text:
    Charles W. FERRELL v. STATE of Arkansas
    CR 90-205
    810 S.W.2d 29
    Supreme Court of Arkansas
    Opinion delivered May 20, 1991
    [Rehearing denied June 17, 1991.]

      Charles A. Potter, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Sr. Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This case comes to us following the conviction of the appellant Charles Ferrell for first degree murder and for felon in possession of a firearm. The jury, after hearing evidence of two prior felony convictions, assessed seventy-five years on the murder charge and twelve years on firearm possession, to run consecutively, plus a fine of $10,000. The trial judge entered judgment pursuant to the jury verdict.

The appellant now raises multiple issues for reversal. Finding no error or abuse of discretion by the trial court, we affirm the judgment.

The essential facts are these. At about three o’clock in the morning on March 3, 1989, outside a nightclub in Texarkana, Arkansas, called Mother’s Club, the appellant shot and killed the victim, Michael Hart. Immediately prior to the shooting, the appellant had been arguing with a girlfriend of his, Debbie Bellew. The victim tried to intervene and strong words were exchanged. Bellew left the argument. After she did so, the victim also began to leave when the appellant said, “Hey, M.F., you don’t think I will?” He added, “I’m serious.” He then pulled a pistol and shot the victim in the side of his head. The gunshot wound was a contact wound, according to the medical examiner. After the shooting, the appellant left the premises and later that morning surrendered to the authorities. The appellant testified at trial that he did not make those statements and that he meant to pistol-whip the victim when his gun discharged accidentally. He further testified as part of his self-defense contention that he thought the victim had a knife.

Prior to the killing, but that same night, Bellew had been with the victim “shooting up dope.” She testified that the victim had injected methamphetamine into his arm and had asked her to sell packets of the drug for him. Bellew was subsequently arrested and convicted for selling drugs in an incident unrelated to this case and at the time of the trial was incarcerated in the state penitentiary.

Severance

The appellant first argues that the trial judge abused his discretion in failing to sever the murder count from the firearm/ felon count for trial purposes. The appellant moved for severance prior to trial on the basis that he had previously been convicted of two felonies: shooting into a habitation and escape from the county farm. He argued that proof of shooting into a habitation, while necessary to prove the firearm count, would unduly prejudice his murder trial.

The rule governing severance states:

Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.

A.R.Cr.P. Rule 22.2(a). We have said that under this rule a defendant has a right to severance when two or more offenses have been joined solely on the ground that they are of the same or similar character. See Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990). A severance motion will be denied if the two offenses were part of a single scheme or plan or if both offenses require the same evidence. Id. Otherwise, granting or refusing a severance is within the discretion of the trial court. Id. The decision by the trial judge will not be disturbed absent an abuse of discretion. See Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6 (1981).

The firearm/felon statute under which the appellant was charged states that no person shall possess or own a firearm who has been convicted of a felony. Ark. Code Ann. § 5-73-103 (Supp. 1989). Two elements of proof are necessary for a conviction under this statute: possession or ownership of a firearm and prior conviction of a felony. While possession or ownership of a pistol certainly is a common element with murder perpetrated by means of a firearm, such as we have in this case, conviction of a prior felony has nothing to do with the elements of proof required for first degree murder. Moreover, the presentation of a prior conviction to the jury which is required for a firearm /felon conviction runs the risk of prejudicing the trial of the joined offense, at least to some degree.

At trial the state introduced without further comment a copy of the appellant’s California conviction for shooting into a habitation. The appellant had been sentenced to three years probation with nine months to serve. The appellant did ask for a cautionary instruction limiting the evidence of the prior conviction to the firearm count and not the murder count. The trial judge gave that instruction at the end of the trial. It also bears mention that the appellant testified at the trial. On cross-examination the state sought to impeach him by reference to the two prior convictions, shooting into a habitation and escape, under A.R.E. Rule 609. Thus the California shooting conviction was brought to the attention of the jury a second time in the context of impeachment.

The trial judge erred initially in refusing to sever the firearm/felon count from the murder count for trial. An offense based in part on a prior conviction is not “part of a single scheme or plan” with first degree murder, as Rule 22.2(a) requires. And the two offenses do not require the same evidence, which we cited in Brown v. State, supra, as an alternative reason for upholding the trial judge’s decision to deny severance.

Nevertheless, as the trial progressed in this case, any prejudice to the appellant’s first degree murder trial resulting from the joinder was significantly reduced. The evidence of murder against the appellant, with three eye witnesses testifying, was overwhelming. Moreover, the appellant voluntarily took the stand, at which time the same California conviction was brought out on cross-examination. This might suggest that the appellant was compelled to take the stand after his firearm/felon conviction was introduced which he had not intended to do. But there was at least one other consideration which would just as easily have led to his testimony. The appellant had raised accidental discharge and self-defense as defense, and he needed to explain them. Prejudice due to his past record could not have been a primary concern to the appellant, since by taking the stand he subjected himself to impeachment for a second felony conviction — escape. We note further that the appellant did not argue the issue of compelled testimony to the trial court or in this appeal.

Two other circumstances minimize the prejudice. A curative instruction was given by the trial judge limiting the jury’s consideration of the prior shooting conviction to the firearm/felon count. And the appellant did not attempt to stipulate to a prior conviction or otherwise move to eliminate reference to the specific California offense.

Previous cases by the Arkansas Court of Appeals have held that a trial judge’s refusal to sever a firearm/felon offense from a second offense does not constitute an abuse of discretion. See Rubio v. State, 18 Ark. App. 277, 715 S.W.2d 214 (1986) (sale of cocaine as second offense); Parker v. State, 18 Ark. App. 252, 715 S.W.2d 210 (1986) (burglary and theft as second offenses). The rationale given for those decisions was judicial economy, because severance would require two trials with overlapping facts and witnesses. This court, however, has not squarely dealt with the issue, although it was raised in a 1984 case. See Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984). Due to mootness because the appellant had served his sentence and a dissenting opinion, a majority of this court did not affirm joinder of a firearm/felon offense with a second offense for trial. The Guy case, as a plurality decision, is not binding precedent and in order to eliminate any suggestion that it is, we overrule it.

We hold today that the denial of the motion to sever was error under Rule 22.2(a). Because the decisions of Rubio v. State, supra, and Parker v. State, supra, run directly counter to this holding, we overrule them. We further hold that any prejudice resulting from the refusal to sever was rendered harmless by the circumstances of this case and particularly by the fact that a curative instruction was given, the appellant voluntarily took the stand where his prior California conviction was brought out on cross-examination, and no further objection was made by the defense counsel that the appellant was in any way compelled to testify by introduction of the California conviction.

Directed Verdict

The appellant argues that the trial judge erred in refusing to grant his motion for a directed verdict. The record reveals, however, that although the appellant made his motion at the end of the state’s case, he failed to do so at the conclusion of all the evidence. He therefore waived his right to have sufficiency of the evidence considered on appeal. See A.R.Cr.P. Rule 36.21(b); Remeta v. State, 300 Ark. 92, 777 S.W.2d 833 (1989).

Drug Offenses of the Victim

The appellant advances a contention of further abuse of discretion in the trial court’s refusal to allow the testimony of a defense witness that the victim injected methamphetamine into his arm the night he was killed and further that he solicited the witness to sell drugs for him.

Debbie Bellew testified to the victim’s drug use and solicitation to sell before the second witness was proffered by the defense. Since this evidence had been presented to the jury through Bellew’s testimony, we reject the argument that the exclusion of a second witness’s testimony along the same lines prejudiced the appellant. Moreover, the relevancy of this testimony was highly questionable, as the trial judge aptly pointed out.

We have reaffirmed recently that the exclusion of certain testimony cannot be considered prejudicial where the evidence was introduced by another witness. See Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). Here, the trial judge did not abuse his discretion in disallowing the testimony of the second witness.

Impeachment of Defense Witnesses

The appellant cites two instances in which the state impeached defense witnesses through its own rebuttal witnesses on what the appellant contends were collateral matters.

The first concerned the testimony of Debbie Bellew, who testified for the defense. She denied that she had said that she would never “turn snitch” against the appellant in the presence of a deputy sheriff. The state called the deputy sheriff as a rebuttal witness to impeach Debbie’s testimony and to show bias on her part. The deputy sheriff recalled that Bellew said she would not testify for the state against anyone.

The appellant raised a hearsay objection below but did not object on grounds of improper impeachment due to a collateral matter. The appellant now raises that objection. We have held that an appellant may not change his grounds for objection on appeal. See Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). In addition, we have held that facts that show bias are not collateral. See Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). We find no merit in the appellant’s argument.

Nor do we agree with the appellant on his second impeachment issue for essentially the same reason — the appellant has changed his argument on appeal. The appellant testified that he did not own firearms other than hunting rifles. A police detective was called as a rebuttal witness for the state and testified that he found a pistol in the appellant’s truck. The appellant did object to this testimony, but did so on the basis of a pre-trial stipulation and ruling by the trial judge. At no time at trial did he object on grounds of impeachment of a collateral issue. Indeed, he asked the trial judge to admonish the jury that the pistol was introduced solely for impeachment purposes. He is, therefore, foreclosed from raising the collateral matter objection for the first time on appeal. See Shaw v. State, supra.

The appellant raises a third impeachment issue over the cross-examination of a police detective, Richard Ates, who was called as a defense witness and was cross-examined on the background of a potential defense witness, David Langley. The state was led to believe that Langley would testify about a knife found at the crime scene. On cross-examination the prosecutor asked Ates about Langley’s past criminal record and use of aliases. As it happened, Langley was never called as a witness by the defense. Before Ates’s testimony, a defense witness had also been asked about Langley, and he testified to Langley’s use of aliases and criminal record, without objection from the defense.

We find no prejudice arising from the cross-examination of Ates, primarily because the questions objected to by the appellant as collateral matters had already been answered on cross-examination of a previous defense witness without objection. The appellant did not object at his first opportunity to do so. Failure to object to a matter at first opportunity waives any right to raise the point on appeal. See Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985).

