author: PER CURIAM.

text:
    Anthony STEVENS v. STATE of Arkansas
    CR 00-1338
    39 S.W.3d 758
    Supreme Court of Arkansas
    Opinion delivered March 8, 2001

      Petitioner, pro se.
    No response.

       Judge Johnson was commissioned a Circuit Judge of the Sixth Judicial District on June 5, 2000. He served in that capacity until January 1, 2001. On June 22, 2000, Stevens filed a pro se motion in the trial court seeking appointment of other counsel on the ground that Johnson had assumed the bench. Because the notice of appeal had been filed, the trial court did not have jurisdiction to relieve Johnson and appoint other counsel. Ark. R. App. P.-Crim16; Ark. Sup. Ct. R. 4-3(j)(1). The partial record filed with the instant motion does not reflect that any action was taken on the motion.

   PER CURIAM.

On January 7, 2000, judgment was entered reflecting that Anthony Stevens had been found guilty by a jury of possession of a controlled substance with intent to deliver and sentenced to 600 months’ imprisonment. Stevens was represented at trial by his appointed attorney, Leon Johnson. Mr. Johnson filed a timely notice of appeal on February 1, 2000. The appeal was not perfected, and Stevens now seeks to proceed with a belated appeal of the judgment. As the notice of appeal was timely filed, we treat the motion as a motion for rule on clerk to lodge the appeal rather than a motion for belated appeal. See Johnson v. State, 342 Ark. 709, 30 S.W.3d 715 ( 2000); see also Muhammed v. State, 330 Ark. 759, 957 S.W.2d 692 (1997).

Petitioner Stevens has appended to his motion a series of letters to him from Mr. Johnson. In the first letter dated April 4, 2000, Johnson advised Stevens that he had obtained an extension of time to lodge the record until July 2000. On September 7, 2000, Johnson gave Stevens an “update” on the appeal, explaining that he was no longer able to practice law because he had been appointed to the bench and that any motion Johnson filed to obtain appointment of new counsel for Stevens could be construed as practicing law. Johnson stated further that he had expected that the Public Defender Commission would take over the case and assign new counsel to the appeal but the Commission had instead asked him to “file something.” Because Johnson did not agree that he could file a pleading, he suggested that Stevens file a pro se “motion to file a belated brief’ and a motion for appointment of counsel in the court of appeals. He further informed Stevens that he had the appeal record and suggested that Stevens forward his pleadings to someone and have that person obtain the record from him. On October 15, 2000, Johnson again wrote to Stevens advising him to file a motion for belated appeal and motion for counsel as soon as possible.

It is apparent that Mr. Johnson misunderstood his duty to appellant. Canon 4G of the Arkansas Code of Judicial Conduct prohibits a judge from the practice of law after he or she has assumed the bench. See Judicial Discipline v. Thompson, 341 Ark. 253, 16 S.W.3d 212 (2000). The mere filing a motion to be relieved on the basis that one has been appointed to the bench is not prohibited by Canon 4G, but is rather a means of assuring that the appellant is not abandoned without representation. It is well settled that under no circumstances may an attorney who has not been relieved by the court abandon an appeal. Johnson, supra; Langston v. State, 341 Ark. 739, 19 S.W.3d 619 (2000); Ragsdale v. State, 341 Ark. 744, 19 S.W.3d 622 (2000); Mallett v. State, 330 Ark. 428, 954 S.W.2d 247 (1997); Muhammad, supra; James v. State, 329 Ark. 58, 945 S.W.2d 941 (1997); Jackson v. State, 325 Ark. 27, 923 S.W.2d 280 (1996).

Rule 16 of the Rules of Appellate Procedure — Criminal provides in pertinent part that trial counsel, whether retained or court-appointed, shall continue to represent a convicted defendant throughout any appeal, unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause. Johnson filed a notice of appeal and was thus obligated to represent appellant Stevens until such time as he was permitted by the appellate court to withdraw pursuant to Ark. Sup. Ct. R. 4-3(j)(l). Once Johnson was appointed to the bench, it was incumbent on him to lodge at least a partial record of the lower court proceedings in the appellate court with a motion asking to be relieved. His appointment to the bench would clearly have constituted good cause under Rule 16 for Johnson to be permitted by the appellate court to withdraw. Johnson did not act to protect appellant’s right to appeal, and thus appellant was left without the effective appellate representation guaranteed to a convicted criminal defendant by the Sixth Amendment. See Pennsylvania v. Finley, 481 U.S. 551 (1987). The direct appeal of a conviction is a matter of right, and a State cannot penalize a criminal defendant by declining to consider his or her first appeal when counsel has failed to follow mandatory appellate rules. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994); see Evitts v. Lucey, 469 U.S. 387 (1985).

Because Mr. Johnson is no longer on the bench, he is eligible to continue as attorney-of-record for the appeal. Our clerk is directed to lodge the appeal. Counsel is directed to file the remainder of the record, which he indicated in correspondence with appellant was ready to be lodged, within thirty days. Upon the filing of the complete appeal record, a briefing schedule will be set.

Motion granted.


source: Caselaw Access Project

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

license: Public Domain

text:
    Overtus BRINKER v. FORREST CITY SCHOOL DISTRICT NO. 7; Virginia L. Roland; and Southern Farm Bureau Casualty Insurance Company
    00-56
    40 S.W.3d 265
    Supreme Court of Arkansas
    Opinion delivered March 15, 2001

      Easley, Hicky & Hudson, by: B. Michael Easley and Preston G. Hicky, for appellant.

      Butler, Hicky, Long & Harris, by: Phil Hicky, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

This appeal involves underinsured-motorist (UIM) benefits. The crux of the case is whether the trial court erred in severing appellant’s cause of action against Southern Farm Bureau Casualty Insurance Company (Southern Farm Bureau) without requiring that Southern Farm Bureau be bound by the fact-finder’s determination of liability and damages. We hold that the trial court did err and, therefore, reverse and remand the case.

A school bus from Forrest City School District No. 7 collided with appellant Overtus Brinker, who indisputably had UIM benefits of $100,000 with Southern Farm Bureau. Appellant sustained serious personal injuries as a result of the accident. He filed suit against the school district, bus driver, and Southern Farm Bureau. Southern Farm Bureau filed a motion to dismiss based on the fact that it was unknown at that time whether appellant was underinsured; in the alternative, Southern Farm Bureau requested that it be severed from the trial against the school district. Southern Farm Bureau refused, in any case, to be bound by any jury verdict that might be rendered in appellant’s case against the school district. The trial court denied Southern Farm Bureau’s motion to dismiss, but severed it from the first trial.

Appellant’s case against the school district went to trial; the suit against the bus driver, Virginia L. Roland, was nonsuited. The district admitted liability, and the jury awarded appellant $100,000. The district paid its limit of $25,000 and received a partial satisfaction of judgment. Appellant made demand on Southern Farm Bureau to pay the remaining $75,000 of his UIM benefits; Southern Farm Bureau refused. Appellant filed an amended complaint; Southern Farm Bureau denied liability, and appellant filed a motion for summary judgment seeking the $75,000 judgment, as well as statutory penalty and attorney’s fees. The trial court denied the motion for summary judgment and ordered a second trial, wherein the jury awarded appellant $65,000.

On appeal, appellant contends that it was .error for the trial court to sever Southern Farm Bureau from the original action without requiring that Southern Farm Bureau be bound by the jury verdict and that it was error to deny his motion for summary judgment. Southern Farm Bureau argues contrary to appellant and contends that appellant’s appeal of the denial of his summary-judgment motion is not appealable.

Appellant asserts the following points on appeal:

1) The trial court erred in severing appellant’s cause of action against Southern Farm Bureau without requiring that Southern Farm Bureau be bound by the fact-finder’s determination of liability and damages;
2) The trial court erred in denying appellant’s motion for summary judgment following trial of the underlying tort case.

I. Appealability

Southern Farm Bureau contends that the denial of a motion for summary judgment is not appealable and therefore this point should be affirmed. It is true that, as a general rule, the denial of a motion for summary judgment is neither reviewable nor appealable; however, on the issue of appealability, we do not view this matter as an appeal from the denial of a motion for summary judgment. After appellant’s summary-judgment motion was denied, appellant proceeded to retry his case against the appellee insurer, and a judgment was later filed. The appellant then filed the instant appeal, asserting that he was appealing from the court’s order denying his motion for summary judgment. It is clear, however, that the appellant is really appealing from the judgment rendered against him in the second trial and is arguing that the trial court erred in refusing to grant appellant judgment on the underinsured insurance coverage without requiring him to relitigate the tort issues of damages and liability against the appellee. As such, we hold that this is not an appeal from the denial of a summary judgment, but is rather a second judgment appeal.

II. Severing of Southern Farm Bureau

As stated, appellant filed suit against the school district, bus driver, and Southern Farm Bureau. Southern Farm Bureau filed a motion to dismiss based on the fact that it was unknown at that time whether appellant was underinsured; in the alternative, Southern Farm Bureau requested that it be severed from the trial against the school district. Either way, pursuant to the consent clause contained in the insurance agreement between Southern Farm Bureau and appellant, Southern Farm Bureau refused to be bound by any jury verdict that might be rendered in appellant’s case against the school district. The trial court denied Southern Farm Bureau’s motion to dismiss, but severed it from trial, refusing however to bind Southern Farm Bureau to any judgment appellant might obtain at trial from the school district.

