author: Per Curiam. John I. Purtle, Justice,

text:
    Don VENHAUS, Pulaski County Judge, Pulaski County, Arkansas v. PULASKI COUNTY QUORUM COURT, and Gary ADAMS, et al.
    86-182
    729 S.W.2d 13
    Supreme Court of Arkansas
    Opinion delivered May 26, 1987

      Ivester, Henry, Skinner & Camp, by: Stephen L. Curry, for appellant.
    No response by appellee.
   Per Curiam.

Petitioners, Don Venhaus, Pulaski County Judge, and Pulaski County filed this motion seeking clarification of the time schedule they are to follow for lodging the transcript.

A claim was rendered against Pulaski County to award that county’s deputy sheriffs overtime pay. Venhaus filed a notice of appeal from that judgment and the trial court entered an order on July 24, 1986, dismissing his appeal on the basis that the quorum court was the only proper party to appeal. In an opinion handed down March 30,1987, this court reversed the trial court’s order and reinstated the appeal. Venhaus v. Pulaski Quorum Court, 291 Ark. 558, 726 S.W.2d 668 (1987). In that opinion, however, we did not address the question of the allowable time for purposes of preparing a transcript. Rule 5 of the Rules of Appellate Procedure provides that the record shall be filed within 90 days from the filing of the first notice of appeal, unless an extension of time is granted. Such an extension is not to exceed seven months from the date of the entry of the judgment. Venhaus asks that his notice of appeal be considered as first filed on March 30, 1987, the date of this court’s opinion reinstating the appeal, giving him a maximum of seven months from that date to file the record. We agree with this approach.

Venhaus’s appeal to this court of the trial court’s dismissal of his original appeal is the type of postjudgment motion contemplated by Rules 4 and 5 of the Rules of Appellate Procedure. In Pentron Corp. et al v. Delta Steel & Const. Co., 286 Ark. 91, 689 S.W.2d 539 (1985) this court stated:

Rule 4 and Rule 5 are meant to operate successively. That is, a final disposition of the case in the trial court is reached before the notice of appeal must be filed under Rule 4. Rule 5 must then be observed in the preparation of the record and its filing with the clerk of the appellate court. That process should logically date from the notice of appeal, not from the entry of a judgment perhaps some months earlier. Even more importantly, until a motion for a new trial is acted upon, it cannot be known which party will be the appellant, for by Rule 2(a)(3) an order either granting or denying a new trial is appealable. It is manifestly impractical to put the burden of acting within seven months upon a party whose identity may not yet have been determined.

Applying this language to the case at bar, when the trial court dismissed the original appeal and Venhaus succeeded in having that appeal reinstated, that was a final disposition of the case in the trial court. The record can now be ordered, with time calculated from the date of the reinstatement, not the entry of the original judgment. To do otherwise would be “manifestly impractical,” since it would place the burden of acting within seven months upon a party whose right to appeal the judgment had not been established.

Therefore, Venhaus has 90 days from this court’s decision on March 30, 1987, to file the record on appeal.

Motion granted.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. This is but another dilatory tactic on the part of the individual appellant. All of the other defendants in the original action have accepted the decree of the trial court and do not want to incur the additional costs of appeal which will ultimately be paid by the taxpayers of Pulaski County. Apparently the appellant feels that his pride is at stake. If it is, I am sorry, but the taxpayers are under no obligation to pay whatever it takes to soothe his feelings.

Judgment in favor of the deputy sheriffs, the plaintiffs in the original action, was entered by the trial court on April 15,1986. The appellant called a special meeting of the quorum court for May 13, 1986; at this meeting the quorum court voted unanimously not to appeal the judgment. Nevertheless, the appellant filed a notice of appeal on May 15, 1986, the last day possible to file a timely appeal. The designation of the record on appeal included “all pleadings, proceedings, exhibits, evidence and documents introduced in evidence at trial or hearing before this Court. . ..” The appellant filed a motion for a stay pending the appeal on the same day that the notice of appeal was filed.

At the next regular meeting of the quorum court, on June 24, 1986, the court appropriated money to pay the judgment and enacted an ordinance which prohibited the county judge (the present lone appellant) from spending county funds on the prosecution of an appeal. (The underlying judgment was in favor of the deputy sheriffs who had been required to work overtime.) The appellant vetoed the ordinance and this veto was overridden on June 22, 1986.

The trial court entered another order on July 24, 1986, wherein it dismissed the petition for a stay, held that Pulaski County was the real party in interest, and dismissed the appeal. A second notice of appeal was filed by the appellant on August 6, 1986, in which he claimed to be acting in behalf of all of the defendants in the original action, even though he was fully aware that he was the only one who desired to appeal. This second notice of appeal was from the interlocutory order dated August 13, 1985, in which the chancellor found that the county was obligated to pay the overtime wages, and from the final order and judgment dated April 15, 1986. The court entered yet another order on August 6,1986, staying the order of July 24, 1986, and ordering the appellant to process the payment of the judgment.

On August 13, 1986, the trial court denied the appellant’s motion for an extension of time to file the record on appeal. The court found that he had not deposited any funds for the payment of the transcript and that it would cost the county $8,000 to $ 10,000 to prepare the transcript which would never be used. The motion to extend time was made on the last allowable day. There was no proof that the appellant had ordered the transcript or that the reporter had started to prepare the testimony of the trial.

A petition for certiorari was filed in this Court on August 4, 1986. We denied the petition for certiorari on August 18, 1986, but we stated that we would allow time to prepare the transcript if appeal of the order of April 15, 1986, were allowed. Briefing schedules on the interlocutory appeal were assigned. On March 30, 1987, we reversed the trial court’s order denying appellant’s appeal (Purtle, J., dissenting). See Venhaus v. Pulaski County Quorum Court, 291 Ark. 558 (1987). Technically this opinion reinstated appellant’s appeal from the order of April 15, 1986. The preparation of the transcript for that appeal apparently has not begun. There is no need for an all-inclusive transcript of all of the testimony even if we allow the appeal to be pursued because the sufficiency of the evidence will most certainly not be an issue on appeal.

Before the ink was dry on our decision allowing the appellant to continue with the appeal, he filed the present motion seeking to have a full seven months to file the transcript. The appellant is using this motion simply as a delay tactic. His petition for certiorari was filed on the eighty-ninth day following the notice of appeal. He apparently had not ordered the record at that time although it was due to be filed in this Court the next day. By the date of filing his petition for certiorari he had used up four months time and now he wants seven more. The appellant is using this Court to evade the established rules and to delay the collection of the judgment in favor of the deputy sheriffs.

We ought to grant appellant’s present motion for clarification and do so by dismissing the appeal itself for lack of merit. Also, the record has not been timely filed with the clerk of this Court. As of this date, a year after the trial court’s decision, the transcript has apparently not yet been ordered.

The Constitution of Arkansas, Amendment 55, established the various county quorum courts as the legislative branch for the counties. Section 3, addressing the duties of the county judge, states that the judge is to “administer ordinances enacted by the quorum courts.” The powers of the quorum court are defined in Section 4 of the Amendment, which in part provides: “[T]he quorum court shall have the power to override the veto of the county judge . . . [and] fix the number and compensation of deputies and county employees. . . .” It is clear throughout the amendment and the enabling statutes that the quorum court is vested with the legislative power of the county. At no place in Amendment 55 does it provide that the county judge has the power to refuse to comply with ordinances duly enacted by the quorum court.

The ordinance is the absolute controlling law of the county, provided it does not violate state law or the constitution. In the case before us the quorum court has enacted an ordinance appropriating funds to pay the deputies in the sheriffs department. The quorum court has overridden the county judge’s veto. Furthermore, the quorum court has enacted an ordinance to prohibit funds from being spent by the appellant on this appeal.

I believe the appeal is moot since the quorum court has already appropriated the funds to pay the judgment the quorum court has positively declined to appeal from the judgment of the trial court. However, it appears the appellant is trying to force the quorum court to appeal. Even if this appeal were to be successful, the quorum court could still vote again to appropriate funds for the payment of the judgment. In fact, there is no reason for the quorum court not to proceed with payment of these claims at the present time.

There is no argument by the lone appellant that the quorum court has appropriated funds in an unlawful manner. The only possible purpose of the appeal is to assert the appellant’s power as per this Court’s decision of March 30, 1987, that the appellant has the right to appeal the judgment of the trial court. Our decision did not attempt to rule or even imply that the appellant would be successful on an appeal on the merits.

The majority per curiam gives no reason why the first four months used by the appellant should not be counted against him or why the trial court abused her discretion in denying the appellant an extension of time to file the record. Rule 5 of the Rules of Appellate Procedure provides that the record shall be filed within 90 days from the filing of the first notice of appeal, unless an extension of time is granted by the trial court. I do not understand what makes this appellant different from the others or why he should not follow the court rules. Neither do I understand why he wants to spend attorney’s fees, court costs and other expense in his vain attempt to exercise control over the quorum court.

Pride goeth before destruction and a haughty spirit before a fall. The appeal should be dismissed now.


source: Caselaw Access Project

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

license: Public Domain

text:
    Brian Judah MICHALEK v. A. L. LOCKHART, Director, Arkansas Department of Correction
    86-234
    730 S.W.2d 210
    Supreme Court of Arkansas
    Opinion delivered June 1, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

At issue in this appeal is the classification for parole eligibility purposes of an inmate at the Arkansas Department of Correction. The trial court upheld the action of the Department. We affirm.

