source: Caselaw Access Project

author: Robert L. Brown, Justice. Jim Hannah, Justice, sent. I disagree with

license: Public Domain

text:
    Rudolph ZANGERL, III v. STATE of Arkansas
    CR 02-1296
    100 S.W.3d 695
    Supreme Court of Arkansas
    Opinion delivered March 13, 2003

      Alvin Schay, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Rudolph Zangerl, icappeals e. judgment of conviction for third-offense DWI and asserts a violation of his right to a speedy trial. We agree that his speedy-trial rights were violated, and we reverse his judgment of conviction and dismiss the case.

On August 25, 1999, Zangerl was arrested for driving while intoxicated in the city of Humphrey. He was issued a ticket by the arresting police officer and advised of his court-appearance date of September 14, 1999, in Humphrey city court for taking a plea. That plea date was subsequently continued in order to give Zangerl an opportunity to consult with an attorney. On November 9, 1999, Zangerl entered a plea of not guilty in city court, and his trial was set for December 14, 1999. On December 14, 1999, the case was transferred to the Arkansas County Circuit Court on the belief that this was Zangerl’s fourth DWI offense and, as such, a felony.

On January 18, 2000, an information was filed in circuit court charging Zangerl with fourth-offense DWI. Zangerl’s pretrial hearing was set for June 12, 2000, and his jury trial was set for July 6, 2000. On June 9, 2000, Zangerl moved for a continuance of his pretrial hearing, because his counsel was in the process of preparing pretrial motions. On June 13, 2000, the circuit court reset his pretrial hearing for June 26, 2000. On June 21, 2000, Zangerl filed two pretrial motions. The first motion was to exclude his prior DWI convictions based upon a violation of the ex post facto clause, while the second motion was to exclude the prior convictions due to the statute of limitations.

On June 26, 2000, the court held Zangerl’s pretrial hearing. At the hearing, defense counsel informed the court that Zangerl’s pretrial motions “[were] of a variety that can be dealt with by the Court, based on the motions and perhaps, briefs [,]” but that Zangerl “would not need an evidentiary hearing on those.” The court then “ma[d]e the briefs due” on July 11, 2000, and reset the trial for August 10, 2000. The jury trial did not take place on July 6, 2000, and no explanation for this is contained in the record.

On August 16, 2000, which was six days after the scheduled trial date, the court reset the trial date for October 12, 2000, and stated the reason as “docket congestion, older case tried[.]” On October 19, 2000, which was seven days after the scheduled trial date, the court reset the case for January 4, 2001, and stated the reason as “Defendant’s request, waiting on a brief from Mr. Molock[.]” On January 11, 2001, which was seven days after the scheduled trial date, the court again reset the trial for February 13, 2001, at the State’s request. On January 23, 2001, the circuit court entered its order denying Zangerl’s two motions to exclude prior DWI convictions. On January 30, 2001, Zangerl waived his right to a jury trial. On March 1, 2001, the court reset the case for a nonjury trial to be held on April 16, 2001.

On April 9, 2001, Zangerl filed his motion to dismiss based on an alleged violation of his right to a speedy trial. In his brief-in-support of the motion, Zangerl conceded that 181 days should be charged to him in the speedy-trial calculations. On April 16, 2001, the motion was heard before Zangerl’s bench trial. At the hearing, Zangerl argued that his right to a speedy trial had been violated in that he was tried on the 566th day following his arrest on August 25, 1999. He then conceded that the following time periods should be charged to him: September 16, 1999, to November 9, 1999, for continuances at his request; June 21, 2000, to July 26, 2000, for the time in which his motion to exclude prior convictions was filed and heard; July 6, 2000, to August 8, 2000, for a continuance at his request; and February 13, 2001, to April 16, 2001, for his request to have a non-jury trial rather than a jury trial. The total days conceded by Zangerl was 164.

The State responded that even using the arrest date of August 25, 1999, as a starting point, the State was still within its time because only 275 days were attributable to either the circuit court’s or State’s requests or actions. Zangerl then made four arguments in reply: (1) that in response to the State’s statement that the October 12, 2000 trial resetting was at the defendant’s request due to his inability to get to Arkansas County because he was in school in Jonesboro, there had been no time in which he was unable to attend because of school; (2) his request to change a pretrial-hearing date did not affect the trial date; (3) a continuance for docket congestion requires exceptional circumstances to be set out in the docket sheet or by court order under the criminal rules; and (4) his motions to exclude prior convictions of June 21, 2000, did not contain requests for a continuance; thus, the continuance on October 19, 2000, stating “Defendant’s request, waiting on a brief from Mr. Molock” was in error. Zangerl claimed that the State was still 46 days over the 365-day limit. The State countered that even assuming this, the delay had been only 336 days. The court denied Zangerl’s motion and, after the ensuing trial, found him guilty of DWI.

On May 29, 2001, the court held a sentencing hearing. At the sentencing hearing, the State conceded that this was Zangerl’s third DWI offense, not his fourth. Thus, the crime was a misdemeanor, not a felony. The court then sentenced Zangerl to sixty days in jail and ninety days of community service, and ordered him to pay a fine of $3,500 plus $300 in costs. The court further ordered that his driver’s license be revoked. On June 8, 2001, the court entered an order memorializing the judgment of conviction and sentence.

Zangerl appealed his conviction and sentence to the court of appeals, and the court of appeals reversed the conviction in an unpublished opinion and dismissed. See Zangerl v. State, No. CACR01-1437 (Nov. 13, 2002). This court subsequently granted the State’s petition for review. When we hear an appeal pursuant to a grant of a petition for review, we review the matter as if it were originally filed in this court. See Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002); Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002).

Zangerl’s sole point on appeal is that the circuit judge erred in denying his motion to dismiss on speedy-trial grounds. The apposite law governing speedy trials has been often stated by this court. Arkansas Rule of Criminal Procedure 28 governs speedy-trial determinations. It requires the State to try a defendant within twelve months, excluding any periods of delay authorized by Ark. R. Crim. P. 28.3. See Ark. R. Crim. P. 28.1 (2002); Miles v. State, 348 Ark. 544, 75 S.W.2d 677 (2002). The time for trial begins to run from the date the charge is filed; however, if prior to that time, the defendant has been continuously held in custody, on bail, or lawfully at liberty, the time shall begin to run from the date of arrest. See Ark. R. Crim. P. 28.2(a); Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Once a defendant demonstrates a prima facie case of a speedy-trial violation, the burden is on the State to show that the delay was the result of the defendant’s conduct or was otherwise justified. See Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (2002); Burmingham v. State, 346 Ark. 78, 57 S.W.3d 118 (2001). If .a defendant is not brought to trial within the requisite time, Ark. R. Crim. P. 30.1 provides the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that discharged offense. See Moody v. Arkansas County Circuit Court, 350 Ark. 176, 85 S.W.3d 534 (2002).

