text:
    FIRSTBANK OF ARKANSAS (formerly First National Bank of Brinkley) v. Barbara A. Cross KEELING
    92-704
    850 S.W.2d 310
    Supreme Court of Arkansas
    Opinion delivered April 5, 1993

      Elledge & Martin, by: Steven W. Elledge, for appellant.

      Wilson & Associates, by: Kathleen Bell, for appellee.
   Robert H. Dudley, Justice.

Barbara Keeling, the plaintiff, owned one lot in block 2 and two lots in block 3 of the original Town of Cotton Plant. Her home was situated on the lots in block 3, and some type of structure was on the lot in block 2. On May 27, 1988, the bank loaned $12,000.00 to the plaintiff. The plaintiff executed a $12,000.00 installment promissory note to the bank and a mortgage as security for the note. The bank also required the plaintiff to insure the property for $25,000.00, so she obtained a policy of insurance on the property from the Columbia Mutual Casualty Insurance Company. The policy, under the loss payable clause, listed her as the owner and the bank as the mortgagee. Subsequently, the plaintiff failed to make the installment payments, and the bank filed suit for foreclosure. On December 13, 1988, the chancery court entered a judgment against the plaintiff in the amount of $12,297.42 for principal and court costs, plus $754.39 interest to that date, $1,276.61 attorney’s fees, $252.00 abstracting fees, and a $40.00 overdraft charge, or a total of $14,602.42 with future interest to accrue at the rate of $3.71 per day until satisfied. The chancery court ordered that if the foregoing amount was not paid the property was to be sold at judicial sale. A judicial sale, or foreclosure, was held on January 6,1989. The bank purchased the property with a bid of $6,000.00. By that time an additional twenty-five days interest had accrued, making additional interest of $92.75 due. Thus, the total judgment debt was $14,695.75, and the bank bid of $6,000.00 left a deficiency of $8,695.17.

A little over two weeks later, on January 24, 1989, the plaintiffs home was destroyed by fire.

On February 1, 1989, the bank took a deficiency judgment against the plaintiff. On February 28,1989, the lots in both blocks were conveyed by commissioner’s deed to the bank. The bank did not give notice to the insurance company of the change in ownership.

On July 21,1989, the defendant bank sold the lots in block 3 to Dorothy Clark. Revenue stamps in the amount of $ 13.20 were affixed to the deed, indicating a sale price of $6,000.00. The conveyance was by warranty deed executed by the president of the bank, Eddie Melson, and the secretary of the bank, Chris Rainbolt. After this conveyance, the defendant bank held title only to the lot in block 2.

The insurance company questioned the parties’ insurable interests but ultimately reached settlement agreements, first with the defendant bank and then with the plaintiff. In the first phase of its settlements, the insurance company paid the bank $ 12,682.00, and the bank executed a release by which it agreed to assign its deficiency judgment to the insurance company, hold title “in trust” to all of the lots, even though it had already conveyed away the lots in block 3, and “to convey it to Columbia or its designee upon request.” In the second phase of its settlements, the insurance company reached an agreement with the plaintiff. It agreed to pay her $800.00, have the bank convey all of her property back to her, and release her from the judgment that had ■ been assigned to it. In executing the settlements, the insurance company requested that the bank convey all of the property back to the plaintiff. The bank executed and delivered to plaintiff a quitclaim deed to the tracts in both blocks. The quitclaim deed was signed by the president of the bank, Eddie Melson, and the secretary of the bank, Chris Rainbolt. As would be expected, the plaintiff soon discovered that Dorothy Clark claimed title to the lots in block 3, and had a prior deed from the bank conveying the lots in block 3 to her.

The plaintiff and the insurance company thought that the defendant bank might have made a mistake in twice conveying the same property, for, after all, the bank had collected a total of $18,682.00 from Dorothy Clark and the insurance company. That was well in excess of the amount the plaintiff owed, and the insurance company asked the bank to correct the situation by repurchasing the property from Dorothy Clark, or refunding part of the plaintiff’s money. The bank refused to right the wrong. It left the plaintiff without title to the lots that she had re-purchased in block 3.

Plaintiff then filed this suit against the bank in circuit court. She alleged most of the above-stated facts and concluded that the bank had breached the contract of settlement and “acted knowingly, wilfully, wantonly and in bad faith” and that its conduct was “outrageous.” At the bench trial of this case, the plaintiff testified about her mental anguish and suffering, which occurred as a result of the bank’s actions. At the conclusion of the trial, the trial court found the bank liable, apparently on the theory of fraud or deceit, awarded plaintiff $5,000.00 for her pain and suffering, and awarded her $10,000.00 in punitive damages. The trial court did not state the theory on which the damages were awarded, and the bank did not inquire into the issue, nor did it seek to have the trial court rule on the matter. It was up to the bank to obtain a ruling giving the basis of the trial court’s ruling. See Carpetland of N. W. Ark., Inc. v. Howard, 304 Ark. 420, 803 S.W.2d 512 (1991). The trial court’s comments indicate that it dismissed the cause of action for the alleged breach of contract because the plaintiff failed to prove the fair market value of the lots that she did not get, and that the verdict was based on the tort of fraud. One comment illustrating that the trial court apparently awarded the damages based on the theory of fraud occurred when the bank’s attorney objected to evidence of the plaintiffs pain and suffering. The bank’s attorney stated that pain and suffering were not relevant to a breach of contract action. The plaintiffs attorney responded that “our complaint was founded on fraud and the outrageous conduct of the bank and we alleged that mental anguish imposed upon her.” The bank’s attorney did not respond, and the trial court then allowed the evidence of mental anguish without further objection.

We do not address the bank’s first two assignments of error because both of them concern asserted errors of the trial court in ruling on the breach of contract action. Again, the trial court did not award any damages based upon breach of contract.

The bank’s third assignment of error contains arguments that deal with both the breach of contract action and the tort action. Again, we do not address that part of the argument going to breach of contract. We address only that part of the argument that concerns the tort action. The bank argues that the terms of the contract between the bank and the insurance company release it from any liability for its fraud or deceit. The bank cites no authority holding that an agreement is effective to exonerate one from liability for fraudulent conduct inducing another to enter into a contract, and we know of none. In Farmers Bank v. Perry, 301 Ark. 547, 550, 787 S.W.2d 645, 646 (1990), we stated, “[T]his court has never upheld an agreement purporting to release a party from liability from his own negligence before it occurred.” The reason for disfavoring such clauses is based upon the public policy of encouraging the exercise of reasonable care. Id. While it is not impossible for such an agreement to be enforceable, the clause must clearly set out the negligence for which liability is to be avoided. Id. See also, Allen v. Overturf, 234 Ark. 612, 353 S.W.2d 343 (1962). In summary, the trial court correctly ruled that the agreement between the bank and the insurance company did not release the bank from liability for its fraud or deceit, and that ruling was correct.

The bank next argues that the trial court erred in denying its motion for a directed verdict on the issue of compensatory damages. While the bank never really moved for a directed verdict on any basis, and certainly did not do so on the basis of impropriety of compensatory damages in a fraud action, it does not matter. This was a bench trial, and it is not necessary to move for a directed verdict at a bench trial in order to appeal on the basis of insufficiency of the evidence. Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982). Even so, the bank does not argue in this appeal that the plaintiff failed to prove the elements of deceit, and we do not consider that issue. The bank argues that the trial court erred in awarding compensatory damages because they were not proper and the award was against the weight of the evidence. The bank offers neither a citation nor convincing argument for its contention that damages for mental anguish are not proper in an action for the intentional tort of fraud or deceit. As we have said many times, when the appellant does not cite any authority, nor make a convincing argument, and where it is not apparent without further research that the point is well taken, we will affirm. We will not do the appellant’s research for him. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). The bank also argues that the award of damages for pain and suffering was against the weight of the evidence. The resolution of conflicts in the testimony is not within the province of an appellate court; it is fundamentally a function of the finder of fact, and a finding is usually conclusive, especially where credibility of witnesses is involved. Blisset v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970). Here, we cannot say the award was clearly erroneous.

The bank’s final argument involves the award of punitive damages and is two-fold. The first part is that the trial court erred in granting compensatory damages, and, since compensatory damages are a prerequisite for punitive damages, the trial court erred in awarding punitive damages. Since we have affirmed the award of compensatory damages for the reasons set out in the last paragraph, the predicate for the argument about punitive damages fails. Thus, we dismiss the argument. The second part of the argument is that there was not sufficient evidence for the trial court to award punitive damages. Again, the bank did not raise the issue below. Even so, we must consider the alleged error in the assessment of damages. Bass v. Roller, 276 Ark. 93, 632 S.W.2d 410 (1982). The argument is without merit because if there is substantial evidence to show deliberate misrepresentation, fraud, or deceit, the issue of punitive damages may be submitted to the jury. Stein v. Lucas, 308 Ark. 74, 823 S.W.2d 832 (1992). Here, there was substantial evidence of deliberate misrepresentation or deceit.

