author: Tom Glaze, Justice.

text:
    The CITY OF DOVER, Arkansas v. The CITY OF RUSSELLVILLE, Arkansas, et al.

    00-1391
    57 S.W.3d 171
    Supreme Court of Arkansas
    Opinion delivered October 18, 2001

      McCormick Law Firm, P.A., by: David L, McCormick, for appellant.

      Dunham & Faught, P.A., by: James Dunham; William F. Smith, III; and Alex G. Street, for appellee.
   Tom Glaze, Justice.

The court of appeals certified this case to us because it involves the interpretation of Ark. Code Ann. §§ 14-40-601 and -604 (Repl. 1998), concerning a proposed annexation of an area which adjoins the City of Russellville. We accept jurisdiction of this appeal under Ark. Sup. Ct. R. 1-2(b)(6).

In April 1999, Pope County property owners, who owned land adjoining the City of Russellville, petitioned the Pope County Court pursuant to § 14-40-601, seeking to be annexed into Russellville. After holding a hearing on the landowners’ petition, the county court entered an order on June 3, 1999, granting their petition. In June 1999, the City of Dover and Wayne Baker, a landowner in the proposed area to be annexed, filed a timely complaint in the Pope County Circuit Court, as provided under § 14-40-604, seeking to prevent the annexation. Dover alleged there was insufficient proof that all parcels of land within the proposed annex area were proper for annexation. Dover asserted that the petitioners’ proof failed to show that a majority of the landowners of the proposed area had signed the petition or that a majority of the petitioners owned more than one-half of the proposed area, as required by § 14-40-601.

After several months of hearings, the initial circuit judge recused, and the case was then assigned to Circuit Judge Ken Coker, who promptly ordered on December 14, 1999, that a trial be set for April 6, 2000, and that all discovery be completed by March 6, 2000. Judge Coker directed that the parties’ discovery should include naming their expert witnesses, and, by the December 14 order, he informed the parties they would not be granted any continuances for the reason they did not have time to depose a witness. On January 25, 2000, Judge Coker further directed that petitioners answer Dover’s discovery requests on or before February 24, 2000; the judge also denied petitioners’ motion to dismiss and denied the petitioners’ prior request for a protective order.

Dover subsequently asked for a continuance so it could obtain an expert; that request was denied. Dover also sought to depose the petitioners’ agent and attorney, Alex Streett, and the judge took that request under advisement. In March 2000, petitioners amended their original petition, and Dover moved to dismiss this amendment. On April 4, 2000, Dover suggested Judge Coker disqualify, which the judge denied on April 6, 2000 —■ the original trial date. At the same time, the judge denied Dover’s motion for summary judgment, refused Dover’s request to depose attorney Alex Streett, and reset the trial for May 15, 2000.

The trial was held on May 15, and, by letter opinion dated June 19, 2000, Judge Coker entered his decision, finding: (1) the proposed area to be annexed was contiguous to Russellville, as required by § 14-40-604; (2) a majority of the landowners in the proposed annexed area had signed the annexation petition and they owned more than one-half of the area; (3) the petitioners had signed the petition personally or through an agent; (4) Dover failed to show petitioners had no standing; (5) Streett was properly designated as the petitioners’ agent; (6) the proposed area was not unreasonably large, and the area was properly described; (7) and the annexed property met the criteria set out in Town of Houston v. Carden, 332 Ark. 340, 965 S.W.2d 131 (1998).

Dover áppeals the circuit court’s decision and raises ten points for reversal. However, we first discuss this court’s standard of review in this case because it is a significant factor when considering some of Dover’s arguments. First, we point out that Dover’s complaint filed with the circuit court was not an appeal from the Pope County Court, but rather was an independent action attacking the annexation. Proposed Annexation to the Town of Beaver v. Ratliff, 282 Ark. 516, 669 S.W.2d 467 (1984). Such action is tried de novo in circuit court, see Turner v. Wiederkehr Village, 261 Ark. 72, 546 S.W.2d 717 (1977), and this court places a high degree of reliance upon the findings of the trial judge and does not reverse unless those findings are clearly erroneous. Carden, 332 Ark. at 349. Furthermore, this court views the evidence in the light most favorable to the appellee. Id.

In its first point, Dover argues Judge Coker erred in refusing to disqualify himself. More particularly, Dover asserts that, because the judge was a resident of Russellville and a customer of “City Corporation,” he had both an actual bias and an appearance of bias requiring his recusal. Dover explains that City Corporation is a Russellville company that handles water and sewage treatment for Russellville, and Dover says that if the proposed annexation is prevented, Dover would be able to build its own water treatment plant and Russellville would lose revenue received from Dover residents who are now required to use Russellville’s water treatment facility. In sum, Dover suggests that Judge Coker, as a Russellville resident, not only had an interest as a Russellville citizen, but also an economic interest in the outcome of the case. We find no merit in Dover’s argument.

We first note that Dover presented no evidence that the judge had any economic interest or other bias at stake in this litigation. Moreover, it is significant that, at the time the trial court denied the motion to recuse, Dover had been enjoined from constructing the treatment plant it wanted to build. In sum, this case simply involved the propriety of the proposed annexation and had nothing to do with the construction of any sewer treatment facility.

The rule is long established that there is a presumption of impartiality on the part of judges, see Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998), and a judge’s decision to recuse is within the trial court’s discretion and will not be reversed absent abuse. Trimble v. State, 336 Ark. 437, 986 S.W.2d 392 (1992). The party seeking recusal must demonstrate any alleged bias. Bradford v. State, 328 Ark. 701, 947 S.W.2d 1 (1997). Unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias. Lammers v. State, 330 Ark. 324, 955 S.W.2d 489 (1997). Dover simply fails to show bias to warrant Judge Coker’s recusal; therefore, we uphold the judge’s ruling on this point.

In its second point, Dover urges that the trial court erred in denying Dover a continuance. Dover states that, although the judge had set the trial date and discovery deadlines in December 1999, the judge had not yet denied the petitioners’ motion to dismiss Dover’s complaint and did not do so until January 25, 2000. It was not until after the January 25 ruling that Dover began a search for expert witnesses. Dover reasoned that it did not wish to incur the unnecessary expenditures of hiring an expert if its complaint would be dismissed; therefore, Dover delayed its search for expert witnesses. Dover submits that the only expert it contacted who could testify said that there was insufficient time to prepare for the April 6 trial. When Dover requested a continuance on February 4, 2000, the trial judge adhered to his earlier orders and, on February 24, denied Dover’s continuance request.

The rule is settled that the granting or denial of a motion for continuance is within the sound discretion of the trial court, and that court’s decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001). An appellant must show prejudice from the denial of a continuance, and when a motion is based on a lack of time to prepare, we will consider the totality of the circumstances; the burden of showing prejudice is on the appellant. Id. Finally, the court has also held that a lack of diligence alone is sufficient cause to deny a continuance. See Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994).

