author: Robert L. Brown, Justice.

text:
    Nylon VICK v. STATE of Arkansas
    CR 93-668
    863 S.W.2d 820
    Supreme Court of Arkansas
    Opinion delivered November 1, 1993

      William R. Simpson, Jr., Public Defender, by: Sandra S. Cordi, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Cathy Derden, Asst. Att’y Gen., for appellee. .
   Robert L. Brown, Justice.

The appellant, Nylon Vick, was convicted of rape and kidnapping in 1993. He had previously been convicted of the same charges in 1988, and we affirmed those convictions. Vick v. State, 299 Ark. 25, 770 S.W.2d 653 (1989). He subsequently filed a pro se petition for a writ of habeas corpus in federal court which was ultimately granted on grounds of ineffective counsel and a new trial was conducted in 1993 which resulted in renewed convictions.

The appellant now appeals his 1993 convictions on two grounds: (1) the trial court erred by allowing into evidence the transcript of the testimony of Lillie Oliver, a witness at the previous trial who did not appear at the 1993 trial; and (2) the trial court abused its discretion by denying appellant’s motion for a mistrial because of testimony concerning the victim’s character. Neither of these arguments has merit, and we affirm.

On June 22,1988, the victim who was a college student was selling books door-to-door in Little Rock for a company named Southwestern Company. At trial, she testified that on that date, she entered the home of the appellant to sell him books. During her presentation, Vick left the living room and returned with a pistol in his hand. He restrained the victim for a period of three days, forced her to use drugs, and raped her orally, anally, and vaginally. The rapes occurred repeatedly. She attempted to escape once and was captured and dragged back into the house. On the third day, she escaped successfully, ran to a nearby house, and contacted the police. She identified Vick from a photo spread at the Little Rock Police Department.

On retrial, the jury found Vick guilty of two counts of rape. He was sentenced to two terms of life in prison to be served consecutively. He was also found guilty of kidnapping and sentenced to an additional term of thirty years.

I. FORMER TESTIMONY OF UNAVAILABLE WITNESS

The appellant initially contends that the trial court abused its discretion by allowing the State to read to the jury the testimony of a purportedly unavailable witness, Lillie Oliver, given at the previous trial. In support of this contention, the appellant posits a two-prong argument. First, he argues that the State failed to make a good faith effort to locate Lillie Oliver by reasonable means as required by Ark. R. Evid. 804(a)(5). Secondly, he argues that it was improper to admit the former Oliver testimony because the federal district court granted a writ of habeas corpus based on ineffective counsel at the first trial, which casts doubt on defense counsel’s cross-examination of Oliver. Thus, under his theory, the former testimony of Ms. Oliver was not sufficiently developed to constitute a hearsay exception under Ark. R. Evid. 804(b)(1). Finally, he argues that his right to confront a witness under the Sixth Amendment was denied him.

A witness is unavailable when absent from the trial and the proponent of the statement has been unable to procure the attendance or testimony by process or other reasonable means. Ark. R. Evid. 804(a)(5); Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993). The party offering the testimony has the burden of proving the witness unavailable. Register v. State, supra; Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Also, the party seeking to introduce the prior testimony of an unavailable witness must show that a good faith effort has been made to procure the attendance of the missing witness. Register v. State, supra; Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992).

If a witness is unavailable, it is clear under our Rules of Evidence that former transcribed testimony of that witness may be presented at a second trial:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Ark. R. Evid. 804(b)(1).

At a pre-trial hearing, Durthey Bishop, an investigator for the office of the prosecuting attorney, described his work to locate Ms. Oliver in detail. He stated that he began the search in December of 1992 with a subpoena which listed Ms. Oliver’s home address and telephone number. He checked the address and found that her house had been torn down. He then obtained a subpoena to research Ms. Oliver’s past telephone records and found that her telephone had been disconnected. Bishop then contacted gas, electricity, and water utilities. He sought information indicating shut-off dates for old services and reconnect dates for new services. Nothing new was discovered. Bishop checked these records twice to be sure of their accuracy.

Additionally, Bishop asked about Ms. Oliver in her old neighborhood in Little Rock. Again, he was unsuccessful in obtaining information leading to Ms. Oliver’s whereabouts. He also contacted Social Services to determine whether Ms. Oliver had received any type of support. This inquiry also was unrevealing. At the suggestion of Social Services, Bishop initiated a search of local nursing homes. During the pretrial hearing, he admitted that he had only contacted one nursing home but had made plans to contact several more in the area. He also stated that another caseworker had begun to check each nursing home. Bishop next reviewed criminal records. Though some criminal information was uncovered for a Lillie Oliver, he concluded that the person was not the Lillie Oliver in question due to an age discrepancy.

The appellant counters this testimony with the argument that his check of criminal records divulged a Lillie Oliver which the State was unable to locate. Based on this finding, appellant asserts that the State has not demonstrated a good faith effort to find Oliver. The appellant argues too that the State’s failure to check each nursing home in Pulaski County is yet another demonstration of its lack of good faith.

We disagree. The State exerted considerable effort in its search for Oliver, and the search was thorough. A good faith effort to procure Oliver’s presence for trial was certainly illustrated by Bishop’s testimony, even though each nursing home in Pulaski County was not visited and a “Lillian Oliver” listed in the criminal records was ultimately not found. We have no difficulty in affirming the trial court’s finding of unavailability under Ark. R. Evid. 804(a)(5).

Nor should Ms. Oliver’s testimony be barred for lack of opportunity to develop her testimony at the first trial under Ark. R. Evid. 804(b)(1) or as a violation of the appellant’s right to confront witnesses under the Sixth Amendment. Mancusi v. Stubbs, 408 U.S. 204 (1972).

The essence of Ms. Oliver’s testimony at the previous trial with pertinent cross-examination follows:

OLIVER: Well, I was standing on the edge of my yard talking with one of those sanitary boys that works for the Sanitary Department, and this girl come running up. She was frightened to death. To me she was.
And she grabbed me, and she asked me could I help her. And I asked her what’s the matter? I said, “No.” I said, “I cannot help you.” I said, “You just keep running.” I said, “Run on around there.” I said, “I can’t help you.” I said, “What is it?” She said there was a man after her to kill her. I said, “Well, honey, run right around that other house,” and she did.

Cross-examination then proceeded as follows:

DEFENSE COUNSEL: Mrs. Oliver, I just have one question. Did you see anybody running after her?
OLIVER: Well, I never seen nobody.
DEFENSE COUNSEL: Okay.
OLIVER: I did not.
DEFENSE COUNSEL: Okay, you stood out there sometime after she passed you?
OLIVER: Well, a few minutes later, because I was so weak that I couldn’t stand too much longer.
DEFENSE COUNSEL: And, okay, you were with a garbage man?
OLIVER: Yes, but he was getting ready to pull off, then, at that time.
DEFENSE COUNSEL: Okay.
OLIVER: Uh huh (Meaning yes).

After the preceding testimony was read into the record, counsel for the appellant proffered questions to the judge which he would have asked had Ms. Oliver been present at the trial:

If the live witness were here, I would refer to Defense Exhibit No. 1 (a photograph of the area where the appellant and Ms. Oliver lived) and ask where she lived in that (sic) to give the jury a better idea of where her house was and what her viewing position was, and if it conflicted, in fact, with the path that this lady was supposed to have run.

We first observe that the appellant clearly had the opportunity to cross-examine Ms. Oliver at the first trial under the hearsay exception for former testimony set out at Ark. R. Evid. 804(b)(1). Moreover, we do not agree that defense counsel’s cross-examination of Ms. Oliver, albeit brief, warrants a reversal in this case. Our conclusion is bolstered by the questions proffered by counsel at the second trial which he contends he would have asked had she been present. The questions about location of the houses and Ms. Oliver’s ability to see the victim’s path of escape do not appear to develop Ms. Oliver’s testimony appreciably more than the questions asked. Hence, we are unpersuaded that those questions are crucial to establishing the reliability of Oliver’s testimony. At best, the proffered questions appear to be of marginal benefit to the appellant’s cause. In sum, we conclude that the cross-examination was sufficient to afford the trier of fact a reasonable basis to evaluate the truth of Ms. Oliver’s statements. See Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).

We turn next to the Confrontation Clause argument, which is related to the hearsay argument. The federal district court made no specific finding that defense counsel was ineffective in cross-examining Lillie Oliver at the first trial. In 1972, the United States Supreme Court decided a similar issue in Mancusi v. Stubbs, supra. There, the Court held that when a witness is unavailable and a party seeks to introduce former testimony of that witness as evidence in a new trial, such testimony meets the requirements of the Confrontation Clause if that prior testimony bears “indicia of reliability.” As in the instant case, in Mancusi the first conviction of the defendant was reversed because of ineffective assistance of counsel. However, in making that determination, the habeas court did not focus on the cross-examination of witnesses. Defense counsel was presumed ineffective because the time between appointment of counsel and the trial date was so short — four days. The Mancusi Court concluded that because the habeas court had not addressed itself to the effectiveness of the examination of the unavailable witness, the mere finding of ineffectiveness due to the brevity of preparation time did not determine the reliability of the former testimony.

