author: Steele Hays, Justice.

text:
    RAZORBACK CAB OF FORT SMITH, INC. v. James M. LINGO
    90-254
    802 S.W.2d 444
    Supreme Court of Arkansas
    Opinion delivered January 22, 1991

      Jack Skinner, for appellant.

      Nolan & Caddell, by: Fred Caddell, for appellee.
   Steele Hays, Justice.

Appellee James Lingo was awarded a judgment of $3,422.09 against Razorback Cab of Fort Smith, Inc. and Joseph Vernon Johnson, for personal injuries sustained by Lingo as a result of being struck by Johnson, a cab driver for Razorback. On appeal Razorback has asserted a number of errors. We reverse for a new trial.

Shortly after midnight on February 29,1988, Joseph Johnson, driving a taxicab leased from Razorback Cab, picked up James Lingo and Gene Speakman. The two men had been drinking beer earlier at a Fort Smith tavern. Lingo and Speak-man lit cigarettes but when the other passengers objected Johnson asked them not to smoke. Lingo refused to put out his cigarette, though admittedly asked two or three times to do so. An argument developed between Lingo and Johnson and Johnson stopped the cab. Lingo and Johnson got out, arguing over whether Lingo should pay a partial fare. Lingo contends Johnson struck him unexpectedly. Johnson claims Lingo cursed him and swung first and missed. Johnson admits striking Lingo at that point.

James and Rita Lingo filed suit against Razorback and Johnson for some $420 in medical expenses and for compensatory and punitive damages. The jury rejected the claim of Rita Lingo and awarded only compensatory damages.

Over the objection of the defendants, the plaintiffs were permitted to introduce the complaint in evidence. Razorback charges the trial court with reversible error on this count and we sustain the argument. Complaints, normally phrased in the most partisan language, are in no conceivable sense evidentiary. That seems particularly true in a personal injury case, and one in which punitive damages are sought. The introduction of the complaint as an exhibit which the jury is told it should consider [AMI Civ. 3d 101 (d)] and which it may take into the jury room, strikes us as arrant error.

While the cases bespeak no hard and fast rule, pleadings, and especially complaints, are generally treated as inadmissible. Wright v. Hullett, 245 Ark. 152, 431 S.W.2d 486 (1968) (“Statement or allegation in a pleading, such as a bill in equity, or a petition of complaint ... is inadmissible in behalf of the pleader, in the action in which it is filed, against his opponent. . . .”); State Farm Mutual Insurance Co. v. Cates, 261 Ark. 129, 546 S.W.2d 423 (1977); Fumiko Matsuuchi v. Security-First National Bank of Los Angeles, 103 Cal.2d 214, 229 P.2d 376 (1951) (“Since when has an allegation in a pleading ever been regarded as evidence against an opposing party? The answer is never at all in the history of the law.”); Kroger Company v. Warren, 410 S.W.2d 194 (Tex. Civ. App. 1966); Abramsky v. Felderbaum, 194 A.2d 501 (1963); Toney v. Raines, 224 Ark. 692, 275 S.W.2d 771 (1955).

Appellees responded by noting that answers to interrogatories, requests for admissions, depositions and the like, are admissible. While that may be true, provided they are germane, it hardly touches on the issue — whether a complaint may be properly introduced in evidence to sustain the plaintiff’s case. Nor are we persuaded by the argument that the introduction of the complaint was simply to provide the jury with a clear picture of what the plaintiffs were requesting by way of relief. There are other more appropriate methods of doing that than by making the complaint a component of evidence, by virtue of which it takes on a wholly different caste.

While the remaining points are rendered moot, we will discuss them as necessary for purposes of retrial.

Razorback bases two points for reversal on the premise that there was insufficient evidence of an employment relationship between it and Johnson which would render Razorback vicariously liable. Hence, it urges, the trial court erred in denying a motion for a directed verdict and in instructing the jury.

Razorback argues that Johnson leased a taxicab from Razorback under a written agreement expressly defining Johnson’s status as a self-employed, independent contractor; Razorback paid no wages or remuneration to Johnson, rather, Johnson paid Razorback a flat $35 per day; that Johnson paid his own expenses, was free to work or not as he chose, took breaks as he chose, was free to pick up passengers or not as he chose, and was subject to no direct supervision by Razorback. In short, Razorback maintains it is a lessor of taxicabs and nothing more.

But we have held in numerous cases that whether the parties have created an independent contractor relationship hinges on the right to control and that is essentially a fact question. (See Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990); Alpha Zeta Chapter of Pi Kappa Alpha Fraternity v. Sullivan, 293 Ark. 576, 740 S.W.2d 127 (1987); Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985); Hobbs-Western Co. v. Carmichal, 192 Ark. 59, 91 S.W.2d 605 (1936).

While there were factors which would warrant a finding that Johnson was an independent contractor, there were others that supported an opposing inference, e.g., Razorback imposed a dress code on its drivers which included a ban on beards. Examining the proof in its entirety it is clear that more than one inference could be drawn and it was not improper to submit that issue to the jury. Evans v. White, supra; Rose v. Black & White Cab Co., 222 Ark. 210, 248 S.W.2d 50 (1953).

Razorback also contends that the altercation between Johnson and Lingo occurred outside the cab and any right of control it might have had ended when Johnson left the cab. But whether an employee is acting within the scope of employment for purposes of respondeat-superior is not necessarily dependent on the situs of the occurrence, but on whether the subject individual is carrying out the object and purpose of the enterprise, as opposed to acting exclusively in his own interest. Orkin-Exterminating Co. v. Wheeling Pipeline, 263 Ark. 711, 567 S.W.2d 117 (1978). The underlying purpose in this case, at least in part, was the comfort and welfare of other passengers, a purpose entirely consistent with the interests of Razorback, even though the means employed in furthering such interests were misguided.

Razorback complains that it was not permitted to show that Lingo was the likely aggressor because he admitted (in a discovery deposition) that he was aggressive when he drank, or to introduce specific instances of misdemeanor convictions for assault. Razorback concedes that evidence of a person’s character is not ordinarily admissible to prove that he acted in conformity therewith, but argues that A.R.E. Rule 404 recognizes an exception where the character of an accused is an issue in the case. However, in Brown v. Conway, 300 Ark. 567, 781 S.W.2d 12 (1989), we upheld the trial court’s exclusion of similar evidence in a civil case:

[Under A.R.E. Rule 404] ... in civil cases, the general rule is that neither party may offer evidence that the other had a trait of character which made it likely that he acted in conformity therewith on the occasion which gave rise to the lawsuit. The exceptions to the general rule which are set out in (1) and (2) above are not applicable to civil cases. Use of the words “accused” and “prosecution” means that these two exceptions should be applied only in criminal cases. Weinstein & Berger, Weinstein’s Evidence, 404-22 (1988). This is true even if the conduct in the civil case could constitute a crime, as in the case at bar. Weinstein, supra, 404-25.

We find no error in the trial court’s ruling on these points. See McClellan v. State, 264 Ark. 223, 570 S.W.2d 278 (1978); A.R.E. Rule 609.

Razorback charges that it was not allowed to impeach Lingo’s credibility by showing that he had denied under oath ever having assaulted a police officer, when in fact he had been convicted of that offense. It is not clear how this issue developed in the trial court (appellant’s brief mentions both a motion in limine and the denial of cross-examination for impeachment.) Assuming the conviction to have been punishable by imprisonment for less than a year, it would not be useable for impeachment unless it involved dishonesty or false statement. A.R.E. Rule 609. Since assaulting a police officer involves neither, Razorback has not demonstrated error on this point.

The remaining evidentiary ruling to which Razorback objects, that is, the admission of felony overdraft convictions against Johnson, was related to the claim by the Lingos that Razorback was negligent in hiring Johnson. That cause of action was discarded during the course of the trial and should not be expected to arise on retrial.

Reversed and remanded for further proceedings not inconsistent with this opinion.

       Johnson has not appealed.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Ray Harrison JONES v. STATE of Arkansas
    CR 90-191
    802 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered January 22, 1991
    [Rehearing denied February 25, 1991.]

      Jones & Tiller Law Firm, by: Marquis E. Jones, for appellant.

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

The appellant, Ray Harrison Jones, was convicted of delivery of cocaine, possession of marijuana with intent to deliver, and possession of cocaine with intent to deliver. He challenges his conviction on the ground that the trial court erroneously refused to grant a motion in limine which would have prohibited the state from introducing in evidence a paper bag containing controlled substances. He also contends the court erred in failing to suppress that evidence. We find no error and affirm.

Officer Moore worked undercover. He drove his car to a place where he was approached by a man named Frazier who inquired if he could do anything for Moore. Moore said he wanted a “quarter rock” of cocaine. Frazier said he did not have it but could take Moore to a place where it could be obtained. Frazier got in Moore’s unmarked car, and they drove to a place where Jones was sitting on a trash dumpster.

Moore tried to give Frazier money to use in the drug transaction, but Frazier said he wanted to use his own. Frazier approached Jones. Moore observed Jones handing Frazier a white paper. Frazier came back to the car and said he wanted half of the powder in the paper and Moore could have the other half. Frazier unfolded the paper and divided the powder which was later found to be cocaine. Moore paid Frazier who then got out of the car.

Moore was equipped with a body microphone. As he was driving away from the scene, he described Jones to other officers who were in vehicles nearby. The other officers drove to the scene and arrested Jones. They searched him and found on his person a $20 bill and three white folded papers containing white powder which was also later found to be cocaine. Moore returned to the scene and identified Jones as the person from whom Frazier had gotten the powder he sold to Moore.

Approximately two feet from the place where Jones had been sitting, officers found a paper bag containing 77 Baggies containing marijuana and 54 white papers containing cocaine. Counsel for Jones asserted by motion in limine and motion to suppress that the paper bag and its contents should not be admitted because, in the event a verdict were directed with respect to the allegation that Jones possessed it, its presence in evidence would prejudice the jury in deciding whether Jones possessed the items allegedly found on his person.

