author: Lavenski R. Smith, Justice.

text:
    Lise KRAEMER v. The Honorable John PATTERSON
    00-816
    29 S.W.3d 684
    Supreme Court of Arkansas
    Opinion delivered October 26, 2000

      David S. Mitchell, for petitioners.

      Friday, Eldredge & Clark, by; Phil Malcom and Clifford W. Plunkett, for respondent.
   Lavenski R. Smith, Justice.

Petitioners Lise and Jeremie Kraemer seek a Writ of Certiorari to prevent enforcement of a Pope County Circuit Court order allowing the defendants in this medical malpractice case to call as an expert witness one of the plaintiff’s treating physicians. The plaintiff filed this petition arguing that the circuit court improperly issued the order in violation of Rule 503 of the Arkansas Rules of Evidence. We agree and grant the writ.

Facts

In 1995, Lise received prenatal and obstetrical care from physician Dr. Jody Callaway. Lise proceeded to term and underwent a cesarean section due to the baby’s breech presentation. The Kraemer’s child, a daughter, was born with the birth defect known as spina bifida. Just over a year after the child’s birth, Lise sought and obtained sterilization services from another local gynecologist, Dr. Joe Cloud. Subsequently, the Kraemers, individually and as natural parents and next friends of Wensday Kraemer, brought an action against Dr. Callaway alleging negligence in the provision of prenatal services. Specifically, the Kraemer’s allege that Dr. Callaway failed to diagnose and inform them of Wensday’s genetic defect of spina bifida and for violating the standard of care of a obstetrician and gynecologist in Russellville, Arkansas.

During the discovery process, the defense deposed Dr. Cloud regarding his subsequent treatment of Lise Kraemer. Thereafter, the defense filed a motion on August 16, 1999, to retain Dr. Cloud as a defense expert. The defense argued that it was necessary to obtain Dr. Cloud as an expert because he is one of only two other available obstetricians/gynecologists in Russellville who would qualify as an expert under Arkansas’s “locality” rule. The defense argued that Dr. Cloud’s treatment of Lise was unrelated to this proceeding. Furthermore, because Dr. Cloud’s deposition already revealed privileged information, Rule 503 prohibiting ex parte communications between defense counsel and a treating physician no longer applies because there is no additional privileged information to be protected.

In response, the Kraemers argued that there are many physicians who are qualified to testify as defense experts in this case, and that prior to the defense’s motion, defense counsel contacted Dr. Cloud without the Kraemers’ consent. On appeal, the Kraemers argue that the respondent’s sole authority is based on out-of-state precedent based upon laws and rules dissimilar to Arkansas’s. Furthermore, the Kraemers argue that Rule 503 unequivocally prohibits ex parte communications with a patient/plain tiff’s treating physician without the patient’s consent.

The circuit court issued its order on June 23, 2000, finding that the defense should be allowed to retain Dr. Cloud as a defense expert, but that certain restrictions would apply to his testimony, including the following:

The defense may not discuss Lise Kraemer’s care and treatment with Dr. Cloud;
1. If the plaintiffs call Dr. Cloud as a witness to testify at trial, the defense will not cross-examine Dr. Cloud in relation to his care and treatment of Lise Kraemer except based on information obtained through formal discovery; and
2. If the plaintiffs choose not to call Dr. Cloud as a witness, the defense will agree not to discuss the fact that Dr. Cloud performed any procedure on Lise Kraemer.

In addition, the circuit court’s order also specifically permitted the defense to meet with Dr. Cloud without the Kraemers’s attorney being present. Before any such meeting took place, the Kraemers filed the instant Petition for Writ of Certiorari on July 11, 2000.

Standard of Review

A writ of certiorari is extraordinary relief, and we will grant it only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Cooper Communities, Inc. v. Benton County Circuit Court, 336 Ark. 136, 984 S.W.2d 429 (1999). Unlike a writ of prohibition, the writ of certiorari can address actions already taken by the lower court. Oliver v. Arkansas Professional Bail Bonds, 340 Ark. 681, 13 S.W.3d 156 (2000). In determining its application we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of facts, or to reverse a trial court’s discretionary authority. Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992). A writ of certiorari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998). These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Id.

Rule 503

In their petition, the Kraemers argue that Ark. R. Evid. 503(d)(3)(B) prohibits the defense from “any informal, ex parte contact or communication with the patient’s physician.” They contend that by granting the defense’s motion to make Dr. Cloud a defense witness, the trial court exceeded its authority in violation of Rule 503. The Kraemers argue that the rule specifically prohibits the court to allow the defense to communicate with Dr. Cloud ex parte without the Kraemers’ consent. The Kraemers specifically note that the Arkansas courts have not addressed this issue, but that the federal district courts in Arkansas and the Eighth Circuit Court of Appeals have interpreted Arkansas’s Rule 503 and Ark. R. Civ. P. 35 to prohibit these particular ex parte communications. The Kraemers also aver that the rules contain no language to support the defense’s theory that once a physician is deposed, any party may communicate ex parte with the doctor. Finally, the Kraemers argue that if the defense’s reading of the rule is adopted, the rule can always be circumvented merely by taking the deposition of any of the plaintiff’s doctors under the guise of using the information in defense of the claim, and then the defense can contact that physician ex parte thereafter.

The defense responds that the Writ of Certiorari is inappropriate because the plaintiffs could have this issue addressed on appeal should they not prevail in the suit. The defense argues that because Dr. Cloud had been deposed, no communications from Lise Kraemer remain “confidential.” Hence, the defense should not be prevented from speaking with the doctor independently. Finally, the defense notes that treating physicians may provide expert testimony regardless of whether it is helpful to the patient, and Rule 503 should not be used to prevent this testimony.

At issue in this case is whether the defense may question one of Lise Kraemer’s treating physicians without the plaintiff’s attorney being present at the interview. The main focus of this inquiry is Rule 503 of the Arkansas Rules of Evidence, which details the physician-patient privilege and connected rules. The “General Rule of Privilege” states:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.

Ark. R. Evid. 503(b). The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient, and a patient has a privilege to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his mental or emotional condition. Ark. R. Evid. 503(c); Randleman v. State, 310 Ark. 411, 837 S.W.2d 449 (1992) (citing Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852, 101 S.Ct. 144, 66 L.Ed. 2d 64 (1980), 459 U.S. 1020, 103 S.Ct. 386, 74 L.Ed. 2d 517 (1982). But Rule 503(b) does not grant a privilege to “any information,” only “communications” between the patient and doctor, and confidential ones at that. Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982). A communication is confidential if it is “not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient’s family.” Ark. R. Evid. 503(a)(4). In addition, a claim of privilege is not defeated by a disclosure which was compelled erroneously or made without an opportunity to claim the privilege. Ark. R. Evid. 511.

Section (d) of Rule 503 states the Exceptions to the general privilege rule. Subsections (3) (A) and (B) are specifically pertinent and state:

(3) Condition and element of claim or defense.
A. There is no privilege under this rule as to medical records or communications relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he or she relies upon the condition as an element of his or her claim or defense, or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his or her claim or defense.
B. Any informal, ex parte contact or communication with the patient’s physician or psychotherapist is prohibited, unless the patient expressly consents. The patient shall not be required, by order of court or otherwise, to authorize any communication with the physician or psychotherapist other than (i) the furnishing of medical records, and (ii) communications in the context of formal discovery procedures. (Emphasis added.)

By Per Curiam in 1990, this court enacted the prior version of this provision. See In Re Changes to Rules of Civil Procedure, 304 Ark. 742, 799 S.W.2d 811 (1990). The prior language of this section of Rule 503 stated:

(3) Condition an element of claim or defense. There is no privilege under this rule as to medical records or communications relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense, or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his claim or defense; provided, however, a patient shall not be required, by order of court or otherwise, to authorize any communication with any physician or psychotherapist other than (A) the furnishing of medical records, (B) communications in the context of formal discovery procedures, or (C) informal conference in the presence of the party’s attorney.

Id., 304 Ark. at 744.

After the promulgation of this version of the rule, two federal district courts in Arkansas and the Eighth Circuit Court of Appeals had an opportunity to review and discuss this issue in two federal cases originating in Arkansas. First, Judge Henry Woods in the Eastern District of Arkansas, Western Division, addressed the newly enacted provision in Harlan v. Lewis, 141 F.R.D. 107 (1992). Harlan involved a medical malpractice claim in which the plaintiffs alleged permanent damages to an infant allegedly due to the defendant physician’s failure to check the results of a mandatory blood screen. In the case, the plaintiffs sought to prohibit the defense attorneys from contacting the child’s non-party treating physicians and speaking to them ex parte (out of the presence of the plaintiff’s attorneys) and informally (without the patient’s authorization or consent). Judge Woods first discussed the fact that privileges arise statutorily, requiring the federal court to look to state law for authority.

In Harlan, the defense contended, much as does the defense in the instant matter, that by filing a medical malpractice suit, the plaintiffs waived any right to control release of confidential information confided to, or discovered by, any treating physician. Judge Woods found, however, that “even though the privilege is partially waived through the filing of a lawsuit, Arkansas citizens retain some control over the manner in which information concerning their medical records and treatment is released.” Harlan, 141 F.R.D. at 111. Judge Woods determined that while all relevant medical information is discoverable, the information can only be discovered by utilizing formal discovery tools consistent with Rule 503, and that the plaintiff maintains control over how that information is revealed. Ultimately, Judge Woods determined that the defense could not conduct ex parte interviews with a plaintiff’s non-party treating physicians without the consent of the plaintiff or the presence of the plaintiff’s attorney.

