text:
    Lonnie Dolphus STRAWHACKER v. STATE of Arkansas
    CR 90-198
    804 S.W.2d 720
    Supreme Court of Arkansas
    Opinion delivered March 4, 1991

      Denny Hyslip, Public Defender, for appellant.

      Mary B. Stallcup, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This case involves an appeal from a rape conviction and first degree battery conviction, where the appellant, Lonnie Strawhacker, received a life sentence for rape, as an habitual offender, and thirty years for first degree battery, with the two sentences to run concurrently. The appellant argues four points on appeal, and the state as appellee raises one further point under Supreme Court Rule 11(f).

The facts were related by the victim at trial. The appellant did not testify. On Friday night, August 11,1989, the victim went by herself to a nightclub called The Rink in Fayetteville at 9:00 p.m. and stayed there for two to three hours. Prior to going she had consumed about six beers. At The Rink she had at least two more beers and went across the street to a second nightclub, Club West, where she was refused entry because the man at the door said she was too intoxicated. The victim then crossed the street again to find her car, and as she was about to walk down into a ditch area, which had a very rocky bed, she was struck from behind and pushed into the ditch. A man put his hand over her mouth and then tried to choke her. He struck her several times in the face, head, and abdomen with his fists.

The man asked her to take her clothes off, and when she could not, he continued to beat her. By this time she was bleeding from the mouth and nose, and her eyes were swelling shut. The appellant then proceeded to rape her.

The victim estimates she was in the ditch with the appellant for five hours, but because of the darkness and her swollen eyes she never was able to see her attacker’s face. After the appellant and the victim left the ditch, they went to the victim’s mobile home in a trailer park. The victim was in considerable pain and got into her bed, where appellant joined her. The victim does not know whether the appellant had sexual intercourse with her in bed, because she was drifting in and out of consciousness.

When the victim awoke in the morning, the appellant had gone, and, though virtually blind because of her swollen eyes, she made her way to a neighbor’s house to seek help and was taken to the hospital.

Motion for Mistrial

The appellant first argues that a police detective’s testimony which alluded to prior bad acts by the appellant and his conviction for third degree battery, a misdemeanor, severely prejudiced the appellant’s case. The colloquy between the prosecutor and the detective was as follows:

Prosecutor: That would be through his conversation with Mr. Krogman?
Detective: That’s correct. We began to research through our department files to see what information we might have on Mr. Strawhacker. The only thing that we could find there was that he had been involved in a fight in May of 1989. We didn’t have any current photographs of him on file, but we did have a misdemeanor arrest warrant for him for failure to answer a summons on a failure to pay fines and costs on an original charge of third degree battery.

Three more questions and answers ensued, after which the defense counsel approached the bench and moved for a mistrial due to the mention of the prior conviction.

The trial court denied the motion for mistrial, and the defense counsel asked for an admonishment to the jury which the trial court made:

Ladies and gentlemen of the jury, I want to instruct you to totally disregard any comments the witness might have made relative to a conviction for battery in the third degree, any prior arrest warrants or any mug shots. That has been ruled on by the Court that it will be totally disregarded by you. Is there anyone that feels they cannot follow that instruction? (No response.) That’s not to be considered in this case in any way whatsoever.

We have held in the past that the trial court is granted wide latitude of discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of that discretion or manifest prejudice to the complaining party. Bennett v. State, 284 Ark. 87, 679 S.W.2d 202 (1984). We have further held that a cautionary instruction or admonishment to the jury can make harmless any prejudice that might occur. Id; see also Ronning v. State, 295 Ark. 228, 748 SW.2d 633 (1988); Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).

Another important factor we have considered in similar cases is whether the prosecutor deliberately induced a prejudicial response. See, e.g., Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983). In Maxwell the prosecutor specifically referred to a prior conviction in his cross examination, and we held that an admonishment by the trial court did not cure the possibility of prejudice. We concluded that the deliberateness of the prosecutor’s action could not be “made harmless by anything less than a reprimand in the presence of the jury or by the granting of a mistrial.” 279 Ark. at 425, 652 S.W.2d at 33. In this case that deliberateness does not exist. The prosecutor’s action was inadvertent and did not specifically elicit the response from the detective.

There is always some prejudice that results from the inadvertent mention of a prior conviction, albeit a misdemeanor, in front of the jury. Any prejudice, however, was sufficiently cured by the trial court’s admonishment, and the trial court was correct in denying the mistrial motion under these facts.

Admissibility of Photographs

The appellant next argues that the two photographs of the beaten and scratched victim should not have been admitted into evidence, because they were inflammatory and cumulative, following the victim’s testimony. We do not agree. The appellant was charged with rape, an offense which requires proof of forcible compulsion, and first degree battery, where serious bodily injury must be proven for a conviction. Corroborative photographs showing the extent of the bodily injury to the face, head, abdomen, and breasts of the victim certainly were relevant to the charges. Such photographs are admissible within the discretion of the trial judge if they help the jury understand the testimony. Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). They are further admissible to show the nature and extent of the victim’s injuries. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). Even inflammatory photographs can be admitted, if they shed light on any issue or are helpful to the jury. Cash v. State, 301 Ark. 370, 784 S.W.2d 166 (1990). The photographs introduced in this case easily qualify under the Richmond, Earl, and Cash standards.

The defense counsel at trial sought to stipulate that the victim was raped and beaten, while at the same time denying the appellant’s involvement, in an effort to eliminate the photographs as evidence of those crimes. We have previously held, however, that a defendant cannot prevent the state from offering proof of photographs simply by conceding the fact of the crime. See Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). Here, that is exactly what defense counsel attempted to do.

The trial court did not abuse its discretion in admitting the photographs into evidence.

Double Jeopardy

For his third argument the appellant contends that his double jeopardy rights were violated due to conviction for first degree battery which, he argues, is a crime embraced within the “forcible compulsion” element of rape. The information charged that the appellant:

did unlawfully, feloniously, and by forcible compulsion, engage in sexual intercourse or deviate sexual activity with another person, in violation of A.C.A. §5-14-103, against the peace and dignity of the State of Arkansas; and
did unlawfully and feloniously cause serious physical injury to another person, under circumstances manifesting extreme indifference to the value of human life, in violation of A.C.A. §5-13-201, against the peace and dignity of the State of Arkansas ....

Our statute on double jeopardy requires that a defendant cannot be convicted of more than one offense, when one offense is included within another. Ark. Code Ann. § 5-1-110 (1987). An offense is included within another offense, if it is established by proof of the same or less than all the elements required to establish the commission of the other offense. Id. That is not the situation in this case. Rape and first degree battery are separate and distinct crimes as set out in the information with different elements of proof. And neither is a crime which can be subsumed under the other. See Henderson v. State, 286 Ark. 4, 688 S.W.2d 734 (1985). Moreover, “forcible compulsion” under the rape statute is defined as “physical force,” which is further defined as “any bodily impact, restraint or confinement, or the threat thereof.” Ark. Code Ann. § 5-14-101(2) (1987); West v. State, 290 Ark. 329, 335, 719 S.W.2d 684, 688 (1986). “Serious physical injury” under the first degree battery statute is defined as “physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.” Ark. Code Ann. § 5-1-102 (1987). Comparing the elements of forcible compulsion and serious bodily injury highlights the substantial difference between the two crimes. Quite simply, the injury contemplated under the first degree battery statute is much more significant than forcible compulsion. The appellant’s argument on this point has no merit.

Voice Identification

The appellant further contests a voice lineup which was conducted on August 16, 1989 — four days after the crime — while the victim was still in the hospital. The appellant and five police officers participated in the lineup. Each man read the following sentences: “Let’s go to Club West and go drinking. I like light beer. I’m going to kill you. Shut up. I’m going to kill you, bitch. I’m going to kill you, bitch. Shut up. Shut up. You need to go take a bath and clean up.” The victim could hear but not see the speakers, because they stood behind curtains.

The appellant argues that the police officers had “cop voices” which were distinguishable from the appellant’s and that by directing the appellant where to stand before he spoke, the supervisor of the lineup signaled the identity of the suspect to the victim. We do not agree. The supervisor at the lineup also directed another participant where to stand. And though the victim asked the appellant to read the sentences one more time, she testified this was not due to uncertainly but was done to confirm her decision.

Voice identifications are permissible in Arkansas. See Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984). As we also said in Wilson: “It is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence, and then it is for the jury to decide what weight the identification testimony should be given. 282 Ark. at 553, 669 S.W.2d at 890.

The admissibility of identification evidence is a matter for the trial court, and we will not reverse unless its ruling is clearly erroneous. Wilson v. State, supra. Furthermore, we will not insinuate ourselves into this process, unless the likelihood of irreparable misidentification is substantial. See Simmons v. United States, 390 U.S. 377 (1968).

The trial court listened to a tape recording of the lineup and not only admitted it but added, “It appears to me to be an awfully clean lineup.” We affirm his decision on this point.

Sufficiency of the Proof - First Degree Battery

Lastly, there is an argument raised by the state under Supreme Court Rule 11 (f) as to the sufficiency of the appellant’s conduct to warrant a first degree battery conviction. The appellant did not raise the sufficiency question before the trial court, and by not doing so he waived his right to raise this issue on appeal. We have repeatedly declined to consider sua sponte what was not raised before the trial court for its consideration. See, e.g., Parkerv. State, 292 Ark. 421, 731 S.W.2d 756 (1987); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).

Affirmed.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    LEMARCO, INC. v. Cammie WOOD, et al.
    91-32
    804 S.W.2d 724
    Supreme Court of Arkansas
    Opinion delivered March 11, 1991

      Everett O. Martindale, for appellant.

      Willard Proctor, Jr., for appellee.
   Robert H. Dudley, Justice.

