text:
    Harold WILLIAMS and CENTRAL UTILITIES CONSTRUCTORS, INC. v. JOYNER-CRANFORD-BURKE CONSTRUCTION CO. and UNITED PACIFIC INSURANCE CO.
    84-242
    685 S.W.2d 503
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985

      Rose Law Firm, A Professional Association, by: Richard T. Donovan, for appellant.

      Friday, Eldredge ir Clark, by: Michael G. Smith, for appellee.
   Robert H. Dudley, Justice.

Appellants, Central Utilities Constructors, Inc., a construction company, and Harold Williams, its primary shareholder, filed suit alleging that appellees, Joyner-Cranford-Burke Construction Co., and United Pacific Insurance Company, its bonding company, refused to pay appellant Central the $27,999.98 balance due on its written subcontract for construction of sewer laterals in the Mabelvale-Alexander Sewer Improvement District #142. Appellants further alleged that appellees’ conduct and failure to act in a commercially reasonable manner was so egregious that appellees were guilty of the tort of bad faith. Appellees contended that appellants could not bring an action in either law or equity for the breach of any contract related to the District since neither appellant was licensed as a contractor pursuant to Ark. Stat. Ann. § 71-701 et seq. (Repl. 1979), the contractor’s licensing act. Section 71-713 provides generally that contractors who undertake construction jobs, excluding residences, with a cost to the contractor of $20,000.00 or more must be licensed to do business by the State Licensing Board for Contractors. Failure to obtain such a license constitutes a misdemeanor, and the statute additionally prohibits the contractor from suing". . .either at law or in equity to enforce any provision of a contract entered into ...”

Appellees further answered that appellants failed to state a claim upon which relief could be granted for the alleged tort of bad faith non-payment.

Appellants subsequently amended their complaint to plead that they were not seeking reimbursement for work performed under the original $500,000.00 written contract but for work performed pursuant to 16 separate and distinct oral contracts for the construction of the laterals, none of which exceeded $20,000.00. The trial court granted summary judgment in favor of both appellees. We affirm. Jurisdiction is in this court pursuant to Rule 29(1 )(c) of the Rules of the Supreme Court.

The affidavits submitted by the appellees in support of their motion for Summary Judgment establish the following:

(1) Neither Harold Williams nor Central Utilities Constructors, Inc. was a licensed contractor with the Arkansas Contractors Licensing Board pursuant to the requirements of Ark. Stat. Ann. § 71.-701 at the time the written subcontract with Joyner-Cranford-Burke was executed.
(2) The total approximate price for the job to be completed under the subcontract by Central Utilities was $500,000.00.
(3) The laterals set out in the plaintiffs’ amended complaint were all a part of the Sewer Improvement District No. 142 project, and these laterals were add-on items to the original subcontract. The laterals were created by change orders issued to Joyner-CranfordBurke from the engineers on the project and in some cases they replaced the laterals listed on the written contract between Joyner-Cranford-Burke and Utilities.
(4) All payments to Central Utilities for the work performed by it on Sewer Improvement District No. 142 were governed by the written contract, and the terms of performance of the extra work were governed wholly by the written subcontract.

In response, Appellant Harold Williams filed an affidavit which stated:

(1) The contracts referred to in my Amended Complaint were sixteen separate and distinct oral contracts. Each lateral listed in my Amended Complaint constitutes a separate and distinct oral contract entered into between myself and Joyner-Cranford-Burke.

The appellants contend that their amended complaint coupled with Williams’s affidavit raise genuine issues of material fact. We find the argument without merit.

Even though affidavits for summary j udgment are to be construed against the movant, Leigh Winham, Inc. v. Reynolds Ins. Agency, 279 Ark. 317, 651 S.W.2d 74 (1983), once the moving party makes a prima facie showing of entitlement to a summary judgment, the responding party must discard the cloak of formal allegations and meet with proof by showing a genuine issue as to a material fact. Hughes Western World, Inc. v. Westmoor Mfg., 269 Ark. 300, 601 S.W.2d 826 (1980). Our summary judgment rule, ARCP Rule 56, requires that proof offered to meet a properly supported motion for summary judgment “must set forth specific facts showing that there is a genuine issue for trial.” Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982). Affidavits which consist merely of general denials, without any statement of specific facts, are insufficient. Id. at 427.

In the case at bar, it is undisputed that appellants were not licensed; that their overall subcontract called for payment of $500,000.00; and that all laterals were a part of the Improvement District No. 142 project. By affidavit the appellees swore that these laterals were add-on items to the original contract and were caused by change orders from the engineers and that the terms of performance on these added laterals were governed wholly by the written subcontract. To those specific facts, the appellants merely gave a conclusory affidavit that each lateral constituted a separate and distinct oral contract. The appellants failed to meet proof with proof. They did: not allege that the extra laterals were negotiated separately, nor that there was anything separate and distinct about these laterals, nor did they deny that the terms of performance for the laterals were governed by the original contract.

The summary judgment must be affirmed for another reason. The appellants offer no facts to dispute appellees’ statement that all of the laterals were a part of the Improvement District No. 142 project. The statute applies when “the cost of the work to be done” is $20,000.00 or more. The “cost of the work to be done” by appellant on the project was $500,000.00, and the statute cannot be circumvented by dividing the project into many contracts of less than $20,000.00. See Cochran v. Ozark Country Club, Inc., 339 So.2d 1023 (Ala. 1976). The word “cost” refers to the aggregate amount which a contractor is to receive on any one project. The trial court correctly granted the motion for summary judgment on the claim for breach of contract.

The appellants’ complaint also contained a count for the tort of bad faith. The trial court ruled that the claim failed to state facts upon which relief could be granted. Appellants ask us to problematically decide whether the contractors licensing statute precludes an unlicensed contractor from bringing a claim sounding in tort. We need not decide that issue, for this claim does not state a cause of action for the tort of bad faith, no matter how we interpret the statute.

The count is as follows:

That due to JCB’s and UPIC’s [Appellees] willful conduct and failure to act in a commercially reasonable manner the Plaintiff, Harold Williams, has been irreparably harmed, in that he has been psychologically injured by the infliction of mental distress and his business reputation, as well as the business reputation of CUC, has been damaged beyond repair and as a result of these actions of JCB and UPIC he has been forced to file personal bankruptcy pursuant to Chapter 11 of Title XI, United States Code, on March 21, 1983. (R. 3)

It will be seen that the count does not assert any affirmative action on the part of the appellees which would constitute the tort of bad faith. Under our rules of civil procedure we do not recognize “notice pleadings,” we recognize “fact pleadings.” ARCP Rule 8; Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). In notice fofm the complaint states that it is for willful conduct. It fails to state any facts from which one could conclude that appellees engaged in dishonest, malicious, or oppressive conduct in order to avoid their liability. The trial court correctly ruled that the tort count for bad faith failed to state facts upon which relief can be granted.

The appellants next ¿ontend that the contractors licensing statute is intended to protect the public, not contractors, and it should not be used as a shield by a contractor to avoid an otherwise valid obligation to a subcontractor. We have examined the statute in light of appéllants’ argument, but the statute is so clear that to quote it in the pertinent part is to fully answer the argument. “No action may be brought either at law or in equity to enforce any provision of any contract entered into in violation of this act.” Ark. Stat. Ann. § 71-713 (Repl. 1979). Unfortunately for the appellants, the statute is a penal one, and, at times, harsh results flow from construction of penal statutes.

Affirmed.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    E. W. GLOVER v. R. H. DIXON
    84-231
    688 S.W.2d 930
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985

      Guy Jones, Jr., P.A., for appellant.

      Laser, Sharp fa Huckabay, P.A., for appellee.
   David Newbern, Justice.

This case arose from a collision of two pickup trucks at an intersection of two unpaved country roads. The question presented is whether the court should have given instructions based on the statutory rules of the road despite evidence that one of the roads was on private property. As we must determine the applicability of certain statutes, our jurisdiction arises from Arkansas Supreme Court and Court of Appeals Rule 29.1. c.

The plaintiff Glover was coming from the defendant Dixon’s right hand side. He asked the court to instruct, in accordance with Arkansas Model Jury Instruction 904, that the vehicle on the left must yield the right-of-way when two vehicles approach an intersection at the same time. The instruction is based on Ark. Stat. Ann. § 75-621(b) (Repl. 1979) which says,

When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.

Glover also asked the court to instruct the jury in the specific terms of the statute and in accordance with AMI 903.

The AMI 904 instruction and the statute use the terms “intersection” and "highways.” In refusing the instructions the court said, in part,

. . . the court believes, based on the testimony, that this * was an intersection of a county road some two lanes wide with maintained ditches and a private road belonging to the timber company barely wide enough for two cars to pass. . . .

The facts as to the relative widths and state of maintenance of the two roads were disputed. There was evidence that the road on which the plaintiff travelled was on privately owned land, but there was no evidence taken on whether it was a private road.

Ark. Stat. Ann. § 75-412(b) (Repl. 1979) defines “private road” as one “in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner but not by others.” Ark. Stat. Ann. § 75-412(a) (Repl. 1979) defines a "highway” as being “open to the use of the public, as a matter of right, for purposes of vehicular traffic.”

An “intersection” is defined as a place at which two “highways” come together. Ark. Stat. Ann. § 75-413 (Repl. 1979).

As we said in Louisiana & A. Ry. v. O’Steen, 194 Ark. 1125, 110 S.W.2d 488 (1938), an instruction is not objectionable if the objection assumes facts in dispute. Nothing in the record before the trial court or before this court could be viewed as conclusive on the issue whether the public had the right to use the road on which the plaintiff entered the alleged intersection. If the road on which the plaintiff travelled fit the definition of a “highway,” the instructions sought would have been appropriate. The evidence that the road was on private property was insufficient to reach the conclusion that the instructions should not have been given. .The jury should have been allowed to decide whether the road travelled by the plaintiff was a “highway.”