Brian Judah Michalek, the appellant, entered a negotiated plea of guilty on May 28, 1981, to breaking and entering and to arson. He received a fifteen-year sentence for the arson conviction and five years for breaking and entering, with the sentences to be served concurrently. While he was incarcerated, Michalek escaped and was charged with escape and theft of property. He entered a negotiated plea of guilty to those charges on July 11, 1983, and received a two-year sentence for the escape, and four years for theft of property, to be served concurrently. This four-year sentence, however, was to be served consecutively to the fifteen-year sentence imposed in 1981.

After his second set of convictions, Michalek was reclassified by the Department of Correction, for parole eligibility purposes, from a first offender to a second offender. It is that reclassification that is the subject of this appeal. Michalek contends the Department improperly computed his sentence after his second conviction. Michalek also contends the Department violated his state and federal constitutional rights. Neither allegation has any merit.

In his first assignment of error, Michalek relies on this court’s decision in Bosnick v. Lockhart, 283 Ark. 206, 672 S.W.2d 52 (1984), supplemental opinion on denial of rehearing, 283 Ark. 209, 677 S.W.2d 292 (1984). In that case, Bosnick was sentenced to life in prison for murder committed on December 31, 1968. In 1977, Act 93 was passed by the General Assembly which changed the parole eligibility laws. On October 30,1978, Bosnick escaped from prison, for which he was subsequently convicted and sentenced to an additional three-year term, to be served consecutively. Although Act 93 was in effect at the time of Bosnick’s escape from prison, a different parole eligibility law applied when Bosnick committed murder in 1968. Under the prior law, Bosnick was eligible for parole after serving fifteen years of the life sentence. Under Act 93, he was not eligible for parole until and unless the life sentence was commuted to a term of years by the governor. The Department applied the 1977 Act and refused to consider Bosnick for parole. This court reversed, holding that “parole status is governed by the parole statute in effect at the time the crime was committed.”

Our holding in Bosnick is not applicable to the facts of this case. The same parole statute, Act 93 of 1977, was in effect when both of Michalek’s crimes were committed. The Act, codified at Ark. Stat. Ann. §§ 43-2828 — 43-2830 (Repl. 1977 & Supp. 1985), makes provision for “first offenders”: “inmates convicted of one or more felonies but who have not been incarcerated . . . for a crime which was a felony”, and for “second offenders”: “inmates convicted of two or more felonies and who have been once incarcerated ... for a crime which was a felony.” § 43-2828(1) & (2). First offenders are not eligible for parole until a minimum of one-third of their sentence is served, while second offenders are not eligible until a minimum of one-half of their sentence is served. § 43-2829(B)(2) & (3).

Although Michalek was classified as a first offender and only required to serve one-third of his sentence after his first conviction, he was properly reclassified as a second offender after his second conviction, and ordered to serve one-half of his sentence to be eligible for parole. The parole eligibility laws did not change while Michalek was incarcerated; his status did as a result of his commission of a second crime. We have previously explained that everyone is charged with knowledge of the criminal law and that the purpose of Act 93 “was to lengthen the period of confinement before parole eligibility as the number of prior convictions increases.” Tisdale v. Lockhart, 288 Ark. 203, 703 S.W.2d 849 (1986), Woods v. Lockhart, 292 Ark. 37, 727 S.W.2d 849 (1987).

As to Michalek’s second argument, it is not clear what constitutional rights he is claiming were violated and he does not cite any authority in his argument. Assignments of error unsupported by convincing argument or authority will not be considered on appeal unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Nevertheless, the classification scheme contained in § 43-2828 violates no constitutional due process right since there is no constitutional right or entitlement to parole. Stuart v. Lockhart, 587 F. Supp. 1 (E.D. Ark. 1983). The United States Supreme Court has also explained that “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979).

Accordingly, Michalek’s claim that his constitutional rights were violated is without merit.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I respectfully dissent. The appellant was sentenced by the trial court to fifteen years in the Arkansas Department of Correction. Under the current parole statutes, Ark. Stat. Ann. §§ 43-2828—2833 (Repl. 1977 & Supp. 1985), he was to serve five years of the sentence as he was unquestionably a “first offender” as defined in the statute. While serving this sentence he committed crimes for which he was sentenced to serve an additional four years, consecutive to the sentence of fifteen years which he had been serving. The Arkansas Department of Correction subsequently reclassified him as a second offender and related it back to the first sentence. Under the Department of Correction’s application of the statute and this Court’s interpretation of it in the present case, the appellant is now required to serve at least one-half of the original sentence.

The effect of the Arkansas Department of Correction’s action is to resentence him on the first offense and require him to serve a longer sentence than imposed by the trial court. This action is clearly ex post facto as applied to the original sentence. He now must serve time on the first offense which was not required at the time of the first sentencing.

Act 93 of 1977 undoubtedly was intended to lengthen the period of confinement imposed for subsequent offenses committed by persons who had been previously incarcerated for a felony. The majority opinion cites the applicable statute, but fails to quote the determinative section thereof. Ark. Stat. Ann. § 43-2828(1) (Repl. 1977) defines “first offenders” as “inmates convicted of one or more felonies but who have not been incarcerated ... for a crime which was a felony . . . prior to being sentenced to a correctional institution in this state for the offense or offenses for which they are being classified. [Emphasis added.]” For the purposes of the application of this statute to the original sentence, the appellant clearly remained a “first offender”; he was re-classified as a “second offender” for an offense prior to which he had never been incarcerated.

The legislature is supposed to enact laws and the courts are supposed to interpret and apply the laws. The Arkansas Department of Correction is required to operate pursuant to the laws of the state. However, it now appears the Arkansas Department of Correction may interpret the law as it sees fit in spite of the plain words of the statute.

Certainly appellant could correctly and legally be compelled to serve one-half of the second sentence because that is what the law states. However, to increase a sentence already being served is most certainly ex post facto and fundamentally unfair.


author: Darrell Hickman, Justice.

text:
    S. Wayne EVERETT and PENROSE, INC. v. CITY OF WYNNE, ARKANSAS; AIRPORT COMMISSION FOR WYNNE, ARKANSAS; and Norman BURNETTE
    87-109
    730 S.W.2d 212
    Supreme Court of Arkansas
    Opinion delivered June 1, 1987

      Everett & Whitlock, by: Robert J. Gladwin, for appellants.

      Killough & Ford, by: Robert M. Ford and S. Kyle Hunter, for appellees.
   Darrell Hickman, Justice.

Wayne Everett, a crop duster pilot, sued the City of Wynne because it prevented him from operating his agricultural spraying business from the Wynne Municipal Airport. His main argument was that the airport’s manager, Norman Burnette, was allowed to operate his crop-dusting business from the airport and denied others the same privilege and that this constituted a violation of the United States Constitution. The airport commission asked for a declaratory judgment of the rights under a lease with Burnette.

The chancellor upheld the lease agreement between the Wynne Airport Commission and Burnette and denied Everett any relief. On appeal Everett makes three arguments: (1) the grant to Burnette of the exclusive privilege of operating a crop-dusting business violates the Equal Protection Clause of the United States Constitution; (2) the exclusion of Everett from using the airport is not a valid exercise of the police powers; and (3) the agreement between the airport commission and Burnette is not a valid franchise agreement. We find no merit to these arguments and affirm the decree.

The facts are virtually undisputed. The airport commission signed a ten year contract with Burnette in 1979 as airport manager. Because the city and the commission could not afford to pay Burnette, he was granted the exclusive right to provide the usual airport services: gas, maintenance and repairs of aircraft, parking spaces, taxi services, etc. He was given a lease of land 1,000 feet north and 1,000 feet south of the main entrance to use in connection with these services. He was also granted the right to operate his crop-dusting business from the airport. All of this was a part of the consideration which Burnette received in return for managing the airport without cost to the city and commission. The commission considered it a fair exchange.

According to the testimony, the airport commission would not allow other crop dusters to operate from the airport for reasons of safety, health and welfare. Such operations entail loading chemicals which can run off to nearby residential areas, increased noise pollution, and increased air traffic. Burnette testified that he located his business at the airport so that the runoff of chemicals would not be toward the city, and this runoff plan was approved by the Environmental Protection Agency.

On March 24, 1986, Everett landed his plane at the airport in order that his trucks could load his plane with chemicals; however, Burnette would not allow Everett to so use the airport because of his exclusive privilege agreement with the airport commission. The gate to the airport is normally locked to keep vehicles off the runway. Everett cut the lock to let his trucks come onto the airport property, loaded his plane, and used the airport in his spraying business. Everett then sought injunctive relief. The City of Wynne sought to prevent Everett from operating his business at the airport.

The Equal Protection Clause of the United States Constitution protects fundamental personal rights. In this case Everett concedes he has no right to operate his business from the municipal airport. He was not denied the right the public has to use the airport—only the privilege of setting up his business and operating it from the municipal airport. He could land, take off, and service his planes; he could not load chemicals and fertilizer. His argument is, “If Burnette can, why can’t I?” The answer is because the city, in the use of its police power and its legislative power, decided that in the interest of economy, it would be best for the city to have an airport manager at no charge and in return, the manager would be allowed to operate his private business from the airport to the exclusion of other private businesses.

In the case of City of New Orleans v. Dukes, 427 U.S. 297 (1976), two street vendors were allowed to continue to operate their businesses in the French Quarter while others were prohibited. Without elaboration, there were economic reasons for the city’s action. The court said:

When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. (Citations omitted.) Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude.

