author: Steele Hays, Justice.

text:
    Harold Lee MORRIS v. John GARMON
    84-267
    686 S.W.2d 396
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985
    [Rehearing denied April 22, 1985.]

      Martin, Vater & Karr, by: Charles Karr, for appellant.

      Bethell, Callaway, Robertson & Beasley, by: Edgar E. Bethell, for appellee.
   Steele Hays, Justice.

By this appeal we are asked to reverse a probate court finding that Mrs. Alren Morrison was domiciled in Ft. Smith, Arkansas when she executed a will in November, 1979, and when she died in August, 1983. This dispute over a part of her estate is between her brother, the devisee under her will, and her son-in-law and two granddaughters, the appellees.

Mrs. Morrison and her husband had lived in Ft. Smith for many years. After Mr. Morrison’s death in 1975 she continued to live in the home until 1979, when she fell and broke her hip. When she was ready to leave the hospital her adopted daughter, Andrea Garmon, arranged for her to be moved to a Norman, Oklahoma, nursing home, near where Mrs. Garmon lived.

In September of that year, Mrs. Garmon died from a recurrence of hepatitis. Some days later, Mrs. Morrison executed a will leaving her estate to John Garmon, expressing confidence that he would care for her two minor granddaughters, Kristin Garmon and Katherine Garmon. John Garmon and his daughters are the appellees. On Mr. Garmon’s petition, Mrs. Morrison’s assets were placed in a conservatorship. In October, 1979, Mrs. Morrison’s brother, appellant Harold Morris, moved Mrs. Morrison to a nursing home in Ft. Worth.

In November of 1979, shortly after arriving in Ft. Worth, Mrs. Morrison executed a new will leaving everything to Harold Morris, or if he failed to survive her, to another brother, and if he failed to survive, to a niece. In August, 1983, Mrs. Morrison died in Ft. Worth.

Harold Morris offered the will for probate in Tarrant County, Texas, and letters testamentary were issued. He then obtained an order in Oklahoma, directing the conservator to deliver the Oklahoma assets to him as executor.

In January, 1984, John Garmon petitioned the Sebastian Probate Court for letters of administration on the grounds that Mrs. Morrison was domiciled in Ft. Smith when she died and that her two granddaughters were pretermitted heirs under the Texas will. Harold Morris responded, alleging that Mrs. Morrison was a domiciliary of Ft. Worth. The probate judge found Mrs. Morrison to have been domiciled in Ft. Smith when she executed the second will and when she died, that the will should be construed according to Arkansas law, under which Mrs. Morrison’s granddaughters were undisputably pretermitted heirs. The order directed Mr. Morris to deliver to the administrator the assets he was holding as executor.

Two points are presented on appeal: The Sebastian Probate Court erred in failing to give full faith and credit to the order of the Tarrant County Probate Court, admitting the will to probate in Texas, and the finding that Mrs. Morrison was domiciled in Ft. Smith is clearly erroneous.

The appellees maintain the full faith and credit argument was not presented to the probate judge, and the record bears out this contention. We find no mention of the argument in the proceeding below. The appellant introduced the will, the order of probate and other filings from the Texas and Oklahoma proceedings, but those documents were offered on the issue of domicile and do not impliedly express a full faith and credit argument not otherwise stated. Moreover, at the outset of the hearing below both sides informed the probate judge that the disputed issue was whether Mrs. Morrison was domiciled in Arkansas or in Texas when her will was made and when she died. We conclude the constitutional argument was not presented to the trial court and, hence, cannot be raised on appeal. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983).

Appellant argues the issue of domicile is res judicata as that question was decided between these parties in connection with the Oklahoma proceedings. As with the full faith and credit issue, the point was not presented nor ruled on below.

Appellant’s argument fails in any case. The Arkansas court could properly address the issue of domicile, as such a finding by a foreign court in a probate proceeding goes to jurisdiction and can be considered collaterally by a second state without a violation of the full faith and credit clause. See Leflar, American Conflicts Law, pp: 411-412; Wills, 80 Am. Jur.2d § 1056, p. 185; Matter of Will of Lamb, 30 N.C. 452, 279 S.E.2d 781 (1981); Burbank v. Ernst, 232 U.S. 162 (1914); Re: Clark’s Estate, 148 Cal. 108, 82 P. 760 (1905); Smith v. Normart, 75 P.2d 38 (Ariz. 1983); Scripps v. Durfee, 131 Mich. 265, 90 N.W. 1061 (1902). And see Phillips v. Sherrod Estate, 248 Ark. 605, 453 S.W.2d 60 (1970).

With respect to the second point, we cannot say the finding as to domicile was clearly erroneous. “To effect a change of residence or domicile, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last-acquired residence a permanent home.” Phillips v. Sherrod Estate, supra; Oakes v. Oakes, 219 Ark. 363, 252 S.W.2d 128 (1951). The intent to abandon one’s domicile and take up another must be ascertained from all the facts and circumstances in any particular case. Oakes v. Oakes, supra.

Here, the decedent was a long time resident of Ft. Smith. After her fall there was no one to care for her in her home so she was moved to nursing homes, first to Oklahoma, then to Texas. While in the Ft. Worth nursing home, she fell again, prolonging her convalescence in Ft. Worth.

After Mrs. Morrison was moved to Oklahoma, and thereafter in the Texas nursing home, her home in Ft. Smith was kept in a state of readiness for her return. None of the furniture was removed, utilities were kept on, her car was parked in the carport and the yard was regularly maintained, all with her knowledge and approval. She maintained her membership in the First United Methodist Church of Ft. Smith and on numerous occasions expressed to her grandchildren and to neighbors a steadfast hope of returning to her home in Ft. Smith — to be with friends, and to engage in normal activities. Although there was evidence of a contrary intent, we cannot say the finding of the probate judge was clearly erroneous. ARCP 52(a).

Our holding in Oakes v. Oakes, supra, is instructive. Mrs. Oakes, an Arkansas domiciliary, developed tuberculosis and entered a sanitarium in New Mexico in 1947. She took only her clothing, leaving her furniture and household goods in her home in Arkansas. Her two children went to live with grandparents in Texas. She returned to Arkansas three years later to testify in the divorce case she had filed against her husband. She told the court she planned to return to the sanitarium for an indefinite duration. We found no evidence that Mrs. Oakes had acquired a new domicile and added: “A change of residence for the purpose of benefiting one’s health does not usually effect a change of domicile. Such a change is looked upon as temporary merely, even though the actual time spent in the new residence may be long.”

Affirmed.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Melvin TUCKER, as Director of the Arkansas State Plant Board and Public Grain Warehouse Commissioner v. Leslie E. DURHAM, d/b/a Durham Grain Company, Farm Bureau Mutual of Arkansas, Inc.
    84-378
    686 S.W.2d 402
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985

      Steve Clark, Att’y Gen., by: Robert R. Ross, Dep. Att’y Gen., for appellant.

      Rice L. VanAusdall, for appellees.
   David Newbern, Justice.

The appellant, Tucker, in his capacity as public grain warehouse commissioner, became the receiver, pursuant to Ark. Stat. Ann. § 17-1344 (Supp. 1983), for the appellee, Durham, who was a public grain warehouseman. Appellee Farm Bureau, which had issued its bond covering Durham, was made a party to the receivership proceeding. The only grain in Durham’s warehouse when the receivership was created was a small amount belonging to Durham, so the purpose of the receivership proceeding became to divide the bond proceeds among persons who had claims to grain which should have been in the warehouse.

Tucker, in accordance with Ark. Stat. Ann. § 77-1345 (Supp. 1983), filed a distribution plan with the court. Kenneth Branum, Parker Farms, Inc., and the R.G. Lamb Trust intervened and objected to the proposed plan because they held receipts for grain they had delivered to Durham, but they were not included in the plan for bond money distribution. Each of these depositors had received an advance payment on grain delivered to Durham, and Tucker contended they had thus sold the grain to Durham. The trial court held these depositors were entitled to participate in the bond money. Thus the first issue in this appeal is whether a depositor who takes an advance payment for grain is considered to have sold the grain to the warehouseman and thus removed himself from protection of the warehouseman’s bond. It is not suggested that one who has sold grain to the warehouseman, as opposed to one who has stored it with the warehouseman, is entitled to the protection of the warehouseman’s bond for money which might remain owing on the purchase price.

Tucker’s plan also excluded from participation in the bond money another intervenor named Maddox. Unlike the other intervenors, Maddox had signed a deferred pricing contract by which he explicitly transferred title to Durham of the grain he deposited with Durham. The trial court found that the agreement Maddox had signed had been obtained by fraud. Thus the agreement was declared void, and Maddox was allowed a share of the bond money. The second issue in this appeal has to do with whether the trial court’s action was error because, the appellant contends, fraud upon Maddox was not sufficiently pleaded or proven.

Because we must interpret various statutory provisions our jurisdiction rests upon Arkansas Supreme Court and Court of Appeals Rule 29. 1. c.

1. Sale or No Sale

The Arkansas Public Grain Warehouse Law, Ark. Stat. Ann. §§ 77-1301 through 77-1338 (Repl. 1981 and Supp. 1983), governs transactions between grain producers and warehousemen licensed as public warehousemen by Tucker. The Uniform Commercial Code, Ark. Stat. Ann. §§ 85-1-101 through 85-9-507 (Add. 1961 and Supp. 1983), governs to the extent it is not inconsistent with the Warehouse Law. Ark. Stat. Ann. § 77-1303(b) (Repl. 1981). In his argument Tucker notes that the Warehouse Law’s purpose is to protect those who store grain, and that stored grain is defined in § 77-1302(d) as:

Any grain received in any public grain warehouse located in this state, if same is not purchased and beneficially owned by the public grain warehouseman.

He argues further that because the Warehouse Law does not define “purchase” and “beneficial ownership” we are relegated to the U.C.C. and Black’s Law Dictionary. Nothing cited in either of those sources is specific or very useful in solving the problem.