The motions were considered together in an omnibus hearing. The court declined to suppress the evidence and stated that the evidence to be presented by the state was sufficient to go to the jury on the question whether Jones possessed the paper bag and its contents. The court also stated that it would consider the issue again on a motion for directed verdict, but “most certainly there’s not enough here to — for me to grant a Motion in Limine.”

We agree with the trial court’s ruling. Although Jones cites cases dealing with the question of sufficiency of evidence of constructive possession, Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988); Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978); Carey v. State, 259 Ark. 510, 534 S.W.2d 230 (1976), no case is cited which supports the contention that the evidence should have been suppressed, and we are aware of no such case.

Jones also contends the search of his person exceeded that which can be made in case of .a “Terry stop.” The search was not made pursuant to a temporary detention of the sort approved in Terry v. Ohio, 392 U.S. 1 (1968). It was a search made upon arrest to obtain evidence of the commission of the suspected offense, Ark. R. Crim. P. 12.1 .(d), and was thus not limited to a “weapons frisk.” The distinction is explained in United States v. Robinson, 414 U.S. 218 (1973).

Affirmed.


author: Per Curiam.

text:
    David REAGAN v. STATE of Arkansas
    RC 90-72
    802 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered January 22, 1991

      C.W. Knauts, for appellant.

      Mary B. Stallcup, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petitioner was convicted on June 22,1990, of the offense of murder in the first degree and sentenced to forty years in the Arkansas Department of Correction. A timely notice of appeal was filed by his court appointed counsel on July 18, 1990, along with the designation of record.

After the notice of appeal was filed, petitioner informed his counsel that he was relieved of further responsibilities and on June 28, 1990, he filed a pro se motion for a new trial alleging, among other things, a conflict of interest with his counsel. Upon counsel’s petition and an order of the circuit judge, the court appointed counsel was relieved of further duties and responsibilities in this case. The petitioner’s pro se motion for a new trial was denied in December 1990. The circuit clerk tendered the transcript of the proceedings to the clerk of this court, but the transcript was not permitted to be filed by the clerk.

Pursuant to the Ark. Sup. Ct. R. 11(h):

Any motion by counsel for a defendant in a criminal case for permission to withdraw made after notice of appeal has been given shall be addressed to this Court [Arkansas Supreme Court] and is to contain a statement of the reason for the request, and shall be served upon the defendant appealing . . .

Under this rule, the petitioner’s counsel should have addressed his request for withdrawal to this court.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See Shuffield v. State, 292 Ark. 185, 729 S.W.2d 11 (1987). Here, the attorney does not admit fault on his part but instead implies that he had been discharged from his duties. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, the petitioner’s motion must be denied.

If the appellant’s attorney files a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, then the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.


author: Tom Glaze, Justice.

text:
    Larry Dean ROBERTSON v. STATE of Arkansas
    CR 90-117
    802 S.W.2d 920
    Supreme Court of Arkansas
    Opinion delivered January 22, 1991

      Haddock & Mazzanti, by: James W. Haddock and Joseph P. Mazzanti HP, and Johnson & Harrod, by: S. Reid Harrod, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This is the appellant’s second appeal. In his first, we reversed his conviction of capital murder for which he was sentenced to life imprisonment without parole. Our reversal was based upon the trial court’s refusal to rule on whether appellant was mentally competent to stand trial. Robertson v. State, 298 Ark. 131, 765 S.W.2d 936 (1989). On remand, the trial court determined the appellant was competent, and after receiving a second trial, appellant again was found guilty of capital murder and sentenced to life imprisonment without parole. In this second appeal, he advances three points for reversal, but we hold none of them have merit. In considering appellant’s arguments, we need not repeat the details of the murder committed by the appellant since those facts are sufficiently set out in our earlier decision and a further recount of the crime is unnecessary in disposing of appellant’s present arguments.

Appellant’s main argument concerns his affirmative defense asserted at trial that he was not guilty by reason of mental disease or defect. More particularly, appellant contends that there is insufficient evidence to support the jury’s finding that he was sane or had the mental capacity necessary to perform the crime.

It is well settled that appellant had the burden of establishing his affirmative defense by a preponderance of evidence. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979). On appeal from a jury verdict rejecting an insanity defense the issue is whether there is any substantial evidence to support the verdict. Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981).

Because much of the appellant’s argument relies upon the testimony given in his behalf by four experts in the psychiatric field, we note the rule that a jury is not bound to accept opinion testimony of experts as conclusive, and it is not compelled to believe their testimony any more than the testimony of other witnesses. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). In fact, we have said that, even when several competent experts concur in their opinions and no opposing expert evidence is offered, the jury is still bound to decide the issue upon its own fair judgment. Id. Testimony of expert witnesses is to be considered by the jury in the same manner as other testimony and in the light of other testimony and circumstances in the case; the jury alone determines its value and weight, and may, under the same rules governing other evidence, reject or accept all or any part thereof as they may believe it to be true or false. Id.

No useful purpose would be served by a review of all the testimony relevant to appellant’s insanity defense, other than to show that there was substantial evidence to support the jury verdict. In this respect, the state presented testimony from Dr. John Christopher Morino, a staff psychiatrist with the State Mental Hospital. Dr. Morino related that, during his meeting with and evaluation of appellant, the appellant recalled and recited in detail the events leading to his stabbing of the victim in her eyes with a pair of scissors. He said that he had a memory lapse and the next thing he remembered was that his left hand was around the victim’s throat and his right hand had a pair of scissors in it. Appellant then attempted to flee the scene. Morino opined his evaluation revealed the appellant was neither schizophrenic nor psychotic at the time he killed his victim. Further, Dr. Morino stated that the appellant’s history of substance abuse made a diagnosis of schizophrenia impossible.

Appellant offered four psychiatric experts whose testimonies conflicted with Morino’s. In sum, those experts concluded appellant was schizophrenic and could not tell right from wrong at the time he committed the crime. Through those same experts and appellant’s thorough cross-examination of Dr. Morino, appellant attacked what he perceived to be the weaknesses in Morino’s one-day evaluation and the opinion he reached from it. Such proof, of course, has a bearing on the weight to be given Dr. Morino’s testimony, but not on its substantiality. Campbell, 265 Ark. 77, 576 S.W.2d 938. Here, the jury clearly disregarded the appellant’s expert testimony and believed Morino’s. This is within the jury’s province. Thus, we reject appellant’s argument on this point.

Appellant’s second argument generally concerns whether the jury was improperly exposed to certain remarks made by the prosecutor and his other questions and testimony that dealt with what disposition would be made of appellant if appellant was found not guilty by reason of insanity. In his brief, appellant sets out four separate incidents but his first and main contention seems to focus on the prosecutor’s cross-examination of one of appellant’s psychologists, Dr. Martin. That short colloquy was as follows:

Q. I certainly hope, Doctor, that the jury thinks that if the defendant is schizophrenic, he’s not supposed to be in prison. You don’t believe that, do you?
A. I believe that when a person is schizophrenic and actively schizophrenic and in need of treatment to help control those symptoms, they need to be in as controlled a setting as necessary to effect that treatment. . .We think in terms of treatment as being from the least restrictive to the most restrictive. The least restrictive form of treatment is voluntary outpatient care. It’s the kind of care that you use, when you go to your family doctor. That’s the least restrictive form of care. The most restrictive form of care is when either there is a civil or a criminal commitment. A person is placed in an institutional setting against their will and receives care, even though they don’t voluntarily want it. That’s the most restrictive.
Q. That can’t be done in Arkansas, can it?

Actually, in reading the prosecutor’s questions, we are not sure what point he was attempting to make. Nonetheless, appellant’s counsel objected on the basis that the prosecutor misstated the law by stating the prosecutor was trying to say that “you can’t criminally commit somebody to the penitentiary.” The prosecutor responded, saying “he didn’t say that.” At that point, appellant moved for a mistrial. In denying appellant’s objection and motion, the trial judge resolved the matter by instructing the jury to disregard the disputed questions and answer and in addition admonished the jury as follows:

As I said, the jury does not have the responsibility to determine what kind of treatment is supposed to be given a person if he is mentally incompetent. That’s not put before you. What’s before the jury is the guilt or innocence of Mr. Robertson on a capital felony charge. That’s what’s before the jury.

We have held that the jury is not to be told the options available to the trial court when a defendant is found not guilty by reason of mental disease or defect. Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984). Here, the trial judge steered the state and the defense from pursuing any such line of questions by agreeing with appellant’s objection and clarifying for the jury that its duty is limited only to determining appellant’s guilt or innocence. In view of the rather ambiguous discourse between the prosecutor and Dr. Martin and the skillful manner by which the trial judge instructed the jury on its duty, we simply cannot conclude prejudicial error occurred.

The second incident appellant argues under his second point for reversal again involves the prosecutor’s cross-examination of Dr. Martin. Martin was asked to categorize the appellant as to what type of schizophrenic he would be, and he put appellant in a group that could be stable on medication, if closely monitored. The prosecutor then asked if by making this categorization Dr. Martin assumed appellant would not use drugs again, and if appellant did, would he become psychotic. Dr. Martin said that it was very likely, to which appellant objected because appellant’s future treatment was irrelevant. The trial judge ruled that this line of questioning was brought out on direct examination and that the prosecutor was permitted to ask such questions.

In considering this point, we note that appellant’s abstract of record fails to reveal either his objection or the court’s ruling. In any event, our examination of the transcript in this capital murder case reflects that Dr. Martin, on direct examination, did, indeed, testify to the appellant’s use of drugs and his probability of recurrence of psychotic symptoms. After appellant opened this line of questioning, the state certainly was allowed to respond. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988).

