text:
    Peter VAN HOUTEN v. Rick PRITCHARD
    93-473
    870 S.W.2d 377
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994
    [Rehearing denied March 14, 1994]

      Laser, Sharp, Mayes', Wilson, Bufford & Watts, P.A., by: Richard N. Watts and Brian Allen Brown, for appellant.

      Kitterman Law Firm, by: Gregory S. Kitterman, for appellee.

      Glaze and Corbin, JJ., not participating.

   Robert H. Dudley, Justice.

The defendant, Peter Van Houten, had owned a cat for three years before it bit the plaintiff, Rick Pritchard. During that period it had never shown a disposition toward biting or being abnormally dangerous, and the defendant allowed it to run at large. On March 21, 1992, the cat entered plaintiff’s garage and urinated, and, as plaintiff tried to take it outside, it bit plaintiff on his right index finger. As a direct result of the bite, plaintiff has undergone four surgeries, is fitted with a plastic finger joint, and has expended more than $39,000 for medical treatment.

Plaintiff filed this suit against the defendant to recover his damages. The complaint contained one count that alleged strict liability and another that alleged ordinary negligence. The trial court granted a directed verdict on the strict liability count, but submitted the negligence count to the jury. Plaintiff proved that the cat had previously entered his garage and urinated, or “sprayed,” to mark his territory as a tomcat. It again urinated in the garage immediately before plaintiff picked it up and it bit him. The jury returned a plaintiff’s verdict in the amount of $80,000. The defendant appeals. We reverse and dismiss.

In order to fully address the arguments, we first set out the doctrine of strict liability as it relates to this case. Strict, or absolute, liability is a common law rule by which a defendant is made liable for doing some ultrahazardous act. When a defendant carries out such an ultrahazardous act he is liable irrespective of negligence. Under one phase of the rule of absolute liability, the owner of an animal is strictly liable for injuries inflicted on a plaintiff if (1) the animal was of a vicious species, or (2) the animal, though domesticated, had dangerous tendencies which were known to the owner. Jacob Sharp, Jr., Comment, Absolute Liability in Arkansas, 8 Ark. L. Rev. 83 (1953). This court first adopted this phase of the rule in Holt v. Leslie, 116 Ark. 433, 173 S.W.2d 191 (1915), and has subsequently reaffirmed it in a number of cases. To illustrate this phase of the rule, assume that the owner of a dog known to be vicious keeps the animal in a steel cage and exercises extreme care to prevent its escápe. The animal, however, does escape, through no fault of its owner, and attacks an innocent passerby. The dog’s owner is strictly liable regardless of any precautions he may have taken to avoid the dog’s escape. See Strange v. Stovall, 261 Ark. 53, 546 S.W.2d 421 (1977); see also J. Herman Ivester, Note, Torts—AMI 1602 and 1603—Strict Liability or Negligence?, 24 Ark. L. Rev. 593 (1971).

Appellant refers to this aspect of the rule as the “one bite” rule of strict liability. Actually, the label “one bite” is out . of harmony with a modem humanitarian society and our holdings, and we have said that it is not necessary to prove that the owner knew that his animal had ever before bitten anyone; rather, it is only necessary to prove that the owner had notice of the propensities of the animal to injure people. Bradley v. Hendricks, 251 Ark. 733, 474 S.W.2d 677 (1972). We have also held that if the owner of an animal has notice of its propensity-to injure people, it is immaterial whether the animal acts out of savagery or out of playfulness. Finley v. Smith, 240 Ark. 323, 399 S.W.2d 271 (1966). In this case the trial court held that the plaintiff failed to prove the cat had a propensity to injure people, which was known or should have been known by the defendant, and granted a directed verdict on the strict liability count. The plaintiff does not cross-appeal from that directed verdict. As a result, the law of the case is that the defendant-appellant did not know, or have reason to know, the cat had a propensity to injure people.

The defendant-appellant, in part of his argument, contends that there is no cause of action for ordinary negligence in allowing a domestic animal to run at large. The argument is partially correct. However, there are some causes of action for ordinary negligence in allowing domestic animals to run at large. The owners of cattle, horses, and other large farm animals that could cause substantial damage if allowed to run at large have a duty to control their animals. See AMI Civ.2d 1601. In Finley v. Glover, 229 Ark. 368, 315 S.W.2d 928 (1958), we affirmed a judgment because the defendant negligently allowed his livestock to enter on the plaintiff’s rice field and graze. There have been numerous cases involving the negligent maintenance of fences and the resulting damage caused when livestock escaped and entered a roadway. See, e.g., Smith v. R.A. Brooks Trucking Co., 280 Ark. 510, 660 S.W.2d (1983); Cosby v. Oliver, 265 Ark. 156, 577 S.W.2d 399 (1979); see also Ark. Code Ann. § 5-62-122 (Repl. 1993).

In Rogers v. Stillman, 223 Ark. 779, 268 S.W.2d 614 (1954), we held that violation of a statute prohibiting livestock from running at large was evidence of ordinary negligence. In Bolstad v. Pergeson, 305 Ark. 163, 806 S.W.2d 377 (1991), we affirmed a judgment for damages caused when the defendant allowed his dog to run at large in violation of a leash law. We held that violation of the leash law was some evidence of ordinary negligence.

Contrary to the above cited ordinary negligence cases, the case at bar does not involve a large domestic animal which will invariably cause damage if allowed to roam at will, and neither does it involve the violation of a leash law. Instead, it involves a domestic animal that is not likely to do harm if allowed to run at large. Whether a duty is owed between the parties is a matter of law, Stacks v. Arkansas Power & Light Co. 299 Ark. 136, 771 S.W.2d 754 (1989), and there is no duty to control a domestic animal that is not likely to do harm if allowed to run at large. Section 518 of the Restatement (Second) of Torts provides:

Liability for Harm Done by Domestic Animals That Are Not Abnormally Dangerous
Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if,
(a) he intentionally causes the animal to do the harm, or
(b) he is negligent in failing to prevent the harm.

Restatement of Torts § 518 (1989).

Further, it provides:

Animals permitted to run at large. There are certain domestic animals so unlikely to do harm if left to themselves and so incapable of constant control if the purpose for which it is proper to keep them is to be satisfied, that they have traditionally been permitted to run at large. This class includes dogs, cats, bees, pigeons and similar birds and also poultry, in a locality in which by custom they are permitted to run at large, and therefore are not regarded as livestock for whose intrusion upon the land of another their possessor is strictly liable under the rule stated in § 504. It would be impossible to confine bees within the owner’s premises without entirely destroying their usefulness as honey producing insects except at prohibitive expense. Although it is not impossible to confine dogs to the premises of their keepers or to keep them under leash when taken into a public place, they have been traditionally regarded as unlikely to do substantial harm if allowed to run at large, so that their keepers are not required to keep them under constant control. The same is true of cats. However, although the possessor or harborer of a dog or cat is privileged to allow it to run at large and therefore is not required to exercise care to keep it under constant control, he is liable if he sees his dog or cat about to attack a human being or animal or do harm to crops or chattels and does not exercise reasonable care to prevent it from doing so.

Id., § 518 cmt. j.

In summary, the owner of a domestic cat may permit his cat to run at large unless it has shown a propensity toward violence, or unless an ordinance or statute provides otherwise. The trial court ruled that the defendant had no notice of any propensity toward violence by the. cat and granted a directed verdict on the issue of strict liability. The plaintiff does not cross-appeal from that ruling. The law of the case then is that the plaintiff failed to prove the cat had a propensity toward violence. In addition, the plaintiff failed to prove violation of any kind of leash law. Thus, the defendant had no duty to confine or control the cat, and the trial court erred in instructing the jury that the defendant had a “duty to use ordinary care to keep the cat from running at large.” The defendant-appellant is also correct in his argument that the trial court also erred in refusing to grant a directed verdict since the defeAdant had no duty to control the cat and, as a result, did not breach a duty to confine or control the cat. Because of the errors, we must reverse and dismiss.

Reversed and dismissed.

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

Glaze, J., not participating.

Steele Hays, Justice,

dissenting. The majority summarily concludes that “the owner of a domestic cat may permit his cat to run at large unless it has shown a propensity toward violence, or unless an ordinance or statute provides otherwise.” Because I believe there are circumstances under which an owner may be liable for failure to exercise ordinary care to control or restrain a domestic animal, I disagree with the majority’s decision.

Peter Van Houten (defendant below) has appealed the trial court’s decision denying his motion for directed verdict and his motion for judgment notwithstanding the verdict on the issue of ordinary negligence. An appeal from the denial of a motion for a directed verdict or jnov is a challenge to the sufficiency of the evidence, and the test for determining' the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993). Substantial evidence is that evidence which is forceful enough to compel a conclusion, one way or the other, beyond suspicion or conjecture. Id. In determining whether substantial evidence exists, we review the evidence in a light most favorable to the appellee. Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993).

I also except to the assertion of the majority that, because the plaintiff (appellee) did not cross appeal from the directed verdict on the issue of strict liability, the law of the case is the plaintiff failed to prove the cat had a propensity toward violence. There was no onus on appellee to cross appeal. “A cross appeal is required only when the appellee seeks affirmative relief that he failed to obtain in the trial court, not when he won the case below and merely asks that the judgment be affirmed.” Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979). The trial court’s directed verdict addressed only the claim of strict liability, not the claim of negligence, and having prevailed on that theory the appellee asks only that the judgment be affirmed. Indeed, in order for a person injured by a domestic pet to recover from the pet’s owner without the necessity of proving the owner’s negligence, he must prove that the animal had vicious tendencies or propensities. Bradley v. Hendricks, 251 Ark. 733, 474 S.W.2d 677 (1972); Hamby v. Haskins, 275 Ark. 385, 630 S.W.2d 37 (1982). However, to make a prima facie case of negligence, the plaintiff need only show that under the circumstances the defendant failed to exercise ordinary care to control or restrain. Rickrode v. Wistinghausen, 340 N.W.2d 83 (Mich. App. 1983); Restatement (Second) of Torts § 518 (1977); Cheryl Bailey, Annotation, Liability—Injury Caused by Cat, 68 A.L.R.4th 823, § 2a (1989). Restatement (Second) of Torts § 518 (1977), comment h, states that an owner of a domestic animal is required to realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances. Further, comment k provides that there may be circumstances under which it will be negligent to permit an animal to run at large, even though it is of a kind customarily allowed to do so and under other circumstances there would be no negligence.