Zangerl was arrested on August 25, 1999 for driving while intoxicated. His trial commenced on April 16, 2001, which was the 600th day following his arrest. Because Zangerl has made a prima facie showing of a speedy-trial violation, the State must show that 235 days of delay were caused by the defendant or otherwise legally justified. See Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000).

Zangerl initially conceded before the circuit court that 181 days were excludable due to his delay. On appeal, however, he concedes 188 days are attributable to him. However, as the State points out, the correct dates and calculation of days of the times conceded by Zangerl are as follows:

(1) September 14, 1999 to November 9, 1999, due to Zangerl’s request for a continuance to consult an attorney, for a total of 56 days;
(2) June 21, 2000 to July 26, 2000, for the period in which appellant’s pretrial motion was under advisement;
(3) July 6, 2000 to August 10, 2000, due to Zangerl’s request for a continuance, for a total of 50 days (due to overlap of prior period); and
(4) February 13, 2001 to April 16, 2001, due to Zangerl’s request for a non-jury trial, for a total of 62 days.

Using these- corrected dates and calculations, it appears Zangerl concedes that a total of 168 days are chargeable to him rather than 164, 181, or 188 days. The State, however, argues that 70 more days should be charged to Zangerl. It contends that the entire period from August 10, 2000, until at least October 19, 2000, on which the docket sheet reflects the case was reset while “waiting on brief [from] Mr. Molock[,]” should be excluded. We disagree.

On June 21, 2000, Zangerl did indeed file his motions to exclude his prior convictions. The court addressed the status of the motions in its pretrial hearing held on June 26, 2000. At that time, the following colloquy took place between counsel and the court:

Defense Counsel: . . . And I think [the motions] are of a variety that can be dealt with by the Court, based on the motions and perhaps briefs, but that we would not need an evidentiary hearing on those. . . .
The Court: Well, let’s see, it will obviously be •— we are not going to be ready for trial on the sixth?
Defense Counsel: I doubt it, as far as getting the motions resolved by that time.
The Court: Why don’t we make the briefs due, like, the eleventh, and re-set the trial —
Case Coordinator: August 10.

It appears clear to this court that the court requested briefs to be filed by July 11, 2000.

Arkansas Rule of Criminal Procedure 28.3(a) provides in pertinent part that “[n]o pretrial motion shall be held under advisement for more than thirty (30) days, and the period of time in excess of thirty (30) days during which any such motion is held under advisement shall not be considered an excluded period.” Ark. R. Crim. P. 28.3(a) (2002). The State contends, however, that under the facts of this case, the motions filed by Zangerl were not “under advisement” until the briefs were filed, which, as of October 19, 2000, they had not been. Again, we disagree. In Ferguson v. State, supra, this court addressed a similar scenario and held as follows:

For example, on July 15, 1996, Appellant filed a motion to suppress the custodial statements made by Appellant to his fellow inmates. On August 5, 1996, a continuance was granted upon agreement of the parties to obtain additional information from the lead police investigator that was pertinent to his pretrial motions. The suppression hearing was held on November 4, 1996. At the conclusion of the hearing, the trial court took the motion under advisement and requested briefs from both sides. No ruling was made within thirty days after the hearing. The thirtieth day from the date of hearing was December 3, 1996. Thus, under our holding in Gwin, the period of time from July 15 to December 3, 141 days, should be excluded from the calculation of speedy trial as a period of delay attributable to hearings on a pretrial motion.

Ferguson, 343 Ark. at 171, 33 S.W.3d at 123. See also Gwin v. State, 340 Ark. 302, 306, 9 S.W.3d 501, 504 (2000) (” . . . the excluded period contemplated by the rule begins at the time the pretrial motion is made and includes those periods of delay attributable to the defendant until the motion is heard by the court and not more than thirty days thereafter.”). Although the State claims that in the instant case, appellant’s motions were not “heard” at the June 26, 2000 hearing, the prosecutor was in fact present and represented as stated on the cover page of the hearing’s transcript. The prosecutor failed to object to Zangerl’s counsel’s statement that the motions could be decided on the motions or briefs. Moreover, the record fails to reflect that any briefs were filed by either party.

The State submits as persuasive authority the United States Supreme Court decision of Henderson v. United States, 476 U.S. 321 (1986), and argues that it stands for the proposition that a motion is not “under advisement” until all the papers it reasonably expects to aid it in ruling on the motion are received. The State’s citation is unpersuasive. The Court said in Henderson that it was “consistent with [the] exclusion [permitted by another statute] to exclude time when the court awaits the briefs and materials needed to resolve a motion on which a hearing has been held[.] . . . We therefore hold that subsection (F) excludes time after a hearing has been held where a district court awaits additional filings from the parties that are needed for proper disposition of the motion.” 476 U.S. at 331. The facts in Henderson are not the facts in the instant case, as we have no evidence before us that briefs were ever filed in this case. Ultimately, the circuit court apparently decided the motions without briefs. Why there was such a delay in deciding the motions is unclear. What we do know is that the circuit court asked that briefs be submitted on July 11, 2000, and that the circuit court noted it was “waiting” on defense counsel’s brief on October 19, 2000. Zangerl denies that he requested a continuance based on briefing.

We conclude that Rule 28.3(a) is clear in its terms and provides that no pretrial motion shall be held under advisement for more than thirty days, and our case law confirms this. The question then becomes when was the case taken under advisement. We answer the question by looking to the date that the judge asked for briefs, July 11, 2000. Hence, thirty days from that date would be August 10, 2000. However, this time period was within the time already conceded by Zangerl as chargeable to him. Accordingly, the State still fails to meet its burden of showing that the delay in trying Zangerl was the result of his conduct or otherwise legally justified. In sum, we conclude the following time is chargeable to the State:

August 25, 1999 — September 14, 1999 20 days
November 9, 1999 —June 21, 2000 225 days
August 10, 2000 — February 13, 2001 187 days
Total 432 days

There is one further point. As stated previously, Zangerl filed his motion to dismiss on April 9, 2001. The date the speedy-trial motion is filed by a defendant tolls the running of the time for speedy trial under our rules. See Doby v. Jefferson County Circuit Court, 350 Ark. 505, 88 S.W.3d 824 (2002); Moody v. Arkansas County Circuit Court, supra; Ibsen v. Plegge, supra. This time between August 25, 1999, and April 9, 2001, is 593 days. Thus, the State had the burden of showing that at least 228 days were properly excluded in order for Zangerl to have been timely brought to trial. Here, Zangerl only conceded 168 days were chargeable to him. Thus, the State was left with the burden of showing that at least 60 additional days could be properly excluded. This the State failed to do.

