author: W.H.“Dub” Arnold, Chief Justice. Robert L. Brown, Justice, Annabelle Clinton Imber, Justice,

text:
    Curtis Lee FRANKLIN, Jr. v. HEALTHSOURCE of ARKANSAS
    96-116
    942 S.W.2d 837
    Supreme Court of Arkansas
    Opinion delivered April 21, 1997
    [Petition for rehearing denied May 27, 1997.]

      Jay Youngdahl and David Hodges, for appellant.

      Jack, Lyon & Jones, P.A., by: Allen Carney Bowmnan, for appellee.

       Newbern, Brown, and Imber, JJ., would grant.

   W.H.“Dub” Arnold, Chief Justice.

This case involves a dispute between an insured, Curtis Lee Franklin, and his insurer, Healthsource of Arkansas, over allocation of the proceeds of a policy limit settlement in a personal-injury action; both parties claim exclusive right to the proceeds. The trial court ruled that as a matter of law pursuant to Higginbotham v. Ark. Blue Cross & Blue Shield, 312 Ark. 199, 849 S.W.2d 464 (1993), Healthsource was entitled to receive the proceeds because its conventional right of subrogation, which arose from a subrogation agreement, took priority over Franklin’s legal right of subrogation. Franklin appeals requesting that this court overrule Higginbotham.

On March 31, 1994, Franklin was injured in an automobile accident involving James Arlen Ray, Jr. Franklin sustained injuries that were substantial, and he was hospitalized. After being released from the hospital, on May 9, 1994, Franklin was presented with a document from his medical insurance carrier, Healthsource of Arkansas, which was entitled “Right of Recovery/Subrogation Questionnaire.” This document contained general questions regarding the accident and, at the bottom, a section entitled “Assignment of Benefits.” After consulting with his attorney, Franklin answered the questions and signed the document.

Franklin filed suit alleging negligence by Ray. Defendant Ray filed an answer, and later his insurance carrier offered Franklin the liability policy limit of $25,000 in settlement of the claim. After discovery revealed that Ray had no appreciable assets, Franklin accepted the setdement offer.

Ray then filed a third-party complaint requesting that the court allocate the $25,000 among potential claimants, including several medical care providers, Healthsource, and the Jefferson County Child Support Enforcement Unit. All third parties except Healthsource were dismissed by order of the trial court.

The trial court held a hearing to dispose of the $25,000. Healthsource claimed it was entided to the entire $25,000 policy limit because of the subrogation agreement with Franklin. Healthsource, pursuant to the medical insurance policy provided by Franklin’s employer, had paid medical bills incurred by Franklin for the sum of $71,120.65.

Franklin contended that he was entitled to the $25,000 because he had incurred damages for which he had not been compensated. It is undisputed that Franklin incurred medical bills of at least $124,000. Expert testimony was presented at the hearing regarding the potential value of Franklin’s claims; the total value was valued in excess of $400,000.

The trial court ruled that Franklin’s attorneys were entitled to attorney fees to be paid from the settlement and that Health-source was entitled to the remainder pursuant to the subrogation agreement between Healthsource and Franklin. The trial court based this ruling upon this court’s opinion in Higginbotham. In supporting this finding, the trial court ruled that there was a valid contract in the subrogation agreement because Franklin signed the document after consulting counsel which made his consent a “knowing and informed act.” Franklin appeals the trial court ruling requesting that this court overrule Higginbotham.

The Higginbotham decision was a plurality opinion that illustrates the division on this court concerning the allocation of proceeds of policy-limit settlements through conflicting rights of subrogation. Like the case before us, Higginbotham involved a dispute over whether the insured or the insurer was entitled to the proceeds from a policy-limit settlement when both parties had claims exceeding the amount of the settlement.

In Higginbotham, a three-justice plurality concluded that conventional subrogation rights of an insurer created by contract prevail over an insured’s equitable right of subrogation arising as an operation of law. Specifically, these justices reasoned: “Without discounting the equitable properties of subrogation, we can conceive of no sound reason why broad principles of equity should be imbued with dominance over clear and specific provisions of a contract agreed to by the parties, at least where public policy considerations are wanting.” Id. at 203.

The three dissenting justices in Higginbotham cited Shelter Mut. Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992), as the controlling rule. They determined that “subrogation is recognized or denied upon equitable principles without differentiation between ‘legal subrogation’ which arises by application of principles of equity and ‘conventional subrogation’ arising from contract or the acts of the parties.” Id. at 205, citing Garrity v. Rural Mut. Ins. Co., 253 N.W.2d 512 (Wis. 1977).

The deciding vote in Higginbotham was cast by a concurring opinion, which supported the ultimate conclusion reached by the plurality, but departed from the rule espoused by those three justices by expressing an alternative theory of recovery. The concurring opinion closely follows the rule set forth in Bough.

In Bough, we addressed a dispute regarding the subrogation rights of an insurer versus those of an insured for the proceeds of a poHcy-hmit settlement; those factual elements closely resemble both the case before us and the facts in Higginbotham. In this court’s unanimous decision in Bough, this court recited the following rule:

the general rule is that an insurer is not entitled to subrogation unless the insured has been made whole for his loss, [however], the insurer should not be precluded from employing its right of subrogation when the insured has been fully compensated and is in a position where the insured will recover twice for some of his or her damages.

Id. at 641.

In reviewing our decisions Bough and Higginbotham, We take this opportunity to clarify our position on the priority given to subrogation rights of insureds versus those of insurers in instances where both parties have claims against a partial recovery from a third party. It is our determination that Bough is the better rule. A contrary rule relying upon the dominance of one type of subrogation over another is arbitrary and inconsistent with theories of equity. The same facts give rise to both legal and conventional subrogation. In a situation where recovery from the wrongdoer is large enough to make both parties “whole,” no issue exists over which party’s rights prevail or which type of subrogation is controlling. However, it is often the case that it is not possible for one party, or even both parties, to be made “whole.”

In such situations, the equitable principles and objectives of subrogation are controlling. According to Couch, subrogation has dual objectives: “(1) preventing the insured from recovering twice for the one harm, as would be the case if he could recover from both the insurer and from a third person who caused the harm, and (2) reimbursing the surety for the payment which was made.” Couch on Insurance 2d (Rev. ed 1983 and Supp. 1996) Subrogation § 61:18, citing, Shipley v. Northwestern Mut. Ins. Co., 244 Ark. 1159, 428 S.W.2d. 268 (1968). Couch further states that “[e]quity will require that the insured be made whole before the insurer’s right to subrogation will arise.” Couch, Subrogation § 61:20.

Following Bough, an insurer is entitled to enforce its contractual right of subrogation after the insured has been folly compensated, or “made whole,” for his total loss. This precludes the insured from recovering twice for some of his or her damages; therefore, insurer is entitled to reimbursement from funds received by the insured from the third party when the insured receives more than the total of his or her loss. As stated by Professor Freedman, “the precise measure of reimbursement is the amount by which the sum received by the insured from the [third party], together with the insurance proceeds, exceeds the loss sustained and the expense incurred by the insured in realizing on his claim.” Warren Freedman, Freedman’s Richards on the Law of Insurance, v.2 § 12.6 (6th ed. 1990).

In the case at bar, it is undisputed that Franklin incurred over $124,000 in medical expenses, and Healthsource paid only $71,120.65 of those bills. Before the issue of double recovery could arise, Franklin would have to recover in excess of $50,000 to be “made whole” for his medical expenses alone — this does not consider the amount of additional damages Franklin incurred that have been valued at over $400,000. Based upon these facts, there is no possibility that Franklin could enjoy a double recovery.

To allow the literal language of an insurance contract to destroy an insured’s equitable right to subrogation ignores the fact that this type of contract is realistically a unilateral contract of insurance and overlooks the insured’s total lack of bargaining power in negotiating the terms of these types of agreements. See generally, Warren Freedman, Freedman’s Richards on the Law of Insurance, v. 2 § 12.6 (6th ed. 1990) citing Patterson, Essentials of Ins. Law (1935), p. 122. Moreover, the proposition that the rule in Bough would result in higher insurance premiums disregards the fundamental principle that insurers have been compensated through premiums paid in consideration their assuming these very risks. As Professor Patterson notes, “[s]ub rogation is a windfall to the insurer [which] plays no part in rate schedules (or only a minor one). ...” Id.

It is our conclusion that the equitable nature of subrogation requires that no distinction need be made between equitable and conventional rights of subrogation. An insured’s right to subrogation takes precedent over that of an insurer, so the insured must be wholly compensated before an insurer’s right to subrogation arises; therefore, the insurer’s right to subrogation arises only in situations where the recovery by the insured exceeds his or her total amount of damages incurred. For the foregoing reasons, we reverse and remand for proceedings not inconsistent with this opinion.

Reversed and remanded.

Newbern, Brown, and Imber, JJ., dissent.

Robert L. Brown, Justice,

dissenting. I dissent because I disagree that Higginbotham v. Arkansas Blue Cross and Blue Shield, 312 Ark. 199, 849 S.W.2d 464 (1993), should be overruled under the facts of this case. The majority adopts an absolute full-recovery rule which is at odds with the trend. Most recent cases hold that the clear and unambiguous terms of an insurance contract can modify the common law principle of full recovery, as discussed below. Indeed, the majority opinion cites no caselaw to the effect that a clear and unambiguous contract cannot alter full recovery. I further dissent because the majority misstates my concurring opinion in Higginbotham in an effort to designate Higginbotham a plurality decision. I clearly joined the majority in Higginbotham on the issue of whether the contract controlled when third-party benefits paid to the insured were for the same risk.