The insurance policy appellant held with Southern Farm Bureau contained the following language:

We will pay under this coverage only after the limits of liability under any applicable bodily injury, liability, bonds or policies have been exhausted by payment of judgments or settlements. . . .
... We will not be joined as a party Defendant with the underinsured motorist. We shall not be bound by any setdement a covered person makes with or judgment a covered person obtains against an under-insured motorist unless we give our written consent to be bound by such action.

(Emphasis added.)

Appellant contends that because of the rulings of the trial court, severing Southern Farm Bureau without requiring it to be bound by the judgment in the trial against the underinsured motorist, and by denying appellant’s motion for summary judgment prior to the second trial, appellant has unfairly had to undergo two jury trials on the exact same issues. Appellant asserts that this violates the issue preclusion facet of the doctrine of res judicata. We agree.

Issue preclusion precludes further litigation in connection with a certain issue and is limited to those matters previously at issue that were directly and necessarily adjudicated. Linn v. NationsBank, 341 Ark. 57, 14 S.W.3d 500 (2000); In Re: Estate of Goston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995). In this case, liability was admitted in the first trial by the school district, and the issue of damages was adjudicated. Southern Farm Bureau contends that because it was severed from the first trial, it did not have a fair and full opportunity to litigate the issues in question until the second trial. We disagree.

Southern Farm Bureau points to and relies upon the case of Ross v. State Farm Mut. Auto Ins., 41 Ark. App. 75, 848 S.W.2d 948 (1993), the facts of which are strikingly similar to the facts in this case. In Ross, the carrier was not made a party to the action. The Court of Appeals held therein that where the appellant’s original action named only the insured as a party, and the insurance policy in question contained a consent clause, the trial court was correct when it required the appellant to relitigate her case against the appellee company in a subsequent trial; in other words, the appellant could not hold the insurer liable, without its consent, upon a judgment obtained in an action in which the insurer was not a party.

We fail to find the Ross case persuasive for Southern Farm Bureau in this case. The important difference between this case and the Ross case is that in this case the insurer was named as a party. Southern Farm Bureau claims that appellant’s attempt to name Southern Farm Bureau as a party violates the terms of his policy because the insurance policy itself, to which appellant agreed, states that Southern Farm Bureau “will not be joined as a party Defendant with the underinsured motorist.” We find Southern Farm Bureau’s argument unpersuasive.

Although the trial court granted Southern Farm Bureau’s alternative motion to be severed from the trial against the underinsured motorist, it refused to grant Southern Farm Bureau’s motion to dismiss. Therefore, by being severed from the other parties involved in the suit, rather than being dismissed as a party, Southern Farm Bureau remained a party to the action. By naming Southern Farm Bureau as a party to begin with, appellant clearly overcame the Ross hurdle. Southern Farm Bureau had just as much opportunity to litigate the issue in question as any other party to the action; however, it asked to be severed. Requiring the appellant to try his case twice is blatantly unfair and clearly barred by res judicata. Any missed opportunity to litigate the issues was the fault of Southern Farm Bureau itself; a party may not seek a second trial only after disliking the outcome of the first.

In short, we agree with appellant that the trial court erred in severing Southern Farm Bureau without requiring that it be bound by the verdict in the original trial. We therefore reverse and remand the case for further action consistent with this opinion.

Reversed and remanded.

       Southern Farm Bureau also relies upon the case of MFA Mutual Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S.W.2d 252 (1968), which is distinguishable. In Bradshaw, the insured took a voluntary nonsuit against the carrier; thus, as in Ross, the carrier was not a party to the action and, therefore, was not bound by the default judgment against the uninsured motorist.


author: JIM Hannah, Justice.

text:
    Larry Cedi MARTIN v. EQUITABLE LIFE ASSURANCE SOCIETY of the United States
    00-1051
    40 S.W.3d 733
    Supreme Court of Arkansas
    Opinion delivered March 15, 2001

      Streetman & Meeks, by: Thomas S. Streetman, for appellant.

      Huckaby Scott & Dukes, P.C., by: James C. Huckabay, Jr., Carter H. Dukes, and M. Brent Yarborough, for appellee.
   JIM Hannah, Justice.

Larry Cecil Martin filed a petition for declaratory judgment in Ashley County Chancery Court for a declaratory judgment that the life insurance policy he purchased in 1984 contained the same benefits the insurance agent promised him in 1984. The trial court granted a motion to dismiss under Ark. R. Civ. P. 12(b)(6) finding that the five-year statute of limitations in Ark. Code Ann. § 16-56-111 (Supp. 1999) was applicable. Martin alleges the trial court erred in applying a statute of limitations to an Ark. R. Civ. P. 12(b)(6) motion to dismiss. We hold the trial court did not commit error and affirm.

Facts

In October of 1984, Martin discussed and purchased life insurance through Dan Pevy, agent for The Equitable Life Assurance Society of the United States (“Equitable”). Martin alleges representations were made in 1984 by Pevy that he was purchasing whole-life insurance that would appreciate in value and provide coverage to age sixty-five. Martin further alleges the application made no mention of the insurance being term insurance rather than whole fife, and that he was told the insurance policy would have a cash surrender value of $24,126.00 when he turned age sixty-five. The policy-information page of the life-insurance policy that Martin received stated the policy was term-life insurance and that it would terminate in October 1994. Over the years, Martin paid the premiums. He renewed the policy and continued to pay premiums into 1999.

However, in August 1999, Martin received notice his insurance would terminate on October 31, 1999. Martin asserts it was only then that he realized he had been misled. He asserts the misrepresentations were material and that he relied upon them to his detriment, and asked for a declaratory judgment that Equitable is obligated to provide insurance coverage to him on the terms represented by Pevy. Martin filed for declaratory judgment while the policy was still in effect.

Martin finally asserts he is of an age and in a condition of health that makes it impossible to now obtain the insurance he thought he was buying in 1984. Martin seeks a declaratory judgment that Equitable is obligated to provide the insurance that was represented to him by Pevy in 1984. He also seeks other relief not relevant here.

The trial court granted a motion to dismiss under Ark. R. Civ. P. 12(b)(6) finding that the five-year statute of limitations in Ark. Code Ann. § 16-56-111 was applicable.

Standard of Review

In reviewing the trial court’s decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Grine v. Board of Trustees, 338 Ark. 791, 2 S.W.3d 54 (1999). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. However, our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.

Declaratory Judgment

Declaratory judgment was unknown in the common law. It first became available in Arkansas by Act 274 of 1953, which conferred authority on the courts to hear declaratory-relief actions. Travelers Indemnity v. Olive’s Sport. Goods, 297 Ark. 516, 764 S.W.2d 596 (1989). Prior to that time, courts were not authorized to render declaratory judgments. Christy v. Speer, 210 Ark. 756, 197 S.W.2d 466 (1946).

While declaratory judgment is typically used to determine the obligations of the insurer under a policy of insurance, National Security Fire & Casualty Company v. Poskey, 309 Ark. 206, 828 S.W.2d 836 (1992); U.S.F. & G. v. Downs, 230 Ark. 77, 320 S.W.2d 765 (1959), that is not what is sought here. Martin does not seek a declaration of what rights he may have under the policy, but rather seeks to have the policy reformed to conform to representations made to him. Reformation of contract is available where there has been a mistake of one party accompanied by fraud or other inequitable conduct of the other party, and that is sought by an action seeking reformation, not by a proceeding for declaratory judgment. See Continental Cas. Co. v. Didier, 301 Ark. 159, 783 S.W.2d 29 (1990); Jeffers v. American Pioneer Life Ins. Co., 256 Ark. 332, 507 S.W.2d 713 (1974).

A declaratory judgment declares rights, status, and other legal relationships whether or not further relief is or could be claimed. Ark. Code Ann. § 16-111-103(a) (1997). The proceeding is intended to supplement rather than supercede ordinary causes of action. City Of Cabot v. Morgan, 228 Ark. 1084, 312 S.W.2d 333 (1958). Declaratory-judgment procedure is not a proper means of trying a case. Boyett v. Boyett, 269 Ark. 36, 598 S.W.2d 86 (1980); see also, Flashner Med. Partnership v. Marketing Mgt., 189 Ill. App. 3d 45, 545 N.E.2d 177, (1989); Martinez v. Corpus Christi Area Teacher’s Credit Union, 758 S.W.2d 946 (Tex. App. 1988). A declaratory-relief action is not a substitute for an ordinary cause of action. Rather it is dependent on and not available in the absence of a justiciable controversy. Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996).

Here, Martin does not seek a declaration of his rights under the terms of the contract of insurance. The prayer in his petition makes no reference whatever to the terms of the existing policy, but rather seeks only reformation of the policy to provide the benefits he alleges he was promised. In essence, he seeks a declaratory judgment that a misrepresentation of the insurance contract terms was made in 1984 and that as a consequence of that misrepresentation, he is entided to have the contract of insurance reformed to conform with the representations made to him at that time. Martin’s action, whether founded in either tort or contract, may not be decided by a declaratory judgment.

