text:
    James D. FLADUNG v. STATE of Arkansas
    CR 87-7
    730 S.W.2d 901
    Supreme Court of Arkansas
    Opinion delivered June 22, 1987

      Thomas E. Brown, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted of attempted capital murder and sentenced as a habitual offender to imprisonment for sixty years. He contends the court erred in (1) failing to instruct on lesser included offenses, (2) admitting prosecution evidence of a weapon test of which he had insufficient notice, (3) allowing the policeman who conducted the test to testify as an expert witness, and (4) admitting evidence of previous offenses for the purpose of applying the habitual criminal statute, when inadequate notice was provided appellant those prior offenses would be offered. We conclude it was error to refuse to instruct on lesser included offenses and, on that point, we reverse.

Before turning to appellant’s arguments, we first discuss the essential facts leading to the charges against appellant. Appellant was stopped by Arkansas State Trooper Duran because appellant’s car had one headlight out. Appellant got out of his car and approached the state police vehicle. Duran asked to see appellant’s driver’s license. Appellant said the license was not on his person, and he returned to his own vehicle and began to grope under the seat on the passenger side. When he turned to face Duran, appellant was holding a pistol. At this point, the testimony diverges. Appellant says he realized that if the trooper found the pistol he, the appellant, would be in trouble, so he pointed it in the air and began to explain that the pistol did not work. He said Duran grabbed for the pistol and it discharged, but that he did not point it at Duran and had no intention whatever of harming him.

Duran’s testimony was that, when appellant turned back towards him with the pistol, appellant was in a crouched position, aiming the pistol at Duran’s torso, and was saying something unintelligible. Duran further testified that appellant pulled the trigger at least one time, and probably twice, but that the pistol misfired; Duran was able to wrest the pistol from appellant, and thereafter arrested him.

In his first point for reversal, appellant contends that he sought instructions on the lesser included offenses of aggravated assault and assault in the first degree, claiming that the jury need not have believed he had the premeditated and deliberated purpose of killing Duran. He argues that, where there is the slightest possibility that a lesser included offense may have been committed, we will require the instruction, citing Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980).

The State responds, stating the trial court is not obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. Here, the State asserts that no rational basis existed for lesser included offenses because appellant denied pulling the trigger on the weapon, and stated he had no intention to utilize the weapon against Officer Duran. In reaching this conclusion, the State misapplies the applicable law on when lesser included instructions must be given by a trial court. We discussed this subject in some detail in our recent case of Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986).

In Doby, we held that, when a defendant’s defense is that he or she is entirely innocent of any crime, then no rational basis exists to instruct the jury on a lesser included offense because the only issue for the jury is whether the defendant is guilty as charged. The underlying facts in Doby illustrate the type situation where a lesser included instruction was found to be inappropriate. Doby was convicted of possession of a controlled substance with intent to deliver. At trial and on appeal, Doby argued the court was wrong in refusing to instruct the jury that it could find him guilty of the lesser crime of “possession of a controlled substance.” We rejected Doby’s contention because his defense was altogether premised on the fact that he possessed no drugs whatsoever.

We alluded, in Doby, to our earlier case of Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984). There, Roberts was charged with burglary and theft of property. This court held the lower court correctly denied a lesser instruction on theft by receiving because Roberts’ defense was one of alibi, viz., that he was elsewhere when the burglary occurred, that he had committed no theft, and that he had possessed a matching earring for several years and it was not the one the State brought charges against him for having stolen.

The instant case is clearly distinguishable from Doby and Roberts. Appellant was charged with attempted capital murder and, at trial, he requested lesser instructions on aggravated assault and assault in the first degree. Those lesser crimes are defined as follows:

Aggravated Assault—(1) A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another. [Ark. Stat. Ann. § 41-1604(1) (Repl. 1977) (emphasis supplied).]
Assault in the First Degree—(1) A person commits assault in the first degree if he recklessly engages in conduct which creates a substantial risk of death or serious physical injury to another person. [Ark. Stat. Ann. § 41-1605(1) (Repl. 1977) (emphasis supplied.)]

The definition of purposeful conduct and reckless conduct is set out in Ark. Stat. Ann. § 41-203(1) and (3):

(1) “Purposely.” A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.
(3) “Recklessly.” A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

When considering whether the evidence reasonably warrants giving instructions on the two foregoing crimes of aggravated assault and assault in the first degree, we first are met with the fact that appellant never denied that he had reached into his vehicle and retrieved a pistol from under his car’s front seat. Instead, appellant’s defense was based largely on why he grabbed his pistol when he did and what he intended to do with it after having retrieved it. Appellant’s and Officer Duran’s testimonies were much the same until that crucial point. It was only after appellant withdrew the pistol from the car did their stories differ in any significant way. Undoubtedly, the jury, in view of the stories given by appellant and Duran, could have believed that appellant (1) pointed the pistol at the officer and did or did not pull the trigger, (2) pointed the pistol in the air and either pulled or did not pull the trigger, or (3) explained or did not explain to the officer that the gun was inoperative. Appellant’s and Duran’s versions of what transpired give rise not only to whether appellant was guilty or innocent of intending to commit attempted capital murder, but they also raise issues as to whether appellant may have either purposely or recklessly committed the respective crimes of aggravated assault or assault in the first degree. Obviously, appellant’s action of retrieving his pistol from within his vehicle with Officer Duran standing by posed a substantial danger or risk that could have resulted in death or serious physical injury. Unquestionably, appellant’s conduct, under the circumstances variously described, could have been determined as intentional, purposeful or reckless, depending upon what inferences a jury might draw from the stories (or combinations thereof) given by the officer and appellant. The evidence and the defense offered by appellant here are not the same “all or nothing” situations posed in the Doby and Roberts cases. Accordingly, we are compelled to reverse for the trial court’s failure to give the lesser included instructions requested by appellant.

Of the remaining points raised by appellant, we need only discuss the one concerning the testimony given by the police officer who tested appellant’s pistol. Appellant’s other arguments concern the lack of notice given him regarding certain State evidence that the trial judge allowed to be admitted at trial. Because a retrial of this cause remedies those notice and admissibility issues, we restrict our further review only to the issue that remains a viable one: the admissibility of the expert testimony of Sergeant Bradshaw.

When the prosecution called Sergeant Bradshaw to testify about the test he had performed with the pistol, counsel for appellant notified the court that he questioned whether Bradshaw could testify as an expert. No objection was made at that time, as counsel stated his objection would depend upon the nature of Bradshaw’s testimony. Bradshaw testified that he had nineteen years experience as a state trooper, had spent many hours on the firing range, and had been a weapons instructor for three years. The State did not ask that he be declared an expert, but continued to question him about the test performed on the pistol. Towards the close of direct examination, appellant’s counsel objected to the testimony on the ground that Bradshaw had not been declared an expert by the court. The court responded that it found Bradshaw to be a firearms expert. The objection was then withdrawn.

Bradshaw testified about how he performed the test, and then testified that the indentations made by the firing pin of the pistol on the casings of the bullets he fired and attempted to fire looked like those on the casings and bullets in the pistol when it was taken from the scene of the altercation between Duran and appellant. At the close of Bradshaw’s testimony, counsel for appellant renewed his objection on the basis that Bradshaw had not been qualified as an expert on microscopic examination. The court stated that it had not found Bradshaw to be an expert, except to the extent of his qualifications for performing the test on the weapon, and that his testimony on the similarity in appearance of the firing pin indentations was lay testimony.

In appellant’s cross-examination of Sergeant Bradshaw, it was made clear that he was not testifying about any scientific identification of the two sets of bullets and casings. In fact, Bradshaw testified clearly that he could not say that the indentations were the same. Appellant has cited no authority to convince us there was error here. Thus, we find no error in the trial court’s ruling on this evidentiary point.

For the reasons stated above, we reverse and remand for the trial court’s failure to give the lesser included instructions on the offenses of aggravated assault and assault in the first degree.

Hickman, J., dissents.

       While not relevant here, Doby also was convicted of theft by receiving a pistol.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Charles D. RAGLAND v. Eddie W. DUMAS, d/b/a DUMAS CONSTRUCTION COMPANY
    86-297
    732 S.W.2d 119
    Supreme Court of Arkansas
    Opinion delivered June 22, 1987

      Timothy J. Leathers, Wayne Zakrzewski, Kelly Jennings, John Theis, Ann Kell, Joe Morphew, Philip Raia, Bob Jones, by: Joseph V. Svoboda, for appellant.

      Shackleford, Shackleford & Phillips, P.A., for appellee.
   Tom Glaze, Justice.

This case involves the interpretation and construction of the Arkansas Gross Receipts Act of 1941, as amended. Appellant, the Commissioner of Revenue, seeks to assess a sales tax on certain transactions performed by appellee Eddie Dumas, d/b/a Dumas Construction Company, an oil field contractor who prepares sites for oil drilling operations.

No dispute exists as to the facts and events that led to this appeal. Dumas builds temporary roads to the oil drilling sites, and prepares foundations to support drilling rigs and other heavy equipment used in the operations. On occasion, he purchases and hauls gravel and similar material to build the roads and foundations. He purchases that material from third parties, but charges his customers only his costs for the material plus a transportation fee. In this suit, appellant seeks to tax both the material costs plus the transportation fee, which represent the total amounts Dumas bills his customers on those projects requiring gravel or crushed rock.