I. Conventional Subrogation

That an express contract can ultimately control the subrogation issue, even when an insured has not fully recovered from his loss, is obvious based on recent cases. See, e.g., Fields v. Farmers Ins. Co., Inc., 18 F.3d 831 (10th Cir. 1994); Wine v. Globe Am. Cas. Co., 917 S.W.2d 558 (Ky. 1996); Hershey v. Physicians Health Plan of Minn., Inc., 498 N.W.2d 519 (Minn. App. 1993), following Westendorf v. Stasson, 330 N.W.2d 699 (Minn. 1983) (requiring full recovery in absence of express contract terms to the contrary); Unified School Dist. No. 259 v. Sloan, 19 Kan. App. 2d 445, 871 P.2d 861 (1994) (following Higginbotham).

In Fields v. Farmers Ins. Co., Inc., supra, the Tenth Circuit Court of Appeals cited the general rule that an insurer is not entitled to subrogation until the insured has been fully compensated but then went on in no uncertain terms to state that the clear and unambiguous terms of an insurance contract can modify that common law principle:

Of those jurisdictions following the rule, many allow the rule to be overridden by provisions in an insurance contract. See, e.g., Shelter Ins. Co., 498 N.W.2d at 79; Higginbotham v. Arkansas Blue Cross & Blue Shield, 312 Ark. 199, 849 S.W.2d 464, 466-67 (Ark. 1993); Culver v. Insurance Co. of N. Am., 115 N.J. 451, 559 A.2d 400, 402-04 (1989); Hill v. State Farm Mut. Auto. Ins. Co., 765 P.2d 864, 868 (Utah 1988); Garrity, 253 N.W.2d at 515-16; Peterson v. Ohio Farmers Ins. Co., 175 Ohio St. 34, 191 N.E.2d 157, 159 (1963); but see Powell v. Blue Cross & Blue Shield, 581 So.2d 772, 111 (Ala. 1990) (“[A] prerequisite to the right of subrogation is the full compensation of the insured. In effect, an attempt to contract away this prerequisite . . . would defeat the right itself.”). As the Arkansas Supreme Court stated, “Without discounting the equitable properties of subrogation, we can conceive of no sound reason why broad principles of equity should be imbued with dominance over clear and specific provisions of a contract agreed to by the parties, at least where public policy considerations are wanting.” Higginbotham, 849 S.W.2d at 466.
Here, the clear language of the insurance contract provides that GEHA shall be subrogated to any recovery that plaintiff receives from the negligent third party or its insurer. Plaintiff has not identified, nor have we discerned, public policies that would compel the Oklahoma court to disregard the clear and unambiguous subrogation provisions of this insurance contract. We conclude that if faced with this issue, the Oklahoma Supreme Court would enforce the subrogation provisions on grounds that parties to an insurance contract are free to modify general common law principles that would apply absent express contractual provisions.

Fields, 18 F.3d at 835-36.

The Courts of Appeal in Hershey v. Physicians Health Plan of Minn., Inc., supra, and Unified School Dist. No. 259 v. Sloan, supra, and the Kentucky Supreme Court in Wine v. Globe Am. Cas. Co., supra, employ the same reasoning — clear and unambiguous language of an insurance contract may modify the full-recovery rule. In addition, Couch on Insurance contains the following statement on the effect of express policy provisions on the full-discovery rule: “Where the right of an insurer to subrogation is expressly provided for in the policy, its rights must be measured by, and depend solely on, the terms of such provisions.” 16 Couch on Insurance 2d § 61:23, p. 101 (1983).

We are hampered in the instant case by not knowing what the subrogation clause in the Healthsource policy provides. The policy is not part of the record in this case. Nevertheless, Health-source hangs its hat on the language of the assignment agreement, and that language reads:

ASSIGNMENT OF BENEFITS
I HEREBY ASSIGN TO HEALTHSOURCE ANY AND ALL BENEFITS PAYABLE BY ANY INSURANCE, INCLUDING BUT NOT LIMITED TO LIABILITY INSURANCE AND UNINSURED MOTORIST INSURANCE RELATING TO MY ACCIDENT/INJURY ON 3-31-94, TO THE EXTENT NECESSARY TO COVER ALL SERVICES RENDERED BY AND BENEFIT PROVIDED BY HEALTHSOURCE. I DO THIS WITH FULL UNDERSTANDING OF HEALTHSOURCE’S CONTRACTUAL RIGHTS OF RECOVERY/SUBROGATION AND COORDINATION OF BENEFITS. I AUTHORIZE HEALTH-SOURCE TO RELEASE INFORMATION NECESSARY TO PURSUE THIS CASE.

Here, though the first sentence of the assignment is clear, the second sentence appears to premise the assignment on Healthsource’s contractual rights in the insurance policy. Without knowing how the policy provides for subrogation rights in the carrier, we are left without an essential piece of the puzzle. This in itself is sufficient reason not to overrule Higginbotham. We do not know the full agreement of the parties. •

In short, the majority errs in adopting an absolute full-recovery rule which eliminates any possibility of an insured’s agreeing to subrogation or assignment with the carrier. There are ways to assure that the insured is fully apprised of an agreement and what benefits are being relinquished. Moreover, by eliminating subrogation, assignment, and indemnification across the board absent full recovery, insurance rates in Arkansas may well increase for all insureds. Should the insured be entitled to opt for a subrogation clause and lower premiums on the one hand or full recovery on the other? Perhaps not, but such a policy decision is better addressed by the General Assembly.

II. Holding in Higginbotham

Finally, Higginbotham was not a plurality opinion on the issue of whether an express contract can control subrogation for benefits paid out for the same risk. A contract can control that facet. My complete concurring opinion in Higginbotham follows:

I agree that Blue Cross should be subrogated under its insurance policy to benefits paid for the same risk that it covered which is medical care due to personal injury. Based on the record before us, it is impossible to tell what State Farm’s liability benefit of $25,000 involved. Presumably it was liability coverage for bodily injury only. Blue Cross should only recover by subrogation to the extent that there has been double recovery by the insured for the same damages covered by Blue Cross. Had the appellant shown that part of the State Farm benefits were for damages other than for medical treatment, I would disallow subrogation for the non-medical portion of the benefits paid for public policy reasons. However, that was not done, perhaps because the parties understood that the liability coverage only went to bodily injury. For that reason I concur with the opinion.

To summarize, the salient points of my concurring opinion were: (1) the insurance policy controlled the subrogation issue for benefits paid by a third-party carrier for the same risk; (2) Blue Cross should only recover under subrogation if the insured had recovered both from Blue Cross and the third-party carrier for the same risk (double-recovery); and (3) if benefits were paid in by the third-party carrier for a different risk, public policy should prevent Blue Cross from enforcing its subrogation rights. Subrogation after full recovery by the insured was not the issue in Higginbotham, as it is not the issue in the instant case. Thus, the term “double recovery” was used only in the sense of the insured receiving benefits from two carriers for the same risk.

I respectfully dissent.

Annabelle Clinton Imber, Justice,

dissenting. The majority’s opinion abolishes the precedent established only three years ago in Higginbotham v. Arkansas Blue Cross & Blue Shield, 312 Ark. 199, 849 S.W.2d 464 (1993), dissolves the legal distinction between equitable and conventional subrogation, and disregards the well-established doctrine in Arkansas that the parties to an insurance contract are free to determine the terms of their agreement. For these reasons, I must respectfully dissent.

First, the majority’s opinion overrules the well-reasoned precedent we established only three years ago in Higginbotham. This court has consistently recognized that the doctrine of stare decisis is of fundamental importance, and that our prior decisions should not be overruled unless great injury or injustice would result. Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996); Independence Fed. Bank v. Webber, 302 Ark. 324, 789 S.W.2d 725 (1990). According to the United States Supreme Court, adherence to precedent is necessary to promote “stability, predictability, and respect for judicial authority.” Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S. 197 (1991). As Justice Cardozo recognized many years ago, no judicial system could do society’s work if it eyed each issue afresh in every case that raised it. B. Cardozo, The Nature of the Judicial Process 149 (1921).

In no area of law is stare decisis more important than in contract law where the parties, such as Franklin and Healthsource, have relied on precedent when they executed a document that proscribed their respective legal rights. See Payne v. Tennessee, 501 U.S. 808 (1991); Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968). Most importantly, the United States Supreme Court has admonished that precedent should be abandoned only where the prior decision is unsound in principle, unworkable in practice, or significantly diluted. See Planned Parenthood v. Casey, 505 U.S. 833 (1992); Allied-Signal Inc. v. Director, Division of Tax, 504 U.S-768 (1992). None of these circumstances exist which would compel this court to abandon the precedent it established only three years ago in Higginbotham.

The majority characterizes the Higginbotham opinion as “a plurality opinion.” I disagree with this characterization. A majority of the Higginbotham court, as recognized injustice Brown’s separate dissenting opinion in this case, upheld conventional subrogation for the same damages.

The majority incorrectly states that “[fjollowing Bough, an insurer is entided to enforce its contractual right of subrogation.” (Emphasis added.) Rather, Shelter Mut. Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992), merely reaffirmed an insurer’s equitable right of subrogation. Moreover, the majority’s opinion dissolves the distinction we observed in Higginbotham between equitable and conventional subrogation by concluding that the “same facts give rise to both.” With this assertion, I also cannot agree. Equitable subrogation, as was utilized by the trial court in Bough, is a remedy imposed upon the parties by operation of law. In contrast, conventional subrogation, which occurred in Higginbotham, arises under the terms of a contract to which the parties specifically assented. This distinction is an important one because this court has consistently held that an insured may contract with his or her insurance carrier on whatever terms the parties agree so long as the terms are not contrary to statute or public policy. Pardon v. Southern Farm Bureau Casualty Ins., 315 Ark. 537, 868 S.W.2d 468 (1994); Shelter Gen. Ins. v. Williams, 315 Ark. 409, 867 S.W.2d 457 (1993).

This court recently held that the public policy of this State may be found in its constitution and statutes. Guaranty Nat’l Ins. Co. v. Denver Roller Inc., 313 Ark. 128, 854 S.W.2d 312 (1993). The right of subrogation between an insured and his or her insurance carrier is recognized in several places in the Code, and therefore cannot be said to be contrary to public policy. See e.g., Ark. Code Ann. §§ 23-89-101, 207, & 405 (Repl. 1992). Because a conventional subrogation agreement does not violate public policy, this court should enforce the terms of the contract to which the parties expressly agreed.