Everett does not deny that the City of Wynne and the airport commission can prohibit all crop dusters from operating from the airport in the exercise of its police power. He argues, however, that the city’s action is arbitrary. It has allowed one operator to base his operations there and has made no effort to set standards regarding flights or safety.

The evidence did reflect that there are 13 crop duster operators in Cross County. The city did not want any other crop dusters using the strip for safety reasons and for the health and welfare of the residents of the city. In addition the city needed a good manager, and the grant was made to obtain Burnette at no cost to the city.

The argument that the city granted an illegal franchise must also fail. Everett has not cited any authority to support his argument. The case of City of Daytona Beach v. Dygert, 1 So. 170 (Fla. 1941), is cited by Everett in his equal protection argument as law in his favor. We will consider it under this franchise agreement argument. In that case the city granted an individual the exclusive right to operate an airport. In effect, it became a private airport. In this case the commission ran the airport for the city, and Burnette managed it for the commission. This did not involve a franchise agreement but instead a lease. Neither the public nor Everett has been denied any fundamental right.

Affirmed.


author: John I. Purtle, Justice.

text:
    James Daniel MUCK v. STATE of Arkansas
    CR 87-10
    730 S.W.2d 214
    Supreme Court of Arkansas
    Opinion delivered June 1, 1987

      Mark E. Ford, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The trial court denied the appellant’s petition for relief pursuant to Rule 37 which alleged that there was no factual basis upon which the guilty plea could be supported. On appeal the appellant argues: (1) the court erred in failing to establish a factual basis to support the guilty plea; and (2) the court erred in finding that defense counsel was not ineffective and in finding that the appellant’s guilty plea was voluntarily and intelligently entered. For the reasons stated below we do not agree with either contention of the appellant.

On November 17, 1983, the appellant was charged by information with the offense of murder in the first degree in violation of Ark. Stat. Ann. § 41-1502 and attempted murder in the first degree in violation of Ark. Stat. Ann. § § 41 -1502 and 41 - 701. The appellant subsequently entered pleas of not guilty to both charges. On April 27,1984, the appellant changed his pleas and entered a plea of guilty to each charge. The trial court found the appellant guilty on both charges. On March 17, 1986, the appellant filed a petition for post-conviction relief pursuant to A.R.Cr.P. Rule 37. The petition alleged that there was no factual basis for the conviction upon the charge of attempted murder in the first degree, and that defense counsel was ineffective and deficient and that such deficiency rendered the appellant’s guilty plea to said charge unintelligent and involuntary. After an evidentiary hearing on the Rule 37 petition, the trial court entered its order denying any relief.

The first argument is that the trial court erred in accepting his guilty plea without first making a factual determination of the basis of such plea as required by A.R.Cr.P. Rule 24.6. We recently stated in Grover v. State, 291 Ark. 508, 726 S.W.2d 269 (1987), that the trial court’s failure to make such a factual determination when the plea is taken may be remedied at the Rule 37 hearing where the factual basis is determined to have existed at the time of the guilty plea. We have a similar situation in the case before us. A.R.Cr.P. Rule 24.6 provides that the trial court shall not enter a judgment upon a plea of guilty without making such an inquiry as will establish that there is a factual basis for the plea. Although this rule is mandatory, substantial compliance with the rule is all that is required. Jones v. State, 288 Ark. 375, 705 S.W.2d 874 (1986). The court must ask the defendant if he did the things of which he stands accused and is pleading guilty because he is guilty. Smith v. State, 291 Ark. 496, 725 S.W.2d 849 (1987); McDaniel v. State, 288 Ark. 629, 708 S.W.2d 613 (1986).

At the plea hearing, the trial court essentially read the information stating the charges and asked appellant if he understood them. The appellant replied, “Yes.” When asked how he pleaded to the charge of attempted murder in the first degree, the appellant replied, “Guilty.” The appellee concedes that the question of whether there was substantial compliance with Rule 24.6 at the plea hearing is a close one in the present case. However, at the Rule 37 hearing the appellant introduced a statement by one of the witnesses to the murder, who was also the victim of the attempted murder charge. In the statement the witness, Teresa Buckman, stated that the appellant “pointed a gun at me which looked like a small handgun and fired directly at me. . . .” The foregoing statement alone is sufficient to establish a factual basis for the entry of the guilty plea.

With regard to the claim of ineffective assistance of counsel, the appellant has the burden of showing that the advice he received from his attorney was not within the range of competence demanded from attorneys in criminal cases. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982). Counsel is presumed to be effective. Rightmire v. State, 275 Ark. 24, 627 S.W.2d 10 (1982). At the Rule 37 hearing, testimony indicated that counsel had visited the appellant in the jail five or six times. Counsel also inspected the prosecutor’s file, made notes from the file, and discussed his notes with the appellant. The appellant has simply not met his burden of demonstrating that defense counsel was ineffective.

The United States Supreme Court has adopted a two-part test for reviewing claims of ineffective assistance. Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Second, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. In Hill v. Lockhart, 106 S.Ct. 366 (1985), the Supreme Court held that the two-part Strickland standard applied to guilty pleas. Under Hill, in order to satisfy the second prong of the Strickland test, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, he would not have pleaded guilty and would have insisted upon going to trial.

On this point appellant argues that his counsel failed to obtain another psychiatrist to examine him. The trial court had previously ordered that the appellant be admitted to the State Hospital for psychiatric evaluation. The report from the State Hospital was that the appellant was competent both at the time the offense was committed and at the time of the guilty plea. At the Rule 37 hearing, the testimony demonstrated that the attorney did discuss the case with a psychiatrist but that the appellant could not afford to pay for the examination. Certainly there is no demonstration of fact which would indicate ineffective assistance of counsel on this point. We have dealt with this situation several times in the past and have reached the same conclusion each time. See Henry v. State, 288 Ark. 592, 708 S.W.2d 88 (1986), and Glick v. State, 286 Ark. 133, 689 S.W.2d 559 (1985). At the hearing on the Rule 37 petition the appellant did not tender testimony or evidence that another psychiatrist would have testified that he was mentally incompetent at any time.

Another argument on the allegation of ineffective assistance is that counsel failed to obtain a ruling on a motion to suppress, which had been filed prior to the change of plea. This allegation can hardly be taken seriously in view of the fact that the appellant admitted at the Rule 37 hearing that the statement he had given was true and voluntary. He further acknowledged he received his Miranda warnings prior to giving the statement. Moreover, the statement sought to be suppressed did not even mention the attempt to kill Teresa Buckman. It was her statement, partially quoted earlier in this opinion, that was introduced by appellant.

Even though the court may originally have erred in not obtaining a sufficient factual basis to accept the guilty plea, such error was cured by the trial court at appellant’s Rule 37 hearing. Further, the appellant has failed to demonstrate that counsel’s representation fell below an objective standard of reasonableness or that there is a reasonable probability that, but for counsel’s unprofessional errors, he would not have pleaded guilty and would have insisted upon going to trial. Evidence presented at the hearing clearly supports the trial court’s denial of Rule 37 relief.

Affirmed.

Hickman, J., concurs.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    ARKANSAS GAME & FISH COMMISSION v. Thomas E. LINDSEY, Alfred PEITZ, and C.W. ELROD
    86-19
    730 S.W.2d 474

    Supreme Court of Arkansas
    Opinion delivered June 1, 1987
    [Rehearing denied July 6, 1987.]

      Howell, Price, Trice, Basham & Hope, P.A., by: Carey E. Basham and Dale Price; and P. Douglas Mays, Arkansas Game & Fish Commission, for appellant.

      Richard B. Adkisson, for appellee.

       Justice Purtle’s and Justice Glaze’s opinions can be found at 733 S.W.2d 723.

   Robert H. Dudley, Justice.

The appellees purchased two tracts of land on the shore of Lake Conway. They subdivided one of the tracts and started promoting the sale of lots. The most direct route to the subdivision is by use of a road which crosses part of the Camp Robinson Wildlife Demonstration Area which is owned by the appellant, Arkansas Game and Fish Commission. See Ark. Const, amend. 35, § 8. The appellant Commission claims the road as a private road and placed a barricade across it. Appellees filed suit in the Chancery Court of Faulkner County to enjoin the Commission from barricading the road. The Commission responded with an ARCP Rule 12(b)(3) motion alleging that Faulkner County was not the county of proper venue, filed an answer, filed a compulsory counterclaim seeking affirmative relief, and filed a third party complaint also seeking affirmative relief. The third party answered and issues were joined.

The applicable venue statute, Ark. Stat. Ann. § 27-602 (Repl. 1979), provides that all actions against State Boards or Commissions must be filed in Pulaski County. The trial court relied on cases which we decided before the current Rules of Civil Procedure were adopted, and held that the Commission waived the issue of improper venue when it asked affirmative relief against the appellees and against the third party defendant. See Foster v. Arkansas State Highway Comm’n, 258 Ark. 176, 527 S.W.2d 601 (1975); Arkansas State Racing Comm’n v. Southland Racing Corp., 226 Ark. 995, 295 S.W.2d 617 (1956). The appellant Commission argues that the trial court erred in refusing to dismiss appellees’ complaint because of improper venue. We affirm the result reached by the trial court on this issue.