Again, we are mindful of the fact that on October 19, 2000, there was a letter from the court resetting the case which referred to “Defendant’s request, waiting on a brief from Mr. Molock[.]” Defense counsel disputes the fact that he requested a continuance for briefing purposes. We admit to some ambivalence on the point in light of this docket entry. Nevertheless, the question is whose obligation is it to bring a defendant to trial in 365 days. Our Criminal Rule 28 places that burden squarely on the shoulders of the State. In this case, approximately four months passed from the date pretrial motions were filed to October 19, 2000, and seven months passed between the time the motions were filed and their denial. The circuit court ordered briefs due by July 11, 2000, and they apparently were never filed. Saddling the defendant with a four-month or seven-month delay because pretrial motions were not decided runs counter to the express policy behind Rule 28 and specifically Rule 28.3(a), which expressly limits excludable time for pretrial motions. A defendant is not required to bring himself to trial or “bang on the courthouse door” to preserve his right to a speedy trial; the burden is on the courts and the prosecutors to see that trials are held in a timely fashion. Nelson v. State, 350 Ark. 311, 86 S.W.3d 909 (2002) (quoting Burmingham v. State, supra). See also Jones v. State, 347 Ark. 455, 65 S.W.3d 402 (2002).

Under the dissent’s analysis, there was no obligation on the part of the State or the court to move this case along even though Rule 28.3(b) specifies a 30-day time limit for an exclusion after pretrial motions are taken under advisement. We believe the date the briefs were due must be the operative date. Otherwise, a circuit court could set a date for briefs and then the State and the court could wash their hands of any responsibility to comply with the speedy-trial rule until the briefs were filed. That could take seven months, which is exactly what occurred in the case before us. And we still do not know whether a brief was actually filed or whether only cases were sent to the court because no evidence of this is in the record. Such a loophole undermines completely the obligation of the State and the court to bring a person to trial within twelve months of the date of arrest: Again, our Rule 28.3(b) is clear ■ — ■ only thirty days from when the motion was taken under advisement is excludable. The rule makes no reference to when the matter was “heard.”

We conclude that the State failed to meet its burden of showing that the seventy days between August 10, 2000, and October 19, 2000, are chargeable to Zangerl. This is especially true in light of the policy expressed in Rule 28.3(a) relating to excludable time for pretrial motions. Because we decide the issue on this basis, we need not address Zangerl’s second point that a mere reference to “docket congestion, older case tried” does not comply with Rule 28.3(b).

Reversed and dismissed.

Glaze, Corbin, and Hannah, JJ., dissent..

Jim Hannah, Justice, sent. I disagree with

dissenting. I must respectfully dissent. I disagree with the majority’s finding that Zangerl’s case was taken under advisement on July 11, 2000, the date the briefs were to be submitted to the trial court. I agree with the State’s contention that the entire period from August 10, 2000, until at least October 19, 2000, should be excluded.

Rule 28.3(a) of the Arkansas Rules of Criminal Procedure provides, in part, that “[n]o pretrial motion shall be held under advisement for more than thirty (30) days, and the period of time in excess of thirty (30) days during which any such motion is held under advisement shall not be considered an excluded period.” At the pretrial conference on June 26, 2000, the following colloquy took place between defense counsel and the trial court:

Defense Counsel: . . . And I think [the motions] are of a variety that can be dealt with by the Court, based on the motions and perhaps briefs, but that we would not need an evidentiary hearing on those ....
* * *
The Court: Why don’t we make briefs due, like, the eleventh. . . .

Clearly, the June 26 pretrial conference was not a hearing on the motions, and the motions were not submitted to the court for decision on that date, nor were the motions taken under advisement on that date. For whatever reason, Zangerl failed to file a brief on July 11.

The majority states that the issue is “when was the case taken under advisement.” The answer, according to the majority, is “the date that the judge asked for briefs, July 11, 2000.” By stating that the first day the motion was held under advisement is the date that the brief was due, the majority, in effect, condones Zangerl’s refusal to comply with the court’s order to submit his brief on July 11, 2000.

In Gwin v. State, 340 Ark. 302, 306, 9 S.W.3d 501 (2000), we held that the excluded period contemplated by Rule 28.3(a) “begins at the time the pretrial motion is made and includes those periods of delay attributable to the defendant until the motion is heard hy the court and not more than thirty days thereafter.” (Emphasis added.) Zangerl made his pretrial motions on June 21, 2000. The motion was not heard by the court on July 11; rather, the briefs were due on July 11. It is obvious from the docket sheet that Zangerl’s brief had still not been received on October 19, 2000.

The majority states that we addressed a similar scenario in Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000), where we stated:

For example, on July 15, 1996, Appellant filed a motion to suppress the custodial statements made by Appellant to his fellow inmates. On August 5, 1996, a continuance was granted upon agreement of the parties to obtain additional information from the lead police investigator that was pertinent to his pretrial motions. The suppression hearing was held on November 4, 1996. At the conclusion of the hearing, the trial court took the motion under advisement and requested briefs from both sides. No ruling was made within thirty days after the [suppression] hearing. The thirtieth day from the date of [the suppression] hearing was on December 3, 1996. Thus, under our holding in Gwin, the period of time from July 15 to December 3, 141 days, should be excluded from the calculation of speedy trial as a period of delay attributable to hearings on a pretrial motion.

Ferguson, 343 Ark. at 171 (emphasis added).

Ferguson, supra, is distinguishable from the present case. In the present case, there was no hearing on the merits of Zangerl’s pretrial motions prior to the trial court’s request on June 26 that briefs be submitted on July 11. The facts indicate that in Ferguson, supra, the trial court conducted a suppression hearing, where it addressed the merits of the motion, prior to the request for briefs. The majority indicates that the court addressed the “status” of the motions in the pretrial hearing held on June 26; however, the “status” hearing did not include a hearing on the merits of Zangerl’s motions.