Here, the record reflects Dover was simply not diligent in engaging an expert needed to prove its case. Dover filed this case in June 1999, and had the burden to prove its allegations. Judge Coker took charge of this case in December 1999, and was quite specific in moving the case along by setting an April 6, 2000, trial date and establishing a discovery deadline, including the disclosure of expert witnesses so any depositions could be conducted. Dover knew it had the burden of going forward with proof, yet it delayed engaging an expert until it learned the petitioners’ dismissal motion would be denied. Such delaying tactics showed a lack of diligence on Dover’s part, and in these circumstances, we cannot say the trial judge abused his discretion in denying Dover’s request for continuance.

In its third point, Dover submits that, under § 14-40-601, the petitioners were required to apply in writing to the county court and name the persons authorized to act on their behalf. That statute reads, in pertinent part, as follows:

Whenever a majority of the real estate owners of any part of a county contiguous to and adjoining any city or incorporated town shall desire to be annexed to the city or town, they may apply, by petition in writing, to the county court of the county in which the city or town is situated and shall name the persons authorized to act on behalf of the petitioners.

Ark. Code Ann. § 14-40-610(a) (Repl. 1998) (emphasis added).

Dover argues the petitioners did not comply with the statute. Dover points to the testimony of a number of the persons who signed the annexation petition, stating these petitioners indicated they had not been told they were required to appoint someone to act on their behalf and did not know they were appointing an agent. However, most of these same witnesses also testified that they were aware someone was to be authorized to act in their behalf, and many of these witnesses specifically stated they understood that agent was Alex Streett. The petition itself specifically acknowledged that the landowners signing the petition named Streett as their attorney and representative. The trial judge heard all of the evidence and testimony and found the petitioners had named Streett their agent as required by § 14-40-601. We cannot say the judge’s finding was clearly erroneous.

Dover next argues the trial judge erroneously denied Dover the right to depose Alex Streett and to call him as a witness. As set out in point three above, Dover argues there were some landowners who claimed they had no idea Alex Streett was their agent or that they had appointed him as an agent. Dover urges it had the right to examine Streett concerning the inconsistencies in the testimonies on this point.

Our Model Rules of Professional Conduct explicitly provide that an attorney “shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.” See Model Rules of Professional Conduct 3.7; see also Int’l Resource Ventures, Inc. v. Diamond Mining Co. of America, 326 Ark. 765, 934 S.W.2d 218 (1996). Given this strong proscription against attorneys acting as witnesses, and given the wide latitude afforded to trial courts in ruling on discovery matters, see Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001) (a trial court’s decision on discovery issues will not be reversed absent an abuse of discretion), it cannot be said that the trial judge here abused his discretion. Dover took every opportunity in examining the petitioners/landowners to develop any inconsistencies it believed occurred regarding whether they knew Streett or someone would act in their behalf. In its argument three above, Dover referred to nineteen petitioners’ testimonies to make its point. Dover made no attempt to offer any testimony Streett would render that would differ from the considerable evidence it elicited from the landowners. It is not reversible error to exclude evidence which is merely cumulative. See Rule 403 of the Arkansas Rules of Evidence.

In Dover’s fifth point for reversal, it urged that the petitioners failed to prove that a majority of the landowners petitioned the county court for annexation as required by § 14-40-601. In making this argument, Dover contends the petitioners’ evidence before the Pope County Court fell short. As we fully discussed earlier in this opinion, Dover filed a complaint in circuit court to prevent the petitioners’ annexation, and it is this court’s responsibility on appeal to decide whether the circuit court’s findings of fact are clearly erroneous. See City of West Memphis v. City of Marion, 332 Ark. 421, 965 S.W.2d 776 (1998). Because our review is one from the circuit court, we are unable to address Dover’s argument here, since it erroneously requires our review of the county court proceeding.

In argument six, Dover claims the trial judge erred by allowing the petitioners to amend in circuit court the annexation petition it previously filed in the Pope County Court. In the circuit court proceeding, Dover raised questions concerning whether a majority of the landowners in the proposed area had actually signed the original petition for annexation. For example, there were spouses listed as owning property, but only one spouse signed the petition for both. After Dover questioned the validity of the petitioners signing the petition in a representative capacity, petitioners attached affidavits from the landowners indicating they had the authority to sign as agents for co-owners or owners. In addition, the persons who signed those affidavits also testified live at trial or by deposition that they had such authority.

Dover’s complaint here is based on its contention that the annexation laws in §§ 14-60-601 to -606 (Repl. 1998) do not provide petitioners the authority to amend their original petition to correct any deficiencies later found therein. Dover continues its argument, stating the trial judge essentially turned the proceeding into a trial de novo with the petitioners being given the opportunity to correct each and every deficiency discovered and pointed out by Dover.

In discussing this court’s standard of review above, we pointed out that the circuit court’s proceeding triggered by Dover’s complaint to prevent petitioners’ annexation is, indeed, a de novo one. This being so, we conclude the trial judge was correct in considering the additional evidence offered by petitioners,- and again, we are unable to hold he was clearly erroneous in allowing petitioners the opportunity to rebut the questions raised by Dover concerning the validity of the landowners’ signing for their respective co-owners.

Dover next argues the petitioners failed to prove in circuit court that a majority of the landowners petitioned the county court for annexation. Again, the way Dover frames its argument is wrong. The burden of proof in an action to prevent annexation is placed on the remonstrants — here, Dover — to prove the area should not be annexed. Carden, 332 Ark. 346-347.

In support of its argument, Dover relies on the testimony of land surveyor, Danny Hale, wherein Hale said that he relied on deeds given to him to determine who the landowners were in the proposed annexed area, and that he made no independent verification of that information. However, Dover ignores Hale’s further testimony that basing his determination of the percentage of property owners who signed the petition on the information received from deeds was “a normal procedure for [his] line of work.” Hale further averred that he had no question in his mind that the required number of landowners signing the petition and that the total -acreage owned by these landowners in the affected area met the requirements in § 14-40-601. Further, Dover did nothing to show, as it was required to do, that at least fifty percent of the landowners in the proposed annexed area did not execute the petition. Instead, Dover largely attempts to attack Hale’s credibility and the manner in which Hale obtained his information when opining that the landowners had met the statutory requirements in § 14-40-601. Of course, the trial judge heard this testimony and other evidence, and we believe there was sufficient evidence to sustain the trial judge’s ruling on this point.

Dover’s eighth point is similar to point six above. Here, it argues the trial judge erred in holding there were sixty-seven landowners, of whom forty (59%) signed the petition personally or through agents. Dover contends that nine of the forty landowners did not personally sign the petition, and with those nine excluded, less than the required majority of landowner signatures were obtained.

Once again, our review of the record reflects that only one of the persons Dover mentions in its argument did not testify regarding her spouse’s authority to sign the annexation petition, and this reduction does not make the tally less than the required fifty percent. Moreover, while Dover suggests the statutory law does not allow a landowner’s name to be signed by an agent such as an authorized spouse, it offers no citation of authority or convincing argument to support its view.

