author: ANDREE LAYTON Roaf, Justice. Tom Glaze, Justice, ROBERT L. Brown, Justice, Michael E. Stubblefield, Special Justice,

text:
    Rickey PARKER v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY
    95-1134
    935 S.W.2d 556
    Supreme Court of Arkansas
    Opinion delivered December 23, 1996
    [Petition for rehearing denied January 27, 1997.]

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

      John Richard Byrd, Sr., for appellee.
   ANDREE LAYTON Roaf, Justice.

This is an insurance case. Rickey Parker sued Southern Farm Bureau Casualty Insurance Company (“Farm Bureau”), contending that an insurance policy Farm Bureau issued to him covered losses he sustained in an automobile accident. Farm Bureau denied coverage, claiming that the policy issued to Parker had expired due to nonpayment of the premium. The trial court granted summary judgment to Parker on the issue of coverage, and granted summary judgment to Farm Bureau on Parker’s bad-faith claim. Parker asserts on appeal that the trial court 1) impermissibly limited the scope of discovery, 2) erroneously dismissed his bad-faith claim, and 3) arbitrarily reduced his request for attorney’s fees. On cross-appeal, Farm Bureau argues that the attorney’s fees should have been further reduced. We affirm on appeal and on cross-appeal.

The facts which led to this litigation may be summarized as follows. Farm Bureau issued an automobile insurance policy to Parker on June 6, 1993. The policy was for a six-month term, from September 9, 1993, through December 9, 1993, with a total premium of $745.35. Parker elected to pay the premium in quarterly installments, and made the initial payment of $377.77 at issuance of the policy.

Farm Bureau mailed Parker a “Billing Notice” on August 11, 1993, advising him that his quarterly payment was due, that his coverage would expire on September 9, 1993, if the payment was not made, and that he would receive no further renewal notice. Farm Bureau did not receive Parker’s payment by September 9, 1993. Although Parker’s check register indicated that he wrote a check to Farm Bureau for the premium on September 2, 1993, this check never cleared his bank.

Parker’s daughter was involved in a two-vehicle accident while driving one of Parker’s insured vehicles. She was at fault in the accident. Parker’s vehicle was damaged in the amount of $1,456.21, and the other vehicle sustained damages in the amount of $439.70. Parker reported the accident to his Farm Bureau agent on September 17, 1993, and also filed a claim for his losses.

On September 22, 1993, Farm Bureau mailed Parker a “Cancellation Reminder Notice” informing him that his policy was canceled September 9, 1993, because the quarterly premium had not been paid. The notice invited Parker to reinstate his coverage. Parker took the notice to his Farm Bureau agent on September 27, 1993, and also showed the agent his check register with the notation of a check for the September 2 premium payment. Parker paid the premium on September 27, and his Farm Bureau agent attempted to reinstate Parker’s coverage effective September 9, 1993. However, Farm Bureau’s underwriting department refused to allow the retroactive reinstatement and instead reinstated the policy effective October 4, 1993.

Parker’s efforts to settle the claim with Farm Bureau were unsuccessful, and he filed suit against the company on July 13, 1994. Parker sued Farm Bureau for failure to comply with the terms of his policy and with Ark. Code Ann. § 23-89-304 (Repl. 1992), which requires ten days’ notice of cancellation for nonpayment of insurance premiums. Parker also asserted a claim for the first party tort of bad faith for the failure to pay his claim. He sought recovery for the damages to his vehicle, statutory penalty, attorney’s fees, punitive damages, and a declaratory judgment that Farm Bureau was required to pay the damages sustained by the other driver.

The trial court granted Parker summary judgment on the issue of insurance coverage, finding that Farm Bureau failed to comply with the ten-day notice requirement. The trial court granted Farm Bureau summary judgment on the bad-faith claim. Parker was awarded $1,403.73, which included the twelve percent statutory penalty, and attorney’s fees in the amount of $10,676. Farm Bureau was also adjudged liable for the other driver’s damages of $439.59.

Parker appeals from the dismissal of his bad faith claim and from the trial court’s award of less than the requested attorney’s fees. Parker also asserts that the trial court erroneously limited the scope of discovery, which he needed to establish his claim of bad faith. Farm Bureau cross-appeals the trial court’s award of attorney’s fees.

Although Farm Bureau does not appeal the award of summary judgment on the issue of coverage, it is necessary to review the basis of the trial court’s ruling on this question in order to address Parker’s arguments regarding his bad-faith claim. Parker’s policy was for a six-month period, and the declaration sheet issued stated that the policy period was June 9, 1993, through December 9, 1993. The trial court based its award of summary judgment upon Farm Bureau’s failure to comply with the notice provision of Parker’s policy and with the ten-day notice required by Arkansas statute. This statutory notice requirement is found in the subchapter dealing with cancellation and nonrenewal of automobile liability, physical damage and collision policies, and provides as follows:

No notice of cancellation to any named insured shall be effective unless mailed or delivered at least twenty (20) days prior to the effective date of cancellation, provided that, where cancellation is for nonpayment of premium, at least ten (10) days’ notice of cancellation accompanied by the reason therefor shall be given.

Ark. Code Ann. § 23-89-304(a)(2) (emphasis added).

Parker’s policy contained a provision entided “Cancellation,” which essentially tracked the statutory notice provision, and provided as follows:

If we cancel your policy, for nonpayment of premium, we will notify you in writing at least ten (10) days before the date of cancellation. If we cancel your policy for any other reason we will notify you in writing at least twenty (20) days before the date of cancellation. . . . The policy period will end of the date and time stated in the notice.

(Emphasis added.) The policy contained a further provision concerning renewal premium and policy periods:

Your Declaration or renewal certificate will show the policy period. Unless cancelled, this policy may be renewed at our option if the required premium is paid by you and accepted by us. Failure to pay on time will end coverage. If your policy does expire and you send a later payment of the required premium, we may reinstate at our option, as of the date and time the payment is received. A new policy period is then established.

The only notice Farm Bureau sent to Parker prior to cancellation of his policy was the following “Billing Notice,” sent twenty-seven days before his quarterly installment payment was due:

It is time to make your quarterly premium payment on your auto policy. Please accept this notice that your coverage is due to expire 12:01 am, 09-09-93. To keep your coverage in force please mail us your payment before that date. In order to reduce expenses this will be the only renewal notice you will receive. . . .

Farm Bureau insisted to the trial court and continued to assert on appeal that Parker only purchased insurance for three months, and that the statutory notice of cancellation thus did not apply to a policy which expired by its own terms. Farm Bureau also maintained, alternatively, that the billing notice sent to Parker satisfied the statutory notice requirement. The trial court found that Farm Bureau’s reliance on the case of Farmers Ins. Co. v. Hall, 263 Ark. 734, 567 S.W.2d 296 (1978), was misplaced because in Hall, this court held that the ten-day cancellation notice was not required where a policy expired on its own terms because the insured failed to pay a renewal premium before the policy expiration date. The holding in Hall was thus not applicable to cancellation for failure to pay an installment payment. Farm Bureau did not appeal the grant of summary judgment on this issue and finally admitted during oral argument before this court that it had failed to comply with the statutory notice requirement. With this background in mind, we turn to the arguments which Parker raises regarding his claim of bad faith.

1. Restriction of discovery.

Parker first argues that the trial court erroneously restricted his efforts to discover certain records maintained by Farm Bureau which were relevant to his claim of bad faith. This argument concerns two discovery requests which must be addressed separately.

A. Farm Bureau’s cancellation notices to other insureds.

During the course of discovery, Parker sought to obtain the twenty most recent notices mailed by Farm Bureau to its insureds giving notice of its intent to cancel automobile insurance for nonpayment of premiums. On appeal, Parker argues that the notices might contain evidence of Farm Bureau’s bad faith in denying his claim if other insureds similarly situated received the ten-day cancellation notice. Parker had earlier discovered that Farm Bureau maintained a dual system of billing. Farm Bureau admitted to the dual system during discovery, provided Parker with copies of the two types of notices sent to its insureds, and its employees explained the system in great detail during depositions. According to Farm Bureau, the type of notice sent to its policyholders depended on whether or not “clean billing” was involved. Farm Bureau defined clean billing as quarterly, semi-annual, or annual billing of renewal and installment premiums, where no change had been made in the policy. The only notice sent in that instance was the “Billing Notice” like the one sent to Parker, approximately thirty days prior to the due date of the renewal or installment premiums. A notice of cancellation was not sent until twelve days after the termination of the coverage.

Farm Bureau used a different procedure when it was necessary to send an additional bill during the term of the policy for reasons such as the addition of a vehicle, driver, or coverage, or the insured’s failure to pay Farm Bureau dues. These policyholders received a bill for the additional premium approximately twenty-five days before the due date. If the additional premium or Farm Bureau dues remained unpaid twelve days after the due date, they were mailed a notice advising them that the policy would be cancelled in ten days if the additional payment was not received. Thus, the second category of policyholders received the statutory ten-day notice of cancellation, and in effect, twenty-two days after the due date to pay the premium and avoid cancellation of the policy, while Parker and policy holders similarly situated received no notice prior to cancellation.

Farm Bureau resisted discovery of the notices to its insureds as not relevant, and violative of the privacy rights of its policy holders. The trial court found that Parker had discovered how and why Farm Bureau billed some insureds differently from others, and thus the additional relevancy of the notices had not been shown. Parker argues that the trial court abused its discretion in denying him the right to inspect and copy these notices.