Reversed and remanded for a new trial.


text:
    Herbert DUNCAN and Silersteen DUNCAN v. DAVIS AND EARNEST, INC. d/b/a DAVID DISCOUNT AND GENERAL SHEET METAL CO.
    84-261
    685 S.W.2d 509
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985

      James C. Cole, for appellant.
    G. Christopher Walthall, for appellee.
   David Newbern, Justice.

Davis and Earnest, Inc., hereafter referred to as “Davis,” claims a materialman’s lien on property owned by the Duncans. The notice required by Ark. Stat. Ann. § 51-608.1 (Supp. 1983) to be given by the materialman to the owner prior to supplying material, and ordinarily necessary to perfection of the lien, was not given. Davis claimed, and the trial court held, that the notice was not required because the transaction or transactions fell within an exception to the notice requirement. The exception is created by Ark. Stat. Ann. '§ 51-608.5 (Supp. 1983) in the case of a “direct sale” by the materialman to the property owner.

The question on this appeal is whether the determination that the statutory exception to the notice requirement applied was clearly erroneous, i.e., clearly against the preponderance of the evidence. As we are required to interpret the statute, our jurisdiction arises under Arkansas Supreme Court and Court of Appeals Rule 29 1. c.

The statute, § 51-608.5, provides that the notice requirement of § 51-608.1 does not apply if there is a direct sale by the materialman to the property owner. It further provides that “[a] sale shall be a direct sale only if the owner or his authorized agent personally orders such materials from the lien claimant.”

The chancellor’s findings were that the notice was not required because the Duncans had dealt personally and directly with Davis. The judgment says Davis “. . .by virtue of its direct contact with the defendants, has availed itself of the statutory exception to the requirement for notice. ...” However, the primary position of Davis in this appeal is that the Duncans made their builder, Leard Burks, their “authorized agent” and thus entitled Davis to the exception to the notice requirement. As there was no finding on the agency point by the trial court, we assume Davis is asking us to say the chancellor reached the correct result for the wrong reasons and should be affirmed notwithstanding the reason given.

We will first explore whether the findings of the chancellor were clearly against the preponderance of the evidence and then whether the record supports Davis’s “authorized agent” theory.

1. Direct Dealing

The Duncans hired Burks to build a house in Hot Spring County while they continued to reside in Ohio, making occasional visits to Arkansas.

The evidence of direct dealing between Davis and the Duncans cited by Davis was that the Duncans went to the store several times and picked out some items to be used in the construction of their home. Davis contends that the Duncans “ordered” the items, but the very exhibit to which they point to support the contention is just a list made by a Davis employee of items such as a bathtub, sink and windows. It contains no prices or delivery specifications. The only name on the paper is “L. Burks,” the builder.

There was also testimony that on the occasion of selecting the materials Mr. Duncan left his business card with a Davis employee, saying to let Burks have whatever was needed and to call him in the event of a problem and that “money is no problem.”

By contrast, the Duncans’ Exhibit 3 consists of twelve invoices totaling $11,992.31, the amount of the lien sought. On each of the invoices, the customer’s name is shown to be Leard Burks. All but one show delivery to Leard Burks or a carpenter on the job, and the one exception does not show who the recipient was.

A Davis employee testified he gave the statutory lien notice form to Burks to be signed by the Duncans but that it was not returned. Mr. Duncan testified he had refused to sign the form.

The trial court’s finding that Davis dealt directly with the Duncans is clearly against the preponderance of the evidence. All of the documents show Burks was their customer. The mere act of picking out items to be supplied to Burks is no evidence that the Duncans placed an order with Davis. Had Davis thought it was dealing directly with the Duncans surely the Duncans rather than Burks would have been billed for the materials, but that was not the case. We find the clear preponderance of the evidence shows Burks was Davis’s customer, having been engaged to build a house for the Duncans as an ordinary contractor. If Davis planned to assert a lien on the property, it should have complied with the clear statutory notice requirement by obtaining a signed notice form.

2. Authorized Agent

The testimony of a Davis employee that Mr. Duncan told him to let Burks have whatever was needed is some evidence showing an agency existed. However, in view of the already recited overwhelming evidence that Davis regarded Burks as its customer and not as agent for the Duncans, we are disinclined to go beyond the trial court’s findings on this record to say the notice requirement did not apply.

The statutory notice requirement and exception scheme enacted in 1979 is apparently in some measure a codification of the earlier common law. In Malone v. Holly Grove Lumber Co., 148 Ark. 242, 229 S.W. 716 (1921), the question whether a builder was an agent of the property owner for purposes of the materialman’s lien arose. There we were dealing with the ten-day notice requirement contained in § 51-608. We said the notice requirement does not apply if the owner himself purchased the material. We upheld the chancellor’s determination that purchases had been made by a builder as agent for the owner and thus the purchases were by the owner and the notice was not required. We said,

. . .[t]he fact that the material was charged to, shipped to, and received by, appellant [the property owner] and the testimony that an invoice and monthly statement were sent to appellant are strong corroborative circumstances that it was sold directly to said appellant on the order of [the builder]. . . .[148 Ark. at 246, 229 S.W. at 717]

In this case, none of those factors were present. Quite the contrary is shown by the record.

Conclusion

We find the evidence of agency, when compared with evidence that Burks was an independent contractor and the customer of Davis, insufficient for the exercise of our de novo review power to reach a factual determination different from that of the chancellor but in support of the result he reached.

We hold the chancellor’s finding that Davis dealt directly with the Duncans is clearly erroneous, i.e., clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a), City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664(1981).

Reversed.


text:
    Stacy J. PRICE v. STATE of Arkansas
    CR 85-25
    685 S.W.2d 506
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985

      James F. Werner, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is an appeal of a conviction of DWI under Act 549 of 1983 and of speeding. Questions of interpretation and constitutionality of the Act are raised, thus our jurisdiction is based on Arkansas Supreme Court and Court of Appeals Rule 29.1. a. and c. Facts necessary to understanding the appellant’s points will be considered as each point is discussed.

1. Sufficiency of Citation

The appellant complains that he was charged with DWI by an instrument entitled “complaint” rather than “citation.” The appellant does not suggest how he was prejudiced by this misnomer. Neither his abstract or the record shows the point to have been argued to the trial court, so we will not consider it on appeal. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). For the same reason we decline to consider the appellant’s argument that the “complaint” did not notify him of the time and place of the trial. There was no objection in the trial court. Stiles v. Hopkins, 282 Ark. 207, 666 S.W.2d 703 (1984).

The appellant contends the “complaint” was insufficient because it simply charged him with DWI and was issued within ninety days after the adjournment of the General Assembly session which passed Act 549. The argument is that no case had yet decided the validity vel non of the emergency clause which accompanied the Act. The short answer to this argument is that all legislation is presumed to be constitutionally valid. Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180(1980).

2. Culpable Mental State

The appellant argues Act 549 should be declared invalid because it does not require a culpable mental state and is thus in violation of the requirement of Ark. Stat. Ann. § 41-204(2) (Repl. 1977). That section says if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required. It clearly does not require that any criminal statute make a culpable mental state an element of the crime in so many words.

3. Conflict with Act 409

The appellant argues that Act 409 of 1983, which deals generally with sentencing, came into effect after Act 549 and thus invalidates the sentencing limitations of Act 549. Act 549 had an emergency clause, and it came into effect March 21, 1983. Act 409 had no emergency clause, and it came into effect July 1, 1983. The appellant argues that the act which comes into effect later is controlling. The argument is not correct. If there is a conflict which cannot otherwise be resolved Act 549 is the later expression of the legislative will, and thus it is controlling regardless of its having become effective earlier than Act 409. Williams v. State, 215 Ark. 757, 223 S.W.2d 190 (1949).

4. Radar Operator’s Qualifications

Testimony at the trial was that the appellant drove 45 mph in a 25 mph zone. The appellant contends the officer who operated the radar device upon which the testimony was based was in violation of Act 672 of 1983, and the testimony should have been stricken. The officer testified he had been certified in 1980. The Act, codified in relevant part as Ark. Stat. Ann. § 42-1013(b) (Supp. 1983), provides that police radar operators have one year from March 22,1983, to complete new training or have previous training determined to be equivalent. The appellant’s trial was in January, 1984, thus the officer’s certification was not invalidated by the Act.

5. Observation Time

The appellant was given a breathalyzer test showing his blood alcohol content to have been in excess of the minimum permitted for drivers under Ark. Stat. Ann. § 75-2503(b) (Supp. 1983). He contends he was not kept under observation for a twenty-minute period before the test was administered. Evidence showed the appellant was stopped in his car no later than 11:31 p.m., and the test was administered at 11:54 p.m. During that twenty-three minute period the appellant was in the presence of officers. We have held that substantial compliance with the state health department regulation requiring the observation period is sufficient. Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985). There was substantial compliance in this case.

6. Presentence Report Requirement

Ark. Stat. Ann. § 75-2506 (Supp. 1983) requires that before sentence is pronounced the court must have received a presentence report from the “Highway Safety Program or its designee. ” In this case there was no such report, so the court was in error in pronouncing sentence. However, no objection tjvas made before or after pronouncement of sentence. After sentencing defense counsel said, “Doesn’t he have to visit the alcohol treatment center?” After colloquy between the court and the prosecutor the defense counsel said, “But you’re not requiring visiting the treatment center before sentencing?” Neither of these interrogatories can be characterized as an objection. No mention was made of the specific statutory requirement, and thus the court was not given an opportunity to rule on it. The issue was thus not preserved for appeal. Stiles v. Hopkins, 282 Ark. 207, 666 S.W.2d 703 (1983).