Expert Witness

The last issue raised concerns the testimony of Ron Hoehn about firearms and the introduction of a .25 caliber pistol as demonstrative evidence. The murder weapon was a .22 caliber pistol, but the appellant testified that he had discarded it. Hoehn testified that he had owned a sporting goods business for a year which sold .22 caliber and .25 caliber semi-automatic pistols. Before that he had served five years in the Marine Corps where he acted as a marksmanship instructor for three years. He further testified that he had been “qualified” on several firearms while in the Corps and was familiar with the F.I.E. .22 caliber and .25 caliber semi-automatic pistols. He had no specialized training in F.I.E. firearms, but considered himself an expert on the technical aspects of the two pistols. He later testified that he was not an expert on F.I.E. firearms. He did testify that he had fired both pistols on several occasions and the only difference between them was a minute difference in the diameter of the barrel.

The state did not move to qualify Hoehn as an expert, and the trial judge did not recognize him as such but allowed his testimony over objections by the appellant. The state advised the court that Hoehn was testifying to lay the foundation for the introduction into evidence of the .25 caliber pistol so the jury could have some understanding of the weapon involved and could decide whether the weapon caused the abrasions on the victim’s face. The trial court overruled the appellant’s objections and admitted the pistol into evidence for demonstrative purposes only and not as the actual murder weapon. Hoehn proceeded to testify that with the safety on, the pistol could not accidentally fire.

The question raised on appeal is whether the trial j udge abused his discretion in permitting Hoehn to testify and in receiving the .25 caliber pistol into evidence. We note that the trial judge did not specifically recognize Hoehn as a firearms expert. But we further note that Hoehn had extensive experience with weapons, including small firearms, and considered himself an expert on the technical aspects of the pistols. In light of his technical knowledge and experience, Hoehn could have qualified as an expert with specialized knowledge to assist the jury in determining a fact in issue under A.R.E. Rule 702 or as a lay witness whose opinion was helpful in the determination of a fact issue under A.R.E. Rule 701. Under either rule Hoehn’s testimony on the two pistols was admissible, and we find no abuse of discretion.

Nor do we find grounds for reversal in the admission of the .25 caliber pistol into evidence for demonstrative purposes. We first observe that the decision to admit physical evidence is discretionary with the trial court and will be upheld, absent abuse of discretion. See Rasmussen v. State, 277 Ark. 238, 641 S.W.2d 699 (1982). Here, the testimony was clear that the pistol was introduced to demonstrate a point — not as the actual weapon used in the crime. And Hoehn’s testimony laid a sufficient foundation for the admissibility of the pistol, when he emphasized that single action semi-automatic pistols are basically the same, the only difference being the .22 caliber has a barrel of .221 inches in diameter while the .25 caliber has a diameter of .252 inches. That difference is clearly slight and cannot be readily discerned by casual observation. The trial judge was, therefore, correct in his ruling.

Affirmed.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Elbert GODWIN and Godwin, Churchman, Turner & Bonds, Ltd. v. Robert J. CHURCHMAN; Individually and d/b/a Churchman, Turner & Bonds, a Partnership; and Churchman, Turner & Bonds
    91-107
    810 S.W.2d 34
    Supreme Court of Arkansas
    Opinion delivered May 20, 1991

      Lyons & Emerson, by: Jim Lyons, for appellants.

      James A. McLarty, for appellees.
   Robert L. Brown, Justice.

The appellants (“Godwin”) appeal from two orders dismissing their complaint against the appellees (“Churchman/Turner/Bonds”). The trial court’s dismissals were premised on violation of the statute of limitations and failure to state appropriate facts under Ark. R. Civ. P. 8(a) and 12(b)(6).

We affirm in part and reverse in part and remand.

In June 1981 Godwin, who had an established accounting practice, began discussions with Churchman/Turner/Bonds, who were also accountants, about working together under a mutually agreeable business arrangement. Over the next three years, the accountants worked together as part of a corporation formed for that purpose — Godwin, Churchman, Turner & Bonds, Ltd. Though at least two meetings were held with counsel to fashion a business agreement, none was executed by the parties.

By the latter part of 1984 the business relationship between Godwin and Churchman/Turner/Bonds had deteriorated to the point that on November 9,1984, Turner advised Godwin and his attorney that Churchman/Turner/Bonds wished to terminate the business relationship and buy out Godwin. Godwin refused. On November 11, 1984, Churchman/Turner/Bonds individually tendered their resignations to Godwin. On November 16, 1984, Godwin’s attorney wrote Churchman/Turner/Bonds on Godwin’s behalf to request certain information from them prior to a meeting to “wind up” corporate matters.

Over the next few working days, from November 12 through November 23, 1984 (November 22 was Thanksgiving Day), Churchman/Turner/Bonds continued working at the corporation office. Churchman/Turner/Bonds testified that this was solely for the purpose of winding up affairs. Over the following weekend (November 24-25), Churchman/Turner/Bonds took furniture, client files in progress, computer diskettes with client information, and financial data including accounts receivable from the office, without giving prior notice to Godwin.

Godwin filed his complaint against Churchman/Turner/ Bonds on November 20,1987, and alleged six counts, all of which are connected to the schism in the business enterprise: 1) breach of oral contract; 2) breach of implied contract; 3) tort of outrage; 4) tortious interference with Godwin’s clients; 5) conversion of property; and 6) breach of fiduciary duty owed the corporation. Churchman/Turner/Bonds moved to dismiss the complaint under Ark. R. Civ. P. 12(b) for lack of jurisdiction and failure to state claims upon which relief could be granted with accompanying brief on December 3, 1987, and attached to their motion an affidavit by Turner. Godwin responded to the motion with a brief and affidavit on December 14,1987. The response of Godwin, the briefs of both parties, and both affidavits assert facts not included either in the original complaint or in the motion to dismiss.

On March 31,198 8, a hearing was held by the trial court on the limitations question raised as part of the jurisdiction allegation in the 12(b) motion of Churchman/Turner/Bonds. In the course of that hearing testimony was taken from all parties, as well as from Godwin’s wife, and exhibits were introduced. The trial counsel admitted at the conclusion of the hearing that the evidence taken went beyond the limitations issue. The trial court dismissed Count I (breach of oral contract) and Count II (breach of implied contract) on July 21, 1988, on limitations grounds. Prior to that order a second 12(b)(6) motion to dismiss was filed by Churchman/Turner/Bonds on July 6, 1988, with a brief in which counsel argued that Godwin’s complaint should be dismissed because it constituted notice pleading rather than the required fact pleading under Ark. R. Civ. P. 8(a). The trial court granted the second motion and dismissed the remaining four counts of Godwin’s complaint on January 18, 1990.

We begin with an analysis of what exactly was the nature of the first motion considered by the trial court. The motion filed by Churchman/Turner/Bonds ostensibly was a 12(b) motion, but once matters outside of the pleadings were presented to the trial court the rules require that the motion be considered one for summary judgment and be treated as such and disposed of as provided in Rule 56. See Ark. R. Civ. P. 12(b). We have held that it is improper for the trial court to look beyond the complaint to decide a 12(b) motion unless it is treating the motion as one for summary judgment. See Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989); Guthrie v. Tyson Foods, 285 Ark. 95, 685 S.W.2d 164 (1985). We have further said that even if the trial court treats the motion as one for summary judgment, it is incorrect for it then to base its decision on factual allegations made in the briefs and exhibits. Id. Our civil procedure rules clearly provide that the trial court may only consider “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any” for summary judgment purposes. Ark. R. Civ. P. 56(c).

By going beyond the complaint in considering the first 12(b) motion, the trial court converted that motion to one for summary judgment under Rule 56, according to the peremptory language of Rule 12(b). Moreover, by going beyond the pleadings, discovery, and affidavits, the trial court erred for purposes of summary judgment, and the procedure followed did not fall within the specific parameters of Rule 56.

What transpired before the trial court on March 31, 1988, was, in reality, a trial on the limitations issue. Live testimony was presented from six witnesses and several exhibits were introduced by both parties, after which time the trial court made a factual determination regarding the statute-of-limitations defense. The proceedings were not orchestrated solely by the trial court. The attorneys for both parties agreed to a hearing with testimony and exhibits to decide the limitations issue. The trial court initially questioned the propriety of doing this, but at the end it agreed to proceed:

Court: Well, that’s fine, I mean, I’ll do it that way if both of y’all agree. . . .
McLarty: Well, what I had suggested in my motion is that if the cause of action is clearly barred by limitations, that my clients particularly ought not to have to be put through the expense, time and trouble of a full-scale preparation and a full-scale trial.
Court: I’ll tell you what let’s do. I can’t answer this question until I hear the proof.
McLarty: I don’t think you can.
Court: And, I think you’re right. And let’s go ahead and put on what we’ve got today and I’ll listen to it and if I think that’s part of a fact question for a jury, then I’m going to, I’m going to. . .
McLarty: You’re going to overrule the motion.
Lyons: I understand that and I have no objection to the Court hearing it if the Court. . .
Court: Well, I got to hear it in order to know —
Lyons: Right.
Court: — so let’s go.
Lyons: And if the Court feels—
Court: I know what I’m doing now.
Lyons: — that it’s properly a factual determination for the jury to do, then you will simply overrule the motion at this time.

Thereafter, a hearing on the limitations issue occurred. As indicated from this colloquy the trial court first sought to decide whether a fact issue existed to present to the jury. At the end of the hearing the trial court was inclined to rule on the limitations question directly and also on whether sufficient facts had been pled in Godwin’s complaint on all counts under Rule 8(a). The following colloquy ensued:

Lyons: Judge, it was my understanding that the, I understand what the motion says, it was my understanding with Mr. McLarty, and I think he would agree with me, that the only issue to be decided today was statute of limitations and nothing. . .
Court: On all six or the first one?
Lyons: On all six and nothing else.
Court: All right. Now, let me get the record straight.
Lyons: Is that correct?
Court: All right, I’ll give you what you want.

