text:
    Bill RANKIN v. CITY of FORT SMITH
    98-037
    990 S.W.2d 535
    Supreme Court of Arkansas
    Opinion delivered May 27, 1999

      Oscar Stilley, for appellant.

      Daily & Woods, by: Jerry Lee Canfield and Barry D. Neal, for appellee City of Fort Smith.

      Ledbetter, Hornberger, Cogbill & Arnold, by: Charles R. Ledbetter, for appellee First National Bank.

      Shemin Law Firm, by: Kenneth R. Shemin, for appellee Stephens, Inc.
   Lavenski R. Smith, Justice.

This is an appeal from the Sebastian County Chancery Court which entered a summary judgment dismissing the complaint of appellants, Bill Rankin and Horton O. Elzea (“appellants”). Appellants complained that the City of Fort Smith (the “City”) illegally exacted funds from its general fund to help pay for bonds issued by the city’s Parking Authority for the construction of a downtown parking deck. We find no error and affirm.

Facts

In 1985, the City of Fort Smith issued revenue bonds to fund the building of a parking garage on the 700 block of Rogers Avenue in downtown Fort Smith. The City also created the Parking Authority to oversee the parking facilities and the collection of the revenues. In 1991, the City of Fort Smith Board of Directors (“Directors”) determined that substantial debt service savings could be realized by refunding the 1985 bonds by issuance of Parking Facilities Refunding Revenue Bonds, Series 1991, in the amount of $1,775,000 (“the bonds”). Appellee Stephens, Inc. (“Stephens”), bought the bonds.

Under appropriate constitutional and statutory provisions, the special obligation bonds were issued to be paid from the revenues collected from parking facilities owned and operated by the City, including revenues from the parking garage and all parking meters. The City enacted Ordinance 64-91 to effectuate the bond sale and terms of repayment. The ordinance provided for the terms of repayment and use of any surplus revenues. Specifically, the ordinance stated:

Section 6. The City covenants and agrees that it will own, operate and maintain a sufficient amount of parking facilities and will fix and collect rates and charges for the use of all parking facilities owned and operated by the City (the “Parking Facilities”), including the increasing of the same from time to time if necessary, which shall be sufficient, together with other available funds, to make the required deposits into the Bond Fund, the Depreciation Fund and the Operation and Maintenance Fund (all hereinafter identified).

During the ensuing years, the revenue collected from the parking facilities was sufficient to cover the repayment of the bond and interest thereon, as noted in the pleadings and discovery filed by both parties. The terms of repayment under the revenue bond agreements required revenue monies collected and placed in a “Revenue Fund” to be transferred on the first business day of each month a sum equal to (i) 1/6 of the next installment of interest on the bonds plus (ii) 1/12 of the next installment of principal of the bonds plus (iii) an amount sufficient to provide for Trustee’s fees. Surplus revenues would then be applied to the Depreciation Fund and the Operation and Maintenance Fund. The ordinance specifically provided that nothing required or prevented the City from expending any funds, other than revenue, “for operation and maintenance of the Parking Facilities or for premiums on insurance.”

In addition to the revenue collected from the parking facilities, during the years 1992 through 1996, the City paid from its General Fund to the Parking Facilities Fund the following amounts:

Year Amount Transferred
1992 $140,000
1993 $80,000
1994 $80,000
1995 $80,000
1996 $121,500

The Directors made these appropriations in the City’s ordinances for these years. Appellants filed suit on October 22, 1997 contending these appropriations were illegal. Appellants state two bases for the the alleged invalidity of the City’s actions. First, appellant contends that the Directors’ actions constituted an illegal exaction in violation of the Arkansas Constitution. Second, Appellants contend the City illegally commingled the General Fund monies with the Parking Facilities Fund monies under Ark. Code Ann. § 14-304-209(c). The complaint requested that the $501,500 paid from the General Fund into the Parking Facilities Fund be refunded to the General Fund.

Appellees, the City, First National Bank of Fort Smith (“the Bank”), and Stephens moved for summary judgment, and appellants cross-motioned for summary judgment, all contending that there were no genuine issues of material fact. A hearing was held on December 5, 1997, on all parties’ motions for summary judgment. Stephens and the Bank joined in the City’s motion for summary judgment. At the hearing and in a written decree entered on December 10, 1997, the Court entered summary judgment in favor of appellees, specifically finding that the transfer of monies from the General Fund to the Parking Facilities Fund was not an illegal exaction. The Court noted that the pleadings and supporting documents showed the following figures:

Year Revenues Collected Debt Service
1992 $ 271,277.00 $ 258.845.00
1993 $ 283,617.00 $ 229,243.00
1994 $ 282,109.00 $ 232,411.00
1995 $ 269,163.00 $ 234,834.00
1996 $ 248,701.00 $ 236,551.00

The court found that because the Parking Facilities Fund’s collected revenues exceeded the debt service bond requirements, there was no violation of Arkansas constitutional or statutory law. The court dismissed the case with prejudice. The additional findings by the court addressed a separate issue which has since become moot and which appellants have not pursued on appeal. Appellants timely appealed, and the court of appeals certified this case to the Arkansas Supreme Court under Ark. R. Sup. Ct. 1-2(b)(1), (2) and (6) as a case involving an issue of first impression, an issue of substantial public policy, and an issue involving a substantial question of law interpreting an act of the General Assembly.

