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

text:
    Chris PENNY, Bill Penny and Martha Penny v. Dana PHILLIPS, a Minor, By Her Next Friend, Jimmy Phillips
    89-2
    769 S.W.2d 4
    Supreme Court of Arkansas
    Opinion delivered May 1, 1989

      Laser, Sharp, Mayes, Wilson, Bufford & Waters, P.A., by: Brian Allen Brown, for appellants.

      Gibson & Hashem, by: Hani W. Hashem, for appellee.
   Steele Hays, Justice.

Following a verdict for the defendants in a personal injury suit, the trial court set the verdict aside and ordered a new trial. The defendants have appealed. Finding no abuse of discretion, we affirm.

Jimmy Phillips filed this suit on behalf of his daughter, Dana Phillips, a minor. The defendants, who are now the appellants, are Chris Penny and his parents, Bill and Martha Penny.

On the night of October 24,1986, Chris was driving a family vehicle with Dana riding as a passenger. The vehicle, a pickup truck, left the highway at a curve on Ridgeway Road in Pine Bluff and struck a tree, injuring both Chris and Dana. Evidently Dana’s injuries were more severe. The complaint alleges negligence by Chris Penny and negligent entrustment by Bill and Martha Penny, who also signed the driver’s license application of Chris Penny.

The testimony at trial is readily summarized: Mrs. Nancy Black witnessed the incident which happened about .10:00 p.m. She described the curve as “extremely sharp” and “real bad,” that twenty miles per hour would be fast coming around that curve. She saw the truck go off the road and into a ditch. She wasn’t sure if Chris Penny was hurt but she could hear Dana Phillips moaning. The ambulance, she said, arrived in five or ten minutes.

A police officer testified that the truck left the highway on the right, where the grass was wet and muddy, came back onto the highway and straight across the roadway and down into a ditch, striking a tree head-on. He said both driver and passenger were hurt. Chris Penny told him he did not see the curve until he entered it, that he left the road on the right shoulder, panicked, and the next thing he remembered was sitting on the tailgate of the truck after the accident.

Chris Penny testified that he and Dana were on a date. He said they had not been drinking, and that it had not been raining but the roads were wet. He said he wasn’t speeding but Dana “told me to slow down anyway,” which he did. “Then there was this street which cuts off the road. I got confused and went off the road onto the wet grass. There is a tree standing there, I swerved to avoid it and went off the opposite side of the road and down into the ditch.” He said his lights were on, but not on bright, adding, “I might have seen the curve better had I had the bright lights on.” He said Dana had nothing to do with the accident, but they might have been talking.

Dana Phillips testified that they were driving at a moderate speed, probably 25-30 miles per hour, that Chris didn’t realize the curve was there, went off on the right, tried to gain control and then went off to the left side into the ditch. The balance of her testimony related to her injuries.

After the jury returned its verdict, 11 to 1 for the defendants, the plaintiff moved for a new trial or for a judgment n.o.v. The trial court ruled that the verdict was clearly contrary to the preponderance of the evidence and granted a new trial pursuant to ARCP Rule 59(a)(6).

While we have said that a trial court may not substitute its view of the evidence for that of the jury, Brant v. Sorrells, 293 Ark. 276, 737 S.W.2d 450 (1987), that does not imply that he or she is without discretion in determining whether to grant a new trial. Clearly the trial courts have that authority under ARCP Rule 59(a)(6), providing that a new trial may be granted when the verdict is clearly against the preponderance of the evidence. Cases interpreting the rule are plentiful, e.g., Wilson v. Kobera, 295 Ark. 201, 748 S.W.2d 30 (1988); Stephens and Morten v. Saunders, 293 Ark. 279, 737 S.W.2d 626 (1987); Brown v. Wilson, 282 Ark. 450, 669 S.W.2d 6 (1984); Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). The broad discretion that once existed was narrowed somewhat by the 1982 amendment to Rule 59(a)(6), which inserted the word “clearly,” see Clayton v. Wagnon, supra, but the decision is still an exercise of discretion and will not be disturbed on appeal unless discretion has been abused. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986). Moreover, where the trial court has ordered a new trial, it is more difficult to establish an abuse of discretion than when a new trial is denied. Adams v. Parker, 289 Ark. 1, 708 S.W.2d 617 (1986).

Having examined the evidence carefully, we conclude that the appellants have failed to show that the trial court’s discretion was abused. In addition to having heard the testimony in its entirety, the trial court had the benefit of photographs and a diagram of the accident scene which are not in the abstract. There is no contention that Dana Phillips was in any manner at fault and the testimony of Chris Penny, however one may choose to interpret it, points unerringly to a failure to maintain a proper lookout or a failure to maintain proper control over his vehicle as proximate causes of the collision.

Finding no abuse of discretion, we affirm.

Glaze, J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority opinion recognizes the applicable law in this case but reaches the wrong decision. The evidence set out in the opinion is sufficient to clearly establish that the facts were fairly evenly divided, thereby presenting a jury question. The driver, Chris Penny, was not speeding, drinking, or otherwise violating the rules of road or any ordinance or statute.

It seems to me that the trial court substituted its judgment for that of the jury. The majority opinion relies upon Brant v. Sorrells, 293 Ark. 276, 737 S.W.2d 450 (1987), recognizing that a trial court may not substitute its view of the evidence for that of the jury.

The majority has, at the very least, reverted to the rule as it existed prior to the decision in Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982), and the 1982 amendment to ARCP Rule 59(a)(6).

I would affirm the verdict rendered by the jury.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    James Edward WILLIAMS v. STATE of Arkansas
    CR 88-164
    768 S.W.2d 539
    Supreme Court of Arkansas
    Opinion delivered May 1, 1989

      Gibbons & Walker, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant James Williams was convicted of aggravated robbery and rape. The only question on appeal is the sufficiency of the evidence.

The crimes occurred in the early morning hours of December 2, 1986, at the Best Western-King’s Inn in Russellville, Arkansas. Betty Lindsey was working the 11:00 p.m. to 7:00 a.m. shift as a desk clerk when she was approached by a man holding what appeared to be a pistol, but which was in fact a visegrip partially concealed in a cloth bag so as to look like a weapon. He demanded she give him money from the cash register and then pushed her into a back room where he tied her hands with wire and raped her.

After hearing of the robbery and rape, two other women employed as night clerks at neighboring motels came forward with information that they had been approached by a man around the time of the incident at Best Western-King. Their description of the man was similar to that given by the victim. In both cases the man had inquired about the price of a room and after a short discussion of the matter, had departed.

About two months later, on February 10, 1987, the three women were shown a photographic lineup which included a picture of the appellant, James Williams. All three identified the photograph of appellant as the man who had approached them on the night in question.

There was a motion filed to suppress the in-court and out-of-court identification based on the photo lineup’s suggestiveness but there is nothing in the record to show that the motion was ever ruled on. In fact, the motion seems to have been abandoned as there was no objection on that basis to the testimony at trial of the out-of-court identification nor to the in-court identification.

A trial was held on March 16, 1988. The jury found appellant guilty on both the charge of rape and the charge of aggravated robbery and imposed a sentence of forty years and life imprisonment. It is from that judgment that appellant brings this appeal.

Appellant argues that the trial court erred in denying his motion for a directed verdict, as there was insufficient evidence from which the jury could find appellant was the person who committed the crimes.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). On appeal, we review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support it. Wright v. State, 288 Ark. 209, 703 S.W.2d 850 (1986). The evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion or conjecture. Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986). We view only the evidence which is most favorable to .the jury’s verdict and do not weigh it against other conflicting proof favorable to the accused. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987).

The evidence in this case rests upon the credibility of the victim and the two other witnesses, and while there are some inconsistencies in the testimony, that is a matter of credibility for the jury to decide. Burris v. State, 291 Ark. 157, 722 S.W.2d 858 (1987); Cope v. State, 292 Ark. 291, 730 S.W.2d 242 (1987); Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). A jury may accept or reject any part of a witness’s testimony and we are bound by the jury’s conclusion. Burris v. State, supra. We have no right to disregard the testimony of a witness after the jury has given it full credence, at least where it cannot be said with assurance' that it was inherently improbable, physically impossible or so clearly unbelievable that reasonable minds could not differ thereon. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980).

We find the discrepancies in the testimony in this case are not of a nature that we could say with any assurance the evidence was inherently improbable or physically impossible. This is so particularly in light of the fact that all three women were positive and unequivocal in their identification of the appellant.

It seems clear that the perpetrator of the crime was the same man who visited the three motels. The man was in each motel within a three hour period on the same night, and all motels were in close proximity to each other. All three clerks described a black man with a stubbly beard, similar clothes, and the same approach — an inquiry about a room followed by a brief conversation with the desk clerk.

