author: Ray Thornton, Justice.

text:
    STATE of Arkansas v. Billy Wayne HAVENS
    CR 98-1468
    987 S.W.2d 686
    Supreme Court of Arkansas
    Opinion delivered March 25, 1999

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellant.

      Marianne L. Hudson, for appellee.
   Ray Thornton, Justice.

Appellant State of Arkansas appeals the judgment of the Washington County Circuit Court dismissing charges against appellee Billy Wayne Havens for violation of the Arkansas Hot Check Laws. The trial judge granted appellee’s motion to dismiss the charges against him on the grounds that he had not received notice of the dishonor of his checks pursuant to Ark. Code Ann. § 5-37-303 (Repl. 1997). On appeal, the State argues that the trial court erred in reading compliance with the notice provisions as a prerequisite to the filing of criminal charges. This case was certified to us by the Arkansas Court of Appeals, pursuant to Ark. Sup. Ct. R. 1-2(d), because it presents an issue of first impression. We find merit to the State’s argument and reverse.

On September 21, 1998, an amended information was filed by the Washington County prosecutor’s office charging appellee as a habitual offender for drawing several checks aggregating several hundred dollars between December 18, 1997, and February 1, 1998, knowing at the time that he had insufficient funds on deposit to cover the checks and with the intent to defraud a company out of its property, in violation of Ark. Code Ann. § 5-37-302 (Repl. 1997). At a pretrial hearing held September 21, 1998, appellee orally moved to dismiss the charges against him because he did not receive notice pursuant to Ark. Code Ann. § 5-37-303.

The prosecutor contended that nothing in the statute requires the merchant’s giving notice of the dishonor as a prerequisite to prosecution, that the law does not require dismissal of the charges for failure to provide notice, and that Ark. Code Ann. § 5-37-304(a)(2)(B), which provides: “Nothing shall impair the prosecuting attorney’s power to immediately file charges after the check has been returned,” controls the filing of the information against appellee. According to the State’s interpretation, the purpose of the notice provision is to allow the State to use the evidence of failure to pay as prima facie evidence of intent to defraud. Arkansas Code Section 5-37-304 provides that it is prima facie evidence of intent to defraud if: “Payment was refused by the drawee for lack of funds, upon presentation within thirty (30) days after delivery, and the maker or drawer shall not have paid the holder the amount due, together with a service charge not to exceed twenty dollars ($20.00), within ten (10) days after receiving written notice that payment was refused upon the check, draft, or order.” Ark. Code Ann. § 5-37-304(a)(2)(A)(ii) (Repl. 1997). Appellee claimed that sending notice was a prerequisite to the bringing of a criminal prosecution for violation of the Arkansas Hot Check Law, and that the remedy for failure to give such notice by registered mail, return receipt requested, in substantially the form set out in the code, should be dismissal of the charges.

The trial judge agreed with appellee’s contention and dismissed the charges against appellee, ruling that the language of Ark. Code Ann. § 5-37-303 required that the notice be sent to the defendant as a condition precedent to conviction for violation of the Arkansas Hot Check Law. The State brings this appeal of the trial court’s ruling, arguing that the trial court erred in dismissing the charges against appellee by finding that the notice provision was a condition precedent to a prosecution under the Arkansas Hot Check Law. Resolution of this issue necessarily requires our construction of the Arkansas Hot Check Law, which is codified at Ark. Code Ann. §§ 5-37-301 — 5-37-307 (Repl. 1997).

We adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. If the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. State Office of Child Support Enforcem’t v. Terry, 336 Ark. 310, 985 S.W.2d 711 (1999).

Section 5-37-303, the “Notice” provisions of the Arkansas Hot Check Law, provides in part:

(a) For purposes of this section and § 5-37-304, notice that payment was refused by the drawee for lack of funds shall be sent by certified or registered mail, evidenced by return receipt, to the address printed on the instrument or given at the time of issuance, or to the current residence. (b) The form of the notice shall be substantially as follows: “You are hereby notified that the check(s) or instrument(s) listed below (has) (have) been dishonored. Pursuant to Arkansas law, you have ten (10) days from receipt of this notice to tender payment of the total amount of the check(s) or instrument(s), plus the applicable service charge(s) of $_(not to exceed $20.00 per check), the total amount due being $_. Unless this amount is paid in full within the time specified above, the dishonored check(s) or instruments) and all other available information relating to this incident may be turned over to the Prosecuting Attorney for criminal prosecution . . .”

Ark. Code Ann. § 5-37-303 (Repl. 1997).

The section immediately following provides:

(a) For purposes of this section, it is prima facie evidence that the maker or drawer intended to defraud and knew at the time of the making, drawing, uttering, or delivering that the check, draft, or order would not be honored if:
(1) The maker or drawer had no account with the drawee at the time the check, draft, or order was made, drawn, uttered, or delivered; or
(2) (A)(i) The check, draft, or order bears the endorsement or stamp of a collecting bank indicating that the instrument was returned because of insufficient funds to cover the value; or
(ii) Payment was refused by the drawee for lack of funds, upon presentation within thirty (30) days after delivery, and the maker or drawer shall not have paid the holder the amount due, together with a service charge not to exceed twenty dollars ($20.00), within ten (10) days after receiving written notice that payment was refused upon the check, draft, or order.
(B) Nothing shall impair the prosecuting attorney’s power to immediately file charges after the check has been returned. The prosecuting attorney may collect restitution including a service charge, not exceeding twenty dollars ($20.00) per check, for the payees of the check.

Ark. Code Ann. § 5-37-304 (Repl. 1997).

On review of an issue of statutory interpretation, we are not bound by the decision of the circuit court. However, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998)(citing Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977). In the present case the trial judge found that, despite the plain language of Ark. Code Ann. § 5-37-304(a)(2)(B) that nothing shall impair the prosecutor’s power to immediately file charges after the check has been returned, section 5-37-303 required that in order to obtain a judgment of conviction in a proceeding for violation of the Arkansas Hot Check Law, it was necessary for the State or the payee to provide notice of the check’s return to the drawer and to give the drawer ten days to tender payment of the check and appropriate fees.

We disagree with the trial court’s decision for two reasons. First, the plain language of section 5-37-304, which outlines the various methods by which the State can make a prima facie case of violation of the Arkansas Hot Check Law, states that it is prima facie evidence of intent to defraud and knowledge that the check would be dishonored if the drawer fails to pay the holder of the check the amount due, plus the service charge, within ten days after receiving written notice that payment was refused. Ark. Code Ann. § 5-37-304(a)(2)(ii).

Section 5-37-307 concerning the crime of knowingly issuing a worthless check provides that:

(a) A person commits an offense if he issues or passes a check, order, or draft for the payment of money knowing that the issuer does not have sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check, order, or draft as well as all other checks, orders, or drafts outstanding at the time of issuance . . .
(b) This section does not prevent the prosecuting attorney from establishing the required knowledge by direct evidence. However, for purposes of this section, the issuer’s knowledge of insufficient funds is presumed, except in the case of a postdated check, order, or draft, if:
(1) He had no account with the bank or other drawee at the time he issued the check, order, or draft; or
(2) Payment was refused by the bank or other drawee for lack of funds or insufficient funds on presentation within thirty (30) days after issue and the issuer failed to pay the holder in full, plus a service charge not to exceed twenty dollars ($20.00), within ten (10) days after receiving notice of that refusal.
(c) Notice for purposes of this section shall be by the procedure as set forth in §§ 5-37-303 and 5-37-304.

Ark. Code Ann. § 5-37-307 (Repl. 1997)(emphasis added).

A plain reading of these statutes supports the State’s argument that while notice from the merchant or holder pursuant to § 5-37-303 is required for the State to make a prima facie case for violation of the Arkansas Hot Check Law based upon failure to pay a returned check, notice to the drawer of the check is not a prerequisite to the bringing of criminal charges by the State. Section 5-37-307 provides for the prosecutor to prove a violation of the hot check laws wholly apart from sending of notice. Notice under these statutes only allows the State an additional method of making a prima facie case if payment is not made after the notice is sent. Even if the notice is not sent, the State can still make its case by direct evidence. This reading is further supported by the introductory language of § 5-37-303 that provides that notice shall be sent by registered mail “for purposes of this section and § 5-37-304.” Ark. Code Ann. § 5-37-303(a). Under earlier statutes we have held that notice was not required before making an arrest, Brewer v. State, 195 Ark. 477, 112 S.W.2d 976 (1938), and that the State was not required to allege in its indictment that it had complied with the notice provision in order to make a prima facie case of intent to defraud based upon dishonor by the drawee. Collier v. State, 183 Ark. 1057, 40 S.W.2d 455 (1931). The earlier forms of the Arkansas Hot Check Law combined the two provisions, clearly establishing that notice was a portion of the requirements for making a prima facie case. See e.g., Act 899 of 1983. The 1987 enactment of the new Arkansas Code codified a separate section headed “Notice,” but provided that the notice provisions would be read in conjunction with the making of a prima facie case of intent to defraud, as indicated by § 5-37-303(a).

Secondly, we find particularly compelling the language of § 5-37-304(a)(2)(B), that “Nothing shall impair the prosecuting attorney’s power to immediately file charges after the check has been returned.” We adhere to the basic rule of statutory construction, which gives effect to the intent of the legislature, making use of common sense and giving words their usual and ordinary meaning. L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998). The language of the statute that nothing shall impair the prosecutor’s power to immediately file charges after the check has been returned is completely clear.

The appellee gives a number of arguments for upholding the trial court. We dismiss those arguments because the statute is clear, and there is no need for further construction or interpretation of the statute. See State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993).

