author: W.H. “Dub” Arnold, Chief Justice. Ray Thornton, Justice,

text:
    Larry Paul MORGAN v. STATE of Arkansas
    CR 97-943
    971 S.W.2d 219
    Supreme Court of Arkansas
    Opinion delivered May 21, 1998
    [Petition for rehearing denied June 25, 1998.]

      Johnson & Richards, P.L.L.C., by: B. Kenneth Johnson, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Asst. Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellant, Larry Paul Morgan, raises five separate points on appeal relating to his conviction of first-degree murder. Specifically, Morgan argues that (1) the trial court erred by denying his motion to dismiss pursuant to Ark. R. Crim. P. 28 (1997); (2) the trial court abused its discretion by denying his motion for a continuance; (3) the trial court erred by denying his motion for dismissal or a directed verdict; (4) the trial court abused its discretion by denying his motion for order of acquittal; and (5) the trial court erred by excluding evidence admissible under Ark. R. Evid. 401 (1997). Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 1-2(a)(2) (1997) as the record in this appeal was lodged before September 1, 1997, the effective date of our appellate jurisdiction rule change. Finding no error, we affirm the trial court on all points.

On January 23, 1997, Morgan was convicted of first-degree murder and sentenced to forty years’ imprisonment in the Arkansas Department of Corrections. As early as June of 1994, Dr. Warren Douglas, a Little Rock psychiatrist, treated Morgan for mental problems. Dr. Douglas initially diagnosed Morgan with an adjustment disorder with depressed mood or possibly circumscribed paranoia and treated Morgan with medication and counseling. On February 14, 1995, Dr. Douglas changed his diagnosis to delusional paranoid disorder, and on March 8, 1995, two days before the murder, he urged Morgan to voluntarily admit himself to the hospital for treatment. Morgan refused.

Morgan described his delusions of persecution, including his belief in conspiracies by his employer, Dr. Douglas, and his family, to assassinate him. He also explained that these delusions prevented him from sleeping, eating, or going upstairs in his home, where he heard people coming out of his attic. Additionally, Morgan claimed that his own family feared him and refused to permit him to stay with them. For example, on March 9, 1995, Morgan contacted his son and asked to be picked up and taken to a safe place. The two rode around for approximately eight and one-half hours before Morgan was returned to his home. On March 10, 1995, Morgan killed his wife, Linda Morgan, by stabbing her approximately twenty-five times with a knife. In his defense, Morgan claimed that he was suffering from a paranoid delusional disorder and that he was not responsible for his actions.

I. Speedy Trial

On January 21, 1997, Morgan filed a motion to dismiss the case against him, arguing that the state had violated the provisions of Ark. R. Crim. P. 28.1(c) and 28.2(a) (1997), which require the State to try Morgan within twelve months of the date of his arrest, March 10, 1995, excluding any periods of delay authorized by Ark. R. Crim. P. 28.3 (1997). After hearing oral arguments on the issue of excluded periods, the trial court determined that three periods of time were excludable since Morgan’s arrest and denied the motion to dismiss. Morgan’s trial began on January 21, 1997, 318 days after the speedy-trial date expired. Therefore, the State has the burden of showing that the delay was the result of Morgan’s conduct or was otherwise justified. See Wallace v. State, 314 Ark. 247, 254, 862 S.W.2d 235 (1993). In this case, the State met its burden and demonstrated that at least 330 days were properly excludable.

Ark. R. Crim. P. 28.3(a) excludes from the speedy-trial calculation the delay period resulting from an examination and hearing on a defendant’s competency. Rule 28.3(a) also excludes the period during which a defendant is incompetent to stand trial. Here, the trial court found two excludable periods related to Morgan’s competency. First, the court excluded the period between March 17, 1995, and June 14, 1995, for a total of eighty-nine days. March 17, 1995, represents the day the court entered an order for Morgan’s mental evaluation, and June 14, 1995, represents the day the results of that examination were filed with the court. The period of time from the date an exam is ordered to the report’s file date is properly excludable for speedy-trial purposes. See Brawley v. State, 306 Ark. 609, 612-13, 816 S.W.2d 598 (1991). Accordingly, the trial court correctly excluded this eighty-nine-day period.

The second period excluded by the trial court began October 30, 1995, and ended May 16, 1996, totaling 199 days. On October 30, 1995, Morgan requested a transfer to the Arkansas State Hospital, citing his deteriorating mental condition and need for treatment and evaluation. On November 7, 1995, the trial court entered an order granting commitment to the State Hospital for Morgan to be evaluated. After the State Hospital informed the trial court, on January 10, 1996, that Morgan was not fit to proceed to trial, the trial court entered an order committing Morgan to the hospital until his competency to proceed was restored. The State Hospital noted in a report dated May 16, 1996, that Morgan was fit to proceed to trial. Since Rule 28.3(a) excludes the period during which a defendant is incompetent to stand trial, the trial court properly excluded this 199-day period. Significantly, even the delay resulting from a defendant’s request for a second mental evaluation is chargeable to the defendant. See Mack v. State, 321 Ark. 547, 550-51, 905 S.W.2d 842 (1995).

The third period excluded by the trial court resulted from Morgan’s request for a continuance. Morgan filed a motion seeking a continuance based on the unavailability of a witness. Although the trial had been set for December 10, 1996, the trial court granted the continuance and reset the trial for January 21, 1997, charging the forty-two-day delay to Morgan. Ark. R. Crim. P. 28.3(c) permits the exclusion of the delay period resulting from a continuance granted at a defendant’s request. See also Smith v. State, 313 Ark. 93, 852 S.W.2d 109 (1993). Accordingly, the trial court did not err by excluding this forty-two-day period. The three excluded periods total 330 days, and the State was required to evidence only 318 excludable days. Accordingly, Morgan’s right to a speedy trial was not violated, and the trial court did not err by denying his motion to dismiss.

II. Motion for Continuance

Prior to trial, Morgan’s expert witness, Dr. Travis Tunnell, a Little Rock psychologist, underwent heart surgery and notified Morgan that he would be unable to testify at trial on January 21, 1997. On January 20, 1997, Morgan filed a motion for a continuance, including Dr. Tunnell’s expected testimony and documentation indicating that he would be unable to testify for approximately two months. The trial court denied Morgan’s motion for continuance, finding that Dr. Tunnell’s testimony would be cumulative and that it was not indispensable.

Pursuant to Ark. R. Crim. P. 27.3, the trial court must grant a continuance upon a showing of good cause and only for as long as necessary, taking into account the request or consent of the prosecuting attorney or defense counsel and also the public interest in promptly disposing of the case. Further, a trial court should consider the following factors in making its determination whether to grant a continuance: (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the witness’s attendance if the trial is postponed; and (4) the filing of an affidavit stating what facts the witness would prove and that the appellant believes them to be true. See Turner v. State, 326 Ark. 115, 119, 931 S.W.2d 86 (1996).

Here, Morgan moved for the continuance one day prior to trial, and the effect of Dr. Tunnell’s testimony would have been cumulative. Subsequent to Morgan’s arrest on March 10, 1995, he was observed, tested, and evaluated by Dr. Walter Randolph Oglesby of Delta Counseling and Guidance; Dr. Susan Doi, an Arkansas State Hospital forensic psychologist; Dr. Oliver Hall, an Arkansas State Hospital psychiatrist; and Dr. James Dilday, an Arkansas State Hospital treating psychiatrist. Additionally, Morgan was tested and evaluated by Dr. Tunnell. All of the mental health experts agreed in their opinions that Morgan lacked the requisite mental intent to commit the charged offense. Dr. Tunnell agreed with those opinions.

In Henderson v. State, 310 Ark. 287, 292, 835 S.W.2d 865 (1992), this court upheld the denial of a motion for continuance where the witness’s testimony, if present, would have been cumulative. Morgan asserts that the ultimate issue at trial was his culpability and that Dr. Tunnell administered three unique psychological tests: the Rorschach test, the MMPI, and the Myers-Briggs test. However, Dr. Doi of the Arkansas State Hospital testified regarding the results of an MMPI test that Roger LeFleur of Delta Counseling had performed on Morgan. Dr. Doi also confirmed that the Myers-Briggs test is used for vocational purposes and would have no relevance to a forensic evaluation. Arguably, the only unique test administered by Dr. Tunnell was the Rorschach test. In any event, Dr. TunnelTs expected testimony confirmed that of the three psychiatrists and one forensic psychologist who did testify at trial. Accordingly, the trial court did not abuse its discretion in finding that the testimony would be cumulative and in denying Morgan’s motion for a continuance.

III. Motion for Dismissal or Directed Verdict

At the close of the State’s case and at the close of all evidence, Morgan moved for a directed verdict, arguing that the State failed to offer sufficient evidence to prove the requisite mental state for the charged offense. The trial court denied both motions for directed verdict, and the case went to the jury. Morgan contends that the trial court erred by denying his motion for a dismissal or directed verdict based on his affirmative defense that he was not guilty by reason of mental disease or defect. Morgan bears the burden of establishing his affirmative defense of insanity by a preponderance of the evidence. See Phillips v. State, 314 Ark. 531, 535, 863 S.W.2d 309 (1993). On appeal, our standard of review of a jury verdict rejecting the insanity defense is whether there was any substantial evidence to support the verdict. See Davasher v. State, 308 Ark. 154, 169, 823 S.W.2d 863 (1992), cert. denied, 504 U.S. 976. Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Phillips, 314 Ark. at 535. Moreover, this court will affirm the jury’s verdict if there is any substantial evidence to support the verdict. See id.

