text:
    Garland F. MORRIS, Jr. v. Sophia R. CULLIPHER, Executrix of the Estate of Garland F. Morris, Sr., Deceased
    91-42
    816 S.W.2d 878
    Supreme Court of Arkansas
    Opinion delivered October 14, 1991

      David J. Potter, for appellant.

      Hubbard, Patton, Peek, Haltom & Roberts, by: George L, McWilliams and Randall D. Goodwin', and Smilie Watkins, for appellee.
   Robert L. Brown, Justice.

This appeal is a probate matter in which the appellant, Garland F. Morris, Jr., contests the performance of the appellee, Sophia R. Cullipher, as executrix of the decedent’s estate on various grounds, including breach of fiduciary duty. The probate court entered an order denying relief on September 13, 1990. Morris Jr. now appeals and raises five points for reversal. There is no merit in any of the arguments, and we affirm.

The decedent, Garland F. Morris, Sr., died testate in Garland, Miller County, Arkansas on January 7, 1985. He was survived by Cullipher, who was his second wife and who has since remarried, and by Morris Jr., who was his only son by a previous marriage. Morris Sr. divorced his first wife in 1966 and married Cullipher that same year. Prior to the divorce Morris Sr. had lived in Texas but upon remarrying, he and Cullipher moved to Garland. For the duration of their marriage, they farmed 1,123.22 acres of land in Miller County — 370 acres were owned solely by Cullipher, 633.22 acres were owned as tenants by the entirety, and 120 acres were owned solely by Morris Sr. As they made money, they bought certificates of deposit from four Texas banks in their joint names. They also held their Arkansas farm operation as tenants by the entirety and used the money derived from that operation to buy farm equipment and livestock.

Morris Sr. died in 1985, and his will was admitted to probate. Cullipher was appointed executrix of his estate, which was valued at approximately $295,000. The jointly held Texas certificates of deposit which Cullipher determined passed to her by right of survivorship under Arkansas law were valued at $268,848. Cullipher took ownership of those certificates and transferred them to Arkansas. More than two years later on November 17, 1987, Morris Jr. petitioned to have Cullipher removed as executrix. Hearings on this petition and other matters relating to discovery and the administration of this estate were held with the final hearing commencing on May 3, 1990. The probate judge denied the petition and entered his order with accompanying findings of fact and conclusions of law on September 13, 1990.

I.

REMOVAL OF EXECUTRIX

Morris Jr. urged the probate judge to remove Cullipher for multiple reasons. His first argument was premised on a perceived failure on her part to prepare inventories and accountings for the estate in a satisfactory manner. The facts, however, undermine Morris Jr.’s assertions. On April 29,1985, Morris Jr. waived the necessity for an inventory and accounting. A year later on May 22, 1986, he changed his mind and withdrew his waiver. He further petitioned to compel Cullipher to file the documents. The probate judge ordered her to do so on August 11, 1986, but directed that the documents not be filed as part of the probate clerk’s record. Cullipher proceeded to prepare and send an inventory and accounting to counsel for Morris Jr. within thirty days of that order. She then filed amended and supplemental accountings on March 7, 1988, and November 28, 1989. On March 30, 1990, she filed a comprehensive accounting and amended inventory. The comprehensive accounting replaced previous accountings filed. On May 1, 1990, she filed a supplemental accounting.

We have held that where there is. substantial compliance with the executrix’s obligation to file an inventory and accounting and no evidence of wrongdoing, we will deny relief for a fiduciary breach. See Petty v. Lewis, 285 Ark. 3, 684 S.W.2d 250 (1985). Here, it is clear from the above that Cullipher did prepare and furnish accountings as well as an inventory after Morris Jr. withdrew his waiver. Although Morris Jr. contests the sufficiency of these documents, the probate judge found no deficiency in Cullipher’s performance in this regard. We agree and affirm the probate judge’s ruling.

Morris Jr. also presses the point that a fiduciary breach occurred because Cullipher refused to comply with the decedent’s “desire” in his will that Cullipher and Morris Jr. engage in joint farming operations. This language is clearly precatory and, as such, is ineffective to dispose of property. In addition, the Arkansas farm passed to Cullipher by right of survivorship, and, therefore, was not affected by language in the will. See Estate of Wells v. Sanford, 281 Ark. 242, 663 S.W.2d 174 (1984).

Nor does the will direct or require Cullipher to make disbursements of money to Morris Jr. There is only the “desire” that Cullipher do so which, again, is precatory. Allegations were also made regarding Cullipher’s administration of the Texas C.D.’s and claims against the estate. These issues are discussed more fully below but, in sum, we agree that evidence of wrongdoing is lacking, as the probate judge found. Finally, Cullipher’s failure to close out the estate has been due in no small part to the multiple lawsuits prosecuted by Morris Jr. against Cullipher and the estate. There was no error in the probate judge’s refusal to find any breach of fiduciary duty.

II.

DISCOVERY RESTRICTION AND CONTINUANCE

Though the original petition for removal of Cullipher was filed by Morris Jr. on November 17,1987, the trial on the petition did not commence until March 16, 1990. No discovery had been conducted by Morris Jr. at the time the trial commenced. The probate judge recessed the trial on March 19,1990, until May 3, 1990, and subsequently entered a scheduling order on March 27, 1990, which mandated preparation of the comprehensive accounting and inventory and which contemplated additional discovery pertaining to the bank accounts and C.D.’s. On March 30, 1990, Cullipher filed a comprehensive accounting and inventory. On April 12,1990, Morris Jr. filed requests for production of business documents regarding the decedent’s farm operation going back twenty-three years, which were to be furnished in five days. The ostensible reason for the request was to trace the title of the property to determine what was individually owned by the decedent or jointly owned. On May 1, 1990, the probate judge entered a protective order denying the expansive discovery, and on July 30, 1990, the probate judge struck subsequent discovery which had been served by Morris Jr. on Cullipher. (Cullipher contends in this regard that most of the title records to personal property were provided to Morris Jr. in advance of the May 3, 1990 hearing.) When the trial reconvened on May 3, Morris Jr. moved for a continuance on the basis that he had not had an opportunity to review all of the provided material. The motion was denied as untimely.

Lack of diligence is a factor to consider in denying a continuance. Mixon v. Chrysler Corp., 281 Ark. 202, 663 S.W.2d 713 (1984). Moreover, a trial judge has broad discretion in matters pertaining to discovery, and that discretion will not be second-guessed by this court absent abuse of discretion which is prejudicial to the appealing party. See Bolden v. Carter, 269 Ark. 391, 602 S.W.2d 640 (1989); Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W.2d 607 (1978). Also, when the continuance is based on a request for additional discovery, the appellant must not only show that there has been an abuse of discretion, but also that the additional discovery would have changed the outcome of the trial. See Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). We hold that the probate judge was correct, and that there was no abuse of discretion regarding discovery and the continuance.

III.

PAYMENT OF CLAIMS

Morris Jr. next contests the procedure by which Cullipher paid claims filed against the estate. Specifically, he argues that certain claims timely presented as debts of the decedent were not filed with verifications and allowed by the court prior to payment. The Statute of Nonclaim is not raised by the appellant as an issue.

It is true that the probate judge did not allow these claims prior to their payment by Cullipher. But the judge approved their payment after the fact in his September 13,1990, order. In the past we have held that substantial compliance with the formalities for filing and approving claims is sufficient under certain circumstances. See Merritt v. Rollins, 231 Ark. 384, 329 S.W.2d 544 (1959) (registered mail of claim to personal representative as specified by statute not required when claim is personally delivered). Because of the probate judge’s subsequent approval of these claims, we hold that there was substantial compliance in this case.

Morris Jr. further contests payment of significant legal and accounting fees as administrative expenses of the estate. The authorizing statute reads:

(b) Claims for expenses of administration may be allowed upon application of the claimant or of the personal representative, or may be allowed at any accounting, regardless of whether or not they have been paid by the personal representative.

Ark. Code Ann. § 28-50-105(b). Morris Jr. maintains that the fees claimed and paid were excessive in view of the size of the estate.

The fees are high — $81,932 for legal fees and $23,450 for accounting fees, according to Morris Jr. — but the value of such services rendered is primarily a matter within the discretion of the probate judge, and we will not reverse that finding absent an abuse of discretion. Again, we note, as did the probate judge, that there were “numerous” lawsuits brought against Cullipher and the estate by Morris Jr. We are not privy to precisely what those lawsuits entailed, since they are not part of the record. The probate judge, however, found that they were suits against Cullipher in her official capacity, and there is nothing before us to counter that. We also agree with the probate judge that in the instant case Cullipher’s actions, which are now contested by Morris Jr., were taken in her official capacity. The legal defense of lawsuits brought by Morris Jr. as principal descendant of the testator as well as his demand for comprehensive accountings undoubtedly enhanced the administrative claims.