Standard of Review

Motions for summary judgment are governed by Ark. R. Civ. P. 56, which provides that a party may move with or without supporting affidavits for a summary judgment upon all or any part of a claim. A summary judgment should be granted only when it is clear that there is no issue of fact to be litigated. Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998); Dillard v. Resolution Trust Corp., 308 Ark. 357, 824 S.W.2d 387 (1992). The moving party has the burden of showing that there is no genuine issue of material fact; all proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (1993). The movant must show entitlement to judgment as a matter of law. Keller v. Safeco Ins. Co. of America, 317 Ark. 308, 877 S.W.2d 90 (1994). Once the moving party has demonstrated prima facie that no material issue of fact remains, the defending party must respond, showing facts which would be admissible in evidence to create a factual issue. Dixie Ins. Co. v.Joe Works Chevrolet, Inc., 298 Ark. 106, 766 S.W.2d 4 (1989). On appeal, we view the evidence in the light most favorable to the one against whom summary judgment was granted, Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994), and determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. Keller v. Safeco, supra. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998).

Illegal exaction

Appellants contend that the City of Fort Smith’s payment from its General Fund into the Parking Authority’s Fund constituted an illegal exaction, i.e., an unlawful use of taxpayer’s money. Starnes v. Sadler, 237 Ark. 325, 328, 372 S.W.2d 585 (1963). The Arkansas Constitution expressly enables the people to challenge suspect expenditures and prevent illegal misuses of tax revenue. Ark. Const. Art. 16, § 13. The burden of proof in an illegal-exaction case, as in other civil matters, rests with the party alleging its existence. In the instant case, appellants sought to establish the existence of an illegal exaction by alleging that the City unlawfully used its General funds to pay revenue bond indebtedness in violation of Amendment 65 of the Arkansas Constitution and Ark. Code Ann. § 14-304-206. Appellants initially contended that the funds were transferred to the Parking Authority specifically to meet alleged shortfalls in the Fund’s debt service obligation for the revenue bonds. However, the appellee City produced an affidavit containing evidence that for each year in question, the parking facilities’ revenue exceeded the bond service debt obligation. Appellants offered no countervailing proof. They, in fact, have not contested the validity of the City’s assertion that the parking facilities revenue exceeded its debt service. Instead appellants aver that the very fact that general funds were transferred to the Parking Authority Fund demonstrated conclusively that an illegal exaction occurred. This, however, is insufficient where the only facts in evidence support a contrary conclusion. The parties sought resolution of this matter by opposing summary-judgment motions thus indicating their stipulation that no disputed facts remained. They thereby indicated a willingness for the trial court’s decision to be based upon the facts then in evidence whether or not other facts could have been adduced by further discovery or subsequent trial. When a summary-judgment motion is put forth with affidavits attached, the motion’s opponent cannot rely on a bare denial or contrary allegation but must meet proof with proof. George v. Jefferson Hospital Assoc., 337 Ark. 206, 987 S.W.2d 710 (1999), citing Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Appellants failed to do so. Therefore, the trial court did not err in granting appellees’ motion for summary judgment with respect to appellants’ illegal-exaction claim.

Commingling

In addition to their illegal-exaction claim, appellants argue that the City’s General Fund monies were improperly commingled with the Parking Authority Fund money in violation of Ark. Code Ann. § 14-304-209 (c). This statute, which was repealed in 1997, stated in part:

(c) The treasurer of the municipality shall be custodian of the funds derived from income received from the parking facilities, and all of the funds received as such income shall be kept separate and apart from the other funds of the city.

Appellants apparently assert that commingling alone justifies repayment of the General Fund monies. Appellants argue that the funds cannot be commingled so that taxpayers can be protected from “misjudgments of credit-happy municipalities” and “careless revenue bond purchasers.” Appellees counter this argument by stating that appellants’ construction of that statute places an unnecessary limitation on the spending power of a city when its true purpose is to assure adequate accounting safeguards for the parking facilities revenues. As such, it strains the construction of the statute. Instead, they argue that the statute should be read as one that principally establishes a basic accounting principle. We agree with appellees.

The appropriate interpretation of Ark. Code Ann. § 14-304-209(c), given the context of the surrounding statutes, is that the legislature intended it to assure a proper accounting system was in place with adequate audit procedures and safeguards with respect to parking facility bond issues. It specifies that discrete accounts be maintained, we believe, to protect the integrity of the bond issue and thereby insure that revenues are used for their proper purpose. In other words, it provides that parking facility income be distincdy accounted for and is intended more to prevent its use for other purposes than to prevent the City from adding anything to it. We do not read it to be an express prohibition against General Fund monies being transferred to the parking facilities authority for specific use in operating and maintaining the facilities. The record simply does not reflect that funds were transferred for the purpose of paying bond indebtedness nor does it show that they had that effect. The excess General Fund monies in question were specifically appropriated for use in .the maintenance and operation of the parking facilities. The undisputed facts upon which the trial court’s judgment was entered indicate that the City’s treasurer maintained the City’s system of accounts in such manner that income derived from the parking facilities was accounted for separately in compliance with Ark. Code Ann. § 14-304-209(c).

