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

text:
    James D. JACKSON v. ARKANSAS RACING COMMISSION
    00-435
    34 S.W.3d 740
    Supreme Court of Arkansas
    Opinion delivered January 11, 2001

      Laser Law Firm, P.A., by: Sam Laser and Brian A. Brown, for appellant.

      Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Byron Freeland, for appellee Arkansas Racing Commission.

      Friday, Eldredge & Clark, by: James M. Simpson, for appellee Oaklawn Jockey Club.

      Dodds, Kidd, Ryan & Moore, by: Donald S. Ryan, for appellees Bush Williams and Jo Williams.
   W.H. “Dub” Arnold, Chief Justice.

The Court of Appeals certified this case for us to consider an issue of first impression, constitutional interpretation, and substantial public interest involving the construction of the Rules and Regulations of appellee Arkansas Racing Commission. Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. l-2(d) and l-2(b)(l), (3), (4), (5), and (6) (2000). Appellant, James D. Jackson, brings the instant appeal from a Pulaski County Circuit Court order affirming appellee’s decision disqualifying appellant’s horse, Valhol, from the Arkansas Derby run on April 10, 1999, at Oaklawn Park, in Hot Springs, Arkansas, and ordering the forfeiture, return, and redistribution of the purse, trophy, and first-place award.

Billy Patin, a jockey licensed by appellee, rode Valhol in the Derby at the request of appellant and Dallas Keene, the horse’s trainer. Although Valhol won the race by four-and-a-half lengths, Oaklawn Park officials discovered a “battery” on the track immediately following the race. A battery is a small electrical device that, if used, could alter the outcome of a race by increasing the horse’s speed. Possession of such an electrical device is prohibited by appellee’s Rules 1214 and 2128. While reviewing a videotape of the race, Oaklawn Park officials observed that Valhol’s jockey dropped a dark object on the track after crossing the finishing line.

Subsequently, track stewards investigated the incident and, following a hearing on May 5, 1999, suspended and fined the jockey, disqualified the winner, Valhol, and redistributed the purse money. Jackson appealed the stewards’ decision to the Arkansas Racing Commission. At a May 24, 1999 hearing, appellee upheld the stewards’ ruling. In particular, the commission found that “Billy C. Patin was in possession of an electrical device during the running of the Arkansas Derby.” Consequently, appellee also disqualified Valhol and ordered the purse money redistributed.

Next, Jackson appealed the commission’s decision to the Pulaski County Circuit Court. The circuit court affirmed. In the instant appeal, Jackson challenges the circuit court’s order and raises four points urging reversal. First, he claims that appellee’s rules do not authorize it to redistribute purse money. Second, he argues that such punishment is unwarranted because he was unaware that his jockey possessed an unauthorized electrical device, and appellee made no finding that the device was used or that the outcome of the race was altered. Third, appellant contends that the punishment is unconstitutional and a violation of his due-process rights. For his final point on appeal, Jackson submits that appellee and Oaklawn bear some responsibility for failing to protect him, and other horse owners, from the unauthorized actions of their jockeys. We find no merit in appellant’s arguments, and we affirm the circuit court’s decision.

I. Motion to strike Oaklawn’s brief and oral argument

As a preliminary matter, we consider appellant’s motion to strike Oaklawn’s appellate brief. First, we acknowledge that Oak-lawn has participated throughout the course of this litigation, without prior objection and with appellant’s consent. In fact, appellant urged Oaklawn to award the Derby prize money to him. Oaklawn opposed appellant’s position and presented the case against him, his trainer, and his jockey. Second, we note that appellant benefits from Oaklawn’s brief, which contains a supplemental abstract consisting of a condensation of the material rules at issue in this appeal. In this respect, appellant’s brief was insufficient by its failure to abstract all “matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” See Ark. R. Sup. Ct. 4-2 (2000).

Third, given appellant’s final point on appeal, urging this court to recognize that Oaklawn had a duty to protect him from his jockey’s actions, we are reluctant to deny Oaklawn the opportunity to respond to appellant’s argument. Accordingly, we deny appellant’s motion to strike Oaklawn’s brief. Similarly, we deny appellant’s untimely oral motion to strike Oaklawn’s oral argument.

II. Appellee’s authority to redistribute purse

Jackson argues that appellee’s rules and regulations do not authorize disqualification of a horse and redistribution of the purse for mere possession of a prohibited battery because no specific rule expressly creates authority for imposing those sanctions. However, appellant concedes that the rules permit such punishment when a horse tests positive for drugs. Given the rules’ silence on the specific circumstances raised in his case, Jackson reasons that the commission’s decision was erroneous.

The circuit court found appellant’s arguments unpersuasive. In a December 14, 1999 letter opinion, the court concluded that the record contained “substantial, almost overwhelming evidence, that jockey, Patín, possessed an electrical, and prohibited, battery powered device, which he discarded after the finish of the race.” In the court’s opinion, possession of the device, alone, was sufficient to sustain the sanction. The court determined that the sanctions against the jockey were justified in light of the commission’s responsibility to protect the public interest in the sport of horse racing. The court explained that racing fans have:

... a right to trust that the outcome of thoroughbred races will depend on the traditional considerations, including the natural abilities and characteristics of the horses, riders and trainers, and not on the effects of a battery powered device. Violation of that trust merits the sanction.

According to the court, “disqualification and redistribution are reasonable, even expected sanctions for violation of rules 1214 and/or 2128.”

The court also noted that the commission is vested with sole jurisdiction over the business and sport of horse racing in Arkansas and may take what action it deems necessary to supervise, regulate, and control, in the public’s interest, horse racing. See Ark. Code Ann. § 23-110-204(a)(6) (Repl. 1999). Moreover, pursuant to rule 2061, the stewards are empowered to interpret the commission’s rules and “to decide all questions not specifically covered by the Rules.” In sum, the court found that by entering Valhol in the Derby, Jackson knew or should have known that it was a violation for his jockey to possess an electrical device and that the stewards were authorized to suspend the jockey and disqualify the horse for such an infraction of the rules.

We agree with the circuit court’s findings. As the court observed, the rules contain a number of violations that contain no sanction following the rule. Nevertheless, the stewards are empowered to punish violations of those rules, including disqualification of a horse. Given the paramount interest of protecting the public and the broad authority of the racing stewards and the commission to regulate the sport of horse racing, we decline to conclude that the rules did not permit the instant sanctions.

III. Burden of proof

Appellant also objects to the sanctions imposed upon him because they resulted from an infraction committed by another (i.e., his jockey). For his second point on appeal, Jackson claims that the commission’s rules require proof that he either knew his jockey possessed the prohibited electrical device, that the device was used, or that the outcome of the race was altered. In response, appellee cites the applicable standard of review. An administrative agency’s decision may be overturned if the petitioner’s substantial rights have been prejudiced because the decision was: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by an abuse of discretion. See Ark. Code Ann. § 25-15-212(h) (1997). In light of the appellant’s burden of proof and the deference afforded agency decisions, appellee maintains that the circuit court’s decision should be affirmed.

Indeed, we must give the evidence its “strongest probative force in favor of the agency’s riding.” Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 357, 944 S.W.2d 456, 458-59 (1999). We have acknowledged that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze the unique legal issues affecting their agencies. Id. We have also held that between two fairly conflicting views, even if the reviewing court might have made a different choice, the board’s choice must not be displaced. Northwest Sav. & Loan Ass’n v. Fayetteville Sav. & Loan Ass’n, 262 Ark. 840, 847, 562 S.W.2d 40, 52 (1978).

Here, we cannot say that the commission’s decision was unsupported by the evidence or arbitrary and capricious. In fact, as the circuit court pointed out, the racing rules do not require proof of collusion because of the balancing in favor of the public’s interest. See D’Avignon v. Ark. Racing Comm’n, 279 Ark. 355, 651 S.W.2d 87 (1983). Giving appropriate deference to the agency’s interpretation of its own rules, we reject appellant’s argument that the commission failed to meet its burden of proof. We affirm the circuit court’s finding that possession of the device, alone, was sufficient to sustain the sanctions.

IV Constitutionality of sanctions

Jackson maintains that the sanctions imposed upon him were unconstitutional because appellee violated his due-process rights. Along the same lines as his burden-of-proof argument, Jackson insists that the sanctions are unlawful in the absence of evidence of complicity between Jackson and his jockey. As a result, he claims that the stewards’ and appellee’s actions were arbitrary and capricious. We find no merit in appellant’s argument.

Significantly, this court has recognized that liability may be imposed without fault and may be necessary for the protection of the public. See D’Avignon v. Arkansas Racing Comm’n, 279 Ark. 355, 358, 651 S.W.2d 87, 88 (1983). In D’Avignon, the appellant’s dog-trainer’s license was suspended for sixty days after a dog tested positive for drugs. The applicable rules made a trainer an absolute insurer of the condition of a dog’s entry, regardless of acts by third parties. On appeal, D’Avignon argued that the absolute-insurer rule was unconstitutional. We disagreed.

Although the facts in D’Avignon involved an absolute-insurer rule, the reasoning underlying our decision applies equally well in the instant case. We commented that:

the enterprises of horse and dog racing are especially susceptible to fraud and deceit because of the parimutuel wagering .... [I] t is imperative that society be afforded as much protection as possible to prevent abuses. For these reasons, we find the absolute insurer rule (Rule 1233) a constitutional and valid exercise of the police power of this state.

D’Avignon, 279 Ark. at 358, 651 S.W.2d at 88. Here, the commission’s rule 1214 expressly and plainly prohibited possession of an electrical device. Appellant’s jockey violated that rule. In fight of the state’s interest in affording the public “as much protection as possible to prevent abuses,” we cannot say that Jackson’s constitutional rights were violated in the instant case when sanctions were imposed upon him without proof of fault. See id.