Also similar to prior arguments, Dover next submits trial error occurred when the trial judge found the petitioners owned a majority of the total acreage to be annexed. Dover lists thirteen of the landowners’ tracts and pointed out that not all of the listed owners signed the petition. It claims these thirteen tracts comprised 194.96 acres and, because the proposed area totaled only 287.92 acres, the required majority was not achieved.

The trial court found that the total acreage owned by the petitioners in the area to be annexed was 233.3 acres, or 81% of the land. Our review of the record reflects affidavits, testimony, live or by deposition, and other evidence showing all but one of the thirteen tract owners had authorized an agent to sign the petition. One owner of a .95 acre tract could not recall “why he didn’t have his wife sign,” but subtracting that acreage still leaves a total of 232.35 acres, or 80.61% of the area to be annexed.

Finally, Dover argues that the area to be annexed was not contiguous to the City of Russellville because the strip of land connecting the annexation area to the city was owned by Wayne Baker, who was originally a party to this action, and who did not sign the petition. Dover contends that § 14-40-601 requires that one or more of the petitioners must own property that is contiguous to the city limits of the city into which the petitioners wish to be annexed. Because Baker did not join the petition, Dover urges the petition was fatally defective. However, no such requirement exists in the statute winch simply states that “the majority of the real estate owners of any part of a county contiguous to and adjoining any city or incorporated town . . . may apply” for annexation. See § 14-40-601 (a)(emphasis added). In other words, the statute contains no language requiring the contiguous portion of the proposed annexed acreage be owned by one of the petitioners; thus, we decline to give the statute the strained interpretation sought by Dover. Accordingly, we uphold the trial judge’s ruling on this point.

For the foregoing reasons, we uphold the circuit court on all its rulings and decisions and affirm.

       Baker later opted to be dismissed as a party in this appeal, so the City of Dover is mentioned throughout this opinion as the party challenging the annexation.

       This court later dissolved the injunction, see City of Dover v. Barton, 342 Ark. 521, 29 S.W.3d 698 (2000), but the injunction was in place at the time of the April 6 hearing.

       Counsel offer different views concerning whether petitioners had previously suggested they may not have an expert — an assertion petitioners steadfastly deny. Those differences are of no relevance to our decision; however, we do note that the transcript reflects that, in January 2000, Dover acknowledged petitioners had given Dover notice that they would call three experts to testify.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    James E. ELAM v. FIRST UNUM LIFE INSURANCE COMPANY
    00-1430
    57 S.W.3d 165
    Supreme Court of Arkansas
    Opinion delivered October 18, 2001

      Robert J. Donovan, for appellant.

      Watts & Donovan, P.A., by: David M. Donovan, for appellee.
   Donald L. Corbin, Justice.

This case involves the interpretation of an insurance policy. Appellant James E. Elam purchased a long-term-disability policy from Appellee First Unum Life Insurance Company, through his employer, Smith-Barney. In 1994, Elam elected coverage under the policy for disability due to his having bipolar affective disorder. First Unum recognized Elam’s disability and paid benefits to him from August 9, 1994, through August 9, 1996. First Unum declined to pay further benefits because of a twenty-four-month policy limitation applicable to disability due to mental illness. Elam filed suit against First Unum, contending that the term “mental illness,” as used and defined in the policy, is ambiguous as it applies to his illness. The crux of Elam’s argument is that bipolar affective disorder is a physical illness, with a biological origin, that is treated with medication. The Garland County Circuit Court granted summary judgment to First Unum and found that the plain, ordinary meaning of the term encompassed bipolar affective disorder. We reverse the trial court’s judgment and remand for trial.

The insurance policy at issue provides: “Benefits for disability due to mental illness will not exceed 24 months of monthly benefit payments,” unless the insured meets one of two possible situations not applicable in this case. The policy then provides: “ ‘Mental illness’ means mental, nervous or emotional diseases or disorders of any type.” The parties do not dispute the fact that Elam suffers from bipolar affective disorder. Instead, they dispute whether bipolar affective disorder is a “mental illness” within the meaning of that term as set out in the disability policy.

The record demonstrates that Elam filed a motion for summary judgment, asserting that there were no material issues of fact to be resolved and that the court need only determine the legal issue of whether the policy language was ambiguous. Elam contended that the affidavits of Dr. Bradley C. Diner, M.D., and Dr. Charles L. Bowden, M.D., showed that bipolar affective disorder was a physical, rather than mental, illness. Dr. Diner stated in his affidavit that “[i]t is well accepted in the scientific community that bipolar disorder is a biological condition with hereditary predisposition, and an alteration in brain chemistry is being responsible for the mood disturbance and altered thought process.” Similarly, Dr. Bowden stated that, in his opinion, bipolar affective disorder has a biological origin. Dr. Bowden also opined that “there is no longer any reasonable doubt among informed members of the medical community that Bipolar Affective Disorder has a biological origin” and that this principle has gained “near universal acceptance in the medical community.”

First Unum also filed a motion for summary judgment, contending that the policy plainly and unambiguously excluded further benefits to Elam for disability due to mental illness and that bipolar affective disorder is a mental illness. In support of its motion, First Unum submitted portions of depositions given by Dr. Diner and Dr. Joe Backus, M.D., Elam’s treating physician. In particular, First Unum relied on the following information: (1) the precise cause of bipolar affective disorder is unknown, as it cannot be detected by such diagnostic tools as brain scans or blood tests; (2) diagnosis is based primarily on the patient’s behavior, clinical presentation, and history; (3) psychiatrists are unable to predict the onset of symptoms based on any physical or biological indicator; (4) individuals suffering from the disorder are treated exclusively by psychiatrists, using a combination of drugs and psychotherapy; and (5) the medical and psychiatric communities officially classify bipolar affective disorder as a mental illness, regardless of their opinion that the disorder has a biological origin.

In response to First Unum’s motion, Elam submitted the depositions of Drs. Diner and Backus in their entirety, which reflected the following information: (1) bipolar affective disorder is caused by an imbalance of chemicals or neurotransmitters in the brain; (2) the disorder is distinguishable from a personality disorder, which is triggered by social stress, such as the death of a loved one; and (3) the disorder is treated with medication, to stabilize the neurotransmitter blood levels in the brain, while psychotherapy is used primarily to help educate the patient about the illness and to help him adapt to the life changes that the illness brings. Elam also offered his own affidavit, to which were attached approximately twenty-five articles from various sources, including newspapers, magazines, mental-health pamphlets, and a law journal. Collectively, these sources report that certain disorders of the brain, including bipolar affective disorder, are no longer viewed as mental illnesses due to the apparent consensus in the medical community that such disorders have physical origins. Finally, Elam relied on the affidavit of Dr. Diner, which reflected that there is a general trend in psychiatry to move away from the classification of illnesses by symptoms in favor of classifying them according to their causes or origins. As an example of this trend, Dr. Diner’s affidavit contained the following disclaimer from the introduction to the Fourth Edition of the Diagnostic and Statistical Manual (DSM-IV):

Although this volume is titled The Diagnostic and Statistical] Manual of Mental Disorders, the term mental disorder unfortunately implies a distinction between “mental” disorders and “physical” disorders that is a reductionistic anachronism of mind/body dualism. A compelling literature documents that there is much “physical” in “mental” disorders and much “mental” in “physical” disorders. The problem raised by the term “mental” disorders has been much clearer than its solution, and, unfortunately, the term persists in the title of the DSM-IV because we have not found an appropriate substitute.

