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

text:
    Thomas C. BEYER v. STATE of Arkansas
    CR 97-1070
    962 S.W.2d 751
    Supreme Court of Arkansas
    Opinion delivered January 29, 1998

      George B. Morton, for appellant.

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

This is an appeal from the Circuit Court of Madison County, Arkansas. The appellant, Thomas C. Beyer, raises two points on appeal. First, he argues that the trial court abused its discretion by denying him counsel at trial. Specifically, Beyer notes that the trial judge (i) removed his public defender one month prior to trial, (ii) failed to sufficiently query him regarding his ability to pay for counsel, (iii) denied his motion for a continuance for the purpose of securing counsel, and (iv) required that Beyer proceed at trial without counsel over his objection.

Secondly, Beyer contends that the trial court abused its discretion by admonishing the jury to disregard any comments concerning Beyer’s self-representation at trial. We will not reach the merits of Beyer’s second point because this Court has long held that arguments not raised at trial, even constitutional arguments, will not be addressed for the first time on appeal. Travis v. State, 328 Ark. 442, 449, 944 S.W.2d 96 (1997) (citing Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997)). However, we find merit in appellant’s first point and, accordingly, reverse and remand.

On March 11, 1997, Beyer was convicted of first-degree criminal mischief and sentenced to three-and-one-half years’ imprisonment and a $2,500 fine. Several of Beyer’s neighbors reported tire damage after running over nails they claimed Beyer had placed in the road. One witness testified that he saw Beyer putting the nails in the road. Beyer was arraigned on July 9, 1996, and, based upon statements contained in his request to proceed in forma pauperis, the trial court found Beyer to be indigent and eligible for a public defender. While represented by appointed counsel, Beyer was granted three continuances, postponing the trial date to March 11, 1997. The last of these continuances was granted because Beyer’s counsel was ill.

At the pretrial hearing on February 11, 1997, the State requested that the trial court reconsider Beyer’s indigent status and eligibility for a public defender. The public defender commented that Beyer had been cooperative with him, stayed in touch with him, and that he would like to continue representing Beyer. After some inquiry regarding Beyer’s other pending litigation, his hiring of attorneys relating to those matters, and his personal employment status, the trial judge dismissed Beyer’s public defender.

A week before trial, the trial judge denied Beyer’s motion for a continuance. Beyer asserted that he needed additional time to find an attorney to represent him. Prior to voir dire on the day of trial, the trial judge noted his reasons for denying Beyer appointed counsel, including Beyer’s hiring of attorneys for other matters, a misstatement on the request to proceed informa pauperis relating to Beyer’s ownership of real property, and Beyer’s alleged payment for a transcript in a chancery proceeding. Beyer denied paying for the transcript and renewed his objection to proceeding pro se.

We now address Beyer’s first point on appeal, namely, that the trial court abused its discretion by denying Beyer counsel at trial. We also note that the issue on appeal is not whether Beyer was improperly denied court appointed counsel but whether he was improperly denied the benefit of any counsel. The Sixth Amendment to the United States Constitution, made obligatory upon the states by the Due Process Clause of the Fourteenth Amendment, guarantees an accused the right to have the assistance of counsel for his defense. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996); Philyaw v. State, 288 Ark. 237, 244, 704 S.W.2d 608 (1986) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)); and Slaughter & Scott v. State, 240 Ark. 471, 400 S.W.2d 267 (1966)).

Additionally, Article 2, Section 10, of the Arkansas Constitution provides that an accused in a criminal prosecution has the right to be heard by himself and his counsel. Philyaw, 288 Ark. at 244 (citing Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975)). Moreover, no sentence involving loss of liberty can be imposed where there has been a denial of counsel. Philyaw, 288 Ark. at 244 (citing White v. State, 277 Ark. 429, 642 S.W.2d 304 (1982)). However, this right to counsel is a personal right and may be waived at the pretrial stage or at trial. Philyaw, 288 Ark. at 244 (citing Johnson v. Zerbst, 304 U.S. 458 (1938); and Barnes, 258 Ark. 565)). See also Slaughter, 240 Ark. 471; and Childs v. State, 243 Ark. 62, 418 S.W.2d 793 (1967).

A defendant in a criminal case may invoke his right to defend himself pro se provided: (i) the request to waive right to counsel is unequivocal and timely asserted, (ii) there has been a knowing and intelligent waiver of the right to counsel, and (iii) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. Philyaw, 288 Ark. at 245 (citing Barnes, 258 Ark. 565)). Significantly, every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Philyaw, 288 Ark. at 244 (citing Franklin & Reid v. State, 251 Ark. 223, 471 S.W.2d 760 (1971)).

The determination of whether any defendant intelligently waived his right to counsel is dependent upon the particular facts and circumstances of the case. The accused must have full knowledge or adequate warning concerning his rights and a clear intent to relinquish them before a waiver can be found. Philyaw, 288 Ark. at 245 (citing Barnes v. State). The State carries the burden of demonstrating that Beyer waived his right to counsel. Beyer understood his right to counsel, and there was no clear intent to relinquish that right. Prior to voir dire, he specifically renewed his objection to proceeding pro se. In fact, neither party alleged that Beyer intended to voluntarily relinquish his right to counsel. In the absence of evidence indicating that Beyer voluntarily and intelligently waived his counsel, the State failed to meet its burden of proof. See Philyaw, 288 Ark. at 246. Therefore, this Court must consider whether Beyer’s conduct prevented the fair and orderly exposition of the issues and amounted to a forfeiture of his right to counsel.

The concept of forfeiture is intended to ensure that the right to counsel be wielded as a shield and not a sword. Where a defendant’s purpose is to delay the trial or play “cat-and-mouse” with the court, a trial court may properly find that the defendant has forfeited his right to counsel. In Brooks v. State, 36 Ark. App. 40, 819 S.W.2d 288 (1991), the appellant discharged his counsel several weeks before trial with no indication that his sole purpose was to obtain a subsequent continuance. When the appellant later requested appointment of counsel and made motion for a continuance to obtain the presence of witnesses, the Arkansas Court of Appeals held that the record was insufficient to support a finding of an intentional manipulation of the judicial process amounting to a forfeiture of the right to counsel. The instant facts are even more compelling. Beyer’s court appointed counsel was discharged by the trial court one month prior to trial. Certainly, the trial court’s act cannot be imputed to Beyer as a stall tactic.

In contrast, Murdock v. State is an example of the egregious facts that will support denying a motion for a continuance. Mur dock v. State, 18 Ark. App. 228, 712 S.W.2d 321 (1986). The defendant attempted to use a change of lawyers as a device to delay a scheduled trial. On the eve of trial, the defendant fired the attorney who had represented her since 1976 and told the court that she had retained other counsel, which turned out not to be the case. She had already had at least two continuances from the court by changing her pleas. She was familiar with the court system and aware of her right to counsel. Notably, there was no indication in the record that she was indigent, unable to retain counsel, or seeking appointed counsel. Moreover, she had been free on bail for several months and had an opportunity to obtain counsel, and her former attorney was available in court and indicated a willingness to continue as her attorney. She declined his services. The facts in the instant case are not analogous. Absent any conduct by Beyer that evidenced an intent to delay the trial, Beyer was placed in the impossible position of representing himself after his appointed counsel was removed by the trial court, one month prior to trial, and his motion for a continuance was denied.

We can consider the following factors to determine whether a continuance should have been granted to allow Beyer adequate opportunity to employ counsel: (i) whether other continuances have been requested and granted; (ii) the length of the requested delay; (iii) whether the requested delay is for legitimate reasons; (iv) whether the motion for a continuance was timely filed; (v) whether the defendant contributed to the circumstances giving rise to the request for a continuance; (vi) whether the reason for the discharge of existing counsel was solely for the purpose of obtaining a continuance; (vii) whether the request is consistent with the fair, efficient, and effective administration of justice; (viii) whether denying the continuance resulted in identifiable prejudice to the defendant’s case of a material or substantial nature; and (ix) in the case of a pro se proceeding, where a proper waiver of counsel existed, whether the accused had sufficient time to prepare for his defense. See Parker v. State, 18 Ark. App. 252, 259, 715 S.W.2d 210 (1986) (citing Thorne v. State, 269 Ark. 556, 601 S.W.2d 886 (1980)). The evidence is not convincing to support the conclusion that Beyer’s motion for a continuance was an attempt to postpone his trial date.

The crucial fact remains that the trial judge required Beyer to proceed to trial without benefit of counsel. The record fails to demonstrate that the trial judge adequately questioned Beyer about his financial ability to obtain counsel. In any event, regardless of the court’s determination of Beyer’s indigent status and eligibility for a public defender, the trial court improperly permitted Beyer to proceed unrepresented by any counsel.

In the absence of waiver or forfeiture of Beyer’s right to counsel, the trial judge’s decision to deny Beyer counsel at trial was an abuse of the trial court’s discretion. The totality of the circumstances presented by this case, coupled with the lack of a meaningful inquiry into the appellant’s eligibility for court appointed counsel, compels us to reverse the trial court and remand this cause for a new trial.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. I dissent. My reason is simple. In Hall v. State, 305 Ark. 193, 805 S.W.2d 651 (1991), the court made it clear that the burden of establishing indigency is on the defendant claiming indigent status. Nonetheless, the majority opinion here has placed that burden on the State.

In considering appellant’s indigent status, the trial court reviewed appellant’s indigency form which reflected he earned $300 per week and listed no debts. The court also found the appellant had misrepresented on the indigency form that he did not own any real property. In addition, the trial court found the appellant had conceded that he had employed counsel in two civil lawsuits and paid for a transcript in those proceedings. In short, the trial court held the appellant failed to show entitlement to indigency status and, therefore, had no right to appointed counsel.

The majority seems to confuse the right to court-appointed counsel with whether appellant was denied a right to counsel. Here, appellant had every opportunity to obtain counsel; he simply failed to act. Appellant’s court-appointed counsel was relieved of responsibility in this matter one month from trial; thus, appellant had adequate opportunity to employ an attorney, but he made no apparent effort to obtain counsel. Instead, he moved for a continuance one week prior to trial, and the trial court, finding no reason for delay, denied the motion.