This court has long held that the trial court has wide discretion in matters pertaining to discovery and that a trial court’s decision will not be reversed absent an abuse of discretion. Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992) (citing Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W.2d 607 (1978)). Although we recognize the magnitude of the trial court’s discretion in discovery matters, we have found an abuse of discretion where there has been an undue limitation of substantial rights of the appellant under the prevailing circumstances. Rickett v. Hayes, 251 Ark. 395, 473 S.W.2d 446 (1971). A motion for production of documents must be considered in the light of the particular circumstances which give rise to it, and the need of the movant for the information requested. Marrow, supra.

Parker is correct in his assertion that in cases where the appellant is relegated to having to prove his claim by documents, papers, and letters kept by the appellee, the scope of discovery should be broader. Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W.2d 607 (1978). We consider this factor in deciding whether there has been an abuse of discretion in denying a discovery request. Id. The goal of discovery is to permit a litigant to obtain whatever information he may need to prepare adequately for issues that may develop without imposing an onerous burden on his adversary. Id.

In Marrow, this court held that the appellant’s discovery had been unduly limited, finding it significant that the appellant was in the position of having to prove his fraud case by the testimony of officers and agents of the insurance company, and by documents, papers, and letters, written and kept by the insurance company. That the information sought was not otherwise available to the party making the request, and that evidence pertaining to the issue, if there was any, would likely be in the files of the insurance company were said to be “very pertinent circumstances.” Id.

Clearly, the general principles articulated in Marrow are applicable to a claim of bad faith. However, the materials held discoverable in Marrow were directly related to the insurance claim at issue, and we stated in Marrow that this court has never sanctioned “an outright and unadulterated fishing expedition.”

Moreover, the fact remains that during the course of discovery Farm Bureau provided Parker with substantial information and material regarding the billing and notice procedures. Virtually all of the discovered evidence and deposition testimony corroborated Farm Bureau’s position that it did, in fact, have a dual billing-notice system with regard to what it defined as “clean billing,” as opposed to other billing situations involving a change in the policies. The trial court found this evidence significant in issuing the protective order for the notices.

Furthermore, Parker’s first request for the ten most recent cancellation notices was filed October 26, 1994, and his second request for the twenty most recent cancellation notices was filed January 20, 1995. Parker’s action for bad faith asserting failure to comply with the statutory notice provision was filed on July 13, 1994. However, he did not request cancellation notices issued by Farm Bureau to other policy holders prior to July 13, 1994. His cause of action for bad faith must exist and be complete at the time his lawsuit was filed, Elston v. Wilborn, 208 Ark. 377, 186 S.W.2d 662 (1945), and Parker does not show how notices sent after his lawsuit was filed would be relevant to his bad-faith claim.

As we stated in Marrow, supra, a motion for production of documents must be considered in the light of the particular circumstances which give rise to it and the need of the movant for the information requested. Given the particular circumstances and our standard of review, we cannot say that the trial court abused its discretion in granting the protective order.

B. Parker’s claim file.

Parker also sought to discover all Farm Bureau inter-office memoranda relating to his claim, to which Farm Bureau objected. Farm Bureau submitted Parker’s thirty-eight-page claim file to the trial court for an in camera inspection. The trial court determined that four pages of the file would not be discoverable, finding that they were prepared in anticipation of litigation under Ark. R. Civ. P. 26(b)(3).

The four pages of the claims file that the trial court found were prepared in anticipation of litigation were all inter-office memo-randa between two Farm Bureau employees, sent from November 22, 1993 to May 23, 1994.

On appeal, Parker argues that the four pages were not matters covered by the attorney-client privilege. However, Farm Bureau does not assert that the materials are protected by the attorney-client privilege, nor did the trial court base its ruling on attorney-client privilege. Instead, the trial court found that Parker had threatened suit in November of 1993, and “after that point in time, certain documents may have been prepared in anticipation of litigation or may reflect representatives of Farm Bureau’s legal theories concerning any defense to the threatened suit.”

Work product is not the same as a privilege which protects the sanctity of confidential communications. In discussing the attorney-client privilege and the work-product rule, this court has observed that “[t]he two rules and the principles upon which they are based, while susceptible to confusion, are separate and distinct.” Arkansas Nat’l Bank v. Cleburne County Bank, 258 Ark. 329, 525 S.W.2d 82 (1975).

The discoverability of an insured’s claim file under the work-product doctrine has been considered on many occasions by courts in other jurisdictions. However, Parker’s argument does not address the basis for the trial court’s ruling, and he consequendy provides no discussion of the rulings in these cases. We could dispose of this point in his appeal on the basis that he has offered no authority or convincing argument on this issue, however there is a further reason for upholding the trial court’s ruling in this instance. We have stated that a trial court has broad discretion in matters pertaining to discovery, and that discretion will not be second-guessed by the appellate court absent an abuse of discretion that is prejudicial to the appealing party. Wade v. Grace, 321 Ark. 482, 902 S.W.2d 785 (1995); Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991).

Here, the trial court found that Parker was not entitled to discover four pages out of a thirty-eight-page claim file. The four excluded pages provide in substance as follows:

— Page 16 — memo dated November 22, 1993. I had phone call -with Streetman [Parker’s attorney] on 11-18-93, forwarding dictated report. Since underwriting has determined insurance not in force, I am closing file.
— Page 15 — memo dated November 23, 1993. Streetman does not have proof that Parker wrote check, however, he feels that he has a strong circumstantial case. Streetman states that Parker’s check register shows that he wrote a premium check to Farm Bureau one week before expiration of the policy. Streetman asks us to reconsider, or he will litigate.
— Page 13 — memo dated May 11, 1994. I am enclosing under cover memo dated May 11, 1994, some evidence that Streetman feels is enough to win the case. I advised him that our position has not changed, Streetman indicated willingness to compromise.
— Page 12 — memo dated May 23, 1994. I contacted Streetman and advised him our position is unchanged unless they can produce the cancelled check.

Parker does not explain how these documents were pertinent to his claim of bad faith, nor does he argue that he was prejudiced by their exclusion. He simply asserts that the claim file is discoverable because it contains the evidence that he needs to show bad faith and that he should be allowed full, complete and unfettered access to his entire claim file. We cannot discern any information in these memos that Parker did not otherwise possess, and he has not shown that he was prejudiced by the trial court’s exclusion of these documents.

2. Bad-faith claim.

This court has stated that an insurance company may incur liability for the first-party tort of bad faith when it affirmatively engages in dishonest, malicious, or oppressive conduct in order to avoid a just obligation to its insured. R.J. Jones Excavating Contr. v. Firemen’s Ins., 324 Ark. 282, 920 S.W.2d 483 (1996); Employers Equitable Life Ins. Co. v. Williams, 282 Ark. 29, 665 S.W.2d 873 (1984). Stated another way, we have often explained that the tort of bad faith requires affirmative misconduct, without a good-faith defense; the affirmative conduct must be dishonest, malicious, or oppressive in an attempt to avoid the insurer’s liability under an insurance policy. See, e.g, Reynolds v. Shelter Mut. Ins. Co., 313 Ark. 145, 852 S.W.2d 799 (1993).

In the present case, Parker argues that his bad-faith claim is based on Farm Bureau’s intentional failure to comply with the statutory and policy provision requiring the ten-day notice of intent to cancel for nonpayment of premiums, and Farm Bureau’s intentional failure to give him a twelve-day grace period that it gave to some of its other insureds.

Parker contends that Farm Bureau engaged in oppressive conduct by persisting in its assertion that Parker had only a three-month policy, and that this policy was not cancelled, but had expired. He contends that Farm Bureau knew these assertions and its reliance on Hall, supra, were unfounded. Parker further suggests that Farm Bureau’s failure to appeal the summary judgment granted to him on the issue of coverage is evidence that Farm Bureau’s conduct was willful and intentional, and not based in good faith.

Parker points to numerous instances of Farm Bureau’s allegedly oppressive conduct throughout the course of the litigation by reference to positions taken in its pleadings, briefs, affidavits, and the depositions of its employees. The problem with Parker’s argument is that all of the evidence he points to occurred after his complaint was filed and during the course of the litigation. He points to no specific affirmative misconduct, other than the denial of his claim, and the refusal to retroactively reinstate his policy prior to the filing of his lawsuit on July 13, 1994. Nor does he explain how Farm Bureau’s conduct was “dishonest, malicious, or oppressive” prior to the filing of his lawsuit. Moreover, there is nothing in Parker’s abstract to indicate that he even asserted a claim for violation of the notice provisions prior to the filing of his complaint. In fact, the memoranda which the trial court excluded from discovery reflect that Parker’s position in settlement discussions with Farm Bureau as late as May, 1994, was that he had paid the premium before the cancellation of the policy.

The tort of bad faith cannot arise merely from the denial of a claim, without some affirmative misconduct. See Arkansas Mun. League Mun. Health Ben. Fund, 285 Ark. 419, 688 S.W.2d 720 (1985). It is also well-established that a cause of action must exist and be complete at the time the action is commenced. Elston v. Wilborn, 208 Ark. 377, 186 S.W.2d 662 (1945). The subsequent occurrence of a material fact cannot aid in maintaining it. Id. Therefore, none of the conduct by Farm Bureau after the filing of the complaint, including legal positions asserted, can provide a basis for Parker’s bad-faith claim. Farm Bureau’s dogged insistence on misapplying Hall could provide tangible evidence of bad faith had it occurred before Parker’s action was filed. However, it is not apparent from the abstract that the lack of notice was even raised by Parker prior to the filing of the lawsuit. Consequently, we cannot say that Farm Bureau’s action, albeit mistaken, in denying the claim for non-payment of premium constitutes dishonest, malicious, or oppressive conduct rising to the level of bad faith.

