author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Dollie & Duane COURTEAU, Guardians of the Estate and Person of Timothy Courteau v. Doyne DODD, M.D.
    89-105
    773 S.W.2d 436
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989
    [Rehearing denied September 11, 1989.]

      Perroni, Rauls & Looney, P.A., by: Samuel A. Perroni and Stanley D. Rauls, for appellants.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellee.

      Purtle, J., would grant rehearing.

   David Newbern, Justice.

This is a medical malpractice case decided by summary judgment in favor of defendant, Doyne Dodd, M.D., the appellee. The action was brought by the appellants, Dollie and Duane Courteau, on behalf of their son and ward, Timothy Courteau. Timothy, at age twenty, suffered a broken neck in a diving accident. While he was a patient at North Little Rock Memorial Hospital, a breathing tube which had been placed through his nostril into his trachea became dislodged. Breathing was severely hampered, blood gases elevated, and he suffered a heart attack and massive brain damage. Suit was brought on his behalf by the appellants, who are Timothy’s parents and guardians, against three physicians and an insurance company. The allegation against Dr. Dodd, a radiologist, was that he failed to take immediate action to notify others involved in treating Timothy that an X-ray showed the tube was not present where it should have been. The trial court entered a final judgment as to Dr. Dodd, finding no reason to delay. Ark. R. Civ. P. 54(b). The Courteaus argue the remaining fact issue is whether the doctor used the proper means of communication. They assert it is a question a juror could answer absent expert testimony. We agree, however, with the court’s conclusion that, absent the prospect of expect medical testimony showing Dr. Dodd to have been negligent, there was no remaining fact issue, and summary judgment was appropriate.

Facts revealed in the pleadings and affidavits supporting and responding to the summary judgment motion are not disputed. Timothy Courteau was admitted to the hospital on July 3, 1986. Following surgery necessitated by his spinal injury he was placed on a.respirator, and the tube was put in place to keep an air passageway open to his lung. The nursing notes beginning on the night of July 5, 1986, showed the patient was agitated and was fighting the ventilator and shaking his head from side to side.

A nurse checked between 6:00 and 7:30 a.m. on the morning of July 6 and found there was a whistling sound around the tube and the patient was unresponsive. At about that same time, a respiratory therapist reported the blood gases were at readings of around 90, and they should have been around 30. The therapist caused a call to be made to Dr. Marvin, the treating physician, who then ordered that the tube be repositioned. Dr. Duke tried unsuccessfully to get the tube back into the lung, using both the nostril and the mouth, but instead the tube went into the esophagus and stomach. Timothy’s inability to breathe resulted in the brain damage and a heart attack which occurred at 8:59 a.m.

Requisitions had been made for daily chest X-rays. The requisition dated July 3 for a July 4 X-ray made no reference to the tube. Dr. McAdoo, who read the July 4 film, stated in his notes “[t]here is an endotracheal tube in place.” The requisition dated July 4 for the July 5 X-ray again made no mention of the tube, and Dr. McAdoo’s notes did not mention the tube. The requisition dated July 5 for the July 6 X-ray had two notations: “CHEST-PORTABLE RECUMBENT” and “INTUBATION.”

Dr. Dodd’s affidavit accompanying the motion for summary judgment stated that he read the film between 7:30 and 8:30 the morning of July 6. The Courteaus point out that in his earlier deposition Dr. Dodd said he read the film between 7:15 and 8:30. The X-ray had been taken at 6:35 that morning. He noted the absence of the tube, stating, “the endotracheal tube is not visualized and may have been removed.” His dictated notes were transcribed and printed at 10:37 that morning. He took no other action to notify anyone of the finding that the tube was not in place. In his affidavit Dr. Dodd described the X-ray requisition as “routine” with nothing to suggest urgency with respect to his report. He also noted there was nothing unusual about the disappearance of a tube or other appliance which may be removed as a patient’s condition improves.

Also accompanying the motion for summary judgment were affidavits of two board certified radiologists, each of whom stated he was familiar with the standard of care for radiologists practicing in the Little Rock and North Little Rock community in 1986. Each stated that he had reviewed the undisputed facts and concluded that Dr. Dodd promptly read the X-ray in question and interpreted it in a manner consistent with the standard of care for a radiologist in the community in 1986. Each stated:

It is my professional medical opinion that Dr. Dodd did not negligently fail to bring his endotracheal tube finding regarding Tim Courteau’s July 6, 1986, morning chest x-ray to the attention of the treating physician, the intensive care unit, the emergency room, or hospital administration, as alleged in . . . plaintiffs’ . . . Complaint. Dr. Dodd dictated a report which indicated that “the endotracheal tube is not visualized and may have been removed.” No request for a STAT reading was communicated to Dr. Dodd. It was within the standard of care for a radiologist who read a routine chest x-ray on a patient who had been intubated in the intensive care unit for several days to dictate his findings that no tube appeared in the x-ray. This is true even though the requisition indicated that the patient was intubated, because the computer-generated requisitions often indicated the presence of tubes or appliances which had been removed as the patient’s condition improved.

In response to the motion for summary judgment, the Courteaus presented, among other things, excerpts from a number of depositions concerning the direct care which was being given in or about the patient’s hospital room. The only items, other than the X-ray films, directly related to Dr. Dodd were an excerpt from a deposition given by an internist, Dr. Frank Logan Brown, Jr., and an affidavit from a respiratory therapist, John Govar.

Dr. Brown expressed no opinion about the standard of care and whether Dr. Dodd’s actions were within the standard. He stated he did not understand why Dr. Dodd had not called the intensive care unit where the patient was hospitalized when he noticed the tube was not present, given the “intubation” notation on the requisition.

Mr. Govar’s affidavit stated that he was a certified respiratory therapist with twelve years experience, currently serving as Director of Respiratory Care at Hillside Hospital in Pulaski, Tennessee. The affidavit contained nothing about Mr. Govar’s education or training for his position. There was nothing showing the size or nature of the community in which he was working or any community in which he had worked. There was nothing to show any knowledge of radiology or X-ray reading and reporting procedures. He stated that in his experience “a chest x-ray requisition reflecting the word ‘intubation’ means that a chest x-ray is being requested for the purpose of determining tube placement.” He stated his opinion that the absence of the tube shown in the July 6 film should have been reported immediately.

After finding that a genuine issue of material fact remained as to the question of causation, the trial court’s order stated:

However, it is the Court’s opinion that in this case the Plaintiffs would have to have expert medical testimony and opinion that Dr. Dodd acted below the standard of care for radiologists in 1986 in North Little Rock, Arkansas, or a similar community, and that Plaintiffs have not listed a medical physician who would so testify, and, therefore, there is not a genuine issue of material fact concerning Dr. Dodd’s alleged negligence.

In Prather v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987), we reversed a summary judgment because we found ample medical expert testimony to raise a question of fact as to a physician’s negligence. We stated the standard rule for review of a summary judgment. The burden is on the moving party to demonstrate that there is no genuine issue of fact for trial. We view the evidence most favorably to the party against whom relief is sought. Citing Clemons v. First National Bank, 286 Ark. 290, 692 S.W.2d 222 (1985), we said summary judgment is not proper where the evidence is not in dispute but has aspects from which inconsistent hypotheses might reasonably be drawn.

The malpractice statute, Ark. Code Ann. § 16-114-206(A) (1987), provides:

In any action for medical injury, the plaintiff shall have the burden of proving:
(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality;
(2) That the medical care provider failed to act in accordance with that standard; and
(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

The question here is whether, once Dr. Dodd presented medical expert opinion testimony to the effect that he was not negligent, the Courteaus presented sufficient evidence to pose a question of fact on that issue. Further refined, the question becomes whether the affidavit of Mr. Govar expressing his opinion that Dr. Dodd was negligent was sufficient to rebut Dr. Dodd’s evidence and thus raise a fact question.

To the extent the trial court’s judgment could be interpreted as stating that the Courteaus were required to find a radiologist to testify against Dr. Dodd and to rebut the affidavits of his fellow radiologists, we disagree. Arkansas Code Ann. § 16-114-207(1) (1987) provides that A.R.E. 702 governs the qualifications of expert witnesses in an action for medical injury. Rule 702 is not so strict. We have held that if there is a reasonable basis for saying a witness knows more of the subject at hand than a person of ordinary knowledge, his evidence is admissible. Dildine v. Clark Equip. Co., 282 Ark. 130, 666 S.W.2d 692 (1984). By way of obiter dictum in Haney v. DeSandre, 286 Ark. 258, 692 S.W.2d 214 (1985), we stated that:

the statute does not expressly state that every plaintiff in a malpractice case must find a doctor willing to testify against a fellow doctor. Such a requirement might subject the validity of the statute to serious doubt, as being special or class legislation. ^

Reserving the question whether educational background is a necessary component of the qualifications of a person presented as a medical expert, Mr. Govar’s affidavit makes it pretty clear that he is a person who may have more knowledge than the ordinary person would have about respiratory therapy. It states:

[t]he respiratory therapy issues in this case relating to the proper and standard care to be provided to an intubated patient in the Intensive Care Unit are common to any hospital operating such a unit. The issues involve the basic components of airway management of an intubated patient in the Intensive Care Unit.

It then states that “intubation” noted on a requisition means a chest X-ray is being requested to determine tube placement, and that the findings from the 6:35 a.m. film were of major significance to the patient’s care and should have been immediately reported. Had the issue in this case been one of the standard of care to be exercised in administering respiratory therapy, and had Mr. Govar been able to qualify as an expert in that field, his testimony might have been sufficient to present a fact question. The subject at hand here, however, was the standard of care a radiologist must follow in interpreting an X-ray requisition.

