text:
    Pamela Sue KINDIGER v. Donald R. HUFFMAN, Trustee of the Ernest L. Huffman Revocable Trust
    91-218
    821 S.W.2d 33
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991

      George, Morris & Spivey, by: David C. George, for appellant.

      C.J. Hardcastle, for appellee.
   Steele Hays, Justice.

Ernest L. Huffman died testate on November 6,1987, survived by five children. His spouse and one child predeceased him. Another child, Betty Jane Mantooth, survived but died on June 20, 1988. The bulk of Ernest L. Huffman’s estate was disposed of pursuant to a revocable trust to be distributed by the trustee upon the settlor’s death, in equal shares to the settlor’s children “or the lawful descendents of one who may be then deceased.”

A controversy developed between the children of Betty Jane Mantooth and her surviving spouse, Cledith Mantooth and in October 1988, the trustee petitioned the Chancery Court of Benton County for a declaratory judgment to construe the trust provision and determine whether the distributive share of Betty Jane Mantooth should be paid to Cledith Mantooth, the executor of her estate and only beneficiary under her will, or to her lawful descendants: Deborah Warren, David Mantooth, Pamela Sue Kindiger and Ernest Mantooth, all of whom were named as respondents in the suit for declaratory judgment.

On November 7, 1989, an Order of Declaratory Judgment was signed by the chancellor authorizing the distribution of the share of Betty Jane Mantooth to Cledith Mantooth “of the total assets of the trust from funds received from the estate of Ernest L. Huffman,' deceased, whether or not actually delivered to the trustee from the said estate prior to the death of Betty Jane Mantooth.” The order further ordered the distribution “of all income prior or earned subsequent to the death of Betty Jane Mantooth not previously distributed” to Deborah Warren, David Mantooth, Pamela Sue Kindiger and Ernest Mantooth.

No appeal was taken from the order of declaratory judgment. On January 21,1991, Pamela Sue Kindiger filed a Motion For Correction of Order alleging that due to “errors in said Order For Declaratory Judgment arising from oversight or omission” the trustee is unable to make a determination as to the correct distribution.

No testimony was taken on the motion and on April 16, 1991, the chancellor, citing Ark. R. Civ. P. 60(a), entered an amended order altering the provision for distribution of “all income prior or earned subsequent to the death of Betty Jane Mantooth not previously distributed” to read, “all income earned subsequent to the death of Betty Jane Mantooth “as earned on trust corpus not previously distributed after June 20,1988.” Thus under the order the remaining funds identified as income accruing after June 20, 1988, were distributed in equal shares to the four children of Betty Jane Mantooth. Pamela Sue Kindiger filed a timely Notice of Appeal from the amended order.

Rule 60(a) deals with clerical mistakes arising from oversight or omission and provides that such mistakes may be corrected by the court at any time. Unquestionably, either party aggrieved by such correction may bring a timely appeal, but the appeal is not from the original order, or judgment, but from the order purporting to correct it. 9 J. Moore, Moore’s Federal Practice § 110.14 [2].

In this case, none of appellant’s arguments concern the distribution of income accruing either before or after the death of Betty Jane Mantooth. Appellant’s three points of error are directed toward the Order of Declaratory Judgment entered some eighteen months earlier: One, the court erred in finding that Betty Jane Mantooth had a vested or assignable interest in an undivided share of the trust assets; two, the court erred in finding that Betty Jane Mantooth had a power of appointment over an undivided share of the trust property; three, the court erred in failing to find that the spendthrift clause of the trust precluded the transfer of Betty Jane Mantooth’s interest in the trust by will or otherwise. Each of these points of error involves the order of November 8, 1989, and has no validity after the time for appeal has expired.

Since no brief has been filed by appellees there is no challenge to the timeliness of this appeal. Even so, we have held many times that the jurisdiction of this Court to consider an appeal is a matter we will address on our own. Arkansas Savings and Loan Association v. Corning Savings and Loan Association, 252 Ark. 264, 478 S.W.2d 431 (1972).

Appeal dismissed.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    GALATIA COMMUNITY STATE BANK v. Eugene KINDY, Individually and Eugene Kindy, d/b/a Gene’s Truck Service
    91-234
    821 S.W.2d 765
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991

      Cypert, Crouch, Clark & Harwell, by: Brian L. Spaulding, for appellant.

      Howard L. Slinkard, P.A., by: Mary M. Schneider, for appellee.
   David Newbern, Justice.

The appellant, Galatia [Illinois] Community State Bank, honored a check for $5,550.00 which was the amount imprinted by a check writing machine in the center, underline section of the check commonly used for stating the amount in words. The imprint looks like this:

RegistereD
No. 497345 **5550 DOL’S 00 CTS

The impression made by the checkwriting machine can be felt on the front and the back of the check, and “**5550 DOL’S 00 CTS” is imprinted in red ink. In the box on the right hand side of the check commonly used for numbers “6,550.00” appears in handwriting, but the 6 has been altered by hand so the amount reads “5550.00.” Galatia Bank sued the appellee, Eugene Kindy, who was the drawer of the check after it had been dishonored. We must decide whether Galatia Bank was a holder in due course and thus entitled to recover despite the failure of consideration defense Kindy has against the payee.

The Trial Court held that, because a Galatia Bank employee changed the “6” in the handwritten portion to a “5,” the Bank did not take the check in “good faith” and thus was not a holder in due course. We hold Galatia Bank was a holder in due course because it was entitled to rely on the imprinted center underline section of the check, and the “alteration” which reconciled the terms was not a sufficient basis to hold that Galatia Bank acted in other than good faith.

Kindy buys and sells diesel engine parts. He agreed to buy four diesel engines from Tony Hicks who was to deliver them. The purchase price was $ 13,000. Kindy agreed to wire transfer $6500 and pay the remainder by check. Kindy testified he and Hicks agreed the check would not be cashed until the motors were delivered to an address in Canada.

Kindy wired the $6500 in late June of 1989, and concurrently wrote and mailed the check which was postdated July 6, 1989. Kindy placed two different amounts on the check because he did not want the check to be honored until Hicks delivered the engines. Kindy testified he thought if he made the check out with the two different amounts a bank would either call him to find out if it was good, or at least notify him before honoring it. He felt he could protect himself in that manner.

Hicks presented the check to the Galatia Bank on July 10, 1989. He received $800 in cash and credit to his account for $4,750. To reach the factual conclusion that a Galatia Bank employee had altered the check, the Court first determined that the party filling out the accompanying deposit slip originally wrote 6550.00, crossed out that amount, changed it to 5550.00, and initialed the change. Those initials on the deposit slip were not the initials of Tony Hicks. The change was presumed to be the work of a Galatia Bank employee based on the particular steps taken in changing the slip. The Court found a difference between the handwriting on the deposit slip and Hicks’ endorsement on the back of the check. From this evidence, the Court inferred a Galatia Bank employee filled out the deposit slip. The Court then found the handwriting on the deposit slip similar to the “5” which had been written over the “6.” It was thus concluded that a Bank employee had made the alteration.

Galatia Bank sent the check through the Federal Reserve System for collection, and it was presented to First National Bank of Siloam Springs/Gentry for final payment. Kindy had previously told First National Bank to call him when the check was presented so he could determine whether Hicks had delivered the engines. First National Bank called Kindy when the check was presented, and Kindy said not to pay the check because the engines had not been delivered.

The check was returned to Galatia Bank on July 18th. Galatia Bank again presented the check to First National Bank, but the check was again returned as Kindy had placed a stop payment order. Galatia Bank sued for $4753.64, the amount it lost as the result of Hicks drawing down the account in which the check had been deposited.

The Trial Court reviewed Ark. Code Ann. § 4-3-118(b) and (c) (1987) which has since been superseded by Ark. Code Ann. § 4-3-114 (Supp. 1991) but which was in effect at the time in question in this case. The statute provided in relevant part:

4-3-118. Ambiguous terms and rules of construction.
The following rules apply to every instrument:
(b) Handwritten terms control typewritten and printed terms, and typewritten control printed.
(c) Words control figures except that if the words are ambiguous figures control.

In its opinion the Trial Court found the statute not to be helpful as the two subsections as applied in this case were contradictory. That conclusion was not crucial, however, to the Court’s ultimate holding that the Galatia Bank acted other than in good faith and thus did not meet the requirement of Ark. Code Ann. § 4-3-302(b) (1987), now found at Ark. Code Ann. § 4-3-302(a)(2)(ii) (Supp. 1991).

Holder in due course

1. Good faith

If Galatia Bank had made a “fraudulent and material” alteration of the check without Kindy’s assent, no doubt Kindy’s liability on the instrument would have been discharged. Ark. Code Ann. § 4-3-407(2)(a) (1987). The new Code provision is slightly different. See Ark. Code Ann. § 4-3-407 (Supp. 1991). The Trial Court found specifically that the alteration was not done “fraudulently,” and refused to hold Kindy was discharged .That finding was correct. See Winkle v. Grand National Bank, 267 Ark. 123, 601 S.W.2d 559 (1980); Shinn v. First Nat’l Bank of Hope, 270 Ark. 774, 606 S.W.2d 154 (Ark. App. 1980). The Court held, rather, that Galatia Bank was not a holder in due course because it did not take the check in “good faith.”

“Good faith” is defined at Ark. Code Ann. § 4-1-201(19) (1987 and Supp. 1991) as “honesty in fact in the conduct or transaction concerned.” While we have referred to the “good faith” requirement found in § 4-3-402(l)(a) (1987), Richardson v. Girner, 282 Ark. 302, 668 S.W.2d 523 (1984), it has not, so far as we know, been the basis of a holding by this Court. Professors White and Summers write that the good faith requirement is closely related to the requirement of Ark. Code Ann. § 4-3-302(c) (1987) that the holder not have “notice that it [the instrument] is overdue or has been dishonored or of any defense against or claim to it on the part of any person.” 1 J. White and R. Summers, Uniform Commercial Code (3rd ed. 1988). The authors point out that there is a difference between the two requirements, and suggest that the good faith should be a subjective one as was intended by the drafters of the Code.