The majority states that “we have no evidence before us that briefs were ever filed in this case.” Although the actual briefs are not included in the record, we do have evidence before us that briefs were filed. On April 6, 2001, prior to Zangerl’s trial on the merits, defense counsel acknowledged that he had filed a brief, stating:

Defense Counsel: . . . pB]riefs or authorities were directed to be supplied and in all being perfecdy candid with the Court, I do not know what date I supplied those - my authorities to the Court. Unfortunately, my transmittal letter to the Court which was prepared by myself and not by my secretary who does much better work, did not have a date.

Later, defense counsel argued that the continuance noted on the docket sheet on October 19, which stated that the case was reset at the defendant’s request, could not be charged against Zangerl because there was no record of a request by the defense. Defense counsel stated:

Defense Counsel: There is no Motion, there is no letter that was charged to the defense I guess administratively by the Court because it’s apparently attributable to the fact that Your Honor did not have my brief.

It is clear from the record that Zangerl did submit a brief. It is equally clear from the record that Zangerl’s attorney knew that he had been directed by the trial judge to submit a brief and that the trial judge was waiting on the brief before he decided the motion.

The majority is correct in stating that the issue is “when was the case taken under advisement.” The thirty-day rule in Rule 28.3 is not triggered until the motion is heard by the trial court and is submitted to the trial court for decision. In this case, there was neither a hearing on the merits of Zangerl’s motion nor was the case submitted to the trial court for decision prior to October 19, 2000. At the June 26, 2000, pretrial conference, the trial court requested briefs. It is clear that Zangerl’s motions were not submitted to the trial court for decision until the briefs were filed. A trial court cannot take a motion under advisement until the motion has been submitted for decision to the trial court. The docket entry on October 19, 2000, which stated that Zangerl’s brief had not been received, leaves no doubt that the trial court did not consider Zangerl’s motions submitted for decision as of that date. The trial could not proceed until Zangerl’s motions were decided.

The period from August 10, 2000, to October 19, 2000, a total of 70 days, should be excluded. When the period of 70 days is subtracted from the majority’s total of 432 days, the number of days which can be excluded is 362 days, an amount which is within the speedy-trial period.

The trial court’s denial of Zangerl’s motion to dismiss should be affirmed.

Glaze and Corbin, JJ., join this dissent.

       Both the appellant and the State contend that 599 days elapsed between Zangerl’s arrest and his bench trial. However, our calculations reveal that April 16, 2001, the date of Zangerl’s bench trial, was the 600th day counting from the day after his arrest on August 25, 1999. See Ark. R. Crim. P. 1.4. The discrepancy may be due to the fact that 2000 was a leap year.

       As the majority points out, Zangerl conceded the period from June 21, 2000, to August 10, 2000. The only time period at issue is the period between August 10, 2000, and October 19, 2000.


author: Ray Thornton, Justice.

text:
    FIRST NATIONAL BANK of DeWitt v. William Claude “Bill” CRUTHIS, Jr. and Terry Cruthis, d/b/a Cruthis Brothers
    02-610
    100 S.W.3d 703
    Supreme Court of Arkansas
    Opinion delivered March 13, 2003

      Russell D. Berry and Bradley A. Chambless, for appellant.

      T. David Carruth, for appellee.
   Ray Thornton, Justice.

Appellant, First National tice. (“Bank”), appeals the trial court decision in favor of appellees, William Cruthis and Terry Cruthis, d/ b/a Cruthis Brothers, refusing to grant its motion to dismiss based on Rules 12 and 13 of the Arkansas Rules of Civil Procedure. We hold that the action was a compulsory counterclaim and must have been brought as such. Accordingly, we reverse and dismiss.

The Bank financed the Cruthises’ farming operations by making loans for the production of crops. The loans were secured by the Cruthises’ farm equipment and crops. In October and November of 1995, the Bank made a wheat-production loan to the Cruthises to finance that year’s wheat and oat crops. The loan was also secured by the crops.

In March of 1996, the Cruthises discontinued their farming operation and informed the Bank that they had no funds to continue production of the wheat and oat crop that was growing. The Cruthises surrendered the crop to the Bank to complete the harvest. After evaluating the benefits of completing the crop, the Bank decided to complete production.

As the crop approached maturity, the market price of wheat and oats increased and the Cruthises asked the Bank to enter a booking contract in order to secure the higher price. The Bank entered the booking contract with Bunge Corporation (“Bunge”) for the sale of 11,000 bushels of wheat. However, on May 21, 1996, the Cruthises told the Bank that the crop should be delivered to Stratton Seed Company (“Stratton”) on booking contracts that the Cruthises had entered prior to relinquishing possession, and the Cruthises threatened action for conversion if the crop was delivered to Bunge.

The Bank hired Mike Walton to harvest the wheat. Mr. Walton cut and delivered one trailer load of wheat to Stratton, as requested by the Cruthises and over the Bank’s objections. Mr. Walton abandoned his job, and the Cruthises rented machinery to complete production, delivering all the remaining crops to Stratton. The Cruthises disavowed any contract with Bunge, and the Bank terminated the contracts with Bunge. Bunge then paid $5,920.00 to the Bank, pursuant'to their contract, to compensate for the drop in the price of wheat.

After the harvest was completed in August of 1996, the Cruthises delivered settlement checks from Stratton payable to the Cruthises, the Bank, and Stratton. In the settlement checks, Stratton allocated rental shares and set prices over the Bank’s objection. The Bank did not negotiate these checks. The Bank then filed suit in Arkansas County Chancery Court in May, 1997, against Stratton, the Cruthises, and the Cruthises’ parents on the basis of equitable theories for the recovery of property lost in the liquidation of the Cruthises’ equipment and crops. In April 1998, the Cruthises and their parents brought this action based on conversion, fraud, tortious interference with a contract, breach of fiduciary duty, slander of tide and defamation against the Bank in Monroe County Circuit Court. The Bank responded with a motion to dismiss due to the pendency of the action in the Arkansas County Chancery Court pursuant to Rules 12 and 13 of the Arkansas Rules of Civil Procedure, as well as a general denial asserting its security interest and its rights as a secured party. The trial court denied the motion to dismiss.

The Cruthises’ causes of action for conversion, interference with a contractual relationship, and breach of fiduciary duty proceeded to trial. The trial court also ruled as a matter of law that a fiduciary relationship to the Cruthises was imposed upon the Bank. The jury was instructed upon the theories of conversion, tortious interference with a contract, and over the Bank’s objection, on breach of fiduciary duty.