The question we face is whether Mr. Govar was qualified to express an opinion about how Dr. Dodd should have reacted to the July 6 X-ray, given the instructions in the July 5 requisition. The affidavit offers nothing to sustain the Courteaus’ burden of proof which, in the words of § 16-114-206(A)(1), includes “[t]he degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider . . . engaged in the same type of . . . specialty in the locality . . . or . . . similar locality.” Mr. Govar’s affidavit contained nothing about his having knowledge as to how a radiologist in a community like North Little Rock should have interpreted the July 5 requisition. His statement that the “respiratory care issues” are common to any hospital operating an intensive care unit states no basis for his evaluation of the conduct of a radiologist.

The Corteaus cite Phillips v. Good Samaritan Hosp., 65 Ohio App.2d 112, 416 N.E.2d 646 (1979). There a radiologist determined that the patient had a broken arm, although the physician who had examined her had concluded there was no break. The radiologist dictated his findings into a machine, but they were not communicated to the treating physicians. The Courteaus urge upon us the language from that case to the effect that the “mode” of communication is an area in which an ordinary juror could ascertain whether the radiologist breached a duty to the patient. We find, however, that the court carefully and clearly distinguished the “urgency” of the communication which the court concluded depended on medical facts as to which expert testimony would be required.

The Courteaus also cite Jenoff v. Gleason, 215 N.J. Super. 349, 521 A.2d 1323 (App. Div. 1987), where the mode of communication by a radiologist resulted in delay in informing a patient and her physician about a lung tumor until it had grown and spread. The information was not placed in the hands of Ms. Jenoffs doctors but was attached to her hospital records after she had been discharged. It was only discovered by a nurse who was reviewing her record on behalf of a workers’ compensation carrier some months later. The trial court dismissed the claim against the radiologist at the conclusion of the plaintiffs evidence. A physician testified that an unusual finding by a radiologist would be communicated to the treating physician and where, as in the case of Ms. Jenoff the X-ray was being taken to assess her general suitability for surgery, to the surgeon. The appellate court reversed on the ground that the evidence was sufficient to take the case to the jury. By way of obiter dictum, the court noted that “modes of communication are not so peculiarly within the expertise and knowledge of the medical profession as to necessitate expert testimony.”

The Jenoff case is easily distinguishable from the one before us now. We agree that the discovery of a lung tumor by a radiologist is clearly an item to be communicated to a treating physician and patient, and a layperson could determine that failure to communicate in those circumstances could be characterized as negligence. In this case, however, there was no failure to communicate. Unlike the Jenoff case, the jurors here would have had the task of interpreting the term “intubation” and determining the action, if any, it required under the community standard made applicable by the statute.

In Prater v. St. Paul Ins. Co., supra, we wrote:

Expert testimony is required when the asserted negligence does not lie within the jury’s comprehension; when the applicable standard of care is not just a matter of common knowledge; and when the jury must have the assistance of expert witnesses to decide the issue of negligence. Sexton v. St. Paul Fire & Marine Insurance Co., 275 Ark. 361, 631 S.W.2d 270 (1982); David v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972).

Again, the question presented has to do with the urgency, if any, suggested by the X-ray requisition and the resulting film, and we cannot say the trial court was wrong in requiring expert testimony on that issue and in holding that Mr. Govar’s affidavit was insufficient and the “question” raised in the deposition testimony of a physician presented no genuine issue of material fact.

Affirmed.

Holt, C.J., Purtle and Glaze, JJ., dissenting.

John I. Purtle, Justice,

dissenting. We should abandon the archaic rule that dictates that before an injured person may proceed against a physician, he must have another physician who is willing to testify that the treating physician did not use the degree of care required. One of the basic instructions given to the jury is: “In considering the evidence in this case you are not required to set aside your common knowledge, but you have a right to consider all evidence in the light of your own observations and experiences in the affairs of life.” AMI Civil 3rd 102. If a jury is urged not to set aside its common knowledge, then certainly the admonition should apply with equal force to the courts. Our court-made rule requiring a physician to testify against another in support of a plaintiff’s claim is, at the very least, obsolete. In view of the existence of special legislation protecting doctors from certain risks, we ought to subject physicians to all other normal risks encountered by other professions.

The majority opinion is well-written and contains all the facts necessary to understand this case. My disagreement is not so much with the majority as it is with the practice which has grown up protecting the medical profession from liability for negligence. For example, in the present case two board-certified radiologists testified, relative to the motion for summary judgment, that the appellee, also a board-certified radiologist, did things in conformity with the standards prevailing in the community where the hospital is located. It would surprise me if all other board-certified radiologists in the city would not make the same statement. However, the ultimate decision in this case should not be left to a radiologist.

Timothy Courteau was in grave condition when he was placed in the intensive care unit at Memorial Hospital on July 3, 1986. It was deemed necessary to insert a tube into his lungs, through the trachea, to enable him to receive sufficient oxygen. He was then placed on a ventilator to assist him in breathing. One of the routine orders was that Tim would have a daily X-ray in the morning for the purpose, among other things, of determining whether the tube was in place. When the tube is properly inserted, the condition is referred to as “intubation.” When the tube is not in place the condition is called “extubation.”

The X-rays were read each morning between 7:30 a.m. and 8:00 a.m. Until July 6, 1986, the early morning X-rays clearly revealed that Tim had the breathing tube in place. The requisitions for the July 6 early morning X-ray required a reading for intubation. The early morning X-ray of July 6,1986, was read by Dr. Dodd between 7:15 a.m. and 8:30 a.m. The remarkable thing about this X-ray is that it is obvious, even from the photo copy in appellant’s briefs, that the tube is missing from his throat. Dr. Dodd’s report alluded to the missing tube by stating that it “may have been removed.” One of Dr. Dodd’s partners, Dr. Dalrymple, stated that ICU X-rays at the North Little Rock Memorial Hospital were to be given priority reading and were not to be handled as “routine” X-rays. However, the reading of this X-ray by Dr. Dodd at about 8:00 a.m. was not received at Tim’s station until 10:37 a.m. In the meantime, Tim had suffered a cardiac arrest.

It seems to me that it does not take the testimony of another radiologist to explain that the breathing tube had been dislodged from the patient’s thoratic area prior to the taking of the X-ray on July 6, 1986. Compared with the X-rays of July 4 and 5, it is obvious to the normal eye that the tube is not in place. Knowing that the tube was not in place, the doctor nevertheless handled the situation as a matter of routine. While this routine was taking its course, Timothy Courteau was in a life-threatening situation and indeed almost died. He deserved more than routine care under these circumstances.

Even before the report of the X-rays came back to the patient’s chart, the duty nurses had discovered he was extubated. In the attempt to replace the tube it was inserted through the esophagus into the stomach. Certainly this series of mishaps was not planned by the institution or any of its employees. I doubt that any employee or staff member of the hospital, from attending physician to janitor, would have failed to recognize that something needed to be done when it was discovered that the tube was not in place. The requisition for the X-ray stated that one purpose was to determine whether the patient was intubated. It does not take expert medical testimony to recognize that this fact should be immediately called to the attention of those entrusted with preserving the life of the patient. This was not done. Rather, this most significant and alarming fact was not called to the attention of anyone except through routine channels.

It is quite clear to me that the evidence in this case reveals certain aspects from which inconsistent hypotheses might reasonably be drawn. In other words, reasonable men might differ on the interpretation of the evidence. In the case of Prater v. St. Paul Fire and Marine Insurance Co., 293 Ark. 547, 739 S.W.2d 676 (1987), this court stated:

Expert testimony is required when the asserted negligence does not lie within the jury’s comprehension; when the applicable standard of care is not a matter of common knowledge; and when the jury must have the assistance of expert witnesses to decide the issue of negligence.

The jury did not need the testimony of an expert witness to interpret the facts in this case. The question boils down to whether Dr. Dodd was negligent in failing to communicate the extubated condition of Timothy Courteau. Aside from the fact that it is most difficult to find a physician who is willing to testify against another physician, it is clear from the facts in this case that the jury could have made a determination on the question of the appellee’s negligence. See Haney v. DeSandre, 286 Ark. 258, 692 S.W.2d 214 (1985).

Even though we may not have decided this precise factual question before, we have decided the same issue many times. I have cited two cases and will point to several others from other jurisdictions. The finding of a radiologist concerning X-rays has been held not to be a matter so peculiarily within the expertise and knowledge of the medical profession as to require expert testimony. Phillips v. Good Samaritan Hospital, 416 N.E.2d 646 (Ohio App. 1919); Jenoff v. Gleason, 521 A.2d 1323 (NJ. Super. A.D. 1987); Thomas v. Corso, 288 A.2d 379 (Md. 1972); Baldwin v. Knight, 569 S.W.2d 450 (Tenn. 1978); Wilkinson v. Vesey, 295 A. 2d 676 (R.I. 1972); Steele v. Woods, 327 S.W.2d 187 (Mo. 1959); and Prater v. St. Paul, supra. When a patient is in peril of his life, it does him very little good if the examining doctor has discovered his condition unless the physician takes measures and informs the patient, or those responsible for his care, of that fact.