Even though Martin erred in using the declaratory-judgment procedures, his case will still be reviewed. The declaratory-judgment statutes give courts of record the power to declare rights, status, and other legal relations within their respective jurisdictions. Travelers Indemnity v. Olive’s Sporting Goods, 297 Ark. 516, 764 S.W.2d 596 (1989). The statutes do not confer subject-matter jurisdiction. Bryant v. Picado, 338 Ark. 227, 996 S.W.2d 17 (1999); U.H.S. v. Charter Hospital, 297 Ark. 8, 759 S.W.2d 204 (1988). Thus, declaratory judgment is procedural, not jurisdictional. Although Martin erred in pleading this case as seeking declaratory judgment, the trial court treated this matter as if it were a motion to dismiss under Ark. R. Civ. P.12(b)(6) in an ordinary case, and it will be reviewed here on that basis.

Statute of Limitations

Martin argues the chancery court erred in finding the five-year statute of limitations applied to commencement of a proceeding for declaratory judgment under Ark. R. Civ. P 57 and Ark. Code Ann. §§ 16-111-101 — 16-111-111 (1987). A review of the chancellor’s order and decision does not reveal such a finding. Rather, it appears the chancellor simply considered the facts alleged by Martin and found five years to be the longest possible limitations period that would be applicable under either a tort or contract cause of action Martin might pursue. Martin has mistaken declaratory judgment for a cause of action. Statutes of limitation control when a cause of action may be pursued. McEntire v. Malloy, 288 Ark. 582, 707 S.W.2d 773 (1986).

Martin’s petition is couched in terms of misrepresentations, and it appears his complaint is primarily that the policy he purchased was misrepresented to him by Pevy in 1984. To determine the cause of action, we look to the facts alleged in the complaint to ascertain the area of the law in which they sound. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). Misrepresentation is an element of fraud and the three-year statute of limitations set out in Ark. Code Ann. § 16-56-105 (1987) applies. Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994). Even if a contract action were stated, the limitations period is five years under Ark. Code Ann. § 16-56-111. In either case, Martin’s causes of action accrued in 1984, long beyond either statute unless they were tolled.

Motion to Dismiss

The trial court granted a motion to dismiss under Ark. R. Civ. P. 12(b)(6) finding that the five-year statute of limitations in Ark. Code Ann. § 16-56-111 was applicable. Martin argues that statutes of limitations can not be raised or considered by the court on a Rule 12(b)(6) motion to dismiss. Martin is mistaken. Ark. R. Civ. P. 12(b)(6) states as follows:

Rule 12. Defenses and objections — When and how presented — By pleading or motion — Motion for judgment on the pleadings.
* * *
(b) How Presented. Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: ... (6) failure to state facts upon which relief can be granted,

This court reversed a jury verdict in holding that a motion to dismiss based upon a statute of limitations should have been granted. Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). In order to prevail on a motion to dismiss the complaint on the basis of limitations, it must be barred on its face. Id.

The subject policy was purchased in 1984, and Equitable argues the passage of so many years means both the five-year contract and the three-year tort statutes of limitations have long since passed. Conversely, Martin alleges he was not aware he did not receive the policy he believed he purchased until he received notice of its cancellation in 1999. He alleges only then did he realize the policy was not what he thought and that misrepresentation in 1984 tolled the statute of limitations.

Martin attached the insurance policy to the petition. At page three of the insurance policy, it shows it was issued on October 12, 1984. On this same page is provided:

PLAN OF INSURANCE: TERM INSURANCE
COVERAGE PERIOD: ENDS ON October 2, 1994

The insurance policy may be considered by the trial court on a motion to dismiss in this case. This policy reflecting a contract of insurance is a written instrument, and Ark. R. Civ. P. 10(c) provides that a copy of a written instrument which is an exhibit to a pleading is a part thereof for all purposes. Arkansas Appliance Dist. Co. v. Tandy Electronics, Inc. 292 Ark. 482, 730 S.W.2d 899 (1987). Thus, the policy may be considered in a motion to dismiss as if it were part of the complaint, or in this case, the petition. The petition shows that in October 1984, Martin had the policy in his possession, and therein he was plainly told he had purchased term insurance that would terminate in 1994. It is the duty of a policy holder to educate himself concerning matters of insurance coverage. Howell v. Bullock, 297 Ark. 552, 764 S.W.2d 422 (1989); Stokes v. Harrell, 289 Ark. 179, 711 S.W.2d 755 (1986). In Howell, the court noted the policy holder had never examined the policy. Any cause of action would have accrued in 1984 at the latest.

Martin’s petition does not allege any concealment or anything that would toll the statute of limitations. The trial court held that “when considering the Plaintiffs petition on its face, including attachments, the Court finds any cause of action would have arisen on the date of the policy.” The trial court is correct. On the face of the petition, it is shown that the statute of limitations bars the action, whether it is based in tort or contract.

Affirmed.


text:
    Mitchell SKINNER v. STATE of Arkansas
    CR 00-1361
    40 S.W.3d 269
    Supreme Court of Arkansas
    Opinion delivered March 15, 2001

      Petitioner, pro se.
    No response.
   PER CURIAM.

In 1996, Mitchell Skinner pleaded guilty to capital felony murder and was sentenced to life imprisonment without parole. He subsequently filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37 challenging the judgment. The petition was denied, and we affirmed the order. Skinner v. State, CR 96-1284 (February 5, 1998).

In 2000, Skinner filed a pro se petition for writ of error coram nobis in the trial court. The petition was denied, and petitioner Skinner filed a notice of appeal from the order rather than a petition for writ of certiorari in this court, which is the proper avenue to seek review of the denial of a coram nobis action. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997), citing Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Petitioner took no further action in this court, until he was notified on October 5, 2000, that the circuit clerk had forwarded the record to this court in response to the notice of appeal.

Now before us is petitioner’s motion for rule on clerk seeking to be permitted to proceed with a review of the court’s decision to deny the comm nobis petition. As noted earlier, petitioner did not file a petition for writ of certiorari in this court as dictated by the prevailing rules of procedure.

We have held that when a review is permitted by certiorari rather than appeal, the time limitations applicable to an appeal will be adopted by analogy. Fulks v. Walker, 224 Ark. 639, 275 S.W.2d 873 (1955). Accordingly, a petition for writ of certiorari should be filed here within thirty days of the date of the order denying a petition for writ of error comm nobis, just as an appellant is required by Ark. App. P. — Crim. 2(a)(4) to file a notice of appeal in the trial court within thirty days of the date an order is entered denying postconviction relief. In the interest of judicial economy, therefore, we will consider the motion for rule on clerk as if petitioner were seeking to file a belated petition for writ of certiorari here. Finding no good cause for his failure to proceed in accordance with the prevailing rules of procedure, we deny relief.

Petitioner Skinner contends that he should be permitted to proceed on the grounds that: (1) a letter to him from our Criminal Justice Coordinator dated August 28, 2000, informing him that the record had not yet been lodged here, did not reach him until September 26, 2000, thus delaying his contacting the circuit clerk to learn the status of the appeal; (2) prison officials held the letter to him from the Criminal Justice Coordinator for a month before forwarding it to him; and (3) he had been in punitive isolation and did not have access to a law library.

A petitioner has the right to seek review of a ruling on a petition for postconviction relief. See Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). With that right, however, goes the responsibility to abide by the rules of procedure. If a petitioner fails to follow procedural rules, the burden is on the petitioner to make a showing of good cause for the failure to comply with proper procedure. See Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). The fact that a pétitioner is proceeding pro se or is incarcerated does not in itself constitute good cause for the failure to conform to procedure. See Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); see also Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990).

It is not the responsibility of the circuit clerk or anyone other than the party seeking review to perfect the request for review, whether it be by appeal or certiorari. See Sullivan, supra. Petitioner did not pursue the procedural course available to him and has not established that there was good cause for his failure to act.

Motion denied.


text:
    James Andrew TAYLOR v. STATE of Arkansas
    CR 01-215
    39 S.W.3d 766
    Supreme Court of Arkansas
    Opinion delivered March 15, 2001

      David Mark Gunter, for appellant.
    No response.
   PER CURIAM.

Petitioner, James Andrew Taylor, by his attorney, David Mark Gunter, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion for rule on the clerk is, therefore, granted. A copy of this per curiam will be forwarded to the Committee on Professional Conduct.


author: TOM GLAZE, Justice.

text:
    AT&T COMMUNICATIONS of the SOUTHWEST, INC. v. ARKANSAS PUBLIC SERVICE COMMISSION
    99-860
    40 S.W.3d 273
    Supreme Court of Arkansas
    Opinion delivered March 22, 2001
    [Petition for rehearing denied April 26, 2001.]

      Wright, Lindsey & Jennings LLP, by: N.M. Norton and J. Mark Davis, for appellant.

      Paul J. Ward, for appellee Arkansas Public Service Commission.

      Timothy S. Pickering, for appellee Southwestern Bell Telephone Company.

      Chisenhall, Nestrud &Julian, P.A., by: Lawrence E. Chisenhall, Jr., and Michael T. Jackson, for appellees Arkansas Telephone Company, Inc.; Century Telephone of Arkansas, Inc.; Century Telephone of Mountain Home, Inc.; Century Telephone of Redfield, Inc.; Century Telephone of South Arkansas, Inc.; Cleveland County Telephone Company; Decatur Telephone Company; Mountain View Telephone Company; Prairie Grove Telephone Company; E. Ritter Telephone Company; South Arkansas Telephone Company; TriCounty Telephone Company; Yelcot Telephone Company; Yell County Telephone Company.