Interestingly, Judge Woods noted in the opinion that the defense in Harlan had designated treating physicians as “defense experts.” While Judge Woods did not forbid such use of treating physicians, he did state:

The defendant will not be permitted to circumvent the clear intent of the Arkansas rules relating to privilege ■ by this disingenuous design. The Court has seriously considered barring these treating physician/defense experts from testifying at all in light of defense counsel’s blatant refusal to acknowledge, much less comply with, Rules 503 and 35 and his improper attempts to influence testimony. (Citations omitted.) However, such a sanction would effectively eviscerate Dr. Lewis’s ability to present a defense. Therefore, the defendant will be permitted to elicit expert opinions from treating physicians, but defense counsel may not meet with treating physician “experts” outside the presence of the plaintiff’s attorney, unless the plaintiffs so authorize. ... Furthermore, if the defendant intends to use treating physicians as expert witnesses, defense counsel must turn over to plaintiffs’ counsel all notes, records, transcripts and recordings of ex parte interviews with those treating physicians which have occurred since April 1, 1991, the effective date of the amendment to Rule 503.

Harlan, 141 F.R.D. at 114.

Following Harlan, Judge Franklin Waters in the United States District Court for the Western District of Arkansas, Harrison Division, decided King v. Ahrens, 798 F.Supp. 1371 (1992), to the contrary. In King, Judge Waters addressed Judge Woods’s holding, and determined that the new provision under Rule 503 does not prevent the defense from conducting ex parte interviews with treating physicians. Judge Waters premised his decision on his view that the rule, if read as the plaintiffs suggested, would prohibit even the defendant physician from speaking to his own attorneys.

The following year, the Eighth Circuit Court of Appeals resolved the debate in Harlan v. Lewis, 982 F.2d 1255 (8th Cir. 1993) cert. denied, Hall v. Harlan, 510 U.S. 828, 114 S.Ct. 94, 126 L.Ed.2d 61 (1993), the appeal from the above-cited Harlan district court decision. In the Harlan appeal, the Eighth Circuit addressed the underlying decisions by Judge Woods and Waters, and adopted Judge Woods’s approach in the underlying Harlan decision. In doing so, the Eighth Circuit determined that “the issue before us concerns not the scope of the privilege but the manner of disclosure required under the Arkansas rules.” Harlan, 982 F.2d at 1263. The Eighth Circuit focused on the specific language of the rule and the Reporter’s Note accompanying the amendment to the rule, and stated:

Both Rule 503(d)(3) and Arkansas Rule of Civil Procedure 35 provide that a party may not be required by order of court or otherwise to authorize “any communication” with his physician other than the furnishing of medical records and communications in the context of formal discovery procedures. “Any communication” is an inclusive term. Where the rule specifically prescribes the manner of disclosure to which a patient must consent, we cannot read the plain language of the rules to permit disclosure in ex parte interviews. The strict requirements of consent are antithetical to the authorization of non-consensual ex parte inter-
views. Furthermore, when the Arkansas Supreme Court adopted the 1991 version of these rules, it also adopted an amendment to the Reporter’s Note accompanying Arkansas Rule of Civil Procedure 35 which states:
New subdivision (c) of this rule sets out the circumstances under which a party must authorize release of his medical records to another party. It also makes plain that a party may not be required to allow an adversary to communicate with the party’s physician or psychotherapist outside the formal discovery process. This safeguard is deemed necessary to protect the confidential relationship between a party and his physician or psychotherapist.

Id.

The Eighth Circuit also addressed two additional issues of concern in this case. First, the Eighth Circuit noted that “Rule 503(d)(3) removes the privilege only from communications or records concerning a condition that is an element of a claim or defense; information not relating to such a condition is still privileged.” The court noted that if the rules did not strictly prescribe the manner in which information could be released, doctors would be left to their own devices to determine what information could be revealed. As the privilege is one only the patient can claim, and the rules only require disclosure if the condition is an element of a claim or defense, the court rejected the contention that the filing of a lawsuit operates as an absolute waiver. Second, the Eighth Circuit held that Rule 503(d)(3) would not interfere with a defendant physician’s relationship with his defense counsel or his ability to present a defense in his case. The court stated:

When a doctor is a party to the action, four different considerations apply: (1) the party doctor has a right to be represented by counsel; (2) this right is meaningless without the ability to converse freely with counsel about the representation; (3) when the issue is malpractice, the party physician must be able to consult with counsel about the treatment at issue and this entails disclosure of the details of that treatment; and (4) the law of privilege applying to medical witnesses should not render the party physician powerless to prepare a defense. Arkansas case law reenforces our belief that the Rule 503(d)(3) language is intended to apply only to treating physicians, other than the defendant physician, who may be called to testify in the case. See, e.g., Duncan v. Cole, 786 S.W.2d at 587; Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989).

Harlan, 982 F.2d at 1264-1265.

While the federal cases cited are not binding on us, we find their reasoning sound and persuasive. In fact, this court specifically cited to the Eighth Circuit’s opinion in Harlan as its reason to amend Rule 503(d)(3) in our 1998 Per Curiam. The rule’s language in (d)(3)(B) is very specific. As noted above, it states that “any informal, ex parte contact or communication with the patient’s physician or psychotherapist is prohibited, unless the patient expressly consents.” Furthermore, the patient shall not be “required, by order of the court or otherwise, to authorize any communication....” In other words, in compliance with the privilege, the rule allows the control of the information disseminated to remain with the patient.

We hold, therefore, that Rule 503(d)(B) by its plain language forbids ex parte communication with the patient’s physician in the absence of the patient’s consent. Further, because the Rule also denies the court the authority to compel the patient’s consent, we also hold that the trial court erred in authorizing ex parte communication between Dr. Cloud and defense counsel without the plaintiff’s consent. A writ of certiorari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Hanley, supra. Here it is apparent from the pleadings and the court’s order that the court’s order was inconsistent with the express language of the rule. Moreover, we are persuaded that an appeal of an adverse decision would not be an adequate remedy under the circumstances.

Writ of Certiorari granted.

       This section of Rule 503 has not been interpreted by the Arkansas courts until now. As noted in Harlan, this court has touched on the general applicability of Rule 503 in Duncan v. Cole, 302 Ark. 60, 786 S.W.2d 587 (1990) and Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989). While the Goodwin court allowed a plaintiff’s former treating physician to give expert opinion for a defendant doctor in a medical malpractice case so long as the physician-patient privilege was not breached, these cases were decided before section (d) was added to Rule 503 in the 1990 Per Curiam, which went into effect in 1991. And, in fact, the Goodwin court specifically noted that the issue of ex parte communications with the treating physician was not before that court. See Goodwin, 300 Ark. at 484.

       As the district court notes, generally federal courts will not follow state rules of evidence; however, questions involving privilege are governed by state law.

       We note that our holding does not forbid the use of Dr. Cloud as a defense expert.


source: Caselaw Access Project

license: Public Domain

text:
    Robert A. NORMAN v. Josephine A. NORMAN
    99-1519
    30 S.W.3d 83
    Supreme Court of Arkansas
    Opinion delivered October 26, 2000

      T. B. Patterson, Jr., P.A., for appellant.

      James A. McLarty, III, for appellee.
   Lavenski R. Smith, Justice.

Robert A. Norman (“Robert”) appeals an order of the Garland County Chancery Court denying his motion seeking recovery of fees and expenses from attorney C. Burt Newell. Robert alleges the fees and expenses are litigation costs he incurred opposing Newell’s representation of his ex-wife Josephine. In Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998) (Norman I), this court held Newell was disqualified to represent Josephine due to a conflict of interest. Following remand, Robert filed a “motion for judgment” directly against Newell. The trial court found that there was no action before it against Newell’s law firm due to lack of service of process, that the relief sought was actually in the way of damages rather than attorney’s fees, that the pleadings were insufficient, and that the plaintiff lacked standing. This case comes to us as a subsequent appeal pursuant to Ark. Sup. Ct. R. l-2(a)(7). We dismiss the appeal.

Facts

The facts underlying the divorce and disqualification decision are stated in Norman I and are not germane to the issue presented in this appeal. Upon this court’s remand for a new trial, Robert filed a “motion for judgment for incurred expenses” on September 1, 1998. Robert directed the motion against attorney Newell, and sought a judgment directly against Newell and his firm for fees and expenses incurred in challenging Newell’s representation of Josephine.

On September 17, 1998, Josephine filed a voluntary dismissal under Ark. R. Civ. P. 41. Thereafter on October 1, 1998, Robert directed discovery to Newell, which was followed by a motion to compel compliance with the discovery requests on November 5, 1998. A hearing was held on the motion to compel on November 23, 1998. The court ordered Newell to respond to the discovery individually and ordered the parties to brief the court on whether there was an action between Robert and Newell to allow a hearing on the motion. On December 8, 1998, Robert filed a renewed motion against Newell but did not change his allegations.

The trial court issued its ruling on July 12, 1999. The court found that an action was still pending before it because Josephine’s voluntary dismissal motion had not been granted. However, as to Newell and his firm, the court found there was no cause of action between the firm and Robert. The court further noted that there was no showing that the firm had ever been named or served. The court further found that the motion sought damages, not fees, and that there was no standing for Robert to seek to have the fees charged by the firm to Josephine “disgorged.” Robert appeals the court’s order denying him fees and costs.

Standard of Review

We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Simmons First Bank v. Bob Callahan Servs., Inc., 340 Ark. 692, 13 S.W.3d 570 (2000); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. Similarly, we review issues of statutory construction de novo, as it is for this court to decide what a statute means. Simmons First Bank, 340 Ark. 692, 13 S.W.3d 570; Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id; Stephens v. Arkansas School For The Blind, 341 Ark. 939, 20 S.W.3d 397 (2000).