The director of respiratory therapy at the hospital testified that the procedures involved in this case are common to any hospital furnishing such services. The director had twelve years’ experience in respiratory therapy. He was familiar with the X-ray procedures normally employed to determine the proper placement of breathing tubes. He stated that the purpose of a requisition requesting an X-ray to be read for intubation was to see whether the breathing tube was still in place. It was obvious to him from'observing the X-ray of July 6 that the tube was not in place.

An attending physician who found Timothy in a lifethreatenting situation obviously recognized the need for immediate attention and attempted to replace the respiratory tube. However, she mistakenly inserted the tube in his esophagus, thereby aggravating the patient’s already precarious situation.

The holding in Phillips v. Good Samaritan Hospital, supra, was that:

Modes of communication. . . are not so peculiarily within the expertise and knowledge of the medical profession so as to necessitate expert testimony. The manner of communication, unlike urgency and content that depend upon medical facts, is not so complex and technical that is should escape the comprehension of a layman jury. In so holding, we merely apply the general principle that a party need not “submit expert testimony in order to have the case submitted to the jury, where [a] violation of the defendant’s duty to the patient is otherwise made to appear.” (Citation omitted.) Once the need for a communication, and the necessary information that it should contain, have been established, the trier of fact should be able to pass on the issue of adequacy of the communication bearing in mind the facts available to the parties at the time the communication was made.

It seems to me that common knowledge is all that is needed to determine that the X-rays of July 6, taken at 6:35 and read by Dr. Dodd about an hour later, clearly demanded that the extubation required immediate attention rather than the normal routine. Had the X-rays been read in the ICU unit when Dr. Duke or Dr. Bates arrived, the cardiac arrest most likely would not have occurred. Dr. Bates stated that the available evidence indicated that Timothy Courteau was in a life-threatening situation at 7:15 a.m., about an hour after the X-ray had been taken.

If we must continue to employ the archaic rule requiring one physician to testify against another, it seems to me that Dr. Bates’ testimony is factual enough to demand that the matter be submitted to a jury for determination. Common sense requires that a jury be allowed to decide the issue of negligence and proximate cause in medical malpractice cases as well as in all other cases.

Holt, C.J., joins in this dissent.


source: Caselaw Access Project

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

license: Public Domain

text:
    Mac TAYLOR v. STATE of Arkansas
    CR 89-74
    773 S.W.2d 431
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      Mark W. Corley, for appellant.

      Steve Clark, Att’y Gen., by: David B. Eberhard, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Mac Taylor, the appellant, was convicted of driving a truck in violation of the statute governing vehicle weight. He contends he was prosecuted for violation of having an overweight set of tandem axles but that the state failed to prove his axles were in tandem because there was no proof of the distance between the axles. The trial court denied Taylor’s directed verdict motion after noting at least one axle was overweight whether it was considered part of a tandem or not. We affirm because the trial court was right in refusing to direct a verdict in Taylor’s favor.

The information pursuant to which Taylor was prosecuted charged him with the crime of “Violation of Single & Tand[e]m Axle Loa[d] Limit - Unclassified Misdemeanor 27-35-203(b) (75-817(b)). . . .” The number 27-35-203(b) refers to that section of the Arkansas Code of 1987 Annotated (Supp. 1987). The number appearing in parentheses, 75-817(b), refers to the predecessor statute in Arkansas Statutes Annotated.

Section 27-35-203(b)(l) provides:

The total gross load imposed on the highway by two (2) consecutive axles in tandem articulated from a common attachment or individually attached to the vehicle, and spaced not less than forty inches (40”) nor more than ninety-six inches (96”) apart, shall not exceed thirty-four thousand pounds (34,000 lbs.).

Section 27-3 5-203 (b)(2) provides that “[n]o one (1) axle of any such group of two (2) consecutive axles shall exceed the load permitted for a single axle.”

Two police officers who were at the scene of the alleged violation testified that trailer axles were tandem axles and they were overweight. At the conclusion of the evidence, counsel for Mr. Taylor moved for a directed verdict on the ground that there had been no proof that the axles were within the distances stated in § 27-35-203(b)(1). The judge noted that subsection (b)(2) required that “no one axle of any such group of two consecutive axles shall exceed the load permitted for a single axle.”

The evidence showed there were two tandem or consecutive axles on Taylor’s rig which, together, weighed 41,500 pounds. There is no way to divide that figure without concluding that one axle was in excess of 20,000 pounds, which is the maximum for a single axle as provided in Ark. Code Ann. § 27-35-203(a). It was not necessary to charge the defendant under § 27-35-203(a) to find him guilty of having a single axle over 20,000 pounds, however, as that is the offense chargeable, and in this case charged, under subsection (b) which includes subsection (b)(2).

Affirmed.

Hickman, J., concurring.

Purtle and Glaze, JJ., dissenting.

Tom Glaze, Justice,

dissenting. The majority opinion should add a caveat: “Look out, brother trucker — due process, when driving on Arkansas highways, has been eliminated and it may prove unusually hazardous to your pocketbook!”

In reading the majority decision, one might muse on what occurred in this matter and conclude that this is a “nothing case.” Not so. First, this case is the first to involve the interpretation of Arkansas’s load limit or “overweight” laws for trucks. Second, the majority court’s interpretation of these laws permits the state to cite or charge a trucker for one weight violation under the law and, without notice or an opportunity to defend against it, to convict him of another. The facts, I believe, speak for themselves.

I. CITATION OR CHARGE — VIOLATION OF ARK. STAT. ANN. § 75-817(g) (SUPP. 1985) [NOW ARK. CODE ANN. § 27-35-203(g) (Supp. 1987)].

The following overload citation was given the defendant trucker on May 21, 1987:

In sum, the citation notified that the defendant trucker’s vehicle — a logging truck — weighed 51,700 pounds and the legal limit was 46,000 pounds. Section 75-817(g), the law under which the trucker was first charged, concerned vehicles with five axles hauling, among other things, forest products; this law allows an eight percent (8 %) variance above the applicable gross weight limit set out by law for such vehicles.

II. PRELIMINARY HEARING

The information filed by the state against the trucker failed to mention § § 75-817 (g) or 27-35-203 (g), but instead accused the trucker of violating Ark. Stat. Ann. § 75-817(b), now Ark. Code Ann. § 27-35-203(b). Actually, subsection (b) contains two sections which read as follows:

(b) MAXIMUM TANDEM-AXLE LOAD. (1) The total gross load imposed on the highway by two (2) consecutive axles in tandem articulated from a common attachment or individually attached to the vehicle, and spaced not less than forty inches (40”) nor more than ninety-six inches (96”) apart, shall not exceed thirty-four thousand pounds (34,000 lbs.).
(2) No one (1) axle of any such group of two (2) consecutive axles shall exceed the load permitted for a single axle.

Because of the switch in the charges against the trucker, the trial court, the state, and the defendant’s counsel, Mr. Corley, were confused as to which charge was in issue. At a preliminary hearing, Corley contended, the defendant was not guilty of violating subsection 203(g) because his truck did not have the five axles required under that provision. The state then stated it wished to amend its information to show the defendant violated § 27-35-203, thus omitting reference to any subsection. Corley responded, pointing out that the law cited by the state set out various different violations by subsections and each violation contained different elements of proof. In his remarks, Corley identified three different statutory provisions (subsections) under which the state could bring charges and which required different elements of proof, viz., (1) subsection 203(g) (requires five axles and allows a variance in weight); (2) subsection 203(b)(1) (requires two consecutive axles in tandem spaced not less than forty inches nor more than ninety-six inches apart); and (3) subsection 203(b)(2) (requires that no one (1) axle of two (2) consecutive axles shall exceed the 20,000 pounds specifically set out in subsection 203(a)). This third statutory violation, contained in 203(a) and (b)(2), allows a violator, under subsection 203(h), the option to shift or to unload a portion of the existing overload if the total weight of all axles, including the steering axle, does not exceed the total maximum weight allowed by law — in this case 52,000 pounds.

At the end of the pretrial hearing, the trial judge instructed the state to amend its information. At trial time, the state’s amended information reflects the state charged the defendant with subsection 203(b). The information never mentioned the original charge under subsection 203(g), nor did it specify which section, (1) or (2), which the defendant was alleged to have violated under subsection (b).

III. THE TRIAL

Immediately before trial, the defendant’s counsel again complained that the state had failed to specify which law the defendant violated; accordingly, counsel requested the state’s amended information be dismissed. After discussion between the court and the state’s attorney, an understanding was reached between the two that the state would show the defendant’s vehicle exceeded the weight limit required for tandem axles, which is provided under subsection 203(b)(1). The state’s attorney explained that his proof would show defendant’s vehicle weighed 51,700 pounds when he was limited to 34,000 pounds on his tandem axles and 12,000 pounds for his vehicle’s front or steering axle — which totals 46,000 pounds. Of course, this 46,000 pound limit required under subsection 203(b)(1) seems to match up what the arresting officer originally cited the trucker, although the officer specified subsection 203(g). Nonetheless, the state’s case at trial dealt entirely with showing how the defendant’s vehicle violated the weight limits under subsection 203(b)(1). The state, however, failed to make its case because it did not prove the defendant’s truck’s axles were spaced not less than the forty inches nor more than the ninety-six inches apart required under subsection 203(b)(1). The state concedes no such proof was offered. Defendant’s counsel moved for directed verdict, which the trial court denied. In denying counsel’s motion, the trial court, without mentioning subsection 203(b)(2), made reference to that subsection’s statutory requirements and language and asked defendant’s counsel, Corley, if the state proved its case under that provision. Corley opined the state had not, at which point, the court curiously responded by saying, “They testified that the tandem axle was overloaded” — a clear reference to the subsection 203(b)(1) provision, not the subsection 203(b)(2) provision it had just mentioned.