The State further requests that the charges against appellee be reinstated, a request that appellant contends violates the constitutional prohibitions against Double Jeopardy. The charges against appellee were dismissed on a pretrial motion of appellee’s counsel, and the State should be permitted to refile the information against him. Where a defendant received a favorable trial decision not because the State fails to prove its case, but because the trial court, at the defendant’s instigation, mistakenly applied an erroneous interpretation of the law, he suffers no injury cognizable under the Double Jeopardy Clause. Permitting retrial in this instance is not the sort of oppression at which the Double Jeopardy Clause is directed, but instead simply affords the defendant an opportunity to obtain a fair adjudication of his guilt free from error. State v. Zawodniak, 329 Ark. 179, 946 S.W.2d 936 (1997).

Reversed and remanded.

       Although we have not been explicitly asked to decide the question raised below as to who is required to provide the notice at issue, we do observe that the form of the notice at Ark. Code Ann. § 5-37-303 clearly contemplates that the notice be sent by the merchant or holder of the returned check rather than the prosecutor.


source: Caselaw Access Project

author: W. H.“Dub” Arnold, Chief Justice.

license: Public Domain

text:
    Murray F. ARMSTRONG v. Larry NORRIS, Director of the Arkansas Department of Correction, and M.D. Reed, Warden of the Cummins Unit of the Arkansas Department of Correction
    CR 98-1325
    989 S.W.2d 157
    Supreme Court of Arkansas
    Opinion delivered April 8, 1999

      Thurman, Lawrence & Heuer, P.L.C., by: Sam T. Huer, for appellant.

      Mark Pryor, Att’y Gen., by: O. Milton Fine II, Ass’t Att’y Gen., for appellee.
   W. H.“Dub” Arnold, Chief Justice.

Appellant, Murray F. Armstrong, filed a petition for writ of habeas corpus in Lincoln County, the county where he is currently being held at the Arkansas Department of Correction’s Cummins Unit. Pursuant to Ark. R. Civ. P. 12(b)(8), the Lincoln County Circuit Court denied appellant’s petition. In the instant appeal, Armstrong first argues that the trial court erred in dismissing his petition. Second, he requests that this court grant the petition. In light of our recent opinion relating to this matter, we reverse and remand. See State v. Circuit Court of Lincoln County, 336 Ark. 122, 984 S.W.2d 412 (1999).

Facts

Appellant was charged with multiple counts of theft of property and forgery in Lincoln, Bradley, and Cleveland Counties. Significantly, each county is located in a separate judicial district. On June 11, 1997, the State moved to transfer Armstrong’s Lincoln County charges to the Cleveland County Circuit Court. Special Judge John Cole granted the transfer. Ultimately, on August 5, 1997, the Cleveland County Circuit Court entered a judgment and commitment order on the Lincoln County charges.

Following his convictions, Armstrong filed identical Rule 37 petitions in Lincoln, Bradley, and Cleveland Counties. On June 19, 1998, the State moved to dismiss the Lincoln County Rule 37 petition, but Judge Cole denied that motion on July 7, 1998. Consequently, the State filed a petition for writ of prohibition. Upon reviewing the petition, this court concluded that the Cleveland County court’s judgment and commitment order, albeit related to Lincoln County charges, made the Cleveland County court the “sentencing court.” Circuit Court of Lincoln County, 336 Ark. at 126, 984 S.W.2d at 414. We also noted that although venue may be waived, jurisdiction may not. Indeed, venue may be changed only to another county within the judicial district in which the indictment was filed. Granting the State’s writ of prohibition, we reasoned that the Cleveland County court’s judgment was void, vis-a-vis the Lincoln-County charges, and postconviction relief was unavailable when the judgment of conviction and sentence were void.

Following his convictions, Armstrong also filed a petition for writ of habeas corpus with the Lincoln County Circuit Court that is the subject of the instant appeal. In a letter opinion filed May 15, 1998, Judge Cole referenced Armstrong’s three identical Rule 37 petitions pending in Lincoln, Bradley, and Cleveland Counties, and he suggested that the Rule 37 petitions alleged the same basis for relief as the habeas corpus petition, namely, that the committing court lacked jurisdiction. Accordingly, pursuant to Ark. R. Civ. P. 12(b)(8), the Lincoln County Circuit Court dismissed the petition for writ of habeas corpus because the Rule 37 and habeas corpus petitions involved “different actions between the same parties arising out of the same transactions or occurrence alleging the same factual breach of duties and responsibility and praying for the same relief.” From this dismissal, comes the instant appeal.

Habeas corpus petition

We permit review of habeas corpus proceedings only by appeal. In re Review of Habeas Corpus Proceedings, 313 Ark. 168, 852 S.W.2d 791 (1993). Flere, the record clearly indicates that the Lincoln County Circuit Court denied appellant’s petition for writ of habeas corpus on the basis of Ark. R. Civ. P. 12(b)(8), which provides a defense based upon the “pendency of another action between the same parties arising out of the same transaction or occurrence.” Here, however, we first note that Armstrong filed the habeas corpus petition before he filed his Rule 37 petition. Therefore, the Rule 37 petition was not pending when the habeas corpus petition was filed.

Second, Armstrong properly filed the habeas corpus petition in Lincoln County, the county where he is incarcerated. We recognize a distinction between a petition for habeas corpus and a petition for postconviction relief, and we also acknowledge that the efficacy of a petition for writ of habeas corpus is guaranteed by Article 2, Section 11, of the Constitution of Arkansas. See Waddle v. Sargent, 313 Ark. 539, 544, 855 S.W.2d 919, 922 (1993). Here, the purpose of Armstrong’s habeas corpus petition was to allege that he was being held in Lincoln County without lawful authority.

In any event, given our holding in Circuit Court of Lincoln County, Rule 12(b)(8) could not provide a basis for dismissing the habeas corpus petition because the Lincoln County Circuit Court was not the sentencing court as to the Lincoln County charges. See Circuit Court of Lincoln County, 336 Ark. at 126, 984 S.W.2d at 414. In light of the foregoing, we hold that appellant’s petition for writ of habeas corpus is not procedurally barred, and we reverse and remand.


author: Tom Glaze, Justice.

text:
    STATE of Arkansas v. Larry OSBORN
    CR 98-1388
    988 S.W.2d 485
    Supreme Court of Arkansas
    Opinion delivered April 8, 1999

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellant.
    No response.
   Tom Glaze, Justice.

The State brings this appeal as one involving a case where it is asserted that error has been committed to the State’s prejudice and the correct and uniform administration of the law requires this court’s review. See Ark. R. App. P.—Crim. 3(c). We agree.

Appellant Larry Osborn was charged and convicted of the crime of aggravated robbery. The jury found Osborn to be a habitual offender and fixed his sentence at bfe imprisonment. Afterwards, Osborn moved for a new trial, alleging the prosecutor made improper closing remarks that misled the jury, causing it to award a more severe sentence than it otherwise would have imposed. The trial judge held a hearing on Osborn’s motion, and permitted three jurors to testify concerning their deliberations when they were asked to fix Osborn’s sentence. At the conclusion of the jurors’ testimonies, the judge granted Osborn’s motion and ordered a new sentencing trial.

On appeal, the State’s sole point for reversal is that the trial court’s decision violated Rule 606(b) of the Arkansas Rules of Evidence. Rule 606(b) provides as follows:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent or to dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. (Emphasis added.)

In the instant case, Osborn’s prior felony convictions were (1) theft by receiving, (2) aggravated robbery, (3) burglary and theft of property, and (4) breaking and entering. In closing argument during the sentencing phase, the prosecutor said, “This is a crime that requires serious punishment and this defendant has to be stopped. He’s done it four other times, five times now. He has to be stopped.” Osborne offered no objection to these remarks. The jury then retired and subsequently returned a verdict of fife imprisonment.

Apparently, two jurors spoke with Osborn’s counsel and the trial judge sometime after the sentencing phase, and told them they were troubled that they had voted for a life sentence based upon information they believed to be valid, but later found to be incorrect. Osborn moved for a new sentencing trial. In considering Osborn’s motion, the trial court allowed three jurors to testify and to expound on why they desired to change their votes on the sentencing. Although the prosecutor argued that the jurors’ testimonies were inadmissible under Rule 606(b), the trial judge responded that he “would allow the jurors to testify about (1) any misunderstanding they perceived, (2) anyone that (sic) caused them to misunderstand what was occurring, and (3) their feelings [as to] what occurred.” In short, the jurors testified that they had incorrectly believed that all of Osburn’s prior crimes had been aggravated robberies and involved a weapon or violence, and if they had known otherwise, they would not have voted for life imprisonment. At the conclusion of the jurors’ testimonies, the trial judge related the following:

The Court believes that these jurors have searched their souls and that it would be totally inappropriate for them to go through the rest of their life regretting a decision that they had made. I think that they are the cornerstone of this system, that we must rely upon jurors, that if they perceive something from a standpoint, such as has occurred here, that is incorrect and they have sentenced someone to such a severe term that they should not carry that burden forever. That wrong can be righted by simply giving this defendant a new trial on sentencing only. It is unequivocal that he committed the act, there is no doubt that he committed that robbery, but there is considerable doubt in this Court’s mind that these jurors would have ever sentenced that severely. I will not allow the State to rely upon an erroneous sentencing. Therefore, the Court grants the new trial on sentencing only.