In conclusion, I am aware that this court has long considered a fundamental tenet of our system of justice to be the requirement that the trial court must see that the right to counsel is carefully guarded. Murdock v. State, 291 Ark. 8, 722 S.W.2d 768 (1987). The court has also held that, if the right to counsel is waived, a voluntary and intelligent waiver must appear upon the record. Id. at 11. However, the record here tends to show the appellant has attempted to frustrate the judicial system by refusing to do anything. He offered additional evidence to prove indigency or to show he made efforts to obtain an attorney, but failed. For these reasons, I would not reverse.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    ACXIOM CORPORATION v. Timothy LEATHERS, Commissioner of Revenues, Department of Finance and Administration, State of Arkansas
    97-408
    961 S.W.2d 735
    Supreme Court of Arkansas
    Opinion delivered January 29, 1998
    [Petition for rehearing denied March 5, 1998.]

      Roy D. Smith and Shayne D. Smith, for appellant.

      Martha G. Hunt, Revenue Legal Counsel, for appellee.
   David Newbern, Justice.

This is a tax-refund case. Appellant Acxiom Corporation filed a request with the appellee Department of Finance and Administration (“Depar tment”) in September 1995 for a refund in the amount of $593,864.36, for certain sales and use taxes it had paid during the third quarter of 1988 through the fourth quarter of 1990. The Department refunded $1,192.98, for the taxes paid by Acxiom in the fourth quarter of 1990. The Department denied the remainder of Acxiom’s refund claim on the ground that the claim was barred by a statute of limitations. The Chancellor affirmed the Department’s decision and ruled that Acxiom’s refund claim was barred by Ark. Code Ann. § 26-18-306(i)(l) (Repl. 1997). We reverse the Chancellor’s ruling and hold that Acxiom’s claim was not subject to any limitations provision and was thus timely filed.

Acxiom’s tax-refund claim was based on the Arkansas Enterprise Zone Act of 1989. The 1989 Act expired on June 30, 1995, and was effectively superseded by the Arkansas Enterprise Zone Act of 1993, Ark. Code Ann. §§ 15-4-1701 to 15-4-1708 (Repl. 1994 and Supp. 1997). The 1989 Act entitled a “qualified business” to “a refund of sales and use taxes imposed by the state . . . on the purchases of the material used in the construction of a building or buildings, or any addition or improvement thereon, for housing any legitimate business enterprise, and machinery and equipment to be located in or in connection with such building.” Ark. Code Ann. § 15-4-807(a) (Repl. 1994). The 1993 Act contains a similar provision. See Ark. Code Ann. § 15-4-1704(a) (Repl. 1994 and Supp. 1997).

It is not disputed that Acxiom was certified under the Enterprise Zone program in September 1988 and is thus a “qualified business” under the statute. It also is not disputed that the taxes for which Acxiom sought an Enterprise Zone refund had been imposed on qualified purchases. The dispute below, and on appeal, concerns whether Acxiom timely filed its EZP 1000, the form on which a claim for an Enterprise Zone refund is made.

We agree with Acxiom that neither the General Assembly nor the Department has prescribed, by statute or regulation, a limitations period in which a claim for an Enterprise Zone refund must be filed. It is undisputed that the Enterprise Zone statutes and regulations themselves do not contain a limitations provision or impose any type of “due date.” Unlike other statutes that provide for tax refunds, the Enterprise Zone Act is silent on the question of when the Enterprise Zone refund claim must be filed. See, e.g., Ark. Code Ann. § 26-51-604(b) (Repl. 1997) (requiring claim for “senior citizen” property-tax refund to be filed “on or before August 15 of the year next following the year in which the homestead ad valorem property taxes used as a basis for the claim were paid”).

Given the absence of any limitations provision in the Enterprise Zone statutes and regulations, the question becomes whether some other statute of limitations applies to Enterprise Zone refund claims.

Section 26-18-306(i)(1), the law applied by the ChanceEor to bar Acxiom’s claim, is a part of the general Arkansas Tax Procedure Act. It provides as follows:

An amended return or verified claim for credit or refund of an overpayment of any state tax for which the taxpayer is required to file a return shall be filed by the taxpayer within three (3) years from the time the return was filed or two (2) years from the time the tax was paid, whichever of the periods expires the later.

There is no dispute that Acxiom filed its EZP 1000 form after the expiration of the limitations periods prescribed by § 26-18-306(i)(1). We hold, however, that § 26-18-306(i)(1), by its terms, does not supply the standard for determining whether an Enterprise Zone refund claim is timely filed. Only an “amended return” or a “verified claim for credit or refund of an overpayment of any state tax for which the taxpayer is required to file a return” is required to be filed within the periods contained in § 26-18-306(i)(l). An EZP 1000 form is included in neither of those categories.

First, as counsel for both parties agreed during oral argument, the EZP 1000 is not an “amended return.” Although the EZP 1000 form may qualify as a “return” under the Tax Procedure Act, Ark. Code Ann. § 26-18-104(11) (Repl. 1997), it is not an “amended return” because it does not literally “amend” a return previously filed by the refund claimant. Rather, the EZP 1000 is a separate and independent return by which a participant in the Enterprise Zone program asserts a claim to the refund authorized by §§ 15-4-807(a) and 15-4-1704(a). The EZP 1000 does not amend or otherwise modify any tax return previously filed by the Enterprise Zone participant.

Most of the taxes for which Acxiom sought an Enterprise Zone refund were sales taxes paid pursuant to Ark. Code Ann. §§ 26-52-501 to 26-52-520 (Repl. 1997), or vendor use taxes paid pursuant to Ark. Code Ann. §§ 26-53-101 to 26-53-139 (Repl. 1997). Under those statutes, the vendor, rather than a taxpayer such as Acxiom, files the return for sales and vendor use taxes. Thus, Acxiom could not have filed an “amended return” with respect to sales and vendor use taxes because it never filed a return on those taxes in the first instance. We recognize that Acxiom also sought an Enterprise Zone refund for consumer use taxes and that Acxiom was required to file, and did file, returns on those taxes. Thus, while it is possible for Acxiom to have filed a return “amending” a previously filed consumer use tax return, the fact remains that an EZP 1000 is not a return that could “amend” a consumer use tax return previously filed by the Enterprise Zone participant.

Second, the EZP 1000 cannot be viewed as a “verified claim for credit or refund of an overpayment of any state tax for which the taxpayer is required to file a return.” The EZP 1000 form is a claim for a tax refund, not a tax credit. And, although the EZP 1000 asserts a claim for a refund, the requested refund is not for an “overpayment of any state tax for which the taxpayer is required to file a return.” As mentioned previously, most of the refunds claimed on the EZP 1000 were for taxes for which Acxiom was not even required to file a return. No claim on the EZP 1000 requested a refund for an “overpayment” of any tax. The taxes for which Acxiom sought a refund were not taxes that it had “paid in excess of the amount required to be paid under the particular state tax law in question.” Ark. Code Ann. § 26-18-104(8) (Repl. 1997).

We must conclude that the EZP 1000 is not the type of filing to which § 26-18-306 (i)(l) applies. That statute, therefore, does not supply the standard for determining whether an EZP 1000 is timely filed. Neither the parties’ briefs or oral arguments, nor our own research, has led us to any other potentially applicable limitations provision.

Thus, given the principle that “[t]ime limitations during which a claim may be asserted exist only to the extent that they are created by statute,” Estate of Escher, 94 Misc.2d 952, 407 N.Y.S.2d 106, 109 (N.Y. Surr. 1978), aff'd sub nom., In Re Escher’s Will, 75 A.D.2d 531, 426 N.Y.S.2d 1008 (N.Y. A.D. 1 Dept. 1980), aff'd sub nom., Matter of Gross, 438 N.Y.S.2d 293, 420 N.E.2d 91 (N.Y. 1981); see People ex rel. Schick v. Marvin, 249 A.D. 293, 292 N.Y.S. 93, 98 (N.Y. A.D. 4 Dept. 1936), aff'd, 275 N.Y. 587, 11 N.E.2d 767 (N.Y. 1937); New York State Labor Rel. Bd. v. Wyckoff Hts. Hosp., 59 Misc.2d 284, 298 N.Y.S.2d 576, 582 (N.Y. Sup. Ct. 1969)(stating “the court does not have the power to introduce and enforce” a limitations period “[i]n the absence of a statutory provision”); Shewbrooks v. A.C. and S. Inc., 529 So.2d 557, 564 (Miss. 1988) (“Limitations on the time within which an action must be brought are created by statute only. They are legislative, not judicial acts.”), we hold that, under the law as it now exists, an EZP 1000 may be filed at any time. See Hauenstein v. Lynham, 100 U.S. 483, 488 (1879) (“A party entitled can sue whenever he chooses to do so, and he is clothed with all the rights of any other litigant asserting a claim where there is no statute of limitation applicable to the case.”).

As no limitations provision was applicable in the case at hand, Acxiom’s refund claim was timely filed and should not have been dismissed. We therefore reverse the Chancellor’s order and remand the case for proceedings consistent with this opinion.

Reversed and remanded.


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

text:
    UNIGARD SECURITY INSURANCE COMPANY and Employers Surplus Lines Insurance Company, Appellants v. MURPHY OIL USA, INC., Appellee v. Associated International Insurance Company, Cross-appellee v. Lloyd’s of London, Cross-appellee v. Century Indemnity Company, Cross-appellee
    96-843
    962 S.W.2d 735
    Supreme Court of Arkansas
    Opinion delivered January 29, 1998
    [Petition for rehearing denied March 5, 1998.]

      Williams & Anderson, by: Leon Holmes, for appellant Unigard Security Insurance Company.

      James, Yeatman & Carter, P.L.C., by: Daniel R. Carter, for appellant Employers Surplus Lines Insurance Company; Rogers, Towers, Bailey, Jones & Gay, by: G. Kenneth Norrie and Kurt H. Dunkle; and Christie, Pabarue, Mortensen and Young, A Professional Corporation, by: James W. Christie, of counsel.