In addition to the direct appeal by the bank, the plaintiff has filed a cross-appeal. At the trial, the trial court ruled that the plaintiff was not entitled to any damages for the breach of contract because she did not offer any proof of the fair market value of the lots that she re-purchased from the bank but which had already been sold to Dorothy Clark. The plaintiff argues that the trial court erred in refusing to recognize the revenue stamps affixed to the deed as fixing the fair market value of the lots. The plaintiff cites no authority for her argument, and we know of none. Even if the revenue stamps did represent the actual price paid by Dorothy Cook, the trial court did not know whether that amount was the true market value. The record does not reflect any details of her transaction with the bank, whether it was an arms-length transaction, or whether she paid more or less than the market value. Thus, the revenue stamps, standing alone, and on just one sale, cannot be said to be substantial evidence of the true market value of the lots. See Tuthill v. Arkansas County Equalization Bd., 303 Ark. 387, 797 S.W.2d 439 (1990). Accordingly, we also affirm on cross-appeal.

Affirmed on direct appeal and on cross-appeal.


source: Caselaw Access Project

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

license: Public Domain

text:
    IN RE: PETITION OF Sam L. ANDERSON, Jr., for Readmission to the Bar of Arkansas
    92-430
    851 S.W.2d 408
    Supreme Court of Arkansas
    Opinion delivered April 5, 1993
    [Rehearing denied May 17, 1993.]

      Hargraves & McCrary, by: Robert S. Hargraves, for petitioner.

      Hoover, Jacobs & Storey, by: Tucker Raney and Letty C. McAdams, for respondent.

      Holt, C.J., and Dudley, J., would grant rehearing.

   Robert H. Dudley, Justice.

The petitioner was admitted to the Bar of Arkansas in 1980. In 1983 and 1984, while a practicing attorney, petitioner committed a number of felonies. He was charged by the United States Attorney in a three-count indictment filed in United States District Court. He was tried in 1985, and the jury found him guilty on all three counts of the indictment. He was sentenced to three years in federal prison on each count and fined $2,000 on each count. He petitioned this court and asked to unconditionally surrender his license in order to avoid disbarment. On December 8,1986, by per curiam order, this court unconditionally accepted the surrender of his license.

Petitioner was discharged from parole on October 9, 1990. Three months later, on January 2, 1991, he filed a petition with the Board of Law Examiners asking for reinstatement to the Bar of Arkansas. That Board determines whether, and on what conditions, one should be readmitted to the Bar. The Board held a hearing and, by a divided vote, denied the petition for reinstatement. The conclusion of the Board’s finding is as follows:

Mr. Anderson is far along in the rehabilitation process and that he has met all the technical requirements for admission, however, his felony conviction [s] singularly outweighs the positive evidence of the record; that Mr. Anderson has not met his burden of establishing eligibility for reinstatement and his petition is denied.

The petitioner appeals from the Board’s ruling. We affirm the ruling.

The facts involved in the crimes for which petitioner was convicted in federal district court are significant to our holding, and, therefore, the counts of the indictment are quoted in full:

Count I.
On or about November, 1983 and continuing through the end of February, 1984, SAM ANDERSON, JR., the defendant herein, did knowingly and wilfully combine, conspire, confederate and agree with Roger Clinton to possess with intent to distribute cocaine, a Schedule II controlled substance, in violation of Title 21 United States Code, Section 841(a)(1).
The following overt acts were committed in furtherance of the conspiracy:
1. In November, 1983, SAM ANDERSON and Roger Clinton discussed the purchase and distribution of cocaine in the Hot Springs area.
2. In November, 1983, SAM ANDERSON paid Roger Clinton $4,000.00 for cocaine.
3. On or about November 21, 1983, SAM ANDERSON paid $4,000.00 to Roger Clinton and received approximately two ounces of cocaine.
4. On or about December 11, 1983, Roger Clinton travelled to New York City to purchase cocaine for SAM ANDERSON.
5. On or about December 15, 1983, SAM ANDERSON paid Roger Clinton approximately $6,000.00 for cocaine.
6. On or about December 19, 1983, SAM ANDERSON paid Roger Clinton $4,000.00 for cocaine.
7. In January, 1984, SAM ANDERSON paid Roger Clinton approximately $4,000.00 for cocaine.
8. On or about January 19,1984, Roger Clinton flew to New York City to purchase cocaine for SAM ANDERSON.
9. On or about January 22, 1984, SAM ANDERSON paid Roger Clinton approximately $10,000.00 for cocaine.
10. In February, 1984, SAM ANDERSON and Roger Clinton discussed the purchase of 10 to 15 ounces of cocaine.
11. On or about February 24, 1984, Roger Clinton picked up approximately nine ounces of cocaine from Maurice Rodriguez for delivery for SAM ANDERSON.
All of which acts were in furtherance of the conspiracy and in violation of Title 21 United States Code, Section 846.
Count II.
Beginning in early May, 1984, and continuing through the end of June, 1984, in the Western District of Arkansas, Hot Springs Division, SAM ANDERSON, JR., the defendant herein, did knowingly and wilfully combine, conspire, confederate and agree with Maurice Rodriguez to possess with intent to distribute cocaine, a Scheduled II controlled substance, in violation of Title 21 United States Code, Section 841(a)(1).
The following overt acts were committed in furtherance of the conspiracy:
1. On or about the middle of May, 1984, SAM ANDERSON and Maurice Rodriguez discussed the purchase of cocaine.
2. On or about May 15, 1984, Maurice Rodriguez received $8,000.00 from SAM ANDERSON to purchase cocaine.
3. On or about May 16, 1984, Maurice Rodriguez travelled to New York City.
4. On or about May 23, 1984, Maurice Rodriguez returned to Hot Springs from New York City.
5. On or about May 23, 1984, Maurice Rodriguez delivered approximately four ounces of cocaine to SAM ANDERSON.
6. On or about June 4, 1984, SAM ANDERSON gave a German license tag to Maurice Rodriguez to use on a vehicle driven by Rodriguez to Arkansas.
All of which acts were in furtherance of the conspiracy and in violation of Title 21 United States Code, Section 846.
Count III.
On or about June 20,1984, in the Western District of Arkansas, Hot Springs Division, SAM ANDERSON, JR., knowingly and intentionally did unlawfully distribute cocaine, a Schedule II controlled substance, in violation of 21 United States Code, Section 841(a)(1).

Another fact that is significant to the holding is that, commencing in 1982, the petitioner served as Roger Clinton’s attorney and represented him in a number of matters.

Rule 17 of the Rules of Professional Conduct provides that if a member of the bar is “convicted of a felony . . . under the laws ... of the United States,” disciplinary action, including disbarment, may be taken. Rule 7(d) of the Rules of Professional Conduct provides that a member of the bar may voluntarily surrender his or her license to practice law. Such surrenders of a license are absolute. In re Webster, 307 Ark. 40, 816 S.W.2d 612 (1991). Petitioner unconditionally surrendered his license “to avoid unnecessary proceedings,” and we unconditionally accepted petitioner’s surrender of his license.

This court has the inherent power to discipline an attorney. Hurst v. Bar Rules Comm., 202 Ark. 1101, 1108, 155 S.W.2d 697, 701 (1941). In addition to this court’s inherent power, Amendment 28 to the Constitution of the State of Arkansas expressly gives this court the authority to regulate the practice of law. The constitutional amendment was adopted in 1928 to make it absolutely clear that this court could make rules regulating both the practice of law and the conduct of attorneys. The purpose of the amendment was to protect the public and to maintain the integrity of the courts and the honor of the profession. An attorney’s client often entrusts his property, or his liberty, or possibly his life, to the attorney. A position of trust, if not an actual fiduciary relationship, often exists. It is the responsibility of this court to see that the public can maintain that trust in the Bar. We have said the “honor of the profession” is one of the considerations in determining readmission. Hurst v. Bar Rules Comm. The practice of law is a privilege, not a right. In re Petition for Reinstatement of Lee, 305 Ark. 196, 806 S.W.2d 383 (1991). Once a lawyer has lost his license to practice law, either through surrender or disbarment, there is a presumption against readmission. Hurst v. Bar Rules Comm.

The protection of the public and the honor and integrity of the profession have long been the principal criteria in determining whether a person should be admitted or readmitted to the bar. In the case of In re Petition of Shannon for Readmission to the Bar of Arkansas, 274 Ark. 106, 108-A, 621 S.W.2d 853, 855 (1981), we said: “The overriding considerations on the question of readmission are the public interest, the integrity of the bar and the courts with due consideration to the rehabilitation of the petitioner with respect to good moral character and mental and emotional stability.” (Emphasis added.)

Petitioner first argues that the ruling of the Board of Law Examiners is clearly against the preponderance of the evidence. Petitioner’s argument is primarily based upon his rehabilitation, but it does not give sufficient weight to the overriding considerations of the public interest and the integrity of the Bar. The finding of guilt on the three counts of the federal indictment demonstrates that the criminal conspiracies entered into by petitioner were lengthy and complex. They were planned and designed by a member of the Bar and were committed with full intent to break the law. Even worse, the petitioner, who was a member of the Bar, entered into a criminal conspiracy with one of his clients, and did so while he was serving as the client’s counsel. Finally, the distribution of cocaine is a most hurtful offense.

