author: Tom Glaze, Justice.

text:
    The BANK OF CAVE CITY, Cave City, Arkansas v. JUSTICE FARMS, INC.
    88-93
    761 S.W.2d 921
    Supreme Court of Arkansas
    Opinion delivered December 12, 1988

      Highsmith, Gregg, Hart, Farris & Rutledge, by: John C. Gregg, for appellant.

      Bridges, Young, Matthews, Holmes & Drake, by: Terry F. Wynne, for appellee.
   Tom Glaze, Justice.

This case concerns a legal dispute between the appellant, The Bank of Cave City, Arkansas (Bank) and the appellee, Justice Farms, Inc. (Justice). Their disputes ensued from Farmers & Ranchers Livestock Auction (Farmers) and its owners’, Bill and Mary Davis’s, sale of cattle to Justice on January 11 and 13,1984. In connection with those sales, Farmers deposited a bank draft dated January 13,1984, in the amount of $68,016.73, which was signed by Mrs. Davis and drawn on Justice’s bank in Pine Bluff. The Bank gave Farmers and the Davises immediate credit on the Justice bank draft, which Justice later refused to honor when the draft was submitted to its bank in Pine Bluff. The Bank subsequently brought suit against Justice claiming the Bank was a holder in due course and entitled to the full amount of the draft. In the alternative, the Bank argued it was entitled to judgment because Farmers’ and Justice’s actions, surrounding the sale transaction and bank draft, constituted actionable fraud against the Bank. The trial court rejected the Bank’s contentions and entered an order dismissing its complaint. We affirm.

On appeal, appellant first argues it was a holder in due course of the $68,016.73 draft, and for that reason, the court erred in failing to award judgment against Justice in that amount. Of course, one can be a holder in due course only of a negotiable instrument, and that instrument, among other things, must be signed by the maker or drawer. See Ark. Code Ann. § 4-3-104 (1987). In addition, no person is liable bn a negotiable instrument unless his signature appears on it. Ark. Code Ann. § 4-3-104 (1987). In this cause, Justice undisputedly did not sign the draft in question; however, the Bank claims Mrs. Dayis signed the draft as Justice’s authorized agent.

Justice denied that it authorized Mrs. Davis to sign the $68,016.73 draft, and the trial court accepted Justice’s account of what happened as true. The trial court further ruled that Justice properly rejected the draft when it was submitted to Justice’s Pine Bluff bank. On appeal, the Bank insists the trial court was clearly wrong in reaching this conclusion,

Because Justice questioned, at trial, the effectiveness of the Davis signature on the draft instrument, the Bank, which was claiming under the signature, had the burden of establishing it. Ark. Code Ann. § 4-3-307(l)(a) (1987). The Bank urges that it met its burden, under Ark. Code Ann. § 4-3-403(1), which provides that a signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. Section 4-3-403(1) further provides that no particular form of appointment is necessary to establish such authority. The Bank argues that Justice expressly, implicitly, or apparently had authorized Mrs. Davis’ signature to the draft.

The Bank’s first argument relies heavily upon an earlier sale transaction, which these same parties conducted on January 4, 1984. In that transaction, Justice purchased cattle from Farmers for the sum of $20,794.69. In the years of doing business with Farmers, prior to this January 4 transaction, Justice had always paid for its purchases of cattle by check. However, on the night of January 4th, Mrs. Davis called Justice requesting its permission to draw a draft on Justice’s bank to pay for that day’s purchase. Justice agreed, but told Davis the draft would not be paid until the Pine Bluff bank verified the amount of the draft. As it later became evident, Farmers (and the Davises) deposited the Justice draft with the Bank, but the draft was for $40,794.69 more than twice the sale amount. Relying on the established practice between the Bank and Farmers, the Bank gave Farmers immediate credit for the full amount of the draft.

Apparently, in order to assure Justice would not bear a loss as a result of the $40,794.69 draft, Farmers mailed an unsolicited check to Justice in the approximate sum of $20,000.00. After receiving the check, Justice suspected that the draft drawn by Mrs. Davis might be for more than the January 4 sale amount. However, Justice did not contact Mrs. Davis, but instead deposited Farmers’ check and later verified with Justice’s bank that the check had cleared. Justice then learned from its bank that the draft had been written for the $40,794.69 amount, but on January 16, 1984, Justice proceeded to honor and pay the draft amount, since the exchange of the check and draft resulted in Justice being charged only the true amount of the January 4 sale. From the record, this transaction was Justice’s first indication that Farmers had employed the practice of check-kiting when selling cattle. On this point, and as we previously mentioned, Justice had always paid Farmers by check when buying cattle and drafts had never been mentioned.

The Bank contends Justice became aware of the check-kiting practice of Farmers and the Davises as a result of the January 4 transaction and that knowledge served to make Justice liable for the January 11 and 13 sales or second transaction, which is in issue in this appeal. The Bank urges acceptance of this argument even though there is no direct evidence (as existed in the January 4th sale) that Justice had approved or authorized either Farmers or Mrs. Davis to sign a draft.

This second transaction, as earlier noted, involved Justice’s purchase of cattle from Farmers on January 11 and 13. The total purchase price was $30,864.17. Justice mailed checks in this amount to Farmers but stopped payment on those checks when he received another unsolicited check from Farmers in the amount of $40,030.19. Although Justice never authorized any draft, it suspected a draft would be forthcoming since Justice received another unsolicited check from Farmers. Indeed, Mrs. Davis had drawn another draft on January 13,1984, payable to Farmers in the amount of $68,016.73, or more than twice the sale amount, and again the Bank gave immediate credit to Farmers when it deposited the draft. Later, sometime in the week of January 16, 1984, Mrs. Davis called Justice and explained the $40,030.19 check sent Justice was insufficient. She instructed Justice not to honor the $68,016.73 bank draft and to pay Farmers by check, which Justice did.

To support its claim that Justice authorized Mrs. Davis to sign the $68,016.73 bank draft and should be obligated to pay the Bank as a holder in due course, the Bank argues that the evidence reflects Justice never actually claimed Mrs. Davis was unauthorized to sign the draft and that issue concerning her authority was only raised after litigation ensued. The Bank submits that had Farmers’ $40,030.19 unsolicited check been sufficient, Justice would have honored the draft signed by Mrs. Davis. The Bank’s argument ignores the undisputed evidence that Justice never authorized the second draft and became aware of that draft after Farmers had deposited the draft in its account with the Bank and the Bank had already given Farmers the full amount of the draft. It was only after these events occurred that Justice received his second unsolicited check from Farmers, which caused Justice to suspect that Farmers and Mrs. Davis had drawn another draft on Justice’s bank. It is also significant that Justice had resumed its past practice of paying for its cattle purchases by mailing Farmers checks in payment for its purchases on January 11 and 13. Based on this evidence, the trial court could reasonably find — as it obviously did — that Justice never expressly or impliedly authorized Mrs. Davis to draw the second draft.

The Bank further argues that even if Justice did not authorize the signature of Mrs. Davis, Justice certainly ratified her signature or was precluded from denying it under Ark. Code Ann. § 4-3-404(1) (1987). Section 4-3-404(1) provides as follows:

Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it; but it operates as the signature of the unauthorized signer in favor of any person who in good faith pays the instrument or takes it for value.

The Bank claims it was justified in honoring the second draft signed by Mrs. Davis based upon Mrs. Davis having signed the draft in the first cattle sale transaction. Clifton Crabtree, a cashier and officer of the Bank, testified that the Bank had knowledge at the time of the second draft that the previous draft had cleared on Mrs. Davis’s signature. The record fails to support that conclusion. The first draft, joint exhibit number four, reflects that it had not been stamped paid until January 16. Thus, the Bank could not have known the first draft would have been honored and paid until January 16; the Bank, on the other hand, had already given Farmers immediate credit on January 13, the date the second draft was submitted to the Bank.

We also note that Justice’s actions, themselves, counter any suggestion that it ratified Mrs. Davis’s having signed the second draft. After Justice bought the cattle on January 11 and 13, it paid for them by check and only became aware that Mrs. Davis had signed another draft when Justice received the second unsolicited check. At that point, Justice could have done nothing to have prevented the Bank’s loss, since the Bank had already given Farmers credit on the second draft. Instead, Justice proceeded to cut its own potential loss by stopping payment on the checks it had previously mailed Farmers in payment of Justice’s January 11 and 13 purchases of cattle. We cannot agree that the actions taken by Justice in any way ratified or precluded Justice from denying it gave authority to sign the second draft.

Finally, appellant contends Justice fraudulently participated with Farmers in Farmers’ check-kiting scheme because Justice conceded it knew what was “probably happening” when it, on two separate occasions, deposited the unsolicited checks from Farmers. We disagree. The facts already discussed reflect that Justice was not fully apprised of Farmers’ or the Davis’s actions and the record clearly supports the trial court’s finding that Justice did not act in concert with Farmers or Mrs. Davis to defraud the Bank. Certainly, the Bank was in no position to say it could justifiably rely on Justice’s conduct in view of the knowledge the Bank possessed concerning Farmers’ precarious financial situation and manner of doing business. Without being unnecessarily repetitive of the facts already mentioned, we add that the Bank was quite aware that Farmers had a cash flow problem. The Bank knew Farmers would write checks when it would have insufficient funds in its account, and knew that Farmers had defaulted on a loan it had with the Bank. Even so, the Bank would give Farmers immediate cash on drafts or checks drawn on accounts in other banks in anticipation that those drafts or checks would clear. Thus, the Bank knew it risked getting “stuck” with having given Farmers immediate credit if one of those other instruments — such as the two drafts in issue in this cause — were for some reason dishonored.

For the reasons stated above, we affirm the trial court.

