author: Darrell Hickman, Justice,

text:
    OAKLAWN BANK v. Robert C. BALDWIN, et al.
    85-307
    709 S.W.2d 91
    Supreme Court of Arkansas
    Opinion delivered May 19, 1986

      Atchley, Russell, Waldrop & Hlavinka, by: Charles J. Hlavinka, for appellant.

      Honey & Rodgers, for appellees.
   Darrell Hickman, Justice,

This is a conversion case. Oaklawn Bank, a Texarkana, Texas bank hired a professional to repossess a pick-up truck from Robert Baldwin, because Baldwin was delinquent in his payments. Baldwin and three others, Ellen Young, Emanuel Baldwin and Carl Baldwin, sued the bank for conversion of personal property which was located in the truck at the time of repossession. The case was tried without a jury. The judge found the bank had wrongfully repossessed the truck and converted the personal property. No award was made to Robert Baldwin, that question being deferred. But a judgment was entered for compensatory damages totaling $941.37: Ellen Young $874.37, Emanuel Baldwin, $22.00, and Carl Baldwin, $45.00. Punitive damages in the amount of $10,000 were also awarded.

On appeal the bank raises six allegations of error which may be consolidated into four arguments. First, the trial court erred in finding the repossession of the truck illegal; second, the personal property in the truck was not converted by the bank; third, there is insufficient evidence to support the damages awarded to Ellen Young; and fourth, punitive damages were improperly awarded. The first and main finding of the trial court was wrong, and the case must be remanded.

The bank had tried on May 23,1984, to repossess the truck and Robert Baldwin resisted, brandishing a shotgun. Baldwin filed for bankruptcy and an automatic stay was issued by the United States Bankruptcy Court pursuant to 11 U.S.C. § 362. Despite the order, the bank hired Leslie McClendon to repossess the truck. On August 10, 1984, at approximately 4 a.m., McClendon found the truck in Robert Baldwin’s driveway. McClendon attached his wrecker to the truck and drove away without incident. He stopped shortly to be sure he had the right truck. When he was certain, he called the sheriffs office and advised them of the repossession. That office told him to return the truck. Instead, McClendon took the truck to Texarkana, Texas where it was stored on a lot belonging to Marshall Griffith. Griffith and John Johnson, an employee of the bank, inventoried the personal property in the truck. According to testimony, the sheriffs office called asking for a réturn of the truck and informing the bank that some of the property did not belong to Baldwin. The bank declined to return either. Four days later the bank, through its attorney, sent Robert Baldwin a letter stating that he could arrange for the return of the personal property by contacting John Johnson at the bank. Forty-eight items were on the list, including tools, construction equipment, radio, attache case, first aid kits, and a fire extinguisher. The property was finally returned on February 22, 1985. The appellees claimed several items were missing. Ellen Young reported the loss of a set of lady’s wedding rings and a man’s gold band; Emanuel Baldwin was missing a hammer and a nail bar; Carl Baldwin had lost electric tools, a square and a tape. These missing items were the basis of the suit for conversion.

Generally, it is not a violation of Arkansas law to repossess a vehicle from the driveway of the owner as long as it can be accomplished without a breach of the peace. Ark. Stat. Ann. § 85-9-503 (Supp. 1985); Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979). The trial judge found a trespass in this case and a willful violation of Arkansas law by the bank. This finding is not supported by the evidence. The truck was repossessed from Baldwin’s driveway. There is no evidence that McClendon entered any gates, doors, or other barricades to reach the truck. He just attached the truck to his wrecker in the dead of the night and drove away. There was no confrontation with Baldwin. He was asleep when the truck was repossessed. The repossession was accomplished without breaching the peace according to our cases. Ford Motor Credit Co. v. Herring, supra; Teeter Motor Co. v. First National Bank, 260 Ark. 764, 543 S.W.2d 938 (1976); Rogers v. Allis-Chalmers Credit Corp., 679 F.2d 138 (8th Cir. 1982); Williams v. Ford Motor Credit Co., 674 F.2d 717 (8th Cir. 1982).

The central question to our review is whether the trial judge was clearly wrong when he found the personal property of Young, Emanuel and Carl Baldwin had been converted. That means converted after it was known the truck contained personalty. This is a separate issue from the initial taking of the truck. Conversion is the “exercise of dominion over the property in violation of the rights of the owner or person entitled to possession.” Ford Motor Credit Co. v. Herring, supra.

McClendon knew when he stopped to see if the truck was the right one that it contained considerable personal property. He called the sheriffs.office to report the repossession. The sheriff told McClendon to return the truck. Someone in the sheriffs office called the bank demanding the truck and personal property be returned because some of it did not belong to Baldwin. The appellees made no personal demand for the return of the personalty, and there is no evidence that the bank was informed who, except Baldwin, owned the personalty. The bank’s attorney wrote Baldwin four days later listing the property that was found in the truck and suggested that he contact John Johnson at the bank to make arrangements for its return. The appellees filed their suit for conversion on August 23, 1984. The property was finally retrieved on February 22, 1985.

The bank contends there was no intentional violation of the appellees’ rights to the personalty. The trial judge made no specific finding there was an intentional conversion of the personalty separate from taking the truck. A finding of intentional conversion is required to support an award of punitive damages. Ford Motor Credit Co. v. Herring, supra. Since that specific finding is lacking and the trial judge undoubtedly based his finding of conversion, at least in part, on the premise the truck was wrongfully taken, the judgment must be reversed and the cause remanded for a new trial.

In view of our decision it is unnecessary to address the other questions raised.

Reversed and remanded.

Purtle, J., not participating.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Kerry HICKS v. STATE of Arkansas
    CR 85-214
    709 S.W.2d 87
    Supreme Court of Arkansas
    Opinion delivered May 19, 1986
    [Rehearing denied June 23, 1986.]

      Morgan E. Welch, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.

       Purtle, J., would grant.

   Darrell Hickman, Justice.

Kerry Hicks was convicted of the attempted rape of a ten year old girl. The jury sentenced him to 30 years'imprisonment. During an extensive hearing on Hicks’ motion for a new trial, the trial judge heard arguments about the alternative sentencing program, the Youthful Offender Act and possible expungement proceedings. The trial judge decided that Hicks did not deserve a maximum sentence but did deserve imprisonment. Hicks was sentenced to 30 years with nine years suspended as a youthful offender pursuant to Act 378 of 1975. He filed a petition for postconviction relief on April 29,1984. After a hearing, the trial judge denied any relief. It is from that denial this appeal is taken.

Two arguments are raised on appeal: (1) that counsel’s ineffectiveness at trial deprived Hicks of a fair trial, and (2) that the sentence should be reduced or a remedy fashioned to conform to the sentencing judge’s real intentions. The main argument below was that the sentence should be reduced or a remedy fashioned under Rule 37.4 so Hicks can be released.

The ineffective assistance of counsel argument contains the usual allegations of inadequacy: the failure to prepare and investigate the case, the inaccessibility of the attorney, failure to call witnesses, failure to challenge a biased juror, failure to object to the prosecutor’s remarks, failure to prepare for the hearing on the motion for a new trial, and failure to pursue an appeal. We will first consider the last allegation.

It was apparently the judgment of counsel that because Hicks was sentenced as a youthful offender, he would be released in time to attend college in the fall, some eight months later, and certainly before an appeal could be decided. So an appeal was not pursued. While both Hicks and his mother testified they wanted to appeal, admittedly they relied on counsel’s judgment and did not insist on an appeal. No evidence was offered that counsel was directed to file an appeal.

As it turns out Hicks was not released early. He claims he has not been released because he is stigmatized for the nature of his crime. No attempt was sought by Hicks to seek a belated appeal in accordance with A.R.Cr.P. Rule 36.9. Instead he sought relief under Rule 37. The requirements imposed on counsel after a notice of appeal is filed are not present in this case. Nelson v. State, 279 Ark. 362, 651 S.W.2d 98 (1983); Lewis v. State, 279 Ark. 143, 649 S.W.2d 188 (1983); Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982).

The other arguments regarding counsel’s efforts are questions regarding strategy, tactics and judgment. We must bear in mind the standard for ineffective assistance of counsel set by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). A defendant must show that counsel’s performance is so deficient and the errors made by counsel so serious that the Sixth Amendment to the Constitution is violated and that a defendant is deprived of a fair trial. To show a denial of a fair trial, prejudice must be shown. The defendant must show that there is a reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different. We adopted that standard in Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). It is the defendant’s burden to prove ineffective assistance of counsel and it is a heavy burden because counsel is presumed effective. Rightmire v. State, 275 Ark. 24, 627 S.W.2d 10 (1982).

Perhaps the most difficult case for counsel to defend is a molestation charge involving a minor. Hicks’ counsel was faced with this task, and he decided the best defense was mental disease or defect. Counsel proved that Hicks was depressed because of his father’s death and earlier had attempted suicide. Prior to the rape attempt, Hicks had taken an overdose of medication. The doctor testified that such an overdose could cause a person to go “out of his head.” Hicks testified that he could not remember what happened after he took the medicine. He was found several days later in the woods.

