author: W. H.“Dub” Arnold, Chiefjustice.

text:
    George L. MALLORY, III v. HARTSFIELD, ALMAND & GRISHAM, LLP, and Larry J. Hartsfield
    01-1407
    86 S.W.3d 863
    Supreme Court of Arkansas
    Opinion delivered October 24, 2002

      Stanley D. Rauls, for appellant.

      Larry J. Hartsfield, for appellees.
   W. H.“Dub” Arnold, Chiefjustice.

Appellant George L. Mallory, III, appeals from a summary judgment granted in favor of the appellees and from a motion, which was deemed denied, made by the appellant, requesting the trial judge to recuse in the matter. The appellant contends that summary judgment was improperly granted and that the trial judge erred in refusing to recuse. We affirm the trial court in all respects.

The underlying facts of the case are as follows. Appellees served as attorney for Earl Adams, the plaintiff in a federal district court civil suit asserting causes of action for breach of contract and the tort of outrage. At that time, Adams was a tenant in appellant’s office building, and he had not made his required monthly payments of rent. Appellant maintains that, in order to remain in the building, Adams assigned to appellant the funds that he would receive from the federal action to pay past due and future rent payments.

Appellant contends that he delivered a copy of the assignment to the appellees at their law office in Little Rock. Although the law firm’s resident agent for process could not recall receiving notice of the assignment from the appellant, he acknowledged receiving a copy from Mr. Adams which he, in turn, gave to the secretary of appellee Larry J. Hartsfield, for delivery to Mr. Hartsfield.

Hartsfield subsequently settled Mr. Adams’s case and disbursed the proceeds to Adams. He stated that no payment was made to appellant because he was “personally unaware” of the assignment. Appellant filed the action below for the distribution of funds contrary to the assignment and for conversion; the appellees requested summary judgment, contending that they had no actual knowledge of the assignment and that said assignment was, in any event, invalid, as neither a cause of action for tort, nor the proceeds thereof, may be assigned. The trial judge initially denied the motion but, after an alleged ex parte telephone conversation between appellees’ attorney and the judge’s law clerk, the trial judge decided that Mr. Adams’s federal case was, in fact, tort litigation, the proceeds of which may not be assigned, and granted appellees’ motion for summary judgment.

The appellant requested reconsideration of the summary judgment, contending that the federal litigation was based on contract, not tort litigation, as represented by the appellees. Appellant also asked that the trial judge recuse from further proceedings because of the ex parte communication between appellees’ counsel and the judge’s law clerk. The trial judge took no action on the motion within the time allowed for modification of judgment, and the motion was deemed denied. This appeal is from the granting of summary judgment and the refusal to recuse.

For his points on appeal, appellant asserts the following:

1) There is no evidence in the record to justify a finding that the assigned proceeds were from tort litigation;
2) The assignment was not invalid; the assignment of an interest in any cause of action is specifically permitted by statute; and
3) The trial judge should recuse from further proceedings.

I. Summary Judgment

The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Bond v. Lavaca School District, 347 Ark. 300, 64 S.W.3d 249 (2001); Dodson v. Taylor, 346 Ark. 443, 57 S.W.3d 710 (2001); Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189, 961 S.W.2d 712 (1998). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.

A. Evidence of Tort Litigation

Judge Ward stated in a telephone conference, wherein he announced that he was granting appellees’ motion for summary judgment, that he was basing his decision on “the attachment to the supplemental brief of the defendant [appellees] in support of its motion for summary judgment.” He stated further:

... I have determined without any hesitancy that this is a cause of action for a tort, and for that reason, make the determination that [it] was not an assignable cause of action under the Farm Bureau case I just read [referring to Southern Farm Bureau Casualty Insurance Company v. Wright Oil Company, 248 Ark. 803, 454 S.W.2d 69 (1970)] because even though it was just an assignment of the proceeds, you cannot assign the proceeds either.

When looking at the record in the case, it is obvious that the federal district court complaint was considered by the trial court. Appellant does not dispute the federal complaint being considered; in fact, all parties agree that the trial judge could certainly consider it, as it was support by and made part of the affidavit attached to appellees’ motion for summary judgment.

We have held that it is the business of the trial court to determine whether an action sounds more in contract or in tort, i.e., to determine the real character of the action, inasmuch as the action sounds both in tort and contract, by its principal purpose or object, by the principal right being asserted. L.L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 655 S.W.2d 278 (1984); Atkins Pickle v. Burrough-Uerling-Brasuell, 275 Ark. 135, 628 S.W.2d 9 (1982). Obviously, based upon Judge Ward’s determination that the federal action sounded more in tort than in contract, the federal complaint constituted the evidence of tort litigation and was offered as proof thereof by appellees in support of their motion for summary judgment in the form of an attachment to an affidavit. This proof was met with no proof to the contrary; therefore, Judge Ward was left to determine the nature of the federal complaint and the validity of the assignment therefrom.

B. Validity of the Assignment

Although the case upon which the trial court relied in determining that the assignment was invalid, Southern Farm Bureau Casualty Insurance Company v. Wright Oil Company, supra., was factually different from the instant case, in that Southern Farm Bureau considered the survival statute, the reasoning from that case, as well as our long-standing common-law prohibition against the assignment of tort cases, decided the issue for the trial court in the case at bar. As we noted in Southern Farm Bureau, at common law, the courts did not recognize either the assignment or the survival of tort claims, whether for personal injury or for property damage. Justice George Rose Smith wrote:

[T]he principal justification for the rule against assignability was the avoidance of maintenance — the fomenting of litigation between others. If causes of action for personal injuries could be assigned, then speculators could buy up such claims, perhaps at necessitous discounts, and conduct a profitable traffic in human pain and suffering. See Rice v. Stone, 1 Allen (Mass.) 566 (1861). It has also been said that the considerations urged to a jury in a personal injury case are of such a personal nature that an assignee cannot urge them with equal force. Bethlehem Fabricators v. H. D. Watts Co., 286 Mass. 556, 190 N.E. 828 (1934).

Id. at 805.

Although Southern Farm Bureau reviewed the assignability of tort litigation based upon the survival statute, Ark. Code Ann. § 16-62-101 (1987), and the assignment statute, Ark. Code Ann. § 16-65-120 (1987), was not considered in that case, we hold that Southern Farm Bureau in no way overrules the common-law prohibition of assignments in tort cases, but rather conforms with our common law. Therefore, we affirm the trial court’s finding that the assignment of the proceeds of tort litigation in this case was invalid.

II. Recusal

The rule is long established that there is a presumption of impartiality on the part of judges, see Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998), and a judge’s decision to recuse is within his or her discretion and will not be reversed absent abuse. City of Dover v. City of Russellville, 346 Ark. 279, 57 S.W.3d 171 (2001); Trimble v. State, 336 Ark. 437, 986 S.W.2d 392 (1992). The party seeking recusal must demonstrate any alleged bias. Bradford v. State, 328 Ark. 701, 947 S.W.2d 1 (1997). Unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias. Lammers v. State, 330 Ark. 324, 955 S.W.2d 489 (1997).

