author: Tom Glaze, Justice. Robert L. Brown, Justice,

text:
    Grover HENDERSON v. STATE of Arkansas
    CR 95-326
    910 S.W.2d 656
    Supreme Court of Arkansas
    Opinion delivered November 13, 1995

      The Law Offices of Damon Young, by: John M. Pickett, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Grover Henderson was convicted of delivery of a controlled substance (three rocks of crack cocaine) and sentenced to life imprisonment. He was also fined $5,000. He appeals on multiple grounds. We affirm.

Jerry Revels was a resident of Stamps and a confidential informant of then Stamps Chief of Police, AI Dyar. Chief Dyar knew Revels was a drug user, and for a period of time he paid Revels $50 per drug buy to make cases for prosecution against drug sellers. On the night of April 23, 1993, Revels was involved in a drug buy for Dyar. According to the testimony of Dyar at trial, he and Revels had discussed making a buy from a person named Lamont Reynolds. Dyar first searched Revels and then gave him a micro-cassette tape recorder to record the events and $20 to purchase the cocaine. Dyar situated himself where he could observe the purchase. Dyar saw Revels talk with Reynolds and then continue on where Revels met Henderson. Dyar, who was thirty-five or forty yards down the road, stated that he saw Henderson pull a pill bottle out of his sock and remove a packet of tinfoil. Revels took the tinfoil and gave Henderson the $20 bill. When Revels returned to Dyar’s truck, Dyar opened the tinfoil and saw three rock-like substances. Dyar rewound the tape and he and Revels listened to it on the return to the police station where the cocaine and tape were turned over to Joe Thomas of the drug task force. Later that same evening, Revels gave a hand-written statement in which he described buying “three rocks” from Henderson for $20.

On August 22, 1993, Revels signed an affidavit under oath at the request of Henderson’s defense counsel. In that statement, he averred that Henderson, whose nickname was “Knot,” had never sold him any rock cocaine during April of 1993. He stated that he talked to Henderson on the night of April 23,1993, about buying crack cocaine but that a sale was not made. He stated that Chief Dyar coached him to make the statement that he bought drugs from Henderson that night, although in reality he bought the cocaine from a person coming out of Henderson’s house. He stated that Dyar threatened to use a burglary charge against him, if he did not implicate Henderson.

Because of Revels’s conflicting statements, a lie detector examination was scheduled before State Police Investigator Jerry Reed. The meeting occurred on September 16, 1993, but before the polygraph was administered, Revels told Investigator Reed that he had lied in his August 22 affidavit to Henderson’s defense attorney and that the first statement given to Chief Dyar on April 23, 1993, was the truth. Revels then gave the investigator a handwritten statement describing Henderson’s sale of the crack cocaine to him for $20. He later told the investigator that he had given the contrary affidavit to Henderson’s defense counsel because Henderson had threatened him.

Trial in this matter was originally scheduled for December 6, 1993, but Revels did not appear for trial, and the prosecutor asked for and was granted a continuance. On December 8, 1993, Revels was located by Lafayette County Deputy Sheriff Peter Briggs and arrested for failure to appear at trial. On that same date, Revels gave a statement, revealing that on December 5,1993, Henderson told Revels that he heard Revels had been subpoenaed for trial but that the subpoena had not been served. Revels’s December 8 statement further reflected that Henderson told Revels that he did not have to go to court, and if Revels wanted to lay low for a while, he could stay out of sight until everything blew over. Revels further stated that Henderson picked him up the morning of the trial, took him to the Livingston Motel in Springhill, Louisiana, paid for the room, and gave him money for food.

On August 29, 1994, trial of this matter commenced. The prosecutor called Jerry Revels as a state witness. However, when Revels testified that Henderson had always wanted him to come to court to testify, the prosecutor moved to declare Revels a hostile witness, which the trial court granted. The prosecutor then used Revels’s December 8 written statement to impeach Revels’s trial testimony. Later, on redirect examination of Revels, the prosecutor offered into evidence Revels’s earlier statements to Al Dyar on April 23, 1993, and to Investigator Reed on September 16, 1993, wherein Revels reaffirmed his April 23 drug buy from Henderson. Defense counsel stated that he had no objection to the introduction of these two statements.

Chief Dyar also testified for the state concerning his observations of Henderson’s involvement in the drug sale and, in addition, the micro-cassette tape evidencing a drug transaction between Revels and Henderson was played for the jury. Chief Dyar and Officer Briggs both had identified the voices on the tape as being those of Revels and Henderson. Based on this evidence, the jury found Henderson guilty.

Henderson first contends that the state’s evidence is insufficient to support the judgment. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Frier v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). Only evidence supporting the verdict will be considered by this court on appeal. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

As set out factually above, Chief Dyar witnessed Henderson’s participation in the crack cocaine transaction with Revels. In addition, that sale had been tape recorded, and after Henderson’s voice was properly identified on the tape, that tape was introduced to corroborate the other proof showing Henderson’s participation in the drug sale. While Henderson questions on appeal the credibility of Chief Dyar, Dyar’s credibility was a matter for the jury to weigh and resolve. Henderson also says the tape, standing alone, was too cryptic to show delivery of the drugs beyond a reasonable doubt, and without the written statements Revels made to Chief Dyar on April 23, 1993, and Investigator Reed on September 16, 1993, no sense could be made of what was said on the tape. He now asserts those two statements were prior inconsistent statements and should not have been given substantive effect. Henderson, however, failed to make that point below, and as mentioned hereinabove, Henderson simply stated he had no objection to the trial court’s admitting those two statements into evidence. In sum, the trial court correctly ruled the state’s evidence was sufficient to support a conviction.

Henderson next argues that the state’s evidence showing Henderson had tampered with a witness some six months after the April 23, 1993 drug sale constituted reversible error because it was impermissible evidence of a separate crime or wrong under Ark. R. Evid. 404(b). He also claims such evidence was inadmissible since it was used to impeach on a collateral matter and also it was utilized as substantive proof, rather than for impeachment purposes.

Other jurisdictions have recognized similar evidence of subsequent crimes or wrongs as probative of consciousness of guilt. Coronado v. State, 654 So. 1267 (Fla. Dist. Ct. App. 1995) (subornation of a witness); Peoples v. State, 874 S.W.2d 804 (Tex. Ct. App. 1994) (threat to a witness); Byrd v. State, 634 A.2d 988 (Md. Ct. Spec. App. 1993) (attempted subornation of a witness); see also State v. Broussard, 649 So. 2d 726 (La. Ct. App. 1994). This court has also permitted the introduction of other crimes or wrongs as relevant to show consciousness of guilt. See Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995); citing Spicer v. State, 32 Ark. App. 209, 799 S.W.2d 562 (1990) (refusal to take a breathalyzer test); Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994) (escape); Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993) (attempt to cover up crime); Morris v. State, 21 Ark. App. 228, 731 S.W.2d 230 (1987) (persuasion of witness to change testimony). In the Spicer and Morris cases, the court of appeals specifically discussed consciousness of guilt as an exception to Rule 404(b). Certainly a factfinder is entitled to know whether a defendant attempted to thwart his prosecution by secreting a witness who had implicated him in the charged offense. Thus, we hold that the proof regarding Henderson and his travel with Revels to Louisiana on the day set for trial was relevant circumstantial evidence of his knowledge or consciousness of guilt and was not unfairly prejudicial.

Because we decide that the evidence of witness tarnpering is relevant and strongly probative of a defendant’s knowledge or consciousness of guilt, we must also reject Henderson’s argument that such evidence was inadmissible as collateral matter. See Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). And for the same reason, Henderson’s claim that the trial court erred in allowing Revels’s December 8, 1993 statement to Officer Briggs is also of no import. As we have already held, other like evidence was properly introduced to show Henderson’s role in assisting Revels’s earlier absence from trial, and Revels’s December 8 written statement was merely cumulative evidence and not prejudicial. See Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995).

Before leaving this part of Henderson’s argument, we mention his brief contention that the trial court erroneously admitted hearsay evidence through Deputy Sheriff Briggs’s testimony on what the register at the Livingston Motel in Springhill, Louisiana showed for the dates December 6, 1993, through December 8, 1993. According to Briggs, the register showed a fictitious name (Arthur Johnson) and reference to a Buick automobile, which is the same make of car that Revels drove. Henderson objected to this testimony, and the court allowed it solely for impeachment purposes. A copy of the motel register was introduced into evidence by the state.

We observe again that the testimony was relevant as it was some evidence of registration in Louisiana on the trial date under a false name, and, thus, some evidence that Henderson engaged in witness tampering. This was not evidence regarding a collateral matter. Moreover, we do not view the motel register as hearsay evidence. Clearly, had the state’s introduction of the register through Deputy Sheriff Briggs been for the purpose of proving that Arthur Johnson was registered at the Livingston Motel on December 6, 1993, and drove a Buick automobile, that would be hearsay evidence. The motel register, however, was not introduced to prove the truth of the matter asserted. See Ark. R. Evid. 801(c); see also Owens v. State, 318 Ark. 61, 883 S.W.2d 471 (1994). Rather, its purpose was to illustrate that the room was registered under an assumed name — a fact which Revels denied. There was no abuse of discretion in the trial court’s admission of this evidence for impeachment purposes.