We have defined negligence as the failure to do something that a reasonably careful person would do; a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992). Further, it is not necessary to foresee a particular injury, but only to foresee that the general act or omission is likely to cause injury. Bolstad v. Pergeson, 305 Ark. 163, 806 S.W.2d 377 (1991).

Applying the substantial evidence standard to the facts of this instant case, I find the evidence of negligence was more than substantial. Mr. Van Houten agreed that “when a tomcat is in his mating cycle that they get a little hostile sometimes.” He was aware that his cat roamed around and had been seen “spraying” in Mr. Pritchard’s garage/upholstery shop. Mr. Van Houten knew the Pritchards had a female cat that they allowed to enter through their garage. Nevertheless, Mr. Van Houten left his cat outside for the weekend to fend for itself without food or water. Once again, Mr. Pritchard discovered the cat in his garage. As Mr. Pritchard was attempting to remove the cat, the cat bit him and would not let go. Mr. Pritchard testified that the cat held on and had to be slung loose. It was not a case of the cat biting simply to escape, it had to be forcibly disengaged.

Further, Mr. Van Houten acknowledged that while he was aware his cat was roaming the neighborhood and being a nuisance to others, he did not care and it was his common practice to allow the cat to run at large when he and his wife went to the lake for the weekend. It is significant that Mr. Van Houten did not see to it that his cat was vaccinated, a clear violation of Ark. Code Ann. § 20-19-202 (1987). Although he first stated the cat’s vaccinations were current, Mr. Van Houten admitted the cat had only been vaccinated years ago as a kitten. It is also material that the subdivision’s bill of assurance provides: “All household pets on the property shall be kept on a leash at all times when they are outside of a residence constructed on a lot.” Finally, upon returning from the doctor’s office the day after he was bitten, Mr. Pritchard informed Mr. Van Houten the cat needed to be quarantined for ten days. Although the cat was sitting in the window at that time, Mr. Van Houten turned the cat loose that evening and it has not been seen since.

The evidence, as I view it, was entirely sufficient to support the jury’s conclusion that Mr. Van Houten failed to exercise ordinary care.

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


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Alfred PALMER v. STATE of Arkansas
    CR 93-154
    870 S.W.2d 385
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994

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

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

On January 27, 1989, the nude body of Pamela Smith was found floating in a barrow pit in Pope County. Mrs. Smith had been missing for four days. The body had been in the water for about twenty-four hours. Death was attributed to a loss of blood from multiple stab wounds. There were numerous abrasions and contusions on the body and evidence of sexual abuse.

In July appellant Alfred Palmer consented to the testing of a bedroom in his house with luminol. The results were positive. Two and a half years later, on January 22, 1992, luminol tests were again conducted in the bedroom, this time pursuant to a search warrant, again with positive results. Palmer was arrested the same day. On January 24 he was charged with the capital murder of Pamela Smith.

Palmer filed motions in limine to exclude the luminol test results at trial. After a hearing those motions were denied. Palmer was not found guilty of either capital or first degree murder, but was convicted of second degree murder and sentenced to twelve (12) years in the Department of Correction. Palmer appeals on the single point that the trial court erred in admitting the results of luminol testing without additional evidence that the test results were attributable to human blood related to the crime. Finding error in the admission of the luminol test results, we reverse the judgment of conviction and remand for a néw trial.

Two witnesses for the state from the State Crime Laboratory, Donald Lee Smith, criminologist, and Scott Sherrill, forensic serologist, testified regarding the results of the luminol tests. Smith testified that the chemical luminol provides a presumptive test for blood; it can detect minute amounts — one drop of blood in fifteen gallons of water — and is not affected by the passage of time, even centuries. Luminol cannot differentiate between animal and human blood, it registers positive for either and registers “false positives” to other agents: bleach, copper, nickel, cobalt and some plant enzymes.

Mr. Smith performed luminol tests in the northeast bedroom of Palmer’s house and tested several suspicious spots on one wall at eye level. Some were positive. At the northwest corner of the room there was a positive reaction to an area of the wall and floor where blood appeared to have been wiped up. Mr. Smith had no follow-up information relative to the tests nor any evidence that the substance detected by the luminol came from Pam Smith.

Scott Sherrill testified that he examined and tested four samples of wallpaper from the Palmer residence taken in July, 1989. On two he was able to identify human blood but not the blood type; on one he was able to detect blood but could not determine whether it was animal or human; in the remaining sample he could not identify blood of either kind. Tests on scrapings from Alfred Palmer’s vehicle were negative. Mr. Sherrill later examined additional wallpaper samples from the Palmer residence and found no blood. These samples were submitted to the FBI and the report was negative.

Citing Brenck v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), the state agrees that it was error to admit the evidence of luminol testing without further corroboration. Brenck had not been decided at the time of Palmer’s trial, but Palmer’s motions in limine to exclude the luminol test results preserved the identical point decided in Brenck and unquestionably the rationale of Brenck would have governed the result. Here, there was conflicting testimony that Pam Smith had been seen in Palmer’s vehicle prior to her disappearance but no proof that she had ever been in Palmer’s house. The Brenck decision settles the issue that the mere presence of human blood by luminol testing without factors which relate that evidence to the crime is not admissible:

Since we have determined that luminol tests done without follow-up procedures are unreliable to prove the presence of human blood or that the substance causing the reaction was related to the alleged crime, we find it was error for the trial court to admit the evidence of luminol testing done by Mr. Smith where there was no follow-up testirig done to establish that the substance causing the luminol reaction was, in fact, human blood related to the alleged crime. See State v. Moody, 573 A.2d 716 (Conn. 1990); see also Lee v. State, 545 N.E.2d 1085 (Ind. 1989); cf. Commonwealth v. Yesilciman, 550 N.E.2d 378 (Mass. 1990):

Brenck v. State, supra, at 594.

Nor can we conclude the error is harmless. There is no contention by the state to that effect. When the state’s proof concerning luminol, including photographs of the bedroom, is weighed against the evidence generally, we cannot say that prejudice is lacking.

Reversed and remanded.


author: Steele Hays, Justice. Robert L. Brown, Justice,

text:
    STATE of Arkansas v. Robin Michel GALYEAN
    CR 93-1113
    870 S.W.2d 706
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      Scott E. Smith, for appellee.
   Steele Hays, Justice.

This is an appeal by the State of Arkansas under Ark. R. Crim. P. 36.10 asserting that the circuit court imposed an illegal sentence for the crime of delivery of marijuana. The state’s argument must be sustained.

The appellee, Robin Michel Galyean, was charged with a class C felony: delivery of less than ten pounds of marijuana on March 21, 1992. Ms. Galyean pled guilty and, over the state’s specific objection to the sentence, the trial court placed her on probation for seven years and ordered her to pay restitution in lieu of a fine.

The state contends that Ark. Code Ann. §§ 5-4-301(a)(l)(F) (Supp. 1991) and 5-4-104(e)(l)(F) (Supp. 1991) prohibit a circuit court from placing a defendant guilty of delivery of marijuana on probation. Act 608 of 1991 amended both § 5-4-301 and § 5-4-104 by adding the following category to a list of crimes which shall not admit probation:

[d]rug related offenses under the Uniform Controlled Substance Act, § 5-64-101 et seq. except to the extent that probation is otherwise permitted under subchapters 1-6 of Chapter 64.

The Uniform Controlled Substance Act does provide for probation for mere possession of marijuana, but not for delivery. Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1993); Ark. Code Ann. § 5-64-407 (1987).

We have consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime. State v. Townsend, 312 Ark. 427, 863 S.W.2d 288 (1993). At the time appellee’s crime occurred (March 21, 1992) Ark. Code Ann. § 5-64-401(a)(l)(iv) (Supp. 1991) provided that any person found guilty of delivery of less than ten pounds of a Schedule VI controlled substance shall be: Imprisoned no less than four (4) nor more than ten (10) years and/or fined no more than twenty-five thousand dollars ($25,000).(Emphasis supplied.) Although § 5-64-40l(a)(l)(iv) (Supp. 1991) allows for only a fine, this statute must be read in conjunction with § 5-4-30l(a)( 1)(F) (Supp. 1991) and § 5-4-104(e)(1)(F) (Supp. 1991). Both § 5-4-301(a)(1)(F) (Supp. 1991) and § 5-4-104(e)(l)(F) (Supp. 1991) clearly state that probation is not appropriate. Indeed, we have held that delivery of marijuana is simply not a crime where either probation or suspension is available to the circuit court for consideration as an appropriate sentence. Whitener, supra.

As we pointed out in State v. Williams, CR93-870, decided January 10, 1994, Act 192 of 1993 amends § 5-4-301(a)(1)(F) and § 5-4-104(e)(1)(F) to remove the language from the two statutes which prohibited trial courts from imposing suspended imposition of sentence or probation on controlled substance offenders. Act 192 of 1993 became effective on August 13, 1993, and it does not provide for retroactive application; therefore, its operation is prospective only. State v. Whale, 314 Ark. 576, 863 S.W.2d 290 (1993); Williams, supra.

