text:
    Alvalu SIDES v. Linda BEENE, Margie Melhorne, Trecora Hagy, Jim Hagy, Mollie Hagy, Melody Hagy, Beth Welshans, Bradley Welshans, Catherine Welshans Cantor, Cindy Welshans, Vanessa Welshans, & Wilson Welshans
    96-1020
    938 S.W.2d 840
    Supreme Court of Arkansas
    Opinion delivered February 24, 1997

      Stephen K. Wood, P.A., by: Stephen K. Wood, for appellant.

      Sloan, Rubens & Peeples, by: Kent J. Rubens and Fletcher Long, Jr., for appellees.
   Annabelle Clinton Imber, Justice.

This case involves the construction of a deed, and whether the appellant, an adopted child, was properly excluded from the remainder interest created by the deed. The trial court held that the language in the deed conveying property to the grantee for life, and then to the legal heirs of her body who survived her, created an estate tail, and further held that title to the property reverted to the grantors’ estate. We find no error and affirm.

On February 24, 1930, T.P. Johnson and Arkie Johnson executed a deed conveying their interest in 160 acres of land located in Crittenden County to their daughter, Lucy Faye Thompson. The granting clause of this deed provided as follows:

I do hereby grant, bargain, sell and convey unto the said Lucy Faye Thompson and the legal heirs of her body, and in the event the said Lucy Faye Thompson should die without leaving any legal heirs of her body surviving her, then in that case the hereinafter described property shall revert to the said T.P. Johnson the grantor herein. . . .

T.P. and Arkie Johnson also had two other children, Hazel Welshans and Bernard Paul. Lucy Faye died on October 29, 1993, and was survived by her adopted daughter, the appellant, Alvalu Sides. Lucy Faye did not have any natural children and adopted Sides in March of 1956.

The appellees are all descendants of Hazel Welshans and Bernard Paul. Hazel Welshans had six surviving grandchildren: Beth Welshans, Bradley Welshans, Wilson Welshans, Vanessa Welshans, Cindy Welshans, and Catherine Welshans Cantor. Bernard Paul was survived by three children: Linda Beene, Margie Melhorne, and Tecora Hagy; and three grandchildren: Jim Hagy, Mollie Hagy, and Melody Hagy.

On February 3, 1994, Linda Beene and others filed an action in Crittenden County Circuit Court to quiet tide in the 160 acres. The case was removed to chancery court, where Sides brought a cross-claim and moved for summary judgment. She argued that she owned the land in fee simple as a bodily heir of Lucy Faye Thompson. The trial court found that the deed “created an estate tail in Lucy Faye Thompson with possibility of reverter to the estate of T.P. Johnson and Arkie Johnson in the event Lucy Faye Thompson was not survived by legal heirs of her body.” The trial court further concluded that title to the property did in fact revert to the grantors’ estate, and the property was divided accordingly. Sides received a one-third interest in the land under the trial court’s pro rata distribution.

Sides now brings the present appeal. Her sole point on appeal is that the trial court erroneously determined that she was not an “heir of the body” in construing the deed.

In interpreting a deed, this court gives primary consideration to the intent of the grantor. Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995); Bennett v. Henderson, 281 Ark. 222, 663 S.W.2d 180 (1984). The intent of the grantor is gathered solely from the language of the deed unless the language of the instrument is ambiguous, uncertain, or doubtful. Id. In the present case, the critical language is the meaning of the phrase “unto the said Lucy Faye Thompson and the legal heirs of her body.”

Sides relies on provisions contained in the Revised Uniform Adoption Act, Ark. Code Ann. § 9-9-201 to -224, to argue that she is solely entitled to the land in question. Specifically, she cites Ark. Code Ann. § 9-9-215 (a) (2) (Repl. 1995), which provides that a final decree of adoption creates a parent-child relationship “as if the adopted individual were a legitimate blood descendant. .. for all purposes including inheritance and applicability of statutes, documents, and instruments, whether executed before or after the adoption is decreed, which do not expressly exclude an adopted individual from their operation or effect.”

The Act clearly treats adopted persons as blood descendants for “all purposes.” However, the Act allows documents or instruments to expressly exclude an adopted individual from their operation. In the present case, the relevant inquiry is whether the deed’s granting language, “unto the said Lucy Faye Thompson and the legal heirs of her body,” expressly excluded adopted individuals from taking under the deed.

At common law, a deed which granted real property and utilized granting language such as “to A and her bodily heirs” or similar language had a technical definition. More precisely, such language created a fee tail. See Spence v. Spence, 271 Ark. 697, 610 S.W.2d 264 (1981); Weatherly v. Purcell, 217 Ark. 908, 234 S.W.2d 32 (1950). Thus, a conveyance to “A and her bodily heirs” would create a fife estate in A, then subsequent fife estates in the surviving lineal descendants of A. Traditionally, this court has excluded adopted individuals from the class of “bodily heirs” in construing a fee tail.

Illustrative of this principle is Davis v. Davis, 219 Ark. 623, 243 S.W.2d 739 (1951), where a deed conveyed real property to the grantor’s children for their lives and “then to their bodily heirs.” The grantor died intestate, leaving a child who eventually died without natural children of his own, but was survived by an adopted son.

The Davis court concluded that the adopted son was not a “bodily heir” of his father. The court was not swayed by Ark. Stat. Ann. § 56-109 (1949) (repealed 1977), which provided that a legally adopted person shall not be barred from inheriting property from his parents or other kin. The court distinguished this statute, stating that “the question is not one of inheritance.” The court explained:

Terms such as bodily heirs, issue, etc., have long been defined in the law, and the definition does not include adopted children. (Citation omitted.) A foster child, being a stranger to the blood, is the antithesis of an heir of the body.

Id. See also Cox. v. Whitten, 288 Ark. 318, 704 S.W.2d 628 (1986) (will executed in 1951 that left life estate to siblings and remainder to their “children” did not give adopted adult a remainder interest); Bilsky v. Bilsky, 248 Ark. 1060, 455 S.W.2d 901 (1970) (in interpreting “issue” used in a will executed in 1955, court observed that “[t]erms such as bodily heirs, issue, etc. have long been defined in the law, and the definition does not include adopted children”). Thus, the Davis court concluded that the adoption-inheritance laws were not intended to modify the established meaning of terms used in deeds.

The holding in Davis was certainly consistent with the general common law rule that excluded adopted individuals from taking as “heirs of the body.” See Restatement (First) of Property § 306 (1940) (interpreting meaning of words “heirs of the body” and similar words). Comment g to section 306 explains in part:

An adopted child of the designated ancestor is not an heir of his body. Thus, unless a contrary intent of the conveyor is found from additional language or circumstances, an adopted child is not included in a limitation to the “heirs of the body” of a designated person.

Id.

The “effect of adoption” provision contained in the Revised Uniform Adoption Act is distinguishable from the provision considered in Davis. Unlike former Ark. Stat. Ann. § 56-109, Ark. Code Ann. § 9-9-215 does not limit its effect to mere inheritance. Instead, Ark. Code Ann. § 9-9-215 makes it plain that it is applicable for all purposes, including inheritance and applicability of documents and instruments. The Commissioner’s Note to Ark. Code Ann. § 9-9-215 further provides:

[T]he section is intended to make any use of the word ‘child’ or other similar designation such as ‘issue’ in an instrument include an adopted child unless the instrument expressly provides to the contrary.

Clearly, the modern trend is to treat adopted and natural children equally. See generally, Jan Ellen Rein, Relatives by Blood, Adoption, and Association: Who Should Get What and Why, 37 Vand. L. Rev. 711 (1984). Arkansas’s enactment of the Revised Uniform Adoption Act evinces an intent to follow this trend. Nonetheless, the Act allows for a grantor to expressly exclude adopted children. There is no doubt that in 1930 when the deed in question was executed the rule of property of this State was to the effect that an adopted person would not qualify as an heir of the body of an adopting parent. See Davis, supra. The parties to that conveyance had a right to rely upon the law as it was at that time. See Abrego v. United Peoples Fed. Sav. & Loan, 281 Ark. 308, 664 S.W.2d 858 (1984); Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981). Thus, we find that the granting clause in the 1930 deed, “unto the said Lucy Faye Thompson and the legal heirs of her body” expressly excluded adopted children from the remainder interest. We do not reach the question of whether the result would be the same with respect to a conveyance executed after the enactment of Ark. Code Ann. § 9-9-215.

Affirmed.

       Though not in any way an issue in this appeal, the trial court’s characterization of the grantors’ interest as a “possibility of reverter” is technically a misnomer. A possibility of reverter is the grantor’s future interest created following a fee simple determinable. This court has characterized the grantor’s future interest following a fee tail as a “divestible reversion.” See Fletcher v. Hurdle, 259 Ark. 640, 536 S.W.2d 109 (1976).

       It should be noted that Arkansas has abolished the common law fee tail by statute. Ark. Code Ann. § 18-12-301 (1987). Under this statute, “to A and her bodily heirs” creates a life estate in A, and any surviving bodily heirs would have a remainder in fee simple absolute. See also Pickens v. Black, 318 Ark. 474, 885 S.W.2d 872 (1994).


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    Curtis F. VANDERPOOL, Jr. v. FIDELITY & CASUALTY INSURANCE COMPANY
    96-1198
    939 S.W.2d 280
    Supreme Court of Arkansas
    Opinion delivered February 24, 1997

      Dabbs, Graham & Pomtree, by: Jeffrey M. Graham, for appellant.

      Laser, Wilson, Bufford & Watts, P.A., by: Brian A. Brown and Walter Kendel, Jr., for appellee.
   Ray Thornton, Justice.