The trial court then proceeded to discuss the absence of sufficient facts pled under all counts but Count I. The court said it was inclined to dismiss only Count I (breach of oral contract) on limitation grounds, but wanted briefs on the subject. Almost four months later it dismissed Counts I and II as violative of the three year statute of limitations.

For guidance on this issue we turn to Ark. R. Civ. P. 15 (b). That rule governs amendments to the pleadings to conform to the evidence and provides that where an issue is tried by the express or implied consent of the parties, it shall be treated in all respects as if it had been raised in the pleadings. This results, according to the rule, even if a motion to amend the pleadings to conform is not made by the affected party. So it was in the case before us. Counsel for both parties agreed to a hearing on the limitations issue which resulted in a trial of that issue. The trial court then made its decision and issued its order dismissing Counts I and II. We, therefore, hold that the limitations issue was tried as if it were an affirmative defense to Godwin’s complaint under Ark. R. Civ. P. 8(c) with the express consent of the parties, and we treat it as if it had been raised in the pleadings.

We further hold that the limitations defense was tried before the trial court by agreement of the parties. While it first appeared that the trial court would limit itself to deciding whether a jury question was involved, by the end of the hearing it was obvious that the trial counsel wanted a decision on the limitations question itself, and the trial court obliged.

We turn next to the question of whether substantial evidence exists to support the trial court’s dismissal of Counts I and II on limitations grounds. See Ark. La. Gas. Co. v. Hutcherson, 287 Ark. 247, 697 S.W.2d 907 (1985). We hold that it does. The issue, boiled down to its essence, centers on whether breach of the oral contract to do business occurred, when Churchman/Turner/ Bonds tendered their resignations on November 11, 1984, or when they vacated the office on November 23-24, 1984. Only if the latter dates apply was Godwin’s complaint relative to Counts I and II timely commenced.

There is no doubt that the evidence of the earlier breach is substantial, as witnessed by Godwin’s own testimony concerning the November 11 meeting:

Counsel: Well, isn’t that the effect of what they said, the deal to buy you out was off?
Godwin: That was my understanding of it.
Counsel: And if they breached or failed to live up to any agreement to buy you out, they breached it as of that date, didn’t they?
Godwin: The way I look at it is when they did the last thing in, in point of time.
Counsel: But was there any doubt in your mind when you had your last meeting with them with Marvin being present, was there any doubt in your mind but that the deal to buy you out in oral or otherwise was off, over and done with?
Godwin: Right.
Counsel: All right, Sir. And whenever that day was, it was before the 11th of November of 1984.
Godwin: That’s when I knew that they, that they were planning to move out, that’s right.
Counsel: And that the deal was off.
Godwin: Well, they said either accept it or reject it and I rejected their offer. And I understood then that they were pulling out, they were quitting. They were quitting, didn’t want to follow through on the contract.
Counsel: All right, they were not wanting to follow through on the contract.
Godwin: That’s right. They. . .
Counsel: And that happened before the 11th, is that right?
Godwin: Well, they told me before the 11th. I mean, I knew before the 11th that they were moving.

Godwin himself clearly conceded that he had knowledge of the breach of the oral contract by the earlier date. We affirm the trial court’s order dismissing Counts I and II.

We turn now to the second motion to dismiss filed by Churchman/Turner/Bonds alleging failure to state facts upon which relief can be granted under Rule 12(b) (6). This motion was filed on July 6, 1988, after the March 31, 1988 hearing. The accompanying brief argues not only Ark. R. Civ. P. 12(b)(6) for dismissal of the four remaining counts but also Ark. R. Civ. P. 8(a) due to the insufficiency of the facts pled. The trial court dismissed the four counts on January 18, 1990, without findings or further comment. On appeal Godwin again argues that the trial court erred in not treating the second motion as one for summary judgment.

Our analysis is somewhat akin to that used for the first motion to dismiss and we look to determine whether the trial court went outside of the pleadings in making its decision. Unlike the limitations issue, however, here there is nothing to suggest that the trial court made its decision based on matters outside of the pleadings. We are mindful that a hearing did occur on March 31, 1988, and that the trial court was disposed at the hearing’s conclusion to rule on the notice pleading issue. Indeed, at the hearing the trial court said that it regarded the complaint “as being conclusions more than fact” and asked for briefs on the question. This remark supports a conclusion that the trial court’s order was ultimately grounded on the pleadings alone. Indeed, the order says as much, and Godwin is not convincing to the contrary.

Arkansas has adopted a clear standard to require fact pleading: “A pleading which sets forth a claim for relief. . .shall contain (1) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief. . . .” Ark. R. Civ. P. 8 (a). By the same token our rules state that “All pleadings shall be liberally construed so as to do substantial justice.” Ark. R. Civ. P. 8(f).

Paragraph fourteen of Godwin’s complaint in particular provides the factual basis for the four counts at issue:

14. That without notice or warning to the Plaintiff Godwin or to the clients, the Defendants removed the files, including those originally brought into the practice by Plaintiff Godwin, copied the computer diskettes which were the property of Plaintiffs, took the furniture which was the property of Plaintiffs and took over the Plaintiffs’ accounting practice which he had brought into the group.

This factual allegation meets the criteria for the tort of conversion in that Godwin sufficiently alleges that Churchman/Turner/ Bonds exercised dominion over property in violation of the rights of the owners. See Car Transportation v. Garden Spot Distr., 305 Ark. 82, 805 S.W.2d 632 (1991). We hold, accordingly, that the trial court erred in dismissing the conversion count (Count V).

We further hold that sufficient facts were pled to assert a claim by the corporation for breach of fiduciary duty. (Count VI). Churchman/Turner/Bonds were alleged to be officers of the corporation. As such they held positions of trust and occupied a fiduciary relationship to the corporation. See Taylor v. Terry, 279 Ark. 97, 649 S.W.2d 392 (1983). In their fiduciary capacities they were foreclosed from acquiring property in which the corporation had an interest. Id. Certainly, they could not act to benefit themselves personally at the expense of the corporation. Id. Here, the corporation is a party, and it has alleged that Churchman/Turner/Bonds “misappropriated for their own personal benefit business expectancies and opportunities properly belonging to the Plaintiff corporation. . . .” Paragraph 14, quoted above, itemizes what was taken more precisely. A sufficient claim has been stated, and the trial court was wrong in dismissing this count.

We affirm the trial court on the two other dismissals. In Count III Godwin alleges the tort of outrage based on the removal of his property and states the conduct of Churchman/Turner/ Bonds was outrageous, intolerable in a civilized society, and caused him emotional distress. The alleged taking of property did not raise sufficient facts to sustain a count for the tort of outrage or to withstand a 12(b)(6) motion. See Rabalais v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985).

Nor has Godwin successfully pled facts for tortious interference (Count IV). No valid contractual relationship with a particular third party which was intentionally interfered with by Churchman/Turner/Bonds was pled by Godwin. See Mid-South Beverages, Inc. v. Forrest City Grocery Co., Inc., 300 Ark. 204, 778 S.W.2d 218 (1989). The trial court correctly dismissed this count.

In sum, we affirm in part and reverse in part and remand.


author: David E. Smith, Special Justice.

text:
    CITICORP INDUSTRIAL CREDIT, INC. v. WAL-MART STORES, INC.
    90-97
    809 S.W.2d 815
    Supreme Court of Arkansas
    Opinion delivered May 20, 1991

      Friday, Eldredge & Clark, by: William H. Sutton and Frederick S. Ursery, for appellant.

      Matthews, Campbell & Rhoads, P.A., by: George R. Rhoads, for appellee.
   David E. Smith, Special Justice.

Citicorp Industrial Credit, Inc., appeals the entry of a default judgment against it in favor of Wal-Mart Stores, Inc. The case presents the issue of whether a foreign corporation has thirty days to respond to a summons and complaint or whether it is limited to twenty days. Citicorp asks this court to interpret the term “non-resident” as used in Rule 12(a) of the Arkansas Rules of Civil Procedure. The Supreme Court has jurisdiction over this appeal under Rule 29(l)(c) of the Rules of the Supreme Court because it involves an interpretation of the Arkansas Rules of Civil Procedure.

Specifically, Citicorp contends that it is a foreign corporation and, therefore, a non-resident of the State of Arkansas under Rule 12(a) notwithstanding that it registered to do business in Arkansas and has a registered agent for service of process in Arkansas, The Corporation Company located in Little Rock, as is required by Ark. Code Ann. Sec. 4-27-501. Citicorp contends that the trial court erred in concluding otherwise. We agree and reverse the judgment.

There are no disputed facts material to the issue involved in this appeal. The only dispute involves an application of Rule 12(a) to those facts. The case, therefore, presents only a question of law for our determination.

A detailed review of the allegations of the complaint is not necessary to an understanding of the issue raised by this appeal. Simply stated, Wal-Mart alleged that Citicorp had converted the proceeds of two checks which Wal-Mart contended it had mailed to the wrong post office box. Wal-Mart sought judgment against Citicorp for the full amount of the two checks, plus pre-judgment interest and other incidental relief.

On July 15, 1988, Wal-Mart filed its complaint in the Circuit Court of Benton County, Arkansas. On July 15,1988, the Benton County Circuit Clerk issued a summons directed to Citicorp which notified Citicorp that it had twenty days to answer the complaint. Counsel for Wal-Mart served the summons and complaint by certified mail, restricted delivery, on Citicorp’s registered agent for service of process on July 20, 1988.

On August 10, 1988, Wal-Mart filed a motion for default judgment, alleging that service was made on Citicorp on July 20, 1988; that twenty days after that date was August 9, 1988; and that no answer had been filed by that date.