In his third point, Henderson argues error occurred as a result of the prosecutor’s closing arguments. The first statement by the prosecutor occurred during his closing argument following the guilt phase when reference was made to Henderson’s impeachment of Chief Dyar by a 1987 misdemeanor conviction for failure to pay taxes: “They said well good we got a policeman here we can attack now too.” The prosecutor next intimated to the jury, according to Henderson, that Henderson had plied Revels with drugs and money so that he would not testify against him. And, thirdly, during arguments following the penalty phase, Henderson was absent and the prosecutor stated: “[H]e’s not even here to accept the sentence that you’re going to hand down on him.”

Regarding the first two statements, in each instance the trial court admonished the jury that closing arguments must be reasonably related to the evidence. The response by the trial court in both instances was proper.

After the prosecutor’s comment about Henderson’s absence following the penalty phase, defense counsel moved for a mistrial which was denied. Subsequently, Henderson returned to the courtroom, and defense counsel moved the court to bring the jury in to see that Henderson was back. The trial court did so. Any possible prejudice caused by Henderson’s absence and the prosecutor’s remark was cured by defense counsel’s proposal to bring the jury back to observe Henderson. These were matters of trial court discretion, and we find no abuse of discretion on the points raised. See Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993).

Henderson next urges that the trial court was biased against him, which denied him a fair trial. Henderson is correct that a judge must avoid even the appearance of impropriety. Canon 2, Arkansas Code of Judicial Conduct (1993); City of Jacksonville v. Venhaus, 302 Ark. 204, 788 S.W.2d 478 (1990); Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978). We conclude, however, that this point has no merit.

Henderson presents three examples of the trial court’s rulings at trial which, he contends, confirm an appearance of bias. The first involves the questioning of Jerry Revels by both the prosecutor and defense counsel on whether Revels was lying. When defense counsel asked whether Revels was lying, the prosecutor objected, and the objection was sustained. However, when the prosecutor asked the question to Revels, there was no objection to it by defense counsel. Henderson’s argument in this regard is frivolous.

Henderson also points to a question by the prosecutor asking Chief Dyar whether the statements by Revels corroborated the tape, to which defense counsel objected. The basis for defense counsel’s objection was that this was a task for the jury to decide. The trial court allowed it. We consider this issue a judgment call by the court. Manifestly, it does not support an allegation of bias.

As his third example, Henderson cites us to the trial court’s ruling sustaining the prosecutor’s objection to a question posed to Chief Dyar on cross-examination about whether his affidavit for arrest warrant on his incident report was true. The objection was made to the form of the question. The trial court also sustained the prosecutor’s objection to defense counsel’s explanation of the plea negotiation surrounding Chief Dyar’s 1987 misdemeanor conviction. Both rulings are entirely plausible and exhibit no prejudice by the trial court. Nor does the trial court’s allowance of the evidence regarding witness tampering, as already noted.

Henderson next contends that his life imprisonment sentence for first-offense delivery of crack cocaine constitutes cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. We conclude, too, this argument forms no basis for reversal. First, the sentence falls within the limits set by the General Assembly for the offense. See Ark. Code Ann. § 5-64-401 (Repl. 1993). Secondly, we have held that if the sentence fixed by the trial court is within legislative limits, we are not free to reduce it even though we might consider it to be unduly harsh. Williams v. State, 320 Ark. 498, 898 S.W.2d 38 (1995); Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990). We have carved out extremely narrow exceptions to this general statement of the law: (1) where the punishment resulted from passion or prejudice, (2) where it was a clear abuse of the jury’s discretion, or (3) where it was so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. See Williams v. State, supra; Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990); Parker v. State, supra; see also Harmelin v. Michigan, 501 U.S. 957 (1991).

Evidence in this case clearly reveals that Henderson’s sale of three rocks of cocaine to Revels was not an isolated incident. The tape recording of the drug transaction contains Henderson’s admission that he had given five rocks of cocaine to a girl to sell for him, she sold two, and the rocks Henderson was selling to Revels were the three rocks she had returned having been unable to sell them because they were soft from her having sweated on them. Two handwritten statements from Revels entered into evidence by the state corroborated the tape recording. Consistent with this evidence, the prosecutor during the penalty phase told the jury without objection that, contrary to defendant’s counsel’s argument, Henderson’s drug involvement with Revels was not isolated, and in fact, Henderson was also involved with another person’s (a girl’s) attempt to sell “dope.” He told the jury “it was hard to catch these guys (like Henderson), because everybody is willing to sell the dope for them. . . .”

We note that the dissenting justices conclude Henderson’s life sentence runs afoul of the moral sense of the community because Henderson only sold three rocks of crack cocaine and this was his first offense. Apparently, it is true that Henderson has not been convicted of selling crack before, but as we pointed out above, Henderson has been involved in at least another drug sale transaction which was known by the jury when it returned Henderson’s life sentence. The jury had every right to believe that Henderson was no innocent bystander when it comes to selling or delivering controlled substances. In any event, Henderson offered no proof or argument showing the sentence imposed here was contrary to the moral sense of the community.

Finally, we find no merit in Henderson’s contention that there was cumulative error in this trial. No motion was made to this effect, and we, as a result, will not consider it. Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994).

The record has been reviewed for other reversible error pursuant to Supreme Court Rule 4-3(h), and none has been found.

Affirmed.

Newbern, Brown and Roaf, JJ., dissent.

Robert L. Brown, Justice,

dissenting.

The majority affirms a life sentence for a first offense involving a $20 sale of .238 grams of crack cocaine (3 rocks). This amounts to one strike and you’re out. I would affirm the conviction and remand for resentencing on grounds that the sentence was so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. As the majority opinion makes clear, that is one standard by which we gauge the propriety of sentences. See, e.g., Williams v. State, 320 Ark. 498, 898 S.W.2d 38 (1995).

The sentence prescribed by the General Assembly for the delivery of less than 28 grams of cocaine is “not less than ten (10) years nor more than forty (40) years, or life” plus a fine not exceeding $25,000. Ark. Code Ann. § 5-64-401(a)(l)(i) (Repl. 1993). The range for the jury to consider is very broad: 10 years to life imprisonment for a quantity of drugs up to 28 grams.

Henderson contends that a life sentence for first-offense delivery of three rocks of crack cocaine constitutes cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. I agree. This is the first time that a life sentence has been affirmed in this State where the defendant’s crime was one offense and a first offense and where the quantity of drugs sold was such a minor amount. While I am extremely reluctant to reverse the jury in this case on grounds that it did not represent the moral sense of the community, I must conclude that it did not. The United States Supreme Court has held that under similar circumstances a reversal of the sentence is warranted. See Solem v. Helm, 463 U.S. 277 (1983). In Solem, the Court affirmed reversal of a sentence of life without parole for writing a $100 “no account” check. The defendant had 6 prior felonies. The majority did so for proportionality reasons, finding that Solem was treated more harshly iri the state than were other criminals who committed more serious crimes. The Court affirmed reversal under the Eighth Amendment to the U.S. Constitution.

Subsequently, in Harmelin v. Michigan, 501 U.S. 957 (1991), a splintered court in a plurality decision affirmed a first-offense sentence of life without parole for possession of 672 grams of cocaine. Six members of the Court, however, still endorsed a proportionality review. According to Justice Kennedy, speaking for three members of the Court in a concurring opinion, a comparative analysis of a sentence with other sentences is “appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” Harmelin, 501 U.S. at 1005.

In the case before us, I conclude that an inference of gross disproportionality is evident when a first offense for a $20 sale of a minimal amount of crack cocaine garners a life sentence. A comparative analysis of convictions for drug sales which we have affirmed in recent years confirms that the sentence was disproportionate to the crime:

• Affirmed a ten-year sentence for sale of cocaine. Elders v. State, 321 Ark. 60, 900 S.W.2d 170 (1995).
• Affirmed a 75-year sentence for selling 1 rock of crack cocaine where the defendant had 7 prior felony convictions. Williams v. State, 320 Ark. 498, 898 S.W.2d 38 (1995).
• Affirmed a 15-year sentence for first count of a sale of a controlled substance and life imprisonment for a second count for a drug sale occurring at a later date. Robinson v. State, 317 Ark. 407, 878 S.W.2d 405 (1994) (trial counsel failed to object to the jury’s sentence of life when the verdict form had provided 80 years as the maximum).
• Affirmed a life sentence for possession with intent to deliver of 40 pounds of marijuana, in excess of 112 grams of cocaine, LSD, drug paraphernalia, and for possession by a felon of a firearm. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994).
• Affirmed a sentence of 32 years for possession of 4 bags of marijuana with intent to deliver and drag paraphernalia where the defendant was a habitual offender with 7 prior convictions. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994).
• Affirmed a sentence of 19 years for 4 offenses which included continuing criminal enterprise, public servant bribery, delivery of cocaine, and use of a communication facility to further a drug felony. Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993).
• Affirmed 10 years in prison and fines for 4 counts of delivery of marijuana, mushrooms with a controlled substance, and 1/8 of an ounce of cocaine. Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992).
• Affirmed a life sentence for sale of 35 capsules of cocaine and possession of a firearm where the defendant was a habitual offender. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991).
• Affirmed a sentence of 35 years for sale of 1 rock of crack cocaine where defendant had one prior conviction and was charged as a habitual offender. Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990).
• Affirmed a conviction of 60 years for each of 2 counts of delivery of a controlled substance where defendant was a habitual offender. Williams v. State, 292 Ark. 616, 732 S.W.2d 135 (1987).
• Affirmed life sentence for delivery of a “sack” of cocaine sold for $10,000. Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985).