Regardless of whether the trial court actually knew which law it found violated by the defendant, it is clear that the only reference to the subsection 203(b)(2) provision was made by the trial court after both the state and the defendant rested.

IV. THIS APPEAL

In this appeal, the state makes no attempt to justify or sustain its case by arguing its evidence was sufficient to prove the defendant violated the statutory terms in subsection 203(b)(2)'. I commend the state for its straightforwardness in this respect since the state had never even hinted it was trying defendant for having violated that statutory provision. The state, instead, argues that its failure below to show the space measurement requirement under subsection 203(b)(1) was not fatal because the requirement was merely directive. The argument is meritless, which the majority recognizes by its having wholly ignored the argument when writing the majority opinion.

After ignoring the trust of the state’s entire case and argument, the majority court, in its zeal to affirm the trial court’s decision, states that it was unnecessary to charge the defendant under subsection 203(a) or subsection 203(b)(2) because the chargeable offense was includable under subsection 203(b) — the section mentioned in the state’s amended information. Such logic escapes me. Surely, the defendant is entitled to know the specific crime with which he is charged. Subsections 203(a), (b)(2), (b)(1) and (g) are separate offenses; they require different elements of proof and the defendant is entitled to raise different defenses, depending upon which violation is alleged. As alluded to earlier, the defendant should have been given the opportunity to shift or unload a portion of the existing load, if he had been charged with having violated the offense set out in subsections 203(a) and (b)(2) — the offense which the majority now convicts him of. See subsection 203(h). Certainly, the defendant could have availed himself of the 203(h) defense if he had been denied the option to rearrange or remove his cargo.

Of course, the officer who stopped and charged the defendant had no intention of charging him with having violated the 20,000 pound axle requirement specified under subsections 203(a) and (b)(2). As a consequence, I have no doubt the officer never offered the defendant the required opportunity to shift or remove some of his cargo so as to comply with those provisions. Instead, the officer charged defendant with having violated the tandem axle provision of subsection 203(b)(1), and the state simply failed to prove the elements under that provision. This court’s decision not only ignores the state’s failure to prove its case, it also ignores the defendant’s constitutional due process rights that allow him to be notified of the specific crime with which he is charged and the opportunity to defend against it.

If the majority opinion is an indication of how this court will interpret this state’s vehicle weight load statutes in the future, truckers had best plan to by-pass Arkansas and do most of their hauling in or through Missouri or Texas. I, of course, would reverse and dismiss the case.

Purtle, J., joins in this dissent.


author: Tom Glaze, Justice.

text:
    Emmett JOHNSON v. ARKLA, INC.
    89-110
    771 S.W.2d 782
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      Simmons S. Smith, for appellant.

      Wallace, Dover & Dixon, by: David A. Couch, for appellee.
   Tom Glaze, Justice.

This is a slip and fall in which the trial court granted appellee’s motion for a directed verdict. Appellant’s sole issue on appeal is that the evidence was sufficient for his case to be submitted to the jury. We disagree, and therefore affirm.

On November 15, 1985, around 9:30 a.m., the appellant went to the appellee’s place of business, the Arkla Gas Company office in Little Rock at 400 East Capitol, to pay his gas bill. After the appellant entered the office, he decided to look at some appliances on display in the lobby. While walking towards the appliances, the appellant fell and suffered an injury to his left ankle and his lower back. Contending that he slipped and fell on a small penlight or double A battery on the floor, the appellant filed suit against the appellee seeking over $150,000 in medical expenses and damages, which he alleged were a result of his injury. After the appellant presented his case at trial, the trial judge granted the appellee’s motion for directed verdict.

In addressing the issue of whether a directed verdict should have been granted, this court must view the evidence in the light most favorable to the party against whom the verdict is sought and give it the highest probative value, taking into account all reasonable inferences deducible from it. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). This court has held that where the evidence is such that fair minded people might have different conclusions, then a jury question is presented and the directed verdict should be reversed. Id.

The appellee owes the invitee the duty to use ordinary care to maintain the premises in a reasonably safe condition. AMI Civil 3rd, 1105. To prevail in a slip and fall case, the appellant must show that appellee violated this duty by proving either 1) that the presence of an object upon the floor was the result of the negligence on the part of the appellee or 2) that an object has been on the floor for such a length of time that the appellee’s employees knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Id.; see also Boykin, 294 Ark. 182, 741 S.W.2d 270; Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986). This court has stated that the mere fact that a patron slips and falls in a store does not give rise to an inference of negligence. Willmon, 289 Ark. 14, 708 S.W.2d 623. In the present case, the trial judge, in granting appellee’s motion for a directed verdict, found that the appellant failed to introduce evidence from which the jury could infer that the appellee violated either of the two elements set out in AMI 1105.

In the present case the origin of the battery, upon which appellant alleges he slipped, is unknown. In fact, one of the appellee’s employees testified that none of the appliances in the area used that type of battery. Thus, appellant clearly failed to show that the object’s or battery’s presence on the floor resulted from the appellee’s negligence. In this respect, the case here differs from Boykin, which is relied upon by appellant and which involved a substance — soapy water — that ran in from off the door of the defendant’s car wash business where the plaintiff fell.

Pointing to his complaint and the evidence he presented at trial, appellant argues and attempts to show on appeal that the appellee was negligent because the battery, causing his fall, had been on the floor for such a length of time that the appellee’s employees knew or reasonably should have known of its presence and failed to remove it. His proof failed to meet this required legal test. In reviewing the record, we find the following evidence: 1) a maintenance man and six other employees were in the lobby and three of these employees sat where they could see the appliance area; 2) all of the employees in the lobby were instructed to pick up debris off the floor and to periodically mill around the lobby to check on the customers and the floor; 3) the building had been opened, at most for two hours at the time of the accident; 4) a maintenance crew had mopped the floor the night before the accident. Viewing the evidence in a light most favorable to the appellant, as we must, the longest amount of time that the battery could have been on the floor was two hours — a fact the appellant conceded both in his brief and in oral argument.

The length of time the object is on the floor is a key factor in these cases. In fact, this court has stated that the burden is on the appellant to show that the interval between the time the foreign substance is on the floor and the time of the fall was substantial. Moore v. Willis, 244 Ark. 614, 426 S.W.2d 372 (1968). In Moore, this court held that evidence that water and dirt tracked in by customers had accumulated for two hours inside the doorway of a store was not sufficient evidence from which the jury might determine, without speculation or conjecture, that it should have been observed by appellee or his employees in time to give opportunity for its removal prior to the entry and fall of the invitee. Likewise, in Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986), we stated that evidence that water had been in the aisle of a supermarket for one hour and fifteen minutes was insufficient to show that any employee knew or reasonably should have known, of the spill. In so holding, we noted evidence, favoring the plaintiffs story, that indicated that an employee working at the supermarket’s checkout counter would have been within fifteen feet of the spill.

Here, we believe the trial court’s decision to direct a verdict in appellee’s behalf was consistent with our earlier cases. Under the circumstances described in this cause, the evidence was insufficient to justify any inference of negligence on the part of the appellee.

For the reasons stated above, we affirm.

       There is testimony disputing the existence of the battery on the floor before the fall, but upon review of appellant’s argument on appeal, we presume a battery was on the floor at the time of appellant’s fall.


text:
    Jimmy Lee OGLESBY, David Lee Ingram, Ambassador Books & Video v. STATE of Arkansas
    CR 89-57
    773 S.W.2d 443
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      John Wesley Hall, Jr. and Craig Lambert, for appellants.

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

This is an obscenity case. The appellants, Oglesby and Ingram, operated Ambassador Books & Video (Ambassador) on Asher Avenue in Little Rock. They were convicted of promoting obscene material and each recieved a prison sentence of four (4) years and a fine of $8,000. Their business also received a $20,000 fine. Oglesby and Ingram appeal from their convictions raising nine points of error.

We summarily dismiss the appellants’ four points of error that challenge the constitutionality of our obscenity laws. This court recently addressed and rejected these same arguments in Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155 (1987). We address the remaining five points of error in the order presented by the appellants. They argue that the trial court erred (1) in denying the appellants’ motion for mistrial because of the trial judge’s comment during the showing of a film; (2) in admitting evidence of semen found on the floor of a viewing booth in the store; (3) in allowing testimony concerning the detective’s observation of two men engaging in a sexual act in a viewing booth; (4) in ruling that the appellants’ motion to suppress was untimely; and (5) in sustaining the inventory search of Oglesby’s car and admitting into evidence $1,000 in quarters that were seized in that search. We find the appellants’ arguments in points one, two and three have merit, and therefore we reverse and remand.

Between the time of September 1987 and March 1988, Detective Carlos Corbin visited Ambassador numerous times as part of an undercover investigation designed to find possible violations of the Arkansas obscenity laws. During his investigation, the detective purchased from Ambassador a pornographic video tape entitled, “Deep Chill,” and a pornographic magazine, entitled, “All Tied Up.” While visiting this “adult” book and video store, Detective Corbin viewed portions of several pornographic movies in quarter-operated viewing booths, which were located near the back of the store. While in these booths, a viewer could use the channel selector and see parts of four or five different movies. As a viewer, Detective Corbin saw portions of a movie entitled, “Sticky Business.” This movie was seized along with documents and financial records of Ambassador on March 3,1988, pursuant to a search and seizure warrant. The appellants were charged with promoting obscene material in violation of Ark. Code Ann. § 5-68-303 (1987). Under Ark. Code Ann. § 5-68-302(4) (1987), obscene material means material which:

(A) Depicts or describes in a patently offensive manner sadomasochistic abuse, sexual conduct, or hard-core sexual conduct;
(B) Taken as a whole, appeals to the prurient interest of the average person, applying contemporary statewide standards; and
(C) Taken as a whole, lacks serious literary artistic, political or scientific value;

At the trial, the movies, “Deep Chill” and “Sticky Business” and the magazine, “All Tied Up,” were shown to the jury.