On August 11,1988, Citicorp filed a response to the motion. In that response, Citicorp alleged that the motion for default judgment was premature because it is a foreign corporation having been incorporated in the State of Delaware, that its principal place of business is in Harrison, New York, that Citicorp is a non-resident under the Arkansas Rules of Civil Procedure, and that this fact is not altered because Citicorp registered to do business in Arkansas and appointed an agent for service of process. Citicorp further alleged that, as a non-resident, it was entitled to thirty days from the date of service in which to respond to Wal-Mart’s complaint and that, therefore, Citicorp had until August 19,1988, in which to file its responsive pleading. On August 18, 1988, Citicorp filed a motion to dismiss the complaint under Rule 12(b)(3) alleging that venue in Benton County was improper.

Wal-Mart later filed affidavits of officers of Wal-Mart and Tyson Foods, Inc., establishing that both are Delaware corporations and filed a certificate of the Benton County Circuit Clerk, in support of its motion for default judgment. The clerk’s certificate stated that in cases filed against Wal-Mart and Tyson Foods in the Benton County Circuit Court the summonses issued provided that the defendants had twenty days in which to answer. The apparent purpose of the affidavits and certificate was to establish that it is the custom and practice in Benton County to allow foreign corporations with registered agents in Arkansas twenty days to respond to a complaint. Citicorp moved to strike the affidavits and clerk’s certificate as being irrelevant and impertinent.

A hearing was held on the three motions after which, the trial court entered a default judgment against Citicorp for the full amount sought by Wal-Mart, plus pre-judgment interest, for a total judgment of $193,935.29. The trial court ruled that Citicorp’s motion to dismiss and motion to strike were rendered moot by the ruling on Wal-Mart’s motion for default judgment. In its default judgment, after reciting the facts, the trial court reached the following conclusions:

That the defendant, Citicorp Industrial Credit, Inc., is a Delaware corporation which has been domesticated in the State of Arkansas by making the appropriate filing with the Arkansas Secretary of State and has a registered office and registered agent in the State of Arkansas. Therefore, the defendant, Citicorp Industrial Credit, Inc., is not a non-resident of this State for the purpose of the application of the Answer filing deadline of Rule 12 of the Arkansas Rules of Civil Procedure and only had twenty (20) days after the service of the summons upon it in which to file its answer or pleading.

We hold that the trial court’s conclusions are erroneous as a matter of law.

Rule 12(a) of our Rules of Civil Procedure mandates the time within which a responsive pleading to a summons and complaint must be filed. It reads, in part, as follows:

A defendant shall file his answer within twenty (20) days after the service of summons and complaint upon him, except when service is upon a non-resident of this state, in which event he shall have thirty (30) days after service of summons and complaint upon him within which to file his answer. . . .

We think that the language of the rule is clear and unambiguous. This is consistent with Reporter’s Note 3 to Rule 12:

This rule allows a nonresident of this State a period of thirty (30) days to plead regardless of where service was effected and regardless of whether service was effected through a resident agent in this State.

According to Rule 12, a non-resident defendant is entitled to thirty days in which to respond to a complaint. A resident defendant, however, is limited to twenty days. The Rule supplants former law found in superseded Ark. Stat. Ann. Sec. 27-1135 (Repl. 1962) which gave defendants twenty days in which to respond, unless service was made outside the state, in which case the defendant was entitled to thirty days in which to respond. The Rule unequivocally grants non-resident defendants thirty days to respond, regardless of whether service was made within or outside of the state.

The trial court concluded that by registering to do business and having a registered agent in Arkansas, Citicorp became “domesticated,” and reasoned that Citicorp was “not a nonresident of this state,” which is just another way of saying that Citicorp became a resident of this state.

Rule 12 makes a distinction based upon whether a defendant is a resident or non-resident of Arkansas, not whether a defendant is “domesticated” or “non-domesticated.” In making a distinction based on “domestication,” the trial court erroneously changed the clear meaning of the Rule. Furthermore, the holding of the trial court is contrary to the previous decisions of this court.

The general rule is that a corporation is a resident of the state under the laws of which it was created. 20 C.J.S. Corporations, Sec. 1795 (1940 and Supp. 1989); 36 Am.Jur. 2d Foreign Corporations, Sec. 465 (1968 and Supp. 1989).

In Missouri-Pacific Railroad Co. v. Fox, Inc., 251 Ark. 247, 472 S.W.2d 726 (1971), we stated: “[A] foreign corporation may be admitted to this state for the purpose of doing business, but it does not become a resident by such admission.” 251 Ark. at 254, 472 S.W.2d at 729. See also, Southwestern Bell Telephone Co. v. Roberts, 246 Ark. 846, 440 S.W.2d 208 (1969) (“A foreign corporation is not recognized, however, as having a local or county residence”); and Pekin Cooperage Co. v. Duty, 140 Ark. 135, 215 S.W. 715 (1919). Clearly, our case law establishes that foreign corporations do not become Arkansas residents by registering to do business here, and they are, therefore, entitled to the thirty days to respond to a complaint provided by Rule 12.

Wal-Mart relies heavily on Art. 12, Sec. 10, of the Constitution of Arkansas which reads as follows:

Foreign corporations may be authorized to do business in this state under such limitations and restrictions as may be prescribed by law. Provided, that no such corporation shall do any business in this state except while it maintains therein one or more known places of business and an authorized agent or agents in the same upon whom process may be served; and, as to contracts made or business done in this state, they shall be subject to the same regulations, limitations and liabilities as like corporations of this state, and shall exercise no other or greater powers, privileges or franchises than may be exercised by like corporations of this state. . . . (Emphasis supplied.)

Wal-Mart also relies upon Ark. Code Ann. Sec. 4-27-1505(B) which reads as follows:

A foreign corporation with a valid certificate of authority has the same but no greater rights and has the same but no greater privileges as, and except as otherwise provided by this chapter, is subject to the same duties, restrictions, penalties, and liabilities now or later imposed on, a domestic corporation of like character.

Wal-Mart argues that these are “equality” provisions of the Constitution and laws of Arkansas, and that by permitting foreign corporations a longer time to answer complaints than is allowed to Arkansas corporations, Rule 12 is unconstitutional because it denies Arkansas corporations equal protection of the laws.

Wal-Mart’s constitutional argument is not considered because (1) it is raised for the first time on appeal and (2) WalMart, as a foreign corporation, has no standing to raise the issue.

However, it is in this “equal protection” argument that Wal-Mart cites the practice of attorneys in the Benton County Circuit Court of allowing foreign corporations qualified to do business in this state only twenty days to answer a complaint. We take this opportunity to point out that our rules of civil procedure cannot be altered by custom and practice of the attorneys in any given county. Otherwise, we could possibly have as many variations on our rules as there are counties in Arkansas.

We also take this opportunity to point out that there are sound practical reasons for giving non-resident defendants ten additional days within which to respond to a complaint. Corporate defendants registered to do business in this state must appoint agents for service of process. Frequently, these registered agents are corporations formed solely for the purpose of acting as agents for service, as is Citicorp’s registered agent in this case. These corporate registered agents may represent hundreds, perhaps thousands, of foreign corporations doing business in Arkansas. They have no authority to engage in decision-making for their principals, nor to engage attorneys or other professionals to represent them. They may only accept service. When served they must identify the party for which they have acted as agent for service and get the process in the hands of that party located in another state by mail or private carrier. The foreign corporation must then secure the services of an attorney licensed to practice in our courts, who, in turn, must receive the pleadings and process from the non-resident defendant, examine the pleadings, and prepare and file a response. Again, all of this is often done by mail.

Rule 12 recognizes the fact that these things may take more time for a non-resident defendant to accomplish and grants that defendant additional time so that it will not be at a disadvantage in our courts. The policy reasons for allowing additional answer time to non-residents are even more compelling when the nonresident defendant is a natural person, who may lack the knowledge of litigation which corporate defendants often possess.

Citicorp was entitled to thirty days to respond to WalMart’s complaint, rather than the twenty days allowed by the trial court. Citicorp pled responsively within thirty days of the date of service of the complaint, and was not in default. The judgment of the trial court is reversed, and the case is remanded for further proceedings.

Reversed and remanded.

Special Justices Julian B. Fogleman and R. Keith Vaughan join in this opinion.

Dudley, Corbin and Brown, JJ., not participating.


author: Per Curiam.

text:
    Ernest Dewayne LEMONS v. STATE of Arkansas
    CR 91-108
    808 S.W.2d 778
    Supreme Court of Arkansas
    Opinion delivered May 20, 1991

      Daniel D. Becker, for appellant.

      Winston Bryant, Att’y Gen., by: Pamela Rumpz, Asst. Att’y Gen., for appellee.
   Per Curiam.

We grant appellant’s motion to supplement record and to revise briefs subject to the parties briefing the issues as to whether supplementation of record is proper in this case, and if so, how such additional record (and evidence introduced at the jury proceeding on March 28,1991) should affect the revocation decision now submitted in this appeal.

We deny appellant’s motion for review of appeal bond.


text:
    Michael Shane YORK v. STATE of Arkansas
    RC 91-23
    807 S.W.2d 933
    Supreme Court of Arkansas
    Opinion delivered May 20, 1991

      David M. Clark, for appellant.
    No response.
   Per Curiam.

Petitioner, Michael Shane York, by his attorney, David M. Clark, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his failure to timely file the record in this court. See Ark. R. App. P. 5(a).

We find that such failure, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


author: Jack Holt, Jr., Chief Justice.

text:
    Kemal KUTAIT and George Catsavis d/b/a K & C Properties v. James L. O’ROARK
    91-117
    809 S.W.2d 371
    Supreme Court of Arkansas
    Opinion delivered May 28, 1991
    [Rehearing denied June 24, 1991.]

      Gean, Gean & Gean, by: Roy Gean III, for appellants.