Final Order

We will not address the merits of Robert’s appeal. He has not appealed from a final order as required by our rules. It is apparent from the record that the trial court has not yet acted upon the voluntary dismissal motion filed by Josephine after remand. To consider the instant appeal would violate this court’s longstanding policy against piecemeal appeals. McGann v. Pine Bluff Police Dep’t, 334 Ark. 352, 974 S.W.2d 462 (1998); Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994). Appellant has failed to comply with Ark. R. Civ. P. 54(b), and the appeal must be dismissed. The order denying costs, expenses, and other relief does not qualify for appeal under Ark. R. Civ. P. 54(b). Although a motion for dismissal under Ark. R. Civ. P. 41 has been filed, it has not been entered. Therefore, the action between Robert and Josephine is still pending. Blaylock v. Shearson Lehman Brothers, Inc., 330 Ark. 620, 954 S.W.2d 939 (1997). Thus, the ruling on the motion for fees and expenses does not conclude the case in the trial court, and the order is not a final order subject to appeal.

An order is not final when it adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. Stockton v. Sentry Ins., 332 Ark. 417, 965 S.W.2d 762 (1998). See also, Ark. R. Civ. P. 54(b). Even though an issue on which a court renders a decision might be an important one, an appeal will be premature if the decision does not, from a practical standpoint, conclude the merits of the case. Doe v. Union Pac. R.R., 323 Ark. 237, 914 S.W.2d 312 (1996); Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000).

Rule 54(b) does provide a way to obtain a final order on fewer than all the claims or all the parties, but Robert did not comply with its provisions. Where one wishes such a final order, Rule 54(b) requires the party to move the trial court for an express determination, supported by specific factual findings, that there was no just reason for delay, and for express direction for entry of judgment on the matter to be appealed. Warren v. Kelso, 339 Ark. 70, 3 S.W.3d 302 (1999). This Robert did not do.

Additionally, an order for costs is not a judgment as contemplated by Rule 54(b). That rule reads in pertinent part:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment.

(Emphasis added.)

A defendant’s motion for costs is not a claim for relief presented in an action as Rule 54(b) requires and, standing alone, is not subject to appeal where the underlying action is still pending. Warren v. Kelso, 339 Ark. 70, 3 S.W.3d 302 (1999).

Appeal dismissed without prejudice.


author: Tom Glaze, Justice.

text:
    Jim Edward BLACKWOOD v. Casey Lynn FLOYD
    00-197
    29 S.W.3d 694
    Supreme Court of Arkansas
    Opinion delivered November 2, 2000

      Gregg E. Parrish, for appellant.

      Pike & Bliss, P.A., by: George E. Pike, Jr., and Deborah Pike Bliss, for appellee.
   Tom Glaze, Justice.

This appeal evolves from a divorce decree awarded to appellee, Casey Floyd, against appellant, Jim Blackwood, on July 23, 1998. Blackwood’s son from a previous marriage, Jim-Jim, had lived with Floyd and Blackwood during their three-and-a-half-year marriage. The parties’ divorce decree, entered September 8, 1998, made no mention of Jim-Jim, and stated that there were no children born of the marriage. Apparently, because Floyd had established a maternal relationship with Jim-Jim, Floyd and Blackwood had entered into a private agreement, allowing Floyd to visit the child upon request. When differences arose between the parties after the divorce, Blackwood declined to allow Jim-Jim to visit Floyd. Thereafter, Floyd filed a petition in chancery court on December 22, 1998, requesting that, because Blackwood refused Floyd’s requests to visit Jim-Jim, such a change in material circumstances warranted that Floyd be granted visitation with her former stepson.

Blackwood moved to dismiss Floyd’s motion, contending that ninety days had passed since the parties’ divorce decree was entered and, under Rule 60(b) of the Arkansas Rules of Civil Procedure, Floyd was barred from seeking visitation rights or any other modification of the divorce decree. Additionally, Blackwood argued that, because Floyd had not sought visitation during the parties’ divorce, she was also precluded by res judicata from seeking such relief. Floyd’s response to the motion to dismiss countered that these rules did not apply because chancery courts have continuing jurisdiction in child custody and visitation cases.

On February 24, 1999, the chancery court denied Black-wood’s motion to dismiss, and stated that it was treating Floyd’s petition for visitation as a motion to modify the parties’ divorce decree. The court ruled that res judicata did not apply and stated that it had “continuing jurisdiction to decide matters involving child custody and visitation, the paramount consideration being the welfare and best interests of the child.”

Subsequently, the chancellor held a hearing wherein the parties presented evidence on the visitation issue and Jim-Jim’s best interests. At the hearing’s end, the chancellor ruled that Floyd had established that she was a stepparent who stood in loco parentis to a child of whom the court had not been aware at the time of the divorce, and that the court was not required to find a change of circumstances before modifying the divorce decree. By his order entered July 19, 1999, the chancellor granted Floyd’s request for reasonable visitation, from which Blackwood filed this appeal.

Blackwood first argues that the provisions of Ark. R. Civ. P. 60 barred the chancery court from modifying its order. Although it has since been amended by In Re Arkansas Rules of Civil Procedure, 340 Ark. Appx. (January 27, 2000), Rule 60 as it stood at the time Blackwood filed his motion provided in relevant part as follows:

(b) Ninety-Day Limitation. To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk.

Ark. R. Civ. P. 60(b)(1999). No one disputes the fact that the chancellor entered his order which modified the original divorce decree 314 days after the decree was entered. The chancellor simply held that he had continuing jurisdiction over any visitation issue because the issue involved the welfare and best interests of the child.

The only exceptions to the ninety-day limit in Rule 60(b) are set out in provisions (a) and (c) of Rule 60. Provision (a) provides that, after the ninety-day deadline, a court only has jurisdiction to correct clerical errors and provision (c) enumerates seven, different grounds by which a court may set aside or modify a judgment. Ark. R. Civ. P. 60(a) and (c)(1999). After ninety days, without the showing of one of the foregoing exceptions, a court has no power to modify or set aside an order. See West v. Belin, 314 Ark. 40, 858 S.W.2d 97 (1993); Hayden v. Hayden, 291 Ark. 582, 726 S.W.2d 287 (1987). Floyd does not raise or argue any of these exceptions.

Instead, Floyd makes the assertion that Rule 60 does not apply in child custody or visitation cases. She cites the cases of Office of Child Support Enforcement v. Ragland, 330 Ark. 280, 954 S.W.2d 218 (1997), and Campbell v. Richardson, 250 Ark. 1130, 468 S.W.2d 248 (1971). In doing so, she argues that once a court takes jurisdiction over child custody, support, or visitation issues, the court has continuing jurisdiction to modify orders affecting the best interests or welfare of the child. The cases Floyd relies on actually stand for the setded rule that, while there is continuing authority in the court granting a decree of divorce to revise or alter orders contained in such decree affecting the custody and control of the minor children of the parties, such orders cannot be changed without proof showing a change in circumstances from those existing at the time of the original order. See also Myers v. Myers, 207 Ark. 169, 179 S.W.2d 868 (1944). While Floyd asserts that she had a private agreement with Blackwood to visit Jim-Jim after the divorce, she made no contention at the time of the parties’ divorce that she stood in loco parentis to her stepson, nor did she request the chancellor to award her visitation with her stepson. As a consequence, the chancellor never exercised jurisdiction over Jim-Jim because visitation was never an issue.

In short, in the cases cited by Floyd, the courts heard evidence and granted or denied custody or visitation at the time of divorce. Here, at the time of the original divorce proceeding, Floyd had every opportunity to prove that she had established an in loco parentis relationship with Jim-Jim and, as a result, might have established that visitation was in the best interests of the child. However, Floyd failed to do so, and when Floyd ended her marital relationship with Blackwood, her legal status as a stepparent also ended. Any private agreement Floyd may have had with Blackwood had no legal effect. In this connection, it is also significant that Floyd did not offer any argument asserting that extrinsic fraud had been utilized in obtaining the parties’ decree. See Ark. R. Civ. P. 60(c)(4) (1999).

Also, contrary to Floyd’s arguments, this court applies Rule 60(b) to child custody cases. See Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997). In Slaton, the parties were divorced on September 26, 1991, and Mr. Slaton was awarded custody of the children. The chancery court entered an order modifying custody on March 5, 1992. This court held that the chancery court did not have jurisdiction to modify or set aside its order beyond the ninety-day limitation set out in Rule 60(b) because none of the conditions listed in Rule 60(c) existed.

As in the Slaton case, there is nothing in the record here to suggest that the ninety-day limitation in Rule 60 should not apply or that any of the exceptions under Rule 60(c) applied. Thus, the chancery court did not have jurisdiction to modify its divorce decree to add a visitation provision after ninety days elapsed after Blackwood’s and Floyd’s divorce decree was entered on September 8, 1998.

In conclusion, we address that part of Floyd’s argument that her close stepparent relationship with Jim-Jim was unknown to the chancellor at the time of the parties’ divorce, and that this relationship was a material circumstance to warrant extending her visitation. Floyd cites a string of cases in which a stepparent was granted visitation rights or custody of a stepchild. Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998); Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997); Riddle v. Riddle, 28 Ark. App. 244, 775 S.W.2d 513 (1989); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988). These cases, however, are not controlling of the situation before us. In those cases, the stepparents asserted their visitation or custody rights, the courts heard evidence, and they granted or denied the right to custody or visitation at the time of the divorce. As discussed thoroughly above, Floyd simply decided not to assert any right to visitation with Jim-Jim at the time of the divorce, and when she finally did, it was too late.