3. Attorney’s fee award.

Parker’s final point on appeal is that the trial court erred in arbitrarily reducing his requested attorney fees by one-third, from $16,096 to $10,676, and in failing to award reimbursement for reasonable trial expense.

On cross-appeal, Farm Bureau contends that the trial court abused its discretion by awarding the appellant $10,676 in attorney’s fees on a claim valued at only $1,646. Parker’s attorney submitted a bill to the trial court for attorney’s fees in the amount of $16,096. Pursuant to Ark. Code Ann. § 23-79-208 (Repl. 1992), which provides for attorney’s fees in loss claims, the trial court awarded $10,676 in fees, reducing the requested amount by one-third. The trial court found it significant that the matter was vigorously defended on both the bad-faith and notice issue, noting that the issues were “intricately connected,” and difficult to separate from one another. The trial court also made the following findings:

The court is convinced that some of the effort of Mr. Street-man in this case was directed toward the bad faith claim, which is a tort action rather than a contract action. The court’s opinion, based on what it has seen in handling the case to date, is that the claim for attorney’s fees should be reduced by one-third. . . .
* * *
The court is not unmindful that this figure is approximately five times the amount recovered, which is one of the factors to be consider in setting attorney’s fees. However, it is not the only factor, and when the time spent by Mr. Street-man . . . and the considerable vigour [sic] of the defense on the notice claim is measured in to the equation, the court finds the fee set reasonable.

On appeal, Parker argues that the fee should not have been reduced, and on cross-appeal, Farm Bureau asserts that the fee should have been further reduced by another third. In this regard, we have said that due to the trial court’s superior acquaintance with the record and the quality of the service rendered, we will usually defer to the trial court’s superior perspective in awarding attorney’s fees and will reverse only when there has been an abuse of discretion. Gill v. Transcriptions, Inc., 319 Ark. 485, 892 S.W.2d 258 (1995).

In Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829 (1969), this court upheld a $6,000 fee on a $51,000 recovery under Ark. Stat. Ann. § 66-3239. We stated that the amount of the fee should not be such that attorneys would avoid the type of litigation, or fail to sufficiently prepare, that the fee should be commensurate with the time and amount of work involved, and the ability present and necessary to meet the issues that arise in the case. Furthermore, the amount recovered in the action is a relevant consideration.

In Northwestern Nat’l Life Ins. Co. v. Heslip, 309 Ark. 319, 832 S.W.2d 463 (1992), this court affirmed a $19,500 fee on a $36,000 award pursuant to Ark. Code Ann. § 23-79-208. The court outlined the following factors as relevant in the determination of the fee: 1) experience and ability of the attorney; 2) time and labor required to perform the service properly; 3) amount involved and the result obtained in the case; 4) novelty and difficulty of the issues involved; 5) the fee customarily charged for similar services in the locality; 6) whether the fee is fixed or contingent; 7) the time limitations imposed upon the client in the circumstances; and 8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. Id.

In the present case, Parker submitted a detailed bill for 117.60 total hours. While it is virtually impossible to separate those services related to the coverage claim and those related to the bad faith claim, the large amount of the fee in relation to Parker’s recovery is obvious, and we have said that the amount recovered is a proper consideration.

Farm Bureau expresses policy concerns that other attorneys will bring frivolous bad-faith claims in coverage cases in order to recover a larger fee. Parker replies that because this was a relatively small claim, the conduct of Farm Bureau was especially egregious, and that the larger fee should be upheld in order to encourage competent attorneys to take on such small cases.

The trial court, in its order, considered these and all of the relevant factors presented in this case. We cannot say that there was an abuse of discretion in the award of the fee.

Affirmed on appeal and affirmed on cross-appeal.

Special Justice ELTON A. RlEVES, III, joins in this opinion.

JESSON, C.J., and Dudley, J., not participating.

Glaze, J., concurring.

Brown, J., and Special Justice Michael E. Stubblefield, dissenting.

Tom Glaze, Justice,

concurring. I agree that the trial court should be affirmed, but for a different reason than that set out in the majority opinion. The main substantive issue on appeal is whether the trial judge erred in dismissing appellant Rickey Parker’s bad-faith claim.

In making his decision, the judge had before him appellee Southern Farm Bureau Casualty Insurance Company’s theory that, under the holding in Farmers Ins. Company v. Hall, 263 Ark. 734, 567 S.W.2d 296 (1978), Southern Farm was not required to give an insured the ten-day cancellation notice provided in Ark. Code Ann. § 23-89-304 (Repl. 1992). In the Hall decision, Hall elected to renew his six-month liability policy which was to commence on January 3, 1975. However, he failed to pay his premium until January 25, 1975, shordy before his vehicle was damaged in a collision. Hall had previously received an “Offer to Renew” notice on December 11, 1974, from Farmers Insurance, informing him that the renewal date was January 3, 1975. Although the trial court held in Hall’s favor, finding his policy was still in force, this court reversed, holding the policy by its own terms had lapsed. The Hall court stated the following:

Appellant [Farmers Insurance] was not required to give notice of cancellation of the policy under Ark. Stat. Ann. §§ 66-4007 — 66-4013 (Supp. 1977) [now Ark. Code Ann. §§ 23-89-301 — 308 (Repl. 1992)]. There was no cancellation of the policy. If the offer to renew had not been made, the policy would have expired by its own terms. Notice of cancellation of a policy may be required upon nonpayment of the premium under § 66-4008, but this requirement applies only to a cancellation by unilateral action of the insurer before the end of the policy term and not an automatic termination by expiration of the policy period. (Emphasis added.)

In the present case, Southern Farm had established a billing system like Farmers Insurance in the Hall case, where a “renewal notice” was sent to the insured prior to the policy’s renewal or expiration date. Southern Farm’s contention was that Parker had paid only for three-months’ coverage, and Southern Farm, in good faith, had notified Parker prior to the three-month period that his policy would lapse, unless Parker had paid his six-month premium in full. Parker clearly failed to do so. Even so, the trial court still determined Parker’s policy was in force. The trial court held that Southern Farm’s interpretation of the Hall decision was wrong and that, while the company contended Parker’s policy was like a renewal policy such as the one in Hall, Parker’s policy, instead, was for a six-month term and only three months had expired. The trial court concluded that, unlike the Hall decision, Parker was not renewing his policy, and Southern Farm was required to give Parker the ten-day cancellation notice in § 23-89-304(a)(l) when he failed to pay the three-month premium balance owed on his policy.

Even though the trial court rejected Southern Farm’s legal theory concerning this ten-day notice issue, it decided the company’s argument had been made in good faith. In my view, to overturn the trial court’s decision would tend to chill legitimate legal arguments. While Parker is convinced Southern Farm’s argument was spurious, the trial court was not so sure (and neither am I), especially since Southern Farm’s theory was based upon legal precedent similar to the situation in this case. Also, while Parker seems convinced that Southern Farm’s failure to accept responsibility for Parker’s claim was personally and oppressively directed at him, Southern Farm had mailed Parker a timely “renewal notice” like the one utilized in the Hall case. That notice very clearly informed Parker that the notice was the only one he would receive if he intended to keep his coverage in force. Southern Farm’s “renewal notice” was based upon Hall, and even though it was ultimately held by the trial court to be invalid, that holding does not mean Southern Farm was in bad faith in adopting such a notice procedure. At least, I cannot say the trial court erred in reaching such a conclusion.

In other issues, Parker asserts the trial court erred in denying him certain discovery which might have led him to evidence bearing on the “bad faith” issue. For example, Parker claims that, if he could have obtained Southern Farm’s twenty most recent notices to its insureds who were to be cancelled for nonpayment of premiums, he might have been able to show if he was being treated differently from other insureds who were similarly situated.

I agree with Parker that our rules establishing discovery procedures should be given a broad and liberal interpretation. However, in reading Parker’s brief and listening to oral argument, I fail to understand the relevance of the information sought by Parker or how it could help his case. Undoubtedly, Southern Farm had established a dual-notice system which, when applied to Parker and others in his circumstances, the trial court held was invalid. That being said, I think the trial court was quite right in denying his discovery request.

ROBERT L. Brown, Justice,

dissenting. It is difficult to conceive of what could be more significant in bad-faith litigation than for an insured to be able to determine how other insureds in the same situation were treated by the carrier. The majority has decided that this information is not pertinent and that Parker in this case must give absolute credence to the carrier’s representation that uniform procedures relating to cancellations were followed in this case. I disagree. The essence of litigation is proof— not representations by an adversary of what should have been done. Parker ought not to be bound by what Farm Bureau states its general procedures were. He is entitled to go behind Farm Bureau’s statements to verify what in reality was done with regard to cancellations.

The majority characterizes this quest for verification as a “fishing expedition.” I cannot conclude that an attempt to confirm averred practices of an insurance carrier is anything of the kind. Farm Bureau holds the information. It has made statements under oath that it should be required to substantiate, and our rules and case law certainly support this conclusion.

Arkansas Rule of Civil Procedure 26(b)(1) permits discovery of all relevant information, which is defined as information which is non-privileged and which “appears reasonably calculated to lead to the discovery of admissible evidence.” The seminal case in this area is Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W.2d 607 (1978). In Marrow, the complaint was brought by the victim of a car accident against the insurance carrier of the tortfeasor for fraud in misrepresenting the amount of liability coverage. The victim moved for documents held by the carrier pertaining to the claim. The request was denied by the trial court, and summary judgment was entered in favor of the carrier. We reversed the summary judgment on the basis that discovery was impermissibly curtailed. First, we noted that the trial court has broad discretion in discovery matters and will only be reversed for abuse of that discretion. But we went further and stated that we would find abuse of that discretion when the substantial rights of the moving party are limited. We said:

In this case, we find an abuse of discretion in the denial of appellant’s last motion for production of documents. In so doing, we consider the fact that appellant, if he has any claim against State Farm, is placed in the position of having to prove it by the testimony of officers and agents of State Farm and by documents, papers and letters, written by them and kept by State Farm. In such a case, the scope of discovery permitted should be broader than otherwise and appellant here should be permitted to inspect any writing in the files of the insurance company which might lead to admissible evidence. See Connecticut Mutual Life Ins. Co. v. Shields, 17 FRD 273 (S.D., N.Y., 1955); Dow Chemical Co. v. Monsanto Co., 256 F.S. 315 (S.D., Ohio, 1966).