It is true that had the statutory formula been used for the award of attorney’s fees, the award would have been much less than the $81,932 paid in legal fees, even if part of the decedent’s property passing to Cullipher by operation of law had formed part of the estate. See Ark. Code Ann. § 28-48-108 (d) (1987). But, the probate judge has authority to approve legal fees in excess of the statutory legal fees under § 28-48-108(d) and did so in this case. He further was authorized to approve accounting fees under Ark. Code Ann. § 28-48-108(e) (1987). For the reasons set out above, we hold that his ruling on the fees did not constitute an abuse of discretion.

IV.

CHOICE OF LAW

The choice of law question lies at the heart of Morris Jr.’s appeal. Specifically, there is the issue of whether the Texas C.D.’s legitimately passed by right of survivorship under Arkansas law or whether one-half of the C.D.’s should have become part of Morris Sr.’s estate under Texas’s community property law. Morris Jr. argues vigorously that the C.D.’s were movable personal property and, as such, the law of the situs state — Texas — should apply. Texas, unlike Arkansas, requires a separate writing signed by the parties evidencing a survivorship intent in order for the C.D.’s to pass by operation of law. See Texas Probate Code Annotated § 439 (Vernon, 1980). Under Arkansas law no separate writing is required for the C.D.’s to pass automatically to the survivor at time of death. See Ark. Code Ann. § 23-32-1005(3) (1987). And Cullipher contends that the applicable law for the C.D.’s is Arkansas law which is the law of the domicile of the decedent at the time the C.D.’s were acquired.

There is no question but that the Texas C.D.’s were placed in the joint names of Morris Sr. and Cullipher while husband and wife and were purchased either with funds from the Arkansas farm operation or from Morris Sr.’s separate property. The C.D.’s were purchased and held in Texas. The decedent also had other Texas contacts, but he lived in Arkansas and was living in Arkansas at the time the C.D.’s were purchased. We turn to Leflar on Conflicts for resolution of the issue and find a legitimate policy in favor of applying the law of the domicile:

As between the spouses on divorce, or [a]s between a surviving spouse,. . .the whole of their movable property will be most fairly divided if the distribution can be in accord with some single basis of marital ownership and the rule which refers the question to the law of the domicile is the only one which can approximate this result. Otherwise the place of acquisition of each item of personalty, including choses in action, acquired by either of the spouses will have to be remembered, and its law studied, to learn what marital property interests exist in the item, though it may have long since been intermingled with the mass of the spouses’ personalty at their domicile.

Id. at 646. See also Restatement of Conflict of Laws § 290 (1934). R. Leflar, American Conflicts Law, § 233, p. 647 (1986). Leflar further states that the great body of American authority favors the law of the domicile at the time the marital property is acquired. Id.

Morris Jr. cites a 1933 case in support of his position that Texas law should apply. See Francis v. Turner, 188 Ark. 158, 67 S.W.2d 211 (1933). In Francis our court did appear to honor Mississippi law to determine title to a Mississippi bank account, though the decedent had been a resident of Arkansas. We believe Francis is distinguishable on its facts, since the widow in that case agreed that the bank account should pass through the estate. That is not the situation in the case before us. Rather, Cullipher exerted ownership by right of survivorship. This court did indicate that had a localized Mississippi bank account been properly proven, Mississippi law would have been applied. This is contrary to Leñar on Conflicts, as noted above, and our holding today. To the extent that Francis v. Turner stands for the proposition that the marital property law of the situs as opposed to the domicile applies to movable personal property, we overrule it.

Along this same line Morris Jr. argues that certain farm equipment and livestock should have passed through the estate and not to Cullipher by right of survivorship. It was undisputed, though, that this personal property was either purchased with the proceeds from the Arkansas farm operation which Cullipher and Morris Sr. jointly held as husband and wife or was given to them as tenants by the entirety. This court held early on that a tenancy by the entirety could exist in personal property. See Dickson v. Jonesboro Trust Co., 154 Ark. 155, 242 S.W. 57 (1922). We have further held that personal property acquired with the proceeds of land held by the entirety also constituted an estate by the entirety. See Bostic v. Bostic Estate, 281 Ark. 167, 662 S.W.2d 815 (1984). It was, therefore, appropriate for the farm equipment and livestock to pass to Cullipher by operation of law.

V.

For his final point, Morris Jr. requests review of his petition for affirmative relief filed on April 12, 1990, where he asks for penalties, interest, and rents on property which should be included in the estate together with attorney’s fees. Since we hold against the appellant on all points, we find it unnecessary to consider this argument. Morris Jr. further asked in that petition for the inclusion in the estate of a vendor’s lien note originally held jointly by Morris Sr. and Cullipher. In Arkansas there is a strong presumption that a promissory note held by husband and wife was held as tenants by the entirety. See Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1985). There is nothing to suggest otherwise in this case.

Affirmed.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Carroll GLOVER v. STATE of Arkansas
    CR 91-176
    817 S.W.2d 409
    Supreme Court of Arkansas
    Opinion delivered October 21, 1991

      Dan Stripling, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The petitioner seeks a Writ of Prohibition for violation of the speedy trial rules. The rules have been violated and, accordingly, we grant the writ.

Petitioner was charged with the crime of rape on June 12, 1990. He was free on bond with the condition that he report weekly to a probation officer. Two and one-half months later, on August 31, 1990, counsel was appointed, and, on October 4, his trial was set for January 29, 1991. His attorney learned that his secretary was related to the victim and so he filed a motion to withdraw because of a conflict of interest. The court, without notice to the petitioner, granted the motion on December 21, 1990. In late January 1991, petitioner learned that his attorney had been allowed to withdraw. His probation officer suggested that he prepare a second affidavit to proceed in forma pauperis. The purpose of the second petition was to have another attorney appointed. Petitioner filed it on February 12. On February 22, two months after the first attorney had been allowed to withdraw, the trial court appointed a second attorney and reset the trial for July 31, 1991.

On July 1, 1991, petitioner filed a motion to dismiss since he had not been brought to trial within one (1) year. A.R.Cr.P. Rule 28.1(c). Once it has been shown that trial was scheduled to be held after the speedy trial period had expired, the State has the burden of showing that any delay was the result of the petitioner’s conduct or was otherwise legally justified. Gooden v. State, 295 Ark. 385, 389, 749 S.W.2d 657, 659 (1988).

The State argues that the period from December 21, 1990 through February 22, 1991, the period when the appellant was without counsel, is excludable as a “period of delay for good cause.” A.R.Cr.P. Rule 28.3(h). Other excludable periods are not sufficient to meet the one-year limitation, thus, the only issue is whether the time when the accused was without counsel was properly excludable.

The primary burden is on the court and the prosecutor to assure that a case is brought to trial in a timely fashion. A defendant has no duty to bring himself to trial. Novak v. State, 294 Ark. 120, 123, 741 S.W.2d 243, 245 (1987) (citing Barker v. Wingo, 407 U.S. 514 (1972)). Here, petitioner was not aware that his trial had been set for January 29, 1991; neither was he aware that he was without counsel until approximately a month after the trial court had allowed his counsel to withdraw. On the other hand, the court knew that petitioner was without counsel and delayed appointing substitute counsel for two (2) more months. By that time petitioner had made a second request for appointed counsel.

The State contends, and the trial court found, that the two-month period is an excludable period because petitioner did not move to proceed pro se. Consequently, it is argued, he could not have gone to trial on the date it was set originally. From that basis, the State contends there was a delay for good cause. The effect of adopting such a position would be to force defendants to choose between their constitutional right to be represented by counsel and their constitutional right to have a speedy trial. In the present case petitioner would have to forfeit his right to a speedy trial because, through no fault of his own, he was not represented by counsel and was not willing to go to trial without counsel. We refuse to adopt such a position.

Speedy trial rules were not promulgated to protect only the rights of the accused. The victim and the public are also entitled to have criminal trials held promptly. Chandler v. State, 284 Ark. 560, 561, 683 S.W.2d 928, 929 (1985). To ensure compliance, the speedy trial rules provide that an accused, if not promptly tried, will be absolutely discharged. A.R.Cr.P. Rule 28.1(a), (b) and (c).

We are aware that in two prior cases we have held that the period of delay due to the appointment of new defense counsel was excludable as a delay for good cause under A.R.Cr.P Rule 28.3(h). Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982) and Divanovich v. State, 273 Ark. 117, 617 S.W.2d 345 (1981). However, both of these cases are clearly distinguishable from the case at bar. The delays in those cases were occasioned by actions taken by the defendants. In the first instance, the delay was caused by Williams’ refusal to cooperate with his appointed counsel. Because of this conduct by the defendant, counsel requested to withdraw and new counsel had to be appointed. In the second case, at least a portion of the delay was the result of a motion by Divanovich to disqualify the prosecuting attorney necessitating the appointment of a special prosecutor. Unlike the defendants in those cases, the petitioner in this case did nothing to cause his trial to be delayed beyond the time for a speedy trial.