Likewise, in the habeas corpus review in the case before us, the premise for ineffectiveness was prior counsel’s deficient investigation and preparation prior to trial. No specific finding was made that the cross-examination of Lillie Oliver was deficient or inadequate. As in Mancusi, we cannot say that the finding of ineffectiveness in trial preparation by the federal district court casts doubt on the reliability of Ms. Oliver’s testimony. Nor do we conclude that the cross-examination itself rendered her testimony unreliable. We note on this point that reliability may be determined by the fact that the declaration to be admitted falls within a firmly rooted hearsay exception. Bourjailly v. United States, 483 U.S. 171 (1987); Bussard v. State, supra. Here, Ms. Oliver’s testimony falls within such an exception as former recorded testimony. There was no error in the admission of Ms. Oliver’s former testimony.

II. CHARACTER TESTIMONY

For his second point, the appellant contends that the trial court should have granted a mistrial when three witnesses gave testimony describing the victim’s character in violation of Ark. R. Evid. 404(2).

A motion for mistrial is only appropriate where the error is beyond repair and cannot be corrected by any curative relief. Sullinger v. State, 310 Ark. 691, 840 S.W.2d 797 (1992); Ashley v. State, 310 Ark. 575, 840 S.W.2d 793 (1992). The trial court has wide discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of discretion or manifest prejudice to the complaining party. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).

The first testimony complained of was given by DeShonda Davis:

After we all looked out, well, see, my mom and my stepdad, they didn’t believe us, because they figured that (the victim) wouldn’t be with anyone, you know, like him.

Following this statement, Vick objected and moved for a mistrial. The trial court correctly denied this motion since any error occasioned by this statement was plainly not beyond repair. Sullinger v. State, supra. The appellant then requested an admonishment. The court obliged and correctly admonished the jury to disregard the statement.

The second statement was given by Sandra Smith who stated about the victim: “She was a real nice young lady.” The appellant again moved for a mistrial which was denied. However, in this instance the appellant failed to request an admonition, and none was given. This statement by Smith hardly warranted the drastic remedy of a mistrial declaration. Moreover, because the appellant failed to request curative relief, the trial court did not err in failing to admonish the jury. Wheat v. State, 295 Ark. 178, 747 S.W.2d 112 (1988). It is clearly the appellant’s obligation to ask for a curative instruction, and the failure to do so will not inure to his benefit on appeal. Sullinger v. State, supra; Jurney v. State, 298 Ark. 91, 766 S.W.2d 1 (1989).

The third and final remarks complained of were made by Sally Morris, who stated:

[T]hey recruit college students, and they sell us on being above average, you know.
They didn’t take the average student.

Following these remarks, Vick failed either to object and request an admonishment or to move for a mistrial. Accordingly, any argument regarding this statement is not preserved for appeal. Davasher v. State, supra.

Nor do we give credence to the appellant’s contention that the cumulative effect of these statements was prejudicial. We have entertained an argument of cumulative error in rare and egregious cases. See, e.g., Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993). This is not such a case. No prejudice aggregated under these facts to require a reversal.

The record has been reviewed in this case for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), and none has been found.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Robert Lee WALKER v. STATE of Arkansas
    CR 93-659
    864 S.W.2d 230
    Supreme Court of Arkansas
    Opinion delivered November 1, 1993

      Christopher D. Anderson, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Robert Lee Walker was convicted of aggravated robbery and misdemeanor theft. He appeals this judgment and his sentence as a habitual offender to 35 years imprisonment for aggravated robbery and one year in jail and a fine of $1,000 for misdemeanor theft. His points on appeal are that his right to a trial by jury was unduly encumbered by the Habitual Offender Act following a severance of charges for trial purposes; that he was denied equal protection of the laws, since a presentence report depicting mitigating circumstances was not made available to the jury; and blacks were not sufficiently represented on the jury panel. All three points are meritless, and' we affirm.

On April 6, 1992, Stephanie Thomas, an employee at Schickel’s Cleaners was working at the store when the appellant came in and asked for clothing for his wife. Immediately following the request, she testified that Walker threatened to “blow her head off” if she did not give him the money in the cash register. She did not see a gun but the appellant had his hand in his jacket pocket, according to her testimony, as if he had a gun. She gave the appellant a disputed amount of money from the cash register. He next pulled her over to the bathroom, told her to go inside and lock the door, and said if she came out he would shoot her. She later identified the appellant in a lineup at the Little Rock Police Department.

Walker was charged in one felony information with one count of aggravated robbery and one count of misdemeanor theft associated with the Schickels robbery and one count of aggravated robbery and one count of misdemeanor theft associated with a robbery of E-Z Mart three days later on April 9,1992. The appellant moved to sever the charges on the basis that they were not part of a single plan or scheme. The motion was granted. Walker was first tried for the April 9,1992 robbery of E-Z Mart and was convicted and sentenced to five years. The next day, November 18,1992, he was tried for the Schickels robbery which is the case before us. Prior to the second trial, the State moved to amend the felony information to add a habitual offender count. The trial court granted the motion.

At trial the appellant testified that he robbed Schickel’s Cleaners on the date in question but claimed that he did not have a gun in his pocket and that he did not threaten to harm Ms. Thomas. The jury, nevertheless, found him guilty of aggravated robbery and misdemeanor theft.

During the penalty phase of the trial, the jury was instructed that the State had alleged that the appellant was a habitual offender. The State then offered docket sheets reflecting that Walker had been convicted of aggravated robbery on August 25, 1992, and sentenced to 11 years, and aggravated robbery the day before on November 17,1992, in connection with the E-Z Mart robbery and sentenced to 5 years. As a habitual offender, the jury was instructed that Walker was punishable by a term of not less than 20 years nor more than 60 years. The jury fixed his sentence at 35 years for aggravated robbery and one year in jail and a $1,000 fine for misdemeanor theft, and judgment was entered accordingly.

I. THE RIGHT TO TRIAL BY JURY

The appellant first contends that his Sixth Amendment right to a jury trial was burdened by his having to choose between seeking a severance and risking application of the Habitual Offender Act on the one hand, and not seeking a severance and increasing his chances of conviction when the jury was presented with evidence of the robbery of two stores on the other. He claims that he was entitled to have the counts severed because the offense on April 6,1991 (Schickel’s Cleaners), and the offense of April 9, 1991 (E-Z Mart), were separate and distinct and only joined because they were similar in nature. He urges that under these circumstances he should not be subjected to an enhanced penalty due to a conviction on the severed charge.

We begin by noting that it is the prosecuting attorney who has the discretion to file a criminal information under Arkansas law, and only the prosecutor has the authority to amend that information. Ark. Const. amend. 21, § 1; Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992). In this matter, the prosecutor chose to file charges relating to an April 6, 1991 robbery at Schickel’s Cleaners in the same felony information with charges for an April 9, 1991 robbery at E-Z Mart. The appellant offers no authority to support his contention that the prosecutor did not have discretion over whether to file one information on the offenses or two informations. Indeed, the law is to the contrary. There is no question that had the prosecutor filed two informations, which was clearly within his authority, the first conviction would have been admissible for enhancement purposes irrespective of the fact that the conduct at issue in the first trial occurred after the conduct at issue in the case at bar. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991).

The appellant was properly found to be a habitual offender as he had two prior felony convictions — an August 25, 1992 conviction, and the November 17,1992 conviction relating to E-Z Mart. There was no error by the trial court in this regard.

II. PRESENTENCE REPORT

The appellant’s second asserted error is that the trial court refused to present information to the jury about the appellant comparable to what the court would have received in a presentence report on a guilty plea. See Ark. Code Ann. § 5-4-102 (Supp. 1993). This, according to Walker, violated his equal protection rights.

The record reflects that the trial court did allow Walker to tell the jury that he had harmed no one in his previous crimes. The appellant also asked that the terms of his prior convictions be given to the jury, and this was done during the penalty phase of the trial. What Walker was forbidden to argue to the jury was the range of penalties at issue in the prior convictions. The trial court ruled that this information was irrelevant to the instant case.

We do not need to reach the issue of whether the trial court’s ruling was correct. The appellant couches his argument on appeal on an equal protection premise. That argument, however, was not made to the trial court and hence it was not preserved for appeal. This court has repeatedly stated that it will not consider an issue raised for the first time on appeal. See, e.g., Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993); Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). We again refuse to do so in this case.

III. DEFECTIVE JURY PANEL

The appellant finally argues that the trial court was in error in refusing to strike the jury panel on grounds that it contained too few blacks. The appellant contends before this court that he prematurely concluded his efforts to seat another black juror for fear he would influence the other jurors if they realized he was challenging the jury’s racial makeup. He claims that there were about 4 blacks in the 38-person jury pool, although we have no records before us to verify this information, and defense counsel, admittedly, is unsure of the precise numbers. He concludes that this court should remand this case for a determination of the racial makeup of the jury to prove that the panel represented a cross section of the community.

The law on this matter has been established. The appellant has the burden of proving the systematic exclusion of black jurors from the venire. Gillie v. State, supra; Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989); Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983). To make a prima facie showing of systematic exclusion, the appellant has to establish the following: (1) the group allegedly excluded is a distinctive group in the community; (2) the representation of this group in the venire is not fair and reasonable in relation to the number of such persons in the community; and (3) the under representation is due to systematic exclusion. Only after the appellant has made his prima facie case by establishing these three elements does the burden shift to the State to justify its procedure. Sanders v. State, supra.

Here, there is no dispute that blacks represent a distinctive group in the community. However, the appellant did not establish the second and third elements of the Sanders test. The appellant is not certain about the racial composition of the jury pool. Added to that, he offers no statistical proof of the racial composition of the community or of the venire. Furthermore, he completely fails to offer any evidence of systematic exclusion. As a result, the appellant does not make his prima facie case, and, therefore, the burden never shifted to the State to justify its procedure. The trial court correctly denied the appellant’s objection to the jury panel.