      James E. Baine, Murphy Oil USA, Inc.; Compton, Prewett, Thomas & Hickey, by: Robert C. Compton; and Wright, Lindsey & Jennings, by: M. Samuel Jones III and Claire Shows Hancock, for appellee.

      Shackleford, Phillips, Wineland & Ratcliff, P.A., by: Teresa Wineland, for cross-appellee Associated International Insurance Company.

      Phelps Dunbar, L.L.P., by: George B. Hall, Jr.; and Bridges, Young, Matthews & Drake PLC, by: Stephen A. Matthews, for crossappellee Cheshire and Companies (styled and referred to in cross-appeal as Lloyd’s of London).

      White and Williams, by: E. Douglas Sederhold, Susan Dignam Coletsky, and Frank J. Perch III; and Griffin, Rainwater & Draper, P.A., by: Paul S. Rainwater, for cross-appellee Century Indemnity Company.

       Glaze and Corbin, JJ., not participating.

   David Newbern, Justice.

This is an insurance-coverage case. Murphy Oil USA, Inc., the appellee, filed suit in Union County against a number of its insurance carriers seeking a declaration that the carriers were obligated under certain general comprehensive liability (“CGL”) policies to indemnify Murphy Oil for a judgment for compensatory and punitive damages previously rendered against it in a federal district court in Alabama. Prior to trial in Union County, certain insurance carriers settled with Murphy Oil, and others, such as Lloyd’s of London and Century Indemnity Company (formerly California Union Insurance Company), won summary judgment and were dismissed from the case. The Union County jury returned a verdict in Murphy Oil’s favor on its indemnification claims against appellants Unigard Security Insurance Company and Employers Surplus Lines Insurance Company (“ESLIC”) but found against Murphy Oil on its indemnification claim against Associated International Insurance Company. Murphy Oil’s motion for new trial as to Associated was denied.

The Trial Court entered judgment against Unigard and ESLIC for the amount that Murphy Oil had paid, with interest, in satisfaction of the underlying Alabama judgment, less the amounts that Murphy Oil had received through settlements with other insurance carriers, plus a statutory penalty and prejudgment interest. The Trial Court ruled that Unigard and ESLIC would be “jointly and severally” liable for a total judgment of $5,997,411.96. Unigard and ESLIC now appeal from the judgment rendered against them. Murphy Oil brings a cross-appeal against Unigard and ESLIC and “contingent” cross-appeals against Associated, Century, and Lloyd’s. Associated and Century bring contingent cross-appeals against Murphy Oil.

The parties raise numerous points on appeal. One point is entirely dispositive, however, and that is the threshold question whether the policies issued by the insurance carriers cover the liability that Murphy Oil incurred in the underlying Alabama suit. We hold that none of the policies involved in this case covers Murphy Oil’s liability, and thus we reverse the judgment against Unigard and ESLIC and dismiss. We affirm on all cross-appeals. As we dispose of the case on the issue of coverage, it will be unnecessary to discuss or resolve the parties’ other arguments.

In 1961, Murphy Oil entered into a lease of an island in the Mobile River in Alabama for the purpose of operating a petroleum-storage facility on the island. The island was owned by the Blakely Corporation. During Murphy Oil’s operations on the island, petroleum products routinely spilled onto the land in connection with the cleaning and maintenance of the storage tanks and the loading of petroleum into transport vehicles.

In addition, three “major spills” of petroleum products occurred at Murphy Oil’s facility on the island in 1970, 1975, and 1982. The first of these major spills occurred on April 13, 1970, when the facility was receiving a gasoline shipment from a barge stationed at the dock. Murphy Oil personnel had overestimated the capacity of the tank into which the gasoline was being pumped, and some 8,800 to 23,000 gallons of gasoline spilled through the tank’s ventilation vents into the sandy, porous earth. The second major spill occurred on April 11, 1975. Some 22,000 to 26,000 gallons of gasoline leaked into the soil through a valve that was accidentally left open. The third major spill occurred on October 25, 1982. Some 4,600 gallons of diesel fuel seeped into the earth through a hole in the bottom of the tank, which had corroded.

Murphy Oil ceased operations on the island in 1983, and it returned possession of the island to the Blakely Corporation on September 30, 1985. Prior to the termination of the lease, Murphy Oil neither tested the island for possible contamination from the petroleum spills nor engaged in any clean-up efforts. Moreover, Murphy Oil did not inform the Blakely Corporation of the spills that had occurred during the lease term.

In October 1989, the Blakely Corporation learned that the island was in fact contaminated with petroleum products. The Blakely Corporation notified Murphy Oil, which refused to assist in the clean-up of the property and maintained that it had returned the island to the Blakely Corporation in good condition and that conditions on the island had deteriorated after Murphy Oil had vacated the premises.

The Blakely Corporation ultimately filed suit against Murphy Oil in April 1990 in the United States District Court for the Southern District of Alabama. It sought compensatory and punitive damages and alleged a number of causes of action against Murphy Oil, including ones for negligence, breach of lease, and trespass. The negligence claim alleged that Murphy Oil had “failed to use reasonable care to prevent the disposal, discharge and/or release” of the petroleum products and was thus negligent in its “use, operation and/or occupation of the leased premises.” The negligence claim was dismissed, however, under the applicable statute of limitations and was not submitted to the jury.

In its breach-of-lease claim, the Blakely Corporation alleged that Murphy Oil had breached its lease in the following respects:

(a) By constructing and operating the facilities so as to cause or allow petroleum products and other pollutants to be discharged and/or remain on the property.
(b) By failing to surrender the premises in the same condition the premises were in at the commencement of the term of the Lease.

The breach-of-lease claim was based on a provision in the lease that required Murphy Oil, at the expiration of the lease term, to “quit and surrender the premises hereby demised in as good state and condition as reasonable usage thereof will permit.”

Finally, the theory of the Blakely Corporation’s trespass claim was that Murphy Oil, by leaving contaminants in the ground after vacating the premises, had interfered with its rights in the property.

During the Alabama trial, evidence was introduced revealing the extent of the petroleum contamination of the soil and groundwater on the island. Expert testimony indicated that the cost of removing the contamination would be $3.4 million.

The Alabama jury was instructed on the breach-of-lease and trespass claims and on the prerequisites for awarding punitive damages. With respect to the breach-of-lease claim, the jury was given the following instructions:

. . . the Plaintiffs [Blakely Corporation] have sued the Defendant [Murphy Oil] for breach of contract. In order to show a breach of contract, the Plaintiffs must prove the following by a preponderance of the evidence:
First, the existence of a contract between the Plaintiffs and the Defendant. And the parties have stipulated that a lease, which is a contract, did exist between Blakely and Murphy.
Two, the Defendant’s failure to perform an obligation contained in the contract; and
Three, resulting damage to the Plaintiffs from the Defendant’s failure. Now a lease, as I said, is a contract under the law. You will be given a copy of the various leases as with all of the other evidence in this case. It is up to you, based on the evidence, to determine what Defendant’s obligations were under the leases that applied to this property and whether the Defendant fulfilled them.
The lease allows the Defendant to put the property to a reasonable use. Reasonable use is that which an ordinary reasonable business, like the defendant, would use when conducting its operations. The measure of damages for the breach of a contract is the sum that would place the injured party in the same condition as if the contract had not been breached.
In general, damages recoverable for breach of contract are those which result naturally and proximately from the breach and such as the parties should have contemplated when the contract was made.

With respect to Blakely Corporation’s claim for punitive damages, the jury was instructed that it could assess punitive damages if it found by clear and convincing evidence that Murphy Oil’s trespass on the land was “accompanied by circumstances of either fraud and malice or oppression.” The jury was further instructed on the meaning of the terms “fraud,” “malice,” and “oppression” under Alabama law.

In its answers to interrogatories, the Alabama jury found that Murphy Oil had breached its lease with the Blakely Corporation and that Murphy Oil’s “actions in breach of the lease” had caused the contamination on the island. The jury awarded $3.4 million in compensatory damages on the breach-of-lease claim. The interrogatories did not require the jury to identify, and thus the jury did not so identify, the particular obligation contained in the lease that was breached by Murphy Oil. The jury further found that Murphy Oil had committed a trespass against the Blakely Corporation but assessed no compensatory damages for the trespass. The jury determined, however, that the trespass had been accompanied by “malice, fraud, or oppression,” and, on that basis as apparently permitted by Alabama law, awarded Blakely Corporation $4.6 million in punitive damages.

The District Court later conducted a hearing on Murphy Oil’s posttrial motion to reduce or eliminate the award of punitive damages. The District Court found that the jury could have determined from the evidence that Murphy Oil had attempted to conceal the contamination from the Blakely Corporation in order to avoid responsibility for the clean-up costs. The District Court also stressed that the award of punitive damages was not related to Murphy Oil’s negligent acts in causing the contamination in the first instance but, instead, was related to its intentional decision to leave the contamination in the ground and conceal it from the Blakely Corporation. The District Court concluded that the evidence was thus sufficient to support the finding of “malice, fraud, or oppression,” but it reduced the award of punitive damages from $4.6 million to $2 million. Thus, the final judgment in the Alabama case was for $5.4 million. After an unsuccessful appeal to the United States Court of Appeals for the Eleventh Circuit, Murphy Oil satisfied the judgment, with interest, by depositing approximately $5.8 million with the District Court.

Murphy Oil then filed suit in the Union County Circuit Court against its insurance carriers seeking a declaration that the carriers were obligated under the CGL policies to indemnify Murphy Oil for the Alabama judgment. Early in the Union County proceedings, the Trial Court determined that the only insurance policies that had been “triggered” — i.e., the policies that were potentially “on the hook” for the Alabama judgment — were those in effect when the three “major spills” occurred in 1970, 1975, and 1982. Thus, the Trial Court ruled that the only policies that would potentially afford coverage were the ESLIC policy, which was in effect at the time of the 1970 spill; the Unigard policy, which was in effect at the time of the 1975 spill; and the Associated pohcy, which was in effect at the time of the 1982 spill. Lloyd’s and Century were dismissed from the case on motions for summary judgment, as the Trial Court determined that no major spill and accompanying “injury in fact” had occurred during the period of the Lloyd’s policy (1961-69) or the period of the Century policy (1984-86).