Moreover, the commission was expressly authorized to “take such other action, not inconsistent with the law, as it may deem necessary or desirable to supervise and regulate, and to effectively control in the public interest, horse racing in the State of Arkansas.” (Emphasis added.) Ark. Code Ann. § 23-110-204(a)(6) (Repl. 1999); compare D’Avignon, 279 Ark. at 358, 651 S.W.2d at 88 (quoting Arkansas Racing Comm’n v. Hot Springs Kennel Club, Inc., 232 Ark. 504, 339 S.W.2d 126 (I960)). Possession of the device violated rule 1214, and no other rule required the commission to find that Jackson was aware his jockey possessed the device or that the device actually altered the race’s outcome. Given the rule’s violation, disqualification resulted. In conclusion, we agree with appellee that Jackson has not proven that the commission’s actions were arbitrary or capricious or that his constitutional rights were violated.

V. Duty to protect

Jackson’s final point on appeal concerns obligations the commission and Oaklawn may owe to horse owners to protect them from the unauthorized actions of their jockeys. Appellant suggests that appellee and Oaklawn should have utilized Rule 2064 to “search the person, or enter and search the stables, rooms, vehicles, or other places within the track enclosure at which a meeting is held ... of all persons licensed by the Commission, and of all employees and agents of any race track operator . . . .” Appellant argues that the failure to conduct a Rule 2064 search shifts liability to the commission and the track.

The Arkansas Racing Commission is the licensing authority for all jockeys in the State of Arkansas. However, as appellee points out, the commission has no duty, arising from any statute or other authority, to protect owners from the fraudulent or negligent acts of their own jockeys. Further, the commission illustrates that appellant was in the superior position to protect himself from his jockey’s fraudulent act. Jackson entered into a contract with Patin to ride Valhol in the Arkansas Derby. Jackson had the opportunity to monitor his jockey, and Valhol’s trainer had a similar opportunity. Apparently, Jackson and Valhol’s trainer were satisfied with Patin because he was permitted to ride in the Derby.

Oaklawn agrees with the arguments advanced by the commission. Oaklawn’s General Manager, Eric Jackson, also claims that protective measures were unnecessary because only two prohibited electrical devices have been discovered at the track in twenty years. In any event, appellant has failed to cite any authority to lend support to his theory that either the commission or Oak-lawn bears liability for a jockey’s corrupt, fraudulent, or prohibited practices- We agree that Jackson was in the best position to observe his jockey and-to make decisions about his suitability to ride Valhol in the Arkansas Derby. In the absence of any statute or rule imposing a duty on appellee or Oaklawn to protect appellant from his jockey’s negligent or fraudulent actions, we reject Jackson’s argument that such a duty was breached.

Affirmed.

Glaze, Imber, Thornton, and Hannah, JJ„ not participating.

Special Justices PAUL GEAN, Lee FERGUS, and W.H. DlL-LAHUNTY concur.

       Rule 1214, contained in the Arkansas Racing Commission’s Rules and Regulations’ section entitled “Corrupt, Fraudulent and Prohibited Practaces,” provides that no elctrical or mechanical device or other expedient designed to increase or decrease the speed of a horse, or that would tend to do so, other than the ordinary whip, shall be possessed by any one or applied by anyone to a horse at any time on the grounds of a franchise holder during a Meeting whether in a race or otherwise.
      Located under the section entitled “Owners and Trainers,” rule 2128 states that nno person licensed by die Commission shall have in his possession on or aobut any race track any appliance, electrical, mechanical, or otherwise which could affect the racing condition or speed of a horse.

       Rule 2068 authorises the stewards to impose fines or supensions, or both, for infractions fo the rules. Rule 2070 permits the stewards to suspend a person or disqualify a horse.


source: Caselaw Access Project

author: DONALD L. Corbin, Justice.

license: Public Domain

text:
    PRE-PAID SOLUTIONS, INC., and Grady Bowers v. CITY OF LITTLE ROCK; Larry Jegley, Pulaski County Prosecuting Attorney; and Randy Johnson, Pulaski County Sheriff
    00-794
    34 S.W.3d 360
    Supreme Court of Arkansas
    Opinion delivered January 11, 2001

      Dover & Dixon, P.A., by: Darrin O’Quinn, for appellant.

      Mark Pryor, Att’y Gen., by: Lori Freno, Ass’t Att’y Gen., for appellee Larry Jegley.

      Judy Kaye Mason, Deputy City Att’y, for appellee City of Little Rock.

      Karla Burnett and Amanda Mankin, for appellee Pulaski County Sheriff.
   DONALD L. Corbin, Justice.

The issue in this case is whether a certain type of telephone-card vending machine is an illegal gambling device or a lottery. Appellants PrePaid Solutions, Inc., and Grady Bowers filed a petition in the Pulaski County Circuit Court seeking a declaratory judgment that the machine is not a gambling device, under Ark. Code Ann. § 5-66-104 (Repl. 1997), or a lottery, under Article 19, Section 14, of the Arkansas Constitution. Appellants also sought an injunction to prevent Appellees, the City of Little Rock; the Pulaski County Prosecuting Attorney; and the Pulaski County Sheriff, from raiding Appellants’ businesses and attempting to prohibit persons from playing the games on these machines. The trial court denied Appellants’ requested relief and found that the machine is prohibited by law, either as an illegal gambling device or a lottery. Because this appeal presents an issue of substantial public interest, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (b)(4). We find no error and affirm.

The record reflects that Appellant Bowers operates a video rental store in Little Rock, where he had proposed installing telephone-card vending machines supplied by Appellant Pre-Paid Solutions, Inc. The machines operate as follows. A patron places a $1 bill in the machine, and the machine prints an “Emergency Long Distance Telephone Card” good for three minutes of long distance. At the same time, the machine registers a number of play credits. The patron may then play a game on the machine “similar to tictac-toe on a 3 x 3 matrix consisting of various symbols which may be lined up for additional points.” These points may then be redeemed for a cash prize ranging from $1 to $1,000. Additionally, after using the prepaid telephone card, the patron may mail the used card to Appellants for a supplemental drawing for various prizes such as electronics or airline tickets. If a patron does not wish to purchase a telephone card but still wants to play the game, he or she may use one of the self-addressed, stamped post cards provided at the store and mail it to Appellants for a free-play certificate. A patron may then redeem the free-play certificate for a $1 bill to play the game.

The record reflects numerous motions and briefs filed by all parties. Particularly, Appellants filed a motion for summary judgment, and, likewise, Appellee Larry Jegley, Pulaski County Prosecuting Attorney, filed a motion for summary judgment. During the hearings on the motions, the trial court received testimony from two witnesses, Appellant Bowers and Daniel Jester, director of business development for Appellant Pre-Paid Solutions, Inc. The trial court also viewed a demonstration of the machine. Based upon the evidence received, the trial court granted Appellee Jegley’s motion for summary judgment. The trial judge found that the machine was an illegal gambling device, reasoning: “I am convinced that this is a slot machine, that it is just pure and simple something that looks like, sounds like, acts like, works like a slot machine is a slot machine. And I think that’s what this is[.]” Appellants now appeal this finding.

Before we address the merits of Appellants’ arguments we must clarify the nature of the trial court’s order. Appellants view the order as one granting summary judgment, and they urge us to review it as such. We believe that Appellants’ characterization of the order is inaccurate for two reasons. First, the language of the order goes beyond the grant of summary judgment to Appellee Jegley, denying all relief requested by Appellants. Second, it is undisputed that the trial court received testimony from two witnesses and also viewed an in-court demonstration of Appellants’ machine. This court has consistently held that where, in a summary-judgment hearing, the trial court goes beyond the type of evidence provided in Ark. R. Civ. P. 56(c) and receives oral testimony, the matter is converted from a proceeding for summary judgment to a bench trial. See Hannon v. Armorel Sch. Dist. #9, 329 Ark. 267, 946 S.W.2d 950 (1997); Honeycutt v. City of Fort Smith, 327 Ark. 530, 939 S.W.2d 306 (1997). Accordingly, we review the judgment in this case as that resulting from a bench trial.

Our standard of review on appeals from bench trials is whether the trial judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. See Ark. R. Civ. P 52(a); Arkansas Transit Homes, Inc. v. Aetna Life & Cas., 341 Ark. 317, 16 S.W.3d 545 (2000); Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. We view the evidence in a light most favorable to the appellee, resolving all inferences in favor of the appellee. Id. Disputed facts and determinations of witness credibility are within the province of the factfinder. Id.

Appellants contend that the games on their machines are merely promotional sweepstakes similar to those offered by McDonald’s, Burger King, or Pepsi Cola. They argue that because they allow a patron to play the game for free, the element of consideration is missing and, thus, the game is not a lottery under Article 19, Section 14, of the Arkansas Constitution. They also argue that because no consideration is given, a patron does not risk anything of value by playing the game. We disagree.

This court has defined gaming or gambling as “the risking of money, between two or more persons, on a contest or chance of any kind, where one must be loser and the other gainer.” State v. Torres, 309 Ark. 422, 425, 831 S.W.2d 903, 905 (1992) (quoting Portis v. State, 27 Ark. 360, 362 (1872)). Similarly, a gambling device is “an invention to determine the question as to who wins and who loses, that risk their money on a contest or chance of any kind.” Portis, 21 Ark. at 362. Our Criminal Code prohibits certain types of gaming. See Ark. Code Ann. §§ 5-66-101 to -119 (Repl. 1997). Particularly, section 5-66-104 prohibits gambling or gaming devices:

Every person who shall set up, keep, or exhibit any gaming table or gambling device ... designed for the purpose of playing any game of chance, or at which any money or property may be won or lost, shall be deemed guilty of a misdemeanor and on conviction shall be fined in any sum not less than one hundred dollars ($100) and may be imprisoned any length of time not less than thirty (30) days nor more than one (1) year. [Emphasis added.]

Similarly, section 5-66-106 prohibits any person from “betting any money or other valuable thing or any representative of any thing that is esteemed of value” on any game prohibited under section 5-66-104.