Of particular importance to this case is Ark. Code Ann. § 16-22-304 (Repl. 1994), whereby the public policy of this State allows attorneys to attach a statutory lien on their client’s settlement proceeds. In fact, by virtue of this statutory provision, Franklin’s attorneys were granted over one-third of Franklin’s settlement money despite the fact that he had not been made whole. Surely, if such a statutory provision is in accordance with this State’s public policy, then so too must an insured’s common law right to enter into a conventional subrogation contract be in accordance with the State’s public policy.

Furthermore, Franklin received the benefit of his subrogation contract when he allowed Healthsource to pay over $71,000 in medical benefits. This court should not allow him to escape his corresponding duty to reimburse Healthsource, to the extent possible, for this disbursement. See Ray v. Pearce, 264 Ark. 264, 571 S.W.2d 419 (1978); Williams Mfg. Co. v. Strasberg, 229 Ark. 321, 314 S.W.2d 500 (1958). It should also be noted that Healthsource only recouped approximately $14,000 of the $71,000 it spent on Franklin’s behalf. Therefore, neither Franklin nor Healthsource was “made whole” by Franklin’s tactical decision to accept $25,000 from the tortfeasor as full compensation for his injuries. In other words, both Healthsource and Franklin were damaged by the tortfeasor’s insolvency, and not by virtue of the subrogation agreement.

In sum, the Higginbotham decision was not only consistent with the well-established principles of contract law, but was also in accordance with the rule adopted by several other jurisdictions that the parties may, by contract, alter their rights to equitable subrogation such that the insured does not have to be made whole before the insurance carrier is entitled to reimbursement for the expenses it paid on the insured’s behalf. E.g., Martin v. Dillow, 637 N.E.2d 961 (Ohio Ct. App. 1994); Unified School Dist. No. 259 v. Sloan, 871 P.2d 861 (Kan. Ct. App. 1994); In re Estate of Scott, 567 N.E.2d 605 (Ill. App. Ct 1991) cert. denied, 575 N.E.2d 915 (Ill. 1991); Hill v. State Farm Mut. Auto. Ins. Co., 765 P.2d 864 (Utah 1988). In the majority’s opinion, this court has simply removed the parties’ freedom to determine the terms of their insurance agreement, and with such a result I cannot agree.

For these reasons, I cannot join in the majority’s departure from the legally sound, workable, and undiluted precedent established in Higginbotham. Therefore, I respectfully dissent.

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

       Appellant Franklin also appeals the validity of the subrogation agreement claiming that it was not a valid contract, that the entire contract between the parties was not in the record, and that the wording on the “questionnaire” was ambiguous. We do not address these issues because they are moot following our discussion of subrogation rights.

       This was a plurality decision.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Charles Edward RAY v. STATE of Arkansas
    CR 96-473
    941 S.W.2d 427
    Supreme Court of Arkansas
    Opinion delivered April 21, 1997

      Andrew L. Clark, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Charles Edward Ray pleaded guilty to, and was convicted of, simultaneous possession of drugs and a firearm, Ark. Code Ann. § 5-74-106 (Repl. 1993), possession of drug paraphernalia with the intent to use it, § 5-64-403 (Repl. 1993), and possession of a controlled substance, § 5-64-401 (Repl. 1993). He has appealed the conviction of violating § 5-74-106, a part of “The Arkansas Criminal Gang Organization or Enterprise Act,” for simultaneous possession of drugs and a firearm. He contends that his activities did not fall within the purview of the statute and that the law is unconstitutionally vague. As Mr. Ray has not satisfied the conditions for the limited exception we make to our rule disallowing appeals from guilty-plea proceedings, we must dismiss the appeal.

Arkansas R. App. P. — Crim. 1(a) provides, in part, “Except as provided by Ark. R. Crim. P. 24.3(b) there shall be no appeal from a plea of guilty or nolo contendere.” Arkansas R. Crim. P. 24.3 provides, in relevant part:

(b) With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

Other than an appeal from a sentence imposed by a jury after a plea of guilty, see Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994), Rule 24.3(b) provides the only procedure for an appeal from a conviction based on a guilty plea. Payne v. State, 327 Ark. 25, 937 S.W.2d 160 (1997); Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996).

In his statement of the case, Mr. Ray writes that his plea was a “conditional” plea. We find nothing in the record to support that statement. The plea agreement signed by Mr. Ray, his counsel, and the deputy prosecutor simply states Mr. Ray’s decision to plead guilty, his acknowledgment of the rights he is waiving, the offenses to which the plea applies, and the agreed recommendation of punishment of ten years’ imprisonment.

Absent compliance with the express terms of Rule 24.3(b), we acquire no jurisdiction to hear an appeal, even when there has been an attempt at trial to enter a conditional plea. Tabor v. State, supra; Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995).

Appeal dismissed.


author: Tom Glaze, Justice.

text:
    HOLT BONDING COMPANY, Inc. v. STATE of Arkansas
    96-1416
    942 S.W.2d 834
    Supreme Court of Arkansas
    Opinion delivered April 21, 1997

      Price Law Firm, by: Robert J. Price, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly Terry, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

In 1993, Carl Ford was charged with theft, and while his charges were pending, he was released upon appellant Holt Bonding Co., Inc., having issued a $5,000.00 appearance bond. Ford failed to appear in court at a pretrial-status hearing on May 2, 1994, and a show-cause hearing on June 6, 1994. As a consequence, the prosecuting attorney, on February 16, 1995, filed a motion to forfeit Holt Bonding Company’s bond, but the motion bore no certificate of service on the Company. On April 4, 1995, the trial court ordered the bond forfeited.

On July 12, 1995, the prosecutor filed another motion (again without a certificate of service), stating the bonding company had failed and refused to forfeit Ford’s appearance bond, and requesting the trial court issue a summons for Holt Bonding Company to show cause why the Company should not be held in contempt. The court set a show-cause hearing for that purpose on September 11, 1995. Holt Bonding Company did not appear at the September 11 hearing, and on February 12, 1996, the trial court entered an order again forfeiting the Company’s bond in the sum of $5,000.00, and specifying the order be entered as a judgment. On March 21, 1996, Holt Bonding Company moved to set aside the February 12 order, claiming that the State failed to comply with Arkansas’s law, Ark. Code Ann. § 16-84-201 (Supp. 1995), which establishes the procedure on bond forfeitures. On September 23, 1996, the trial court denied Holt Bonding Company’s motion, and the Company brings this appeal.

Holt Bonding Company’s argument must be considered premised upon the interpretation of § 16-84-201 as that statute read in 1994 and April of 1995 because the appearance bond in issue here was issued in December 1993, and the trial court’s first order forfeiting the bond was entered on April 12, 1995. That prior version of § 16-84-201 in pertinent part provided as follows:

(a) If the defendant fails to appear for trial or judgment, or at any other time when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court may direct the fact to be entered on the minutes, and shall issue an order requiring the surety to appear, on a date set by the court not less than 90 days nor more than 120 days after issuance of the order to show cause why the sum specified in the bail bond or the money deposited in lieu of bail should not be forfeited.
(c) If the defendant is surrendered, arrested, or good cause is shown for his failure to appear before judgment is entered against the surety, the court shall exonerate a reasonable amount of the surety’s liability under the bail bond. However, if the surety causes the apprehension of the defendant, or the defendant is apprehended within 120 days from the date of receipt of written notification to the surety of the defendant’s failure to appear, no judgment or forfeiture of bond may be entered against the surety, except as provided in subsection (e) of this section.
(d) If, after 120 days, the defendant has not surrendered or been arrested, prior to judgment against the surety, the bail bond or money deposited in lieu of bail may be forfeited. (Emphasis added.)

First, we note the prosecuting attorney’s motions filed on February 16, 1995 and July 12, 1995, reflect no service on Holt Bonding Company, thus indicating the company had no written notice that the trial court was considering forfeiture of its bond. Nor does the record reflect the court met the time requirements called for in § 16-84-201(a). In this respect, the record does not show the trial court issued an order requiring Holt Bonding Company to appear on a date set by the court not less than 90 days nor more than 120 days after the issuance of the order to show cause why the Company’s bail bond should not be forfeited.

As previously discussed, the initial April 4, 1995 order forfeiting the Company’s bond was entered without a show cause order having been issued and directed to Holt Bonding Company. We also point out that the April 4, 1995 forfeit order was entered only forty-seven days after the State filed its motion seeking bond forfeiture. Concerning the trial court’s second bond forfeiture order filed on February 12, 1996, the record shows that the State filed its motion on July 12, 1995, asking the trial court to issue a show-cause order on the Company, but after setting a hearing on that order for September 11, 1995, Holt was given only three days’ written notice of the hearing, and that notice was by summons served on John Holt, d/b/a Holt Bonding Company, rather than on the corporation.

The State concedes that the trial court’s forfeiture orders entered in this matter failed to meet the exact terms or requirements of § 16-84-201, however it asserts the procedures followed and orders issued accomplished the statute’s purpose. Citing Cornett v. Prather, 298 Ark. 108, 111, 737 S.W.2d 159, 160-61 (1987), the State suggests this court should look to the substance of motions and orders to ascertain what they seek. Alternatively, the State argues that, even if we conclude that the State had failed to comply with the notice and service requirements of § 16-84-201, Holt Bonding Company has shown no prejudice because the Company had received actual notice that forfeiture proceedings had been instituted against it by service having been made on John Holt, d/b/a Holt Bonding Company.

