author: Steele Hays, Justice.

text:
    Robert G. TROUTT and Janette M. TROUTT, Husband and Wife, and Q. Byrum HURST, Jr. and Rita HURST, Husband and Wife v. FIRST FEDERAL SAVINGS & LOAN ASS’N OF HOT SPRINGS, Hot Springs, Arkansas, Joined by David E. WHITED and Bonnie C. WHITED, Husband and Wife
    83-117
    659 S.W.2d 183
    Supreme Court of Arkansas
    Opinion delivered October 31, 1983
    [Rehearing denied November 21, 1983.]

      Richard McMillan, for appellant.

      Wood, Smith ir Schnipper, by: Don M. Schnipper, for appellee Whited.

      Glover, Sanders, Parkerson & Hargraves, for appellee First Federal Savings and Loan Ass’n of Hot Springs.

      Adkisson, C.J., not participating.

   Steele Hays, Justice.

Two issues are raised by this appeal from a foreclosure decree: 1) whether appellants’ note to First Federal Savings and Loan Association of Hot Springs providing for 12% interest is void for usury; and 2) whether excessive fees were allowed attorneys for the mortgagees. Neither question is new.

Appellants, Robert and Janette Troutt, executed two notes in October 1981 for the purchase of real property in Garland County. One note, secured by a first mortgage, was given to the savings and loan association and recited an interest rate of 12%. The second note, which is not in dispute, was given to the sellers, David and Bonnie Whited, and provided for 10% interest. The borrowers defaulted and this foreclosure suit was filed. The Chancellor rejected the contention that the 12% interest rate is usurious and we affirm.

Prior to the recent adoption of Amendment 60 to the Constitution of Arkansas, Article 19, Section 13 prohibited charging interest above an annual rate of 10%. However, the preemptive provisions of the Depository Institutions Deregulation and Monetary Control Act [12 U.S.C. § 1735Í-7, Pub. L. No. 96-221, § 501, 94 Stat. 161 (1980)], permits interest at higher levels where the note is made after March 31, 1980, and is secured by a first mortgage on residental real property. Without citation, appellants maintain that where the loan is wholly intrastate in character, the borrowers and the lender being residents of Arkansas, the transaction is not within the regulatory power of the Congress. But that identical argument was examined thoroughly and rejected on rehearing in McInnis v. Cooper Communities, 271 Ark. 503, 611 S.W.2d 767 (1981), and while this court was sharply divided on the issue, the law is now settled and warrants no reopening.

Nor can the second argument be sustained. In the foreclosure proceedings the Chancellor allowed fees of $7,366.00 to lawyers for the savings and loan association and $6,173.00 to lawyers for the Whiteds, on respective indebtednesses of $81,925.75 and $62,194.57. The fees were decidedly disproportionate to the amount of time shown to have been spent as of the entry of the decree, but we have recognized a number of elements besides time to be weighed in fixing fees. Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829 (1969) and Farm Bureau Insurance Co. v. Kizziar, 1 Ark. App. 84, 613 S.W.2d 401 (1981). We have said repeatedly that an award of attorney’s fees addresses itself to the sound discretion of the trial court and will not be reversed in the absence of an abuse of discretion. New Hampshire Insurance v. Quilantan, 269 Ark. 359, 601 S.W.2d 836 (1980); Equitable Life Insurance Society of the United States v. Rummell, 257 Ark. 90, 514 S.W.2d 224 (1974).

In Bowen v. Danna, 276 Ark. 528, 637 S.W.2d 560 (1982), we affirmed a fee of $9,427.68, which was 10% of the unpaid principal and interest in a foreclosure suit, but in so doing we noted that appellant had made no attempt to show an abuse of discretion by the trial court (the record contained only the amount of the fee and the amount of the indebtedness). However, it should be said that simply because it is now customary to include a provision in the note for a 10% attorney’s fee in the event of default, that should not lead to the arbitrary setting of fees based on fixed percentages. The 10% provision is to be regarded as a ceiling on the fee allowed, at least in the absence of extraordinary circumstances. Fees in such cases should not exceed an amount that is reasonable in each case.

The decree is affirmed.

Adkisson, C.J., not participating.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Ricky D. LONG v. STATE of Arkansas
    660 S.W.2d 911
    Supreme Court of Arkansas
    Opinion delivered October 31, 1983
    Appellant, pro se.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Deputy Atty. Gen., for appellee.
   Per Curiam.

Appellant Ricky D. Long states in his pro se motion for belated appeal that he was found guilty on June 8, 1983 of theft of property and of aggravated robbery on July 1, 1983. He alleges that he believed that his trial attorney John Kearney had filed a notice of appeal in the two cases, but he learned on July 12 by way of a letter from Kearney to him that Mr. Kearney had decided not to appeal. Mr. Kearney has filed an affidavit in response to appellant’s motion in which he concedes that appellant contacted him about an appeal but he neither pursued the appeal nor sought to be relieved as counsel as required by the rules of appellate procedure.

An appeal in a criminal case will be accepted where to do otherwise would be a denial of the constitutional right to effective assistance of counsel. Moore v. State, 267 Ark. 548, 592 S.W.2d 450 (1980). Here, appellant timely informed his attorney that he wished to appeal. Counsel therefore was obligated to continue to represent appellant in an appeal unless permitted by the trial court or this Court to withdraw. A.R.Cr.P. Rule 36.26. Since counsel has conceded that he did not appeal the convictions or obtain permission to withdraw, appellant is entitled to a belated appeal. Mr. Kearney is hereby ordered to pursue the appeal of appellant’s two convictions. A copy of this opinion shall be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).

Motion granted.


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

text:
    T. J. HAYES v. STATE of Arkansas
    CR 82-113
    280 S.W.2d 648
    Supreme Court of Arkansas
    Opinion delivered November 2, 1983

      Jeff Rosenzweig, for petitioner.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Deputy Atty. Gen., for respondent.
   Per Curiam.

Petitioner T. J. Hayes was convicted by a jury of the capital felony murder of Catherine Carter and J. W. Lunsford. He was sentenced to death. We reversed and remanded the case for a new trial. Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981). On retrial, petitioner was found guilty and again sentenced to death. The conviction and sentence were affirmed. Hayes v. State, 278 Ark. 211, 645 S.W.2d 662 (1983). Petitioner then sought a writ of certiorari before the United States Supreme Court. After his petition was denied on October 3, 1983, petitioner filed the petition for stay of execution and petition to proceed pursuant to A.R.Cr.P. Rule 37 which are now before us. Finding no grounds for postconviction relief, both petitions are denied.

Catherine Carter’s parents testified at trial that Catherine and petitioner, both of whom were black, got into a cab driven by a white driver at about 2:30 p.m. on July 16, 1979. At approximately that time a security guard at the Arkansas Department of Correction saw petitioner and a black female pass by on Princeton Pike in a Yellow Cab driven by a white male. According to petitioner’s statement to police he told the cab driver, J. W. Lunsford, to stop at an unoccupied house on Princeton Pike. When the three got out of the cab, petitioner, who was armed with a .38 caliber pistol, shot Lunsford twice, killing him. Petitioner and Catherine entered the house where petitioner shot her twice. As petitioner was driving the cab to a wooded area to hide it, he was seen by the same security officer who had seen the cab earlier. Later that day, petitioner walked into the Jefferson County Sheriff’s Office and announced that he had just killed his girlfriend. He then led officers to the two bodies and showed them where the cab was hidden. After being advised of his rights, he gave a statement describing the two murders.

In his petition for postconviction relief, petitioner first argues that he was denied a speedy trial. This issue was raised in the first appeal and found to be without merit. We declined to consider the question again on the second appeal and will not entertain it now in a petition for postconviction relief. Houser v. United States, 508 F.2d 509 (8th Cir. 1974); Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). Petitioner contends that the issue is not barred from reconsideration, however, because he is couching it in terms of ineffective assistance of counsel; that is, counsel should have raised the issue as a violation of his rights under another rule of procedure, A.R.Cr.P. Rule 28.1 (b). The allegation is essentially conclusory. Petitioner merely states that Rule 28.1 (b) in effect at the time of his first trial was violated. He asks for a hearing on precisely when petitioner was committed to prison after his parole was revoked on another charge and precisely what were the excludable periods between arrest and the first trial. He does not give any factual support for his claim that a hearing would demonstrate the denial of a speedy trial. Rule 37 is not available to the petitioner who wishes to have a hearing in the hopes of finding some ground for relief.

Petitioner next alleges that he was denied due process of law and effective assistance of counsel by counsel’s failure to conduct a meaningful voir dire of the jury panel and counsel’s failure to make an adequate appellate record of the voir dire. Petitioner specifically cites counsel’s failure (1) to request a sequestered voir dire; (2) to ask death penalty related questions of the last five jurors seated; (3) to make an adequate record in opposition to the death qualification of the jury; (4) to object to the excusal for cause of veniremen Burns, Faulk, Gaither andT. Jones under Witherspoon; (5) to object to the veniremen being called in alphabetical order rather than by random selection; (6) to make more than one defense challenge for cause; (7) to conduct meaningful questions about attitudes toward the death penalty and diminished capacity; (8) to ask for a mistrial or admonition after venireman Greenhouse mentioned that he had attended petitioner’s first trial; and (9) to seek answers during voir dire on which to develop an intelligent strategy of challenges. Petitioner states that if an evidentiary hearing is held, he will present expert testimony from attorneys to show that the voir dire was inadequate for a capital case.