Appellant’s third incident involves the prosecutor’s closing remarks that the appellant was a bomb and the only way to keep him from going off was to put him in prison. Appellant failed to object to this remark, so we do not discuss it on appeal. As we have said before, even in death cases, the appellant must make an objection below to raise the issue on appeal. See Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).

Appellant’s fourth complaint deals with the prosecutor’s following remarks in his closing argument:

First, we have to assume he wasn’t on any type of drugs. . . . There are three reasons that experts have come out with that can explain psychotic behavior. One of the major reasons is substance abuse, gasoline sniffing, butane sniffing, any type of chemical like that, bug spray, which he admitted to having sniffed in prison.. . . The other reason he would be psychotic at times would be delusional disorders. A person can go out and get high on drugs, and if it alters their brain to the point they’re disabled mentally and can’t control their actions, I mean totally lack capacity, did you know they’re not guilty!?

Appellant objected stating that voluntary intoxication was not a defense and the prosecutor’s remarks misstated the law. He also said the jury was asked improperly to speculate that the appellant was on some substance.

From our review, the prosecutor’s comments seem more to favor appellant than hurt him. His remarks suggest that if appellant suffered from voluntary drug abuse that such was a valid defense to the crime he committed. Also, in reviewing the prosecutor’s remarks in full, he clearly stated that he was not arguing the appellant was high on drugs at the time of the crime. We simply fail to see how these remarks erroneously prejudiced the appellant. The appellant must demonstrate actual prejudice and this court will not reverse absent a showing of that prejudice. Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988). Because appellant has failed to show prejudice, we uphold the trial court’s rulings on appellant’s objection and motion for mistrial on this point.

Under his second point, appellant makes an additional argument. At trial appellant requested a jury instruction stating the procedure to be followed if the appellant was found not guilty by reason of mental defect or disease. In accordance with our case law, the trial judge properly denied appellant’s request. See, e.g., Love, 281 Ark. 379, 664 S.W.2d 457. The appellant now asks this court to overrule our prior holdings that the jury is not to be told the options available to the trial court when a defendant is found not guilty by mental defect or disease. We have recently declined such an invitation and do so again. Madison v. State, 287 Ark. 179, 697 S.W.2d 106 (1985).

Appellant’s final argument is that, in giving the jury instruction regarding the sentence of life without parole in this capital murder case, the trial court erred in refusing to delete the words “without parole.” In support of his contention he cites Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), for the proposition that a jury should not be instructed on matters concerning parole.

We have, of course, repeatedly held that the trial court should not attempt to explain matters concerning parole. Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988); Pruett v. State, 282 Ark. 304, 669 S.W.2d 186 (1984). Here, the trial court in no way explained parole or answered any inquiries from the jury on the subject. The Andrews case and its progeny do not stand for the proposition that a trial court cannot merely recite to the jury that capital murder is punishable by imprisonment for life without parole, nor is the jury prevented from receiving a verdict form reflecting that language. The trial court properly rejected appellant’s argument in this respect.

Pursuant to Ark. Sup. Ct. R. 11(f), we have reviewed the record and objections made below and find no reversible error.


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

text:
    STATE of Arkansas v. Ronald Ladd HENRY
    CR 90-164
    802 S.W.2d 448
    Supreme Court of Arkansas
    Opinion delivered January 22, 1991
    [Rehearing denied February 18, 1991.]

      Ron Fields, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellant.

      Johnson & Harrod, by: William E. Johnson, for appellee.

      Holt, C.J., and Dudley and Brown, JJ., would grant rehearing.

   Tom Glaze, Justice.

This case involves the state’s petition for review of a decision by the Arkansas Court of Appeals which reversed the trial court’s ruling, denying the respondent’s motion to suppress marijuana evidence obtained from an arrest and subsequent vehicular search conducted by two Game and Fish Wildlife officers and three deputy sheriffs. The appellate court, relying on Ark. Code Ann. § 12-9-108(a)(1987), and the cases of Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989), and Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989), held the contraband should have been suppressed because the officers making the arrest and conducting the search failed to meet the standards and qualifications established by the Arkansas Commission on Law Enforcement Standards and Training. We reverse the court of appeals’s decision and affirm the trial court’s ruling.

The court of appeals’s decision was not published, so we first relate those facts necessary to an understanding and disposition of the suppression issue in this review. The two Game and Fish officers involved made the initial arrest of the respondent and cited him for a hunting-out-of-season violation. Incident to the arrest, they removed from respondent’s opened-door vehicle a loaded 30-06 rifle and a camouflage jacket, which were in plain view. The jacket contained rifle shells and a bag of green substance which appeared, and later proved, to be marijuana. The wildlife officers then summoned the Ashley County Sheriff’s Department, and upon their arrival, three deputies conducted a further search of respondent’s vehicle that revealed additional marijuana. The record reflects that, at the time of respondent’s arrest, none of the five officers met the minimum employment standards established by the Arkansas Commission on Law Enforcement Standards and Training. See Regulation 1002, Minimum Standards for Employment or Appointment (1990). The state, by information, charged respondent with possession of a controlled substance with intent to deliver. Respondent entered a conditional guilty plea pursuant to A.R.Cr.P. Rule 24.3(b), after which the trial court denied his motion to suppress and sentenced him to ten years imprisonment.

Because respondent was charged with a valid charging instrument, he does not argue on appeal that the felony charge should be dismissed. See Renshaw v. State, 303 Ark. 244, 795 S.W.2d 925 (1990); Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). Instead, his contention, and the appellate court’s decision, rests upon § 12-9-108(a) which in effect provides that a person who fails to meet the minimum standards required by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a police officer and “any action taken shall be held as invalid.” In brief, the respondent argues that the officers involved in this incident did not fully comply with the Commission’s minimum standards; therefore, the officers’ seizure of respondent’s contraband was invalid under state law. Our recent decision in Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990), and the rationale upon which it is premised, requires us to reject the respondent’s argument.

In Moore, unlike the instant case, there were fully qualified officers involved in the search made subsequent to Moore’s arrest, which had been effected by unqualified officers or ones not meeting the Commission’s minimum standards. We indicated that, under § 12-9-108(a), the actions of unqualified officers did not invalidate actions taken by qualified officers or suggest that an exclusionary rule should be applied. In refusing to apply the exclusionary rule, this court’s reasoning was not limited to the mere fact that there were qualified officers involved in the search, but instead the court reasoned and held as follows:

The exclusionary rule is designed to deter unlawful police conduct. It compels respect for the Fourth Amendment by removing the incentive to disregard it. Elkins v. United States, 364 U.S. 206, 217 (1960). Here, we are not dealing with unlawful police conduct which constitutes a violation of the Fourth Amendment and, accordingly, we are not compelled by federal law to apply the rule. Still, we may apply it as a matter of state law if we deem it proper. See State v. Shepherd, 303 Ark. 447, 798 S.W.2d 45 (1990). In this case, we do not think it is fitting to apply the exclusionary rule on state grounds. The goal of the statute at issue is to compel police department administrators to check the backgrounds of those seeking to become officers, and to hire only psychologically qualified persons to serve as policemen. It is a statute which deals with standards for employment. It is not a statute which deals with police conduct. The goal of this statute and the goal of the exclusionary rule are different. Therefore, we decline to apply the exclusionary rule on state grounds. See Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990).

Consistent with our decision in Moore, we decline to read § 12-9-108(a) as requiring the application of the exclusionary rule when, as here, no police misconduct has occurred.

While the court of appeals did not reach the issue nor does the state brief it, the respondent, citing Ark. Code Ann. § 15-41-203 (1987), also contends the Game and Fish officers were not authorized by law to search vehicles. We find no merit to this argument.

Clearly, Game and Fish officers are empowered to make arrests for violation of the game and fish laws. Ark. Const, amend. 35, § 8. In making such arrests, those officers may also conduct a search of the person or property of the accused (including his vehicle) in accordance with A.R.Cr.P. Rule 12. See in particular A.R.Cr.P. Rules 12.1 and 12.4. PIere, the wildlife officers witnessed a hunting violation by the respondent, and the rifle and hunting jacket, in obvious view in respondent’s truck, were connected with the offense with which respondent was arrested and charged.

For the reasons given above, we reverse the court of appeals’s decision, thereby reinstating the trial court’s ruling denying the respondent’s motion to suppress.

Holt, C.J., Dudley and Brown, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. Ark. Code Ann. § 12-9-108(a) (1987) provides that any action taken by a police officer who fails to meet the minimum standards required by the Arkansas Commission on Law Enforcement Standards and Training “shall be held as invalid.” None of the police officers involved in this case met the minimum standards and, just as the statute mandates, I would hold their seizure of evidence was “invalid.”

The majority opinion, in circumventing the unmistakable language of the statute, cites our recent case of Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990). In that case a non-qualified officer arrested the defendant for a traffic violation. He did nothing else. All subsequent actions were taken by qualified officers. Those subsequent actions by qualified officers resulted in obtaining evidence of five felonies. The trial court admitted the evidence in the trial for those felonies. Appellant appealed and argued that the evidence gathered by the qualified officers should be excluded under the Wong Sun or “fruit of the poisonous tree” doctrine. We refused to apply the exclusionary rule to the action of the qualified officers because (1) there had not been a violation of the Fourth Amendment and (2) the statute neither states nor implies that subsequent actions taken by qualified officers should be held “invalid.”

In this case all actions were taken by non-qualified officers. There were no subsequent actions taken by qualified officers. There is no Wong Sun or “fruit of the poisonous tree” argument. The citation of Moore is wholly inapposite. The result of the inapposite citing of Moore results in the majority’s holding that a non-qualified officer’s actions are valid. That is in direct contravention of the statute. Accordingly, I dissent.

Holt, C.J., and Brown, J., join in this dissent.