Murphy Oil asserted that it was entitled to indemnification under the policies’ various coverage clauses. The coverage clause in the Unigard policy provides in part as follows:

The company hereby agrees ... to indemnify the Assured for all sums the Assured shall be obligated to pay by reason of the liability imposed upon the Assured by law . . . for damages ... on account of. . . property damage . . . caused by or arising out of each occurrence happening anywhere in the world.
The term “Property Damage” wherever used herein shall mean loss of or direct damage to or destruction of tangible property (other than property owned by the named assured).
The term “Occurrence” wherever used herein shall mean an accident or a happening or event or a continuous or repeated exposure to conditions which unexpectedly and unintentionally results in . . . property damage . . . during the policy period.

Similarly, the ESLIC policy provides in part that ESLIC will indemnify Murphy Oil “for all sums” that Murphy Oil “shall be obligated to pay by reason of the liability imposed upon him by law ... for damages . . . because of. . . property damage” which damages “are paid as a consequence of any occurrence covered hereunder.” The ESLIC policy defines property damage as “physical injury to, or physical destruction of, tangible property, including the loss of use thereof.” Under the ESLIC policy, the term “occurrence” means “(a) an accident, or (b) an event, or continuous or repeated exposure to conditions, which results during the policy period, in . . . property damage . . . neither expected nor intended from the standpoint of the Insured.”

Finally, the coverage clause in the Associated policy provides in part that Associated will indemnify Murphy Oil

for all sums which the insured shall be legally obligated to pay as damages... on account of property damage to which this policy applies, caused by or arising out of an occurrence happening anywhere in the world. . . .
* # *
The term damages includes damages for death and for care and loss of services resulting from personal injury and damages for loss of use of property resulting from property damage.
The term “occurrence” wherever used herein shall mean an accident or happening or event or a continuous or repeated exposure to conditions which unexpectedly or unintentionally results in personal injury, property damage or advertising liability during the policy period.
The term “property damage” means injury to or destruction of tangible property including loss of use thereof or resulting therefrom.

Thus, the coverage clauses in the policies issued by Unigard, ESLIC, and Associated are essentially identical.

In connection with their motions for summary judgment and motions for directed verdict, Unigard, ESLIC, and Associated argued that their policies, as a matter of law, did not cover the liability that Murphy Oil incurred in the underlying Alabama suit because that liability did not arise from any “property damage” within the meaning of the policies. They argued that Murphy Oil’s liability for compensatory and punitive damages arose only from its breach of its lease with the Blakely Corporation and its “malicious, fraudulent, and oppressive” conduct in concealing the contamination from the Blakely Corporation. The insurance carriers asserted that liability arising from such actions simply was not covered by the policies. These motions were denied by the Trial Court.

We agree with the insurance carriers that their motions for directed verdict on the issue of coverage should have been granted. It is clear to us that, as a matter of law, no policy in this case afforded coverage for the type of liability incurred by Murphy Oil in the underlying Alabama suit.

The provisions of an insurance contract “are to be interpreted by the court in the plain and ordinary meaning of the terms and cannot be construed to contain a different meaning.” Horn v. Imperial Cas. & Indem. Co., 5 Ark. App. 277, 278-79, 636 S.W.2d 302, 303 (1982), citing Southern Farm Bureau Cas. Ins. Co. v. Williams, 260 Ark. 659, 543 S.W.2d 467 (1976). “This court has said many times that words in a contract must be given their obvious meaning.” Miller v. Dyer, 243 Ark. 981, 984, 423 S.W.2d 275, 277 (1968). Thus, when an insurance contract is unambiguous, “its construction is a question of law for the court.” Hartford Fire Ins. Co. v. Carolina Cas. Ins., 52 Ark. App. 35, 39-40, 914 S.W.2d 324, 326 (1996). See National Life & Accident Ins. Co. v. Abbott, 248 Ark. 1115, 1117, 455 S.W.2d 120, 122 (1970) (stating “when policy language is clear and unambiguous, the court should decide, as a matter of law, the construction.”); Travelers Protective Ass’n v. Sherry, 192 Ark. 753, 757, 94 S.W.2d 713, 715 (1936).

“The terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was not paid.” Southern Farm Bureau Cas. Ins. Co. v. Williams, 260 Ark. 659, 664, 543 S.W.2d 467, 470 (1976). See Hartford Fire Ins. Co. v. Carolina Cas. Ins., supra. Although we construe ambiguous provisions in favor of the insured, the issue whether a contract is ambiguous is a question of law for the court to resolve, id.; Nationwide Mut. Ins. Co. v. Worthey, 314 Ark. 185, 192, 861 S.W.2d 307, 310 (1993), and an ambiguity will be found “only when a provision is susceptible to more than one reasonable interpretation.” State Farm Fire & Casualty Co. v. Midgett, 319 Ark. 435, 438, 892 S.W.2d 469, 471 (1995)(citations omitted) (emphasis added). As Justice George Rose Smith once put it, “[a]n insurance contract is to be construed strictly against the insurer; but where the language is unambiguous, and only one reasonable interpretation is possible, it is the duty of the courts to give effect to the plain wording of the policy.” Ingram v. Life Ins. Co. of Georgia, 234 Ark. 771, 773, 354 S.W.2d 549, 550 (1962).

Under the policy provisions quoted above, Murphy Oil was entided to coverage only if it can be said that the damages awarded by the Alabama jury were “sums” that Murphy Oil became “legally obligated” to pay “as damages” “because of,” or “on account of,” “property damage” that was caused by, or arose out of, an “occurrence,” which is essentially defined as an accidental event. The coverage question thus turns on the nature or type of liability that Murphy Oil incurred in the underlying Alabama suit. If the underlying liability was for damages imposed “on account of” or “because of” accidentally caused “property damage,” then there is potential coverage under the policies. If the underlying liability was for damages imposed for some other reason, then there is no potential coverage.

We agree with the insurance carriers that the damages awarded by the Alabama jury did not represent “sums” that Murphy Oil became “legally obligated” to pay “on account of” or “because of” any “property damage.” Under the unambiguous coverage provisions, then, Murphy Oil was not entitled to indemnification from its insurance carriers.

It is obvious to us that the Alabama jury, considering the instructions it received from the District Court and its answers to the interrogatories, made the award for compensatory damages “on account of” or “because of” Murphy Oil’s breach of its lease, not on account of any property damage that resulted from Murphy Oil’s operations on the island. The basis of Murphy Oil’s liability for compensatory damages was simply its failure to honor its covenant to “quit and surrender the premises hereby demised in as good state and condition as reasonable usage thereof will permit.” Murphy Oil's liability for compensatory damages, therefore, did not arise from conduct on the part of Murphy Oil that injured or damaged any property. The case would arguably be different, of course, had the jury based its award of compensatory damages on the negligence claim originally brought by the Blakely Corporation. As mentioned, however, that claim was dismissed under the statute of limitations and never reached the jury.

According to the dissenting opinion, Murphy Oil’s discharge of petroleum onto the property constituted “one basis” for the jury’s award of compensatory damages on the breach-of-lease claim. Having noted the instruction given by the District Court on the concept of “reasonable use,” the dissent goes on to suggest that the damages assessed for the breach of the lease were based on Murphy Oil’s “damage to the land” or its “failure to put the property to a reasonable use.” Based on that analysis, the dissent concludes that the jury’s award for compensatory damages was, in essence, an award based on “property damage” within the meaning of the policies’ coverage provisions.

A careful reading of the leases that were submitted to the jury and the jury instructions given by the District Court reveals the flaws in the dissent’s reasoning.

Considering the terms of the lease, the jury could not have found a breach, and thus could not have assessed compensatory damages, based solely on a petroleum spill or any other potentially “unreasonable use.” The obligation incurred by Murphy Oil in the lease was not “to put the property to a reasonable use,” as the dissent seems to suggest. Rather, Murphy Oil covenanted to surrender, at the conclusion of the lease term, the premises to the Blakely Corporation in as good a state and condition — as permitted by “reasonable usage” of the premises — as the premises were in at the beginning of the lease term. Thus, the “reasonable use” language cited by the dissent did not impose on Murphy Oil a separate obligation that the jury could have found to have been breached. This language merely guided the jury in evaluating the condition of the property at the conclusion of the lease term.

Certainly, the jury instruction mentioned by the dissent could not have permitted the jury to assess compensatory damages for a breach of the lease based solely on a “failure to put the property to a reasonable use.” The instructions, which, as abstracted, are quoted above, merely defined the concept of “reasonable use” and informed the jury that the lease permitted Murphy Oil “to put the property to a reasonable use.” Again, this instruction guided the jury in determining whether Murphy Oil had surrendered the premises in as good a state and condition as the premises had been in at the beginning of the lease term. The jury would have been permitted by this instruction to find in Murphy Oil’s favor on that issue if it determined that the less-than-perfect condition of the property at the conclusion of the lease term was attributable to “reasonable use.” The instruction did not, however, permit the jury to find a breach of the lease, and to award compensatory damages, based only on “unreasonable use” of the property.

The record thus clearly establishes that the Alabama jury’s award for compensatory damages was based on a finding that Murphy Oil failed to restore the leased premises to the condition that they were in at the beginning of the lease term. This was the only “breach” that the Alabama jury could have found in light of the provisions of the lease agreement and the instructions given by the District Court. Only by revising what actually occurred in the Alabama trial can one conclude, as the dissent does, that the jury found a breach of the lease based solely on Murphy Oil's “discharge of petroleum,” its “damage to the land,” or any other “failure to put the property to a reasonable use.” Thus, the dissent’s attempt to classify the jury’s award of compensatory damages as one made “because of” or “on account of” “property damage” is unavailing.

