author: DONALD L. Corbin, Justice. ROBERT L. Brown, Justice, ANNABELLE CLINTON Imber, Justice,

text:
    BURFORD DISTRIBUTING, INC. v. Danny STARR
    99-822
    20 S.W.3d 363
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000

      Don Langston, Judge;

      Eddie N. Christian Law Office, by: Joe D. Byars, Jr., for appellant.

      Sexton & Fields, P.L.L.C., by: Sam Sexton, Jr., for appellee.
   DONALD L. Corbin, Justice.

Appellant Burford Distributing, icappeals e. judgment of the Sebastian County Circuit Court awarding Appellee Danny Starr $40,000 in damages, plus an additional $10,000 in attorney’s fees, for a violation of the Arkansas Prize Promotion Act. As this matter involves an issue of first impression, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1). We agree with Appellant that the Act is not applicable in this case, and thus, reverse the judgment of the trial court.

On August 3, 1996, Burford sponsored the “10th Annual Lite Open” golf tournament at Deer Trails Golf Course in Fort Chaffee, Arkansas. Each participant was required to pay a $40 entry fee. Robert Hornung, an employee of Burford’s, testified that of that $40, $10 went to the Gregory Kistler Center, a local charity; $25 went to Deer Trails; and, $5 went to Burford to off-set the expense of the tournament. Burford did not make a profit as a result of sponsoring the golf tournament. To promote the event, Burford created and distributed flyers advertising the date and location of the golf tournament. Burford also advertised the fact that it would be awarding a car to the first person to score a hole-in-one on August 3.

Mr. Starr paid his entry fee approximately one week prior to the tournament. He learned of the tournament through an acquaintance, but had also played in the tournament in previous years. Mr. Starr testified that he did not know about the car giveaway at the time he paid his entry fee. Mr. Starr stated that he received a packet upon arriving at the tournament that contained a flyer advertising the hole-in-one contest. He also admitted, however, that he saw a large banner on Hole No. 17 that stated that the first person to make a hole-in-one on that hole would win a 1996 Buick Regal from Harry Robinson Pontiac.

This tournamentwas an eighteen-hole competition, but Deer Trails was only a nine hole golf course. Each of the nine holes has two separate tee areas in order to accommodate eighteen holes of golf. The holes numbered 8 and 17 shared the same green, but the tee box for Hole No. 17 was located farther away from the hole than the tee box for Hole No. 8. Mr. Starr scored a hole-in-one on Hole No. 8, but later demanded the car, arguing that the flyer simply promised a car to the first player to score a hole-in-one.

After Burford refused to award Mr. Starr the Buick Regal, he filed suit in circuit court alleging breach of contract and violation of the Arkansas Prize Promotion Act, codified at Ark. Code Ann. §§ 4-102-101 — 109 (Repl. 1996). Mr. Starr ultimately dismissed the breach of contract claim, but a jury trial was held on the issue of whether Burford violated the Act. The jury found that Burford had intentionally violated the Act and awarded Mr. Starr $40,000 in pecuniary loss, an amount equal to twice the retail value of the Buick Regal. In addition, the trial court awarded Mr. Starr an additional $10,000 in attorney’s fees. This appeal followed.

As one of its points on appeal, Burford contends that the trial court erred in denying its motion for directed verdict on the grounds that the Act does not apply under the facts and circumstances of this case. Mr. Starr responds that the Act is remedial in nature and should be liberally construed. This court has repeatedly held that the basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Nelson v. Timberline Int’l, Inc., 332 Ark. 165, 964 S.W.2d 357 (1998); Graham v. Forrest City Housing Auth., 304 Ark. 632, 803 S.W.2d 923 (1991). In attempting to ascertain legislative intent, this court will look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, legislative history, and other appropriate matters that shed light on the matter. Nelson, 332 Ark. 165, 964 S.W.2d 357; Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997).

It is not difficult to ascertain the legislative intent of this Act because it is set out in section 4-102-101. A review of this section indicates that the legislature did not intend for the provisions of this Act to extend to the circumstances presented by this case. Section 4-102-101 states:

(a) The Arkansas General Assembly has become aware of the avalanche of sweepstakes, contests, and prize promotions that have been and are being directed at Arkansas consumers, and recognizes that consumers are often misled by these sweepstakes, contests, and prize promotions. The General Assembly also recognizes that Arkansas consumers have paid hundreds of thousands of dollars to sweepstakes, contests, and prize promoters based upon misrepresentations by those promoters to Arkansas consumers. Many of the sweepstakes, contests, and prize promotions are artfully crafted to lead Arkansas consumers to believe that they have been selected to receive valuable prizes, when such is not the case. The promotions often mislead Arkansas consumers as to the value of the prizes. The promotions often mislead Arkansas consumers as to their chances to receive the prize. The promotions often mislead Arkansas consumers to believe that they must purchase the promoter’s product, or otherwise pay to the promoter sums of money in order to be eligible to receive the prize, or that the likelihood that the prize to be awarded will be increased, or that the consumer’s application for the prize will receive special handling if the consumer purchases the promoter’s product. These sweepstakes, contests, and prize promoters prey particularly upon elderly Arkansas consumers.
.(b) It is the intent of the General Assembly through the enactment of this chapter to require that Arkansas consumers be provided with all relevant information necessary to make an informed decision concerning sweepstakes, contests, and prize promotions. It is also the intent of the General Assembly to prohibit misleading and deceptive prize promotions. This chapter shall be construed liberally in order to achieve this purpose. [Emphasis added.]

Clearly, the General Assembly wanted to put a stop to the deceptive practices of sweepstake companies and other promoters that mail notices to consumers promising them the chance to win valuable prizes.

It is true that pursuant to section 4-102-101, this court must liberally construe the provisions of this subchapter. This requirement of liberal construction does not require, however, that we extend this legislation to situations not envisioned by the General Assembly. We have said before that even when reviewing an act under a liberal construction, this court must still apply its provisions according to their plain meaning. See Stockton v. Sentry Ins., 337 Ark. 507, 989 S.W.2d 914 (1999). We will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. See St. Paul Fire & Marine Ins. Co. v. Griffin Constr. Co., 338 Ark. 289, 993 S.W.2d 485 (1999). The plain meaning of this Act’s provisions is to prevent unfair contest practices by requiring promoters to provide consumers with all necessary information to make informed decisions about these sweepstakes and contests before they agree to purchase the promoter’s products.

Here, Burford did not require participants to purchase its products in order to be eligible for a chance to win the car. Mr. Starr was not required to pay anything other than his entry fee in order to compete for a chance to win the car. Other than the fact that he may have been a better golfer, Mr. Starr had the same chances of winning the automobile as every other player. There was no evidence introduced that Burford ever misled Mr. Starr about his chances of winning the car or that Burford ever indicated that Mr. Starr had won the car. In fact, the hole-in-one competition at issue in this case is a game of skill. It would have been impossible for Burford to provide Mr. Starr or any other participant with information on his chances of winning the car.

We also point out that section 4-102-105 provides further insight into the underlying purpose of this Act. This section sets forth certain practices that a sponsor may not engage in when offering prizes. Some of those prohibited practices include: misleading participants about the source of the prize; representing directly or by implication that the number of persons eligible to win is limited or that a person has been selected to receive a particular prize, unless true; representing that a person has an enhanced likelihood of winning a prize; representing directly or by implication that a person will have an increased chance of receiving a prize by making multiple purchases or donations; representing that a prize notice is urgent; or requesting that a person disclose personal information in connection with a prize promotion. The fact that Burford never engaged in any of these prohibited practices is also important to our determination that the Act is inapplicable in this case. Mr. Starr admitted that he never received any communication from Burford that induced him to participate in the golf tournament. He further admitted that at the time he agreed to participate in the tournament, he had no knowledge of the fact that Burford was offering a car in connection wdth a hole-in-one contest. Thus, Mr. Starr’s payment of the entry fee was in no way connected with the car giveaway. Accordingly, we reverse the trial court’s judgment because the Act is not applicable to this case.

Burford raises several other points on appeal but in light of our holding that the Act is inapplicable, the only other issue we must address involves the award of attorney’s fees. Burford argues that it was error for the trial court to enter an award of $10,000 for attorney’s fees pursuant to section 4-102-103. It is not necessary for us to address Burford’s specific argument on this point. We have previously held that when a judgment in favor of a prevailing party is reversed, the award of attorney’s fees must also be reversed. See Bendinger v. Marshalltown Trowell Co., 338 Ark. 410, 994 S.W.2d 468 (1999); Brookside Village Mobile Homes v. Meyers, 301 Ark. 139, 782 S.W.2d 365 (1990). Accordingly, the award of attorney’s fees in this case is also reversed.

Reversed.

Brown and Imber, JJ, dissent.

ROBERT L. Brown, Justice,

dissenting. I agree with the sticJustice e, on the issue of sponsorship and the liberal construction of the Arkansas Prize Promotion Act. However, I disagree with her analysis of “pecuniary loss” and her conclusion that the trial court erred in not giving the instruction of Burford Distributing. In my opinion, what constituted a pecuniary loss under the Act was for the jury to decide. I would affirm.

ANNABELLE CLINTON Imber, Justice,

dissenting. I cannot agree ice, majority’s holding that the Arkansas Prize Promotion Act is not applicable to this case. The majority ignores part of the language in subsection (b) of Ark. Code Ann. § 4-102-101, where it says: “It is also the intent of the General Assembly to prohibit misleading or deceptive prize promotions. This chapter shall be construed liberallyin order to achieve this purpose.” Ark. Code Ann. § 4-102-101 (b) (emphasis added).