We need not look outside the Warehouse Law. It, as noted, protects storers of grain, and it has an explicit provision on relinquishment of that protection. Section 77-1340 is as follows:

Ownership of grain shall not change by reason of an owner delivering grain to a public grain warehouseman, and no public grain warehouseman shall sell or encumber any grain within his possession unless the owner of the grain has by written document transferred title of the grain to the warehouseman. Notwithstanding any provision of the Uniform Commercial Code (Act 185 of 1961 (§ 85-1-101 et seq.), as amended) to the contrary, or any other law to the contrary, all sales and encumbrances of grain by public grain warehousemen are void and convey no title unless such sales and encumbrances are supported by a written document executed by the owner specifically conveying title to the grain to the public grain warehouseman.

Tucker argues we should not be guided by this language because its only purpose is to limit the warehouseman in selling stored grain to third parties and voiding such sales when title has not been conferred, in writing, by the producer upon the warehouseman. The Warehouse Law, however, makes it clear that unless transfer of title from the producer to the warehouseman has occurred, the grain is to be regarded as stored rather than sold, so the giving and taking of an advance payment does not remove the storer from the bond’s protection. This position happens to be consistent with Article 2 of the U.C.C. in which “sale” is defined to include passing title from the seller to the buyer for a price. Ark. Stat. Ann. § 85-2-106(1) (Add. 1961).

2. Fraud

In contrast with the other depositors discussed above, Maddox had entered a written deferred pricing contract with Durham. This contract was meant to remove Maddox from protection as a storer of grain. It specifically provided that the title to the grain was transferred to Durham.

Based on testimony and the contract instrument, the trial court found the contract to have been “back dated” and “fraudulently secured.” Testimony showed Maddox’s beans were delivered to Durham and those beans had been disposed of by Durham as of January 25, 1983. Yet Durham induced Maddox on February 3, 1983, to sign the deferred pricing contract. Maddox testified he did not notice the date on the instrument when he signed it. When it was introduced in evidence, the instrument was dated “10-19-82.”

Tucker contends fraud was neither pleaded with particularity sufficient to satisfy Ark. R. Civ. P. 9(b) nor proven by clear and convincing evidence. We are not nearly as concerned about the pleading point as we would be had Tucker shown any prejudice resulting from the alleged lapse. Paragraph 3. of the “objection to plan” filed by Maddox was as follows:

On or about February 3, 1983, Petitioner needed additional money, and went to Durham and drew the sum of $7,000.00. At that time, Petitioner signed a deferred price contract, which did recite he transferred title to the Defendant. However, at that time, it is believed Defendant had already sold, transferred and disposed of his beans, without first obtaining a written document transferring title. That the attempted transfer was void, and because it is void, Petitioner should be permitted to share in the bond proceeds.

The allegation is clear that Durham had disposed of Maddox’s beans before Maddox had given Durham title to them. The conclusion of fraud, which Maddox was not required to plead, Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981), is evident.

The requirement of particularity of pleading fraud did not come into Arkansas law altogether with the advent of Rule 9. It had previously been required, especially when pleaded as an affirmative defense. Evidence of fraud was taken at the trial, and nothing abstracted from the record shows any objection to introduction of that evidence was raised. When evidence of fraud is admitted and the issue is tried without objection, we regard the pleading as amended to conform to the proof. Van Houten v. Better Health Insurance Association of America, 238 Ark. 815, 384 S.W.2d 465 (1964).

Nor are we in doubt about the proof. Exhibits consisting of the contract instrument dated "10-19-82” anda check to Maddox from Durham dated "2-3-83,” which Maddox testified he received on the day the contract was executed, are sufficient to justify the trial court’s finding that the contract was "fraudulently secured.” Maddox testified, again without contradiction, he received an advance payment of $7,000 from Durham when he signed the contract, and that he was induced to sign by this payment. As the beans had already been disposed of by Durham, the evidence showed clearly a misrepresentation by Durham that Durham still had the beans and Maddox was to receive more money later. But for the contract, Maddox would have been as entitled as other storers to participate in the bond proceeds. Obviously Maddox would not have signed the contract had he known Durham had already illegally disposed of his beans.

The trial court’s finding that the contract was fraudulently induced was justified, and it was not error to set the contract aside and allow Maddox to participate in the bond proceeds.

Affirmed.


author: Per Curiam.

text:
    Garry DOTY v. STATE of Arkansas
    CR 84-159
    686 S.W.2d 413
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985

      McDaniel, Gott & Wells, P.A., by: Bobby McDaniel, for appellant.

      Steve Clark, Att’y Gen., by: Michael E. Wheeler, Asst. Att’y Gen., for appellee.
   Per Curiam.

This appeal of a conviction under the new Omnibus DWI law is affirmed. All the arguments raised have been rejected in prior or contemporaneous cases.

The act is not void for vagueness. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984) reh. den. 283 Ark. 434, 681 S.W.2d 395 (1984); Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984); Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984). Doty’s argument that the act violates his Sixth Amendment right to confrontation was rejected in Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985), and Wells v. State, 285 Ark. 9, 684 S.W.2d 248 (1985). The act does not unconstitutionally shift the burden of proof, Lovell v. State, supra, or violate the separation of powers doctrine. Lovell v. State, supra; Lovell v. State, 283 Ark. 434, 681 S.W.2d 395 (supplemental opinion on rehearing) (1983); Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985); Southern v. State, supra; Tausch v. State, 285 Ark. 226, 685 S.W.2d 802 (1985).

Doty’s argument that the intoximeter test violates his right against self-incrimination has been considered and rejected. Steele v. State, supra. He argues that convictions under the former driving under the influence law should not be used to enhance a sentence under the new act. That argument was rejected in Lovell v. State, supra.

Affirmed.


author: Jack Holt, Jr., Chief Justice.

text:
    Charles “Tubby” WILSON v. STATE of Arkansas
    CR 84-219
    686 S.W.2d 414
    Supreme Court of Arkansas
    Opinion delivered March 25, 1985

      Felver A. Rowell, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal is from the denial of separate motions for new trial in two different cases involving Charles “Tubby” Wilson, the appellant. The first case was a prosecution for theft by receiving and the second was for felon in possession of a firearm. This appeal is before us under Sup. Ct. R. 29( 1 )(e) as the motions seek relief under Ark. R. Crim. P. 37.

The facts are as follows: Wilson, a previously convicted felon, was charged with theft by receiving. At the trial one of the State’s witnesses, Jimmy Hern, testified that he burglarized several houses, stealing mostly guns, stereos and televisions. He stated that he took some guns and a stereo to the appellant who gave him marijuana in exchange. Wilson’s wife testified that Hern brought guns only to their house, but that the appellant loaned Hern money and kept the guns merely as security on the debt. The appellant was convicted, sentenced to 15 years imprisonment and fined $15,000. That conviction has been affirmed. Wilson v State, 10 Ark. App. 176, 662 S.W.2d 204 (1983).

Because numerous shotguns, rifles and handguns were found in his home when the officers were searching for stolen property, a separate charge was filed for a felon being in possession of firearms. During the course of a trial on this separate charge, Hern changed his testimony and stated that he left the guns with the appellant in exchange for money which the appellant and his wife loaned to him. Hern’s testimony at the second trial was similar to Mrs. Wilson’s testimony at the first trial. The appellant was convicted of the second charge.

The appellant filed two motions for relief which are consolidated for appeal. The first motion seeks a new trial on the theft by receiving charge on the basis of the change in Hern’s testimony. The second motion for new trial claims error in permitting the prosecution to inquire into the theft by receiving conviction during the course of the felon in possession trial in that “said inquiries were erroneous and their prejudicial effect far outweighed their probative value.”

Both motions filed by the appellant seek relief under Ark. R. Crim. P. 37.1(d) which provides that a prisoner may file a motion seeking a new trial if the sentence is otherwise subj ect to collateral attack. Rule 37.1, however, only applies to a prisoner “whose case was not appealed to the Supreme Court.”

Rule 37.2(a), as amended by this court, provides:

(a) If the conviction in the original case was appealed to the Supreme Court or Court of Appeals, then no proceedings under this rule shall be entertained by the circuit court without prior permission of the Supreme Court.

In Re: Amendment of Rule 37.2(a) of the Rules of Criminal Procedure, 283 Ark. 559 (1984).

The appellant’s conviction for theft by receiving was affirmed by the Court of Appeals. We have held that “once a case is appealed, the trial court’s jurisdiction is lost and cannot be regained without our permission. . .Rule37.2(a) clearly limits the jurisdiction of the trial court in post-conviction proceedings . . . The petition to proceed is absolutely required, (citations omitted).” Coston v. State, 283 Ark. 155, 671 S.W.2d 738 (1984). Since the petitioner failed to seek prior permission from this court to proceed under Rule 37, the trial court was without jurisdiction to hear the appellant’s motion for new trial on the theft by receiving charge. The appeal from the first conviction is accordingly dismissed.

The appellant’s second Rule 37 petition was properly submitted to the trial court since the conviction for felon in possession of a firearm has not been appealed to the Supreme Court or to the Court of Appeals. The appellant argues that it was error for the trial court to allow the prosecution in this case to inquire into the conviction received by the appellant for theft by receiving. This argument is based on the assumption that the trial court would grant appellant’s motion for new trial in the theft by receiving case. Since th.e trial court did not grant the motion for new trial and we are dismissing the appeal of the motion for a new trial, appellant’s argument is moot.

Dismissed in part; affirmed in part.


author: George Rose Smith, Justice.

text:
    SIMMONS FIRST NATIONAL BANK, Administrator, et al. v. James THOMPSON et al.
    84-254
    686 S.W.2d 415
    Supreme Court of Arkansas
    Opinion delivered March 25, 1985

      McMath Law Firm, P.A., by: Winslow Drummond, for appellants.

      Barber, McCaskill, Amsler, Jones & Hale, by: Robert L. Henry, III, for appellee James Thompson.

      Shackleford, Shackleford & Phillips, by: Dennis L. Shackleford, for appellee Gerald Golden.

      Anderson & Kilpatrick, by: Overton S. Anderson, for appellee Don Crysell.

      Allen, Cabe & Lester, by: V. Markham Lester, for appellee Eric Smith.
   George Rose Smith, Justice.