This is a second appeal following an appeal previously decided by this court, Vanderpool v. Fidelity & Casualty Ins. Co., 322 Ark. 308, 908 S.W.2d 653 (1995). Ark. Sup. Ct. R. l-2(a)(ll). The action arose after appellant Curtis F. Vanderpool, Jr., was injured in an automobile accident in which his work vehicle collided with a car driven by Vicki Kaiko. Vanderpool and appellee Fidelity & Casualty Insurance Company, his employer’s workers’ compensation carrier, entered into a joint petition for approval of settlement that was approved by the Workers’ Compensation Commission. He also received a settlement from Kaiko. The Pulaski County Circuit Court ordered Vanderpool to pay $22,133.97, with interest, to Fidelity in satisfaction of Fidelity’s statutory lien against the settlement he received from Kaiko.

Vanderpool makes the following arguments on appeal: (1) the joint-petition settlement extinguished any right Fidelity had to a statutory hen; (2) a legal dispute existed as to whether the lump-sum payment of $17,000.00 ordered pursuant to the joint-petition settlement constituted “compensation” as used in Ark. Code Ann. § 11-9-410; (3) the trial court lacked subject-matter jurisdiction to adjudicate the dispute as to the size and existence of a statutory lien on benefits paid as workers’ compensation. The development of the issues before us has been procedurally challenging, but we have considered the issues raised by appellant, and we affirm the order of the trial court. We first review the procedural history of the case.

Procedural History

On May 11, 1993, Vanderpool entered into the joint-petition settlement with Fidelity under the terms of which Fidelity paid Vanderpool’s medical expenses, attorney’s fees, and $17,000.00 in exchange for a release of liability of Fidelity and its insured on the workers’ compensation claim. The Workers’ Compensation Commission approved the petition. See Ark. Code Ann. § 11-9-805 (1987). Nearly a year after the approval of the joint petition, Fidelity sued Kaiko asserting subrogation rights to any recovery by Vanderpool for injuries caused by Kaiko’s negligence, and on May 25, 1994, Vanderpool filed a personal-injury action against Kaiko. The matters were consolidated by the trial court, and Vanderpool moved for declaratory judgment that Fidelity’s rights to a statutory lien had been extinguished by the joint petition. The trial court denied the motion on November 30, 1994, and on December 16, Vanderpool filed notice of appeal of the denial of the motion for declaratory judgment.

On March 14, 1995, the transcript was lodged with this court. At that point, the trial court was divested of jurisdiction of the case, as it then became a matter under review by this court. Glick v. State, 283 Ark. 412, 415, 677 S.W.2d 844, 846 (1984). Notwithstanding this divestiture of jurisdiction, on March 28, 1995, the trial court entered an “Agreed Order” in which it attempted to resolve the dispute whether the statutory Hen had been extinguished by Ark. Code Arm. § 11-9-805, holding in pertinent part: “This court’s ruling in favor of Fidelity and Casualty Insurance Company resolves that issue for the purposes of appeal.” This attempt to finally resolve the question whether the joint petition barred Fidelity’s rights to a statutory Hen was beyond the jurisdiction of the trial court because that issue was central to the appeal from the motion for declaratory judgment already lodged in this court. We have held that “[i]t is the filing of the transcript in an appellate court or the placing of the sentence into execution that deprives a trial court of jurisdiction, not the filing of the notice of appeal.” Sherman v. State, 326 Ark. 153, 158, 931 S.W.2d 417, 420 (1996).

The March 28 “Agreed Order” also attempted to approve settlement agreements between Kaiko and Vanderpool and between Kaiko and Fidelity. These issues were not directly involved in the appeal from the motion for declaratory judgment then under review in this court, and the trial court’s approval of the setdement of personal-injury litigation, as requested by all parties to that settlement, is not challenged by any party. In the order, the court also directed Vanderpool to retain disputed funds pending the result of the appeal in lieu of an appeal bond. The damages paid by Kaiko under the settlement agreement resolved the issue of Kaiko’s liability, and provided for the establishment of a fund the disposition of which would be conditioned upon this court’s decision on appeal of the motion for declaratory judgment. We have decided that the approval of the settlement agreements in the context of the factual and procedural circumstances of this case was not so directly involved in the appeal from the denial of a motion for declaratory judgment that we are required to declare the March 28 proceedings a nullity. In the circumstances of this case, approval of a settlement of damage claims against a third party was within the trial court’s jurisdiction, because these matters were not included in the appeal that had been lodged in this court. We have previously held:

The rule that an appeal divests the trial court of jurisdiction applies only to matters necessarily or direcdy involved in the matter under review. It does not stay further proceedings with respect to rights not passed on or affected by the judgment or decree from which the appeal is taken. Matters which are independent of, or collateral or supplemental, are left within the jurisdiction and control of the trial court.

Sherman v. State, 326 Ark. at 158, 931 S.W.2d at 421 (quoting Bleidt v. 555, Inc., 253 Ark. 348, 350-51, 485 S.W.2d 721, 723 (1972) (per curiam)); see also Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995).

The appeal from the trial court’s denial of the motion for declaratory judgment did not contain any record of the “Agreed Order” or the settlement of disputes between Kaiko and the other parties, and there was no appeal from the “Agreed Order” of March 28.

On November 6, 1995, we dismissed the appeal from the denial of the motion for declaratory judgment for lack of a final judgment. Vanderpool v. Fidelity & Casualty Ins. Co., 322 Ark. 308, 908 S.W.2d 653 (1995). When the mandate was entered, jurisdiction was restored in the trial court to resolve the issues of the case.

FideHty filed a Motion to Enforce Mandate, upon which the court held a hearing on March 6, 1996. Regrettably, at this time attorneys for FideHty erroneously advised the trial court that our November 6 decision had considered the trial court’s March 28 “Agreed Order,” which had never been before this court, and had ruled that it was not a final order; they also told the trial court that all FideHty was required to do was to implement the portion of the trial court’s March 28 order which ruled that FideHty’s statutory Hen had not been extinguished by the joint-petition settlement under Ark. Code Ann. § 11-9-805. FideHty advised the trial court that “the only thing left is to direct [appeHant] to turn over $22,133.97, with any interest that has accrued. . . .”

Flowever, during the March 6, 1996, hearing, the trial court orally renewed and ratified its findings and rufings from the March 28, 1995, order, stating: “I directed Curtis Vanderpool to retain a portion of the settlement sufficient to satisfy the Hen of FideHty and Casualty Insurance Company in an interest bearing account. So he should have done that or he’s in contempt of court.” The court added: “WeH, then I’ll order it turned over to you, and settle the case. And that’s a final order, I suppose, at that point in time.”

The trial court entered its order enforcing the mandate on March 15, 1996, making the foHowing findings:

1. On November 29, 1994, the Court entered an Order denying Curtis Vanderpool’s Motion for Declaratory Judgment against Fidelity & Casualty Insurance Company. Curtis Vanderpool appealed to the Arkansas Supreme Court from that ruling.
2. In heu of an appeal bond, Curtis Vanderpool was directed to retain a portion of settlement funds received from Vicki Lynn Kaiko sufficient to satisfy the lien of Fidelity & Casualty Insurance Company in an interest bearing account.
3. On November 6, 1995, the Arkansas Supreme Court dismissed the appeal of Curtis Vanderpool.
4. Fidelity & Casualty Insurance Company has a statutory Hen against the settlement proceeds in the sum of $22,133.97.

It is clear that the court adopted, ratified, and confirmed its ruling in favor of Fidelity on the issue of the statutory lien, and ordered Vanderpool to pay to Fidelity the sum of $22,133.97, together with interest from the time of the approval of the settlement with Kaiko. The March 15, 1996, order by the trial court is a final order determining the issue whether the statutory lien is barred by the joint petition. Vanderpool has appealed from this order, and we proceed to our examination of the merits of the appeal.

Merits of Appeal

Vanderpool argues that because his claim for workers’ compensation benefits was settled pursuant to Ark. Code Ann. § 11-9-805, Fidelity is no longer entided to pursue an action in tort against the negligent third party pursuant to § 11-9-410. Section ll-9-410(b)(l) provides in part that “an employer or carrier liable for compensation under this chapter for the injury or death of an employee shall have the right to maintain an action in tort against any third party responsible for the injury or death.” (Emphasis added.) The purpose of these provisions is articulated in Ark. Code Ann. § 11-9-410(b)(5), which provides that “the purpose and intent of this subsection is to prevent double payment to the employee.”

The thrust of Vanderpool’s argument is that § 11-9-805 extinguishes the rights of all parties, including the right of an employer or carrier to bring an action for a statutory lien, once the joint petition is entered. Section 11-9-805 provides in pertinent part:

(b) If the commission decides it is for the best interests of the claimant that a final award be made, it may order an award that shall be final as to the rights of all parties to the petition. Thereafter, the commission shall not have jurisdiction over any claim for the same injury or any results arising from it.

Id. § ll-9-805(b) (emphasis added).

In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Bill Fitts Auto Sales, Inc. v. Daniels, 325 Ark. 51, 55, 922 S.W.2d 718, 720 (1996). The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the legislature. Id. As a guide in ascertaining legislative intent, this court often examines the history of the statutes involved, as well as the contemporaneous conditions at the time of their enactment, the consequences of interpretation, and all other matters of common knowledge within the court’s jurisdiction. Citizens to Establish a Reform Party v. Priest, 325 Ark. 257, 261, 926 S.W.2d 432, 435 (1996). Furthermore, in construing any statute, this court will place it beside other statutes relevant to the subject matter in question, giving it meaning and effect derived from the combined whole. Hercules, Inc. v. Pledger, 319 Ark. 702, 706, 894 S.W.2d 576, 578 (1995).

In Simmons First National Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985), this court recognized that “the purpose of workers’ compensation statutes was to change the common law by shifting the burden of all work-related injuries from individual employers and employees to the consuming public.” Id. at 278-79, 686 S.W.2d at 417. Likewise, Professor Larson has noted:

[T]he entire compensation system has been set up and paid for, not by the parties, but by the public. The public has ultimately borne the cost of compensation protection in the price of the product .... The public interest is also thwarted when the employer and employee agree to a settlement which unnecessarily increases the cost of the product by giving the worker more than is due.