Two other points were raised by the appellant, but we will not consider them because they were supported neither by authority nor by convincing argument. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Affirmed.


author: Per Curiam.

text:
    John C. PULLAN d/b/a SHEAR PLEASURE FAMILY HAIR CARE v. Julia P. FULBRIGHT d/b/a JULIA’S SHEAR PLEASURE BEAUTY SALON and Raymond PHILLIPS v. Patricia Ann HILL and Robert Lee HILL
    685 S.W.2d 151
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985

      Floyd G. Rogers, for appellant John C. Pullan.

      James C. Mainard, for appellant Raymond Phillips.
    No response by appellees.
   Per Curiam.

Motions for Rule on Clerk were filed in both of the above-styled cases. Both motions state that the parties in the respective cases have been notified that the transcripts of the Crawford County proceedings cannot be filed by the Supreme Court Clerk because the court reporter who transcribed them, Mickey Sparks, is not properly certified as a court reporter.

This court adopted a rule providing for the certification of court reporters on July 5, 1983. In Re: Arkansas Supreme Court Bd. of Certified Court Reporters Examiners, 280 Ark. 598, 656 S.W.2d 694 (1983). Section 9 of that rule provides as follows:

Scope.
As to all transcripts taken from and after the effective date of this Rule, all courts in Arkansas will accept as evidence only those transcripts which are certified by a court reporter who holds a valid certificate under this Rule.

By Per Curiam order September 26, 1983, this court approved certain rules and regulations with reference to Certified Court Reporters, including the following provisions:

12. Any eligible applicant not certified pursuant to the per curiam Order of the Supreme Court of Arkansas, dated July 5, 1983, or any eligible applicant who is certified in another state, may be granted a non-renewable temporary certificate, at the discretion of the Board, to enable said applicant to work. Applicants issued a temporary certificate shall be given a period of one year from the date of said certificate to complete certification requirements.
13. In the event of an emergency where no Certified Court Reporter is immediately available, a judge of a circuit or chancery court may in his discretion, grant a thirty-day, non-renewable emergency certificate in order to continue the conduct of the court’s business; provided a copy of the thirty-day emergency certificate is forthwith filed with the Clerk of the Arkansas Supreme Court and Secretary of this Board.

It is undisputed that Mickey Sparks, the Court Reporter in both cases, was not certified. Under Section 9 therefore, the transcripts cannot be accepted by this court as evidence unless Mr. Sparks has a valid temporary certificate or emergency certificate as defined in the regulations.

The records of the Clerk of this Court reflect that Mr. Sparks made formal application on June 27, 1984, for “a temporary permit” from our Clerk to continue reporting until such time as he obtained certification, taking exception to the paying of his fee. On July 2,1984, he was advised in writing by Judge Cracraft, Chairman, Board of Court Reporting Examiners, that our Clerk does not issue temporary certificates and they are only issued by action of the full Board of Examiners upon payment of his application fee. Mr. Sparks was not heard from again until January 18, 1985, at which time he resubmitted an application for “a temporary work permit” together with tender of application fee.

On January 24,1985, Chancellor Bernice L. Kizer issued orders In the Matter of the Adoption of Ronald Lee Hill, Van Buren Probate No. P-83-101 declaring an emergency to exist and ordering that Mickey Sparks be allowed to serve as certified court reporter on August 7, 1984. At the same time an identical order was issued in Julia Fulbright et al v. John Pullan, Van Buren Chancery No. E-83-543 specifying that Mickey Sparks was not certified on July 31, 1984, declaring an emergency and ordering that Mickey Sparks be allowed to serve as certified court reporter in the proceedings on that date. In each instance these orders were entered in the trial court nunc pro tunc but were not filed with the Clerk of this Court or with the Secretary of the Board of Certified Court Reporters Examiners as required by Regulation 13.

It is obvious that Mickey Sparks was not a properly certified court reporter on July 31, 1984, and/or August 7, 1984, and that the court’s order of January 24, 1985, entered nunc pro tunc to these respective dates does not satisfy the regulations.

The actions of applicant Sparks and of the trial court which issued orders allowing him to serve as “Certified Court Reporter” are in direct conflict with the court’s Per Curiam orders and regulations, thus violating the purpose and spirit of the certification of court reporters. Although application is a matter for the person desiring to be certified as a court reporter, it is the responsibility of all courts in Arkansas to ascertain and insure that his or her court reporter is properly certified.

It is our intention to adhere strictly to § 9, however, an exception will be made in this instance, since this is the first airing of our Rule and its strict application.

In the interests of allowing the litigants in these cases their opportunity to appeal and because of the burdensome effect on our court system of such a harsh result, we will accept transcripts in each of these cases, provided the attorneys of record will certify to the Supreme Court Clerk, by affidavit, statements that the transcripts are true, accurate, and complete and provided the trial court certifies that this reporter is not now employed as court reporter without proper certification.

In the future, remedies of this nature may not be available.


author: Per Curiam. John I. Purtle, Justice,

text:
    Lodene GARRETT, et al v. Honorable Perry V. WHITMORE, Judge
    85-49
    685 S.W.2d 172
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985

      Charles L. Carpenter, for petitioner.

      Steve Clark, Att’y Gen., and Jim Hamilton, City Att’y for North Little Rock, for appellee.
   Per Curiam.

Petition for Writ of Prohibition is denied. Purtle, J., would grant.

John I. Purtle, Justice,

dissenting. The majority denied the petition for prohibition without written opinion, as we often do because of the tremendous number of petitions and motions which we must act upon. To write a full opinion in all cases is an impossibility. The petition sought to compel the circuit court to transfer this case back to chancery from whence it came. The petitioners originally filed a complaint in chancery to prohibit the City of North Little Rock and the Pulaski County Election Commission from holding an annexation election in conjunction with the annual school board election. The complaint relied upon Ark. Stat. Ann. § 19-307.2 (Repl. 1980) which speaks to annexation elections and in part states: “Such annexation ordinance shall not become effective until the question of annexation is submitted to the qualified electors of the annexing city and of the area to be annexed at the next general election or at a special election.” The statute gives the circuit court jurisdiction over such annexation procedures.

Petitioners sought to prevent the election in the chancery court, alleging an illegal exaction in violation of Article 16, Section 13, of the Constitution of the State of Arkansas. When a local bank agreed to pay the future election expense, the chancellor transferred the case immediately to the circuit court. Petitioners then moved to transfer the case back to chancery. After the circuit court rejected their motion a petition for a writ of prohibition was filed in this court. The petition sought to compel the circuit court to transfer the case back to equity.

The ordinance was published on February 14,1985, and the complaint was filed on February 19,1985. The motion to transfer was filed on February 21, 1985, a hearing was held on February 26, 1985, and the order of transfer was entered on March 1,1985. On the same day a motion to transfer back was filed and still later on March 1, 1985, the motion was denied. The present petition was filed on March 4,1985, and denied on the same day by this court. There has been no foot dragging by the parties or the courts.

Time is of the essence. I would exercise our superintending control over inferior courts as established in Article 7, Section 4, of the Constitution of the State of Arkansas and prohibit the election until it is held according to law. We have the authority to treat a pleading for what it is rather than what it is called by the parties. Ark. Stat. Ann. §§ 27-131 and 27-1160 (Repl. 1979); Edwards v. Brimm, 236 Ark. 588, 367 S.W.2d 433 (1963). In any event if the parties and courts continue to exercise all deliberate speed, this cause of action may yet be heard prior to the election. If the election is not being legally held I am sure we will so declare and take proper action.


text:
    Floyd E. SAGELY, Jr., Steve P. DONEHUE and Ricky G. DAVIS v. STATE of Arkansas
    CR 84-220
    685 S.W.2d 169
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985
    [Substituted Opinion delivered March 4, 1985[

      William M. Cromwell, for appellant.
    No response.
   Per Curiam.

The appellants Sagely, Donehue, and Davis, tendered a consolidated record for filing, but the clerk refused to file it on the ground that it was tendered too late as to some of the 14 named appellants. William Cromwell, counsel for these three appellants, insists that the tender of the record was timely and has filed a motion for a rule on the clerk to compel the filing of the record.

Each of the appellants is in a different position. In Sagely’s case the trial was in January, 1984, and notice of appeal was filed on February 21, but the judgment was not entered until July 31. The premature notice of appeal was timely, but the 90 days for the entry of an order extending the time for filing the record necessarily ran from the entry of the judgment. The order of extension was not entered until November 14, more than 90 days after July 31. The extension order was therefore invalid, and the record was tendered too late.

In Donehue’s case the j udgment was entered on July 31, the notice of appeal was filed on August 17, and the order extending the time for filing the record was entered within 90 days, on November 14. The record was tendered within the time allowed by the extension and was timely.

In Davis’s case the j udgment was entered on July 31, but the notice of appeal was not filed until September 4, which was past the 30 days allowed. Counsel is in error in arguing that three extra days for mailing are to be allowed under Civil Procedure Rule 6 (d). That provision does not apply to a judgment, which is not a pleading. A party is expected to keep himself informed about the entry of judgment. Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976). If an attorney receives a copy of the judgment three days after its entry, he is obviously not prejudiced by having only 27 days more in which to file a simple notice of appeal.

As to Donehue, the tender of the record was timely; so the record was properly filed in his case. As to Sagely and Davis, the tender was not timely. The motion is therefore denied as to them. If counsel will file another motion assuming full responsibility for the errors or showing other sufficient cause for granting the motion, the motion for a rule on the clerk will be granted. See Per Curiam opinion, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. (This opinion replaces an earlier one handed down on February 25, 1985.


text:
    Lonnie DUDLEY v. STATE of Arkansas
    CR 85-13
    685 S.W.2d 170
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985
    Pro Se Petition to Proceed in the Circuit Court of Lincoln County pursuant to Criminal Procedure Rule 37; denied.
    Appellant, pro se.