As a final point, we emphasize once more that we will not remand a case in order for an appellant to garner more information to bolster his posture on appeal. Unlike some of our sister states, in Arkansas we entertain only one appeal from a final judgment or order which completely disposes of all issues involving all parties. Ark. R. App. P. 2(a)(1). It is incumbent upon the appellant to present a case before the trial court which fully and completely develops all issues. This, by the appellant’s own admission, was not done. Accordingly, we do not acknowledge the remedy requested by Walker. The trial court correctly refused to quash the jury panel.

Affirmed.


author: Tom Glaze, Justice.

text:
    Duke B. CLEMENT, Jr., as Successor Trustee of the Lois W. Rich Trust for Duke B. Clement, Jr., and Mary Jack Wilson v. Sara Rich LARKEY, as Trustee of the Jack W. Rich Marital Trust
    93-226
    863 S.W.2d 578
    Supreme Court of Arkansas
    Opinion delivered October 25, 1993

      The Rose Law Firm, A Professional Association, by: C. Brantly Buck and Clay H. Davis, for appellant.

      Saxton & Ayres, by: Clint Saxton-, and McDonnell Boyd, by: Lawson F. Apperson and Ross Higman, for appellee.
   Tom Glaze, Justice.

This probate court case on appeal is a companion one to a chancery court appeal (No. 93-224), and both cases, decided by the same trial judge, involve questions concerning the construction of testamentary trusts provisions in the Will of Jack W. Rich and provisions of the Will of Lois W. Rich, Mr. Rich’s wife. Lois died about eleven years after her husband. As residuary beneficiaries, appellants initiated suit in this matter in Crittenden Probate Court, seeking discovery of assets held in trust, asking for assets in the Rich Marital Trust to be placed in Lois Rich’s estate and further requesting an equal in-kind distribution of stock. Appellee, as trustee of the Rich Marital Trust, entered her appearance in the probate proceeding, and denied that any of the relief sought by appellants should be granted and specifically stated the probate court had no jurisdiction to distribute the assets or stock as appellants requested. Appellee then filed suit in Crittenden Chancery Court for a declaratory judgment, requesting a distribution of stock and assets in a manner which appellants subsequently opposed in their answer to appellee’s petition.

The probate court decided only that the distributions of assets contained in Mr. Rich’s testamentary marital trust need not pass through the estate of Lois W. Rich. None of the parties question the probate court’s ruling in this respect. Appellants are concerned with the following part of the probate court’s order:

The remaining controversies between the parties with respect to the duties and/or discretion of Sara Larkey in dividing and distributing assets of the Rich Marital Trust as Trustee thereof are being resolved contemporaneously by the Chancery Court in the above-described Chancery action. Insofar as this Court has jurisdiction of that subject matter, it adopts the Chancery Court’s findings as its judgment herein. Otherwise, this Court abstains from deciding those trust issues herein. (Emphasis added.)

The chancery court did, in fact, eventually decide those issues touching on the construction of the Richs’ wills, the distribution of the assets and stock thereunder and the validity of appellee’s actions making such distributions when she was both a trustee and beneficiary. However, out of an abundance of caution, appellants contend the probate court had no authority to decide issues involving the distribution of assets in this case, and insofar as the probate court indicated it did have, appellants ask us to reverse such a ruling. Appellants merely wish to be assured the relevant issues decided by chancery court in this cause are in no way obscured or prevented from being considered on appeal because of an erroneous probate order.

While we understand appellants’ cautious approach, we do not read the probate judge’s order to mean that the probate court was exercising jurisdiction to decide whether appellee’s proposed distribution of assets and stock is valid. Appellants are correct that neither the Arkansas Constitution nor Ark. Code Ann. § 28-1-104 (1987) confers on probate courts jurisdiction to administer a trust created by a will. See Alexander v. Alexander, 262 Ark. 612, 561 S.W.2d 59 (1978). The probate court here acted properly in this matter by deferring the related trust and distribution issues to chancery court. Therefore, we affirm the probate court’s decision. Having disposed of the jurisdiction issue raised in this appeal from probate court, we consider all remaining issues between the parties in the chancery court appeal, No. 93-224, Clement v. Larkey, 314 Ark. 489, 863 S.W.2d 580 (1993.)


author: Jack Holt, Jr., Chief Justice.

text:
    Randall D. GRITTS v. STATE of Arkansas
    CR 93-753
    864 S.W.2d 859
    Supreme Court of Arkansas
    Opinion delivered November 8, 1993

      Pope, Shamburger, Buffalo & Ross, by: Brad A. Cazort, for appellant.

      Winston Bryant, Att’y Gen., by: Sherry L. Daves, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Randall Gritts, appeals his DWI conviction on the ground that a police officer employed by Fairfield Bay, a planned community, who was also a deputy sheriff of Van Burén County, had no jurisdiction to arrest him in an area within the county but outside the community. We hold that the arrest was valid and affirm the trial court.

The Fairfield Bay Department of Public Safety (FBDPS) received a telephone call that a car was stopped on Highway 330 in Van Burén County and that the driver appeared to be asleep. Officer Gray, a police officer with FBDPS and an appointed deputy sheriff of Van Burén County, Arkansas, reported this information to the sheriff’s office by radio and in response he was instructed to “check it out.” Upon arrival, he found a 1991 Ford Bronco with the driver’s door open a few inches, lights on and motor running. Gritts was sitting in the driver’s seat. Officer Gray opened the car door and noted a strong odor of what he believed were intoxicants. When Gritts did not respond to the officer’s statements to him, the officer shook Gritts’s left arm several times to awaken him. Gritts exited the car and was administered three field sobriety tests, which he failed. He was then placed under arrest for a possible DWI.

After a finding of guilty of DWI-I in a municipal court, Gritts appealed to the Van Burén County Circuit Court and filed a motion to suppress the arresting officer’s testimony, alleging that Officer Gray was outside the territorial limits of his jurisdiction of Fair-field Bay and had no more arrest powers than a private citizen.

The issue on appeal is whether the trial judge erred in denying Gritts’s motion and in finding that Officer Gray had jurisdiction and authority to arrest Gritts in Van Burén County. Ark. Code Ann. § 14-15-503 (1987) provides in pertinent part:

(a) Every deputy sheriff appointed as provided by law shall possess all the powers of his principal and may perform any of the duties required by law to be performed by the sheriff.
(b) Deputy sheriffs are authorized to make arrests for misdemeanor offenses and felony offenses and exercise all other powers as deputy sheriffs while in the course of their employment for planned community property owner associations or suburban improvement districts.

The first rule in interpreting a statute is to construe it just as it reads by giving words their ordinary and usually accepted meaning. Farnsworth v. White County, 312 Ark. 574, 851 S.W.2d 451 (1993). Statutes relating to the same subject should be read in a harmonious manner if possible. City of Ft. Smith v. Tate, 311 Ark. 405, 844 S.W.2d 346 (1993). In interpreting a statute and attempting to construe legislative intent, the appellate court looks to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate means that throw light on the subject. Id.

Looking first at the language of sections (a) and (b) of the statute, we see that the legislature intended to provide all deputy sheriffs with the power to perform all duties as required by law to be performed by a sheriff and in addition these powers are specifically provided to deputy sheriffs while in the course of their employment for planned community property owners associations such as Fairfield Bay.

As a sheriff is given the legislative authority to be a “conservator of the peace in his county” Ark. Code Ann. § 14-15-501 (1987), the same is true of a deputy sheriff employed by a planned community for he is likewise authorized by statute to stand in the stead of his sheriff and discharge his duties throughout his county. In Dilday v. State, 300 Ark. 249, 778 S.W.2d 618 (1989), we held that deputies employed by “planned communities” have the authority to arrest.

Thus, given the fact that employees of a planned community can be deputized as sheriffs and have authority to make arrests throughout the county, the only remaining question appears to be whether or not Officer Gray, at the time of placing Gritts under arrest was in fact a Van Burén County deputy sheriff acting in his capacity as a deputy.

James Hale, Chief of Police of Fairfield Bay, explained the procedure for hiring officers such as Officer Gray. He explained that his office takes the applications, interviews prospective employees, and contacts the Sheriff’s office. The Sheriff then reviews the applications and possibly interviews the applicants. If he is satisfied with Fairfield Bay’s choice, the applicant is hired and appointed a deputy sheriff — the Sheriff having the final word on the decision. “The chain of command is the sheriff, the chief deputy and then me and my assistant.”

Carrol Ward, former sheriff of Van Burén County, testified that he deputized Officer Gray while he was working for FBDPS and that he maintained supervisory powers over him while he was deputized. A duplicate copy of Officer Gray’s official oath of office as a deputy sheriff was placed into evidence.

Relying on § 14- 15-503(b), Gritts claims that Officer Gray does not have jurisdiction to arrest outside the planned community as it provides that a deputy sheriff who is working for an improvement district is authorized to make arrests while in the course of his employment, meaning within the Fairfield Bay area. After reading the legislative history of Ark. Code Ann. § 14-15-503 (1987), the trial judge found, “Section (b) had to do with something other than specifically limiting the authority of a deputy sheriff within a planned community. I don’t feel that the Legislature intended to limit the authority of a deputy sheriff.”