During the viewing of “Sticky Business,” a movie depicting six men engaging in sexual acts, the trial judge within the hearing of the jury, said, “I’m feeling ill. How much longer.” The appellants made a motion for mistrial on the basis of this comment, and the trial judge denied the motion. In their first point of error, the appellants argue that the trial court’s denial of their motion for mistrial is reversible error. We agree.

A review of the record reflects that the trial j udge was agitated by the length of the films shown to the jury. By remarks made to counsel in chambers when allowing the appellants’ counsel to make their record, the judge added that his earlier comment was also precipitated because he was about to “throw up out there (in the court room).” While it is understandable how the judge may have become sensitive to and distraught over the extended viewing of explicit sexual activity, the law requires the judge to exercise restraint in these circumstances. No principle is better settled than that a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Chapman v. State, 257 Ark. 415, 516 S.W.2d 595 (1974). In recognition of the great influence a trial judge has on a jury, we have stated that the judge should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which might intend to influence the minds of the jury. Id. A comment by the trial judge expressing his opinion as to facts or evidence presented to the jury is reversible error. See Walker v. State, 253 Ark. 676, 488 S.W.2d 40 (1972).

In light of the importance of the film to the state’s case against the appellants, the trial judge’s comment is especially prejudicial. As stated by the U.S. Supreme Court, in pornography cases, the obscene material speaks for itself. See Paris Adult Theater I v. Slaton, 413 U.S. 49 (1973). The entire state’s case against the appellants consisted of the pornographic materials and Detective Corbin’s testimony. As the trial judge instructed and the state argued in this case, two of the elements of the crime with which the appellants were charged — promoting obscene materials — require that the jury find that the materials depict in a patently offensive manner sexual conduct, and appeals to the prurient interest of the average person. The trial judge’s comment obviously reflected his own feelings on these legal aspects in the case, and as a consequence, may have influenced the jury’s decision. Therefore, we must reverse on this point.

We also hold that the trial judge erred in denying appellants’ motion in limine thereby allowing the state to introduce certain objectionable evidence. During Detective Corbin’s investigation, he discovered a substance on the floor of one of the viewing booths. A sample of the substance was later analyzed and identified as semen. Also while in the viewing booth on another occasion, the detective looked through a hole between the booths and observed two men engaging in homosexual activity while watching an unidentifiable film. The appellants objected arguing the evidence was irrelevant and prejudicial. While the state argues that the appellants failed to challenge the evidence of the sexual activity in their motion in limine, we find the record shows that both items of evidence were discussed by all the parties and ruled upon by the trial judge at the hearing on the motion.

On appeal, the appellants renew their argument made below that the evidence in issue is irrelevant to the appellants’ charge of promoting obscene material. Under A.R.E. Rule 401, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Here, the appellants were charged with promoting obscene material, and the jury’s job was to determine whether the materials produced by the prosecutor met the legal definition of obscenity. As stated earlier, one of the elements of the definition of obscenity, is that taken as a whole, the material appeals to the prurient interest of the average person, applying contemporary statewide standards.

In Paris Adult Theater I v. Slaton, 412 U.S. 49 (1973), the Supreme Court stated that in obscenity cases, the films are the best evidence of what they represent and are sufficient in themselves for the determination of the question. However, in Splawn v. California, 431 U.S. 595 (1977), the Court affirmed a jury instruction allowing the jury to consider circumstances of the sale and distribution of the material in considering whether the alleged obscene material was utterly without redeeming social importance. In so holding, the Court stated that evidence of pandering to prurient interests in the creation, promotion, or dissemination of the material is relevant in determining whether the material is obscene. An example of such evidence is cited in Ginzburg v. United States, 383 U.S. 463 (1966). In Ginzburg, the Court held that evidence of circulars sent stressing the sexual candor of the publications, advertising for one of the publications containing a reproduction of the introduction of the book which was preoccupied with the book’s sexual imagery, and slips inserted in the advertising that stated that a full refund is guaranteed if the book fails to reach the buyer because of U.S. Post Office censorship interference were relevant in determining the ultimate question of obscenity.

As stated by the Supreme Court in Splawn, questions of what categories of evidence may be admissible and probative are for the courts of the States to decide. 431 U.S. at 599. From a review of the record in the present case, we observe that evidence, as that described in Ginzburg and Splawn, was introduced into trial through the testimony of Detective Corbin. For example, the detective testified about the following things: the way the magazines were categorized and displayed in the store; the way the video tapes were displayed; and the existence of a glass case displaying sexual novelty items. Further, the detective described in detail the viewing booths, including the fact that there were holes in the walls between some of the booths.

We believe that the testimony given by the detective can be characterized as evidence that showed how the appellants pandered to prurient interests. Such evidence, therefore, was clearly relevant to the determination by the jury of whether the materials at issue are obscene. The same conclusion cannot be reached concerning the state’s introduction of the semen evidence and that testimony by Detective Corbin regarding the homosexual activity he viewed while on Ambassador’s premises. Such evidence resulted from individual acts separate from the actual crime with which the appellants were charged. There was absolutely no evidence that showed the individual act or acts that caused the semen or the homosexual activity observed by Corbin were the result of the materials seized or purchased by the state. In sum, we are unable to hold that evidence of acts of individuals while in these booths watching films, not at issue at the trial, can be considered relevant evidence in the determination of whether the two movies and the magazine obtained from the appellants’ store are obscene material.

Since we reverse on the trial court’s denial of the appellants’ motion for mistrial and motion in limine, we address the remaining issues only for guidance on retrial. At the trial, the appellants made a motion to suppress the seizure of the movie, “Sticky Business,” and a motion to suppress boxes of quarters seized from appellant Oglesby’s car during an inventory search. The trial court dismissed both motions as being untimely. We agree. Pursuant to A.R.Cr.P. Rule 16.2(b), a motion to suppress must be filed no later than ten (10) days before the date set for trial of the case. This rule allows the court to entertain a motion at a later time only for good cause. Here, the appellants have failed to show good cause for either motion.

The appellants’ basis for the motion to suppress the movie was that the detective made a false statement about watching the entire film in his affidavit supporting the warrant. According to the appellants, they first became aware that the detective had not watched the entire movie during his testimony. The record fails to support this allegation. The detective stated in the affidavit that he purchased $5.00 in quarters and viewed portions of several movies, the first being “Sticky Business.” Likewise, the appellants failed to show good cause for the delay in the motion to suppress the boxes of quarters. The record clearly shows that the appellants were made aware of the prosecutor’s intent to use this evidence at the trial in a hearing on a motion for return of the money over two months before the trial. The trial judge was correct in ruling that both of these motions were untimely.

For the reasons stated above, we reverse and remand this cause.

       The state argues that the appellants’ motion for mistrial made after the state rested was untimely. However, the record reflects that the appellants’ counsel made an earlier attempt to make his motion but had been deferred by the judge. Thus, we conclude that the motion for mistrial was made at the first opportunity. Munnerlyn v. State, 293 Ark. 209, 736 S.W.2d 282 (1987).

       The state also contends that the court cannot address this issue because the appellants failed to make an objection at the time the evidence was introduced at trial. Since we hold that both items of evidence were raised in the motion in limine and overruled, no further objection is needed. See Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1981).


author: Per Curiam.

text:
    Anthony McCRANEY v. STATE of Arkansas
    RC 89-20
    772 S.W.2d 597
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      Robert L. Scull III, for appellant.
    No response.
   Per Curiam.

Robert S. Scull filed a motion for a rule on the clerk on behalf of his client, Anthony McCraney. However, the motion is not accompanied.by a proper affidavit as required by A.R.Cr.P. Rule 36.9. See our per curiam of February 5, 1979, reported at 265 Ark. 964, and the case of Melton v. State, 273 Ark. 474, 620 S.W.2d 946 (1981). It is the responsibility of the attorney of record to see that the record and transcript are timely filed. Nelson v. State, 272 Ark. 287, 613 S.W.2d 598 (1981).

“It is the duty of counsel, not the judge, not the clerk, not the reporter, to perfect an appeal.” See Finley v. State, 281 Ark. 38, 661 S.W.2d 358 (1983).Itis solelythe responsibility of counsel to see that orders are entered on time. “Counsel must anticipate problems of time and be prepared to do all acts necessary to perfect an appeal and it is no excuse or good cause that a judge, clerk or reporter miscalculates the time or fails to file an order on time.” Finley, supra. See also Smith v. State, 275 Ark. 416, 639 S.W.2d 22 (1982).

The motion for a rule on the clerk is denied without prejudice to file a proper motion.


text:
    Julius SPIVEY v. STATE of Arkansas
    CR 89-26
    773 S.W.2d 446
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petitioner Julius Edward Spivey was convicted of two counts of theft of property and sentenced as a habitual offender to twenty-five years imprisonment on each count. He then petitioned the trial court for reduction of sentence under Ark. Stat. Ann. § 43-2314 (Supp. 1985), now codified at Ark. Code Ann. § 16-90-111 (Supp. 1987). The trial court denied the petition, and the Court of Appeals affirmed both the original conviction and the order denying the petition. Spivey v. State, 25 Ark. App. 269, 757 S.W.2d 186 (1988). He now seeks post-conviction relief pursuant to Criminal Procedure Rule 37.

