text:
    Winnie MARCHANT v. Robert PEEPLES
    81-129
    623 S.W. 2d 523
    Supreme Court of Arkansas
    Opinion delivered November 9, 1981

      Richard Quiggle, for appellant.

      Gary P. Barket, for appellee.
   Darrell Hickman, Justice.

Winnie Marchant, an Arkansas resident, filed a malpractice suit in Little Rock against Robert Peeples, a Texas lawyer. She claimed that he was negligent in allowing a default judgment to be entered against her in a divorce suit filed by her husband in Texas. Peeples was served in Texas through Arkansas’s “long arm” statute. He filed a motion to dismiss for lack of jurisdiction. After hearing testimony from both parties, the trial court ruled that Peeples did not have the necessary “minimum contacts” in Arkansas to bestow personal jurisdiction on the Arkansas court. On this sole issue we uphold the trial court.

The undisputed facts are that Peeples is a Texas lawyer licensed only to practice in Texas. He has had no contacts in Arkansas, except with Mrs. Marchant, and those have been by telephone or mail. He has not solicited any business in this state nor provided any services in this state. He did not initiate contact with Mrs. Marchant. According to Peeples, a Mississippi lawyer contacted him about representing Mrs. Marchant in the Texas action. The Mississippi lawyer represented Mrs. Marchant in Mississippi in a separate maintenance suit between the Marchants. Mrs. Marchant agreed that Peeples did not initiate the contact.

The parties disagreed on whether Peeples was ever actually hired to represent Mrs. Marchant in the Texas action. There is no doubt, however, that Peeples did not file an answer to Mr. Marchant’s petition for divorce and a default judgment was entered against Mrs. Marchant. Later Peeples filed a motion for a new trial. Evidently they talked by telephone several times about the divorce. Mrs. Marchant said Peeples was to be paid his fee from the proceeds of a Mississippi judgment against her husband for back support. Peeples denies that he ever accepted employment, but conceded that he talked with Mrs. Marchant several times, mailed her a copy of the decree, and filed a motion for a new trial.

For purposes of appeal we assume the claim against Peeples to be meritorious. But we cannot say that the trial court was clearly wrong and, therefore, affirm its finding.

In International Shoe Co. v. Washington, 326 U.S. 310 (1945), the United States Supreme Court held that under certain circumstances a state could exercise personal jurisdiction over a defendant not present in the forum state, thereby clearing the way for a judgment against that person that would be legally recognized in other states. Due process of law is satisfied if a defendant has “certain minimum contacts” with the forum state and the suit does not offend “traditional notions of fair play and substantial justice.”

Arkansas adopted a “long arm” statute after the International Shoe Company decision to provide for such jurisdiction over nonresidents. See Ark. Stat. Ann. § 27-340 (Repl. 1962). That statute was superseded when Arkansas was the first state to adopt the Uniform Interstate and International Procedure Act. Ark. Stat. Ann. §§ 27-2501 — 27-2507. See Woods, The Uniform Long-Arm Act in Arkansas: The Far Side of Jurisdiction, 22 Ark. L. Rev. 627 (1969). Peeples was served in Texas under this Act and three provisions of it are cited as permitting personal jurisdiction in this case: First is Ark. Stat. Ann. § 27-2502 (C) (1) (a) which allows service against one “transacting business in this State;” second, § 27-2502 (C) (1) (c) where one causes “tortious injury by an act or omission in this State;” and, third, Ark. Stat. Ann. § 27-2502 (C) (1) (d) “causing tortious injury in this State by an act or omission outside the State if he regularly does or solicits business, or engages in any other persistent course of conduct in this State or derives substantial revenue from goods consumed or services in this State.”

The plain language in the Act is no aid to Marchant’s claim. It would strain the Act to say that Peeples was transacting business in Arkansas. He was hired in Texas to work in Texas. He never came to Arkansas and offered no services here. The negligent act complained of was failing to file a pleading in Texas. The appellant’s main argument rests on Ark. Stat. Ann. § 27-2502 (C) (1) (d) which deals with an act occurring outside the state but causing injury in this state. Yet, the appellant ignores the rest of paragraph (d) which reads:.. .“[I]f he regularly does or solicits business, or engages in any other persistent course of conduct in this State or derives substantial revenue from goods consumed or services used in this State.” [Emphasis added.]

Mrs. Marchant relies on decisions of this court, and other courts, that have interpreted the statutory language, and, in similar cases, have found “minimum contacts” that will satisfy the due process clause. We must disagree with the argument that those decisions support a finding of personal jurisdiction in this case. Just recently in Wisconsin Brick and Block Corp. v. Cole, 274 Ark. 121, 622 S.W. 2d 192 (1981), we examined the same problem. Wisconsin Brick had been buying bricks in Arkansas for twenty years. They refused to accept a shipment and were sued in Arkansas. The trial court held that this long established contact with Arkansas satisfied the due process requirement and we affirmed that decision when the defendant filed a petition for a writ of prohibition. Before us is one isolated contact initiated by an Arkansas resident, not the nonresident as was the case in Wisconsin.

The appellant cites the case of Block v. District Court of Denver, 197 Col. 184, 590 P. 2d 964 (1979) as being directly in point. In Block, an Illinois law firm was sued in Colorado for coercing a Colorado client to sign a contract that divested the client and others of an interest in Colorado property. The wrongful act took place in Illinois. The Colorado court found minimum contacts and said that the law firm could foresee that its act would cause damage in Colorado. But the court emphasized two facts: The act by the law firm was intentional, not just negligent; and, a member of the law firm had actually been to Colorado to view the property. Neither of these facts exists in this case.

In the case of Meyers v. Smith, 460 F. Supp. 621 (D.D.C. 1979), a nonresident attorney was found to be “transacting business” in the District of Columbia. However, he was a member of a District of Columbia law firm and he solicited the plaintiff’s business while holding himself out to be a member of the local law firm. These facts do not exist in this case.

The case of Hanson v. Denckla, 357 U.S. 235 (1938) is persuasive. A Delaware trustee administered a Pennsylvania trust created by a Pennsylvania testatrix. Later the testatrix moved to Florida where suit was brought against the Delaware trustees. There had been considerable correspondence between the parties after the testatrix moved to Florida. The court held that there were sufficient contacts to bestow personal jurisdiction in Florida, pointing out that a defendant must purposefully avail himself of the privilege of conducting activities in the forum state.

Mrs. Marchant argues that the Texas lawyer could foresee that he could be sued in Arkansas when he accepted employment. While foreseeability is one factor to be considered in such cases, that alone will not satisfy the due process requirement. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). In our judgment it is virtually inconceivable that a lawyer in Peeples’ position, assuming the facts we have recited, could have foreseen that he could be sued in Arkansas for any negligent act he performed in Texas. The constitutional requirement that “minimum contacts” exist has not been met in this case.

Affirmed.

Adkisson, C.J., not participating.


source: Caselaw Access Project

author: Darrell Hickman, Justice. Steele Hays, Justice,

license: Public Domain

text:
    Charles R. SHINN et al v. Mary SHINN et al
    81-142
    623 S.W. 2d 523
    Supreme Court of Arkansas
    Opinion delivered November 9, 1981

      Crumpler, O’Connor & Wynne, for appellants.

      Robert D. Smith, III and H. Vann Smith of Smith, Jernigan & Smith, for appellees.
   Darrell Hickman, Justice.

The question on appeal is whether the trial court was right in holding that the appellee, Mary Shinn, a widow, had an undivided one-fourth interest in land because she and her deceased husband held that interest by the entirety and not as tenants in common. We agree with the trial court and affirm the decree.

All we have is the face of the instrument itself. In such a case we are to find the intention of the grantor by examining the language used and putting ourselves as nearly as possible in the position of the parties to the deed. Gibson v. Pickett, 256 Ark. 1035, 512 S.W. 2d 532 (1974).

The relevant portion of the granting clause reads that the property is granted to:

. . . R. N. Shinn and Mary Shinn, his wife; Billy W. Shinn (single); Wayne M. Newton and Sarah Newton, his wife, & Shinn Investments Ltd. (Shinn Investments Ltd. being a limited partnership including G. J. Shinn and Mary Sue Shinn, general partners) GRANTEES... as tenants in common, . . .

By one interpretation this language could mean that every person named, the partnership being one person, held the land as tenants in common; that is, each had an undivided l/6th interest. That would be the holding if we decided that the words at the end “as tenants in common” controlled the entire granting clause. That is the argument of the appellants, and Ark. Stat. Ann. § 50-411 (Repl. 1971) is cited as authority for that argument. The appellants are the children of R. N. Shinn. R. N. Shinn died testate after the deed was executed and the appellants, by the will, would stand to acquire all their father’s l/6th interest by such a holding.

But we agree with the trial court’s interpretation of the language for three reasons. First, the only consistent finding, giving all the language some significance, is that four undivided interests were created. The two married couples are mentioned together, and in both instances it is spelled out that they are to be considered as one: “R. N. Shinn and Mary Shinn, his wife;” “Wayne M. Newton and Sarah Newton, his wife.” That language creates an estate by the entirety without question. Foster v. Schmiedeskamp, 260 Ark. 898, 545 S. W. 2d 624 (1977). Second, the punctuation in the instrument clearly separates the parties into four groups. The husbands and wives are named, then separated by a comma, or semi-colon, from the next named party. The punctuation clearly indicates that R. N. Shinn and his wife, Mary, are one; Billy W. Shinn is one; Wayne M. Newton and his wife, Sarah, are one; and, the partnership is one. Third, to hold that the words “as tenants in common” control would mean we would have to ignore the words “and wife” and the punctuation, and, in doing so, totally ignore any of the grantor’s intent that these factors relate. Ark. Stat. Ann. § 50-411 would only control this situation if the grantor had not granted the Shinns and Newtons their interests by the entirety. There is no doubt that husbands and wives can share their estates by the entirety with other grantees in common. See Dennis v. Dennis, 152 Ark. 187, 238 S.W. 15 (1922).