Morgan argues that no substantial evidence exists to support his verdict because all of the medical experts who testified at trial agreed that he was not responsible for his actions at the time of the murder and that he could not appreciate the criminality of his conduct. Most compellingly, Dr. Doi testified that objective psychological tests were unnecessary because “it was so clear that Mr. Morgan was psychotic at the time.” However, a jury is not bound to accept as true the opinion testimony of any witness, including the opinion testimony of experts. The jury is not bound to find an expert’s testimony conclusive nor is it bound to believe that testimony any more than that of other witnesses. See Burns v. State, 323 Ark. 206, 210, 913 S.W.2d 789 (1996); Davasher, 308 Ark. at 170. Significantly, even where several experts agree in their opinions and no opposing evidence is offered, the jury is still bound to decide the issue upon its own fair judgment. Davasher, 308 Ark. at 170.

In Davasher, we upheld the trial court’s denial of a motion for directed verdict on an affirmative defense, although the medical evidence was unrefuted that the defendant was not responsible for his actions at the time of the offense. Davasher, 308 Ark. 154. We also noted that “testimony by expert witnesses is to be considered by the jury in the same manner as other testimony and in light of other testimony and circumstances in the case.” Id. at 170. The jury alone determines the weight to give eviderice and may reject or accept all or any part of it; the jury is the sole arbiter of whether or not a defendant has sustained his burden of proving the insanity defense by a preponderance of the evidence; Phillips, 314 Ark. at 536. Although not argued in his brief, Morgan urges us to overrule the precedent of Davasher. However, this court does not consider arguments without authority or convincing argument where it is not apparent without further research that the argument is well-taken. Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997).

In addition to the expert medical testimony, the State offered lay testimony that the jury could believe indicated that Morgan appreciated the criminality of his actions. First, the police dispatcher testified that Morgan called the police department and stated that he thought he had killed his wife. Second, on cross-examination, Dr. Doi remarked that Morgan’s call to the police indicated that he knew he had done something wrong and that he knew the appropriate steps to take. Dr. Oglesby also acknowledged that Morgan was only sixty to seventy percent impaired in his ability to be culpable. Third, a videotape of Morgan’s police interview permitted the jury to observe firsthand Morgan’s demeanor in close proximity to the time of the offense. The video also exhibited Morgan’s request for an attorney and his knowledge that he was facing a serious charge.

Fourth, Deputy Tommy Cox testified regarding the crime scene and indications that the crime may have been premeditated and deliberate. For example, Deputy Cox remarked that only one of the three telephones was hooked up in the house, and one of the disconnected phones appeared to have been moved from an upstairs bedroom. Additionally, a vacuum cleaner was blocking a door opening into the hallway to the bedrooms that, Deputy Cox suggested, might have fallen off the top step when a door was opened to warn Morgan when his wife was coming downstairs. Fifth, the nearly twenty-five stab wounds offered proof of Morgan’s purpose, which the jury could believe suggested that Morgan was not insane at the time of the murder. See Dansby v. State, 319 Ark. 506, 515, 893 S.W.2d 331 (1995).

Even if the medical testimony was uncontroverted, the jury could have disbelieved or believed any witness testimony regarding Morgan’s insanity at the time of the murder, and there was sufficient evidence to submit the case to the jury and substantial evidence supporting the jury’s verdict. Accordingly, the trial court did not err by denying Morgan’s directed-verdict motion.

IV. Motion for Order of Acquittal

All of the doctors who examined Morgan diagnosed him with delusional disorder, persecutory type, and each opined that Morgan lacked the capacity to have the culpable mental state to commit the offense. In a May 16, 1996 report, Drs. Doi and Dilday requested that the trial court enter an order of acquittal pursuant to Ark. Code Ann. § 5-2-313 (Repl. 1997). However, after a hearing on June 17, 1996, the court denied the motion.

Morgan contends that the trial court abused its discretion by denying his motion for acquittal. He argues that the uncontroverted medical testimony and the jury’s ignorance of sentencing options (that Morgan could be committed to the State Hospital and not be set free, if found not guilty by reason of mental disease or defect) compels this court to reverse the trial court. Unfortunately, Morgan cites no relevant case law or persuasive authority to support his argument, and, as noted above, this court does not consider arguments without authority or convincing argument where it is not apparent without further research that the argument is well-taken. Matthews, 327 Ark. 70.

In any event, a court may, after a hearing if one is requested, enter a judgment of acquittal on the ground of mental disease or defect if the court is satisfied that the defendant lacked the capacity at the time of the conduct charged, as a result of mental disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct. Ark. Code Ann. § 5-2-313 (Repl. 1997). However, where there are questions of fact remaining concerning the defendant’s affirmative defense of insanity, a directed verdict of acquittal is properly denied. Phillips, 314 Ark. at 536-37. Notably, a trial court’s decision to direct an acquittal under section 5-2-313 is discretionary. Id. at 536. The State’s evidence offered to show premeditation raised questions of fact regarding Morgan’s affirmative defense of insanity that justified denying the motion for acquittal. Accordingly, the trial court did not abuse its discretion in denying Morgan’s motion for an order of acquittal.

V. Exclusion of Evidence

Morgan’s final point on appeal contests the trial court’s exclusion of an order committing Morgan to the State Hospital. Dr. Doi testified that Morgan was incompetent to stand trial as of January 10, 1996 and also reported that Morgan was committed to the State Hospital by court order until his fitness to proceed was restored. Dr. Doi provided a detailed report, introduced into evidence, analyzing Morgan’s mental condition. Decisions regarding the relevancy of evidence fall within the trial court’s broad discretion and are not reversed absent an abuse of that discretion. Bowden v. State, 328 Ark. 15, 17, 940 S.W.2d 494 (1997). Arguably, the fact that Morgan was committed to the State Hospital and incompetent to stand for trial approximately one year after the offense had no relevance to his competency on March 10, 1995, the date of the offense.

Even if the exclusion was error, it was harmless. Dr. Doi’s testimony and detailed report provided the best evidence of Morgan’s mental condition, and the commitment order merely provided cumulative evidence. See Jones v. State, 326 Ark. 61, 65-55, 931 S.W.2d 83 (1996), which held that evidentiary error is harmless if the same or similar evidence was otherwise introduced. Accordingly, the trial court did not abuse its discretion in refusing to admit the commitment order into evidence.

In conclusion, we affirm the trial court’s denial of appellant’s motion to dismiss; motion for a continuance; motion for dismissal or directed verdict; and motion for order of acquittal. We also affirm the trial court’s exclusion from evidence of an order committing appellant to the Arkansas State Hospital.

Newbern, Brown, and Thornton, JJ., dissent.

Ray Thornton, Justice,

dissenting. I cannot agree with the majority’s determination that the trial court did not err in denying Morgan’s motion for a continuance. Morgan moved for a continuance based on the unavailability of his expert witness, Dr. Travis Tunnell, a psychologist. Dr. Tunnell was the only defense expert that Morgan retained to examine him and to testify with respect to his affirmative defense of mental disease or defect. Dr. Tunnell had been served and was purportedly prepared to testify at the trial that was scheduled for January 21, 1997.

On January 7, 1997, Dr. Tunnell suffered a medical emergency that resulted in his undergoing open heart surgery. Morgan did not learn of Dr. Tunnell’s illness until Friday, January 17. He promptly filed a motion for a continuance on Monday, January 20, 1997, the day before the trial was scheduled to begin. Morgan stated in his motion that he had been informed that, as a consequence of the surgery, Dr. Tunnell would be unavailable to testify for approximately eight weeks. In his motion, Morgan requested that the trial be continued until Dr. Tunnell was able to appear and testify because Dr. Tunnell’s testimony was to be a vital part of his affirmative insanity defense. Morgan asserted that because Dr. Tunnell’s tests were unique and were administered at unique times during his incarceration, the testimony would not be cumulative. Morgan filed an affidavit stating that he expected Dr. Tunnell to testify that Morgan could not appreciate the criminality of his conduct or possess the requisite culpable mental state to commit the offense. The trial court denied Morgan’s motion, and the trial began on January 21, 1997.

Both the United States Constitution and the Arkansas Constitution expressly provide that the accused in all criminal prosecutions shall not only have the right to confront witnesses against him, but also “shall enjoy the right... to have compulsory process for obtaining witnesses in his favor.” U.S. Const, amend. 6; Ark. Const., art. II, § 10.

Ninety-five years ago, this court recognized the importance of preserving an accused’s constitutional rights to securing the testimony of his witnesses. Price v. State, 71 Ark. 180, 182, 71 S.W. 948, 949 (1903). In Price, the defendant had requested a continuance because of the absence of a witness who was extremely sick. The defendant followed the procedural requirements by setting forth the anticipated testimony of the witness in order to establish that the testimony was material to his defense. He also averred that the witness’s illness was not commonly fatal or of long duration. The trial court denied the motion for a continuance and ordered the witness’s deposition to be taken instead. The defendant objected, claiming his right to compulsory process to secure her attendance. In reversing the trial court’s denial of the motion for a continuance, we stated the following:

The fact that the witness was sick and unable to attend was not a circumstance to be made to work to the prejudice of the defendant. The state could better afford to suffer a continuance than to have one of her citizens deprived of evidence that might save him from a conviction of so grave a crime, and from so serious a punishment as incarceration in the penitentiary. While the subject of continuance is one over which the trial courts have a sound discretion, and their discretion will not be controlled except in cases where discretion is abused, yet in the latter case this court will not hesitate to reverse. We think the defendant has been deprived of evidence, without any fault of his own, which might possibly have secured a verdict of acquittal. This being true, the trial court erred in not granting the continuance as asked.

Id. at 182, 71 S.W. at 949.