Marrow, 264 Ark. at 236-37, 570 S.W.2d at 613. See also Rickett v. Hayes, 251 Ark. 395, 473 S.W.2d 446 (1971); Heinrich v. Harp’s Food Stores, Inc., 52 Ark. App. 165, 915 S.W.2d 734 (1996); Ashmore v. Ford, 267 Ark. 854, 591 S.W.2d 666 (Ark. App. 1980).

The majority in the instant case hinges its truncation of discovery on two factors: (1) that the request is an outright and unadulterated fishing expedition; and (2) that Farm Bureau has a dual-billing system and, thus, was treating its insureds differently for cancellation-notice purposes. First, I disagree that this is an unadulterated fishing expedition for reasons already stated. Secondly, the fact that Farm Bureau gave different billing notices for Category X insureds involving renewal and installment premiums due versus Category Y insureds where additional premiums were assessed for changes in coverage, and only gave ten-day cancellation notices for Category Y insureds, does not resolve Parker’s dilemma. He wants to know whether any Category X insureds received cancellation notices for failure to pay when he did not.

Parker asked for the 20 most recent cancellation notices mailed by Farm Bureau to its insureds. When Farm Bureau moved for a protective order, Parker responded that he was entitled to this information “to see if [Farm Bureau] dealt with [the 20] differently than [himself].” At the first hearing on the discovery request, counsel for Parker argued to the court:

We think under the liberal discovery rules that we are enti-ded to that information. Were that not true, you could never really and completely prove the tort of bad faith for failure to pay insurance coverage because you need to see what the insurance company itself has done and said with regard to your file, your own claim, as well as how they have treated other or similarly situated claimants and whether they dealt with this plaintiff differently than they have dealt with other claimants, and was there some reason for that. This relates to both the last ten (10) notices of cancellation that they gave to their insureds for non-payment of premiums and to information from our own claim file. (Emphasis added.)

The trial court denied the discovery request due to irrelevance and granted the protective order.

What transpired next was the trial court’s grant of summary judgment on the bad-faith claim for the stated reason that “the court finds an insufficient factual basis to support it.” My response to that statement in the court’s order is that Parker was foreclosed, at least in part, from developing his factual basis.

Again, this was not a fishing expedition. Nor was it an effort to garner information merely for impeachment purposes. It was an attempt by Parker to verify essential representations by Farm Bureau that went to the heart of his bad-faith claim. If Farm Bureau in fact was treating him differently, this would comprise a vital element of his case and would be probative of dishonesty on the part of the carrier. I would not shut the door on this essential inquiry but would require Farm Bureau to support its representation made in sworn depositions that all insureds like Parker were treated the same. Finally, I am not troubled by privacy concerns for the 20 insureds. Redaction of names and other information that might identify those insureds could be easily accomplished, and the trial court could review the redacted notices in camera to assure privacy rights are protected.

Also, the majority focuses on the post-litigation point for the first time in its opinion. It was not raised at trial or by the parties in this appeal. The time frame for the notices to be discovered could have been fleshed out at the trial court level had not the door to discovery been shut and bolted.

I respectfully dissent.

Michael E. Stubblefield, Special Justice,

dissenting. I would affirm the trial court’s ruling on the issues of insurance coverage, the statutory twelve percent penalty, and attorney’s fees. But because I think the discovery in this case was unduly restricted by the trial court’s protective order, I would reverse and remand on the bad faith and discovery issues. Summary judgment is an extreme remedy which should only be granted when there is no factual dispute. When considering a motion for summary judgment, the court views the facts in the light most favorable to the party against whom judgment is sought, and when reasonable minds might differ as to conclusions to be drawn from the facts disclosed, a summary judgment is not proper. Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990). I think the facts in this case show that reasonable minds might differ as to conclusions to be drawn from the insurance company’s handling and denial of the plaintiff’s claim.

Unlike the majority, I am convinced that denial of a claim may be evidence of bad faith where, as here, the insurance company acknowledges that statutory law and its own policy require a ten-day notice of cancellation. As noted in Justice Glaze’s concurring opinion, the defendant insurance company in the instant case relied on the ruling in Farmers Ins. Co. v. Hall, 263 Ark. 734, 567 S.W.2d 296 (1978) for the proposition that it was not required to give the ten-day notice. But that stance was based on a plain misapplication of Hall to the facts of the instant case, and was inconsistent with the company’s admission in discovery that their policy language and the applicable statute, Ark. Code Ann. § 23-89-304(a)(2), required a ten-day notice of cancellation to the insured. Farm Bureau’s agents also admitted that no such notice was sent to the insured in this case. So the company’s alleged good-faith denial of coverage was based on a disingenuous argument which, I contend, is tangible evidence of bad faith.

And I believe that the trial court abused its discretion in denying the plaintiff the requested discovery of Farm Bureau’s cancellation notices sent to twenty other policyholders. The insured argued in the trial court that he should be allowed to make discovery of twenty cancellation notices sent to other insureds of the company who were similarly situated, but he was denied access by the trial court’s ruling that the requested discovery was irrelevant and, in any case, would violate the privacy of other policyholders. The insured’s effort to produce evidence of bad faith was thereby effectively foreclosed. The majority opinion condones that ruling as fair application of discovery rules and caselaw, but I agree with Justice Brown’s cogent analysis of the discovery issue in his dissent. Especially telling is his point that “[t]he essence of litigation is proof — not representations by an adversary of what should have been done.” If we accept the proposition that an insurance company’s disparate treatment of a policyholder in denying coverage may be shown to be oppressive or dishonest conduct rising to the level of bad faith, then a policyholder who has reason to suspect that he may have been treated disparately from other policyholders should be allowed reasonable access to defense documents which may show that his suspicions are accurate (or inaccurate). Even if characterized as a “fishing expedition” (with which characterization I disagree), discovery of twenty notices would not have been burdensome or oppressive for the insurance company. And if the insurance company’s defense was genuine and there was, in fact, no disparate or unfair treatment of the plaintiff, then the company’s good faith would have been established without doubt. As the trial court left it, the plaintiff was summarily overruled and outpowered.

Farm Bureau issued a six-month policy to the insured which was, according to the declaration page of the policy, to be effective through December 9, 1993. But the company took the position (and staunchly maintained it throughout this action and through oral argument on appeal), that the policy had lapsed for nonpayment of premium after three months. Insurance contracts are adhesion contracts in the truest sense of the word. 2 COUCH ON INSURANCE 3d § 22:11 (1995). The insurance company drafts the language and is in the best position to understand its meaning. Therefore, this court has long followed the majority rule that the intent to exclude coverage in insurance contracts should be expressed in clear and unambiguous language, and that such provisions are stricdy construed against the insurance company and liberally construed in favor of the insured. Nationwide Mut. Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307 (1993). Insurers and their legal counsel know this well. The trial court in this case found in the insured’s favor on the coverage question on grounds that Farm Bureau failed to comply with the ten-day notice requirement. The company has not appealed that ruling. Yet the company insisted throughout this litigation that it was genuinely defending its denial of coverage on the belief that it had fully complied with the ten-day notice required by policy language and Ark. Code Ann. § 23-89-304(a)(2). That argument is clearly untenable. Did it amount to bad faith? Was it dishonest, malicious, or oppressive under the analysis of Aetna Cas. & Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1984) and its progeny?

This court has stated that the tort of first-party bad faith requires a showing of dishonest, malicious, or oppressive conduct by the insurer in an effort to avoid contractual liability. Aetna Cas. & Surety Co. v. Broadway Arms Corp., supra; see also R.J. “Bob” Jones Excavating Contractor, Inc. v. Firemen’s Ins. Co., 324 Ark. 282, 920 S.W.2d 483 (1996); Employers Equitable Life Ins. Co. v. Williams, 282 Ark. 29, 665 S.W.2d 873 (1984). While the evidence in this case may have been insufficiently developed to prove absolutely the presence of bad faith, I posit that the denial of coverage notwithstanding the plain language of the policy is prima facie evidence of bad faith sufficient to avoid summary judgment. Farm Bureau denied coverage for a lengthy period of several months, at least enough time to force the insured to seek legal aid with his claim. His lawyer’s detailed billing record shows that considerable effort was expended to resolve the dispute over a minor claim, all of which was resisted by the insurer. And while the suit itself may have somehow encouraged the insurer to dig in its heels on the claim, that is not in itself sufficient justification for continuing to deny a claim. I do not think an insured’s filing suit can be fairly characterized, as the majority has suggested, as sufficient provocation of an insurer to shield the insurer from being found guilty of engaging in bad faith. Adversarial relationships are often spawned by the passage of time and what appears on the surface to be slight resistance. It is possible, rather, that Farm Bureau’s personnel, perhaps all the while smiling, consoling, and reassuring their policyholder of their personal regrets, were acting in bad faith. I disagree with the majority’s apparent belief that all evidence of bad faith must have occurred before suit is filed, or that it must be patent and striking. Such a belief would encourage all insurers “merely” to delay payment of claims and deny coverage long enough to provoke their insureds to file suit for recovery, after which the insurers are effectively insulated from bad-faith claims. That would be especially true in such a case as the one at bar, where a claim of less than $2,000 would produce a very slight penalty under the 12% provisions of Ark. Code Ann. § 23-79-208. I am of the opinion that inordinate foot-dragging and delay or unreasonable denial of coverage may be strong evidence of bad faith. I would let that issue go to the jury.