We do not commend the clarity of the language in the deed because it is not artful. But when the law, language, and punctuation of this instrument are all considered, the only interpretation that can be made, without ignoring any of those factors, is the one we have made.

The appellants also attempt to raise an issue for the first time on appeal. It is suggested that pleadings and documents filed by Mary Shinn in the matter of her husband’s estate reflect tht she does not claim that she and her husband held this interest by the entirety. That argument was not made at the trial level, the trial judge apparently ruling on the declaratory judgment suit without holding a hearing. The appellants should have sought relief from the trial court before appeal. We cannot consider the argument for the first time on appeal. Wilson v. Lester Hurst Nursery, 269 Ark. 19, 598 S.W. 2d 407 (1980); Hazen v. City of Booneville, 260 Ark. 871, 545 S.W. 2d 614 (1977).

Affirmed.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I believe the result reached in this case is not consistent with the basic rule of construction of deeds as stated in scores of cases: in determining the intention of the parties, a deed is to be construed from its four corners so as to give effect, if possible, to the entire instrument and harmonize all its parts. Gibson v. Pickett, 256 Ark. 1035, 512 S.W. 2d 532 (1974); Davis v. Collins, 219 Ark. 948, 245 S.W. 2d 571 (1952); Holmes v. Countiss, 195 Ark. 1014, 115 S.W. 2d 553 (1938).

Here, one of two courses is open: we can treat the words “his wife” as intending to convey an estate by the entirety; or we can treat the words “as tenants in common” as intending to convey just that, a tenancy in common. By taking the second course we can give full effect to all the wording in the deed and harmonize all its parts. But by taking the first course, the words “tenants in common” must necessarily be disregarded and given no effect. That, I believe, is counter to the great body of case law of this state. While I find no case that plainly states it, I think the cases holding that a tenancy by the entirety is created simply by a conveyance to grantees who are, in fact, husband and wife do not intend that construction to be conclusive, so that words of a different import are ignored. There is a strong implication of that in the language of Foster v. Schmiedeskamp, 260 Ark. 898, 545 S.W. 2d 624 (1977):

However, under Arkansas law where property is conveyed to or purchased by a husband and wife in their joint names with nothing else appearing the property is deemed to be held as an estate by the entirety with the right of survivorship. (Emphasis mine.)

I respectfully dissent.


author: John I. Purtle, Justice.

text:
    J. L. TEDDER v. BLACKMON’S AUCTIONS, INC.
    81-128
    623 S.W. 2d 516
    Supreme Court of Arkansas
    Opinion delivered November 9, 1981

      Greene & Barrow, for appellant.

      Lance Hanshaw, for appellee.
   John I. Purtle, Justice.

The trial court ruled that appellee did not become a bailee for the appellant under the circumstances. The appellant’s claim was dismissed and a judgment entered finding no bailment situation had been created and the appellant had not sustained the burden of proof relating to the alleged negligence of the appellee. The appellant moved for a new trial and the motion was denied. It is from the order denying a new trial that the appeal is taken.

Appellant argues:

(1) The trial court’s ruling is contrary to the law in that it failed to state how a bailment was avoided under circumstances not in dispute.
(2) The trial court’s ruling was contrary to the evidence in that by not finding that the plaintiff had sustained the burden of proof of defendant’s negligence, the court failed to note the admissions regarding the lack of care contained in defendant’s testimony.

Appellant contends that he took five automobiles to the appellee’s auction lot and parked them in designated parking slots. The keys were left in the vehicles. There is a dispute as to whether this was requested by the appellee. The vehicles were taken to the appellee’s place of business about 10:00 a.m. although the sale did not start until 7:00 p.m. We are unable to determine the date from the poor quality of the abstract presented by the appellant. Appellant alleged the appellee accepted deliverance of the vehicles at 10:00 a.m. in the morning because he was given a check list, by an employee of appellee, with a number on it which would determine the sequence with which the vehicles were to be brought through the auction ring. The appellee had various signs around his place of business stating he was not responsible for loss or theft to the vehicles. Appellee received no compensation for his services unless the vehicles were actually sold through the auction. No charges were made against the owners if the vehicles were not sold. The appellant was free to remove his vehicles from the premises at any time. The owners were present during the actual auction proceedings and had the right to accept or reject any bid obtained by the auctioneer. When appellant’s automobiles came through the ring after the sale had started, only four of them appeared. The fifth vehicle was not to be found anywhere on the premises and from all we know it has never been located.

The appellant testified that he and his employees drove the car to appellee’s premises and parked them inside the gate and left. After parking the vehicles the fifth vehicle was never observed again by the appellant.

The appellee testified that the auction lot was open all week but no one was there until about 9:00 a.m. on the sale date. He stated his parking area was for the convenience of the customers and not for his own use. He identified photographs of signs at various places on his premises to the effect that the facilities were there for the convenience of the customers. At least one sign stated: “We do not carry insurance to protect your cars against fire, theft or accident on the yard. Our company claims that each dealer have his own policy. Do you?...” Appellee testified that he always told the people that he was not responsible and they should take care of their own cars. Other car dealers testified that they were aware that dealers were responsible for their own vehicles and that they kept the keys to their vehicles and did not leave the keys in the cars.

Neither side has furnished an Arkansas case in point. The appellant has apparently made an attempt to make several references to Am. Jur. 2d, but we are unable to determine these were, in fact, references to Am. Jur. 2d. In any event, appellant argues that a bailment includes any delivery of personal property for a specific object of lawful purposes. Even if we accepted this statement as law, it is apparent that the appellant never parted with control of his vehicles. The only time he would have parted with control would be if the vehicle sold when it passed through the auction ring.

Although the appellant appeals from the order failing to grant his motion for a new trial, the order is not properly abstracted. Therefore, we cannot determine whether there were findings of fact and conclusions of law as may be required in such cases. Where the case was tried without a jury and a motion for new trial was denied, it is the appellant’s burden of proying on appeal that the trial court’s decision was clearly erroneous. Arkansas Rules of Civil Procedure, Rule 52. From the abstract and argument we are not in a position to find that the trial court’s holding was clearly erroneous.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Robert James COOK a/k/a James Robert COOK v. STATE of Arkansas
    CR 81-60
    623 S.W. 2d 820
    Supreme Court of Arkansas
    Opinion delivered November 9, 1981
    [Rehearing denied December 14, 1981.]

      Robert F. Andrews, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.

      Adkisson, C.J., would grant rehearing.

   Robert H. Dudley, Justice.

Appellant Robert James Cook was arrested on October 12, 1980. On October 14, he was charged with rape, kidnapping, attempted murder, being a felon in possession of a firearm and being a habitual offender. It is undisputed that over the next five days he asked five different police officers, being all that he saw, for the appointment of an attorney. Seventeen days after his arrest, on October 29, an attorney was appointed. During this period he gave an in-custodial statement. His first appearance before a judicial officer was on November 13. The appellant subsequently moved to have all charges dismissed because of this lengthy delay. The trial court correctly refused to dismiss the charges because dismissal is not the appropriate remedy.

Rule 8.1 of the Arkansas Rules of Criminal Procedure, Vol. 4A (Repl. 1977), provides:

Prompt First Appearance
An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.

We adhere to our standard that this rule is mandatory, not discretionary, but that violation of it does not dictate a dismissal of the charges. Bolden v. State, 262 Ark. 718, 561 S.W. 2d 281 (1978). This standard, like those of searches and seizures, represents a necessary accommodation between the individual’s right to liberty and the State’s duty to control crime. On the limited issue of dismissal, the scales are tipped in favor of the State for when the defendant is found guilty he has suffered no prejudice as a result of being in jail. The remedy is to suppress the in-custodial statement, as was done. The Supreme Court of the United States, in Gerstein v. Pugh, 420 U.S. 103 (1975) at 118 stated:

In holding that the prosecutor’s assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court’s prior holding that a judicial hearing is not prerequisite to prosecution by information. Beck v. Washington, 369 U.S. 541, 545 (1962); Lem Woon v. Oregon, 229 U.S. 586 (1913). Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Frisbie v. Collins, 342 U.S. 519 (1952); Ker v. Illinois, 119 U.S. 436 (1886). [Emphasis supplied.]

We affirm the action of the trial court in denying the motion to dismiss all charges.

The case was eventually set for trial on Monday, March 9, 1981. On the preceding Friday, March 6, the prosecuting attorney conducted a parley which was termed a pretrial conference. All of the State’s witnesses who were to testify at the trial attended, some voluntarily and some because they were subpoenaed by the prosecuting attorney. Ark. Stat. Ann. § 43-801 (Repl. 1977). The pretrial conference was conducted in the solemnity of the courtroom where the trial would take place the following Monday. The witnesses were placed under oath by the prosecuting attorney, § 43-801, and each then took the witness stand in front of the others. Each was told that perjury charges could flow from falsely testifying and the prosecutor then individually questioned them. Neither the trial judge nor the defense attorney knew of this pretrial conference until Martha McAlphin, the rape victim, disclosed it during the trial. From the beginning of the trial she, as well as all other witnesses, had been under “the rule,” but she testified that she had heard the testimony of the other witnesses. She testified that the date of the incident was October 12, “as far as everybody has been telling me” and “they said he pointed the gun at Mr. Cook but I didn’t see it; they told me that when we was in here; and they told me more or less what happened.” The defense attorney at that time discovered what had happened and moved for a mistrial. It was denied and subsequently the appellant was convicted on all charges. We reverse the trial court for declining to grant a mistrial. This issue creates practical difficulties and we expressly limit this holding to the precise set of facts before us.

We agree with the reasoning of the trial court that this conference technically was not a violation of “the rule.” Rule 615, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979) provides:

Exclusion of witnesses. — At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion.

The rule is only applicable during an evidentiary hearing presided over by the court and there is no requirement to sequester witnesses by either party during the investigation or preparation of a case.