The trial judge’s hearing and decision violated Rule 606(b). The purpose of Rule 606(b) is to attempt to balance the freedom of the secrecy of jury deliberations with the ability to correct an irregularity in those decisions. Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 748 S.W.2d 143 (1988). In Strahan v. Webb, 231 Ark. 426, 330 S.W.2d 291 (1959), this court, quoting from 53 American Jurisprudence, § 1105, set out the policy and purposes underlying Rule 606(b). That policy, now published in 75B Am. Jur. 2d, Trial § 1900 (1992), reads as follows:

The rule that testimony or affidavits of jurors impeaching a verdict tendered by them will not be received where the facts sought to be shown are such as inhere in the verdict is founded on public policy, and is for the purpose of preventing litigants or the public from invading the privacy of the jury room, either during the deliberations of the jury or afterward. It is to prevent overzealous litigants and a curious public from prying into deliberations which are intended to be, and should be, private, frank, and free discussions of the questions under consideration. Further, if after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, it would open the door for tampering with jurors and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under sanction of an oath. The exclusion of jurors’ testimony as to their mental processes in arriving at a verdict, is founded not upon the discredited basis of the policies against self-stultification and avoidance of jury tampering or perjury, or other fraudulent practices, but upon the sounder ground that being personal to each juror, the working of the mind of any of them cannot be subjected to the test of other testimony, and therefore that such testimony should not be received to overthrow the verdict to which all assented. A rule permitting unrestricted attacks on jury verdicts would undermine the finality of judgments. The rule also prevents tampering with the jury after discharge and discourages the invasion of the mental processes used to arrive at verdicts. (Emphasis added.)

Our decisions are consistent with the above purposes and adhere to the rule that juries may not testify about what affected them during deliberations. For example, in Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981), the court held that Rule 606(b) precluded a juror from testifying as to the effect of anything upon his mind as influencing him to assent to the verdict. Sanson involved a car accident, and there, two jurors in support of a new-trial motion averred that they found Puflum was not negligent based on the investigating officer’s erroneous trial testimony that the reaction time between a driver’s seeing danger and hitting the brakes was four and a half seconds. As a part of Sanson’s post-trial motion, the officer corrected his earlier testimony by affidavit, averring that the reaction time was only three-fourths of a second.

In another case, Veasey v. State, 276 Ark. 457, 637 S.W.2d 545 (1982), a juror approached defense counsel after trial and advised him the jury had assumed the defendant would serve considerably less time than thirty-five years in prison because of the parole system. The Veasey court affirmed the trial court’s ruling to limit questioning of the juror to whether any extraneous or prejudicial information or any outside influence was brought to bear on any juror. Id. at 460-61. The court further held that Rule 606(b) plainly states that a juror may not testify as to the effect of anything upon his mind as influencing him to assent to the verdict.

In sum, our cases, as discussed above, have made it clear that a juror’s misunderstandings or beliefs based on erroneous representations may not be considered under Rule 606(b). Accordingly, we reverse and remand this cause and direct the trial judge to reinstate Osborn’s sentence of life imprisonment.


author: Donald L. Corbin, Justice.

text:
    Mark Lee FULMER v. STATE of Arkansas
    98-1205
    987 S.W.2d 700
    Supreme Court of Arkansas
    Opinion delivered April 8, 1999

      Danny M. Rasmussen, for appellant.

      Mark Pryor, Att’y Gen., by: Mac Golden, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Mark Lee Fulmer appeals the order of the Faulkner County Circuit Court denying his petition to seal his criminal record pursuant to Ark. Code Ann. § 16-93-1207 (Supp. 1997). This appeal was certified to us from the Arkansas Court of Appeals on the basis that it presents an issue of statutory interpretation that requires clarification of the law; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(5) and (6). For reversal, Appellant argues that the trial court erred in ruling that it lacked jurisdiction to expunge his record. We find merit to Appellant’s argument and reverse.

Appellant pleaded guilty to the charge of driving while intoxicated (DWI), fourth offense, on December 11, 1995. The judgment and disposition order reflects that Appellant was sentenced to twenty-four months in the Arkansas Department of Correction and was ordered to pay a fine and court costs. The order provided that Appellant was to be judicially transferred to the Department of Community Punishment for drug and alcohol treatment at Choices. On December 12, 1997, Appellant filed a petition to seal and expunge his DWI record pursuant to section 16-93-1207(b)(1). The State stipulated that Appellant had completed his sentence and paid his fine and costs. The State also conceded that because Appellant was sentenced to the Department of Community Punishment, the expungement provisions of section 16-93-1207 would apply to his case. The State maintained, however, that under Shelton v. State, 44 Ark. App. 156, 870 S.W.2d 398 (1994), Appellant’s record could not be expunged because he had not been specifically sentenced under an expungement provision.

The trial court denied Appellant’s requested relief, finding that it lacked jurisdiction to expunge his criminal record under the holding in Shelton, 44 Ark. App. 156, 870 S.W.2d 398. The trial court relied on the following language from that case:

A trial court does not have the power to expunge appellant’s record when appellant was not sentenced under one of the statutes which specifically provides for expunging the record.

Id. at 160, 870 S.W.2d at 400. The trial court found significant the fact that the Shelton court made no reference to section 16-93-1207, which the trial court noted was included in Act 531 of 1993 and was in effect at the time Shelton was decided. Thus, the trial court concluded that section 16-93-1207 was inapplicable to Appellant’s situation.

On appeal, Appellant argues that the trial court erred in denying the petition on the basis that it lacked jurisdiction to expunge his criminal record pursuant to section 16-93-1207. We agree.

Section 16-93-1207, provides in pertinent part:

(a) Upon the sentencing or placing on probation of any person under the provisions of this subchapter, the sentencing court shall issue an order or commitment, whichever is appropriate, in writing, setting forth the following:
(1) That the offender is being:
(B) Committed to the Department of Correction with judicial transfer to the Department of Community Punishment;
(b)(1) Upon the successful completion of probation or a commitment to the Arkansas Department of Correction with judicial transfer to the Department of Community Punishment for one of the offenses targeted by the General Assembly for community punishment placement, the court may direct that the record of the offender be expunged of the offense of which the offender was convicted under the following conditions:
(C) That the offender has no prior felony convictions. [Emphasis added.]

It is clear from the language of subsection (b)(1) that the circuit court has the ability to expunge an offender’s criminal record if the offender (1) has successfully completed a sentence under the Community Punishment Act, Ark. Code Ann. §§ 16-93-1201 to -1210 (Supp. 1997), (2) for a target offense, and (3) has no prior felony convictions. Here, there is no dispute that Appellant was sentenced under the provisions of the Act. The order reflects that Appellant was convicted of DWI, a target offense under the Act. See section 16-93-1202(1). The order also reflects that he was sentenced to twenty-four months in the Department of Correction, with a judicial transfer to the Department of Community Punishment for drug and alcohol treatment. See section 16-93-1207(a)(1)(B). Moreover, there is no dispute that Appellant successfully completed his sentence and that he did not have any prior felony convictions. Under the circumstances, it is irrelevant that the judgment and disposition order does not specifically recite that Appellant was sentenced under section 16-93-1207, as such recitation is not required to be eligible for expungement under the Act. Accordingly, we conclude that the trial court erred in ruling that it lacked jurisdiction to grant Appellant’s petition for expungement.

Additionally, the facts in Shelton, 44 Ark. App. 156, 870 S.W.2d 398, do not support the trial court’s conclusion that the lack of reference to section 16-93-1207 was tantamount to a determination by the court of appeals that expungement of an offender’s criminal record may not be had under that section. There, Shelton was sentenced to five years’ probation for two counts of delivery of a controlled substance. On appeal, he admitted that he had not been sentenced under any expungement statute. He argued, however, that the trial court had inherent power to expunge his record beyond that provided statutorily. Relying on this court’s repeated holdings that sentencing in criminal cases is entirely a matter of statute, the court of appeals concluded that because Shelton had not been sentenced under an expungement statute, the trial court had no power to expunge his record. Thus, the court of appeals could not have considered expungement under section 16-93-1207 because Shelton was sentenced prior to the effective date of that statute.

In the instant appeal, the State concedes that the trial court has jurisdiction under section 16-93-1207 to expunge Appellant’s DWI record. Nonetheless, the State urges us to affirm the trial court’s ruling on the basis that Appellant failed to file a uniform petition for expungement, as provided in Ark. Code Ann. § 16-90-905 (Supp. 1997).

Section 16-90-905 (a)(1) provides that “[t]he Arkansas Crime Information Center shall adopt and provide a uniform petition and order to seal records which shall be used by all petitioners and by all circuit and municipal courts in this state.” Subsection (a)(3) provides that “[t]he petition shall include a statement that the information contained in the petition is true and correct to the best of the petitioner’s knowledge[.]” Subsection (a)(3) also provides that the order shall, at a minimum, contain the following data:

(A) The person’s full name, race, sex, and date of birth;
(B) The person’s full name at the time of arrest and adjudication of guilt, if different than the person’s current name;
(C) The crimes for which the person was adjudicated guilty, and the date of the disposition;
(D) The identity of the court;
(E) The provision under which the individual was sentenced that provides for sealing or expungement of the record; and
(F) The specific records to be sealed.

Section 16-93-1207 (b)(3) dictates that the procedure for expungement under the Community Punishment Act “shall be in accordance with that established in § 16-90-901 et seq.”

The State contends that by using the word “shall” in section 16-90-905, the legislature intended that the filing of a uniform petition by every petitioner is mandatory, not discretionary. The State argues that Appellant’s failure to file a uniform petition for expungement is thus fatal to his cause. Appellant admits that he did not file a uniform petition; however, he asserts that his petition substantially complied with the requirements of section 16-90-905. He asserts further that the word “shall” as used in that section is directory, rather than mandatory.