The Writ of Prohibition is granted.


author: Steele Hays, Justice.

text:
    Robert JOHNSON v. Alice RAMSEY, Allen Walters and Hattie Walters
    91-90
    817 S.W.2d 200
    Supreme Court of Arkansas
    Opinion delivered October 21, 1991

      W. Hunter Williams, Jr:, for appellant.

      Ralph E. Wilson, for appellee.
   Steele Hays, Justice.

This is an appeal from a declaratory judgment entered in the Mississippi Chancery Court. The facts are not in dispute. On July 15,1970, the appellee, Alice Ramsey, purchased from D.S. and Elizabeth Laney a lot in Osceola, Arkansas, on Poplar Street. Ramsey executed a note and deed of trust to the Laneys for the purchase price in the sum of $4,500.00 payable at $40.00 per month.

On August 10, 1970, Alice Ramsey executed a warranty deed to Allen Walters for the Poplar Street property. The warranty deed omitted one of the calls so that the property was incorrectly described.

The deed from Ramsey to Walters provided for $10.00 consideration paid by Walters “and other good and valuable consideration, including, but not limited to, the payment of all sums due D.S. Laney on a Promissory Note dated July 15, 1970. . .”

On April 2,1990, the appellant, Robert Johnson, obtained a default judgment against Allen Walters arising from a motor vehicle collision. Thereafter, the Mississippi Circuit Court issued a writ of execution commanding the sheriff to recover from Allen Walters the amount of the judgment granted in favor of Johnson. The sheriff returned the writ nulla bona, however, when it was discovered that Allen Walters had record title to the Poplar Street property; a second writ of execution was issued.

On June 22, 1990, Walters executed a quitclaim deed to Alice Ramsey for the Poplar Street property. The deed recited that Allen Walters was reconveying the property that was “held in trust” by Walters on behalf of Alice Ramsey. Because of the reconveyance to Alice Ramsey the sheriff declined to execute the second writ of execution.

In August of 1990 Alice Ramsey filed a suit for declaratory judgment, naming Robert Johnson and the sheriff as defendants. Ramsey asked that she be declared the owner in fee simple of the Poplar Street property and for an injunction to prevent a sale of the property. The sheriff was subsequently released from the suit.

Robert Johnson filed a counter-claim against Alice Ramsey and a third party complaint against Allen Walters and his wife, Hattie Walters, alleging that he obtained a default judgment against Allen Walters and after the judgment was served on him, Walters transferred all his real and personal property to Hattie Walters or Alice Ramsey with the intent to hinder, delay or defraud Johnson. Johnson requested that all the transfers of real and personal property be void and that the sheriff be ordered to levy on all assets transferred by Allen Walters to Hattie Walters or Alice Ramsey or any proceeds derived from the transfers.

After a hearing the court found that certain real property belonging to Allen Walters was fraudulently conveyed to Hattie Walters and that Alice Ramsey was the owner in fee simple of the Poplar Street property. Robert Johnson appeals the finding regarding the ownership of the Poplar Street property.

In a letter opinion, the chancellor made the following findings: Allen Walters had no interest in the Poplar Street property because the property description in the deed from Ramsey to Walters is faulty; Walters does not seek reformation of the deed and Robert Johnson lacks standing to seek that relief; if the litigation was between Ramsey, the grantor, and Walters, the grantee, the court would find that the erroneous description in the deed should be reformed, and Walters had no interest in the Poplar Street property because there has been a total lack of consideration.

Johnson challenges the chancellor’s findings, arguing that consideration was not relevant to the deed’s validity and reformation was not necessary because the August 10th deed made specific reference to the deed of trust executed to Laney which contained a correct legal description of the property. Johnson insists that all essential elements of a deed were proven and the court should have found that Allen Walters owned the Poplar Street property.

We agree with Johnson that consideration and reformation are not necessary for the validity of this deed, however, the requirement of delivery of the deed is lacking, thus, the chancellor did not err in finding that the Poplar Street property did not belong to Allen Walters.

First, turning to the issues of consideration and reformation, we have said that inadequacy of consideration is not a ground for setting aside a voluntary conveyance. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Parker v. Baker, 254 Ark. 283, 492 S.W.2d 891 (1973); Whatley & Wright v. Corbin, 252 Ark. 561, 480 S.W.2d 142 (1972). We have also held that a deed will not be invalid for uncertainty of description if a proper description is furnished by reference to another instrument. Rye v. Baumann, 231 Ark. 278, 729 S.W.2d 161 (1959); See also Liggett v. Church of Nazarene, 291 Ark. 298, 724 S.W.2d 170 (1987); Sorrells v. Bailey Cattle Co., 268 Ark. 800, 595 S.W.2d 950 (1980).

The chancellor’s findings on reformation and consideration do not warrant reversal because there was no delivery of the deed. A deed is inoperative unless there has been delivery to the grantee and an essential element of a valid delivery is the grantor’s intention to pass title immediately, thus, giving up dominion and control of the property. Parker v. Lamb, 263 Ark. 681, 567 S.W.2d 99 (1978). Even though a presumption of delivery of a deed attaches when the deed is recorded, as occurred here, that presumption may be rebutted by other factors pertaining to the deed. See Crowder v. Crowder, 303 Ark. 562, 798 S.W.2d 425 (1990).

Alice Ramsey testified that in August of 1970 she became ill and did not think she was going to live. At that time she had several children living at home and decided Allen Walters would be the person who would maintain her property for her children. Speaking about the execution of the warranty deed to Walters, Ramsey stated, “. . .1 didn’t mean to give it to him then, I just meant for him to see after it so my kids could have somewhere to stay because there wasn’t nobody. . .1 didn’t have no relatives around and the kids was small.” Ramsey further testified that she paid all payments on the property as well as the property taxes. At trial the following exchange took place between Ramsey’s attorney and Allen Walters:

Q. Well, did you claim that you owned the property?
A. Well, I didn’t own it because I didn’t pay nothing on it. All I know is that she just put it over into my name on account of she was sick, she was having this problem.
Q. And you never have claimed to own the property?
A. No, sir. Never have claimed to own it. I haven’t paid nothing on it.

The testimony of Alice Ramsey corroborated by Allen Walters showed that Ramsey did not intend to give up dominion of her property. This testimony sufficiently rebuts the presumption of delivery of the deed. Consequently, Allen Walters did not receive any interest in the Poplar Street property.

Johnson argues next that the Chancellor erred in establishing Alice Ramsey as owner of the real property because she participated in a fraudulent transfer of the property. This argument fails because of the finding that delivery of the deed was lacking, therefore, there was no transfer of the Poplar Street property.

Johnson also raises an issue concerning laches, but, finding no reference at the trial level to this argument, we do not address it on appeal.

The appellant’s final argument is that Ramsey’s complaint should have been dismissed pursuant to Ark. R. Civ. P. 12(b)(6) because she was required to include Allen Walters as a party to her declaratory judgment because his interests would be affected by the proceeding. See Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980). Even if Ramsey should have named Walters as a party, that omission resulted in no prejudice to Johnson because in his counter-complaint and third party complaint he named Walters as a third party defendant to Ramsey’s declaratory judgment action.

Affirmed.


text:
    R. S. McCULLOUGH v. Loretta JOHNSON
    91-24
    816 S.W.2d 886
    Supreme Court of Arkansas
    Opinion delivered October 21, 1991
    [Rehearing denied November 25, 1991.]

      Wright, Lindsey & Jennings, by: Wendell L. Griffen, for appellant.

      Art Allen, for appellee.
   Steele Hays, Justice.

The appellant, R.S. McCullough, is an attorney at law, licensed by and practicing in the State of Arkansas. The appellee, Loretta Johnson, is a court reporter for the Fifth Division Circuit Court in Pulaski County, Arkansas. Johnson sued the appellant for the cost of a transcript of the testimony in a criminal trial that McCullough had ordered for use in an appeal. This appeal arises from judgment of the Pulaski County Circuit Court against McCullough individually which awarded Johnson $1,137.70 plus interest for the costs of preparing the transcript.

On appeal, the issue is whether an attorney may be held personally liable for the costs of a transcript of trial proceedings he requested on behalf of his client. The case presents a matter of first impression in Arkansas.

