author: Robert H . Dudley, Justice.

text:
    Terry YAMAUCHI, Director of the Ark. Dept. of Human Services, et al. v. SOVRAN BANK/CENTRAL SOUTH, Trustee of the Lewis B. Ridley Trust
    91-207
    832 S.W.2d 241
    Supreme Court of Arkansas
    Opinion delivered June 8, 1992

      Department of Human Services, by: Richard B. Dahlgren, for appellants.

      Arnold, Grobmyer, & Haley, by: David H. Pennington, for appellee.
   Robert H . Dudley, Justice.

In 1972 Lewis B. Ridley, then a resident of Jonesboro, Craighead County, established a revocable trust that had as its purpose his support during his lifetime, then the support of his adult, mentally retarded daughter for her lifetime, and finally, the undistributed corpus was to pass, free of trust, to three remainder beneficiaries. The settlor died in January of 1981, and his retarded daughter, Margaret B. Ridley, became the lifetime beneficiary. Margaret, who is now over sixty years old, has been institutionalized in various facilities for many years. In late 1972 or early 1973, her father, the settlor, arranged for her to be placed in Alexander Children’s Colony, now known as Alexander Human Development Center, which is located in Saline County. That institution is and has been operated by appellant Department of Human Services and its governmental predecessors. In 1974 Margaret was declared eligible for Medicaid, and that program began paying the cost of her institutional care at that time.

Bette Dryer was appointed guardian, either of the person or the estate of both, of Margaret apparently just after the death of the settlor. In September of 1984, a Saline County employee of appellant Department of Human Services determined that under the terms of Medical Services Regulations 3330 and 3332 Margaret was no longer entitled to receive Medicaid benefits because she was a beneficiary of both the principal and income of the trust at issue. The guardian, Bette Dryer, who apparently lives in Mississippi County, asked for a hearing on the matter. The appellant provided a hearing at its Mississippi County office, and the appeals officer held that under Medical Services Regulations 3330 and 3332 Margaret was not entitled to receive Medicaid. The appeals officer based her holding on the “evidentiary fact” that Margaret was entitled to both the principal and the interest of the trust. The hearing was held on October 1,1986, and the appeals officer’s decision was entered on October 31, 1986. The guardian appealed under the provisions of the Administrative Procedures Act. On February 1,1990, almost three and one-half years later, the Circuit Court of Mississippi County, in a two-sentence order, found that appellant’s decision was neither arbitrary nor capricious, was supported by substantial evidence, and affirmed it.

The trustee made payments to the Department of Human Services totalling $1,710.00 in the months of February and March, 1990. On April 1,1990, appellant Department of Human Services made demand on the trustee for $ 167,3 51.31, more than the total assets of the trust, for the past care of Margaret. Immediately thereafter the guardian moved the ward, Margaret, to Pathfinders, an institution located in Jacksonville, which is in Pulaski County.

Under the terms of the trust, appellee bank, Sovran Bank/ Central'South, is the successor trustee. Both the original trustee and the successor trustee are incorporated in and have their corporate offices in Tennessee. The trust provides that it shall be governed by the laws of Tennessee. After receiving the demand from appellant Department for over $167,000.00 the trustee, in June 1990, filed suit for a declaratory judgment in which it asked the Chancery Court of Pulaski County to determine the rights of the parties to the principal of the trust and, in addition, asked that the appellant be required to re-evaluate Margaret Ridley’s eligibility for Medicaid. Appellant answered and counterclaimed against the bank in the amount of $169,127.81 for the cost incurred in caring for Margaret. The chancellor decided the rights of the parties under the declaratory judgment action and declined to award any money to the appellant Department under its counterclaim.

However, the chancellor did not have all of the necessary parties before the court. In the declaratory judgment action, complete relief could not be afforded without making the lifetime beneficiary and the remainder beneficiaries parties to the action. The interests of the guardian and the remaindermen conflict, because if all of the principal and income are paid on behalf of the ward, the remaindermen will receive nothing, but if all of the principal and interest are preserved, the ward will receive nothing. The interests of the guardian and remaindermen are also in conflict with appellant Department because the Department seeks all of the principal and interest for past debts and if that request were granted, it would leave nothing for either the ward or the remaindermen. Thus, the ward and the remaindermen have an interest in the outcome of the declaratory action. A pertinent portion of the declaratory judgment statute provides: “When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.” Ark. Code Ann. §16-111-106(a) (1987) (emphasis added). Rule 57 of the Arkansas Rules of Civil Procedure provides that the procedure for obtaining a declaratory judgment shall be in accordance with the Arkansas Rules of Civil Procedure, and Rule 19(a) of the Arkansas Rules of Civil Procedures provides:

A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or, (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter, impair or impede his ability to protect that interest. . . [Emphasis added.]

Many courts hold that the failure to include all necessary parties is a jurisdictional defect. See, e.g., In Re Hickik’s Estate, 111 N.E.2d 925 (Ohio 1953); Annotation, Declaratory Judgments-Parties, 71 A.L.R. 2d 723, 733-35 (1960). However, some courts have held that the failure to include all necessary parties is not a jurisdictional matter, but rather a matter to be governed by the facts of each case. See, e.g., Garnick v. Serewich, 121 A.2d 423 (N.J. 1956). This latter view seems to us to be the better construction of the declaratory judgment statute for a number of reasons. The statute itself seems to contemplate that the trial court shall have some limited discretion to allow proceedings without always having all of the necessary parties because it provides that “no declaration shall prejudice the rights of persons not parties to the proceeding.” Ark. Code Ann. § 16-11 l-106(a) (1987). In addition, another part of the declaratory judgment act, Ark. Code Ann. § 16-111-108, seems to contemplate limited discretion, rather than jurisdiction, when it provides that the court may refuse to render a declaratory judgment if it would not terminate the uncertainty or controversy. Also, there may be cases in which it is impossible or prohibitively expensive to obtain service on all of the necessary parties, but it would be unfair to leave those parties that are in court without a remedy.

Our cases have all followed this latter construction of the declaratory judgment statute. In Johnson v. Robbins, 223 Ark. 150, 152, 264 S.W.2d 640, 642 (1954), we wrote: “We need not now go so far as to say, as some courts have, that the presence of all necessary parties is jurisdictional; for in any event we regard the defect as sufficiently fundamental to be reached by demurrer.” In McFarlin v. Kelly, 246 Ark. 1237, 1241, 442 S.W.2d 183, 185 (1969), we wrote: “The failure to make any of them parties was a defect requiring the denial of a declaratory judgment.” (Citing Southern Farm Bureau Casualty Co. v. Robinson, 236 Ark. 268, 365 S.W.2d 454 (1963); Laman v. Martin, 235 Ark. 938, 362 S.W.2d 711 (1962); and Johnson v. Robbins, 223 Ark. 150, 264 S.W.2d 640 (1954)). Similarly, in Block v. Allen, 241 Ark. 970, 411 S.W.2d 21 (1967), we sustained a demurrer and stated that the reason was that complete relief could not be afforded. Finally, we have held that a companion declaratory judgment statute that provides that the Attorney General must be made a party before a statute is declared unconstitutional does not make service on the Attorney General, a necessary party, jurisdictional. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), cert. denied, 462 U.S. 1111 (1983).

In sum, upon de novo review, we hold that the chancellor erred in exercising jurisdiction because the guardian and the remaindermen could later raise identical issues, and thus, there would be no termination of the uncertainty or controversy.

Appellee Sovran Bank/Central South additionally asked that the chancery court order the appellant Department to re-evaluate Margaret’s eligibility under Medicaid. This prayer for relief is so clearly outside the subject-matter jurisdiction of chancery court that we summarily state that it did not provide jurisdiction to the chancery court.

Appellant Department of Human Services filed a permissive counterclaim for a past due open account. Since the chancery court should not have exercised jurisdiction over the complaint, there was no jurisdiction over a counterclaim on an open account under the clean up doctrine. Conversely, we make no holding as to whether the clean up doctrine would give chancery court jurisdiction over a permissive counterclaim for an open account. In addition, the counterclaim lacked a necessary party. The guardian, not the trustee, is the party that applied and appealed the Medicaid adjudication decision, and the guardian is apparently the party that appellant Department has been in contact with concerning the care of the ward. The pleadings do not allege that appellee trustee contracted with appellant Department for the care of the ward, nor has the trustee been enriched by appellee’s services. The guardian might contest the amount or may wish to plead a statute of limitation to some or all of the alleged past due account, or may wish to question jurisdiction. In short, the guardian is a necessary party to the suit on an open account which is allegedly due as a result of a contract between the guardian and appellee.

Reversed and remanded for entry of a decree consistent with this opinion.

Brown, J., not participating.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    ARKANSAS FIRE AND POLICE PENSION REVIEW BOARD v. R.E. STEPHENS, et al.
    91-265
    832 S.W.2d 239
    Supreme Court of Arkansas
    Opinion delivered June 8, 1992

      Winston Bryant, Att’y Gen., by: Mary B. St allcup, Senior Asst. Att’y Gen., for appellant.

      Kaplan, Brewer, & Maxey, P.A., by: Philip E. Kaplan and Silas H. Brewer, Jr.; and Tom Carpenter, City Attorney, by: Melinda S. Raley, for appellees.
   Steele Hays, Justice.

Appellees are former members of the Little Rock Fire Department, sixty years of age and over who retired before July 1, 1987, with more than twenty-five years of service. Appellant is the Arkansas Fire and Police Pension Review Board (the “Board”). Appellees brought this class action for declaratory relief against the City of Little Rock Firemen’s Relief and Pension Fund and Arkansas Fire and Police Pension Review Board to determine whether Act 878 of 1987 [Ark. Code Ann. § 24-11-826 (1987) and Ark. Code Ann. § 24-11-432 (1987)] applies to them and other retirees. Act 878 provides an increased retirement benefit based on the number of years of service in excess of twenty-five years.

The Little Rock Pension Fund agreed that Act 878 was applicable to appellees and announced it was ready to pay such additional benefits when ordered to do so. The Board controverted, arguing that under the rule of prospectivity Act 878 had no application to the appellee.