It is well settled that a motion for a continuance is addressed to the sound discretion of the trial court, and a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. See, e.g., Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997). However, this court has previously stated that this discretion with which the court is vested is a “judicial discretion,” and not a discretion that can be exercised arbitrarily. King v. State, 177 Ark. 812, 815, 7 S.W.2d 987, 988 (1928); see also Burtv. State, 160 Ark. 201, 256 S.W. 361 (1923); cf. Wood v. State, 159 Ark. 671, 252 S.W. 897 (1923) (holding that the denial of the motion for a continuance was not an abuse of discretion where the appellant made no showing regarding the character or anticipated duration of the illness and made no application for attachment of the witness).

In the case at bar, the trial court, in denying Morgan’s motion for a continuance, was also looking at Morgan’s motion to dismiss for lack of speedy trial. We must carefully differentiate these rights.

In addressing motions for continuances, our Rules of Criminal Procedure provide that the “court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.” Ark. R. Crim. P. 27.3 (emphasis added). The United States Constitution and the Arkansas Constitution both contain provisions granting an accused the right to a speedy trial. U.S. Const. amend. 6; Ark. Const., art. II, § 10.

However, we have also stated that a speedy trial is desirable and proper only so long as it does not prevent the accused from receiving a fair trial. Bell v. State, 296 Ark. 458, 466, 757 S.W.2d 937, 941 (1988). In a similar vein, the federal court has determined that it was necessary to grant a motion for a continuance to make a potentially material witness available in order to serve the “ends of justice.” United States v. Brewer, 515 F. Supp. 644, 646 (E.D. Ark. 1981). The court specifically found that “the need for such continuance outweighs the best interest of the public and the defendant in a speedy trial.” Id.

Here, the trial court would not have prejudiced the State’s interest in bringing Morgan to trial within the parameters of our speedy-trial rule because the period of delay caused by Dr. Tunnell’s absence would clearly have been chargeable to Morgan. See Ark. R. Crim. P. 28.3(c).

The majority correctly lists four factors that the trial court should consider in determining whether a continuance should be granted. In my opinion, these factors have been met: (1) Morgan filed his motion three days, which included a weekend, after learning of Dr. Tunnell’s illness, thereby exercising due diligence in moving for the continuance; (2) Dr. Tunnell’s testimony was important because he was Morgan’s only retained expert witness to testify regarding his mental state, which was pivotal to the outcome of the trial; (3) it was highly likely that the trial court could have secured Dr. Tunnell’s attendance at trial in the event of a postponement; and (4) Morgan complied with our statutory requirement and filed an affidavit, stating not only what facts the witness would prove, but also that Morgan believed them to be true. Morgan also substantiated his motion with a letter from Dr. Tunnell’s treating physician, stating the nature and anticipated duration of Dr. Tunnell’s recovery.

In my view, consideration of these factors fully supported the request for a continuance. It is true that even without the help of his expert witness, Morgan was able to develop a consensus that he lacked the mental intent to commit the charged offense through examination of other witnesses, including the State’s expert witnesses. However, these witnesses had not testified regarding three psychological tests, which Dr. Tunnell performed on Morgan at unique times during his incarceration. Further, the jury did not accept the testimony of these witnesses as proving that Morgan was not guilty by reason of mental disease or defect at the time of the offense. The jury was not given the opportunity to consider the testimony of Morgan’s only retained expert witness in reaching its verdict. Dr. Tunnell’s absence at trial also meant that he was unable to assist Morgan in his examination of the State’s experts.

We have stated that a jury is not required to accept an expert’s opinion, see Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992), but I maintain that the jury should not be denied an opportunity to hear that testimony when the expert’s opinion is based on tests not administered by other experts and when that testimony could have easily been made available by granting the requested continuance. For the foregoing reasons, I believe that the trial court abused its discretion in denying Morgan’s motion for a continuance. I would reverse the trial court’s decision on this point.

Newbern and Brown, JJ., join in this dissent.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Jack CAMPBELL v. CITY OF CHEROKEE VILLAGE WEST, Arkansas
    97-1093
    969 S.W.2d 179
    Supreme Court of Arkansas
    Opinion delivered May 21, 1998

      Larry Dean Kissee, for appellant.

      Tom Thompson, for appellee.
   Donald L. Corbin, Justice.

Appellant Jack CampbeE appeals the judgment of the Fulton County Circuit Court dismissing with prejudice his complaint for injunction against the incorporation of AppeEee City of Cherokee VElage West. Appellant argues that the trial court erred in finding that he did not have standing to file a complaint for injunctive relief as provided in Ark. Code Ann. § 14-38-106 (Repl. 1998). As this appeal involves our interpretation and construction of an act of the General Assembly, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1—2(b)(6). We find merit to AppeEant’s argument and reverse.

The pertinent facts of this case are not in dispute. In 1996, residents living in Cherokee VElage petitioned the county courts of Fulton and Sharp Counties for the incorporation of a town named “Cherokee VElage, Arkansas.” As it stood at the time the petitions were signed, Cherokee VElage contained lands situated in both Fulton and Sharp Counties. A public hearing was held in Fulton County, with the county judges and representatives of both counties present. After the hearing, the Sharp County judge denied incorporation of the town, whEe the Fulton County judge approved the incorporation of a town to be named Cherokee VElage West. The order of incorporation was issued by the Fulton County judge on January 31, 1997.

On February 21, 1997, Appellant, a resident and qualified elector of Fulton County living within the incorporated boundary of Cherokee Village West, filed a complaint in the Fulton County Circuit Court to enjoin the incorporation of Cherokee Village West. The complaint alleged, among other things, that a majority of inhabitants of the newly incorporated town had not signed the petition for incorporation and that the limits of the incorporated town were unreasonably large and not sufficiently noted by legal description. Appellee filed a motion to dismiss the complaint for lack of standing, asserting that Appellant did not meet the qualifications of “any person interested,” as provided in Ark. Code Ann. §§ 14-38-103 and -106 (Repl. 1998), because he had not filed a written objection to the petition for incorporation or personally appeared at the public hearing and verbally objected to the incorporation of Cherokee Village West.

During the hearing on the motion to dismiss, the parties stipulated that Appellant did not personally appear at the hearing on the petition for incorporation, and that he did not file a written objection thereto. The parties further stipulated that Appellant, in fact, signed the petition in favor of the incorporation of Cherokee Village. The trial court dismissed the complaint and ruled that because Appellant had failed to contest the petition for incorporation in the county court, either by appearing and orally protesting or by filing a written protest, he was not an interested person as provided in sections 14-38-103 and -106. The trial court ruled, however, that Appellant was a resident within the affected area of incorporation and was therefore an interested party as discussed in City of Crossett v. Anthony, 250 Ark. 660, 466 S.W.2d 481 (1971). Notwithstanding such interest, the trial court held that Appellant had no standing to pursue an appeal of the county court’s decision in circuit court. This appeal followed.

The sole issue for our determination is whether a person must appear at the hearing on a petition for incorporation and contest the petition, as provided in section 14-38-103, in order to have standing to file a complaint for injunction in circuit court against such incorporation, as provided in section 14-38-106. Section 14-38-103 provides:

(a) (1) Every incorporation hearing under this chapter shall be public and may be adjourned from time to time.
(2) Any person interested may appear and contest the granting of the prayer of the petition, and affidavits in support of or against the petition, which may be prepared and submitted, shall be examined by the county court.
(b) (1) The court may, in its discretion, permit the agent named in the original petition to amend or change it.
(2) However, no amendment shall be permitted whereby territory not before embraced shall be added or the character of the proposed city or incorporated town changed from special to general, or from general to special, without appointing another time for a hearing and requiring new notice to be given as provided in 14-38-101. [Emphasis added.]

The use of the word “may,” as opposed to “shall,” in subsection (a)(2) indicates that the statute’s provision is permissive or discretionary, rather than mandatory. Hopper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997); Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). Use of the word “may” will be construed as “shall” only when the context of the statute requires such construction, as where the act that “may” be performed is the essence of the thing authorized by the statute. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991) (citing Taggart & Taggart Seed Co., Inc. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983)). Here, the essence of the thing authorized by section 14-38-103 is not the contest of the petition by any person interested; rather, the essence of that section is the establishment of specific procedures for public hearings on petitions for incorporation. Thus, it may be inferred that the General Assembly deliberately used “may” in section 14-38-103(a)(2) to designate that any interested persons could appear at the hearing and contest the petition for incorporation. See Hopper, 328 Ark. 516, 944 S.W.2d 540.

Section 14-38-106 provides:

(a) One (1) month shall elapse from the time the transcripts are forwarded and delivered before notice shall be given of an election of officers in the city or incorporated town.
(b) At any time within the one (1) month, any person interested may make complaint in writing, in the nature of an application for an injunction to the circuit court, or the judge in vacation, having given at least five (5) days’ notice thereof. He shall furnish a copy of the complaint to the agent of the petitioners for the purpose of having the organization of the proposed city or incorporated town prevented. [Emphasis added.]

The trial court construed this section as providing a method of appeal from the county court’s order granting incorporation. We do not agree with that construction.

