text:
    James CROSSLEY v. STATE of Arkansas
    CR 90-260
    802 S.W.2d 459
    Supreme Court of Arkansas
    Opinion delivered January 28, 1991

      William C. McArthur for appellant.

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

Appellant appeals from his convictions of possession of a controlled substance with intent to deliver and possession of drug paraphernalia for which he received fifty years imprisonment and fines of $60,000. He contends (1) the evidence was insufficient to sustain the convictions and (2) the trial court erred in refusing to grant a mistrial because of the prosecutor’s remarks during opening statement and of his questioning of one of the state’s witnesses. We find no merit in appellant’s contentions, and therefore, we affirm.

In considering appellant’s sufficiency of the evidence argument, we consider only the evidence that is favorable to the state and that supports the appellant’s convictions. See Summers v. State, 300 Ark. 525, 780 S.W.2d 541 (1989). Appellant’s arrest emanated from law enforcement officers’ attempt to effect a lawful search of a vacant house at which appellant was seen conducting a drug transaction. The search was triggered by police surveillance of the house, and the officers’ observation of the appellant giving cocaine to Jake Boone while both men were on the porch. When the officers approached the house, appellant was seen leaving out the back. Officer Robert Thomas pursued appellant and saw him enter a nearby trailer. After a young woman allowed Thomas to enter, he heard a commode flush. Thomas located the appellant in the bathroom where appellant was “hovered” over the toilet. When appellant saw Officer Thomas, he immediately closed and sat on the commode. After ordering appellant to get up, Thomas found green leafy vegetable material circling inside the toilet. Thomas also found around the bottom of the toilet a total of seven hard rock substances, which proved to be cocaine base. In the pat down search of appellant, Thomas obtained the keys to a red Pontiac Fiero which was parked nearby the house in which appellant had been observed making his drug exchange with Boone. After entering the car, officers found a rock of crack cocaine, various pieces of drug paraphernalia and a nine millimeter semi-automatic weapon loaded with twenty-one live rounds of ammunition.

Appellant argues that none of the drugs were found on his person, and the state’s evidence failed to show he was in possession of the drugs and paraphernalia with which he was charged. Such an argument is meritless. Neither exclusive nor physical possession is necessary to sustain a charge if the place where the offending substance is found is under the dominion and control of the accused. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). Put in other terms, the state need not prove that the accused had actual possession of a controlled substance; constructive possession is sufficient. Embry v. State, 302 Ark. 608, 792 S.W.2d 318 (1990). Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the accused and subject to his control. Id. Here, when Officer Thomas located appellant in the trailer, Thomas also found appellant attempting to destroy or conceal any evidence of controlled substance. Further, the controlled substances were then retrieved from an area which was immediately and exclusively accessible to appellant at that time. Such suspicious behavior coupled with appellant’s proximity with the contraband is clearly indicative of possession. See Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988); Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986).

The evidence, we conclude, also was sufficient for the jury to find the drugs and paraphernalia discovered in the Pontiac Fiero belonged to appellant. Officer Gorum had seen appellant driving the Fiero on a number of occasions. On the day of appellant’s arrest, Officer Gorum saw the appellant drive and park the Fiero at the house where he later conducted his drug transaction with Boone. Gorum observed no one else in the car with appellant. As noted earlier, the appellant possessed the keys to the Fiero vehicle, and after appellant’s arrest, those keys were used to open the vehicle. The ammunition found in the car was the same type found in the house used by the appellant for the drug deal with Boone. While circumstantial, such evidence may constitute substantial evidence and support a conviction. See Summers v. State, 300 Ark. 525, 780 S.W.2d 541 (1989). We believe the evidence was sufficient for the jury to conclude the Fiero and its contents were immediately and exclusively accessible to the appellant and subject to his control.

Next, appellant argues the trial court erred when it refused to grant a mistrial when the prosecutor mentioned in opening statement that the Fiero vehicle was registered to Alice Crossley, apparently a relative of appellant. As already discussed, evidence of appellant’s access to and control of the car and its contents was sufficient to support his convictions, and any reference to the car’s registration papers was not prejudicial error. Mistrial is an extreme and drastic remedy that should only be resorted to when there has been an error so prejudicial that justice could not be served by continuing the trial. Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990).

Appellant’s final point of error is that the court should have granted a mistrial when the state asked its witness, Jake Boone, if he had received threats in connection with his testimony. The witness never answered the question, and the trial court admonished the jury to completely disregard the question. Again, these circumstances fail to demonstrate any prejudicial error to the appellant.

Affirmed.


source: Caselaw Access Project

author: Robert L. Brown, Justice. Steele Hays, Tom Glaze, Justice,

license: Public Domain

text:
    Robert SHAW v. STATE of Arkansas
    CR 90-283
    802 S.W.2d 468
    Supreme Court of Arkansas
    Opinion delivered January 28, 1991

      William R. Simpson, Jr., Public Defender, Jerry J. Sailings, Deputy Public Defender, by: Didi H. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Robert Shaw was tried on May 15, 1989, for attempted murder, rape, and kidnapping. He was acquitted of the attempted murder charge, and the trial judge declared a mistrial on the rape and kidnapping charges due to the inability of the jury to reach a verdict and the illness of one juror. Defense counsel did not object to the mistrial declaration at that time, but did file a motion to dismiss on double jeopardy grounds on October 24, 1989. The motion was denied.

On December 18,1989, appellant was tried a second time on the rape and kidnapping charge. He was convicted of both offenses and sentenced to ten years for each conviction with the terms to run consecutively. Appellant appeals his convictions on two grounds: 1) the trial judge terminated the first trial prematurely and without the appellant’s consent so that double jeopardy attached, and 2) the force used by Shaw in the rape was insufficient to warrant a separate conviction for kidnapping.

We affirm the conviction for rape and reverse the kidnapping conviction.

Double Jeopardy

At the first trial on May 15, 1989, the jury began its deliberation at 6:05 p.m. and advised the judge at 9:30 p.m. that it had reached a verdict on one charge, but was split six to six and nine to three on the other two charges. The judge, in a lengthy statement, advised the jury that it needed to resolve the two remaining charges; he did not, however, specifically give the Allen instruction, AMCI 6004. In his statement to the jury the judge did say: “And if the issue still remains six and six then we’ll just have to live with that.” The judge also asked about the health of one juror, Mr. Brown, who answered that he had a prostate condition but was feeling better since he had “heaved a few times.”

At 10:15 p.m. the jury was called back into the courtroom by the judge and asked about the status of its deliberations. The judge was told that the jury had “sort of come to a stop” and Mr. Brown was “having some problems.” The judge then declared a mistrial on the two remaining charges. He was told that the one acquittal was on the attempted murder charge. The judge asked, after declaring a mistrial, what the status of the two remaining charges was. The foreman said eight jurors had voted not guilty and four jurors had voted guilty on rape, and ten jurors had voted not guilty and two jurors had voted guilty on kidnapping.

The decision to declare a mistrial due to a jury’s inability to reach a verdict is discretionary with the trial judge, and that decision will stand absent abuse of discretion. See McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986). We are not prepared to say the trial judge abused his discretion in the instant case.

The law on double jeopardy is set out by statute:

A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:
* * * *
(3) The former prosecution was terminated without the express or implied consent of the defendant after the jury was sworn. . . unless the termination was justified by overruling necessity.

Ark. Code Ann. § 5-1-112 (1987).

There is evidence in this case of “overruling necessity.” The jury had conferred for more than three hours without deciding the rape or kidnapping counts, and the foreman had said the jury “had sort of come to a stop.” The judge had also previously urged the jury to resolve the remaining counts though he did not specifically give the Allen instruction.

Equally as important as the deadlocked jury was the condition of one juror, Mr. Brown, who was physically ill. After the jury returned to the jury room at 9:41 p.m., the judge said: “I just heard that Mr. Brown was white as a sheet and it gave me concern.” When the jury came back in at 10:15 p.m., the foreman told the judge that the jury was still deadlocked on two charges and Mr. Brown was “having problems.” At that point the judge declared a mistrial.

Under Arkansas law it is well settled that either a deadlocked jury or the illness of a juror is a circumstance which qualifies as “overruling necessity.” See Potter v. State, 42 Ark. 29 (1883) (deadlocked jury); Atkins v. State, 16 Ark. 568 (1855) (illness of juror). The trial judge, who was in the best position to assess both circumstances, made his decision to declare a mistrial and the totality of the circumstances support that decision.

Kidnapping

Appellant also contests his kidnapping conviction on the basis that the state’s facts only show force associated with the rape offense and do not show independent restraint sufficient to justify an additional kidnapping conviction.

On this point appellant is persuasive, and the kidnapping conviction is reversed.