By competing motions for summary judgment the Board and appellees agreed that no issues of fact existed, the only question being one of law. The trial court in a letter opinion denied the Board’s motion and granted the motion of the appellees, holding they were eligible for increased benefits as provided under Act 878. The Board has appealed, alleging that the trial court erred in requiring a retroactive application of Act 87 8. We agree with that contention and accordingly the order appealed from is reversed.

Act 878, Section 1 (a) reads as follows:

Beginning July 1,1987, in addition to the monthly pension benefits as set forth in Act 491 of 1921, as amended, and Act 250 of 1937, as amended, for those policemen and firemen hired prior to January 1,1983 and who continue to work beyond their twenty-fifth (25th) year, the member shall receive at age sixty (60) and thereafter a benefit on the amount equal to 1.25 % of final salary attached to the rank which he may have held in the department preceding the date of such retirement times the number of years of service in excess of twenty-five (25) years up to a maximum total benefit of seventy-five percent (75 %) of final salary.

The Board argues that statutes are to be construed as having only prospective operation unless a contrary intention by the legislature is expressly declared or necessarily implied. Gannett River States Publishing Co. v. Arkansas Judicial Discipline & Disability Commission, 304 Ark. 244, 801 S.W.2d 292 (1990); Arkansas Rural Medical Practices Student Loan and Scholarship Board v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987); Abrego v. United Peoples Federal Savings & Loan, 281 Ark. 308, 664 S.W.2d 848 (1984). Citing United States v. Security Industrial Bank, 459 U.S. 70 (1982), the court in Gannett declared that statutes apply prospectively unless a retroactive operation is “the unequivocal and inflexible import of the terms and manifest intention of the legislature.”

Here, as it did below, the Board relies on two cases involving pension statutes. Snuggs v. State Employees Retirement System, 241 Ark. 402, 407 S.W.2d 933 (1966) and Cross v. Graham, 224 Ark. 277, 272 S. W.2d 682 (1954). In Snuggs the court referred to “the usual presumption against retroactive legislation,” and in Cross, we recognized a course of action by the legislature in pension enactments to make express provision for retirees if that was the legislative intent.

Appellees submit that pension statutes are to be liberally construed. Looper v. Gordon, 201 Ark. 841, 147 S.W.2d 29 (1941). They urge as well that it is unnecessary to give the act retroactive operation to sustain their position. Act 878, they maintain, simply applies from its date of beginning to retired and active firefighters alike, who are otherwise eligible. Nor do they admit to any ambiguity in the act which would permit reference to the title of the enactment for guidance. Commercial Nat’l Bank v. Children’s Hosp., 256 Ark. 1028, 511 S.W.2d 640 (1974). It is of first importance to the appellees to avoid reference to the act’s title because its language is distinctly converse to the interpretation they propose. The title declares Act 878 is “to create an incentive for policemen and firefighters to remain in service after their twenty-fifth year by providing enhanced retirement benefits. . . .” In that regard it is immediately apparent that an incentive to promote longevity of service is not fostered by a monetary reward to those whose service has already ended. Only those presently in service can be prevailed on “to remain in service” and, hence, be motivated to extend such service. Nor can we agree that the act can be interpreted compatibly with the rule of prospectivity without limiting its effective application to those persons actively employed as of July 1, 1987.

Whether we look to the title or not, neither by express provision nor implication, does the act suggest that retroactivity is the intended result. It purports to apply to those individuals hired prior to January 1,1983, “and who continue to work beyond their twenty-fifth year.” The usage is clearly in the present tense, and it would require a distortion of the language to reach the result appellees favor. Beyond that, the act proceeds to direct that those policemen and firemen who continue to work “shall receive” the emolument prescribed in the act. Such words, as noted in the Cross case, “are forward-looking in their operation, and envisage the attachment of certain rights to a pensionable status to be achieved in the future.” Cross v. Graham, supra, at 282.

The chancellor sought to distinguish the Cross case, pointing out that Act 878 does not amend prior law and contains no specific language limiting the class of firemen who are to receive the increased benefits. Of course, if the act satisfied the latter aspect it would provide its own solution. As to the former, it is true the act examined in Cross was amendatory, whereas Act 878 is not, but we do not regard that as controlling. It is clear Act 878 affects existing formulae for determining benefits to be paid to those who qualify after July 1,1987, and, more important, we read the Cross opinion to be a general endorsement of the proposition that legislation affecting pension rights should contain an express provision if it is to be construed as having retroactive operation.

As to the matter of liberal construction, that broad rule of construction has its established and proper place in the law, but is seldom conclusive per se. It is but one of several aids of statutory construction. N. Singer, Sutherland Statutory Construction § 58.01, at 70 (5th ed. Supp. 1992). Liberal construction may not defeat the evident legislative intent implicit in the act. Where, as here, that intent is reasonably apparent, we are governed by it.

Reversed.


text:
    Harvey DUENNENBERG, Warren Johnson, and the City of Fort Smith, Arkansas v. CITY OF BARLING, Arkansas
    92-132
    832 S.W.2d 237
    Supreme Court of Arkansas
    Opinion delivered June 8, 1992

      Dailey, West, Core, Coffman, & Canfield, by: Jerry L. Canfield, for appellants.

      Prior, Barry, Smith, Karber, & Alford, by: Gregory T. Karber, for appellee.
   Steele Hays, Justice.

This is an election contest. The City of Barling (appellee/defendant) proposed to annex eight sections of land and portions of another ten sections belonging to the federal government and lying in Fort Chaffee, Sebastian County (Greenwood District), Arkansas. In furtherance of that objective Barling adopted Ordinance No. 202 providing for a special election on June 11, 1991, to consider the proposed annexation. Three days later Ordinance No. 202 was repealed and replaced by Ordinance No. 203, the only difference being a correction in the metes and bounds description of the lands subject to annexation. Both ordinances called for an election on the identical date - June 11.

On July 10 the City of Fort Smith, Warren Johnson and Harvey Duennenberg (appellants/plaintiffs) filed this action alleging that Ordinance No. 202 and the election held pursuant thereto were null and void because the election did not include qualified electors living within the area of annexation, the lands did not meet the criteria in Ark. Code Ann. § 14-40-302(a)(l-5)(1987), and because Ordinance 202 did not contain a proper legal description.

Barling moved to dismiss the complaint, asserting that Ordinance No. 202 was repealed by Ordinance 203 and hence the complaint failed to state facts upon which relief could be granted. Arkansas R. Civ. P. 12(b) (6). The plaintiffs filed an amended and substituted complaint on July 25 challenging the validity of the election as provided under Ordinance No. 203. Barling moved to dismiss the amended complaint as not being filed within thirty days as provided in Ark. Code Ann. § 14-40-304 (1987). The circuit judge concluded the amended complaint was untimely and granted Barling’s motion. This appeal followed. Finding merit in appellants’ contentions, we reverse and remand for further proceedings on the substantive issues raised.

Citing Carter v. F. W. Woolworth Co., 287 Ark. 39, 696 S.W.2d 318 (19875) and Files v. Hill, 286 Ark. 106, 594 S.W.2d. 836 (1980), Barling urges that the face of the original complaint is flawed because of its reference to repealed Ordinance No. 202, hence, the amended complaint is a new cause of action.

If we could agree that the amended complaint raised a new cause of action, we would be obliged to affirm, as our cases regarding elections hold that an amendment to a complaint filed after the time for challenging an election is not permitted when a new cause of action is stated. Bizzell v. White, 274 Ark. 511, 625 S.W.2d 528 (1982); Jones v. Etheridge, 242 Ark. 907, 416 S.W.2d 306 (1967); Wilson v. Ellis, 230 Ark. 775, 324 S.W.2d 513 (1959); Moore v. Childers, 186 Ark. 563, 54 S.W.2d 409 (1932); Bland v. Benton, 171 Ark. 805, 286 S.W.2d 976 (1926). But we do not find that to be the case. We note, however, that paragraph 3(c) of the amended complaint alleges that Barling lacks the ability to provide significant municipal services to the area purportedly annexed. That allegation is not in the original complaint and enlarges on the cause of action timely instigated by Barling. '

We have said that election contests have no common law existence; they are solely the creatures of constitution or statute. Adams v. Dixie School District No. 7, 264 Ark. 178, 570 S.W.2d 605 (1978). The statute with which we are here concerned is Ark. Code Ann. § 14-40-304(a) (1987):

If it is alleged that the area proposed to be annexed does not conform to the requirements and standards prescribed in § 14-40-302, a legal action may be filed in the circuit court of the county where the lands lie, within thirty (30) days after the election, to nullify the election and to prohibit further proceedings pursuant to the election.

Appellants’ original complaint alleges that Ordinance No. 202 and the special election held on June 11, 1991, “is void and a nullity” for failing to comply with Arkansas statutes in the following respects:

a. The election held pursuant to Ordinance No. 202 did not include qualified electors living within the area proposed to be annexed.
b. The lands purportedly annexed by Ordinance No. 202 do not meet ány of the criteria of an annexable land set forth in Arkansas Code Annotated § 14-40-302 (a) (1-5).
c. The said Ordinance No. 202 fails to provide a complete and accurate description of those portions of the land purportedly annexed lying within Section 1,2, 3,4, 5, 6,7, 12,13 and 18 of Township 7 North, Range 31 West, and is thus invalid by reason of vagueness and indefiniteness.

We find nothing in § 14-40-304 or in Chapter 40 of the Code requiring that the enabling ordinance be identified or specifically challenged. The reference in the original complaint to Ordinance No. 202 could be excised without leaving the pleading eviscerated. The complaint identifies the special election held on June 11, 1991, and sets out the alleged flaws in the annexation procedure. That suffices in the context presented.

Appellee’s reliance on Jones v. Etheridge, Bizzell v. White and Files v. Hill, supra, is not persuasive. In those cases a cause of action was not stated in' the original complaint. And while appellee contends that the original complaint in this case must fail for the same reason, the argument rests entirely on the fact that the original complaint refers to Ordinance No. 202, rather than 203.

