text:
    Alfred W. BOECKMANN v. Harlon Chris MITCHELL
    94-1024
    909 S.W.2d 308
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995

      Davis & Watson, P.A., by: Charles E. Davis, for appellant.

      Preston G. Hickey, for appellee.
   Bradley D. Jesson, Chief Justice.

The appellant, Alfred W. Boeckmann, appeals from a decree of the Cross County Chancery Court, in which the chancellor declared that an equal partnership existed between the parties for the operation of a tire business, and appointed a receiver. His sole point on appeal is that the evidence presented below was insufficient to support the chancellor’s finding that a partnership existed. The Court of Appeals certified the case to this court pursuant to ARAP 2(a)(7), which allows for an appeal from “an interlocutory order appointing a receiver,” and Ark. Sup. Ct. R. l-2(a)(12), which provides that this court has jurisdiction of interlocutory appeals permitted by ARAP 2. We affirm and remand.

Facts

On April 20, 1993, appellee Harlon Chris Mitchell filed a complaint in Cross County Chancery Court. In the complaint, he alleged that sometime prior to September 11, 1992, he and the appellant, Alfred W. Boeckmann, had entered into a verbal agreement whereby both parties would be equal partners in the ownership and management of Town & Country Tire & Auto, a tire business located in Wynne, Arkansas. According to Mitchell, as a part of this agreement, he and Boeckmann restructured the principal loan on the business by executing a note on September 11. Mitchell further alleged that he and Boeckmann agreed that they would have equal access to the business checking account, and that he was added as a signatory to the existing account. The two operated under this agreement for approximately six months until Boeckmann, without any advance notice, shut down the business, closed out the checking account, and had Mitchell removed from the premises by police.

In his complaint, Mitchell asked that the chancellor declare that a partnership existed and appoint a receiver to take immediate control of the business and for an accounting. In Boeckmann’s answer, he denied the existence of a partnership. According to Boeckmann, he placed Mitchell’s name on the note to help him establish a line of credit and put his name on the checking account to allow Mitchell to pay bills in his absence.

The chancellor conducted a hearing on May 12, 1993. Mitchell testified that in September of 1992, he was working on a farm with Boeckmann’s relatives when he learned of Boeckmann’s desire to sell his tire business. According to Mitchell, Boeckmann told him he would sell the business for $25,000.00. While Mitchell tried to get profit and loss statements from Boeckmann, all he could obtain was a profit and loss tax form, which he took to Cross County Bank. The bank denied the loan. Mitchell claimed the denial was due to Boeckmann’s failure to supply him the necessary financial documentation, while Boeckmann claimed the loan was denied because of Mitchell’s bad credit. It was Mitchell’s testimony that after the bank denied the loan, he and Boeckmann verbally agreed to an equal partnership arrangement. The two men then restructured the outstanding business loan. A fixed rate commercial promissory note was offered into evidence, indicating that the note was executed by Town & Country Tire & Auto as borrower, and Alfred W. Boeckmann and Harlon Chris Mitchell each as “owner.” Also admitted into evidence was a business checking account card listing Boeckmann as owner, and Mitchell and Carolyn Carter, secretary of the business, as authorized signatures.

According to Mitchell, at Boeckmann’s request for his tax purposes, no written partnership agreement was to be executed until the end of the year. In the meantime, Mitchell was to learn the tire business. Between September 1992 and April 1993, both parties worked at the business. During this period, Mitchell drew $250.00 per week and would write his own checks, while Boeckmann drew $160.00 per week, plus payment of medical insurance, truck insurance, personal taxes, and a gas allowance, the total of which was approximately $250.00 per week.

Problems developed between Mitchell and Boeckmann in February of 1993. Mitchell refused to sign a written agreement regarding the business relationship, claiming that it was not the original agreement. Soon thereafter, Boeckmann, without Mitchell’s knowledge, paid off the bank note and had Mitchell’s name removed from the signature card. When Mitchell refused to leave the premises of the business, Boeckmann called police.

Rick Phillips, an employee of Cross County Bank, testified that, by signing the September 11 promissory note, Boeckmann and Mitchell became jointly and severally liable for the total amount of the loan, or $18,508.62. Boeckmann’s home was listed as the security on the note.

Boeckmann testified that no partnership arrangement ever existed. According to Boeckmann, he agreed to sell one half of the business’s inventory to Mitchell for $15,000.00, but that the agreement fell through when Mitchell could not obtain the loan. He stated that he thought it would help Mitchell’s credit if he put Mitchell’s name on the note. It was Boeckmann’s position that Mitchell was an employee, and that he paid Mitchell a $250.00 weekly salary, as well as worker’s compensation, hospital insurance, and social security. Boeckmann agreed that there was some discussion regarding Mitchell purchasing a 10 percent partnership interest, but that there was never any discussion regarding an equal partnership interest. Boeckmann’s testimony was corroborated by his brother, attorney Joe Boeckmann.

On June 1, the chancellor issued a letter opinion indicating that, while the evidence was close, Mitchell had proved by a preponderance of the evidence that a partnership had been formed between the parties. In making this determination, the chancellor gave due consideration to the bank official, Rick Phillips, and the documentary evidence presented. The chancellor granted Mitchell’s request for an accounting, and requested briefs on the issue of whether it was necessary to appoint a receiver. On July 8, a temporary decree was filed, incorporating the chancellor’s letter opinion. In a letter brief submitted by Boeckmann on July 23, he objected to the appointment of a receiver. On February 9, 1994, the chancellor entered a supplemental decree, stating that a partnership existed, and appointing Jim Luker as receiver. In this decree, Luker was vested with authority to require either party to make available to him any documents pertaining to the business, including financial or bank statements. Boeckmann filed a notice of appeal on March 10.

Appellate court jurisdiction

The record does not show that an accounting has been completed. In fact, it indicates that Mitchell has filed two petitions for contempt since the decree at issue was entered. In these petitions, Mitchell complains that Boeckmann has not cooperated with the receiver in providing the necessary documents. The chancellor scheduled hearings on these petitions. In a subsequent decree, the chancellor appointed an accountant to perform a complete accounting of the partnership, and set the case for review. Thus, the order from which Boeckmann appeals is not a final judgment. Arkansas Rule of Appellate Procedure 2(a)(7) provides for an appeal from “an interlocutory order appointing a receiver.” Prior to the adoption of this rule, orders appointing receivers were appealable pursuant to statute. See Ark. Stat. Ann. § 27-2102 (Repl. 1979). Rule 2(a)(7) superseded this statute. In the Matter of Statutes Deemed Superseded by the Arkansas Rules of Appellate Procedure, 290 Ark. 616, 717 S.W.2d 491 (1986).

While the order from which Boeckmann appeals includes the appointment of Jim Luker as receiver, he does not specifically challenge this appointment. Instead, Boeckmann claims that the chancellor erred in her underlying ruling that an equal partnership existed.

Arkansas Rule of Civil Procedure 66 provides that courts of equity “may appoint receivers for any lawful purpose when such appointment shall be deemed necessary and proper.” We have observed that the appointment of receivers is ordinarily exercised “in conjunction with a pending proceeding, and rarely as a means in itself, but whenever unusual circumstances warrant.” Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985). Stated another way, receivership is ancillary to some proceeding over which the court has jurisdiction. Id. at 362. In Chapin, we discussed the inherent discretion of chancellors to appoint receivers, while recognizing that this power should be exercised with restraint and caution:

The power to appoint a receiver is, of course, a harsh and dangerous one. Kory v. Less, 180 Ark. 342, 22 S.W.2d 25 (1929). ‘The cases in which receivers ordinarily will be appointed are confined to those in which it can be established to the satisfaction of a court that the appointment of a receiver is necessary to save the property from injury or threatened loss or destruction, or that the claimants in possession are excluding another party from rights which the latter has in the land.’ Saylor v. Hilton, 190 Ky. 200, 226 S.W.2d 1067 (1921).

286 Ark. at 364. The appointment of a receiver is a significant step and can affect the substantial rights of the parties. It follows that review of the propriety of such an appointment be immediately available. This protection is provided by permitting interlocutory appeals of such orders. In reviewing these interlocutory appeals, it is necessary to include a review of the underlying issues which form the basis for the appointment of the receiver. We have similarly interpreted ARAP 2(a)(4), which provides for an appeal from “[a]n order which strikes out an answer, or any part of an answer,” to include this court’s review and ruling “on all issues dependent upon the stricken answer.” Arnold & Arnold v. Williams, 315 Ark. 632, 870 S.W.2d 365, cert. denied, 115 S.Ct. 489 (1994); Arnold Fireworks Display Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991). Thus, we will address the issue of whether the chancellor erred in determining that an equal partnership existed.

Existence of partnership

The Uniform Partnership Act is codified at Ark. Code Ann. § 4-42-101 et. seq. (Repl. 1994). A partnership is defined as “an association of two or more persons to carry on as co-owners a business for profit.” § 4-42-201(1). However, as we recognized in Zajac v. Harris, 241 Ark. 737, 410 S.W.2d 593 (1967), the term “partnership” is not easily elucidated:

The business association that is known in the law as partnership is not one that can be defined with precision. To the contrary, a partnership is a contractual relationship that may vary, in form and substance, in an almost infinite variety of ways.