Petitioner’s long list of counsel’s shortcomings fails to demonstrate the need for an evidentiary hearing because he does not show that any j uror was unqualified to serve. Jurors are presumed to be unbiased and qualified. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). Petitioner’s bare allegation that he was prejudiced by counsel’s conduct during voir dire which is unsupported by any showing of actual prejudice does not establish ineffective assistance of counsel. See Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983); Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978). We also note that a death qualified jury is constitutional. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983).

The prosecutor made references in his opening statement to the victims’ inability to be witnesses at the trial and their inability to enjoy life. He also said the jury would have to be the victims’ voice at the trial. Petitioner asserts that these remarks were prejudicial and a denial of due process. He further contends that counsel should have requested an admonition from the court.

When an issue is not raised at trial, as the issue of the propriety of the state’s opening statement was not, the issue cannot be raised under Rule 37 unless the question is so fundamental as to render the judgment void and open to collateral attack. Neal v. State, supra. Even questions of constitutional dimension are waived if not raised in accordance with the controlling rules of procedure. Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981). We do not find that the prosecutor’s remarks render the judgment here void. We also cannot say that counsel was remiss in not objecting. There is a presumption of effective assistance of counsel. Hill, supra. To overcome that presumption, a petitioner must show by clear and convincing evidence that some prejudice resulted from counsel’s representation and that the prejudice was such that he did not receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). Petitioner has not shown prejudice and the denial of a fair trial by counsel’s failure to request an admonition.

According to petitioner his attorney called no witnesses in the penalty phase of the trial even though the record contains the report of a doctor which allegedly contained evidence in support of a mitigating circumstance. The failure to call witnesses in the penalty phase is not in itself an indication of ineffective assistance of counsel. Collins, supra. Counsel must use his own best judgment to determine which witnesses, if any, will be beneficial to his client. Hill, supra. (The record indicates that petitioner himself asked that his sister not testify.) Petitioner does not say to what the doctor would have testified had he been called beyond the conclusory allegation that the doctor’s report would have supported the mitigating circumstance of diminished capacity. An allegation with no factual support is not grounds to find that counsel should have called a particular witness. Hill, supra.

Petitioner anticipates that the state would argue that he waived his right to present mitigating evidence. He contends that his mental condition was such that he could not competently waive the issue. If this is an attempt to raise the question of petitioner’s mental state at the time of trial, it cannot succeed because Rule 37 was not intended to provide a method for raising questions which are properly considered at trial andón appeal. Swindler v. State, 272 Ark. 340, 716 S.W.2d 1 (1981).

Petitioner also complains that during the penalty phase the state mentioned that his prior conviction for second degree murder had been reduced from a charge of first degree murder. He alleges that counsel should have objected and asked for an admonition or a mistrial. Although petitioner alleges prejudice, he has not established it. Counsel may well have chosen to remain silent to avoid drawing the jury’s attention to the remark.

The state referred to the victim Catherine Carter in its closing argument as a loving woman who helped support her parents and who left a teenage son. Petitioner contends that her character was not in issue and that the remark should have elicited an objection from counsel. The victim’s mother had already characterized her daughter as a church member who helped support her parents. The mother also testified that the victim had a son. Defense counsel objected to the testimony as irrelevant and the objection was sustained. Some of this same information was reiterated in the state’s closing argument but there is no basis to conclude that petitioner was denied a fair trial by counsel’s failure to object to it at that point. The jury had already heard about the victim’s character. As a matter of trial strategy counsel may have decided to allow the information to be heard again rather than object and appear reluctant for the jury to know about the victim’s background. Another attorney may have reacted differently, but in any event, petitioner has not shown that counsel’s conduct prejudiced him or amounted to any more than a tactical decision. Matters of trial strategy are often open to debate and do not provide grounds for postconviction relief. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).

Petitioner gives three page numbers from the record and alleges that there are examples of violations of the prohibition against “Golden Rule arguments” on those pages. Page numbers where examples may be found are not sufficient, however, to demonstrate prejudice. Petitioner also alleges that the prosecutor waved his finger in his face during closing argument to taunt him and inflame the jury. There was an objection to this but no ruling.

The jury in this case was instructed that closing arguments are not evidence. Experienced counsel in this case, or any case, could disagree as to the influence a particular closing argument had on the jury’s verdict. Before a petitioner can prevail on an allegation that counsel was wrong in not objecting during closing argument, he must establish that he was denied a fair trial by the failure to object. Mere errors, omissions or mistakes, improvident strategy or bad tactics will not suffice to require an evidentiary hearing. Leasure, supra. At most, petitioner has shown mere error or bad tactics on the part of counsel.

Petitioner waived the defense of insanity. He now asserts that counsel was ineffective in not requesting a jury instruction on diminished capacity, intoxication or "other such problems.” Although a specific instruction was not given on intoxication or diminished capacity, petitioner’s allegation that one was needed is too vague to warrant a hearing. Petitioner declared to the court that he was pleading "just plain not guilty,” not "not guilty by insanity or nothing like that.” The jury was instructed on the intent necessary to find petitioner guilty of capital murder and the lesser included offenses of murder in the first and second degrees and manslaughter. The instruction on second degree murder covered homicide committed under extreme emotional disturbance, thus affording the jury an opportunity to consider the possibility that petitioner was emotionally disturbed. The jury’s verdict indicates that it found no such disturbance; but even if no instructions had been given on the lesser included offenses, petitioner has offered no good reason to suggest that counsel was incompetent by virtue of his not requesting a separate instruction.

While conceding that the jury was instructed on the lesser included offenses to capital murder, petitioner argues that the instructions given were not meaningful to the jury. The allegation is conclusory and not deserving of a hearing. Smith, supra.

The jury found one aggravating circumstance. Petitioner alleges that Ark. Stat. Ann. § 41-1302 (Repl. 1977) requires more than one aggravating circumstance because the statute refers to aggravating circumstances in the plural. We find no merit to the argument. Ark. Stat. Ann. § 1-201 (Repl. 1977) provides:

PLURAL WORDS. — Whenever, in any statute, words importing the plural number are used in describing or referring to any matter, parties or persons, any single matter, party or person shall be deemed to be included, although distributive words may not be used. [Rev. Stat., ch. 129, § 20; C. & M. Dig. § 9726; Pope’s Dig., § 13252.]

Ark. Stat. Ann. § 41-1302, therefore, requires only that the jury unanimously find at least one of the aggravating circumstances set out in § 41-1303 to exist before it can impose the death penalty.

Petitioner asserts that the imposition of the death penalty in his case is not in proportion to the crime committed when compared to other capital defendants. On appeal, this Court found no evidence that the jury’s verdict was based on passion or prejudice. We further found that the imposition of the death penalty was not arbitrary, capricious or wanton. In comparing petitioner’s case to other cases in which the death penalty was imposed, we did not find the sentence excessive. The aggravating circumstances of petitioner’s prior felony conviction outweighed beyond a reasonable doubt any mitigating circumstances. There is no cause to deviate from those findings now.

Before trial began petitioner was offered the opportunity to enter into a plea bargain whereby he would plead guilty and accept a sentence of life imprisonment without parole. He declined the offer. He now alleges that it was a violation of his constitutional right to due process and constituted cruel and unusual punishment for the state to seek the death penalty after he elected to have a jury trial instead of pleading guilty. There is no right to plead guilty, and the fact that only a jury may impose the death penalty does not invalidate Ark. Stat. Ann. §§ 41-1301 — 1304 (Repl. 1977), which set forth the procedures governing jury trials for persons charged with capital murder. Ruiz & Denton v. State, 275 Ark. 410, 630 S.W.2d 44 (1982), cert. denied, U.S _

Petitioner concedes that this Court has already ruled on certain issues which cannot be raised again under Rule 37. To assure exhaustion of state remedies, however, he alleges that his statement was not admissible; the death penalty is cruel and unusual punishment; and he was insane at the time of trial and remains insane today. We agree that these issues are not properly raised under our postconviction rule.

Finally, petitioner asks this Court to find that the cumulative effect of counsel’s errors and omissions rendered his representation ineffective. There are no perfect trials. Due process demands only that the accused receive a fair trial. Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982). Petitioner has alleged imperfections but he has not established prejudice from the representation of counsel such that his trial was unfair. Accordingly, he has not met the burden of proving ineffective assistance of counsel.

Petitions denied.

Dudley and Purtle, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. The petitioner has been sentenced to death. He pleads that he received the sentence of death, rather than life imprisonment without parole, solely because he did not receive the effective assistance of counsel guaranteed by the Sixth Amendment of the Constitution of the United States.

