text:
    Melissa HOLCOMB v. R.F. HOLCOMB
    97-972
    966 S.W.2d 257
    Supreme Court of Arkansas
    Opinion delivered April 9, 1998

      Tom F. Donovan, for appellant.

      Boyce R. Davis, for appellee.
   Per Curiam.

Appellee R.J. Holcomb, by and through his attorney Boyce R. Davis, moves for dismissal of the above-captioned appeal from an order entered by the Washington County Probate Court on March 21, 1997, and an order overruling reconsideration entered on April 28, 1997. The cause involves the guardianship of two minor children, Ryan Mart Holcomb and Zachary Alexander Holcomb. Appellant Melissa Holcomb, the children’s natural mother, filed notice of this appeal on both May 27, 1997, and again on July 3, 1997.

In support of his motion to dismiss, Appellee states that on January 5, 1998, the parties agreed to a settlement pursuant to a November 12, 1997 hearing. The settlement agreement included, inter alia, dismissal of this appeal. Appellee attached the trial court’s January 5, 1998 order to his motion for dismissal. He attached the transcript of the November 12, 1997 hearing to his first amended motion for dismissal filed on March 25, 1998. Appellee alleges that Appellant failed to initiate dismissal of the appeal as stipulated in the agreement between the parties.

Appellant, by and through her attorney Tom F. Donovan, argues that we should deny this motion because Donovan was not a party to the January 5, 1998 agreement, having entered his first appearance for Appellant on March 31, 1997. Attorney James Hornsey, who represented Appellant at the November 12, 1997 hearing, signed the January 5, 1998 agreement for Appellant. In support of her argument to deny the motion for dismissal, Appellant alleges that significant issues of law remain to be decided, and further, that the trial court lost jurisdiction in this case after notice of this appeal was filed, thereby voiding all subsequent orders by the probate court.

We reinvest jurisdiction in the probate court in order for that court to resolve the issue of the January 5, 1998 agreement between the parties. We further remand this case in order for the probate court to resolve the conflicting allegations of the parties and to decide any remaining issues of fact and law. Gullett v. Gullett, 251 Ark. 497, 473 S.W.2d 180 (1971); McCluskey v. Kerlen, 4 Ark. App. 334, 631 S.W.2d 18 (1982).

Motion granted; appeal dismissed; case remanded.

Glaze, J., would submit and ask for briefs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jason Mark SMITH v. STATE of Arkansas
    CR 98-329
    962 S.W.2d 813
    Supreme Court of Arkansas
    Opinion delivered April 9, 1998

      Joel O.Huggins, for appellant.
    No response.
   Per Curiam.

Appellant Jason Mark Smith, by and through his attorney, has filed a motion for a rule on the clerk. His attorney, Joel O. Huggins, states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional conduct.


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

text:
    James RHODES v. STATE of Arkansas
    97-868
    967 S.W.2d 550
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998

      Bill Luppen, for appellant.

      Winston Bryant, Att’y Gen., by: Mac Golden, Asst. Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

This is an interlocutory appeal filed by appellant James Rhodes from the Pulaski County Circuit Court’s denial of his motion to transfer his criminal case to juvenile court. Jurisdiction is properly before this court pursuant to Ark. Sup. Ct. Rule 1-2(11) (1997) as the record in this appeal was lodged before September 1, 1997, the effective date of our appellate jurisdiction rule change. See In Re: Supreme Court Rule 1-2, 329 Ark. 656 (per curiam). We affirm the trial court’s decision.

On February 21, 1997, appellant and Damien Deshun Brown were charged by felony information with aggravated robbery and theft of property. The charges stemmed from the December 16, 1996, robbery of the Maple Street Grocery Store in Little Rock. We affirmed the denial of Brown’s motion to transfer his case to juvenile court in Brown v. State, 330 Ark. 518, 954 S.W.2d 276 (1997). The appellant was seventeen-years-old at the time of the commission of the offenses, and just nine days short of his eighteenth birthday when his transfer motion was denied by the trial court on April 25, 1997. The appellant’s date of birth is May 4, 1979. Thus, he is now almost nineteen years old.

At appellant’s transfer hearing, Detective Jeff Norman of the Little Rock Police Department testified that the appellant and two other subjects entered the store on the date in question. One of the suspects had a gun and threatened to shoot a store employee if he did not open the cash register. The employee was so nervous that he was unable to open the register. After two of the suspects were unable to open the cash register themselves, they grabbed a box of candy bars and a package of cigarettes then fled on foot. Appellant and Brown were apprehended in the area shortly after the robbery. The store employee identified the appellant as the person who had held the gun on him. Appellant admitted his involvement in the robbery to Detective Norman, confirming that he had held the gun on the employee.

Appellant’s mother, Mary Rhodes, also testified at the hearing. She related that her son had a prior history in juvenile court. Specifically, her son had been placed on probation for theft of property on September 12, 1996. One week after the appellant was placed on probation, a pick-up order and petition for revocation of his probation were filed. After the appellant tested positive for drugs, he was sent to Recovery Way in Oklahoma.

In determining whether a criminal case should be transferred to juvenile court, the trial court must conduct a hearing and consider the following factors under Ark. Code Ann. § 9-27-318(e) (Supp. 1995):

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that a juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Though the trial court must consider all of the factors listed above, it is not required to give them equal weight. Thompson v. State, 330 Ark. 746, 958 S.W.2d 1 (1997); Fleetwood v. State, 329 Ark. 327, 947 S.W.2d 387 (1997); Olgesby v. State, 329 Ark. 127, 946 S.W.2d 693 (1997). A decision to try the juvenile as an adult must be supported by clear and convincing evidence. Id. We will not reverse the trial court’s decision in this regard unless it is clearly erroneous. Id.

In making his argument that the trial court erred in denying his motion to transfer his case to juvenile court, the appellant claims that, although the evidence demonstrated that he was in possession of a handgun, there was no evidence presented that anyone was injured by Brown or by him. However, no actual injury need occur if the offense is serious and violent. Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996). We have held that aggravated robbery is a serious and violent offense. Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996).

Appellant further claims that he has completed a drug recovery program and has made A’s and B’s in training school, demonstrating that he is not beyond rehabilitation. His argument ignores the serious nature of the crime of aggravated robbery, and the evidence of the use of violence in the commission of this offense. Given the presence of these two factors, we have often declined to hold that a trial court was clearly erroneous in denying transfer. See Toliver v. State, 330 Ark. 488, 953 S.W.2d 887 (1997)(collecting cases). Detective Norman’s testimony demonstrated that appellant participated in a serious offense and that he held the victim at gunpoint. Moreover, Ms. Rhodes’s testimony confirmed that the appellant had a prior history of criminal acts, from which the trial court could have rightfully concluded that the appellant had participated in a repetitive pattern of adjudicated offenses showing that he was beyond rehabilitation. Finally, the appellant is now almost nineteen years of age. We have repeatedly held that young people over the age of eighteen can no longer be committed to the Division of Youth Services (DYS) for rehabilitation unless they are already committed at the time they turn eighteen. Rhodes had not been committed to DYS. See Brown v. State, supra; Maddox v. State, 326 Ark. 515, 931 S.W.2d 438 (1996); Ark. Code Ann. § 9-28-208(d) (Supp. 1995). For all of the foregoing reasons, we conclude that the trial court’s decision to deny appellant’s motion to transfer his charges to juvenile court was supported by clear and convincing evidence.

Affirmed.


author: David Newbern, Justice.

text:
    Pamela F. SKOKOS v. Theodore C. SKOKOS
    95-1029
    968 S.W.2d 26
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998
    [Opinion on granting of rehearing issued June 4, 1998. ]

      Henry Hodges; and Robinson, Staley & Marshall, by: Robert L. Robinson Jr., for appellant.

      Dover & Dixon, P.A., by: Philip E. Dixon; and Dodds, Kidd, Ryan & Moore, by: Judson C. Kidd, for appellee.
   David Newbern, Justice.

Pamela F. Skokos, the appellant, filed a complaint for divorce against Theodore C. Skokos, the appellee, on June 1, 1993. Custody and property issues were litigated before Chancellor Alice Gray in hearings that were protracted and acrimonious. The final decree, entered on March 30, 1995, granted a divorce to Ms. Skokos, awarded custody of the parties’ minor child to Mr. Skokos, and divided property. Prior to the entry of the decree, while the case was pending in the Chancery Court, the parties brought matters before this Court for resolution. See Skokos v. Gray, 318 Ark. 571, 886 S.W.2d 618 (1994) (denying Ms. Skokos’s petition for writ of certiorari to disqualify Chancellor Gray, Mr. Skokos’s attorney, and attorney ad litem); Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995)(affirming in part and reversing in part on Ms. Skokos’s counsel’s interlocutory appeal from contempt citations).

Following entry of the final decree, Ms. Skokos filed on August 14, 1995, a motion to vacate the judgment under Ark. R. Civ. P. 60. Ms. Skokos was unable to obtain a hearing and ruling on the Rule 60 motion, and she appealed to this Court and asked that the case be remanded for the adjudication of that motion. We granted her request in Skokos v. Skokos, 322 Ark. 563, 909 S.W.2d 653 (1995). Ms. Skokos again moved that we disqualify Chancellor Gray, who, in her response to Ms. Skokos’s motion, announced her decision to recuse. We accepted Chancellor Gray’s recusal and assigned Chancellor Jim Flannah to preside on remand. Chancellor Hannah held a hearing on Ms. Skokos’s Rule 60 motion and denied it in an order filed on July 17, 1996.

Ms. Skokos now appeals from the final decree entered by Chancellor Gray and the order entered by Chancellor Hannah denying her motion to set aside the decree.

In seeking reversal of the decree, Ms. Skokos first argues that the Chancellor erroneously determined that the Skokoses had made an effective gift of three of their residences, held as tenancies by the entirety, to “qualified personal residence trusts” and that the residences were owned by the trusts, rather than the Skokoses, and thus were not subject to division under Ark. Code Ann. §§ 9-12-315 and 9-12-317 (Repl. 1993 and Supp. 1997). Second, she argues that the Chancellor undervalued the Skokoses’ shares in two cellular-telephone companies as a restilt of erroneous evidentiary rulings excluding expert testimony offered by Ms. Skokos and limiting her cross-examination of Mr. Skokos’s expert witness. Third, Ms. Skokos argues that the Chancellor erred in rejecting her claim of entitlement to a “surcharge” or “reimbursement” for allegedly “improper” payments made by Mr. Skokos with marital funds. Fourth, she argues that Chancellor Gray erred by refusing to recuse.