At trial, the state showed that appellant asked the victim for adateon March 10,1989. The two agreed to have dinner after the victim got off work at 4:30 on Friday afternoon, but instead of dinner the two went to a liquor store and purchased a fifth of whiskey and some soft drinks^ They had a drink of whiskey and, on the pretense that appellant was going “to purchase a part,” he drove the victim out into the country until they came to a camp site. There, they got out of the truck and turned on the radio for music. Somewhat later, appellant asked the victim if he could kiss her. She refused and he said that “he could just blow her head off and nobody’d ever find her.” When appellant said that, the victim began to walk down the road. Appellant got back in his truck, drove up beside her, and apologized. She got back into the truck and lit a cigarette. Appellant drove down the road at a high rate of speed to a dead end and told her to get out of the truck. At that point he pulled out a gun, and she fell to her knees. Appellant struck her in the face and made her stand up and take off her clothes. He then raped her on the tailgate of the truck.

Following the rape, the victim got back in the truck on her own volition, because she thought appellant was going to take her home. Appellant, however, ordered her out of the truck, according to the victim’s testimony, “so that he could get away before I went and squealed to the cops.” The victim then told appellant she knew he was going to kill her. She got out of the truck and ran into the woods with appellant firing at least one shot in her direction. Appellant may have followed her after this, but the victim by her own admission was hysterical.

To prove kidnapping the state must show that the offender has restrained another person so as to interfere substantially with her liberty with the purpose of engaging in sexual intercourse. Ark. Code Ann. § 5-11-102. Here, there was no substantial interference with liberty to warrant a separate conviction for kidnapping. By the victim’s own testimony her actions were consensual until appellant pulled a gun and forced her to take off her clothes.

These facts are distinguishable from those in a recent kidnapping case decided by this court. Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986). There, the victim was pulled into a car and driven to a different county where she was raped. En route, the victim was forced to commit oral sex. The forceable abduction and the extent of the travel over a period of time fall more readily into the category of kidnapping than the facts in the instant case. The same holds true of the fact situation in a second recent case. See Vick v. State, 301 Ark. 296, 783 S.W.2d 365 (1990). In Vick, the victim was held overnight and raped several times, which again distinguishes it from the facts in the instant case due to the period of time that the victim was restrained.

Here, the force began with the gun threat after appellant drove the truck to the dead end. The rape immediately ensued, after which the victim got back in the truck voluntarily. She got out of the truck only at appellant’s insistence and what transpires from that point forward is more suggestive of attempted murder — a charge for which appellant was acquitted — than kidnapping.

The restraint used in this case did not exceed restraint or force incident to the crime of rape. See Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988). The evidence is therefore insufficient to sustain a kidnapping conviction.

Affirmed in part; reversed and dismissed in part.

Hays, Glaze and Corbin, JJ., dissent in part.

Steele Hays,

dissenting in part. The issue is whether the evidence sustains appellant’s conviction for the crime of kidnapping independently of rape. The facts, in capsule, are these: The appellant drove the victim into the woods, taking along a pistol; at the first rebuff of his advances he told her, “I could blow you away and nobody would ever know it.” Indignant or frightened, or both, she walked away; the appellant followed and coaxed her back into the truck on assurances of good behavior only to then drive at high speed to a dead-end road, where he ordered her out, forced her to disrobe, and raped her on the tailgate of the truck. Finally, told to leave, she heard him fire a shot in her direction as she fled into the woods.

Granted, the victim’s presence was initially consensual, as the majority opinion notes, but she reentered the truck on assurances of proper conduct,which were promptly breached, and from that point, at least, there was a substantial interference with her liberty to a further point in time and distance where the rape occurred. I submit those facts constitute separate crimes of rape and kidnapping. Ark. Code Ann. § 5-11-102 (1987); Cook v. State, 284 Ark. 333, 681 S.W.2d 378 (1984). The judgment should be affirmed without modification.

Glaze, J., joins in dissent.

Corbin, J., joins.

Tom Glaze, Justice,

dissenting in part. I dissent on the court’s kidnapping holding. The majority court seems to premise its decision on the kidnapping conviction on the fact that she consented to being present on a gravel road in a rural area, where the rape took place. Such a conclusion is contrary to the facts, as I read them.

In viewing the evidence in the state’s favor, as this court is required to do, the facts show the appellant met the victim and during conversation, he offered to help get her a job at twice what she was making. He called her later and asked to take her to dinner so they could talk about the job. Subsequently, appellant picked up the victim at a bowling alley. He then drove to a liquor store where he bought liquor and cokes and made a telephone call. After his call, he said, “Work, work, I’ve always got to work.” Appellant then said that he had to go somewhere and pick up something. He then went to the highway and drove “a long way” and ended up in a forest and campsite where he stopped. Appellant asked the victim if he could kiss her, and she said no, she had a boyfriend. After the victim rejected appellant’s advances, he said that he could blow off appellant’s head and nobody would find her. The victim departed the truck and walked down the road in the direction from which they came. At this time, it was getting dark. Appellant pulled his truck alongside the victim and said he was sorry, and she should get in the truck because there were wild animals in the area. She got back in appellant’s vehicle. Appellant, after driving a short distance still in the rural area, stopped his vehicle and ordered the victim out. He got out, pulled a gun and told the victim to take off her clothes. He hit the victim in the face and then she undressed. He then raped her on the tailgate of the appellant’s truck.

From the above, the jury could have formed the opinion that the victim intended to talk to appellant over dinner about a job, but the appellant’s intentions were to have sex with her. Appellant, by lying about work necessitating him to pick up something, drove to a rural and deserted area where he raped the victim.

Contrary to the majority’s conclusion, the victim never consented to anything the appellant did from the point after she met him and went to a liquor store. Thereafter, everything else that took place was a part of appellant’s stealthy means to place his victim in a setting where he could rape her.

As we said in Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988), a person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with her liberty with the purpose (in this case) of engaging in sexual intercourse with him. See also Cook v. State, 284 Ark. 333, 681 S.W.2d 378 (1984). Here, appellant took the victim into a forest area at night, ordered her out of his truck, pulled a gun, hit her, ordered her to take off her clothes and raped her. If substantial interference was not imposed on the victim’s liberty in these circumstances, it is difficult to know how such interference with one’s liberty can ever be shown. Not only was she, without her consent, placed in a setting where she could not get away but also he hit her and then pulled his gun to further restrain her so he could perform the rape. In sum, I am of the view that the restraint used by the appellant far exceeded the restraint normally incident to the crime of rape. Summerlin, 296 Ark. 347, 756 S.W.2d 908.

Hays and Corbin, JJ., join this dissent.


author: Robert L. Brown, Justice. Jack Holt, Jr., Chief Justice,

text:
    STATE of Arkansas v. James L. BLEVINS
    CR 90-237
    802 S.W.2d 465
    Supreme Court of Arkansas
    Opinion delivered January 28, 1991

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellant.

      Campbell and Campbell, by: R. Scott Campbell, for appellee.
   Robert L. Brown, Justice.

The State of Arkansas files this interlocutory appeal from a decision by the trial court granting appellee James L. Blevins’ motion to suppress evidence seized on May 4, 1990.

The essential facts are not in dispute. During the early morning hours of May 4,1990, Investigator Tim Ryals of the Hot Springs Police Department purchased crack cocaine from an individual at a residence in Hot Springs. Ryals was under surveillance by other police officers during the transaction. Thereafter, the investigator signed an affidavit to support a search warrant authorizing a search of the residence for cocaine, drug paraphernalia, and cocaine money. Ryals and other Hot Springs police officers and detectives then tried to find a judge to issue the warrrant but discovered the regular judges were all unavailable due to attendance at a judicial council meeting out of town.

The officers next made contact with the prosecutor who advised them to go to Special Judge Ronald Naramore, who was serving as Special Circuit-Chancery Judge and who had been elected to that office by special election of local attorneys held on April 30,1990 — four days earlier. Special Judge Naramore was elected under the procedure provided in Section 21 of Article 7 of the Arkansas Constitution. The Special Judge issued the search warrant on the morning of May 4. Pursuant to that search warrant evidence was seized from the residence, including suspected crack cocaine, marijuana, a television set, and a VCR.

As a result of the search and the seizure of evidence, appellee was charged with possession of a controlled substance with intent to sell and theft by receiving, due to the fact that the television set found at his residence had allegedly been stolen.

A motion to suppress all evidence seized was filed by appellee on May 27, 1990, and on July 2, 1990, the motion was heard by Circuit Judge Tom Smitherman. Statements were made by counsel for the parties, and testimony was taken from the officer and detectives who obtained the search warrant and then served it. All three testified that they believed Ronald Naramore to be the acting Special Circuit-Chancery Judge with the authority to execute the search warrant. Judge Smitherman issued a letter opinion on July 24, 1990, granting the motion to suppress and concluding that since the appellee’s case was not pending before Special Judge Naramore at the time of his election on April 30, 1990, the Special Judge did not have the authority under Section 21 of Article 7 to issue the search warrant on May 4, 1990.

In reviewing a trial judge’s ruling on a motion to suppress, we ordinarily make an independent determination based upon the totality of the circumstances, and we reverse only if the ruling is clearly against the preponderance of the evidence. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). Here, the points raised for reversal are more legal than factual in nature.

