author: David Newbern, Justice.

text:
    Earlene TREAT v. Dr. Donald KREUTZER
    86-181
    720 S.W.2d 716
    Supreme Court of Arkansas
    Opinion delivered December 15, 1986

      The McMath Law Firm, P.A., by: Phillip H. McMath, for appellant.

      Bassett Law Firm, by: Dale Garrett, for appellee.
   David Newbern, Justice.

This is an action brought by Earlene Treat, the appellant, against Dr. Kreutzer, the appellee, for medical injury resulting from an alleged misdiagnosis which occurred in 1976. The action was brought in 1985, and the appellee moved to dismiss on the basis of Ark. R. Civ. P. 12(b) (6), contending the complaint failed to state facts upon which relief could be granted because it showed on its face that the two-year statute of limitations had run.

After refusing the request of the appellant for an order requiring the appellee to submit to an oral deposition in which the appellant hoped to establish that the statutory limitation period had been tolled by fraud, the court granted the appellee’s dismissal motion.

The appellant contends it was error for the court to have refused an order to require the appellee to submit to a deposition and that we should apply the “discovery rule” to the effect that the statute of limitations was tolled until 1984 which was when the appellant discovered the alleged medical injury. We find no error in the refusal to require discovery where the complaint is, on its face, fatally deficient, and the statute, as previously intepreted by us, precludes application of the discovery rule in this case. Thus, we must affirm on both points.

1. The deposition order

In support of her contention that she should have been allowed to take the appellee’s deposition, the appellant cites Means v. Wilson, 522 F.2d 833 (8th Cir. 1975), to the effect that the purpose of a complaint is merely to put the defendant on notice of the claim. We specifically rejected the theory of notice pleading in Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981), noting that, unlike the comparable federal rule, Ark. R. Civ. P. 8(a) requires a statement of “facts showing the pleader is entitled to relief.”

Next, the appellant cites Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), for the point that F.R.C.P. 26(b)(1) permits discovery of any matter that bears on or that could reasonably lead to other matters that bear on the issues in, or that may be in, the case. The appellant wanted to take the appellee’s deposition in the hope of being able to amend her complaint to raise the issue of fraud. We have held that a complaint alleging facts showing a fraudulent concealment of medical injury is sufficient despite the fact that it was filed more than two years after the alleged injury occurred because fraudulent concealment tolls the statute of limitations. Jones v. Central Arkansas Radiation Therapy Institute, 270 Ark. 988, 607 S.W.2d 334 (1980).

The main distinction between this case and Jones v. Central Arkansas Radiaiton Therapy Institute, supra, is the appellant’s failure to state facts showing fraud. If we were to hold that despite this deficiency in the complaint the appellant could use discovery to find facts to state in an amended complaint so as to demonstrate fraud, we would virtually overrule Harvey v. Eastman Kodak Co., supra. A pleader then would be required only to give notice by a complaint, invalid on its face, that a claim may exist, and discovery could be used to ascertain whether it does or not. While we are mindful of the criticism of this tack we have taken in our rule and in our cases, see H. Brill, Faculty Note, 34 Ark. L. Rev. 722 (1980), our precedent is clear, and we will follow it.

2. The discovery rule

Ark. Stat. Ann. § 34-2616 (Supp. 1985), in pertinent part, is as follows:

All actions for medical injury shall be commenced within two (2) years after the cause of actions [action] accrues. The date of the accrual of the cause of action shall be the date of the wrongful act complained of, and no other time, except that where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such two-year period, the action may be commenced within one (1) year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier. . . .

The appellant contends the statute of limitations does not bar the action because her claim was filed within two years of the time she discovered that the appellee had misdiagnosed her condition thus causing her medical injury. The allegation is that a tumor tissue biopsy showing the appellant had cancer was examined by the appellee in 1976. His report showed the tumor was benign. In 1984 the appellant was hospitalized. The biopsy slide taken in 1976 was allegedly examined by another physician who stated the 1976 slide showed malignancy.

The appellant’s argument that this was a continuing tort and that the statute of limitations does not bar her claim if she filed it within two years of discovering the wrongdoing of the appellee is answered specifically in our opinion in Williams v. Edmondson, 257 Ark. 837, 520 S.W.2d 260 (1975). There the allegation was that the physician appellees had misread an X ray. As to one of the doctors, Dr. Edmondson, there was a close factual question whether the statute of limitations had run before the action had commenced. As to the other, Dr. Ward, it was clear that the action was not commenced until more than two years after he allegedly misread the X ray. We reversed and remanded the case because the trial court erroneously ruled the statute of limitations had run with respect to vicarious liability Dr. Ward may have had for the acts of his partner, Dr. Edmondson. However, we answered the contention that the statute had not run as to the direct liability of the doctors because the action was clearly commenced within two years after the alleged wrongful conduct was discovered by the appellant. We pointed out that although we had at one time held that the statute of limitations was tolled until the patient discovered medical injury, we had not so held since the medical injury statute of limitations was amended by Act 135 of 1935 to say the cause of action accrues at the date of the wrongful act complained of and no other. We also noted there was nothing in the complaint showing fraud. We said:

The continuing tort theory best addresses itself to the General Assembly who has the responsibility for establishing the public policy on that issue. Needless to say the only thing alleged is that the appellees were negligent in reading the X-rays and that they were thereafter filed away. Thus by the allegations, the wrong, if any, was completed at the time of the reading. [257 Ark. at 848 and 849, 520 S.W.2d at 267.]

The misreading of the tissue biopsy in this case is completely analogous to the misreading of the X ray in Williams v. Edmondson, supra.

We are aware of the very respectable authority to the effect that a statute such as § 34-2616 which says the discovery rule applies to cases in which a foreign object is left in a patient’s body but not to other medical injury allegations is unconstitutional because it is a denial of equal protection of the laws. E.g., Austin v. Litvak, 682 P.2d 41 (Colo. 1984); Frohs v. Greene, 253 Or. 1, 452 P.2d 564 (1969). Cf. Allrid v. Emory University, 249 Ga. 35, 285 S.E.2d 521 (1982). As that issue is not before us, we leave it for future consideration.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jimmy L. SUMMERS v. STATE of Arkansas
    720 S.W.2d 313
    Supreme Court of Arkansas
    Opinion delivered December 15, 1986

      Jim Petty, for appellant.
    No objection.
   Per Curiam.

Appellant, Jimmy L. Summers, by his attorney, has filed for a rule on the clerk.

His attorney, Jim Petty, admits that the record was not tendered properly due to a mistake on his part.

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

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


author: Jack Holt, Jr., Chief Justice.

text:
    Seymour Jameel ABDULLAH v. STATE of Arkansas
    CR 86-123
    720 S.W.2d 902
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986
    [Rehearing denied February 16, 1987.]

      Thomas M. Carpenter, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Seymour Jameel Abdullah, a/k/a Seymour F. Cotton, Jr., filed a petition for Rule 37 relief from the revocation in 1974 of his suspended sentence. In his petition he argued that the court which revoked his suspended sentence had no jurisdiction to order him to serve that sentence consecutively to a separate sentence from another county. The trial court denied the petition. It is from that order that this appeal is brought. We affirm.

September 9, 1969, Abdullah pled guilty in Cross County Circuit Court to burglary and grand larceny. The trial judge imposed a fifteen year sentence which was suspended, conditioned on good behavior.

Abdullah committed armed robbery in St. Francis County, Arkansas, on January 5,1973, and was sentenced on August 23, 1973 to 28 years imprisonment. On July 20 of that year, a petition to revoke the fifteen year suspended sentence was filed. That petition was granted on February 5, 1974, and Abdullah was ordered to serve the fifteen years consecutive to the twenty-eight year sentence imposed in St. Francis County for the armed robbery.

In July of 1977, Abdullah filed a “Motion to Have Sentence Thrown Out Or In Alternative Consolidated With a Current Sentence from Another County” which is not in the record, but apparently was treated as a Rule 37 petition. The order, which is in the record, denied relief pursuant to Rule 37.3(a). No appeal was taken.

Abdullah filed a Rule 37 petition on October 26,1982, which was denied on November 10 because it was filed more than three years from the date of commitment which is prohibited by Rule 37.2(c). A notice of appeal was filed but the appeal was never perfected.

Another Rule 37 petition was filed by Abdullah pro se on January 30, 1986, which was denied February 5 on the grounds that it too was filed more than three years after the commitment. A notice of appeal was filed on February 24,1986. The trial judge entered an amended judgment and commitment on April 30, 1986 nunc pro tunc to February 4, 1974 which held that the suspended sentence ran from the date of judgment, not the date of revocation, and gave appellant credit for the four years, four months and twenty four days that had passed between the date of judgment and the date of revocation.

In this appeal, Abdullah contends that the trial court had no jurisdiction to order that the St. Francis County sentence run consecutively to the revoked Cross County suspended sentence. That is not what the trial judge directed. The trial judge actually ordered:

... the Clerk of the Court be and is hereby ordered and directed to issue penitentiary commitment committing said Defendant to the Arkansas Department of Correction for a term of fifteen (15) years; it is further ordered that said sentence be served consecutive to the sentence presently being served by the Defendant in St. Francis County Circuit Court, Criminal Division, Cause No. 8175.

Appellant was already serving the St. Francis County sentence when the Cross County sentence was revoked. It was the Cross County sentence which was ordered served consecutively to the St. Francis County sentence.