Because the chancery court’s order modifying the divorce decree is void for lack of jurisdiction, we need not address Black-wood’s other arguments for reversal.

Reversed and remanded with instructions to dismiss the July 19, 1999, order.

       This court addressed other procedural issues in Slaton, including consideration of a motion for new trial pursuant to Ark. R. Civ. P. 59, and claims of waiver, estoppel, and res judicata. However, the court rejected the trial court’s express reliance on Rule 60(b) in stating that the lower court had no jurisdiction to modify the child custody order. Id.


text:
    George L. SEAY and James Irby Seay, Jr. v. WILDLIFE FARMS, INC.
    00-334
    29 S.W.3d 711
    Supreme Court of Arkansas
    Opinion delivered November 2, 2000

      Charles J. Linclon and John R. Myers, for appellants.

      Malcolm R. Smith, RA. and Marian M. McMullan, P.A., for appellee.
   Tom Glaze, Justice.

The court of appeals certified this case to us based upon the appellee’s motion to dismiss appellants’ appeal, asserting appellants failed to obtain a proper extension to file their record as provided under Ark. R. App. P.— Civ. 5(b). We accepted jurisdiction because the question presented involves the interpretation of a rule of appellate procedure and an issue of first impression.

The underlying facts leading to this case involve a dispute over the distribution of the assets of a liquidating trust that contained approximately 1,600 acres of land previously held by a closely-held family corporation called Wild Life Farms, Inc. (WLF). WLF was dissolved and the bulk of its assets, along with the 1,600 acres of land were transferred to the trustees, First National Bank in Stuttgart and Helen Quinn, of the liquidating trust. Under the terms of the trust, the trust was to be terminated after three years and the assets would be distributed. After three years expired, the trustees sold 1,440 acres and appellee Wildlife Farms (WF) took tide.

Appellants George Seay and James Seay, Jr., subsequently filed suit against the trustees, alleging the Seays were entitled to the trust assets and the trustees had no power to have conveyed the title to the acreage to WF. WF eventually filed a motion for partial summary judgment wherein it asserted that, contrary to the Seays’ claim, the trustees had authority to sell the acreage to WF and WF was a bona fide purchaser without any notice of a trust provision which prohibited the sale of the land outside the three-year life of the trust. On September 28, 1998, the chancellor granted WF’s partial summary judgment. A trial was then held in the matter from October 5, 1998, to October 12, 1998, and on December 18, 1998, the chancellor entered an “interim decree” dismissing the Seays’ complaint “except as to matters and things hereby reserved as set out in the court’s findings of fact and conclusions of law.” The Seays appealed the chancellor’s earlier September 28 order granting WF partial summary judgment, but their appeal was later dismissed by the court of appeals on October 27, 1999, because the chancellor’s order was not final. See Seay v. Wildlife Farms, Inc., CA-99-122, slip op. at 4 (Ark. App. October 27, 1999). The court of appeals further held that the Seays failed to comply with Ark. R. Civ. P. 54(b) under which they may have acquired an express determination that they could appeal the non-final order because there was no reason to delay an appeal. Id.

After the Seays’ appeal was dismissed, the parties returned to the chancellor, and he entered a final order on November 29, 1999, resolving the issues against the Seays that had been previously reserved in the chancellor’s “interim decree” dated December 18, 1998. On December 13, 1999, the Seays filed their notice of appeal from the November 29 final order, and they designated the entire record and transcript, stating they had made arrangements for the payment of the transcript. While the record is unclear why, the Seays then, on December 28, 1999, filed a second notice of appeal from “the trial court’s granting of a partial summary judgment in favor of Wildlife Farms, the final order entered on November 29, 1999.” They further designated “all portions of records relating to the granting of the summary judgment in favor of Wildlife Farms.” The Seays further stated that they had ordered the transcript and had made arrangements to pay the court reporter and court clerks.

On January 19, 2000, thirty-seven days after their first notice of appeal, the Seays moved to extend the time to lodge their transcript, stating that, because of the voluminous record, the court reporter would be unable to finish the transcript in the time allowed. Without a hearing, the chancellor granted the Seays’ motion and directed the record to be filed by June 29, 2000. The order made no mention that a transcript had been requested. On March 17, 2000, the Seays filed a partial record relevant only to the lower court’s order granting WF’s partial summary judgment; no trial testimony was included. On May 2, 2000, the Seays filed their abstract and brief relating only to the summary judgment issue. When WF went to the supreme court clerk’s office to check out the record so it could prepare its responsive brief, WF learned that the Seays had filed an abbreviated record rather than the entire record, which had been previously designated by the Seays in both their first notice of appeal and their motion to extend time to lodge their transcript. Upon learning the Seays had lodged only an abbreviated record, WF moved to dismiss the Seays’ appeal, asserting they failed to obtain a timely extension under the dictates of Ark. R. App. — Civ. 5(b). As a consequence, WF contends the Seays’ appeal was untimely and should be dismissed. We agree.

Rule 5(a) provides that the record on appeal shall be filed with the clerk of the supreme court and docketed therein within ninety days from the filing of the first notice of appeal. If a party fails to file the record within the ninety-day period provided under Rule 5(a), the party’s appeal is dismissed. See Jordan v. White River Medical Center, 301 Ark. 292, 783 S.W.2d 836 (1990). The court has stated on many occasions that it expects compliance with its rules so that unnecessary delays will be eliminated. See Alexander v. Beaumont, 275 Ark. 357, 629 S.W.2d 300 (1982); Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995).

Under Rule 5(b), a party may obtain an extension of time to file a record, but this court has held that it does not view granting such extensions as a mere formality. Harper v. Henson, 262 Ark. 294, 556 S.W.2d 142 (1977). That provision provides as follows:

(b) Extension of time. In cases where there has been designated for inclusion any evidence or proceeding at the trial or hearing ivhich was stenographically reported, the trial court, upon finding that a reporter’s transcript of such evidence or proceeding has been ordered by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence or proceedings steno-graphically reported, may extend the time for filing the record on appeal, but the order of extension must be entered before the expiration of the period for filing as originally prescribed or extended by a previous order. In no event shall the time be extended more than seven (7) months from the date of the entry of the judgment, decree or order .... Counsel seeking an extension shall give to opposing counsel notice of the application for an extension of time. (Emphasis added.)

The ninety days contemplated by Rule 5 begins to run from the filing of the first notice of appeal. Street v. Kurzinski, 290 Ark. 155, 717 S.W.2d 798 (1986). In this case, that first notice was filed on December 13, 1999, which would have made the record due in the clerk’s office on March 13, 2000. However, the record was not filed until March 17, 2000 — ninety-five days after the filing of their first notice of appeal. As noted above, the record that was filed contained only those portions of the transcript that related to the partial-summary-judgment order. The Seays apparently knew at the time they filed their first notice of appeal that the only issue they would raise would be the order granting partial summary judgment, as they state in their brief to this court that the second notice of appeal was meant to “clarify” that they “were in fact appealing the partial summary judgment order.” In addition, they knew that the record dealing with the partial summary judgment contained nothing that had been stenographically reported. Nevertheless, they sought an extension from the trial judge based on an assertion that the court reporter could not transcribe the entire record in the ninety days allotted.

Rule 5(b) specifically contemplates a situation in which the court reporter needs extra time to complete the record because there were proceedings or evidence at the trial that have to be transcribed. In Jordan, supra, this court noted that “[when it was] conceded this record contained no stenographically reported portions [,] [t]he trial court was without authority to extend the time to file the record[.]” Jordan, 301 Ark. at 293, 783 S.W.2d at 837. The Jordan holding is controlling here. Because there was nothing stenographically reported that was to be included in the record filed with our clerk’s office, the trial court should not have granted the Seays an extension. Furthermore, because the extension was improper, the record was lodged outside the ninety days allowed by Rule 5. It is an appellant’s burden to comply with all steps in a proceeding that might redound to his benefit, Canal Ins. Co. v. Arnery, 258 Ark. 893, 530 S.W.2d 178 (1975), and it is thus the responsibility of the appellant to see that the record is filed in time. Davis v. C & M Tractor Co., 2 Ark. App. 150, 617 S.W.2d 382 (1981). The timely lodging of the record from the proceeding appealed has been deemed a jurisdictional requirement to perfecting an appeal. Anderson v. Seward Luggage Co., 62 Ark. App. 186, 969 S.W.2d 683 (1998). Because the Seays failed to timely lodge the record, their appeal must be dismissed.

We note at this point that the Seays contend we should find that WF’s motion to dismiss this appeal is untimely. Citing Dugal Logging, Inc. v. Arkansas Pulpwood Co., 336 Ark. 55, 984 S.W.2d 410 (1999), they assert that WF should have raised the issue of the timeliness of the lodging of the record before the record was filed. WF responds that, because the Seays filed a notice of appeal designating the entire record, it had no reason to believe that the entire record would not be lodged. WF states that, because of the Seays’ misrepresentation as to the necessity for extra time, their motion to dismiss is timely. As just noted, the timely lodging of a record on appeal is jurisdictional, and it was the Seays’ burden to see that their notice of appeal and record on appeal were timely filed.