The prosecuting attorney’s subpoena power stems from Ark. Stat. Ann. § 43-801 (Repl. 1977), which was passed by the General Assembly to implement the power of prosecutors to bring criminal charges by information. Amendment 21 to the Constitution of Arkansas. Ark. Stat. Ann. Vol. 1. For an excellent review of the history of the statute see Hall, The Prosecutor’s Subpoena Power, 33 Ark. L. Rev. 122 (1979). The relevant text of the statute is as follows:

The prosecuting attorneys and their deputies shall have authority to issue subpoenas in all criminal matters they are investigating; and shall have authority to administer oaths for the purpose of taking the testimony of witnesses subpoenaed before them; such oath when administered by the prosecuting attorney or his deputy shall have the same effect as if administered by the foreman of the grand jury.

Appellant contends that the language of the statute limits the use of the subpoena power to “matters they are investigating.” We do not so narrowly interpret the statute. The emergency clause states that the statute was enacted to enable prosecutors “to properly prepare criminal cases.” Therefore, subpoenas may be used to bring in witnesses to interrogate them about a case under investigation as well as to review their testimony before trial but after the case has been investigated. However, in this particular case, there was an abuse of the prosecutor’s subpoena power. The results of this particular procedure go beyond the realm of trial preparation, they even go beyond an effective denial of “the rule.” This procedure, without cross-examination, could be utilized to lead a recalcitrant witness to a desired answer in front of the others. Each would have heard the cajoled answers and each would understand the answer which the prosecuting attorney expected him or her to give. The pressure to conform could be great. The prospective witness would then give the desired answer under oath and in front of all the other witnesses. Each could then be warned of the penalty of perjury. All of this would take place immediately prior to trial and in the solemnity of the courtroom in which the case is to be tried. The result could well be that the witness would not have time to evaluate the process and then, at trial, the witness would parrot the cajoled answer. Equally as bad, this unreported procedure could serve as an effective method for a prosecutor to avoid disclosure of witnesses’ statements. The abuse of the prosecutor’s subpoena power in this manner could result in denying a defendant a fair and impartial trial. We do not question the good faith of the prosecutor in this particular case, but if this procedure were allowed to stand, a trial tactic would be authorized which could easily result in oppressive prosecutorial trial tactics. We disapprove of such a procedure. We conclude that the trial judge, upon learning what had happened, should have granted the motion for a mistrial and then rescheduled the case after an appropriate period of time.

Appellant makes other arguments which are not necessary to discuss for they are either without merit or not likely to recur at trial.

Reversed and remanded.


author:
Steele Hays, Justice. Darrell Hickman, Justice,
      Per Curiam.

text:
    POPE COUNTY BAR ASSOCIATION, INC. v. Nadine SUGGS et al, ARKANSAS REALTORS ASSN., ABSTRACTORS, INC. et al
    81-110
    624 S.W. 2d 828
    Supreme Court of Arkansas
    Opinion delivered November 9, 1981
    [Supplemental Opinion on Denial of Rehearing December 21, 1981.]

      James K. Young of Young if Finley and Richard E. Gardner of Gardner if Gardner, for appellant.

      Gearley, Gitchel, Mitchell ir Bryant, by: W. Dent Gitchel and Friday, Eldredge if Clark, by: Michael G. Thompson, for appellees and cross-appellants.

      Jackson, Campbell, Parkinson, P.A., Washington, D.C., by: Patricia D. Gurne and Richard W. Bryan, for amici curiae, Abstractors, Inc. et al.
   Steele Hays, Justice.

The Pope County Bar Association brought suit to enjoin real estate brokers in Pope County from completing certain instruments involving real estate transactions without consulting a lawyer. The Bar Association contends that such acts constitute the practice of law and are against public policy. The Pope County brokers and the Arkansas Realtors Association, intervening as a party defendant, deny that the disputed acts constitute the practice of law. In a carefully drawn opinion the chancellor denied the injunction but limited the use of such instruments by realtors and both sides have appealed. We affirm the chancellor.

The chancellor held that brokers could fill in the blanks of certain standardized, printed forms in connection with simple real estate transactions, provided they had been previously prepared by a lawyer. The chancellor approved the use of standard warranty deeds, quitclaim deeds, release deeds, bills of sale, lease agreements and mortgages with power of sale under six specific restrictions:

(1) That the person for whom the broker is acting has declined to employ a lawyer to prepare the necessary instruments and has authorized the broker to do so; and
(2) That the forms are approved by a lawyer either before or after the blanks are filled in but prior to delivery to the person for whom the broker is acting; and
(3) That the forms shall not be used for other than simple real estate transactions which arise in the usual course of the broker’s business; and
(4) That the forms shall be used only in connection with real estate transactions actually handled by such brokers as a broker; and
(5) That the broker shall make no charge for filling in the blanks; and
(6) That the broker shall not give advice or opinions as to the legal rights of the parties, as to the legal effects of instruments to accomplish specific purposes or as to the validity of title to real estate.

By amendment, the decree was modified to define a “simple real estate transaction” as:

... those which involve a direct, present conveyance of a fee simple absolute between parties, which becomes effective immediately upon delivery of the title document. Such transactions do not include conveyances involving reservations or provisions creating life estates, limited or conditional estates, contingent or vested remainders, fee tails, easements or right-of-way grants, or any other conveyance of future, contingent or limited interest.

Eight abstract and title companies have filed a brief amici curiae supporting the decision of the trial court and requesting that they also be allowed to use the forms under the same restrictions. However, we decline to enlarge on the chancellor’s decree. They do not become parties simply by filing a brief amicus curiae and would not be bound by the decree. Moreover, they are, in effect, introducing an issue not considered by the trial court. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977); Brown v. Wright, 137 F. 2d 484 (CA 4 W. Va. 1943).

The issue presented here has been directly addressed by this court in three cases: Creekmore v. Izard, 236 Ark. 558, 367 S.W. 2d 419 (1963); Ark. Bar Assn. v. Block, 230 Ark. 430, 323 S.W. 2d 912 (1959); Beach Abstract & Guarantee Co. v. Bar Assn, of Ark., 230 Ark. 494, 326 S.W. 2d 900 (1959).

In Block and Beach, decided on the same day, this court barred realtors and abstract companies from filling in the blanks in real estate forms incidental to their lawful business. Four years later, these decisions were modified by Creekmore, supra. In Creekmore, at 565, the majority stated:

The relief here sought by appellant Sewell, the realtor, falls within the ambit of the merchant for the filling in of the simple standardized forms here involved is a necessary incident of his business just as the collection of the merchant’s bills is a necessary incident of his business. Therefore we are ruling that the decision in Ark. Bar Assn. v. Block, 230 Ark. 430, 323 S.W. 2d 912, should be modified to provide that a real estate broker, when the person for whom he is acting has declined to employ a lawyer to prepare the necessary instruments and has authorized the real estate broker to do so, may be permitted to fill in the blanks in simple printed standardized real estate forms, which forms must be approved by a lawyer; it being understood that these forms shall not be used for other than simple real estate transactions which arise in the usual course of the broker’s business and that such forms shall be used only in connection with real estate transactions actually handled by such brokers as a broker and then without charge for the simple service of filling in the blanks.

Appellant argues the Creekmore decision is limited to sparsely populated areas where lawyers are not readily available. Although this was a consideration in Creekmore, there is nothing in the opinion to indicate the decision was not intended to apply to every section of the state regardless of lawyer population. We can see no useful purpose to be gained by such a limitation; it would only lend uncertainty.

Defining what constitutes the practice of law has proved extremely difficult for the courts. Grand Rapids Bar Association v. Denkema, 290 Mich. 56, 287 N.W. 377 (1939). In Creekmore, we recognized the difficulty by stating:

The individual members of this court have spent many hours of research in trying to determine what does and what does not constitute the practice of law. After the oral argument was held, we requested amicus curiae briefs. There seems to be no clear definition of the term. (At page 564.)

The ultimate issue in this case is not so much whether realtors are practicing law when filling out these routine forms but whether it is in the best interest of the public to allow them to do so. This issue was addressed sensibly by the Colorado Supreme Court in Conway-Bogue Realty Inv. Co. v. Denver Bar Association, 135 Col. 398, 312 P. 2d 998 (1957), by holding identical activities as these to constitute the practice of law, finding at the same time that the public interest permitted such practices by brokers:

We feel that the weight of authority and especially the more recent decisions, sanctions our holding that the acts of which complaint is made, done without separate charge therefor by licensed real estate brokers only in connection with their established business, and in behalf of their customers and in connection with a bona fide real estate transaction which they are handling as brokers, should not be enjoined.
The plaintiffs have much logic in support of their contentions. Reason, public convenience and welfare appear to be on the side of the defendants.
We feel that to grant the injunctive relief requested, thereby denying to the public the right to conduct real estate transactions in the manner in which they have been transacted for over half a century, with apparent satisfaction, and requiring all such transactions to be conducted through lawyers, would not be in the public interest; that the advantages, if any, to be derived by such limitation are outweighed by the conveniences now enjoyed by the public in being permitted to choose whether their broker or their lawyer shall do the acts or render the service which plaintiffs seek to enjoin.

We are reluctant to say that the preparation of these instruments should not be classified as the practice of law. Standing alone, they fall readily within the meaning of that term. The difficulty is that they are not being considered in the abstract, but in the light and limitation of the six specific conditions carefully imposed by the chancellor in reliance on the decision of Creekmore v. Izard, supra. Even when examined in the context of these restrictions we regard the use and preparation of these instruments as so indigenous to the practice of law that it would be illogical to say they are not. But we can also say, as a majority of other jurisdictions have done, that it is in the public interest to permit the limited, outside use of standard, printed forms in the manner stipulated by the chancellor and we so hold. See 53 ALR2d788#l (b); Conway-Bogue Realty Inv. Co. v. Denver Bar Association, supra.

II.