       In making its argument, the Bank, we note, failed to use Ark. Code Ann. § 4-3-406(1) (Supp. 1987). This statute provides that any person who substantially contributes to the making of an unauthorized signature is precluded from asserting the lack of authority against a holder in due course.


source: Caselaw Access Project

author: Tom Glaze, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Marsha CLAYTON v. Tommy CLAYTON
    88-224
    760 S.W.2d 875
    Supreme Court of Arkansas
    Opinion delivered December 12, 1988

      Virginia “Ginger” Atkinson and Roy Finch, for appellant.

      Gregory E. Bryant, for appellee.
   Tom Glaze, Justice.

This is an appeal from the special chancellor’s finding that appellee’s unliquidated personal injury claim under the Federal Employers’ Liability Act (FELA) was not marital property under Ark. Code Ann. § 9-12-315(b)(6) (Supp. 1987). In her appeal, the appellant relies on our earlier opinion in Bunt v. Bunt, 294 Ark. 507, 744 S.W.2d 718 (1988), in arguing that the chancellor’s finding is erroneous. We agree to the extent that part of the appellee’s claim should be considered marital property, and therefore reverse and remand.

The parties were married on May 6, 1980, and they separated sometime in May of 1985. Appellee injured his back while working for Missouri Pacific Railroad in July of 1986, and filed a claim under the FELA. The appellee filed a complaint for divorce on May 5, 1987. At the divorce hearing on August 21, 1987, Bob Monroe, the claims manager for the railroad, testified that negotiations had not begun yet on the claim, because time was needed for the medical condition to stabilize. The chancellor issued the decree of divorce on January 6, 1988, finding, among other things, that the appellant was not entitled to any of the benefits to be received from the appellee’s FELA claim because those benefits were not marital property.

Appellant’s reliance on Bunt is well founded. There, in a four-to-three decision, this court addressed a similar fact situation, and held that a spouse’s personal injury claim which has not, as yet, been made the subject of a complaint or offer of settlement at the time of the divorce is still considered marital property as that term is defined in Ark. Code Ann. § 9-12-315(b) (1987). Bunt, 294 Ark. 507, 744 S.W.2d 718. Thus, it would appear that this court’s decision in Bunt is controlling and supports the appellant’s view that appellee’s unliquidated personal injury claim is marital property and is distributable as such. The legislature, however, amended our marital property provision by enacting Act 676 of 1987, which took effect after the Bunt decision. Act 676, compiled as Ark. Code Ann. § 9-12-315(b)(6) (Supp. 1987), excludes certain benefits and portions or elements of personal injury claims from marital property and that Act reads in pertinent part as follows:

(b) For the purpose of this section “marital property” means all property acquired by either spouse subsequent to the marriage except:
* * *
(6) Benefits received or to be received from a workers’ compensation or personal injury claim when those benefits are for any degree of permanent disability or future medical expenses. (Emphasis added.)

Appellant argues that all of appellee’s personal injury claim should be considered marital property under the Bunt holding, because Act 676 took effect after the date of appellee’s injury. We cannot agree. This court has previously held that an act that is effective at the time of the divorce decree is applicable law pertaining to the division of property. See Ford v. Ford, 272 Ark. 506, 616 S.W.2d 3 (1981); Noble v. Noble, 270 Ark. 602, 605 S.W.2d 453 (1980). Because Act 676 was clearly in effect at the time the divorce decree was entered, the chancellor was required to consider the Act when he decided the parties’ marital property interests.

Next, the appellant argues that the appellee’s FELA claim is not covered by the exception, since it is not a workers’ compensation claim. While the appellant is certainly correct that a FELA claim is not one for workers’ compensation, Act 676 clearly provides that it applies to certain benefits received from a personal injury claim. Appellee’s FELA claim certainly arises out of bodily injuries he sustained as a railroad employee; therefore, the language under Act 676 is obviously controlling.

Although Act 676 had passed but was not effective when Bunt was decided, we did note that the General Assembly, through that Act, excepted from marital property only those benefits from an unliquidated personal injury claim that would be for any degree of permanent disability or future medical expenses. With these specific benefits excepted, the remaining benefits or elements of damage from one’s personal injury claim are subject to division as marital property pursuant to Ark. Code Ann. § 9-12-315 (a) (1) (A).

In anticipating that a part of appellee’s FELA claim might be found distributable, appellee requests that we hold, on de novo review, that appellant still be denied any such benefits. While this court has the authority in an equity case to decide a case on de novo appeal, we find the record before us insufficient to do so. Therefore we must remand this cause to the trial court for further proceedings and findings necessary to determine the benefits, if any, from appellee’s FELA claim that must be considered as marital property and distributed in accordance with § 9-12-315(a)(1)(A) and (B).

Hickman and Purtle, JJ., dissent.

John I. Purtle, Justice,

dissenting. There seems to be no end to the imagination of the majority of the members of this court relating to what marital property consists of when one spouse receives an injury giving rise to a claim for income or money damages. Bunt v. Bunt, 294 Ark. 507, 744 S.W.2d 718 (1988), is clearly distinguishable from the case before us. Bunt was decided before the effective date of Ark. Code Ann. § 9-12-315(b)(6) (Supp. 1987) (Act 676 of 1987).

Act 676 was the fourth attempt by the General Assembly since the effective date of Act 705 of 1979 to stabilize the distribution of marital property formula. Obviously the legislature recognizes the inconsistencies of our decisions since Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981), when this court first went astray in its interpretation of Act 705. One very obvious purpose of Act 676 was to correct this court’s decisions in Goode v. Goode, 286 Ark. 463, 692 S.W.2d 757 (1985); and Lyles v. Lyles, 289 Ark. 159, 711 S.W.2d 447 (1986). Two previous attempts to correct these errors by the court had failed. This court is hard-headed and at times legislates when it decides it knows what the law ought to be. It looks like the General Assembly will have to make a fifth effort to write a law which this court understands.

In the present case the parties had been separated more than a year before the appellee was injured. In my opinion nothing could be more personal than an injury to one’s body. Obviously pain and suffering, and mental anguish and medical expenses must be borne only by the appellee. Certainly if he receives a money award for loss of wages or loss of ability to earn it should be considered by the court in dividing the marital assets and in setting support and alimony payments.

I would affirm the special chancellor.

Hickman, J., joins this dissent.

       Since Act 676 contained no emergency clause, it became effective on July 20,1987, or ninety days after the legislature adjourned.


text:
    Robert KNEE v. STATE of Arkansas
    CR 88-7
    760 S.W.2d 874
    Supreme Court of Arkansas
    Opinion delivered December 12, 1988

      Johnny L. Nichols, for appellant.

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

This is an appeal from the trial court’s denial of appellant’s Rule 37 petition for post-conviction relief. The sole issue before us on appeal is whether a factual basis under A.R.Cr.P. Rule 24.6 was established for appellant’s guilty plea. We affirm the trial court’s finding that a factual basis was established for the appellant’s guilty plea at the Rule 37 hearing.

Appellant was charged with aggravated robbery, theft of property, kidnapping and rape. After his arrest, the appellant gave a statement to the police confessing that he entered a convenient mart armed with a gun and robbed the store. After the clerk gave him the money, the appellant also admitted forcing the clerk to leave and accompany him to his house. Appellant’s statement reflects that he refused to talk-to the police about the rape which was alleged to have occurred at his house. However, the clerk’s statements to her examining doctor and to the investigating police officer revealed that the appellant threatened the clerk with a knife and then raped her with his fingers and hand. The doctor’s report further revealed that the victim suffered several lacerations in her vagina, which caused severe bleeding. Pursuant to a plea agreement, the appellant pleaded guilty to all charges and received the following sentences to run concurrently: forty years for aggravated robbery, ten years for theft of property, forty years for kidnapping, and life for rape.

In accordance with A.R.Cr.P. Rule 24.6, a trial judge before entering judgment upon a guilty plea must make inquiry as to whether there is a factual basis for the plea. Here, both parties concede that a factual basis was not established by the trial judge at the plea hearing. However, this court has stated numerous times that if the factual basis for the plea is not sufficiently established at the plea hearing, it may be established at the Rule 37 hearing where the factual basis is determined to have existed at the time of the guilty plea. See, e.g., Muck v. State, 292 Ark. 310, 730 S.W.2d 214 (1987). We further note that the requirement of a factual basis for a plea does not require that the appellant be proven guilty but merely that there was sufficient evidence from which the trial court could conclude that the appellant would be found guilty if he elected to proceed to trial. See Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987).

Appellant argues that the trial court failed to establish the necessary factual basis for his guilty plea at the Rule 37 hearing. At that hearing, Ricky Riggs, a police officer, testified about his interview with the victim and her statements about the rape. The trial court considered the examining physician’s report, which was attached to appellant’s Rule 37 petition and submitted into evidence. That report contained not only a medical description of the extent of the victim’s injuries, but also the victim’s statements about the rape.

The appellant objected below, and argues on appeal, that the officer’s testimony and doctor’s statement were hearsay and therefore inadmissible. We recently have rejected such an argument. See Flaherty v. State, 297 Ark. 198, 761 S.W.2d 167 (1988); Muck, 292 Ark. 310, 730 S.W.2d 214. In sum, this court has held that testimony or statements such as those present here are admissible since they are not introduced to prove the truth of the matter stated, but only to show that if the defendant (appellant) stood trial there was evidence from which the trial court could conclude that he was guilty.

For the reasons stated above, we affirm.

       Appellant confessed to the other charges against him, so on appeal he challenges only the factual basis for the rape charge.


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

text:
    Lonnie BRAGG v. STATE of Arkansas
    RC 88-56
    760 S.W.2d 878

    Supreme Court of Arkansas
    Opinion delivered December 12, 1988

      Appellant, pro se.

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

      Justice Purtle’s dissenting opinion can be found at 764 S.W.2d 416.

   Per Curiam.

