author: Annabelle Clinton Imber, Justice.

text:
    Berniece BALENTINE v. Lisa SPARKMAN, et al.
    96-196
    937 S.W.2d 647
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997

      Matthews, Sanders, & Sayes, by: Margaret M. Newton and Mel Sayes, for appellant.

      Comer Boyett, Jr., and J. Russell Green, for appellee Lisa Sparkman.

      Odell Pollard, P.A., by: Odell Pollard, for appellee Jerry Howell, Jr.
   Annabelle Clinton Imber, Justice.

This cause of action arose out of a traffic accident that occurred on May 19, 1990, in Heber Springs, Arkansas, during which a station wagon owned by Berniece Balentine and driven by Billy Sparkman collided with a Jeep driven by Jerry Howell.

On the evening of May 19, 1990, Lisa and Billy Sparkman were visiting Berniece Balentine, who is Lisa Sparkman’s grandmother. While at the Balentine residence, Billy Sparkman thought he observed lightning strike a relative’s home. Lisa, Billy, and Ms. Balentine decided to drive to the home to determine if the lightning had caused any damage. Because it was dark and raining, Ms. Balentine asked Billy Sparkman to drive her station wagon, and he complied.

Billy drove the station wagon a few blocks before stopping at the intersection of Highway 25 and Scott streets. Billy asked the passengers if they detected any oncoming traffic. Ms. Balentine and Lisa told Billy that the intersection was clear. Billy drove the station wagon halfway into the intersection when it was struck in the rear passenger door by a Jeep driven by Jerry Howell. Lisa Sparkman was knocked unconscious and suffered permanent brain damage.

At trial, Ms. Balentine and Billy Sparkman testified that Howell was driving the Jeep without his headlights on, and that he did not turn on his lights until seconds before impact. However, Howell and an eyewitness told the jury that Howell did indeed have his headlights on as he approached the intersection. Immediately after the collision, Howell overheard Billy Sparkman crying and exclaiming that the accident was his fault.

Ms. Balentine and Billy Sparkman testified that Billy had not been drinking alcohol the night of the accident. Likewise, a police officer and two other witnesses testified that they did not detect the presence of alcohol on any of the parties to the accident. However, Howell, an eyewitness, and Howell’s two sisters claimed that they detected alcohol on Billy Sparkman’s breath, that he staggered, and that his speech was slurred.

The jury found that at the time of the accident Billy Spark-man was acting as Berniece Balentine’s agent, that Balentine had negligendy entrusted Sparkman with the operation of the station wagon, and that Lisa Sparkman, Billy Sparkman, and Berniece Balentine were engaged in a joint enterprise. Furthermore, the jury apportioned fault as follows: Lisa Sparkman (injured party) 0%, Jerry Howell (driver of the Jeep) 0%, Billy Sparkman (driver of the station wagon) 45%, and Berniece Balentine (owner of the station wagon) 55%. Hence, Billy Sparkman and Berniece Balentine were held legally responsible for the $250,000 in damages suffered by Lisa Sparkman.

Immediately after the jury rendered its verdict, Balentine made a motion for a judgment notwithstanding the verdict and a motion for a new trial. Both were denied, and Balentine appeals. Although the jury completely exonerated Jerry Howell of any liability for the accident, he cross-appealed alleging three trial errors.

Í. Negligent Entrustment /AMI 609 Jury Instructions.

For her first argument on appeal, Berniece Balentine alleges that the trial judge erred in a) denying her motion for a directed verdict on the issue of negligent entrustment, b) instructing the jury on negligent entrustment, and c) rejecting her motion for a judgment notwithstanding the verdict. These arguments are essentially a challenge to the sufficiency of the evidence, and thus should be considered together. See, Medlock v. Burden, 321 Ark. 269, 900 S.W.2d 552 (1995).

When reviewing the sufficiency of the evidence, this court reviews the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Anslemo v. Tuck, 325 Ark. 211, 924 S.W.2d 798 (1996). The verdict will be affirmed if there is substantial evidence to support it. Medlock, supra. Substantial evidence is evidence that passes beyond mere suspicion or conjecture and is of sufficient force and character that it will with reasonable and material certainty compel a conclusion one way or the other. Id.

In the present case, the jury found that Balentine negligently entrusted her station wagon to Billy Sparkman. To establish neghgent entrustment under Arkansas law, the plaintiff must show that: 1) the entrustee was incompetent, inexperienced, or reckless; 2) the entrustor knew or had reason to know of the entrustee’s conditions or proclivities; 3) there was an entrustment of the chattel; 4) the entrustment created an appreciable risk of the harm to the plaintiff and a relational duty on the part of the defendant; and 5) the harm to the plaintiff was proximately or legally caused by the negligence of the defendant. Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996); Mann v. Orrell, 322 Ark. 701, 912 S.W.2d 1 (1995). On appeal, Balentine alleges that there was insufficient evidence to support the jury’s finding on the first and second elements of negligent entrustment.

a. The entrustee was incompetent.

First, Balentine claims that there was insufficient evidence to support the jury’s finding that Billy Sparkman was incompetent, or in this case, intoxicated at the time of the accident. As mentioned above, several witnesses asserted that Spark-man smelt of liquor, staggered, and slurred his speech; while several other witnesses claimed that he did not appear intoxicated. This court has repeatedly held that it is the sole province of the jury to determine the credibility of the witnesses and the weight of their testimony. Russell v. Colson, 326 Ark. 112, 928 S.W.2d 794 (1996). Therefore, the jury was free to believe the witnesses who claimed that Sparkman was intoxicated over those who alleged that he was not.

Citing City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995), Balentine next argues that Sparkman’s mere consumption of alcohol did not establish that he was driving in a negligent manner. Although Balentine’s assertion of the law is correct, her application to the facts at hand is erroneous. In Cameron, the defendant crashed his car into a traffic pole owned by the City of Little Rock. Id. The officer who arrived at the scene of the accident testified that Cameron smelled of alcohol and registered a .05 percent blood-alcohol level. Id. On appeal, we held that the mere fact that Cameron had been drinking alcoholic beverages was not sufficient evidence to establish negligence. Id. Specifically, we explained that:

there was no evidence that Cameron was intoxicated or otherwise impaired at the time of the accident or that his liquor consumption either evidenced a lack of reasonable care on Cameron’s part or caused the wreck in any way. In sum, we agree that the City’s proof does not give rise to an inference of negligence but only to conjecture and speculation.

Id. (emphasis added).

This case is distinguishable from Cameron in that in addition to showing that Sparkman had consumed alcohol, the witnesses also declared that he staggered and slurred his speech. Therefore, it was reasonable for the jury to conclude that Spark-man’s consumption of alcohol had impaired his physical abilities, and more importantly, his ability to operate the vehicle in a reasonable manner. Thus, we find that there was sufficient evidence to support the jury’s conclusion that Sparkman negligently operated the station wagon.

b. The entrustor knew of the incompetence.

Balentine also attacks the jury’s finding of the second element of negligent entrustment that the entrustor knew or had reason to know of the entrustee’s incompetence. At trial, Billy Sparkman explained to the jury that prior to the accident he was at Balentine’s home, and that they drove only a few blocks before they entered the intersection where the accident occurred.

It is well settled that a jury is allowed to draw upon their common knowledge and experience in reaching a verdict from the facts proven at trial. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994). Moreover, it is appropriate for the jury to draw reasonable inferences from the facts presented at trial. Anslemo; supra. Hence, we find that the jury could have reasonably inferred that if Sparkman was intoxicated at the time of the accident, he would have also exhibited similar physical signs of intoxication moments before the accident when Balentine entrusted him with the operation of her car. Thus, we find that there was sufficient evidence to support the jury’s conclusion that Balentine negligendy entrusted the station wagon to Sparkman In view of this finding, we likewise hold that the trial court did not err in instructing the jury on negligent entrustment.

2. Motion for Mistrial.

For her next argument on appeal, Balentine asserts that she should have been granted a mistrial when Howell’s attorney repeatedly referred to evidence excluded by the trial court about the alleged presence of beer containers in the station wagon at the time of the accident.

This court has repeatedly held that a mistrial is a drastic remedy which should only be used when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when fundamental fairness of the trial itself has been manifestly affected. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996). The trial court has wide discretion in granting or denying a motion for a mistrial and absent an abuse the decision will not be disturbed. Id. Finally, a mistrial will only be granted where any possible prejudice could not have been removed by an admonition to the jury. Id.

During a pretrial conference, it was established that the Sparkmans had a six-pack of beer in their vehicle when they arrived at Balentine’s home, and that a witness would testify that he observed three unopened containers of beer in Balentine’s station wagon at the time of the accident. The trial judge held that testimony regarding both of these alleged facts was more prejudicial than probative of the issue of whether Sparkman was intoxicated at the time of the accident. Therefore, the judge granted a motion in limine excluding all evidence on either point and instructed the attorneys to approach the bench if they intended to refer to the evidence.