      Frank W. Booth, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves an award of costs and damages, in the amount of $25,043.25, to the appellee, James O’Roark, as a result of the trespass upon his land and removal of shale, rock, and ground from his property by the appellants, Kemal Kutait and George Catsavis d/b/a K & C Properties (K & C).

On appeal, K & C contends that the trial court erred in allowing Mr. O’Roark to introduce evidence of damage beyond the difference of the fair market value of the land immediately before and immediately after the alleged trespass. Mr. O’Roark cross-appeals on two points of error: 1) that the trial court erred in denying his post-trial motion for prejudgment interest, and 2) that the trial court erred in denying his post-trial motion for treble damages. None of the parties’ claims has merit, and we affirm.

The underlying facts, as represented by Mr. O’Roark, show that K & C’s trespass occurred during the summer and fall of 1985 and that, over the course of several weeks, K & C impermissibly removed several thousand yards of shale, rock, and ground from Mr. O’Roark’s property to nearby roadbeds and property owned by K & C. On October 28, 1988, Mr. O’Roark filed his complaint for damages, and, after a jury trial on December 8, 1989, the trial court entered judgment in favor of Mr. O’Roark in the amount of $25,000 for damages and $43.25 for costs.

K & C asserts that the trial court erred in allowing Mr. O’Roark to introduce evidence of damage beyond the difference of the fair market value of the land immediately before and immediately after the alleged trespass. K & C is referring to the trial court’s allowance of testimony relating to the cost of restoring Mr. O’Roark’s property. However, its reliance on two cases, Southern Ice & Utilities Co. v. Bryan, 187 Ark. 186, 58 S.W.2d 920 (1933), and St. Louis, I.M. & S. Ry. Co. v. Magness, 93 Ark. 46, 123 S.W. 786 (1909), as its basis for the fair market value differentiation measure of damages is misplaced because those cases reflect the measure of damages to be used with regard to permanent damage to real property rather than the measure of damages utilized in cases of temporary damage to real property.

In this case, the excavation damage inflicted by K & C upon Mr. O’Roark’s property is capable of repair, and we have held that restoration costs are a recoverable element of damages for temporary damage done to property. Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990) (citing Arnold v. Lee, 296 Ark. 339, 756 S.W.2d 904 (1988), and Benton Gravel Co. v. Wright, 206 Ark. 930, 175 S.W.2d 208 (1943)).

On cross-appeal, Mr. O’Roark contends that the trial court erred in denying his post-trial motion for prejudgment interest. Although he recognizes that the test for awarding prejudgment interest is whether a method exists for fixing the exact value on the cause of action at the time of the occurrence of the event that gives rise to the cause of action, City of Fayetteville v. Stanberry, 305 Ark. 210, 807 S.W.2d 26 (1991), Mr. O’Roark fails to comply with the test.

Our cases have stressed the requirement of certainty as to time and amount, see Berkely Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983); Brown v. Summerlin Assoc., Inc., 212 Ark. 298, 614 S.W.2d 227 (1981); Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981); and Taylor v. Jones, 495 F. Supp. 1285 (E.D. Ark. 1980), on the basis that:

Prejudgment interest is compensation for recoverable damages wrongfully withheld from the time of the loss until judgment. This interest must be allowed for any injury where, at the time of loss, damages are immediately ascertainable with reasonable certainty.
Wooten v. McClendon, supra.

Here, in his amended complaint, Mr. O’Roark claims that “[t]he trespass herein occurred during the summer and fall of 1985. Over the course of several weeks during said period of time the defendants removed . . . several thousand yards of shale, rock, and ground from plaintiffs property . . . .” While we have permitted prejudgment interest where the amount of damages was ascertainable from the date of the filing of the suit based upon production records entered into evidence, see Killam v. Texas Oil and Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990), and termination of a contract, see Advance Const. Co. v. Delta Asph. & Conc., 263 Ark. 232, 563 S.W.2d 888 (1978), we decline to use the date of the filing of the complaint in this case as the date upon which prejudgment interest should be calculated. Mr. O’Roark’s vague assertions, although certainly capable of more accurate detailings, fail to comply with the requirement of certainty of time and amount.

Mr. O’Roark also argues that the trial court erred in denying his post-trial motion for treble damages. Ark. Code Ann. § 18-60-102(a) (1987) addresses the injuring, destroying, or carrying away of the property of another and provides in pertinent part that “[i]f any person . . . shall dig up, quarry, or carry away any stone, ground, clay ... in which he has no interest or right. . . the person so trespassing shall pay the party injured treble the value of the thing so . . . carried away, with costs.”

Arkansas Code Ann. § 16-56-108 (1987) addresses the recovery of statutory penalties and provides that “ [a] 11 actions on penal statutes where the penalty, or any part thereof, goes to the state, or to any county or person suing for the same, shall be commenced within two (2) years after the offense has been committed or the cause of action has accrued.”

K & C trespassed upon Mr. O’Roark’s property during the summer and fall of 1985, and Mr. O’Roarkfiled his complaint on October 28, 1988, nearly three years later. We recognized in Foran v. Ford, 279 Ark. 121, 649 S.W.2d 177 (1983), that Ark. Stat. Ann. § 50-105 (Repl. 1971) (currently section 18-60-102) is penal in nature. Consequently, section 16-56-108 applied to Mr. O’Roark’s claim for treble damages, and the trial court did not err in precluding Mr. O’Roark from recovering treble damages because the two-year limitation had expired.

Affirmed.


author: Steele Hays, Justice.

text:
    Billy G. BALLEW v. STATE of Arkansas
    CR 91-81
    809 S.W.2d 374
    Supreme Court of Arkansas
    Opinion delivered May 28, 1991

      Robert Meurer, for appellant.

      Winston Bryant, Att’y Gen., Elizabeth A. Vines, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Billy Ballew was convicted in circuit court of driving while intoxicated. He contends on appeal that the trial court should have ruled that he was entitled to a chemical analysis of his blood, breath, or urine at no expense to him. We reject the argument and affirm the judgment.

Ballew was arrested on February 21, 1990, by Deputy Sheriff A1 Nelson. Officer Nelson testified that he saw a 1983 Chevrolet pickup truck ignore a stop sign and weave back and forth over the center line of the highway. After stopping the vehicle Nelson smelled alcohol and described the driver, Ballew, as too inebriated to perform a field sobriety test and incapable of walking without being supported.

At the sheriff’s office Ballew declared he would not submit to any type of test and Nelson informed him that he was in luck because the breathalyzer was not operating. Nelson advised Ballew that he had the right to have a blood test taken at his own expense and that too was refused.

Prior to trial Ballew moved to suppress any testimony by Nelson regarding Ballew’s alleged intoxication, arguing that Ark. Code Ann. § 5-65-203 (Supp. 1989) requires that the arresting officer offer a chemical analysis of the blood, breath, urine or other bodily substance of the accused at public expense. That motion was denied and appellant assigns error to the ruling.

Appellant relies entirely on the language of the Arkansas implied consent law, [Ark. Code Ann. § 5-65-201—207 (Supp. 1989)], citing such phrases as, a chemical test or tests “shall be administered,” and the law enforcement agency “shall be responsible for all expenses incurred in conducting the tests.”

We fully agree that under the statute if a particular law enforcement agency designates that chemical tests will be administered, the agency is responsible for paying any expenses involved. But the statute is equally clear that if it is the accused who requests the tests (in addition to those taken at the behest of the agency), he shall bear the expense. Nowhere in the act do we find the slightest implication that a law enforcement agency which does not intend to rely on chemical analysis of bodily substance, must nevertheless provide such analysis for an accused. In Grayson v. State, 30 Ark. App. 105, 783 S.W.2d 75 (1990), the Court of Appeals rejected appellant’s argument that he was entitled to a blood test at public expense, though no breathalyzer was administered because the machine was not functioning. The Grayson court noted that § 5-65-204(e)(2) renders the chemical test results of the agency inadmissible if the person tested is not advised of his right to an additional test. There is no proof here that Ballew requested such tests or would have allowed them to be administered. The proof, indeed, was to the contrary.

If the appellant’s position were sustained, it would remove the right of a law enforcement agency to rely on other relevant evidence of intoxication, notwithstanding an express provision in the statute permitting the use of such evidence:

§ 5-65-206(2)(b) (Supp. 1989) reads: The foregoing provisions shall not be construed as limiting the introduction of any other relevant evidence bearing upon the question whether or not the defendant was intoxicated.

The implied consent law was enacted primarily to protect the public from the drinking driver by adopting a balanced procedure for testing bodily substance. Numerous decisions construe similar statutory schemes as permissive rather than mandatory and the wording of our statutes is consonant with those cases. See State v. Woolbright, 57 Wash. App. 697, 789 P.2d 815 (1990); Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986); Kettering v. Baker, 42 Ohio St.2d 351, 328 N.E.2d 805 (1975); Hammer v. Town of Jackson, 524 P.2d 884 (Wyo. 1974).

Affirmed.


author: Tom Glaze, Justice.

text:
    Barabara MACOM and Harold Macom v. WAL-MART STORES, INC.
    91-69
    809 S.W.2d 819
    Supreme Court of Arkansas
    Opinion delivered May 28, 1991.

      Henry, Walden, Davis & Halsey, by: Troy Henry, for appellants.

      Barrett, Wheatley, Smith & Deacon, by: David W. Cahoon, for appellee.
   Tom Glaze, Justice.

This is a slip and fall case in which appellant apparently sustained injuries from falling on a red ink pen located in an aisle in an appellee’s store in Jonesboro. A jury verdict was returned in appellee’s favor, and appellant appeals raising one point for reversal, viz., the trial court erred in excluding certain testimony proffered by appellant’s witness, Marvin Russell, as rebuttal evidence. We hold the trial court ruled correctly, and therefore affirm.