We cannot agree with the Trial Court’s conclusion that Galatia Bank was not acting in good faith. There is neither evidence nor legitimate speculation that Galatia Bank or the employee was found to have performed the alternation intended harm to any party. As will be discussed below, it was proper for Galatia Bank to accept the check as being in the amount of $5,550, and the alternation did no more than cause the instrument to recite that amount uniformly. There was no evidence before the Court to suggest that the change was done other than with “honesty in fact in the . . . transaction concerned.”

2. Notice

The frustration expressed by the Trial Court with respect to § 4-3-118 (1987) which stated the applicable rules of construction for negotiable instruments is understandable. The statute says words control figures unless the words are ambiguous, and handwritten terms control typewritten and printed terms, and typewritten control printed. The question here is not so much whether the check should have been honored for the amount expressed by the checkwriting machine or in the handwritten numerals. Rather, having decided the alteration of the check did not cause Galatia Bank to take the check in other than good faith, the remaining question is whether notice of the inconsistency destroyed Galatia Bank’s standing as a holder in due course.

The 5550.00 amount imprinted by the checkwriting machine upon the line customarily used for words is expressed in figures and not in words. One question is whether imprinted numbers located where words are customarily placed on a check control figures placed where figures are customarily placed. Another question is whether handwritten figures control printing.

We find both question satisfactorily answered in St. Paul Fire & Marine Ins. Co. v. State Bank of Salem, 412 N.E2d 103 (Ind. App. 1980). In that case, there was a conflict between an amount imprinted by a check imprinting machine and numbers expressed in typewritten figures. The Court recognized the imprinted amount was not expressed in words, but held “the purposes of the U.C.C. are best served by considering an amount imprinted by a checkwriting machine as ‘words’ for the purpose of resolving an ambiguity between that amount and an amount entered upon the line usually used to express the amount in figures.” The Court quoted from a pre-U.C.C. case, United States Fidelity and Guaranty Company v. First National Bank of South Carolina of Columbia, 244 S.C. 436, 137 S.E.2d 582 (1964), as follows:

A prime purpose, as we see it, of making a sum payable when expressed in words controlling over the sum payable expressed in figures is the very fact that words are much more difficult to alter. The perforated imprinting by a check-writing machine, while expressing the sum payable in figures, is even more difficult to successfully alter than a sum payable in written words.

Because a check imprinting machine’s purpose is to protect against alterations, the amount shown on the imprint should control whether the number is in words or figures. Hawkland & Lawrence U.C.C. Series § 3-118:06 (Art. 3) (1984).

Turning to the question whether typewriting controls printing, the Indiana Court stated:

As the section makes clear, in the event of an ambiguity between printed terms and typewritten terms, the latter would control. We do not consider the impression made by the check imprinter to be “printed” terms under this section. Accord, United States Fidelity and Guaranty Company v. First National Bank of South Carolina of Columbia, (1964) 244 S.C. 436, 137 S.E.2d 582, 589 (1964).
A conflict between the two amounts on a check would be resolved by § 3-118(c) which states that words control figures. Arguably, the amount imprinted by the checkwriting machine upon the line customarily expressing the amount in words, is expressed in figures. . . . We think, however, that the purposes of the U.C.C. are best served by considering an amount imprinted by a checkwriting machine as “words” for the purpose of resolving an ambiguity between that amount and an amount entered upon the line usually sued to express the amount in figures.

Although the Court did not say specifically that it regarded the portion written by the checkwriting machine as the equivalent of handwriting, that is the clear effect of the decision.

In U.S. v. Hibernia Nat. Bank, 841 F.2d 592 (5th Cir. 1988), a typed numerical amount was located in the place customarily used for words. This amount conflicted with the amount located in the place customarily used for figures. The Court found the typed amount controlling despite the fact it was not expressed in words.

As Professor Hawkland has written:

A purchaser does not obtain notice of a claim or defense solely because there is a conflict among handwritten, printed and typewritten terms. Although a purchaser might question whether some irregularity has occurred, the premise of section 3-118 seems to be that any conflict is a mere mistake and therefore should be ignored. [W. Hawkland & L. Lawrence, U.C.C. Series § 3-118:05 (Art. 3) (1984).]

Given these authorities, we conclude Galatia Bank was a holder in due course with respect to the check and should be allowed to recover against Kindy. Therefore, we reverse and remand for entry of a judgment consistent with this opinion.

Reversed and remanded.


author: Tom Glaze, Justice.

text:
    ARKANSAS STATE BANKING DEPARTMENT; Bob Willett; Robert Hill; Gary D. Reinboth; Douglas Simmons; Larry G. Nelson and T. E. Patterson, as Members of the Arkansas State Banking Board; and Bill J. Ford as Commissioner of the Arkansas State Bank Department v. ARKANSAS LEAGUE OF SAVINGS INSTITUTIONS, INC; Paul Johnson, Individually as an Arkansas Taxpayer; and Pocohontas Federal Savings & Loan Association
    91-227
    821 S.W.2d 472
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991

      Winston Bryant, Att’y Gen., Thomas S. Gay, Senior, Asst. Att’y Gen., for appellants.

      McHenry, Choate & Mitchell, by: David S. Mitchell, for appellees.
   Tom Glaze, Justice.

This appeal involves the question of whether Arkansas savings and loans should not be eligible as depositories for public funds under Act 21 of 1935. Act 21 requires the State Bank Commissioner to furnish a list of “banks or banking institutions” insured by the Federal Deposit Insurance Corporation (FDIC). The Act further provided that public funds can only be deposited in the banks appearing on this list. The Bank Department promulgated Regulation XI, paragraph twenty-four, that provides only FDIC banks are eligible to receive public funds.

In the 1980’s, amendments to federal banking laws empowered the savings and loans to perform most, if not all, of the traditional banking services. As a part of these changes, the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) was enacted. FIRREA removed the savings and loans’ insurance from the Federal Savings and Loan Insurance Corporation (FSLIC) and placed the savings and loans under FDIC. The FDIC is composed of two separately administered funds, the Savings Association Insurance Fund (SAIF) and the Banking Insurance Fund (BIF).

Based on these federal law changes, the Arkansas League of Savings Institutions and other interested parties, appellees, filed an action seeking a declaratory judgment that savings and loans are “banking institutions” and FDIC insured under Act 21 and thus eligible to receive public funds deposits. The trial court held for the appellees, and the appellants, Arkansas State Banking Board and other interested parties, appeal.

The provision in question in this appeal provides in pertinent ■ part as follows:

Annually on December 1 the Bank Commissioner shall furnish to the governing board of each city... a list of all the banks or banking institutions doing business in this state which are members of the Federal Deposit Insurance Corporation. The commissioner shall recommend the maximum amount of deposit of public funds each bank shall be allowed to receive. None of these public funds shall be deposited in any bank other than those contained in the list.

Section 1 of Act 21 of 1935, as codified in Ark. Code Ann. § 19-8-105(a).

The parties all agree that in 1935 when this provision was passed, savings and loans were in existence, but they did not have the traditional powers of banking. Thus, there is no question that savings and loans were recognized as being different than banks in 1935 and thus were treated differently.

As already mentioned, savings and loans became FDIC insured and acquired traditional powers of banks by way of changes in federal laws in the 1980’s. Appellants, however, suggest that important distinctions still exist between the two. For instance, savings and loans are organized and regulated differently than and separately from banks. In addition, savings and loans have a primary different purpose than banks, viz., they are the nation’s foremost source of financing for housing. And, while savings and loans are insured under the administrative umbrella of the FDIC, they are still insured by a separate fund, SAIF. This being true, the appellants argue that the SAIF fund is the same type of insurance pool as FSLIC, which insured savings and loans in 1935 and was excluded under Act 21.

The trial court apparently found the above distinctions to be insignificant under Act 21. In ruling that savings and loans now meet the requirements under Act 21, the trial judge made a contemporaneous interpretation of the 1935 Act. The appellants argue that this was erroneous, and we must agree.

This court has stated that the meaning of a written word in a statute must be limited to its meaning as of the date it was employed or used. Schuman v. Certain Lands, 223 Ark. 85, 264 S.W.2d 413 (1954). At the time Act 21 was enacted in 1935, savings and loans were clearly excluded. This is not the case where savings and loans have come into being since legislation has been passed, and the general language in the legislation could be interpreted to include them. See generally N. Singer, Sutherland Statutory Construction §§ 49.01 — 49.11 (1984).

In so stating, we note the appellees’ argument that the use of “banking institutions” in Act 21 is rendered useless. However, when Act 21 was enacted, this term apparently included institutions such as trust companies, savings banks and industrial loan institutions which were under the State Bank Commissioner’s jurisdiction. Regardless, since savings and loans were clearly excluded, we know the 1935 Legislature did not include savings and loans as banking institutions.

We also believe it is significant that, since the 1980’s, the General Assembly has either failed or refused to amend Act 21 of 1935 so as to include savings and loans as public funds depositories. In fact, the president of the Arkansas League of Savings Institutions testified that two different efforts have been made to amend Act 21 to include savings and loans and each met with no success. Thus, the General Assembly has met several times and has made no move to change Act 21, which is a further indicator that savings and loans are considered to be different from banks for the purposes of deposits of public funds. See Pledger v. The Grapevine, Inc., 302 Ark. 18, 786 S.W.2d 825 (1990).

In sum, while it is true that savings and loans now more closely resemble banks, valid distinctions between the two still remain. The General Assembly enacted Act 21, which effectively excluded savings and loans from its provisions, and that body, as a matter of public policy, must decide whether savings and loans should now be included. In so deciding, we must reverse the trial court’s declaratory judgment.