During her direct testimony, Berniece Balentine mentioned that Lisa Sparkman had placed glass baby bottles at her feet in the back seat of the car, and that after the accident, the police officer brought these bottles to the hospital. Despite the judge’s previous ruling and instruction to all attorneys, the following exchange occurred while Howell’s attorney cross-examined Balentine:

ATTORNEY: Did you think it was necessary to put the bottles for the baby in the floorboard under Lisa’s feet when you were making just a very short trip over to Lisa’s —
BALENTINE: Well, she always takes it with them, everywhere she goes.
ATTORNEY: Well, let me finish my question. Now, the reason you are telling us about bottles for the baby, is it because you know there’s going to be some testimony there was some beer under Lisa’s feet in that floorboard?

Balentine immediately objected and moved for a mistrial. The trial judge denied the motion, reminded Howell’s attorney to approach the bench before mentioning the subject, and warned, “if it’s done again, the Court is probably not going to have any option other than to grant a mistrial.” The judge admonished the jury to disregard the testimony, and the trial continued.

Billy Sparkman was the next witness to testify at trial. Before Sparkman began to testify, Howell’s attorney approached the bench and again asked for clarification on the motion in limine. Specifically, Howell’s attorney told the judge that Nick Benny Butkovich, III, was going to testify that he saw beer bottles on the floorboard of the Balentine vehicle. Once again the judge explained that the evidence was excluded.

Despite the trial judge’s warnings, Howell’s attorney asked the following questions during his direct examination of Nick Benny Butkovich, III:

ATTORNEY: All right. Let me ask you this. Did you see anything on the floorboard there in the car?
BUTKOVICH: Yes, Sir; I believe I did.
ATTORNEY: Tell the members of the jury what you saw on the floorboard.

The judge immediately called the attorneys to the bench, reprimanded Howell’s attorney, and sanctioned him by assessing a $25 fine. Balentine again moved for a mistrial which was denied. The judge did not admonish the jury to disregard the testimony.

We find that the express and implied references by Howell’s attorney to beer on the floorboard of Balentine’s vehicle were sufficient grounds for a mistrial; especially when there was contradictory evidence on the issue of whether Billy Sparkman was intoxicated at the time of accident. Moreover, the jury only heard brief allusions to beer containers in Balentine’s car without clarification that they were unopened. Thus, the jury could have surmised that Howell’s attorney was making reference to opened, and recently consumed bottles of beer. Simply put, Howell’s attorney rang the proverbial bell not once, but twice, and a mistrial should have been granted. Therefore, we must reverse as to all parties and remand for a new trial.

Because we reverse and remand for a new trial for the reasons stated above, we do not reach Balentine’s other arguments on appeal. We will, however, address Howell’s arguments raised on cross-appeal because they involve evidentiary matters that the trial court will address again at a new trial.

Howell’s first argument on cross-appeal is that the trial court abused its discretion in excluding evidence of beer in the Sparkman and Balentine automobiles. As mentioned above, the trial court granted a motion in limine prohibiting the parties from mentioning the presence of unopened beer containers in either the Sparkman vehicle or the Balentine vehicle. The trial judge held that this evidence should be excluded under Ark. K. Evid. 403 because the prejudicial nature outweighed the probative value. This court has repeatedly held that a trial judge’s ruling in this regard will be affirmed absent a showing of an abuse of discretion. Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993). We affirm the trial court’s order excluding the evidence because Howell has failed to demonstrate an abuse of discretion.

Howell’s second argument on cross-appeal is that the trial court committed prejudicial error when it precluded testimony that would have impeached Officer David Smith. On direct examination, Officer David Smith testified that he did not find any evidence that the parties to the accident had been consuming alcohol. Furthermore, Officer Smith said that he did not know of a request by any of the parties to have Billy Sparkman’s blood-alcohol level tested.

In an effort to impeach Officer Smith’s testimony, Howell attempted to introduce evidence that he and his father asked Officer Smith to test Billy Sparkman’s blood-alcohol level, and Officer Smith responded:

This man doesn’t need a DWI charge, he’s got more problems than he can handle now because his wife is probably going to die.

Although a witness may be impeached with prior inconsistent statements, the trial judge excluded this testimony on grounds that it was impermissible extrinsic evidence offered to prove a collateral matter. Ark. R. Evid. 613 & 801(d)(1). We disagree.

According to Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), cert. denied, 510 U.S. 1197 (1994), a matter is not collateral if:

the cross-examining party would be entitled to prove the issue as part of the case in chief, or if the evidence is relevant to show bias, knowledge, or interest.

Whether or not Billy Sparkman was intoxicated at the time of the accident was the central issue of this case; it simply was not a collateral matter. Hence, the trial judge’s ruling excluding the alleged prior inconsistent statement must be reversed as an abuse of discretion.

Howell’s final argument on cross-appeal is that the trial court committed prejudicial error when it would not permit two witnesses to testify to statements Billy Sparkman made while waiting in the hospital emergency room a short time after the accident. Specifically, Howell and his two sisters wanted to testify that they overheard Billy Sparkman exclaim several times that the accident was his fault. The trial judge excluded the evidence under Ark. R. Evid. 613 on the grounds that Sparkman would not be able to deny or respond to the statement. Because the parties could have simply recalled Sparkman to clarify his statement, Rule 613 did not apply.

However, Sparkman had already told the jury that he admitted fault at the scene of the accident. Therefore, his statements in the emergency room were merely cumulative and thus properly excluded under Ark. R. Evid. 403. Because the trial judge made the right decision for the wrong reason, we affirm as to this evidentiary ruling. See, In re Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995).

Reversed and remanded; on cross-appeal, reversed in part.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Michael William CATLETT v. STATE of Arkansas
    CR 95-10
    936 S.W.2d 555
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997

      Sandy S. McMath, Joseph M. Nursey, and Timothy O. Dudley, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Senior App. Advocate, for appellee.
   Per Curiam.

Counsel for the Estate of Stephanie Michelle Jungkind moves this court for the release of all evidence in the court’s custody as a result of the criminal appeal. See Catlett v. State, 321 Ark. 1, 900 S.W.2d 523 (1995). Counsel for the Estate requests this in order to use those exhibits in a civil trial where the cause of action arises out of the death of Ms. Jungkind.

The request for the release of exhibits to counsel for the Estate is denied. The Clerk of the Supreme Court will permit counsel for the Estate to photograph exhibits from the record of Catlett’s criminal trial and will certify those photographic copies as true and correct representations of the exhibits involved.


text:
    Michael HENDERSON v. STATE of Arkansas
    CR 97-53
    936 S.W.2d 554
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997

      William McArthur, for appellant.
    No response.
   Per Curiam.

Michael Henderson, by his attorney, has filed a motion for a rule on the clerk. We treat this motion as a motion for belated appeal.

His attorney, William McArthur, admits in his motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is therefore granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    IN THE MATTER OF CONTEMPT OF COUNSEL, J.F. ATKINSON JR.
    CR 96-633
    936 S.W.2d 747
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997

      J.F. Atkinson Jr., pro se.
   Per Curiam.

On December 8, 1995, Appellant Johnny Mark Propst entered a plea of guilty to the charge of first-degree murder and was sentenced to forty years’ imprisonment. On February 2, 1996, attorney J.F. Atkinson Jr. was appointed by the circuit court to represent Appellant on a petition filed pursuant to A.R.Cr.P. Rule 37, alleging ineffective assistance of counsel against his former attorney. After a hearing on the petition, in an order filed February 22, 1996, the circuit court denied Appellant any relief under Rule 37. A notice of appeal was filed by Appellant’s attorney on February 26, 1996. The transcript was lodged with this court on May 28, 1996.

Appellant’s attorney sought and obtained an extension of time in which to file Appellant’s brief to July 14, 1996. Appellant’s attorney next filed a motion to withdraw as counsel for Appellant on June 28, 1996, and such motion was denied by this court. Appellant’s attorney subsequently requested and was granted another extension of time in which to file Appellant’s brief to August 13, 1996. Appellant’s attorney additionally requested and was granted a third extension of time in which to file Appellant’s brief to October 12, 1996. On October 22, 1996, the clerk of this court sent a letter to Appellant’s attorney, stating that the time in which to file Appellant’s brief had expired and that it would be necessary to file a motion for belated brief.

Shordy thereafter, the State of Arkansas filed a motion to dismiss the appeal on the grounds that the time in which to file Appellant’s brief had expired and Appellant had not sought permission to file a belated brief. This court granted the State’s motion to dismiss the appeal and ordered Appellant’s attorney to appear before this court and show cause as to why he should not be held in contempt for failing to file Appellant’s brief in a timely manner.

Appellant’s brief, as well as a motion for belated brief, was finally tendered to the clerk’s office on December 20, 1996. J.F. Atkinson Jr. appeared before this court on Monday, January 27, 1996, and entered a plea of not guilty to the charge of contempt.

It is thus necessary for a hearing to be held to determine whether counsel has a meritorious defense to the charge of fading to file his brief in a timely manner. We appoint the Flonorable Robert Dudley as a Master to conduct the hearing. Counsel will have the burden of proving, by a preponderance of the evidence, that he has meritorious reasons for not filing the brief when due as prescribed by the Rules of Supreme Court, Rule 4-3.

The Master shall conduct a hearing and make findings of fact. Upon receiving the findings of fact from the Master, we will make a decision as to whether or not counsel, J.F. Atkinson Jr., should be held in contempt.


text:
    Christine M. JONES v. Jerry A. JONES
    95-1150
    938 S.W.2d 228
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997

      McNutt Law Firm, by: Mona J. McNutt, for appellant.