The plaintiffs filed a complaint against defendant Lemarco, Inc., and against Donco Financial, Inc. The plaintiffs asked that the case be certified as a class action. After a hearing, the trial court granted the plaintiffs’ motion to certify a class action against Lemarco, Inc., but denied their request with respect to Donco Financial, Inc. Lemarco, Inc., appeals from that ruling. There is no cross-appeal from the refusal to grant class certification against Donco Financial, Inc. Thus, the sole issue is whether the trial court abused its considerable discretion in certifying this case as a class action. We hold that the trial court did not abuse its discretion.

Lemarco, Inc. is a “private buyers club.” Members are solicited with promises of prizes for attending sales presentations. The class certified by the trial court consists of those “who entered into retail installment membership contracts with Lemarco and have claims against Lemarco for fraud, false advertising, misrepresentation, breach of contract, and violations of the Arkansas Deceptive Trade Practices Act.” In short, plaintiffs allege that Lemarco’s offer of free gifts and its subsequent representations concerning the benefits of membership were part of a scheme to defraud the class members of their membership fees.

We recognized in Int’l Union of Elec., Radio & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988), that our attempts to cling to a pre-ARCP Rule 23 tradition, which disfavored class actions, were inconsistent with the rule itself, and that the federal rule’s spirit favoring class actions was also present in our rule. Further, we gave to the trial court broad discretion to decide whether to certify a case as a class action.

ARCP Rule 23 governs class actions in Arkansas, and the requirements of both subsections (a) and (b) of that rule must be met in order to proceed as a class.

Rule 23(a)

Subsection (a) of the Rule provides:

(a) Prerequisites to Class Action. Where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring all before the court within a reasonable time, one or more may sue or defend for the benefit of all.

In short, Rule 23(a) requires that the questions presented be of interest to many persons, or numerous parties, and that it be impractical to bring them all before the court within a reasonable time. Cooper Communities, Inc. v. Sarver, 288 Ark. 6, 701 S.W.2d 364 (1986). Plaintiffs presented the following testimony in support of class certification: a volunteer for “Seven On Your Side”, a commercial television station’s consumer assistance program, testified that they had received calls from approximately 500 persons who were expressing complaints about Lemarco’s operations; an attorney with Central Arkansas Legal Services testified that office had twenty cases pending against Lemarco; and a member of the Abused Buyers Committee testified that it had a file of approximately 300 persons who had registered complaints against Lemarco. This amounts to over 800 persons interested in the questions raised by plaintiffs against Lemarco. Obviously, it would be impractical to bring that many persons before the court within a reasonable time. Accordingly, the trial court did not abuse its discretion in determining that the requirements of Rule 23(a) had been met.

Rule 23(b)

Subsection (b) of the Rule provides in pertinent part:

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

As the reader can see from the rule, one of the requirements of Rule 23(b) is that the common questions of law or fact must predominate over the questions affecting only individual members of the class. Lemarco’s president, Rusty Dorrell, testified that salesmen were trained by videotape, that they were instructed on what to say and how to make the sales presentations, and that the presentations were virtually the same each time. Further, the mail solicitation and the retail sales contracts were virtually the same for each member of the class. Accordingly, at a minimum, there are common questions of fact arising out of the sales training, the solicitation mailings, the sales presentations, the installment contracts, and appellant’s intentions with regard to all of them. Those common questions would predominate over any questions affecting only individual members. See Hudson, 295 Ark. at 119-20. Accordingly, the trial court did not abuse its discretion in determining that appellees satisfied this requirement of Rule 23(b).

Rule 23(b) also requires that a class action be superior to other available methods for the fair and efficient adjudication of the controversy. As we explained in Hudson, supra, by limiting the issues to be tried in a representative fashion to the ones that are common to all, the trial court can achieve real efficiency. As set out, there are several common questions of fact involved in this case. Even if the trial court eventually determines that the cases have to splinter with respect to some individual claims, efficiency would still have been achieved by resolving those common questions which predominate over individual questions. Finally, pursuing this case as a class action is fair to both sides. Lemarco can offer evidence concerning its sales training, solicitation mailings, sales presentations, installment contracts, and its intentions regarding all of them. It can also present individual defenses to the claims of individual class members, if necessary, once the common questions have been determined. A class action approach is also fair to the class members in that they probably would not sue if they could not do so as a class since it would not be economically feasible to do so. Consequently, the trial court did not abuse its discretion in determining that appellees satisfied this final requirement of Rule 23(b).

Affirmed.


text:
    Kay NALL v. Lonnie DUFF, Administrator of the Estate of Eva Duff, Deceased
    90-347
    805 S.W.2d 63
    Supreme Court of Arkansas
    Opinion delivered March 11, 1991
    [Rehearing denied April 15, 1991.]

      Lyons & Emerson, by: Jim Lyons, and Rose Law Firm, A Professional Association, by: Richard T. Donovan, for appellant.

      Gus R. Camp, for appellee.
   Robert H. Dudley, Justice.

This case involves the establishment of joint tenancies in bank accounts. For several years appellant Kay Nall cared for her next-door neighbor, Eva Duff, an elderly lady who lived alone. Kay cleaned Mrs. Duffs house, helped her run errands, and paid her bills. On February 9,1987, Mrs. Duff opened a checking account at Corning Bank in the amount of $26,276.49. She told the bank officer she wanted Kay to sign the signature card for the account so that she could help take care of her account. Both Kay and Mrs. Duff signed the signature card, which recited that it was a “Joint and Several Checking Account, Payable to Either or Survivor.” On that same date, Mrs. Duff opened a money market checking account in the amount of $49,727.13. Again, both she and Kay signed the signature card, which designated the account to be a “Joint Account — With Survivorship,” and stated that “Such an account is issued in the name of two or more persons. Each of you intend that upon your death the balance in the account. . . will belong to the survivor(s).”

On March 13, 1987, Mrs. Duff and Kay returned to the Coming Bank and Mrs. Duff purchased a certificate of deposit in the amount of $22,179.98. She and Kay signed the “Time Deposit Agreement and Signature Card.” The card stated that this was a “Joint” certificate and that “the signators . . . acknowledge that the depositor . . . , both as to the original deposit and any subsequent deposits, intend that such funds as may constitute any account balance upon the death of any party to this account, shall be the property of the surviving party or parties who shall take as a surviving joint tenant.”

After Mrs. Duff opened the joint bank accounts, she told Kay that the money in the accounts would repay her for all that she had done for her. Mrs. Duff suffered a stroke in late December 1987. From then until her death on May 1, 1988, she was in hospitals and nursing homes and was unable to speak or to recognize her visitors.

On January 8, 1988, before Mrs. Duffs death, Kay withdrew $83,383.44 from the joint accounts in Corning Bank and cashed the certificate of deposit for $23,192.53 for a total of $106,575.97 and placed it in a revocable living trust at Commerce Bank in Poplar Bluff, Missouri. Kay was the grantor and trustee, and Mrs. Duff was the life beneficiary of the trust. The funds in the trust were to be used for the care and support of Mrs. Duff during her lifetime. Funds remaining after her death were to be distributed to Kay as grantor. Kay paid Mrs. Duffs expenses from the trust account, including bills forwarded to her by Mrs. Duffs relatives. Kay also paid attorney fees from the trust to the attorney who drew up the trust instrument and later paid the attorneys who represented her in this case.

In this suit, the administrator of Mrs. Duffs estate claimed the money which had been placed in the trust was the property of her estate. The complaint alleged that the decedent was incompetent when the joint accounts were established, that there existed a fiduciary relationship between her and the appellant, and that by virtue of that relationship Kay held the funds in trust for the decedent. After a two-day hearing on the merits, the chancellor ruled that Kay should pay the estate of Eva Duff $106,575.97 plus interest, minus expenditures made from the funds on behalf of the decedent. The chancellor found that the provisions of Ark. Code Ann. § 23-32-1005 (1987) did not apply because the money had been withdrawn from the joint accounts. Thus, “any benefit or right created by statute and afforded a surviving joint tenant was terminated at the time Mrs. Nall [Kay] withdrew the funds and cashed the certificate of deposit.” The chancellor further found that Mrs. Duff was competent when she opened the joint accounts and purchased the certificate of deposit. We reverse and hold that the estate is not entitled to the money.

Appellant Kay Nall argues that the Chancellor erred in not applying the provisions of Ark. Code Ann. § 23-32-1005 (1987), the Accounts and Certificates of Deposits in Two or More Names Statute, to determine ownership of the joint bank accounts and the certificate of deposit. The argument is meritorious.

The introduction and subsection (1)(A) provide:

Checking accounts and savings accounts may be opened and certificates of deposit may be issued by any banking institution, or federally or state-chartered savings and loan association, in the names of two (2) or more persons, either minor or adult, or a combination of minor and adult. Checking accounts, savings accounts, and certificates of deposit shall be held and payable as follows.
(1) (A) Unless a written designation to the contrary is made to the banking institution or federally or state-chartered savings and loan association, when a deposit has been made or a certificate of deposit purchased in the names of two (2) or more persons and inform to be paid to any of the persons so named, or the survivors of them, the deposit or certificate of deposit and any additions thereto made by any of the persons named in the account shall become the property of those persons as joint tenants with right of survivorship.

(Emphasis added.)

Next, subsection (1)(B) provides:

(B) The deposit or certificate of deposit, together with all interest thereon, shall be heldfor the exclusive use of the persons so named and may be paid to any of those persons or to the survivors after the death of any of those persons. The payment shall be a valid and sufficient release and discharge of the bank or federally or state-chartered savings and loan association for all payments made on account of the deposit or certificate of deposit;

(Emphasis added.)