       We note that the Arkansas Court of Appeals did not have the benefit of the Moore case when this case was before it for consideration and decision.


author: Donald L. Corbin, Justice.

text:
    Ken Duane KITTLER v. STATE of Arkansas
    CR 90-231
    802 S.W.2d 925
    Supreme Court of Arkansas
    Opinion delivered January 22, 1991

      Boyd A. Tackett, Jr., for appellant.

      Ron Fields, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Ken Duane Kittler, appeals a judgment convicting him of burglary and theft of property and sentencing him as an habitual offender to two consecutive forty-year sentences. Appellant makes two claims on this appeal. First, appellant contends that his counsel should have been allowed to examine the arresting officers’ personnel files and that evidence admitted during their testimonies should have been suppressed. Second, appellant contends that he should not have been sentenced pursuant to the habitual .criminal statute.. We disagree with appellant’s contentions and affirm the judgment of conviction.

Appellant’s first claim is that he should have been allowed to examine the personnel files of the officers who arrested him in order to determine their compliance with the regulations promulgated by the Commission on Law Enforcement Standards and Training as required by the Law Enforcement Officer Training and Standards Act. Appellant argues, as stated in his brief, that “the officers [sic] actions were tainted because of non-compliance with the aforementioned statute [Ark. Code Ann. § 12-9-108(a) (1987)] and therefore any evidence introduced by said officer was ‘fruits of the poison tree’ [sic].”

Appellant makes this claim, yet he does not identify the particular arresting officer or officers about whom he complains. Our review of the transcript reveals that several law enforcement officials participated in appellant’s arrest and that at least one of them, Faulkner County Deputy Sheriff Jerry Bradley, was properly qualified to make a valid arrest.

Ark. Code Ann. § 12-9-106(e)(l) (1987) provides that any law enforcement officer already serving under full-time permanent employment on December 31, 1977, is not required to meet the statutory training requirements or other qualifications required by the Arkansas Commission on Law Enforcement Standards and Training. At a pretrial hearing Deputy Bradley testified that he was indeed a certified law enforcement officer and that he was so employed prior to December 31, 1977. After considering the foregoing statutory exception and the deputy’s testimony, the trial court held Deputy Bradley to be a qualified law enforcement officer. We find no error in the trial court’s holding.

Because we conclude that Deputy Bradley was an authorized law enforcement officer who was present in his official capacity and participated in appellant’s arrest, we need not consider the qualifications of any other officers who were also present. In Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990), we held that actions taken by an unqualified officer did not invalidate actions taken by a qualified officer.

With respect to the suppression issue in appellant’s claim, we note that Moore went on to hold that the exclusionary rule should not be applied in a situation involving both qualified and unqualified officers. In declining to apply the exclusionary rule, we reasoned in Moore that:

The exclusionary rule is designed to deter unlawful police conduct. It compels respect for the Fourth Amendment by removing the incentive to disregard it. Elkins v. United States, 364 U.S. 206, 217 (1960). Here, we are not dealing with unlawful police conduct which constitutes a violation of the Fourth Amendment and, accordingly, we are not compelled by federal law to apply the rule. Still, we may apply it as a matter of state law if we deem it proper. See State v. Shepherd, 303 Ark. 447, 798 S.W.2d 45 (1990). In this case, we do not think it is fitting to apply the exclusionary rule on state grounds. The goal of the statute at issue is to compel police department administrators to check the backgrounds of those seeking to become officers, and to hire only psychologically qualified persons to serve as policemen. It is a statute which deals with standards for employment. It is not a statute which deals with police conduct. The goal of this statute and the goal of the exclusionary rule are different. Therefore, we decline to apply the exclusionary rule on state grounds. See Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990).

Moore, 303 Ark. at 517, 798 S.W.2d at 89-90.

The reasoning and result reached in Moore are applicable to this case. Accordingly, we decline to hold that any evidence obtained as a result of appellant’s arrest should be suppressed.

We think the result we reach here in declining to suppress evidence is particularly appropriate in that appellant has failed to produce a record on appeal indicating that any evidence obtained from his arrest was ever admitted at his trial. We note that it is appellant’s burden to produce a record sufficient to show that reversible error has occurred. Evans v. State, 271 Ark. 775, 610 S.W.2d 577 (1981).

Appellant calls our attention to the trial court’s ruling which denied his request to examine the arresting officers’ personnel files but then held the officers to be properly qualified. In Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990), this court stated such a ruling was erroneous. However, there was no prejudice to appellant in Moore as the officer’s lack of qualification was elicited through cross-examination. We note that here, as in Moore, there was no prejudice to appellant. In both cases, the officer’s compliance or non-compliance with the standards was established through testimony. There must be a showing of prejudice in order to find grounds for reversal of a conviction. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

Appellant’s second claim on appeal is that he should not have received an extended term of imprisonment because he was never charged pursuant to the habitual offender statute, Ark. Code Ann. § 5-4-501 (1987). While it is true that appellant’s right to due process of law requires that he receive notice prior to trial of the filing of an habitual offender charge, Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977), it is also true that a denial of any right, even a constitutional one, must be objected to at trial to be preserved for appeal. Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988). We note that appellant was indeed on notice that the state intended to proceed against him as an habitual offender. In fact, appellant argued to the trial court that the act itself was unconstitutional for other reasons which the trú 1 court rejected. An objection must be sufficiently specific to apprise the trial court as to the particular error complained of in order to preserve the right to appellate review. Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981). Appellant never made a denial of due process objection at trial and he cannot now seek review of such a denial for the first time on appeal. Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990).

Affirmed.


text:
    Clarence HILL v. STATE of Arkansas
    CR 90-192
    802 S.W.2d 144
    Supreme Court of Arkansas
    Opinion delivered January 22, 1991

      Appellant, pro se.

      Mary B. Stallcup, Att’y Gen., by: John D. Harris, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant Clarence Jerome Hill was convicted in the Circuit Court of Jackson County on March 27, 1990, of possession of cocaine, possession of marijuana, possession of drug paraphernalia, and the offense of felon in possession of a firearm. He was sentenced to four terms of six years imprisonment. The terms for marijuana possession, possession of drug paraphernalia and felon in possession of a firearm were ordered served concurrently with each other but consecutively to the term imposed for cocaine possession. Appellant’s retained attorney B. Richard Allen, who had represented him at trial, filed a timely notice of appeal in April. In July, appellant filed a pro se motion supported by affidavit seeking to be declared indigent and requesting appointment of counsel. The trial court denied the motion, and appellant brings this appeal. B. Richard Allen has also filed a motion in this court seeking to be relieved as attorney-of-record for the appellant. On November 12, 1990, this court issued a writ of certiorari to bring up the record of the hearing held in the trial court on the question of whether appellant was indigent for the purposes of appeal. The record of the hearing is now before us.

The trial court appointed an attorney to represent the appellant at the indigency hearing. After taking testimony from the appellant, the court declared that appellant was not entitled to proceed as an indigent, noting that he had an interest in real property, a monthly income from Social Security, had made bond, and had made no effort to raise money for the appeal. On appeal, the standard of review is whether the trial court abused its discretion in finding that petitioner was not indigent. Toomer v. State, 263 Ark. 595, 566 S.W.2d 393 (1978).

In Griffin v. Illinois, 351 U.S. 12 (1956), the United States Supreme Court established that an indigent defendant appealing a criminal conviction must be provided a transcript or other record of the lower court proceedings against him when such a record is necessary for an “adequate appellate review.” The court stopped short of specifying minimum standards for indigency or setting forth guidelines to aid in the determination of indigency. This court has considered indigency on a case-by-case basis, as have most other jurisdictions. Most appellate courts have held that a person need not be destitute to qualify as an indigent. See Adkins v. Du Pont Co., 335 U.S. 331 (1984); see also Temple v. Ellerthorpe, 586 F. Supp. 848 (D.R.I. 1984). The burden of establishing indigency is on the defendant claiming indigent status, and the defendant who seeks indigent status is responsible for verifying the motion to proceed as a pauper with a supporting affidavit as set out in our Rule 28. While there is no bright-line test for indigency, which is a mixed question of fact and law, some of the factors to be considered are: (1) income from employment and governmental programs such as social security and unemployment benefits; (2) money on deposit; (3) ownership of real and personal property; (4) total indebtedness and expense; (5) the number of persons dependent on the appellant for support; (6) the cost of the transcript on appeal; and (7) the likely fee of retained counsel for the appeal. See W. LaFave and J. Israel, 2 Criminal Procedure § 11.2(e) (1984). This court has also considered whether the able-bodied appellant who is educated and capable of working has made any attempt to find employment while free on bond. Toomer, 263 Ark. 595, 566 S.W.2d 393. Ablebodiness and the level of education, however, must not be given undue weight since the ability to obtain employment after conviction may be limited. See March v. Municipal Court, 102 Cal. Rptr. 597, 498 P.2d 437 (1972). Some weight may be given to whether appellant himself paid the cost of an appeal bond, but the state cannot force an appellant to choose between posting bond and being able to obtain counsel and pay the cost of an appeal. See People v. Eggers, 27 Ill. 2d 85, 188 N.E.2d 30 (1963). The ability of bystanders such as friends and family members to post bond or assist with expenses is not a factor in determining the appellant’s indigency since indigency of the appellant does not depend on the financial position of his family and friends. Bystanders have no obligation to the state. Fullan v. Commissioner of Corr. of State of N. Y., 891 F.2d 1007 (2d Cir. 1989); State v. Borgenstein, 147 N.J. Super. 234, 371 A.2d 96 (1977). An exception could be made, however, where the appellant has control or complete discretionary use of funds raised by others.