The jury returned a verdict of $172,850.00, and the judge entered the judgment on November 13, 2001. This appeal arises from the trial court’s denial of appellant’s motion to dismiss on the basis of Rules 12 and 13, the trial court’s denial of appellant’s motion on the sufficiency of the evidence, and the trial court’s alleged error in instructing the jury on breach of fiduciary duty.

We first address the questions of whether the claims filed in Arkansas County and Monroe County arise out of the same transaction or occurrences and whether the claims are compulsory counterclaims that should have been brought in Arkansas County in response to the Bank’s complaint.

Rule 12(b) of the Arkansas Rules of Civil Procedure states in pertinent part:

Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state facts upon which relief can be granted, (7) failure to join a party under Rule 19, (8) pendency of another action between the same parties arising out the same transaction or occurrence. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief.

Id. (emphasis added). We have held that we had no choice but to dismiss the complaint where another case is pending in a different court. Patterson v. Isom, 338 Ark. 234, 992 S.W.2d 792 (1999). Where concurrent jurisdictions are vested in different tribunals, the first exercising jurisdiction rightfully acquires control to the exclusion of, and without the interference of, the other. Id., (citing Tortorich v. Tortorich, 324 Ark. 128, 919 S.W.2d 213 (1996)). When a case is brought in a court of competent jurisdiction, that court’s authority and control over the case continues until the matter is disposed of in the appellate court. Id. This rule rests upon comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results. Id. (citing Moore v. Price, 189 Ark. 117, 70 S.W.2d 563 (1934)).

Rule 13(a) of the Arkansas Rules of Civil Procedure states in pertinent part:

A pleading shall state as a counterclaim any claim which, at the time of filing the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.

Id. (emphasis added).

Linn v. Nationsbank, 341 Ark. 57, 14 S.W.3d 500 (2001), supports our conclusion that the claims at issue arise from the same set of circumstances, and therefore were compulsory counterclaims to the Bank’s complaint filed in Arkansas County. In Linn, appellants had obtained a construction loan from the bank to build a bed-and-breakfast. Construction was completed, and soon after, a dispute arose. As a result, the Linns discontinued payment on the loan and the bank responded by filing a foreclosure action in the chancery court. Two months later, the Linns filed a counterclaim, requesting that it be severed and transferred to a circuit court for jury trial. Meanwhile, the Linns filed bankruptcy in the federal district court. After that, the Linns filed a motion requesting that the court dismiss their counterclaim without prejudice. A year later, the Linns filed a complaint against the bank in the circuit court that stated that it was founded on the same action non-suited in the chancery court. It was the same claim plus new claims for breach of good faith and breach of fiduciary duty. The bank filed an answer that asserted the claims were compulsory counterclaims and were barred by res judicata or collateral estoppel. The trial court agreed and granted the summary judgment. Id.

In Linn, we held that there was “no question that the claims at issue here arose from the same set of circumstances — financing arrangements for a bed-and-breakfast facility.” Id. We further held that there was a “logical relationship . . . between the foreclosure, the counterclaim, and the subsequent complaint.” We held that the claims were compulsory counterclaims, and stated: “The purpose for this rule is to require parties to present all existing claims simultaneously to the court or be forever barred, thus preventing a multiplicity of suits arising from one set of circumstances.” Id.

In the instant case, the same “logical relationship” exists between the Bank’s financing of the farming operations, secured by the growing oat and wheat crops and the subsequent complaint by the Bank and by the Cruthises. It was the booking contracts concerning those very crops that became the subject of the dual contracts for sale of bushels of wheat and oats to both Stratton and Bunge. The purpose of booking the crops was to offset the cost of repaying the Bank’s financing of the farming operation that the Cruthises abandoned. The Bank filed suit, alleging its claim for recovery of lost property when the Cruthises liquidated their farming equipment and crops — the very crops that were the security for the financing. The Cruthises’ complaint, alleging basically the same factual circumstances as set out in the Bank’s complaint, included claims of conversion of the wheat and oat crop that was the security for the financing. The complaint alleged interference with a contractual relationship, based upon the Bank’s contract to sell to Bunge the wheat that the Cruthises argued had been sold to Stratton. Finally, the Cruthises’ complaint alleged breach of fiduciary duty, which stemmed from the Bank’s relationship with the Cruthises concerning the financing. All of these claims are inextricably tied to the same transaction. There is a “logical relationship” between the claims and the financing and liquidation of the farming operation.

In light of Linn, supra, it is clear that pursuant to Rule 12(b)(8) and Rule 13(a) the claim in Monroe County arose out of the same set of circumstances as the Bank’s complaint in Arkansas County, and therefore should have been dismissed because it should have been filed as a compulsory counterclaim to the Bank’s complaint in Arkansas County. Because we hold that the claims should have been dismissed by the trial court, we decline to reach the issues that arose during the trial in Monroe County, such as the trial court’s denial of appellant’s motion on the sufficiency of the evidence and the trial court’s alleged error in instructing the jury on breach of fiduciary duty.

We reverse and dismiss.


author: Jim Hannah, Justice.

text:
    CITY OF DOVER v. CITY OF RUSSELLVILLE
    02-308
    100 S.W.3d 689
    Supreme Court of Arkansas
    Opinion delivered March 13, 2003

      McCormick Law Firm, P.A. by: David H. McCormick, for appellant.

      Dunham & Faught, P.A, by: James Dunham; William F. Smith, III; and Alex G. Street, for appellee.
   Jim Hannah, Justice.

The City of Dover (“Dover”) appeals a judgment granting a dismissal with prejudice where the trial court found that Dover lacked standing to contest an annexation election. Dover alleges that the trial court erred in finding that it has no rights entitling it to sue. Dover asserts that it is the property owner of land annexed in the election, and therefore it may contest the election. We hold that judicial review of elections in municipal annexation as set out in Ark. Code Ann. § 14-40-304 (Repl. 1998) provides for legal action contesting compliance with the statutory requirements in annexation elections, and that Dover may contest the election. The trial court is reversed.