Hays, J., not participating.


text:
    George HAMILTON, Joe Williams, Individually and d/b/a Williams Trucking Company, Robert Coffman, and Continental Baking Company v. Lazeta RUSSELL, as Special Administratrix of the Estate of Molly April Russell, Deceased, and Dorothy Lyles Peters, as Special Administratrix of the Estate of Tiffany Leanne Fason, Deceased, and Saul Peters and Dorothy Peters
    91-110
    821 S.W.2d 35
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991
    [Rehearing denied January 27, 1992.]

      Friday, Eldridge & Clark, by: Donald H. Bacon, for appellants Robert Coffman and Continental Baking Company.

      Wright, Lindsey & Jennings, by: James M. Moody, for appellants George Hamilton and Joe Williams.

      McDaniel & Wells, P.A., by: Bobby McDaniel, for appellee Laxeta Russell.

      Lightle, Beebe, Raney, Bell & Hudgins, by: Mike Beebe, and A. Watson Bell, for appellee Dorothy Lyles Peters.
   Tom Glaze, Justice.

This appeal ensues from the trial court’s granting a new trial, finding that the damages awarded appellees by the jury were inadequate. The jury damages awarded resulted from a vehicular collision between an automobile driven by appellee Saul Peters and a tractor-trailer parked partially on Highway 63 by appellant George Hamilton. This tractor-trailer rig was owned by appellant Joe Williams. After the initial collision, the Peters’ vehicle then collided with another tractor-trailer which was operated by appellant Robert Coffman, but owned by appellant Continental Baking Company. These collisions resulted in personal injuries to Saul Peters and in the deaths of two ten-year-old girls, Molly Russell and Tiffany Fason who were passengers in the Peters’ car. Tiffany was Peters’ stepdaughter. The jury found no fault on Peters’ part and instead apportioned liability between the various appellant tractor-trailer operators and owners.

The jury awarded Peters $8,300.00 for damages resulting from his personal injuries and $12,500.00 each to him and his wife, Dorothy (Tiffany’s natural mother), for their mental anguish claims. Molly’s parents, Lazeta and Marvin Russell, were also each awarded $12,500.00 for mental anguish. Finally, Tiffany’s and Molly’s estates were awarded funeral expenses in the respective amounts of $1,300.00 and $4,800.00. Appellants challenge the trial court’s decision, setting aside these damages and granting a new trial, by arguing the trial court improperly substituted its opinion for the jury’s assessment of damages.

Appellants acknowledge the rule that when the trial court grants a motion for a new trial, the standard on review is whether there is a manifest abuse of discretion. Carr v. Woods, 294 Ark. 13, 1740 S.W.2d 145 (1987). They agree, as well, that, under ARCP Rule 59(a)(5), the inadequacy of the recovery can be a ground for a new trial. Id., see also Lamons v. Croft, 290 Ark. 341, 719 S.W.2d 426 (1986); Adams v. Parker, 287 Ark. 1, 709 S.W.2d 617 (1986); Lawson v. Lewis, 276 Ark. 7, 631 S.W.2d 611 (1982); Roberts v. Simpson, 275 Ark. 181, 628 S.W.2d 308 (1982). Appellants argue, however, that those cases in which this court has allowed a trial court to set aside a jury award were ones where a jury had failed to take into account all the elements of the total injury proven. Appellants point out Carr as an example where out-of-pocket damages for lost wages and medical expenses could be precisely calculated and a new trial was properly granted because the jury awarded less than the proven or calculated amount. Appellants attempt to distinguish the present case from those cited above because the damages questioned here are for mental anguish which only the jury is competent to determine.

Of course, in wrongful death actions where mental anguish has been an issue, this court has said time and again the amount of money required to compensate for “more than normal grief’ lies largely within the province of the jury. St. Louis S.W Ry. Co. v. Pennington, 261 Ark. 650, 677, 553 S.W.2d 436 (1977). However, our review in the case at hand is not limited only to the awards given for mental anguish. In ruling on the appellees’ request for a new trial, the trial judge in relevant part made the following comments:

... I was impressed by the jury’s finding and apportionments of the fault or liability. And while their findings were supported by sufficient evidence, I would not have been so shocked had their findings been differently as to the apportionment of forty-five, forty-six and nine percent I believe apportionment between the defendants. There is a little more argument or room or variance there than in the fixing of damages.
In each case my recollection is, and I have looked at the judgment, the jury having apportioned the fault, then allowed only the actual out-of-pocket expenses for the cost of burial. As to Saul Peters I think they limited his recovery for his own personal injuries to again doctor and medical hospital bills and awarded the parents $12,500.00 each for mental anguish and loss of the child. I always maintain an open mind until in this case giving the defense an opportunity to be heard. But from the very first outlet, opportunity to observe this verdict the Court was unquestionably shocked by the inadequacy of the verdict.
[Defendants’] brief cites and my first impression with it was that the plaintiff had the burden of showing not only the inadequacy, but that the damage award by the jury was of a nominal amount. And in light of today’s economy the Court is of the opinion that the award of $12,500.00 was a nominal award for the loss of the children. (Emphasis added.)

The trial judge voiced concern that the $12,500.00 award was nominal for the loss of the two children, but also noted the limited recovery allowed Saul Peters, who, the jury determined, bore no fault for the collisions and resulting damages. The parties stipulated that Peters incurred medical expenses and lost earnings totalling $8,225.80, and while the appellants never stipulated that these damages were related to the collisions, the jury awarded Peters $8,300.00, or just $74.20 more than the stipulated amount. In addition to his own testimony, Peters offered medical evidence that sufficiently supported his pain and suffering claims, which included a closed head injury, partial bladder rupture, fracture of his fourth metacarpal on his left hand, a fracture of his radius, left wrist, and minor lacerations and abrasions. Cf. The Scott-Burr Stores v. Foster, 197 Ark. 232, 122 S.W.2d 165 (1938). He was hospitalized for seven days, and was given pain medication during his stay.

The parties also stipulated that Tiffany’s funeral and related expenses were $2,407.00 and Molly’s were $4,795.70. Yet, the jury awarded Tiffany’s estate only $1,300.00 but awarded $4,800.00 to Molly’s. Appellants are unable to explain the jury’s assessment on these claims, nor can we.

In sum, while the trial judge largely focused on what he asserted to be inadequate or nominal damages to the appellees for the loss of the two children, our review of the judge’s decision to grant a new trial for inadequate damages is not so narrow. Clearly, Tiffany’s funeral expenses were incorrectly assessed; Peters’ award is questionable, as well, for the reasons discussed. Added to these ostensively inadequate awards, appellees suggest the trial court may have also reasonably perceived that the jury failed to consider the elements and evidence showing mental anguish, especially since Saul Peters, Tiffany’s stepfather for three years, was compensated the same as Tiffany’s mother, who had raised Tiffany from birth. Appellees also note that Saul’s' mental anguish award was the same amount awarded the Russells, Molly’s natural parents.

When considering all of the damage awards discussed above, we are unable to say the trial court abused its discretion in finding the jury’s assessment too small. Therefore, we affirm, leaving the parties to retry the case as to damages as agreed to by all the parties and as directed by the trial court.


author: Donald L. Corbin, Justice.

text:
    Dary PURIFOY v. STATE of Arkansas
    CR 91-141
    822 S.W.2d 374
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991
    [Rehearing denied February 3, 1992.]

      James B. Bennett for appellant.

      Winston Bryant, Att’y Gen., Clementine Infante, Asst. Att’y Gen. for appellee.
   Donald L. Corbin, Justice.

Appellant, Dary Purifoy, urges this court to reverse his convictions of first degree murder and second degree battery. A Union County jury returned the convictions, and sentenced appellant to prison terms of thirty-five years for the murder conviction and six years for the battery conviction. We affirm.

Appellant presents four arguments for reversal. Each of appellant’s first two arguments encompasses dual challenges to the sufficiency of the evidence and to a variance in the charge contained in the information and the proof presented at trial. Appellant’s first argument focuses on the battery conviction and his second argument focuses on the murder conviction. However, we confine our discussion of appellant’s first two arguments to a single analysis given the similarities in each argument’s relevant facts and applicable law.

The state presented the following proof at trial. On July 8, 1990, appellant was at Crab Apple Point in Calion, Arkansas. Appellant became angry with his girlfriend, Angela Lowery, after Lowery talked to another man at the club. Appellant and Lowery began pushing and hitting each other, and this altercation led to a fight breaking out between several men at the club. The fighters included appellant, David Nesbit, James Wright and Fred Hall on one side, and Scotty Hall and Renford Green on the other side. Another man, Aric Steve Lemons was at the club during the fight, but the state presented proof that Lemons was not involved in the fight. Following the fight, appellant and David Nesbit left Crab Apple Point, and Scotty Hall, Aric Lemons, and Green went down to the lake.

Appellant and David Nesbit returned to the area a few minutes later carrying loaded guns. Appellant was armed with a shotgun and Nesbit carried a .22 rifle. Appellant and Nesbit walked toward the lake where some of the men involved in the earlier fight were standing. Other than appellant and Nesbit, no one in the area was armed. When Lemons decided to go to his car, someone yelled, “There he is,” and appellant and Nesbit began shooting at Lemons. Lemons sustained two gunshot wounds in his chest and shotgun wounds in his right hand, neck, right leg, and right foot. He subsequently died.

During the shooting incident, the crowd at the lake began to run. Testimony indicated that appellant and Nesbit fired toward the crowd. James Wright, a member of the crowd, sustained bullet wounds in both legs, and testified that a .22 bullet remained in one of his legs.

The state subsequently filed an information charging appellant and David Nesbit with first degree murder for causing the death of “Arie Steve Lemons.” The information also charged appellant alone with first degree battery for causing physical injury to James Wright by means of a deadly weapon.