As previously set out, the overriding considerations for readmission are the public interest and the integrity of the bar. It is indubitable that public confidence in the bar, as well as the integrity of the bar, would be diminished by the readmission of a lawyer who had been convicted of entering into a criminal conspiracy with his client, just as it would be diminished by the readmission of a lawyer who had been convicted of distributing cocaine. Even if confidence in the Bar were not harmed at the local level by this case, and even if the integrity of the bar at the local level were not diminished by this case, both would be subsequently damaged at the state level because the Board of Law Examiners would be obliged to follow the precedent and allow readmission to criminals who had held a law license and who had been convicted of crimes involving their clients.

On the other hand, petitioner has made remarkable progress in his rehabilitation and is to be commended for his efforts. A clear majority of the members of the local bench and bar have given statements that petitioner has acted in an exemplary manner since his discharge from prison, and they ask that he be reinstated, as do a number of local and locally elected state officials and civic and business leaders. However, we give only due consideration to rehabilitation. The overriding consideration is the public trust and the honor of the profession. In sum, under our established standards for readmission, we cannot say the weighing of factors and ultimate ruling of the Board was erroneous.

The petitioner next argues that the Board of Law Examiners erred in concluding that a felony conviction is a bar to reinstatement. We summarily dismiss the argument because a felony conviction, in itself, will not always prevent reinstatement, and the Board did not so hold. The Board held that the felonies involved in this case and the concomitant public interest and honor of the profession outweigh the petitioner’s good efforts at rehabilitation.

The petitioner next contends that three other cases stand in contrast to a refusal to reinstate him, and on a comparative basis he ought to be readmitted. The argument is without merit for two reasons. First, each case must stand on its own, and second, the cases used in comparison are inapposite. The first of the allegedly comparative cases cited by petitioner involved a member of the Bar who was arrested for possession of a controlled substance, felony hit and run, driving while intoxicated, reckless driving, and refusal to submit to urine analysis. He surrendered his license, but there is no evidence that he was ever convicted of any of the charges, not even evidence that he was convicted of a misdemeanor. He was allowed readmission by the Board of Law Examiners.

The second case did not involve either a surrender of a license or a disbarment proceeding. It did not involve an application for reinstatement to the Board of Law Examiners. Rather, it involved a disciplinary proceeding before the Committee on Professional Conduct. In that case a judge was charged with a misdemeanor for contributing to the delinquency of a minor for soliciting sex with a juvenile defendant. The Committee on Professional Conduct suspended that member of the Bar from practice for one year “for a violation of Rule 8.4(b) and 8.4(d) of the Rules of Professional Conduct.” Without a license that person was no longer eligible to serve as a judge, and therefore, he could no longer serve in that office. The third case also involved a disciplinary proceeding before the Committee on Professional Conduct and was not a proceeding before the Board of Law Examiners. In that case the Committee on Professional Conduct suspended the attorney from the practice of law for sixty days for not maintaining a trust account of his client’s money separate from his own accounts and for using his client’s money. Again, none of these three allegedly comparative cases involved a conviction for the commission of a felony, especially one involving a client.

The petitioner’s final argument involves a pardon. On November 5, 1991, eleven months after he filed his petition for reinstatement, the then Governor of the State, Governor Clinton, issued a proclamation which the petitioner labels a pardon. He argues that it was a violation of the separation of powers doctrine for the Board to refuse to recognize the legal effect of the Governor’s pardon of the felony convictions. We could summarily dismiss the argument because the proclamation is not a full pardon, but rather it is only a pardon conditioned upon “a federal removal of disabilities,” and there is no evidence that such federal action has taken place. Similarly, we might decide the issue on the basis of whether a governor of a state might pardon one of a federal crime, but instead we choose to go to the merits of the issue. We do not have a case of our own that is squarely on point, but we have two cases that give guidance, and other states have decided cases that are on point.

First, we address our cases that give us some guidance. In State v. Carson, 27 Ark. 469 (1872), we considered whether a pardon operated to restore one convicted of a felony to the office of probate and county judge despite the constitutional and statutory provisions barring felons from holding office. We said that “such judicial officer forfeits his office by conviction of a felony and that no pardon can restore him.” Id. at 471. In State v. Irby, 190 Ark. 786, 81 S.W.2d 419 (1935), we had a fact situation almost identical to Carson. We wrote:

While a pardon has generally been regarded as blotting out the existence of guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense it does not so operate for all purposes, and as the very essence of a pardon is forgiveness or remission of penalty, a pardon implies guilt, it does not obliterate the fact of commission of the crime, and the conviction thereof; it does not wash out the moral stain; as has been tersely said it involves forgiveness and not forgetfulness.

Id. at 797, 81 S.W.2d at 424 (quoting 46 C.J. 1192).

The state constitution places the duty and responsibility upon this court to determine who shall be licensed to practice law. Other states have this same separation of powers. In Hankamer v. Templin, 187 S.W.2d 549, 551 (Tex. 1945), the court wrote, “[T]he governor can forgive the penalty but he has no power to direct the courts to forget the conviction.” Regarding the respective powers of the three branches of government, the court in Scott v. Leathers, 52 S.E.2d 40, 43 (Ga. 1949), wrote, “[J]ust as the legislative may not by statute defeat the constitutional power of the executive to dispense clemency, neither the legislative or the executive may defeat the judiciary’s inherent power over attorneys at law.” In re Lavine, 41 P.2d 161, 164 (Cal. 1935), the court wrote, “[T]he pardoning power does not extend to the reinstatement of an attorney excluded from the practice of law on the order of a court.” We agree. The power of the executive branch to grant pardons does not limit the constitutional power of this court to regulate the legal profession.

In conclusion, the Board of Law Examiners found that petitioner’s rehabilitative efforts were outweighed by his commission of the three felonies and the concomitant detrimental effect his readmission would have both on the public trust of the Bar and on the integrity of the Bar. That holding is not erroneous, and is, accordingly, affirmed.

Affirmed.

Holt, C.J., and Hays, J., dissent.

Steele Hays, Justice,

dissenting. I agree with the majority opinion in some respects, in particular that those who come to the bar are bound by a solemn covenant to uphold the law by adherence and by example. A lawyer who rends that covenant in deliberate and material ways risks perpetual disbarment. Even so, I believe the petitioner has made a convincing case for reinstatement, notwithstanding the seriousness of these offenses.

It should first be mentioned that the vote by the Committee could not have been closer — six votes against reinstatement to five votes for. Thus, a vote change of one out of the eleven would have reversed the result. The closeness of that vote bespeaks the strength of the petitioner’s case.

Although we review this case de novo, the majority opinion largely ignores the evidence presented to the Committee, preferring instead to quote verbatim the three counts of the federal indictment. But those are mere allegations and we know nothing from this record concerning the specifics of the evidence presented in the federal trial of Sam Anderson. It is simply not before us.

That significant omission in the majority opinion makes it incumbent on this opinion to outline the evidence pro and con. The evidence in support of Anderson’s application includes the following:

Mr. Neil Pennick, an attorney in Hot Springs since 1982 and currently deputy prosecuting attorney and assistant city attorney, has known the petitioner about five years, attesting to his maturity, sound mental and emotional stability and good moral character. He expressed the opinion that Anderson recognizes his own accountability and sincerely regrets that he ever got involved with drugs.

Mr. Scott Hickam, an attorney practicing in Hot Springs since 1979, testified that professionally he has found petitioner to be diligent, competent, honest and trustworthy. He has never had reason to question those traits in him. He considers petitioner to be remorseful, progressing from “I wish this wasn’t happening to me,” to “this is something I should not have done.” He never regarded petitioner as a drug distributor, but involved in exchanging drugs within a certain social group. He considers him a much different person today than seven or eight years ago. As chair of the Garland County Unauthorized Practice of Law Committee he was aware of no complaints that any actions by Anderson crossed the line between lawyer and paralegal. He had no reservations at all concerning Anderson’s moral character or emotional stability nor did he know of any opposition in the community to his reinstatement.

Kristi Anderson testified that she and Sam Anderson married in December 1989 after dating some twelve months. She is a graduate of Ouachita Baptist University and a licensed school teacher with five years experience. They have an infant daughter. Mrs. Anderson testified to the routine of their family life and to petitioner’s work habits and domestic responsiveness. She said there were no drugs in their home and never would be.

Sam Anderson testified that since his release he has been employed as a paralegal in his father’s law office, and has adhered to the disciplines outlined in articles on that topic in publications of the Arkansas Bar Association and Arkansas Trial Lawyers Association. He maintains he used cocaine socially for approximately six months and had voluntarily ended the usage some four or five months before his indictment in November of 1984. He has kept abreast of developments in the law and has undergone random bi-weekly drug testing over the past year under the supervision of Dr. John Simpson. The results were consistently negative except for some prescribed medication associated with back surgery. He outlined the events of his drug abuse and professed to regret the mistakes of that experience and to accept full responsibility for them.