Nevertheless, the question of whether two separate sentences should run consecutively or concurrently lies solely within the province of the trial court. Graham v. State, 254 Ark. 741, 495 S.W.2d 864 (1973); Ark. Stat. Ann. § 41-903 (Repl. 1977). Given that discretion, there is nothing on the face of this judgment and commitment that makes it appear illegal.

Abdullah contends that because the manner of imposing the suspended sentence was illegal, it is subject to being corrected at any time, citing Ark. Stat. Ann. § 43-2314 (Supp. 1985). That statute provides that a circuit court may, upon receipt of a petition by an aggrieved party, take certain corrective action. The statute refers to an “illegal sentence,” which may be corrected at any time, and to a sentence illegally imposed, which may be corrected within 120 days after it was imposed or within 120 days after specified action has been taken by an appellate court. The reference to an illegal sentence evidently means a sentence illegal on its face. Otherwise a sentence might be attacked on the basis of some underlying reason many years later, after the necessary testimony was no longer available. Abdullah’s sentence did not appear to be illegal on its face. Accordingly, Abdullah’s remedy under the statute he cites was to petition the court for relief within 120 days of sentencing. This statute was not in effect when Abdullah was sentenced, however, so this remedy was not available and he is therefore not entitled to challenge his sentence now.

Abdullah’s petition was filed pursuant to Rule 37. Rule 37.2(c) provides that a petition claiming relief under this rule must be filed within three years of the date of commitment, unless the ground for relief would render the judgment of conviction absolutely void. Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981). For the reasons stated, we find Abdullah’s conviction was not void and therefore his petition, which was filed in 1986, twelve years after the sentence was imposed, was not filed in a timely manner.

Appellant argues that since Rule 37.2(c) was not amended to provide for the three year limitation until 1978, that applying this rule to him would violate the ex post facto prohibition. See Weaver v. Graham, Gov. of Florida, 450 U.S. 24 (1980). Although the three year limitation was not in effect when appellant was sentenced, his action was not timely filed even if we allowed him three years from the date the rule was amended in 1978. See Locklear v. State, 290 Ark. 70, 716 S.W.2d 766 (1986). The petition was properly denied on this basis by the trial court.

Affirmed.


author: George Rose Smith, Justice. David Newbern, Justice,

text:
    Robert M. EUBANKS, III, Insurance Commissioner, et al. v. NATIONAL FEDERATION STUDENT PROTECTION TRUST, et al.
    86-58
    721 S.W.2d 644
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986
    [Rehearing denied January 26, 1987.]

      Legal Division of the Arkansas Insurance Department, by: David B. Simmons, for appellant.

      Howell, Price, Trice, Basham & Hope, P.A., by: William H. Trice, III, for appellee.

      Glaze, J., not participating.

   George Rose Smith, Justice.

The principal appellee, National Federation Student Protection Trust, is an association whose membership includes local schools in Arkansas and throughout the United States. The Trust annually offers an accident insurance program to its member schools, with students and school employees being eligible for the insurance. On July 19, 1985, after some preceding correspondence, an attorney in the State Insurance Commissioner’s office wrote a letter to the Kansas insurance agency which administers the insurance program, stating that the Trust’s program would not be in compliance with the Arkansas Insurance Code until the group policy and certificates had been approved by the Insurance Department.

Upon receipt of that letter the Trust, without resorting to its administrative remedy before the Commissioner, filed this suit to enjoin the Commissioner from interfering with the Trust’s sale of the insurance in Arkansas. The other plaintiffs are the Chicago insurance company that writes the master policy, the Kansas insurance agency, and the Nashville, Arkansas, insurance representative who travels the state selling the plan to school districts. The complaint was filed four days after the July 19 letter. It states a variety of grounds for injunctive relief, one being that the Commissioner’s Bulletin 15-81, on which the attorney’s letter was based, is arbitrary and capricious. On the day the complaint was filed the chancellor signed an ex parte temporary restraining order which, after the case had been tried, was made final by the decree entered on November 26, 1985. The Commissioner’s appeal was filed in this court under Rule 29(l)(c).

The Commissioner makes two arguments for reversal, but we need discuss only his first point, that the chancellor erred in finding the Bulletin to be arbitrary and capricious. We emphasize at the outset that the plaintiffs, though having the burden of proof, offered no evidence to support their allegation of arbitrariness and capriciousness. No one from the Commissioner’s office, for example, was called to explain the basis for the Bulletin. The defendants did not supply the deficiency. Consequently the trial court’s ruling in effect declared that the Bulletin is invalid on its face. We cannot agree with that conclusion.

The Bulletin provides that if the parent pays the entire premium, a student accident plan cannot coordinate benefits with other insurance or declare itself to be “excess,” that is, applicable only to the extent that a claim is not covered by other insurance. The Bulletin goes on to provide that if the school and the parent both pay part of the premium, the benefits can be coordinated. Finally, if the school pays the entire premium, “the plan can be anything,” including being excess insurance. The chancellor’s decree recites that the Commissioner’s classification according to who pays the premium is capricious and arbitrary, because the insured has the same expectation of benefits regardless of who pays the premium.

The facts about the insurance plan are simple. The Trust annually obtains a basic policy and makes the coverage available to its member schools. The Trust itself pays nothing to the insurance company and receives no commission. The Arkansas representative sells the plan to school districts. He testified that in 1984 his gross premium income was between $500,000 and $600,000, on which he receives a commission. The insurance company or its agency provides the school districts with information about the coverage and furnishes printed handbills, often called flyers, which are distributed to the children with instructions to take the flyers home to their parents. The flyer used in this instance provided a parent with basic information about the insurance, including a statement that it was excess coverage.

On the facts before us it is evident that Bulletin 15-81 was issued as a consumer-protection measure. Our Insurance Code contains various provisions for the protection of purchasers of insurance. For instance, the Code prohibits misrepresentations made to obtain insurance business, Ark. Stat. Ann. § 66-3015 (Repl. 1980), prohibits excessive premiums, § 66-3023, and broadly authorizes the Commissioner to make reasonable rules and regulations to aid in putting the provisions of the Code into effect. § 66-2111. One of the Commissioner’s responsibilities has been to safeguard the interest of consumers who buy insurance.

We think it plain that the Commissioner was acting within his authority in seeking to protect the parents in the present situation. We do not imply that the coverage offered through the Trust in 1985 was not a good value, but the area is undeniably one in which scrutiny is proper. Whatever premiums the insurance company is to receive must be paid by the school district, by the parents, or by both. Our school districts perennially operate on tight budgets. When the school board, composed of elected citizens, decides to spend school funds for the insurance of school children, parents may reasonably assume that the outlay is prudent, whether the district pays all or only part of the premium. But the situation is vastly different when the parent pays all the premium himself without the school board’s having committed its own funds. Here the parent sees only the flyer, which has a semblance of official sanction by reason of having come from the public school. Accident coverage for a student during school time is $ 12 a year, which might very well seem to be a bargain, and so it might have been. But the July 19 letter to the Trust, which was attached as an exhibit to the complaint, not only referred to the group policy and the certificates but went on to say: “In view of the Department’s previous problems with the advertisement material used by representatives of the [Trust], the Department is requesting that all solicitation material be filed for approval.”

The standard for judicial review of administrative action is that the action will be regarded as arbitrary and capricious only where it is not supportable on any rational basis. Partlow v. Ark. State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980). In the field of equal protection, a classification is not arbitrary if it rests upon a difference having a fair and substantial relation to the purpose of the measure. Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W.2d 184 (1974). The burden of showing that a rule has no rational basis is on the party challenging the rule. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). The plaintiffs did not sustain that burden; they did not even attempt to. The Commissioner’s Bulletin is not invalid on its face, which in the absence of proof concludes our inquiry.

Reversed.

Newbern, J., dissents.

David Newbern, Justice,

dissenting. Many Arkansas schools belong to the Arkansas Activities Association. The Association is a member of the National Federation Student Protection Trust. The Trust offers accident insurance programs to its members, thus students attending schools belonging to the Association become eligible for the insurance. The insurance policy is issued by All American Life Insurance Co. to the Trust at the Trust’s place of residence, Missouri. The Trust issues certificates of insurance to the participating schools.

A question arose as to the propriety of this insurance plan, and in August, 1985, Arkansas insurance officials began informing the schools that the Trust was not authorized to sell the insurance in this state. The reason ultimately given was that the coverage was only “excess” coverage and that if the parents of the students paid the premiums, neither “excess” coverage nor any kind of apportionment of coverage would be allowable. “Excess” coverage means that the insurer pays only that portion of covered expenses which is not covered by another insurer.

The insurance commissioner’s policy is expressed in his Bulletin No. 15-81, entitled Guidelines for Student Accident Plans. The bulletin says (1) if the parent pays the entire premium, the policy will be treated as an “individual policy,” and benefits may not be coordinated, reduced or limited to “excess” only coverage, (2) if the school pays part of the premium ánd the parent pays part, then the plan is considered a group plan and coordination of benefits may occur, and (3) if the school pays the entire premium, then the plan may “do anything,” including “be excess,” as long as the contractual language, presumably of the insurance agreement, is followed.

The Trust and the other appellees, the insurer and agents, sought and received a permanent injunction barring the appellant, Eubanks, who is the Arkansas Insurance Commissioner, from interfering with the sales of the insurance. The chancellor found that the classification contained in the bulletin, based on who pays the premium, was arbitrary and capricious. He also ruled that the certificates of insurance would be submitted to the commissioner but that they would not be disapproved if they were in compliance with the terms and conditions of the policies approved by the insurance department in the state where they were issued.