The legislative history of Ark. Code Ann. § 14-15-503 (1987) supports the circuit court’s finding. Act 237 § 3 of 1977 reflects that the purpose behind broadening the powers of deputy sheriffs was to protect the public against escalating crime:

It is hereby found and determined by the General Assembly of the State of Arkansas that due to the increase in crime rate, especially in suburban areas, it is necessary to expand the authority of deputy sheriffs to provide more adequate protection to the citizens of this State, and that crime protection can be afforded planned communities by their employment of deputy sheriffs as security officers.
Therefore, an emergency is declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall take effect and be in force from the date of its approval.

Gritts also makes much of the fact that employees of the FBDPS are not, strictly speaking, considered employees of the Van Burén County Sheriffs Office. He emphasizes that FBDPS employees do not receive their paychecks from nor are they covered by the same bond as the Sheriff’s Office employees. He also mentions that pursuant to Ark. Code Ann. § 14-15-503(d) (1987), Fairfield Bay, rather than the Sheriff’s Department, must purchase and maintain liability insurance to protect its deputy sheriffs.

While this is true, these special circumstances are of no moment for it is clear from an examination of the words of the statute and its legislative history, that the legislature intended that officers who are employed by planned communities and who are also appointed deputy sheriffs have the same jurisdictional powers as other deputy sheriffs within the county of their appointment. Such was the case with Officer Gray.

Accordingly, Gritts’s conviction is affirmed.


author: Robert Dudley, Justice.

text:
    Carla Blakemore CARTON v. MISSOURI PACIFIC RAILROAD; Travelers Insurance Company, Intervenor
    93-132
    865 S.W.2d 635
    Supreme Court of Arkansas
    Opinion delivered November 8, 1993.
    [Rehearing denied December 20, 1993]

      J.R. Nash, for appellant.

      Friday, Eldredge & Clark by: Herschel H. Friday, Elizabeth J. Robben and Scott J. Lancaster, for appellee.

      Wright, Lindsey & Jennings, by: Mark L. Pryor, for intervenors.
   Robert Dudley, Justice.

Appellant Carla Blakemore Carton, the operator of a diesel fuel delivery truck owned by Gulf Oil Corporation, slipped and fell in January of 1979, while unloading diesel fuel at Missouri Pacific’s facility in North Little Rock. In 1981, she filed suit against appellee Missouri Pacific in federal district court. In 1984, she took a voluntary nonsuit. Later in 1984, she refiled the same suit in federal district court. In 1985, the district court dismissed the suit for lack of diversity. The district court made the dismissal with prejudice because it found that she had fraudulently attempted to manufacture diversity jurisdiction, and, as a result, was not entitled to the one-year period to refile after a voluntary nonsuit. The Eighth Circuit Court of Appeals affirmed the dismissal based on the lack of diversity, but directed the district court to enter a dismissal without prejudice. The district court entered the order February 19, 1987.

On April 23, 1987, appellant refiled the suit against appellee in the Circuit Court of White County. Appellee Missouri Pacific filed a motion to dismiss on the ground that the statute of limitations had run. The circuit court granted the motion. On appeal, we held that appellant could take advantage of the saving statute and reversed and remanded for trial. Carton v. Missouri Pac. R.R., 295 Ark. 126, 747 S.W.2d 93 (1988).

The case was tried on the merits in May 1989, and, at the conclusion of all of the evidence, the trial court granted a directed verdict in favor of Missouri Pacific. On appeal, we reversed. Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990). Trial of the case commenced again in June, 1991, but, after two days of trial, the trial court granted a mistrial because of unfair surprise testimony introduced by the appellant. The case was reset for trial on the merits in August of 1992. The case was tried, and the jury returned a verdict in favor of appellee Missouri Pacific. Appellant, Carla Blakemore Carton, again appeals and assigns eight of the trial court’s rulings as error. There was no reversible error, and we affirm the judgment.

Before this last trial commenced, appellant filed a motion requesting that the trial judge disqualify. The trial judge refused the request, and appellant assigns the ruling as error. Appellant does not contend that the trial judge was biased or acted with partiality in any manner. She does not contend that the trial judge acquired any personal knowledge of the disputed facts outside the knowledge he gained while presiding over the case. She does not contend that the trial judge violated Canon 3 of the Code of Judicial Conduct in any manner. Rather, she contends that, because there had been two reversals and a mistrial, the trial judge created the appearance of bias against her cause of action in the mind of the public and committed reversible error in refusing to disqualify. Appellant cites no authority for such an argument, and we are not aware of any. She cites one case for the proposition that a court must not only be fair but must also appear to be fair. If we were to accept the premise of appellant’s argument to its logical end, a trial judge would be required to disqualify from a case if he ruled against one party’s motions or objections throughout a trial. Such a result is not even suggested by the Canons. The Canons suggest that a judge disqualify when his impartiality might reasonably be questioned. Here, the impartiality of the trial judge could not be reasonably questioned.

The first reversal by this court was primarily on an abstruse issue of law. Suit was first filed in state court in 1987, two months after the federal district court’s final order, but eight years after the accident. The issue was whether appellant was entitled to the benefit of the saving statute. The trial court ruled that the statute of limitations had run. We reversed because the only evidence of fraud was the finding by the federal district court that appellant fraudulently attempted to manufacture diversity jurisdiction by misrepresenting her citizenship. However, because the federal district court was without jurisdiction, its judgment was without validity as evidence, and there was no other independent proof of fraud. Without the evidence of fraud recited in the judgment there was no evidence of fraud; therefore, we reversed. No person would reasonably think that the trial judge’s ruling evidenced any partiality.

Next, the mistrial was caused entirely by the actions of appellant’s attorney in attempting to present undisclosed evidence. Again, no person would reasonably question granting a mistrial on such an occurrence. The second reversal occurred when the trial court granted a directed verdict for appellee. We reversed, and held that when the evidence was viewed in the light most favorable to appellant, there was substantial evidence from which the jury might have found that the railroad did not properly maintain its premises. It was a close case. After remand, the trial judge manifestly thought he was impartial, and could retry the case fairly. The record reflects that he presided with impartiality, with diligence, and with patience. There was no valid reason for the judge to disqualify. A judge has a duty to remain in a case unless there is some valid reason to disqualify.

Appellant’s next assignment involves a ruling allowing appellant’s employer’s worker’s compensation carrier to intervene to protect its right of subrogation. Section 1 l-9-410(a)(l) of the Arkansas Code Annotated of 1987 gives the carrier the right to intervene, and, as a result, the carrier could intervene as a matter of right under ARCP Rule 24(a). Even so, appellant contends that the intervention was not timely. The record refutes the argument. The carrier first intervened when the action was pending in the federal district court. Later, in 1981, a stipulation was signed by the attorneys for the carrier and for appellant, which provided the carrier had a lien in the federal action. The action in federal court was dismissed, and the cause was refiled in circuit court. Appellant did not notify the carrier of the action in circuit court. Rather, the trial coürt notified the carrier, and the carrier immediately filed a motion to intervene. Subsequently, the trial court granted a directed verdict, and appellant appealed. Appellant did not notify the carrier of the appeal. The case was reversed and remanded. Again, appellant did not notify the carrier that the action was to be retried. Once more, the trial court caused the carrier to be notified, and the carrier again moved to intervene. The trial court then allowed the intervention at issue.

Timeliness of intervention under ARCP Rule 24(a) is a matter within the discretion of the trial court and will not be disturbed absent some abuse of discretion. Cupples Farm Partnership v. Forrest City Prod. Credit Ass’n, 310 Ark. 597, 839 S.W.2d 187 (1992). Timeliness is to be determined from all the circumstances. Id. at 603, 839 S.W.2d at 190-91. There is nothing in the record to show that the trial court abused its discretion in allowing the intervention.

Appellant additionally argues that the ruling allowing intervention should be reversed because the intervenor refused to share in the costs of this litigation. Appellant relies on Northwest National Insurance Co. v. American States Insurance Co., 266 Ark. 432, 585 S.W.2d 925 (1979), as authority for her argument. The cited case holds that when an insurance company has benefited from the work done by the insured’s attorney, there is no inequity in requiring it to bear its fair share of the collection expense. However, in the case at bar, neither appellant nor the carrier has collected any money from the work done by appellant’s attorney. Proceeds of a recovery simply are not at issue. Instead, the issue is whether the carrier should be allowed to intervene to protect its right of subrogation when the applicable statute gives it the right to do so. Again, the trial court ruled correctly in allowing the intervention.

Appellant makes another assignment that is equally ambage. She argues on appeal that the trial court erred in refusing to allow her to introduce evidence that, as a result of the accident, she became emotionally incompetent to handle her own financial affairs, and, consequently, it was necessary for her to incur legal expenses to set up an irrevocable trust to administer any recovery she might receive from this suit. The authority cited by appellant is A.M.I. 2205, which allows a party to recover for mental anguish. We do not reach the issue because the same argument was not presented to the trial court. The issue the trial court ruled on came about as follows. Months before the trial commenced, the trial court wrote the parties a letter which provided, in the material part:

If the existence, advisability, and basis of the trust account are admitted as evidence, the defendant may present competent evidence challenging those issues. There must be, of course, competent evidence that the trust was created as a proximate result of the plaintiff’s injuries.

After the letter was received by counsel, but before the trial started, Missouri Pacific moved to prevent mention of the trust. Appellant argued that the costs incurred in setting up the trust were allowable damages. The court granted Missouri Pacific’s motion, but stated that it would reconsider if a proper foundation were laid by appellant at trial. During appellant’s case-in-chief, in her examination of her psychologist, Dr. Doug Stevens, counsel asked the court to go into chambers for a discussion of the trust issue. At the time, appellant’s attorney had just asked Dr. Stevens if he recommended establishing some mechanism for handling appellant’s finances, and appellee had objected. In chambers, the trial court ruled:

I suspect that if that information is elicited from the witness as one of the bases for his evaluation and recommendation for this plaintiff, on that basis it may be admissible.