Though ordinarily the word “shall” is mandatory, and the word “may” is directory, they are often used interchangeably in legislation. Arkansas State Highway Comm’n v. Mabry, 229 Ark. 261, 315 S.W.2d 900 (1958). In Mabry, this court recognized that to carry out the legislature’s intent, the word “shall” may, in certain circumstances, be construed as the equivalent of the word “may.” This court concluded that if the language of the statute, considered as a whole and with due regard to its nature and object, reveals that the legislature intended the word “shall” to be directory, it should be given that meaning.

Since Mabry, this court has consistently held that the use of the word “shall” in a statute means that the legislature intended mandatory compliance with the statute unless such an interpretation would lead to an absurdity. See Hattison v. State, 324 Ark. 317, 920 S.W.2d 849 (1996); Klinger v. City of Fayetteville, 293 Ark. 128, 732 S.W.2d 859 (1987); Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986). This court has also consistently held that in determining whether a statute’s provisions are mandatory or merely directory, we adhere to the principle that those things which are of the essence of the thing to be done are mandatory, while those not of the essence of the thing to be done are directory only. See McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991); Taggart & Taggart Seed Co., Inc. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983); Edwards v. Hall, 30 Ark. 31 (1875). The question then is whether the legislature intended section 16-90-905 to mandate that all petitioners file a uniform petition for expungement before the circuit court may grant the requested relief. We conclude that the legislature did not intend such mandatory or strict compliance.

In reading section 16-90-905 in its entirety, it is clear that the essence of the thing to be done is the creation of a uniform order to seal the records. This is apparent from the fact that section 16-90-905(a)(3) specifically requires six different categories of data to be included in the order, while the only requirement specified for the petition is a statement that the petition is true and correct to the best of the petitioner’s knowledge. Additionally, subsection (a)(2) provides that no order to expunge records “shall be effective unless the uniform order is entered.” There is no similar provision for a petition. Thus, it would seem that the legislature placed chief importance on the uniformity of the order granting expungement.

This is further apparent from the purpose of the order as set out in Ark. Code Ann. § 16-90-904(d) (Supp. 1997). That section provides that once the uniform order described in section 16-90-905 is entered and filed, “[t]he clerk of the court shall certify copies of the uniform order to the prosecuting attorney who filed the underlying charges, the arresting agency, the Administrative Office of the Courts, and the Arkansas Crime Information Center.” As orders from every county will be sent to State agencies that compile statistical data, in addition to the local law enforcement entities, it is essential that the information provided be uniform. The purpose of the petition, on the other hand, is to provide notice to the prosecuting attorney and the arresting agency, so that they may have the opportunity to oppose the petition. See section 16-90-904(b). Thus, the exact form of the petition is unimportant, provided that sufficient information is contained therein to apprise the prosecuting attorney and the arresting agency what record the petitioner seeks to have expunged and the legal grounds for expungement.

In the instant case, Appellant’s petition provides notification of the following information: (1) that he was requesting expungement of his record for DWI, fourth offense, Ark. Code Ann. § 5-65-103 (Repl. 1997); (2) that he had entered a guilty plea to DWI, a target offense under the Community Punishment Act, and had been sentenced to twenty-four months’ imprisonment with judicial transfer to the Department of Community Punishment; (3) that he had successfully complied with the conditions and orders of the court; and (4) that he was sentenced as a first offender. Additionally, the petition contains Appellant’s full name, race, sex, and date of birth, as well as a statement that the information contained in the petition “is true and correct to the best of my knowledge.” The certificate of service demonstrates that a copy of the petition was served on the Faulkner County Prosecuting Attorney, the Conway Police Department, and Appellant’s parole officer. We conclude that Appellant’s petition substantially complies with the provisions of section 16-90-905, given that it contains the very data required to be included in the order of expungement, as described in subsection (a)(3) of that statute.

We thus reject the State’s argument, as we can see no legitimate reason under section 16-90-905 why expungement may not be granted based upon a petition that substantially complies with the requirements of that section, so long as the order granting expungement contains the particular information listed in section 16-90-905 (a) (3). In construing Ark. Code Ann. §§ 16-90-901 to -906 (Supp. 1997), it is evident that the legislature was more concerned with the particular contents of the order than it was with the petition, and that the essence of the thing to be done is the establishment of a uniform order of expungement. Accordingly, to interpret section 16-90-905 as requiring anything other than substantial compliance with the form of the petition would be placing form over substance to the level of absurdity. This we will not do.

In sum, we conclude that the trial court erred in denying Appellant’s petition on the ground that it lacked jurisdiction or authority to do so. Section 16-93-1207 clearly provides such authority. We agree with the State, however, that the decision whether to expunge Appellant’s record is a discretionary one that rests with the trial court. Section 16-93-1207(b)(1) provides that the court may direct that the offender’s record be expunged. We thus reverse the trial court’s ruling and remand this case for consideration of the merits of Appellant’s petition.

Reversed and remanded.

       Appellant also argues that his petition substantially complies with the uniform petition adopted by the Arkansas Crime Information Center. We cannot reach the merits of this argument, as the uniform petition is not contained in the record.


author: Robert L. Brown, Justice.

text:
    CITY of DOVER v. A.G. BARTON, et al.

    98-907
    987 S.W.2d 705
    Supreme Court of Arkansas
    Opinion delivered April 8, 1999
    [Petition for rehearing denied May 13, 1999.]

      McCormick Law Firm, P.A., by: David H. McCormick, for appellant.

      James Dunham and Donald Bourne, for appellee City of Russellville; Alex Streett, for appellee City Corporation of Russellville.
   Robert L. Brown, Justice.

The City of Dover (hereinafter “Dover”) appeals from a final decree enjoining Dover from constructing, operating, or maintaining a sewage-treatment facility due to a violation of Act 1336 of 1997, now codified at Ark. Code Ann. § 14-235-203 (Repl. 1998). Because the trial court applied Act 1336 retroactively and because the appellees failed to exhaust their administrative remedies, we reverse and remand.

On July 22, 1996, the Dover City Council passed an ordinance calling for a special election on whether to issue bonds to finance a sewage-treatment facility. The voters approved the bond issue. On February 18, 1997, the Pollution Control and Ecology Commission issued a draft construction permit to Dover for the sewage-treatment facility, and a public hearing on the draft permit was held on April 17, 1997.

In May of 1997, Dover contracted to buy fifteen acres near Baker’s Creek to build the facility, which is within ten miles of the Dover corporate limits. In July 1997, Dover entered into a contract with a contractor for the construction of the facility, and construction commenced. On July 31, 1997, the Pollution Control and Ecology Commission issued its final construction permit. On September 8, 1997, various interested petitioners, other than the appellees, filed a response to the final permit, but the Commission ruled that the response, which was a request for rehearing, was untimely.

On July 25, 1997, appellees A.G. and Bettye Barton and Jay and Edith King (hereinafter “Bartons”), who were landowners near the proposed construction site, sued Dover in chancery court for taking their land by inverse condemnation. They asked that the construction be stayed and for damages. Dover moved to dismiss on the basis that damages could not be awarded in chancery court, and the Bartons amended their complaint to ask for injunctive relief due to a violation of Act 1336 of 1997.

On August 12, 1997, appellee City Corporation, which operates a sewage-treatment plant in Russellville, filed a separate lawsuit against Dover for violation of its contract to treat Dover’s sewage. This lawsuit was consolidated with the Bartons’ litigation. On August 22, 1997, appellee City of Russellville intervened and alleged that Dover had violated Act 1336 of 1997 and that its proposed sewage-treatment facility constituted a public nuisance.

On August 26, 1997, the trial court held a hearing and concluded that Dover had not complied with Act 1336 and issued a temporary injunction. Cross motions for summary judgment were filed, and on March 24, 1998, the trial court ruled that Dover was in violation of Act 1336 and enjoined further construction. On June 24, 1998, the trial court entered its final decree enjoining the project and decHning to reach the other issues raised.

Dover initially advanced multiple points on appeal, which included a recusal motion for the trial court and constitutional challenges to Act 1336, but Dover has now conceded that those issues do not constitute reversible error. The remaining issues include the retroactive application of Act 1336 and the subject-matter jurisdiction of the trial court to enforce the Act.

Because this appeal turns on whether Act 1336 was appropriately applied to this project, the effective date of Act 1336 is all important. On April 11, 1997, Act 1336 was enacted into law. However, an effort to add an Emergency Clause to the original bill failed, which meant that the Act’s effective date was August 1, 1997. There is no language in Act 1336 stating that the Act is to be applied retroactively. Our law is clear that absent language in the legislative act to the contrary, statutes affecting substantive rights are to be given only prospective application. See Arkansas Dep’t of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 823 (1993). It is presumed that the General Assembly intended prospective application unless the language of the act clearly admits no other construction. Arkansas Rural Med. Practice Student Loan and Scholarship Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987). Any doubt on the matter is resolved against retroactive application. Id.

Prior to August 1, 1997, the statute that Act 1336 amended provided that municipalities had jurisdiction for ten miles outside of their corporate limits for the purpose of building sewage-treatment facilities. See Ark. Code Ann. § 14-235-203 (Supp. 1995). Prior to Act 1336, § 14-235-203 also provided that every municipality was authorized to construct, operate, and maintain a sewage-treatment center inside or outside its corporate limits. With Act 1336, § 14-235-203 was amended to read:

However, before a municipality may construct, operate, or maintain a sewage collection system or sewage treatment plant outside of the corporate limits, it must be demonstrated in accordance with subsection (d) of this section that such construction, operation, or maintenance within the corporate limits is not feasible. If it is determined that it is not feasible to construct, operate, or maintain the sewage collection system or sewage treatment plant within the corporate limits, the feasibility of constructing, operating, or maintaining the sewage collection system or sewage treatment plant within the municipality’s seven-year growth area must be determined in accordance with subsection (d) of this section.