Appellant makes several arguments on appeal, but the argument we find persuasive is the good faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897 (1984). In Leon, officers had served a search warrant on the good faith belief that it was validly issued by the magistrate. As it happened, the affidavit establishing probable cause was insufficient, and the district court suppressed the resulting evidence. The Court of Appeals affirmed, but the Supreme Court reversed and recognized an exception to the exclusionary rule where the officers, in good faith, rely on the judge’s probable cause decision and the technical sufficiency of the search warrant. The court added that the reliance must be objectively reasonable.

We have specifically recognized the good faith exception in Arkansas and applied it. See Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988). Nothing in the record suggests that the officers in this case acted other than in an objectively reasonable manner. And nothing in the record suggests they had any doubts about the technical sufficiency of the search warrant. The procedure the officers followed substantiates this:

1. They conducted a surveillance of the residence and completed an undercover transaction.

2. They sought out a judge for a search warrant immediately following the transaction but found no regular judge available.

3. They contacted the prosecutor who advised them to call Special Judge Naramore for the warrant.

4. They visited Special Judge Naramore in the early morning hours, obtained the search warrant and proceeded to act upon it.

It is obvious from these facts that not only the officer and detectives but also the prosecutor believed Special Judge Naramore had the authority to issue the warrant.

At the hearing to suppress, Officer Michael Smith was questioned about Special Judge Naramore:

Q. All right, did you believe that Ron Naramore at that time was the Special Acting Judge?
A. Yes, sir. I knew him to be acting as a circuit/ chancery judge, so. . . .
Q. And that being: Was it your understanding that Judge Naramore had the authority to execute the warrant?
A. Yes, sir. To sign the warrant, yes sir, it sure was.

The testimony of the two detectives is much the same.

For the foregoing reasons, we believe the trial judge’s decision granting the motion to suppress must be reversed.

Since we reverse on the basis of the good faith efforts of the officers and the objective reasonableness of their belief that the search warrant was valid, we do not reach the issue of the special judge’s authority to issue a search warrant in a case not pending before him.

Reversed.

Holt, C.J., concurs.

Jack Holt, Jr., Chief Justice,

concurring. I concur in the results reached by the majority; however, I find the threshold question to be the special judge’s authority to issue a search warrant rather than the good faith efforts of the officers in serving the warrant. The good faith exception to the exclusionary rule, as enumerated in United States v. Leon, 468 U.S. 897 (1984), relates to the validity of an issued warrant rather than the judicial authority of the party issuing the warrant.

Under the circumstances, I think we are required to examine the authority of the court before we consider the validity of its warrants. The trial court granted the appellee’s motion to dismiss on the basis that the appellee’s case was “not pending before Special Judge Naramore at the time of his election on April 30, 1990, [and that] the Special Judge did not have authority under Section 21 of Article 7 to issue the search warrant on May 4, 1990.” I would address the court’s finding and disagree.

Suffice it to say that Section 21 judges are elected “to preside at such court” and carry with them “the same power and authority in said court as the regular judge would have had if present and presiding. . . .” Ark. Const, art. 7, § 21. This power and authority must mean more than the simple authority to hear pending cases. Otherwise a specially elected judge cannot fully meet the emergency needs of the judicial district in a case where the regular judge has resigned or permanently disqualified, and the permanent vacancy has not been filled by execute appointment under Amendment 29.

Judge Naramore had authority to issue the warrant in question.


author: Robert L. Brown, Justice. David Newbern, Justice, Robert L. Brown, Justice. David Newbern, Justice,

text:
    Robert Christian WALKER v. STATE of Arkansas
    90-243
    803 S.W.2d 502
    Supreme Court of Arkansas
    Opinion delivered January 28, 1991
    [Supplemental Opinion on Denial of Rehearing March 18, 1991.]

      Pierce, Stanley & Robinson, by: Robert L. Pierce, for appellant.

      Ron Fields, Att’y Gen., C. Kent Jolliff, Asst. Att’y Gen., for appellee.

      Dudley, Newbern, and Corbin, JJ., would grant rehearing.

   Robert L. Brown, Justice.

This case comes to us on an interlocutory appeal from the trial court’s denial of appellant Robert Christian Walker’s motion to transfer his case to juvenile court.

We affirm the decision to deny the transfer.

The facts, though sketchy at this initial stage of the criminal process, are gleaned from the criminal information, testimony from appellant’s witnesses at the hearing on the motion to transfer held on August 13, 1990, and statements of counsel for appellant and the prosecuting attorney. The criminal information reads:

Chris Piazza, Prosecuting Attorney of the Sixth Judicial District of Arkansas, in the name, by the authority, and on behalf of the State of Arkansas charges ROBERT CHRISTIAN WALKER a/k/a ROBERT CHRISTOPHE WALKER a/k/a/ CHRIS WALKER with the crime of violating Ark. Code Ann. § 5-10-102 MURDER IN THE FIRST DEGREE committed as follows, to-wit: The said defendant(s), in Pulaski County, on or about June 25, 1990, unlawfully, feloniously, and with a purpose of causing the death of another person, did cause the death of EDWARD C. COOPER by shooting him to death, against the peace and dignity of the State of Arkansas.

The prosecutor fleshed out these facts somewhat by his statement to the court at the hearing:

... we expect to be able to show that while Mr. Walker came to the scene, he took a 22 rifle from another person, asked to use it, fired once into the pond there, the lake, and then made a statement that he was going to shoot a nigger. And other folks will testify that they heard that. He aimed the rifle and fired, and Mr. Edward C. Cooper fell dead. The State has charged first degree murder under the theory that that was a purposeful act in aiming the weapon.

Mr. Pierce, appellant’s defense counsel, responded by saying: “There has been some distorted publicity about who made the statement, how it was made, under what circumstances . . . .’’He then emphasized two factors to negate any premeditation on appellant’s part. First, the rifle involved was not appellant’s rifle and was not brought to the scene by him. Secondly, an investigative report received by Mr. Pierce from the prosecutor showed that the distance from the point where the shot was fired to where Mr. Cooper was standing was 532 feet.

Other essential facts such as the exact location of the incident, the persons present, the time of day, and prior contact between appellant and Mr. Cooper, if any, were not presented to the trial court at the hearing and are not part of the record on review.

In support of his motion, appellant presented the testimony of seven witnesses who testified that he was “an average fourteen-year-old” and was polite, helpful, honest, and a good neighbor. He was further described as “a good kid” who played baseball and liked to fish and who had shown no previous tendency toward violence or racial hatred. Appellant’s mother testified that appellant had never made a racial slur and that the family lived in a racially mixed neighborhood. She added that appellant had never owned a gun or gone hunting and that since the incident appellant had been in counseling with a psychologist.

After the testimony from appellant’s witnesses and statements by counsel for both sides, the trial judge read the applicable statute, Act 273 of 1989 [Ark. Code Ann. § 9-27-318 (Supp. 1989)], and then said:

All right, counsel, we’re acting under 90-27-318 [sic] which states that when a case involves a juvenile aged 14 or 15 years at the time the delinquent act occurred, the Prosecuting Attorney has the discretion to file charges in Circuit Court for an alleged act which constitutes capital murder, murder in the first degree, murder in the second degree, kidnapping, aggravated robbery, or rape. This Court shall hold a hearing within 90 days of the filing of the charges to determine whether to retain jurisdiction of the juvenile in Circuit Court or to waive jurisdiction and transfer the case to Juvenile Court. Then further on down in making the decision to retain jurisdiction or transfer the case, the Court shall consider the following factors. One, the seriousness of the crime and whether violence was employed in the commission of the offense. Two, whether the offense is part of repetitive pattern of adjudicated offenses. Three, prior history, character traits, mental maturity and any other factor which reflects upon the juvenile’s prospects for rehabilitation. Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the Court shall enter an order to that effect. That’s what we’ve been doing here this morning, and those are the factors that the Court does consider. Defense has called some good folks to bear upon factors two and three. Counsel, I would agree that any violent death is always tragic and serious. And in commenting upon these factors or making findings upon these factors. I’m seriously limited by the fear of commenting on the evidence which may later come to light in the case. I don’t think — I also agree that the case is not simple or straightforward. There are differences between counsel in what exactly happened, but, based upon this statute, 90-27-318 [sic], the factors the Court should consider, the testimony offered at trial here today, the statements of counsel, this Court feels by clear and convincing evidence that these facts and circumstances should be determined by a jury and not by juvenile. Your Motion to Transfer is hereby denied.

Act 273 controls the procedure in juvenile transfer cases. It reads in pertinent part:

(b)(1) When a case involves a juvenile age fourteen (14) years or fifteen (15) years at the time the alleged delinquent act occurred, the prosecuting attorney has the discretion to file charges in circuit court for an alleged act which constitutes capital murder, murder in the first degree, murder in the second degree, kidnapping in the first degree, aggravated robbery, or rape.

(2) The circuit court shall hold a hearing within ninety (90) days of the filing of charges to determine whether to retain jurisdiction of the juvenile in circuit court or to waive jurisdiction and transfer the case to juvenile court.
(d) Upon the motion of the court or of any party, the judge of the court in which a delinquent petition or criminal charges have been filed shall conduct a hearing to determine whether to retain jurisdiction or to transfer the case to another court having jurisdiction.
(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(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 the 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.
(f) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.