In any event, regardless of the particular act or omission found by the jury to have constituted a breach of the lease, we stress that the Alabama jury was instructed that any award of damages it made on the breach-of-lease claim would constitute “damages for breach of a contract” and that such an award should reflect “the sum that would place the injured party in the same condition as if the contract had not been breached.” The jury awarded $3.4 million in compensatory damages on the breach-of-lease claim after hearing expert testimony to the effect that the contamination could be removed from the island for that amount. In light of the instructions given to the jury by the District Court, the award of $3.4 million constitutes “contract damages,” rather than damages awarded “because of property damage,” as it is the amount that was necessary to place the Blakely Corporation in the position it would have occupied had Murphy Oil honored its obligations under the lease agreement. The unambiguous policies issued by the insurance carriers simply afford no coverage for contract damages.

Likewise, the punitive damages imposed by the Alabama jury were not “sums” that Murphy Oil became legally obligated to pay on account of, or because of, any accidentally caused property damage. The record from the Alabama trial leaves no doubt that the punitive damages were awarded solely on account of Murphy Oil’s intentional conduct, labeled “malicious, fraudulent, or oppressive” by the Alabama jury, in failing to remove the contaminants from the island before vacating the premises and in concealing the contamination from the Blakely Corporation. Again, “property damage” was not the basis of Murphy Oh’s liability for punitive damages; thus, there is no coverage for that aspect of Murphy Oil’s liability under the policies at issue in this case.

We have uncovered no case with facts exactly like those now before us. In Braswell v. Faircloth, 387 S.E.2d 707 (S.C. App. 1989), a chemical spill much like the spills in this case was held to be an “occurrence” resulting in “property damage” as described in a policy like those at issue here. The insurer was held to be liable to indemnify the lessee of the land for damages assessed against the lessor-owner by environmental agencies. The lessor had prevailed against the lessee in a breach-of-lease action. There is a glaring distinction between the Braswell case and this one. Here we have a claim for indemnity for damages assessed in a federal court proceeding in which it was held that, because the statute of limitations had run, the lessee was not liable for its negligence resulting in the “accidents” or “occurrences” which, in turn, resulted in “property damage.” Rather, the lessee, Murphy Oil, was liable for breach of the lease contract, an event not covered by the policies. Moreover, the Braswell case did not expressly consider the question now before us — that is, whether damages awarded for breach of lease qualify as damages awarded “because of” or “on account of” “property damage.” Rather, it held that the spill of the chemicals on the lessor’s land was the “occurrence” that qualified for coverage under the insurance policy. No doubt there was an “occurrence” in this case too, but Murphy Oil was absolved of liability for it due to the running of the statute of limitations. Surely the insurers cannot be held liable for events for which their insured is not liable.

We find a better analogy between this case and others in which courts have denied coverage under similar language in CGL policies where the insured was held hable in the underlying suit on theories of fraud or misrepresentation.

In Safeco Ins. Co. of America v. Andrews, 915 F.2d 500 (9th Cir. 1990), the seller of certain real property, Mr. Andrews, was sued by the buyer, Ms. Kuehl, for negligent failure to inspect the property, misrepresentation, breach of contract, and rescission of contract. Mr. Andrews tendered his defense to his insurance carrier, and the carrier sought a declaration that it had no duty to defend. The United States Court of Appeals for the Ninth Circuit held in favor of the insurance carrier and said that the claims for misrepresentation and failure to inspect

do not expose Andrews to liability for any damage to tangible property, but rather for economic loss resulting from Andrews’s alleged failure to discover and disclose facts relevant to the property’s value and desirability. Such harm is outside the scope of the policy. Although the defective condition of the property is an element of Kuehl’s claims, the defects cannot, even when interpreting the policy broadly, be considered the cause of Kuehl’s damages.

Id. at 502 (citations omitted).

Here, as in the Safeco case, “property damage” was, in an abstract sense, an “element” of the claim for which the insured was ultimately held liable in the underlying case. That fact does not, however, mean that the liability imposed on Murphy Oil by the Alabama jury was “on account of” or “because of” property damage. That the facts in the underlying case involved “property damage” “does not change the nature of the claim” that was asserted by the Blakely Corporation, which was a breach-of-lease claim, “[n]or does it change the risks the policy insured against.” Qualman v. Bruckmoser, 471 N.W.2d 282, 285 (Wis.App. 1991). The liability incurred by Murphy Oil in the underlying Alabama suit represented the “economic loss” that the Blakely Corporation suffered on account of Murphy Oil’s breach, and such losses simply are not covered by the language of the policies Murphy Oil purchased from its insurance carriers. See abo Allstate Ins. Co. v. Miller, 743 F. Supp. 723, 726 (N.D. Cal. 1990) (stating “economic or contractual losses” are “outside the meaning of ‘property damages’ under the policy”); SCA Disposal Servs. of New England, Inc. v. Central Nat’l Ins. Co., 2 Mass.L.Rptr. 44 (1994 WL 879689) (Mass.Super., April 12, 1994) (“Losses caused by the insured’s alleged negligent misrepresentation or breach of lease are not ‘damages because of . . . property damage caused by an occurrence’ covered by a liability policy.”) (citations omitted).

In the cases discussed above, the insureds would not have incurred liability “but for” certain “property damage.” Nonetheless, the courts rejected the insureds’ assertions that coverage was available. Even though the insureds in those cases may not have been charged with causing the property damage that was at issue (as Murphy Oil was in the instant case), those cases support our rejection of Murphy Oil’s broad contention that coverage is available to an insured under a CGL policy as long as “property damage” is merely lurking somewhere in the underlying case. We reiterate that, whether or not Murphy Oil caused property damage, it sought indemnification for damages that were assessed against it for breach of its lease. Neither those damages nor the punitive damages assessed for trespass fall within the coverage provisions of any of the insurance policies under consideration.

In summary, we take the following action on the direct appeal and cross-appeals raised by the parties. In light of our holding that the CGL policies issued by Unigard and ESLIC afford no coverage to Murphy Oil as a matter of law, we reverse the judgment against Unigard and ESLIC and dismiss. Murphy Oil’s cross-appeal against Unigard and ESLIC, which concerns the Trial Court’s calculation of prejudgment interest, is therefore moot.

We also affirm on Murphy Oil’s contingent cross-appeal against Associated. That cross-appeal is from the Trial Court’s order denying Murphy Oil’s motion for new trial, which in turn was premised on evidentiary rulings that Murphy Oil believed to be erroneous. Even if we believed the denial of the new-trial motion was error, which we do not, we would not reverse in light of our holding that Associated’s policy, as a matter of law, does not cover Murphy Oil’s liability. As we affirm on Murphy Oil’s contingent cross-appeal against Associated, the contingent cross-appeal brought by Associated against Murphy Oil is moot.

Finally, we affirm the contingent cross-appeals taken by Murphy Oh against Century and Lloyd’s. Murphy Oil asserts that the order granting summary judgment to Century and Lloyd’s should be vacated in the event we rule in favor of the other insurance carriers. We disagree. Century and Lloyd’s were granted summary judgment on the basis of the Trial Court’s ruling that the only policies “triggered” in this case were those in effect during the years that the three “major spills” occurred. The only way that Century and Lloyd’s could be brought back into the case is if the Trial Court’s ruling on the “trigger” issue were reversed. As no party has challenged the Trial Court’s trigger ruling, we are in no position to reverse it. Even if we could do so, however, the fact remains that Murphy Oil’s liability in the underlying Alabama suit was not for “property damage” caused by any “occurrence” that happened during the period that the Century and Lloyd’s policies were in effect. That is an additional reason for affirming on Murphy Oil’s contingent cross-appeals as to Century and Lloyd’s. As we affirm on Murphy Oil’s contingent cross-appeal against Century, the contingent cross-appeal brought by Century against Murphy Oil is moot.

Reversed and dismissed.

Special Justices Odell Pollard and Keith Rutledge join in this opinion.

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

Glaze and Corbin, JJ., not participating.

Robert L. Brown, Justice,

concurring in part; dissenting in part. I agree that the punitive-damage award of $2 million must be reversed and dismissed for the reasons stated in the majority opinion. To conclude, however, that the breach-of-lease award by the Alabama jury in the amount of $3.4 million was not due to property damage caused by two petroleum spills and, thus, was not covered by the ESLIC and Unigard policies is logically unsound and does not comport with the facts of this case. I dissent from that part of the majority opinion denying coverage for damages caused by breach of the lease agreement.

The ESLIO policy which was in effect at the time of the 1970 petroleum spill indemnified Murphy Oil for all sums that the insured was obligated to pay due to property damage caused by an accident. The Unigard policy in effect during the 1975 spill had similar language.

Murphy Oil was sued by Blakely Corporation in federal district court in Alabama in 1990 on alternative theories, which included (1) negligence for failure to use reasonable care to prevent the discharge of petroleum on the Blakely land, and (2) breach of the lease agreement for operating the facilities so as to allow petroleum to be discharged on the property and for fading to surrender the premises to Blakely in the same condition the land was in when the lease began. The gravamen of both counts was damage to the property caused by the petroleum spills. The negligence count was dismissed based on a limitations defense, and the majority correctly acknowledges that a jury award for negligence might have generated liability under the two policies.

Somehow, however, the majority concludes that the “contract damages” award by the Alabama jury for breach of the lease had no relationship to the “property damages” caused by the petroleum spills. The unsoundness of this conclusion is made manifest by the simple fact that without the property damages there would have been no “contract damages.” Blakely sued for damages resulting from discharge of petroleum on its property as one basis for breach of the lease, and the jury was instructed that the lease required that the leased property be put to a reasonable use, which an ordinary reasonable business would use when conducting its operations. Damage to its land was the very essence of Blakely’s complaint.

The two policies provided indemnity for all sums Murphy Oil was required to pay due to accidental property damage. We interpret insurance contracts according to their plain and unambiguous language and in favor of the insured. Smith v. Shelter Mut. Ins. Co., 327 Ark. 208, 937 S.W.2d 180 (1997); Nationwide Mut. Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307 (1993). What could be clearer than the language in the two insurance contracts?

At a minimum, the lease agreement on this point is ambiguous. When the terms of an insurance contract are ambiguous, we accept an interpretation favorable to the insured. Nationwide Mut. Ins. Co. v. Worthey, supra; Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979). Yet, inexplicably, the majority refrains from finding any connection between the petroleum spills and the breach of the lease agreement. In doing so, the majority concludes that Murphy Oil’s interpretation of its contract as well as that of the trial court are not reasonable constructions of the contract.