In AAA Bail Bond Co. v. State, 319 Ark. 327, 891 S.W.2d 362 (1995), this court considered the same 1993 version of § 16-84-201 we now have before us, and in particular, we stricdy construed the second sentence of subsection (c) which reads that, if the defendant was apprehended within 120 days from the receipt of written notification to the surety of the defendant’s failure to appear, no judgment or forfeiture bond could be entered against the surety. There, the State argued that, while AAA Bad Bond Company never received written notice of the criminal defendant’s nonappearance, the bond company admitted it had actual knowledge of the defendant’s failure to appear; therefore, it should not be permitted to utilize the statute to avoid its bond liability. This court rejected the State’s argument that substantial compliance with the terms in § 16-84-201 should suffice, and reversed the lower court’s forfeiture of AAA Bail Bond Company’s bond. That holding is binding in the present case.

By analogy, the AAA Bail Bond decision is consistent with this court’s earlier decisions dealing with statutory service requirements where the court has held that such requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Carruth v. Design-Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996); Wilburn v. Keenan Cos., 298 Ark. 461, 768 S.W.2d 531 (1989); Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978). In Wilburn, the court further held that actual knowledge of a proceeding does not validate defective process. 298 Ark. at 463, 768 S.W.2d at 532.

In conclusion, although we hold reversible error occurred from the State’s failure to comply with the tenets of § 16-84-201, we remand without prejudice. If the State on remand seeks forfeiture of the Holt Bonding Company bond, it now must do so pursuant to § 16-84-201, as amended by Act 1106 of 1995, since any such forfeiture proceedings will emanate from a show-cause order issued after Act 1106 went into effect.

       Section 16-84-201 was amended by Act 1106 of 1995 which became effective on July 28, 1995. Act 1106 made some minor changes and also added that the 120-day period begins to run from the date notice is sent by certified mail to the surety company at the address shown on the bond, whether or not it is received by the surety. These changes would not change the result reached in this decision, but if applied would only reinforce the holding, since no notice by certified mail was given Holt Bonding Company.


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

text:
    STATE of Arkansas, Office of Child Support Enforcement v. Tamara Dixon WALLACE
    96-663
    941 S.W.2d 430
    Supreme Court of Arkansas
    Opinion delivered April 21, 1997

      Burrow, Harlan & Childers, by: Bruce Harlan, for appellant.

      Daniel G. Ritchey, for appellee.
   Tom Glaze, Justice.

Appellee Tamara Dixon Wallace had a child and later established her eligibility to receive monetary support from Aid to Families with Dependent Children (AFDC). To receive that aid, Wallace assigned to the State Department of Fluman Services all child support to which she was entitled. The State in turn filed a paternity suit against the child’s putative father, Frank Lewis. Lewis eventually conceded paternity, and sought custody of the child. While the State, through its counsel, continued its representation to compel Lewis to pay monthly child support, it refused to defend Wallace against Lewis’s requests for custody and visitation, and would not represent her in seeking past child support, lying-in expenses, or reimbursement for past medical costs. Consequently, Wallace employed private counsel to represent her regarding the issues the State would not defend against or pursue.

The chancellor subsequently found Lewis to be the father of Wallace’s child, and ordered him to pay $42.00 per week in child support. The chancellor further entered judgment directing Lewis to pay $531.40 for lying-in expenses, $365.12 for past medical expenses, and awarded Wallace $3,320.00 in child-support arrearages. Lewis was ordered to pay the arrearage at the rate of $8.00 per week, which amount would be in addition to his regular monthly child support.

The State decided that, under Wallace’s assignment of her support rights, it would collect and retain the $8.00 arrearage payment along with Lewis’s regular support payment. Wallace responded by requesting the chancellor to enjoin the State from claiming and withholding the arrears because the State declined to seek back child support. The chancellor agreed with Wallace, and found the “unique circumstances” in this case precluded the State from collecting the weekly $8.00 payment. He further ordered that all such payments, on arrears, including future payments, should be paid directly to Wallace, and held the payments would not prejudice her rights to other AFDC benefits. The State brings this appeal, asserting the chancellor’s ruling violates state and federal law and should be reversed.

Wallace received AFDC assistance as determined under Ark. Code Ann. § 20-76-407 (Repl. 1991), and by accepting such assistance, she, as a recipient, assigned to the State Department of Human Services the following:

[A] ny rights to child support from any other person as the recipient may have (1) in his own behalf or in behalf of any other family member for whom the recipient is receiving assistance; and (2) accrued at the time of such assistance, or any portion thereof, is accepted. See Ark. Code Ann. § 20-76-410(c) (Repl. 1991); see also 42 U.S.C. § 602(a)(8)(A)(vi) and (a)(26)(A) (Supp. 1997).

We agree with the State that § 20-76-410(c) and § 602(a) (26) (A) generally provide that DHS is assigned all rights to child-support payments, including those in arrears, to which an AFDC recipient is entitled. However, the issue in the present case is whether the State is estopped from claiming those back child-support payments awarded to Wallace because it had refused to represent her in establishing her claim for arrears.

The following four elements are necessary to establish estoppel: (1) the party to be estopped must know the facts; (2) the party to be estopped must intend that the conduct be acted on or must act so that the party asserting the estoppel had a right to believe it was so intended; (3) the party asserting the estoppel must be ignorant of the facts; and (4) the party asserting the estoppel must rely on the other’s conduct and be injured by that reliance. Arkansas Dep’t of Human Servs. v. Estate of Lewis, 325 Ark. 20, 922 S.W.2d 712 (1996). In Lewis, this court recognized that, while estoppel is not readily available against the State, our court has applied the doctrine of estoppel against the State where an affirmative misrepresentation by an agent or agency of the State has transpired. See also Foote’s Dixie Dandy v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980).

In the present case, the State, through its Child Support Enforcement Unit, affirmatively instructed Wallace that it would not represent her in seeking any back child support, and if Wallace wanted to seek arrears in support, she would need to hire a private attorney. In fact, the State’s attorney confirmed, at trial, the State’s position in this matter by stating the following:

And in [Wallace’s] case, I mean, I specifically had a conversation with her to that extent. Everything in that statement is true. She was required, I believe to hire Mr. Ritchey to represent her primarily because of the custody action. She requested of Child Support help with regard to the back support and I told her that was not something we would pursue and if she hired a private attorney, it was something that they could pursue. That’s the reason, Your Honor, that I think collateral estoppel [sic, estoppel] applies, otherwise the State would have been entitled to that judgment.
Now, obviously we’ve changed our policy since then, but this case is one of the reasons that we’ve changed our policy, obviously. But that’s the reason that I cannot get up here and could not, in good faith, tell the Court that we were entitled to that judgment. Ms. Wallace pursued the judgment, she hired Mr. Ritchey to pursue the judgment. They’re collecting the judgment. (Emphasis added.)

Relying on the State’s instruction, Wallace employed counsel who successfully obtained a $3,320.00 judgment against Lewis for past support. Based on the record before us, we conclude the State is estopped from obtaining any benefits resulting from Wallace’s judgment for arrearage.

At this point, we mention the State’s argument that, while the State may concede that it is estopped from claiming Wallace’s judgment for back support, the State should not be precluded from collecting the payments made on that judgment, so long as Wallace receives AFDC benefits. The State’s argument attempts to acknowledge and concede the application of estoppel to the point of obtaining the judgment for arrears, but suggests estoppel ends when the arrears are collected. The State offers no citation of authority for this proposition, and we know of none.

The State’s second argument is that the $8.00 weekly support payments received by Wallace should be considered as income, and the State should be allowed to factor in such payments when determining Wallace’s amount of assistance under § 20-76-407. Because this argument was not raised below, we do not consider it on appeal.

For the reasons discussed, we affirm.

Newbern, J., dissents.

David Newbern, Justice,

dissenting. The majority opinion correctly identifies the elements of estoppel. I dissent because the facts presented do not show an affirmative misrepresentation on the part of the State. The facts also fail to show that Tamara Wallace was ignorant of any relevant fact concerning the assignment of her rights to the State.

It is undisputed that Ms. Wallace, in exchange for AFDC payments from the State, assigned to the State “all rights, title and interest in any support” that she had in her own behalf or in behalf of any person for whom she received AFDC. It is also undisputed that Ms. Wallace received $162 each month from the state in AFDC benefits. At the hearing on the petition, Ms. Wallace admitted that she read and signed the form that was attached and that her caseworker explained the assignment of back support rights to her.

In her petition for relief, Tamara Wallace alleged that she was informed by the State that she would have to hire private counsel for her custody action and to pursue back support, lying-in expenses, and attorney’s fees. The petition claims that the State refused to help her with these claims, that she hired private counsel, and that after recovering a judgment, the State collected the payments on the judgment. The petition contains no claim that the State promised to waive the rights she previously assigned. Likewise, the stipulation of facts entered into between Ms. Wallace and the State fails to show any promise by the State concerning the assignment of rights.

Prior to 1980, the State could not be estopped by the actions of its agent. In Foote’s Dixie Dandy v. McHenry, Adm’r, 270 Ark. 816, 607 S.W.2d 323 (1980), we abandoned the principle that the State can never be estopped but stated that estoppel is not a defense that should be readily available against the State. We also identified four elements that must be present in order to apply estoppel to a sovereign: (1) the party to be estopped must know the facts; (2) the party to be estopped must intend that the conduct be acted on or must act so that the party asserting the estoppel had a right to believe it was so intended; (3) the party asserting the estoppel must be ignorant of the facts; and (4) the party asserting the estoppel must rely on the other’s conduct and be injured by that reliance.

The specific reference to actions or statements by a State agent underscores the need for some affirmative act as a prerequisite to a judicial finding of estoppel. Arkansas Dep’t of Human Services v. Estate of Lewis, 325 Ark. 20, 922 S.W.2d 712 (1996). Estoppel should not be applied where there is no clear proof of an affirmative act amounting to misrepresentation by the agency. Everett v. Jones, 277 Ark. 162, 639 S.W.2d 739 (1982).