3 Arthur Larson, Workmen’s Compensation Law, § 82.41 (1988).

The purpose in allowing an insurance carrier and an employer to pursue an action in tort against a third party is to ensure that the employee is not doubly compensated to the detriment of the employer and insurance carrier and, ultimately, the consuming public. For this reason, it is clear that the finality of a joint-petition settlement is viewed from the claimant’s standpoint, and it is the claimant’s right to proceed further that is extinguished. See Stratton v. Death & Permanent Total Disability Trust Fund, 28 Ark. App. 86, 88, 770 S.W.2d 678, 679-80 (1989). In Hartz Seed Co. v. Thomas, 253 Ark. 176, 485 S.W.2d 200 (1972), we stated the following when considering a joint petition for final settlement:

The necessity for extreme caution in approving such settlements so clearly recognized by the commission’s procedural rule lies in the fact that any award based thereon finally concludes all right of the parties, even foreclosing any right of appeal from the order of approval. This is the only procedure under our act which leaves the claimant without any further remedy, regardless of subsequent developments. ... It is necessary that the interest of both the employee and the public be protected ....

Id. at 179, 485 S.W.2d at 202.

The court of appeals correctly noted in Ward v. Fayetteville City Hosp., 28 Ark. App. 73, 770 S.W.2d 668 (1989), that “a third-party tortfeasor is not subject to the Workers’ Compensation Act[.] For that reason the insurance carrier can settle the claim with the claimant and reserve its right to proceed against the tortfeasor.” Id. at 76, 770 S.W.2d at 670.

The joint petition in the instant case reflects that “claimant understands that approval of the settlement will forever bar and preclude any further claim against respondents.” (Emphasis added.) The order entered pursuant to the joint petition states that “upon payment of these sums this claim shall be forever barred.” (Emphasis added.) The joint petition and order filed in this case stated only that the settlement barred and precluded any further claim against the respondents, and that “this claim” was forever barred. The implication from the language in those documents is that Vanderpool’s claim is forever barred and precluded as against Fidelity and Vanderpool’s employer. The documents do not preclude Vanderpool from seeking compensation against the third-party tortfeasor nor do they preclude Fidelity from doing the same.

We also note that § 11-9-805 provides that a settlement pursuant to joint petition shall be final as to the rights of all parties to the petition. A third-party tortfeasor is not a “party” covered under § 11-9-805; thus, both the insurance carrier and the injured employee can take action against the third party. Because a third-party tortfeasor, in this case Vicki Kaiko, is not a party to the joint petition presented to and approved by the Workers’ Compensation Commission, both Vanderpool and Fidelity have the right to proceed against her.

The trial court’s March 15, 1996, order granting Fidelity a statutory Hen on sums recovered from a third-party tortfeasor was a final decision. By its order, the trial court concluded that the right to such a lien was not extinguished by the joint-petition setdement approved by the Workers’ Compensation Commission, and we affirm on that point.

Vanderpool next argues that the trial court erred in ordering him to pay the money to Fidelity without first determining whether the $17,000.00 paid to Vanderpool in a lump sum is included within the statutory definition of “compensation.” The abstract does not show that this question was presented to the trial court for decision at the time of the entry of the “Agreed Order” of March 28, 1995. In the March 6, 1996, proceedings, leading to the final order on March 15, 1996, Vanderpool raised this issue in his brief, but he failed to obtain a ruhng from the trial court. Failure to obtain a ruhng from the trial court is a procedural bar to our consideration of the issue. We have held on many occasions that we will not address the merits of an argument where the appellant has failed to obtain a ruhng from the trial court. Howard v. Northwest Arkansas Surgical Clinic P.A., 324 Ark. 375, 378, 921 S.W.2d 596, 597 (1996); Haase v. Starnes, 323 Ark. 263, 273, 915 S.W.2d 675, 680 (1996). Therefore, we also affirm on this point.

Finally, Vanderpool argues that because this was a workers’ compensation action, the circuit court lacked subject-matter jurisdiction to award payment to Fidelity and to determine what constitutes “compensation” under the Workers’ Compensation Act. Vanderpool did not receive a ruhng on this issue; however, where the question is one of subject-matter jurisdiction, it does not matter how it arises. Arkansas Dep’t Of Human Servs. v. Hogan, 314 Ark. 19, 24, 858 S.W.2d 105, 108 (1993). This question may be raised for the first time on appeal or the court may raise it on its own, but the parties to an action may not confer subject-matter jurisdiction on a court. Id. at 24, 858 S.W.2d at 108. We have noted that the question of subject-matter jurisdiction is one that we are obligated to raise on our own, due to the fact that if the trial court lacked subject-matter jurisdiction, the appellate court also lacks subject-matter jurisdiction. Douthitt v. Douthitt, 326 Ark. 372, 374, 930 S.W.2d 371, 373 (1996).

Under the Arkansas Constitution, circuit courts have original jurisdiction in all cases where jurisdiction is not expressly vested in another court; in order to successfully attack a circuit court’s jurisdiction, a party must demonstrate that another court has been given exclusive jurisdiction. Daves v. Hartford Accident & Indent. Co., 302 Ark. 242, 246, 788 S.W.2d 733, 735 (1990) (upholding circuit court’s ruling enforcing statutory lien and subrogation rights).. The section under which both Fidelity’s and Vanderpool’s actions were filed below, Ark. Code Ann. § 11 — 9— 410, places jurisdiction in the circuit courts, as it provides for the maintenance of an action in tort. Circuit courts are courts of law, and an action in tort is an action at law; therefore, jurisdiction of this action was properly before the circuit court. Douthitt v. Douthitt, 326 Ark. at 374, 930 S.W.2d at 373. Further, subsection (c) states that any settlement of a third-party action shall be approved by either the commission or .the court, indicating concurrent jurisdiction over such matters.

In this case, the trial court had subject-matter jurisdiction because circuit courts have original jurisdiction in all cases where jurisdiction has not been exclusively vested in another tribunal, and because § 11-9-410 provides insurance carriers with the right to maintain an action in tort against third-party tortfeasors.

For all of the above reasons, the decision of the trial court is affirmed.

Appellee’s motion to strike, to dismiss appeal, to stay briefing schedules, and for sanctions is denied.

Glaze, J., not participating.


author: Per Curiam.

text:
    Keithrick MARTIN v. STATE of Arkansas
    CR 97-153
    938 S.W.2d 234
    Supreme Court of Arkansas
    Opinion delivered February 24, 1997

      McCullough Law Firm, by: R.S. McCullough, for appellant.
    No response.
   Per Curiam.

Keithrick Martin was charged with aggravated robbery and capital felony murder. He was convicted of aggravated robbery, but a mistrial resulted on the murder charge. He has sought a writ of prohibition to prevent a retrial on the murder charge, contending such a trial would place him twice in jeopardy. He asks a stay of the retrial on the murder charge while the request for prohibition is before this Court.

Mr. Martin’s motion contains a statement of service of the motion showing that it has been served on all parties to the proceeding, but it does not show that it has been served on the Trial Court as is required by Ark. Sup. Ct. Rule 6-1 (c). The motion is denied without prejudice for failure to serve it upon the Trial Court.


text:
    Timothy MOSES v. STATE of Arkansas
    CR 96-680
    938 S.W.2d 233
    Supreme Court of Arkansas
    Opinion delivered February 24, 1997

      Young & Finley, by: Richard H. Young, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Asst. Att’y Gen., for appellee.
   Per Curiam.

Timothy Moses has filed a motion for a belated appeal from his convictions of theft and burglary. As the notice of appeal and designation of the record were apparently timely, but his attempt to docket the record was not, we will treat the motion as one for rule on the clerk.

Counsel for Mr. Moses attributes failure to file the record on time to Mr. Moses’s inability to pay for the transcript and accepts no responsibility for the belated tender of the record. If counsel files a motion for rule on the clerk within thirty days from the date of this order, accepting full responsibility for the delay in tendering the transcript, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct. Reyes v. State, 326 Ark. 913, 934 S.W.2d 526 (1996).

Counsel, apparently unaware of Ark. R. Crim. P. 4-30(1), has also moved to withdraw from the appeal, stating he “is unsure how to proceed when there is a transcript with no apparent issues for appeal and his client refuses to contact him.” Counsel’s motion to withdraw is denied.


text:
    Clint SAWYER v. STATE of Arkansas
    CR 96-693
    938 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered February 24, 1997

      Appellant, Pro se.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Per Curiam.

The pro se appellant, Clint Sawyer, was convicted of three counts of rape and three counts of burglary in 1983. He was sentenced to a total of sixty years’ imprisonment for the burglary convictions, which he is serving concurrently with three consecutive life sentences that he received on each of the rape convictions. We affirmed the judgment in Sawyer v. State, 284 Ark. 26, 678 S.W.2d 367 (1984). In this case, Sawyer is appealing an order of the Lincoln County Circuit Court that denies his petition for habeas corpus relief. We affirm.

A writ of habeas corpus will issue only if the commitment was invalid on its face or the committing court lacked jurisdiction. Cothrine v. State, 322 Ark. 112, 907 S.W.2d 134 (1995). On appeal, Sawyer argues that the court that tried him lacked subject-matter jurisdiction because the information charging him with three counts of rape was insufficient. Specifically, he contends that the culpable mental state was omitted from statutory elements of the crime that were listed in the information.

Each of the rape charges that were included in the information filed against Sawyer read as follows:

The said Clint Sawyer in the county and state aforesaid, on or about the 17th day of December 1982, did unlawfully and feloniously engage in sexual intercourse with. . .(name and address of victim) by forcible compulsion in violation of Ar. Stat. #41-1803,. a class Y felony;

At the time the information was filed, rape was defined by Ark. Stat. Ann. § 41-1803, which provided:

Rape (1) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(a) by forcible compulsion; or
(b) who is incapable of consent because he is physically helpless; or
(c) who is less than (11) years old.
(2) Rape is a class Y felony.