      Gill Law Firm, by: WW Elrod II, for appellees/cross-appellants Madison County Telephone Company, Inc., and Scott County Telephone Company, Inc.

      George Hopkins, and Williams & Anderson LLP, by: Leon Holmes, for appellees/cross-appellants Central Arkansas Telephone Cooperative, Inc.; Lavaca Telephone Company, Inc.; Magazine Telephone Company, Inc.; Northern Arkansas Telephone Company, Inc.; Southwest Arkansas Telephone Company, Inc.; Walnut Hill Telephone Company, Inc.

      Stephen B. Rowell, and Friday, Eldredge & Clark, by: Kevin A. Crass, for cross-appellees Alltel Arkansas, Inc.; Alltel Mobile Communications, Inc.; and Alltel Communications, Inc.
   TOM GLAZE, Justice.

AT&T Communications of the Southwest, Inc., brings this appeal from Order No. 12 of the Arkansas Public Service Commission (the PSC or the Commission), in which the Commission made certain determinations with respect to the Arkansas Universal Service Fund (“AUSF”). AT&T initially appealed to the court of appeals, which upheld the Commission’s order. See AT&T Communications of the S. W., Inc. v. Arkansas Pub. Serv. Comm’n, 67 Ark. App. 177, 994 S.W.2d 494 (1999). AT&T now appeals to this court, arguing that the Commission erred in three respects: (1) Order No. 12 is unlawful, because it is based upon Ark. Code Ann. §§ 23-17-404(e)(4) (A) and (B) (Supp. 1999), which are inconsistent with Ark. Const, art. 2, § 19 and amend. 14; (2) § 23-17-404 is preempted by federal law; and (3) Order No. 12 is not supported by substantial evidence.

Because this case deals with the complexities of telecommunications deregulation, some background information is necessary to give the reader an understanding of the issues. During the 1997 session of the General Assembly, the legislature passed Act 77, the “Telecommunications Regulatory Reform Act of 1997” (hereinafter the Act or Act 77). Ark. Code Ann. § 23-17-401 (Supp. 1999). This statute was enacted in order to bring the telecommunications industry in Arkansas in line with the Federal Telecommunications Act of 1996 (FTA or the Federal Act). The Federal Act essentially provided for the deregulation of the telecommunications industry.

In passing Act 77, the General Assembly stated that its intent was to “[p]rovide for a system of regulation of telecommunications services, consistent with the Federal Act, that assists in implementing the national policy of opening the telecommunications market to competition on fair and equal terms, modifies outdated regulation, eliminates unnecessary regulation, and preserves and advances universal service.” Ark. Code Ann. § 23-17-402(1) (Supp. 1999). Further, the legislature asserted that Act 77 was intended to “[r]ecognize that a telecommunications provider that serves high-cost rural areas or exchanges faces unique circumstances that require special consideration and funding to assist in preserving and promoting universal service.” Ark. Code Ann. § 23-17-402(2) (Supp. 1999)

Act 77 established the AUSF “in order to promote and assure the availability of universal service at rates that are reasonable and affordable, and to provide for reasonably comparable services and rates between rural and urban areas.” Ark. Code Ann § 23-17-404(a)(1) (Supp. 1999). To further that goal, the Act sets forth specific directives for the payment of subsidies from the AUSF to those rural carriers. These requirements include replacing any revenues that a rural carrier loses due to the conversion of the implicit federal universal service funding mechanisms to an explicit universal service funding mechanism as required in 47 U.S.C. § 254. Any rural telephone company that, as a result of changes “caused by new or existing federal or state regulatory statutory directives, experiences a change in intrastate or interstate switched access service revenues, or in net revenues received from the intrastate Carrier Common Line Pool, interstate access charge pools, or the Arkansas IntraLATA Toll Pool [the AITP or Toll Pool], shall be allowed to recover the reductions” from the AUSF. § 23-17-404(e)(4)(B). Thus, the AUSF established pursuant to Act 77 ensures that qualifying Incumbent Local Exchange Carriers (ILECs) have a continuing source of subsidies to support their operations.

When an ILEC applies for funding through the AUSF, the ILEC submits its request to the AUSF Administrator. Pursuant to § 23-17-404(e)(4)(C), the Administrator then “verifies] the calculations and accuracy of the net revenue reductions, based on a comparison between (i) [t]he total annual revenues received from these sources [i.e., the intrastate Carrier Common Line Pool, interstate access charge pools, or the AITP] by the eligible telecommunications carrier during the most recent twelve months preceding the required regulatory or statutory changes; and (ii) [t]he reasonable projection of total test-year annual revenue after the changes are implemented.”

As a result of the passage of Act 77, twenty-one ILECs (denominated the Requesting ILECs, or the appellees here) sent requests to the AUSF Administrator for reimbursements from the fund. On September 3, 1997, the PSC issued Order No. 9, which, using data from the year ending December 31, 1996, adopted an initial AUSF funding level of $6.95 million on an annual basis based upon the recommendation of the ILECs. Order No. 9 further reflected that the figure was “overstated, [was] based upon an unsubstantiated ‘uncertainty’ regarding LEC to LEC access charges, and [was] unverified.” Nevertheless, the figure was adopted by the PSC primarily due to the time constraints imposed by the federal law. The $6.95 million figure was revised on December 8, 1997, when the AUSF Administrator filed a report in Docket No. 97-393-A, reflecting the Administrator’s determination that the Requesting ILECs should receive $9.7 million on an annual basis from the AUSF.

AT&T, Alltel, MCI Telecommunications Co., and Sprint Telecommunications Co. filed motions for reconsideration of the Administrator’s determination on January 7, 1998. The PSC scheduled a public hearing on these motions and requests for reconsideration for January 21, 1998. After the hearing, the Commission entered Order No. 12 on February 4, 1998. Order No. 12 first discussed the history and purpose of Act 77, and then noted that “the election of alternative regulation pursuant to Act 77 by the majority of ILECs changed the AITP from a mandatory pool to a voluntary pool. . . . The ILECs continued to voluntarily maintain uniform toll rates and voluntarily continued participation in the AITP until October 1, 1997, when the larger ILECs withdrew from the AITP. The losses from the AITP for which the Requesting ILECs sought reimbursement were occasioned by the voluntary dissolution of the AITP on October 1, 1997.” Addressing AT&T’s concerns that a number of the ILECs had not provided sufficient documentation, Order No. 12 concluded by directing several of the Requesting ILECs to submit additional information to the AUSF Administrator or to revise their requests for reimbursement for certain expenses.

AT&T filed an application for rehearing of the Commission’s order on March 6, requesting the Commission to reconsider certain parts of Order No. 12. Specifically, AT&T took issue with the part of the order that found that Act 77 led to the dissolution of the AITP; AT&T also submitted that the portions of Arkansas’s law dealing with revenue losses occasioned by Federal Communication Commission (FCC) changes in intrastate access charges were in conflict with, and tbus preempted by, 47 U.S.C. § 254. The Company additionally complained that the AUSF Administrator failed to comply with the statutory requirement that it verify the revenue reduction calculations. Finally, the application summarily noted that AT&T challenged the constitutionality of “the entire AUSF regime.”

On appeal, AT&T first raises the question of the constitutionality of Ark. Code Ann. § 23-17-404. AT&T argues that §§ 23-17-404(e)(4)(A) and (B) create a perpetuity in violation of Ark. Const, art. 2, § 19, and that these statutes also constitute local or special legislation in violation of Ark. Const, amend. 14. The Commission rejected AT&T’s constitutional arguments that were raised in a limited fashion in that company’s post-hearing brief. In disposing of this issue, the Commission wrote that “[w]ere [we] to find this section of Act 77 to be in violation of the State Constitution and grant the relief requested by [AT&T], it would have the effect of nullifying an entitlement program created by the General Assembly to subsidize the operations of the ILECs. This exceeds the scope of the Commission’s jurisdiction.”

The first question this 'court must address is whether or not AT&T preserved these constitutional questions for review. In AT&T’s response to the motions for reconsideration filed by Alltel and Southwestern Bell, AT&T merely asserted that “[t]he potential for conflict of a constitutional kind from this arrangement is obvious, but it may not be necessary to reach that issue.” Further, AT&T stated that “[t]here is also a problem under the Arkansas Constitution, which prohibits the creation of ‘perpetuities and monopolies.’ . . . Act 77 appears to create a perpetual right to a certain amount of money in certain corporations, funded by what amounts to a general levy on all telecommunications service subscribers. As such it represents exactly what is prohibited by art. 2, § 19 [of the Arkansas Constitution]. In addition, this unique privilege conferred upon certain corporations by Act 77 may also run afoul of art. 2, § 17 and Amendment 14 of the State Constitution as special and preferential legislation.” Similar assertions were stated in AT&T’s post-hearing brief. Moreover, in its application for rehearing of Order No. 12, AT&T “renewed its claim” that the AUSF violated these constitutional provisions.

Our court has addressed the question of whether an administrative agency has the authority to declare a statute unconstitutional. In Lincoln v. Arkansas Public Service Commission, 313 Ark. 295, 854 S.W.2d 330 (1993), we held that to allow the Public. Service Commission to declare unconstitutional a statute that it was required to enforce would violate the separation of powers doctrine. However, this does not mean that a constitutional issue should not be raised and developed at the administrative level.