A few moments later, while still engaged in the same proceeding in chambers, the trial judge said:

Frankly, I do not know what impact information the trust disclosed to the jury has upon—I simply don’t know what the questions or answers will be.

Still later during the same colloquy in chambers, and in response to appellant’s attorney, the trial judge stated:

You may be right. As I said, I don’t know what the questions and answers are going to be.
The details of the trust agreement really do not go to the issue of liability or damages, and the court has indicated that the plaintiff may establish that a recommendation was made by this doctor to establish a mechanism for the plaintiff’s affairs to be handled by somebody else. Maybe not that far, but once you get past that, Mr. Nash, what would be the relevance of establishing the details of the trust agreement?

Appellant asked no questions about alleged damages incurred as a result of creating the trust. She did not lay the foundation as requested by the court. The trial court ruled correctly on the issues that it was asked to rule upon.

Appellant also assigns as error the trial court’s refusal to instruct the jury on damages for the aggravation of a pre-existing condition. See A.M.I. 2203. Again, the record does not support the argument. Appellant suffers from a degenerative congenital spinal disorder, spondylolisthesis, which was asymptomatic prior to the accident. On appeal, she argues that it was aggravated by the accident. However, at trial, while appellant and a physician, Dr. Hundley, testified to the pre-existence of spondylolisthesis, no one testified that this condition was aggravated by the accident. In response to appellant’s request for the instruction the trial court ruled:

I’m just looking at my notes during the testimony of Dr. Hundley, in which I believe he said that it was his understanding that the prior congenital problem which the plaintiff had did not relate to pain complaints from the fall [this cause of action], and in regard to the car wreck in which she was involved [a separate incident], that the car wreck was not an aggravation of her back.

Appellant said nothing in response to the trial judge’s recollection of the testimony. A trial court is not obligated to give a requested instruction absent some testimony suggesting aggravation. See Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987).

Appellant also assigns as error a ruling which, she contends, violated the collateral source rule. There is no need to discuss the issue, because, even if the ruling might have been in error, we would not reverse. We have said that it is error to disclose to the jury compensation that is not to be deducted from the recovery because of the strong possibility of prejudice. Amos v. Stroud, 252 Ark. 1100, 482 S.W.2d 592 (1972). However, in this case the jury returned a general verdict for the defendant. The jury may well have reached its verdict by determining that the defendant was not negligent or that plaintiff’s fault was equal to or greater than that of the defendant. Consequently, the jury may have never considered the issue of damages, and plaintiff-appellant cannot show prejudice. We will not reverse in the absence of a showing of prejudice. See Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993), a case which is precisely in point.

In two separate assignments, appellant contends that the trial court committed reversible error in refusing to allow her to introduce three photographs at two different times during the trial. The proffered photographs are not attached to appellant’s abstract. Under Ark. Sup. Ct. R. 4-2(a)(6), photographs which must be examined for a clear understanding of the testimony must be attached to the abstract unless this procedure is shown to be impracticable and waived by the court on motion. When an exhibit is necessary to an understanding of the testimony about an issue, but is not included in the abstract, we have summarily affirmed on that issue. Pennington v. City of Sherwood, 304 Ark. 362, 802 S.W.2d 466 (1991). Appellant contends in her reply brief that she proffered the three photographs on the first occasion so that the jury could see “the actual area of spills and the tremendous difficulty the drivers for Gulf Oil had in emptying their hoses at the appellee’s diesel fuel unloading facility because of the height of the intake spigot.” We cannot determine from the verbal description of the photographs in the abstract whether the photographs actually depict spills that would cause tremendous difficulty for drivers, and we cannot determine whether appellant suffered prejudice by their exclusion. A party must not only show error, but must also show prejudice. Baldwin Co. v. Ceco Corp., 280 Ark. 519, 659 S.W.2d 941 (1983). Since it is necessary for us to view the photographs to decide this point, and the photographs are not attached to the abstract, we summarily affirm the trial court’s ruling excluding the proffered photographs the first time they were offered.

We do however reach the merits of appellant’s assignment about the second time the same pictures were offered because the descriptions of the photographs are sufficient for an understanding of that issue. The photographs are described as showing the surface area of a part of the unloading facility. The surface of the facility is covered with a type of gravel known as SB-2 crushed rock. Each of the rocks is porous and is crushed to about three-fourths inch in diameter. The porous gravel was placed over the ground so that it would absorb the fluids that would be spilled by the unloading trucks. Appellant’s theory of the case was that Missouri Pacific was negligent in allowing oil soaked gravel to remain on the ground so long that it became dangerous for an invitee to walk on it. Under her theory, Missouri Pacific was negligent in not taking up the old oil soaked gravel and then spreading clean gravel over the grounds. After appellant was injured, appellee Missouri Pacific did spread clean gravel over the area. The photographs, taken four months after the accident, reflect the clean gravel that was placed on the surface. The trial court refused to allow the pictures into evidence, and appellant assigns the ruling as error.

Rule 407 of the Arkansas Rules of Evidence prohibits a party from using, as proof of negligence, evidence of subsequent remedial measures taken by the other party that would have made the accident less likely to occur if taken before the accident. These were pictures that reflected remedial measures taken by the defendant. The trial court correctly applied this rule, and we could end discussion of the point with that statement. However, appellant argues that our case law makes the photographs admissible, and cites Riggan v. Langley, 238 Ark. 649, 383 S.W.2d 661 (1964), as authority for her argument. In that case we approved the admission of a photograph taken over a year after the accident. The photographs showed ditches that were more shallow than they had been at the time of the accident, and we approved the admission of the photographs and an explanation to the jury of the difference. However, the case involved changes in the ditches by a third party, not the defendant. Here, the defendant made the changes as a remedial measure. Thus, the cited case is not contradictory to the rule. If the trial court had admitted the proffered photographs, the appellee could have been prejudiced in the precisely the manner Rule 407 seeks to prevent.

Appellant additionally contends that the trial court erred in refusing to allow her to use the pictures to impeach the testimony of a witness about the height of a valve that is shown in the pictures. Under Rule 407, even if the pictures could not be admitted as evidence of negligence, they might be admitted for the purpose of impeachment. However, a trial court may prohibit their use for impeachment if it deems the evidence irrelevant under A.R.E. Rule 401, or prejudicial under A.R.E. Rule 403. See 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence § 407[05], at 407-40 (1993). The trial court ruled that one of the pictures was more prejudicial than probative. In chambers, the trial court stated:

Plaintiff’s request to use plaintiff’s exhibit 4, which was earlier proffered, is not allowed. The reason is that it is agreed that plaintiff’s alleged fall occurred at the first pump, which on this photograph is to the extreme right, and plaintiff’s counsel indicated he wanted to show the picture to the witness to show the oil spillage at the second pump, which was to the left.

Without the picture being abstracted, we must take the trial court’s finding of fact as correct. The valve at the first pump, where the fall occurred, is apparently on the far right side of the picture, but the left side of the picture shows some oil spillage on the new gravel. The trial court thought the prejudice from showing oil spillage on the new gravel at the second pump outweighed any probative value of viewing a pump that is in the far right side of the picture. Under these circumstances, we cannot hold that the trial court erred in its ruling. We are left then with the ruling on the other two pictures.

Shortly after the above quoted ruling, the trial court ruled in appellant’s favor, as follows:

As I said yesterday, the court doesn’t want to be put in a position of pre-trying this case to the court and then to the jury, and I don’t want to anticipate the exact nature of the questions you plan to ask the witness. What I’m saying is you have asked the court to allow you to show those pictures to contradict the witness’s testimony about the height of the intake valve and the location of the spillage, and I’m doing that on those two exhibits, so I’m granting what you asked me to do.

Appellant’s counsel then asked to be allowed to introduce the two pictures and to explain that the gravel was new. The appellee objected to such an explanation. Appellant’s attorney then stated, “I can’t show the jury part of a picture. That’s impossible.” The trial court ruled, “I can’t suggest to you how that could be done or not done. I will stick with my ruling.”

In summary, the trial court ruled that the two pictures could be admitted for the purpose of impeachment, and appellant will not now be heard to complain of that ruling in her favor. However, appellant wished to go further than merely having the photographs admitted; she asked to explain that the gravel had been replaced after her injury. The trial court declined to allow the explanation. The ruling was correct. The two photographs were admissible, if at all, for the purpose of determining whether the witness was telling the truth about the height of the valve. Explaining that the gravel was replaced after appellant’s injury was not relevant to whether the witness was telling the truth about the height of the valve. In addition, since subsequent remedial measure evidence is deemed prejudicial under Rule 407, the trial court could have reasonably concluded that some kind of explanation about the photographs was more prejudicial than probative under Rule 4Ó3. Finally, the trial court stated that it did not want to be required to rule on questions before they were asked. The trial court asked appellant’s counsel to ask specific questions so that appropriate rulings could be made. Appellant did not ask the specific questions, and we additionally affirm because counsel never asked specific questions and did not obtain specific rulings. We have no way of knowing what the explanation might have been and no way of knowing what a proffer might have shown.