Here, Burford published and distributed a flyer that contained misleading and deceptive information regarding the hole-in-one contest. On the day of the tournament, the participants, including Mr. Starr, checked in at the clubhouse and were given “goodie bags” containing a flyer with the words “first hole-in-one August 3rd wins a car by Harry Robinson Poniac [sic] and also on a separate hole the first hole-in-one wins a $1000.00[.]” According to Mr. Starr, there was a sign in the clubhouse that said first hole-in-one on Hole No. 8 wins a car. However, upon reaching the tee boxes for the seventeenth and eighth holes, Mr. Starr and the other participants saw a banner containing contradictory rules for the contest. It stated that the “first hole-n-one on No. 17 wins this Buick Regal.” A Buick Regal was also parked near the seventeenth tee box.

The General Assembly has expressly stated its intent to prohibit such misleading or deceptive prize promotions, and, in order to achieve that purpose, has directed that the Act be construed liberally. The majority’s holding that the Act is not applicable to Burford’s golf tournament is the product of strict construction and a selective reading of the legislature’s express intent.

Furthermore, Arkansas Code Annotated section 4-102-102(3) defines “sponsor:”

“Sponsor” means a corporation, partnership, limited liability company, sole proprietorship, or natural person that offers a prize to a person in Arkansas in conjunction with the sale or lease of any product or service, or in conjunction with any real or purported contest, competition, sweepstakes, puzzle, drawing, scheme, plan, or other selection process that requires, or creates the reasonable impression of requiring, or allows the person to pay any money as a condition of receiving, or in conjunction with allowing the person to receive, use, compete for, or obtain a prize or information about a prize.

The definition states that a “sponsor” is a corporation (Burford) that offers a prize (the car) to a person in Arkansas (Mr. Starr) in conjunction with any real or purported competition (the golf tournament) that requires or allows the person “to pay any money as a condition of receiving, or in conjunction with allowing the person to receive, use, compete for, or obtain a prize.” Although Mr. Starr paid his entry fee before he knew about the prize, the payment of his entry fee was still a condition of competing for the prize. Several witnesses testified that no one could participate in the tournament without first paying the entry fee of $40 per person or $160 per team. In fact, Mr. Richard Burford, president of Burford Distributing, testified that the participants had to pay money as a condition of being in the golf tournament'. Thus, there was substantial evidence that Burford was a “sponsor.”

Although I disagree with the majority’s reasoning regarding the application of the Arkansas Prize Promotion Act to this case, I nonetheless conclude that the case should be reversed and remanded because the trial court failed to instruct the jury on the meaning of the term “pecuniary loss.” Burford argues that the trial court erred when it refused to instruct the jury on the meaning of “pecuniary loss” as that term is used in the Arkansas Prize Promotion Act. Ark. Code Ann. § 4-102-103(c)(l) (Rep. 1996) provides that:

Any person suffering a pecuniary loss because of an intentional violation of this chapter may bring an action in any court of competent jurisdiction and shall recover:
(A) Costs;
(B) Reasonable attorney’s fees; and
(C) The greater of:
(i) Five hundred dollars ($500); or
(ii) Twice the amount of the pecuniary loss.

Ark. Code Ann. § 4-102-103(a)(l). At the close of the case, the trial court instructed the jury and read the relevant portions of the Act, including Ark. Code Ann. § 4-102-103(c)(l). Burford had previously proposed an additional jury instruction which read as follows: “You are instructed that ‘pecuniary loss’ means the amount of monetary loss (as opposed to the ‘retail value’ of the prize) suffered by Danny Starr, if any, because of any intentional violation of A.C.A. § 4-102-105 or § 4-102-106.” The trial court, however, refused to submit that instruction to the jury, and stated that “it’s a question of fact for the jury as to what damages there will be; whether the retail value will be awarded or not is up to the jury.” Burford alleges that the trial court erred in so ruling. I agree.

The meaning of “pecuniary loss” as used in the Act is at issue here. The basic rule of statutory instruction is to give effect to the intent of the legislature. State v. R & A Investment Co., 336 Ark. 289, 985 S.W.2d 299 (1999). When a statute is clear, we give the statute its plain meaning, and the intent of the legislature is determined from the language used. Id. We are hesitant to interpret a legislative act in a manner contrary to its express language unless it is clear that a drafting error or omission has circumvented legislative intent. Id. In interpreting a statute and attempting to construe legislative intent, we look to the language of the whole act. John B. May Co. v. McCastlain, 244 Ark. 495, 426 S.W.2d 158 (1968). If the language is ambiguous or uncertain, we then look to the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate means that throw light on the subject. Id.; State v. R & A Investment Co., supra. Here, the language of the Act is not ambiguous or uncertain. We can and should determine the intent of the legislature from the plain language of the Act.

Arkansas Code Annotated section 4-102-101 contains legislative findings, declarations, and statements of intent. Subsection (a) of section 4-102-101 states in part that the General Assembly “recognizes that consumers have paid hundreds of thousands of dollars to sweepstakes, contests, and prize promoters based upon misrepresentations by those promoters to Arkansas consumers.” Subsection (a) further states that “[t]he promotions often mislead Arkansas consumers to believe that they must purchase the promoter’s product, or otherwise pay the promoter sums of money in order to be eligible to receive the prize.” Thus, it is clear that the legislature was concerned, at least in part, with the amounts of money that Arkansas consumers have paid out of their pockets for contests and promotions. Also, Ark. Code Ann. § 4-102-102(2) defines the term “retail value” and then, in Ark. Code Ann. § 4-102-107(2), requires sponsors who represent to a contestant that they have won a prize to provide the contestant with at least the “retail value” of the prize. Despite the fact that “retail value” is specifically defined in the Act, that term is not used in Ark. Code Ann. 4-102-103(c)(1), which lists specific categories of relief that are available under the Act. Rather, that section refers to a “pecuniary loss.” Based upon this statutory language, it is evident that the legislature did not intend for “pecuniary loss” and “retail value” to mean the same thing. Instead, “pecuniary loss” refers to money that Arkansas consumers pay to prize promoters and contest sponsors out of their own pockets. This interpretation of “pecuniary loss” is supported by our case law. See Interstate Freeway Serv., Inc. v. Houser, 310 Ark. 302, 835 S.W.2d 872 (1992) (equating the out-of-pocket measure of damages in a fraud case to the pecuniary loss sustained as a result of the fraud). Moreover, the damages provision of Ark. Code Ann. § 4-102-103(c)(l) allows a plaintiff to recover the greater of twice the amount of “pecuniary loss” or $500. Interpreting “pecuniary loss” to mean out-of-pocket loss rather than the retail value of the prize is more consistent with the use of the $500 measure of loss. For these reasons, I believe that the jury instruction proposed by Burford was a correct statement of the law.

While a trial court is not required to give every correct instruction offered when the instructions given explicitly, clearly, fully, and fairly cover the matter requested, the trial court’s refusal to give a proper instruction will result in reversal, unless it affirmatively appears that no prejudice resulted. Benson v. Temple Inland Forest Prods. Corp., 328 Ark. 214, 942 S.W.2d 252 (1997). Here, the instructions did not clearly, fully, and fairly cover the matter because it left the jury with the ability to determine on their own what “pecuniary loss” meant. In doing so, the jury determined Mr. Starr’s pecuniary loss to be $20,000 or the retail value of the car. That determination was contrary to the plain language of the statute and resulted in prejudice to Burford. I must therefore conclude that the trial court’s refusal to properly instruct the jury on the meaning of “pecuniary loss” should result in reversal.

Burford also argues that we should reverse the trial court’s award of attorney’s fees in the amount of $10,000 because the award of $10,000 attorney’s fees is excessive if we interpret “pecuniary loss” to mean out-of-pocket expenses rather than the retail value of the car. Mr. Starr is entitled to recover “costs” and “reasonable attorney’s fees” pursuant to Ark. Code Ann. § 4-102-103(c)(l). Under that same provision, his recovery for pecuniary loss would be limited to $500 based upon the evidence introduced at trial. An award of $10,000 attorney’s fees is clearly excessive when compared to a recovery of $500 for pecuniary loss.

In my view, this matter should be reversed and remanded. I respectfully dissent.

BROWN, J., joins this dissent in part.

       Mr. Starr hit the first and only hole-in-one of the August 3rd tournament, and, according to the flyer distributed before the tournament, he was the winner of the car. However, according to the banner, he was not the winner of the car because he hit the hole-in-one on the eighth hole rather than the seventeenth hole.

       This conclusion is also supported by the language in section 4-102-103(d): “The relief provided in this section is in addition to remedies and penalties otherwise available in regards to the same conduct under law or under other statutes of this state.” (Emphasis added.) The relief available under the Act is in addition to and distinct from the benefit-of-the-bargain damages available in actions for breach of contract or fraud. In this case, Mr. Starr elected to abandon his breach of contract claim.

       Mr. Starr paid $40 to enter the tournament. Twice the amount of his pecuniary loss would be $80.


source: Caselaw Access Project

author: DONALD L. Corbin, Justice. ANNABELLE CLINTON Imber, Justice,

license: Public Domain

text:
    STATE of Arkansas v. Raphel Jerome CHERRY
    CR 99-1382
    20 S.W.3d 354
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000
    [Petition for rehearing denied September 7, 2000. ]

      Marion Humphrey, Judge;

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellant.

      Montgomery, Adams & Wyatt, PLLC, by: Dale E. Adams, for appellee.

       Glaze and Imber, JJ., would grant.