Appellant asserts three specific challenges to the sufficiency of the evidence supporting his convictions. We interpret his primary argument to be that sufficient evidence does not exist to support either the murder or battery conviction because the state’s proof indicated that Lemons’ fatal wounds and Wright’s leg wounds were inflicted with a .22 rifle. Appellant relies on the proof that established Nesbit was armed with a .22 rifle while appellant carried a shotgun.

We must affirm if we find substantial evidence to support appellant’s convictions. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991); Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). In determining whether there is substantial evidence, we consider only the evidence that is favorable to the state and supports appellant’s convictions. Smith, supra; Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991). In cases such as the instant one, where the theory of accomplice liability is implicated, we affirm a sufficiency of the evidence challenge if substantial evidence exists that the defendant acted as an accomplice in commission of the alleged offense. Ark. Code Ann. § 5-2-402(2) (1987).

The state’s evidence illustrated the intertwined nature of the activities of appellant and David Nesbit on the evening of July 8, 1990. Scotty Hall testified that appellant and Nesbit fought together in the altercation at the club. Curtis Clark, appellant’s half-brother, testified that appellant and Nesbit took a shotgun and a .22 rifle out of Clark’s vehicle and “took off’ together. Testimony regarding the shooting incident itself indicates that one of the two men threw a gun to the other man, and that both appellant and Nesbit shot at Aric Lemons and then shot towards the crowd at the lake.

Ark. Code Ann. § 5-2-403(a)(2) (1987) provides that a person acts as an accomplice of another person in the commission of an offense if, with the requisite intent, he aids, agrees to aid, or attempts to aid the other person in commission of the offense. Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). We have stated that the following factors are relevant in determining the connection of an accomplice with the crime: presence of the accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990).

In this case, the proof at trial was amply sufficient in illustrating the joint nature of appellant’s and Nesbit’s activities. While appellant argues that he never discussed hurting anyone and never intended to help Nesbit hurt anyone, we have held that concert of action to commit an unlawful act may be shown by circumstantial evidence, without direct proof of a conspiracy agreement. King v. State, 271 Ark. 417, 609 S.W.2d 32 (1980). We have further held that under the accomplice liability statute, a defendant may properly be found guilty not only of his own conduct, but also by that conduct of his accomplice. Id. When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). There is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id. As the proof at trial was amply sufficient in illustrating the joint nature of appellant’s and Nesbit’s activities, the fact that Nesbit’s shots may have actually inflicted Lemon’s fatal injuries and Wright’s leg wounds is irrelevant to the question of appellant’s criminal liability for the offenses.

Appellant’s second challenge to the sufficiency of the evidence argues that the state did not prove appellant possessed the requisite intent to be convicted of first degree murder or second degree battery. Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1989) provides that a person commits murder in the first degree if he causes the death of another person with the purpose of causing the death of another person. This court has recognized that intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991); Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). The factors relevant in inferring the intent necessary for first degree murder include the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Williams, supra. In the instant case, the state produced testimony that appellant fired a shotgun at an unarmed Aric Lemons from an approximate distance of fifteen feet. The pathologist who conducted the autopsy on Lemons testified that Lemons sustained a series of shotgun injuries in his neck and limbs. Based on this evidence, it is certainly reasonable to conclude that appellant acted purposefully as an accomplice to David Nesbit in causing the death of Aric Lemons.

Ark. Code Ann. § 5-13-202 (1987) sets out the elements of second degree battery:

(a) A person commits battery in the second degree if:
(1) With the purpose of causing physical injury to another person, he causes serious physical injury to any person;
(2) With the purpose of causing physical injury to another person, he causes physical injury to any person by means of a deadly weapon;
(3) He recklessly causes serious physical injury to another person by means of a deadly weapon[.]

We have held that the only specific intent required by the statute is the intent to cause physical injury. Holmes v. State, 288 Ark. 72, 702 S.W.2d 18 (1986). In this case, the state presented evidence that appellant fired a shotgun directly at the crowd of which Mr. Wright was a member. Based on this evidence, a jury could certainly conclude that appellant possessed the necessary intent to cause injury required by the second degree battery statute.

Appellant’s third challenge to the sufficiency of the evidence argues that the trial court erred in instructing the jury under subsections (a)(1) and (a)(3) of the second degree battery statute because the state failed to prove James Wright suffered a “serious physical injury.” Ark. Code Ann. § 5-1-102(19) (1987) defines serious physical injury as an injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Mr. Wright testified that he. spent a week in the hospital to recover from his gunshot wounds. He further testified that one of his legs still “gives out” on him. We have held that the question of whether injuries constitute a temporary or protracted impairment of a function of bodily member or organs is for the jury to decide. Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976). Based on Mr. Wright’s testimony as to the permanent nature of his injury, we believe sufficient evidence of serious physical injury exists. See also Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990).

Appellant combined his sufficiency of the evidence challenges with challenges to variances in the charges contained in the information and the proof produced at trial. Appellant argues that he was not adequately apprised of the charges against him because the information filed by the state charged appellant as a principal rather than as an accomplice.

An information is not defective if it sufficiently apprises the defendant of the specific crime with which he is charged to the extent necessary to enable him to prepare a defense. Richard v. State, 286 Ark. 410, 691 S.W.2d 872 (1985). As this court has held that there is no distinction between principals and accomplices for purposes of establishing criminal liability, Parker, supra, we find that the allegations contained in the information were sufficient to apprise appellant of the crimes with which he was charged.

Appellant also alleges he was prejudiced by omissions of the language “or another” in both the information and the trial court’s instructions on first and second degree battery. This court has refused to consider trivial variances in wording that have no prejudicial effect on a defendant’s rights. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989); Hall v. State, 276 Ark. 245, 634 S.W.2d 115 (1982). Since appellant does not present any argument concerning the manner in which omission of the language prejudiced him, we reject his argument concerning the omission.

Appellant’s initial arguments regarding appellant’s accomplice liability also dwell on the fact that David Nesbit was not charged with the offense of battery. Ark. Code Ann. § 5-2-405 (1987) provides:

In any. prosecution for an offense in which the liability of the defendant is based on conduct of another person, it is no defense that:
(2) The other person has not been charged with, prosecuted for, convicted of, or has been acquitted of any offense or has been convicted of a different offense or degree of offense, based upon the conduct in question[.]

This section clearly indicates that the absence of a battery charge against Nesbit is irrelevant to the question of appellant’s liability. See also Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982). Since we find sufficient evidence that appellant’s activities on the night in question satisfied the requirements of first degree murder and second degree battery, we affirm the trial court’s refusal to direct a verdict in favor of appellant.

Appellant’s third argument for reversal concerns the misspelling in the information of the murder victim’s name. The state charged appellant with the murder of “Arie Steve Lemons.” However, the proof at trial established that the victim’s name was “Aric Steve Lemons.” The doctrine of idem sonans provides that a variance between allegation and proof of a given name is not material so long as the pronunciation or sound remains substantially the same. Taylor v. State, 72 Ark. 613, 82 S.W. 493 (1904); Black’s Law Dictionary. In the instant case, the variance involves a silent “e” and a pronounced “c” in “Aric.” The trial court discussed the idem sonans doctrine in overruling appellant’s argument concerning the misspelling of Aric Lemons’ name. The court stated that idem sonans applied in this case because the misspelling of Mr. Lemon’s name in the information was not misleading.

This court has stated that a variance in the spelling of a name is not fatal in cases where the inaccuracy is not misleading. Bennett v. State, 84 Ark. 97, 104 S.W. 928 (1907). Furthermore, Ark. Code Ann. § 16-85-405(a)(2) (1987), provides that a defect in an indictment does not render the indictment insufficient so long as the defect does not prejudice the substantial rights of the defendant. When an offense is described with sufficient certainty to identify the act, section 16-85-405(c) provides that an erroneous allegation as to the person injured is not material. In the instant case, appellant does not allege the manner in which the misspelling of the murder victim’s name prejudiced him, and we see no indication of any confusion surrounding the identity of the victim. Therefore, we affirm the trial court’s ruling that the minor misspelling of the victim’s name in the information did not constitute a fatal defect.

Appellant’s final argument for reversal alleges that the trial court erred in refusing to instruct the jury on causation. At the close of the evidence, appellant proffered the following instruction:

In these instructions you have been told that the State must prove that Dary Purifoy caused a particular result. Causation exists when the result would not have occurred except for the conduct of Dary Purifoy operating either alone or together with another cause, unless the other cause was clearly sufficient to produce the result and the conduct of Dary Purifoy was clearly insufficient by itself.

The trial court refused to instruct the jury as appellant requested.

This court has held that there is no error in refusing to give an instruction where there is no evidence to support the giving of that instruction. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983); Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981). In this case, no evidence exists to support the theory that the death of Aric Lemons and the wounding of James Wright resulted from any cause other than the shooting activities of appellant and Nesbit. The trial court properly instructed the jury on the requirements for accomplice liability, and we have determined that sufficient evidence existed to support appellant’s convictions as an accomplice. Since appellant bases his causation argument solely on the erroneous proposition that he cannot be held liable for his accomplice’s actions, we find no evidence to support a causation instruction. We therefore affirm the trial court’s refusal to give appellant’s requested instruction.

Affirmed.


text:
    Robert Reece THOMPSON v. STATE of Arkansas
    CR 91-260
    821 S.W.2d 37
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991

      John Joplin, for appellant.

      Winston Bryant, Att’y Gen., Catherine Templeton, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Robert Reece Thompson, asks this court to reverse the Crawford County Circuit Court’s denial of appellant’s motion to withdraw his previously entered guilty plea. On October 5, 1990, appellant pleaded guilty to the offenses of burglary, theft of property, and being a felon in possession of a firearm. On the same date, the trial court sentenced appellant to serve 25 years in the Arkansas Department of Correction with twelve years suspended subject to certain conditions. On October 19,1990, the trial court received a pro se motion from appellant petitioning the court to allow appellant to withdraw his guilty plea on grounds that appellant had received ineffective assistance of counsel. The trial court treated appellant’s motion as a motion for new trial under A.R.Cr.P. Rule 37, and conducted a hearing on October 25, 1990. The trial court denied appellant’s motion after finding that appellant had received effective assistance of counsel, and that appellant voluntarily entered his guilty plea with knowledge and understanding of the consequences. We affirm.