This court has had few opportunities to interpret section 5-66-104 and its predecessors. Notwithstanding, two cases decided by this court are controlling of the issue in the present case: Rankin v. Mills Novelty Co., 182 Ark. 561, 32 S.W.2d 161 (1930), and Howell v. State, 184 Ark. 109, 40 S.W.2d 782 (1931). The machines at issue in both of those cases were very similar. When the patron deposited a nickel into the machine, he or she would receive a package of mints. The patron would also receive anywhere from two to twenty slugs, which could then be used to play a game of chance on the machine. The slugs had no other value and could not be used to purchase more mints. In Rankin, the game was designed to imitate a baseball game, while in Howell, the game consisted of reels that would spin showing pictures of fruits and bells. In both cases, this court concluded that the machines were illegal gambling devices.

In Rankin, this court held:

In order to constitute a gaming device under [§ 2630 of Crawford & Moses’ Digest], it must be one that is adapted or designed for the purpose of playing any game of chance or at which any money or property may be won or lost, and any one who shall bet any money or other valuable thing, or “any representative of any thing that is esteemed of value,” is guilty under § 2634 of Crawford & Moses’ Digest of betting on a gambling device. By § 2640 of the same chapter of the Digest gambling is defined as the betting of any money or any valuable thing on any game of hazard or skill. It is clear from these sections and the entire chapter on gaming that the word “property” as used in § 2630 and the words “valuable thing” mentioned in other sections are used synonymously, and that any valuable thing or “any representative of any thing that is esteemed of value” is “property” within the meaning of § 2630, supra.

182 Ark. at 562, 32 S.W.2d at 162. This court went on to hold that the right to play a game on the vending machine was a “property” right, within the meaning of § 2630, the predecessor to section 5-66-104. Additionally, this court noted that the machine was attractive to children such that they may be induced to spend their nickels not for the mints, but for the chance to play the game.

In Howell, this court relied on the decision in Rankin, but also cited with approval 27 C.J. 989 for determining when a slot machine is a gambling device:

[ W]here one who plays a slot machine stands to win or lose money, trade, or checks, by hazard of chance, the machine is a gambling device. The machine is a gambling device where its operation is such that, although the player in any event will receive something, he stands a chance to win something in addition.

184 Ark. at 111, 40 S.W.2d at 783 (citations omitted) (emphasis added). Accordingly, the Howell court held that the vending machine was a gambling device because the player stood to win something in addition to the package of mints.

The machine demonstrated below is remarkably similar to the machines examined in Rankin and Howell. When a patron puts money into Appellants’ machine, it immediately prints out a telephone card. After the card is printed, the amount of money that the patron put into the machine, whether it be $1, $5, etc., appears on the machine in the form of points that have a value of one penny each. The patron may then redeem the points, thus getting a full return on the money spent for the telephone card, or play the game for the chance to win additional money. To play the game, the player pushes a button that starts the rolling mechanism, much like a slot machine. The patron then pushes another button to stop the mechanism. If certain symbols line up upon stopping the mechanism, the player wins additional points. Again, the patron then has the option of either redeeming the points for money or continuing the play.

Pursuant to the clear language of section 5-66-104, Appellants’ machine is a gambling device designed for the purpose of playing a game of chance at which any money or property may be won or lost. There is no dispute that the machine is an invention that determines the question of who wins and who loses at a game of chance. See Portis, 27 Ark. 360. Nor is there any dispute that the game provides the player with the opportunity to win something in addition to the item for which he or she initially paid. See Howell, 184 Ark. 109, 40 S.W.2d 782. Additionally, under Rankin, 182 Ark. 561, 32 S.W.2d 161, the right to play the game constitutes “property” that may be won or lost in violation of section 5-66-104. Thus, it is of no consequence that Appellants offer patrons the opportunity to initiate the game without making a purchase. Moreover, once the free-play certificate is redeemed for a $1 bill, the player undoubtedly possesses property that he or she may risk by inserting the money into the machine to play the game. Every time the player elects to risk the value of the points awarded on the machine for another spin of the reels, he or she is risking that property for the chance to win additional money. We thus affirm the trial court’s finding that Appellants’ machine is an illegal gambling device. Because we affirm on this point, it is not necessary to reach the issue whether the game played on the machine is prohibited as a lottery under Article 19, Section 14, of the Arkansas Constitution.


author: ANNABELLE Clinton IMBER, Justice.

text:
    Michelle Elayne LANGLEY v. STATE of Arkansas
    CA CR 00-868
    34 S.W.3d 364
    Supreme Court of Arkansas
    Opinion delivered January 11, 2001

      Jeff Rosenzweig, for appellant.

      Mark Pryor, Att’y Gen., by: Misty Wilson Borkowski, Ass’t Att’y Gen., for appellee.
   ANNABELLE Clinton IMBER, Justice.

This matter comes to us upon our acceptance of certification from the Arkansas Court of Appeals. Michelle Elayne Langley was arrested by a deputy with the White County Sheriff’s office after he discovered marijuana, methamphetamine, and drug paraphernalia in her car. Accordingly, Ms. Langley was charged with two felonies for possession of methamphetamine and drug paraphernalia. She was also charged with one misdemeanor for possession of marijuana. Ms. Langley filed a motion to suppress all of the evidence seized from her car, but that motion was denied by the trial court. Pursuant to Ark. R. Crim. P. 24.3(b) (2000), Ms. Langley entered a conditional plea of guilty on all of the charges while reserving the right, on appeal from the judgment, to review the trial court’s adverse determination of her pretrial motion to suppress evidence. On each of the two felonies and one misdemeanor, she was sentenced to ten days confinement in the county jail to run concurrently. She was also sentenced to four years probation on the felony charges and one year probation on the misdemeanor charge.

On appeal, Ms. Langley argues that the trial court erred in denying her motion to suppress evidence. In bringing that appeal to the court of appeals, the Clerk of the Court required Ms. Langley to pay a $100 filing fee pursuant to Ark. Code Ann. § 21-6-401 (Repl. 1996). Ms. Langley paid the filing fee under protest and subsequently filed a motion for refund of the filing fee in the court of appeals. She argued that there is no statutory authority for the imposition of a filing fee in her case because it is a felony appeal. Thereafter, the court of appeals certified the motion to this court, and we accepted certification for the limited purpose of deciding Ms. Langley’s motion for refund of the filing fee. We ordered briefing, and the parties have complied.

Ms. Langley contends that there is no statutory authority for a filing fee in a felony appeal. The first rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Hogar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000). If the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id.

Arkansas Code Annotated section 21-6-401 (a)(1) provides that:

The Clerk of the Supreme Court shall be allowed and paid by the appellant or petitioner, in advance, in all civil actions and misdemean ors filed in either the Supreme Court or Arkansas Court of Appeals a fee of one hundred dollars ($100), which shall be full payment of all the costs in the proceedings.

(Emphasis added). Thus, a $100 filing fee is authorized by statute in the case of civil actions and misdemeanors, whereas felony cases are not specifically mentioned in section 21-6-401(a)(l). That distinction, however, is of no consequence in this particular case. While Ms. Langley correctly points out that there is no statutory authority pursuant to section 21-6-401(a)(1) for the collection of a filing fee in a felony case, she ignores the clear statutory authority for the collection of a filing fee in a misdemeanor case. Here, Ms. Langley has appealed from the judgment entered against her on the misdemeanor charge as well as the felony charges. Accordingly, the plain language of section 21-6-401(a)(l) authorizes the Clerk of the Court to collect a $100 filing fee from Ms. Langley in this case, and she is not entitled to a refund at this time..

Ms. Langley concedes that one of the offenses on appeal in this case is a misdemeanor, but argues that the filing fee is still not authorized because the felonies and the misdemeanor “stem from the same course of conduct.” Specifically, she argues that the imposition of a filing fee in this case would violate Ark. Code Ann. § 5-4-403(c)(l) (Repl. 1997), which states: “A sentence of imprisonment for a misdemeanor and a sentence of imprisonment for a felony shall run concurrently, and both sentences shall be satisfied by service of sentence for a felonyf.]” That statute simply has no relevance to the issue we are asked to decide; nor does it affect the plain language of section 21-6-401(a)(l).

Motion denied.

       Arkansas Supreme Court Rule 6-7(b) (2000) allows the appellant to recover the $100 filing fee upon reversal of a case.

       This court’s parenthetical statement in Miller v State, 229 Ark. 548, 549, 775, S.W.2d 79, 80 (1989), that no filing fee is required “when lodging an appeal on a criminal matter” is clearly obiter dictum.


author: TOM Glaze, Justice. Annabelle Clinton Imber, Justice,

text:
    Joe Michael COPELAND v. STATE of Arkansas
    CR 00-481
    37 S.W.3d 567
    Supreme Court of Arkansas
    Opinion delivered January 18, 2001

      Darrell F. Brown & Associates, P.A., by: Darrell F. Brown, for appellant.

      Mark Pryor, Att’y Gen., by: Jeffrey A. Weber, Ass’t Att’y Gen., for appellee.
   TOM Glaze, Justice.

Appellant Joe Michael Copeland appeals from a conviction of first-degree murder and his sentence of life imprisonment. He raises five points for reversal.

Copeland first contends that the verdict was unsupported by substantial evidence as to the element of intent. His argument is meridess. A person commits first-degree murder if “[w]ith a purpose of causing the death of another person, he causes the death of another person.” Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997). A person acts “purposely” with respect to his conduct “when it is his conscious object to engage in conduct of that nature or to cause such a result.” Ark. Code Ann. § 5-2-202(1) (Repl. 1997). On appellate review, it is only necessary for this court to ascertain that evidence which is most favorable to appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Thompson v. State, 338 Ark. 564, 999 S.W.2d 192 (1999).