      Helen Rice Grinder, for appellee.
   Per Curiam.

In November 1990, the Faulkner County Chancery Court awarded Christine Jones, the appellant, a divorce from Jerry Jones, the appellee, and awarded custody of the Joneses’ son, Cameron, to Ms. Jones. In December 1992, Mr. Jones petitioned the Chancery Court to modify its original decree and award him custody of Cameron. The Chancery Court issued a series of ex parte orders that permitted Mr. Jones to retain custody of Cameron pending a final hearing on the matter, and on March 7, 1994, the Chancery Court modified its original decree and awarded permanent custody of Cameron to Mr. Jones. The Court of Appeals affirmed the Chancery Court in Jones v. Jones, 51 Ark. App. 24, 907 S.W.2d 745 (1995). On November 4, 1996, we reversed the Court of Appeals and remanded the case to the Chancery Court with instructions to reinstate the original custody decree that had awarded custody of Cameron to Ms. Jones. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). The mandate was issued on November 22, 1996.

On December 12, 1996, Ms. Jones filed a petition in this Court for extraordinary relief and expedited proceedings. In the petition, Ms. Jones stated that the Chancery Court had failed to reinstate the original custody decree in accordance with our mandate, and she asked this Court to order the immediate transfer of custody. We granted Ms. Jones’s petition in a per curiam opinion issued on December 13, 1996. See Jones v. Jones, 326 Ark. 828, 933 S.W.2d 810 (1996). The original custody decree was reinstated on the same day.

Currently pending before this Court is Ms. Jones’s petition for attorney’s fees and sanctions against Mr. Jones. The petition was filed on December 18, 1996. Ms. Jones seeks to recover $38,532.16 for the legal expenses she incurred while her case was pending in the Chancery Court from December 1992 to March 1994. She seeks to recover $33,917.02 for the legal expenses she has incurred in the course of appealing the Chancellor’s ruling of March 1994. Ms. Jones also asks the Court to impose sanctions on Mr. Jones for threatening to sue for custody of Cameron at some point in the future. Mr. Jones has moved to dismiss the petition filed by Ms. Jones.

Having examined the invoices submitted by Ms. Jones’s counsel, we conclude that Ms. Jones is entitled to recover $8,000.00 for legal services rendered in connection with the appeal of the Chancellor’s final ruling. We find ample authority-permitting an award of attorney’s fees in cases involving the modification of a custody decree. Moore v. Smith, 255 Ark. 249, 499 S.W.2d 634 (1973); Smith v. Smith, 28 Ark. App. 56, 770 S.W.2d 205 (1989); Norman v. Norman, 268 Ark. 842, 596 S.W.2d 361 (Ark. App. 1980). A court enjoys inherent authority to award attorney’s fees in such cases. Irvin v. Irvin, 47 Ark. App. 48, 883 S.W.2d 862 (1994); Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983); Payne v. White, 1 Ark. App. 271, 614 S.W.2d 684 (1981). See Schwarz v. Moody, 55 Ark. App. 6, 928 S.W.2d 800 (1996); Child Support Enforcement Unit v. Haller, 50 Ark. App. 10, 899 S.W.2d 485 (1995); Tortorich v. Tortorich, 50 Ark. App. 114, 902 S.W.2d 247 (1995). See generally Howard W. Brill, Arkansas Law of Damages § 11-6, at p. 122 (2d ed. 1990). Moreover, Ark. Code Ann. § 9-12-309(a) (Repl. 1993), which authorizes the award of attorney’s fees in divorce actions, has been construed as permitting the award of attorney’s fees in child-custody modification actions, as the latter necessarily derive or continue from the former. Robins v. Arkansas Social Services, 273 Ark. 241, 617 S.W.2d 857 (1981); Finkbeiner v. Finkbeiner, 226 Ark. 165, 288 S.W.2d 586 (1956); Hydrick v. Hydrick, 224 Ark. 712, 275 S.W.2d 878 (1955); Vilas v. Vilas, 184 Ark. 352, 42 S.W.2d 379 (1931).

Thus, in the cases cited above, we have emphasized the appropriateness of an award for attorney’s fees in child-custody modification cases. Although these cases involved the rulings of Chancery Courts on motions for attorney’s fees, we have no doubt that this Court and the Court of Appeals may, in certain circumstances, award attorney’s fees in response to motions filed originally in their respective courts. Warner Holdings, Ltd. v. Abrego, 285 Ark. 434, 688 S.W.2d 724 (1985); Olaimey v. Turk, 33 Ark. App. 28, 799 S.W.2d 572 (1990); Elkins v. Coulson, 293 Ark. 539, 739 S.W.2d 675 (1987). See also In re Smith, 183 Ark. 1025, 1026, 39 S.W.2d 703 (1931)(“We have uniformly held that this court has the power, pending an appeal in a divorce proceeding, to make an order allowing the wife costs and suit money as an incident to the appellate jurisdiction in this court.”).

The fee statements of the law firm representing Ms. Jones included not only bills for hours spent by attorneys on the case. It also included billing for “legal assistant” and “paralegal” time. In reaching our determination of the amount to award, we have not considered ourselves bound by reference to the hourly rates stated or whether the time and effort invested in the case has been that of professional or quasi-professional personnel. We have, rather, considered a number of factors. They include the factors stated in Rule 1.5 of the Model Rules of Professional Conduct and those discussed in our decisions concerning the manner of reaching an equitable determination. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979); Love v. United States Fidelity and Guaranty Co., 263 Ark. 925, 568 S.W.2d 746 (1978); Marlin v. Marsh & Marsh, 189 Ark. 1157, 76 S.W.2d 965 (1934).

Dr. Jones challenges this Court’s power to award attorney’s fees upon a motion filed originally in this Court after the issuance of the mandate. In his view, the Court lost jurisdiction over this case when the mandate issued on November 22, 1996. Alternatively, he asserts that Ms. Jones’s petition is, in essence, a petition for rehearing under Ark. Sup. Ct. R. 2-3, and that we should deny the petition on account of Ms. Jones’s failure to file it within seventeen days from the date of this Court’s decision reversing the Court of Appeals. According to Rule 2-3, a petition for rehearing must be filed within this seventeen-day period.

We reject Dr. Jones’s attempt to characterize Ms. Jones’s petition as one for rehearing. Ms. Jones’s petition is not governed by Rule 2-3 because it does not ask the Court to rehear any of the issues it considered or decided in its November 4 opinion. The question of Ms. Jones’s entitlement to attorney’s fees is a collateral matter that was not considered or decided by the Court. Thus, Ms. Jones’s petition cannot be viewed as untimely simply because it was filed more than seventeen days from the date of this Court’s decision.

We also reject Dr. Jones’s argument that we are without jurisdiction to consider Ms. Jones’s request for attorney’s fees. As mentioned, Dr. Jones believes that this Court lost jurisdiction in this matter when the mandate was issued on November 22, 1996. We concede that, in certain cases, we have held that we lacked jurisdiction to consider various motions filed after the mandate was either issued from this Court or filed in the Trial Court. See, e.g., First Pyramid Life Ins. Co. of Am. v. Stoltz, 312 Ark. 516, 849 S.W.2d 525 (1993)(holding Court lacked jurisdiction after issuance of mandate to consider motion to supplement record); Brimson v. Brimson, 228 Ark. 562, 309 S.W.2d 29 (1958)(holding Court lacked jurisdiction after mandate was filed in the Trial Court to consider motion for clarification of the judgment); American Company of Arkansas v. Wheeler, 183 Ark. 550, 36 S.W.2d 965 (1931)(holding Court lacked jurisdiction after mandate was filed in the Trial Court to consider petition for contempt).

The case at bar, however, is distinguishable from the cases mentioned above. The petition in this case requested attorney’s fees. As we have said, a motion requesting attorney’s fees is “collateral” or “supplemental” to the underlying action and the final judgment of a court. Mason v. Jackson, 323 Ark. 252, 914 S.W.2d 728 (1996); Childs v. Adams, 322 Ark. 424, 909 S.W.2d 641 (1995); Alexander v. First Nat’l Bank of Ft. Smith, 278 Ark. 406, 646 S.W.2d 684 (1983). A court’s decision concerning a party’s entitlement to attorney’s fees “require[s] an inquiry separate from its decision on the merits of the underlying action — an inquiry which [cannot] commence” until a party prevails “in the underlying action.” Marsh & McLennan of Ark. v. Herget, 321 Ark. 180, 183, 900 S.W.2d 195 (1995).

These considerations led us in the Marsh case to conclude that a Trial Court retains jurisdiction to consider a motion for attorney’s fees even after the time for filing a notice of appeal has expired. Likewise, in the Alexander case, we held that “matters that are collateral or supplemental to the trial court’s judgment,” such as motions for attorney’s fees, “are left within the trial court’s jurisdiction even though an appeal has been docketed.” Alexander, 278 Ark. at 408. See also Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 308, 896 S.W.2d 867 (1995) (holding that Trial Court retains jurisdiction to consider motions for attorney’s fees even after expiration of the filing periods in Ark. R. Civ. P. 52(b) and 59(b)).

