text:
    Carmen Lewis PETTY, as Successor Administratrix and Sole Heir-at-Law of Major William LEWIS, Deceased v. Tommy LEWIS and Ronald BURTON
    84-225
    684 S.W.2d 250
    Supreme Court of Arkansas
    Opinion delivered February 18, 1985

      Wood Law Firm, for appellant.

      Brazil, Clawson ir Adlong, by: William Clay Brazil, for appellee Lewis; and Wright, Lindsey & Jennings, for appellee Burton.
   Darrell Hickman, Justice.

This appeal concerns the estate of Major William Lewis. His daughter and sole heir, Carmen Lewis Petty, sued Tommy Lewis, the original administrator, and Ron Burton, the attorney for the estate. The suit was essentially for damages for breach of fiduciary duties and sought an accounting. After a thorough hearing, a special master found no impropriety but did find that Tommy Lewis owed the estate an amount to be offset by his administrator’s fee and by a debt owed to him by Major Lewis. The master’s nine page report was adopted by the Faulkner County Probate Court, and it is from those findings that Carmen Petty appeals. We affirm.

Major Lewis, a cattleman who owned and operated a livestock auction barn in Conway, Arkansas, died in October, 1977. He had no lineal heirs other than the appellant, Mrs. Petty, who is his illegitimate daughter. The probate court declared her to be Major Lewis’ heir, and we affirmed in Lewis v. Petty, 272 Ark. 250, 613 S.W.2d 585 (1981).

Two days prior to Major Lewis’ death, he held a sale at his barn. After the sale he wrote thousands of dollars in checks to the sellers of cattle. The checks were to be paid from a custodial account required by the Packers and Stockyards division of the United States Department of Agriculture. It developed that the account did not have sufficient funds with which to pay the checks. Tommy Lewis, Major Lewis’ nephew, who was the administrator of the estate, and George Hartje, Major Lewis’ attorney, made arrangements with the bank to hold the checks until sufficient funds could be amassed to pay the outstanding checks. All of Lewis’ cattle and other assets were gathered, and the checks were paid. This is the basis for one of Mrs. Petty’s chief contentions. The record reveals that gathering the assets was a monumental task.

Every witness who had access to Major Lewis’ books testified that his records were inaccurate and incomplete. His former bookkeeper had to be hired by the estate to interpret those books and determine which of the accounts receivable were valid. No records were kept of Major Lewis’ cattle and they had to be found. Even the attorney who represented Mrs. Petty at the time testified that Tommy Lewis had done a commendable job in marshalling Major Lewis’ assets and in being totally cooperative with Mrs. Petty during his administration.

During the appeal of Lewis v. Petty, supra, in October, 1980, Mrs. Petty fired her attorney and hired her present counsel. At that point an inventory and an accounting had been filed. Another accounting had been made and circulated among the parties but, inadvertently, was not filed until the trial of this case. After Mrs. Petty was determined to be Major Lewis’ sole heir, Tommy Lewis was relieved as administrator and Mrs. Petty was appointed. That was on June 2, 1981. No objection was made to any action by Tommy Lewis or Ron Burton until September 27, 1982, when this action was filed.

The suit sought a final accounting by Tommy Lewis and made 16 specific allegations of wrongdoing which included contentions as to the inventory being filed late and the second inventory not being filed at all. Additionally, the suit alleged breach of fiduciary duties by Tommy Lewis and Ron Burton. The special master heard extensive testimony from the parties and numerous other witnesses. With respect to the inventory, he concluded that the estate was in such disarray that it would not have been possible to file an inventory in 60 days. He also found that although the second accounting should have been filed, Mrs. Petty’s attorney had knowledge of it, no objection to it was filed, all the records were turned over to Mrs. Petty, and there was no evidence of any damage to the estate. As to the prayer that Tommy Lewis be ordered to file a final accounting, the master found that Tommy Lewis turned over all records for the estate at the time Mrs. Petty was appointed administratrix, and that no demand was made for a final account. He found, therefore, that Mrs. Petty waived her right to demand a final accounting and that it would be useless to order one at that late date.

The special master, after reviewing all the evidence, also found that there was no negligence in the handling of the custodial account, as had been alleged by Mrs. Petty. He observed that it appeared that Mrs. Petty believed she might receive a windfall by the estate being found wrong in honoring the checks written by Major Lewis. In summary, the special master found no evidence of bad faith or fraud on the part of either of the appellees.

On appeal Mrs. Petty makes several arguments that ignore that, in reality, there has been as complete an in-court accounting as possible. The parties that were responsible for the administration of the estate were under oath and, except for the expenditures made by Tommy Lewis found to be unnecessary, there was no evidence upon which Mrs. Petty could be found to be entitled to damages. The fact that an accounting was not duly filed and that other formalities were not strictly observed does not entitle Mrs. Petty to recover. Mrs. Petty was not able to show what could have been revealed by forcing Tommy Lewis to submit a final accounting. The master concluded that all information was given to Mrs. Petty, and to simply order Tommy Lewis to file a form would be pointless.

To support her arguments that information was withheld from her, Mrs. Petty claimed that Lewis had an interest in a trucking partnership that was unaccounted for. An offer was made to Mrs. Petty to sell that interest in the partnership which was rejected by her. This matter is in litigation in a separate case and any interest owned by Major Lewis will certainly be awarded to his estate. Mention was also made of real estate that should have been accounted for. The witnesses answered every question asked in this regard and Mrs. Petty was unable to show any wrongdoing.

Several arguments are made on appeal as to the handling of the custodial fund. Again, the special master investigated the actions of the administrator and George Hartje thoroughly and concluded that only Major Lewis’ just obligations had been paid. There is nothing in the record which would lead us to a different finding.

Mrs. Petty has been unable to demonstrate any wrongdoing on the part of the appellees. The evidence totally supports the finding that Tommy Lewis was honest and forthright with Mrs. Petty in every way. Indeed, it was his testimony that made it possible for her to establish heirship in her former lawsuit. He testified there that she was Major Lewis’ daughter and had always been treated as such.

We agree with the trial court’s finding that Mrs. Petty is entitled to no relief other than the specific findings made in her favor in the master’s report.

Affirmed.

       Ron Burton, one of the appellees, was George Hartje’s associate and assumed Hartje’s responsibilities for handling the estate when Hartje was appointed to the bench in January, 1979.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Roger Dale SHERRON v. STATE of Arkansas
    CR 84-138
    684 S.W.2d 247
    Supreme Court of Arkansas
    Opinion delivered February 18, 1985
    [Rehearing denied March 25, 1985.]

      Wayne Emmons, for appellant.

      Steve Clark, Att’y Gen., by; Patricia G. Cherry, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Roger Dale Sherron was convicted of first degree murder in the death of his estranged wife. The Crittenden County Circuit Court sentenced him to life imprisonment. On appeal the only issue is whether the trial court erred in refusing to instruct the jury on the lesser offense of negligent homicide. The trial court did instruct the jury on the lesser offenses of second degree murder and manslaughter.

In an unbroken line of decisions, it has been held there is no error in failing to give an instruction on one lesser offense if other lesser offenses were covered by the instructions given, and the jury returns a verdict for the greater offense. Cooper v. Campbell, 597 F.2d 628 (8th Cir. 1979); Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984); Robertson v. State, 256 Ark. 366, 507 S.W.2d 513 (1974); Chaney v. State, 256 Ark. 198, 506 S.W.2d 134 (1974); Newsome v. State, 214 Ark. 48, 214 S.W.2d 778 (1948). Since that is the only question before us, we find no error.

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the point argued or in the other objections abstracted for review.

Affirmed.


text:
    Terry WELLS and Larry HOWARD v. STATE of Arkansas
    CR 84-157
    684 S.W.2d 248
    Supreme Court of Arkansas
    Opinion delivered February 18, 1985

      Thomas A. Martin, for appellants.

      Steve Clark, Att’y Gen. by: Joyce Rayburn Green, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Two questions are presented with regard to thé Act that we have not yet answered. The first issue is whether Ark. Stat. Ann. § 75-1031.1 (c) (Supp. 1983) requires the state to produce in court the Arkansas State Health Department official who certifies the breathalyzer machine. The answer is no. The statute provides:

The chemical analysis referred to in this section shall be made by a method approved by the State Board of Health. The method approved may be proved by a certificate duly acknowledged by a representative of the State Board of Health and said certificate shall be admissible per se in any criminal prosecution and shall not be subject to any objections on grounds of heresay [hearsay]. Provided, however, the machine performing the chemical analysis shall have been duly certified at least once in the last three [3] months preceding arrest and the operator thereof shall have been properly trained and certified. Provided further, the person calibrating the machine and the operator of the machine shall be made available by the State for cross-examination by the defendant or his counsel of record upon reasonable notice to the prosecuting attorney.

The state offered the testimony of the police officer who calibrated the machine in both cases. The defense insisted that the statutes required the state health official to be present who certified the machine. We find no such requirement. In fact the statute allows certification to be proven with the certificate itself. That was not done in this case, but the appellants did not object below to the absence of the certificates; instead, they only argued that the official must be present. On appeal the argument is somewhat altered to object to the lack of the certificate. We do not reach arguments on appeal not made below. Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981).

The other question is whether a defendant has the right to counsel at the time the breathalyzer test is taken. The appellants argue that the test is a “critical stage” of the prosecution requiring presence of counsel.

The right to counsel guaranteed by the Sixth Amendment to the United States Constitution applies to all critical stages of a criminal proceeding. United States v. Wade, 388 U.S. 218 (1967). Wade held that pretrial procedures must be scrutinized to determine the potential for prejudice to the defendant and whether counsel’s presence could help avoid that prejudice. The Supreme Court held that while a post-indictment lineup is a critical stage, requiring that an accused be given the right to counsel, certain scientific tests are not such stages. The Court stated:

The Government characterizes the lineup as a mere preparatory step in the gathering of the prosecution’s evidence, not different — for Sixth Amendment purposes — from various other preparatory steps such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary process of cross-examination of the Government’s expert witnesses and the presentation of his own experts. The denial of a right to have his counsel at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence at such stages might derogate from his right to a fair trial.