Ordinarily, in order to appeal from a ruling by a county court, one must have been a party to the proceedings in the county court who was aggrieved by the court’s ruling. See Hall v. Rutherford, 89 Ark. 553, 117 S.W. 548 (1909); Turner v. Williamson, 77 Ark. 586, 92 S.W. 867 (1906); Whissen v. Furth, 73 Ark. 366, 84 S.W. 500 (1904). Arkansas Code Annotated § 16-67-201(a) (1987) provides a right of appeal to circuit court from all judgments and final orders of the county court at any time within six months after the rendition thereof “by the party aggrieved fifing an affidavit and prayer for an appeal with the clerk of the court in which the appeal is taken.” See also Ark. Const, art. 7, § 33. Here, we are not presented with a situation involving an appeal from the county court. Instead, we conclude that the right of action provided in section 14-38-106 is a separate and independent action taken by fifing a complaint in circuit court after incorporation has been approved by the county court, but before notice has been given of an election of officers for the incorporated town. Our reading of this section is consistent with the holding in Pike v. City of Stuttgart, 200 Ark. 1010, 142 S.W.2d 233 (1940).

In Pike, the city of Stuttgart initiated annexation proceedings that were opposed by the appellants. In an effort to determine the timeliness of the appellants’ appeal to circuit court, this court distinguished the right of appeal of the order of a county court to circuit court, from the right of action provided in § 9501 of Pope’s Digest, which permitted a complaint to be filed challenging an annexation order entered by the county court. Section 9501 provided in part:

If a majority of the votes cast on that question shall be in favor of annexation, the said corporation shall present to the county court a petition praying for such annexation. The like proceeding shall be had on said petition as is prescribed in §§ 9786-9788, so far as the same may be applicable, and if, within thirty days after a transcript shall be delivered as provided, no notice of complaint against such annexation shall be given at the end of said thirty days . . . the territory shall, in law, be deemed and taken to be included in and shall be a part of said corporation!.] [Emphasis added.]

In construing that section, this court held that the statutory provisions pertaining to the annexation of territory by agents of an existing municipal corporation “were intended to afford a right of action to parties claiming to be affected, but such action is an independent proceeding, as distinguished from appeal.” Id. at 1011-12, 142 S.W.2d at 234 (emphasis added). This holding is consistent with the contemporary decisions of this court concerning the definition of “any person interested,” as used in sections 14-38-103 and -106 and the corresponding annexation provision, currently codified as Ark. Code Ann. § 14-40-604 (Repl. 1998).

In City of Crossett, 250 Ark. 660, 466 S.W.2d 481, the electors of the city voted in favor of annexing two surrounding areas north and south of the city. The appellees filed a response opposing the petition for annexation in the county court. The county court denied the petition, and the city appealed. On appeal in the circuit court, the appellees again contested the annexation. The circuit court also denied the city’s petition for annexation. The city then appealed to this court, arguing in part that the circuit court had erred in denying its motion to dismiss the appellees’ remonstration on the ground that they lacked standing to contest the annexation of that area of land south of Crossett. This court agreed with the city and held that the appellees were not entitled to contest the petition for annexation of the land south of Crossett because they failed to show that they were interested persons under Ark. Stat. Ann. § 19-102 (Repl. 1968), which provided in part that “any person interested may appear and contest the granting the prayerf.]” The same language is currently found in section 14-38-103. This court wrote:

We hold, therefore, that “any person interested” as referred to in the statute, means any person who actually has some interest in the city or in the area to be annexed, and that at least some such interest must be shown on trial de novo in the circuit court in the face of a motion to dismiss for lack of interest.

Id. at 665, 466 S.W.2d at 485 (emphasis added).

Similarly, in Turner v. Wiederkehr Village, 261 Ark. 72, 546 S.W.2d 717 (1977), the appellant Turner challenged the incorporation of the village in circuit court. The circuit court granted the village’s motion to dismiss Turner’s challenge on the ground that he was not an interested person and thus had no standing to challenge the incorporation. Unlike the appellees in City of Crossett, Turner had not been a party to the proceeding on the petition for incorporation in the county court. Notwithstanding such distinction, this court’s determination that Turner was not a person interested turned not on the fact that he was not a party to the county court proceedings, but, rather, on the fact that he did not own property in the village, nor did he live in the village. Ratifying the holding in City of Crossett, this court stated that “[t]he legislature, in the interest of orderly and prompt procedure, unquestionably had the authority to restrict the right of protest to persons having a direct interest in the matter.” Id. at 73-74, 546 S.W.2d at 719.

Appellee relies on this court’s holdings in Barnwell v. Gravette, 87 Ark. 430, 112 S.W. 973 (1908), and Skinner v. City of El Dorado, 248 Ark. 916, 454 S.W.2d 656 (1970), in support of its argument that Appellant lacked standing to file a complaint in circuit court challenging the incorporation because he failed to protest the petition for incorporation in county court. At first glance, Appellee’s reliance on those holdings seems meritorious. Upon closer examination of the facts of those cases, however, we conclude that their holdings are not controlling here, as both cases involved appeals from the county court rulings, as opposed to the independent action of filing a complaint against incorporation in circuit court, as provided in section 14-38-106.

In Barnwell, 87 Ark. 430, 112 S.W. 973, the appellants, three remonstrants who had filed a petition against annexation in the county court, filed an appeal of the county court’s ruling in the circuit court. They also filed a complaint against the annexation in circuit court. This court did not, however, address the propriety of the complaint against annexation. The only issue before the Barnwell court was “whether the filling of the protest [in county court] was such a joining of the parties as to entitle them to appeal from the judgment annexing the designated territory[.]” Id. at 432-33, 112 S.W. at 973 (emphasis added). Consequently, the ultimate holding in that case, that one must have become a party to the proceedings in county court in order to appeal the county court’s ruling, is not determinative of the issue presented in this case. Moreover, to the extent that the Barnwell court may have construed § 5519 of Kirby’s Digest, which is identical in substance to § 9501 of Pope’s Digest reproduced herein, as providing only a method of direct appeal of the county court’s order of annexation, such construction was implicitly overruled by the subsequent holding in Pike, 200 Ark. 1010, 142 S.W.2d 233.

In Skinner, 248 Ark. 916, 454 S.W.2d 656, the issue presented was whether the three individual appellees had standing to appeal to circuit court from the order of the county court granting annexation. As with the holding in Barnwell, the Skinner court held that because the appellees had appeared in the county court and orally protested the annexation, they had standing to appeal the order granting annexation. An examination of the facts in Skinner reveals that the appellees filed an affidavit for appeal from the order granting annexation, as is required for appeals from county court. See section 16-67-201 (a). There is no indication that they also filed a complaint in circuit court. Thus, the holding in Skinner is limited to the issue of standing to pursue an appeal of a county court order in circuit court. This limited application is further evident by the fact that the Skinner court specifically declined to rule on the issue of whether the applicable period of time for pursuing the action in circuit court was thirty days, as provided in Ark. Stat. Ann. § 19-307 (Repl. 1968), which is substantially identical to § 9501 of Pope’s Digest, as opposed to a period of six months for appeals from county court. Additionally, the concurring opinion in Skinner illustrates what this court had previously clarified in Pike, that there are two distinct procedures for attacking county court orders annexing territory to a municipality — (1) appealing the county court’s decision to circuit court, and (2) filing a complaint against annexation in circuit court. The same may be said for the different methods of challenging the incorporation of a city.

We conclude that the foregoing cases may be read harmoniously in support of our conclusion that the legislature has not imposed the requirement that a citizen first appear in county court and contest a petition for incorporation in order to have standing to file a complaint against such incorporation in circuit court, as provided in section 14-38-106. Rather, that section requires only that a person filing a complaint against incorporation be a “person interested.” There is no requirement that he or she have been a party or a protestant to the proceedings in the county court. Recent case law has defined “any person interested” in terms of whether the person is directly affected by the incorporation or annexation, such that the person owns property or a business within the territory to be incorporated or annexed or, in the case of annexation, within the municipality to which the territory is to be annexed. We believe this is the appropriate test for determining a person’s interest under section 14-38-106.

Here, there is no dispute that Appellant is such a “person interested.” In fact, the trial court specifically found that Appellant was an interested person within the definition of that term set out in City of Crossett, 250 Ark. 660, 466 S.W.2d 481, as he was a resident of the area to be incorporated. Appellant thus has standing to bring a complaint against the incorporation of Cherokee Village West and is entitled to a hearing on the complaint as provided in Ark. Code Ann. § 14-38-107 (Repl. 1998). Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

       A motion was made during the hearing on the petition to amend the name of the incorporated town within Fulton County to “Cherokee Village ’West.” In the order granting the petition for incorporation of the town, the county judge permitted the name to be so amended.

       Final orders and judgments relating to bond issues must be appealed within thirty days.


text:
    Marcus VAN CAMP v. Diana K. VAN CAMP
    97-1052
    969 S.W.2d 184
    Supreme Court of Arkansas
    Opinion delivered May 21, 1998
    [Petition for rehearing denied June 18, 1998.]

      Grider Law Firm, by: Murrey L. Grider, for appellant.

      Goodwin Moore Colbert & Broadaway, by: Harry Truman Moore, for appellee.
   Donald L. Corbin, Justice.

The Randolph County Chancery Court granted Appellee Diana K. Van Camp’s motion to correct its previous order made pursuant to a 1991 divorce decree, which incorporated the property-settlement contract that she and Appellant Marcus Van Camp independently negotiated. This appeal was certified to us from the court of appeals, as it raises questions of interpretation and inconsistency in Arkansas case law; hence, our jurisdiction is pursuant-to Ark. Sup. Ct. R. 1-2(d) (2). Appellant raises one issue on appeal. We affirm.

The parties were divorced pursuant to a decree issued on May 10, 1991. The 1991 decree incorporated the parties’ independently negotiated property-settlement contract, which provided for post-majority monthly support for their two sons, Shawn and Scott, contingent upon them entering college the fall semester after graduating from high school, continuing college for four consecutive years, and living with Appellee during such time. The contract provided that child support would abate during any months that the sons did not live with Appellee. The contract also provided that Appellant was responsible for additional college-related expenses for both sons.

