied the motion to stay arbitration, but did stay discovery in the circuit court action, pending resolution of the arbitration proceeding.

Soon after discovery began in the arbitration proceeding, Riverdale complained that May had failed to comply with its repeated requests for certain discovery. On October 14, 1999, Riverdale sought an order from the arbitrator, Bill S. Clark, compelling May to comply with discovery requests. Clark granted Riverdale’s motion to compel discovery on November 1, 1999, thereby ordering May to furnish all the items requested in the motion. In addition, Clark also issued a subpoena duces tecum to William Oldner, a design engineer with Ruffin. May continued to ignore Riverdale’s repeated attempts to view the requested documents, as well as their attempts to depose Oldner. As a result, Riverdale filed a motion to dismiss the arbitration, or in the alternative, a motion for sanctions.

On January 21, 2000, Riverdale filed a motion to compel discovery in circuit court, arguing that May should not be allowed to recover the alleged breach damages, and that neither Oldner nor any other representative of Ruffin should be allowed to testify at the arbitration hearing without producing the requested discovery materials. Subsequently, Riverdale filed a motion to continue the arbitration, due to its pending motion in circuit court. May countered that Riverdale’s motion was simply an attempt to delay arbitration due to its own failure to properly perform discovery before the scheduled arbitration hearing.

The circuit court held a hearing on Riverdale’s motion on February 3, 2000, and issued its orders from the bench. Thereafter, on March 2, 2000, the circuit court entered three orders, nunc pro tunc, on March 2, 2000. The first order required May to collect and have available for inspection and copying all of its documents relating to the contract dispute within three days from the date of the order, and allowed Riverdale to redepose Oldner and obtain relevant information from Ruffin, if it so chose. Otherwise, May would be barred from relying on information or testimony from Ruffin during the arbitration hearing. The circuit court also stayed the arbitration until May complied with its order. The second order required Riverdale to file its notice of deposition of Oldner in the appropriate Louisiana court. The circuit court also stated that it retained jurisdiction over the parties and the subject matter to enforce the order. In its final order, lacking the court’s file mark, the circuit court ordered May to produce all requested documents and vendor files. The court found further that because May had refused to answer Riverdale’s first request for admissions, the requests were deemed admitted.

These orders were followed by a petition for a writ of prohibition filed by May with this court on March 24, 2000. Upon review, this court determined that May’s petition was actually a petition for writ of certiorari, because May sought relief for actions already taken by the circuit court. After determining that May failed to demonstrate that there had been a plain, manifest, clear, and gross abuse of discretion, this court denied May’s petition. This court went on to state that it was not evident from the record that the circuit court had exceeded its jurisdiction by issuing orders to enforce the arbitrator’s discovery orders.

On May 19, 2000, Riverdale filed an amended complaint in circuit court, adding Ruffin as a defendant, and asserting claims against it for negligence, breach of implied warranty, defective product, and fraud. In response, both May and Ruffin filed motions to stay the circuit court proceedings, pending arbitration, because they alleged that the amended complaint was actually a contract claim, subject to arbitration. On July 14, 2000, May also filed a motion to vacate the March 2 orders, contending that they had complied with the circuit court’s orders regarding discovery. Riverdale objected to the motion to vacate on the basis that it was not timely filed, pursuant to Ark. R. Civ. P. 60(a). The circuit court denied each motion, and this appeal followed.

For their sole point on appeal, May and Ruffin argue that the circuit court abused its discretion in refusing to stay the court proceedings until the arbitration could be resolved. May and Ruffin assert that the parties’ contract provides for arbitration and that due to the strong preference for arbitration, it should go forward first. Moreover, May and Ruffin contend that judicial economy favors staying the circuit court proceedings, as the arbitration may dispose of the circuit court claims. Riverdale counters that the circuit court’s orders denying the stay are not final, appealable orders. We agree.

At issue is the trial court’s denial of May’s and Ruffin’s motion to stay the circuit court proceedings. We disagree with May’s and Ruffin’s assertions that their pleadings are actually motions to compel arbitration. The circuit court has in no way nullified the agreement between May and Riverdale to arbitrate the contract claims. Only after continued disputes regarding discovery, did the circuit court stay arbitration, pending May’s compliance with its discovery orders. May chose not to appeal that order; instead, both May and Ruffin filed motions asking the circuit court to stay its proceedings. In State v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969), this court held that an order regarding a motion to stay is a matter lying within the sound discretion of the trial court. This court then refused to treat an order denying a stay as a final, appealable order, stating that “[i]f the chancery court was in error through manifest abuse of discretion in refusing to stay, that error is correctable on appeal from a judgment adverse to appellants at the proper time.” Id. at 218, 438 S.W.2d at 39. Accordingly, the circuit court’s orders denying the motions to stay are not reviewable at this time.