Copeland killed Dennis Arnold at a place next to the Cossatot River near DeQueen where Copeland wanted to show friends an underwater cave containing quartz crystals he had found. Before going to the river, he asked an acquaintance, Gerry Deer, to go to Broken Arrow, Oklahoma, to fill up Copeland’s diving tank with air and to purchase three boxes of .22 shells. Copeland, Arnold, and Deer’s son, Paul Steffler, were present at the river, along with a handful of other people. One of those present, Billy Lawson, said that, as Copeland was loading his gun with the .22 shells, Copeland stated he was going to get Arnold. Prior to this threat, Copeland had complained that he was trussing $2,500.00, and he knew who took it. Lawson decided to leave and advised Steffler to do likewise, but Steffler wanted to swim. Before departing, Lawson told Steffler to tell Arnold of Copeland’s threat. Steffler subsequently communicated Copeland’s threat to Arnold, who then attempted to leave; however, as Arnold was leaving, Copeland shot him in the back of his head five times and once in the upper back. Steffler was present at the scene, although his back was turned at the moment Copeland fired the shots.

After shooting Arnold, Copeland asked Steffler to drive him to a swimming beach, and Steffler complied. After taking Copeland to the beach, Steffler immediately went to report the killing to the police, and Officer Cam Stringfellow was dispatched to locate Copeland. When the officer found and approached Copeland, Copeland said, “I know why you are here. I’m not going to give you any trouble. I shouldn’t have done it, but I was high on drugs.” Officer Stringfellow immediately advised Copeland of his Miranda rights, and took him into custody.

Copeland was again read his rights at the station by Deputy Sheriff Chris Brackett, and during his interview, conducted by Brackett and Arkansas State Police Investigator Lynn Benedict, Copeland confessed to killing Arnold and said he did it because he believed Arnold had stolen money from him. Copeland added that he felt good about killing Arnold because “that’s what happens when someone steals from him.” Also introduced into evidence was a letter Copeland mailed to his brother, wherein Copeland again admitted killing Arnold.

The foregoing evidence shows that Copeland repeatedly confessed to killing Arnold; in addition, Steffler was a witness to the murder. Moreover, his prior threat, the obtaining of .22 shells for his gun, and the fact that Arnold was shot in the back of his head and back six times, showed Copeland’s purposeful and intentional killing of Arnold. The intent necessary for first-degree murder may be inferred from the type of weapon used, from the manner of its use, and the nature, extent, and location of the wounds. Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996). Given the substantial evidence presented at trial, the trial court did not err in denying Copeland’s motion for directed verdict on the basis of insufficient evidence to prove intent.

In his second point for reversal, he claims the trial court erred in denying him a continuance for the purpose of obtaining a proper independent psychiatric evaluation and timely hearing as to his competency to stand trial. Here, Copeland’s first indication that a complete psychiatric evaluation might be necessary was evident in November of 1998, or about four months after the shooting, when Drs. Allan Newman and Charles Mallory wrote a letter indicating that Copeland demonstrated signs of mental illness and that inpatient evaluation would be required. Later in May of 1999, the doctors’ psychiatric report concluded Copeland was capable of cooperating with his attorney in preparation of his defense, he possessed the capacity to appreciate the criminality of his conduct at the time of the crime, and further noted, as family history, that Copeland’s brother had been diagnosed with bipolar disorder. The same report also reflected Copeland had suffered from amphetamine dependence, which was in full remission in a controlled environment. In sum, more than four months prior to trial, the State’s psychiatric report apprised Copeland of his competency at the time of the crime and as to his ability to stand trial, and the report included his drug dependence and family history of bipolar disorder. Nonetheless, he made no investigation of his own of these matters.

In Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997), this court was met with a similar situation where the defense had not been diligent in seeking information by requesting a continuance. There, the court held the defendant’s burden to prove the existence of a mental disease or defect could have been easily pursued on his own. Instead, the defense chose to employ the strategy of waiting to see what the State’s doctors would find, and only then did defendant Miller retain his own expert to double check the results. That is the situation in the present case. Also, for the same reason stated by the Miller case, we conclude that the trial court here did not abuse its discretion in denying Copeland’s motion for continuance in these circumstances.

In his next argument, Copeland submits that he should have been allowed to present a defense of mental disease or defect or alternatively to put on psychiatric testimony to negate the element of intent. Neither of these points has merit. First, under Ark. Code Ann. § 5-2-304(a) (Repl. 1997), whenever a defendant intends to raise mental disease or defect as a defense in a prosecution or put in issue his fitness to proceed, he must notify the prosecutor and the court at the earliest practicable time. (Emphasis added.) Here, Copeland had not formally raised the defense as late as one day before trial, but instead stated he reserved the right to raise the insanity defense until he could cross examine Dr. Mallory, since the State had not called Mallory as a witness at the pretrial hearing on the psychiatric evaluation. In fact, the trial judge had directed Copeland to give notice of such affirmative defense ten days before trial. However, Copeland chose not to do so, and only did so midway during the State’s case. In denying Copeland’s continuance motion, the trial judge made it clear that Copeland had the time and opportunity to obtain the information available, if any, to determine if he had a legitimate mental disease or defect defense. Both Mallory and Newman signed their forensic report which concluded Copeland was competent, and Newman properly testified and was cross examined regarding the doctors’ opinions as to Copeland’s competency.

As to Copeland’s alternative argument that he should have been able to put on psychiatric testimony to show he lacked the ability to form the requisite intent to commit murder in the first degree, this argument is easily disposed of because he never proffered any testimony that would have reflected on the State’s evidence bearing on intent. Midway through the guilt phase of the trial, when Copeland moved for permission to assert the insanity defense, he told the court that Dr. Newman’s testimony would be “relevant” to the issue of intent. However, other than a generalized reference to Dr. Newman’s testimony from the pretrial hearing, Copeland never proffered the substance of what the doctor’s testimony would have been.

In the recent case of Goff v. State, 341 Ark. 567, 19 S.W.3d 579 (2000), this court dealt with the subject of proffering testimony. There, Belynda Goff contended that she should have been allowed to offer testimony as to her innocence. There, the court stated the following:

To challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so we can review the decision, unless the substance of the evidence is apparent from the context. Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999) (citing Ark. R. Evid. 103(a)(2)); Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995). Certainly, as Mrs. Goff argues, it is evident from the context of the various arguments that she wished to testify about her innocence. However, absent a proffer of the testimony she sought to admit, we cannot tell how the testimony she claims she was precluded from giving differs from that which the trial court ruled admissible. Because she failed to proffer the testimony she wished to present, Mrs. Goff cannot now claim that the trial court erred by excluding it. Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999) (citing McGehee v. State, 338 Ark. 1532, 175, 992 S.W.2d 110, 124 (1999)).

Goff, 341 Ark. at 573. In the instant case, as in Goff, the trial judge was not apprised of the evidence or a proffer bearing on the intent issue now argued. As noted above, the only attempt at a proffer was defense counsel’s statement that the doctor’s testimony “is relevant to the guilt phase of this trial ... as it relates to the appropriate degree of the offense.” In sum, Copeland simply never offered the substance of Dr. Newman’s testimony upon which he intended to rely. Therefore, we hold that the issue was not preserved.

Copeland’s fourth point on appeal is that the trial court erred in permitting the victim’s former wife, Teresa Arnold, to read her statement to the jury during the sentencing phase. Victim impact evidence is authorized by Ark. Code Ann. § 5-4-602(4) (Repl. 1997). Such evidence is not an additional aggravating circumstance, but rather is relevant evidence which informs the jury of the toll the murder has taken on the victim’s family, Noel v. State, 331 Ark. 79, 93, 960 S.W.2d 439, 446 (1998), and is admissible unless it is so prejudicial to make the trial fundamentally unfair. Kemp v. State, 324 Ark. 178, 205, 919 S.W.2d 943, 957 (1996); see also Payne v. Tennessee, 501 U.S. 808 (1992).

In the instant case, Copeland specifically complains that, because Teresa Arnold was allowed to read her written statement, Copeland was unable to cross examine her. However, we fail to find any merit in this argument, since Teresa was present and was subject to any objections or questions Copeland wished to interpose. Moreover, we note that this court has approved the use of a video statement, Hicks v. State, 327 Ark. 727, 940 S.W.2d 855 (1997), and the reading of a poem, Noel, supra. Copeland further objects to Teresa’s hearsay testimony wherein she related that, “[a]fter the news [Dennis Arnold] died, his mother got sick and she has [sic] diabetes. And she just gave up. She was laying on the table and she told me she was tired, tired of trying and she passed away.” We first note that, when this statement was read to the jury, Copeland did not object and therefore has failed to preserve the issue. As the State points out, unobjected hearsay testimony may be considered by the trier of fact. See Brown v. State, 330 Ark. 603, 954 S.W.2d 273, 274 (1997).

Copeland also claims error occurred when Teresa was allowed to read a statement prepared by Teresa and Dennis Arnolds’ daughter, Amber. He protests that he was “not allowed to cross examine” her, but the record belies his claim. In fact, the trial judge subsequently agreed with Copeland and stated he believed Amber should be subject to cross examination if Copeland’s counsel wanted her as a witness. When the judge asked if Copeland wanted to cross examine her, counsel replied, “No.” We further note that, while Copeland made a general remark that “[Amber] was old enough to answer the questions,” he announced that he did not plan to object to any statement made by Amber. In these circumstances, Copeland fails to offer what prejudice ensued from the introduction of Amber’s statement through her mother.

In his final argument, Copeland contends that the trial court erred in denying his motion to suppress the statement he gave to the police. He appears not to challenge the voluntariness of his confession, but questions whether the confession was given knowingly, since there was evidence indicating he was on methamphetamine and said bizarre things at the time he made the statements. The State responds, stating Copeland failed to raise this point below, and therefore failed to preserve this point on appeal. While Copeland appears to agree that the specific issue was not argued at the suppression hearing, he submits that the State kept Dr. Mallory away so he could not be cross examined; thus Copeland was unable to develop the issue. We disagree.

Again, as we discussed earlier, the report by Drs. Newman and Mallory was introduced, and Newman properly testified concerning their opinions and was duly cross examined on them. The doctors opined that Copeland was sane at the time of the murder and was competent to stand trial. After hearing testimony of the police officers and Dr. Newman, and considering the doctors’ report, the trial judge concluded that, at the time of his arrest, Copeland was merely “acting crazy.” When a trial court’s denial of a motion to suppress is challenged, our court makes an independent examination of the issue based on the totality of the circumstances and views the evidence most favorable to the State. Benson v. State, 342 Ark. 684, 30 S.W.3d 731 (2000). In doing so, we believe the evidence clearly sustains the trial court’s ruling in denying Copeland’s motion to suppress.