That objection stresses form over substance. While this court has recognized the necessity for strict limitations on the time for challenging an election, it has at once declared that statutes providing for election contests should be liberally construed to the end that compliance with election laws may be assured. Reed v. Baker, 254 Ark. 631, 495 S.W.2d 849 (1973); LaFarque v. Waggoner, 189 Ark. 757, 75 S.W.2d 235 (1934); Robinson v. Knowlton, 183 Ark. 1127, 40 S.W.2d 450 (1931).

We conclude that the original complaint, which was timely, was not deficient in stating a cause of action and the later amendment, which merely corrected an obvious error in the designation of the particular ordinance, was not essential to that cause of action.

Reversed and remanded for further proceedings.


author: Tom Glaze, Justice.

text:
    Robert Lee FELLOWS v. STATE of Arkansas
    CR 91-156
    828 S.W.2d 847
    Supreme Court of Arkansas
    Opinion delivered June 9, 1992

      Anne Orsi Smith, for appellant.

      Winston Bryant, Att’y Gen., by: Cathy Derden, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was charged with a series of burglary and theft offenses. At trial, he was convicted of four counts each of burglary and theft, and his sentences were set totaling one hundred years. Appellant’s sole point on appeal concerns the trial court’s order running appellant’s sentences consecutively instead of concurrently. He argues the trial court abused its discretion by accepting the jury’s recommendations on sentencing without commenting or explaining its decision to impose the consecutive sentences.

We are unable to reach appellant’s argument because he made no objection at the time his sentences were imposed. This court has repeatedly held that, where the record reflects a total absence of any objections after the jury’s findings and sentencing are read by the court, it will not consider issues of such nature raised for the first time on appeal. Williams v. State, 303 Ark, 193, 794 S.W.2d 618 (1990); Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989); Neal v. State, 298 Ark. 565, 769 S.W.2d 414 (1989); see also Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992). Therefore, we must affirm.


text:
    IN THE MATTER OF THE CONSERVATORSHIP OF Wilhelmine K. KUETEMAN (Now Deceased)
    92-3
    832 S.W.2d 234
    Supreme Court of Arkansas
    Opinion delivered June 9, 1992

      Karr, Hutchinson & Stubblefield, for appellant.

      Harper, Young, Smith & Maurras, for appellee City National Bank of Fort Smith.

      Pryor, Barry, Smith, Karber & Alford, for appellee Mavis Stipe.
   Tom Glaze, Justice.

This is a will contest case. Karlene Kueteman initiated this action contesting the validity of the will of her aunt, Wilhelmine (Minnie) Kueteman. Minnie never married, had no children and had outlived her parents, brothers and sisters. Mavis Stipe was a friend and companion of Minnie’s for nearly forty years, and she was the primary beneficiary under the terms of Minnie’s will. Karlene claims Mavis unduly influenced Minnie when Minnie executed her will and also asserts her aunt did not have the necessary testamentary capacity at the time of the will’s execution. After the trial court heard evidence bearing on both issues, it declared Minnie’s will valid and admitted it to probate. In this appeal, Karlene argues the trial court’s findings are clearly erroneous. We do not agree.

Probate cases are tried de novo on appeal, and this court does not reverse unless the findings of the probate judge are clearly erroneous, giving due deference to the superior position of the judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Baerlocker v. Highsmith, 292 Ark. 373, 730 S.W.2d 237 (1987). In our review, other pertinent principles warrant repeating before we discuss the facts in this case.

We first mention the well-settled rule that once the proponent of a will shows the will is rational on its face and has been executed and witnessed in accordance with the required statutory requirements, the party contesting the will’s validity has the burden of proving by a preponderance of the evidence that the testator lacked mental capacity or was unduly influenced at the time the will was executed. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1989); Gray v. Fulton, 205 Ark. 675, 170 S.W.2d 384 (1943). We next relate the recognized principle that the question of undue influence and mental capacity are so closely interwoven that they are considered together. See, e.g., Rose, 284 Ark. 42, 679 S.W.2d 180. If the maker of a will, or other instrument has sufficient mental capacity to retain in his or her memory, without promptings, the extent and condition of his or her property, and to comprehend how he or she is disposing of it, and to whom and upon what consideration, then he or she possesses sufficient mental capacity to execute such instrument. Id. Influence by a person over the maker of a will becomes undue so as to invalidate the will, only when it is extended to such a degree as to override the discretion and destroy the free agency of the testator. Baerlocker, 292 Ark. 373, 730 S.W.2d 237.

Here, Karlene specifically contends that Minnie lacked testamentary capacity to execute her will because she was in bad health at the time of the will’s execution and that Mavis exerted undue influence on Minnie by requesting that Minnie leave most of her estate to Mavis because Mavis was the only one who would take care of her. Our review of the record in light of the legal principles set out above reflect Karlene’s contentions are meritless.

Minnie first went to see attorney Robert Taylor about matters concerning her estate on September 10, 1987. At this time, she gave specific instructions to Taylor on how she wanted her will to be drafted, and Taylor testified that Minnie was a fairly forceful woman and knew exactly what she wanted to do. Because Minnie was unable to drive because of poor eyesight, Mavis took her to see the attorney and was present in the room during this first meeting. However, Taylor testified that Mavis did not talk much and only entered into the conversation when Minnie needed help remembering something. Minnie explained to Taylor that Mavis had been a longtime friend and neighbor who had cared for her and had been reliable, and that she wanted to reward her for her faithfulness. Later in their discussions, Taylor testified that he specifically asked if Mavis had pressured her in anyway, and Minnie replied, “Certainly not.”

Between the time Minnie instructed her attorney on the preparation of her will and the time the attorney had the will ready for her signature, Minnie’s health declined. Minnie had a stroke on September 17, 1987, and was hospitalized for a short time. While she was in the hospital, Minnie signed some deeds she had Taylor prepare and told him to go ahead and complete her will as soon as possible. During a trip to Florida in December of 1987, Minnie had a seizure and was hospitalized in Florida and later transferred by air ambulance to a hospital in Fort Smith. On February 11, 1988, Taylor took Minnie’s will to the hospital for execution but left without having it signed or witnessed because Minnie appeared to be sedated. On February 13, Minnie was discharged and returned home. Three days later, Taylor and his wife went to Minnie’s house where Minnie signed her will and the will was duly witnessed. Minnie stayed at her home until she suffered another stroke on October 3, 1988, and she eventually was admitted into a nursing home. She died on November 2, 1990.

While the record is clear that Minnie, an eighty-year old woman at the time of the execution of her will, had declining health, there is no proof that she did not possess the proper mental capacity to execute her will. In fact, the only evidence before this court is the attorney’s and his wife’s testimony to the contrary.

Further, we cannot say that the trial judge’s finding that Minnie was not under undue influence is clearly erroneous. While Mavis was in the room when Minnie first discussed the preparation of her will with her attorney, Mavis was not present during the execution of the will when Minnie reaffirmed her testamentary wishes. Even if Mavis had been in the room when Minnie executed her will, we have stated that the mere fact that a beneficiary is present when a will is made does not give rise to a presumption of undue influence. Reddoch v. Blair, 285 Ark. 446, 688 S.W.2d 286 (1985).

Karlene further argues that the fact that Minnie left the bulk of her estate to someone outside of the family shows that she was under undue influence from Mavis. She also points out that Minnie had two prior wills executed in 1974 and 1985 that left her estate to her family. Karlene’s concerns are easily explained.

First, when Minnie’s prior wills were executed, some of her sisters were still living, and a witness testified that after her last sister died in 1987, Minnie expressed concern over getting her affairs in proper order. Moreover, this court has recognized that a will is usually considered “unjust and unnatural” when a testator leaves her estate to strangers to the exclusion of the natural objects of her bounty without any apparent reason. Reddoch, 285 Ark. 446, 688 S.W.2d 286. However, we also have stated that a will cannot be said to be unnatural because a testator preferred one for whom she had developed a close and affectionate relationship. Id.

Here, Karlene lived in California and saw her aunt usually once a year at Christmas time. Mavis lived with Minnie and had been her friend, caretaker and companion for nearly forty years. Minnie and Mavis owned cars, a boat and a lake house together. In short, we see nothing in the record to indicate that the will was “unjust or unnatural.” Further, we note that Karlene was not forgotten in her aunt’s will; several items of personal property were left to Karlene in the will and also a $25,000 certificate of deposit was made payable to Karlene upon Minnie’s death.

Lastly, we note that before Minnie’s death, Karlene had a conservatorship established because she felt Mavis was misusing Minnie’s money. There is no evidence of Mavis misusing any funds. In fact, the banker in charge of the conservatorship testified that Mavis was very cooperative, and the bank found no evidence of misuse of funds.

In sum, we cannot say that the trial court’s findings that Minnie had the proper testamentary capacity to execute her will and that she was not under undue influence are clearly erroneous. We affirm.


author: Donald L. Corbin, Justice. Robert H. Dudley, Justice,

text:
    Barron BATES, et al. v. Perry MIKLES III, et al.
    92-276
    832 S.W.2d 225
    Supreme Court of Arkansas
    Opinion delivered June 8, 1992
    [Rehearing denied July 13, 1992.]

      Witt Law Firm, P.C., by: Ernie Witt, for appellant.
   Donald L. Corbin, Justice.

On November 6, 1990, the Southern Judicial District of Logan County, Arkansas, held a local option election in which the electorate could vote either “for” or “against” the manufacture and sale of intoxicating liquors. The Southern District voted against the manufacture and sale of intoxicating liquors, and the Board of Election Commissioners of Logan County certified the election result.

On November 19,1990, appellant Bates and other plaintiffs filed an election contest in Logan County Circuit Court, Southern District, challenging the legality of the local option election and the election’s result. The plaintiffs first alleged that the election was illegal because it was not a countywide election. Plaintiffs further alleged that the election was illegal because Susan Hixson, a member of the election commission, worked as an administrative assistant to a county judge and was ineligible to serve as an election commissioner. The circuit court mandated the election, and we affirm.