Subsections 2(A) (B) and (C) provide:

(2) (A) If the person opening the account or purchasing the certificate of deposit designated in writing to the banking institution or federally or state-chartered savings and loan association that the account or the certificate of deposit is to be held in “joint tenancy” or in “joint tenancy with right of survivorship,” or that the account or certificate of deposit and all additions thereto shall be the property of those persons as joint tenants with right of survivorship.
(B) The account or certificate of deposit may be paid to or on the order of any one (1) of those persons during their lifetime unless a contrary written designation is given to the banking institution or federally or state-chartered savings and loan association, or to or on the order of any one (1) of the survivors of them after the death of any one (1) or more of them.
(C) The opening of the account or the purchase of the certificate of deposit in this form shall be conclusive evidence in any action or proceeding to which either the banking institution or federally or state-chartered savings and loan association or the surviving party is a party of intention of all of the parties to the account or certificate of deposit to vest title to the account or certificate of deposit, and the additions thereto, in such survivor.

(Emphasis added.)

In Hall v. Superior Fed. Bank, 303 Ark. 125, 794 S.W.2d 611 (1990), we applied this section to determine the intent of the parties in establishing joint accounts with right of survivorship. There, we said that Ark. Code Ann. § 23-32-1005 (1987) applies to checking accounts, savings accounts, and certificates of deposit issued by a banking institution or a state-chartered savings and loan association. We held that the language of Ark. Code Ann. § 23-32-1005(2)(A) and (C), quoted above, is clear and provides conclusive evidence of the intention of the parties to create a joint tenancy with the right of survivorship when an account is opened in compliance with the provisions of these subsections. Likewise, in the present case, we find the provisions of Ark. Code Ann. § 23-32-1005(1)(B) and (2)(B), quoted above, are clear and establish the ownership rights of persons named in a joint account or certificate of deposit opened in compliance with the provisions of subsections (1)(A) or (2) (A).

When Eva Duff opened the checking accounts and purchased the certificate of deposit in her and Kay’s names, she designated in writing on the signature cards that the accounts were payable to the survivor. This is in compliance with the provisions of Ark. Code Ann. § 23-32-1005(1)(A) and (2)(A), under which the opening of an account or purchasing of a certificate of deposit in the name of two or more persons designating that the account or certificate of deposit shall be payable to the survivor of the persons named creates a joint tenancy with the right of survivorship. Subsections (1)(B) and (2)(B) provide that the account or certificate of deposit may be paid to any one of the persons named on the account during their lifetimes, unless a written designation is given to the contrary. The accounts and certificate of deposit at issue here contained no contrary designation. In fact, the signature cards for the money market checking account and the certificate of deposit specified that the funds on deposit could be paid to the persons named on the cards at any time and upon “a properly executed written order.” Thus, under the code, appellant had the right to withdraw the money from the accounts.

The right to withdraw money from a joint account is consistent with the ownership rights of a joint tenant at common law. in Ferrell, Adm’x v. Holland, 205 Ark. 523, 169 S.W.2d 643 (1943), we said:

Regarding some of the results of joint tenancy it is stated in 14 Am. Jur. 79: “An estate in joint tenancy is one held by two or more persons jointly, with equal rights to share in its enjoyment during their lives, and having as its distinguishing feature the right of survivorship or jus accrescendi, by virtue of which the entire estate, upon the death of any of the joint tenants, goes to the survivors.”
And further (P.82): “Accordingly, it is now generally recognized that there can be a joint tenancy in almost any kind of personal property . . . including [bank accounts,] building and loan association deposits ...”

Id. at 529-30, 169 S.W.2d at 647.

And in Miller v. Riegler, 243 Ark. 251, 419 S.W.2d 599 (1967), we said:

[ J] oint tenancy. . . ‘is a present estate in which both joint tenants are seized in the case of real property, per my et per tout,’ that is, such joint tenant is seized by the half as well as by the whole.. . . Inasmuch as both cotenants in a joint tenancy are possessors and owners per tout, i.e., of the whole, the title of the first joint tenant who dies merely terminates and the survivor continues to possess and own the whole of the estate as before.

Id. at 260, 419 S.W.2d at 604.

Thus, as an owner and possessor of the money in the accounts and certificate of deposit, as well as under the authority of the code, Kay had a right to withdraw the funds from the accounts and cash the certificate of deposit. Because she exercised her right of withdrawal under Ark. Code Ann. § 23-32-1005(1)(B) and (2) (B) completely consistent with the intentions of her competent joint tenant, Kay’s ownership of the proceeds from the joint accounts and certificate of deposit continues.

We are aware that there are past cases which seem to hold contrary to Hall v. Superior Fed. Bank, supra, with regard to the application of the banking statutes to determine the rights of parties to joint accounts. In Hayse v. Hayse, 4 Ark. App. 160-B, 630 S.W.2d 48 (1982), the Arkansas Court of Appeals noted our holding in Black v. Black, 199 Ark. 609, 135 S.W.2d 837 (1940) that the provisions of the banking statute sought to be applied were passed for the protection of the bank in which the deposit was' made. The statutory provisions did not determine the rights of the parties to the account. However, Hayse and Black did not involve the application of the newer Ark. Code Ann. § 23-32-1005 (1987).

In Courtney v. Courtney, 296 Ark. 91, 752 S.W.2d 40 (1988) , we held that Ark. Code Ann. § 23-32-1005(5) (1987) does not confer ownership or survivorship status on a party who otherwise would not have such status. There, the appellant relied upon the provisions of that code section to attempt to establish his joint tenancy in a checking account and a certificate of deposit when he could not rely upon the provisions of Ark. Code Ann. § 23-32- 1005(1)(A) to establish joint tenancy. The accounts in question had been opened before subsection (1)(A) became effective. We did, however, apply the provisions of subsection (1)(A) to establish joint tenancy in a certificate of deposit purchased after the effective date of that subsection.

On cross-appeal, the administrator of the estate argues that the Chancellor erred in approving the supersedeas. With the outcome of this case, it is a moot issue.

Reversed and remanded.


author: David Newbern, Justice.

text:
    Delbert Neil HELM v. MID-AMERICA INDUSTRIES, Inc.
    90-360
    804 S.W.2d 727
    Supreme Court of Arkansas
    Opinion delivered March 11, 1991.
    [Rehearing denied April 1, 1991.]

      John C. Everett, for appellant.

      Thompson and Llewellyn, by: Richard L. Spearman, for appellee.

      Brown, J., not participating.

   David Newbern, Justice.

Appellee Mid-America Industries, Inc., alleged that appellant Delbert Neil Helm fraudulently conveyed property to his wife and children in an attempt to avoid subjecting the property to execution of a judgment. The Chancellor set aside the conveyances and entered judgment against Helm’s wife, appellant Doris Helm, and children, appellants Donita, Paula and Jason Helm, for $20,500 which was the value of the land. The Helms contend the court should not have both set aside the conveyances and awarded damages against the grantees of those conveyances. They also argue it was error to set aside conveyances of land held by the entireties and that it was error to set aside the' conveyances without first finding Delbert Neil Helms, the judgment debtor, to be insolvent. We affirm the judgment in its entirety because none of the points argued on appeal were argued to the trial court.

Mid-America’s complaint sought in count two to have the conveyances set aside pursuant to Ark. Code Ann. § 4-59-207(a)(1) (1987). In count three, the complaint sought judgment, as permitted by Ark. Code Ann. § 4-59-208(b) (1987), against Doris Helm and the Helm children in the amount of the value of the land which had been conveyed to them. The statute does not require that these two forms of relief be sought in the alternative, and it was apparent from the outset that both were being sought.

The only objection to the judgment against the wife and children made at the hearing was that the children should not have judgment entered against them because the evidence did not show that they were aware of the reason for the conveyance. Nothing was said to the chancellor about the possibility that setting aside the conveyances to the children and to Doris Helm and then entering judgment against them might permit double recovery, which is argued on appeal.

We do not consider arguments made for the first time on appeal. Lovell v. Magnet Cove School Dist. No. 8, 301 Ark. 94, 782 S.W.2d 41 (1990); O’Bryant v. Horn, 297 Ark. 438, 669 S.W.2d 457 (1984); Shinn v. Shinn, 274 Ark. 237, 623 S.W.2d 523 (1981). As none of the arguments on appeal were presented to the chancellor, we must affirm the decision.

Affirmed.


author: Tom Glaze, Justice.

text:
    Karen McKINNEY v. G.A. McKINNEY
    90-199
    805 S.W.2d 66
    Supreme Court of Arkansas
    Opinion delivered March 11, 1991.

      Grif Stockely, by: Lynn Pence, for appellant.

      Steve Clark, Att’y Gen., by: John D. Harris, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Arkansas statutory laws provide for involuntary sterilization procedures on mental incompetents. Ark. Code Ann. § § 20-49-101 to -102, 20-49-201 to -207, and 20-49-301 to -304 (1987). Sections 20-49-201 to -207 set out one method that requires judicial oversight before such an involuntary sterilization on an incompetent can be performed. However, §§ 20-49-301 to -304 establish a second or alternative method that allows involuntary sterilization on incompetents through what is described as “direct medical channels” —■ a statutory procedure that provides no judicial oversight. In this law suit, appellant challenges this alternative method, claiming it violates appellant’s fundamental liberty or property interests guaranteed under the 14th Amendment. See Santosky v. Kramer, 455 U.S. 745 (1982); Matthews v. Eldridge, 424 U.S. 319 (1916); Buck v. Bell, 274 U.S. 200 (1927).

The state Attorney General’s office intervened in this cause, but does not argue that the alternative or “direct medical channels” procedure meets constitutional muster. In fact, the Attorney General, in a prior opinion dated April 30, 1986, indicated that this alternative sterilization method was constitutionally suspect. The state, instead, both below and on appeal, urges only that the appellant has no standing to raise the constitutional issue she argues in this case. We disagree, and hold the appellant not only has standing, but she also is correct in her claim that §§ 20-49-301 to -304 are unconstitutional.