We last address appellant’s assignment asserting error for failure to remove a seated juror from the panel and replacing her with an alternate juror. The argument is two-fold: First, she contends that the juror is related by affinity to a paralegal in the office of appellee’s law firm, and therefore, was disqualified, and, second, she contends the juror should have been disqualified because she had a material interest in the outcome of the case. Neither argument has merit.

Section 16-31-102(b)(1) of the Arkansas Code Annotated of 1987 provides, in part, “Except by consent of all the parties, no person shall serve as a petit juror in any case who ... is related to ... an attorney in the cause within the forth degree of consanguinity or affinity.” Relation by affinity is “that which arises from marriage between the husband and the blood relations of the wife, and the wife and the blood relations of the husband.” North Ark. Ry. Co. v. Cole, 71 Ark. 38, 39-40, 70 S.W. 312, 313 (1902). Degrees of relationship are counted by the number of degrees removed from the common ancestor. See Ark. Code Ann. § 28-9-212 (Supp. 1993). The statute provides for disqualification of a venireman who is related to an attorney within the fourth degree. In this case, a seated juror notified the bailiff that she realized she had a relationship with someone involved in the case. The bailiff notified the trial court. The court invited the juror into chambers in the presence of counsel. In chambers, the court questioned the juror, and she replied that her husband was a cousin of a paralegal working for appellee’s law firm. However, she said that she barely knew the paralegal and did not even know her last name. The court then asked counsel if they had any questions. Appellant’s counsel replied, “No.” The record does not establish whether the juror was a first cousin of the paralegal or a cousin five times removed. In a similar case, Shaffstall v. Downey, 87 Ark. 5, 7, 112 S.W. 176, 177 (1908), we wrote:

The challenging party should have made out a prima facie case of the juror’s relationship within the prohibited degree by questions asked by the juror or by the offer of other proof. Failing to do this, there was no error in the ruling of the court pronouncing him a competent juror.

Similarly, no error is shown in the ruling in this case. Since the juror is not shown to be within the prohibited degree of relationship, it is not necessary for us to decide whether a paralegal should be construed to be an “attorney in the cause” as defined in the statute.

Appellant’s second part of this argument is that the juror should have been replaced because she had a material interest in the outcome of the case. Again, the record refutes appellant’s argument. Near the end of the trial, appellant’s counsel stated that the juror’s husband, who is a lawyer, had possibly worked in a law firm with another attorney who had represented the appellant in another matter and appellant still owed that other attorney some money. There was no evidence whatsoever in support of the argument, and we affirm on that basis.

Finally, the workers’ compensation carrier that intervened in this action thought it was necessary for it to supplement the abstract that appellant filed in this court. The carrier has asked for $630.00 as costs for the preparation of the supplemental abstract. Some, but not all, of the supplementation was necessary for us to have all of the facts necessary to an understanding of the intervention issue. Accordingly, on the carrier’s motion, we allow $200.00 as costs for the preparation of the supplemental abstract.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    James Phillip HAGEN v. STATE of Arkansas
    CR 93-880
    864 S.W.2d 856
    Supreme Court of Arkansas
    Opinion delivered November 8, 1993
    [Rehearing denied December 13, 1993]

      Doug Norwood, for appellant.

      Winston Bryant, Att'y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

On March 25, 1992, appellant James Phillip Hagen battered Paula Milsap. On July 11, Milsap filled in the affiant’s part of a “City Attorney’s Form Affidavit” in which she swore that appellant beat her. The form was also signed by a deputy city attorney and,' in part, provides that appellant committed third degree battery, a misdemeanor, upon Mil-sap in violation of Ark. Code Ann. § 5-13-203 (1987). A municipal judge found that the recitations contained in the form demonstrated probable cause for the issuance of an arrest warrant. A warrant was issued, and appellant was arrested. No other charging instrument was filed. Appellant was found guilty in municipal court of third degree battery and appealed to circuit court. In circuit court he moved to dismiss the case on the ground that he had never been charged by information, indictment, or citation. Appellant argued that to try him for a crime with which he had never been charged would violate his right to due process under the Fifth, Sixth, and Fourteenth Amendments of the Constitution of the United States and would also violate Article 2, Section 10 of the Constitution of Arkansas. The circuit court denied the motion. A jury found appellant guilty of the misdemeanor, and the circuit court entered a judgment of conviction. Appellant appeals. We affirm the judgment because the circuit court reached the right result, albeit, for the wrong reason.

The circuit court ruled that appellant appealed to circuit court from a conviction in municipal court for third degree battery and, as a result, had notice in the de novo circuit court hearing of the charge from which he appealed. We cannot uphold the conviction on that basis. The conviction of a person for a crime with which he was never charged constitutes a clear violation of the right to due process. Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992). When there is no valid charging instrument, and yet the defendant is convicted in a court of limited jurisdiction, there is a void judgment of conviction in the court of limited jurisdiction. A void judgment cannot provide valid notice for a subsequent proceeding in circuit court. Rector v. State, 6 Ark. 187 (1845). Thus, the conviction in municipal court, if void, would not have provided notice of the charge in circuit court.

The State admits that neither an information, nor an indictment, nor a citation was filed in this case, but asks us to declare the error harmless. We have clearly indicated that we would not apply the harmless error doctrine in a case in which a criminal defendant was never charged. In Hedrick v. State, 292 Ark. 411, 730 S.W.2d 488 (1987), we wrote that “a conviction upon a charge not made would be sheer denial of due process.” Id. at 413, 730 S.W.2d at 490 (citing Thornhill v. Alabama, 310 U.S. 88 (1940)). In Allen v. State, 310 Ark. 384, 386, 838 S.W.2d 346, 347 (1992), we wrote:

Some constitutional rights are so basic to a fair trial that their violation “can never be treated as harmless.” Gomez v. United States, 490 U.S. 858 (1989). Examples are the right to counsel, see Penson v. Ohio, 488 U.S. 75, 88 (1988), and the right for a grand jury proceeding to be free of racial discrimination. Vasquez v. Hillery, 474 U.S. 254 (1986). In Pope v. Illinois, 481 U.S. 497, 502 (1987), the opinion of the court states that the harmless error inquiry is appropriate only when the trial was not fundamentally unfair. Quite probably one’s right to be informed of a charge is that type of fundamental right that cannot be reviewed for harmless error since the right to notice of a charge is “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Schad v. Arizona,__ U.S._, 111 S. Ct. 2491, 2497 (1991) (quoting Speiser v. Randall, 357 U.S. 513, 524 (1958)).

We have clearly indicated in the above opinions that we would refuse to apply the harmless error doctrine in a case in which a person was never charged, but it is not necessary for us to make such a holding in this case.

The trial court reached the right result because appellant was, in fact, given adequate notice under the Fifth, Sixth, and Fourteenth Amendments of the Constitution of the United States, as well as under Article 2, Section 10 of the Constitution of the State of Arkansas. The Attorney General is in error in conceding that a valid charging instrument was not filed. The Supreme Court of the United States set forth the requirements for a valid charging instrument as: (1) including the elements of the crime, (2) providing adequate notice as to the charge, and (3) providing protection against double jeopardy. Hamling v. United States, 418 U.S. 87, reh’g denied, 419 U.S. 885 (1974); see also 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 19.2 (b) (1984).

Article 2, Section 8 of the Constitution of Arkansas requires that a defendant shall not “be held to answer a criminal charge unless on present of indictment.” Amendment 21 provides that informations may be used the in the same manner as indictments. Article 2, Section 10 requires that an accused shall be “informed of the nature and cause of the accusation against him, and to have a copy thereof.” We interpreted an earlier constitutional provision to require that the charging instrument be specific enough to: (1) inform the defendant of the charge he is called upon to answer, (2) inform the court of a definite offense, and (3) protect the defendant against double jeopardy. State v. Cadle, 19 Ark. 613 (1858). We have said an information or indictment is not necessary for a misdemeanor charge. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). The Rules of Criminal Procedure provide for the issuance of a warrant, citation, or summons to command an accused to court on a misdemeanor charge. See generally Article III of the Rules of Criminal Procedure, see also Terry R. Kirkpatrick, Arrest, Citation, and Summons—The Supreme Court Takes a Giant Step Forward, 30 Ark. L. Rev. 137 (1976).

City attorneys can file charging instruments in municipal court for misdemeanor violations of state or city law committed within the jurisdiction of the municipal court. Ark. Code Ann. § 14-42-112 (c) (Supp. 1993). A charging instrument was in fact filed in this case. The requirements for an information or indictment are set out in Ark. Code Ann. § 16-85-403 (1987). The instrument must also conclude with the language “Against the peace and dignity of the State of Arkansas.” Ark. Const, art. 7, §49.

In this case the first page of the “City Attorney’s Form Affidavit” is styled “In The Municipal Court of Springdale.” Below the style, the instrument recites the appellant’s name as the defendant, recites that it is prepared pursuant to Rule 7.1 of the Arkansas Rules of Criminal Procedure, and, in part, provides:

[T]hat the above named person has committed the offense of violating the Arkansas Code of 1987 (as amended) 5-13-203 on or about the 25th day of March, 1992, committed by unlawfully with the purpose of causing physical injury to another person, he causes physical injury to another person, or recklessly causes physical injury to another person in Springdale, Arkansas, against the peace and dignity of the State of Arkansas.