We have held that an information is sufficient if it names the defendant, the offense charged, the statute under which the charge was made, the court and county where the alleged offense was committed, and if it set forth the principal language of the statute and the asserted facts constituting the offense. Beard v. State, 269 Ark. 16, 598 S.W.2d 72 (1980). As can be seen, the rape charges filed against Sawyer meet these requirements. Accordingly, the information was sufficient.

Even if the information were insufficient, the trial court would have had subject-matter jurisdiction of the rape charges. We have previously observed that the proper time to object to the sufficiency of an indictment or information is prior to trial. See Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991); England v. State, 234 Ark. 421, 352 S.W.2d 582 (1962); Ark. Code Ann. § 16-85-705 (1987). We have declined to review the sufficiency of an information on appeal when there was no proper objection in the court below. Prince, supra. If we considered the issue to be jurisdictional, we could have overlooked the failure to object and reversed the conviction, if necessary, on our own motion. See Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989). Accordingly, the subject-matter jurisdiction of the trial court is not implicated when the sufficiency of the information is questioned, and Sawyer is not entitled to habeas corpus relief.

Sawyer also argues that this court has impermissibly narrowed the grounds for habeas corpus relief. In particular, he contends that our cases, which hold that a writ of habeas corpus will issue only if the commitment was invalid on its face or the committing court lacked jurisdiction, do not embrace the intent of the legislature as it is expressed in the language of the habeas corpus statute, Ark. Code Ann. § 16-112-103 (1987). The State, in response, contends that the legislature has declined several opportunities to amend the statute to express its disagreement with this court’s interpretation. The State argues that since the legislature has not done so, the court’s interpretation remains the law. We agree.

Ark. Code Ann. § 16-112-103, in pertinent part, provides:

(a) The writ of habeas corpus shall be granted forthwith. . .to any person who shall apply for the writ by petition showing, by affidavit or other evidence, probable cause to believe he is detained without lawful authority. . .

We have held that a habeas corpus petitioner is being held without lawful authority when the commitment order is invalid on its face or the circuit court lacked jurisdiction. Mitchell v. State, 233 Ark. 578, 346 S.W.2d 201 (1961). The legislature is presumed to be familiar with this court’s interpretation of its statutes, and if it disagrees with those interpretations, it can amend the statutes. See Tovey v. City of Jacksonville, 305 Ark. 401, 808 S.W.2d 740 (1991). Without such amendments, however, this court’s interpretation of the statute remains the law. See Morris v. McLemore, 313 Ark. 53, 852 S.W.2d 135 (1993).

Affirmed.


text:
    Paul Eddie WEAVER v. STATE of Arkansas
    CR 97-146
    938 S.W.2d 234
    Supreme Court of Arkansas
    Opinion delivered February 24, 1997

      Larry Hartsfteld, for appellant.
    No response.
   Per Curiam.

The appellant, Paul Eddie Weaver, has filed a motion for rule on the clerk. His attorney, Larry Hartsfield, accepts responsibility for failing to file a timely notice of appeal.

We treat this motion as one for belated appeal and grant the motion. Failure on the part of counsel to perfect an appeal for a criminal defendant who wishes to appeal constitutes good cause for granting a belated appeal. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

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


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

text:
    ARKANSAS GAME and FISH COMMISSION v. Nelson MURDERS, Jr., Roland Bates, Judy Pickering, Roy Pickering, Dean Meredith, Verdell Meredith, and Darrell Meredith
    96-338
    938 S.W.2d 854
    Supreme Court of Arkansas
    Opinion delivered March 3, 1997

      P. Douglas Mays and James Watson, and Friday, Eldredge & Clark, by: Robert S. Shafer, H. Charles Gschwend, Jr., and Allison Graves, for appellant.
    Q. Byrum Hurst, Jr., for appellees.
   W.H.“Dub” Arnold, Chief Justice.

The appellant, Arkansas Game and Fish Commission, appeals a ruling of the Garland County Circuit Court declaring that amended code 18.04, which prohibits road hunting, is void. Because we agree that the amended portion of the Commission’s rule is unconstitutionally overbroad and exceeds the scope of the Commission’s constitutional authority, we affirm the ruling of the trial court.

The appellees are licensed hunters who reside in Garland County, Arkansas. Pursuant to Ark. Code Ann. § 25-15-207(a) (1987), they brought a declaratory judgment action against the Commission and its Director, Steve N. Wilson, challenging amended code provision 18.04. The provision generally prohibits hunting from or shooting across any city, county, state, or federally maintained road or right-of-way. It further prohibits hunting within fifty yards from the center of any city, county, state, or federally-maintained road or right-of-way during any modern gun deer season. The penalty for violation of the rule ranges from a $100.00 to a $1,000.00 fine. The amendatory language at issue, added by the Commission in April of 1995, reads as follows:

NOTE: It shall be prima facie evidence during modern gun and muzzleloading deer season that a person is hunting if the person is in possession of a loaded firearm on any city, county, state, or federally-maintained road or the right-of-way thereof in an area in which wild game is likely to be present. Firearms being carried in a motor vehicle or conveyance must be unloaded and enclosed in a case or placed in a gun rack (unloaded) while on any city, county, state or federally-maintained road or the right-of-way thereof in an area in which wild game is likely to be present.
EXCEPTIONS: (1) Handguns carried in motor vehicle for purpose other than hunting.
(2) Persons engaged in a lawful action to protect their livestock or property.
(3) Law enforcement officials in respect to the official job duties.

The appellees filed this action on August 10, 1995, challenging the amended code 18.04 on many grounds, including that it was arbitrary and capricious and unconstitutionally vague and over-broad. They also claimed that the amendment violated the American Disabilities Act, the equal protection clause, the constitutional right to bear arms, the presumption of innocence, and the separation-of-powers doctrine. Finally, the appellees claimed that the amendment was contrary to statute, particularly Ark. Code Ann. § 5-73-120 (Repl. 1993). Following a trial, the trial court entered an order declaring that the amended portion of regulation 18.04 was void. The trial court’s order adopted the appellees’ findings and conclusions, with the exception of their arguments regarding the ADA. On appeal, the Commission challenges each of the trial court’s rulings.

The appellees maintain, and the trial court agreed, that amended code 18.04 is unconstitutionally overbroad because its wording is so inclusive that it may affect the rights of non-hunters who possess loaded or uncased firearms on city, county, state, or federally-maintained roads or rights-of-way. In turn, the Commission urges that amended code 18.04 bears a rational relationship to the legitimate objective of suppressing illegal road hunting, an activity which, pursuant to Amendment 35 of the Arkansas Constitution, the Commission has the authority to regulate. According to the Commission, the fact that some persons who have no intention of hunting may travel the highways during deer season with loaded or uncased firearms does not undermine the rule’s legitimate sweep.

We agree that the Commission, under Amendment 35, has plenary authority over the “control, management, restoration, conservation and regulation of birds, fish, game and wildlife resources of the State.” Section 8 of Amendment 35 also grants the Commission “the exclusive power and authority to regulate the manner of taking game, to regulate seasons, and to fix penalties for violation of the regulations.” However, while we have said that the Commission has broad discretion in carrying out its powers, see Chaffin v. Ark. Game & Fish Comm’n, 296 Ark. 431, 757 S.W.2d 950 (1988), its discretion is not unfettered. The Commission’s power to regulate the manner of taking game certainly does not translate into a general power to regulate the general possession of all firearms on city, county, state, or federally maintained roads or rights-of-way.

An overbroad statute is one that is designed to punish conduct which the state may rightfully punish, but which includes within its sweep constitutionally protected conduct. McDougal v. State, 324 Ark. 354, 359-360, 922 S.W.2d 323 (1996), citing 4 R. Rotunda & J. Novak, Treatise on Constitutional Law, § 20.8 (2d ed. 1992). The Commission’s rule, as amended, essentially shifts the burden to non-hunters who possess loaded or uncased firearms on city, county, state, or federally maintained roads or rights-of-way, to prove that he or she is not engaged in the prohibited act of road hunting. When examining amended rule 18.04, we conclude that it may include within its sweep innocent and legitimate conduct. For example, it is an affirmative defense to the charge of carrying a weapon that the person charged was carrying the weapon upon a journey. See Ark. Code Ann. § 5-73-120(c)(4) (Supp. 1995). The amended rule is thus overbroad, and exceeds the Commission’s authority granted under Amendment 35 to regulate the manner of taking game.

Because we agree with the trial court that amended rule 18.04 is unconstitutionally overbroad, it is unnecessary for us to reach the Commission’s remaining arguments on appeal. Based upon the foregoing, the decision of the trial court is affirmed.

       The issue of whether appellees, who are all hunters, have standing to assert the rights of non-hunters, was not raised at the trial court level. Consequently, we do not discuss this issue on appeal, as lack of standing does not deprive a court of jurisdiction. See Pulaski County v. Carriage Creek Improvement Dist. No. 639, 319 Ark. 12, 888 S.W.2d 652 (1994).


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

text:
    Jeanne W. BURNETT v. FIRST COMMERCIAL TRUST COMPANY
    96-994
    939 S.W.2d 827
    Supreme Court of Arkansas
    Opinion delivered March 3, 1997

      Dan McGraw, for appellant.

      Richard Slagle, for appellee, First Commercial Trust Co., N.A.
   W.H.“Dub” Arnold, Chief Justice.

This is a case involving a testamentary trust. The issue is whether the will containing the trust is ambiguous in its disposition of the testatrix’s property. We hold that the will is not ambiguous, and that the chancellor erred in receiving parol evidence on the question of the testatrix’s intent. We therefore reverse and remand.