On October 1, 1993, Appellee petitioned for an increase in Scott’s monthly support, alleging a material change in circumstances, and for enforcement of other provisions under the decree related to Shawn’s college expenses. After conducting a hearing on the petition on November 24, 1993, the chancellor entered an order, filed September 7, 1994, granting Appellee the expenses due under the contract for Shawn, but denying her requested increase in Scott’s monthly support on the basis that there had not been a material change in circumstances. The 1994 order also reflected a change in the contracted support for Scott, indicating that, contrary to the parties’ negotiated agreement, support for Scott would continue only until age eighteen, with no provision for his support during college.

It is not disputed that neither party nor the chancellor addressed the issue of Scott’s post-majority support in their pleadings, correspondence, or during the hearing. Moreover, Appellant concedes that he did not move to modify or terminate Scott’s post-majority monthly support. Appellant did, however, cease making child support payments after June 1, 1996, following Scott’s graduation from high school in May, notwithstanding that Scott continued to live with Appellee and began attending the University of Arkansas at Little Rock the fall after he graduated.

Upon petition by Appellee that the 1994 order was not a true and accurate reflection of what was decided during the 1993 hearing regarding Scott’s post-majority support, the chancellor attempted to correct the 1994 order pursuant to ARCP Rule 60. As a result, the chancellor entered a new order on July 25, 1997, reflecting that the matter of Scott’s post-majority support was not before him during the 1993 hearing, and that the 1991 decree remained effective.

Appellant argues on appeal, as he did below, that the chancellor erred by correcting the 1994 order, as such action was untimely under Rule 60(a) and (b). We disagree and hold that Rule 60 is not applicable to the facts and circumstances of this case.

Upon de novo review of this case, we conclude that the 1994 and 1997 orders may be read in harmony with one another, as well as with the original 1991 divorce decree. The language in the 1994 order discontinuing Scott’s monthly support after he reached the age of eighteen had no effect on the parties’ original child-support agreement. The issue of the post-majority support of both children was negotiated and agreed upon by both parties pursuant to an independent property-settlement agreement, which was incorporated into the 1991 divorce decree. In other words, the establishment and amount of the children’s post-majority support was specifically contracted for by the parties prior to the entry of their divorce. Accordingly, under the particular facts of this case, the chancellor had no authority to modify or alter that support.

Ordinarily, the legal obligation of a parent to support a child ceases upon the child’s reaching majority. Towery v. Towery, 285 Ark. 113, 685 S.W.2d 155 (1985); Hogue v. Hogue, 262 Ark. 767, 561 S.W.2d 299 (1978); Worthington v. Worthington, 207 Ark. 185, 179 S.W.2d 648 (1944). In Arkansas, a child reaches majority at age eighteen. Towery, 285 Ark. 113, 685 S.W.2d 155. Where, however, a parent has elected to contractually bind himself or herself to support a child past the age of majority, such a contract is as binding and enforceable as any other contract. Worthington, 207 Ark. 185, 179 S.W.2d 648. In fact, a child may seek enforcement of a contract providing for post-majority support in his own behalf after he or she reaches the age of majority. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990).

Fundamental principles of contract law require that both parties to a contract agree to any modification of the contract. See Leonard v. Downing, 246 Ark. 397, 438 S.W.2d 327 (1969). Both parties must manifest assent to the modification of a contract and to the particular terms of such modification. Id. Here, there was no mutual agreement by the parties to the contract that the same should be modified to discontinue Scott’s post-majority support. To the contrary, the issue of modifying Scott’s post-majority support was never even raised by the parties. The chancellor thus had no authority to modify the terms of the Van Camps’ agreement without evidence of their mutual assent to the purported modification.

In sum, the 1994 order purporting to terminate Appellant’s legal obligation to support Scott past the age of majority, while he attended college, did not create any change in the obligations of the parties under their negotiated property-settlement agreement. It was thus not reversible error for the chancellor to “correct” that order by issuing the 1997 order reaffirming the parties’ original contractual obligations. We will affirm where the chancellor reached the right result, even if based on the wrong reasons. Marine Servs. Unlimited, Inc. v. Rakes, 323 Ark. 757, 918 S.W.2d 132 (1996).

Affirmed.


author: Robert L. Brown, Justice.

text:
    Ross Alan HOPE v. William W. HOPE, Sr., and Wanda Sue Flowers, as Trustee for the James Arthur and Mary Winborne Hope Irrevocable Trust v. Mary Winborne Hope, Cross-Appellant
    97-629
    969 S.W.2d 633
    Supreme Court of Arkansas
    Opinion delivered May 21, 1998

      Baxter and Jensen, by: Ray Baxter, for appellant.

      David E. Smith, for appellees.
   Robert L. Brown, Justice.

This case arises out of a contract and a deed to convey timber rights in a tract of land known as “the Ridgefield,” which consists of roughly 280 acres. There are essentially two issues on appeal: (1) whether the trial court erred in considering mutual mistake of fact as a basis for reformation following a motion to amend the pleadings to conform to the proof, and (2) whether the trial court clearly erred in finding that a mutual mistake of fact as to the intent of the parties had occurred. We affirm on both points.

Appellees, William W. Hope, Sr., and Wanda Sue Flowers (Trustees), are two of three Trustees for the James Arthur and Mary Winborne Hope Irrevocable Trust. The Trust owned the Ridgefield land, which was partially wooded and which was also used for pasture in the non-wooded areas. The Trustees are the children of James Arthur and Mary Winborne Hope, who were the beneficiaries of the Trust. In order to generate capital for the Trust, the Trustees sold the timber rights to the Ridgefield land to W. L. Sorrells and the WLS Sawmill (Sorrells) for $29,762.50 but limited this timber deed to harvesting hardwood trees. Sorrells was required under the timber deed to complete his removal of the timber by December 31, 1996, at which time his rights to the timber would expire. The Sorrells timber deed was executed by the Trustees on August 30, 1994.

Appellant, Ross Alan Hope, the nephew of the Trustees and the grandson of the beneficiaries of the Trust became aware of the Sorrells timber deed and interceded. His reason for doing so was that he discovered Sorrells intended to clear-cut the hardwood trees, and he believed that stripping the land would be contrary to the wishes of his grandfather and not in the best interests of the family. After several attempts to remedy the situation through his grandfather, Alan Hope approached the Trustees and objected to the arrangement with Sorrells. Trustee William W. Hope suggested to him that if he did not like the arrangement with Sorrells, then he should purchase the timber rights himself.

Subsequent to that conversation, Alan Hope arranged for Sorrells to rescind his agreement to buy the timber from the Trust. The resulting transaction was a three-way transfer. Trustee William W. Hope worked out a rescission agreement with Sorrells. Alan Hope gave a check to Trustee Hope made payable to Sorrells for $31,762.50. This sum included the original price Sorrells paid for the timber which was $29,762.50 plus $2,000 additional compensation for Sorrells’s agreement to rescind the arrangement. Trustee Hope delivered the check to Sorrells.

On September 25, 1994, the Trustees signed a Bill of Sale with Alan Hope for “all timber rights” on the Ridgefield land to include “all harvesting and planting of timber from henceforth” for a sales price of $29,762.50. On September 30, 1994, the Trustees executed a timber deed that conveyed the timber rights to him. Neither the contract nor the deed restricted Alan Hope to harvesting only hardwood trees. The granting clause of the deed read as follows:

[D]o hereby grant, bargain, sell and convey unto the Grantee, and unto his heirs and assigns forever, all of the standing and growing timber together with all timber rights on and associated with the two hundred eighty (280) acres known as the “Ridgefield”, timber rights to include all harvesting and planting of timber from henceforth.

In 1996, Alan Hope began planting seedlings in the open areas of the Ridgefield land which limited the land’s use as pasture. The Trustees requested that he stop planting the seedlings, and he informed the Trustees that he had been granted title under their deed to cut and plant trees on the land “henceforth.” The Trustees rejoined that they had intended to convey to him the same interest in the timber that they had conveyed to Sorrells.

On March 12, 1996, the Trustees filed their amended complaint against Alan Hope and sought reformation of the timber deed in question. Their basis for reformation of the timber deed was unilateral mistake on the part of the Trustees and fraud and inequitable conduct by Alan Hope. After hearing testimony, the trial court found that the timber deed to Alan Hope did not reflect the intent of the parties and was, therefore, subject to reformation based on mutual mistake of fact.

By judgment dated March 18, 1997, the trial court reformed the deed to limit the interest transferred. The pivotal finding of the trial court reads:

3. The evidence showed that the Plaintiffs intended to sell and Defendant to buy only certain merchantable timber standing and growing on the Ridgefield properties on September 30, 1994. Yet, the timber deed in question purported to be a perpetual timber deed encompassing the entire 281 acres comprising the Ridgefield properties, which would equate to an outright conveyance for all practical intents and purposes. The Court, therefore, finds, that the granting clause which purported to convey to the Defendant all of the standing and growing timber rights, and rights to plant and harvest timber on the Ridgefield properties “forever” was the result of mutual mistake.

The trial court then reformed the timber deed to read:

[D]o thereby grant, bargain, sell and convey unto the said Grantee, and unto his heirs and assigns, all of the merchantable standing and growing timber as it exists as of September 30, 1994, on the two hundred eighty (280) acres known as “Ridgefield”, to be harvested within a reasonable time after September 30, 1994, such reasonable time to be consistent with good customary select-cutting practices recognized in the industry would indicate on their property as it was September 30, 1994.