By analogy to these cases, we conclude that this Court, even after the mandate has been issued or filed in the Trial Court, retains jurisdiction to consider a motion for attorney’s fees. We note, as Ms. Jones points out in her brief, that this conclusion is consistent with Ark. Sup. Ct. R. 6-6(c), which permits an attorney for an indigent criminal defendant to move this Court for attorney’s fees within 30 days from the date of the mandate’s issuance. See Bell v. State, 326 Ark. 1097, 935 S.W.2d 539 (1996). It is evident that, if the Court lacked jurisdiction to consider motions for attorney’s fees filed after the issuance of the mandate, Rule 6-6(c) would be meaningless.

For these reasons, we grant to Ms. Jones, who prevailed in this child-custody action, an attorney’s fee award in the amount of $8,000.00. We deny Ms. Jones’s request for sanctions. We also deny the portion of the motion requesting an award for the fees charged to Ms. Jones for her counsel’s work in the Chancery Court because that request should be made to the Chancery Court.


text:
    Michael RUSSELL v. Sheriff Gary GRIMES, Officer Seibach, Officer Layne, and Any Unknown Parties
    97-26
    936 S.W.2d 763
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997

      Appellant, pro se.
    No response.
   Per Curiam.

The appellant, Michael Russell, has filed a motion to proceed informa pauperis.

On November 20, 1995, Russell brought a replevin action against various officers of the Sebastian County Sheriff s office to recover certain items of personal property allegedly seized from him during booking. The trial court allowed Russell to proceed in forma pauperis. After a bench trial on September 9, 1996, the trial court found that there was no evidence of possession on the part of any of the defendants to sustain replevin.

Russell attempted to lodge the record in this court, when he was notified that he must remit a filing fee to the Clerk of the Court. Russell now moves this court to waive the filing fee so that the record may be lodged and a briefing schedule set.

While there is no inherent right to judicial process, the State may not withhold this process when to do so would deprive a person of a fundamental constitutional right. Boddie v. Connecticut, 401 U.S. 371 (1971). Russell has failed to demonstrate how a civil appeal from a replevin action implicates a fundamental right.

The motion is denied.


text:
    Ray SOUTH and Wilma South v. Berl A. SMITH, Special Administrator of the Estate of Nancy Walton
    96-504
    934 S.W.2d 503
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997

      Arlon L. Woodruff, for appellants/cross-appellees.

      Lyons, Emerson & Cone, by: Mike Cone, for appellee/crossappellant.
   Per Curiam.

Petitioners Ray South and Wilma South petition for rehearing and assert that this court in its decision handed down on December 9, 1996, [South v. Smith, 326 Ark. 774, 934 S.W.2d 503 (1996)], should have remanded the matter as it related to the Texas bank accounts for further proceedings on how Texas law affects distribution of those accounts. The petition for rehearing is denied.

Respondent Berl A. Smith, special administrator of the Estate of Nancy Walton, averred by affidavit that the issue relating to the Texas accounts is moot because petitioner Ray South made a voluntary payment to the Estate of the amount due from the Texas accounts plus interest. Petitioners responded that the payment was not voluntary and that this is evidenced by their posting a supersedeas bond. We disagree because we conclude the payment was voluntary.

What this court and the Court of Appeals have said is that a payment may be involuntary if an appellant is unable to post a supersedeas bond. See Shepherd v. State Auto Property & Casualty Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993); Lytle v. Citizens Bank of Batesville, 4 Ark. App. 294, 630 S.W.2d 546 (1982). Here, the petitioners posted a supersedeas bond. Moreover, petitioners claimed their payment was involuntary; yet they occupied the status of cross-appellees. Therefore, a supersedeas bond was not required. The petition for rehearing is denied.


text:
    Timothy L. WADDLE and Irene L. Waddle v. STATE of Arkansas
    CR 97-71
    936 S.W.2d 554
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997
    C. Richard Lippard, for appellant.
    No response.
   Per Curiam.

The appellants, Timothy L. Waddle and Irene L. Waddle, have filed a motion for rule on the clerk. Their attorney, C. Richard Lippard, admits that the notice of appeal was untimely filed due to a mistake on his part.

We treat appellants’ request for rule on the clerk as a motion for a belated appeal. See, e.g., Hicks v. State, 325 Ark. 192, 923 S.W.2d 872 (1996). We find that the error of failing to timely file a notice of appeal, admittedly made by counsel for criminal defendants, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

We grant the motion for belated appeal. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: W.H. “Dub” Arnold, Chiefjustice. Glaze and Imber, JJ.,

text:
    K.W. v. STATE of Arkansas
    96-201
    937 S.W.2d 658
    Supreme Court of Arkansas
    Opinion delivered February 10, 1997

      Gerard F. Glynn, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chiefjustice.

K.W., a juvenile, was detained by an intake officer on October 24, 1995. The basis for the detention was an allegation that K.W. had committed the offense of Furnishing Prohibited Articles, Ark. Code Ann. § 5-54-119 (Repl. 1993). Within seventy-two hours ofher detention, K.W. was given a detention hearing before a judge, pursuant to Ark. Code Ann. § 9-27-313 (d)(2) (A) (ii) and Ark. Code Ann. § 9-7-326(a) (Supp. 1995). At the close of the hearing, the judge released K.W. to her parents, but imposed certain restrictions and conditions on her release. K.W. brings her appeal from the order, that memorialized those restrictions and conditions. We hold that the order appealed from is not a final order and dismiss the appeal.

The facts are as follows. On the evening of October 24, 1995, K.W. was taken into custody by a Pulaski County Sheriff’s deputy. According to the deputy’s arrest report, K.W. delivered a pair of shoes to an inmate of the Pulaski County Regional Detention Facility. The soles of the shoes were found to contain “marijuana, numerous Schedule IV and Schedule II controlled substances in pill and tablet form along with tobacco and matches.” K.W. was seen by an intake officer, and she was detained until her detention hearing on the morning of October 27, 1995. At the hearing, the judge decided to release K.W. to the custody of her parents. The court’s order set a plea date of January 5, 1996, and imposed the following conditions on K.W.’s release: undergo drug and alcohol screening; reside with parents and obey reasonable commands; attend school and obey school rules; and abide by a curfew.

On appeal, K.W. argues that the intake officer’s decision to detain her was improper, thereby tainting the court’s decision to restrict her liberty pending adjudication. She cites Ark. Code Ann. § 9-27-322 (Repl. 1993), which provides that an intake officer must consider and weigh certain factors before deciding to detain a juvenile. It is K.W.’s contention that the intake officer did not weigh the statutory factors, thereby rendering her detention illegal and subjecting her to the imposition of release conditions at a detention hearing.

We do not reach the merits of K.W.’s argument because the order appealed from is not final. The requirement that an order be final to be appealable is a jurisdictional requirement. Wilburn v. Keenan Cos., Inc., 297 Ark. 74, 759 S.W.2d 554 (1988). The purpose of the finality requirement is to avoid piecemeal litigation. Lamb v. JFM, Inc., 311 Ark. 89, 842 S.W.2d 10 (1992). An order is final if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Department of Human Services v. Lopez, 302 Ark. 154, 787 S.W.2d 686 (1990). The order must put the judge’s directive into execution, ending the litigation, or a separable branch of it. Festinger v. Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978). The order appealed from in this case is an order releasing K.W. pending further hearings in the case. The hearings yet to be conducted did not involve collateral matters but rather the heart of the case. K.W. had yet to enter a plea or undergo a disposition hearing.

The order appealed from does not bear any of the indicia of finality. We must therefore dismiss the appeal.

Appeal dismissed.

Glaze and Imber, JJ.,

concur, stating that, while they agree a final order had not yet been filed from which K.W. could file an appeal, they are of the view that this court could still later reach the detention issue on the direct appeal of an adjudication order since the intake officer’s authority to detain K.W. in these circumstances might otherwise evade review.

       K.W. makes no argument on appeal that her hearing was not timely.


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

text:
    Judy SMITH v. SHELTER MUTUAL INSURANCE COMPANY
    96-217
    937 S.W.2d 180
    Supreme Court of Arkansas
    Opinion delivered February 10, 1997

      Swindoll Law Firm, by: James F. Swindoll, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: John E. Moore and Julia L. Busfield, for appellee.
   W.H.“Dub” Arnold, Chief Justice.

This is an appeal from a summary judgment entered in favor of appellee Shelter Mutual Insurance Company upholding a clause in an automobile liability insurance policy that excluded coverage to the minor son of the insured. The sole issue on appeal is whether the trial court erred in refusing to find that the exclusion was void as against public policy. We find no error and affirm.

The facts in this case are not in dispute. On February 14, 1994, Jason Lockett, a minor, was driving a 1993 Dodge van on a public road in Saline County, Arkansas, when it collided with a dump truck driven by Gerald Hobby. Tammy Smith, minor daughter of appellant Judy Smith, was a pedestrian in the area and allegedly sustained injuries as a result of the accident.

The van was insured under a policy issued by Shelter to Jason’s father, John Lockett. The policy contained a driver-exclusion endorsement providing that:

No insurance is provided by this policy while any automobile is being driven by or is under the direct control of:
Jason Lockett

This endorsement was signed by John Lockett, the policyholder.