This multi-party action for personal injuries and wrongful deaths arose out of a 1981 accident at the International Paper Company’s paper mill in Pine Bluff. Separate crews at the mill permitted two different chemicals to flow into the mill’s sewer system. The chemicals intermingled at some point in the system and reacted to create a poison gas that entered the atmosphere through an open grate sewer covering. At least two employees died from the effects of the gas; others were injured. All the employees were covered by the workers’ compensation law.

This tort action was brought by injured employees and by the personal representatives of two that died. The four defendants are supervisory employees of the company: the mill manager, the pulp mill superintendent, the superintendent of engineering, and the supervisor of safety. None of the defendants was present at the place of the accident or had any active part in the work that caused the chemicals to enter the sewer. The complaint alleged negligence on the part of each defendant in failing to discharge his responsibility to make the premises safe.

Upon proof of the foregoing essential facts the trial court sustained the defendants’ motion for summary judgment, on the ground that as supervisory employees the defendants are protected from personal liability by the same immunity that the statute confers upon the employer itself, the remedies provided by the statute being exclusive. Ark. Stat. Ann. § 81-1304 (Supp. 1983). For reversal the appellants argue that on the facts of this case the supervisory employees should not be immune from liability for their own negligence.

Our cases have not passed upon this problem. Our two most pertinent decisions lie at opposite ends of the spectrum. In Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969), relied on by the defendants, the employer was an incorporated laundry owned by Oliver and his wife and son. Oliver himself was the president and general manager. The plaintiff was an employee who had been injured while operating a defective ironing machine. In a tort action against Oliver we held that he was not liable because “he was also the appellant’s employer.”

On the other hand, immunity was denied in King v. Cardin, 229 Ark. 929, 519 S. W.2d 214 (1959), relied on by the plaintiffs. There two fellow employees, a truck driver and a laborer, were working with others on a highway paving project. King, the truck driver, backed up his truck negligently and struck Cardin’s decedent, who was killed. We permitted an action against the truck driver for wrongful death, under the section of the statute providing that an employee’s compensation claim against the employer does not affect his right to sue a “third party.” Section 81-1340 (Repl. 1976). Our reasoning, supported by cases from other jurisdictions: “Under a statute like ours a negligent co-employee is regarded as a third person.”

This case falls between the two extremes. Professor Larson’s own view, expressed without regard to the cases, would unhesitatingly deny liability in this case. He insists that workers’ compensation coverage should be viewed neither as a branch of tort law nor as a system of social insurance. He says, in part: “Almost every major error that can be observed in the development of compensation law, whether judicial or legislative, can be traced either to the importation of tort ideas, or, less frequently, to the assumption that the right to compensation resembles the right to the proceeds of a personal insurance policy.” Larson, Workmen’s Compensation Law, § 1.20 (1984). After pointing out that the “tort-connection fallacy” can at times be harmful to the employee and at times to the employer (ibid.), Larson sums up the problem quite simplistically:

The right to compensation benefits depends on one simple test: Was there a work-connected injury? Negligence, and, for the most part, fault, are not in issue and cannot affect the result. Let the employer’s conduct be flawless in its perfection, and let the employee’s be abysmal in its clumsiness, rashness and ineptitude; if the accident arises out of and in the course of the employment, the employee receives his award. Reverse the positions, with a careless and stupid employer and a wholly innocent employee; the same award issues.
Thus, the test is not the relation of an individual’s personal quality (fault) to an event, but the relationship of an event to an employment. The essence of applying the test is not a matter of assessing blame, but of marking out boundaries.

As our own Neal and King cases, supra, illustrate, the courts have not uniformly adopted Larson’s reasoning nor uniformly reached his recommended results. Nevertheless, with respect to the liability of supervisory employees the great majority of the decisions are in harmony with Larson’s conclusions. Their reasoning has usually been that since an employer is immune under the statutes from a negligent failure to provide employees with a safe place to work, the same immunity protects supervisory employees when their general duties involve the overseeing and discharging of that same responsibility. Typical recent decisions include Vaughn v. Jernigan, 144 Ga. App. 745, 242 S.E.2d 482 (1978); Kerrigan v. Errett, 256 N.W.2d 394 (Iowa 1977); Athas v. Hill, 458 A. 2d 859(Md. Spec. App. 1983); Dawley v. Thisius, 231 N.W.2d 555 (Minn. 1975); Greco v. Farago, 477 A. 2d 98 (R.I. 1984); Blumhardtr v. Hartung, 283 N.W.2d 229 (S.D. 1979); and Laffin v. Chemical Supply Co., 77 Wis. 2d 353, 253 N.W.2d 51 (1977).

A Missouri court gave a persuasive practical justification for the majority view in State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo. App. 1982):

Under present day industrial operations, to impose upon executive officers or supervisory personnel personal liability for an accident arising from a condition at a place of employment which a jury may find to be unsafe would almost mandate that the employer provide indemnity to such employees. That would effectively destroy the immunity provisions of the workmen’s compensation law.

We are solidly in agreement with the majority view. As we all know, the purpose of workers’ compensation statutes was to change the common law by shifting the burden of all work-related injuries from individual employers and employees to the consuming public. In that effort the matter of fault, as Larson points out, is ordinarily immaterial. Employers were compelled to give up the common-law defenses of contributory negligence, fellow servant, and assumption of risk. Employees were compelled to give up the chance of recovering unlimited damages in fault-related cases in return for a certain recovery in all work-related cases. The plaintiffs here are attempting to return to the common-law system based on fault, when it is to their advantage to do so, but at the same time to retain the assured benefits of workers’ compehsation regardless of fault. The invalidity of their position is too plain to require further discussion.

Affirmed.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    William M. JANES and Deanna JESSON v. STATE of Arkansas
    CR 84-192
    686 S.W.2d 783
    Supreme Court of Arkansas
    Opinion delivered March 25, 1985

      Warner ér Smith, by: Joel D. Johnson, for appellants.

      Steve Clark, Att’y Gen., by:. Joyce Rayburn Greene, Asst. Att’y Gen., for apellee.
   George Rose Smith, Justice.

At separate trials in municipal court William M. Janes was convicted of DWI, second offense, and Deanna Jesson was convicted of DWI, first offense. On appeal to the circuit court the cases were consolidated and tried together. No witnesses testified, the case being submitted to the trial judge, without a jury, on documentary evidence introduced by the State and on a memorandum brief submitted on behalf of both defendants by their attorney. The court found each defendant guilty and imposed sentences within the limits set by Act 549 of 1983, the Omnibus DWI Act. This case, like many other DWI cases on the docket, comes to us under Rule 29(1 )(c). Three arguments are presented.

First, it is argued that the act is unconstitutional because it permits the punishment for a second offense to be enhanced without regard to whether the first conviction was counseled or uncounseled. A sufficient answer to this argument is that if a defendant did not have counsel and did not waive counsel when he was first convicted, that conviction cannot be used for enhancement, and if it is so used the error can be corrected on appeal. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318, 681 S.W.2d 395 (1984). There was no need for the lawmakers to recite in the act a rule that would be applicable anyway.

Though not argued in the brief, it has been suggested at our conference that the State’s proof is insufficient because its documentary evidence did not include a copy of Janes’s previous conviction, nor is there any other evidence about that conviction. That objection was not made below. At the trial defense counsel elected not to argue the case except by the submission of a written brief. The brief contains on this point only the argument we have mentioned, that the statute is unconstitutional. Janes has not denied that he has a prior DWI conviction. We have consistently held that where there is a particular defect in the State’s proof that might readily have been corrected had an objection been made, the absence of any obj ection prevents the point’s being raised for the first time on appeal. For instance, where the State’s proof by accomplices is not corroborated, the absence of an objection on that ground at the trial waives the omission. Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977). In another analogous situation we said in Eskew v. State, 273 Ark. 490, 621 S.W.2d 220 (1981):

The second argument by appellants is that the evidence was insufficient to support the appellants’ conviction for class A. felony kidnapping. This may well be true but the fact remains that the appellants never requested an instruction on class C kidnapping, and the matter is raised for the first time on appeal. We need not cite authority for the proposition that we do not consider matters raised for the first time on appeal.

The appellants’ second contention is that the DWI statute violates the constitutional separation of governmental powers. That contention has been considered in prior cases involving this statute and need not be reconsidered. Tausch v. State, 285 Ark. 226, 685 S.W.2d 802 (1985); Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985).

The third argument is that the statute’s requirement of a pre-sentence report compels the defendant to incriminate himself. Ark. Stat. Ann. § 75-2506 (Supp. 1983). The act does not require a defendant to take any action whatever in response to the State’s proof or to the pre-sentence report; so obviously there is no compulsory self-incrimination.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I think the majority is in error in stating that appellant Janes did not object to the consideration of a prior conviction for the purpose of enhancing his sentence. Appellants stated in a brief submitted to the trial court: “Defendants further contend that sections 1(b) and 4 of said Act render it constitutionally infirm in that such sections purport to permit imposition of enhanced sentences and imprisonment for prior convictions without regard to whether such convictions were counseled or uncounseled.” They cited and relied upon Baldasar v. Illinois, 446 U.S. 222 (1980), a case we frequently cite as authority for exactly the same proposition as appellants were arguing. This argument was presented to the court in written form on the same day the judgment was entered, August 1, 1984. The argument was taken under consideration by the trial court prior to sentencing. In order to utter the exact words to comply with the majority opinion, an attorney would have to have clairvoyant powers to foresee what the judge would eventually enter into the record on appeal. Therefore, the objection was in rather broad language. Surely the trial court and members of this court fully understood the appellants were objecting to the use of prior convictions, whether counseled or uncounseled. The prior convictions in the case before us stand silent as to whether they were counseled or uncounseled. In argument before the trial court, counsel for appellants cited Baldasar for the proposition that the United States Supreme Court has ruled that uncounseled misdemeanor convictions may not be used to enhance penalty statutes to felony status. We have spoken to the situation of a silent record before. In McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974) we stated: “It is well settled that ‘presuming waiver of counsel from a silent record is impermissible’.” We have also held that the introduction of a previous conviction document, where that record concerning the level of the previous conviction is “silent,” amounts to prejudicial error. Roach v. State, 255 Ark. 773, 503 S.W.2d 467 (1973). When the record of prior convictions does not show that the defendant was represented by counsel, or that he voluntarily waived counsel, the conviction cannot be used to enhance the penalty. Wilburn v. State, 253 Ark. 608, 487 S.W.2d 600 (1972). We have even held that when the record of a prior conviction was certified by the wrong person it could not be used for enhancement purposes. Richards v. State, 254 Ark. 760, 498 S.W.2d 1 (1973).