For the reasons stated, the judgment is reversed and the case is remanded for resentencing.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. I dissent. See State v. Landis, 315 Ark. 681, 870 S.W.2d 705 (1994) (Brown, dissenting opinion).

       Marijuana is a Schedule VI controlled substance. Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979), cert. denied 446 U.S. 938 (1980).


author: David Newbern, Justice.

text:
    Hassell WILLIAMS, Administrator of the Estate of Lisa Carter v. SHELTER MUTUAL INSURANCE COMPANY
    93-709
    870 S.W.2d 387
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994

      Butler, Hicky & Long, by: Fletcher Long, Jr., for appellant.

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles and Gail O. Matthews, for appellee.
   David Newbern, Justice.

This is an insurance case. Lisa Carter was killed while a passenger in a car owned by her and insured by the appellee, Shelter Mutual Insurance Company (Shelter). Hassell Williams, the appellant, as administrator of Lisa Carter’s estate, sought to recover from Shelter under Ms. Carter’s uninsured motorist coverage on the ground that the driver of the car was an uninsured motorist. The Trial Court granted summary judgment in favor of Shelter. Mr. Williams appeals, contending the Trial Court erred in finding as a matter of law that the uninsured motorist coverage in the policy covers only accidents caused by drivers of uninsured automobiles. He contends the ruling was contrary to the General Assembly’s intent in enacting Ark. Code Ann. § 23-89-403 (1987) and against public policy. We find no error and affirm.

Mr. Williams alleged that Ms. Carter’s car was uninsured because Ms. Carter was excluded from the liability coverage under the policy as she owned the car and was the insured named in the policy.

We decided the issue presented in this case in another case decided quite recently. Pardon v. Southern Farm Bureau Casualty Ins. Co., 315 Ark. 537, 868 S.W.2d 468 (1994). In the Pardon case, David Pardon was killed while a passenger in his truck. Mr. Pardon had liability and uninsured motorist insurance coverage for the truck. The driver of the truck at the time Mr. Pardon was killed was uninsured. Under Mr. Pardon’s policy, Mr. Pardon was excluded from liability coverage because he was the owner of the truck. Mr. Pardon’s estate tried to recover under the uninsured motorist portion of Mr. Pardon’s policy because the driver of the truck at the time of the accident did not have insurance coverage. We affirmed a summary judgment in favor of the insurance carrier. We held that uninsured motorist coverage applies when the collision in question involves the operator of another vehicle which is uninsured. We stated that an insurance policy with this provision is not against public policy because the applicable statute states that uninsured motorist coverage only applies when an accident is caused by an uninsured automobile.

The summary judgment in favor of Shelter was correct.

Affirmed.


author: Tom Glaze, Justice. Robert L. Brown, Justice,

text:
    QUAPAW CENTRAL BUSINESS IMPROVEMENT DISTRICT v. BOND-KINMAN, INC.
    93-234
    870 S.W.2d 390
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994

      Mitchell, Williams, Selig, Gates & Woodyard, for appellant.

      Mike Wilson, for appellee.
   Tom Glaze, Justice.

Quapaw Central Business Improvement District was created by the Little Rock City Board of Directors for the purpose of providing funds to construct improvements to streets, sidewalks, utilities, curbs and gutters, street lighting, landscaping, and other improvements within the district. On December 1, 1988, Quapaw issued $700,000 in General Obligation Improvement Bonds, and to secure payment of the bonds, it levied a continuing annual assessment of 5% on the real property within its district. The assessments are to be collected by the Pulaski County Collector until the bonds are retired. Quapaw issued a pledge and mortgage wherein the Quapaw District pledged, mortgaged, assigned, and transferred to 1st National Bank of Texarkana, as Trustee for the registered owners of the bonds, the assessments collected and to be collected.

Bond-Kinman, Inc. was engaged as a general contractor to construct the improvements, and at the end of the work, Quapaw failed to make its final payment to Bond-Kinman. Bond-Kinman then sued Quapaw in Pulaski County Circuit Court for breach of contract. Following trial on the merits, Bond-Kinman was awarded a net judgment of $44,076.60. Neither party appealed. Subsequently, Bond-Kinman learned the Pulaski County Collector was holding $55,110 on behalf of Quapaw, and in an attempt to satisfy the $44,076.60 judgment, it filed a garnishment action against the Collector. The Collector answered, admitting it was indebted to Quapaw in the amount of $55,110, and Quapaw responded, stating the funds held by the Collector were pledged and mortgaged for the Quapaw District’s bondholders. Quapaw also moved Bond-Kinman’s writ of garnishment should be dismissed.

Following a hearing, the circuit court denied Quapaw’s motion to dismiss the garnishment, and granted Bond-Kinman judgment against the Collector from which Quapaw appeals. Bond-Kinman argued below, and now on appeal, that the pledge and mortgage made to the bondholders had not been properly perfected under Article 9 of the Uniform Commercial Code, thus, allowing the funds held by the Collector to be subject to BondKinman’s superior lien. Specifically, Bond-Kinman argues Qua-paw’s pledge and mortgage securing the assessments for the District’s bondholders were required to be filed in the Office of the Secretary of State, and Quapaw’s failure to do so, permitted Bond-Kinman’s garnishment of the funds which were intended for the bondholders. We must disagree.

First, we disagree that Article 9 of the Code applies. Section 4-9-104(e) (Repl. 1991) excepts, from the operations of the Article, a transfer by a government or governmental subdivision or agency. Thus, if the Quapaw District is a governmental subdivision or agency, Article 9 is inapplicable and Bond-Kinman’s argument must fail.

In determining the status of improvement districts, particularly in Arkansas, a historical review is helpful and is discussed by Horace Sloan in A Treatise on the Law of Improvement Districts in Arkansas (1928). The power of taxation, whether by general taxation or by local assessment, is legislative and cannot be exercised in absence of statutory authority. Additionally, no improvement district may be created or local assessment imposed unless statutorily authorized. The Arkansas Constitution of 1874 contains provisions limiting the maximum rate of general property taxation by counties and municipalities, and prohibiting counties and municipalities from issuing interest-bearing certificates of indebtedness. See generally Ark. Const, art. 16 as amended. Because these constitutional restrictions do not apply to improvement districts, the improvement district has been used in Arkansas as a means of constructing and financing large public improvements that counties and municipalities could not normally afford. Sloan at pp. 2 through 28.

As is clearly indicated from the foregoing, improvement districts are agents of the state and derive their limited powers and duties of a public nature by legislative delegation through the taxing power of the state, and “constitute a separate and distinct species of taxing districts as contradistinguished from counties, municipal corporations and school districts.” Id. at p. 19. Further, there is a wealth of case law acknowledging the agency status of improvement districts as governmental in nature. See Terry v. Starks, 221 Ark. 870, 256 S.W.2d 545 (1953) (during the time lands are the property of an improvement district, such lands are held by a governmental agency and for governmental purposes); Wood v. Henderson, 225 Ark. 180, 280 S.W.2d 226 (1955) (improvement district is not a taxing agency or a subordinate political agency of the state, but is merely a governmental agency); Reeme v. Natural Gas Improvement Dist. No. 2, 247 Ark. 983, 448 S.W.2d 647 (1970) (improvement district is a political subdivision and quasi-public corporation created by the state); Cherokee Village Homeowners Protective Assoc. v. Cherokee Village Road & Street Improvement Dist. No. 1, 248 Ark. 1055, 455 S.W.2d 93 (1970) (improvement district lawfully created assumes the status of a de jure governmental agency).

Because an improvement district is an agent of the state, the Quapaw District is excluded under § 4-9-104(e) as a governmental agency from the UCC and its filing requirements. Accordingly through the statutory lien created under §§ 14-184-120(b) and 14-184-127(b)(l), the bondholders’ interest is secured and made superior by Quapaw District’s prior pledge and mortgage of its assessments.

The special statutory provisions providing for the lien on and the pledge of the district’s assessments to secure payment of the bonds also disposes of Bond-Kinman’s argument that the funds belonging to the Quapaw District were not restricted in any manner while in the possession of the Collector, thus making the assessments subject to garnishment. Bond-Kinman attempts to distinguish Gossett v. Merchants & Planters Bank, 235 Ark. 665, 361 S.W.2d 537 (1962), relied on by Quapaw, wherein this court held that a restricted deposit is not subject to diversion by garnishment or other process, but must be used for the purpose made. See also Geyer & Adams Co. v. Bank of Central Ark., 170 Ark. 1016, 282 S.W. 358 (1926).

While Bond-Kinman may be correct in stating that. the Collector had not placed the District’s pledged funds into a restricted account, the Collector’s failure to do so is not determinative. Again, by statute, the levy of assessments is restricted to the payment of the bonds under §§ 14-184-120 and 14-184-127. And in accordance with those statutory pledge, security and lien provisions, the language of the bond, itself, restricts the assessment of benefits and taxes pledged to the payment of the bonds. Statutory authorization allowing for the levy and collection of assessed funds, and statutorily mandated language found on the bond control the disposition of any funds collected under the Act.

As a final point,-we take note of Bond-Kinman’s argument that the Quapaw District is not a real party in interest because the funds Bond-Kinman attempts to garnish are held by the Collector for the benefit of the bondholders. Thus, under Bond-Kinman’s argument, the Collector and the Trustee for the bondholders are the real parties in interest. Quapaw points out that Bond-Kinman did not argue this point below and Bond-Kin-man does not dispute this. Whether the issue was raised below or not, Bond-Kinman failed to obtain a ruling on the standing issue and matters left unresolved below are waived. Morgan v. Neuse, 314 Ark. 4, 857 S.W.2d 826 (1993). In addition, BondKinman prosecuted this action, and if the Collector and the Trustee for the bondholders should have been parties, BondKinman could have made them parties but chose not to do so.