The three women identified the appellant in a photo lineup shown to them within about two months of the incident. All three had an opportunity to view the appellant in good light and all three unequivocally identified him as the man they had seen that night. The victim identified appellant in the courtroom and stated she had no difficulty identifying him at this time, even with a heavier beard than he had had before. She said having the beard made no difference because she could not forget the eyes, or, “his whole face ... everything about his face.” She then stood next to appellant to judge his height and stated there was no question in her mind that he was the man.

Paula Crippen was one of the two clerks from the neighboring motels. She picked appellant out of the photo lineup and again in court. She also stated that the fact appellant now had a beard did not prevent her recognizing him, that it was the same man who had appeared in the motel that night and the same man she had selected from the photo lineup.

Linda Foster was the other clerk. She, too, identified appellant in the photo lineup and in court. She said there was no doubt in her mind he was the same man who had been in her motel that night.

The discrepancies appellant points to are: 1) the victim’s description of the perpetrator to the police as being several inches shorter than his actual height; 2) the witnesses’ failure to mention a scar over the appellant’s eye; 3) the victim’s notation in her description to police that appellant had splotches of pigment on his face, like freckles, which she said were not there when she viewed him at trial.

As pointed out by the state, the failure of a rape victim to accurately assess the height of a rapist could not be found to be particularly surprising considering the circumstances under which that assessment is made. And when it is considered that other features of appellant, including his clothing, beard and eyes were described by the other witnesses as well as the victim, the height discrepancy is of minimal importance.

While the victim had not mentioned the scar at the time she gave her description of the assailant to the police, when she was questioned about it on the stand, she stated she had nevertheless remembered it. As to the splotches, they may have been attributable to lighting at the time, or the fact that appellant had since grown a fuller beard and the spots were not visible at trial. Whatever the explanations, the discrepancies were not of a sort to make the testimony inherently improbable and the evidence was more than sufficient to support the conviction.

The judgment is affirmed.


author: David Newbern, Justice.

text:
    James GRABLE v. STATE of Arkansas
    CR 89-68
    769 S.W.2d 9
    Supreme Court of Arkansas
    Opinion delivered May 1, 1989

      Robert Meurer, for appellant.

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

The appellant, James Grable, seeks reversal of his conviction of driving while intoxicated on the ground that the officer who arrested him did not meet mandatory qualifications to make the arrest, and thus the charge against him was invalid and the evidence presented through him was inadmissible. The state argues Grable failed to show the charge by the officer was the only one levied against him and the regulations cited by Grable were not introduced in evidence and cannot be considered. The state also argues there was compliance or substantial compliance with the regulations. We hold compliance with the regulations, of which we may take judicial notice, was mandatory, and Grable had not complied with them. The charge was invalid, and Grable was not required to present evidence that it was the only charge against him. The arrest and charge were invalid, and the evidence resulting from the arrest should not have been admitted. We, therefore, reverse and dismiss the conviction.

Grable was arrested at 1:35 a.m., January 1, 1988, for speeding and driving while intoxicated (first offense) by Officer Carson of the Judsonia Police Department. He was found guilty of both offenses in the Judsonia City Court and appealed to the circuit court where he was convicted only of DWI. Officer Carson testified that Grable’s breath smelled of intoxicants at the time of the arrest, Grable’s eyes were bloodshot, and he failed the field sobriety and portable breath test. He transported Grable to Searcy where an intoxilyzer test was administered by a Searcy Police Department patrolman.

1. Judicial notice

Courts may take judicial notice of the regulations of state agencies. Seubold v. Fort Smith Special School Dist., 218 Ark. 560, 237 S.W.2d 884 (1951); State v. Martin, 134 Ark. 420, 204 S.W. 622 (1918). The cases cited by the state hold courts may not take judicial notice of municipal ordinances and regulations, and thus they are inapplicable here. E.g., Orrell v. City of Hot Springs, 265 Ark. 267, 578 S.W.2d 18 (1979) (municipal civil service regulations); Smith v. City of Springdale, 291 Ark. 63, 722 S.W.2d 569 (1987) (municipal ordinance).

2. The regulations

Qualifications of candidates for police positions in Arkansas are set by regulations promulgated by the Arkansas Commission on Law Enforcement Standards and Training. By Ark. Code Ann. §§ 12-9-104 and 12-9-106 (1987), the general assembly has empowered the commission to establish minimum selection and training standards and general qualifications of law enforcement personnel.

Commission on Law Enforcement Standards and Training Regulations, as abstracted, provide:

§ 1002(2)(c). Every officer employed by a law enforcement unit shall be fingerprinted and a search made of state and national fingerprint files to disclose any criminal record.
§ 1002(2)(i). Every officer employed by a law enforcement unit shall be examined by a licensed psychiatrist or a licensed psychologist, who, after examination, makes recommendations to the employing agency.
§ 1002(4). The minimum standards for employment or appointment must be completed before employment eligibility is established. Employment eligibility should depend upon the results and recommendations received by the investigator and examiners.

Arkansas Code Ann. § 12-9-108(a) (1987) provides:

A person who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a police officer, and any action taken shall be held as invalid.

Subsequent sub-sections contain exceptions for disaster or emergency situations and permit issuance of parking violation citations by law enforcement personnel who have not met the standards.

3. Compliance or substantial compliance

The evidence showed that Officer Carson’s file contained neither a record of a completed fingerprint check nor a record of the required psychological examination. The state argues that there was compliance with the fingerprint requirement because the search had been initiated. It argues substantial compliance with the psychological testing requirement because Carson had undergone such a test in connection with previous employment by another city and because he completed the requirement within 30 days of the arrest in this case. No evidence of the previous psychological test was in Carson’s Judsonia file.

We reject the argument of compliance with the fingerprint check because § 1002(4) of the regulations makes it clear that the minimum standards must be “completed” before employment.

We rej ect the substantial compliance argument with respect to the psychological testing requirement because of the emphatic language of Ark. Code Ann. § 12-9-108(a) which makes clear the intent of the general assembly that we are not to tolerate anything but strict compliance with the regulations. We note in passing that if we were to adopt a substantial compliance •exception the obvious intent of the general assembly to improve the quality of law enforcement by enacting laws requiring standards would never be achieved.

4. Invalid charge

Given the failure of Officer Carson to be in compliance with the regulations at the time of the arrest, § 12-9-108 invalidates the arrest and the action taken by Carson in charging Grable. The state argues, however, that the conviction should be affirmed because Grable failed to show that the citation he was given by Carson was the only charge against him.

In Davis v. State, 296 Ark. 524, 758 S.W.2d 706 (1988), we noted that, in accordance with §12-9-108(a),a charge filed by an unqualified law enforcement officer created a situation as if no charge whatever had been filed. However, we noted, “the appellant does not tell us whether the non-qualified officer’s citation was the only formal charge [emphasis supplied]. . . .’’Given the failure of the appellant even to argue that the charge of which he complained was the only charge against him, we declined to presume error and affirmed the conviction.

In Helms v. State, 297 Ark. 44, 759 S.W.2d 546 (1988), we were presented again with an invalid charge and we again declined to reverse because, in part, “the appellant failed to show that the arresting officer’s citation was the only formal charge [emphasis supplied]. . . .”

We must overrule both of those cases to the extent they implied or said it was the duty of the defendant or appellant to present evidence to the trial court that there was no charge against him other than the one contended to be invalid. Just as the defendant has no duty to establish any fact proving his innocence, Griffin v. State, 169 Ark. 342, 275 S.W. 665 (1925), he has no duty to prove the negative proposition that there are no charges against him other than the one before the court of which he complains. See Austin v. Dermott Canning Co., 182 Ark. 1128, 34 S.W.2d 773 (1931), where it was held that a party should not be required to prove a negative where the means of making the proof are in the control of his adversary. It is the duty of the state to give notice of the offense charged in the charge levied against the defendant, Robbins v. State, 219 Ark. 376, 242 S.W.2d 640 (1951). Clearly the state is in the better position to establish whatever charges it has made against the defendant.

We have no doubt it is the duty of the state to bring a proper charge. If the state is willing to stand on the charge of which the defendant complains, so be it, and the court can then determine its validity. If there is a valid charge against the defendant other than the one to the validity of which he objects, the state should be able to produce it and should have the duty to do so.