Death as a penalty is qualitatively different from all other punishments. It is to be imposed only after a structured exercise of discretion, which can be thwarted by incompetent representation. The petitioner’s allegations of ineffective representation, whether or not conclusory, are sufficiently serious to raise questions about a failure to present evidence which, in turn, would undermine the predicate for the structured discussion. Those questions should be rightfully answered before the petitioner is executed. I would grant the evidentiary hearing and stay the execution.

I am authorized to say that Purtle, J., joins in this dissent.


author: Richard B. Adkisson, Chief Justice.

text:
    Lewis A. SMITH v. R. A. BROOKS TRUCKING CO.
    83-152
    660 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered November 7, 1983

      Darrell F. Brown & Associates, P.A., by: Elizabeth A. Walker, for appellant.

      Harkness, Friedman, Kusin & Britt, by: Bruce A. Condit, for appellee.
   Richard B. Adkisson, Chief Justice.

The trial court, sitting as trier of fact, awarded appellee, R. A. Brooks Trucking Company, $13,047.00 for damages to its vehicle resulting from the negligence of appellant, Lewis A. Smith, in allowing his cattle, two bulls, to run free on the highway. On appeal two points are argued for reversal: (1) that the judgment was not supported by substantial evidence; and (2) that the award of damages was based upon incompetent evidence.

There was sufficient evidence of appellant’s negligence to support the verdict. The owner of livestock is liable when damage results from his intentionally or negligently permitting animals to be at large. Favre v. Medlock, 212 Ark. 911, 208 S.W.2d 439 (1948). On appeal we will not reverse the trial court’s finding unless it is clearly erroneous. ARCP, Rule 52.

Evidence supporting the finding of the trial court was testimony of appellant’s wife that, upon being notified one bull was out, she ran it back towards the pasture but was never sure she had run the animal into the fenced area. Mrs. Smith also testified that she and her brother-in-law looked for the bull to make sure that it laad gone inside the pasture but never found it; even so,/ner husband sent her home because “it was so bad down there that he wanted me to get out of [those] woods.” There was also testimony that Mrs. Smith knew for more than eight hours prior to the collision of appellee’s vehicle that at least one of the bulls was running loose. We cannot say that the trial court erred in finding substantial evidence to support his finding of negligence.

Appellant’s argument that the award of damages was based upon incompetent evidence is precluded by the fact that he failed to obj ect to the evidence in the lower court. We have consistently held that we will not consider issues raised for the first time on appeal. Sun Gas Liquids Co. v. Helena Nat’l Bank, 276 Ark. 173, 633 S.W.2d 38 (1982).

Affirmed.


author: George Rose Smith, Justice.

text:
    ARKANSAS DEPARTMENT OF FINANCE AND ADMINISTRATION v. CITY OF NORTH LITTLE ROCK, Reed THOMPSON, Mayor
    83-128
    659 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered November 7, 1983

      Kelly S. Jennings, for appellant.

      Jim Hamilton, City Atty., for appellees.
   George Rose Smith, Justice.

By Act 256 of 1979 the General Assembly adopted the Uniform Disposition of Unclaimed Property Act. Ark. Stat. Ann. §§ 50-620 to -647 (Supp. 1983). The City of North Little Rock held unclaimed property within the act, in that its Electric Department had operated the city’s electric distribution system for many years and had accumulated $58,631.29 in small deposits made by its customers to secure the payment of their monthly bills and left unclaimed when they ceased being customers of the utility. In this suit by the State to recover the accumulated $58,631.29, the chancellor upheld the State’s right to recover the money, but gave the city credit for $5,101.36 representing the cost to the city of its employees’ working hours in determining the total amount of deposits that had been unclaimed over a period of some twenty years. On this appeal by the State the only question is whether the city is entitled to the $5,101.36 credit. We agree with the chancellor.

There is no dispute either about the accuracy of the sum claimed by the city or about the fact that except for the passage of the unclaimed property statute the city would not have been required to comb its records for many years past to determine the total of some 7,893 unclaimed deposits. The State, however, makes two arguments against the city’s asserted “bookkeeping charge.” First, the city admits that no charge at all would have been made against any former customer who turned up and claimed the amount of his deposit. Hence, the State argues, the charge is merely an administrative expense that has already been included in the city’s rates for the sale of electricity and should not be charged a second time to the State. Second, the charge was not made until after the unclaimed deposits became reportable under the unclaimed property statute and should be disallowed on the court’s reasoning in Boswell v. Samson Banking Co., 368 So. 2d 547 (Ala. Civ. App. 1978).

This is really a single argument, which we do not find convincing. The testimony is that although the city does refund dormant deposits to its customers on request, the matter of looking up a single account for a known customer is trivial. By contrast, if the unclaimed property act had not been passed there would have been no occasion for the city to ascertain the total amount of 7,893 unclaimed deposits, and therefore no extra expense. There is also proof that the city could not have anticipated such an outlay in its budget before the statute was adopted. Hence the rates charged to the utility customers were not fixed in contemplation of such an extraordinary one-time expense. As for the Boswell case, there the court merely rejected a bank’s afterthought by which it tried to impose fictitious monthly service charges upon dormant accounts against which no such charges had been made until the state enacted the Uniform Unclaimed Property Law.

The really controlling consideration is that it is fair, it is reasonable, to impose the charge in question on the State rather than on the city. It is a platitude in the law, often brought in as a makeweight, that when one of two innocent persons must suffer, the loss should be borne by the one whose conduct induced the loss. Pine Bluff Nat. Bank v. Parker, 253 Ark. 966, 490 S.W.2d 457 (1973); Snuffy Smith Motors v. Universal C.I.T., 236 Ark. 954, 370 S.W.2d 808 (1963). This case is an instance in which the principle should be followed. By the passage of the unclaimed property statute the State, quite properly it is true, sought to gather into its treasury windfalls that would otherwise have been received by the City of North Little Rock and countless other institutions holding unclaimed property. The statute, however, imposed a financial burden on this particular city which it would not have incurred had the law not been passed. In the circumstances it is just that the State should not reap the benefits of its statute without also bearing its accompanying burdens.

Affirmed.


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

text:
    John B. DALRYMPLE, Jr. and Barbara DALRYMPLE v. ROYAL-GLOBE INSURANCE COMPANY
    83-129
    659 S.W.2d 938
    Supreme Court of Arkansas
    Opinion delivered November 7, 1983
    [Rehearing denied December 5, 1983.]

      Jones i? Petty, for appellants.

      Barber, McCaskill, Amsler, Jones ¿r Hale, for appellee.

      Adkisson, C.J., and Purtle, J., would grant rehearing.

   Darrell Hickman, Justice.

We are asked to decide if a mortgagee, that is named as a loss payee in a hazard insurance policy, is, as a matter of law, an “insured” and, consequently, immune from suit by the insurance company for negligence in causing damage to the property. The trial court found that the loss payee was not and, therefore, granted the appellee, Royal-Globe Insurance Company, summary judgment. We agree with that decision and affirm the trial court.

The facts are complicated. John Dalrymple, the plaintiff in this suit, designed and built some apartments in Pine Bluff, Arkansas, which he sold to Gary Ross on March 1, 1978. The contract of sale required that Ross obtain insurance on the property for “loss by fire and other hazards and contingencies.” Royal-Globe wrote the policy and John B. Dalrymple was listed as the loss payee. A fire occurred on March 18, 1978, in one of the apartments rented by Rodney and Earlean Fields. Apparently the cause was defective wiring near the water heater. Royal-Globe paid Dalrymple and Ross for their loss, and that payment is in no way disputed. Royal-Globe sought reimbursement for the loss from Dalrymple in August, 1978, but he refused to pay Royal-Globe.

The Fields sued Ross in October of 1979, and Ross, who was actually acting for the insurance company under its right of subrogation, filed a third party complaint in February of 1980, against the Dalrymples. (Ross had a claim for $100, which was the deductible.) Later the Fields amended their complaint to seek punitive damages against Dalrymple. A Jefferson County jury awarded the Fields $6,000 compensatory damages and $7,500 punitive damages, finding 15% attributable to Ross and 85% to Dalrymple. The jury also awarded Ross $10,000 in compensatory damages against Dalrymple, but no punitive damages. Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 363 (1982). That case is still pending in Jefferson County Circuit Court. In May of 1981, Dalrymple filed this damage suit against Royal-Globe for failing to defend him in the other lawsuit and for suing him in violation of its contractual duty. Royal-Globe moved for summary judgment and it was granted, the judge finding that as a matter of law Dalrymple did not have any liability insurance under the policy which Ross purchased.