In Arkansas Dep’t of Human Services v. Estate of Lewis, supra, a case cited by the majority, we quoted from Everett v. Jones, supra, as follows:

Certainly, we do not intend that the Foote’s doctrine be extended to a nebulous and indefinite situation where the agent of the State has not clearly caused the claimant to [hold a particular belief] .... Before the State is estopped from applying this law there must be substantial evidence that the citizen relied upon actions or statements by an agent of the State.

Since Foote’s Dixie Dandy v. McHenry, supra, we have refused to apply the doctrine of estoppel against the State unless an affirmative misrepresentation by an agent or agency of the State was clearly shown. Arkansas Dep’t of Human Services v. Estate of Lewis, supra; Everett v. Jones, supra. Further, we have refused to apply the doctrine when there is no showing of reliance upon a misleading action. Hope Educ. Ass’n v. Hope School Dist., 310 Ark. 768, 839 S.W.2d 526 (1992); Arkansas Alcoholic Beverage Control Div. v. Person, 309 Ark. 588, 832 S.W.2d 249 (1992); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm’n, 275 Ark. 164, 628 S.W.2d 555 (1982).

The facts of this case reveal neither a misleading action on the part of the state nor justifiable reliance. Ms. Wallace does not even claim that she was ignorant of any of the relevant facts. The majority’s decision to estop the State is not supported by the facts. We should follow the standards espoused in Arkansas Dep’t of Human Services v. Estate of Lewis, supra, and once again refuse to expand the Foote’s Dixie Dandy doctrine to encompass incidents devoid of affirmative misrepresentation.


author: Donald L. Corbin, Justice.

text:
    Linda H. LEE, et al. v. F.G. “Buddy” VILLINES, Pulaski County Judge, et al.
    96-817
    942 S.W.2d 844
    Supreme Court of Arkansas
    Opinion delivered April 21, 1997
    [Petition for rehearing denied May 27, 1997.]

      The Perroni Law Firm, P.A., by: Samuel A. Perroni, for appellants.

      Pulaski County Attorney’s Office, by: Karla Burnett, Staff Attorney, for appellees.

       Imber, J., not participating.

   Donald L. Corbin, Justice.

This is the second appeal of this case, which involves Circuit Judge Marion Humphrey’s granting of administrative leave to Appellants, Judge Humphrey’s secretary, case coordinator, bailiff, assistant bailiff, probation officer, and law clerk, for the approximately two-week period in May 1993, when the Pulaski County Courthouse was being temporarily relocated for renovations. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(10) (as amended by per curiam July 15, 1996). We find no merit to the appeal and affirm.

Appellee, County Judge F.G. “Buddy” Villines, advised Judge Humphrey that he had been without authority to grant Appellants administrative leave. Appellants filed suit in chancery court against Appellees after Villines had issued an executive order directing the county comptroller to deduct either vacation time or compensation from each Appellant to cover the period they did not work. Appellants claimed economic loss and denial of due process. The chancellor on assignment, John Lineberger, entered a permanent injunction preventing the comptroller from deducting either vacation time or compensation from Appellants. In the first appeal, Villines v. Lee, 321 Ark. 405, 902 S.W.2d 233 (1995), this court reversed the chancellor’s decision for equity’s lack of subject-matter jurisdiction over writs of mandamus and directed that the case be transferred to circuit court. The case was then heard by the same judge, John Lineberger, sitting as circuit judge on assignment. The circuit judge held a hearing and ultimately entered an order dismissing Appellants’ claim with prejudice. This appeal is from the order of dismissal.

Appellants raise four points for reversal of the order of dismissal. We cannot conduct a meaningful review of all four arguments, however, because neither the transcript nor the abstract contains the March 25, 1996 memorandum opinion to which the order of dismissal refers; Appellants did not include the March 25, 1996 memorandum opinion in their designation of record. The order of dismissal states in its entirety: “In accordance with the Court’s Memorandum Opinion of March 25, 1996, it is hereby Ordered, Decreed, and Adjudged that the Plaintiffs petition is without merit and is dismissed with prejudice.” Thus, we are left with only the bare conclusion to dismiss, and, therefore, cannot review the trial court’s reasoning or any of its findings leading to that conclusion. See Sturch v. Sturch, 316 Ark. 53, 870 S.W.2d 720 (1994).

Appellants’ first point for reversal is a request to review the dismissal, and the record on appeal is sufficient for our review of this point. Appellants contend that the circuit court erred in dismissing the mandamus proceeding to compel Appellee Villines to rescind his executive order. Appellants argue that, pursuant to Ark. Code Ann. §§ 16-13-1409(d)(4), -1410(d)(5), -1411(d)(4), - 1412(e)(4), -1413(d)(2), and -1414(d)(4) (Repl. 1994), counties must give employees of circuit judges the same benefits as county employees. Thus, their argument continues, that the crediting of benefits to them as employees is a ministerial act subject to a writ of mandamus. Appellants rely on Venhaus v. State, 285 Ark. 23, 684 S.W.2d 252 (1985), where this court held that quorum courts and county judges have jurisdiction over local matters only and that circuit courts and their employees are not local matters.

Appellees respond that Act 286 of 1989 amended the above-cited statutes to provide that circuit court employees “shall be treated by Pulaski County in the same manner as other Pulaski County employees for all other purposes.” Thus, Appellees argue that because no other employees received the approximate two weeks off that Appellants did, in order for Appellants to be treated as all other county employees, they must be charged in accordance with the county’s policy with either vacation time or money for the period in question.

The language of Act 286 is clear and mandates that circuit court employees be treated as other county employees. This language was enacted after Venhaus, 285 Ark. 23, 684 S.W.2d 252. In addition, the issue in Venhaus was whether the quorum court had authority to set the salary of circuit court employees, not, as is the issue presented in this case, whether the quorum court has authority to enforce the county’s leave-time policy. It is not disputed that Appellants were the only employees who did not work during the period in question. We thus conclude that it was Appellee Villines’s ministerial duty to treat Appellants the same as all other county employees and that the executive order accomplished the equality of treatment. Accordingly, Appellants have not demonstrated that mandamus should issue to direct Appellees to rescind the executive order, and the circuit court did not err in dismissing the petition.

Appellants’ second and third points for reversal require review of specific findings by the circuit judge — that Appellee Villines was exercising a discretionary function when he issued the executive order and that he could legally issue the executive order. As previously stated, we cannot determine from this record that these specific findings were made by the trial court. We will not make such an assumption. Moreover, as there are no such findings in this record, it makes our review of them practically impossible. We have stated time and time again that it is the appellant’s burden to produce a record on appeal sufficient for our review. Ozark Auto Transp., Inc. v. Starkey, 327 Ark. 227, 937 S.W.2d 175 (1997).

Appellants’ fourth and final point for reversal is that the circuit court erred in failing to consider equitable estoppel as a cause of action. While there is no written finding in this record for our review, there is in the abstract such a finding from the bench. The circuit judge stated from the bench that he interpreted this court’s decision to transfer the case to circuit court as a statement that, although equitable estoppel may be raised in both equity and law courts, there would be no need to transfer to circuit court if this particular claim existed in chancery court. We conclude the circuit judge interpreted this court’s first decision correcdy, and we find no error in his ruling.

The order of dismissal is affirmed.

Brown, J., concurs.

Imber, J., not participating.

I


author: Robert L. Brown, Justice.

text:
    BOARD OF TRUSTEES for the City of Little Rock Police Department Pension and Relief Fund v. Mark STODOLA, Prosecuting Attorney; City of Little Rock, Arkansas; Pulaski County, Arkansas; Colonel Tommy Goodwin, Director of the Arkansas State Police; and Jimmie Lou Fisher, Treasurer of the State of Arkansas
    96-948
    942 S.W.2d 255
    Supreme Court of Arkansas
    Opinion delivered April 21, 1997

      Edward G. Adcock and Tell Hulett, for appellant.

      Winston Bryant, Att’y Gen., by: Patricia Van Ausdall, Asst. Att’y Gen., for appellees Mark Stodola, Colonel Tommy Goodwin, and Jimmie Lou Fisher.

      Office of the City Attorney, by: Thomas M. Carpenter, for appellee City of Little Rock, Arkansas.

      Pulaski County Attorney’s Office, by: Pat Crossley, and Stephen Cobb, for appellee Pulaski County, Arkansas.
   Robert L. Brown, Justice.

Appellant Board of Trustees for the City of Little Rock Police Department Pension and Relief Fund (Board) sued for a judgment declaring that certain proceeds from property seized or forfeited in drug-trafficking cases be paid into the city’s police pension fund. Named in the suit as defendants were the City of Little Rock, Pulaski County, the prosecuting attorney for the Sixth Judicial District, the director of the Arkansas State Police, and the State Treasurer. At issue is the interpretation of two Arkansas statutes, one which deals with confiscated goods in a city (Ark. Code Ann. § 24-11-415 (Repl. 1996)), and one dealing with forfeited property in drug cases (Ark. Code Ann. § 5-64-505 (k) (Repl. 1993)). The trial court ruled that § 5-64-505(k) controls. We agree and affirm.

On May 13, 1994, the Board filed its complaint against the appellees and sought a judgment declaring that § 24-11-415 be construed in conjunction with § 5-64-505 (k) to require that proceeds from personal property forfeited under the Uniform Controlled Substances Act be paid into the city’s police pension fund. The Board alleged that no proceeds derived from the sale of goods forfeited under the Uniform Controlled Substances Act were being paid into the fund. The Board also sought an accounting of moneys to which it was entitled and attorneys fees.

The answer filed by the prosecutor, State Police Director, and State Treasurer denied that money derived from the sale of goods forfeited under § 5-64-505 (k) had to be paid into the city’s police pension fund under § 24-11-415. They further asserted that the two statutes were in conflict and could not be construed harmoniously. Additionally, they maintained that the Board had failed to state facts upon which relief could be granted.

The City of Little Rock filed its answer and specifically denied that the city’s police pension fund was underfunded and otherwise denied that the Board was entitled to relief. Pulaski County answered in the same vein and moved for a dismissal under Ark. R. Civ. P. 12(b)(6).