Reversed and dismissed.


author: David Newbern, Justice. Tom Glaze, Justice, Tom Glaze, Justice,

text:
    Sharon STANDRIDGE, Guardian of Pamela Lynette Standridge v. Annie Louise Thacker STANDRIDGE
    88-250
    769 S.W.2d 12
    Supreme Court of Arkansas
    Opinion delivered May 1, 1989
    [Supplemental Opinion on Denial of Rehearing May 30, 1989.]

      Young & Finley, for appellant.

      Mobley & Smith, by: William F. Smith, for appellee.

       Holt, C.J., Hays and Glaze, JJ., would grant rehearing. Purtle, J., not participating.

   David Newbern, Justice.

This case arises from a contest in the probate court over who should be the personal representative and administrator or administratrix of a decedent’s estate. The primary issue litigated was whether the appellee, Annie Louise Thacker Standridge, was divorced from her prior husband at the time she married Carroll Wayne Standridge. The answer to that question, in turn, determines whether Annie’s marriage to Carroll was valid, and it may determine whether she was a proper personal representative of his estate. The trial court held Annie was Carroll’s widow despite the fact that her divorce decree had not been entered in accordance with the provisions of Ark. R. Civ. P. 58 at the time she and Carroll participated in a marriage ceremony. We conclude the marriage between Annie and Carroll was invalid because her previous marriage had not been terminated by divorce at the time she purported to marry Carroll. Because a number of decisions made by the probate court may have hinged on its holding that the marriage between Annie and Carroll was valid, we must remand the case.

Annie was appointed administratrix over the objection of the appellant, Sharon Standridge. Sharon is Carroll Standridge’s former wife and the mother of their daughter, Pamela Lynette Standridge, on whose behalf Sharon appeared. Sharon had sought the appointment of an independent administrator on the ground that Annie and Annie’s son, Johnny Thacker, who had lived with Annie and Carroll, had interests in the decedent’s estate which were in conflict with those of Pamela, and, therefore, Pamela’s interest in the estate would suffer if Annie were appointed administratrix.

The primary asset of Carroll Standridge’s estate was a wrongful death claim which resulted from Carroll’s death in a motorcycle accident. The court approved a contingent fee contract between the estate and the law firm which pursued the claim by which the firm would receive 331/3% of an award upon settlement, 40% if litigation were required, and 50% in the event of an appeal. After the case had been filed in a United States district court, Annie negotiated a settlement. The estate was to receive some $470,000. The awards to the individual recipients were structured in various amounts over various time periods.

On behalf of Pamela, Sharon filed an objection to the proposed settlement. She pointed out that, although she had sought notice of any proposed settlement of the claim, no notice was provided to her. She objected to the 40 % fee for the attorneys and contended that Annie Louise Thacker Standridge was entitled to no portion of the recovery because she was not legally the widow of Carroll.

The court ultimately approved the settlement after it was revised to give a greater share to Pamela than that which had first been negotiated.

1. Annie’s divorce

The decree divorcing Carroll from Sharon was filed with the chancery clerk on October 5, 1984. On that same date, the chancellor heard the divorce proceedings between Terry and Annie Thacker, and he wrote on his docket book, “decree — a little unusual but it may work.” Apparently the chancellor was referring to the fact that Terry Thacker was to have custody of the couple’s daughter and Annie was to have custody of the son, Johnny. The daughter was afflicted with a disease known as lupus and required extensive medical support. There was no provision, other than medical insurance coverage, for support for Johnny, but Terry was given reasonable visitation rights.

On October 7, 1984, Carroll and Annie participated in a marriage ceremony. On October 24, 1984, the decree divorcing Annie and Terry Thacker was filed with the chancery clerk. Annie and Carroll were aware there was a “problem” with the validity of their marriage. She testified about the two of them having made several visits to Oklahoma because she and Carroll thought they would thus achieve a common law marriage. She said she and Carroll did not want to go through another ceremony because he did not want it to seem as an admission that they had not been married during the time they had lived together.

In support of his holding that the marriage was valid, the court cited Parker v. Parker, 227 Ark. 898, 302 S.W.2d 533 (1957), and Pendergist v. Pendergist, 267 Ark. 1114, 953 S.W.2d 502 (Ark. App. 1980). Both are cases which were decided in accordance with the law in effect prior to the adoption of the Arkansas Rules of Civil Procedure. The Parker case held that a pronouncement of divorce from the bench at the conclusion of the hearing effected the divorce. In the Pendergist case, the court of appeals noted that the controlling law in the future would be Rules 58 and 79 which would “at least” require a written docket entry of “it,” referring to the judgment.

Since the adoption of the rules, this court has made it clear that a judgment or decree may not be effective until it has been “entered” as provided in Rules 58 and 79. The latter rule has now become Arkansas Supreme Court Administrative Order 2. The second paragraph of Rule 58 provides:

Every judgment or decree shall be set forth on a separate document. A judgment or decree is effective only when so set forth and entered as provided in Rule 79(a). Entry of judgment or decree shall not be delayed for the taxing of costs.

Administrative Order 2, as did the former Rule 79(a), provides merely for the ministerial act of filing in the chancery docket book kept by the clerk. In Childress v. McManus, 282 Ark. 255, 668 S.W.2d 9 (1984), a chancellor held that a divorce announced from the bench at the close of a hearing was valid although the husband died , before the decree was entered. The decree was reversed, and we held a divorce decree entered after the death of a party was a nullity. The failure to enter the decree in accordance with Rule 58 until after the death invalidated the decree.

Annie argues the Childress case and cases similarly decided by our court of appeals are distinguishable because they involve the death of a party, which is not involved here, and because they involve situations where there were or may have been issues left unresolved after announcement of the decree which, she contends, is not the case here. We see no significant difference between the case where a death occurs before entry of a decree and one where remarriage occurs before entry of a decree. In each case, the question is the same. Was the announcement of the divorce from the bench sufficient to effect the divorce? We again say no.

Nor are we persuaded by the idea that in those cases there may have been issues remaining to be resolved. Although in the case before us now the support and property issues seemed to have been settled through Annie’s testimony at the divorce hearing as to the parties’ agreement, there is no telling what sort of objections one or the other of them might have upon seeing the decree in writing and being asked to approve it before entry. Our experience tells us there may always be outstanding issues until a written document is made the final instrument of the divorce and the divorce is made final at some definite point. The purpose of Rule 58 was to provide a definite point at which a judgment, be it a decree of divorce or other final judicial act, becomes effective. The rule tells clearly what that point is.

As Annie was not divorced at the time she married Carroll, their marriage was invalid. A statute, Ark. Code Ann. § 9-12-101(1987), provides that a subsequent marriage may not be undertaken by a person not yet divorced from a living “former” spouse. We have held such a marriage to be “void,” Goset v. Goset, 112 Ark. 47, 164 S.W. 759 (1914), and that is so even where one of the parties to the second marriage entered it in good faith. Morrisson v. Nicks, 211 Ark. 261, 200 S.W.2d 100 (1947); Evatt v. Miller, 114 Ark. 84, 169 S.W. 817 (1914). See Yocum v. Holmes, 222 Ark. 251, 258 S.W.2d 535 (1953). Note, 10 Ark. L. Rev. 188, 196 (1956).

2. Common law marriage

In his holding, the chancellor pointed out that the visits to Oklahoma amounted to no more than “window dressing,” and we must agree. It is clear from Annie’s testimony that, although one of the visits may have been made to find a place to live in Oklahoma, she and Carroll returned to Arkansas to conclude his employment here, and they did not “move” to Oklahoma or ever stay there for any considerable length of time.

Annie cites Stilley v. Stilley, 219 Ark. 813, 244 S.W.2d 958 (1952), for the proposition that this court will recognize a common law marriage validly contracted in a state where such a marriage is sanctioned. However, there, as in other cases where we have recognized a common law marriage, the parties established a substantial relationship of long duration in the common law marriage state. In the Stilley case, for example, the parties stayed in Kansas, a common law marriage state, for nine years, and Mrs. Stilley bore five children there.

In Walker v. Yarbrough, 257 Ark. 300, 516 S.W.2d 390 (1974), we concluded that mere visits or sojourns of parties to a common law marriage state are insufficient to create a common law marriage recognized in Arkansas. We agree with the judge’s apparent conclusion that the record here does not support a finding that a common law marriage was established between Annie and Carroll.

3. Nunc pro tunc

The chancellor who awarded the divorce entered an order on April 20, 1988, purporting to make it effective as of October 5,1984. Annie argues the order was a proper application of the nunc pro tunc procedure because, again, the decree was effective upon its rendition. Courts are permitted to enter orders nunc pro tunc when the record is merely being made to reflect that which occurred but was not recorded due to the misprision of the clerk. A court may not, however, change the record to do that which should have been done but was not. Canal Ins. Co. v. Arney, 258 Ark. 893, 530 S.W.2d 178 (1975).