Applying the factors for determining indigency to the evidence adduced in appellant’s indigency hearing, we note the record reflects the following: (1) had tax-free income of $522.00 a month from social security; (2) he had a half-interest in real property presently valued between $5,000 and.$7,500 where he currently was residing rent-free and that the real property had been appraised in 1987 at $19,000 but had sustained damage since that time; (3) the money for the appeal bond was paid by a relative; (4) the cost of that portion of the transcript designated for appeal was $153.00, and B. Richard Allen informed the appellant that he would not lodge the record on appeal until he had been paid every penny owed to him, which was approximately $6,750.00. That amount included money owed Allen for representation at prior hearings and trials and on appeal. Counsel stated that his fee for the appeal was $2,000.00. There was no mention made of money on deposit, debts or persons dependent on appellant for support, but the affidavit filed in July 1990 pursuant to Rule 28 with the motion to proceed as an indigent indicated that appellant had $20.42 in a bank account and a daughter who received social security benefits. Appellant left blank the answer to the question of when and where he had last been employed and his most recent wages.

We find it necessary to remand this matter to the trial court again for a second evidentiary hearing and findings of fact. Testimony should be taken to reflect appellant’s last place of employment and his wages, his total indebtedness and living expenses, the support he provides for his daughter, the nature of his disability on which the security benefits are based, the amount appellant has deposited in accounts, whether the entire appeal bond was paid by someone other than the appellant, and the exact amount owed to counsel for the trial on appeal of this case only. The record of the hearing shall accompany the trial court’s findings when they are filed with this court.

Remanded.

Hays and Newbern, JJ., would aifirm;

Brown, J., would reverse.


author: Jack Holt, Jr., Chief Justice.

text:
    Raymond Dykes CLARK and Florence Elizabeth Sherman v. NATIONAL BANK OF COMMERCE of Pine Bluff and William Edward Pratt
    90-244
    802 S.W.2d 452
    Supreme Court of Arkansas
    Opinion delivered January 28, 1991

      Spencer, Spencer, Depper & Guthrie, by: Robert L. Depper, Jr.\ and Bart Mullís Law Firm, by: Bart Mullís, for appellant.

      Brockman, Norton and Taylor, by: E. W. Brockman, Jr. and Zachary Taylor, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal comes from an order of the Probate Court of Jefferson County, admitting to probate the will of Ms. Nell N. Willey upon the petition of appellees, National Bank of Commerce and William Edward Pratt. The will is being contested by appellants, Raymond Dykes Clark and Florence Elizabeth Sherman, Ms. Willey’s nephew and niece.

The appellants contend that the will should be invalidated and that the estate should pass through intestate succession as the trial court erred in finding (1) that certain language written beneath the attestation clause was not dispositive in nature and that the will was thus signed at the end, as required by Ark. Code Ann. § 28-25-103(b)(5) (1987), and (2) the will admitted tó probate was the last will of the testatrix. We find no error and affirm.

On approximately June 14, 1988, Iris Rushing, a trust operations officer employed by the National Bank of Commerce of Pine Bluff, Arkansas, was summoned by Ms. Willey to her condominium in order to discuss Ms. Willey’s wishes for drafting her last will and testament. Ms. Rushing was to relay these wishes to Ms. Willey’s attorney, Louis Ramsay. Mr. Ramsay then drafted a will from Ms. Rushing’s notes of the meeting and from a telephone conference he had with Ms. Willey, Mr. Ramsay gave two identical copies of the proposed will to Ms. Rushing to deliver to Ms. Willey, along with a memorandum indicating that the will was a “rough draft” and suggesting that Ms. Willey make any changes or clarifications she felt necessary for a final draft.

On Friday, June 17,1988, Ms. Rushing took the documents to Ms. Willey’s home where she was joined by Marilyn Ilg, a friend of Ms> Willey’s. Ms. Willey indicated that she wished to make some additions to the will and, at Ms. Willey’s direction and in the presence of Marilyn Ilg, Ms. Rushing made handwritten additions to one of the two copies, which is now considered to be the will in probate. The only addition now being challenged on appeal appears below Ms. Willey’s signature and the attestation clause to the will. Ms. Rushing testified that she wrote the clause there in order to have more room to write and that it was added before the will was executed. The clause reads as follows:

I designate my cousins Linda Pratt and Nancy Harkness to dispense with my personal things such as and including furnishings, bric-a-brac, silver, china, crystal and objects of art after bequests and their choices have been made.

Ms. Willey signed both copies which were witnessed and attested to by Ms. Rushing and Ms. Ilg. On Monday, June 20, 1988, Ms. Rushing delivered both documents to Mr. Ramsay with directions to make the additions. Before Mr. Ramsay was able to accomplish a new writing of the will, Ms. Willey died.

The will containing Ms. Willey’s additions was offered and admitted to probate, with the exception that the provision written below her signature would be disregarded and stricken, along with a handwritten bequest not at issue on this appeal. From this ruling, appellants take exception.

While we review probate cases de novo on appeal, we will not reverse the findings of the probate judge unless such findings are clearly erroneous. Magnum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990).

The appellants first claim that the language we quote, written beneath the signatures of the testatrix and the attesting witnesses, was dispositive in nature and that Ms. Willey “clearly intended to make specific bequests to Linda Pratt and Nancy Harkness . . . while empowering them to distribute any items they did not want.. . .” This being so, appellants claim the will is not signed at “the end” and thus violates Ark. Code Ann. § 28-25-103(b)(5) (1987) which, in turn, invalidates the will. This section provides as follows:

(a) The execution of a will, other than holographic, must be by the signature of the testator and of at least two (2) witnesses.
* * * *
(5) In any of the above cases, the signature must be at the end of the instrument and the act must be done in the presence of two (2) or more attesting witnesses.

We have held, and it appears to be the general rule, that non-testamentary, no«dispositive language appearing below the signature of the maker of a will, will not invalidate the instrument. See Owens v. Douglas, 121 Ark. 448, 181 S.W. 896 (1915); Musgrove v. Holt, 153 Ark. 355, 240 S.W. 1068 (1922); Weems, Adm’r v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951); 94 C.J.S. Wills, 177(3)(c) (1957).

In Owens v. Douglas, supra, we disagreed with the appellants’ contention that the will was not signed at the end because the signature did not directly follow the testamentary or dispositive clauses, but was placed at the very end of the document. We stated that “[t]here were no testamentary clauses following the signature of the testator, and it is certain that it was his intention, by his signature, to authenticate and make his own the testamentary clauses that preceded it.” 121 Ark. at 452, 181 S.W. at 899.

Likewise, in Musgrove v. Holt, supra, involving a holographic will, this court noted that there was “no testamentary disposition after the signature of Mrs. Porter” (the testatrix) and refused to invalidate the will on the basis of the appellants’ contentions that there were blank spaces between paragraphs and that the signature did not follow immediately after the dispositive clauses.

We stated in Weems, Adm’r v. Smith, supra, again involving a holographic will, that “the purpose of the statute in requiring wills to be signed at the end is to prevent fraud” and that where no fraud was indicated, the will would not be invalidated. In Weems, the last three words (“everything in it”) of a sentence beginning above the signature were written below the signature, in addition to the words, “Dear Sallie you was so sweet and good to me.” We held that the words appearing below the signature were clearly intended to complete the sentence above, and that since the writing was not dispositive, it would not affect the will one way or another.

Similarly, we agree with the trial court, here, that the language was nondispositive and there was, therefore, no violation of section 28-25-103(b)(5). The decedent instructed Linda Pratt and Nancy Harkness to “dispense” with the personal property described. This language indicates that the decedent had in mind the administration of her property, rather than the wish to make a bequest.

At most, because the clause tells Linda Pratt and Nancy Harkness to dispense with the items “after bequests and their choices have been made”, (emphasis added), the paragraph could be labeled partially ambiguous. “Their” could refer to Ms. Pratt and Ms. Harkness or “their” could refer to the legatees. However, when a will is subject to a two-fold construction, it is the duty of the court to consider the will as a whole and to reach the real purpose and intention of the testator. Angel v. Angel, 280 Ark. 21, 655 S.W.2d 373 (1983). Also, as stated in Carroll v. Robinson, Ex’r, 248 Ark. 904, 454 S.W.2d 329 (1970), when the expression a testator uses is really ambiguous and is fairly capable of two [2] constructions, only one of which would produce a legal result, it is a fair presumption that the testator meant to create a legal, rather than an illegal, interest.

Oral testimony is admissible for the purpose of showing the meaning of words when they are ambiguous (see Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977)), and the testimony at trial supports our interpretation that the clause was not dispositive.

Marilyn Ilg testified that Ms. Willey added the language in question because “she was very concerned about people going through her belongings, and she wanted to be sure it wouldn’t be like an open estate sale where just strangers would be going through her things.”

Louis Ramsay testified that he considered the language to be surplusage since most of the decedent’s property would be disposed of by bequests and that the disposition of the items in question “could be done by the executrix, but if they had wanted it in there, if she’s insisted, the next time I would have put it in.. . .”

Furthermore, as Mr. Ramsay testified, it appears that no estate assets would have remained to be dispensed with or divided since the will contained a residuary bequest section, followed by a contingent residuary bequest to the Salvation Army.

We have stated that the paramount principle in the interpretation of wills is that the intention of the testator will govern. Motes/Henes Trust v. Motes, 297 Ark. 380, 761 S.W.2d 938 (1988). Also, in the absence of fraud or deception in the execution of a will, we will avoid strict technical construction of statutory requirements in order to give effect to the testator’s mshes. Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985). See also Hanel v. Springle, Adm’r, 237 Ark. 356, 372 S.W.2d 822 (1963).

Under the circumstances, we hold that the language of the disputed provision, in addition to evidence presented at trial, reflects that the addition was not dispositive but, rather, administrative in nature. To require strict compliance with the statute would, in this instance, defeat Ms. Willey’s will and her apparent intentions with regard to the disposition of her property.

As a final point, appellants contend that the proof at trial failed to establish which copy of the will was last executed by Ms. Willey and, thus, the requirements for the admission of a will to probate under Ark. Code Ann. § 28-40-119(a) (1987) were not met.