The legality of a county subdivision’s local option election depends on the countywide liquor law in effect at the time of the local option election. Once an entire county has voted to be “dry,” no portion of the county may hold an independent local option election. Ark. Code Ann. §§ 3-8-305(a)(2) (1987); 3-8-307 (1987); Tabor v. O’Dell, 212 Ark. 902, 208 S.W.2d 430 (1948); Denniston v. Riddell, 210 Ark. 1039, 199 S.W.2d 308 (1947). However, in a “wet” county, an enumerated subdivision of the county may vote itself “dry,” and only a subsequent vote by that subdivision can affect the status of the subdivision’s liquor law. Ark. Code Ann. § 3-8-305(a)(3) (1987).

In this case, we do not address the merits of appellants’ argument concerning the absence of a countywide vote on the liquor issue because appellants failed to establish the status of Logan County’s liquor law at the time of the Southern Judicial District’s local option election. Appellants’ complaint alleged that Logan County was a “moist” county in November 1990, permitting only the sale and manufacture of beer and light wine. The election commission’s answer denied the paragraph in appellants’ complaint containing the allegation of Logan County’s liquor law, and no proof of the county’s liquor law was offered at trial.

Appellants assert in their reply brief that the trial court took judicial notice of the fact that Logan County was “dry” with exceptions for the manufacture and sale of beer and light wine. However, the record reflects no such finding by the trial court. Rather, the transcript indicates that the trial court itself was confused about the status of Logan County’s liquor laws prior to the 1990 local option election. In addressing appellants’ argument on this point, the trial court relied on its own prior decision in a Logan County case. While discussing the prior case, the court stated, “In that particular case, as I recall, the county wide sale of liquor was contrary to the laws, well contrary to the laws at that time, . . . Apparently, it was the impression of the Court at that time that Logan County had prohibited the countywide sale of liquor, however that’s interpreted.” (Emphasis added.) The court later refused to void the local option election of 1990 with language erroneously suggesting that the geographic size of the voting electorate (the Southern Judicial District) was dispositive of the election’s legality.

We affirm the ruling of the trial court because it achieved the correct result regardless of its reasoning. Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992). Because appellants failed to offer any proof of the status of the Logan County liquor law at the time of the local option election, they did not establish that the absence of a countywide election entitled them to relief.

We also find no merit to appellants’ cursory argument that the local option election was illegal because Susan Hixson, an administrative assistant to a Logan County judge, served as a member of the election commission. Appellants offer no authority to support this argument, nor do they make any specific allegations against Hixson. As we do not consider assignments of error unsupported by convincing argument or authority, Brooks v. Baker, 308 Ark. 672, 826 S.W.2d 284 (1992); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977), we reject appellants’ argument regarding Hixson’s alleged ineligibility.

Accordingly, we affirm the trial court’s mandate of the local option election.

Dudley, J., concurs.

Robert H. Dudley, Justice,

concurring. I concur in the result. However, unlike the majority opinion, I would reach appellants’ argument that it was illegal to hold the election in only a part of the county. Such an election comports with the applicable statutes.

The majority opinion does not address the issue because, it says, the status of the county is not shown by the record. I am unable to agree. Paragraph XIV of the amended complaint provides: “That the contestant-plaintiff, Helen Bates, is a licensee by the Arkansas Alcoholic Beverage Control Board, for the sale of off-premises beer, located in Blue Mountain Township, which is located in the Southern Judicial District of Logan County.” Paragraph 15 of the answer admits the above paragraph of the amended complaint. In addition, the statements of the case contained in both briefs filed in this court, and the argument portion of both briefs, recite that the county has townships in which beer and light wine are sold. Thus, it seems clear to me that the record reflects that beer and light wine are sold in the county. It is true that appellants conclude that the county is dry and appellees conclude that it is wet, but those are conclusions of law based on the record, and we are able to determine which conclusion is correct.

Under the controlling statute, Ark. Code Ann. § 3-8-305 (1987), which is a part of an initiated .act, the law is skewed in favor of the drys. Under the statute, once a county has voted dry, no subdivision of the county can vote wet. However, if the county has voted wet, prohibition can be voted in subdivision by subdivision and, in addition, a wet vote can be limited to the sale of beer and light wine. Ark. Code Ann. § 3-8-401 (1987). Here, it is undisputed that the sale of beer and light wine was allowed in Blue Mountain Township. Thus, the county was wet, and the election could validly be held to dry up only a part of the county.

Appellants’ clever argument is that the county was “moist,” instead of “wet,” and therefore came under the “dry” classification. The argument contains the assumption that “moist” is “dry,” and that assumption is fallacious. Dry is classified as dry, and since the county was not dry, prohibition could be voted in precinct by precinct, or township by township. Appellants’ argument is comparable in logic to that of one who could look out his window and see that it is not raining, but instead looks out and sees that it is cloudy, knows that it rains when it is cloudy, and argues that it is now raining.

I would affirm the trial court on the merits of all points of appeal.


author: Donald L. Corbin, Justice. Robert L. Brown, Justice, Donald L. Corbin, Justice.

text:
    John “Bo” BESS v. Dottie HERRIN, Individually, as Administratrix of the Estate of Steven Maurice Herrin, Deceased, and as Next Friend of Randall Scott Herrin, and Steve Herrin, Jr.
    91-244
    831 S.W.2d 907
    Supreme Court of Arkansas
    Opinion delivered June 8, 1992
    [Supplemental Opinion on Denial of Rehearing July 20, 1992.]

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: Robert E. Hornberger, for appellant.

      Mark S. Cambiano, for appellee.
   Donald L. Corbin, Justice.

Appellant, John “Bo” Bess, appeals a judgment of the Conway Circuit Court entered in a wrongful death case pursuant to a jury verdict in favor of appellee, Dottie Herrin, as administratrix of the estate of Steven Maurice Herrin, Sr., and as next friend of Steve Herrin, Jr., and Randall Scott Herrin. Appellant asserts seven points of error, one of which is the trial court’s failure to grant a directed verdict on the issue of negligence. We agree that the trial court erred in not directing a verdict for appellant on the issue of negligence. Therefore, we reverse and dismiss.

Appellant is the owner of a tractor-trailer truck he uses to haul timber. On December 19, 1986, he was not able to make his usual run to haul a load of logs. Wayne Herrin, appellant’s brother-in-law who was living with appellant at the time, drove appellant’s truck to haul the logs from Mulberry, Arkansas, to Morrilton, Arkansas. Appellant’s other brother-in-law, Steve Herrin, made the trip with his brother Wayne. Steve Herrin was run over and killed by appellant’s truck when Wayne Herrin stopped the truck to check its brakes before descending a steep hill with the full load of logs.

While arguing that the trial court should have directed a verdict on the issue of negligence, appellant recognizes appellee has two theories of appellant’s liability. One, appellant supplied Wayne Herrin with a truck in an unsafe condition. Two, Wayne Herrin acted within the scope of his authority as appellant’s agent and negligently caused the decedent’s death by improperly applying the brakes. On appeal, appellant claims there is insufficient evidence of these two theories of liability to submit the issue of negligence to the jury. He argues there is simply no evidence of negligence and it is improper to submit the issue to the jury with evidence only that an accident occurred.

The following evidence of negligence was presented at trial. Appellant, as the owner of the truck, testified that he had previously had a problem with the brakes on the truck; that he adjusted the brakes every day; that he had driven the truck on the day prior to the accident and nothing was wrong with the truck; and that he did not adjust the brakes on the day of the accident. Wayne Herrin, as the driver of the truck on the day in question, testified that the brakes worked properly on the trip to Mulberry, Arkansas, where he picked up the load of timber; that on the return trip to Morrilton, Arkansas, because the brakes felt funny, spongy, and like they were not catching properly, he stopped to check the brakes before descending a steep hill; that he set the truck’s brakes; that he and the decedent exited the truck to check the brakes; and that the truck began to roll very slowly. Both appellant and Wayne Herrin stated that if the brakes were set on the truck, then the truck should not have moved. Wayne Herrin stated that when the truck began to roll, he entered the truck, found that the brakes were still set, hit the foot brake, reset everything, and the truck stopped rolling. Wayne Herrin testified that it was at this point that he realized his brother Steve was hurt. Wayne Herrin stated he thought his brother was instantly killed; from what he could see his brother’s hair must have been caught under the wheel and there was nothing left of him from the chest up. Appellant testified that he drove the truck after the accident and never had any trouble with the brakes.

When reviewing the denial of a motion for directed verdict, we give the proof its strongest probative force, examine it most favorably to appellee, and affirm the trial court’s denial if there is any substantial evidence to support the verdict. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987). Viewing the foregoing evidence in such light, we are unable to find any substantial evidence to support the jury’s verdict of appellant’s negligence.

There is evidence that an accident occurred. However, as appellant correctly points out, negligence cannot be presumed from the mere happening of an accident. Missouri Pacific R.R. v. Baum, 196 Ark. 237, 117 S.W.2d 31 (1938). Except in cases where the doctrine of res ipsa loquitur applies, negligence must be proven. Id. Here, there was proof that the truck rolled over the decedent; there was proof that the driver set the brakes; and there was proof that the truck had previous brake problems. There was even testimony that if the brakes were set, the truck would not have rolled unless something was wrong with the truck. However, there was simply no evidence to support either of appellee’s theories of negligence;,there was no evidence that Wayne Herrin negligently applied the brakes, nor was there evidence that something was wrong with the truck, i.e., that appellant supplied the truck to the Herrins in a unsafe condition.

In view of the lack of evidence as to what caused the truck to roll, either the driver’s imputed negligent application of the brakes or the unsafe condition of the truck, we conclude there is no substantial evidence to support the jury’s verdict. It was error to submit this case to the jury and to deny appellant’s motion for directed verdict. The judgment is reversed and the cause dismissed.