More seriously, the majority opinion fails to distinguish successfully the one decision that has confronted this issue and held in favor of the insured. See Braswell v. Faircloth, 387 S.E.2d 707 (S.C. App. 1989). In Braswell, the lessor of land sued its lessee and the liability carrier for the lessee for damage to the land caused by a chemical spill after the lease terminated. The trial court ruled the chemical spill was not an “occurrence” under the lease because it was not accidental but rather a deliberate failure to remove hazardous waste. The Court of Appeals reversed and focused on the accident and property damage. In doing so, the appellate court held that an “occurrence” under the policy took place and the carrier was liable.

As was the case in Braswell, the proper focus for the breach-of-lease claim should be on the accidental nature of the property damage and whether this constituted an “occurrence” for purposes of the ESLIC and Unigard policies. Just as in Braswell, Murphy Oil was required to compensate Blakely due to damage to its property, and just as in Braswell, the lessee’s carriers should be responsible for these damages. The majority opinion fails to acknowledge that accidental property damage lies at the core of this litigation and erroneously concludes that the appellate court’s rationale in Braswell does not rise to the level of legitimacy for ambiguity purposes. The majority opinion, in addition, appears to shift gears in its discussion of Braswell and concludes that the statute of limitations is the true distinguishing factor. Of course, limitations was not an issue in Braswell, and there is no question but that the breach-of-lease claim was timely filed and was directly tied to the accidental chemical spills in the case before us. Regardless of the label placed on the cause of action, whether it be for negligence or breach of lease, the liability imposed on Murphy Oil came about as the result of “occurrences” during the terms of the ESLIC and Unigard policies.

The majority next erroneously analogizes cases involving misrepresentation by an insured to the instant case where the underlying compensatory damages awarded were for breach of contract which were tied directly to property damage. See, e.g., Safeco Ins. Co. of America v. Andrews, 915 F.2d 500 (9th Cir. 1990). I agree that misrepresentation is not a covered occurrence for accidental property damage. But misrepresentation was not the basis for the $3.4 million award in Alabama. Damages were assessed for breach of the lease and for failure to put the property to a reasonable use. The punitive damages, no doubt, were attributed to misrepresentation, and, again, I agree they were not covered by the policies. But the compensatory damages awarded were separate from the punitive damages and were occasioned solely by the damage to the property.

It is surreal to contend that property damage was merely “lurking somewhere in the underlying case,” as the majority opinion puts it. The petroleum spills lay at the heart of the Alabama case, as can be readily gleaned from reading the complaint in that action.

In sum, the majority confuses a jury verdict based on damage to the land and then turning it over in a damaged condition, all of which breached the lease, with a verdict for fraud and misrepresentation based on hiding the fact that the land had been damaged. The jury awarded $3.4 million in damages based solely on breach of the lease. I fail to see why the two carriers should not be liable for the accidental spills which occurred while their contracts were in force. To hold otherwise is an interpretive stretch and etches in our caselaw a precedent that undermines favorable construction of insurance policies for insureds.

Because I disagree with the majority on this fundamental issue, there is no need to address the remaining points raised.

       The ESLIC and Unigard policies were for excess coverage. USF&G, which carried the basic coverage, paid Murphy Oil the policy limits.


author: Tom Glaze, Justice.

text:
    Derrick HARRELL and Carl Presley v. STATE of Arkansas
    CR 97-282
    962 S.W.2d 325
    Supreme Court of Arkansas
    Opinion delivered January 29, 1998

      John Stratford, for appellant Derrick Harrell.

      Mark Ferguson, for appellant Carl Presley.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellants Derrick Harrell and Carl Presley appeal from convictions of rape, kidnapping, aggravated robbery, residential burglary, and theft. For reversal, they claim the trial court erred in denying their motion for new trial because of the State’s nondisclosure of exculpatory impeachment material that related to the victim’s credibility. Harrell also argues the court erred by denying his directed verdict as to his rape and kidnapping convictions because the evidence was insufficient to support those two crimes. We first consider HarreE’s separate point, and set out the evidence in the light most favorable to the State as appellee. See Martin v. State, 328 Ark. 420, 426, 944 S.W.2d 512, 515 (1997).

On the morning of December 1, 1995, Lorene Davis was at home sick with the flu when she heard a noise. When she got out of bed to see what was causing the noise, she saw three men forcibly entering her house. Davis, who had seen these men previously, testified at trial that Harrell and Presley, who wore no masks, were the first to enter. Harrell had a gun. Davis related that the first two men knocked her down. The third intruder, Zachary Crockett, bore a long gun, and after he entered, he and Presley used duct tape on Davis’s arms and legs to restrain her. Presley punched Davis in the face and stomach, and then raped her. Crockett assisted in Presley’s rape of Davis, but left, responding to Harrell’s screaming, “Help [me] look for things in the house.” Davis further testified that she got a good look at all three men, that they pointed their guns at her,' and that she never consented to any of what happened. Davis related that she was “real drowsy” from her medicine, and on cross examination, agreed she was “pretty doped up.”

At trial, a physician testified that she had examined Davis after the events on December 1, and her findings were consistent with Davis’s story that she had been struck in the face, bound by tape, and raped. A forensic serologist also averred that the blood group substance found on Davis’s underwear could have been Presley’s.

This court has repeatedly held that the testimony of a rape victim does not have to be corroborated by other testimony. Sherrill v. State, 329 Ark. 593, 952 S.W.2d 134 (1997). Thus, the State’s evidence here was unquestionably substantial in showing Davis had been raped. Also, Davis’s testimony, coupled with the physician’s related above, sufficiently shows the crime of kidnapping. Arkansas law defines kidnapping in relevant part to include where a person, without consent, restrains another person so as to interfere substantially with his liberty with the purpose of facilitating the commission of any felony or inflicting physical injury upon or engaging in sexual intercourse with him. See Ark. Code Ann. § 5-11-102(a)(3) and (4) (Repl. 1997). However, Harrell submits that the record fails to show he committed those crimes either personally or as an accomplice. We disagree.

An accomplice is defined as one who directly participates in the commission of an offense or who, with the purpose of promoting or facilitating the commission of an offense, solicits, advises, encourages, or coerces the other person to commit the offense, or aids, agrees to aid, or attempts to aid the other person in planning or committing the offense. Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996). The presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant facts in determining the connection of an accomplice with the crime. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993).

Here, the evidence, at the least, shows Harrell aided in the kidnapping and rape of Davis. He was shown to have entered Davis’s house first while brandishing a gun, and tackled Davis, permitting her to be restrained with duct tape on her arms and legs. All three men, including Harrell, threatened to kill her if she looked at them. With this substantial evidence bearing on Harrell’s participation in all the crimes with which the trio were charged, we cannot say the trial court erred in denying Harrell’s motion for directed verdict.

We now turn to Harrell’s and Presley’s joint argument that the trial court erred in refusing them a new trial, because after trial, they learned Davis had previously pled guilty to the charge of possession of cocaine and that the prosecutor had failed to disclose this in response to their pretrial discovery motion. Appellants claim Davis’s guilty plea was material impeachment evidence that the State had the duty to disclose under the Brady Rule. Brady v. Maryland, 373 U.S. 83 (1963). In the Brady case, the Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Id. at 87. The Brady Rule has been interpreted to include impeachment, as well as exculpatory evidence. Unites States v. Bagley, 473 U.S. 667 (1985); Yates v. State, 303 Ark. 79, 794 S.W.2d 133 (1990).

Harrell and Presley first argue that Davis’s prior plea of guilty under Act 346 of 1975 — Arkansas’s First Offender Act — to a felony cocaine offense is material and admissible as a prior conviction under Rule 609 of the Arkansas Rules of Evidence. In sum, Rule 609 provides for the impeachment of a witness’s credibility by proof of prior criminal convictions. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). The State counters, arguing that, because no judgment of guilt had been entered against Davis, her guilty plea was not admissible as a conviction under the terms of Rule 609(a).

In Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992), this court unambiguously held that a plea of guilty under Arkansas’s First Offenders Act, Act 346, is not the equivalent of a conviction. In addition, Arkansas statutory law, Ark. Code Ann. § 16-85-712(3) (1987), provides in pertinent part that there is a conviction when a plea of guilty is accepted by the court. However, a court’s acceptance of a guilty plea pursuant to Act 346 is not a conviction. A court is specifically prohibited from entering a judgment of guilt where a defendant is sentenced under Act 346. See Ark. Code Ann. § 16-93-303(a)(1) (1987). See also, Gage v. State, 307 Ark. 285, 819 S.W.2d 279 (1991). Thus, since there was no showing that Davis’s guilt had been adjudicated or that a judgment had been entered by the court, her plea did not constitute a prior conviction admissible under Rule 609.

Appellants also argue that, even if Davis’s guilty plea under Act 346 might not ordinarily constitute a conviction under the Act’s terms, the trial court made the plea a conviction when it imposed a $500.00 fine against Davis when placing her on probation. They cite Ark. Code Ann. § 5-4-301 (d) (Repl. 1997), which provides that the court shall enter a judgment of conviction if it sentences the defendant to pay a fine. On this issue, we note that the appellants’ abstract reflects no conviction judgment imposing a fine, and point out that, under Ark. Code Ann. § 5-4-311 (Repl. 1997), if a judgment of conviction is not entered at the time of probation, the court must later discharge the defendant if the defendant complies with the conditions of his probation. Here, appellants fail to produce a record with a conviction judgment to support their argument, so we find it meritless.

We now turn to appellants’ final argument that, even if Davis’s guilty plea is not a prior conviction and admissible as such, her guilty plea and the conditions of her probation still constitute impeachment material in light of her testimony at trial. They allude to Davis’s testimony that, on the day of her attack, she said she was ill and “doped up” because of flu medicine she had taken. This testimony, they claim, created the impression she was not involved in illegal drug activity and that the drug she took was not an illegal drug. Appellants add that, had the defense been aware that Davis pled guilty to the cocaine offense only months prior to appellants’ trial, defense counsel could have explored whether she was under the influence of illegal drugs and would have consulted with Davis’s probation officer to learn if she had been passing her drug testing. Appellants conclude that this evidence was direcdy relevant to her credibility and whether her “memory of events” of the crimes was accurate.