At the time appellant entered his plea, A.R.Cr.P. Rule 37 had been abolished and A.R.Cr.P. Rule 36.4, as amended, was in effect. While Rule 37 has since been reinstated, and Rule 36.4 has been amended once again, Rule 36.4 provided the appropriate post-conviction remedy at the time appellant entered his guilty plea. The trial court was correct in treating appellant’s motion as a motion for post-conviction relief because motions for a plea withdrawal under A.R.Cr.P. Rule 26.1 are considered untimely if filed after sentencing. Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988). In Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977), this court held'that a motion under Rule 37 is necessary after a sentence has been carried into execution. As we have determined that Rule 36.4, rather than Rule 37, provided the appropriate post-conviction remedy at the time of appellant’s plea, we consider this case an appeal authorized by Rule 36.4 as it read at the time appellant entered his guilty plea.

This court will not reverse a trial court’s denial of post-conviction relief unless the findings are clearly erroneous. Owens v. State, 296 Ark. 322, 756 S.W.2d 899 (1988). In a petition based on an ineffective assistance of counsel claim, a petitioner must show, first, that counsel’s representation fell below an objective standard of reasonableness, and second, that a reasonable probability exists that but for counsel’s unprofessional errors, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988); Jones v. State, 288 Ark. 375, 705 S.W.2d 874 (1986). In order to satisfy the “outcome” prong of the Strickland standard, an appellant challenging a guilty plea must show that he would not have pled guilty and would have insisted on a trial. Hill v. Lockhart, 474 U.S. 52 (1985). We have recognized that a defendant whose conviction is based on a plea of guilty will have difficulty in proving prejudice under the Strickland standard since his plea rests on his admission in court that he did the act with which he is charged. Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986), Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984).

Appellant claims that his attorney coerced him into entering a guilty plea by informing him on the day of trial that he would not receive a fair trial because the jury was all white. (Appellant is black.) Appellant further alleges that counsel informed him on the day of trial that he would receive a life sentence plus one hundred twenty-five years if appellant chose to go to trial. Finally, appellant argues that since his attorney failed to advise him that October 5, 1990 was his trial date, appellant was inappropriately dressed in his prison jumpsuit. Appellant argues that his prison attire factored into his decision to plead guilty because of appellant’s belief that the prison clothes would prejudice the jury against him. In addition to these specific allegations of his attorney’s ineffectiveness, appellant argues that counsel did not return his phone calls, did not meet with appellant on enough occasions to discuss appellant’s case, and did not discuss with appellant the merits of the state’s case against appellant. However, this court has held that general assertions that counsel did not meet with the defendant enough, or did not aggressively prepare for trial are not sufficient to establish an ineffective assistance of counsel claim. Furr, supra.

Both appellant and his attorney testified at the hearing on appellant’s motion to withdraw his plea. While appellant testified to the allegations of error raised on appeal, his attorney denied appellant’s allegations. Appellant’s attorney testified that he never told appellant that appellant would not receive a fair trial because of prejudice, and never told appellant he would be sentenced to life plus a hundred and twenty-five years. The attorney further testified that he had gone over the plea proceedings with appellant on the day before appellant entered his plea, and that appellant knew what to expect on the morning of the plea. Appellant’s attorney testified that he had never seen anyone so happy to take a plea, and that appellant actually gave a “high five” when the attorney informed appellant of the plea agreement. At the conclusion of the hearing, the trial court found that appellant knowingly and voluntarily entered his guilty plea and that appellant had received effective assistance of counsel. The trial court further stated its belief that appellant never wanted to go to trial, but wanted only “the best sentence he could get.”

This court has stated that conflicts in testimony are for the trial judge to resolve, and he is not required to believe any witness’ testimony, especially the testimony of the accused since he has the most interest in the outcome of the proceedings. Huff v. State, supra; Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). Certainly, in the instant case, we cannot say that the trial court’s decision was clearly erroneous.

Affirmed.


author: Robert L. Brown, Justice. David Newbern, Justice,

text:
    FIDELITY MORTGAGE COMPANY of Texas v. James Martin COOK d/b/a Cook Construction Company
    91-221
    821 S.W.2d 39
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991

      Dickey Law Firm, P.A., by: Mark E. Long, for appellant.

      Ramsey, Bridgforth, Harrelson & Starling, by: Phillip A. Raley and William S. Roach, for appellee.
   Robert L. Brown, Justice.

The appellant, Fidelity Mortgage Company of Texas, appeals from a judgment for deceit in favor of the appellee, James Martin Cook, d/b/a Cook Construction Company, in the amount of $35,538.29. The salient issue on appeal is whether the circuit judge, who tried the case without a jury, clearly erred in finding that the elements of deceit existed in this case.

We hold that the circuit judge did not err in his findings, and we affirm his decision.

The facts involve the building of a hunting lodge instigated by two men who had formed a partnership — James Cunningham and John Staggers. The partners had agreed between themselves that Cunningham would put up the land for the lodge and Staggers would arrange the financing for the construction. The original contractor for the job quit, apparently due to a problem in getting paid. Staggers then approached a second contractor, James Cook. Cook was agreeable to doing the job for $250,000 but only if he could receive assurances that he would be paid.

Staggers had had a previous business relationship with W. R. Parker, a principal with Fidelity Mortgage Company. They discussed the need for financing to build a hunting lodge, and Parker put Staggers in touch with James Trimble, a vice-president of Fidelity. Trimble faxed Staggers a letter on September 23, 1988, which stated that Fidelity “hereby agrees ... to loan up to $250,000 (new loan) at a rate of 12% per annum.” A commitment fee of $2,500 was required from Staggers. There was no statement in the letter that Fidelity would act as a broker for the loan or seek participation from other financial institutions. Staggers in turn faxed a copy of the letter to Cook’s attorney that same day.

On the following day, September 24, 1988, Cook entered into a construction contract with Staggers and Cunningham to build the hunting lodge. “Under that contract, Staggers and Cunningham were to pay Cook $150,000 after a certain part of the project had been completed. Cook began construction on September 26, 1988. During the first week of construction, Cook’s attorney called Fidelity and talked to Trimble and was assured that Fidelity would pay the money to Cook in accordance with the construction contract. Trimble also testified that during the last week in September Staggers asked him to write a letter stating that the Fidelity loan was to be used to build a hunting lodge and that payments would be made to Cook pursuant to the construction contract.

On October 11,1988, Cook submitted a bill for $150,000 to Staggers after completing the requisite part of the project. Payment was not made on that date, and Cook’s attorney advised him to stop work. Due to assurances from Trimble that payment would be forthcoming, Cook continued work on the project. Three days later, on October 14, Trimble, on behalf of Fidelity, wrote the letter that Staggers had requested in which he specifically stated that the loan was for the hunting lodge property and that payments would be made to Cook in accordance with the construction contract. By letter dated October 18, Trimble wrote Staggers that payment would be delayed because one of the trustees (later identified as W.R. Parker) was needed to approve the check, and he was out of the country.

At some point between October 17 and October 21, 1988, Cook stopped work on the project. The amount of work performed by Cook and the fact that Cook was not paid are not in dispute. Fidelity, through Trimble, finally severed its business relationship with Staggers in November or December. At that time Trimble advised Cook’s attorney that Staggers had never paid the $2,500 loan commitment fee.

Cook first sued Staggers and Cunningham for $150,000. He obtained judgment and foreclosed his lien against the hunting lodge property, thereby realizing $50,000. He collected an additional $1,004 by garnishments of Cunningham.

Cook next sued Fidelity for deceit on the basis that Fidelity misrepresented its capacity to make the loan and to pay him and further that it intentionally induced him to rely on these false representations. After the bench trial, the circuit judge found for Cook and assessed damages against Fidelity in the amount of $35,538.29, which represented Cook’s out-of-pocket expenses for the job, less the amounts received by garnishment and foreclosure.

Fidelity urges on appeal that the elements of deceit were not proven in this case and that the circuit judge clearly erred in finding that they were. We have had occasion recently to discuss the five elements of deceit, which are:

(1) The defendant makes a false representation — ordinarily, one of fact;
(2) The defendant knows that the representation is false or he does not have a sufficient basis of information to make it; that is, scienter;
(3) The defendant intends to induce the plaintiff to act or to refrain from acting in reliance upon the misrepresentation;
(4) The plaintiff justifiably relies upon the representation;
(5) The plaintiff suffers damage as a result of the reliance.

Baskin v. Collins, 305 Ark. 137, 141, 806 S.W.2d 3, 5 (1991); see also Nicholson v. Century 21, 307 Ark. 161, 818 S.W.2d 254 (1991); MFA Mutual Ins. Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981). Each element must be proven by a preponderance of the evidence in order to prove deceit. See Storthz v. Commercial National Bank, 276 Ark. 10, 631 S.W.2d 613 (1982).

a. False Representation

We have no trouble in sustaining the circuit judge’s finding of misrepresentation. Simply stated, Fidelity agreed to loan $250,000 to Staggers when its net worth totalled less than $50,000. Had there been any hint that Fidelity would act as the broker for the loan or would ask for institutions to participate in the loan, our conclusion would be different. But there was no such intimation in the loan commitment letter signed by Trimble on behalf of Fidelity on September 23. There, he stated clearly and unequivocally under a heading entitled “Commitment:”

Fidelity Mortgage Company of Texas hereby agrees to loan up to $250,000 (new loan) at a rate of 12% per annum.

This Fidelity simply did not have the capability to do.