In this case, a telephone call was made by appellees’ prior counsel to the law clerk of the trial court. Canon 3 of the Arkansas Code of Judicial Conduct provides, in pertinent part:

(7). . . A judge shall not initiate, permit, or consider ex parte communication, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
* * *
(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.

Canon 3B(7)(a)(ii) (emphasis added). The Commentary to Canon 3 indicates that ex parte communication with the law clerk, as part of the judge’s staff, is a violation. Therefore, under Canon 3, there was a violation in this case, as there was an ex parte conversation between appellees’ counsel and the judge’s law clerk. However, Judge Ward cured this violation by calling the parties and allowing an opportunity to' respond. Further, appellant has failed to show or demonstrate any bias of the trial court as a result of the ex parte communication.

Affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Anthony Arnez NELSON v. STATE of Arkansas
    CR 02-442
    86 S.W.3d 909
    Supreme Court of Arkansas
    Opinion delivered October 24, 2002

      William R. Simpson, Jr., Public Defender; Don Thompson, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Katherine Adams, Ass’t Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

On November 13, 1999, appellant, Anthony Nelson, entered a 1995 Chrysler LeBaron automobile owned by Fiona Mitchell while it was parked in front of a convenience store in Little Rock. Ms. Mitchell was inside the store at the time appellant entered the vehicle, but Theresa Witt was sitting in the passenger’s seat of the car. After entering the vehicle, appellant began to drive the car away from the store. As he was leaving the store, appellant threatened to kill Ms. Witt if she tried to escape. However, Ms. Witt was able to escape by jumping from the vehicle. She returned to the store and reported the theft to Ms. Mitchell.

After stealing Ms. Mitchell’s vehicle, appellant proceeded to Faulkner County and robbed a Blockbuster video store. During the robbery, appellant threatened the store manager and a customer.

On the same evening, Bobby Harvill, a patrolman for the City of Conway, received a description and license plate number for Ms. Mitchell’s car. He was informed that the vehicle was stolen in Pulaski County and was being driven by a suspect involved in a robbery at a Blockbuster video store in Conway. After receiving this information, he spotted a vehicle that matched the description driving eastbound on 1-40. Patrolman Harvill attempted to stop the vehicle. When patrolman Harvill finally stopped the vehicle, he identified appellant as the driver. Appellant was then arrested. Patrolman Harvill testified that appellant was arrested for fleeing, robbery, terroristic threatening, and theft by receiving. He explained that the theft-by-receiving arrest was based on a report from Little Rock of a stolen automobile.

On November 14, 1999, Conway police notified Little Rock authorities that they had arrested appellant on various charges. The Little Rock authorities recognized that charges might be brought against appellant for the robbery and kidnapping of Ms. Witt and the theft of Ms. Mitchell’s property committed in Pulaski County, and requested that appellant be held pending such charges.

On November 15, 1999, the prosecutor in Faulkner County filed a felony information charging appellant with robbery, terroristic threatening, and fleeing. On November 22, 1999, the Little Rock Municipal Court issued arrest warrants for appellants for the crimes of aggravated robbery, kidnapping, and theft of property. On May 12, 2000, appellant was convicted of the Faulkner County charges and sentenced to a total of fifty years’ imprisonment. On that same day, appellant was arrested by Pulaski County authorities. On June 13, 2000, an information was filed in Pulaski County charging appellant with aggravated robbery, kidnapping, and theft of property. These charges stemmed from the crimes against Teresa Witt and Fiona Mitchell that occurred on November 13, 1999.

On January 17, 2001, appellant filed a motion to dismiss the charges filed in Pulaski County. In his motion, appellant argued that the State was required to bring him to trial within one year from the date of his arrest. Appellant further argued that his arrest in Faulkner County on the charge of theft by receiving on November 13, 1999, began the running of the time for speedy trial in Pulaski County. Because more than one year had passed since the date of his arrest in Faulkner County, appellant argued that the Pulaski County charges should be dismissed for violation of his right to a speedy trial. On January 22, 2001, a hearing was held on appellant’s motion to dismiss. The trial court denied the motion.

On January 24, 2001, appellant stood trial in Pulaski County Circuit Court. A jury found appellant guilty of aggravated robbery, theft of property, and kidnapping. Fie was sentenced to a total of fifty years’ imprisonment in the Arkansas Department of Correction and was given credit for the 437 days that he had already served.

Appellant appealed his case to the Arkansas Court of Appeals. On appeal, he argued that he was not timely brought to trial in Pulaski County, and that based on this speedy-trial violation his convictions should be reversed and dismissed. Specifically, appellant argued that the crimes that occurred in Faulkner County were connected to the crimes that occurred in Pulaski County. He further argued that, because the crimes were part of the same criminal episode the arrest in Faulkner County triggered the running of time for purposes of speedy-trial calculations and that, because he was not brought to trial in Pulaski County within one year from his arrest in Faulkner County, Pulaski County was barred from prosecuting appellant. The court of appeals agreed with appellant’s contention and reversed and dismissed his case. See Nelson v. State, 11 Ark. App. 156, 72 S.W.3d. 526 (2002).

On May 6, 2002, the State filed a petition for review with our court. In its petition, the State argued that the court of appeals’ decision contained errors of law and that it conflicted with published supreme court opinions. On July 6, 2002, we accepted the petition for review. When we grant review following a decision by the court of appeals, we consider the case as though it had been originally filed with this court. Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001). After reviewing appellant’s contentions, we affirm the trial court and reverse the opinion of the court of appeals.

In his only point on appeal, appellant contends that the trial court erred when it denied his motion to dismiss the charges filed against him in Pulaski County because the State failed to prosecute their case against him within twelve months from the date he was arrested. In Burmingham v. State, 346 Ark. 78, 57 S.W.3d 118 (2001), we explained:

The basic rule regarding speedy trial is that any defendant in circuit court who is not brought to trial within twelve months from the date of his arrest is entided to have the charges dismissed with an absolute bar to prosecution. When a defendant is not brought to trial within a twelve-month period, the State has the burden of showing the delay was legally justified. Once the defendant has made a prima facie showing of a violation. . . the State bears the burden of showing that there has been no violation, in that some of the time comprising the one-year period provided in the rule is to be excluded as legally justified. It is generally recognized that a defendant does not have to bring himself to trial and is not required to bang on the courthouse door in order to preserve his right to a speedy trial. The burden is on the courts and the prosecutors to see that trials are held in a timely fashion.

Burmingham, supra, (internal citations omitted); see also Rule 28.1 of the Arkansas Rules of Criminal Procedure.

Rule 28.2 of the Arkansas Rules of Criminal Procedure articulates the time when speedy trial begins to run. The Rule provides in relevant part:

The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest.

Id. (emphasis added). See also Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).

Rule 30.1 of the Rules of Criminal Procedure explains the consequences of the State’s failure to bring a criminal defendant to trial within twelve months. The Rule provides:

[A] defendant not brought to trial before the running of the time for trial, as extended by excluded periods, shall be absolutely discharged. This discharge shall constitute an absolute bar to prosecution for the offense charged and for any other offense required to be joined with that offense.