This precise question has been considered in the context of other administrative agencies, such as the Workers’ Compensation Commission. In Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982), the court of appeals held that questions of constitutional magnitude must be addressed at the administrative agency level before such questions will be considered preserved for appeal. The court wrote as follows:

Until now, this court has not been asked whether constitutional questions must first be presented at the Commission level. The general rule is that the constitutionality of a statute will not be considered if raised for the first time on appeal. See e. g., Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980). This rule has also been followed by appellate courts in appeals from workers’ compensation commissions and other administrative agencies. E.g., Lewis v. Anaconda Co., 543 P.2d 1339 (Mont. 1975); Benson v. North Dakota Workmen’s Compensation Bureau, 250 N.W.2d 249 (N.D. 1977); and Unemployment Compensation Department v. Hunt, 17 Wash. 2d 228, 135 P.2d 89 (1943); see also 3 A. Larson, The Law of Workmen’s Compensation, 78.12 (1976 & July, 1982 Supp.).
Even though the Commission may not have the authority to declare statutes unconstitutional, we believe such issues should first be raised at the Administrative Law Judge or Commission level. Constitutional questions often require an exhaustive analysis which is best accomplished by an adversary proceeding. Obviously this can be done only at the hearing level. Requiring these constitutional issues to be considered by the Commission, we can be assured that such issues will be thoroughly developed before we are asked to rule on a statute’s validity.

Hamilton, 6 Ark. App. at 335.

Subsequent cases have approved this reasoning. See, e.g., McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999); Arkansas Health Servs. Agency v. Desiderata, Inc., 331 Ark. 144, 958 S.W.2d 7 (1998); Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991). Consistent with the case law above, the General Assembly has provided the specific procedure for review of a Commission order. Among other things, § 23-3-423 provides as follows:

The review shall not be extended further than to determine whether the Commission’s findings are supported by substantial evidence and whether the Commission had regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or of the State of Arkansas.

§ 23-3-423(c)(4) (emphasis added).

The development of facts before the Commission thus is critical, especially in light of the 1985 amendment to the statutes setting out the procedures for judicial review of Commission decisions. Prior to 1985, orders of the Commission were reviewed in Pulaski County Circuit Court. See Act 231 of 1973, § 3(b). However, with the passage of Act 770 of 1985, Commission decisions became appealable to the court of appeals. See Ark. Code Ann. § 23-2-423(a)(1). Neither this court nor the court of appeals sits as a factfinder. See Bryant v. Arkansas Pub. Serv. Comm’n, 62 Ark. App. 154, 969 S.W.2d 203 (1998). Rather, our role is to determine whether the Commission’s decision and order are lawful and reasonable and whether its findings are fairly and substantially supported by legal evidence. Id. (citing Bryant v. Arkansas Pub. Serv. Comm’n, 45 Ark. App. 56, 871 S.W.2d 414 (1994)). Thus, the Commission is the only forum where a full development of the facts and law can occur; without that complete development of the facts and arguments below, this court cannot fulfill its reviewing function. Raising such constitutional issues before the Commission is significant even when a statute is challenged as unconstitutional on its face, especially since the interpretation given by the agency charged with its execution is highly persuasive. See Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 69 Ark. App. 323, 13 S.W.2d 197 (2000).

As noted above, AT&T provided only a bare reference to what it believed were issues of constitutional magnitude in its motion for reconsideration and its application for rehearing. No attempt was made to flesh out these constitutional arguments before the Commission, either in AT&T’s pleadings or by proffering testimony of witnesses. Nor did AT&T request a ruling or determination by the Commission, or suggest the Commission was wrong in not making a determination. Thus, we hold that AT&T has not sufficiently developed its constitutional arguments to preserve them for this court’s review.

We now proceed to AT&T’s second point on appeal — that § 23-17-404(e)(4)(A) is preempted by § 254(f) of the 1996 Federal Telecommunications Act. That statutory provision, 47 U.S.C. § 254(f), reads as follows:

A State may adopt regulations not inconsistent with the [Federal Communication] Commission’s rules to preserve and advance universal service. Every telecommunications carrier that provides intrastate telecommunications services shall contribute, on an equitable and nondiscriminatory basis, in a manner determined by the State to the preservation and advancement of universal service in the State. A State may adopt regulations to provide for additional definitions and standards to preserve and advance universal service within that State only to the extent that such regulations adopt additional specific, predictable, and sufficient mechanisms to support such definitions or standards that do not rely on or burden Federal universal service support mechanisms.

AT&T argues that the Federal Telecommunications Act imposed a cap on “corporate operations expenses” at 115% of the average for a company’s area because such expenses did not appear to be costs in providing telecommunications services. AT&T alleges that four of the Requesting ILECs were affected by this cap and included the excess federal Corporate Operations Expense in their AUSF reimbursement claims. In addition, AT&T contends that allowance of these claims at the state level frustrated the federal effort to ensure that carriers use universal service support to offer better service to their customers, and would be inconsistent with the FCC’s rules in violation of 47 U.S.C. § 254(f). The appellees respond that this corporate operations expense cap is discretionary, and they also note that the FCC restriction applies only to reimbursement from the federal Universal Service Fund (“USF”), not to reimbursement from state funds.'

We note, however, that AT&T has not pointed out which four Requesting ILECs made such claims to the AUSF Administrator, nor has AT&T demonstrated that the Administrator’s determination was final. Indeed,' assuming that the four ILECs are those named in the Commission’s Order No. 12, that order directs the ILECs to revise their reimbursement requests to account for the FCC’s adjustment of the corporate operations expense that may be recovered from the federal USF; in the event that these ILECs do not submit adjustments, the AUSF Administrator is to revise their reimbursements for them'. There is nothing in the record that would indicate whether or not these revisions have been made. The court of appeals declined to reach the issue, holding that AT&T had not shown that the Commission had allowed these claims, and in the absence of any such showing, any opinion which the court might render on the issue would be purely advisory. See Central Ark. Tel. Coop., Inc. v. Arkansas Pub. Serv. Comm’n, 61 Ark. App. 147, 965 S.W.2d 790 (1998) (where error is alleged, prejudice must be shown). We agree with the court of appeals’ assessment of this issue, and as such, we also decline to address AT&T’s arguments.

AT&T also raised an argument that Act 77 conflicts with 47 U.S.C. § 254(f) because the Act is not imposed on a competitively neutral basis. However, AT&T never raised this argument below. The statute, Ark. Code Ann. § 23-3-423 (c)(2) (Supp. 1999), setting out the procedure for judicial review of PSC orders states that “[n]o objection to any order of the Commission shall be considered by the court of appeals unless the objection shall have been urged before the Commission in the application for rehearing.” While AT&T’s application for rehearing asserted that §§ 23-27-404(e)(4)(A) and -404(e)(4)(B) were in direct conflict with 47 U.S.C. § 254(f) and thus preempted by that statute, the application reflected no argument that the statutes were not imposed on a competitively neutral basis. Therefore, this argument can be rejected without further consideration.

Finally, AT&T urges that Order No. 12 is inconsistent with state statutes, and that there was insufficient evidence to support the Commission’s decision. AT&T raises three arguments under this heading. First, AT&T contends that the Requesting ILECs’ Toll Pool revenue replacement claims do not qualify for reimbursement under § 23-17-404(e)(4)(B). Specifically, AT&T argues that, under Act 77, ILECs qualify for reimbursement only if the revenue reductions are the “result of changes caused by new or existing federal or state regulatory or statutory directives.” AT&T asserts that the ILECs’ losses were not caused by Act 77 because the Act is not a “new” or “existing” directive. In support of this argument, AT&T insists that a “new” directive would be one arising after the passage of Act 77, and an “existing” one would necessarily have to precede the enactment of the Act.

To answer this claim, we look to the basic rule of statutory construction, which is to give effect to the intent of the General Assembly. Ozark Gas Pipeline v. Arkansas Pub. Ser. Comm’n, 342 Ark. 591, 29 S.W.3d 730 (2000). Where the language of the statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Id. However, we will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Burford Distributing, Inc. v. Starr, 341 Ark. 914, 20 S.W.3d 363 (2000).

To adopt AT&T’s construction of the words “new or existing” would lead to an absurd result. The General Assembly intended to ease telecommunications providers into deregulation, and established the AUSF as a mechanism for “promoting] and assuring] the availability of universal service at rates that are reasonable and affordable.” § 23-17-404(a)(1). To accept AT&T’s argument would mean that the General Assembly must have meant for any statute other than Act 77 to trigger revenue reductions that would prompt the Requesting ILECs to seek reimbursement from the AUSE However, AT&T points to no other statute that could have the effect of triggering reimbursement effects, and its argument that Act 77 is neither “new” nor “existing” legislation that would cause a revenue reduction is specious at best.

Next, AT&T contends that Act 77 did not “cause” the Toll Pool reductions. In support of this argument, AT&T claims that it was the voluntary withdrawal of the larger ILECs, such as itself, Southwestern Bell, Alltel, GTE, as well as many of the Requesting ILECs, that caused the Toll Pool losses. Thus, AT&T argues, the dissolution of the Toll Pool was not the result of a state statutory or regulatory directive.