The foregoing language tracks the language of the third degree battery statute. In another place the instrument recites that third degree battery is a class A misdemeanor. On the second page of the instrument, the affiant swore to the following statement:

On 3-25-92 at approximately 0015 after having been out drinking they went home to 1609 Steele and defendant became outraged. He began striking affiant with his fists blacking her eye and cutting the back of her head. He has threatened to kill her if she prosecutes him. He has beaten her often after having been drinking. She was referred to county prosecutor for felony terroristic threatening.

A deputy city attorney signed the instrument and acknowledged that the affiant executed the instrument before him. Following the deputy city attorney’s signature there is a separate return reflecting that the municipal judge examined the instrument and found that it demonstrated reasonable cause for the issuance of an arrest warrant for the offense shown. On a separate form appellant acknowledged in writing that he received a trial notice from the municipal court that he was to be tried for third degree battery on July 1, 1992. The instrument signed by the affiant and the deputy city attorney meets all of the notice requirements of due process under the Fifth, Sixth, and Fourteenth Amendments of the Constitution of the United States, and it meets the notice requirements of Article 2, Section 10 of the Constitution of Arkansas. There may well be irregularities in the form of the instrument, but they are the sort of irregularities that are waived if not raised. Accordingly, we hold that the accused was not deprived of his constitutional rights to due process, and we affirm the judgment of conviction.

Affirmed.


author: Steele Hays, Justice.

text:
    The MAUMELLE COMPANY, DeHaven, Todd & Co., John DeHaven, and Michael Todd v. Glenn and Cavonna ESKOLA
    93-143
    865 S.W.2d 272
    Supreme Court of Arkansas
    Opinion delivered November 8, 1993

      John T. Harmon and George E. Pike, for appellants

      Gary Eubanks & Associates, by: James Gerard Schulze, William Gary Holt, and Robert L. Gross, for appellees.
   Steele Hays, Justice.

Appellees Glenn Eskola and Cavonna Eskola brought this action at law against The Maumelle Company, DeHaven, Todd & Co., a partnership, John DeHaven and Michael Todd. The Maumelle Company, which is owned by DeHaven, Todd & Co., marketed property in the City of Maumelle which was owned by the partnership, DeHaven, Todd & Co. John DeHaven is the president and C.E.O. of the company and the partnership. DeHaven and Todd each own fifty percent of the partnership.

On November 20, 1989, the Eskolas signed a real estate contract and installment note for the purchase of a lot in the Edgewater II subdivision of the City of Maumelle being developed by The Maumelle Company. The purchase price was $29,000. The Eskolas intended to sell the lot in about nine months for a profit. They contended that The Maumelle Company represented the lot as a short-term investment and agreed to assist in selling the lot. The Eskolas claimed The Maumelle Company representative indicated the price of the lots would increase when the improvements- paved roads and utilities- were completed within a six to nine month period. There was evidence the improvements were not completed within that time and The Maumelle Company made no attempt to sell the Eskolas’ lot. The Maumelle Company referred the Eskolas to real estate agents; however, The Maumelle Company did not market the lot as part of its own sales presentations.

The Eskolas filed a complaint in the Pulaski County Circuit Court alleging fraud, deceit, and misrepresentation by the defendants. The plaintiffs filed an amended complaint alleging that lots were sold in violation of the Interstate Land Sales Full Disclosure Act (ILSFDA), 15 U.S.C.A. § 1701 et. seq. The Eskolas maintained they had not been furnished a “property report” as required under ILSFDA. The amended complaint requested the following relief: return of the down payment and all other payments, plus interest, attorney’s fees, and any other proper relief. The defendants moved to transfer the case to chancery court on the ground that rescission was exclusively w.ithin equitable jurisdiction.

On the morning of the trial, the Eskolas tendered a warranty deed to the defendants in exchange for the money they had paid for the lot, which was then free of liens. The defendants refused the tender and objected to the case proceeding at law on the theory of rescission. They contended the correct measure of damages was the difference between the value of the lot and the amount paid by the Eskolas. The Eskolas then stipulated to the court that they would convey the property back to the defendants conditioned on the recovery of their actual losses and payment thereof. Mr. Eskola testified that he had previously offered to return the lot to the defendants in exchange for the purchase price.

The jury found that The Maumelle Company, DeHaven, Todd & Co., and Jay DeHaven violated the ILSFDA and that The Maumelle Company and Jay DeHaven had committed fraud. The jury awarded the Eskolas $34,227.73 in compensatory damages and $29,000 in punitive damages. The $34,227.73 was the amount the Eskolas had paid for the property, plus interest, less any tax savings which they had received. The Eskolas- also recovered attorneys’ fees of $40,000.

Four points for reversal are presented by this appeal: it was error to submit to the jury the issue of The Maumelle Company’s alleged evasion of the Federal Interstate Land Sales Full Disclosure Act; the circuit court lacked jurisdiction to grant rescission; there was no proof of fraud by The Maumelle Company, nor any damage by the Eskolas; and the issue of punitive damages should not have been submitted to the jury. We agree that the circuit court lacked jurisdiction to grant the relief ordered.

The Eskolas sought damages equal to the price paid for the lot plus interest and that was the amount awarded. The remedy which was afforded by the trial court returned the parties to their respective positions at the time of the sale. Rescission is a remedy cognizable in equity, and it may form the basis of restitution at law if the rescission is accomplished by the party who then seeks restitution at law. Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980) rehearing denied, March 31, 1980. We have recognized that in an action for rescission of a contract in a court of equity the court applies equitable principles in an attempt to restore the status quo or place the parties in their respective positions at the time of the sale. Cardiac Thoracic & Vascular Surgery, P.A. v. Bond, 310 Ark. 798, 840 S.W.2d 188 (1992). That was the effect of the judgment in this case.

Initially, the Eskolas contend because this case involves “rescission at law,” the circuit court-did not have to order a transfer of title. In Herrick v. Robinson, supra, we recognized that rescission is cognizable at law as well as in equity. With rescission in equity the affirmative powers of the court of equity are used to rescind, or undo, the contract. Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988). However, at law it is the return or tender of the property that effectuates the rescission and the law court merely grants restitution. Id. In such cases the rescission is by act of the party and is a condition precedent to bringing an action to recover money owed by the other party to the contract; a recovery is dependent on the fact that the plaintiff has rescinded the contract by returning or tendering the property to the defendant. Unless rescission has occurred, the remedy of restitution is not available. 12A C.J.S., Can. Inst. § 4, 646-647. Thus, rescission at law is accomplished when one party to a contract tenders or returns to the other party the benefits received under the contract. Savers Fed. Sav. & Loan Ass’n v. First Fed. Sav. & Loan Ass’n, 298 Ark. 472, 768 S.W.2d 536 (1989), rehearing denied, May 30, 1989.

In this case, the Eskolas’ belated tender of the deed was not sufficient to maintain an action at law. Mr. Eskola testified that he owned the property and had been attempting to sell the property until the day of the trial. Even when the deed was finally tendered it was on condition that the Eskolas be awarded their actual losses, accompanied by a recovery.

To maintain an action at law, the tender must be done at or prior to the time of the commencement of the action. Kracl v. Loseke, 461 N.W.2d 67 (Neb. 1990); quoting from Rasmussen v. Hungerford Potato Growers Ass’n, 195 N.W. 469 (Neb. 1923). Generally, the tender must be complete and unequivocal. D. Dobbs, Handbook on the Law of Remedies § 4.8 (1973). In Cruickshank v. Griswold the attorney for the plaintiff sent a letter to the defendant which stated: “[u]pon the payment of $1350 to this office, I shall deliver to you a deed signed by Mr. and Mrs. Cruickshank conveying the land in question back to you.” 104 A.2d 551 (Rhode Island 1954). The Rhode Island Supreme Court held that the letter did not amount to a definite and unequivocal tender. Id. In Anson v. Grace, the Supreme Court of Nebraska held that the tender requirement was not met where the plaintiffs made a conditional tender in a “notice of rescission.” 117 N.W.2d 529 (Neb. 1962). In Anson the offer to reconvey was made on the condition that the plaintiffs return the consideration for the purchase. Id.

The Eskolas did have at least one option for protecting their interest after tender of the deed. One court has determined that tender is sufficient to proceed on a legal rescission claim where the plaintiffs tendered a quitclaim deed and remained in possession of the land only for the purpose of protecting their interest in obtaining reimbursement for the payments and improvements which they made. Brooks v. Jensen, 270 P.2d 425 (Idaho 1954). However, the Eskolas’ tender was conditional and they continued to attempt to sell the property rather than simply protect their interest. Their stipulation that they would tender the deed to the defendants upon an award by the jury does not equate with a complete and unequivocal tender. The very fact that the tender was conditional made it equivocal and incomplete. The Eskolas continued to exercise control over the property throughout the proceedings. Further, in order to maintain an action at law, the rescission must have occurred prior to commencement of the proceedings. The stipulation in this case occurred the morning of trial.

The Eskolas contend the circuit court has authority to grant a rescission under ILSFDA. The only support for the argument is the language of the ILSFDA statute. ILSFDA confers upon district courts of the United States jurisdiction over offenses and violations under this chapter, concurrent with state courts, of all suits in equity and actions at law. 42 U.S.C.A. 15 § 1719. ILSFDA does allow a buyer to bring an action at law or in equity; however, we have recognized that rescission of instruments or agreements to prevent inequitable or unjust results is cognizable in equity. American Ins. Co. v. Mountain Home School Dist. No. 9, 300 Ark. 547, 780 S.W.2d 557 (1989); Myers v. Hobbs, 195 Ark. 1026, 115 S.W. 880 (1938). In fact, the equitable remedy of rescission can only be accomplished in a court of equity. See Savers Fed.., supra.