Id.

Appellant argues that the theft-by-receiving charge for which he was arrested in Faulkner County constitutes the same crime as the theft-of-property charge for which he was arrested in Pulaski County. With regard to the crime of theft by receiving, Arkansas Code Annotated § 5-36-106 (Repl. 1997), provides the following elements:

(a) A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.

Id. This statute should be contrasted with Arkansas Code Annotated § 5-36-103 (Supp. 2001) which establishes the elements of the crime of theft of property. The statute provides in relevant part:

(a) A person commits theft of property if he:
(1) Knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof;

Id.

Appellant argues that Arkansas Code Annotated § 5-36-102 (Repl. 1997) expressly provides that theft by receiving and theft of property constitutes one offense. Arkansas Code Annotated § 5-36-102 provides:

(a)(1) Conduct denominated theft in this chapter constitutes a single offense embracing the separate offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and other similar offenses.

Id. We discussed this statute in Coleman v. State, 327 Ark. 381, 938 S.W.2d 845 (1997). In that case, we explained:

[T]his provision [Ark. Code Ann. § 5-36-102] merely merged “all crimes dealing with the wrongful acquisition of property or services into a single, comprehensive offense.” Original Commentary to § 5-36-102, Vol. B, p. 219. The drafters hoped that “making theft a single offense, regardless of the manner in which it occurs, will reduce the needless wrangling at both trial and appellate levels over whether particular conduct that is obviously criminal constitutes one offense rather than another.” Id.

Coleman, supra. In Coleman, we also explained that “the aim of the statute was simply to prevent a defendant from escaping conviction of one offense by proving he is actually guilty of another.” Id. (citing the Original Commentary to § 5-36-102, Vol. B, p. 219).

The threshold question is whether the arrest on November 13, 1999, in Faulkner County was for the same offense or for an offénse based on the same conduct or arising from the same criminal episode as those offenses for which appellant was tried in Pulaski County on January 24, 2001. See Rule 28.2 of the Arkansas Rules of Criminal Procedure. This is a threshold question because if the crimes committed by appellant in Pulaski County are not related to the crimes committed in Faulkner County, then November 13, 1999, is not the date from which speedy-trial calculations begin. If the criminal acts are mutually exclusive, then the date to start the running of speedy trial for the case filed in Pulaski County is May 12, 2000, which is the date that appellant was arrested by Pulaski County authorities.

With the elements of each crime in mind, we review the facts in this case. On November 13, 1999, in Pulaski County, appellant entered a vehicle, owned by Fiona Mitchell. After entering the vehicle, appellant began to drive away in the vehicle without Ms. Mitchell’s permission. Appellant subsequently drove Ms. Mitchell’s car to Faulkner County.

Applying the elements of the crimes to the facts of the case, we conclude that the crimes committed in Pulaski County, including kidnapping, aggravated robbery, theft of property and its associated crime of theft by receiving are separate and distinct from the crimes committed in Faulkner County, namely, robbery, terroristic threatening, fleeing, and theft by receiving.

If we were to accept appellant’s contention that all crimes involving theft are statutorily merged with similar crimes involving theft, regardless of the facts surrounding the crimes, we would be creating an absurd interpretation of the statute. Specifically, the legislature did not intend to create a statue that would merge an instance of theft by receiving that was committed in one jurisdiction with an instance of theft of property committed in a second jurisdiction. Clearly, these two crimes are separate and distinct. Appellant’s proposed interpretation of Ark. Code Ann. § 5-36-102 is particularly untenable when applied to factual circumstances that establish that the theft crimes were not committed in the same criminal episode.

As the facts in the case now before us demonstrate, the crime of theft of property was completed when appellant took Ms. Mitchell’s car. Based on his actions, Pulaski County could charge appellant with theft of property. It is true that a charge of theft by receiving based on appellant’s actions in Pulaski County, filed in Pulaski County, would merge with the original offense of theft of property pursuant to Ark. Code Ann. § 5-36-102. However, this merger of the crimes committed in Pulaski County does not affect the charging options available to Faulkner County. It is clear that Faulkner County could not charge appellant with theft of property because the offense was completed before appellant entered Faulkner County. However, Faulkner County could charge appellant with theft by receiving because that crime occurred in Faulkner County when appellant, knowing that the vehicle was stolen, retained possession of the property. Appellant’s interpretation of Ark. Code Ann. § 5-36-102, requiring merger of two distinct crimes committed in two- distinct criminal episodes would create an absurd result.

Finally, appellant cites Hall v. State, 299 Ark. 209, 772 S.W.2d 317 (1989), and State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (1978), in support of his argument that the theft-by-receiving charge for which he was arrested in Faulkner County is the same offense as the theft-offproperty charge for which he was arrested in Pulaski County. We do not agree with appellant’s reading of the cases. Although the cases do stand for the proposition that theft by receiving is a continuous offense, they do not conclude that theft by receiving and theft of property are the same offenses. See Reeves, supra (holding that retaining possession of a stolen automobile is a continuous course of conduct); Hall, supra (holding that theft by receiving is a continuing offense for the purposes of establishing sufficient evidence as the underlying offense in a felony-murder case). As previously discussed, there may be factual instances when theft by receiving and theft of property are merged and therefore become the same offense. However, the facts of the case now before us do not present such a situation.

After reviewing appellant’s contentions, the applicable statutory provisions, and appellant’s actions, we hold that the theft-by-receiving charge for which appellant was arrested in Faulkner County did not link the distinct crimes committed in Faulkner County to the distinct crimes including the theft-of-property charge for which appellant was subsequently arrested in Pulaski County.

Next, we consider whether the events in Pulaski County and Faulkner County constitute the same criminal episode. To make this determination, we again review the facts surrounding the crimes.

On November 13, 1999, at a convenience store in Little Rock, appellant entered a vehicle owned by Fiona Mitchell. Teresa Witt was a passenger in Ms. Mitchell’s car when appellant entered the vehicle. Appellant threatened to kill Ms. Witt if she attempted to get out of the car. After threatening Ms. Witt, appellant drove away in Ms. Mitchell’s car with Ms. Witt. On June 13, 2000, based on these facts, Pulaski County charged appellant by criminal information with the crimes of aggravated robbery, kidnapping, and theft of property.

After kidnapping Ms. Witt and stealing Ms. Mitchell’s car, appellant then proceeded to Faulkner County where he robbed a Blockbuster video store. During this robbery he threatened several individuals, and attempted to flee from the police. On November 15, 1999, based on these facts, Faulkner County charged appellant by criminal information with the crimes of robbery, terroristic threatening, and fleeing.