The trial court also ordered in its judgment that if the parties could not agree within ten days on the selection of a registered forester to set the reasonable time necessary to remove the trees, the trial court would appoint one. Alan Hope now appeals the judgment of the trial court reforming the deed.

I. Pleadings Conformed to Proof

We first address Alan Hope’s contention that the trial court erred in permitting a non-specific motion to permit the Trustees to amend their complaint to conform to the proof presented at trial. At issue is the fact that the filed complaint asserted a reformation theory premised on unilateral mistake by one party and fraud or inequitable conduct by the other. The judgment of the trial court, however, based reformation on mutual mistake of fact.

Rule 15(b) of our Rules of Civil Procedure allows for the amendment of the pleadings to conform to the evidence introduced at trial:

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion. The court may grant a continuance to enable the objecting party to meet such evidence.

We initially observe several things about the Rule. It is liberal in its allowance of amendments to conform pleadings to proof and even contemplates an amendment after judgment. If no amendment is made, this does not affect the trial of issues not raised in the pleadings. Even when an objection is made that the issue was not included in the pleadings, which was not done in the instant case, the trial court may allow an amendment at its discretion. Moreover, we agree with the holding of the Court of Appeals that permitting the introduction of proof on an issue not raised in the pleadings constitutes an implied consent to trial on that issue. See In Re Estate of Tucker, 46 Ark. App. 322, 881 5. W.2d 226 (1994).

Here, Alan Hope contends that he had no notice of the mutual-mistake issue because there was no evidence or argument introduced of mutual mistake at trial. We disagree with that contention. We first observe that when the Trustees’ counsel moved to conform the pleadings to the proof at the end of the trial, Alan Hope’s counsel did not object. Moreover, a key issue at trial was what did Alan Hope intend to purchase with his timber deed on September 30, 1994. Testimony at trial from the Trustees was that their nephew intended to purchase the same timber rights as Sorrells, the difference being that he would not cut the timber. There was also proof that the sales price paid by Sorrells and the sales price set out in Alan Hope’s Bill of Sale were the same. There was also proof presented that what Alan Hope arguably received by the timber deed was more akin to a fee simple interest. This proof easily raises the issue that the resulting timber deed represented a mutual mistake of fact.

We hold that there was no manifest abuse of discretion by the trial court on this point. See Thompson v. Dunn, 319 Ark. 6, 889 S.W.2d 31 (1994).

II. Mutual Mistake

We turn next to the core issue in this appeal and that is whether the Trustees proved that the terms of the timber deed to Alan Hope did not reflect the intent of the parties and, thus, were the result of a mutual mistake of fact.

Both the trial court’s standard of review in reformation cases and our standard of review have been clearly set out in our prior decisions. Courts of equity have the authority to reform deeds when the evidence is clear, convincing, and decisive and when there has been a mutual mistake in drafting the instrument. Morton v. Park View Apartments, 315 Ark. 400, 868 S.W.2d 448 (1993); Falls v. Utley, 281 Ark. 481, 665 S.W.2d 862 (1984). The evidence necessary to justify a reformation based on mutual mistake need not be undisputed. Falls v. Utley, supra; Kohn v. Pearson, 282 Ark. 418, 670 S.W.2d 795 (1984). On appeal, we try these cases de novo. Kohn v. Pearson, supra; Warner v. Eslick, 239 Ark. 157, 388 S.W.2d 1 (1965). Our test on appeal is whether the trial court’s decision was clearly erroneous. Falls v. Utley, supra. See also Lambert v. Quinn, 32 Ark. App. 184, 798 S.W.2d 448 (1990).

Courts of equity will reform a writing to reflect the parties’ true intent when, by mistake, the parties fail to write down the agreement accurately. Kohn v. Pearson, supra, citing D. Dobbs, Remedies § 4.3 (1973). See also Morton v. Park View Apartments, supra.

Two cases, we believe, are instructive on the law in Arkansas on the reformation of deeds. See Falls v. Utley, supra; Warner v. Eslick, supra. In Warner v. Eslick, supra, the issue involved the property description in the deed and whether it should be reformed. In 1959, the grantee of a piece of land bought it and resided on the purchased property for 21/2 years. He then brought an ejectment suit against the grantor and contended that the deed’s property description included the grantor’s land as well. The grantor counterclaimed for reformation of the deed. Though the testimony on both sides was in sharp conflict, the trial court granted the grantor the reformation relief requested. On appeal, this court affirmed the reformation of the deed to reflect the parties’ intent based on mutual mistake and stated:

Hence the bare fact that Warner [the grantee] insists that he meant to buy whatever was described in the deed is not in itself necessarily sufficient to preclude a finding that a mutual mistake occurred. We must arrive at our conclusion from a study of the testimony as a whole.

Warner, 239 Ark. at 160, 388 S.W.2d at 3. This court concluded that a mutual mistake had occurred based on the circumstances of the case.

In Falls v. Utley, supra, the issue was whether the grantor intended to convey mineral rights to the grantee, when no reservation of mineral rights was included in the deed. The trial court found that he did not. Again, the proof of the parties was in considerable dispute. We affirmed and stated:

The chancellor observes the witnesses and is in a much better position than this court to determine the reliability of the witnesses. With all the other evidence pointing to a reservation of the mineral rights in the grantor, we are of the opinion the chancellor was not clearly erroneous in finding a mutual mistake. A court of equity has the power to correct mistakes in deeds and conform them to the intentions of the parties.

Falls, 281 Ark. at 483-84, 665 S.W.2d at 864.

The statement of the law of reformation expressed in Falls v. Utley, supra, is correct. Other jurisdictions have recently proclaimed that an instrument may be reformed based on mutual mistake of fact when its terms do not conform to the agreement or to the intent of the parties. See, e.g., Voss v. Brooks, 907 P.2d 465 (Alaska 1995); Guardian State Bank v. Stangl, 778 P.2d 1 (Utah 1989); Cherokee Water Company v. Fooderhause, 727 S.W.2d 605 (Tex. Ct. App. Texarkana 1987); Kendall v. Lowther, 356 N.W.2d 181 (Iowa 1984); Atchison v. Englewood, 568 P.2d 13 (Colo. 1977). See also 66 Am. Jur. 2d Reformation of Instruments § 13, p. 538.

We turn then to the case at hand. In addition to the language in the timber deed granting him timber rights “henceforth,” Alan Hope argues that Trustee Hope was experienced with deeds as an engineer and land surveyor and Trustee Flowers was a legal secretary of long standing. Both people, he contends, understood the significance of the terms of his timber deed and knew what was being conveyed.

The Trustees responded at trial with the expert testimony of David Reinold, an expert forester, land surveyor, and certified general appraiser. Reinold testified that if the language of the deed were to be upheld, the Trustees would retain nothing more than mineral and oil rights to the property as well as hunting rights. They would not be able to use the land for pasture, develop the land in any way, or even live there without interfering with Alan Hope’s timber rights. As a result, the deed, according to Remold, effectively transferred rights generally associated with the ownership of the land to Alan Hope. Remold estimated the fair market value for this transfer in fee simple at $193,900.

Viewing the testimony as a whole, as we must, we believe that the trial court was not clearly erroneous in its finding of a mutual mistake of fact in the wording of the deed as opposed to what the parties intended. The proof in this case confirms that what the Trustees and Alan Hope intended at the time of the contract and deed was a conveyance of essentially the same timber rights as those conveyed to Sorrells. What substantiates this conclusion is, first, the sales price for both transactions was the same — $29,762.50. Secondly, Trustees Hope and Flowers both testified that Aan Hope only wanted to stop the clear-cutting which would accord more with his grandfather’s wishes. The Trustees added that Alan Hope never asked to be granted an interest greater than that deeded to Sorrells. Both Trustees testified that they were of the opinion that Alan Hope was not going to cut any trees and that is why the category of trees to be harvested was unimportant.

Then there is the fact that Alan Hope agreed on cross-examination that he did not intend to take the Ridgefield land in fee simple. The effect, however, of what he maintains was conveyed to him would have been exactly that. By cutting the trees and planting seedlings in the pasture land “henceforth,” he effectively controlled surface rights to the entire property, except for hunting rights. Renting the pasture land was an important source of income for the beneficiaries of the Trust, both of whom were alive when the Alan Hope timber deed was executed. Preventing this rental income by growing trees in the pasture land would have run directly counter to the purpose of the Trust.

The trial court, of course, had the benefit of assessing the credibility of all the witnesses at trial. It concluded that Alan Hope intended one thing when the timber deed was executed to him on September 30, 1994, and quite another when he discovered that the deed could be read much more expansively. Much like the situation in Falls v. Utley, supra, and Warner v. Eslick, supra, here the parties intended something much different at the time the deed was signed from the way the timber deed could actually read. We cannot say the trial court clearly erred in concluding as much and reforming the deed instrument.

There is one additional point. The reformed timber deed allows for select cutting “within a reasonable time.” The judgment further provides that a registered forester will be agreed upon by the parties or appointed by the trial court to assist in determining what is a reasonable time for harvesting. Though neither party raised this issue, we conclude that this fact does not undercut the finality of this judgment.

Alan Hope testified at trial that he had already recouped $22,976.59 of his purchase price from timber sales. Counsel for both parties agreed in oral argument before this court that Alan Hope is close to realizing repayment of his full sales price for the timber. Presumably, a registered forester has already been selected by the parties to determine the “reasonable time” for harvesting, since select cutting is underway. Under these circumstances, we view the issues between the parties to be resolved. See Chambers v. Manning, 315 Ark. 369, 868 S.W.2d 64 (1993).

Affirmed.

Thornton, J., not participating.