The commissioner raises two issues on appeal. First, he contends it was error to find his bulletin’s provisions to be arbitrary and capricious. Second, he contends it was error to limit review of the insurance certificates issued pursuant to group policies by out of state insurers to consideration of matters of form and their accuracy in reflecting the terms and conditions of the group policy. We should affirm on both points, and this opinion will address both although the majority opinion only considers the former.

1. Bulletin No. 15-81

The commissioner states that the bulletin is based on his Rule and Regulation 21 which also says when the parent pays the premium for school accident coverage “the benefits cannot be reduced.” The commissioner argues, however, that his position in this appeal is based on neither the bulletin nor the rule but upon legislation. He cites Ark. Stat. Ann. § 66-3710 (Supp. 1985) which provides:

This Act [§§ 66-3709 — 66-3711] shall be applicable to all group contracts of disability insurance sold, delivered or issued for delivery, renewed, or offered for sale in this State, including those issued by Hospital and Medical Service Corporations, except group contracts for employees whose employer pays 100% of the premiums.

The commissioner then contends that this section makes § 66-3709 (Supp. 1985) inapplicable to policies where an employer pays 100% of the premium. Section 66-3709(1) provides that group disability policies sold in Arkansas may not provide for reduction in benefits “because of the existence of other insurance except to the extent that the aggregate benefits with respect to the covered medical expenses incurred under such contract and all other like insurance with other insurers exceed all covered medical expenses incurred.” Section 66-3709(2) provides that no group disability policy sold in Arkansas “shall provide for reduction in the amount of such disability benefits payable to the insured to the extent of and because of the existence of other such coverage, unless the policy provides a minimum of fifty ($50) dollars per month.”

The classification found objectionable by the chancellor is not the one found in this legislation. The problem is not the identification of which group plans may coordinate benefits and the circumstances under which they may do so. Rather, the problem created by the bulletin is the exclusion of any student accident plan in which the insured (parent) pays 100% of the premium from consideration as a group plan. As the appellees point out, not only does the legislation relied on by the commissioner not address this question, but there is no legitimate basis for holding that, for example, where an employee has a disability insurance premium withheld from his paycheck his insurer may be considered a participant in a group plan but the insurer of a parent who sends the premium to a participating school may not. In this case we are not even dealing with employers’ and employees’ group policies. Here we are concerned with a student accident plan which is clearly a group insurance policy. We are considering whether a regulatory bulletin which goes far beyond the applicable statutes, §§ 66-3709(1) and 66-3709(2), and is in conflict with them, is arbitrary.

In short, the commissioner has given us no creditable reason to reverse the chancellor’s determination that the classification espoused in Bulletin 15-81 is arbitrary and capricious. We initially accept as correct the decision of the trial court, and the burden is on the appellant to convince us otherwise. Dildine v. Clark Equipment Co., 285 Ark. 325, 686 S.W.2d 791 (1985); Bostic v. Bostic Estate, 281 Ark. 167, 662 S.W.2d 815 (1984).

In addition I believe the bulletin not only improperly avoids application of § 66-3709 to some group policies but that it is indeed arbitrary on its face. If a regulatory bulletin provided that an orange would be treated as an orange when purchased by a school lunchroom but would, in order to avoid certain legislation applicable to all oranges, be characterized as an apple in any case where the parent sent the lunch money, surely we could detect arbitrariness in the bulletin. No amount of consumer protectionist rhetoric can remove that sort of arbitrariness. Consumers and the public in general would be better served if this case were affirmed and the commissioner and the general assembly were made to face up to the deficiencies in the insurance code which the commissioner should not have to, or be allowed to, circumvent by issuing a magic regulatory bulletin.

2. Review of certificates

The commissioner’s argument on this point has two parts. He contends that the chancellor erroneously limited the insurance department’s review of certificates delivered to Arkansas persons insured under an out of state group policy because, (1) legislation gives the commissioner authority which is not so restricted and (2) the state has the authority thus to regulate such certificates.

The general powers and duties of the Arkansas Insurance Commissioner as head of the Arkansas Insurance Department are prescribed in Ark. Stat. Ann. § 66-2110 (Repl. 1980). They are: to enforce the insurance code, to exercise powers reasonably implied by the code as conferred upon him, and to investigate as expressly authorized and as he may deem proper “to determine whether any person has violated any provision of this code or to secure information useful to the lawful administration of any such provision.” Ark. Stat. Ann. § 66-2111 (Repl. 1980) provides in part:

(1) The Commissioner may make reasonable rules and regulations necessary for or as an aid to the effectuation of any provision of this code. No such rule or regulation shall extend, modify, or conflict with any law of this State or the reasonable implications thereof. . . .

The commissioner thus has no powers except those provided in the insurance code and those reasonably implied by the code.

There is a debate abroad about whether the insurance authorities of one state may indirectly regulate the issuance and provisions of insurance policies issued in another state by regulating such matters as sales of group coverage and issuance of certificates to the citizens of the state wishing so to regulate. See 19 J. Appleman, Insurance Law and Practice, §§ 10341 and 10342 (1982) and Annot., 72 A.L.R. 2d 695 (1960). The Arkansas commissioner argues he should be allowed to regulate in the case before us now by disapproving the certificates issued by the Missouri insurer so as to protect Arkansas citizens, and that the Missouri insurer has only to issue an “Arkansas rider,” bringing the policy in line with the Arkansas code as it covers Arkansas citizens, to avoid disapproval.

I need not discuss the conflicts of law or state power issue of the authority of the Arkansas Insurance Commissioner to perform this indirect regulation of the Missouri group policy upon which the certificates being considered here are based, for there is no statutory authority for the commissioner to disapprove a group insurance certificate on the basis that its underlying policy provides only “excess” coverage.

The commissioner cites Ark. Stat. Ann. § 66-3209 (Supp. 1985) which, in part, requires that group insurance certificates, which are to be delivered by an out of state insurer to insured persons in Arkansas, be filed with and approved by the commissioner. Section 66-3210 (Supp. 1985) then provides:

The commissioner shall disapprove any form filed under Section 276 [§ 66-3209], or withdraw any previous approval thereof, only if the form:
(1) Is in any respect in violation of or does not comply with this code.
(2) Contains or incorporates by reference, where such information is otherwise permissible, any inconsistent, ambiguous, or misleading clauses, or exceptions and conditions which deceptively affect the risk purported to be assumed in the general coverage of the contract.
(3) Has any title, heading, or other indication of its provisions which is misleading.
(4) Is printed or otherwise reproduced in such manner as to render any provision of the form substantially illegible or not easily legible to persons of normal vision.
(5) Is an individual disability contract in which the benefits are unreasonable in relation to the premium charged.
(6) Provided, upon the petition of an insured under a general liability insurance policy, if a substantial restriction of coverage previously provided in such policy is deemed by the insurance commissioner to be detrimental to the best interest of the public, such policy form may be disapproved. . . .

The chancellor based his decision to limit the commissioner’s disapproval of the certificates to those not accurately reflecting “the terms and conditions of policies filed with and approved by the insurance department in the state where issued” upon his conclusion that § 66-3210 “deals primarily with ambiguous, misleading clauses, deceptive language or illegible type.” The commissioner argues his power to disapprove may not be so diminished because subsection (1) permits him to determine compliance with “the code.”

The commissioner’s argument thus is that by the power to see to it that the certificates comply with the code the statutory requirements applicable to group policies generally may be applied to those issued out of state and subject to regulation also in the state where they are issued.

In Standard of America Life Insurance Co. v. Humphreys, 257 Ark. 681, 519 S.W.2d 64 (1975), we held that a certificate of insurance issued to an insured by a group insurer is not a policy of insurance but is only evidence of what the policy contains. Given this clear distinction between insurance policies and insurance certificates, my view is that § 66-3210(1) gives the commissioner the authority to disapprove a certificate if it conflicts with any provision of the code pertaining to certificates as opposed to the provisions pertaining to insurance policies. The commissioner has no statutory authority to force, in effect, the terms of an out of state group disability policy to comply with the code’s policy requirements by wielding the disapproval power over certificates issued in this state. We have been cited to no statutes specifically regulating certificates of insurance, as opposed to insurance policies, except for §§ 66-3209 and 66-3210. Here again, the code may need revision, but we cannot do it.

While the chancellor’s conclusion that these sections limit the commissioner’s review of certificates essentially to matters of deception and form is supported by his reading of § 66-3210, for the sake of clarity we should modify paragraph five of his order to provide:

All American Life Insurance Company shall be required to file the certificates of such policies with the Arkansas Commissioner of Insurance and such certificates shall not be disapproved by the commissioner if they comply with the requirements of Ark. Stat. Ann. § 66-3210 (Supp. 1985).

Given the requirements of § 66-3210 aimed at misleading or deceptive forms, the chancellor’s expressed concern that the certificates accurately reflect the provisions of the policy would be met. We should take out the chancellor’s reference to the filing and approval with the insurance department in the state where issued because foreign state approval and with whom a policy is filed are matters not covered by § 66-3210.