Some nine months after her fall and in preparation for trial against appellee, appellant hired Russell, an investigator, to place a styrofoam cup on the appellee’s store floor at the approximate place where the appellant had fallen. Russell’s proffered testimony at trial reflects that his purpose in placing the cup was to determine whether or not the janitor regularly cleaned that area of the store. He took pictures of the cup’s placement and returned the next day to find the cup had been kicked or somehow relocated to a nearby spot under a pant’s rack. Russell again took pictures of the cup, as relocated, for the apparent purpose of testifying at trial.

To prevail in her slip and fall case, the appellant must show that appellee violated its duty to use ordinary care to maintain the premises in a reasonably safe condition by proving either that the presence of the ball point pen upon the floor was the result of appellee’s negligence or that the ball point pen had been on the floor for such a length of time that appellee knew or should have reasonably known of its presence and failed to use ordinary care to remove it. See AMI Civil 3d 1105; Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987).

In appellant’s case-in-chief, she testified that, immediately prior to her fall, two of appellee’s employees had been looking for something on the store floor as she approached to ask them where the boys’ blue jeans were located. While looking at the jeans, she slipped and fell. After her fall, an ink pen was discovered near her feet. During appellee’s case, the two employees denied that either of them had been looking for a pen, as was suggested by appellant’s testimony. However, one of the two employees (as did the store manager) testified that, under appellee’s cleanup policy, all employees who saw anything on a store’s floor were to “pick it up and put it in its proper place.” The manager added that appellee’s policy is to keep a reasonably safe place for its customers and employees are instructed that, if they see anything on the floor, they are to pick it up.

In appellant’s cross-examination of appellee’s store manager, counsel specifically asked about appellee’s cleaning policy and the manager responded that a night cleanup man swept the floor five nights a week, and its stockmen swept the floor the other two nights. Counsel asked if these employees picked up “cups, pencils, wrappers and things like that,” to which the manager said, “Yes, sir, anything that’s on the floor, they’re to clean up.” Counsel further inquired if the cleanup policy related by the manager was in effect on the day appellant fell and the manager said, “Yes, sir.”

At the end of appellee’s case, appellant offered Russell’s testimony for the expressed purpose of showing appellee’s employees and store manager were lying when they said that the store was cleaned up every night. The trial court’s ruling to exclude such testimony was correct for many reasons.

First, the trial court determined that Russell’s proffered testimony was not relevant. We agree. Russell’s attempt to reconstruct a similar situation nine months after the appellant fell failed to show the appellee’s cleanup employees had not swept the floor on the night prior to appellant’s fall. All Russell’s reconstructed event showed was that he had found the cup in a different spot from where he had placed it the night before. Such testimony in no way showed that appellee’s employees had lied in relating appellee’s nightly cleanup policy. Nor did Russell’s testimony show that the store had not been swept on the night before the appellant’s fall.

Second, while subsequent similar events testimony may be admissible to impeach the testimonies given by appellee’s employees concerning the events occurring and surrounding appellant’s fall, we have held the burden of proving the necessary similarity of conditions rests on the party offering the evidence. See Fraser v. Harp’s Food Stores, Inc., 290 Ark. 186, 718 S.W.2d 92 (1986). The burden of proving the necessary similarity of conditions rests on the party offering the evidence, and the trial court is given wide discretion in determining whether this burden has been met. Id.

Here, Russell’s attempt to show a similar or reconstructive event to the one existent of the night before and day of appellant’s fall again misses the mark of relevancy. Russell’s testimony showed he used a cup, not a pen, in his failed attempt to reconstruct conditions as they existed on the day appellant fell. Obviously, a pen presents a smaller and more perceptible or potential danger than does a styrofoam cup. Furthermore, Russell did not specify which night of the week or which cleanup personnel, stock clerk or regular janitorial staff, had been assigned to sweeping duties on the respective nights and days of the two separate events. While other factors exist to show the dissimilarity between the two events, we believe these stated distinctions sufficiently reflect appellant’s failure to meet her burden.

Finally, even if appellant had shown that Russell’s proffered testimony was relevant rebuttal evidence, such testimony added nothing to what appellant had already elicited upon her cross-examination of appellee’s witnesses. For example, one employee, who testified appellee’s policy was to sweep the floors each night, indicated she sometimes might enter the store the day following the night it was swept and find pencils, cups or candy wrappers on the floor. Another employee admitted that a cup could have been left on the store floor from the prior night’s cleaning, and she might not have known of it. In view of such candid and revealing admissions by appellee’s employees, Russell’s proffered testimony had little or no added probative value. In other words, his testimony only confirmed or was cumulative to these employees’ stories that cups, pencils or other items could have been on the appellee’s store floor without their knowledge even though the store had been cleaned the night before. Thus, while we believe the trial court properly ruled Russell’s proffered testimony was not relevant or proper rebuttal evidence, we fail to see how appellant could have been prejudiced by its exclusion since such testimony was merely cumulative to that evidence appellant had already elicited through appellee’s witnesses.

For the reasons given above, we affirm the lower court’s decision.

Dudley, J., not participating.


author: Donald L. Corbin, Justice.

text:
    Diane CARMICHAEL v. NATIONWIDE LIFE INSURANCE COMPANY
    91-1
    810 S.W.2d 39
    Supreme Court of Arkansas
    Opinion delivered May 28, 1991

      Friday, Eldredge & Clark, by ; Scott J. Lancaster, for appellant.

      Wright, Lindsey & Jennings by: Edwin J. Lowther, Jr., and Kathryn P. Gearhart, for appellee.
   Donald L. Corbin, Justice.

Appellant, Diane Carmichael, appeals from a September 11, 1990 order of the Pulaski County Circuit Court granting the motion for summary judgment of appellee, Nationwide Life Insurance Company. We find no error and affirm.

Rodney Carmichael, appellant’s decedent, on August 5, 1988, applied for a life insurance policy from appellee. Ken Harper, an agent of appellee, asked Mr. Carmichael the questions appearing on the policy application and recorded Mr. Carmichael’s answers on the application. Mr. Carmichael then signed the application. Based on the representations in the application, appellee issued a term life insurance policy to Mr. Carmichael. The policy named appellant as its beneficiary.

Mr. Carmichael died on March 30,1989, of congestive heart failure. Because his death occurred during the policy’s two-year contestability period, appellee conducted a routine investigation to determine whether the answers Mr. Carmichael gave on the application were true and complete. In the course of the investigation, appellee discovered from medical records that Mr. Carmichael was an insulin-dependent diabetic; his condition was diagnosed prior to his applying for the life insurance policy. Appellee subsequently refused to pay death benefits under the policy and on January 24,1990, appellant filed suit to collect said benefits.

On July 27, 1990, appellee moved for summary judgment. The bases of the motion were: 1) the pleadings on file; 2) the insurance policy and application issued by appellee to Rodney Carmichael; 3) the affidavit of Ken Harper, appellee’s agent; 4) relevant medical records; 5) the affidavit of Christina Garrison, appellee’s Life & Health Zone Underwriting Manager for Arkansas; and 6) the memorandum brief filed in support of the motion. This appeal comes from the trial court’s order granting the motion.

Appellant contends that appellee’s motion for summary judgment was based on the finding that Mr. Carmichael did not inform Ken Harper of his diabetic condition. She argues this is a question for the jury, and therefore, the trial court’s granting summary judgment was in error. Appellant relies on Gilcreast v. Providential Life Ins. Co., 14 Ark. App. 11, 683 S.W.2d 942 (1985). In Gilcreast, the court of appeals stated that whether the claimant made fraudulent misstatements in applying for an insurance policy, thereby effectuating the incontestability provision of the policy, was a fact question for the jury. Gilcreast, however, is not controlling on the facts before us.

In support of her argument, appellant maintains that Ken Harper, appellee’s agent, either failed to obtain Mr. Carmichael’s response on each and every question on the insurance application, or failed to accurately record the answers Mr. Carmichael gave. Appellant argues that making such an allegation in her complaint raised a fact question for the jury, and that the case revolved around the factual determination as to the credibility of the witnesses produced by both parties. Appellant contends several factors support her allegations. She says it is very unlikely that Mr.Carmichael, if questioned about diabetes, would have responded negatively since he had been diagnosed i.n 1981 as having diabetes, had been on medication since that time to control the condition and led a perfectly healthy, normal life. Appellant also claims that the fact the application was executed at Mr. Carmichael’s place of employment during working hours, is conducive to the conclusion that the insurance agent failed to have Mr. Carmichael respond to each and every question in an effort to conserve time.

Although appellant makes these assertions, she offers nothing in the way of evidence to substantiate them. Furthermore, the case at bar is clearly distinguishable from Gilcreast, supra. In Gilcreast the insured was a party to the action and able to testify about the application process. In the case at bar, the only people present when the application was filled out were Mr. Carmichael and Mr Harper. Consequently, the only person with personal knowledge of what actually transpired at their meeting is Mr. Harper.

In its brief in support of summary judgment, appellee alleged that during the application process, Rodney Carmichael made misrepresentations which were material to its acceptance of the risk. The application for the life insurance policy was attached to the motion for summary judgment as Exhibit A. The following question appeared on the application:

11(a). Has any person named in Question 1 ever been treated for, had any known indication of or taken any medication for high blood pressure, angina, pain or discomfort in chest, heart attack or other heart disorder, stroke, kidney disorder, epilepsy, nervous or mental disorder, diabetes or cancer? (circle which)

The box marked “no” was checked. Appellee contends it would not have issued the policy had Mr. Carmichael stated the true facts.

Also in its brief in support of summary judgment, appellee recognizing there is no Arkansas case law which directly addresses the effect of an applicant’s signature on a policy application, asserted that by signing an application for insurance, an applicant certifies that the information contained in it is correct to the best of his knowledge.