The Board next moved for partial summary judgment on the construction of the two statutes in question and urged that there were no genuine issues of material fact. It sought a declaration that it was to receive the proceeds from the sale of assets seized or forfeited in the city under § 5-64-505 (k). The crux of the Board’s argument was that the two statutes could be read together and harmoniously because § 5-64-505 (k) concerned how funds were to be acquired through forfeiture and sale, while § 24-11-415 directed how the proceeds derived from the sale of confiscated goods should be distributed.

Appellees responded with myriad reasons for interpreting the two statutes as antagonistic to each other. In their responses, they argued: (1) that the later statute, § 5-64-505(k), would control over the former, § 24-11-415; (2) that the more specific statute, § 5-64-505(k), which concerns items forfeited under the Uniform Controlled Substances Act and provides for distribution of those proceeds to Drug Control Funds for law enforcement and prosecutorial purposes, governs the more general statute, § 24-11-415, which has no limitation on the proceeds to be paid into the fund; and (3) that the intent of the General Assembly would be thwarted in that the funds received under § 5-64-505 (k) were to be used to fight the war against drug trafficking.

After a hearing, the trial court denied the Board’s motion for partial summary judgment. The trial court determined that the two statutes were irrevocably in conflict regarding the distribution of proceeds from the sale of personal property valued at less than $250,000 acquired and that § 5-64-505(k) implicitly repealed § 24-11-415 to the extent of the conflict. The trial court based its decision on the general rule that the more specific statute, § 5-64-505(k), governed the general statute, § 24-11-415. The trial court further emphasized that the legislative purpose behind § 5-64-505(k) was to provide money to combat drug trafficking. After entering its order and at the Board’s request, the trial court issued a final order dismissing the cause of action.

This case turns on our interpretation of the two statutes at issue — § 24-11-415 and § 5-64-505(k). Section 24-11-415 reads:

In all cities and towns, the proceeds derived from the sale of all confiscated goods which are required by the laws of this state to be sold if they were confiscated by a police officer of the city, or by the sheriff or Arkansas State Police within the city, shall be deposited in the city’s policemen’s pension and retirement fund.

Ark. Code Ann. § 24-11-415 (Repl. 1996). This statute has not been amended since its enactment in 1977. See 1977 Ark. Acts 745 § 1.

The relevant portion of § 5-64-505 reads:

(k)(l) Whenever property is forfeited under subchapters 1-6 of this chapter, the circuit court shall enter an order:
(ii) To sell that which is not required by law to be destroyed and which is not harmful to the public. Such property shall be sold at a public sale to the highest bidder, and if not sold at public sale, the court may permit a private sale. The proceeds of any sale and any moneys forfeited or obtained by judgment or setdement under subchapters 1-6 of this chapter shall be deposited in the special asset forfeiture fund of the attorney for the state.
(2) The attorney for the state shall administer expenditures from the fund. The fund is subject to audit by the Division of Legislative Audit. Moneys in the fund must be distributed in the following order:
(i) For satisfaction of any bona fide security interest or lien;
(ii) For payment of all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, and court costs; and
(iii) Any balance under two hundred fifty thousand dollars ($250,000) shall be distributed proportionally so as to reflect generally the contribution of the appropriate local or state law enforcement or prosecutorial agency’s participation in any of the activities that led to the seizure or forfeiture of the property or deposit of moneys under subchapters 1-6 of this chapter;
(iv) Any balance over two hundred fifty thousand dollars ($250,000) shall be forwarded to the Department of the Arkansas State Police to be transferred to the State Treasury for deposit in the Special State Assets Forfeiture Fund for distribution as provided in subsection (1).
(4) (i) There is created on the books of law enforcement agencies and attorneys for the state a Drug Control Fund. The Drug Control Fund shall consist of all moneys obtained under subsection (1) and other revenues as may be provided by law or ordinance. . . ,
(ii) The law enforcement agencies and attorneys for the state shall submit to the State Drug Director on or before January 1 and July 1 of each year a report detailing all moneys received and expenditures made from the Drug Control Fund during the preceding six-month period.

Ark. Code Ann. § 5-64-505 (k) (Repl. 1993).

Our rules of statutory construction and interpretation have been often repeated:

The first rule in interpreting a statute is to construe it just as it reads by giving words their ordinary and usually accepted meaning. Arkansas Vinegar Co. v. Ashby, 294 Ark. 412, 743 S.W.2d 798 (1988). Statutes relating to the same subject should be read in a harmonious manner if possible. All statutes on the same subject are in pari materia and must be construed together and made to stand if capable of being reconciled. ... In interpreting a statute and attempting to construe legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate matters that throw light on the matter. Hanford Produce Co. v. Clemons, 242 Ark. 240, 412 S.W.2d 828 (1967).

City of Ft. Smith v. Tate, 311 Ark. 405, 409-10, 844 S.W.2d 356, 359 (1993) (emphasis in original).

In considering the plain language of both statutes at issue, it is manifest that both call for a different disposition of funds when the amount raised from the sale of forfeited personal property is less than $250,000. This is apparent from the mandated creation of “Drug Control Funds” under § 5-64-505 (k) and the fact that law enforcement and prosecutorial agencies which receive moneys in proportion to their involvement in seizing the property must receive the money out of those funds. On the other hand, under § 24-11-415, the money pours into the city’s police pension fund regardless of which law enforcement agency confiscates the goods as long as the confiscation occurs in the city. Thus, the critical question becomes whether the two statutes govern the same subject matter. We conclude that they do in that both statues deal, in pertinent part, with confiscated or forfeited personal property. According to Webster’s Third New International Dictionary, the word “confiscate” means “to seize as forfeited to the public treasury.” Webster’s Third New International Dictionary 476 (1993). Thus, the term “confiscated” appears to be interchangeable with the phrase “seized or forfeited” used in § 5-64-505.

The Board urges that because the two statutes govern confiscated personal property, they are in pari materia and must be construed harmoniously, if capable of reconciliation. See Salley v. Central Arkansas Transit Auth., 326 Ark. 804, 934 S.W.2d 510 (1996); City of Ft. Smith v. Tate, supra. According to the Board, § 5-64-505 (k) is not clear and certain as to what purpose the proceeds under $250,000 derived from personal property forfeited in Little Rock should be utilized. The statute requires that it be distributed proportionally to law enforcement and the prosecutor participating in the seizure and forfeiture, but beyond that, according to the Board, the statute is not specific. Thus, the Board’s theory goes, the money should be paid into the city’s police pension fund under § 24-11-415.

We disagree. We read § 5-64-505 (k) as providing not only that proceeds from forfeited property under $250,000 be paid to the participating law enforcement agency and prosecutor, but that those proceeds must be paid into Drug Control Funds, and that money must be used for law enforcement and prosecutorial purposes in connection with curbing drug trafficking.

It is true that Act 87 of 1989, which added § 5-64-505(k), had no general repealer clause. See 1989 Ark. Acts 87 § 4, 3rd Ext. Sess. It is further true that repeals by implication are not favored. Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994); Moore v. McCuen, 317 Ark. 105, 876 S.W.2d 237 (1994). Yet, a repeal by implication does transpire when there exists an “invincible repugnancy” between the earlier and the later statutory provisions. Donoho v. Donoho, 318 Ark. at 639, 887 S.W.2d at 291.

Two other principles of statutory construction assist us in arriving at this conclusion. Section 5-64-505 (k) is a specific statute that concerns the forfeiture of personal property related to drug trafficking. Section 24-11-415 is more general and relates to proceeds from any goods confiscated in connection with any crime within the city. A general statute must yield when there is a specific statute involving the particular subject matter. See Donoho v. Donoho, supra; Cozad v. State, 303 Ark. 137, 792 S.W.2d 606 (1990); Conway Corp. v. Construction Eng’rs, Inc., 300 Ark. 225, 782 S.W.2d 36 (1989). There is, too, the fact that § 5-64-505(k) (Act 87 of 1989) was enacted after § 24-11-415 (Act 745 of 1977), a factor to which we have given credence in statutory interpretations. Donoho v. Donoho, supra; Moore v. McCuen, supra; Uilkie v. State, 309 Ark. 48, 827 S.W.2d 131 (1992).

In sum, we affirm the trial court’s decision that § 5-64-505(k) effected a repeal by implication of § 24-11-415 in drug trafficking cases. Both statutes deal with seized personal property and in some cases they do overlap. But when the seized personal property results from drug trafficking, § 5-64-505 (k) controls and the proceeds under $250,000 resulting from the forfeiture sales must be distributed into the Drug Control Funds in accordance with that statute. The clear intent behind § 5-64-505 (k), as expressed by the General Assembly in the Emergency Clause of Act 87 of 1989 and as found by the trial court, is to provide additional tools to confront drug trafficking. Proceeds flowing into the Drug Control Funds established by the Act are created for that very purpose.

Affirmed.

       The codified statute (§ 5-64-505(k)) appears to refer erroneously to subsection (1). The Act of the General Assembly, Act 87 of 1989, at section 4(k)(4)(i) clearly refers to subsection (1). This issue was not raised by the parties on appeal.


author: Annabelle Clinton Imber, Justice.

text:
    Joe McCUTCHEN v. Mike HUCKABEE, Governor of the State of Arkansas; Richard Weiss, Director of the Arkansas Department of Finance and Administration; The Multi-purpose Civic Center Facilities Board for Pulaski County, Arkansas
    96-1508
    943 S.W.2d 225
    Supreme Court of Arkansas
    Opinion delivered April 21, 1997
    [Petition for rehearing denied May 27, 1997.]

      Oscar Stilley, for appellant.

      Williams & Anderson, by: Timothy W. Grooms, Leon Holmes, Jeanne L. Seewald, and J. Madison Barker, for appellee Multi-Purpose Civic Center Facility Board.