Conclusion

The commissioner’s purposes in apparently seeking to apply the insurance code selectively and in seeking to regulate out-of-state insurance companies without statutory authority are probably praiseworthy. My reasons for making this dissenting opinion fairly detailed with respect to both points is to suggest that code revisions may be needed despite the support for the commissioner’s regulatory provisions found in the majority opinion. If the regulatory scheme continues to expand beyond statutory authority, surely the time will come when a majority of this court will put down its collective foot.


author: George Rose Smith, Justice.

text:
    Connie A. CANADY v. James Ray CANADY
    86-108
    721 S.W.2d 650
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986

      Mark Cambiano, and Dale Lipsmeyer, for appellant.

      Stripling & Morgan, by: Dan Stripling, for appellee.
   George Rose Smith, Justice.

For the second time this divorce case comes to this court, our first opinion being reported as Canady v. Canady, 285 Ark. 378, 687 S.W.2d 833 (1985). All issues except the property division were determined at the trial level. Rather than trying to decide property questions without the chancellor’s having made the required specific findings, we found it necessary on the first appeal to remand the case for a retrial of the property issues. Each party testified at length and called other witnesses at the retrial. We now have before us a complete presentation of the facts. Every important issue was treated in the chancellor’s final decree. Later that decree was promptly carried into effect by a public sale of all the marital property. Left for us to decide are the appellant’s three arguments for reversal, all presenting essentially questions of law.

The questions all turn upon the construction of our comparatively new marital-property law. Ark. Stat. Ann. § 34-1214 (Supp. 1985), A few background facts are needed. Both parties had been previously married and owned substantial properties when they began living together in 1974. At that time James Canady owned a one-third interest in a 123-acre tract which was being used for the operation of a profitable dairy having at times 50 or more milch cows. The other two-thirds interest was owned by James’s two daughters, but they had no part in the operation of the dairy. James also had a one-sixth interest in what was to become the parties’ homeplace, a 101-acre parcel at Bee Branch. James had inherited his one sixth; the rest went to his brothers and sisters. Before James’s marriage to Connie in 1976 he bought the other siblings’ five-sixths interest. The deed was made to him, subject to a substantial lien in favor of a third-party lender for the unpaid purchase money. James was primarily a truck driver, owning his own truck and making “good money” from long and short hauls.

Connie brought no real property into the marriage, but she had received, from her first husband and from a fire loss, money and other personal property which our first opinion estimated at $150,000. Eventually she contributed about all of it to the marriage, using it for living expenses, for improving the dwelling, for payments on the homeplace debt, and for the purchase of a 20-acre tract on which the parties installed a carwash. She testified that she and James lived well, that they had a nice home, and that she had expected it to be their home for the rest of their lives. She also testified that James took to drinking too heavily, resulting in her filing this suit for divorce in 1983. James denied the charges of drunkenness. The divorce was granted to Connie, for general indignities.

Two of the appellant’s arguments do not require extended discussion. The first argument is that the chancellor should have held that Connie has a separate non-marital property interest in the 20-acre tract and in the truck used by James in his business. As to the 20-acre tract, it was purchased during the marriage with Connie’s premarital funds, but the deed conveyed the property to James and Connie as husband and wife. We have held that our marital-property law does not apply to tenancies by the entirety. Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981). The chancellor correctly ordered that the tract be sold and the proceeds divided equally. As to the truck, James testified that during the marriage he had the motor rebuilt at a cost of $5,000. Connie now argues that since he did not show that the five thousand dollars was not marital property, the chancellor should have returned the truck to James as premarital property only with a stipulation in the decree that Connie be reimbursed for her contribution of half the renovative expense. To answer this argument we need not explore the complicated question of when and to what extent a contribution of marital property to the improvement of non-marital property should be considered in the return of the non-marital asset upon divorce. This truck was used in the husband’s business. Whatever income that business produced presumably went back into the marriage. For obvious reasons we cannot establish a rule that whenever either spouse uses family funds for business purposes, the other is entitled to an accounting upon divorce.

The third and principal argument presents the important issue in the case. Much of Connie’s testimony, supported by deposit slips and the like, showed that she contributed all or nearly all of her non-marital assets to the marriage, for living expenses, for the purchase of the 20-acre tract, for extensive improvements to the homeplace, and for the payments upon the debt secured by the homeplace. Like most married couples, neither spouse kept records during their six-year marriage. Connie testified repeatedly that she was unable to say just how her many contributions were spent. She also worked in the dairy business, but her efforts there were offset by James’s work as a truck driver and need not be separately treated.

Connie argued in the trial court, as she does here, that even without any specific tracing of funds she should be repaid in some amount for her contributions. The chancellor addressed this issue in the final decree, as follows:

4. Throughout the course of the marriage, Plaintiff, Connie Canady, had access to very large sums of money. The Court has endeavored to trace these amounts of money. It is impossible to do so. The fact that Plaintiff had access to large sums of money does not establish that Plaintiffs funds were used in the dairy operation. However, Plaintiff has established that significant contributions, Thirty Five Thousand One Hundred Fifteen Dollars ($35,115.00), went into the purchase and improvement of other real property obtained by the parties and by Mr. Canady.

The chancellor did not order, as the plaintiff asked him to order, that the $35,115 contribution be specified as a preferred claim against the proceeds from the sale of the homeplace, which was the only real property sold except for the 20-acre parcel. Instead, the chancellor ordered that the homeplace be sold, that from the proceeds the lien (about $60,000) be discharged first, that James receive his non-marital sixth of the proceeds, and that the remaining five sixths be divided equally. The homeplace in fact sold for $126,000, so that Connie received about $27,000.

The chancellor’s solution of the problem was a correct one. We do not mean that he might not have properly chosen some other way of dividing the property. What we do emphasize is that the marital-property law vests in the trial court a marked measure of flexibility in apportioning the couple’s total assets.

One has only to study Section 34-1214 to realize that its overriding purpose, paramount to all other considerations, is to enable the courts to reach a decision that is equitable. As to marital property, the statute begins with the direction that all marital property be distributed equally. That division, however, is not to be made if the court finds it to be inequitable. In that event the court must make some other division, taking into consideration nine enumerated considerations: (1) the length of the marriage; (2) the age, health, and station in life of the parties; (3) their occupations; (4) their income; (5) their vocational skills; (6) their employability; (7) their estates, liabilities, needs, and future gainful opportunities; (8) “contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker”; and (9) tax consequences. A perhaps significant omission from the list is comparative fault. As to property owned before the marriage, the statute first directs that it be returned to the party who owned it before the marriage, but again the directive is subject to the same nine considerations, the final goal always being a result that is equitable. Whenever the chancellor orders something other than an equal division, he must make a statement of his reasons.

This case is similar to several others that have reached our appellate courts since the new law was enacted in 1979. That is, the parties devoted almost all their proof to the eighth consideration, contributions made by each. Unquestionably the tracing of money or other property into different forms may be an important matter, but tracing is a tool, a means to an end, not an end in itself. The fact that one spouse made contributions to certain property does not necessarily require that those contributions be recognized in the property division upon divorce. It was certainly not our intention to state an opposite point of view in Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983). We have no doubt that the tracing of funds and even the acquisition of property before the marriage or by gift during the marriage might be inconsequential when considered at the dissolution of a marriage that had lasted for many years and had left the parties with decidedly unequal means for supporting themselves in the future.

We find that the chancellor’s decree gives effect to the intent of the statute and consequently reaches an equitable result.

Affirmed.


author: Darrell Hickman, Justice. Robert H. Dudley, Justice,

text:
    Anthony Eudean WEAVER v. STATE of Arkansas
    CR 86-90
    720 S.W.2d 905
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986

      John Wesley Hall, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

The appellant, Anthony Eudean Weaver, was convicted of driving while intoxicated and sentenced to six months imprisonment, a $250 fine and suspension of his driver’s license for 120 days. The court of appeals certified this case to us, as one of first impression.

Appellant questions two decisions of the trial judge on appeal. First, the trial judge refused to allow two defense witnesses to testify because they were not disclosed to the state before trial. Second, the results of a blood alcohol test were admitted over the appellant’s objection. We find no error and affirm the conviction.

The state made a timely request for disclosure of the names of all the defense witnesses. A.R.Cr.P. Rule 18.3. The appellant did not disclose the names of two witnesses called in his defense, and the trial court refused to allow these two witnesses to testify. The appellant argues that the trial court incorrectly construed A.R.Cr.P. Rule 18.3., which provides:

Subject to constitutional limitations, the prosecuting attorney shall, upon request, be informed as soon as practicable before trial of the nature of any defense which defense counsel intends to use at trial and the names and addresses of persons whom defense counsel intends to call as witnesses in support thereof.

Appellant argues that since his defense was a general denial, the phrase “any defense” in the rule does not apply. The basis of his argument is that since the Criminal Code and the Rules of Criminal Procedure were written by the same commission, divided into two committees and adopted substantially together, they must be construed as a whole. He argues that the word “defense” is defined in the code and that definition does not include a general denial. He then concludes that we should similarly interpret the phrase “any defense” as used in the Rules of Criminal Procedure. We decline to so interpret our rule.

The commentary to Article V of the Rules of Criminal Procedure provides:

The rules which follow trace the contours of a comprehensive discovery scheme characterized by broad reciprocal pretrial disclosure aimed at expediting the criminal justice process.
Broad pretrial disclosure would seem to be not only desirable but also necessary. By encouraging guilty pleas, reducing delays during trial, and in general lending more finality to the disposition of criminal cases, disclosure alleviates docket congestion and permits a more economical use of resources.