Prior to our adoption of the Rules of Civil Procedure, it was necessary for a party to make a special appearance in order to object to venue. If that party proceeded further and made a general appearance by some act, such as the filing of a permissive counterclaim, he waived the issue of venue and entered his appearance in a county other than the one designated by the venue statute. Thompson v. Dunlap, 244 Ark. 178, 424 S.W.2d 360 (1968). ARCP Rule 12(b) has abolished the distinction between special and general appearances. A defendant need no longer appear specially to attack venue. Bituminous, Inc. v. Uerling, 270 Ark. 904, 607 S.W.2d 331 (1980) and ícc Reporter’s Notes to Rule 12, Note 7. Thus, the Commission did not waive venue simply by making a general appearance.

Our cases, before the current Rules of Civil Procedure, held that one who came into court and sought affirmative relief against a plaintiff by a permissive counterclaim invoked the court’s jurisdiction in the case so that he could not later question the court’s authority to pass on all questions between himself and his adversary. Thompson v. Dunlap, 244 Ark. 178, 424 S.W.2d 360 (1968). In Federal Land Bank of St. Louis v. Gladish, 176 Ark. 267, 2 S.W.2d 696 (1928), we explained why a demand for permissive affirmative relief enters one’s appearance: “But one cannot come into court, assert a claim, ask the court for affirmative relief, and then, when there is an adverse judgment, claim that the court had no jurisdiction over his person. If this could be done, the appellant would have the opportunity and advantage of prosecuting its claim, and, in case it recovered judgment, it could collect, and at the same time take no chances of a judgment against itself.”

The above cases dealt with permissive counterclaims but the case at bar deals with a compulsory counterclaim. In dealing with the doctrine of waiver, there is a significant distinction between the two types of counterclaim. Wright and Miller, in Federal Practice and Procedure: Civil § 1397 (1969) explain:

Although waiver is a reasonable result when the counterclaim asserted is permissive under Rule 13(b) [the permissive counterclaim rule], it seems improper to apply waiver when the counterclaim is compulsory under Rule 13(a) [the compulsory counterclaim rule]. By interposing a permissive counterclaim, a party voluntarily asks the court for affirmative relief and thus should not be allowed objections based on personal inconvenience. In addition, application of the waiver principle reinforces the policy against piecemeal litigation of claims that is reflected in all of the joinder of claims and multiparty litigation procedures in the rules. But waiver in the case of a compulsory counterclaim does not seem appropriate inasmuch as defendant is obliged by Rule 13(a) to assert his claim and does not have the option afforded by Rule 13(b).

Justice Newbern, in his book Arkansas Civil Practice and Procedure § 11-4, (1985), discusses our cases and the defendant’s dilemma with a compulsory counterclaim as follows:

In deciding that a request for affirmative relief waived an objection, previously made, to improper venue, the supreme court recognized but did not answer the problem which might arise when an objection to venue is overruled and the objecting party has a claim which could be characterized as a compulsory counterclaim. The question whether the objecting party must waive either the objection or the counterclaim under those circumstances has not been addressed.

(Emphasis added.)

The language of the Rules of Civil Procedure is of no help on the issues. Rule 12(b), the pertinent part, provides:

(b) How Presented. Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: ... (3) improper venue, .... A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a

responsive pleading or motion.

As can be seen, the rule allows a defendant to answer to the merits in the same pleading in which he raises the issue of venue, but it does not authorize a defendant to couple a counterclaim with a venue motion. The provision “[n]o defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion” is of no assistance since it is reasonably clear that a counterclaim or third party complaint is not a “defense” within the purview of the quoted passage. D. Newbern, Arkansas Civil Practice and Procedure § 11-1 (1985); C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1397 (1967).

Similarly, Rule 12(h)(1) does not answer the question. It only provides that the defense of improper venue is waived if not made either by motion or in the original responsive pleading. The rule does not provide that it is exclusive of other waiver situations.

Since the rules do not govern the issue before us, we must look to our common law. As previously stated, we do not find any prior cases involving a compulsory counterclaim, and so, we must choose what we regard as the sounder approach. We hold that the assertion of a compulsory counterclaim does not constitute a waiver of objection to venue because of the non-voluntary character of the compulsory counterclaim. As stated in Dragor Shipping Corp. v. Union Tank Car Co., 378 F.2d 241 (9th Cir. 1967):

Under Rule 13(a) a party who fails to plead a compulsory claim against an opposing party is held to have waived such claim and is precluded by res judicata from bringing suit upon it again. . . . However, since such a party has no alternative but to submit his compulsory claim against an opposing party, or lose it, his act in asserting it does not constitute a waiver of any jurisdictional defense he previously or concurrently asserts.

Accordingly, the appellant Commission did not waive its objection to venue by filing the compulsory counterclaim.

However, the same reasoning does not apply to a defendant who pleads improper venue and who also files a third party complaint. By filing the third party complaint he invokes the jurisdiction of the court, and by invoking it submits to it. Globig v. Greene & Gust Co., 193 F. Supp. 544 (E.D. Wis. 1961); Merz v. Hemmerle, 90 F.R.D. 566 (D.C.N.Y. 1981). Clearly, one should not be allowed to assert voluntarily a claim against a third party defendant, and then, if there is an adverse judgment, claim the court was not the proper venue. Therefore, the appellant Commission waived improper venue by asserting a third party complaint. The trial court reached the correct result on this point.

The Commission next contends that the trial court erred in refusing to dismiss the case because it is a suit against the State and is prohibited by article 5, section 20 of the Constitution of Arkansas. The trial court was also correct on this ruling.

An exception to the prohibition against a suit against the State exists where the act sought to be enjoined is illegal or is causing irreparable injury. Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984); Arkansas Game and Fish Comm’n v. Eubanks, 256 Ark. 930, 512 S.W.2d 540 (1974). The application of the constitutional prohibition is determined by the pleadings. Here, the allegations of the complaint were that the road had been open as a public road for more than 50 years, was designated as a county road, and that the Commission was obstructing a public road which was causing appellees irreparable injury. In addition, the obstruction of a public road is illegal. Ark. Stat. Ann. § 41-2915 (Repl. 1977). The trial court correctly ruled that this case fell within the exception.

The merits of this case involve the claim by the appellant Commission that the eastern segment of the Webster’s Ridge Road to Lake Conway is its private road while the appellees claim that it is a public road. It is undisputed that an old road was located near the present road, but the old road was clearly in a different location. Around the turn of the century, the old road served as the access to homes, a church, and a cemetery. It was later used as a mail route, a school bus route, and as access to a lake by hunters and fishermen. In 1940, the United States of America acquired title to all the land in the area by condemnation, but that title was subject to existing easements. In 1949, the United States quitclaimed its interest in the 4,205.8 acres to the State of Arkansas for the Commission’s Camp Robinson Wildlife Demonstration Area. In the mid-1950’s, the Commission built the new segment of the road across its own land. By that time, there were no homes or churches in the area, but some hunters and fishermen began to use the new road. The Chancellor found that the old road was a “county road by operation of law” and that the new road was a “part of the county road system of Faulkner County.” The ruling is in error.

County roads, as distinguished from public roads by prescriptive right, may be created in either of three ways.- First, the landowners can dedicate the right-of-way to the county. See Ark. Stat. Ann. §§ 76-108 and 76-109 (Repl. 1981 and Supp. 1985). There was no dedication of either the old or the new rights-of-way in this case. Second, a county may condemn and pay for the right-of-way. See Ark. Stat. Ann. §§ 76-901 to -928 (Repl. 1981). There was no condemnation action in this case. Third, the County Judge may enter an order, after notice, declaring a mail route or a school bus route a county road. Ark. Stat. Ann. §§ 76-105 and 76-106; Johnson v. Wylie, 284 Ark. 76, 679 S.W.2d 198 (1984). No such order was ever entered, and no such proceeding can now be had because the roads no longer serve as either a school bus route or a mail route.

A former County Judge testified that he thought the county owned the road because someone, in 1975, wrote a county road number on a Faulkner County road map which was kept at the county garage. Of course, such non-judicial action by someone without statutory or common law authority, was not sufficient to transfer title to Faulkner County of either the corporeal or incorporeal hereditaments. Of course, the hunters and fishermen could not acquire a prescriptive right to the new road across state land because the limitations period for prescription does not run against the State. Bengel v. City of Cotton Plant, 219 Ark. 510, 243 S.W.2d 370 (1951). Sec also Annot. 55 A.L.R. 2d 554, 578 (1957). Therefore, neither the old road nor the new road was a county road.

The appellant next argues that “the trial court erred in finding that ‘by acquiescence between Arkansas Game and Fish Commission and Faulkner County, the road in question was moved and continued as a county road.’ ” The argument is meritorious for three reasons. First, Faulkner County had no road to exchange with the state; second, no state authority to convey state lands is shown; and third, there simply is no evidence of an exchange agreement. The first two reasons are self-explanatory. The only substantial evidence going to the third reason was given by Robert Pierce, a witness for the Commission, and Robert Adney, a witness for the appellee. Mr. Adney, a former employee of the Commission, testified that the new roadway evolved from a firebreak which the Commission had cut through its land. Mr. Pierce, testified that at the time he was manager of the Wildlife Area for the Commission, he caused the new road to be built with the use of a bulldozer and a roadgrader owned and operated by Commission personnel. He testified that the new road was built for recreational purposes to let hunters and fishermen use the Wildlife Management Area. There simply is no substantial evidence of Faulkner County’s participation in the construction of the road or of the county’s involvement in any type of exchange agreement. The only evidence involving the county is that sometime in the 1960’s it began to occasionally blade the road.