To argue that the purported nunc pro tunc decree was proper because it made the record reflect the decree was to be effective on October 5,1984, only begs the question whether compliance with Rule 58 was necessary to make the decree final.

Conclusion

Annie and Carroll were not married. We reverse and remand the case for proceedings consistent with this opinion.

Holt, C.J., and Hays and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. In my view, the court is wrong in concluding Annie Standridge’s marriage to Carroll Standridge was invalid. The court’s decision is based on the premise that, at the time Annie married Carroll, Annie’s divorce to her former husband, Terry Thacker, was not final. The majority court reasons that, although the chancellor entered on his docket that the Thacker divorce was decreed, a separate written decree had not been filed or entered. Besides working an injustice to Annie Standridge and her now deceased husband, Carroll, I believe the court’s decision will cause future problems and inequities, as well.

In support of its holding, the majority court cites Rule 58 of the Arkansas Rules of Civil Procedure which provides as follows:

Every judgment or decree shall be set forth on a separate document. A judgment or decree is effective only when so set forth and entered as provided in Rule 79(a). Entry of judgment or decree shall not be delayed for the taxing of costs.

The court also notes Administrative Order 2, formerly ARCP Rule 79(a), which provides, among other things, for the trial court to enter the dates and substance of its orders or judgments in a docket book. The Administrative Order further requires that the court’s clerk “keep a judgment record book in which shall be kept a correct copy of every final judgment or appealable order.”

After noting Rule 58 and Administrative Order 2, the court construes them to mean that a court’s order or judgment is not final and effective until the order or judgment is reduced to a separate written document which is filed or entered. The court places this construction on Rule 58 even though the Reporter’s Notes clearly explain the rule should have little or no effect on prior practice, which recognized the trial court’s decision to be final when it was rendered. The Reporter’s Notes further state the following:

4. This rule provides that a judgment or decree shall not be effective unless and until it is entered pursuant to Rule 79(a). Thus for appeal purposes, the date of entry or filing of the judgment or decree is the effective date, as opposed to the date of rendition. Cranna v. Long, 225 Ark. 153, 279 5. W.2d 828 (1955); Wilhelm v. McLaughlin, 228 Ark. 582, 309 S.W.2d 203 (1958). (Emphasis added.)

As can readily be seen above, the drafters of Rule 58 intended to clarify that,/or appeal purposes, the date of entry or filing of the judgment or decree is the effective date, as opposed to the date of rendition. This rule merely clarified and formalized prior case law on the subject, and was not intended to change prior practice. As already mentioned above, the prior, settled case law (and practice) recognized that decrees rendered in open court are effective from the date they are actually rendered, and not from the date of entry of record. Parker v. Parker, 227 Ark. 898, 302 S.W.2d 533 (1957). The Parker court, quoting from McConnell v. Bourland, 175 Ark. 253, 299 S.W. 44 (1927), said, “the rendition of a judgment is a judicial act on the part of the court, while the entry of a judgment is a ministerial act performed by the clerk.”

The court’s decision today clearly changes prior law and makes the formal filing of a judgment a judicial act rather than the ministerial act it truly is. The court’s interpretation of Rule 5 8 will cause frustrations for trial judges and parties alike, since the finality of any decision made by the trial court will now depend upon when the attorneys prepare and return their precedents (orders, judgments or decrees) to the judge for signature and entry of record. As was the situation in the instant case, delays will inevitably occur between the time a judge renders his or her decision and when the written document is actually filed. Given this hiatus in time, one might even expect a party to assert a small amount of gamesmanship in order to obtain an advantage over an opposing party. All of this, I submit, is unnecessary and is based upon this court’s erroneous interpretation and application of its own rule.

For the above reasons, I would hold that Annie Standridge was divorced from her former husband when she married her husband, Carroll. Her marriage to Carroll was valid, and this court commits a serious mistake by holding otherwise.

Holt, C.J., and Hays, J., join this dissent.

771 S.W.2d 262

MAY 30, 1989

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Per Curiam. Rehearing denied.

Purtle, J., not participating.

Holt, C.J., and Hays and Glaze, JJ., would grant rehearing.

Tom Glaze, Justice, dissenting.

Tom Glaze, Justice,

dissenting. Appellee’s petition for rehearing should be granted. I expressed my views in this cause in my earlier dissent and would generally write no further. See Standridge v. Standridge, 298 Ark. 494, 499, 769 S.W.2d 12, 15 (1989) (Glaze, J., dissenting). I choose to write again in this instance mainly because I recently discovered certain legal authority that further demonstrates how olf-the-mark the court was in interpreting ARCP Rule 58 and in reversing the trial court’s decision.

To summarize, this court held that appellee’s, Annie Standridge’s, marriage to Carroll Standridge was invalid because at the time of that marriage, the court determined Annie was still married to Terry Thacker. The majority concluded that, although the chancellor had entered on his docket that the Thacker divorce was decreed, a separate written decree had not yet been filed or entered when the Standridge marriage took place. The court construed Rule 5 8 and Administrative Order 2 to mean that a court’s order, decree or judgment is not final and effective until it is actually filed.

In my dissent, I referred to the Reporter’s Notes to Rule 58 which related that the Rule’s drafters intended to clarify that for appeal purposes, the date of entry or filing of the judgment or decree is the effective date, as opposed to the date of rendition. Rule 58 of the federal rules of procedure has been construed to this same effect. Although I failed to mention it in my dissent, the Supreme Court, in interpreting FRCP Rule 58, stated that the sole purpose of the separate-document requirement was to clarify when the time for appeals begins. Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978). Amplifying further, the Supreme Court stated the following:

The separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely. The 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered. See United States v. Indrelunas, 411 U.S. 216, 220-222 (1973). Certainty as to timeliness, however, is not advanced by holding that appellate jurisdiction does not exist absent a separate judgment. If, by error, a separate judgment is not filed before a party appeals, nothing but delay would flow from requiring the court of-appeals to dismiss the appeal. Upon dismissal, the district court would simply file and enter the separate judgment, from which a timely appeal would then be taken. Wheels would spin for no practical purpose.

In the Mallis case, the district court’s decision, dismissing the action, had been recorded in the clerk’s docket, but no separate judgment had been filed before an appeal was taken to the Court of Appeals. Nonetheless, the Court of Appeals decided the case on its merits and the Supreme Court held the Court of Appeals had jurisdiction to do so. See also Wright & Miller, Federal Practice and Procedure: Civil §§ 2781-2786 (1973). In sum, FRCP and ARCP Rules 58 establish that the appeal time commences when the court’s judgment is filed; they are in no way intended to delay the effect of the court’s decision once it is rendered.

To further emphasize the point, I note the case of Bethlehem Mines Corp. v. United Mine Wkrs. of Amer., 476 F.2d 860 (3rd Cir. 1973). There, the district court held several hearings during which it orally continued a temporary restraining order enjoining a strike. Subsequently, the district court, finding Local 1368 violated the court’s restraining order, held Local 1368 in civil contempt. On appeal, Local 1368 challenged the court’s contempt order, contending the court’s restraining order had never been set forth on a separate document as required by Rule 58, and therefore the restraining order was ineffective. In holding the district court’s failure to set forth its restraining order in a separate document did not preclude an adjudication of civil contempt, the Third Circuit Court of Appeals stated the following:

Rule 58, however, was intended primarily to clear up the uncertainties of determining when, for the purpose of appellate review, there is a final, appealable judgment. In addition, the purpose of Rule 58 is to insure that parties know what is required of them, that the public has notice of the entry of judgments, and that an appellate court has sufficient information upon which to base its review.
Under the facts of this case, none of these purposes of Rule 58 would be thwarted. There is no question involved of the time for filing an appeal or of any other matter dealing with an appeal. Defendant never attempted to appeal the granting of preliminary relief, nor has it alleged that it was in any way prevented from doing so. Moreover, the mere fact that the preliminary injunction was not in writing and set forth in a separate document has not been claimed, and, in the context of the present dispute, would not appear to prejudice anyone.
The parties were present in court, either personally or by counsel, during the hearings on the temporary restraining order, when the preliminary injunction was granted, and also in subsequent conferences with the judge. Because the oral preliminary injunction simply continued the earlier temporary restraining order which was set forth in a separate document, the record makes clear that the parties were fully aware of the existence and content of the injunction. No objection was made by the defendant to the granting of injunctive relief, nor was any appeal ever filed. Under these circumstances, we would be exalting form over substance if we were to hold that in failing to enter the preliminary injunction on a separate document, the district court thereby rendered itself powerless to adjudge violations in civil contempt. (Emphasis added.)