Ms. Skokos further asserts that the judgment should have been vacated or set aside under Ark. R. Civ. P. 60(c)(4) on account of what she views as “extrinsic fraud” practiced upon the Chancery Court by one of Mr. Skokos’s trial counsel and the attorney ad litem appointed to represent the minor child. Ms. Skokos does not seek reversal of Chancellor Gray’s custody ruling or maintain that she is entitled under Rule 60 to relief from that part of the judgment granting her a divorce and vesting Mr. Skokos with custody of the minor child.

Mr. Skokos urges an affirmance on these points but maintains as a preliminary matter that Ms. Skokos waived her right to bring this appeal when she accepted over $6 million in cash or other assets that Mr. Skokos conveyed to her in accordance with the property division prescribed by Chancellor Gray’s decree.

We conclude that some, but not all, of Ms. Skokos’s arguments have merit. Thus, we affirm the decree in part and reverse it in part and remand the case for further proceedings consistent with this opinion.

1. Waiver of appeal

As to Mr. Skokos’s assertion that Ms. Skokos waived her right to appeal when she accepted over $6 million in cash and other assets provided in the decree, we hold that he waived his right to contend the appeal is barred. We do conclude that Ms. Skokos is barred from appealing from the ruling made on her request that the decree be set aside pursuant to Rule 60, as that was not included in the waiver.

An appellant “waives his right to an appeal by accepting a benefit which is inconsistent with the claim of right he seeks to establish by the appeal.” Shepherd v. State Auto Property & Cas. Ins. Co., 312 Ark. 502, 509, 850 S.W.2d 324, 327 (1993), quoting Bolen v. Cumby, 53 Ark. 514, 515, 14 S.W. 926, 927 (1890). See also Jones v. Rogers, 222 Ark. 523, 525, 261 S.W.2d 649, 650 (1953) (stating “when an appellant accepts a portion of a challenged order inconsistent with his appeal, he thereby waives his appeal”). No doubt Ms. Skokos’s acceptance of benefits from some portions of the decree would bar her appeal but for the agreement entered between her and Mr. Skokos to the contrary.

The agreement at issue here was signed by Henry Hodges, counsel for Ms. Skokos, and Judson C. Kidd, counsel for Mr. Skokos. The agreement is contained in the following letter, dated April 13, 1995, from Mr. Hodges to Mr. Kidd:

HAND DELIVERED
Dear Jud:
This will confirm our various discussions concerning your delivery of checks, stock certificates, and other property pursuant to the Court’s Decree entered March 30, 1995. It is understood and agreed that Pam is accepting these funds and these properties subject to a reconciliation of the accounting ordered to be furnished by Mr. Skokos and, of course, subject to her right to appeal the Decree. In other words, it is understood there is no prejudice to Pam’s right to appeal and Pam’s right to be furnished an accounting that is acceptable according to the terms of the Decree.
Kind regards,
/s/ Henry
Henry Hodges
[Emphasis added]
The following appears below Mr. Hodges’s signature:
ACCEPTED AND AGREED TO:
/s/ Judson C. Kidd
Judson C. Kidd

Although we are aware of no case on point, we can conceive of no reason to reject the position that an appellee may, as Mr. Skokos has done in part, “waive” his right to declare a waiver of appeal on the part of an appellant. Thus, an appeal should not be dismissed where, as here, the appellant has acted in reHance upon the appellee’s promise that her acceptance of payment under the judgment will not prejudice her right to appeal.

Mr. Skokos contends, however, that the agreement merely conferred on Ms. Skokos the right to question a forthcoming accounting of Mr. Skokos’s expenditure of marital funds during the pendency of the divorce action and did not confer the right to appeal the decree. Mr. Skokos asserts, in the alternative, that the agreement is ambiguous and, in accordance with Don Gilstrap Builders v. Jackson, 269 Ark. 876, 601 S.W.2d 270 (Ark. App. 1980), should be construed against Ms. Skokos, the drafter. Mr. Skokos claims that he would not have made any payment to Ms. Skokos under the decree “if he had thought [Ms. Skokos] was reserving a right to appeal to force him to make even more payments.”

As we read the agreement “and consider it from its four corners, as we must, its terms appear clear and unambiguous.” Barton v. Sturgis, 224 Ark. 924, 927-28, 278 S.W.2d 114, 117 (1955). The agreement clearly and unambiguously states that Ms. Skokos would accept payment from Mr. Skokos subject to her right to an accounting and her right to appeal the decree. It is our duty to construe these unambiguous terms “according to the plain meaning of the language employed,” Roth v. Prewitt, 225 Ark. 466, 469, 283 S.W.2d 155, 157 (1955); see Unigard Security Ins. Co. v. Murphy Oil USA, Inc., 331 Ark. 211, 221, 962 S.W.2d 735, 740 (1998), and thus we hold that the agreement permits Ms. Skokos to appeal the decree in spite of her acceptance of benefits under it. Mr. Skokos’s assertion that the agreement means anything else is, at best, facetious.

Whether the agreement permits Ms. Skokos to appeal from Chancellor Hannah’s order denying relief under Rule 60 is a different matter. The agreement was signed on April 13, 1995, well before the filing of the Rule 60 motion on August 14, 1995, and the filing of Chancellor Hannah’s order on July 17, 1996. By its terms, the agreement allows Ms. Skokos to appeal only the “decree.” The agreement does not contemplate post-decree motions. Nothing in the text of the agreement expressly discusses, let alone permits, an appeal from a ruling on any type of post-decree motion. The parties could have included language permitting such an appeal had they chosen to do so.

Accordingly, we hold that the “right to appeal the decree” conferred on Ms. Skokos by the agreement does not encompass the right to appeal the order denying her motion under Rule 60 to vacate the judgment. As Ms. Skokos’s acceptance of over $6 million under the judgment is inconsistent with her argument that the judgment should be vacated under Rule 60, we conclude the point is waived.

2. Personal residences

The Skokoses acquired three personal residences during their marriage — #10 Edgehill Road in Little Rock, and 131 Hosta Bay and 1519 Long Point Lane in Hot Springs. Each was held by them as tenants by the entireties. The Chancellor found that they were not marital property at the time of the divorce because the Skokoses had conveyed them to qualified personal residence trusts (“QPRTs”) after agreeing between themselves to do so. The QPRTs were created apparently for the purpose of avoiding taxation (i.e., estate planning) but to maintain family control of the residences.

Joe Gelzine, an attorney who drafted the QPRT documents, testified that the device creates three interests in the property thus conveyed: (1) a reversionary interest in the grantor, (2) a possessory interest in the grantor, and (3) a contingent remainder interest in beneficiaries of the trust. The grantor to a QPRT can end the trust, forfeiting the tax benefits, and thus obtain his or her reversionary interest.

The evidence was conflicting as to whether Mr. or Ms. Skokos was the prime mover in setting up the QPRTs. We do know, however, that while Mr. Skokos was away, participating in the Desert Storm operation in 1991, Ms. Skokos, with Mr. Gelzine’s help, quitclaimed her interest in the Edgehill residence to the Skokos family trust of which Mr. Skokos was trustee. As Mr. Skokos’s attorney in fact, she likewise quitclaimed his interest to the family trust. By special warranty deed, Mr. Skokos thereafter conveyed the Edgehill property to himself, individually, and then he conveyed the property to the QPRT by special warranty deed, also signed by Ms. Skokos. A similar transaction occurred with respect to the Hosta Bay property. The Skokoses’ two children were the contingent remaindermen named in these trusts.

Mr. and Ms. Skokos conveyed the Long Point Lane property by quitclaim deed to Ms. Skokos, individually, and she then conveyed it by special warranty deed to herself as trustee of a QPRT. The contingent remainderman was Dr. Kemp Skokos, Theodore Skokos’s brother. Ms. Skokos’s deposition testimony indicated that the gift to Kemp Skokos was made in gratitude for assistance (presumably financial) he had given as the Skokoses entered the cellular- telephone business.

Pursuant to these arrangements, Mr. Skokos, as grantor, retained a 25-year possessory interest in the Edgehill and Hosta Bay properties, and Ms. Skokos retained a 15-year possessory interest in the Long Point Lane property. Ms. Skokos lost her possessory interests in the Edgehill and Hosta Bay residences and was compensated for them in the divorce decree. The parties, however, were not required to account for the value of the reversionary interests they retained in those properties.

Ms. Skokos contends the conveyances to the QPRTs should be set aside because she was overreached by a “dominant spouse” in creating them. See Shipp v. Bell, 256 Ark. 89, 505 S.W.2d 509 (1974). There was evidence that Ms. Skokos is a college-educated person who sold real estate for a time and was thus at least somewhat familiar with property transactions, having been a “million dollar club” salesperson. The Skokoses’ son, who was a law student when the QPRTs were created, recalled his mother discussing the trusts and acknowledging their effects with some concern over what might happen should she and Mr. Skokos ever divorce. Mr. Skokos is an attorney, and thus perhaps obviously more knowledgeable about such transactions than Ms. Skokos, but he contends that he had not heard of the QPRT idea before he left the country, that he was gone in 1991 when Ms. Skokos began the process, and that it was her idea to do so.

It is enough to say that, where there is a factual dispute about the conditions surrounding the making of a deed, the determination by the Chancellor, whose job it is to assess the credibility of the witnesses, Lawson v. Lawson, 226 Ark. 643, 291 S.W.2d 518 (1956), will not be reversed unless it is clearly erroneous, Calvin v. Calvin, 308 Ark. 109, 823 S.W.2d 843 (1992), or unless it is clearly against the preponderance of the evidence, Weber v. Weber, 256 Ark. 549, 508 S.W.2d 725 (1974), viewing the evidence in the light favorable to the appellee. Dennis v. Dennis, 239 Ark. 384, 389 S.W.2d 631 (1965). We must remand the case, however, for reconsideration of distribution of the parties’ interests in the marital residences, not for any further consideration of the validity or effectiveness of the QPRT instruments and preceding conveyances, but because the reversionary interests that were created and acquired by the parties during the marriage were clearly marital property, see Ark. Code Ann. § 9-12-315(b) (Repl. 1993), and those reversionary interests were erroneously not considered in the distribution of the marital property.