241 Ark. at 738. Thus, we have said that the primary test of a partnership between the parties is their actual intent to form and operate a partnership. Gammill v. Gammill, 256 Ark. 671, 510 S.W.2d 66 (1974); Brandenburg v. Brandenburg, 234 Ark. 1117, 356 S.W.2d 625 (1962). See also Purser v. Kerr, 21 Ark. App. 233, 730 S.W.2d 917 (1987). The existence of a partnership need be proved only by a preponderance of the evidence. Brandenburg v. Brandenburg, supra. In his brief, Mitchell asserts that we must determine whether there was substantial evidence to support the chancellor’s findings. This is not the correct standard of review. We review chancery cases de novo, and will reverse only if the chancellor’s findings of fact are clearly erroneous. Sunbelt Exploration Co. v. Stephens, 320 Ark. 298, 896 S.W.2d 867 (1995); Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995).

The facts before us are distinguishable from those in Morrow v. McCaa Chevrolet Co., 231 Ark. 497, 330 S.W.2d 722 (1960), which Boeckmann cites in his brief. In Morrow, the appellant sought to establish that a partnership existed, yet admitted that an employer/employee relationship existed between himself and the appellee. Morrow also testified that he considered himself to be a sharecropper rather than a partner. His position was simply that because he received half of the profits from the business, he should have been declared a partner. We rejected appellant’s argument on the well-established principle that the sharing of profits alone does not make one a partner. 231 Ark. at 500. In the case before us, there was more evidence offered than the mere sharing of profits, and Mitchell denied that an employer/employee relationship existed.

While Boeckmann offered testimony that no partnership agreement was ever made and that he put Mitchell’s name on the loan to help his credit, the chancellor, who was in the best position to determine the credibility of the witnesses, evidently concluded that Mitchell was the more credible witness. In making her ruling, the chancellor specifically referred to the documentary evidence and to the testimony of the banker, Rick Phillips. In light of this evidence, we cannot conclude that the chancellor’s findings were clearly erroneous.

Affirmed and remanded.


source: Caselaw Access Project

author: Bradley D. Jesson, Chief Justice. Tom Glaze, Associate Justice,

license: Public Domain

text:
    Anthony Wayne GRIFFIN v. STATE of Arkansas
    CR 94-1105
    909 S.W.2d 625
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995
    [Petition for rehearing denied December 4, 1995.]

      Donald A. Forrest, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Senior Appellate Advocate, for appellee.
   Bradley D. Jesson, Chief Justice.

The appellant, Anthony Wayne Griffin, was charged and convicted of capital felony murder in Crittenden County Circuit Court and was sentenced to life imprisonment without parole. On appeal, he asserts seven points of error: (1) the trial court erred in failing to suppress statements Griffin made while in custody; (2) the trial court erred in refusing to grant his request for a continuance; (3) the overlapping between the capital murder and first-degree murder statutes allows the jury to make an unconstitutionally capricious choice of crime and punishment; (4) the trial court erred in refusing to give an instruction on second-degree murder; (5) the trial court erred in not granting a mistrial following a reference to crack cocaine; (6) the trial court erred in not granting a mistrial after mingling of jurors and witnesses; and (7) the trial court erred in failing to instruct the jury regarding the weight to be given to expert witnesses. We affirm.

Facts

On May 31, 1993, the body of Moten Wynne was discovered in the back bedroom of his home in Lehi, Arkansas. Lying face down with his hands and feet bound together and his mouth gagged, Wynne had been struck several times in the back of the head, apparently with an axe which was found nearby.

During custodial interrogation at the Clarksville, Tennessee Police Department, appellant Anthony Griffin confessed to the murder as follows. In late May of 1993, Griffin was working as an automobile mechanic for Willie Smith in Clarksville when he pocketed $500.00 that he had collected from one of Mr. Smith’s customers. He left with the money and headed west, arriving in West Memphis just before Memorial Day. While in the area, he saw the victim working on an automobile in the front yard of his home. Griffin helped Wynne repair the car, and Wynne gave Griffin two dollars and some cigarettes. Wynne flagged down a friend, and asked him to give Griffin a ride down to nearby Blue Lake. At the destination, Griffin did not have the $3.00 admission fee for Blue Lake, and hitchhiked back to Wynne’s house.

After Griffin and Wynne visited for approximately thirty minutes to one hour, Wynne announced that he had to get ready to go into town to eat. Griffin then hit the victim, making him lie down on the floor so that he could tie his hands and feet together. After dragging the victim to the back bedroom, Griffin “hog-tied” him, gagged him, and placed a blue blanket over his head. Griffin then searched the house and found two pistols, a shotgun, and a box of tools, all of which he loaded into Wynne’s automobile. Fearing that the victim might be able to get away, Griffin reentered the house, tore the phone off the wall, and hit Wynne in the head some five or six times with a hatchet. Griffin then left in Wynne’s car, later selling it in Nashville, Tennessee. Griffin likewise sold the three guns and the box of tools, while returning to Clarksville.

Griffin was charged by felony information in Crittenden County with capital felony murder. The State waived the death penalty. Over Griffin’s objection, the trial court admitted his four in-custodial statements to police, and a fifth statement given to Willie Smith by telephone. At the close of all the evidence, the jury returned a verdict finding Griffin guilty of capital felony murder. The trial court entered a judgment of conviction for capital felony murder and sentenced Griffin to life imprisonment without parole, from which he now appeals.

1. Admission of custodial statements

Appellant Griffin’s first allegation of error is that the trial court erred in denying his motion to suppress his four in-custodial statements to police, as well as a statement given to Willie Smith. While the record does not contain a written motion to suppress these statements, the trial court was evidently aware of Griffin’s objection to the admission of the statements, as it held an evidentiary Denno hearing on this issue in accordance with Jackson v. Denno, 378 U.S. 368 (1964), after which it declined to suppress Griffin’s statements.

At the hearing, Detective Marty Watson of the Clarksville, Tennessee Police Department testified that he was investigating Griffin on forgery charges and learned on June 14, 1993, that Griffin was in jail and wanted to talk to someone about the forgery case. At approximately 11:45 a.m. that day, Detective Watson went to the jail, read Griffin his rights, and had him sign a waiver-of-rights form. According to Detective Watson, Griffin told him that he would tell him everything he wanted to know, and “stuff’ that he did not know, if Detective Watson would permit him to smoke a cigarette. Detective Watson advised Griffin of the building’s “no smoking” policy, but Griffin would not talk to him without the cigarette, Detective Watson, for the purposes of his own notes, then wrote “refused” on the rights form. It was Detective Watson’s testimony that Griffin specifically told him that he was “not refusing it”; rather, Griffin stated he “just want[ed] a cigarette.” The officer returned to his office and related the situation to his sergeant, who advised him to check Griffin out of the jail and allow him to smoke a cigarette outside on the way to the interview room.

At approximately 2:00 p.m., while proceeding under the original waiver-of-rights form, Detective Watson interviewed Griffin, who gave him information about the forgeries as well as other crimes he had committed. During this interrogation, Detective Watson scratched out the “refused” notation on the rights form and signed his name beside the scratch-out. When Detective Watson asked Griffin if there was anything else he wanted to tell him, Griffin replied, “I don’t know how to tell you this, but I killed a man in West Memphis, Arkansas.” Griffin offered to draw a map to the victim’s house, and while doing so, Detective Watson left the room to get Detective Erin Kellett and to have someone contact West Memphis authorities to confirm Griffin’s story.

Detective Kellett testified that he entered the interview room and witnessed and signed the original rights form, noting that the time was 2:00 p.m. rather than 11:45 a.m. He also witnessed and signed a second rights form before taking both a written and a taped statement from Griffin. In each statement, Griffin confessed to committing the murder.

Detective R.W. Brockwell of the Crittenden County Sheriff’s Office testified that he arrived the next day, June 15, 1993, and interviewed Griffin at the Clarksville Police Department. After Brockwell read Griffin his rights, Griffin signed and initialed a waiver-of-rights form. Griffin then made both taped and written statements, in which he again confessed to the murder. Detective Brockwell, as well as Detectives Watson and Kellett, denied using any threats, force, or coercion to obtain the statements from Griffin.

Willie Smith testified that on June 15, 1993, Griffin’s sister, Mary Garrard, came by his place of business to tell him that Griffin wanted to talk to him. Later that afternoon, Mr. Smith went by Griffin’s mother’s residence, where he talked to Griffin on the telephone. According to Mr. Smith, Griffin confessed to him that he had committed the murder.

Griffin testified at the Denno hearing and denied that he had made any statements to police on June 14. According to Griffin, he told the Tennessee officers that he wanted to talk to someone about a murder that happened in Arkansas, but refused to make a statement until the Arkansas detectives arrived the next day. Griffin stated that on June 15, before his rights were read to him, Detectives Brockwell and Watkins took him outside to the top of the building so that the three could smoke cigarettes. According to Griffin, Detective Brockwell handed him a cigarette, then hit him in the head with a pistol. Griffin testified that Detective Brockwell threatened that if he did not say what he was told to say, he would push him off the side of the roof, then “give his family’s address to the victim’s family to come and kill them.” Griffin stated that he was then “carried” back downstairs where he was forced to give both a written and a taped statement. It was Griffin’s testimony that during his taped statement, Detective Brockwell hit him on at least two occasions, which explained “[a] whole bunch of pauses in the tape.”

Griffin claimed that, after giving statements to the officers, he was carried back down to the drunk tank, where he told either Jailer Anderson or Jailer Monzella, neither of whom was present during his statements to police, that his head was bleeding and that he needed to go to the hospital. According to Griffin, one of the jailers brought him an ice pack. Griffin also denied telling Willie Smith that he had committed the murder; rather, he contended that he merely told Mr. Smith that officers “had me for a murder case.” Griffin’s counsel proffered this testimony at the hearing. However, when asked by the trial court if the jailers could testify as to the nature and extent of the injuries Griffin had allegedly received, counsel replied that he was “not sure.” After oral arguments, the trial court denied the motion to suppress the five statements, finding that, by a preponderance of the evidence and under the totality of the circumstances, the statements were “voluntarily, knowingly, understandably and intelligently given,” and that Griffin had “voluntarily, knowingly, and intelligently waived his 5th and 6th Amendment Rights.”

In Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973), we adopted the rule that, whenever an accused offers testimony that his confession was induced by violence, threats, coercion or offers of reward, the State has the burden to produce all material witnesses who were connected with the controverted confession or give an adequate explanation of their absence. (Emphasis added.) As we recently recognized in Foreman v. State, 321 Ark. 167, 901 S.W.2d 802 (1995), we have repeated this rule many times. Remeta v. State, 300 Ark. 92, 777 S.W.2d 833 (1989); Williams v. State, 278 Ark. 9, 642 S.W.2d 887 (1982); Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979), cert. denied, 446 U.S. 938 (1980); Gammel & Spann v. State, 259 Ark. 96, 531 S.W.2d 474 (1976); Russey v. State, 257 Ark. 570, 519 S.W.2d 751 (1975); Northern v. State, 257 Ark. 549, 518 S.W.2d 482 (1975); Smith v. State, 256 Ark. 67, 505 S.W.2d 504 (1974).

In Bushong v. State, supra, we held that a constable who was present at the scene of Bushong’s arrest was not a material witness. In so holding, we stated as follows:

If we decide that he was a material witness, then we might as well say all witnesses who could possibly have witnessed anything must be called by the State. That is an unreasonable burden to place upon the State. There must be some connection between the alleged acts of coercion or an opportunity to observe the alleged coercion. This record gives no indication that [the constable] would have been a material witness in any regard except he happened to be present on the scene and might have observed something.

267 Ark. at 121. (Emphasis added.) We cannot conclude that the State was required to produce the jailers. There was no connection between them and the alleged acts of coercion, and they were not in a position to observe the alleged coercion.

While the record indicates that Griffin was given notice of his April 11, 1994, trial date on March 17, 1994, it is significant that Griffin did not enlist the aid of the prosecutor to obtain the presence of Anderson and Monzella until Friday, April 8, 1994, at approximately 4:00 p.m. Upon receiving the faxed subpoenas, the jailers’ supervisor related that he could not release them from work on such short notice. While the State never subpoenaed the jailers, the prosecutor explained at the Denno hearing that he “ha[d] no idea who the officers are, or anything.”

In deciding the issue of voluntariness in the absence of testimony from Anderson and Monzella, who were not present during the alleged coercive acts, the trial court was permitted to consider both Griffin’s eleventh-hour attempt to subpoena these witnesses, and counsel for Griffin’s concession at the hearing that he was “not sure” whether either officer could testify as to the nature and extent of injuries Griffin had allegedly received. Moreover, in making his decision, the trial judge, who was in the best position to assess the credibility of the witnesses, Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994), apparently concluded that the State’s witnesses were more credible than Griffin’s. In short, in examining the record before us, we conclude that the trial court did not abuse its discretion in failing to require the State to produce the two jailers, nor did it err in refusing to suppress Griffin’s statements.

Griffin also asserts that he was only read his Miranda rights in relation to the forgery charges against him in Tennessee, and was not Mirandized with respect to the homicide. We have previously addressed this issue in Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988), as follows:

It is not a violation of the rather rigid Miranda rules for the police to give one valid warning and then question the suspect about two or more different crimes. Hall v. State, 242 Ark. 201, 412 S.W.2d 603 (1967). Further, and distinguished from the argued police violation of the Miranda rules, a suspect’s awareness of all of the different charges in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege. Colorado v. Spring, 479 U.S. 564 (1987).

In contrast, the case cited by Griffin on this point, Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985), involved the issue of whether the statement Shelton gave an officer in his police car was the result of custodial interrogation, and, thus, required Miranda warnings. Here, the Tennessee officers gave Griffin a valid Miranda warning prior to questioning him about the forgery charges. The subject of the homicide arose after Detective Watson asked Griffin if there was anything else Griffin wanted to tell him. Under these circumstances, there was no violation.

II. Motion for continuance

For his second allegation of error, Griffin maintains that the trial court erred in denying his motion for continuance. At trial, Griffin requested a continuance in order to obtain the presence of three potential witnesses who had been subpoenaed for trial, but who had not honored the subpoenas. The absence of two of the three witnesses, Officers Anderson and Monzella of the Clarksville, Tennessee Police Department, was addressed in the first point above. The third witness, Jerry Parsons, was “the blond-haired guy” Griffin claimed actually murdered Mr. Wynne.

A motion for a continuance is addressed to the sound discretion of the trial court, and the court’s decision will not be reversed absent an abuse of discretion. Hill v. State, 321 Ark. 354, 902 S.W.2d 229 (1995). Ark. Code Ann. § 16-63-402(a)(1987) requires that, once the party opposing the motion for continuance has objected to the motion, the moving party must submit an affidavit to justify a continuance:

A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it.

See also Id. at 357. The State objected to the continuance at trial, and Griffin filed no affidavits in support of his motion. A trial court does not abuse its discretion in denying a request for continuance when the motion is not in substantial compliance with Ark. Code Ann. § 16-63-402(a). Id. Accordingly, we find no error on this point.

III. Overlap of offenses

Griffin next argues that the overlapping between the capital murder statute and the first-degree murder statute allows the jury to make an unconstitutionally capricious choice of crime and punishment, and that the phrase “circumstances manifesting extreme indifference to the value of human life” is so vague that it violates his right to equal protection of the law. The State is correct in its assertion that Griffin made no objection to either the capital felony murder or the first-degree murder instruction, and, thus, his argument is not preserved for our review. Nichols v. State, 306 Ark. 417, 422, 815 S.W.2d 382, 385 (1991).

IV. Instruction on second-degree murder

Griffin’s fourth point on appeal is that the trial court erred in refusing his request to instruct the jury with the definition of second-degree murder. See AMI Crim. 2d 1003. While the record reflects that Griffin did in fact request that the second-degree murder instruction be given to the jury, it is true, as the State argues, that a copy of this instruction does not appear in the record. It is the appellant’s duty to bring up a record sufficient to show that the trial court committed error. Claiborne v. State, 319 Ark. 537, 892 S.W.2d 511 (1995); Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). Because Griffin did not proffer the instruction on second-degree murder into the record, his argument that the trial court erred in refusing to so instruct the jury is not preserved for our review.

V. Motion for mistrial prior bad acts

Griffin’s next allegation of error is that the trial court should have granted his motion for mistrial after a State’s witness, Crittenden County Officer R.W. Brockwell, read into evidence Griffin’s June 15, 1993 handwritten in-custodial statement, which included the following sentence, “I left work with the money and went to Lincoln Homes to buy crack cocaine, Tuesday, 5/25/93.”

A mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial. Richmond v. State, 320 Ark. 566, 899 S.W.2d 64 (1995). We will not reverse a trial court’s decision to deny a motion for mistrial except for an abuse of discretion or manifest prejudice to the complaining party. Brown v. State, 320 Ark. 201, 895 S.W.2d 909 (1995).

Prior to opening statements, the trial court ruled, at Griffin’s request, that the State’s witnesses testifying about the circumstances of Griffin’s in-custodial statements were not to mention the specific criminal charges pending against Griffin in Tennessee. However, Griffin made no specific objection to the allusion to crack cocaine purchase in his in-custodial statement until it was read at trial. The trial court denied the motion for mistrial, ruling that it was untimely. However, the court offered both to caution the jury to disregard the reference to cocaine use, and to allow counsel to mark out the reference in the statement. While Griffin accepted the trial court’s offer, no such cautionary instruction was given to the jury. It was Griffin’s duty, as the moving party, to see that the trial court gave the cautionary instruction. Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989).

It is also significant that Griffin suffered no prejudice by the reference to his crack cocaine purchase. During Griffin’s case-in-chief, he testified on direct examination that, on the day he was arrested, he had visited a “dope house” and had smoked crack cocaine. We have said many times that evidence that is merely cumulative of other evidence admitted without objection is not prejudicial. Landrum v. State, 320 Ark. 81, 894 S.W.2d 933 (1995). Under these circumstances, we conclude that the trial court did not abuse its discretion in denying the motion for mistrial.

VI. Motion for mistrial juror contact with victim’s family

Griffin further alleges that the trial court erred in denying his motion for mistrial on the basis of improper contact during the trial between jurors and members of the victim’s family. During a recess at trial, juror Clayton and alternate juror Marconi were seen in a lounge where members of Mr. Wynne’s family were drinking coffee and talking. Griffin made a motion for mistrial claiming improper contact. The trial court denied the motion, and admonished the jury not to have contact with any of the parties, witnesses, or attorneys. The trial court asked the jurors if any of them had had a conversation with members of the victim’s family or any other witnesses and none responded in the affirmative. At the close of all the evidence, the trial court held a hearing relating to Griffin’s motion. Alternate juror Marconi testified that she and juror Clayton had discussed “speech therapy” in the attorney’s lounge while getting coffee. She denied having had any conversation with members of Mr. Wynne’s family, stating that she did not notice whether they were in the same room. Bailiff Boswell also testified at the hearing, stating that the jurors spoke with one another in the lounge and did not talk to any witnesses.

In Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977), the appellant moved for a mistrial after it was learned that the father of a murdered policeman had talked to one or more members of the jury during a recess. The trial court called the father to the witness stand, and was satisfied by his answers that nothing had been said which would prejudice a juror. We found no abuse of discretion in the trial court’s decision to deny the motion for mistrial, holding that such a meeting alone was not prejudicial error. As we stated in Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993), it is Griffin’s burden to demonstrate that a reasonable possibility of prejudice resulted from the contact. On the facts before us, it cannot be said that the trial court erred in denying Griffin’s motion for mistrial.

VII. Instruction expert witness

For his final point of error, Griffin claims that the trial court erred in failing to instruct the jury concerning the weight to be given to the testimony of the State’s expert witness, State Medical Examiner Dr. William Sturner, who performed the autopsy on the victim. Specifically, Griffin maintains that the trial court should have instructed the jury that it was not bound to accept Dr. Stumer’s testimony as conclusive. However, Griffin neither requested a special instruction on this point, nor did he proffer any such instruction to the trial court; therefore, the State is correct in its assertion that we cannot address the merits of his argument on appeal. Brown v. State, supra.

VIII. Compliance with Ark. Sup. Ct. R. 4-3(h)

Because Griffin received a sentence of life imprisonment without the possibility of parole, we must review all prejudicial erroneous rulings adverse to him pursuant to Ark. Sup. Ct. R. 4-3(h). While neither Griffin nor the State briefed Griffin’s objection to the admission of hearsay testimony at trial, we believe that it is necessary to discuss this issue.

During Griffin’s case, his counsel called Investigator Mike Morgan of the Crittenden County Public Defender’s Office as a witness, and inquired as to whether he had obtained any information regarding a “second suspect” in the case. Morgan replied that he had attempted to locate a “blond-headed guy” identified as Jerry Parsons, but had learned from a neighbor to Parsons’s mother in Memphis, Tennessee, that Parsons, a transient, currently lived in California. According to Morgan, he turned this information over to the Crittenden County Sheriff’s Department, which located Parsons in Gulfport, Mississippi, approximately two weeks prior to trial. When asked by Griffin if anyone had talked to Parsons, Morgan responded that it was his understanding that the sheriff’s department had talked to Parsons on the telephone, and that Parsons had denied having any involvement in the homicide.

On rebuttal, the State called Investigator Brockwell to the stand, and the following exchange took place:

PROSECUTOR: All right and what did Jerry Parsons tell you?
COUNSEL FOR GRIFFIN: Your Honor, I object. That’s nothing but rank hearsay. If Jerry Parsons wanted to testify, or they wanted to get him to testify, they should have had him here. That’s hearsay.
PROSECUTOR: Your Honor, I agree it’s hearsay, but they wanted to know. And I put the officer on the stand.
THE COURT: I’m going to overrule the objection.
PROSECUTOR: What did he tell you?
WITNESS: He said that in May of 1993 he was hitchhiking through Arkansas; he was picked up by a white male close to Memphis, is what he said; that he gave the man five ($5) dollars for gas, uh, they stopped at a truck stop, he said somewhere near West Memphis to sell some tools; that he had this individual drop him off in Memphis at his mother’s residence and that’s all he knew.

The State apparently elicited Brockwell’s testimony in response to Griffin’s inquiry of Morgan as to whether he had obtained any information on a “second suspect.” In a sense, when Morgan testified as to his attempts to locate a “blond-headed guy” identified as Jerry Parsons, Griffin opened the door to this line of questioning. In any event, as the prosecutor conceded, Investigator Brockwell’s testimony admitted here was hearsay. Arkansas Rule of Evidence 801(c) defines hearsay as follows:

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Furthermore, A.R.E. 802 provides that hearsay statements are inadmissible, unless the statements fall under an exception provided by law or the rules of evidence. None of the exceptions to the hearsay rule apply in this instance.

We have recognized that, under the Sixth Amendment Confrontation Clause, the State must usually either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992), citing Idaho v. Wright, 497 U.S. 805 (1990) and Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990). Yet trial error, even involving the Confrontation Clause, is subject to harmless error analysis. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995), citing Watson v. State, 318 Ark. 603, 887 S.W.2d 518 (1994) (citing Delaware v. Van Arsdale, 475 U.S.673 (1986) and Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987)). Griffin did not raise any constitutional objection to the admission of the hearsay statement, either below or on appeal, and has thus waived any constitutional argument. Gatlin v. State, supra; citing Killcrease v. State, supra. Therefore, we will not analyze the admission of the hearsay testimony under the constitutional standard of harmless beyond a reasonable doubt. Gatlin v. State, supra, citing Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994).

It was Griffin’s burden to produce a record that demonstrates he was prejudiced by the admission of the hearsay testimony, as we do not reverse for harmless error. Gatlin v. State, supra, citing Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985), and Wilson v. State, 317 Ark. 548, 878 S.W.2d 755 (1994). As the jury was permitted to consider five statements in which Griffin admitted to committing the murder, we cannot conclude that Griffin has overcome his burden of showing that he was prejudiced by the admission of the hearsay testimony.

Finding no erroneous rulings adverse to Griffin that cause reversal, we affirm the decision of the trial court.

Glaze and Roaf, JJ., concur.

Tom Glaze, Associate Justice,

concurring.

I concur on the majority opinion’s point one regarding the trial court’s admission of Anthony Griffin’s custodial statements. In sum, I submit it is unnecessary to affirm solely upon whether the trial court was correct in admitting Griffin’s controverted confessions he claims were coerced from him on June 15, 1993. The record clearly reflects and the trial court so found that Griffin gave officers two confessions on June 14, 1993, which were almost identical to the ones he claimed were coerced from him on June 15. Although Griffin at the Denno hearing denied he gave any statements on June 14, all of the evidence reflects otherwise. Griffin signed and initialed his Miranda rights dated June 14, 1993, and the authorities took both a written and taped statement from Griffin on the same date. On June 14, Griffin also drew a map of where his victim’s house was located. In addition, Griffin’s employer, Willie Smith, testified Griffin confessed to him when Smith spoke by telephone to Griffin on June 15.

In Arizona v. Fulminante, 499 U.S. 279 (1991), the Supreme Court held that a trial court’s admission of an involuntary confession is subject to harmless error review on appeal. In allowing for harmless error review where an involuntary confession is in issue, the Fulminante court cautioned that a confession is the most probative and damaging evidence that can be admitted against a defendant, and, if it is a full confession, a jury may be tempted to rely on it alone in reaching its decision. Nonetheless, an error is harmless if that confession was “unimportant in relation to everything else the jury considered on the issue in question as revealed in the record.” Yates v. Evatt, 500 U.S. 391 (1991); see also U.S. v. Jones, 16 F.3rd 275 (8th Cir. 1994).

In the present case, the record shows beyond a reasonable doubt that the jury would have convicted Griffin even absent his June 15 confessions. As alluded to above, Griffin gave three other confessions, admitting his having murdered the victim. One of these statements given on June 14 went into enormous detail. In that statement, he related the events leading up to seeing a man working on a vehicle, helping the man and later tying up the man and stealing the man’s guns, car and tools. Griffin left in the man’s car, but returned to kill the man. He also identified his victim’s house as the one he broke into. Other than his empty denial of making no statements on June 14, Griffin offered no evidence to contradict his June 14 signed rights form, written and taped statements, and his drawn map describing where his victim lived.

Whether Griffin’s June 15 statements were erroneously admitted into evidence is of no import, since the record bears evidence showing Griffin’s guilt beyond a reasonable doubt. In my view, the majority court’s discussion of whether the state withheld the names of material witnesses who may, or may not, have observed the taking of his June 15 statements unnecessarily complicates this point on review. Thus, I would affirm this suppression issue based upon harmless error.

Roaf, J., joins this concurrence.

       In adopting the material witness rule in Smith, we were persuaded by the Illinois Supreme Court’s position in People v. Armstrong, 282 N.E.2d 712 (1972). One distinguished member of this court questioned the propriety of the Smith rule soon after its adoption. Smith v. State, 256 Ark. 67, 505 S.W.2d 504 (1974)(Smith, J., dissenting). Subsequently, in Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979), cert. denied, 446 U.S. 938 (1980), we noted the Illinois Supreme Court’s extensive experience with this rule, and discussed six Illinois cases. In People v. R.D., 155 Ill.2d 122, 613 N.E.2d 706 (1993), the Illinois Supreme Court, noting that only a minority of states including Arkansas still followed it, repudiated the material witness rule entirely. In this case, the State has not asked us to repudiate the Smith rule, and we are not inclined to do so at this time.


author: Bradley D. Jesson, Chief Justice.

text:
    Huey Bruno “Chip” HICKS and Allegis Mortgage Corporation v. Joe E. MADDEN, Jr., Arkansas Securities Commissioner
    95-294
    908 S.W.2d 90
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995

      William Murphy, for appellants.

      Theodore Holder, Ass’t Sec. Comm’r, for appellee.
   Bradley D. Jesson, Chief Justice.

We are asked to review an order granting summary judgment in favor of the Arkansas Securities Commissioner. The chancellor ruled that the Commissioner was, as a matter of law, entitled to an injunction prohibiting the appellants from transacting business as a mortgage loan company or loan broker in the State of Arkansas. We find no error and affirm.

In late 1991 and early 1992, appellant Hicks began formation of Allegis Mortgage Company. He made inquiries at the Arkansas Securities Department (“the Department”) regarding registration and exemption requirements. He was given a copy of the Mortgage Loan Company and Loan Broker Act, which is codified at Ark. Code Ann. §§ 23-39-101 to 309 (Repl. 1994). The Act provides that a mortgage loan company wishing to do business in Arkansas must complete an application for registration containing, among other things, the applicant’s audited financial statements, must post a $25,000.00 surety bond, and must have a net worth of not less than $25,000.00. See Ark. Code Ann. §§ 23-39-301 to 305 (Repl. 1994).