Mr. McCullough represented Hurley M. Jones in a criminal proceeding in the Pulaski County Circuit Court which resulted in Jones’ conviction. Ms. Johnson testified that she was aware Mr. McCullough was representing Jones. Following the conviction, McCullough filed a notice of appeal and had a copy of the notice delivered to Johnson. Ms. Johnson testified that she found the copy on her desk and prepared the transcript.

Ms. Johnson did not ask for a deposit on the transcript and testified it was her custom to not require deposits unless she was dealing with an out-of-state attorney or one she did not know. She also requested deposits when she was doubtful of the financial ability of an attorney. Johnson said she looked to, and expected payment from, McCullough and assumed there would not be a problem because he had paid in the past.

After Ms. Johnson completed the transcript she contacted McCullough and asked for the costs of preparing it. She also told him she would take the transcript to the circuit court for completion and certification. Johnson testified that McCullough told her he would bring the payment by. Mr. McCullough did not deliver the payment, though he did obtain the transcript from the circuit clerk’s office and filed it in the Arkansas Court of Appeals.

Johnson subsequently sent McCullough a letter demanding payment. She stated that at one point, following the completion of the transcript, McCullough offered to give her $400 from Mr. Jones, but, she refused the partial payment. Ms. Johnson testified that at no time did McCullough expressly promise to assume responsibility for the debt nor did he indicate he would not be responsible for it.

In the meantime McCullough filed a motion on behalf of Jones to proceed in forma pauperis on appeal but the record had already been lodged with the appellate court. Consequently, the motion was denied. No payment was ever tendered to Johnson for the transcript either by McCullough or Jones. Johnson then filed the action against McCullough which gave rise to this appeal.

The appellant contends that the trial court should have granted summary judgment in his favor based on principles of Arkansas agency law. Arkansas recognizes the general rule that where an agent names his principal and does not exceed his authority when contracting on the principal’s behalf, the agent is not personally liable upon the contract unless the agent agrees to be. Peevy v. State, 9 Ark. App. 347, 659 S.W.2d 957 (1983); Ferguson v. Huddleston, 208 Ark. 353, 186 S.W.2d 152 (1945); Ogletree v. Smith, 176 Ark. 597, 3 S.W.2d 683 (1928); Neely v. State, 60 Ark. 66, 28 S.W. 800 (1894). This court has said, “[t]he rules of agency generally apply to the relationship of attorney and client.” Peterson v. Worthen Bank & Trust Co., 296 Ark. 201, 753 S.W.2d 278 (1988). However, we have not addressed the question presented by this case.

When the issue has arisen in other jurisdictions as to whether the attorney should be held personally liable for expenses incurred on behalf of a client two lines of reasoning have evolved within the general rules of agency law. Annotation, Attorney’s Personal Liability For Expenses Incurred In Relation To Services For Client, 66 ALR 4th Fed. 256 (1988); 7 Am. Jur. 2d Attorneys At Law § 153 (1980). Some jurisdictions take the position that the attorney is the agent for the client-principal and apply the rule that an agent is not personally liable on contracts made for a disclosed principal in the absence of an express agreement to be bound. Id. This places the burden on the service provider to obtain the attorney’s personal promise to pay. Id. See Ingram v. Lupo, 726 S.W.2d 791 (Mo. App. Ct. 1987); Eppler, Guerin & Turner, Inc. v. Kasmir, 685 S.W.2d 737 (Tex. Civ. App. 1985); Free v. Wilmar J. Helric Co., 70 Or. App. 40, 688 P.2d 117 (1984); Nagle v. Duncan, 570 S.W.2d 116 (Tex. Civ. App. 1978).

Courts in other jurisdictions have considered the agency relationship of the attorney and client a modified one, treating the attorney as a principal because his education, experience and professionalism render him in charge of the litigation. In those jurisdictions, the attorney ordering goods or services for the client will also be personally liable for those expenses, in the absence of an express disclaimer of such responsibility. Id. The effect of this reasoning places the burden on the attorney to expressly disclaim responsibility. Id. See Blake v. Ingraham, 44 Ohio App.3d 38, 540 N.E.2d 759 (1989); Copp v. Arndt & Associates, 56 Wash. App. 229, 782 P.2d 1104 (1989); Burt v. Gahan, 220 N.E.2d 817 (Mass. 1966); and, Monick v. Melnicoff, 144 A.2d 381 (D.C. 1958).

The trial court followed the view that the attorney should be responsible to a service provider in the absence of a disclaimer, and held Mr. McCullough liable for the costs of the transcript. It has been said that this view reflects the trend by taking into account modern litigation practices. We agree. This approach allows court reporters to confidently regard themselves as dealing with the attorney, not the client, and the attorney may avoid liability by informing the provider that the client, not the attorney, is responsible for any obligations incurred.

Affirmed.

Glaze, J., concurs.


author: David Newbern, Justice.

text:
    Denver LEMONS v. STATE of Arkansas
    CR 91-136
    817 S.W.2d 411
    Supreme Court of Arkansas
    Opinion delivered October 21, 1991

      Robert N. Jeffrey, for appellant.

      Winston Bryant, Att’y Gen., by: Melissa K. Rust, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Denver Lemons, was picked up in Garland County on December 14, 1990, on charges unrelated to those involved in this appeal. A Garland County officer informed a Hot Spring County officer that Lemons might have information for him. Lemons was taken to Hot Spring County. That same date, Lemons, while in custody in Hot Spring County, confessed to burglaries by which he came into possession of jewelry and guns.

Lemons was arrested following the confession and incarcerated in Hot Spring County from that point through January 14, 1991, when he made his first appearance before a judicial officer.

Lemons moved to suppress his confession because his being held for 31 days before his first appearance violated Ark. R. Crim. P. 8.1. The motion was denied. Lemons was convicted of burglary, theft of property, and being a felon in possession of a firearm.

The sole point on appeal is whether the Trial Court erred in denying relief for the violation of Rule 8.1. We affirm the conviction as there was no connection between the delay and the evidence sought to be suppressed.

Rule 8.1. provides:

Prompt First Appearance.
An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.

In Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981), we found a 30-day delay sufficient to establish a violation. We also held the Rule mandatory rather than discretionary; however, we noted that the remedy for violation of the rule is to suppress any custodial statement. We later made it clear that to require suppression it must be shown that “the evidence [obtained in violation of the Rule] must be reasonably related to the delay.” Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). In this case, there is no connection between the statement obtained on the night of the arrest and the subsequent delay.

Affirmed.


author: Tom Glaze, Justice.

text:
    Maureen BAILEY, Administratrix of the Estate of John Fletcher Dowdy, Deceased v. ROSE CARE CENTER, A Division of C.A.R.E., Incorporated; Derry D. Hallmark
    91-79
    817 S.W.2d 412
    Supreme Court of Arkansas
    Opinion delivered October 21, 1991

      Eichenbaum, Scott, Miller, Liles & Heister, P.A., by: Randel K. Miller, for appellant.

      Barrett, Wheatley, Smith & Deacon, by: Lucinda McDaniel, for appellees.
   Tom Glaze, Justice.

At 1:45 a.m., John Dowdy, an eighty-nine-year-old resident of the Rose Care Center, left the nursing home unnoticed in his wheelchair and was subsequently struck by a pickup truck driven by Derry Hallmark. Mr. Dowdy was killed instantly. Maureen Bailey, as the sister of the decedent and the administratrix of his estate, filed suit alleging negligence on the part of the appellees, Rose Care Center and Hallmark. The jury returned a verdict in favor of the appellees.

The appellant appeals alleging the following four points of error: 1) the trial court erred in giving jury instruction number nine [AMI 1501], because it is an incorrect statement of the law concerning the nursing home’s standard of care; 2) there is insufficient evidence to support the jury’s verdict; 3) the trial court erred in excluding evidence of the nursing home’s modification of the alarm system and adoption of guidelines requiring its use after Mr. Dowdy’s death; 4) the trial court erred in refusing to give the appellant’s requested instruction, number two, on the measure of damages. Because we find merit in the appellant’s first point of error that the trial court erred in giving jury instruction number nine [AMI 1501], we reverse and remand the jury’s verdict in favor of Rose Care Center.

All of the appellant’s arguments on appeal concentrate on her negligence suit against Rose Care Center. The jury was properly instructed as to law governing the appellant’s burden of proof in showing that Hallmark was negligent, and the record clearly shows that there is sufficient evidence to support the jury’s finding of no negligence on Hallmark’s part. Thus, we affirm the jury’s verdict in his favor. See Womack v. Brickell, 232 Ark. 385, 337 S.W.2d 655 (1960).