The record has been examined to ensure that all rulings adverse to Copeland have been abstracted; they have, and no additional points appear to merit briefing.

For the foregoing reasons, we affirm.

IMBER, J., concurs in part and dissents in part; HANNAH, J., not participating.

Annabelle Clinton Imber, Justice,

concurring in part; dissenting in part. I agree with the majority on all points of appeal except its disposition of Mr. Copeland’s argument that during the guilt-innocence phase of the trial the lower court erred by refusing to admit psychiatric testimony to negate the essential element of purposeful intent as to the1 offense of first-degree murder. The majority states that “this argument is easily disposed of because he never proffered any testimony that would have reflected on the State’s evidence bearing on intent, or lack thereof.” It is well-settled that when challenging the exclusion of testimony, an appellant must make a proffer of the excluded evidence at trial unless the substance of the evidence is apparent from the context. Halford v. State, 342 Ark. 80, 27 S.W.3d 346 (2000); Ark. R. Evid. 103(a)(2). The purpose of such a proffer is so that the record may disclose the substance or purport of the excluded testimony thereby allowing this court to determine whether or not the rejection of the evidence was prejudicial. Woods v. State, 342 Ark. 89, 27 Ark. 367 (2000). Absent a proffer of the excluded testimony, we have no way of knowing whether the appellant was prejudiced by the challenged ruling. Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999).

Here, the record sufficiently discloses the substance or purport of the excluded testimony so that we may determine whether the rejection of the evidence was prejudicial. Even the State concedes that “Dr. Newman testified at the competency hearing that, at one time, the appellant showed signs of active mental illness.” That testimony was based on Dr. Newman’s psychiatric evaluations of Mr. Copeland. Therefore, the trial court knew the substance of Dr. Newman’s testimony when the guilt phase of the trial commenced because Dr. Newman had testified at the September 28, 1999 competency hearing the day before trial began. Additionally, Dr. Newman testified at the sentencing phase of the trial that Mr. Copeland showed a large number of symptoms of mental illness and symptoms of bipolar disorder. He also testified that Mr. Copeland suffered from delusional thinking immediately after the crime. Accordingly, I cannot agree with the majority that Mr. Copeland never proffered any testimony that would have reflected on the State’s evidence bearing on intent, or lack thereof. Even when mental disease or defect does not constitute a defense, evidence of it is relevant on the question of the defendant’s culpable mental state. Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986) (citing Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979)); Ark. Code Ann. § 5-2-303 (Repl. 1997). I likewise disagree with the majority’s statement that Mr. Copeland made no proffer during the guilt phase of the trial. The record shows that Mr. Copeland’s attorney, during his arguments to the court on this issue at the guilt phase, referred several times to the prior testimony of Dr. Newman “which was given on the 28th” during the competency hearing.

For the above reasons, I would address the merits of this point on appeal and determine whether the trial court committed prejudicial error by excluding expert testimony regarding Mr. Copeland’s mental illness during the guilt-innocence phase of the trial.

       In this letter, he claimed he killed Arnold because Arnold beat his wife.

       While this point bearing on Mallory’s unavailability to testify was raised below, it is questionable on whether Copeland specifically argues this issue on appeal.


author: TOM Glaze, Justice.

text:
    PIKE AVENUE DEVELOPMENT CO. v. PULASKI COUNTY, Arkansas; Floyd G. Villines, III, Pulaski County Judge; and B.A. “Mac” McIntosh, Pulaski County Assessor
    00-948
    37 S.W.3d 177
    Supreme Court of Arkansas
    Opinion delivered January 18, 2001
    [Petition for rehearing denied February 15, 2001.]

      Hankins, Hicks, & Blagg, by; Stuart W Hankins and A. Vaughn Hankins, for appellant.

      Karla M. Burnett, Amanda Mankin, & Karen M. McDonald, Pulaski County Attorney’s Office, for appellees.
   TOM Glaze, Justice.

Appellant Pike Avenue Development Co., Inc. (Pike Avenue), owns a shopping center in North Little Rock. The property was revalued in the summer of 1999, and Pike Avenue challenged the Pulaski County Assessor’s increased reassessment and the Pulaski County Board of Equalization’s approval of the increase in valuation of the property by appealing to the Pulaski County Court. In an order dated December 21, 1999, the county judge established Pike Avenue’s property evaluation at a 232% increase over the previous assessed value. On January 19, 2000, Pike Avenue filed a complaint and affidavit with the Pulaski County Circuit Court requesting the circuit court “to hear its appeal de novo.” Michael Fendley, President of Pike Avenue, averred in an accompanying affidavit that the purpose of the complaint was to challenge the assessor’s revaluation and to appeal the county judge’s December 21, 1999, order. Significantly, Pike Avenue did not refile its complaint, along with the record of the court proceeding, until February 29, 2000, or forty-one days after the county judge’s order.

The assessor and county judge moved to dismiss Pike Avenue’s appeal, asserting, among other things, that Pike Avenue had failed to perfect an appeal within the time and manner required by Inferior Court Rule 9. Pike Avenue responded, stating that Ark. Code Ann § 16-67-201 (1987), rather than Inferior Court Rule 9, governed the appeal, and that Pike Avenue complied with § 16-67-201 and the statutory requirement that allows an aggrieved party to file an appeal in circuit court within six months after a county court’s order is rendered. The circuit court rejected Pike Avenue’s argument, and dismissed its appeal from the county judge’s order, because the appeal was not perfected within the thirty-day period provided under Rule 9. We accepted jurisdiction of Pike Avenue’s appeal from the circuit court decision, since it includes the first impression issue of whether Inferior Court Rule 9 supersedes § 16-67-201.

A conflict unquestionably exists between Rule 9 and § 16-67-201. Under Rule 9, the appellant must file the record of the inferior court proceeding with the circuit court clerk within thirty days from the date of entry of the order or judgment; however, under § 16-67-201, an appellant must file an affidavit and prayer for appeal with the circuit clerk within six months after the judgment or order is rendered. In a situation where a conflict arises between rules established by this court and legislation enacted by the General Assembly, this court has adopted the general rule that, to protect what it holds inviolate, it defers to the General Assembly in such conflicts only to the extent that the conflicting court rules’ primary purposes and effectiveness are not compromised; otherwise, the rules remain supreme. See Price v. Price, 341 Ark. 311, 16 S.W.3d 248 (2000); Citizens for a Safer Carroll County v. Epley, 338 Ark. 61, 991 S.W.2d 562 (1999) (as a general rule, statutes are given deference only to the extent to which they are compatible with our rules, and conflicts which compromise those rules are resolved with our rules remaining supreme). Our court further held that an exception to the general rule exists when the General Assembly’s statutory rule is based upon a fixed public policy that has been legislatively or constitutionally adopted and has as its basis something other than court administration. Id.

Confronted with the clear conflict between Rule 9 and § 16-67-201, the trial judge could find no perceivable public policy reason for the General Assembly to provide a six-month period to appeal from a county court order; thus, he concluded Rule 9 governed Pike Avenue’s appeal and superseded all portions of § 16-67-201 to the contrary. We agree.

Pike Avenue points out that its right to appeal from county court to circuit court is constitutionally protected under Ark. Const, art. 7, § 33, but it advances no reason as to why such an appeal under § 16-67-201 should require six months rather than the general thirty-day period provided by Rule 9. Like the trial court, we are unaware of why appeals from county court decisions involving property assessment adjustments should require a longer period of time to appeal than any other inferior court decision.

Pike Avenue also argues that, while the Inferior Court Rules govern all civil actions in inferior courts, as do the Arkansas Rules of Civil Procedure where applicable, such rules are inapplicable because Pike Avenue’s action was a “special proceeding.” It submits that, under Rule 81(a) of the Arkansas Rules of Civil Procedure, the rules are cognizable in the circuit, chancery, and probate courts, except in those instances where a statute which creates a right, remedy, or proceeding provides a different procedure, in which event the procedure so specified shall apply. (Emphasis added.) Pike Avenue further urges that, because the right it pursues is constitutionally and statutorily provided and does not involve a common-law right, its action is a special proceeding governed by § 16-67-201.

The short answer to this argument is that our court rules simply do not recognize property adjustment actions pursued under Ark. Code Ann. § 26-27-317 (Repl. 1997) (under which Pike Avenue initially challenged its property revaluation), or appeals from county court orders to circuit court under Ark. Code Ann. § 26-27-318 (Repl. 1997), to be special proceedings. It is true that, at one time, our court considered actions brought in a county court to be “in the nature of special proceedings”; however, in 1997, the court retreated from that idea by amending Rule 1 of the Inferior Court Rules to delete that language which previously excepted county court actions from the rules. See In the Matter of Changes to the Rules of Civil Procedure, Rules of Appellate Procedure — Civil, Inferior Court Rules, and Arkansas Rules of Evidence, 326 Ark Appx. 1106, 1137 (1996); see also Addition to Reporter’s Notes, 1997 Amendment, Inferior Ct. R. 1 (2000). Thus, by the terms of Rule 1 of the Inferior Court Rules, such rules now govern the procedure in all civil actions in the inferior courts (including county courts) of this state. The court’s amendment of Rule 1 reflects that the appeal procedure in a county court action has court administration as its basis, as do those civil actions in and appeals from other inferior courts. See Price, 341 Ark at 316, 16 S.W.3d at 251; Cf. Weiss v. Johnson, 331 Ark. 409, 961 S.W.2d 28 (1998) (rules apply to a proceeding unless a statute, which creates a right, specifically provides a different procedure).