On March 3, 1994, Smith sued John Lockett on a negligence theory. On June 3, 1994, Shelter, relying on the named-driver exclusion, filed suit for declaratory judgment, claiming that no defense or coverage was owed to Lockett. Thereafter, on June 27, 1994, Smith filed suit against Shelter, contending that she was entitled to both personal-injury protection and uninsured motorist benefits under the Lockett policy. After consolidating the Shelter declaratory-judgment action with Smith’s contract action, the trial court granted summary judgment against Smith on the basis that the policy’s exclusion of Jason Lockett as a named driver was explicit and unambiguous, and that Shelter owed no coverage and no duty to defend under the policy. The trial court further found that the named-driver exclusion was not violative of public policy. It is from this adverse ruling that Smith appeals.

When reviewing insurance policies, we adhere to the long-standing rule that, where the terms of the policy are clear and unambiguous, the policy language controls; absent statutory strictures to the contrary, exclusionary clauses are generally enforced according to their terms. Noland v. Farmers Ins. Co., 319 Ark. 449, 892 S.W.2d 271 (1995); State Farm Mutual Ins. Co. v. Cartmel, 250 Ark. 77, 463 S.W.2d 648 (1971). In construing the meaning of insurance policies:

It is unnecessary to resort to rules of construction in order to ascertain the meaning of an insurance policy when no ambiguity exists. McKinnon, Admx. v. Southern Farm Bureau Casualty Ins. Co., 232 Ark. 282, 335 S.W.2d 709 (1960). The terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was not paid.

State Farm Fire & Casualty Co. v. Midgett, 319 Ark. 435, 439, 892 S.W.2d 469, 471 (1995); quoting Southern Farm Bur. Cas. Ins. Co. v. Williams, 260 Ark. 659, 664, 543 S.W.2d 467, 470 (1976).

We initially observe that, in 1984, the Arkansas Insurance Commissioner promulgated the requirement that driver exclusion endorsements contain the insured’s signature. The Commissioner’s Bulletin No. 17-83, issued on January 2, 1984, approved exclusionary endorsements provided that the policy includes the signature of the named insured who accepts and acknowledges the restricted coverage. See also Shelter Gen. Ins. Co. v. Williams, 315 Ark. 409, 867 S.W.2d 457 (1993). Smith makes no allegation that Shelter failed to comply with the Commissioner’s requirements in this regard; rather, she claims that the exclusion of Jason Lockett violates public policy.

In advancing her public-policy argument, Smith chiefly relies on Ark. Code Ann. §§ 27-19-701 et seq. and 27-22-101 et seq. (Repl. 1994). In her brief, she recites the provision of the Motor Vehicle Safety Responsibility Act that mandates that an automobile owner or operator who has been in an accident provide proof of his or her financial responsibility for the future by filing a certificate of insurance showing that there is in effect a motor-vehicle liability policy. Particularly, § 27-19-702 sets out the circumstances under which an owner or operator must demonstrate proof of future financial responsibility:

The provisions of this subchapter requiring the deposit of proof of financial responsibility for the future, subject to certain exemptions, shall apply with respect to persons who have been convicted of or forfeited bail for certain offenses under motor vehicle laws or who have failed to pay judgments upon causes of action arising out of ownership, maintenance, or use of vehicles of a type subject to registration under the laws of this state.

We have recognized that these provisions “ha[ve] no application whatever to an insurance policy which has not been used as proof of financial responsibility in the future.” State Farm Mutual Ins. Co. v. Cartmel, 250 Ark. 77, 78, 463 S.W.2d 648, 649 (1971); quoting Aetna Casualty & Surety Co. v. Simpson, 228 Ark. 157, 163, 306 S.W.2d 117, 121 (1957). As in the Cartmel and Simpson cases, nothing appears in the pleadings of the present case to indicate that the policy issued to John Lockett had been used for the purpose of providing proof of future responsibility. Thus, because Smith has not demonstrated the relevance of this part of the Motor Vehicle Safety Responsibility Act, we need not discuss whether the named exclusion violates the public policies that these provisions were designed to advance.

Smith further argues that the compulsory motor-vehicle liability insurance law, Ark. Code Ann. § 27-22-101 et seq. (Repl. 1994), renders the exclusionary clause in this case void as against public policy. The legislative intent of these provisions is expressed in § 27-22-101(a):

This chapter is not intended in any way to alter or affect the validity of any policy provisions, exclusions, exceptions, or limitations contained in a motor vehicle insurance policy required by this chapter.

In Cook v. Wausau Underwriters Ins. Co., 299 Ark. 520, 772 S.W.2d 614 (1989), we rejected Cook’s argument that our compulsory insurance law rendered a clause that excluded coverage to the spouse of a policyholder void as against public policy, reasoning as follows:

The General Assembly is presumed to be aware of our decisions. It is particularly significant that, in enacting the compulsory insurance law, the legislature specifically recognized that liability policy provisions included exclusions and limitations. Moreover, the legislature has specifically provided that the compulsory insurance law was not intended to affect the validity of any policy exclusions. Since the legislature has not indicated any intent to overrule our longstanding precedents, and we find no compelling public policy reason for doing so, we decline the invitation to overrule our prior decisions.

299 Ark. at 522, 772 S.W.2d at 616.

In her brief, Smith has cited cases from outside our jurisdiction purportedly advancing her position, and Shelter has attempted in its brief to distinguish these cases. Because our legislature has specifically provided that the compulsory insurance law was not intended to affect the validity of any policy exclusions, it is unnecessary for us to address cases from other jurisdictions that rely on their own states’ statutes. We feel certain that, if the legislature wishes to provide that the compulsory insurance law is to affect the validity of any policy exclusions, it will change or amend § 27-22-101(a).

Because we agree that no genuine issue of material fact remains to be resolved, we hold that the trial court did not err in entering summary judgment in the favor of Shelter.

Affirmed.


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

text:
    Houston WILLIAMS and Kathlene Williams v. STATE of Arkansas
    CR 96-834
    939 S.W.2d 264
    Supreme Court of Arkansas
    Opinion delivered February 10, 1997

      Robert E. Irwin, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   W.H.“Dub” Arnold, Chief Justice.

Houston and Kathlene Williams are husband and wife. Houston Williams was sentenced to a total of thirty years in prison for possession of marijuana with intent to deliver and possession of methamphetamine with intent to deliver. He also received a $25,000 fine. Kathlene Williams was convicted of the same two offenses, plus an additional count of possession of methamphetamine with intent to deliver. She received a total of fifteen years in prison and a $10,000 fine. The Arkansas Court of Appeals reversed and remanded the convictions on the basis that the search warrant used to gather evidence against Mr. and Mrs. Williams was illegally obtained. Williams v. State, 54 Ark. App. 352, 927 S.W.2d 801 (1996). We granted the State’s petition for review. Upon our review, we affirm the decision of the trial court.

The search warrant that is the subject of this case was executed at the Williams’s home on February 24, 1993. Pursuant to the warrant, officers seized, among other items, approximately eighty-three grams of methamphetamine, approximately twelve ounces of marijuana, several handguns, and a wall safe containing $8,200 in cash. The facts leading up to the procurement of the warrant are set out in detail in the court of appeals opinion, but we will set them out again here, for the sake of convenience. On November 12, 1992, the Fayetteville Police Department received information from a confidential informant that Houston Williams of a certain address in West Fork, Arkansas, was an extremely large trafficker of controlled substances. The informant stated that Williams would travel to California and Arizona, pick up large amounts of methamphetamine, then return to northwest Arkansas to distribute the drug. The informant further stated that he had seen Houston Williams with as much as $65,000 in cash at one time.

On December 31, 1992, the Fayetteville Drug Enforcement Administration office received word from a special agent in Alpine, Texas, that the agent had an informant in custody. The informant was from northwest Arkansas and stated that Houston and Kathlene Williams would travel to New Mexico every three weeks, pick up one to two pounds of methamphetamine and cocaine, then return to northwest Arkansas to distribute the drugs.

On February 22, 1993, at approximately 4:00 p.m., Detective Rogers of the 19th Judicial District Drug Task Force received a phone call from a confidential informant. The informant stated that Henry Glosemeyer and Houston Williams would be leaving the city of Rogers and driving to the Williams house in West Fork. The informant described in detail the two vehicles that would be driven, including the license-tag numbers. He said that Glosemeyer was to pick up a large amount of methamphetamine, then return to Rogers at 9:00 p.m. to deliver the drugs to his customers. Detective Rogers relayed this information to Detective McCarty of the Fayetteville Police Department. Upon receipt of the information, McCarty and four other officers drove to Williams’s West Fork address. While en route, two of the detectives saw one of the described vehicles, a gray Mercury Capri, arrive at the residence. Approximately three hours later, the other described vehicle, a red pickup, arrived. At 8:35 p.m., the pickup left the residence, driving toward Fayetteville. Fayetteville police were notified to be on the lookout for the vehicle. Shortly thereafter, officer Brian Waters saw the truck, fell in behind it, and clocked it at forty-eight miles per hour in a forty-five-miles-per-hour zone. When the truck moved into a forty-mile-per-hour zone, he pulled it over and issued a warning for speeding. The truck was being driven by Henry Glosemeyer. Upon being questioned by Officer Waters, Glosemeyer gave consent to search the vehicle. Nothing was found during the manual search, but the officer’s drug dog gave an active, aggressive alert. The vehicle was moved from the side of the road to a facility where a more thorough search could be conducted. As a result, two ounces of methamphetamine were found under the truck bed mat.