Hicks argues that more testimony should have been given about his troubled emotional background. He lists seven witnesses that should have been called or more extensively questioned: his brother who is a child abuse investigator/foster care case worker; a psychologist who treated him when he was 16 years old; two counselors at the Hope Mental Health Center; a psychologist who was treating Hicks at the time of the trial; and someone from the state hospital. The transcript of the trial was introduced into evidence at the Rule 37 hearing. There was considerable testimony regarding the mental condition of Hicks. The defense called Hicks’ mother and uncle, the psychologist who treated Hicks when he was ten years old, the psychologist treating Hicks at the present time, a psychologist from the state hospital, and Hicks himself. Counsel must use his own best judgment to determine which witnesses will be beneficial to his client. Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984); Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983). The extent to which a witness is questioned is a matter of trial tactics and does not justify Rule 37 relief. Hayes v. State, supra.

It is argued that a juror, a former deputy sheriff should have been challenged because he admitted having arrested Hicks’ brother. The trial judge inquired and decided the juror could serve without bias. Hicks has not proved bias or actual prejudice arose from his attorney’s failure to challenge this juror. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985). The same is true regarding the remarks made by the prosecuting attorney, which Hicks also argues were objectionable. Although the motion for a new trial was denied, the sentence was reduced due to counsel’s efforts. Hicks now argues that his counsel failed to prepare for the hearing by not filing a brief with the motion or calling witnesses at the hearing. Hayes v. State, supra.

In summary, Hicks’ arguments second guess the strategy and judgment of trial counsel. We have repeatedly held that such arguments are not the basis for reversal. Tackett v. State, supra. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984). Hicks has demonstrated no prejudice that denied him a fair trial.

The second argument is somewhat unique. That argument is the sentencing judge did not intend for Hicks to receive the sentence that he did. The record clearly demonstrates otherwise. The original judge did not dispute that Hicks received the sentence he intended to impose; he merely indicated that if he were the sitting judge he might grant the relief sought, i.e. release Hicks. That is not to say that the judge’s subjective intent would be binding in any event. He did intend to reduce the sentence imposed and did so by nine years. He intended to give Hicks the benefit of treatment under the Youthful Offender Act which he did. Under that act Hicks was eligible for parole immediately pursuant to the rules and procedures of the State Board of Pardons and Paroles. Ark. Stat. Ann. § 43-2342(c)(fi) (Supp. 1985).

Our standard of review on appeal is to determine if the judge’s findings were clearly wrong. Campbell v. State, 283 Ark. 12, 670 S.W.2d 800 (1984). That we cannot say and affirm the trial court.

Affirmed.

Purtle, J., not participating.


text:
    Thomas H. VAN BIBBER v. Sharon Gail LASTER
    85-266
    709 S.W.2d 90
    Supreme Court of Arkansas
    Opinion delivered May 19, 1986

      Thomas H. Van Bibber, Sr., for appellant.

      Matthews & Sanders, for appellee.
   Darrell Hickman, Justice.

On March 15,1984, at approximately 9 p.m., appellant, Thomas H. Van Bibber, was hit by appellee’s car while he was crossing the street. Dr. Van Bibber and his wife sued the appellee for injuries he suffered as a result of the accident. A jury verdict in favor of the appellee was returned, arid the appellants appeal pro se.

We must affirm this case because the appellants have failed to abstract any of the testimony or the pleadings which are essential for us to review their case. See Rule 9, Rules of the Arkansas Supreme Court and Court of Appeals. The fact the appellants are pro se is immaterial. Bryant v. Lockhart, 288 Ark. 302, 705 S.W.2d 9 (1986).

Affirmed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice.

text:
    George A. BROWN v. CHAPMAN FARMS, INC.
    85-280
    709 S.W.2d 404
    Supreme Court of Arkansas
    Opinion delivered May 19, 1986

      Wright, Lindsey & Jennings, for appellant.

      Smith, Smith & Duke, for appellee.
   Robert H. Dudley, Justice.

A jury found that appellant, George A. Brown, trespassed and intentionally destroyed soybeans owned by appellee, Chapman Farms, Inc. The jury awarded actual damages of $26,202.00 and punitive damages of $55,000.00. The sole issue on appeal is whether there was substantial evidence to support the award for punitive damages. We affirm the verdict.

In 1979, appellant leased 926 acres of farmland to appellee. The consideration for the lease was one-quarter of the crops of appellant, the landlord. The lease was renewed in varying forms through the 1982 bean season, but by that time, appellant and Don Chapman, the sole stockholder of appellee, were having serious disagreements. In August 1982, Don Chapman told appellant that he would not farm the land in 1983. Appellant accepted the land back, and in October or November of 1982, planted wheat on 487 of the acres. While the wheat was growing, appellant tried to find someone who would lease the farm for the 1983 bean season which runs from about June through December, depending on the weather. In late October or early November 1982, appellant told Chapman he was unable to find a tenant for the farm, could not get financing to farm it himself, and, as a result, had decided to sue Chapman to make appellee farm it again. Suit was filed, but settled in November 1982 by execution of a new lease calling for $55,000.00 cash rent to be paid before March 31,1983, with the term ending December 31,1983, or at the conclusion of the fall harvest, whichever occurred first. The lease did not provide a right of entry or a right of inspection for appellant, the landowner, but the parties did contemplate, and the lease provided, that appellant would plant wheat after appellee had harvested its 1983 beans.

In June and July 1983, appellee planted 630 acres of soybeans and insured the crop with the Federal Crop Insurance Corporation, an agency of the United States Government. Under the terms of the insurance, appellee was assured of collecting for 26 bushels of beans per acre on all acres planted before June 15 and for 20.5 bushels per acre on all acres planted before July 5.

By late October it became obvious that the amount of bushels actually produced per acre would not equal the insured amount, and the F.C.I.C. would have to pay the difference. As an example, on the acreage insured for 26 bushels, if the harvest only amounted to 10 bushels per acre, the F.C.I.C. would pay for the 16 bushel difference.

In late October, appellant told Chapman that appellee’s beans were not worth the cost of harvesting and he wanted to disk the fields (destroy the crop) in order to begin planting wheat. Chapman replied that it would be necessary to have the written permission of the F.C.I.C. in order for the insurance benefits to be collectible. Chapman also contacted his attorney to have appellant stopped from disking the beans. Chapman’s attorney was unable to contact appellant’s attorney immediately.

Shortly thereafter, on November 8, the attorneys and their clients met, and appellant agreed not to disk any more ground. In the meantime, however, between November 1 and November 6, appellant had destroyed 187 acres of beans. Witnesses from the F.C.I.C. testified that tests showed the destroyed crop would have yielded 12.3 bushels of soybeans per acre. If the beans had not been destroyed, appellee would have received from the F.C.I.C. an amount to equal the 13.7 bushel difference between the estimated 12.3 bushels actually produced and the 26.0 bushels insured. However, the F.C.I.C. refused to pay the benefits because they did not consent to the destruction of the crop. Appellee thus lost not only the value of its crop, but also the difference between that value and the insured amounts.

Appellant contends that while his actions may have been ill-advised and precipitous, they were not malicious and he should not be liable for punitive damages. The argument is without merit. Malice does not have to be established by explicit proof, but may be inferred from a conscious indifference to the consequences of the act. Olson v. Riddle, 280 Ark. 535, 659 S.W.2d 759 (1983). Exemplary damages are proper where there is an intentional violation of another’s right to his property. Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979). Here, there was an intentional violation of appellee’s right to its beans and a conscious indifference to the consequences of destroying them.

Appellant argues that he should not be liable for punitive damages because he acted under the honest, although mistaken, belief that F.C.I.C. would pay benefits to appellee. The argument is no answer for even if the F.C.I.C. had paid all possible benefits, appellee would have lost the value of the beans in the field. Appellant’s testimony on the issue was, at best, evasive. At one point, on cross-examination, he admitted that he expected appellee to “eat” the loss on the destroyed beans. He patronizingly added that by destroying the beans he saved the appellee the cost of harvesting. Viewing the evidence, and its reasonable inferences, in the light most favorable to the appellee, there was substantial evidence from which the jury could find that appellant knew appellee would be damaged by the intentional trespass and was simply indifferent to those consequences.

Affirmed.

Purtle, J., not participating.


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

text:
    Bobby Ray FRETWELL v. STATE of Arkansas
    CR 85-208
    708 S.W.2d 630
    Supreme Court of Arkansas
    Opinion delivered May 19, 1986

      William J. Velek, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was charged with capital murder. He realized that at trial the proof of guilt would be overwhelming. Under Arkansas law only a jury may impose the penalty of death, so appellant attempted to plead guilty to the court, but the prosecutor would not assent, and the court would not accept the plea. After the jury had been picked, appellant tried to plead guilty to the jury, skip the guilt or innocence phase of the trial, and proceed immediately with the sentencing phase of the bifurcated trial. The prosecutor objected and insisted on making his proof during the guilt or innocence phase. The trial court allowed the prosecutor to do so. The jury found appellant guilty and began deliberations on the penalty. After two and one-half hours, the jury reported that they stood eleven to one. The trial court erroneously gave them AMCI6004, the Allen instruction. Shortly thereafter, the judge corrected the instruction. The next day, the jury fixed punishment at death by electrocution. Appellant appeals from the sentence of death, and not from the finding of guilt. We affirm the sentence.