For the reasons cited, we reverse and dismiss.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. The issue in this case is whether an unpaid contractor which constructed the improvements and is a judgment creditor has the right to garnish improvement district assessments collected and held by the county collector. Stated another way, who takes priority to such funds between this contractor with a garnishment lien and the bondholders who claim a prior lien? The opinion says the bondholders have a superior right to the funds but cites no authority to support its holding. I disagree, at least based on what has been presented to this court in this appeal.

The opinion is correct that Article 9 of the Uniform Commercial Code does not control this matter. The question is what does. The Improvement District argues that the Central Business Improvement District Act (Ark. Code Ann. § 14-184-101, et.seq. (1987) decides the issue, and the majority apparently agrees. But the sections of the Improvement District Act, which are adduced in the opinion, do not decide the priority question. See Ark. Code Ann. §§ 14-184-120, 14-184-127 (1987). Both sections provide that assessments from the properties benefited by the improvements shall be security for the bondholders and that a lien is created. Neither statute, however, decides the conflicting claims question before the court today.

The opinion also concludes that the bond documents restrict the assessed funds. Those documents, however, are not before the court because they were not abstracted by the Improvement District, and this court has made it clear that we will not scour the record for evidence to reverse the trial court. Montgomery v. Butler, 309 Ark. 491, 834 S.W.2d 148 (1992); Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984). Moreover, the opinion is merely conclusive in stating that the bond language is restric- ■ tive. No doubt the bond documents provide that special property assessments will be used to pay off the bonds. But it does not necessarily follow that the funds held by the county collector are impervious to a contractor’s lien. In short, the issue still remains of whether assessments held by the county collector can be garnished by the builder of the improvements that benefited the assessed properties.

The circuit court, in its judgment, did not rely on Article 9 of the Uniform Commercial Code. Rather, it focused on the inherent injustice created by prohibiting the Improvement District contractor, which built the improvements, from collecting on its judgment. Again, the majority opinion in this case does not resolve the issue of the conflicting liens but only refers to the statutes which state that the bondholders have a lien. In addition, this court does not know precisely what the assessments collected by the county collector are for. The contractor contends that the assessments in the collector’s hands may be for administrative expenses of the Improvement District or operation and maintenance expenses. Hence, we do not know how those assessments are restricted, if at all, under the bond documents; when the assessments were paid; or when the pledge and mortgage lien attaches to the assessments. We are making this decision in the dark.

No doubt the security of the bondholders must be protected. However, without a more cogent and persuasive legal or factual basis to reverse the circuit court, I would affirm its judgment.

       The commentary to this UCC provision explains that because governmental borrowings and assignments are usually governed by special provisions of law, governmental transfers are excluded from this Article. Later in this opinion, we discuss such special provisions here which are a part of the Central Business Improvement District Act, Ark. Code Ann. §§ 14-184-101-130 (1987).

       Section 14-l$4-127(b)(l) provides:
      The principal of, interest on, and paying agent’s fees in connection with the bonds shall be secured by a lien on and pledge of, and shall be payable from, the assessments levied against the real property within the district or the revenues derived from the operation of revenue-producing facilities of the district including, without limitation, lease rentals as provided for in this subchapter, constructed or acquired under the provisions of this subchapter.

       The bond language here does reserve to the District’s Board of Commissioners the right to pay the District’s reasonable and necessary expenses after payment of the bonds.

       The Collector was, of course, a party to the garnishment action. While the Collector responded to Bond-Kinman’s request for a writ of garnishment, it did not appeal the trial court’s decision granting the writ.


author: Tom Glaze, Justice. David Newbern, Justice,

text:
    STATE of Arkansas v. Deon Cortez SHEARD, et al.
    CR 93-699
    870 S.W.2d 212
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994
    [Rehearing denied March 14, 1994.]

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellant.

      James P. Massie, for appellees Robinson and Thompson.

      Lea Ellen Fowler O’Kelly, for appellee Sheard.

      Nancie M. Givens, for appellee Alexander.

      Phillip M. Henry, for appellee Turner.

      Thomas B. Devine, III, for appellee Hughes.

      Herbert T. Wright, Jr., for appellee Washington.

      Hugh Finklestein, for appellee Bryant.

      Newbern, J., would grant rehearing. Corbin, J., not participating.

   Tom Glaze, Justice.

The state brings this interlocutory appeal under the Rape-Shield Statute, Ark. Code Ann. § 16-42-101(c)(3)(b) (Supp. 1993), from the trial court’s pretrial order to allow the defendants-appellees to introduce evidence at trial of an alleged rape victim’s prior sexual conduct. Ark. Code Ann. § 16-42-101 (Supp. 1993); Ark. Sup. Ct. R. l-2(a)(12) and Ark. R. Crim. P. 36.10. Specifically, the state jointly charged ten defendants with the rape of T.W., a fifteen-year-old female, on October 14,1992. Some of the defendants subsequently filed motions asserting T.W.’s prior sexual conduct is relevant to the charges pending against them and requesting the trial court to hold an omnibus hearing to determine the admissibility of such prior conduct. The trial court held two hearings on the defendants’ motions. Afterwards, the trial court ordered that the defendants may offer at trial testimony and evidence concerning “the Woodland Ridge episode” involving sexual contact and activities of T.W. and defendants Deon Sheard, Tim Bryant, Larry Turner and Shawn Robinson that occurred months prior to the alleged rape incident on October 14th.

Sheard, Bryant and Robinson testified at one of the omnibus hearings and portrayed T.W. as one who had an ongoing consensual sexual relationship with Sheard, who was her boyfriend. Sheard said that he lived with his brother, Bryant, who had seen Sheard and T.W. having sex, but that Bryant never came in the room to watch. Sheard also related that Robinson, Larry Turner and Cedrick Reaves were present in the home when Sheard had sex with T.W., but again these young men were never in the room. Sheard also related that, on one occasion at Woodland Ridge sometime in the summer of 1992, T.W. had consensual sex with Turner on the same day she had had sex with Sheard, but that Turner and T.W. were in a private room. Sheard conceded that he had never seen T.W. have sex with any of the other defendants in the case. On another occasion at T.W.’s house,. Sheard paid T.W.’s cousin a few dollars to watch out for T.W.’s mother so Sheard and T.W. would not get caught having sex. Finally, Sheard testified that he had never inserted foreign objects in T. W.’s vagina in these prior sexual encounters, and he had never undressed her.

Shawn Robinson testified that he, Turner and Reaves looked under a door to the room where Sheard and T.W. were having sex, and that they “busted” in the room. He also testified that he had peeked under the door on one occasion when Sheard was with T.W. and Sheard asked Robinson to close the door. On each of the two occasions when Robinson saw Sheard and T.W. together, Robinson said they were in a room with the door closed. Robinson also stated that by looking under a door, he had seen T.W. having consensual sex with Turner.

Bryant also testified, stating that he had seen Sheard and T.W. having sex on two occasions by looking under the door to the room where Sheard and T.W. were together. Bryant said that, while he admitted having sex with T.W. on the date of the alleged rape incident, he had never before had sex with T.W.

From the foregoing, the trial court remarked that the issue in this case bears on whether T.W. consented to the sexual acts occurring on October 14, 1992. It then ruled that the evidence of what occurred during the prior summer at Woodland Ridge was relevant and also that sexual contact and activities between T.W. and Sheard, regardless of time or place, were relevant and could be offered by the defendants. In sum, under the trial court’s ruling, all of the testimony given by Sheard, Bryant and Robinson would be admissible at the defendants’ trial.

In Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979), the court summarized Arkansas’s Rape-Shield Statute by saying the statute provides that evidence of a victim’s prior sexual conduct is inadmissible at trial except where the court, at an in camera hearing, makes a written determination that it is relevant to a fact in issue and that its probative value outweighs its inflammatory or prejudicial nature. See specifically Ark. Code Ann. § 16-42-101(c) (Supp. 1993). The purpose of such hearing is to review the evidence to determine whether it is relevant for trial purposes. Id. This court will reverse a trial court’s ruling on whether or not such evidence is relevant if that decision is clearly erroneous. Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1992); Houston v. State, 266 Ark. 257, 582 S.W.2d 958 (1979).

This court has held that prior acts of sexual conduct are not within themselves evidence of consent in a subsequent sexual act. Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979). There must be some additional evidence connecting such prior acts to the alleged consent in the present case before the prior acts become relevant. Id. This court has also repeatedly said that Arkansas’s Rape-Shield Statute is intended to protect victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt. Gaines, 313 Ark. 561, 855 S.W.2d 956.

Here, we simply fail to see how T.W.’s prior sexual conduct, as related by the three defendants in the omnibus hearing, bears on or relates to whether she consented to a group-sex situation involving young men who held her legs and had their way with her. Whether T.W. had a prior and regular consensual sexual relationship with Sheard in no way indicates she would agree to group sex. Nothing in the testimony given by Sheard, Bryant and Robinson revealed that T.W. was ever willing to have sex with another person while others joined in. Except for one instance, the prior sexual activities of T.W. involved her relationship with Sheard in a room with the door closed. Although other young men (now defendants) peered under and through the door, on one or two occasions, such a situation is not even similar to the group-sex incident on October 14, 1992, with which these defendants were charged. While the trial court in its ruling specifically alluded to the “Woodland Ridge episode” where T.W. purportedly had sex with Sheard and later Turner on the same day, Sheard’s own testimony reflects that T.W. and Turner were in the privacy of a room and that one should not make the situation “sound like somebody is sick or something Nobody’s no pervert.”