Donald R. Williams, United States Probation Officer for sixteen years, a resident of El Dorado, testified that he supervised petitioner upon his release from prison. He was present at petitioner’s trial and viewed his drug use as primarily social, involving a circle of friends in a trendy lifestyle, trading among themselves. He saw no indication that petitioner was engaged in drug traffic. He likened it to one person buying a keg of beer with the others sharing the cost. There was, he said, no indication that petitioner was addicted. The conditions of petitioner’s parole included drug testing, and regular reporting to the probation office which monitored his activities. There were never any negative reports or tests and Anderson was prompt and conscientious in all that was required of him. Officer Williams considered Anderson to be honest, hardworking, dependable and trustworthy and he recommended him for reinstatement. He testified that he had asked to appear on behalf of petitioner, which he had done only twice previously in sixteen years of service. He said there was no evidence of substance abuse prior to November 1983 or after May 1984.

Dr. Douglas A. Stephens, clinical psychologist, testified to petitioner’s emotional and mental stability, characterizing the profile as “very positive,” and without negatives. Based on his own observations over many years he saw petitioner as professionally efficient, resourceful and capable and whereas he earlier tended to be impulsive and somewhat immature, he was “much more mature” some eight years hence.

Accompanying petitioner’s application are some forty-eight letters from professionals, businessmen and women, civil leaders and officials attesting to the good moral character and stability of Sam Anderson and recommending his reinstatement. The list includes the chief of police, the Garland County sheriff, chief deputy sheriff, two chancery judges, a municipal judge, and state and county officials. Among the supporting documents accompanying the application is a petition signed by fifty attorneys practicing in Garland County pledging their support and endorsement for the reinstatement of Sam Anderson to the bar of Arkansas.

Against that rather imposing array of support stands a single, unsigned letter expressing the view that an attorney who has been convicted of a felony should never, ever be readmitted to the bar. That, of course, simply restates the question to be decided and otherwise has little bearing on the case. As to the fitness of this petitioner, there is nothing of a negative character beyond the fact of his crime and conviction.

The Committee did not take issue with any part of that evidence and, in fact, gave an implied endorsement to “the positive evidence of the record,” concluding by narrow vote that the “felony conviction singularly outweighs” such proof. In reaching an opposing view I am persuaded by the following factors:

1. This offense is not one involving dishonesty, professional conduct, defalcation of funds, or the like, to the pecuniary gain of the perpetrator.

2. The substance abuse involved a span of about six months, ceased voluntarily, and occurred nearly ten years ago.

3. Anderson has paid the penalty exacted by society, satisfied in full the fine imposed and has been conditionally pardoned by the Governor, whatever its legal significance may be.

4. Anderson has satisfactorily complied with all the conditions of his release.

5. Anderson’s federal parole officer recommends his reinstatement in the strongest terms.

6. Numerous professional peers attest to Anderson’s good moral character and subscribe to his fitness to reenter the practice.

7. Fifty practitioners in Garland County have pledged their unqualified support and endorsement of Anderson’s application for reinstatement.

8. The chief of police, county sheriff, chief deputy sheriff and a great many state and county officials endorse Anderson’s application without qualification.

9. Anderson, by most indications, has come to terms with his prosecution and conviction, recognizing where the responsibility lies and manifesting a resolve that there be no repetition. A change in lifestyle and the maturing effect of marriage and

parenthood are clearly evidence.

10. No complaints have been filed against Sam Anderson with the Committee on Professional Conduct nor is there any suggestion that he has been less than circumspect while engaged as a paralegal.

In sum, I can see no loss to the integrity of the bar for Anderson to reenter the practice. I suspect he will prove to be more mature and circumspect for his experience.

Holt, C.J., joins in this dissent.


author: Robert H. Dudley, Justice.

text:
    Linda RAINEY v. Retha TRAVIS
    92-857
    850 S.W.2d 839
    Supreme Court of Arkansas
    Opinion delivered April 5, 1993

      Sanford & Stiritz, by: Jon R. Sanford, for appellant.

      Laws & Murdock, P.A., for appellee.
   Robert H. Dudley, Justice.

Appellant, Linda Rainey, the plaintiff below, is the daughter of Dolan Travis and his first wife, who died in the forty-ninth year of their marriage. In 1986, after his wife’s death, Dolan Travis, who was about seventy years old at the time, and appellee, Retha Travis, who now is seventy years old, decided to get married. The prospective spouses each consulted with their attorneys and entered into an antenuptial agreement that gave appellee the right to live in Dolan Travis’s home after his death. The material provision is as follows:

The following real property, which is the prospective husband’s home, shall remain his separate property, except the wife can remain in the home after his death for the rest of her natural life, unless she vacates the property for any reason. Wife specifically waives and relinquishes any dower or homestead rights she may have, now or in the future, in the following real property: [property description].

Dolan Travis and Retha Travis, the appellee, were married on September 6, 1986. He died on September 29, 1987, a little over a year later. After Dolan Travis’s death, appellee continued to live in the home. Unfortunately, the home is located within sight of appellant’s home, and, over a period of several months, appellant and some other neighbors observed that a truck was parked in front of appellee’s home and remained there overnight. Appellant decided that appellee was permitting a man to stay in the home overnight, and, since it had been her parent’s home, she thought such action was outrageous. She filed suit alleging that the action was in breach of an oral side-agreement to the prenuptial agreement and that it amounted to intentional infliction of emotional distress. Appellee moved for summary judgment, and the trial court granted the motion. Appellant appeals. The ruling of the trial court was eminently correct.

Appellant alleged that appellee’s conduct was in violation of one of four alleged oral side-agreements that were entered into as a part of the antenuptial agreement. She indicated that her father had told her of the existence of these agreements after the antenuptial agreement was written, but before it was executed. One of the alleged oral agreements was that appellee could remain in the home only as long as she lived there alone and only as long as she did not use the home for any immoral purpose. Appellant alleged the breach of this agreement and further alleged that the breach of this agreement constituted the intentional infliction of emotional distress.

Appellant first argues that the prenuptial agreement is ambiguous and that parol evidence is admissible to explain the ambiguity. She makes the argument because it is only when an ambiguity exists in a contract that parol evidence is admissible. See Isbell v. Ed Ball Construction Co., 310 Ark. 81, 833 S.W.2d 370 (1992). The prenuptial agreement is clear on the issue of the appellee’s right to live in the house. There is no ambiguity, and the trial court correctly ruled that extrinsic evidence was not admissible.

Appellant also argues that parol evidence should be admissible to establish the restrictions on appellee’s right to live in the home because the additional agreements are collateral agreements, and extrinsic proof of collateral agreements is not excluded by the parol evidence rule. This court discussed the “collateral agreement rule” in Lane v. Pfeifer, 264 Ark. 162, 568 S.W.2d 212 (1978). There we stated,

It is well recognized that parol evidence cannot be introduced to change or alter a contract in writing. The test of admissibility is whether the evidence offered tends to alter, vary, or contradict the written contract, or only to prove an independent, collateral fact about which the written contract was silent. In the former instance the testimony is inadmissible; in the latter, it is competent and proper. When testimony is offered to prove an independent, collateral fact about which the written contract is silent, the parol evidence rule is not applicable. . . .

Id. at 167, 568 S.W.2d at 215 (citations omitted).

In the present case, the prenuptial agreement provided for appellee’s interest in the home. The agreement gave appellee the right to live in the home after the husband’s death for the rest of her life unless she vacates the property. The agreement covered the subject. The additional requirement, alleged by appellant to have been breached, requires appellant to live in the home alone and to not use the home for any immoral purpose. This relates directly to the unconditional right to live in the home granted in the agreement. The additional requirement is therefore neither independent nor collateral, as is required under Lane. Thus, the trial court correctly ruled that extrinsic evidence was not admissible to establish the existence of additional requirements.

Because the extrinsic evidence proposed by appellant does not concern independent, collateral agreements, it must be offered to alter the antenuptial agreement. As such, the evidence is excluded by the parol evidence rule. Under that rule, all prior and contemporaneous proposals and agreements merge into the written agreement, which cannot be added to or varied by parol evidence. City of Crossett v. Riles, 261 Ark. 522, 549 S.W.2d 800 (1977). This rule applies only to documents that the parties intended as a final and complete expression of their agreement. See Farmers Coop. Ass’n, Inc. v. Garrison, 248 Ark. 948, 454 S.W.2d 644 (1970). In the present case, the antenuptial agreement contains what is termed a “merger clause.” The clause reads, “The provisions contained in this agreement represent the entire understanding between prospective husband and prospective wife pertaining to their respective property and marital property rights.”

Finally, the Court of Appeals has held that the parol evidence rule does not apply to bar a stranger from introducing extrinsic evidence concerning a written agreement. See Silivcraft, Inc. v. Southeast Timber Co., 34 Ark. App. 17, 805 S.W.2d 84 (1991); Sterling v. Landis, 9 Ark. App. 290, 658 S.W.2d 429 (1983). The rule cited by the court in those cases was based on holdings of this court. We have held that the parol evidence rule bars only parties and those claiming an interest under the contract from using extrinsic evidence regarding the contract. See Barfield Mercantile Co. v. Connery, 150 Ark. 428, 234 S. W. 481 (1921); Talbot v. Wilkins, 31 Ark. 411 (1876).