At the trial, the trial judge gave the following pertinent jury instructions:

Instruction No. 9 [AMI 1501]
Maureen Bailey, individually and as Administratrix of the Estate of John Fletcher Dowdy, claims damages from Rose Care Center and has the burden of proving each of the four essential propositions:
First, that she sustained damages.
Second, The degree of skill ordinarily possessed and used by nursing homes in good standing in Jonesboro, Arkansas, or in a similar locality,
Third, That Rose Care Center failed to act in accordance with such standard, and
Fourth, That any failure by Rose Care Center to act in accordance with such standard proximately resulted in John Fletcher Dowdy suffering injuries which would not otherwise have occurred.
Instruction No. 13 [AMI 303]
A failure to exercise ordinary care is negligence. When I use the words “ordinary care,” I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act under those circumstances.
Instruction No. 22 [AMI 1505]
A nursing home must use ordinary care to furnish a patient the care and attention reasonably required by his mental and physical condition.

The appellant objected to instruction nine [AMI 1501] and instead proffered the following jury instruction to be given with the above instruction twenty-two [AMI 1505]:

AMI 203
First, Maureen Bailey, individually and as Administratrix of the Estate of John Fletcher Dowdy, Deceased, sustained damages;
Second, That Rose Care Center and Derry Hallmark, or one of them was negligent; and
Third, That such negligence was a proximate cause of Maureen Bailey’s, individually and as Administratrix of the Estate of John Fletcher Dowdy’s, Deceased, damages.

Below and here on appeal, appellant argued that AMI 203 together with AMI 1505 (instruction number twenty-two) was the proper standard of care owed by Rose Care Center. While the trial court included AMI 1505 in its jury instructions, it also instructed the jury with AMI 1501. The appellant contends that the trial court erred in using AMI 1501, and we agree.

AMI 1501 (instruction nine) is the jury instruction given in cases involving medical injuries. See Ark. Code Ann. § 16-114-206 (1987). Under Ark. Code Ann. § 16-114-201(3) (1987), the definition of medical injury includes “any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services.” A nursing home is included in the definition of medical care providers. Ark. Code Ann. § 16-114-201(2).

In order to establish, under AMI 1501 and § 16-114-206, that the medical care provider failed to act in accordance with the degree of skill and learning possessed by other members of the profession in good standing, the plaintiff must have expert testimony. See Sexton v. St. Paul Fire & Marine Ins. Co., 275 Ark. 361, 631 S.W.2d 270 (1982). On the other hand, AMI 1505 requires only that the plaintiff show that the hospital, sanitarium, or nursing home did not use ordinary care to furnish a patient the care and attention reasonably required by his medical or physical condition. As noted under AMI 303, above, it is for the jury to decide how a reasonably careful person would act under these circumstances. Expert testimony is only required when the asserted negligence does not lie within the jury’s comprehension; when the applicable standard of care is not a matter of common knowledge; and when the jury must have the assistance of expert witnesses to decide the issue of negligence. Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987).

Two prior opinions by this court, Sexton v. St. Paul Fire & Marine Ins. Co., 275 Ark. 361, 631 S.W.2d 270 (1982), and Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987), provide insight to the discussion and understanding of this issue. Appellees cite and rely on Sexton in this appeal. In Sexton, an elderly patient died from injuries sustained after he fell out of his hospital bed. The question before the court was whether the hospital’s failure to place a safety restraint vest on a patient fit within the meaning of a medical injury. The patient had fallen out of his bed before, and a doctor had authorized a safety restraining vest but left its use up to the nurses’ discretion. Relying on the fact that only a doctor could authorize the use of the safety restraint vest, this court held that the use of the vest is a professional service and thus fit under the definition of a medical injury. In Brown, the court extended the meaning of medical injury to include a patient who walked out of an unlocked door onto the roof of an alcohol treatment center. The patient either jumped or fell to his death. The court held that it was within the scope of the hospital’s professional services to provide a safe environment for this patient under the circumstances and failure to do so gives rise to a medical injury.

On reexamination, we conclude that the facts set out in Brown did not fall within the definition of medical injury. The Sexton case, as previously mentioned, involved the nonuse of a safety restraint vest that had been authorized by a doctor, leaving the final decision for the vest’s use to the nurses. The Sexton court analogized the situation before it to those holdings where courts had ruled that the raising of bedrails involved expert judgment of the health care provider. We take no exception to that reasoning. However, the circumstances in Brown did not involve a professional service but instead raised only the question of whether a patient was properly supervised by the health center’s staff. Likewise, in the present case, while Mr. Dowdy was in a wheelchair, he was not ordered by a doctor to be restrained and was able to move around the nursing home at will. In fact, as the nursing home staff testified, Mr. Dowdy was known to stay up late and watch television. And, while he often was confused, he was mentally alert and able to communicate.

In sum, Mr. Dowdy was under a doctor’s care while he was in the nursing home, but his death was not the result of a doctor’s treatment or order. Instead, the question is whether Mr. Dowdy was properly supervised by the one LPN and five nurse’s aides on duty that night. The answer to this question merely requires the jury to decide whether the nursing home used ordinary care in furnishing Mr. Dowdy the care and attention reasonably required by his mental and physical condition.

Accordingly, we hold that the trial court erred in giving AMI 1501 in the form of instruction number nine to the jury. An erroneous instruction which is likely to mislead the jury is prejudicial. See Howard v. Tri-State Ins. Co., 253 Ark. 405, 486 S.W.2d 77 (1972). Here, the jury was instructed on the wrong standard of care for the nursing home, thus we reverse and remand the jury verdict in Rose Care Center’s favor. To the extent that our opinion in Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 is inconsistent with this holding, it is overruled.

We address the appellant’s third and fourth points since they will likely recur on remand. The third point concerns the nursing home’s alarm system. The nursing home was equipped with an alarm system on the exit doors, but the alarm system was not in use at the time of the accident. At the trial, the appellant attempted to introduce evidence of the nursing home’s modification of the alarm system (and adoption of guidelines requiring its use) after the accident. The trial court excluded the evidence under A.R.E. Rule 407, which provides the following:

Whenever, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures if offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

The appellant argues that the evidence was admissible under Rule 407 because Ms. McMillian, the administrator of the nursing home, controverted the feasibility of the alarm system. After reviewing her testimony, we do not agree. While Ms. McMillian expressed some doubt as to whether the alarm could have prevented the accident by itself, she did admit in her testimony that having a reliable alarm system would be a good precautionary measure and preferable to just having the staff watching. Ms. McMillian’s statements supported the use of the alarm instead of controverting the feasibility of the alarm system; therefore the trial court was correct in excluding the evidence under Rule 407.

Likewise, we dismiss the appellant’s final argument that the trial court erred in omitting provision (c) of her proffered instruction which allowed damages for the loss of enjoyment of life and the capacity to enjoy life suffered by John Dowdy. In short, our law does not recognize damages for loss of the decedent’s enjoyment of life in wrongful death actions. See Ark. Code Ann. § 16-62-102 (1987); AMI 2215.

For the reasons stated above, we reverse and remand the jury’s verdict in favor of Rose Care Center and affirm the jury’s verdict for Derry Hallmark.


text:
    Jim WILSON v. STATE of Arkansas
    CR 91-140
    817 S.W.2d 203
    Supreme Court of Arkansas
    Opinion delivered October 21, 1991

      Henry & Mooney, by: Wayne Mooney, for appellant.

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

Appellant appeals from his conviction for rape of his twelve-year-old niece. He was sentenced to life imprisonment. His sole argument for reversal is that there is insufficient evidence to support the jury’s verdict. Appellant’s argument is without merit.

The court affirms where there is substantial evidence to support the verdict, Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978), and in determining whether substantial evidence exists, the court reviews the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). It is permissible for the court to consider only the testimony which supports the verdict of guilt. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). In addition, the court has held that, in rape cases, the requirement of substantial evidence is satisfied by the rape victim’s testimony. Jones v. State, 297 Ark. 499, 763 S. W.2d 655 (1989); Houston v. State, 293 Ark. 492, 739 S.W.2d 154 (1987).

Appellant was convicted under Ark. Code Ann. § 5-14-103(a)(3) (1987) which provides a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Here, appellant was thirty-one years old and his niece was twelve years old at the time of the alleged offense.

The victim’s testimony was quite lengthy and detailed. She resided in an apartment with her mother, brother and Angel, a twenty-one-year-old mentally handicapped woman, who lived with the family. During this period, appellant commenced a series of episodes when he would touch his niece’s breasts, vagina and buttocks. The victim’s mother, who worked from 3:00 p.m. to 11:00 p.m., had asked appellant and his wife to look after the children, and most of these touching episodes took place during the mother’s absence. The victim testified that appellant held her so she could not get away when he touched her and would give her money afterwards. She said the appellant had been drinking and smelled like alcohol on these occasions and estimated this type of sexual conduct happened approximately ten times.