The trial court rejected the appellants’ argument and, in doing so, relied on Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996), where the court dealt with Ark. R. Evid. 404(b) which provides that the evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith, but that it is admissible to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The Mosley court related the well-established principle that the evidence of other criminal activity may be introduced accompanied by a cautionary instruction, if it is “independently relevant to the main issue in the sense of tending to prove some material point rather than merely to prove the witness (in the present case the victim) is a criminal.”

In order for the appellants to prevail on this issue, they must demonstrate a reasonable probability that the result would have been different had they had the information concerning Davis’s prior possession of cocaine. The court in United States v. Bagley, supra, held that “reasonable probability” is a probability sufficient to undermine confidence in the outcome. See Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Yates v. State, 303 Ark. 79, 794 S.W.2d 133 (1990).

Here, in denying Harrell’s and Presley’s motion for new trial, the trial court found the undisclosed information pertaining to Davis would have made no difference in the outcome of their case. We are unable to find the trial court abused its discretion in so holding. Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991).

Although appellants urge that somehow Davis’s testimony concerning her having the flu and taking medicine misled the jury, it is difficult to see what independent relevance Davis’s guilty plea might have other than to show she had previously committed a drug felony. While appellants speak in terms of questioning Davis’s “memory of events” that occurred on December 1, Davis’s trial testimony reflected no hint of confusion or inconsistancy of what transpired. Though appellants did not argue below, or now on appeal, that identification was an issue, the record is quite clear that Davis had met and seen these men earlier and offered no doubts that Harrell and Presley were two of the three intruders. She testified that the men wore no masks, that she was able to get a good look at them, and that she had no doubts when picking Harrell and Presley out of a photo spread. On the record before us, we cannot say the trial court abused its discretion in denying the appellants a new trial.

In sum, we find that Harrell and Presley suffered no prejudice by the trial court’s denial of their new-trial motion on the basis of Davis’s guilty plea, since it is doubtful that the introduction of such evidence to impeach Davis’s testimony would have affected the outcome of their case.

For the reasons above, we affirm.


author: Donald L. Corbin, Justice.

text:
    David Ray EVANS v. STATE of Arkansas
    CR 97-445
    959 S.W.2d 745
    Supreme Court of Arkansas
    Opinion delivered January 29, 1998

      James R. Marschewski, for appellant.

      Winston Bryant, Att’y Gen., by: Mac Golden, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant David Ray Evans appeals the judgment of the Sebastian County Circuit Court convicting him of the attempted rape of his stepdaughter and sentencing him to forty-seven years in the Arkansas Department of Correction. He was also convicted of sexual abuse in the first degree and sentenced to an additional twenty years. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). In one point on appeal, Appellant asserts that the trial court erred in faffing to suppress the statement given by him due to a violation of Rule 2.3 of the Arkansas Rules of Criminal Procedure. We affirm.

After receiving information from a Department of Human Services Sexual Abuse Hotline, a Fort Smith investigator and a social worker visited Appellant’s home on the evening of February 22, 1996. Initially, the investigator and social worker went to the home to interview the entire family. Due to the difficulties in conducting an interview at the home, the investigator elected to move the interviews to the police department. After midnight on February 23, 1996, Appellant made a statement to police wherein he admitted to having sexual contact with his stepdaughter.

Appellant was charged with rape and sexual abuse in the first degree. A suppression hearing was held on August 12, 1996, wherein the trial court allowed the statement into evidence. The jury trial was held on August 16, 1996, and Appellant was found guilty of attempted rape and sexual abuse in the first degree. Appellant contends on appeal that his confession should have been suppressed due to the failure of the investigator to comply with Rule 2.3.

Rule 2.3 provides:

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

Appellant argues that the trial court erred in denying his motion to suppress his statement. We do not address the merits of this argument, as Appellant has failed to abstract the motion properly and failed to demonstrate that he obtained a ruling from the trial court on his motion to suppress.

This court has repeatedly maintained that it will not consider arguments that have not been properly abstracted. See, e.g., Lewis v. State, 330 Ark. 618, 955 S.W.2d 904 (1997); Richmond v. State, 326 Ark. 728, 934 S.W.2d 214 (1996); Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996). We have stated that it is a fundamental rule that the appellant is required to provide an abstract that contains information from the record necessary to an understanding of the questions presented to the court for decision. Ark. Sup. Ct. R. 4-2(a)(6); Richmond, 326 Ark. 728, 934 S.W.2d 214. Appellant’s brief is deficient, as the motion to suppress as abstracted does not provide the basis for the suppression. In addition, Appellant’s failure to abstract the trial court’s ruling provides no basis to this court for a decision, and thus, precludes us from considering the issue. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). Under these circumstances, we affirm. Ark. Sup. Ct. R. 4-2(b)(2).


text:
    Gary D. McQUILLAN and America’s Truckaway Systems, Inc. v. MERCEDES-BENZ CREDIT CORPORATION
    97-209
    961 S.W.2d 729
    Supreme Court of Arkansas
    Opinion delivered January 29, 1998

      Zurborg & Spaulding, P.A., by: Brian L. Spaulding, for appellants.

      Burke & Eldridge, P.A., by: John R. Eldridge, III, for appellee.
   Donald L. Corbin, Justice.

Appellants Gary D. McQuillan and America’s Truckaway Systems, Inc., (ATS) appeal the judgment of the Carroll County Circuit Court, Western District, awarding damages in the amount of $17,509.52 and $1,000.00 in attorney’s fees to Appellee Mercedes-Benz Credit Corporation (MBCC) for its claims of replevin and conversion against Appellants. On appeal, Appellants assert that the trial court erred in finding that a conversion had occurred and in calculating the damages and fees awarded to MBCC. This case is certified to us from the court of appeals, as the issues present questions involving the law of torts; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(d). We affirm.

The matter was tried before the court in a bench trial. The judgment reflects that the trial court made the following findings of fact. MBCC had a perfected security interest in two 1991 Freightliner trucks arising from a retail installment contract in which MBCC had financed the purchase of the trucks by Penguin Truck Leasing, Inc., from New Dallas Freightliner. The parties stipulated as to the existence of MBCC’s perfected security interest. Penguin subsequently defaulted on its payments under the agreement.

In late 1993, ATS hauled seventeen trucks for St. Lawrence Freightway from Dallas, Texas, to various locations. Two of those seventeen trucks were the same trucks in which MBCC had a perfected security interest. ATS issued three invoices, one dated November 22, 1993, and two dated December 9, 1993, to St. Lawrence Freightway for transporting fourteen of the seventeen vehicles, including the two MBCC trucks. Those two trucks were transported by ATS under separate invoice dated December 9, 1993, from Dallas to McKee’s Rock, Pennsylvania. All three of the invoices issued from ATS to St. Lawrence Freightway were unpaid. The record reflects that the first invoice, number 3296, was for transporting six trucks, with a total amount of $4,123.50 payable to ATS. The second invoice, number 3305, was also for transporting six trucks, with a total amount of $3,712.94 payable to ATS. The third invoice, number 3310, was for transporting the two MBCC trucks, with an amount of $1,682.80 payable to ATS.

The court found further that when the two MBCC trucks were delivered at McKee’s Rock, on December 7, 1993, the driver demanded payment for all three invoices issued by ATS, but did not receive any payment. ATS then stored the two MBCC trucks at Cerni Truck Center in Hubbard, Ohio. No later than May 27, 1994, and subsequent to Penguin’s default under the installment agreement with MBCC, McQuillan, individually and as president of ATS, received notice that MBCC had a perfected security interest in the two trucks. On or about June 15, 1994, McQuillan was served with process issued out of Cass County, Missouri, in an action commenced by MBCC for possession of the two trucks that were being stored, unbeknownst to MBCC, at Cerni Truck Center in Ohio. McQuillan hired an attorney to defend against the action filed in Missouri, who made an offer to MBCC in which Appellants would return the two trucks if MBCC would pay all of the unpaid invoices, together with the unpaid storage charges for the trucks. In other words, Appellants were attempting to secure payment from MBCC for the entire debt owed by St. Lawrence Freightway to ATS for transporting the fourteen trucks, notwithstanding the fact that MBCC only had an interest in two of those trucks.

MBCC filed the instant action for replevin in Carroll County on July 14, 1994. Alternatively, MBCC prayed for relief under a theory of conversion. Through his attorney in the Arkansas action, McQuillan offered to return the two trucks to MBCC for the sum of $8,000.00, if MBCC agreed to pay the storage charges. The invoice pertaining to the two MBCC trucks was for the sum of $1,682.80. MBCC discovered the location of the two trucks in October 1994, and obtained possession of them on October 6, 1994, after paying Cerni Truck Center the sum of $4,000.00 in storage fees. In addition to the storage fees, MBCC also paid $400.00 for the transportation of the two trucks and expended $13,109.52 in legal fees in its attempts to recover the trucks through the legal processes of various states.

The trial court specifically rejected Appellants’ claim that ATS had a carrier’s hen on the two trucks. Instead, the court found that Appellants’ actions in refusing to surrender possession of the two trucks to MBCC, in placing them in “secret storage,” and insisting upon payment of charges over and above those to which they would have been entitled under a properly estabhshed carrier’s hen, constituted the tort of conversion.

I. Conversion

For their first point for reversal, Appellants argue that the trial court erred in finding that a conversion had occurred, as they contend that they had a valid carrier’s hen on the two trucks that was superior to MBCC’s perfected security interest. We disagree.