   DONALD L. Corbin, Justice.

The State appeals from the stice. Court’s order denying the State’s motion for reconsideration and granting Appellee Raphel Jerome Cherry a new trial. For reversal, the State argues that the trial court abused its discretion in granting Cherry a new trial. This court has jurisdiction of the present matter pursuant to Ark. Sup. Ct. R. 1-2(a)(2) and (8), as well as Ark. R. App. P. — Crim. 3. We find no merit in the State’s argument, and thus, affirm the decision of the trial court.

The record reflects that Cherry was convicted of first-degree murder following a two-day jury trial and was sentenced to life in prison. Following his conviction and sentencing, Cherry filed a motion for a new trial, pursuant to Ark. Code Ann. § 16-89-130 (Repl. 1987), alleging juror misconduct. The allegations involving jury misconduct were brought to the trial court’s attention by Patrick Hart, an alternate juror. Hárt told the court bailiff that he did not believe that Cherry had received a fair trial. Mr. Hart reported to the bailiff that the jurors had been discussing the case during various breaks in the trial even though the trial court had admonished them not to discuss the case. Mr. Hart also reported that some of the jurors had made up their minds with regard to Cherry’s guilt before the case was submitted to them. The bailiff reported this information to the trial court, who in turn notified counsel.

The State resisted Cherry’s motion for a new trial on the ground that he made no assertion of prejudice. Moreover, the State argued that there was no precedent for granting a new trial resulting from juror misconduct where such conduct was not the result of extraneous prejudicial materials or improper outside influence. The trial court conducted a hearing on September 23, 1999, and each of the twelve jurors, plus Mr. Hart and the bailiff were called to testify. The trial court properly limited the scope of the examination to matters that took place prior to formal deliberations, and did not allow either party to examine the jurors with regard to matters involving the jury’s actual deliberations.

Mr. Hart testified under oath that jurors had repeatedly discussed the case during breaks in the trial. According to Mr. Hart, the first time jurors discussed the case was before the State had rested its case. Mr. Hart also testified that prior to the time that the defense presented its case, jurors discussed the fact that Cherry was probably guilty because of the simple fact that his brother testified against him, even though the judge instructed them that such testimony could not be considered because it was improperly admitted. Seven out of the twelve jurors admitted to either hearing or participating in conversations about the trial prior to the time formal deliberations began. While most of these jurors could not recall specifics about these conversations, they admitted to discussing the facts of the case, as well as the evidence. Some of the jurors also admitted that they overheard discussions regarding Cherry’s guilt or innocence. Each juror denied, however, that any of these conversations had affected their ultimate decision to convict Cherry.

After hearing the testimony and weighing the credibility of the witnesses, the trial court found that Cherry was entitled to a new trial. The trial court found credible Mr. Hart’s testimony that some jurors had made up their minds before formal deliberations had begun. The trial court also noted that it had repeatedly instructed the jury not to discuss the case, but that they did so in contravention of his instructions. The State then filed a motion asking the trial court to reconsider its decision, arguing that Cherry failed to demonstrate that he was prejudiced by the jurors’ misconduct. The State also attempted to attack Mr. Hart’s veracity by submitting affidavits from some of the jurors. These affidavits stated that after Hart testified at the new-trial hearing, he returned to the waiting room and told some of the jurors that he did not tell on anyone and that the judge and bailiff had approached him and started asking questions about the case. The State argued that this inconsistent recitation of the sequence of events proved that Mr. Hart’s testimony was not credible. The trial court denied the motion and this appeal followed.

This court has said that a decision on whether to grant or deny a motion for new trial lies within the sound discretion of the trial court. Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997). We will reverse a trial court’s order granting a motion for a new trial only if there is a manifest abuse of discretion. Id. A trial court’s factual determination on a motion for a new trial will not be reversed unless clearly erroneous. Clayton v. State, 321 Ark. 602, 906 S.W.2d 290 (1995). The State argues as its only point on appeal that the trial court abused its discretion by granting Cherry a new trial. In urging this court to reverse the trial court’s grant of a new trial, the State submits three reasons as to why the trial court’s decision was an abuse of discretion: (1) the grant of new trial was erroneous absent a finding of prejudice; (2) any finding of prejudice based on Mr. Hart’s testimony was erroneous; and (3) a new trial was not warranted. We disagree.

We recognize at the outset that the present appeal is somewhat extraordinary. First of all, this situation is not governed by Ark. R. Evid. 606(b), because the jurors were not questioned about matters involving their formal deliberations. Rather, the hearing focused on discussions that occurred prior to formal deliberations. Thus, the United States Supreme Court’s holding in Tanner v. United States, 483 U.S. 107 (1987), is not controlling. In Tanner, the United States Supreme Court held that it was not error for the district court to refuse to conduct an evidentiary hearing at which jurors would testify about drug and alcohol use during the trial. In so holding, the Court stated that under the federal rules of evidence a verdict may not be impeached by jury testimony on matters involving jury deliberations. Second, the jury misconduct that occurred here did not involve the consideration of extraneous prejudicial information, nor were there any allegations that an improper outside influence affected the jury deliberations. While those are certainly the most common types of jury misconduct, they are not exclusive types of misconduct that warrant relief.

In the present appeal, we are faced with intrajury misconduct that occurred prior to the jury beginning formal deliberations. Seven of the twelve jurors admitted that they either participated in or overheard conversations about the case prior to formal deliberations. Some of those jurors believed that those conversations took place after the defense rested, but others were unable to recall exactly when the conversations occurred. Mr. Hart testified, however, that the discussions took place every time the jurors were left alone together. While most jurors could not recall the specific context of these discussions, a review of the jurors’ testimony reveals the following:

Q Okay. Do you recall what was said?
A Not specific details. I seem to recall that some of the evidence was talked about like the keys, presence of the keys, the glass at the rear door.
Q I want to ask you. Do you think it affected other persons in the jury room as what they talked about?
A Not being the other people, I really don’t know. The only facts that — they just discussed the evidence that was presented and tried to clear up some points about some of that evidence....
Q Okay. So, they expressed their point of view about the case and the facts presented prior to this case being decided?
A Yes, sir.
Q Okay. And you don’t know how that impacted on their decision?
A No, sir, I don’t.
Q And this discussion was about the facts of the case?
A Yes.
Q Okay. And discussion by more than one juror?
A Yes.
Q Several jurors, in fact?
A Yes.
Q Probably what? Eight or ten or so?
A No. I’d say maybe three to five.
Q ... These three to five jurors might have formed an opinion about guilt or innocence, is what you’re saying?
A Yes.

These comments, considered in light of Mr. Hart’s testimony that some jurors had already decided the case, clearly support a finding that there was a reasonable possibility of prejudice that resulted from the premature discussions about the facts, issues, and evidence in the case.

Following allegations of juror misconduct, the moving party bears the burden of proving that a reasonable possibility of prejudice resulted from any such juror misconduct. Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993); Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992). We will not presume prejudice in such situations. Id. The moving party must show that the alleged misconduct prejudiced his chances for a fair trial and that he was unaware of the bias until after the trial. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). Whether unfair prejudice occurred is a matter for the sound discretion of the trial court. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990).

Here, the trial court found Mr. Hart’s testimony that some jurors had prematurely decided the issue of Cherry’s guilt to be credible, and we cannot say this was error, let alone manifest error. This issue turned on the credibility of witnesses, and this court has repeatedly held that the issue of witness credibility is for the trial judge to weigh and assess. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998); Myers v. State, 333 Ark. 706, 972 S.W.2d 227 (1998). Accordingly, this court will defer to the superior position of the trial court to evaluate the credibility of witnesses. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997).

We agree with the State that a defendant is entitled to a fair trial, not a perfect trial. See Clayton, 321 Ark. 602, 906 S.W.2d 290. Cherry, though, was deprived of even a fair trial. In arguing that Cherry failed to demonstrate that he was prejudiced by the jury misconduct, the State fails to recognize that the prejudice in the case at bar stems from the fact that some jurors may have made up their minds about Appellee’s guilt or innocence before the case was submitted to them. According to Hart’s testimony, this may have occurred prior to the time the State had rested its case, and thus, before Cherry had a chance to present his defense. For even one juror to prematurely decide a defendant’s guilt before hearing all the evidence and being instructed on the law, deprives that criminal defendant of his right to a fair and impartial jury. Moreover, by discussing the case prematurely, those jurors who had already made up their minds could have possibly influenced others who were undecided about Cherry’s guilt.

In order to receive a new trial, Cherry was not required to demonstrate exactly how he was prejudiced; rather, he only needed to prove that there was a reasonable possibility of prejudice. See Larimore, 309 Ark. 414, 833 S.W.2d 358. Once Cherry demonstrated this possibility of prejudice, the trial court could not sit idly by and do nothing. The fact that this problem arose in a posttrial situation left the trial court with only one option, to grant Cherry a new trial. Section 16-89-130(c)(7) (Repl. 1987) provides in part:

(c) The court in which a trial is had upon an issue of fact may grant a new trial when a verdict is rendered against the defendant by which his substantial rights have been prejudiced, upon his motion, in the following cases:
(7) Where, from the misconduct of the jury, or from any other cause, the court is of [the] opinion that the defendant has not received a fair and impartial trial. [Emphasis added.]

Thus, it was clearly within the trial court’s discretion to grant Cherry a new trial.