These cases highlight the uniqueness and the disproportionality of the sentence meted out in this case.

There are two final points that need to be made. A case calling for a consideration of proportionality would be extremely rare. But our case law has contemplated such a review, to the extent of determining whether the sentence is wholly disproportionate to the crime charged, at least since 1941, and has reiterated the principle multiple times since then. See Williams v. State, supra; Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993); Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990); Parker v. State, supra; Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983); Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979); Pridgeon v. State, 266 Ark. 651, 587 S.W.2d 225 (1979); Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978); Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977); Hinton v. State, 260 Ark. 42, 537 S.W.2d 800 (1976); Carter & Burkhead v. State, 255 Ark. 225, 500 S.W.2d 368 (1973); Davis v. State, 246 Ark. 838, 440 S.W.2d 244 (1969); Geurin v. City of Little Rock, 203 Ark. 103, 155 S.W.2d 719 (1941); see also Scott v. State, 27 Ark. App. 1, 764 S.W.2d 625 (1989).

In addition, the General Assembly in its sentencing guidelines for guilty pleas and bench trials has recognized the need for proportionality in sentencing. Act 532 of 1993 seeks to ensure that the “sanctions imposed following conviction are proportional to the seriousness of the offense of conviction and the extent of the offender’s criminal history.” Ark. Code Ann. § 16-90-801(b)(l) (Supp. 1993). In short, both this court and the General Assembly have endorsed proportionality review of the offense vis-avis the punishment in limited circumstances.

Had Henderson been charged with witness tampering or obstruction of justice and convicted, or had he been charged and convicted of a second sale of crack cocaine, I would view this sentence differently. But the sole charge for which he was convicted and sentenced was the $20 sale of crack cocaine, which was his first offense. I would affirm the conviction but reverse the life sentence and remand for resentencing.

Newbern and Roaf, JJ., join.

       To reiterate, these statements reflect Revels said that he did purchase crack cocaine from Henderson.

       To reiterate, we note Revels denied at trial that Henderson ever encouraged his absence from court and when the trial court allowed the state to impeach Revels by using his earlier December 8, 1993 statement to the contrary, Henderson claims its actual use was substantively to show guilt.

       Following a guilty plea for Henderson’s offense or a bench trial resulting in conviction, a sentence of 3 1/2 years would have been presumed under the sentencing standards grid. Ark. Code Ann. § 16-90-803(a)(3) (Supp. 1993). Because this presumptive sentence is less than the minimum sentence prescribed by law, the minimum sentence of 10 years would apply. Ark. Code Ann. § 16-90-803(b)(3)(c) (Supp. 1993). Trial courts may deviate from the presumptive sentence when aggravating circumstances such as evidence tampering are involved. Ark. Code Ann. § 16-90-804(d)(2)(J) (Supp. 1993).


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    James SWINK, Jr. v. ERNST & YOUNG, d/b/a Richard J. Shelton, Jr.
    95-234
    908 S.W.2d 660
    Supreme Court of Arkansas
    Opinion delivered November 13, 1995

      Donna J. Wolfe, for appellant.

      J. Andrew Heaton and Friday, Eldredge & Clark, by: William H. Sutton, Kevin A. Crass, and Jonann C. Roosevelt, for appellee.
   Tom Glaze, Justice.

In this appeal, appellant James Swink, Jr., contends the trial court erred in granting the Ernst & Young accounting firm’s ARCP Rule 12(b)(6) motion to dismiss Swink’s complaint. On February 2, 1994, Swink, Jr., brought this suit individually, but his allegations and request for damages were based upon a 1985 contract between Swink & Company, Inc., and Ernst & Young. Under that contract, Ernst & Young agreed to examine, report, review, and submit annual financial statements, schedules, audits, and federal and state income tax returns in accordance with generally accepted auditing standards and SEC requirements. Although not named as a party in the contract, Swink, Jr., asserted that, as management head of Swink, Inc.’s municipal bond department, he suffered compensatory losses as a result of an inaccurate audit submitted by Ernst & Young for the year ending December 31, 1988. Swink, Jr., further alleged his personal damages were caused by Ernst & Young’s breach of contract, negligence and misrepresentation. Swink, Jr., alternatively alleged he was a third-party beneficiary of Swink, Inc.’s contract with Ernst & Young, and was entitled to damages under this status as well.

Based upon Rule 12(b)(6), Ernst & Young moved to dismiss Swink, Jr.’s, complaint, and the trial court granted the motion with prejudice. In doing so, the trial court stated that, under Arkansas law, Ark. Code Ann. § 16-114-302 (Supp. 1993), an accountant is not liable to persons not in privity of contract with the accountant except in cases where fraud or intentional misrepresentation is shown. The trial court concluded Swink, Jr.’s, complaint and accompanying exhibits reflected that his request for personal damages should fail because no privity existed between him and Ernst & Young. The trial court also held that § 16-114-302 precluded Swink, Jr.’s negligence and third-party beneficiary claims. And finally, it decided Swink, Jr.’s misrepresentation claim was barred by Arkansas’s three-year statute of limitation. The trial court found Swink, Jr. either knew or should have known of any misrepresentation made by Ernst & Young as early as 1989, yet waited five years to file suit.

We first address Swink, Jr.’s argument that § 16-114-302 does not preclude his claims against Ernst & Young. That statute reads as follows:

No person, partnership, or corporation licensed or authorized to practice under the Public Accountancy Act of 1975, § 17-12-101 et seq., or any of its employees, partners, members, officers, or shareholders shall be liable to persons not in privity of contract with the person, partnership, or corporation for civil damages resulting from acts, omissions, decisions, or other conduct in connection with professional services performed by such person, partnership, or corporation, except for:
(1) Acts, omissions, decisions, or conduct that constitutes fraud or intentional misrepresentations; or
(2) Other acts, omissions, decisions, or conduct if the person, partnership, or corporation was aware that a primary intent of the client was for the professional services to benefit or influence the particular person bringing the action. For the purposes of this subdivision, if the person, partnership, or corporation:
(A) Identifies in writing to the client those persons who are intended to rely on the services, and
(B) Sends a copy of the writing or similar statement to those persons identified in the writing or statement,
then the person, partnership, or corporation or any of its employees, partners, members, officers, or shareholders may be held liable only to the persons intended to so rely, in addition to those persons in privity of contract with such person, partnership, or corporation.

It is undisputed that Swink, Jr.’s name does not appear in the original contract between Swink, Inc., and Ernst & Young; nor was Swink, Jr., actually named in any subsequent audit documents and reports. However, he points out that two audit reports submitted by Ernst & Young reflect they were intended for the SEC, and Swink, Inc., and its “management.” As a management head in Swink, Inc., Swink, Jr., claims he was in privity of contract with Ernst & Young, and therefore not barred by the terms of § 16-114-302. Swink, Jr.’s argument is meritless.

First, privity of contract is defined as that connection or relationship which exists between two or more contracting parties. Black’s Law Dictionary 5th Ed., page 1079. Swink, Jr., was not one of the contracting parties, and in that respect, he clearly was not in privity of contract with Ernst & Young.

Nonetheless, Swink, Jr., claims that under Arkansas law contracts made for the benefit of a third party are actionable by that party, and so long as Swink, Jr., is identified as one of the class for whose benefit the Ernst & Young/Swink, Inc., agreement was made, he succeeds to the benefits or rights intended under that agreement.

Swink, Jr., relies in part on the case of H. B. Deal & Co. v. Bolding, 225 Ark. 579, 283 S.W.2d 855 (1955), where contractor Deal & Co. entered into an agreement with the United States of America to construct a government facility. Under that contract, Deal and its subcontractors were required to pay all laborers and mechanics based upon a set rate. Fifteen laborers and mechanics brought suit under the agreement, alleging Deal and another contractor had failed to pay at the prescribed rate. The Deal court first noted its earlier decision of H. B. Deal & Co., Inc. v. Marlin Judge, 209 Ark. 967, 193 S.W.2d 315 (1946), where it held the compensation and pay-rate provision in the construction contract was placed there for the benefit of the laborers and mechanics who were entitled to maintain an action thereon as third-party beneficiaries. The Deal court then concluded that it was not essential that the plaintiffs (laborer or mechanic) be named in the contract or his identity be ascertained at the time the contract is made, so long as he was one of the class for whose benefit the contract is made. H. B. Deal & Co., 225 Ark. at 582, 283 S.W.2d at 858.