Therefore, I respectfully dissent.

       Sections 66-4008 and 4009, among other things, provided for ten-days notice of cancellation for nonpayment of premium.

      . Parker subsequently increased his request to the last 20 notices of cancellation.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Terrell Demond BAKER v. STATE of Arkansas
    CR 96-502
    934 S.W.2d 531
    Supreme Court of Arkansas
    Opinion delivered December 23, 1996

      Tell Hulett, for appellant.
   Per Curiam.

This is the appellant’s second motion for an extension of time to file a belated brief. The brief was originally due on June 8, 1996. Appellant’s counsel, Tell Hulett, filed the first motion for an extension of time on October 15, 1996. In the motion, he stated that our clerk’s office had directed all correspondence to an old address; thus he had not received a briefing schedule. We granted the motion by per curiam issued November 11, 1996. See Baker v. State, 326 Ark. 580, 931 S.W.2d 443 (1996). Since counsel had not made any inquiries regarding the case for more than five months after the record was filed, we forwarded a copy of our opinion to the Committee on Professional Conduct.

It appears that a copy of the November 11 per curiam was also sent to Mr. Hulett at his old address. That oversight has now been corrected by our clerk’s office. We will grant the second motion to file a belated brief. The brief is now due on January 2, 1996. However, we must, again, forward a copy of our opinion to the Committee on Professional Conduct. Counsel did not inquire about the status of the motion until November 25, 1996, nor has a brief been tendered at any time since the original due date of Tune 8, 1996.


author: Per CURIAM.

text:
    Albert BELL v. STATE of Arkansas
    CR 95-417
    935 S.W.2d 539
    Supreme Court of Arkansas
    Opinion delivered December 23, 1996

      Green, Henry, & Green, by: J. W. Green and Brad Green, for appellant.
   Per CURIAM.

Counsel file a belated motion for attorney’s fees more than five months after the mandate was issued in this appeal. Counsel’s reason for filing late was based on their impression that, because this court reversed this case with directions for a suppression hearing, they believed their services for appeal purposes would not end until the suppression hearing had been conducted. Counsel offer no citation of authority to support their belief, and we know of none. Alternatively, counsel request payment of fees for services rendered prior to the issuance of the mandate.

To be awarded attorney’s fees, counsel appointed in criminal cases must file a motion in accordance with Rule 6-6 of the Rules of the Supreme Court and Court of Appeals. That rule provides the motion shall be filed not later than thirty days after the issuance of the mandate.

Although our court has not had occasion to interpret the thirty-day time limit provision in Rule 6-6(c), the court of appeals has. See Houston v. State, 43 Ark. App. 167, 862 S.W.2d 292 (1993); Williams v. State, 42 Ark. App. 184, 854 S.W.2d 370 (1993); Terrell v. State, 32 Ark. App. 391, 676 S.W.2d 769 (1984); Stevanovich v. State, 10 Ark. App. 233, 662 S.W.2d 476 (1984); Christie v. State, 4 Ark. App. 33, 627 S.W.2d 34 (1982). The court of appeals’s most recent pronouncement concerning Rule 6-6 (c) in Houston is that, if no good cause for delay in filing a motion for attorney’s fee is given, it will deny fees filed more than sixty days after the mandate issues.

We believe Rule 6-6 (c) is quite clear in providing that appointed counsel shall file his or her motion for attorney’s fees not later than thirty days after issuance of mandate. Failure to comply with this thirty-day requirement precludes counsel’s entitlement to an award of attorney’s fees. The time constraints in Rule 6-6(c) are provided so the appellate courts can determine and meet their budgetary needs and expenditures for payment of costs and attorney’s fees. In addition, as stated by the Terrell court, considerations of efficient use of judicial time and resources require that we consider motions for fees while the briefs are in our possession and the case is fresh in our minds.

While we hold that, to be entitled to a fee, appointed counsel must file a motion for attorney’s fees not later than thirty days after issuance of mandate, we conclude this decision shall apply prospectively, since there has been some variance in the prior cases construing Rule 6-6 (c). To the extent the court of appeals’s prior decisions differ from our holding herein, they are overruled:

After a review of counsel’s motions and exhibits, we award a fee in the sum of $3,820.00.

       The Houston court gave no explanation why it utilized a sixty-day period.


text:
    BOARD of TRUSTEES for the City of Little Rock Police Pension Fund v. Mark STODOLA
    96-948
    934 S.W.2d 532
    Supreme Court of Arkansas
    Opinion delivered December 23, 1996

      Tell Hulett, for appellant.

      Winston Bryant, Att’y Gen., by: Patricia Van Ausdall, Asst. Att’y Gen., for appellee.
   Per Curiam.

On October 14, 1996, separate appellee Pulaski County filed a motion to dismiss this appeal because the appellant had failed to timely file its brief or to request an extension.

On October 15, 1996, Tell Hulett, counsel for the appellant, filed a motion for extension of time to file a belated brief. Hulett lodged the record on August 15, 1996, and according to Ark. S. Ct. R. 4-4(a) was required to file his brief by September 24, 1996. This court denied the motion to dismiss, granted the appellant an extension to file the brief, and ordered it due on November 18, 1996. Board of Trustees v. Stodola, 326 Ark. 581, 931 S.W.2d 443 (1996) (per curiam). As of today, Hulett still has not filed the brief nor has he been granted another extension.

On November 26, 1996, Hulett filed a second motion for extension of time to file a belated brief. Hulett again explains that he failed to file a timely brief because the Supreme Court Clerk did not notify him of the date on which his brief was due. The rules clearly state that the appellant must file a brief within forty days of lodging the record. Ark. S. Ct. R. 4-4(a). We reiterate that it is Hulett’s, not the court’s, responsibility to make himself aware of the date on which his brief was due.

The motion to file a belated brief is granted. A copy of this per curiam will be forwarded to the Committee on Professional Conduct.

Tell Hulett is hereby ordered to appear before this court on the twentieth day of January, 1997, at 9:00 a.m., to show cause why he should not be held in contempt of this court for his failure to file the appellant’s brief.


text:
    James CARRIGAN v. STATE of Arkansas
    CR 96-353
    934 S.W.2d 532
    Supreme Court of Arkansas
    Opinion delivered December 23, 1996

      Appellant, pro se.
   Per Curiam.

Appellant Carrigan filed his notice of appeal on December 20, 1995, and lodged the transcript on March 18, 1996. His attorney anticipated arguing on appeal that the trial court erred in refusing to grant a continuance. Appellant states that, even if he should prevail on such a tenuous point of appeal, he would be subjected to a new trial, and he does not wish to run the risks associated with a new trial. Consequently, he asks us to dismiss his appeal. We dismiss the appeal.

Carrigan’s attorney, David Mark Gunter, failed to file a brief in this matter. He was ordered to show cause why he should not be held in contempt for failure to file the brief. He appeared and pleaded guilty. He stated some valid mitigating circumstances, and, accordingly, we fix his fine at $50.00. A copy of this order will be forwarded to the Supreme Court Committee on Professional Conduct.


text:
    Robert MILLER v. STATE of Arkansas
    CR 96-1448
    934 S.W.2d 532
    Supreme Court of Arkansas
    Opinion delivered December 23, 1996

      Darrel Blount, for appellant.
   Per Curiam.

Robert Miller, by his attorney, has filed a motion for a rule on the clerk.

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

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

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


text:
    Johnny Mark PROPST v. STATE of Arkansas
    CR 96-633
    934 S.W.2d 533
    Supreme Court of Arkansas
    Opinion delivered December 23, 1996

      Joe F. Atkinson, Jr., for appellant.
   Per Curiam.

Appellant, Johnny Mark Propst, has been convicted of first-degree murder and sentenced to forty years’ imprisonment. His attorney, Joe F. Atkinson Jr., requested and was granted a thirty-day extension to August 13, 1996, to file Appellant’s brief, but no brief has been filed.

Joe F. Atkinson Jr. is therefore ordered to appear before this court on the 27th day of January, 1997, at 9:00 a.m., to show cause why he should not be held in contempt of this court for his failure to file Appellant’s brief in a timely manner.


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

text:
    Mark Ledale PHILLIPS v. STATE of Arkansas
    CR 96-1042
    936 S.W.2d 745
    Supreme Court of Arkansas
    Opinion delivered January 13, 1997

      Willia.m R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., for appellant.

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

The appellant, Mark Ledale Phillips, was convicted of rape and sentenced to forty years’ imprisonment. His sole argument for reversal is that the trial court erred in denying his motion to suppress identification testimony offered by the victim and three other State’s witnesses. We affirm.

At the close of the school day on March 15, 1995, the ten-year-old victim was walking from Forest Park Elementary in Little Rock to Forest Heights Junior High, where her mother worked as a teacher. As she was walking down Evergreen Street, she noticed that a black man wearing a black leather jacket, gloves, and jeans was behind some bushes. Thinking that the man was trimming the bushes, the victim continued walking toward her mother’s school. Just as she was passing some trash dumpsters behind the cafeteria of the junior high, the man grabbed her, placed his hand over her mouth, dragged her behind the dumpsters, and threw her down on the ground. Warning her to stay quiet, the man pulled her pants and panties down to her ankles, then pulled his own pants down to his ankles. The victim could see the man’s penis, which he placed inside her. The man had “touched inside her” for approximately three minutes before a janitor came out of the school building to throw something away in the dumpster, causing the man to get up and run away. After the man left, the victim pulled her clothes on and went inside the school to find her mother.