In Holmberg v. 54-A Judicial Dist. Judge, 60 Mich. App. 757, 231 N.W.2d 543 (1975), the appellant argued that the denial of his request for counsel before being given a breathalyzer test violated his constitutional rights. The Court of Appeals of Michigan found, as we do, that there was no constitutional right to counsel before a breathalyzer test is given.

Affirmed.


text:
    Willie Lee GIRTMAN v. STATE of Arkansas
    CR 84-170
    684 S.W.2d 806
    Supreme Court of Arkansas
    Opinion delivered February 18, 1985

      James W. Haddock, for appellant.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Late in the afternoon of January 28, 1984, in Crossett, Arkansas, the appellant, Willie Lee Girtman shot Ulysses Jasper four times with a .38 revolver and killed him. Girtman was charged with first degree murder and convicted by a jury. He was sentenced to 60 years imprisonment after the j ury found he had two prior convictions.

On appeal Girtman argues his conviction must be set aside for insufficiency of the evidence, the wrongful admission of evidence touching on the character of the deceased, and because it was not shown he had legal counsel when he was previously convicted. We find no merit to any of these arguments.

Essentially Girtman’s argument is the jury could not have returned a finding of guilty of first degree murder because it chose to disbelieve his version of the killing. Girtman’s defense was justification or self-defense as defined in Ark. Stat. Ann. §41-507 (Repl. 1977).

Girtman’s version of the incident was that he and the victim had had problems before, and on the day of the incident they had a fight at the home of Willie Carter where several people had gathered to play cards. Several witnesses testified that the victim, Jasper, was drunk and, without provocation, started a fight with Girtman. After the fight was well started the bystanders stopped it. Girtman said that Jasper told him the next time they met one of them would “leave here.” Girtman took the statement as a death threat. He said he went home and discovered he had left his watch at Carter’s and started to return. He took his mother’s pistol and en route saw Jasper waiting for him in an alley. According to Girtman, he tried to avoid Jasper by going another way but Jasper ran in front of him and blocked his way. Girtman said Jasper “went for” his pocket and he shot him.

Several witnesses testified and corroborated Girtman’s version of what happened at Carter’s home. There were no eyewitnesses to the killing.

On appeal we must view the evidence in a light most favorable to the state and if there is substantial evidence to support the jury’s verdict we must affirm their finding. Johnson v. State, 270 Ark. 992, 606 S.W.2d 752 (1980).

There was sufficient evidence for the jury to find Girtman deliberately and premeditatedly killed Jasper. Their previous altercation was over and the parties had withdrawn. Jasper was very intoxicated. His blood alcohol content was .26%. Girtman by his own sworn statement admitted he never saw a weapon. In the pocket of Jasper’s trousers was found an unopened pocket knife. That is the only evidence Jasper had any sort of weapon. Girtman shot him four times. According to the evidence from the medical examiner, two shots were undoubtedly to Jasper’s face, but two were to his back, when the decedent was apparently in a crouching or falling position. Girtman hid the gun and ran home. As he was running one of the neighbors called out to him, but he kept going, not answering. The jury had the right to resolve the facts after hearing the evidence and to decide whether or not to believe Girtman’s account. We do not disturb their findings if they are supported by any substantial evidence. McLemore v. State, 274 Ark. 527, 626 S.W.2d 364 (1982). .

Deadly physical force is justified as self-defense only if the use of such force cannot be avoided as by retreating. We have held that a condition precedent to a plea of self-defense is an assault upon the defendant “of such a character that it is with murderous intent, or places the defendant in fear of his life, or great bodily harm. A mere assault is not sufficient to justify the plea of self-defense.” Blaylock v. State, 236 Ark. 924, 370 S.W.2d 615 (1963).

Nor have we found a plea of self-defense j us tified where the evidence showed the defendant armed himself and went to a bar in anticipation that the decedent would be there and would attack him; or that the defendant provoked an attack upon himself by the decedent with the intention of killing the decedent. Burton v. State, 254 Ark. 673, 495 S. W.2d 841 (1973). The jury in this case would have been justified in finding that Girtman took the gun and left his home with the intention of killing Jasper.

Even if Jasper were the original aggressor, once he withdrew from the encounter and the danger to Girtman was no longer “immediate, urgent and pressing,” Girtman was not justified in pursuing him to continue the fight. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979).

The appellant also argues that evidence was wrongfully admitted concerning the character of the deceased. The defense was allowed to place before the jury the deceased’s reputation for violence, not only generally but by specific acts. During the examination by the state of one of their witnesses, the witness said:

And the conversation he is at my daughter’s house, he was talking and, ah, he was talking to me about going to church and, ah, he said all he know of me that I had gone to church all my life. He was gonna go to church with me and I told him why don’t you come on and go today and he said I’m is going. And then he went on to tell me that he had somthing to happen to him in the army and wondered would he get forgived for that. I told him under conditions that you was obeying orders that I believed the Lord would forgive you.

It is argued this remark was so prejudicial as to deny the appellant a fair trial. Specifically it is argued this was evidence of specific acts of good conduct which are inadmissible under Unif. R. Evid. 405 (b) since it was not an essential element of appiellant’s claim of self-defense. See, West v. State, 265 Ark. 52, 576 S.W.2d 718 (1979).

Actually the defense was not careful in its presentation of character evidence of the deceased. According to Unif. R. Evid. 405 that evidence should have consisted of reputation in the community, not specific acts. Jones v. State, 1 Ark. App. 318, 615 S.W.2d 388 (1981). Four witnesses, including Girtman, testified about the deceased’s reputation or propensity for violence, especially when he had been drinking. Most mentioned specific instances. The statement complained of is hardly the sort that could deny Girtman a fair trial. “One who opens up a line of questioning or is responsible for error should not be heard to complain of that for which he was responsible.” Berry v. State, 278 Ark. 578, 647 S. W.2d 453 (1983). So we find this harmless error at best.

Girtman’s last argument can be answered by merely reciting what the records showed about counsel for the two prior convictions.

The first conviction was for burglary, grand larceny and possession of stolen property on March 18, 1975, case number 75-99 and it reads:

Mr. Switzer previously appointed to represent Dft. Court again explains his rights to trial by Jury & Counsel. Pleads guilty. Sentenced to five (5) years in State Penentary [sic]. Same to run concurrently with sentence in case No. CR 76-29 Mr. Switzer granted fee of $50.00 for his services.

The second conviction is for theft of property on March 18, 1976, case number 76-29 and it reads:

Dft. arraigned in presence of court appointed counsel. Declines trial & Counsel, Sentenced to (5) years in State Penrtentary [sic] same to run Concurrently with sentence in CR NO. 75-99.

The state proved Girtman had counsel or waived it regarding these convictions.

Affirmed.


author: John I. Purtle, Justice. Steele Hays, Justice,

text:
    Robert T. KIMREY, et al v. Ira Willard BOOTH, et al. Ira Willard BOOTH v. NATIONAL BANK OF COMMERCE
    84-216, 84-257 & 84-258
    685 S.W.2d 139
    Supreme Court of Arkansas
    Opinion delivered February 18, 1985
    [Rehearing denied March 25, 1985.]

      Guthrie, Burbank, Dodson ér McDonald, for appellant Thomas Joe Booth.

      Shackleford, Shacklefordér Phillips, P.A., for appellant Albert Hanna.

      Vickery ér Jones, P.A., for appellants Robert T. Kimrey and St. Paul Fire and Marine Ins. Co.

      Compton, Prewett, Thomas ér Hickey, P.A., by: William I. Prewett; and Barber, McCaskill, Amsler, Jones ér Hale, by: Glen W. Jones, Jr., for appellants.

      Harrison ér Brown, P.A., by: Robert L. Brown, for appellee Ira Willard Booth.

      Bobby E. Shepherd, for appellees Clara Maud Renfro Hodges, Louis Renfro, Clinton Renfro, Cal W. Renfro, Billy Renfro Prothro, and Peggy Renfro Kimrey.
   John I. Purtle, Justice.

This appeal results from the trial court’s dismissal of appellant’s complaint to terminate a family trust on grounds that it was operating contrary to public policy of the State of Arkansas inasmuch as the primary beneficiary of the trust had killed his parents. The complaint also alleged fraud in the management of the estates of the decedents before such assets were merged into the trust.

Appellants argue several reasons for reversal but the arguments essentially allege that the trial court erred in applying the doctrine of res judicata and in failing to conduct a hearing.

Calvin Leslie Booth and his wife, Betty Renfro Booth, were killed on December 17, 1978. The son of the decedents, Thomas Joe Booth, was charged with voluntary manslaughter in connection with his parents’ death. Estates were opened for Calvin and Betty Booth. At the time Calvin and Betty Booth died, Calvin’s father, Roland Booth, was past 80 years of age and was in a nursing home. A guardian was appointed to act on his behalf in making a claim for the estates of Calvin and Betty Booth. The son and the grandfather eventually came to an agreement whereby the decedents’ estates were merged into a family trust. The “Booth trust” was established on February 11, 1981. The assets of Roland Booth were included in the family trust. At the time the trust was created Roland Booth’s estate had a value of $30,000, Betty Booth’s estate had a value of $40,500, and Calvin Booth’s estate was valued at $242,700. The terms of the trust provided that Roland Booth would receive $850 per month for the rest of his life. Roland Booth died on September 2, 1981, survived by several siblings or their children.