We reject the State’s argument that the trial court erred in finding prejudice. The federal courts of appeals’ treatment of intrajury misconduct is enlightening to the situation at hand. The courts of appeals have previously held that jury misconduct involving premature discussions may prejudice a defendant. See United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998), cert denied, 526 U.S. 1007 (1999); United States v. Resko, 3 F.3d 684 (3rd Cir. 1993). In Resko, during the course of the trial, a juror approached the court’s bailiff and reported that members of the jury had engaged in premature discussions. The bailiff reported this to the trial court, who in turn informed counsel. After rejecting counsel’s motion for individualized voir dire of the jury panel, as well as a motion for a mistrial, the trial court called the jurors en masse, told them of the problem, and requested each juror to fill out a questionnaire. The questionnaire consisted of the following two questions:

1. Have you participated in discussing the facts of this case with one or more other jurors during the trial? Yes_ No_
2. If your answer to Question No. 1 is “Yes,” have you formed an opinion about the guilt or non-guilt of either defendant as a result of your discussions with other jurors? Yes_ No_

All twelve jurors answered “yes” to the first question and “no” to the second question. The trial court did not inquire further, and the trial resumed with the defendants ultimately being convicted.

On appeal, the Third Circuit concluded that the trial court erred by declining Resko’s motion to engage in further inquiry to determine whether the jurors had maintained open minds. The court pointed out that the prohibition against jurors discussing the case before they have heard both the evidence and the court’s legal instructions is a generally accepted principle of trial administration. The court then set forth several reasons for the prohibition on premature deliberations. For example, the court pointed out that the jury system is meant to involve decision making as a collective, deliberative process, and premature discussions among individual jurors may thwart that goal. Also, requiring the jury to refrain from prematurely deliberating the case in a criminal matter helps protect a defendant’s right to a fair trial under the Sixth Amendment, as well as his or her due-process right to place the burden on the government to prove its case beyond a reasonable doubt. We are persuaded by this reasoning.

Another federal case discussing the issue of intrajury misconduct is United States v. Nance, 502 F.2d 615 (8th Cir. 1974). In Nance, the court of appeals held that it was not an abuse of discretion for the trial court to deny a motion for a new trial. In so holding, however, the court pointed out that the only testimony regarding juror misconduct came from the defendant’s counsel, and was thus hearsay. None of the jurors were questioned about their participation in discussions during the course of the trial. In addition, although an alternate juror reported the premature discussions to defense counsel after the case had been submitted to the jury, defense counsel did not report this to the court until after an unfavorable verdict had been rendered. Unlike the present situation, the court in Nance pointed out that the alternate juror stated that despite the alleged discussions, no juror had firmly made up his mind. Again, the prejudice in this case stems from the fact that some jurors not only made up their minds about whether Cherry was guilty, but also discussed those opinions with other jurors, in essence thwarting the collective, deliberative decision-making process of the jury.

In sum, the trial court was faced with evidence that jurors had discussed the facts in the case, as well as the evidence. As egregious as such conduct may have been, we cannot say that standing alone, it would have been enough to support a finding of prejudice. However, when this conduct is considered in light of the testimony that some jurors prematurely formed a conclusion about defendant’s guilt and then discussed those conclusions with other jurors, it does support a finding of prejudice. In light of the foregoing, we cannot say the trial court manifestly abused its discretion in granting Cherry a new trial.

Affirmed.

Glaze, Imber, and Smith, JJ., dissent.

ANNABELLE CLINTON Imber, Justice,

dissenting. I dissent stice606(b) , the Arkansas Rules of Evidence, which states:

(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

Ark. R. Evid. 606(b). The majority states that “this situation is not governed by Ark. R. Evid. 606(b) because the jurors were not questioned about matters involving their formal deliberations. Rather, the hearing focused on discussions that occurred prior to formal deliberations.” I disagree wholeheartedly with the majority’s reasoning.

Rule 606(b)’s limitations on postverdict juror testimony is not limited to matters that occur during “formal deliberations.” The rule simply states that “a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations.” Ark. R. Evid. 606(b) (emphasis added). The United States Supreme Court has clearly indicated that the matter inquired into need not occur during formal deliberations in order for Rule 606(b) to apply. Tanner v. United States, 483 U.S. 107 (1987) (interpreting Fed. R. Evid. 606(b), which is virtually identical to the Arkansas rule). In Tanner, as the majority of this court states, “[t]he United States Supreme Court held that it was not error for the district court to refuse to conduct an evidentiary hearing at which jurors would testify about drug and alcohol use during the trial.” (Emphasis added). Therefore, Rule 606(b) prohibits juror testimony regarding internal jury matters that occurred during the trial. The implicit holding of Tanner is that Rule 606(b) reaches misconduct by the jury after impanelment but before it begins formally to deliberate. Christopher B. Mueller, 3 Federal Evidence §§ 248, 252 (2d. Ed. 1994). Specifically, Rule 606(b)’s limitations on juror testimony extend “to proof that jurors discussed the case among themselves before getting final instruction and being dismissed to deliberate.” Christopher B. Mueller, 3 Federal Evidence § 252 (2d. Ed. 1994). At least one federal court has so held. United States v. Cuthel, 903 F.2d 1381 (11th Cir. 1990). There, the Eleventh Circuit held that under Tanner, inquiry into jury “misconduct prior to the deliberations” is barred, and the trial court properly refused to investigate allegations that jurors “considered the merits of the case before they were instructed to begin deliberations.” Id. at 1382, 1383. Thus, the majority erroneously concludes that Rule 606(b) is inapplicable to the present case because the jurors were questioned only about discussions that occurred prior to formal deliberations.

Additionally, Rule 606(b) states that a juror may not testify “ to the effect of anything upon his or any other juror’s mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.” Ark. R. Evid. 606(b) (emphasis added). The trial court in this case allowed defense counsel to question the jurors about whether the premature jury deliberations had any affect on their decision as to Mr. Cherry’s guilt or innocence or had any impact on their decision as to sentencing. This is exactly the sort of testimony that Rule 606(b) expressly prohibits. Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983); Lewis v. Pearson, 262 Ark. 350, 556 S.W.2d 661 (1977).

We have interpreted Rule 606(b) to allow testimony by jurors in only two instances; that is, when the inquiry involves (1) whether any improper outside influence has been brought to bear upon the jurors or (2) whether any extraneous prejudicial information has been improperly brought to the jury’s attention. Davis v. State, 330 Ark. 501, 956 S.W.2d 163(1997) (“A.R.E. 606(b) only permits inquiry into whether any external influence or information could have played a part in the jury’s verdict.”); Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 748 S.W.2d 143 (1988) (“Rule 606(b) ensures that jury deliberations should remain secret, unless it becomes clear that they jury’s verdict was tainted by a showing of extraneous prejudicial information or some improper outside influence.”). Jurors may not testify to matters internal to the jury room. Witherspoon v. State, 322 Ark. 376, 909 S.W.2d 314 (1995) (“We have recognized that the sanctity of jury deliberations is a fundamental precept of our adversary system.”); Watkins v. Taylor Seed Farms, Inc., supra (“this court has shown a reluctance to invade the sanctity of the jury room in order to impeach a jury’s verdict”); Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985) (“[Rule 606(b)] provides that an irregularity in the jury room which is an internal occurrence may not be investigated, but that an irregularity due to some external event may be investigated.”). Consequently, it is well recognized by this court that inquiry into matters internal to the jury are prohibited by Rule 606(b), and the rule only allows evidence of external influence or information.

It follows, then, that prejudice can only be found when extraneous prejudicial information has been brought to the jury’s attention or when improper outside influence has been brought to bear on the jury. This court has never found prejudice resulting from a matter internal to the jury. The majority is incorrect when it states that extraneous prejudicial information and improper outside influence “are not exclusive types of misconduct that warrant relief.” Indeed, they are the only exceptions provided in Rule 606(b) that warrant postverdict relief. In the present case, none of the jurors’ testimony related to extraneous prejudicial information or improper outside influence. The trial court therefore erred when it found prejudice based upon such testimony.

The majority cites two federal cases in support of its conclusion that the premature jury discussions prejudiced Mr. Cherry: United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998) and United States v. Resko, 3 F.3d 684 (3rd Cir. 1993). While those cases seem to allow juror testimony regarding intrajury misconduct and premature jury discussions despite Rule 606(b), they are clearly inapposite. Rule 606(b) applies only to postverdict testimony by jurors. United States v. McVeigh, supra; United States v. Resko, supra. After all, the reason for the rule is to protect jury verdicts from impeachment. Tanner v. United States, supra; State v. Osborne, 337 Ark. 172 , 988 S.W.2d 485 (1999); Watkins v. Taylor Seed Farms, Inc., supra; Christopher B. Mueller, 3 Federal Evidence § 247 (2d. Ed. 1994). The Supreme Court in Tanner reiterated the substantial policy considerations that support the common-law rule against the admission of jury testimony to impeach a verdict, which is now embodied in Rule 606(b):

As early as 1915, this Court explained the necessity of shielding jury deliberations from public scrutiny:
“[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.” McDonald v. Pless, 238 U.S., at 267-268, 35 S.Ct., at 784.

See also Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892).

The Court’s holdings requiring an evidentiary hearing where extrinsic influence or relationships have tainted the deliberations do not detract from, but rather harmonize with, the weighty government interest in insulating the jury’s deliberative process.

There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it. Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict, seriously disrupt the finality of the process. See, e.g,, Government of Virgin Islands v. Nicholas, supra, at 1081 (one year and eight months after verdict rendered, juror alleged that hearing difficulties affected his understanding of the evidence). Moreover, full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community’s trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror conduct. See Note, Public Disclosures of Jury Deliberations, 96 Harv. L. Rev. 886, 888-892 (1983).