The trial court (and dissenting opinion) relied on the case of Bobo v. State, 267 Ark. 1, 289 S.W.2d 5 (1979), as support for admitting into evidence prior sexual conduct between a defendant and an alleged rape victim when consent is an issue. That case (and Brown v. State, 264 Ark. 944, 581 S.W.2d 549 (1979), cited therein) differs substantially from the one before us now — there, group sex involving multiple parties was not involved. In sum, we conclude that whether a victim may have consented to prior normal, individual sexual relations with a defendant is simply not relevant to the situation alleged here, where the defendants assert T.W. consented to being restrained and subjected to sexual intercourse and conduct by multiple parties. Cf. People v. Williams, 416 Mich. 25, 330 N.W.2d 823 (1982); Interest of Nichols, 2 Kan. App. 2d 431, 580 P.2d 1370 (1978). Thus, we reverse and remand the trial court’s ruling to the contrary.

Newbern, J., dissents.

David Newbern, Justice,

dissenting. The State of Arkansas appeals a pre-trial ruling from the Trial Court. The ruling followed a hearing pursuant to Ark. Code Ann. § 16-42-101 (Supp. 1993), the “rape shield” statute, and would allow Deon Sheard and the other defendants to present evidence concerning the prosecuting witness’s prior sexual activity at each of their rape trials.

The defendants moved for a hearing, pursuant to § 16-42-101, to determine the admissibility of testimony concerning the alleged victim’s prior sexual activity. The defendants contend the alleged victim’s prior conduct is relevant to each of their defenses and should be admissible. .

According to the representation of a deputy prosecutor made at the hearing, the State plans to prove that Deon Sheard told other members of a gang, the “43rd Storm,” that the alleged victim wanted to be a member. A female who wishes to become a member must engage in sexual intercourse with the male members. The proof, according to the deputy prosecutor, will show that the alleged victim objected to intercourse and the gang members, including those charged with Mr. Sheard, forced themselves upon her.

Two defendants, Mr. Sheard and Tim Bryant (Mr. Sheard’s brother), and a witness, Shawn Robinson, testified. Mr. Sheard testified at length about his relationship with the alleged victim. This relationship, initiated by the alleged victim, started in the summer of 1991, and included substantial sexual activity. It occurred often when she would come to his house in the morning before school. She frequently called and invited him to her house as well. Mr. Sheard testified that he never initiated sexual relations with the alleged victim.

Mr. Sheard also testified about two incidents referred to as the “Huntington” incident and the “Woodland Ridge” incident. The Huntington incident took place at the alleged victim’s apartment. Mr. Sheard and Shawn Robinson arrived at the apartment, and Mr. Sheard and the victim engaged in intercourse while Mr. Robinson was in another room.

The Woodland Ridge incident occurred in the summer of 1992. Shawn Robinson, and defendants Larry Turner, Tim Bryant, Deon Sheard and “a few other people,” drove to the alleged victim’s apartment. Mr. Sheard and the alleged victim engaged in intercourse, and shortly afterwards Larry Turner engaged in intercourse with her. According to Mr. Sheard, the alleged victim consented to each act.

Shawn Robinson testified that he watched Mr. Sheard and the alleged victim in the act of intercourse twice. Both times were in her apartment, the second time was the Huntington incident. The first time, Mr. Robinson testified he watched by looking under the bedroom door. He agreed that neither Mr. Sheard nor the alleged victim was aware of his presence.

Mr. Robinson testified that during the Huntington incident he and Larry Turner and Tim Bryant “busted in” the bedroom while Mr. Sheard and the victim were engaged in sexual intercourse. He stated the alleged victim saw them in the room and, when asked what the alleged victim did when she saw them, “She didn’t do nothing.” Mr. Robinson again “busted in” the bedroom when Mr. Turner and the alleged victim appeared to be engaged in sexual intercourse. He testified the alleged victim did not appear to be struggling. He was asked, “Did she say anything?” and his response was “No.” He was asked, “But she didn’t say, no, Larry, or anything like that?” and he answered, “No, ma’am.”

Tim Bryant’s testimony was substantially the same and corroborated the testimony of Mr. Robinson and Mr. Sheard.

The Trial Court ruled that it would allow, at each of the defendants’ trials, testimony concerning the Woodland Ridge incident, and testimony concerning the victim’s prior relationship with Deon Sheard, but not the Huntington incident.

It is from this order that the State appeals.

1. The statute

The Trial Court based its ruling on § 16-42-101 (Supp. 1993). The statute provides, in pertinent part, that any “opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person is not admissible ... to attack the credibility of the victim, to prove consent... or for any other purpose.” § 16-42-101(b).

The statute further provides that a defendant may request a pre-trial hearing to determine the admissibility of such evidence, and “evidence directly pertaining . . . [to] the victim’s prior sexual conduct with the defendant or any other person may be admitted .. . if the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature ....”§ 16-42-101(c).

The statute is designed to prevent the defendant’s trial from becoming an unnecessarily humiliating exhibition of an alleged victim’s private life. Its purpose is to encourage rape victims to prosecute their attackers by “shielding” them from humiliation. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980); Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978). This purpose is achieved by requiring a pre-trial hearing, which allows the Trial Court to weigh the proffered testimony of a defendant before it is presented to a jury. In making its determination, the Trial Court is given wide latitude, and will not be reversed absent an abuse of discretion. Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989); Lackey v. State, 288 Ark. 225, 703 S.W.2d 858 (1986); Kemp v. State, 270 Ark. 835, 606 S.W.2d 573 (1980).

2. Abuse of discretion

In Bobo v. State, 267 Ark. 1, 289 S.W.2d 5 (1979), there were allegations of rape against Mr. Bobo and Mr. Forrest. The Trial Court held a hearing to consider whether prior sexual relations between the two defendants and the alleged victim could be admitted as well as evidence of sexual relations between the alleged victim and other persons including a Mr. Duckworth. The Trial Court ruled that the evidence of the relations between the alleged victim and the defendants would be admissible on the issue of consent. He also ruled that evidence that Mr. Duckworth had engaged in sexual intercourse with the alleged victim just prior to the alleged act of rape by the defendants was admissible. The two defendants appealed, contending that the Trial Court should also have ruled admissible prior incidents involving the alleged victim and Mr. Duckworth as well as others and a nude photograph of the alleged victim which had appeared in a magazine.

We affirmed the Trial Court’s ruling in the Bobo case. In an obiter dictum we remarked that the Trial Court had properly ruled that the alleged victim could be examined about her prior sexual relations with the two defendants, citing Brown v. State, 264 Ark. 944, 581 S.W.2d 549 (1979). In the Brown case we reversed a trial court’s refusal to permit testimony about prior sexual relations between the alleged victim and the accused on the issue of consent.

In the case now before us, the Trial Court reviewed the evidence and, comparing the ruling we approved in the Bobo case, came to the conclusion that evidence of Mr. Sheard’s prior sexual relationship with the alleged victim, which the State apparently agreed would not be objectionable evidence, should be admitted as well as evidence of the Woodland Ridge incident. He excluded evidence of the Huntington incident.

The Trial Court remarked on the difficulty of the decision, given the obvious potential of the evidence to embarrass and humiliate the alleged victim juxtaposed to the seriousness of the offenses charged against the defendants and the relevancy of the alleged victim’s prior sexual conduct to the charges.

It seems clear to me that the evidence that this alleged vietim had engaged in sexual intercourse with Mr. Sheard and others of the defendants in circumstances which could be described as less than discrete and private is relevant to the question whether she consented to the acts charged against these defendants. The Trial Court decided that the prejudicial nature of the evidence, which he so clearly recognized, was outweighed by its probative value. There is no clear right or wrong in such a decision, yet the majority opinion holds the Trial Court’s decision was “clearly erroneous.” That is the standard of review to which we adverted most recently in Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1992), where we said, “The trial court is vested with a great deal of discretion in ruling whether prior sexual conduct of a prosecuting witness is relevant, and we do not overturn its decision unless it was clearly erroneous.”

The acts the State has alleged are indeed abhorrent to every member of this Court, but it must be remembered that at this point they are only allegations. The premise of the majority opinion is that evidence of the alleged victim’s prior indiscretions could not be relevant in a trial where the State will attempt to show that brutal force was used. Again, it must be remembered we are dealing with allegations only, and some of the defendants are alleging that the sexual intercourse which occurred on the day of the alleged rape was consensual.

The purpose of the rape shield law is salutary, but the General Assembly recognized that a balance must be achieved between protecting an alleged victim of rape from unnecessary exposition of humiliating evidence and depriving a jury of information which is relevant to whether the alleged victim consented to the sexual conduct alleged. The balance must be struck by the judge who hears the evidence and sees the witnesses at the hearing designed for that purpose. Whether the standard of review is that we will not reverse unless the decision is clearly erroneous or constitutes an abuse of discretion, the threshold is high. I do not see how this Court can come to the conclusion that the decision is an abuse of discretion, and it is even harder for me to understand how the Trial Court’s decision can be characterized as clearly erroneous.

I respectfully dissent.

       The state subsequently dismissed charges against two of these defendants.


author: Tom Glaze, Justice.

text:
    J. W. “Dub” STIPES v. STATE of Arkansas
    CR 93-100
    870 S.W.2d 388
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994

      Phyllis B. Worley, for appellant.

      Winston Bryant, Att’y Gen., by: Sherry L. Daves, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant appeals from his convictions of robbery, aggravated assault and theft. He was sentenced as a habitual offender to a total of thirty-three years for the robbery and aggravated assault crimes and received a ten-year concurrent sentence for the theft conviction.