We conclude the crimes appellant committed in Pulaski County were not part of the same criminal episode as the crimes appellant committed in Faulkner County. Specifically, appellant’s arrest in Pulaski County was based on the robbery and kidnapping of Ms. Witt and the theft of Ms. Mitchell’s car. By contrast, appellant’s arrest in Faulkner County was based on robbing a Blockbuster video store and fleeing from the police in a car that was reported stolen. The Faulkner County crimes were not related to appellant’s actions in Pulaski County except that the car that appellant stole in Pulaski County was still being used by appellant for his transportation when he committed the distinct Faulkner County crimes. Because the events that led to appellant’s arrest on November 13, 1999, in Faulkner County are not part of the same criminal episode as the events for which appellant was later prosecuted in Pulaski County, we hold that November 13, 1999, was not the date from which speedy trial commenced on the charges in Pulaski County. The prosecution of appellant in Pulaski County on January 24, 2001, which is less than twelve months from May 12, 2000 (the date that appellant was arrested for his crimes committed in Pulaski County), was timely. Accordingly, the trial court correctly denied appellant’s motion to dismiss.

The trial court is affirmed, and the court of appeals is reversed.

       We note that the arrest in Faulkner County was for offenses occurring in Faulkner County, namely, for terroristic threatening, robbery of a Conway Blockbuster video store, fleeing, and theft-by-receiving. The information filed in Faulkner County charged appellant with robbery, terroristic threatening, and fleeing.

       We note that in its consideration of this case, the court of appeals looked to cases involving Rule 21.1 of the Arkansas Rules of Criminal Procedure. This Rule addresses joinder and severance of offenses. See Nelson, supta. We do not find these cases persuasive on the issue of when speedy trial commences.


author: W. H. "Dub"Arnold, Chief Justice.

text:
    Leon REDING v. Dale WAGNER, Individually and in His Official Capacity as County Judge
    02-34
    86 SW.3d 386
    Supreme Court of Arkansas
    Opinion delivered October 24, 2002

      Appellant, pro se.

      Duncan & Rainwater, P.A., by: Michael Rainwater, for appellee.
   W. H. "Dub"Arnold, Chief Justice.

This appeal involves the issue of whether a county judge has the authority, under Arkansas law, to alter the course of a county road. The circuit court found that a county judge does have said authority. We agree and affirm the circuit court.

On October 28, 1999, the Boone County Court, through County Judge Dale Wagner, entered Boone County Court Order No. 99-33, finding that “a portion of Maris Loop Road, should be changed, altered and relocated to provide a much safer county road which will require much less maintenance.” The closed portion of Maris Loop Road was known as an old, narrow, and dangerous stretch of road. At trial, testimony was offered by appellant that the closed portion of Maris Loop Road was used on occasion when the ground was covered with ice or snow. The appellee offered testimony at trial proving to the trial judge’s satisfaction that the county judge closed the old portion of the Maris Loop Road and substituted a new route for Maris Loop Road to: (1) provide a safer route for traffic; and (2) avoid the expense of maintaining two roads, both of which provided for travel between the same two points. Regarding the facts, the trial judge concluded: “[T]he evidence totally supports the proposition that those persons living on Maris Loop Road and those persons using Maris Loop Road on a daily basis, including school bus drivers, and the taxpayers of Boone County, are all better served by the relocated section of Maris Loop Road.”

Appellant appeals- the trial court’s ruling and argues that the court erred in finding that a vacation of a road was a mere “change” which could be effectuated by compliance with the rules for changes to county roads. Appellant maintains that there is a specific statute providing procedures for the vacation of a county road, Ark. Code Ann. § 14-298-117 (1987), and that county officials are legally obligated to follow those specific procedures in cases in which a county road is to be vacated. Appellee contends, and the trial court found, that there was no “vacation” of a county road, rather a “change” or “altering” and that, as such, all applicable law was followed, and the county judge did have the authority to do what he did in regard to Maris Loop Road. Appellee asserts that the trial court should be affirmed. We agree.

I. Standard of Review

In bench trials, the standard of review on appeal is not whether there is any substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Shelter Mutual Insurance Co. v. Kennedy, 01-329, (December 6, 2001); Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). With respect to a question of statutory interpretation, we review the matter de novo on appeal, as it is for this Court to decide what a statute means. Wal-Mart Stores, Inc. v. The P.O. Mkt., Inc., 347 Ark. 651, 66 S.W.3d 620 (2002); Fewell v. Pickens, 346 Ark. 246, 57 S.W.3d 144 (2001); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999).

II. Applicable Law

The trial judge found that Ark. Code Ann. § 14-298-120 (1987) was controlling and was neither in conflict with Amendment 55 to the Arkansas Constitution, relied upon by appellee, nor § 14-298-117, relied upon by appellant. The trial court found that § 14-298-120 gave the county judge the authority to change the route of Maris Loop Road, even if Amendment 55 had never been adopted, and that § 14-298-117 simply did not apply in this case. We agree.

Section 3 of Amendment 55 to the Arkansas Constitution, entitled “Power of county judge”states:

The County Judge, in addition to other powers and duties provided for by the Constitution and by law, shall preside over the Quorum Court without a vote but with the power of veto; authorize and approve disbursement of appropriated county funds; operate the system of county roads; administer ordinances enacted by the Quorum Court; have custody of county property; hire county employees, except .those persons employed by other elected officials of the county. (Emphasis added.)

Arkansas Code Annotated § 14-298-120, entitled “Opening, changing, and classifying roads, etc. by order of county court,” which the trial judge found to be the controlling statute in this case, states, in pertinent part:

(a)(1) The county courts shall have power to:

(A) Open new roads;
(B) Make changes in old roads as they deem necessary and proper; and
(C) Classify the roads and bridges in their respective counties for the purposes of this section and 27-67-212
(2) When the change shall be made or any new road opened, the road shall be located on section lines as nearly as may be, taking into consideration the conveniences of the public travel, contour of the country, etc. First class roads hereafter established or opened shall not be less than fifty feet (50’) wide.
(3) An appropriate order of the county court shall be made and entered of record therefor.
* * *
(l) This section and 27-67-212 shall be cumulative to all existing laws and parts of laws, and shall not be construed as to repeal any existing laws, or part of laws, unless they are in conflict herewith, and then only to the extent of the conflict.

[Emphasis added.]

Finally, Ark. Code Ann. § 14-298-117, entitled “Vacation of road,” and relied upon by appellant, states:

(a) When any county road, or any part of any county road, shall be considered useless, any ten (10) citizens residing in that portion of the county may make application by petition agreeable to 14-298-124 to the county court to vacate the road, setting forth in the petition the reason why the road ought to be vacated, which petition shall be publicly read at a regular session of the county court, with the proof of notice and publication required by this chapter. No further proceedings shall be had thereon until the next regular session of the court.
(b) If no objections are made and filed, the county court may declare the road vacated, or any part thereof that it may deem necessary.
(c) If objection is made in writing, the county court shall appoint three (3) viewers to view the road who shall proceed, after taking the oath or affirmation required by this chapter, to view the road as aforesaid and make written report of their opinion thereon, and their reason for the opinion, to the county court. If the viewers shall report in favor of vacating the road, or any part thereof, the court, if it deems the report reasonable and just, may declare the road, or any part thereof, vacated, agreeable to the report of the viewers.
(d) The costs thereof and expenses incident thereto shall be paid by the petitioners unless the county court shall order the costs and expenses paid out of the county treasury.