The testatrix, Lois E. Burnett, died on June 10, 1994. At the time of her death, her family consisted of her brother, James Burnett, her nephew, William Spencer, Jr., and Spencer’s six children. Mrs. Burnett’s will provided for her funeral expenses and made several small, specific bequests. The will then disposed of the remainder of her estate as follows:

I give, devise, and bequeath all the rest and residue of my estate, whether real, personal, or mixed, and of whatever kind or nature, wheresoever located and whenever acquired to Arkansas Bank and Trust [now First Commercial Trust Company] in Trust for my friend, Flournoy Adkins, during his lifetime.
The terms of said trust being as follows:
1. Flournoy Adkins is to receive my automobile at the time of my death for his use and benefit.
2. Flournoy Adkins has the right and use of my home located as follows:
[description of the property]
Upon the death of Flournoy Adkins, the Trustee shall distribute the above described land as follows: one-half interest to my nephew, William Spencer, Jr., and one-half interest to his six children. . .in equal shares, share and share alike.

As can be seen, the will instructs the trustee that the realty contained in the trust corpus is to be distributed upon the death of Flournoy Adkins. However, it makes no provision for the distribution of the personalty contained in the trust corpus. The distinction is important. At the time of Mrs. Burnett’s death, the real property in the trust was valued at $25,000.00; the personal property was valued at $194,702.14.

On May 3, 1995, First Commercial brought an action for declaratory judgment seeking instructions on how to distribute the personalty in the trust upon Flournoy Adkins’s death. First Commercial claimed that the trust’s failure to expressly provide for such distribution was the result of a clerical error. The complaint asked that the personalty be distributed in the same manner as the realty: one-half to William Spencer, Jr., and one-half to the Spencer children. James Burnett, who had received no bequest in the will, answered the complaint. He contended that any part of the trust corpus lacking specific directions for distribution should pass through the laws of intestate succession. The chancellor found that the silence of the will regarding the distribution of the personalty created an ambiguity. He thus allowed the use of parol evidence to explain the omission.

Bruce Garrett, the attorney who prepared Mrs. Burnett’s will, testified that Mrs. Burnett came to him in 1992 to change her will. Garrett testified that the will’s failure to provide for the disposition of the trust’s personal property was the result of a clerical error. The provision which read, “upon the death of Flournoy Adkins, the Trustee shall distribute the above described land” should have read, “shall distribute the above described land and personalty”. Garrett further testified that Mrs. Burnett had decided to cut James out of the will and to provide for her friend, Flournoy Adkins. The previous will, which Mrs. Burnett executed in 1990, had bequeathed the bulk of her estate to James Burnett and William Spencer, Jr. A copy of Mrs. Burnett’s old will reflecting the deletions, additions, and handwritten notes of Garrett and his secretary, was introduced into evidence. The exhibit shows that the provisions which were made for James Burnett in 1990 were marked through. A witness who was experienced in the use of shorthand testified that some of the secretary’s notes on the will could be translated as directing the personal property to be distributed to the residual beneficiaries upon Adkins’s death.

The chancellor, after hearing the evidence, found that the testatrix intended to bequeath all trust property, including personal property, to William Spencer, Jr., and his six children, upon the death of Flournoy Adkins. Jeanne Burnett, as special administratrix of her late husband’s estate, brings this appeal.

Ordinarily, the intention of the testator is to be gathered from the four corners of the instrument itself. Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977). Extrinsic evidence may be received on the issue of the testator’s intent, but only where the terms of the will are ambiguous. In re Estate of Conover, 304 Ark. 268, 801 S.W.2d 299 (1990). The language of Mrs. Burnett’s will unequivocally expresses the intention that, upon the death of Flournoy Adkins, the land contained in the trust shall be distributed. No mention is made of her substantial personal estate. The question we must answer is whether Mrs. Burnett’s failure to dispose of her entire estate creates an ambiguity. An ambiguity has been defined as an indistinctness or uncertainty of meaning of an expression used in a written instrument. Smith v. Smith, 229 Ark. 579, 317 S.W.2d 275 (1958). Such a definition contemplates the need for interpretation of terms actually used in the will. As such, it does not encompass the situation in which a testatrix does not dispose of a portion of her estate. We have recognized that oral evidence should not be used to supply terms in a writing which are wholly absent. Hickman v. Trust of Heath, House & Boyle, 310 Ark. 333, 835 S.W.2d 880 (1992).

In a similar case from Texas, In re Estate of Hunt, 908 S.W.2d 483 (Tex. App. 1995), a testatrix failed to completely dispose of a remainder interest in a trust. The court said the following:

It is true that Marguerite Hunt failed to completely dispose of her estate in the Will. It is also true that upon reading the entire will it is reasonable to presume that it was Marguerite Hunt’s intention to award the remainder interest in the Delph Trust to the Salvation Army. But she did not say so. And we are prohibited from speculating as to what Marguerite Hunt would have done had she completed her will. A court may not rewrite a will or add provisions under- the guise of construction of the language of the will in order to reflect some presumed intention of the testatrix. Even though there is a strong presumption against intestacy, the presumption does not arise when the testatrix fails, through design or otherwise, to make a complete disposition of her property. (Citations omitted).

Our own case law has espoused much the same philosophy — that the paramount objective in interpreting a will is the intention of the testator as expressed in the language of the will, and that it is presumed that a testatrix knows the contents of the will she executes. Chlanda v. Estate of Fuller, 326 Ark. 551, 932 S.W.2d 760 (1996); Armstrong v. Butler, supra; Heirs of Mills v. Wylie, 250 Ark. 703, 466 S.W.2d 937 (1971). The Heirs of Mills case is particularly enlightening. There, Mr. Mills’s will contained a number of contingency provisions, including a provision that bequeathed most of his estate to a nephew and a sister-in-law, should Mills and his wife die in a “common disaster”. However, the will failed to provide for the situation in which Mrs. Mills might predecease her husband. In fact, she did predecease him. Mr. Mills’s heirs (who were not provided for in his will) filed suit, contending that, since the will made no bequest in the event Mrs. Mills predeceased her husband, Mr. Mills’s estate should pass through the laws of intestate succession. In holding that the will contained no ambiguity, we said the following:

actually our holding in this case may not be in accord with the actual intention of the testator — existing in his mind — but certainly it is in accord with long established law that the court’s finding shall be based on the intention of the testator — as expressed by the language of the will.

Id. at 704, 466 S.W.2d at 938.

First Commercial argues that our acceptance of the appellant’s argument will result in a partial intestacy. In response to a similar contention, we said the following in Chlanda v. Estate of Fuller, supra:

It is correct to state that there is a presumption in the rules of construction that ‘a person who takes the time and effort to make a will does not desire partial intestacy’. Kidd v. Sparks, 276 Ark. 85, 633 S.W.2d 13 (1982). However, a probate court should not resort to the rules of construction unless the intent of the testator, as shown by his express words, is in doubt.

326 Ark. at 555, 932 S.W.2d at 763.

The express language of Mrs. Burnett’s testamentary disposition reflects the unambiguous intention that, upon the death of Flournoy Adkins, the land, and no other property contained in the trust corpus, shall pass under the will. We must therefore reverse and remand this case with instructions to enter orders consistent with this opinion.

Reversed and remanded.

Glaze and Thornton, JJ., dissent.

Ray Thornton, Justice,

dissenting. This is an appeal from an order of the Garland County Chancery Court’s finding that an ambiguity exists in the provisions included in the Last Will and Testament of Lois E. Burnett, which requires judicial interpretation of the conflict and repugnance between the provisions of the instrument. Based upon that finding of ambiguity, the Chancellor considered evidence and resolved the ambiguity by requiring the disposition of all property, real, personal, and mixed, as follows: one-half to Ms. Burnett’s nephew, Willie Spencer, and one-half to Mr. Spencer’s children, upon the death of Flournoy Adkins, for whose benefit all of testatrix’s property, real, personal, and mixed, was placed in trust for his life. Appellant, Jeanne W. Burnett, the widow of the testatrix’s brother, contends that upon Mr. Adkins’s death, all personal property in the trust must be distributed under the laws of intestate succession. I would affirm the order of the Chancellor.

While there are numerous granting clauses in the will, all of the internally inconsistent provisions are contained in Section III of the will. Section III B reads as follows:

B. Provided, however, in the event my friend, Flournoy Adkins, should predecease me, co-decease with me, or in the event that we should die at the same time or as a result of a common accident or catastrophe, then and in that event, I give, devise, and bequeath all the rest and residue of my estate as follows: one-half (V2) to my nephew, William Spencer, Jr., and one-half (V2) to my nephew’s six children, Billy Spencer, Jasen Spencer, Adam Spencer, Mary Fagan, Ann Griffen, and Elizabeth Forbes, in equal shares, share and share alike.

In the event Flournoy Adkins survives Ms. Burnett’s death, Section III A. establishes a trust for his benefit during his lifetime, with the following provision:

A. I give, devise, and bequeath all the rest and residue of my estate, whether real, personal, or mixed, and of whatever kind or nature, wheresoever located and whenever acquired to Arkansas Bank and Trust as Trustee in Trust for my friend, Flournoy Adkins, during his lifetime.

Within these two provisions, there is no ambiguity. Ms. Burnett’s estate goes to her nephew and his children if Mr. Adkins does not survive her, but if he does survive her, he is to have a fife interest in all the property placed into trust.

However, the instrument contains an ambiguity in directing the trustee’s distribution of the estate following Mr. Adkins’s death. From the four corners of the instrument, it is apparent that Ms. Burnett intended for all of her property to be distributed in accordance with her will, and that following her death and the death of her friend, Flournoy Adkins, the property was to be distributed to her nephew and his children. Unfortunately, ambiguity arises because the instructions to the trustee fail to clearly specify that “personal” property should be distributed to anyone upon Mr. Adkins’s death, providing only that upon the termination of the trust for the benefit of Mr. Adkins, the “land” shall be distributed to the nephew and his children.

Chancellor Switzer correctly finds that placing all the property in the trust, without addressing the distribution of personal property, creates an ambiguity. Fie states that “there is a conflict and repugnance between the provisions such as to require judicial interpretation.”