Appeal dismissed.

       Although May’s notice of appeal includes the circuit court’s order denying its motion to vacate, May does not specifically argue on appeal that the trial court erred in refusing to vacate its previous orders. In any event, we note that the motion to vacate was not filed within the ninety-day time period, as required under Rule 60(a), and thus was properly denied as untimely.

       A court has the authority to stay further proceedings where a party fails to comply with discovery orders, pursuant to Ark. R. Civ. P. 37(b)(2)(C).


text:
    Rodney RUTLEDGE v. STATE of Arkansas
    CR 00-1146
    45 S.W.3d 825
    Supreme Court of Arkansas
    Opinion delivered June 14, 2001

      Darrell F. Brown & Associates, by: Alvin Schay, for appellant.

      Mark Pryor, Att’y Gen., for appellee. by: Michael C. Angel, Ass’t Att’y Gen.,
   Robert L. Brown, Justice.

The appellant, Rodney Rutledge, appeals from a judgment of conviction for capital murder and a sentence of life without parole. He raises two points in his appeal: (1) the trial court erred in not granting his motion for directed verdict; and (2) the circuit court erred in denying his motion for declaration of a mistrial based on a material violation of the discovery rules as set out in our Rules of Criminal Procedure. Neither point has merit, and we affirm.

The pertinent facts of this case are garnered from the testimony of the victim’s sister, Korey Leavy, Little Rock police officers, and other witnesses at trial. On September 1, 1998, Tammy Williamson, the mother of Rutledge’s twin children, was at the home of her sister, Korey Leavy, in Little Rock. Rutledge had called Williamson earlier that day and went to Leavy’s home later that morning. After arriving, Rutledge asked Williamson to come outside with him, but she declined and requested that he come into the house instead and sit down. At some point, he walked away from the doorway of Leavy’s house, but later he returned, entered the house, and moved toward Williamson, who was seated in a chair. He hit Williamson on the left side of her head with the butt of a pistol. He then grabbed her by the hair, pulled her out of her chair, and dragged her to the kitchen. In the process, he pulled her shirt off. Leavy attempted to pick her sister up off the floor by grabbing her around the waist but was unsuccessful. She also asked Rutledge “to let her [sister] up.” He refused. Rutledge next pointed the .32 caliber pistol to Williamson’s head and shot her. Leavy did not remember Rutledge being shot in his hand during the fracas. According to the State’s chief medical examiner, Dr. William Quentin Sturner, the fatal gunshot wound was fired at contact or near-contact range.

After the shooting, Leavy ran to the back of her house and called the Little Rock Police Department. She continued to observe Rudedge through a window and saw him carry Williamson over his shoulder towards his car. Rutledge then placed the victim in the back seat and drove away. Litde Rock police officers apprehended Rudedge as he was about to cross the 1-30 bridge over the Arkansas River, and he was placed under arrest. He was taken to the University Hospital in Litde Rock because of a wound to his left hand.

At trial, Rudedge, who was twenty-six years old at the time of the murder, stated that he and Williamson had grown up together. He admitted to having a criminal record and said that he had been drinking and experimenting with drugs since eleven or twelve years of age. He testified that he had been in prison in 1997 or 1998, and that due to his prior contact with Williamson, he believed that she would accept him again after prison, as she had in the past. He was released from prison on Friday, August 28, 1998, four days before the murder. Upon his release, Williamson told him that she had met somebody else. He admitted that he then sought out drugs and got high. In the process, he apparendy burglarized a pharmacy, and Litde Rock police officers began looking for him. He stated that he was “on drugs” constandy after his release from prison and had not slept. He said that on the day of the murder, his mother dropped him off at his grandmother’s house so that his grandmother could take him to his parole officer. At that point, he stated that he wanted to see Williamson, and he called her. He then grabbed some pills and a pistol off the top of his grandmother’s refrigerator, took the keys to her car, and drove to Leavy’s house. He testified that while at Leavy’s house, he hit Williamson with the pistol and the pistol went off, with a resulting gunshot wound to his left hand. He said he did not realize immediately that the bullet from his pistol had also hit Williamson.

The jury convicted Rutledge of capital murder, and he was sentenced to life in prison without parole.

I. Sufficiency of the Evidence

Rutledge argues that the circuit court erred in refusing to grant his motion for a directed verdict. This court will consider an appellant’s insufficiency-of-the-evidence argument prior to considering other arguments. See Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996). When the court conducts such a review, it does so using the following standard, as set out in Williams v. State, 331 Ark. 263, 962 S.W.2d 329 (1998):

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597.(1995). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the state. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

Williams, 331 Ark. at 265, 962 S.W.2d at 330 (quoting McGehee v. State, 328 Ark. 404, 410, 943 S.W.2d 585, 588 (1997)). Premeditation and deliberation may be inferred from the type and character of the weapon used, the manner in which the weapon was used, the nature, extent, and location of the wounds inflicted, and the conduct of the accused. See Chase v. State, 334 Ark. 274, 973 S.W.2d 791 (1998).