We have noted recently that many courts now construe false representation to include “(1) Concealment of material information and (2) Non-disclosure of certain pertinent information.” Baskin v. Collins, 305 Ark. 137, 142, 806 S.W.2d 3, 5 (1991). If Fidelity did not have sufficient assets of its own as of September 23 to make the loan, Trimble should have arranged for independent financing from other institutions before writing the loan commitment letter. But he did not do this. Rather, he obligated Fidelity to make the loan while concealing insufficient net worth and knowing full well that Fidelity did not have the capability to make good on its promise.

Fidelity argues that it was not obligated to make payments because it never received the $2,500 loan fee from Staggers. In the numerous conversations and letters between Fidelity and Cook during September and October 1988, there was no mention that the fee had not been paid. Yet all during this period Trimble made verbal and written assurances on behalf of Fidelity that Cook would be paid for his work. The trial judge correctly found that this conduct constituted a false representation.

b. Scienter

Nor do we agree that Fidelity lacked the intent to misrepresent. Trimble and Parker did not reveal the net worth of Fidelity to Cook or his attorney during the critical period of construction. Nor did they indicate that the loan fee had not been paid. On the contrary, the statements of Trimble were in the nature of assurances that all was well and that the delay in payment was only due to Parker’s temporary unavailability. Only much later did the true circumstances concerning Fidelity and its relationship to Staggers come to light.

c. Intention to Induce to Act

Fidelity vigorously contends that it had no knowledge of Cook’s involvement when it issued the loan commitment to Staggers on September 23 and that Cook’s reliance on the commitment was revealed to it after the construction was virtually complete. The record, though, does not support this contention.

Cook’s attorney testified that he followed up with Trimble the first week of construction to make certain that the loan funds would be paid to Cook according to the construction contract. He was assured that they would be. Trimble recalled talking to Cook’s attorney but was uncertain about the details of the conversation. He did recall that Staggers asked him “in the last part of September” to write a letter identifying the loan with the hunting lodge property and the construction contract. Moreover, W.R. Parker testified that he knew before the commitment letter was issued that the loan would be used to build a hunting lodge.

Under such facts, we cannot say that the circuit judge’s finding that Fidelity knew from Cook’s counsel that Cook was relying on the loan commitment and doing the work because of it was clearly erroneous. As the trial judge said, the only reason to issue a loan commitment was to give assurances upon which someone will rely. Cook clearly did rely on it and Fidelity, through Trimble, knew early on in the construction that Cook was doing so.

The doctrine of transferred intent is generally not applicable in cases of misrepresentation. See Prosser and Keeton, Law of Torts, ch. 18, § 107, p. 743 (5th ed. 1984). But where a document is intended to be directed to others in addition to the immediate recipient, or where it is customary for the document to be relied upon by third parties, the doctrine of transferred intent will be applied to support a case of misrepresentation. Prosser and Keeton at p. 744. This principle furnishes legal support for the circuit judge’s finding of scienter in this case.

d. Justifiable Reliance

There is no question that Cook relied on the loan commitment. Equally as clear is the fact that Fidelity, through Trimble, knew about the construction contract and gave assurances to Cook and his lawyer that it would be paid. Neither Cook nor his attorney were alerted to the fact that anything was amiss. The trial judge’s finding of justifiable reliance is not in error.

e. Damages

That Cook was damaged in terms of out-of-pocket expenses is obvious, as the trial judge found. We have no hesitancy in affirming the trial judge’s assessment of damages in the amount of the total expenses incurred from date construction commenced on September 26, 1988, less judgment amounts previously awarded, for a net judgment of $35,538.29.

Though Fidelity asserts that damages, if any, should be calculated from October 14, when it contends the first statements alleged to be misrepresentations were made, and not from September 26, we do not find that argument to be convincing. Testimony in the record supports the circuit judge’s finding that conversations about paying Cook were had with Trimble within a few days of September 26. Moreover, it is more than reasonable to assume that Fidelity knew the purpose of the loan and was aware that those involved in the construction would be relying on the commitment letter when it was issued.

Cook, finally, moves to recover costs for supplementing what he describes as a deficient abstract. We do not agree. Fidelity’s abstract was sufficient to advise this court of the facts underlying the issues on appeal. See Goodloe v. Goodloe, 253 Ark. 550, 487 S.W.2d 593 (1972).

The decision of the trial judge is affirmed. The motion of appellee to recover costs is denied.

Holt, C.J. and Newbern, J. dissent.

David Newbern, Justice,

dissenting. This case is very close on the question whether there is sufficient evidence to prove intent to deceive. It requires us to examine the fine line between failure to perform a contractual obligation and misrepresentation of fact. Surprisingly, no cases are cited by the parties dealing with the point, and I find no cases in which this Court has spelled it out. There are, however, cases from other jurisdictions which are helpful.

In Rigby Corp. v. Boatmen’s Bank and Trust Co., 713 S.W.2d 517 (Mo. App. 1986), the Trial Court awarded summary judgment to a lender which allegedly silently assented to renewal of a promissory note it had no intention of renewing, and the Court of Appeals affirmed. The Court held there was simply no support (evidence) that, at the time the representations by silence were made, the lender harbored an intent not to renew the note.

Fraud is never presumed and the law allows an inference of such deception “only if the evidence rises above mere suspicion and points logically and convincingly” to its presence. Weaver v. Travers, 631 S.W.2d at 83. Thus, where the transaction comports as well with honesty as with fraudulent purpose, the law refers it to the better motive. Powers v. Shore, 248 S.W.2d at 5 [2-4]. [The lender’s] conduct — the assent to extend the note assumed — to call the note on the due date despite the promise to extend, therefore, under the evidence most favorable to [the borrower], amounts at best to breach of contract, but not to actionable fraud. [713 S.W.2d at 540]

In Mark Twain Plaza Bank v. Lowell H. Listrom & Co., Inc., 714 S.W.2d 859 (Mo. App. 1986), a bank received a “trust letter” from a stock broker to the effect it would transfer shares of stock of a client to the bank as collateral. The letter failed to state that the shares in question were encumbered in a way that significantly lowered their value and made the promised delivery doubtful. The Court of Appeals affirmed the Trial Court’s holding that fraudulent misrepresentation had occurred. There was evidence, however, that the broker knew of the encumbrance which devalued it, and which would cause it not to be delivered, and that the bank was relying on the promise to deliver the stock.

In the case now before us, we have no direct evidence that when Trimble made the representations about the loan he knew and withheld the fact that Fidelity could not make the loan or that outside assistance was unlikely. There is nothing to show he knew the loan would- not be made. We do have, however, the Trial Court’s factual determination that Trimble was not telling the truth when he stated that the only reason the money was not forthcoming was because the signature of a Fidelity principal who was out of the country was needed. While someone could speculate, on the basis of this factual finding, that Trimble had become aware that Fidelity would be unable to come up with the money, I cannot go that far.

In my view, when the alleged misrepresentation consists of withholding information in the context of making a promise, we should insist on at least some evidence that when the promise was made there was an intent not to perform.

When misrepresentations involve a promise to perform an act in the future, the plaintiff must prove that, at the time the promise was made, the defendants did not intend to perform. Proof of the intent element is almost always made by circumstantial evidence and is “peculiarly a question for the trier of facts.” Pulchny v. Pulchny, 555 S.W.2d 543, 546 (Tex. Civ. App. 1977, no writ). Such intent (not to perform as promised) is usually not susceptible of direct proof because it depends on determining the “[h]idden purposes of the mind.” Id. at 545, quoting 37 Am.Jur. 2d, Fraud and Deceit, § 477 (1968). As stated in Pulchny, supra, to determine intent the court looks to the circumstances under which the promise was made, the relationships and interests of the parties, the nature of their transaction, the failure to perform and the nature of efforts of the promissor to perform. [Duval County Ranch Co. v. Wooldridge, 667 S.W.2d 887 at 895 (Tex. App. 3 Dist. 1984)]

See also Spoljaric v. Percival Tours, Inc., 708 S. W.2d 432 at 434 (Tex. 1986), where the Texas Supreme Court upheld a fraud determination but made it clear that “A promise to do an act in the future is actionable fraud when made with the intention, design and purpose of deceiving, and with no intention of performing the act.”

In this case, it may be that the Trial Court could have found an intent not to perform when the promise was made, but no such finding was made. While I understand the holding of the majority opinion to be that there was a withholding of material facts, I do not believe there has been a showing or a finding that Trimble knew facts which would make it clear to him that the loan could not be made. I would require evidence showing that he intended for Cook to rely on á promise he knew Fidelity could not or would not keep.

I respectfully dissent.

Holt, C.J., joins in this dissent.


author: Robert L. Brown, Justice.

text:
    Donald MOBBS v. STATE of Arkansas
    CR 90-34
    821 S.W.2d 769
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991

      Scott Manatt and Jerry Kelly, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant Donald Mobbs appeals from his conviction on six counts of incest, which resulted in consecutive sentences of ten years on each count, for a total of sixty years, and a fine of $30,000. He further appeals from the circuit court’s denial of his petition for post-conviction relief under Ark. R. Crim. P. 36.4, which was then in effect, on grounds of ineffective assistance of counsel. We affirm his conviction and the denial of his Rule 36.4 petition.

The facts are these. On January 2,1989, Sergeant Sherman Malcomb of the Cabot Police Department was informed by a teenage girl that she had been forced by the appellant to engage in various sexual acts with him. The girl also stated that she witnessed the appellant’s teenage stepdaughter performing sexual acts with Mobbs and another man. These acts were photographed and videotaped by the appellant, according to the girl. The police questioned the stepdaughter, who made a statement that Mobbs had taken the photographs. The police were further informed that two Polaroid cameras and a camcorder were located at Mobbs’s residence, along with films, tapes, and photographs of sexual acts. As a result of this interview, the officers obtained and executed a search warrant of Mobbs’s premises.