Affirmed.

Special Justice Bud Cummins joins in this opinion.

Thornton, J., not participating.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Terry FRITTS v. State of ARKANSAS
    CR 99-519
    990 S.W.2d 549
    Supreme Court of Arkansas
    Opinion delivered May 27, 1999

      Robert Meurer, for appellant.
    No response.
   Per Curiam.

Appellant Terry Fritts, by and through his attorney, has filed a motion for rule on the clerk which we will treat as a motion for belated appeal. His attorney, Robert Meurer, admits by motion that the appeal was not timely filed due to a mistake on his part. Specifically, the notice of appeal was filed before the judgment and commitment order was entered.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    In Re: Robert Fuller MEURER (Arkansas Bar ID #85108)
    99-427
    990 S.W.2d 552
    Supreme Court of Arkansas
    Opinion delivered May 27, 1999
   Per Curiam.

This is an original action brought by the Supreme Court Committee on Professional Conduct. The Committee petitions this court for an order requiring Robert Fuller Meurer to appear before this court and show cause why he should not be held in contempt for wilfully violating the Committee’s “Findings and Consent to Discipline Order” entered February 12, 1999. The Committee further asks this court to order Mr. Meurer to comply with the specific terms of that order.

The Committee’s petition and amended petition, which are attached to this order, reflect that in 1998, Tressia Russell filed a disciplinary complaint against Mr. Meurer, alleging unprofessional conduct on his part. The complaint and Mr. Meurer’s response were submitted to the Committee for ballot vote on September 1, 1998. The Committee’s decision was sent to Mr. Meurer on October 2, 1998. On November 3, 1998, Mr. Meurer made a timely request for a de novo hearing before the Committee. The results of the hearing are reflected in the February 12, 1999 order, which provided that, in return for making $18,000 restitution to Ms. Russell in monthly installments of $300, Mr. Meurer would receive a reprimand from the Committee. The terms of the order were read into the record at the hearing, and the Committee informed Mr. Meurer that if he failed to comply with the terms of the order, he would be subject to contempt proceedings of the Committee and this court. Copies of the Committee’s order were sent to Mr. Meurer, at the address listed with the Clerk of this court, on two occasions in February and March of 1999; the first order was not returned, but the second order was returned to the Committee marked “unclaimed.” As of the date the amended petition was filed, April 30, 1999, the Committee alleges that Mr. Meurer has failed to make any payments to Ms. Russell and has likewise failed to pay costs of $150 assessed to him in this matter.

Pursuant to the Committee’s petition, as amended, we order Mr. Meurer to appear before this court at 9:00 a.m. on June 24, 1999, for consideration of the relief requested in the Committee’s petition, including why he should not be held in contempt. This hearing specifically supersedes the notice of hearing previously issued by the Committee for May 27, 1999.

Petition granted.


text:
    Stacey Eugene JOHNSON v. STATE OF ARKANSAS
    CR 98-743
    990 S.W.2d 553
    Supreme Court of Arkansas
    Opinion delivered May 27, 1999

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

Appellant Stacey Eugene Johnson, by and through his attorney, David Lewis Clark, has filed a motion for an extension of time to file Appellant’s brief. Appellant was convicted of capital murder and sentenced to death by lethal injection in a judgment entered on November 24, 1997.

The transcript in this case was filed on June 19, 1998. On July 17, 1998, Appellant’s counsel filed a motion to settle the record and for an extension of time to file Appellant’s brief. We granted Appellant’s motion for writ of certiorari to settle the record on September 10, 1998. The writ was returned on October 12, 1998, and the supplemental record was filed at that time. Thereafter, on December 3, 1998, we granted Appellant’s motion for access to sealed psychotherapy records and directed the Clerk to set a new briefing schedule. See Johnson v. State, 335 Ark. 333, 982 S.W.2d 669 (1998) (per curiam). Under the new briefing schedule, Appellant’s brief was due on January 12, 1999.

On January 11, 1999, Appellant’s counsel was granted a seven-day clerk’s extension, making Appellant’s brief due on January 19, 1999. Subsequently, counsel filed a motion for an extension of time to file Appellant’s brief, and the extension was granted until March 29, 1999. Counsel filed another motion for an extension of time to file Appellant’s brief, and a final extension was granted until April 28, 1999. On that date, and again on May 12, 1999, counsel filed motions for a further extension of time to file Appellant’s brief. As of this date, no brief has been filed.

In the pending motion, Mr. Clark accepts full responsibility for having failed to timely file Appellant’s brief. We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Davis v. State, 335 Ark. 136, 983 S.W.2d 122 (1998) (per curiam); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). A copy of this per curiam opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

Additionally, we order Mr. Clark to appear before this court at 9:00 a.m. on July 1, 1999, to show cause why he should not be held in contempt for failing to timely file Appellant’s brief.