      Steve Clark, Att’y Gen., by: Michael E. Wheeler, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Lonnie W. Dudley stabbed a fellow inmate at Cummins Prison and was subsequently convicted by a jury of first degree battery, Ark. Stat. Ann. § 41-1601 (1977). He was sentenced as an habitual offender with five prior felony convictions to a term of thirty years imprisonment in the Arkansas Department of Correction. The Court of Appeals affirmed. Dudley v. State, CA CR 83-21 (September 21, 1983). Petitioner seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the grounds of ineffective assistance of counsel and the failure of the trial court to raise sua sponte the issue of his sanity.

Petitioner was examined before trial by the Southeast Mental Health Center and found competent. He contends now that he was not competent to stand trial and was mentally ill before, during and after the stabbing. He alleges that if counsel had investigated, he would have found evidence of his long history of mental illness and proof that he was under the influence of a drug when he stabbed the inmate. Petitioner argues that counsel should have put the evidence of his insanity before the jury even though he was found legally competent when examined at the mental health center.

Petitioner called several witnesses at trial to testify that he was watching television when the crime occurred. The main point of this petition appears to be that counsel should have employed an insanity defense instead of the alibi strategy which proved unsuccessful. If the question is one of mere trial strategy, then petitioner has stated no ground for granting postconviction relief. Questions of trial strategy are matters of professional judgment about which experienced advocates could engage in endless debate. As a result, such questions are not cognizable under Rule 37. Leasure v State, 254 Ark. 961, 497 S.W.2d 1 (1973).

Petitioner suggests, however, that counsel’s conduct was unreasonable and therefore should be considered fundamentally unsound representation. Petitioner lists witnesses who could have testified to his history of mental illness, drug use at the time of the offense and his general incompetence to stand trial, implying that an insanity defense was the only real choice open to counsel.

The United States Supreme Court has provided guidelines for assessing attorney performance in the area of investigation of a defense. These guidelines are applicable to petitioner’s case.

[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. Strickland v. Washington,_U.S._, 104 S. Ct. 2052 (1984).

In light of the psychiatric report finding petitioner legally competent, petitioner has failed to overcome the presumption that counsel’s decision to employ an alibi amounted to other than a reasonable professional judgment. The mere fact that an accused might have raised the question of mental competence at trial does not entitle him to a new trial or a hearing pursuant to Rule 37.

The allegation that the trial court should have injected the question of petitioner’s sanity into the proceedings and given an instruction on insanity as a defense is without merit. While a trial court should be alert to circumstances suggesting that an accused is not competent to stand trial, Drope v. Missouri, 420 U.S. 162 (1975), there is nothing in the petition before us to show that the court had any reason to question the petitioner’s competence.

After trial, counsel filed a motion to be relieved and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating there was no merit to the appeal of the judgment. Petitioner’s final assertion of ineffective assistance of counsel is that filing a “no merit” brief is tantamount to ineffective assistance. He contends that counsel should have raised on appeal the issues presented in this petition.

The decision to file an Anders brief is a matter of professional judgment. Counsel, not the appellant, must decide whether the issues raised at trial are meritorious. See Jones v. Barnes, _ U.S. _, 103 S. Ct. 3308 (1983). Moreover, the sanity issue was not raised at trial and could not have been reviewed on appeal. If there were other issues which appellant wished to raise on appeal, he had the opportunity to raise them himself since he was informed of his right to file a brief in accordance with Supreme Court Rule 11 (h) but did not do so.

Petition denied.


author: Jack Holt, Jr., Chief Justice.

text:
    Maxine Chrisco WEBB v. Bedford G. WEBB
    84-269
    685 S.W.2d 514
    Supreme Court of Arkansas
    Opinion delivered March 11, 1985

      Frierson, Walker, Snellgrove ér Laser, for appellant.

      Carolyn Lee Whitefield, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a divorce case which has previously been appealed to this court. Webb v. Webb, 262 Ark. 461, 557 S.W.2d 878 (1977). On remand, in 1979, the trial court issued a supplementary decree. Almost five years later the appellee filed a “Motion to Expunge” certain portions of that decree which was granted by the trial court. It is from that order of expungement that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29 (1) (j) as this is a second appeal.

The parties were divorced on September 26, 1976. The decree awarded property which had not previously been divided by the parties and $400 per month alimony for the appellant until February 1, 1977; provided for the payment of bills and insurance premiums; and ordered the appellee to pay the appellant one-third of his net income beginning February 1, 1977 through December21,1977 as alimony. An amended decree also awarded attorney’s fees and deposition costs. Jurisdiction was retained by the trial court for the February 1 through December 21 period to consider any petitions for modification and/or extension.

On October 21, 1976, the appellee filed a notice of appeal from that part of the decree relating to permanent alimony, support and.maintenance. This court reversed the decree on November 28, 1977. Webb, supra.

The trial court, on August 8, 1979, issued a supplementary decree based on the pleadings, previous orders, this court’s opinion, and stipulations of counsel. The supplementary decree found that due to the change in circumstances, no alimony should be awarded and instead the appellant was to receive a total of $4,025.00 for her interest in the appellee’s property, unpaid expenses under the original decree and attorney’s fees.

On June 21, 1984, the appellee filed a “Motion to Expunge” in which he argued that the portions of the supplementary decree of 1979 not relating to alimony were barred by the trial court’s prior decision since the case was remanded by the Supreme Court on the alimony issue only.

In granting the motion, the trial court agreed that it was bound by the supreme court “to make appropriate orders on the issue of alimony only” and was without jurisdiction on the other matters. The trial court was without jurisdiction to entertain this motion.

Appellee’s relief, if any, from the trial court’s order of August 8,1979, should have been sought through appeal or the procedure for modification of judgment. An appeal must be filed within 30 days from the entry of a decree or judgment. Ark. R. App. P. 4(a). The procedure for modifying a judgment is governed by Ark. R. Civ. P. 60(b) which provides that the judgment may be modified within 90 days after it’s entered. Appellee should have acted within the time allowed, rather than five years later. Accordingly, the trial court is reversed and the order of expungement of the August 8, 1979 order is dismissed.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Cleofas LIMON v. STATE of Arkansas
    84-202
    685 S.W.2d 515
    Supreme Court of Arkansas
    Opinion delivered March 11, 1985

      Douglas W. Parker, for appellant.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The Controlled Substances Act was amended in 1981 to provide for the forfeiture of all moneys used or intended to be used to facilitate a violation of the Act. The amendment also provides that all moneys found “in close proximity” to forfeitable controlled substances or to forfeitable drug manufacturing or distributing paraphernalia are presumed to be forfeitable. The burden of proof to rebut the presumption is on the claimant to the property. Ark. Stat. Ann. § 82-2629 (a)(6) (Supp. 1983). Forfeitable property other than drugs includes equipment of any kind used or intended for use in delivering controlled substances and all property used or intended for use as a container for controlled substances. Section 82-2629 (a) (1), (2), and (3).

The question here is whether the State was entitled to confiscate $3,000 and $1,770 found in separate rooms in a house occupied by the appellant Cleofas Limón and by Jennifer Taylor, in Rudy, Arkansas. On Limon’s petition to release the money the circuit judge held that Limón is entitled to the return of the $3,000, but not of the $1,770. An appeal and cross appeal bring both issues to us under Rule 29 (1) (c).

Acting under a search warrant, police officers searched the house and found on a shelf in the bathroom a plastic bag containing $1,000 and another containing $770. Those bags were next to a third bag containing an ounce of marihuana. The officers also found in a kitchen drawer a total of $3,000 in two plastic bags, along with “boxes of plastic bags and aluminum foil and so forth.” Other drug paraphernalia were on the kitchen table. Within ten feet of the money was a vial containing a residue of white powder which, according to the arresting officer, Limón identified as cocaine. Other indications of drug activity within the residence included marihuana residue in two suitcases, a tin box containing marihuana, a tray containing about a fourth of an ounce of marihuana, three pipes, and five vials.

Limón was later charged with possession of a controlled substance with intent to deliver. A forfeiture is nevertheless an in rem civil proceeding, independent of the criminal charge and to be decided by a preponderance of the evidence. Morley v. Fifty Cases of Whiskey, 216 Ark. 528, 226 S.W. 2d 344 (1950); Leach v. Cook, 211 Ark. 763, 202 S.W. 2d 359 (1947); Kirkland v. State, 72 Ark. 171, 78 S.W. 770, 65 LRA 76, 105 Am. St. Rep. 25, 2 Ann. Cas. 242 (1904). This being a civil case, we set aside the trial judge’s findings if they are clearly erroneous. A.R.C.P. Rule 52 (a).

“In close proximity” simply means “very near.” For that reason it has been said that the meaning of the term in such a statute is to be determined on a case-by-case basis. Bozman v. Office of Finance of Baltimore County, 445 A. 2d 1073 (Md. App. 1982), aff’d 296 Md. 492,463 A. 2d 832 (1983). We agree with that approach and do not mean by this opinion to suggest rigid rules for fixing “close proximity” by a particular number of feet, by reference to particular rooms, or by any rule of thumb. Here the two plastic bags containing $1,770 were next to a bag of marihuana. The $3,000 was in two plastic bags in a kitchen drawer along with boxes of plastic bags and aluminum foil. Other drug paraphernalia were on the kitchen table; the cocaine vial was nearby. We think the preponderance of the evidence places all the money, not merely the $1,770, in close proximity to controlled substances or drug paraphernalia. That being true, all the money is presumed under the statute to be forfeitable. There is no burden on the state to show separately a specific intent that the money is to be used in exchange for drugs, because the statute provides that money found in close proximity to forfeitable articles is “presumed to be forfeitable.” § 82-2629(a)(6), supra.