Facts

This case continues a longstanding dispute between Dover and the City of Russellville (“Russellville”) over land and sewage treatment. In May of 1997, Dover contracted to purchase fifteen acres of unincorporated land on which to construct a sewage-treatment facility. Construction on the facility commenced in 1997. However, Dover was sued in 1997 by Russellville, among others. City of Dover v. Barton, 337 Ark. 186, 987 S.W.2d 705 (1999) (Dover I). Russellville alleged in Dover I that Dover failed to comply with Act 1336 of 1996 which required a feasibility study showing that the proposed sewage-treatment plant could not be constructed within the existing city limits. This court reversed the trial court in Dover I, holding that the language in Act 1336 was not effective at the time construction began. Then, in City of Dover v. A.G. Barton, 342 Ark. 521, 29 S.W.3d 698 (2000) (Dover II), this court considered the appeal from the trial court’s decision after remand in Dover I. In Dover II, this court reversed summary judgment entered by the trial court, finding that Dover was required to comply with Russellville’s Land Subdivision and Development Code because the proposed sewage-treatment plant was to be built on property within one mile of Russellville city limits, or on land contiguous to property within one mile of Russellville city limits. The trial court was again reversed in Dover II.

The present case arises from an October 19, 2000, Russell-ville ordinance calling for an annexation election to annex the fifteen acres on which Dover had commenced construction of a sewage-treatment facility, as well as other land, into the city of Russellville. The election was held December 19, 2000, and the voters approved annexation. On December 29, 2000, Dover filed the present action under Ark. Code Ann. § 14-40-304, alleging Russellville failed to comply with the requirements in Ark. Code Ann. §§ 14-40-301 — 14-40-304’ (Repl. 1998 and Supp. 2001). The present case was submitted to this court previously and was remanded for failure to comply with Ark. Sup. Ct. R. 4-2. City of Dover v. City of Russellville, 351 Ark. 557, 95 S.W.3d 808 (2003).

Standard of Review

Dover appeals the dismissal of its action under Ark. R. Civ. P. 12(b)(6) (2002). When reviewing a dismissal under Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Clayborn v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.; Ark. R. Civ. P. 8(a) (2002). We look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Id.; Country Corner Food & Drug, Inc. v. First State Bank & Trust Co., 332 Ark. 645, 966 S.W.2d 894 (1998).

Standing

The trial court found that Dover was not an elector who could challenge the annexation, and also that Dover lacked any due process or other constitutional rights related to the annexation and therefore lacked standing. The trial court also noted an unidentified “related proceeding” where Dover argued Russell-ville lacked standing to challenge annexation and where the trial court agreed Russellville lacked standing. The trial court then stated that to be consistent, it would also find a lack of standing in the present case.

Russellville acknowledges that Dover owns land affected by the annexation, but argues that Dover is neither a person nor a resident who has standing, and further that Dover, as a municipal corporation with powers limited to those provided by statute, may not challenge the annexation because no statute allows it to do so. We disagree.

Russellville seeks a holding which states that, although Dover owns land included in the annexation, and on that basis would be an interested person entitled to contest the annexation, Dover may not contest the annexation because, as a municipal corporation it is not a natural person and is without power to contest the annexation. Whether a municipal corporation may contest an annexation by an election under Ark. Code Ann. § 14-40-301 is an issue of first impression. Annexation of a portion of another city or incorporated town is expressly forbidden by Ark. Code Ann. § 14-40-301. However, the statutory scheme for municipal annexation of contiguous land under Ark. Code Ann. §§ 14-40-301 — 14-40-304 does not include any discussion of annexation of land owned by another city. Dover stands in the same position as any other landowner whose land is annexed and who wishes to contest the election that resulted in annexation.

Election contests are creatures of statute and have no basis in the common law. Adams v. Dixie Sch. Dist. No. 7, 264 Ark. 178, 570 S.W.2d 603 (1978). The right to contest an annexation undertaken by election is set out in Ark. Code Ann. § 14-40-304. See also Duennenberg v. City of Barling, 309 Ark. 541, 832 S.W.2d 237 (1992). Section 14-40-304 provides that “if it is alleged that the area proposed to be annexed does not conform to the requirements and standards prescribed in § 14-40-302, a legal action may be filed in the circuit court. ...” Ark. Code Ann. § 14-40-304.

Although it is not explicitly stated in Ark. Code Ann. § 14-40-304, to have standing a party must have an interest at issue in the annexation. In Reynolds v. Guardianship of Sears, 327 Ark. 770, 940 S.W.2d 483 (1997), we cited David Newbern, Arkansas Civil Practice and Procedure § 5-15, at 61-62 (2d ed. 1993):

To be a proper plaintiff in an action, one must have an interest which has been adversely affected or rights which have been invaded. Courts will not allow suit by one who is a “stranger to the record” or for the purpose of vindicating an abstract principle of justice.

Reynolds, 327 Ark. at 775. The land upon which Dover was building a sewage-treatment facility was annexed by Russellville. Certainly Dover’s interest in the land was affected by the annexation. Dover has an interest in land that was affected by the annexation because its fifteen acres were taken by Russellville. See, e.g., Forrest Constr., Inc. v. Milam, 345 Ark. 1, 44 S.W.3d 140 (2001). Therefore, Dover has standing as a landowner affected by the annexation.

Russellville, however, argues that Dover, as a municipal corporation, is not empowered to contest the election because no statute specifically provides that municipal corporations are included as those who may bring a legal action under Ark. Code Ann. § 14-40-304. Section 14-40-304 does not specifically mention a municipal corporation. However, a municipal corporation is empowered to sue or be sued. Ark. Code Ann. § 14-54-101 (Repl. 1998). We note that although standing was not discussed in the case, City of Springdale v. Town of Bethel Heights, 311 Ark. 497, 845 S.W.2d 1 (1993), involved municipal corporations contesting the validity of annexation under Ark. Code Ann. § 14-40-301 — 14-40-304.

Municipal corporations are creatures of the legislature and only possess those powers bestowed by statute or by the Arkansas Constitution. Stilley v. Henson, 342 Ark. 346, 28 S.W.3d 274 (2000). Municipal corporations have no inherent power and can exercise only those powers expressly given by the Legislature or the Arkansas Constitution. However, municipal corporations do have powers"necessarily implied by the express powers granted, as well as those powers indispensable to the objects and purposes of the powers granted in the statutes and Arkansas Constitution. Id.