Conversion is a common-law tort action for the wrongful possession or disposition of another’s property. France v. Nelson, 292 Ark. 219, 729 S.W.2d 161 (1987); Gardner v. Robinson, 42 Ark. App. 90, 854 S.W.2d 356 (1993). To establish liability for the tort of conversion, a plaintiff must prove that the defendant wrongfully committed a distinct act of dominion over the property of another, which is a denial of or is inconsistent with the owners’ rights. South v. Smith, 326 Ark. 774, 934 S.W.2d 503 (1996) (citing Dent v. Wright, 322 Ark. 256, 909 S.W.2d 302 (1995)); Reed v. Hamilton, 315 Ark. 56, 864 S.W.2d 845 (1993). Where the defendant exercises control over the goods in exclusion or defiance of the owner’s rights, it is a conversion, whether it is for defendant’s own use or another’s use. Id.

In Car Transp. v. Garden Spot Distrib., 305 Ark. 82, 805 S.W.2d 632 (1991), relied upon by MBCC, this court observed that conscious wrongdoing is not the requisite intent for conversion; rather, what is required is that there be intent to exercise control or dominion over the goods. In that case, the appellant was attempting to assert a carrier’s lien and was demanding payment of current charges as well as past debts before it would deliver the goods to the owner. This court held that “[i]f a hen defense is available to the motor carrier, it can only be asserted against currently transported goods for current freight charges that remain unpaid.” Id. at 87, 805 S.W.2d at 634. This court held further that its conclusion was supported by Prosser:

An unqualified refusal to surrender, stating no reason, or one stating the wrong reason, is still a conversion, even where there are unstated justifications. And if the defendant insists upon charges, or other conditions of delivery, which he has no right to impose, there is conversion.

Id. (emphasis added) (quoting Prosser and Keaton on Torts, § 15, at 100 (5th ed. 1984)).

Arkansas Code Annotated § 4-7-307 (Repl. 1991) provides for the establishment of a carrier’s lien:

(1) A carrier has a hen on the goods covered by a bill of lading for charges subsequent to the date of its receipt of the goods for storage or transportation (including demurrage and terminal charges) and for expenses necessary for preservation of the goods incident to their transportation or reasonably incurred in their sale pursuant to law. But against a purchaser for value of a negotiable bill of lading a carrier’s Hen is limited to charges stated in the bill or the applicable tariffs, or if no charges are stated then to a reasonable charge.
(2) A lien for charges and expenses under subsection (1) on goods which the carrier was required by law to receive for transportation is effective against the consignor or any person entitled to the goods unless the carrier had notice that the consignor lacked authority to subject the goods to such charges and expenses. Any other hen under subsection (1) is effective against the consignor and any person who permitted the bailor to have control or possession of the goods unless the carrier had notice that the bailor lacked such authority.
(3) A carrier loses his lien on any goods which he voluntarily delivers or which he unjustifiably refuses to deliver. [Emphasis added.]

McQuillan testified below that he had instructed his contracted driver not to release the two MBCC trucks until he had received payment for all of the invoices. In response to MBCC’s attorney’s question whether he, through his Missouri attorney, had offered to return the trucks if MBCC would pay all the invoices plus storage fees, McQuillan stated “[w]e was [sic] trying to get all our money.” Additionally, McQuillan admitted that he had never extended an offer to return the trucks to MBCC in exchange for the transportation fees for the two trucks, $1,682.80, plus storage fees. In addition to such testimony, the trial court also received into evidence various letters between the attorneys for the parties in which offers for the trucks’ release were discussed. One such letter, dated September 19, 1994, from McQuillan’s then attorney to MBCC’s attorney indicated that McQuillan would be pleased to inform MBCC of the storage location of the trucks upon receipt of $7,000.00, which MBCC had previously offered as a complete settlement of the transportation fees and storage costs.

The trial court specifically found that Appellants had not established that they had acquired a valid carrier’s fien because they had refused to surrender possession of the two trucks to MBCC, had placed the trucks in “secret storage,” and had insisted upon payment of charges over and above those to which they would have been entitled, by demanding payment of all three invoices, despite the fact that only one of the invoices pertained to the transportation fees for the two trucks at issue.

In bench trials, the standard of review on appeal is whether the trial judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997); ARCP Rule 52(a). We view the evidence in a light most favorable to the appellee, resolving all inferences in favor of the appellee. France, 292 Ark. 219, 729 S.W.2d 161. Disputed facts and determinations of the credibility of witnesses are within the province of the factfinder. Id. Based upon the evidence presented below and the testimony of McQuillan, we cannot say that the trial court’s findings on this issue were clearly erroneous.

II. Damages

For their second point for reversal, Appellants argue that the trial court erred in its award and assessment of damages to MBCC. Specifically, they contend that there was an absence of proof as to the market value of the two trucks, and that the trial court erred in awarding attorney’s fees, as they contend there is no authority for awarding such fees in a conversion case.

MBCC contends that it was entitled to compensatory damages caused by Appellants’ wrongful refusal to surrender the trucks, and that it was due to such wrongful refusal that MBCC incurred attorney’s fees in the amount of $13,109.52. MBCC contends further that the testimony of Andrew Kanel established that MBCC had paid $4,000.00 in storage charges, $400.00 for hauling the trucks from Cerni Truck Center, and $13,109.52 for attorney’s fees incurred in the attempt to recover possession of the trucks. MBCC asserts that the attorney’s fees claimed were only those incurred as a direct result of its attempts to secure possession of the trucks, and that no such fees were claimed subsequent to the time that possession of the trucks was obtained.

Ordinarily, the proper measure of damages for conversion of property is the market value of the property at the time and place of its conversion. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979). The market value of the property is not, however, the only measure of the damages recoverable in an action for conversion; the circumstances of the case may require a different standard, including a measure of the expenses incurred as a result of the conversion. First Nat’l Bank of Brinkley, Ark. v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984). Moreover, the fact that the items were eventually returned to the owners does not necessarily bar recovery of damages for their conversion, but may mitigate the damages. Ford Motor Credit Co., 267 Ark. 201, 589 S.W.2d 584. Generally, the law permits evidence of the return of the property to its owner in mitigation of damages only when certain circumstances are present: (1) that the owner must have accepted the return of the goods; (2) that the original conversion occurred by mistake; and (3) that the return of the goods occurred promptly after the discovery of the mistake and before the commencement of the action for conversion. McKenzie v. Tom Gibson Ford, Inc., 295 Ark. 326, 749 S.W.2d 653 (1988).

In the case at hand, MBCC did eventually receive possession of the converted property. The trial court then awarded damages to MBCC in the amount of $17,509.52, the exact amount of the costs that Kanel stated were expended by MBCC in its attempts to recover possession of the two trucks. As such, we cannot say that the trial court erred in awarding such compensatory damages, as this court has acknowledged the permissibility of awarding damages in án action for conversion based upon the expenses incurred as a result of the conversion. First Nat’l Bank of Brinkley, 282 Ark. 339, 668 S.W.2d 533.

Furthermore, we cannot say that the award of damages for legal fees incurred by MBCC in its attempts to recover the two trucks was erroneous. This conclusion is supported by the decisions of other jurisdictions. In Fulks v. Fulks, 121 N.E.2d 180 (Ohio Ct. App. 1953), the Ohio Court of Appeals held that although attorney’s fees incurred in the prosecution of a conversion action were not recoverable, those attorney’s fees spent in recovering possession of the converted property were properly awarded as special damages by the trial court. Subsequently, that same court explained the decision in Fulks, holding that there was a distinction between those attorney’s fees expended in an effort to recover the converted property and those expended generally in the prosecution of the conversion action. Cincinnati Ins. Co. v. Diebold, Inc., 581 N.E.2d 566 (Ohio Ct. App. 1989). That court went on to hold that where the action is one to recover money damages for the wrongful conversion of the property, as opposed to an action to recover the possession of the property, attorney’s fees are not proper damages. Id. Similarly, the Texas Court of Civil Appeals has held that the measure of damages for the conversion of personal property may include special damages “resulting from the withholding of the property or properly incurred by the owner in the pursuit of it.” Reed v. White, Weld & Co., Inc., 571 S.W.2d 395, 397 (Tex. Civ. App. 1978). We find these holdings persuasive of the issue involved in this case.

Flere, the action was one for replevin and, alternatively, for conversion of the two trucks. As such, the expenses incurred by MBCC in its attempts to recover possession of the trucks are proper as damages under the circumstances of this case. We see no reason to distinguish the award of such expenses based upon whether the actions taken to secure the return of the property were performed by attorneys or persons of other occupations, such as repossession agents. Additionally, the award of such damages is supported by Ark. Code Ann. § 18-60-820(a) (1987), which provides that “[i]n an action to recover the possession of personal property, judgment for the plaintiff may be for the delivery of the property, . . . and damages for the detention.” (Emphasis added.) See also France, 292 Ark. 219, 729 S.W.2d 161. We thus affirm as to that portion of the damages awarded to MBCC.

As for the issue of the separate award of $1,000.00 attorney’s fees, we must reverse the trial court’s ruling, as it is apparent that this amount was awarded for the expenses incurred in the prosecution of MBCC’s suit. The judgment entered below reflects that MBCC was awarded $17,509.52 as costs expended and an additional award of $1,000.00 in attorney’s fees. As such, the separate award of $1,000.00 cannot stand. The general rule in Arkansas is that attorney’s fees incurred in the pursuit of civil actions are not awarded unless expressly provided for by statute or rule. Security Pac. Housing Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993); Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). Arkansas Code Annotated § 16-22-308 (Repl. 1994), which provides for attorney’s fees in specific civil actions, does not allow attorney’s fees in tort actions. Friddle, 315 Ark. 178, 866 S.W.2d 375; Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992).

Here, the trial court awarded $1,000.00 to MBCC separately as attorney’s fees for action taken in pursuit of the civil claims, rather than as part of the costs incurred by MBCC in the recovery of the trucks. Thus, the trial court erred in awarding that sum to MBCC, as attorney’s fees incurred generally in the prosecution of replevin and conversion actions are not expressly provided for by statute. Accordingly, we affirm the trial court’s award of damages in the amount of $17,509.52, but we modify the judgment to reflect that Appellants are not required to pay the $1,000.00 in attorney’s fees resulting from the prosecution of the current litigation.

Affirmed as modified.

       It is not known what the exact relationship was between St. Lawrence Freightway and Penguin Truck Leasing, Inc.