Motion granted.


author: Tom Glaze, Justice.

text:
    Kingrale COLLINS v. STATE of Arkansas
    CR 98-563
    991 S.W.2d 541
    Supreme Court of Arkansas
    Opinion delivered June 3, 1999

      Chris Tarver, for appellant.

      Mark Prior, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Kingrale Collins brings this appeal from a conviction of capital murder and a death sentence. He does not challenge the sufficiency of the evidence, but raises three points for reversal, challenging the trial court’s adverse rulings denying Collins’s motion to change venue, refusing his request to proceed pro se, and overruling his objection to submission of two aggravating circumstances to the jury during the sentencing phase of the trial. Our court accepts jurisdiction of this case under Ark. Sup. Ct. R. l-2(a)(2) because the case is a criminal appeal in which a death sentence has been imposed.

Before considering Collins’s points in the order above, we first summarize the facts needed to discuss and dispose of his arguments. In the early morning hours of May 18, 1996, Richard Cox went to Collins’s residence, and, for reasons known best to them, they took Collins’s twelve-gauge shotgun and proceeded to a trailer court where they rang the doorbell of Charlotte Archer’s residence. Archer opted not to open the door when she looked out the window and saw two men with a shotgun outside the door. The men, later identified as Cox and Collins, left the Archer residence after getting no response. Archer said that she heard gunshots moments after the men left. Cox and Collins had gone up the street, knocked on the door of Brandon Sanders’s house, where Holly Strickland and her husband were visiting, and when Holly opened the door, the men shot and killed her. Amy Renee Abbott was visiting with Holly at Sanders’s, and the two women were in the living room when Holly was shot. Amy said the men shot the gun three times. Amy also said that, during the shooting, she squatted down and fell over, and acted like she was shot. Soon after the shooting at about 3:00 a.m. on May 18, Antonio Milan reported that he saw Collins alone in the parking lot outside a laundromat, and Collins possessed a twelve-gauge shotgun, which had duct tape on its handle. The next day Collins stopped Milan and told Milan that he had “killed the bitch.” Collins had a green shell in his mouth when he made the statement. The police obtained a search warrant as a result of their investigation, which permitted them to search Collins’s residence. Officers found the shotgun used in Holly’s murder in Collins’s bedroom, and they also located the same type shells that were used in the shooting. Collins later gave a confession impheating himself in the crime and identifying Cox as the trigger man.

In turning to Collins’s first argument, he submits that the trial court erred in denying his motion for change of venue, wherein he cited that pretrial publicity made it unlikely he could have a fair trial in Cross County. In making his argument, Collins relied largely on the voir dire responses of the venire panel, particularly jurors Jim Kelly, who was chosen foreman, and Seamon Haynes, an alternate juror who never served.

This court has held that a criminal case may be removed to a circuit court of another county upon a showing that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). The burden is on the defendant to show the general mindset of the populace and the concomitant impossibility of receiving a fair trial. Id. at 536, 792 S.W.2d at 291. In making a determination of the accused’s ability or inability to receive a fair trial, the trial court has an opportunity to observe witnesses and to make a determination as to whether or not a particular mindset or prejudice pervades the entire county. Id. We will not disturb the finding of the trial court in the absence of an abuse of discretion. Id.

This court has also held that, where a defendant has failed to exhaust his peremptory challenges prior to the seating of the jury, the defendant is in no position to demonstrate prejudice from a ruling denying his venue motion. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997). That is the situation here. After moving for change of venue, Collins used only eleven of his twelve peremptory challenges. For this reason alone, Collins has failed to demonstrate the prejudice necessary for us to hold that the trial court abused its discretion in denying Collins’s motion.

Collins next argues error in the trial court’s refusing to allow him to proceed pro se. Collins contends he informed the trial court early that he was unhappy with his appointed attorneys and wished to represent himself or have other attorneys appointed. It is undisputed that Collins was displeased with his counsel. Counsel acknowledged Collins’s unhappiness and stated that he would not cooperate; thus, counsel moved to withdraw, alleging Collins would be denied effective assistance of counsel if they continued to represent Collins when he would not communicate with them. Collins responded, saying, “I just want another lawyer; they are trying to make me cop out, man, [and] I do not understand what they are talking about.” The trial court, in denying counsels’ motion to withdraw, stated the following:

It will be the judgment of the court, Mr. Collins, that any motion that you have made to your own attorney will be denied. If you want to go hire any attorney and have him here to assist, just as long as there is no continuance in the matter because of it, that is your choice.

The constitutional right to counsel is a personal right and may be waived at the pretrial stage or at trial. Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999). A defendant may proceed pro se in a criminal case when: (1) the request to waive the right to counsel is unequivocal and timely asserted; (2) there has been a knowing and intelligent waiver of the right to counsel; and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999). Determining whether an intelligent waiver of the right to counsel has been made depends in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused. Id. Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Id.

In the instant case, Collins never made an unequivocal request to waive counsel. In fact, more than one month prior to trial, Collins related to the trial court that “he just wanted another lawyer.” Although the trial court held three additional hearings prior to trial, Collins only continued to express his dissatisfaction with his counsel, but he merely requested he wanted different counsel, not that he desired to represent himself. It is well settled that Collins’s right to counsel is not absolute, and he may not use his right to counsel to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice. Edwards v. State, 321 Ark. 610, 615, 906 S.W.2d 310, 313 (1995).