Finally, Pike Avenue argues that, even if the terms of Inferior Ct. R. 9 apply to its appeal to circuit court, it complied with the Rule’s requirement because its president, Michael Fendley, included a prayer for an appeal in his affidavit and complaint which were timely filed. Relying on some cases decided prior to the adoption of this court’;. Inferior Court Rules, Gibson v. Davis, 199 Ark. 456, 134 S.W.2d 15 (1939), and Tuggle v. Tribble, 173 Ark. 392, 292 S.W.1020 (1927), Pike Avenue argues that, even if its affidavit praying for appeal was improper in form or substance, but was filed timely, it could later amend the affidavit to correct it. Such arguments are unavailing. In Pace v. Castleberry, 68 Ark. App. 342, 7 S.W.3d 347 (1999), the court of appeals held that the thirty-day appeal requirement of Rule 9 is “both mandatory and jurisdictional,” and the failure to either file the record with the clerk or file an affidavit showing that the record has been requested from the clerk within those thirty days “precludes the circuit court from having jurisdiction over the appeal.” Pace, 68 Ark. App. at 344-45, 7 S.W.3d at 348-349 (citing Lineberry v. State, 322 Ark. 84, 907 S.W.2d 705 (1995), and Bd. of Zoning Adjustment v. Cheek, 328 Ark. 18, 942 S.W.2d 821 (1997)). The Pace court was correct. In the instant case, neither the record nor a proper affidavit was filed within the thirty-day period; therefore, the circuit court correctly dismissed Pike Avenue’s appeal.

        Weems v. Garth, 338 Ark. 437, 993 S.W.2d 926 (1999), is an example of a case in which the public policy was obvious. That case involved a statutory seven-day limit to appeal an election contest. We held that the statute, rather than our rules, governed, because disputes related to elections must be resolved quickly in order that public offices may be filled and the people served. Prolonged appeals run counter to that policy.

       We note that, although Pike Avenue spends considerable time suggesting the Arkansas Rules of Procedure apply to this case, those rules apply only when the Inferior Court Rules do not cover a situation. See Inferior Ct. R. 10. Because Inferior Ct R. 9 provides procedural guidelines for filing an appeal from an inferior court to circuit court, and the Rules of Civil Procedure do not, the Inferior Cou-t Rules govern.


author: DONALD L. Corbin, Justice. ROBERT L. Brown, Justice,

text:
    Chon Lenell JOHNSON v. STATE of Arkansas
    CR 00-756
    37 S.W.3d 191
    Supreme Court of Arkansas
    Opinion delivered January 18, 2001

      William R. Simpson, Jr., Public Defender; Andy O. Shaw, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   DONALD L. Corbin, Justice.

Appellant Chon Lenell Johnson appeals the order of the Pulaski County Circuit Court convicting him of disorderly conduct. For reversal, Appellant argues that there was insufficient evidence to support his conviction. The Arkansas Court of Appeals affirmed his conviction in Johnson v. State, 70 Ark. App. 343, 19 S.W.3d 66 (2000). We granted Appellant’s petition for review of that decision, hence our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999), cert. denied, 120 S. Ct. 1558 (2000); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). We find no error and affirm.

The record reflects that on the evening of May 1, 1998, Jacksonville Police Officer Mark Swagerty approached Appellant while he was standing on the corner of Ray Road. According to Swagerty, he became suspicious after Appellant began pacing and acting nervous, combined with the fact that it was 11:30 p.m. in a high-crime neighborhood. Swagerty testified that he exited his patrol unit and asked Appellant his name. Appellant responded, “Why are you fucking harassing me?” Based on Appellant’s cursing and violent demeanor, Swagerty decided to call for backup.

Several officers, including Officer Thomas Mayberry, responded to the scene. According to Mayberry, when he arrived, Appellant was flailing his arms around, yelling, and cursing. May-berry stated that he had had previous contacts with Appellant as a police officer. Mayberry attempted to calm him down. Mayberry testified that Appellant told him that he was on the corner waiting for a taxi that he had called. Mayberry attempted to verify Appellant’s claim about the cab, and during this time, Appellant alternately calmed down and then became agitated again. At one point, Mayberry witnessed Appellant exhibit a violent demeanor toward Swagerty by clenching his fists and pulling off his shirt. Mayberry stated that he interpreted these actions as “presassaultive cues.”

The situation between Appellant and the police escalated after Appellant began walking toward a nearby carport. Mayberry asked him to return to the street, but Appellant remained in the carport area. Then, according to Mayberry, Appellant began to sprint across the front porch area. Concerned that Appellant would try to force his way into the residence, the officers pursued him, and Mayberry administered a burst of pepper spray to his face. Appellant continued across the porch and wrapped himself around a wrought iron post on the front porch. Mayberry testified that after being unable to pull his arms loose from the post, he and another officer began to strike Appellant in the fleshy-tissue area of his forearms with their batons. After the officers removed Appellant from the post, they placed him on the ground, handcuffed him, and placed him under arrest. At some point during this conflict, the residents of the home stepped outside to determine the cause of the commotion. They identified themselves as Appellant’s aunt and uncle.

Appellant was charged with the misdemeanor offenses of terroristic threatening in the second degree; resisting arrest; fleeing; disorderly conduct; and public intoxication. He was convicted on all counts in Jacksonville Municipal Court on November 13, 1998. He appealed his convictions to the Pulaski County Circuit Court and waived his right to a jury trial. A bench trial was held on June 18, 1999, and the trial court ultimately found Appellant not guilty on the charges of terroristic threatening, fleeing, and public intoxication. With regard to the charge of resisting arrest, the trial court found Appellant guilty of the lesser offense of failure to submit to arrest. Finally, the court found Appellant guilty of disorderly conduct. The trial court imposed a ninety-day suspended sentence and a $200 fine for the charge of failure to submit to arrest. Appellant was then given a thirty-day suspended sentence and fined $100 on the disorderly conduct charge, with the sentences to be served consecutively. Appellant now appeals only the disorderly conduct conviction.

Appellant’s sole point on appeal is that there was insufficient evidence to support his conviction for disorderly conduct. He makes no challenge to the legality of the police’s initial encounter. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000); Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id.

Appellant argues that his words and conduct directed at the police officers did not rise to the level of “fighting words” as required for a conviction under Ark. Code Ann. § 5-71-207(a) (3) (Repl. 1997). He relies on the case of Houston v. Hill, 482 U.S. 451 (1987), for the proposition that the First Amendment protects a significant amount of verbal criticism and challenge directed at the police. The Hill case is inapplicable to the situation now before this court, however. There, the United States Supreme Court ruled that a city ordinance making it a crime for a person to “oppose, molest, abuse or interrupt any policeman in the execution of his duty” was unconstitutionally overbroad. Id. at 461.

This court distinguished the law struck down in Hill from the proscription set forth in subsection (a)(3), because the Arkansas statute proscribes only “fighting words.” Bailey v. State, 334 Ark. 43, 53, 972 S.W.2d 239, 244 (1998). At issue in Bailey was whether section 5-71-207 was overbroad, and thus unconstitutional. In upholding the constitutionality of the statute, this court acknowledged that subsection (a)(3) proscribes only “fighting words” in compliance with the United States Supreme Court ruling in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). In Chaplinsky, the test for determining whether language falls within this proscription is “what men of common intelligence would understand would be words likely to cause an average addressee to fight.” Id. at 573.

Here, Appellant argues that his statement “Why are you fucking harassing me?” did not rise to the level of fighting words. Section 5-71-207(a) (3) states in relevant part that a person commits the offense of disorderly conduct if he:

In a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response [.]

Both Officers Swagerty and Mayberry testified that Appellant was using profane language. It is true that the mere use of that language is not a sufficient basis for convicting Appellant of the crime of disorderly conduct. However, considering his language in conjunction with the totality of his actions, we believe there was sufficient evidence to uphold his conviction.

First, Appellant was not calmly standing around and uttering profane language. Instead, the evidence indicates that he was alternating between states of calm and irrationality. During those periods of irrationality, he was flailing his arms about, cursing loudly, and eventually demonstrating a violent demeanor toward Swagerty. Another important consideration is the fact that May-berry knew Appellant and was aware of his past charge of assaulting a police officer. We cannot ignore the fact that the police officers were dealing with a person who had previously assaulted another officer and was now cursing them. Viewing the evidence in a light most favorable to the State, we cannot say that the trial court erred in finding sufficient evidence that Appellant used obscene language in a manner likely to provoke a violent or disorderly response. Accordingly, Appellant’s argument that there was insufficient evidence to support his conviction is without merit.

Finally, we note that Appellant’s conviction for disorderly conduct could be affirmed by reviewing the evidence under section 5-71-207(a)(l) or (2). Appellant contends that his conviction was based solely on the fact that he cursed, and thus review must be limited to whether there was sufficient evidence to satisfy the elements of only subsection (a)(3). This argument is without merit. Nothing in the record reflects that Appellant’s conviction was based solely on the evidence related to his use of obscene language. The order simply reflects that Appellant was convicted of disorderly conduct, pursuant to section 5-71-207. Moreover, the trial court, in finding Appellant guilty of disorderly conduct, stated in relevant part: “I don’t believe at that point in time he has the right to cuss the police officer, and it kind of escalated down from there.” This language indicates that the trial court considered all the evidence presented in deciding Appellant’s guilt on the disorderly conduct charge.

In addition, this court is not constrained by the trial court’s rationale but may go to the record for additional reasons to affirm. Heagerty v. State, 335 Ark. 520, 983 S.W.2d 908 (1998); Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). Moreover, in Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996), this court held that where a record was vague as to which subsection a defendant was convicted of violating, there was no error committed because the subsections were merely different ways of proving a single violation. In the present action, there is only one crime of disorderly conduct, but several different ways of committing it.

Section 5-71-207(a)(1) provides that a person commits the crime of disorderly conduct when he engages in violent, threatening, or tumultuous behavior. Subsection (a)(2) provides that a person commits disorderly conduct when he makes unreasonable or excessive noise. Again, the evidence of Appellant’s erratic behavior, cursing, flailing his arms, and his demeanor toward Swagerty is sufficient to support a finding of guilt under either of these subsections. Accordingly, we affirm Appellant’s conviction for disorderly conduct.

Brown and Imber, JJ., concur.

HANNAH, J., not participating.