The contract before us now stands in sharp contrast to the one in Deal. While Ernst & Young plainly contracted to bring to management’s attention opportunities for economies in or improved controls over Swink, Inc.’s operations, the Swink, Inc./Ernst & Young contract and its use of the term “management” in no way reflects an intent that Swink, Jr., would personally benefit from the parties’ agreement.

Swink, Jr.’s third-party beneficiary argument also conflicts with the provision and terms contained in § 16-114-302. While it can generally be said that an accountant may be liable to a contracting client for any breach of contract in the rendering of professional services, § 16-114-302 proscribes extension of that liability to persons not in privity of contract. Section 16-114-302 provides only two exceptions: (1) where an accountant is shown to have committed fraud or an intentional misrepresentation or (2) if the accountant was aware that a primary intent of the contracting client was to benefit or influence the person who later brings suit against the accountant. To extend liability in this second instance, the accountant must have (1) identified in writing those persons who are intended to rely on the services, and (2) sent a copy of that writing or statement to those identified persons. § 16-114-302(2).

Here, Ernst & Young indisputably never identified Swink, Jr., in writing, or otherwise, as a person who was intended to rely on the accounting firm’s services. Nor did Swink, Jr., allege in his complaint that Ernst & Young sent him a copy of a statement announcing such intent. Because Swink, Jr., was not in privity of contract with the Ernst & Young/Swink, Inc. agreement, and did not qualify as a third-party beneficiary or fall within a contract exception under § 16-114-302(2), we must affirm the trial court’s ruling on this first point.

We next consider Swink, Jr.’s argument that the trial court erred in ruling Swink, Jr.’s misrepresentation claim is barred by the three-year statute of limitations. He contends that the statute of limitations commenced from the date he discovered or should have discovered Ernst & Young’s fraud or misrepresentation, but the complaint does not reflect that date. He asserts it is error for a trial court to grant a motion to dismiss because of a statute of limitations when facts not in the record must be developed.

Swink, Jr., is mistaken in stating the limitations statute began when he discovered (or should have discovered) Ernst & Young’s purported misrepresentation. Arkansas follows the rule that the limitations period in professional malpractice cases begins to run when the wrongful acts occur, not when they are discovered. See Ford’s Inc. v. Russell Brown & Co., 299 Ark. 426, 773 S.W.2d 90 (1989). This court has also held that, as to fraud or misrepresentation, mere ignorance of one’s rights does not prevent the running of the statute of limitations or laches, unless such ignorance is due to fraudulent concealment or misrepresentation on the part of those invoking the benefit of the statute. Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989). Here, Swink, Jr., did not allege any concealment on Ernst & Young’s part, and since the alleged misrepresentations of Ernst & Young occurred in its 1989 reports, the trial court correctly ruled the applicable three-year statute of limitations barred Swink, Jr.’s claim filed in 1994.

Finally, Swink, Jr., argues that, even if we uphold the trial court’s rulings on the foregoing points, the trial court still erred by dismissing Swink, Jr.’s complaint with prejudice. We agree.

This court has repeatedly held that, when a trial court dismisses a complaint for failure to state facts upon which relief can be granted under A.R.C.P. Rule 12(b)(6), the dismissal is without prejudice. Hubbard v. Shores Group, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993); Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993); McKinney v. City of El Dorado, 308 Ark. 284, 824 S.W.2d 826 (1992); Spires v. Members of the Election Comm’n, 302 Ark. 407, 790 S.W.2d 167 (1990); Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984). The plaintiffs then have the election either to plead further or to appeal. Id.

Ernst & Young suggests Swink, Jr., should have requested the trial court to remove the “with prejudice” language, since he could have easily done so when he had the trial court delete a sentence from its original order. Swink, Jr., on the other hand, contends the trial court’s dismissal order with prejudice precluded his right to plead further and left him with only his option to appeal. He further asserts no authority exists that required him to ask the trial court’s order be modified or corrected before deciding to appeal. Swink, Jr., is correct. We see no significant difference here from the situation in Hubbard, supra. In Hubbard, the trial court dismissed the plaintiff’s complaint with prejudice under Rule 12(b)(6). This court pointed out when a trial court takes any action under Rule 12, the trial court is to notify the attorneys of that action, and if appropriate the court will designate a certain number of days in which the party is to be given to plead further. Hubbard v. Shores Group, Inc., 313 Ark. at 504; see ARCP Rule 12(j). Like in Hubbard, the trial court did not offer Swink, Jr., the opportunity to plead further, therefore we modify the dismissal to one without prejudice and remand.

       Arthur Young and Co. originally entered into this contract, but later that firm merged with another company and became known as Ernst & Young.

       Swink, Jr., also alleged breach of fiduciary relationship, but abandoned that claim at the trial level.

       Swink, Jr., chose not to raise on appeal the lower court’s ruling on his negligence claim.

       We note Ernst & Young also argues Swink, Jr.’s contract claims sound primarily in tort and therefore are barred by the three-year statute of limitations. Apparently the trial court initially ruled to this effect but later deleted that ruling from its final order. Ernst & Young did not cross appeal on this point, and we choose not to consider this withdrawn ruling as yet another reason to affirm, especially since the abstract reflects the primary argument below focused on § 16-114-302 and the privity of contract issue.


author: Donald L. Corbin, Justice.

text:
    Callis L. CHILDS v. Jerry ADAMS
    94-598
    909 S.W.2d 641
    Supreme Court of Arkansas
    Opinion delivered November 13, 1995
    [Petition for rehearing denied December 18, 1995.)

      Brazil, Clawson, Adlong, Murphy & Osment, by: Charles E. Clawson, Jr., for appellant/cross-appellee.

      Graddy & Adkisson, P.A., by: William C. Adkisson, for appellee/cross-appellant.

      SpeciaI Justice Herman Hamilton joins Brown, J., not participating.

   Donald L. Corbin, Justice.

Appellant, Callis L. Childs, appeals the amended decree of the Faulkner County Chancery Court, filed March 16, 1994, granting specific performance of a contract for the sale of appellant’s residence to appellee, Jerry Adams. Appellee cross-appeals from that portion of the amended decree denying his request for attorney’s fees. Jurisdiction of this case is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3) and (a)(8).

We review chancery cases de novo. Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1994). However, in reviewing the chancellor’s findings, we will not reverse unless they are clearly erroneous or clearly against a preponderance of the evidence, and the burden is upon the appellant to show that the findings are erroneous. Id.; Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993); ARCP Rule 52(a).

I. Direct appeal A. Authority of the trial judge

Appellant first argues that the consent decree entered in Hunt v. State of Arkansas, Number PB-C-89-406 (E.D. Ark. November 7, 1991, as amended September 24, 1992) (“Consent Decree”), ended the elective term of office of Chancellor Lawrence E. Dawson of the 11th West Judicial District effective December 31, 1992, and, therefore, the Chief Justice of this court was without authority to subsequently assign him to hear this case upon the recusal of the trial judges of the 20th Judicial District. Appellant does not challenge the jurisdiction of the chancery court itself over this action. Appellant concedes he raises this issue for the first time on appeal, but characterizes it as one of subject matter jurisdiction that must be reviewed. We disagree.

Appellant’s challenge to Chancellor Dawson’s authority does not raise an issue of subject matter jurisdiction. Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992). In Simpson, the appellant argued for the first time on appeal that the chancellor and probate judge who tried that criminal case in the circuit court lacked subject matter jurisdiction to do so. This court ruled that the issue presented was not one of subject matter jurisdiction, and, accordingly, refused to consider the issue because it was not preserved for appeal. This court stated:

Subject matter jurisdiction, however, is determined from the pleadings, and once a proper charge is filed in circuit court, that court may exercise jurisdiction over that subject matter. . . . Moreover, jurisdiction is granted to a particular position, that is, to a particular court, and not to the person who fills it.. .. Here, the [circuit court] clearly had jurisdiction over the two rape charges and the issue raised by Simpson concerns the authority of the individual who filled that position. As was the case in Nation [v. State, 283 Ark. 250, 674 S.W.2d 939 (1984)], that issue relates to the authority of the sitting judge and not to the jurisdiction of the circuit court.

310 Ark. 493, 499, 837 S.W.2d 475, 478 (citations omitted). Accord Bradford v. Bradford, 49 Ark. App. 32, 894 S.W.2d 616 (1995) (holding the appellant’s objection to the authority of a circuit judge to hear his divorce case in chancery was waived for failure to raise it below).

The present case, arguably, is distinguishable from Simpson because appellant asserts that Chancellor Dawson was “not a judge at all” as a result of the Consent Decree. Yet, appellant has failed to abstract the facts necessary for us to assess the effect of the Consent Decree upon Chancellor Dawson’s judgeship, which determination is prerequisite to any consideration of appellant’s argument on its merits. Further, the portion of the record pertinent to this issue does not reveal the assignment of Chancellor Dawson was invalid. In our recent decision, Neal v. Wilson, 321 Ark. 70, 75, 900 S.W.2d 177, 179 (1995) (per curiam), we held that, where the record reflected the challenged assignment of the trial judge was valid, the assignment gave him jurisdiction to try the case, and stated:

It is the parties’ or trial court’s responsibility to apprise this court as to whether an assignment is necessary under Act 496. Once that assignment is made, that responsibility continues. Clearly, it is not this court’s task, on its own volition, to discover or monitor whether the circumstances have changed to warrant the termination of an assignment or reassignment.
On this record, appellant’s first assignment of error fails.