The victim reported the rape later that evening, and a police investigation ensued. Three witnesses came forward with helpful information. Norman Stanley was a City of Little Rock employee who was cleaning a ditch on “P” Street near the elementary school on March 15. At approximately 2:45 p.m., he saw a man dressed in a black shirt and black pants following a girl. Troy Green, a coach at Forest Heights Junior High, was walking to his car on the afternoon in question when he noticed a young man jump over a closed gate and hit the ground. Green asked the man, “Is there something wrong?” The man replied, “I’m going home,” then took off running.

At approximately 2:55 p.m. on March 15, Little Rock Narcotics Officer Ralph Breshears was driving northbound on University Avenue in between “H” Street and Evergreen Street when he noticed a black male dressed in a very thick black leather coat walking quickly up the street. Breshears thought it unusual that someone would be wearing a heavy coat on such a warm day. He also noticed the man’s unusual mannerisms, as he appeared to be in a hurry and was making very rapid head movements as if he was looking for something or someone.

On March 16, 1995, the day after the incident, Detective Delores Hanna Middleton of the Little Rock Police Department conducted a photographic lineup consisting of six pictures. The appellant’s picture was not included in this array. The victim picked two of the persons as “look-alikes” of the man who raped her. On March 17, 1995, the police received an anonymous tip that resulted in appellant becoming a suspect. Later on March 17, the victim viewed a second photographic lineup that included appellant’s picture. According to Detective Middleton, the victim pointed to Phillips’s picture and stated, “That’s him. I am a hundred percent sure.” This lineup was separately shown to Norman Stanley, Troy Green, and Ralph Breshears. All three witnesses identified appellant as the man they had seen on March 15.

Based on these identifications, appellant was charged with rape. Prior to appellant’s trial, he moved to have the pretrial identifications as well as any subsequent in-court identifications suppressed on the ground that the lineup was unduly suggestive. Following a hearing, the trial court denied the motion. At appellant’s bench trial, the victim, along with Mr. Stanley, Mr. Green, and Detective Breshears positively identified appellant. Mr. Stanley also identified the victim as the girl whom appellant had followed. The trial court found appellant guilty as charged, and, following a subsequent hearing, sentenced him to forty years’ imprisonment.

We will not reverse a trial court’s ruling on the admissibility of an in-court identification unless the ruling is clearly erroneous under the totality of the circumstances. Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996); Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996). In determining whether an in-court identification is admissible, we look first at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect; it is the appellant’s burden to show that the pretrial identification procedure was suspect. Id. A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. Id.

Appellant contends that the photographic lineup was unduly suggestive because he was the only person wearing an extremely dark shirt in the photo spread. While appellant was photographed wearing a purple shirt, he claims that his shirt was so dark purple that it appeared to be black. In denying appellant’s motion, the trial court observed that the photo spreads were “extremely well put together.” In viewing the pictures from this array, we cannot say that the lineup was unduly suggestive, nor can we conclude that the trial court’s ruling was clearly erroneous. First, even if we were to agree that appellant’s shirt appeared black rather than purple, we have held that a lineup is not per se unconstitutionaUy suggestive merely because only one person was wearing a piece of clothing similar to that worn by the offender. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992); Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984). Indeed, an accused is not entitled to have a lineup in which all the participants are identical. Wooten, supra; Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). In any event, all six men in the lineup were similar in appearance and had comparable facial features. Even more significantly, there is nothing in the lineup that would direct a witness toward appellant as the primary suspect. See Wooten, supra; King v. State, 323 Ark. 558, 916 S.W.2d 725 (1996). Finally, there has been no contention that Detective Middleton sought to influence the identifications by the methods she used in presenting the photographs. See King, supra.

Appellant also argues that the identifications were unreliable. As we do not determine reliability unless there is a very substantial likelihood of irreparable misidentification, we need not address this issue because we hold that the lineup was not unduly suggestive. Id. For the foregoing reasons, we hold that the trial court’s denial of appellant’s motion to suppress the identification testimony was not clearly erroneous.

Affirmed.


author: David Newbern, Justice.

text:
    Johnny BRADLEY v. STATE of Arkansas
    CR 95-895
    937 S.W.2d 628
    Supreme Court of Arkansas
    Opinion delivered January 13, 1997

      Honey & Honey, P.A., for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Johnny Bradley was convicted of rape and sentenced to life imprisonment. He was charged with engaging in sexual intercourse with a person, not his spouse, less than fourteen years old. Ark. Code Ann. § 5-14-103(a)(3) (Repl. 1993). Mr. Bradley seeks reversal of his conviction on the ground that hearsay testimony was erroneously admitted in evidence and' that the rape shield statute, Ark. Code Ann. § 16-42-101 (Repl. 1994), was erroneously applied to exclude testimony he wished the jury to hear. We hold that the hearsay statement fell within the exception to the hearsay rule found in Ark. R. Evid. 803(3), and the rape shield statute was properly applied.

The victim was seven years old when she revealed to a friend that Mr. Bradley had been engaging her in various sexual acts. The revelation resulted in a physical examination and a physician’s testimony that the victim’s vagina was like that of a sexually active married woman. Mr. Bradley was living with the victim’s aunt in whose home the victim frequently visited. The victim testified at the trial that Mr. Bradley had penetrated her vaginally, orally, and anally on many occasions.

1. The rape shield law

In a motion in limine the State anticipated an attempt by Mr. Bradley to introduce the testimony of a twelve-year-old cousin of the victim to the effect that he had engaged in sexual intercourse with the victim on several occasions, including during the last month in which Mr. Bradley was alleged to have engaged in sexual relations with her. The motion was taken under advisement.

After the State had presented the physician’s testimony concerning the appearance that the victim had apparently engaged in a substantial amount of sexual activity, Mr. Bradley attempted to introduce testimony by the cousin about the cousin’s sexual acts with the victim. Mr. Bradley argued that the evidence should be allowed to show one means by which the victim’s physical condition, as described by the physician who examined her, could have developed. The evidence was rejected on the basis of § 16-42-101(b) which precludes the admission of evidence of specific instances of an alleged victim’s prior sexual conduct in rape cases.

Mr. Bradley correctly argues that the rape shield statute is not an absolute bar to evidence such as that he proffered. In Gaines v. State, 313 Ark. 561 855 S.W.2d 956 (1993), we wrote, “Obviously, this statute is not a total bar to evidence of a victim’s sexual conduct but instead makes its admissibility discretionary with the trial judge pursuant to the procedures set out at ... § 16-42-101(c)(l-3).”

Subsection (c) of the statute provides that evidence of a victim’s prior sexual conduct may be admitted if its relevancy is determined in accordance with the provisions found in the subsequent subsections. Subsection (c)(1) requires a written motion to be made by the defendant wishing to present such evidence, and subsection (c)(2) provides for a subsequent hearing on the motion to be held in camera. If the evidence is to be admitted, the statute provides that the victim will be given an opportunity to consult with the prosecutor. Mr. Bradley did not file any such written motion, so the provisions of the statute were not invoked.

In Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996), the State moved in limine complaining, as here, that the defendant had failed to file a written motion to take advantage of § 16-42-101(c) and asking that evidence of prior sexual conduct by the alleged victim be excluded. On appeal, Mr. Mosley argued that the discussion of the evidence with the Trial Court prior to its decision not to admit the evidence was sufficient and that no motion by the defendant or further hearing was required. We held to the contrary and wrote:

The crux of the State’s argument was that the testimony was barred because Mosley failed to file the required motion, and Mosley’s principal response was that the testimony was not governed by the Rape Shield Statute. Consequently, the trial court did not timely hear a specific offer of the proposed evidence, did not make a relevancy determination of that proposed evidence, and did not weigh its probative value against prejudice. In Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979), we stated, “The purpose of such hearing is to review the evidence to determine whether it is relevant for trial purposes. Unless the court hears such evidence, it cannot properly determine its relevancy.” Id. at 210, 590 S.W.2d at 255. Since he failed to timely make an offer of proof and since the trial court made no determination of relevancy, the matter is procedurally barred on appeal.

In this case, we find the parties in the same posture as in the Mosley case. The victim’s young cousin testified he had seen Mr. Bradley and the victim on the couch under a blanket and Mr. Bradley was on top of the victim going up and down. When the cousin was called as a witness, the Trial Court ruled that “any testimony that he had sexual intercourse with this victim is covered under the rape shield law and it’s not admissible.” Prior to cross-examining the witness, defense counsel proffered further testimony by the witness that he had had sexual intercourse with the victim three or four times. Defense counsel argued its relevancy. The Trial Court merely reiterated that the evidence was precluded by the statute.

Subsection (c)(2)(A) of the statute provides that after a written motion seeking a relevancy hearing has been filed, “A hearing on the motion shall be held no later than three (3) days before the trial is scheduled to begin, or at such later time as the court may for good cause permit.” As in the Mosley case, there is no showing that a motion to admit the evidence of the victim’s prior sexual conduct was filed in writing, that the issue was timely raised, or that the Trial Court in any manner abused its discretion in not finding “good cause” to hold a relevancy hearing later than three days before the trial. Mr. Bradley is thus barred from obtaining relief on this point on appeal.