In 1987 petitioner Bragg filed in circuit court a pro se petition to proceed pursuant to Criminal Procedure Rule 37. The petition was denied, and he subsequently filed a timely notice of appeal and designation of record but did not contact the court reporter about preparing the transcript on appeal. In 1988, after the time for lodging the record here had elapsed, petitioner filed in this court a petition for writ of mandamus in which he alleged that the lower court had not taken timely action to prepare the record on appeal. In an apparent reaction to the filing of the mandamus petition, the appeal record was prepared by the circuit court and forwarded to this court. Since the record was not tendered in a timely manner, petitioner could not lodge it in this court absent our granting a motion for rule on the clerk. In his motion, which is now before us, the petitioner relies primarily on the fact that there was a timely notice of appeal and that he relied on a fellow inmate for legal advice. There is no mention in the motion of petitioner’s responsibility to order the record from the court reporter.

Criminal Procedure Rule 36.9 provides that a notice of appeal “shall include either a certificate by the appealing party or his attorney that the transcript of the trial record has been ordered from the court reporter or a petition to obtain the record as a pauper if, for the purposes of the appeal, a transcript is deemed essential to resolve the issues on appeal.” The notice of appeal filed by petitioner neither said that he had contacted the court reporter directly nor said that he was asking to obtain the record as a pauper. The record does not contain an order declaring him indigent for postconviction purposes or for an appeal of the denial of postconviction relief.

While Rule 3 7.3 (b) affords a right to appointment of counsel for an appeal by an indigent, there is no requirement under the rule that the circuit clerk perfect the appeal for the petitioner. In fact, even on direct appeal of a judgment of conviction where the defendant is entitled to be informed of his right to appeal, there is no requirement that he be informed of every procedure to be followed. Petitioner Bragg said in the notice of appeal that he had “requested the circuit court to cause the transcript of the designated record on appeal deemed essential to be ordered,” but he does not say he contacted the court reporter nor is there any other evidence that he did so.

All litigants, including those who proceed pro se, must bear responsibility for conforming to the rules of procedure or demonstrating a good cause for not doing so. Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986); Perry v. State, 287 Ark. 384, 699 S.W.2d 739 (1985); Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); see also Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986). Petitioner here offers no explanation for his failure to contact the court reporter. His reliance on a fellow inmate for legal advice does not excuse him from following proper procedure. Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987).

Motions denied.

Hickman and Purtle, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I agree with everything said in the majority opinion. But the decision is wrong because of what is not said.

The procedures in Arkansas for ordering transcripts in these kinds of cases are by no means uniform. In some counties, a pro se appellant, who is declared indigent, must only file a timely notice of appeal to receive a transcript at public expense. In some counties, the circuit judge informs the clerk that the appellant is indigent and, upon such notice, a record is prepared. In other counties, the circuit court does not take on this responsibility and the appellant himself must contact the court reporter.

So, if you are an indigent person in some counties, you get an appeal; if, unfortunately, you are like the petitioner, you lose. Justice can never be administered that way. The result is irrational, and we have to remedy the situation.

Since we cannot, and perhaps should not, tell certain counties to stop doing appellants a favor, we should simply see that appellants not so fortunate do not suffer. I would allow the record to be filed. That does not mean I alter my stand that Rule 37 should be repealed. But as long as it exists, we should prevent unfair procedural technicalities from depriving a defendant of access to the appellate court.

John I. Purtle, Justice,

dissenting. The petitioner filed a request for relief pursuant to A.R.Cr.P. Rule 26.1 on February 27, 1987. He sought to vacate his guilty plea which had been entered some time before. He filed the petition and a form to proceed in forma pauperis in the circuit court on March 11,1987. After having heard nothing on his petition, he filed a petition for writ of mandamus about July 28,1987, in the Arkansas Supreme Court. After inquiry from the office of the Criminal Justice Coordinator, the trial court denied the petition to vacate the guilty plea. The request for relief was treated by the trial court as a Rule 37 petition. The request was denied on September 21, 1988, about seven months after it had been filed. Notice of appeal was filed on October 16, 1987.

On October 4,1988, the petitioner filed a form in this court in order to comply with this court’s in forma pauperis rule. A motion for belated appeal and rule on the clerk was filed on November 2,1988, along with another in forma pauperis motion. The transcript, which consists of six pages, had already been forwarded to the clerk of this court.

Upon actual consideration of the petition, this court found a procedural error: the transcript was not timely ordered by the inmate. The court apparently fails to recognize that this notice of appeal and request to proceed in forma pauperis were forwarded from the maximum security unit at Cummins. That is hardly a place where one would expect an inmate to be able to contact the court reporter and order the record. The notice of appeal was filed by the petitioner. He was not notified that he needed to do anything other than what he had done. In this case, the court has decided that this inmate is not entitled to the consideration he would have been given if he had been represented by an attorney.

A.R.Cr.P. 36.9 governs the question presented in this appeal. This riile requires that the notice of appeal contain either a statement by the appellant or his attorney that the transcript has been ordered or a petition to obtain the record as a pauper. The latter option is exactly what the appellant did in this case. His petition to proceed as a pauper implicitly includes a request for a transcript.

Once a prisoner has been granted the right to proceed in forma pauperis, the court should automatically order the reporter to prepare the transcript for the inmate. It would take only a minute of the court’s time. Moreover, the reporter is usually present at the proceedings. Conversely, it is a vain gesture to grant an appeal and then deny the appellant the right to perfect his appeal by refusing to furnish the record. This is yet another example of how far this court will go to affirm the conviction of a person by a trial court. In this case the court has gone beyond the bounds of reason and justice.


author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

text:
    Evelyn CAGLE v. Joe FENNEL, d/b/a Jose’s Bandito Club, Inc.
    88-248
    761 S.W.2d 926
    Supreme Court of Arkansas
    Opinion delivered December 19, 1988

      Murphy and Carlisle, by: John Wm. Murphy, for appellant.

      Bassett Law Firm, by: Wm. Robert Still, Jr., for appellee.
   Jack Holt, Jr., Chief Justice.

The sole issue in this appeal is whether the trial court erred in dismissing appellant Evelyn Cagle’s personal injury suit with prejudice under ARCP Rule 37(d) after Cagle twice failed to attend scheduled depositions and further failed to pay certain costs and fees charged against Cagle for the discovery violations. Finding no abuse of discretion, we affirm.

On June 10, 1987, Cagle filed suit against appellee Joe Fennel, d/b/a Jose’s Bandito Club, Inc. Subsequently, she was notified that a deposition of her testimony was scheduled for September 14, 1987. Cagle did not appear. Counsel for both parties then rescheduled the deposition for September 25,1987. Cagle again failed to appear. Thereafter, appellee Fennel filed a motion to dismiss under ARCP Rule 37.

At a hearing on the motion, Cagle testified that she did not attend the September 14 deposition because she had previously called her attorney and left word with his secretary to change the deposition date. She also asked that they call her and “let [her] know.” However, Cagle merely assumed that anew date would be set and admitted that she never received notification of a change or resetting prior to September 14. Hence, the September deposition date had remained in effect.

Cagle testified that after the September 14 mixup, she was informed by her attorney that another deposition was scheduled for September 25. She stated that it was her fault that she did not attend the September 25 deposition as she had simply forgotten about it. The record does not indicate that the attorney attempted to remind Cagle of either deposition date. Such notice could possibly have prevented the problem before us now.

At the conclusion of the hearing on appellee Fennel’s motion to dismiss, the trial court ruled as follows:

I think this matter is one in which — it has been shown under the testimony and the exhibits, that this is not one time that Mrs. Cagle has failed to appear, but two times. Now Mrs. Cagle, I understand that, you know, everybody forgets things once in a while and there’s a lot of problems in raising children and getting down here for these depositions, but by the same token, this is a serious matter as far as the defendant is concerned . . . and under the law you have certain duties to perform____Now, the Court takes a very dim view of someone failing to appear for their depositions. Attorneys take their time out of the office, court reporters take their time out to come take these matters, and what greatly concerns me is, it didn’t just happen once, it happened twice. Now, when you have something scheduled you better make sure that your lawyer, and not the secretary, tells you, well, don’t come. You didn’t even check back to find out what had happened about your request to move it.
[Appellee’s counsel] wants the drastic remedy of me dismissing your lawsuit. I don’t know, he has some pretty good arguments for it to be dismissed in that this has happened not once, but twice. I feel that everybody ought to have their day in court and I hate to penalize people, but Fm giving you fair warning, if there is any problem with discovery in this case again and it’s your fault, Fm going to seriously take the matter up on dismissing this lawsuit. Now Fm going to order that you pay the expenses involved in this matter.

The trial court entered an order directing Cagle to reimburse appellee Fennel for his costs, expenses, and attorney’s fees in connection with the two deposition settings. The order further provided that in the event Cagle did not comply within thirty days following approval of appellee’s statement of costs, her suit would be subject to dismissal either with or without prejudice. Fees and costs in the amount of $500.00 were approved on January 14, 1988.

On February 12, 1988, Cagle filed a motion to vacate or modify which requested additional time in which to pay or that the costs be considered as a set-off. On April 1, 1988, some 78 days following the January 14 approval of Fennel’s costs and fees, the court entered an order finding that Cagle’s failure to appear at her depositions was unexcused and unjustified. The court denied the motion to vacate its earlier order and concluded that the suit should be dismissed with prejudice.

Rule 37(d) of the Arkansas Rules of Civil Procedure deals with the failure of a party to attend his or her own deposition and provides, in part:

[T]he court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B) and (C) of subdivision (b)(2) of this rule. In lieu of any other order or in addition thereto, the court shall require the party failing to act. . . to pay the reasonable expenses, including attorney’s fees, caused by the failure ....

Subdivision (b)(2)(C) provides the following sanction:

An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. [Emphasis ours.]

Cagle’s sole argument is that the trial court abused its discretion in dismissing her suit with prejudice and in denying the motion to vacate. Citing authority from other jurisdictions, Cagle argues that a dismissal with prejudice would be warranted only where the failure to attend a deposition was willful, deliberate, or otherwise characterized by a conscious or culpable disregard of discovery obligations. She then points out that the facts do not demonstrate a willful or deliberate disregard of the discovery rules and that the court could have imposed a less severe sanction in light of Cagle’s financial and family problems.