3. Shares in cellular-telephone companies

Ms. Skokos asserts that the Chancellor’s determination of the fair market value of the parties’ shares in two cellular-telephone companies should be reversed on account of erroneous evidentiary rulings concerning the testimony of expert valuation witnesses. We agree that at least one of the rulings at issue constituted an abuse of discretion, requiring reversal.

Toward the end of their marriage, Mr. and Ms. Skokos acquired minority interests in two cellular-telephone companies. Using marital funds, they acquired a 49.99-percent interest in the Atlantic Cellular/New Hampshire RSA One, Limited Partnership (“the New Hampshire company”), and a 10.35-percent interest in the Little Rock Cellular Partnership (“the Little Rock company”). The Little Rock company apparendy does business under the name of “Litde Rock Cellular One.” Title to the two blocks of shares was held by other companies owned solely by Mr. Skokos, but the parties agree that the shares at issue are marital property.

Mr. and Ms. Skokos agreed that the Chancellor should determine the fair market value of the shares and that Mr. Skokos would pay Ms. Skokos one half of the determined value and retain sole ownership of the shares.

Ms. Skokos first presented expert testimony from Steven Schroeder regarding the value of the shares in both the New Hampshire company and the Little Rock company. Mr. Schroeder opined that the parties’ shares in the New Hampshire company were worth $9 million, after applying a 20-percent “minority discount,” and that their shares in the Little Rock company were worth $7.4 million, after applying a 30-percent “minority discount.” Mr. Schroeder’s written appraisal was admitted into evidence.

Ms. Skokos then sought to introduce expert testimony from Matthew Fox on the value of the parties’ shares in the New Hampshire company. Mr. Fox was prepared to testify that those shares were worth between $8.6 million and $11.6 million and that the value of the shares should not be subjected to a “minority discount.” Mr. Fox also would have challenged some of the views expressed by Thomas Buono, Mr. Skokos’s expert'witness, in his appraisal. Chancellor Gray, however, prohibited Ms. Skokos from introducing Mr. Fox’s testimony and his written appraisal.

Mr. Skokos presented expert testimony from Mr. Buono and introduced his written appraisal into evidence. Mr. Buono testified that the value of the parties’ 49.99-percent interest in the New Hampshire company was $7.58 million before consideration of any “discounts.” Mr. Buono then applied a 55-percent “lack of marketability” discount, and a 15-percent “lack of control” discount, to arrive at an assessment of $2.9 million for the value of the parties’ shares in the New Hampshire company.

Mr. Buono testified that the “pre-discount” value of the parties’ shares in the Little Rock company was $6,076 million. He then applied a 45-percent “lack of marketability” discount, and a 20-percent “lack of control” discount, to arrive at an assessment of approximately $2.67 million for the value of the parties’ shares in the Little Rock company.

Mr. Buono testified that the values he assigned to each block of shares might be subject to further “capital call” adjustments.

Counsel for Ms. Skokos cross-examined Mr. Buono for some period of time, but his examination was terminated when Chancellor Gray interrupted it and allowed Mr. Buono to leave the courtroom in order to board an airline flight. Thereafter, Ms. Skokos recalled Mr. Schroeder and presented his testimony in rebuttal to Mr. Buono’s.

In her final decree, Chancellor Gray indicated that she found Mr. Buono’s “analyses and conclusions” to be “entitled to more weight and credibility” than those of Mr. Schroeder. The Chancellor accepted Mr. Buono’s assessment of $2.9 million for the value of the parties’ 49.99-percent interest in the New Hampshire company but subtracted $199,000, which represented the “outstanding capital call.” The final value of these shares, according to the Chancellor, was approximately $2.7 million, and she ordered Mr. Skokos to pay half of that amount, or $1,350,500, to Ms. Skokos. The Chancellor also accepted Mr. Buono’s assessment of $2,673,440 for the value of the parties’ 10.35-percent interest in the Litde Rock company. The Chancellor made no “capital call” adjustments to this figure, and she ordered Mr. Skokos to pay half of the above amount, or $1,336,720, to Ms. Skokos. Thus, the Chancellor determined that Ms. Skokos’s interest in the shares of both companies was worth $2,687,220, and Ms. Skokos accepted payment in this amount from Mr. Skokos following entry of the final decree.

Ms. Skokos now maintains that the Chancellor abused her discretion when she prohibited Mr. Fox from testifying and later terminated Ms. Skokos’s counsel’s cross-examination of Mr. Buono. We agree with Ms. Skokos with respect to the exclusion of Mr. Fox’s testimony. A closer question is presented with respect to the cross-examination of Mr. Buono, but we need not address it in view of our holding that the exclusion of Mr. Fox’s evidence will require a new hearing on this point.

Chancellor Gray declined to allow Mr. Fox to testify as an expert because she believed he had a “conflict of interest.” The conflict, according to the Chancellor, was based upon his employment as a vice president at Stephens, Inc., which owns a substantial amount of stock in the Alltel company, a competitor of Little Rock Cellular One. The Chancellor indicated that, on account of these factors, she “would have reason to question [Mr. Fox’s] impartiality.” Counsel for Ms. Skokos further suggested at trial that Mr. Fox should be prohibited from testifying on account of a separate “conflict” based on an unrelated lawsuit filed by Mr. Skokos against Stephens, Inc., and other parties. In her ruling excluding Mr. Fox’s testimony, however, the Chancellor did not mention that argument.

The Chancellor clearly erred in determining that Mr. Fox had a “conflict of interest” that rendered his expert testimony inadmissible per se. There is no dispute that Mr. Fox’s involvement in this case was limited to reviewing information about the New Flampshire company and preparing an assessment of the Skokoses’ 49.99-percent interest in that company. It is undisputed that the New Hampshire company has nothing to do with the Little Rock cellular-telephone market and does not compete with Alltel or any other entity in which Mr. Fox’s employer, Stephens, Inc., has an interest. It also is undisputed that Mr. Fox had no occasion to review confidential financial records of the Little Rock company and that Mr. Fox would not have given an opinion as to the value of the parties’ 10.35-percent interest in that company. Mr. Fox’s testimony that he did not know much about the litigation between Mr. Skokos and Stephens, Inc., and had only read about the matter in the newspaper, was likewise unrefuted.

There is nothing in the record to suggest Mr. Fox had a conflict of interest that prevented him from giving an expert opinion on the value of the Skokoses’ shares in the New Hampshire company. Nor do we agree that, if indeed he could have been considered biased, he should necessarily have been disqualified. See DF&R Corp. v. American Intern. Pacific Industries Corp., 830 F. Supp. 500, 504-05 (D. Minn. 1993) (holding that evidence of “a conflict of interest or bias” was insufficient to warrant exclusion of expert witness’s affidavit). See, e.g., Senff v. Estate of Levi, 515 N.E.2d 556, 559 (Ind.App. 1987)(stating “a bias or sentiment is not sufficient to cause a witness to be incompetent”); Satterthwaite v. Estate of Satterthwaite, 420 N.E.2d 287, 290 (Ind.App. 1981), citing 97 C.J.S. Witnesses § 168; Sumter County v. Pritchett, 186 S.E.2d 798, 802 (Ga.App. 1971)(“A mere personal interest or bias does not render the witness incompetent to testify.”); Crier v. Marquette Cas. Co., 159 So.2d 26, 29 (La. App. 1964)(“Interested persons are competent witnesses . . . .”).

We also disagree with the contention that Mr. Fox’s testimony might properly have been excluded as “cumulative” under Ark. R. Evid. 403. The Chancellor suggested that Ms. Skokos “would not be prejudiced” by her ruling excluding Mr. Fox’s testimony as to the value of the Skokoses’ shares in the New Hampshire company because Ms. Skokos had already presented Mr. Schroeder’s testimony on that issue. Chancellor Gray appeared skeptical of Ms. Skokos’s claim that she needed “two experts to testify to the value of the same cellular entity.”

According to Ark. R. Evid. 403, relevant evidence may be excluded if its probative value is substantially outweighed by “considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” We have compared the testimony of both witnesses, and it does not appear the witnesses were so similar in their credentials, opinions, and approaches to the valuation question that the introduction of Mr. Fox’s testimony would have amounted to a “needless presentation of cumulative evidence.” Rule 403 (emphasis added).

4. Surcharges

Ms. Skokos asserted at trial that she was entitled to be reimbursed for one half of the allegedly “improper” payments made by Mr. Skokos with marital funds both before and after Ms. Skokos filed her complaint for divorce. The Chancellor determined the payments at issue were not improper and denied Ms. Skokos’s request for a “surcharge” or reimbursement. Ms. Skokos argues on appeal that this determination was clearly erroneous and should be reversed. We affirm on this point.

In a divorce action, a spouse may recover his or her interest in marital property that the other spouse has transferred if the latter made the transfer for the purpose of defrauding the former of his or her interest in the property. Pierson v. Barkley, 253 Ark. 131, 133, 484 S.W.2d 872, 873 (1972); Dowell v. Dowell, 207 Ark. 578, 182 S.W.2d 344 (1944).

In Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1975), the wife was granted a divorce but appealed the Chancellor’s division of property. We reversed and remanded, in part, because the Chancellor had faded to make an award to the wife for personal property that her husband had fraudulently transferred. We said that

there was a preponderance of the evidence to show that there was a wrongful disposition of personal property by appellee to defeat appellant’s marital interest and that it was error for the court to refuse to consider or make any order concerning items removed by appellee. An extensive enumeration of these items was made by appellant and it was not substantially contradicted. See Carr v. Carr, 226 Ark. 355, 289 S.W.2d 899. See also, Austin v. Austin, 143 Ark. 222, 220 S.W. 46; Wilson v. Wilson, 163 Ark. 294, 259 S.W. 742.

Ramsey v. Ramsey, 259 Ark. at 23, 531 S.W.2d at 33. See also Hardy v. Hardy, 228 Ark. 991, 995, 311 S.W.2d 761, 763-64 (1958) (“A husband has the right to make a transfer of his property, either with or without consideration, even though he strips himself of all means of supporting his wife, and leaves her without the means of subsistence, provided that he does so in good faith and without intention of defrauding her of her just claims upon him and his estate.”)(citation omitted).