2. Hearsay

The State’s evidence showed that, although the sexual abuse was alleged to have been going on for some time, the victim told no one about it until she mentioned it to a fourteen-year-old friend. The victim testified she had kept the matter to herself because she had been told by Mr. Bradley that she and he would “get into trouble” if anyone were told. The victim’s friend testified that the victim told her about it after they had watched a television show about child abuse and that the victim was tearful and appeared to be afraid.

Mr. Bradley objected to testimony by the friend to the effect that the victim told her that Bradley had told the victim he would kill the victim if she told about the sexual acts. The State argued that the friend’s testimony was admissible pursuant to Ark. R. Evid. 803(3). The rule provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

The State argues the statement by the victim (declarant) that Mr. Bradley said he would kill her is offered to show the victim’s mental feeling, i.e., fear, and that was the reason she declined for a long time to tell anyone about the abuse she allegedly suffered. Counsel for Mr. Bradley argued to the Trial Court and now on appeal that the statement was simply inadmissible hearsay.

We have not often had an opportunity to consider Rule 803(3), and certainly we have not had before us facts such as the ones in this case. We are acutely aware of the vagaries inherent in the rule, especially when we have what at first blush might be said to be a hearsay-upon-hearsay situation, i.e., “she said he said.” We conclude the best analysis of these facts is through an analogy to extortion cases in which the rule has been examined.

When fear is the mental feeling or state of mind sought to be shown through an out-of-court statement, the statement is often evidence, as well, of an act by the defendant. It thus falls within the exception to the exception provided in the rule, i.e., it is testimony of “memory to prove the fact remembered.” The statement may thus be inadmissible hearsay if offered to prove the act but not if offered to prove the state of mind of, as in this case, the victim. That situation gave rise to a debate in United States v. Kennedy, 291 F.2d 457 (2d Cir. 1961), described as follows in 4 J. Weinstein and M. Berger, Weinstein’s Evidence, p. 803-130 (1987):

[T]he majority of the court admitted statements which on analysis fall within the memory or belief proscription. In a prosecution for extortion, the charge was that defendants intimidated drivers and forced them to pay an unloading fee. The trial court allowed drivers called as witnesses to testify to declarations made by other drivers not called as witnesses about threats defendants had made to them. The trial court and the majority of the appellate court held that these statements were properly admitted to show the victims’ state of mind. Judge Friendly, who joined in the majority opinion because in context the error was harmless, argued that it was error to receive the statements even to prove the victim’s state of mind, for his state of mind is irrelevant unless it springs from action by the defendant and the hearsay rule forbids the use of the informant’s statement to show that this had occurred.
In other words, although the declarant is expressing “fear” rather than “memory or beliefs’ his fear is really akin to remembering the prior conduct of defendant threatening him with harm. [Footnotes omitted.]

Judge Friendly wrote the opinion for the Court. He expressed the view of all three of the Judges that the evidence given by the victims of extortion about statements of their informants who were also present and testifying was admissible without question. The issue was whether the victims could testify about statements made to them by persons not present, and in some instances not even named. Judge Friendly’s colleagues felt those statements were admissible pursuant to Rule 803(3), but he thought not.

In the case now before us, the State offered a statement of the declarant, who is the alleged victim of the crime, to prove the truth of the matter asserted, i.e., the fact that Mr. Bradley uttered a statement that he would kill the victim. Perhaps all of the Judges in the Kennedy case would admit the evidence because the victim (declarant) was present and testifying.

The problem discussed in Judge Friendly’s opinion remains, however. If the victim’s statement about what Mr. Bradley said to her is true, it further tends to show that the victim was afraid to tell anyone about the abuse she allegedly suffered. We do not have quite the same problem as appeared in the Kennedy case. The threat to harm is an element of extortion. Standing alone, the threat to kill has nothing to do with the offense of rape as charged in this case.

Perhaps it could be said that proof of a statement that Mr. Bradley said he would kill the victim would tend to prove he engaged in sexual intercourse with her, given the context in which the testimony about his threat was given. Even so, the admissibility of an out-of-court statement should be within the discretion of the Trial Court despite its apparent inclusion within the “memory or belief’ portion of Rule 803(3) when it is also proof of the declarant’s state of mind. As is stated in C. Mueller and L. Kirkpatrick, Modern Evidence, § 8.37, pp. 1234-1235 (1995):

Since the exception does not allow use of a statement to prove an act, event, or condition (“a fact remembered or believed”), fact-laden statements introduce more risk of prejudice than pure state-of-mind statements. The question of admissibility turns on weighing probative worth against dangers of jury misuse of a statement as proof of the act, event, or condition it describes. [Footnote omitted.]

In the circumstances of this case, we hold there was no abuse of discretion in admitting the statement.

3. Rule 4-3 (h)

The record of trial has been examined for error in rulings by the Trial Court which were adverse to Mr. Bradley. None have been found.

Affirmed.


author: Tom Glaze, Justice.

text:
    Cedric Lamar HARRIS v. STATE of Arkansas
    CR 96-782
    935 S.W.2d 568
    Supreme Court of Arkansas
    Opinion delivered January 13, 1997
    [Petition for rehearing denied February 24, 1997.]

      Morehead & Morehead, by: Robert F. Morehead, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Cedric Lamar Harris appeals from his convictions for capital murder and attempted murder for which he received the respective sentences of life without parole and thirty years’ imprisonment. He raises two points for reversal, one, that the trial court wrongly rejected his motion to dismiss on speedy-trial grounds, and, two, the trial court erred in denying his motion for directed verdict. The State, however, suggests that Harris’s appeal was filed untimely, and we agree. Therefore, we dismiss the appeal.

On October 5, 1995, the Ashley County Circuit Court entered its conviction judgment against Harris, and Harris filed a motion for new trial on October 16, 1995, asserting juror misconduct. On December 6, 1995, fifty-one days after the filing of Harris’s motion, the trial court entered its order denying the motion. Harris later filed his notice of appeal on January 2, 1996.

In a per curiam opinion delivered on January 21, 1994, this court amended its rules of criminal procedure to clarify that, if a posttrial motion in the nature of a motion for a new trial or amendment of judgment is not resolved by the trial court within thirty days from the date of its fifing, it is deemed denied under Rule 4(c) of the Appellate Rules of Procedure. See In Re: Amendment to Rule 36.9 of the Arkansas Rules of Criminal Procedure Regarding Time and Method of Taking Criminal Appeal, 315 Ark. 770 (1994); see also Giacona v. State, 311 Ark. 664, 846 S.W.2d 185 (1993). The court subsequently readopted this rule and made it a part of Rule 2 of the Appellate Procedure — Criminal Rules, which superseded former A.R.Cr.P. Rule 36.9. But see Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996) (court held “deemed denied” provision does not apply to Rule 37 petitions); see also Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996).

In the present case, Harris’s new trial motion was filed on October 16, 1995, and under Rule 2, the motion was deemed denied thirty days later, on November 15, 1995. Accordingly, Harris had thirty days within which to file his appeal which date ended on December 15, 1995. Instead, he waited until January 2, 1996, to file his notice of appeal. Although the trial court belatedly denied Harris’s new trial motion on December 5th, it had no jurisdiction to do so. See Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995); Mangiapane v. State, 43 Ark. App. 19, 858 S.W.2d 128 (1993).

In conclusion, we mention the State’s suggestion that Harris could correct his failure to file a timely appeal by seeking permission to file a belated appeal. While a belated appeal is certainly permissible under Rule 2(e) of the court’s appellate procedure for criminal cases, we point out that, to date, no such application and affidavit required under Rule 2(e) have been made by Harris, and this case has now been submitted to this court for decision. Pannell v. State, 320 Ark. 658, 897 S.W.2d 552 (1995).

Accordingly, we must dismiss Harris’s appeal.

       We note that Harris argues on appeal that, if this court determined he had failed to preserve his speedy-trial argument below, his failure should be found to constitute ineffective assistance of counsel, and, as a consequence, this court should consider the argument under Rule 37. We have repeatedly held ineffective assistance of counsel may not be raised as a point of direct appeal, unless the issue has been considered by the trial court. Witherspoon v. State, 319 Ark. 313, 891 S.W.2d 375 (1995); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993).


author: Donald L. Corbin, Justice. Ray Thornton, Justice,

text:
    STATE of Arkansas v. William P. McFADDEN
    CR 96-1058
    938 S.W.2d 797
    Supreme Court of Arkansas
    Opinion delivered January 13, 1997

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellant.

      Tom Thompson, for appellee.
   Donald L. Corbin, Justice.

This is an interlocutory appeal by the State of Arkansas of the order entered by the Sharp County Circuit Court granting Appellee William P. McFadden’s motion to suppress physical evidence in his criminal case. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(ll) and Ark. R. App. P. — Crim. R. 3. On appeal, Appellant argues that the trial court erred in suppressing the evidence pursuant to A.R.Cr.P. Rule 3.1 because the stop of the vehicle that Appellee was driving was proper pursuant A.R.Cr.P. Rule 2.2.

I. Facts and Procedural History

During the suppression hearing below, Ernie Rose, Chief of Police of Hardy, Arkansas, testified to the following facts. On April 4, 1994, Chief Rose received a report that a juvenile girl was missing. The girl’s parents informed Chief Rose that she was probably with Shane Shipp, who drove a little red Nissan car, and that she had been seeing Shipp against her parents’ wishes. That night Chief Rose and the girl’s father, who was riding along with the officer, spotted the Shipp vehicle and noticed that there were two persons in the car. Chief Rose pursued the vehicle, with his blue lights flashing, and stopped the vehicle shortly thereafter. Shipp was seated in the passenger seat and Appellee McFadden was driving the car. When he approached the vehicle, Chief Rose observed a black shotgun standing upright behind the driver’s seat. When Chief Rose informed Appellee and Shipp that he had stopped them to inquire about the whereabouts of the juvenile girl, Shipp told the officer that he had not seen the girl for a few days. Chief Rose then requested permission to search Shipp’s home, which was nearby, for the missing juvenile girl and Shipp consented.