Reversed.

Hickman, Purtle, and Glaze, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I dissent because I find only one road in issue.

John I. Purtle, Justice,

concurring in part and dissenting in part. I dissent from that part of the opinion which addresses the portion of the road known as “Webster’s Ridge Road.” There is only one road between the Saltillo Road and Green’s Lake, the road in question. There is no other road that reaches the landing on Lake Conway which is known as Green’s Lake. If the appellees are prevented from traveling along this road, they have in actuality lost the use of their property. It is well established that property cannot be taken without just compensation and without due process of law.

The land owned by the appellant was received through a quitclaim deed from the United States. Ownership of the land had been acquired by the United States subject to existing easements. Obviously the appellant took only such title as the United States had. Faulkner County was not a party to the condemnation suit wherein the United States gained title to the lands in question. The United States did not receive, nor could it convey, title to the road easements through this property.

The evidence produced at trial supported the chancellor’s findings that the public had acquired a prescriptive right to use the road from the Saltillo Road to Green’s Lake. It is undisputed that the appellant established that part of the road which the majority designates as “Webster’s Ridge Road.” This newly prepared section was primarily for the benefit of the appellant and was an exchange for existing roads over the property. There was an agreement between the appellant and Faulkner County to exchange the old roads for the new one. Faulkner County thereafter treated the new route as a part of its county road system, keeping it open to the public, grading and maintaining it.

The decree in part states:

. . . Plaintiffs are owners of the following described lands . . . access to which property is provided by means of a roadway commonly known as “Green’s Lake Road”, which runs from ... the “Saltillo Road”, to . . . the shoreline of Lake Conway on plaintiffs lands.
Prior to 1940, two roads led into the area known as the saddle, which, in fact, became and were county roads by operation of law through their usage as mail routes and school routes; service to the residents, the church, and the cemetary; and by the use of county personnel and equipment in establishing and maintaining said roads.
Between 1955 and 1960, Arkansas Game and Fish Commission and Faulkner County, Arkansas, relocated said prior roads into the road now known as the Ridge Road . . . Said road has thereafter been used by the general public. Faulkner County and Arkansas Game and Fish Commission have maintained said road, and said road is a public road, part of the county road system of Faulkner County, Arkansas.
Wherefore, . . . that roadway known as the “Green’s Lake Road”, as now located, running from its eastern terminus at its intersection with the county road known as the “Saltillo Road”, . . . be and the same is hereby found and decreed to be a public road, and a part of the county road system. . . .

This Court held in Chaney v. Martin, 205 Ark. 962, 171 S.W.2d 961 (1943), that:

We do not deem it necessary to decide whether the proof in this case justified the finding that appellee had acquired by prescription an easement along the old route used by him in crossing appellant’s land. Regardless of whether appellee had acquired such right, it is shown by the evidence that appellant recognized this right to the extent that he provided for appellee a new right-of-way across his land, and the evidence further shows that appellee accepted this new route and used it for several months. Appellee thereby surrendered any prescriptive right to use the old route that he might have possessed. This exchange of routes, accompanied by surrender of the old route and acceptance and continued use of the new route by the appellee, as was shown by the evidence in this case, was effective, even in the absence of any writing to evidence the agreement.

In the more recent case of Higgins v. Blankenship, 270 Ark. 370, 605 S.W.2d 493 (1980), the Court of Appeals upheld and reaffirmed the rule in Chaney. The Court of Appeals in a factually similar situation held that there was an easement by agreement, rather than by prescription, and such easement could be lost only by abandonment. This Court reached the same result in Warren v. Cudd, 261 Ark. 690, 550 S.W.2d 773 (1977), and went on to hold that an oral agreement was sufficient to establish the right of a roadway. We further held that such easement, even though the result of oral agreement, was transferred by deed as an appurtenance to the land.

It does not matter whether the appellees had established an easement by use or prescription because the appellant agreed to allow the use of the new road in exchange for whatever right the appellees had in the existing roadways. The appellant had the right to grant the easement by agreement.

It is impossible to get to the appellee’s property by land without going across some of the lands owned by the appellant. The majority finds that an easement along the Green’s Lake portion of this road has been established by adverse use and prescriptive right because the public has traveled the road for more than seventy-five years. Since it is not possible to reach the lower end of the road without traveling across the lands in the upper part of the road, it is hard for me to understand how a right can be obtained across part of the road but not all of it.

Apparently the majority holds that the appellees have, in fact, acquired a prescriptive right across the Webster’s Ridge portion of the road but not exactly in the same location as the new road. I think the exchange of location extinguished the old easement and established a new one. In any event, it appears from the record that it would be to the benefit of the appellant to maintain the new route rather than to force the appellees to reestablish the old route down Webster’s Ridge. I think the exchange agreement between the appellant and Faulkner County had the effect of transferring the old prescriptive or adverse use roadway to the new location. The acceptance and use of the new route is sufficient consideration to establish the new easement.

The chancellor found that sometime between 1955and 1958 the county and the appellant agreed to the relocation of the road to its present site. He also found that the road had thereafter been used by the general public. These findings of the trial court force me to conclude that the new location was established by agreement and that this agreement had the same effect as establishing a prescriptive easement. Therefore, the majority’s reliance upon the doctrine that the statute of limitations does not run against property owned by the state is misplaced. This doctrine is simply not relevant where, as in the present case, the facts establish an easement by agreement.

The majority opinion is unique in that it grants the public the use of the distal portion of the road but denies use of the portion of the road which provides access to the “Green’s Lake Road.” There is no other access to this portion of the road except by the “Webster’s Ridge Road.” Apparently the majority means to provide access over the old routes, which were found to have been used by the public for more than seventy-five years, or perhaps the majority intends for the appellees to resort to acquisition of a road across the Arkansas Game and Fish Commission lands pursuant to Ark. Stat. Ann. §76-110 (Repl. 1981). In any event, it seems to me that granting the use of one section of the road and denying use of the other section is not only contrary to the facts and the law but lacks any reasonable basis.

The majority opinion fails to mention the standard of review on appeal. There is no reason revealed in the record for this Court to find that the chancellor was clearly wrong in its findings and the failure to mention the standard of review does not render the standard inapplicable. I believe that the chancellor’s decision is in accordance with the overwhelming evidence presented at the trial and is not clearly erroneous.

In my opinion the chancellor should be affirmed in all respects.

Tom Glaze, Justice, dissenting. The majority court is clearly wrong in two respects. First, it concludes erroneously that the trial judge found adverse users acquired a prescriptive right against the State to the relocated road known as Webster’s Ridge Road. Second, it then applies the wrong rule of law, viz., that the statute of limitations does not run against property owned by the State.

Obviously, a person cannot hold adversely to the State, and the trial court did not, and doubtless would not, make such a holding. What the trial judge did find is as follows:

Prior to 1930 two roads led into the area known as the Saddle which, in fact became county roads by operation of law through their usage as mail routes school routes service to the residents, church and cemetery in the area and by the use of county personnel and equipment in establishing and maintaining such roads. The United States of America acquired title to the land served by such roads in 1940 but, Faulkner County was not made a party to such condemnation action and the rights of the county and of the public in and to such roads were not affected. Between 1955 and 1958 Arkansas Game and Fish Commission and Faulkner County relocated such prior roads into the road now known as the Ridge Road. Such roads have thereafter been used by the general public. Faulkner County and Arkansas Game and Fish Commission have maintained said road, said road is a public road, part of the county road system of Faulkner County, Arkansas. (Emphasis supplied.)

Consistent with the trial judge’s findings above, the majority concedes that, since the early 1900’s, the public traveled the entire roadway — the Green’s Lake Road (western segment) and Webster’s Ridge Road (eastern segment)—and had established that right-of-way by prescription. Because, however, Ridge Road, the eastern segment, was relocated sometime between 1955-1960, the majority somehow concludes the public use to that part of the public right-of-way ended. That simply is not the law. In Chaney v. Martin, 205 Ark. 962, 171 S.W.2d 961 (1943), a dispute arose concerning whether Martin had a right to use a road that crossed Chaney’s property and accessed to a public highway. Martin claimed the road was an easement by prescription but the court determined whether Martin had acquired such a right to cross Chaney’s land was of no moment because the evidence showed Chaney recognized this right to the extent that he provided Martin a new right-of-way across his land and that Martin accepted and used the new route. The court held the exchange of the old road or route for the new one was effective, even in absence of any writing to evidence the agreement. The situation at bar is no different except here the appellees and the public had firmly established their right-of-way by prescription. Contrary to the majority’s holding, all the trial judge found here was that both roads by prescription became public easements and, while the eastern segment (Ridge Road) was relocated between 1955-1960, both the State and Faulkner County continued to maintain that eastern segment as a public road the same as it had previously been treated.

The record is abundant with evidence to support the trial judge’s finding. The evidence reflects that, when the property over which these public roads ran was condemned, the government took the property, specifically subject to existing easements for public roads and highways. Appellees presented proof that this entire route to their property was used continuously, and it was recognized and maintained by the government as a public easement. For this court to hold otherwise dehors the record and improvidently invades the province of the trial judge.