Appellees have cross-appealed alleging error in the definition of “simple real estate transactions” as those involving conveyance of a fee simple absolute ánd excluding easements, right of way grants and other conveyances of limited interests. We disagree. The line must be drawn somewhere and this seems the appropriate place. Easements, rights of way, future or contingent interests, remainders and the like, are not routine in comparison with the other transactions and the likelihood of error when prepared by laymen is appreciably greater. Besides, this safeguard serves a dual purpose: it protects the public interest by excluding the more complicated transactions, where a significant risk of error exists, and gives adequate notice to both the realtors and the public of the upper limits of the realtor’s authority to act in such matters. We find no error in the order so modifying the decree.

Appellees argue that if the decree is left standing real estate brokers will be merely volunteers in the preparation of these instruments and, hence, no one will be liable for the mistakes which will undoubtedly occur. We disagree with that concept of the brokers’ role in these transactions. The fact that they are not to be paid for the specific task of preparing one or more of these instruments does not mean they are unaccountable for incompetence or neglect. They have a clear interest in the over-all transaction and are not obligated to prepare any of the instruments discussed here, even though the client ostensibly declines to have the necessary instruments prepared by a lawyer. These duties cannot be thrust upon the realtor and he undertakes them at his own exposure.

Supplemental Opinion on Denial of Rehearing delivered December 21, 1981

The decree is affirmed.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I agree with the result only because I feel bound by this court’s decision in Creekmore v. Izard, 236 Ark. 558, 367 S.W. 2d 419 (1963). While I disagree with that decision it has been the law in Arkansas for over twenty years, and has been relied upon by laymen and lawyers alike. Creekmore should not be extended at all.

Even so, realtors should be aware that their negligence in preparing such legal documents may well be examined by applying a standard of care expected of attorneys. They sought and gained the right “to practice law.” With that convenience goes a heavy responsibility to the public.

Per Curiam.

By petitions for rehearing both sides have asked us to clarify our opinion of November 9, 1981. They contend that the chancellor’s decision, which we affirmed without modification, is inconsistent because it authorizes brokers to prepare mortgages, release deeds, bills of sale and leases (as well as standard deeds) but limits the use of those instruments to simple real estate transactions which involve a direct, present conveyance of title in fee simple absolute between the parties. They point out that confusion exists in that some of the approved instruments (mortgages, bills of sale, release deeds and lease agreements) by their very nature do not effectuate a transfer of title in fee simple absolute.

They ask specifically if brokers are authorized to fill in the blanks of the standard, printed forms which the chancellor approved when the transaction only involves a mortgage, release deed, bill of sale or lease. The answer is that if the mortgage, bill of sale, release deed or lease is necessary and co-incidental to a real estate transaction (as the chancellor defined it), being handled by the broker in his capacity as a broker, then he is authorized to use the forms under the conditions imposed. If it is not, then his use of the forms would not be permitted and would constitute the unauthorized practice of law. The purpose of Creekmore v. Izard, 236 Ark. 558, 367 S.W. 2d 419 (1963), which the chancellor followed and which we affirmed, was to permit a broker to use these standard forms where it was necessary and reasonable in conjunction with real estate practices and it was not the intent of our decision in this case to exceed the limits set in Creekmore. There is no valid reason why a real estate broker would need to prepare any of the standard forms disconnected from other real estate transactions as defined by the chancellor and if he were to do so it would seem quite plainly to constitute the practice of law.

Rehearing denied. Supplemental opinion issued.


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    D. B. WRIGHT v. Vic LANGDON and Thelma LANGDON, His Wife, and Etta JANSSEN
    81-141
    623 S.W. 2d 823
    Supreme Court of Arkansas
    Opinion delivered November 9, 1981
    [Rehearing denied December 14, 1981.]

      /. R. Nash, for appellant.

      Mattingly & Alexander, by: Lesly W. Mattingly, for appellees Langdon.

      Dan J. Kroha, for appellee Janssen.
   Steele Hays, Justice.

This dispute arises from the September 24,1973, sale of a mobile home which the sellers, Vic and Thelma Langdon, were financing through a credit union. Facing transfer from the air base, the Langdons sought a buyer and negotiated an agreement with John and Etta Janssen to pay $200.00 down and $130.00 a month until they had paid the sum of $8,800.00. The Langdons contacted the credit union to ask the unpaid balance of their debt and were told $8,800.00. Unfortunately, this was only the amount necessary to pre-pay the debt in cash, but the Langdons mistakenly assumed it to be the entire balance of the indebtedness.

The Langdons say they asked D. B. Wright, a real estate and insurance broker, to prepare the contract and collect the payments, for which he received a fee of 10%. Wright admits handling the payments and retaining $880.00 as fee, but denies having any part in the drafting of the contract. Other witnesses say he did participate in the preparation of the contract and was present at the signing.

The contract reflected a total purchase price of $8,800.00 to be paid at $130.00 a month. It made no mention of interest or that the purchasers assumed the outstanding balance due the credit union. Thus, when Etta Janssen had paid a total of $8,800.00 she had fully performed under the contract and called on the Langdons for a clear title. It was then that the Langdons contacted the credit union and learned, apparently for the first time, that $4,290.00 was still due.

When her title was not forthcoming, Ms. Janssen sued for specific performance and the Langdons joined D. B. Wright as a third-party defendant, alleging that he had engaged in the unlawful practice of law and was negligent in the preparation of the contract. Wright denied these allegations and asked that the contract be reformed because of mutual mistake as to the purchase price.

The case was tried on July 1,1980, continued to July 25, and completed on September 8. The chancellor found that Etta Janssen had performed all obligations under the contract and was entitled to a clear title. He also found that D. B. Wright had prepared the contract negligently and had engaged in the unauthorized practice of law. He granted a judgment against him for $4,290.00, plus interest. On appeal, Wright argues that the chancellor erred in refusing to hold the Langdons’ claim against him was barred by limitations, in finding he was negligent in drafting the contract and in refusing to reform it. We affirm the chancellor.

I.

The appellant first argues the Langdons’ cause of action accrued in September of 1973 when the error occurred, and hence the trial court should have held their claim was barred by the statute of limitations, Ark. Stat. Ann. § 37-206 (Repl. 1962). It is true the decree did contain a mistatement of law in concluding the Langdons’ cause of action did not commence until after the error was discovered in 1979, as the settled law of this State is that a cause of action arises when the negligent conduct occurs rather than when it is discovered. White v. Reagan, 32 Ark. 281 (1877); Adams v. Greer, 114 F. Supp. 770 (W.D. Ark. 1953). This rule has been soundly criticized but is still the law. 27 Ark. Law Rev. 472. But we regard this misstatement as merely gratuitous for the reason that the defense of limitations is an affirmative defense that must be pleaded and here it was not raised until the trial was nearly completed. A. R. Civ. P. Rule 8; Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76 (1969). These pleadings were joined in June 1979; the case was tried on July 1, 1980, and continued to July 25, 1980, for the deposition of appellant’s associate, a Mr. Taveau. On July 22 appellant attempted to amend his answer and assert the defenses of limitations and laches and the appellees promptly moved to strike the amendment. After satisfying himself that new defenses were not induced by the deposition or by the appellees, the chancellor granted the motion to strike and we find no error in that ruling. A. R. Civ. P. Rule 15 permits amendment to pleadings “at any time” and is expressly intended to liberalize the earlier rule requiring leave of court to amend the pleadings. Even so, no hard and fast rule can be defined and in the end the discretion of the trial judge must largely determine when it becomes improper and prejudicial to permit a new defense to be introduced late in the trial. White v. Cliff Peck Chev. Co. Inc., 266 Ark. 942, 587 S.W. 2d 606 (Ark. App. 1979);Pettigrew v. Pettigrew, 172 Ark. 647, 291 S.W. 90 (1927); Cole v. Branch & O’Neal, 171 Ark. 611, 285 S.W. 353 (1926). The pleadings had been joined for a year, the Langdons evidently were currently stationed a great distance away in Alaska, all of the parties had testified and the case was close to completion when appellant attempted to interpose new defenses. We think the chancellor’s discretion was not abused.

We are not overlooking the fact that appellant again moved on September 8 to permit the defenses of limitations and contributory negligence, and the chancellor indicated that while he believed his earlier ruling was correct he would reserve judgment until deciding the case. The record does not demonstrate that the chancellor intended to reverse his previous ruling, and we believe he was correct in the first instance. The fair inference is that if appellant had requested a ruling on the motion at the September 8 hearing it would have been denied. He cannot, on appeal, claim reversible error where the record is silent or uncertain. Rea v. Ruff, 265 Ark. 678, 580 S.W. 2d 471 (1979). Even if we could say otherwise, and that the misstatement was error affecting the result, chancery cases are tried de novo and even if the chancellor improperly applied the law, if he reached the right result we affirm. Davis v. Davis, 270 Ark. 180, 603 S.W. 2d 900 (Ark. App. 1980).

II.

In the court below and on appeal appellant insists the chancellor erred in finding that he prepared the contract, suggesting, instead, that it was his associate, Mr. Taveau, who prepared it. Appellant urges that we reverse the finding that he engaged in the practice of law and was guilty of negligence in failing to provide a clause requiring liquidation of the debt to the credit union. But the issue concerning preparation of the contract was disputed and there was testimony supporting either side. Certainly it could not be said that the findings were clearly erroneous. A.R.C.P. Rule 52. In fact, the evidence easily preponderates in favor of the chancellor’s findings. Appellant claimed he never saw the, contract until the litigation arose, never discussed it with anyone, did not sign it and was not present when it was signed. These denials are contradicted in one way or another by the combined testimony of the other parties, including Mr. Taveau, and are unconvincing, to say the least. Appellant admits he processed the monthly payments and benefitted by a sizable fee for his services. We have no difficulty upholding the finding the appellant either prepared or directed Mr. Taveau to prepare the contract and by so doing engaged in the unauthorized practice of law.