In his third and final argument, Collins states that, during the sentencing phase, the trial court erred in finding there was sufficient evidence to support the following two aggravating circumstances:

(1) Collins previously committed another felony, an element of which was the use or threat of violence to another person, or creating a substantial risk of death or serious physical injury to another person, and
(2) In the commission of the capital murder, Collins knowingly created a great risk of death to a person other than the victim. See Ark. Code Ann. § 5-4-604(3) and (4) (R.epl. 1997).

In short, Collins asserts that the jury could impose the death penalty only if it finds beyond a reasonable doubt that one or more statutorily defined aggravating circumstances exist, outweigh any mitigating circumstances found to exist, and justify a sentence of death. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998). Collins further correctly submits that our court may affirm a jury’s finding that an aggravating circumstance exists beyond a reasonable doubt only if the State has presented substantial evidence in support of such element of the aggravating circumstance. Id. at 10, 977 S.W.2d at 196. As already mentioned above, Collins claims our court should reverse for resentencing because the State’s evidence was insubstantial to affirm the jury’s findings on the two aggravators.

The State first contends Collins’s argument is procedurally barred because Collins failed to timely move for directed verdict to test the sufficiency of the evidence relating to the two aggravating circumstances or object to their submission to the jury until the jury returned its verdict. See Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). The State correctly points out that Collins failed to preserve his sufficiency-of-the-evidence issue pertaining to the second aggravator — knowingly created a great risk of death to a person other than the victim — but Collins did properly object to the aggravating circumstance asserting that he had committed a prior violent felony; therefore, we do address this aggravator. Even so, Collins’s objection, as discussed below, was (and is) meritless, and we affirm based on the prior-violent-felony aggravator, since our court has held that the only requirement is that the jury unanimously find at least one of the aggravating circumstances to exist before it can impose the death penalty. Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995).

In proving Collins had committed a prior violent felony, the State offered its Exhibit 28, which contained a criminal information and conviction judgment reflecting that Collins had previously been found guilty of first-degree battery under Ark. Code Ann. § 5-13-201 (Repl. 1997) — a Class B felony. Collins objected, insisting that the documents could not be admitted into evidence because the individual documents were not certified. The documents showed that Collins, on October 15, 1993, by using a deadly weapon, caused serious physical injury to Jason Daniels. Without proper certification of these documents, Collins argues that the State failed to prove he had been convicted of a prior violent felony.

First, we note that, as the court has held in Greene, 335 Ark. 1, 977 S.W.2d 192 (1998), the State need only prove that a felony was previously committed and that the prior felony necessarily involved use or threat of violence to another. (Emphasis provided.) There is no requirement of proof of conviction of a crime. 335 Ark. at 13, 977 S.W.2d at 197. (Emphasis provided.) Collins is wrong, however, that the State failed to introduce certified documents to prove he committed a prior violent felony. The State’s Exhibit 28 was collectively certified as documents showing Collins had been convicted of a prior Battery I charge, and it is undisputed that the documents showing that felony came from the State’s certified case file. Collins even agreed to this fact at trial. Accordingly, we hold that the trial court was correct in allowing these documents into evidence and that the documents show beyond a reasonable doubt that Collins committed the aggravating circumstance of a prior violent felony under § 5-4-604(3). Moreover, because the jury found the evidence was insufficient to prove that a mitigating circumstance probably existed, see AMCI2d 1008 (Form 2, “Mitigating Circumstances”), even if Collins might have shown error in giving the great-risk-of-death aggravator, the error would have been harmless under Ark. Code Ann. § 5-4-603(d) (Repl. 1997; Hill v. State, 331 Ark. 312, 962 S.W.2d 762, cert. denied, 119 U.S. 145 (1998).

The record in this case has been examined for errors prejudicial to the defendant in accordance with Ark. Sup. Ct. R. 4-3(h), and no reversible errors have been found. Hence, for the reasons above, we find no error in the trial court’s rulings and therefore affirm Collins’s conviction and sentence of death.

       There was one version given that robbery was a motive, but Collins gave a statement that Cox wanted to shoot someone as a part of an initiation into a gang.

       Our statement in no way implies that the “great-risk-of-death aggravator” was given in error. The State offered evidence that supported this aggravating circumstance, but we simply need not reach the merits bearing on this additional aggravator because it is unnecessary to do so.


author:
Annabelle Clinton Imber, Justice.
      Robert L. Brown, Justice,

text:
    GHEGAN & GHEGAN, INC., On Behalf of Itself and All Taxpayers Similarly Situated v. Richard WEISS, Director of the Arkansas Department of Finance and Administration
    98-1310
    991 S.W.2d 536
    Supreme Court of Arkansas
    Opinion delivered June 3, 1999

      Timothy Davis Fox, PLLC, by: Timothy Davis Fox, and Bond & O’Brien, by: Pat O’Brien, for appellant.

      Kenneth R. Williams, for appellee.
   Annabelle Clinton Imber, Justice.