The question, then, is whether Limón and Ms. Taylor overcame the presumption. The two, though not married, had lived together for five years and regarded their property as belonging to them both. They testified that the total of $4,770 had come from the sale of a car six months earlier. They did not explain why they had kept such large sums in plastic bags for so long, except that Ms. Taylor did say, “I just don’t desire to open a bank account.” At one point she said that the car had been in her name and that the money was hers, but otherwise she referred to both the money and the car as being their property. The trial judge evidently did not accept Ms. Taylor’s claim to sole ownership, for he forfeited the $1,770 found in the bathroom. He seems to have overlooked the statutory provision that money is subject to forfeiture if found in close proximity to drug paraphernalia, for his written opinion mentioned only proximity to controlled substances.

There were also strong indications that the money was to be used immediately for the purchase of drugs. At the time the house was searched, both Limón and Carl Jacobs were arrested there. An officer testified that Limón told him at the time that he was negotiating to buy marihuana from Jacobs for $400 a pound. Called back to the witness stand to rebut that statement, Limón was evasive. He admitted having told the officer that he wouldn’t give more than $400 for marihuana and having said, “Well, it’s probably not worth more than $400.” When Jacobs was arrested along with Limón, Jacobs had a plastic bag of marihuana on his person and 15 pounds of it in his vehicle outside the house. When we consider the evidence of joint ownership, the proof of extensive drug activity in the house, Limon’s apparent negotiations to buy marihuana at $400 a pound, and the close proximity between the $3,000 and the cocaine and drug paraphernalia in the kitchen, we are convinced that the preponderance of the evidence clearly shows that the $3,000 as well as the $1,770, was subject to forfeiture.

Affirmed on direct appeal, reversed on cross appeal.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I agree with the majority that forfeiture is a civil action and is to be decided by a preponderance of the evidence. I further agree that we are not supposed to upset the trial judge’s findings unless they are clearly erroneous. I cannot understand why the majority believes that the trial court was clearly in error. Apparently the decision is based primarily on the fact that the $3,000 was found in a plastic bag in the kitchen. Officers also found aluminum foil and no doubt knives, forks and spoons. Why not go ahead and forfeit the china, utensils and the oven, which no doubt were in close proximity to the plastic bags and aluminum foil? It seems to me that the trial court’s decision was based upon that portion of Ark. Stat. Ann. § 82-2629(a)(6) which states in part: “[N]o property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or ommission [sic] established by him to have been committed or omitted without his knowledge or consent.” There is no evidence that the transactions here considered were with the owner’s consent or knowledge.

In order to forfeit this $3,000, the trial court would have had to find that the money was furnished or intended to be furnished in exchange for a controlled substance, or that it was in close proximity to contraband or paraphernalia. If the appellant intended to buy a controlled substance, there is no evidence that this particular money would have been used. Why should he have used Ms. Taylor’s money when he had more than enough money readily available? I think the trial court was correct in ordering the other money forfeited because it was in close proximity to controlled substances and paraphernalia. Jennifer Taylor testified without contradiction that this money was hers and was to be used to purchase a car. She furnished undisputed evidence that she had received more than this amount of money for the sale of her car. There is absolutely no evidence in the record that she was in any way involved in dealing in controlled substances. She was neither charged nor arrested. It seems abundantly clear to me that Ms. Taylor overcame the rebuttable presumption, if such presumption applies. It must be remembered that before the presumption can arise, there must be evidence that this particular money was furnished or intended to be furnished in exchange for a controlled substance or was in the proximity of drug paraphernalia. It is a cardinal principle that forfeitures are not favored and statutes imposing forfeitures must be strictly construed. It seems to me that the $1,700 found in close proximity to one ounce of marijuana was the type of property the legislature intended to be forfeited. The majority, in my opinion, had to resort to conjecture and speculation that the $3,000 did not belong to Ms. Taylor, in spite of the fact that appellant stated he considered what was hers to be his also, or that it was intended to be exchanged for a controlled substance. Next, I suppose all containers, on the premises, including cooking utensils, will be forfeited if a gram of cocaine or a marijuana roach is found in an ashtray or is deposited on the property without the knowledge or consent of the owner. In my opinion the trial court was absolutely correct in finding the presumption did not apply to the $3,000 or that if it did the owner overcame the presumption by proof that any dealing involving her money was without her knowledge and consent. Such transactions of a spouse take away the property or money of the other spouse when such spouse is completely innocent. There is no due process of law in such cases.

I would affirm the decision of the trial court.


author: George Rose Smith, Justice.

text:
    TRUCK TRANSPORT, INC. v. MILLER TRANSPORTERS, INC.
    84-271
    685 S.W.2d 798
    Supreme Court of Arkansas
    Opinion delivered March 11, 1985

      Lincoln & Orsini, P.A., by: Bob Lawson, Jr., for appellant.

      Henry & Duckett, by: James M. Duckett, for appellee.
   George Rose Smith, Justice.

The question is: In the circumstances of this case, was the appellant, Truck Transport, entitled to appeal to the circuit court from an order of the Arkansas Transportation Commission without first filing a motion asking the Commission to reconsider its decision? The circuit court held that Truck Transport, by failing to ask for a reconsideration of the Commission’s decision, had not exhausted its administrative remedies. The appeal to the circuit court was accordingly dismissed. Our jurisdiction of the case is under Rule 29 (1) (c).

Truck Transport and the appellee, Miller Transporters, successfully opposed the application of a third contract carrier for authority to transport bauxite and lime. The Commission, however, in its order denying that application, apparently went beyond the issues in the matter by unexpectedly enlarging Miller Transporters’ authority to transport cement and bulk lime. Truck Transport’s appeal to the circuit court was based on the contention that Miller Transporters’ authority had not been in issue, that no hearing had been conducted on that matter, and that the Commission’s enlargement of Miller Transporters’ authority as a contract carrier should therefore be set aside.

There is no statute or Commission rule requiring a litigant to file a motion for reconsideration or a petition for rehearing as a necessary condition to an appeal to the circuit court. We are not laying down a rule that such a step is ordinarily necessary. To the contrary, it would be pointless to compel a litigant to incur the trouble and expense involved in the presentation of a motion simply repeating arguments already heard and rejected.

Nevertheless, in this case the circuit court was right in holding that the Commission should have been given an opportunity to reconsider its action. The Commission’s procedural rules would have permitted such a request, either by petition or by formal complaint. Even though the Commission’s enlargement of an existing authorization may have been unexpected and beyond the issues, the Commission should have been afforded an opportunity to correct its asserted error. Our discussion in Ark. Cemetery Board v. Memorial Properties, 272 Ark. 172, 616 S.W. 2d 715 (1981), is applicable to the present case:

It is an elementary principle of administrative law that an issue must be raised at the lower level to be pursued on appeal. This was clearly stated in Hennesey v. SEC, 285 F. 2d 511 (3d Cir. 1960), where the court said:
It is well established that issues not effectively presented to an administrative agency, where ample opportunity to do so has been afforded, cannot be raised on appeal of that agency’s decision. This principle may be viewed as one facet of the judicial doctrine of “exhaustion of administrative remedies.”

The United States Supreme Court stated the same concept in Unemployment Comm’n v. Aragon, 392 U.S. 143 (1946):

A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the matter, make its ruling, and state the reasons for its action.

The analysis set forth in the foregoing quotation explains why we are affirming the trial court’s decision in the case at bar. In closing, however, we add that Truck Transport has not argued the case on its merits, having preferred to base its appeal on the procedural point alone. In fact, we could not reach the merits even if we were inclined to do so, because the parties by agreement have so severely abbreviated the record that facts bearing upon the merits of the Commission’s action are not before us.

Affirmed.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice,

text:
    Mary Belle WOODS v. Edwin P. WOODS, Jr.
    84-260
    686 S.W.2d 387
    Supreme Court of Arkansas
    Opinion delivered March 11, 1985

      Guy Jones, Jr., P.A., for appellant.

      Richard L. Smith, P.A., by: Daniel R. Carter, for appellee.
   Robert H. Dudley, Justice.

The issue on appeal is whether a former wife may maintain an action for alimony and marital property against her former husband, notwithstanding a valid absolute divorce previously procured by the wife in a foreign jurisdiction, solely upon constructive service.

Mary and Edwin Woods were married for 31 years. During the marriage Edwin retired from the Air Force after 20 years of service and moved to Faulkner County. Mary filed suit for divorce in Faulkner County on March 15, 1983. Edwin filed an answer and indicated that he would contest the action. Mary dismissed her complaint on August 12. Four days later, on August 16, she filed suit for divorce in New Mexico. Edwin made a special appearance and objected to personal jurisdiction. The New Mexico court ruled that it had jurisdiction over marital status but had no personal jurisdiction over Edwin. Mary later registered the New Mexico decree in Faulkner County and by this independent action sought alimony and to divide the marital property. The trial court held that Mary did not have an independent cause of action. We reverse.

The New Mexico decree granting a no-fault divorce is valid and entitled to full faith and credit recognition as terminating the marital status of the parties without a determination of fault. A division of marital property and an award of alimony were not at issue in the foreign jurisdiction. The foreign court did not have jurisdiction over both parties. See Knighton v. Knighton, 259 Ark. 399, 533 S.W.2d 215 (1976). No provision of the Federal Constitution compels this Court to recognize the foreign no-fault divorce as terminating the spouse’s cause of action for marital property or alimony. Pawley v. Pawley, 46 So. 2d 464, (Fla. 1950), 28 A.L.R.2d 1358, reh’g. den. 47 So. 2d 546, cert. den. 340 U.S. 866.