The appellant makes several arguments on appeal but essentially it is argued that Dalrymple was an “insured” and that Royal-Globe cannot sue its own “insured” to recover for a loss. That is undisputedly a correct statement of law. 5A Appleman on Insurance, § 4055 (1972). The problem is that Dalrymple was not an “insured” in every sense under the policy. He did not buy the insurance, he was simply a named loss payee, and there is no provision in the policy that provides that a loss payee is given any liability protection. The policy is a standard one. 5A J. Appleman, supra, § 5401 (1970), states that when a policy contains a standard mortgage clause it is considered that, “the insurer has entered into a separate contract with mortgagee just as if the latter had applied for insurance entirely independent of the mortgagor.” But there is no authority for the proposition that a loss payee is an insured for all purposes. A loss payee is entitled to enforce his right to payment for property loss against the insurer, but there the right ends; it does not grant immunity to a loss payee that causes the loss.

The appellants cite Federal Ins. Co. v. Tamiami Trail Tours, Inc., 117 F.2d 794 (5th Cir. 1941), as a case in point. Tamiami bought a bus from White Motor Company and insured it with Federal Insurance Company with a standard loss payee designation to White Motor Company and a financial institution. The bus burned because of a defect in the construction of the bus. The Court held that White Motor Company was an “insured” under the policy and entitled to the benefits of that relationship and in the absence of fraud or gross negligence could not be denied recovery. That was essentially an extension of the public policy that no right of subrogation exists by an insurer against its own insured. Otherwise, most policies of insurance would not be paid. It is our judgment that the reasoning of the Court in Tamiami should not be followed. A loss payee is not an insured in the usual sense of the word but simply a loss payee who is entitled to payment for loss of his property interest; there is no immunity from liability for negligence. A loss payee seeking the benefit of liability protection should pay for it.

It is also argued that summary judgment should not have been granted because it is a disputed fact whether Ross was actually supposed to secure an insurance policy that provided Dalrymple with liability insurance. United States Fidelity and Guaranty Co. v. Aetna Casualty & Surety Co., 418 F.2d 953 (8th Cir. 1969), is cited for the proposition that where a buyer and seller mutually agree that the buyer will obtain liability insurance for the property, then the insurer cannot be subrogated against one of those parties. That is not a question in this suit between Dalrymple and Royal-Globe in which Ross is not a party. Essentially there are no substantial disputed facts and the court was correct in entering the summary judgment.

Affirmed.

Adkisson, C.J., and Purtle, J., dissent.

John I. Purtle, Justice,

dissenting. I would reverse this case. The Dalrymples were named beneficiaries in the policy written by Royal-Globe. It was the insurance company that instituted this action against the Dalrymples but it did so in the name of its named insured, Gary Ross. This was a subterfuge whereby the insurance company sought to recover from the additional insureds (the Dalrymples) under the Ross policy, which had been taken out (at least in part) at the request of Dalrymple.

In Arkansas a mortgagee or lienholder acquires a vested right under the standard loss payee clause of an insurance policy procured by the mortgagor. Insurance Underwriters’ Agency v. Pride, 173 Ark. 1016, 294 S.W. 19 (1927). The mortgagee’s interest cannot be destroyed by a settlement between the carrier and the mortgagor. Insurance Underwriters’ Agency v. Pride. To allow the appellee insurance company to recover by subrogation against its own insured is but to encourage all insurers to look for negligence on the part of their insureds and, if found, refuse to pay a claim otherwise covered by the contract. We have previously held that a loss payee clause in favor of a mortgagee creates an insurer-insured status. Even the appellee in this case admits that an insurer cannot claim subrogation against its own insured (p. 23, appellee’s brief). Appellee then proceeds to create an exception to the rule when the mortgagee is also the builder.

Neither the appellee nor the majority opinion cite any case where the Supreme Court of Arkansas has allowed an insurer to collect damages from its additional insured, the mortgagee. In my opinion public policy alone would prevent the insurer from recovering its loss from an insured after it had paid the insured (as Royal-Globe did with Dalrymple). Payment was made to Ross and Dalrymple in accordance with the terms of the policy. Needless to say an insurance company is not going to pay a property loss to an uninsured. So far as I am concerned the case of Federal Insurance Co. v. Tamiami Trail Tours, Inc., 117 F.2d 794 (5th Cir. 1941), clearly states the correct answer in cases where an insurer tried to collect from its insured. We have many times held that a loss payee mortgagee has the right to sue and collect on the policy of insurance issued to the mortgagor. Insurance Underwriters’ Agency v. Pride, supra; Boon v. Arkansas Farmers Mutual Fire Insurance Co., 224 Ark. 618, 275 S.W.2d 436 (1955).

I agree with the majority opinion holding that the appellant was not covered for liability insurance under Ross’ policy. However, I do believe the insurer should be liable to Dalrymple for the expenses incurred by him as a result of the filing of the subrogation claim. I feel the majority opinion is a grievous error which will prove to be a great hardship on people who have insurance to protect their property.

Adkisson, C.J., joins in this dissent.


text:
    THE BALDWIN COMPANY and Don SANDERSON v. THE CECO CORPORATION
    83-135
    659 S.W.2d 941
    Supreme Court of Arkansas
    Opinion delivered November 7, 1983

      Wright, Lindsey & Jennings, for appellants.

      Chester C. Lowe, for appellee.
   Darrell Hickman, Justice.

The issue in this case is a procedural one. The trial court granted the appellee, Ceco Corporation’s, motion to dismiss a third party complaint filed against it by the Baldwin Company. We affirm the trial court’s ruling for two reasons. First, the appellant has been unable to demonstrate that the trial court committed error on the admitted facts and pleadings in this case. Second, even if the Baldwin Company has a cause of action against Ceco, it has not been denied that by the trial court’s ruling.

The facts are somewhat complicated, as well as the legal issue. The legal issue is one of indemnification between contractors and it has given us some difficulty in the past. This suit was filed by Steve Faulkner, an employee of Ceco Corporation, who was a construction worker on the Savers Bank Building in Little Rock, Arkansas. Ceco was a subcontractor of the Baldwin Company, one of the appellants. Faulkner was injured when a piece of lumber fell on him from a load being lifted by a crane. Don Sanderson, the crane operator, is the other appellant. Faulkner was compensated through his employer, Ceco, by Workers’ Compensation. Then Faulkner sued the Baldwin Company, the general contractor, and Sanderson, alleging generally that the cause of the accident was the negligence of Sanderson, an employee of the Baldwin Company. The Baldwin Company filed a third party complaint against Ceco Corporation claiming that Don Sanderson was actually an employee that had been loaned to Ceco Corporation and that if Faulkner was injured it was the result of negligence of an employee of Ceco Corporation. It was alleged that Ceco Corporation had an indemnity agreement with Baldwin to reimburse Baldwin for any damages that Baldwin is liable for caused by an employee of the Ceco Corporation. Ceco filed a motion to dismiss alleging no cause of action.

The trial court granted the motion finding that the matter would resolve itself this way: If Sanderson were found to be an employee of Baldwin, then Ceco would not be liable; or, if Sanderson were found to be an employee of Ceco, then Ceco would not be liable because it had paid Workers’ Compensation to Faulkner, also one of its employees, and was immune from suit. The trial court further found that while an indemnity agreement existed between Ceco and Baldwin, that it provided only for reimbursement if Ceco alone was at fault and not if Ceco were jointly liable with Baldwin.

Just before the trial court ruled on this motion, Baldwin amended its third party complaint and alleged that Ceco was also liable because it failed to provide a safe place to work. We cannot say the trial court’s order must be reversed.

In a series of cases we have dealt with the problem of indemnification in similar situations and have announced certain principles. In the case of C. & L. Rural Electric Cooperative Corporation v. Kincaid, 221 Ark. 450, 256 S.W.2d 337 (1953), we held that a subcontractor could enter into an indemnity contract which would make it liable to a contractor for claims the contractor had to pay which were caused by the negligence of the subcontractor, or any of the employees of the subcontractor. We held such a cause of action was not one based in tort but in contract. That is, an employer that had paid Workers’ Compensation is not entitled to the immunity normally granted to one under the Workers’ Compensation Act if it agrees otherwise. Significantly, the Kincaid case held that the indemnitor (in this case Ceco) could be sued in a separate lawsuit after the indemnitee (in this case, Baldwin) has been found liable and ordered to pay damages. In Oaklawn Jockey Club, Inc. v. Pickens Bond Construction Company, 251 Ark. 1100, 477 S.W.2d 477 (1972), we found that in some cases there can be an implied indemnity agreement between a subcontractor and a contractor. We held it was improper to dismiss a cross-complaint to join, in a single lawsuit, the indemnitor (which in this case is Ceco). But, we did not overrule Kincaid. The Oaklawn case was criticized because of the confusion that would result to a jury having to decide the complex indemnity issues at the same time as determining the question of negligence. See H. WOODS, COMPARATIVE FAULT 13:15 (1978).

In the case of Larson Machine, Inc., et al v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980), we found that it was proper for a third party complaint (or cross-complaint) for indemnity to be served on a party in the direct suit for negligence. But we did not preclude a subsequent action. So we have two permissible avenues available to resolve such disputes.