The application included a certification by Rodney Carmichael which stated:

I have read this application. I understand each of the questions. All of the answers and statements on this form are complete and true to the best of my knowledge. I understand that this form, amendments to it, and related medical examinations will become a part of the policy.
Signed: Rodney Carmichael

It is well established in Arkansas that one is bound under the law to know of the contents of a paper signed by him and he cannot excuse himself by saying he did not know what it contained. Pittsburg Steel Co. v. Wood, 109 Ark. 537, 160 S.W. 519 (1913). Thus, the fact that the decedent signed the application certifying the information contained in it was correct to the best of his knowledge is at least probative evidence of his misrepresentation.

In considering the motion for summary judgment, the trial court had before it Mr. Carmichael’s application in which both the “no” answer was checked to the question of whether he had been treated for diabetes or heart disorders, and Mr. Carmichael attested that the policy application was complete and true to the best of his knowledge. Also before the court were Mr. Carmichael’s 1989 medical records, which established that he had been an insulin-dependent diabetic since 1981 and had knowingly suffered from chest flutters and irregular heartbeats for the past fifteen years. In his affidavit, Ken Harper, appellee’s agent, stated that he asked Mr. Carmichael each and every question contained in the application exactly as it appeared and that he truly and accurately recorded each and every answer exactly as given by Mr. Carmichael and that when the policy application was signed, he had no knowledge or reason to know of any condition which should have been disclosed by Mr. Carmichael. Christina Garrison, appellee’s underwriting manager, stated in her affidavit that had Mr. Carmichael revealed his history of diabetes and heart conditions in his application, his coverage would have been declined.

Ark. R. Civ. P. 56 provides that summary judgment is appropriate where the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact. Rickenbacker v. Wal-Mart Stores, Inc., 302 Ark. 119, 788 S.W.2d 474 (1990). The burden of proving there is no genuine issue of material fact rests with the party moving for summary judgment. King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990). Once the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. Anderson v. First Nat’l Bank, 304 Ark. 164, 801 S.W.2d 273 (1990). The evidence is viewed most favorably to the party resisting the motion, with all doubts and inferences resolved against the moving party. Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20. (1988).

Appellant offered no evidence to rebut even a single assertion made by appellee. In her response to the motion she simply suggested that it was not reasonable under the circumstances to think that Mr. Carmichael made any misrepresentation. In essence, she would have the jury consider the credibility of a witness whose testimony is uncontroverted. However, Ark. R. Civ. P. 56(e), which concerns what defense is required to a motion for summary judgment, specifically provides in part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Although appellant responds to appellee’s motion for summary judgment, she does so with mere allegations, not the specific facts required for showing that a genuine issue of material fact exists. For this reason, we cannot say the trial court erred in granting appellee’s motion for summary judgment.

Finally, appellant urges this court to retroactively apply Act 662 of 1989 [Ark. Code Ann. § 23-79-107 (Supp. 1989)]. We refuse to do so. At the time decedent made application for the policy of insurance in question, Ark. Code Ann. § 23-79-107(a) (1987) provided in part:

Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(1) Fraudulent; or
(2) Material either to the acceptance of the risk or to the hazard assumed by the insurer; or
(3) The insurer in good faith would not have issued the policy... if the facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.

Act 662 of 1989 mirrors the previous Code, but includes this additional provision [section 23-79-107(c)]:

In any action to rescind any policy or contract or to recover thereon, a misrepresentation is material if there is a causal relationship between the misrepresentation and the hazard resulting in a loss under the policy or contract.

Appellee’s right to deny coverage under the law then in effect is a substantive right. Legislation which changes substantive rights does not operate retroactively. Scott v. Consolidated Health Management, Inc., 297 Ark. 601, 764 S.W.2d 434 (1989). Thus, the provision added by Act 662 of 1989 is not applicable to this case.

Viewing the evidence presented in the light most favorable to appellant, we cannot say she presented a genuine issue of material fact. Therefore, we affirm the trial court’s order granting summary judgment.


text:
    Ricky Samuel VAUGHAN v. STATE of Arkansas
    RC 91-28
    810 S.W.2d 327
    Supreme Court of Arkansas
    Opinion delivered May 28, 1991

      William Isaacs, for appellant.
    No objection.
   Per Curiam.

Petitioner, Ricky Samuel Vaughan, by his attorney, William Isaacs, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his failure to timely file the record in this court. See Ark. R. App. P. 5(a).

We find that such failure, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


author: Robert H. Dudley, Justice.

text:
    Shirley Ann BROWN and Gene R. Brown v. Bruce J. MINOR, et al.
    90-332
    810 S.W.2d 334
    Supreme Court of Arkansas
    Opinion delivered June 3, 1991
    [Rehearing denied July 8, 1991.]

      Herrod’s of Arkansas, by: E.H. “Buz” Herrod, for appellant.

      Homer Tanner, for appellee.
   Robert H. Dudley, Justice.

The Chancellor ruled that this suit was filed without any reasonable basis and, as a result, ordered the plaintiffs to pay the defendants’ attorney’s fees. The plaintiffs appeal the award of fees to defendant Bruce Minor. We affirm the Chancellor’s ruling.

The evidence, when considered in the light most favorable to the defendant, as we must do, is as follows. Plaintiff Shirley Brown wanted to purchase a small tract of land on which to open a flea market. She eventually decided on a one-acre, obtuse triangular-shaped tract of ground on Highway 365, the Old Conway Highway, in Pulaski County. The base of the triangular shaped tract is the quarter-section line; the right side is the highway; and the left side is the Union Pacific line. The highway and the railroad angle together to form the apex of the triangle.

Plaintiff Shirley Brown testified that she talked to many people in the area trying to find the owner of the land so that she could purchase it. She recalled the names of two of the people to whom she talked. One, a man named Lackey, told her he had tried to buy it but could not do so and added, “You might as well just give up.” The other, defendant Minor, told her, “he couldn’t help me with it.” She found that the property had been owned earlier by a Vivian Stephan, but that she was now dead. In addition, she thought that the tax assessor’s office had not assessed the tract.

She testified that a previously unknown “little old lady” named Dorsey Stephan telephoned her from Hot Springs and offered to sell her the tract for $1,000.00. She did not know Dorsey Stephan, did not know whether she was related to Vivian Stephan, and did not know whether Dorsey Stephan held any color of title. She did not know the description of the land, did not employ an attorney, did not conduct a title search, did not require an abstract of title, nor did she ask for a title insurance policy. She testified that Dorsey Stephan gave her a warranty deed to the property in exchange for $1,000.00. She personally took the warranty deed which was acknowledged by a local notary public. She stated that she has not seen Dorsey Stephan since that time and could not find her to testify as a witness at trial.

The description contained in 'the Dorsey Stephan deed does not close at the apex; takes in part of the highway property on the right side; and includes part of the railroad property on the left side. Plaintiff Brown never had the tract surveyed.

She stated that after purchasing the land she did not get an abstract of title “because they couldn’t trace it.” She admitted that she did not check the probate records of the estate of Vivian Stephan and, most importantly, admitted that she tried but could not find any evidence that her grantor, Dorsey Stephan, had ever owned any interest in the land.

The deed to plaintiff Shirley Brown was dated January 20, 1989. She and her husband, plaintiff Gene R. Brown, started to fill the land and planted some trees. Shortly thereafter, defendant Minor told them to get off the land. On April 3, 1989, plaintiff Shirley Brown’s attorney wrote a letter to the county clerk stating that the tract was not on the tax books and asking that it be assessed in her name. On April 7,1989, the clerk responded that the land was on the tax books. On April 5,1989, only seventy-five (75) days from the date of the deed, plaintiffs Shirley Brown and Gene Brown filed a quiet title action against defendant Minor, the Union Pacific Railroad, and the Arkansas State Highway Department. In the suit the plaintiffs claimed the triangular tract as well as a second tract. At trial, plaintiff Gene Brown testified that his right to quiet title was based upon his marriage to plaintiff Shirley Brown.

The plaintiffs obtained an ex parte restraining order which prevented all parties from “harrassing or intimidating” the other parties to this suit.

Defendants Union Pacific and Minor filed answers. Separate defendant Minor additionally pleaded that the plaintiffs claimed title by virtue of the 1989 deed from Dorsey Stephan but they could not possibly claim payment of taxes for seven (7) years, and thus could not possibly prevail.

After hearing the case the trial court dismissed both the action involving this triangular tract as well as the action involving the second tract. The Chancellor also awarded attorney’s fees to defendants Union Pacific and Minor. The plaintiffs appeal from the award of attorney’s fees to defendant Minor.

Ark. Code Ann. § 16-22-309 (Supp. 1989) authorizes attorney’s fees for a prevailing party when the court finds a complete absence of a justiciable issue. Such a condition exists when “the party or the party’s attorney knew, of should have known, that the. . . claim. . . was without any reasonable basis in law or equity. . . .” The issue becomes: Was there any reasonable basis for this quiet title action?

It has long been established that a court of equity has subject-matter jurisdiction to hear either the common law or the statutory action to quiet title. The common law action can be maintained only when the petitioner holds legal title. The statutory action permits the petitioner to maintain such a suit even though he cannot show “a perfect claim of title.” However, the petitioner must “show that he, and those under whom he claims, have had color of title to the land for more than seven (7) years and that during that time he, or those under whom he claims, have continuously paid the taxes thereon.” Ark. Code Ann. § 18-60-506 (1987); Driver v. Driver, 223 Ark. 15, 263 S.W.2d 914 (1954). In this appeal, the plaintiffs admit they were attempting to proceed in accordance with the statutory action to quiet title. Ark. Code Ann. §§ 18-60-501 to -511 (1987).