Appellant first contends that it was within the court’s discretion to accept his plea of guilty to the court, even without the prosecutor’s assent, and that the court’s refusal to exercise any discretion at all denied him due process and equal protection. Appellant’s first premise is fallacious, and the argument is without merit because in Arkansas a felony defendant is not entitled to a trial to the court without the assent of the prosecutor.

The Rules of Criminal Procedure are precisely in point. A.R.Cr.P. Rule 31.1 provides:

Waiver of Trial by Jury: Assent by Prosecutor.
No defendant in any criminal cause may waive a trial by jury unless the waiver is assented to by the prosecuting attorney and approved by the court.

The rule is clear. Criminal cases which require trial by jury must be so tried unless (1) waived by the defendant, (2) assented to by the prosecutor, and (3) approved by the court. The first two requirements are mandatory before the court has any discretion in the matter. Here, the second requirement, assent by the state, was not had and the court was without discretion to allow the plea. Rule 31.1 is augmented by Rule 31.4 which provides:

Waiver of Trial by Jury: Capital Felonies.

No defendant charged with a capital felony may waive either trial by jury on the issue of guilt or the right to have sentence determined by a jury unless:

(a) the court in which the cause is to be tried determines that the waiver is voluntarily and freely proffered without compulsion or coercion; and
(b) the prosecuting attorney with the permission of the court, has waived the death penalty; and
(c) the prosecuting attorney has assented to the waiver of trial by jury, and such waiver has been approved by the court.

(Emphasis added.)

Again, the rule sets out the conditions which must be met before a defendant charged with a capital felony may waive a trial by jury. The conditions are separated with the conjunctive word “and”, not by the disjunctive “or.” If all of the conditions are not met, then the court has no discretion.

The appellant similarly argues that the trial court erred in refusing to allow him to plead guilty to the jury. The trial court did not err. Under the rules set out, the prosecutor had the right to present his case to the jury.

We recognize that the rules in some states give a defendant the absolute right to waive a jury trial. See Note, 38 Texas L. Rev. 928 (1960). Arguments exist for a rule which allows the accused alone to determine the mode of trial. See Commentary to American Bar Association Standards For Criminal Justice, Standard 15-1.2 (Supp. 1986). In promulgating our rules, this Court adopted the rule which we deem to be the better one. It is in accordance with Standard 15-1.2 of the American Bar Association Standards for Criminal Justice:

Waiver of Trial by Jury
(a) Cases required to be tried by jury should be so tried unless jury trial is waived, with the consent of the prosecutor.

It is also in accordance with Rule 23(a) of the Federal Rules of Criminal Procedure. See Note, Government Consent to Waiver Of Jury Trial Under Rule 23(a) Of The Federal Rules of Criminal Procedure, 65 Yale L. J. 1032 (1956).

Appellant’s next argument concerns the Allen charge, or dynamite instruction, which was erroneously given during the sentencing phase of the trial.

Initially, the court correctly instructed the jury on the procedure for fixing the sentence, and the jury retired to the jury room at 3:12 p.m. At 5:46 p.m. they returned to the courtroom, and the foreman asked:

We have gone through the forms which you provided us, Your Honor, sir, and have made decisions, and we’re down to the punishment — the bottom line, so to speak — and we’re eleven to one. And we wondered what you would instruct us to do at this point.

Appellant’s attorney asked if they were deadlocked, and the jury foreman responded, “We did not take a vote on whether or not we were deadlocked. We have just made several test votes.” The trial judge then gave them AMCI6004, the Allen charge. The charge was obviously erroneously given since, if the jury did not unanimously agree on the death sentence, their verdict would automatically stand at life without parole and there would not be a retrial. The jury went back to the jury room at 5:52 p.m. They deliberated under the Allen charge for one hour and at 6:52 p.m. returned to the courtroom with the following request:

Your Honor, sir, we voted that we would like to go to dinner and then return for some more deliberations this evening. We are eleven to one, and Í detected a reluctance to declare that it was impossible to move from that.

The court declared a recess for dinner and instructed the jury to be back in the jury box at 8:00 p.m. When the jury returned from recess, the court corrected his earlier mistake by instructing the jury as follows:

Earlier I read you the instruction that’s commonly referred to as the dynamite instruction which tells you to decide this case if at all possible. And a part of that instruction says that the case might have to be tried again by another jury. That’s incorrect. This case will never be heard by any other jury than yourselves.
If you are unable to unanimously agree to the answers to the questions contained in form number three, then your verdict has already been and will be decided for you by the instructions included in form three.
Now, with that information, please return to the jury room and begin redeliberating.

The jury retired at 8:00 p.m. and returned at 9:20 p.m. with the following request:

The situation remains at eleven to one. The person that is the one is requesting, and the jury endorses that request — subject to your order, of course — that we be permitted to allow that person to sleep on it over night, reflect on it, pray on it and then come back in the morning sir, at your convenience and make one more attempt.

The court granted the request and directed the jury to return at 9:30 a.m. At 9:30 a.m. the next morning, the jury returned to the jury room for further deliberations and returned at 11:10 a.m. with its verdict.

The appellant argues that the erroneous reading of AMCI 6004 subjected the jury to deliberation under the pressure of coming to a unanimous decision and encouraged a penalty of death. He also argues that the court should have imposed a sentence of life without parole because the jury demonstrated its lack of unanimity by taking several votes. The appellant, in conclusion, urges this Court to reverse his sentence and find that he is entitled to be sentenced to life imprisonment without parole.

Appellant is partially correct in the first argument. Clearly, the giving of the Allen charge was erroneous as it would encourage unanimity and possibly encourage a penalty of death in order to avoid a retrial. However, the jury deliberated under the erroneous instruction only from 5:52 p.m. to 6:52 p.m. They then went to dinner, and upon returning were correctly instructed at 8:00 p.m. The fact that the jury did not change its vote during the one hour deliberation under the Allen charge demonstrates that the error was harmless. The vote changed the next day, only after the instruction was corrected, and the one juror was granted his request to “sleep on it overnight, reflect on it, pray on it and come back in the morning. . . .”

The appellant argues that the trial court should have taken the case from the jury after their preliminary votes. The argument is without merit. The jury never reported that it was deadlocked. In fact, they asked for more time. They only deliberated a total of about six and one-half hours before being able to fix the sentence. There simply is nothing to indicate that the trial judge abused his discretion in letting the jury decide the matter. There is no reversible error in any of appellant’s points of appeal.

Pursuant to Rule 11 (f) of the Rules of the Supreme Court and the Court of Appeals, the state has raised two issues, death qualified juries and double counting.

The use of death qualified juries was declared unconstitutional in Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983). The decision of the district court was affirmed by the Eighth Circuit Court of Appeals in Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985). This court, in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), and in many subsequent cases, held that such juries were constitutional. The Supreme Court of the United States ended the matter by holding that such juries are constitutional in Lockhart v. McCree, — U.S. —, 106 S.Ct. 1758 (1986).

Double counting, as explained in Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985), violates the eighth and fourteenth amendments to the United States Constitution because it allows an element of the underlying crime, pecuniary gain, to be counted again as an aggravating circumstance, and thus fails to narrow the class of persons already guilty of robbery-murder. This court has never decided the issue, and we do not now reach it because there was no objection at trial to the instructions which allowed double counting. As we said in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), “in hundreds of cases we have reiterated our fundamental rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court.” We have long held, under Rule 11 (f) and Ark. Stat. Ann. § 43-2725 (Repl. 1977), that when life is at stake, we will make our own examination of the record and reject or accept on their merits all objections made at trial, whether or not argued on appeal, but we do not consider a matter in the absence of an objection. We have made exceptions where there were egregious circumstances, such as where the trial court apparently failed to tell the jury that it had the option of imposing a life sentence. Smith v. State, 205 Ark. 1075, 172 S.W.2d 248 (1943). Appellant asks us to make such an exception in this case because:

To require an objection where there is no established legal basis for the objection, but, rather, only the hope that existing law will be changed, would require an attorney to constantly make objections any time he has an argument to change the existing law, including even those arguments which have been unsuccessful in the past.

The argument reaches the heart of the matter, for it is our intention to require one who wishes to change the law to raise the matter in the trial court and give his adversary notice of the matter and opportunity to make a timely record. To allow any other procedure would be to allow endless and untimely litigation.

Finally, we compare the wickedness, inhumanity, and heinousness of this capital case with other capital cases in order to be certain that the death sentence is not freakishly, capriciously, or whimsically applied. After such a comparison, we find no reason to alter the jury’s view that the death penalty was proper. In the very early morning, appellant and two accomplices saw a truck which they wanted to steal. It was parked beside a service station. They planned to wait until the station attendant came to work, and then take the keys and kill the attendant. They lay in wait but the attendant did not come to work. They soon located another truck outside a nearby home. They saw a man inside the house and planned to get his truck key and kill him so he could not identify them.