Glosemeyer was arrested and gave a statement. He said he had received an extremely large amount of methamphetamine from Houston Williams over the last year and that he had dealt at least one pound in the past month. The methamphetamine that was recovered from the search of his truck had been received from Houston Williams that night. Glosemeyer further stated that Williams had borrowed his truck, driven to California, and picked up four pounds of methamphetamine. Wilhams had returned that night.

The next morning, four officers went to the Wilhams residence. At that point, they had been told by the prosecutor’s office that they did not have enough probable cause to obtain a search warrant. Upon arriving at the residence, they identified themselves as narcotics officers. They asked Kathlene Wilhams if they might speak to her husband. Mrs. Wilhams allowed the officers to enter the house. She said her husband was sleeping. They asked her to wake him and she went to the bedroom to do so. As she left the hving-room area, Officer Norman observed an automatic pistol on a shelf. He took possession of it and unloaded it.

Houston Wilhams came into the living room within a few minutes. The officers questioned him and Mrs. Wilhams in separate rooms for well over an hour. They confronted Houston Wilhams with the information that indicated he was involved in drug trafficking. Williams denied any knowledge of such activity. Finally, the officers asked if Wilhams would consent to a search of the house. He said no.

At the end of the interrogation, and after consent to search had been denied, Williams said he had to go to the bathroom. Officer Norman, without invitation, followed Wilhams down the hah and watched him enter into a bathroom off the master bedroom. The officer made his way back up the hah, scanning the other rooms along the way. He pushed open a partially opened door to the den and noticed two weapons on a desk. When Williams came out of the bathroom, he told Officer Norman that the guns were unloaded and that he could check them if he liked. Norman entered the room and, in doing so, noticed a set of scales on a desk. He moved a bag of cookies which were obscuring the scales and saw a white rock sitting on the scales. He believed the rock to be a controhed substance. Looking further, Norman saw a part of a plastic bag protruding from a desk drawer. He opened the drawer and observed what he suspected to be a controlled substance, along with various items of drug paraphernalia. Houston Williams was placed under arrest. One of the officers present contacted an assistant U.S. attorney and advised him of what was in progress. The attorney told the officers to leave the premises and obtain a search warrant.

The search warrant was obtained later that day and executed on February 24, 1993. In the affidavit in support of probable cause, the officers included the information provided by the two confidential informants, the statement by Henry Glosemeyer, and the observation of what appeared to be drugs and drug paraphernalia in the Williams home. Also on February 24, Kathlene Williams was arrested when she appeared at the courthouse to post bail for her husband. Her purse was searched and .02 ounces of methamphetamine was found.

At trial, the appellants claimed that the officers’ initial, warrantless search of their home was illegal. They contended further that the evidence obtained in the initial search prompted the officers’ decision to obtain a search warrant, making the warrant illegal as well. The trial judge agreed that the initial search of the Williams’s home was unlawful. However, he did not agree that the illegality of that search affected the validity of the warrant. Therefore, the evidence obtained as a result of the execution of the search warrant was admitted at trial. The Williamses argue on appeal that the trial court should have suppressed that evidence.

Our analysis on appeal must be twofold. First, we must determine whether the evidence obtained by the officers on their first visit to the Williams home was the result of an illegal search. If the search was legal, there is nothing to taint the warrant. If the search was illegal, we must then determine the effect of that illegality on the procurement of the search warrant.

Legality of the Initial Search

The State urges us to hold the initial search constitutional based upon the plain-view doctrine. We have said in the past that this doctrine may be applied under the following circumstances: 1) the initial intrusion was lawful; 2) the incriminating nature of the items was immediately apparent; and 3) the discovery of the items was inadvertent. Johnson v. State, 291 Ark. 260, 724 S.W.2d 160, cert. denied, 484 U.S. 830 (1987). However, the State directs us to a different standard enunciated in the recent United States Supreme Court case of Horton v. California, 496 U.S. 128 (1990). In Horton, the Court held that the plain-view doctrine is applicable if the officer has a lawful right of access to the object and if the incriminating nature of the object is readily apparent. The State contends that Horton dispensed with the inadvertence requirement. We have not had occasion to discuss this aspect of the Horton case. We do not find it necessary to do so now. The incriminating items which were discovered by Officer Norman during the search simply were not in his plain view. The most elemental aspect of the plain-view doctrine has not been met. The rationale behind the plain-view doctrine is that the observation of items in plain view is not a search. Johnson v. State, supra. Once an officer’s activity crosses the fine from observation into a probing quest for evidence, a search has begun, and the realm of the plain-view doctrine is left behind. See generally State v. Risinger, 297 Ark. 405, 762 S.W.2d 787 (1989) (although a container on a table was in plain view, its contents were not; thus the plain-view doctrine did not apply to the contents). The incriminating items observed by Officer Norman in this case — the rock on the scale, along with the substance and explicit paraphernalia inside the drawer — were not discovered through mere observation. In moving the bag of cookies and opening the desk drawer, the officer crossed the line into a search. A similar situation arose in Arizona v. Hicks, 480 U.S. 321 (1987). An officer was rightfully inside a residence which he suspected contained stolen stereo equipment. When he observed a stereo turntable, he moved it to look for a serial number. The Court held that the officer’s movement of the equipment to view it further constituted a search. The officer was engaged in a quest for evidence, as opposed to mere observation of an object without disturbing it.

The facts show that a warrantless search of the appellants’ residence took place. Warrantless searches of a suspect’s home are presumptively unreasonable. Guzman v. State, 283 Ark. 112, 672 S.W.2d 656 (1984). The State has the burden of proving such a search is reasonable. Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989). That burden is particularly difficult in this case in light of the fact that, just before the search took place, consent to search was denied. As none of the exceptions to the warrant requirement can be shown by the State, we agree with the trial court that the initial search conducted in the appellants’ home was unlawful.

Legality of the Search Warrant

Having decided that the warrantless search was illegal, we move to the question of that illegality’s effect on the validity of the warrant. While the exclusionary rule prohibits the introduction of tangible and testimonial evidence derived from an unlawful search, such evidence may nonetheless be admissible if discovered through an independent source. See Murray v. United States, 487 U.S. 533 (1988). This tenet is referred to as the “independent-source doctrine.” Murray involved an illegal entry into a warehouse where all subsequent activity by the police officers was suspect. While unlawfully in the warehouse, the police officers observed bales of marijuana. They then sought a search warrant. The Court stated:

The ultimate question, therefore, is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents’ decision to seek the warrant was prompted by what they had seen during the illegal entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.

Murray, 487 U.S. at 542. The first prong of Murray is usually approached by excising the offending information from the probable-cause affidavit and then determining whether the affidavit nevertheless supports the issuance of a search warrant. See United States v. Restrepo, 966 F.2d 964 (5th Cir. 1992), cert. denied, 506 U.S. 1049, 113 S.Ct. 968 (1993); United States v. Herrold, 962 F.2d 1131 (3rd Cir.), cert. denied 506 U.S. 958, 113 S.Ct. 421 (1992). The affidavit in this case contained a wealth of information about the Williams’s possible drug-trafficking activities. Even in the absence of the information obtained in the prior search, officers had detailed information from three confidential informants, plus the statement of Henry Glosemeyer, who had just come from the Williams’s residence. Thus, the first prong of the Murray test weighs in favor of the validity of the warrant.

The second prong of Murray focuses on the motivation of the officers in obtaining the warrant. A key consideration in determining this issue is the “relative probative import” of the information secured during the illegal search “compared to all other information known to the officers.” United States v. Restrepo, supra, at 972. While the police should not profit from illegal activity, neither should they be placed in a worse position than they would otherwise have occupied. Murray, 587 U.S. at 542.

In the instant case, unlike the facts in Murray, there was no illegal entry. Kathlene Williams allowed the officers to enter the residence, and, while the officers testified that they informed Houston Williams that he could ask them to leave the residence at any time, he never requested that they do so. Furthermore, we think it significant that, when Officer Norman contacted the prosecutor’s office about obtaining a warrant prior to entering the residence, he was advised that he lacked probable cause. Thus, we cannot agree that there was a complete absence of motivation on the part of the officers to seek a warrant prior to the lawful entry and subsequent illegal search.

Immediately upon lawfully entering the house, Officer Norman observed a Smith & Wesson .9 millimeter automatic pistol on top of a dresser. While the officers were present, Ronald Fox, whom they had documented as dealing in methamphetamine, arrived at the home but would not enter the residence. This evidence, obtained prior to the illegal search, could be properly considered by the issuing magistrate.