When we first started considering appeals of convictions pursuant to the Omnibus DWI Act (Act 549 of 1983), we were confronted with this same issue. In Lovell v. State, 283 Ark. 425, 678 S.W.2d 318, 681 S.W.2d 395 (1984), we stated: “A prior conviction cannot be used collaterally to impose enhanced punishment unless the misdemeanant was represented by counsel or validly waived counsel. Baldasar v. Illinois, 446 U.S. 222 (1980); State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984). Waiver of counsel may not be presumed from a silent record.”

No citation is needed to support the rule that the state has the duty to prove every essential element of a charge. Certainly it is essential to prove prior convictions to obtain a valid conviction under enhancement statutes. It is fundamental law that a record silent on whether prior convictions were counseled or uncounseled is inadmissible to enhance a penalty. The duty being on the state to prove a case, we surely should have held that the “silent” record will not support the conviction here.

We should either reverse and remand or adjust the punishment here as we were used to doing.


author: Darrell Hickman, Justice.

text:
    FORT SMITH SYMPHONY ORCHESTRA, INC. v. FORT SMITH SYMPHONY ASSOCIATION, INC.
    84-294
    686 S.W.2d 418
    Supreme Court of Arkansas
    Opinion delivered March 25, 1985

      Martin, Vater ¿r Karr, by: Charles Karr, for appellant.

      Warner & Smith, by: L. Cody Hayes and G. Alan Wooten, for appellee.
   Darrell Hickman, Justice.

Dissension arose in the Fort Smith Symphony Association when their conductor of 14 years, Walter Minniear, resigned in 1984. Some performing members wanted more voice in the decisions made by the board of directors which was made up primarily of nonperforming members. About half of the performers resigned or disassociated themselves from the orchestra in May of 1984 and formed a new organization; it was incorporated as a non-profit corporation named Fort Smith Symphony Orchestra, Inc. The old organization, which had existed since the late 1920’s, the Fort Smith Symphony Association, Inc., filed suit in chancery court, seeking an injunction to prevent the new organization from using the name “Fort Smith Symphony Orchestra.” Two days after the appellant was served, the chancellor held a hearing and issued a temporary injunction. The older organization was required to post a $10,000 bond to cover any damages that might occur in the event the injunction was not later made permanent. The new organization brings this appeal from the temporary order, which is permissible under Ark. R. App. P. 2.

Three errors are alleged: the chancery court should have dismissed the complaint because no irreparable harm was alleged by the appellees and because the circuit court, rather than the chancery court, had jurisdiction; notice was insufficient; and the chancellor was wrong in issuing a temporary injunction. The order is affirmed.

While there are no cases directly in point in Arkansas, other jurisdictions in similar cases have made decisions that support the finding of the trial court in this case. See 37 ALR3d 277 (1971).

In Missouri Federation of the Blind v. Nat’l. Federation of the Blind, 505 S.W.2d 1 (Mo. 1974), it was held that a not-for-profit organization has the right to adopt a name by which it will be known and to reap the benefits of the good will it derives under that name, just as a profit-making organization has that right. The same principle was affirmed in Metropolitan Opera Assn. v. Metropolitan Opera Assn., 81 F. Supp. 127 (D.C. Ill. 1948), where an Illinois opera began using the name of the world renowned opera company in New York. The district court held that the use of the name by the local company was likely to mislead the public into believing that the two organizations were somehow connected and that injunctive relief was proper. The basis for the decision was that a misleading name is likely to deceive the public and that ah organization has the right to protection of the good will and reputation it has developed over time.

Although the issue has never arisen in Arkansas in a case involving a not-for-profit corporation, we have afforded protection on the same basis to ordinary corporations where we have found the names to be confusing and likely to mislead. Clyde Campbell University Shop v. Campbell-Bell, Inc., 243 Ark. 937, 422 S.W.2d 875 (1968); Liberty Cash Groceries, Inc. v. Adkins, 190 Ark. 911, 82 S.W.2d 28 (1935). We do not hesitate to extend the principle to non-profit corporations.

In this case we agree with the chancellor that the name “Fort Smith Symphony Orchestra” has been used in such close association with the appellee that the use of the name by the appellant could lead to confusion on the part of the public and, as a result of that confusion, injury to the appellee. The evidence of the close association is overwhelming. For example the appellee introduced programs printed with that name, correspondence by the appellee using that name, and a proclamation by the mayor in 1982 declaring the week to be “Fort Smith Symphony Orchestra Week” with reference to the appellee. There was some evidence that people in the community were confused by the situation. The appellant planned concerts in the same auditorium that the appellee had always used. The appellee provided evidence that it was supported in great part by ticket sales, gifts and donations. This evidence is more than adequate to sustain the chancellor’s action in issuing the injunction.

The complaint did not use the words “irreparable harm” and for this reason the appellant argues the case should have been dismissed. The complaint did state facts which in our judgment would allow the chancellor to hear evidence regarding injunctive relief. The complaint also stated that there was no adequate remedy at law. Pleadings shall be liberally construed so that effect is given to the substance of the pleading rather than the form. Home Ins. Co., v. Williams, 252 Ark. 1012, 482 S.W.2d 626 (1972). Furthermore, the evidence presented at the hearing amounted to at least a prima facie showing that irreparable harm could result in the absence of injunctive relief. See Paccar Financial Corp. v. Hummell, 270 Ark. 876, 606 S.W.2d 384 (Ark. App. 1980).

We do not agree with the appellant’s argument that the circuit court had jurisdiction of this case since that is where non-profit organizations file their articles of incorporation. Ark. Stat. Ann. § 64-1905 (Repl. 1980). The appellee simply sought an injunction which is an equitable remedy within the jurisdiction of the chancery court. McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973).

The two day notice of the hearing given the appellant, while somewhat short, was not so inadequate as to void the proceedings. A temporary injunction may issue without any hearing where there are affidavits or a verified complaint alleging irreparable harm without relief. ARCP Rule 65(a)( 1). The injunction in this case was not issued until the trial court had heard from four witnesses and considered a number of documents. Necessarily, the trial court must have some discretion in setting a hearing for a temporary injunction. No abuse of that discretion will be found unless the notice is patently unfair and prejudicial. The appellant has been unable to demonstrate such an abuse.

Affirmed.


author: John I. Purtle, Justice.

text:
    Lewis McCAMMON and Johnnie McCAMMON, and the BOARD OF ZONING ADJUSTMENT and BOARD OF ZONING and PLANNING COMMISSION v. Larry BOYER and Martha BOYER
    84-255
    686 S.W.2d 421
    Supreme Court of Arkansas
    Opinion delivered March 25, 1985

      Gordon & Gordon, P.A., by: Allen Gordon, for appellants.

      Joe Cambiano, P.A., for appellees.
   John I. Purtle, Justice.

The circuit court on appeal reversed the decision of the Morrilton Planning and Zoning Commission. On appeal to this court the Commission argues: I) the trial court erred in receiving testimony outside the hearing before the Commission; II) the court erred in finding the Commission acted arbitrarily, capriciously or unreasonably; III) the court erred in finding that the Commission failed to consider the effect of the action taken on the neighborhood; IV) the court erroneously held the appellees had standing to appeal to the circuit court; and V) the court erred in holding part of the ordinance unconstitutional.

City of Morrilton Ordinance #10 of 1979 provided a procedure to follow in order to place a mobile home in an R-2 district, provided the neighbors within 300 feet of the proposed mobile home site are polled and not more than 20% of them object. Permission to place a mobile home in an R-2 district was granted to appellants McCammon on November 5, 1983. The proceedings of the Commisison were not reported verbatim. The minutes were constructed in a narrative conclusional form which stated Ordinance #10 had been complied with so far as necessary in order to permit the variance. At the appeal hearing the court took testimony from the appellees and other witnesses. Some of the evidence considered was merely repetition of evidence presented to the Commission and some was new. The court looked behind the Commission’s statement that the requirements of Ordinance #10 had been met. The appellees, who had not testified at all at the November 5, 1983, hearing before the Commission, were allowed to testify. The circuit court overruled the objection on standing of the appellees to appeal and held that the Commission did not poll the property owners within 300 feet of the site proposed for the mobile home. Additionally, the court held subsection three of Ordinance #10 was arbitrary for lack of guidelines for the Commission to make a proper determination.

Subsection 3 of Ordinance #10 reads as follows:

3. A mobile home may be placed in an R-2 district provided all conditions for placement in an R-3 district are met along with the following:
a. An application shall be filed with the City Building Inspector. Such application shall show the location, lot size, proof of lot ownership by applicant and any other information pertinent to the request.
b. The City Building Inspector shall poll property owners within a three hundred foot (300') radius of the desired location of the mobile home. Should not less than twenty percent (20%) of the neighboring property owners object to the placement of the mobile home, the application shall be disapproved.
c. After the above requirements are met, the applicant shall present all pertinent information to the Planning and Zoning Commission. The Commission shall review the application, the poll taken by the City Building Inspector, the effect of such proposed use on the character of the neighborhood, the location of public utilities, all information presented at the public hearing and any other matters pertaining to the general welfare of the citizens of Morrilton and transmit its findings to the applicant within 45 days.
d. Any mobile home in an R-l or R-2 district may not be replaced with another mobile home unless a new application for permit is approved according to the above conditions.

We must first determine the standard of review in an appeal from a city commission such as the Board of Adjustment. Apparently the entire Planning Commission sat as the Board of Adjustment in the present case. The City of Morrilton followed the law in establishing its Planning Commission.