On appeal, Ms. Skokos argues that she is entitled to be reimbursed for one half of each of three particular transfers that, in her view, were improperly made by Mr. Skokos. She claims she is entitled to a 50-percent “surcharge” against: (1) a gift of $60,000 made to the Skokoses’ three children through the Theodore C. Skokos Irrevocable Trust No. 3; (2) another $60,000 gift to the children allegedly made through the Theodore C. Skokos Irrevocable Trust No. 4; and (3) a $645,000 payment made by Mr. Skokos to Sheffield Nelson. Thus, Ms. Skokos seeks a reimbursement or surcharge for one half of $765,000, or $382,500. We hold that Ms. Skokos is not entitled to this sum.

a. Gifts to children

Ms. Skokos maintains that Mr. Skokos improperly funnelled $120,000 in gifts to their three children through two successive trusts established at a Texas bank after Ms. Skokos had filed for divorce. Ms. Skokos testified at trial that she believed some portion of these gifts should be “charged back” against Mr. Skokos but that she did not expect for her children to “pay [her] back.” Ms. Skokos seeks a 50-percent “surcharge” with respect to the total $120,000 because she believes the gifts were made “without her knowledge and consent.”

Two trusts are at issue here. The first trust — the Theodore C. Skokos Irrevocable Trust No. 3 — was created on October 1, 1993, after Ms. Skokos’s complaint for divorce had been filed. The corpus of Trust No. 3 was stock that Mr. Skokos, as grantor, conveyed to the Texas bank serving as trustee. The trust terminated on January 17, 1994, at which time gifts of $20,000 were made to each of the three Skokos children, for a total gift of $60,000. The second trust — the Theodore C. Skokos Irrevocable Trust No. 4 — was created on October 20, 1994, also after the filing of Ms. Skokos’s complaint for divorce. The terms of Trust No. 4 provided that the trust would terminate on January 16, 1995, at which time gifts of $20,000 would again be made to each of the three Skokos children. Trusts Nos. 3 and 4 were successors to a trust initially created by Mr. Skokos in 1992. The provisions of Trusts Nos. 3 and 4 were apparently the same as those established in connection with the 1992 trust.

Ms. Skokos argues on appeal that she is entitled to a 50-per-cent surcharge against the $60,000 gift made through Trust No. 3 and the $60,000 gift made through Trust No. 4. It appears, however, that Ms. Skokos made no request to the Trial Court to impose any surcharge with respect to the latter gift. The summary of “items to be surcharged to Ted Skokos” that was prepared and submitted to the Trial Court by Ms. Skokos’s accountant included only the $60,000 gift that was made in January 1994 through Trust No. 3 and did not refer to any gift that might have been made through Trust No. 4. Ms. Skokos’s proposed findings of fact and conclusions of law refer to only one of the two $60,000 gifts at issue. No reference is made to a date or the identity of a particular trust, but we assume it refers to the gift that was made in January 1994 through Trust No. 3. In any event, the pleading does not refer to both gifts that are mentioned on appeal.

We are not directed to any other place in the 15-volume abstract, and we have not located such a place, which demonstrates that Ms. Skokos requested the Chancellor to impose a surcharge on any gift made in connection with Trust No. 4. We are aware that counsel for Ms. Skokos mentioned Trust No. 4 in connection with an objection he raised in response to Mr. Skokos’s testimony concerning the creation of the initial trust in 1992. Counsel objected that the testimony concerning the 1992 instrument was irrelevant because Ms. Skokos was “complaining about . . . the new trusts, Texas Trust Number Three and Four that Mr. Skokos created without Mrs. Skokos’s agreement, and we think contrary ... to the spirit and the terms of the Court’s . . . restraining order entered when the divorce was filed.” Even here, however, counsel voiced no request for a surcharge on any gift that might have been made through either trust. When Mr. Skokos later testified that the funds in Trust No. 4 had been frozen and that no gift had even been made to the children through that trust, counsel made no request for a surcharge and did not refute Mr. Skokos’s claim. Counsel simply responded: “Well, we would ask that those gifts be frozen, Your Honor, and that $60,000 — if it’s still there, we’re very happy that it’s there.” Even if Ms. Skokos had requested the Chancellor to impose a surcharge on any gift that the children may have received through Trust No. 4, the Chancellor’s final decree does not address such a claim. The abstract does not otherwise indicate that the Chancellor made a ruling on that issue.

For these reasons, we do not reach the merits of Ms. Skokos’s claim asserting an entitlement to a 50-percent surcharge on any gift the Skokos children may have received through Trust No. 4. We decline to address an argument if the abstract does not show that it was made in the Trial Court, Webber v. Webber, 331 Ark. 395, 400, 962 S.W.2d 345 (1998), and ruled upon there. Sanders v. Bradley County Human Servs. Public Facility Bd., 330 Ark. 675, 683, 956 S.W.2d 187, 191 (1997).

The issue of Ms. Skokos’s right to a surcharge on the gift made through Trust No. 3, however, is preserved for our review. Ms. Skokos clearly raised that issue with the Chancellor, and the Chancellor’s order addressed, and rejected, the argument as follows:

The three children received $20,000 each in early 1994 from a joint trust fund. The payments were made pursuant to a multiyear estate plan previously agreed upon by the parties. Plaintiff wants one half of each payment back, but wants Defendant to repay her rather than the children. The request lacks merit.

We hold that the Chancellor’s ruling is not clearly erroneous. There is ample evidence in the record that supports the Chancellor’s conclusion that the gift through Trust No. 3 was not improperly made.

The testimony showed that Trust No. 3 succeeded a trust that Mr. Skokos created in 1992 during a trip to Texarkana, Texas. Mr. Gelzine testified that he flew to Texarkana with Mr. and Ms. Skokos and their children and that they met with personnel from a Texarkana bank and executed the appropriate documents. Mr. Gelzine testified that he recommended the provision for the $20,000 per child gift in order to reduce the Skokoses’ tax liability. Mr. Gelzine testified that, as far as he could determine, “everyone was clear on what the provisions of the trust [were]. ”

Mr. Skokos testified that he and Ms. Skokos “visited at length” about the creation of the 1992 trust and the provision for the gifts to the children. He testified that he and Ms. Skokos wanted to fashion the trust so that the children would receive the gift over a period of several years. According to Mr. Skokos, the terms of the successor trusts did not vary from those he had discussed with Ms. Skokos prior to the creation of the 1992 trust.

In support of her claim that the gifts to the children under Trust No. 3 were improper, Ms. Skokos relies on Mr. Gelzine’s concessions in his testimony that: (1) he helped prepare the trust documents but did so without seeking Ms. Skokos’s input or involving her in the process; and (2) he prepared the trust documents at Mr. Skokos’s direction and upon verifying with Mr. Kidd that he “could go ahead and set up another Texas trust.” Mr. Gelzine added, however, that Trust No. 3 was created only for tax-relief purposes.

Whether or not Ms. Skokos was aware of, or consented to, the creation of Trust No. 3 and the $60,000 gift to her children that was authorized by the trust, we know of no authority that entitles a spouse to be reimbursed in a divorce proceeding for every nonconsensual transfer of marital funds made by the other spouse. Under the rule announced in Pierson v. Barkley, supra, and Ramsey v. Ramsey, supra, and the other cases cited above, it was necessary for Ms. Skokos to prove that Mr. Skokos effectuated that transfer of marital property (the $60,000) with the specific intent to defraud Ms. Skokos of her interest in that property. Proof of that sort is clearly lacking in the record.

b. Payments to Sheffield Nelson

Ms. Skokos also maintains that she is entitled to a 50-percent surcharge against $645,000 that Mr. Skokos transferred to Sheffield Nelson by payments made both before and after the filing of her complaint for divorce. Mr. Skokos acknowledges that he paid that amount to Mr. Nelson in three installments: $450,000 on October 2, 1991; $100,000 in April or May of 1993; and $95,000 in November of 1993. Ms. Skokos claims the payments were improper, and therefore subject to a surcharge, because they were part of a “secret” and “illegal” referral fee that Mr. Skokos paid to Mr. Nelson in return for an attorney-referral to him of a shareholders’ derivative case involving Worthen Bank, a case for which Mr. Skokos received an attorney’s fee following a settlement hearing in February 1988.

Ms. Skokos claims that any payment of fees by Mr. Skokos to Mr. Nelson for referring the Worthen Bank case would have been “illegal” and “unethical” because Mr. Skokos, during the settlement hearing, did not disclose that Mr. Nelson would be sharing in the fees awarded and represented to the presiding judge that he would not share the fees with anyone who was not disclosed. Ms. Skokos appears to base her theory upon written correspondence not admitted into evidence in which Mr. Skokos and Mr. Nelson, in the months following the settlement of the Worthen Bank case, discussed the possibility of Mr. Nelson receiving a $50,000 referral fee.

At trial, however, both Mr. Skokos and Mr. Nelson explained that the $645,000 payment had no relationship to the Worthen Bank case and was not a “referral fee” of any kind. According to their testimony, the payment was made pursuant to an agreement they reached concerning Mr. Skokos’s operations in the cellular-telephone market.

Mr. Skokos testified that he received a cellular-telephone franchise through a lottery conducted by the Federal Communications Commission. Under the terms of the license approved on May 7, 1990, Mr. Skokos was required to commence operations within 18 months or else face forfeiture of the license. Concerned that he would not be able to obtain adequate financing within the allotted time, Mr. Skokos turned to Mr. Nelson for assistance in June 1990. They reached a verbal agreement whereby Mr. Skokos promised to pay a “loan-commitment fee” to Mr. Nelson in return for Mr. Nelson’s promise to loan Mr. Skokos several million dollars if called upon to do so.

Mr. Skokos did not call upon Mr. Nelson for a loan, as he found other backing for his cellular-telephone venture. Although he had secured the financing promise of Mr. Nelson, Mr. Skokos hired the firm of Daniels and Associates to locate an investor. That firm located Atlantic Cellular, which paid $11.5 million to Mr. Skokos for a 50.01-percent controlling interest in the cellular-telephone franchise. The purchase and sales agreement, signed on February 28, 1991, by Ms. Skokos while Mr. Skokos was overseas, included a covenant on Mr. Skokos’s part that no one, aside from Daniels and Associates, would receive a commission or finder’s fee “in connection with the transaction contemplated by this agreement.” The deal closed in April 1991, and Daniels and Associates received a finder’s fee of $250,000.