Tanner v. United States, 483 U.S. at 119-21.

In United States v. Resko, the jury misconduct was discovered mid-trial, on the seventh day of a nine-day trial, before the jury had reached a verdict, and the jurors were questioned upon a motion for mistrial prior to a verdict being reached. Thus, Rule 606(b) was inapplicable. United States v. Resko, supra. Likewise, in United States v. McVeigh, the intrajury misconduct was brought to the court’s attention weeks before the jury reached a verdict, and Rule 606(b) was inapplicable. In the instant case, however, the jurors were called to testify at a hearing on a motion for a new trial made several days after the jury had reached a verdict. Unlike Resko and McVeigh, this case involved the impeachment of a jury verdict, and, therefore, Rule 606(b) was applicable.

Finally, the majority makes the broad assertion that a criminal defendant will be deprived of his right to a fair and impartial jury if “even one juror” prematurely decides the defendant’s guilt before hearing all the evidence and being instructed on the law. The Supreme Court rejected this assertion in Tanner, when it held that an evidentiary hearing in which jurors would testify about juror alcohol and drug use during trial was not required to protect the defendant’s .right to an impartial and competent jury under the Sixth Amendment. Tanner v. United States, supra.

In conclusion, the postverdict testimony by the jurors in the present case related entirely to intrajury matters and was inadmissible under Rule 606(b). There was no evidence of extraneous prejudicial information or improper outside influence. Accordingly, there was no prejudice shown. For these reasons, I respectfully dissent.

Glaze and SMITH, JJ., join in this dissent.


author: Donald L. Corbin, Justice.

text:
    Donna STEPHENS and Ray Stewart v. ARKANSAS SCHOOL FOR THE BLIND; Mark Riable, Houston Nutt, William Payne, Sharon Mazzanti, and Tommy Walker, In Their Official and Individual Capacities
    00-61
    20 S.W.3d 397
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000

      Alice S. Gray, Chancellor;

      Mitchell, Blackstock, Barnes, Wagoner & Ivers, by: Clayton R. Blackstock, for appellants.

      Mark Pryor, Att’y Gen., by: Patricia Van Ausdall Bell, Ass’t Att’y Gen., for appellees.
   Donald L. Corbin, Justice.

This case involves allegations e. unjust discharge by Appellants Donna Stephens and Ray Stewart, two former teachers at the Arkansas School for the Blind (ASB). Appellees in this action are ASB and its individual Board members, Mark Riable, Houston Nutt, William Payne, Sharon Mazzanti, and Tommy Walker. Appellants filed suit in the Pulaski County Chancery Court seeking a declaration that the Board was without authority to terminate their employment pursuant Ark. Code Ann. §§ 6-43-102 and -104 (Repl. 1999); they contended that only the superintendent had the authority to discharge employees. Appellants also sought a fair and impartial hearing before the Board regarding their discharge, as provided in Ark. Code Ann. § 6-43-210 (Repl. 1999). The chancellor found that the Board did not discharge the employees, but that it made a budgeting decision to eliminate altogether the positions filled by Appellants. The chancellor found that once the Board’s decision caused Appellants’ services to no longer be needed, the superintendent discharged them. The chancellor also denied Appellants’ request for a hearing before the Board. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1 — 2(b)(1) & (6), as it presents issues of first impression requiring statutory interpretation. We find no error and affirm.

We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Simmons First Bank v. Bob Callahan Servs., Inc., 340 Ark. 692, 13 S.W.3d 570 (2000); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. Similarly, we review issues of statutory construction de novo, as it is for this court to decide what a statute means. Simmons First Bank, 340 Ark. 692, 13 S.W.3d 570; Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. With this standard in mind, we review the facts of this case.

The record reflects that Appellant Ray Stewart was employed as ASB’s recreational activity leader and Appellant Donna Stephens was employed as an English teacher for the sensory impaired. Appellants’ positions were eliminated by the Board effective February 21, 1997. Prior to this time, there had been discussions in the state legislature about the possibility of combining some of the services for ASB and the Arkansas School for the Deaf. Additionally, various members of the legislature and the Governor’s staff had voiced repeated concerns that ASB’s staff needed to be reduced. A study conducted by the Bureau of Legislative Research, Personnel Review Section, recommended the elimination of numerous positions at the school. Additionally, two members of the legislature repeatedly told Board members and ASB’s superintendent that the school needed to reduce its staff. According to the former superintendent, Dr. Ivan Terzieff, those two legislators were of the opinion that fourteen positions could be eliminated without affecting ASB’s operations. The impression left with the Board and the superintendent was that if they did not take action to reduce the school’s staff, the legislature would.

In January 1997, while Dr. Terzieff was superintendent, the Uniform Personnel Committee of the state legislature recommended that seven vacant positions be eliminated from ASB’s staff. According to Ken Garner, Personnel Director of the Bureau of Legislative Research, the Committee withheld action because there was some level of resistance to the cuts from Dr. Terzieff. Shortly thereafter, however, the Board terminated Dr. Terzieff and replaced him with Jim Hill, who was the school’s principal. Superintendent Hill was then charged by the Board to work with the state legislature in an attempt to reduce the school’s personnel. Following the Board’s instructions, Hill met with Garner. Garner did not direct which positions to eliminate; rather, he expected Hill to use his judgment as an administrator to pick the seven positions, whether they were filled or unfilled. Hill initially recommended the elimination of four unfilled positions and three filled positions, including those held by Appellants. Subsequently, Hill recommended the elimination of an additional filled position, making a total of eight positions.

The minutes of the Board’s February 20, 1997 meeting reflect that Board member Dr. Payne moved to eliminate eight positions: (1) Accountant; (2) Recreational Activity Leader Supervisor (the position held by Appellant Stewart); (3) Recreational Activity Leader II; (4) Administrative Assistant II; (5) Teacher III; (6) Teacher III; (7) Teacher III; and (8) Teacher IV (the position held by Appellant Stephens). Dr. Payne also moved that if his motion was approved, the personnel involved would be relieved of their responsibilities as of the end of the following workday. The motion was seconded, and the Board voted to eliminate the positions. As a result, Hill terminated Appellants the following day, with an additional thirty days’ pay.

During the trial below, Appellants contended that the Board lacked statutory authority to discharge them and that, accordingly, it had acted ultra vires in doing so. They argued that only the superintendent has the power to discharge ASB employees, and that upon such discharge, the employees are entitled to a hearing before the Board to determine whether their terminations were just. Appellants sought relief in the form of a fair and impartial hearing regarding their discharges and a declaration that the Board had no authority to discharge any ASB employee. The chancellor denied the requested relief.

In a well-reasoned opinion, the chancellor found that the Board is charged by statute with the control and management of the school, and that the Board must exercise such powers of supervision and control that are not specifically reserved to the superintendent. See section 6-43-102(a) and (b)(1). On the other hand, the chancellor found that the superintendent is entrusted with the immediate control and management of the school. See Ark. Code Ann. § 6-43-103 (a) (Repl. 1999). As part of the duty of immediate management, the superintendent has “the sole power to remove employees” of ASB and “may remove any employee at any time in [his] discretion for cause, but, in case of removal, he shall report the removal and the ground therefor to the board of trustees.” Section 6-43-104(b).

The chancellor determined that in passing the foregoing provisions, the legislature intended that the Board be in charge of, control, and direct the overall school operations, but that the superintendent be responsible for the day-to-day immediate management of the school. The chancellor found that, in this case, the Board had presented valid management reasons to ehminate some staff positions and free those funds for other purposes. The chancellor found further that the Board’s decision to ehminate these positions was a “budgeting decision,” based on the Board’s behef that the positions were no longer needed. The chancellor relied on section 6-43-210, which provides in part: “The teachers, officers, and employees shall perform such other duties as the superintendent may direct, and when their services are not needed, they shall he discharged.” (Emphasis added.) The chancellor reasoned that this provision was a specific determination by the legislature that ASB employees may be terminated when their positions are no longer needed.

Ultimately, the chancellor concluded:

Although the General Assembly must vote to fund the School’s budget, there is nothing in the statute to indicate the Board does not have the usual power of school boards to control development of its budget and determine priorities for funding. As such, the Board’s decision to ehminate certain positions to free the money for other purposes is not ultra vires. The Board did not discharge the employees. The Board acted properly in making a budgeting and administrative decision which resulted in elimination of the Plaintiffs’ positions. When the Board’s decision caused the Plaintiffs’ services to no longer be needed, the Superintendent determined which employees to terminate and followed through with those terminations.

The chancellor also concluded that Appellants were not entided to a hearing under section 6-43-210, because they did not meet their burden of proof that they were unjustly discharged.

For reversal, Appellants argue that the Board lacked the authority to discharge them, and that the chancellor therefore erred in finding that the Board’s actions were not beyond the scope of its powers. Appellants contend that only the superintendent may discharge employees, pursuant to section 6-43-104, and that upon his doing so, the discharged employees are entitled to a fair and impartial hearing before the Board under section 6-43-210. Appellants assert that all employees discharged by the superintendent, for any reason, are entitled to such a hearing.