The General Assembly established the procedure for judicial review of actions taken pursuant to planning and zoning regulations. Ark. Stat. Ann. § 19-2830.1 (Repl. 1980). However, this court held the statutory procedure to be unconstitutional in the facts of Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W.2d 74 (1971). Wenderoth basically held that the judicial review statute took away the discretionary power to perform legislative functions which the legislature gave to the cities by authorizing them to legislate in matters relating to planning and zoning regulations. Courts review such legislative enactments by municipalities only as to whether such actions are arbitrary or capricious. Wenderoth, supra. We again considered this subject in City of Paragould v. Leath, 266 Ark. 390, 583 S.W.2d 76 (1979). We cited Wenderoth and distinguished it, saying: “[T]he act here which provides for appeals from the Board of Adjustment is not subject to those constitutional limitations applicable to City Council actions in zoning because the Board of Adjustment acts administratively, not legislatively. Appeals to the circuit court from the Board of Adjustment are permitted.”

The type of review from decisions of administrative agencies was considered by this court in Goodall v. Williams, 271 Ark. 354, 609 S.W.2d 25 (1980) and in Ark. Commission on Pollution Control & Ecology v. Land Developers, Inc., 284 Ark. 179, 680 S.W.2d 909 (1984) where we reviewed many of our earlier decisions. Both Goodall and Land Developers dealt with agencies exercising executive or legislative functions and both held that de novo review by the courts was improper. Although both cases cited Wenderoth, that case dealt with the legislative function of a city in exercising its delegated power to enact ordinances. Neither Goodall nor Land Developers is precedent for Planning Commission cases. Wenderoth declared the appeal provisions of Ark. Stat. Ann. § 19-2830.1 unavailable when applied to appeals relating to city ordinances because in such instances the action taken was legislative. However, the opinion expressly exempted the question of the constitutionality of the statute as it relates to city councils or other agencies acting in administrative or quasi-judicial capacities.

A common thread running through most of the above cited cases is that a trial de novo on appeal is improper and indeed unconstitutional if the objective of the appeal is to question legislative or executive wisdom. However, if the appeal involves a constitutionally or statutorily protected right or one preserved by private contract, then a trial de novo is proper. With this thought in mind we examine the facts of this case to determine to which category it belongs. The Planning Commission, sitting as a Board of Adjustment, has no power to legislate. The appellants and appellees dealt with the Commission on matters relating to the use of their properties. Relying upon the action taken by the Commission, appellants purchased substantial property. The Boyers already owned a home in the area. Individual property rights are secured by several provisions of our constitutions. Individuals are not constitutionally guaranteed the right to do with their property what they wish in all circumstances. The police power and health and welfare doctrines clearly mandate restrictions on ownership and use of property in such a manner as to prevent detriment to the rights of the public.

The record on appeal to the circuit court was completely inadequate to apprise the court of the manner and scope of the hearing before the Commission. The court was faced with the problem of returning the case to the Commission for a hearing or trying it de novo. When a record is completely inadequate or belies the truth there must of necessity be a remedy. Every person is entitled to a certain remedy for all injuries or wrongs suffered by him and he ought to obtain justice promptly and in conformity with the law. Ark. Const. Art. 2, § 13. If de novo review of actions by administrative boards and commissions were not allowed, a board or commission might act arbitrarily or unreasonably or even conceal the real facts and thereby protect such acts from proper review. Therefore, a de novo hearing on appeal is proper when the appeal is from actions taken by administrative boards, commissions and agencies exercising adjudicatory or quasi judicial functions.

An appeal from the Board of Adjustment is allowed by Ark. Stat. Ann. §§ 19-2829 and 19-2830.1. Although the latter does not authorize appeals contesting the validity of city ordinances, in Leath we held that the city had standing to appeal from a decision of a Board of Adjustment. Certainly the parties here have as much standing and should be allowed to take an appeal. In this case, the parties certainly consider themselves injured. We hold that the court had the power to grant a hearing de novo from the action by the Commission.

In holding a trial de novo it became unnecessary for the court to sua sponte hold portions of the ordinance unconstitutional. Therefore, the constitutionality of subsection 3 of Ordinance #10 should not have been addressed.

Affirmed.

ERRATA 285 ARKANSAS REPORTS at page 288 Detach at perforation, moisten the back, and paste over the sixth line up from the bottom of page 288 of McCammon v. Boyer: ^ health and welfare — Individual property rights are

      ERRATA 285 ARKANSAS REPORTS at page 288 Detach at perforation, moisten the back, and paste over the sixth line up from the bottom of page 288 of McCammon v. Boyer: ^ health and welfare — Individual property rights are


text:
    Roosevelt TIPPITT v. STATE of Arkansas
    CR 84-193
    686 S.W.2d 420
    Supreme Court of Arkansas
    Opinion delivered March 25, 1985

      Jeff Rosenzweig, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of aggravated robbery and theft. He appeals from his conviction and thirty-five year sentence on the ground that his written statement should have been suppressed. Under the circumstances of this case we hold that the trial court properly refused to suppress the statement.

While in custody as a suspect in an aggravated robbery and attempted capital murder case, the appellant gave a written statement in which he admitted he was the driver of the getaway car in the robbery under investigation. The attempt charge was the result of shots being fired at the police officer while the robbers fled the scene. Two accomplices were charged with aggravated robbery and attempted capital murder. The investigating officers agreed not to charge appellant with attempted capital murder in return for his statement, which was used against him at his trial on charges of aggravated robbery and theft.

The issue before us is whether the inculpatory custodial statement, given in exchange for a promise not to prosecute appellant! for an additional crime, should have been suppressed. There is no dispute that the statement was given in exchange for the promise not to charge appellant with attempted capital murder. The Miranda warnings were given prior to the statement being made. Custodial statements are presumed involuntary and the state must overcome the presumption by a preponderance of the evidence. Campbell v. State, 281 Ark. 48, 661 S.W.2d 363 (1983). Statements given with hope of reward are not voluntary. Hutto v. Ross, 429 U.S. 28 (1976).

We considered this same problem in Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983). Williams initiated the deal with the officers and the prosecuting attorney. Williams had an attorney but appellant here did not. In Williams we held that the promise of reward (to charge first degree murder rather than capital murder) was given in good faith and was kept. Considering the totality of the circumstances we held Williams’s statement was properly admitted. A false promise which misleads an accused renders his statement involuntary. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982).

Under the facts and circumstances of this case, when considered in their totality, we think the trial court was correct in admitting the statement. The appellant struck a bargain, which was closely related to a plea bargain, and both sides kept their promises. Most likely the deal was a wise one for the appellant. In any event we can find no prejudicial error.

Affirmed.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Roy L. HOLMES v. CITY OF LITTLE ROCK, et al.
    84-266
    686 S.W.2d 425
    Supreme Court of Arkansas
    Opinion delivered March 25, 1985
    [Rehearing denied April 29, 1985.]

      Givens & Buzbee, for appellant.

      Carolyn B. Witherspoon, Acting City Att’y, by: Victra L. Fewell, Asst. City Att’y, for appellee.

      Purtle, J., would grant rehearing.

   Robert H. Dudley, Justice.

The Board of Directors of the City of Little Rock adopted an ordinance which proposed the annexation of fifteen separate tracts of land, designated “A” through “O.” An election was held, and the vote was in favor of the annexation, both in the City and in the previously unincorporated area. Appellant, who owns land in tract H, and others challenged the annexation in circuit court. All of the challenges, excepting appellant’s, were dismissed. Appellant contends that tracts A, B, C, G, K, and O were annexed in violation of Ark. Stat. Ann. § 19-307.1 (Repl. 1980). The trial court upheld the annexation. We affirm. Jurisdiction to construe the annexation statute is in this Court. Rule 29(1 )(c).

The rules controlling appellate review of annexation cases in Arkansas are well settled. A majority of electors voting in favor of annexation make a prima facie case for annexation, and the burden rests on those objecting to produce sufficient evidence to defeat the prima face case. City of Crossett v. Anthony, 250 Ark. 660, 466 S.W.2d 481 (1971); Faucett v. City of Atkins, 248 Ark. 633, 453 S.W.2d 64 (1970); Mann v. City of Hot Springs, 234 Ark. 9, 350 S.W.2d 317 (1961). By the very nature of this type of litigation, there is a wide latitude for divergence of opinion and consequently, a high degree of reliance must be placed upon the findings of the trial judge. Faucett v. City of A tkins, 248 Ark. 633, 634, 453 S.W.2d 64, 66 (1970). This court’s task is not to decide where the preponderance of the evidence lies, but solely and simply to ascertain whether the trial court’s findings of fact are clearly erroneous. ARCP Rule 52.

Ark. Stat. Ann. § 19-307.1 in its pertinent part provides:

Any municipality may . . . adopt an ordinance to annex lands contiguous to said municipality, provided the lands are either (1) platted and held for sale or use as municipal lots; (2) whether platted or not, if the lands are held to be sold as suburban property; (3) when the lands furnish the abode for a densely settled community, or represent the actual growth of the municipality beyond its legal boundary; (4) when the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or (5) when they are valuable by reason of their adaptability for prospective municipal uses.
Provided, however, that contiguous lands shall not be annexed when they either: (1) have a fair market value at the time of the adoption of the ordinance of lands used only for agriculture [agricultural] or horticulture [horticultural] purposes and the highest and best use of said lands is for agricultural or horticulture [horticultural] purposes;....

The statute is disjunctive, and the annexation of the land is proper when the proof sufficiently complies with any one of the conditions. Faucett v. City of Atkins, 248 Ark. 633, 636, 453 S.W.2d 64, 67 (1970); Louallen v. Miller, 229 Ark. 679, 317 S.W.2d 710 (1958).

Since the sufficiency of the evidence is questioned, it is necessary that we review the evidence.

The area in the fifteen tracts comprises 12.6 square miles and has approximately 11,000 residents. For the past six years the City has used a voluntary annexation procedure which has left a very irregular boundary. One of the primary goals of this annexation is to square as many boundaries as possible in order to alleviate the irregular boundary impediment to furnishing urban services. There was testimony to prove that the City could afford to extend city services to each of the areas annexed.

Nine years ago the City employed a consulting firm to recommend ways to prevent rapid sub-standard growth in adjacent unincorporated areas. Subsequently, the City adopted a series of policies to provide for the deliberate and orderly expansion of the city boundaries. The goal of the policies is to prevent poor quality development which would have to be remedied when the tracts were later annexed.