Bethlehem Mines Corp., 476 F.2d 860, 863 (citations omitted).

In the present case, the chancellor decreed Annie’s divorce from Terry Thacker by entering it on the court’s docket book. Both Annie and Terry understood they were divorced, no objection was made and no appeal was ever filed. The chancellor’s decree included a custody award, and the chancellor’s power to enforce the decree was not, and should not be, dependent upon a party or his or her attorney filing a separate document that merely reflects what the court previously decided. To give more effect to the separate-document requirement of Rule 58 was not intended and can only lead to a multitude of problems.

Holt, C.J., Hays, J., join in this dissent. Purtle, J., not participating.


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    George W. THOMPSON v. STATE of Arkansas
    CR 89-28
    769 S.W.2d 6
    Supreme Court of Arkansas
    Opinion delivered May 1, 1989
    [Rehearing denied June 5, 1989.]

      John Wesley Hall, Jr. and Craig Lambert, for appellant.

      Steve Clark, Att’y Gen., by. Clint Miller, Asst. Att’y Gen., for appellee.

      Purtle, J,, would grant rehearing.

   David Newbern, Justice.

The appellant, George W. Thompson, appeals his conviction of keeping a gambling house in violation of Ark. Code Ann. § 5-66-103 (1987). He states four points: (1) the court erred in failing to require the state to produce a confidential informant and then permitting a police officer to testify with respect to statements made by the informant, (2) the court erred in admitting hearsay evidence, (3) the evidence was insufficient to support the verdict, and (4) the statute is unconstitutional because it is vague. Wehold: (1) it was not error to permit testimony about statements made by the informant because the defense opened the subject through cross-examination; (2) the statements complained of were not hearsay; and (3) the evidence was sufficient to support the conviction. We need not reach the constitutional issue because it was not raised at the trial, Barnes v. State, 294 Ark. 359, 742 S.W.2d 925 (1988). We, therefore, affirm the conviction.

At an omnibus hearing, the court ruled that the state need not reveal the name of its informant absent a plan to present, at trial, testimony as to statements made by the informant. The state did not reveal the name of the informant. At the trial, Officer Wallis testified he conducted a search of a building located at 123416 W. 10th St. in North Little Rock as the result of a tip received from an informant. On cross-examination defense counsel questioned the officer specifically about what was said during conversations between the informant and a person who answered as “George” during calls to 371-9781 being monitored by Wallis prior to the search. Wallis described the calls and stated “we came to recognize his voice.”

During the search two telephones on the premises rang constantly, each about every 60 seconds. On one occasion an officer answered the phone and actually accepted what was apparently a horse race bet, known as a “round robin,” from someone named Waller. A number of documents which appeared to be, and which were described by Wallis as, “betting slips” were seized, along with a list apparently showing customer names and the amounts they owed or which were owed to them. Thompson was arrested at the scene. A telephone company official testified the number (501) 371-9781 was listed for a George A. Thompson.

1. Identity of the informant

Whether the name of a confidential informant is to be disclosed depends on the circumstances of the case. Roviaro v. United States, 353 U.S. 53 (1957); McDaniel v. State, 294 Ark. 416, 743 S.W.2d 795 (1988); James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983). Disclosure is required if the 4state is to produce the informant as a witness at the trial, see Ark. R. Crim. P. 17.5, but not if the informant is only to be referred to as someone who assisted in the investigation leading to the arrest. See A.R.E. 509; Shackleford v. State, 261 Ark. 721, 551 S.W.2d 205 (1977).

The court’s initial ruling was correct. It would have been necessary for the state to produce the name of the informant if it had planned to use his testimony to show he participated in the crime or the manner in which it was committed. The state, however, put on no such testimony in its case in chief. The defense cross-examination of Officer Wallis went into what was said to and by the informant during the monitored calls. That opened the door for the state to discuss those conversations with the witness. Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986); Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 (1982).

2. Hearsay

When Officer Wallis testified about the conversations between the informant and “George,” counsel for Thompson made a hearsay objection. The court correctly ruled the testimony was not hearsay. Officer Wallis testified he placed the calls and monitored them. As he heard what was being said, he was not repeating what the informant told him George told the informant. He was not relating the conversations to establish the truth of the matters asserted in them, but rather to establish that the conversations occurred. An out-of-court statement which is not offered for the truth of the matter asserted is not hearsay. Liberto v. State, 248 Ark. 350, 451 S.W.2d 464 (1970). See also Jackson v. State, 274 Ark. 317, 624 S.W.2d 437(1981); Flaherty v. State, 255 Ark. 187, 500 S.W.2d 87 (1973).

3. Sufficiency of the evidence

Thompson’s directed verdict motion and his argument here that there was no substantial evidence to support his conviction emphasizes what the state did not prove, e.g., no one saw him take a bet or money, no gambling devices were found in his house, the state did not show his fingerprints were on the betting forms, and the state did not prove whose writing was on them.

We view the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). We note testimony from which the jury could have concluded: Thompson was seen entering and leaving the house at 12341/2 W. 10th Street in North Little Rock; he was present when officers executed the search warrant; the betting slips and customer lists were found on the premises; the telephones were ringing every 60 seconds, and the callers were asking for “George;” a bet was placed by one caller during the search; the two telephones were in the name of “George A. Thompson” according to telephone company records; and the informant had earlier placed bets over the telephone at the number listed for Thompson with a person called “George.”

The evidence was sufficient to support a verdict reached by the jury without resort to suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. This archaic law is, in my opinion, unconstitutional for vagueness. Moreover, without any valid justification it prohibits some people from doing the very things others are allowed to do. The appellant was apparently guilty of bookmaking or taking bets on horses, just as they do at the racetrack in Hot Springs. My basic disagreement is not so much with the majority opinion as it is with the law and how it has been interpreted over the years.

I cannot understand how Ark. Code Ann. § 5-66-103(a) (1987) can be read to include making or accepting bets on horse races. The code reads as follows:

Every person who shall keep, conduct, or operate, or who shall be interested, directly or indirectly, in keeping, conducting, or operating any gambling house or place where gambling is carried on, or who shall set up, keep, or exhibit or cause to be set up, kept, or exhibited or assist in setting up, keeping, or exhibiting any gambling device, or who shall be interested directly or indirectly in running any gambling house or setting up and exhibiting any gambling device or devices, either by furnishing money, or other articles for the purpose of carrying on any gambling house shall be deemed guilty of a felony and on conviction shall be confined in the State Penitentiary for not less than one (1) year nor more than three (3) years.

Other sections of the code are more nearly descriptive of the activities for which the appellant was convicted. Section 104 prohibits the setting up, keeping, or exhibiting of gaming devices. Section 106 establishes the penalty for betting. Then there is the greatest of all the laws in this field, Ark. Code Ann. § 5-66-116(a), which makes it illegal to bet on horse races. It reads as follows:

It shall be unlawful to bet in this state, directly or indirectly, by selling or buying pools or otherwise, any money or other valuable thing, on any horse race of any kind whether had or run in this state or out of this state.

Naturally, it is not a violation of this act if you make bets on horse races in Hot Springs. See Ark. Code Ann. § 23-110-102 (1987). If people in Hot Springs are able to bet on horse races by the use of totalizators or pari-mutuel betting, why should the people in North Little Rock be denied the opportunity to bet on horse races in a less extravagant manner?

If people who can afford to go to Oaklawn, dressed in all their finery and driven in their expensive limousines, are allowed to place their bets in the exclusive preserve of the Jockey Club, why should those less fortunate be denied the opportunity to engage in the same activity elsewhere at much less expense? There are no classes of citizens according to our constitutions; nevertheless, certain “classes” of people seem to think so. I do not. Article 2, section 2, of the Arkansas Constitution states:

All men are created equally free and independent, and have certain inherent and inalienable rights, amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

The evidence against the appellant consisted primarily of a telephone and a piece of paper called a betting slip, as well as a list of names and addresses with some figures written near the names. Compare these items with what may be found in any home and you will discover the same “evidence” — they are hardly the same devices described in § 5-66-104 that one may expect to find in a “gambling house” as established by § 5-66-103(a).

The appellant was also seen leaving or returning to his residence — on several occasions. This type of criminal activity cannot be tolerated in a law-abiding community.