Here, appellant is not in privity of contract with her father, as she did not succeed to the rights of her father under the contract. However, appellant is not a “stranger” to the contract and has sufficient ties to it to be bound by the rule as would the parties. In Barfield Mercantile, we held that the situation of a nonparty to the written instrument fell within the operation of the rule so that the nonparty was entitled to the benefit of the parol evidence rule. In that case the nonparty was a former lessee who had sold his leasehold interest to one who later purchased the fee interest. The trial court had allowed the former owner of the fee estate to testify that there was an oral agreement in the sale of the property that the rents for that year would be reserved to her. On appeal, we held that the trial court erred in allowing the oral testimony. We held that the nonparty was “directly interested” in the deed because it was in the chain of conveyances that merger of the fee and leasehold estates occurred and thus the extinguishment of his obligation under the lease.

In the present case, appellant is entitled to possession of the real estate when appellee no longer lives in the home. She received that right to the real estate as her father’s heir. The agreement giving appellee the right to live in the home substantially and directly affects appellant’s rights in the real estate. She cannot sell the home or live in it herself because of the agreement. Under these facts, appellant has sufficient ties to the agreement to cause her to be “directly interested” in it under Barfield Mercantile, and she is thus bound by the parol evidence rule just as the parties to the agreement would be.

Appellant argues that the trial judge also erred in granting summary judgment on the second count of her complaint, intentional infliction of emotional distress. This court has recently summarized the law in Arkansas on this tort:

We first recognized the tort of outrage — the intentional infliction of emotional distress — in M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). The conduct complained of must be “so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” While this court has recognized the type of conduct must be decided on a case by case basis, the stringent standard in Counce has prevailed.

Neff v. St. Paul Fire & Marine Ins. Co., 304 Ark. 18, 20, 799 S.W.2d 795, 796 (1990) (citations omitted).

Appellant’s basis for her claim of intentional infliction of emotional distress falls far short of meeting the stringent standard followed by this court. The fact that a seventy-year-old woman is having a man spend the night in the home in which she has a right to live is not conduct so outrageous and extreme as to be utterly intolerable in a civilized society. Even in the context of the present case, that the home was appellant’s parent’s home, appellee’s alleged conduct does not rise to the necessary level of extremeness and outrageousness to state a claim for intentional infliction of emotional distress.

Finally, appellant claims that the trial judge erred in granting summary judgment on this second count because genuine issues of material fact exist concerning whether appellee actually committed the conduct giving rise to the claim. Appellee admits the conduct occurred, while disputing its frequency. Even if there is a dispute over the frequency of the conduct, it is not a material dispute. If all of appellant’s allegations are taken as true, she does not state a claim for intentional infliction of emotional distress. Any unresolved factual issues are therefore irrelevant, and the trial judge did not err in granting the motion for summary judgment on this count.

Affirmed.


author: Steele Hays, Justice.

text:
    Timothy OLIVER v. STATE of Arkansas
    92-1071
    851 S.W.2d 415
    Supreme Court of Arkansas
    Opinion delivered April 5, 1993

      Reece Law Firm, by: Dana A. Reece, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This is an appeal from the denial of a motion to transfer a capital murder case to juvenile court. We find no merit to the appeal.

On March 27,1992, appellant Timothy Oliver, aged fifteen, was arrested and charged with two counts of capital murder, along with three others, all codefendants. The charges arose from the brutal slaying of the parents of one of the codefendants in which all four youths participated. The couple was found dead in the bedroom of their DeQueen home on March 24 after reports that neither had been seen for several days. The police went to the couple’s home and found them slain in their bed, both victims of bludgeoning and multiple stab wounds.

The son of the couple gave a confession of his involvement on March 25, 1992, and implicated his three friends, including Oliver. Oliver was interviewed on March 26 and gave a confession which detailed his involvement in the murders. Oliver’s account of the murders included the following excerpt:

Sometime back, Mike Friend talked to me, George Rhoades and Rickey Dawson about wanting to kill his Dad. Mike has talked to all of us at different times about how to kill his stepfather. We have talked about using poison and shooting him.
Friday night, March 20, 1992, we were at George’s house talking about going to DeQueen Saturday night. Saturday afternoon we were at George’s house. We talked about how we were going to kill him and what everyone was going to use.
I decided I would use the ball bat, George would use some type of two-bladed knife, sharp on both sides. Rickey was going to use a large stick about the length of a baseball bat and Mike was going to use an aluminum sword or practice sword. It was only sharp on the end.
We all loaded up in George’s truck and went to DeQueen. We hadn’t been smoking or using any drugs or drinking. We got to DeQueen and me and George got out at the skating rink. Mike and Rickey were in the truck riding around. Around 11:00 p.m. Mike and Rickey picked me and George up. We all went to the Pizza Hut and had a pizza. After we left the Pizza Hut we went straight to Mike’s house.
On the way out there Mike told everyone what he wanted them to do. Mike had already told us in Hot Springs that his Father had $3000 in his billfold and he would split the money with us to help kill his Dad.
Mike told us he would go into the house first because he knew his Dad had a gun under the mattress and he would keep him from getting it.
Mike went in the house first, then George, then me and Rickey last. Mike went to his Father’s side of the bed, I was behind Mike. George was at the end of the bed by the Mother’s side and Rickey was at the end of the bed. Rickey turned the light on and Mike started stabbing his Dad with the sword as fast as he could. The end of the sword bent. His Dad raised up and I hit him in the left side of the head above his eye. Mike took the bat from me and hit his Dad in the head. I got the bat back and hit him in the head three more times while his head was laying on the nightstand. Rickey took the bat from me and hit the lady with it. She was face down when Rickey hit her. George hit the man in the head with the bat also before Rickey took the bat. I saw Rickey hit the lady twice with the bat. I guess George cut her throat because he had talked about it before we got to the house and he had the razor-blade or whatever it was.

As a fifteen-year-old charged with capital murder, it was at the prosecutor’s discretion whether to charge Oliver as a juvenile or an adult, Ark. Code Ann. § 9-27-319(b) (1987). In this case Oliver was charged as an adult, and Oliver then moved to transfer the case to juvenile court under Ark. Code Ann. § 9-27-318(d) (1987). A hearing on the transfer was held on May 20, 1992, and Oliver’s motion was denied. He brings this interlocutory appeal under the authority of § 9-27-318(h).

Oliver does not dispute the trial court’s refusal to transfer. Rather, he argues the trial court erred in denying a motion for a continuance he had made prior to and again at the hearing to obtain psychological testing. He insists that because the court failed to grant the continuance he was prevented from presenting evidence of rehabilitation potential and character traits that the court may consider in a transfer hearing under § 9-27-318.

We first note that the request below was not for a continuance for general psychological testing, as appellant argues on appeal, but for a continuance to raise funds from appellant’s family for a private psychologist to administer intelligence and achievement tests.

On April 30, 1992, Oliver filed a motion for state funds to pay for a psychologist for the purpose of “assistance of a psychologist to perform IQ testing and other achievement tests.” On May 14, 1992, Oliver filed a second motion in regards to the upcoming May 20th transfer hearing, requesting a continuance because “additional time is needed for a psychological evaluation of defendant prior to said hearing.” Neither of the motions was ruled on prior to the May 20th hearing.

At the May 20th hearing appellant addressed both motions and in the first, stated:

Ms. Jones: Your honor, on behalf of Mr. Oliver, I have filed a motion for assistance of an expert. Your Honor, we are requesting funds, since this defendant is indigent, to be able to hire a psychologist to do IQ testing and perform other achievement tests of Mr. Oliver. [Our emphasis.]

The Court responded:

... As far as a psychologist, if they want to be examined we’ll send them to the state psychologist at the state hospital if you want to make a motion to have them examined by the psychologist.
Ms. Jones: Then at this time, your honor, are you denying my—
Court: Yes.
Ms. Jones: —request for a private psychologist?
Court: I am.
Ms. Jones: Your Honor, then I have also filed a motion for a continuance asking for additional time to gather to visit with Jr. Oliver’s family to see if funds could be raised with the family to get a psychological examination from a private psychologist and we would like to have that information, your honor, before we proceed with the motion to transfer hearing that is scheduled today. [Our emphasis.]
Court: I’m going to deny that motion, too.

From that context of the hearing it appears the request for the psychologist was not for the purpose of testing for character traits and rehabilitation potential but for testing appellant’s intelligence through IQ and achievement tests. It was also evident that the continuance was not for the psychological testing itself, but for time to raise money from appellant’s family for private testing.

An appellant may not change the basis for his argument or raise a new argument on appeal, but is limited to what was requested in the trial court. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). The issue on appeal then is whether the trial court erred in denying a continuance to allow appellant time to raise money from his family for the purpose of hiring a private psychologist to administer IQ and achievement tests.