Mary voluntarily left the state of matrimonial domicile, Arkansas, and at the time of the divorce and at the time of the filing of this action was a resident of New Mexico. Edwin has been a resident of Arkansas at all material times. Neither party contests the application of the law of this forum. See Morris, Divisible Divorce, 64 Harv. L. Rev. 1287 (1951).

In Bowman v. Worthington, 24 Ark. 522 (1867), a case almost identical to the one at bar, this Court held that the right to maintain a proceeding for alimony cannot survive a dissolution of marriage. The rationale was that alimony after divorce was entirely dependent upon statutory law, and the “peculiar phraseology of our statute” provides for alimony only “when a decree shall be entered.” That statute, Arkansas Statute Ann. § 34-1211 (Supp. 1983), remains unchanged. However, twenty-four years later, in Wood v. Wood, 54 Ark. 172 (1891), we noted that a different statute, § 34-1201, contemplated two separate actions, either alimony or divorce. That statute provides: "The action for alimony or divorce shall be by equitable proceeding.” In Wood, Justice Hemingway wrote: “. . . the act contemplated two separate actions, and the legislature did not use the term ‘action for alimony or divorce,’ as the equivalent of ‘action for divorce, or action for divorce and alimony’.” Id. at 177. Since Wood, supra, we have consistently held that Ark. Stat. Ann. § 34-1201 provides that an independent action will lie for alimony. See e.g. Savage v. Savage, 143 Ark. 388, 220 S.W. 459 (1920); Harmon v. Harmon, 152 Ark. 129, 237 S.W. 1096 (1922). Also, since Wood, supra, we have not followed the Bowman statutory interpretation that alimony may be awarded only as an incident to divorce. However, all of the cases deal with alimony before divorce or as an incident to it. Ordinarily, a separate suit for alimony after a final decree of divorce is granted will not be successful because of the doctrine of res judicata. See Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). However, by applying the concept of divisible divorce, it becomes apparent that the doctrine of res judicata is not applicable to the issue of alimony in this case. Only Mary and the marital status were before the foreign court. That court had no jurisdiction over either Edwin or the issue of alimony. Therefore, in determining whether a separate action will lie for alimony after divorce, we only need to interpret our statute, quoted above. It simply refers to an “action for alimony or divorce.” It makes no distinction between before or after divorce, and so we must construe the statute as authorizing the action at either time. “It is a rule in this State, long and well established, that where a limited jurisdiction is conferred by statute, the construction ought to be strict as to the extent of the jurisdiction, but liberal as to the proceeding.” Wood, 54 Ark. at 178. Moreover, the statute at issue is a part of the original civil code. “The rule of common law that statutes in derogation thereof are to be strictly construed shall not be applied to the Code. The provisions of the Code, and all proceedings under it, shall be liberally construed, with a view to promote its object and to assist the parties in obtaining justice.” Ark. Stat. Ann. § 27-131 (Repl. 1979). Accordingly, we interpret Ark. Stat. Ann. § 34-1201 as allowing an independent proceeding for alimony when alimony could not have been considered in the divorce action. The trial court erred in summarily dismissing the action for alimony.

Similarly, that part of the complaint which asked for a division of marital property should not have been summarily dismissed. Prior to 1977, the Supreme Court of the United States ruled that spouses must be treated equally in the absence of a valid reason for making a distinction. In response, in 1979, the General Assembly enacted the law which created “marital property.” Ark. Stat. Ann. § 34-1214 (Supp. 1983). The legislation was intended to create a new form of property, and we must construe the act in harmony with that intent. The statute defines marital property as all property acquired by either spouse subsequent to the marriage with exceptions not important here. All marital property is to be divided equally unless a court finds that division is inequitable. The statute mandates that courts of this state divide marital property upon granting a divorce. This concept of the division of marital property requires that marital property be divided even when a divorce is granted upon constructive service in a foreign state. An independent action will lie for the division of marital property.

Appellant also contends that the trial court erroneously refused to compel answers to interrogatories. There is no merit in the argument. Rather, we note that Rule 33(e) provides that the cost of answering interrogatories may be assessed against a party who propounds an unnecessary number of interrogatories.

Reversed and remanded.

Hickman, J., dissents in part and concurs in part.

Darrell Hickman, Justice,

dissenting in part; concurring in part. This is not the first time Arkansas has recognized the concept of divisible divorce. In Rice v. Rice, 213 Ark. 981, 214 S.W.2d 235 (1948), we held that a husband who had obtained an Arkansas divorce upon constructive service and without provision for alimony was not allowed to assert the divorce as a bar to the wife’s action for arrearages arising from a prior New York decree for separate maintenance of which the husband had had notice. The doctrine of divisible divorce was developed in Estin v. Estin, 334 U.S. 541 (1948), a case which had very close facts to the Rice case and which we used as precedent there.

I have no quarrel with the doctrine. In both of the above cases, however, there were support orders entered prior to the divorce. Whether the rule should be extended to a case where there is no prior order of support is a question not presented by this case. There has been a divergence of views when that question has been presented. See Morris, Divisible Divorce, 64 Harv. L. Rev. 1287 (1951).

Under these facts I do not believe that the concept of divisible divorce should be applied, because to do so would ignore the policy reason underlying the concept. The reason for the development of the rule, that a valid foreign ex parte divorce terminates the marital status but not the right to alimony, is that the state of the spouse entitled to support has a legitimate interest in protecting the abandoned spouse from being left impoverished and becoming a public charge. See Estin v. Estin, supra, at 547.

Mrs. Woods is not an abandoned spouse. She was in a state which had jurisdiction over both her and her husband, she filed the divorce action here, but then voluntarily chose to dismiss the action and obtain the divorce in another state. She sought a forum where she knew she could not get an in personam judgment against her husband without his consent. It was her right to obtain a divorce quickly and without having to prove fault. However, she should not be allowed to return and litigate the issue of alimony under the concept of divisible divorce. She had the chance and by her own action abandoned that opportunity.

Similar reasoning was relied upon in Glennan v. Glennan, 197 Misc. 899, 97 N.Y.S.2d 666 (Sup. Ct. 1950) where the court refused to apply the doctrine of divisible divorce, holding that a wife who changes her domicile to obtain a valid ex parte divorce in another state cannot enforce a prior New York support order because by her conduct she had forfeited her right to support. The court stated, “The plaintiff cannot avoid the effect of her divorce in Ohio which she brought about.” See also McFarlane v. McFarlane, 43 Ore. 477, 73 P. 203 (1903).

Nor do I agree that the fact that Arkansas allows an “independent action for alimony” not incident to divorce dictates this result. Our cases have held that an action for alimony can be maintained where no divorce is sought or where one was sought but not granted. See Wood v. Wood, 54 Ark. 172 (1891); Savage v. Savage, 143 Ark. 388, 220 S.W. 459 (1920). The independent cause of action for alimony is now called an action for “separate maintenance.” See Rosenbaumv. Rosenbaum, 206 Ark. 865,177 S.W.2d 926 (1944). Those holdings and our recognition of the cause of action for separate maintenance have no bearing on this case where the wife’s own conduct prevented litigation of the alimony issue.

The majority cite those holdings to interpret Ark. Stat. Ann. § 34-1201 as allowing a proceeding for alimony before or after divorce. They say they are liberally construing the statute “to assist the parties in obtaining justice.” I’m confused as to which reason the majority actually relies on but none of those reasons (Arkansas having a cause of action for separate maintenance, liberal construction of the statute, or the concept of divisible divorce) allow the result reached here under these facts.

This is an opinion which will be relied upon to uphold forum shopping by divorce litigants and will cause some divorce proceedings to be endless. See Knighton v. Knighton, 259 Ark. 399, 533 S.W.2d 215 (1976).

I concur with that part of the opinion which allows the appellant to claim property rights.


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

text:
    Charles D. RAGLAND, Commissioner of Revenues, State of Arkansas, v. ALPHA AVIATION, INC. and Tom W. and Betty ROGERS
    84-214
    686 S.W.2d 391
    Supreme Court of Arkansas
    Opinion delivered March 11, 1985
    [Supplemental Opinion on Denial of Rehearing April 29, 1985.]

      Kelly S. Jennings, for appellant.

      Walker ir Campbell Law Firm, by: Gail Inman-Campbell, for appellee.
   Steele Hays, Justice.

The single issue presented by this appeal is whether a proposed tax assessment under Ark. Stat. Ann. § 84-4718 (Repl. 1980), if contested, will toll § 84-4715(a), which limits the time in which an assessment can be made to three years.

The appellant, Charles D. Ragland, Commissioner of Revenues, conducted a gross receipts (sales) tax audit of the books and records of appellee, Alpha Aviation, Inc., for the audit period April 1, 1977 through November 30, 1979. The appellant also conducted an individual income tax audit of the appellees, Tom W. and Betty Rogers for the years 1976, 1977, and 1978. Mr. Rogers was the president and majority shareholder of Alpha, and certain deductions involving Alpha were disallowed on Mr. and Mrs. Rogers’ individual income tax returns for the years in question. The appellees were sent a notice of proposed assessment as required by § 84-4718(a). After receipt of the notice the appellees pursued and exhausted the administrative remedies set forth in § 84-4720. At the termination of the administrative proceedings, which was more than three years after appellees had filed their returns, a notice of final assessment was sent to them as provided by § 84-4712 and § 84-4720.