There are presently too many unsolved crimes, such as burglaries and drug offenses, and too many hoodlums on the street. It is therefore counterproductive to allow the already understaffed and underpaid police departments to assign teams of several officers to catch bookies, especially in other cities. However, if this law is to be literally enforced against everyone, then I submit that the biggest gambling house of all is located on Central Avenue in Hot Springs, Garland County, Arkansas.


author: David Newbern, Justice. Darrell Hickman, Justice, Tom Glaze, Justice, David Newbern, Justice. Tom Glaze, Justice,

text:
    Michael WRIGHT v. Leon STOREY
    88-309
    769 S.W.2d 16
    Supreme Court of Arkansas
    Opinion delivered May 1, 1989
    [Supplemental Opinion on Denial of Rehearing July 3, 1989.]

      David H. White', and David Love, Hot Springs City Att’y, for appellant.

      Q. Byrum Hurst, Jr., for appellee.

       Hickman, Hays, and Glaze, JJ., dissent.

   David Newbern, Justice.

This is an illegal exaction suit brought as a class action by the appellees, who are Garland County taxpayers, against the appellants, who are the city manager, mayor, and members of the City of Hot Springs Board of Directors. Pursuant to Ark. Const, amend. 31, the residents of Hot Springs approved by referendum vote a property tax levy of up to one mill to provide a fund for police pensions and up to one mill for firefighter pensions. That took place in 1941, and one full mill was certified and taxed for those purposes until the passage of Ark. Const, amend. 59 in 1980, at which point the taxes were rolled back to .4 mill for each fund. The reduced amount was collected until 1986 and 1987 when the city board certified one mill although no further election had occurred. The court held the city had illegally collected the taxes because no further election had occurred and there had been no compliance with the part of amend. 59 which is now Ark. Const, art. 16, § 14. The city argues amend. 31 permitted the one mill levy, that the people had approved it by election, and that amend. 59 did not affect amend. 31. We conclude there was no error because the court was correct in holding that there must be compliance with amend. 59.

In Clark v. Union Pacific R.R., 294 Ark. 586, 745 S.W.2d 600 (1988), we offered explanation of amend. 59. We found it to be the purpose of the amendment to equalize tax rates on personal and real property. The idea is to reduce personal property taxes simultaneously with the raising of real property taxes or to hold personal property taxes static until real property tax rates equal them. As Justice Glaze noted in his concurring opinion, the revenues from personal property were to be computed so as not to exceed collections in excess of the “base year.” This was the so-called “rollback” provision.

Assuming the rollback from one mill to .4 mill was done to comply with amend. 59, the city was thereafter collecting the same revenues it had collected at one mill on the taxes in question. To allow the city then to return to the old rate (clearly in excess of 10 % over the base year) on the newly increased appraised value of the property would violate amend. 59, even though it might have seemed permitted, literally, by amend. 31. The later amendment prevails in the event of a conflict. Chessir v. Copeland, 182 Ark. 425, 32 S.W.2d 301 (1930); Lybrand v. Wafford, 174 Ark. 298, 296 S.W. 729 (1927).

Moreover, the court’s finding that the city had not demonstrated compliance with art. 16, § 14, was appropriate. While that section is otherwise confusing, it clearly states:

The adjustment or rollback of tax rates or millage for the “base year” as hereinafter defined shall be designed to assure that each taxing unit will receive an amount of tax revenue from each tax source no greater than ten percent (10%) above the revenues received during the previous year from each such tax source, adjusted for any lawful tax or millage rate increase or reduction imposed in the manner provided by law ....

The court’s order required the city to refund taxes collected in excess of what it would have collected under the .4 mill rate plus ten percent per year increase.

We do not consider whether an election was required to permit the ten percent increase, as the taxpayers have not cross-appealed on that point.

Affirmed.

Hickman, J., concurs.

Purtle and Glaze, JJ., dissent.

Darrell Hickman, Justice,

concurring. Another victim of godzilla. See Clark v. Union Pacific Railroad Co., 294 Ark. 586, 745 S.W.2d 600 (1987) (Hickman J., dissenting).

Tom Glaze, Justice,

dissenting. In Clark v. Union Pac. R.R., 294 Ark. 586, 745 S.W.2d 600 (1988), we said that Amendment 59 provides that the amount of revenue derived from personal property cannot be increased until the rates for real and personal property equalize. There, the parties provided extensive testimony, findings and conclusions that clearly reflected that the real and personal property rates in School District No. 9 in Cross County had not been equalized and that to apply a new millage to personal property in the district would only perpetuate that unequal discrimination which was contrary to Amendment 59.

Here, the parties have presented virtually no proof bearing on the change in the millage rates and its effect on the collection of revenues from the real and personal property in issue. Unlike in Clark, the parties here offered no testimony or findings to the trial court, so there is virtually no record to review on appeal. The court’s only reference to millage was that a one mill levy on real and personal property was assessed for the benefit of the police and fire pension funds and that the one mill was “rolled back to .4 per fund per Amendment 59” in 1982 and collections for that year totalled $ 135,032.00. No mention is made of how the millage was rolled back or the effect it had on the respective collections from the real and personal property assessed and located in the City of Hot Springs. In sum, I am unable to discern what differences existed between real and personal property rates, assessments and collections in base year 1982 and subsequent years. As a consequence, I cannot determine if any prior discrimination in personal and real property rates has been equalized since the roll back took place in 1981. Clearly, if equalization has been achieved, the appellants’ action in returning the millage to one mill from .4 mill is not wrong merely because it increased revenue collections in excess of 10% over the base year.

772 S.W.2d 598

JULY 3, 1989

David H. White, for appellant.

Q. By rum Hurst, Jr., for appellee.

Because this case fails to present an adequate record to decide the issue reached and decided by the trial court, I would reverse and remand this cause rather than postulate the information necessary to determine whether the appellants’ action in this cause violated Amendment 59.

Purtle, J., joins this dissent.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

David Newbern, Justice.

The appellants seek rehearing of

our decision rendered May 1,1989, asserting that the language in our opinion misinterprets the provisions of amend. 59 when read as a whole. They also suggest that the language in our decision inadvertently conflicts with our opinion in Clark v. Union Pacific R.R., 294 Ark. 586, 745 S.W.2d 600 (1988). The Assessment Coordination Division of the Public Service Commission joined as amicus curiae supporting the appellants in these assertions. The petition offers, in great detail, what they submit to be the proper interpretation “overall” of the provisions of amend. 59. The supplemental dissenting opinion on denial of rehearing agrees that our opinion in this case reinstates the same error we corrected by the substituted opinion in the Clark case.

The dissent quotes this sentence from the body of our opinion to support the conclusion that the error corrected by the substituted opinion in the Clark case has been reinstated: “To allow the city then to return to the old rate (clearly in excess of 10 % over the base year) on the newly increased appraised value of the property would violate amendment 59, even though it might have seemed permitted, literally, by amendment 31.”

While that sentence, read in isolation from the remainder of the opinion might be subject to that interpretation, the opinion as a whole does not support such a conclusion. The language we corrected in the Clark case had suggested that real estate taxes could not be increased more than ten percent after the base year. That conclusion is not supported by the majority decision in this case. As we stated in the paragraph above the quoted sentence, the purpose of the amendment is to equalize the tax rates on real and personal property and this could be accomplished either by holding personal property taxes static and raising real property taxes until equalization occurred or by the rollback procedure. There is no suggestion that the same goal could not be achieved by both rolling back personal property rates and raising real property rates to close the gap.

That which is prohibited by amend. 59, by the court’s opinion in this case, and by the court’s opinion in the Clark case is any increase in the millage rate on the newly appraised value of personal property prior to equalization. To avoid the possibility of future misinterpretation, the language of the sentence quoted above is modified to read as follows: To allow the city then to return to the old rate (clearly in excess of 10 % over the base year) on the newly increased appraised value of personal property would violate amend. 59, even though it might seem permitted, literally, by amend. 31.

The dissenting opinion also concludes, as did the dissenting opinion accompanying our decision in this case, that the record was insufficient to support the chancellor’s finding that amend. 59 had not been followed. The record was sufficient to show, and none of the facts were even contested, that the Hot Springs city board raised the millage from .4 to 1 mill after the rollback. If it is the suggestion of the dissenting opinion that the record does not demonstrate that equalization had not occurred at the time the increase was ordered, such a suggestion is unacceptable. If equalization had been achieved, it was the duty of the appellants to present a record demonstrating it. Surely the appellants would have argued equalization had occurred were there any possibility that it had. No such argument has ever been made.

Another good reason for denying rehearing is that the appellants failed to make the arguments presented in their rehearing petition suggesting the possible interpretation of amend. 59 at either the trial level or in the orginal briefs arguing this case before this court. We have repeatedly held that we will not address arguments which the appellant did not raise in the proceedings below. Reed v. Alcoholic Beverage Control Div., 295 Ark. 9, 746 S.W.2d 368 (1988); Arkansas Cemetery Board v. Memorial Properties, 272 Ark. 172, 616 S.W.2d 713 (1981).