Mr. Skokos testified that he could have “walked away” from the agreement with Mr. Nelson, as it would not have been necessary for him to rely on the line of credit that Mr. Nelson had promised to make available. Mr. Skokos testified that he discussed the matter with Ms. Skokos and indicated to her that he felt he should honor the agreement. According to Mr. Skokos, Ms. Skokos advised him to “do whatever you think is right.”

Thereafter, Mr. Skokos and Mr. Nelson agreed in writing that Mr. Skokos would pay a negotiated fee of $650,000. The Chancellor received into evidence a written memorandum, dated October 2, 1991, that Mr. Nelson wrote to Mr. Skokos recounting the terms of their agreement on “the New Hampshire Cellular matter.” Mr. Skokos promised to pay $450,000 on October 2, 1991; $100,000 in April 1993; and $100,000 in April 1994. In his memorandum, Mr. Nelson referred to the payments as a “finder’s fee/legal fee.” Mr. Skokos testified that he discussed the agreement with Ms. Skokos. According to Mr. Skokos, “She told me to do whatever I thought was right, and I said, I think this is right. I owe the money, and I paid it.” Ms. Skokos acknowledged in her deposition that she viewed the obligation that Mr. Skokos had incurred as a marital debt.

Mr. Skokos testified that he made the first two payments more or less as scheduled but that he renegotiated the terms regarding the third payment so that Mr. Skokos paid only $95,000 but did so in November 1993, earlier than originally scheduled. Mr. Skokos testified that he sought to make a reduced payment ahead of schedule because “I wanted to get my affairs in order before my divorce trial started.” Thus, the total amount paid to Mr. Nelson was $645,000. It appears that some, if not all, of these payments were (1) reported by Mr. Nelson as income on his tax returns; and (2) reported by Mr. and Ms. Skokos as business-expense deductions on joint tax returns that each of them signed.

Mr. Skokos and Mr. Nelson acknowledged in their testimony that they had discussed in 1988 the possibility of Mr. Nelson receiving a $50,000 fee for having referred the Worthen Bank case. They testified, however, that they ultimately dropped the matter when Mr. Skokos refused to pay a referral fee and that the payment of $645,000 bore no relationship to the Worthen Bank case. In one of the memoranda cited by Ms. Skokos, Mr. Skokos makes clear his intention not to pay any fee for Mr. Nelson’s referral of the case.

Ms. Skokos’s accountant testified that the $645,000 payment did not pass the “smell test,” noting that a reasonable fee for a $1,000,000 line of credit would only be $100,000. Our understanding of the testimony is, however, that Mr. Nelson was ready to advance “several million” dollars.

The Chancellor, evidently relying on the above testimony, and the acknowledgement by Ms. Skokos in a deposition that the obligation to Mr. Nelson was a marital one, rejected Ms. Skokos’s contention that the payment to Mr. Nelson was subject to a “surcharge”:

Plaintiff seeks to surcharge Defendant for funds paid to Sheffield Nelson. Plaintiff previously acknowledged the debt to Sheffield Nelson pursuant to an agreement made years before the parties separated. The debt was a marital responsibility. There is insufficient evidence in this record to establish any impropriety regarding the agreement and payments.

The propriety or lack of propriety, other than in the context of the relationship between Mr. and Ms. Skokos, of the payments to Mr. Nelson is not at issue in this appeal. Rather, as noted above, we are concerned with whether the payments were made to defraud Ms. Skokos of her marital interest in the funds. “Ordinarily, we do not reverse a chancellor where the decision turns largely on disputed facts and witness credibility, as we accede to [her] superior position to observe the witnesses and gauge their demeanor.” Dopp v. Sugarloaf Mining Co., 288 Ark. 18, 21, 702 S.W.2d 393, 394 (1986). The ruling was not clearly erroneous.

5. Recusal

The final argument advanced by Ms. Skokos in support of reversing Chancellor Gray’s decree is that the Chancellor erred in declining numerous requests made by Ms. Skokos’s counsel that she recuse from the case. We affirm on this point.

In Skokos v. Gray, 318 Ark. 571, 886 S.W.2d 618 (1994), we denied Ms. Skokos’s certiorari request to disqualify Chancellor Gray. We held that certiorari does not lie for such discretionary matters as recusal, and we noted that the grounds asserted in support of the judge’s recusal in the petition could not be argued later in the event of an appeal from the final decree. Id. at 575, 886 S.W.2d at 621. Ms. Skokos invites us to reconsider this point and to consider the conduct Ms. Skokos mentioned in the petition for the writ. We decline to do so. We only consider at this point facts occurring subsequent to our denial of the writ that are cited in Ms. Skokos’s brief as bases for holding the Chancellor should have recused.

Ms. Skokos points to the following events. First, she says a disqualifying bias was evident in the rulings excluding Mr. Fox’s testimony and limiting the cross-examination of Mr. Buono. Second, she contends the Chancellor failed to make a timely disclosure of her relationship with a law partner of Byron Eiseman, an attorney scheduled to testify as an expert witness for Mr. Skokos. Third, she maintains the Chancellor should have recused because her court reporter communicated with another judge about the conduct of Ms. Skokos’s counsel.

Judges must refrain from presiding over cases in which they might be interested and must avoid all appearance of bias. Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994). However, we will not reverse a judgment on the basis of a trial judge’s decision not to disqualify unless the judge has abused her discretion. Id. To decide whether there was an abuse of discretion, we review the record to determine if any prejudice or bias was exhibited. Id. The question of bias is usually confined to the conscience of the judge. Noland v. Noland, 326 Ark. 617, 932 S.W.2d 341 (1996). Judges are presumed to be impartial, and the party seeking disqualification has the burden of showing otherwise. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996).

Dolphin v. Wilson, 328 Ark. 1, 4, 942 S.W.2d 815, 817 (1997).

a. Evidentiary rulings

Bias will not ordinarily be evidenced in the fact of adverse rulings such as the evidentiary. rulings complained of in this case. See Trimble v. State, 316 Ark. 161, 172, 871 S.W.2d 562, 567 (1994); Roe v. Dietrich, 310 Ark. 54, 59, 835 S.W.2d 289, 292 (1992). Although we have determined it was error to have refused Mr. Fox’s testimony and may have been error to have limited the cross-examination of Mr. Buono, we cannot say that those rulings exhibited the sort of personal bias toward Ms. Skokos’s case that would have required recusal.

b. Byron Eiseman

Henry Hodges, one of Ms. Skokos’s lawyers, filed a complaint against the Chancellor with the Judicial Discipline and Disability Commission on a matter not related to this case. In that proceeding, the Chancellor was represented by a member of the law firm of Friday, Eldredge, and Clark. During the phase of the trial concerned with the QPRTs, Byron Eiseman, a member of that firm, appeared in the courtroom. The Chancellor noted the fact that persons she did not know were in the courtroom. Later, she realized that Mr. Eiseman was a member of the Friday firm. She announced it was her practice to recuse in matters in which the Friday firm served as counsel, and she invited motions.

Counsel for Ms. Skokos moved that the Chancellor recuse. The contention was that Mr. Eiseman’s name had been on Mr. Skokos’s witness fist and that the Chancellor thus should have known of his connection with Mr. Skokos much earlier. In addition, Mr. Eiseman’s name and his potential testimony, although not the name of his law firm, had been mentioned orally several times in the proceedings. After the Chancellor made her announcement, counsel for Mr. Skokos withdrew Mr. Eiseman as an expert witness. Mr. Eiseman left the courtroom and did not testify. The Chancellor took the motion under advisement and later announced she would not recuse.

Ms. Skokos asserts that recusal was necessary, in spite of the fact that Mr. Eiseman was withdrawn as a witness and never testified, because of Mr. Eiseman’s “improper participation” in the case, consisting of sitting at counsel’s table and being “defacto, if not de jure, co-counsel to [Mr. Skokos] in the trial.”

The Chancellor’s explanation in response to the motion included the fact that she had not read the witness list and that she did not realize a member of the Friday firm was in the courtroom until she recalled seeing Mr. Eiseman’s name on correspondence, apparently from her attorney.

We cannot tell from the record before us the extent, if any, of Mr. Eiseman’s participation in this case beyond having been consulted and listed as an expert witness for Mr. Skokos. We note the Chancellor’s remarks that she did not know him and that he had, to her knowledge, not appeared before her previously. The record does not demonstrate any bias resulting from the incident, and, given the withdrawal of Mr. Eiseman, we cannot say any appearance of bias was such as to require recusal.

c. Marjorie Gachot and Judge John Harkey

The final basis asserted by Ms. Skokos for Chancellor Gray’s recusal is a communication made by the Chancellor’s court reporter, Marjorie Gachot, to the Honorable John Harkey, of Batesville, a chancellor in a separate judicial district. Ms. Skokos’s counsel alleged the communication demonstrated that the Chancellor was conducting an “investigation” of Bob Robinson, one of her lawyers, and that bias against her and her counsel was thus apparent. A motion for recusal was filed on February 6, 1995, attaching an affidavit from Judge Harkey. We affirm on this point.

There was considerable skirmishing over the holding of a hearing on the motion. Ms. Skokos’s counsel wanted the hearing to be held with Judge Harkey’s testimony being taken by telephone. Counsel for Mr. Skokos insisted on having Judge Harkey present in the courtroom for cross-examination. Counsel for Ms. Skokos sought a continuance, which was not granted, for that purpose. He also attempted to have Chancellor Gray testify under oath.

A hearing was held during which Mr. Robinson read from Judge Harkey’s affidavit to the effect that Chancellor Gray’s court reporter, Marjorie Gachot, had called to speak with Judge Harkey’s court reporter and, upon learning that she was unavailable, spoke with Judge Harkey. Ms. Gachot allegedly asked about Mr. Robinson’s conduct in Judge Harkey’s court, suggesting that Mr. Robinson’s conduct had been a problem.