In most significant respects, Act 273 is a combination of two previous Arkansas statutes which were repealed with the adoption of Act 273 in 1989. See Ark. Stat. Ann. §§ 41-617 and 45-420 (Supp. 1985). One important addition incorporated into Act 273 by the Arkansas General Assembly was the requirement that a finding to retain a juvenile in circuit court be based upon clear and convincing evidence.

Appellant first asserts on appeal that though he filed the motion to transfer the case to juvenile court, the prosecutor had the burden of proving that the case should remain in circuit court. He focuses particularly on paragraph (f) of Act 273 which requires that a trial court’s finding to retain jurisdiction be by clear and convincing evidence. Appellant argues that because the prosecutor filed the charge against him in circuit court and resisted the transfer, he had the burden of proving to the trial court that appellant should be tried as an adult. But the statute does not say that. Rather, the statute says the finding by the court to try a juvenile as an adult must be by clear and convincing evidence. It is silent on which party has the burden of proof.

We think the better rule is that the moving party seeking to transfer a defendant from one jurisdiction to another has the burden of justifying that transfer by proof and persuasion. That certainly comports with the general proposition in law that the party seeking to establish a proposition has the burden of proving it. Edwin F. Armstrong & Co. v. Ben Pearson, Inc., 294 F. Supp. 163 (D.C. Ark. 1968), aff'd Leisure Group, Inc. v. Edwin F. Armstrong & Co., 404 F.2d 610 (8th Cir. 1968). Other jurisdictions have so held in juvenile transfer cases. In 1990 the Superior Court of Pennsylvania held in a murder case that to effectuate a transfer of a juvenile to juvenile court, the juvenile offender had to present proof to show that he met the criteria for transfer. Commonwealth v. Leatherbury, 568 A.2d 1313 (Pa. Super. 1990); see also H.W. v. State, 759 P.2d 214 (Okla. Crim. App. 1988) (statute held constitutional which shifted burden of proof to juvenile to justify transfer).

Our conclusion that appellant had the burden of offering proof and persuading the trial court on his motion is not inconsistent with the statutory mandate that a trial court reject a transfer to juvenile court only upon a finding of clear and convincing evidence. Appellant still has the burden of going forward with proof to show he meets the criteria of the statute to warrant transfer. If he meets that burden, the transfer is made. Under Act 273 he only fails if there is clear and convincing countervailing evidence to support a finding that the juvenile should remain in circuit court.

In this case the trial court found there was countervailing evidence which was clear and convincing. We have defined clear and convincing evidence as “that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.” Kelly v. Kelly, 264 Ark. 865, 870, 575 S.W.2d 672, 676 (1979). However, as appellant underscores, no direct testimony or other evidence was presented by the prosecutor to support retention of appellant in circuit court. All that was before the trial court in the way of evidence to warrant retention was the criminal information which was part of the court’s record in this case and which, therefore, was subject to judicial notice by the trial court. A.R.E. Rule 201(b). Oral statements and arguments by counsel do not qualify as evidence for purposes of the trial court’s finding. The criminal information does qualify as evidence to be considered by the trial judge. What the criminal information evidences is that a charge of first degree murder has been filed by the prosecutor against appellant. The criminal information itself, of course, is not evidence of the fact that the crime charged was actually committed.

There is, admittedly, a paucity of evidence supporting the trial court’s finding of clear and convincing evidence. Nevertheless, there is some evidence in the form of the criminal information which highlights the seriousness of the offense and the fact that violence was used which are factors to be considered in the trial court’s decision. Ark. Code Ann. § 9-27-318(e)(1). There is no question but that the trial judge gave considerable weight to the seriousness of the offense and the violence alleged in his decision. Indeed, he says so: “Counsel, I would agree that any violent death is always tragic and serious.”

We have previously held that abuse of discretion is the standard for review of the trial court’s decision in juvenile transfer cases. Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986); Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985). In examining discretionary decisions we have further stated: “. . . the question is not what we would have done, but whether, as a matter of law, discretion was abused—was the judgment call arbitrary or groundless?” Looper v. Madison Guaranty Savings & Loan Ass’n, 292 Ark. 225, 228, 729 S.W.2d 156, 157 (1987). We are not prepared to say that the trial court’s decision was groundless in this case or that he abused his discretion.

Nor do we agree with appellant’s argument that the trial judge failed to consider all of the factors set out in Act 273. On the contrary, the trial judge says he did: “That’s what we’ve been doing here this morning, and those are the factors that the court does consider.” There is nothing in the record to suggest the trial court did anything other than carefully consider the criminal information and testimony of appellant’s witnesses in making his decision. To the extent appellant is arguing that the trial judge should have given equal weight to each factor in this case under Act 273, we have previously held that the court need not give equal weight to each factor in juvenile transfer cases and, further, that proof need not be introduced by the prosecutor against the juvenile on each factor. Hallman v. State, 288 Ark. 448, 706 S.W.2d 381 (1986); Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986).

Further error is assigned by appellant to the trial court’s failure to make findings of fact supporting his decision or to cite a specific rationale for refusing the transfer. Again, prior holdings in juvenile transfer cases militate against that requirement, and we are not convinced that a reversal of these cases is warranted. See Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986); Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985). As we said in Evans:

Although it would be preferable for a trial court judge to state the reasons for his decision, there is no statutory requirement that he do so.

287 Ark. at 143, 697 S.W.2d at 883.

In sum, the trial court found that the seriousness of the crime and the violence attached to it as set out in the criminal information outweighed the other Act 273 factors such as lack of repetitive pattern and positive character traits which were proven by appellant at the hearing. While it might have been desirable and even preferable for the prosecutor to present additional evidence at the hearing to support retaining appellant in circuit court, we hold that the criminal information provided a sufficient basis for the trial court’s decision.

Affirmed.

Dudley, Newbern and Corbin, JJ., dissent.

David Newbern, Justice,

dissenting. Two of the court’s conclusions trouble me. I question whether the general assembly intended that the burden of proof be on the juvenile as the moving party and whether the “clear and convincing evidence” required to retain the case in circuit court can be achieved when the state offers nothing other than the charge.

1. The burden of proof

The majority opinion is correct in asserting that Act 273 of 1989 draws upon prior statutes, Ark. Stat. Ann. § 41-617 (Supp. 1985) and Ark. Stat. Ann. § 45-420 (Supp. 1985). The change, however, is a little more significant than that suggested by the majority.

Section 45-420 set out the criteria for transfer of cases from juvenile to circuit court proceedings and vice versa. The criteria are the same as those contained in Act 273. Subsection (f) of Act 273, however, is an entirely new provision. It is as follows: “Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.” Unlike the old law, the decision to be reached is not whether there is to be a “transfer to another court having jurisdiction,” § 45-420; the decision to be reached is whether there is “clear and convincing evidence that a juvenile should be tried as an adult.” The reference to “clear and convincing evidence” is thus not the only new aspect of the law. After the prosecutor has exercised his discretion to charge the juvenile in the circuit court, the court must decide “by clear and convincing evidence that a juvenile should be tried as an adult.” (Emphasis supplied.)

The new statutory language suggests the burden is on the state. If the juvenile has moved to transfer the case to juvenile court, only one party will be offering evidence “that a juvenile should be tried as an adult,” and that is the state.

The court in Commonwealth v. Leatherbury, 568 A.2d 1313 (Pa. Super 1990), was not free to decide the burden of proof issue because a Pennsylvania statute, 42 Pa.C.S.A. § 6322(a) specifically provided in relevant part:

“In determining whether to transfer a case charging murder, the court shall apply the criteria in section 6355(a) (4)(iii)(A) (relating to transfer to criminal proceedings) . However, the child shall be required to show the court that the child is amenable to treatment, supervision or rehabilitation as a juvenile by meeting the criteria listed in section 6355(a)(4)(iii)(A)

The case was one in which murder was charged, and thus the burden of proof was clearly established by the statute. The case thus presents no useful authority in a jurisdiction like Arkansas where there is no such provision.

The same is true of H.W. v. State, 759 P.2d 214 (Okl.Cr. 1988). There, the juvenile was charged as an adult with three counts of murder, and she sought certification as a child in accordance with 10 O.S.Supp.1986, § 1104.2. Subsection A. of that section of the Oklahoma Statutes provides that a person 16 or 17 years old charged with murder “shall be considered as an adult.” The juvenile then may, under subsection C. of that section of the statute move for certification as a child. Thus, it is clear that the decision the Oklahoma judge must make is the mirror image of that of a judge under our statute. The Oklahoma judge must decide that the juvenile should be tried as a juvenile, rather than that the juvenile will be tried as an adult.

2. The state’s evidence

If the court can rely on nothing but the charge and decide that a juvenile is to be tried as an adult in any case in which a serious offense is alleged, then there is no need for the other criteria. If the Arkansas General Assembly had intended that the court have the power to try a juvenile as an adult anytime a serious offense involving violence was alleged, it would have said so. Instead, it set out the three criteria quoted in the majority opinion. By creating the “clear and convincing evidence” standard as the basis for finding that a juvenile should be tried as an adult, the Arkansas General Assembly must have contemplated evidence in excess of the charge. While it is true that the charge is “evidence,” I cannot elevate it to “clear and convincing evidence.”