Ark. Code Ann. § 14-235-203(c)(1) (Repl. 1998). Act 1336 further provided that the determination of feasibility must include the municipality’s best efforts to locate the sewage-treatment facility inside the corporate limits and also must address certain factors, including the material adverse effect on real property in locating the facility outside of the corporate limits.

We view the applicability of Act 1336 as affecting those sewage-treatment facilities constructed after the effective date of the Act. Clearly, in such circumstances the feasibility study must be done before construction can commence. If construction by Dover commenced under § 14-235-203 prior to the effective date of Act 1336, that Act would have no pertinence. We believe that is what occurred in this case.

It is undisputed that Dover planned for the sewage-treatment facility outside of its corporate limits, passed a bond issue, received a construction permit from Pollution Control and Ecology, bought the land for the facility, contracted for its construction, and began the construction all before the effective date of Act 1336 on August 1, 1997. Under § 14-235-203 before its amendment by Act 1336, there was no requirement of a feasibility study justifying construction outside the corporate limits. Thus, the manner in which Dover proceeded was entirely appropriate under the law as it existed at that time.

We are mindful that by its terms Act 1336 must be complied with before a sewage-treatment plant can be “constructed, operated or maintained.” The City of Russellville and City Corporation focus on the disjunctive language and interpret this to mean that even if construction of the Dover sewage facility began before the effective date of Act 1336, operation and maintenance of the facility without question would occur after August 1, 1997. Thus, according to their theory, Act 1336 is still controlling.

We do not read this phrase in Act 1336 stricdy in the disjunctive but rather as a continuum of activity relating to the initial location, building, and operation of a sewage facility. To read the language otherwise would mean that any municipality now operating a sewage-treatment facility would have to file a feasibility plan irrespective of when the facility was located and built. Again, we will not give Act 1336 a retroactive effect. Nor will we interpret the words in such a fashion as to require municipalities that have legitimately commenced construction of sewage-treatment facilities before Act 1336’s effective date but not begun operation by that time to file a feasibility study regarding location. That would be unfair in the extreme. The clear purpose of Act 1336 relates to the appropriate siting of a facility within the corporate limits of the municipality or within its seven-year growth area.

We would be remiss if we did not also address the fact that the appellees never pursued their remedies to enforce Act 1336 before the Arkansas Pollution Control and Ecology Commission. Dover correctly points to statutory law that vests the Commission with the authority to issue permits for sewage-treatment facilities. See Ark. Code Ann. § 8-4-203(a) (Supp. 1997). It is also the Commission that is given the power to “enforce all laws” relating to water pollution. See Ark. Code Ann. § 8-4-201 (a)(1) (Supp. 1997). As part of this function, the Commission must approve plans for sewage systems. See Ark. Code Ann. § 8-4-201 (a) (4)(Supp. 1997).

It is clear to us that the Commission was the proper forum for hearing the appellees’ Act 1336 claim. Dover emphasizes that interested parties, other than the appellees, did request a hearing on the Commission’s issuance of a final construction permit to that city but were untimely in making the request. We are likewise convinced that the appellees should have pursued their remedies for a violation of Act 1336 before the Commission and, failing a satisfactory ruling, appealed the matter to circuit court. See Ark. Code Ann. § 8-4-222 (Repl. 1993). They did not and, thus, failed to exhaust their administrative remedies. See Regional Care Facilities, Inc. v. Rose Care, Inc., 322 Ark. 780, 912 S.W.2d 406 (1995). We conclude that chancery court was not the appropriate jurisdiction to hear the Act 1336 claim.

Finally, City of Russellville and City Corporation urge that the trial court should be affirmed because it reached the right result albeit for the wrong reason. According to these appellees, Dover’s location of the sewage-treatment facility violated ordinances of the City of Russellville in that part of the facility is located in an area subject to Russellville’s jurisdiction and Dover did not obtain a large-scale development permit from the City. Dover contested the fact that Russellville ordinances applied and attached a plat of the sewage site to its motion for summary judgment. There was no ruling by the trial court on this issue. Whether the Dover sewage facility is subject to Russellville’s ordinances on large-scale developments is a disputed issue of fact which is material and which is unresolved. Summary judgment is not appropriate where material issues of fact remain to be decided. Ark. R. Civ. P. 56(c). Flence, appellees’ argument of an alternative basis for affirming summary judgment has no merit.

We reverse the trial court’s decree based on Act 1336 which enjoins Dover from continuing construction of the sewage-treatment facility and remand for an order consistent with this opinion.

Reversed and remanded.

Glaze, J., concurs solely on the basis that Act 1336 is not applicable.


author: Annabelle Clinton Imber, Justice.

text:
    Roger HAASE v. C. Wayne STARNES, M.D.
    98-1483
    987 S.W.2d 704
    Supreme Court of Arkansas
    Opinion delivered April 8, 1999

      Larry J. Hartsfield, for appellant.

      The Trammell Law Firm, by: Gill A. Rogers, for appellee.
   Annabelle Clinton Imber, Justice.

This is the second appeal in this action for breach of express warranty. The appellant, Mr. Roger Haase, filed a medical malpractice action against Dr. C. Wayne Starnes. Dr. Starnes holds himself out to be a specialist in hair transplant and scalp-reduction surgery. In his complaint, Mr. Haase alleged that Dr. Starnes advertised, “We guarantee you a full, growing head of hair for the rest of your life,” and “Transplants guaranteed to grow for the rest of your life.” Mr. Haase also alleged that, as a result of his reliance on the advertisements, he contracted with Dr. Starnes to perform a series of hair transplants, grafts, and scalp reductions, and that during the course of the treatments, his scalp became infected, which caused a “permanent scar on his head which is incapable of sustaining transplants.” He concluded by alleging that Dr. Starnes breached the “representations and warranties” contained in his advertisements.

On the day of trial, prior to impaneling a jury, Dr. Starnes orally moved to exclude any evidence pertaining to the cost of maintaining artificial hairpieces over the course of Mr. Haase’s lifetime, arguing that this evidence was not the proper measure of damages for breach of warranty. The trial court granted the motion in limine and excluded the evidence. Mr. Haase then announced he could not proceed to trial without the excluded evidence and moved for an interlocutory appeal. The trial court granted the motion and entered a judgment dismissing Mr. Haase’s cause of action. Citing Mr. Haase’s contention that the trial court’s evidentiary ruling was dispositive of the case, the judgment stated it was a final judgment pursuant to Ark. R. Civ. P. 54(b).

Although the parties did not raise the nonappealableorder issue, it is well settled that it is our duty to determine that this court has jurisdiction. See Associates Fin. Servs. Co. v. Crawford County Mem. Hosp., 297 Ark. 14, 759 S.W.2d 210 (1988). For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. See Ark. R. App. P.—Civ. 2(a) (listing nine types of judgments, orders, or decrees from which an appeal may be taken); Doe v. Union Pac. R.R., 323 Ark. 237, 914 S.W.2d 312 (1996). Further, Rule 54(b) does not obviate the requirement of finality, but instead merely provides that a judgment which is final as to less than all of the litigants or the claims is subject to appeal in accordance with the conditions recited in the rule. See Ark. R. Civ. P. 54(b); see also John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991).

We cannot address the arguments raised on appeal because the judgment appealed from, its recitations notwithstanding, is not a final judgment. It merely determines the admissibility of evidence pursuant to a motion in limine prior to trial. Evidentiary rulings are not appealable orders. See Story v. Hodges, 272 Ark. 365, 614 S.W.2d 506 (1981). Furthermore, we have held that an order which merely determines liability and defers a determination as to the damages is not final. See John Cheeseman Trucking, Inc., supra. In the same vein, we hold that this order, which merely determines the admissibility of evidence and defers a determination as to liability and damages, is not final. To allow an appeal at this point would only invite two more appeals where one would suffice. Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984).

Appeal dismissed.

       In the first appeal, we held that the trial court erred in granting summary judgment to Dr. Starnes because Ark. Code Ann. § 16-14-206 (1987) does not apply to actions for medical injury based on breach of express warranty where the issue is whether the medical-care provider guaranteed the results. Haase v. Starnes, M.D., 323 Ark. 263, 915 S.W.2d 675 (1996).


text:
    James I. JOHNSON v. STATE of Arkansas
    CR 98-1250
    987 S.W.2d 694
    Supreme Court of Arkansas
    Opinion delivered April 8, 1999
    [Petition for rehearing denied May 13, 1999.]

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

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

This case involves a conviction for DWI, third offense. Mr. James I. Johnson was convicted in municipal court of DWI third offense and appealed that conviction to the Cleburne County Circuit Court. After the trial court concluded that there was no speedy-trial violation, Mr. Johnson waived his right to a jury trial and a bench trial ensued. The trial court denied Mr. Johnson’s request to certify a witness as an expert and denied his motion for dismissal based upon the insufficiency of the evidence. At the conclusion of the trial, the trial court personally inspected the location of the arrest. The trial court then convicted Mr. Johnson of DWI, third offense. On appeal to the Arkansas Court of Appeals, Mr. Johnson asserted that his right to a speedy jury trial had been denied; that there was insufficient evidence to convict; that the trial court erred in refusing to certify his witness as an expert; and that the trial court failed to properly record the visit to the location of arrest. The Court of Appeals affirmed the conviction, and we accepted review. See Johnson v. Arkansas, Op. No. CACR 97-564 (September 23, 1998).

On September 1, 1995, Mr. Johnson was arrested for driving while intoxicated. He was charged with DWI, third offense, and refusal to take a Breathalyzer test. Upon motion by counsel, these charges were tried separately. Mr. Johnson was found guilty in the Heber Springs Municipal Court of DWI, third offense, on January 23, 1996, and appealed that conviction to the Cleburne County Circuit Court.