As a result of an audit, appellant assessed Dumas sales tax, interest and a penalty in the amount of $20,907.24. After exhausting his administrative remedies, Dumas filed suit in chancery court. He argued several theories on why the sales tax should not be assessed. The chancellor agreed with one of them, finding that the extraction of oil and gas was exempt from the gross receipts tax under Ark. Stat. Ann. § 84-1904(r) and that, because site preparation and road construction were integral and direct parts of that oil and gas extraction process, such preparation and construction were exempt. The chancellor did, however, hold appellant could assess a sales tax on the clay gravel Dumas used in the construction of a foundation at one refinery—apparently finding such construction was not directly involved in the oil processing operation. Finally, the chancellor held Dumas not liable for a 10% penalty, finding there was no negligent or intentional disregard of the applicable taxing laws on the part of Dumas. On appeal, appellant argues the chancellor erred in holding that Dumas’s work was exempt under § 84-1904(r) (Repl. 1980) and that he was not liable for a penalty under Ark. Stat. Ann. § 84-4741 (c) (Supp. 1985).

The standard of review for tax exemption cases is trial de novo on the record, and we will not reverse the chancellor’s findings of fact unless they are clearly erroneous. Western Paper Co. v. Qualls, 272 Ark. 466, 615 S.W.2d 369 (1981); S.H.& J. Drilling Corp. v. Qualls, 268 Ark. 71, 593 S.W.2d 178 (1980). The party claiming an exemption from taxes has the burden of proving his entitlement beyond a reasonable doubt. C & C Machinery, Inc. v. Ragland, 278 Ark. 629, 648 S.W.2d 61 (1983). Tax exemptions must be strictly construed against exemption, and to doubt is to deny the exemption. Arkansas Beverage Co. v. Heath, 257 Ark. 991, 521 S.W.2d 835 (1975).

First, we should say we agree with appellant’s contention that § 84-1904(r) is inapplicable to the situation posed here. Section 84-1904 lists a number of exemptions from the gross receipts tax, and subsection (r), upon which the chancellor relied, exempts gross receipts or gross proceeds derived from the “sale of tangible personal property consisting of machinery and equipment used directly in the extraction of oil and gas.” Dumas argues (as he must in order to sustain the chancellor’s holding that § 84-1904(r) applies) that the gravel he uses for site preparation and road construction purposes is “machinery” or “equipment” under that provision; thus, because the gravel (as machinery or equipment) is used directly in extracting oil, Dumas claims the gravel plus the transportation costs of delivering it to the site is exempt from taxation.

We cannot accept Dumas’s argument that gravel is machinery because such a construction of the law would be inconsistent with the definition of machinery as that term has been defined by this court. In Heath v. Research-Cottrell, Inc., 258 Ark. 813, 529 S.W.2d 336 (1975), we defined a machine as “any device consisting of two or more resistant, relatively constrained parts, which, by a certain pre-determined intermotion, may serve to transmit and modify force and motion so as to produce some given effect or to do some desired kind of work.” It takes little study to arrive at the conclusion that gravel employed to construct a road totally lacks the characteristics of a machine, as that term is defined in Heath. Clearly, gravel does not transmit and modify force and motion. Thus, if Dumas’s argument of exemption is to prevail, it must do so based upon the fact that gravel, under the facts of this case, can be designated equipment, as that word is utilized in § 84-1904(r). Upon our careful analysis of § 84-1904(r), we cannot agree with such a contention.

Our court has never been called upon to define the term equipment in the context of a tax case and, more particularly, as that term appears in § 84-1904(r). We note initially that the word equipment has been referred to as an exceedingly elastic term, the meaning of which depends on context. Black’s Law Dictionary 631 (4th ed. 1968). Here, of course, the context or situation involved is whether a contractor’s gravel furnished to build temporary roads can be viewed as equipment under § 84-1904(r), used directly in the process of extracting oil. One authority relates that as the word, equipment, is used in construction contracts, it means the outfit necessary to enable the contractor to perform the agreed service, the tools, implements and appliances which might have been previously used, or might be subsequently used by the contractor in carrying on other work of like character. Ballentine’s Law Dictionary 440 (1930) (Emphasis ours.). This connotation, given the word equipment by Ballentine, appears consistent with the usage of the term where it appears elsewhere in § 84-1904(r). For example, subsection (C) of § 84-1904(r)(2) (Repl. 1980) provides that “[h]and tools, buildings, transportation equipment, office machines and equipment, machinery and equipment used in administrative, accounting, sales or other such activities of the business involved and all other machinery and equipment not directly used in the manufacturing or processing operation are not included or classified as exempt.” In sum, we believe it is clear that the General Assembly, by the use of the terms machinery and equipment, intended implements, tools or devices of some degree of complexity and continuing utility and not materials, such as gravel and crushed rock, that become fully integrated into a temporary road, the utility of which ends upon the termination of each oil-extraction project.

While we agree Dumas’s work is not exempt under § 84-1904(r), we cannot agree his transactions with his customers are subject to the Gross Receipts Act. In this respect, we emphasize that, except as is specifically provided, the term sale under that Act does not include the furnishing or rendering of service(s). Ark. Stat. Ann. § 84-1902(c) (Repl. 1980). Importantly, we find nowhere in the Act that the type contracting services provided by Dumas are specifically made subject to the gross receipts tax. See Ark. Stat. Ann. § 84-1903 (Repl. 1980) and (Supp. 1985). Under § 84-1902(c) of the Act, “sale,” in relevant part, is defined as the transfer of either title or possession for a valuable consideration of tangible personal property, regardless of the manner, method, instrumentality or device by which such transfer is accomplished. Section 84-1902(i) further provides that all contractors are deemed to be consumers or users of all tangible personal property, including materials, supplies and equipment used or consumed by them in performing any contract and the sales of all such property to contractors are taxable sales within the meaning of the Act. See Ark. Stat. Ann. § 84-1903 (Repl. 1980). By regulation, the State has defined “contractor” as any person who contracts or undertakes to construct, manage or supervise the construction, erection or substantial modification of any building or other improvement or structure affixed to real property. See Arkansas Department of Finance and Administration Regulations—Arkansas Gross Receipts Tax GR-3(c) (January 1, 1982).

In view of the foregoing authority, and particularly §§ 84-1902(i) and -1903, the appellant could have assessed a sales tax on the transactions between Dumas and the third parties who sold him the gravel. Compare John B. May Co., Inc. v. McCastlain, 244 Ark. 495, 426 S.W.2d 158 (1968) (contractor was consumer or user of items used in performance of the contract and court held sale to contractor was taxable). See also Bowers v. Oklahoma Tax Commission, 51 F.Supp. 652 (W.D. Okla. 1943) (under Oklahoma Use Tax Statute—almost identical to Ark. Stat. Ann. § 84-1902(i)—contractors, who were obliged to furnish material to build huts on army base, were users, not vendors, and therefore subject to the state use tax).

Here, appellant, from our review of the record at least, made no attempt to assess a tax on the gravel or construction material at the time Dumas purchased it from his suppliers. Instead, he seeks here to increase the amount of the taxable sale by adding Dumas’s transportation costs to the material, thus requiring him to collect the tax from his customers on this greater, total price. See Belevedere Sand & Gravel Co. v. Heath, 259 Ark. 767, 536 S.W.2d 312 (1976) (wherein Belevedere sold sand and gravel to its customers and this court upheld the State’s taxation on the total amount charged the customer, including hauling charges; unlike in the instant case, Belevedere owned the material delivered to its customers, and the actual delivery was an added service or accommodation to Belevedere’s customers).

In sum, we believe it is clear from a careful study of the Gross Receipts Act, that our General Assembly intended to impose the tax on the materials in issue here at the time of the sale between the supplier and the contractor. Thus, the Act provides for assessment of a tax when Dumas purchases his gravel, and if we accepted appellant’s argument here, the materials could again be taxed when Dumas bills his customers for constructing the roads on the site. A presumption exists that the General Assembly had no intention to impose a double taxation on the same property, at least, unless the General Assembly expressly provided by law for such double taxation. See 84 C.J.S. Taxation § 41 (1954) and 68 Am. Jur.2d Sales and Use Taxes § 13 (1973). The General Assembly not only did not provide that a double tax be imposed, it also clearly exempted services, which we hold includes the type that Dumas performs here.

Consistent with this holding, we believe it is significant that the parties stipulated that the cost of the actual materials Dumas provided his customers constituted only ten percent of the expenses involved in the transportation of the materials and the work performed on the oil-extracting sites. Thus, the record supports the view that Dumas’s delivery of the material to the sites was merely incidental to the services he provided his customers. See 68 Am.Jur. 2d Sales and Use Taxes § 76 (1973) (delivery of tangible personal property is not a sale at retail if it is merely incidental to a special service performed for the purchaser.)

In this de novo review, we hold that the transactions between Dumas and his customers were not sales and subject to assessment under the Arkansas Gross Receipts Act; and, accordingly, no penalty against Dumas should be imposed. Therefore, we affirm the chancellor’s holding but modify it to the extent that all the monies paid by Dumas shall be refunded him rather than subtracting that amount the chancellor found due based on the construction of the foundation at the MacMillan Petroleum, Inc. refinery.

Affirmed as modified.


text:
    STATE of Arkansas, Child Support Enforcement Unit v. SHERIFF OF LAFAYETTE COUNTY, Bill GRIMMETT
    87-26
    731 S.W.2d 207
    Supreme Court of Arkansas
    Opinion delivered June 22, 1987

      Gregory L. Mitchell, for appellant.