805 S.W.2d 80

Except for the charge or information, all of the evidence in this case with respect to the statutory criteria was on the other side.

Because this is our first opportunity to consider this issue, I would not simply reverse and remand this case for trial in the juvenile court. I would remand it to the trial court for rehearing in order to permit the state an opportunity to present “clear and convincing evidence that a juvenile should be tried as an adult.”

I respectfully dissent.

Dudley and Corbin, JJ., join in this dissent.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

MARCH 18, 1991

Pierce Stanley & Robinson, by: Robert L. Pierce, for petitioner.

Ron Fields, Att’y Gen., C. Kent Jolliff, Asst. Att’t Gen., for respondent.

Robert L. Brown, Justice.

Petitioner Robert Christian Walker prays for rehearing and urges further consideration of two subsections of the Arkansas Juvenile Code — Act 273 of 1989:

(b)(1) When a case involves a juvenile age fourteen (14) years or fifteen (15) years at the time the alleged delinquent act occurred, the prosecuting attorney has the discretion to file charges in circuit court for an alleged act which constitutes capital murder, murder in the first degree, murder in the second degree, kidnapping in the first degree, aggravated robbery, or rape.
(2) The circuit court shall hold a hearing within ninety (90) days of the filing of charges to determine whether to retain jurisdiction of the juvenile in circuit court or to waive jurisdiction and transfer the case to juvenile court.
(d) Upon the motion of the court or of any party, the judge of the court in which a delinquency petition or criminal charges have been filed shall conduct a hearing to determine whether to retain jurisdiction or to transfer the case to another court having jurisdiction.

Ark. Code Ann. §§ 9-27-318(b), (d) (Supp. 1989).

Where fourteen and fifteen year olds are involved and where serious charges have been filed, as defined, a hearing must be held within ninety days under subsection (b)(2). This subsection only deals with the time frame of the hearing and the fact that a hearing is required for this age group. The subsection is silent on how to commence the hearing process.

Subsection (d), however, explains that the process is commenced on motion of either party or motion of the court. When counsel for petitioner filed his motion in circuit court to determine jurisdiction and the property of transfer, he did so under the authority of this section. It is conceivable that counsel for a fourteen-year-old client will not file a motion — it is not mandatory under subsection (d) — in which case the court would commence the hearing within ninety days on his own motion.

A moving party has the burden of going forward with proof to support his motion. If his motion is substantive such as moving for the transfer of a case to juvenile court, it is incumbent upon the moving party to present proof in support of that motion.

Irrespective of whether a motion is filed or whether the prosecutor or defense attorney has the burden of proof, the crux of a juvenile transfer case is the finding made by the trial court:

(f) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.

Ark. Code Ann. § 9-27-318(f) (Supp. 1989). A moving party’s burden of proof is separate and apart from the standard of clear and convincing evidence which the trial court must find. Which party has the burden of proof, in and of itself, does not determine whether the trial court will find that clear and convincing evidence exists. The ultimate issue under the statute is not who has the burden of proof or who must meet that burden of proof. Indeed, the statute is silent on this point. The issue, rather, is whether the trial court finds clear and convincing evidence.

Petitioner called seven witnesses to support the positive factors under Ark. Code Ann. § 9-27-318(e) (Supp. 1989). The prosecutor’s countervailing proof was the information itself which was evidence that a charge had been filed which accused the petitioner of committing a serious offense and using violence in the process. The trial court found the information sufficient to meet the arduous standard of clear and convincing evidence. We affirmed the trial court’s decision.

This does not mean that the mere filing of an information will qualify as sufficient evidence in every instance. Allegations in the information will vary based on the offense charged as will the positive factors presented at hearing in support of the transfer.

We have held in previous juvenile transfer cases that the standard of review for this court is abuse of discretion. See Asking v. State, 288 Ark. 75, 702 S.W.2d 20 (1986); Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985). We affirmed that standard in our previous decision in this case. See Walker v. State, 304 Ark. 393, 797 S.W.2d 442 (1991). We were incorrect, however, in affirming abuse of discretion as the standard for juvenile transfer appeals, because Act 273 of 1989 changed the law and now requires the trial court to support a juvenile transfer decision by a finding of clear and convincing evidence. See Ark. Code Ann. § 9-27-318(f) (Supp. 1989). The circuit judge made such a finding in this case. Findings of fact by a trial court will not be set aside unless clearly erroneous. ARCP Rule 52(a) (1990). We are not prepared to say that the judge’s finding of clear and convincing evidence was clearly against the preponderance of the evidence.

For the foregoing reasons the petition for rehearing is denied.

Petition denied.

Dudley, Newbern, Corbin, JJ., dissent.

David Newbern, Justice,

dissenting. The petition for rehearing in this case makes it clear that the Court’s original opinion unduly emphasized the “moving party” rationale. The statute requires a hearing to determine whether there is “clear and convincing evidence that a juvenile should be tried as an adult” even if there is no “moving party.” Again the Court ignores the import of the words “should be tried as an adult” which explains the issue to be decided. Again I contend those words show the General Assembly’s intent that the State have the burden. That becomes even clearer in light of a point made in Walker’s petition for rehearing that henceforth a juvenile will simply make no motion for transfer and await a hearing instigated by the State or a judge. How will this Court then handle its decision that the “moving party” has the burden of proof on the issue?

Assuming the matter is disputed, surely the State will take the affirmative on the statutory proposition that the juvenile “should be tried as an adult.” Additionally, if we are to use a “moving party” rationale, we should recognize that the State, by filing the case in the Circuit Court is the party “moving” that the juvenile be tried as an adult.

Now that we have recognized that the standard of review is not whether the trial judge abused his discretion, it should be clearer that some facts other than the charge are to be presented in support of a ruling that a juvenile “should be tried as an adult.” The cases cited in the Court’s original opinion in support of the “abuse of discretion” standard of review were ones decided before the adoption of Act 273 of 1989 containing the language setting the issue to be decided as whether there is “clear and convincing evidence that a juvenile should be tried as an adult.” In Midgett v. Arkansas Dept. of Human Services, 301 Ark. 491, 785 S.W.2d 21 (1990), we pointed out that where an issue was one a trial court could decide in its discretion, a “clear and convincing evidence” standard would be “inappropriate.”

When a chancellor or a judge sitting without a jury is to determine facts by clear and convincing evidence, the standard of review is whether the trial court’s decision was clearly erroneous. Gibson v. Boling, 274 Ark. 53, 622 S.W.2d 180 (1981); Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980).

The issue whether a juvenile “should be tried as an adult” is not “factual” in isolation, and yet by setting forth the factual criteria for making that determination and by adding the “clear and convincing evidence” standard, the General Assembly has made the ultimate decision one which is to be based on facts rather than judicial discretion. The majority opinion on denial of rehearing acknowledges the standard of review to be whether the judge’s decision was clearly erroneous or clearly against the preponderance of the evidence, citing Ark. R. Civ. P. 52(a).

Rule 52(a) provides, in pertinent part, “Findings of fact. . . shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence) . . . .” Where are the facts bearing on the statutory criteria for finding by “clear and convincing evidence that [the] juvenile should be tried as an adult?” Here are the criteria stated in Ark. Code Ann. § 9-27-318(e) (Repl. 1991):

In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(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 the 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.

Nothing, other than the charge, was presented by the State. As was pointed out in our earlier opinions, there was considerable testimony presented by the juvenile on various aspects of factors (2) and (3), .all of it favorable to the juvenile.

In First National Bank v. Rush, 30 Ark. App. 272, 785 S.W.2d 474 (1990), our Court of Appeals recited this definition:

Clear and convincing evidence is evidence by a credible witness whose memory of the facts about which he testified is distinct, whose narration of the details is exact and in due order, and whose testimony is so direct, weighty, and convincing as to enable the factfinder to come to a clear conviction, without hesitance, of the truth of the facts related. It is simply that degree of proof that will produce in the trier of fact a firm conviction of the allegations sought to be established.

While our job is not to determine on appeal whether there was clear and convincing evidence or whether the trial court abused its discretion we must decide whether the trial court clearly erred in making the determination. If the determination was not clearly erroneous when all the evidence but for the charge was on the side of trying the juvenile as a juvenile, then how could we ever hold a decision that a juvenile, charged in Circuit Court, should be tried as such is clearly erroneous? If we can never make such a decision, then why did the General Assembly not simply require that any juvenile charged with a serious offense be tried as an adult?