When asked at the suppression hearing to explain the basis for his request for a search warrant of the Williams residence, Officer Norman reviewed not the items seized from the illegal search, but the information received from the confidential informants, the statement acquired from Glosemeyer, and the surveillance conducted by officers. In light of this testimony, we cannot conclude that the officers were prompted to obtain the search warrant after obtaining the tainted information. In any event, as the officers collected ample information to support a search warrant, independent of and prior to the items found in the illegal search, we hold that the independent-source doctrine permitted the introduction of evidence seized after the search warrant. To hold otherwise, we would be placing the officers in a worse position than they would otherwise have occupied. Under these circumstances, we affirm the trial court’s order upholding the validity of the warrant.

Affirmed.

Newbern and Glaze, JJ., dissent.

David Newbern, Justice,

dissenting. The majority opinion bases the affirmance in this case upon Murray v. United States, 487 U.S. 533 (1988), and its exposition of the independent-source doctrine. In the Murray case, the Supreme Court’s opinion states that the United States District Court found that agents who conducted an illegal search prior to obtaining a search warrant “did not reveal their warrantless entry to the Magistrate” who subsequendy issued a search warrant. 487 U.S. at 543. In discussing the independent-source doctrine, Mr. Justice Scalia, on behalf of the Supreme Court majority, wrote:

The ultimate question, therefore, is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.

487 U.S. at 542 (emphasis added, footnote omitted).

It is no wonder the State does not cite the Murray case in this appeal; rather, it cites Segura v. United States, 468 U.S. 796 (1984), with a “Cf.” signal in support its independent-source doctrine argument. The Segura case, as described in the Murray case opinion, “held that police officers’ illegal entry upon private premises did not require suppression of evidence subsequently discovered at those premises when executing a search warrant obtained on the basis of information wholly unconnected with the initial entry.” 487 U.S. at 535, emphasis added.

The State’s petition for review and the majority opinion acknowledge that the affidavit presented to the judge who issued the search warrant contained information about the previous illegal search and evidence found in that search. It is apparent that, in the circumstances presented here, the Murray case and the independent-source rule do not apply.

In its supplemental brief to this Court on review of the Court of Appeals decision, the State asks that we evaluate the search warrant affidavit by excising the “improper” portion, citing by analogy Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), which involved a search warrant affidavit that contained false and misleading statements. There we noted that, to disqualify the affidavit, the statements of the officers must have been “knowingly” false or made “recklessly” without knowledge of their truth or falsity. We held that the evidence did not support any such conclusion. We also said, however, that even if such a conclusion were supported by the evidence, statements in the affidavit other than those alleged to have been false would have been sufficient to support the issuance of the search warrant. Inconsistent with the language in the Murray opinion, the majority opinion takes that approach, citing United States Court of Appeals cases.

For any court to say the decision of the judge issuing a search warrant was not “affected by” the presence of information such as that presented as the result of an acknowledged illegal search in this case is to wink at a serious violation of the Fourth Amendment.

Some may applaud the majority opinion as overcoming form in favor of substance or as not letting the guilty get away due to “technicalities.” Although not a very handsome one, “technicalities” is another name for the Bill of Rights. Our duty is to do what we can to prevent the home of any citizen from being subjected to unlawful intrusion or search by the government. The only way to accomplish it is to hold that evidence obtained as the direct or indirect result of a constitutional violation is inadmissible. The result reached by the Arkansas Court of Appeals reversing the convictions in this case was correct.

I respectfully dissent.

Glaze, J., joins.


author: David Newbern, Justice.

text:
    Ruth Jayne Albey DUQUE, Administratrix of the Estate of Day Michele Albey, Deceased v. OSHMAN’S SPORTING GOODS—SERVICES, INC., et al.
    96-204
    937 S.W.2d 179
    Supreme Court of Arkansas
    Opinion delivered February 10, 1997
    [Petition for rehearing denied March 10, 1997.]

      The McMath Law Firm, P.A., by: Sandy S. McMath, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: William H. Edwards, Jr. and Derek J. Edwards, for appellee.
   David Newbern, Justice.

Ruth Jayne Albey Duque, administratrix of the estate of her daughter, Day Michele Albey, sued Oshman’s Sporting Goods — Services, Inc., Oshman’s Sporting Goods- — -Arkansas, Inc., and others who are not parties to this appeal. We will refer to the two defendants named above collectively as “Oshman’s.” The claim was that Oshman’s negligendy sold a pistol to a man who used it to kill Ms. Albey. The judgment, based on a jury verdict, favored Oshman’s. Ms. Duque’s points of appeal concern evidentiary rulings by the Trial Court. We are unable to reach the merits of the rulings, and we affirm the judgment in favor of Oshman’s, because we find in neither party’s abstract of the record the necessary proffers of the evidence alleged to have been erroneously excluded.

Jimmy L. Sweeney purchased a pistol and ammunition from an Oshman’s Sporting Goods store. A few minutes later he loaded the pistol and walked into a store where Ms. Albey, his former girlfriend, was working. He killed Ms. Albey, and then himself, using the pistol purchased from Oshman’s.

Ms. Duque alleged two counts of negligence against Oshman’s. She first claimed that Oshman’s was negligent for selling the pistol to Mr. Sweeney when it knew or should have known, in fight of Mr. Sweeney’s appearance or behavior at the time of sale, that he was likely to misuse the pistol. Ms. Duque also claimed that Oshman’s was negligent for faffing to implement a written “safe-sales policy” that would have warned its personnel of the “profile” of a consumer who was likely to misuse a firearm. Had such a policy been in place at Oshman’s, asserted Ms. Duque, the store personnel would not have sold the pistol to Mr. Sweeney.

In response to a series of special interrogatories, the jury found that Oshman’s had not committed negligence that was a proximate cause of Ms. Albey’s death. The jury found that Mr. Sweeney had engaged in intentional conduct that was the proximate cause of Ms. Albey’s death and that Mr. Sweeney’s acts were an intervening proximate cause of Ms. Albey’s death.

Ms. Duque asserts that the Trial Court erred by (1) granting Oshman’s motion in limine to exclude evidence of previous instances in which other consumers misused the firearms they purchased from Oshman’s; (2) denying Ms. Duque the opportunity to cross-examine an Oshman’s representative about such prior occurrences; and (3) granting Oshman’s motion in limine to prohibit one of Ms. Duque’s witnesses from giving an expert opinion describing the aspects of a consumer’s appearance or behavior that should have alerted Oshman’s personnel of the likelihood of the consumer’s misusing the weapon.

Neither Ms. Duque’s abstract nor the supplemental abstract provided by Oshman’s demonstrates that Ms. Duque proffered the evidence that she asserts was erroneously excluded. According to Arkansas Rule of Evidence 103,

[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . .
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Ark. R. Evid. 103(a)(2).

To challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so as to permit review of a trial court’s decision, unless the substance of the evidence is apparent. Wade v. Grace, 321 Ark. 482, 902 S.W.2d 785 (1995). Failure to proffer evidence so that we can see if prejudice results from its exclusion precludes review of the evidence on appeal. Carr v. General Motors Corp., 322 Ark. 664, 667, 911 S.W.2d 575, 577 (1995).

It appears from the abstracts before us that Ms. Duque did not proffer the substance of the evidence that was excluded. During oral argument of this case, counsel for Ms. Duque explained that some of the evidence he was not permitted to present to the jury was before the Trial Court. We cannot, however, find it in the abstracts. “We have often written that our review on appeal is limited to the record as abstracted and that we will not reach the merits of a case when the documents in the transcript that are necessary for an understanding of the case are not abstracted.” Burns v. Carroll, 318 Ark. 302, 302, 885 S.W.2d 16, 17 (1994). “[W]e have said many times that there is only one record and seven justices. We will not require seven justices to scour one record for material that should have been abstracted.” Boren v. Worthen Nat’l Bank, 324 Ark. 416, 420, 921 S.W.2d 934, 937 (1996). Because the abstracts do not contain the materials necessary for a review of the Trial Court’s evidentiary rulings, we must affirm the judgment.

Affirmed.


author: Donald L. Corbin, Justice.

text:
    OZARK AUTO TRANSPORTATION, INC., an Arkansas Corporation v. Vernie D. STARKEY
    96-873
    937 S.W.2d 175
    Supreme Court of Arkansas
    Opinion delivered February 10, 1997

      Scott E. Smith, for appellant.

      Godo, Dossey & Reeves, by: Samuel M. Reeves, for appellee.
   Donald L. Corbin, Justice.

Appellant Ozark Auto Transportation, Inc., appeals the judgment of the Washington County Circuit Court holding that Appellant breached its duty of ordinary care to Appellee and awarding Appellee damages in the amount of $3,858.43. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(15) (as amended per curiam July 15, 1996), as this case presents questions about the law of torts. In support of its appeal, Appellant argues that there was insufficient evidence presented below to support the verdict against Appellant and the amount of damages awarded to Appellee, and that the trial court erred in allowing Appellee to impeach the testimony of one of Appellant’s agents with portions of an alleged letter of setdement. We find no error and affirm the judgment.