To draw this conclusion, however, requires an attenuated definition of “causation” that this court is not willing to indulge. The effect of Act 77 on the Toll Pool was explained in detail in Central Arkansas Telephone Cooperative Inc. v. Arkansas Public Service Commission, 61 Ark. App. 147, 965 S.W.2d 790 (1998). There, the court of appeals looked to the Commission’s discussion of the Act’s impact on the Toll Pool, in which the Commission wrote as follows:

In Act 77, the General Assembly clearly provided ILECs the opportunity to elect to operate under alternative forms of regulation and once an ILEC elects alternative regulation, it can flexibly price intraLATA toll services under §§ 8(c) and 12(a) of Act 77. Furthermore, when an ILEC elects alternative regulation, § 11(f) of Act 77 exempts the ILEC from a number of statutory requirements including Ark. Code Ann. § 23-3-114, which requires the maintenance of average message toll service rates. The ILEC deregulatory election provisions in conjunction with the § 11(f) exemptions of Act 77 supersede and vacate the Commission Order requiring mandatory participation of the ILECs in the AITP.
Based upon Act 77, the Commission finds that . . . the Toll Pool became voluntary with the passage of Act 77 [,] and pursuant to Act 77 [,] the Commission lacks jurisdiction to require participation in the Toll Pool or to establish the intraLATA toll rates charged by electing ILECs. Therefore, the Commission finds that by operation of law Order No. 7 in Docket No. 83-042-U [establishing the Toll Pool] was vacated effective February 4, 1997, upon enactment of Act 77.

PSC Order No. 9 (July 2, 1997), quoted in Central Ark. Tel., 61 Ark. App. at 152 (internal quotations omitted).

In sum, by the foregoing passage, the Commission reached the reasonable conclusion that Act 77 made participation in the Toll Pool voluntary, rather than mandatory. It further concluded that the logical outcome of the Toll Pool becoming voluntary was for the larger ILECs, such as AT&T, to cease making contributions to the pool, and as a result, the smaller ILECs that had been dependent on their subsidies received from the Toll Pool suffered revenue losses. The Commission’s interpretation of Act 77 was a fair and reasonable one when it stated the Act was the statutory cause for the revenue reductions occasioned by the Requesting ILECs. See Southwestern Bell Tel. Co., supra (the interpretation given a statute by the agency charged with its execution is highly persuasive, and while not conclusive, neither should it be overturned unless it is clearly wrong). As such, the Requesting ILECs’ claims for Toll Pool revenue replacement do qualify for AUSF funding, and AT&T’s argument on this point is without merit.

AT&T next argues that the evidence submitted by the Requesting ILECs to the AUSF Administrator does not meet the criteria of § 23-17-404(e)(4)(C). That statute provides as follows:

In connection with the receipt of AUSF funds for these changes referred to in subdivisions (e)(4)(A) or (B) of this section, such shall not be conditioned upon any rate case or earnings investigation by the Commission. The AUSF administrator shall verify the calculations and accuracy of the net revenue reductions, based on a comparison between:
(i) The total annual revenues received from these sources by the eligible telecommunications carrier during the most recent twelve (12) months preceding the required regulatory or statutory changes; and
(ii) The reasonable projection of total test-year annual revenue after the changes are implemented.

AT&T contends that the evidence fails to show the AUSF Administrator prepared a total annual revenue projection; rather, AT&T argues, the Administrator relied on certain forms submitted by the Requesting ILECs. The appellees disagree and state that the forms used required annual revenue projections and that the PSC found those forms sufficient. The appellees also state the Requesting ILECs supplied the Commission with supporting workpapers verifying their calculations; these papers, too, aided the Administrator in his projections.

As mentioned earlier in this opinion, our review of appeals from the Public Service Commission is limited by the provisions of § 23-2-423 (c)(3), (4), and (5), which define our standard of review as determining whether the Commission’s findings of fact are supported by substantial evidence, whether the Commission has regularly pursued its authority, and whether the order under review violated any right of the appellant under the laws or the Constitutions of the State of Arkansas or the United States. Bryant v. Pub. Serv. Comm’n, 46 Ark. App. 88, 877 S.W.2d 594 (1994) (citing Associated Natural Gas Co. v. Arkansas Pub. Serv. Comm’n, 25 Ark. App. 115, 752 S.W.2d 766 (1988)). If an order of the Commission is supported by substantial evidence and is neither unjust, arbitrary, unreasonable, unlawful, nor discriminatory, then the appellate court must affirm the Commission action. Id. (citing Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. 47, 813 S.W.2d 263 (1991)). The appellate court views only the evidence most favorable to the appellee in cases presenting questions of substantial evidence, id., and the burden is on the appellant to show a lack of substantial evidence to support an administrative agency’s decision. Id.

Further, to establish an absence of substantial evidence to support a decision, the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Bryant v. Arkansas Pub. Serv. Comm’n, 57 Ark. App. 73, 941 S.W.2d 452 (1997) (citing AT&T Communications of the Southwest, Inc. v. Arkansas Pub. Serv. Comm’n, 40 Ark. App. 126, 843 S.W.2d 855 (1992); Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. 47, 813 S.W.2d 263 (1991)).,The question on review is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Id. (citing Ark. Elec. Energy Consumers, 35 Ark. App. at 72).

Order No. 12 notes that the Requesting ILECs utilized forms prepared and developed by the AUSF Administrator pursuant to AUSF Rule 3.02(A)(10); these forms instructed the Requesting ILECs to use a test year ending December 31, 1996. The Order goes on to state that the Requesting ILECs “submitted the forms utilizing the . . . test year in. compliance with the directive of the AUSF Administrator.” In addition, the Order directs the Requesting ILECs to true-up their requests based on actual annual revenues for the test year once that information is available.

We defer to the Commission’s findings here, since we need only consider the evidence most favorable to the appellees. We also note that AT&T has failed to abstract the forms the Requesting ILECs submitted to the administrator to show what was included or omitted. Simply put, AT&T has failed in its burden of persuasion on this point. While it makes the assertion that the forms submitted to the AUSF Administrator did not contain a projection of test year revenue, AT&T does not support that contention with any evidence from its abstract or the record. Therefore, we hold AT&T’s arguments to be without merit.

Finally, AT&T asserts that even if the evidence submitted by the Requesting ILECs to the Administrator met the criteria of § 23-17-404(e)(4)(C), such evidence did not constitute substantial evidence upon which the Commission could have based Order No. 12. AT&T notes that the Administrator is required to verify the calculations and accuracy of the claimed revenue reductions before allowing the ILECs’ reimbursement requests. AT&T relies on its own expert, Michael Pauls, who testified that the AUSF support documents were insufficient to show that the requests were valid. Without proper verification of the figures submitted by the Requesting ILECs, AT&T urges, there was insufficient evidence to support Order No. 12.

However, once again, AT&T has faded to abstract the forms submitted by the requesting companies, and as such, there is no way this court can review what the Administrator considered. In addition, while AT&T relies heavily on the testimony of its own witness, the Commission is not required to accept the testimony of any witness. See, e. g., Bryant v. Ark. Pub. Serv. Comm’n, 57 Ark. App. 72, 941 S.W.2d 452 (1997). In such situations, we affirm the factfinder — here, the PSC.

On cross-appeal, the appellees designated as the Rural Telephone Companies (the “RTCs”) argue that the Commission erred in interpreting Act 11 so as to make the twelve months preceding September 30, 1997, the base test year for purposes of calculating AUSF support. Under § 23-17-404(e)(4)(C), the Administrator is to verify the calculations and accuracy of the net revenue reductions based on a comparison of “(i) the total annual revenues received from these sources by the eligible telecommunications carrier during the most recent twelve (12) months preceding the required regulatory or statutory changes, and (ii) a reasonable projection of total test-year annual revenue after such changes are implemented.” (Emphasis added.)

The RTCs contend that the “most recent twelve months preceding the required regulatory or statutory changes” were the twelve months before Act 77’s enactment on February 4, 1997, or the year ending December 31, 1996. However, the Commission instead designated the twelve months preceding October 1, 1997, because that was the date on which the Commission determined that the “changes” were implemented and the toll pool was dissolved. The RTCs urge that this decision was in error, because such an interpretation would allow companies to manipulate the funding formula in a manner that cannot have been intended by the legislature. If the test year were after the enactment of Act 77, the RTCs argue, large companies that would not be receiving AUSF funding would have the opportunity to manipulate future AUSF reimbursements by accelerating investments so as to reduce Toll Pool revenues to rural companies during the test year; conversely, the rural companies could try to accelerate investments in an effort to increase their Toll Pool revenues so as to increase subsequent AUSF funding.

The Commission rejected these arguments, however, ruling that “[Toll Pool] reports for the twelve (12) month period ending September 30, 1997, will more accurately meet the requirements in Act 77 of a test year reflecting the most recent twelve months preceding the ‘regulatory changes.’ ” In Order No. 12, the Commission further explained its decision:

The election of alternative regulation pursuant to Act 77 by the majority of ILECs changed the AITP from a mandatory pool to a voluntary pool. See Act 77, § 11(f). The ILECs continued to voluntarily maintain uniform' toll rates and voluntarily continued participation in the AITP until October 1, 1997, when the larger ILECs withdrew from the AITP. The losses from the AITP for which the Requesting ILECs seek reimbursement were occasioned by the voluntary dissolution of the AITP on October 1, 1997. The most recent test year preceding the voluntary dissolution of the AITP would be the twelve months ending September 30, 1997, when those reports are finalized. The Administrator is hereby directed to true-up the reimbursement requests based upon AITP revenues using a test year ending September 30, 1997, by no later than July 1, 1998, and adjust the Requesting ILECs reimbursement requests accordingly.