After considering the evidence offered by both parties, the trial court ruled that the definition of “mental illness” provided in the disability policy is unambiguous when the term is afforded its plain and ordinary meaning. The trial court , found that Arkansas law requires that contract terms, such as those contained in insurance policies, be interpreted according to a layperson’s understanding of those terms. The trial court concluded:

The common, ordinary and lay understanding of the term “mental illness” encompasses bi-polar affective disorder. This interpretation is further supported by the testimony of Plaintiff s treating and consulting psychiatrists, Dr. Bradley Diner and Dr. Joe Backus, that the psychiatric community classifies bi-polar affective disorder as a mental illness regardless of the precise cause or etiology of that disease. As used in Defendant’s insurance policy, that term is not ambiguous.

Based on these conclusions, the trial court granted summary judgment to First Unum.

Elam appealed to the Arkansas Court of Appeals. After reviewing the evidence submitted by the parties, as weH as varying case law on this issue from other jurisdictions, the court of appeals concluded that the policy’s language was ambiguous. It thus reversed the trial court’s judgment and remanded for trial on the issue of whether Elam’s disorder is a mental illness. See Elam v. First Unum Life Ins. Co., 72 Ark. App. 54, 32 S.W.3d 486 (2000). Both parties filed for review of that decision. Elam sought review on the ground that the court of appeals erred when it refused to enter judgment in his favor once it concluded that the policy was ambiguous. First Unum, on the other hand, sought review of the initial determination that the policy was ambiguous. We granted review pursuant to Ark. Sup. Ct. R. 1-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed in this court. See Regions Bank & Trust v. Stone County Skilled Nursing Facil., Inc., 345 Ark. 555, 49 S.W.3d 107 (2001); Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Thus, we review the trial court’s judgment, not that of the court of appeals.

Elam argues that the trial court erred in granting summary judgment to First Unum and concluding, as a matter of law, that the “mental illness” limitation in the insurance policy is unambiguous. We agree that summary judgment was improper, based on the circumstances of this case.

Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entided to judgment as a matter of law. City of Lowell v. City of Rogers, 345 Ark. 33, 43 S.W.3d 742 (2001); Elam v. Hartford Fire Ins. Co., 344 Ark. 555, 42 S.W.3d 443 (2001). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001); Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). Thus, summary judgment is not proper, where, although the actual facts are not in dispute, they may result in differing conclusions as to whether the moving party is entitled to judgment as a matter of law. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998) (per curiam) (citing Ark. R. Civ. E 56(c); Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991)). See also City of Lowell, 345 Ark. 33, 43 S.W.3d 742; Ultracuts Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 33 S.W.3d 128 (2000). In other words, where different conclusions may be reached regarding what the undisputed facts demonstrate, summary judgment is inappropriate.

The parties do not dispute the underlying facts of this case, i.e., that Elam suffers from bipolar affective disorder and has suffered from the illness for years. What is disputed is the meaning of the term “mental illness,” as it is used and defined in the insurance policy issued to Elam by First Unum. The parties essentially agreed that resolution of this issue required the trial court to look beyond the face of the policy, as both parties submitted disputed extrinsic evidence in an attempt to define the term. The trial court’s order demonstrates that it relied on that extrinsic evidence in determining that the term was commonly understood and thus unambiguous. This was error.

The law regarding construction of an insurance contract is well settled. If the language of the policy is unambiguous, we will give effect to the plain language of the policy without resorting to the rules of construction. Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000); Western World Ins. Co. v. Branch, 332 Ark. 427, 965 S.W.2d 760 (1998). On the other hand, if the language is ambiguous, we will construe the policy liberally in favor of the insured and strictly against the insurer. Id. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. Norris, 341 Ark. 360, 16 S.W.3d 242; Smith v. Prudential Prop. & Cas. Ins. Co., 340 Ark. 335, 10 S.W.3d 846 (2000). Ordinarily, the question of whether the language of an insurance policy is ambiguous is one of law to be resolved by the court. Norris, 341 Ark. 360, 16 S.W.3d 242; Western World, 332 Ark. 427, 965 S.W.2d 760. Where, however, parol evidence has been admitted to explain the meaning of the language, the determination becomes one of fact for the jury to determine. See Smith, 340 Ark. 335, 10 S.W.3d 846; Southhall v. Farm Bureau Mut. Ins. Co., 276 Ark. 58, 632 S.W.2d 420 (1982).

Our case law demonstrates that where there is a dispute as to the meaning of a contract term or provision, be it an insurance or other contract, the trial court must initially perform the role of gatekeeper, determining first whether the dispute may be resolved by looking solely to the contract or whether the parties rely on disputed extrinsic evidence to support their proposed interpretation. As Justice George Rose .Smith explained, “[t]he construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence.” Id. at 60, 632 S.W.2d at 421 (emphasis added). Thus, where the issue of ambiguity may be resolved by reviewing the language of the contract itself, it is the trial court’s duty to make such a determination as a matter of law. On the other hand, where the parties go beyond the contract and submit disputed extrinsic evidence to support their proffered definitions of the term, this is a question of fact for the jury. In the latter situation, summary judgment is not proper.

We cannot say that the term “mental illness” is ambiguous looking only to the face of the policy. Rather, the only way that term may become ambiguous is by looking to the conflicting evidence submitted by the parties, which included the affidavits and depositions of three physicians, an excerpt from the DSM-IV, and articles from various sources. Both parties went beyond the four corners of the policy and relied on this extrinsic evidence to support their respective interpretations of the term “mental illness.” Elam claimed that the evidence showed that the term did not include those illnesses having physical causes, while First Unum asserted that, regardless of the cause, the evidence showed that bipolar affective disorder is classified, diagnosed, and treated as a mental illness by psychiatrists. Accordingly, the trial court erred in resolving this issue as a matter of law by granting summary judgment to First Unum. We therefore reverse the trial court’s judgment and remand for the jury to resolve whether, based on the disputed extrinsic evidence offered by the parties, the term “mental illness,” as it is used and defined in the policy, is ambiguous as it applies to Elam’s diagnosis of bipolar affective disorder. In resolving this issue, the jury shall be instructed on the relevant law regarding construction of an insurance contract.

Circuit Court reversed and remanded; Court of Appeals reversed.

GLAZE, J., not participating.


author: Per Curiam.

text:
    Orange Edward BRADY v. STATE of Arkansas
    CR 00-929
    57 S.W.3d 691
    Supreme Court of Arkansas
    Opinion delivered October 18, 2001

      Thomas B. Devine, III, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Per Curiam.

Orange Edward Brady was convicted of aggravated robbery and theft of property, and he subsequently pled guilty to being a felon in possession of a firearm. He received concurrent sentences of twenty years’, ten years’, and ten years’ imprisonment. The court of appeals affirmed in an unpublished opinion. Brady v. State, CACR 99-155 (Ark. App. Oct. 6, 1999).