As already noted, a municipal corporation has the power to sue and be sued. A municipal corporation also has the power to acquire, hold, and possess real property. Ark. Code Ann. § 14-54-101(3) (Repl. 1998). See also City of Harrison v. Boone County, 238 Ark. 113, 378 S.W.2d 665 (1964). Further, a municipal corporation may sell property even though sale is not expressly provided for in Ark. Code Ann. § 14-54-101. See Broach v. City of Hampton, 283 Ark. 496, 677 S.W.2d 851 (1984). This is an example of a power necessarily implied from the power to hold and possess property. Likewise, a power necessarily implied from the power to hold and possess property is the power to sue and protect property interests, even though the right to sue to protect property is not expressly stated in Ark. Code Ann. § 14-54-101. See e.g. City of Springdale, supra. Thus, Dover may sue to protect its property rights.

However, Russellville argues that even if Dover has standing, it may not sue under Ark. Code Ann. § 14-40-304 because the language of Ark. Code Ann. § 14-40-304 will not permit suit by a municipal corporation, but rather is limited to suits by natural persons. Russellville asserts that Ark. Code Ann. § 14-40-301 — 14-40-304 permits participation in the suit by only the annexing municipality, the persons who reside in the annexed area, and the electors. Therefore, Russellville argues Dover may not contest the election. Russellville cites City of Cave Springs v. City of Rogers, 343 Ark. 652, 37 S.W.3d 607 (2001), in arguing Dover is not a person, noting that under Cave Springs, a municipality was not a person for purposes of asserting deprivation of Fourteenth Amendment rights. However, the opinion in Cave Springs is not so narrow as Russellville argues. It is true that in Cave Springs we held that Cave Springs was not a person for purposes of asserting Fourteenth Amendment rights, but we also stated that the City of Cave Springs was a person for purposes of declaratory relief actions under Ark. Code Ann. § 16-111-101 (1987). Thus, Cave Springs does not stand for the proposition that a municipal corporation may never be considered a person.

In any event, contrary to Russellville’s argument, the language of Ark. Code Ann. § 14-40-304 does not limit an election contest to one brought by a person. The statute provides that a legal action may be filed in the circuit court. Aside from the requirement of standing already discussed, there are no additional requirements restricting suit under Ark. Code Ann. § 14-40-304 to one brought by a natural person.

There are no prior cases interpreting who may sue under Ark. Code Ann. § 14-30-304. Thus, we must turn to statutory interpretation. The basic rule of statutory construction is to give effect to the intent of the legislature, and when a statute is clear, it is given its plain meaning. Bond v. Lavaca Sch. Dist., 347 Ark. 300, 64 S.W.3d 249 (2001). The language in Ark. Code Ann. § 14-40-304 is clear; “a legal action may be filed in circuit court.” Applying the plain meaning rule it is apparent that any property owner affected by the annexation may sue. Dover is such a property owner; therefore, Dover may sue. The trial court erred in granting the motion to dismiss.

Issues Raised by Russellville

Russellville argues that it presented the trial court with multiple independent bases for dismissal, and that even if the court finds error in the trial court on the issue of standing, this court should affirm the trial court because the right result was reached even if the trial court erred in its reasoning. Russellville asserts there are at least eight other reasons Dover failed to state a cause of action. A review of the order of dismissal fails to reveal that the trial court addressed any of the issues. Because we decide the case on standing we need not address the remaining issues.

Reversed and remanded.


text:
    John E. SEARCY, III v. Emmett DAVENPORT, Neill Reed, Stephanie E. Whitwell, and Hurley Whitwell Realty Co., Inc.
    02-729
    100 S.W.3d 711
    Supreme Court of Arkansas
    Opinion delivered March 13, 2003
    [Petition for rehearing denied April 10, 2003.]

      Appellant, pro se.

      Stephen E. Whitwell, for appellees.
   Jim Hannah, Justice.

Appellant John E. Searcy, III, appeals stice. Amended Complaint for Fraud Upon the Court and denial of his motion to recuse. We hold that this case is barred by res judicata because the fraud alleged by Searcy is a repeated allegation that he was unlawfully deprived of his property, all aspects of which were or could have been litigated in the prior action to quiet title. Searcy v. Davenport, slip op. at 1 (Ark. App. March 14, 2002). We also hold that the trial judge did not abuse his discretion in denying Searcy’s motion to recuse.

Facts

Searcy acquired forty acres in Van Burén County in 1986. Searcy then became involved in a dispute with the Internal Revenue Service over back taxes, and the forty acres were seized and sold. A deed in the record indicates that on September 18, 1995, the forty acres were deeded to the United States of America, and this same deed indicates that on June 21, 1996, the forty acres were deeded to appellees Neill Reed and Emmett Davenport by the United States in a quitclaim deed.

On June 27, 1997, appellees filed an action on the quitclaim deed to quiet title in the forty acres. On November 12, 1999, the Van Burén County Chancery Court entered a decree quieting title in appellees, specifically finding that Searcy held no interest in the forty acres. On March 14, 2001, the decision of the chancery court was affirmed. Searcy, supra.

On June 8, 2000, Searcy filed the present action for fraud on the court against Neill Reed, Emmett Davenport, Stephen E. Whitwell and Hurley Whitwell Realty Co., Inc., alleging the decree in Searcy had been procured by fraud and requested that the 1999 decree be set aside. Searcy filed an amended complaint making the same allegations, but changed the relief requested and asked for damages against appehees. However, at the hearing on the motion to dismiss in the present case, Searcy stated that he was alleging that the attempt to transfer title to appellees by the United States was fraudulent, and that he had attempted to prove this fraud in Searcy, but was prevented from doing so by the chancery court.

Searcy also moved the trial court to recuse in the present case. The motion to recuse alleges that Judge Charles E. Clawson, Jr. was biased. Searcy argued as support for the accusation of bias that Judge Clawson presided in Searcy and ruled against him on evidence and the ultimate issue of tide to the forty acres. We note that Searcy also filed a complaint with the Judicial Discipline and Disability Commission following the decision on the action to quiet title.

Res Judicata

Searcy presents the same arguments in the present action as he asserted in the earlier case in Searcy. He again asserts in the present case, as he did in Searcy, that the United States Government failed to follow lawful procedure in acquiring title, that the United States never acquired title, and that appellees therefore could not acquire title from the United States. Searcy also argues as he did in Searcy, that appellees committed a fraud upon the court by presenting the trial court with documents and making arguments to quiet title when the appellees knew that they could not acquire title because the United States had no title to pass to them.