Of more concern is what standard of care should be applied to the conduct of one who improperly assumes the function of a lawyer. Appellant asserts that no Arkansas case law can be found on the point and we come to the same view. But reason urges that the standard should be no less than that required of a licensed attorney, and conceivably an even higher standard would be appropriate — strict liability, for example, to deter those who might be otherwise tempted to profess a competence they have no right to claim. There is authority for either proposition: in the early case of Miller v. Whelan, 42 N.E. 59 (1895), it was said that one who represents himself to be an attorney is accountable as though he were. Hecomovich v. Nielsen, 518 P. 2d 1081 (Ct. of App. of Wash. 1974), holds that a real estate broker who undertakes to practice law is liable for his negligence, the standard of care being that of a practicing attorney. In Mattieligh v. Poe, 356 P. 2d 328 (Wash. S. Ct., 1960), a broker engaged in the unauthorized practice of law was held liable for negligence in the preparation of a contract. Burien Motors Inc. v. Balch, 513 P. 2d 582 (Ct. of App. of Wash. 1973), holds the standard of care required of one who undertakes to function as a lawyer is the same as that required of lawyers. See also Latson v. Eaton, 341 P. 2d 247 (Okla. S. Ct. 1959). The same reasoning and standard have been applied in cases involving the unauthorized practice of medicine. State of Washington v. Maxfield, 285 P. 2d 887 (Wash. S. Ct. 1955); Kelly v. Carroll, 219 P. 2d 79 (Wash. S. Ct. 1950). In at least one state, absolute liability has been imposed:

Persons who without authority engage in acts that may be construed as such practice, should take warning from this case, for they are acting at their peril. Absolute liability is placed on the unauthorized practitioner for any mistake that may be incorporated in his work, for no matter how deeply concealed the defect may lie his failure to draw an instrument validly, to the injury of anyone, is negligence per se . . . . Biakanja v. Irving, 310 P. 2d 63 (Cal. App. 1957).

We need not settle the issue here, as the chancellor gave appellant the benefit of the lesser standard. The fact that appellant knew of the outstanding indebtedness to the credit union and failed to include an appropriate provision in the contract caused the Langdons’ loss and fully sustains the finding of negligence. See Hecomovich v. Nielsen, supra.

111.

Finally, at or near the close of the proof the appellant and the Langdons moved to reform the contract consistent with, a claimed intention of the parties that the Janssens would pay $130.00 per month until the indebtedness to the credit union was fully paid. Appellant asserts that the chancellor erred in refusing to so reform, citing Yeargan v. Bank of Montgomery County, 268 Ark. 752, 595 S.W. 2d 704 (Ark. App. 1980). But the difference between the case at bar and Yeargen is that the mistake there was mutual, whereas here there is no clear and convincing evidence that the parties intended a purchase price greater than the $8,800.00 recited in the agreement and, thus, the mistake was at best unilateral. Arnett & Arnett v. Lillard, 245 Ark. 939, 436 S.W. 2d 106 (1969); Hervey v. College of the Ozarks, 196 Ark. 481, 118 S.W. 2d 576 (1936); Fullerton v. Storthz, 182 Ark. 751, 33 S.W. 2d 714 (1930).

The decree is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority for two reasons. First, I think the statute of limitations should have been allowed as a defense on behalf of appellant. Second, I think the contract should have been reformed. I have no disagreement with the majority opinion in holding that appellant was illegally practicing law. However, I feel he should have been allowed to make an affirmative defense of the statute of limitations because he attempted to do so during the course of the trial.

It is obvious to me that the Langdons and the Janssens understood that a balance was owed on the mobile home in the amount of $8,800. All four of them recognized that a loan existed on the property and the purchasers attempted to assume the loan. They also failed in an attempt to obtain another loan. It is quite clear to me that all of the parties knew there was a balance owing at the time of this contract in the amount of $8,800. It necessarily follows that all of them knew interest would have to be paid on the balance. Therefore, I would hold the claim against the appellant barred by the statute of limitations and reform the contract to require the purchasers to finish paying for the mobile home.

      John Janssen had deceased when the litigation began.


author: Per Curiam.

text:
    Bradford Lee COOLEY v. STATE of Arkansas
    623 S.W. 2d 516
    Supreme Court of Arkansas
    Opinion delivered November 9, 1981

      Don A. Eilbott, for appellant.

      Steve Clark, Atty. Gen., for appellee.
   Per Curiam.

Appellant, Bradford Lee Cooley, by his attorney has filed for a rule on the clerk.

His attorney, Don A. Eilbott, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases.

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


author: George Rose Smith, Justice.

text:
    Helen Strohl HALL v. Lamar HALL, Executor
    81-135
    623 S.W. 2d 833
    Supreme Court of Arkansas
    Opinion delivered November 16, 1981

      House, Holmes & Jewell, P.A., by: Philip E. Dixon and Daryl G. Raney, for appellant.

      Harold L. Hall and Randall L. Gammill, for appellee.
   George Rose Smith, Justice.

Charles L. Hall died on April 1, 1980. His will left all his property to a minor son adopted during an earlier marriage. The appellant, Hall’s widow, who had married him in 1977, filed an election to take against the will and a petition for her statutory allowances. Ark. Stat. Ann. §§ 60-501 and 62-2501 (Repl. 1971). The appellee executor filed a response on October 6, 1980, aserting the unconstitutionality of the statutes. On December 2 the executor reasserted his position in a motion for summary judgment. On February 25, 1981, the probate court entered a summary judgment denying the widow any interest in the estate and citing our decisions handed down two days earlier. Stokes v. Stokes, 271 Ark. 300, 613 S.W. 2d 372 (1981); Hess v. Wims, 272 Ark. 43, 613 S.W. 2d 85 (1981). This appeal is from that summary judgment. Our jurisdiction attaches under Rule 29 (1) (c).

We decline at the outset to overrule Stokes and Hess, which disposes of the appellant’s first argument.

Second, the appellant asks that Stokes and Hess not be given any retroactive effect. Her argument is that at one time the Supreme Court held that an unconstitutional statute confers no rights. Norton v. Shelby County, 118 U.S. 425 (1886). It is asserted, however, that in recent years the Supreme Court has modified that rigid rule by holding that some constitutional decisions should have prospective effect only. Lemon v. Kurtzman, 411 U.S. 192 (1973); Chevron Oil Co. v. Huson, 404 U.S. 97 (1971).

We do not regard the Supreme Court’s gradual change of language — which is all we think it to have been — as having the far-reaching effect the appellant attributes to it. A constitutional decision such as Stokes or Hess has never been completely retroactive in the sense that a widow who was awarded her statutory dower some years before those cases were decided could now be stripped of her estate at the demand of a disgruntled heir. The death knell of our gender-based statutes governing the widow’s dower and allowances was actually sounded on March 5, 1979, when the Supreme Court decided Orr v. Orr, 440 U.S. 268. After that pronouncement the invalidity of our statutes was promptly raised in Stokes, in Hess, and in the case at bar, before the rights of the widows had finally vested. Thus the present appellant, Mrs. Hall, is in precisely the same position as were Mrs. Stokes and Mrs. Wims in the earlier cases. Those decisions are not being applied retroactively when we treat her exactly as they were treated.

Third, the defect in our gender-based statutes was corrected as of March 25,1981, by the enactment of Act 714 of 1981, which created gender-neutral awards of dower, curtesy, and allowances. §§ 60-501 and 62-2501 (Supp. 1981). The appellant argues that we should somehow make that statute retroactive or reach the same result by extending the benefits of the earlier dower statutes to surviving husbands.

We do not think that such an essentially legislative step lies properly within the power of the courts. We adhere to our view, expressed only recently, that Act 714 is substantive rather than procedural and therefore should not be applied retroactively. Huffman v. Dawkins, 273 Ark. 520, 622 S.W. 2d 159 (1981). Nor can the principle of Sweeney v. Sweeney, 267 Ark. 595, 593 S.W. 2d 21 (1980), be invoked as a basis for awarding this appellant an interest in her late husband’s estate. For one thing, Sweeney dealt with alimony, a periodic allowance lying continuously within the control of the chancery court. For another, that decision rested upon the inherent powers of a court of equity; but this appeal is from the probate court, which is a court of law. Merrell v. Smith, 226 Ark. 1016, 295 S.W. 2d 624 (1956); Young v. Young, 201 Ark. 984, 147 S.W. 2d 736 (1941).

Affirmed.


author: Frank Holt, Justice.

text:
    Cardell HUNES v. STATE of Arkansas
    CR 81-74
    623 S.W. 2d 835
    Supreme Court of Arkansas
    Opinion delivered November 16, 1981

      William R. Simpson, Jr., Public Defender, and Jeff Rosenzweig, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty and assessed his punishment at 50 years on a rape charge, 40 years on an aggravated robbery charge and 40 years each on two counts of kidnapping. For reversal appellant contends that his confession was inadmissible inasmuch as the evidence presented at the Denno hearing was insufficient to establish that he knowingly, voluntarily and intelligently waived his federal fifth and sixth amendment rights. We disagree and affirm.

In appellant’s signed confession, he stated that he pulled a gun on the rape victim’s husband in a parking lot about 1:30 a.m. and forced him to drive them to the victim’s home. When they arrived appellant, at gunpoint, ordered the rape victim to gag her husband and eldest boy with some socks. He then shut them in the bathroom while he raped the victim twice. Afterwards, the family was forced into their car with appellant driving. At one point when the car stopped, the husband attempted to wrestle the gun away from the appellant. During the struggle, the rape victim escaped from the car. The appellant broke away from her [the victim’s] husband and chased her. Appellant and the victim were walking along a highway when he was apprehended.

The testimony of the victims, who identified the appellant at trial, corresponded with the appellant’s admissions. Additionally, they established that he had robbed the rape victim of some rings and money. The criminal episode covered a period of time from approximately 1:30 a.m. to 5:30 a.m. when appellant was apprehended. He was in custody approximately VA hours when he signed the questioned confession.