The majority became side-tracked by its discussion on county roads which juxtaposed it into position to conclude that the road in question is not a county road because the road was never dedicated or condemned as such. Thus, the majority concludes, the road was not a road which the county had authority to maintain, exchange and to hold open to the public. That issue is but a red herring since the real point in issue is whether the road was a “public easement,” not a county road. As mentioned earlier, the record is replete with evidence that both the State and Faulkner County maintained and treated the entire road or easement as a public one, and both were responsible for changing, at times, the eastern portion of the road to ensure safe passage by the public.

I must also say that the majority decision leads to a rather silly holding, viz., it permits appellees the use of the western half of the public easement that leads to their property, but the only access to it is the eastern half which the majority now limits access to, holding it no longer is a public road or easement. Thus, the appellees, from their present property, have access to one-half a public road that leads east to nowhere, except the middle of a wildlife area.

Unfortunately, our court got detoured, and instead of meeting the real issue in this case, we have only complicated matters. The State’s main concern is appellees’ possible residential development of their private property, which is located on Green’s Lake and is immediately west of and adjacent to the State’s wildlife property. Except by way of the lake, the only ingress and egress to appellees’ property is over the State’s wildlife property. On this point, I agree with the State that any use of the public road may be that use which is compatible and consistent with the use authorized by the easement. Massee v. Schiller, 243 Ark. 572, 420 S.W.2d 839 (1967). For over seventy-five years, the roads in question provided the general public access to Green’s Lake for recreation purposes. Any expanded purpose or use of the easement simply would not be permissible.

I would affirm.

       The trial court specifically ordered the entire road—from its eastern terminus commencing at the Saltillo Road thence northwesterly to the appellees’ property—a public road.


author: Robert H. Dudley, Justice.

text:
    Kenny HALFACRE v. STATE of Arkansas
    CR 86-183
    731 S.W.2d 182
    Supreme Court of Arkansas
    Opinion delivered June 1, 1987
    [Rehearing denied June 29, 1987.]

      Phillip A. McGough, appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was charged and convicted of the March 5, 1985 aggravated robbery of the Asher News and Video store in Little Rock. He does not question the sufficiency of the evidence, and there is no need to recite the facts of the aggravated robbery. We affirm the conviction.

On March 6, 1985, appellant robbed the Red Roof Inn and later told his wife and Jerry Sutherland what he had done. See companion case, Halfacre v. State, CR-86-184, handed down this date. His wife, in turn, told a Pine Bluff police officer, and that officer contacted the Little Rock Police Department. The lead in that case subsequently led to appellant’s arrest in the instant case. He contends that his arrest was illegal because of the evidentiary spousal privilege and that the conviction should be reversed and dismissed. The argument is without merit. The spousal privilege, A.R.E. Rule 504, is a testimonial privilege, and was not violated. Further, even if the arrest were illegal, it would not void the conviction. O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984).

Appellant next argues that due to the combination of the delay in bringing this matter to trial, and the lack of investigation by the public defender who was originally appointed to represent him, his sixth amendment right to a speedy trial was denied. The argument has no merit.

Appellant admits that he was tried within the time limits set out in A.R.Cr.P. Rule 28, but still argues that he was denied a speedy trial because he lost the exculpatory testimony of witnesses due to the ineffectiveness of the public defender. In Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980), we explained:

The rules set out in Article VIII of the Rules of Criminal Procedure were an effort to more precisely define what constitutes a “speedy trial” in the interest of persons accused of crime and the public and in clear recognition of Barker v. Wingo, supra. We perceive that there may be a denial of one’s constitutional right to a speedy trial after a period of delay shorter than those permitted under Rules 28 and 30, but a much stronger showing of prejudice would be necessary than that made here to overcome the presumption that a time within the prescribed limits of these rules meets constitutional requirements.

Appellant has not overcome the presumption that a trial occurring within the time limits set out in Rule 28 meets constitutional requirements because he has not shown any prejudice. He claims that due to the delay he lost the exculpatory testimony of witnesses. However, at the hearing on the claim of denial of a speedy trial, the appellant did not give any specific information concerning who the witnesses were, what efforts were made to locate them, or what their testimony would have been had they been located. Such vague claims do not establish prejudice.

The appellant received a life sentence in this case. Under the provisions of Rule 11 (f) of the Rules of the Supreme Court, we have reviewed all objections decided adversely to appellant and find no errors prejudicial to appellant.

Affirmed.


text:
    Kenny HALFACRE v. STATE of Arkansas
    CR 86-184
    731 S.W.2d 179
    Supreme Court of Arkansas
    Opinion delivered June 1, 1987
    [Rehearing denied June 29, 1987.]

      Phillip A. McGough, appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

On March 6, 1985, Betty Bryant was working as a desk clerk at the Red Roof Inn in Little Rock. She saw the appellant linger in the lobby of the Inn for about thirty minutes, and then, after all of the other people in the lobby had left, she closely observed him when he came up and asked about room rates. She told him the rates, and he immediately walked over to the window, looked out, came back, walked behind the desk, and pulled a handgun. He took the money, pointed the gun in Ms. Bryant’s face, and told her to lie down. She did so, heard the door open and close, and heard the sound of a motorcycle leaving. The police were summoned, and when they arrived, Officer Ralph Simon took a physical description of the robber from Ms. Bryant. He subsequently got a description of the robber from Roy Moore, the last person to leave the lobby before the robbery. That night appellant drove his motorcycle to a school to pick up his wife. From the school they rode to the River Port Inn in Pine Bluff where appellant showed his wife some money. She knew that he was unemployed and had just gotten out of prison, and asked where he got the money. He told her that he had robbed the Red Roof Inn. His wife reported this to a Pine Bluff policeman, who contacted the Little Rock Police Department, which ultimately arrested appellant. This led to the identification of appellant by Ms. Bryant, the charge of aggravated robbery, and the conviction. We affirm.

Appellant first contends that his arrest was the result of his wife’s breach of a confidential communication, and he is privileged to prevent her from breaching that confidence under A.R.E. Rule 504, and therefore, he argues, his arrest was illegal and his conviction should be reversed and dismissed. The argument is without merit.

Rule 504 is a rule of evidence providing a testimonial privilege to an accused in a criminal proceeding. Rule 504(b) provides: “(b) General Rule of Privilege. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.” (Emphasis added.) Here, the criminal proceedings had not begun when the wife reported the statement, and she did not testify at trial.

Even if Rule 504 were applicable to the facts of this case, appellant waived it by communicating the same information to a third person, Jerry Sutherland. A.R.E. Rule 510. Finally, even if appellant’s arrest had been illegally made, we would not reverse. We will not set aside a conviction because of an illegal arrest. O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984).

At trial, appellant’s attorney asked Officer Simon to read from his police report the description which Roy Moore gave of appellant. The trial court excluded the evidence as hearsay. The appellant contends the report was admissible under either A.R.E. Rule 803(1) or 804(b)(5). Neither rule is applicable. Rule 803(1) is the rule providing that a present sense impression may be admitted as a hearsay exception. The rule was not applicable in this case because Mr. Moore’s description of the robber was given some time after the robbery, and not while he was perceiving the event, or immediately thereafter.

Rule 804(b)(5) provides another hearsay exception for statements “having equivalent circumstantial guarantees of trustworthiness.” This exception is not applicable for two reasons: (1) The statement did not have equivalent guarantees of trustworthiness, and (2) appellant did not bring himself under the provisions of the rule because he did not prove that Mr. Moore was unavailable as a witness as required by 804(a)(5).

Appellant’s next argument is two-fold: (1) Generally, he argues that the trial court erred in allowing the jury to consider two of his prior convictions which were on appeal, and (2) more specifically, he argues that since one of these two convictions was later reversed and dismissed, there has been a miscarriage of justice. The trial court did not commit error.

The two prior convictions were properly admitted into evidence for purposes of sentence enhancement even though they were on appeal. Birchett v. State, 291 Ark. 379, 724 S.W.2d 492 (1987). It was not until after appellant was convicted in the case at bar that one of his other convictions was reversed. Therefore, the trial court did not commit error, and we will not reverse.

After affirmance of this direct appeal, the appellant can petition for post conviction relief and ask that his original sentence be modified if, in fact, it is in excess of the maximum authorized by law. A.R.Cr.P. Rule 37.1; Birchett v. State, supra.

Finally, appellant argues that due to the combination of the delay in bringing this matter to trial, and the lack of investigation by the public defender who was originally appointed to represent him, his sixth amendment right to a speedy trial was denied. The argument has no merit.

Appellant admits that he was tried within the time limits set out in A.R.Cr.P. Rule 28, but still argues thát he was denied a speedy trial because he lost the exculpatory testimony of two witnesses due to the ineffectiveness of the public defender. In Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980), we explained:

The rules set out in Article VIII of the Rules of Criminal Procedure were an effort to more precisely define what constitutes a “speedy trial” in the interest of persons accused of crime and the public and in dear recognition of Barker v. Wingo, supra. We perceive that there may be a denial of one’s constitutional right to a speedy trial after a period of delay shorter than those permitted under Rules 28 and 30, but a much stronger showing of prejudice would be necessary than that made here to overcome the presumption that a time within the prescribed limits of these rules meets constitutional requirements.