We are still of the opinion that discovery in criminal cases, within constitutional limitations, must be a two-way street. This interpretation promotes fairness by allowing both sides the opportunity for full pretrial preparation, preventing surprise at trial, and avoiding unnecessary delays during the trial. The trial court construed our rule correctly considering its purpose.

This interpretation does not mean that genuine rebuttal witnesses must be disclosed, for neither the state nor the defense would necessarily know in advance of the need for their testimony. See Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980).

The appellant next argues that the trial court was wrong in admitting the results of a blood alcohol test because it was not shown that the test was performed pursuant to Ark. Stat. Ann. § 75-1045 (Supp. 1985). The test in this case was ordered by an emergency room physician for his own information. The trial judge admitted the test results. The appellant objected to the introduction of the test results because it was not shown that the test was conducted according to Ark. Stat. Ann. § 75-1046(b) (Repl. 1979), which requires the test to be conducted according to methods approved by the State Department of Health.

Ark. Stat. Ann. § 75-1045 governs the validity of the blood alcohol, breathalyzer or other chemical tests used to determine the alcohol in the blood or the sobriety of a person. But it does not dictate the validity of all blood tests conducted in Arkansas. The statute is limited to those tests ordered either by a police officer or a defendant in connection with a criminal charge relating to sobriety. For example § 75-1045 reads in pertinent part:

(a) (3) Such chemical test or tests shall be administered at the direction of a law enforcement officer . . . The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered. . .
(c) (1) Chemical analyses of the person’s blood. . .tobe considered valid under the provisions of this section shall have been performed according to methods approved by the Arkansas State Board of Health.
(2) When a person shall submit to a blood test at the request of a law enforcement officer under the provisions of this section. . . . Provided that no persons, . . . who withdraws blood for the purpose of determining alcohol or controlled substance content thereof at the request of a law enforcement officer under the provisions of this section. . . .
(3) The person tested may have a physician, or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete chemical test or tests in addition to any test administered at the direction of a law enforcement officer. . .
(4) Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer. . . . (Italics supplied.)

Such tests, ordered by a police officer or a defendant, must be carefully monitored to assure reliability. Newton & Fitzgerald v. Clark, 266 Ark. 237, 582 S.W.2d 955 (1979). Otherwise, their results could be manipulated to favor one side or the other in a criminal case. Therefore, a uniform set of standards must exist for all such chemical tests, which can be performed in the private office of a physician, qualified technician, registered nurse, or other qualified personnel.

This test was not ordered by a defendant or an officer of the law. It was not ordered to be used as evidence in a criminal case pursuant to Ark. Stat. Ann. § 75-1045. It was ordered by an emergency room physician for his own use in connection with his treatment of a patient. Therefore, the question was not whether the test complied with the strict procedures of Ark. Stat. Ann. § 75-1046 but whether the test results were admissible under the Arkansas Rules of Evidence, Rule 803(4). According to the doctor’s testimony, to his knowledge, the test was performed in accordance with the usual procedures for blood tests at the Baptist Medical Center, Little Rock, Arkansas, and those procedures comply with all the requirements of the State Health Department.

The trial judge found the test reliable and admitted the results. He has the discretion to make that decision. Edgemon v. State, 275 Ark. 313, 630 S.W.2d 26 (1982). Ark. Stat. Ann. § 75-1046 does not control the validity of this test. The test results were valid evidence which existed and the state should not be denied the use of the test.

The legislature did not deem it necessary to determine the validity of every blood test taken by hospitals, only those ordered by the state or the defendant to be used as evidence in a criminal case. It was not intended to be all-inclusive. See Watson v. Frierson, 272 Ark. 316, 613 S.W.2d 824 (1981). We will not read into the statute such provisions that are not expressly stated.

Affirmed.

Purtle, Dudley, and Newbern, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. I dissent from that part of the majority opinion which holds that the result of a blood test may be admitted into evidence in a D WI case even though the State did not prove that the test was performed according to the methods approved by the State Department of Health.

A part of the applicable statute, Ark. Stat. Ann. § 75-1045, is expressly in point:

(b) Chemical analyses of the person’s blood, urine, or breath to be considered valid under the provisions of this act [§§ 75-1045,75-1046,] and Act 346 of the 1957 [§ 75-1031.1] as amended, shall have been performed according to methods approved by the State Department of Health or by an individual possessing a valid permit issued by the State Department of Health for this purpose. The State Department of Health is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the State Department of Health.
(c) The State Department of Health is authorized to promulgate rules and regulations reasonably necessary to carry out the purposes of this act.

In response to the statute, the State Department of Health adopted the following regulation:

PART B. BLOOD SAMPLING
3.20 Sample Collection. Blood samples may be collected from living individuals only by persons authorized by law and by means of a sterile, dry syringe and hypodermic needle or other sterile equipment. The skin at the area of puncture shall be thoroughly cleansed and disinfected with an aqueous solution of nonvolatile antiseptic such as benzalkonium chloride (zephiran). Alcohol or other volatile organic disinfectant solutions shall not be used as a skin antiseptic or to clean hypodermic needles, syringes, or containers.

The State did not prove that the test was given in compliance with the regulation. The witness who testified about the blood alcohol test result, the emergency room physician, testified that he only learned of the test results from hospital records; he did not personally take the blood test and did not know who did; he did not know what type of equipment was used, and did not know whether an aqueous (non-alcoholic) skin preparation was used; he did not know whether Department of Health regulations were complied with; he did not know what type of test was used or whether it was approved by the Department; he did not know who analyzed the blood sample, or who entered the result into the hospital records; and he did not know whether the hospital was licensed, or exempted from licensing, for testing for blood alcohol content. The hospital technicians working at the hospital on the night of the test did not know who took the blood sample or who analyzed it; they only knew that one of them entered the result into the computer terminal. The State did not put on any evidence by the technicians about the equipment, the manner of administering the test, or licensing. In short, the State simply did not prove compliance with the regulation.

Under the express language of the statute, failure to prove compliance with the regulations prevents the test results from being considered valid, and, accordingly, should prevent the result from being admitted into evidence. However, the majority creates an exception when the test is ordered by an emergency room physician for use in treatment of his patient. In order to justify such an exception the majority opinion states that the applicable statute, Ark. Stat. Ann. § 75-1045 “does not dictate the validity of all blood tests. . . .” The majority opinion clearly ignores the express language of Ark. Stat. Ann. § 75-1045(b)(l) which provides:

Chemical analysis of the persons blood . . . to be considered valid under the provisions of this act. . . shall have been performed according to methods approved by the State Department of Health.

In addition, one of the primary purposes of the statute is to assure the public that all tests admitted into evidence can be relied upon. Newton v. Clark, 266 Ark. 237, 582 S.W.2d 955 (1979). One result of the majority opinion will be to undermine the assurance of a reliable test.

I respectfully dissent.

Purtle and Newbern, JJ., join in this dissent.


author: Darrell Hickman, Justice.

text:
    William Russell MEEKS v. Patricia Chambers MEEKS
    86-105
    721 S.W.2d 653
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986

      Gordon & Gordon, by: Allen Gordon, for appellant.

      Tom Tatum, for appellee.
   Darrell Hickman, Justice.

This is a divorce suit. Patricia Chambers and Russell Meeks were married in 1971 and have two minor children. They separated on May 1,1984, and on May 3, the appellee filed for divorce in Pulaski County, Arkansas, the parties’ residence. She dismissed the action after experiencing difficulty in obtaining satisfactory legal counsel. She refiled the suit that same day in Yell County, the home of her family. The divorce and custody of the children were not contested, only the division of the property. Extensive discovery was conducted to determine the assets of the parties and, specifically, those of appellant’s law practice. The controversy focused on whether the law firm assets, as determined by the chancellor, were marital property. On appeal five issues are raised for reversal: the increase in child support payments, the commissioner’s fee for the sale of the joint property, the interest in the law firm awarded to the appellee, credit for house payments, and the distribution of the personal property. The chancellor was wrong to increase the child support and awarded an excessive commissioner’s fee. In other respects the chancellor was not clearly wrong.

The parties either agreed, or did not contest, the valuation date of the property being September 30, 1984. The trial court entered a final decree on January 14,1985, ordering the appellant to pay $700 per month child support and establishing visitation rights. The trial court found that the appellee was entitled to one-half interest in the firm assets, including the accounts receivable and the “work in progress.” After determining the separate property of each party, the chancellor ordered the sale of the joint property, and the proceeds divided equally. The appellee purchased the law firm’s assets and the home at the public sale.

On October 28, 1985, the chancellor entered another order increasing the child support to $1,000 per month. The appellant was denied credit for house payments he made during the period of separation. This order also concerned profit sharing for 1984 and some items of personal property.

First, we consider the question of the increased child support. In the final decree entered January 14, 1985, the chancellor fixed child support at $700 per month after hearing the parties’ testimony and considering the evidence concerning the parties’ property and earning capacity. There was no hearing on a change in circumstances of the parties prior to the October 28, 1985, order, which raised child support to $1,000 per month. The only evidence before the chancellor was a petition filed by the appellee requesting the increase. The trial court only mentioned in its findings of fact that it viewed the appellant’s 1984 income tax return in its consideration of the matter.