ROBERT L. Brown, Justice,

concurring. I concur with the affirmance because I agree with the State that Johnson was guilty of disorderly conduct by engaging in threatening behavior. See Ark. Code Ann. § 5-71-207(a)(1) (Repl. 1997). I further agree with the State that the record does not reflect that Johnson was charged with a specific subsection of the Disorderly Conduct statute. Moreover, Johnson appears to contest his disorderly conduct conviction generally without directing his attack at any specific subsection. Thus, I conclude that if substantial evidence supports a violation of any subsection of § 5-71-207, affirmance is required.

My problem with the majority opinion is that it concludes that substantial evidence was presented to support three categories of disorderly conduct. I disagree. The pertinent sections of § 5-71-207(a) read:

(a) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk thereof, he:
(1) Engages in fighting or in violent, threatening, or tumultuous behavior; or
(2) Makes unreasonable or excessive noise; or
(3) In a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response; or

With regard to subsection 2, there was testimony by Officer Mark Swagerty that Johnson was “cursing out loud in the street,” and Officer Thomas Mayberry confirmed that Johnson was yelling and cursing. But neither witness described the words used or the extent of the noise so as to bring into play disorderly conduct under § 5-71-207(a) (2).

In addition, though Johnson was clearly cursing, there was no evidence that the cursing was “in a manner likely to provoke a violent or disorderly response,” as required by § 5-71-207(a)(3). This case is categorically different from Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998), where the repeated cursing and racial slurs were highly antagonistic and clearly directed at the police officers. I concluded in that case that Bailey’s language was beyond the pale and constituted fighting words even for police officers who, as trained professionals, are expected to exercise a higher degree of restraint in the face of abusive language than the average citizen. Id. See also City of Houston v. Hill, 482 U.S. 451 (1987); Lewis v. City of New Orleans, 415 U.S. 130 (1974) (Powell, J., concurring). In the instant case, the only curse words repeated to the trial court by the police officers was the original question posed by Johnson and directed to Officer Swagerty: “Why are you fucking harassing me?” That is not enough to warrant a § 5-71-207(a) (3) violation in my judgment.

Accordingly, I would limit the basis for the conviction to Johnson’s threatening actions. Under that approach, discussions of § 5-71-207 (a) (2) and (3) violations would be unnecessary. This would have the additional salutary effect of removing inherent and troublesome First Amendment issues from this case that might come back to haunt this court in future cases.

For these reasons, I concur.

IMBER, J., joins.


author: ROBERT L. Brown, Justice.

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY v. MURRAY GUARD, INC.
    99-515
    37 S.W.3d 180
    Supreme Court of Arkansas
    Opinion delivered January 18, 2001

      Lizabeth Lookadoo and Barrett & Deacon, by: D.P. Marshall Jr., for appellant.

      The Laser Law Firm, P.A., by: Dan F. Bujjord and Donna L. Gay, for appellee.
   ROBERT L. Brown, Justice.

This appeal presents the issue stice. of equitable subrogation applies to a case where appellant St. Paul Fire & Marine Ins. Co. has paid benefits to a third party (the law firm of Wright, Lindsey 8c Jennings), which is not the insured of St. Paul. We hold that the doctrine does apply under these facts, and we reverse the order of the circuit court granting summary judgment in favor of appellee Murray Guard, Inc., and remand the case for further proceedings.

The facts are these. On January 24, 1994, at about 10:15 p.m., a fire broke out on the fourteenth floor of the Worthen National Bank Building. (Worthen National Bank of Arkansas has since been purchased in succession by Boatmen’s National Bank of Arkansas, by NationsBank, N.A., and by Bank of America.) The fire began in the offices of KPMG Peat Marwick and apparently was caused by a space heater under the receptionist’s desk at KPMG. As a result of the fire, several floors of the Worthen Bank Building were damaged, including some of the offices of the law firm of Wright, Lindsey and Jennings (hereinafter the Wright Law Firm).

Two lawsuits were filed that resulted from the fire. In 1995, the first lawsuit was filed by KPMG and Worthen Bank, and it alleged that an employee of Laidlaw, Inc., had been negligent in inadvertently turning on the KPMG space heater that caused the fire. The complaint further alleged that the employees of Murray Guard, Inc., a security service, had been negligent in failing to report the “odor of something burning” on the fourteenth floor for two hours or more. Plaintiffs KPMG and Worthen Bank sought damages in the amount of $2,804,834.

On February 23, 1996, St. Paul moved for leave to file a complaint in intervention in the KPMG-Worthen Bank lawsuit. In that motion and the attached complaint in intervention, St. Paul asserted that the Wright Law Firm was covered under an “errors and omissions” policy issued by St. Paul to the Ramsey, Krug, Farrell and Lensing Agency (hereinafter Ramsey Krug) for loss caused by business interruption. Because of an error and omission on the part of Ramsey Krug in not obtaining business interruption insurance for the Wright Law Firm, St. Paul further alleged that it paid the Wright Law Firm $402,671 for business interruption losses and that it was entitled to be equitably subrogated to the rights of the Wright Law Firm against Murray Guard for the money paid.

A second lawsuit was filed by the Wright Law Firm in 1996, and an amended complaint was filed in 1997. In that lawsuit, the Wright Law Firm sued (1) Worthen Bank for failing to have a sprinkler system, adequate fire alarm, or smoke detectors in the area of the fire; (2) KPMG for negligently using a space heater; (3) Laidlaw for inadvertently turning on the space heater and failing to use ordinary care when its employees smelled smoke; and (4) FTTWIC Management, Inc., for negligently managing the building in terms of fire safety. The suit prayed for damages in the amount of $910,060.10. St. Paul was shown as an intervenor in the Wright Law Firm lawsuit. The Wright Law Firm lawsuit and the Worthen-KPMG lawsuit were consolidated for purposes of trial.

Thereafter, many of the parties involved in the consolidated lawsuits settled in what is termed a global settlement. The salient features of the global settlement for purposes of this appeal are these. The Hartford Insurance Company (hereinafter The Hartford), which insured the Wright Law Firm for property damages and paid it $910,060, received $250,000 on its subrogation claim against the alleged tortfeasors, with the exception of Murray Guard. On June 25, 1998, The Hartford and the Wright Law Firm settled with Murray Guard and released the company from all future liability. The release stated that all subrogation rights of any insurance company had been paid in full. In the global settlement, St. Paul received $60,000 from certain alleged tortfeasors, with the exception of Murray Guard, and released them from future liability.

On July 23, 1998, Murray Guard moved for summary judgment on St. Paul’s complaint in intervention in the consolidated lawsuits and cited the release of Murray Guard by The Hartford and the Wright Law Firm in support of its motion. In its brief supporting the motion, Murray Guard asserted that St. Paul’s claim to equitable subrogation was invalid because it received no assignment or agreement from the Wright Law Firm to pursue the firm’s business interruption claim against Murray Guard. St. Paul responded to the motion and attached affidavits from a recovery specialist and its attorney to the effect that it did not agree to the release of Murray Guard by the Wright Law Firm and was not notified before execution of that release.

On January 7, 1999, the circuit court granted Murray Guard’s motion for summary judgment. In the court’s ruling from the bench, it stated that it was not basing its ruling on the Wright Law Firm’s release but rather on the fact that “every case seems to indicate that the right of subrogation is through the shoes of the insured.”

On April 22, 1999, final judgment in Worthen Bank’s remaining lawsuit against Murray Guard was entered following a jury trial. In special interrogatories, negligence was apportioned as follows: Murray Guard 32%; KPMG 21%; Worthen Bank (then NationsBank) 47%. KPMG was awarded $320,000 against Murray Guard for damages and interest. NationsBank was awarded no damages against Murray Guard.

St. Paul appeals the grant of Murray Guard’s motion for summary judgment and contends that it made the Wright Law Firm whole for its business interruption loss and, as a result, was entitled to equitable subrogation against Murray Guard which caused the losses by its negligence. We agree.

The critical issue in this case, as we see it, is whether St. Paul is entitled to equitable subrogation when the Wright Law Firm was not its insured but still was paid its business interruption losses by St. Paul under an errors and omissions policy issued to Ramsey Krug. According to Murray Guard, St. Paul cannot be subrogated to the Wright Law Firm’s claim because this would result in “two step subrogation” with St. Paul first being subrogated to the rights of its insured, Ramsey Krug, and then, second, to the rights of the Wright Law Firm.

By the admission of all parties, this is a novel question for Arkansas, and we turn first to an analysis of the general principles of the doctrine of equitable subrogation and next to cases that are apposite. In Hunter v. Jennings, 216 Ark. 886, 227 S.W.2d 946 (1950), this court set out general principles related to subrogation:

As a general rule any person who, pursuant to a legal obligation to do so, has paid even indirecdy for a loss or injury resulting from the wrong or default of another, will be subrogated to the rights of the creditor or injured person against the wrongdoer or defaulter.
Subrogation, an equitable doctrine taken from the civil law, is broad enough to include every instance in which one party pays a debt for which another is primarily answerable, and which in equity and good conscience should have been discharged by the latter, so long as the payment was made either under compulsion or for the protection of some interest of the party making the payment, and in discharge of an existing liability.

216 Ark. at 888-889, 227 S.W.2d at 947-948 (quoting Home Ins. Co. v. Lack, 196 Ark. 888, 120 S.W.2d 355 (1938); Gerseta Corp. v. Equitable Trust Co. of New York, 241 N.Y. 418, 150 N.E. 501 (1926)). Under subrogation, the payor who is the subrogee steps into the shoes of the payee and becomes subrogated to whatever rights the payee had against a wrongdoer.

This court has said that subrogation is an equitable remedy that rests upon principles of unjust enrichment and attempts to accomplish complete and perfect justice among the parties. Blackford v. Dickey, 302 Ark. 261, 789 S.W.2d 445 (1990); Baker v. Leigh, 238 Ark. 918, 385 S.W.2d 790 (1965). We have further said that the elements of subrogation are as follows:

1) a party pays in full a debt or an obligation of another or removes an incumbrance of another, 2) for which the other is primarily liable, 3) although the party is not technically bound to do so, 4) in order to protect his own secondary rights, to fulfill a contractual obligation, or to comply with the request of the original debtor, 5) without acting as a volunteer or an intermeddler.