The testimony presented at the nonjury trial revealed the followings facts. Appellee had employed the services of Appellant to transport a car from Mountain Home, Arkansas, to the Port of Baltimore, Maryland, so that the car could be shipped to Appellee in Germany. Appellee made the transportation arrangements with Marvin Creamer, a salesman for Appellant. The agreement was that Appellant was to deliver the car to E.H. Harms at the marine terminal in Baltimore, where it would be shipped by another company to Germany. When the car did not arrive in Germany on time, Appellee talked to Marvin, who stated that a radiator and a gas tank that were stored in the trunk of a 1940 Mercury belonging to a Mr. Taylor, which was also being transported by Appellant and was located in the upper deck of the transport truck, had fallen onto Appellee’s car, damaging the hood and breaking the windshield. When the car finally arrived in Germany, Appellee reported that the hood was badly dented and that the car’s climate-control system was full of glass splinters, apparently from the broken windshield. The windshield had already been replaced, upon Appellant’s request, before shipment overseas. Appellee took photographs of the damage and had the car repaired in Germany. Appellee presented the photographs and documents to the trial court including a copy of a check in the amount of $3,858.43 that Appellee stated was written for the repairs to the car.

Appellant’s vice-president, Lance Creamer, told the trial court that he had been contacted by an assistant concerning the damage to Appellee’s car, and that he had, in turn, instructed the assistant to get an estimate on the damage and to have the windshield replaced, as he knew that the car could not be shipped overseas without a windshield. Lance Creamer denied knowledge concerning the cause of the damage to Appellee’s car, but conceded that if the hood had been dented and the windshield had been broken when the car was picked up by his driver, such damage would have been noted on the pre-transport inspection conducted by his driver. Lance Creamer also stated that Appellee actually talked to him, rather than Marvin Creamer, concerning the damage to his car and that he never told Appellee anything about parts falling out of the trunk of a 1940 Mercury and onto Appellee’s car. Marvin Creamer likewise denied ever speaking to Appellee about the damage to the car.

Lance Creamer initially denied knowledge as to whether Appellee’s car was damaged during transport. Appellee’s counsel then confronted Lance Creamer with a letter written by him to Appellee, which referred to “damages caused during transport while the car was in our care.” Lance Creamer admitted that he had written the letter to Appellee and that it was safe to assume that the car had been damaged when it had been dropped off at the port in Baltimore, due to the fact that he had obtained an estimate of the damages at that time.

Appellant’s transport driver, Mark Smith, informed the trial court that he had performed an inspection on Appellee’s car prior to transporting the car to Baltimore. Smith indicated that the only damage noted on his inspection was a “touch-up” ding below the left door handle and jack indentations on the bottom of the car’s frame. Smith stated that no damage had been done to the car while it was in his care prior to being delivered to the port in Baltimore. Smith conceded that when he arrived at the port, he did not deliver the car to E.H. Harms as instructed; instead, he left the car, unlocked and with the keys in it, just inside the main gate of the port without having anyone sign for receipt of the vehicle.

The trial court ruled that Appellee had met his burden of proof by a preponderance of the evidence that the damage to his car occurred while it was in Appellant’s care and possession. The trial court found further that the facts presented created a bailment situation, and that in such a situation where the bailee returns damaged goods that were not damaged when received, an inference of negligence arises and the bailee must then go forward with evidence that he exercised ordinary care in handling the goods. In applying the law to the facts, the trial court determined that Appellant had not overcome the inference of negligence arising against it and that Appellee was entitled to damages in the amount of $3,858.43, the actual costs of the repairs. The trial court found it significant that Lance Creamer had instructed his assistant to have an estimate done for the repairs and to have a windshield installed, all the while Appellant’s agents maintained that the car was not damaged -when it was delivered to Baltimore. Appellant filed a posttrial motion and brief asking the court to reconsider its judgment, but the motion was denied. This appeal foEowed.

Sufficiency of the Evidence

For its first point for reversal, AppeEant argues that the trial court’s verdict against it as weE as the amount of the damages awarded to AppeEee were clearly against the preponderance of the evidence presented at trial. We do not agree.

We have long held that we will not reverse the trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. ARCP Rule 52(a); Farm Bureau Mut. Ins. Co. v. David, 324 Ark. 387, 921 S.W.2d 930 (1996). Due regard shall be given to the superior position and opportunity of the trial court to judge the credibility of the witnesses, ARCP Rule 52(a), and where there are disputed matters of fact, such as in the case at bar, “[i]t is axiomatic that decisions as to the credibility of the witnesses are to be made by the trier of fact,” in this case the court sitting without a jury. Silvey Cos. v. Riley, 318 Ark. 788, 791, 888 S.W.2d 636, 638 (1994).

We note at the outset that the trial court correctly applied the principles of law as to bailments, and that Appellant does not contest the trial court’s characterization of the relationship as one of bailment. Generally, where a bailee returns goods in a damaged condition which were not so damaged when received, an inference of negligence applies. Howard’s Cleaners v. Munsey, 289 Ark. 22, 708 S.W.2d 628 (1986). The bailee may then go forward with proof that he exercised ordinary care in handling the bailed goods. Id. In Smith v. Thornburg, 311 Ark. 49, 841 S.W.2d 616 (1992), this court cited its prior holding in Howard’s Laundry & Cleaners v. Brown, 266 Ark. 460, 463, 585 S.W.2d 944, 945-46 (1979):

The rule in bailment cases is that the bailee may overcome the inference of negligence arising against it because of delivery in good condition and return in damaged condition by telling all that it knows of the casualty, and that it exercised ordinary care in all that it did with respect to the vessel. This burden, unlike that of persuasion which rested at all times on [the bailor], simply required [the bailee] to go forward with evidence sufficient to show that it had no more knowledge of the cause of the casualty than was available to the [bailor] and that it exercised ordinary care. At this juncture the burden of going forward would shift back to [the bailor] to ultimately persuade the trier of facts of negligence on the part of [bailee] proximately causing the casualty.

Smith, 311 Ark. at 51, 841 S.W.2d at 616-17.

Here, the trial judge specifically stated that he could see no reason for Appellee to he concerning the damage to the car or the conversation with Marvin Creamer indicating that some parts had fallen out of the trunk of another car being transported above Appellee’s car. The trial judge also found it significant that Appellant’s driver would take such care in inspecting the car for damage before transporting it to Baltimore and then turn around and leave the car unattended inside the port’s gate without ever having had anyone at the port sign for receipt of the car or verify that the car had not been damaged during transport. Additionally, the trial judge rejected Appellant’s theory that the car may have been damaged during the overseas shipment, reasoning that if that had been the case, it would not have been necessary for Appellant’s agents to have arranged to have the windshield replaced before overseas shipment. Moreover, the trial court reasoned that it was not believable that Appellant’s agents would spend almost $700.00 to have the car’s windshield replaced out of the kindness of their hearts, when they were only going to make $500.00 for transporting the car.

Based upon the foregoing, as well as the previously recited trial testimony, we conclude that the trial court’s decision was not clearly erroneous or clearly against the preponderance of the evidence. Furthermore, as the trial judge was presented with documentary evidence by Appellee concerning the cost of the repairs to the car, we cannot conclude that the award of $3,858.43 damages, the exact amount reflected on the check written by Appellee, was not supported by the evidence. The fact that Appellant claims the repairs could have been done less expensively is of little consequence for purposes of our review, as the trial court’s award of damages was not clearly against the preponderance of the evidence.

A.R.E. Rule 408

For his remaining point for reversal, Appellant contends that it was error for the trial court to permit Appellee’s counsel to impeach Lance Creamer’s testimony with a letter written by Creamer to Appellee in an attempt to settle Appellee’s lawsuit. In support of this contention, Appellant asserts that A.R.E. Rule 408 prohibits the use of letters containing offers of settlement or compromise between litigants for the purpose of establishing liability. Appellee responds that under Rule 408 such letters may be used to impeach the credibility of a witness who testifies inconsistently with what he wrote in the letter.

Initially, we note our agreement with the trial court’s interpretation of the rule, as Rule 408 is not a blanket prohibition against the admission of all evidence concerning offers to compromise. McKenzie v. Tom Gibson Ford, Inc., 295 Ark. 326, 749 S.W.2d 653 (1988). Instead, the rule only prohibits the introduction of such evidence when the evidence is offered to prove “liability for, invalidity of, or amount of the claim or any other claim.” Id. at 332-33, 749 S.W.2d at 657 (quoting A.R.E. Rule 408). Rule 408 does not prohibit such evidence when introduced for any other reason. Id. Such evidentiary rulings are within the sound discretion of the trial court and will not be set aside by this court absent a manifest abuse of that discretion. Id.

Based upon the abstract of the record, we are not convinced that the trial court abused its discretion in allowing Appellee’s counsel to impeach the testimony of Lance Creamer with the statements he made in the letter written to Appellee, even if the letter was one in which a setdement or compromise was offered by Appellant. We are precluded, however, from conducting a meaningful review of the merits of this issue without having the benefit of knowing the actual contents of the letter, which Appellant has failed to abstract. There is no indication from the abstracted portion of Lance Creamer’s testimony, other than the argument of Appellant’s counsel, that such letter actually contained any discussion of settlement or compromise.

Because Appellant has failed to abstract this crucial document, we cannot conclude that the trial court erred in allowing its use in the impeachment of Lance Creamer. It is well settled that it is the appellant’s burden to produce a record demonstrating error on appeal. Winters v. Elders, 324 Ark. 246, 920 S.W.2d 833 (1996). Appellant has failed to meet this burden and, thus, we affirm.