Unsuccessful at the administrative level, appellees filed suit in chancery court pursuant to the provisions of § 84-4721. In a motion for summary judgment, appellees then contended that the term “assessment” as used in § 84-4715(a) actually referred to a notice of final assessment. The pertinent section of § 84-4715(a) provides:

Except as otherwise provided in this Act [§§ 84-4701 —84-4744], no assessment of any tax levied under the State tax law, shall be made after the expiration of three (3) years from the date the return was required to be filed or the date the return was filed, whichever period expires later. The Commissioner shall not begin court proceedings after the expiration of the three (3) year period unless there has been a previous assessment for the collection of the tax.

The appellees argued that under § 84-4715(a) the failure of the appellant to provide a notice of final assessment within three years from the time they filed a return effectively barred the appellant from further collection efforts.

The Chancellor found that appellees received a notice of proposed assessment within the three year statute of limitations. However, he also determined that the term “assessment” as used in § 84-4715(a) meant “final assessment.” As the final notice was not sent out until after the three year limitation the Chancellor issued an order abating all tax, penalty or interest assessed against the appellees. The Commissioner has appealed.

It is a general rule of construction that statutes establishing procedures for collection and assessment of taxes will be construed in favor of the government. “[A]s a general rule courts have been tolerant in construing statutes prescribing the procedure for assessment... A statute barring the state’s right to bring actions for taxes is usually strictly construed in favor of the government.” Sutherland, Statutory Construction, (3rd. Rev. 1974) § 66.06; see also 84 C.J.S. Taxation, § 393; R. J. Reynolds Tobacco v. Carson, 213 S.W.2d 45 (Tenn. 1948); Southern Pac. Ry. Co. v. State, 284 P. 117 (N.M. 1930). “The existence of a time limit beyond which the government may not sue to recover unpaid taxes is therefore dependent upon some express statutory provision, and provisions limiting the time for the collection of taxes are strictly construed in favor of the government.” Jensen v. Fordyce Bath House, 209 Ark. 478, 190 S.W.2d 977 (1945).

The primary rule in the construction of statutes is to ascertain and give effect to the intention of the legislature. It is the court’s duty to look to the whole act and, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. Shinn v. Heath, 259 Ark. 577,535 S. W.2d 57 (1976). We also decline an interpretation that results in absurdity or injustice, leads to contradiction, or defeats the plain purpose of the law. Carter v. Bush, 283 Ark. 16,677 S.W.2d 837 (1984); Berry v. Gordan, 237 Ark. 547, 376 S.W.2d 279 (1964).

Considering the Tax Procedure Act (§84-4701 — §84-4744) as a whole, and applying the applicable rules of construction and law, we find that under these circumstances the legislature intended the proposed assessment to toll the statute of limitations.

The limitation statute can serve two purposes. The first limits the time for which a taxpayer must be responsible for answering to an assessment. The notification for such an assessment can be accomplished through either the proposed or final assessment which states the amount owed. The second arises in the situation where a proposed assessment is made. In that case, the proposed assessment fulfills the first purpose; but a final assessment must also be sent out for reasons of certainty and finality. Here, the proposed assessment meets the substantive requirements of the limitations statute, but under the procedural scheme, when a proposed assessment is challenged, there is no provision for a final notice until the termination of the administrative proceedings. It is the obvious result as well as the general rule that the pendency of the hearing must toll the running of the statute, for the final assessment.

In this case an “assessment” defined in the statute as a “determination and imposition of the amount of any state taxes due and owing” [§ 84-4703(a)] had been made within the three year limitation through the proposed assessment sent to appellees. The substance of the requirement was met through the proposed assessment by informing appellees of the Commissioner’s action and the deficiency amount assessed. There is no surprise or prejudice to the taxpayer if the statute of limitation is effectively extended under these circumstances. To the contrary, it is only because of the procedure of redress afforded to and pursued by the appellees that the time when a final notice could be sent out was delayed. See Ark. Stat. Ann. § 84-4720. Under § 84-4720 the commissioner is not authorized to send out anything other than a proposed assessment once a taxpayer challenges that assessment under the act. He is not directed to send a final notice until the completion of the administrative proceedings. [§ 84-4720(d)].

As the legislature has provided proceedings for taxpayer redress which would be of uncertain duration, and at the same time given no authorization for a final assessment until the termination of such proceedings, we believe a tolling of the statute was assumed by the drafters of this legislation. Such a statutory scheme by its nature incorporates the analogous and established principle that the pendency of litigation will suspend the running of the statute of limitations. See Dendy v. Greater Damascus Bapt. Church, 247 Ark. 6, 444 S.W.2d 71 (1969). Where an individual is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right... 54 C.J.S., Limitations of Actions, § 247.

To hold otherwise and adopt the appellees’ interpretation would bring about an incongruent result. It would require the Commissioner to anticipate potential protests by a taxpayer, and somehow determine with accuracy and make allowance for the time required by the taxpayer to exhaust all administrative remedies provided under the act, and by calculating backwards from the limitation period, send out the proposed assessment early enough that the final assessment would fall within the three years allowed. Even if that could be done effectively and consistently, a doubtful assumption at best, contingencies could be expected to arise in many cases to delay the administrative process and prevent the giving of a final notice within the three year period. This interpretation would result in thorough confusion in the collection of taxes and deprive the Commissioner of the three year time period allotted him under our statutes dating back to 1929 in which to file a proposed assessment. (See Act 140 of 1939, § 4, and Act 135 of 1947, § 5). Such an implausible interpretation would put the Commissioner in a most difficult position and would in any case severely reduce the three year time period we think was plainly intended under the act to allow for an assessment on the taxpayer. It could not have been the intent of the legislature to allow the taxpayer to forestall the sending of a final notice past the deadline by protesting and pursuing an administrative remedy.

Appellees submit that § 84-4715(c) provides a means by which the taxpayer and the Commissioner may agree in writing to extend “the time within which the Commissioner may make a final assessment, as provided in Section 12,” and, therefore, § 84-4715(a) must be read as referring to the final assessment, rather than to the proposed assessment. We reject the argument. The provision is permissive only, allowing an extension by mutual agreement. Its evident intent is to provide a means of extending time limits under the act without forcing the taxpayer to protest. There may be situations where it is advantageous to both side to extend the time limits provided in the act.

We conclude the statute was tolled at the time the appellees initiated their administrative remedies pursuant to § 84-4719 and § 84-4720. The Chancellor was incorrect in his finding that because the final assessment was not sent within three years the Commissioner was precluded from any further tax collection efforts.

Reversed.

Hickman, J. and Purtle, J., dissent.

John I. Purtle, Justice,

dissenting. I understand only enough of the majority opinion to know I disagree with it. The only issue before us, as I understand it, is whether the Commissioner tolled the limitations of Ark. Stat. Ann. § 84-4715(a) by sending the taxpayers notice of proposed assessment pursuant to Ark. Stat. Ann. § 84-4718. I do not believe he did so.

When a statute is plain and unambiguous it needs no interpretation and we cannot seek other aids of interpretation. Ellison v. Oliver, 147 Ark. 252, 227 S.W. 586 (1921). Statutes and constitutional provisions are considered in the same manner. Snodgrass v. City of Pocahontas, 189 Ark. 819, 75 S.W.2d 223 (1934). We approach a statute or constitutional provision with the idea that it says that it means and means what it says. Hargraves v. Solomon, 178 Ark. 11, 9 S.W.2d 797 (1928). We should not be concerned with the wisdom or expediency of the Constitution or legislative enactments. It is our duty to carry out the provisions of the law as indicated by its plain language. Hargraves v. Solomon, supra. If it becomes necessary to construe a statute, it is our duty to ascertain and give effect to the intention of the legislature. Shinn v. Heath, 259 Ark. 577, 535 S.W.2d 57 (1976).

We are dealing here with that part of Ark. Stat. Ann. § 84-4715(a) which states: “The Commissioner shall not begin court proceedings after the expiration of the three (3) year period unless there has been a previous assessment for the collection of the tax.” The appellant’s whole argument appears to be that this statute does not mean what it says or say what it means. The argument boiled down to its simplest form is that “assessment” means “notice of proposed assessment” as described in Ark. Stat. Ann. § 84-4718 (a). Both terms are used in the same act; therefore, they surely have different meanings.

I think Ark. Stat. Ann. § 84-4715 (a) says that the commissioner cannot commence court proceedings unless an assessment was made before the expiration of three years. The statute is clear and unambiguous. Therefore, we should not resort to other aids in interpreting the act.

688 S.W.2d 301

I would affirm the trial court.

Hickman, J. joins in this dissent.

Supplemental Opinion on Denial of Rehearing April 29, 1985

Steele Hays, Justice.

In this supplemental opinion we address appellee’s continued insistence that Ark. Stat. Ann. § 84-4715(a) imposes on the Commissioner of Revenues a duty to issue the final assessment within three years or lose the right to pursue further efforts to collect a deficiency in income tax, an issue which has given us considerable difficulty. Restated, the question is whether the legislature intended by § 84-4715(a) to allow three years in which the commissioner could commence a challenge to the sufficiency of an income tax return, or to allow three years in which the commissioner must complete the process of challenging a return, including any time necessary for administrative review. We held in our opinion on March 11, 1985, that the three year limit applies to the commencement of the process, interpreting the word “assessment,” as used in § 84-4715(a), to refer to the proposed assessment. Of course, if the process must be completed in three years (unless extended by agreement between the commissioner and the taxpayer) then the word “assessment” refers to the final assessment.

We adhere to our original position for the reasons stated previously and because we believe the history of our income tax laws supports that conclusion. Our initial income tax legislation, the Income Tax Act of 1929 (Act 118) provided that if the commissioner determined that an income tax return was deficient he had two years within which to act by giving notice to the taxpayer, who then had thirty days in which to confer with the commissioner “as to the proposed assessment.’’ (Our italics.) See Section 26 of Act 118. No other administrative review was provided.