To complete the plan, appellant, armed with a loaded pistol, knocked on the victim’s front door. The victim answered the door knock and offered assistance. Appellant then took the victim’s money, the key to his truck, and shot him in the temple. Appellant left the victim to die and took the truck. The murder in the course of the robbery was especially egregious, and the death penalty was not freakishly or arbitrarily applied.

Affirmed.

Purtle, J., not participating.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I concur to update the history of our review of capital cases contained in my concurring opinion in Ruiz v. State, 280 Ark. 190, 193, 655 S.W.2d 441 (1983) (Hickman, J., concurring). Since Ruiz we have reviewed the death penalty in six cases. Including Fretwell’s sentence, affirmed today, we have upheld the death penalty in four cases. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), cert. denied, _ U.S. _, 104 S.Ct. 2370 (1984); Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied, — U.S. —, 105 S.Ct. 2346 (1985), petition for postconviction relief granted in part; stay of execution denied, 286 Ark. 191, 690 S.W.2d 355 (1985); Pruett v. State, 282 Ark. 304, 669 S.W.2d 186 (1984), cert. denied, 469 U.S. 963, 105 S.Ct. 362 (1984), petition for postconviction relief denied, 287 Ark. 124, 697 S.W.2d 972 (1985).

In Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983), the death sentence was reduced to life imprisonment without parole.

In another case the decision was reversed and remanded for a new trial. Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985). It has not yet been presented on a second appeal. Neither have two cases we previously reversed and remanded, before Ruiz, come before us again. Penelton v. State, 277 Ark. 225, 640 S.W.2d 795 (1982); Rhodes v. State, 276 Ark. 203, 643 S.W.2d 107 (1982). We reversed the death sentence in Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982). On retrial Harmon was found guilty of first degree murder and received a life sentence, which we affirmed at 286 Ark. 184, 690 S.W.2d 125 (1985).

During this period of time from July 18,1983, until May 12, 1986, we have reviewed 15 cases in which capital murder was the finding and the death penalty was sought but riot imposed. To date we have affirmed the death penalty for 24 persons. Fifteen are white, eight are black and one is hispanic. All are males. In none of the four recent death cases which we have affirmed can there be any doubt that the crime warranted the most severe sentence allowed by law.

In the nine years we have reviewed these cases, no decision in which we have'approved the death penalty has been reversed or modified by the United States Supreme Court. At the same time no decision in which we have affirmed the death penalty has been affirmed by the Court of Appeals for the Eighth Circuit. Recently, in Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985), the Eighth Circuit reduced Carl Albert Collins’ death sentence to life without parole because the state used one of the aggravating circumstances (murder committed for pecuniary gain), presented in the penalty phase, as one of the elements of the crime itself (that the murder was committed in the course of a robbery). In Ruiz v. Lockhart, 754 F.2d 254 (8th Cir. 1985), the Eighth Circuit reversed the district court’s denial of Paul Ruiz’s and Earl Van Denton’s petition for habeas corpus relief and remanded the case with orders that the writ be granted or the petitioners be retried. The basis for the reversal was the holding that death qualification of a jury creates a conviction prone jury. That decision was recently reversed in Lockhart v. McCree,_U.S. _, 106 S.Ct. 1758 (1986), where the United States Supreme Court held that death qualified juries are constitutional.

Several conclusions could be drawn from all these statistics. The most obvious is that the review process for death cases is far too long and involves too many courts. Are we playing legal games with capital punishment? If the review process, which is directed and controlled by the federal courts, continues to require about ten years and at least seven or eight separate reviews to approach finality, then the process is not just inefficient, it is a failure. A legal system, such as ours which fails to honestly, directly, and efficiently address legal questions of this magnitude will lose the most important foundation stone of that system — the respect of the people.

ADDENDUM

In the following cases this court has affirmed the appellants’ death sentences:

Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983) cert. denied, 466 U.S. 988, 104 S.Ct. 2370 (1984). (Rector shot and killed a policeman.)

Pruett v. State, 282 Ark. 304, 669 S.W.2d 186 (1984); cert. denied, 469 U.S. 963, 105 S.Ct. 362 (1984); petition for postconviction relief denied, 287 Ark. 124, 697 S.W.2d 972 (1985). (Pruett has been called the “mad dog killer”. He kidnapped and murdered a convenience store clerk.)

Barry Lee Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984); cert. denied, _ U.S. _, 105 S.Ct. 2346 (1985); postconviction relief granted in part, stay of execution denied, 286 Ark. 191, 690 S.W.2d 355 (1985). (Convicted of murder, rape, robbery and kidnapping. He was sentenced to die by electrocution. This court granted his petition to allow him the choice between dying by electrocution or by lethal injection.)

The court reduced the sentence from death to life without parole in Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983). (Insufficient evidence of crimes to go to the jury as aggravating circumstances in the penalty phase of Miller’s trial.)

In the following case where the appellant received a death sentence, the court reversed and remanded and on retrial the appellant was convicted of first degree murder and received a life sentence. Harmon v. State, rev’d. 277 Ark. 265, 641 S.W.2d 21 (1982); aff'd, 286 Ark. 184, 690 S.W.2d 125 (1985).

The court has reversed the following death penalty cases but they have not yet come up on appeal: Penelton v. State, 277 Ark. 225, 640 S.W.2d 795 (1982); Rhodes v. State, 276 Ark. 203, 643 S.W.2d 107 (1982); Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985).

In the following cases capital murder was charged and found, the death penalty was sought but not imposed:

Breault v. State, 280 Ark. 372, 659 S.W.2d 176 (1983); Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984); Love v. State, rev’d and rem’d, 281 Ark. 379, 664 S.W.2d 457 (1984); Cessor v. State, 282 Ark. 330, 668 S.W.2d 525 (1984); Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984); cert. denied,_U.S.__, 105 S.Ct. 1778 (1985); Owens v. State, 283 Ark. 327, 675 S.W.2d 834 (1984); Metcalf v. State, rev’d and rent’d, 284 Ark. 223, 681 S.W.2d 344 (1984); Hall v. State, 286 Ark. 52, 689 S.W.2d 524 (1985); Williams v. State, 286 Ark. 492, 696 S.W.2d 307 (1985); Sullivan v. State, 287 Ark. 6, 696 S.W.2d 709 (1985); Snell v. State, 287 Ark. 264, 698 S.W.2d 313 (1985); Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985), petition for postconviction relief denied, unpublished opinion issued April 28,1986. Shelton v. State, rev’d and rem’d, 287 Ark. 322, 699 S.W.2d 728 (1985); Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985); Holland v. State, 288 Ark. 435, 706 S.W.2d 375 (1986).


author: David Newbern, Justice.

text:
    WILSON-PUGH, INC. and Gay Gibbs TIPPS v. Honorable H.A. TAYLOR and NATIONAL BANK OF COMMERCE OF PINE BLUFF
    86-11
    709 S.W.2d 93
    Supreme Court of Arkansas
    Opinion delivered May 19, 1986

      Griffin, Rainwater & Draper, by: Richard E. Griffin, for appellant.

      Bridges, Young, Matthews, Holmes & Drake, for appellee.
   David Newbern, Justice.

A permanent writ of prohibition is sought to prohibit the Jefferson County Circuit Court from trying this conversion action. We previously granted a temporary writ. The issue is whether the holder of a security interest in a crop may bring an action for conversion of that interest in the county of his residence pursuant to Ark. Stat. Ann. § 27-611 (Supp. 1985). We hold he may not, and thus the writ is made permanent.

Craig Shackleford Farms, Inc., (Shackleford) borrowed money from appellee National Bank of Commerce of Pine Bluff (NBC). NBC obtained a security interest in Shackleford’s cotton crop. Shackleford filed bankruptcy proceedings in March, 1985. At some time in 1985 NBC learned that appellant Wilson-Pugh had written checks to Shackleford with respect to the cotton in question without including NBC as a payee. NBC alleged in its complaint that this was a sale of the cotton resulting in a conversion of their interest. Petitioner Gay Gibbs Tipps was alleged to be the bookkeeper for Wilson-Pugh and for Shackle-ford. NBC asked for compensatory and punitive damages from the petitioners, jointly and severally.

The petitioners moved to dismiss on the basis of improper venue, contending that Wilson-Pugh, a domestic corporation, has its principal place of business in Ashley County, that Gay Gibbs Tipps resides there also, that both were served there, and that there is no basis for laying venue in Jefferson County. The motion to dismiss was overruled.

Ark. Stat. Ann. § 27-611(a) (Supp. 1985) is as follows:

Any action for damages to personal property by wrongful or negligent act, whether arising from contract, tort, or conversion of personal property, may be brought either in the county where the damage occurred, or in the county where the property was converted, or in the county of residence of the person who was the owner of the property at the time the cause of action arose.

The contention of respondent NBC is that it had a sufficient ownership interest to permit venue to be properly laid in Jefferson County, the county of its residence.