Although the ILSFDA allows the plaintiff to bring an action in state court, the federal statute does not supersede the procedural requirements of the state court. The procedural requirements of our equity and law courts must be applied to determine which state court has jurisdiction. “If the remedy sought pursuant to the federal law in an Arkansas court is a traditionally equitable remedy, it must be sought in the only court having jurisdiction to grant it.” Arkansas State Medical Board v. Leipzig, 299 Ark. 71, 770 S.W.2d 661 (1989), rehearing denied June 26, 1989, (Newbern, J. dissenting).

In sum, there was no effective tender prior to commencement of the action enabling the Eskolas to proceed at law. Because the circuit court fashioned an equitable remedy the judgment must be reversed with directions to transfer to the chancery court. The remaining points concern issues which have not been presented to the chancellor; hence, they remain open for purposes of retrial.

Reversed and remanded.


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    Max BALDISCHWILER, et al. v. John E. ATKINS, et al.
    93-268
    864 S.W.2d 853
    Supreme Court of Arkansas
    Opinion delivered November 8, 1993

      Marian M. McMullan, for appellant.

      David E. Smith, for appellee.
   Tom Glaze, Justice.

This case involves certain covenants contained in an original bill of assurance and its later amendment filed in connection with a forty-one lot residential subdivision in Saline County named Oak Forest. In 1984, appellees had purchased a forty-acre tract which touched the southwest comer of the Oak Forest subdivision, and the tract is immediately south (sharing a common boundary) of an eighty-acre tract owned by Ms. Wood and Ms. Koonce. Appellees’ and the Wood-Koonce properties were landlocked. In 1986, appellees approached Ken Harper, the developer of Oak Forest, about buying subdivision property so they could gain access to their forty-acre tract. Harper, who owned all of the subdivision, agreed.

Appellees took an option to purchase Lots 24 and 25, negotiated an easement over the Wood-Koonce property and then Wood and Koonce received a corresponding easement over Lots 24 and 25 which were purchased by appellees. Harper agreed to include in paragraph 4 of the subdivision’s original bill of assurance an exception so that Lots 24 and 25 could be used for street purposes. The subdivision’s other lots remained subject to the residential use restriction. The original bill of assurance was filed on February 7, 1986, but because it had not been properly acknowledged, an amendment which was properly acknowledged was filed on August 22, 1986. In 1987, appellees cut a street, extending across Lots 24 and 25, at an expense of $2,800.

Appellants, who own residential lots in Oak Forest, generally claim that, when Harper sold them their lots, the original bill of assurance and plat of Oak Forest shown them failed to reflect that Lots 24 and 25 had been excepted from the residential-use restriction. They also assert that the street cut on those lots appeared as “a mere scraping of the land” and was insufficient to put appellants on inquiry that a street had been constructed. When appellants later became aware that Lots 24 and 25 had been excepted from the residential-use restriction contained in the original bill of assurance, they proceeded to amend the original bill pursuant to its provisions that allowed amendment of the bill’s covenants and restrictions upon agreement of at least 50% of the lot owners and upon approval of the Saline County Planning Commission. This amendment, filed on November 8, 1991, modified paragraph 4 of the original bill so as to restrict use of all subdivision lots to residential or single-family dwelling purposes. In other words, under the modification, appellees’ two lots became burdened with the residential-dwelling restriction.

Appellees filed suit claiming the appellants’ amended bill of assurance was oppressive and deprived appellees of the use for which they had purchased Lots 24 and 25. Appellants counterclaimed, seeking to enforce their 1991 amendment, and also filed a third-party complaint against Wood and Koonce requesting cancellation of the easement granted them by appellees over Lots 24 and 25. The trial court set aside appellants’ 1991 amendment to Oak Forest’s original bill of assurance, finding that appellees had shown by clear and convincing evidence that appellants’ amendment improperly affected appellees’ use of Lots 24 and 25. It also dismissed appellants’, counterclaim and third-party complaint with prejudice.

Appellants’ two primary arguments on appeal are that, as a matter of law, the trial court erred (1) by voiding appellants’ 1991 amendment to the Oak Forest bill of assurance and (2) in refusing to enforce the amendment. In arguing that the 1991 amendment is valid, appellants point out that, although appellees may have previously acquired an exception to Oak Forest’s residential-dwelling.restriction, appellees were also aware that, under the original bill ofassurance’s own provisions, appellees’ street-use exception could be amended or cancelled upon at least 50% of the owners of property in the subdivision so agreeing. Appellants add that it is undisputed that their 1991 amendment was duly adopted in compliance with the amending provisions of the subdivision’s bill of assurance.

Appellants largely rely upon this court’s decision in Eagle Mortgage Corp. v. Johnson, 244 Ark. 265, 427 S.W.2d 550 (1968). There, Johnson and others were property owners in Hollywood Heights Subdivision, Saline County, Arkansas, which had a bill of assurance recorded on November 13, 1962, that contained a restrictive covenant prohibiting temporary structures such as mobile homes. The bill also provided in its paragraph 12 that the covenants or restrictions in the bill could be amended or modified by the owner(s) of at least 50% in the area of the land in the subdivision. In March of 1967, Eagle Mortgage (and Western Realty Co.) owned more than 50% of the subdivision land area and amended the 1962 bill to permit mobile homes. Johnson brought suit to enjoin Eagle and Western from selling lots on which mobile homes would be placed. The trial court held that the provision contained in Hollywood Heights’ bill of assurance, providing for the bill’s amendment, was an “abuse of law,” ambiguous, against public policy and therefore void. On appeal, this court reversed and held that a provision in a bill of assurance giving the power to subsequently amend or modify the provisions of the original bill is valid. In so holding, the court further stated the following:

Certainly, we can understand the position of the appellees, and the desire of those who have built their homes, to maintain the original restrictions; however, Paragraph 12 was a part of the bill of assurance when the lots were purchased, and therefore, all lot purchasers were on notice that the restrictions could be modified, or cancelled, in whole or in part.

We agree with the holding in Eagle, but that decision is not controlling here. Unlike the situation before us now, no property owner in Eagle relied on a covenant before purchasing and using a lot for an authorized purpose, only to have that covenant and purpose violated later by an amendment to the original bill of assurance.

Here, the record reflects that, in February of 1986, Harper, the developer, owned 100% of the Oak Forest subdivision, and had authority at the time to permit appellees to use Lots 24 and 25 for street purposes. In addition, appellants had either actual or constructive notice of the street-purpose exception. That purpose was reflected in the subdivision’s original bill which was first filed on February 7, 1986, and then on August 22, 1986, which was before all but two of the appellants had purchased lots in the subdivision. Michael and Cynthia Goodbar were the only two appellants to have purchased their lot before August 22, 1986. The Goodbars purchased their lots on March 28, 1986, but even so, the record clearly reflects that they had obtained notice that the original bill filed on February 7, 1986, contained covenants and restrictions (which included the Lots 24 or 25 street-use exception) when they received a title insurance commitment.

In sum, when viewing the evidence in the light most favorable to the appellees, the record shows the appellees not only purchased Lots 24 and 25 relying on Oak Forest’s covenant permitting them to establish a street, they also expended $2,800 in cutting that street. Appellants had at least constructive notice as early as 1986 that appellees had the right to use their two lots for street purposes; nevertheless, appellants failed to act to change the covenant pertaining to these lots until 1991. Even the right to enforce a restrictive agreement may be lost by laches or acquiescence, especially when one incurs expenditures. Tiffany of Real Property 3d Ed. 5871 (1939); Briarwood Apartments v. Lieblong, 12 Ark. App. 94, 671 S.W.2d 207 (1984). Appellees’ position is even stronger here, since they incurred expenditures while relying upon a covenant which permitted them to cut a road. Appellants, having notice of appellees’ special covenant and knowing how they could' change that covenant under the bill of assurance, waited nearly five years before amending the subdivision’s bill to bring appellees’ two lots within the residential-dwelling restriction. In our view, appellants, by their delay, simply abandoned their rights to invoke the amending provisions of the Oak Forest bill of assurance. To hold otherwise would work an injustice on appellees.

Our holding also is consistent with the recognized rule that restrictive covenants are to be strictly construed against limitations upon the free use of property, and all doubts resolved in favor of the unfettered use of land. Casebeer v. Beacon Realty, 248 Ark. 22, 449 S.W.2d 701 (1970). In the circumstances, appellees here should be allowed the street use given them, especially when they purchased the two subdivision lots based upon that use and had incurred costs in establishing it.

Because we find the evidence clearly supports the result reached by the chancery judge, we affirm.

       Evidence indicated Harper may have shown some appellants an original bill or plat which reflected the residential restriction before the street-purpose exception for Lots 24 and 25 was added. As this case developed, that fact, if true, did not become an issue, and we agree with the trial court that appellants’ remedy, if any, would be against Harper and is not relevant to the issues here involving the appellees.

       Appellees, in part, argue a different theory than the one on which we decide this appeal. Nonetheless, the chancery judge’s decree, while not specifically mentioning laches or estoppel, does find that the appellants had notice of the street-use exception pertaining to Lots 24 and 25, and could not prevent appellees from exercising their rights which appellees bargained for and had partially undertaken to implement. Regardless of his reason for deciding in appellees’ behalf, this court will affirm the chancellor if the correct result was reached. Arkansas Health Services Comm'n, et al. v. Area Agency on Aging, 303 Ark. 38, 792 S.W.2d 321 (1990).