While Calvin and Betty’s estates were pending the court found that Tom was the sole heir. During his lifetime Roland Booth petitioned the Probate Court to redetermine heirship in Calvin’s estate on the basis that Tom should not profit from his parents’ deaths. No hearing was held on this petition. Sometime after the redetermination petition had been filed a compromise agreement was reached whereby the estates were merged and the trust created. The complaint to terminate the Booth trust was filed on October 4, 1983. On May 23, 1984, the Chancellor and Probate Judge dismissed all pending cases attacking the trust on the grounds of res judicata. The cases are consolidated on appeal.

The primary attack on this estate is on the grounds that a person should not be entitled to benefit from the death of any person when the beneficiary caused the death. We reaffirm our holding that public policy prevents an heir from sharing in the victim’s estate when the death is purposely caused by that heir. Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970). In the present proceeding there was an allegation that Tom Booth had been convicted of voluntary manslaughter; however, no such proof was presented when the estates of his parents were opened. The appellants argue that they did not enter into the-estate proceedings because they did not receive notice. Tom and Roland Booth were the only possible heirs of Betty and Calvin Booth. Therefore, notice was not required to be given to appellants. Ark. Stat. Ann. § 62-2111 (Repl. 1971). The reason notice was not required is that these appellants had no direct interest in the estates of either Calvin or Betty Booth. In ARCP Rule 17(a), it is said that every action shall be prosecuted by the real party in interest. With respect to the question whether Tom could inherit from his parents, Roland was the real party in interest, and it was Roland who raised the issue and entered into the settlement. These appellants had no standing to do so then, and the fortuity of Roland’s death gives them no standing now.

While the trial court’s ruling was on the basis of res judicata rather than the appellant’s lack of standing, it is clear that the correct result was reached, and on that basis we can affirm. Greeson v. Cannon, 141 Ark. 540, 217 S.W. 786 (1920). See also, Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979), and the cases cited in that opinion.

Affirmed.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. Appellant sought a hearing before the probate j udge on allegations that under a settlement between Thomas Joe Booth and Roland Booth, Thomas Joe Booth was acquiring the estates of his natural mother and adoptive father, when in fact he had caused their deaths by stabbing. Certified copies of criminal convictions in Texas accompanied appellants’ petition. The public policy of this state against such occurrences is so pronounced [see Sargent, Estate of v. Benton State Bank, Adm’r, 279 Ark. 402, 652 S.W.2d 10 (1983); Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970); Belt v. Baser, 238 Ark. 644, 383 S.W.2d 657 (1964); Smith v. Dan, 226 Ark. 438, 290 S.W.2d 439 (1956)] and appellants’ allegations so flagrant, that I believe the trial court should have given appellants a hearing to determine the facts and whether fraud and collusion warranted vacating the settlement and reopening the estates.

To say that only Thomas Joe Booth and Roland Booth were entitled to notice of the appointment of administrators for the estates of Betty Booth and Calvin Booth puts form above substance and ignores the obvious — that Thomas Joe Booth is alleged to be the killer of both decedents. The notice requirements of our Probate Code were not drafted with this extraordinary situation in mind, and make no alternative provision for notice when an heir may be disqualified by his own homicide. Otherwise, some provision would doubtless have been made to prevent such developments. The recourse is for the trial court to reopen the proceedings on the petition of interested parties and I would reverse and remand for that purpose.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    Don VENHAUS, County Judge, et al v STATE of Arkansas, ex rel., Floyd J. LOFTON
    84-205
    684 S.W.2d 252
    Supreme Court of Arkansas
    Opinion delivered February 18, 1985

      Henry Duckett, by: James M. Duckett, for appellant.

      Frederick K. Campbell; and Steve Clark, Att’y Gen., by: Jeffrey A. Bell, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The underlying issue in this case is whether the legislature, the quorum court, or the circuit judge has the authority to set the salary for circuit court probation officers. Act 591 of 1981 (not codified because it is categorized as local legislation) provides that the salaries of the probation officers of Pulaski County shall not be less than $15,000 nor more than $20,000 and that the. salaries of deputy probation officers shall not be less than $13,000 nor more than $18,000, with the exact amount to be set by the circuit judge. The act specifies that the salaries shall be paid by Pulaski County. Appellee Circuit Judge Floyd Lofton, of the first division of the sixth circuit, set the amounts of the salaries for the first division of the sixth circuit at $20,000 and $18,000. The Quorum Court of Pulaski County appropriated only $17,800 and $16,457 for the two employees. The Circuit Judge informed the County Judge by letter that the salaries of $20,000 and $18,000 were necessary and essential expenses for the administration of justice. The County Judge refused to approve disbursement of county funds in excess of the appropriation by the Quorum Court. The Circuit Judge then sought a writ of mandamus to compel the County Judge, Treasurer and Quorum Court to pay the higher salaries. The circuit court, by a judge on assignment, issued the writ of mandamus. We reverse. Jurisdiction to interpret the Constitution of Arkansas, to determine the constitutionality of state law and to hear the appeal of a mandamus action directed to county officials is in the Court. Rule 29 (l)(a), (c), and (f).

The county officials argue that the writ of mandamus should be dissolved because Amendment 55 to the Constitution of Arkansas implies that the quorum court should set the salaries of circuit court employees. The argument is without merit. Traditionally quorum courts have been held to have jurisdiction only over local matters, and a circuit court and its employees are not a local matter. Campbell, County Judge v. Arkansas State Hospital, 228 Ark. 205, 306 S.W.2d 313 (1957). Amendment 55 does not cause us to modify this body of law. The Amendment provides that the quorum court may exercise only “local legislative authority.” Section 1 (a). In addition, our earlier cases have set out additional reasons the quorum court is without discretion to set the expenses of state courts.

In Burrow, County Judge v. Batchelor, 193 Ark. 229, 98 S.W.2d 946 (1936), the county court refused to pay the salaries for the court reporter and grand jury stenographer in the amounts set by the legislature, and we authorized the circuit court to impound county funds to pay the salaries. In the material part of the opinion, we wrote:

These claims are a part of the necessary expenses of the operation of the county government and take precedence over all permissive expenditures. They are provided by statute so that courts and other such agencies may function. They are imposed by law and must be paid as long as there is money within the general fund to pay them. If this were not so, county government must stop. It is not discretionary with the county court to allow them. The county court must allow them, and, if it fails to do so, the circuit court may compel him to perform this ministerial act. This court ruled in the case of Polk County v. Mena Star Co., 175 Ark. 76, 298 S.W. 1002, in speaking of all necessary expenses imposed by law, that the county court has no control or discretion over them except, perhaps, the amount to be allowed for the services. In the instant case, the amount to be allowed is fixed by law. If the law were otherwise, county courts might obstruct the necessary and orderly administration of the affairs of the county. In view of the supervisory power of the circuit court over inferior tribunals, it did not exceed its authority in impounding the fund in the hands of the treasurer until the proceeding in mandamus might be adjudicated.

In Crawford County v. City of Van Buren, 201 Ark. 798, 146 S.W.2d 914 (1941), it was claimed that a legislative enactment requiring the quorum court to appropriate money for municipal court purposes was unconstitutional. In upholding the statute, we wrote:

We do not think, however, that these sections of the Constitution operate to deprive the general assembly of the power to impose duties upon counties and to require counties to pay therefor. Our cases are to the contrary. For instance, in the case of Polk County v. Mena Star Co., 175 Ark. 76, 298 S.W. 1002, there is an enumeration of various items of expenses imposed upon counties by legislative enactment. In the case of Burrow, County Judge v. Batchelor, 193 Ark. 229, 98 S.W.2d 946, there was involved an act of the general assembly requiring all counties to pay salaries of circuit court and grand jury stenographers. This act was upheld, . . .

In Campbell v. Arkansas State Hospital, 228 Ark. 205, 306 S.W.2d 313 (1957), we held that a county was required to pay expenses for mental tests of defendants, when ordered to so do by a circuit court and we stated:

“Act 77, § 6, Ark. Acts of 1879, Pope’s Digest § 2527, now codified as Ark. Stat. (1947) § 17-409, has been considered and discussed in many cases. In Polk County v. Mena Star Co., supra, it was pointed out that ‘***this court, many years ago, determined and held that there were two classes of obligations dealt with in this section of the statutes (Ark. Stat. (1947), § 17-409); first, those that are imposed on the counties by law and about which the county court is substantially without discretion; *** items 1 to 4 inclusive, being in the first class ***’It is interesting to note that the first item (Ark. Stat. (1947) § 17-409, sub-par. Sixth — 1.) provides: ‘ 1. To defray the lawful expenses of the several courts of record of the county or district and the lawful expenses of criminal proceedings in magistrate’s courts, ***’
“From this plain language and the many decisions analyzed in reaching the conclusion herein set forth, it seems fundamental that the County Court is responsible for the expenses of the courts in our judicial system.
* * *
“Here we have an item having to do with expenses of the Circuit Courts, *** It is inconceivable that the framers of our Constitution could have intended to stretch the plain language of Art. 7, § 28, so as to vest the County Court, an office requiring no special knowledge of the law, with exclusive jurisdiction to completely thwart the operation of our criminal courts in granting an accused certain rights, by refusing to pay expenses of that court. The Circuit Court, a State Office, was hereby discharging a duty imposed on it by the legislative branch, namely, granting a mental examination to one accused of a crime who has raised the defense of insanity. In view of the myriad of cases and the longstanding operation of Ark. Stat. (1947) § 17-409 (1879 Act) there can be no question but that the County Court and the Quorum Court, its appropriating agency, must pay the expenses of the courts of record within their boundaries.”

The quorum court is without discretion to establish the amount of the salaries of circuit court employees.

The county officials alternatively argue that Act 591 of 1981 is constitutionally invalid. The argument is correct. The Constitution of the State of Arkansas provides for three separate but equal branches of government. Article 4, Sections 1 and 2. Under our constitutional doctrine, the legislative branch is to fix salaries. Beaumont, Judge v. Adkisson, Judge, 267 Ark. 511, 593 S.W.2d 11 (1980). While the General Assembly may not delegate its legislative authority, it may by providing guidelines, delegate “the power to determine certain facts, or the happening of a certain contingency, on which the operation of the statute is by its terms made to depend.” Walden v. Hart, 243 Ark. 650, 420 S.W.2d 868 (1967). This rule was stated in Hooker v. Parkin, 235 Ark. 218, 225, 357 S.W.2d 534, 539, (1962) as .follows:

The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside the halls of legislation.