Blackford v. Dickey, supra. Finally, we have said that subrogation is a doctrine of equity governed by equitable principles. Cooper Tire & Rubber Co. v. Northwestern National Cas. Co., 268 Ark. 334, 595 S.W.2d 938 (1980); Federal Land Bank of St. Louis v. Richland Farming Co., 180 Ark. 442, 21 S.W.2d 954 (1929). The doctrine is deeply rooted and flexible and extends as far as needed to do justice. American Surety Co. v. Vann,, 135 Ark. 291, 205 S.W. 646 (1918). The doctrine has as its basis the doing of complete and perfect justice between the parties without regard to form. Newberry v. Scruggs, 336 Ark. 570, 986 S.W.2d 853 (1999).

There are two kinds of subrogation known to the law: conventional subrogation and equitable subrogation. 73 Am. Jur.2d Subrogation § 2 (1974). Equitable subrogation is given a liberal application and is broad enough to include every instance in which one person, not acting voluntarily, has paid a debt for which another was primarily liable and which that other party should have paid. 73 Am. Jur.2d Subrogation § 14 (1974). Conventional subrogation, on the other hand, is founded on some understanding or agreement. 73 Am. Jur.2d Subrogation § 9 (1974).

In the case before us, St. Paul invokes the doctrine of equitable subrogation, which requires no writing or agreement in most instances. St. Paul advances the proposition that its direct payment of the business interruption losses to the Wright Law Firm fits squarely within the equitable subrogation principle and entitles it to relief against Murray Guard, which was primarily responsible for the loss. St. Paul further maintains that it paid the loss in full to the Wright Law Firm and did so because it was obligated under its “errors and omissions” coverage with Ramsey Krug and did not act as a volunteer. Furthermore, it contends that if Murray Guard is not held accountable by St. Paul, Murray Guard will receive a windfall in terms of totally avoiding liability for the Wright Law Firm’s damages caused by business interruption.

Murray Guard, on the other hand, claims that even though St. Paul paid the Wright Law Firm, it was not obligated to do so by contract and that St. Paul’s duty was owed only to its insured, Ramsey Krug. Thus, according to Murray Guard, St. Paul’s rights against Murray Guard are limited to whatever rights Ramsey Krug had against the security firm. Murray Guard urges that to hold otherwise would give St. Paul a potential windfall against Murray Guard because it was paid premiums for the “errors and omissions” coverage.

We will address the last point first. This court has made it clear that the receipt of premiums does not militate against an insurance company’s entitlement to subrogation. Page v. Scott, 263 Ark. 684, 567 S.W.2d 101 (1978). In Page, we said that that argument could be mounted against any insurer seeking recovery under a subrogation theory, and we added that we had never recognized the validity of such an argument. Furthermore, the prominent question in equitable subrogation is whether payment was made by the subrogee to the wronged party as opposed to whether a direct contractual relationship existed between the payor and the payee. In the case before us, St. Paul paid the business interruption loss directly to the Wright Law Firm, as it was obligated to do under its insurance contract with Ramsey Krug.

Both parties readily admit that there is a dearth of authority for deciding this case. Nevertheless, the authority that does exist favors the position of St. Paul. See American Surety Co. v. Vann, supra; Zannini v. Reliance Ins. Co. of Illinois, 147 Ill.2d 437, 590 N.E.2d 457 (1992); Shelby Mutual Ins. Co. v. Clark-Homes, Inc., 414 S.W.2d 650 (Tenn. Ct. App. 1966). In American Surety Co. v. Vann, the guardian of the estate of minor wards used the wards’ money to buy a car for himself from a car dealer. The car dealer knew that the guardian was using the wards’ money but sold him the car anyway. The guardian’s misdeed was discovered, and the surety company for its principal, the guardian, paid the wards’ estate what it had lost. The surety then sued the car dealer under the doctrine of equitable subrogation because the car dealer knowingly participated in the misappropriation of the wards’ funds. This court held that equitable subrogation applied. We further concluded that because the car dealer participated in the conversion, the car dealer was liable to the surety for the money received from the guardian. In short, we approved the ability of the surety to assert the claim of the wards, who it had paid for the loss caused in part by the car dealer. We did so even though the surety was not standing in the shoes of its principal, who was the guardian, in bringing the suit but rather in the shoes of the wards who it had paid. In the case before us, St. Paul was also not asserting subrogation on behalf of an insured or principal but rather on behalf of the Wright Law Firm which it paid under its contract with Ramsey Krug.

The case of Zannini v. Reliance Insurance Co. of Illinois, supra, involved an insured, Zannini, who filed a claim against Reliance Insurance Co. for the loss of certain jewelry by theft. Reliance Insurance denied the claim and asserted that Zannini did not have coverage because Nesslar, Zannini’s agent, had failed to procure the necessary coverage. Zannini then filed an amended complaint and alleged that a second insurance company (Employers Reinsurance Corp.), should pay the claim as the carrier of Nesslar’s errors and omissions policy. Employers Reinsurance did so. Employers Reinsurance then joined as a plaintiff with Zannini in the suit against Reliance Insurance. The main issue was whether Nesslar was acting as an agent of Zannini, so as to be personally liable for the loss, or acting as an agent of Reliance Insurance Co., so as to bind the insurance company on the policy. The trial court found that Nesslar was the agent of Zannini. In reversing, the Illinois Supreme Court held that Nesslar had the power as the agent of Reliance Insurance Co. to bind the company. Thus, the court held that Reliance Insurance Co. was liable for this claim. The pertinent point for purposes of our case was that Employers Reinsurance, which paid Zannini under the errors and admissions issued to the agent, was subrogated to the rights of Zannini for purposes of its litigation against Reliance Insurance.

Finally, in Shelby Mutual Ins. Co. v. Clark-Holmes, Inc., supra, the employer had insurance for workers’ compensation coverage through its carrier, Shelby Mutual. Shelby Mutual refused to pay a workers’ compensation claim of an employee because it contended that an agent had not properly bound the coverage. Michigan Miller Mutual Insurance Co. stepped in as the errors and omissions carrier for the agent and paid the workers’ compensation claim. The employer then sued Shelby Mutual on behalf of Michigan Miller and the agent and claimed that the plaintiffs were entitled to be reimbursed for the amount paid to discharge the employer’s workers’ compensation liability. The trial court agreed. On appeal, Shelby Mutual argued that the trial court erred in allowing subrogation rights to the agent and his errors and omissions carrier. The Tennessee Court of Appeals disagreed, however, and stated that “it seems equitable and just that defendant [Shelby Mutual] be required to pay to them [the employer and employee] what it should have paid to [the employer], or its injured employee. Otherwise, defendant would profit by its own wrong in violating its contract.” Shelby Mutual Ins. Co., 414 S.W.2d at 655. The opinion goes on to discuss the doctrine of subrogation as it applies according to the dictates of equity and good conscience and consideration of public policy. The court cited to Dixon v. Morgan, 285 S.W. 558, 560 (Tenn. 1926), for the statement that “[subrogation] will be allowed in all cases where the equities of the case demand it. It rests upon the maxim that no one shall be enriched by another’s loss, and may be invoked wherever justice demands its application [.]” Id., 414 S.W.2d at 655. Similarly, in the instant case, St. Paul seeks payment from the alleged wrongdoer as a result of paying the Wright Law Firm its business interruption loss under an errors and omissions policy.

Hence, in all three cases discussed above the payor of benefits to a wronged party, rather than its insured or principal, was subrogated to the rights of the payee against the alleged wrongdoer. That, of course, is the issue presented to us in the instant case. The trial court erred in refusing to allow St. Paul to enforce its right to equitable subrogation under the facts of this case, and we reverse on this point.

There is one additional matter, however. In its brief, Murray Guard appears to abandon the argument that the settlement between Murray Guard and the Wright Law Firm vitiates any subrogation claim by St. Paul. At oral argument, Murray Guard’s counsel stated:

I want to discuss for just a moment the settlement that was raised by Mr. Marshall. We don’t assert it on appeal as a basis for why St. Paul can’t recover. He is correct on that and that is clear in our brief. I think Judge Piazza was correct not to rely on that, but the setdement is of great significance here.

Counsel then posited at oral argument that St. Paul cannot be subrogated to a claim that has been released by the Wright Law Firm. St. Paul, according to affidavits filed in response to the summary-judgment motion, never agreed to the settlement or release and had no notice of either. St. Paul underscores in its brief that notice to a subrogee of a release is essential to any contention that the release is effective against the subrogee and cites us to Daves v. Hartford Accident and Indemnity Co., 302 Ark. 242, 788 S.W.2d 733 (1990); Floyd v. Home Ins. Co., 250 Ark. 915, 467 S.W.2d 698 (1971); and Sentry Ins. Co. v. Stuart, 246 Ark. 680, 439 S.W.2d 797 (1969). Clearly, the settlement and release were not a basis for the trial court’s summary-judgment order. Though Murray Guard’s position on the effect of the settlement and release in this appeal is somewhat ambiguous, we take the appellee at its word and do not consider the settlement or release between Murray Guard and the Wright Law Firm to be a separate issue in this appeal. We, therefore, refrain from addressing this point.

We reverse the order of summary judgment and remand this case for further proceedings. We acknowledge that St. Paul requests that we apply the percentage of Murray Guard’s liability (32%) determined at trial against its subrogation of $402,671 less the $60,000 received in the global settlement. That action would be premature on the part of this court and is a matter for the trial court’s consideration and determination.

Reversed and remanded.

Glaze and Imber, JJ., not participating.

Special Justice Joseph P. Mazzanti, III, and Special Justice Frank H. Bailey join in this opinion.

       Equitable subrogation is sometimes referred to as legal subrogation.

       The trial court specifically agreed that it was not relying on the release in its decision.