Appellant argues that the “totality of the circumstances, i.e., age, drug use, lack of education, fatigue, absence of counsel, and lack of memory,” rendered his confession involuntary. At the Denno hearing appellant testified that he was 16‘4 years old at the time of the alleged offenses; he quit school in the 6th grade and could read and write “a little bit”; he took three “ludes” or quaaludes early in the afternoon of the day preceding the alleged criminal episode; and he remembered nothing that happened after-wards including the alleged offenses, being in jail, nor making the questioned statement. Appellant denied the signature on the confession as being his. He admitted that within the past year he had had a previous felony conviction and was represented by counsel. The state hospital report indicated appellant had a history of drug abuse.

The state, in support of its position that appellant’s statement was free and voluntary, adduced evidence that the appellant was apprehended about 5:30 a.m.; the interrogating officer read to the appellant a written form about 6:30 a.m. which advised him of his Miranda rights; appellant refused to sign the rights form and, also, the services of an attorney. However, appellant told the officer he understood his rights and would tell him what happened. The officer again advised him of his rights. After hearing appellant’s narration of the events, the officer reduced appellant’s oral statement to writing and read it to him. The appellant reread the statement, approved the accuracy of it at 7:15 a.m., initialed it in two places and signed the first and last page. A deputy prosecuting attorney corroborated this testimony. She also testified that at her suggestion she called appellant’s mother and informed her of his arrest. The parent did not appear. Appellant refused his right to the presence of counsel, although she specifically asked the appellant if he wanted to call a lawyer. These officers testified that they did not detect any indication of the use of any intoxicants or drugs and there was nothing unusual about appellant’s actions, appearance or the manner in which he responded. Further, no threats nor promises were made to him.

It is well settled that before a confession can be admitted into evidence, the state must make a prima facie showing that the accused knowingly, voluntarily, and intelligently waived his right to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); and Hignite v. State, 265 Ark. 866, 581 S.W. 2d 552 (1979). On appeal we are required to review the evidence and make an independent determination of the issue of voluntariness. Davis v. North Carolina, 384 U.S. 737 (1969); Harvey v. State, 272 Ark. 19, 611 S.W. 2d 762 (1981); and Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). In Degler we held that, based upon a review of the totality of the circumstances, “the trial judge’s finding of voluntariness will not be set aside unless it is clearly against the preponderance of the evidence

Appellant’s youth, I6V2 years of age, although a factor, is not a sufficient reason to exclude a confession. Leonard v. State, 269 Ark. 146, 599 S.W. 2d 138 (1980); and Rouw v. State, 265 Ark. 797, 581 S.W. 2d 313 (1979). Here, appellant was in custody approximately V/2 hours before making the confession. Essentially, he argues that he was unable, because of taking “3 ludes” about 15 hours previously, to remember any of the events surrounding the alleged offenses, being questioned, or signing the confession. The state’s evidence was that he appeared to be lucid and understood his rights. It was for the trial court to weigh the evidence and resolve the credibility of the witnesses. Wright v. State, 267 Ark. 264, 590 S.W. 2d 15 (1979); and Harvey v. State, supra. Here, we hold that the trial court’s ruling that the confession was voluntarily given is not clearly against the preponderance of the evidence.

Affirmed.


author: John I. Purtle, Justice. Darrell Hickman, Justice,

text:
    Ed WHITE et al v. Leon LORINGS et al
    81-125
    623 S.W. 2d 837
    Supreme Court of Arkansas
    Opinion delivered November 16, 1981

      Christopher C. Mercer, Jr., for appellants.

      Rose Law Firm, by: Kenneth R. Shemin, for appellees.
   John I. Purtle, Justice.

A petition to incorporate the town of Wrightsville pursuant to the provisions of Ark. Stat. Ann.§ 19-101, etseq. (Repl. 1980) was rejected by the Pulaski County Court. The appeal to circuit court resulted in a trial de novo in which the petition was again rejected. On appeal to this court the appellants urged that (1) the trial court erred in holding that the amended petition did not satisfy the requirements of Ark. Stat. Ann. §§ 19-101 and 19-106; (2) the trial court erred in holding that much of the area proposed to be incorporated is agricultural or open and vacant and would not derive any benefit from incorporation, but would be subject to taxation; and, (3) the trial court erred in holding that the area proposed to be incorporated is unreasonably large. We agree with the appellants for reasons to be explained below.

Pursuant to the rights granted by law more than 150 registered voters residing within the area designated as the town of Wrightsville, Arkansas, petitioned the county court for incorporation. During the time the matter was pending in the county court several petitions were added and certain changes were made in the geographical boundaries. On October 19, 1979, the county court denied the people the right to incorporate. Notice of appeal was filed November 9, 1979. The entire record was designated as the record on appeal. The case was heard de novo by the circuit court in piecemeal fashion commencing July 11, 1980. Testimony was taken and exhibits were introduced on that date, one of which was a map of the area proposed for incorporation. There was no question as to the accuracy of the map. Testimony indicated that the area proposed for incorporation was about two and one-half miles long and three-quarters of a mile wide on the average. The plat was subsequently amended leaving less than two square miles in the area proposed for incorporation. Testimony revealed there were 410 houses, 25 businesses, seven churches, one school and one post office within the area. There were 919 people living in the area.

At the hearing on July 11, 1980, several remonstrants were heard and they obtained an agreement to have part of the territory deleted from the proposed incorporation. A subsequent hearing was held on August 22, 1980, and the amended plat was marked and introduced into the record as Plaintiff’s Exhibit No. 7. Four areas had been deleted from the original proposed area of incorporation. The remaining area in the proposed town of Wrightsville was approximately 900 acres (640 acres equals one square mile). After the area proposed for incorporation was redefined there was no testimony or evidence presented indicating the area was unreasonably large.

On September 2,1980, the court announced that neither side wished to produce any additional testimony and the court would take the matter under advisement. Briefs were filed by the parties.

On September 22, 1980, the court issued a memorandum opinion holding against incorporation of the area. This was reduced to judgment on November 12, 1980. The judgment recited that (1) the court was not persuaded that the petition for incorporation, as amended, satisfied the requirements of Ark. Stat. Ann. §§ 19-101 and 19-106; (2) much of the area, as amended to be incorporated, is agricultural or open and vacant and would not derive any benefit from incorporation, but would be subject to taxation; and, (3) the area to be incorporated is unreasonably large.

Ark. Stat. Ann. § 19-101 controls the matter of petitioning for the incorporation of a city or town. The statute requires that 150 qualified voters residing within the described territory may petition to be incorporated.

Ark. Stat. Ann. § 19-102 provides for a hearing by the county court on a petition for incorporation. It specifically provides that affidavits for and against a petition may be prepared for, submitted to and examined by the court. About the only limit placed in this provision is that the county court may not increase the area proposed for incorporation but may delete portions of land proposed for incorporation.

Ark. Stat. Ann. § 19-106 provides for a hearing in circuit court when the decision of a county court is appealed. This statute provides that the matter may be heard in a summary manner; receiving answers, affidavits and proofs, as may be deemed pertinent. The statute provides that the court shall not approve the incorporated area if it finds: (1) that the area does not contain the requisite number of inhabitants; or, (2) that a majority have not signed the petition; or, (3) that the area is unreasonably large or unreasonably small; or, (4) that the lands are not properly and sufficiently described.

The order of the trial court, as set out above, first stated that the court was not persuaded that the petition for incorporation satisfied the requirements of Ark. Stat. Ann. §§ 19-101and 19-106. There was no other reason given at that point. The court further found that much of the area to be incorporated is agricultural or open and vacant land and would not derive any benefit from incorporation but would be subject to taxation. Obviously, the court was taking into consideration the statutes which provide for annexation of territory to an already existing town. Indeed, Ark. Stat. Ann. § 19-307.1 provides that lands used only for agricultural or horticultural purposes and where the highest and best use of certain lands is for agricultural or horticultural purposes shall not be annexed. There has never been such a provision in the statutes governing the original incorporation of towns and cities. In fact, Act No. I of the Acts of the General Assembly of 1875 is still the controlling act relating to the incorporation of cities or towns. The third reason the court gave for denying the incorporation was that the area to be incorporated is unreasonably large. The area was described as containing approximately two square miles and 919 inhabitants. From looking at the aerial map and the map prepared by the land surveyor it is obvious that most of the land is occupied and developed. The only testimony presented relating to the area being unreasonably large was by Richard Stephens, a resident of Pulaski Heights in Little Rock, Arkansas. He stated that he was an MAI appraiser and a member of a number of professional organizations. In any event, he stated:

Q. Based upon your on-site inspection and on your knowledge and training as an MAI inspector or appraiser, do you have an opinion as to whether the limits of the proposed incorporated town are unreasonably large?
A. Well, I don’t know that they’re unreasonably large. I would — the density of population that’s present in the area now would seem to me to be in a more restrictive portion of the area than it is according to these boundaries.

This testimony was elicited during the August 22, 1980, hearing prior to the time when the appellants eliminated the known farm land from the proposed incorporation area. After the agricultural land was eliminated, there was no testimony in the record stating that the area was unusually large. Therefore, the only conceivable basis for this holding was Plaintiff’s Exhibit No. 7. As we view Plaintiff’s Exhibit No. 7 it shows almost the entire area to be developed into subdivisions containing a significant number of structures.

What is referred to as the original town of Wrightsville was platted and filed for record on July 29,1881. The town of Tafton was platted on October 23,1899, and an addition was added on May 21, 1914. The area between Tafton and Wrightsville was platted as the Mary E. Jones Subdivision in 1924. Thus, the majority of the area proposed for incorporation has been platted in town lots since 1924. The only time we have considered an area to be unreasonably large appears to be in Arkansas and Ozark Railway v. Town of Busch, 223 Ark. 27, 364 S.W. 2d 54 (1954). In Busch the facts revealed that there was a strip of land one-quarter of a mile wide and approximately three miles long which connected the store and land owned by Mr. Huffman to the Missouri state line. The whole area contained only 21 inhabitants. The express purpose was to allow Mr. Huffman to sell gasoline at Missouri prices because he would be in a town adjoining the Missouri boundary. This situation does not compare in any manner to the case before us. Although there is no definition for “unreasonably large” or “unreasonably small,” we have to use common sense in passing judgment upon such matters. In considering an approximately two square mile area containing more than 900 people with its own post office, school and over 400 other buildings, we are of the opinion that the area does not fall within the definition of unreasonably large. Therefore, the court should have allowed the incorporation.