The statute at issue does not provide for grades or steps based upon training, education, experience, or other fact or thing to be used in the salary determination. The statute vests unbridled discretion in the judge and contravenes the separation of powers doctrine.

The Circuit Judge argues that, even if the statute is unconstitutional, he has the inherent authority to set the salaries. The argument assumes that there is no earlier act which validly sets the salaries of these employees.

The separation of powers doctrine necessarily implies that a court has the constitutional authority to order these acts done which are necessary and essential for the court to operate. However, that constitutional authority does not extend past ordering acts which are necessary and essential for the court to operate. Turner, Ex Parte, 40 Ark. 549 (1883).

The only evidence on the point is a rote phrase contained in a letter from the circuit judge to the quorum court stating that the amounts which he set were necessary and essential. This one conclusory phrase is not substantial evidence of absolute necessity. It is not sufficient to empower the circuit judge to exercise the constitutional authority to require these acts done which are necessary and essential for a court to operate.

The writ of mandamus directing the county officials to pay salaries in the amounts fixed by the circuit judge is dissolved because the statute is unconstitutional, and there is no substantial evidence showing that two probation officers are absolutely essential to the operation of the court.

Writ dissolved.

Hickman, J., concurs.

Purtle, J., dissents.

Darrell Hickman, Justice,

concurring. The majority concludes that the judgment below must be reversed for two reasons: (1) judges cannot legislate by setting salaries, Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980); Mears v. Adkisson, 262 Ark. 636, 560 S.W.2d 222 (1978); and (2) even if the act is unconstitutional, the court’s order alone is not sufficient to show that the salaries demanded for two probation officers were essential to the administration of justice. See Union County v. Union County Election Comm., 274 Ark. 286, 623 S.W.2d 827 (1981). That ought to end the matter. Yet most of the opinion dwells on an issue I think we need not answer. That is whether probation officers are county or state employees and the power of the general assembly, through what amounts to local legislation, to impose on counties all expenses for circuit court employees with no recourse at all for the counties.

All the authority the majority cites to support the proposition that the state legislature can require the counties to pay the salaries and expenses of the courts is pre-Amendment 55 and pertains to employees and expenses obviously necessary for the administration of justice. For example, the older cases state that a court reporter is undoubtedly necessary for any court of record. See McLellan v. Pledger, 209 Ark. 159, 189 S.W.2d 789 (1945). A court house or a place to hold court is also essential. Turner, ex parte, 40 Ark. 549 (1883).

But there have been changes in our judicial system so that now judges have secretaries, probation officers, deputy probation officers, case coordinators and bailiffs. That is, some judges do. Some are not so fortunate, because invariably the ability of a particular judge to get these assistants depends upon his influence with legislators serving the county or counties of the judge.

Before Amendment 55 it was customary, indeed necessary, for such local legislation to be approved by the local county judge, who had to insure that funds were available to pay local employees of the judges. That mutuality of respect and trust has obviously deteriorated and this case is a good example of what exists now: quorum courts, with the power over all the county expenses, in conflict with judges who have obtained special legislation for their individual needs.

I would not so quickly conclude that these probation officers are not county employees and that this is not a local matter. This particular circuit is composed of two counties, the largest in the state, Pulaski, and one of the smallest, Perry. There are ten judges serving the circuit. How many employees each has we do not know. Does Pulaski County pay the salaries of all the employees? The record is silent to these relevant facts. Until recently the court reporters were paid locally, each county bearing a part of the responsibility of the salary of the court reporters. Now they are paid by the state. Act 16 of 1981.

Undoubtedly, these employees are “local” or county employees according to the record. They are paid entirely from local funds; the state does not pay them one dime. Furthermore, the legislation was labeled “local,” thereby relieving from responsibility all legislators except those from Pulaski County. So has the state decided this is indeed a matter of state interest? Our prior cases might not control if this issue is squarely before us. Amendment 55 § 4 expressly provides that quorum court shall have the power to fix the salaries of county employees. We should not rush to judgment on this issue. The majority opinion does not mention Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984), which has altered dramatically our approach to local legislation. Until the state, in legislation that is not local, declares these employees to be state employees or a matter of state interest and orders the counties to pay their salaries, fully aware of its actions, or until we have a more complete record to decide the issue, I would withhold judgment.

There are some other things which ought to be said. We do not have many questions on the separation of powers issue. Either the separate branches of government try to avoid infringing on the powers of each other and, in the main, respect the roles of each other, or the disputes are allowed to pass without litigation. Most cases are like this one where both parties have good arguments but the disagreement seems trivial. The trial judge’s request seemed reasonable and no reason is given by the quorum court why it was refused. The quorum court appropriated just enough money to avoid a finding that it had refused to fund a position apparently necessary to the function of the court. Did it treat this judge’s request the same as other judges? We do not know. Perhaps the quorum court should address itself to its local legislators if it objects to legislation such as this. Perhaps the judges should make certain that such legislation is within the means of the local government and actually necessary before they seek it. With Amendment 55 a local legislative body now exists with new power and responsibility over local officials and the expenditure of money. That body is anxious to exercise the power and responsibility. Judicial officers who, before Amendment 55, were able to obtain their needs through the county j udge and local legislators now find themselves, just as all local officials do, having to humbly request funds from the quorum court. Sometimes the quorum courts do not act maturely.

It does not serve the best interests of the judiciary, local government, or state government to allow the conflict between local authorities and judges to continue. I believe a solution lies in encouraging the legislature and the judiciary to approach the problems of the circuit and chancery courts in a uniform manner. As this case illustrates, now the matter is approached on a piecemeal basis with local legislation. This will not stop until the legislature stops treating each court individually. Perhaps that will not happen until the judges stop asking. The counties, particularly Pulaski, which has an abundance of trial judges and court employees, should join in this effort, not in an attempt to avoid their rightful burden of the cost of local justice, but to find a fair resolution of a problem that will not improve if ignored.

There should be uniform treatment of the courts statewide. The legislature should determine how many employees are needed for each circuit and chancery court, declare it so, and pay them or pay part of the expense and order the counties to pay the remaining amount. Any other employees deemed necessary by the judges should be obtained and paid for locally. The needs of the judiciary would thus be met and judges would not have to beg. The quorum courts would have to pay certain expenses locally and would do so without quibbling. The friction between the two would stop. The General Assembly has the power to do this because it decides the number and geography of the circuit and chancery courts. In 1977 reapportionment equalized case loads and the geographical areas of the circuits. Act 432 of 1977.

Our decision has resolved nothing of importance; but, as a result a great deal could and should be resolved.

John I. Purtle, Justice,

dissenting. In my opinion this court has lately been headed in the right direction on matters relating to special and local legislation. I agree with the opinions in Mears v. Adkisson, 262 Ark. 636, 560 S.W.2d 222 (1978) and Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980). I think the trial court decided the present case consistent with Mears and Beaumont. We all agree that the General Assembly may lawfully delegate some of its power. Our differences arise on the question of whether Act 59.1 of 1981 exceeds the bounds of lawful delegation. The majority think it does and I think it does not.

The power here delegated is about as little as can be found and still qualify as delegation. The only power delegated to the circuit judges by Act 591 is the place on the salary scale where their employees are to be placed. There is an upper and a lower limit. This is the same type of power granted to other agenices. Discretion is given to state agencies to place their employees at appropriate levels of the pay scale provided by the legislature. In Beaumont there was no ceiling on the salaries or the number of employees. Also, the delegation was only to a part of the circuit j udges within the Judicial District. In Beaumont we stated: “The only way that Act 629 could be legal is if it were held to be an act relating generally to all the circuit courts in the Sixth Circuit and it is determined to be essential to the administration of justice.” Act 591 does apply to all courts within the Sixth Circuit.. In these modern days there is no doubt in my mind that probation officers and bailiffs are essential to the administration of justice. Without them it could become nearly impossible to conduct orderly trials and keep track of those serving probation and suspended sentences.

Amendment 55, Section 1 (a) to the Constitution of the State of Arkansas provides that Quorum Courts “may exercise local legislative authority not denied by the Constitution or by law.” [Emphasis added.] In the present case the legislature has provided by law that the circuit judges determine the level of pay for certain officers. Act 742 of 1977 [Ark. Stat. Ann. §§ 17-3101 et seq. (Repl. 1980)] implemented Amendment 55 and specifically states that Quorum Courts must operate within the limitations established by law. More specifically Quorum Courts “shall perform such legislative duties as may be prescribed by law.” [Emphasis added.] Ark. Stat. Ann. § 17-3601 (b). The county in this case had been directed by law to set the salaries here in question as determined by the circuit judge. County governments are prohibited from exercising any power in any manner inconsistent with state law. Ark. Stat. Ann. § 17-3805(m). Therefore, the Quorum Court ordinance setting these salaries at levels other than what the judge ordered is contrary to state law and is void.

We dealt with the “local and special” issue in Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984) when we stated:

The Legislature has traditionally met the growing judicial needs of an area by statutes which apply only to individual counties, judicial districts or even divisions within districts. But these statutes have not been held to be “local or special” within the meaning of Amendment 14, since they were part of a judicial system for the entire state . . . We will continue to hold that statutes designed to meet the judicial needs of an area on a non-discriminatory basis are a part of a judicial system for the entire state and are not local and special within the meaning of Amendment 14, even though such statutes may apply only to individual counties, judicial districts or divisions within districts.