In this case, Rutledge called the victim from his grandmother’s house, took a .32 caliber revolver from the top of her refrigerator, and drove his grandmother’s car to the home of the victim’s sister where the victim was visiting. He talked to Williamson from the doorway and then walked away when she refused to come outside. He was frustrated by this and later returned with a pistol which he used to hit Williamson on the left side of her head. Following that, he dragged Williamson from her chair by her hair into the kitchen and told her to “get [her] motherfucking ass up.” He then shot her at very close range in the right side of her head with the pistol. As already indicated, Dr. Sterner testified that due to the grayish black sooty material around the wound, the barrel of the gun was “extremely close, if not touching, the hair or scalp area” of Williamson, when the gun was fired. After shooting her, he carried the victim over his shoulder to his grandmother’s car and drove away with her body in the back seat. He failed to stop immediately when a Little Rock police officer flashed his car’s blue lights and turned on his siren, and only came to a stop when he was forced to do so by another vehicle at the 1-30 bridge.

We conclude that from these circumstances, premeditation and deliberation can be inferred when viewing the evidence in the light most favorable to the State, as we are required to do. We further conclude that substantial evidence supports Rutledge’s conviction. Accordingly, the circuit court did not err in denying his motion for a directed verdict.

II. Discovery Violation

Rutledge next contends that the prosecutor failed to honor his motion for discovery and, thus, he was entitled to a mistrial. More particularly, he claims that the prosecutor failed to turn over to him his medical records from the University Hospital which showed the bullet wound to his left hand. This information, according to Rutledge, would have bolstered his claim that the shooting was accidental since the fatal bullet to Williamson also struck his hand. In short, Rutledge raises a violation of Brady v. Maryland, 373 U.S. 83 (1963), and Ark. R. Crim. P. 17.1(d), in that the prosecutor did not make available to Rutledge exculpatory evidence. The State responds that Rutledge had access to his own medical records and, thus, no prejudice to Rutledge resulted. The State cites this court to Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996), in support of its position.

We decide this matter on a procedural point. The State urges that Rudedge failed to preserve this point on appeal because he did not obtain a ruling from the circuit court on his mistrial motion. We agree. Following the empanelment of the jury on the first day of the trial, Rudedge moved the circuit court to order the release of his medical records. This was done. The medical records were obtained by fax toward the end of the trial and introduced into evidence. Rudedge, however, maintains that he was prejudiced in his defense because the records were not released to him earlier and that this was a critical violation by the prosecutor because the medical records supported his claim of an accidental shooting.

This court has made it clear in the past that it is up to an appellant to obtain a clear ruling on an issue in order to preserve that point for appeal. See, e.g., Enos v. State, 313 Ark. 683, 858 S.W.2d 72 (1993); Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990). In the case at bar, however, defense counsel made the following statement with regard to his mistrial motion:

Defense Counsel: Your Honor, I would suggest that they have not complied with our motion for discovery. They have violated Brady. And, under the circumstances, I feel obligated on behalf of my client to at this time move for a mistrial.

Defense counsel followed this motion by arguing several other points to the circuit court to which the State responded. The response from the circuit court was this:

Defense Counsel: We would also ask, your Honor, that the officer who is identified as transporting [Rutledge] be made available for cross-examination. And that’s one of the reasons I raised the Brady question. If I had had [the medical records] when that particular officer was testifying, it is my opinion that I probably would have been able to get more information which is contained within the contents of particular [sic] document.
The COURT: Well, I don’t think that that would be necessary. If the document comes in, then the Brady issue is moot.
Defense Counsel: Probably so.

Later, this discussion transpired:

The COURT: Well, the Court’s just going to let the [medical record] in. And I think that will take care of most arguments.
DEFENSE Counsel: Thank you, your Honor.

Thus, apart from the fact that Rutledge’s medical records were always available to him before the trial, it appears that not only did he fail to obtain a ruling on this issue, but his counsel acquiesced in the circuit court’s conclusion that the issue would be moot after the admission of the medical records into evidence. Certainly, Rudedge did not urge the court to rule on his mistrial motion following the court’s comments on mootness. On the contrary, he seems to have agreed that the matter was moot. This issue is not preserved for our review.

The record in this case has been reviewed for reversible error pursuant to Ark. Sup. Ct. R. 4-3(h), and none has been found.

Affirmed.