Appellant, acting pro se, filed a timely petition for postconviction relief pursuant to Ark. R. Cr. P. 37 raising claims related to his jury trial convictions only. On April 13, 2000, the circuit court denied relief on each of appellant’s claims but one. The circuit court set an evidentiary hearing to consider appellant’s remaining claim that his trial counsel was ineffective in failing to present alibi witnesses. Thomas B. Devine, III, was subsequently appointed to represent appellant at the hearing on the remaining claim.

The circuit court conducted the hearing on June 2, 2000, and then denied relief in a June 21, 2000, order. Mr. Devine’s subsequent motion to the circuit court to be relieved as appellant’s counsel was denied at a July 5, 2000, hearing. That same day, Mr. Devine filed a notice of appeal from the June 2 hearing and the circuit court’s June 21 order. He then timely lodged the record on appeal in this court, and filed a motion to withdraw and an Anders brief stating that there was no merit to any argument arising from the circuit court’s denial of postconviction relief. In doing so, Mr. Devine only addressed the single claim of ineffective assistance concerning the alibi witnesses, and did not abstract appellant’s Rule 37 petition in its entirety. Appellant was provided a copy of counsel’s brief, and filed points for reversal for the court’s consideration pursuant to Ark. Sup. Ct. R. 4-3 (j) (2). Appellant’s points for reversal raise, in part, some of the claims raised in his Rule 37 petition that were denied by the circuit court on April 13. The State filed a brief in response to appellant’s points for reversal. Neither appellant nor the State submitted a supplemental abstract of the Rule 37 petition. Because Mr. Devine, once he filed the notice of appeal, was required by Ark. Sup. Ct. R. 4 — 3(j)(1) to abstract and discuss the denial of each of the claims raised in appellant’s petition, we order rebriefing in this case for compliance with the rule.

The circuit court’s April 13 order denying all but one of appellant’s claims was an intermediate order, not a final order from which appeal could be taken. This court has explained:

The requirement that an order be final to be appealable is a jurisdictional requirement. Wilburn v. Keenan Cos., Inc., 297 Ark. 74, 759 S.W.2d 554 (1988). The purpose of the finality requirement is to avoid piecemeal litigation. Lamb v. JFM, Inc., 311 Ark. 89, 842 S.W.2d 10 (1992). An order is final and appealable if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Department of Human Services v. Lopez, 302 Ark. 154, 787 S.W.2d 686 (1990). The order must put the judge’s directive into execution, ending the litigation, or a separable branch of it. Festinger v. Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978).

Payne v. State, 333 Ark. 154, 158, 968 S.W.2d 59, 60-61 (1998)(quoting K.W. v. State, 327 Ark. 205, 207, 937 S.W.2d 658, 659-60 (1997)). An order is final and appealable if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Although the circuit court denied all but one of appellant’s claims in its April 13 order, it also retained jurisdiction, set an evidentiary hearing on the remaining claim, and appointed Mr. Devine to represent appellant. Thus, the circuit court’s June 21 order denying the remaining alibi witness claim constituted the final appealable order in this case.

“An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.” Ark. R. App. P. — Civ. 2(b). Rule 37 proceedings are civil in nature, Public Defender Comm. v. Greene County, 343 Ark. 49, 55, 32 S.W.3d 470, 474 (2000), and this court has referred to and applied the Rules of Appellate Procedure — Civil when necessary in criminal appeals. Byndom v. State, 344 Ark. 391, 404, 39 S.W.3d 781, 798 (2001). Applying Ark. R. App. P — Civ. 2(b) to this case, Mr. Devine’s notice of appeal from the evidentiary hearing and the circuit court’s final order also brought up for review the circuit court’s intermediate order.

Anders v. California, 386 U.S. 738 (1967) and Arkansas Supreme Court Rule 4-3(j)(1) sets requirements for the withdrawal of counsel for a defendant in a criminal case after a notice of appeal has been filed on the basis that an appeal is without merit. Although such a “no-merit” brief is typically filed in a direct appeal from a judgment, we have also allowed the filing of no-merit briefs in postconviction appeals. Matthews v. State, 332 Ark. 661, 664, 966 S.W.2d 888, 889 (1998). Counsel’s “no-merit brief’ must contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions, and requests with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 4-30)(1). The abstract must also contain each adverse ruling. Id.

Mr. Devine’s no-merit brief did not meet the requirements of Rule 4-30)(1) because he failed to abstract and list each ruling adverse to appellant, and to explain why those rulings did not provide meritorious ground for reversal. Instead, he submitted a partial abstract and only addressed the alibi witness issue that was the basis for the June 2 hearing. This court cannot affirm an appellant’s conviction without any discussion as to why a particular ruling by the trial court should not be meritorious grounds for reversal. Dewberry v. State, 341 Ark. 170, 172, 15 S.W.3d 671, 672 (2000). “Without an adequate brief which contains an abstract of the record, we cannot make a reasoned decision on whether counsel is entitled to be relieved on the ground that the appeal is without merit.” Mitchell v. State, 327 Ark. 285, 286-87, 938 S.W.2d 814, 815 (1997). Accordingly, counsel is directed to file a brief which complies with Ark. Sup. Ct. R. 4-30)(1). When the brief is filed, the motion and brief will be forwarded by the Clerk to the appellant so that he may raise within thirty days any points he chooses in accordance with Ark. Sup. Ct. R. 4-30) (2).

Rebriefing ordered.


text:
    Kenneth HAWKINS v. STATE of Arkansas
    CR 01-1065
    57 S.W.3d 170
    Supreme Court of Arkansas
    Opinion delivered October 18, 2001

      Tjuana C. Byrd, for appellant.
    No response.
   Per Curiam.

Petitioner, Kenneth Hawkins, by his attorney Tjuana C. Byrd, Deputy Public Defender for the Sixth Judicial District, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on her part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


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

text:
    Cloyd Edward WILLIAMS a/k/a Eddie Williams v. STATE of Arkansas
    CR 01-623
    57 S.W.3d 706
    Supreme Court of Arkansas
    Opinion delivered October 25, 2001

      Robert A. Newcomb, for appellant.

      Mark Pryor, Att’y Gen., by: Katherine Adams, Ass’t Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

The appellant was the duly elected sheriff of Montgomery County. He was charged by a special prosecuting attorney with tampering with a pubbc record, in violation of Ark. Code Ann. § 5-54-121 (Supp. 1999), by knowingly altering or making a false entry in a public record, specifically, a Montgomery County claim for allowance; he was also charged with theft by deception. The trial judge granted a directed verdict of acquittal on the charge of theft by deception at the close of the State’s case. After a trial by jury, the appellant was convicted of tampering with a public record, a Class D felony. Appellant was sentenced to pay a fine of $23.86, as well as $100.00 in court costs. Appellant appeals the conviction. We affirm.