As we consider whether a potential flaw in the establishment of the trust gives rise to an ambiguity requiring judicial interpretation, we should be reminded of these principles:

1) The testatrix did not want to die intestate, but intended all property to pass under her will. Whenever possible, wills should be interpreted so as to give effect to the intent of the testator and avoid a partial intestacy. Lockhart v. Lyons, 174 Ark. 703, 706, 297 S.W. 1018 (1927); see also Chlanda v. Estate of Fuller, 326 Ark. 551, 555, 932 S.W.2d 760 (1996) (quoting Kidd v. Sparks, 276 Ark. 85, 90, 633 S.W.2d 13, 16 (1982)).

2) Here, it is not necessary to look beyond the four corners of Section III to determine that an ambiguity exists requiring interpretation. We should remember that we are addressing an ambiguity in a trust provision established by the will, which also provides in the same section for the distribution of all the estate to her nephew and his children upon Mr. Adkins’s death, if that occurs before the death of the testatrix. If the ambiguity is not resolved, the trust will fail. We are not called upon to reform the will, but to interpret ambiguous instructions to trustees managing a trust clearly established by the will in order to resolve the conflict and repugnance between provisions of section III of the instrument itself.

In the circumstances of this case, it was appropriate for the Chancellor to consider evidence to resolve the ambiguity and to determine what interpretation effectuates the testatrix’s intent in the establishment of the trust. In reaching this issue we follow the principles of Galloway v. Darby, 105 Ark. 558, 151 S.W. 1014 (1912), Lockhart v. Lyons, 174 Ark. 703, 297 S.W. 1018, and Brunk v. Merchants National Bank, 217 Ark. 499, 230 S.W.2d 932 (1950), recognizing the presumption that the testatrix intended for all of her property to be distributed under the will.

In Lockhart v. Lyons, 174 Ark. 703, 297 S.W. 1018, this court stated:

The true rule in the construction of wills, which can be said to be paramount, is to ascertain or arrive at the intention of the testator from the language used, giving consideration, force and meaning to each clause in the entire instrument. . . .
A testator is presumed to intend to dispose of his entire estate, and it must be borne in mind, in the construction of wills, that they are to be so interpreted as to avoid partial intestacy, unless the language compels a different construction ....

Id. at 706, 297 S.W. at 1019.

In Galloway v. Darby, 105 Ark. 558, 151 S.W. 1014, we stated:

The presumption against intended intestacy leads to a liberal, rather than to a restrictive, construction of the residuary clause, in the will, in order to prevent partial intestacy. . . . The rule is that the testator’s intention is to be ascertained from the whole will. . . . Hence it follows that language which in a general or residuary clause may not alone be sufficiently conclusive to dispose of all the property of the testator may have its meaning enlarged to correspond with an intention shown in the introductory clause.

Id. at 572-573, 151 S.W. at 1020 (emphasis added).

These cases were cited in Brunk v. Merchants National Bank, 217 Ark. 499, 230 S.W.2d 932 (1950), where we concluded that the will disposed not only of the personal property described in the will, but also the real estate that was not specifically mentioned in the will. We then stated:

We have concluded, from a consideration of the whole will, that the Chancellor correcdy held that the testator intended to dispose of his entire estate. The decedent’s real estate passed under the residuary clause to the charities named therein.

Id. at 502, 230 S.W.2d at 934.

Appellant relies upon our decision in Mills’ Heirs v. Wylie, 250 Ark. 703, 466 S.W.2d 937 (1971), in which we cited Smith v. Smith, 229 Ark. 579, 317 S.W.2d 275 (1958), as follows:

It is well settled law in this state, so well settled as to require no citation of authority, that where there is no ambiguity, or no conflict or repugnance between the provisions of the will, judicial interpretation or construction is not required.

Id. at 707, 466 S.W.2d at 940. In Mills’ Heirs, we also state the rule that “where the meaning of the language is not ambiguous, testimony as to the testator’s intention is ‘inadmissible’. . .” and then concluded: “Since we find that there was no ambiguity, there is no necessity to discuss the testimony.” Id. at 708, 466 S.W.2d at 940 (emphasis added).

Unlike the will in Mills’ Heirs, which had no internal inconsistencies, here we have an internally inconsistent testamentary trust, the ambiguous language of which would devise and bequeath the testatrix’s property to her nephew and his children if her friend predecease her, but provided no instruction to the trustee as to the disposition of her personal property after her friend’s death, should he survive her. This internal ambiguity requires that evidence of the testatrix’s intent be admitted to resolve the conflict between provisions of the instrument.

I believe that the instrument must be looked at as a whole; that from the four corners of the instrument, it is apparent that an ambiguity exists; that evidence of the testatrix’s intent was required to resolve the ambiguity; and that the Chancellor’s rulings and order should be sustained. I would affirm the decision.

Glaze, J., joins in this dissent.


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

text:
    James E. NOBLES v. Pati CASEBIER
    96-1137
    938 S.W.2d 849
    Supreme Court of Arkansas
    Opinion delivered March 3, 1997
    [Petition for rehearing denied March 24, 1997.]

      Larry J. Steele, for appellant.

      Barrett & Deacon, by: David W. Cahoon and D.P. Marshall, Jr., for appellee.
   W.H.“Dub” Arnold, Chief Justice.

This is a personal injury case arising out of an automobile accident on January 11, 1994. The jury rendered a verdict in favor of the appellee, Pati Casebier. Appellant James Nobles raises one issue on appeal. He contends that the trial court made an improper comment on the evidence, thus warranting a mistrial. We find no error and affirm.

The accident occurred while Mr. Nobles was driving his 1982 Chevrolet pickup truck on State Highway 1. While in the process of turning left from the highway, he was struck by a 1989 Ford automobile driven by Ms. Casebier. Mr. Nobles filed suit against Ms. Casebier alleging that her negligence was the proximate cause of the accident and that, as a result thereof, he sustained personal injuries. Ms. Casebier denied any negligence, and the matter was set for trial.

On February 29, 1996, the case was tried before a jury in Randolph County. After jury selection and opening statements, Mr. Nobles presented his case, consisting of his own testimony, the testimony of chiropractor Dr. Evana Dion Taylor Pickett, the testimony of Ms. Casebier, and the evidentiary depositions of the investigating officer and another chiropractor, Dr. Jim Taylor. Dr. Taylor’s deposition was read to the jury by the attorneys for the parties. The cross-examination portion was read by Ms. Casebier’s attorney, David Cahoon. Near the end of Mr. Cahoon’s reading, the following remarks were made in the presence of the jury:

MR. CAHOON: I’m going to end my cross-examination. My eyes hurt. I’ll read part of your redirect but Pm not going to read any more. That’s enough.
THE COURT: Well, are you okay?
MR. CAHOON: Well, I got a headache, that’s all. Started wearing glasses about a month ago and it’s really bothering me.
THE COURT: Maybe you need to go to the chiropractor.
MR. CAHOON: Maybe so.
THE COURT: Okay. You want to get down and read yours or you want to quit?
MR. STEELE [counsel for Mr. Nobles]: Judge, could we approach the bench?
THE COURT: Yeah.
(Thereupon the following is held at the bench out of the hearing of the jury):
MR. STEELE: I know that was an inadvertent remark, but obviously the jury laughed and, you know, I know that you didn’t mean anything by it, but, but I, it was a disparaging remark on chiropractors or at least it could have been taken that way.
THE COURT: Why, I didn’t mean that. I like chiropractors.
MR. STEELE: I know but, but the jury got a big laugh out of it and. . .
THE COURT: Do you want a mistrial?
MR. STEELE: Yes, sir.
THE COURT: Overruled.
MR. STEELE: Thank you.

After the colloquy at the bench, Mr. Steele read a page and a half of redirect testimony from the deposition. Both parties then rested their cases and agreed upon the jury instructions that were to be read to the jury. After closing arguments, the jury retired to deliberate and eventually returned with a unanimous verdict in favor of Ms. Casebier. Appeal was taken to this court by Mr. Nobles, pursuant to Ark. Sup. Ct. R. 1 — 2(a)(16). He characterizes his issue on appeal as follows:

The joke made by the court about chiropractors during the reading of the appellant’s evidentiary deposition taken from a chiropractor was an improper comment on the evidence and was error.

Mr. Nobles argues that his request for a mistrial should have been granted. A mistrial is a drastic remedy which should be resorted to only when there has been error so prejudicial that justice cannot be served by continuing the trial. Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997); Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). It is proper only when the error is beyond repair and cannot be corrected by any curative relief. Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996). The granting of a mistrial is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal absent a showing of abuse. Id.

We find no abuse of discretion in this case in the court’s denial of a mistrial, although we certainly do not condone the type of comment made by the trial judge. The comment, when examined in the full context of the record, see Harris v. State, 273 Ark. 355, 620 S.W.2d 289 (1981), cannot be said to be so prejudicial that the trial could not continue. It is also noteworthy that the appellant did not request any other form of curative relief, such as an admonition. When there is doubt as to whether the trial court abused its discretion in denying a mistrial, a failure to request an admonition will negate a mistrial motion. Weaver v. State, supra. Finally, any potential error in this case was cured by the standard cautionary instruction, AMI Civil 3d 101 (given by the court without objection by either party), which reads in part:

I have not intended by anything I have said or done, or by any questions that I may have asked, to intimate or suggest to you what you should find to be the facts, or that I believe or disbelieve any witness who has testified. If anything that I have done or said has seemed to so indicate, you will disregard it.

For the above reasons, we affirm.

Affirmed.

Newbern, and Thornton, JJ., dissent.

David Newbern, Justice,

dissenting. The majority opinion correctly states general rules concerning mistrials, but it fails to apply them as our Constitution and our case law require. Considering the timing of the Trial Court’s remark and the context in which it was made, no doubt remains that Mr. Nobles was deprived of a fair trial.