Hays and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. Wayne Herrin testified at trial that the brakes of the logging truck were “spongy” and “didn’t feel right” on the hills and curves. Because of this, he and his brother, Steve Herrin, stopped to check them. Wayne Herrin, who was driving, testified that he “set” the brakes after stopping the truck. This process involved pushing two lever's on the dash — one for the tractor and one for the trailer — and pulling one lever on the steering column which operated as a parking brake for the trailer. After the two men got out of the truck, it began to roll, which caused the death of Steve Herrin.

Wayne Herrin further testified that if the brakes had been set correctly, the truck should not have moved. After the accident, he said, he jumped in the passenger side of the truck, “climbed across, reapplied the brakes and reset all — all the levers.” Herrin did testify that setting the brakes is something you do automatically. But he admitted that the truck never should have moved after the brakes were set or applied the first time, and after he reset the brakes following the accident, the truck never moved again.

The appellant, John “Bo” Bess, agreed that there was no way the truck could have moved had the brakes been set unless something was broken. He testified that he drove the truck after the accident, and nothing was wrong with it.

The other scenario espoused by the appellees is that Bess had failed to adjust the brakes that morning before the trip, and the truck was supplied to the Herrins in an unsafe condition. Under either the scenario where Bess’ agent, Wayne Herrin, negligently set the brakes or the scenario where Bess provided an unsafe vehicle, Bess was in control and is responsible.

Prosser in his distinguished treatise has this to say about inferred negligence:

It is never enough for the plaintiff to prove merely that he has been injured by the negligence of someone unidentified. Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant. On this too the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where it is clear that it is at least equally probable that the negligence was that of another, the court must direct the jury that the plaintiff has not proved his case. The injury must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that he was responsible for all reasonably probable causes to which the accident could be attributed.
As to dead mice, and the like, in capped bottles, the possibility of deliberate tampering by a stranger has been ruled out as too unlikely, in the absence of some evidence to indicate it. The same kind of question arises when the defendant’s car, parked on the side of a hill, is found in motion shortly afterward. Various explanations suggest themselves, including the same tampering stranger; but it can still be found that the most probable one is negligence in parking the car.

Prosser, Law of Torts, § 39, pp. 218-219 (4th Ed. 1971) (Emphasis added.); see also “Presumption of Negligence and Application of Res Ipsa Loquitur Doctrine In Action for Injury or Damage Caused By Accidental Starting Up of Parked Motor Vehicle,” 55 ALR3d 1260, et seq. (1974).

From the testimony and the circumstances, the jurors could have reasonably inferred that Bess’ agent, Wayne Herrin, did not correctly set the brakes. The jurors, of course, had the opportunity to observe Wayne Herrin’s demeanor on the witness stand on what is largely a credibility issue. Or the jurors could have inferred that the truck was unsafe to begin with. In either case, Bess was responsible for the instrumentality causing the accident. To hold otherwise improperly places on the estate of Steve Herrin the obligation to establish how Bess’ agent, Wayne Herrin, parked the truck. See Gleason v. Jack Alan Enterprises, Inc., 374 A.2d 408 (Md. Ct. App. 1977). Of course, the estate is limited in this regard to the testimony of Wayne Herrin.

In Gleason, a delivery truck without a driver had rolled down a hill and struck a pedestrian in Silver Spring, Maryland. The driver told the investigating police officer that he had set the emergency brake. There was no evidence that any third party had tampered with the truck. The trial court, nevertheless, directed a verdict in favor of the truck’s owner.

The Maryland Court of Appeals reversed and wrote in part:

It seems clear to us that the lapse of time between the parking of the vehicle and its unattended motion from its parked position is only one of many factual considerations which a jury may consider in determining whether the vehicle at the time of the occurrence was in the exclusive control of the defendant. The trial court, by its ruling, imposed on the [plaintiff] the obligation to produce testimony to establish the manner in which the vehicle had been parked and the time which it had remained parked before it struck the [plaintiff]. We have found no case which imposes such a burden on the injured party nor have counsel cited any such authority to us. Where, as in this case, that information is peculiarly within the knowledge of the [defendant] or its employees, and, therefore, much more readily ascertainable by the [defendant] than by the [plaintiff], the imposition of the burden suggested by the trial court would in effect emasculate the legal significance of res ipsa loquitur and require the [plaintiff] to surrender the favorable inference which arises in those cases where the doctrine applies.

Gleason, 374 A.2d at 413-414.

No evidence of any tampering with the truck by a third party or any other reasonable cause for the accident exists. Moreover, the accident occurred after both men were out of the truck and almost immediately after the brakes were supposedly set. The truck would not have moved without some negligence on the part of Bess or his agent.

JULY 20, 1992

The net effect of this decision is to take the matter away from the jury, which is comparable to a directed verdict. Yet, authority abounds for submitting cases of driverless vehicles to the jury for resolution. See, e.g., Senase v. Johns, 420 N.E.2d 1104 (Ill. App. 1981 ) Knippenberg v. Windemuth, 238 A.2d 915 (Md. Ct. App. 1968); Gresser v. Taylor, 150 N.W.2d 869 (Minn. S. Ct. 1967); Lewis v. Wolk, 312 Ky. 536, 228 S.W.2d 432 (1950); Bobbitt v. Salamander, 221 S.W.2d 971 (Mo. Ct. App. 1949); Bacon v. Snashall, 238 Mich. 457, 213 N.W. 705 (1927). I would affirm the jury’s verdict.

Hays, J., joins.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: Robert E. Hornberger, for appellant.

Mark S. Cambiano, for appellee.

Donald L. Corbin, Justice.

Appellee petitions for rehearing of this case. In her petition, appellee relies on the concept of inferred negligence and the doctrine of res ipsa loquitur. Because we made no errors of law or fact in deciding this case, we deny appellee’s request for rehearing. However, because of appellee’s reliance on the doctrine of res ipsa, it occurred to us that our opinion in this case was in need of clarification on that aspect. Therefore, we write this supplemental opinion to clarify the application of res ipsa to this case.

We must first point out that appellee did not rely on the doctrine of res ipsa at trial. There are certain elements of res ipsa that must be proven, namely that the injury was caused by an instrumentality under the control of the defendant, that the accident ordinarily would not happen in the absence of the defendant’s negligence, and that there is no evidence of other causes of the accident. Stalter v. Coca-Cola Bottling Co. of Ark., 282 Ark. 443, 669 S.W.2d 460 (1984). The abstract does not indicate that appellee offered any evidence of liability based on the foregoing elements of res ipsa. Moreover, in her brief to this court, appellee did not argue that res ipsa should apply to this case.

We have consistently held that we do not address arguments raised for the first time on appeal. Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992). Appellee did not even argue the application of res ipsa in her appellate brief. As res ipsa is not a jurisdictional argument, it is not an issue we are obligated to raise on our own. 0See Quality Ford, Inc. v. Faust, 307 Ark. 371, 820 S.W.2d 61 (1991). In addition, we have held that res ipsa is not applicable to an alleged defective brake when the brake mechanism worked properly after the accident, was not destroyed, and was available for inspection after the accident. Ford Motor Co. v. Fish, 232 Ark. 270, 335 S.W.2d 713 (1960). Thus, we thought the doctrine of res ipsa was obviously inapplicable to this case. Hence our language in the majority opinion, “Except in cases where the doctrine of res ipsa loquitur applies, negligence must be proven.” Bess v. Herrin, 309 Ark. 555, 557, 831 S.W.2d 907 (1992). What we intended to communicate in that sentence was that the present case was not one in which the doctrine of inferred negligence known as res ipsa loquitur applies.

Brown, J., not participating.


author: Donald L. Corbin, Justice. Glaze, J.,

text:
    MEDALIST FORMING SYSTEMS, INC. v. MALVERN NATIONAL BANK
    91-363
    832 S.W.2d 228
    Supreme Court of Arkansas
    Opinion delivered June 8, 1992

      Dover & Dixon, P.A., by: Monte D. Estes, for appellant.

      Glover, Glover & Roberts, by: Mark Roberts, for appellee.
   Donald L. Corbin, Justice.

Medalist Forming Systems, Inc. (Medalist) appeals an order entered in a receivership action authorizing the liquidation of certain property in possession of Concrete Curing and EPOX Products Company (CCEP), and ordering the proceeds of the liquidation applied to CCEP’s debt to appellee Malvern National Bank (Bank).

The bank brought the receivership action in Hot Spring County Chancery Court after CCEP defaulted on two promissory notes held by the bank that secured interests in CCEP’s accounts receivable and inventory. The bank had perfected its security interests by filing financing statements with the Hot Spring County Clerk and the secretary of state. The chancellor appointed a receiver, who petitioned the court for the authority to liquidate all materials located in the CCEP factory, with the proceeds to be applied to CCEP’s bank debt. The petition was subject to notification of and the right to objection by any known party claiming an interest in CCEP’s factory materials. Upon receiving notification, appellant Medalist, a concrete forming business, asserted ownership to several items the receiver had designated for sale and objected to the proposed liquidation on grounds that CCEP was a mere bailee for the goods at issue.

The chancery court held a hearing on appellant’s objection on August 28, 1991. Medalist presented evidence that it had reached a verbal “toll blending” agreement with CCEP in June 1991, whereby Medalist would purchase raw materials which would then be delivered to CCEP and processed by CCEP into finished products. Lindon Duncan, president of CCEP, testified that after CCEP processed the raw materiáls, CCEP returned the finished products to Medalist whereupon Medalist paid CCEP a processing fee. Medalist also introduced purchase orders and other documents reflecting Medalist’s purchases of raw materials, and invoices to Medalist from CCEP for the reworking and processing of raw materials.