Ms. Gachot testified at the hearing that she had been a court reporter since 1967 and had worked with Chancellor Gray for two years. She said she had indeed called to speak with Judge Harkey’s court reporter and that her conversation with Judge Harkey had lasted less than a minute. She said she asked only if Mr. Robinson had been in Judge Harkey’s court. She insisted she did not tell Judge Harkey about rumors she had heard about Mr. Robinson’s conduct before him. She said Chancellor Gray had been made aware she was going to call and that she had made the call out of curiosity because she had been concerned about Mr. Robinson’s behavior before Chancellor Gray and thought she might help solve the problem. She insisted that the affidavit of Judge Harkey was “not correct” in its statement that she impugned the conduct of Mr. Robinson.

The Chancellor again refused to recuse, and in her order she declared that Mr. Robinson was not being “investigated” by her or by her staff. She pointed out that, even if she had personally called Judge Harkey to discuss the matter of conduct of counsel, that would have been permissible in accordance with the Code of Judicial Conduct, Canon 3, § 7(c).

We decline to reverse the Chancellor’s decision not to recuse. The decision was, again, a discretionary one, and we cannot say the record demonstrates that the Chancellor was biased toward Ms. Skokos or her counsel.

In closing, we note that, after Chancellor Gray’s recusal, Chancellor Jim R. Hannah was assigned to the case. Chancellor Hannah’s assignment to this case will continue upon remand.

Affirmed in part; reversed in part, and remanded.

Special Justices Jim Burnett, Ted N. Drake, Searcy W. Harrell, Jr., and Lynn Williams join in this opinion.

Glaze, Corbin, Brown, and Imber, JJ., not participating.


author: Tom Glaze, Associate Justice. Brown and Imber, JJ.,

text:
    ARKANSAS OKLAHOMA GAS CORPORATION v. WAELDER OIL & GAS, INC., and Southwestern Glass Co., Inc.
    97-830
    966 S.W.2d 259
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998

      Daily & Woods, P.L.L.C., by: Jerry L.CanJield, for appellant.

      Warner, Smith & Harris, PLC, by: Joel D. Johnson, for appellees.
   Tom Glaze, Associate Justice.

This appeal is the second one between the parties. See Southwestern Glass Co. v. Arkansas Oklahoma Gas Corp., 325 Ark. 378, 925 S.W.2d 164 (1996). In Southwestern Glass I, we held that Arkansas Oklahoma Gas (AOG) failed to show how Southwestern Glass’s proposed pipeline to be constructed in Ft. Smith would be inconsistent with the city’s use of its right-of-way. Because the trial court had found differently and had issued a temporary restraining order enjoining Southwestern Glass and its contractor, Waelder Oil & Gas, Inc., from completing construction of Southwestern Glass’s pipeline, we reversed and remanded with directions that the trial court’s injunction be dissolved.

On remand, the trial court held a hearing to permit Southwestern Glass and Waelder the opportunity to show any damages they may have incurred which resulted from the erroneous entry of the trial court’s temporary injunction. See Citizens’ Pipe Line Co. v. Twin City Pipe Line Co., 183 Ark. 1006, 39 S.W.2d 1017 (1931); see also Ark. Code Ann. § 16-113-405 (1987) (assessment of damages upon dissolution of injunction or restraining order), and § 16-113-203 (1987) (bond for damages and costs required for injunction to become effective); and Ark. R. Civ. P. 65. After the hearing, the trial court ruled that Southwestern Glass and Waelder presented no evidence of damages that they had sustained between the time the temporary restraining order was issued on June 28, 1995, and when it was dissolved on July 18, 1996. The trial court further declared Southwestern Glass and Waelder were not entided to attorney’s fees under case law or statute, but it still made an award based on exhibits pertaining to attorney’s fees incurred by Southwestern Glass in the amount of $3,978.35, and Waelder in the sum of $8,239.95, as a condition of the surety bond that AOG had obtained when the restraining order was granted. While Southwestern Glass and Waelder do not appeal the trial court’s decision denying them damages, AOG appeals, arguing the trial court erred in making its award. AOG’s argument has merit.

We initially point out that the trial court fully recognized the long-established rule in Arkansas that attorney’s fees are not recoverable in injunction cases. Citizens’ Pipe Line Co., 183 Ark. 1006, 39 S.W.2d 1017 (1931); Tolbert v. Samuels, 229 Ark. 676, 317 S.W.2d 715 (1958); Oliphant v. Mansfield & Co., et al., 36 Ark. 191 (1880); McDaniel v. Crabtree, 21 Ark. 431 (1860). Moreover, the general rule in Arkansas is well settled that attorney’s fees are not awarded unless expressly provided for by statute or rule. Security Pac. Housing Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993); Chrisco v. Sun Ind., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). And while not argued, we mention Ark. Code Ann. § 16-22-308 (Repl. 1994), which allows for the award of attorney’s fees in certain civil actions, including actions for breach of contract. However, this statute fails to help Southwestern Glass and Waelder, since no contract breach is argued here, and as discussed in this court’s opinion, infra, AOG’s surety bond in no way specifies or provides for attorney’s fees in these circumstances.

In awarding attorney’s fees conditioned upon AOG’s bond, the trial court relied on the following wording from the Citizens’ Pipe Line case:

The rule is thus stated in chapter on Injunctions, 32 C.J., § 744: “Complainant’s liability for wrongful issuance of an injunction at his instance may, of course, be fixed by the bond that he was required to give as a condition to the granting of the injunction. But, although there is contrary authority, the general rule, unless changed by statute, is that, without a bond for the payment of damages or other obligations of like effect, a party against whom an injunction has been wrongfully issued can recover no damages unless he can make out a case of malicious prosecution by showing malice and want of probable cause on the part of the party who obtained the injunction.” 183 Ark. at 1010, 39 S.W.2d at 1018 (1931).

First, we note that, contrary to the trial court’s ruling that the foregoing language somehow authorizes attorney’s fees, that decision, as already discussed hereinaboye, actually holds that such fees are not allowed as damages when an injunction has been dissolved. In this respect, we find it telling that the trial court, Southwestern Glass or Waelder cite no Arkansas statute, rule, or case law which provides for attorney’s fees when an injunction has been granted erroneously and a bond had been issued to effectuate the injunction.

Second, AOG’s surety bond’s language, itself, fails to support the trial court’s award of attorney’s fees. In this respect, the bond reads as follows:

Surety, on behalf of itself and its principal [AOG], acknowledges their indebtedness to defendants in the amount of $25,000.00 conditioned on the payment by [AOG] of all damages, costs, and attorney’s fees incurred by defendants in the event that it is finally decided that [AOG] is not entided to the temporary restraining order entered in the captioned litigation.

As provided by AOG’s bond, Southwestern Glass and Waelder were entitled to damages, costs, and attorney’s fees they incurred in the event the temporary injunction granted AOG was set aside. However, neither Southwestern Glass nor Waelder presented evidence of damages and they do not contend otherwise on appeal. Neither Southwestern Glass nor Waelder has shown it has incurred attorney’s fees as authorized by statute, rule, or case law.

Finally, Waelder urges us to reconsider this court’s decision in Citizens Pipe Line Co. and hold attorney’s fees are recoverable in any injunction case. To support this requested change in law, Waelder cites only to secondary legal authority, 42 Am. Jur. 2d, Injunctions § 373 (1969), and offers no convincing argument why our present law regarding attorney’s fee awards should be overruled. See Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996). We decline Waelder’s request.

Reversed and remanded.

Thornton, J., not participating.

Brown and Imber, JJ.,

concur for the added reason that the bond language regarding “damages, costs, and attorney’s fees” is in the conjunctive. An award of attorney’s fees is inapproriate absent an award of damages.

       We note that Waelder argues AOG should not be allowed to contest the terms of the surety bond, because AOG never made such an argument below. However, Waelder and AOG developed opposing theories below — Waelder arguing the bond supported an award, and AOG insisting that such an award was not permissible in injunction cases or under statute or rule. It is these same arguments that are now made on appeal and are squarely before us for a decision.


author: Tom Glaze, Justice.

text:
    Vincent James HUSSEY v. STATE of Arkansas
    CR 97-450
    966 S.W.2d 261
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998

      William M. Howard, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen. and James Gowen, Law Student Admitted to Practice Pursuant to Rule XV(E)(l)(b) of the Rules Governing Admission to the Bar of the Arkansas Supreme Court, under the supervision of Kelly K. Hill, Deputy Att’y Gen., for appellee.
   Tom Glaze, Justice.

This appeal is a companion case to Harris v. State, 331 Ark. 353, 961 S.W.2d 737 (1998), where we upheld the capital-murder conviction of Derrick Harris for the shooting death of Jimmy Gathings, a Monticello used-car dealer. Harris’s sole point on appeal was that the State had presented testimony that was so conflicting that it was insufficient to sustain a jury verdict of guilty. We disagreed, and held that the trial court had correctly denied Harris’s directed-verdict motion based on the eyewitness testimony of Albert Lambert and Jerry Majors. Both men testified that they heard “pows” or “banging” sounds, observed Harris and another man leaving Gathings’s office, and subsequently found Gathings had been shot. In Harris, we upheld the jury verdict of guilty and concluded that any incon sistencies in the witnesses’ testimony went to their credibility.

For his first point of error, appellant Vincent Hussey challenges the trial court’s denial of his motion for a directed verdict. Hussey contends the State failed to prove a robbery had been committed or that he had committed a homicidal act, thus failing to prove the charge of capital murder. However, in reviewing the record, it is clear there is sufficient evidence to support Hussey’s conviction for capital murder.

As in Harris, Lambert and Majors testified that they heard what sounded like shots coming from Gathings’s office and saw two men running from the office with pistols in their hands. Lambert and another man got in a truck and followed the two men to a nearby location where the men were picked up by others sitting in a red car. In Harris, Lambert identified Harris as the first man leaving Gathings’s office. In the present case, Lambert identified Flussey as the second man. Myron Briggs testified that, on the day of Gathings’s murder, he dropped Harris and Hussey off at a pool hall before the murder, and picked them up afterwards as they ran to Briggs’s car. Briggs said he took them to where Hussey resided.

Majors testified the same as he had in Harris, plus he described the second man out of Gathings’s building as wearing a brown or tan flannel shirt with a red shirt underneath and a blue or black toboggan on his head — the same clothing Hussey wore the day of Gathings’s murder. Scott Sherrill, a serologist, testified the red shirt Hussey wore on that day had blood stains matching Gathings’s blood type.