Rehearing denied.

Hickman, Hays and Glaze, JJ., would grant this rehearing.

Tom Glaze, Justice,

dissenting. Appellants petition for rehearing and request we reverse our decision rendered on May 1, 1989. The court badly bungled this case, and we compound our error by failing to grant the appellants’ petition. I quickly add that I believe the respective parties’ failure to present an adequate record in this case did much to cause the erroneous decision reached by this court. See Wright v. Storey, 298 Ark. 508, 510, 769 S.W.2d 16, 18 (1989) (Glaze, J., dissenting).

The majority court’s opinion says, “To allow the city then to return to the old rate (clearly in excess of 10% over the base year) on the newly increased appraised value of the property would violate amendment 59, even though it might have seemed permitted, literally, by amendment 31.” (Emphasis added.) This language reflects the same blunder we made (and corrected) in Clark v. Union Pac. R.R., 294 Ark. 586, 745 S.W.2d 600 (1988). In Clark, we originally opined that real estate taxes could not be increased more than ten percent after the base year — the same principle noted above and followed by the majority in this cause; however, in response to a rehearing petition, we promptly corrected our error in Clark by deleting such limiting language. Thus, by the'majority court’s opinion in this case, the court reinstates the same error we corrected in Clark.

After reviewing their petition and contemporaneous brief, I glean the appellants have a better grasp of the constitutional issues in this case and now realize how poorly developed this cause was when it was tried below. Without an adequate record before it, this court chose to shoot in the dark, hoping to resolve the serious constitutional issues presented in this appeal. In doing so, it not only bagged Justice Hickman’s “Godzilla,” Clark, 294 Ark. at 593, 745 S.W.2d at 604 (Hickman, J., dissenting), it also created a monster of its own. We could alleviate this concern (which will continue to loom in the future) by granting the appellants’ rehearing petition and reversing and dismissing this case without prejudice.

In conclusion, I would note that, in responding to my dissent, the majority attempts to clarify its earlier opinion while, at the same time, saying the opinion is correct. Quite candidly, I am uncertain as to how the court’s clarification avoids the conflict I, the appellants and the Assessment Coordination Division perceive exists in this case and our prior decision in Clark. From my reading of the majority’s original and supplemental opinions, I am further convinced this case was not adequately developed or argued below. If we reversed this case, perhaps the parties would eventually return it to us with a more understandable format and record. As it now stands, the majority’s decision only adds to the confusion that gradually envelopes Amendment 59.

Hickman and Hays join in this dissent.


text:
    William G. WYLIE and Carolyn S. Wylie v. Gene B. TULL, et al.
    89-3
    769 S.W.2d 409
    Supreme Court of Arkansas
    Opinion delivered May 1, 1989

      Robert M. Abney, for appellant.

      Randall L. Gammill; Green & Henry, by: David G. Henry, for appellee.
   David Newbern, Justice.

This is an appeal from a chancery court decree quieting title to forty-nine parcels of land in the appellees. The appellants, William G. and Carolyn S. Wylie, are the successors in interest to the Chicago Rock Island and Pacific Railroad Company and its predecessors to which the lands in question were conveyed when railroad lines were being built in Arkansas. The forty-seven appellees are successors to the grantors. The chancellor held in favor of the appellees on the ground that each deed was a conveyance of a right of way easement rather than fee simple, and that the lands reverted to the grantors and successors when the railroad company abandoned them. We agree with the chancellor’s decision with respect to each deed, thus the decree is affirmed.

We-thoroughly reviewed the law concerning conveyances to railroad companies like the ones before us now in Coleman v. Missouri Pacific R.R., 294 Ark. 633, 745 S.W.2d 622 (1988). We noted that, as in nearly all deed construction cases, it is necessary to ascertain the intention of the parties by examining the deeds “from their four corners.” We revisited Daugherty v. Helena & Northwestern Ry., 221 Ark. 101, 252 S.W.2d 546 (1952),and El Dorado & Wesson Ry. Co. v. Smith, 233 Ark. 298, 344 S.W.2d 343 (1961), and discussed the Daugherty case as follows:

In Daugherty, the deed contained language in its granting clause that is almost identical to that which appears in the two deeds here dated July 23,1902, viz., ‘In consideration of the sum of five dollars and of the benefits to accrue to us from the construction of the Missouri & North Arkansas Railroad, we . . . convey ... a strip of land 100 feet in width for a right of way . . .’ In holding that the deed in Daugherty granted an easement and not a fee simple title, the court reasoned that the deed referred not simply to a strip of land but instead specified strip of land 100 feet in width ‘for a right of way.’ The court further said that, when the grantor unequivocally conveys the fee, his designation of the property’s intended use should be regarded as surplusage; but when the grantor’s intention is itself subject to question, then the fact that he attempts to restrict the use of the property becomes a factor in the interpretation of his deed. In holding the parties, by their deed, intended to convey an easement, the court emphasized those factors that it believed indicated an easement, not a fee simple title, viz., that only a nominal consideration had been paid by the railway company for the strip of land; that the shape of the tract conveyed indicated a right of way; and that the railway company was given the right ‘to take stone, gravel and timber and to borrow earth on the said right of way’ for the construction and maintenance of the railroad.

In the Coleman case, we looked at the distinguishing factors in the three deeds at issue. They gave the railway company the right to take stone, gravel, timber and earth outside the strip, they contained a relinquishment of dower (a factor significant in St. Louis & San Francisco Ry. Co. v. Tapp, 64 Ark. 357, 42 S.W. 667 (1897), and they conveyed additional land beside the narrow strip [a factor significant in Lynch v. Cypert, 227 Ark. 907, 302 S.W.2d 284 (1957)]. We concluded a fee simple had been conveyed.

As stated in the Daugherty case and restated in the Coleman case, there are four indicators that an easement, as opposed to a fee, has been conveyed. First, the deed mentions right of way. Second, only nominal consideration is stated. Third, the shape of the tract (long, narrow strip) makes other uses unlikely. Fourth, the railroad is given the specific right to take earth from the strip itself.

There was a statement in the third of the deeds we considered in the Coleman case that the conveyance was for right of way, and it was undisputed that consideration was nominal. Two factors were cited, however, which were said to indicate a fee simple transfer. First, the grant of the right to take earth outside the strip and second, the relinquishment of dower by the spouse. Even though it was not stated as a critical factor, we noted that the three deeds were all executed by the parties within two months, and the first deed conveyed a strip of land with no mention of right of way. The second and third deeds conveyed the aforementioned strip, called it a right of way, and conveyed extra ground for a depot.

One basis we found in the Coleman case for contrasting the deeds there with that in the Daugherty case was that the railroad was given the right to move earth and change water courses off the premises conveyed, whereas in the Daugherty case deed, the railroad was given the right to take earth on the land conveyed. That was a good distinction, because in the Daugherty case we pointed out it would be absurd to grant a grantee the right to take dirt from land he owned in fee.

In some of the deeds described below the right to go on the grantor’s property beyond the premises conveyed is granted. While that, again, makes a nice contrast with the Daugherty case deed, it does not mean that the conveyances before us where such a right is given are necessarily grants of fees. The limited right to go on the land of the grantor adjacent to the land conveyed is no more than the granting of an easement on the adjacent property, and there is no reason to infer that it is attached to a fee which has been granted to the railroad.

Most of the deeds we consider here contain indicators of both fee simple and easement. Rather than reproduce each deed, we will give a summary of each, noting the factors we have considered. For the convenience of the parties, we designate each deed as it was designated in the record. In nearly every case, factors indicating an easement outnumber the ones indicating conveyance of a fee. In none of the deeds before us did we find that the factors pointing to the grant of a fee outnumbered or outweighed those pointing to the grant of an easement. In the few cases where there seem to be an equal number of considerations favoring construction as a fee rather than an easement grant, we defer to the chancellor because the appellants have not shown us his decision was erroneous. The determination of the intent of a grantor is largely a factual one, and we will not reverse a chancellor’s determination of a factual matter unless it is shown to be clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a); Brown v. Bell, 291 Ark. 116, 722 S.W.2d 592 (1987).

R-ll: Titled “Warranty Deed.” Consideration, $1.00 plus benefits from construction. Transfer of strip of land 200' “for right of way”. If construction not commenced within 12 months right of way reverts. Right to borrow earth on said right of way granted. Dower relinquished.

R-12A: Titled “Warranty Deed.” Consideration, $25 plus benefits from construction. Transfer of strip of land 200' “for right of way”. Right to borrow earth on said right of way granted. Dower relinquished.