      Pulaski County Attorney’s Office, by: Pat Crossley, amicus curiae; joined by: Arkansas Municipal League, by: Don Zimmerman; Association of Arkansas Counties, by: Shep Russell; Hot Springs City Attorney’s Office, by: David White, for the Hon. Robin Mays.

   Annabelle Clinton Imber, Justice.

The appellant, Joe McCutchen, has challenged the constitutionality of Act 739 of 1995 whereby the Arkansas General Assembly appropriated 20 million dollars for the construction of a multipurpose civic center in Pulaski County. The chancellor ruled that the Act was constitutional, and accordingly, it granted the State’s motion for summary judgment. We affirm.

The facts of this case are undisputed. On or about March 10, 1995, the Arkansas General Assembly passed Act 739 of 1995 whereby 20 million dollars were appropriated to the Department of Finance and Administration to defray the cost for construction of a multipurpose civic center in Pulaski County. The relevant provisions of Act 739 are as follows:

SECTION 1. APPROPRIATIONS. There is hereby appropriated, to the Department of Finance and Administration, — Disbursing Officer, to be payable from the General Improvement Fund or its successor fund or fund accounts, the following:
(A) For assisting local governments located in Pulaski County, Arkansas in defraying the cost associated with constructing and equipping a multi-purpose civic center, the sum of.................................. $20,000,000.

The governor signed Act 739 on March 22, 1995, and by virtue of an emergency clause contained therein, the Act became effective on July 1, 1995.

On August 23, 1995, the Pulaski County Quorum Court enacted Ordinance No. 95-OR-64 which created the Multi-purpose Civic Center Facility Board for Pulaski County, Arkansas. By virtue of the Ordinance, the Facility Board was granted various powers necessary for the construction of the civic center, and the board was granted ownership of the facility. Since the enactment of Act 739, the Arkansas Department of Finance and Administration has paid 11 million dollars to Pulaski County, which in turn tendered the funds to the Facility Board.

On December 21, 1995, Joe McCutchen, as a representative of the taxpayers in Arkansas, filed a complaint in the Pulaski County Chancery Court challenging the constitutionality of Act 739. McCutchen named the Governor, the Director of the Arkansas Department of Finance and Administration, the Members of the Facility Board, and Pulaski County as defendants (the “State”). Both parties subsequently filed motions for summary judgment in which they claimed that the material facts were undisputed, and that each side was entitled to a judgment as a matter of law.

On September 11, 1996, the chancery court conducted a hearing on the motions for summary judgment. During the hearing, the court took judicial notice of the following facts: 1) Pulaski County is the most populous county in the state, 2) according to the 1990 census, Pulaski County had a population of 349,660 while the next largest county, Washington County, had a population of only 113,409, 3) Pulaski County is centrally located within the state, and 4) Pulaski County is the seat of the state government. The trial court concluded that the General Assembly rationally decided that a civic center located in Pulaski County would enhance tourism, recreation, and economic development of the entire state, and therefore the Act withstood McCutchen’s various constitutional challenges.

Accordingly, on September 19, 1996, the chancery court denied McCutchen’s motion for summary judgment and granted summary judgment in favor of the State. From this order, McCutchen filed a timely notice of appeal.

McCutchen appeals from the trial court’s granting of summary judgment to the State. In Milam v. Bank of Cabot, 321 Ark. 256, 937 S.W.2d 653 (1997), we recently summarized our review of a trial court’s grant of summary judgment as follows:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.

In this appeal, McCutchen raises five constitutional challenges to Act 739 of 1995. It is well settled that acts of the General Assembly are presumed to be constitutional and will be struck down only where there is clear incompatibility between the act and the state constitution. Stratton v. Priest, 326 Ark. 469, 932 S.W.2d 321 (1996); Fayetteville Sch. Dist. No. 1 v. Arkansas State Bd. of Educ., 313 Ark. 1, 852 S.W.2d 122 (1993). Therefore, as the opponent of Act 739, McCutchen bears the burden of proving that the statute violates any of the provisions of the Arkansas Constitution. Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996).

1. Amendment Í4

For his first argument on appeal, McCutchen contends that Act 739 of 1995 violates Amendment 14 to the Arkansas Constitution which states that “[t]he General Assembly shall not pass any local or special act.” In Fayetteville Sch. Dist. No. 1 v. Arkansas State Bd. of Educ., 313 Ark. 1, 852 S.W.2d 122 (1993), we differentiated that “special” legislation arbitrarily separates some person, place, or thing, while “local” legislation arbitrarily applies to one geographic division of the state to the exclusion of the rest of the state. On appeal, McCutchen asserts that Act 739 is unconstitutional “local” legislation because it uses state funds for the sole benefit of Pulaski County.

Before resolving the merits of this issue, we must first clarify the appropriate standard of review to be applied to Amendment 14 challenges. McCutchen argues that the chancellor improperly applied the “rational basis” test instead of the “rational relationship” test. We find that this argument is merely a matter of semantics because this court has used the two phrases interchangeably, even within the same opinion. See, e.g., Fayetteville, supra; Owen v. Dalton, 296 Ark. 351, 757 S.W.2d 921 (1988).

McCutchen further asserts that if an act, on its face, applies to only one geographic subdivision of this state, it is per se unconstitutional ■ as a violation of Amendment 14. To the contrary, this court has repeatedly held that merely because a statute ultimately affects less than all of the state’s territory does not necessarily render it local or special legislation. Fayetteville, supra; City of Little Rock v. Waters, 303 Ark. 363, 797 S.W.2d 426 (1990).

Instead, we have consistently held that an act of the General Assembly that applies to only a portion of this state is constitutional if the reason for limiting the act to one area is rationally related to the purposes of that act. Fayetteville, supra; Owen, supra; Board of Trustees v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). Of particular interest, is Phillips v. Giddings, 278 Ark. 368, 646 SW.2d 1 (1983), where we clarified that although there may be a legitimate purpose for passing the act, it is the classification, or the decision to apply that act to only one area of the state, that must be rational.

By its clear terms, Act 739 of 1995 applies only to Pulaski County; hence, the relevant inquiry is whether there is a rational reason for applying this act to one county in this state. In making this determination, this court may look outside the act and consider any fact of which judicial notice may be taken to determine if the operation and effect of the law is local, regardless of its form. Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984); Webb v. Adams, 180 Ark. 713, 23 S.W.2d 617 (1929).

The purpose of Act 739 of 1995 was to provide funds for the construction of a multipurpose civic center which would increase tourism, recreation, and economic development throughout the entire state. In order to achieve these purposes, Pulaski County could have been selected as a regional location for the civic center because of the following judicially noticed facts: 1) Pulaski County is the most populous county in the state; 2) Pulaski County is centrally located within the state; and 3) Pulaski County is the seat of state government. We cannot say that these reasons are either arbitrary or capricious. Moreover, as we noted in Berry v. Gordon, 231 Ark. 547, 376 S.W.2d 279 (1964), it is not the business of this court to second-guess the wisdom of the legislature. Therefore, we must conclude, as did the trial court, that the decision to construct the civic center in Pulaski County was rationally related to the intended purposes of Act 739 of 1995.

In reaching this decision we are not unmindful of Humphrey v. Thompson, 222 Ark. 884, 263 S.W.2d 716 (1954), where this court held that Act 273 of 1953, which appropriated funds for the construction of a vocational school in Perry County, was unconstitutional because it violated Amendment 14. As in this case, the General Assembly had a rational reason for wanting to create a vocational school. Id. This court, however, ruled that Act 273 was unconstitutional because we could find no reason why the General Assembly chose to locate the school in Perry County as opposed to any other county in the state. Id. In other words, the purpose of the act was rational, while the classification or discrimination against other counties in the state was not. As explained above, this problem does not duplicate itself in Act 739 because there is a rational reason for locating the civic center in Pulaski County.

In sum, because the decision to locate the civic center in Pulaski County was rationally related to the purposes of the Act, the trial judge properly concluded that Act 739 was not local legislation. Therefore, we affirm the trial court’s ruling that Act 739 of 1995 does not violate Amendment 14 of the Arkansas Constitution.

2. Article 5, Section 29

Next, McCutchen argues that Act 739 of 1995 violates Article 5, section 29, of the Arkansas Constitution, which declares that:

No money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents; and no appropriations shall be for a longer period than two years.

McCutchen maintains that Act 739 of 1995 violates this constitutional provision because it does not contain a distinct statement of its purpose.

In Arkansas Game & Fish Comm’n v. Page, 192 Ark. 732, 94 S.W.2d 107 (1936), this court reviewed Act 194 of 1935 which appropriated funds from the Arkansas Game and Fish Commission to the State Park Commission for the development of state parks. The lower court held that Act 194 was unconstitutional because it only stated the reason why the act was created instead of explaining how the funds would be used to develop parks within this State. Id. (Emphasis added.)

On appeal, the Park Commission explained that the funds would be used to acquire additional land for fish and game refuges at all state parks, and to aid in the completion of the Lonoke Fish Hatchery. Id. This court found that the Commission’s explanation was:

a pledge for the proper use of the money, but it also amounts to an admission or confession of a failure on the part of the attempted appropriation to state a specific purpose or general purpose of the appropriation.

Id. In other words, this court held that such an explanation needed to be contained in the act itself, and the failure to do so caused Act 194 to violate Article 5, section 29, of the Arkansas Constitution.

In contrast, in Hooker v. Parkin, 235 Ark. 218, 357 S.W.2d 534 (1962), this court upheld an act which appropriated roughly 83 million dollars to the Highway Commission for “maintenance, construction, repair ... of all roads ... in the State Highway System.” Thus, from Hooker and Page, it appears that Article 5, section 29 requires appropriation acts to declare “how” the appropriated funds will be used instead of merely explaining “why” the funds were appropriated.

In this case, Act 739 announces that the purpose of the appropriation is to:

assist local governments located in Pulaski County, Arkansas in defraying the cost associated with constructing and equipping a multi-purpose civic center.