The facts underlying the case are as follows. Appellant, as sheriff, paid for meals at the Sir Loin’s Inn in North Little Rock for two deputies, their wives, his wife, and himself; he then submitted a claim to Montgomery County for reimbursement for the meal expense. The claim was originally supported with a receipt from the Sir Loin’s Inn showing that six people ate the meal for a total amount of approximately $198.00. The claim was submitted to the county judge, who approved it on or about February 1, 2000. It was paid that same day. Subsequently, the county judge, after it was suggested to him by a State auditor that there should be additional documentation attached to the claim, asked for additional explanation of who attended the meal; a separate document, handwritten by appellant was then submitted on or about February 3, 2000, stating that two businessmen had attended the meeting, in addition to the six previously mentioned individuals. The two additional businessmen were, in fact, not at the dinner. The original felony information in the case charged that tampering with public records occurred on or about February 1, 2000; but, at the trial, the court allowed the prosecuting attorney to amend the charge to state that tampering with public records occurred on or about February 3, 2000, to coincide with when the handwritten note stating that the businessmen were at the dinner was given to the county judge.

Appellant moved at the close of the State’s case and again at the close of his case for a directed verdict for insufficient evidence of tampering with a public record; he contends that there was no evidence showing that he knew that the subsequent letter would be filed with the county clerk as part of the claim. Appellant asserts on appeal that there was insufficient evidence to sustain a conviction.

Appellant argues that the circuit court erred in refusing to grant his motion for a directed verdict. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001); Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). When this Court conducts such a review based on an insufficiency-of-the-evidence argument, it does so using the following standard, as set out in Williams v. State, 331 Ark. 263, 962 S.W.2d 329 (1998):

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

Williams, 331 Ark. at 265, 962 S.W.2d at 330 (quoting McGehee v. State, 328 Ark. 404, 410, 943 S.W.2d 585, 588 (1997)).

Arkansas Code Annotated § 5-54-121 provides that:

(a) A person commits the offense of tampering with a public record if, with the purpose of impairing the verity, legibility, or availability of a public record, he knowingly:
(1) Makes a false entry in or falsely alters any public record; or
(2) Erases, obliterates, removes, destroys, or conceals a public record.
(b) (1)(A) Tampering with a public record is a Class C felony if the public record is a court record.
(B) Tampering with a public record is a Class B felony if the public record is a court record and the person broke into any building o'r structure with the intent of tampering with a court record located therein.
(2) Otherwise, tampering with a public record is a Class D felony.

Arkansas Code Annotated § 5-54-101(11) (Repl. 1997) defines a public record as including “all official books, papers, exhibits, or records of any type required by law to be created by or received and retained in any governmental office or agency, affording notice or information to the public, or constituting a memorial of an act or transaction of a public office or public servant.”

Appellant contends that although he did provide false information on the additional, handwritten documentation concerning the meal at Sir Loin’s Inn, he did not know that this document was going to be filed with the Montgomery County Clerk. He claims that this handwritten explanation of the meal expenses does not constitute a “public record” as defined by Ark. Code Ann. § 5-54-101(11) because it was not one required by law to be kept. This argument is without merit.

Field Auditor Amanda Meyers of the Division of Legislative Audit testified that claims for allowance are required by law to be filed in the county clerk’s office, that the handwritten document prepared by appellant was attached to the claim, and that she relied on it as a basis for the claim for allowance. There was substantial testimony concerning the request by legislative auditors for documentation and discussion that without the documentation the claim would not be allowed, and an auditing exception would be made for it. Further, while appellant claims that he did not know it was to be filed with the circuit clerk and that he did not file it with the clerk, he did know that the county judge’s secretary, on behalf of the county judge, had requested that the additional documentation be provided.

Phillip Murray, another field auditor with the Division of Legislative Audit, testified that, by statute, claims for allowance must be supported with documentation that itemizes the expenditure of county funds as they are related to county business. Once the claims for allowance are approved to be paid by the county judge, the claim, along with any supporting documentation, is filed with the county clerk and retained for a period of years.

The appellant, in two separate conferences with State Field Auditor Meyers, never mentioned that the list of people who attended the meeting was inaccurate. Appellant testified that he understood that the purpose of the additional documentation was to explain his claim for allowance, and he admitted that the fist of people who attended the dinner was incorrect; yet, he claims it was a mistake, rather than a knowing falsity. This claim that the false information was a “mistake” rather than a purposeful act was clearly an issue of credibility of the witness for the jury to decide. See Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999).

It seems obvious that as all claims for allowance and supporting documents are required by statute to be created and retained in the county clerk’s office, appellant’s handwritten documentation fits squarely into the definition of a public record, as a matter of law, and his argument in this regard is, therefore, without merit.

The appellant next argues that there is insufficient evidence to support the verdict because the State faded to introduce into evidence the statutes showing that the handwritten documentation was required by law to be received or retained by a government office. This argument, likewise, is without merit. The trial court is presumed to be aware of the substantive law of this State. See State v. Jones, 338 Ark. 781, 3 S.W.3d 675 (1999). Therefore, it is not necessary to introduce evidence of statutes in this State. See Washington v. State, 319 Ark. 583, 892 S.W.2d 505 (1995).

Appellant goes on to argue that the jury had to speculate as to whether or not the handwritten document was a public record because the State did not present any evidence that it was required by law to be filed; this is, likewise, without merit. Montgomery County Clerk Debbie Baxter testified that claims for allowance and their supporting documents are filed in the Montgomery County Clerk’s office; and two State Auditors testified that the claims and supporting documents were required to be filed with the county clerk’s office and kept for a period of years for the purpose of yearly auditing. No evidence was introduced to the contrary. Therefore, it appears clear that there was substantial evidence that the handwritten document was a public record within the statutory definition read to the jury during jury instruction.

The appellant asserts that the trial court lacked subject-matter jurisdiction over the criminal charge of tampering with a public record because the county court is vested with original jurisdiction to allow or disallow claims; the appellant is mixing apples and oranges. Certainly, the trial court had jurisdiction over the subject matter of the criminal charge. The propriety of the county’s allowance or disallowance of reimbursement for the claim was not the subject matter of the criminal charge, and the appellant’s reliance on this argument is misplaced.

Most unpersuasive, however, is appellant’s argument that he cannot be held accountable for tampering with a public record because he was not aware that his claim for allowance and the supporting documents were public records. It is well setded that ignorance of the law or lack of knowledge of a legal requirement is never an excuse to a criminal charge. See Crail v. State, 309 Ark. 120, 827 S.W.2d 157 (1992).

It is clear, when viewing the evidence in the light most favorable to the State, that substantial evidence did exist to support the verdict. As such, we affirm appellant’s conviction and sentence in all respects.