A brief description of the facts and the procedures leading to this appeal is necessary. Appellant, an adult, initiated this action by filing a complaint and requesting a restraining order to prohibit her father, her legal guardian, from forcing her to undergo a non-judicial or direct medical channels involuntary sterilization procedure at a local hospital. Upon giving proper notice to the state Attorney General’s office, she requested the court to declare §§ 20-49-301 to -304 unconstitutional. The trial court issued a temporary restraining order against appellant’s father. It also subsequently approved and entered an order whereby the parties agreed that the father should be enjoined from having any contact with the appellant or from taking any actions to secure an involuntary sterilization procedure on her person. Following this so-called agreed order, the trial court dismissed the case, stating that the parties’ case had become moot and a “live controversy” was no longer presented to the court.

On appeal, the appellant, citing Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989), argues this court should not permit mootness to become determinant as to whether it rules on the merits of appellant’s constitutional argument, since this case could serve to avert future litigation, and it also involves a question of great public interest. Although we adhere to the rule that this court ordinarily does not decide cases that are moot, Logan v. State, 299 Ark. 550, 776 S.W.2d 327 (1989), we believe the situation here is a matter of sufficient importance that warrants our decision on the merits.

In support of our decision to decide this case on its merits, we point out that the involuntary sterilization procedure under attack here could only be initiated by appellant’s father, as her legal guardian. Appellant’s father answered his daughter’s complaint, denying he had ever sought her sterilization. Nonetheless, he later agreed to an order enjoining him from contacting his daughter for the purposes of initiating an involuntary sterilization. Of course, if that order was still in effect, one could argue the appellant is protected against her father’s future contacts and suggestions of sterilization. However, while both the appellant and the state in oral argument seem to surmise that the agreed restraining order signed by the trial court remains intact, we question the reliability of such a conclusion since the trial court later “dismissed this case” because of mootness. Of course, the significance of the trial court’s dismissal of the case bears directly upon whether appellant remains at risk to future contact and litigation since her father no longer appears to be enjoined from contacting her or from initiating involuntary sterilization. Our decision to decide this case on its merits could well avert such future litigation.

In addition to the foregoing, we also find merit in appellant’s argument that public interest requires this court to reach the constitutional question raised by appellant. The Supreme Court has said that the right to marriage and procreation are fundamental to the very existence and survival of the race, and the power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. Skinner v. Oklahoma, 316 U.S. 535 (1942). When confronted with a serious constitutional question bearing on one of Arkansas’s statutory schemes providing for involuntary sterilization, we are convinced that public interest dictates our consideration of that statutory law, especially when, by the Attorney General’s own admission, a serious question exists concerning that law’s constitutional validity. We recognize, too, that while appellant here obtained counsel who appropriately raised the constitutional question surrounding §§ 20-49-301 to -304, we can safely presume such an opportunity to test this constitutional issue is a rare one, since incompetents under those statutory provisions, are not given notice of their rights, afforded counsel, or offered an opportunity to be heard as to whether they should undergo sterilization.

In reaching appellant’s constitutional argument, we first note that the right of a state to sterilize retarded or insane persons was first upheld by the United States Supreme Court in Buck v. Bell, 274 U.S. 200 (1927). There, in upholding a Virginia sterilization law, the Court held that the state may provide for the sterilization of a feebleminded inmate of a state institution where it is found that she is the probable potential parent of socially inadequate offspring, and that she may be sterilized without detriment to her general health, and that her welfare and that of society will be promoted by her sterilization.

Since Buck, many states, including Arkansas, have passed sterilization laws. See In re Sterilization of Moore, 289 N.C. 95, 221 S.E.2d 307 (1976); Annotation, Validity of Statutes Authorizing Asexualization or Sterilization of Criminals or Mental Defectives, 53 A.L.R.2d 960 (1973). Some of these statutes have been declared unconstitutional because they failed to provide for notice and a hearing. Moore, 289 N.C. at 98, 221 S.E.2d at 309. Professor Clark has said that the mentally incompetent’s condition justifies a requirement of the utmost procedural protection for anyone subjected to involuntary sterilization. H. Clark, The Law of Domestic Relations § 5.2 (2nd ed. 1988). We certainly agree.

The statutory direct medical channels sterilization provisions questioned here, §§ 20-49-301 to -304, are first triggered by a mental incompetent’s parent or legal guardian. That parent or guardian can obtain sterilization on his or her child or ward by filing with an approved hospital the certificates of three doctors or medicine, reflecting that those doctors have examined the incompetent and a sterilizing procedure is justified. The sterilization may be consummated after the hospital’s sterilization committee reviews and approves the request. None of these statutory procedures mentions any notice to be provided an incompetent, any suggestion an incompetent is entitled to counsel, any opportunity for the incompetent to be heard as to the need for sterilization, or any right to cross-examine those seeking the incompetent’s sterilization. In sum, this procedure falls far short of the minimum requirements of procedural due process. See Matter of C.D.M., 627 P.2d 607 (Alaska 1981); In re Penny N., 414 A.2d 541 (N.H. 1980); see also 44 C.J.S. Insane Persons § 71 (1945).

For the above reasons, we hold §§ 20-49-301 to -304 unconstitutional and remand this cause with directions to enter an order consistent with this court’s opinion.


author: Per Curiam.

text:
    David DAVISON v. The Honorable Andre McNEIL Chancery Judge, Searcy County, Arkansas, 20th Judicial District
    90-280
    804 S.W.2d 369
    Supreme Court of Arkansas
    Opinion delivered March 11, 1991.

      David Davison, pro se.

      Karen J. Swogger, for appellee.
   Per Curiam.

On February 7,1991, David Davison filed an amended petition for a writ of prohibition to the Searcy Chancery Court enjoining that court from proceeding with a February 7, 1991, hearing. The petition alleges that this court had previously prohibited the chancellor from hearing a case styled Marilyn Davison (now Mason) v. David Davison as long as the case was removed to the United States District Court for the Western District of Arkansas. The amended petition alleged that the respondent chancery judge of Searcy County was proceeding irrespective of the temporary stay issued by this Court.

Exhibits to the response of Marilyn Davison Mason, filed February 19, 1991, reflect that by order of July 27, 1990, the United States District Court remanded the case to state court upon the failure of David Davison to amend his notice of removal within the eleven days allowed, noting that he failed to supply information as to whether the removal to federal court was timely. On August 28, 1990, a motion for reconsideration by David Davison was denied and on February 11,1991, the United States Court of Appeals for the Eighth Circuit dismissed Davison’s appeal as frivolous.

For the reasons stated, the amended petition for writ of prohibition and emergency Motion for Contempt are denied as moot and the temporary writ of prohibition is dissolved. Respondent’s prayer for sanctions pursuant to A.R.C.P. Rule 11 is denied.


author: Jack Holt, Jr., Chief Justice.

text:
    Fred KULBETH, Special Administrator of the Estate of Ivan C. Wright v. Pearl PURDOM and Bank of Rector, Rector, Arkansas
    91-29
    805 S.W.2d 622
    Supreme Court of Arkansas
    Opinion delivered March 18, 1991

      Shaver, Shaver & Smith, by: Tom B. Smith, for appellant.

      Snellgrove, Laser, Langley & Lovett, by: Stanley R. Langley, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves an appeal from a chancery court finding as to the title to property held pursuant to a joint tenancy with right of survivorship clause to a safe deposit box lease.

Ivan C. Wright died on April 28, 1988, and his estate was admitted to probate on May 5, 1988. An inventory of the safe deposit box that he leased with the appellee, Pearl Purdom, showed it to contain $266,150.00 in cash. Ms. Purdom asserted her right to the money through the joint tenancy agreement, and the estate of Ivan C. Wright claimed the money as an asset of the estate.

Mr. Wright’s heirs petitioned the Probate Court of Clay County to determine the ownership of the money. The probate judge opined that the contents of the safe deposit box were an asset of the estate and did not pass to Ms. Purdom as the surviving joint tenant. However, he charged the executor of the estate to “take action in the Chancery Court against Pearl Purdom to determine that the asset. . . is an asset of the estate, and does not pass to Pearl Purdom as a joint tenant with right of survivorship in the contents of the safety deposit box. . . .”

Suit was subsequently filed against Ms. Purdom in both probate and chancery courts, which suits were later consolidated in the chancery court proceeding. The chancellor determined that the money was not an asset of the estate and dismissed the suit.

The appellant, Fred Kulbeth, special administrator of the estate of Ivan C. Wright, appeals and alleges five points of error. None of Mr. Kulbeth’s claims have merit, and we affirm.

SUMMARY JUDGMENT

Mr. Kulbeth initially asserts that the trial court erred in its denial of his motion for summary judgment. However, the trial court reserved decision on the motion and did not render a ruling on the motion.

We have held that the burden of obtaining a ruling on a motion is upon the movant, and the failure to secure a ruling constitutes a waiver, precluding its consideration on appeal. Porter v. Lincoln, 282 Ark. 258, 668 S.W.2d 11 (1984). Accordingly, Mr. Kulbeth is precluded from raising this issue on appeal.

COLLATERAL ESTOPPEL AND RES JUDICATA

Next, Mr. Kulbeth contends that the doctrines of collateral estoppel and res judicata bar Ms. Purdom from recovery. Mr. Kulbeth is referring to the probate judge’s opinion that the contents of the safe deposit box were an asset of the estate.

Mr. Kulbeth asserted res judicata as a basis for his motion for summary judgment; he did not assert the doctrine of collateral estoppel. We have repeatedly stated that we will not consider arguments for the first time on appeal, Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990), and, as a result, will not discuss the collateral estoppel argument.