      Brent Haltom, Deputy Prosecuting Att’y, for appellee.
   Tom Glaze, Justice.

Appellant, the State of Arkansas Child Support Enforcement Unit, brings this appeal from a judgment of the Lafayette County Circuit Court, denying its petition for a writ of mandamus and finding the property in question to be a homestead.

Appellant was granted a judgment for child support arrearages owed by Leroy Johnson in the amount of $8,650.00. Johnson was ordered to pay the judgment upon receipt of a workers’ compensation settlement. Johnson received the settlement in the amount of $18,850.00, but failed to satisfy the judgment, using the money to build a house.

Appellant obtained several writs of execution for appellee to execute on the real property and house owned by Johnson. When appellee continued to refuse to execute, appellant initiated a writ of mandamus action against appellee, seeking to require him to execute on the property. Appellee responded that the writ should be denied because he claimed the property as a homestead exemption. After a hearing, the trial judge denied the petition, finding appellee was excused from executing on the property because it was Johnson’s homestead. We reverse.

First, we consider whether the mandamus should have issued. The standard of review upon denial of a petition for a writ of mandamus is whether the trial court abused its discretion. Chandler v. Perry-Casa Public Schools District No. 2, 286 Ark. 170, 690 S.W.2d 349 (1985). Mandamus is a discretionary remedy which will be granted only when the petitioner has shown a clear and certain legal right to the relief sought and no other adequate remedy. Jackson v. Munson, 288 Ark. 57, 701 S.W.2d 378 (1986). Mandamus must be to enforce the performance of a legal right after it has been established and not to establish a right; there must be no discretion available to the ordered party to perform the act. Boone County v. Apex of Arkansas, Inc., 288 Ark. 152, 702 S.W.2d 795 (1986).

There was no dispute below that appellant had a valid judgment against Johnson. Instead, appellee merely contended that he did not execute on the property because he believed to do so would have violated Johnson’s homestead. On appeal, appellee argues appellant was not entitled to a writ of mandamus because it had another adequate remedy, i.e., to go to chancery court for a determination of the homestead issue. We disagree.

The facts of this case are quite similar to those in Ghent v. State Use School Districts, 189 Ark. 747, 75 S.W.2d 67 (1934). In Ghent, the sheriff repeatedly refused to execute on a judgment the school districts had obtained against the county treasurer and his bondsman. He contended that a legislative act relieved the treasurer and bondsman from liability under the judgment. The school districts obtained a writ of mandamus. This court affirmed, holding that when a public officer is called upon to do a plain and specific public duty, which is required by law and which requires no exercise of discretion or official judgment, a writ of mandamus is an appropriate remedy to compel the performance of the duty when it is neglected or refused. The court pointed out that the sheriffs suggested alternate remedies were not adequate, stating that “an adequate remedy, as contemplated by the law, must be one which itself enforces in some way the performance of the particular duty, and not merely a remedy which in the end saves the party [,] to whom the duty is owed[,] unharmed by its performance.” 189 Ark. at 750, 75 S.W.2d at 69. As the Ghent court further noted: “It was not the business of the sheriff to consider the effect of . . . [the legislative act], but to levy the execution, and then, if the judgment debtor was aggrieved, his remedy was ample to protect his interests without the aid of the sheriff.” Id.

The Ghent case controls here. Pursuant to Ark. Stat. Ann. § 30-1001 (Repl. 1979), appellee was under a duty to execute on Johnson’s property and he had no discretion in the matter. Appellant had no other adequate remedy that was as “plain and complete and as practical and efficient to the ends of justice and its proper administration as the remedy invoked.” Ghent, 189 Ark. at 750, 75 S.W.2d at 68. Furthermore, Johnson, as the debtor, possessed the right to claim his homestead exemption either before or after the sale of the homestead on execution. See Ark. Stat. Ann. § 30-210 (Repl. 1979); see also Arkansas Savings & Loan Association v. Hayes, 276 Ark. 582, 637 S.W.2d 592 (1982).

Appellant also raises two other issues, viz., that the trial court erroneously allowed the appellee to put Johnson’s homestead exemption in issue and incorrectly determined that such an exemption exists. It is settled law that a judgment debtor’s right to the exemption is a personal right, which must be exercised by the party who seeks its benefits. Arkansas Savings & Loan Association v. Hayes, supra, and Jones v. Thompson, 204 Ark. 1085, 166 S.W.2d 1036 (1942). However, we need not reach the merits here on whether Johnson has a homestead claim since the relevant, dispositive question in this appeal is whether a mandamus writ must issue to compel the appellee to levy execution against Johnson’s property. In answering that question affirmatively, our inquiry ends.

Reversed.


author: Per Curiam.

text:
    ARKANSAS STATE BOARD OF EDUCATION, et al. v. Hon. Philip B. PURIFOY, Chancellor, et al.
    87-166
    731 S.W.2d 209
    Supreme Court of Arkansas
    Opinion delivered June 22, 1987

      Steve Clark, Att’y Gen., by: C. Randy McNair, III, Asst. Att’y Gen., for appellant.

      Smith, Stroud, McClerkin, Dunn & Nutter, by: Hays McClerkin, for appellee.
   Per Curiam.

A Writ of Prohibition is granted. The action filed by the Bright Star Independent School District in the Chancery Court of Miller County is an appeal from a decision by an administrative agency, the Arkansas State Board of Education. Such appeals are governed by the Administrative Procedure Act, Ark. Stat. Ann. § 5-701 through § 5-715 (Repl. 1976 and Supp. 1985).

The Quality Education Act of 198 3 provides appeals from rulings by the State Board of Education may be made to a “court of competent jurisdiction.” Ark. Stat. Ann. § 80-4606. We deem that court to be the circuit court. See § 5-713(b)(1). Therefore the chancery court does not have jurisdiction to entertain this suit.

Writ granted.


author: Jack Holt, Jr., Chief Justice.

text:
    Charles GREGG v. Terry C. HARTWICK, North Little Rock Mayor; Martin GIBSON, Aubrey BLANKS, Otha WARREN, Olen THOMAS, William E. GEORGE, John EVANS, Stuart VESS & Charles KIMBRELL, North Little Rock Aldermen
    87-146
    731 S.W.2d 766
    Supreme Court of Arkansas
    Opinion delivered June 29, 1987

      Charles L. Carpenter, for appellant.

      Jim Hamilton, City Att’y, by; Thomas J. Pendowski, Asst. City Att’y, for appellee.
   Jack Holt, Jr., Chief Justice.

This expedited appeal seeks a writ of mandamus ordering the appellees, North Little Rock’s mayor and aldermen, to conduct a special referendum election on the voluntary annexation of certain lands by the city. The circuit court denied the request for the writ. It is from that order that this appeal is brought. We find that amendment 7 to the Arkansas Constitution requires the city to hold an election and accordingly, reverse the trial court and direct it to issue the writ of mandamus.

The history of this case is as follows. On October 21, 1986, the Pulaski Circuit Court ordered a petition for the voluntary annexation of approximately 1,500 acres into the City of North Little Rock be granted and approved. That judgment was filed on November 21, 1986. On November 24, 1986, the North Little Rock City Council adopted Resolution No. 3075, accepting the proposed area into the city on the effective date of the circuit court judgment. Appellant, Charles Gregg, and other citizens, filed a referendum petition on December 22, 1986, to refer Resolution No. 3075 to a vote of the people for their approval or rejection. The petition contained a sufficient number of signatures to be a valid petition. The city council has not referred the resolution to a vote of the people because the council does not regard the resolution as “municipal legislation” properly subject to a referendum. When the council refused to act, Gregg filed this action in Pulaski Circuit Court on March 20, 1987, seeking a declaratory judgment that the resolution was “municipal legislation” and therefore subject to the referendum, and a writ of mandamus, directing the council members to call a special election. The trial court denied the requested relief.

The purpose of a writ of mandamus is to enforce an established right or compel the performance of a duty. Lewis v. Conlee, Mayor et al., 258 Ark. 715, 529 S.W.2d 132 (1975). Amendment 7 provides in pertinent part:

The initiative and referendum powers of the people are hereby further reserved to the local voters of each municipality and county as to all local, special and municipal legislation of every character in and for their respective municipalities and counties, . . .
Every extension, enlargement, grant, or conveyance of a franchise or any rights, property, easement, lease, or occupation of or in any road, street, alley or any part thereof in real property or interest in real property owned by municipalities, exceeding in value three hundred dollars, whether the same be by statute, ordinance, resolution, or otherwise, shall be subject to referendum and shall not be subject to emergency legislation.

We first address whether the city council’s resolution must be considered “local, special and municipal legislation” to which referendum powers apply. This court has explained that the test for determining whether a resolution is municipal legislation “is to determine whether the proposition is one that makes new law or to execute a law already in existence. The power or authority to be exercised is legislative in its nature if it prescribes a new policy or plan; while on the other hand, it is administrative in its nature if it simply pursues a plan already adopted by the legislative body...” City of North Little Rock v. Gorman et al., 264 Ark. 150, 568 S.W.2d 481 (1978); Greenlee et al. v. Munn, Clerk et al., 262 Ark. 663, 559 S.W.2d 928 (1978); and Scroggins v. Kerr, 217 Ark. 137, 228 S.W.2d 995 (1950).