This is an illegal-exaction case. The appellant, Ghegan & Ghegan, Inc. (“Ghegan”), claims that the trial court erred when it ruled that Ghegan did not have standing to challenge the constitutionality of a portion of the Arkansas Soft Drink Tax Act. We reverse and remand.

Ghegan, an Arkansas Corporation, filed on behalf of itself and all taxpayers similarly situated an illegal-exaction action challenging the constitutionality of section 26-57-904 (Repl. 1997) of the Arkansas Soft Drink Tax Act, which provides that:

(a) There is hereby levied and there shall be collected a tax upon every distributor, manufacturer, or wholesale dealer, to be calculated as follows:
(1) Two dollars ($2.00) per gallon for each gallon of soft drink syrup or simple syrup sold or offered for sale in the State of Arkansas;
(2) Twenty-one cents (210) per gallon for each gallon of bottled soft drinks sold or offered for sale in the State of Arkansas;
(3) Where a package or container of powder or other base product, other than a syrup or simple syrup, is sold or offered for sale in Arkansas, and the powder is for the purpose of producing a liquid soft drink, then the tax on the sale of each package or container shall be equal to twenty-one cents (210) for each gallon of soft drink which may be produced from each package or container by following the manufacturer’s directions. This tax applies when the sale of the powder or other base is sold to a retailer for sale to the ultimate consumer after the liquid soft drink is produced by the retailer.
(b)(1) Any retailer or retail dealer who purchases botded soft drinks, soft drink syrup, simple syrup, powder, or base product from an unlicensed distributor, manufacturer, or wholesale dealer shall be liable for the tax levied in subsection (a) of this section on those purchases.
(2) A retailer shall not be subject to this tax if the retailer purchases syrups, simple syrups, powders or base products, or soft drinks from a supplier licensed under § 26-57-909.

(Emphasis added.) Ghegan argued that section 26-57-904(a) violated the Equal Protection Clause of the United States and Arkansas Constitutions because there was no rational basis for taxing soft-drink syrup at a higher rate than bottled soft drinks, powder, or other base products.

Ghegan, a “retailer” or “retail dealer” as defined by section 26-57-902(b)(ll) (Repl. 1997) of the Act, asserted that it had standing under Article 16, Section 13, of the Arkansas Constitution to bring the action because it had been assessed, had paid, and continued to pay the tax set forth in section 26-57-904(a). In contrast, the DFA argued in its motion to dismiss that Ghegan did not have standing because the tax imposed by section 26-57-904(a) specifically applied to distributors, manufacturers, and wholesale dealers, but not to retailers or retail dealers such as Ghegan. The trial court agreed with the DFA and dismissed Ghegan’s complaint without prejudice. This appeal followed.

The sole issue on appeal is whether the trial court erred when it ruled that Ghegan did not have standing under Article 16, Section 13, of the Arkansas Constitution to challenge the constitutionality of section 26-57-904(a) of the Arkansas Soft Drink Tax Act. When reviewing a trial court’s ruling on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Brown v. Arkansas State Heating, Ventilating, Air Conditioning & Refrigeration (HVACR) Licensing Bd., 336 Ark. 34, 984 S.W.2d 402 (1999); Hames v. Cravens, 332 Ark. 437, 966 S.W.2d 244 (1998).

Article 16, Section 13, of the Arkansas Constitution provides that:

Any citizen of any county, city or town may institute suit in behalf of himself and ail others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.

(Emphasis added.) This constitutional provision is self-executing and requires no enabling act or supplemental legislation to make its provisions effective. Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989).

When construing a provision of the Arkansas Constitution, we have said that when the language of the provision is plain and unambiguous, each word must be given its obvious and common meaning, and neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998); Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998). The plain and unambiguous language of Ark. Const, art. 16, § 13, provides that “any” “interested” “citizen” has standing to bring an illegal-exaction case. In McCarroll v. Gregory-Robinson-Speas, Inc., 198 Ark. 235, 129 S.W.2d 254 (1939), we held that a corporation is a “citizen” as used in Article 16, Section 13. Hence, the sole issue we must decide in this case is whether Ghegan is sufficiently “interested” such that it has standing to bring an illegal-exaction case under Article 16, Section 13.

To answer this question, we first turn to our cases establishing the traditional standing requirements. In numerous cases, we have held that a litigant has standing to challenge the constitutionality of a statute if the law is unconstitutional as applied to that particular litigant. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997); Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994); Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991). The general rule is that one must have suffered injury or belong to a class that is prejudiced in order to have standing to challenge the validity of a law. Morrison, supra; Medlock, supra. Stated differently, plaintiffs must show that the questioned act has a prejudicial impact on them. Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Garrigus v. State, 321 Ark. 222, 901 S.W.2d 12 (1995).

We have no hesitancy in saying that Ghegan has asserted sufficient facts to satisfy these traditional standing requirements. First, section 26-57-904(a) is allegedly “unconstitutional as applied” to Ghegan because it must pay a higher price for syrup as opposed to bottled soft drinks, powder, or other base products. Second, Ghegan has “suffered an injury” because it must pay more money for syrup now that the tax has been imposed. Third, Ghegan “belongs to a class that is prejudiced” because retailers who purchase syrup must pay more taxes than retailers who purchase bottled soft drinks, powder, or other base products.