Special Associate Justice H.E. Cummins joins.

       Both beneficiaries are now deceased.


author: Ray Thornton, Justice.

text:
    Lilly KILDOW v. BALDWIN PIANO & ORGAN
    97-828
    969 S.W.2d 190
    Supreme Court of Arkansas
    Opinion delivered May 21, 1998
    [Petition for rehearing denied June 25, 1998.]

      Mashburn & Taylor by: Timothy J. Myers, for appellant.

      Ledbetter, Hornberger, Cogbill, Arnold & Harrison, by: James A. Arnold, II, for appellee.
   Ray Thornton, Justice.

In this case, we are asked to decide whether carpal tunnel syndrome (CTS) is a per se compensable injury under the Workers’ Compensation Act, or whether a claimant must prove that it was caused by rapid repetitive motion. The Workers’ Compensation Commission, interpreting the Act to require proof of rapid repetitive motion, denied benefits to appellant Lilly Kildow for CTS, which she contends resulted from her job activities at Baldwin Piano Company. The Arkansas Court of Appeals reversed the Commission’s decision in part, and remanded the case for an award of benefits. See Kildow v. Baldwin Piano & Organ, 58 Ark. App. 194, 948 S.W.2d 100 (1997). We granted Baldwin Piano’s petition for review of that decision.

When we grant review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 383, 944 S.W.2d 524, 525 (1997). In the present case, we find error in the Commission’s decision and reverse and remand for further proceedings.

Ms. Kildow worked for Baldwin Piano as an electronic assembler from February 1993 to March 1994. As an assembly-line worker, her job consisted of securing small electrical components to a board with three to five wires. With a pair of pliers in her right hand, she would grab and twist wires around a post, pull one end of the wires through a hole in the board, flip the board over, twist and secure the wires to the back of the board, and send the board down the line. She worked eight to ten hours per day, five to six days per week throughout the course of her employment. She was allowed a few short breaks during the day.

In early 1994, Ms. Kildow began to experience pain, numbness, tingling, and burning in her right hand and arm, and aching pains in her left hand. After medical tests revealed CTS, she did not return to work. Believing her injuries to be work-related, Ms. Kildow filed a claim for workers’ compensation benefits. The administrative law judge (ALJ) ruled that Ms. Kildow failed to prove that her injury was caused by “rapid repetitive motion,” specifically, that the evidence did not show that the motion was rapid. The Commission affirmed the ALJ’s decision on the same grounds in a two to one vote.

On appeal to the Arkansas Court of Appeals, the appeals court agreed with the Commission’s interpretation that the governing statute requires a claimant to prove rapid repetitive motion. The court nonetheless determined that the Commission’s decision was not supported by substantial evidence, and reversed and remanded the matter to the Commission for an award of benefits. See Kildow, 58 Ark. App. at 203, 948 S.W.2d at 103-04.

Ms. Kildow’s primary argument for reversal is that the Commission erroneously interpreted Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Supp. 1997). Specifically, Ms. Kildow contends that it is not necessary to prove rapidity and repetition when CTS is explicitly defined as compensable in the statute.

Eligibility for benefits resulting from accidental injuries or death under the Workers’ Compensation Act is governed by section 11-9-102(5). When a claimant requests benefits for an injury characterized by gradual onset, section 11 — 9— 102(5) (A) (ii) controls, defining “compensable injury” as follows:

(5) (A) (ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by the time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition^]

The basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. Leathers v. Cotton, 332 Ark. 49, 52, 961 S.W.2d 32, 34 (1998) (citing Mountain Home Sch. Hist. v. T.M.J. Builders, 313 Ark. 661, 664, 858 S.W.2d 74, 76 (1993)). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute if possible. Locke v. Cook, 245 Ark. 787, 793, 434 S.W.2d 598, 601 (1968).

We will not substitute our judgment for that of an administrative agency unless the decision of the agency is arbitrary, capricious, or characterized by abuse of discretion. Social Work Licensing Bd. v. Moncebaiz, 332 Ark. 67, 71, 962 S.W.2d 797, 799 (1998). To reverse an agency’s decision because it is arbitrary and capricious, it must lack a rational basis or rely on a finding of fact based on an erroneous view of the law. Id. Although an agency’s interpretation is highly persuasive, where the statute is not ambiguous, we will not interpret it to mean anything other than what it says. Id.

In this case, the Commission erred in its interpretation of the law. The dissenting commissioner was correct in stating that the meaning of section 11-9-102(5)(A)(ii) is plain and unambiguous. That statute explicitly provides that CTS is both compensable and falls within the definition of rapid repetitive motion. To accept the Commission’s interpretation that CTS is merely a type of rapid and repetitive motion still requiring proof of that element would be to ignore the second sentence of the provision. We do not interpret statutes to create superfluity. The statute provides that CTS is specifically categorized as a compensable injury, not that it is categorized as a type of rapid repetitive motion. We will not add words to convey a meaning that is not there. Moreover, we will not disregard the legislative intent expressed in Ark. Code Ann. § 11-9-1001 (Repl. 1996) mandating strict and literal construction of the workers’ compensation statutes and admonishing the court to leave policy changes to the legislature.

Finally, the Act provides safeguards to protect employers from claims that are feigned. In addition to showing that the injury arose out of and in the course of employment, the claimant must also produce objective medical evidence that the injury is compensable (section 11-9-102(5)(D)); and for injuries falling within the definition of rapid repetitive motion, the claimant not only bears the burden of proof by a preponderance of evidence, but also must show that the alleged injury is the major cause of the disability or need for treatment (section 11-9-102(5) (E) (ii)).

As an alternative theory for reversal, Ms. Kildow argues that the Commission erred in finding that her injury was not caused by rapid repetitive motion. Because we hold that it is unnecessary to prove rapid repetitive motion when there is a diagnosis of CTS, we do not reach the merits of this argument. The order of the Commission is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


author: Per Curiam.

text:
    Larry DONIHOO v. STATE of Arkansas
    CR 97-766
    968 S.W.2d 626
    Supreme Court of Arkansas
    Opinion delivered May 21, 1998

      Charles A. Potter, for appellant.

      Appellant, pro se.
    No response.
   Per Curiam.

Appellant Larry Donihoo’s petition for Rule 37 relief was denied on March 11, 1997, and he filed a notice of appeal from that denial on March 31, 1997. Donihoo’s counsel, Charles A. Potter, sent a transcript of the case which was received by this court’s clerk on July 9, 1997, but counsel failed to file his brief which was due on August 18, 1997. As a consequence, the State filed its motion to dismiss on March 23, 1998, which we granted on April 16, 1998. On April 24, 1998, Donihoo’s counsel, Mr. Potter, moved to set aside our order dismissing the appeal, and in doing so, he conceded it was his responsibility to file a timely brief, but he faded to do so, which caused the dismissal. On May 13, 1998, Donihoo filed a pro se motion asking us to reinstate his appeal.

We grant Donihoo’s and his counsel’s motions, but because Mr. Potter without explanation has delayed nearly nine months in filing a brief, causing dismissal of Donihoo’s appeal, we order Mr. Potter to appear before this court on the 4th day of June, 1998, at 9:00 a.m., to show cause why he should not be held in contempt.

Corbin, J., not participating.


text:
    Jesse Dewayne WICKLIFFE v. STATE of Arkansas
    TEN 96-108
    968 S.W.2d 626
    Supreme Court of Arkansas
    Opinion delivered May 21, 1998

      A. Wayne Davis, for appellant.
    No response.
   Per Curiam.

On February 12, 1998, we issued an order holding Attorney A. Wayne Davis in contempt of court, and sentenced Mr. Davis by fines totalling $500.00. This court’s clerk, by letter dated February 13, 1998, informed Mr. Davis that his payment of fines was due March 14, 1998, unless other arrangements were made. Mr. Davis made no payment on or before March 14, nor has he sought arrangements to make payments on the fines. Because of his failure to pay the fines as directed, Mr. Davis is ordered to appear before this court on the 18th day of June, 1998, at 9:00 a.m., to show cause why he should not be held in contempt.


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

text:
    Anna MALONE v. TEXARKANA PUBLIC SCHOOLS
    97-1057
    969 S.W.2d 644
    Supreme Court of Arkansas
    Opinion delivered May 28, 1998

      Dowd, Harrelson, Moore & Giles, by: Greg Giles, for appellant.

      Roberts Law Firm, P.A., by: Mike Roberts and James D. Robertson, for appellee.

      Bridges, Young, Matthews & Drake PLC, by: Michael J. Dennis, for amicus curiae Arkansas Self-Insurer’s Association.
   W.H. “Dub” Arnold, Chief Justice.

This appeal involves the interpretation of “rapid repetitive motion,” under Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Supp. 1997), and a decision of the Arkansas Workers’ Compensation Commission finding that the appellant failed to establish a compensable injury. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 2-4 (1998). The specific points raised on appeal involve issues upon which there is a perceived inconsistency in the decisions of the Court of Appeals, significant issues needing clarification, and substantial questions of law concerning the interpretation of section 11-9-102(5)(A)(ii)(a). Finding no reversible error, we affirm the Commission’s decision.

Appellant, Anna Malone, worked as a custodian for the appellee, Texarkana Public Schools, for a period of six years. In December of 1994, Malone reported to her supervisor, Walter Gambill, symptoms of numbness and tingling in her hands. Mr. Gambill advised her to consult a doctor. Since first visiting a doctor on March 27, 1995, Malone has not returned to work. EMG and nerve conduction studies revealed that Malone suffers from bilateral carpal tunnel syndrome. Her treating physician, Dr. Robert Burton, concluded in a medical questionnaire dated September 21, 1995, that Malone’s carpal tunnel syndrome was due to the nature of her work.