With regard to tract A, the trial court found:

Tract “A” is an area of some seven hundred acres more or less. Located in this tract is a viable pecan orchard, some farm lands, and a substantial amount of lands being used for residential and commercial uses, along with the Little Rock Airport’s proposed expansion. This airport expansion would encompass some 20 acres of the northwest portion of the larger pecan orchard. Here again the lands in this tract are situated along the east belt freeway. Across that structure lies the rapidly developing industrial-port area. These lands have available development streets and all typical municipal utilities.

Various witnesses testified that: (1) there are a variety of land uses in the tract with 145 single-family units in existence for approximately 450 residents; (2) access to the tract exists by city streets; (3) city utilities are available; (4) the Municipal Airport Commission will purchase approximately one-fourth of the pecan orchard as a part of a fifty million dollar expansion of the airport; (5) the tract is surrounded on three sides by present city boundaries and on the fourth side by the Arkansas River; (6) the tract is substantially urbanized; and (7) the biggest part of the tract consists of platted residential development. The findings of the trial judge were not clearly erroneous, and the above constitutes evidence that the tract can be annexed as lands representing the actual growth of the City beyond its legal boundary. While a pecan orchard exists on a part of the tract, it is permissible to annex a tract of land if that tract is more valuable for city purposes than for agriculture, even if the one tract is more valuable for farming purposes than for city purposes. Fowler v. Ratterree, 110 Ark. 8, 160 S.W. 893 (1913).

The trial court’s finding of fact described B as follows:

Tract “B” of the annexed area has located within its boundary a mining pit which is in the northern portion of that particular tract. This is a quarry site. It is situated abutting the freeway and is adjacent to an area of residences to the east, thence into a commercial developed area and is also bounded by a rapidly developing port/industrial-commercial area to the north of the tract.

There was testimony that: (1) the tract has a population of 369, with 119 single-family units, 21 commercial uses, and one industrial use on 107.9 acres; (2) it lies between two intersections of a major interstate highway and constitutes a peninsula of unincorporated territory; (3) public access to the tract exists by city streets, and it has schools, a fire station, and utilities; (4) the largest part of the tract constitutes platted residential development; (5) a small part of the tract contains a quarry, with the balance of the quarry already being in the City; and (6) the tract is adjacent to the Little Rock Port Authority, and further industrial development is predicted. The tract may be annexed as lands platted and held for sale as municipal lots. A part of a quarry exists upon a segment of the tract, but that quarry is only a small part of an area which is already developed for residential, commercial, and industrial uses. The facts of this case are clearly distinguishable from those in Saunders v. City of Little Rock, 262 Ark. 256, 556 S.W.2d 874 (1977), where the City sought to annex lands which contained 5,000 to 10,000 acres of mining lands.

With regard to tracts C and G, the trial court found:

The acreages in tracts “C” and “G” are in part situated within the floodplain and floodway of Fourche Creek. There are low areas in tracts “C” and “G” which will probably never be developed. The City plans to acquire some lowlands and simply leave these lands as they are now and turn them into parks and green belts. The City does have “proposed plans” for draining some of the lands within these areas. Without question, there are lands within these areas which are now developed, and now being used for municipal purposes. Likewise, some of the undeveloped lands within these areas are presently and will continue to be placed to municipal uses within the immediate future. Access is in place, along with the typical municipal utilities.

Witnesses testified that: (1) 8,000 people reside in tract C in 1,956 single-family units and 395 multi-family units; (2) the tract has 82 commercial uses and 19 industrial uses; (3) rapid development of the tract has caused land-use problems; (4) the area has city water and sewer services as well as municipal utilities; (5) a small part of the tract lies in the floodplain; and one of the city’s reasons for annexation of the area is to control development of the floodplain; and (6) the City would establish a “green finger” belt along a major stream in the tract to enhance proper drainage as well as open space and a park.

The testimony about tract G established: (1) there are 2,030 people in 630 single-family units and 31 multi-family units in the 2,615 acre tract; (2) there are 20 commercial uses and 9 industrial uses of the tract; (3) it represents the growth of the City beyond its boundaries; (4) it has sewer and water districts developing without benefit of municipal controls; (5) the City has already purchased 80 acres and plans to acquire 100 to 160 more for the development of parks and for drainage purposes; and (6) the Master Parks Plan includes an impoundment for the control of flood waters. Tract C meets the criteria of furnishing an abode for a densely settled area, and tract G represents the growth of the City beyond its boundaries.

Appellant argues that, since parts of section C and G are in the floodplain and floodway, they are not proper lands for annexation. For authority, he relies on Saunders v. City of Little Rock, 262 Ark. 256, 556 S.W.2d 874 (1977), and City of Little Rock v. Findley, 224 Ark. 305, 272 S.W.2d 823 (1954). His reliance on those cases is misplaced as the facts of those cases are distinguishable from the case at bar. Here, only a small part of the tracts lies in the floodplain, and a large part is already developed. In Saunders, twelve square miles of floodlands were proposed to be annexed. In addition, the City had no plan for using or draining the floodlands, while the evidence here is that the City has developed an extensive flood control program. In Findley, we held that there was substantial evidence to uphold the trial court’s finding that lands were inappropriate for annexation. However, we commented that the evidence preponderated in the City’s favor.

The trial court’s finding of fact described tract K as follows:

In Tract “K” is a region to the west of the present city limits. It is without residential structures of significance. It is in the path of natural expansion of the City’s westward development. There is only one small platted area which is in the northwest corner of the tract. There are no water or sewer improvement districts extending into the tract; however, those utilities districts have expanded the eastern boundary of this property.

There was testimony that section K was: (1) under intense development pressure because it is adjacent to Pleasant Valley, a prestigious subdivision; (2) the Pleasant Valley Country Club extends into the tract for approximately one mile; (3) there are condominium developments and estate size lots along Hinson Road in the lower portion of the tract; (4) there are large single-family lots and subdivision developments off Ridgehaven Road in the north part of the tract; (5) it has electricity, sewer, and water services; and (6) it is in need of the City’s police powers for zoning and land use controls. The above constitutes evidence that tract K is held for urban development.

The cases cited by appellant as barring annexation are inappropriate. In Parrish v. City of Russellville, 253 Ark. 1000, 490 S.W.2d 126 (1973), the land was more remote from the City and its services, and only 785 acres of the 6,398 annexed were anything other than farms and forest. In Vestal v. Little Rock, 54 Ark. 321, 16 S.W. 291 (1891), that part of the land which was located on the north side of the Arkansas River would be taxed but would not receive any benefit from annexation.

The trial court found that:

Tract “O” consists of a very thin strip of totally wild and undeveloped land. Tract “O” is situated between Walton Heights, an area of fine homes, and the Little Maumelle River. The land in Tract “O” is not platted. The terrain is cliff-like upward from the river. The existing access to this 188.3 acres which comprises Tract “O” is presently limited to the extreme northwest corner of the tract. There exists no streets or roads traversing this property; however, the City is interested in the property as it extends its utilities westwardly; by reason of the Little Maumelle River this area has an attraction as a park site or green belt. The annexation of this tract would extend the city limits to a natural boundary, Little Maumelle River. This area is of significance to the City in its obligation to afford police and fire protection to the residents of Walton Heights and other of its citizens that reside in the area.

Witnesses testified that most of tract O is: (1) a narrow strip of land situated between the Walton Heights subdivision and the Little Maumelle River, with a steep downgrade to the river; (2) it has, in part, a development potential similar to the Walton Heights and Robinwood subdivisions as there is great interest in lots with scenic river views; (3) the riverbank property has a boat ramp which can be developed into a marina; (4) the City has started River Mountain Park, a big metropolitan park which would extend from Murray Park westerly, and it has already purchased 685 acres in the area, including the land on the opposite side of the Little Maumelle River which lies south of the Arkansas River; (5) part of the tract is ideal for the “green finger” concept of open space park land, while another part will serve as a corridor for major water and wastewater utility lines.

It is proper for a city to annex property if it is needed for the purpose of making improvements and if value of the land is derived from actual and prospective use for city purposes. Brown v. Peach Orchard, 162 Ark. 175, 257 S.W. 732 (1924), and Kalb v. City of West Helena, 249 Ark. 1123, 463 S.W.2d 368 (1971). Annexation is not prohibited simply because a tract is “rather rugged” and “heavily wooded” with sparse population. Kalb, supra.

The order of the circuit court in annexation cases will be upheld unless it is clearly erroneous. ARCP Rule 52. We cannot say the findings by the trial court in this case are clearly erroneous.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I must again respectfully dissent. The majority set out the correct law concerning annexations of adjacent territory by cities then promptly forgot what it said and wrote a nice sounding piece of social legislation. The law establishes five criteria, one of which must be met before land is annexed. These five classifications provide that land may be annexed if: (1) it is platted or held for sale or use as municipal lots; (2) whether platted or not, the land is held to be sold as suburban property; (3) the land furnishes the abode for a densely settled community, or represents the actual growth of the municipality beyond its legal boundary; (4) the land is needed for any proper municipal purpose such as for the extension of needed police regulation; or (5) it is valuable by reason of its adaptability for prospective municipal uses. Fifteen tracts of land were included by a single vote. The City of Little Rock provides the residences for about 160,000 people and the area to be annexed contains the residences for about 10,000. When the spokesmen for the city stated they expected to take in $2.00 in taxes from the annexed area for each $1.00 expended they revealed the true purpose of the election. Another reason given was to square up the city boundaries. The record belies this statement because after the new areas are annexed one could stand on the Coleman Dairy property near Asher and University and throw a rock into the unincorporated area. The dairy, the adjacent Worth James property and the Big Rock property extend from near Asher and University across the Fourche bottoms and Arch Street Pike and join other property crossing the old and new Pine Bluff highways into and including College Station. This property was not included in the annexed territory. Certainly College Station meets several of the criteria, yet it was not included. Obviously College Station would not bring in a lot of tax dollars yet it is platted for use as municipal lots and furnishes the abode for a densely settled community. Certainly the first three criteria are met by the property known as College Station. On the other hand tract “O” consists of about 190 acres of rugged rough uninhabitable terrain with no roads, houses, utilities or other improvements. There is one abode on the extreme northwest corner which is the only possible building site except the railroad right of way. The city thought it might be able to lend its experience if there were ever a train wreck on the railroad. How this could be done is not shown since the only access, besides the railroad, is by boat or helicopter. One can look down from Walton Heights and see the tract which mostly consists of a hillside with slopes of 45° to 50°. The city does not have money appropriated or even plans for the use of tract “O”. There is not one bit of evidence in the record that tract “O” meets any of the five criteria for annexation. This tract is not needed for any municipal purpose according to the testimony of the city’s own witnesses. The remonstrants’ testimony tended to reveal that this land is not adaptable to any municipal use now known to exist and cannot ever be developed as business or residential property. It is too rugged even for hiking trails. By no stretch of the imagination can tract “O” ever be adapted for proper city uses. The city says it could be used as a green belt — that is what it is and all it ever will be. The city already owns land for parks and recreation at two sites in sight of this tract. These tracts are so large they will not be developed in the foreseeable future.