B. Attorney disqualification

Appellant next argues that the trial court erred in refusing to disqualify appellee’s attorneys, William C. Adkisson and Larry E. Graddy. Appellant filed a pretrial motion to disqualify, alleging that Adkisson was a business partner of Graddy, that Graddy had counseled with appellant regarding the contract for the sale of appellant’s residence, and that the resulting conflict of interest disqualified Adkisson. At the hearing on the motion to disqualify, appellant argued that Graddy’s conflict of interest also disqualified Graddy. We affirm the trial judge’s denial of the motion to disqualify.

The evidence introduced at the hearing revealed that, in May 1993, appellant presented appellee with a written offer to swap appellant’s residence for real property owned by appellee, plus cash. The swap offer was drafted by appellant, who is a practicing attorney, but was never accepted by appellee. Graddy’s purported conflict of interest arises from certain conversations between him and appellant regarding the proposed swap transaction. In June 1993, the sale contract that is the subject of this appeal was executed by the parties. The sale contract was drafted by Graddy as legal counsel for appellee.

As regards the proposed swap transaction, appellant testified that he drafted the swap offer after speaking with Graddy about the swap transaction at least twice, once by telephone and once at the county courthouse. Appellant testified that he had asked Graddy for drafting suggestions regarding the swap offer. Appellant testified that he did not send Graddy a copy of the swap offer, could not remember if he notified Graddy that the swap offer had been sent to appellee, and was charged no fee by Graddy. Appellant testified that he had questioned Graddy’s competence to handle a swap transaction, and that it was his understanding and intent that Graddy would handle the transaction for him. Graddy testified that appellant called him at least once about a contemplated swap of his residence, and that his recollection of that conversation was “that [appellant] was simply trying to be sure that a swap could take place and that the title could be cleared and that good — an insurance policy, without exceptions, could be given to both parties.” Graddy testified that he never considered appellant’s conversations with him to be a request for legal services. Graddy testified that, although he could not recall if appellant had initially disclosed that appellee was the other party to the proposed swap transaction, that disclosure was made in May 1993.

As regards the sale contract, appellant testified that he had not consulted with Graddy in any way, and that appellee had disclosed to him that Graddy would be preparing the sale contract. Graddy testified that he considered his representation to have been for appellee exclusively, and that he had disclosed to appellee his contact with appellant about the proposed swap transaction.

Graddy testified that he periodically responded to requests from appellant for advice about various legal matters relating to appellant’s clients. Graddy testified that he never billed appellant or was paid by him for these legal advices. Graddy characterized his relationship with appellant as friendship and testified that he had never represented appellant in any matter.

At the conclusion of the hearing, the trial court announced from the bench that the conversations between appellant and Graddy “have just been friendly conversations ... rather than any kind of a [sic] attorney-client relationship.” The trial court’s finding that no attorney-client relationship existed between Graddy and appellant is not clearly erroneous or against the preponderance of the evidence. Hence, appellant has failed to show Graddy had a conflict of interest that required his disqualification. Accordingly, we do not address appellant’s contention that the trial court erred in denying his motion to disqualify Adkisson on the theory that Graddy’s purported conflict of interest should have been imputed to Adkisson.

C. Contract formation

Appellant next argues that the trial court erred in ruling that the sale contract was a valid and binding offer and acceptance. The express terms of the sale contract required appellant, as the offeree, to sign and physically deliver the sale contract to appellee, as the offeror, prior to 12:00 noon on June 15, 1993. At trial, the parties offered conflicting testimony regarding the time of day that the signed sale contract was delivered to appellee on June 15, 1993. The trial court made no finding of fact on this issue and held it was unnecessary “to resolve the disparity in this testimony due to its finding that the parties by their actions waived contractual provision, resulting in an enforceable agreement of sale.”

An offer which specifies a period of time for its duration, such as appellee’s offer, terminates upon the lapse of the specified time. Farmers Ins. Co. v. Hall, 263 Ark. 734, 567 S.W.2d 296 (1978); Burnett v. Holiday Inns of America, 239 Ark. 642, 391 S.W.2d 27 (1965). A terminated offer cannot later be accepted. McClure Ins. Agency v. Hudson, 238 Ark. 5, 377 S.W.2d 814 (1964) (offer terminated by offeree’s express rejection). Substantial authority exists for the proposition that a late acceptance, in reality, constitutes a counteroffer that must in turn be accepted to form a contract. E.g., Houston Dairy, Inc. v. John Hancock Mut. Life Ins. Co., 643 F.2d 1185 (5th Cir. 1981); 2 Richard A. Lord, Williston on Contracts §§ 6.55 n. 2 & 6.56 (4th ed. 1991); I. E. Allan Farnsworth, Farnsworth on Contracts § 3.19, at pp. 256-57, & n. 16 (1990); Restatement (Second) of Contracts §§ 41 & 70 (1981). At trial, appellant testified that he knew the deadline for accepting the offer was past when he signed the contract. On these facts, there seems to be no reason to give appellant’s late acceptance any effect other than that of a counteroffer. 1 Joseph M. Perillo, Corbin on Contracts § 3.20 (rev. ed. 1993).

Appellant argues that, even assuming his late acceptance constituted a counteroffer, no contract was formed because appellee did not validly accept the counteroffer. We disagree. A party’s manifestation of assent to a contract is judged objectively, Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991), and may be proved by circumstantial evidence. Steed v. Busby, 268 Ark. 1, 593 S.W.2d 34 (1980). A party’s manifestation of assent to a contract may be made wholly by spoken words or by conduct. ERC Mortgage Group, Inc. v. Luper, 32 Ark. App. 19, 795 S.W.2d 362 (1990) (citing Restatement (Second) of Contracts § 19 (1981)).

At trial, both parties testified that, on June 15, 1993, appellee went to appellant’s office to pick up the fully executed contract. Appellee testified that, thereafter, but prior to his receipt on August 9, 1993 of a letter from appellant purporting to revoke his acceptance of the original offer, appellee brought his contractor into the residence several times to discuss proposed renovations, received a key to the residence from appellant for access during his absence one weekend, purchased several thousand dollars’ worth of additional household furnishings, and sold stock for the purpose of funding the purchase price due upon the scheduled closing date, August 30, 1993. The facts of appellee’s weekend visit to the residence during appellant’s absence and the visits to the residence with his contractor were corroborated by the testimonies of appellant’s neighbor, Marilyn Larson, and appellee’s contractor, Kenneth Hineline, respectively. Appellant testified that he gave appellee the impression that the sale would be consummated.

Appellee’s conduct manifested his unequivocal acceptance of appellant’s counteroffer, thereby forming a valid contract, even assuming no timely acceptance of the original offer was accomplished. Without approving the trial court’s reasoning, we conclude that its ruling that a valid contract was formed is not clearly erroneous or against the preponderance of the evidence.

D. Balancing of the equities

Appellant next argues the trial court erred in granting specific performance because the equities favored appellant inasmuch as enforcement of the sale contract would cause him to lose his elected office as Justice of the Peace due to his failure to find other adequate housing within his district, and because he would be deprived of his home of many years. The argument is meritless. The first inequity claimed, the loss of appellant’s elected office, is a moot issue because, as appellant acknowledges in his reply brief, he was not returned to his elected office in the November 1994 election. The second inequity claimed, the loss of appellant’s residence, is completely unpersuasive inasmuch as the sale contract was freely entered into by appellant.

E. Historic preservation

Appellant next argues that the trial court erred in granting specific performance because appellee’s planned renovations would destroy the architectural integrity of appellant’s residence, thereby violating this state’s public policy to engage in historic preservation. This argument is meritless. First, as appellant’s counsel acknowledged in oral argument, appellant’s residence is not listed with either the federal or state registers of historic places. Second, even if the residence were listed, this state’s public policy with respect to historic preservation does not support appellant’s argument. We refer to Arkansas Code Annotated § 13-7-109 (Supp. 1993), which creates the State Register of Historic Places, and clearly provides: “Listing a privately owned property in the State Register of Historic Places shall in no way violate or abridge the lawful owner’s right to use, modify, or dispose of said property.” Section 13-7-109(d).

F. Restitution

Appellant’s final argument is that the trial court erred in denying him restitution for his expenditures for improvements to the sidewalk and porch in the amount of $8,645.00 in October 1993, and for several repairs totaling $1,036.17 during the period from August 9, 1993 to December 15, 1993. Ruling from the bench, the trial court disallowed “damages,” and, in response to appellant’s counsel’s request for clarification regarding the $8,645.00 expenditure, stated that, although the improvement may have enhanced the property’s value, reimbursement would not be ordered because it was “something that could have waited” that was undertaken by appellant at his own risk during the pendency of the present action. The order appealed summarily denies damages for either party. We affirm that ruling.