Whether NBC can sustain its contention of having an ownership interest and whether it can state facts sufficient to show a conversion of that alleged interest need not be decided at this stage of the litigation. As we pointed out in FirstSouth, P.A. v. Yates, 286 Ark. 82, 689 S.W.2d 532 (1985), which thoroughly discussed the history of § 27-611, the opening words of the statute, “[a]ny action for damages to personal property . . . .” had not been changed for thirty-eight, now thirty-nine, years. In the FirstSouth case, we held the statute did not apply where a misrepresentation resulting in an investment and subsequent loss of money were alleged. We said it was not the intent of the General Assembly to permit a plaintiff alleging an injury to an intangible, or an economic injury, to bring it in his home county. We pointed out the long line of decisions holding strictly that the statute extended venue to the county in which the owner of property resides only when there was a statement of “physical damage to tangible property.”

Although it could be argued that FirstSouth is distinguishable because it was not a conversion case, and that the General Assembly, by adding “conversion” actions to § 27-611, must have intended it to apply to all conversion actions, we cannot agree. The statute remains one in which venue is prescribed for actions for damages to personal property.

If the General Assembly had intended to allow any conversion action, whether of tangible or intangible personalty, to be brought in the county of the residence of the owner of the alleged converted interest, it could easily have said so without tying conversion to the “damages to personal property” language which has been the subject of such consistent and strict interpretation.

The temporary writ of prohibition is made permanent.

Purtle, J., not participating.


author: Rice Van Ausdall, Special Justice.

text:
    W. WILLIAM GRAHAM, INC. v. The CITY OF CAVE CITY
    85-217
    709 S.W.2d 94
    Supreme Court of Arkansas
    Opinion delivered May 19, 1986

      Wright, Lindsey & Jennings, for appellant.

      Blair & Stroud, by: H. David Blair and Keith Watkins, for appellee.
   Rice Van Ausdall, Special Justice.

This is a breach of contract case. Appellee entered into a contract with appellant for the purpose of preparing plans for a wastewater treatment facility. The contract provided that the plans were to be completed within 135 days. It was clearly understood by both contracting parties that failure to have the plans ready and submitted to a certain governmental agency within the time frame, would result in a reduction of the appellee’s entitlement, from a 75% funding to a 55% funding. Appellant’s obligation was to have these plans ready for submission in such a manner, and in due course of events, so that the 75% funding would be available. Appellant failed to perform as agreed, its performance being after the deadline, resulting in a reduced funding, such reduction being in the amount of $338,935.00.

The contract further provided as follows:

The OWNER [appellee] agrees to limit the ENGINEER’S [appellant’s] liability to the OWNER and to all Construction Contractors and Subcontractors on the Project, due to the ENGINEER’S professional negligent acts, errors or omissions, such that the total aggregate liability of the ENGINEER to those named shall not exceed Fifty Thousand Dollars ($50,000.00) or the ENGINEER’S total fee for services rendered on this project, whichever is greater.

Appellant contends that because of this limitation of liability proviso, appellee cannot recover more than $99,214. (This sum was the appellant’s fee for services.)

Appellee contends as a threshold matter, that Appellant has not preserved the issue for appeal, by its failure to have the trial court rule on its motion for a directed verdict at the conclusion of all the evidence. However, the record shows clearly that the trial court was made aware of the specific contract language being relied upon, and what action was requested. This was initially raised by motion for summary judgment, ruled upon again by entry of an order in response to a motion in limine, and raised again at the end of all the proof. We agree with Appellant that where the record shows, as here, that the trial court was adequately presented with the question, and specific objection was made, substantial compliance has been made, and the issue is preserved for review by this Court. See 4 C.J.S. Appeal & Error §320.

Appellant urges the limitation of liability clause is valid and enforceable, and the Court must give effect to such provision, where, as here, it was voluntarily entered into. The issue, however, is not the enforceability of such clauses, but the construction of the present clause. Clearly, if the clause limits liability, it is the duty of this Court to give effect to such clause. Miller v. Dyer, 243 Ark. 981, 423 S.W.2d 275 (1968). However, the clause hereinabove cited restricts and limits recovery to damages based upon “. . . professional negligent acts, errors, or omissions. . . .” No mention is made of liability for breach of contract, and the resultant damages that might flow from such a breach.

As noted in Cincinnati Gas & Electric Co. v. Westinghouse Electric, 465 F.2d 1064 (6th Cir. 1972), prior authority is often not very helpful due to the difference in language employed:

In cases involving the interpretation of contract language, extensive examination of precedent is of little value since the controlling rhetoric will vary from case to case.

Here, the language pertains to “. . . negligent acts, errors or omissions. . . .” The jury found, on substantial evidence, and under proper instruction, that appellant had breached its contract duty to perform within the time frame mutually agreed upon. Whether this delay was occasioned by inefficient use of time, poor management, or whatever, is not for the Court to divine. If appellant had desired to limit its liability for breach of contract, it could have done so, and doubtless this Court would have enforced such contract proviso, as it has many times in the past. Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89 (1978); C. & A. Construction Co. v. Benning Construction Co., 256 Ark. 621, 509 S.W.2d 302 (1974). However, having failed to do so, and having contented itself with limiting its liability only for its negligent acts, errors or omissions, the Court cannot engraft onto the contract a limitation not set forth. For while it is quite true this Court must give effect to such clauses, it is equally true this Court cannot rewrite a contract for the parties. Pope v. Shannon Brothers, 199 Ark. 1148, 138 S.W.2d 382 (1940); Christmas v. Raley, 260 Ark. 150, 539 S.W.2d 405 (1976); Rector-Phillips-Morse v. Vroman, 253 Ark. 750, 489 S.W.2d 1 (1973). Moreover, it must also be remembered that such clauses are not the favorite of the Court, and they will be strictly construed against the party relying on them and be limited to their exact language. Middleton & Sons v. Frozen Food Lockers, 251 Ark. 745, 474 S.W.2d 895 (1972); Armco Steel Corp. v. Ford Construction Co., 237 Ark. 272, 372 S.W.2d 630 (1963).

The Court is not unaware of the other issue raised by appellee, having to do with, in the first instance, the dichotomy of professional negligence vis-a-vis simple negligence; and in the second instance, the public policy contention. It will suffice to say that the foregoing analysis disposes of the cause, and in keeping with its time honored custom, this Court will not reach and decide issues not necessary for the complete disposition of the litigation. Russell v. Miller, 253 Ark. 583, 487 S.W.2d 617 (1972); Lytle v. Zebold, 227 Ark. 431, 299 S.W.2d 74 (1957); Davis v. Strong, 208 Ark. 254, 186 S.W.2d 776 (1945).

Affirmed.

Purtle, J., not participating. ■


author: Jack Holt, Jr., Chief Justice.

text:
    NEWTON COUNTY, ARKANSAS & Donald J. ADAMS, Special Adm’r of the Estate of Sue S. MORAK, Deceased v. Dwight DAVISON & Kathleen DAVISON
    85-284
    709 S.W.2d 810
    Supreme Court of Arkansas
    Opinion delivered May 27, 1986
    [Rehearing denied June 30, 1986.]

      Karen B. Walker, for appellant Newton County.

      Donald J. Adams, for appellant Estate of Sue S. Morak.

      Bill F. Doshier and Dan R. Bowers, for appellees.
   Jack Holt, Jr., Chief Justice.

This is the second appeal concerning the estate of Sue S. Morak, deceased. In the first, we were asked by Newton County to decide whether the probate court erred by failing to remove the administrator of Mrs. Morak’s estate because of a conflict of interest and misadministration. Newton County v. West, 288 Ark. 432, 705 S.W.2d 887 (1986). This court found that, based on the incomplete record before us, we could not say that the probate court erred as a matter of law. Although it was argued at the probate court hearing in that case that Newton County was an interested party because of the possibility that the estate would escheat to the county, no such argument was made in the appeal. In the appeal before us now, Newton County is arguing that the chancery court erred in finding that it was not a necessary party and that it had no standing to participate in the proceedings. The special administrator of the estate, Don Adams, has also appealed, arguing that the findings of the chancery court were contrary to the law and evidence. Our jurisdiction is pursuant to Sup. Ct. R. 29(1 )(c) and Ü).

Because this case presents two different appeals, they will be discussed separately. The appeal brought by Newton County solely concerns the question of the standing of the county to participate in the proceedings. A hearing was held on May 2, 1985, in Newton Chancery Court to determine the ownership of the contents of a lock box in which the decedent had placed U.S. Savings bonds. At the hearing, the attorney for Newton County appeared and asked the court to find it was entitled to notice of the proceedings and also entitled to be a party to this action, based on the possibility that the estate would escheat to the county pursuant to Ark. Stat. Ann. § 61-150 (Supp. 1985). The court ruled orally that the county was not an interested party. That finding, however, was not made a part of the judgment entered May 10, 1985. In addition, the county never filed a written petition to intervene. On May 22, 1985, Newton County filed a motion to vacate the May 10 judgment which was denied by the trial court for lack of standing on July 16, 1985. That order was not appealed. Instead, Newton County’s notice of appeal to this court states that the county is appealing the judgment entered May 10.