It was clearly erroneous for the trial court to determine that Walker should be tried as an adult based solely on the charge. But for the charge filed by the State, all evidence was contrary to the trial court’s holding. This decision means that any time a serious charge is filed against a juvenile, the court may, without more, and in spite of the statutory criteria for making the decision, decide to try the juvenile as an adult. The General Assembly has recognized that juveniles are to be treated differently unless they fit certain criteria. All we know about the juvenile in question here is that there was strong evidence that nearly all of the statutory criteria were met by him, and yet we affirm the trial court’s decision to try him as an adult solely because he is alleged to have committed a serious offense. We allow the State to shirk its responsibility to present evidence because of a “moving party” rationale which counsel for juveniles will be able to manipulate by simply making no motion to transfer. In the next case that comes to us on this issue, the State or the judge will have called for the hearing, and the juvenile will be able to sit tight until the State has presented “clear and convincing evidence that the juvenile should be tried as an adult.” It is unfair to treat the juvenile in this case differently.

This case should be remanded and the State given an opportunity to present “clear and convincing evidence that the juvenile should be tried as an adult.”

I respectfully dissent.

Dudley and Corbin, JJ., join in this dissent.


author: Donald L. Corbin, Justice. Tom Glaze, Justice,

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. Dierdre CLARK, et al.
    90-316
    802 S.W.2d 461
    Supreme Court of Arkansas
    Opinion delivered January 28, 1991

      Stephen C. Sipes, Chief Counsel, for appellant.
    ' Central Arkansas Legal Services, by: Griffin J. Stockley, for appellee.
   Donald L. Corbin, Justice.

The Arkansas Department of Human Services (hereinafter referred to as DHS) appeals from a May 1, 1990, Order of the Juvenile Division of the Pulaski County Chancery Court. The May 1 Order directed DHS to take various actions with respect to appellees Dierdre Clark and her two sons. DHS asserts two points of error in the May 1 Order. As we are not persuaded that the juvenile court erred, we affirm.

. The juvenile court took jurisdiction of this case on December 16, 1988, when Dierdre Clark contacted Pulaski County Children and Family Services, a division of DHS, and stated she wanted to place her two children, Jonathan and Joseph, for adoption. At that time Joseph was one month short of his sixth birthday and Jonathan was two weeks away from his third. In an emergency order entered December 16,1988, the court found the boys to be dependent children and removed them from the custody of their mother. The boys were placed in foster care and remained there for the next thirteen months. Subsequent to the December 16 hearing Ms. Clark contacted DHS staff and stated that she changed her mind and wished to work toward stabilizing her life circumstances so as to resume custody of the boys. During the period the boys were in foster care they both attended counseling sessions at the University of Arkansas Medical Center and Ms. Clark received counseling from a certified social worker at the Community Mental Health Center. Ms. Clark was diagnosed as having dysthymia, a chronic mental illness for which the medication Prozac was prescribed.

At a January 11, 1990, hearing Carol Balmaz, the assigned caseworker from Pulaski County Children and Family Services, submitted a report in which she recommended the children be returned to the custody of their mother. The children were returned by an order of the court filed that same day. An order entered February 20, 1990, included the findings and orders of the January 11 hearing. This order directed that a program of counseling be initiated for the children and their mother through Centers for Youth and Families, Elizabeth Mitchell Children’s Center; that Ms. Clark maintain both her prescribed medication therapy and her contact with her community mental health case manager; that DHS staff calculate Ms. Clark’s total present economic need under existing agency policy; and that DHS maintain a services case with the family and provide transportation assistance to the family to facilitate the children’s counseling. The order continued jurisdiction of the cause and scheduled further review for April 5, 1990.

Following a hearing held April 5, the court entered the Order of May 1,1990, from which this appeal is taken. In this order the court left custody of the two juveniles with their mother; noted that although DHS provided reasonable services, the majority of the casework services were provided by the community mental health therapist rather than the assigned caseworker from the division of Children and Family Services; directed DHS to pay for medication which was prescribed for the mother but not included on the Medicaid listings for reimbursement; directed DHS to provide transportation in the form of bus tokens or bus credits each month for each individual family member; directed DHS to transport the mother to community agencies or individuals that provide food; found that continued financial problems existed for the family; ordered DHS to provide the remainder of the full entitlement of preventive funds to the mother; and continued jurisdiction of the cause.

Appellant raises the following points for reversal: 1) the court erred when it specifically found that DHS did not provide transportation as ordered by the court in the previous court order and determined that DHS did not provide reasonable efforts at services; and 2) the court erred when it ordered DHS to make cash disbursements in violation of administrative agency policy and in excess of allocated funding.

In support of its first point appellant argues that the court’s finding regarding transportation and reasonable efforts is a factual finding that is not supported by the evidence. This argument is premised on a finding that simply does not exist. That portion of the order to which appellant refers is as follows:

5. The Court notes from the outset that the Department of Human Services have [sic] provided reasonable services in that the Community Mental Health Therapist, Lynn Pierce, has provided counseling and therapy to the mother, rehabilitation referral, application for SSI benefits, referral for parenting classes, and has transported the mother for purposes of obtaining food, appointments and other necessities. However, the Court further notes that the Department of Human Services did not provide reasonable efforts at services in that the majority of the case work services were provided by Ms. Pierce, rather than the assigned caseworker in this matter, who made referrals for financial services and parenting classes only.

In this finding the juvenile judge merely states that the services were provided by the community mental health therapist rather than the assigned caseworker from Children and Family Services. Both the therapist and the caseworker are employees of divisions of DHS, therefore, a finding that DHS did not provide reasonable efforts or transportation simply was not made. Because there is no such finding, DHS presents no justiciable issue in its first point.

In support of its second point, DHS contends that the May 1, 1990, Order compels it to disburse cash funds from the Income Assistance Program in violation of at least two of its criteria governing disbursement of funds. Appellant also asserts that what effectively has occurred during the course of proceedings conducted pursuant to provisions of the Arkansas Juvenile Code of 1989 is a separate judicial review of an administrative agency where no independent judicial action or review may lie. We disagree.

Following the passage of Amendment 67 to the Arkansas Constitution, the 77th General Assembly in Act 294 of 1989 defined jurisdiction of matters relating to juveniles and conferred such jurisdiction upon a newly created juvenile division of chancery court. DHS, the administrative agency primarily responsible for dealing with children and families, was also created by an act of the General Assembly. There is no clear delineation of the relationship of these two creatures of statute.

The jurisdictions of the juvenile court and DHS overlap in numerous and varied areas. One such area involves family services, which is defined in the Juvenile Code at Ark. Code Ann. § 9-27-303(17) (Supp. 1989) as:

“Family services” means relevant services, including, but not limited to: child care; homemaker services; crisis counseling; cash assistance; transportation; family therapy; physical, psychiatric, or psychological evaluation; counseling; or treatment, provided to a juvenile or his family. Family services are provided in order to:
(A) Prevent a juvenile from being removed from a parent,. . .[.]

Ark. Code Ann. § 9-27-328(a) (Supp. 1989) provides the juvenile court is to order family services to avoid the necessity of removing a juvenile from his home. The Juvenile Code refers to DHS as the administrative agency responsible for providing family services. While DHS promulgates and implements its policies and rules pursuant to the Administrative Procedure Act, Ark. Code Ann. §§ 25-15-201 to -214 (1987 and Supp. 1989), as it states in its brief, the “ [w]ritten criteria have been developed to aid casework staff in requesting income assistance as a preventive service or a reunification service.” The need for such criteria is obvious for use within the department. However, no where in the Juvenile Code is there a provision that even arguably requires the juvenile court to fashion its orders within the policy guidelines of DHS.

The services ordered by the court of which DHS complains, those pertaining to transportation and financial assistance, are among those included in the definition of family services. Clearly the court’s action here is that which it is permitted to take pursuant to Ark. Code Ann. § 9-27-328(a). Furthermore, we note that the court did not order DHS to disburse a greater amount in funds than the maximum allowable under its policies. We also note that DHS neither claimed that funds were not available, nor offered evidence of such.

As to the contention of DHS that the Juvenile Code in essence establishes a judicial review of an administrative agency where no review lies, we cannot agree. The Juvenile Code sets out affirmative requirements designed to achieve the purposes stated at Ark. Code Ann. § 9-27-302 (1989). Among the requirements imposed on the juvenile court are those to consider what efforts have been made, to determine if those efforts have been sufficient, and to make prospective orders based on its determinations.

Finally, we address appellant’s challenge to the sufficiency of the evidence. Although we review chancery cases de novo, we do not reverse unless the chancellor’s findings are clearly against the preponderance of the evidence. Wilson v. Wilson, 301 Ark. 80, 781 S.W.2d 487 (1990); Ark. R. Civ. P. 52.

DHS presented the following evidence at the April 5,1990, hearing. Carol Balmaz, the assigned caseworker, testified that two months prior to that date she prepared the court report which was submitted for consideration at this hearing and included in it her recommendations (among those recommendations was one that the juvenile court terminate jurisdiction). She stated that DHS had done everything it could in the way of financial assistance, but that she thought she could provide transportation. Ms. Balmaz continued by saying that she had not talked with Ms. Clark in “maybe three weeks or a month and we have not been — she has not requested transportation.” Ms. Balmaz also said that since January Ms. Clark had not requested transportation and that, although she should have been, she was not aware that a need existed.