Appellant was not entitled to restitution for his expenditures. The restitutionary goal, we have stated, ‘“is to prevent unjust enrichment of the defendant by making him give up what he wrongfully obtained from the plaintiff.’” Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 602, 864 S.W.2d 817, 823 (1993) (quoting Dan B. Dobbs, Law of Remedies, § 1.1 (2d ed. 1993)). Accord Brookfield v. Rock Island Improvement Co., 205 Ark. 573, 169 S.W.2d 662 (1943) (citing Restatement of Restitution § 1 (1937)). The circumstances of this case are such that, although appellee is benefitted by appellant’s expenditures, it is not unjust for him to retain them.

First, appellant, as the breaching party, seeks reimbursement for expenditures which, by his own testimony, were made without appellee’s consent. Second, the nature of these expenditures do not support appellant’s claim to restitution. With respect to the property improvement, appellant runs afoul of the principle that one who officiously confers a benefit upon another is not entitled to restitution therefor. Restatement of Restitution § 2 (1937); see Brookfield, 205 Ark. 573, 169 S.W.2d 662 (payment of taxes in good faith by one claiming to be the owner of land and without knowledge of any claim to the land was not officious in making the payment and was entitled to restitution therefor). Similarly, appellant was not contractually obligated to provide the property repairs incurred before the scheduled closing date inasmuch as the sale contract only required conveyance of the residence in “as is” condition. As to the repairs incurred after the scheduled closing date, we observe that appellant’s expenditures would have been avoided but for his wrongful refusal to perform the sale contract.

Appellant also argues that his request for reimbursement should have been granted under the common-law principle that money payments or “equitable compensation” to the contracting parties may be decreed in a case granting specific performance of a contract for the conveyance of real property. Miller v. Estate of Dawson, 14 Ark. App. 167, 686 S.W.2d 443 (1985). Equitable compensation payments are intended to equalize losses between the parties occasioned by the delay in performance of the contract. Loveless v. Diehl, 236 Ark. 129, 364 S.W.2d 317 (1963). This court has stated:

The two charges are equitably offsetting and should go together. The sellers are charged with the rental value because they have had the use of the buyers’ land, and the buyers are charged with interest because they have had the use of the sellers’ money.... To make either charge without the other is evidently unwarranted, for it gives the favored party the use of both the land and the money.

Id. at 134, 364 S.W.2d at 322. Even assuming the principle of equitable compensation is applicable to the expenditures for which appellant seeks reimbursement, Loveless indicates it would have been error for the trial court to have granted appellant’s request for reimbursement under this equitable principle, absent a determination and award of appropriate offsetting charges for appellee.

II. Cross-appeal Attorney’s fees

On cross-appeal, appellee assigns as error the trial court’s denial of his request for attorney’s fees under Arkansas Code Annotated § 16-22-308 (Supp. 1995), which, in pertinent part, authorizes attorney’s fees in civil actions “for . . . breach of contract.” Relying upon the doctrine of election of remedies, the trial court ruled that this action “is not a suit to recover for breach of contract, but is a suit asking the Court to perform it,” and, therefore, section 16-22-308 was not applicable. We disagree.

The election doctrine operates to preclude the complainant who simultaneously seeks affirming and disaffirming remedies from receiving an award that “over-compensates and over-restores” him for his injury by permitting recovery on both theories. Smith, 314 Ark. 591, 864 S.W.2d 817; Thomas Auto Co., Inc. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989). Appellee did not offend the election doctrine because he sought only the affirmance remedy of specific performance for his injury. Further, appellee’s fee request was collateral or supplemental to the underlying litigation on the contract. Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995). As such, the fee request was not an ingredient of and did not require consideration with the underlying litigation. Id. Thus, the policy concern supporting the election doctrine — to avoid duplicative remedies — was not a valid consideration with respect to the fee request. We conclude the trial court’s interpretation of section 16-22-308 was erroneous as a matter of law.

The instant action is covered by section 16-22-308. Our ruling is controlled by Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995), in which we affirmed an award of attorney’s fees under section 16-22-308 in an equitable action by lessors seeking cancellation of lease agreements due to lessees’ alleged abandonment and breach of implied lease covenants. See also Griffin v. First National Bank, 318 Ark. 848, 888 S.W.2d 306 (1994) (stating, in dicta, that the trial court correctly found an action to enforce a guaranty agreement was covered by section 16-22-308). That portion of the appealed order denying attorney’s fees to appellee is reversed and the case is remanded to the trial court for reconsideration of that request consistent with this opinion.

The trial court’s judgment is affirmed on direct appeal and reversed and remanded on cross-appeal.

Special Justice Herman L. Hamilton, Jr. joins in this opinion.

Brown, J., not participating.

       This analysis mirrors the well-established principle of contract law that an acceptance varying the terms of the offer is a rejection of the offer and is a counteroffer that must be accepted to constitute a contract. Younts v. City of North Little Rock, 294 Ark. 501, 744 S.W.2d 715 (1988); Byford v. Gates Bros. Lumber Co., 216 Ark. 400, 225 S.W.2d 929 (1950).


text:
    D. HAWKINS, INC. v. Lance SCHUMACHER and Evelyn Schumacher, His Wife
    94-773
    909 S.W.2d 640
    Supreme Court of Arkansas
    Opinion delivered November 13, 1995

      Wood Law Firm, by: M. Douglas Wood, for appellant.
    No response.
   Donald L. Corbin, Justice.

Appellant, D. Hawkins, Incorporated, appeals the amended order of the Pulaski County Circuit Court, entered March 22, 1994, ordering it, as a resident of this state and judgment debtor, to comply with Arkansas Code Annotated § 16-66-221 (Supp. 1993) by filing a properly verified schedule of property with the circuit court. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(3) and (d)(1).

Appellant raises three arguments for reversal: first, that a corporation is not a “resident” within the meaning of section 16-66-221, second, that section 16-66-221 is a penal statute that must be strictly construed, and, third, that the interrogatories of appellees, Lance and Evelyn Schumacher, are overly broad and request confidential information. Pursuant to Ark. Sup. Ct. R. 4-2(a)(6), we hold that appellant’s abstract in this one-brief case is flagrantly deficient and we summarily affirm the trial court’s judgment for noncompliance with the rule. Ark. Sup. Ct. R. 4-2(b)(2).

Appellant’s complete abstract consists of a recitation of section 16-66-221, in its entirety, together with the following three paragraphs, which we quote from the abstract:

A. “The Court finds that, although the Defendant is a corporation, the provisions of A.C.A. § 16-66-221 are applicable against a domestic corporation. Therefore, the Defendant is ordered to comply with A.C.A. § 16-66-221 by filing a schedule of property verified by affidavit with the Court within fifteen (15) days of entry of this order.” (Amended Order dated March 22, 1994 — page 164.)
B. “The Court finds that there is no privilege of confidentiality existing between the Defendant and its clients protecting the confidentiality of financial records of persons not a party to this litigation and therefore orders the Defendant to make available all buyers and sellers settlement statements for property closings conducted by the Defendant, D. Hawkins, Inc., for a period of one year prior to the judgment date, of October 20, 1993 for inspection and/or copying by the Plaintiff at the office of the Defendant during normal business hours.” (Amended Order dated March 22, 1994 — page 165).
C. A transcript of hearing conducted on the 18th day of February, 1994 (pages 181 through 190).

Our rules require that the abstract contain only the information in the transcript that is “necessary to an understanding of all questions presented to the Court for decision.” Carmical v. City of Beebe, 316 Ark. 208, 209, 871 S.W.2d 386, 387 (1994) (quoting Rule 4-2(a)(6)). A summary of the pleadings and judgment appealed are the bare essentials of an abstract. Bohannon v. Arkansas State Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995). Appellant has failed to provide this essential information. Nor can we determine from a reading of the brief, which basically abridges a transcript of 191 pages into two paragraphs, the material parts of the transcript necessary for an understanding of the questions presented. Carmical, 316 Ark. 208, 871 S.W.2d 386. On this record, we cannot discern whether appellant preserved its arguments for review by first raising them before the trial court, see McAdams v. Automotive Rentals, Inc., 319 Ark. 254, 891 S.W.2d 52 (1995), and we cannot locate the factors that led to the trial court’s judgment. Sturch v. Sturch, 316 Ark. 53, 870 S.W.2d 720 (1994). In summary, the abstract does not contain all the information necessary to our resolution of the issues presented. Carmical, 316 Ark. 208, 871 S.W.2d 386.

The trial court’s judgment is affirmed.


author: Robert L. Brown, Justice. Jesse L. Kearney, Special Associate Justice,

text:
    ARKANSAS DEPARTMENT OF HEALTH, Sandra B. Nichols, M.D., Director, and Henry C. Robinson, Jr., Director and State Registrar, Division of Vital Records v. WESTARK CHRISTIAN ACTION COUNCIL, a Nonprofit Corporation
    94-1264
    910 S.W.2d 199
    Supreme Court of Arkansas
    Opinion delivered November 13, 1995

      George A. Harper, Gen. Counsel, Arkansas Department of Health, for appellants.