The burden is on the movant to show good cause for a continuance. Arkansas R. Crim. P. 27.3. A motion for continuance is addressed to the sound discretion of the trial court and the court’s discretion will not be reversed absent a clear abuse of the discretion. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). The burden of proving prejudice and an abuse of discretion rests on the appellant. Kelly v. State, 261 Ark. 31, 545 S.W.2d 919 (1977); David v. State, supra.

The court considers several factors in considering whether a continuance should be granted, including: 1) diligence of the movant; 2) probable effect of the testimony; 3) relevance of the testimony; and 4) the likelihood of procuring the evidence or witness sought. Touvell v. State, 299 Ark. 375, 772 S.W.2d 347 (1989). We have not given equal weight to these factors, but have considered them in the context of the facts of each case. See e.g. Touvell v. State, supra; Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987).

This case is similar to Touvell v. State, supra, where we found the factors weighing most heavily were the relevance of the evidence and the probable effect of the testimony. As in Touvell, there was other evidence here that made the information appellant was seeking by way of continuance merely cumulative. There was evidence of appellant’s general intelligence level and achievement levels through the testimony of his school counselor and the school’s records of appellant’s grades and standardized testing over the last three years. We believe these tests were sufficient to apprise the court of appellant’s intellectual and scholastic abilities for purposes of the transfer issue. Appellant has not shown how greater development of this sub-issue would have been helpful to the judge. Further, appellant did not apprise the court of the likelihood of securing funds from appellant’s family nor how long such a project might take. There was no showing that it could have been accomplished speedily while this capital murder trial remained pending.

In light of the fact that the court offered testing through the state hospital, which appellant has not argued would be inferior to private testing, there has been no showing of an abuse of discretion by the trial court nor any prejudice resulting from the denial of a continuance.

Finally, we note trial court’s offer to appellant at the close of the hearing:

Court: I’ll leave the record open in this case until you file your notice of appeal... to allow you any additional testimony, but I’m make the ruling today, denying your motion to transfer, but I’ll leave the record open until you file your notice of appeal. . . which I guess would be thirty days. I don’t know. If you have any additional evidence to submit between now and the time your notice of appeal is filed, I’ll give you a speedy hearing in whatever county I happen to be holding court in.

The court in effect gave appellant additional time and there is nothing in the record to show this was utilized.

Affirmed.


text:
    STATE of Arkansas v. INDEPENDENCE COUNTY, Blair Arnold and Tom Allen
    92-1298
    850 S.W.2d 842
    Supreme Court of Arkansas
    Opinion delivered April 5, 1993

      Winston Bryant, Att’y Gen., by: Kyle Wilson, Asst. Att’y Gen., and Patricia Van Ausdall, Asst. Att’y Gen., for appellant.

      Tom Allen, pro se.

      Blair Arnold, pro se.

      Duncan & Rainwater, by: Michael R. Rainwater, for appellee Independence County.

      W. W. Elrod and Jeff Rosenzweig, for amicus curiae Arkansas Bar Ass’n and Arkansas Trial Laywers Ass’n.
   Steele Hays, Justice.

In the aftermath of Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), attorneys Blair Arnold and Tom Allen petitioned the Circuit Court of Independence County for fees and expenses incurred in the defense of Susan Jernigan. Arnold and Allen had been appointed over their objection to represent Mrs. Jernigan in connection with a capital felony murder charge involving the death of her husband. In the course of that representation Arnold and Allen declined to proceed further, maintaining that they could not render effective assistance because of the limitation on out-of-pocket expenses and fees mandated under Ark. Code Ann. § 16-92-108 (1987). They were found to be in contempt. They appealed to this court, challenging the constitutionality of § 16-92-108 and in a landmark decision this court struck down the cap on fees and expenses as applied in that case. See Arnold v. Kemp, supra.

On remand, the Independence Circuit Court conducted a hearing and determined that Arnold was entitled to $31,437.32 and Allen $42,143.67. The trial court ruled Independence County was primarily responsible for payment but the state was liable for reimbursement for all sums in excess of $7,798, as provided in Ark. Code Ann. § 16-91-109 (1987). The trial court rejected the argument of the state that it should have no liability to the county because of an exemption in Ark. Code Ann. § 14-20-102 (Supp. 1991). The state has appealed and Arnold and Allen have cross appealed. The Arkansas Bar Association and the Arkansas Trial Lawyers Association have filed a brief amici curiae in support of the cross appeal. For reasons to be discussed, we affirm the order on direct appeal as well as on cross appeal.

Direct Appeal

The state’s single point of error is that the trial court erred by interpreting Ark. Code Ann. § 14-20-102 (Supp. 1991) as having no effect upon the liability of the state for the payment of fees to attorneys to represent indigent defendants in criminal cases.

Section 14-20-102 authorizes any county to create a fund for the defense of indigent persons and to levy fees and make appropriations as needed for that purpose. Because Independence County established an indigent defense fund, the state contends it is not responsible for payment of any of the fees and expenses allowed by the trial court in this case, relying on subdivision (c) of § 14-20-102, which reads:

(c) The provisions of § 16-92-108 and other laws relating to the amount of attorney fees and costs that may be paid in the defense of indigents charged with criminal offenses and in the defense of persons against whom involuntary commitment proceedings are sought for insanity or alcoholism shall not be applicable in any county in which the quorum court establishes a fund under this section and levies additional costs or fees to finance such fund.

The circuit court, however, interpreted § 14-20-102(c) as previously allowing a county which had enacted an indigent defense fund to disregard the existing fee-cap and pay a public defender a larger fee, prompting the county to appoint a public defender, and presumably, encouraging attorneys to accept such positions. The state insists that interpretation is too narrow, that a reading of the full statute makes clear that regardless of whether a public defender has been established, an indigent defense fund may be used in any county to pay the fees of court appointed counsel.

We need not address the state’s argument, other than to point out that the answer was provided in State v. Post, 311 Ark. 510, 845 S.W.2d 487 (1993), a plurality opinion delivered after the state’s brief was filed in this case. In Post, Ark. Code Ann. § 16-92-108 (1987) was held to be invalid with the following commentary:

This leaves us with no provisions requiring the county to pay defense attorney fees of counsel appointed to defend indigent defendants. . . . Payment of fees to attorneys representing indigents is a responsibility of the state which the legislature had delegated to the counties by statute. Since there is no statute delegating this duty to Independence County, the state is responsible for payment of [defense counsel’s] fees and expenses.

Post at 520-521.

While that holding emanated from a sharply divided court, it nonetheless resolves the issue now raised and requires that we affirm the trial court.

Cross Appeal

By cross appeal Arnold and Allen contend that the amounts awarded for their services to Susan Jernigan were erroneous under the facts of this case and laws of this state. They urge that the trial court erred by considering a lawyer’s obligation to provide pro bono services as a factor in setting the fees. The brief of the amici curiae advances the argument that the proper measure of compensation for attorneys ordered by the courts to represent indigent defendants is the fair market value of their services. The amici brief urges that “just compensation” means “full compensation.” Arkansas State Highway Commission v. Stupenti, 222 Ark. 9, 257 S.W.2d 37 (1953).

The record reflects that in the representation of Mrs. Jernigan, Allen expended 850 hours and Arnold 616.25. Allen’s annual gross receipts for the year 1991 were $63,000 less than the average for the three previous years and Arnold’s $52,000 less than the average for the two previous years. Allen customarily charges an hourly fee ranging between $75 and $100 per hour. After hearing testimony from Allen and Arnold describing the impact of the Jernigan matter on their practice, the trial court heard testimony from several attorneys with a wide range of experience in criminal cases. William R. Wilson, Jr. testified he would not have taken the Jernigan case on an hourly rate, he would have charged a fee of $80,000. Bill W. Bristow testified that if he were taking the Jernigan case on a flat fee basis and the person had very little money he would want a $30,000 fee and $10,000 to $15,000 to hire experts and would bill more if the hours exceeded a certain amount. Phillip Farris testified he would not consider taking Mrs. Jernigan’s case for less than $25,000 attorney’s fee and $7,500 for experts, with another $10,000 if the case went to trial, explaining that he would charge a fee of $25,000 if the case were plea bargained and $35,000 if the case were tried. Roy Thomas testified concerning his experience in several criminal cases, that he spent a minimum of 300 to 400 hours preparing for trial in a capital murder case in Stone County at a probable cost of $25,000 based on overhead and lost income. He estimated “$2,000 to $3,000 of time invested in them even if they don’t go to trial.”

Gary Vinson testified he would want a fee of $25,000, conservatively, to defend Mrs. Jernigan, which was low because of her lack of funds, plus $5,000 to $10,000 for experts. John Norman Harkey said $10,000 to $15,000 would be required for experts and investigators and to properly prepare the Jernigan case for trial would require 400 plus hours. He would charge a flat fee of $35,000 to defend the Jernigan case.