On January 27, 1992, Hicks sent a letter to the Department claiming an exemption from the Act’s requirements. He based this claim on the fact that, as of January 23, 1992, Allegis had received approval from the Department of Veterans Affairs (“the VA”) to act as a prior approval lender on VA loans. Indeed, Ark. Code Ann. § 23-39-306(a)(4) (Repl. 1994) provides that a company shall be so exempt if the company is subject to licensing, supervision, or auditing by the VA. Nevertheless, the Department denied the exemption, noting that an auditor’s report submitted by Hicks showed Allegis to be technically insolvent.

At this point, a flurry of correspondence began among Hicks, the Department, and the VA. On February 3, 1992, the VA withdrew its approval of Allegis based on “misrepresentation of your status as a creditable mortgage corporation.” A few days earlier, the VA had received information that hot check charges had been filed against Hicks and that Hicks had failed to pay for office supplies. Next, the Department, citing the company’s insolvency, ordered Allegis and Hicks on February 7, 1992, to cease and desist from any loan mortgage or brokering activity.

Hicks immediately contacted both the Department and the VA in an attempt to explain the company’s situation and to ask for reconsideration. However, the Department maintained its position. The VA (by this time having received a copy of the Department’s cease and desist order) refused to reinstate its approval. The net effect of these events is that, other than the brief period of VA approval between January 23 and February 3, 1992, Hicks and Allegis were not authorized by any regulatory entity to conduct mortgage loan or brokerage business in Arkansas.

On April 14, 1992, the Commissioner filed suit in Pulaski County Chancery Court seeking an injunction against Allegis and Hicks. The petition alleged that the company was engaging in fraudulent business practices, was insolvent, and was doing business without a proper registration or exemption filing. Numerous documents were attached to the petition in which customers complained that they had paid various fees but had not received loans. Documents were also attached that showed that several appraisers and a credit bureau that had performed services for Allegis had not been paid.

The chancellor issued a temporary restraining order (TRO) on April 14, 1992, the same day the petition for injunctive relief was filed. The appellants moved to dissolve the TRO, denying insolvency and fraudulent business practices, and stating that, because Allegis was a VA approved lender, it was exempt from the registration, bond, and net worth requirements of state law. The TRO was temporarily lifted to allow the appellants to close three loans, but it otherwise remained in effect.

In February of 1994, the Commissioner apparently discovered for the first time that the appellants’ VA approval had been revoked on February 3, 1992. An amended petition for a permanent injunction was filed, containing the new allegation that the VA had withdrawn its approval. The appellants filed no response to this petition.

On September 23, 1994, the Commissioner filed his motion for summary judgment, which is the subject of this appeal. The motion set out three reasons why the Commissioner was entitled to injunctive relief as a matter of law: 1) since the appellants never answered the amended complaint, the averments therein were taken as admitted; 2) since VA approval had been revoked, the appellants were no longer exempt from state regulation; and 3) the company was insolvent. Ten exhibits were attached to the deposition. Exhibit one was the affidavit of VA loan officer Wilma Graham. Ms. Graham stated that the VA withdrew its approval by letter of February 3, 1992, because it received information that hot check charges had been filed against Hicks. She further stated that the approval had never been reinstated. Exhibits two through six were affidavits of Allegis customers. The customers detailed their transactions with Hicks and Allegis, once again stating that they had paid fees of various kinds but had not received loans. Importantly, the affidavits demonstrated that the business transactions took place between January 20, 1992, and late March of 1992, outside the eleven day “window” of VA approval. The final three exhibits were from appraisers who had performed work for Allegis and had not been paid. In particular, one appraiser stated that he had been paid with a check on which payment was stopped and later by a check written on a closed account.

The appellants responded to the motion by denying receipt of the amended complaint, denying that Allegis was insolvent, denying that the VA properly revoked its approval, and claiming that there were issues of fact to be decided. The appellants attached three exhibits to their response. First was the affidavit of Hicks stating that the VA approval was improperly revoked and that the Department had improperly denied the exemption. Second was the deposition of Wilma Graham, in which she stated that there was a possibility, though not a probability, that the VA would have reinstated its approval had it not received a copy of the Department’s cease and desist letter. Third were the exhibits to Ms. Graham’s affidavit, which primarily consisted of the correspondence among the parties in January and February of 1992.

A hearing was held on October 31, 1994. The chancellor granted the Commissioner’s motion for summary judgment. He based his ruling not only on the exhibits to the motion, but on the fact that the appellants had failed to respond to the Commissioner’s amended complaint filed February 3, 1994. Without reaching the issue of the appellants’ failure to respond to the amended complaint, we find that the chancellor’s decision to grant summary judgment was correct.

The Arkansas Securities Commissioner has been given the duties of general supervision and control over mortgage loan companies and brokers doing business in Arkansas. Ark. Code Ann. § 23-39-201 (Repl. 1994). Pursuant to those duties, the Commissioner may seek injunctive relief against a company whenever it appears that the company is engaging in practices prohibited by the act, or that the assets or capital of the company are impaired, or that the company’s affairs are in an unsafe condition. Ark. Code Ann. § 23-39-202 (Repl. 1994).

The exhibits to the Commissioner’s motion show conclusively that the appellants: 1) transacted mortgage loan business during a time when they were not authorized to do so, either by the department or the VA, 2) were not paying their bills and attempted to pay some bills with improper checking procedures, 3) took money from customers and provided no services in return, and 4) appeared, at least under the findings of one audit, to be undercapitalized. The appellants’ response did nothing to rebut the substance of these allegations. In the face of such evidence, the chancellor was correct to conclude that, at the very least, the appellants’ affairs were in an unsafe condition. Therefore, a proper showing was made for the issuance of the injunction.

The appellants make several arguments on appeal, none of which have merit. They claim that federal law mandates notice and opportunity for a hearing before VA approval is revoked. See 38 U.S.C. § 3704(d), which provides that, “subject to notice and an opportunity for a hearing,” a lender may be barred from acquiring VA loans. However, the chancellor noted correctly that such an argument should be presented to the VA. In Galloway v. Arkansas State Highway & Transp. Dept., 318 Ark. 303, 885 S.W.2d 17 (1994), we recognized that, in instances such as this one, enforcement of regulations regarding notice and hearings is not the responsibility of the state but of the particular federal agency involved.

The appellants also present two constitutional arguments. They claim that the Act violates the due process clause and the supremacy clause of the U.S. Constitution. Not one case or other citation of authority is given in support of these arguments. We will not address arguments unsupported by convincing argument or authority. Galloway, supra.

Finally, the appellants direct us to a definition of “loan broker,” which appears at Ark. Code Ann. § 23-39-401(B)(i)(j) (Repl. 1994). Whether this definition is helpful to appellants, or not, it is not applicable here. The cited statute is part of Act 140 of 1993 which, by the terms of its preamble, does not operate to alter any definitions which apply to the Mortgage Loan Company and Loan Broker Act.

Affirmed.

       At this point, the Commissioner was unaware that the VA had withdrawn its approval.

       At a later hearing, the Commissioner’s counsel explained that the term “insolvency” was being used in a broad sense to include the appellants’ assets being impaired and their affairs in an unsafe condition.


text:
    Jennings and Mitzi OSBORNE v. Arleta POWER, Dick Wallace, Joe H. Smith, Dennis Lucy, Tom Fiser, Catherine Cockrill
    93-1303
    908 S.W.2d 340
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995

      The Perroni Law Firm, P.A., by: Samuel A. Perroni', and John Pagan, for appellants.

      Wilson, Engstrom, Corum, Dudley & Coulter, by: Gary D. Corum, for appellees.
   Bradley D. Jesson, Chief Justice.

This contempt proceeding, an original action, follows our ruling on December 5, 1994, in which this court, on de novo review, issued an injunction against Jennings and Mitzi Osborne, enjoining them from placing massive Christmas light displays on and about their home on Cantrell Road in Little Rock. Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1994). We ordered the Osbornes to abate the nuisance, and remanded the case to the chancellor for enforcement of the injunction.

Thereafter, the Osbornes filed a motion for stay of mandate, in which they stated their intentions to file a petition for a writ of certiorari with the United States Supreme Court, and suggested that the injunction was extremely broad and vaguely worded. In a per curiam opinion delivered on December 16, 1994, we denied the stay and reiterated our earlier directives, noting that the injunction was “short, concise, and readily understandable.” Osborne v. Power, 319 Ark. 52, 890 S.W.2d 574 (1994). We once again explained that “massive commercial lighting displays generated by commercial transformers are not appropriate in quiet residential neighborhoods and violate express provisions of bills of assurances.” Id. at 53.

Three days later, on December 19, 1994, the appellees filed a motion for contempt, alleging that Jennings Osborne had violated our orders by illuminating displays on December 17,18, and 19, 1994. Upon considering this motion, we ordered Osborne to appear on December 27, 1994, to show cause why he should not be held in contempt of court for willfully disobeying the injunction. Osborne v. Power, 319 Ark. 177, 890 S.W.2d 575 (1994). Osborne appeared with counsel at the show-cause hearing and pleaded not guilty.