The Board, on the other hand, contends that its decision to eliminate the eight positions was a policy decision, going to the heart of its authority to manage the school. The Board submits that it is the legislature’s intention, as evidenced by section 6-43-210, that it manage the school frugally and not staff positions that are no longer necessary. The Board asserts that its decision to eliminate the eight positions from the active-staff budget was based upon its belief that these positions could be eliminated with the least amount of damage to the educational purpose of the school. The Board points to the fact that Appellant Stewart’s position merely pertained to after-school recreation, and that his duties could be performed by other staff members. Similarly, the Board points out that at the time of its decision, ASB had one math teacher, one science teacher, and three English teachers. Thus, the Board asserts that if a teacher’s position was to be eliminated, an English teacher was a logical choice. Of the three English teachers, Appellant Stephens had the least seniority. In short, the Board contends that its decision to eliminate Appellants’ positions did not amount to a discharge of individual employees for cause, such that it would infringe upon the power reserved solely to the superintendent under section 6-43-104. We agree.

The particular statutes at issue here have not been interpreted by this court. The basic rule of statutory construction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute must be construed so that no word is left void or superfluous and in such a way that meaning and effect is given to every word therein, if possible. Id. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Id. Where the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id. (citing State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994)). Statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). As stated above, we are not bound by the decision of the trial court; however, in the absence of a showing that the trial court erred in its interpretation of the law, we will accept that interpretation as correct on appeal. Simmons First Bank, 340 Ark. 692, 13 S.W.3d 570.

Before reviewing the relevant statutory provisions, we note that it is not contended that the Board lacked authority to eliminate the four unfilled positions. Such authority resides within the Board’s statutory duties to manage and control the school, pursuant to section 6-43-102(a). The question then is whether the Board’s decision to eliminate the four filled positions, in addition to the unfilled positions, is tantamount to a decision to discharge the individual employees filling those positions. In other words, does the fact that some of the positions were filled at the time of their elimination change the nature of the Board’s actions, and, if so, did the Board exceed its authority in doing so?

Appellants contend that only the superintendent may discharge employees. Appellants are partly correct. Section 6-43-104(b) provides: “The superintendents shall have the sole power to remove employees of the respective schools and may remove any employee at any time in their discretion for cause, but, in case of removal, he shall report the removal and the ground therefor to the board of trustees.” (Emphasis added.) Thus, the superintendent’s power to discharge employees is limited to situations where there is cause for removal. Section 6-43-104(b) does not provide the superintendent with a carte blanche authority to discharge.

Conversely, section 6-43-210 provides:

The teachers, officers and employees shall perform such other duties as the superintendent may direct, and when their services are not needed, they shall be discharged. However, if the teachers, officers, and employees are unjustly discharged, they shall be entitled to a fair and impartial hearing before the board of trustees. [Emphasis added.]

Construing this provision in its entirety and in conjunction with section 6-43-104(b), it is clear that the legislature envisioned two different types of discharges. The first is the discharge of an employee whose services are no longer needed. This discharge is mandatory, as evidenced by the legislature’s use of the word “shall.” See, e.g., State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999); Fulmer v. State, 337 Ark. 177, 987 S.W.2d 700 (1999); Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986). The second type of discharge is that reserved to the superintendent in section 6-43-104(b) to remove any employee in his discretion for cause. It is this discretionary discharge that may trigger the hearing provided in section 6-43-210. Thus, employees who are mandatorily discharged because their services are no longer needed are not entitled to a hearing to determine whether they were “unjustly discharged.” To interpret section 6-43-210 any other way would lead to an absurdity.

Here, the evidence supports the chancellor’s finding that the Board’s decision to eliminate Appellants’ positions was due to the fact that they were no longer needed, and that the funds were needed to purchase computers and other technical supplies. It is of no consequence that the funds from AppeEants’ salaries could not automaticaEy be used to purchase these supplies. What is significant for purposes of this appeal is that the Board determined that AppeEants’ positions were no longer needed and that the eHmination of their positions would free up monies for the necessary supplies. Their discharges were thus of the mandatory type. As such, AppeEants were not entitled to a hearing under section 6-43-210.

Given our conclusion that AppeEants’ discharges were mandatory, and not discretionary, the question then is whether it is the function of the superintendent or the Board to carry out such mandatory discharges. The answer to this question is not found in the language of section 6-43-210. Nevertheless, we may infer that because this power is not specificaEy reserved to the superintendent, it lies within the authority of the Board. Section 6-43-102(b)(l) provides that the Board “shaE exercise such powers of supervision and control as are not specificaEy reserved to the superintendent.” Section 6-43-104(b) only reserves to the superintendent the discretionary power to remove employees for cause. Accordingly, the authority to discharge an employee whose services are no longer needed resides with the Board, pursuant to section 6-43-102(b)(l). Moreover, this court has observed that “[t]he rule appears to be well established that trustees have not only all powers specifically delegated, but such additional or implied powers that may be necessary to carry out the trust.” Lindsay v. White, 212 Ark. 541, 551, 206 S.W.2d 762, 767 (1947). As the creation or elimination of a position is a function of the Board, it follows that the Board has the authority to determine whether a position is no longer needed. We thus affirm the chancellor’s finding that the Board did not exceed its authority in eliminating Appellants’ positions and causing them to be discharged.

Affirmed.

       A third plaintiff, Tina Maxey, took a voluntary nonsuit below.


author: Robert L. Brown, Justice.

text:
    IN The MATTER of the ADOPTION of Tyler Davis TOMPKINS, A Minor; Anthony and Elizabeth Johnson v. Melissa Joyce Tompkins
    99-957
    20 S.W.3d 385
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000

      Robert W Garrett, Probate Judge;

      Baxter, Jensen, Payne & Young, by: Ray Baxter and John Payne, for appellants.

      Robert L. Herzfeld, Jr, for appellees.
   Robert L. Brown, Justice.

The appellants, Anthony and stice. paternal grandparents of Tyler Davis Johnson, who is the child of appellee Melissa Tompkins and appellants’ deceased son, Jeffrey Johnson. Melissa Johnson, now Tompkins, and Jeffrey Johnson were divorced shortly after Tyler’s birth, and Melissa Johnson retained custody of Tyler. She then married Kenneth Tompkins in 1992. On September 25, 1998, Jeffrey Johnson died, and on December 30, 1998, Kenneth Tompkins, with the consent of Melissa Tompkins, filed a petition to adopt Tyler in the Saline County Probate Court. On January 6, 1999, the Tompkinses sent notice to the Johnsons that the petition for adoption had been filed and that a hearing on the matter had been set. On January 20, 1999, the Johnsons filed a response to the adoption petition. They asserted that the adoption would not be in Tyler’s best interest, and they asked the court to deny the petition. The Tompkinses then filed a motion to strike the response and contended that the Johnsons were not parties who were required to consent to the adoption under Ark. Code Ann. § 9-9-206 (Repl. 1998). Thus, according to the response, the Johnsons were not entided to file a responsive pleading.

On April 20, 1999, the adoption hearing was held. At the hearing, the Johnsons maintained that they should be allowed to present evidence on whether the adoption would be in Tyler’s best interest. The probate court found that while the applicable statute (Ark. Code Ann.. § 9-9-212(g) (Repl. 1998)), required notice to grandparents in adoption cases, it did not grant them an opportunity to be heard or to present evidence on the matter. On May 3, 1999, the trial court entered an order granting the adoption. In that same order, the probate court awarded visitation rights to the Johnsons.

The Johnsons urge in this appeal that they had a statutory right to be notified of the adoption and that, accordingly, due process affords them the additional right to be heard in the proceeding on whether the adoption is in the best interest of the child. They point specifically to § 9-9-212(g), the notice statute, but they also rely on this court’s decision in Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981). The Quarles decision, they contend, supports their position that they should have been afforded an opportunity to present evidence on the merits of the adoption. The Tompkinses counter that § 9-9-212(g) affords grandparents the opportunity to request visitation rights but not the authority to contest the adoption on the merits as an intervening party.

Section 9-9-212(g) provides:

When one (1) parent of a child or children is deceased, and the parent-child relationship has not been eliminated at the time of death, and adoption proceedings are instituted subsequent to such decease, the parents of the deceased parent shall be notified under the procedures prescribed in this subchapter of such adoption proceedings.

This court has consistently held that adoption statutes are to be stricdy construed and applied. See, e.g., Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994); Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992). Moreover, in Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981), this court said: “any rights existing in grandparents must be derived from statutes....” Id. at 304, 619 S.W.2d at 620.

It is clear that under § 9-9-912(g), the Johnsons had a right to notice of the adoption proceedings. And they received the required notice. But the statute does not grant to grandparents a right to intervene or a right to be heard in adoption proceedings. Under a strict construction analysis, we have no doubt that had the General Assembly intended to include a right to be heard by notified grandparents, it could easily have done so. Indeed, the General Assembly has specifically granted an opportunity to be heard together with the right to notice in other contexts. See, e.g., Ark. Code Ann. §§ 9-9-220 (Supp. 1999) (relinquishment and termination of parent and child relationship); 9-9-224 (Supp. 1999) (child born'to unmarried mother); 9-17-401 (Repl. 1998) (petition to establish support order).

The Johnsons are correct that in Quarles v. French, supra, this court held that under the facts of that case, the grandparents could be heard. But the facts in that case were different. In Quarles, we addressed the issue of whether the appellants, who were grandparents, had standing to intervene in the adoption proceedings for their grandchildren, who were children of their deceased child. The appellants’ son had died after he and his wife, the appellee, had divorced. The appellants were awarded full custody of their grandchildren for a period of approximately nine months under an order of the chancery court. Custody was later returned to the mother, but the grandparents were given weekend visitation rights. Later, the mother remarried and her husband sought to adopt the children. The grandparents were given statutory notice of the proceedings, and they moved to intervene. The probate court denied the motion and entered a final decree of adoption.