Appellant’s first point for reversal challenges the sufficiency of the evidence and questions whether the victim’s identification of appellant was sufficient, alone, to support his convictions. In considering appellant’s argument, we emphasize that, when the sufficiency of the evidence is challenged, we consider only that evidence which supports the guilty verdict. McClure v. State, 314 Ark. 35, 858 S.W.2d 103 (1993).

At trial, the victim, Scott Adams, testified that between 3:00 and 4:00 in the afternoon on October 31st, he drove his mother’s car to an area immediately outside the city limits of Bald Knob where he parked the car, loaded his Hawkins muzzle loader and prepared for target practice. Adams stated that fifteen to thirty minutes later, a rust-colored early 70’s model Datsun or Toyota pickup approached the area and one of the two men in the truck asked Adams to fire the rifle so that the men could hear it. Obligingly, Adams fired his rifle at a target that he had set up, and he then repacked the muzzle of the weapon with another bullet and some gun powder. Before Adams put primer in the gun’s firing pan, the driver of the truck, who was later identified as the appellant, got out and asked if he could shoot the weapon. According to Adams, he refused the request because he smelled alcohol on appellant’s breath. Appellant grabbed the gun, and slapped Adams in the face. When Adams continued to hold on to the weapon, appellant slapped him again and “got him in a headlock” until Adams released the gun. Adams stated that appellant then stepped back a few steps, leveled the rifle at him and said, “I’m going to kill this m__f_.” Appellant then pulled the trigger several times and the gun failed to discharge. Appellant tried unsuccessfully to convince Adams to tell him why the gun would not fire. Afterwards, appellant tossed the gun to his companion and then proceeded to chase Adams around a field, asking Adams to fight. Appellant then got into Adams’ car, started it and drove it around the field applying the brakes and spinning the wheels. Finally, appellant chased Adams with the car. Appellant and his companion subsequently drove away in the car, taking Adams’ rifle with them.

Adams stated that he then walked a mile to the nearest house and called his parents, who picked him up about fifteen minutes later. Adams’ parents took him to the Bald Knob police station where he gave the police a description of appellant’s truck, the appellant and his companion. The police located Adams’ car the day after the incident at the same place where the appellant had accosted Adams. A few days later, Adams met with the police, and picked appellant’s photo from a lineup. Adams also made a positive identification of the appellant at trial as the man who slapped and threatened him and took his rifle and his mother’s car.

Although appellant questions in various respects the reliability of Adams’ identification of appellant and emphasizes no physical evidence was offered linking appellant as the perpetrator of the crimes, this court has held that, when a witness makes a positive identification of a suspect, any challenge to the reliability of the identification becomes a matter of credibility for the factfinder to determine. Luckey v. State, 302 Ark. 116, 787 S.W.2d 244 (1990). The factfinder’s decision will not be disturbed on appeal when there is substantial evidence to support it. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992). This court has consistently held that unequivocal testimony identifying the appellant as the culprit is sufficient to sustain a conviction. Id. Here, Adams’ pretrial and in-court identifications of the appellant were unequivocal and clearly constituted sufficient evidence for the jury to conclude without having to speculate that appellant was the perpetrator.

Appellant’s second argument is that the trial court should have directed a verdict in his favor on the aggravated assault charge because Adams’ gun was incapable of discharging when appellant pulled the trigger. The state points out that the appellant failed to submit the argument below, but instead, argued whether the pointing of the gun was sufficient to constitute aggravated assault. A directed verdict motion must be a specific motion to apprise the trial court of the particular point raised. Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993); Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992). Appellant simply failed to give the trial court an opportunity to rule on the legal issue and sufficiency of the evidence of the point now offered on appeal. Thus, appellant’s argument is not preserved for our review.

For the above reasons, we affirm.


author: Donald L. Corbin, Justice.

text:
    SOUTH COUNTY, INC. v. FIRST WESTERN LOAN CO. and John Taylor Hampton
    93-553
    871 S.W.2d 325
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994

      Stephen M. Sharum and Mark E. Ford, for appellant.

      Karr & Hutchinson, by: Michael Stubblefield and Friday, Eldredge & Clark, by: William A. Waddell, for appellees.
   Donald L. Corbin, Justice.

This is the second time this case has been appealed to this court. Previously, we dismissed the appeal for lack of an appealable order. South County, Inc. v. First Western Loan Co., 311 Ark. 501, 845 S.W.2d 3 (1993). The facts are reported in that decision and are repeated here for convenience:

Appellant, South County Inc., was formed in July 1985, to develop the South County Project. The South County Project was to be a mixed-use development in Greenwood, Arkansas. Appellant alleges that the appellees, First Western Loan Company and John Hampton, an officer of First Western, represented in January 1986, that they would provide the financing for the development. Appellant argues that relying on this representation, it expended a lot of time and money to further the development of the project. In July of 1986, the appellees advised the appellant that they would not fund the development of the project. Appellant was unable to obtain other financing, and the project failed. The appellees contend that they never issued a loan commitment and contend that First Western’s role was to help assemble the loan package and take the package to potential investors.
In July of 1988, appellant filed suit against the appellees alleging a tort action for negligent misrepresentation and constructive fraud. Appellant also alleged a cause of action for breach of contract against First Western. Appellant sought recovery for its damages as well as punitive damages. Uerling & Associates, a creditor of the appellant, filed a motion to intervene and a complaint in intervention on November 4, 1988. In this motion, Uerling contended that the appellant was indebted to it for engineering and surveying services condúcted on the project in the amount of $46,210.69. On November 8, 1988, Uerling’s motion was granted without objection.
The appellees subsequently filed a motion for summary judgment. The trial court granted a partial summary judgment on October 9, 1991, on the tort causes of action and claim for punitive damages against appellees First Western and John Hampton. This completely eliminated appellee John Hampton from the lawsuit but left alive the appellant’s contract cause of action against First Western. In the order granting partial summary judgment, the trial judge stated that under ARCP Rule 54(b) there was no just reason for delay of the appeal of this decision. However, no mention was made of Uerling’s complaint in intervention. Appellant took a voluntary dismissal without prejudice of the breach of contract action against First Western, which was filed on October 31, 1991. Again, there was no dismissal of Uerling’s complaint in intervention.

We dismissed the first appeal because the trial court had not considered the intervenor’s claim when granting the partial summary judgment. Subsequent to our dismissal, the trial court entered an order dismissing with prejudice the intervenor’s complaint and reaffirming the previous summary judgment on the issues of negligent misrepresentation, constructive fraud and punitive damages. The parties had stipulated that the breach of contract claim which was non-suited by appellants on October 31, 1991, was now statute barred. Thus, the trial court’s order dismissed with prejudice the breach of contract claim. The order is now final and appealable. Appellant makes three assignments of error in the proceedings below. We find no error and affirm.

As its first point of error, appellant contends the trial court should not have granted summary judgment on the claim for negligent misrepresentation. Appellant correctly points out that Arkansas has never expressly recognized a cause of action for negligent misrepresentation. However, appellant argues that imposition of liability for negligent misrepresentation in a commercial setting currently represents the mainstream of American law, and asks this court to expressly recognize such a cause of action citing The Restatement (Second) of Torts § 552 (1976) and cases from other states that have adopted section 552.

We decline to recognize the tort of negligent misrepresentation. Misrepresentation, also commonly referred to as deceit or fraud, has been an intentional tort in Arkansas for well over a century. See e.g. Hanger v. Evins, 38 Ark. 334 (1881). In Gregory v. Consolidated Utilities, Inc. 186 Ark. 406, 53 S.W.2d 854 (1932), this court observed that:

“Fraud involves the idea of intentional deception, and exists where there is misrepresentation made with intent to deceive, or with actual knowledge of its falsity. ... Proof of a mere naked falsehood or representation is not enough even though the complaining party relied on it and sustained damages, but, in addition thereto, the false statement must have been knowingly or intentionally made.”

Id. at 411, 53 S.W.2d at 856. The foregoing observations hold true today. We see no need to recognize a new cause of action for negligent misrepresentation.

We conclude the trial court did not err in granting summary judgment on the claim for negligent misrepresentation. No such cause of action exists in this state. Where no cause of action is alleged upon which relief can be granted, we need not consider whether issues of material fact existed. Brandt v. St. Vincent Infirmary, 287 Ark. 431, 701 S.W.2d 103 (1985).

Next, appellant contends the trial court should not have granted summary judgment on the claim for constructive fraud. Appellant contends that appellees had a duty to appellant arising out of a confidential relationship or a situational fiduciary relationship that existed between them. Appellant further argues this duty was breached by failing to give sound financial advice and by failing to provide or place development financing.

The burden in a summary judgment proceeding is on the moving party and all proof submitted must be viewed in the light most favorable to the respondent. Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). Once the movant makes a prima facie showing of entitlement to judgment as a matter of law, the respondent must show a genuine issue as to a material fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 824 S.W.2d 387 (1992). On appeal, we need only consider whether the granting of summary judgment was appropriate based on whether the evidentiary items presented left a material question of fact unanswered. Id.

While this court has described “constructive fraud” as being “based upon a breach of a legal or equitable duty which the law declares to be fraudulent because of its tendency to deceive others, regardless of the moral guilt, purpose or intent of the fraudfeasor,” Miskimins v. City Nat’l Bank, 248 Ark. 1194, 1204, 456 S.W.2d 673, 679 (1970), the breach of a fiduciary duty is not the only element, nor is it always an essential element, required to prove a case of constructive fraud. To the contrary, the test for constructive fraud, also called “legal fraud” or “fraud in law” has been defined as the making of misrepresentations by one who, not knowing whether they are true or not, asserts them to be true without knowledge of their falsity and without moral guilt or evil intent. Cardiac Thoracic & Vascular Surgery P.A. Profit Sharing Trust v. Bond, 310 Ark. 798, 840 S.W.2d 188 (1992); Titan Oil & Gas Inc. v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974); Lane v. Rachel, 239 Ark. 400, 389 S.W.2d 621 (1965); Evatt v. Hudson, 97 Ark. 265, 133 S.W. 1023 (1911).