      R. Gunner DeLay, for appellee.

      Bettina E. Brownstein, Eve C. Gartner, and Dara Klassel, for William Harrison, M.D., Planned Parenthood of Eastern Oklahoma and Western Arkansas, Inc., Planned Parenthood of Greater Arkansas, Inc., Curtis E. Stover, M.D., and Little Rock Family Planning Services, P.A., as amici curiae in support of appellants.

      Simons & Assoc., by: L. Vance Marker, attorney, and Penny Shane, Emily Granrud, and Ellen Nachtigall, of counsel, for the American College of Obstetricians and Gynecologists, the American Medical Women’s Ass’n, the American Public Health Ass’n, the Ass’n for Vital Records and Health Statistics, the Committee on Privacy and Confidentiality of the American Statistical Ass’ii, and the Society of General Internal Medicine, as amici curiae in support of appellants.

      J. Fred Hart, Jr., and Charles Suphan, for Prolife Arkansas, as amicus curiae in support of appellees.
   Robert L. Brown, Justice.

The issue in this appeal is whether certain reports of aborted pregnancies are either “medical records” or “vital records” and, thus, exempt from the requirements of the Arkansas Freedom of Information Act (FOIA), which is codified at Ark. Code Ann. § 25-19-101 to 107 (Repl. 1992, Supp. 1993). Appellants Arkansas Department of Health; Sandra B. Nichols, Director; and Henry C. Robinson, Director and State Registrar of the Division of Vital Records (jointly referred to as Health Department) appeal from a judgment of the circuit court ordering the release of these reports to appellee Westark Christian Action Council. We conclude that the court erred in finding that the reports were not vital records and exempt from the FOIA. We reverse and remand.

On July 1, 1994, Dale W. Morfey, Chairman and President of Westark, requested copies of aborted pregnancy reports and files under the FOIA for Washington, Crawford, and Sebastian Counties from 1980 to present or, alternatively, access to the files containing this information. The precise request was for copies of Form ACHS-01 for these counties for that time frame, which is a form entitled a “Report of Induced Termination of Pregnancy.” Form ACHS-01 is filed with the Health Department’s Center for Health Statistics “for statistical use only.” The data required in the form is the facility name and address where the induced termination occurs and the following information about the patient: age; marital status; date of pregnancy termination; address by city, county, state and zip code; residence inside the city limits; race; education level; previous pregnancies; date of last menses; and type of procedure used in the termination.

On July 6, 1994, the General Counsel for the Health Department responded and stated that the Division of Vital Records had interpreted Form ACHS-01 to be a “vital record” and not subject to release under the Vital Statistics Act. On July 28, 1994, Westark filed suit under the FOIA and alleged that the reports requested were not “vital records” but statistical reports and that their release would constitute no breach of confidentiality. Westark contended that the Health Department had violated the FOIA. The Health Department answered and denied the allegations in the complaint. It filed a Trial Brief, asserting that Form ACHS01 was not only a “vital record” under the Vital Statistics Act, codified at Ark. Code Ann. § 20-18-101 to 705 (Repl. 1991), but also a “medical record” and exempt under the FOIA at Ark. Code Ann. § 25-19-105(b)(2) (Repl. 1992).

On August 18, 1994, following a hearing on the matter, the circuit court found that Form ACHS-01 was neither a “vital record” nor a “medical report.” The court ordered disclosure of the reports requested by Westark pursuant to the FOIA but stayed its order pending appeal.

The dual arguments advanced by the Health Department on appeal are that Form ACHS-01 is both a “medical record” and a “vital record” and, thus, exempt from the FOIA under either exemption. We begin by referencing the policy considerations surrounding the FOIA and our rules of construction regarding it. The FOIA opens “all public records” for public inspection. Ark. Code Ann. § 25-19-105(a) (Supp. 1993). The term “public records” is defined to include all documents required by law to be kept and which record the performance or lack of performance of official functions. Ark. Code Ann. § 25-19-103(1) (Repl. 1992). We liberally construe the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner. Sebastian County Chap, of the Am. Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993); Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992). In conjunction with this rule of construction, we narrowly construe exceptions to the FOIA to counterbalance the self-protective instincts of the government bureaucracy. Byrne v. Eagle, 319 Ark. 587, 892 S.W.2d 487 (1995); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). A statutory provision for nondisclosure must be specific. Ark. Code Ann. § 25-19-105(a) (Supp. 1993); Troutt Bros. v. Emison, 311 Ark. 27, 841 S.W.2d 604 (1992). Less than clear or ambiguous exemptions will be interpreted in a manner favoring disclosure. Troutt Bros. v. Emison, supra; Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).

Bearing these principles in mind, we address the issue of whether Form ACHS-01 is a “vital record” and, if so, whether it is exempt from the FOIA. The Vital Statistics Act, as it existed in 1994, provided these definitions which are pertinent to this appeal:

(1) “Vital statistics” means the data derived from certificates and reports of birth, death, fetal death, induced termination of pregnancy, marriage, divorce, or annulment and related reports but does not mean or include the unintentional destruction of a fetus in performance of the surgical procedure dilation and curettage;
(3) “Vital records” means certificates or reports of birth, death, marriage, divorce, or annulment and the data related thereto;
(7) “Fetal death” means death prior to the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy. The death is indicated by the fact that after the expulsion or extraction, the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles;
(A) “Spontaneous fetal death” means the expulsion or extraction of a product of human conception resulting in other than a live birth and which is not an induced termination of pregnancy, sometimes referred to as stillbirth and miscarriage;
(B) “Induced termination of pregnancy” means the intentional termination of pregnancy with the intention other than to produce a live-born infant or to remove a dead fetus;

Ark. Code Ann. § 20-18-102(1), (3), (7) (Repl. 1991).

The Act, in 1994, further prohibited disclosure of “vital records”:

(a) To protect the integrity of vital records, to insure their proper use, and to insure the efficient and proper administration of the system of vital statistics, it shall be unlawful for any person to permit inspection of or to disclose information contained in vital records or to copy or issue a copy of all or part of any record except as authorized by this chapter and by regulation or by order of a court of competent jurisdiction. The regulations shall provide for adequate standards of security and confidentiality of vital records.
(b) The board may authorize by regulation the disclosure of information contained in vital records for research purposes.
(c) The state registrar shall not permit searching of the files and records of the division by any person other than by the authorized employees of the division and shall not furnish lists of births or deaths for commercial purposes.

Ark. Code Ann. § 20-18-304 (Repl. 1991).

The Act, thus, provides under § 20-18-102(7) that induced terminations of pregnancies are embraced within the definition of “fetal death.” The Act at § 20-18-102(3) also provides that “vital records” are reports of “death” and “the data related thereto.” Westark argues, however, that reports on fetal death are not specifically listed under § 20-18-102(3) as vital records while fetal death is mentioned in § 20-18-102(1) and § 20-18-102(7). This, according to Westark’s theory, substantiates a legislative intent to exclude Form ACHS-01 reports as “vital reports.” That contention, however, ignores the fact that a broader, more encompassing category is referenced under § 20-18-102(3) — death — which subsumes the subcategory of “fetal death.” We have addressed comparable arguments in other contexts. For example, it has been urged upon us on occasion that the term “robbery” does not include “aggravated robbery” for purposes of capital felony murder. We have dismissed that argument as having no merit. See Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988).

On an analogous point, Westark urges that Form ACHS-01 is a form for collecting data and statistics and as such is not a vital report. We give this argument little credence. The definition of “vital records” set forth at § 20-18-102(3) includes reports on death and the data related thereto. Under the clear terms of the statute, as already stated, “induced termination of pregnancy” is a subset of “fetal death” and data relating to death reports constitutes a “vital record.” We conclude that Form ACHS01 provides that data and easily qualifies as a vital record under the Vital Statistics Act.

We are mindful of the fact that the Vital Statistics Act does provide that reports on fetal deaths involving more than 20 weeks of gestation are made to the Division of Vital Records whereas reports on fetal deaths resulting from induced terminations of pregnancies are filed with the Division of Health Statistics. Ark. Code Ann. § 20-18-603 (Repl. 1991). We also are aware that under § 20-18-603 these statistical reports are not made part of the permanent records of the system of vital statistics. But contrary to the assertion by Westark, we do not view § 20-18-603 as undermining our conclusion that Form ACHS-01 is a vital record. This section merely describes where the report is to be filed and its lack of permanency. Regardless of its eventual location, Form ACHS-01 provides data relating to a category of death and is included within the definition of “vital records.”