Therefore, simply because the trial court denied the right of Baldwin in this case to join Ceco, the court did not commit reversible error, because Baldwin can eventually pursue that remedy if it is found to be liable and if the indemnity agreement provides that Ceco must reimburse Baldwin for the damages paid. Actually there is only One possible way Ceco can be held liable and that is if Ceco is found at fault for failing to provide a safe place to work — admittedly a tenuous possibilty. Since the appellant has been unable to demonstrate prejudicial error, the judgment of the trial court is affirmed.

The abstract of the record filed in this case by the appellant is not completely in compliance with Rule 9 of this court, since a verbatim transcription of numerous unnecessary pleadings was included. While we do not find a flagrant violation of Rule 9, we feel it necessary to point out that we do not overlook the discrepancy. See Oaklawn Jockey Club, Inc. v. Jameson, 280 Ark. 150, 655 S.W.2d 417 (1983).

Affirmed.

Adkisson, C.J., and Purtle, J., concur.

John I. Purtle, Justice,

concurring. The original complaint in this case sounded entirely in tort. The original answer and third party complaint sounded more in tort than in contract. Most of the allegations by the contractor against the subcontractor were allegations of negligence in the failure to furnish a safe place to work or that the subcontractor was negligent in such a manner as to proximately cause the injuries to its employee, Steve Faulkner, the original plaintiff. Faulkner did not assert a claim against his employer, Ceco (the subcontractor), and the appellants never sought compensation for their liability in tort to the injured Ceco employee. Ceco has no tort liability to the employee or to appellants. Tort liability arising out of workers’ compensation injuries between the employer and third parties has been extinguished. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982).

The appellants are arguing they are entitled to recover on a written indemnity agreement. This action is based upon contract, not tort. I believe the best procedure is to allow the tort action to be tried without including the contractual matter. I do not fully comprehend the majority opinion affirming this case and stating it is best to have both contract and tort tied together. It appears to me the logic of the majority opinion points to separate trials in spite of the statement about trying both at the same time.

Adkisson, C.J., joins in this concurrence.


author: Robert H. Dudley, Justice.

text:
    J. W. and Nina Ruth DOBBINS v. Nicholas HAYDEN
    83-131
    659 S.W.2d 946
    Supreme Court of Arkansas
    Opinion delivered November 7, 1983
    [Rehearing denied December 5, 1983.]

      Jeff Dobbins, for appellants.

      Highsmith, Gregg, Hart, Farris & Rutledge, by: Jo Hart and Linda Boone, for appellee.
   Robert H. Dudley, Justice.

This appeal is from a quiet title action involving twenty acres of unimproved and unfenced land in Stone County. The chancellor found a mutual mistake was made when the land was conveyed and ordered reformation of the deed. We reverse.

In 1936 Hale Hayden, the appellee’s father, sold 122 acres of land, including the disputed 20 acres, to the Landers brothers. The Landers paid taxes on all of the land described in the deed from 1937 until 1976 when the last of the brothers died. The personal representative then sold the land at public auction with confirmation by the probate court. All but the twenty acres was sold to the appellants. When the appellants discovered that the twenty acre tract was not included in the sale, they contacted the personal representative who obtained probate court approval to convey the twenty acres to them in 1977. The appellants have paid taxes on the land, including the twenty acres, since the date of the original conveyance. In 1978 the appellants discovered that, in 1966, Hale Hayden had deeded the twenty acres of land to the appellee and that both the appellants and the appellee had been paying taxes on the land since 1967. Appellants filed a suit to quiet title to the twenty acres claiming Hayden’s second deed was invalid. The appellee maintained that the twenty acres was included in the 1936 deed by a mutual mistake of the parties and sought reformation of that instrument.

The appellants contend there was not sufficient evidence to warrant a finding of mutual mistake in the 1936 deed. We agree.

In Gastineau, et al v. Crow, 222 Ark. 749, 262 S.W.2d 654 (1953), we stated:

... The law is well established that in order to reform a deed or other written instrument “the evidence must be ‘clear, convincing, unequivocal and decisive,’ and must establish the right beyond a reasonable doubt. [Citation omitted.] This rule does not require that the fact be established entirely beyond dispute. The only requirement is that there be more than a mere preponderance, and the evidence must be of sufficient weight to establish the issue beyond reasonable controversy or doubt.” [Citation omitted.]

We have also refused to reform a deed upon the ground of mistake unless it is clearly shown “that the mistake was common to both parties, and that the deed as executed does not express the contract as understood by either of them.” Cherry v. Brizzolara, 89 Ark. 309 (1909). “A unilateral mistake cannot be the ground for reformation.” Yeargen v. Bank of Montgomery County, 268 Ark. 752, 595 S.W.2d 704 (Ark. App. 1980).

Here, Hale Hayden testified that he signed the 1936 deed without reading it. He testified that he only intended to sell and that the Landers only intended to buy, tillable bottom land. The twenty acre tract is on a hillside. He claimed that he never relinquished ownership of the twenty acres. Since the other parties to the deed are all deceased, we must look at their actions to determine their intentions at the time of the transaction. The testimony at the trial revealed that, beginning in 1936, the Landers paid taxes on all 122 acres with the twenty acres being assessed as a separate call; they mortgaged the property, including the twenty acres; they leased the property to the appellants; they placed the property on the Soil Conservation map; and they cut timber off of the twenty acres. In contrast, Hayden mortgaged property that borders the twenty acres on three sides; yet he did not mortgage the twenty acres. He did not pay taxes on the twenty acres from 1937 until 1966 when he deeded it to his son.

In Cherry v. Brizzolara, supra, as here, we found that the defendant had every opportunity to discover the extent of the land covered by the deed description. In that case we said:

[I]f he did not do this and sold the property by metes and bounds,... he has no cause for complaint of which the courts can take notice .... [W]hen the means of information are open to both parties alike, so that by ordinary diligence and prudence each may be informed of the facts and rely upon his own judgment in regard to... the subject-matter of the contract, if either fails to avail himself of this opportunity, he will not be heard to say he has been deceived.

In Varner v. Turner, 83 Ark. 131 (1907) we found it significant that the parties to the deed died before a suit was brought and that the land was then owned by others, as here. We said:

After such a long lapse of time it should require a very strong showing to j ustify a court in reforming a written instrument of that kind in which other parties have now acquired rights. ‘The law wisely holds that there shall come a time even when the wrongful possessor shall have peace; and that it is better that ancient wrongs should go unredressed than that ancient strife should be renewed.’

Due to the length of time involved, the death of the buyers of the property and the lack of clear and convincing proof, we do not find sufficient evidence of a mutual mistake to justify reformation.

Reversed.


text:
    James WINEMAN v. Ronald Gene BREWER and Vickie Stamps BREWER
    83-146
    660 S.W.2d 655
    Supreme Court of Arkansas
    Opinion delivered November 7, 1983

      Wayne Dunn, for appellant.

      Dale Varner, for appellees.
   Robert H. Dudley, Justice.

Appellant James Wine-man and Patsy Ann Johnson cohabited from January of 1980 until July 7, 1982. On November 7, 1980, they had a child. Appellant, Patsy, and the child lived together until July 7, 1982, when Patsy left. Nine days later Patsy was awarded temporary custody by the Benton County Court, which ruled that Wineman had neither married Patsy nor established paternity. On August 7,1982, Patsy gave custody of the child to appellees who, on September 23, 1982, filed a petition for adoption. Four days later, Patsy filed a consent, waiver of notice, and entry of appearance. On October 13, 1982, an interlocutory decree of adoption was entered, setting February 10,1983, as the date the interlocutory decree would become final. On February 7, 1983, only three days before the decree became final, appellant petitioned to vacate the interlocutory decree and objected to the petition for adoption, alleging the unconstitutionality of §§ 6 and 7 of the Revised Uniform Adoption Act [Ark. Stat. Ann. §§ 56-206, 56-207 (Supp. 1983)], as it applies to putative fathers. The probate court allowed appellant to intervene and to enter his appearance the same as any other biological parent. As a result, the probate judge ruled that the constitutional issues were moot and the adoption case was tried on its merits. The probate judge granted the adoption. We affirm. Jurisdiction is in this Court pursuant to Rule 29 (1) (c).

Appellant has no standing to question the constitutionality of the statute since it was not applied to him in a discriminatory manner. He was given the same consideration afforded a mother who does not have custody. We do not reach the merits of his constitutional argument. A party may not obtain a decision on the validity of a statute on the ground that it impairs the rights of others. Lienhart v. Bruton, 207 Ark. 536, 181 S.W.2d 468 (1944). In this instance, any decision on the constitutionality of these sections would be merely advisory. Allen v. Titsworth, 279 Ark. 138, 649 S.W.2d 185 (1983).