In applying this test, however, we are mindful of the fact that we have long held that amendment 7 is to be liberally construed in order that its purposes may be effectuated. Leigh & Thomas v. Hall, Secretary of State, 232 Ark. 558, 339 S.W.2d 104 (1960). In that case we stated:

Amendment No. 7 permits the exercise of the power reserved to the people to control, to some extent at least, the policies of the State, but more particularly of counties and municipalities, as distinguished from the exercise of similar power by the Legislature, and, since that residuum of power remains in the electors, their acts should not be thwarted by strict or technical construction. ... In construing this amendment, it is our duty to keep constantly in mind the purpose of its adoption and the object it sought to accomplish. That object and purpose was to increase the sense of responsibility that the lawmaking power should feel to the people by establishing a power to initiate proper, and to reject improper legislation.

In Lewis v. Conlee, Mayor, et al., supra we quoted Cochran, Mayor v. Black, 240 Ark. 393, 400 S.W.2d 280 (1966) as follows:

We are firmly committed to a liberal construction of constitutional Amendment No. 7, bearing in mind the purpose of its adoption and the object it sought to accomplish. This amendment provides a necessary and potent protection against ill-advised, oppressive or improvident legislative functions, and actions of the electors thereunder, in attempting to obtain relief, should not be thwarted by strict or technical construction . . . . We are neither authorized nor remotely inclined to disturb the proper application of this wholesome constitutional reservation of power to the people.

Applying the aforementioned test under the terms of the amendment, we hold that the resolution approving the annexation was municipal legislation in that it was a new law. The statutory procedure for annexing land provides that, before the annexation is final, the city council must pass an ordinance or resolution accepting the territory. Ark. Stat. Ann. §§ 19-305,19-306 (Repl. 1980). Since confirmation of the annexation is dependent on this action by the city council, such action cannot be considered merely the execution of a law already in existence. Rather the power exercised by the city council prescribes a new law and is municipal legislation. In addition, amendment 7, by its terms, provides that any resolution enlarging or extending a franchise shall be subject to referendum. A resolution approving an annexation pertains to an enlargement or extension of the services offered by the city to a new area. Therefore, when the city passed the resolution approving the annexation, the voters acquired a right to hold an election. Since the voters have an established legal right, mandamus should issue to compel the election.

The North Little Rock mayor and alderman argue that, if an election is ordered, it should be postponed until a decision has been handed down by this court in an appeal that was taken of the circuit court judgment entered November 21, 1986. We decline to postpone the election. We explained in Lewis v. Conlee, Mayor et al., supra, that the matter of setting a date for an election is normally a matter of legislative discretion, but that that discretion cannot be exercised in a fashion that would nullify the intent of amendment 7. The same is true here. The people have a right, under amendment 7 to an election on the resolution passed by the city council. It is therefore up to the city to hold the election within a reasonably prompt period of time.

Accordingly, the judgment is reversed and the cause is granted with directions to the Pulaski Circuit Court to issue its writ directing the North Little Rock City Council to set the referendum election, involved herein, within a reasonably prompt period of time.


author: Darrell Hickman, Justice.

text:
    George and Cassandra McDONALD v. Gary L. EUBANKS
    86-233
    731 S.W.2d 769
    Supreme Court of Arkansas
    Opinion delivered June 29, 1987

      Art Dodrill, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellee.
   Darrell Hickman, Justice.

This is a legal malpractice case. George and Cassandra McDonald retained Gary Eubanks to represent them in a personal injury lawsuit which was tried in Saline County. In that action the jury returned a verdict for the defendant which meant that the McDonalds lost their case. Eubanks failed to file an appeal. The McDonalds filed suit against Eubanks for negligence in the way he handled their lawsuit. Eubanks moved for summary judgment. The motion was accompanied by an affidavit by Eubanks and two other lawyers who represented the other side in the personal injury lawsuit. The record also contained answers by Eubanks to interrogatories. The trial judge initially granted summary judgment on the basis that Eubanks had made a prima facie case for summary judgment and the McDonalds did not submit any counter evidence. Later, however, the judge set aside his order and ordered Eubanks to answer additional interrogatories. He also gave the McDonalds at least two weeks in which to respond to the motion with counter affidavits or evidence disputing that of the lawyers, who were considered experts. It was the position of the McDonalds that such affidavits were not necessary since the affidavits were conclusory in nature, there was other evidence in the record countering those affidavits, and Eubanks had not yet made a case for summary judgment. The trial judge indicated that expert testimony by a lawyer would be necessary to refute the affidavits submitted by Eubanks because the question was one that a jury could not decide without such expert testimony. In other words, how would a jury know if Eubanks’ negligence caused the loss of the lawsuit, and how would the jury know that even if an appeal were taken there was a likelihood the McDonalds would win on appeal unless the McDonalds produced evidence from experts telling them that was the case.

The judge again granted summary judgment. He should have denied it.

When considering a motion for summary judgment, the rule is that the movant has the burden of demonstrating there is no genuine issue of fact for trial. Affidavits supporting such a motion are to be construed against the movant. Hughes Western World v. Westmoor Mfg., 269 Ark. 300, 601 S.W.2d 826 (1980). The question to be resolved in a summary judgment is factual — are there any material facts in dispute? ARCP 56(e). Affidavits which are conclusory rather than factual are insufficient to support a motion for summary judgment. Brewington v. St. Paul Fire & Marine Ins. Co., 285 Ark. 389, 687 S.W.2d 838 (1985). If a movant makes a prima facie case with his motion for summary judgment, with accompanying evidence, then the burden shifts to the other party, and that party must then come forward with proof to demonstrate that there is a genuine dispute on an issue of a material fact. Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982); Cummings, Inc. v. Check Inn, 271 Ark. 596, 609 S.W.2d 66 (1980).

The issue in this case was the negligence of Eubanks and whether his clients, the McDonalds, were damaged by it. Eu-banks conceded he was negligent in not filing the appeal. He contends, however, that it makes no difference because the case could not have been won on appeal; there was no chance the case would be reversed. The McDonalds also alleged other acts of negligence by Eubanks in the preparation and trial of the lawsuit.

It is our judgment that Eubanks did not make a case for summary judgment. His affidavit and that of the two lawyers were almost entirely conclusory and were absent of facts which would counter the specific allegations by the McDonalds of negligence. The affidavits submitted by Eubanks in support of his motion for summary judgment said that the lawyers were familiar with the case and that Eubanks had at all times possessed and used the legal competence and skill possessed by lawyers in good standing in the legal profession. In their opinion Eubanks was diligent; and even if an appeal had been filed, the jury verdict would have been upheld.

McDonald swore in his affidavit that Eubanks told him that he would win on appeal and that McDonald’s only recourse was to get a lawyer and sue him, Eubanks. The record also contained a conversation between McDonald and Eubanks after it was learned that Eubanks did not perfect an appeal. In that conversation Eubanks said:

... I did it; I screwed up, and I did not do it through ignorance. I did it through stupidity . . . Now what are your options at this point. You have a lawyer that has screwed up, who has a million dollars worth of insurance. Unfortunately, I, there is a probability that the other side will screw up. I don’t think that there is very much possibility that they will. . . This is my fault and you know if you get a lawyer you don’t have to worry about me taking the stand and saying it wasn’t my fault... I mean you, you have what is almost an open and shut case. You search all over town to be sure that the lawyer that you’re going to hire is the best lawyer in town for the job. . .Anyway it all is not lost, the jury doesn’t like Gary Eubanks down there. They like Fred Swaim and I don’t want to be sued.

When the rules for summary judgment are applied, we have essentially conclusory affidavits filed by Eubanks and the two lawyers. We have Eubanks’ answers to interrogatories. We have the specific allegations of fact made by the McDonalds alleging negligence, the sworn affidavit by George McDonald, and Eubanks’ conversation with him. The motion should have been denied.

Reversed and remanded.


author: Steele Hays, Justice.

text:
    Opal JOHNSON v. Winford JOHNSON, Winnie MORTON and Wilma TURNEY
    85-295
    732 S.W.2d 121
    Supreme Court of Arkansas
    Opinion delivered June 29, 1987

      Lynn Law Firm, by: Terry J. Lynn and Rebecca L. Lynn, for appellant.

      Stripling & Morgan, by: Dan Stripling, for appellees.
   Steele Hays, Justice.

This appeal concerns the effect of a will which was not probated within the five years allowed under Ark. Stat. Ann. § 62-2125 (Repl. 1971). Clarence Johnson died in 1978 survived by his widow of many years, appellant Opal Johnson, and by three children of a former marriage, the appellees. His will, which was never probated, divided his estate into two trusts, the Opal Johnson Trust and the Clarence Johnson Family Trust. Opal Johnson was to receive the net income from both trusts until her death, but if she remarried the income from the family trust would terminate and the corpus would be distributed to the appellees. When Clarence Johnson died his estate consisted of a farm and several certificates of deposit. The CD’s were consolidated into one certificate for $49,000 issued to “The Estate of Clarence Johnson.” The certificate remained with the Clinton State Bank and interest generated by the CD was paid to Opal Johnson with the approval of the appellees.

In 1985 Mrs. Johnson remarried and the children filed a petition in the Van Burén Chancery Court alleging that their father had died intestate and asking that the $49,000 be divided one-third to Opal Johnson and two-thirds to them as heirs of Clarence Johnson. Opal Johnson responded by asking that the will be admitted pursuant to Ark. Stat. Ann. § 62-2126.1 (Repl. 1971) to prove her entitlement to one-half of the assets of the estate. The chancellor held that the Clarence Johnson will was not subject to probate, more than five years having elapsed since the testator’s death, that § 62-2126.1 was not applicable, and that distribution of the estate should be governed by the laws of intestate succession, dower and homestead. Mrs. Johnson has appealed, contending the trial court’s decision that § 62-2126.1 is inapplicable is clearly erroneous. We think the chancellor ruled correctly.