In making the allowances of $31,437.32 to Arnold and $42,143.67 to Allen, the trial court considered the following factors: the reputation of Messrs. Arnold and Allen in the community, their known abilities, the local fee rate of “roughly” $ 100 per hour, what the initial charge might be for representation in a similar case, that the amount awarded would not fully compensate them, that it would be difficult, if not impossible, to determine what part of the investment in time was attributable to the defense of Mrs. Jernigan and what part was attributable to bringing to a head the issue of attorney fees for indigents and pioneering the way for other lawyers in the state; that lawyers within a community do have a certain amount of responsibility to the community and their profession to provide pro bono services.

We regard all those factors, and others that will doubtless emerge with time, as pertinent and material constructs in the determination of an appropriate fee for court appointed counsel. Others that come to mind include whether the lawyer’s efforts are essential and necessary to the defense. Time spent on theories that are unfounded in fact or law, or those which have been repeatedly rejected by appellate courts, are presumptively noncompensable, absent special circumstances. We recognize at the same time that our system abets claims of ineffective assistance against even the most conscientious practitioner so that counsel are constrained to develop a record with one eye on self defense and the other on client defense.

Appellees and amici point to language in the Arnold majority opinion that the time and services of an attorney are property within Fifth Amendment protection, the taking of which is subject to just compensation. Certainly, the rationale of the majority opinion was clearly based on Due Process and Equal Protection foundations, but nothing in the opinion suggests that Arnold v. Kemp intended to substitute one extreme for another, that is, a statutory system that effectively confiscated a lawyer’s time and talent for a token consideration in exchange for one in which lawyers are compensated at a level commensurate with the prevailing charges to private clients. Indeed, the majority opinion in Arnold makes that explicit:

In awarding fees to Messrs. Arnold and Allen for reasonably expended services, we do not mean that the trial court must simply award fees based on their customary hourly charges or fixed fees for services in criminal cases of this nature. To the contrary, the trial court should determine fees that are considered “just.” In Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W. 2d 717 (1990), we recognized various factors to be considered by a trial court in making its decision, on an award of attorneys’ fees, including the experience and ability of the attorney, the time and labor required to perform the legal service properly, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, the time limitations imposed upon the client’s defense or by the circumstances, and the likelihood, if apparent to the court, that the acceptance of the particular employment will preclude other employment by the lawyer. [Our emphasis.]

Arnold, supra at 304-305.

The criteria mentioned in Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990), are familiar components for fee setting which the Arnold majority labelled “instructive” and to be “conservatively applied.” (Our emphasis.) In addition to those mentioned, Chrisco recognized that there is no fixed formula for computing attorney’s fees and deferred to the superior perspective of the trial judge to weigh and apply those factors based on an intimate familiarity with the proceedings and with the quality of the services rendered, concluding that the discretion of the trial judge is not to be disturbed on appeal in the absence of abuse. Of course, Chrisco is a civil case involving a breach of contract between private litigants. Since indigency was not involved, there was no occasion to include pro bono consideration.

Nor does the majority opinion in Arnold touch on pro bono concerns. However, a review of recent cases from other jurisdictions provides a ready answer. One of the leading cases in this area is State ex rel. Stephan v. Smith, 747 P.2d 816 (Kan. 1987), to which the Arnold majority attached primary significance. The Kansas Supreme Court found their statutory scheme for indigent compensation wanting in constitutionality, at the same time pointing out that the bar has an ethical obligation to provide legal services to the indigent accused which may justify paying attorneys a reduced fee for legal services to the poor, less than the fee an attorney might charge a financially solvent client for the. same service, though not less than the lawyers average expenses statewide. The court remarked that requiring attorneys to donate a reasonable amount of time to indigent defense work bears a real and substantial relation to the legitimate government objective sought—protection of indigent defendant’s Sixth Amendment right to counsel, that while the state has an obligation to fairly compensate lawyers for indigent defense, it need not be at the top rate an attorney might charge, but at a rate which is not confiscatory, considering overhead and expenses.

In Jewell v. Maynard, 383 S.E.2d 536 (W.Va. 1989), the West Virginia Supreme Court examined indigent defense, declining to follow Alaska [See DeLisio v. Alaska Superior Court, 740 P.2d 437 (Ala. 1987)] by requiring court appointed lawyers to be paid fair market rates, but finding it “constitutionally unacceptable to place the entire burden of court-appointed work on a few randomly selected members of the private bar.” The West Virginia court chose, like Kansas, to strike a balance that is not confiscatory, considering overhead and expenses, “yet does not cause lawyers to start their meters running like taxi drivers . . . .” Id., p. 546. In Kovarik v. County of Banner, 224 N.W.2d 761 (Neb. 1975) the Nebraska Supreme Court ruled that expenses and compensation in indigent cases must be “reasonable” and in State ex rel. Wolff v. Ruddy, 617 S.W.2d 64 (Mo. 1981), the Missouri Supreme Court opted for “fair compensation.” Not even federal courts, with access to resources far superior to anything available to most state courts, attempt to fully compensate lawyers for indigent representation. See 18 U.S.C.A. § 3006 A (Supp. 1991). The Supreme Court of New Hampshire said it well, if simply, in State v. Robinson, 465 A.2d 1214 (N.H. 1983):

A fee for the defense of an indigent criminal defendant need not be equal to that which an attorney would expect to receive from a paying client, but should strike a balance between conflicting interests which include the ethical obligation of a lawyer to make legal representation available, and the increasing burden on the legal profession to provide counsel to indigents. [Citations omitted.]

465 A.2d at 1216.

Guided by these principles, we cannot say that the trial court’s discretion was abused in this matter. It clearly gave careful reflection to the allowances and outlined the reasons. The amounts approximated $40 - $45 per hour and while that was roughly half of the amounts requested, it was not significantly counter to the bulk of the expert testimony. Assuming, we think correctly, that the amounts testified to by the expert witnesses contemplated a trial, the trial court could have considered a fee in the range of $30,000 or $35,000 on the one hand to $80,000 on the other. He in fact awarded a fee of around $70,000 for a case that was dismissed after Ms. Jernigan’s custodial statement was suppressed, for which cross-appellants can rightfully claim full credit.

In sum, we are not persuaded that the allowances fixed by the trial court were either confiscatory or unreasonable and that being so, no abuse of discretion occurred. The order is affirmed.


author: David Newbern, Justice.

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. STATE of Arkansas
    92-917
    850 S.W.2d 847
    Supreme Court of Arkansas
    Opinion delivered April 5, 1993

      Breck G. Hopkins, for appellant.

      Leon N. Jamison, Deputy Prosecuting Att’y, for appellee.
   David Newbern, Justice.

This appeal is from five instances in which a Chancery Court, Juvenile Division, held the Arkansas Department of Human Services (DHS) liable for court costs, probation fees, and restitution to victims as a delinquent juvenile’s custodian pursuant to Ark. Code Ann. § 9-27-330(5) & (6) (Supp. 1991). The cases have been consolidated on appeal because all involve that issue. DHS argues it is not a “custodian” of juveniles in its care as that term is used in the Statute and, even if it is a custodian, sovereign immunity protects it against assessment of the costs and restitution awards in actions it does not initiate. We hold DHS is a “custodian” as that term is used in the Statute, but the doctrine of sovereign immunity precludes the assessment of costs and restitution against DHS in the circumstances presented.

In the first of the cases a juvenile was committed to the Youth Services Center in 1989,' 1990, and 1991 for several delinquent acts. When the juvenile’s parents filed a petition to terminate their parental rights, DHS sought emergency custody. DHS was given custody on August 27,1991, and the juvenile was placed in the foster care system.

In December of 1991, the State filed a delinquency petition alleging the juvenile stole several items from her foster mother. The juvenile was again found delinquent and committed to the Youth Services Center. The Juvenile Court required DHS, as the juvenile’s custodian, to pay $35 in court costs and $500 in restitution to the victim.

In the second case, DHS filed a petition seeking emergency custody of a dependent-neglected juvenile in July of 1989 which the Court granted. In May of 1991, DHS filed a petition to terminate parental rights. The Juvenile Court granted the petition and gave DHS the authority to consent to the juvenile’s adoption without the necessity of parental notification. The juvenile was continued in DHS’s custody.

In October of 1991, a delinquency petition was filed against the juvenile for a theft offense. The juvenile was found delinquent and placed on indefinite probation. The Juvenile Court assessed $35 in court costs and a $20 monthly probation fee against DHS in connection with the delinquency proceedings.

In a third case, a juvenile was placed in the Youth Services Center in 1989 for several felonies and misdemeanors. Upon release, the Juvenile Court ordered DHS to open a protective services case on the juvenile and his family. In September of 1990, the juvenile was again committed to the Center, and DHS was awarded custody upon his release. After leaving the Center and while in DHS’s custody, the juvenile perpetrated several delinquent acts causing him to be placed in the Center again. The Juvenile Court required DHS to pay $530.02 in restitution to the victim.

In the fourth case before us, DHS was ordered to open a protective services case on a juvenile and his family in 1989. In April of 1990, the juvenile was committed to the Youth Services Center for several delinquent acts, and upon release, custody was awarded to DHS. In November of 1991, the juvenile was again adjudged delinquent for theft by receiving and assault in the first degree. The Juvenile Court required DHS to pay $1226 in restitution to the victims of the offenses.