Ordinarily, the amount of child support lies within the sound discretion of the chancellor. Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982); Gross v. Gross, 266 Ark. 186, 585 S.W.2d 14 (1979). Child support may be reviewed by the trial court at any time, even after the final decree is entered and the chancellor may modify a provision of child support to serve the best interests of the children when there are changed circumstances. Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980); Hurst v. Hurst, 269 Ark. 778, 602 S.W.2d 137 (Ark. App. 1980). But the burden is upon the party seeking an increase in child support to show a change of circumstances. Glover v. Glover, 268 Ark. 506, 598 S.W.2d 736 (1980); Riegler v. Riegler, 246 Ark. 434, 438 S.W.2d 468 (1969). There was no evidence presented to show a change in circumstances, and there was no hearing on the matter. The order increasing the child support is reversed.

The second issue concerns the fee awarded the commissioner for the sale of the assets, consisting of real and personal property. The gross sale price was $216,200. The amount of the fee awarded was $6,486. We recently held in Valley National Bank of Arizona v. Stroud, 289 Ark. 284, 711 S.W.2d 785 (1986), that the statutory allowance for a commissioner’s fee cannot be exceeded. Ark. Stat. Ann. §12-1712 (Repl. 1979) provides that a sale of $35,000 or more calls for a commission of one-tenth of one percent. The appellee concedes that the fee exceeds the amount allowed by statute but argues the objection came after the sale was confirmed. The record does not reflect that the appellant ever waived an objection to the fee. The fee is reduced to the statutory amount, which is $216.20.

The third and fourth issues are closely related. The chancellor found the appellee was entitled to one-half of the law firm assets. The appellee’s right to the law firm assets is not contested, only decisions by the chancellor concerning specific assets. The appellant questions the chancellor’s finding that the accounts receivable and “work in progress” were marital property under Arkansas’ new marital property law. Ark. Stat. Ann. § 34-1214 (B) (Supp. 1985). He argues that under Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983), the law firm’s accounts receivable are not marital property. In Potter we did say that accounts receivable might not be marital property unless there was evidence of fraud or intent to delay receipt of the property in order to exclude it from consideration in a divorce proceeding. In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), we considered our prior decisions and stated:

We now realize that we have inadvertently failed to recognize the new concept of‘marital property,’ created by Act 705 of 1979, as amended. That statute defines marital property as all property acquired by either spouse subsequent to the marriage, . . .

We were wrong in Potter to qualify the treatment of accounts receivable as marital property. The general rule is that accounts receivable are marital property.

In the first case of Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1967), decided long before the new marital property law, we held that accounts receivable belonging to a partnership were assets of the partnership and therefore subject to division upon a divorce. We determined that instead of assigning the spouse half of the accounts receivable collected in the future, or in kind, accounts receivable should be treated as having a provable fair net present value, and an award made accordingly. We affirmed this holding in Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510 (1983).

The accounts receivable totaled $20,002 as of September 30, 1984. The amount is not disputed nor is the valuation disputed, only the legal question of whether accounts receivable are marital property. The chancellor was right in holding they were marital property in this case, and the appellee is entitled to half of the value of the accounts receivable.

The next question is whether the trial court was right in finding that “work in progress” was an asset of the law firm and subject to division as marital property. “Work in progress” in this case was the firm’s hourly work that had been performed and noted but not billed. Both parties employed accountants and the firm’s books and files were scrutinized. The appellee’s accountant found a total of 980.2 hours of work that had been performed and logged but not billed as of September 30, 1984. He was of the opinion that all the “work in progress” could be billed immediately. The appellant did not dispute that his files reflected the hours of work performed, but he denied that he deliberately delayed billing those clients. In the final decree, the chancellor specifically found that the appellant had delayed billing the “work in progress” in an attempt to deprive the appellee of her one-half interest in the funds accumulated during the marriage. The chancellor ordered the appellant to bill all unbilled time.

The accountants of both parties testified about the value of the 980.2 hours which was attributed to 52 files in the appellant’s office. The appellee’s accountant placed a value on the hours at $58,812.00. In reaching this figure, the appellee’s accountant evidently gave no consideration for accounts which might not be collected. The appellant’s accountant testified that the cost to produce an hour of work was $23.63. The chancellor ordered the appellant to go through the files and determine the value of the hours, in his judgment, using $60.00 per hour. The appellant reported his findings in a detailed comprehensive report filed February 11, 1985. The appellant placed the files into four categories. The first category consisted of files that had been billed before the divorce decree was entered. The second category was files not ready for billing. The third category was files which would never be billed and had no value. The last category consisted of all other files not covered in categories one through three. The appellant concluded that the 980.2 hours were worth $41,451.40. The chancellor accepted this figure and ordered an equal division of this sum between the parties.

The appellant first argues that such work is not marital property. According to the Arkansas’ marital property statute and our decision in Day, we conclude that such “work in progress” is marital property subject to division in a divorce action. The work performed in this case would be marital property according to several courts and legal authorities. In re Marriage of Harry Rubinstein, 495 N.E.2d 659 (Ill. App. 2 Dist. 1986); Ondrasek v. Ondrasek, 126 Wis. 2d 469, 377 N.W.2d 190 (1985); B. Goldberg, Valuation of Divorce Assets § 8.3 (1984).

The appellant next argues that the chancellor improperly evaluated the unbilled time because the chancellor did not consider the firm’s cost to produce the work. The appellant argues that the value should have been reduced by a cost per hour figure of $23.63. The proper value of such an asset is ordinarily its provable fair net present value. The chancellor specifically rejected the appellant’s argument to reduce the value by the hourly cost because he found that there was a deliberate delay in billing. The chancellor stated: “I think, this may be overlooking the principle, how we applied this, Mr. Gordon. I think what we applied was, had this been billed and had it been paid, this would be a marital asset subject to division in kind.” By specifically finding that the appellant had deliberately delayed billing these hours, and consequently delaying the receipt of money that would have been collected, the chancellor treated this unbilled time differently from what is normally considered to be “work in progress.”

In other words, this property was divided on the basis of what the court found would have existed except for the appellant’s deliberate delay in billing. So this property was not evaluated the same as accounts receivable or “work in progress” should be evaluated. It was considered as property that should have existed on September 30, 1984. Accordingly, we do not reach the question of how “work in progress” should be evaluated and whether the firm’s cost must be deducted from a given figure. The chancellor essentially set the value at what the appellant thought it was worth. He heard disputed testimony about this asset and made specific findings which we cannot say are clearly wrong.

The next issue is the chancellor’s treatment of the house payments made by the appellant during the separation. At first the trial court determined that the appellant would receive credit for those payments from June, 1984 to June, 1985. Later the chancellor rescinded the order, because the appellant had possession of the house during the separation. The appellant argues that he should be credited for 35 house payments which were $859.16 per month. According to appellant’s testimony, beginning in October, 1980 and ending September, 1983, these payments were made from funds which the appellant said were his separate property. The appellant testified he owned an interest in Meeks and Associates, a limited partnership, which was a gift from his father. An automatic draw against these funds was made to a joint account to pay the monthly house payment. The appellee’s accountant testified that the house payments were made from joint funds. The appellant argues that this was his separate property which should have been awarded to him.

It was a mixed question of fact and law as to whether the house payments were made from the separate property of the appellant for which he should receive credit. It was not disputed that the residence was held jointly by the entirety. The chancellor specifically found that the funds were joint property because they were paid into a joint account and used to pay a debt on jointly owned property. He found the property had become jointly owned. The chancellor heard the testimony, examined the evidence, and concluded that the appellant had not established a right to those funds as his separate property. We cannot say this decision was clearly wrong.

Appellant next argues that the chancellor made an inequitable distribution of the personal property of the parties, dividing the law firm assets equally and ordering them sold, while awarding the household furnishings to the appellee. Ark. Stat. Ann. § 34-1214(A) (1) provides “all marital property shall be distributed Vi to each party unless the court finds such a division to be inequitable, in which event the court shall make some other division that the court deems equitable. . .” We note that reference was made in the record to the fact that the appellant took some of the household furnishings for his own, how much we cannot determine. Also the chancellor awarded the appellant any furnishings he received from his family just as he did the appellee. The court mentioned that the children needed some household furnishings. The chancellor based his distribution of their property on equitable grounds and his findings support the division. Ford v. Ford, 212 Ark. 506, 616 S.W.2d 3 (1981). In this case we do not find an abuse of discretion in the division of this personal property of the parties.

The two other arguments raised by the appellant concern (1) a bonus paid to the appellant’s law associate, and (2) an order requiring the appellant to return certain personal property. The chancellor awarded the appellee $2,130 credit for one-half of the bonus paid to the appellant’s associate in 1984. We are given sparse facts and little reason by either party as to how we should decide this issue. We cannot reverse a finding of fact by the chancellor unless it is clearly wrong. ARCP 52 (a). In this case we cannot speculate that the chancellor was wrong. Neither can we say the chancellor was clearly wrong in his order requiring the appellant to return certain personal property to the appellee. We will not presume the chancellor will arbitrarily disregard a reasonable explanation if the appellee cannot comply with all of that order.

Affirmed in part and reversed in part with directions to enter a decree consistent with this opinion.


text:
    Raymond LEONARD, et ux v. MERCHANTS AND FARMERS BANK
    86-150
    720 S.W.2d 908
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986

      L. David Stubbs, for appellant.

      Gill, Johnson, Gill & Gill, by: Brooks A. Gill, for appellee.
   Darrell Hickman, Justice.