Affirmed.


text:
    Delaney ALEXANDER; Joann Smith, Chair, Phillips County Board of Election Commissioners; Maxine Miller and Joe Howe, as Members of the Phillips County Board of Election Commissioners; Lyle Wheeler; Kim Heagwood; and Travis Williams v. Alma McKinney DAVIS, Ozell Davis, Geraldine Davis, and Rosetta Ross Davis
    01-118
    58 S.W.3d 330
    Supreme Court of Arkansas
    Opinion delivered October 25, 2001

      David Solomon; Robert Morehead; Roscopf & Roscopf, P.A., by: Charles B. Roscopf, and Edward H. Schieffler, for appellants Delaney Alexander, Lyle Wheeler, Kim Heagwood, and Travis Williams.
    L. Ashley Higgins, P.A., by: L. Ashley Higgins, for appellants Joann Smith, Maxine Miller, and Joe Howe.
    No response.
   Tom Glaze, Justice.

This is another appeal arising out of a Phillips County election, this time involving the election of a justice of the peace and three Democratic Committee positions elected from Justice of the Peace District 9. This particular district was created as a result of a federal district court proceeding in Varner v. Clatworthy, U.S.C.C. Case No. H-C-92-19 (E.D. Ark. 1994). In Varner, the federal district court entered a consent decree as a result of a class action lawsuit that had been brought by African-American electors in Phillips County, challenging the electoral districts for quorum court members. That decree ordered that the electoral voting districts for the quorum court shall be in accordance with an attached map with descriptions made a part of the decree. Significant to the instant case, the map created and established in the Varner case has been used by Phillips County election officials in all of the county elections since 1994; this includes the May 23, 2000, Democratic primary election in issue here.

Appellant Delaney Alexander and appellee Geraldine Davis timely filed as Democratic candidates for justice of the peace for District 9, and appellants Lyle Wheeler,Travis Williams, and Kim Heagwood and appellees Alma Davis, Ozell Davis, and Rosetta Davis filed respectively as Democratic candidates for positions 1, 2, and 3 as committee members from District 9. After the May 23 election, the Phillips County Election Commission met on May 26, 2000, to certify the election results, which showed the following tallies:

Justice of the Peace for District 9

Delaney Alexander 498

Geraldine Davis 412

Position 1

Lyle Wheeler 475

Alma Davis 427

Position 2

Travis Williams 461

Ozell Davis 430

Position 3

Kim Heagwood 499

Rosetta Davis 419

The commission’s certification was filed on May 31, 2000. On June 15, 2000, appellees filed a complaint in Phillips County Circuit Court contesting the election pursuant to Ark. Code Ann. §§ 7-5-801, et seq. (Repl. 2000), and asserting that unlawful votes had been cast for the appellants and that the appellees should be certified as winners. Alternatively, appellees alleged the four appellants, plus the Phillips County Election Commission, had deliberately and unlawfully violated appellees’ rights and, consequendy, the court should void the justice of the peace and committee member races.

On October 23, 2000, the parties presented all their witnesses, evidence, and arguments, and the trial judge took the matter under submission, but did not enter his decision until December 29, 2000. In his December 29 order, the judge ruled the appellees had failed to meet their burden in contesting the votes cast and certified in the races for justice of the peace and the three committee member races. The judge explained the appellees “had failed to carry their specific burden that there was a specific and identifiable number of ifiegal votes cast for the appellants that would allow him to declare with some reasonable certainty the winners of the [May 23, 2000] election.” However, the judge further held appellees prevailed on their alternative prayer for relief that the District 9 races should be declared void because the appellants were not qualified for the office or positions they sought, since they resided outside District 9. The judge further found that voters residing outside District 9 were allowed to vote in the May 23 election. The judge based his ruling on the case of Patton v. Coates, 41 Ark. 111 (1883). The judge’s decision was erroneous.

We first point out both parties’ tardiness in joining the issues concerning whether the appellants were qualified to have their names on the May 23 ballot. In Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 548 (1998), we cited Ark. Code Ann. § 7-5-207(b), which provides that “[n]o person’s name shall be printed on the ballot as a candidate for any public office in the state at any election unless the person is qualified and eligible at the time of the filing as a candidate for office, to hold the public office for which he is a candidate. . . .” The Jenkins court further stated that the proper means of enforcing § 7-5-207(b) is to petition for mandamus and declaratory judgment. See also State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989). In Jenkins, the court also emphasized that Ark. R. Civ. P. 78(d) was the procedural vehicle by which an election proceeding could be expedited in order to enforce § 7-5-207(b), since that rule provides that a hearing be held no sooner than two days and no longer than seven days after the fifing of a petition for writ of mandamus in an election matter. Jenkins, 335 Ark. at 339. However, the court further stated that our cases have not suggested that the violation of the two-to-seven day provision would deprive the court of jurisdiction. Id. The Jenkins court then proceeded to hold that the trial court’s failure to hold a timely hearing in that election case did not deprive the trial court of jurisdiction, thus making it clear that it was up to the candidate (Jenkins) to have objected to the trial court’s failure to hold the hearing within the time requirements set out in rule 78(d). Id. at 340.

In the instant case, the appellees failed to file their complaint for declaratory judgment and writ of mandamus in a timely fashion, but instead waited until after the May 23 election to request the trial court to rule the appellants were not qualified to hold the office or positions they sought. Appellees interposed no objections to the delay until October 2000.

Even though appellants delayed in bringing their challenge to appellees’ allegations regarding appellants’ qualifications, appellees’ arguments still must fail. As mentioned already, while the trial judge ruled the appellees had failed to prevail on their election-contest allegations, the judge found merit in their alternate cause of action and voided the appellants’ election. The judge based his ruling on the early case of Patton v. Coates, 41 Ark. 111 (1883). The judge’s reliance on Patton is clearly misplaced.

As noted by the appellants, the Patton case demonstrates the very worst in Arkansas reconstruction politics when fraud and intimidation of voters were rampant. The trial court’s findings in Patton illustrated this fact by relating the following:

[With regard to Eagle Township,] quite a number of illegal votes were cast for plaintiff by non-residents. That in one or two instances legal voters who had desired to vote for Patton were rejected. That an armed force was around the polls all day. That they were armed with needle guns, rifles and shot guns, and that those so armed were colored men (with one exception) and supporters of the plaintiff. That these guns were stacked immediately around the polls. That fifiy-three men had guns in the afternoon of the day of the election, and that quite a number of them, with their guns, accompanied the officers who brought up the returns to the county clerk.
With regard to Eastman [Township, the judge found]: That early in the morning even before the polls were opened, a large crowd of colored men, ranging from two hundred to four hundred, surrounded the polls, a large majority of whom were supporters of plaintiff, and by their conduct made it exceedingly difficult for a colored man, desirous of supporting defendant to deposit his ballot. That supporters of plaintiff would forcibly take their ballots from them, threaten to burn their houses, throw them into the river, turn them out of church, &c., in case they voted for the ticket upon which defendant was a candidate. That, in certain circumstances, voters were so intimidated as either to leave the polls without voting, or had to be conducted to the polls under the protection of white citizens. That one Moore, a colored man, declined to go to the polls because he would not be allowed to vote as he saw fit. That one Andrew Jackson, a resident of Mineral township, presented himself as a voter of Eastman polls, and was challenged. That said Jackson told one of the judges (George Scott) that he lived in Mineral township. That, notwithstanding this, said Scott allowed him to vote, without swearing him, and without calling the attention of the other judges thereto. That some twelve or fifteen men in one crowd, desiring to vote “the people’s ticket,” were furnished tickets, and in attempting to vote were set upon by a much larger crowd of supporters of plaintiff, their tickets taken from them, and only two voted as they wished.