On January 9, 1995, we denied the Osbornes’ petition for rehearing on the merits of the original appeal, and appointed the Honorable George Cracraft as master to conduct an evidentiary hearing for the limited purpose of determining (1) whether Osborne reduced substantially the size and extravagance of the display at or about his home to a level which would not attract the large crowds that had been drawn to the neighborhood in the past; (2) whether Osborne continued massive Christmas light displays on and about his home that are calculated and do attract large numbers of visitors to the neighborhood; and (3) whether Osborne reduced the volume of any sound accompanying the display so that it is not audible from within the closest homes of neighbors. Osborne v. Power, 319 Ark. 239, 890 S.W.2d 577 (1995). In referring these questions to the master, we gave him the power to allow the parties to produce evidence “including, but not limited to, the comparative differences in the size, construction, and electrical energy used in the displays of 1993 and 1994, as well as the comparative foot and vehicular traffic involved.” Id. at 241. (Emphasis added.) We specifically reserved for our ultimate determination the question of whether Osborne, by lighting his display on December 17, 18, and 19, 1994, willfully disobeyed our prior December 5 and 16, 1994, orders.

Following a hearing on March 13 and 14, 1995, the master submitted his report, which included findings of fact that Osborne had substantially reduced the size and extravagance of his display; that the 1994 display was not calculated to and did not attract unusual numbers of visitors to the neighborhood; that there was little or no sound generated by the display; and that all of Osborne’s actions, if contemptuous, were taken on advice of counsel.

The appellees filed a notice of appeal of the master’s findings, to which the Osbornes responded by filing a motion to strike the notice of appeal. In a per curiam opinion delivered May 8, 1995, we stated that we would treat the appellees’ notice of appeal as an objection to the master’s report, see Ark. R. Civ. P. 53(e)(2), and Osborne’s motion to strike the notice of appeal as a motion to strike the objection. Osborne v. Power, 320 Ark. 466, 896 S.W.2d 905 (1995). We asked the parties to brief their respective positions, which have been filed and are currently before us for consideration on the issue of whether Osborne is guilty of criminal contempt. The United States Supreme Court denied Osborne’s petition for writ of certiorari on June 19, 1995.

Pursuant to Ark. R. Civ. P. 53(e)(2), this court must accept the master’s findings of fact unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made by the master. Casteel v. McCuen, 310 Ark. 568, 838 S.W.2d 364 (1992). See also Reporter’s Note to Rule 53. It is thus appropriate to examine the master’s findings on each of the referred questions.

I. Whether Osborne reduced substantially the size and extravagance of the display at or about his home to a level which would not attract the large crowds that had been drawn to the neighborhood in the past

Jennings Osborne erected Christmas light displays in 1993 and 1994 on three lots of approximately equal size which front on Cantrell Road. At the hearing conducted by the master, these lots were referred to as the “east lot,” the “main” or “residential lot,” and the “west lot.”

In finding that Osborne substantially reduced the size and extravagance of his 1994 Christmas display, the master relied on the testimony of Richard McCormac, a full-time employee of Osborne, who was in charge of hanging the lights. McCormac testified on his employer’s behalf that in 1993, 265,480 lights were included in the display on the west lot, as compared to 89,760 lights in 1994, representing a 69 percent reduction. On the east lot, 268,080 lights were included in the 1993 display, as compared to 84,280 in 1994, representing a reduction of 67 percent. On the main or residential lot, 2,642,000 lights were included in the 1993 display, while only 560 lights were illuminated on this lot in 1994. According to McCormac’s calculations, in 1994 the overall reduction of lights on all three lots as compared to 1993 was approximately 95 percent.

The master also made specific reference to the expert testimony of Steve Menhart, a professor of electronics at the University of Arkansas at Little Rock, who stated that in 1993, over 1600 KWH per hour of use in electrical energy was expended in the displays. In 1994, the consumption of energy was reduced to 124 KWH per hour. The energy consumption in 1994 was less than 7.7% of the energy required in previous years.

While we expressly did not limit the master to conducting inquiry into the comparative differences in the size, construction, and electrical energy used in the displays of 1993 and 1994, his finding on this question appears to be based in large measure on the relative differences in the number of lights used and the amount of electrical energy expended. Even so, we cannot say that this finding was clearly erroneous.

II. Whether Osborne continued .massive Christmas light displays on and about his home that are calculated to and do attract an unusually large number of visitors to the neighborhood

The master answered this question in two parts: (1) whether the number of visitors to the neighborhood was reduced in 1994; and (2) whether Osborne’s conduct was calculated to reduce the number of visitors to be drawn to the neighborhood. The master resolved each part of the question in Osborne’s favor. While recognizing that there was conflicting testimony on the issue of whether unusual numbers of visitors were attracted to the neighborhood in 1994, the master concluded that the video cassettes introduced and exhibited at the hearing indicated a reduction over 1993.

In our order appointing the master, we stated that the master could allow the parties to present evidence of “the comparative foot and vehicular traffic involved.” 319 Ark. at 241. Each of the appellees’ two witnesses testified at the hearing that traffic was backed up during the 1994 display. Particularly, Sgt. Tom Bernard of the Little Rock Police Department stated that cars were lined up for 3/4 mile to the east, and 1/2 mile to 1-430 to the west. This testimony, however, was contradicted by that of several defense witnesses, none of whom experienced or observed vehicular traffic problems, and all of whom observed few pedestrians during the 1994 display. When considering this testimony and viewing the videos presented, we do not conclude that the master’s finding as to the decrease in pedestrian and vehicular traffic in 1994 was clearly erroneous.

However, this is not the complete answer. Reductions over 1993 are not enough to resolve the question of whether the 1994 display attracted unusually large numbers of visitors to the neighborhood. The 1994 traffic on the three nights in question must be compared to “usual” Cantrell Road traffic, not to the mass congestion occasioned by the 1993 Osborne display. In short, the master used the wrong measuring stick with regard to the 1994 traffic.

The master recognized in his report that the more difficult question was whether Osborne’s 1994 display was calculated to attract unusually large numbers of visitors. In answering this part of the second question, the master in effect rephrased the question again into a comparison of the 1994 display and the 1993 display. That was not the issue. The question referred was whether the 1994 display was calculated to attract an unusually large number of visitors to the neighborhood. The master found that Osborne relied upon advice of his counsel with regard to the 1994 display and that by resolving any doubts in Osborne’s favor, “it would be a reasonable inference that his conduct was calculated to reduce the number of visitors to the neighborhood.” Again, reduction is not the issue. Calculation is. Osborne might well have calculated to reduce the number of visitors as compared to 1993. The question, however, is whether the 1994 display constituted a massive Christmas display calculated to attract an unusually large number of visitors to the neighborhood. This question was really not addressed by the master except in terms of a reduction in visitors from prior years.

We accept the findings of the master on question two as they relate to the reduction in traffic generated by the 1994 display as compared with previous years and as to Osborne’s inferred intention to reduce such traffic in comparison with past Christmas displays. Insofar as his findings on these questions exceed those issues, we hold that they are clearly erroneous.

III. Whether Osborne reduced the volume of any sound accompanying the display so that it would not be audible from within the closest homes of the neighbors

Again, the master answered this question in Osborne’s favor. The only evidence presented at the hearing was that there was little or no sound generated by the 1994 display. Even appellee Fiser testified that he did not recall any sound flowing from the 1994 display. Thus, we cannot say that the master’s finding on this issue was clearly erroneous.

Holding on contempt

The master recognized that the advice Osborne’s attorney gave his client in five areas appeared to have been designed to reduce the number of visitors as compared to 1993:

(1) The size and density of the display was reduced by 95 percent;
(2) The public and media were given no advance notice of when the display would be illuminated;
(3) Visitors were not permitted to enter the residence compound as they had in the past;
(4) Osborne and his wife did not make any appearance during the display; and
(5) The display was illuminated for only three nights rather than seven nights as in previous years.

As the master and Osborne correctly note, we have recognized that, although acting on advice of counsel is not a complete defense to contempt, it is a strong mitigating factor. Folsom v. State, 216 Ark. 31, 224 S.W.2d 44 (1949) However, as this court said in the Folsom case:

The fact that petitioner acted on advice of counsel is of course not a defense to the charge, but it does lessen the seriousness of the offense. The penalty in a case of this kind, however, serves a dual function. Not only is the contemnor to be punished for his conduct, but, as we said in Poindexter v. State, 109 Ark. 179, 159 S.W. 197, 46 L.R.A., N.S. 517, the dignity and authority of the court must be vindicated. Reliance upon the advice of counsel affects the first consideration, but it is nevertheless true that in the eyes of the general public the court’s order has been flouted.

Id. at 35.

We have no hesitation in concluding that our December 5 and 16 orders have been flouted. Osborne maintained massive Christmas lights displays in 1994 after we expressly forbade him to do so. Undisputed evidence at the hearing indicated that the displays on the east and west lots were indeed of massive stature. The 1994 display contained some 174,000 lights. The “west wall” of lights was 30 feet high. The “east wall” of lights was 55 feet high. The strings of lights on these walls were separated by one inch in 1993, and four inches in 1994. The overall dimensions or “framework” of the displays on the east and west lots were unchanged. The only difference was fewer lights were illuminated. From a review of all the evidence, we hold that the 1994 display was calculated to and did attract an unusually large number of visitors to the neighborhood. With regard to calculation, two factors stand out. The placing of 174,000 lights illuminated over three adjacent lots in itself is a call for attention. It remained in 1994 a massive display, albeit on a smaller scale than previous years. It constituted a massive commercial lighting display which we deemed not to be appropriate in a quiet residential neighborhood with restrictive covenants. Osborne v. Power, 319 Ark. 52, 53, 890 S.W.2d 574, 575 (1994). In the recent motion picture Field of Dreams, it was said, “If you build it, they will come.” Mr. Osborne built it, and they did come. He recognized that would occur as evidenced by the fact that he hired eight off-duty deputy sheriffs to control the traffic before the lights were turned on. This action demonstrates willful and intentional calculation to attract an unusually large number of visitors to the neighborhood. These eight off-duty officers were joined by sixteen Little Rock Police Department Officers to control the traffic. In light of the evidence, we conclude that Jennings Osborne is in contempt of court for willfully and intentionally illuminating massive displays on December 17, 18, and 19, 1994, in violation of the orders of this court.