Less than 30 days after federal legislation was passed overriding the Arkansas usury law, the Merchants and Farmers Bank of Dumas, the appellee, loaned the appellants Raymond and JoAnn Leonard $72,000 to buy 95 acres of land. A promissory note was signed for ten annual installments, and two mortgages were filed to secure the note. Two years later when the bank began charging more than ten percent per annum on the note, the appellants protested. The bank contended that the note provided for such interest. The appellants paid three years under protest. Finally they sued to cancel the note, alleging usury and alternatively to reform the note to provide for an interest rate of ten percent per annum.

The chancellor found for the bank and based his decisions on two important facts. While the face of the note was typed to read ten percent, the back of the note contained a typewritten paragraph entitled “Interest Adjustment Clause” which read:

The rate of interest shall be the amount stated on the reverse side, or (two) 2% above the New York prime interest rate, whichever is greater, with the interest to be adjusted accordingly on the 1st day of each month, but in no instance shall this note bear a rate of interest less than (ten) 10% or a rate of interest in excess of the maximum amount allowed by Arkansas law.

It was signed by Raymond Leonard. In addition Loral Adcock, the senior vice president of the bank, testified he made the loan and told Leonard he would not make a loan on land at a fixed rate. He said the only way a loan would be made long-term was at a fluctuating rate. Adcock testified he discussed this with Leonard at length before he signed this typewritten provision.

JoAnn Leonard signed the front of the note and the mortgages but did not sign the back of the note, which contained the “Interest Adjustment Clause”. She said she would have but was not asked. The chancellor granted the petition to reform to the extent the bank could not collect in excess of ten percent per annum from Mrs. Leonard.

The appellants raise three arguments: Arkansas law rather than federal law applied to this loan; the chancellor was wrong in finding this was a business or agricultural loan; and the parties intended that the note would bear interest at only ten percent per annum. Merchants and Farmers Bank cross-appeals the decision regarding JoAnn Leonard.

The appellants concede that if federal law is applied to this loan, the extra interest charged would not violate the Arkansas Constitution. However, they argue that the parties intended for Arkansas law to apply, not federal law. It is argued that if the provision of the Uniform Commercial Code which provides that parties “may agree that the law either of this state or of such other state or nation shall govern, . . .” Ark. Stat. Ann. § 85-1-105 (Add. 1961), is applied to the facts of this case, it was the parties’ intention to apply Arkansas law. The face of the note was typed to read ten percent, the mortgages read ten percent, the disclosure statement read ten percent, and the schedule of payments for ten years was figured at ten percent. This code argument was not presented to the trial court. This was not a conflict of laws question as suggested by the appellants or a commercial code question. The question was whether this was an agricultural or business loan for $25,000 or more with respect to which federal legislation permits the variable interest sought to be charged by the bank. The parties did not dispute that the annual charges never exceeded that allowed under the federal legislation, although there was a dispute as to whether the bank computed the interest correctly according to the “Interest Adjustment Clause.”

Leonard testified he was in the construction business, was not a farmer, and did not intend to farm the land; therefore, he argues the loan was not for agricultural purposes. Leonard said he considered it a personal investment. It was agricultural land, however, and Leonard did lease it to a farmer who did farm it. The chancellor made this finding:

Since the Act [Federal Public Law 96-104] does not define ‘business or agricultural loans’, the Court must give the language its plain and ordinary meaning. Worthen v. Dillard, 275 Ark. 132 (1982). Without unduly prolonging discussion of this point, the plain fact is that the loan was for the purpose of acquiring farm land. It would seem to make no difference whether farm land is to be farmed by the obligor or by some third party. In either event, it would appear to be an ‘agricultural’ loan. Similarly a loan acquired for investment purposes would seem to be included under the term ‘business’ loan. In either event, the loan was covered by the federal provisions. Consequently, the interest rate was not limited by the Arkansas constitutional provisions in effect at that time. What then, is the effective interest rate? To determine the effective interest rate, the Court must look to the manifested intent of the parties.

The chancellor heard the testimony and made a finding regarding the loan which we cannot say was clearly wrong. ARCP 52.

The appellants sought to reform the instruments to reflect the real intent of the parties, arguing that the intent of the parties was that the interest rate should be ten percent per annum. The documents were not consistent. Indeed, the bank was probably careless in its work. The bank officials explained that they were using old preprinted forms, new federal legislation had just been passed, and the officials did the best they could. But the question to the chancellor as it is to us is what was the intention of the parties. There is a rule of law uniquely suitable to this case which binds us. That is “. . . typewritten provisions prevail over printed ones, only when the two are so contradictory that one must yield to the other. . .” McKinnon v. Southern Bureau Cas. Ins. Co., 232 Ark. 282, 335 S.W.2d 709 (1960); Dow Chemical Co. v. Warmack, 281 Ark. 77, 661 S.W.2d 376 (1983).

This was the finding of the chancellor on this question:

[Appellants] suggest that in order for the Court to find the variable rate to be the effective rate, the Court must also find numerous errors in the preparation of the instruments and handling of the account. Admittedly, the federal override had been in effect about thirty days when this transaction was consummated. Admittedly, most of the information is composed of insertions into pre-printed forms of “boilerplate” language, which language had been in these type documents ‘. . . for a time whereof the memory of man runneth not to the contrary.’ Johnson v. Lewis, 2 S.W. 329 (1886). For causes not shown in the record, the bank neglected to charge interest greater than ten percent (10%) for approximately twenty-six and one-half months after the loan was made. Be that as it may, the Court is satisfied that the intent of the parties was to allow a variable rate of interest as provided in the [Interest Adjustment Clause]. Admittedly, Mr. Leonard signed that provision, although he indicated that he did not know whether the blank, evidencing the interest rate, was filled in or not. It is difficult to imagine a more effective way of bringing a matter of consequence to one’s attention than by typewritten language on the reverse side of a pre-printed form. The Court finds that the typewritten language in the [Interest Adjustment Clause] is controlling.

There are various rules of construction that could have been applied and were argued, but the chancellor applied the right one. He also had the benefit of hearing the testimony of the parties regarding their intention when the note was signed. We cannot say he was clearly wrong.

Finally, we consider the bank’s cross-appeal. In an argument without the benefit of any legal authority, the bank asks that we reverse the chancellor’s ruling that JoAnn Leonard was not liable for the interest in excess of ten percent per annum. In such cases we often decline to rule on the question, affirming the decision of the lower court. That is our judgment in this case. Ark. La. Gas Co. v. Hutcherson, 287 Ark. 247, 697 S.W.2d 907 (1985).

Affirmed.

       This question was not specifically raised or mentioned in the pleadings or arguments of the parties. The chancellor mentioned in his written opinion that the bank could not collect from Mrs. Leonard over ten percent per annum. The opinion went on to state: “The practical effect of this the court will leave for further discussion at the suggestion of counsel, if desired.” No objection was made by the bank to the court’s consideration of this question. The decree, prepared by the bank, contained a finding that the bank could not collect from Mrs. Leonard over ten percent interest.


author: John I. Purtle, Justice. Darrell Hickman, Justice,

text:
    COMMISSIONER OF REVENUE OF THE STATE OF ARKANSAS v. BLACK & WHITE CAB CO., INC.
    86-107
    720 S.W.2d 911
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986

      Revenue Legal Counsel, by: Joe Morphew, for appellant.

      John Wesley Hall, Jr., for appellee.
   John I. Purtle, Justice.

In response to a petition filed by the appellee, the chancellor declared Ark. Stat. Ann. § 75-203 (Supp. 1985) to require one bond of $50,000 for each taxicab owner operating in the State of Arkansas. The appellant argues on appeal that the statute in question requires a $50,000 bond on each taxicab. We disagree and hold that one $50,000 bond is all that is required under the statute.

On June 18, 1985, the appellee filed suit asking for a judgment declaring that a single $50,000 surety bond is sufficient to meet the requirements imposed by Ark. Stat. Ann. § 75-203. The pertinent part of the statute reads:

It is further provided, however that in lieu of such policy of insurance such owner may file a bond to be signed by some solvent Surety Company licensed to do business in this State, which bond shall be in the form approved by the Commissioner of Revenue, shall be conditioned for the payment of property damage and personal injuries, and shall be in an amount no less than fifty thousand dollars ($50,000).

The statute states that a taxicab owner may post a $50,000 surety bond “in lieu of such policy of insurance.” However, the bond must be “in the form approved by the Commissioner of Revenue.”

The appellee has requested the appellant to approve a single surety bond form in the amount of $50,000 and the appellant has refused to do so. We resolve the question by giving the words of the statute their plain and ordinary meaning. There is no need to construe or interpret the language when it is readily understandable on its face. Bolden, et al. v. Watt, et al., 290 Ark. 343, 719 S.W.2d 428 (1986); City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977).

There is little difference in a surety bond and a single limit insurance policy if each is conditioned upon payment of damages and injuries suffered as a result of the negligence of a taxicab driver. A single $50,000 liability bond could frequently be more helpful to an injured party than the separately stated coverages in a standard insurance policy. The bond coverage could be applied entirely to property damages; whereas, the separately stated coverage in a standard automobile policy is usually limited to property damage in the amount of $10,000 per occurrence. Also, personal injury in the standard, auto policy is usually limited to claims of $25,000 for each injured party and a limit of $50,000 for all injuries in the same accident. Under a surety bond if only one person suffers damages he could claim up to $50,000 for personal injuries, property damages, or both.