III. Merits

The road in question was clearly not “vacated” in this case. The county judge’s order makes clear that it was “changed,” thereby invoking § 14-298-120, not § 14-298-117. The county judge’s order regarding Maris Loop Road specifically states:

That a portion of Maris Loop Road that is west of the Fowler Dairy Road should be changed, altered and relocated to provide a much safer county road which will require much less maintenance. That there are no residences on the portion of the road that is being changed, altered and relocated. That all property owners adjoining the portion of the Maris Loop [R]oad that is being changed and altered have agreed with the relocation. (Emphasis added.)

The order goes on to state the specific plat to which the road is to be relocated. From a plain reading of the county judge’s order, it is evident that the road was not “vacated” as contemplated by Ark. Code Ann. § 14-298-117; as such, that section of the Code simply does not apply to this situation. Certainly, under Ark. Code Ann. § 14-298-120(a)(l)(B), the county judge had the authority to “make changes in old roads,” which is what Judge Wagner did in this situation. This was the finding of the trial court, and we affirm that decision.

A county judge’s executive authority, under Amendment 55, Section 3, and under Ark. Code Ann. § 14-298-120, to make changes in the routes of old county roads is not negated by Ark. Code Ann. § 14-298-117. Section 14-298-117 is merely a procedure whereby any ten citizens may make application by petition asking the county judge to vacate a road, and it in no way conflicts with Ark. Code Ann. § 14-298-120.

In short, county judges in Arkansas are given the executive power to make discretionary decisions regarding the operation of the system of county roads. We, therefore, hold that the trial court did not err when finding that there was no evidence of abuse or misuse of the county judge’s discretion in this case wherein the county judge ordered that the road in question be “changed, altered and relocated.” We affirm.

Affirmed.


author: Tom Glaze, Justice. Tom Glaze, Justice,

text:
    M.M. v. STATE of Arkansas
    02-107
    88 S.W.3d 406
    Supreme Court of Arkansas
    Opinion delivered October 24, 2002

      Jeff Rosenzweig, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

This appeal presents several challenges to Arkansas’ rape shield statute. M.M., a juvenile, was charged in Lonoke County Juvenile Court with the rape of J.H. and sexual misconduct with A.H. The rape charges were filed pursuant to Ark. Code Ann. § 5-14-103(a)(4) (Repl. 1997), which provides that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. The victim, J.H., was born in October of 1991, and was less than fourteen during the time period in which the rape was alleged to have taken place, between May 1999 and October 2000. The trial court subsequently dismissed M.M.’s charge pertaining to A.H., but adjudicated M.M. a delinquent and committed him to the Department of Youth Services based on the charge involving J.H.

Prior to the rape trial, M.M. moved to present testimony bearing on J.H.’s prior sexual conduct. Particularly, he sought to introduce evidence that would show (1) J.H.’s mother had told M.M. she previously caught J.H. with A.H. engaged in sexual activity, and (2) M.M. would testify that he had previously discovered J.H. and A.H. together in a sexual position. M.M. also contended that Arkansas’ rape shield statute, Ark. Code Ann. § 16-42-101 (Repl. 1999), is unconstitutional, and further asserted that, even if the statute is constitutional, the statute should not be applicable to juvenile proceedings. The trial court rejected M.M.’s-arguments, and also held that the evidence M.M. sought to introduce was irrelevant and therefore inadmissible.

On appeal, M.M. raises five points for reversal. We first address his fourth point, wherein he argues that the rape shield statute is unconstitutional as a violation of the separation-of-powers doctrine. He maintains that the statute represents “an incursion into the right of the supreme court to prescribe rules of procedure under the doctrine enunciated in State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990), and Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994).” In Sypult, supra, this court held that it would defer to the General Assembly when conflicts arise, only to the extent that the conflicting court rule’s primary purpose -and effectiveness are not compromised; otherwise, our rules remain supreme. Sypult, 304 Ark. at 7.

M.M. acknowledges that this court addressed this issue in Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000), wherein the court clearly held that it did not view the rape shield statute as having supplanted this court’s rule-making power and ability to control the courts. We need not dwell on this point any further, because our decision in this case turns largely on M.M.’s other contentions.

Among these other arguments is M.M.’s assertion that the rape shield statute is inapplicable in juvenile proceedings. While we agree with M.M. on this point, we do not agree that this argument warrants reversal. On several occasions, this court has noted the distinction between a criminal prosecution and a juvenile delinquency proceeding. See Golden v. State, 341 Ark. 656, 21 S.W.3d 801 (2000); Hunter v. State, 341 Ark. 665, 19 S.W.3d 607 (2000); K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998). Further, the Arkansas juvenile code requires the application of the Arkansas Rules of Evidence and the Arkansas Rules of Criminal Procedure. See Ark. Code Ann. § 9-27-325(e) & (f) (Repl. 2002).

In KM. v. State, this court noted that Arkansas has “two distinct systems that are governed by two separate acts: (1) the Arkansas Criminal Code, Ark. Code Ann. §§ 5-1-101 to 5-77-301 (Repl. 1997), which governs proceedings in the circuit court, and (2) the Arkansas juvenile code, Ark. Code Ann. §§ 9-27-101 to 9-33-206 (Repl. 1998), which governs proceedings in the juvenile court.” In K.M., this court held that the insanity-defense statute, Ark. Code Ann. § 5-2-312 (Repl. 1997), was contained in the criminal code and had no corresponding provision in the juvenile code; therefore, the insanity defense was not available in juvenile adjudications. K.M., 335 Ark. at 94. See also Hunter, supra (holding Ark. Code Ann. § 16-97-103 (Supp. 1999), the victim-impact evidence statute, is inapplicable in juvenile proceedings because it is neither a rule of evidence nor a rule of criminal procedure).

Moreover, the rape shield statute itself sets out in clear words that it is to be applied “[i]n any criminal prosecution” involving rape or other sexual offenses. See § 16-42-101 (b). Because a juvenile-delinquency proceeding is not a criminal prosecution, we believe that there is merit to M.M.’s argument that the rape shield statute is inapplicable to this proceeding.

However, our inquiry does not end simply because we hold the rape shield statute inapplicable to M.M.’s juvenile delinquency charge, since the trial court otherwise correctly found that the prior sexual history of the victim, J.H., was entirely irrelevant to the crime with which M.M. was charged. In this connection, our court must decide whether the trial court in this juvenile proceeding abused its discretion in excluding M.M.’s proffered testimony on the basis of that testimony’s irrelevance under the Arkansas Rules of Evidence.

Relevant evidence is 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. Ark. R. Evid. 401., M.M. argues that evidence that J.H. had engaged in sexual practices with no connection to M.M. made more probable M.M.’s denial of any sexual involvement with J.H. Further, he asserts, because he was denied the right to inquire of any of the other witnesses concerning J.H.’s sexual history, he was deprived of the right to demonstrate that any admissions by any of those witnesses would enhance M.M.’s credibility on this score.