As a final matter, the Seays also ask this court to consolidate the records in this case, 00-334, and CA-00-780. The record lodged in CA-00-780 is the “entire record,” as opposed to the “partial summary judgment record” lodged in this case. However, the rules provide for only one record. There is nothing that permits an appellant to file different records for different issues on appeal from the same case, and indeed, our case law has been consistent in refusing to permit piecemeal appeals. See Warren v. Kelso, 339 Ark. 70, 3 S.W.3d 302 (1999); Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998). If the Seays had wanted to appeal all of the orders entered by the trial court, they should have waited to make their arguments on the partial summary judgment issue when they filed a brief dealing with any other issues in CA-00-780. However, they chose only to brief the partial-summary-judgment issues; their failure to make any other arguments on appeal constitutes waiver of those issues. See Burks Motors v. Int. Harvester Co., 250 Ark. 641, 466 S.W.2d 945 (1971) (limitation of attack on appeal to one ground constituted an abandonment of all others; failure of appellant to argue any other point asserted by it in the only brief filed by it constituted a waiver or abandonment of such other points).

By filing a brief dealing only with the summary-judgment issue, the Seays have waived or abandoned any other issues they could have raised. For that reason, there are no other matters that could be consolidated with the instant case, and this request will be denied.

WF’s motion to dismiss appeal is granted.

       The Seays alleged many counts setting out their claims for damages and relief, but it is unnecessary for purposes of this opinion to discuss those claims here.

       The November 29, 1999, order reflects the chancellor held a hearing on July 21 and 22, 1999, while the Seays’ appeal was pending, but no order was entered until after the court of appeals’s dismissal of the Seays’ appeal.

       The ninetieth day would actually have been March 12, but since that was a Sunday, the period ran to the end of the next day. Ark. R. Civ. P. 6(a) (2000).

       In their response to WF’s motion to dismiss the appeal from the trial court’s September 28, 1998, order, the Seays specifically stated that “there is no transcript required for this appeal because no testimony was taken in this case and no hearing was held by the trial court on the appellee’s motion for partial summary judgment, and no transcript exists in this case nor is one required in the pursuance of this matter. . . . Nothing in the entire record of this appeal required the services of a court reporter.”

       Before we accepted certification of this case, the court of appeals’ docket number was CA-00-334. On September 7, 2000, we also accepted certification of motions to dismiss and to consolidate in CA-00-780. No briefs have been filed in CA-00-780.

         See, e.g., Ark. R. App. P. Civ. 6, providing that “[t]he record” (not “all records”) shall be compiled in accordance with this court’s rules.


author: Annabelle Clinton Imber Justice.

text:
    Kevin TUCKER v. ROBERTS-MCNUTT, INC.
    00-221
    29 S.W.3d 706
    Supreme Court of Arkansas
    Opinion delivered November 2, 2000

      Christopher D. Anderson, for appellant.

      Friday, Eldredge & Clark: by: Betty J Demory, for appellee.
   Annabelle Clinton Imber Justice.

Appellant Kevin Tucker appeals an adverse decision of the Arkansas Workers’ Compensation Commission. This case is before us on petition for review from the Arkansas Court of Appeals; therefore, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998).

On June 17, 1997, Mr. Tucker filed a claim with the Arkansas Workers’ Compensation Commission alleging that he sustained a compensable injury on May 23, 1997, while he was in the employ of appellee, Roberts-McNutt. Specifically, he alleged that he is entitled to medical benefits and permanent disability benefits based upon an impairment rating of 8% to the body as a whole, as well as temporary total disability benefits for the period beginning July 8, 1997, and endingjuly 31, 1997. Roberts-McNutt controverted Mr. Tucker’s claim in its entirety, arguing that Mr. Tucker failed to make a timely report of a work-related injury, that he did not sustain an injury in the course and scope of his employment, and that, even if Mr. Tucker did sustain a compensable injury, Roberts-McNutt would be entitled to an offset for the amount of any unemployment benefits Mr. Tucker drew between July 8, 1997, and July 31, 1997.

A hearing took place on March 13, 1998, before an administrative law judge. In an opinion filed on May 20, 1998, the law judge held that Mr. Tucker sustained a compensable injury, that he was entided to all of the benefits sought, and that Roberts-McNutt was entitled to an offset for unemployment benefits drawn by Mr. Tucker during the period July 8 through July 31, 1997. RobertsMcNutt appealed the law judge’s decision to the full Workers’ Compensation Commission. In an opinion filed on March 23, 1999, the Commission reversed the law judge’s decision and held that Mr. Tucker was not entitled to compensation because he failed to prove by a preponderance of the evidence that he sustained a compensable injury on May 23, 1997. Mr. Tucker appealed the Commission’s decision to the Arkansas Court of Appeals. In Tucker v. Roberts-McNutt, 69 Ark. App. 150, 12 S.W.3d 640 (2000), the court of appeals reversed the Commission’s decision and remanded the case for the award of benefits, holding that the Commission’s opinion “did not display a substantial basis for denying Mr. Tucker’s claim.”

Roberts-McNutt petitioned this court to review the decision of the court of appeals. In its petition, Roberts-McNutt argues that the court of appeals went beyond the substantial-evidence standard of review and engaged in the assessment of the credibility of witnesses. We conclude that the Commission expressly relied upon erroneous factual findings in reaching its decision. Accordingly, we must reverse its decision and remand to the Commission for its full examination of the relevant evidence presented in this cause.

The evidence presented to the Commission consisted of the testimony of Mr. Tucker and two of his supervisors, Mr. Wayne Lavender and Mr. Tom Bordeaux, Mr. Tucker’s medical records, the deposition testimony of Dr. Scott Schlesinger, and a safety incentive form signed by Mr. Tucker. The parties stipulated that an employer/employee relationship existed and that, if the injury was deemed compensable, Mr. Tucker would be entitled to the maximum rate of compensation.

Roberts-McNutt is a construction company specializing in waterproofing and roofing. On May 23, 1997, Mr. Tucker was employed by Roberts-McNutt as a job foreman and was working on the restoration of the Argenta Depot. According to Mr. Tucker’s testimony, he first injured his back in September 1996 when he was lifting 300 feet of water hose from the bed of his pickup. RobertsMcNutt provided treatment for him at the Little Rock Medical Clinic. Mr. Tucker again sought treatment for his back on March 4, 1997, from Dr. David Bryant, a chiropractor. He presented to Dr. Bryant with complaints of lower back pain originating at L4-L5 and L5-S1 and radiating down his leg. Mr. Tucker remained under the care of Dr. Bryant through May 19, 1997. Mr. Tucker did not claim compensation for the treatment with Dr. Bryant, although he attributed his condition to the September 1996 injury.

Mr. Tucker testified concerning his present claim for compensation that, at approximately 11:00 a.m. on May 23, 1997, he was standing on the top of three sections of scaffolding, pulling another section of scaffolding up with a rope, when the section he was pulling became caught on another section. After he pulled the rope again, Mr. Tucker testified that he “pulled [his] back out.” He immediately told the man below him to get out of the way because he was going to drop the scaffolding and come down. Mr. Tucker testified that he continued working on the ground until lunch time, a period of approximately twenty minutes. Although Mr. Tucker testified that two other employees, Mr. Mike Mitchell and Mr. Fred Ready, witnessed this incident and could verify his account of the injury, neither witness testified at the hearing.

According to Mr. Tucker, he informed his supervisor Wayne Lavender at lunch time on May 23, 1997, that “I tore up my back pulling the scaffolding” and that “I am going to the clinic.” Mr. Tucker then left the job site and went to the Little Rock Medical Clinic, which he believed to be the clinic used by Roberts-McNutt for work-related injuries, where he was treated by Dr. Thomas Jackson.

Dr. Jackson’s office notes indicate that Mr. Tucker complained of bilateral recurrent back pain. According to the Arkansas Workers’ Compensation Commission’s Physician’s Report completed by Dr. Jackson on May 23, 1997, Mr. Tucker informed Dr. Jackson that he was injured while “pulling up scaffold from three sections high.” The Physician’s Report reveals a diagnosis of bilateral recurrent lumbar/sacral strain and shows that Dr. Jackson treated Mr. Tucker with an injection and medication. Dr. Jackson released Mr. Tucker to return to work with restrictions. Mr. Tucker testified that he returned to the job site that day, but found it deserted. Because the following Monday was the Memorial Day holiday, he did not return to work until Tuesday, May 27. He worked full time, but under the restrictions imposed by Dr. Jackson, until June 11, 1997, when he was fired by Roberts-McNutt for lack of production.

Mr. Tucker continued to seek treatment for his back from Dr. Jackson and from Dr. Bryant. On June 23, 1997, Mr. Tucker also sought the treatment of a neurosurgeon, Dr. Scott Schlesinger, upon the recommendation of Dr. Bryant. In a letter dated June 23, 1997, Dr. Schlesinger noted that Mr. Tucker first injured his back in September 1996, but that “[o]n May 23, 1997, he injured his back again and is now suffering back and left leg pain. He gets occasional pain in the right leg.” A July 7, 1997 MRI ordered by Dr. Schlesinger revealed disc degeneration at L5-S1 and a herniation at L4-L5 for which Dr. Schlesinger ordered immediate surgery. In a letter dated that same day, Dr. Schlesinger reported these findings to Dr. Bryant stating that “the disc herniation at L4-5 is clearly an acute process and almost certainly caused from the accident on May 23, 1997.” Dr. Schlesinger performed surgery to repair the herniated disc on July 8, 1997. In his operative report, he again notes that Mr. Tucker’s back and lower extremity pain “began after an accident at work on May 23, 1997.” Dr. Schlesinger released Mr. Tucker to return to work with restrictions on July 31, 1997.

In deposition testimony, Dr. Schlesinger testified he was informed by Mr. Tucker that he had injured his back on May 23, 1997. Dr. Schlesinger stated that the nature of the disc herniation, which was “probably one of the largest I have seen” led him to believe that it did happen in the precipitous manner described by Mr. Tucker. Although Dr. Schlesinger acknowledged that Mr. Tucker had been suffering from back problems since September of 1996, he testified that the previous injury likely precipitated the more acute injury which occurred in May, stating “[i]t is very rare to see somebody that has a herniated disc that has never had any [back problems].”