The victim said that the appellant did more than “touching” after she and her family moved into a house, which appellant and his wife later moved into in order to conserve money. According to the victim, appellant then began placing “his private part” in her anus and vagina. She vividly described how appellant “stuck his private part” in her “rear” and vagina and added that he did so a total of approximately fifteen times. She said that appellant told her that if she said anything, he would beat her and would try to kill her mother. When she tried to tell her mother one time, she said the appellant hit her on the back with a belt buckle.

The victim’s brother corroborated having seen appellant touch his sister on one occasion. And Angel, who was present at the last episode when appellant raped the victim, told the victim’s mother about the incident. The mother later found a condom by her daughter’s bed, and noticed stains in her daughter’s panties. She also related an incident when she awakened early one morning to find appellant on the couch with her daughter positioned with her head at appellant’s feet and her butt in his lap. Appellant jumped up from the couch, looked funny and went to his room. The mother said she thought then that something was wrong, but her daughter denied it. And finally, a doctor who examined the victim three weeks after the reported rape, testified the victim’s hymen was not intact.

In his argument, appellant questions the credibility of the state’s witnesses and their accounts of what occurred. In sum, he contends their stories are unworthy of belief and fall short of substantial evidence. As we have already pointed out, the requirement of substantial evidence is satisfied by the rape victim’s testimony alone and that requirement was certainly met here. While her testimony required no corroboration, such corroboration evidence was furnished as well. Accordingly, we affirm the lower court’s verdict.

Pursuant to Ark. Sup. Ct. R. 11(f), we have reviewed the entire record and have found no other issues in this case that involve potentially prejudicial error to the appellant.


author: Donald L. Corbin, Justice.

text:
    Raymond BEAN v. John NELSON and Maxine Nelson, Husband and Wife
    91-82
    817 S.W.2d 415
    Supreme Court of Arkansas
    Opinion delivered October 21, 1991

      Woolsey & Wilson, by: Bruce R. Wilson, for appellant.

      Roderick H, Weaver, for appellee.
   Donald L. Corbin, Justice.

This appeal originated in the Johnson County Court when, pursuant to Ark. Code Ann. § 27-66-401 (1987), appellees filed a petition to establish a private road from appellant’s land to a public road. The Johnson County Court appointed three viewers to lay out the road and determined appellant’s damages at $500.00. Appellant appealed to the Johnson County Circuit Court which affirmed the county court’s decision. Appellant appeals to this court claiming three requirements of section 27-66-401 were not satisfied. We find no error and affirm. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(c).

We consider the evidence in the light most favorable to appellees and affirm unless the decision of the trial court is clearly erroneous. Ark. R. Civ. P. 52; Armstrongs. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983). As viewed most favorably to appellees, the evidence produced at trial reveals the parties own adjacent forty-acre tracts of land. Appellant’s property lies to the west of appellees’ property. A strip mine runs along the northern one-half of appellees’ land and continues in a south-westerly direction onto part of appellant’s land. Cole Creek Road is a public road running east and west on the north side of the strip mine. Another public road, Cove Creek Road, runs north and south down the middle of appellant’s property and intersects Cole Creek Road. Also on appellant’s land is a road running in a northeasterly direction from Cove Creek Road to the boundary line between appellant’s and appellees’ properties. This road was first used by previous generations of appellees’ family to access their home and was most recently used by appellant as a logging road to haul timber off his land. This is the road which appellees sought to establish pursuant to section 27-66-401.

Section 27-66-401 provides as follows:

When the lands, dwelling house, or plantation of any owner is so situated as to render it necessary to have a private road from such lands, dwelling house, or plantation to any public road or navigable watercourse over the lands of any other person and the other person refuses to allow that owner the private road, then it shall be the duty of the county court to appoint viewers to lay off the road, provided the owner:
(1) Gives notice to such person twenty (20) days before application to the court;
(2) Petitions the court;
(3) Shows necessity for the private road;
(4) Shows that the person refuses to allow the road; and
(5) Deposits with the clerk of the court sufficient money to pay all costs and expenses accruing on account of the petition, notice, view, and survey of the private road.

Appellant’s first argument on appeal is that the trial court erred in finding appellees had shown a necessity for the roadway as required by section 27-66-401. Appellant argues the statute requires appellees to be “landlocked” in order to show the necessity of the requested road and that appellees have failed to show such a necessity in that appellees have access to their property from the east. Appellant also claims he offered appellees access to the southern part of their property via a road on the southern border of his property. Because appellees have a means of accessing their property other than the requested road, appellant asserts they failed to show the requested road is a necessity. Appellant supports this claim by citing Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983). In Armstrong, we affirmed the trial court’s order denying appellant’s petition to establish a private road over appellee’s property where the proposed road, although less costly, inconvenienced the appellee school district because it intersected a school parking lot and endangered the school children; in addition, the proposed road would have benefited only appellant.

Appellees, on the other hand, assert that they are not required to show they have no other means of ingress and egress to their property. They also dispute the existence of the east entrance claimed by appellant. While they do recognize it would be possible to enter their land from the south via the alternative route offered by appellant, they point out this route would be very expensive and involve building a road on their land up a very steep grade as well as building a bridge across the strip pit. If appellees were allowed to access their property from the northern road already existing on appellant’s land, they claim it would not cost them near as much because the land is flatter and the bridge across the strip pit is already existing on appellant’s land.

“What the petitioner must show is a reasonable necessity for a road, not an absolute necessity.” Attaway v. Davis, 288 Ark. 478, 480,707 S.W.2d 302, 303 (1986). It is not required that appellees show an absolute necessity for the private road by showing that they had no other means of reaching the public highway. Houston v. Hanby, 149 Ark. 486, 232 S.W. 930 (1921).

On facts strikingly similar to the present case, we held in Houston, supra, that the trial court’s finding that a proposed private road was necessary to enable appellee to haul logs to a public road was sustained by the evidence. The evidence revealed that the proposed road ran through appellant’s cleared land, that an alternative route suggested by appellant was along a steep grade with sharp turns rendering it difficult for logging trucks to pass, and that the alternative route would be a great deal more costly to appellee.

In the present case, the trial court recognized the alternative routes available to appellees, but went on to find their requested road was necessary. Given the similarities between the present case and Houston, supra, we cannot say the trial court’s finding that appellees’ requested road was necessary was clearly erroneous.

As his second claim on appeal, appellant asserts the trial court erred in finding appellant refused to allow appellees a road across his lands. Appellant claims that because he offered them access to a road other than the one appellees requested, they failed to meet their burden under the statute. We do not agree.

Section 27-66-401 and section 27-66-401(4) speak in terms of “the” road. In other words, the statute requires appellees to show appellant refused them access to the specific road they requested, not merely that appellant refused them access to just any road on his land.

As we stated previously in Houston, supra, the fact that an alternative route is offered is not determinative of whether the requested road should be allowed under the statute. See Houston, 149 Ark. at 490-91, 232 S. W.2d at 932. As the alternative route is much more costly to appellees than their requested route, and as their requested route is of use to appellant as well as appellees, we cannot say the trial, court was clearly erroneous in granting appellees’ petition for the requested road.

As his final point on appeal, appellant argues the trial court erred in fixing the location of the road in such a way that did not produce the least inconvenience to appellant. In support of this argument, appellant cites the following quotation from Pippin v. May, 78 Ark. 18, 21, 93 S.W. 64, 65 (1906):

In determining whether such a road is necessary, the court must, of course, take into consideration, not only the convenience and benefit it will be to the limited number of people it serves, but the injury and inconvenience it will occasion the defendant through whose place it is proposed to extend it.

At the time this lawsuit was tried, the road requested by appellees was already existing on appellant’s land and had been used by appellant for the purpose of allowing logging trucks and equipment access to the timber in the area. This is the same purpose for which appellees requested the use of this road. The three court-appointed viewers testified the requested road would be the best way for appellees to gain access to the north side of their property.

After considering all the evidence, including the report and testimonies of the three viewers, the trial court stated in its letter opinion:

In view of the testimony, the Court further finds that the proposed roadway along the existing roadway which was placed on Mr. Bean’s property for the removal of timber and which connects the Nelsons’ property to a public roadway would be the best location. This roadway appears to the Court to be the most convenient and least injurious to all parties involved.

It is clear from this letter opinion that the trial court weighed all the correct factors. We cannot say the trial court was clearly erroneous in reaching its conclusion that the requested road was the least inconvenient to all parties involved. Accordingly, we affirm the trial court’s judgment granting appellees a private road over appellant’s land.


author: Donald L. Corbin, Justice. Steele Hays, Justice, dissenting.

text:
    Robert Vincent LEHENY v. STATE of Arkansas
    CR 91-180
    818 S.W.2d 236
    Supreme Court of Arkansas
    Opinion delivered October 21, 1991

      Lyons & Emerson, by: Scott Emerson, for appellant.