In reversing that decision, this court said that the question to be resolved is “do the visitation rights previously granted them by the chancery court confer a sufficient interest in the adoption proceeding that appellants have standing to intervene?” Quarles, 272 Ark. at 53, 611 S.W.2d at 758. We then noted that in at least two previous decisions, we had held that grandparents standing in loco parentis had a sufficient interest in the adoption of natural grandchildren to entide them to intervene in an adoption proceeding. Id. (Citing Cotten v. Hamblin, 234 Ark. 109, 350 S.W.2d 612 (1961); Nelson v. Shelly, 268 Ark. 760, 600 S.W.2d 411 (Ark. App. 1980)). This court also found it important that the grandparents were parties to the earlier custody proceeding and had specific visitation rights granted to them by the chancery court. We noted that the decree of adoption would extinguish those rights without an opportunity to be heard. We then concluded:

This decision is restricted to the narrow principle that grandparents who have been granted visitation pursuant to Ark. Stat. Ann. § 57-135 have a sufficient interest in adoption proceedings to intervene for the limited purpose of offering such evidence as may be relevant to the focal issue, i.e., whether the proposed adoption is in the best interest of the children.

Id. at 54, 611 S.W.2d at 759.

We followed this same approach in Cox v. Stayton, supra. The Cox case involved adoption proceedings for three children. The children had been taken from the custody of their parents and were temporarily placed in the custody of their grandparents, who were the appellants in the case. The children were later placed with foster parents. When the foster parents sought to adopt the children, the grandparents attempted to intervene to show that the adoption would not be in the best interest of the children. The trial court allowed the intervention but granted the adoption of each of the children. On appeal, the grandparents argued that the adoption statutes were unconstitutional because they deprived grandparents of their rights to the grandchildren without due process of law. This court found no merit to this argument and said:

The appellants’ argument fails to identify a foundation or basis for the alleged rights which they claim have now been lost. Before we may apply the tests of constitutionality, there must be a showing of some right or interest which is protected by the Constitution. Here we find none. As we have pointed out previously, at common law grandparents have no presumptive right to custody or adoption of their grandchildren, nor even a right of visitation, absent an order of the chancery court. We are drawn to the conclusion that any rights existing in grandparents must be derived from statutes, as in Ark. Stat. Ann. § 57-135 (Supp. 1979), or conferred by a court of competent jurisdiction pursuant to statutes. (Citations omitted.)
Of paramount importance in this case, as in all adoption and custody matters, is what is in the best interest of the child. Quarles, above. In the present case, the appellants have been allowed to intervene in the adoption proceeding to present whatever evidence may have been relevant to the best interest of these children. Having had that opportunity, their rights have been preserved to them.

Id. at 304-305, 619 S.W.2d at 620-621.

The present case does not fall within the ambit of these decisions for several reasons. In both Quarles and Cox, the grandparents had had court-ordered visitation rights prior to the adoption proceedings and also at one time had had legal custody of their grandchildren. This court held that because the grandparents stood in loco parentis to their grandchildren in both cases, they had standing to intervene in the adoption proceedings. In the case before us, however, the Johnsons have never had custody of Tyler. Custody has remained at all times with Melissa Tompkins. Further, while in their response to the petition for adoption the Johnsons alleged that they had visitation rights prior to the filing of the adoption petition, these rights were not court-ordered. Instead, the visitation rights were the result of a mutual agreement between the parties while the Johnsons’ son was still alive. Melissa Tompkins discontinued those grandparental visits following the death of Jeffrey Johnson. We conclude that because the Johnsons had no court visitation rights regarding Tyler prior to the initiation of the adoption proceedings and had never stood in loco parentis to their grandchildren, this court’s reasoning in Quarles and Cox does not apply.

Without a statutory grant enabling the Johnsons to be heard on the issue of Tyler’s adoption or caselaw supporting their due process claim, there is no basis for reversing the probate court’s order.

AiSrmed.


author: ROBERT L. Brown, Justice. TOM GLAZE, Justice, ANNABELLE CLINTON Imber, Justice,

text:
    Mabel KING, As the Administrator of Estate of Bobby King, Deceased, and Individually v. J.W. CARNEY, M.D.; J.W Carney, M.D., P.A.; National Healthcare of Newport, Inc., Individually and d/b/a Harris Hospital; and John Does 1-25
    99-1361
    20 S.W.3d 341
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000
    [Petition for rehearing denied September 7, 2000 ]

      Harold Erwin, Judge;

      The Boyd Law Firm, by: Charles Phillip Boyd, Jr. and Timothy J. Cullen, for appellants.

      Womack, Landis, Phelps, McNeill & McDaniel, by: Lucinda McDaniel, for appellees Virginia Carney, J.W. Carney, M.D., and J.W Carney, M.D., P.A.

      Friday, Eldredge & Clark, by: Jason B. Hendren, for appellee National Healthcare of Newport, Inc., d/b/a Harris Hospital.

       GLAZE, J., would grant with respect to appellee National Healthcare of Newport, Inc.

   ROBERT L. Brown, Justice.

This appeal is brought by appellant tice. following dismissal with prejudice of her medical malpractice complaint against appellees J.W Carney, M.D.; J.W. Carney, M.D., P.A.; National Healthcare of Newport, Inc., individually and d/b/a Harris Hospital (Harris Hospital); and John Does 1-25. She contends that her complaint was timely commenced under Rule 4(i) of our Arkansas Rules of Civil Procedure as good cause was shown for an extension of time in which to obtain service. She further contends that the dismissal by the circuit judge violated the one-year savings statute and that she reasonably relied on two valid court orders extending the time for her to obtain service, which she did before the circuit judge rescinded those orders. We agree that Mabel King complied with Rule 4(i) and obtained service within the extended time period before the circuit judge rescinded his orders. We reverse the order of dismissal of the circuit judge and remand for further proceedings.

According to the complaint of Mabel King, on or about October 23, 1995, her husband, Bobby King, fell from a combine and was taken to the emergency room of the Harris Hospital in Newport. He was treated for contusions, a hematoma, and chest pains, even though Mabel King contends her husband was not suffering from chest pains. Dr. J.W Carney, as the treating physician gave him medication which caused a brain hemorrhage, and he subsequently died.

On October 17, 1997, Mabel King filed her complaint for medical malpractice against Dr. Carney and the other appellees and signed the complaint pro se. On February 3, 1998, the Boyd Law Firm was retained as counsel for Mabel King, according to a motion filed by Charles Boyd. On February 5, 1998, Charles Boyd, as counsel, wrote Dr. Carney, the agent for service of Dr. Carney’s Professional Association, and the administrator of Harris Hospital, and requested that they have the appropriate insurance carriers contact him immediately. Also on February 5, 1998, he moved for an extension of time under Ark. R. Civ. P. 4(i) to serve the various appellees. This motion is not in the record. However, an order of the circuit judge dated February 9, 1998, was entered on February 23, 1998, granting an extension of time so that Mabel King could identify and serve the John Doe defendants. On February 6, 1998, Charles Boyd mailed copies of an amended complaint to Dr. Carney, his P.A., and Harris Hospital. On February 10, 1998, Mabel King filed an amended complaint with Charles Boyd as named counsel.

On February 12, 1998, Kang filed an addendum to her motion for extension of time and asked for an extension of time until February 24, 1998, to serve the defendants. In the addendum, ICing asserted that Dr. Carney and the agent for service of process for Dr. Carney’s professional association were both deceased which, she contended, presented a “further compelling reason” for an extension of time. It does not appear from the record that the circuit judge ruled on the addendum.

On February 17, 1998, which was the last day for serving process, Mabel King filed a second motion for extension of time. In this motion, she referred to hospital reports just received and stated that time was needed to explore settlement options. She attached, as exhibits, letters that had been written to certain defendants attempting to enter into settlement negotiations. That same day, the circuit judge entered an order granting the second motion for extension of time, in which he set a deadline of June 14, 1998, for service of process.

On February 19, 1998, Virginia Carney as the widow of Dr. Carney moved to dismiss the King complaint as untimely. On April 1, 1998, Harris Hospital did likewise. On April 23, 1998, the circuit judge held a hearing on the motions to dismiss and orally ruled from the bench that he was dismissing the King complaint. On April 29, 1998, King moved for reconsideration of the oral ruling, and filed an addendum to that motion on May 6, 1998.

On May 4, 1998, proof of service of process was filed regarding Virginia Carney as administratrix of the estate of Dr. Carney and Harris Hospital. On June 4,1998, proof of service on the Carney P.A. was filed. Virginia Carney and Harris Hospital filed second motions to dismiss on May 13, 1998’, on grounds that no gc ,-d cause had been shown for an extension of time for service of process. The Carney P.A. did likewise on June 5, 1998.

On August 27, 1998, a hearing on King’s motion for reconsideration of the April 23, 1998 oral ruling and the second motions to dismiss filed by the Carney Estate, the Carney P.A., and Harris Hospital was held before the circuit judge. On September 15, 1998, an order dismissing the King complaint with prejudice was entered. In that order, the circuit judge found that there had been no attempt to serve the appellees within one hundred and twenty days and that no good cause existed to excuse this failure. The judge further said that his orders of extension entered February 17 and 23, 1998, were signed without knowledge that there had been no attempted service. The judge set aside his previous orders, citing Ark. R. Civ. P. 54(b) as authority, and dismissed the complaint as not being commenced within the statute of limitations. Reconsideration of the dismissal was requested by King and deemed denied without action by the circuit judge. An initial appeal was dismissed by the court of appeals under Rule 54(b), because the complaint against the John Doe defendants was still pending. The complaint against those defendants was nonsuited by King, and a second appeal ensued. Because our rules relating to service of process are at issue, we accepted jurisdiction of this appeal.