On the merits of the adoption case, appellant contends that he was not given notice of the petition for termination of parental rights as required by Ark. Stat. Ann. § 56-220 (f) (Supp. 1983). This argument is without merit as the section applied, § 56-220 (c), does not require a separate petition for termination of parental rights but allows the parental relationship to be terminated by a court order in connection with an adoption proceeding if the requisite grounds are satisfied. In addition, he entered his appearance. See Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

Appellant next argues the probate judge erred in applying Ark. Stat. Ann. § 56-220 (c) (3) (Supp. 1983), which provides for the relinquishment of the rights of a parent and the termination of the parent and child relationship under certain circumstances. It provides “the relationship of parent and child may be terminated by a court order issued in connection with an adoption proceeding... on the ground ... that in the case of a parent not having custody of a minor, his consent is being unreasonably withheld contrary to the best interest of the minor.” (Emphasis supplied.) Appellant contends that, having surrendered his child pursuant to a court order rather than voluntarily, it would be unconscionable to consider him a parent not having custody within the meaning of this section. Appellant cites no authority and we decline to adopt his view of the statute. It is a common occurrence for one parent to be without custody as a result of a court order granting custody to the other. The General Assembly could have provided the section would apply only to parents who are voluntarily without custody but chose the plain language “in the case of a parent not having custody of a minor.” The note of the original drafters of the act, the National Conference of Commissioners on Uniform State Laws, reflects that the construction urged by appellant was not contemplated by the drafters. It provides:

The final ground listed in subsection (c) concerns unreasonable withholding of consent to adoption. It can be used in a case where a step-parent and the mother are in custody of the child and the natural father refuses to give consent and withholding of consent is found by the court to be contrary to the best interests of the child. It cannot be used, however, to excuse the absence of consent of a parent who is in legal control of his child or who has custody of the child.

Uniform Adoption Act (U.L.A.) § 19.

Appellant’s last argument is that the probate judge’s finding that he unreasonably withheld his consent contrary to the child’s best interest is unsupported by the evidence. However, we note the extensive findings of fact supporting his decision, including references to appellant’s employment history, his struggles with alcohol, his living arrangement at the time of the hearing, and the fact that the child’s mother had already consented to the adoption. In light of these findings, we cannot say the probate judge was clearly erroneous. ARCP Rule 52, Ark. Stat. Ann. Vol. 3A (Repl. 1979); Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983).

Affirmed.


text:
    Benny MURRAY v. STATE of Arkansas
    CR 83-87
    659 S.W.2d 944
    Supreme Court of Arkansas
    Opinion delivered November 7, 1983

      Jack T. Lassiter, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant and his wife were initially convicted of the crimes of sale of marijuana and possession of marijuana with intent to deliver. We affirmed those convictions. Murray & Langford v. State, 275 Ark. 46, 628 S.W.2d 549 (1982). Subsequently, we granted leave for appellant to pursue a claim of post-conviction relief based upon the allegation of ineffective assistance of counsel. The circuit court heard the claim and denied relief. We affirm. Jurisdiction is in this Court pursuant to Rule 29 (1) (e).

Appellant’s sole argument is that his Sixth Amendment right to effective counsel was violated because his attorney had a conflict of interest as a result of the dual representation of appellant and his wife.

Appellant’s trial attorney, Lanny Solloway, had represented appellant and his wife in other criminal and civil matters for a period of four years. No conflict had surfaced during that time. Appellant and his wife both retained the attorney and both paid him out of a joint bank account. The attorney and appellant appeared at a hearing on December 17, 1980, and appellant mentioned no possible conflict. They conferred at other times and there was no mention of a conflict. At the May 5, 1981, trial there was direct and circumstantial proof that appellant, Ben Murray, was guilty of both the sale and possession of marijuana. It is set out in Murray & Langford v. State, 275 Ark. 46, 628 S.W.2d 549 (1982) as follows:

That sale took place outside a motel. Several undercover officers participated in arranging the “buy.” Lee Smith, a woman who was cooperating with the officers, telephoned Ben, who agreed to bring a bag of marihuana to room 241 at the motel in about 45 minutes. He duly appeared in a pickup truck with two women, got out of the truck, and knocked on the door of room 241. Lee Smith came to the door and went outside with Ben to complete the purchase. She testified that Bed said Bunny was driving the truck.
A purchase was arranged with the cooperation of Debra Patterson, who had previously lived in the mobile home with the defendants. Debra telephoned early that evening and arranged with Bunny that Debra would come out to pick up some jewelry she had left there and to buy a bag of marihuana. She then went to the mobile home accompanied by another woman, undercover officer Weaver. Each woman bought a bag of marihuana from Bunny, for $40 apiece. There was testimony that Bunny got the marihuana by going to the couple’s bedroom, where Ben was then talking on the telephone. During the transaction Bunny told Ms. Weaver that if she bought drugs in quantity Ben might cut the price.

After the State put on the above proof and rested its case-in-chief, the appellant told his attorney that the whole drug operation was his wife’s and not his. The appellant did not testify at the trial nor did he testify at the post-conviction hearing. During the trial there was neither objection, nor claim, nor notice to the court of any potential conflict. The alleged conflict was not mentioned until the post-conviction proceeding was commenced on December 20, 1982, over 17 months after the trial.

Joint representation does not inherently deprive a defendant of the effective assistance of counsel. Glasser v. United States, 315 U.S. 60 (1942). “Ordinarily, when a husband and wife are tried together the defenses would be consistent rather than conflicting. Where defenses are not conflicting, a unified position, with a single attorney, may give more weight to a defense theory, rather than less.” United States v. Johnson, 569 F.2d 269 (5th Cir. 1978). When neither the defendant nor the attorney gives the trial court any notice of a conflict, the defendant must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Cuyler v. United States, 446 U.S. 335 (1980). Foreclosure of an alternate strategy or defense does not constitute the requisite “actual” conflict of interest unless the alternate defense is at least plausible. United States v. Johnson, supra. Also, some additional showing may be required to establish a constitutional violation in joint representation by retained counsel. United States v. Huntley, 535 F.2d 1400, n. 10 at 1406 (5th Cir. 1976); United States v. Johnson, 569 F.2d 269, n. 3 at 272 (5th Cir. 1978). In the case at bar there was direct and circumstantial evidence of appellant’s active participation in the crimes and the now suggested alternative strategy of appellant’s taking the stand to blame all wrongdoing on his wife is not plausible. Since the alternative strategy was not plausible the conflict was not actual or significant. United States v. Huntley, supra. Appellant’s refusal to testify at the post-conviction hearing is demonstrative of the soundness of our position for, even though he had the burden of proof, the appellant obviously did not want the alleged alternative strategy to be subjected to the scrutiny of cross-examination.

Even if the case presented an actual conflict the relief would be denied for yet another reason. The Sixth Amendment right to counsel may be knowingly, intentionally and voluntarily waived. Here appellant knew of the alleged conflict, intentionally did not disclose it and voluntarily proceeded with his retained counsel. “Appellant cannot now, after knowingly completing the trial with such counsel, urge that he was prejudiced.” United States v. James, 505 F.2d 898 (5th Cir. 1975), quoting from Nelson v. United States, 415 F.2d 483 (5th Cir. 1969), cert. den. 396 U.S. 1069 (1970).

Affirmed.


author: Steele Hays, Justice. Robert H. Dudley, Justice,

text:
    Kerry OLSON v. Ramona RIDDLE
    83-110
    659 S.W.2d 759
    Supreme Court of Arkansas
    Opinion delivered November 7, 1983

      Bullock, Hardin <b McCormick, for appellant.

      Mobley ir Smith, by: William F. Smith, for appellee.
   Steele Hays, Justice.

Ramona Riddle filed this suit to recover unpaid rent from Kerry Olson under a six-month lease of her Russellville home. She claimed additional damages as the result of deliberate destruction of the dwelling and was permitted to amend her complaint just before trial to seek punitive damages. The jury fixed her loss at $630 for unpaid rent, $2,600 for property damage and $2,500 for punitive damages. On appeal we affirm.

Kerry Olson asserts there was error in permitting an amendment to the complaint two days before trial seeking punitive damages. We disagree. ARCP Rule 15 permits a party to amend his pleadings at any time without leave of court, although the amendment is subject to being stricken if prejudice or undue delay would result. Evidently the trial court found neither prejudice nor delay would be caused by the amendment and we find no merit in appellant’s argument.

Next, Olson contends it was wrong to allow testimony that marijuana was found on the premises. We find no reversible error. There was substantial testimony, barely refuted, that the Riddle dwelling was in excellent condition at the time Olson rented it; that during his occupancy there were loud drinking parties lasting into the morning hours; that screens were torn off the windows and bent; that holes were knocked in most of the doors and walls, carpet ripped up, a new stove and dishwasher were damaged; that drapes and wallpaper had been pulled down and garbage and refuse had been thrown into the air vents; that filth and discarded articles were left behind and, in short, the house was a shambles. Two witnesses identified evidences of marijuana.