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

Appellant, Robert V. Leheny, argues for reversal of his conviction of endangering the welfare of a minor in the second degree. His primary allegation of error is that the charge was improper because the offense of endangering the welfare of a minor was not intended to encompass allegations of sexual misconduct. We agree. Accordingly, we reverse on statutory construction grounds, and we will not address appellant’s other arguments for reversal.

The state originally charged appellant, former elementary school principal at St. Paul Catholic Church School in Pocahontas, with both sexual abuse and endangering the welfare of a minor in the second degree. Ark. Code Ann. §§ 5-14-108 and 5-27-204 (1987). To support these charges, the state presented the testimony of the alleged victim, an eight-year-old female student at the school, and the testimonies of the child’s former school teacher and a government investigator. The teacher and the investigator related statements that the child had made to them about appellant’s conduct.

The most incriminating evidence gleaned from these testimonies was that appellant had taken the child to his school office, where he placed the child in his “hard lap.” (The government investigator, Wilma Rogers, testified that the child told her that appellant’s lap felt like a “hard stick.”) The child further testified that appellant rubbed her on the leg and under her arms. All of this supposed contact between the child and appellant occurred during school hours while both were fully clothed.

At the close of the state’s case, appellant moved for a directed verdict on both the sexual abuse charge and the endangerment charge. Although the court commented that the sufficiency of the evidence was “really thin,” the court denied appellant’s motions. Appellant renewed his motions following the presentation of his defense. Again, the court denied appellant’s motions, and instructed the jury on the elements of both offenses.

Section 5-14-108 provides that an adult who engages in sexual contact with a person that is less than fourteen and not his spouse is guilty of sexual abuse in the first degree. In the instant case, the only disputed element of this offense was the sexual contact element. The trial court properly instructed the jury that “sexual contact” means any act of sexual gratification involving the touching, directly or through the clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Ark. Code Ann. § 5-14-101(8) (1987). To support the sexual abuse charge, the state relied on the testimony about appellant holding the child on his “hard lap,” and improperly rubbing and touching the child.

The jury ultimately acquitted appellant of sexual abuse. However, we have reviewed the state’s proof on the sexual abuse charge in order to explain our reversal of appellant’s conviction on the endangerment charge. Section 5-27-204 sets out the elements of endangering the welfare of a minor child:

(a) A person commits the offense of endangering the welfare of a minor in the second degree if he knowingly engages in conduct creating a substantial risk of serious harm to the physical or mental welfare of one known by the actor to be a minor.

In the instant case, the state relied on the same evidence to support the endangerment charge that it relied on to support the sexual abuse charge. However, the Commentary to the endangerment statute specifically provides, “This section is designed to safeguard minors and incompetents from deletrious non-sexual activities.” (Emphasis supplied.) We adhere to the Commentary to the criminal code unless we are clearly convinced that it is erroneous or contrary to the settled policy of the state. Standridge v. State, 290 Ark. 150, 717 S. W.2d 795 (1986). In the instant case, we find that the Commentary means exactly what it says. We certainly cannot say that it is contrary to settled policy for the legislature to provide for sexual offenses under another section of the criminal code. Furthermore, we are mindful of the basic criminal law maxim that criminal statutes are to be strictly construed and any doubts are to be resolved in favor of the defendant. Knapp v. State, 283 Ark. 346, 676 S.W.2d 729 (1984).

In order to evade the legislature’s obvious intent to exclude sexual offenses from prosecution under the endangerment statute, the state argues that the endangerment charge was supported by the child’s testimony regarding appellant’s “non-sexual” conduct. To support this argument, the state cites specifically to the child’s testimony that appellant got mad and swung her backpack at her.

We do not believe the state’s “non-sexual” argument. Clearly, the state relied throughout the trial on the sexual connotations of appellant’s alleged conduct to support the endangerment charge. Following appellant’s motion for a directed verdict on the endangerment charge, the state explicitly argued that the endangerment offense encompassed appellant’s alleged sexual misconduct. The state also focused solely on the sexual allegations in both its opening statement and closing argument. In sum, the testimony regarding the backpack incident fills merely a few lines of a 407 page trial transcript. We therefore cannot believe that the state charged appellant with endangerment based on his “non-sexual” conduct of swinging the child’s backpack on one occasion.

The state obviously charged appellant under the endangerment statute because it hoped to convict appellant of “something” in the event of acquittal on the sexual abuse charge. However, the Commentary explicitly provides that the endangerment offense should not be used as an alternative to sexual offense charges. Since we agree with appellant that the state’s case centered on allegations of sexual abuse, we believe that the endangerment charge was improper.

Even if we accept the state’s argument that the testimony concerning the backpack provided the basis for the endangerment charge, we find that such evidence is insufficient to support appellant’s conviction. Viewing the “backpack” testimony in the light most favorable to the state, we find no evidence in the record that this single incident posed a substantial risk to the physical or mental welfare of the child. The child testified that she was crying when she went back to her classroom after the incident. While the child may well have been upset, we cannot equate an upsetting incident with an incident posing a substantial risk to the physical or mental welfare of a child. As appellant points out, all children are upset by their principal to some degree. However, we cannot base a criminal conviction on evidence that an elementary school principal upset one of his students. Since the state did not present evidence concerning the extent to which the “backpack” incident affected the child’s mental welfare, we find that there was insufficient evidence to support the endangerment charge. Accordingly, we reverse and dismiss.

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

Steele Hays, Justice, dissenting.

The evidence by the state was that the appellant rubbed the victim, an eight-year-old female, under her arms and on her legs and thighs, that he would hold her tightly on his lap and would not let her go. The child compared his lap to a “hard stick,” and, “I felt something hard in his lap that made me scared.” There was testimony that the child was deeply troubled by these episodes and was nervous, withdrawn and frightened and did not want to go to school. The jury found that evidence credible and therefore the appellant’s conduct comes within the proscription of Ark. Code Ann. § 5-27-204(a) (1987):

(a) A person commits the offense of endangering the welfare of a minor in the second degree if he knowingly engages in conduct creating a substantial risk of serious harm to the physical or mental welfare of one known by the actor to be a minor.

The majority relies on the Commentary to Ark. Code Ann. § 5-27-202 (1987). But the Commentary merely suggests the statute is “designed” to protect minors and incompetents from deletrious non-sexual activities, hardly the same as stating that the statute has no application to sexual offenses. Besides, the Commentary is advisory, whereas the language of the statute, if plain, is obligatory. Britt v. State, 261 Ark. 488, 541 S.W.2d 84 (1977). We have said that where the language of the statute is clear and unambiguous and susceptible of a sensible construction, resort to extrinsic and collateral aids in construing it is not permitted. Cross v. Graham, 224 Ark. 277, 272 S.W.2d 682 (1954).

As to the reference to strict construction of criminal statutes, the majority simply invokes the doctrine, with no attempt to apply it to the case before us, nor even a suggestion that the statute is ambiguous. If the majority is holding that strict construction requires that unambiguous language which purports to prohibit any conduct that creates a substantial risk of serious harm to the physical or mental welfare of a minor, has no application where such conduct is sexual in nature, that is a novel use of the rule and reads a provision into the statute which is neither present nor implied. The rule of strict construction does not require that a statute be given the narrowest possible meaning or that the evident legislative intent be disregarded. United States v. Giles, 300 U.S. 41 (1936).

Criminal statutes are strictly construed so that conduct, thought to be lawful, will not be criminalized by virtue of an ambiguity in the statute that leaves the issue in doubt. That is hardly the situation before us. See generally United States v. Alpers, 338 U.S. 680 (1950); United States v. Hood, 343 U.S. 148 (1951) (“A statute should not be construed so as to read out what as a matter of ordinary English speech is in.”)

I respectfully dissent.

Holt, C.J., joins in dissent.


author: Robert L. Brown, Justice.

text:
    ESTATE of Virgie HASTINGS v. PLANTERS AND STOCKMEN BANK
    91-92
    818 S.W.2d 239
    Supreme Court of Arkansas
    Opinion delivered October 21, 1991

      Dan Stripling, for appellant.

      Murrey L. Grider, for appellee.
   Robert L. Brown, Justice.

This is an appeal from an order of the chancery court denying the appellant, the Estate of Virgie Hastings, an incompetent, judgment on the pleadings against the appellee, Planters and Stockmen Bank. It is also a cross appeal by the cross appellant Bank from an order denying the Bank summary judgment on grounds of laches. We affirm on direct appeal and dismiss the cross appeal.