The Commissioner must approve the form of the bond. If the bond form provides $50,000 for each occurrence, the bond would be available in the full amount for every accident. Group automobile accident policies are common in the industry; a single policy may afford coverage for a large number of vehicles. Likewise, taxicab owners would not be in compliance with the law if payment of any claim reduced the coverage for additional accidents. To limit the bond to a single amount of $50,000 per fleet would result in there being no liability coverage after the first $50,000 was paid out.

The General Assembly used language in the statute which is clear and unambiguous. It requires the owner of taxicabs to carry insurance or post a surety bond in the amount of $50,000. The clear implication is that such bond would apply in full to each occurrence.

Affirmed.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. All references in the statute are to “taxicab, automobile, or similar vehicle,” “the owner of such taxicab,” or “operation of such taxicab.” Every reference is singular, not plural. Accordingly, the Commissioner of Revenue rightly refused to allow a company owner of a fleet of taxicabs to post a bond for all cabs, when the law clearly requires such a bond for each taxicab. It’s right there in black and white. The same authorities cited by the majority for affirming this case also apply to uphold the commissioner’s decision. If the legislature intended this law to apply to taxicab companies, it would have said so. I would not reach the question of the form of the bond which the majority gratuitously discusses.

I would reverse the chancellor.


author: John I. Purtle, Justice.

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES and Albert MARLAR v. Dorothy ROSS-LAWHON
    86-113
    721 S.W.2d 658
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986

      Steve Clark, Att’y Gen., by: David S. Mitchell, Asst. Att’y Gen., for appellant.
    No brief filed.
   John I. Purtle, Justice.

This is an appeal from a declaratory judgment rendered by the Pulaski County Circuit Court. The judgment declared Ark. Stat. Ann. § 45-440 (Repl. 1977) to be unconstitutional and void as violative of Article 7, Sections 1, 11 and 28 of the Constitution of the State of Arkansas. This statute, as amended in 1977, makes the decisions of the juvenile referee binding upon the county judge. We agree with the appellant that the Pulaski County Circuit Court did not have jurisdiction to declare the statute unconstitutional.

We have held that there are four requisite conditions before declaratory relief may be granted. The four prerequisites are: (1) there must exist a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking relief must have a legal interest in the controversy; and (4) the issue involved in the controversy must be ripe for judicial determination. Andres v. First Arkansas Development Finance Corporation, 230 Ark. 594, 32 S.W.2d 97 (1959). In Sebastian County Association for Retarded Citizens v. Board of Zoning Adjustment, 265 Ark. 175, 577 S.W.2d 394 (1972), citing Andres, we stated that “a declaratory judgment is not proper to decide the legal effect of laws upon contingent and uncertain or future facts which may never occur.” The danger or dilemma must already exist. A declaratory judgment cannot be granted upon speculation or remote possibilities.

This is a procedurally and factually complex case arising out of a child custody dispute. In fact this controversy has once before been in this Court. See Dyer v. Ross-Lawhon, 288 Ark. 327, 704 S.W.2d 629 (1986). The child and the mother resided in Ouachita County when the controversy commenced. The grandmother is and has been at all times a resident of Pulaski County. We examine only the issue of whether the Circuit Court of Pulaski County had the authority to declare the statute in question unconstitutional.

The Declaratory Judgment Act (Ark. Stat. Ann. § 34-2501) states in part as follows:

Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. [Emphasis added.]

The declaratory judgment act provides for courts to render judgments on matters “within their respective jurisdictions.” The subject matter of a petition for declaratory judgment must be founded upon matters which are within the jurisdiction of the court in which the action is commenced.

In the present case the dispute arises out of a custody battle. The declaratory judgment act was not enacted for the purpose of allowing any and all to bring an action in a court of their choosing. The complaint in this case did not show that there was either a justiciable controversy or subject matter jurisdiction in the Pulaski County Circuit Court. Therefore, it was error for the trial court to declare this statute unconstitutional.

Reversed.


author: Robert H. Dudley, Justice.

text:
    Jackie MADEWELL v. STATE of Arkansas
    CR 86-104
    720 S.W.2d 913
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986

      Orville C. Clift, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant pleaded guilty to three counts of aggravated robbery and was sentenced to thirty years on the first count, thirty years on the second, and twenty-five years on the third, with the sentences to be served consecutively. He subsequently filed a petition for post-conviction relief pursuant to A.R.Cr.P. Rule 37. At the end of the hearing on the petition, the trial judge advised appellant from the bench that he planned to deny the petition. Before the trial court issued written findings of fact and conclusions of law, appellant filed a “Motion of Reconsideration. . . .” The trial court treated the motion as an amendment to the original petition. In the findings of fact and conclusions of law, the trial court denied both the original petition and the subsequent motion. We affirm.

On appeal, appellant argues seven points, but two of the points, failure to explain concurrent versus consecutive sentencing and failure to make sufficient inquiry regarding the factual basis for the plea, were not raised in either the petition for post-conviction relief, or the Motion for Reconsideration. All grounds for relief pursuant to Rule 37 must be asserted in the original or amended petition. A.R.Cr.P. Rule 37.2(b) and (e). We do not consider these two issues which are raised for the first time on appeal.

With regard to the remaining issues, appellant states that while the information charged him with three counts of aggravated robbery, a class Y felony, the prosecutor listed the applicable statute as Ark. Stat. Ann. § 41-2103 which defines robbery, a class B felony. From that basis appellant argues that the trial court erred in sentencing him for aggravated robbery when only the robbery statute was listed on the information. No objection of this nature was raised at the trial court level before sentencing. Rule 37 relief is not available on issues which could have been raised in the trial court before sentencing, but were not, unless the issues are so fundamental as to render the judgment void. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). The listing of the wrong statute number on an Information which otherwise clearly explains that appellant was being charged with three counts of aggravated robbery is not so fundamental an error as to render the judgment void.

Appellant next argues that he had ineffective assistance of counsel, since counsel did not object to the wrong statute number being listed on the Information. The argument is without merit. Specified errors of counsel are to be evaluated under the standards enunciated in Strickland v. Washington, 466 U.S. 668 (1984). There the Court held that the benchmark for judging a claim of ineffectiveness is whether counsel’s conduct so undermined the proper functioning of the trial process that the trial cannot be relied on as having produced a just result. In order to reach that mark, a defendant must prove that counsel’s performance was deficient and the deficient performance was so prejudicial that the result of the trial was not reliable. It is an understatement to say the appellant has not reached that mark.

In addition, a defendant must prove prejudice as a result of ineffective counsel. In this case, in the original proceeding, the appellant pleaded guilty to the three aggravated robberies. At the post-conviction hearing he did not offer any evidence to show that his plea was unreliable. Since there is no reasonable doubt about appellant’s guilt or the reliability of the plea, the appellant has suffered no prejudice. The appellant has failed to prove a deficient performance by counsel and failed to prove prejudice, so his argument must fail. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984).

Appellant next argues that the trial court erred in not apprising him of the minimum and maximum terms for robbery. No objection of this nature was made to the trial court prior to sentencing, but, even if such objection had been made, it would not matter because there simply was no error by the trial court. The court was correct in not explaining the minimum and maximum terms for robbery, since appellant was not charged with robbery, but instead, was charged with three counts of aggravated robbery.

Appellant next contends that the trial court erred in convicting and sentencing him for three offenses where they actually constituted only one continuous course of conduct. Again, no objection of this nature was raised in the trial court prior to sentencing. However, since this allegation, if true, would violate the double jeopardy provisions of Ark. Stat. Ann. § 41-105(l)(e) (Repl. 1977) and would thus be so fundamental as to render part of the judgment void, we consider the argument on its merits. See Brewer v. State, 277 Ark. 40, 639 S.W.2d 54 (1982).

The Criminal Code provides that when the “same conduct” of the defendant may establish the commission of more than one offense, the defendant may be prosecuted for each offense. Ark. Stat. Ann. § 41-105(l)(e). However, the defendant may not be convicted of more than one offense if the conduct constitutes an offense defined as a continuing course of conduct. The Commentary explains that a continuing offense is an uninterrupted course of conduct such as nonsupport, Ark. Stat. Ann. § 41-2405, or maintaining a gate across a public road, Ark. Stat. Ann. § 41-2915. Aggravated robbery is not defined as a continuing offense. Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977). It is a single crime. Here, the appellant committed three separate aggravated robberies, the first occurring at a Save-Mart store, the next at a 7-11 store, and the third at a Pizza Hut. There was not a single continuing offense, for the three acts of aggravated robbery were separated in point of time and place. There were three offenses.

Appellant also contends that the court erred in not finding that he was under the influence of drugs when he pleaded guilty and argues that the judge should have inquired as to whether he was taking drugs pursuant to A.R.Cr.P. Rule 24.4. We will not reverse a trial court’s denial of post-conviction relief unless the trial court’s findings are clearly against the preponderance of the evidence. Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984).

Here, the trial court heard evidence from appellant’s attorney that at the time they discussed appellant’s desire to enter a guilty plea he “appeared to me to be entirely cognizant of what was going on. He was lucid. He was able to articulate what he thought. His thoughts were completely connected, completely coherent. He knew exactly what he was doing.” His attorney also testified that he was completely lucid at the time he pleaded guilty. We cannot say the trial judge’s findings were clearly against the preponderance of the evidence.

Further, while it is a good practice for a trial judge to make a record concerning the recent use of drugs or alcohol, A.R.Cr.P. Rule 24.4 does not mandate such an inquiry.

Affirmed.