Appellant has not overcome the presumption that a trial occurring within the time limits set out in Rule 28 meets constitutional requirements because he has not shown any prejudice. The two witnesses from whom he claims to have lost exculpatory testimony are Roy Moore and a lady with whom he claims to have been conversing in a coffee shop at the time of the robbery. Roy Moore is the identification witness discussed previously under appellant’s second point of appeal. As discussed under that point, appellant did not show what efforts, if any, were made to procure this witness. We do not know whether his testimony was lost due to ineffective counsel or lack of a speedy trial, or other reasons. The appellant located the lady in the coffee shop, but she did not remember him. There is absolutely no basis for finding that she would have remembered him even if she had been contacted earlier. In order to establish ineffectiveness of counsel, appellant has the burden of showing that counsel’s conduct fell below an objective standard of reasonableness, and that but for counsel’s conduct, he would not have been convicted. Strickland v. Washington, 466 U.S. 668 (1984). Appellant has fallen far short of meeting that burden under the facts of this case.

Affirmed.


text:
    Dale KING and Marcel KING v. D.J. KING and Emilene KING and Ronnie TUGGLE and Dale KING and Marcel KING v. Ronnie TUGGLE
    86-293
    730 S.W.2d 224
    Supreme Court of Arkansas
    Opinion delivered June 1, 1987

      Paul Petty & Robert Meurer, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., for appellee D.J. and Emilene King.

      Matthews & Sanders, by: Marci L. Talbot, for appellee Ronnie Tuggle.
   Robert H. Dudley, Justice.

The appellants, plaintiffs below, Dale King and her minor son Marcel King, filed suit for recovery of medical expenses paid by the mother, Dale King, on behalf of her son, Marcel, and for injuries suffered by Marcel when he wrecked a three-wheeled motor vehicle. They sued Marcel’s grandfather and grandmother, D.J. King and Emilene King, for failing to properly supervise Marcel, and for allowing him to operate the three-wheeled vehicle. In a separate suit they sued the owner of the vehicle, Ronnie Tuggle, for negligence in allowing Marcel to operate the vehicle. The separate cases were consolidated for trial. At the conclusion of the plaintiffs’ case-in-chief, the trial court directed a verdict against both plaintiffs. We affirm.

The appellants failed to abstract the pleadings, the findings of fact, the argument and the detailed ruling on the motion for a directed verdict, and submitted only a cryptic two and one-half page abridgement of all of the testimony. We find the appellants’ abstract to be wholly deficient, but, as we have explained, if the appellee considers the appellants’ abstract to be deficient, he has the option of supplying the deficiency or leaving it unsupplied. Ark. Sup. Ct. R. 9(e), and Brace v. Busboon, 261 Ark. 556, 549 S.W.2d 802 (1977). Here, the grandparentappellees elected to submit a proper abstract on the claim of Marcel, thereby waiving any objection to the defect in his appeal. Pursuant to Rule 9(e) and the certificates of costs and attorneys’ fees submitted by the grandparents’ attorneys, we allow $92.90 as printer’s costs and $552.00 as attorneys’ fees to be taxed as extra costs against the appellants. The grandparent-appellees did not remedy the deficiencies in the abstract on the claim of the appellant-mother, Dale King, and therefore, on her appeal against the grandparents, we affirm the directed verdict under Rule 9(e). The appellee-owner of the three-wheeled vehicle, an entirely separate defendant in a consolidated case, elected not to cure the deficiency, which is best demonstrated by the fact that there is no mention whatsoever of the appellee-owner in the abstract of testimony. The consolidated case against the appelleeowner is therefore affirmed for failure to comply with Rule 9(d). In summary, all of the claims are affirmed for failure to comply with Rule 9(d), except the claim of Marcel King against his grandparents, D. J. King and Emilene King, which we consider on the merits because the appellee-grandparents supplied the deficiency under Rule 9(e).

The appellee-grandparents did not file an ARCP Rule 12(b)(6) motion for failure to state facts upon which relief can be granted, nor a Rule 12(c) motion for judgment on the pleadings on the basis of the family immunity doctrine. See Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938); Brown v. Cole, 198 Ark. 417, 129 S.W.2d 245, 122 A.L.R. 1348 (1939); Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980); and Attwood v. Estate of Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982). Accordingly, we need not decide if the family immunity doctrine is applicable to the facts of this case.

The only issue before us is whether the trial court erred in directing a verdict against Marcel in his claim against his grandparents.

In an appeal from a directed verdict for a defendant, we are bound to give the evidence its highest probative value in favor of the plaintiff, together with every inference reasonably deducible from that evidence. Ikani v. Bennett, 284 Ark. 409, 682 S.W.2d 747 (1985). From that viewpoint, the facts are as follows: Marcel, aged 13, was a hyperactive child with a short attention span; he was developmentally younger than his chronological age; he presented problems in discipline and control; and his grandparents were familiar with his problems.

At his parents’ request, Marcel was visiting his grandparents for the weekend. Some of Marcel’s older cousins were also there. One of them owned a motorcycle and another borrowed the three-wheeler. Marcel’s parents had instructed him not to ride on any motorcycle or three-wheeler. His parents also instructed the grandparents not to allow him to ride on either type of machine.

On the day of the accident, the grandfather, who was to watch the children, had been around his house, out in the yard, and, at the time of the accident, was nearby checking his cattle. He never left the immediate vicinity of the home. Marcel knew he was not to ride on either machine, much less drive one of them. Still, unknown to either grandparent, he drove the three-wheeler and wrecked it.

The appellant argues:

In the case at bar, the minor plaintiffs father had repeatedly warned the defendants not to allow the minor plaintiff to ride the three-wheeler. Obviously, the defendants should have foreseen an appreciable risk of harm to the minor plaintiff in allowing him to ride the three-wheeler.

[Emphasis added.]

The short answer to that argument is that the grandparents did not allow Marcel to ride on the vehicle. Neither grandparent saw him on a machine nor had any knowledge that he was on the machine. He simply slipped away from them.

The appellant next argues that the grandparents were negligent in not “securing” the vehicle so that Marcel could not drive it. We do not think the argument is valid. The three-wheeled vehicle had been borrowed from a neighbor by Marcel’s seventeen-year-old cousin. The cousin was an experienced driver. The grandfather was not under a duty to padlock a three-wheeled vehicle owned by a third person and being operated by a seventeen-year-old who was an experienced driver. There simply was no evidence of negligence. The trial court correctly granted the verdict for the appellee-grandparents.

Affirmed.

Newbern, J., not participating.


author: Robert H. Dudley, Justice. Jack Holt, Jr., Chief Justice,

text:
    PULASKI COUNTY CIVIL SERVICE COMMISSION v. Rhonda DAVIS, et al.
    86-268
    730 S.W.2d 220
    Supreme Court of Arkansas
    Opinion delivered June 1, 1987

      Ivester, Henry, Skinner & Camp, by: Stephen L. Curry, for appellant.

      Robert A. Newcomb, for appellee.
   Robert H. Dudley, Justice.

The appellant Pulaski County Civil Service Commission promulgated rules which set educational standards as a prerequisite for the promotional testing of employees of the Pulaski County Sheriffs Department. Under those rules any employee seeking testing for promotion in the Corrections Division of the Sheriffs Department in 1984 and 1985 must have had a high school degree or general education degree; in 1986 and 1987, must have six college semester hours; in 1988 and 1989, must have fifteen college semester hours; in 1990 and 1991, must have thirty college semester hours; in 1992, and afterwards, must have sixty college semester hours. Similar, but higher, educational standards were set for employees seeking testing for promotion in the Enforcement Division. The appellees, all employees of the Sheriffs Department, sought promotional testing but did not meet the educational standards. They filed suit and argued that the rules setting the educational standards were contrary to the state statute and, therefore, invalid. The trial court ruled that the governing statute does not permit the consideration of education as a standard for promotion. We affirm.

The parties agree that Ark. Stat. Ann. § 12-1124 (Repl. 1979) is the statute which governs a civil service commission’s promotion of employees within a county sheriffs office. We have never interpreted that statute, but have interpreted an almost identical one, Ark. Stat. Ann. § 19-1603 (Repl. 1980), which governs the criterion for a civil service commission’s promotion of officers within a city police department. Both statutes provide that a commission shall adopt rules “for promotion based upon open competitive examinations of efficiency, character or conduct.” In interpreting this language, as it applied to police departments, under Ark. Stat. Ann. § 19-1603, we said the statute provides that promotion shall be made solely on the basis of competitive examination. “There is no provision authorizing any other criterion. . . Bradley v. Bruce, 288 Ark. 342 at 343, 705 S.W.2d 431 at 432 (1986). In this case, the Commission’s use of college hours as a prerequisite for promotion eligibility was the use of a criterion other than the competitive examination and, therefore, fails to comply with the statute.

The Commission’s argument that college education of employees of the Sheriff’s Department is desirable is an appealing argument, and it could be that the insertion of this criterion would not alter the objectivity of the results. However, once the General Assembly has expressed its will, as it has done in this case, this Court has bound itself to adhere to it. Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979).

Affirmed.

Hays, J., not participating.

Holt, C.J., and Purtle,. J., dissent.

Jack Holt, Jr., Chief Justice,

dissenting. The majority interprets Ark. Stat. Ann. §§ 12-1124 and 19-1603 as providing that promotions shall be made solely on the basis of competitive examinations. I disagree with that interpretation and with this court’s prior holding to that effect in Bradley v. Bruce, 288 Ark. 342, 705 S.W.2d 431 (1986).

Section 12-1124 provides in pertinent part:

The commission shall adopt rules as follows:

(a) For the qualifications of each applicant for appointment to any position in the sheriff’s department;. . .
(i) For promotion based upon open competitive examinations of efficiency, character and conduct, lists shall be created for each rank of service and promotions made therefrom as provided herein, and advancement in rank or increase in salary beyond the limits fixed for the grade by the rules of said commission shall constitute a promotion.