The testimony of the plaintiff Gene Brown that his basis for filing suit was his marriage to plaintiff Shirley Brown is so completely lacking in merit that we need not discuss it. Plaintiff Shirley Brown’s position is almost as inane, but at least she held a wild deed. However, there is no way that she or her attorney could have conceivably thought that she had possessed the land for “more than seven (7) years” and “during that time. . . continuously paid the taxes thereon.” Even if by some stretch of the imagination plaintiff Shirley Brown or her attorney did not know the suit was filed without a reasonable basis, they knew it after defendant Minor filed his pleading informing them that the statute required possession and payment of taxes for more than seven (7) years. This was much more than a case in which there was only a failure of proof; this was a case where the plaintiffs had no reasonable basis whatsoever to sue these defendants. Plaintiffs may well have a suit against Dorsey Stephan, but she was not sued and that is not the issue. Thus, the trial court ruled correctly in ordering plaintiffs to pay the defendants’ attorney’s fees.

Both plaintiffs additionally argue that the amount of the fees awarded to defendant Minor was in error because it exceeded 10 % of the amount in controversy. See Ark. Code Ann. § 16-22-309(a)(l) (Supp. 1989). We do not consider the argument for two reasons: (1) the argument was not made to the trial court, and (2) the amount in controversy was never established.

The plaintiffs’ next argument is similarly without merit. In making it they first confess that they do not controvert the trial court’s refusal to quiet title in them, but then argue “the trial court erred by not granting some type of relief sought by appellants in the complaint.” They argue that they are entitled to a “right to peaceful possession of the property,” but cite neither cases, nor authority, nor give a convincing argument about such a right. Under such circumstances we do not further consider the issue. Knowles v. Salazar, 298 Ark. 281, 766 S.W.2d 613 (1989).

Defendant Minor attempts to cross-appeal from the trial court’s ruling refusing to quiet title in him. We dismiss his cross-appeal because he did not give notice of the cross-appeal. The matter comes about in the following way. Defendant Minor answered the plaintiffs’ complaint and, in it, contended that he owned the land. However, he did not ask that his title be quieted and, because of that, the Chancellor declined to quiet his title. Now, on appeal, he seeks to have this court reverse the Chancellor and quiet title in him. We are without jurisdiction to do so. A notice of cross-appeal is necessary when an appellee seeks something more than he received in the lower court. Independence Fed. Sav. & Loan Ass’n v. Davis, 278 Ark. 387, 646 S.W.2d 336 (Supp. Op. at 393-A 1983).

Affirmed on direct appeal; cross-appeal dismissed.


text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. Deidre CLARK
    91-12
    810 S.W.2d 331
    Supreme Court of Arkansas
    Opinion delivered June 3, 1991

      Stephen C. Sipes, for appellant.

      Griffin J. Stockley, for appellees.
   Steele Hays, Justice.

The Arkansas Department of Human Services (DHS) appeals from an order, issued by the Pulaski County Court, Juvenile Division, holding DHS (Division of Children and Family Services) in willful contempt of an order filed May 1, 1990, in a dependency/neglect proceeding.

The order involved Ms. Deirdre Clark and her two sons. The boys had previously been placed in foster care, however, Ms. Clark was striving to regain custody. A hearing was conducted to determine what family services should be provided by DHS and the court ordered the children returned to their mother and that DHS provide certain services to the family. The court retained jurisdiction and scheduled a review hearing for April 5, 1990.

Following the review hearing, by order filed May 1,1990, the court directed DHS to: (1) pay $5.50 monthly for medication for Ms. Clark; (2) provide bus tokens or bus credit for each individual family member; and (3) provide the full entitlement of preventative funds to Ms. Clark. DHS filed an appeal and a motion for stay. The motion for stay was denied and the order was affirmed by this Court on January 28,1991. See Arkansas Department of Human Services v. Clark, 304 Ark. 403, 802 S.W.2d 461 (1991).

At a review hearing on July 5, 1990, the court found that DHS had not complied with the prior orders concerning medication, transportation and family financial concerns. A hearing was scheduled for August 2,1990, to show cause why DHS should not be held in contempt for violations of paragraphs 5,9, and 12 of the May 1, 1990 order. Following that hearing the court found that DHS was in contempt and imposed a fine of $250.00.

The trial court did not designate whether it was holding DHS in criminal or civil contempt, however, the record reveals that the $250.00 was not imposed to compel DHS to act, rather, it was punishment of the disobedience of an order previously made. Hence, this was a criminal contempt proceeding. See Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988).

In reviewing cases of criminal contempt, we consider the evidence in a light most favorable to the trial judge’s decision to determine whether there is substantial evidence to support his finding. Yarbrough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 123 (1988); Lilly v. Earl, 299 Ark. 103, 771 S.W.2d 277 (1989).

The Department of Human Services was found to be in contempt for violating paragraphs 9 and 12 of the May 1 order. DHS concedes noncompliance, but denies that it was willful.

Paragraph 9 of the order directed DHS to provide transportation in the form of bus tokens or credit each month for all the members of the Clark family. Ms. Nelda Barnard, services supervisor for DHS, testified concerning the failure to secure the bus tokens. She testified that DHS obtained the tokens July 20, 1990, a delay of over two months. Ms. Barnard offered no justification for the delay.

Paragraph 12 of the trial court’s order called upon DHS to provide the remainder of the full entitlement of preventative funds to Ms. Clark. Ms. Billye Burke, the in-home services coordinator of field operations support unit for the Division of Children and Family Services, administered the cash assistance program referred to in paragraph 12. Ms. Burke testified she was aware after the April 5 hearing that certain cash disbursements were ordered, but explained that payment of the money was not in compliance with agency policy and could result in an audit leading to a penalty of funds reduction. Ms. Burke testified that DHS did not comply with the court’s order because the DHS staff was under the impression that the case was on appeal and assumed a stay order had been obtained.

At the hearing on the contempt motion, counsel for DHS tendered $190.00 into the registry of the court to bring it into compliance with paragraph 12. Counsel took the position that DHS did not willfully disobey the court’s order because his advice subsequent to filing a Notice of Appeal led the DHS staff to assume it would not have to provide the payments while the appeal was pending.

Regarding paragraph 12, the trial court noted that the $190.00 tender was evidence the order could have been complied with. With respect to DHS’s “willfulness” in disregarding the court’s order, the court stated, “there are various degrees of willful as there are various types of being willful, and I think in an agency this big, you’re going to have some lags in time, and we understand that. What I’m concerned with is, I think the agency just deliberately did not do very much to comply with the Court’s order until pretty much the eleventh hour.”

That was not an inapt characterization of the proof offered by DHS to explain its inaction, and while it may not have been motivated by rancor, neither was it inadvertant. We hold, therefore, there was substantial evidence to support the trial court’s finding that DHS was in willful contempt of paragraphs 9 and 12 of its May 1,1990, order. It was undisputed the order was not complied with and we find no basis for disagreement with the conclusion of the trial court that DHS’s failure to act constituted willful contempt.

Another argument of DHS is that it was in substantial compliance with the order because other equivalent cash services were provided. DHS asserts that this ongoing assistance to the family is evidence that DHS did not willfully disobey the court’s orders.

Generally, before a person or entity may be held in contempt for violating a court order, the order must be definite and distinct regarding the duties imposed. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986). This order was clear and unambiguous. Paragraph 9 directed DHS to provide bus tokens and paragraph 12 ordered the agency to provide the balance of cash assistance to Ms. Clark. Those provisions do not direct DHS to provide alternative services and, consequently, other services may not be substituted. A holding to the contrary would allow parties to ignore specific court orders and fashion their own methods of compliance.

For its final point DHS argues that the court violated Ark. Code Ann. § 16-10-108(b)(1) (1987), by ordering a fine in excess of the statutory limitation of $50. DHS recognizes that this court has previously determined that § 16-10-108 is not a limitation on the power of the courts to impose punishment for disobedience of process, because under art. 7, § 26 of the Arkansas Constitution the legislature cannot abridge the power of the courts to punish for contempt in disobedience of their process. Yarbrough v. Yarbrough, supra. Nevertheless, DHS argues that willful disobedience of process is different from willful disobedience of a court order, to which the statutory limitation applies. We disagree that disobedience of process is different from disobedience of a court order. In Smith v. Smith, 28 Ark. App. 56, 770 S.W.2d 205 (1989), the Court of Appeals addressed the same issue. In Smith, the appellant was sentenced to 84 days of incarceration for violating an order regarding child visitation. In discussing the trial court’s authority to sentence Mr. Smith to 84 days in jail, the Court of Appeals wrote:

An order of court is process, and while the constitution delegated authority to the legislature to regulate punishment for contempt, this delegation has been construed by the Supreme Court to be in addition to and not in derogation of the inherent power of the court. Pursuant to its inherent power, the court may also punish for contempt, which includes disobedience of process. The term “process” has been defined broadly by our statutes and case law. Ark. Code Ann. § 16-55-102(a) (16) (1987) provides that “[p]rocess means a writ or summons issued in the course of judicial proceedings.” Subsection (a) (23) of that provision defines “writ” as meaning an order or precept in writing, issued by a court, clerk or judicial officer. The Supreme Court has stated that “[p]rocess in the sense of the statutes is a comprehensive term which includes all writs, rules, orders, executions, warrants or mandates issued during the progress of an action.” Henderson v. Dudley, 264 Ark. 697, 709, 574 S.W.2d 658, 665 (1978). [Emphasis added.]

Id. at 65, 770 S.W.2d at 210.

In Hickinbotham v. Williams, Chancellor, 228 Ark. 46, 305 S.W.2d 841 (1957), the Supreme Court discussed the underlying necessity for contempt powers:

Fines and jail sentences are given, not only as punishment for disregarding the court’s orders, but of equal importance, for the purpose of deterring a defendant from future disregard of such orders. Not only does such action act as a deterrent to the particular defendant charged with contempt, but also to others who might contemplate disobedience of a court order. To summarize, contempts are punishable because of the necessity of maintaining the dignity of, and respect toward, the courts, and their decrees.

Id. at 50, 305 S.W.2d at 843.

Thus, the statutory limitation is not applicable to judicial orders, and to hold otherwise would defeat the court’s inherent power to enforce its orders.

Affirmed.