The Cabot police officers in conjunction with the Lonoke County Sheriff’s department seized various articles from the premises under the warrant on January 2, 1989. Wilma Mobbs, the appellant’s wife and the girl’s natural mother, was asked by Sheriff J.O. Isaac to notify the authorities if she found anything else. Five days later, Mrs. Mobbs discovered additional items in a tackle box in a storage shed, including multiple photographs of her daughter engaged in sexual acts with Mobbs. She reported her find to the sheriff who took custody of them.

On January 24, 1989, the prosecutor filed an information charging Mobbs with three counts of rape and three counts of promoting an obscene performance. A substituted information was filed on June 27, 1989, the day before trial, charging the appellant with six counts of incest from the summer of 1987 to January 2, 1989, under Ark. Code Ann. § 5-26-202 (1987), and three counts of promoting an obscene performance. The incest counts were severed and tried separately on June 28, 1989, and the conviction resulted.

The judgment and conviction order was not entered until July 18, 1989. On July 26, 1989, Mobbs’s trial attorney filed a notice of direct appeal. On July 29,1989, Mobbs, in his own hand, wrote a letter to the circuit court clerk alleging ineffective trial counsel on various grounds and asking for appointment of new counsel and declaration of a “mistrial.” The request was filed, but no action was taken on the request.

We considered the appeal and the Rule 36.4 petition in 1990 and remanded the matter for the circuit court’s consideration of Mobbs’s post-conviction request for relief. See Mobbs v. State, 303 Ark. 98, 792 S.W.2d 601 (1990). New counsel was appointed and a hearing was held on September 11,1990, at the conclusion of which the circuit court denied Mobbs’s petition and found that effective assistance of counsel had been provided. We now consider both the direct appeal and the denial of Rule 36.4 relief.

I. Post-Conviction Relief

Mobbs raises numerous points in support of his claim of ineffective counsel, but does not argue them all in his brief. We will consider only those points where argument is made.

The burden of proving ineffective assistance of counsel is heavy because counsel is presumed to have rendered effective assistance. Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986). In order to show ineffective counsel, Mobbs must meet the criteria set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984):

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

The appellant must further show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt. See Mays v. State, 303 Ark. 505, 798 S.W.2d 75 (1990), quoting Sutherland v. State, 299 Ark. 86, 771 S.W.2d 264 (1989).

Mobbs first alleges ineffectiveness in the trial counsel’s failure to request a continuance when the information was amended the day before trial. The amendment was substantial: the first information had charged the appellant with rape over a three-month period; the amended information charged six counts of incest over an eighteen-month peroid. Mobbs, however, failed to raise continuance as a ground for relief in his letter-petition. Nor did his newly appointed counsel do so at the hearing. Since the issue was not raised below, we will not consider it. See Elwood v. State, 297 Ark. 101, 759 S.W.2d 557 (1988); Gunn v. State, 296 Ark. 105, 752 S.W.2d 263 (1988).

We similarly answer Mobbs’s claims that trial counsel was ineffective in failing to object to the admission of seventeen photographs depicting nudity and various sexual acts with the stepdaughter and in failing to object to a single instruction to the jury containing multiple counts of incest. The points were not raised below in the petition or at the hearing and, hence, were not preserved for appeal.

The appellant does contend that his trial counsel failed to renew a motion for directed verdict at the close of all evidence. He did not mention this in his letter-petition, but his new counsel raised the issue at the hearing. The prosecuting attorney stipulated at the hearing that the second motion was made. Regardless of whether it was or not, failure to renew this motion is not grounds for post-conviction relief. See Philyaw v. State, 292 Ark. 24, 728 S.W.2d 150 (1987); Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984). We further hold, as discussed below, that the evidence for conviction was sufficient. Accordingly, it would have been error for the circuit court to have removed the fact questions from the jury’s consideration by a directed verdict. Id. Moreover, we are cognizant of the fact that the evidence against Mobbs was extensive in this case. In sum, prejudice to Mobbs was lacking.

Other points raised for relief are either without merit or were not argued to the circuit court. We note in particular Mobbs’s point that trial counsel’s cross-examination of the stepdaughter and his wife lacked vigor. The extent of vigor employed in the cross-examination of a state’s witness is a matter of trial strategy and is not justification for relief. See Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986). The argument has no merit.

The appellant also argues that trial counsel was lacking in his failure to challenge the constitutionality of the state’s incest statute. See Ark. Code Ann. § 5-26-202 (1987). In particular, he argues that the statute violates his due process and equal protection rights because it affords prosecution against a natural daughter for incest but not against a stepdaughter. This specific argument, however, was not raised at the hearing or by Mobbs in his letter-petition. What was raised initially was an allegation that the prosecutor arbitrarily decided not to prosecute the stepdaughter for incest. That argument differs in substance from the constitutional claim now advanced on appeal. An appellant cannot change his argument on appeal. See Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990). That is exactly what the appellant has done in this appeal, and we will not consider it.

■ Finally, Mobbs argues that he was deprived of a fair and full hearing because the court'truncated his case, rejected his arguments, and refused the testimony of two witnesses. These arguments have no merit. The circuit court received a proffered summary of the testimony of the two witnesses whom Mobbs wished to present and then the live testimony of one of those witnesses. Though somewhat vague, the appellant’s argument appears to be that these witnesses would have shown that the stepdaughter had engaged in contracts with other men for sex and was an accomplice, not a victim.

Counsel made the argument that the stepdaughter was an accomplice at trial. We find no error in the circuit court’s decision.

II. Direct Appeal

We similarly reject the appellant’s arguments on direct appeal.

We first consider the appellant’s challenge to the sufficiency of the evidence. He argues that the stepdaughter was an accomplice and that her testimony must, therefore, be corroborated. A victim of a crime is not an accomplice. Ark. Code Ann. § 5-2-404(a)(1) (1987); see also Johnson v. State, 288 Ark. 101, 702 S.W.2d 2 (1986). In 1986, we quoted with approval commentary to Ark. Stat. Ann. § 41-305 (Repl. 1977), now codified as Ark. Code Ann. § 5-2-404 (1987):

(a) It seems clear that the victim of a crime should not be held as an accomplice in its perpetration, though his conduct in a sense assists in the commission of the crime. . . . So, too, to hold the female an accomplice in a statutory rape on her person would be inconsistent with the legislative purpose to protect her against her own weakness in consenting, the very theory of the crime.

Camp v. State, 288 Ark. 269, 272, 704 S.W.2d 617, 619 (1986).

The appellant would have it that both stepfather and stepdaughter are culpable, since the stepdaughter was willing, and thus there was no victim. The General Assembly, though, has voiced its clear policy against incest by way of a criminal statute. We are not willing to go so far as to hold that in cases, such as the one before us, we have only perpetrators and accomplices and no victims. While a minor, the incest statute existed to protect the stepdaughter even assuming that she was a willing participant which we do not concede. We hold that the stepdaughter was a victim and that corroboration of her testimony was not required.

The stepdaughter testified to oral sex or sexual intercourse on a daily basis during the eighteen months charged in the indictment. This is sufficient to sustain a conviction on the six counts charged. The photographs serve only to bolster the state’s case, but, again, corroboration is not required. The fact that some of the photographs may depict conduct that preceded the time period charged in the information is, therefore, not fatal to the appellee’s case.

Mobbs next asserts error in the court’s denial of his motion to suppress the photographs found by Mrs. Mobbs in the tackle box and delivered to the authorities. He questions specifically the initial search warrant issued and executed by the police on January 2, 1989, and the questioning of his stepdaughter which preceded the warrant’s issuance.

This argument misses the mark. The questioning of the stepdaughter and the search warrant did not result in seizure of the photographs. Mrs. Mobbs’s subsequent discovery five days later did. We have held that the exclusionary rule does not apply to private individuals. See Winters v. State, 301 Ark. 127, 782 S.W.2d 566 (1990). Moreover, as in Winters, we cannot say that this specific search was directed by Sheriff Isaac or was a joint endeavor with him, even though five days before he had asked Mrs. Mobbs to notify him if any materials depicting sexual conduct were found. Admittedly, the initial questioning and search warrant may have been a catalyst for the ultimate discovery. But the sheriffs request to Mrs. Mobbs was casual and was not a mandate, and because of this, it was not sufficient to establish a connection between Mrs. Mobbs’s find and official action. See Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989); Winters v. State, supra.

Mobbs, lastly, points to the admission into evidence of two photographs depicting a nude female torso bound with rope. The stepdaughter’s face is not clearly identified. The stepdaughter first told Sgt. Malcomb on January 2, 1989, that she did not recall being tied by rope. At trial, she did not deny that the incident had occurred but testified that she did not recall when it happened. Sheriff Isaac stated at trial that he took the photographs of part of a videotape, which showed the stepdaughter being bound with a large cord or nylon rope. The combined testimony of the sheriff and the stepdaughter was sufficient to authenticate the two exhibits and to prove that the photographs were what the prosecutor claimed them to be. That is all our rule requires. See Ark. R. Evid. 901.

Affirmed.

       Ark. R. Crim. P. 36.4 was effective from July 1, 1989, to January 1, 1991. It was repealed and Ark. R. Crim. P. 37 was reinstated by Per Curiam order. In the Matter of the Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458 (1990).


text:
    Duane COURTEAU and Dollie Courteau as Guardians for the Estate of Timothy Courteau v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Peter Marvin and Fran Duke
    90-307
    821 S.W.2d 45
    Supreme Court of Arkansas
    Opinion delivered December 23, 1991

      Perroni, Rauls, Looney & Barnes, P.A., by: Stanley D. Rauls and Samuel A. Perroni, for appellant.

      Barber Law Firm, by: Michael E. Hale, Mitchell, Williams, Selig & Tucker, by: R.T. Beard, III;Friday, Eldridge & Clark, by: Laura Hensley Smith and Calvin J. Hall, for appellees.
   Albert Graves, Jr., Special Chief Justice.