On December 28, 1983, Richard Hastings and Laveda Hastings, his wife, who were the owners of a sports business named Sportshaven in Jonesboro, executed a promissory note in conjunction with Virgie Hastings, the grandmother of Richard Hastings, in the amount of $169,000 in favor of the Bank. As security for this note, Virgie Hastings assigned a promissory note made payable solely to her by Louis Ahrent in the principal amount of $256,000. On December 7, 1984, a guardian of the person and the estate of Virgie Hastings was appointed due to her incompetency.

On October 3, 1985, the Bank sued to collect on its promissory note and joined Virgie Hastings as a party defendant. The Estate answered and counterclaimed, denying execution of the note and raising lack of mental capacity to make the note. On July 15, 1986, the Bank obtained summary judgment against Richard and Laveda Hastings. On December 11, 1987, the Estate amended its counterclaim to include a prayer for repayment of all sums paid the Bank from the Ahrent proceeds or, alternatively, for any overage paid the Bank by the Estate. On January 4, 1988, the circuit court expanded its summary judgment order to include the Estate of Virgie Hastings and terminated all issues pending between the Bank and the Estate.

On the first appeal by the Estate, this court reversed the circuit court’s expanded summary judgment order on the basis that material facts concerning Virgie Hastings’s execution of the note remained to be determined and the order was not final. See Estate of Hastings v. Planters and Stockmen Bank, 296 Ark. 409, 757 S.W.2d 546 (1988). On remand the Bank first moved for summary judgment on grounds that the Estate’s counterclaim was barred by laches. This motion was denied. The Bank then moved to transfer the case to equity due to its laches defense and in that motion declared that it “requests no relief from the Estate of Virgie Hastings, the incompetent.” The Estate moved for judgment on the pleadings on grounds that this statement in the Bank’s motion evidenced an abandonment of its claim against the Estate. On February 21, 1990, the circuit court denied the Estate’s motion for judgment and transferred the case to chancery. By order entered December 29, 1990, the chancery court, after a full hearing, found that the money from the Ahrent note had overpayed the Estate’s obligation to the Bank, and that the Estate was entitled to judgment against the Bank in the amount of $60,196.23. In that same order the chancery court found that Virgie Hastings was competent when she executed the note to the Bank and assigned the Ahrent note on December 28, 1983.

The Estate first argues that the chancery court erred in denying its motion for judgment on the pleadings under Ark. R. Civ. P. 12(c) (1991). The thrust of the Estate’s argument is that the Bank “pled itself out of court” by stating that it requested no relief against the Estate in its motion to transfer.

There was an obvious reason for the Bank to relinquish its claim against the estate — it had been paid in full by the proceeds from the Ahrent note. To argue now, as the Estate does, that this relinquishment somehow voids the Bank’s prior cause of action and mandates repayment of all payments made to the Bank on behalf of Virgie Hastings, as prayed for in the Estate’s counterclaim, does not logically follow.

It is the position of the Estate that a party must put on proof and take judgment before it can be made whole. The Estate gives much weight to the fact that the Bank did have judgment against the Estate when it collected the Ahrent proceeds to pay off the Hastings note. There was also a stipulation between the Bank and the Estate at the time the Ahrent proceeds were paid which stated that payment would not affect the Estate’s counterclaim against the Bank in the event that the judgment against the Estate was reversed on appeal.

But the fact that the summary judgment against the Estate was reversed by this court does not automatically mean that the Ahrent note proceeds paid to the Bank in satisfaction of Virgie Hastings’ obligation must be returned. The chancery court after full hearing found that Virgie Hastings was lucid on December 28,1983, and knew what she was doing when she signed the note and assigned her interest in the Ahrent proceeds. That is what decides this matter. The fact that a valid judgment was not in effect at the time of payment is not determinative especially since the Estate had its day in court and was able to raise its defenses and present evidence on its counterclaim.

Motions for judgments on the pleadings are not favored by the courts. Reid v. Karoley, 229 Ark. 90, 313 S.W.2d 381 (1958); see also 71 C.J.S. Pleadings §§ 424-425. Such a judgment should be entered only if the pleadings show on their face that there is no defense to the suit. Brunson v. Little Rock Road Machinery Co., 251 Ark. 721, 474 S.W.2d 672 (1972). When considering the motion, we view the facts alleged in the complaint as true and in the light most favorable to the party seeking relief. Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991); Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989).

Here, for the Estate to prevail on its counterclaim, it needed to establish fraud, incompetence, or undue influence at the time Virgie Hastings executed the note and assignment. The pleadings — that is, the amended complaint, answer and amended counterclaim, and answer to amended counterclaim — on their face did not resolve these issues, which is argument enough against a judgment on the pleadings. Moreover, the Estate went outside of the pleadings in making its Rule 12(c) motion and pulled allegations of abandonment of the claim from the Bank’s motion to transfer. A motion is clearly not a pleading. See Ark. R. Civ. P. 12(b); see 2A Moore’s Federal Practice ¶ 7.05 (2d ed. Supp. 1991). The chancellor did not err in denying the Estate’s motion for judgment.

For its second issue the Estate covers much of the same ground and argues that the Bank waived its claim against the Estate in its motion to transfer and should not be permitted to retain the Ahrent proceeds because, again, it deprived the Estate of the ability to raise its defenses and claims. We do not agree. The Estate was able to and, indeed, did advance its defenses and counterclaim against the Bank and prevailed on its claim that the Bank had been overpaid. The Estate argues specifically that it was denied the ability to contest an assignment of the Ahrent note. The Estate, though, offered no proof at trial that Virgie Hastings’s assignment of the Ahrent note was invalid. It merely raised the issue in argument at the end of the hearing. We will not consider arguments on appeal that were not fully developed at the trial level. See Goldsmith v. Arkansas Dept. of Human Services, 302 Ark. 98, 787 S.W.2d 675 (1990). We further note that there was nothing to prevent the Estate from amending its counterclaim in timely fashion and presenting whatever proof it deemed necessary to prevail on this point. The Estate failed to do this.

Finally, on cross appeal the Bank challenges the chancery court’s ruling which denied the Bank’s motion for summary judgment on grounds of laches. According to the Bank, the Estate was unreasonably dilatory in asserting overpayment of the note with the Ahrent proceeds. The Bank brings its cross appeal in an improper form. We have long held that denial of summary judgment is not an appealable order or subject to review after a trial on the merits. See McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991); Rick’s Pro Dive ‘n Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991).

Affirmed on direct appeal and dismissed on cross appeal.


author: Per Curiam.

text:
    Bobby BRATTON v. Jim Guy TUCKER, et al.
    91-161
    816 S.W.2d 888
    Supreme Court of Arkansas
    Opinion delivered October 21, 1991

      Art Dodrill, for appellant.

      Ken Cook and James L. Glover, for appellee.
   Per Curiam.

This case was initially filed in the Arkansas Court of Appeals and involves a second appeal. On June 3,1991, the appellant filed a motion in the court of appeals asking that this case be certified to the Arkansas Supreme Court. See Bobby Bratton v. Mitchell, Williams, Selig, Jackson and Tucker, 302 Arkansas 308, 788 S.W.2d 955 (1990). Motions to dismiss were also filed in the court of appeals by various appellees.

On June 19, 1991, the appellant’s “motion to certify the Supreme Court, to remand and to stay brief time,” as well as all other motions filed by the parties in the court of appeals, were certified to this court. The various appellees again filed motions to dismiss. The motions of all parties were submitted to this court on June 24, 1991; on July 1, 1991, the appellees’ motions to dismiss the appeal were granted, and the appellant’s motion to remand and to stay briefing time was declared moot.

Subsequent to this July 1, 1991, order of dismissal, the appellant has filed petitions for “reconsideration” and a “motion to recall order.” On July 15, 1991, the appellant’s requests were denied. The appellant continues to file pleadings in this court such as this petition for writ of error coram nobis, which are without merit and which are burdensome to the administrative affairs of the court. The clerk is therefore directed to dismiss this petition for writ of error coram nobis and to accept no further filings by Bobby Bratton with reference to proceedings involving Case No. 91-161, regarding Mitchell, Williams, Selig, Jackson and Tucker, Jim Guy Tucker, et al.

IT IS SO ORDERED.

Brown, J., not participating.


text:
    IN RE Warren H. WEBSTER, Bar ID #73125
    91-112
    816 S.W.2d 612
    Supreme Court of Arkansas
    Opinion delivered October 21, 1991
   Per Curiam.

Warren H. Webster, Bar Id. 73125, has petitioned this Court to accept the surrender of his license to practice law. We note that the affidavit attached to the petition refers to a “plea agreement” that Mr. Webster’s license would be voluntarily surrendered for at least three years. However, there is no provision in the Rules of this Court for a conditional surrender of a license to practice law, such surrenders are absolute. There is provision for later requests for reinstatement.

Upon the recommendation of the Committee on Professional Conduct we accept the surrender of the license of Warren H. Webster without qualification.