No factors make more indelible impressions on jurors than the attitudes, statements, and opinions of a trial judge. West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973). To jurors, his word is the law. Id. Due to the great influence a trial judge has on a jury, the judge should refrain from making unnecessary comments which could prejudice one of the litigants or influence the jury. Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994); Oglesby v. State, 299 Ark. 403, 773 S.W.2d 443 (1989); Divanovich v. State, 271 Ark. 104, 607 S.W.2d 383 (1980). Those have been our sentiments, just as they undoubtedly were the sentiments of the authors of Ark. Const, art. 7, § 23, which provides, in part, “Judges shall not charge juries with regard to matter of fact. . . .”

A judge should always preside with impartiality and must be cautious and circumspect in his language, leaving the jury as the sole judge of the facts and the credibility of witnesses. West v. State, supra; Fechheimer-Kiefer Co. v. Kempner, 116 Ark. 482, 179 S.W. 179 (1915). Any expression or intimation of an opinion by the judge as to questions of fact or the credibility of witnesses would tend to deprive one or more of the parties of the benefits guaranteed by the Constitution, and would be a palpable violation of the organic law of the State. Sharp v. State, 51 Ark. 147, 10 S.W. 228 (1888). See also West v. State, supra.

When considering whether a trial judge’s remarks deprive a party of a fair trial, we look to the totality of the circumstances. See Dillon v. State, supra; Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979). The only way to determine the real meaning or true import of any isolated remark is to consider the context in which it was made. Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995); Harris v. State, 273 Ark. 355, 620 S.W.2d 289 (1981).

A review of our cases shows that we have not blithely ignored the unsolicited and unfortunate remarks of judges concerning evidence being presented before juries. We have held numerous times that such a remark warrants a mistrial. For example, in Jones v. State, 166 Ark. 290, 265 S.W. 974 (1924), the Trial Court responded to defense counsel’s explanation that the witness “was just trying to facilitate matters,” by saying, “Yes, facilitate like a crawfish does, backwards.” Perhaps that, too, was an attempt at levity. In McAlister v. State, 206 Ark. 998, 178 S.W.2d 67 (1944), the trial judge said that to grant the appellant’s motion to question a witness “would be just silly.” In Fuller v. State, 217 Ark. 679 at 681, 232 S.W.2d 988 (1950), the Trial Court stated, “. . . these men here on the jury have something else to do besides listen to that.”

Mistrial was also approved in West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973), where the Trial Judge asked witnesses how much they had been paid to come up with some information, and in Divanovich v. State, 271 Ark. 104, 607 S.W.2d 383 (1980), where the Trial Judge, during a heated exchange with defense counsel, threatened counsel with incarceration, stating, “I’ll put you right down there where he is,” referring to the defendant.

In Oglesby v. State, 299 Ark. 403, 773 S.W.2d 443 (1989), the Judge, while viewing a sexually explicit movie, said, “I’m feeling ill. How much longer?” We held a mistrial should have been granted. Finally, in Jones v. State, 301 Ark. 530, 785 S.W.2d 218 (1990), we approved a mistrial where, during voir dire of the jury, the Judge told a potential juror, whose car had been burglarized, that the attorney general had said it would be against the law to shoot someone who was breaking into your car, but opined that he did not think that was the law. He then asked the jury panel how many of them would convict someone who shot another person caught breaking into their car.

Unlike most of the very serious remarks we held to warrant mistrials in the cases cited, the one we consider here was made to get a laugh from the listeners, including the jurors. Although it was thus not of the “serious” sort, it was nonetheless devastating to Mr. Nobles’ case. It was made while a chiropractor’s deposition, that of Dr. Jim Taylor, was being read into the record.

MR. CAHOON (Counsel for Ms. Casebier): I’m going to end my cross examination. My eyes hurt. I’ll read part of your redirect but I’m not going to read any more. That’s enough.
THE COURT: Well, are you okay?
MLR. CAHOON: Well, I got a headache, that’s all. Started wearing glasses about a month ago and it’s really bothering me.
THE COURT: Maybe you need to go to the chiropractor.
MR. CAHOON: Maybe so.
* * *
MR. STEELE (Counsel for Mr. Nobles): I know that was an inadvertent remark, but obviously the jury laughed and, you know, I know that you didn’t mean anything by it but, but I, it was a disparaging remark on chiropractors or at least it could’ve been taken that away.
THE COURT: Why, I didn’t mean that. I like chiropractors.
MR STEELE: I know but, but the jury got a big laugh out of it and . . .
THE COURT: Do you want a mistrial?
MR. STEELE: Yes, sir.
THE COURT: Overruled.

There was no apparent purpose for the remark other than to elicit laughter. In any event, it is undisputed that the jury laughed and that chiropractic was the butt of the joke. Even a cursory reading of the record leads to the inevitable conclusion that the jury’s laughter was at the expense of chiropractors.

There may be circumstances in which such a remark would be harmless or curable, but not here. All of the evidence concerning Mr. Nobles’ damages was presented through his chiropractor witnesses. Once that evidence was impugned, the jury’s finding in favor of Ms. Casebier was a foregone conclusion.

Ms. Casebier defended on two bases; first, that she did not cause the accident, and second, that Mr. Nobles was not injured. Mr. Nobles’ injury claim was challenged throughout the proceedings.

The attack began with Ms. Casebier’s answer denying that Mr. Nobles suffered any damages. At trial, Ms. Casebier cross-examined Mr. Nobles on the issue of damages. Mr. Nobles explained that he was not cut, scraped, or bleeding after the accident. He also admitted that he did not call an ambulance, did not know he was injured and even told Ms. Casebier that he was not injured.

Ms. Casebier’s cross examination of Dr. Evana Dion Taylor Pickett further illustrates her attempts to show the jury that Mr. Nobles was' not injured. Dr. Pickett testified that it was her understanding that Mr. Nobles began to experience pain immediately after the accident. On redirect, she explained that “immediately” could mean several hours after the accident. On recross, she once again had to explain that she wrote down “immediately.” The examination of Dr. Pickett shows how Mr. Nobles’ failure to claim injury at the time of the accident was stressed to the jury.

Ms. Casebier testified that she “just barely caught his bumper.” She told the jury that Mr. Nobles said that he was “just fine.” She also testified that Mr. Nobles told her directly after the accident that he “didn’t even feel a bump,” but “heard a hide noise.” Without doubt, this testimony was given to bolster her claim that Mr. Nobles did not suffer any injury.

Finally, jury instruction # 6 stated:

Now James Nobles claims damages from Pati Casebier and has the burden of proving each of three essential propositions:
First, that he has sustained damages;
Second, that Pati Casebier was negHgent; and
Third, that such negbgence was a proximate cause of James Nobles’ damages.
Now if you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for James Nobles; but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for Pati Casebier. (AMI 203). [Emphasis added.]

The instruction pointedly requires the jury to find, prior to reaching any conclusion as to fault, that Mr. Nobles sustained damages. All of the evidence of his damages was produced through the expert testimony of two chiropractors. The Trial Court’s remark during the presentation of the expert testimony all but ensured that the jury would not find any damages, thus, based on this instruction, the jury could not find in favor of Mr. Nobles.

The majority opinion attempts to gloss over the prejudicial nature of the remark by pointing to the fact that Mr. Nobles did not request an admonishment, and that one of the' instructions to the jury instructed them to disregard any comments from the Trial Court. The problem with this analysis is that the trial was rendered unfair the moment the Trial Court commented on the evidence and should not have continued. See Jones v. State, 301 Ark. 530, 785 S.W.2d 218 (1990). When an admonishment can not cure the prejudicial effect, there is no duty to make such a request. West v. State, supra. An admonishment could not have cured the prejudice, thus, the instruction relied upon by the majority could not be expected to do so.

Surely it is not the intent of the majority to hold that the instruction to the jury to disregard the Trial Court’s remarks concerning the evidence is sufficient to allow a judge to say anything he or she pleases and then wipe the slate clean by such an instruction. Obviously, there are lines to be drawn, and our Constitution, our cases, and our commitment to fairness require reversal in this instance.

I respectfully dissent.

Thornton, J., joins.


text:
    WOODLINE MOTOR FREIGHT, INC. v. TROUTMAN OIL COMPANY, INC. and Jerry Crosland, d/b/a Jerry’s One Stop
    96-1084
    938 S.W.2d 565
    Supreme Court of Arkansas
    Opinion delivered March 3, 1997

      Friday, Eldredge & Clark, by: James C. Baker, Jr., for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Scott M. Strauss and G. Spence Frike, and Cook, Whitaker & Associates, by: Larry Cook, for appellee Troutman Oil Co., Inc.

      Ramsay, Bridgforth, Harrelson & Starling, by: Phillip A. Raley, for appellee Jerry Crosland.
   W.H.“Dub” Arnold, Chief Justice.

The sole issue presented in this negligence case is whether the trial court erred in awarding prejudgment interest on the property damages awarded to appellees Troutman Oil Company, Inc., and Jerry Crosland, d/ b/a Jerry’s One Stop. The resolution of this issue requires us to examine and clarify the law on prejudgment interest in Arkansas. After a thorough review of the history of our jurisprudence on this subject, we hold that the trial court erred in awarding prejudgment interest where the appellees’ claims were neither liquidated nor ascertainable by fixed standards. Accordingly, we reverse and remand.

The facts in this case are undisputed. On March 11, 1992, Lattermore Belcher was driving his automobile near the intersection of Seventh and Cypress Streets in North Little Rock when he collided with a tractor-trailer driven by William Moore, an employee of appellant Woodline Motor Freight, Inc. Due to the impact of the collision, Moore lost control of his rig and crashed into a convenience store and gas station owned by Troutman Oil and leased by Crosland. The building and its contents were destroyed. Troutman and Crosland sued Belcher and Woodline for negligence. Troutman claimed $202,000.00 in property damage and $175,500.00 in lost profits, while Crosland claimed $31,426.05 in property damage and $150,000.00 in lost profits. At trial, Belcher was found to be 80 percent at fault and Woodline 20 percent at fault. The jury returned a special verdict awarding Troutman $100,000.00 for property damage and $15,000.00 for lost profits, and Crosland $31,426.05 for property damage and $24,000.00 for lost profits.