Newton County’s appeal is not properly before this court. The county cannot object to the failure of the trial court to allow it to intervene in the matter because no motion to intervene was ever filed as required by Ark. R. Civ. P. 24(c). Similarly, the county cannot object to the denial of its motion to vacate the judgment because an appeal was not taken from that judgment. Rules of App. P. 3(e). Mears, Judge v. Little Rock School Dist., 268 Ark. 30, 593 S.W.2d 42 (1980). Finally, Newton County had no standing to appeal the May 10 order specified in its notice of appeal. It was not a party to that action and no ruling was made in that order touching its status as a party. See Frazier v. McHaney, Receiver, 117 Ark. 394, 178 S.W. 419 (1915).

The second appeal concerns the trial court’s award of the contents of the safe deposit box to the appellees. The decedent, Mrs. Morak, died on July 8, 1984, intestate and with no known heirs. On January 4, 1985, Dwight and Kathleen Davison, appellees, filed a petition alleging they were joint tenants with a right of survivorship in the contents of a safe deposit box which Mrs. Morak had rented on June 11,1981. The lock box contained U.S. savings bonds worth $324,987.35 and $4,020 in currency. The bonds show Mrs. Morak and various members of her family, all of whom are apparently deceased, as the owners. The administrator of the estate filed an answer alleging that the agreement of joint tenancy with right of survivorship between the appellees and the decedent was merely for the use of the box and not for the disposition of the contents.

The chancellor found that the appellees and Mrs. Morak were good friends and neighbors and that the Davisons took care of Mrs. Morak and her family for several years prior to her death. The court further found that about three years prior to Mrs. Morak’s death, she and the Davisons agreed to lease a safe deposit box as joint tenants with right of survivorship so that each would be a joint owner of all of the contents of the box and the survivors would be the complete owners of those contents.

Although we do not set aside such findings of fact by a chancellor unless they are clearly erroneous, Farris v. Farris, 287 Ark. 479, 700 S.W.2d 371 (1985); Ark. R. Civ. P. 52, we find that the agreement between the parties was only for the rental of the safe deposit box and not for the disposition of its contents.

The only evidence offered indicating that the Davisons had a right to the contents of the lock box was provided by the Davisons. Mr. Davison testified that Mrs. Morak told him he and his wife were to become joint owners of what was in the box. He also stated, however, that he did not know what the box contained, that he never entered the box during Mrs. Morak’s lifetime, he and his wife were not to receive any benefits from the contents of the box until after Mrs. Morak’s death, and Mrs. Morak was to receive all benefits from the bonds during her life. Mr. Davison admitted there was no agreement as to the use of the bonds themselves. There was further evidence that Mrs. Morak stated her intention to make a will but she died before she was able to do so.

Based on the foregoing evidence we are unable to say that Mrs. Morak clearly intended to make a gift to the Davisons of the contents of the safe deposit box. In Black v. Black, 199 Ark. 609, 135 S.W.2d 837 (1940), we noted that there is a presumption of ownership in favor of the surviving lessee of a safe deposit box which can be rebutted by testimony to the contrary. In that case, however, the lease agreement signed by the parties renting the box specifically stated that the property placed in the box is joint property and upon the death of either joint tenant the property passes to the survivor. Such an agreement as to the contents is missing here.

Again in Miller v. Riegler, 243 Ark. 251, 419 S.W.2d 599 (1967) this court considered the contents of a joint safe deposit box. In Miller the box contained several hundred shares of stocks which had been transferred before the testator’s death to the joint names of the testator and the beneficiary with a right of survivorship. Accordingly, we upheld the transfer of the stock. Here, the savings bonds were not transferred to the joint names of Mrs. Morak and the Davisons. Rather, they still reflect Mrs. Morak and several of her deceased relatives as owners.

Other courts have held that the deposit of articles in a jointly leased safe deposit box of itself works no change in title, absent an express agreement that the contents of the box shall be joint property. Annotation, 14 A.L.R.2d 948, 954 § 2 (1950). This is so even if the language in the lease describes a joint tenancy with the right of survivorship, unless it specifically refers to the contents. Id. Similarly, it is generally held that a joint lease of a safe deposit box in and of itself is insufficient to support the contention that a gift has been made of the contents. Annotation, 40 A.L.R.3d 462, 465 § 2 (1971).

In finding the language of the lease and Mr. Davison’s testimony insufficient to establish ownership of the contents of the lock box, we announce our intention to require an affirmative showing that the owner of a lock box intended to give the contents of the lockbox to another. Such an intention cannot be demonstrated without a specific written reference to the disposition of the contents of a lock box and is not indicated by an agreement only to rent the box in two or more names with a right of survivorship.

Accordingly the judgment awarding the contents of the lock box to the Davisons is reversed.

Purtle, J., not participating.


text:
    JIM PAWS, INC. v. EQUALIZATION BOARD OF GARLAND COUNTY, ARKANSAS
    86-13
    710 S.W.2d 197
    Supreme Court of Arkansas
    Opinion delivered May 27, 1986

      Wootton, Glover, Sanders, Slagle, Parkerson & Hargraves, P.A., by: Richard L. Slagle, for appellant.

      Robert Ridgeway, Sr., Prosecuting Attorney, for appellee.
   Jack Holt, Jr., Chief Justice.

The Velda Rose/Ramada Inn Hotel was reappraised and assessed by the Garland County Assessor at a total valuation of $5,444,700 in June, 1981. The appellant, Jim Paws, Inc., purchased the hotel for $1,000,000 in July, 1981. Appeals of the assessment to the Garland County Equalization Board and the Garland County Circuit Court resulted in a reduction of the assessed value to $4,458,750. Appellant argues on appeal to this court that the method of assessment used by the county appraiser was arbitrary and unreasonable and did not reflect the true market value of the property. Appellant also contends that the circuit court should have excluded testimony by the county’s expert witness because it had no reasonable basis. This appeal was certified to the Supreme Court by the Court of Appeals because it involves methods of reappraising property, an issue of significant public interest under Sup. Ct. R. 29(4)(b).

The assessment and appraisal of appellant’s property was based solely upon the “replacement cost new, less depreciation”, approach. Upon appellant’s petition for review, the circuit court reduced the assessment because of incorrect evaluations of the effective age and depreciation of appellant’s property. Appellant contends that the reappraisal is arbitrary and unreasonable and grossly exceeds the true market value of the property and that the purchase price of $1,000,000 is its true market value. We agree that the assessment was clearly erroneous and arbitrary and exceeded the true market value of the property.

In reversing the circuit court, we are aware that it is only in the most exceptional cases that an appellate court will grant a reassessment of property. In St. Louis-San Francisco Ry. Co. v. Arkansas Pub. Serv. Comm’n, 227 Ark. 1066, 304 S.W.2d 297 (1957), this court discussed the standard of review in these cases:

The purpose of any Court appeal from an assessment or equalizing agency is to see that the assessment is neither erroneous in figures, nor arbitrary in measuring, nor confiscatory in results. In 84 C.J.S. 1123, the effect of the holdings is summarized in this language: “On an appeal from an assessment, the Court will not disturb the decision of the assessors unless it is clearly erroneous, or, unless, as required by Statute, the assessment is manifestly excessive, fraudulent, or oppressive. ...”

Nevertheless, property must be assessed according to its “value”. Article 16, § 5 of the Arkansas Constitution, as it reads after amendment 59, states that “[a] 11 real and tangible personal property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State.” Prior to amendment 59, the pertinent part of article 16, § 5 read much the same, requiring that all property be assessed according to its value.

Arkansas Pub. Serv. Comm’n v. Pulaski County Equalization Bd., 266 Ark. 64, 582 S.W.2d 942 (1979), held that Act 411 of 1973 and Act 188 of 1969 were unconstitutional in that they violated the longstanding interpretation by the Supreme Court and the legislature that value meant “current market value”. That opinion reviewed the Arkansas case law and statutory authority which established the premise by which assessment statutes and methods must be measured. This premise is that property must be assessed according to its “real and true value”; the “true and full market or actual value”. In calculating the market value, many factors must be considered, and the type of inquiry will depend on what type of property is involved, but “all of these questions are to be considered for the purpose at last of ascertaining the market value of the tract in question, and that is the value which must be adopted for the purposes of assessment when it has been ascertained.” Id., at 76, quoting American Bauxite Co. v. Board of Equalization, 119 Ark. 362, 177 S.W. 1151 (1915).

In the present case, the county appraiser did not consider several factors, particularly the type of property involved, i.e. income-producing property, in determining real and true value. To the contrary, the county appraiser limited its evaluation of appellant’s property to the cost of replacement or “new cost” of the hotel, including the restaurant and parking facilities, with the estimated depreciation of the property subtracted.