In 1981 the legislature adopted Act 347 (codified as Ark. Stat. Ann. § 62-2126.1). Section 1 of the Act reads:

Except as provided in Section 66 of Act 140 of 1949, as amended, the same being Arkansas Statutes 62-2127, to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of probate by the Probate Court, except that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if (1) no proceeding in Probate Court concerning the succession or administration of the estate has occurred, and (2) either the devisee or his successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent’s title during the time period for testacy proceedings.

Section 2 of the Act provides that the Act is intended to supplement “existing laws relating to the time limit for probate of wills, and the effect of unprobated wills, and shall not be construed to repeal [§ 62-2125] and [§ 62-2126].” The two sections referred to are the requirement for probating a will within five years and the proviso that “no will shall be effectual for the purpose of proving title to or the right to possession of any real or personal property disposed of by will until it has been admitted to probate.” (§ 62-2126).

The avowed intent of the 1981 enactment was not to alter existing laws affecting the timely probate of wills in order to give effect to their provisions, but to evidence a claim of ownership by one who has been in possession of property consistent with the terms of an unrevoked will which was not probated. There are two essentials to the application of § 62-2126.1 — that the will is unrevoked and the claimant is in possession of the property. Here it was undisputed that the certificate of deposit remained in the possession of the Clinton State Bank, payable to “The Estate of Clarence Johnson.” That fails to comply with the requirement of the law.

Mrs. Johnson argues that she was in “possession” of the property in that she received the income. But we interpret the language and intent of § 62-2126.1 to be that actual possession, rather than constructive, is contemplated for the enactment to apply and we are not inclined to extend the provision beyond its express terms.

Affirmed.


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

text:
    Carol Ann LAYMAN v. William Joseph LAYMAN
    86-269
    731 S.W.2d 771
    Supreme Court of Arkansas
    Opinion delivered June 29, 1987

      Hall, Wright, Morris & Tharel, P.A., for appellant.

      Stanley, Harrington & Watson, P.A., by: Jeff H. Watson, for appellee.
   Steele Hays, Justice.

The issues presented by this appeal of a divorce suit are 1) whether stock in a family corporation was a gift to the husband, 2) whether the increased value of that stock became marital property and 3) whether an alimony allowance was adequate. We affirm on points 1 and 3 and reverse on point 2.

Carol and Joe Layman divorced after thirty-one years of marriage. Mrs. Layman was a housewife and the mother of three children. Mr. Layman has worked entirely for Layman’s, Incorporated, a hardware and furniture business founded some forty years ago by his parents, though not incorporated until 1978. Joe Layman and his brother manage Layman’s.

Joe Layman receives a salary of $91,000 per year and a bonus of $91,000. He has acquired common and nonvoting preferred shares of stock in Layman’s, Incorporated, from his parents in annual amounts since the company was incorporated in 1978. An accountant estimated the stockholders’ equity of the company to be $1,141,806, compared to $707,950 in 1980. The growth of the company has been due in part to the management skills of Joe Layman and his brother.

When Joe and Carol married she was employed at the telephone company, having left college after one semester. She testified that after the children finished elementary school she told Joe she wanted to go back to school. Joe did not want her to work, however, so she remained a housewife until about three years ago when, at Joe’s request, she started working one day a week at Layman’s. Since the separation she works three days a week at Bible Believers Cassettes, earning $4.50 per hour.

The parties agreed on a partial distribution of assets and the chancellor divided disputed items. He held that $106,000 of a debt due Layman’s was marital property, but ordered Mr. Layman to pay Mrs. Layman $53,000 as alimony, ordered Mr. Layman to pay Mrs. Layman $30,000 for her interest in certain real estate, gave possession of the home to Mr. Layman with Mr. Layman to assume mortgage payments and certain miscellaneous debts. The chancellor rejected Mrs. Layman’s claim that stock in Layman’s was marital property. Mr. Layman was ordered to pay monthly alimony to Mrs. Layman of $ 1,075.00 for five years.

1

Mrs. Layman contends the chancellor erred in refusing to find that shares of common stock in Layman’s, Incorporated, in the name of Joe Layman were marital property, finding instead that the stock was a gift to Mr. Layman from his parents. Mrs. Layman concedes the shares of nonvoting, preferred stock are separate property under Ark. Stat. Ann. § 34-1214(B)(1) (Supp. 1985), because gift tax returns were filed with the IRS in connection with the transfer of preferred stock. However, no gift tax returns were filed as to the shares of common stock and on that basis she urges it was wrong to exclude the common stock from the marital estate. But the absence of a gift tax return, while some evidence of the intent, is not conclusive of the issue. It was not seriously disputed that the elder Laymans wanted to transfer the ownership of Layman’s to their two sons and all the stock transferred to Joe Layman was issued in his name alone. An accountant testified that no gift tax returns were filed because the transfers were not from one family member to another, but directly from the corporation. We find no proof from which it might be inferred the stock was acquired by Joe Layman other than as a gift from his parents. The chancellor’s finding that the stock in Layman’s, Incorporated, was derived by gift was not clearly erroneous. ARCP 52. Lyons v. Lyons, 13 Ark. App. 63, 679 S.W.2d 811 (1984).

II

Mrs. Layman contends the stock in Layman’s, even if acquired by gift, has appreciated during the marriage because of the time, effort and skill of Joe Layman, and as those are assets of the marital estate she is entitled to share in the fruits of those endeavors. We sustain the argument.

In Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983), we pointed out that under our statutory scheme, all property acquired by either spouse subsequent to the marriage is presumed to be marital property except for five specific exceptions: a) property acquired by gift, bequest, devise or descent; b) property acquired in exchange for other nonmarital property; c) property acquired after a decree of divorce from bed and board; d) property excluded by agreement; and e) the increase in value of property acquired prior to the marriage.

We have never decided whether the increase in value of nonmarital property acquired by one spouse subsequent to the marriage is marital property, but it is at least arguable that § 34-1214 includes increases in value of property acquired subsequent to the marriage by pointedly excluding from the marital property umbrella only increases in value of property acquired prior to the marriage. The specific exclusion of property acquired before the marriage carries an implication that property acquired after the marriage is covered. However, the courts which have considered similar statutory schemes have almost uniformly rejected such an interpretation, holding that an increase in value of property acquired by one spouse not attributable in any manner to any combination of funds, property, or effort by either spouse constitutes separate property if the property otherwise qualifies as nonmarital property. See cases cited at 24 ALR IV 451. Hull v. Hull, 591 S.W.2d 376 (Mo. App. 1979); In re Marriage of Kommick, 84 Ill. 2d 89, 417 N.E.2d 1305 (1981).

The distinguishing factor here, of course, lies in the fact that the increases in value of the nonmarital property, the stock in Layman’s is attributable in part to the time, effort and skill of Joe Layman over an extended period of time. Those endeavors belonging to the marital estate [Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984)], it follows that Mrs. Layman is entitled to share in the fruits of such efforts. There is sound authority for this view. In Jensen v. Jensen, 629 S.W.2d 222 (C.A. Tex. 1982), it was held that the enhanced value of stock owned by the husband in a closely held corporation was marital property, even though acquired prior to the marriage, where the increased value was due primarily to the time, toil and effort of the husband. In re Marriage of Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977), the appellate court reversed the trial court’s finding that a stock portfolio belonging to the wife was not enhanced by the time and talent of the husband so as to render the increase in value marital property. To the same effect see Cockrill v. Cockrill, 601 P.2d 1334 (C.A. Tex. 1938). In re Marriage of Fleet, 701 P.2d 1245 (C.A. Col. 1985). In the second Potter case [Potter v. Potter, 288 Ark. 133, 703 S.W.2d 442 (1986)], without deciding the question, we noted that an increase in the value of nonmarital property was a matter of statutory interpretation which might vary with the fact situation. And see The Arkansas Marital Property Statute and The Arkansas Appellate Courts: Tiptoeing Together Through the Tulips, Vol. 7, UALR L. J. No. 1, at p. 36. We conclude that when one spouse makes significant contributions of time, effort and skill which are directly attributable to the increase in value of nonmarital property, as in this case, the presumption arises that such increase belongs to the marital estate.

On remand the chancellor should determine the present fair market value of the stock in Layman’s, Incorporated, reduced by the fair market value of the stock at the time of acquisition. The difference should be treated as marital property. That does not, of course, mandate that such amount be divided equally, but it is not to be deemed the separate estate of Mr. Layman for purposes of an equitable division of assets.

III

The chancellor allowed alimony in the amount of $ 1,07 5 per month to terminate at the end of five years, no doubt to promote rehabilitation. Mrs. Layman is aged 50, with neither training nor education, and she urges on appeal the award is inadequate in light of the relative earning potential of the parties. However, our decision with respect to the increase in Layman’s stock improves the division of property to some extent and we are not persuaded the chancellor’s discretion in the allowance of alimony has been abused. Mickle v. Mickle, 252 Ark. 468, 479 S.W.2d 563 (1972). We leave the award undisturbed.

Affirmed in part, reversed in part and remanded.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority’s holding that the common stock shares in Layman’s, Inc. are not marital property. The shares were acquired during the marriage and were not acquired by gift, exchange or inheritance. See Ark. Stat. Ann. § 34-1214 (Supp. 1985) and Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983).