The question then becomes whether Article 16, Section 13, has somehow altered or increased these traditional standing requirements. We have previously distinguished two types of illegal-exaction cases that can arise under Article 16, Section 13. See, e.g., Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997); Pledger v. Featherlite Precast Corp., 308 Ark. 124, 823 S.W.2d 852 (1992). The first type of an illegal-exaction case is the “public-funds” case where the plaintiff contends that public funds generated from tax dollars are being misapplied or illegally spent. See, e.g., Beshear v. Ripling, 292 Ark. 79, 728 S.W.2d 170 (1987) (claiming that tax dollars were spent impermissibly to pay a municipal judge who had usurped his office); Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989) (alleging that public funds were impermissibly being spent on a bond issued for a different purpose).

We have explained that citizens have standing to bring a public-funds case because they have a vested interest in ensuring that the tax money they have contributed to the state treasury is lawfully spent. Nelson v. Berry Petroleum, Co., 242 Ark. 273, 413 S.W.2d 46 (1967); Green v. Jones, 164 Ark. 118, 261 S.W. 43 (1924). Thus, the only standing requirements we have imposed in public-funds cases are that the plaintiff be a citizen and that he or she have contributed tax money to the general treasury. See Nelson, supra; Green, supra. We have not required the plaintiff to trace his or her individual tax contribution to the tax money that is allegedly being spent in an illegal manner, nor have we required the plaintiff to establish a significant tax contribution to the state treasury. Hence, in public-funds cases, we have given the word “interested” as used in Article 16, Section 13, a very broad construction.

The second type of illegal-exaction case, such as the case at hand, is an “illegal-tax” case, where the plaintiff asserts that the tax itself is illegal or contrary to a constitutional or statutory provision. See, e.g., Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997) (claiming that a real-property tax violated Ark. Const, amend. 59); Ragan v. Venhaus, 289 Ark. 266, 711 S.W.2d 467 (1986) (contending that a use tax was imposed in violation of Aric. Const, art. 16, § 11). The parties did not cite, nor could we find, any illegal-tax cases that discuss the standing requirements to bring such an action. The DFA, however, contends that the standing requirements to bring an “illegal tax” illegal-exaction case are more stringent than the standing requirements to bring a “pubic-funds” illegal-exaction case. We, however, can find no such distinction in our cases or the language of Article 16, Section 13.

Furthermore, citing Foxsmith, Inc. v. Coca-Cola Bottling Co., 323 Ark. 13, 912 S.W.2d 923 (1996), the DFA claims that only a taxpayer that is “subject to” or directly required to return and remit the tax under the terms of the statute imposing it has standing to challenge that tax. In particular, the DFA claims that only distributors, manufacturers, or wholesale dealers have standing to challenge section 26-57-904(a) because they are the only entities “subject to” the tax imposed in the language of that section. We disagree with this interpretation of Foxsmith.

The facts of Foxsmith are very similar to the case at hand, but it was not an illegal-exaction case nor did it involve the standing requirements imposed by Article 16, Section 13. As in the case before us today, Coca-Cola, the soft-drink distributor in Foxsmith, submitted an invoice to the soft-drink retailer, Foxsmith, that included an itemized or separate charge for the full amount of the soft-drink tax. Id. Instead of filing an illegal-exaction case, Fox-smith sued Coca-Cola claiming that the charge was prohibited by section 26-57-904(b)(2) of the Soft Drink Act, which provides that a retailer shall not be “subject to” the tax if it purchased the soft drinks from a licensed distributor, such as Coca-Cola. Id. On appeal, we acknowledged that Ark. Code Ann. § 26-57-906(a)(l) (Repl. 1997) required the licensed distributor to file a monthly return and remit the tax to the DFA director on or before the fifteenth day of each month. Id. We also recognized that Soft Drink Tax Regulation—1993-8 C. 2. and a DFA memorandum specifically authorized the licensed distributors to pass on the full amount of the tax to the retailers by including the tax in the cost of the product, or by separately stating the tax on the invoice or document of sale. Id. However, even when the distributors pass on the full amount of the tax to the retailers, they are still required by section 26-57-906(a)(l) to report and remit the tax to the DFA. Id. Thus, we held in Foxsmith that being “subject to” the Act, as mentioned by section 26-57-904(b)(2) means “the one who must file a monthly return and remit the tax to the state.” Id. Because Foxsmith, the retailer, was not required to return or remit the tax even when the licensed distributor passed on the full amount of the tax to it, we held that the retailer was not impermissibly “subject to” the tax as prohibited by section 26-57-904(b)(2). Id.

In sum, in Foxsmith, we merely held that a distributor, manufacturer, or wholesale dealer may pass on the entire amount of the soft-drink tax to the retailer, and more important to this case, that the one who actually pays the tax may be different from the entity that reports and remits that tax to the DFA. Id. In other words, we held that the Soft Drink Tax Act allows the tax “collector” to be different from the tax “payer.” In Foxsmith, we merely harmonized sections 26-57-904 and 26-57-906 of the Soft Drink Tax Act without addressing the standing requirements of Article 16, Section 13.