Ten years later, Act 140 of 1939 was adopted amending Act 118. As with Act 118, no other administrative review was provided, except that the taxpayer was given thirty days in which to confer with the commissioner over “the proposed assessment. ” The 1939 Act, however, did include a provision permitting the taxpayer and the commissioner to extend the time by written agreement. The amendments included a provision increasing the time allowed the commissioner to commence the process from two years to three years. This same limitation of time was included in the provisions of Act 401 of 1979, “The Arkansas Tax Procedure Act.”

The 1939 amendment makes it entirely clear the assessment which must occur within the three years is not the final assessment, as appellee urges, but the proposed assessment, as the amendment uses the identical language used in Act 118, i.e. “The taxpayer against whom such assessment has been made shall have an opportunity within thirty days to confer with the commissioner as to the proposed assessment.”

When the Tax Procedure Act of 1979 (Act 401) was adopted, this provision allowing three years appeared in restructured form (See § 15) and the rewording failed to make it clear that the assessment referred to is the proposed assessment and not the final assessment. However, nothing in Act 401 suggests there was any intent by the legislature to shorten the three year period which had prevailed over forty years in which the commissioner could commence his challenge to an income tax return by issuing the proposed assessment.

The petition for rehearing is denied.

       § 84-4718(a). If any taxpayer fails to file any return as required by any State tax law, the Commissioner, from any information in his possession or obtainable by him, may determine the correct amount of tax for the taxable period. If a return has been filed, the Commissioner shall examine the return and make any audit or investigation that he considers necessary. When no return has been filed and the Commissioner determines that there is a tax due for the taxable period, or when a return has been filed and the Commissioner determines that the tax disclosed by the return is less than the tax disclosed by his examination, the Commissioner shall propose the assessment of additional tax plus penalties, as the case may be, and shall give notice of the proposed assessment to the taxpayer. The notice shall explain the basis for the proposed assessment and shall state that a final assessment, as provided by Section 12 [§ 84-4712], will be made if the taxpayer does not protest such proposed assessment as provided at [by] Section 12 [§ 84-4719].


author: Steele Hays, Justice.

text:
    ALCOHOLIC BEVERAGE CONTROL DIVISION v. Edna BARNETT
    84-248
    685 S.W.2d 511
    Supreme Court of Arkansas
    Opinion delivered March 11, 1985

      Donald R. Bennett, for appellant.

      Milas H. Hale, for appellee.
   Steele Hays, Justice.

The Alcoholic Beverage Control Division has appealed from an order of the Pulaski Circuit Court reversing the Division’s cancellation of the permit of Delmer Barnett, appellee, to sell beer at his grocery store on Kellogg Road in North Little Rock, lying in Gray Township.

In 1981 the Division discovered that a part of Gray Township thought to be “wet,” was actually “dry” as a result of a 1956 local option election. That fact had not been reported to the Division and consequently, three permits to dispense alcoholic beverages in the dry area had been issued prior to the discovery, one of which was held by the appellee.

In September, 1982 the Director of the Division notified the three permittees of the problem and of a scheduled hearing. The facts developed before the Director were not disputed: in December, 1954 Gray Township held a local option election and voted dry by a vote of 528 to 473. In February, 1956 the Pulaski County Court entered an order altering the boundaries of several townships. Gray Township was enlarged and the added tract included the locations of the appellee and the other two permittees. The following November a wet-dry election was held in Gray Township, as newly composed, and the drys won, by a vote of 421 to 219. On these grounds the Director ordered the permits cancelled, allowing ninety days for the permit holders to apply for transfer to other locations.

On appeal to the Alcoholic Beverage Control Board the permit holders argued that the two publications of notice of the 1956 local option election were deficient in that the notices failed to include the full text of the proposal, as required by Ark. Stat. Ann. § 2-307 (Repl. 1976).

The published notices informed the public of a local option election affecting Gray Township to be held on November 6,1956, the date of the next general election. The notice stated, “the text of this measure and its ballot title read as follows:

GRAY TOWNSHIP INITIATIVE ACT NO. 1. AN ACT TO LEGALIZE THE MANUFACTURE, SALE, BARTERING, LENDING AND GIVING AWAY OF INTOXICATING LIQUOR WITHIN GRAY TOWNSHIP, PULASKI COUNTY, ARKANSAS. FOR PROPOSED INITIATIVE ACT NO. 1. _ AGAINST PROPOSED INITIATIVE ACT NO. 1__

Had the full text of the proposed act been published, it would have included the following:

“Be it enacted by the people of Gray Township, Pulaski County, Arkansas: Section 1. The manufacture, sale, bartering, lending, or giving away of intoxicating liquor is legal within Gray Township, Pulaski County, Arkansas, and License shall be granted for said purposes.”

On January 17, 1983, the Board reached a decision granting the permittees an additional five and a half months to find alternate locations, failing in which the permits would be cancelled as of June 30, 1983.

Appellee Barnett filed a petition in the Pulaski Circuit Court to review the Board’s decision pursuant to the Arkansas Administrative Procedure Act (Ark. Stat. Ann. § 5-701, et seq., Repl. 1976), and obtained a stay of the cancellation pending the appeal.

On June 25, 1984, the Circuit Court reversed the Board upon findings that the administrative ruling of the Board was based on an error of law in that the Board failed to recognize that the 1956 local option election was void because the notice failed to publish the full text of the proposed act as required by Ark. Stat. Ann. § 2-307 (Repl. 1976) and because the election in 1956 violated Ark. Stat. Ann. § 48-802, which requires that two years elapse between local option elections.

The Division’s appeal to this court is predicated on two arguments: the Circuit Court had no jurisdiction in 1984 to decide an election matter which occurred in 1956, and the Cirucit Court erred in ruling the 1956 election was void because two years had not elapsed, inasmuch as the boundaries of Gray Township changed between the two elections. We sustain the arguments.

The dispute over the timing of the two elections can be easily disposed of — it was not raised by the appellee or by either of the other two permit holders before the Board. In Arkansas Cemetery Board v. Memorial Properties, Inc., d/b/a North Hills Memorial Gardens, 272 Ark. 172, 616 S.W.2d 713 (1981), we said this is essential to a judicial review under the Arkansas Administrative Procedures Act. We quoted from a decision of the United States Supreme Court in Unemployment Commission v. Oregon, 329 U.S. 143 (1946):

A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the matter, make its ruling, and state the reasons for its action.

See, Truck Transport, Inc. v. Miller Transports, Inc., (decided March 11, 1985).

On the remaining point the Division submits that election contests must be brought within twenty days of certification (Ark. Stat. Ann. § 3-1001, Repl. 1976) and Circuit Court has no jurisdiction to settle such disputes nearly thirty years later. It points to those cases holding that compliance with pre-election requirements is mandatory before an election and becomes discretionary afterwards. Gay v. Brooks, 251 Ark. 565, 473 S.W.2d 441 (1971).

In response, appellee contends that this is not an election contest, but an action on review to prevent an administrative agency from enforcing the results of an election held on November, 1956 which was null and void. Phillips v. Rothrock, 194 Ark. 945, 110 S.W.2d 26(1937). We agree to this extent — this is a proceeding to review an administrative agency, brought expressly under the Administrative Procedure Act, but that very reason compels us to a different result. We need not decide the timeliness of this dispute, because the issue is not the power of the Circuit Court to examine the election results, but whether the Alcoholic Beverage Control Division has a duty under our statutes to look beyond the results of a wet-dry election, however recent or distant in time. The Circuit Court was not hearing this case de novo, but on review to determine whether the Division’s order was in excess of the agency’s authority, or was affected by an error of law, or was arbitrary, capricious or an abuse of discretion, or breached any of the six considerations listed in Ark. Stat. Ann. § 5-713(h) (Supp. 1983). We hve referred to the appellate review under the act as “narrowly prescribed” [Arkansas Poultry Commission v. House, 276 Ark. 326, 634 S.W.2d 388 (1982)] and as being “a role of limited scope” [City of Newport v. Emery, et al, 262 Ark. 591, 559 S.W.2d 707 (1977)].

While our statutes impose a variety of assignments on the Alocholic Beverage Control Division, they can be described in general as limited to the issuance and revocation of licenses for dispensing intoxicants and overseeing the enforcement of laws and regulations pertinent to that responsibility. We find nothing in the statutes suggesting that it is intended the Division, through its five member board who are not expected to be proficient in the law, to undertake the often difficult task of deciding whether election procedures have been complied with. That role has been handled, more or less effectively, by the judicial branch and we think the clear intent of our statutory scheme is such that the Division is not expected to look beyond the results of wet-dry elections in discharging the functions assigned to it. Whether appellee could still challenge the results of the 1956 election, we are not deciding, but the forum for that effort is the courts, rather than an administrative agency, and the Administrative Procedures Act makes express provision for recourse to other remedies. § 5-713(a).

The effect of the Circuit Court’s order would thrust a difficult and unintended assignment on the Division — to decide the legality of wet-dry election procedures. That would result in a dilemma for the Division. Section 48-802 directs the Division, in the event a majority of the electors vote against the sale of intoxicating liquors, to immediately cancel any permit for the sale of intoxicants within the territory covered by the election. Obviously, the Division cannot effectively enforce the provisions directly imposed upon it by law, if at the same time it must decide whether pre-election procedures were observed.

For the reasons stated, the order of the Circuit Court is reversed.

       Delmer Barnett died on August 4,1984 and this litigation proceeded under an order substituting Mrs. Edna Barnett as petitioner. ARCP Rule 25.