If one or more of the tracts included in the same annexation election is found to be improperly included then all must fail. Herrod v. City of North Little Rock, 260 Ark. 890, 545 S.W.2d 620 (1977). Tract “O” would clearly void this election if the law and precedent were followed.

Much of the land included is used exclusively for agricultural and horticultural purposes and, according to the testimony, this is presently the highest and best use for such property. Such lands are unsuitable for annexation in accordance with Ark. Stat. Ann. § 19-307.1 (Repl. 1980) and Saunders v. City of Little Rock, 262 Ark. 256,556S.W.2d874 (1977) (Saunders II).

Without so stating the majority opinion has wiped out the law and precedent and part of the Constitution of Arkansas in upholding this annexation. Article 2, Sections 22 and 23 prevent annexation for the purposes of taxation only. It has long been held by this court that owners of land taken into the cities must derive some benefits or the annexation violates Article 2, Section 22 of the Constitution of Arkansas. Saunders II, supra; Parrish v. City of Russellville, 253 Ark. 1000, 490 S.W.2d 126 (1973); Town of Ouita v. Heidgen, 247 Ark. 943, 448 S.W.2d 631 (1970).

Some of the land included in this annexation has been involved in annexation attempts at least since City of Little Rock v. Findley, 224 Ark. 305, 272 S.W.2d 823 (1954). Some of this same land was the obj ect of the annexation attempts in the cases of Saunders v. City of Little Rock, 257 Ark. 195, 515 S.W.2d 633 (1974) (Saunders I) and Saunders II. Those attempts were declared void by this court. The law has not been changed and some of the land has not changed and probably never will. Admittedly one of the tracts being annexed contains a large productive pecan orchard and is being put to its highest and best use even though the city hopes to condemn part of it for an airport runway and therefore believes the highest and best use may be for other purposes. The annexation statute specifically prohibits annexation of such land. The majority actually relies on Fowler v. Ratterree, 110 Ark. 8, 160 S.W. 893 (1913) in approving this tract as meeting one of the five criteria for classes of property subject to annexation. We have decided many many cases since Fowler and none of them are cited. The current law on annexation is not even mentioned in regard to tract “A”, the land containing the pecan orchard. I think it is not mentioned because it unequivocally prohibits annexation of this tract and would, standing alone, void the annexation of all these tracts.

The most astonishing statement in the majority opinion is this: “The facts of this case are clearly distinguishable from those in Saunders v. City of Little Rock, 262 Ark. 256, 556 S.W.2d 874 (1977), where the City sought to annex lands which contained 5,000 to 10,000 acres of mining lands.” Much of the same mining land is included in the present case. The facts in Saunders and the present case are exactly the same except that the present annexation territory has excluded a part of the mines and some of the flood plains land. Otherwise, only the names have changed. How can it be that these same lands were unsuitable for annexation in Findley, Saunders I and Saunders II, but are suitable now without change of law or the nature and use of the lands? Tract “B” contains a mining pit for which no use is planned by the city other than that it might make a good landfill (garbage dump). The pit being adjacent to the Airport Holiday Inn, such use is unlikely. The line on this tract was drawn down the middle of a street. Therefore, the sheriff will patrol one side of the street and the city the other. It is most interesting to note that this line is carefully drawn to take in only the improved parts of College Station while excluding 95% of the residential area which undisputedly is the abode for a densely settled community and is all either held for sale or platted in lots. More police protection is needed in the small excluded area than any spot in the county. Naturally this area would produce very little revenue and would demand the use of much resources. The only difference in the flood plains land here and in previous annexation attempts is that the land mass differs. Flood land included in the present case occupies hundreds of acres of land mass. The majority erroneously holds that the city has extensive plans for flood control. These so-called plans started with the United States Corps of Engineers back in the 1920’s. The city has contributed to the problems of flooding rather than helping to solve them. In any event controlling floods is not one of the reasons cities are allowed to annex.

Cities are creatures of the legislature. They have neither existence nor power apart from the creator except such as may be given by the Constitution. City of Piggott v. Eblen, 236 Ark. 390, 366 S.W.2d 192 (1963). The creator has given cities the power to annex lands provided certain conditions are met. These conditions are expressly stated in Ark. Stat. Ann. § 19-307.1. Although the majority attempts to justify the propriety of the annexation of each tract, it does not even point out how the tracts meet the criteria. The present law is merely a codification of the law as expressed in the landmark case of Vestal v. Little Rock, 54 Ark. 321,16 S.W. 291 (1891). For almost one hundred years the Vestal principle has controlled our decisions and the Acts of the General Assembly. Now the majority has with one fell swoop obliterated all that has gone before in matters relating to municipal annexations. The opinion would be more useful and straightforward if it announced it was overruling all prior cases and declaring the annexation statute unconstitutional as well as small portions of the Constitution.

It would serve no useful purpose for me to continue. To convince this court of the error of its ways would be no less a problem than trying to convince cities not to annex but to develop from within. I will conclude by saying the City of Little Rock will not need to acquire outside property for garbage dumps for many years to come.


text:
    CENTRAL FLYING SERVICE, INC. v. Larry CAIN
    84-275
    686 S.W.2d 432
    Supreme Court of Arkansas
    Opinion delivered March 25, 1985
    [Rehearing denied April 29, 1985.]

      Wright, Lindsey & Jennings, for appellant.

      Wright & Chaney, P.A., by: Travis R. Berry, for appellee.
   Steele Hays, Justice.

This case comes to us on appeal on the issue of whether the interest charged on a matured debt was usurious.

In July, 1981, Larry Cain, appellee, established an open account with Central Flying Service, Inc., appellant, and began receiving flight training. All services had been performed by the end of October, 1981 and the balance on the account as $4,771.11. Nothing was paid on the account and after several months Central began charging interest on the amount due at a rate of 10% per annum. In December, 1982, when Amendment 60 of the Arkansas Constitution became effective, Central began charging interest at the rate of 17% per annum. Cain refused to pay the account and Central filed suit. The case was submitted on the merits to the Circuit Court of Clark County, Arkansas, on a joint stipulation of fact and the pleadings.

Both parties agreed that the law at the time of the making of the contract determines whether a contract is usurious. General Contract Corporation v. Duke, 223 Ark. 938, 270 S.W.2d 918 (1954); Sloan v. Sears Roebuck & Co., 228 Ark. 464, 308 S.W.2d 802 (1958), but disagreed as to when the contract was made. Appellee argued below that the contract was formed in July, 1981, and was controlled by Article 19, Section 13 of the Constitution, providing for maximum interest rate of 10%. Appellant, citing Bank of Evening Shade v. Lindsey, 278 Ark. 132, 644 S.W.2d 920 (1983) argued that because it was not obligated to renew the debt, any renewal or extension was in essence a new contract. The statement sent for the month of December, 1982, was a new contract and therefore Amendment 60, allowing a higher interest rate, would control. The trial court rejected appellant’s argument and found the contract was controlled by the 10% interest rate of Article 19, Section 13.

On appeal appellant renews the argument made below and we find the argument persuasive.

It is a general rule of contracts that payment is due within a reasonable time upon completion of the services contracted for, and there is no objection raised by appellee that the account was not so due. Once a debt has matured and become due, the creditor may begin to charge interest, even if no interest has before been charged or agreed to. State of Tennessee v. Barton, 210 Ark. 816, 198 S.W.2d 512 (1947); Temple v. Hamilton, 178 Ark. 355, 11 S.W. 465 (1928). Under the circumstances of this case then, the appellant was justified in charging the appellee interest on the debt owing. The only question that remains is whether appellant was justified in charging the higher rate allowed by Amendment 60 when it sent out its charges to appellee in the December, 1982 statement. In Bank of Evening Shade, supra, the bank renewed a loan and charged a rate of interest allowable by law at the date of the renewal but which was higher than that allowed when the contract had originally been entered into. We found inasmuch as.there was no obligation or commitment to renew the loan, a new contract could be made and the existing interest rate was applicable. While that decision was made within the context of the Monetary Control Act and federal regulatory guidelines issued pursuant to the Act, the underlying rationale applies with equal force to this situation which presents essentially the same considerations.

Here, the appellee’s debt was due and the appellant was under no obligation or commitment to renew the loan or extend time for payment. Appellant was free to file suit to recover its debt, or defer that action in the hope that payment would occur. At the end of each monthly billing period a new loan or agreement was implied, extending the appellee’s indebtedness for an additional month. In the month of December another contract was formed, this time however, the appellant had available to it, the higher rate of interest allowed by Amendment 60. Based on our decision in Bank of Evening Shade, we find that under such a contractual arrangement the appellant was justified in charging the higher interest rate. See also, Barrier, Usury in Arkansas: The 17% Solution, 37 Ark. L. Rev. 572 at 578-82.

Appellee points out that Amendment 60 did not become effective until December 3, 1982, whereas the stipulation between the parties recites that interest at the rate of 17% began on December 1, 1982. Thus, appellee contends the charge of 17% would be usurious even if Amendment 60 were . found to be applicable to this indebtedness.

But it is clear from the arguments made both here and below that the intent of the stipulation was to simplify the factual basis by which the real issue was presented, that is, whether an indebtedness which originated prior to the effective date of Amendment 60 was subject to the higher interest allowed by the amendment. Whether Amendment 60 took effect on December 1 or December 3, is irrelevant in the context of this case and we note the trial court did not rely on that fine distinction.