This appeal arises from a malpractice action brought by Guardians of the Estate of Timothy Courteau (Appellants) against certain Physicians and a liability insurance carrier, during which the court denied Appellants access to statements given to Appellees’ attorney in her initial investigation. We affirm.

On July 2, 1986, while swimming in the Arkansas River, Timothy Courteau (Courteau) fractured his spinal column causing paralysis of both legs. He was hospitalized in North Little Rock Memorial Hospital (Memorial). After surgery, the breathing tube which had been inserted through his nose into his trachea was connected to a mechanical ventilator to assist his breathing. In the early morning of July 6, 1986, the breathing tube was discovered dislodged. Dr. Fran Duke, an emergency room physician for Memorial, repositioned it later that morning. Apparently, during the period between the displacement and replacement of the tube, Courteau suffered cardiac arrest and brain damage from oxygen insufficiency.

On July 9, 1986, Memorial’s Administrator notified the hospital’s insurance carrier, St. Paul Fire & Marine Insurance Company (St. Paul), of the occurrence, and St. Paul, through its Claims Representative, Chris LaLande, retained Laura Hensley of the firm of Friday, Eldridge, and Clark. Ms. Hensley immediately requested statements from employees involved who were potential defendants. The requests of the attorney were relayed by the claims representative to the Hospital Administrator, who, through Memorial’s chain of command, conveyed the request to the employees. On the 10th of July Ms. Hensley met with the employees involved and with Dr. Duke, from whom she also asked for a statement. Ms. Hensley asked that all of the statements include thoughts, opinions, and conclusions.

On February 18,1988, Appellants filed suit against St. Paul. They later amended the complaint to include Dr. Peter Marvin, Dr. Doyne Dodd, and Dr. Fran Duke. The complaint against Dr. Dodd was dismissed by summary judgment.

Attorneys for Appellants began to take depositions of Memorial’s employees, several of whom had given statements to Ms. Hensley in 1986. After some confusion, Appellants’ counsel discovered the existence of the statements, but Appellees’ attorneys objected to all efforts to obtain them, to have the witnesses refresh their memories with them, or to allow the trial judge to review them. Both at pre-trial hearings and during the trial, the trial court refused Appellants’ requests, holding the statements to be attorney-client communications and absolutely privileged.

The case was tried before a jury, nine of whom rendered a verdict for all defendants. After the trial court denied Appellants motion for new trial, Appellants appealed.

Appellants rely on three points for reversal. First, they contend that the written statements given to Ms. Hensley are not entitled to protection under the attorney-client privilege for four reasons: the communications (statements) were not made to or for a lawyer; they were not made for the purpose of facilitating the rendition of legal services; the witnesses were not the clients nor representatives of a client of Ms. Hensley; and the communications were not confidential. The trial court found to the contrary, and we agree.

Arkansas Rules of Evidence 502 provides in part:

(1)(1) A “client” is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.
(a) (2) A [“] representative of the client [”] is one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client.
(b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer’s representative. . . (4) between representatives of the client or between the client and a representative of the client. . . .

Who are the clients? The evidence is undisputed that when Memorial’s Administrator became alarmed on July 9, having heard of the untoward events involving Courteau, Memorial’s E.R. physician, and several employees, he sought assistance from the hospital’s carrier. St. Paul then retained Laura Hensley. It did so to protect itself and its insureds under the policy, who were Memorial, Dr. Duke, and all employees who were potential defendants. All those entitled to the protection of St. Paul’s policy covering the incident became clients of St. Paul’s retained counsel. Although Appellants do not contend that potential defendants are not entitled to representation, they object to the number claimed by Appellees without making objection to specific witnesses. It is important to note that potential defendants are to be determined at the time of the “communication” in the light of all the surrounding circumstances. We cannot say that those persons involved in the treatment of Courteau up to and through the events of July 6 were not potential candidates for suit.

Were the communications (statements) made “to or for” a lawyer? Ms. Hensley, the St. Paul claims representative, and the Administrator, Harrison Dean, all relate by affidavits that statements were to be obtained for delivery to Ms. Hensley. The same persons say that the request was made on July 9, after St. Paul had retained Ms. Hensley. It is apparent that the Appellants’ attorneys are not convinced of the occurrence or the chronology of those events. The trial court was. Likewise, Appellants’ observation that the attorney’s request was relayed through corporate channels does not affect the result.

Appellants propose, although without much conviction, that the statements were not made for the purpose of facilitating the rendition of legal services. There is no doubt that Memorial was an insured of St. Paul and a client of Ms. Hensley. It is difficult to surmise how Ms. Hensley might have gone about advising Memorial without obtaining from its employees information about their actions and observations which had occurred within the scope of their corporate duties. This acquisition is a necessary part of the corporate attorney’s process of advising and protecting the corporate-employer client and is within the privilege. Upjohn Co. v. United States, 449 U.S. 383 (1981). Certainly Ms. Hensley would want to hear or read the employee’s report of the incident to determine the extent of involvement and potential exposure of that particular employee-cleint.

As to whether such communications were confidential, we refer to Ark. Rules of Evid. 502(a)(5) which provides

A communication is “confidential” if not intended to be disclosed to third persons, other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

The statements were written personally by the witnesses and delivered to Ms. Hensley or to a hospital superior for transmission to her. These statements (communications) were requested and intended for no other person.

Appellants make much of the fact that the information requested by Ms. Hensley to be in the statements, should also have been included in regular hospital records. Even so, this does not color or taint the communication of similar or even identical information by the client to his or her attorney under the attorney-client privilege. It is not the information or the opinion that is privileged, but rather the communication of them to the attorney, in whatever form. Neither the requirement that the information also be provided to some other forum, nor its divulgence in response, will subvert the privilege. The United States Supreme Court in Upjohn quoted Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830, 831 (E.D. Pa 1962) as follows: “ ‘The protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. . . .’” Id. at 395-396.

The statements were made by clients and made at the request of and to inform their own and their corporate employer’s attorney for the purpose of facilitating her rendition of legal advice to both. As such, they are absolutely privileged.

Since the statements are absolutely privileged and may not be “discovered”, it is not necessary that we decide Appellants’ second and third points for reversal which are based upon the assumption that the statements are not communications within the privilege, but rather work-product or even some lesser form.

Affirmed.

Holt, C.J., not participating.


author: Per Curiam.

text:
    Rodney McDUFFIE v. STATE of Arkansas
    RC 90-52
    826 S.W.2d 809
    Supreme Court of Arkansas
    Opinion delivered January 6, 1992

      John Wesley Hall, Jr., P.A., by: Craig Lambert, for appellant.

      Winston Bryant, Att’y Gen., by: T. Jeff Vining, Asst. Att’y Gen., for appellee.
   Per Curiam.

On August 6, 1990, attorney John W. Hall filed a motion in this court for a belated appeal on behalf of Rodney McDuffie on the ground that attorney Chris Mercer, who represented McDuffie at trial, had failed to file a timely notice of appeal from McDuffie’s conviction for possession with intent to deliver cocaine. The motion alleged that after the expiration of the time for filing notice of appeal, McDuffie hired Mr. Hall, paid a retainer and although he at all times desired to appeal his conviction no notice of appeal was ever filed.

This court remanded to the Circuit Court of Pulaski County to conduct an evidentiary hearing to determine whether Rodney McDuffie was entitled to a belated appeal based on ineffective assistance of counsel. The trial court concluded from that hearing that the Hall Law Firm had been contacted on May 31,1990, and McDuffie had timely paid the firm to handle his appeal, notice of which could have been filed on or before June 24,1990. The trial court also found that Mr. Mercer had not been relieved and had a continuing duty as trial counsel to file an appeal in McDuffie’s behalf.

On February 11, 1991, this court sustained the findings of the trial court by granting a belated appeal conditioned upon the submission of an affidavit from the Hall Law firm acknowledging that the failure to file notice of appeal was attributable to counsel’s omission. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979). The Hall Law Firm moved to reconsider and to supplement the record and, when these motions were denied, applied to the United States District Court for a writ of habeas corpus. The Magistrate Judge determined that Rodney McDuffie did not receive effective assistance of counsel in connection with his undisputed wish to appeal, that Mr. Mercer, as unrelieved trial counsel, was obligated under Ark. R. Crim. P. 36.26 to file notice of appeal, that Mr. Hall, on the other hand, accepted $700 on May 31, 1990, toward an agreed retainer of $1,000, that while Mr. Hall made it clear that the full retainer was required before he was under a duty to act, he accepted seventy percent and was accordingly under some obligation to avoid a procedural default in the appeal process, commenting:

The filing of a notice of appeal, while critical, is not time consuming or difficult. Mr. Hall made no attempt to determine and monitor the notice deadline. Nor did he coordinate with Mr. Mercer to make sure Petitioner McDuffie’s appeal rights were not lost.
This could be said to be one of those unfortunate situations where no one is at fault and everyone is at fault. Without attempting to apportion blame, it is the opinion of the court that collectively, the attorneys’ actions were deficient and fell below the standard of effective representation as outlined in Strickland v. Washington, 466 U.S. 668 (1984).

Pursuant to those findings the Magistrate Judge concluded that Rodney McDuffie’s Sixth Amendment rights were violated and that if an appeal were not granted by the State of Arkansas within sixty days a writ of habeas corpus should issue.

We concur in the veiw that Rodney McDuffie is entitled to a belated appeal and that the failure to perfect the appeal is attributable to the attorneys involved, that is to say, that neither can avoid responsibility by assuming it was the duty of the other to act. We agree as well that the refusal of John W. Hall to shoulder the responsibility for the default should not deprive Rodney McDuffie of the right to appeal, which we hereby grant. A copy of this order shall be forwarded to the Committee on Professional Conduct.