We held in Littleton that an act is not local or special unless the class it establishes has no reasonable relation to the purpose or subject matter of the act or it exempts its operation from persons or areas which would fall naturally within the area of the act. It is my opinion that the class created by the Act here in question has a reasonable relation to the subject matter of the Act and makes no exemptions otherwise falling within its ambit.

I do not find it necessary to consider whether the circuit courts have inherent power to order such payments as being necessary to the administration of justice because the General Assembly enacted a state law authorizing the circuit judges to establish the salary of those employees. The upper and lower limits were established. The judges were authorized to fix the salary within the delegated authority. The Quorum Court was defying a state law and should not be allowed to do so. The Sixth Judicial District consists of Perry and Pulaski Counties. Suppose the counties cannot agree on a salary?

For the reasons set out above and those contained in the majority opinion I would affirm the trial court.


author: Robert H. Dudley, Justice.

text:
    James FREGO v. JONESBORO CIVIL SERVICE COMMISSION
    84-222
    684 S.W.2d 258
    Supreme Court of Arkansas
    Opinion delivered February 18, 1985

      Wilson, Grider & Castleman, by: Murrey L. Grider, for appellant.

      Judy A. Henson, for appellee.
   Robert H. Dudley, Justice.

This appeal involves construction of the rules and regulations of the Jonesboro Fire Department and the Jonesboro Civil Service Commission. Jurisdiction to interpret rules of administrative agencies and regulatory bodies is in this Court. Rule 29(1 )(c).

Section 49 of the regulations of the Jonesboro Fire Department provides for testing fire department lieutenants on their knowledge of the location of streets and fire hydrants. It further provides that lieutenants who fail to maintain an average yearly score of 70% are given a one-year grace period to bring up this average. If a lieutenant does not bring his average to 70% within that year, he will be demoted. Appellant, Lieutenant James Fregó, has been employed by the Jonesboro Fire Department for over fifteen years. In 1980, he received written notice from the Fire Chief that his 1979 average on the streets and hydrants exam was 56%, his 1980 score was 68%, and that he must maintain a 70% average to maintain the rank of lieutenant. In 1981, he brought his average up to 77%, but in 1982 his average dropped to 59%. The Chief notified him that if he did not bring his average up to 70% by December, 1983, he would be reduced in rank from lieutenant to hoseman. His 1983 exam score was only 41%. The Chief gave appellant written notice that he would be reduced in rank in January, 1984. Appellant appealed to the Jonesboro Civil Service Commission. After a hearing the Commission voted unanimously to uphold appellant’s demotion. Upon appeal, the circuit court affirmed the decision of the Commission. We affirm the circuit court.

Appellant first contends that the circuit court erred in construing the rules and regulations of the fire department and Civil Service Commission. We find no merit in the argument.

The elements of the fire department regulation providing for demotion for failure to maintain a 70% average have been set out.

Next, Section 13 of the Civil Service regulations authorizes the Chief to reduce appellant in rank. “A member . . . may be. . . reduced in rank. . . for cause, and the person so reduced. . . shall be served with the reason ... in written form by the Chief of the department.”

Appellant argues that the Chief is prevented from reducing him in rank since an article of the Civil Service regulations provides that the Chief shall make day to day rules for the operation of the department. Again, the argument is without merit. The regulation giving the Chief authority to make day to day rules is complementary and not inconsistent with the regulations giving him authority to reduce members of the department in rank.

Appellant contends that the fire department regulations are invalid because Ark. Stat. Ann. § 19-1604 (Repl. 1980) requires that city councils adopt regulations by ordinance, but the Jonesboro City Council only adopted the rules by motion. The argument is without merit because the statute is open ended as to the method of adoption. In parliamentary practice adopt means “to accept, as a report.” Webster’s New International Dictionary, Second Edition (1953). There was compliance with the statute when the city accepted the regulations by motion.

Appellant contends that the Civil Service Commission cannot enforce fire department regulations since the commission did not adopt those regulations. The answer to that argument is that Ark. Stat. Ann. § 19-1603 give the Civil Service Commission the authority to enforce fire department regulations adopted by the city council.

Appellant next argues that the ordinance creating the Civil Service Commission was adopted on April 4,1983, and that it repealed any conflicting regulations. From that basis, he argues that the fire and hydrant exam is in conflict with the ordinance creating the Civil Service Commission, and that he cannot yet be demoted because, after it was readopted, he was entitled to one year to take the exam, to April 4, 1984, and one year of grace, to April 4, 1985. The argument is of no avail because the regulation providing for the exam and the ordinance creating the commission are not in conflict. The ordinance did not repeal the regulation.

Appellant last argues that he was denied due process because the transcript of his hearing before the Commission was not “stenographically recorded.” See Ark. Stat. Ann. § 19-1603 (Repl. 1980). The answer to that argument is that appellant was not denied due process since the circuit court allowed appellant to supplement the record with the exhibit which, he contends, was left out of the original transcript. As a result, there is no material omission from the original transcript which could have caused appellant a denial of due process.

Affirmed.


author: David Newbern, Justice.

text:
    Eugene James “Yankee” HALL v. STATE of Arkansas
    CR 84-168
    684 S.W.2d 261
    Supreme Court of Arkansas
    Opinion delivered February 18, 1985

      Robert A. Newcomb, for appellant.

      Steve Clark, Att’y Gen., by: Michael E. Wheeler, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is an appeal from a denial of post conviction relief sought pursuant to Ark. R. Crim. P. 37. Our jurisdiction is based on Arkansas Supreme Court and Court of Appeals Rule 29(l)(e).

The two questions presented below were (1) whether the appellant was denied the effective assistance of counsel and (2) whether the state has lived up to its plea bargain. We hold the trial court was correct in finding for the state on both points, thus we affirm.

The appellant was charged with capital felony murder and with attempted murder arising from a separate incident. The first charge was reduced to first degree murder and the attempt charge was dropped. In exchange for the charge reduction and for dropping the attempt charge, and the appellant now claims other promises, the appellant agreed to and did testify in other trials against other persons charged in connection with the murder to which he pleaded guilty.

1. Counsel Effectiveness

The sole claim of the appellant in this respect is that his counsel informed him he would be eligible for parole in seven to ten years. He says had he known his sentence to life imprisonment would not permit him to be paroled he would not have pleaded guilty. Both of the lawyers who represented the appellant at his trial said at the Rule 37 hearing they discussed with the appellant the possibility he could be eligible for parole if his life term were commuted to a term of years. Neither could say he had told the appellant that one sentenced to an uncommuted life term would be ineligible for parole, but each said he had not told the appellant he could be eligible for parole on an uncommuted life sentence. One of the lawyers testified the appellant “was aware” that there was no parole eligibility with a life sentence.

To reverse the trial judge’s denial of post conviction relief under Rule 37 we would have to find the court’s decision was clearly against the preponderance of the evidence. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984); Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981). The only testimony that the appellant was unaware his life sentence would not carry parole eligibility absent commutation came from the appellant. Based on the record of the hearing the court was free to hold that the preponderance of the evidence showed that while appellant’s lawyers speculated with him about commutation and parole eligiblity, the appellant was not misled.

2. Bargain Keeping

The appellant contended at the Rule 37 hearing he had been promised (a) that he would serve his sentence at the diagnostic unit or other special place and not be placed in the general prison population at the Cummins unit, (b) that various persons would write letters for him recommending early parole, and (c) that the then Pulaski County sheriff would commute his sentence upon becoming governor.

The record shows that none of these alleged promises were included in the written plea agreement. The recorded agreement showed only that the appellant’s guilty plea was made in exchange for reducing the charge from capital to first degree murder and dropping the attempt charge. It also stated the appellant’s sentence would be served “in the Arkansas Department of Correction.”

We agree the state must keep any bargain it has made, Santobello v. New York, 404 U.S. 257 (1971), and if it does not the guilty plea may be withdrawn. Mabry v. Johnson, _U.S. _, 81 L. Ed. 2d 437, 104 S. Ct. 2543 (1984). However, we cannot say the court’s finding on this point was clearly against the preponderance of the evidence.

While the record demonstrates concern by the appellant, his lawyers and law enforcement officials about his safety as a prisoner, the promises and their status as quid pro quo were testified to only by the appellant. One of his lawyers testified that, while there was a desire on the part of the appellant that he be “moved out of the state” and thereafter his wish became that he be “confined to the Diagnostic Unit in Pine Bluff,” both of those prospective agreements “fell through” before the agreement was entered.

The sheriff testified he had made no promise to commute the appellant’s sentence if he became governor. He also testified that he had promised no letter to the parole officials on the appellant’s behalf.

Otherwise in regard to the prospective letters, one of the appellant’s counsel testified there were no representations made as far as letter writing was concerned.

We have reviewed the entire record of the Rule 37 hearing. Taken as a whole it demonstrates the written plea agreement adequately reflected the intent of the appellant and the state. Certainly we cannot say the evidence clearly preponderates to the contrary.

Affirmed.

Holt, C.J., not participating.


author: Per Curiam.

text:
    Sammy Joe ELMORE v. STATE of Arkansas
    CR 85-25
    684 S.W.2d 263
    Supreme Court of Arkansas
    Opinion delivered February 18, 1985

      John Wesley Hall, Jr., for petitioner.

      Steve Clark, Att’y Gen. by: Michael E. Wheeler, Asst. Att’y Gen., for respondent.
   Per Curiam.

Petitioner was found guilty by a jury of attempted capital murder and fleeing. He was sentenced to terms of ten and three years imprisonment in the Arkansas Department of Correction. The Court of Appeals affirmed. Elmore v. State, 13 Ark. App. 221, 682 S.W.2d 759 (1985). Petitioner has now filed a petition for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the allegation that his trial attorney, Bob Scott, was ineffective.

Petitioner alleges that counsel failed to subpoena witnesses, did not prepare for trial adequately, and was ineffective in the questioning of witnesses. He also contends that there was a conflict of interest because counsel intended to file a civil suit in petitioner’s behalf, the outcome of which was likely to be affected by the outcome of the criminal proceeding.