The bank presented evidence that the business dealings between Medalist and CCEP and the operational practices of CCEP consistently indicated that CCEP possessed rights in all of the inventory located at the CCEP facility. Rita Turner, an assistant vice president in charge of loan reviews at the bank, testified that she reviewed CCEP’s inventory list and balance sheet in June 1991. The inventory list, introduced as “Plaintiffs Exhibit 9,” includes products labeled with the “Meda” prefix associated with Medalist. Turner testified that all of the products on the inventory list, including those with the “Meda” prefix, were represented to the bank as being the inventory of CCEP. The bank also introduced CCEP invoices dated June 11, 1991, showing sales of raw materials to Medalist. Subsequent CCEP invoices, dated through July 1991, reflect CCEP deliveries of products labeled with the “Meda” prefix to various companies.

Floyd Parker, president and CEO of the bank, testified that he was informed of a possible arrangement between CCEP and Medalist during a meeting at the bank with Mr. and Mrs. Duncan. Parker testified that the meeting was primarily for the purpose of discussing the status of CCEP’s inventory and accounts receivable, and that he did not recall discussion of a “toll blending agreement.” Duncan sent Parker the inventory list that included the “Meda”-labeled products in response to Parker’s request for documentation of CCEP’s inventory.

Jeff Davis, the court-appointed receiver, testified that he conducted an inventory at the CCEP facility on August 7, 1991. According to Davis, the inventory at the CCEP facility was not segregated so as to enable an outsider walking into the facility to determine that any of the inventory belonged to a party other than CCEP. Davis testified that a CCEP employee informed him that certain materials belonged to Medalist. However, Davis included all of the materials on one inventory list because he did not see any indication that the materials did not belong to CCEP.

At the conclusion of the hearing, the chancellor entered an order subjecting all of the unsold pre-receivership inventory and the accounts receivable to the perfected security interests of the bank. The order found that CCEP and Medalist never reached a “complete ascertainable toll blending agreement,” and that an inspection of the CCEP factory would have indicated to a third party that the materials being processed were the inventory of CCEP. The order further found that following the alleged agreement, CCEP continued to ship products to its customers as if the customers were purchasing from CCEP. The chancellor ruled that Ark. Code Ann. § 4-2-326 (Repl. 1991), a.codification of U.C.C. § 2-326, applied in this case, and that doubts as to the nature of CCEP/Medalist arrangement should be resolved in favor of the creditor bank as opposed to Medalist, the party claiming a bailment.

While our review of chancery cases is de novo, we recognize the chancellor’s superior position for the purpose of weighing issues of credibility, and we do not reverse findings of fact unless the chancellor’s findings are clearly erroneous. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991).

On appeal, appellant Medalist relies on two arguments. First, appellant argues that the chancellor erred in relying on section 4-2-326 because the raw material delivered to CCEP was not delivered “for sale.” Second, appellant argues that CCEP acted as “bailee” for the materials at issue, and therefore, the appellee bank’s security interests never attached to the materials. Both of appellant’s arguments rest on a premise which the trial court specifically found not to be true — namely, the premise that CCEP and Medalist conducted business pursuant to a “toll blending agreement.” We affirm because we cannot say that the chancellor’s contrary finding was clearly erroneous.

The evidence presented at the liquidation hearing is sufficient to support the chancellor’s finding that CCEP and appellant did not arrive at a “complete ascertainable [toll blending] agreement.” The testimony and documentary evidence regarding the invoices indicated that subsequent to the parties alleged agreement, CCEP continued to ship the alleged Medalist products to CCEP’s inventory practices, is inconsistent with an arrangement whereby Medalist retained an interest in the materials delivered to CCEP’s facility.

The testimony of Juan Arriola, the Medalist comptroller, also supports the chancellor’s finding that Medalist and CCEP never reached a complete agreement. When questioned as to whether Medalist had reached either a verbal or written toll blending agreement with CCEP, Arriola responded, “Your Honor, I cannot answer that with a yes or no.” Upon further questioning, Arriola explained that one reason Medalist and CCEP had not signed an agreement was because Medalist could not guarantee the volume demanded by CCEP. When asked again whether Medalist had an agreement with CCEP, Arriola answered, “No.”

Subsection (3) of section 4-2-326 provides:

Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return.

Subsection (2) provides that such goods are subject to claims of the buyer’s creditors while in the buyer’s possession.

Despite appellant’s contrary assertions, the afore-mentioned evidence, particularly the invoice, inventory, and shipping evidence, supports the conclusion that the raw materials delivered to CCEP by Medalist were delivered “for sale.” The arrangement between CCEP and Medalist also meets the other two requirements set out in subsection (3) for deeming the goods to be on sale or return and therefore subject to the claims of the buyer’s creditors. Namely, Medalist delivered and materials at issue to CCEP, a company that dealt in the same types of materials under a name other than Medalist.

Because the goods delivered by Medalist are deemed to be “for sale” under subsection (3), the bank should prevail regardless of whether the arrangement between CCEP and Medalist constituted a bailment. We construe subsection (3) of section 4-2-326 so as to resolve all reasonable doubts as to the nature of the transaction in favor of the general creditors of the buyer. U.C.C. § 2-326 cmt. 2; Simmons First State Bank v. Wells, 279 Ark. 204, 650 S.W.2d 236 (1983). In Simmons, we used this rationale to hold that an arrangement may constitute a bailment yet be considered a sale for purposes of determining superior rights in the materials at issue. “With regard to the rights of creditors, it is irrelevant whether the transaction between the two parties was a bailment or a sale if the provisions of [§ 4-2-326(3)] are also satisfied.” Id. at 209, 650 S.W.2d at 239.

The concern in this case, as in Simmons, is the protection of the receiving party’s creditors. When goods are “deemed” to be “on sale or return” under section 4-2-326(3), the only “escape” provisions relevant to this case that the delivering party may rely on to obtain priority over the receiver’s creditors are parts (a) and (c) of subsection (3). These provisions allow a party in Medalist’s position to gain priority over third party creditors by either evidencing its interest with a sign or filing under the provisions of Article 9. If a delivering party does not avail itself of any of the options under subsection (3), the goods at issue are subject to the claims of the receiving party’s creditors. Section 4-2-326(2).

The foregoing rule is applicable even in a transaction that is not a true sale at all given that the uniqueness of section 4-2-326 is that it applies to transactions that do not fall within the everyday connotation of the word “sale.” See Simmons at 210, 650 S.W.2d at 239. “The section’s importance lies primarily in the role it plays, along with the notice provisions of article nine, in giving disclosed claims to property priority over secret claims. To encourage disclosure of in rem claims is a central feature of any well-reasoned system of commercial law.” Id. at 210, 650 S.W.2d at 239, quoting In Re KLP, Inc. Fin. Co. of Am. v. Morris, 1 B.R. 256 (Bkrtcy. N.D. Ga. 1980). Accordingly, when such claims are not disclosed in accordance with Article 9, the delivery party does not have priority over the claims of the receiving party’s creditors. Id. This policy of interpreting section 4-2-326 so as to resolve ambiguous arrangements in favor of disclosed creditors also accords with Professors White and Summers’ interpretation of U.C.C. § 2-326:

In our view the courts should focus upon the expectation of third party creditors who might deal with the processor. If the owner has enabled the processor to mislead these third parties by the processors’ ostensible ownership, the owner should pay that price.

White and Summers, Uniform Commercial Code (3d ed.) § 25.5.

In this case, Medalist could have protected its interest by filing under Article 9 or by posting a sign evidencing its interest in the goods at CCEP. Its failure to take either action, however left the bank without knowledge of another claim to rights in CCEP’s inventory and accounts receivable. Given that failure, the U.C.C. policy of protecting disclosed creditors dictates that the bank receive priority over a party claiming priority based on an undisclosed, private agreement with CCEP.

Accordingly, we affirm the chancellor’s order in favor of appellee.

Glaze, J.,

concurring, on basis the chancellor’s finding is not clearly erroneous that the delivery of raw materials to CCEP was not a bailment and instead the materials were delivered so CCEP could sell them.

       (1) Unless otherwise agreed, if delivered goods may be returned by the buyer even though they conform to the contract, the transaction is:
      (a) A “sale on approval” if the goods are delivered primarily for use; and
      (b) A “sale or return” if. the goods are delivered primarily for resale.
      (2) Except as provided in subsection (3), goods held on approval are not subject to the claims of the buyer’s creditors until acceptance; goods held on sale or return are subject to such claims while in the buyer’s possession.
      (3) Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return. The provisions of this subsection are applicable even though an agreement purports to reserve title to the person making delivery until payment or resale or uses such words as “on consignment” or “on memorandum”. However, this subsection is not applicable if the person making delivery:
      (a) Complies with an applicable law providing for a consignor’s interest or the like to be evidenced by a sign; or
      (b) Establishes that the person conducting the business is generally known by his creditors to be substantially engaged in selling the goods of others; or
      (c) Complies with the filling provisions of the chapter on secured transactions (chapter 9 of this title).
      (4) Any “or return” term of a contract for sale is to be treated as a separate contract for sale within the statute of frauds section of this chapter (§4-2-201) and as contradicting the sale aspect of the contract within the provisions of this chapter on parol or extrinsic evidence (§ 4-2-202).
      (5) The provisions of this section shall not apply to the placement of works of fine art on consignment.


author: Donald L. Corbin, Justice.

text:
    Kerm POWERS v. Winston BRYANT, Attorney General of Arkansas
    91-164
    832 S.W.2d 232
    Supreme Court of Arkansas
    Opinion delivered June 8, 1992

      Griffin Smith, for appellant.

      Winston Bryant, Att’y Gen., by: Jeanette L. Hamilton, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Kerm Powers appeals the denial of his petition for a writ of mandamus directing appellee Attorney General Winston Bryant to prosecute an action to remove Altus “Shorty” Doshier from Doshier’s office as mayor of Yellville, Arkansas. Appellant argues that Ark. Const, art. 5, § 9 prohibits Doshier from holding office because Doshier was convicted in 1932 of the crimes of burglary and grand larceny.