Res judicata is an affirmative defense and provides that a prior decree bars a subsequent suit when the subsequent case involves the same subject matter as that determined or which could have been determined in the former suit between the same parties; the bar extends to those questions of law and fact that might well have been, but were not, presented. The purpose of res judicata is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. Wells v. Heath, 269 Ark. 473, 602 S.W.2d 665 (1980).

Arkansas R. Civ. P. 8(c) addresses affirmative defenses and provides in pertinent part as follows:

(c) Affirmative Defenses. In responding to a complaint, counter-claim, cross-claim or third party claim, a party shall set forth affirmatively ... res judicata . . . and any other matter constituting an avoidance or affirmative defense. . . .

In this case, Mr. Kulbeth asserted res judicata in his motion for summary judgment; however, it was he who had filed the initial complaint, and he could not assert res judicata as an affirmative defense because he was not responding to a complaint, counter-claim, cross-claim, or a third party claim.

APPELLATE JURISDICTION

Mr. Kulbeth also argues that the chancery court does not have appellate jurisdiction over the probate court. It is certainly true that probate courts are superior courts within the limits of their jurisdiction and, where a probate court has jurisdiction of the subject matter, its judgment, although erroneous, is conclusive so long as it is not reversed; the judgment cannot be collaterally attacked. Brown v. Kennedy Well Works, Inc., 302 Ark. 213, 788 S.W.2d 948 (1990).

Here, however, the probate court expressly reserved the question of the ownership of the money as one to be decided by the chancery court. We have held that questions expressly reserved by a decree are not concluded thereby. Sulcer v. Northwestern Nat’l Ins. Co., 263 Ark. 583, 566 S.W.2d 397 (1978) (citing Randolph v. Nichol, 74 Ark. 93, 84 S.W. 1037 (1905)). The chancery court did not exercise appellate jurisdiction in deciding the case before it because the question had not been resolved.

SAFE DEPOSIT BOX

Mr. Kulbeth claims in his fourth point of error that the contents of the safe deposit box belong to the estate of Ivan C. Wright.

Mr. Wright bequeathed Ms. Purdom $100,000.00 in his will. Mr. Kulbeth now asserts that Mr. Wright’s will provision controverts the joint tenancy with right of survivorship clause that he executed with Ms. Purdom relating to the contents of the safe deposit box.

In Newton County v. Davison, 289 Ark. 109, 709 S.W.2d 810 (1986), we announced that it was our intention to:

. . .require an affirmative showing that the owner of a lock box intended to give the contents of the lock box to another. Such an intention cannot be demonstrated without a specific written reference to the disposition of the contents of a lock box and is not indicated by an agreement only to rent the box in two or more names with a right of survivorship.

We held in Newton that the agreement between the parties as to their lease of a safe deposit box as joint tenants with right of survivorship was only for the rental of the safe deposit box and not for the disposition of its contents. In that case, the only reference to the joint tenancy agreement was the typewritten words “joint tenancy with right of survivorship” after the names of the lessees of the safe deposit box.

To the contrary, the joint tenancy provision in this case states as follows:

JOINT TENANCY
In addition to agreeing to the foregoing provisions of safe deposit box lease which are hereby made a part of this paragraph, the undersigned agree that each, or either of them is joint owner of the present and future contents of said box and said Bank is hereby authorized to permit access to said box by either of the undersigned and that in the event of the death of either of the undersigned the survivor shall have the right to withdraw said contents and upon said withdrawal said Bank shall be automatically relieved of any further obligation or responsibility to the heirs, legatees, devisees or legal representatives of the deceased. Receipt is hereby acknowledged of 2 keys to said box.
Accepted: THE BANK OF RECTOR, RECTOR, ARK.
By s/Sherry Dills 4/1/87
s/Ivan C. Wright
s/Pearl Purdom

The joint tenancy provision is separated from the body of the safe deposit box lease by demarcation lines and highlighted in bold, capitalized print. The clause clearly and unequivocally denotes a joint tenancy agreement with right of survivorship between the lessees as it contains specific references to the joint ownership of the contents of the box and the right of withdrawal of the contents after the death of either party.

Accordingly, Mr. Wright’s written intent to give the contents of the safe deposit box to Ms. Purdom complies with the standard required in Newton County v. Davison, supra, of an affirmative showing as to the disposition of the contents of the safe deposit box, and the inventoried money from Mr. Wright’s and Ms. Purdom’s safe deposit box is, therefore, not an asset of Mr. Wright’s estate.

Consequently, we need not discuss Mr. Kulbeth’s remaining point of error that the trial court erred in allowing oral testimony to interpret Mr. Wright’s intent on the basis that it was inadmissible hearsay, or Ms. Purdom’s conditional cross-appeal against the appellee, Bank of Rector.

Affirmed.


text:
    Jeffrey MORRIS, et al. v. VALLEY FORGE INSURANCE COMPANY
    90-185
    805 S.W.2d 948
    Supreme Court of Arkansas
    Opinion delivered March 18, 1991

      Gary Eubanks & Assoc., by: Hugh F. Spinks and James Gerard Schulze, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P. A., by: GailK. Ponder, for appellee.
   Jack Holt, Jr., Chief Justice.

This case concerns legal malpractice insurance coverage wherein the appellants, Jeffrey Morris and James Mays, appeal from a grant of summary judgment in favor of Mays’ insurance carrier, the appellee, Valley Forge Insurance Company (Valley Forge). The trial court held that Mays’ policy with Valley Forge afforded no coverage for a legal malpractice judgment obtained against him by Morris. Since we find remaining issues of material fact, we reverse the trial court’s decision and remand the case for trial.

Mays was an attorney practicing in Little Rock who represented Morris in a divorce action. The two were also friends and business associates in various investment ventures. Mays sold a motel, owned by his company, the Mays-Connealy Corporation, to JWM Investment Enterprises, Inc. (JWM), a company owned by Morris. Mays did not inform Morris that the property was already encumbered by a substantial lien, nor did he provide clear title upon Morris’ completion of purchase payments, as he had promised. The bank foreclosed on the motel, and Morris lost both the property and his investment.

Morris brought suit in Pulaski County Circuit Court against Mays, individually and as a principal of the Mays-Connealy Corporation, alleging legal malpractice, fraud, and breach of contract. The claims against the corporation and all allegations of fraud and breach of contract were dropped during trial, however, and the case was submitted to the jury on the single issue of negligent malpractice against Mays. The jury returned a verdict in favor of Morris for the amount of his investment in the motel. Valley Forge provided a defense for Mays in that action, under a reservation of rights.

Following judgment, Valley Forge filed an action for declaratory relief in Jefferson County Circuit Court, contending that the policy issued to Mays did not provide coverage for the judgment. Valley Forge then filed a motion for summary judgment, specifically alleging: 1) that Mays’ acts and omissions resulting in the loss to Morris were not done in the performance of legal services, as required by the policy; 2) that even if legal services were rendered, coverage was excluded under the exception for “any dishonest, fraudulent, criminal or malicious act or omission of the insured;” 3) that Mays’ acts fell within the exclusion for professional services rendered for a business owned by the insured; and 4) that Mays’ acts fell within the exclusion for performance of professional services as an attorney and an officer, director, employee or trustee of a business.

After consideration of the pleadings, to which portions of the testimony at the previous trial were attached, depositions, briefs, and oral arguments of counsel, the trial court granted the motion, holding that Mays’ conduct “did not constitute performance of professional services as a lawyer” and that such conduct “fell within policy exclusions.”

We agree with the appellants that the exclusions and policy provisions relied on by Valley Forge, and presumably upon which the trial court based its decision, involved questions of fact and summary judgment was improper.

PERFORMANCE OF PROFESSIONAL SERVICES

The trial court first erred in finding, as a matter of law, that the motel transaction did not amount to professional services rendered by Mays as Morris’ attorney.

The policy provided that Valley Forge agreed:

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages:
1. arising from the performance of professional services for others in the insured’s capacity as a lawyer, real estate title insurance agent or notary public because of an act or omission of the insured or of any other person or firm for whose act or omission the insured is legally responsible ....

Morris contended throughout the trial that the motel transaction came about as the result of Mays’ representation and advice during his divorce. Morris, who was living in Pine Bluff when the divorce proceedings first began, testified that Mays recommended he move to Little Rock so that Mays could better represent him. Also at Mays’ suggestion, Morris formed a corporation, JWM, in an attempt to shield assets from his wife. The purchase of the motel was further recommended by Mays as a way to generate income and conserve assets.

Mays denied that the discussion concerning the sale of the motel occurred in any context other than between friends mutually interested in a business investment. Valley Forge further points to Morris’ testimony where he conceded that he wasn’t “relying on Mays as his attorney” when Mays drew up the papers for the sale. Valley Forge argues that a distinct line may be drawn between Mays’ representation and advice in the context of Morris’ divorce, and Mays’ conduct in the actual property transaction. The line is a dubious one and, at best, presents a question of fact.

Summary judgment, like a mistrial, is an extreme remedy and should only be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 5(c); Guthrie v. Kemp, 303 Ark. 74, 793 S.W.2d 782 (1990). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Any doubts and inferences must be resolved against the moving party. Guthrie v. Kemp, supra.

Morris repeatedly testified that he entered into the purchase on the direct advice of Mays in connection with his divorce. Such a relationship would impose a fiduciary duty on Mays to disclose the existence of the lien and to recommend to Morris that he seek independent counsel. See Model Rules of Professional Conduct 8.1 (1985). (The jury, at the trial on this matter, received instructions on negligent legal malpractice and obviously recognized the existence of the attorney-client relationship, and Mays’ corresponding duties, since it rendered a verdict against him.)