       Ark. Stat. Ann. § 34-1214 (Supp. 1985).


author: David Newbern, Justice.

text:
    MONARK BOAT COMPANY v. Alfred J. FISCHER, d/b/a SALT FORK MARINA
    87-34
    732 S.W.2d 123
    Supreme Court of Arkansas
    Opinion delivered June 29, 1987

      Arnold, Hamilton & Streetman, by: William S. Arnold, for appellant.

      Bailey, Trimble & Sellars, by: Peter O. Thomas, Jr., for appellee.
   David Newbern, Justice.

The principal issue presented in this appeal is whether a party against whom a judgment has been rendered in Ohio, and who contested the matter of personal jurisdiction there, may assert lack of personal jurisdiction of the Ohio court when the judgment is sought to be registered in Arkansas. Other issues are: whether the court erred in failing to register a judgment in favor of the appellant rendered on its counterclaim in the Ohio proceedings; whether the court erred in admitting the Ohio court’s “findings of fact and conclusions of law” into evidence in the registration proceeding; and whether the trial court erred in considering Ohio law as to interest on the judgment to be registered absent separate, written, notice to the appellant that it would be considered.

We find no error because: (1) the Ohio court’s determination that it had personal jurisdiction of the appellant was res judicata, and thus binding on the appellant in the Arkansas registration proceeding; (2) the court did not err in failing to register the judgment rendered on the counterclaim, as there was no request by the appellant that it do so; (3) the “findings of fact and conclusions of law” were contained in a document which was self-authenticated in accordance with the Arkansas Rules of Evidence, and thus its admission into evidence was not improper; and (4) there was no error in considering Ohio law on interest because the appellee’s pleading was sufficient to notify the appellant it would be considered.

The appellant manufactured boats in Arkansas and shipped them to Ohio where they were purchased by the appellee, a dealer. The appellee sued the appellant in an Ohio court, alleging that the appellant had, on one occasion, shipped its product to the appellee on a trailer, and that the trailer was returned to the appellant loaded with an engine owned by the appellee which later was converted by the appellant to its own use. The engine apparently was intended to be used by the appellee in a boat which was to be manufactured by the appellant, but was instead used by the appellant for its own purposes. A judgment was entered in favor of the appellee by the Ohio court for conversion in the amount of $5,250. On its counterclaim, the appellant received a judgment in the same proceeding for $383.04 “on plaintiffs [appellee’s] account.” The judgment for the appellant appeared in a separate paragraph and was not the basis of a set-off against the appellee’s judgment.

The appellee sought, in the Drew County Circuit Court, to register the judgment in its favor pursuant to the Uniform Enforcement of Foreign Judgments Act, codified as Ark. Stat. Ann. §§ 29-801 through 29-818 (Repl. 1979). The appellant opposed registration, contending that the Ohio court had lacked personal jurisdiction of the appellant. The circuit court held that the Ohio court had jurisdiction of the appellant because the appellant had sought affirmative relief there by its counterclaim. The judgment was ordered registered and entered awarding the appellee $7,456, consisting of $5,250 principal, $2,104 interest, and $101.85 court costs (apparently rounded to the nearest dollar).

1. Res judicata

We need not get to the arguments of the parties over whether the court properly asserted jurisdiction of the appellant on the basis that the appellant had sought affirmative relief in the Ohio court or had been doing business there in a manner sufficient to invoke the Ohio long arm statute. When the appellant appeared in the Ohio court to contest the matter of whether that court had personal jurisdiction of it, it subjected itself to the jurisdiction of that court to determine that issue. The decision of the Ohio court that it had jurisdiction of the appellant was binding on the appellant, and while it could have appealed that decision, it could not attack it in a collateral proceeding, such as the one before us now, because of the doctrine of res judicata. Baldwin v. Iowa State Travelling Men’s Association, 283 U.S. 522 (1931); Mount Holly Sunoco v. Executive Commercial Services, LTD., 164 N.J. Super. 429, 396 A.2d 1155 (1978); Restatement (Second) of Judgments § 81 (1982); Restatement (Second) of Conflicts of Laws § 96 (1971); Developments in the Law State Court Jurisdiction, 73 Harv. L. Rev. 909 (1960).

2. The appellant’s judgment

The Ohio court issued a judgment in favor of the appellant on its counterclaim against the appellee, and the appellant contends that that judgment should have been registered by the Arkansas court because it was a part of the judgment the appellee sought to have registered. The difficulty with that argument is that the appellant did not ask that the court register the judgment in its favor. We will not reverse the trial court for failure to award relief for which no request was made. Story v. American States Insurance Company, 288 Ark. 257, 704 S.W.2d 162 (1986).

3. Admissibility of findings and conclusions

The appellant contends the trial court erred in admitting the Ohio court’s findings of fact and conclusions of law because they had not been properly authenticated. This point is significant because in its findings of fact and conclusions of law, but not in the judgment sought to be registered, the Ohio court concluded that it had jurisdiction of the “case” pursuant to Ohio Civil Rule 4.3(A)(1), which is a “long arm” provision dealing with establishment of personal jurisdiction by service of process on nonresidents of Ohio who transact business in Ohio. It is this finding or conclusion we hold, in Point 1 above, binding on the appellant in these proceedings.

The appellant contends that Ark. R. Civ. P. 44(a)(1) permits authentication of a record of another state only by official publication or by an attested copy accompanied by a certificate that the officer has official custody of the document, and there is no such certificate of custody accompanying the findings and conclusions document. Arkansas Rules of Evidence 902, however, describes certain documents as “self-authenticated.” They include, at A.R.E. 902(4), “[a] copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office . . . certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1). . . .” Paragraph (1) permits introduction without extrinsic evidence of authenticity of domestic documents under seal, including “[a] document bearing a seal purporting to be that of. . . any state . . . or of a political subdivision, officer, or agency thereof, and a signature purporting to be an attestation or execution.”

The document in question here bears a seal purporting to be that of the Common Pleas Court of Guernsey County, Ohio, and it bears a certification that it is a true copy of the original, signed by a person purporting to be the Clerk of Courts, Guernsey County, Ohio. We have no doubt that the document was a self-authenticating one, and that no extrinsic evidence of its authenticity was required. It was thus admissible as an official record.

4. Judicial notice of foreign law

The appellant’s final point is that Ark. R. Civ. P. 44.1 requires that a party who intends to raise a matter of foreign law must give written notice, and that it was thus error for the trial court to apply the Ohio ten percent interest rate to the judgment, as no notice had been given the appellant that the appellee intended to rely on the Ohio law in that respect.

In his pleading the appellee sought registration of the Ohio judgment pursuant to Ark. Stat. Ann. § 29-801, et seq. The Uniform Registration of Foreign Judgments Act encompasses §§ 29-801 through 29-818. While the use of the term “ci seq” is an inartful means of making reference to the codification of the entire act, we find it was sufficient notice to the appellant that the appellee would proceed according to all of the act’s provisions. Section 29-814, in pertinent part, provides: “When a registered foreign judgment becomes a final judgment of this state, the court shall include as part of the judgment interest payable on the foreign judgment under the law of the state in which it was rendered . . . .” By notifying the appellant that registration of the Ohio judgment was sought pursuant to the act, the appellee placed the appellant on notice it could expect interest to be levied in accordance with the law of Ohio.

Affirmed.


text:
    Shelton DAVIS v. Ima M. Darby ARINGE
    87-1
    731 S.W.2d 210
    Supreme Court of Arkansas
    Opinion delivered June 29, 1987

      Meredith Wineland, for appellant.

      W. J. Walker and Frank A. Poff, Jr., for appellee.
   Tom Glaze, Justice.

This case is a will contest and involves whether the will of the decedent, Carlton Taylor, was revoked by operation of law, pursuant to Ark. Stat. Ann. § 60-407 (Supp. 1985). The chancellor admitted the will to probate, holding § 60-407 was inapplicable to the situation posed here, and the will provision favoring Ima M. Darby, as residual legatee and devisee, was valid.

The parties have no dispute as to the facts. Taylor had executed a will nominating Darby (now Aringe) as executrix and leaving his entire estate to her, with the exception of a one-dollar bequest to his brother. Thirteen months later, Taylor married Darby, but after two years of marriage, the parties were divorced. Taylor died nineteen months after he obtained the divorce, without having changed his will. Darby petitioned to probate Taylor’s will, and Shelton Davis, Taylor’s cousin and sole heir, contested the will, claiming it had been revoked under § 60-407 because Taylor had married and divorced Darby since the will had been executed. The chancellor upheld the Taylor will, reasoning that Taylor had named Darby in his will when they were friends, not spouses, and that Taylor had never changed it, even though a significant amount of time had passed (nineteen months) between the parties’ divorce and Taylor’s death.

Section 60-407 provides:

If after making a will the testator is divorced or the marriage of the testator is annulled, all provisions in the will in favor of the testator’s spouse are thereby revoked. With these exceptions, no will or any part thereof shall be revoked by any change in the circumstances, condition or marital status of the testator; subject, however, to the provisions of § 60-501.