On August 17, 1932, Doshier pled guilty to the offenses' of burglary and grand larceny. Doshier was seventeen at the time, and served seventy-six days confinement in the Arkansas Boys’ Industrial School. More than fifty years later, on May 1, 1984, Doshier filed a petition for writ of error in the circuit court of Marion County. The basis of Doshier’s petition was his assertion that he was not informed of the right to counsel at the time he entered his guilty plea in 1932. On July 29,1985, the Honorable John Lineberger granted Doshier a writ of error coram nobis setting aside Doshier’s 1932 convictions and declaring the 1932 convictions “null and void.” Judge Lineberger further ordered the reinvestment of all Doshier’s rights of which he was deprived or could have been deprived because of the 1932 felony conviction. Finally, Judge Lineberger ordered the sealing of the record containing the coram nobis proceedings.

On November 8, 1990, appellant Powers filed this petition for mandamus in Pulaski County Circuit Court. Powers alleged that Doshier’s 1932 convictions rendered Doshier ineligible to hold public office under Ark. Const, art. 5, § 9. This constitutional provision prohibits convicted felons from “holding any office or trust or profit in this state.” The trial court denied Powers’ petition on the basis that Powers petition constituted an impermissible collateral attack on the order entered by Judge Lineberger in the earlier coram nobis proceeding. We affirm.

The order entered by Judge Lineberger in the coram nobis proceeding explicitly declared Doshier’s 1932 convictions “null and void.” The order also contained language reinvesting Doshier with any rights of which he was deprived because of the convictions. Appellant Powers challenges Judge Lineberger’s order and urges us to hold that he is entitled to a writ of mandamus because Judge Lineberger’s order granting the writ of error coram nobis is a “void” order. According to appellant, Judge Lineberger’s order is “void” because the order is contrary to the standard set out in Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975) for when the granting of a writ of error coram nobis is proper. Appellant argues that Judge Lineberger’s action in granting the writ was “so blatant as to be literally ultra vires.” He further argues that the collateral attack rule should not prohibit us from reviewing Judge Lineberger’s coram nobis order because a constitutional issue is at stake.

We disagree with appellant’s assertion that the order entered by Judge Lineberger is a void order. When a judgment contains some defect which may become fatal and render it invalid, then it is only voidable, and until it is actually annulled, it has all the force and effect of a perfectly valid judgment. McDaniel v. Fort Smith & W. R.R. Co., 105 Ark. 5, 150 S.W. 135 (1912). Absent allegations of fraud or lack of jurisdiction, a judgment entered by a circuit court bears presumptive verity and may not be questioned by collateral attack. Adams v. Van Buren County, 200 Ark. 269, 139 S.W.2d 9 (1940). If the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, then the proceeding is a collateral attack, which will be successful only upon showing a lack of power. Pinkston v. Schuman, 210 Ark. 896, 198 S.W.2d 66 (1946).

In this case, appellant’s petition for a writ of mandamus depends largely on the overturning or impeachment of the order entered by Judge Lineberger in the coram nobis proceeding. However, the alleged defect in the coram nobis proceeding involves a question of law which could have been raised by the state on an appeal of that proceeding. As appellant does not allege either fraud or lack of jurisdiction in his collateral attack on the coram nobis proceeding, we reject his voidness argument and will presume that the writ of error coram nobis was properly granted. The question then becomes whether Ark. Const, art. 5, § 9 prohibits a citizen with a “null and void” expunged felony conviction from holding public office in this state.

Appellant argues that the mere “fact” of a prior conviction, regardless of whether the conviction has been expunged or voided, renders a citizen constitutionally ineligible to hold public office under art. 5, § 9. Appellant cites no authority to support his rigid constitutional interpretation, and we reject this argument based on the reasoning recently set out in Tyler v. Shackleford, 303 Ark. 662, 799 S.W.2d 789 (1990). In the Tyler case, we discussed the legal effect of expunction under the Federal Youth Corrections Act, and relied on decisions of the Fifth and Sixth Circuits holding the expungement under the federal act actually removed the fact of a conviction. We adopted the reasoning of the Fifth Circuit in holding that following a discharge under the federal act, “the disabilities of a criminal conviction are completely and automatically removed; indeed, the conviction is set aside as if it had never been.” Id. at 665, 799 S.W.2d at 790, quoting United States v. Arrington, 618 F.2d 1119 (5th Cir. 1980).

While appellant attempts to distinguish Tyler by pointing out that the Tyler case dealt with the effect of expunction under a federal law, we find the distinction irrelevant for purposes of this case. Judge Lineberer’s order granting the writ of error coram nobis clearly stated that Doshier’s 1932 convictions were “null and void.” As Judge Lineberger’s order manifested an intent to set aside Doshier’s conviction as if it had never occurred, we find no constitutional violation in Doshier’s holding of public office.

Accordingly, we affirm the denial of appellant’s petition.

Special Justice John C. Deacon joins in this opinion.

Hays, J., and Special Chief Justice James A. McLarty, III, dissent.

Holt, C.J., and Brown, J., not participating.


author: Per Curiam.

text:
    J.T. JACKSON v. ARKANSAS POWER & LIGHT COMPANY
    92-511
    832 S.W.2d 224
    Supreme Court of Arkansas
    Opinion delivered June 8, 1992

      John Purtle, for appellant.

      Jim L. Julian, for appellee.
   Per Curiam.

On December 4, 1991, the Jefferson County Chancery Court entered judgment against the appellant, J.T. Jackson, and found that Jackson had failed to prove that the road in question was a public road. On January 2,1992, Jackson filed a Motion to Vacate Judgment “because it is contrary to the facts, the law, public policy and is clearly contrary to the preponderance of the evidence.” In his motion, Jackson reargued the evidence and testimony and cited case law on prescriptive use and the establishment of public roads. On January 15,1992, the appellee, Arkansas Power and Light Company, argued in response that Jackson’s motion was, in fact, a motion for a new trial under Ark. R. Civ. P. 59 and was untimely. AP&L further contended that Jackson failed to argue that the chancellor’s judgment contained clerical errors or omissions or that it was obtained by fraud or that, through excusable neglect, Jackson had failed to offer newly discovered evidence at trial, all of which are grounds for relief under Ark. R. Civ. P. 60. Jackson replied that his motion was one “to prevent a miscarriage of justice” under Rule 60(b).

The chancellor did not rule on Jackson’s motion to vacate, and on February 6,1992, Jackson filed a notice of appeal. AP&L moved to dismiss the appeal on May 15, 1992, on the basis that the appeal was untimely.

We agree that the appeal must be dismissed. Jackson’s motion to vacate was couched in terms of a Rule 59 motion for a new trial. Rule 59(a)(6) provides for a new trial where “the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law.” That ground precisely covers Jackson’s argument and approximates the basis for relief set out in Jackson’s own motion, as quoted above.

Nor can we agree with Jackson that his motion to vacate is, in reality, a Rule 60 motion to prevent a miscarriage of justice. Were we to interpret the term “miscarriage of justice” expansively to embrace all grounds under Rule 59, Rule 59 would have no independent meaning. As we said in Phillips v. Jacobs, 305 Ark. 365, 368, 807 S.W.2d 923, 925 (1991):“. . .Rule60under our Arkansas Rules should not be used to breathe life into an otherwise defunct Rule 59 motion.”

Because Jackson’s motion to vacate was in the nature of a motion for a new trial under Rule 59, it was required to be filed within ten days of judgment. See Ark. R. Civ. P. 59(b). This was not done. Since the motion to vacate did not extend the time for filing a notice of appeal under Ark. R. App. P. 4(b), the notice of appeal was required to be filed within thirty days of judgment. This also was not done. AP&L’s motion, accordingly, has merit and the appeal is dismissed.


text:
    David POLLARD v. STATE of Arkansas
    CR 92-609
    831 S.W.2d 614
    Supreme Court of Arkansas
    Opinion delivered June 8, 1992

      Robert L. Lowery, for appellant.
    No response.
   Per Curiam.

Appellant, David Pollard, by his attorney, has filed for a rule on the clerk.

His attorney, Robert L. Lowery, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice,

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. Mary FARRIS and Henry Calvin Miller
    92-360
    832 S.W.2d 482
    Supreme Court of Arkansas
    Opinion delivered June 15, 1992

      Vickie A. Warner, for appellant.

      David J. Manley, for appellee.
   Jack Holt, Jr., Chief Justice.

The Arkansas Department of Human Services (DHS) appeals from the White County Chancery Court’s (Juvenile Division) finding that it did not have personal jurisdiction over the appellee, Henry Calvin Miller, for purposes of terminating Mr. Miller’s parental rights. We disagree with the chancellor and reverse.

In 1984, Mary Miller, the mother of the children involved in this lawsuit, was killed by her husband, Henry Calvin Miller, in Mississippi. The children, Theresa Farris, Lora Farris, David Miller, and Amanda Miller, were subsequently brought to Arkansas to reside with their maternal grandmother, Mary Linder. Mr. Miller has been continuously incarcerated in the Mississippi State Penitentiary.

On December 2, 1989, DHS filed a dependency/neglect petition in the White County Chancery Court pursuant to Ark. Code Ann. § 9-27-310 (Repl. 1991) and obtained emergency custody of the children based on allegations by Amanda, Lora, and Theresa that they had been sexually abused by relatives of Mary Linder’s husband.

After being served with notice of the dependency/neglect proceeding, Mr. Miller filed a pro se motion for appointment of counsel and was appointed an attorney from Legal Services of Arkansas. Thereafter, Mr. Miller was represented at various adjudication and six-month review hearings. Mr. Miller’s counsel actively participated in the proceedings and voiced Mr. Miller’s objection to returning the children to Mrs. Linder’s home. During the course of an adjudication hearing on March 14, 1990, Mr. Miller objected to the trial court’s jurisdiction over him as to possible termination of his parental rights. No finding was made by the trial court in this regard.

On June 18, 1991, some eighteen months after the children were taken into custody, a hearing was conducted to determine a new disposition in the case as required by Ark. Code Ann. § 9-27-338 (Repl. 1991). DHS asked the court for permission to proceed with termination of Mr. Miller’s parental rights in order to seek adoptive placement for the children. Mr. Miller’s attorney argued, as in the March 14 proceeding and subsequent hearings, that the court did not have personal-jurisdiction over him for this purpose and that Mr. Miller wished the children to remain in long-term foster care.