Hussey gave officers conflicting statements that implicated him in Gathings’s murder. Hussey first asserted he was not involved in the murder, but after signing a rights form, he conceded he went to Gathings’s office, but said “another guy pulled the trigger.” In another statement, Hussey related that Harris and a man named Stanford offered Hussey and two friends $500.00 to serve as lookouts while Harris robbed Gathings’s store. At trial, Hussey claimed he stood somewhere outside Gathings’s building, but in an earlier statement, he said that he was stationed inside, where he saw Gathings reach for Harris’s gun and Harris reacted by shooting Gathings.

In sum, Hussey’s own pretrial statements, and even his trial testimony, were at odds with his attempts to explain his participation, if any, in the shooting death of Gathings. This court has often stated that false and improbable statements explaining suspicious circumstances are admissible as proof of guilt. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Our court has further held that one eyewitness’s testimony is sufficient to sustain a conviction. Harris, 331 Ark. 353, 961 S.W.2d 737. In reviewing the foregoing evidence most favorable to the State, we hold that there is more than substantial evidence to support the jury verdict finding Hussey guilty. See Id.

Hussey’s second and final point for reversal is that the trial court erred in ruhng he had voluntarily waived his rights and confessed. Again, Hussey’s argument is without merit. In support of this point, Hussey claims that he was never given a chance to read his statements, that he was beaten by an officer before giving his statement, and that he was driven to a secluded area by an officer and at gunpoint forced to sign one of his statements. Hussey also testified that he was wearing ankle shackles and handcuffs when an officer beat and rammed Hussey’s head into a window. He claimed an administrator, Barbara Pirtle, and an inmate, Scott Cruce, witnessed these events. However, not only did the officers deny such actions had taken place, but both Pirtle and Cruce testified they did not see anything that would indicate Hussey was being hurt.

When reviewing the voluntariness of confessions, we make an independent determination based on the totality of the circumstances and reverse the trial court only if its decision was clearly erroneous. Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996). Based upon the foregoing evidence, we are unable to say the trial court was clearly erroneous in finding Hussey’s statements were a product of his own free will.

In accordance with Ark. Sup. Ct. Rule 4-3(h), the record has been reviewed for adverse rulings objected to by appellant but not argued on appeal, and no such errors were found. For the aforementioned reasons, Hussey’s judgment of conviction is affirmed.


author: Donald L. Corbin, Justice.

text:
    Glenn HIGGINBOTHAM v. JUNCTION CITY SCHOOL DISTRICT, Alvin Kelly, Leon Hines, Randall J. Lyons, Stan Owens, John Sims, and Kevin Hux
    97-749
    966 S.W.2d 877
    Supreme Court of Arkansas
    Opinion delivered April 16, 1998

      Pat Hall, for appellant.

      William C. Brazil, for appellees.
   Donald L. Corbin, Justice.

Appellant Glenn Higginbotham raises two issues against Appellee Junction City School District (the District), for whom Appellant was formerly employed as a high school principal, and the individual Appellees, the District’s superintendent and school board members. The Union County Circuit Court upheld the District’s decision to refuse Appellant’s attempted withdrawal of his resignation. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(17), as this appeal involves a significant public interest and interpretation of the Teacher Fair Dismissal Act (the Act), codified at Ark. Code Ann. §§ 6-17-1501 to -1510 (Repl. 1993). We affirm.

In July 1994, the District hired Appellant as the high school principal for the 1994-95 school year. Appellant served as principal for the District until December 19, 1994, when Superintendent Alvin Kelly asked him to resign.

Kelly had conferenced with Appellant on both September 30, 1994, and October 24, 1994, about Appellant’s performance of his duties. A memo dated September 30, 1994, from Kelly directed Appellant to allow Dale Hux, another teacher and dean of students, to handle discipline matters in order for Appellant to “supervise the instructional program, interact with the students and teachers in order to get to know them and their needs.” The memo further set forth procedures for written announcements, intercom usage, lunch detention, and organizing “items of importance.” After discussing these issues with Appellant, Kelly placed the memo in Appellant’s personnel file.

Another memo from Kelly, dated October 25, 1994, followed the October 24, 1994 conference between Kelly and Appellant. In that memo, Kelly cited six concerns regarding discipline and gave suggestions for improvement. The issues in the October 25, 1994 memo were similar to those in the September 30, 1994 memo.

On December 19, 1994, Kelly presented a letter to Appellant, detailing ten serious concerns about Appellant’s “effective and efficient operation” of the school. The concerns included Appellant’s calling students “yard apes” over the intercom; failing to remember names of students and teachers; failing to maintain necessary materials for operating the school; paddling students without witnesses; “[e]xcessive cross-examination of teachers on routine referrals of students to the office”; poor written and oral communications skills; his monitoring activities, which were viewed as a “joke” by students; poor leadership; teachers’ resentment of Appellant’s evaluations of them; using profanity in the classroom; and failing to maintain professional rapport with teachers. The letter further stated:

I am hereby requesting that you resign immediately. If you feel a resignation is not in order, I will begin termination procedures immediately.

Appellant wrote, “As of today, I resign,” and signed his name across the letter. He then cleaned out his office and turned in his keys the same day. Kelly notified the board members of Appellant’s resignation that night by telephone. Appellant later alleged that he wrote those words of resignation because he did not want a termination on his resume. Appellant also alleged that Kelly promised to pay him his salary for January if he resigned immediately.

On December 20, 1994, Appellant attempted to retract his resignation through letters written by his attorney to Kelly and the school’s attorney, Bill Prewett. Appellant reported back to work on December 22, 1994, although no one else was there because of the holidays. The District responded that Appellant’s resignation had already been accepted. The District further advised Appellant to request a hearing no later than January 5, 1995. Additionally, Prewett wrote:

[T]he Superintendent of Schools will recommend to the Board at its meeting on January 10 that Mr. Higginbotham be terminated as of December 19, the day of his resignation. The recommendation for termination is based upon the reasons set forth in Mr. Kelly’s letter of December 19 which was delivered to Mr. Higginbotham on that date. A copy of the letter is enclosed for your information.

Appellant requested a hearing, a transcript of the hearing, names of witnesses expected to testify at the hearing, and exhibits expected to be presented. Although the District made the exhibits and other discovery available for Appellant to copy, Appellant did not go to Prewett’s office to copy them before the hearing.

The hearing occurred on February 1, 1995. Prewett presided as the hearing officer at the board’s request. The board did not provide a court reporter, but tape recorded the hearing and had it transcribed. Prewett read statements against Higginbotham by parties who were not present at the hearing. Superintendent Kelly testified about the facts leading up to the resignation. Appellant and his attorney voluntarily left the hearing before it was over without making a statement or introducing evidence. After finding that Appellant had reported his resignation to the Missouri Unemployment Commission in writing, the board, upon motion, voted to formally accept Appellant’s resignation.

On April 21, 1995, Appellant appealed the board’s decision to the Union County Circuit Court. Appellant’s complaint alleged claims for violation of the Teacher Fair Dismissal Act, breach of contract, misrepresentation, outrage, mental distress, and duress. In the alternative, Appellant alleged that he was constructively discharged. .The trial court conducted the hearings on November 1 and November 19, 1996. Appellant testified that he thought Kelly was just helping him by issuing the September 30, 1994 and October 25, 1994 directives because he had walked into a bad situation in the school, which had employed four principals within four years. Appellant further testified that he was not formally evaluated during his employment with the Junction City Public Schools; he admitted, however, that he was aware of the concerns notated in the two prior memos and was also aware of his options when he wrote and signed his resignation on the December 19, 1994 letter. During cross-examination, Appellant admitted that he intended for his resignation to be effective immediately. Appellant further admitted that in his application for Missouri unemployment benefits that he completed on December 20, 1994, he wrote “because I didn’t fulfill job as told and then asked to resign, resigned.” When questioned about why he left the February 1, 1995 school board hearing before it was over, Appellant testified that he left because he had heard enough accusations and realized he was not going to get anything accomplished and was not allowed to present his side at what he had referred to as the “kangaroo court.”

Superintendent Kelly testified about the problems he discussed with Appellant in their two 1994 conferences. Kelly stated that he did not ask Appellant to sign either the September 30, 1994 memo or the October 25, 1994 memo, nor was Appellant told he could disagree or that the memos would be put into his file. Kelly also stated that Appellant told him that “if you don’t want me here, I don’t want to be here[.]” Kelly testified that he informed the board members of Appellant’s resignation by telephone the night of December 19, 1994. Kelly further testified he would have suspended Appellant on December 19, 1994, if Appellant had not resigned. Kelly admitted that he promised to pay Appellant his January salary, but stated that he did not do so because Appellant later tried to withdraw his resignation.

Margaret McGaha, assistant elementary principal at Junction City, testified that Appellant told her over the telephone “that he thought it was best that he resigned because he knew that Mr. Kelly, or we were unhappy with his work.”

High school secretary Diana Dove testified that she often had to rewrite Appellant’s announcements because they did not make any sense. Dove further testified that Appellant also kept shorter hours than the other administrators and had frequent memory problems.

Board members testified that they accepted Appellant’s resignation over the telephone on December 19, 1994, when Kelly communicated it to them. Board member Randall Lyons testified that the board first accepted Appellant’s resignation before terminating him.

In a letter opinion dated February 13, 1997, and judgment filed on March 12, 1997, the trial court concluded that Appellant properly resigned, that the board accepted the resignation when delivered to Kelly as the board’s agent, and that the board denied Appellant’s attempt to withdraw his resignation at the February 1, 1995 hearing. The trial court found that there was sufficient cause for the denial of Appellant’s attempted withdrawal of his resignation and that the board did not act in an arbitrary, capricious, or discriminatory manner. The trial court also found that Appellant was not under duress when he resigned. The trial court dismissed all of the claims but the Act violations on the basis that an appeal under the Act cannot be expanded to include tort and contract actions. The trial court did not rule on the issue of whether the District conducted a proper termination proceeding due to its finding that Appellant had resigned.