Our rules do not require a finding of willful or deliberate disregard under the circumstances. In Mann v. Ray Lee Supply, 259 Ark. 565, 535 S.W.2d 65 (1976), this court affirmed an order for default judgment entered against a defendant for his failure to answer interrogatories propounded by the plaintiff. The defendant had failed to answer the interrogatories within the 15 days allowed by statute and an order was entered directing that he respond within 10 days or suffer sanctions including a possible default judgment. The defendant again failed to respond and the court entered a default judgment. In affirming the trial court, we found it significant that the judge had pointedly warned the defendant that failure to comply with the discovery obligations would subject him to certain statutory sanctions. That same consideration applies here.

While we recognize that dismissal with prejudice is a drastic sanction, the record demonstrates obvious concern by the trial judge that Cagle have her day in court and that she not be unnecessarily penalized. Accordingly, the judge first chose not to dismiss Cagle’s suit despite his finding that her failure to attend the scheduled depositions was unexcused and unjustified. Instead, the court conditioned continuation of the suit on the fair and reasonable requirement that Cagle reimburse appellee Fennel’s costs and fees, which is specifically permitted under Rule 37. Only upon Cagle’s failure to pay within the time prescribed or to present facts demonstrating a clear inability to pay within that time did the court proceed some 47 days later as warned in its earlier order; namely, the suit would be dismissed with prejudice.

In light of Cagle’s failure to attend either deposition, compounded by the subsequent failure to pay the costs and fees assessed by the judge in lieu of and to avoid dismissal, we find that the trial court acted well within its discretion in entering its final order dismissing Cagle’s suit with prejudice.

Affirmed.

Hickman, J., concurs in the result, finding it was the appellant’s lawyer’s fault.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. This decision is wrong for two reasons. First, it denies the appellant without money the right to have her claim adjudicated in the courts. Second, the sanctions imposed were too harsh and beyond those authorized by Rule 37(d).

The appellant notified her attorney prior to the first scheduled deposition that she would be unable to attend. I think she was justified in believing her attorney would either have the deposition rescheduled or contact her and tell her she must attend. The second time the deposition was set the appellant simply forgot about it. Again, it was the responsibility of her attorney to remind her and see that she was present or had a valid reason for failing to be present.

Additionally, I do not believe that it cost the appellee $500 to not take the first deposition. Obviously it took only a few minutes to determine that she was not going to be there. It certainly has not been shown that the appellant’s failure to attend the deposition was willful, deliberate, or characterized by a conscious disregard of her discovery obligations. In fact there had been no order issued in the case, and, so far as the record shows, she had not been informed of the severity of failure to attend. Perhaps she would not have forgotten had she been properly warned.


author: Jack Holt, Jr., Chief Justice.

text:
    Russell Jay WILLMON v. Deborah Lynn HUNTER
    88-225
    761 S.W.2d 924
    Supreme Court of Arkansas
    Opinion delivered December 19, 1988

      Walter G. Riddick III, for appellant.

      Lovell, Arnold & Nalley, by; Gary M. Arnold, for appellee.
   Jack Holt, Jr., Chief Justice.

Two questions are presented by this appeal: (1) does public policy prohibit a man from seeking to establish his paternity of a child conceived during the mother’s marriage to another party yet born out of wedlock, and (2) is the presumption of the legitimacy of a child conceived during a marriage irrebuttable. The answer to both questions is no.

On April 25, 1986, Dwight Hunter commenced divorce proceedings against appellee Deborah Lynn Hunter. About this time, appellant Russell Jay Willmon allegedly entered into a sexual relationship with Deborah Hunter which continued until June 1986. Subsequently, on July 3,1986, Dwight was granted an uncontested divorce. Deborah Hunter gave birth to a child out of wedlock in February 1987. She remarried Dwight Hunter on April 15, 1987.

On April 24, 1987, Willmon filed a complaint in county court against Deborah Hunter alleging that he was the father of a child born to her on February 3, 1987. He asked that the court determine paternity and award permanent custody of the child to him. On August 13,1987, the county court conducted a hearing. From the pleadings, testimony of the plaintiff, statements and arguments of counsel, the county court found “that it lacks subject matter jurisdiction, and, therefore, plaintiffs complaint in paternity and petition for custody, should be, and is hereby denied.” From this finding, Willmon appealed to circuit court.

On November 19, 1987, the circuit court reviewed the pleadings of the parties, heard arguments of counsel, and dismissed the suit, stating:

(1) The presumption of legitimacy of the child which is the subject of plaintiffs action, is irrebuttable by the facts presented.
(2) It is against the public policy of this state to allow a third party to attempt to illegitimize a child as sought herein.

Willmon appeals to us from the trial court’s order of dismissal.

Ark. Code Ann. § 9-10-104(a) (1987) provides that any man alleging to be the father of an illegitimate child may petition the county court for a determination of the paternity of the illegitimate child. Although Chapter 10 of our Code, which deals with paternity, does not provide us with a definition of the term “illegitimate child,” it is generally conceded that an illegitimate child is a child who is born at the time that his parents, though alive, are not married to each other. Likewise, it has long been a general principle of law that a child is considered legitimate if the parents were married at the time of its conception and before its birth, even though they were not married to each other at the time the child was born. State v. Bowman, 230 N.C. 203, 52 S.E.2d 345 (1949). See also, Madden v. Madden, 338 So.2d 1000 (Miss. 1976). That principle was recognized by our General Assembly when enacting legislation concerning inheritance. The General Assembly declared that “[a] child born or conceived during a marriage is presumed to be the legitimate child of both spouses” for all purposes of intestate succession. (Emphasis ours.) See Ark. Code Ann. § 28-9-209 (1987).

The trial court was wrong in finding that the presumption of legitimacy of a child conceived but not born during marriage, is irrebuttable. Likewise, the trial court erred in holding that it is against the public policy of this state to allow a third party to attempt to illegitimize a child which was conceived but not born during marriage. In fact, one of our more recent cases strongly, suggests to the contrary. In Thomas v. Pacheco, 293 Ark. 564, 740 S.W.2d 123 (1987), Patti Ann Pacheco brought suit to determine the paternity of a child born to her on June 3, 1984. She was married at the time of conception and at the birth of the child to Carlos Pacheco, but claimed that Vincent Thomas was the father. Blood tests indicated that the husband could not be the father and that it was virtually certain (99.5 %) that Thomas was the father. This court did not make mention of irrebuttable presumptions of legitimacy of a child conceived during a marriage or a public policy of this state not to allow a third party to illegitimize a child which was conceived during a marriage. To the contrary, we permitted the parties to litigate the issues of illegitimacy. In doing so we stated “marriage is still considered an honorable institution; children born during marriage should be deemed legitimate, and legal efforts to declare such children illegitimate are not and should not be made easy.” We noted,

Belief in that principle is so great that we have created a legal presumption to protect it. This presumption, that a child born during marriage is the legitimate child of the parties to that marriage, is one of the strongest presumptions recognized by law. [citation omitted] It is rebuttable only by the strongest type of conclusive evidence ....

See Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987); Spratlin v. Evans, 260 Ark. 49, 538 S.W.2d 527 (1976).

The same thing can be said with reference to children conceived but not born during marriage; presumptions should work in favor of legitimacy. These presumptions, however, do not preclude a party from litigating the issue of paternity. Moreover, we do not have, nor do we declare, a public policy which would prohibit such litigation.

Since under these facts we are not faced with an irrebuttable presumption, nor a public policy which precludes a determination of the paternity of a child conceived but not born during the mother’s marriage, it is necessary that we reverse and remand this case to the trial court.

Ark. Code Ann. § 9-10-118 (1987) provides that the circuit court shall hear cases de novo and shall render such judgment on appeal from the county court as law and evidence require. Accordingly, the trial court should hear this matter on its merits.

Reversed and remanded.


author: Darrell Hickman, Justice.

text:
    Gerald TURNER v. Jane LAMITINA
    88-184
    761 S.W.2d 929
    Supreme Court of Arkansas
    Opinion delivered December 19, 1988

      David Hodges, for appellant.

      James A. McLarty, for appellee.
   Darrell Hickman, Justice.

The question in this case is whether certain testimony admitted at trial was relevant. We reverse the trial court’s ruling admitting the evidence.

This case is a result of an automobile accident at an intersection in Newport, Arkansas. Traffic lights controlled the actions of both drivers. The appellant, owner of a vehicle driven by his daughter, claimed the appellee ran a red light, and the driver of his vehicle had a green light. The appellee also said she had a green light and claimed that the traffic light had malfunctioned. On cross-examination by the appellee, the officer investigating the accident agreed that repeated complaints had been received that this particular light had malfunctioned. The officer told the appellee that it was possible that the light gave conflicting signals.

The question to us arises from appellee’s offer of an officer’s testimony that a similar traffic light in the city, on the same road about a quarter to a half mile away, had malfunctioned exactly the same way — green lights both ways — six months after this accident. Initially, the trial judge ruled the evidence was not admissible; then he reversed himself and decided to allow the testimony. But he would not allow testimony that the light in question malfunctioned 15 months later.

We have held repeatedly that the relevancy of evidence is within the trial court’s discretion, subject to reversal only if an abuse of discretion is demonstrated. Dalton v. City of Russellville, 290 Ark. 603, 720 S.W.2d 918 (1986); Arkansas Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976). However, in this case the trial judge abused his discretion in admitting evidence not shown to be relevant.

A.R.E. Rule 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The definition of relevant evidence is broad, yet in order to be relevant the evidence must be probative of the proposition toward which it is directed.

The testimony the trial judge admitted concerned an accident occurring six months later at a different intersection. Presumably, the appellee introduced the evidence to show that the traffic light in question malfunctioned. Yet a proper foundation demonstrating the factual relevance of this evidence was not established. There was no testimony that the traffic lights were identical or that they operated in sequence or from the same central electrical system. All we have is the officer’s statement that the lights were “similar.” Thus, whether a malfunction at one intersection had any relevance to an alleged malfunction at a different intersection was totally conjectural.