However, M.M. was charged with rape under § 5-14-103(a)(4), which provides that one commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. That same subsection provides that it is an affirmative defense to prosecution under § 5-14-103(a)(4) if the actor was not more than two years older than the victim. This court has held that a person who has sexual intercourse or deviate sexual activity with one less than fourteen years of age is guilty of the crime, regardless of how old he or she thought the victim was, and regardless of whether there was consent. Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994). When consent is not an issue, whether the victim had sexual relations with another person is “entirely collateral.” Evans v. State, 317 Ark. 532, 878 S.W.2d 750 (1994). In Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002), this court wrote as follows:

It is difficult to understand what relevance [the victim’s] other sexual encounters have to do with whether Ridling was having sex with her before her fourteenth birthday. Unfortunately, the fact that she was having sex with one older man does not prevent her from having sex with a second older man at the same time. Evidence that she was having sex with [a man other than Ridling], therefore, could not have been relevant to the jury’s determination of whether or not she was having sex with Ridling before reaching the age of fourteen. . . . Because [the victim’s] relationship with [the other man] was irrelevant to the question of [the victim’s] age when she began having sexual intercourse with Ridling, the trial court did not abuse its discretion in excluding it.

Ridling, 348 Ark. at 226.

Ridling is squarely on point with the present case. As in Ridling, the question to be decided in this case was whether or not M.M. engaged in sexual intercourse or deviate sexual activity with another person who was less than fourteen years of age. The testimony M.M. sought to introduce was evidence of the victim’s sexual history, but because the victim was under the age of fourteen, the child’s sexual past was completely irrelevant to the question of whether or not M.M. engaged in sexual activity with J.H. In short, the purpose of Ark. R. Evid. 403 is to exclude irrelevant evidence when such proof is prejudicial, confusing, or misleading. Certainly, when evidence of a victim’s past sexual conduct has nothing to do with the defendant’s guilt, that evidence can be prejudicial, confusing, and misleading. Therefore, the trial court clearly did not abuse its discretion in determining that the testimony was irrelevant.

In M.M.’s final argument, he claims that, after the trial court adjudicated him a delinquent, the court erred in refusing to conduct a risk assessment under Ark. Code Ann. § 9-27-330 (Repl. 2002). That statute provides, in pertinent part, as follows:

(a) If a juvenile is found to be delinquent, the court may enter an order making any of the following dispositions based upon the best interest of the juvenile:
(1) (A) Transfer legal custody of the juvenile to any licensed agency responsible for the care of delinquent juveniles or to a relative or other individual;
(B)(i) Commit the juvenile to a youth services center using the risk assessment system for Arkansas juvenile offenders distributed and administered by the Administrative Office of the Courts.
(B)(ii) The risk assessment may be modified by the Juvenile Committee of the Arkansas Judicial Council with the Division of Youth Services.
(iii) In an order of commitment, the court may recommend that a juvenile be placed in a community-based program instead of a youth services center and shall make specific findings in support of such a placement in the order.
(iv) Upon receipt of an order of commitment with recommendations for placement, the Division of Youth Services of the Department of Human Services shall consider the recommendations of the committing court in placing a youth in a youth services facility or a community-based program.

(Emphasis added.)

Delivered November 14, 2002

M.M. argued that § 9-27-330 required the court to use the risk assessment system if it intended to sentence him to the Division of Youth Services (“DYS”). On appeal, M.M. contends that, “upon reversal,” this court should require the trial court to conduct the risk assessment, and not defer it to Youth Services.

However, we conclude that this issue is moot. M.M. was born on June 2, 1984, and is therefore over the age of eighteen as of the date of this opinion. Under Ark. Code Ann. § 9-27-331(a)(1), “[a] commitment to the Division of Youth Services of the Department of Human Services is for an indeterminate period not to exceed the eighteenth birthday of a juvenile, except as otherwise provided by law.” (Emphasis added.) The record does not reflect that M.M. was adjudicated delinquent under the Extended Juvenile Jurisdiction Act, Ark. Code Ann. § 9-27-501 et seq. (Repl. 2002), under which his disposition could have been extended. See § 9-27-331(b)(l)(A) (stating that § 9-27-331(a) does not apply to extended juvenile jurisdiction offenders). Because M.M. is now past his eighteenth birthday, any issue regarding his commitment to DYS is moot.

Affirmed.

SUPPLEMENTAL DISSENTING OPINION ON DENIAL OF PETITION FOR REHEARING

02-107

88 S.W.3d 406

Supreme Court of Arkansas

Jeff Rosenzweig, for appellant.

Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.

Tom Glaze, Justice,

dissenting. In his petition for rehearing, ce, cites Ark. Code Ann. § 9-28-206 (Repl. 2002), which provides that a juvenile may be committed to the Division of Youth Services “for an indeterminate period not to exceed the twenty-first birthday of the juvenile.” In our opinion, the court relied on Ark. Code Ann. § 9-27-331(a)(1), which provides “[A] commitment to [DYS] ... is for an indeterminate period not to exceed the eighteenth birthday of a juvenile except as otherwise provided by law.” Based on § 9-27-331(a)(l), we concluded that, because M.M. is now past his eighteenth birthday, any issue regarding his commitment to DYS is moot. Relying on the language in § 9-28-206, M.M. argues that he presently remains in custody, therefore, the issue of his commitment is not moot.

It appears the foregoing statutes may be in conflict, and § 9-27-331 (a)(1) may be repealed by implication, since § 9-28-206 is the later enactment. However, as the State points out, even if § 9-28-206 is the controlling law, M.M. has shown no prejudice resulting from the court’s disposition of M.M.’s case because of the seriousness of the offense of rape, a Class Y felony, and the trial judge’s comments that he was not inclined to recommend M.M. be placed in a community-based program.

While this court need not address whether the above statutes are in conflict or which one may be controlling, we do uggest to the General Assembly that it may wish to clarify this apparent conflict so as to resolve the issue. We otherwise conclude that M.M.’s petition for rehearing is denied.

       J.H. and A.H. are unrelated. Appellant M.M. and the victims are referenced by their initials following this court’s May 2, 2002, decision to grant M.M.’s motion for anonymity in the appellate proceedings.

       We note that the General Assembly enacted Act 987 of 2001, codified at Ark. Code Ann. § 9-27-325(k) (Repl.2002), which provides that “In delinquency proceedings, juveniles are entided to all defenses available to defendants in circuit courts.”

       Although M.M. suggests that this court should conduct a de novo review, rather than apply our abuse-of-discretion review to a trial court’s evidentiary ruling, we decline to do so. This court has consistendy held that, in matters relating to the admission of evidence under Ark. R. Evid. 401, a trial court’s ruling is entitled to great weight and will not be reversed absent an abuse of discretion. See Cook v. State, 345 Ark. 264, 45 S.W.3d 820 (2001); Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000).

       Ark. Code Ann. § 5-14-103 was amended in 2001. However, with respect to the rape of a person under the age of fourteen, that part of the statute did not change; in the amended statute, the paragraph structure is different, and the affirmative defense applies if the actor was not more than three years older than the victim. Because M. M. was charged in November of 2000, these amendments are not applicable to this case.