Additionally, the trial court found that there was insufficient evidence to substantiate Appellant’s alternative claim for constructive discharge. Given that two board members worked at the school on a part-time basis, the trial court had concerns that the board was not completely impartial. The trial court concluded, however, that there was sufficient evidence to support the board’s actions. The trial court further found that the record of the February 1, 1995 hearing was properly preserved and that the twenty-seven gaps in the transcript did not affect its substance or overall accuracy. On April 7, 1997, Appellant filed notice of this appeal.

This court addressed the standard of review for school board decisions in Hamilton v. Pulaski County Special Sch. Dist., 321 Ark. 261, 900 S.W.2d 205 (1995):

We recognize that it is not our function to substitute our judgment on renewal matters for either that of the circuit court or that of the School Board. Allen v. Texarkana Public Schools, 303 Ark. 59, 794 S.W.2d 138 (1990); Green Forest Public Schools v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985). When the issue before us is whether procedures under the Teacher Fair Dismissal Act have been stricdy complied with, however, that is clearly a matter for this court’s review.

Id. at 266, 900 S.W.2d at 207.

Appellant first argues that the trial court erred when it upheld the District’s decision to terminate him. Specifically, Appellant alleges violations of the District’s policies and section 6-17-1507, which sets forth the involuntary termination procedures under the Act:

(a) A teacher may be terminated during the term of any contract for any cause which is not arbitrary, capricious, or discriminatory.
(b) The superintendent shall notify the teacher of the termination recommendation.
(c) The notice shall include a simple but complete statement of the grounds for the recommendation of termination and shall be sent by registered or certified mail to the teacher at the teacher’s residence address as reflected in the teacher’s personnel file.

The trial court specifically found that Appellant had resigned and thus expressly declined to make a ruling on the involuntary termination procedures; hence, this argument fails on its face. In its letter opinion dated February 13, 1995, the trial court wrote:

Last, there is the argument that defendant did not comply with the statute and its own policies in terminating plaintiff. This issue cannot be fully addressed because of the circumstances of the case .... Defendant considered plaintiff to have resigned and, therefore, did not initiate termination proceedings. Plaintiff was no longer available to receive any counseling or paperwork associated with the termination process. The primary purpose of the hearing was to act on plaintiff s request to withdraw his resignation .... No finding is made as to the termination procedure as that was not developed due to plaintiff’s resignation. [Emphasis added.]

Clearly, the trial court did not rule on the termination procedures provided in section 6-17-1507 and, in fact, expressly declined to rule on this issue. Appellant’s failure to obtain a ruling below bars review of this issue on appeal. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997).

Furthermore, the facts of this case support the trial court’s conclusion that Appellant resigned. Appellant testified that he resigned, reported in writing that he resigned when applying for unemployment benefits, and wrote and signed his resignation across the December 19, 1994 letter prepared by Kelly. Kelly testified that Appellant stated that he did not want to be there if he was not wanted. McGaha testified that Appellant told her he resigned. Accordingly, we cannot say that the trial court’s conclusion that Appellant resigned was clearly erroneous, and we affirm on this issue.

Likewise, we conclude that Appellant’s reliance on Act 625 of 1989, now codified at section 6-17-1503, as applied to the involuntary termination procedures, is misplaced. That section provides in relevant part:

A nonrenewal, termination, suspension, or other disciplinary action by a school district shall be void unless the school district strictly complies with all provisions of this subchapter and the school district’s applicable personnel policies. [Emphasis added.]

Appellant correctly states that this court has consistently interpreted section 6-17-1503 to require strict compliance with the termination procedures set forth in section 6-17-1507. Spainhour v. Dover Pub. Sch. Dist., 331 Ark. 53, 958 S.W.2d 528 (1998); Hannon v. Armorel Sch. Dist. #9, 329 Ark. 267, 946 S.W.2d 950 (1997); Lester v. Mount Vernon-Enola Sch. Dist., 323 Ark. 728, 917 S.W.2d 540 (1996); Hamilton, 321 Ark. 261, 900 S.W.2d 205; Western Grove Sch. Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994). The substantial-compliance standard no longer controls proceedings under the Teacher Fair Dismissal Act. Spainhour, 331 Ark. 53, 958 S.W.2d 528. Act 625 is unequivocal. Id. This standard of strict compliance does not, however, aid Appellant in his argument on appeal, as he was not involuntarily terminated from his position, but instead, resigned.

Appellant next argues that the trial court erred when it upheld the District’s decision to deny his request to withdraw his resignation. Specifically, Appellant argues that he retracted his resignation on December 20, 1994, through his letters to the District and by reporting back to work on December 22, 1994. Appellant further argues that the delivery of his resignation was not effective because the board did not formally vote to accept it.

Section 6-17-1506 provides in relevant part:

(a) Every contract of employment made between a teacher and the board of directors of a school district shall be renewed in writing on the same terms and the same salary, unless . . . during the period of the contract or within ten (10) days after the end of the school year, the teacher shall deliver or mail by registered mail to the board of directors his or her resignation as a teacher, or unless such contract is superseded[.] [Emphasis added.]

The trial court based its ruling on this court’s interpretation of section 6-17-1506 in Teague v. Walnut Ridge Sch., 315 Ark. 424, 868 S.W.2d 56 (1993). In that case, Teague, who was employed as a band director, hand-delivered his resignation to the principal, who in turn delivered it to the superintendent, after the board had already renewed his contract for the following year. The resignation was addressed to the principal, superintendent, and board of education. Teague later attempted to withdraw his resignation on the basis that the school board had not yet accepted it. This court rejected Teague’s argument and held that the resignation was effective before the board officially accepted it. This court held:

[S]ection 6-17-1506 does not require the board to take any official action in response to a teacher’s resignation. Had the legislature intended to require a school board to officially accept a teacher’s resignation, it could have so provided. It did not.

Id. at 427-28, 868 S.W.2d at 57-58. This court ultimately concluded that substantial compliance was met; thus, the appellant’s resignation was effective. This court emphasized:

[O]ur holding is based in part on the facts that appellant delivered his resignation to the principal with full intent that it make its way to the school board and that knowledge of the resignation made its way to the school board prior to appellant’s attempt to revoke his resignation.

Id. at 428, 868 S.W.2d at 58.

Although the holding in Teague may be distinguished on the grounds that Teague’s resignation was after his contract was renewed and was decided under the substantial-compliance standard, we observe that the General Assembly has not amended the Act to require a school district’s board of directors to formally accept a teacher’s resignation, nor has the Act been amended to require a school board to allow a teacher to withdraw his or her resignation. Teague still controls the issue of delivery, which is effective upon receipt by the superintendent. We hold that receipt of a resignation by the superintendent satisfies the requirement of delivery under section 6-17-1506 and constitutes strict compliance under the Act.

Moreover, Ark. Code Ann. § 6-12-108(b) (1987) defines the superintendent of schools “as the executive officer of a school district board of directors directing the affairs of the school district[.]” It follows that the superintendent serves as the agent for the board. Thus, Appellant’s resignation was effective when delivered to Superintendent Kelly in writing. Appellant testified that he was aware that his resignation would make its way to the school board via Kelly before he attempted to retract it.

A more complicated issue arises as to whether Appellant’s resignation, which Kelly requested, is equivalent to a firing, which would necessarily require strict compliance with section 6-17-1507. Although Appellant asserts that he resigned under duress, a resignation made in order to avoid termination proceedings is not necessarily involuntary. See generally 78 C.J.S. Schools and School Districts § 253 (1995). See also Alexander v. Alabama State Tenure Comm’n, 358 So. 2d 1032 (Ala. Civ. App. 1978). Similarly, a school official’s request to a teacher for that teacher’s resignation, as Kelly made here to Appellant, does not render a resignation involuntary. 78 C.J.S. Schools and School Districts § 253. See also Williams v. Lafayette Parish Sch. Bd., 533 So. 2d 1359 (La. Ct. App. 1988).

This court has held that in order to prove duress, the plaintiff must prove that he involuntarily accepted the defendant’s terms, that there were no alternatives, and that the defendant created the circumstances by coercion. Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993). Here, Appellant voluntarily chose to resign rather than be fired and was fully aware of his alternatives. Kelly not only gave Appellant his alternatives verbally, but also presented them in writing in the December 19, 1994 letter, on which Appellant wrote and signed his resignation. Kelly did not use wrongful or oppressive conduct; rather, he presented Appellant’s options to him.

We conclude that the trial court’s finding that Appellant resigned is not clearly erroneous, nor was the District’s vote to formally accept Appellant’s resignation. Testimony by Kelly and McGaha, support the trial court’s finding that Appellant admitted he resigned. Additionally, Appellant admitted that he stated in his application for Missouri unemployment benefits that he resigned. Therefore, the board’s decision to accept his resignation was not arbitrary, capricious, or discriminatory. A cause for termination is arbitrary and capricious if it has no rational basis. Hannon, 329 Ark. 267, 946 S.W.2d 950. The trial court correctly concluded that Appellant was not under duress at the time he resigned because he was aware of his alternatives. The statements Appellant made immediately after he tendered his written resignation to Kelly, in which he said he was not going to fight him on it, also show that Appellant was aware that Kelly would deliver the document to the school board who would act on it. The individual school board members testified that Kelly contacted them by telephone on December 19, 1994, and informed them of Higginbotham’s resignation.

We recognize that strict compliance is now the standard for determining if Appellant’s resignation was proper according to the language found in section 6-17-1506. Under the facts as stated in this case, the District strictly complied with the Teacher Fair Dismissal Act when it voted to accept Appellant’s resignation, which was effective upon delivery to Kelly.

Moreover, we are not willing to foreclose a teacher’s right to resign by choice when confronted with the options of resignation and involuntary termination. Appellant testified that he was aware of his rights under the Act and the District’s policies. He stated that he chose to resign because he did not need a termination on his record. Certainly, we believe it benefits the individual teacher to have the choice of resignation, and we will not deprive teachers of that choice in future cases. Nothing in the Act prohibits a school district from presenting these options to a teacher before initiating termination procedures.

We construe the General Assembly’s silence as tacit approval of our interpretation of section 6-17-1506’s delivery requirement as set forth in Teague, 315 Ark. 424, 868 S.W.2d 56. See, e.g., Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998). We will therefore defer any departures from the plain language of the Act to that legislative body. Small v. Cottrell, 332 Ark. 225, 964 S.W.2d 383 (1998).

Affirmed.

Newbern, J., not participating.