In Arkansas Power & Light Co. v. Johnson, supra, we said the following:

Admission of evidence of subsequent incidents, like that of prior incidents poses the question of relevancy, even though the admission of the former must be approached with greater caution than the latter.

Before evidence of subsequent incidents may be received into evidence a proper foundation demonstrating the probative relevancy of this information must be presented. Factors to consider are the remoteness in time and the similarity of circumstances.

No foundation for the relevance was established nor was any factual similarity of circumstances proven. The trial judge’s first instinct was correct. The appellee had not demonstrated the relevance of an incident far removed in time and which occurred at an entirely different intersection.

Reversed and remanded.


author: John I. Purtle, Justice.

text:
    Thomas M. KINGHORN v. James O. HUGHES, Individually and as Co-Trustee of the Willa B. Hughes Trust
    88-238
    761 S.W.2d 930
    Supreme Court of Arkansas
    Opinion delivered December 19, 1988
    [Rehearing denied January 23, 1989.]

      Martin, Vater, Karr & Hutchinson, by: Charles Karr, for appellant.

      Parker Law Firm, by: Kyle D. Parker and Douglas W. Parker, for appellee.

      Dudley, J., would grant; Hays, J., not participating.

   John I. Purtle, Justice.

This is an appeal from the decree of the chancellor entered on October 1,1987, holding that the Willa B. Hughes Trust was never established, implemented, or funded; that the two warranty deeds attached to the declaration of trust were a cloud on James Hughes’ title and should be set aside; that the warranty deeds dated June 19, 1953, transferred the real property here in question to Mr. and Mrs. Hughes as tenants by the entirety; and that upon the death of Willa B. Hughes title to these lands passed by operation of law to James O. Hughes. For reversal the appellant argues: (1) the court erred in holding that the Willa B. Hughes Trust was never established, implemented or funded; (2) the court erred in ruling upon the validity of the trust; and (3) the chancellor erred in holding that the deeds from Willa B. Hughes to herself and her husband were valid and that they created an estate by the entirety. For reasons stated below we reject all three arguments and affirm the decree of the chancellor.

Willa B. Hughes and James O. Hughes were married in 1942. It was the second marriage for Mrs. Hughes; she had one son, Thomas M. Kinghorn, born of her first marriage. Mr. Hughes did not have children at the time and no children were born of this marriage.

Between 1942 and 1953 the parties acquired certain real estate, apparently in the name of Willa B. Hughes. However, she executed deeds to a third party in 1953, and deeds were in turn executed to her and James O. Hughes as tenants by the entirety.

In 1971 Willa B. Hughes executed deeds to the property to a trust which she and her husband intended to establish at that time. A trust instrument was prepared, along with two deeds purportedly conveying the property to the Willa B. Hughes Trust. Both parties signed the trust agreement. However, Mr. Hughes never signed the deeds. The trust instrument purported to establish the Willa B. Hughes Trust and the James O. Hughes Trust, with the provision that upon the death of both of the Hugheses, the named trustees, the property would pass to the Thomas M. Kinghorn Trust. No tax returns were ever filed for the trust, and neither the deed nor the trust instrument was ever filed of record. The only tangible evidence of establishment of the trust was the opening of some bank accounts. These accounts were in the name of the Willa B. Hughes Trust. Both parties were given the right to sign checks.

Shortly before Willa B. Hughes died in 1986, her son, the appellant, came to Arkansas from California and became interested in the trust. Mr. Hughes and Kinghorn never seemed to get along, and shortly after the death of Willa B. Hughes the appellant filed suit for an accounting and confirmation of trustees. On September 9, 1986, Mr. Hughes recorded the two 1953 deeds. On September 22,1986, the appellant recorded the 1971 deeds.

The burden of proof to establish the existence of a trust is upon the party alleging the existence of the trust. Kansas City Life Insurance Company v. Taylor, 184 Ark. 772, 43 S.W.2d 372 (1931). Therefore, before the court could take any action affecting the trust property, it must first be established that the trust existed. Unless the trust was legally established, there could be no duties and responsibilities of trustees.

We must examine the facts to determine whether the trust existed. The deeds prepared and executed in 1953 conveyed the property to J.O. Hughes and Willa B. Hughes as “joint tenants with express rights of survivorship.” (These lands are the same as those later purportedly transferred to the trust in 1971.) A conveyance to parties who are married creates a tenancy by the entirety. Robinson v. Eagle, 29 Ark. 202 (1874). Each of the tenants by the entirety is secure against the impairment of their property rights through the sole act of the other. Franks v. Wood, 217 Ark. 10, 228 S.W.2d 480 (1950). The evidence presented to the trial court was clearly sufficient to support the decree that, subsequent to the execution of the 1953 deeds, the property was owned by Willa B. Hughes and James O. Hughes as an estate by the entirety.

In making the determination that the Willa B. Hughes Trust was never established, the trial court took into consideration such other matters as the testimony that the trust was established for tax purposes only; that the lands were never actually conveyed to the trust; that no taxes were ever paid or tax returns filed on the trust property; that the property and bank accounts remained exactly as they were before the trust papers were executed; and that neither the trust instrument nor the deeds were ever recorded. Upon review of the record, it is fair to say that the facts support the chancellor’s decision that the parties never took any action with respect to the trust after it was executed in the lawyer’s office. Certainly it cannot be said that James O. Hughes complied with the terms of the trust agreement because he never executed the deeds to the trust. His reason for not doing so is not explained, and we cannot speculate. All of the papers, documents, and records remained in the joint possession of the parties after the 1971 execution of the trust papers. Moreover, the trial court appointed a trust officer of a bank to make an interim report on the trust. The temporary trustee reported that he was unable to make a report because he could find no evidence that the trust had actually been established.

We find that the decree of the chancellor was not clearly against the preponderance of the evidence. Although we review decisions of the chancery court de novo, we do not set aside findings of fact unless they are clearly erroneous. Since we agree with the chancellor’s decree that the trust was never established, it is not necessary to reach the other arguments of the appellant.

The probate court retained jurisdiction of the case since there are certain properties of the estate of Willa B. Hughes that have not yet been distributed. The funeral and tax bills are still to be paid from present deposits. The decree of the chancellor holding that the trust was never established and cancelling the deeds to the trust is affirmed.

Affirmed and remanded.


author: Robert H. Dudley, Justice.

text:
    Leo J. PHILLIPS, a/k/a Calvert McGee v. STATE of Arkansas
    CR 88-123
    761 S.W.2d 933
    Supreme Court of Arkansas
    Opinion delivered December 19, 1988

      William R. Simpson, Jr., Public Defender, and Thomas B. Devine III, Deputy Public Defender, by: Thomas B. Devine III, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of.the Class C felony of theft of property. The applicable statute, Ark. Code Ann. § 5-36-103 (1987), provides that theft of property is a Class C felony if one takes the property of another person and the value of the property is more than two hundred dollars, but less than two thousand five hundred dollars. Appellant does not deny that he took a total of $300.00 from the victim’s purse. However, he argues that only $200.00 of the money was the property of the victim, as the other $100.00 was being held by the victim in her capacity as treasurer of her church. Thus, he argues there is no substantial evidence that he took the “property of another person” of a value of “more than $200.00.”

The argument ignores the statutory definitions of “property of another person” and “amounts involved.” Ark. Code' Ann. § 5-36-101(7) (1987) provides: “Property of another person means any property in which any person . . . has a possessory or proprietary interest. . . .” Here, the victim has a proprietary interest in the $200.00 which was her own money, and a possessory interest in the $100.00 which she was holding as treasurer for her church. Under this definition the evidence was sufficient to convict the appellant.

In addition, Ark. Code Ann. § 5-36-102(c)(2) (1987) provides: “Amounts involved in theft committed pursuant to one . . .course of conduct. . . may be aggregated in determining the grade of the offense.” When the two sums are so aggregated, the total justifies the Class C felony in the case.

Under this definition the evidence was also sufficient to convict the appellant.

Affirmed.


author: Robert H. Dudley, Justice. Tom Glaze, Justice,

text:
    Deborah Rae (Rawlins) STAMPS v. Paul Eugene RAWLINS
    88-239
    761 S.W.2d 933
    Supreme Court of Arkansas
    Opinion delivered December 19, 1988

      Clark & Clark, by: Greg Clark, for appellant.

      Matthews, Campbell & Rhoads, P.A., by: Johnnie Ember-ton Rhoads, for appellee.
   Robert H. Dudley, Justice.

This child custody case was certified by the court of appeals to us to decide whether a chancery court can award custody of a child to a stepparent, rather than to a natural parent. We hold that a chancellor may award custody to a stepparent, but reverse the decision doing so in this particular case.

The stepchild in this case, Ryan, was only three months old when his mother, appellant, and stepfather, appellee, were married. He was about five years old at the time the parties were divorced. In the divorce decree, entered on February 5,1987, the chancellor awarded custody of Ryan to his mother, appellant, with a right of reasonable visitation in the appellee. Only three weeks later, on February 27, the appellant, mother, filed a petition for modification of the decree on an unrelated matter. The appellee, stepfather, filed a counter-petition requesting modification of the decree with respect to Ryan. On September 29, 1987, a little over six months after the original decree, the chancellor ruled on the merits of the petitions and ordered that split custody of Ryan be placed in appellant and appellee. That is, the appellant and appellee each were awarded custody on an alternating-week basis. In his findings of fact, the chancellor found that the appellee was the only father that Ryan had ever had and that appellee treated Ryan as his own child. Further, and more significantly, the chancellor found that both parties were “fit and proper to have custody.”