By order filed July 25,1991, the chancellor stated that DHS was required to request that it be allowed to file a petition to terminate parental rights, “that the department made such a request on this date and that request is hereby denied. . . .’’The court found Mr. Miller did not have sufficient minimum contacts with this state and that the court lacked personal jurisdiction to terminate Mr. Miller’s parental rights. The chancellor further stated the order was considered “final” and that if DHS wished to proceed with termination of parental rights, it would have to file a petition in the state of Mississippi. The chancellor approved long-term foster care and scheduled another six-month review hearing.

DHS now appeals, arguing that by filing pleadings in the case and participating in the proceedings, Mr. Miller entered a general appearance thereby subjecting himself to the chancery court’s jurisdiction.

Before discussing the merits, we first address Mr. Miller’s assertion that the July 25 order is not a final, appealable order and is simply an advisory opinion.

Ark. R. App. P. 2 provides in pertinent part:

(a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:
1. A final judgment or decree entered by the trial court;
2. An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action;

In order for a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Arkansas Dept. of Human Serv. v. Lopez, 302 Ark. 154, 787 S.W.2d 686 (1990). At the July hearing, DHS’s sole recommendation was that the court approve proceedings to terminate Mr. Miller’s parental rights. Under Ark. Code Ann. § 9-27-306(a)(4) (Repl. 1991), the juvenile court has exclusive jurisdiction over such proceedings. The chancellor’s order, quoted above, specifically recited that the chancery court lacked personal jurisdiction over Mr. Miller and that any petition for termination of parental rights would have to be filed in Mississippi. This language was more than “advisory.” The order decisively concluded the right of DHS to file for termination of parental rights in Arkansas and was, therefore, final and appealable.

On the merits, we agree with DHS that Mr. Miller waived his objection to personal jurisdiction.

DHS cites several earlier cases discussing the difference between general and special appearances. We note, however, that this distinction was abolished with the adoption of the Arkansas Rules of Civil Procedure in 1979. See Bituminous, Inc. v. Uerling, 270 Ark. 904, 607 S.W.2d 331 (1980); Ark. R. Civ. P. 12(b) and Reporter’s Notes to Rule 12, No. 7. “As long as a party either moves to dismiss [or objects for lack of personal jurisdiction] before pleading on the merits or combines the objection to jurisdiction with the response on the merits, the objection is preserved. . . . This procedure obviates the ‘special appearanee.’ ” D. Newbern, Arkansas Civil Practice and Procedure § 11-3 (1985); Rule 12(b). Otherwise, the defense is waived. Rule 12(h)(1). Another option (not applicable here) would simply be to fail to appear or to contest jurisdiction. Newbern, supra.

Mr. Miller responded on the merits of the case, at least twice, before asserting the court lacked in personam jurisdiction. First, he filed a pro se motion seeking appointment of counsel, shortly after receiving notice of the dependency/neglect proceedings in December 1989. Second, on February 16, 1990, Mr. Miller filed a response to a motion to intervene by a Mr. Charles Gardner. Mr. Gardner asserted he was the putative father of Amanda Miller and that he was a fit and proper person to have custody of the child. Mr. Miller responded that under Arkansas law, his marriage to Amanda’s mother at the time of Amanda’s conception and birth was presumptive of his paternity. He argued Mr. Gardner had no standing to proceed in the action and requested denial of the motion to intervene. In neither of these pleadings did Mr. Miller assert a jurisdictional defense. The record also reflects Mr. Miller was represented at an adjudication hearing on February 14, 1990. The transcript contains only a copy of the court’s order pertaining to this hearing, however, and we cannot determine whether or not Mr. Miller raised the issue of jurisdiction at that time.

It was not until March 14,1990, that Mr. Miller, through his attorney, first voiced his objection to personal jurisdiction. On that date, the parties attended another adjudication hearing, extended from the February hearing, to further resolve matters of custody and visitation, etc. Mr. Miller’s counsel conceded the chancery court could adjudicate custody of the children but asserted that if the case proceeded to termination of Mr. Miller’s parental rights, the court had no personal jurisdiction in this regard. This objection was too late.

Mr. Miller argues that under the Uniform Child Custody Jurisdiction Act (UCCJA), Ark. Code Ann. § 9-13-201 through 227 (Repl. 1991), the trial court was not required to obtain personal jurisdiction over him to determine custody of his children and he has never disputed general jurisdiction for that purpose. Mr. Miller objects to jurisdiction only with regard to the permanent termination of his parental rights, and that objection, he argues, was adequately preserved at the March 14 hearing.

As previously mentioned, Ark. Code Ann. § 9-27-306 gives the juvenile court exclusive, original jurisdiction of proceedings in which a juvenile is alleged to be dependent-neglected and specifically, under provision (a)(4), jurisdiction over proceedings for termination of parental rights, of a juvenile who is under its jurisdiction. In addition, under section (4)(b) and (4)(b)(1), the juvenile court has exclusive jurisdiction “of . . . matters governed by other law which arise during the pendency of the original proceedings under subsection (a)”, which includes “Adoptions under the Revised Uniform Adoption Act, as amended, § 9-9-201.”

Apparently Mr. Miller considers the two pleadings filed prior to the March 14 hearing as relating only to the issue of custody and therefore his appearance in those pleadings would not effect a waiver of his argument concerning personal jurisdiction to terminate parental rights. Mr. Miller cannot so confine the purpose of his appearances. Once he filed pleadings with the court seeking affirmative relief on the merits of the case, and accepted counsel, who represented him in all phases of the proceedings, he cannot now complain that the court did not have personal jurisdiction over him for the subsequent purpose of terminating his parental rights.

Since we find Mr. Miller had submitted himself to the jurisdiction of the court, we need not address the parties’ arguments concerning whether Mr. Miller had sufficient minimum contacts with this state.

Reversed and remanded for proceedings consistent with this opinion.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I agree with the result reached by the majority. First, the majority correctly holds the July 25 order from which this appeal springs is a final one. I believe the order is appealable for two reasons. One, the order resulted from an eighteen-month dispositional hearing required under Ark. Code Ann. § 9-27-338 (Repl. 1991). This is a “fish or cut bait” hearing in a dependent-neglect proceeding when the court must enter one of the following dispositions:

(1) Return the juvenile to the parent, guardian, or custodian;
(2) Authorize a plan for the termination of the parent-child relationship, guardianship, or custody;
(3) Place the juvenile in long-term foster care; or
(4) Allow the juvenile to continue in an out-of-home placement for a specified, limited period of time.

Here, the trial court found Mr. Miller failed to comply with the terms of the court’s case plan and efforts to rehabilitate and reunify the family had failed because Mr. Miller was incarcerated and had not maintained any direct contact with the children. Nonetheless, the court declined to authorize DHS to terminate Miller’s parental rights because the court concluded it had no personal jurisdiction over Miller, since he resided in Mississippi. The court’s ruling in effect concluded DHS’s dependent-neglect proceeding as it pertained to Miller, leaving DHS to appeal the court’s decision. In fact, DHS’s failure to appeal in these circumstances would have left the court’s jurisdictional ruling as the law of the case. In sum, the dispositional hearing and decision is considered one of finality and the trial court’s ruling also was final, considering it had yielded or ceased any jurisdiction the court had over Miller, DHS clearly had the right to challenge those rulings by appeal.

Next, I agree with the majority decision that once Miller filed pleadings seeking affirmative relief with the trial court, he cannot complain the court did not have personal jurisdiction over him for the purpose of terminating his parental rights. When he entered his appearance in the dependent-neglect proceeding, Miller was made aware that his failure to remedy the conditions causing the out-of-home placement of his children might result in the termination of his parental rights. After DHS gains custody of a juvenile, it must prepare a written case plan within thirty days of the juvenile’s placement. Ark. Code Ann. § 9-27-335 (Repl. 1991). In accordance with Ark. Code Ann. § 9-27-335(H) (Repl. 1991), that case plan includes a statement directed to the juvenile’s parent, custodian, or guardian and notifies them as follows:

(i) Failure to remedy the conditions causing the out-of-home placement of the juvenile may result in termination of parental rights',
(ii) Termination of parental rights may occur only after notice and a hearing on termination',
(iii) If the parent, guardian, or custodian disagrees with the terms in the plan, the party may petition the court for resolution of the disagreement, and
(iv) The parent, guardian, or custodian has a right to notice of any modification of the case plan and the right to petition the court for a hearing on the modification. (Emphasis added.)

Upon the failure of a parent to correct the conditions causing his or her child’s removal from home, the juvenile court reviewing the dependent-neglect proceeding may then consider DHS’s petition to terminate parental rights, and upon terminating such rights, it may authorize DHS to consent to the adoption of the juvenile. Ark. Code Ann. § 9-27-341 (Supp. 1991).

In sum, under Arkansas’s statutory scheme, a parent is afforded notice shortly after the dependent-neglect proceeding is commenced that the parent’s rights to his or her child may be terminated by the juvenile court if the parent fails to comply with DHS’s case plan as was approved by the court. Such due process having been given Miller in this case, he cannot subject himself only to part of the dependent-neglect proceeding provided by law, but then attempt to avoid the juvenile court’s jurisdiction once the juvenile court determines that he and his children should not be reunified. Miller entered his appearance in these proceedings and the juvenile court had jurisdiction to decide those issues related to dependency-neglect, termination of parental rights and adoption. Id., see also Ark. Code Ann. § 9-27-306 (Repl. 1991). To construe Arkansas’s Juvenile Code to permit parents to limit, their appearances to one stage of these proceedings would serve only to frustrate a court from achieving the purposes of the Code — to remove a juvenile from his parents only when his welfare or safety cannot be safeguarded and to assure the juvenile is permanently placed in an approved family home and be made a member of the family by adoption if the juvenile must be permanently removed from his family. Ark. Code Ann. § 9-27-302 (Repl. 1991).

For the foregoing reasons, I join the majority in reversing and remanding this cause for further proceedings.