       M.M. raises an additional point regarding the trial court’s exclusion of evidence pertaining to the victim’s prior sexual history, arguing that the trial court erred substantively and procedurally in its application of the rape shield statute to this case. However, because we have concluded that the rape shield statute is inapplicable in juvenile proceedings, we do not address this point.


author: Donald L. Corbin, Justice.

text:
    PHI KAPPA TAU HOUSING CORPORATION, a/k/a PKT Housing; Rick Marcum, Individually and as President of Phi Kappa Tau Housing Corporation; and Anthony Capo, Individually and as Vice-President of Phi Kappa Tau Housing Corporation v. Matt WENGERT, Paul Wengert, and Angie Wengert
    02-231
    86 S.W.3d 856
    Supreme Court of Arkansas
    Opinion delivered October 24, 2002

      The Evans Law Firm, P.A., by: Marshall Dale Evans, for appellants.

      Conner & Winters, P.C., by: John R. Elrod and Vicki Bronson, for appellees.
   Donald L. Corbin, Justice.

This case arose from a landlord-tenant dispute after Appellant Phi Kappa Tau Housing Corporation (PKT) leased a house for its fraternity from Appellees Paul Wengert, Angie Wengert, and Matt Wengert. At the time of the lease, Appellant Rick Marcum was the fraternity’s president, and Appellant Anthony Capo was its vice-president. PKT filed suit in the Washington County Circuit Court against Appellees for replevin, claiming that they had converted the fraternity’s personal property. PKT also sought the return of the security deposit. Appellees filed a counterclaim against PKT, alleging that it had breached the lease agreement, and filed third-party complaints against Marcum and Capo, individually. The jury found in favor of PKT on its replevin claim and awarded it $8,500.00 for conversion of the property and $4,000.00 for its security deposit. The jury also found in favor of Marcum and Capo on the third-party complaints against them, determining that they were not liable for any of the alleged damages. Finally, on Appellees’ counterclaim against PKT, the jury found that the fraternity was liable to the Wengerts for $2,000.00 in damages.

At the conclusion of the trial, Appellants moved for an award of attorney’s fees and costs, pursuant to the lease agreement and Ark. Code Ann. § 16-22-308 (Repl. 1999). The trial court denied the motion on the ground that neither Appellants nor Appellees were the prevailing parties. The trial court’s ruling was based on the fact that although both sides had won their cases to a certain extent, neither had recovered anywhere near the amounts sought. The Arkansas Court of Appeals affirmed the denial of attorney’s fees to PKT because its recovery was based on the tort of conversion, and attorney’s fees are not recoverable in tort actions. See Marcum v. Wengert, 70 Ark. App. 477, 20 S.W.3d 430 (2000) (.Marcum I). The court of appeals also held that the trial court did not abuse its discretion in denying attorney’s fees to Marcum and Capo for prevailing on the third-party complaints.

Thereafter, we granted review of the court of appeals’ decision, and we reversed. See Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001) (Marcum II). We remanded the matter to the trial court to consider (1) awarding reasonable attorney’s fees to all three Appellants under section 16-22-308 and Ark. R. Civ. P. 54, and (2) awarding reasonable attorney’s fees and costs to PKT under its lease with Appellees. Upon remand, the trial court awarded PKT $1,750.00 in attorney’s fees and $1,623.19 in costs. The trial court also awarded Marcum and Capo a total of $1,750.00 in attorney’s fees. Appellants again seek reversal of the trial court’s judgment. Because this is the second appeal of this matter in this court, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (7). We affirm the trial court’s judgment, but we modify the award of costs.

I. Award of Costs to PKT

For their first point for reversal, Appellants argue that the trial court erred in refusing to grant PKT all costs incurred in the litigation, as required by its lease agreement with the Wengerts. During the hearing below, Appellants presented an itemized statement of their costs, totaling $2,907.19. The lion’s share ($2,578.00) of their costs was for deposing each of the Wengerts. The trial court found that those deposition costs were excessive, and that one-half of the deposition costs, $1,289.00, is somewhat more reasonable. Based on this finding, the trial court reduced the deposition costs by half, and awarded total costs of $1,623.19. Appellants argue that the trial court’s ruling is contrary to the plain language of the lease agreement. We agree.

As set out in this court’s opinion in Marcum II, the lease agreement entered into between PKT and the Wengerts provided in part:

16. Attorney’s Fees: In the case suit should be brought for recovery of the premises, or for any sum due hereunder, or because of any act which may arise out of the possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action, including a reasonable attorney’s fee.

344 Ark. at 165, 40 S.W.3d at 237-38. In construing this provision, this court held that the language was very broad and that it “required a mandatory award of reasonable attorney’s fees and costs to that party.” Id.

The trial court interpreted this lease provision as requiring an award of reasonable costs and reasonable attorney’s fees. We disagree with this interpretation, because the word “reasonable” is only used to modify the term “attorney’s fee.” It is not used to modify the term “costs.” To the contrary, a plain reading of the provision demonstrates that the amount of costs recoverable by the prevailing party are “all costs incurred in connection with such action[.]” (Emphasis added.) As this court stated in Marcum II, the words of a contract are to be taken and understood in their plain and ordinary meaning. See also First Nat’l Bank v. Griffin, 310 Ark 164, 832 S.W.2d 816 (1992), cert. denied, 507 U.S. 919 (1993). The plain language of the lease provides for an award of “all costs incurred in connection with” any action for recovery of the premises, or for any sum due under the lease, or because of any act arising out of the possession of the premises. Had the parties wished to limit the recovery of costs to only those that are deemed reasonable, they could have done so by substituting the word “reasonable” for the word “all.” Similarly, had the parties meant that only legal costs would be recoverable, as Appellees assert, they could have easily inserted the word “legal” between “all” and “costs.” But that is not what the contract provides, and we will not read into it any such qualifying language.

Moreover, we are not persuaded by Appellees’ reliance on Ark. R. Civ. P. 54(d)(2), to support their contention that deposition costs are not recoverable. In the first place, the trial court obviously found that deposition costs were recoverable under the lease, as he awarded PKT half of the total deposition costs. That finding is not clearly erroneous given the broad language of the lease agreement. In the second place, Rule 54(d) and its provision of recoverable costs has no application to this issue because the parties have agreed, independently from that rule, that “all costs incurred in connection with” the litigation are recoverable. See Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994). Accordingly, we reject Appellees’ argument that deposition costs are not recoverable under the lease.

The only remaining question is whether the costs requested by Appellants were incurred in connection with the litigation under the lease. Appellants urge that the proof was undisputed that the remainder of the costs sought by them were incurred in connection with the litigation. Appellees do not dispute this assertion. Moreover, the trial court never questioned that all the costs sought by Appellants were incurred in connection with the litigation. The trial court merely questioned the excessive costs of the depositions of the three Appellees. Accordingly, because there is no disputed issue of fact as to whether the requested costs were incurred in connection with the litigation, there is no need to remand this inquiry to the trial court. We thus modify the judgment to reflect that PKT is awarded the total amount of the costs incurred in connection with the litigation, which is $2,907.19.