Mr. Tucker’s supervisor, Wayne Lavender, testified that on May 23, 1997, he did indeed have a conversation with Mr. Tucker around lunch time. At that time, Mr. Tucker told Mr. Lavender that he was going to take off and go to the doctor. But, according to Mr. Lavender, Mr. Tucker did not tell him that he had injured his back while working or that he had injured it by pulling up scaffolding. Mr. Lavender testified he first learned that Mr. Tucker was claiming a work-related injury two weeks later when he was informed by the office secretary that Mr. Tucker had filed a claim. If he had known Mr. Tucker was injured on the job, Mr. Lavender testified that he would have filled out paperwork and escorted Mr. Tucker to the doctor’s office personally.

Tom Bordeaux, a general superintendent and safety director at Roberts-McNutt, also testified that Mr. Tucker failed to report a work-related injury. Mr. Bordeaux testified that, as safety director for Roberts-McNutt, he conducted safety meetings for the employees. He had noticed Mr. Tucker in attendance at these safety meetings where Mr. Bordeaux discussed the proper procedure for reporting an injury on the job: an injured employee was supposed to report the injury immediately to a supervisor, who would then escort the injured employee to the office or to Columbia Doctor’s Hospital.

Mr. Bordeaux also testified that Roberts-McNutt supplies time sheets to employees each day which provide space to report any injuries that occur on the job. According to Mr. Bordeaux, he reviews all time sheets and Mr. Tucker did not claim a work-related injury on his time sheet for May 23, 1997. Furthermore, Mr. Bordeaux identified a form labeled “Safety Incentive Program, May 12th-May 25th” that states: “I have worked the past week without an occupational injury or illness.” This form was signed by Kevin Tucker and dated May 29, 1997. Mr. Tucker acknowledged that he signed the form, but claimed that he signed it as a matter of routine and that the form was not accurate.

Finally, Mr. Bordeaux testified that Mr. Tucker did not restrict his work following May 23, 1997, as he claims because the daily time sheets prepared by Mr. Tucker as foreman on the Argenta job indicate that he moved and repositioned scaffolding on May 29, 1997. According to Mr. Bordeaux, he was unaware that Mr. Tucker claimed to have been injured on the job until two weeks after the alleged injury when the office secretary informed him that Mr. Tucker had filed a workers’ compensation claim.

On appeal, this court will view the evidence in the light most favorable to the Commission’s decision and affirm when that decision is supported by substantial evidence. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000) citing Ester v. National Home Ctrs, Inc., 335 Ark. 356, 981 S.W.2d 91 (1998)). Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. Crudup v. Regal Ware, Inc., supra; Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000). A substantial basis exists if fair-minded persons could reach the same conclusion when considering the same facts. Crudup v. Regal Ware, Inc., supra. The determination of the weight to be given the evidence and the resolution of any conflicts in the evidence are matters left to the Commission. Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999). The Commission is not required to believe the testimony of any witness, and may accept and translate into findings of fact only those portions of testimony it deems worthy of belief. Id. And yet, if the Commission errs when it translates the evidence, and that error is expressly relied upon in reaching its decision, the reviewing court “is left to speculate concerning what evidence the Commission intended to rely on when making its decision.” Id. at 529. See also Meister v. Safety Kleen, 339 Ark. 91, 3 S.W.3d 320 (1999).

The Commission here determined that Mr. Tucker failed to prove that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence because it did not find credible his claim that he sustained an injury on May 23, 1997. To be entitled to compensation, Mr. Tucker was required to prove by a preponderance of the evidence that he sustained an injury that is identifiable by time and place of occurrence, arose out of and in the course of his employment, and required medical services. Ark. Code Ann. § 11-9-102(4)(A), -102(E)(i) (Supp. 1999). A compensable injury must be supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (1999). Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § ll-9-102(16)(B) (Supp. 1999).

The Commission’s decision to deny benefits was predicated upon the following findings of fact: (1) Dr. Jackson’s office notes indicating that the claimant was suffering from “Recurrent back pain - PT c/o LT bilateral lumbar pain,” and failing to mention anything about the claimant lifting scaffolding and injuring his back at work; (2) the fact that the diagnosis of an extremely large disc herniation at the L4-5 level was not made by Dr. Schlesinger until six weeks after the alleged injury; (3) Dr. Schlesinger’s testimony that anyone with the injury attributed to Mr. Tucker as of May 23, 1997, would have been unable to perform “construction type work” or climb scaffolding; (4) Mr. Tucker’s failure to report a work-related injury on either his time sheet or his safety incentive form; (5) the testimony of Mr. Lavender and Mr. Bordeaux that Mr. Tucker never reported a work-related injury; and (6) the Commission’s own finding that “it is unlikely that a person who suffered from a disc herniation the size of the claimant’s as the result of an injury on May 23, 1997, would have been able to work for several weeks before having surgery.” In conclusion, the Commission stated that “[t]he only evidence we have supporting the claimant’s contention that he sustained a compensable injury is the claimant’s testimony that there was an incident on May 23, 1997,” and the Commission specifically found “the claimant not to be a credible witness.” (Emphasis added).

As stated above, the Commission was not required to believe the testimony of the claimant or any other witness; it may accept and translate into findings of fact only those portions of testimony it deems worthy of belief. Holloway v. Ray White Lumber Co., supra. However, in the present case, the Commission erred in translating the evidence presented into findings of fact.

First, contrary to the finding of the Commission, the testimony of Mr. Tucker was not the only evidence presented supporting his contention that there was an incident-on May 23, 1997. Mr. Tucker testified that he informed Mr. Lavender only minutes after the accident that he had “tore up [his] back pulling the scaffolding” and was going to the doctor. Mr. Lavender’s own testimony corroborates Mr. Tucker’s testimony as to the nature and time of the conversation between them on May 23, 1997. The testimony differs only in Mr. Lavender’s denial that Mr. Tucker told him that the back injury occurred while working on the scaffolding. The medical evidence presented by both parties also corroborates Mr. Tucker’s testimony, demonstrating that Mr. Tucker consistently informed his treating physicians that the cause of his injury was a work-related accident occurring on May 23, 1997. Office records from the Little Rock Medical Clinic demonstrate that Mr. Tucker went directly to the clinic after leaving the job site, arriving shortly before noon on May 23, 1997. On that date, Mr. Tucker complained of and was treated for bilateral lumbar back pain, and he informed Dr. Jackson, his treating physician, that the cause of the injury was “pulling up scaffold from three sections high.” Letters and reports prepared by Dr. Schlesinger, the neurosurgeon who performed Mr. Tucker’s back surgery, repeatedly indicate that the cause of Mr. Tucker’s injury was an accident that occurred on May 23, 1997. In deposition testimony, Dr. Schlesinger testified that the nature of Mr. Tucker’s herniated disc led him to believe that the injury occurred in the precipitous type of manner described to him by Mr. Tucker. Thus, it is clear that Mr. Tucker’s testimony is not the only evidence in the record supporting his contention that he sustained a back injury on May 23, 1997. We therefore conclude that the Commission erred in finding otherwise.

In addition to the foregoing, the Commission also erred in its translation of the evidence when it found that Dr. Jackson, who treated Mr. Tucker for back pain on May 23, 1997, “fail[ed] to mention anything about the claimant lifting scaffolding and injuring his back at work.” Contrary to this finding, Dr. Jackson did note in his physician’s report to the Commission dated May 23, 1997, that Mr. Tucker gave the following description of the accident: “pulling up scaffold from three sections high.”

Finally, the Commission erred when it found that if Mr. Tucker had been injured as he claimed on May 23, 1997, it is unlikely that he would have been able to work for several weeks before having surgery. This finding is in error because there is no evidence in the record that Mr. Tucker worked for several weeks after May 23, 1997, before undergoing surgery. According to the uncontradicted evidence, Mr. Tucker was fired by Roberts-McNutt on June 11, 1997, for lack of production. At most, Mr. Tucker worked only twelve days following the alleged injury.

As in Holloway v. Ray White Lumber Co., supra, the error in issue here is not that substantial evidence was not presented or considered in this case; instead, the reversible error is found in the Commission’s failing to make a proper de novo review of the record. That failure resulted in the making of erroneous factual findings upon which the Commission expressly relied in reaching its decision to deny compensation. We are left to speculate concerning what evidence the Commission intended to rely on when making its decision. Meister v. Safety Kleen supra; Holloway v. Ray White Lumber Co. supra. The Commission’s erroneous factual findings require our reversal of its decision. We remand this case to the Commission for its full examination of the relevant evidence presented in this cause.

Reversed and remanded.


author: Ray Thornton, Justice. Tom Glaze, Justice,

text:
    CITY of DOVER v. A.G. BARTON, City of Russellville, and City Corporation
    99-1414
    29 S.W.3d 698
    Supreme Court of Arkansas
    Opinion delivered November 2, 2000
    [Petition for rehearing denied December 7, 2000.  ]

      McCormick Law Firm, P.A., by: David H. McCormick, for appellant.

      James Dunham and Donald W. Bourne, for appellee City of Russellville.

      Alex G. Streett, for appellee City Corporation.

       Glaze, J., would grant.

   Ray Thornton, Justice.