To prevail on an allegation of ineffective assistance of counsel, the petitioner has the heavy burden of overcoming the presumption that counsel is competent. Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984). The presumption cannot be overcome without factual substantiation for the allegation sufficient to show that counsel’s conduct undermined the adversarial process and resulted in actual prejudice to the degree that petitioner was denied a fair trial. Strickland v. Washington, _U.S. _, 104 S.Ct. 2052 (1984). Petitioner has not met that burden.

Petitioner offers no proof that the civil suit affected counsel’s conduct at trial. He also fails to provide in the petition specific instances of poor trial performance beyond the general statement that the questioning of witnesses was inadequate. Petitioner’s allegation that counsel did not subpoena witnesses would be deserving of an evidentiary hearing, but petitioner fails to state in the petition what the witnesses’ testimony would have been. As a result, we cannot determine whether the witnesses were important to the defense. This Court will not peruse the record in an attempt to determine what factual grounds, if any, exist for an allegation. Hill v. State, 278 Ark. 194, 664 S.W.2d 282 (1983).

Petitioner also contends that the prosecutor offered to recommend a suspended sentence on the fleeing charge and drop the attempted capital murder charge if petitioner would enter a guilty plea. He alleges that counsel never communicated the plea offer to him. The affidavit of the deputy prosecutor is attached to the petition verifying that he discussed the negotiated plea with counsel but counsel refused it.

We have held that a plea agreement is an agreement between the accused and the prosecutor, not an agreement between counsel and the prosecutor. Rasmussen v. State, 280 Ark. 472, 658 S.W.2d 867 (1983); see also A.R.Cr.P. 25.2. As such, counsel has the duty to advise his client of an offer of a negotiated plea. Before this Court will order an evidentiary hearing in circuit'court, however, the petitioner must allege that he would have accepted the plea. Accordingly, the petition is denied without prejudice to the filing of a subsequent petition addressing the failure to communicate a plea bargain. In all other respects the petition is denied with prejudice.

Petition denied without prejudice in part and with prejudice in part.

Hays, would deny.


author: Jack Holt, Jr., Chief Justice.

text:
    Vernell FURR v. STATE of Arkansas
    CR 85-23
    685 S.W.2d 149
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985

      Herman H. Hankins, Jr. and Steven G. Beck, for appellant.

      Steve Clark, Att’y Gen., by: Michael E. Wheeler, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Whether or not there is a constitutional and statutory right to counsel at a revocation hearing is the issue presented by this appeal. We find that where imposition of sentence is suspended and a defendant is placed on probation, there is a right to counsel at a subsequent revocation hearing. The case was transferred by the Court of Appeals under Sup. Ct. R. 29(4)(b).

The appellant, Vernell Furr, pleaded guilty on July 11, 1983, to possession of a controlled substance with intent to deliver. His plea was taken under advisement by the court, which deferred imposition of sentence for a period of five years subject to certain conditions. A motion to revoke the probationary period and impose sentence was filed by the State on November 8, 1983. Although formal notice to the appellant of a hearing on the revocation was filed the same day, the record does not reflect that the appellant ever received the notice. On June 11, 1984, the appellant was arrested pursuant to a bench warrant. He was brought before the court on June 15,1984, and, without being advised of his right to counsel and without the assistance of counsel, was questioned by the court. The appellant admitted that he had violated the conditions of his probation, but attempted to offer mitigating circumstances. The trial judge sentenced the appellant to the maximum statutory period, a term of 10 years imprisonment.

Ark. Stat. Ann. § 41-1209 (Repl. 1977) provides in pertinent part:

(2) A suspension or probation shall not be revoked except after a revocation hearing. Such hearing shall be conducted by the courf that suspended imposition of sentence on defendant or placed him on probation within a reasonable period of time ... The defendant shall be given prior written notice of the time and place of the revocation hearing, the purpose of the hearing, and the condition of suspension or probation he is alleged to have violated. Except as provided in subsection (3), the defendant shall have the right to hear and controvert evidence against him, to offer evidence in his own defense, and to be represented by counsel. [Emphasis added.]

The burden is on the State to demonstrate that the appellant was informed of the revocation hearing and given an opportunity to contact an attorney. Akins v. State, 4 Ark. App. 235, 628 S. W.2d 880 (1982). Here there is evidence of the filing of notice but no proof that it was received by the appellant as required by § 41-1209(2), supra. The record further reflects that the appellant was not informed while in court of his statutory right to be represented by counsel.

The appellant’s statutory rights are reinforced by the sixth amendment of the United States Constitution. The U.S. Supreme Court addressed the issue of right to counsel in Mempa v. Rhay, 389 U.S. 128 (1967) finding that counsel is required “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” The Court held that the time of sentencing is a critical stage in a criminal case and counsel’s presence is necessary. See Annotation, Parole or Probation Revocation, 36 L.Ed. 2d 1077 § 23(a) p. 1117 (1974); Annotation, Probation Revocation Right to Counsel, 44 ALR3d 306 § 2 p. 311 (1972). The commentary after § 41-1209 cites Mempa for the proposition that indigent defendants are entitled to appointed counsel if sentencing is to follow revocation. See also Hawkins v. State, 251 Ark. 955, 475 S.W.2d 887 (1972).

The right to counsel may be waived, but the waiver must be made knowingly, voluntarily, and intelligently. Leak v. Graves & State, 261 Ark. 619, 550 S.W.2d 179 (1977). Here the only potential evidence of waiver is the fact that appellant waived his right to counsel when he initially pled guilty. Almost one year passed'between the appellant’s plea of guilty and his revocation hearing. Obviously, it cannot be said that the waiver of counsel when the plea was entered constitutes an intelligent waiver to all further proceedings. Such a rule would circumvent the appellant’s right to counsel during the most critical aspect of the criminal proceedings against him, revocation of his probation and sentencing nearly a year later.

Under the circumstances of this case, the trial court had a duty to advise appellant, either by the service of notice of the revocation hearing, or in open court, of. his right to be represented by counsel. When the court failed to do so it committed prejudicial error.

The State’s argument that the appellant’s failure to object to the lack of counsel at the trial level precludes this argument on appeal is without merit. In Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980) this court stated four exceptions to the basic requirement of an objection to the trial court. The second exception which “arises when the error is made by the trial judge himself at a time when defense counsel has no knowledge of the error and hence no opportunity to object” is applicable here. The very fact that the appellant was not aware of his right to object further demonstrates the necessity for counsel at a hearing of this nature. The appellant had the right to be represented by counsel. Accordingly, the sentence is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded.


author: George Rose Smith, Justice.

text:
    Randall K. LYNCH v. MISSOURI-PACIFIC RAILROAD COMPANY
    84-232
    684 S.W.2d 817
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985
    [Rehearing denied April 1, 1985.]

      W.H. Armstrong and Bobby E. Shepherd, for appellant.

      Herschel E. Friday and Donald H. Bacon, for appellee.
   George Rose Smith, Justice.

This is a suit by Randall K. Lynch, now age 25, for personal injuries and property damage sustained when his pickup truck was struck by a Missouri-Pacific train at a crossing in Smackover. At the end of the trial the judge directed a verdict for the defendant, on the ground that Lynch had executed a valid release of his claim. The only question on appeal is whether there was any issue of fact concerning the validity of the release. Our jurisdiction, rests on Rule 29 (1) (o).

The accident happened on a Thursday morning in September, 1981. As Lynch was crossing the track his truck was struck by a train coming from his right at 20 to 25 miles an hour. Lynch was knocked temporarily unconscious and was taken to a hospital. His principal injury was a torn ligament that caused a shoulder separation — a painful injury. He was released that morning to go home, with instructions to return that night for surgery the next morning. The operation, with a general anesthetic, was performed on Friday morning. Lynch remained in the hospital another night and went home Saturday.

On Monday the accident was being investigated by a Missouri-Pacific claim agent, Dennis Lane. Taking a court reporter with him, Lane went to Lynch’s home to obtain a statement, finding Lynch at home alone. The interview was taken down and transcribed by the reporter. Lynch was apologetic about the accident. He said that at the crossing he had looked to his left to see who was at work at the building where he was employed as an electrician. He did not look to his right. “I usually look, but that morning I guess I just took it for granted because I had went across it so many times.” He did not see the train. “Like I said, it was my fault all the way. If I had looked it would have never happened.” Near the end of the interview he said:

But, you know, people have said well, you know, you ought to try to sue the railroad. Here is the way I look at it. It was my fault all the way, and I couldn’t live with myself if I tried to do something like that. . . .And there is no way whatsoever, way, form or fashion that I would do that.

The claim agent testified that after the statement was concluded and the reporter had stopped taking it down, he asked Lynch if he was interested in making a settlement. The agent’s offer of $500 was accepted and paid, without any dickering. Mrs. Lynch had come in; she signed the release along with her husband. At Lane’s request they each wrote on the release, in longhand, “I have read this and understand it,” and signed that also. The $500 check was deposited a couple of days later.

At the trial Lynch testified differently, saying that the train’s whistle was not blown and that he had looked to his right, but his vision was obscured by vegetation. As to the release, he testified that he remembered letting a Missouri-Pacific agent into his house, but he remembered nothing else about the interview. He admitted that, as shown by the reporter’s transcript, he had correctly given the date of his birth, his Social Security number, the dates of his children’s birth and other information. He admitted the genuineness of his wife’s signature and his own.

There is no proof that Lane was guilty of misrepresentation or undue influence, as alleged in the complaint. The only question is whether there is substantial evidence that would have supported a verdict finding, in the language of a case relied on by the appellant, that when Lynch signed the release “his physical or mental condition was such that. . .[he] was incapable of appreciating the character of the instrument and the consequences of executing it.” St. Louis, I.M. & S. Ry. v. Bearden, 107 Ark. 363, 155 S.W. 499 (1913).