Almost all of the law in Arkansas regarding custody of children is common law. We have only one statute on custody, and it provides that the award shall be made solely on the basis of the welfare and best interests of the child and must be made without regard to the sex of the parent. Ark. Code Ann. § 9-13-101 (1987). The statute makes no reference to whom custody may be awarded. However, under our case law it is clear that a stepparent can be awarded custody of a minor child. See, e.g., Goins v. Edens, 239 Ark. 718, 394 S.W.2d 124 (1965). Nevertheless, our case law specifically establishes a preference for natural parents in custody matters, and provides that the preference must prevail unless it is established that the natural parent is unfit. Goins v. Edens, supra; Hancock v. Hancock, 198 Ark. 652, 130 S.W.2d 1 (1939); Loewe v. Shook, 171 Ark. 475, 284 S.W. 726 (1926). The court of appeals followed this preference in a case very similar to the one at bar. McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983). The preference is based on the child’s best interests.

Here, the chancellor specifically found that the appellant mother was a fit and proper person for custody. Our de novo review of the record sustains that finding. Therefore, custody of Ryan should have been left in the appellant, and it was error for the court to rule otherwise. It makes no difference that split custody, rather than full custody, was awarded.

The appellant next argues that the chancellor erred in changing Ryan’s last name to Rawlins. This argument is without merit. The appellee did not ask, either by written pleading or oral request, that Ryan’s name be changed. Yet, in his findings of fact the chancellor found that Ryan’s surname should be changed. The appellant first argues that the procedure was erroneous. The appellant was cross-examined by the appellee’s attorney on the issue of the child’s surname, and the chancellor personally asked the appellant a series of seven questions about the names. The appellant should have informally been on notice that the court was considering changing Ryan’s last name. ARCP Rule 15 provides in material part: “When issues not raised by the pleadings are tried by . . . implied consent of the parties, they shall be treated ... as if they had been raised in the pleadings. . . .” The issue seems to be fully developed, and we see no unfair prejudice to appellant in the matter. Finally, the ruling is in the best interest of Ryan.

Next, appellant argues that the name change was not in compliance with Ark. Code Ann. § 9-2-101 (1987), the statute setting out the formal procedure for a name change. It is true that the name change was not in compliance with the statute, but it was still a perfectly valid procedure. As we explained in Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952), and Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978), this statute does not repeal the common law power of a chancery court to change a minor’s name when it is in the best interest of the minor to so do. The statute simply affords an additional method of effecting a name change and is supplementary to the common law. Further, this is a matter in which the chancellor has broad discretion. Clinton v. Morrow, supra.

Here, the chancellor, in his findings of fact, stated: “I am not at all impressed by the fact that Ryan is being known as someone else. Again being made to feel different.” Further, the chancellor found that appellee Rawlins was the only father Ryan had ever known and that appellee treated Ryan as his own. Under these circumstances, we cannot say the chancellor abused his broad discretion in ordering the name change on Ryan’s school records. We do note, however, that the procedure used may have violated the biological father’s right to notice and due process. See Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978).

In addition to the custody dispute over the stepson, Ryan, there was a custody dispute over Tara, a biological child of the parties. In the original decree of divorce, granted February 5, 1987, the chancellor awarded custody of Tara to the appellant. On December 22, 1987, he made a change in the award. The appellant now argues that there was no material change in circumstances between the two decrees and, therefore, the chancellor erred in changing custody.

Our law on the subject is clear. A judicial award of custody should not be modified unless it is shown that there are changed conditions which demonstrate that a modification of the decree is in the best interest of the child. Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973). The only other time a change is permissible is when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered. Henkell v. Henkell, 224 Ark. 366, 273 S.W.2d 402 (1954).

The chancellor did not make a finding of fact aboút a change in circumstances. However, our de novo review of the record reveals that there was sufficient evidence from which the chancellor could have found a change in circumstances after the initial decree. It includes testimony that the appellant screamed and yelled at the appellee in front of Tara; that appellant telephoned the appellee numerous times while appellee was attempting to visit Tara; that Tara was dirty when appellee picked her up; that she had an infected ear and a dirty scalp; that on four separate occasions she had bruises on her lower body, which could have been caused by appellant’s use of excessive force; that appellant forced Tara to eat in the garage on at least one occasion, and that when Tara rang the doorbell and asked for a glass of water she was spanked; and finally, that Tara wanted to live with appellee, and when told she had to go home with appellant, she suffered stomach problems.

The foregoing is sufficient to show a change in circumstances, therefore, the chancellor did not err in modifying the decree.

Affirmed in part; reversed in part; and remanded for entry of a decree consistent with this opinion.

Hickman, J., dissents.

Glaze, J., concurs in part and dissents in part.

Tom Glaze, Justice,

concurring in part; dissenting in part. The parties’ original agreement was incorporated in their divorce decree, and it provided that both parties were fit and proper persons to have primary care and custody of the minor children, Tara and Rane. The decree awarded the parties immediate joint custody of Tara, but gave the appellant initial custody.of Rane until he attained the age of two years, at which time the parties would commence exercising joint custody of both Rane and Tara. The parties’ agreement delineated the manner in which the joint custody of both children would be exercised. The parties’ agreement and decree further provided that appellee would have visitation rights with Ryan, appellant’s son and appellee’s stepson.

Only a few weeks transpired after the parties’ divorce when both parties petitioned the trial court, claiming that a material change in circumstances occurred that warranted the court’s modification of the parties’ original agreement and decree. The chancellor heard conflicting charges by each party against the other and concluded that both were fit and proper parties to have custody of the children. Consistent with that holding, the chancellor never mentioned a single change in circumstances that occurred since the parties’ original decree had been entered. The judge attentively listened to the charges of the respective parties and their witnesses, and he methodically noted and specifically discounted most of the serious ones. As an example of how the chancellor resolved some of the parties’ countervailing charges, I note the following excerpt from the chancellor’s findings:

It wasn’t developed but the Court concluded, may have not tied a square knot but I’ve tied a knot in regards to Mr. Rawlins drinking. He seems to be one of those fellows who has a beer or two when he comes homes from work. I’m not overly impressed by drinking in front of the children. Lots of fathers do it. Mothers do it. I don’t encourage it mainly because I don’t have much use for — . Well, I don’t think drinking is, alcohol is. It’s different than smoking marijuana. All the studies have shown that. But I don’t approve of it, quite frankly. I certainly don’t approve of the use of marijuana or cocaine or any other illegal drug inside or outside the presence of the children. It’s a crime to do it. Society has defined it as a crime. Especially, of course, there is no proof, the Court is not convinced that there has been any of that in the presence of the children. If I were, my decision in this case would be a little bit different than what you’re gonna hear in a few minutes. But be aware that if there were proof of use of illegal drugs in the presence of the children or if there was proof of intoxication by alcohol in the presence of the children, the Court would do differently than what I am doing.” (Emphasis added.)

Even though the chancellor’s findings reflect no material changes in circumstances had occurred since the parties’ original decree was entered, the chancellor still proceeded to modify the decree by awarding both parties joint custody of Ryan and changing the manner in which the parties were to exercise joint custody of Tara. In doing so, the chancellor clearly erred.

It has been long-settled as to when a chancellor is empowered to modify a custody decree. In the early case of Weatherton v. Taylor, 124 Ark. 579, 187 S.W. 450 (1916), this court, quoting from 9 Ruling Case Law, page 476, stated in pertinent part as follows:

A decree fixing the custody of a child is, however, final on the conditions then existing, and should not be changed afterward unless on altered conditions since the decree, or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child.

The majority court, in the present case, concedes the chancellor did not make a finding of fact about a change in circumstances. In fact, the majority, in its opinion, relied on the chancellor’s finding that the appellant mother was a fit and proper person for custody, when it held the chancellor erred in modifying the original decree by removing Ryan from the appellant’s sole custody and in awarding joint custody of Ryan to the parties.

By some convoluted reasoning, the majority, on the same record, then upholds the chancellor’s decision to modify the parties’ original decree by changing the manner in which the parties had agreed to exercise joint custody of Tara. In reaching the holding concerning Tara, the majority now chooses to ignore the chancellor’s finding that the appellant was a fit and proper person for custody. For support of this part of its decision, the majority relies on many of the allegations made by the appellee against the appellant. It is all too obvious that the chancellor considered these charges as well as those lodged by the appellant against appellee, and after doing so, he gave no merit to them, finding both parties worthy of having custody of the children. This court, in review, is in no position to second guess the chancellor in this respect, and it commits serious appellate error when it does so.

The chancellor manifested great understanding and patience in this custody dispute, but he erred when he proceeded to change the parties’ original decree when the evidence reflected that no material circumstances had arisen to warrant a modification. While the modification hearing was the first real opportunity that the chancellor had to get acquainted with the parties involved in this matter, the rule governing these custody issues is the same: the parties’ decree must remain unchanged unless altered conditions have occurred since the decree or material facts existed, but were unknown to the court, when the decree was entered. In my view, the majority is clearly wrong in its holding as to the custody issue involving both Ryan and Tara. Regarding the court’s holding as to Ryan’s name change, I concur.

       The decree determined the custody of three children, Tara, Rane, and Ryan. Rane’s custody is not at issue in this appeal.


author: Steele Hays, Justice.

text:
    Reba K. CUNNINGHAM v. Malcolm D. CUNNINGHAM
    88-275
    761 S.W.2d 941
    Supreme Court of Arkansas
    Opinion delivered December 19, 1988

      Orvin W. Foster, for appellant.

      Bob Keeter, for appellee.
   Steele Hays, Justice.

The appellant, Reba Cunningham, and the appellee, Malcolm Cunningham, entered into a separation agreement on October 2, 1975. Commencing in October 1975, the appellee agreed to pay the appellant $500 per month in child support as long as the appellant “shall have custody of the children or either of them.” The Cunninghams divorced on August 18, 1976, with the divorce decree incorporating the October 1975 property settlement agreement.