The fifth case before us is slightly different only because the juvenile was found to be delinquent for committing an offense while in custody of the Youth Services Center. The Juvenile Court required DHS to pay $2000 in restitution to the victim and $35 in court costs. The Juvenile Court found no difference between a delinquent act committed while in DHS custody and a delinquent act committed while in the custody of the Center which is established under the Youth Services Board. Ark. Code Ann. § 9-28-204 (1987).

DHS moved to vacate the orders imposing court costs, probation fees, and restitution in each of the five cases. DHS argued the Juvenile Court was without subject matter jurisdiction to impose awards in violation of sovereign immunity, contending exclusive jurisdiction over these claims was vested in the Arkansas Claims Commission. The motions were denied.

The Trial Court first determined that the definition of “custodian” in Ark. Code Ann. § 9-27-303(9) (1987) is clear and unambiguous and included DHS. As DHS was a custodian under the clear definition of that term, subsections (5) and (6) of § 9-27-330 apply to it. With respect to the sovereign immunity issue, the Court first held the payment of costs, fees, and restitution in delinquency proceedings was not a “claim” against the State in the traditional sense of the words thus sovereign immunity did not apply. Second, the Court held DHS voluntarily waived its immunity by entering its appearance in the dependency-neglect proceedings and becoming a custodian and a defendant in the delinquency proceedings.

1. Statutory interpretation

The Juvenile Code provides that when a juvenile is adjudged delinquent the court may, among other things: (1) assess a court cost of no more than thirty-five dollars to be paid by the juvenile or his parent, guardian, or custodian; (2) order restitution to be paid by the juvenile or his parent, guardian, or custodian; or (3) order a fine of not more than five hundred dollars to be paid by the juvenile or his parent, guardian, or custodian. Ark. Code Ann. § 9-27-330(5) & (6) & (7) (Supp. 1991). Restitution may only be ordered if the loss caused by the juvenile is proven by a preponderance of the evidence, and the amount may not exceed two thousand dollars. Ark. Code Ann. § 9-27-331(d) (Supp. 1991).

The Code defines “custodian” in part as “a person, agency or institution to whom a court of competent jurisdiction has given custody of a juvenile by court order.” § 9-27-303(9) (emphasis added). In view of the clarity of this provision we need not discuss all of DHS’s arguments on this point. DHS is an agency which has been given custody of the four juveniles discussed in the first four cases recited above, thus it is a custodian for purposes of the provisions assessing costs and restitution. When the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. See, e.g., Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979); Southern Surety Company v. Dardanelle Road Imp. Dist. No. 1, 169 Ark. 755, 276 S.W.2d 714 (1925).

It was clearly wrong for the Trial Court to assess a probation fee against DHS. Section 9-27-330 does not authorize the assessment of a probation fee against a custodian. A juvenile court’s authority to assess a probation fee is based upon Ark. Code Ann. § 16-13-326(a) (Supp. 1991). This Statute is silent on assessing a probation fee against a custodian.

2. Sovereign immunity

The Statute authorizes the Court to order a custodian such as DHS to pay costs and restitution. The fundamental question is whether that violates the sovereign immunity provision in Ark. Const, art. 5, § 20: “The State of Arkansas shall never be made defendant in any of her courts.” To answer this question, we must first decide whether the Trial Court’s orders constitute a claim or claims against the State. Second, we must determine whether DHS has waived its immunity by entering an appearance.

a. Claim against the State

The Trial Court ruled as follows on the issue of whether there was a claim against the State:

It is not a lawsuit against the State in the traditional sense of the word. The State, by assuming custody of the juvenile, thereby becomes responsible for the actions of the juvenile and must provide for the well-being and care of that juvenile. When that juvenile is hailed into Court they must appear as the responsible parents, they must partake in the intake process, appear in Court and abide by the Court’s decision as parents normally would.

In Commission on Judicial Discipline & Disability v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990), Gannett Publishing Company brought a declaratory judgment action seeking to require the Judicial Discipline and Disability Commission to release information from its files to the public. Gannett sought costs and expenses. The Commission argued the Circuit Court was, on the basis of sovereign immunity, without jurisdiction to hear the action. We held the declaratory judgment action could proceed only to the extent the State would incur no financial liability. We granted prohibition to prevent the exercise of jurisdiction with respect to costs and expenses against the State.

In Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986), Beaulieu sued administrators and engineers of the Arkansas Highway and Transportation Department for injuries sustained in a car accident. We held sovereign immunity prevented what was, in reality, a suit against the State and stated:

Accordingly, it is well settled, as a general proposition, that, where a suit is brought against an officer or agency with relation to some matter in which the defendant represents the state in action and liability, and the state, while not a party to the record, is the real party against which relief is sought so that a judgment for plaintiff, although nominally against the named defendant as an individual or entity distinct from the state, will operate to control the action of the state or subject it to liability, the suit is in effect one against the state and cannot be maintained without its consent.

citing Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938). Because the State would be required to pay any judgment, sovereign immunity prevented the claim.

Most cases which address sovereign immunity involve some type of lawsuit being filed against a state agency or officer. See, e.g., Department of Human Services v. Crunkleton, 303 Ark. 21, 701 S.W.2d 704 (1990); Arkansas State Highway Comm. v. Lasley, 239 Ark. 538, 390 S.W.2d 443 (1965); Roesler v. Denton, 239 Ark. 462, 390 S.W.2d 98 (1965). In this case, no one has filed a lawsuit against DHS seeking costs and restitution. Instead, the Court has imposed, under statutory authority, costs and restitutionary awards against a state agency in connection with delinquency proceedings when the agency acts as a custodian of a juvenile.

While no suit, in the traditional sense, has been brought against the State, the State will no doubt have been coerced to bear the financial obligation to pay costs and restitution if the orders are upheld. Any suit, whether in law or equity, which has for its purpose and effect, directly or indirectly, coercing the State, is one against the State. Watson v. Dodge, 187 Ark. 1055, 63 S.W.2d 993 (1933).

We recognize there is authority for the proposition that a court may impose fines against DHS for contempt. For example, in Arkansas Department of Human Services v. Clark, 305 Ark. 561, 810 S.W.2d 331 (1991), the Juvenile Court assessed a $250 contempt fine when DHS failed to comply with a court order. See also Arkansas Department of Human Services v. Gruber, 39 Ark. App. 112, 839 S.W.2d 543 (1992) (court assessed a $150 fine when DHS representative failed to appear at scheduled hearing).

No doubt a fine assessed against DHS is coercive of the State. DHS attempts to distinguish the Clark case by arguing that the Trial Court there clearly had the authority to issue the orders found to have been violated by DHS employees. That misses the point because the order to which the sovereign immunity issue was relevant was the order requiring DHS to pay a fine rather than the orders DHS agents violated which resulted in the fine.

Criminal contempt cases constitute an exception to the sovereign immunity doctrine. The power to punish for contempt is an inherent power of the court. Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991). While we agree the State cannot be coerced as the result of a judgment in favor of a litigant, we recognize that a court must have the authority to control the parties and other persons before it. A state agent or agency having full knowledge of a court order and its import cannot disregard it and claim entitlement to sovereign immunity in response to a contempt citation. See Cammack v. Chalmers, 284 Ark. 161, 680 S. W.2d 689 (1984), as well as other cases cited in Commission on Judicial Discipline and Disability v. Digby, supra, in which we held an agent of the State is subject to being enjoined for an illegal, unconstitutional, or ultra vires act.

b. Waiver of immunity

The second issue is whether DHS has waived sovereign immunity by obtaining custody of each juvenile and appearing in the delinquency proceedings. The Juvenile Court ruled these actions constituted a waiver by appearance.

The leading case on this issue is Arkansas Game & Fish Comm’n v. Lindsey, 299 Ark. 249, 771 S.W.2d 769 (1989). There, the County Court granted Lindsey a right of access across lands owned by the Game & Fish Commission. The Commission argued sovereign immunity prohibited the action against a state agency. We disagreed, stating the Commission waived sovereign immunity by voluntarily entering its appearance and seeking affirmative relief. We noted the Commission was under no obligation to appear and defend, but upon voluntarily doing so, it submitted to judgment. When the State is the moving party seeking affirmative relief, it is prohibited from raising sovereign immunity as a defense. Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771 (1990).

In none of the proceedings now before us was DHS the initial moving party. Its appearances subsequent to the complaints being filed against the juveniles was pursuant to DHS’s obligation to obtain custody of the juveniles in the dependency-neglect proceedings and appear in the delinquency proceedings. The Juvenile Court recognized this by stating, “In order for them [DHS] to carry out their assigned responsibilities they must initiate Petitions in Juvenile Court and thus voluntarily subject themselves to the jurisdiction of that Court.” Unlike the Commission in the Lindsey case, DHS was under an obligation to appear. It thus did not voluntarily waive sovereign immunity.

Reversed and remanded.