Punishment

In our February 20, 1995, mandate, we stated that the contempt proceedings were to be considered criminal in nature with a possible range of punishment as set forth in Ark. Code Ann. § 16-10-108 (Repl. 1994). This statute provides in part that every court of record shall have the power to punish, for criminal contempt, the “willful disobedience of any process or order lawfully issued or made by it,” § 16-10-108(a)(3), and allows for punishment up to fifty dollars ($50.00) and a ten-day jail sentence. We also referred the parties to our decision in Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993). In Carle, we recognized that § 16-10-108(a)(3) was not a limitation on the power of the court to impose punishment for disobedience of process. We observed that the term “process” in the sense of the statutes is a comprehensive term that includes “all writs, rules, orders, executions, warrants, or mandates issued during the progress of an action.” Id., citing Arkansas Dep’t of Human Servs. v. Clark, 305 Ark. 561, 810 S.W.2d 331 (1991). (Emphasis added.) Thus, Osborne’s actions in violating our December 5 and 16 orders fall within the inherent power of the court to punish for contempt, and we are not bound by the limitations set forth in § 16-10-108(a)(3).

Accordingly, we assess fines of $500.00 for each violation of our December 5 and 16 orders on December 17, 18, and 19. We sentence Osborne to ten days in the county jail, with ten days suspended.

We further order Osborne to pay $3500.00 in costs for the fee of the master, and $3500.00 in attorney’s fees to the attorney for the appellees.

Case remanded to chancellor for enforcement of injunction.

Special Justice Ernie E. Wright joins in this opinion.

Newbern and Brown, J.J., not participating.


author: Robert H. Dudley, Justice.

text:
    William V. ALEXANDER, Jr. v. John FLAKE
    95-5
    910 S.W.2d 190
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995

      Randel Miller, for appellant.

      Wright, Lindsey & Jennings, by: Isaac A. Scott, Jr., David M. Powell, and Stephen R. Lancaster, for appellee.
   Robert H. Dudley, Justice.

Plaintiff William V. Alexander, Jr. filed this suit on June 11, 1993, alleging that defendant John Flake committed fraud, breach of fiduciary duty, and fraudulent concealment in the development of a real estate project in Boulder, Colorado. Defendant Flake later moved for summary judgment. The primary issue was whether the three-year statute of limitations had run by the time suit was filed. The trial court ruled that the suit was barred. Plaintiff appeals. We affirm the ruling of the trial court.

Summary judgment is a remedy that should only be granted when there are no genuine issues of material fact and when the case can be decided as a matter of law. Hampton v. Taylor, 318 Ark. 771, 776, 887 S.W.2d 535, 538 (1994). Our review is limited to examining the evidentiary items presented below and determining whether the trial court correctly ruled that those items left no material facts disputed. Id. at 777, 887 S.W.2d at 539. The facts must be viewed in the light most favorable to the party against whom the motion was filed, and all doubts and inferences are resolved against the moving party. Id.

A defense of limitation is an affirmative defense. When it is clear on the face of the complaint that the action is barred, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was tolled. First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842, cert. denied, 114 S.Ct. 290 (1992).

Although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law. Miles v. A. O. Smith Harvestore Prods., Inc., 992 F.2d 813, 817 (8th Cir. 1993). The statute of limitations for fraud and breach of fiduciary duty actions is three years. Ark. Code Ann. § 16-56-105 (1987); Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994); Smith v. Elder, 312 Ark. 384, 849 S.W.2d 513 (1993). Plaintiff Alexander filed this lawsuit on June 11, 1993. Consequently, for the complaint to have been timely filed, plaintiff must neither have known, nor been able to discover through reasonable diligence, the alleged fraud before June 11, 1990.

I. Statute of Limitations

The parties filed extensive affidavits, exhibits, depositions, and briefs in the trial court. A review of those documents reveals the following facts.

A. Undisputed Facts

Plaintiff Alexander is an attorney licensed to practice before the Bars of Arkansas, Tennessee, and the District of Columbia. After graduating from Vanderbilt Law School, he served as a law clerk for a federal district judge. He then practiced law for seven years. He was a member of Congress for twenty-four years. He has the capacity to understand legal documents.

In November 1984, plaintiff and five other men, including defendant Flake, signed a general partnership agreement to form Boulder Properties I. The purpose of the partnership was to develop a condominium complex in Boulder, Colorado. Under the terms of the partnership agreement, plaintiff Alexander had a profit or loss percentage of 16.667%. The partnership financed the project through Twin City Bank of North Little Rock by executing a promissory note in the amount of $5,150,000. The partners executed this “first” guaranty agreement under which the partners were jointly and severally liable for full payment of the note. Thus, in 1984, plaintiff Alexander, along with each of the others, was jointly and severally liable for the five-million dollar debt.

The real estate market in Boulder deteriorated, and the condominium units did not sell as the partners had anticipated. In April 1987, the partnership executed another guaranty agreement, the “continuing” guaranty agreement, under which each of the partners reduced his liability to 125% of his pro rata share of the partnership. Under the continuing guaranty, plaintiff and defendant each guaranteed 20.83% of the amount of the note. At the same time, the principal amount of the note was reduced to $3,500,000. Thus, under the “continuing” guaranty, the amount of plaintiff’s joint and several liability was reduced.

David McCreery, the managing general partner, sent memoranda to each partner, before and after the execution of the continuing guaranty, outlining the financial problems of the project, initially expressing belief that the project ultimately would be successful; informing the partners of their share of marketing expenses due; informing the partners that they must seek financing for their personal amount of the debt; informing the partners that it would be necessary for them to make monthly payments on the current interest due to the Twin City Bank; discussing the continuing guaranty; discussing the shortfall of the property; and discussing the possibility of the partners providing individual letters of credit for their pro rata share of the shortfall.

As early as January 1987, the memoranda expressed concern over the success of the project. In March 1987, one of McCreery’s memoranda stated, “I can’t tell you how I regret that this development did not turn out the way we all had intended for it to, but markets change and we got involved in a market that deteriorated about the time that we started construction.” In September 1987, McCreery’s memorandum to the partners stated that he calculated the shortfall on the loan to be $600,000, but that Twin City Bank was requesting a letter of credit in the amount of $1,150,000. The memorandum stated that each partner’s decision to provide a letter of credit or other collateral for his pro rata share was his personal decision. This memorandum also referred to the fact that the loan was on the bank examiners’ list of criticized loans.

Plaintiff Alexander wrote a letter to Twin City Bank in November 1987, in which he proposed collateral in Mississippi County for his 16.6% interest in the Boulder property. This was more than four years before suit was commenced. Plaintiff also made numerous payments to the partnership for monthly interest assessments in accordance with the memoranda. Plaintiff obtained a loan of $259,250 from Twin City Bank in May 1988, to cover his part of costs associated with Boulder Properties.

In 1990, the development sold for a loss. Plaintiff failed to satisfy his obligations to Twin City Bank, and the bank filed a foreclosure suit against plaintiff in Mississippi County, the venue of the collateral.

B. Plaintiff’s Allegations of Fact

Plaintiff’s affidavits and other evidentiary matters, which we must accept as true in reviewing the grant of summary judgment, reflect the following. In the early 1980’s, defendant Flake and Congressman Alexander became friends through their mutual interest in politics. Defendant would call plaintiff frequently to discuss state political issues as well as matters pending in Congress. Plaintiff believed defendant was a concerned citizen with a genuine interest in public policy.

In their conversations, plaintiff told defendant that he had very limited funds for investment and had little time to spend on looking after his investments. Defendant stated that plaintiff could join in some of his investments, and together they made several investments. Defendant brought plaintiff into five different business ventures and told him of the transactions only after the fact. The first of these investments included use of a non-recourse promissory note. Defendant knew that plaintiff did not know the details of the ventures and did not have the time or inclination to learn about them. Defendant always reported to plaintiff that the various ventures were going well.

In 1984, defendant entered plaintiff in the Boulder I partnership. Defendant knew that plaintiff would not review the various documents before signing them and that it was defendant’s responsibility to review the documents. Once defendant sent the documents to plaintiff, plaintiff considered the documents to have defendant’s stamp of approval, and he routinely signed and returned them to defendant without reading them. At times, defendant sent only the signature page of documents. In numerous phone calls extending through 1991, defendant continued to discuss the Boulder project in glowing terms.

In 1987, defendant told plaintiff that he would send him a document for his signature. Defendant stated that the document was merely a formality that the bank needed. The document was the continuing guaranty which reduced both plaintiff and defendant’s liability to 20.83% of the loan. Plaintiff contends that had he realized that the continuing guaranty reduced defendant Flake’s liability he would not have signed it.

Plaintiff learned from the memoranda that the project needed more money, but he still believed, because of the representations of defendant, that he had no exposure or liability to the bank. Defendant later requested that plaintiff sign a note, and he did so only after defendant assured him that the note was just something needed for the bank’s records. At that point, plaintiff continued to believe the project was profitable and that he had no personal liability.