Thus, while this court has found constructive fraud to exist in cases of rescission of contracts or deeds and breaches of fiduciary duties, the fact remains that, as with the tort of fraud, the tort of constructive fraud requires that material misrepresentations of fact be made. In the present case, appellant has failed to prove that appellees made any material false statements or misrepresentations of fact. Appellant did offer numerous affidavits in response to the motion for summary judgment emphasizing the meetings between the parties and appellees’ desire to participate in and profit from the South County Project. However, appellant did not offer any proof of a false statement or commitment from appellees. The deposition of Roger Beshears, one of the founders of appellant, was attached to the response to the motion for summary judgment and illustrates appellant’s failure of proof. Roger Beshears stated that appellees did not say, “We commit to provide financing,” but instead indicated appellees stated they could get appellant some financing. Such a statement amounts only to “puffing” of appellees’ ability to provide financing, not a commitment to do so. nor a representation that it would do so. Assuming arguendo that the statements were commitments to provide financing, they would only be promises of future conduct in a contractual setting and not misrepresentation that give rise to fraudulent conduct. In P.A.M. Transport, Inc. v. Arkansas Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993), we said:

In the context of negotiating a contract, a misrepresentation sufficient to form the basis of a deceit action may be made by one prospective party to another and must relate to a past event, or a present circumstance, but not a future event. “An assertion limited to a future event may be a promise that imposes liability for breach of contract or a mere prediction that does not, but it is not a misrepresentation as to that event.”

Id. at 240, 868 S.W.2d at 38 (citations omitted).

Appellant did not meet its burden of establishing that appellees made any misrepresentations that would give rise to a cause of action for constructive fraud. Therefore appellant did not rebut appellees’ prima facie establishment of entitlement to summary judgment with proof of issues of material fact. We cannot say the trial court erred in granting appellees judgment as a matter of law on the constructive fraud claim.

Lastly, appellant contends the trial court erred in granting summary judgment on its claim for punitive damages. Punitive damages may be awarded when a tortfeasor has acted with malice, intent to cause injury, or with conscious indifference such that malice could be inferred. Wallace v. Dustin, 284 Ark. 318, 681 S.W.2d 375 (1984). Our affirmance of the summary judgment on the two claims asserted renders this point moot. If appellees have not committed any tort and are not liable to appellant in any way, appellant has no claim for punitive damages.

The order granting summary judgment is affirmed.


author: Robert L. Brown, Justice.

text:
    EVANS INDUSTRIAL COATINGS, INC. v. The CHANCERY COURT OF UNION COUNTY, Arkansas, Third Division
    93-811
    870 S.W.2d 701
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994

      Peel & Dunham, P.A., by: James Dunham, for appellant.

      Henry C. Kinslow, for appellee.
   Robert L. Brown, Justice.

Evans Industrial Coatings, Inc. petitions for a writ of prohibition due to lack of venue in the Union County Chancery Court. We hold that venue of this matter does not lie in’Union County, and we grant the writ.

Because resolution of this matter turns in large part on the allegations in the complaint, we describe the complaint in some detail. Joe Dean brought the complaint against Evans, a contractor, and Ensco, a waste disposal business, in Union County. Dean resides in Ashley County. Evans is a corporation with its principal place of business in Pope County. The complaint alleges that Evans performed construction work for Ensco in Union County. Dean, according to an agreement with Evans, assisted Evans in that work as a consultant and “in part to maximize profits.” Dean was to be paid a weekly salary under the agreement from a separate bank account maintained by Evans which would be funded by payments from Ensco for the work performed. Evans was to keep separate records on the account and make them available to Dean on three-days notice. Evans was also to pay Dean on a quarterly basis 50 percent of the net after-tax profits generated by the job.

Dean asserts in the complaint that Evans breached this agreement by refusing to provide an accounting or to make distributions of 50 percent of net after-tax profits. He further alleges that if a temporary restraining order is not issued the remaining funds to be paid Evans by Ensco will be dissipated, and he will be left without a remedy.

At the heart of Evans’s prohibition petition is Dean’s allegation of fraud in his complaint which we quote in full:

7. Additionally, or in the alternative, Plaintiff has an action for fraud against Defendant Evans for breach of fiduciary duty. Under paragraph 4 of Exhibit “A”, it is apparent that Evans is a fiduciary of 50% of the net after tax profits generated by the El Dorado Branch during the three months of operation in question. By willfully refusing to pay said monies within 10 days after January 19, 1993, and further refusing to provide an accounting, it has become apparent that Evans has, and will continue to breach the fiduciary duty owed to Plaintiff, and as a result Plaintiff will suffer damage by not obtaining the funds he is owed. Said acts of Defendant Evans are willful, intentional and done with conscious disregard of Plaintiff’s contractual rights to the funds.

Dean then concludes that he is entitled to judgment for breach of contract in the amount of all funds remaining unpaid by Ensco. He prays for (1) an accounting for the amount owed him under the contract, (2) judgment for breach of contract, and (3) a temporary restraining order and injunction against Ensco, ordering it to pay the disputed funds into the registry of the court.

Ensco subsequently interpled the funds at issue and was dismissed from the lawsuit.

Evans moved to dismiss Dean’s complaint for lack of venue on grounds that its principal place of business is in Pope County and it was not served with the complaint in Union County. The chancellor found that Evans had no current office in Union County, but he denied the motion on the basis that a cause of action for constructive fraud had been stated:

However, paragraph seven (7) of Plaintiff’s complaint alleges that by virtue of the contractual relationship between the parties a fiduciary relationship resulted which was breached by Defendant Evans’s failure to account and pay monies to Plaintiff. Drawing inference from this pleading in favor of Plaintiff, and (sic) allegation of “Constructive Fraud,” is made.

Following the chancellor’s decision, Dean amended his complaint to add the following allegation:

3. Dean alleges he is due funds from both Defendants due to separate Defendant Evans misrepresentation, in that Evans misrepresented to Dean that he would be paid 50% of the net profits and Dean, in reliance on said misrepresentation, suffered damages.

He added additional prayers for judgment for breach of fiduciary duty, for unjust enrichment, and for fraudulent misrepresentation.

The parties agree that the issue before this court is whether fraud, either actual fraud or constructive fraud, has been sufficiently pled to vest'venue of this matter in Union County. We first consider Dean’s amended complaint and his allegation of misrepresentation. Our Rules of Civil Procedure provide that “the circumstances constituting fraud ... be stated with particularity.” Ark. R. Civ: P. 9; see also Prairie Implement Co. v. Circuit Court of Prairie County, 311 Ark. 200, 844 S.W.2d 299 (1992). In Prairie Implement Co., we further said, “The facts and circumstances constituting the fraud shall be set forth. There should be some concealment, misrepresentation ... by which another is misled, to his detriment; and these, or some of them, must be alleged and proved.” 311 Ark. at 205, 844 S.W.2d at 302, quoting Beam Bros. Contractors v. Monsanto Co., 259 Ark. 253, 263, 532 S.W.2d 175, 180 (1976) and McIlroy v. Buckner, 35 Ark. 555, 558, 559 (1880).

This court has further endorsed five elements of actual fraud: (1) a false representation, usually of a material fact; (2) knowledge or belief by the defendant that a representation is false; (3) intent to induce reliance on the part of the plaintiff; (4) justifiable reliance by the plaintiff; and (5) resulting damage to the plaintiff. Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (Nov. 8, 1993); Interstate Freeway Service, Inc. v. Houser, 310 Ark. 302, 835 S.W.2d 872 (1992); Wilson v. Allen, 305 Ark. 582, 810 S.W.2d 42 (1991). Dean’s amended complaint simply fails to state facts supporting any basis for an intentional misrepresentation by Evans. All that is alleged is that he has not been provided an accounting or paid funds which violates the terms of his agreement. That is an allegation of a broken promise. It is clearly conclusory and insufficient as an allegation of actual fraud under our rules or caselaw.

Dean, in the alternative, urges that he has alleged sufficient grounds for constructive fraud and that constructive fraud will suffice to sustain venue in the county where that fraud occurred. See Ark. Code Ann. § 16-60-113(b) (1987). Ordinarily, he is correct. The operable statute provides that “[a]ny action for any type of fraud” may be brought in the county where one or more of the fraudulent acts occurred. Id. The remaining question then is whether constructive fraud has been pled in appropriate fashion to establish venue.

We do not believe that it has been. Constructive fraud is a type of fraud based on a breach of a legal or equitable duty which the law declares to be fraudulent because of its tendency to deceive others, regardless of the moral guilt, purpose, or intent of the perpetrator. Wiseman v. Batchelor, supra; Miskimins v. The City Nat’l Bank, 248 Ark. 1194, 456 S.W.2d 673 (1970). Representations are considered to be fraudulent when made by one who either knows them to be false or, not knowing, asserts them to be true. Miskimins v. The City Nat’l Bank, supra; Lane v. Rachel, 239 Ark. 400, 389 S.W.2d 621 (1965). It must also be pled with particularity. Lovell v. Marianna Fed. S & L Ass’n, 264 Ark. 99, 568 S.W.2d 38 (1978).