We find no such evidence. Lane testified that Lynch did not appear to be drowsy, in pain, or uncomfortable. The court reporter said he seemed normal. The transcribed interview, comprising 19 typewritten pages, shows that Lynch understood the interview and took full responsibility for the accident. There is no medical or other testimony that Lynch was incapable of transacting business that day, despite his injured shoulder. His doctor did testify that a general anesthetic may cause a temporary loss of memory, but the interview shows that Lynch had no such loss at the time. He had taken a pain medicine containing codeine, but there is no testimony that it incapacitated him. The $500 consideration was not grossly inadequate if Lynch was wholly or mostly at fault. Moreover, inadequacy of consideration alone is not ordinarily a sufficient basis for avoiding a release. Harmon v. Harrison, 201 Ark. 988, 147 S.W.2d 739 (1941).

The question is not whether Lynch told the truth when he disclaimed any recollection of the settlement. That is immaterial. If the release was valid when executed, as the undisputed proof shows that it was, its validity could not be affected by Lynch’s later loss of memory. Otherwise even the most solemn written instrument would not be safe from an attack based simply upon a loss of memory.

Affirmed.


text:
    Fred C. NEWMAN v. FIRST NATIONAL BANK, Harrison, Arkansas, et al
    84-221
    685 S.W.2d 147
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985

      Bill F. Doshier and Dan R. Bowers, for appellant.

      Walker & Campbell, by: Gail Inman-Campbell, for appellee.
   Darrell Hickman, Justice.

The issue is whether the appellant stated a cause of action based on an oral agreement between his uncle and aunt to execute joint or reciprocal wills and as evidenced by his uncle’s will. The chancellor allowed the appellant to amend his complaint twice and finally concluded tht the appellant failed to state a cause of action. We agree.

The appellant, Fred C. Newman, is the nephew and sole heir of John R. Newman, who died in February, 1972. His wife, Clyde Newman, died in March, 1983, and this lawsuit was filed in chancery court to enjoin the probate of her will. It was alleged that John and Clyde made an agreement in 1949 to execute reciprocal wills in which it was agreed that upon the death of one, the survivor would inherit all the property of the deceased, and upon the death of the survivor, one-half of the property would go to John’s collateral heirs and one-half would go to Clyde’s collateral heirs. The complaint alleged that John had executed his will in accordance with the agreement; Clyde, however, breached the agreement by executing another will. The appellant argues that Clyde should be held to the agreement.

The trial court held that the will of John Newman, essential to appellant’s claim, was evidence that the appellant’s claim must fail. (The will is reproduced as an appendix to this opinion.) It does not provide for the collateral heirs, which include the appellant, to inherit unless both John Newman and Clyde Newman died of a common disaster, which did not occur. Indeed, it is alleged that John Newman died in 1972 and Clyde Newman ten years later.

We feel the trial court was right in finding that the language of the will was clear, and oral evidence is not admissible to alter that intent. Vaught v. Vaught, 247 Ark. 52, 444 S.W.2d 104 (1969).

The appellant attempts to take one sentence in John Newman’s will out of context to support his case. That sentence is in Paragraph 3 and it reads:

. . .1 hereby direct that any property which my wife and I owned jointly at the date of such common disaster, or which I have acquired by reason of having survived my wife, shall be equally divided among my collateral heirs and the collateral heirs of my wife, ....

This interpretation, of course, overlooks the obvious qualification of this statement, which precedes it and states that this provision is effective if both parties die of a common disaster, a fact the appellant concedes in his pleadings did not occur.

The appellant persists, however, by stating that the complaint should not be dismissed because it was alleged that an oral agreement was made which did provide for the collateral heirs to get one-half each on the death of the last party. This, of course, would be clearly contrary to the intent of the testator in his will which was offered as proof of the agreement. This allegation is nothing more than an attempt to alter the plain and unambiguous language of the will with oral testimony. Furthermore, the trial court correctly observed that even if there were an oral agreement, the appellant obviously cannot prevail because John’s will breaches the alleged oral agreement. To be in accordance with the agreement, his will should have stated that upon the survivor’s death, their collateral heirs would share equally. Since it does not, his will violated the very agreement asserted, a fact which defeats the appellant’s argument. Allen v. First National Bank of Batesville, 230 Ark. 201, 321 S.W.2d 750 (1959).

Therefore, no matter which route the appellant takes, he does not have a cause of action, and the trial court correctly dismissed the suit.

Affirmed.


author: John I. Purtle, Justice.

text:
    CITIZENS BANK, Bentonville, Arkansas; Now First National Bank, Bentonville, Arkansas v. Paul CHITTY
    84-223
    684 S.W.2d 814
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985

      Ralph E. Williams and Mark W. Corley, for appellant.

      Croxton ér Boyer, for appellee.
   John I. Purtle, Justice.

A Benton County Circuit Court jury awarded appellee the sum of $8,000 on his complaint against the appellant for $9,000. On motion of appellant the trial court reduced the judgment by the amount appellee had collected from the drawer of the bad checks, Arthur L. Wagner, of Springfield, Missouri. Appellant appeals from the jury verdict on the ground that the trial court gave an erroneous instruction. The appellee cross appeals from the action of the trial court in reducing the judgment. We hold that the instruction was not prejudicial and that the court erred in reducing the jury verdict.

Arthur L. Wagner wrote appellee, Paul Chitty, three checks in 1981. All three were dishonored, the first two for insufficient funds and the third because the account was closed. The sequence of events is important in understanding the facts. The first check, in the amount of $4,750, was written on August 18, 1981, and deposited in appellee’s account in the appellant bank on August 25, 1981. The second check, in the amount of $4,500, was dated September 9, 1981. The first check was returned to the appellant bank on September 10, 1981, because of insufficient funds. The first check was sent back through banking channels for collection on September 11, 1981. On this same day Wagner wrote appellee a third check in the amount of $9,000. The second check was deposited by appellee in the appellant bank on September 14, 1981. The third check was deposited on September 16, 1981. On October 5, 1981, the appellant learned through its wire service that the second check was being returned for insufficient funds. The appellant also learned by wire service on September 24, 1981, that the drawer’s account had been closed. The first two checks were charged back to appellee’s account on October 7, 1981, and the third on October 15, 1981.

The appellee payee filed suit for damages against the appellant bank in the amount of $9,000 plus costs and prejudgment interest. The complaint alleged negligence in breach of a fiduciary duty owed to the depositor (appellee). The bank filed a general denial and attempted to reserve the right to counterclaim or cross-claim. However, the answer was not amended before trial.

Prior to trial the appellee had expended over $2,000 in attempting to obtain satisfaction from the maker of the bad checks. Proof of collection costs was introduced at the trial. Upon a post-trial motion of appellant, the trial court amended the judgment to give the bank credit for the $5,703 which appellee had collected from the maker of the bad checks.

Both parties appeal. The bank contends it was prejudicial error to give appellee’s instruction #8. The appellee contends that the court erred in giving the bank credit for the amount collected from the maker of the bad checks.

The instruction upon which the appellant relies for reversal reads as follows:

RIGHT OF CHARGE-BACK OR REFUND
If a collecting bank has made a provisional settlement with its customer for a check and said check is dishonored, the collecting bank may revoke the settlement given by it and charge back the amount of any credit given for the check to its customer’s account or obtain a refund from its customer if, by its midnight deadline or within a longer, reasonable time after it learns the facts of the dishonored check, send notification of the facts to the customer. The right to revoke, charge back, or obtain a refund from the customer, terminates if and when a settlement for the check received by the bank is or becomes final.

The objection to the instruction was that it related to the bank’s action in making charge backs to appellee’s account and that the issue of charge back was not before the jury. In looking at the complaint it alleges a breach of a fiduciary duty in failing to notify appellee that the first check was returned for insufficient funds. Thus, appellee alleges, the bank’s negligence in not notifying him resulted in damages in the amount stated in the complaint. Admittedly, there was no mention of an illegal charge back in the complaint. The challenged instruction did not inform the jury that the amount of the charge was to be considered in arriving at a verdict on damages. It did inform the jury that the bank could make a charge back if it acted by its midnight deadline or within a longer reasonable time, provided it notified the customer. Therefore, the court was simply instructing the jury on the bank’s duties to its customer. The verdict was not in an amount of any or all of the checks which were charged back to the customer’s account. The instruction was not contrary to appellee’s theory of negligence.

Ark. Stat. Ann. § 85-4-103 (1) (Add. 1961) states that a bank may not disclaim its responsibility for “failure to exercise ordinary care or . . . limit the measure of damages for such lack or failure ...” “The measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount which could not have been realized by the use of ordinary care, and where there is bad faith it includes other damages, if any, suffered by the party as approximate consequence.” Ark. Stat. Ann. § 85-4-103 (5). Thus it may be seen that the amount of recovery is limited to the amount of the item[s] in the absence of bad faith. Also, the damages are decreased by the amount which would not have been recovered had the bank exercised ordinary care.

According to the definitions set out in Ark. Stat. Ann. § 85-4-104 (1) (h), “midnight deadline” is midnight on the next banking day following the banking day on which the item is received. A bank must use ordinary care in sending notice of dishonor after learning that an item has not been paid or accepted and the burden is on the bank to establish the reasonableness of notice provided beyond its midnight deadline. Ark. Stat. Ann. § 85-4-202 (1) (b) and (2) (Add. 1961 and Supp. 1983). In First National Bank of Springdale v. Hobbs, 248 Ark. 76, 450 S.W.2d 298 (1970), this court affirmed a judgment against the bank which had paid checks on an unauthorized signature. Hobbs sued the bank for checks totaling $31,001.49 and obtained a judgment for $12,495.33. The judgment was upheld on the grounds that there was evidence upon which the jury could have found that the bank failed to use ordinary care. Likewise in the present case there was evidence before the jury from which it could find that the bank failed to use ordinary care in handling the three dishonored checks.