Olson argues the references to marijuana were improper and prejudicial. No doubt they were, and while it is not clear for what purpose this evidence was received, the trial court has discretion in ruling on the relevance of evidence and we will not reverse in the absence of an abuse of discretion. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). Where willful abuse of another’s property is alleged, that issue encompasses wantonness, and it is of common experience that the use of drugs and alcohol often manifests itself in the misuse of property. Kerry Olson admitted knowledge that marijuana was in the house and acknowledged telling Ramona Riddle that the damage was caused by his inability to control his friends: “They came in droves ... everybody would get to drinking and would get wild, and I wasn’t man enough to ask them to leave.” We find no abuse of discretion under the circumstances of this case.

The final argument is that evidence of willful intent was insufficient to submit the issue of punitive damages to the jury. We disagree. The gist of the argument is there was no evidence that Olson had any malicious intent to damage the property. But malice is not dependent on explicit proof, it may be inferred from a conscious indifference to attendant circumstances. This has long been the rule in Arkansas. St. Louis, Iron Mountain and Southern Railway Co. v. Dysart, 89 Ark. 261 (1909).

Here, aside from the overall abuse of the dwelling, the jury could have found specific malice in the fact that a ventilated grill was removed to permit the deposit of refuse, including garbage, in an air conditioning duct and the grill then replaced — which could only have been done deliberately.

If for no other reason, the submission of the punitive issue was justified by the frank admissions of Kerry Olson, of which the following is only a part:

Q. And, you admit that three doors had holes punched in them, not by you but by your friends?
A. That is true.
Q. Were those holes in those doors punched in there deliberately?
A. Well, I had a Christmas party with a few couples coming over . . .
Q. Just answer my question.
A. Okay. They weren’t done by me but by some of my friends.
Q. Was it done intentionally or was it accidental?
A. Okay. It would be an accident because what they did — after my friends had been drinking, they started throwing lemons.
Q. Started what?
A. Lemons.
Q. Throwing lemons in the house?
A. Lemons. This was after everybody got wild.
Q. Lemons?
A. Lemons. You do — they were drinking tequila —
Q. Yeah.
A. — and in order to drink tequila you’ve got to have a little shot bottle and a lemon that you pop on there and then you swallow it, but after a few of my friends had had a few of those, they started getting full lemons and throwing them at people. Some people ducked and it hit the door. That’s how this happened.

It hardly need be said that it is immaterial whether the damage to appellee’s property was directly attributable to Kerry Olson, or to the misconduct of his friends, in which he acquiesced, it is chargeable under the circumstances to him, and the trial court was fully justified in submitting that issue to the jury.

The fact that some of the damage may have been the result of abusive mischief, rather than intentional malice, does not render it conscionable under the law if the tolerated conduct is such as would “naturally and probably result in injury” and was continued in “reckless disregard of the consequences.” See AMI 2217. Corpus Juris Secundum expresses the rule thus:

111 will, spite, or hostility toward the person injured is not a necessary ingredient of legal malice; it is sufficient that the act be committed under circumstances of general wantonness and outrage or recklessness, even though the spirit in which the act is done is one of wanton sport or mischief merely, or only in an intent to annoy, harass, and tease. 25 C.J.S. p. 1143 § 123.4.

The judgment is affirmed.

Purtle and Dudley, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. The fundamental duty of an appellate court is to insure that a fair trial is held. Because of two prejudicial errors, the trial under review was unfair. I would reverse and remand for a new trial.

The appellee, plaintiff below, filed suit for arrearages in rent and damages to the rental property. The issues were whether the appellant had paid his rent and whether he had damaged the rental property. There were no other issues. Yet, the appellee was allowed to call a chemist to testify that a substance found at the rental property was marijuana. The testimony of the chemist did not tend to make the existence of any fact at issue more probable or less probable. It was not relevant evidence. Unif. R. Evid. 401, Ark. Stat. Ann. § 28-1001 (Repl. 1979). The evidence, not relevant, was not admissible. Unif. R. Evid. 402. Appellee’s sole purpose in calling the chemist was to unfairly prejudice the jury against the appellant.

A second error was the award of punitive damages. The majority opinion does not state whether affirmance of punitive damages is based on the theory of contract or on the theory of tort.

For more than a century we have held that punitive damages are not ordinarily recoverable for breach of contract. Snow v. Grace, 25 Ark. 570 (1869); McClellan v. Brown, 276 Ark. 28, 632 S.W.2d 406 (1982). The exception is where there is a willful or malicious act in connection with a contract. See Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981). The evidence, which is set out in the majority opinion, does not show any affirmative act by the appellant; instead, it proves a failure to act. A failure to act will not support an award of punitive damages in a contract action. McClellan v. Brown, supra. Therefore, the punitive damages cannot be affirmed on the theory of contract.

Correspondingly, appellant’s breach of his rental contract should not be treated as a tort. In Findley v. Time Ins. Co., 264 Ark. 647, 573 S.W.2d 908 (1978), we stated:

Prosser has pointed out that an action in tort cannot ordinarily be based upon a breach of contract which amounts to mere nonfeasance, which means not doing the thing at all, as distinguished from misfeasance, which means doing it improperly. “Much scorn has been poured on the distinction, but it does draw a valid line between the complete non-performance of a promise, which in the ordinary case is a breach of contract only, and a defective performance, which may also be a matter of tort.” Prosser, Torts, § 92 (4th ed., 1971). We recently applied that very distinction, citing Prosser, in Morrow v. First Nat. Bank of Hot Springs, 261 Ark. 568, 550 S.W.2d 429 (1977).

The lack of affirmative action by a defendant does not always prevent an award of punitive damages. There can be vicarious liability for punitive damages. The general rule is set out in 58 Am.Jur.2d § 458 as follows:

Generally, where there is an attempt to hold one person civilly liable for the negligence of another, it must be made to appear that the relation of principal and agent or master and servant existed between the two at the time the tort was committed, and that the tortious act was committed in the course of employment or within the scope of the agency, or that the person sought to be held responsible was engaged in a joint venture or enterprise with the one who was negligent.

We have held that an award of punitive damages would be justified against an employer railroad for the acts of its servants if the jury found that “the tort or wrong of the servant . . . was in the line of his employment, and was willful, wanton, or malicious.” St. Louis, I.M. & S. Ry. Co. v. Wilson, 70 Ark. 136, 144, 66 S.W. 661 (1905).

The rule has changed little over the years. In Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1982), we held that “a corporation may be held liable for exemplary or punitive damages for such acts of its agents or servants acting within the scope of their employment as would, if done by an individual acting for himself, render him liable for such damages.” Id. at 1044.

However, we adopted a different rule when the principal is an individual. In Foster v. Pitts, 63 Ark. 387, 38 S.W. 1114 (1897), we held that an individual principal is not liable for punitive damages “unless it appears that he aided, adopted, or ratified the malicious act of the agent with full knowledge of the facts.” Id. at 393. Here, the appellant did not aid in, nor adopt, nor ratify the damage done by his guests. He should not be liable for punitive damages. I would reverse and remand for a new trial.

I am authorized to state that Mr. Justice Purtle joins in this dissent.

       Record, p. 205.


text:
    Thomas Winford SIMMONS v. STATE of Arkansas
    CR 82-18
    659 S.W.2d 578
    Supreme Court of Arkansas
    Opinion delivered November 7, 1983

      Hollingsworth ir Heller, P.A., by: Ron Heller, for petitioner.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for respondent.
   Per Curiam.

Petitioner Thomas Winford Simmons was found guilty of capital felony murder in the Circuit Court of Crawford County and sentenced to death. We affirmed. Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983). He sought a writ of certiorari before the United States Supreme Court which was denied October 3, 1983. The Governor then set execution for November 11, 1983. Petitioner now seeks a stay of execution so that he may prepare and file a petition for postconviction relief pursuant to A.R.Cr.P. Rule 37.

The petition is denied. When a petitioner seeks a stay of execution based on the contention that he is entitled to postconviction relief, he must also file the petition setting out the grounds for that relief. The mere allegation that there are meritorious grounds to be raised is not good cause to grant a stay of execution.

Petition denied.


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

text:
    Johnny WILLIAMS v. STATE of Arkansas
    CR 83-96
    659 S.W.2d 948
    Supreme Court of Arkansas
    Opinion delivered November 7, 1983
    Petitioner, pro se.

      Steve Clark, Atty. Gen., by: Michael E. Wheeler, Asst. Atty. Gen., for respondent.
   Per Curiam.

Petitioner Johnny Williams was convicted by a jury of second degree murder and sentenced to a term of 20 years imprisonment in the Arkansas Department of Correction with five years suspended. The Court of Appeals affirmed. Williams v. State, not designated for publication (March 16, 1983). Before this trial, petitioner’s probation on charges of breaking or entering and theft of property was revoked and he was sentenced to ten years imprisonment. The Court of Appeals also affirmed the revocation. Williams v. State, not designated for publication (March 2, 1983). The two sentences were ordered served consecutively. He now seeks permission to proceed in circuit court for postconviction relief with regard to both the revocation and the murder conviction.