1995 Ark. Act. 739, sec. 1(A). Thus, instead of merely saying that the appropriation will be used to increase tourism, recreation, and economic development, the Act “distinctly” states how it is going to accomplish these purposes: by defraying the cost of constructing and equipping a civic center in Pulaski County. Therefore, we agree with the trial court’s conclusion that Act 739 does not violate Article 5, section 29, of the Arkansas Constitution.

3. Article 12, Section 12 and Article 16, Section 2.

For his third argument on appeal, McCutchen asserts that the trial court erred in ruling that the appropriation made by Act 739 of 1995 is for a public purpose. In support of this argument, McCutchen merely quotes Article 16, section 2, of the Arkansas Constitution which requires the General Assembly to pay the debts of the state, and Article 12, section 12, which declares that:

Except as herein otherwise provided, the state shall never assume or pay the debt or liability of any county, town, city, or other corporation whatever, or any part thereof, unless such debt or liability shall have been created to repel invasion, suppress insurrection or to provide for the public welfare and defense.

McCutchen, however, fails to cite a single case as authority that Act 739 somehow violates either of these two constitutional provisions. Therefore, as we have explained in numerous opinions, we must affirm due to McCutchen’s failure to cite any convincing legal authority in support of this point on appeal. See, e.g., Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997); Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997).

4. Article 12, Section 5

Next, McCutchen claims that Act 739 of 1995 violates Article 12, section 5, of the Arkansas Constitution, which states that:

No county, city, town or other municipal corporation shall become a stockholder in any company, association or corporation; or obtain or appropriate money for, or loan its credit to, any corporation, association, or institution or individual.

As mentioned previously, pursuant to Act 739, the Department of Finance and Administration paid 11 million dollars to Pulaski County, which in turn tendered the funds to the Facility Board. Thus, McCutchen claims, Pulaski County made an unconstitutional appropriation to a “company, association or corporation.” This argument misconstrues the nature of the Facility Board.

Pursuant to the Public Facilities Boards Act, Pulaski County passed Ordinance 95-OR-64 thereby creating the Multi-purpose Civic Center Facility Board. The Pubhc Facilities Boards Act clarifies that counties may create public facilities boards to carry out various county activities including, but not limited to, the ownership and construction of “recreation and tourist facilities.” Ark. Code Ann. § 14-37-106 (Supp. 1995).

In City of Paris v. Street Improvement Dist. No. 12, 206 Ark. 926, 175 S.W.2d 199 (1943), this court'explained that city improvement districts were not “companies, associations, or corporations” as contemplated by Article 12, section 5, but instead were the “municipality acting through an agency of its own creation.” Likewise, facilities boards are not the type of company, association, or corporation contemplated by Article 12, section 5. Rather, facilities boards are agencies created by the counties to carry out various county activities. Therefore, we also affirm the chancellor’s ruling on this point.

5. Article 12, Section 7

Finally, McCutchen argues that Act 739 of 1995 violates Article 12, section 7, of the Arkansas Constitution, which provides that:

Except as herein provided, the State shall never become a stockholder in, or subscribe to, or be interested in, the stock of any corporation or association.

Because Act 739 of 1995 appropriates 20 million dollars to the Facilities Board, McCutchen asserts that the State has become a stockholder or an interested party in the Facility Board.

As admitted in McCutchen’s reply brief, the state will never have any legal title to or interest in the civic center, nor will it have control over the Facility Board. Furthermore, the board is not issuing stock or any other type of ownership interest to the state in exchange for the 20 million dollar appropriation. Therefore, we also affirm the trial court’s ruling on this constitutional challenge.

6. Attorney’s Fees

Because we find that Act 739 is constitutional, the issue of whether McCutchen is entitled to attorney’s fees is moot.

Affirmed.

       On September 17, 1996, the chancery court dismissed the separate defendant Pulaski County. .


author: Ray Thornton, Justice.

text:
    Roger T. BENSON v. TEMPLE INLAND FOREST PRODUCTS CORPORATION
    96-1369
    942 S.W.2d 252
    Supreme Court of Arkansas
    Opinion delivered April 21, 1997

      Taylor, Halliburton, Ledbetter & Caldwell, by: Mark Ledbetter; and Thomas G. Montgomery, for appellant/cross-appellee.

      Rieves & Mayton, by: David S. Wilson, III, for appellee/crossappellant.
   Ray Thornton, Justice.

In the early morning of June 24, 1992, appellant, Roger Benson, was injured while helping unload his coworker’s truck. When he released a rubber strap securing a tarpaulin that protected the load from the weather, a gypsum board weighing about forty pounds fell from the truck and struck him on the neck. Mr. Benson sued Temple Inland Forest Products, claiming that Temple’s negligence in loading the truck caused his injuries. Temple denied negligence, and contended that the injuries were caused by Mr. Benson’s own negligence, or the negligence of his coworker, Ed Felks.

Following the presentation of evidence, the trial judge instructed the jury concerning the meaning of the term “proximate cause,” but declined to instruct the jury on the concept of intervening cause or on the concept of concurring cause. The jury returned a general verdict in favor of Temple. Mr. Benson’s motion for a new trial was denied, and he appeals, alleging error in denying an instruction on concurring cause. Temple cross-appeals on the condition that if this court decides that an instruction on concurring cause was required, the trial court should also have given an instruction on intervening cause. We conclude that both instructions should have been given, and we reverse and remand the case for a new trial.

On June 23, 1992, Mr. Benson and Mr. Felks, employees of a trucking company, met at Temple’s facility in West Memphis to pick up their trucks, which had been loaded with gypsum wall boards. The open-flatbed trailers were eight feet wide, and the four-feet-by-eight-feet wall boards were stacked flat on the trailers. Each load was covered with a tarpaulin to prevent weather damage to the wall boards. However, a small tarp was used on Mr. Felks’s trailer, leaving some of the cargo unprotected from weather. To avoid weather damage, Temple placed a four-by-eight gypsum board on its side on the edge of the trailer to protect the exposed load from the weather; and this extra board was held in place by the tarp, which also covered most of the extra board. The tarp was secured to the trailer by rubber cords, and the load straps were then used to secure the entire load.

Temple asserted that when the trader was moved out of the loading bay, all these tarp cords were attached to the rub rail on the side of the flatbed trailer. Before starting their trip from West Memphis to Georgia, Mr. Benson and Mr. Felks were to inspect their respective loads, tightening the cargo straps and adding additional rubber cords if necessary to further secure the tarps.

Upon arrival in Georgia at the point of delivery, the drivers prepared for unloading by removing the load straps. After a short nap they were awakened by the person in charge of the facility. Mr. Benson began to help with the removal of the tarp from Mr. Felks’s truck, and he had to reach under the flatbed of the truck to disconnect a rubber cord. The four-by-eight extra gypsum board fell and injured Mr. Benson’s neck.

At trial, Temple introduced evidence that the rubber cords they had fastened to the tarp were attached to the rub rail on the side of the flatbed and that it was not necessary to reach under the trailer to disconnect those cords. This evidence suggested that Mr. Felks or someone else must have placed the cord ends under the trailer bed, making it necessary for the person removing the tarp to place his head and shoulders in an exposed position. Temple also suggested that Mr. Felks, who had been injured on a previous occasion when a similar board fell on his foot, had a duty to warn Mr. Benson that there was a protective board under the tarp which might fall when the tarp was released.

It is clear to us that these factual circumstances raise questions whether there were concurring acts of negligence, or whether there were intervening and superseding acts of negligence. The trial court should have given the jury such instruction as provided by AMI Civ. 3d 502 and 503. AMI Civ. 3d 502 accurately states the law relating to concurring negligence as follows:

When the negligent acts or omissions of two or more persons work together as proximate causes of damage to another, each of those persons may be found to be liable. This is true regardless of the relative degree of fault between them. If you find that negligence of the defendant proximately caused damage to the plaintiff, it is not a defense that some other person may also have been to blame.

AMI Civ. 3d 503, which correctly presents the law regarding intervening or superseding acts of negligence, provides as follows:

_ contends and has the burden of proving that following any act or omission on his part an event intervened which in itself caused damage completely independent of his conduct. If you so find, then his act or omission was not a proximate cause of any damage resulting from the intervening event.

Under our prior decisions, we determined that it is reversible error for a trial judge to refuse to give a requested specific instruction, even if his general instruction may touch on the issue, and stated the following:

Even if the court’s general instructions could be said technically to have covered the matter in a general way, it is error to refuse to give a specific instruction correctly and clearly applying the law to the facts of the case, even though the law in a general way is covered by the charge given, unless it appears that prejudice has not resulted.

Beevers v. Miller, 242 Ark. 541, 547, 414 S.W.2d 603, 607 (1967). Our opinion in Beevers reflects our long-held proposition that parties are entitled to specific jury instructions on causation issues:

[S]till the defendants were entitled to a specific instruction, telling the jury that if the injury occurred from some cause other than that alleged in the complaint, or that if the deceased was guilty of negligence in the particular mentioned which contributed to the injury, there could be no recovery.

Id. at 549, 414 S.W.2d at 608 (quoting Prescott & N. W. Ry. Co. v. Weld, 80 Ark. 454, 97 S.W. 452 (1906)).

While a trial court is not required to give every correct instruction offered when the instructions given explicitly, clearly, fully, and fairly cover the matter requested, the trial court’s refusal of a proper instruction will result in reversal, unless it affirmatively appears that no prejudice resulted. Id.

The circumstances of this case presented a jury question whether Temple’s negligence, if any, was a proximate cause of Mr. Benson’s injury. However, they also presented a jury question as to whether Mr. Felks’s or Mr. Benson’s actions were a concurring, intervening, or superseding act to cause the injury. In order to provide the jury with a clear understanding of the governing legal principles, all three instructions should have been given to the jury. We cannot determine that the failure to give these requested instructions did not result in prejudice.

Accordingly, we reverse and remand for a new trial based on this opinion.