Patton, 41 Ark. at 135-36.

This supreme court in Patton, recognizing the narrow limits that must be followed in exercising its powers to void an election, said:

Upon the other hand, it devolves upon the courts not to press this principle too far, nor apply it lightly to slight indications of fraud, violence or intimidation. Its application, indeed, is a matter of the greatest and most anxious responsibility, inasmuch as it involves, necessarily, the disfranchisement, in the particular election, of all the honest voters of the township. The wrong should appear to have been clear and flagrant, and in its nature diffusive in its influences, calculated to effect more than can be traced, and sufficiently potent to render the result really uncertain. If it be such, it defeats a free election, and every honest voter and intimidated or deceived voter is aggrieved thereby. It is his interest to sacrifice his own vote to right the evil. If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected. (Emphasis added.)

Id. at 126 (emphasis added).

In 1956, this court in Baker v. Hedrick, 225 Ark. 778, 285 S.W.2d 910, stated that it is a serious matter to throw out an entire election, and that result should not be reached unless the contestant has offered proof sufficient to satisfy the test in Patton v. Coates. In the more recent case of Henard v. St. Francis Election Commission, 301 Ark. 459, 783 S.W.2d 598 (1996), this court spoke in the following restrictive terms when considering voiding an election:

This court has said that while we do not condone disregard of the state’s election laws, we are nevertheless reluctant to void an entire election on the basis of a slight deviation from the statutory requirements. The failure to comply with the letter of the law of election officers, especially in matters over which the voter has no control, and in which no fraud is perpetrated, does not as a general rule render an election void, unless the statute expressly makes it so. Allen v. Ranklin, 269 Ark. 517, 521, 602 S.W.2d 673, 675 (1980) (quoting Goggin v. Ratchford, 217 Ark. 180, 229 S.W.2d 130 (1950). None of the improprieties alleged by appellants appear to have affected the outcome of this election.

Interestingly enough, the trial judge in the instant case recognized the limited power of a court to void an election by his own language contained in his judgment:

The Plaintiffs have alleged, in fairly particular terms, an alternate cause of action recognized by our supreme court as early as 1883. In Patton v. Coates, 41 Ark. 111 (1883), our supreme court was clear in its holding that a showing of receipt of the majority of the lawful votes was but one avenue in matters such as these. The Court is empowered to declare an election void where: the wrong should appear to have been clear and flagrant; and in its nature, diffusive in its influences; calculated to effect more than can be traced; and sufficiently potent to render their results uncertain. If it be such, it defeats a free election, and every honest voter and intimidated or deceived voter is aggrieved thereby ... If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected. King v. Davis, 324 Ark. 253, 256, 920 S.W.2d 488, 490 (1996) (citing Patton, supra) [emphasis added].

After espousing the foregoing language, the trial judge nevertheless deduced that the record before him showed that the appellants were not qualified for the office (or position) sought by reason of their residencies being located outside of Justice of the Peace District 9. The trial judge also found that voters residing outside District 9 had been improperly allowed to vote in the May 21, 2000, election. There, significantly, the trial judge found no charges of fraud or intimidation were shown, nor were such charges argued by appellees in this appeal. In fact, the only evidence offered by appellees regarding illegal votes being cast at the May 23 primary election, involved whether some voters, who allegedly resided outside Justice of the Peace District 9, had voted illegally in the District 9 races. As discussed earlier in this opinion, the Phillips County Board of Election Commissioners complied with the 1994 federal district court’s map and descriptions in the Varner decision when conducting the May 23, 2000, election. Appellees unquestionably resided within the District 9 boundary lines as those lines were described and established in Varner, in addition, the electors had complied with the Varner decree by residing and casting votes in that precinct and district.

In rendering his decision, the trial judge appeared to rely on testimony given by former Phillips County Election Commissioner, Marvin Jarrett, who related that the Varner map had been originally established by census tracts and block numbers. Jarrett testified that more recent census tracts and county maps reflect changes that had occurred which had modified the original District 9 boundary, causing appellants and many voters to now reside presently outside District 9 and placing them presently in different justice of the peace districts and voting precincts. However, nothing in the record reflects that appellees (or anyone else, for that matter) brought an action in federal district court to modify or revise the district boundaries established by the Varner court, and the trial judge does not make it clear how the Phillips County election officials could lawfully ignore the district and precinct boundaries established in Varner.

It is our view that the Phillips County Board of Election Commissioners and county clerk acted lawfully when complying with the 1994 Varner consent decree and its map and descriptions. Certainly these officials’ good faith cannot be questioned when those Phillips County election officials merely followed the Varner decree as their predecessors had done in all elections held in that county since 1994. At this point, we also note Arkansas’s well-established rule that election procedures are mandatory before an election but are only directory after the election. See Allred v. McLoud, 343 Ark. 35, 31 S.W.2d 836 (2000); see also Spires v. Compton, 310 Ark. 431, 837 S.W.2d 459 (1992) (appellants did not seek to remedy a precinct boundary problem until after the election, and the court, in upholding the election, stated that the rule, providing precinct boundaries after an election are directory, undergirds the stability of elections by making it more difficult to set aside an election because of an inadvertent or technical violation of an election law provision). Here, appellees had every opportunity to question the district and voting precincts established in Varner, yet they failed to do so prior to the May 23 election when they could have readily avoided undertaking the extreme remedy of setting aside or voiding the District 9 races. For the reasons above, we hold the trial judge erred in declaring the District 9 races void. And because the appellants’ election certifications were valid, the trial judge’s decision declaring the appellees, as incumbents, entitled to hold over, is also erroneous.

In conclusion, we address appellees’ motion to dismiss this appeal because the appellants failed to file their notices of appeal within seven calendar days from the date of the entry of the judgment in an election contest, as provided under Ark. Code Ann. § 7-5-810 (Repl. 2000). Appellees argue that appellants’ untimely filing of their notices of appeal renders this court without jurisdiction to decide this appeal. Appellees are mistaken; that provision simply is not applicable to this proceeding. That provision clearly reflects that it applies to election-contest proceedings as authorized in Ark. Code Ann. §§ 7-5-801, et seq. (Repl. 2000). The trial judge in this case rejected appellees’ election-contest claims, and appellees filed no appeal from that ruling. What appellants challenge in this appeal is the trial judge’s decision to void the appellants’ and appellees’ primary races. In short, this part of the trial judge’s ruling does not concern an election contest action as that right of action is described in § 7-5-801. Therefore, we deny appellees’ motion to dismiss.

We reverse and remand this case with directions for the trial court to enter an order consistent with our holdings set out in this opinion. Such an order shall include recognizing that appellees are not entitled to retain their offices or positions as holdovers since appellants were lawfully certified as winners in their respective races.