In support of his contention that a fiduciary relationship existed, plaintiff averred that, in 1984, following the closing of a transaction on property unrelated to the partnership, defendant purchased a certificate of deposit as plaintiff’s trustee. When the certificate of deposit matured, the funds were sent to plaintiff. Further, in 1990, defendant contacted a certified public accountant to discuss the manner of handling plaintiff’s finances.

In February 1990, plaintiff became aware of the gravity of the investment in the Boulder I partnership. In the fall of 1991, plaintiff discovered that defendant had interests adverse to his, and that defendant took steps to reduce his own exposure at the time he caused plaintiff to sign the continuing guaranty. In February 1993, after reviewing documents with his attorney, plaintiff discovered that defendant had breached his duty and obligation to him.

C. Facts Applied to Law

Plaintiff contends that the trial court erred in ruling that this action is barred by the statute of limitations because an issue of material fact exists about whether defendant concealed his fraud and breach of fiduciary duty.

Plaintiff signed the general partnership agreement in November 1984, and signed the continuing guaranty, the document which is the basis for this suit, on April 27, 1987. It is undisputed that plaintiff received numerous memoranda reporting the financial condition of the partnership both before and after signing the continuing guaranty. Plaintiff made payments to the partnership and obtained financing to cover costs associated with the partnership throughout 1987, 1988, and 1989. Plaintiff admits that he signed the partnership agreement and continuing guaranty agreement, but averred that he did not read them. He also averred that he did not read the numerous memoranda which would have informed him of the financial condition of the partnership. Plaintiff’s failure to read the partnership agreement, the continuing guaranty, and the memoranda show a lack of reasonable diligence.

In First Pyramid Life Insurance Co. v. Stoltz, we wrote:

Even if there was evidence of fraud on the part of First Pyramid, and there is none, the statute of limitations would still have run on this claim. “Fraud does suspend the running of the statute of limitations, and the suspension remained in effect until the party having the cause of the action discovers the fraud or should have discovered it by the exercise of reasonable diligence.”

311 Ark. at 318, 843 S.W.2d at 845 (emphasis in the original) (citations omitted). The opinion quotes the “classic language on this point,” as follows:

No mere ignorance on the part of the plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar. There must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause of action concealed or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it.

Id. at 319, 843 S.W.2d at 845 (citations omitted).

In Wilson v. General Electric Capital Auto Lease, Inc., 311 Ark. 84, 841 S.W.2d 619 (1992), the plaintiffs leased a car for five years and alleged that they were told they could return the car in three years and owe nothing further on the lease agreement. The plaintiffs also alleged they were told they would not have to purchase excess mileage coverage since they would be returning the car early. After plaintiffs used the car for three years and the car reached the mileage limitation, they attempted to return it. The defendants would not accept return of the car. The plaintiffs learned that the contract, which they had not previously read, contained a clause that provided a formula for determining an early termination charge. The plaintiffs filed a complaint alleging intentional misrepresentation and usury three years and four months after signing the contract. The trial court granted summary judgment for the defendant based, in part, on the ruling that the claim was time-barred. The plaintiffs asserted that the statute of limitations was tolled by fraudulent concealment of the misrepresentation at the time they signed the lease agreement. We affirmed the ruling of the trial court, stating that the statute of limitations was suspended only until the fraud, if any, was or should have been discovered with the exercise of reasonable diligence. In so holding, we wrote:

In sum, the Wilsons did not fulfill their duty to exercise reasonable diligence in examining the contract they executed to uncover what they alleged was a fraudulent misrepresentation by the leasing manager, so they cannot now complain that the statute of limitations should have been tolled. To the contrary, the evidence shows that they knew or should have known of the contract’s actual provisions, so there was no genuine issue of material fact precluding summary judgment.

Id. at 89, 841 S.W.2d at 621.

Similarly, in the case at bar, appellant did not fulfill his duty to exercise reasonable diligence in examining the agreements or in reading the memoranda provided to him. Consequently, he cannot avail himself of the benefit of tolling based on fraudulent concealment.

Plaintiff relies on the case of Hickson v. Saig, 309 Ark. 231, 828 S.W.2d 840 (1992), in which the plaintiff signed a lease for retail space after being assured by the defendant leasing agent that a Wal-Mart store would remain in the shopping center. Shortly after the lease was signed, an article appeared in the local newspaper stating that Wal-Mart was relocating elsewhere. The plaintiff was not aware of the article. The plaintiff later heard a rumor that Wal-Mart was relocating and asked the defendant listing agent if it were true. The agent told her that Wal-Mart would remain in the center. At a meeting of the shopping center merchants, the defendant listing agent told the merchants that WalMart was remaining in the center. A month later Wal-Mart relocated. Plaintiff filed suit. The trial court granted the defendants’ motion for summary judgment, finding that the statute of limitations was not tolled by fraudulent concealment because, following the publication of the newspaper article, the plaintiff knew or with reasonable diligence could have discovered that WalMart was relocating. We reversed. The proof showed that plaintiff relied on the statements by the listing agent and did not see the article. Therefore, an issue of material fact existed as to whether the article should have put the plaintiff on notice and required her to investigate to determine whether Wal-Mart was moving.

That case is clearly distinguished from the case at bar because, in that case, the defendant did not provide plaintiff with documents that contained the allegedly concealed information. The plaintiff might have read the newspaper article, and it might have put plaintiff on notice; that was a material issue of fact. Here, plaintiff signed the partnership agreement that made him a general partner and made him subject to liability. He signed the first guaranty and the continuing guaranty. He is bound to know the content of the documents he signed. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991); see also Stone v. Prescott Special Sch. Dist., 119 Ark. 553 (1915). Additionally, the memoranda outlining the condition of the project, advising the partners that they needed to obtain financing and informing them of their share of expenses due, were sent directly to plaintiff. The evidence conclusively proved that, even if plaintiff did not know of the fraud prior to June 11, 1990, he could have discovered it by exercising reasonable diligence.

The trial court additionally ruled that summary judgment was granted because plaintiff failed to show one of the elements of fraud and failed to show a breach of fiduciary duty. Plaintiff assigns those rulings as error, but we do not reach the assignments since we affirm the trial court’s ruling on the basis of the running of the statute of limitations.

II. Summary Judgment Prior to Completion of Discovery

In his final argument plaintiff contends that the trial court erred in granting summary judgment before he was able to submit some records from the Federal Deposit Insurance Corporation. At the hearing on the motion for summary judgment, plaintiff asked the trial court to refrain from ruling on the motion until he obtained a protective order and then could submit some FDIC records and an affidavit by an expert witness. He stated that the affidavit was prepared and he could file it with the court if the court entered the protective order on that day. The trial court entered the protective order on the day of the hearing as requested. The summary judgment was granted upon “consideration of the pleadings, affidavits, and other materials both in support of and in opposition to the Motion for Summary Judgment (including without limitation certain materials submitted by the plaintiff after the hearing).” The FDIC records were submitted after the hearing; therefore, plaintiff’s argument most likely is lacking for a factual basis. However, even if the trial court should not have considered the FDIC records, we would not reverse.

Whether to grant a continuance to allow for further discovery is a matter within the discretion of the trial court. ARCP Rule 56(f); Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994). In order for this court to reverse the trial court’s denial of the continuance, the appellant must show that the trial court abused its discretion and that the additional discovery would have changed the outcome of the case. Id. Plaintiff has not demonstrated that the trial court abused its discretion in granting the summary judgment prior to the completion of all discovery or that the additional discovery would have changed the outcome of the case.

Plaintiff relies on First National Bank v. Newport Hospital and Clinic, Inc., 281 Ark. 332, 663 S.W.2d 742 (1984). That case was a medical malpractice case, and the plaintiff had the burden of proving, by expert testimony, that her injuries were caused by the failure of the defendant to exercise the degree of skill and learning possessed by other physicians engaged in the same kind of practice in similar localities. The trial court granted the defendants’ motion for summary judgment based on the lack of expert testimony to support the plaintiff’s claims prior to the defendant producing medical records which the plaintiff had requested in discovery. We reversed and stated that there was no suggestion of lack of diligence on the part of the plaintiff or any reason to challenge the relevancy of the discovery sought. We concluded:

Where, as in this case, the decision of a question of law by the Court depends upon an inquiry into the surrounding facts and circumstances, the Court should refuse to grant a motion for a summary judgment until the facts and circumstances have been sufficiently developed to enable the Court to be reasonably certain that it is making a correct determination of the question of law.

Id. at 336, 663 S.W.2d at 744 (quoting Palmer v. Chamberlin, 191 F.2d 532 (5th Cir. 1951)). Unlike First National Bank v. Newport Hospital and Clinic, the facts in the case at bar were sufficiently developed for the trial court to determine whether summary judgment was appropriate.

Plaintiff asserts that the FDIC records, the affidavits, and the depositions were relevant to show that defendant had a motive to shift liability from himself to plaintiff in the continuing guaranty. While such evidence may have supported plaintiff’s theory of the case had it gone to trial, it does not change the fact that plaintiff did not show damage or justifiable reliance, two elements necessary to a cause of action based on fraud. Motive is not an element of fraud. See Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994). Nor does it establish a fiduciary relationship or breach of that relationship. Thus, plaintiff has not demonstrated that postponing the ruling for further discovery would have enabled him to rebut the motion for summary judgment. In addition, plaintiff has not shown that he was diligent in obtaining the additional discovery. See Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994).

Affirmed.