In determining whether § 60-407 applies to the Taylor will, we believe a brief recount and understanding of the history relevant to the doctrine of implied revocation is important. At common law, a woman’s will was revoked by her subsequent marriage, but a man’s will was not, at least, unless there was both a marriage and birth of issue. Besides having been altered by the Wills Act, 1837, these two rules have been treated differently in American jurisdictions. T. Atkinson, Law of Wills § 85 (2d ed. 1953); see also 2 W. Bowe & D. Parker, Page on Wills §§ 21.89 — 21.91 (3rd ed. 1960). Professor Atkinson, in his treatise on wills, notes a legislative tendency to depart from the old rules. He further observes that a considerable number of jurisdictions, by statute, have provided a man’s marriage revokes his will, absolutely, or as to the spouse, unless the will in some way provides to the contrary. Atkinson, supra.

Similarly, the law pertaining to divorce and how it impliedly affects a testator’s will has experienced change by our state courts and legislatures. In the absence of statute, it is generally agreed in this country that a divorce, unaccompanied by a property settlement, does not revoke the testator’s will nor the legacy in the divorced spouse’s favor. However, when such a settlement exists and the jurisdiction recognizes generally the doctrine of revocation by operation of law, it is usually held that there is a revocation in favor of the divorced spouse. Atkinson, supra; accord Mosely v. Mosely, 217 Ark. 536, 231 S.W.2d 99 (1950) (discussed statutory treatment and applied rule there was no revocation by operation of law after determining § 60-407 had not yet taken effect and was, therefore, inapplicable to the situation then before the court). Here, again, legislative change has occurred in recent years. Professor Atkinson recognized in his work that, in an increasing number of states, there is legislation providing that subsequent divorce revokes provisions in favor of the spouse. Atkinson, supra, citing Moseley, supra. One authority explains this new perspective or trend as follows:

Divorce was so rare before modern legislation that it may well be treated as a new case, fairly involving the question of the application of the existing principles of common law and ecclesiastical law to a situation which could rarely, if ever, be presented under the old law for specific adjudication. It seems likely that the courts would treat divorce as a revocation if they felt that it fairly represented the intention of the average testator. The unwillingness of the courts to treat this as a revocation is due in a large part to the fact that [a] testator frequently intends his will to remain in effect in spite of the divorce. The dangers of relying on oral evidence are such that it would be unsafe to adopt a rule making the validity of the will depend upon the actual intention of the testator. The courts are thus driven to a rule which represents the probable intention of the average testator. It seems very doubtful whether the probable intention of the average testator that a prior will should not remain in force under such circumstances is so clear as to justify the courts in adding this as a new class of revocation by operation of law.

W. Bowe & D. Parker, Page on Wills § 21-101 at 523 (3rd ed. 1960) (emphasis supplied).

In 1949, our General Assembly enacted § 60-407 in order to avoid some of the legal uncertainties in probate law that had arisen in past years when dealing with marriage and divorce issues and the doctrine of implied revocation. See Note, Wills Revocation Implied from Divorce of Testator, 9 Ark.L.Rev. 182 (1955). When applying the plain language of § 60-407 to the instant case, we can only conclude that after Taylor executed his will, that will was not revoked by his marriage to Darby, but his divorce from her did revoke the will provisions made in her favor.

Darby’s view or argument in this case is inconsistent in its interpretation and application of § 60-407. She argues that the first sentence of that statute, pertaining to a testator’s divorce, applies only in instances when the testator made the will during his marriage but not before. On the other hand, Darby would apply the second sentence of § 60-407, because that provision upholds the validity and continued effectiveness of a testator’s will even though he marries after it was executed. Cf. Sughrue v. Barlow, 233 Mass. 468, 124 N.E.2d 285 (1919) (wherein the court revoked the will provision even though testator left everything to the woman he later married because the will did not show on its face the contemplated marriage). While Darby’s interpretation of § 60-407 sustains the validity of Taylor’s will and its provisions favoring her, that construction is a tortured and inconsistent application of its plain language.

In sum, to adopt Darby’s argument would require us to read language into § 60-407 that simply is not there. Clearly, § 60-407 does not provide that its provision revoking a former spouse’s bequest or devise upon divorce is dependent upon the testator having made his will during a marriage. To supply such language, we believe, would lend uncertainty and confusion to the law, which runs contrary to the very reason the General Assembly enacted this statute in the first place.

In In re the Estate of Epperson, 284 Ark. 35, 40, 679 S.W.2d 792, 794 (1984), we examined §§ 60-407 and-501 (Supp. 1985), and in doing so, made it clear that neither of these statutes makes a distinction concerning wills that predate a marriage and those made after a marriage. If such a distinction should exist, it is the General Assembly’s province to make it, not this court’s. Accordingly, we hold that § 60-407 applies in toto and that the chancellor was in error in holding otherwise.


text:
    Billy J. TILMON and Connie TILMON, d/b/a RAZORBACK HELICOPTER v. John PERKINS and SOUTHWESTERN ELECTRIC POWER COMPANY
    87-45
    731 S.W.2d 212
    Supreme Court of Arkansas
    Opinion delivered June 29, 1987

      Bullock & McCormick and Kenneth A. Hodges, for appellants.

      Davis & Associates, P.A., by: Charles E. Davis, for appellee John Perkins.

      Greenhaw & Greenhaw, by: Leonard Greenhaw, for appellee Southwestern Electric Power Company.
   Tom Glaze, Justice.

This appeal involves a tort case in which the sole issue is whether the Yell County Circuit Court erred in dismissing the appellants’ lawsuit against appellees for lack of venue. We hold the trial court’s decision was correct and, therefore, affirm.

Appellants are residents of Yell County, but they rented some land located near Eureka Springs in Carroll County, so they could operate a helicopter sightseeing business. On appellants’ first day of business, appellee, John Perkins, who owned adjoining land, confronted appellants, demanding the appellants cease their operations because their helicopter take-off and landing route went over Perkins’ property. About one week later, Perkins, who is employed by appellee Southwestern Electric Power Company (SWEPCO), was seen in a SWEPCO truck, stringing wire or cable from the treetops on his property. This wire posed a hazard to the landing and departing of the appellants’ helicopter. Shortly after this incident and when appellant Billy J. Tilmon and two customers took off in the helicopter, Perkins positioned himself in a SWEPCO truck’s cherry-picker and attempted to strike the helicopter with a pole. He repeated his attempt when the helicopter returned several minutes later. SWEPCO officials had been notified of Perkins’ actions but responded only that what Perkins did on his own time was his business.

Appellants filed this suit against Perkins and SWEPCO in Yell County, alleging that Perkins’ intentional acts and threats endangered the appellants’ lives, interfered with their business and the use of their land and, because the acts were so outrageous, caused them great emotional stress and mental suffering. Appellants further alleged that SWEPCO was negligent in the hiring and supervising of its employees, which resulted in its joint liability with Perkins for the damages suffered by the appellants.

Appellees moved to dismiss the appellants’ complaint, contending the proper venue for the suit is in Carroll County under Ark. Stat. Ann. §§ 27-601 and -613 (Repl. 1979). Appellants responded, stating Ark. Stat. Ann. §§ 27-610 (Repl. 1979) and - 611 (Supp. 1985) applied, placing venue in Yell County, where appellants reside.

We first dispose of appellants’ argument concerning § 27-611 because that statute establishes venue for damages to personal property and no such damages were alleged and prayed for in their complaint. Appellants’ only serious contention concerns § 27-610, which provides that actions for damages for personal injury must be brought either in the county where the accident causing the injury occurred, or where the injured person resided at the time of the injury. Whether the statute applies here depends on whether the appellants’ suit is one for “personal injury.” We hold it is not.

This court has construed § 27-610 on many occasions, but we believe the best discussion of the term “personal injury,” as used in that statute, appears in Robinson v. Missouri Pacific Transportation Co., 218 Ark. 390, 396, 236 S.W.2d 575, 578 (1951), wherein we quoted the following from 56 Am. Jur. Venue § 15 (1947):

A personal injury or injury to the person as these terms are used in the venue statutes is generally construed not to include every invasion of a personal right, such terms being usually limited to physical or bodily injuries.
* * *
[AJctions for alienation of affections and actions for defamation of character generally are deemed not to come within the meaning of statutory provisions governing the venue of actions for personal injuries or injuries to the person.

Consistent with the foregoing, this court repeatedly has held that corporeal or physical injuries must exist before venue can be established under § 27-610. See Odell v. Arkansas General Industries Co., 288 Ark. 356, 705 S.W.2d 438 (1986) (held inapplicable when no physical injury involved but intentional, wrongful discharge was alleged); Farm Bureau Mutual Insurance Co. v. Southall, 281 Ark. 141, 661 S.W.2d 383 (1983) (held inapplicable when tort of bad faith alleged); Arkansas Valley Industries, Inc. v. Roberts, Judge, 244 Ark. 432, 425 S.W.2d 298 (1968) (held inapplicable when abuse of prosecution, malicious prosecution, vexatious suit and false imprisonment were alleged); Shultz v. Young, 205 Ark. 533, 169 S.W.2d 648 (1943) (held applicable when alleged damages for physical injuries resulted from assaults); Coca-Cola Bottling Co. v. Kincannon, Judge, 202 Ark. 235, 150 S.W.2d 193 (1941) (held applicable when alleged physical pain and injury resulted from drinking from a bottle containing an insect). In the instant case, appellants failed to allege any physical injuries, and, instead, complained of great emotional stress, mental suffering, fear and apprehension for their well-being. These allegations are not ones that encompass personal injury within the meaning of § 27-610. Therefore, that statute is not applicable, and fails to localize appellants’ action in Yell County.