Rule 15 (b) of the Arkansas Rules of Civil Procedure states in part: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” The complaint here specifically pled lack of ordinary care in the handling of the first check. The parties stipulated facts about the dates the three checks were written, deposited, returned and charged back to appellant’s account. The first check was deposited to appellee’s account on August 25,1981, and the charge back occurred on October 7, 1981, the same date check number two was charged back, although it had been deposited on September 14, 1981. The third check was deposited on September 16, 1981, and charged back on October 15, 1981, although the bank received notice it had been dishonored by the paying bank on September 24, 1981. The jury had before it evidence and instruction relating to “midnight deadline,” “reasonable time,” “charge back,” and “ordinary care.” It could have found that appellee was damaged in the amount of any item less an amount which would have been lost even if appellant has used ordinary care. The drawer of these three items was apparently still around and in business when at least two of the items were handled and possibly when the third was handled. Under the facts presented here the jury may have found the $8,000 was the amount of the item[s] less the amount which would have been lost even had the bank exercised ordinary care. The consequential damage instruction was requested by the appellee and not objected to by the appellant. The pleadings never identified damages as anything but “damages.” The prayer was simply that appellee recover “the sum of $9,000, plus accured interest.” We agree that under the facts presented the appellee was not entitled to consequential damages because there was not even an implication that the bank acted in bad faith.

Cross appellant argues the court erred in amending the judgment to give the bank credit for the amount appellee had collected from the bad check writer. We agree with this argument because the judgment was supported by the evidence and there had been no amendment to the general denial answer filed by the bank. Rule 13 (a) of the Arkansas Rules of Civil Procedure states in part: “A pleading shall state as a counterclaim any claim which, at the time of the filing of the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.” The subrogation claim by the bank arose out of the same transactions as the allegations of the complaint and there were no other parties necessary. Therefore, failure to assert the counterclaim prevented the court from reducing the judgment by the amount already collected by the appellee at the time of trial.

Affirmed on direct appeal and reversed on cross appeal.


text:
    Donna Fay MORGAN and Fletcher Eugene MORGAN v. NATIONAL PIZZA COMPANY d/b/a PIZZA HUT
    84-234
    684 S.W.2d 812
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985

      W. Bruce Leasure, for appellant.

      Rose Law Firm, by: Phillip Carroll, for appellee.
   John I. Purtle, Justice.

This is an appeal from the order of the Pulaski County Circuit Court setting aside a j udgment rendered on a writ of garnishment. It is argued the trial court erred in quashing the service and setting aside the judgment and that such action was the result of bias and insufficient evidence. We find no prejudicial error by the court.

The appellants obtained a judgment against the Gwatneys in the amount of $2,200. The Gwatneys failed to satisfy the judgment. Appellants thought one of the Gwatneys was employed by a “Pizza Hut” on Camp Robinson Road. A call to the Secretary of State’s office indicated the owner was Pizza Hut of America, Inc., with headquarters in Wichita, Kansas. A call to Wichita indicated each Pizza Hut was individually franchised. Appellants were advised that the local Pizza Hut should be contacted. The Camp Robinson Pizza Hut informed appellants that its headquarters was on Foxcroft Road in Little Rock. Thereafter appellants placed allegations and interrogatories as well as a writ of garnishment in the hands of a process server who was directed to proceed to Foxcroft Road for the purpose of serving the papers. An affidavit of service was executed on May 4, 1984, in which it was stated that service was had upon Marty Couk at the Foxcroft address.

A second set of garnishment papers was served on C.T. Corporation, agent for service of process for Pizza Hut of America, Inc., on June 18, 1984. There was no response to either of these two sets of documents. Judgment was entered against Pizza Hut on July 3,1984. The appellants obtained a writ of execution on August 10, 1984, which directed the sheriff to execute against the estate of Pizza Hut on Camp Robinson Road.

An attempt to execute on the Camp Robinson Pizza Hut property brought out the real owner, National Pizza Company, which sought immediate relief on September 4, 1984. The relief sought and obtained was to set aside the judgment against the garnishee. The written order was filed on September 6, 1984.

The order setting aside the judgment against the garnishee stated, among other things, that service of process was not obtained on Marty Couk. The evidence on this issue was very disputed. The court found that Marty Couk was not the proper person to serve even if he had been served. The court also found Mr. Peterson was in the office at the time of the alleged service and that he was the proper person for service. The court considered the testimony of the process server that he served Couk although he did not remember doing so. Couk and Peterson testified that Couk was not served, was not at the office at the time, and was not the agent for the appellee or in charge of its office.

The jurisdictional statement in appellant’s brief implies that all appeals from an order dismissing a garnishment are appealable to this court. There must be other grounds before this court will exercise jurisdiction. The order appealed from is appealable pursuant to Ark. R. App. P. 2 (a)(5). However when the words Supreme Court appear in the rules of appellate procedure, one must substitute the words Court of Appeals in cases where the appellate jurisdiction is in that court under Ark. Sup. Ct. R. 29. See Per Curiam of May 5, 1980, 269 Ark. 980, wherein we amended Ark. R. App. P. 1. Our jurisdiction is exercised here pursuant to Ark. Sup. Ct. R. 29 (l)(c) because this appeal involves the interpretation or construction of Ark. Stat. Ann. § 27-347 (Repl. 1979).

The appellant correctly states the question to be decided is whether the requirements of Ark. Stat. Ann. § 27-347 were met. The statute in question requires service to be had upon the person in charge of the office of business. The trial court made a factual determination that the person in charge was not served in this instance. We will not reverse unless the decision of the trial court was clearly erroneous. Walker v. Hooker, 282 Ark. 61, 667 S.W.2d 637 (1984). We have previously held that the person in charge must be served. American S&L Assn. v. Enfield, Judge, 261 Ark. 796, 551 S.W.2d 552 (1977). It was almost undisputed that the person in charge of appellee’s office was not served with process.

Having found the appellants failed to comply with the mandatory provisions of Ark. Stat. Ann. § 27-347, it is not necessary to discuss the other points relied on for reversal.

Affirmed.


text:
    FORD MOTOR CREDIT COMPANY v. The Honorable Judith ROGERS, Chancellor, Pulaski Chancery Court, Third Div.
    84-290
    685 S.W.2d 145
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985
    [Rehearing denied April 1, 1985.]

      Griffin Smith and W.R. Nixon, Jr., P.A., for petitioner.

      Steve Clark, Att’y Gen., by: Kay J. Jackson Demailly, Asst. Att’y Gen.; and Boswell, Smith ¿r Clardy, by: David E. Smith, Joseph L. Tresp, and Meredith Wineland, for respondent.
   Robert H. Dudley, Justice.

Amendment 60, which amended Article 19, § 13 of the Constitution of Arkansas, became effective on December 2,1982. On July 11,1983, this court interpreted Amendment 60 as having a two-fold limitation on the maximum amount of interest a lender can charge on a consumer loan or credit sale — the lesser of 17% or 5% over the Federal Reserve Discount Rate. Bishop v. Linkway Stores, 280 Ark. 106, 655 S.W.2d 426 (1983). A petition for rehearing was denied on September 12, 1983. Petitioner, Ford Motor Credit Co., interpreted Amendment 60 as permitting a maximum of 17% interest on consumer contracts and purchased thousands of installment contracts bearing the 17% rate between December 2, 1982 and July 11, 1983. A March 4, 1983 contract between Plaintiff, Ross Nesheim, and Union Lincoln Mercury in Little Rock provided for the purchase of a used 1979 Mercury Marquis automobile to be financed at 17% annual percentage rate. According to the decision, the maximum lawful annual percentage rate was 13.5%, which was the 8.5% Federal Reserve Discount Rate plus 5%. On September 14, 1983, two days after the petition for rehearing was denied, petitioner notified Nesheim and 6,000 other customers of our ruling of Ford Motor Credit’s intention to correct the contract to comply with the ruling. On October 25, 1983, Ford Motor Credit sent a follow-up letter advising that the change lowered the annual percentage rate, balance due, and the monthly payment amount.

On October 25, 1983, Nesheim filed his complaint for a class action under ARCP 23 against petitioner to recover Amendment 60’s penalties on his contract and on the contracts of all other consumers similarly situated. Petitioner, Ford Motor Credit, asserted that ARCP 23 could not be constitutionally applied to allow this case to be maintained as a class action. On October 16, 1984, the chancellor ruled that common questions of law or fact predominated, that a class action was superior to other forms of relief, and granted the request for class certification under ARCP 23.

Ford Motor Credit Co., pursuant to Rule 29(l)(f), seeks a writ of prohibition directed to the trial court. It contends, that, in cases which involve a class based on separate claims with common questions of law or fact, the chancery court does not have authority to certify this case as a class action because ARCP 23 cannot be constitutionally applied since it fails to provide for mandatory notice to class members which, it argues, offends due process. We hold that petitioner has no standing to question the constituionality of ARCP 23 and, accordingly, we decline to issue the writ.

Those persons who have allegedly been denied due process are those absent class members who will receive directory rather than mandatory notice of the action. Their right to due process is a personal right, and it may not be asserted by their adversary, Ford Motor Credit Co. In Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981), we wrote:

Constitutional rights, including the guarantee of due process, are personal rights and may not be asserted by a third party. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), and Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed.2d 1586 (1953). A very narrow exception exists where the issue presented to the court would not otherwise be susceptible of judicial review and it appears that the third party is sufficiently interested in the outcome that the rights of the other party would be vigorously asserted and, thus, adequately represented. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510(1965).

This petition does not fit within the narrow exception set out above because the issue of due process can be raised later by the absent class members. In the event the class loses at the trial on the merits, an absent class member can contend that the judgment on the merits is not entitled to res adjudication effect because of the directory, rather than the mandatory, notice provision of ARCP Rule 23.

Writ denied.

Newbern, J., not participating.