The case is remanded to the trial court with directions to permit the incorporation of the town of Wrightsville.

Reversed and remanded.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. In my judgment this is a case that could have been decided either way by the county and circuit courts, but both lower courts found that the petition should be denied. On appeal we must uphold those decisions unless we can say that they were clearly erroneous. Ark. Civ. P., Rule 52.

There are two major flaws in the majority’s judgment. First, the opinion conveniently ignores the fact that Arkansas law gives the trial court some discretion in granting or denying a petition to incorporate. Ark. Stat. Ann. § 19-103 (Repl. 1980) reads:

If the County Court shall be satisfied, after hearing such petition, ... it shall ... be deemed right and proper, in the judgment and discretion of the Court, that said petition shall be granted . . . .[Emphasis added.]

This language can only mean that incorporation is not automatic, to be granted if form only is satisfied — if enough names are on a petition and if a map is filed. It is always a question of whether it is “right and proper” to grant an incorporation petition. Our cases bear this out. What is deemed right and proper has been discussed in several cases. It is not right and proper to incorporate solely to tax land. Waldrop v. Kansas City Southern Railway Company, 131 Ark. 453, 199 S.W. 369 (1917). Whether land is suited for “municipal purposes” is a consideration. Agricultural and timber lands are not such lands. McCarroll, Comm. of Revenues v. Arnold, 199 Ark. 1125, 137 S.W. 2d 921 (1940). Another consideration is whether the proposed limits of the town are unreasonably large. Arkansas and Ozark Railway v. Busch, 223 Ark. 27, 264 S.W. 2d 54 (1954).

All of these factors have been recognized as legitimate considerations in a decision regarding incorporation. Every one of these was considered by the two trial courts in their decisions.

From the testimony of the witnesses one cannot help but conclude that there were other solid reasons for not granting the petition. Michael Garman testified that he had lived in Wrightsville twenty-nine years and was a property owner. He opposed incorporation because of lack of planning; he did not see how the “town” could be supported; he did not know where the money was coming from and, furthermore, he knew that not all the citizens of Wrightsville wanted incorporation. It was stipulated that Nell Higgins, Betty Flowers, George B. Walton, J. B. Morgan, Lon Lorings and Charles Washington would testify to the same effect.

A proponent of the plan, Charles Tatum, who owns a liquor store in Wrightsville and helped conduct the questionable survey, said he favored incorporation because they needed improvements: Police protection, fire protection, recreation, health services, streets and water. But he seemed to have no conception of how those improvements would be paid for. When pressed, he answered:

A. No. I ain’t saying nothing about raising no revenue.
Q. Well, what do you feel — how do you obtain services without raising revenue?
A. How do you obtain services —
Q. How do you — how are you going to obtain these services for your town without the money? Where’s the money going to come from?
A. The money’s going to come from the people.
Q. How are the people going to get it?
A. I don’t know how they’re going to get it.
Q. Are they going to be taxed?
A. I don’t think so.
Q. Well, where’s the money going to come from?
A. Well, the money’s got to come from the people.
Q. Okay. I won’t belabor the point. I think you’ve made it for me.
A. See, because whatever you want, we know we’ve got to pay for it.
Q. Okay.
A. If we get any kind of improvements, we know we got to pay for it.
Q. Okay. Are people just going to come give money to make those things happen?
A. Well, I think that the point you want to ask is are we going to raise taxes.
Q. No.
A. I’m saying no. We ain’t going to raise taxes.
Q. Okay. Where is the money going to come from?
A. But to pay for some of these improvements, we might — one of the best ways to collect this money from each individual is to put it on your tax bill.
Q. Okay.
A. But we won’t raise no taxes.
Q. Okay.
A. We’ll probably pay for some out of improvements on your tax bill, but I’m saying we won’t be raising no taxes.

The lower courts found the area “unreasonably large,” a finding that I cannot say is clearly wrong, not if the fact finders are given any say in the matter. But the majority, totally ignoring the prerogatives of the lower courts and totally ignoring the legal discretionary power of those courts, has substituted its judgment for that of the lower courts, saying: “We are of the opinion that the area does not fall within the definition of unreasonably large.” Therein lies the second major flaw in the majority’s decision. The majority is acting like a trial court, substituting its judgment for that of two courts that are charged to determine the facts and use their discretion. In my judgment the majority has not only departed severally from the dictates of the statutes and our prior decisions but has also exceeded its authority. Obviously the lower courts were not satisfied in this case that it was right and proper to grant incorporation for any number of valid reasons, all of which have been recognized by us as legitimate reasons for denying incorporation.

I respectfully dissent.


text:
    MFA MUTUAL INSURANCE COMPANY v. R. C. KELLER and Jessie Lynette KELLER, His Wife
    81-88
    623 S.W. 2d 841
    Supreme Court of Arkansas
    Opinion delivered November 16, 1981

      Barrett, Wheatley, Smith ir Deacon, for appellant.

      John Belew of Harkey, Walmsley, Belew ir Blankenship, for appellees.

      Wright, Lindsey ir Jennings, for amicus curiae National Association of Independent Insurers.
   Robert H. Dudley, Justice.

Appellant MFA Insurance Company issued a builder’s risk insurance policy in the amount of $62,000 on a house owned by appellees, R. C. and Lynette Keller. The house was partially destroyed by fire. Appellees submitted a proof of loss claim for $44,000 but appellant refused to pay that amount because its adjuster’s appraisal was only $20,455. Appellant subsequently offered the sum of $22,750 which was the amount of an appraisal by an independent home builder. Appellees filed suit and, after all amendments to the pleading, sought $44,000 under the terms of the policy, 12 percent statutory penalty, interest and attorney’s fees as well as compensatory and punitive damages as a result of appellant’s bad faith, fraud and deceit. After the trial had commenced appellees took a voluntary nonsuit on that part of their tort claim alleging bad faith.

At trial there was substantial evidence that appellant’s adjuster had made two deceitful statements. The first was when he wrote appellees’ attorney that he had attempted to obtain bids from local contractors but they would not bid. The second was when he denied that one of his appraisers, Steve Duncan, told him that it would take between $40,000 and $50,000 to repair the house.

The jury reached a verdict in favor of appellees and the court entered judgment for $44,000 on the contract of insurance, $5,280 as 12 percent penalty, $15,000 for attorney’s fees, $75,000 for compensatory damages and $ 124,000 for punitive damages with interest on each of these amounts at the rate of 10 percent per annum until paid.

We affirm, without discussion, the award based on the insurance contract, penalty, interest and attorney’s fees. Ark. Stat. Ann. § 66-3238 (Repl. 1980) applies whenever an insured prevails in a controversy with his insurance company and actually obtains a money judgment for the amount prayed. Southern Farm Bureau Casualty Insurance Co. v. Gooding, 263 Ark. 435, 565 S.W. 2d 421 (1978).

We reverse the awards for compensatory damages and punitive damages which were based upon the theory of fraud and deceit. We have held that an insurance company might face tort liability for bad faith in addition to its contractual liabilities. Findley v. Time Insurance Co., 264 Ark. 647, 573 S.W. 2d 908 (1978). We do not consider the tort of bad faith, for appellees dismissed their claim on this allegation and obtained this judgment on the tort of fraud and deceit. The action for deceit is of very ancient origin, with one form of the action known to exist as early as 1201. Prosser, Law of Torts, p. 685 (4th Ed. 1971). We have long recognized the common law tort of deceit. See Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W. 2d 518 (1972). We uphold the Court of Appeals’ ruling in Sturgeon v. American Family Life Assurance Co., 266 Ark. 1040, 589 S.W. 2d 207 (Ark. App. 1979), that deceit is a recognized cause of action against an insurer. We are not academically concerned with the vagueness of the word “fraud.” See Prosser, Id. at 684. In this case we treat that word as surplusage in an action for deceit.

In Beam v. Monsanto Co., Inc., 259 Ark. 253, at 264, 532 S.W. 2d 175 (1976), we adopted from Prosser, Id. at 685, a statement of the elements of the tort cause of action in deceit as follows;

1. A false representation made by the defendant. In the ordinary case, this representation must be one of fact.
2. Knowledge or belief on the part of the defendant that the representation is false — or, what is regarded as equivalent, that he has not a sufficient basis of information to make it. This element often is given the technical name of ‘scienter.’
3. An intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation.
4. Justifiable reliance upon the representation on the part of the plaintiff, in taking action or refraining from it.
5. Damage to the plaintiff, resulting from such reliance.

See also, Restatement (Second) of Torts, Chapter 22 (1977) and 8 Va. L. Rev. 749 (1930).

The case at bar was tried before a jury. To determine the sufficiency of evidence on appeal from a j ury trial we review the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the finding of the jury. Thrifty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W. 2d 304 (1975).

Using that standard of review, we hold there is substantial evidence to support the finding that appellant made false representations of material facts. There is substantial evidence to support the finding that the misrepresentations were knowingly made and they were made with the intention of inducing the appellees to act on them, that is, they were made with the intent to deceive appellees about the true cost of repairing their house. However, there is absolutely no evidence that appellees relied on appellant’s misrepresentations. In fact, they knew the statements were false. The appellees were induced neither to act or not to act by reason of appellant’s misrepresentations. The maker of a fraudulent misrepresentation is not liable to one who does not rely on that misrepresentation. This is a lack of causal relation in its simplest form. No damage resulted from reliance upon appellant’s misrepresentations. The fourth and fifth elements of the tort, reliance and resulting damages, are clearly absent. Hence the appellees are barred from recovery on the deceit theory.