Since neither § 27-610 nor § 27-611 applies, the venue for appellants’ action must fall within the provisions of § 27-601 Fourth (injury to real property brought where property situated) or § 27-613 (general venue law involving “other actions” brought where defendants reside). In either case, appellants must file their action in Carroll County. Because we agree the trial court correctly dismissed appellants’ Yell County action, we affirm.


text:
    John Marx PRICE v. STATE of Arkansas
    732 S.W.2d 126
    Supreme Court of Arkansas
    Opinion delivered June 29, 1987

      Hollingsworth & Heller, P.A., by: Ron Heller, for appellant.
    No response.
   Per Curiam.

Petitioner John Marx Price, by his attorney, has filed a motion for a rule on the clerk. His attorney, Ron Heller, has by affidavit admitted it was his fault that the record was not timely tendered.

We find that the error, admittedly made by the criminal defendant’s attorney, is good cause to grant the motion for a rule on the clerk.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice, Tom Glaze, Justice,

text:
    Glenda BROWN, Sam BROWN, Tawana Brown ETUE, Teresa BROWN and Troy BROWN, Surviving Spouse and Next of Kin of Roy Dewayne BROWN, Deceased v. ST. PAUL MERCURY INSURANCE CO.
    87-38
    732 S.W.2d 130
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

      Hani W. Hashem, for appellant.

      Bridges, Young, Matthews, Holmes & Drake, for appellee.
   Jack Holt, Jr., Chief Justice.

Roy Dewayne Brown was a patient at the White House Alcoholism Treatment Center when he walked out of an unlocked door onto the roof of the building and either fell or jumped to his death on April 11, 1983. Nearly three years later, his surviving spouse and other next of kin, appellants, filed suit against the center’s insurer, St. Paul Mercury Insurance Co., appellee. The trial court found that Brown’s death was a “medical injury” subject to the two-year statute of limitations in Ark. Stat. Ann. § 34-2616 (Supp. 1985), and granted appellee’s motion for summary judgment. We hold that the complaint was timely filed as an action for wrongful death, which carries a three-year statute of limitations. Ark. Stat. Ann. § 27-907 (Supp. 1985). Accordingly, we reverse and remand.

The trial court concluded that the two-year limitation for actions for medical injury barred the appellants’ claim, based on the definition of medical injury in Ark. Stat. Ann. § 34-2613(C) (Supp. 1985), which provides in pertinent part that medical injury “means any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error or omission in the performance of such services, . . .”

The appellants argue that Brown’s death was not the result of a medical injury, but was caused by the treatment center’s failure to keep the premises safe for a patient in Brown’s condition. In addition, the appellants contend that even if Brown’s death was the result of a medical injury as defined in our statute, the cause of action by his survivors should be classified as a wrongful death action with its accompanying three-year limitation. We find that Brown’s death was a medical injury, agreeing however, that his survivors are given the benefit of the three-year statute of limitations under our wrongful death statutes.

Appellants’ claim that Brown’s death was not the result of a “medical injury” does not square with this court’s position in Sexton v. St. Paul Fire & Marine Ins. Co., 275 Ark. 361, 631 S.W.2d 270 (1982). In that case, an 81-year-old, mentally confused patient fell at a hospital, and died several months later from the injuries he sustained in the fall. His survivors alleged that a nurse at the hospital was negligent in not restraining the patient with a Posey vest, which had been authorized by the patient’s doctor. We found that the action was for medical injuries arising out of the professional services provided by the hospital, and held:

A hospital is required to consider the patient’s capacity to care for himself and to protect the patient from dangers created by his weakened condition. Providing a safe environment for patients is within the scope of the professional services by a hospital. Murillo v. Good Samaritan Hospital of Anaheim, 99 Cal. App. 3d 50, 160 Cal. Rptr. 33 (1979).

In the case before us, Brown’s death was alleged to be the result of negligence on the part of the treatment center in failing to properly supervise and restrain the activities of the deceased, and in failing to provide a safe place for treatment of Brown, who was known to be suffering from delirium tremens and mental disturbances associated with alcoholism. Certainly it was within the scope of the hospital’s professional services to provide a safe environment for this patient under the circumstances, and failure to do so gives rise to a medical injury under § 34-2616(C).

Even though Brown’s death is properly characterized as a medical injury, we find that appellants’ claim is founded on our wrongful death statutes and that its three-year statute of limitation applies. Ark. Stat. Ann. §§ 27-906, 27-907. In addressing this issue, both parties cite out-of-state decisions in support of their relative positions as to whether the wrongful death statutes create a new and separate cause of action which carries its own statute of limitations.

Although these cases are instructive, we stand fast on our ruling in Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968), where we held that the wrongful death statute and its specific limitations should apply.

In Matthews, tumorous tissue removed from Mrs. Matthews was wrongly diagnosed as noncancerous. When Mrs. Matthews’ condition worsened, her doctor ordered a re-examination of the tissue and it was discovered she had a malignancy. More than two years after the allegedly negligent diagnosis, but less than three years after Mrs. Matthews’ death, Mr. Matthews, as administrator of his wife’s estate, brought an action against the testing laboratory’s insurer. The complaint sought compensation for the physical and mental anguish suffered by Mrs. Matthews before her death, and for Mr. Matthews’ loss of consortium and mental anguish. The trial court dismissed the entire action, applying the two-year statute of limitations then governing medical malpractice, which provided that the date of the accrual of the cause of action shall be “the date of the wrongful act complained of, and no other time.” Ark. Stat. Ann. § 37-205 (Repl. 1962). Matthews argued that the three-year wrongful death statute should have been applied. We said:

In our opinion each statute is partly controlling. It is essential to recognize that two separate causes of action are being asserted by the appellant in his capacity as administrator of his deceased wife’s estate. The complaint seeks in part to recover compensation for the physical and mental anguish suffered by Mrs. Matthews before her death. At common law that cause of action would not have survived the death of Mrs. Matthews, but under our survival statute it may be asserted by her personal representative. Ark. Stat. Ann. § 27-901. In that situation the personal representative is asserting the decedent’s cause of action and must therefore bring suit within the period allowed by that statute of limitations which would have governed if the injured person had not died. Smith v. Missouri Pac. R.R., 175 Ark. 626, 1 S.W.2d 48 (1927). That being the two-year malpractice act in this case, the administrator’s attempt to assert Mrs. Matthews’s cause of action for her physical and mental pain and suffering is barred, because the suit was not filed within two years after the wrongful act complained of.
An administrator is also entitled to assert the cause of action for wrongful death that was created by statutes modeled after Lord Campbell’s Act. Our statute, with respect to the case at bar, creates a cause of action in the surviving spouse for his loss of consortium and for his mental anguish. Ark. Stat. Ann. § 27-909. That cause of action may be asserted, as we have indicated, within three years after the death of the person alleged to have been wrongfully killed. Here the administrator’s suit upon that cause of action was timely.
We are not overlooking the argument that the administrator’s action for wrongful death is to some extent derivative, in that it may be extinguished either by a suit for personal injuries prosecuted by the injured person to a final judgment during his lifetime, Restatement, Judgments, § 92 (1942), or by the running of the applicable statute of limitations during the injured person’s lifetime. Hicks v. Missouri Pac. R.R., 181 F.Supp. 648 (W.D. Ark. 1960), app. dism. 285 Fed. 2d 427 (1960). Here, however, the two-year malpractice statute had not run when Mrs. Matthews died on November 28, 1965. We are accordingly of the opinion that the administrator was entitled to assert the cause of action for wrongful death at any time within three years after Mrs. Matthews’s death. Where the issue is doubtful our policy is to favor the longer of two statutes of limitation. Jefferson v. Nero, 225 Ark. 302, 280 S.W.2d 884 (1955).

Granted, in Matthews, supra, we were viewing the old medical malpractice statute in light of our wrongful death statutes. However, when applied to § 34-2616(C), the result is the same. Our wrongful death statute created a new and separate cause of action which could arise if death was caused by any wrongful act and which carries its own statute of limitations as part of that right. For this reason, the medical malpractice statute of limitations is irrelevant when a patient dies from his injuries before the two-year period has run.

In their complaint, the appellants alleged damages for loss of consortium, mental anguish, and funeral expenses caused by the wrongful death of the deceased. Because these allegations fall within our statutorily created cause of action for wrongful death, coupled with our policy of favoring the longer statute of limitations when the issue is doubtful, Matthews, supra, we hold that the appellants’ complaint was timely filed.

Reversed and remanded.

Hickman, Purtle, and Glaze, JJ., concur.

John I. Purtle, Justice,

concurring. I concur with the result reached in the majority opinion. However, let the record reflect that I do not agree that the injury in this case was a medical malpractice injury. The injury and death were no more a consequence arising out of professional service than they would have been if the doctor had driven up to the institution and injured the patient by running over him with his automobile. Clearly, the cause of action in the present case did not arise during the “course of professional services.”

Hickman, J., joins.

Tom Glaze, Justice,

concurring. I join the majority in its reversal of this cause, but I must disagree with the majority holding that Brown’s death was the result of a “medical injury.” The evidence here simply does not support such a holding. Some of my reasons for disagreeing with the majority on this point are already stated in the dissenting opinion found in Sexton v. St. Paul Fire & Marine Insurance Co., 275 Ark. 361, 364, 631 S.W.2d 270, 272 (1982). Therefore, I merely adopt the dissenting views expressed in Sexton as supporting my concurrence in this case.

Hickman, J., joins in this concurrence.