We note that the trial court, in its order, stated that the facts concerning Mays’ conduct were “well known as there [had] already been a full trial with regard to Mays’ liability to Morris,” and that the only remaining issues were whether those facts fell within policy coverage or exclusion. This finding is erroneous, however, since the established facts before the court were in dispute. Although our decision here may result in a retrial of essentially the same facts, the specific issues of policy coverage must be determined by a jury or trier of fact as the facts deciding those issues remain in conflict.

DISHONEST OR FRAUDULENT ACTS EXCLUSION

Summary judgment on the basis of the policy’s exclusion for “dishonest, fraudulent, criminal, or malicious” acts or omissions was also improper.

Proof of fraud requires a showing of five elements: 1) a false representation of a material fact; 2) knowledge or belief on the part of the person making the representation that the representation is false; 3) an intent to induce the other party to act or refrain from acting in reliance on the misrepresentation; 4) a justifiable reliance by the other party; and 5) resulting damages. Brookside Village Mobile Homes v. Meyers, 301 Ark. 139, 782 S.W.2d 365 (1990).

Again, the testimony in the depositions and at trial creates factual questions as to whether Mays actually intended to defraud Morris and to induce his reliance on the acts and omissions at issue.

The facts not in dispute show that Morris’ company, JWM, paid the Mays-Connealy Corporation $100,000 for a lease with an option to purchase the motel. The total purchase price was listed at $175,000. As stated earlier, Mays did not inform Morris of an approximate $80,000 lien on the property. Morris later exercised his option to purchase and paid, through JWM, $35,000 toward the purchase price. Upon Morris’ discovery of the existence of the lien, Mays told Morris that if he would pay the balance of the purchase price ($40,000) he would deliver title. Morris paid the balance, but Mays never delivered title, and the bank foreclosed on the motel.

What remains in dispute is whether Mays’ failure to deliver clear title was fraudulent or dishonest. Mays’ testimony at trial on this issue is sufficient to create a genuine issue of material fact. The following exchange occurred on direct examination:

Q: What was your position in December of 1984, Jim, about whether your corporation was required to deliver a deed to Mr. Morris’ corporation?
A: It was my belief that, technically, it was not necessary to do so, but if he were to pay me his half of what we were losing in M & M that I’d take that and pay off the mortgage that was there and deliver one to him.
Q: In other words, if you received the money from the telethon, you would use it to extinguish the lien at Worthen.
A: That’s right.
Q: And deliver the deed.
A: That’s correct.
* * * *
Q: Was there any time when you formed any intent not to pay off the mortgage at Worthen Bank and deliver a deed, if you had the money to do it.
A: I always intended to do that.
* * * *

This testimony, at the least, compels a consideration of appellants’ argument that Mays never intended to permanently withhold delivery of title but, rather, hoped to pay off the lien from the profits of another investment thereby enabling him to give clear title. Any question of credibility is solely for the trier of fact to resolve. Weber v. Bailey, 302 Ark. 175, 787 S.W.2d 690 (1990).

As to Mays’ failure to inform Morris of the lien, Mays testified that he thought no more about the lien than on any other occasion where he had rented out an apartment and there was a lease on the building. This precludes a determination that Mays possessed a fraudulent or dishonest intent as a matter of law. Furthermore, an attorney’s failure to disclose the existence of a lien to his client, without proof of actual fraud or dishonesty, implicates only “constructive fraud.”

We have defined constructive fraud as “c breach of legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law [declares] fraudulent because of its tendency to deceive others . . . Neither actual dishonesty of purpose nor intent to deceive is an essential element.” (Emphasis added.) Davis v. Davis, 291 Ark. 473, 725 S.W.2d 845 (1987) (quoting Lane v. Rachel, 239 Ark. 400, 389 S.W.2d 621 (1965)). It has been held that policy exclusions for “fraudulent acts” should not include constructive fraud or acts or omissions which are deemed fraudulent only because they constitute a breach of fiduciary obligations. See R. Mallen and J. Smith, Legal Malpractice, § 28.19 (1989). See also Perl v. St. Paul Fire & Marine Ins. Co., 345 N.W.2d 209 (Minn. 1984) where the court held that an attorney’s failure to inform his client of his business relationship with an insurance adjuster, with whom he was negotiating on the client’s behalf, constituted only constructive fraud, thus making the policy’s fraud exclusion inapplicable. “Since much of an attorney’s practice involves fiduciary duties, to exclude such conduct from an attorney’s liability policy would eviscerate the policy coverage.” Id. at 213.

Surely Valley Forge did not intend to exclude coverage for a breach of fiduciary duty without a showing of intentional wrongdoing, which, as we stated, presents a factual issue.

BUSINESS EXCEPTIONS

Lastly, summary judgment should not have been granted on the basis of the policy exclusion concerning an “owned business,” or the exclusion concerning an attorney’s activities as an officer, director, employee, or trustee of a business enterprise.

The “owned business” exclusion provides that the policy will not cover:

* * * *
B. the performance of professional services for a business enterprise not named in this policy, owned by an insured or their spouse, a business enterprise in which an insured or their spouse is a partner, or a business enterprise which is controlled, managed or operated by an insured or their spouse.

The other business exclusion denies coverage for:

C. a claim arising out of the insured’s activities as a lawyer and:
1. an officer, director, employee or trustee of a business enterprise not named in this policy, charitable organization, or a pension, welfare, profit-sharing, mutual or investment fund or trust. . .
unless such entity is a client of the insured and the claim relates solely to such lawyer/client relationship.

The pivotal question with regard to both of these exclusions is whether Mays was acting in the interests of the Mays-Connealy Corporation when he arranged the sale of the motel. We agree with the appellants that although the facts, on the surface, appear to fit within the language of these exclusions, the application of the exclusion depends on the real nature of the transaction. Was Mays acting on behalf of his company or was he arranging a deal for Morris as his attorney, or both?

A determination of whether Mays was acting “for” the Mays-Connealy Corporation, and whether the claim “arose out of’ his connection with that company, turns on the credibility of Morris’ testimony that the whole transaction would not have occurred but for Mays’ professional advice in connection with the divorce, versus the credibility of Mays’ testimony that he “assumed” he was representing his company in drafting the lease papers. This is a matter for a trier of fact.

We have said that exclusionary clauses in insurance policies are strictly interpreted, and all reasonable doubts are resolved in favor of the insured. Southern Title Ins. Co. v. Oller, 268 Ark. 300, 595 S.W.2d 681 (1980). Again, we find that factual issues remain as to Mays’ acts in connection with his company and that summary judgment in favor of Valley Forge on the basis of either of these exclusions was, therefore, improper.

For the foregoing reasons, we reverse and remand for trial.

Brown, J., not participating.


author: Robert H. Dudley, Justice. Steele Hays, Justice,

text:
    Gari WEST and Larry West v. SEARLE & COMPANY, G.D. Searle & Company, and Seale Phamaceuticals, Inc.
    90-49
    806 S.W.2d 608
    Supreme Court of Arkansas
    Opinion delivered March 18, 1991
    [Rehearing denied April 29, 1991.]

      David Hodges and Josh McHughes, for appellant.

      Friday, Eldredge & Clark, by: Elizabeth J. Robben, for appellee.

      Brown, J., not participating.

   Robert H. Dudley, Justice.

Appellants, Gari and Larry West, filed a products liability suit against appellees, Searle & Co., G.D. Searle & Co., and Searle Pharmaceuticals, Inc. In their complaint the Wests pleaded that Gari’s use of Ovulen-28, a birth control medication, caused her to develop a hepatic adenoma, or a benign liver tumor, which eventually ruptured and caused a life’ threatening situation. The complaint next recites by conclusory, not factual, allegations, or issue pleadings, that the oral contraceptive was defectively designed and manufactured; that the appellee drug companies were negligent in warning of the danger of the drug; and that the product breached the warranty of fitness. Recovery was asked upon the theories of strict liability, negligence, and breach of warranty. The Wests’ complaint additionally alleged that the product was designed, manufactured, and delivered by the appellees. After limited discovery, the appellee drug companies filed a motion for summary judgment. The trial court granted the motion. We affirm in part, as modified, and reverse in part the order granting summary judgment.

We do not address the eight points of appeal, and numerous sub-points, in the order they are argued. Instead, we divide the opinion into two main categories and address the points in that manner.

I. Negligence and Breach of Warranty

The trial court granted summary judgment on those counts of the complaint, among others, that alleged negligence and breach of warranty. However, neither side addressed those counts in the motion for summary judgment or the response. There were no affidavits, counter-affidavits, or other proof on those counts. They were wholly ignored by both sides. Obviously, the trial court should not have ruled that there was no genuine issue of material fact on those particular counts. Even so, we will sustain a trial court’s ruling if it reached the right result, even though it announced the wrong reason. Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983). The trial court reached the right result on those counts because they do not state facts upon which relief can be granted. They give “issue notice” but not “factual notice.” We require factual pleadings, not notice pleadings. ARCP Rule 8; Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981).

Summary judgment may be granted on pleadings, Joey Brown Interest, Inc. v. Merchants Nat’l Bank, 284 Ark. 418, 683 S.W.2d 601 (1985), and that should have been done here. However, summary judgment based upon a failure to state a claim upon which relief can be granted is different from a summary judgment based upon a lack of disputed material facts, which results in a party’s entitlement to the judgment as a matter of law. The first is the failure to state a claim, the second is the failure to have a claim. Id. When summary judgment is granted upon failure to have a claim, and the ruling is affirmed on that basis, the matter is ended with prejudice. Id. However, when summary judgment is granted in the trial court because of failure to have a claim, but is affirmed on the basis of failure to state a claim, we modify to make the dismissal without prejudice in order to afford the plaintiff-appellant a chance to plead further. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984); ARCP Rule 12(j). Accordingly, we affirm the trial court’s granting of the motion for summary judgment on the counts alleging negligence and breach of warranty, but modify it to dismiss without prejudice in order to afford the plaintiff-appellant a chance to plead further.