After completing the search, Chief Rose released the two ■men, but seized the shotgun from the car because the gun had a pistol-type grip and appeared to him to have been sawed-off in violation of Arkansas law. Appellee informed Chief Rose that the shotgun was his, and that the officer should be careful with it because it was loaded. Chief Rose took custody of the weapon, and upon putting the shotgun into the evidence room, another officer observed a package down in the butt of the shotgun. When the officer pulled it out, he observed that the package contained a white powdery substance. Chief Rose sent the package to the Arkansas State Crime Laboratory for analysis; he subsequently received a report stating that the substance was methamphetamine. The shotgun itself was later determined not to be illegal in any respect. After receiving the drug-analysis report, Chief Rose obtained an arrest warrant for Appellee, resulting in felony charges of simultaneous possession of drugs and firearms, a Class Y felony, and possession of methamphetamine, a Class C felony.

Appellee filed a motion to suppress the evidence on the ground that the stop, search, and seizure violated his rights under the Fourth Amendment to the United States Constitution. Specifically, Appellee argued below that the evidence should be suppressed because Chief Rose did not articulate any probable cause for stopping the vehicle, nor did he articulate any probable cause for seizing the weapon.

The only person to testify during the suppression hearing was Chief Rose. On direct examination, Chief Rose stated that he stopped the car because he was looking for the juvenile girl. On cross-examination, Chief Rose stated that at the time he initially observed and stopped the car, he did not believe that a felony had been committed, was being committed, or was about to be committed. Chief Rose stated further that although he did have concerns about the safety of the juvenile girl, the only crime he would have believed may have been committed was endangerment of a minor. Chief Rose again reiterated that he was investigating a missing juvenile, something he did routinely.

The State argued below, as it does on appeal, that the stop of the vehicle was proper and valid pursuant to A.R.Cr.P. Rule 2.2, which allows officers to request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. Appellee argued that the stop amounted to an unlawful detainment pursuant to A.R.Cr.P. Rule 3.1. The trial court agreed with Appellee and granted his motion to suppress both the shotgun and the methamphetamine. We affirm.

II. Validity of the Stop

In reviewing a trial court’s decision granting a defendant’s motion to suppress evidence, we make an independent determination based on the totality of the circumstances and reverse the trial court’s decision only if it is clearly against the preponderance of the evidence. State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991); State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991).

Appellant argues that the initial stop of the car driven by Appellee was proper under A.R.Cr.P. Rule 2.2 as a request for information concerning a criminal investigation. We disagree. Rule 2.2(a) provides:

A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.

This court has interpreted Rule 2.2 to provide that an officer may approach a citizen much in the same way a citizen may approach another citizen and request aid or information. See Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990); Baxter v. State, 274 Ark. 539, 626 S.W.2d 935, cert. denied, 457 U.S. 1118 (1982). Following that rationale, this court stated in Thompson:

Not all personal intercourse between policemen and citizens involves “seizures” of persons under the fourth amendment. See Terry v. Ohio, 392 U.S. 1 (1967). A “seizure” occurs when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Id.
Police-citizen encounters have been classified into three categories. See U.S. v. Hernandez, 854 F.2d 295 (8th Cir. 1988). The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the fourth amendment. Id. The second police encounter is when the officer may justifiably restrain an individual for a short period of time if they have an “articulable suspicion” that the person has committed or is about to commit a crime. Id. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause. Id.

Thompson, 303 Ark. at 409, 797 S.W.2d at 451-52. In that case, this court went on to hold that Rule 2.2(a) provides the “authority for a police officer to act in this type of nonseizure encounter,” referring to the first category of police-citizen encounters. Id. at 410, 797 S.W.2d at 452.

In determining that a balancing test must be used in these situations, this court stated in Baxter:

There is nothing in the Constitution which prevents the police from addressing questions to any individual. See Terry v. Ohio, supra. However, the approach of a citizen pursuant to a policeman’s investigative law enforcement function must be reasonable under the existent circumstances and requires a weighing of the government’s interest for the intrusion against the individual’s right to privacy and personal freedom. To be considered are the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter. People v. De Bour, 40 N.Y.2d 210, 352 N.E.2d 562 (1976).

Id., 274 Ark. at .543, 626 S.W.2d at 937.

In Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980), this court stated that in order for an officer’s actions to be valid pursuant to Rule 2.2, “the officer’s request for information must be in aid of the investigation or prevention of crime.” Id. at 383, 602 S.W.2d at 638. In sum, our case law has consistently held that Rule 2.2 authorizes an officer to request information or cooperation from citizens provided the approach of the citizen does not rise to the level of being a seizure and provided that the information or cooperation sought by the officer is in aid of the investigation or prevention of crime. The facts presented below indicate to us that the officer’s approach of Appellee was neither a nonseizure encounter nor done for the purpose of aiding in the investigation or prevention of a crime.

From the testimony elicited during the suppression hearing, we are not convinced that Chief Rose was investigating any particular crime; he was merely looking for a missing juvenile. There was no testimony presented indicating that the juvenile girl may have been kidnapped or, if she was in fact with Shane Shipp, that she was with him against her own will. Chief Rose testified only that the juvenile girl had been seeing Shipp against her parents’ will •— not against her will.

On cross-examination, Chief Rose appeared to waver on the issue of whether he suspected that the occupants of the vehicle were involved in the commission of a crime. At first, Chief Rose stated that it was common knowledge that the girl had been seen in the company of Shipp on previous occasions, and he admitted that while he was pursuing the vehicle, he had no reason to believe that a felony was being committed. Chief Rose then stated that he was concerned for the girl’s safety and that the only crime that may have been committed was one of endangering a minor. Subsequent to that, Chief Rose again admitted that at the time he was pursuing the vehicle, he had no reason to believe that any force was being used or that any crime was being committed against the girl. The credibility of the witness in this instance was for the trial court to weigh and assess, and the trial court’s findings of fact shall not be set aside unless they are clearly erroneous. Shibley v. State, 324 Ark. 212, 920 S.W.2d 10 (1996); Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Based upon the aforementioned testimony of Chief Rose, we cannot say the trial court’s ruling on the suppression issue was clearly erroneous.

Furthermore, Chief Rose’s approach of Appellee and Shipp cannot be characterized as anything other than a seizure of the two men; this was not a situation where the officer merely approached two men on a public street and asked if they would provide information. Indeed, Chief Rose testified that he pursued the Shipp vehicle with his blue lights flashing until the vehicle pulled to the side of the road. He testified further that he had the men step out of the vehicle and accompany him to Shipp’s home so that he could search the premises for the missing girl. We believe that this “approach” of Appellee, went far beyond the sort of encounter authorized by Rule 2.2; it became a seizure such that a reasonable person in that situation would not have believed he was free to leave. Thompson, 303 Ark. 407, 797 S.W.2d 450. Applying the balancing test provided in Baxter, 274 Ark. 539, 626 S.W.2d 935, it is clear that the intrusion into Appellee’s privacy was unreasonable when weighed against the governmental interest of locating a juvenile girl, where no allegations of criminal activity were made.

In support of its contention, Appellant cites our decisions in Baxter, 274 Ark. 539, 626 S.W.2d 935, and Blevins v. State, 310 Ark. 538, 837 S.W.2d 879 (1992). Those cases are easily distinguishable from this case based upon the facts presented in each instance. In both of the above-cited cases, the officer was responding to reports concerning robberies which had just occurred. In both cases, this court upheld the officers’ initial stop and approach of the appellants on the bases that both appellants were near the scene of the robberies around the time the crimes had been committed and could have been witnesses to the crimes, and that both cases involved the investigation of serious criminal offenses. In the present case, there simply was no crime being investigated which would entitle the officer to stop and detain Appellee, pursuant to either Rule 2.2 or Rule 3.1. Based upon all of the above reasons, we conclude the trial court’s ruling was not clearly erroneous.

We need not address the second issue raised, that the subsequent seizure of the shotgun was proper pursuant to A.R.Cr.P. Rule 14.4, as our decision that the initial stop of the vehicle was improper is dispositive of the second issue.

Affirmed.

Thornton, J., concurs.

Ray Thornton, Justice,

concurring. I agree with the majority decision affirming the decision of the trial court, but only because the trial court’s decision is not clearly against the preponderance of the evidence.

This Court should not base its decision upon an interpretation of Rule 2.2(a) that could have a chilling effect upon the exercise of discretion by an officer charged with preventing and deterring criminal activities. Preventing the endangerment of a child is, in my view, a valid reason for a lawful stop of a vehicle when it is reasonably believed that the occupants of the vehicle possess information about the missing child. Police officers should be assured that stopping a vehicle belonging to friends or family of a missing child to ask for information about the child is not prohibited by this decision.

Here, there was substantial evidence before the trial court that the missing juvenile was not in danger and that the officer did not consider that a crime had been committed. While I might have reached a decision contrary to the trial court on the basis of my own interpretation of the evidence, I recognize that the trial court was able to listen to the testimony, observe the demeanor of the witnesses, evaluate their credibility, and conclude that the vehicle was not lawfully stopped.

In these circumstances, I would affirm, but only because I could not find that the trial court’s decision was clearly against the preponderance of the evidence. We should recognize that another trial court in similar factual circumstances might decide a lawful stop was permitted, and I believe that decision should also be supported on review unless it was clearly against the preponderance of the evidence.

I concur.