The circuit court trial was originally scheduled to take place on April 29, 1996, seven months after Mr. Johnson’s initial arrest. However, two continuances were granted at Mr. Johnson’s request, with a de novo trial finally taking place on September 13, 1996, one year and twelve days from the date of the Mr. Johnson’s arrest. At the trial, Mr. Johnson moved to dismiss for violation of his right to a speedy trial, which motion was denied by the trial court. Mr. Johnson then waived his right to a jury trial, and the court went forward with a bench trial on the DWI charge.

Arkansas State Trooper Dudley Lemon testified that he observed Mr. Johnson driving erratically and left of the center fine, and proceeded to pull him over. When Mr. Johnson exited his truck, Trooper Lemon smelled the odor of alcohol about Mr. Johnson’s person and noticed that his eyes were “quite” bloodshot. He also noticed that Mr. Johnson was unable to support himself or stand upright without leaning against the truck and that his speech was very slow and deliberate, as though he was trying to prevent slurring. According to Trooper Lemon, Mr. Johnson attempted to stand at one point, but fell back to his left. Trooper Lemon demonstrated the one-leg-stand field-sobriety test and then asked Mr. Johnson if he would have any problems performing the test. Mr. Johnson responded by saying, “Dudley, don’t do this to me.” Trooper Lemon proceeded to arrest Mr. Johnson for DWI because Mr. Johnson “had ingested enough alcohol that it had affected his driving abilities, his judgment, to such an extent that he very well could cause injury to himself or other persons.” Trooper Lemon reviewed his credentials as a certified law enforcement officer, including twenty-two years with the Arkansas State Police and at least 200 to 300 DWI arrests. Trooper Lemon also testified that Mr. Johnson was offered two more opportunities to perform a field-sobriety test at the Cleburne County Detention Center, but his only response was to request an attorney.

Mr. Johnson’s testimony contradicted that of Trooper Lemon on several points. Mr. Johnson asserted that he had not consumed any alcohol at the time of his arrest. He further testified that Trooper Lemon offered him only one opportunity to take a field sobriety test and that the offer occurred after he was arrested. Finally, in explanation of his statement “Dudley, don’t do this to me,” Mr. Johnson stated that he was in a hurry to get to the golf course he managed, where a golf tournament was scheduled that evening.

During the trial, Mr. Johnson sought to have Mr. Joe Jones testify as an expert in the areas of DWI arrest procedures and law enforcement ethics. Mr. Jones admitted on cross-examination that he had arrested less than half-a-dozen DWI suspects in his entire career, and that his certification as a law enforcement officer lapsed eight to ten years earlier. He also admitted that he had not received any specialized training in DWI arrest procedures or law enforcement ethics in over twenty years. Upon inquiry by the trial court, Mr. Jones conceded that he had never been qualified as an expert witness in any court. The trial court denied Mr. Johnson’s request to qualify Mr. Jones as an expert witness.

At the close of evidence, the trial judge announced that he wished to visit the site of the arrest. Mr. Johnson’s attorney objected to any officer accompanying the judge to the site, but otherwise both parties did not object to the visit. The trial judge invited both attorneys to follow him to the site, but both declined the offer. The record reflects that the trial judge recessed court for twenty minutes while he drove alone to the location of the arrest. Upon returning, the trial judge recited into the record where he had gone and the route he took.

The trial court found Mr. Johnson guilty of DWI, third offense, and judgment was entered on December 2, 1996. The Court of Appeals affirmed the conviction, see Johnson v. State, supra, concluding that the testimony of Trooper Lemon and the failure to submit to testing was enough evidence to uphold the conviction. The Court of Appeals further concluded that the trial court did not err in refusing to allow expert testimony by Mr. Jones, and that Mr. Johnson failed to preserve the argument concerning a verbatim record and his constitutional challenge. We accepted review and affirm.

I. Sufficiency of the Evidence

Mr. Johnson argues that there was insufficient evidence of intoxication to support a conviction for DWI. Specifically, he asserts that the only evidence of intoxication was the testimony by Trooper Lemon and the jailer at the Cleburne County Detention Center that Mr. Johnson “had an odor of alcohol about him.” Where there is a challenge to the sufficiency of the evidence, we must review that point prior to considering any other alleged trial errors. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the State, or the appellee, and consider only that evidence tending to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).

Arkansas Code Annotated section 6-65-103 (Repl. 1997) provides:

(a) It is unlawful and punishable as provided in this act for any person who is too intoxicated to operate or be in actual physical control of a motor vehicle.

“Intoxicated” is defined by Ark. Code Ann. § 5-65-102(1) (Repl. 1997), which states:

(1) “Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians [.]

The observations of police officers with regard to the smell of alcohol and actions consistent with intoxication can constitute competent evidence to support a DWI charge. State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996); Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992). Opinion testimony regarding intoxication is admissible. Johnson, supra; Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984).

Viewing the evidence in the light most favorable to the State, the evidence was sufficient to support the trial court’s finding that Mr. Johnson was intoxicated. Trooper Lemon testified that Mr. Johnson was driving erratically and left of center and smelled of alcohol. He further testified that Mr. Johnson was unable to stand upright without support, was unsteady on his feet, and had bloodshot eyes. The evidence also established that Mr. Johnson refused to submit to breath or field-sobriety tests. The refusal to be tested is admissible evidence on the issue of intoxication and may indicate the defendant’s fear of the results of the test and the consciousness of guilt. Medlock v. State, 332 Ark. 106, 964 S.W.2d 196 (1998). Finally, Mr. Johnson’s statement “Dudley, don’t do this to me,” could be construed as inculpatory. While Mr. Johnson argues that his testimony refuted Trooper Lemon’s testimony regarding intoxication, it is well settled that it is the province of the fact-finder to determine the weight of evidence and the credibility of witnesses. Johnson, supra; Jones v. State, 305 Ark. 95, 805 S.W.2d 642 (1991). We therefore defer to the trial court’s ascertainment of the credibility of witnesses and affirm on this point.

II. Speedy-Trial Rights

Mr. Johnson next argues that he was denied his right to a speedy jury trial because he did not receive an opportunity for a jury trial until more than one year after he was arrested. We first note that his argument with regard to a jury trial is not preserved as he waived the right to a jury trial. Where a defendant acknowledges his right to a jury, and the defendant’s attorney subsequently waives that right in open court on the record and in the defendant’s presence, with a specific request that the judge hear the case, a valid waiver is accomplished. See Ark. R. Crim. P. 31.2; Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993); Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992). The record establishes that Mr. Johnson was present when the waiver was made, and was aware of his right to a jury trial at the time the waiver was made. Thus, he waived his right to a jury trial.

Even if Mr. Johnson had not waived his right to a trial by jury, we have made it clear that there is no entitlement to a jury trial in municipal court. Ark. Code Ann. § 16-17-703 (Repl. 1994); State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995); see also Ludwig v. Massachusetts, 427 U.S. 618 (1976). Thus, Mr. Johnson was not entitled to a jury trial in municipal court.

Finally, Mr. Johnson asserts that the speedy trial clock should begin running on the date of the arrest, rather than on the date the appeal was perfected to circuit court. However, we have held that when an appeal is taken from a municipal court decision to the circuit court, the time for speedy trial begins to run from the day the appeal is filed in circuit court. McBride v. State, 297 Ark. 410, 762 S.W.2d 785 (1989). Mr. Johnson’s trial clearly occurred within one year of the perfection of his appeal to the circuit court. In any event, 137 days would-be assessed against Mr. Johnson as a result of two continuances granted at his request. See Ark. R. Cr. P. 28.3. If the speedy-trial clock were to start ticking on the date of the arrest, it is clear that the trial occurred within one year for purposes of Rule 28.1(c). We conclude that Mr. Johnson’s right to a speedy trial was not violated.

III. Expert Witness Testimony

In his next argument Mr. Johnson contends that the trial court erred by refusing to rule that Mr. Joe Jones was qualified to testify as an expert witness. The qualification of an expert witness is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995); Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994). If there is some reasonable basis to find that the witness has knowledge of a subject beyond that of ordinary knowledge then the witness may be qualified as an expert. Stout, supra; Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986). The general test of admissibility of expert testimony is whether it will assist the trier of fact in understanding the evidence or determining a fact in issue or, stated differendy, whether the trier of fact can receive “appreciable help” from such testimony. Stout, supra; Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992).

Mr. Johnson proffered Mr. Joe Jones as an expert witness in the areas of DWI arrest procedures and law enforcement ethics. However, Mr. Jones had not received training in the areas of DWI arrest procedures or law enforcement ethics in over twenty years, and had not been certified as a law enforcement officer for up to ten years. Hence, the trial court could have concluded that he would not receive “appreciable help” from Mr. Jones’s testimony.

Mr. Johnson suggests that Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991), supports his argument that it was error for the trial court to refuse to certify Mr. Jones as an expert. In Sessions, the doctor tendered as an expert had over twenty years experience as a medical practitioner, but had not practiced emergency room medicine in ten years. Id. Because the issues about which the doctor was to testify were “basic to the science of medicine,” as distinguished from specialized emergency room practice, we concluded that it was error for the trial court to exclude his testimony. Id. In this case, however, Mr. Johnson sought to elicit expert testimony from Mr. Jones about certain specific areas of law enforcement: DWI arrest procedures and law enforcement ethics. Mr. Jones admitted that he had received no training in these areas for a considerable amount of time. Sessions is thus inapposite, and we hold that the trial court did not abuse its discretion in refusing to qualify Mr. Jones as an expert witness.

IV. Verbatim Record Requirement

For his final point on appeal, Mr. Johnson asserts that the trial court committed reversible error by failing to make a verbatim record of his visit to the location of the arrest. We hold that an appropriate record was made, and affirm on this point as well.