The appellant, in support of his claim that the reappraisement exceeds the true market value, introduced testimony from C.V. Barnes, an appraiser with more than 40 years of experience, concerning the three different approaches used in appraising this type of property. In addition to the “new cost” approach used by the county appraiser, there are the market data approach and income approach. The market approach compares sales of similar properties in the community and looks at any arms-length transactions involving the subject property. The income approach estimates the fair market rental of the property, determines what the net income for the property would be, and then capitalizes the net income to obtain the dollar value of the property. Although both the county appraiser and the expert witness for the county stated that the Public Service Commission manual, published for use by county appraisers, recognizes all three methods, only the “new cost” method was used in this instance.

Barnes testified that, according to the market approach, using the actual sale of the property as the primary source, the property’s estimated value was between $1,150,000 and $ 1,250,000. Using the facility’s historical occupancy rate of 40%, Barnes estimated the value of the hotel to be $ 1,365,000 based on the income approach. Barnes stated that with this type of property, the income approach is the most reliable, because its value to an owner is determined by the future income the property can produce. He did an estimate based on the cost approach, but did not consider that to be a viable appraisal because it was so out of line with what he concluded from the other two approaches. Although the replacement cost figure used by the county appraiser was reasonable, he said the final conclusion was not because the depreciation figure did not account for the physical, functional and economic depreciation which should have been deducted, and because it did not consider the income and market approaches. Barnes emphasized the economic obsolescence of the property, caused by occupancy rates in Hot Springs dropping from between 70% and 80% twenty years ago to between 40% and 50% now.

The county appraiser who was involved in the reappraisal in August, 1981, testified that the building was classified according to the type of construction in accordance with the manual, and given an actual age and effective age due to the condition of the property for depreciation. No consideration was given to the income approach, but some market research was done, although there was no indication that this had any effect on the assessment. On cross-examination, he said he has no experience in the construction of monolithic concrete, high-rise structures. He said he did not consider the location of the hotel in making his appraisal.

John Zimpel, the research, information and education officer and realty appraiser supervisor for the Assessment Coordination Division, also testified for appellee as an expert witness. Zimpel valued the property at $5,211,576 using the new cost approach. Using national occupancy rates of 50% and 60%, and various estimates of revenue and operating expenses, his income approach appraisals ranged from $3,225,909 to $8,375,765.

Appellant objected at trial to the testimony of Zimpel because his income method estimates were “based on some sort of fantasy occupancy rate and phantom expenses” that had no relationship to the area or the historical evidence presented regarding the subject property. Appellant argues that Zimpel’s testimony should have been stricken for this reason, along with the fact that he admitted on cross-examination that he had no personal knowledge of typical hotel expenses or capitalization rates used in this type of property; he could not remember any other hotels he had appraised in Arkansas; he deducted expenses that were incurred during a year when the hotel was operating at a 41% occupancy rate while at the same time projecting an income for 50% occupancy; he had no evidence of what the typical occupancy rate was in Hot Springs; and he made no allowance for any kind of maintenance or replacement of expendable items as he should have.

If there is no sound and reasonable basis for expert testimony, the testimony will be stricken. Ark.-Mo. Power Co. v. Sain, 262 Ark. 326, 556 S.W.2d 441 (1977). If the cross-examination shows that the testimony has a weak or questionable basis, however, then that goes to the weight and credibility given to the testimony rather than to the admissibility. Arkansas State Hwy. Comm’n v. Russell, 240 Ark. 21, 398 S.W.2d 201 (1966). Further, the decision of the admissibility of such evidence rests largely within the sound discretion of the trial court and will not be reversed unless an abuse of discretion is found. Dildine v. Clark Equip. Co., 282 Ark. 130, 666 S.W.2d 692 (1984).

We find no abuse of discretion in the admission of the evidence, particularly in light of the fact that any objections to the reliability of the testimony were adequately addressed upon cross-examination of the witness. We do find, however, that the appellant was able to show at trial that the estimates of its expert based on the income approach and the acquisition of the property adequately demonstrated that the appraisal did not reflect the true value of the property and that the county’s assessment based on the “new cost” approach was excessive and clearly erroneous.

We have recognized in cases involving condemnation of property by the State Highway Commission that use of reproduction costs, less depreciation, as a means of determining the true market value of property is a method that is inherently unreliable, especially when dealing with income-producing property. In Arkansas State Hwy. Comm’n v. Mahan, 249 Ark. 1022, 463 S.W.2d 98 (1971), the court stated:

Nichols points out that evidence of reproduction costs, though admissible in most jurisdictions, should be received with caution, “because the reproduction cost of a structure sets an absolute ceiling on the market price of that structure, a ceiling which may not be, and frequently is not, even approached in actual market negotiations. When this inherently inflationary attribute of reproduction cost evidence is considered in light of the misleading exactitude which such evidence almost invariably imparts to a jury unsophisticated in the niceties of economics, the justification for placing substantial safeguards upon its admission is apparent.” Nichols, Eminent Domain, § 20.2 (3d ed., 1969).

We reversed an approval of an assessment by the Board of Equalization in Lile v. Pulaski County Equalization Bd., 252 Ark. 508, 479 S.W.2d 856 (1972). In Lile, the assessor valued a lot by establishing a front foot value in each block of downtown Little Rock and applying it to the property being assessed. He never testified as to what he considered to be the “true market value in money”. We held there that the method used did not accurately establish the value of the property and that the appellant had produced substantial evidence that the property was worth considerably less than the assessment.

In this case, appellant produced extensive testimony and a report prepared by Barnes using actual figures from the operation of the hotel and restaurant, in support of a much lower estimate of the value of the property. The actual sale of the property was for less than one-fourth of the appraisal even after it had been reduced by the equalization board and the circuit court. The method used by the county appraiser seems to be the least reliable of the three methods approved by the manual for appraising this type of property. Zimpel himself testified that the definition used by the state of fair market value is “the most probable price expressed in terms of money that a property will bring on the open market in a transaction between a willing and knowledgeable seller and willing and knowledgeable buyer in an arms-length transaction.” Appellant’s evidence that the purchase of the hotel was an arms-length transaction between two businessmen, both knowledgeable in the hotel business, and under no compulsion to buy or sell, was unrebutted by the county.

We do not hold that the new cost approach to appraising property is a method that will always lead to an excessive appraisal. When income-producing property is assessed, however, and the new cost approach is exclusively used without any consideration of the cost of acquisition or of the value of the property in terms of the income that property will generate for the owner, then the appraisal is not aimed at determining the property’s true market value. A hotel generally has two primary measures of value to an owner — cost of acquisition and how much income it can produce. These values will often be totally irrelevant to the cost of replacing the hotel twenty years after it was originally built. The county appraiser admitted he did not consider the income approach, and the judgment and findings of the circuit court gave no indication that the income or market approaches were accounted for in reaching its decision. To the contrary, the circuit court judgment merely followed the approach used by the county appraiser, using the same replacement cost estimate. The only change was in the depreciation, which the circuit court increased by requiring the assessor to estimate depreciation based on the hotel’s actual age rather than the “effective” age the assessor had originally given it. Regardless of the method used for appraisal, the burden remains on a challenging party to show it resulted in a clearly excessive valuation. In this instance, appellant has met that burden.

Although it is clear that the appraisal in this instance was arbitrary and manifestly excessive, it is not within the province of appellate courts to assess property. Cook v. Surplus Trading Co., 182 Ark. 420, 31 S.W.2d 521 (1930). We therefore remand to the circuit court to set a true market value on the property which considers the income and market approaches to assessment.

Reversed and remanded.

Purtle, J., not participating.


author: George Rose Smith, Justice.

text:
    Jerry Ray FRANKS v. STATE of Arkansas
    CR 86-5
    709 S.W.2d 406
    Supreme Court of Arkansas
    Opinion delivered May 27, 1986

      Chet Dunlap, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

This is a postconviction proceeding under Criminal Procedure Rule 37. In 1982 the appellant, Jerry Ray Franks, was charged with three counts of burglary and three counts of theft, plus a charge that he was an habitual criminal with three prior felony convictions. The trial began on January 20, 1983. During the testimony of the State’s first witness Franks told his attorney that he desired to withdraw his claim of innocence and enter a plea of guilty.

The trial judge excused the jury and determined, after having fully complied with Criminal Procedure Rule 24, that the plea was voluntary and that Franks admitted having committed each of the offenses charged. The judge also determined from the record that Franks had been committed to a mental health center and found to be free from any mental illness or defect and to understand the charges against him. Franks stated that he was not under the influence of alcohol or drugs. During a recess Franks signed a Guilty Plea Statement after it had been explained to him by his attorney. The court then accepted the plea of guilty and imposed sentence.

Two years later Franks filed the present handwritten petition, acting pro se. He asks that his conviction be set aside and that he be granted a new trial. The trial judge denied the petition on the basis of the record, without an evidentiary hearing. The only argument for reversal is that a hearing should have been held.

The argument is without merit. When the plea was accepted Franks stated that he was guilty, and the court so found. In his present petition Franks does not say that he was not guilty. He alleges ineffectiveness of counsel without stating any facts: “My lawyer did not help me at all on my case. He just tried to get me to cop out, and told me I was going to get a lot more time. He confused me and my father, that’s the only reason I pleaded mercy to the court.” In view of Franks’s admissions of guilt, no possible prejudice is shown. Welch v. State, 283 Ark. 281, 675 S.W.2d 641 (1984).