Malone filed a workers’ compensation claim seeking temporary total disability benefits from March 27, 1995, and contended that her injury was compensable because her carpal tunnel syndrome was caused by the “rapid repetitive motion” of her job duties. The administrative law judge reviewing her claim concluded that Malone’s condition was not a compensable injury caused by “rapid repetitive motion,” as defined by Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Supp. 1997), and that she had failed to meet her burden of proving by a preponderance of the evidence that her bilateral carpal tunnel was the result of her work-related activities with the Texarkana Public Schools. At the time of the administrative proceeding, Malone was fifty years old and reported that she had never had any prior problems with her hands or elbows.

The Workers’ Compensation Commission affirmed and adopted the administrative law judge’s decision, finding that Malone had failed to prove by a preponderance of the evidence that her carpal tunnel syndrome was caused by “rapid repetitive motion.” Malone then appealed the Commission’s decision to the Arkansas Court of Appeals. In an unpublished opinion dated August 27, 1997, the Court of Appeals reversed and remanded the case, reasoning that the Commission had based its findings on a prior Commission decision, Baysinger v. Air Systems, Inc., Workers’ Compensation Commission, decision filed October 19, 1995, (Claim No. E316706), which was subsequently reversed by the Court of Appeals. See Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996). Additionally, the appellate court determined that Malone’s duties satisfied the requirements of rapid repetitive work and directed the Commission to reconsider Malone’s claim in light of its holding in Baysinger.

Subsequently, we granted review of the Court of Appeals’ decision. In the instant appeal Malone argues that the Court of Appeals correctly interpreted “rapid repetitive motion” and that the Commission erred by applying the wrong definition of that term in concluding that she failed to satisfy her burden of proof. Additionally, Malone contends that the Commission’s decision was not supported by substantial evidence.

I. “Rapid Repetitive Motion”

When we grant a petition to review a case decided by the Court of Appeals, we review it as if it was filed originally in this court. See Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997) (citing Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996)). Appellant and the appellee argue in their briefs on appeal that the construction of section 11-9-102(5)(A)(ii)(a) dictates our holding in this case. For example, in response to arguments raised in the appellee’s brief, Malone contended that the plain language of the statute specifically defines carpal tunnel syndrome as a compensable injury, thus ending our “rapid repetitive motion” analysis. We agree with the appellant. However, as discussed in oral argument, the parties agree that this argument was not presented below, and arguments not presented to the trial court are not reviewable on appeal. See Schueck v. Burris, 330 Ark. 780, 787, 957 S.W.2d 702 (1997) (citing Jamison v. Estate of Goodlett, 56 Ark. App. 71, 938 S.W.2d 865 (1997)).

We now address the Commission’s analysis of “rapid repetitive motion” in the instant case. In deciding the appellant’s claim, the Commission examined Malone’s job duties. Malone testified that she worked as a custodian for the appellee five nights per week, from approximately 3:30 p.m. until 12:00 a.m., and that she had a fifteen-minute break after the first two hours, a thirty-minute dinner break, and a fifteen-minute break after the next two hours. Malone’s daily routine included fifteen or sixteen steps, each involving different motions with her arms and hands. First, Malone dust mopped three halls, for approximately seven or eight minutes. Next, she cleaned two large bathrooms in approximately thirty minutes, including cleaning the commodes, walls, sinks, fixtures, mirrors, baseboards, restocking paper products, and mopping the floors. Next, she cleaned twenty-three classrooms, including emptying trash cans, replacing trash-can liners, vacuuming and cleaning chalk trays, emptying pencil sharpeners, cleaning desk tops and table tops, dusting, sweeping, and dust mopping. She also spent about five to ten minutes vacuuming each night, including three offices and one partially carpeted classroom.

In denying Malone’s claim for her failure to establish a compensable injury, the administrative law judge and the Commission interpreted the following statute defining a “compensable injury” as:

An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition.

Ark. Code Ann. § 11-9-102(5)(A)(ii) (Supp. 1997).

Specifically, in construing this statute, the administrative law judge relied on the Commission’s decision in Baysinger and determined that although Malone’s job involved the use of her hands in all of her duties, it did not require the “exact or almost exact movement again and again for prolonged periods of time sufficient to constitute rapid, repetitive motion.” However, in Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996), the Court of Appeals rejected this narrow definition of “rapid repetitive motion,” holding that it precluded multiple tasks from being considered together to satisfy the statute’s requirements. Similarly, in Kildow v. Baldwin Piano & Organ, 58 Ark. App. 194, 948 S.W.2d 100 (1997), the court of appeals rejected the “exact, or almost exactly, the same movement again and again” standard for constituting “rapid repetitive motion.”

Accordingly, we hold that the Commission erred by applying a definition of “rapid repetitive motion” that has been rejected and held “too restrictive.” Nevertheless, our inquiry does not end here; we must consider whether the Commission’s ultimate decision was supported by substantial evidence. Although the Commission applied an incorrect standard of proof, its decision should be affirmed if it reached the correct result. See R.J. “Bob” Jones Excavating Contractor, Inc. v. Fireman’s Ins. Co., 324 Ark. 282, 920 S.W.2d 483 (1996).

II. Substantial Evidence

We will affirm a decision of the Workers’ Compensation Commission if it is supported by substantial evidence. Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Further, the issue is not whether this court might reach a different result than the Commission but whether the evidence would have supported a contrary finding. We must affirm the Commission’s decision if reasonable minds could reach that decision. Lay v. United Parcel Serv., 58 Ark. App. 35, 944 S.W.2d 867 (1997).

Two apposite decisions have interpreted what is meant by the term “rapid repetitive motion.” By way of background, we note that the legislature did not establish guidelines as to what constitutes “rapid repetitive motion.” As a result, that determination has been made by the fact-finder in each case. The first notable case relevant to “rapid repetitive motion” was Baysinger, where the Court of Appeals rejected the narrow statutory construction requiring a claimant to prove that his carpal tunnel syndrome was the result of “exact, or almost exactly, the same movement again and again.” 55 Ark. App. 174. The appellant in Baysinger was a welder who used his hands to hammer, grind, shape, polish, and pound pieces of metal with heavy vibrating tools. Considering the combination of these job duties, the Baysinger decision appropriately expanded the strict definition of “rapid repetitive motion” to include multiple tasks involving different movements which could be considered together to satisfy the repetitive element of “rapid repetitive motion.”

Second, in Lay the Court of Appeals reviewed the factors that must be proved to find an injury compensable under the “rapid repetitive motion” theory. See Lay, 58 Ark. App. at 40. Specifically, a claimant must prove by a preponderance of the evidence that: (1) the injury arose out of and in the course of his employment; (2) the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; (3) the injury was caused by rapid repetitive motion; (4) the injury was a major cause of the disability or need for treatment; and (5) the injury must be established by medical evidence supported by objective findings. Id.

In Lay, the claimant’s duties included loading and unloading boxes and lifting a clipboard. The Commission rejected Lay’s claim for benefits, citing his failure to prove that Ins job was either rapid or repetitive. Significantly, the Commission applied the narrow definition of what constitutes “rapid repetitive motion,” later rejected in Baysinger. However, the Court of Appeals affirmed the Commission’s decision under the Baysinger analysis, which permitted consideration of multiple tasks, but noted that Lay’s duties failed to satisfy the second element, rapidity. Though the Court of Appeals advised that it was not providing a comprehensive definition of “rapid repetitive motion,” it determined that Lay’s tasks, separated by periods of several minutes or more, did not constitute rapid repetitive motion under the statute.

Reviewing these prior decisions interpreting “rapid repetitive motion,” the standard is a two-pronged test: (1) the tasks must be repetitive, and (2) the repetitive motion must be rapid. As a threshold issue, the tasks must be repetitive, or the rapidity element is not reached. Arguably, even repetitive tasks and rapid work, standing alone, do not satisfy the definition. The repetitive tasks must be completed rapidly. Here, Malone worked quickly and she performed many of the same tasks many times throughout the night. However, her job duties are more closely analogous to the UPS driver in Lay than the welder in Baysinger. Malone’s tasks shifted from one type of activity to another frequently, even though she repeated those same tasks again later. In Lay, the same movement, separated by several minutes, though performed many times in a day, did not satisfy the definition of rapid repetitive motion. The instant facts are less compelling because they entail many different movements, separated in time, though performed many times in a day. Based on these facts, reasonable minds could reach the decision that Malone’s duties do not satisfy the definition of “rapid repetitive motion.”

Further, Malone’s supervisor testified that her custodial work was not rapid in nature and that when he observed her work, probably two or three times a week, she was not moving at a notably high rate of motion or speed. Moreover, the administrative law judge described the speed of Malone’s work, stating “I would not characterize the speed as being particularly fast, on the other hand, it wasn’t particularly slow. I can’t do much better than that.” The administrative law judge’s statement related his observation of a demonstration by Malone’s supervisor reenacting the speed with which Malone wiped a desk. Accordingly, the Commission had substantial evidence to conclude that the appellant’s job duties do not satisfy the definition of “rapid repetitive motion.” Although it reached its decision by applying the incorrect standard of proof, we conclude that the Commission’s finding that the appellant failed to establish a compensable injury was not erroneous, and we affirm.

Special Justice J. D. Moon joins in this opinion.

Brown, J., not participating.

       Last week, we handed down a decision in Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998), where the statutory-construction argument was raised by the parties at trial and was ripe for our consideration. In Kildow, we held that the plain language of Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Supp. 1997) indicates that the legislature specifically defined carpal tunnel syndrome as a compensable injury.