Our Administrative Order No. 4 provides:

Unless waived on the record by the parties, it shall be the duty of any circuit, chancery, or probate court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it.

See also Ark. Code Ann. § 16-13-510 (Repl. 1994). It is clear that personal inspections of property are permissible and proper as an aid to a better understanding by the fact-finder of what witnesses had testified to, so long as the judge notifies the parties prior to the inspection and limits the inspection to that purpose. See Potter v. Bryant Funeral Home, 307 Ark. 142, 817 S.W.2d 882 (1991); Mitcham v. Temple, 215 Ark. 850, 223 S.W.2d 817 (1949); Clark v. Clark, 4 Ark. App. 153, 632 S.W.2d 432 (1982). We have also held that a judge’s personal observations of the site are not considered evidence of facts. See Potter, supra; Mitcham, supra. Hence, such observations by the fact-finder should not be included in the record.

The record here reflects that the trial judge informed the parties of his intention to visit the location of the arrest. Neither party objected to the viewing, although defense counsel objected to any officer accompanying the judge to the location. Both attorneys were invited to follow the judge to the site, but both declined the offer. The judge drove to the arrest site alone and, upon returning to the courtroom, made a record of where he went and the route taken. Neither party objected to the manner in which the trial court made a record of the viewing. Pursuant to our holdings in Potter, supra, and Mitcham, supra, we conclude that the trial court’s record of his visit to the arrest site complied with Administrative Order No. 4 and Ark. Code Ann. § 16-13-510.

Affirmed.


author: Lavenski R. Smith, Justice. Robert L. Brown, Justice,

text:
    Gina GEORGE v. JEFFERSON HOSPITAL ASSOCIATION, INC., d/b/a Jefferson Regional Medical Center, and St. Paul Fire & Marine Insurance Company
    98-1134
    987 S.W.2d 710
    Supreme Court of Arkansas
    Opinion delivered April 8, 1999
    [Petition for rehearing denied May 13, 1999.]

      Morgan Welch & Associates, by: Morgan E. Welch, for appellant.

      Bridges, Young, Matthews & Drake PLC, by: Stephen A. Matthews, for appellees.

       Brown, J., would grant.

   Lavenski R. Smith, Justice.

This is a medical malpractice action. Appellant, Gina George, appeals grants of summary judgment by the Grant County Circuit Court in favor of appellees, Jefferson Hospital Association, Inc. (JRMC), and St. Paul Fire & Marine Insurance Company (St. Paul), its insurance carrier. The trial court ruled that the doctrine of charitable immunity entitled JRMC to summary judgment and that the statute of limitations on medical malpractice actions entitled St. Paul to summary judgment as well. We agree and affirm. This case was certified to this Court on March 3, 1999, pursuant to Arkansas Supreme Court Rule 1-2(g).

On or about September 3, 1994, appellant, while hospitalized at JRMC for caesarean section, received the drug Parlodel as prescribed by her physician, Dr. Reid G. Pierce, to prevent production of breast milk. JRMC discharged appellant on September 4, 1994. She continued taking the medication as prescribed. The next day, September 5, 1994, after experiencing what seemed like seizures, George was readmitted to the hospital. She alleges this resulted in serious physical harm. She contends that the symptoms directly resulted from the medication Parlodel. She also contends that the negligence of the physician, hospital, and drug manufacturer caused her injury. Apparendy, the medication had been withdrawn from the market in mid-August 1994, but notice of the recall had not been given by the manufacturer, Sandoz Pharmaceutical Corporation (Sandoz), to doctors and hospitals, including the defendants in this action, prior to its prescription by Dr. Pierce to appellant.

On August 29, 1996, appellant filed her complaint against JRMC, Dr. Pierce, and Sandoz. Appellee, St. Paul, provided appellee, JRJVIC, a defense pursuant to a policy of insurance JRMC had purchased. In February of 1997, appellee moved for summary judgment on the basis of the doctrine of charitable immunity. Appellant contended that genuine fact issues existed which would make summary judgment inappropriate. Appellant relied on expert witnesses’ interpretation of data about JRMC’s structure and operation obtained during discovery. George asserted that a trial was necessary to determine whether JRMC sufficiently met the requirements of a charitable organization in order to raise the shield of immunity. Appellant engaged in extensive discovery to obtain facts relative to JRJVIC’s asserted charitable status. The trial court reviewed the pleadings, affidavits, and arguments of the parties and ruled on June 27, 1998, that although some issues of fact might remain, summary judgment was still appropriate because reasonable minds could not differ as to the charitable status of JRMC.

The court also granted summary judgment to JRMC’s insurer, St. Paul’s Fire and Marine Insurance Company, on June 12, 1998. The court did so on the basis of the two-year statute of limitations on medical malpractice actions. Appellant filed her claim against JRMC within two years of her injury. However, she did not file a claim against the insurer directly until January 26, 1998, when she amended her complaint against JRMC. Appellant contends the court erred in granting summary judgment because its claim against St. Paul should be considered to have been filed as of August 29, 1996, under the relation-back provision of Ark. R. Civ. P. 15(c).

Standard of Review

The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entidement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.; Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997); Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998). After reviewing undisputed facts, summary judgment should be denied if under the evidence reasonable men might reach different conclusions from the undisputed facts. See, Leigh Winham, Inc. v. Reynolds Ins. Agency, 279 Ark. 317, 651 S.W.2d 74 (1983).

Charitable Immunity

The doctrine of charitable immunity has over a ninety-year history in Arkansas jurisprudence. Grissom v. Hill, 17 Ark. 483 (1856); Hot Springs School District v. Sisters of Mercy, 84 Ark. 497 (1907). The essence of the doctrine is that agencies, trusts, etc., created and maintained exclusively for charity may not have their assets diminished by execution in favor of one injured by acts of persons charged with duties under the agency or trust. Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953). Through the years we have examined the doctrine in detail, finding it applicable to some entities claiming charitable-entity status and inapplicable to others. The doctrine obviously favors charities and results in a limitation of potentially responsible persons whom an injured party may sue. We, therefore, give the doctrine a very narrow construction. Williams v. Jefferson Hospital Association, Inc., 246 Ark. 1231, 442 S.W.2d 243 (1969). But applying it narrowly does not mean that we will avoid its use in any appropriate circumstance.

In a recent case considering charitable immunity, we adopted eight factors for courts to review to aid in determining whether charitable immunity applies to a given set of facts. Masterson v. Stambuck, 321 Ark. 391, 902 S.W.2d 803 (1995). These factors are illustrative, not exhaustive, and no single factor is dis-positive of charitable status. Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997). These factors include: (1) whether the organization’s charter limits it to charitable or eleemosynary purposes; (2) whether the organization’s charter contains a “not-for-profit” limitation; (3) whether the organization’s goal is to break even; (4) whether the organization earned a profit; (5) whether any profit or surplus must be used for charitable or eleemosynary purposes; (6) whether the organization depends on contributions and donations for its existence; (7) whether the organization provides its services free of charge to those unable to pay; and (8) whether the directors and officers receive compensation. Masterson, supra, at 401.

Of the eight factors listed above, three are clearly established based upon evidence in the record. Those three are 1, 2, and 7. The first and second are perhaps the easiest of the factors to demonstrate as they are merely a matter of possessing corporate documentation reflecting nonprofit and charitable character. This, JRMC has done. Appellant does not even contest the existence of these qualities.

JRMC satisfies the seventh factor as it does provide services free of charge to those who cannot pay. JRMC’s response to Plaintiffs Interrogatory 48 asserts its services are available to those who are not pecuniarily able. Patient resources are evaluated, and those whose income falls below the federal poverty line and who have limited assets can have their bills written off. Appellant counters that JRMC only established clear guidelines for charitable cases since 1996. However, there is nothing which indicates the program did not exist prior to this more definitive formalization. As to the fourth, fifth, and eighth, appellant contends that these are all questions of fact and must therefore be tried rather than resolved on summary judgment. We disagree. While there may be fact issues involved, they are not matters of disputed fact. Rather, they are differing legal interpretations of undisputed facts. In such cases, an appellate court should grant summary judgment where reasonable persons would not reach different conclusions based upon those undisputed facts. Leigh Winham, Inc. v. Reynolds Ins. Agency, 279 Ark. 317, 651 S.W.2d 74 (1983). When each of the remaining Masterson factors are analyzed with the relevant undisputed facts, JRMC’s charitable status is established.

Factors three and four inquire whether the hospital seeks to “break even or earn a profit.” It is undisputed that JRMC does not try to strictly break even, but, in fact, does seek to have some “surplus” or “profit.” However, trying to break even is only one factor and certainly not a dispositive one when applied to a hospital. Modern hospitals are complex and expensive, technological, economic and medical enterprises that can ill afford to come short of even in their financial integrity. Running a small surplus should not be seen as totally incompatible with charitable status in such cases. It is undisputed that JRMC’s surplus or profit was in the range of 4% to 5%, far below that of for-profit hospitals which typically seek profit margins in the 15% to 20% range. The existence of profit is not determinative of charitable status. In 1961, a $600,000 surplus did not destroy a hospital’s charitable status where the funds anticipated use was to expand and improve its facilities. Helton, supra at 79.