The wording of § 19-1603 is almost identical.

In Bradley, this court discussed § 19-1603, stating, “[t]he statute specifically provides that promotion shall be made on the basis of the examination. There is no provision authorizing any other criterion, including seniority. Any other reading of the law would negate its purpose which is to promote those eligible who score highest on the test.”

I think the majority in both decisions misinterprets the intention of the legislature. Both statutes vest the civil service commission with the authority to adopt rules on certain subjects. Through rules the commission can establish “the qualifications of each applicant for appointment to any position” (emphasis added) and “promotion based upon open competitive examinations.” The commission has done just that. They have set out educational qualifications for anybody desiring to fill any position in the sheriff’s department, whether they are newly hired, transferred from another department, or seeking a promotion. Considering the variety of jobs available within the sheriff’s department, obviously all of the positions are not filled by identically qualified people. The qualifications established by the commission are for the job. Accordingly, the applicant for the promotion must first be qualified for the job that he or she seeks. If the job being sought entails a promotion, the commission has provided for a competitive examination.

The court in Bradley stated that the purpose of the law “is to promote those eligible who score highest on the test.” (Emphasis added) .Tobe eligible,a person must meet the other qualifications established by the commission pursuant to the statute. Here, those other qualifications were educational requirements.

I would reverse the trial court.

Purtle, J., joins in this dissent.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice, Steele Hays, Justice,

text:
    Donna SCHLEMMER v. FIREMAN’S FUND INSURANCE COMPANY
    86-256
    730 S.W.2d 217
    Supreme Court of Arkansas
    Opinion delivered June 1, 1987

      Hale, Fogleman & Rogers, for appellant.

      Rieves & Mayton, by: Elton A. Rieves, IV, for appellee.
   Robert H. Dudley, Justice.

This case involves a choice-of-law question. On the night of May 9,1981, when the substantive law of Arkansas still contained a guest statute, the plaintiff, Donna Schlemmer, drove her car from Memphis, Tennessee, to the home of Rochelle Smith in West Memphis, Arkansas. There, plaintiff and Rochelle got into an uninsured vehicle, which was owned by Rochelle’s sister, and drove to a party at another location in West Memphis. They drank some beer and, at about 10 p.m., plaintiff told Rochelle that she wanted to go home. Rochelle did not want to leave the party, but ultimately consented to drive the plaintiff back to her car. Rochelle drove 55 to 60 miles per hour on the service road to the Interstate Highway in West Memphis, where the speed limit is 45 miles per hour. It started raining, and the windshield wipers would not operate. Plaintiff asked Rochelle to slow down, but Rochelle replied that plaintiff wanted to go to her car and that’s where they were going. Shortly afterwards, Rochelle lost control of the car, wrecked it, and injured plaintiff. Plaintiff and her stepfather were both residents of Memphis. Plaintiffs stepfather had purchased automobile insurance on his car, which was registered in Tennessee, from a Memphis insurance agent. The policy was issued by the defendant, Fireman’s Fund Insurance Company. Tennessee did not have a guest statute at the time of the accident. Plaintiff filed suit against the defendant insurance company, contending that it was liable under her stepfather’s uninsured motor vehicle coverage provision. The defendant insurance company filed a motion for summary judgment in which it contended that the plaintiff was not a covered person under her stepfather’s policy, and, alternatively, that the Arkansas guest statute barred recovery by the plaintiff. The trial court held Arkansas law was applicable to the tort phase of the case and that, as a matter of law, the guest statute barred recovery because the driver of the car was not driving in willful and wanton disregard of the rights of others. Because of the holding on the guest statute, it was not necessary for the trial court to decide whether plaintiff was a covered person under the terms of the insurance policy. The Court of Appeals certified the case to this Court under Rule 29(l)(o). We reverse and remand.

Appellant’s first argument is that the trial court erred in applying the substantive Arkansas law, and concomitantly the guest statute, to the tort phase of the case. The argument is meritorious.

For many years this Court, like others, used mechanical rules, such as the rule of lex loci delicti, to answer conflict questions. However, in 1966 Dr. Robert A. Leflar began to write about the more flexible “choice-influencing considerations.” See Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U. L. Rev. 267 (1966); Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 Calif. L. Rev. 1584 (1966); R. Leflar, American Conflicts Law, Chapter 11, (1968); Leflar, Conflict of Laws: Arkansas—The Choice-Influencing Considerations, 28 Ark. L. Rev. 199 (1974). Other states quickly adopted Dr. Leflar’s concept of the choice-influencing considerations. Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966), noted in 20 Ark. L. Rev. 359 (1967); Health v. Zillmer, 35 Wis. 2d 578, 151 N.W.2d 664 (1967); Mitchell v. Craft, 211 So. 2d 509 (Miss. 1968). We adopted the approach in Wallis v. Mrs. Smith’s Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977), and have continued to use the approach. Williams v. Carr, 263 Ark. 326, 565 S.W.2d 400 (1978).0

The five choice-influencing considerations are:

(1) Predictability of results,
(2) Maintenance of interstate and international order,
(3) Simplification of the judicial task,
(4) Advancement of the forum’s governmental interests, and
(5) Application of the better rule of law.

In applying the considerations to the facts of the tort phase of this case, we reach the following conclusions:

(1) Predictability of results: As with other accident cases, the predictability consideration had no bearing on the unplanned injury. See Leflar, Conflict of Laws: Arkansas—The ChoiceInfluencing Considerations, 28 Ark. L. Rev. 199 (1974). However, the plaintiff was a resident of Tennessee and the defendant insurance company issued its policy in Tennessee, and the premium calculation was probably made upon casualty experience under the automobile liability laws of Tennessee. To that limited extent, Tennessee law is the most relevant under this consideration. See Leflar, Conflict of Laws: Arkansas—The Choice-Influencing Considerations, id.

(2) Maintenance of interstate and international order: Free highway traffic between the states will not be lessened, nor will either states’ concern with its sovereignty be affected by the choice of either state’s law. Neither of the states’ laws is favored under this consideration.

(3) Simplification of the judicial task: The trial court’s task will not be unduly complicated by the application of the law of either state. Tennessee does not have a guest statute. Arkansas had a guest statute until it was repealed by Act 13 of 1983. Arkansas courts regularly try car accident cases and either apply the guest statute, or do not apply it, depending solely on whether the accident occurred before or after repeal of the guest statute. There will be no difficulty encountered by the forum court in trying the case without using a guest statute. Neither of the states’ laws are favored under this consideration.

(4) Advancement of the forum’s governmental interest: As previously set out, the General Assembly expressly repealed the guest statute after this accident occurred and, therefore, the state’s policy is now against the application of the guest statute. To that extent, Tennessee law is the most relevant.

(5) Application of the better rule of law: There is no doubt about which law we regard as the better law. The Arkansas guest statute in effect at the time of this accident was archaic and unfair. We find a thirteen year old paragraph by Dr. Leflar is still timely and appropriate for this case.

It must not be automatically assumed that every court will regard its own law as better than that of other states. Courts sometimes realize that certain of their own laws, especially statutory ones, are archaic, anachronistic, out of keeping with the times. Specifically, that may be their attitude toward their automobile guest laws. Despite nationwide lobbying efforts in the 1920’s and 1930’s, half of the state legislatures did not enact them, and no state has enacted one since the 1930’s. Some states have recently repealed them, though it is not as easy to repeal an archaic statute as it would be to prevent its current enactment if it were not already law. Four states have recently held their guest statutes to be unconstitutional on the ground that they deny the equal protection of the laws to injured persons in discriminatory fashion. [Footnotes omitted.]

Leflar, Conflict of Laws: Arkansas—The Choice-Influencing Considerations, 28 Ark. L. Rev. 199, 215 (1974).

Under this consideration, Tennessee’s law is the better law.

After considering and weighing all five choice-influencing considerations, it is clear that the Tennessee law should be applied to the tort phase of this case.

Reversed and remanded.

Hickman and Hays, JJ., dissent.

Glaze, J., concurs.

Darrell Hickman, Justice,

dissenting. I cannot say that Tennessee law is the better law simply because we had the guest statute. We upheld the statute repeatedly until it was repealed by the legislature. It prevented innumerable civil cases between friends whose friendships ceased when money was at stake.

The insurance policy was issued in Memphis, Tennessee. The suit was filed in Arkansas by the Tennessee resident. She could have sued in Tennessee. The accident occurred in Arkansas in an Arkansas vehicle driven by an Arkansas resident. Arkansas law should be applied to this case.

I would affirm the trial court’s decision.

Steele Hays, Justice,

dissenting: I have no disagreement with applying Tennesseé law to a dispute between a Tennessee resident and a Tennessee insurer over the coverage of an insurance policy issued in Tennessee, assuming Arkansas has jurisdiction to decide the issue. But with respect to the liability of Rochelle Smith to Donna Schlemmer, the majority opinion concludes that Tennessee law applies and with that I disagree.

I burn no candles for the guest statute, but it was the law of this state when the accident occurred and it governs any claim of Donna Schlemmer against Rochelle Smith, or any claim dependent thereon. When a resident of another state comes to Arkansas, enters an Arkansas based vehicle, owned and operated by an Arkansas resident, for a trip wholly local in character and never intended to be otherwise, I have no doubt but that Arkansas law governs issues of tort liability.