The petitioner first argues that he is entitled to have the convictions dismissed because his attorney did not file a motion to have the charges dismissed for failure to afford him a speedy trial. We have held that the failure of an attorney to raise a meritorious claim that the defendant was denied a speedy trial constitutes ineffective assistance of counsel. Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984).

Petitioner was charged by felony information on October 15,1985,butnot tried until April29,1987. Arkansas Rules of Criminal Procedure 28.1(c) provides:

Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, including release from incarceration pursuant to subsection (a) hereof, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

The date the charge was filed begins the time period for a speedy trial. Arkansas Rules of Criminal Procedure 28.2(a); Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988). The petitioner here was not tried until fifteen days after the eighteen-month period expired. Therfore, he was denied a speedy trial, unless there was some excludable period of time under Criminal Procedure Rule 28.3(a).

The issue of whether petitioner was afforded a speedy trial was not raised at trial or in the petition to reduce sentence filed after trial, and the record is silent as to whether the delay was legally justified. Contained in the record is a fugitive warrant issued on October 15, 1985, the day the charges were filed, and a document showing that the warrant was not served until December 2, 1986, when petitioner was arrested. It is likely that petitioner’s fugitive status was the reason for the delay, which would constitute an excludable period under Rule 28.3(a), but the petitioner asserts that he was incarcerated in November of 1986 and at that time he asked the prosecutor to schedule the trial. The state may have had good reason to delay bringing petitioner to trial, but the failure of the record to specifically set out those reasons makes it necessary to grant petitioner permission to apply to the trial court for an evidentiary hearing limited to the issue of whether counsel could have made a successful motion to dismiss the charges for failure to hold trial within the time limits set by Rule 28.

Petitioner also raises additional claims of ineffective assistance of counsel, none of which is supported by facts from which is can be concluded that the representation of counsel fell below the standard set by the United States Supreme Court and this court for conduct by counsel in a criminal case. To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).

Petitioner alleges that his attorney was remiss in not arranging to have him arraigned without unnecessary delay after arrest. Even if petitioner was not taken before a judicial officer in accordance with Arkansas Rules of Criminal Procedure Rule 8.1, however, the failure to comply with the rule does not dictate a dismissal of the charges, since a remedy for violation of Rule 8.1 is suppression of evidence obtained. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). Petitioner does not allege that any evidence was obtained as a result of the failure to comply with Rule 8.1.

Petitioner next contends that his attorney failed to have an accurate record of the trial court proceedings prepared for the purposes of appeal. He states that objections were left out and that names and testimony appear in the wrong places. He concedes that he filed a pro se motion in the Court of Appeals which covered essentially the same ground contained in the allegation before us. He also notes that his trial attorney filed a similar motion in the trial court, the disposition of which is unclear. The Court of Appeals denied the pro se motion to supplement, and it appears that petitioner may be asking this court to countermand the Court of Appeals’ decision to deny the pro se motion to supplement; if so, Rule 37 does not provide a means to relitigate a matter decided on appeal. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981). Even if the allegation were considered a simple allegation of ineffective assistance of appellate counsel, petitioner would still be entitled to no relief under Rule 37 because he has failed entirely to demonstrate that he was prejudiced by any particular omission or error in the record. A claim that prejudice was suffered without any factual explanation about what form the prejudice took or how serious it was is not enough to prove ineffective assistance of counsel. Conclusory allegations which are not supported by a showing of actual prejudice so serious as to deprive the petitioner of a fair trial or a fair appellate proceeding do not warrant an evidentiary hearing. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985).

Petitioner makes the vague allegation that counsel was ineffective for failing to dispose of some charges pending against him in Oklahoma. As the Oklahoma charges do not appear to have any connection with the convictions obtained in this case, petitioner has not made a showing of prejudice arising out of any action or inaction by counsel.

Petitioner’s final allegation concerns the victim’s testimony against him. He contends in essence that counsel should have moved to suppress their identification of him. From a review of the testimony of the witnesses, we do not find that petitioner has presented facts from which it may be concluded that the failure of counsel to move to suppress the testimony of the witness undermined the proper functioning of the adversarial process such that the trial cannot be relied on as having produced a just result.

Three witnesses identified petitioner at trial. The first was Ronald Kendrick who testified that petitioner came to his home at 10:00 a.m. and inquired about a car Kendrick had for sale in his yard. The two talked for two hours before agreeing on a price. Kendrick said that petitioner gave him a check which later proved to be no good and left with the car which was never recovered. Kendrick later picked petitioner from a photo lineup, which he testified was conducted without coaching from the police. He also subsequently identified petitioner at trial.

The next witness was Dennis Barton who told a story similar to Kendrick’s of being approached by petitioner about a truck he had for sale. He testified that petitioner arrived about noon and discussed the truck sale for approximately thirty minutes. He returned later that day and spoke with Patty Barton, Dennis’ wife, who testified that she talked with petitioner on her front porch for several minutes during which time she got a good look at him. Petitioner returned to the Barton home the next morning and sat in the house with Dennis while he wrote a check to pay for the truck. The check to the Bartons also proved worthless. Dennis picked petitioner from a photo lineup and identified him at trial, but Patty could only narrow her choice to two of the pictures in the photospread, petitioner and another man. After several minutes of indecision, she chose the other man. At trial, however she was confident that petitioner was the thief.

The factors to be considered in measuring the reliability of in-court identification are the opportunity of the identifying witness to observe the accused at. the time of the criminal act, the lapse of time between the occurrence and the identification, any inconsistencies in the description given by the witness, whether there was prior misidentification, the facts surrounding the identification, and all other matters relating to the identification process. Robinson v. State, 293 Ark. 228, 737 S.W.2d 150 (1987). There is no doubt that Dennis Barton and Ronald Kendrick had ample opportunity to view the man during daylight hours for an extended period of time. In fact, victims of crime rarely are afforded such a lengthy visit with the perpetrator. Both gave reasonably accurate descriptions of the person which matched petitioner’s description and both were able to make identifications from the photospread and in court. Patty Barton, who spent less time with the man, did not identify the petitioner from his photograph but was able to do so at trial. Petitioner presents no facts from which it may be concluded that there was any good reason to find their in-court identification unreliable. Petitioner also suggests that he was entitled to have a choice of suspects appear at his trial for the witnesses to choose from when making their in-court identification. He offers no authority for the proposition that the accused has a right to an in-court lineup, and we know of none. He has not shown that he was denied a fair trial by counsel’s failure to move to suppress the identification testimony.

Finally, petitioner makes several allegations concerning the discrepancy between the victims’ descriptions of him and his true appearance and other similar challenges which appear to be attacks on the sufficiency of the evidence. The question of the sufficiency of the evidence is not cognizable under Rule 37. See McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983).

Petition granted in part and denied in part.


author: Jack Holt, Jr., Chief Justice.

text:
    Wilburn D. ELMS v. STATE of Arkansas
    CR 89-92
    773 S.W.2d 89
    Supreme Court of Arkansas
    Opinion delivered July 10, 1989

      Gary Vinson, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

On August 12,1987, counsel for appellant Wilburn D. Elms entered a plea of nolo contendere to driving while intoxicated on behalf of Elms in municipal court. The court sentenced him to one day in jail, a fine of $350.25, and suspension of his driver’s license for ninety days. In addition, it ordered that he attend DWI School and Safety Driving School. Thereafter, Elms’ counsel executed an appearance bond on Elms’ behalf and appealed to circuit court. Five months later, the circuit court, upon motion of Elms’ counsel to dismiss the appeal and affirm the judgment of the lower court, entered a judgment affirming the lower court’s decision and assessing circuit court costs. The judgment recites that both Elms and his counsel were present when the court took this action. However, the record reflects that Elms was not present.

After learning that judgment had been entered by reading a local paper, Elms filed a motion asking that the judgment be set aside and a trial be granted on the basis that he had not authorized his attorney to enter into a negotiated plea. After a hearing, the court denied the motion. From this order, Elms appeals.

For reversal he contends that his plea of nolo contendere was invalid in that he was not present when the circuit court affirmed the judgment of the municipal court. This contention has merit.

Ark. R. Crim. P. 24.3(a) provides that “a plea of guilty or nolo contendere shall be received only from the defendant himself in open court, except that counsel may enter a plea of guilty on behalf of a defendant in misdemeanor cases where only a fine is imposed by the court.”

The circuit court’s maneuver in affirming the lower court’s judgment was tantamount to receiving a plea of nolo contendere from Elms through his attorney, which is permissible only where a fine is imposed by the court. The court sentenced Elms to a fine, imprisonment, and suspension of his driver’s license even though he was not present.

Obviously, the circuit court violated Rule 24.3(a). For this reason we invalidate Elms’ plea and set aside the court’s judgment, thereby providing Elms his day in court.

Reversed and remanded.

Hickman, J., dissents.


text:
    Gilberto RODRIQUEZ v. STATE of Arkansas
    CR 88-142
    773 S.W.2d 821
    Supreme Court of Arkansas
    Opinion delivered July 10, 1989

      Darrell F. Brown & Associates, P.A., for appellant.