The appellee stopped paying child support on March 2, 1978, due to financial difficulties. The appellee filed for social security retirement benefits and the appellant eventually received monthly checks for support of the children from the Social Security Administration. On April 27, 1987, the appellant petitioned the Chancery Court of Pope County to grant a judgment for the arrearage in child support due from April 1982, at $500 per month, less the amount of the social security payments received each month by Reba Cunningham.

In a letter decision, the chancellor ruled that no agreement to modify the property settlement agreement occurred and that the social security payments received by the appellant should be credited in lieu of the appellee’s child support responsibilities. Based on the theory of estoppel and/or waiver, the chancellor also held the appellant was not entitled to the child support arrearages. This appeal arises from the chancellor’s ruling that the appellant may not recover child support arrearages. After considering the arguments on appeal, we reverse and remand.

In Sage v. Sage, 219 Ark. 853, 245 S.W.2d 398 (1952), we adopted the rule that chancery courts may remit accumulative payments of child support only under limited circumstances. In Pence v. Pence, 223 Ark. 782, 268 S.W.2d 609 (1954), we affirmed the chancery court’s denial of child support arrearages on the basis that the custodial parent, by her own conduct, interfered with the father’s (non-custodial parent) visitation rights.

Additionally, in Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978), we recognized the mother’s right to unpaid installments of child support except during periods when she rendered the father’s rights nugatory. We reiterated in Holley v. Holley, 264 Ark. 35, 568 S.W.2d 487 (1978), that the chancery court is not required to render judgment for arrearages accruing for unpaid child support when the mother, having custody, deprived the father of temporary custody or visitation rights by failing to comply with the terms of a valid decree governing those rights.

In Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980), the court considered an ex-wife’s entitlement to alimony arrearages. The court recognized the analogous nature of cases dealing with alimony and child support arrearages and said that within limitations attributable to the overriding concern for the welfare of children, cases involving child support arrearages may be considered as precedential in disputes over alimony arrearages and vice versa, stating:

. . . from Sage, Pence and our subsequent decisions, we can say that, as a general rule, an ex-spouse is entitled to judgment for all past due installments of alimony awarded by decree of divorce, not barred by the statute of limitations, unless equity cannot lend its aid because of the actions or conduct of the ex-spouse seeking judgment.” [Emphasis added].

In this case, the appellant did not interfere with the appellee’s visitation rights, nor did she defy the divorce decree. The only conduct which arguably mitigates against equity lending its aid was that the appellant delayed in pursuing her rights to obtain judgment for the accrued child support payments. This fact alone will not justify defeating the appellant’s right to the accrued child support installments.

The chancellor cited Bethell v. Bethell, supra, relying on the theories of estoppel and waiver in denying the judgment for child support arrearages. However, in Bethell the parties had entered into an oral agreement altering the alimony payments and the chancellor based his remission of the arrearages on the basis of that agreement and Dr. Bethell’s reliance upon the agreement. In this case, the chancellor in his later decision stated, “I am of the opinion that there was no firm agreement by the parties to modify the Separation Agreement . . .” Therefore, Bethell provides no precedent. In this case, there was no modification agreement, and hence no potential reliance upon which the chancellor might base his denial of judgment on estoppel or waiver.

We conclude that the appellant is entitled to the child support arrearage. Since we review chancery cases de novo, we would ordinarily determine the amount due. However, we are unable to arrive at that figure reliably on this record and therefore we remand to the chancellor to determine the correct amount.

Reversed and remanded.


text:
    MOTES/HENES TRUST, Bank of Bentonville as Trustee and Elizabeth Henes Motes v. Richard Ruffin MOTES, Mary Elizabeth Motes, John Thomas Motes, Myra Lucinda Motes, and Sam Dod Motes, Jr.
    88-186
    761 S.W.2d 938
    Supreme Court of Arkansas
    Opinion delivered December 19, 1988

      Dickey Law Firm, P.A., and F. Wilson Bynum, Jr., for appellant Elizabeth Henes Motes.

      Friday, Eldredge & Clark, by: Kevin A. Crass, for appellees.
   Steele Hays, Justice.

The single issue presented by this appeal is whether a reference in the testator’s will to a power of appointment was sufficient to exercise a power of appointment in a trust instrument.

Helen Fay Henes, deceased, executed a will in 1979 containing the following residuary clause:

I give, devise and bequeath all of the remainder and residue of my estate together with property to which I may have a power of appointment at the time of my death, to the trustee hereinafter named, to be held in trust for the uses. . . . [Emphasis added.]

In 1982, the Motes/Henes trust was established for Helen Fay Henes and her sister, Elizabeth Henes Motes, in which was placed approximately $6,000,000 from interests the sisters had redeemed from their ownership in certain businesses. The trust contained the following provision:

This trust shall terminate with respect to the separate trust share of each grantor [the two sisters] upon the death of said grantor. Upon such termination, the remaining assets of said separate trust shall be paid to such person or persons or trusts as grantor may, by specific reference hereto, appoint in her Last Will and Testament. [Emphasis added.]

Helen Fay Henes died in April 1983 and in February 1988 the trustee of the Motes/Henes trust petitioned for the consolidation of the probate and chancery proceedings and for construction of the power of appointment in the will. Consolidation was granted and following a hearing the trial court held that the language of the will was sufficient to exercise the power of appointment defined in the trust. The trustee and Elizabeth Henes Motes have appealed. Respondent-Appellees are the children of Elizabeth Henes Motes.

The question is: When a power of appointment requires a specific reference to it, as does the trust in this case, will a general reference in the will be sufficient to exercise the power requiring specific reference?

The general rule is defined in Restatement (Second) of Property, Donative Transfers (1986):

§ 17.1 Significance of Donee’s Intent to Appoint.
In order for a donee to exercise a power effectively it must be established —
(1) That the donee intended to exercise it; and
(2) That the expression of the intention complies with the requirements of exercise imposed by the donor and by rules of law.

The problem here concerns the second requirement and the question we must decide is whether Ms. Henes’ will provision, making reference to “property to which I may have a power of appointment at the time of my death,” is sufficient to exercise the power of appointment in the trust, or does the law require that she must have made reference to the trust instrument itself.

Finding no cases of our own on this topic, we have turned to other sources for guidance. The Reporter’s Note to section 17.1 of the Restatement is primarily devoted to the problem in our case. While the Restatement discusses cases it classifies as “supporting” the rule and those “contrary” to the rule, a closer examination of those cases reveals that the division would be more aptly placed between those cases that construe the “specific reference” requirement literally, and those that favor a flexible interpretation, focusing more on the intent of the donee. See also Annotation 15 A.L.R. 4th 810 (1982), supra, which distinguishes the cases between those that require specific reference and those that do not.

Our research does not produce a clear majority or trend on either side of the question. We prefer the approach focusing on the intent of the donor, however, as we regard it as the better reasoned view. It is also in keeping with our general approach to the interpretation of wills, which has as its paramount principle that the intention of the testator will govern, as well as the rule that wills should be liberally construed. Copeland v. Hames, 238 Ark. 143, 379 S.W.2d 1 (1964); Cross v. Manning, 211 Ark. 803, 202 S.W.2d 584 (1947). And in Moore v. Avery, 146 Ark. 193, 225 S.W. 599 (1920), in construing a will, we held that the phrase, “all my property,” was sufficient to refer to and exercise a power of appointment. While Moore does not involve a “specific reference” requirement, it nevertheless reflects the more liberal approach. See generally, Annotation 15 A.L.R.3d 346 (1967).

In Roberts v. Northern Trust Co., 550 F. Supp. 729 (N.D. Ill. 1982), the court was faced with the same issue and reviewed Illinois law to determine the correct approach. The court found that in a significant power of appointment case, the Illinois court had drawn on three basic principles of will construction: 1) that the intent of the testator controls and courts should construe wills to give effect to that intention; 2) a devise or bequest should not be voided because of errors in describing the subject matter as long as enough remains to show the testator’s intent; and 3) the court will use its equitable powers to correct technical defects in a will in order to effect the testator’s intent. From those general rules the court fashioned the following test for the “specific reference” problem:

Where the evidence of intent is powerful, the question of compliance should be examined in a light which favors fulfillment of both the donor’s desire for assurance and the donee’s intent. Where, however, evidence of the donee’s intent is weak, a liberal construction of the condition of specific reference may well defeat the limitations of both donor and donee.

Following the approach in Roberts, supra, we find the evidence of intent in this case is very strong and therefore have no problem with a more liberal construction of the “specific reference” requirement. The evidence of Fay Flenes’s intent came from the testimony of John L. Johnson, who was the attorney for both sisters. He had drafted the wills for both, and had also drafted the trust agreement. He testified that at the time of drafting the will he had discussed with Ms. Henes how she wanted to dispose of her property and she told him she wanted her sister to be benefitted and the property to go to her nieces and nephews, her sister’s children. The will was drafted to effectuate that intent, giving her sister a life estate through the trust, for her enjoyment during her lifetime, with the property ultimately going to the nieces and nephews.

When Johnson drafted the trust agreement he reviewed Ms. Henes’s will and decided there was no need to make any changes in it. He noted that the provision in the will on the power of appointment would operate to exercise all powers of appointment that Ms. Henes would have, to pass the property under a trust arrangement that was set up under her will. Johnson stated that this was absolutely consistent with his view and understanding of Ms. Henes’ intent.

Johnson further commented that in drafting the trust, which was irrevocable, he wanted to avoid placing Ms. Henes in the position of being unable to change the beneficiaries of her estate by naming them in the trust instrument. By not putting final testamentary disposition provisions in the trust, it retained for Ms. Henes the ability at any point to change her mind as to the disposition of her estate.

The trial court noted that another significant factor was the problem of estate taxes. If the power was not exercised by the will, double taxation would result, and the trial judge observed that people do not intend tax consequences of that nature-. We'agree.