II. Reasonable Attorney’s Fees

For their second point, Appellants argue that the trial court abused its discretion in awarding only $3,500.00 in attorney’s fees even though the evidence showed that Appellants’ attorney had worked in excess of 348 hours on the case, for a total fee of $51,525.50. Appellants argue that the award is not reasonable, under the language of the lease or under section 16-22-308. We disagree.

This court has often observed that there is no fixed formula in determining reasonable attorney’s fees. See, e.g., Newcourt Fin., Inc. v. Canal Ins. Co., 341 Ark. 452, 17 S.W.3d 83 (2000) (per curiam); Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). However, a court should be guided in that determination by the following long-recognized factors: (1) the experience and ability of the attorney; (2) the time and labor required to perform the service properly; (3) the amount in controversy and the result obtained in the case; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged for similar services in the local area; (6) whether the fee is fixed or contingent; (7) the time limitations imposed upon the client in the circumstances; and (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney. Id. Due to the trial judge’s intimate acquaintance with the record and the quality of service rendered, we recognize the superior perspective of the trial judge in assessing the applicable factors. Id. Accordingly, the amount of the award will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Marcum II, 344 Ark. 153, 40 S.W.3d 230; Boatmen’s Trust Co. v. Buchbinder, 343 Ark. 1, 32 S.W.3d 466 (2000).

During the hearing below, the trial court received into evidence an affidavit submitted by Appellants’ attorney, Marshall Dale Evans, reflecting that the total billing for legal time was $51,525.50. Attached to the affidavit was an itemized statement showing how many hours were spent on particular services, such as reviewing documents, consulting with the client, deposing witnesses, etc. The trial court also heard testimony from Evans, Appellees’ attorney John R. Elrod, and two local attorneys, Lamar Pettus and Jim Rose. Evans testified that he initially agreed to take the case on a contingency. He stated that he told his clients that if the Wengerts filed any counterclaims, he would be working on an hourly basis. Evans explained that “the employment arrangement was assessed as one that could have been a contingency case initially with the proviso that if it develops into a counterclaim that has to be dealt with at that point and it becomes hourly on that portion of it.” During cross-examination, Evans explained further:

The replevin suit only was considered to be a — would have been considered to be a contingency case if there were no counterclaims. Yes, that was the agreement that was explained to the client but it also was, as frequently we do say, if a counterclaim is filed then that will be on an hourly rate.

Evans defended the number of hours spent on the case as being due to the protracted nature of the suit once the counterclaims and third-party complaints were filed.

Jim Rose testified that from his review of the case file and Evans’s itemization of time, he felt that the number of hours spent on the case was appropriate in light of the counterclaims filed by the Wengerts. Rose also stated that the fee sought by Evans was reasonable.

In contrast, Lamar Pettus testified that from his review of the case file and the itemization, he believed that the number of hours spent in preparation for trial was excessive. Pettus stated that the hourly rate of $125.00 to $150.00 was reasonable, but that the overall fee was high. Pettus explained that “had I anticipated the counterclaims and the difficulty or possible difficulty of the case I would have put this case in the range of somewhere between ten thousand dollars and thirty-five thousand[.]” When asked whether he could determine from the itemized statement and the case file the amount of money spent defending Marcum and Capo on the counterclaims, Pettus stated that he estimated about $18,000.00 was spent defending the individuals. The trial court then interjected a question as to how Pettus arrived at that figure from the itemization offered by Evans, given that most of the entries do not detail who benefitted from any particular legal service. Pettus explained how he arrived at the figure, but he cautioned that his conclusion was a guess at best.

Following the hearing, the trial court issued a letter to the parties detailing his decision. In that letter, the trial court determined that a reasonable amount of attorney’s fees would be $3,500.00, with one-half going to PKT and the other half going to Marcum and Capo. Applying the factors set out above, the trial court found that the case was relatively simple and straightforward and did not present any novel or difficult issues; that the attorneys involved are experienced and have enjoyed considerable successes in the past; that representation of Appellants did not preclude the Evans Law Firm from accepting other employment during the time; that the hourly rate of $125.00 to $150.00 was not excessive, but was at the high end of what was reasonable in the area; that an excessive amount of time was spent on trial preparation, reviewing records, and taking depositions; and that Appellants enjoyed limited success in the litigation, as the net award of $10,500.00 was less than ten percent of the amount sought. Additionally, the trial court concluded that the appropriate fee in this case should be based on a percentage (one-third) of the net award. The court based this conclusion on its finding that “the representation, in its entirety, was on a contingent fee basisf.]”

It is this last finding that Appellants take great issue with on appeal. They contend that the trial court’s finding is in direct contrast to the evidence that was admitted during the hearing. Particularly, they point to Evans’s testimony that although the initial replevin suit was undertaken on a contingency-fee basis, it was made clear to Appellants up front that if any counterclaims were filed, the representation in defense of those counterclaims would be on an hourly basis. Appellants’ argument on this point is unpersuasive when the trial court’s order is read in its entirety and viewed in light of the judge’s comments during the hearing.

As set out above, Evans testified that the replevin case was initially taken on a contingency-fee basis, “with the proviso that if it develops into a counterclaim that has to be dealt with at that point and it becomes hourly on that portion of it.” (Emphasis added.) Thus, the replevin suit and the counterclaims were supposed to be billed separately, using different methods. During Pettus’s testimony, the trial judge indicated that he could not tell from the itemized billing statement which services were performed on the replevin claim and which were performed in defense of the counterclaims and third-party complaints. Pettus testified that he estimated that approximately $18,000.00 was spent on those defenses. However, Pettus stated that his estimate was really only a guess. The trial court’s letter order reflects the difficulty in separating the services:

The prosecution of the original claim against the Wengerts and the defense of the third party claim are hopelessly intertwined and the plaintiff attorney’s records have not segregated the legal work or costs associated with the different actions. Therefore, this court agrees with the testimony at the hearing, such that it is virtually impossible to accurately allocate the charges according to whether the time spent by the attorney, or costs incurred otherwise, were due to the prosecution or defense in this action.

The trial court elected to award a fee on a contingency basis because it was not clear from either the testimony or the documentary evidence how much of the 348 hours spent on the case was dedicated to the prosecution of the replevin case or the defense of the counterclaims and third-party complaints.

We cannot say based on the record before us that the trial court abused its discretion. We agree with the trial court that the itemized statement does not accurately separate the services. Indeed, we found only five entries, on March 28, 1996, April 11, 1996, March 25, 1998, April 17, 1998, and April 30, 1998, that definitively reflect services performed in defense of the counterclaim and third-party complaints. Those five entries total only 25.25 hours. Accordingly, Appellants have failed to demonstrate that the trial court abused its discretion in awarding attorney’s fees in the amount of $3,500.00. In setting the amount, the trial court applied the eight factors previously set out by this court as pertinent to a determination of reasonable attorney’s fees. Moreover, the trial court provided sound reasons, based on the evidence provided at the hearing, for ultimately basing the award on a percentage of the judgment. We thus affirm the trial court’s determination of attorney’s fees.

Affirmed as modified.

       Appellees did not cross-appeal that part of the trial court’s judgment awarding PKT one-half of its deposition costs under the lease agreement.