The fifth factor examines what an entity that does produce a surplus actually does with it. Does it inure to the benefit of individuals, or is it returned to the enterprise to further its charitable purposes? Based upon the undisputed facts in the record, we hold that JRMC’s use of its surplus is consistent with and in furtherance of its overall charitable purposes. JRMC has ownership interests in for-profit entities including a long-term facility (Davis Life Care); a collection agency and physician management company (Jefferson Management Services); a corporation that manages office space that it sells and leases (Jefferson Regional Medical Center Development); and diagnostic imaging services (Jefferson Health Affiliates). These entities, with one exception, are owned entirely by JRMC, and all profits or dividends are used in furtherance of the hospital’s asserted purpose, i.e., to provide health care to all who need it. We recognized as far back as 1906 that a charitable hospital could charge for its services so long as the money thus received is devoted altogether to the charitable object which the institution is intended to further. Hot Springs School District, supra, at 500.

Factor six asks whether the entity is dependent upon donations and contributions for its existence. The undisputed fact in the instant case is that JRMC does not depend for its existence exclusively on donations. Its financial obligations met by donation is in the range of 6%. Flowever, as previously stated, a modern hospital, with rare exception, would find it extremely difficult to operate wholly or predominately on charitable donations. While we recognize that if JRMC did so operate this would be an even clearer case of charitable immunity, its financial and organizational structure as presented do not negate its overriding charitable purpose.

The final factor concerns compensation to directors and officers. It is an undisputed fact that JRMC’s chief executive officer and chief financial officer are compensated at $225,000 and $170,000 per year respectively for their services. They also can receive bonuses based in part upon surplus achieved. Yet, it is not necessary for charitable organizations to have entirely volunteer staff and management. JRMC’s size and complexity make knowledgeable, well-qualified personnel essential. Such persons do not readily volunteer their services or serve at rates of compensation markedly lower than market rates. In the case of JRMC, we hold that minimal bonus compensation to officers and directors does not put the hospital in the position of being maintained for the private gain, profit, or advantage of its organizers.

Based upon a review of the totality of relevant facts and circumstances, we hold that JRMC meets the requirements of a charitable entity for purposes of asserting the defense of the charitable-immunity doctrine. We also hold that fair-minded persons presented with the same facts would reach the same conclusion. Permitting hospitals such as JRMC to raise this defense may seem harsh to injured parties, but our laws provide a remedy in such cases whereby the entity’s insurance carrier may be sued directly. Ark. Code Ann. § 23-79-210.

Statute of Limitation

In the instant case, appellant filed such a direct action against JRMC’s carrier, St. Paul. Unfortunately, it did so by amending its complaint against JRMC in January of 1998. The original complaint was filed in August 1996, just within the applicable statute of limitations. The only means by which appellant’s claim against St. Paul could avoid being time-barred would be if it related back to August 1996, as an amendment to its August 1996 complaint under the provisions of Ark. R. Civ. P. 15(c). The trial court ruled that it did not and granted summary judgment to St. Paul on June 8, 1998, following a May 26, 1998 hearing. We agree with the trial court and affirm.

Rule 15(c) [AMENDED AND SUPPLEMENTAL PLEADINGS] provides:

(c) Relation Back of Amendments: An amendment of a pleading relates back to the date of the original pleading when:
(1) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, hut for a mistake concerning the identity of the proper party, the action would have been brought against the party.

(Emphasis addéd.)

In order for appellant to avail herself of Rule 15(c)’s relation-back provision, the facts must show four things: (1) that the claim must have arisen out of the conduct set forth in the original pleading; (2) St. Paul must have received such notice of the institution of the action that it would not be prejudiced in maintaining defense on the merits; (3) St. Paul must have known, or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against it; and (4) the second and third requirements must have been filled within 120 days from August 29, 1996, when the original complaint was filed.

Appellant meets the first and second requirements easily as the events leading to the claim are identical. Additionally, St. Paul had notice of the action from its inception and indeed has provided JRMC’s defense so no prejudice would result from its becoming a party. However, the inquiry does not end there. George must also establish that St. Paul knew that George’s omission of it from the complaint was a mistake of identity as to the proper party. This, appellant has not done. From the facts presented to the trial court and the arguments before this court, it is apparent that the mistake of appellant was not as to St. Paul’s identity but in its decision to not file immediately against the insurer as well as the hospital. Appellant does not contend she did not have the correct identity for the insurance company. Appellant argues instead that she believed suing St. Paul prior to judicial determination of its charitable status was legally perilous. Appellant believed it could have resulted in the dismissal of both actions in a kind of legal “catch-22.” This argument is meritless. Appellant could have sued both initially and through alternative pleading not have jeopardized her claim against either the hospital or its insurer. This court’s decision in Harvill v. Community Methodist Hosp. Assn., 302 Ark. 39, 786 S.W.2d 577 (1990), is dispositive of this issue. There, as here, appellant sought relation back under Rule 15(c) contending a mistake of identity had occurred. The court construed the meaning of “mistake concerning identity” relying on federal cases construing the similar federal provision. This court held that what the appellant contended was a mistake of identity was really a conscious and deliberate strategical decision. Id. at 43. In the instant case, St. Paul had no reason to believe that George was mistaken as to its identity as JRMC’s insurance company. It could only presume that appellant’s litigation decision not to sue it was a purposeful calculation, mistaken perhaps, as to its consequence but not as to its choice of parties. The trial court’s decision is accordingly affirmed.

Affirmed.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. In 1996, Jefferson Hospital Association, Inc., d/b/a Jefferson Regional Medical Center (“JRMC”), had a positive five-year surplus in excess of $5 million. It paid its chief executive officer a quarter of a million dollars in salary plus a bonus based on job performance. It owned outright or invested in several for-profit businesses, including a collection agency and management agency for physicians known as Jefferson Management Services, a managed care organization known as Arkansas Preferred Provider Organization, a diagnostic imaging center named Jefferson Health Affiliates, and a business for selling, leasing, and managing office space for physicians named Jefferson Regional Medical Development. It carried liability insurance for potential medical malpractice with St. Paul Fire & Marine Insurance Company. It did not have established guidelines for free care until two years after the negligence alleged by Gina George occurred. Based on the above, JRJV1C failed to satisfy several of the eight factors relied upon by the majority to determine charitable immunity. At the very least, there were fact questions raised by Gina George’s economist, Dr. Charles Venus, who filed an affidavit in this case in opposition to summary judgment. He questioned the amount of profit earned by JRMC and charitable care offered, both of which go to the very heart of whether charitable immunity should be afforded.

We are one of a distinct minority of states that still cling to the defense of charitable immunity, even though the original justification for charitable immunity —• protection of funds given to the charity from judgments — has long since become outmoded. See Restatement of Torts Second § 895E, p. 420; “The Quality of Mercy: ‘Charitable Torts’ and their Continuing Immunity.” 100 Harvard Law Review 1382 (1987). In retaining the defense, we have made it clear, as the majority states, that we will give the doctrine a very narrow construction. See Williams v. Jefferson Hospital Association, Inc., 246 Ark. 1231, 442 S.W.2d 243 (1969).

The majority, however, does not follow its own admonishment and instead gives the charitable-immunity defense in this case a very broad application. It concludes that there are no factual issues raised in a case fraught with factual questions, including what is the extent of the profit realized by JRMC and what is the extent of its charitable care? A corollary fact question is whether JRMC provides that write-offs for the difference between Medicaid benefits and the actual cost of care and write-offs for bad debt qualify as charity? Does the investment of JRMC in its for-profit subsidiaries affect its charitable status? What about the fact that 94% of its revenue comes from patient pay with only 5% or 6% derived from public or private gifts?

When there are factual issues involved in a charitable immunity defense, this court has held that the matter is for the jury to resolve. See Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953). In Croswell, the Crossett Health Center was sued because one of its doctors allegedly left a small piece of suture wire in the plaintiff s intestine. We concluded: “But in the case at bar there are factors sufficient for the jury to find that the medical center was not a trust involving dedication of its property to the public.” 221 Ark. at 883, 256 S.W.2d at 552. The relevant factors for determining charitable immunity may have changed since Croswell, but when factual issues are entwined within the pertinent factors, the jury should decide the matter.

The majority appears to decide the issue based on the fact that JRMC issues no capital stock and pays no dividends. But what about bonuses to its officers for job performance? That certainly is profit or gain to its principals of a different sort. Moreover, if issuing capital stock and paying dividends decide the issue, why have the other factors to consider?

I would reverse the summary judgment and remand for trial.

       Ark. Code Ann. § 16-114-203.

       The following are cases in which this court held charitable immunity applicable: Fordyce v. Woman’s Christian National Library Association, 79 Ark. 550 (1906); Hot Springs School District v. Sisters of Mercy, 84 Ark. 497 (1907); Cabbiness v. City of North Little Rock, 228 Ark. 356, 307 S.W. 2d 529 (1957); Helton v. Sisters of Mercy of St. Joseph’s Hospital, 234 Ark. 76, 351 S.W. 2d 129 (1961); Williams v. Jefferson Hospital Association, Inc. 246 Ark. 1231, 442 S.W. 2d 243 (1969); LeMay v. Trinity Lutheran Church, 248 Ark. 119, 450 S.W. 2d 297 (1970).
      The following are cases in which this court held charitable immunity inapplicable: Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W. 2d 548 (1953); J.W. Resort, Inc. v. First American National Bank, 3 Ark. App. 290, 625 S.W. 2d 557 (1981); Masterson v. Stambuck, 321 Ark. 391, 902 S.W. 2d 803 (1995); Ouachita Wilderness Institute v. Mergen, 329 Ark. 405, 947 S.W. 2d 780 (1997).

       These factors were adopted from those stated in a Virginia federal court case. Davidson v. Colonial Williamsburg Foundation, 817 F. Supp. 611, 614 (E.D. Va. 1993).

        Trace X Chemical v. Gulf Oil Chemical Co., 724 F.2d 68 (8th Cir. 1983); Russ v. Ratliff, 578 F.2d, 221 (8th Cir. 1978).