Moreover, the Vital Statistics Act evinces a clear and specific policy in favor of the confidentiality of the Form ACHS01 reports. That policy is evidenced by the general provision which expressly renders disclosure of “vital records” unlawful under § 20-18-304. It is further evidenced by § 20-18-603(b)(3), which requires that reports of fetal deaths “not include the name or other personal identification of the individual having an induced termination of pregnancy.” To underscore this policy even further, the General Assembly enacted Act 1254 of 1995, which amends the Vital Statistics Act to include a category of statistics entitled “vital reports.” Under the new Act, “vital reports” are defined as “reports of fetal death and induced terminations of pregnancy and data related thereto,” and disclosure of “vital reports” is expressly proscribed. Act 1254 also defines “fetal death” and “induced termination of pregnancy” separately. We do not give retroactive effect to this legislative enactment. By the same token, the most basic rule of statutory construction is to give effect to the intent of the General Assembly. Graham v. Forrest City Housing Auth., 304 Ark. 632, 803 S.W.2d 923 (1991). While we view the Vital Statistics Act, as it existed in 1994, to be clear and unambiguous on the issue of whether Form ACHS-01 constituted a vital record and was nondisclosable, the enactment of Act 1254 confirms the manifest intent of the General Assembly to render unlawful the release of this data. See Nathaniel v. Forrest City School Dist. No. 7, 300 Ark. 513, 780 S.W.2d 539 (1989).

Finally, though the circuit court did couch its order in terms of “finding” that Form ACHS-01 was not a “vital record,” we do not consider that to be a finding of fact which would bring into play the clearly erroneous standard of review. See Ark. R. Civ. P. 52(a). This case presents issues of statutory construction — what is included within the term “vital records” and whether the data is subject to disclosure — and it is for this court to decide what a statute means. See Peters v. State, 321 Ark. 276, 902 S.W.2d 757 (1995); Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993); Bryant v. Mars, supra.

Because we decide that Form ACHS-01 is a vital record within the confines of the Vital Statistics Act and exempt from the FOIA, we need not address whether it is also a “medical record.” We reverse the order of the circuit court and remand the case for purposes of entry of an order consistent with this opinion.

Reversed and remanded.

Newbern, J., not participating.

Special Justice Jesse L. Kearney concurs.

Jesse L. Kearney, Special Associate Justice,

concurring.

This case raises the issue whether certain information, obtained by the Vital Records Division of the Department of Health, by means of mandatory reports, pursuant to Ark. Code Ann. § 20-18-302, from doctors, hospitals and other health care providers, is open to inspection by the public at large pursuant to the Freedom of Information Act, Ark. Code Ann. § 25-19-101, et seq.

The Freedom of Information Act establishes the broad policy that all government records are open to the public. This legislation creates a presumption that as to any information maintained by any government officer, agent or institution, the public, under certain procedural guidelines, is entitled to access to such information. However, there are certain exceptions to the broad policy of open access, and the presumption of open access can be rebutted by showing that the information sought fits into one of those exceptions, Ark. Code Ann. § 25-19-105(b).

These exceptions can be grouped into two broad categories:

[a] those items of information specifically exempt from access by the language of the FOIA itself, [Ark. Code Ann. § 25-19-105 (b)( 1)—(9)], and

[b] those items of information which are recognizable under the FOIA as exempt from open access by the terms of other statutes [Ark. Code Ann. § 25-19-105(b)(10)]; for instance 20-18-304, et seq. The first category, those exempt by the language of the FOIA, are narrowly construed in order to counterbalance the tendency of bureaucracies for secrecy, and to give liberal interpretation to the broad policy for open access; the exemptions specifically set out in the FOIA are as follows:

Ark. Code Ann. § 25-19-105 . . .

(b) It is the specific intent of this section that the following records shall not be deemed to be made open to the public by the provisions of this chapter:

(1) State income tax returns;
(2) Medical, scholastic, and adoption records;
(3) The site files and records maintained by the Arkansas Historic Preservation Program and the Arkansas Archeological Survey;
(4) Grand jury minutes;
(5) Unpublished drafts of judicial or quasi-judicial opinions and decisions;
(6) Undisclosed investigations by law enforcement agencies of suspected criminal activity;
(7) Unpublished memoranda, working papers, and correspondence of the Governor, legislators, Supreme Court Justices, and the Attorney General;
(8) Documents which are protected from disclosure by order or rule of court;
(9) Files which, if disclosed, would give advantage to competitors or bidders.”

If the information sought by Plaintiffs fits into one of these exemptions, then it seems that no further inquiry is necessary, as the very act under which the Plaintiff brings this action, forecloses the relief sought. The Defendants/Appellants in this action, Arkansas Dept, of Health, et al., assert that the information sought is exempt as fitting into item (b)(2) in the category above, as well as fitting in the second broad category.

The second category of exemptions, those items of information recognized by the FOIA, as exempt from open access by the language of other statutes, must be strictly construed, and must be specific. Ark. Code Ann. § 25-19-105(b)(10) (Supp. 1993); Troutt Bros. vs. Emison, 311 Ark. 27, 841 S .W. 2d 604 ( 1992 ). Less than clear, or ambiguous exemptions will be interpreted in a manner favoring disclosure. Troutt Bros., supra; Young v. Rice, 308 Ark. 593, 826 S.W. 2d 252 (1992).

I believe resort to a determination if the information sought fits this category of exemptions should occur only if such information does not fit into the former category.

Following this approach, and applying it to the fact and law presented in this case, we should decide if the information sought by Plaintiffs is exempt from disclosure.

On July 1, 1994, Dale W. Morfey, Chairman and President of Westark, requested copies of Aborted Pregnancy reports and files under the FOIA for Washington, Crawford, and Sebastian Counties from 1980 to present or, alternatively, access to the files containing this information. The precise request was for copies of Form ACHS-01 for these counties for that time frame, which is a form entitled a “Report of Induced Termination of Pregnancy.” Completion of Form ACHS-01 is mandatory under Ark. Code Ann. § 20-18-302 and 303, and is filed with the Health Department’s Center for Health Statistics “for statistical use only.” The data required in the form is the facility name, address where the induced termination occurs and the following information about the patient: age; marital status; date of pregnancy termination; address by city, county, state and zip code; residence inside the city limits; race; education level; previous pregnancies; date of last menses; and type of procedure used in the termination.

All the information requested is of the nature that would be available to the clinic, hospital or informer, only as a medical provider, gathered in the course of and for purposes of treatment, diagnosis, examination of a patient.

On July 6, 1994, the General Counsel for the Health Department responded and stated that the Division of Vital Records had interpreted Form ACHS-01 to be “vital records” and prohibited from release under the terms of the Vital Statistics Act. On July 28, 1994, Westark filed suit under the FOIA and alleged that the reports requested were not “vital records” but statistical reports and that their release would constitute no breach of confidentiality. Westark contended that the Health Department had violated the FOIA. The Health Department answered and denied the allegations in the complaint. It filed a Trial Brief, asserting that Form ACHS-01 was not only a “vital record” under the Vital Statistics Act, codified at Ark. Code Ann. § 20-18-101 to 705 (Repl. 1991), but also a “medical record” and exempt under the FOIA at Ark. Code Ann. § 25-19-105(b)(2) (Repl. 1992).

On August 18, 1994, following a hearing on the matter, the circuit court found that Form ACHS-01 was neither a “vital record” nor a “medical report.” The court ordered disclosure of the reports requested by Westark pursuant to the FOIA.

The dual arguments advanced by the Health Department on appeal are that Form ACHS-01 is both a “medical record” as referred to in the FOIA, and thus not subject to disclosure under the act, and a “vital record” as defined in the Vital Statistics Act, prohibited from disclosure under the Vital Statistics Act.

As stated earlier, if the ACHS-01 is a medical record as asserted by the Defendant, then we need not look further for a resolution to this appeal.

The FOIA makes medical records exempt from public access, but does not define a medical record. Ark. Code Ann. § 25-19-105(b)(2). To resolve the first step analysis of the existence of an exemption to disclosure, we must, therefore, resort to a definition found in other parts of the State’s law, or ourselves fashion a definition of a medical record.

In the Arkansas Rules of Evidence we find that this court, in adopting or passing the uniform rules, has previously defined the term “medical record” as follows: “a medical record is any writing, document, or electronically stored information pertaining to, or, created as a result of, treatment, diagnosis or examination of a patient.” A.R.E. Rule 503(a)(5).

In that same evidence rule, a patient is defined as “a person who consults, or is examined, or is interviewed by a physician...” A.R.E. Rule 503(a)(1); a physician is defined as “a person authorized to practice medicine in any state or nation, or reasonably believed by the patient to be so.” A.R.E. Rule 503(a)(2).

The information contained in Form ACHS-01 is transmitted to the Department of Health by a physician (or his clinic or hospital), is a writing, and is information pertaining to and is created as a result of treatment, diagnosis or examination of a patient. A.R.E. Rule 503(a)(5). It seems clear, therefore, that such information is a medical record, regardless of its intended use, and regardless of the fact the information is compiled in a certain fashion for use by the Department. Such information is available because the person providing the information acted as the physician for the person who is the subject of the information.

I would therefore find that the ACHS-Ol is a medical record, and is therefore exempt from disclosure by the language of the FOIA itself. Ark. Code Ann. § 25-19-105(b)(2).

Insofar as the majority opinion finds that the document sought by the Plaintiffs is also a Vital Record under the provisions of the Vital Records Act, and therefore exempt under that act, I concur. Therefore, even if the court did not determine whether the ACHS-01 is a medical record, the document should not be disclosed, because disclosure is prohibited under the Vital Statistics Act. Ark. Code Ann. § 20-18-101 to 705 (Repl. 1991).