The facts of the case at bar are unlike the facts in the case of Sturgeon v. American Family Life Assurance Co., supra. There Sturgeon bought a cancer insurance policy upon assurances by the insurance company that the policy would pay if he were diagnosed as having cancer. He relied on that representation and purchased a policy. He developed cancer and yet coverage was denied. There was a misrepresentation upon which Sturgeon relied and he was damaged. All of the elements of the common law tort of deceit were stated.

The appellees contend that they are within the limits of the deceit theory expressed in Sturgeon because appellant’s policy represented that it would restore the house to its former condition and that, in fact, appellant never intended to restore the house. This argument is based upon the erroneous premise that appellant was obliged to restore the house. The policy provides that appellant will pay the “amount” it would “cost to repair or replace the property with material of like kind and quality.” Appellant had no obligation to repair, rebuild, restore or replace. Its obligation was to pay the amount sufficient to restore the house.

We do not reject the possibility that an insurer may be liable in tort for deceit and also liable under the penalty statute. We leave that question for the future.

Affirmed as to the amount of loss, penalty, interest and attorney’s fees. Reversed as to compensatory and punitive damages as a result of the tort of deceit. Appellees are awarded a $500 attorney fee for supplemental abstracting and their motion for the taxing of costs is granted.


text:
    UNION COUNTY, Arkansas et al v. UNION COUNTY ELECTION COMMISSION et al
    81-137
    623 S.W. 2d 827
    Supreme Court of Arkansas
    Opinion delivered November 16, 1981

      William A. McLean, Chief Deputy Pros. Atty., Union County, for appellants and cross-appellees.

      James J. Calloway, for appellees and cross-appellants.
   Robert H. Dudley, Justice.

The central issue in this appeal is whether a quorum court has authority to establish a ceiling on expenditures made by a county election commission. We hold the quorum court has such authority when exercised in a reasonable manner.

In 1968 voting machines were installed in Union County. The election commission asked Tom Calhoun and Tom Williams to maintain and program the machines. The manufacturer of the voting machines sent a representative to Union County to train Calhoun and Williams, as neither had any experience with voting machines. Calhoun, a heating and air-conditioning contractor with a high school diploma, testified that anyone with average intelligence could do the job and that most of his training came from practical experience. Calhoun and Williams have performed this work for the commission since the machines were installed. Their charges to the county escalated from a 1970 total of $4,900 to a 1978 total of $21,000. After the 1978 general election the quorum court studied comparable costs in other counties, corresponded with the manufacturer of the machine and concluded that Calhoun and Wilson were charging too much for their services. As a result, the quorum court requested that the commission advertise for bids on these services.

Before the 1980 county budget was adopted, the election commission requested $7,500 for this work and for a sum sufficient to pay each poll worker $25.00 in the upcoming November election. The quorum court appropriated an amount sufficient to pay $25.00 to each poll worker, but only appropriated $3,500 for preparation of the machines. The commission advertised for bids and two bids in reply were received. One was from Calhoun and Williams in the amount of $7,500 and the other was from Powell and Goolsby in the amount of $2,888.05. The low bidders did not have experience but stated they would attend a manufacturer’s course on maintenance and preparation of voting machines. Powell performs computer work for a bank and Goolsby is a high school math teacher. Their educational backgrounds are not in evidence, but all witnesses agreed that both are intelligent enough to perform the work.

The election commission, by a two-to-one vote, awarded the contract to the high bidders. After the general election, the commission filed claims with the county for $7,500 for machine preparation and for a sum sufficient to pay each poll worker $50.00. The county judge denied the claim to the extent it exceeded the appropriation previously made by the quorum court. On appeal, the circuit court ordered that the $7,500 be allowed and that each poll worker be allowed $25.00. The county appeals that part of the decision which exceeds the appropriation and the commission cross-appeals that part of the decision not allowing more than $25.00 per poll worker. We hold that neither claim may exceed the appropriated amount.

The quorum court must prepare a yearly budget for the purpose of allocating funds and the Constitution of Arkansas provides that no money can be paid out until it has been appropriated. Article 16, § 2. There is an exception to this general rule for that class of necessary obligations arising from county functions imposed by law. The quorum court and the county judge do not have discretion to decide whether these imposed functions are funded. Mackey v. McDonald, 255 Ark. 978, 504 S.W. 2d 726 (1974); Nevada County v. News Printing Company, 139 Ark. 502, 206 S.W. 899 (1918). Neither the quorum court nor the county judge has discretion to decide whether money shall be provided for the holding of elections. Ark. Stat. Ann. § 3-1207 (b) (Repl. 1976). In Polk County v. Mena Star Company, 175 Ark. 76, 298 S.W. 1002 (1927), we stated:

*** The holding of elections, printing ballots, poll-books, tally sheets and other election supplies; the feeding of prisoners confined in the county jail; the holding of courts of record and fees of justices of the peace; the salaries and fees of county officers, including the prosecuting attorneys; the making of assessments and tax books, and collecting taxes, are all necessary county expenses imposed by law, over which the county court has no control or discretion, except possibly the amount to be allowed for the service rendered, as all compensation is either fixed by law, or is provided for.

The election commission first contends that it requested an appropriation of $7,500 which included $3,000 for the setting up and the laying out of ballot forms and $3,500 for the setting up and programming of the voting machines. It then argues that since the quorum court appropriated only $3,500 of that request there was a failure of the quorum court to act on the requested $3,000 appropriation for the preparation of ballot forms and consequently the quorum court denied any appropriation for “set up ballots and layouts for machines.” Thus, it is argued, the quorum court failed to appropriate funds for a necessary expense imposed by law and therefore it fits within the exception and no appropriation is necessary. The evidence does not support such a contention. The quorum court heard the request for the two categories of expenses, consolidated them, and appropriated $3,500 for both.

The commission alternatively contends that Ark. Stat. Ann. § 17-3807 (c) (Repl. 1980) gives it the sole authority to determine the amount of money necessary to conduct an election. This statute provides a limitation on the legislative powers of the quorum court on “all laws requiring elections.” The statute reserves to the General Assembly decisions regarding the holding of elections. For example, state law establishes a uniform time for all polling places to open and close, state law determines the number of poll workers to be located at each polling place in the state, and state law determines the date of the elections. Utter chaos would result if these general matters were varied from county to county. The General Assembly has delegated some local matters, for example local sales tax elections. Ark. Stat. Ann. § 17-2010et seq. (Supp. 1981). However, it was not intended that the quorum courts be deprived of their fiscal authority over the funding of elections. We find no statute which gives the election commission the discretion to decide how much money it can spend. The amount allowed for voting machine preparation is not fixed by state law and there is nothing in Amendment 55, the revision of county government amendment, and nothing in Ark. Stat. Ann. §§17-3101 through 17-4208 (Repl. 1980 and Supp. 1981), the County Government Code, to prohibit or to curtail the power of the quorum court from exercising its discretion on the amount to be allowed, so long as it is reasonable.

The trial court ruled that the commission action “was not without reasonable basis” in setting the amount at $7,500. That is an erroneous application of the law because such a standard means that an agency of county government which is obligated by law to perform a specified function has the discretion to determine the amount of money to be spent, rather than the quorum court. We hold that an agency of county government which performs a function imposed by law must live within its appropriation unless that appropriation is unreasonable. Appropriations made by the quorum court are presumed to be reasonable and the burden rests on the entity filing the claim in excess of an appropriation to prove unreasonableness.

Appeals from an executive action of the county judge to the circuit court are tried de novo. Ark. Stat. Ann. §§ 17-3906 (2) (Repl. 1980) and 27-2006 (Repl. 1979). When the circuit judge tries the appeal de novo and that decision in turn is appealed, the evidence in this court is to be viewed in the light most favorable to the appellee and the decision of the circuit judge is to be affirmed unless clearly erroneous. Ark. R. Civ. P. 52, Vol. 3A (Repl. 1979).

Using that standard, we conclude that the ruling below must be reversed. The appropriation is presumed to be reasonable and the appellees had the burden of proving unreasonableness. The evidence going to unreasonableness is that the low bidders had no experience, yet it is clear that they were intelligent enough to perform the work and that they would attend a short course to learn the job. On the other hand, the appellant county proved that the quorum court compared costs with other counties and inquired of the manufacturer before making the appropriation. The quorum court noted that the previous contracts for these services had been entered without open bidding and bidding was requested. The commission then advertised for bids and one of the bids received was within the appropriation. The appropriation was not proved to be unreasonable. On direct appeal we reverse the decison of the trial court to the extent it exceeds the $3,500 appropriation.

On cross-appeal the commission contends that its decision to pay poll workers $50.00 per day, rather than the allocated $25.00, is a decision solely within the province of the commission and therefore the claim for the higher figure should be allowed. The circuit judge only allowed the appropriated $25.00 per worker and we affirm.

The General Assembly has set a minimum, or floor, on the amount to be paid poll workers and has given the quorum court the authority to raise the amount. Ark. Stat. Ann. § 3-720 (Repl. 1976) provides:

The judges, clerks and sheriffs of the election shall receive a minimum of seven dollars and fifty cents ($7.50) for holding an election, or such greater amount as may be appropriated by the Quorum Court of the County. Provided, further, that each judge of the election carrying the returns from his precinct to the County Board of Election Commissioners’ office (or County Committee’s office) shall be allowed five cents (5 cents) per mile.

The commission contends that the above-quoted statute is inconsistent with Ark. Stat. Ann. § 3-506 (f) (Repl.-1976) which provides:

The County Election Commissioners shall certify to the County Court the per diem of judges and clerks of election and sheriffs of election, and the mileage of the judge carrying the returns to the County Election Commissioner’s office for allowance.

These statutes are not in conflict. The first provides that the quorum court shall set the amount and the second provides that the commission shall compute and then certify to the county court the amount necessary to pay each poll worker his or her set per diem, along with mileage in the case of a judge carrying the returns back to the commission. The amount set per day is not unreasonable. The commission’s duty is to certify the amount necessary to pay each worker the set per diem.

Reversed on direct appeal.

Affirmed on cross-appeal.