This is the second appeal we have had regarding the City of Dover’s [Dover] attempt to construct a sewage-treatment facility. See City of Dover v. A.G. Barton, 337 Ark. 186, 987 S.W.2d 705 (1999). The facts surrounding the dispute are sufficiently laid out in the prior case. In that appeal, we reversed the trial court’s decree and held as follows:

[W]e reverse the trial court’s decree based on Act 1336 which enjoins Dover from continuing construction of the sewage-treatment facility and remand for an order consistent with this opinion.

Id. We also explained that “because the trial court applied Act 1336 retroactively and because the appellees failed to exhaust their administrative remedies, we reverse and remand.” Id. A mandate was subsequently issued by the Supreme Court Clerk and that mandate stated:

This case was submitted to the Arkansas Supreme Court on the record of the Chancery Court of Pope County and briefs of the respective parties. After due consideration, it is the decision of the court that the case be reversed and remanded for the reasons set out in the attached opinion.

On June 9, 1999, when the case was returned to the trial court after remand, the trial court entered a new order. The order found that the previously ordered injunction would remain in place and set a time schedule for appellees to respond to Dover’s motion for summary judgment. Specifically, the order stated:

[O]n this day the court considers the mandate from the Arkansas Supreme Court and the opinion of the Arkansas Supreme Court delivered April 8, 1999. Based upon all matters before the court, the court finds and orders as follows:
The Arkansas Supreme Court has ruled that Act 1336 of 1997, as a matter of law, is not applicable to the conduct of the City of Dover as alleged in this case.
All claims for relief premised upon a violation of Act 1336 of 1997 should be, and hereby are, dismissed without prejudice for failure to state a claim upon which relief can be granted.
The previously issued injunction remains in effect until such time as the court hears the remaining issues, including the claims for relief based upon the ordinances of the City of Russellville.

(Emphasis added.)

On September 13, 1999, without holding a hearing on any issues, the trial court entered an order granting Russellville’s motion for summary judgment and kept the injunction in effect. On September 17, 1999, Dover filed a motion for reconsideration and a motion requesting rulings on outstanding motions. The trial court did not rule on these motions. Dover appeals, raising eight points for our review. Because we conclude that the trial court failed to follow the mandate and our previous opinion in this case, we reverse and remand the matter to the trial court for further action.

We first address the question whether the trial court’s actions in continuing to enjoin Dover’s project without a hearing was in compliance with our mandate and accompanying opinion. In Dolphin v. Wilson, 335 Ark. 113, 983 S.W.2d 113 (1998), we adopted the Third Circuit Court of Appeals’ rules regarding a trial court’s treatment of a case on remand. We held:

The history of the mandate rule was reviewed recently by the Third Circuit Court of Appeals. See Casey v. Planned Parenthood, 14 F.3d 848 (3d Cir. 1994). In Casey, the Third Circuit observed:
Of these rules, the most compelling is the mandate rule. This fundamental rule binds every court to honor rulings in the case by superior courts. As the Supreme Court has stated, “In its earliest days this Court consistently held that an inferior court has no power or authority to deviate from the mandate issued by an appellate court.” Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 1040, 92 L.Ed. 1403 (1948).
Casey, 14 F.3d at 856. Quoting from Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 (3d Cir. 1985), the Third Circuit went on to underscore the deference a trial court must give to the mandate:
A trial court must implement both the letter and spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces.
Casey, 14 F.3d at 857.

In Dolphin supra, we also explained some of the major precepts regarding mandates. We explained:

A “mandate” is the official notice of action of the appellate court, directed to the court below, advising that court of the action taken by the appellate court, and directing the lower court to have the appellate court’s judgment duly recognized, obeyed, and executed.
5 Am. Jur. 2d § 776.
However, the lower court is vested with jurisdiction only to the extent conferred by the appellate court’s opinion and mandate. Therefore, the question of whether the lower court followed the mandate is not simply one of whether the lower court was correct in its construction of the case, but also involves a question of the lower court’s jurisdiction.
5 Am. Jur. 2d, § 784.
If an appellate court remands with specific instructions, those instructions must be followed exactly, to ensure that the lower court’s decision is in accord with that of the appellate court.
Where a remand limits the issues for determination, the court on remand is precluded from considering other issues, or new matters, affecting the cause. Thus, where the case is remanded for disposition of the remaining post-trial issues that were not addressed by the trial court, any issue the trial court had previously addressed may not be considered on remand. Similarly, when a case is remanded for a specific act, the entire case is not reopened, but rather the lower tribunal is only authorized to carry out the appellate court’s mandate, and the trial court may be powerless to undertake any proceedings beyond those specified.
5 Am. Jur. 2d, § 787.
Any proceedings on remand which are contrary to the directions contained in the mandate from the appellate court may be considered null and void.
5 Am. Jur. 2d, § 791.

Finally, in Dolphin supra, we noted that “directions by an appellate court to the trial court as expressed by the opinion and mandate must be followed exactly and placed into execution. Indeed, the jurisdiction of the trial court on remand is limited to those directions.” Dolphin, supra.

Turning to the case now on review, we conclude that the trial court did not follow our mandate and previous opinion. In our previous opinion, we held that Act 1336 of 1997 did not apply to the facts of the present case and reversed the trial court’s order enjoining Dover from constructing its facility on the basis of Act 1336. Dover’s failure to comply with Act 1336 was the only finding made by the trial court to support the imposition of the injunction. Despite our mandate reflecting that an injunction based upon Act 1336 could not remain in place, the trial court ordered that the injunction remain in effect until hearing the remaining issues. Without taking additional evidence or holding a hearing on the issues, the trial court then granted Russellville’s motion for summary judgment on the basis of noncompliance with an ordinance adopted by the City of Russellville.

Having decided that the trial court failed to follow our mandate and opinion on remand, it is not necessary for us to address the remaining points in this appeal. However, we choose to review whether the trial court erred in granting summary judgment based upon a violation of the City of Russellville’s Land Subdivision and Development Code.

Summary judgment is appropriate when there is no genuine question of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 5 S.W.3d 460 (1999). Once the moving party established a prima fade entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet “proof with proof’ and demonstrate a genuine issue of material fact. Id. Summary judgment should be denied if under the evidence reasonable men might reach different conclusions from undisputed facts. Leigh Winham, Inc. v. Reynolds Ins. Agency, 219 Ark. 317, 651 S.W.2d 74 (1983). On appellate review, we determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. Ford, supra.

Russellville sought and received summary judgment on the basis of Dover’s violation of the City of RusseEviEe’s Land Subdivision and Development Code. SpecificaEy, RusseEviEe argued that because the proposed sewage-treatment facEity was located on property either within one mile from its city limits or on property that was contiguous to property located within one müe from its city limits, Dover was required to foEow RusseEviEe’s Land Subdivision and Development Code, and that Dover failed to comply with that Code.

The RusseEviEe Land Subdivision and Development Code states:

These regulations shaU be applicable to all lands within the corporate limits of the City of Russellville, Arkansas and afl lands outside the corporate Emits within one mEe of the corporate limits and, also either contiguous to said Emits or served by RusseEviEe City Water or served by RusseEviEe City Sewer.
These regulations and development standards shall apply to the following forms of land subdivision:
The construction of any street or public utility through any tract of land within the jurisdictional limits of the City of Russellville as stated herein.

Land Subdivision and Development Code. We note that Ark. Code Ann. § 14-56-413 (Supp. 1997) granted Russellville the authority to implement its Land Subdivision and Development Code. That statute states in relevant part that:

(2) (A) Cities now having eight thousand (8,000) population or more and situated on navigable streams shall have the authority to administer and enforce planning and zoning ordinances outside their corporate limits as follows:
(i) For cities of eight thousand (8,000) to fifty thousand (50,000) population, the jurisdictional area will be one (1) mile beyond the corporate limits.

Id.

Russellville offered the affidavits of Danny Hale and Morgan Barrett to describe the location of the proposed plant. Danny Hale’s affidavit stated that:

In my opinion, the items on sheet two which purport to be located in the northwest quarter of the northwest quarter of section twenty-one, township eight north, range twenty west are in fact designated by sheet two to be located in that area. As such, those structures are within a portion of the area described by City of Russellville ordinances no. 1314 which is subject to Russell-ville’s Land Subdivision and Development Code.

Morgan Barrett’s affidavit stated that:

[T]he proposed sewage-treatment plant which is included within the northwest quarter of the northwest quarter of section twenty-one, township eight north, range twenty west is also included within the area over which the City of Russellville exercises regulation of its Land Subdivision and Development Code.

Russellville also argued that even if Dover will not be constructing any new structures within one mile of its city limits, the project would be contiguous to a previously existing “pumping station” that is within one mile of Russellville’s city limits and that operation of the pumping station, in connection with a new sewage-treatment facility, subjects Dover to its Land Subdivision and Development Code.

Dover responded to Russellville’s allegations by arguing that its proposed sewage-treatment facility is not subject to regulation under the Land Subdivision and Development Code because the proposed facility will not be within one mile of the city limits of Russellville. Dover supported this theory with several affidavits. Bill Hope, a licensed engineer, stated in his affidavit that:

[T]he original design of the sewage-treatment facility called for a portion of the plant to be constructed within the northwest quarter of the northwest quarter of section twenty-one, township eight north, range twenty west. However, those plans have been redrawn so that no portion of the sewage-treatment plant to be constructed by the City of Dover lies within the northwest quarter of the northwest quarter of section twenty-one, township eight north, range twenty west.
I further have knowledge that a pumping station and a manhole which lie in the northwest quarter of the northwest quarter of section twenty-one, township eight north, range twenty west, has been in existence since prior to 1981.