R-1A: Titled “Warranty Deed,” but says quitclaim in the body. Consideration, benefits to accrue from construction. Grants “my right of way being 100' ”. Right to fell trees outside strip which may endanger railcar granted. Dower relinquished.

R-13 and R-22: Titled “Deed.” Consideration, $1500. Transfer of a strip of land 100' (50' on each side of center of main track already constructed). Right to borrow earth on “said right of way” granted. [These deeds present two of the closest cases because the consideration was clearly substantial rather than nominal. We cannot say, however, that the chancellor’s conclusion that it was an easement was erroneous in view of the very narrow shape of the land conveyed and the right to borrow earth which would have been unnecessary had the grantor intended conveyance of a fee.]

R-16: Titled “Deed to Right of Way.” Consideration, $245. Transfer of a strip of land 100' (50' on either side of main track). Right to borrow earth on said “right of way” granted. Dower relinquished.

R-23A: Titled “Right of Way Deed.” Consideration, $90. Transfer of a strip of land 100' (50' on either side of main track already constructed). Right to borrow earth on “said right of way” granted. Dower relinquished.

R-23B: Titled “Right of Way Deed.” Consideration, $5. Conveys a strip of land 100' wide (50' on each side of the main track). Right to borrow earth on said “right of way” granted. Right to make embankments or cuts outside “said right of way” but not to exceed 100' on either side at any one point. [Grantor was a single man],

R-27C: Titled “Right of Way Deed.” Consideration $315. Transfer of two strips of land 100' (50' on each side of the main track). Right to borrow earth on “said right of way” granted. Dower relinquished.

R-29: Titled “Right of Way Deed.” Consideration, $280. Transfer of a strip 100' (50'on each side of the main track). Right to borrow earth on said “right of way” granted. Right to make embankments or cuts within 50' on either side of the right of way. Dower relinquished.

R-32B: Titled “Right of Way Deed.” Consideration, $242.50. Transfer of a strip of land 100' (50' on each side of the center of the main track). Right to take or borrow earth on said right of way granted. Dower relinquished.

R-36: Titled “Right of Way Deed.” Consideration, $371. Transfer of a strip of land 50' wide on each side of described section. Right to borrow earth on said right of way. Right to make embankments outside the right of way not to exceed 100' at any one point. Dower relinquished.

R-18: Titled “Right of Way Deed.” Consideration $1. Transfer of a strip 100' (50' on each side of the center of the main track). Right to borrow earth on said “right of way” granted. Dower relinquished.

R-20, R-21B, R-24A, and R-26B: Titled, “Right of Way Deed.” Consideration $1. Transfer of a strip 100' (50' on each side of the center of the main track). Right to borrow earth on said “right of way” granted. Right to make embankments outside the right of way not to exceed 100' at any point. Dower relinquished.

R-25A: Titled “Right of Way Deed.” Consideration, $1. Transfer of a strip of land 100' wide [additional, description describes land forming parallelogram east of the center line of the tract of the railway]. Right to borrow earth on “said right of way” granted. Dower released.

R-25B and R-25C: Titled “Right of Way Deed.” Consideration, $ 1. Transfer of a strip of land 50' wide along east side of main track. (R-25C transfers a strip 100' wide, 50' on each side of the track.) Right to borrow earth on “said right of way” granted. Right to make embankments outside right of way but not to exceed right of way by 100' at any one point. Dower relinquished.

R-26A: Titled “Right of Way Deed.” Consideration, $1. Transfer of a strip of land 50' wide (along west side of main track). Right to borrow earth “on said right of way” granted. [Transfer by a single woman].

R-26B, R-27A, and R-27B: Titled “Right of Way Deed.” Consideration, $1. Transfer of a strip of land 100' (50' on each side of main track). (R-27A and R-27B, strip is 50' wide.) Right to borrow earth on “said right of way” granted. Right to make embankments outside right of way not to exceed 100' at any one point. Dower released.

R-28 and R-30A: Titled “Right of Way Deed.” Consideration, $1. States transfer of a strip of land 100' wide (50' on each side of main track, except N.E.'A where a curve to the West may be made). (R-30, strip is 50' wide.) Right to borrow earth on said “right of way” granted. Dower relinquished.

R-30B: Titled “Right of Way Deed.” Consideration, $1. Transfer of a strip 50' wide to be taken on the West side. Railroad is required to build a depot within 3 miles of the land or the deed is void and to begin work within 1 year or the deed is void. Right to borrow earth on “said right of way” is granted. Dower is relinquished.

R-32A, R-34A, and R-35B: Titled “Right of Way Deed.” Consideration, $ 1. Transfer of strips 50' wide on either side of the main track with right to borrow earth on “said right of way”. Dower is relinquished.

R-35C, and R-37: Titled “Right of Way Deed.” Consideration, $1. Transfer of strip of land 50' wide. Right to borrow earth on said “right of way” granted. Deed to be void if railroad not in operation before 1/1/13. (R-35C is by a widower, and R-37 is by a single woman.)

R-38. Titled “Right of Way Deed.” Consideration, $500. States transfer of strip of land 100' wide (50' on each side of the main track) with the right to borrow earth from said “right of way” granted. (Grantors are unmarried persons).

R-39: Titled “Right of Way Deed.” Consideration, $1. Transfer of a strip of land 50' wide (on west side of main track) with the right to borrow earth from said “right of way” granted. (Grantor is unmarried).

R-17: Titled “Right of Way Deed.” Consideration, $2. Transfer of strip 100' wide (50' on each side of the center of the main track). Dower is relinquished.

R-9B: Titled “Warranty Deed.” Consideration, $1. Transfer of a strip 100' on each side of the center of the main track. Right to borrow earth on said “right of way.” Reserves merchantable timber on said “right of way.” Dower is relinquished.

R-12C: Titled “Warranty Deed.” Consideration, $1. Transfer of strip 100' for right of way. Right to borrow earth on said right of way is granted. Dower is relinquished.

R-12D: Titled “Warranty Deed.” Consideration, $1 and benefits to accrue from construction of railway. Transfer of strip of land 100' for right of way. Right to borrow earth on said right of way granted. Dower is relinquished.

R-1B: Titled “Deed.” Consideration, $35. Quitclaim transfer of “my right of way” being 100' the middle thereof to be the railroad track. Right to fell trees outside limits which might endanger railroad. Grantor reserves right to cultivate up to railroad tracks and railroad to put in cattle guards. Dower is relinquished.

R-3A: Untitled. Consideration, $C Transfer of strip 100' wide for right of way (50' on each side of the railway). Right to borrow earth on right of way. Right to take earth outside right of way up to 100'. (Unmarried man).

R-3B: Untitled. Consideration, $1 and benefits to accrue. Transfer of strip 100' wide for right of way (50' on each side of center of main track). Right to borrow earth on right of way granted. (Widow).

R-3C: Untitled. Consideration, $1 and benefits to accrue. Transfer of strip 50' wide for right of way. Right to borrow earth on right of way granted. Dower relinquished.

R-4: Untitled. Consideration $175 and benefits to accrue. States transfer of strip 100' wide for right of way. Right to borrow earth on right of way is granted. Dower is relinquished.

R-5: Untitled. Consideration, $175 and benefits to accrue. Transfer of strip 100' for right of way. Right to borrow earth on right of way is granted. Dower is relinquished.

R-7A: Untitled. Consideration $1 and benefits to accrue. Transfer of strip 200' wide for right of way. Right to borrow earth on right of way granted. Dower is relinquished.

R-7B: Untitled. Consideration, $50 and benefits to accrue. Transfer of strip 200' wide for right of way. Right to borrow earth on right of way granted. Dower is relinquished.

R-8: Titled, “Deed of Right of Way.” Consideration, $105 and benefits to accrue. Transfer of a strip 200' for right of way. Right to borrow earth on right of way granted. Dower is relinquished.

R-10: Titled, “Warranty Deed.” Consideration, $1 and benefits accrued. Transfer of strip 200' for right of way. Reserving merchantable timber to grantor. Right to borrow earth on right of way granted. (Widow).

R-6: Condemnation decree. Easement granted.

Conclusion

The various provisions contained in these deeds made them ambiguous. As stated at the outset, the job of the chancellor was to ascertain the intention of the parties, particularly the grantor, from the language used. In the Coleman case we affirmed the chancellor’s conclusion that similar ambiguous instruments appeared to create a fee simple in the grantee railroad rather than an easement.

Likewise, we affirm the chancellor here because the appellants have not demonstrated his conclusion was wrong with respect to any of the deeds under consideration.

Affirmed.