Section 28-40-119(a) requires, among other things, that the court find that the instrument is the testator’s last will. Appellants further argue that since the order of execution cannot be determined, neither will can be probated and that each will revokes the other.

The short answer to these arguments is that the evidence presented at trial sufficiently established that the document containing Ms. Rushing’s interlineations was the last will executed and, as such, is Ms. Willey’s last will and testament.

Mr. Ramsay testified, several times, that he understood, from Ms. Rushing, that the will with the interlineations was the second and last will signed. Mr. Ramsay explainéd to the trial court, “we checked that a couple of times because that was essential to the research that we were doing about the will that would be probated. My clear understanding was that that was the second will executed; and the first will, the one that does not have the interlineations, was the first will. . . .” Mr. Ramsay stated that both he and his law partner, Dan Harrelson, checked the sequence of execution with Ms. Rushing when she delivered the will to their office.

The appellants make much of the fact that Ms. Rushing testified that she could not recall exactly which document was signed first. They claim that Mr. Ramsay’s testimony depended entirely on the credibility of Ms. Rushing, who was too unreliable. Although Ms. Rushing could not recall the order in which Ms. Willey signed the documents, she testified, “As I said before, it was her intention that the one I had written on would be her last will and testament.”

As we stated earlier, the purpose of the law relative to the execution of wills is, and should be, to protect testamentary conveyances against fraud and deception and not to impede them by technicalities. Hanel v. Springle, Adm’r, supra. We cannot say that the trial court was clearly erroneous in holding that the will was valid or in finding that Ms. Willey intended to bequeath her property by a will instrument which contained additions and interlineations she dictated to Ms. Rushing, and which was executed by the testatrix after those additions and interlineations were made.

Lastly, pending before us is the appellees’ motion to strike certain transcript excerpts from the appellants’ reply brief. These portions of the record were not initially abstracted and since an initial abstracting deficiency cannot be cured in the reply brief, the motion is granted and the reply brief is disregarded in this appeal. See Weston v. Ponder, 263 Ark. 370, 565 S.W.2d 31 (1978).

The holding of the trial court is affirmed.


text:
    DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND v. TYSON FOODS, INC.
    90-315
    801 S.W.2d 653
    Supreme Court of Arkansas
    Opinion delivered January 28, 1991
    [Rehearing denied February 25, 1991.]

      David L. Rake, for appellant.

      Bassett Law Firm, by: W.W. Bassett, Jr., and Angela M. Doss, for appellee.

      Brown, J., not participating.

   Jack Holt, Jr., Chief Justice.

This case involves the interpretation of Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976) and the issue of whether a widow’s lump sum payment upon remarriage may be applied as a weekly death payment in calculating an employer’s maximum liability under this statute.

On August 27, 1979, two employees of the appellee, Tyson Foods, Inc., Self-Insured Employer (Tyson), were killed in a motor vehicle accident during the course and scope of their employment. Both employees were survived by a wife and minor children. Tyson accepted both claims as compensable and paid all appropriate medical and funeral expenses to the survivors, as well as weekly death benefits.

Both widows subsequently remarried and received lump sum payments pursuant to Ark. Stat. Ann. § 81-1315(d) (Repl. 1976). Tyson credited the lump sum payments against its maximum statutory liability of $50,000.00 for weekly death benefits.

After a lengthy process utilizing internal Workers’ Compensation Commission procedures, during which the employees’ cases were consolidated, the case was submitted by petition for review to the Arkansas Court of Appeals by the appellant, Death and Permanent Total Disability Trust Fund (Fund), on the single issue noted above.

In a split opinion, the court of appeals held that Tyson may, in calculating its statutory maximum liability of $50,000.00, receive credit for the lump sum payments made to the living spouses upon remarriage. Death & Total Disability Trust Fund v. Tyson Foods, Inc., 32 Ark. App. 138, 798 S.W.2d 120 (1990). We disagree and reverse and remand.

Section 81-1310(c)(2) provides in pertinent part as follows:

The first Fifty Thousand Dollars ($50,000) of weekly benefits for death or permanent total disability shall be paid by the employer or his insurance carrier in the manner provided in this Act [§§ 81-1301 to-1349]. An employee or dependent of an employee who receives a total of Fifty Thousand Dollars ($50,000) in weekly benefits shall be eligible to continue to draw benefits at the rates prescribed in this Act but all such benefits in excess of Fifty Thousand Dollars ($50,000) shall be payable from the Death and Permanent Total Disability Bank Fund.

Section 81-1315(d) provides as follows:

In the event the widow remarries before full and complete payment to her of the benefits provided in Subsection (c), there shall be paid to her a lump sum equal to compensation for one hundred four (104) weeks, subject to the limitation set out in Section 10 [§ 81-1310] of this Act.

These statutes were the result of Initiated Act 4 of 1948 and Act 221 of 1973. In Arkansas Vinegar Co. v. Ashby, 294 Ark. 412, 743 S.W.2d 798 (1988), we noted that:

The first rule in interpreting a statute is to construe it just as it reads by giving the words their ordinary and usually accepted meaning. Statutes relating to the same subject should be read in a harmonious manner if possible. All statutes on the same subject are in pari materia and must be construed together and made to stand if capable of being reconciled.
Provisions of the Arkansas Workers’ Compensation Act are to be construed liberally in favor of the claimant.
(Citations omitted.)

Section 81-1310(c)(2) clearly places a maximum amount upon “weekly benefits” for death and permanent total disability for which an employer or his insurance carrier is liable; significantly, however, the section does not provide for the inclusion of any other benefits in computing the maximum amount for which the employer or his insurance carrier is liable.

In Arkansas Vinegar Co. v. Ashby, supra, we stated that the language of the provision for lump sum payment for widows on remarriage was so clear and unequivocal as to require no judicial interpretation:

The statute provides that in the event the widow remarries ‘there shall be paid to her a lump sum equal to compensation for 104 weeks.’ The statute further provides that upon the cessation of compensation to any person the remaining persons are entitled to compensation at the rate ‘which the persons would have received if they had been the only persons entitled to compensation at the time of the decedent’s death.’ The two sections are harmonious and the plain and ordinary meaning of the words is that the widow will receive a final payment in a ‘lump sum.’ There is no provision in the statute, if we are to give the words their ordinary and accepted meaning, which would lead to any conclusion except that the lump sum payment is in lieu of continuing payments to the widow. Clearly the widow is no longer entitled to receive weekly benefits. . . .

In sum, then, a dependent widow is entitled to weekly benefits until death or remarriage. Upon her remarriage, a widow’s weekly benefits terminate, and she receives a lump sum benefit equal to 104 weeks of the compensation to which she was entitled before marriage.

Accordingly, we construe the ordinary meaning of the language of the statute and conclude that the lump sum payment is not a weekly benefit. Therefore, Tyson is not entitled to credit the lump sum payment against its maximum statutory liability.

Reversed and remanded.

Brown, J., not participating.


author: Robert H. Dudley, Justice. Per Curiam. Robert L. Brown, Justice,

text:
    Ray PENNINGTON, Roger Brockington, Anthony J. Stankavich, Melba Guess, and Charles Greenfield v. CITY OF SHERWOOD
    90-249
    802 S.W.2d 456
    Supreme Court of Arkansas
    Opinion delivered January 28, 1991
    [Supplemental Opinion on Denial of Rehearing March 4, 1991.]

      Gregory Ferguson, for appellant.

      Bob Dawson, City Attorney, for appellee.

      Corbin and Brown, JJ., would grant rehearing.

   Robert H. Dudley, Justice.

The City Council of Sherwood adopted an ordinance that called for a special election to decide whether an unincorporated area should be annexed into the City. Subsequently, a majority of the voters approved the annexation. Appellants filed suit challenging the validity of the election. Their primary argument was that the ordinance’s legal description of the land to be annexed and the plat attached to the ordinance failed to “contain an accurate description of the lands to be annexed” as required by Ark. Code Ann. § 14-40-303(a)(l) (1987). The trial court refused “to apply a hypertechnical concept of ‘accuracy’ in determining whether a legal description comports with the requirements of Ark. Code Ann. § 14-40-303(a)(1) (1987),” and upheld the annexation. On appeal the appellants’ primary arguments are that the ordinance’s legal description of the area to be annexed is inaccurate and that the plat attached to the ordinance reflects boundaries that are different from those contained in the ordinance’s legal description.

Petition for Rehearing; denied.

Gregory Ferguson, for appellant.

Unfortunately, we cannot consider appellants’ argument since their abstract does not provide us with either the legal description contained in the ordinance or a copy of the plat. We will not go to the transcript for those items. For over a hundred years we have repeatedly pointed out that there is only one transcript and there are seven judges. It is impractical for all members of the court to examine the one transcript, and we will not do so. Zini v. Perciful, 289 Ark. 343, 711 S.W.2d 477 (1986). Accordingly, we are unable to reach the merits of two of the points of appeal and affirm those points under Rule 9(d) of the Rules of the Supreme Court and Court of Appeals.

We do, however, reach one point of appeal. In it, the appellants contend that under the case of Carter v. City of Sherwood, 263 Ark. 616, 566 S.W.2d 746 (1978), the schedule of proposed services for the annexed area is inadequate. There is no merit in the argument. In Carter, there was no list or schedule of proposed services. No information was provided to the voters. They would have to make their own investigation to find what services might be provided. Here, there was a schedule or list of the services to be provided.

Affirmed.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

MARCH 4, 1991

Bob Dawson, City Att’y, for appellee.

Per Curiam.

The petition for rehearing is denied.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. I respectfully dissent from the majority’s decision. Our rules clearly state that if our action under Rule 9 is unduly harsh, we may allow the appellant to reprint his brief at his own expense to conform to Rule 9(d), and we may further assess the expense for any revision of appellee’s brief against appellant. Ark. Sup. Ct. R. 9(e)(2). The result in this case is unduly harsh, and the appellant should be allowed to refile his brief as provided under Rule 9(e)(2). I would grant the petition in accordance with this.