Dover also offered Johnny Waldo’s affidavit. Mr. Waldo stated that:

[T]he pumping station and manhole which lies in the northwest quarter of the northwest quarter of section twenty-one, township eight north, range twenty west has been in place and in existence since prior to 1981. I further state that I am familiar with the diagram prepared by Bill Hope, Sr., City Engineer, for the City of Dover, during May 1999, which shows that all improvements being constructed pursuant to the City of Dover’s current plan now He outside the northwest quarter of the northwest quarter of section twenty-one, township eight north, range twenty west. I further state that no portion of the improvements, structures, or other activities of the City of Dover pursuant to this project lie within one mile of the current city limits of the City of Russellville.

Based on these affidavits, Dover contended that its sewage-treatment facility would not be within Russellville’s jurisdiction and for that reason the construction of the facility did not have to comply with Russellville’s various ordinances.

The trial court found that “the affidavit of Danny Hale establishes that part of the Dover development tract is within one mile of the City of Russellville, and the remainder of the tract is contiguous to that portion within one mile.” The trial court also found that the Russellville Land Subdivision and Development Code “applies to all land contiguous to the one mile limit.” Finally, the trial court found that “neither of their affidavits [Russellville introduced affidavits from Steve Mallett, Danny Hale, and Morgan Barrett] have been controverted by the City of Dover. There is therefore no genuine issue regarding these material and dispositive facts, and the City of Russellville is entitled to judgment as a matter of law regarding its claim that the City of Dover is violating Russellville’s Land Subdivision and Development Code.”

After reviewing the conflicting statements presented in the affidavits of the parties, we conclude that the trial court erred in granting summary judgment. Specifically, we hold that there is a genuine issue of material fact present which makes summary judgment inappropriate. Russellville alleged that the proposed sewage-treatment facility would be located in an area that would subject Dover to compliance with the Russellville Land Subdivision and Development Code and supported this allegation by supporting affidavits. Dover presented evidence directly challenging Russell-ville’s allegations. Dover met proof with proof, and we conclude that by looking at the evidence presented by the parties, reasonable men could reach different conclusions on this issue. We hold that the trial court erred in granting summary judgment to Russellville on the disputed factual issues as to the location of the proposed sewage-treatment facility and whether the location of the facility is within the area statutorily authorized to be regulated by Russell-ville’s Land Subdivision and Development Code.

Because the actions of the trial court failed to follow our mandate and previous opinion, and because there remain disputed questions of fact and law, we conclude that the decision below must be reversed and remanded. It is not necessary to address the remaining points on appeal. We hereby order that the current injunction be dissolved, and that the trial court give the parties an opportunity to address any remaining issues of fact and law in the matter, including determining whether Russellville’s Land Subdivision and Development Code may enlarge the city’s jurisdiction beyond that provided in Ark. Code Ann. § 14-56-413 and whether the proposed facility is located within the jurisdictional limits of Russell-ville’s Land Subdivision and Development Code.

On June 12, 2000, Russellville filed a motion to strike Dover’s reply brief. We considered this motion along with the case. Russellville presented numerous challenges to Dover’s reply brief. Primarily, Russellville argued that Dover included new arguments in its reply brief. We do not consider arguments made for the first time in appellant’s reply brief. See Partin v. Bar of Arkansas, 320 Ark. 37, 894 S.W.2d 906 (1995). For that reason, we have not reviewed any new arguments presented, but we deny the motion to strike the entire reply brief.

Reversed and remanded.

Glaze, Imber, and Smith, JJ., dissent.

Tom Glaze, Justice,

dissenting. I respectfully dissent. As the majority points out, this court reversed the chancellor in City of Dover v A.G. Barton, 337 Ark. 186, 987 S.W.2d 705 (1999), where we held the chancellor erred by relying on Act 1336 of 1997 to enjoin Dover from continuing construction of its sewage-treatment facility. Basically, this court held that Dover’s construction commenced prior to the Act’s effective date, and, for that reason, was inapplicable. The court further opined in obiter dictum that the Arkansas Pollution Control and Ecology Commission was the proper forum for hearing any claim Barton might have under Act 1336, and the chancery court was not the appropriate jurisdiction to hear an Act 1336 claim.

After making the foregoing holding and observation, this court’s earlier opinion recognized the City of Russellville’s alternative argument to affirm the chancellor’s decision to enjoin Dover, namely, that Dover’s location of the sewage treatment facility violated ordinances of the City of Russellville, in that part of the facility is located in an area subject to Russellville’s jurisdiction, and that Dover did not obtain a large-scale development permit from Russellville. Dover contested Russellville’s factual and legal contentions; however, our court declined to consider this legal issue because the chancellor made no ruling on it, and thus it was not resolved. In fact, the chancellor issued his decree enjoining Dover based solely on Russellville’s Act 1336 claim, finding it unnecessary to reach all other issues. In sum, our court ruled that, because material fact issues remained unresolved, summary judgment was not proper on the other issues. We then specifically reversed the chancellor’s decision based on Russellville’s Act 1336 claim and remanded the case for an order consistent with its opinion.

On June 9, 1999, the chancellor on remand held the previously issued injunction reversed by this court on appeal would remain in effect until he could hear the remaining issues for relief that he had never ruled on. This included Russellville’s claim for relief based upon its ordinances. The chancellor gave Russellville until June 16, 1999, to respond to Dover’s motion for summary judgment filed on June 1, 1999. Other matters filed on remand included the following:

(1) Dover’s motion for assessment of damages filed on June 30, 1999.
(2) Order denying Dover’s motion to lift injunction and establish filing deadlines.
(3) Russellville’s motion for summary judgment filed on July 14, 1999.
(4) Russellville’s amended intervention complaint.
(5) Dover’s September 1, 1999, motion to require payment of expert witness fees.

On September 13, 1999, the chancellor granted Russellville’s motion for summary judgment and denied Dover’s summary judgment motion. The chancellor enjoined Dover based on its findings that Dover violated Russellville’s Land Subdivision and Development Code — the issue the chancellor had previously declined to reach in his first decision.

As I read the record, the parties and the chancellor proceeded on remand essentially on the record established at the first trial and appeal of this matter, but the chancellor utilized it and the subsequent pleadings listed above to resolve the issue he had not previously addressed or reached — whether Dover had violated Russell-ville’s Land Subdivision and Development Code and therefore should be enjoined from doing so. Based on the record and affidavits, the chancellor found that the area of Dover’s proposed treatment plant is served by Russellville water or sewer and is therefore subject to the Russellville Code. The chancellor further found that part of the Dover development tract is within one mile of Russell-ville, and the remainder of the tract is contiguous to that portion within one mile. He also found Russellville had advised Dover that any development in the proposed area must receive a large-scale development permit under the Code, but Dover chose not to comply. The chancellor also found Dover did not controvert these findings, and therefore entered a summary judgment on September 13, 1999, in Russellville’s favor, enjoining Dover from proceeding with its construction.

Dover appealed the September 13 order, raising eight points for reversal. None has to do with whether the chancellor complied with this court’s earlier mandate filed on May 14, 1999. Instead, Dover’s points address the merits of this case, charging the chancellor erred:

(1) In granting summary judgment to the City of Russellville in that it lacks authority to regulate lands lying more than one mile outside its city limits;
(2) In granting summary judgment to the City of Russellville based upon the fact that the City of Russellville provides water or sewer services to land belonging to the City of Dover that lie more than one mile outside the city limits of the City of Russellville;
(3) In failing to set aside the summary judgment, in that the City of Dover was not served with a copy of the motion and brief for summary judgment filed by the City of Russellville on July 14, 1999;
(4) In reinstating the injunction against the City of Dover after this court’s decision of April 8, 1999, prior to conducting another hearing and taking additional evidence;
(5) In failing to rule on the City of Dover’s motion to recuse;
(6) In failing to rule on the City of Dover’s motion for assessment of damages;
(7) In failing to rule on the City of Dover’s request that the appellees be required to pay expert witness fees; and
(8) The court lacked jurisdiction to rule upon the nuisance claims filed by the City of Russellville.

Dover, in its fourth point, does argue that on remand the chancellor erred by reinstating its earlier injunction without taking any additional evidence. It claims in this appeal that the chancellor lacked the authority to issue a new injunction because the grounds (Act 1336) upon which the chancellor’s prior injunction was based had been reversed and nullified. Russellville responds that Dover offers no citation of authority in support of its contention, and, in addition, the injunction issued was not new, but was only continuing its earlier injunction so as to preserve the status quo pending final resolution of the case. In other words, the issue is not one merely questioning whether the chancellor complied with this court’s mandate, but rather, whether the chancellor otherwise erred in how it tried and decided this case on the legal theory that Dover’s actions had violated Russellville’s Land Subdivision and Development Code and such violation warranted injunctive relief.

In conclusion, the majority opinion is reversing and remanding this case to allow the parties to address any remaining issues; however, it is unclear to me as to how the parties and the chancellor should proceed on remand, especially with this court not answering the questions presented in this appeal. For the reasons above, I would proceed on the merits and decide the eight issues raised by Dover and argued by the parties.

Imber and Smith, JJ., join.

       We note that based on the language in Ark. Code Ann. § 14-56-413, Dover argues for reversal that Russellville, through its Land Subdivision and Development Code, is attempting to regulate land in excess of its authority. Specifically, Dover argues that “the City of Russellville lacks the power to enact an ordinance which applies to any lands more than one mile outside its limits even if they are contiguous.” While Dover’s point may be well-taken, we decline to rule on this issue because Dover has failed to provide us with a trial court’s ruing on the matter. See, Ross Exploration v. Freedom Energy, Inc., 340 Ark. 74, 8 S.W.3d 511 (2000)(holding that we will not address the merits of an argument where the appellant has failed to obtain a ruling from the trial court).