Appellant urges that we must ascertain the intent of the testator at the time of the execution of the will, citing Moore, supra. That is true, but it does not mean that we eliminate after-acquired property from being disposed by way of a will executed previously. See, e.g., Brock v. Turner, 147 Ark. 421, 227 S.W. 597 (1921); Fowler v. Hogue, 276 Ark. 416, 635 S.W.2d 274 (1982). We held in Brock, supra, that when a will manifests the purpose to dispose of all the estate the testator might have at the time of death, it includes after-acquired property. In that case while there were other reinforcing considerations, the court looked primarily at the language of the will which included, “all ... my property,” and the phrase, “also all chattel, property of any kind, including money on hand,” the court emphasizing the phrase “on hand” as referring to the time of death. This is also the rule specifically as it relates to powers of appointment. Restatement (Second) of Property, Donative Transfers, § 17.6 (1986).

In this case, Ms. Henes’ will refers first to, “a// of the remainder and residue of my estate,” and then specifically refers to “property to which / may have a power of appointment at the time of my death.” It seems clear that the testator’s intent at the time of execution was to include any after-acquired property.

AFFIRMED.

       Other cases favoring the “intent” approach include: Roberts v. Northern Trust Co., 550 F. Supp. 729 (N.D. Ill. 1982); Cross v. Cross, 559 S.W.2d 196 (Mo. App. 1977); First Union National Bank v. Moss, 32 N.C. App. 499, 233 S.E.2d 99 (1977); McKelvy v. Terry, 370 Mass. 328, 346 N.E.2d 912 (1976).


author: David Newbern, Justice.

text:
    Timothy C. KLINGER, d/b/a Historic Preservation Associates v. CITY OF FAYETTEVILLE, Arkansas, A Municipal Corporation
    88-211
    762 S.W.2d 388
    Supreme Court of Arkansas
    Opinion delivered December 19, 1988

      Jones & Hixson, by: Lewis D. Jones, for appellant.

      James N. McCord, City Att’y, for appellee.
   David Newbern, Justice.

This is an appeal of the dismissal of a complaint which sought damages because the appellee, City of Fayetteville, wrongfully let a contract to do archeological work without taking bids. We affirm the trial court’s determination that the complaint of the appellant, Timothy Klinger, did not state facts sufficient to state a claim upon which relief could be granted. Ark. R. Civ. P. 12(b)(6).

The background for this case can be found in Klinger v. City of Fayetteville, 293 Ark. 128, 732 S.W.2d 859 (1987), where we held that the city was bound by Ark. Code Ann. § 14-47-138 (1987), formerly part of Ark. Stat. Ann. § 19-716(a) (Repl. 1980), to seek competitive bids for professional services. Upon remand, the chancellor granted to Klinger the declaratory judgment and injunction he had sought in that case.

Klinger then filed a complaint seeking damages in the amount of 1.44 per cent of the “overhead” which had apparently been guaranteed to the party who performed the contract plus 15 per cent of the “total project costs as profit.” The chancellor granted the city’s motion to dismiss the complaint and gave Klinger ten days to plead over. Klinger then amended his complaint, but his allegations remained substantially the same. The complaint was again dismissed.

In his letter ruling dismissing the first damages complaint the chancellor noted that Klinger’s “situation excites sympathy,” however, the chancellor was unable to find any Arkansas authority supporting Klinger’s claim. Cases from other states were also found to be negative.

We find the general rule to be that statutes requiring competitive bidding for government contracts are enacted for the benefit of the taxpayers rather than for the benefit of those who would sell goods or services to governmental entities, Gulf Oil Corp.v. Clark County, Nevada, 575 P.2d 1332 (Nev. 1978); City of Scottsdale v. Deem, 27 Ariz. App. 480, 556 P.2d 328 (1976). Although violation of a competitive bidding statute may create a right to an equitable remedy or mandamus, it does not give rise to a claim for damages. Sutter Bros. Const. Co., Inc. v. City of Leavenworth, 238 Kan. 85, 708 P.2d 190 (1985). See 10 E. McQuillan, Municipal Corporations, § 29.86 (R. Eickhoff and M. Meier, 3d ed. 1981).

We have found no case in which it was held that a governmental body’s violation of a statutory bidding requirement gave rise to an action for damages by a would-be contractor. The closest we have come is Swinerton & Walberg Co. v. Inglewood-Los Angeles County Civic Center Authority, 40 Cal. App. 3d 98, 114 Cal. Rptr. 834 (1974), in which it was held that a cause of action in promissory estoppel was stated by a disappointed bidder who claimed he had submitted the lowest bid. The recovery in that case would have been limited to expenditures made in preparation for bidding in reliance upon the promise. Here we had no promise to let the contract to the lowest bidder, so promissory estoppel is not available to Klinger as a basis of relief. Cf., Premier Electrical Const. Co. v. Bd. of Education of the City of Chicago, 70 Ill. App. 3d 866, 388 N.E.2d 1088 (1979).

In support of his argument for reversal, Klinger cites only Ark. Const, art. 2, § 13, and Baker v. Armstrong, 271 Ark. 878, 611 S.W.2d 743 (1981), for the proposition that for every legal wrong there is a remedy. While we have some of the same sympathy to which the chancellor referred, the point demonstrated by all the authority we have found is that a person in Klinger’s position has suffered no legal wrong where a governmental body fails to follow a statutory competitive bidding requirement.

Affirmed.


text:
    Bennie DANIELS v. John CRAVENS
    88-246
    761 S.W.2d 942
    Supreme Court of Arkansas
    Opinion delivered December 19, 1988

      Wilson, Bell & Neal Law Office, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   Tom Glaze, Justice.

The appellant, Bennie Daniels, brought this negligence and personal injury action against appellee, John Cravens, as a result of a collision between the vehicles each was driving on a highway about six miles outside St. Charles, Arkansas. Daniels was employed by Helena Contracting Co. at the time of the collision, and that company’s workers’ compensation carrier, Liberty Mutual Insurance Company, paid substantial benefits to Daniels for the injuries he sustained as a result of the collision with Cravens. Citing Ark. Code Ann. § 11-9-410 (1987), Liberty Mutual asserted its right to intervene in Daniels’s tort action against Cravens. Daniels responded acknowledging Liberty Mutual’s entitlement to intervene and stated that he had no objection to the intervention. Cravens also did not interpose an objection to Liberty Mutual’s intervention, but he did contend Liberty Mutual should be limited in its participation at trial. In sum, Cravens objected to Liberty Mutual’s attorney, by argument or examination of witnesses, duplicating or “shoring up” the case presented by Daniels and his attorney. The trial judge disagreed with Cravens’s position, and concluded that, because there were three distinct parties, each could participate fully.

After the trial court’s ruling, the parties’ case proceeded to trial and the jury rendered its verdict apportioning the responsibility for the occurrence between Daniels and Cravens at fifty percent each. Accordingly, the trial judge ordered that Daniels and Liberty Mutual take nothing and that their respective complaints be dismissed with prejudice. Daniels, alone, appeals from the judgment, and having employed new counsel, argues that the trial judge erred in allowing Liberty Mutual to participate in the trial below and in permitting references to the compensation benefits paid Daniels.

In affirming this cause, we need only point out that Daniels, in his response below, conceded Liberty Mutual’s right to intervene in the case, and thereupon heavily relied on the testimony of expert witnesses provided by Liberty Mutual. In fact, the only medical doctor testimony produced at trial regarding Daniels’s injury was that of Dr. Samuel Hunter which was introduced via deposition by Liberty Mutual. Liberty Mutual also called a clinical psychologist to testify regarding Daniels’s employment disability.

Daniels’s strategy from the outset of this case was to work in tandem with Liberty Mutual. Now, because Daniels is unsatisfied with the outcome of the trial, he attempts to reverse the case relying on Cravens’s objection at trial that Liberty Mutual’s participation should have been limited. Again, Daniels never objected to Liberty Mutual’s participation in the trial or to any references made at trial to the workers’ compensation benefits paid to Daniels.

It is well settled in Arkansas that, under the doctrine of invited error, an appellant may not complain on appeal of an erroneous action of a trial court if he had induced or acquiesced in that action. Jones v. Dierks Forests, Inc., 238 Ark. 551, 383 S.W.2d 110 (1944); Missouri Pacific Railroad Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944); Briscoe v. Shoppers News, Inc., 10 Ark. App. 395, 664 S.W.2d 886 (1984); J. I. Case Co. v. Seabaugh, 10 Ark. App. 186, 662 S.W.2d 193 (1983). In addition, this court has long held that it will not review an alleged erroneous ruling or order unless a party makes known to the trial court the action which he desires the court to take or his objection to the action of the court and his grounds therefor. Turkey Express v. Skelton Motor Co., 246 Ark. 739, 439 S.W.2d 923 (1969); see also ARCP Rule 46.

As we have already noted, Daniels not only failed to object to Liberty Mutual’s intervention and participation in the trial of this case, but he also actively worked with Liberty Mutual in presenting his case against Cravens to the jury. Under these circumstances, Daniels cannot now complain of Liberty Mutual’s sharing in the presentment of his case and the concomitant references concerning the compensation benefits paid Daniels by Liberty Mutual. Therefore, we affirm.

       Daniels cites State v. Ellison, 287 Mo. 139, 229 S.W. 1059 (1921), for the proposition that Cravens’s objection should inure to Daniels’s benefit. That holding, however, merely provides that, when one of several codefendants makes an objection, it is unnecessary for another to repeat the objection to put himself in a position to base an assignment of error on it on appeal. Here, Daniels, a plaintiff, seeks to benefit from an objection lodged by a defendant, Cravens.


author: Per Curiam.

text:
    Bobby Ray GRISSOM v. STATE of Arkansas
    RC 88-67
    761 S.W.2d 606
    Supreme Court of Arkansas
    Opinion delivered December 19, 1988

      Lyons & Emerson, by: W. Ray Nickle, for appellant.
    No objection.
   Per Curiam.

Appellant, Bobby Ray Grissom, by his attorney, Ray Nickle, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his miscalculation of the ninety-day limit for filing the record in this Court. See Ark. R. App. P. 5(a).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.