Again, when reviewing a decision of the Commission, we look to determine if the Commission’s decision is supported by substantial evidence. Here, the Commission found that using the year prior to the implementation of Act 77 would most appropriately advance the legislature’s intent, which was to determine the ILECs’ net revenue reduction caused by the Act. As noted above, in order to determine that reduction in revenue, the Administrator was to compare the ILECs net annual revenues from the year before the statutory changes with projected net annual revenues for a year after the changes. The Commission obviously believed that the “changes” meant not the amendment to the statute, but the actual changes in the ILECs’ participation in the Toll Pool. These changes did not occur until October 1, 1997, when the larger ILECs pulled out of the Toll Pool.

However, we look to the Commission’s earlier decision, quoted above in Central Arkansas Tel. Coop. Inc. v. Public Service Commission, 61 Ark. App. 147, 965 S.W.2d 790 (1998), where the Commission wrote that the Toll Pool “became voluntary with the passage of Act 77 . . . [and was] vacated effective February 4, 1991, upon enactment of Act 77.” (Emphasis added.) This is contrary to the Commission’s finding in the instant case. If the PSC order establishing the Toll Pool was vacated as of February 4, 1997, then the Toll Pool should have been considered dissolved then, and not on October 1, 1997, as the Commission wrote in Order No. 12. It follows that if the Toll Pool was dissolved as of February 4, 1997, the twelve months preceding the statutory changes should have been determined to be February 1, 1996, through January 31, 1997. Of course, the “twelve months preceding” language in § 23-17-404(e)(4)(C) is not couched in terms of a calendar year, but this test year, designated in terms of calendar months, is more consistent with the financial reporting cycles of the businesses involved. Therefore, while we affirm on AT&T’s direct appeal, we reverse on the cross-appeal and remand to the Commission for further action not inconsistent with this opinion.

Special Justices Edward Morgan, James Pate, and Paul Lindsey join in this opinion.

Brown, Thornton, and Hannah, JJ„ not participating.

       The Toll Pool was established in 1983 by Public Service Commission Order No. 7 to allow local exchange carriers to recover the costs of providing long distance toll service. “Participation in the Toll Pool was required by Order No. 7, and the Toll Pool agreement provided that all LECs [local exchange carriers] would charge their customers uniform rates for IntraLATA toll calls and contribute these revenues to the Toll Pool. The Toll Pool then redistributed the revenues to the LECs based on their individual needs, causing some LECs to contribute more to the Toll Pool than their actual expenditures and some LECs to receive more in reimbursements than their contributions to the Toll Pool.” Central Ark. Tel. Coop., Inc., v. Arkansas Pub. Serv. Comm’n, 61 Ark. App. 147, 965 S.W.2d 790 (1998). “LATA” stands for “long distance access transport area.”

       Incumbent Local Exchange Carrier means a local exchange carrier that is certified by the PSC and that was providing basic local exchange service on February 8, 1996. Ark. Code Ann. § 23-17-403(16) (Supp. 1999).

       Northern Arkansas Telephone Company, Southwest Arkansas Telephone Company, Walnut Hill Telephone Company, and Yell County Telephone Company.

       Central Arkansas Telephone Cooperative, Inc., Lavaca Telephone Company, Inc., Magazine Telephone Company, Inc., Norther Arkansas Telephone Company, Inc., Southwest Arkansas Telephone Company, Inc., and Walnut Hill Telephone Company, Inc.


text:
    Tiffany Amelia DINKINS v. ARKANSAS DEPARTMENT of HUMAN SERVICES
    00-1401
    40 S.W.3d 286
    Supreme Court of Arkansas
    Opinion delivered March 22, 2001

      Floyd J Taylor, Jr., for appellant.

      Kathy L. Hall, for appellee.
   TOM GLAZE, Justice.

Tiffany Dinkins is the mother of seven children, three of whom -— Khadijah, Khatiana, and Khasahn — are involved in this appeal. Dinkins’s parental rights as to these three children were terminated by a chancery court order on September 8, 1999. Prior to the termination, the children had been in the custody of the Arkansas Department of Human Services (“DHS”) and in foster care for nearly two-and-a-half years. Dinkins appealed the court’s order terminating her parental rights to the court of appeals, which reversed the chancellor on the grounds that the decision was not supported by clear and convincing evidence. See Dinkins v. Arkansas Dep’t of Human Servs., 71 Ark. App. 451, 34 S.W.3d 366 (2000). DHS has petitioned for review of that opinion, alleging that the court of appeals improperly applied the standard of review. Our jurisdiction is thus proper pursuant to Ark. Sup. Ct. R. 2-4(c)(ii), and we reverse the court of appeals and affirm the chancellor.

We begin with a review of the relevant facts. Dinkins applied for DHS assistance on March 24, 1997, when she was nine months’ pregnant. At that time, Juanita Turner, a DHS employee, noticed a bruise on Khadijah’s right cheek and ear; the child told Turner that Dinkins had hit her. Turner inspected Dinkins’s home the next day, and found that the small two-bedroom trailer was filthy. Garbage cans were overflowing with trash and dirty diapers; the kitchen smelled of soured food, and dirty pots and pans cluttered the sink; dirty clothes and “unidentifiable debris” were found on the floor in each room. Upon examining the children, Turner saw numerous new bruises on Khadijah and Khatiana, who said their mother slapped them on the face and hit them with a stick.

On March 26, 1997, Turner took Dinkins and her children in for a physical examination. Khadijah and Khatiana had more new bruises on their chests; the children said Dinkins hit them with a belt. Although Dinkins denied causing the children’s injuries, Turner concluded that the children were in substantial danger of continued maltreatment. After an ex parte hearing on March 31, the chancery court, juvenile division, issued an order for emergency custody, finding probable cause existed to believe that the children were dependent-neglected. As a result, the court immediately removed the children from the present custodian in order to protect their health and physical well being from danger.

A probable-cause hearing was held on April 2, 1997, and on April 22, the juvenile court entered an order, finding the children to be dependent-neglected and ordering that the children remain in the custody of DHS. Although the court found that returning the children to their mother’s custody was contrary to their welfare, it directed that the goal of the case would be reunification. The court ordered Dinkins to attend mental health counseling, attend and complete parenting classes, obey the court’s orders, and comply with the DHS case plan.

The court reviewed the case periodically during the next two years, while the children remained in DHS custody. From July 1997 through December of 1998, each DHS report prepared for the chancery court recommended that reunification of the family should be the goal. While those reports noted that returning the children to their mother would be contrary to their welfare, they also reflected that Dinkins was complying with the case plan. However, a November 1998 report indicated that Dinkins’s apartment was unkempt, that she was not working, but instead was relying on public assistance as her only source of income, and that she had recently given birth to a baby. That November report noted that Dinkins had been complying with the case plan, but DHS had concerns about her ability to support the children. On the other hand, in December of 1998, DHS recommended a period of extended unsupervised visitation in order to successfully reunite the children and their mother.

In a February 1999 report, DHS recommended Dinkins be permitted a thirty-day trial visit with her children in her home. However, at a March 1, 1999, hearing, the chancellor rejected DHS’s trial-visit recommendation after viewing photographs of the inside of Dinkins’s home. He expressed concerns about the children’s welfare and the condition of the home. The chancellor also canceled the children’s weekend visits with their mother, returned custody to DHS, and ordered that future visitations be out-of-home and supervised.

At a May 11, 1999, review hearing, DHS recommended that the goal of the case be changed to termination of parental rights because the conditions that warranted the children’s removal in March of 1997 had not been remedied. The chancellor found “overwhelming evidence” that termination should be the goal. The petition to terminate Dinkins’s parental rights was filed on May 28, 1999.

A termination hearing was held on August 5, 1999, and at that time, evidence was presented showing Dinkins’s home was still inappropriate for the children. Several DHS employees testified that, although Dinkins had made some improvements, the house was still dirty and Dinkins seemed incapable of maintaining a consistently clean environment for her children. Photographs of the apartment, taken a few weeks before the hearing, showed a number of safety hazards, as well as generally unkempt conditions. In addition, evidence showed that Dinkins had not kept a steady job during the previous two years, and she did not have an income sufficient to support all of her children. Further testimony indicated that the children continued to suffer some physical abuse when they were in their mother’s custody. While Dinkins’s counselor testified that Dinkins had made progress in her anger management and parenting classes, other DHS workers stated that Dinkins had threatened them and continued to have problems with her anger. Dinkins herself testified that she did not want to lose her children, but conceded that she had a problem with her anger. Dinkins admitted that she had caused bruises on her daughter’s face and ear, but asserted that the last time she had hit her children was before they were taken into DHS custody. Dinkins also conceded that earlier her parental rights had been terminated with respect to two other children she had in New York.

After the hearing, the chancellor entered his findings of fact on September 7, 1999. In those findings, he noted that Dinkins had “above average intelligence,” but that she “cannot and will not hold a steady job despite the fact that she has the intelligence and good health to do so.” The chancellor also stated that Dinkins’s apartment was virtually rent-free, yet she still managed to get behind on her $1.00 a month rent. Because Dinkins “either quits or is fired” from her jobs, she did not “have the financial resources to support the two children that remain at home, much less the three children at issue here.” In addition, the chancellor noted that he had viewed the photos of Dinkins’s apartment, and deemed it unsuitable for any child to visit, much less live in. The findings of fact also recited that notwithstanding her job at a cleaning service and the fact that she had graduated from a vo-tech school with a certified nursing assistant’s license, DHS had to provide Dinkins with a DHS worker to show her how to clean her own home.