II. Strict Liability

A. Defective Manufacture and Inadequate Warning

The trial court also granted summary judgment on the count of the complaint alleging strict liability. Again, the plaintiff-appellant did not plead facts upon which relief can be granted.

In order to state a cause of action under the strict liability theory, the plaintiff must plead (1) that he has sustained damages; (2) that the defendant was engaged in the business of manufacturing, or assembling, or selling, or leasing, or distributing the product; (3) that the product was supplied by the defendant in a defective condition which rendered it unreasonably dangerous; and (4) that the defective condition was a proximate cause of plaintiffs damages. Ark. Code Ann. §§ 16-116-101 to -107 (1987); E.I. DuPont De Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).

Generally speaking, there are three varieties of product defects: manufacturing defects, design defects, and inadequate warnings. Feldman v. Lederle Laboratories, 97 N.J. 429, 479 A.2d 374, 385 (1984). Here, the plaintiff-appellant did not plead facts sufficient to state a cause of action for defective manufacture of the product or inadequate warning. Accordingly, we treat these counts just as we did the counts on negligence and breach of warranty and affirm the granting of summary judgment, but modify it to a dismissal without prejudice in order to afford appellant a chance to plead further.

B. Defective Design

Similarly, the plaintiff-appellant neither factually pleaded that there was a defect in the design of the drug, nor gave an affidavit in opposition to the motion for summary judgment. Of course, an argument can be made that this count should be treated the same as the previously discussed counts have been treated. However, there is a distinguishing factor. On this count, strict liability for defective design, the appellee drug companies pleaded that they were protected by the “unavoidably unsafe product” defense as set out in comment k to § 402A of the Restatement (Second) of Torts. This constituted a tacit admission by the appellees that the complaint stated a cause of action in strict liability for negligent design. The appellees’ pleadings and proof in support of their motion went to whether they were entitled to a summary judgment because of their defense. Accordingly, basic fairness and the appellee drug companies’ waiver of appellants’ failure to state the cause of action, necessitate that we address this issue, and, on it, we hold that the trial court erred in granting summary judgment.

1. Unavoidably Unsafe Product

The “unavoidably unsafe product” defense contained in comment k to § 402A of the Restatement (Second) of Torts provides in full:

Unavoidably unsafe products. There are some products which, in the'present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.

Comment k represents a judgment that some products, such as certain prescription drugs, are so beneficial to society that their manufacturer should not be held strictly liable if the products are properly prepared and are accompanied by adequate warnings. See Note, Hill v. Searle Laboratories: The Decline of the Learned Intermediary Doctrine in Favor of Direct Patient Warnings of Drug Product Risks, 43 Ark. L. Rev. 821 (1990). Policy justifications for the comment k exception have been described as follows:

Dean Prosser stated an important justification for exempting prescription drugs from strict liability:
The argument that industries producing potentially dangerous products should make good the harm, distribute it by liability insurance, and add the cost to the price of the product, encounters reason for pause, when we consider that two of the greatest medical boons to the human race, penicillin and cortisone, both have their dangerous side effects, and that drug companies might well have been deterred from producing and selling them.
Comment k reflects the concern of American Law Institute members that large monetary judgments would deter drug manufacturers from undertaking research programs to develop socially beneficial pharmaceuticals. Therefore, the adoption of comment k was motivated by the fear that large judgments would increase the costs of beneficial and necessary drugs beyond the reach of the people who need them.

(Footnotes omitted.) Note, Hill v. Searle Laboratories: The Decline of the Learned Intermediary Doctrine in Favor of Direct Patient Warnings of Drug Product Risks, 43 Ark. L. Rev. 821 (1990).

Although this court has never formally adopted comment k into our case law, we do so now, based upon the policy considerations set out above. We are aware of only one court that has declined to adopt comment k. See Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984). Our choice to adopt the comment does not end the matter, however, but rather requires a second decision: Whether to apply it to all prescription pharmaceutical products, as California did in Brown v. Superior Court, 44 Cal. 3d 1049, 751 P.2d 470, 245 Cal. Rptr. 412 (1988), or to apply it as an affirmative defense requiring proof that the drug product is indeed unvoidably dangerous.

The California court’s policy decision, to apply the comment k defense to all pharmaceutical products is well summarized in the case note, Hill v. Searle Laboratories: The Decline of the Learned Intermediary Doctrine in Favor of Direct Patient Warnings of Drug Product Risks, 43 Ark. L. Rev. 821 (1990), and may be reviewed there as well as in the case itself.

On the other hand, a majority of jurisdictions interpret the comment to constitute an affirmative defense. See Hill v. Searle Laboratories, 884 F.2d 1064 (8th Cir. 1989) for a listing of those cases. We adopt this second view because of the wording of the comment itself and because it is the better public policy. In reading the comment it is obvious that the drafters did not intend to grant all manufacturers of prescriptive drugs a blanket exception to strict liability. As pointed out by the Supreme Court of Idaho, in Toner v. Lederle Laboratories, 112 Idaho 328, 732 P.2d 297 (1987):

[C]omment [k] refers to “some” products which are unavoidably unsafe; the comment states such products are “especially common in the field of drugs;” the comment cites certain examples from that field deserving of its protection and notes that “ [t] he same is true of many other drugs . . . [and in particular] many new or experimental drugs. . . .” Obviously, the comment does not apply to all drugs.

This plain meaning is emphasized by the fact that a blanket exception was proposed, but rejected, at the American Law Institute meeting when section 402A and comment k were adopted. 38 A.L.I. Proc. 19, 90-98 (1961). Further, by its wording, the comment applies only to those products which supply a special social need. The last sentence of the comment discusses supplying “the public with an apparently useful and desirable product. . . .”

In order for this affirmative defense to apply, the designer of the drug must show that the product is “unavoidably unsafe.” Necessarily then, there must be no feasible alternative design which accomplishes the product’s purpose at lesser risk. The evaluation of a purported alternative design and the product’s actual design should focus on: (1) the magnitude of the product’s risk that the alternative avoids; (2) the costs of the two designs; (3) the benefits of the two designs; and (4) the relative safety of the two designs. See Toner v. Lederle Laboratories, 112 Idaho 328, 732 P.2d 297 at 306 (1987).

In addition, for the comment to protect the designer of the product, the benefit of the product must outweigh the risk. This weighing process must consider the value of the benefit, the seriousness of the risk and the likelihood of both. See Toner v. Lederle Laboratories, supra, at 306. However, in the weighing process it should be remembered that comment k only requires that the balance “apparently” tip toward the benefit of a product at the time of distribution. See last sentence of comment k.

As mentioned previously, but its terms comment k exempts unavoidably unsafe products from strict liability only where the plaintiff alleges a design defect, but it does not offer protection from allegations of manufacturing flaws or inadequate warnings.

In the case at bar, the trial court either determined that comment k applied to all prescription pharmaceuticals, or it determined that there was no genuine issue of any material fact, that is, that the drug at issue met a special social need, that there was no feasible alternative, that the drug was unavoidably unsafe, and that the benefits of the drug outweighed the risks. We must reverse on either basis. As previously set out, (1) we reject the point of view that all prescription pharmaceuticals are covered by the comment, and (2) in this case, there is a genuine issue of fact as to whether the drug is “unavoidably unsafe.” The appellee drug companies’ proof did not meet all of the required criteria to show that Ovulen-28 was an unavoidably unsafe drug. Thus, the trial court erred in ruling that the drug companies’ comment k defense entitled them to a summary judgment on the issue of negligent design. Accordingly, the matter must be reversed and remanded.

2. Warning of Danger

There is a second, but equally important factor concerning applicability of the comment k defense: Whether there was an adequate warning of danger. Such a warning must be proved before a judgment is granted on the basis of the affirmative defense set out in comment k. The seller of a product proven to be “unavoidably unsafe” is not held to strict liability for the unfortunate consequences of its use when the product is “accompanied by proper directions and warning” and “proper warning is given.” See comment k. The first issue then is, how is a proper warning given?

As a general rule, a manufacturer has a duty to warn the ultimate user of the risks of its product. This duty exists under either the negligence or strict liability theories. An almost universally applied exception to this general rule is known as the learned intermediary doctrine. Note, Hill v. Searle Laboratories: The Decline of the Learned Intermediary Doctrine In Favor of Direct Patient Warnings of Drug Product Risks, 43 Ark. L. Rev. 821 (1990); Comment, The Impact of Product Liability Law on the Development of a Vaccine Against the AIDS Virus, 55 U. Chi. L. Rev. 943, 958, n. 68 (1988). This doctrine provides that a drug manufacturer may rely on the prescribing physician to warn the ultimate consumer of the risks of a prescription drug. The physician acts as the “learned intermediary” between the manufacturer and the ultimate consumer. There are a number of arguments supporting the application of this exception to prescription drug products. They may be summarized as: First, a physician must prescribe the drug, the patient relies upon the physician judgment in selecting the drug, and the patient relies upon the physician’s advice in using the drug. That is to say that there is an independent medical decision by the learned intermediary that the drug is appropriate. Second, it is virtually impossible in many cases for a manufacturer to directly warn each patient. Third, imposition of a duty to warn the user directly would interfere with the relationship between the doctor and the patient. Hill v. Searle Laboratories, 884 F.2d 1064 (1989); In re Certified Questions, 419 Mich. 686, 358 N.W.2d 873, 878 (1984). Note, Hill v. Searle Laboratories: The Decline of the Learned Intermediary Doctrine In Favor of Direct Patient Warnings of Drug Product Risks, supra.