Ms. Clark also testified at the April 5 hearing. Concerning transportation she stated that there were times when she and her children rode the bus five to seven times a day. She said she rode it four times a day to take her son back and forth to school. As for her financial situation, Ms. Clark stated that she was behind on her rent and was running out of food again. This testimony was not disputed by DHS. In fact, the caseworker, Ms. Balmaz, testified that she did not know what Ms. Clark’s situation was regarding rent and food.

Clearly there is evidence in the record supporting the orders of the juvenile judge concerning the family’s needs. We, therefore, cannot say that the juvenile judge was clearly erroneous.

Affirmed.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. This case is the second appeal this court has received where certain services required by law have not been furnished to families. See Ark. Code Ann. § 9-27-303(17) (Supp. 1989). In both cases, the chancery judges have done their best to assure required and needed services would be given the families in the future.

In the present case, the chancellor ordered DHS to provide medication to the mother in this matter. The mother suffers from dysthymia and a borderline personality disorder and requires Prozac, an anti-depressant medication, which can be provided at a cost of $5.50 per month. The judge also directed DHS to provide the mother and her two children with bus tokens so the family could make their required counseling sessions. Such transportation could be provided at a cost of $36.00 per month.

In my view, DHS’s decision to appeal the chancellor’s order in this case is not only meritless, but incredulous as well. DHS concedes this family has failed to receive even the small $800.00 per year amount it, by its own policy, has deemed to be the maximum available financial assistance this family could receive from certain so-called “preventive funds.” Without her medication, the mother in this case could well have a relapse which would in turn jeopardize her ability to care for the children. Without transportation, she and her children are left with the inability to obtain counseling, which is part of the case plan established by DHS. Both the medication and transportation can be provided for a total sum of $41.50 per month.

The mother in this case has made substantial improvements which have rewarded her the return of her children by the court. If she fails to continue her progress because of no medication and transportation and, as a result, her children are returned to foster care, this state’s economic burden will far exceed the disputed costs in this case. The judge in this matter was patient and thorough, and I agree with the majority that her order clearly should be affirmed. DHS’s energies would be better placed if it spent its time and efforts in trying to meet the needs and services required by families, such as the one here, than in challenging entitlements from preventive funds which are clearly within DHS’s authority to pay. This mother, who donates plasma to meet her monthly rent, surely is entitled to better treatment than what she has received in this case.

In conclusion, I would add that the chancellor noted that she had some difficulty in determining who, in DHS, was accountable for assuring this family received the required services. The judge looked to the caseworker for DHS/DCFS. However, that caseworker conceded that because of her caseload, she was unable to do the needed work on this family’s case. The caseworker further testified that another DHS official, Billye Burke, has the purse strings and nothing could be done without her approval. Here, Burke apparently decided no more preventive funds should go to this family. No explanation was given for the cutting off of these funds even though the maximum entitlement amount had not been reached. And finally, a third person, a social worker and employee of Mental Health Center, was assigned to and assisted this family. While this social worker said that she did what she could for the family, she related the services that were not forthcoming, stating as follows: “I would like for her [the mother] to get all the resources that she needs so that she can get on with the business of parenting and living her life, with her training, where she can eventually get off of assistance. She wants to do that and that’s positive.”

The chancellor, too, was frustrated in assigning accountability in this matter, especially, I would think, because only $41.50 per month would have resolved the immediate needs of this family. The judge has entered her order to assure those needs are met and this court, on appeal, emphasizes that the judge has that power. No separation of powers issue exists in this case, as DHS seems to argue. Our law assures that all children brought to the attention of the courts shall receive the guidance, care, and control, preferably in the child’s own home, which will best serve the emotional, mental and physical welfare of the child and the state. Ark. Code. Ann. § 9-27-302(1) (Supp. 1989). The family and children in the present case require transportation, counseling and treatment which are provided by law. Ark. Code Ann. § 9-27-303(17). When DHS and the state fail to provide those services required by law, then the judiciary’s responsibility is to assure the law is complied with. That is all there is to this case. The trial judge was correct in entering her order, and this court is correct in expeditiously upholding the order.


author: Robert H. Dudley, Justice.

text:
    FIRST NATIONAL BANK of Stuttgart v. Bill CLINTON
    90-247
    802 S.W.2d 928
    Supreme Court of Arkansas
    Opinion delivered February 4, 1991

      Arnold, Grobmyer & Haley, by: Robert R. Ross and Lee S. Thalheimer, for appellant.

      Ron Fields, Att’y Gen,, by: C. Kent Jollijf, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Act 829 of 1989, the Arkansas Farm Mediation Act, was passed in the 1989 regular session of the General Assembly. It is codified as Ark. Code Ann. §§ 2-7-101 to -310 (Supp. 1989). Under section 4 of the Act, Ark. Code Ann. § 2-7-302 (Supp. 1989), a foreclosure or other similar proceeding which is brought against a farmer and involves $20,000.00 or more cannot be commenced without first satisfying specified mediation requirements. Section 11 of the Act, Ark. Code Ann. § 2-7-103 (Supp. 1989), exempted commercial banks from the mediation requirement. A separate, but companion appropriations act, Act 828 of 1989, appropriated funds to the Arkansas Development Finance Authority to operate the program.

Subsequently, an attorney with the United States Department of Agriculture informed the state mediation agency that the section 11 exemption of commercial banks from the mediation requirements would “disqualify the state mediation program for federal matching grants under §§ 501 and 502 of the Agriculture Credit Act of 1987.” The director of the state program understood that without the federal matching funds, which had been appropriated in Act 828, there would not be enough money to pay the regular salaries, maintenance, and operation of the program. Thus, it was decided to seek repeal of the section 11 exemption.

In the meantime, this Court declared that all appropriations acts passed during the 1989 regular session were invalid, Fisher v. Perroni, 299 Ark. 227, 771 S.W.2d 766 (1989), and the Governor called a special session to reenact all of the improperly passed appropriation's bills. Item 54 of the Governor’s call provided:

To make an appropriation for Personal Service and Operating Expenses of the Arkansas Development Finance Authority for the biennial period ending June 30, 1991, as enacted in Act 828 of 1989.

The special session was convened, and Act 36 was enacted. It, in effect, reenacted Act 828 of the regular session, the appropriations act. However, section 16 of Act 36 of the special session, Ark. Code Ann. § 2-7-103 (Supp. 1989), repealed the section 11 exemption for commercial banks.

The appellant, a commercial bank, filed suit asking for a judgment declaring that the repeal of the section 11 exemption was invalid. The Chancellor held that section 16 of Act 36 of the special session was validly passed. We affirm that decision.

Appellant first argues that the repeal of the exemption for commercial banks violated article 6, section 19 of the Constitution of Arkansas, which provides that “no other business than that set forth therein [in the Governor’s proclamation] shall be transacted. . . .” In short, appellant contends that the repeal of the commercial bank exemption was not within the purview of the call.

The purpose of article 6, section 19 is to prevent the enactment of laws which do not have any connection or relation to the subjects embraced in the proclamation. McCarroll v. Clyde Collins Liquors, Inc., 198 Ark. 896, 132 S.W.2d 19 (1939). It does not have as its purpose the prohibition of laws which necessarily or incidentally arise out of the subjects described in the call. On the contrary, such bills arising out of the call may be validly enacted. McCarroll v. Clyde Collins Liquors, Inc., supra. In determining whether an act incidentally arose out of the subjects described in the call, we must be practical, and we give “extensive latitude or wide range” to the General Assembly in determining what comes within the purview of the call. Pope v. Oliver, 196 Ark. 394, 117 S.W.2d 1072 (1938).

The commercial bank exemption in the Farm Mediation Act was repealed in the special session to make the state farm mediation program eligible to receive federal matching funds. The purpose of item 54 of the call was to make an appropriation, which included the federal matching funds, for the state farm mediation program. Thus, the repeal provision constituted a necessary detail in accomplishing the purpose of the call. It was within the purview.

Appellant next argues that the repeal of the commercial bank exemption violates the single subject requirement of article 5, section 30 of the Constitution of Arkansas. The provision is as follows:

The general appropriation bill shall embrace nothing but appropriations for the ordinary expense of the executive, legislative and judicial departments of the State; all other appropriations shall be made by separate bills, each embracing but one subject.

In Cottrell v. Faubus, 233 Ark. 721, 347 S.W.2d 52 (1961), we explained that the purpose of the above constitutional provision is “to prevent the inclusion of separate and unrelated appropriations in a single bill, because that practice opens the door to the evils that have come to be known as logrolling and pork barrel legislation.”

Further, in Reid v. Jones, 261 Ark. 550, 551 S.W.2d 191 (1977), we explained that under similar unity of subject clauses, courts have uniformly held that the unity of the subject of an act was preserved so long as the different parts of the act relate, directly or indirectly, to the same general object fairly indicated by its title.

Here, the title of Act 36 is:

“AN ACT TO MAKE AN APPROPRIATION FOR PERSONAL SERVICES AND OPERATING EXPENSES OF THE ARKANSAS DEVELOPMENT FINANCE AUTHORITY FOR THE BIENNIAL PERIOD ENDING JUNE 30, 1991; AND FOR OTHER PURPOSES.”