Petitioner was originally placed on three years probation on the charges of breaking or entering and theft of property. When his probation was revoked, he was sentenced to ten years in prison. He contends that it was unlawful for him to be sentenced to a term longer than the probationary period. We disagree. The present law, Ark. Stat. Ann. § 43-2332 (Supp. 1983) which in pertinent part was also in effect at the time petitioner committed the crime for which he was placed on probation) provides that the sentence imposed upon revocation of probation is limited to the sentence imposed or any lesser sentence which might have originally been imposed. In petitioner’s case, however, no sentence was imposed; he was simply placed on probation. The term “probation” is defined in Ark. Stat. Ann. § 41-801 (2) (Repl. 1977) as:

“Probation” or “place on probation” means a procedure whereby a defendant, who pleads or is found guil ty, is released by the court without pronouncement of sentence but subject to the supervision of a probation officer, (emphasis added)

Hence, the court was free to sentence him to any term it might have imposed originally. McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980). Since the ten-year sentence imposed could have been imposed when he was convicted, we find no error.

With regard to his conviction for murder, petitioner alleges that a conspiracy to conceal evidence existed among the witnesses to the shooting. He further contends that the police did not properly investigate the crime and that witnesses gave conflicting testimony. All these allegations are essentially attacks on the sufficiency of the evidence. Challenges to the evidence are a direct attack on the conviction which must be made on direct appeal. The issue is not cognizable under Rule 37. Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974).

Petition denied.

Hickman, Purtle and Dudley, JJ., dissent.

John I. Purtle, Justice,

dissenting. Petitioner entered a guilty plea on February 3, 1981, and was sentenced to three years probation. Subsequently his probation was revoked, and he was sentenced to ten years in prison. I think appellant correctly contends that it was unlawful for him to be sentenced to a term longer than the probationary period. I agree that sentencing is prescribed by substantive rather than procedural law.

The record shows that appellant entered a guilty plea and the court entered a judgment of three years to be served on probation. The majority simply ignores the fact that a judgment was entered. I have read the record. Written on a page entitled “Judgment and Order of Probation” is the following: “Entered a plea of guilty... placed on probation for a period of three years.” How can reasonable minds argue he was not sentenced? Ark. Stat. Ann. § 43-2332 (Supp. 1983) which deals with probation contains the following language: “Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence which might have been originally imposed.” This act has not been changed since 1979. McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980) specifically held “no sentence was imposed,” therefore, it is factually different from the present case. McGee tried to distinguish Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980) but failed. Culpepper is still valid law and complies with this dissent and our present law. Even if we reduced this second sentence for the same crime to three years the appellant still must serve his twenty year sentence. I am of the opinion we should follow the law. This court stated in Queen v. State, 271 Ark. 929, 612 S.W.2d 95 (1981): “Here, the plea was accepted and the term of probation was five years. Consequently, a later suspended sentence for ten years was improper.” Also, see Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981), to the same effect.

Therefore, under the statutes in effect in 1980, the trial court could not sentence petitioner to more than the term imposed, three years. Since petitioner’s sentence of 10 years was in excess of the maximum authorized by law, I would modify the sentence in accordance with A.R.Cr.P. Rule 37.1 (c) to a term of three years.

I am authorized to say that Hickman and Dudley, JJ., join me in this dissent.


text:
    June B. STUART v. Arthur G. STUART
    83-139
    660 S.W.2d 162
    Supreme Court of Arkansas
    Opinion delivered November 14, 1983

      James C. Cole, for appellant.

      Frierson, Walker, Snellgroveir Laser, by: Glenn Lovett, Jr., for appellee.
   George Rose Smith, Justice.

About 20 years after the parties were married Mrs. Stuart brought this suit for divorce, on the ground of indignities. Stuart did not contest the divorce, but he did resist his wife’s assertion that she was entitled to more than half of the marital property because she had been the principal breadwinner. This appeal is from the chancellor’s equal division of all the marital property, some of which had been acquired jointly and some in Mrs. Stuart’s name only.

At the time of their marriage Stuart was a painter and Mrs. Stuart a court reporter. Stuart suffered a work-related injury that kept him from working most of the time. He took care of the house and yard, did most of the cooking, worked when he was able to, and helped in his wife’s business by proofreading and delivering transcripts. Mrs. Stuart worked steadily as a regular or free-lance court reporter, earning about two thirds of the family income. She testified that she knew what is meant by a feme sole and as such intended to acquire separate property in her own name.

The chancellor was right in dividing the marital property equally. The appellant relies in part on our constitutional provision that a married woman may acquire and transfer property as if she were a feme sole, with such property being free from her husband’s debts. Ark. Const, art. 9, § 7 (1874). That provision was meant to put a wife on an equal footing with her husband in the acquisition and transfer of property, but it does not purport to clothe the wife with superior property rights in the event of a divorce.

Well before the many recent cases disapproving gender-based distinctions between spouses, we recognized the power of the court in a divorce case to divide property acquired by the joint efforts of the parties, even though title was in the name of only one spouse. Stephens v. Stephens, 226 Ark. 219, 288 S.W.2d 957 (1956). That principle has been embodied in our recent statute governing the division of marital property, Act 705 of 1979, for it directs the court to consider “services as a homemaker” (usually those of the wife) as a contribution to the acquisition of property during the marriage. Ark. Stat. Ann. § 34-1214 (A) (1) (8) (Supp. 1983). We have said that the new statute was made applicable to all cases filed after its effective date and necessarily affected property acquired before that date. Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981). If that were not so, equality between the sexes might not be achieved for a generation or more.

The constitutionality of similar statutes has recently been upheld in several states, not only because public policy supports the recognition of the homemaker’s efforts as contributing to the acquisition of property during the marriage, but also because under pre-existing law a married person had no reasonable expectation that his or her property would be immune from an equitable division upon termination of the marriage. Kujawinski v. Kujawinski, 71 Ill. 2d 563, 17 Ill. Dec. 801, 376 N.E.2d 1382 (1978); Fournier v. Fournier, 376 A.2d 100 (Me. 1977); Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496 (1974). We agree with those decisions.

As a second point for reversal the appellant argues that it is inequitable to divide the property equally when her earnings formed the greater part of the purchase price. To sustain that argument in this case would put the law right back where it was before gender-based distinctions were nullified, for the same contention would be made when it was the husband who had been the breadwinner — the usual situation.

Affirmed.


text:
    Sarah CRAGAR v. Mrs. Cecil JONES
    83-141
    660 S.W.2d 168
    Supreme Court of Arkansas
    Opinion delivered November 14, 1983

      Gordon ér Gordon, P.A., for appellant.

      Laser, Sharp ¿r Huckabay, P.A., for appellee.
   Darrell Hickman, Justice.

In this case we are presented with a classic case of lack of proximate causation. On January 29, 1979, Mrs. Cecil Jones’ automobile crossed the center line of the highway and collided with the truck driven by Sarah Cragar, the appellant. Admittedly Jones’ negligence caused the occurrence and admittedly Sarah Cragar was not hurt in the collision. Apparently, at Mrs. Jones’ suggestion, Cragar got out of her vehicle and walked up to Jerry Jones’ home. As she was walking on the sidewalk she slipped and fell on ice, sustaining injuries. She sued Mrs. Jones for those personal injuries and for property damage to her truck. The trial judge granted Mrs. Jones’ motion for summary judgment as to the claim for personal injuries. The summary judgment was granted purely on the pleadings and the legal issue of proximate causation: Did the negligence of Jones in driving her automobile cause the injuries sustained in the slip and fall? The trial judge held that there was no proximate causation and we agree.

Before an act can be the proximate cause of an injury the inj ury must be the probable and natural consequence of that act. Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545 (1983); Ben M. Hogan & Co. v. Krug, 234 Ark. 280, 351 S.W.2d 451 (1961). There was no issue for the jury presented since Mrs. Jones’ original negligence did not lead in natural sequence, without an intervening cause, to Cragar’s injuries. Kubik v. Igleheart, supra. It was not argued that it was a negligent act of Jones to suggest Cragar walk to the Jones home. It was argued that it was a jury question whether the original negligent conduct caused the ultimate injury.

Although proximate causation is usually a question for the jury, where reasonable minds cannot differ a question of law is presented for determination by the court. See Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983); W. Prosser, The Law of Torts, § 45 (4th ed. 1971).

Affirmed.

Adkisson, C.J., and Purtle, J., dissent.

John I. Purtle, Justice,

dissenting. Just who possesses a reasonable mind seems subject to debate. I feel I have a reasonable mind, and if so, then proximate cause was a matter for the jury to decide in this case. In quoting Prosser on torts we stated in Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983) that a jury question would be presented, “In any case where there might be reasonable difference of opinions as to the foreseeability of a particular risk, the reasonableness of the defendant’s conduct with regard to it, or the normal character of an interveningcause.” I also believe appellant’s attorneys have reasonable minds. Nevertheless the majority holds that we are not of reasonable minds. I disagree. I would reverse and remand for the purpose of allowing a jury to determine whether the injuries of the appellant were proximately caused by the appellee’s negligence.