Following a hearing on the issue of prejudgment interest, the trial court entered judgment February 20, 1996, awarding prejudgment interest on the property damage at the rate of six percent per annum. As a result, Troutman was awarded an additional $23,000.00, and Crosland an additional $7,232.30. On appeal, Woodline argues that the prejudgment interest should not have been allowed because (1) the underlying case is a tort case; (2) the amount of damages was not immediately ascertainable at the time of loss; and (3) the award constitutes a double recovery.

We cannot deny that the issue of prejudgment interest has been a confusing area in our jurisprudence. See Red Lobster Inns, Etc. v. Lawyer Title Ins., 656 F.2d 381 (8th Cir. 1981). Indeed, like other courts, we have struggled with this subject over the years. In our very early cases, we followed the rule that, if the damaged or destroyed property had a market value, or other deli-nite standards of determining the value, at the time of loss, damage or destruction, prejudgment interest was allowable. Crow v. State, 23 Ark. 684 (1861); Kelly v. McDonald, 39 Ark. 387 (1882); and St. Louis I.M. & S. Ry. v. Biggs, 50 Ark. 169, 6 S.W. 724 (1887).

In 1961, we announced the rule that prejudgment interest was not allowable in tort actions. See Southern Farm Bureau Cas. Ins. Co. v. Hardin, 233 Ark. 1011, 351 S.W.2d 158 (1961). We followed that rule in Members Mutual Ins. Co. v. Blissett, 254 Ark. 211, 492 S.W.2d 429 (1973). Both Hardin and Blissett involved personal injury and property damage claims arising from automobile accidents. Flowever, in 1979, we returned to the former rule, allowing prejudgment interest for damage to “knee-high” soybeans totally destroyed by heavy rains within a 48-hour period. See Dickinson Construction Co. Inc. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979). The damage in Dozier resulted from the defendants having wrongfully dammed a drainage ditch.

In Lovell v. Marianna Federal Savings and Loan Ass’n, 267 Ark. 164, 589 S.W.2d 577, 578 (1979), we discussed the Hardin, Blissett, and Dozier cases, and determined that Dozier followed the more logical rule. We said that the test in prejudgment-interest cases is whether there is a method of determination of the value of. the property at the time of the injury, and, if such method exists, prejudgment interest should be allowed. Id. at 166. We further explained that, if the damages are not by their nature capable of exact determination, both in time and amount, prejudgment interest is not an item of recovery. Id. at 167 (emphasis added). The issue in Lovell was whether prejudgment interest should have been awarded on three certificates of deposit. Though litigation was required to determine who owned the certificates, we held that; because the certificates had an exact value on the date that Marianna Federal refused to pay them over to Lovell, prejudgment interest should have been awarded.

Since Lovell, we have emphasized the requirement that damages be capable of exact determination both in time and amount. See e.g. City of Fayetteville v. Stanberry, 305 Ark. 210, 807 S.W.2d 26 (1991); citing Hopper v. Denham, 281 Ark. 84, 90, 661 S.W.2d 379 (1983) (prejudgment interest is allowed where “a method exists for fixing an exact value on the cause of action at the time of the occurrence of the event which gives rise to the cause of action”); Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992) (“prejudgment interest is not recoverable where damages are inexact and uncertain”). However, in Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993), our most recent case on the subject, we referred back to the underlying cause of action as the basis to decide whether prejudgment interest should be awarded. In that case, Roth purchased a 1988 Volkswagen from Wheeler Motor Company. Wheeler Motor told Roth, prior to the sale, that the vehicle was new and only had a crack in the paint. Over a twenty-three month period, Roth experienced many mechanical problems with the car. There was evidence that, prior to Roth’s purchase, the car had been damaged. Roth sued Wheeler Motor for deceit, and also revoked acceptance. A jury awarded Roth $8,000.00 in damages for rightful revocation, and $10,000 in punitive damages. Wheeler Motor appealed, and Roth cross-appealed the trial court’s denial of prejudgment interest. In upholding the denial of prejudgment interest, we reasoned as follows:

The trial judge denied prejudgment interest based upon a determination that the damages were inexact and uncertain at the time of the loss. Damages were not ascertainable until the jury rendered its special verdict awarding restitution and punitive damages. The judgment was clearly tort based. We recognize that if damages cannot be ascertained at the time of the loss, prejudgment interest should not be allowed. City of Fayetteville v. Stanberry, 305 Ark. 210, 807 S.W.2d 26 (1991).
To award prejudgment interest and punitive damages would offend our historical reluctance to award prejudgment interest in tort cases because the damages were not ascertainable as to time and amount. See e.g. Members Mut. Ins. Co. v. Blissett, 254 Ark. 211, 492 S.W.2d 429 (1973); Southern Farm Bureau Casualty Ins. Co. v. Hardin, 233 Ark. 1011, 351 S.W.2d 153 (1961). We cannot say the trial court erred in denying prejudgment interest.

315 Ark. at 329. While it is true that few tort cases lend themselves to precise measures of damages, we must clarify the language in Wheeler Motor, as an award of prejudgment interest is not dependent on whether the action is in contract or tort. Prejudgment interest was properly denied in Wheeler Motor due to the inexact and uncertain nature of Roth’s damages, which were sustained over a two-year period.

After thorough consideration of our caselaw in this area, we are mindful of our language in Lovell, Stanberry, and Stein requiring damage to be capable of exact determination both in time and amount. We therefore embrace the general rule that prejudgment interest is not recoverable on claims that are neither Hquidated as a dollar sum nor ascertainable by fixed standards. See 1 Dan B. Dobbs, Dobbs Law of Remedies: Damages, Equity, Restitution § 3.6(1), at 336 (2d ed. 1993). Prejudgment interest is allowable where the amount of damages is definitely ascertainable by mathematical computation, or if the evidence furnishes data that make it possible to compute the amount without reliance on opinion or discretion. See 47 C.J.S. Interest and Usury § 21 (1982).

Applying this test, the remaining question is whether prejudgment interest was properly allowed under the circumstances presented in this case. In answering this question, a review of the testimony at trial is instructive. Gerald Hodges, Sr. of Radford Equipment Company in Little Rock prepared a bid proposal for appellee Troutman to replace the service station and convenience store. The bid, totaling $203,128.00, included separate estimates to replace the budding, the canopy over the gasoline pumps, the building mansard or fascia, the fuel equipment, and fuel work. It was Hodges’s opinion that it would not have been cost effective to repair the old building, which measured 2,500 square feet. His bid was to replace the building with a very similar building, which would measure 2,400 square feet. During cross-examination, Hodges admitted that competitive bids could vary.

Jim Davenport, Chief Building Inspector for the city of North Little Rock, inspected the damage to the service station and convenience store. On direct examination, Davenport testified that he told Troutman that the building could not be repaired and that it would have to be torn down. However, on cross examination, he stated that he never told Troutman that he had to tear down the car wash. According to Davenport, he left it up to Troutman whether to repair the car wash and fuel island canopy. However, Troutman testified that it was his understanding that the entire building would have to be torn down.

Woodline presented the testimony of Denver Fletcher of Crockett Adjustments, who retained the services of an engineer to determine what part of the building structure could be reutilized. Fletcher then met with a builder who prepared an estimate of the cost of the repairs, which amounted to $62,939.87.

In light of this testimony, it was impossible to compute the amount of Troutman’s damages without reliance on opinion or discretion. There was conflicting testimony as to whether the building needed to be completely torn down, or whether part of the structure could have been repaired. Accordingly, the estimates to repair or replace Troutman’s building varied substantially, indicating that, at the time of the loss, the amount due Troutman was neither liquidated as a dollar sum nor ascertainable by fixed standards. We must conclude therefore that the trial court erred in awarding prejudgment interest.

Turning to Crosland’s damages, Crosland testified that he and another employee made an inventory fist of the items destroyed, among which included equipment, furniture, cigarettes, beer and other merchandise. According to Crosland, he “placed a true market value, to the best of his knowledge, on every item listed.” He testified that he consulted the State Health Department to determine whether the intact beer inside the beer cooler had to be destroyed. Crosland personally assigned a figure representing the cost to each item. In light of Crosland’s rebanee on subjective opinion as to value, we cannot agree that, at the time of the loss, the amount due him was bquidated as a dollar sum or ascertainable by fixed standards.

Based upon the foregoing, we hold that the trial court erred in awarding prejudgment interest on the property damages awarded to Troutman and Crosland. Accordingly, the judgment of the trial court is reversed and remanded.


text:
    Rodney WRIGHT v. STATE of Arkansas
    CR 96-1280
    939 S.W.2d 835
    Supreme Court of Arkansas
    Opinion delivered March 3, 1997

      Michael L. Allison, for appellant.

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

The appellant was convicted of delivery of nine hundred and sixty-seven milligrams of crack cocaine, a Class Y felony. Ark. Code Ann. § 5-64-401(a)(l)(i) (Supp. 1995). He was sentenced as a habitual-offender to fifty years in prison. We note that, at the time of his sentencing, the appellant had more than twenty prior convictions for forgery and one prior conviction for burglary. Under the habitual-offender statute, he was subject to a sentence of ten years to life. Ark. Code Ann. § 5-4-501(b)(l) (Supp. 1995). The sentence imposed by the jury is within the range of punishment established by the legislature.

For his sole argument on appeal, he claims that the sentence was cruel and unusual, in violation of the Eighth Amendment to the United States Constitution. We affirm because we are unable to reach the merits of the appellant’s argument. The argument is raised for the first time on appeal. We will not address an appellant’s contention that a sentence is cruel or unusual if he did not object to the sentence at the trial level. Whitney v. State, 326 Ark 206, 930 S.W.2d 343 (1996); Williams v. State, 320 Ark. 498, 898 S.W.2d 38 (1995).

Affirmed.