In his answer to the petition to quiet title in Searcy, supra, Searcy asserted that the appellees had acquired no interest in the forty acres through the United States because the United States seized the forty acres from him fraudulently and without due process. He further alleged in the action to quiet title that appellees knowingly provided title documents to the trial court which the appellees knew to be fraudulent. Thus, the issue of whether appellees committed fraud in asserting a right to clear title in the forty acres was raised in Searcy, supra, and it is now being raised again in the present case.

The concept of res judicata has two facets, one being issue preclusion and the other claim preclusion. Huffman v. Alderson, 335 Ark. 411, 983 S.W.2d 899 (1998); John Cheeseman Trucking, Inc. v. Pinson, 313 Ark. 632, 855 S.W.2d 941 (1993). Under claim-preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim. Huffman, supra. Res judicata bars not only the relitigation of claims which were actually litigated in the first suit, but also those which could have been litigated. Id. Further, where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id.

Issue preclusion, or collateral estoppel, bars relitigation of issues. Crockett & Brown v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993). In State v. Thompson, 343 Ark. 135, 34 S.W.3d 33 (2000), we stated of collateral estoppel:

When an issue of ultimate fact has once been determined by a valid and final judgment, collateral estoppel precludes relitigation of that issue between the same parties in any future proceeding. E.g., Edwards v. State, 328 Ark. 394, 943 S.W.2d 600, cert. denied, 522 U.S. 950 (1997) (quoting Schiro v. Farley, 510 U.S. 222, 232 (1994)). In order to establish collateral estoppel, proof of the following is required: 1) the issue sought to be precluded must be the same as that involved in the prior litigation; 2) the issue must have been actually htigated; 3) the issue must have been determined by a final and valid judgment; and 4) the determination must have been essential to the judgment. Edwards, 328 Ark. at 401-02, 943 S.W.2d at 603.

Thompson, 343 Ark. at 139-40.

At the hearing on appellee’s motion to dismiss in the present case, Searcy responded to the assertion that he was attempting to rehágate the issue of fraud by stating that he believed the issue of fraud was a new issue. He stated:

In fact, the Chancery Court, when I attempted • — • when I attempted to prove the fraud in Chancery Court, I was prevented from — from proceeding down that road. It was considered a — separate issue, which I — I disagreed with. I think it — I think it had — it was an issue that was very — very germane to the — to the decision of that •— of that Court. And I don’t believe that those issues were ever considéred by the Chancery Court • — • or this issue — the — the issues I’m bringing forward in this case.

It is abundantly clear that Searcy sincerely believes that he has been defrauded of his interest in the forty acres. However, it is also abundantly clear that Searcy previously made these same assertions that appellees were acting fraudulently in the action to quiet title. He now makes the assertions again. The doctrine of res judicata precludes relitigation of claims already litigated. Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). Res judicata also bars relitigation of claims that could have been litigated. Linder, supra. Thus, we hold Searcy’s attempt to relitigate the issue of fraud in the present action is barred by res judicata.

However, Searcy alleges that he may raise the claim now because the trial court in the action to quiet title refused to hear the claim. Searcy does not argue that the trial court in Searcy, supra refused to rule, but rather that the trial court refused to allow him to admit evidence on the claim of fraud by appellees. Searcy thus alleges the trial court erred in admission of evidence in Searcy, supra. All issues of trial error should have been raised in the appeal from the action to quiet title. The case was affirmed on appeal, and the doctrine of res judicata precludes Searcy’s attempt to again raise the claim of fraud in the present case.

Motion to Recuse

Searcy moved for recusal, alleging that Judge Clawson had presided in Searcy, supra, and that throughout that litigation Judge Clawson had refused to consider his claims of fraud, refused to consider the issue of whether the federal government had lawfully seized his property, and stopped him from putting on evidence of fraud. Searcy further alleged that Judge Clawson was biased in favor of appellees, and that he acted summarily and refused to provide conclusions of fact and law underlying his decision quieting title in the forty acres. The trial court denied the motion to recuse.

The rule is long established that there is a presumption of impartiality on the part of judges. City of Dover v. City of Russellville, 346 Ark. 279, 57 S.W.3d 171 (2001). A judge’s decision to recuse is within the trial court’s discretion and will not be reversed absent abuse. Id; Trimble v. State, 336 Ark. 437, 986 S.W.2d 392 (1992). The party seeking recusal must demonstrate bias. Bradford v. State, 328 Ark. 701, 947 S.W.2d 1 (1997). Further, unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias. City of Dover, supra.

Searcy offers no facts to show bias. The mere fact that Judge Clawson ruled against Searcy in the prior case is not sufficient to demonstrate bias. Irvin v. State, 345 Ark. 541, 49 S.W.3d 635 (2001). In addition, the mere fact that Searcy filed a petition with the Judicial Discipline and Disability Commission against Judge Clawson is not sufficient to demonstrate bias. Bias must be demonstrated. Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999). Whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge. Irvin, supra. We find no abuse of discretion in denial of the motion to recuse.

Affirmed.


author: Per Curiam.

text:
    Carl JOHNSON v. STATE of Arkansas
    CR 03-170
    100 S.W.3d 739
    Supreme Court of Arkansas
    Opinion delivered March 13, 2003

      John Joplin, for appellant.
    No response.
   Per Curiam.

John Joplin, a full-time, state-salaried pubriam. in Sebastian County, was appointed by the trial court to represent appellant, Carl Johnson, an indigent defendant, on the charge of murder in the first degree. Following a trial held on November 15, 2002, appellant was found guilty and sentenced to serve forty years in the Arkansas Department of Correction and to pay a fine of $15,000. A timely notice of appeal was filed with the circuit clerk, pursuant to Ark. R. App. P. — Crim. 10, and the record was timely lodged in this court.

Mr. Joplin now asks to be relieved as counsel for appellant in this criminal appeal, based upon the cases of Rushing v. State, 340 Ark. 84, 8 S.W.484 (2000) (holding that full-time, state-salaried public defenders were ineligible for compensation for their work on appeal) and Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000) (per curiam) (relieving appellant’s court-appointed public defender and appointing new counsel on appeal).

Since the time of those decisions, the law was changed by the General Assembly. Act 1370 of 2001 provides in part: “[PJersons employed as full-time public defenders, who are not provided a state-funded secretary, may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals.” That provision is now codified as Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2001).

Mr. Joplin’s motion states that he is provided with a full-time, state-funded secretary. Accordingly, we grant his motion to withdraw as attorney. Mr. Tim Cullen will be substituted as attorney for appellant in this matter. The Clerk will establish a new briefing schedule.