The petition also alleges: “I was badly on drugs, but didn’t want to admit it because I felt it would be even worse on me. I pleaded to the Court because I didn’t know what I was doing at the time, and I was thinking of too many things at once.” These allegations are conclusory and assert nothing that was not before the court when the plea was accepted. The prior record being essentially undisputed, no reason for an evidentiary hearing has been shown.

Affirmed.

Purtle, J., not participating.


text:
    Ernie J. AMBORT, Jr. v. Zerle NOWLIN et ux.
    86-22
    709 S.W.2d 407
    Supreme Court of Arkansas
    Opinion delivered May 27, 1986

      G. Ross Smith & Associates, P.A., for appellant.

      Laser, Sharp & Mayes, P.A., for appellees.
   Darrell Hickman, Justice.

The appellant Ernie Ambort, Jr., was bitten by the appellees’ dogs. He sued and a verdict was returned in his favor for $5,043.50. However, Ambort claimed over $7,000 in medical bills and $3,000 in lost wages. He appeals claiming the trial court erred in instructing the jury and that he should be given a new trial. The trial court instructed the jury to determine whether Ambort was at fault in the incident. The jury was also instructed that an owner of a domestic animal, known to be vicious, does not owe the same duty to the injured person if he were a trespasser or licensee. Both of these instructions were supported by the evidence. We affirm.

Ambort, currently a resident of Texas, was in Little Rock on business and decided to return to the neighborhood where he grew up. While walking in the area, he saw Mrs. Ann Nowlin, an elderly woman, on her front porch. He thought he recognized her and approached the house. There was a public sidewalk in front of the house with a private walk leading to the house. The front yard was enclosed with a chain link fence about four feet high. Ambort stepped off the public walk, approached the fence, and spoke to Mrs. Nowlin. He noticed two barking dogs within the fenced yard and admitted being somewhat apprehensive. He said he watched them from the corner of his eye as he was talking. Ambort testified that he did not lean over or touch the fence, but one of the dogs, an Airedale, jumped up and bit him on the face. The dog actually bit off a portion of Ambort’s nose. Ambort, undoubtedly frightened and shocked, asked Mrs. Nowlin to put the dogs in her house. Finally, she did, and Ambort entered the yard and searched for the missing part of flesh, hoping it could be reattached by a surgeon. While he was searching, one of the dogs came out of the house and bit him again.

Mrs. Nowlin, it developed, had a mental problem. According to her husband, she just did not “have any mind at all.” He acquired the two dogs to protect her and his property which was entirely enclosed by a fence: a high one in the back yard and the four foot fence in the front. He denied knowing the dogs had bitten anyone. He denied knowing that a postman had previously been bitten and had marked the Nowlins’ mail as “delivery delayed — animal hazard.” However, he did admit that at one time he had placed signs on the fence warning people of the dogs. They had been torn down, and he had not replaced them.

The appellant contends that the judge erred in submitting the case to the jury on the basis of comparative fault instead of on the theory of strict liability; that is, that the owner of a known vicious domestic animal is liable for all damages caused by the animal regardless of the fault of the owner, or the fault of the injured person.

The judge was entirely correct, using instructions from AMI Civil 2d 1602 and 1604 (Revised). These revised instructions were drafted after our decision in Strange v. Stovall, 261 Ark. 53, 546 S.W.2d 421 (1977). The reporter’s note to No. 1602 (Revised) reads in part: “If there is an issue of fact as to whether the plaintiff is a trespasser, licensee, or invitee, this instruction should be appropriately modified.” There was a fact question of whether Ambort was trespassing or a licensee since he was on private property and had not been expressly invited there.

There was also a fact question of whether Ambort was guilty of negligence in approaching the fenced yard on private property with two dogs, which were barking and causing him apprehension. He had not been in the neighborhood since his childhood. A jury could conclude that he did not use good judgment, he was negligent, and partly at fault for his injuries. AMI 1604 (New), drafted after Strange v. Stovall, supra, is to be used if there is an issue of the plaintiffs negligence or other fault. The comment to AMI 1602 (Revised) reads: “Despite the rule of strict liability, the plaintiffs recovery may still be diminished by the statutory doctrine of comparative fault.” The instructions were correctly given.

The judge substituted the word “fault” in three places for the word “conduct” in this instruction. It was argued that this was misleading in a strict liability case, because it would lead the jury to conclude the defendant must be found at fault, an unnecessary factor in strict liability.

The appellant’s theory of strict liability imposed on the owner of a domestic animal, known to be vicious, was repudiated in Strange, and the AMI instruction as revised correctly states the law. Although an owner can be held strictly liable, it does not follow he is liable in every conceivable case; perhaps not where a trespasser or licensee may be injured and perhaps not when a person, through his own fault, causes the accident. In this case it was a fact question for the jury as to whether the owner should be held strictly liable.

The appellant raises another argument about the cross-examination of Mr. Nowlin being restricted but that objection was abandoned at trial.

Affirmed.

Hays and Purtle, JJ., not participating.


text:
    Doyle DYER v. Harold WOODS
    86-4
    710 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered May 27, 1986

      Hubbard, Patton, Peek, Haltom & Roberts, by: George L. McWilliams, for appellant.

      Mathis & Childers, by: Travis Mathis, for appellee.
   Darrell Hickman, Justice.

The trial judge set aside a jury verdict for the appellant, defendant below, in this truck collision case and granted the appellee a new trial. On appeal we look to see if the trial judge abused his discretion in so acting. Yutterman v. Williams, 289 Ark. 77, 709 S.W.2d 86 (1986); Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1983). The judge is permitted to weigh the evidence and if he finds that a verdict is clearly contrary to the preponderance of the evidence, he may set it aside and grant a new trial. ARCP Rule 59 (a) (6).

The accident occurred at the intersection of Highways 29 and 19 in Pike County. There is a stop sign on Highway 29. The appellant was preparing to turn left from Highway 29 onto Highway 19. The appellee was proceeding on Highway 19 and preparing to turn left onto Highway 29. As appellee approached his turn, he saw appellant applying his brakes and looking both ways. Appellee turned into the proper lane of Highway 29. The appellant conceded that at the time of the collision the entire tractor of his rig and half of the trailer was in the appellee’s lane. A photograph introduced into evidence demonstrates very clearly that the accident occurred in appellee’s lane. The appellant contended at trial that he had to be in that lane to see to his right before making his turn.

While only the testimony of the parties is abstracted, that testimony and the photograph strongly support the appellee’s claim. The judge concluded that the clear preponderance of the evidence was in favor of the appellee, and we find no abuse of discretion.

Affirmed.

Purtle, J., not participating.


text:
    Norma Francis MILLIGAN, Individually, and as Administratrix of the ESTATE of James Edward MILLIGAN, Deceased v. COUNTY LINE LIQUOR, INC.
    86-18
    709 S.W.2d 409
    Supreme Court of Arkansas
    Opinion delivered May 27, 1986

      Odom, Elliott & Martin, by: Don R. Elliott, Jr., for appellant.

      Bassett Law Firm, by: Wm. Robert Still, Jr., for appellee.
   Robert H. Dudley, Justice.

Vincent Paul Vulpi, a minor, purchased six bottles of beer from the appellee, County Line Liquor, Inc. Immediately after purchasing the beer, Vulpi left appellee’s premises and, while opening a bottle of beer, lost control of his vehicle and struck an oncoming vehicle. As a result of the collision, appellant’s husband was killed.

Appellant sued both Vulpi and appellee. She contends that appellee was negligent in selling beer to a minor in violation of Ark. Stat. Ann. § 48-901 (Repl. 1977) and that appellee’s negligence was the proximate cause of the accident. Appellee moved for summary judgment pursuant to ARCP Rule 56, arguing there was no genuine issue of material fact and that it was entitled to a summary judgment as a matter of law. The trial court granted the summary judgment in favor of the appellee liquor store. We affirm.

In Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965), we stated: “It may be that a Dramshop Act is to be desired, but such a measure should be the result of legislative action rather than of judicial interpretation.” The primary purpose of this appeal is to see if we will reverse our position and now adopt such a measure by judicial fiat. The facts are not squarely before us for a redetermination of the issue since there is no allegation that Vulpi ever consumed any of the beer, but, even so, we decline to change our position because of the essential soundness of the common law rule. That is, it is the consumption of intoxicants, not the sale standing alone, which is the proximate cause of injuries.

Appellant next argues that the trial court erred in ruling that as a matter of law there was no proximate cause between violation of the statute prohibiting the sale of beer to a minor and the accident. The argument, in essence, is simply another way to contend that Ark. Stat. Ann. § 48-901 (Repl. 1977) is a Dramshop Act. We have previously rejected the argument. In Carr v. Turner, supra, we stated it is clear that in enacting Ark. Stat. Ann. § 48-901 the General Assembly did not intend to change the common law rule of nonliability.

Affirmed.

Purtle, J., not participating.