Dean argues that Evans’s promise to account and pay a percentage of profits, as contained in the agreement, created a fiduciary duty which was later breached. We begin by noting that a fiduciary relationship is not vital to a finding of constructive fraud. Nevertheless, it may form the basis for the practice of a constructive fraud. Wiseman v. Batchelor, supra; Chavis v. Martin, 211 Ark. 80, 199 S.W.2d 598 (1947). However, we find no basis in the complaint for a fiduciary relationship between Evans and Dean. It is simply alleged that they were parties to an agreement who had promised to perform certain acts. No particular relationship of trust or confidence developed because of the agreement. Certainly, the promise by Evans to account and pay, by itself, does not transform a relationship into one that is fiduciary in nature.

Nor do we find any allegation of an unintentional misrepresentation by Evans which could form the basis for constructive fraud. Dean merely alleges that Evans did not account or pay him as promised in the agreement. That payment is the essence of Evans’s obligation under the contract and is a far cry from an assertion that Evans misrepresented material facts, albeit inadvertently, which induced Dean to enter into the agreement. On this point we further note that Dean does not pray for damages due to fraud or for rescission of the contract due to misrepresentation. He prays for damages for breach of fiduciary duty. A cause of action for breach of fiduciary duty is not the same as a cause of action for constructive fraud, though the two may emanate from the same fact situation.

Were we to hold that an independent cause of action for constructive fraud exists in this case so as to warrant venue in Union County, we would be hard pressed not to recognize constructive fraud in every action in contract where a promise to account and pay has been violated. Constructive fraud is a distinct cause of action from breach of contract and, as already stated, a distinct cause of action from breach of fiduciary duty. A cause of action for fraudulent acts in Union County has not been sufficiently pled.

Writ granted.


author: Per Curiam.

text:
    Judy Ellen LUNA-HOLBIRD v. STATE of Arkansas
    CR 93-1239
    871 S.W.2d 328
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994

      Appellant, pro se.
    No response.
   Per Curiam.

In 1993 appellant Judy Luna-Holbird filed in the trial court a petition for post-conviction relief pursuant to Criminal Procedure Rule 37 which the trial court denied. After the record was lodged in this court on appeal, appellant sought to supplement the record, to join her son in the appeal, and to file handwritten pleadings. We denied the motions and dismissed the appeal because it was clear that appellant could not prevail on appeal because she had not sought this court’s permission to file a petition pursuant to Rule 37 as required by the rule as it existed when she was convicted. Holbird v. State, CR 93-1239 (December 13, 1993). Appellant now seeks reconsideration of that decision.

As grounds for reconsideration, appellant cites the fact that the opinion was a Per Curiam opinion not signed by the members of this court and not designated for publication and thus possibly a “falsified document.” The ground is frivolous. An unanimous opinion of this court may be rendered as a Per Curiam opinion and not designated for publication at the discretion of the court. Only those opinions of this court which are signed must be designated for publication. Sup. Ct. R. 5-2 (a).

Appellant further argues that the trial court was obligated to hold an evidentiary hearing before denying relief. Rule 37.3 (a) provides that an evidentiary hearing is not required where the trial court can conclude from the files and records of the case that the petitioner is entitled to no relief. As appellant had not received this court’s permission to proceed under the rule in the trial court, the trial court did not err when it concluded that an evidentiary hearing was not required.

Motion denied.


text:
    Ron PARRISH & Rose Parrish v. STATE of Arkansas
    CR 93-458
    870 S.W.2d 394
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994

      Jon A. Williams, for appellant.
    No response.
   Per Curiam.

Appellants, Ron Parrish and Rose Parrish, by their attorney, have filed for a rule on the clerk.

Their attorney, Jon A. Williams admits that the failure to file the record in time was 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.


text:
    RE: IN THE MATTER OF Cornelius CLEARY, A Juvenile
    CR 94-67
    870 S.W.2d 394
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994

      John L. Kearney, for appellant.
    No response.
   Per Curiam.

Petitioner, Cornelius Cleary, by his attorney, John L. Kearney, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

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

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


text:
    Terry OTTENS v. STATE, of Arkansas
    CR 93-765
    871 S.W.2d 329
    Supreme Court of Arkansas
    Opinion delivered February 14, 1994

      Q. Byrum Hurst, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Terry Ottens was convicted in municipal court of Driving While Intoxicated. He filed a timely notice of appeal to the circuit court but failed to file the record within thirty days of the judgment appealed from. The state moved to dismiss the appeal for failure to comply with Inferior Court Rule 9(a) and the appeal was dismissed by order of the circuit court.

Ottens now appeals to this court, invoking our jurisdiction pursuant to Rule 1-2(3) of the Rules of the Supreme Court and Court of Appeals, presenting an issue involving an interpretation of a rule of the inferior courts. Finding no merit in his argument, we affirm the order of dismissal.

Appellant was charged with Driving While Intoxicated in violation of Ark. Code Ann. § 27-23-113 (1987) in the Ashdown Municipal Court. He was convicted on December 9, 1992. He filed a Notice of Appeal with the Circuit Court of Little River County on January 7, 1993. The record of the Municipal Court proceeding was certified by the Ashdown Municipal Court Clerk on February 12, 1993. However, the record was not filed with the circuit court until February 16, 1993. On May 26, 1993, the State of Arkansas (appellee) filed a motion to dismiss for failure to file a record of the municipal court proceeding within thirty (30) days from the entry of judgment in compliance with Rule 9 of the Arkansas Inferior Court Rules.

Appellant filed a response to the motion to dismiss on June 7, 1993, requesting that the motion be denied for the following reasons: (1) the record was timely filed pursuant to Rule 6 and the states computation of the thirty (30) days is incorrect; (2) the' oversight of the clerical staff or a miscomputation should not deprive a defendant of his day in court; and (3) the appellant has a constitutional right to appeal his previous conviction. On June 8, 1993, the circuit court filed an order dismissing the appeal. The appeal was certified to this court on October 1, 1993.

The timely filing of an appeal from a Municipal Court is governed by Inferior Ct. R. 9 which provides in relevant part:

(a) Time for Taking Appeal. All appeals in civil cases from inferior courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within thirty (30) days from the date of the entry of the judgment.
(b) How Taken. An appeal from an inferior court to the circuit court shall be taken by filing a record of the proceedings had in the inferior court. It shall be the duty of the clerk to prepare and certify such record when requested by the appellant and the appellant shall have the responsibility of filing such record in the office of the circuit clerk.

We have stated that Rule 9 is applicable in both criminal and civil proceedings. Allred v. State, 310 Ark. 476, 837 S.W.2d 469 (1992).

Appellant maintains that the appeal was timely since the notice of appeal was filed within thirty (30) days of the judgment. He argues that under Rule 9 the record had to be filed by February 7, 1993. We disagree. In order to appeal, the appellant was required to file the municipal court record in circuit court within thirty days as provided in Rule 9. Since his conviction occurred on December 9, 1992, he had until January 7, 1993, to file the record.

Filing a notice of appeal within thirty (30) days of the conviction does not suffice to perfect an appeal. In fact, a notice of appeal is not required in an appeal from municipal court to circuit court. McBride v. State, 297 Ark. 410, 762 S,W.2d 785 (1989). Rule 9 expressly provides that the appealing party file the record of the inferior court proceeding within thirty (30) days in order to bring an appeal. See Lowe v. State, 300 Ark. 106, 776 S.W.2d 822 (1989).

Appellant argues that Ark. Code Ann. § 16-96-505 (1987) places the burden of filing the record on the municipal court official. He contends this is appropriate because many appeals from municipal court are filed by pro se litigants. We note that the appellant makes this argument for the first time on appeal, as it was not a part of his response to the motion to dismiss' below. We do not address issues raised for the first time on appeal. Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993). However, we take this opportunity to reaffirm our holding in Bocksnick v. City of London, 308 Ark. 599, 825 S.W.2d 267 (1992), in which we stated that the provision relied upon by the appellant, Ark. Code Ann. § 16-96-505 (1987), has been superseded by Rule 9(a) of the Inferior Court Rules. We also note the holding in Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989), where we concluded that the duty to perfect an appeal rests upon the counsel of the appealing party. In keeping with Edwards and Bocksnick, Ark. Code Ann. § 16-96-505, has been codified as .superseded. Ark. Code Ann. § 16-96-505 (Supp. 1993).

We except to the argument that pro se litigants should not have the burden of following Inferior Court Rules. To the contrary, we have stated that pro se litigants must conform to the rules of procedure, including the timely perfecting of an appeal. Bragg v. State, 297 Ark. 348, 760 S.W.2d 878 (1988); Peterson v. State, 289 Ark. 354, 289, 711 S.W.2d 830 (1986). Recently, in Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990), we again rejected an argument that the circuit clerk had the duty of perfecting an appeal to this court by filing the record. In Sullivan, the litigant was a self-described “incarcerated indigent layman.” In this case appellant is not acting pro se. Our Model Rules of Professional Conduct require that counsel, like pro se litigants, conform to procedural rules.

Next, appellant contends the circuit court erred by entering an order dismissing the appeal without conducting a hearing. However, our rules do not require a hearing on a motion to dismiss and the motion in this case was clearly warranted on the face of the record.

Finally, appellant offers a theory of laches for reversal. He asks us to excuse his failure to comply with Rule 9 because the State did not file the motion to dismiss until after the filing period had expired. He explains that because of the delay, he had begun preparation for trial.The argument overlooks the fact that when the time for filing an appeal is fixed by a rule or statute, the provision which limits the time is jurisdictional in nature. See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989); Searcy County v. Holder, 257 Ark. 435, 516 S.W.2d 901 (1974). Because jurisdiction is the power or authority of a court to hear a case on its merits, it may be raised at any time. Head v. Caddo Hills School District, 277 Ark. 482, 644 S.W.2d 246 (1982). Jurisdiction may even be raised for the first time on appeal. Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992). Consequently, the argument that preparation for trial had begun prior to the filing of the motion to dismiss on jurisdictional grounds is without merit.

Affirmed.