Corbin, J., joins.


author:
David Newbern, Justice.
      Tom Glaze, Justice,

text:
    Sharon STANDRIDGE, Guardian of Pamela Lynette Standridge v. Annie Louise Thacker STANDRIDGE
    90-253
    803 S.W.2d 496
    Supreme Court of Arkansas
    Opinion delivered January 28, 1991
    [Rehearing denied March 4, 1991.]

      Young & Finley, for appellant.

      Mobley & Smith, by: William F. Smith, for appellee.
   David Newbern, Justice.

In the earlier appeal in this case this court decided that the appellee, Annie Louise Thacker Standridge, had not been legally married to Carroll Standridge. Standridge v. Standridge, 298 Ark. 494, 796 S.W.2d 12 (1989). The probate court had appointed Annie administratrix of Carroll Standridge’s estate and had approved a wrongful death claim settlement in which Annie and her son Johnny were to be beneficiaries. We assumed those decisions were influenced by the erroneous conclusion of the probate court that Annie and Carroll were married at the time of Carroll’s death. Our opinion contained this sentence: “Because a number of decisions made by the probate court may have hinged on its holding that the marriage between Annie and Carroll was valid, we must remand the case.”

Upon remand, neither party wished to offer further testimony or otherwise augment the record from the previous proceedings. The probate court determined that the only effect of our decision was invalidation of the marriage and that all other aspects of the previous probate court order remained the same due to the doctrine of res judicata because they had been once decided and not reversed on appeal.

The doctrine of res judicata prevents, by merger or bar, a second bringing of a claim which has been decided or which could have been decided in previous litigation. See Restatement (Second) of Judgments, Chapter 3., (1982); Hyde v. Quinn, 298 Ark. 569, 769 S.W.2d 24 (1989); Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985). It does not determine the issues open to redecision when a case is remanded to a trial court from an appellate court; that is governed by the doctrine of law of the case. Except to the issue of validity of the marriage, the doctrine of law of the case did not apply in the probate court on remand in this case because other questions were left open and remanded to the probate court for decision. Wilson v. Wilson, 301 Ark. 80, 781 S.W.2d 487 (1989).

The probate court’s conclusion that it was bound by its prior rulings on the issues left open by our decision on the first appeal must have been reached toward the end of the proceeding because at the outset the court gave the parties an opportunity to present further evidence. They declined to do so, both sides relying on the record of the previous proceeding. As neither side wished to present further evidence, and both were satisfied to have the case decided on the record previously developed, we will exercise our authority of de novo review in probate cases and decide all issues which can be decided. See Witt v. Rosen, 298 Ark. 187, 765 S.W.2d 956 (1989); Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).

The appellant is again Sharon Standridge on behalf of Carroll Standridge’s daughter, Pam Standridge. The questions she presents are (1) whether Annie may be a beneficiary of the wrongful death claim settlement, (2) whether Annie’s son Johnny Thacker may be a beneficiary of the wrongful death claim settlement, (3) whether Annie should be allowed to remain the administratrix of Carroll Standridge’s estate, and (4) whether the lawyers who represented Annie as Carroll’s personal representative and who settled the wrongful death claim are entitled to the contingency fee previously approved by the probate court as appropriate for the wrongful death settlement.

The judgment of the probate court is reversed. The case is remanded for implementation of this decision and to reinstate the probate court’s jurisdiction for any further orders which may be necessary with respect to Carroll Standridge’s estate.

1. Annie as beneficiary

The wrongful death action is a statutory creation. Ark. Code Ann. § 16-62-102 (1987). Subsection (d) of the statute lists the beneficiaries of the action. Included among the listed beneficiaries is “surviving spouse.” Annie’s sole claim to the proceeds of the wrongful death award is as Carroll Standridge’s surviving spouse. In view of the invalidity of Annie’s marriage to Carroll, she was not his surviving spouse, and thus she may not share in the proceeds of the settlement.

Annie argues that (a) Act 46 of 1989 validated her marriage to Carroll Standridge, (b) Sharon Standridge is precluded from contending the marriage was invalid because of laches, estoppel, and waiver, and (c) this court had no authority to promulgate Ark. R. Civ. P. 58 and Administrative Order 2. which required us to hold the marriage invalid in the earlier appeal. Although Annie seeks no relief from the judgment, she states these arguments in the form of a “cross-appeal.” We will treat them as arguments offered to sustain the result reached by the trial court in addition to the one given by the court.

a. Act 46

In proceedings before the probate court after we remanded this case, Annie urged the court to declare her marriage to Carroll Standridge valid because the general assembly had subsequently passed a law purporting to validate all marriages, otherwise valid, which were or will be declared void because they occur after rendition of a divorce decree of one of the parties but before the decree is entered in accordance with Ark. R. Civ. P. 58 and Administrative Order 2. She now contends the trial court erred by not implementing the new law.

The conclusion of our earlier opinion was: “Annie and Carroll were not married. We reverse and remand the case for proceedings consistent with this opinion.” In Fortenberry v. Frazier, 5 Ark. 200 (1843), this court stated:

Whatever was before this court, and is disposed of, is considered as finally settled. The inferior court is bound by the judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court cannot vary it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court, even where there is error apparent; or in any manner intermeddle with it further than to execute the mandate, and settle such matters as have been remanded, not adjudicated, by the Supreme Court.

We have consistently followed that rule. See Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979); Milsap v. Holland, 186 Ark. 895, 56 S.W.2d 578 (1933). The probate court had no authority on remand to consider the issue of the validity of the marriage.

(b) Laches, estoppel, and waiver

Annie claims Sharon Standridge waited too late to claim the invalidity of the marriage. Sharon claims she made the claim at the first opportunity after learning of the proposed wrongful death settlement of which she had asked to be, but had not been, notified by Annie.

This is but another attempt to relitigate the question of the validity of the marriage. As stated above, the law of the case prevents it. In addition, this is a question which could have been, but was not, raised in the prior appeal and is therefore barred. Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989); First American National Bank of Nashville, Tennessee v. Booth, 270 Ark. 702, 606 S.W.2d 780 (1980).

(c) Separation of powers

Annie’s brief on this point contains extensive argument and citations with respect to the authority of this court to promulgate procedural rules such as Rule 58 and Administrative Order 2. Her conclusion is that we had no authority to promulgate Rule 58 requiring a chancellor to set forth a divorce decree on a separate document because Ark. Code Ann. § 16-13-319 (1987), which was enacted long before the promulgation of the rule, specifically states that chancellors are not required to reduce their decisions to writing.

We could answer this argument adequately by pointing out that it too goes to the validity of the marriage and is thus controlled by law of the case. We wish to point out, however, that the argument completely ignores the inherent authority of the court to make procedural rules, State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990); Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986), as well as Ark. Code Ann. § 16-1 l-302(e) (1987), which states that old procedural laws would remain in effect “until such time as the Supreme Court prescribes rules regarding them . . . .”

2. Johnny as beneficiary

One of the categories of beneficiaries of a wrongful death claim under § 16-62-102(d) is, “persons to whom the deceased stood in loco parentis.” Annie’s minor son Johnny Thacker was living with her and Carroll Standridge at the time of Carroll’s death. We agree with Sharon Standridge’s contention that the record before us is insufficient to sustain the probate court’s conclusion that Carroll stood in loco parentis to Johnny.

There are no disputed facts with respect to the relationship between Carroll and Johnny. The probate court recited no factual conclusions on the issue but merely stated that Carroll stood in loco parentis to Johnny. If that statement was meant to be a factual conclusion, we find it was clearly erroneous. Ark. R. Civ. P. 52(a). More to the point, however, our holding is that the court erred not in finding facts but in characterizing the relationship as one in loco parentis on the basis of the facts it could reasonably have determined from the evidence. While we will not overturn the probate judge’s factual determinations unless they are clearly erroneous, we are free in a de novo review to reach a different result required by the law. Winn v. Chateau Cantrell Apartment Co., 304 Ark. 146, 801 S.W.2d 261 (1990); Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979).

The evidence on the relationship consisted of the following testimony by Annie:

Q: Would you please describe for the benefit of the court the relative situation that existed between your husband, the decedent, Mr. Carroll Wayne Standridge, and your son, his stepson, what was their relationship?
A: They was very close. He usually went to work with him, rode in the truck with him. We went hunting, fishing and swimming. Just about every day.
Q: He was with the child seven days a week?
A: Well, yeah.
Q: Who furnished the support for this child from the time you and Mr. Standridge got married until the time of his death?
A: Wayne and I.
Q: The two of you?
A: Yes.
Q: Did you receive any support from any other sources?
A: No.
Q: Now there has been some questions asked about the child’s father, Mr. Thacker. Has Mr. Thacker ever acknowledged to be the father of this child?
A: He has never said he was the father.
Q: Has he denied consistently being the father of this child?
A: Yes, he did.

[At this point counsel and the court discussed an objection to this testimony. There was no ruling, but upon resumption of the questioning, the issue of Mr. Thacker’s parenthood was not pursued.]

Q: Decree was he took one child, you took the other?
A: That’s right.
Q: Which child did he take?
A: Teresa, the daughter.
Q: He did not choose to take the boy?
A: That’s right.
Q: Has he paid any support whatsoever to you or to the boy since the decree was entered?
A: No. He bought one pair of pants, two shirts and a pair of shoes in the whole time.
Q: That’s it?
A: That’s it.
Q: The balance of the child support came from you and Mr. Standridge?
A: Yes.

Elsewhere in the record, Annie testified that Mr. Thacker had a “steady” visitation relationship with Johnny and explained that the reason he paid no support for Johnny was because in the decree of divorce between her and Mr. Thacker he agreed to support the daughter, a victim of a serious disease requiring significant medical expenditures, and she, in turn, agreed to support Johnny.