Even if the stipulation is taken literally, as appellee urges, it also recites that an itemized statement of account attached to the complaint is an accurate recapitulation of the account. That account shows the interest charge for December, 1982, to have been $60.51, whereas 17% would have been $65.76. That leaves a difference of $5.25, and thus the appellant could not have calculated interest on December 1 at 17%.

The order is reversed and remanded to the trial court for the entry of a judgment consistent with this opinion.

       The amounts of interest allowable under Amendment 60 are not argued.


text:
    Bessie W. COFFELT v. ARKANSAS STATE HIGHWAY COMMISSION
    84-268
    686 S.W.2d 786
    Supreme Court of Arkansas
    Opinion delivered March 25, 1985
    [Rehearing denied April 29, 1985.]

      Kenneth C. Coffelt, for appellant.

      Thomas B. Keys, Philip N. Gowen, and Charles Johnson, for appellee.

      Hickman, J., not participating.

   David Newbern, Justice.

This appeal and cross appeal are from a condemnation judgment which, after a jury trial, awarded $40,000 to the appellant. It is the second appeal in the case, and as the first appeal was decided in this court, we have jurisdiction. Arkansas Supreme Court and Court of Appeals Rule 29. 1. j.

In July, 1955, Mr. and Mrs. D’Angelo conveyed to Pulaski County an easement for the right of way for State and U.S. Highway 67. The easement disected a parcel of land owned by the D’Angelos. The deed contained this language:

This conveyance is made for the purpose of a freeway and adjacent frontage road and the grantor hereby releases and relinquishes to the grantee any and all other abutter’s rights including rights appurtenant to grantor’s remaining property in and to said freeway, provided, however, that such remaining property shall abut upon and have access to said frontage road which will be connected to the freeway only at such points as may be established by public authority.

On September 8, 1955, the D’Angelos conveyed their remaining interest in the parcel by warranty deed to Kenneth and Bessie W. Coffelt. Mr. Coffelt subsequently conveyed his interest in the parcel to Mrs. Coffelt.

As the north-south highway was constructed, entrance and exit ramps existed permitting entrance and exit to and from the highway upon a road known as Coffelt Road which runs east and west contiguous to the southern boundary of the Coffelt property on both sides of the highway. For a time, one could, by numerous stops and starts, cross from west to east, and vice versa, directly from the Coffelt land on one side of the highway to the Coffelt land on the other side. It required stopping at each of the frontage roads and stopping prior to crossing each of the two double lanes of Highway 67.

Pulaski County transferred its right in the easement to the Arkansas State Highway Commission, and in 1972 Mrs. Coffelt sued the Commission to enjoin it from interfering with the Coffelt Road crossing, alleging the Commission was planning to close Coffelt Road and thus deny her direct access from her property on one side of the highway to her property on the other side.

In her complaint Mrs. Coffelt alleged the Commission had promised to construct an overpass. While that point was apparently not pursued, it is mentioned here as an aid to understanding what is at stake in this case. Had an overpass or underpass been constructed permitting Coffelt Road to remain passable across the highway, Mrs. Coffelt would have had no claim against the Commission.

This court ultimately affirmed injunctive relief awarded to Mrs. Coffelt. We held the initial entry of the Commission on the land to construct the highway was consistent with its easement. Thus the initial construction was not notice that the Commission was taking the fee and therefore Mrs. Coffelt was not barred by a statute of limitations from asserting her right in the fee underlying the easement. The taking of Mrs. Coffelt’s interest remaining in the fee under the easement will permit closing Coffelt Road where it crosses the highway. We said whether Mrs. Coffelt would be entitled to damages from taking the fee was a matter yet to be determined. Arkansas State Highway Commission v. Coffelt, 257 Ark. 770, 520 S.W.2d 294 (1975).

That very matter was sought to be determined in the case before us now. The Commission sued to condemn the fee. In her appeal of the damages judgment in her favor, Mrs. Coffelt alleges she was erroneously prevented from giving her testimony as to the value of her land before and after the interruption of Coffelt Road. In the cross appeal the Commission contends the court erred in not granting a motion in limine, in refusing to strike expert testimony offered by Mrs. Coffelt’s witness and in allowing Mrs. Coffelt to state that the court was taking judicial notice of the earlier chancery decree.

1. Mrs. Coffelt’s Testimony

Mrs. Coffelt’s attorney began his questioning of her by asking her generally about her land. She responded that her land on the east side of the highway was 2.9 acres and gave figures on its length, width and depth. She gave similar testimony about the approximately 20 acres on the other side where she and Mr. Coffelt had resided nearly thirty years. She discussed the topography of the land and its usefulness as commercial property, noting that at one corner she had an antique shop. She spoke of the lack of drainage problems and of the accessibility to city water and utilities. She also testified about the nearest access points to the highway from the frontage road and about the nature of nearby commercial uses.

When Mrs. Coffelt’s lawyer then asked her the value of her land before taking, the Commission objected on the basis that Mrs. Coffelt was not shown to be an expert or to be qualified as a landowner to testify as to the value of her land. Her lawyer then asked her if she was “familiar with land values in that area generally, particularly commercial properties, ’ ’ to which she responded in the negative. She was then asked if she were familiar “with the fair market value of these properties.” The Commission again objected. Her lawyer then asked:

Based upon the information you have, Mrs. Coffelt, do you have an opinion as to the fair market value of your property immediately prior to the taking?

Whereupon the judge said:

Well, now I’ve got to sustain the objection, Mr. Worsham. I thought you were going to ask her some more questions about what she based her evaluation on.

More questions followed, but Mrs. Coffelt was not permitted to testify as to value, except to proffer her testimony out of the jury’s presence.

While we can understand some of the confusion caused by questions asked of Mrs. Coffelt by her attorney which would more properly have been asked of an expert witness, it is clear that Mrs. Coffelt had shown sufficient knowledge of her own property to qualify her to state its value in her capacity as owner of the land.

On this point the Commission cites only Arkansas State Highway Commission v. Darr, 246 Ark. 204, 437 S.W.2d 463 (1969), in which a landowner’s testimony as to the value of land was held to have been properly stricken. But there was no showing in that case that the witness had ever lived on the land. Nor was she asked about the fair market value of her land. Instead, she was asked how much the land was “worth” with no definition of “worth.” She had also given statements about the land which were contradicted by other witnesses, and the evaluation reached in the judgment was entirely dependent on her testimony, as it was too high to have been based on the testimony of other witnesses.

In the case before us, it is clear that although there were other questions Mrs. Coffelt could not answer, the ones to which she quite adequately responded were sufficient to show she had a thorough knowledge of her land. In Arkansas State Highway Commission v. Taylor, 269 Ark. 458, 602 S.W.2d 657 (1980), we held that as long as a landowner demonstrates an intimate knowledge of his own property he may give his opinion as to its value, and he need not know the value of other, comparable properties. A demonstrated familiarity with his land is sufficient. Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S.W.2d 563 (1969). Thus it was error for the court not to allow Mrs. Coffelt to testify with respect to the value of her land before and after the taking.

2. Motion in Limine

The Commission moved at the outset to prevent testimony having to do with diminution of the value of Mrs. Coffelt’s land due to inability to enter the highway at its intersection with Coffelt Road. The motion was based on the deed from the D’Angelos to the county which had so clearly given up that right and to which their deed to the Coffelts made reference. We have no doubt the motion should have been granted.

Had there been a correct ruling on the motion in limine, the Commission’s next point would have been obviated. Mr. Larrison testified for Mrs. Coffelt as an expert. The evaluation he gave was clearly based on failure to understand that the D’Angelos, and thus their successor Mrs. Coffelt, had conveyed away their right of access at the Coffelt Road intersection to Highway 67. Mr. Larrison said specifically his evaluation had been done on the basis of loss of such access and not just loss of the right to cross the highway from one side of the Coffelt land to the other. He was given an opportunity to separate the right to cross the highway from the right of direct access to the highway, and he was unable to do it, thus it was error to permit Mr. Larrison’s estimate to go to the jury. Arkansas State Highway Department v. Wallace, 247 Ark. 157, 444 S.W.2d 685 (1969).

3. Judicial Notice

This point need only be discussed because it may come up upon retrial. As stated earlier, the only question in the first appeal in this case was whether a statute of limitations had run, preventing Mrs. Coffelt from seeking damages for condemnation of the fee underlying the easement across her land so as to permit closing Coffelt Road where it crossed the highway. We held the statute had not run. We said:

We do not pass upon the effect of the various deeds on damages claimed in this case, but we are of the opinion the chancellor’s finding that the appellee owns the fee title to at least twenty feet of Coffelt Road is not against the preponderance of the evidence. We conclude, therefore, that the chancellor did not err in granting the injunction until the question of damages, if any, is fully determined. [257 Ark. at 780, 520 S.W.2d at 300]

Our decision was thus a very narrow one; so was the chancellor’s and yet the following exchange appears in the record in the case before us now:

Your Honor, the defendants are preparing to rest. But before we do, I believe before the recess I had tendered a decree. Your Honor, at this time we are proposing to withdraw the decree because it’s my understanding the Court is taking judicial notice that a decree was entered on April 17,1974, giving the defendants the right to the free use of Coffelt crossing and to the right of ingress and egress on said Coffelt crossing and to the free flow of traffic thereon. Is that correct, Your Honor?
THE COURT: I’m so taking judicial notice.

This characterization of the earlier decree was thus at least possibly misleading. Two paragraphs of the chancellor’s decree are set out in our earlier opinion 257 Ark. at 778, 520 S.W.2d at 299. The chancellor made it clear that Mrs. Coffelt had no right of access to the highway from Coffelt Road but that the right to cross over had not been compensated and thus the Commission was enjoined from closing Coffelt Road without condemning the remaining interest of Mrs. Coffelt.

The judicial notice taken could easily have been interpreted by j urors as being in excess of that j ustified by the decree, and certainly in excess of this court’s interpretation of that decree in the first appeal. We need not decide whether the judicial notice thus taken and possibly misleading was error; however, we caution that upon retrial if there is another attempt at condensing the first decree and our opinion affirming it, more care should be taken to see that it is accurately limited.

Reversed on appeal; reversed on cross appeal, and remanded.

Justice Hickman not participating.