      Steve Clark, Att’y Gen., by: J. Denchammcclendon, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Gilberto Rodriquez was convicted by a jury of possession with intent to deliver a controlled substance, 320 pounds of cocaine, and was sentenced to life imprisonment and fined $250,000.00. He argues on appeal that the trial court erred in not granting his motion to suppress since the traffic stop of the vehicle he was driving was a pretext and not based on probable cause, resulting instead from an impermissible “profile stop” that rendered the subsequent warrantless and otherwise unjustified search of the vehicle unlawful. Appellant further argues his trial was characterized by abuses of discretion and other irregularities that individually and collectively worked to deny him due process of law. We find no error and affirm.

At about 3:00 p.m. on December 19, 1987, Arkansas State Police Officer Steven Cook was on routine patrol traveling south on Interstate 55 near Osceola. It was foggy and raining hard at the time. Officer Cook observed a silver Lincoln coming from the opposite direction and determined the vehicle was speeding, which was confirmed by radar showing the Lincoln to be going 70 in a 65 mph zone. Cook drove his vehicle across the median with the intent of stopping the driver to issue a warning citation. The Lincoln exited from the interstate and proceeded almost one mile to the driveway of a house trailer.

Cook parked behind the Lincoln whereupon appellant exited the car and offered to produce a birth certificate as identification in lieu of a driver’s license. Upon determining that Rodriquez had no connection with the people in the trailer, Cook requested that appellant back his car out of the driveway before producing the birth certificate. After Cook had moved his patrol unit, Rodriquez backed his vehicle into the street but then proceeded to flee the scene at a high rate of speed. Cook pursued Rodriquez and requested a backup. Eventually, the vehicle Rodriquez was driving became stuck in the mud on an air strip nearby. Cook’s vehicle also became mired in the mud, and he continued his pursuit on foot since Rodriquez had abandoned the Lincoln with the engine running and the front door open.

While Cook and other officers who arrived at the scene searched for Rodriquez, a deputy remained with the vehicles on the air strip. Rodriquez was later apprehended, arrested for fleeing and driving with a suspended driver’s license, given his Miranda rights, and transported to a local detention center. The Lincoln was removed from the mud by officers at the scene and was driven to a service station used by the Arkansas State Police for towing services with the intent that the vehicle’s contents would be inventoried.

En route to the service station, the officer driving the Lincoln observed three rolled cigarettes on the floorboard and a clear plastic baggie containing a green leafy substance he believed to be marijuana. Once the vehicle was examined at the service station, it was discovered that the trunk contained a cardboard box and five duffle bags secured with padlocks. The contents of one of the bags was visible through a small opening that revealed the presence of a white powdery substance. The officers closed the trunk and secured the vehicle at another location where an inventory of the contents of the trunk produced approximately 302 pounds of what was later determined to be cocaine.

Rodriquez first contends the traffic stop of the vehicle was a pretext and this was actually a profile stop because, he argues, “it looked peculiar [to Officer Cook] for a Hispanic man to be traveling in Arkansas in a Lincoln Town Car.” The argument is without merit.

In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling was clearly against the preponderance of the evidence. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988). Officer Cook testified it was foggy and raining hard at the time he observed Rodriquez coming towards him. He concluded that appellant was speeding, and his observations were confirmed by radar which clocked the Lincoln at 70 mph in a 65 mph zone. Under the circumstances then existing, Cook was clearly warranted in stopping the vehicle. In this regard, Ark. Code Ann. § 27-51-201(a)(1) (1987) provides that no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Section 27-51-201(d) provides that consistent with the requirements of subsection (a), “the driver of every vehicle shall drive at an appropriate reduced speed . . . when special hazard exists with respect to . . . or by reason of weather or highway conditions.”

Cook testified his only intent was to issue a warning citation. He further testified that at no point during his initial observation of the vehicle was he able to distinguish the driver’s features, and he did not notice that the vehicle had Texas plates until he parked his patrol unit behind the Lincoln at the house trailer. Suffice it to say, we find the argument that the stop was pretextual or based upon a “profile” entirely unconvincing. The trial court did not err in denying appellant’s motion to suppress on this point.

Rodriquez next challenges the trial court’s determination that the search of the Lincoln was lawful. In upholding the search, the trial court relied upon several theories, but Rodriquez argues that neither exigent circumstances, abandonment, plain view, inventory, nor search incident to a lawful arrest can support the officers’ conduct. We need not address these issues because Rodriquez is not the owner of the vehicle nor does he assert any interest in the contraband. Therefore, he does not have standing to question the search. Tippitt v. State, 294 Ark. 342, 742 S. W.2d 931 (1988); Rakas v. Illinois, 439 U.S. 128 (1978).

Rodriquez testified he was unemployed and was approached by someone at a bar in Texas who offered to pay him to drive the Lincoln to Chicago. Rodriquez would not identify the person he met in the bar and stated he had not had any other dealings with the individual. Nor could he identify the owner of the Lincoln, and he specifically denied recognizing the name of the registered owner when asked to do so at trial. Furthermore, he would not disclose the name of the individual living at the address where he went to pick up the Lincoln. Rodriquez testified it was his impression he was hauling marijuana in the car. He candidly conceded that he did not own the cocaine later discovered in the trunk. Finally, he testified that whereas he knew where he was supposed to drop the car, he had no idea who was to meet him, and he was simply to return to Texas by plane.

Even if we were to find that appellant had standing to challenge the search of the Lincoln, he clearly abandoned any expectation of privacy he might have had in the vehicle or its contents when he fled from the officer at the air strip with the car running and the door open. In this respect, we find the case is controlled by our recent decision in Cooper v. State, 297 Ark. 478, 763 S. W.2d 70 (1989), where we approved the abandonment theory set forth in Thom v. State, 248 Ark. 180, 450 S.W.2d 550 (1970), as it applied to cases involving defendants who flee from officers leaving behind an unlocked vehicle. See 1 W. LaFave, Search and Seizure § 2.5(a) (1987), and cases discussed therein.

In his final argument, Rodriquez takes a shotgun approach sprinkling this court with, to use his expression, a “plethora” of alleged irregularities and abuses of discretion which he argues mandate reversal. He contends: (1) the court erred in denying a continuance so that defense counsel could better prepare for the case and respond to last minute evidence presented by the State; (2) the prosecution failed to make certain material subject to discovery available in a timely fashion; (3) the prosecutor further impermissibly made reference to the marijuana found in the car and also calculatedly sought to inflame the passions of the jury; (4) the jury selection process was fraught with error; and (5) the court erred in its ruling with respect to chain of custody as concerns introduction of unspecified evidence.

As to points (2) and (5), Rodriquez fails to identify the material that was not timely furnished or what evidence was subject to a chain of custody challenge. As to point (1), the denial of a motion for continuance is within the sound discretion of the trial court, and this court will reverse only upon a showing of an abuse of discretion. Wilson v. State, 297 Ark. 568, 765 S.W.2d 1 (1989). Appellant has neither demonstrated an abuse of discretion by the trial court nor shown how he was prejudiced, especially since any additional efforts on counsel’s part with respect to the search issue would have been futile given appellant’s lack of standing. We find no merit whatsoever to the challenge of the jury selection process under point (4).

We have reviewed appellant’s argument that the prosecution impermissibly made reference to the marijuana and calculatedly sought to inflame the minds of the jurors, as well as all objections of record decided adversely to appellant. See Rule 11 (f) of the Rules of the Supreme Court; Ark. Code Ann. § 16-91-113 (1987). We find no error.

Affirmed.


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

text:
    FORD’S INC., An Arkansas Corporation, et al. v. RUSSELL BROWN & COMPANY
    88-314
    773 S.W.2d 90
    Supreme Court of Arkansas
    Opinion delivered July 10, 1989

      Pickens & Watson, by: Fred M. Pickens', and Locke, Purnell, Rain & Harrell, A Professional Corporation, for appellants.

      Friday, Eldredge & Clark, by: Robert K. Walsh, for appellee.
   Darrell Hickman, Justice.

This case involves the appellants’ professional malpractice claim against appellee for its having given appellants erroneous tax advice. At trial, appellee moved for summary judgment on the grounds that the appellants’ claim was barred by the three year statute of limitations set out in Ark. Code Ann. § 16-56-105 (1987). The trial court agreed that the claim was barred, adding even if appellants’ allegations of fraudulent concealment were true under the facts of this case, the statute of limitations had run. We affirm.

The facts are essentially undisputed. In 1973, the appellants employed appellee to advise them on how to liquidate their business on a tax-free basis. Relying on appellee’s advice, given in August 1974, appellants liquidated and distributed their company’s assets. Appellee prepared the final tax return for the company (and some of the 1974 individual tax returns) reflecting a tax-free liquidation.

The Internal Revenue Service (IRS) commenced an audit of the appellants’ returns in late 1976 or early 1977, and after several conferences and filing of protests, imposed additional taxes and interest, as a result of the liquidation, in the amount of $648,000 plus interest. The chronology of events, concerning the results from the IRS audit, began with appellants first being notified in January 1978 that they owed a tax deficiency. On September 8, 1978, appellee conceded that the IRS’s position regarding the deficiency was at least partially correct and recommended that the appellants accept a proposed settlement. After October 26, 1978, the IRS assessed additional taxes and interest, and on September 4, 1981, appellants brought this suit against appellee for the damages incurred as a result of appellee’s erroneous advice.