Black’s Law Dictionary (5th ed. 1979) defines “in loco parentis” as “in place of a parent; instead of a parent; charged factitiously with a parent’s rights, duties, and responsibilities.” In Moon Distributors v. White, 245 Ark. 627, 434 S.W.2d 56 (1968), we permitted a wrongful death award to a decedent’s step daughter to whom the decedent stood in loco parentis. We noted that the step daughter in question lived in the home with her step mother “as mother and daughter,” citing Dodd v. United States, 76 F. Supp. 991 (W.D. Ark. 1948), and Miller v. United States, 123 F.2d 715 (8th Cir. 1942) (reversed on other grounds), 317 U.S. 192 (1942). In obiter dictum the Dodd case opinion mentioned that the question is one of the intent of the parties. That was the holding of the court of appeals in the Miller case.

Nothing in the evidence of record indicates that Carroll Standridge had formed the intent to assume the duties and benefits of becoming Johnny’s father. We cannot hold that the fact that Johnny lived with his mother and Carroll for a little over 15 months was enough to establish such intent. We hold that Johnny Thacker is not entitled to beneficiary status in the wrongful death settlement.

3. Annie as administratrix

In view of the invalidity of the marriage between Annie and Carroll Standridge, we order that she be replaced as administratrix of his estate. The priorities among possible appointees as to administer an estate are set forth in Ark. Code Ann. § 28-48-101 (1987). Had Annie been married to Carroll Standridge, she would have fallen in the second category of priority. Absent the marriage, she falls in the fourth or last category which is, “any other qualified person.”

Pam Standridge, through her guardian Sharon Standridge, would have fallen in the third category as a person entitled to a share of the estate had she applied within 30 days of Carroll’s death; however, her application was made after 30 days from the death.

The choice of administratrix is discretionary with the court. The statutory priorities are to be followed, however, absent unusual circumstances. McEntire v. McEntire, 265 Ark. 260, 577 S.W.2d 607 (1979); Knight v. Worthen Bank & Trust Co., 233 Ark. 465, 345 S.W.2d 361 (1961). The circumstances in this case are unusual. Given the fact that Pam Standridge will be the only beneficiary of the major asset of the estate, we hold it is appropriate for her guardian, Sharon Standridge, to be appointed administratrix in place of Annie Louise Thacker Standridge, and the probate court will enter that order on remand.

4. Attorneys’ fees

Sharon Standridge argues that the lawyers who settled the wrongful death action should not be entitled to receive the contingency fee which had been approved by the probate court prior to the entry of the settlement. The court had approved a fee of 33 % of the recovery if settled before suit was filed, 40 % if suit was filed, and 50% in the event of an appeal. Sharon’s argument is that the lawyers who brought the wrongful death action violated Rule 1.7 of the Model Rules of Professional Conduct by representing conflicting interests in view of the disagreement over the entitlements of Annie, Johnny, and Pam.

In some cases it becomes inevitable that conflicts arise among beneficiaries of a wrongful death action. In view of the statutory priorities for selection of personal representative, it is likely that the personal representative will be a beneficiary who may have to share a limited recovery with others. Although counsel is hired by the personal representative, the wrongful death action is brought, in effect, on behalf of the beneficiaries. Clearly counsel owes a duty to present the claim of each beneficiary fairly and should not attempt to get a more favorable distribution for one at the expense of another.

We faced a similar issue recently in Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990), and its companion case, Jones v. Jones, 301 Ark. 367, 784 S.W.2d 161 (1990). In the Brewer case, the issue was whether beneficiaries of the wrongful death award whose interests were antagonistic to those of the personal representative were entitled to a portion of the award to pay their attorneys. We held that they were not, and that the only attorneys entitled to a fee from the proceeds of the wrongful death litigation were those representing the personal representative of the decedent.

In the Brewer case we pointed out that prior to the distribution of the wrongful death proceeds no beneficiary had complained about the distribution of the funds. We wrote, “Should the personal representative or chosen counsel fail to provide adequate representation, application can be made to the probate court to either not approve or disallow the contracts entered into by the representative.”

On behalf of Pam, Sharon Standridge unsuccessfully opposed appointment of Annie as administratrix. After the probate court approved the attorney fee contract between the estate and the lawyers pursuing the wrongful death claim in this case, Sharon Standridge sought notice of settlement negotiations, but she did not receive it. She learned that Annie and Johnny were to receive payments under the settlement proposal which were substantially larger than those intended for Pam, and at that point she objected and sought Annie’s removal as administratrix. Her contention is that the lawyers were representing conflicting interests as evidenced by the fact that Annie and Johnny were to receive more money than Pam.

The settlement presented by Annie and approved by the probate court was in the amount of $445,071.00. It was “structured” with Annie, Johnny, Pam, and the lawyers to receive immediate cash amounts and then annuities to be purchased by Annie, as administratrix, for each beneficiary as well as in payment of the attorneys’ fee.

The attorneys’ fee in question here was earned by the lawyers in pursuing the wrongful death action, and not in presenting to the probate court the manner in which recovery would be divided. We know very little about what happened in the settlement negotiations, but we are aware that the probate court decided that Pam’s share of the proceeds should be increased over that which had been proposed in the settlement. In other words, the conflict was aired, as it should have been, in the subsequent proceedings to determine distribution where Pam was represented by counsel.

Sharon Standridge’s objection was earlier than those of the objecting beneficiaries in the Jones and Brewer cases. The objection, however, was overruled because the probate court concluded that Annie was a proper personal representative. When the settlement was presented to the court, Sharon Standridge objected, and the settlement proposed by Annie was revised to increase Pam’s portion.

We find no violation of Rule 1.7. The fundamental statement of the rule is, “A lawyer shall not represent a client if the representation of that client will be directly adverse to another client. . . .’’The lawyers who brought the wrongful death action had only one client, and that was Annie as personal representative. See Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985). The fact of our later determination that Annie should have been removed because of the invalidity of the marriage and her lack of priority for appointment as administratrix under the probate code has no bearing on evaluation of the conduct of the lawyers who brought the wrongful death action with permission of the court.

We find no conflict of interest requiring alteration of the previously approved fee contract for representation in the wrongful death action.

Conclusion

This decision does not alter that portion of the probate court order of July 14, 1988, which approved a settlement of the wrongful death claim in the amount of $445,071.00. Nor does it alter the finding that the firm of Mobley and Smith is entitled to expenses and 40 % of the wrongful death recovery in accordance with the previously approved contract between Annie, as personal representative, and Mobley and Smith.

As Pam Standridge becomes the sole beneficiary of the wrongful death settlement award, the question of whether and how it may be structured for her benefit are specifically left open for determination. Pam, in the person of her guardian, will be substituted for Annie as administratrix.

Reversed and remanded for proceedings consistent with this opinion.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I concur. In the first appeal in this case, this court, in a 4-3 decision, held Annie Standridge’s marriage to Carroll Standridge to be invalid. I filed dissenting opinions setting out my strong disagreement with the majority. Standridge v. Standridge, 298 Ark. 494, 499, 769 S.W.2d 12, 15 (Glaze, J. dissenting), reh’g denied 298 Ark. 494, 501-A, 771 S.W.2d 262 (1989) (Glaze, J. dissenting). While I am still of that same view, this court is bound to recognize the majority decision as the law of the case. Thus, because I do otherwise agree with the court’s holding in this second appeal on the new or different issues, I reluctantly join even though I believe the results wrongfully and inequitably impact on Annie Standridge.


text:
    Teresa SWEAT v. STATE of Arkansas
    CR 90-230
    802 S.W.2d 458
    Supreme Court of Arkansas
    Opinion delivered January 28, 1991

      Val P. Price, for appellant.

      Ron Fields, Att’y Gen., by: Kelly K. Hill, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Teresa Sweat, appeals from a conviction of three counts of delivery of a controlled substance. On one count she was charged as principal. On the remaining two she was charged as an accomplice to her mother, Ollie Sweat. Her defense was that she was not present when the transactions occurred, and the state’s evidence was insufficient. We find the evidence was sufficient and affirm the conviction.

There was testimony from which the jury could have found that an undercover police officer and his informant went to the home of Teresa and Ollie Sweat on December 15,19 8 8, where they purchased cocaine. The officer asked for two grams, and Teresa left the room and returned with the cocaine. She handed it to him, and he gave $200 to Ollie. From this evidence, as well as evidence produced on the other two counts, the jury could easily have concluded that Teresa and Ollie were in the drug business together and that Teresa would share in the money. “Delivery” is defined at Ark. Code Ann. § 5-64-101 (f) (Supp. 1989) as “the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance ... in exchange for money, whether or not there is an agency relationship.”

An accomplice is a person who, “with the purpose of promoting or facilitating the commission of an offense ... (2) Aids, agrees to aid, or attempts to aid the other person in . . . committing it. . . .” Ark. Code Ann. § 5-2-403(a)(2) (1987). There was testimony from which it could have been concluded that on December 9, 1988, the officer and informant went to the Sweat home. While they were engaged in a transaction with Ollie to purchase two grams of cocaine, Teresa entered the room and gave them advice about buying more and getting a better price, until she realized they were already planning to purchase the quantity she had in mind. The jury could have concluded Teresa aided in the sale. She was there, encouraging the men to buy cocaine.

The evidence also showed that on December 6, 1988, the officer went to the Sweat home and told Ollie he wanted one gram of cocaine, and Ollie told Teresa to bag it up. Teresa then called Ollie from the back of the house. Ollie went to her and returned with the cocaine. The jury could have concluded that Teresa aided Ollie both on the December 6 and December 9 transactions.

We affirm if there is substantial evidence, viewed in the light more favorable to the state, in support of the conviction. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). The evidence in this case is substantial.

Affirmed.