King raises three pi ints in her appeal, but we need only address her third point because we agree that it is dispositive of this case. King contends that all that is required under Rule 4(i) to extend time for service of process is the filing of a motion within one hundred and twenty days of the filing of the complaint. King is correct in this regard. See Edwards v. Szabo Food Serv., Inc., 317 Ark. 369, 877 S.W.2d 932 (1994). The time for service may then be extended by the trial judge upon a showing of good cause. In this case, King’s attorney apparently made two motions for extension of time within one hundred and twenty days of filing the complaint. He contended in the motions in an effort to show good cause that (1) he had just received relevant hospital reports; (2) he had just been made aware that Dr. Carney and the agent for service of Carney P.A. were deceased; and (3) he was exploring setdement options. The circuit judge then entered two orders of extension daled February 17, 1998, and February 23, 1998. King obtained service on the Carney Estate, the Carney P.A., and Harris Hospital within the extended time frame set out in the order of February 17, 1998. It is true that the circuit judge orally ruled that the complaint should be dismissed before service was had, but a motion for reconsideration challenged that oral ruling and no order of dismissal was entered until September 15, 1998. By that time, King had obtained service on the pertinent parties. Hence, the oral ruling had no effect. Ark. R. Civ. P. 58; Supreme Court Administrative Order No. 2.

The Carney Estate, the Carney P.A., and Harris Hospital vigorously contend that no good cause was shown for the extension orders and that the circuit judge was perfectly within the bounds of his authority in rescinding the two orders under Ark. R. Civ. P. 54(b), which provides that a trial court may revise its partial adjudications before entry of final judgment. We need not address the good-cause issue because King obtained service of process bn the appellees before the extension orders were revoked. King had the right to rely on those extension orders, which, again, were in effect at the time service was obtained. See Cole v. First Nat’l Bank of Ft. Smith, 304 Ark. 26, 800 S.W.2d 412 (1990) (plaintiff had the right to rely on the judge’s default judgment, though erroneously entered, and the savings statute applied).

The order of dismissal with prejudice is reversed, and this matter is remanded for further proceedings.

Reversed and remanded.

GLAZE, J., affirms in part; dissents in part.

Imber, J., dissents.

Smith, J., not participating.

TOM GLAZE, Justice,

concurring in part; dissenting in part. iagree ce, Justice Imber’s dissenting opinion wherein she criticizes the majority’s holding which now permits any plaintiff who files a timely motion for extension and obtains an ex parte order to avoid proof of good cause until such time as the defendant demands a showing. This is bad precedent for the reasons discussed by Justice Imber. Nevertheless, I would still reverse the trial court’s dismissal with prejudice against J.W. Carney, M.D., and J.W Carney, M.D., P.A., because the record reflects the appellants complied with Rule 4(i) of the Arkansas Rules of Civil Procedure and showed good cause in obtaining an extension of time for service of process.

Appellants tried to contact all appellees by registered mail within the required 120-day period under Rule 4(i), and learned only about eight days before the period ended that both Dr. J.W Carney’s and his professional association’s registered agent, attorney Fred Pickens, had died. In my view, appellants were confronted with a legitimate reason for seeking additional time to discover how (and upon whom) they must obtain service.

The same cannot be said of appellee-defendant Harris Hospital. In fact, appellants’ registered letters reached Harris Hospital and its agent, and the appellants conceded they knew where Harris Hospital was and how to serve it. Nonetheless, they never attempted service on the hospital or its agent during the 120-day period. While appellants argue their delay in obtaining service was because they had made good-faith efforts at opening settlement dialogue, the appellants’ broaching an interest in settlement, alone, cannot be good cause to extend the service of process time, or the Rule 4(i) extension period could well be manipulated or abused in seeking unnecessary delays.

Because I believe the trial court erroneously dismissed the appellants’ complaint against Dr. Carney and his professional association, I would reverse the court. I would affirm its dismissal as to Harris Hospital.

ANNABELLE CLINTON Imber, Justice,

dissenting. I cannot agree stice, because it effectively creates a safe harbor for plaintiffs who fail to perfect service within 120 days without good cause, as long as they file a motion to extend the time for service of process within that 120 days.

Mrs. King filed this action in the Circuit Court of Jackson County on October 17, 1997. Pursuant to Ark. R. Civ. P. 4(i), Mrs. King was required to perfect service upon the separate defendants on or before February 17, 1998. However, Rule 4(i) authorizes the trial court, in its discretion, to grant an extension of time to achieve service of process upon a showing of good cause, if the motion to extend is made within the 120 days. The record reflects that Mrs. King filed two motions for extension of time, one on February 12, 1998, and one on February 17, 1998. These extensions were granted by the trial court without a hearing and the time for service was extended until June 14, 1998.

Of course, the defendants, appellees here, objected to these extensions of time for service, and a hearing took place on April 23, 1998, wherein the defendants challenged the extensions of time for lack of good cause. Finding that Mrs. King failed to show good cause for extending the time for service because she had not even attempted service until her deadline had nearly passed, and agreeing that he had erred in granting the motions, the trial court ruled from the bench that he was setting aside his two orders granting the extensions of time and dismissing the case. Following this pronouncement from the bench, Mrs. King proceeded (1) to file a motion for reconsideration of the trial court’s April 23, 1998 oral ruling, and (2) to perfect service of process on the separate defendants by the June 14, 1998 deadline set by the trial court in the February 17, 1998 extension order. The trial court eventually held a hearing on Mrs. King’s motion for reconsideration, but, following the hearing, once again set aside the orders granting extension of time and dismissed the case with prejudice. The order of dismissal was ultimately filed on September 15, 1998.

The majority today holds that because Mrs. Kang relied upon the orders granting the extensions of time and obtained service before the trial court filed its order on September 15, 1998, the trial court’s order of dismissal must be reversed. I cannot agree. It is not uncommon for trial courts to grant ex parte extensions of time for service. Following today’s ruling, any plaintiff who files a timely motion for extension and obtains an ex parte order can avoid proof of good cause until such time as the defendant demands a showing. Even if an ex parte order granting an extension is subsequently set aside by the trial judge, as long as the plaintiff is able to serve the defendant before the set-aside order is filed with the clerk, the service is good. We are essentially creating a race between the trial court’s filing of the order setting aside the extension and the plaintiff’s perfection of service: whoever files first wins. This holding allows plaintiff’s to avoid compliance with our rules of procedure, creating a safe harbor for parties who lack good cause for failure to serve within 120 days. I must respectfully dissent.

GLAZE, J., joins this dissent in part.

       The complaint, however, states in its first paragraph that the plaintiffs are appearing by and through the Boyd Law Firm.

       The one hundred and twentieth day actually fell on Saturday, February 14, 1998. Monday, February 16, 1998, was a holiday which made February 17, 1998, the last day for service of process.


author: Per Curiam.

text:
    Kim BEAVERS v. STATE of Arkansas
    CR 00-615
    25 S.W.3d 413
    Supreme Court of Arkansas
    Opinion delivered September 7, 2000

      Alvin D. Clay, for appellant.
    No response.
   Per Curiam.

Appellant Kim Beavers filed a motion for rule on the clerk. We previously denied the motion because Appellant’s attorney, Alvin D. Clay, did not admit fault in failing to timely file the record on appeal. See Beavers v. State, 341 Ark. 649, 19 S.W.3d 23 (2000)(per curiam). We indicated, however, that we would grant the motion if Appellant’s attorney filed an affidavit accepting responsibility for failing to timely file the appellate record. Appellant’s attorney has assumed responsibility for the error in an affidavit filed on July 27, 2000.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam) (citing Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam)). A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).


text:
    Alicen BECKHAM v. STATE of Arkansas
    CR 00-901
    25 S.W.3d 412
    Supreme Court of Arkansas
    Opinion delivered September 7, 2000

      Robert A. Newcomb, for appellant.
    No response.
   Per Curiam.

Alicen Beckham, by her attorney, has filed a motion for rule on the clerk.

Her attorney, Robert A. Newcomb, admits in his motion that the record was tendered late due to a mistake on his part.

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

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


text:
    Charles Ray BOLTON v. STATE of Arkansas
    CR 00-881
    25 S.W.3d 412
    Supreme Court of Arkansas
    Opinion delivered September 7, 2000

      Joseph D. Hughes, for appellant.
    No response.
   Per Curiam.

Charles Ray Bolton, by his attorney, has filed a motion for rule on the clerk.

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

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

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


text:
    Richard CRAFT v. STATE of Arkansas
    CR 00-829
    26 S.W.3d 584
    Supreme Court of Arkansas
    Opinion delivered September 7, 2000

      Joseph D. Hughes & Assocs., P.A., by: Joseph D. Hughes, for appellant.
    No response.
   Per Curiam.

Richard Craft, by his attorney, has filed a motion for rule on the clerk. His attorney, Joseph D. Hughes, admits in his motion that the record was tendered late due to a mistake on his part.

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

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


text:
    Daniel Milburn HAINLINE v. STATE of Arkansas
    CR 00-798
    25 S.W.3d 413
    Supreme Court of Arkansas
    Opinion delivered September 7, 2000

      Davis & Zega, P.A., by: Boyce R. Davis, for appellant.
    No response.
   Per Curiam.

Appellant, Daniel Milburn Hainline, by and through his attorney, has filed a motion for a rule on the clerk. His attorney, Boyce R. Davis, states in the motion that the record was tendered late due to a mistake on his part.

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

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