The central issue to be decided is whether the applicable three year limitation commences from August 1974, the date appellee gave the erroneous tax advice concerning liquidation, or from October 26, 1978, when appellants were actually assessed the deficiency amount which resulted from appellee’s negligent conduct or advice. Obviously, appellants’ action was filed timely only if the three year limitation commenced from the October 26, 1978, date; except for the September 8 and October 26, 1978, dates, all other relevant dates noted above were beyond the three year period from when appellants later filed suit on September 8, 1981.

Appellants point out that this court has never considered an accountant malpractice case or decided when the limitation period should start to run in such cases. In deciding the issue, appellants urge us to construe the limitation statute to commence from the date IRS gives its notice of an assessment of tax deficiency, and cite a number of other jurisdictions in support of their contention. Cameron v. Montgomery, 225 N.W.2d 154 (Iowa 1975); Atkins v. Crosland, 417 S.W.2d 150 (Tex. 1967); see also, Moonie v. Lynch, 256 Cal. App. 2d 361, 64 Cal. Rptr. 55 (1967); Feldman v. Granger, 255 Md. 288, 257 A.2d 421 (1969); Chisholm v. Scott, 86 N.M. 707, 526 P.2d 1300 (1974). In further support of their contention, appellants reason that, until they are assessed a tax deficiency, they have not sustained an injury, and they should not be obligated to file an action until liability is established.

First, we should note that appellants’ reliance upon some of the cases they cite is misplaced. For example, in Feldman, the Maryland Court of Appeals considered Feldman’s malpractice action against an accounting firm for the firm’s late filing of a document with the IRS. The accounting firm contended that the limitation began to run on November 12, 1960, the day the taxpayer learned of the late filing, and Feldman argued the time commenced only when he sustained the deficiency assessment made by the IRS. Similar to the argument made by appellants in the present case, Feldman reasoned that no claim should accrue for the purpose of commencing the limitation statute until all events have occurred which fixed his liability and upon which he would file his suit. In adhering to the so-called discovery rule, the Maryland court rejected Feldman’s claim and found that on July 22, 1964, he received notice of the tax deficiency, and the court determined that any reasonable and prudent man, being in Feldman’s position, would have known, or should have known at that time, that he sustained legal harm as of that date, if not before. In short, the Feldman case actually rejected the argument that the limitation statute should commence only when the tax deficiency assessment was made.

The Moonie case, also relied on by appellants, fails to support the view which the appellants urge here. Although the California court concluded that the taxpayer had no way of knowing his tax return had been improperly prepared until the government assessed him a penalty, the court adopted the rule that in a malpractice action against an accountant, the statute of limitations does not run until the negligent act is discovered, or with reasonable diligence could have been discovered. In other words, the Moonie holding depended upon the same type analysis as the one relied on in Feldman.

Even if we adhered to the discovery rule in accounting malpractice actions, the record in the instant case reflects the appellants were first notified of a deficiency in January 1978. Thus, using the reasoning and holding in Feldman, it could be concluded that the appellants knew, or reasonably should have known, of appellee’s negligent conduct by January 1978 — which was more than three years prior to the date the appellants filed suit.

Our decisions have settled this limitation question in professional malpractice actions, and our rule is considerably more restrictive than any of the cases cited and relied on by appellants. In Arkansas malpractice cases, concerning attorneys and physicians, we have consistently held that the statute of limitations begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when it is discovered. Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989); Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988); Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). In fact, Arkansas courts have followed this rule, as it pertains to professional malpractice actions, for well over one hundred years. See White v. Reagan, 32 Ark. 281 (1877) (quoting from Howell v. Young, 5 Barn. & Cress. 259). That being so, we see no compelling reason why we should adopt a different rule to be used in accounting malpractice cases. Accordingly, since appellee’s erroneous advice or negligent conduct occurred in August 1974, appellants’ suit filed on September 8, 1981, was clearly beyond the three year limitation statute. We observed in Riggs v. Thomas, supra, that if such a marked change is to be made in statutes that have long been the law, it should be done by the legislature, not the courts.

Appellants also argue that even if the limitation statute commenced from the August 1974 date, appellee was guilty of fraudulent concealment which tolled the running of the statute. Although appellants now argue fraud, we note that they never alleged fraudulent concealment in their complaint. Even if appellants had asserted fraud, our review of the record reflects the only evidence from which one might infer concealment on appellee’s part is when the parties met with the IRS in January 1977, and appellee defended its position and advised appellants they had nothing to worry about. Of course, any concealment attributed to appellee would have ended in September 1978, when appellee conceded it had given appellants erroneous advice. Based upon these facts, the statute of limitations began to run in August 1974 and the appellants never brought suit until seven years later. Even if we deducted the period between January 1977 and September 1978 (the alleged period of concealment), the appellants’ suit would still have been beyond the three year period required by the statute of limitations.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The appellants employed the appellee to liquidate the family business in a manner which would cause the appellants to pay the least amount of taxes possible. The appellee came up with a tax-free return for calendar year 1974. However, the IRS commenced an audit of the returns in late 1976 or early 1977, which resulted in a request from the IRS to the appellants to pay $648,000.00 in taxes resulting from the liquidation of the business in 1974. The first notice of the deficiency was given in January, 1978.

The appellants contacted the appellee immediately after receiving the deficiency notice and were informed by appellee that the IRS was in error and not to worry about it. Up until September 8, 1978, the appellees insisted the appellants did not owe any taxes. On that date the appellee conceded that the IRS was correct and admitted the appellants owed money. Furthermore, they recommended that the appellants pay a proposed settlement. On October 26,1978, the IRS made its assessment for the deficiency judgment.

I agree that this court has never before written an opinion concerning the statute of limitations for malpractice by accountants. In my opinion we should use common sense and ordinary reasoning power to establish the commencement of the three-year limitation period. In that case the earliest the statute would commence to run would be September 8, 1978. The appellants filed suit on September 4, 1981, which is clearly within the three-year limit up until September, 1978. The appellees defended their prior action and insisted the IRS was wrong. In fact the appellants had not been harmed until they received a demand for additional taxes. There was no way appellants should have or could have learned, for that matter, that they would owe additional taxes.

The only fair and reasonable way to establish the statute of limitations is to use the date of September 8, 1978, because the appellees deliberately and intentionally covered the error or miscalculation up until that time. Justice demands no less.


author: Darrell Hickman, Justice.

text:
    QUINN COMPANIES, INC., et al. v. HERRING-MARATHON GROUP, INC. et al.
    89-144
    773 S.W.2d 94
    Supreme Court of Arkansas
    Opinion delivered July 10, 1989

      Kaplan, Brewer & Maxey, P.A., for appellants.

      Wallace, Dover & Dixon, by: David A. Couch, for appellees.
   Darrell Hickman, Justice.

The appellant, Quinn Companies, Inc., executed two property management contracts with the appellees involving a hotel and an office complex in southwest Little Rock. Quinn was discharged in 1987 and filed suit against the appellees claiming they had engaged in willful and malicious behavior amounting to a “tortious breach of contract.” The jury returned a verdict of $236,806 in favor of Quinn, but the judge set the verdict aside stating it could not be supported by the evidence and that the damages were based on speculation. We affirm.

Two questions are squarely presented by this case: one, do we recognize a cause of action for tortious breach of a contract, and two, are we willing to extend the tort of bad faith beyond the context of insurance contracts? The answer to both questions is no.

The appellants claim we have recognized a cause of action for tortious breach of contract and cite the cases of Dongary Holstein Leasing, Inc. v. Covington, 293 Ark. 112, 732 S.W.2d 465 (1987), and L. L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984). We have acknowledged that the same conduct may give rise to either an action in tort or in contract. For example, in Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), we declared that if an employer’s conduct in breaching an employment contract is sufficiently egregious or extreme, the employee may claim tort damages in a cause of action for outrage.

In a situation involving sale of goods, we have recognized that a plaintiff may pursue alternative theories of recovery based either on contract or the tort of deceit. Thomas Auto Co., Inc. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989). Clearly, if the facts warrant, a party to a contract may sue on an independent tort claim. But a plaintiff may not transform a breach of contract action into a tort claim by alleging the breach was motivated by malice. The breach itself simply is not a tort. See Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597 (6th Cir. 1988); Cotton v. Otis Elevator Co., 627 F. Supp. 519 (S.D.W.Va. 1986), aff'd, 841 F.2d 1122 (4th Cir. 1988); Martin v. Federal Life Ins. Co., 109 Ill. App. 3d 596, 440 N.E.2d 998 (1982).

In fairness, we must revise our holding in Dongary Holstein Leasing to remove the implication that we recognized a cause of action for tortious breach of contract. The pertinent language in that case is overruled to the extent it is inconsistent with this opinion. We do not find the L. L. Cole & Son case should be overruled, although it does contain some isolated language that would lend ammunition to the appellant’s theory. But we hold today that the breach of a contract is not a tort, and those two cases should not be read to say otherwise.

The next question is whether we should extend the tort of bad faith to contractual relationships which do not involve insurance claims. In Aetna Casualty & Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1983), we held that an insurer may be liable for affirmative misconduct which is dishonest, malicious or oppressive in an attempt to avoid liability under a policy, the components of the tort of bad faith. The holding in Broadway Arms has never been extended to establish a claim for bad faith beyond the context of insurance contracts, and we decline to do so in this case. See generally Battista v. Lebanon Trotting Assoc., 538 F. 2d 111 (6th Cir. 1976); Nicholson v. United Pacific Ins. Co., 710 P.2d 1342 (Mont. 1985).

We find the trial court was correct in setting aside the verdict.

Affirmed.