The general object of Act 36 of the special session is to provide funding for the farm mediation program. The repeal of the commercial bank exemption was to secure federal matching funds and is directly related to the funding of the farm mediation program. Thus, it does not violate the single subject requirement of the constitution.

Affirmed.

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


text:
    WOODHAVEN HOMES, INC. v. KENNEDY SHEET METAL CO.
    90-330
    803 S.W.2d 508
    Supreme Court of Arkansas
    Opinion delivered February 4, 1991

      Leslie W. Mattingly, for appellant.

      J.R. Buzbee, for appellee.
   Robert H. Dudley, Justice.

Woodhaven Homes, Inc., the appellant, is a general contractor which contracted with Proffitt Enterprises to build a Bonanza Restaurant in Bentonville. The appellant general contractor entered into a written sub-contract with Kennedy Sheet Metal Company, Inc., the appellee, to perform the plumbing, heating, air conditioning, and ventilation work and to supply some of the materials used in the building. The consideration for the sub-contract was $67,403.00. The subcontract provided that the general contractor could direct the sub-contractor to change or modify its work and that, in such an event, the sub-contractor would submit in writing claims for adjustments in the contract sum. The appellee sub-contractor was licensed as a heating, air-conditioning, and plumbing contractor, but was not licensed as an electrical contractor.

After the appellee sub-contractor started work, the general contractor changed some of the plans. Further changes occurred throughout the construction period. Appellant general contractor did not draw up change orders for many of the changes it requested, and, in addition, after the construction had started, the parties verbally agreed that the sub-contractor would perform the electrical work for an additional consideration of $35,000.00. A written change order was issued for $6,800.00 worth of electrical work. Near the end of the work the appellee subcontractor submitted to appellant general contractor a bill for “electrical extras” in the amount of $15,535.83. The general contractor refused to pay this amount. The sub-contractor also submitted to the general contractor a bill for “plumbing extras” in the amount of $2,818.70. The general contractor refused to pay for these “extras.” The general contractor paid all other amounts due. The sub-contractor then filed suit in circuit court for the “extra” amounts. Upon the motion of the sub-contractor and over the objection of the general contractor, the circuit court transferred the case to chancery court. The Chancellor held in favor of the appellee sub-contractor. The general contractor appeals. We affirm the ruling of the Chancellor.

Prior to 1989 the Contractor’s Licensing Statute provided that no action could be brought by an unlicensed contractor to enforce any construction contract. Ark. Code Ann. § 17-22-103(d) (1987). In 1988, we interpreted the statute to mean that an unlicensed contractor could recover under the theory of quantum meruit, which is a claim for unjust enrichment and does not involve enforcement of a contract. Sission v. Ragland, 294 Ark. 629, 745 S.W.2d 620 (1988). In 1989, after the Sission case had been decided, and after the work in this case had been completed, the General Assembly passed an amended version of the statute which now provides there may not be a recovery under the theory of quantum meruit. Ark. Code Ann. § 17-22-103(d) (Supp. 1989). The Chancellor refused to retroactively apply the 1989 amendment and awarded the appellee sub-contractor a quantum meruit recovery for the “electrical extras.” Appellant contends the 1989 amendment should be retroactively applied.

The general rule is that all legislation is presumed to apply prospectively unless the legislature expressly declares, or necessarily implies by the language used, an intent to give a statute retroactive effect. Arkansas Rural Med. Practice Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987). Here, there is no declaration in the act, either expressed or implicit, that it is to be applied retroactively. Further, a statute will not be given a retroactive application when it takes away a vested right unless such be the “unequivocal and inflexible import of the terms and the manifest intention of the legislature.” Id. at 292, 729 S.W.2d at 403. Here, under the case of Sission v. Ragland, supra, the appellee sub-contractor had a vested right to file a claim under the theory of quantum meruit. That vested right will not be taken away unless the “unequivocal and inflexible” language of the act requires it. That is not the case here.

The appellant alternatively argues that, even if the subcontractor could lawfully recover for its electrical work on the basis of quantum meruit, the trial court committed reversible error in including overhead in the award for quantum meruit.

Having found that the appellant general contractor received the benefit of appellee sub-contractor’s electrical work, it remained for the Chancellor to find the reasonable value of that work. The measure of quantum meruit recovery in a case where the work is finished is the reasonable value of the goods, services, or product furnished to the party unjustly enriched. City of Damascus v. Bivens, 291 Ark. 600, 726 S.W.2d 677 (1987). In many situations, such as this case, there is no ready market or exchange to set a reasonable value on the completed improvement or product. Thus, here it remained for the Chancellor to find the reasonable value of the electrical work. In doing so, she closely examined the appellee sub-contraetor’s claim and found it asked for the contract price less profit. The Chancellor awarded that amount. The appellant general contractor did not show that the value of the benefit conferred to it was less than that amount.

In a comparable situation we wrote:

The appellant argues that by awarding the balance due on the contract the trial court was enforcing the contract rather than awarding the value of the services. That is not necessarily so. We have held that if the party against whom an unjust enrichment award is levied has not shown that the value of the benefit conferred is less than the payment called for in the contract, it is not error to base the unjust enrichment award on the contract price or that which has already been paid pursuant to the contract. Revis v. Harris, supra; Gladson v. Wilson, 196 Ark. 996, 120 S.W.2d 732 (1938). The contract price is some evidence of the value of the benefit conferred. See D. Dobbs, Remedies, pp 269, 949 (1973). (Footnote omitted.)

Id. at 603, 726 S.W.2d at 679.

Overhead is customarily included in the contract price. Thus, despite appellant’s request for us to do so, we will not categorically fix a rule that overhead will never be allowed in determining the reasonable value of the improvement. Overhead, in the form of direct costs such as the rental of tools and equipment, the cost of supervision, the costs of bonds, the cost of casualty and workmen’s compensation insurance, and indirect costs such as administrative and office costs, may constitute some evidence of the value of the benefit conferred. McCormick, Handbook on the Law of Damages & 165 (1935). Other jurisdictions agree. Murdock-Bryant Construction, Inc. v. Pearson, 146 Ariz. 69, 703 P.2d 1206 (1984); Najjar Indus., Inc. v. City of New York, 87 A.D.2d 329, 451 N.Y.S.2d 410 (App. Div. 1982); Houma Armature Works & Supply, Inc. v. Landry, 417 So.2d 42 (La. App. 1982); Petropoulos v. Lubienski, 220 Md. 293, 152 A.2d 801 (1959).

Appellant general contractor contends that the Arkansas case law is “crystal clear” that a recovery under quantum meruit is limited to direct costs for labor and materials. For this it cites the cases of Pickens v. Stroud, 9 Ark. App. 96, 653 S.W.2d 146 (1983) and Bell v. Carver, 245 Ark. 31, 431 S.W.2d 452 (1968). Neither case so holds. In the Bell case, this court was dealing with a partially performed contract which could not be completed because the structure was destroyed by a fire. As a result, the contract could not be completed. We said the contractor could not sue for the full profit he would have made if the fire had not occurred, but instead was limited to a quantum meruit recovery for the work he performed. The Pickens case is similar, and the holding was in line with the Bell case. Neither case deals with a completed project, and neither holds that a recovery under quantum meruit is limited to direct costs for labor and materials so that overhead may not be considered as some evidence of the value of the benefit conferred.

As a sub-point under this argument the appellant general contractor argues that the appellee sub-contractor was awarded more money than it would have received under the original written contract. The short answer to the argument is that the Chancellor did not award more than the sub-contractor would have received under either the written contract or the oral “extra” agreement.

Appellant general contractor next argues that the trial court committed reversible error in awarding a judgment for the “plumbing extras” when there was no written change order. The argument will not stand, for a written contract may be orally modified, and we cannot say the Chancellor was clearly erroneous in finding that the parties agreed to orally modify this contract. The credibility of witnesses is a matter within the exclusive province of the Chancellor.

The Chancellor awarded $2,818.70 to the sub-contractor for “plumbing extras” pursuant to the oral contract for those extras and, in addition, awarded $11,424.52 for “electrical extras” under the theory of quantum meruit. She additionally made an award of $3,000.00 as attorney’s fees. The appellant general contractor contends that the Chancellor erred in awarding attorney’s fees to the appellee sub-contractor. We hold there was no reversible error in the Chancellor’s award.

The applicable statute, Ark. Code Ann. § 16-22-308 (Supp. 1989) provides that an attorney’s fee may be awarded in an action to recover for a breach of contract. Without question, under the language of the statue, the Chancellor could make an award of attorney’s fees for the recovery for the breach of the oral contract. The same statute provides that an attorney’s fee may be awarded in an action to recover for “labor or services.” Clearly, a good part, if not most, of the quantum meruit recovery was for the reasonable value of appellee’s labor or services which unjustly enriched the appellant, and an award of attorney’s fees on this amount would be allowable under the language of the statute. The statute does not provide for attorney’s fees in an action to recover for the materials supplied. However, none of the award for attorney’s fees is shown to be based upon materials supplied and, therefore, we cannot say the Chancellor erred in her award of attorney’s fees.

Affirmed.