A minority of courts have rejected the learned intermediary doctrine in cases involving oral contraceptives. All three of these cases were decided under Massachusetts and Michigan law. MacDonald v. Ortho Pharmaceuticals, 394 Mass. 131, 475 N.E.2d 65, cert. denied 474 U.S. 920 (1985); Odgers v. Ortho Pharmaceutical Corp., 609 F. Supp. 867 (E.D. Mich. 1985); and Stephens v. G.D. Searle & Co., 602 F. Supp. 379 (E.D. Mich. 1985). The basis of these decisions was that a patient chooses to take an oral contraceptive, and the prescribing physician plays only a passive role. The Massachusetts court wrote:

Whereas a patient’s involvement in decision-making concerning use of a prescription drug necessary to treat a malady is typically minimal or nonexistent, the healthy, young consumer of oral contraceptives is usually actively involved in the decision to use “the pill,” as opposed to other available birth control products, and the prescribing physician is relegated to a relatively passive role.

(Footnotes omitted.)

In a case involving the CU-7, a prescription intra-uterine device (IUD), the Eighth Circuit predicted that this court would adopt a somewhat modified approach to the learned intermediary doctrine: “Our view of prescription drugs and the learned intermediary rule is that Arkansas would adopt the test set forth on the issue of adequate warning in Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir. 1974).” Hill v. Searle Laboratories, 884 F.2d 1064, 1070 (8th Cir. 1989). As the Eighth Circuit explained, the Reyes test is “that there must be either a warning [to the ultimate user] — meaningful and complete so as to be understood by the recipient — or an individualized medical judgment that this treatment or medication is necessary and desirable for the patient.” Id. In other words, under Reyes the mere fact that a prescription drug or device is involved does not automatically invoke the learned intermediary doctrine; there must be an intervening, individualized medical judgment. For example, in Reyes a mass immunization program with a polio vaccine was at issue. The Reyes court determined that because there was no individualized, medical judgment exercised in that situation, the learned intermediary doctrine would not apply, even though a prescription drug was involved.

Here, however, it is not necessary to decide whether we will follow the Eighth Circuit’s prediction that we will adopt the Reyes test because we are convinced that the stated public policy reasons for the learned intermediary doctrine are present with respect to oral contraceptives. For example, the patient would normally make the initial choice about birth control but, after that, the physician would exercise his medical judgment concerning the best method of contraception for his patient. In this case, for instance, the physician chose an oral contraceptive, Ovulen28, because it contained the proper estrogen dosage for appellee Gari West. The doctor was fully aware of the risks associated with the drug and considered those risks in periodically renewing the prescription for her. Moreover, Gari West relied on his advice that the drug was the most suitable for her. Accordingly, application of the learned intermediary rule is appropriate in the case of oral contraceptives.

Here, the trial court applied the learned intermediary rule, but also held that there was no issue of any material fact, and that as a matter of law, the appellee drug companies’ warning to the prescribing physician was proper.

We must reverse that ruling because of a procedural matter which may be summarized as follows: In his deposition the prescribing physician referred to warnings contained in the Physician’s Desk Reference. However, those warnings were not identified by the doctor and were not properly made a part of the deposition. The drug companies’ attorney subsequently filed copies of warnings contained in the Physician’s Desk Reference. The plaintiff, Gari West, moved that the copies of the warnings be stricken. The trial court should have stricken the warnings, see ARCP Rule 56(e), but did not do so, and considered the warnings as evidence in making his ruling. That was error. Even so, the drug companies argue that it was a harmless error because we can take judicial notice of the Physician’s Desk Reference. They cite Edwards v. Sec. of Dept. of Health & Human Serv., 572 F. Supp. 1235 (1983) as an example. It is not subject to reasonable dispute that the Physician’s Desk Reference is a reference book supplied to physicians throughout the United States to advise them as to the pharmacological actions of the drug they intend to prescribe. It is a manual found in physicians’ offices, pharmacies, and attorneys’ offices, and it is universally recognized as having reasonably indisputable accuracy. Thus, under A.R.E. Rule 201, judicial notice of the book might be taken for some purposes. In addition, judicial notice may be taken at the appellate level as well as the trial level. See A.R.E. Rule 201(f).

However, we decline to take judicial notice of the warnings. We are not certain that the attachment warnings are of the same date as those to which the physician referred. Consequently, we must reverse the trial court’s ruling that the drug companies’ warning to the prescribing physician was proper.

Affirmed in part, as modified, and reversed and remanded in part, with the trial court to proceed in a manner consistent with this opinion.

Hays, J., dissents.

Brown, J., not participating

Steele Hays, Justice,

dissenting in part. I would apply the comment k defense to all prescription drugs so long as the drug is properly manufactured and accompanied by warnings of any dangerous propensities which are known or reasonably knowable at the time of distribution. First, it would facilitate the research, development and marketing of potentially beneficial new drugs. Second, the case by case approach of the majority will not give clear guidelines to drug manufacturers — one drug may receive the protection of comment k while another may not, and, equally undesirable, a manufacturer may be held strictly liable in one locale but not in another. Third, there is no feasible method to determine which drugs are extremely beneficial and which are not. Drug manufacturers should not be exposed to strict liability under conditions which would clearly have a chilling effect on the development of new medications.

In sum, I would adopt the view of the Supreme Court of California in its well reasoned opinion of Brown v. Superior Court, 44 Cal. 3d 1049, 751 P.2d 470 (1988).


author: Steele Hays, Justice.

text:
    Joel S. GIFFORD, Jr. v. ESTATE OF Mary Ella GIFFORD, Deceased
    90-292
    805 S.W.2d 71
    Supreme Court of Arkansas
    Opinion delivered March 18, 1991

      Paul Petty and Robert Meurer, for appellant.

      Lightle, Beebe, Raney, Bell and Hudgins, by: Robert Hudgens, for appellee.
   Steele Hays, Justice.

The question for decision is whether a memorandum in the handwriting of the testatrix was incorporated into her will by reference. The probate judge found that it was. We sustain that finding.

Mary Ella Gifford died on February 26,1989. Mrs. Gifford’s daughter, Julia Gifford Haines, proffered four instruments as the decedent’s last will and testament: a two page handwritten note dated January 1980, another handwritten note, also in two pages, dated June 1986; a typewritten will dated July 2, 1986; and a typewritten codicil dated November 21,1986. The probate judge accepted all four as constituting the last will of Mrs. Gifford. By this appeal, Mrs. Gifford’s son, Joel S. Gifford, Jr., challenges only the admission of the January 1980 memorandum.

Appellant maintains the January 1980 note was not incorporated by reference into his mother’s will and that she intended to revoke the bequests made in the note. Gifford argues it was her intent for her estate to be distributed in accordance with the June 1986 note, the will and the codicil.

While we review probate matters de novo, we will not reverse the findings of probate courts unless clearly erroneous. Mangum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990). In the interpretation of wills the cardinal principle is that the intention of the testatrix governs. In re Estate of Conover v. Mobley, 304 Ark. 268, 801 S.W.2d 299 (1990). That intention is to be gathered from the “four corners” of the instrument and by giving meaning to the provisions in their entirety, if possible. Id. Thus we look to the relevant portions of all four writings to determine whether Mrs. Gifford intended the January 1980 note to be a part of her will.

The incorporating language of the will reads as follows:

Having survived my husband, Joel S. Gifford, Sr., and being mindful of his desires, it is my intention herein to equally divide our properties which passed to me at his death in equal shares to our beloved children.
I first direct my Executrix hereinafter appointed to carry out the provisions of the handwritten bequest, which I have attached hereto and which was prepared by me in June of 1986, relative to items of personal property, which I want each of the children to receive.
Secondly, I give, devise and bequeath all the rest, residue and remainder of my estate, whether real, personal or mixed, to my said children, Julia M. Gifford Haines and Joel S. Gifford, Jr., share and share alike. If either of them, however, shall predecease me, then the share herein devised to them shall go to their children and likewise in equal shares.

The codicil, executed some five months later, has the identical provision except that it contains four specific bequests: $5,000 to Mrs. Gifford’s former daughter-in-law, $2,000 to the First United Methodist Church of Rose Bud, $500 to the Baptist Church of Rose Bud and $500 to Ouachita Baptist University.

Ark. Code Ann. § 28-25-107 (1987) provides that any writing in existence when a will is executed may be incorporated by reference if the will’s language manifests such interest and describes the writing sufficiently to identify it. The writing must either be in the handwriting of the testator or be signed by her and must describe the items and devisees with reasonable certainty.

It is undisputed that the June 1986 writing was incorporated by reference and while the January 1980 note is not specifically identified in the will, it was in existence when the will was executed, and is unmistakeably connected to the 1986 writing. The two writings are physically attached to the will itself and their combined four pages are numbered by page, 1, 2, 3 and 4. Pages 1 and 2 are the 1980 memorandum and pages 3 and 4, the 1986 memorandum. Both deal with various items of personalty, primarily household and personal effects, and are clear and specific as to item and devisee. Moreover, the 1986 writing specifically refers to “earlier lists of 1973,1976and 1980,” noting that some items might be duplicated on the several lists. The June 1980 note bears the caption, “1st section of bequests 1973, 1976 & 1980,” removing any doubt that the 1986 note refers to the January 1980 note. Both notes are entirely in Mrs. Gifford’s handwriting and conclude with her signature. That, plus their physical attachment to the will, their pagination and the express allusion of one to the other satisfies us entirely that the probate judge ruled correctly.

Nor are we persuaded by the argument that language in Mrs. Gifford’s will revoking “all wills and codicils heretofore made by me at any time,” operates to nullify the 1980 note. It would strain the common understanding of those words to label the 1980 memorandum a “will” or a “codicil” and such a rationality would stigmatize the 1986 memorandum as well. We regard the revocation clause, which is incorporated in wills almost by rote, as having reference to formal testamentary instruments, as opposed to the types of writings likely to be incorporated by reference.

Finding no merit in the points argued for reversal, we affirm the order appealed from.

Holt, C.J., and Brown, J., not participating.