The court found DHS’s testimony about the ongoing abuse to be credible, and also found that Dinkins was “so irresponsible, impulsive and at times belligerent that she lacks the emotional discipline to ever hold a job.” The chancellor concluded that “[t]o return the three children to this small three-bedroom apartment to reside with Ms. Dinkins and two more children under these circumstances would be a great disservice to the well being of [the] three children.”

In his September 7, 1999, conclusions of law, the chancellor found that DHS had shown by clear and convincing evidence that the three children, Khasahn, Khatiana and Khadijah, had been adjudicated dependent-neglected and had remained out of their mother’s home continuously in excess of two years and four months. He further found that DHS had made a meaningful effort to rehabilitate the home and correct the conditions and that those conditions had not been remedied by the parent, and that, despite Dinkins’s capability to hold a job, she had not done so, nor had she contributed anything to the support of her three children. The chancellor determined it would be in the children’s best interests for Dinkins’s parental rights to be terminated pursuant to Ark. Code Ann. § 9-27-341 (Supp. 1999).

Dinkins timely filed her notice of appeal from the chancellor’s termination order, and the court of appeals considered and reversed the chancellor’s order. After reviewing the evidence, the court of appeals was “left with a definite and firm conviction that DHS has not demonstrated by clear and convincing evidence that Dinkins failed to correct the conditions that caused the children’s removal.” Dinkins v. Arkansas Dep’t of Human Servs, 71 Ark. App. 451, 460, 34 S.W.3d 366 (2000). DHS petitioned us to review the court of appeals’ decision.

Upon a petition for review, we consider a case as though it had been originally filed in this court. Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000) (citing Maxey v. Tyson Foods, Inc., 341 Ark. 306, 18 S.W.3d 328 (2000); Woodall v. Hunnicutt Construction, 340 Ark. 377, 12 S.W.3d 630 (2000); White v. Georgia-Pacific Corporation, 339 Ark. 474, 6 S.W.3d 98 (1999); Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999)). We hold the chancellor’s decision to terminate Dinkins’s parental rights must be affirmed.

Arkansas Code Annotated section 9-27-341 (b)(3) (Supp. 1999) requires an order terminating parental rights be based upon clear and convincing evidence. Larscheid v. Arkansas Department of Human Services, 343 Ark. 580, 36 S.W.3d 308 (2001) (citing Baker v. Arkansas Dept. of Human Servs., 340 Ark. 42, 12 S.W.3d 201 (2000)). Our law is well settled that when the burden of proving a disputed fact in chancery court is by clear and convincing evidence, the question that must be answered on appeal is whether the chancery court’s finding that the disputed fact was proven by clear and convincing evidence was clearly erroneous. Id. (citing J. T. v. Arkansas Dept. of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997); Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992)). Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the chancery court to judge the credibility of witnesses. Id. 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 made. Gregg v. Arkansas Dep’t of Human Servs., 58 Ark. App. 337, 952 S.W.2d 183 (1997). Cases such as this are reviewed de novo on appeal. Wade v. Arkansas Dep’t of Human Servs, 337 Ark. 353, 990 S.W.2d 509 (1999).

In this case, the chancellor terminated Dinkins’s parental rights under Ark. Code Ann. § 9-27-341 (b) (3) (B)(i) (a) (Supp. 1999), which states that an order terminating parental rights shall be based on a finding by clear and convincing evidence that a juvenile “has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the home and correct the conditions [that] caused removal, those conditions have not been remedied by the parent.”

In Baker v. Arkansas Department of Human Services, 340 Ark. 42, 8 S.W.3d 499 (2000), this court repeated its holding that “when the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship.” Baker, 340 Ark. at 48-49 (citing J.T. v. Arkansas Dept. of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997)). This court continued, noting that termination of parental rights is an extreme remedy and is in derogation of the natural rights of the parents. Baker, 340 Ark. at 48 (citing Wade v. Arkansas Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999)). However, the court recognized in J. T. v. Arkansas Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997), that parental rights should not be allowed to continue to the detriment of the child’s welfare and best interest. To illustrate that the best interest of the child is the primary consideration in these cases, this court in J.T. stated:

While we agree that the rights of natural parents are not to be passed over lightly, these rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. Parental rights will not be enforced to the detriment or destruction of the health and well-being of the child.

J.T., 329 Ark. at 248.

The purpose of the termination-of-parental-rights statutes is set forth in Ark. Code Ann. § 9-27-341 (a) (3) (Supp. 1999), which provides as follows:

The intent of this section is to provide permanency in a juvenile’s life in all instances where the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile’s perspective.

See Moore v. Arkansas Department of Human Services, 69 Ark. App. 1, 9 S.W.2d 531 (2000) (where the mother had failed to provide a home and adequately demonstrate the ability to parent her children after receiving rehabilitative services for three years, the chancellor’s decision to terminate parental rights was not clearly erroneous).

In the instant case, Dinkins’s case plan required her to maintain a stable home and acquire a job; although she kept the same apartment from October of 1997 until the termination hearing, she was threatened with eviction several times, and she failed to keep a job. Her children had been out of the home for over two years, and although she had complied with part of her case plan, she had not managed to consistendy maintain her home in a sanitary condition or to acquire a steady job which would have enabled her to provide for her children. In addition, evidence was presented at the termination hearing that the physical abuse of the children had not ended.

This court gives a high degree of deference to the chancellor, who is in a far superior position to observe the parties before him. See Davis v. Office of Child Support Enforcement, 341 Ark. 349, 20 S.W.3d 273 (2000). Here, although there were inconsistences in the testimony presented at the termination hearing, the resolution of those inconsistencies was best left to the chancellor, who heard and observed these witnesses first-hand. Given our deferential standard of review, we cannot say that we are “left with a definite and firm conviction that a mistake has been made.” Gregg, supra. After reviewing the evidence in this case, the chancellor concluded that there was clear and convincing evidence to support an order terminating Dinkins’s parental rights. We cannot say that his decision was clearly erroneous.

In her appeal, Dinkins also argued that the chancellor erred in finding that she had not discharged or met her child support obligations and, as such, had failed to provide significant material support for the children. Under Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(A) (Supp. 1999), the failure to provide material support is another ground for terminating parental rights. The chancellor, however, did not find that Dinkins has “willfully” failed to provide support; DHS concedes that it never requested contributions of material support from Dinkins, nor did the trial court ever order her to pay child support. Therefore, it was error for the chancellor to conclude that Dinkins’s failure to provide support constituted an additional ground on which to base the termination of her parental rights. Nonetheless, this error does not warrant reversal, because when a chancellor reaches the proper result, albeit for an incorrect reason, this court can still affirm. See Malone v. Malone, 338 Ark. 20, 991 S.W.2d 546 (1999).

We conclude by emphasizing that this case has gone on for nearly four years. Two-and-a-half years elapsed from the time DHS took custody of these children in March of 1997 until the time the court terminated Dinkins’s parental rights in September of 1999. It is now March of 2001. The emergency clause preceding the 1997 amendments to the Juvenile Code stated one of the purposes of our statutes is to “insure the best interests of Arkansas’ children in achieving a safe and permanent home.” The court’s review and conclusion of this case is long overdue, especially in light of the convincing evidence that Dinkins failed to remedy the serious problems that caused her children to be removed from her custody and placed with DHS almost four years ago. Thus, because the trial court’s order terminating Dinkins’s parental rights is not clearly erroneous, we affirm. The court of appeals’ decision is reversed on petition for review.

       In October 1998, DHS filed a petition to terminate Dinkins’s parental rights because it understood it was required to do so under federal law. However, that petition was subsequently dismissed at DHS’s request.

       Prior to this hearing, Judge Joe Mazzanti presided over this case. After January 1999, however, the chancellor was Judge Bynum Gibson.

       The May 11, 1999, order initially entered after this hearing reflected that Dinkins had not complied with the DHS case plan. However, on July 12, 1999, the court entered an amended and substituted order which recited that the court did not make a specific finding as to whether Dinkins had complied with the court’s orders and the DHS case plan. Nevertheless, the goal of the case remained termination of Dinkins’s parental rights.

       Dinkins gave birth to two more children since Khadijah, Khatiana, and Khasahn were taken from her custody in March of 1997.

       Under Ark. Code Ann. § 9-27-338 (Supp. 1999), a permanency planning hearing must be held no later than twelve months after the juvenile enters an out-of-home placement. At this time, the chancellor must enter a disposition that (1) returns the juvenile to the parent; (2) authorizes a plan for termination of the parent-child relationship; (3) places the juvenile in long-term foster care; or (4) allows the juvenile to continue in an out-of-home placement for a specified limited period of time. See Arkansas Dep’t of Human Servs. v. Farris, 309 Ark. 575, 832 S.W.2d 482 (1992).

       For example, Juanita Turner testified about a burn she had seen on one of the girls; the child who had been burned testified that her mother did not inflict the burn on purpose, despite her earlier statement that the act had been intentional. In addition, Dinkins and her counselor both noted that she had made improvements with her anger management, but several of the caseworkers testified that Dinkins had threatened them.