Although Ghegan is not the tax “collector,” because it is not required to formally remit and return the tax to the DFA under section 26-57-906, it has paid and allegedly will continue to pay the full amount of the soda tax, which the distributor passed on in a separately itemized charge on the sales invoice. Under such circumstances, it is impossible for us to say that Ghegan is not “interested” as that term is used in Article 16, Section 13, and in our cases broadly interpreting this constitutional provision. Instead, we hold that both Ghegan, the one who pays the tax, and its distributor, the one who collects, returns, and remits the tax to the DFA, are sufficiently “interested” to have standing to bring an illegal-exaction case under Article 16, Section 13.

Finally, we note that policy considerations arising under this case also favor reversal. If we adopted the DFA’s narrow interpretation of Article 16, Section 13, only the distributors, manufacturers, and wholesale dealers would have standing to challenge the constitutionality of section 26-57-904(a). These parties, however, are not likely to raise such a challenge because they can pass on the entire soda tax to the retailers. Hence, section 26-57-904(a) would probably go untested because the only group with standing would not have the financial motivation to challenge the provision. For these reasons, we hold that the trial court erred when it ruled that Ghegan did not have standing under Article 16, Section 13, to bring this illegal-exaction action. Accordingly, we reverse the order of dismissal and remand the case for proceedings consistent with this opinion.

Reversed and remanded.

Brown and Thornton, JJ. concur.

Robert L. Brown, Justice,

concurring. I write to emphasize that this opinion is limited to its facts. By that, I mean limited to a fact situation where it is clearly documented in writing that the taxpayer has passed on payment of the precise tax to a third party. I underscore this because at oral argument counsel for Ghegan contended that any party in the sales chain, including the consuming public, would have standing to bring a class action illegal-exaction lawsuit by merely asserting partial or full payment of a tax by virtue of a hike in the price of the goods. That goes way too far in my opinion in determining who is “interested” for purposes of Article 16, Section 13, of the Arkansas Constitution.

I also take issue with the majority’s lament that if a distributor passes on the tax, it has no incentive to contest its legality. I disagree with such an absolute conclusion. Once the $2.00 per gallon tax on soft-drink syrup begins to curtail a distributor’s sales (as compared to the twenty-one cents per gallon for soft drinks produced by powder), the distributor’s incentive to contest the disparity in tax treatment would become very real indeed. I can readily see a distributor’s bringing an equal protection lawsuit under these circumstances, even though it has passed on the cost of the tax to a retailer.

Thornton, J., joins.

       Ghegan also challenged the constitutionality of Ark. Code Ann. § 26-57-907(a) (Repl. 1997), which deals with sales to retailers located in border cities. This particular challenge was not discussed by the parties on appeal.

       We have also recognized third-party standing in cases where the issue would not otherwise be susceptible of judicial review and it appears that the third party is sufficiently interested in the outcome that the interest of the party whose constitutional rights were allegedly deprived would be adequately represented. Monison, supra; Medlock, supra. The appellants, however, do not raise third-party standing in their briefs, nor did they allege it below.


author: Annabelle Clinton Imber, Justice. Robert L. Brown, Justice,

text:
    Donald MALONE v. Linda MALONE
    98-833
    991 S.W.2d 546
    Supreme Court of Arkansas
    Opinion delivered June 3, 1999

      Bramblett & Pratt, by: James M. Pratt, Jr., for appellant.

      Nichole M. Hogue, for appellee.
   Annabelle Clinton Imber, Justice.

This appeal stems from a decision by the chancery court to revive a judg-ment for child-support arrearages more than ten years after the date of its rendition. The chancellor concluded that an acknowledgment of the 1985 judgment contained in an agreed order filed on February 16, 1994 revived the judgment for an additional ten (10) years. For the reasons stated below, we affirm as modified.

The parties were divorced in Florida on August 29, 1975. The divorce decree entered by the Florida circuit court awarded custody of the parties’ two children to Linda Malone and ordered Donald Malone to pay child support in the amount of $40.00 per week. When Mr. Malone faded to make the child-support payments ordered by the Florida circuit court, Mrs. Malone retained private counsel and filed a complaint on December 27, 1984, in Ouachita County Chancery Court, Case No. E-84-440, seeking to collect child-support arrearages owed under the Florida decree. A judgment entered on July 9, 1985, awarded Mrs. Malone the total sum of $12,735.74 for child-support arrearages plus interest. A garnishment on September 10, 1985 produced $134.50. However, the balance of the judgment remained unpaid.

Mr. Malone again failed to pay his child-support obligations in 1986. Mrs. Malone assigned her rights to the Arkansas Office of Child Support Enforcement (OCSE), which instituted a separate action in Ouachita County Chancery Court, Case No. E-86-47, on April 11, 1986. OCSE registered the Florida divorce decree under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). Ark. Stat. Ann. §§ 34-2401 et seq. (1985)(codified at Ark. Code Ann. § 9-14-301 et seq. (1987)). Pursuant to an agreed order entered on June 3, 1986, OCSE was granted judgment for arrearages accrued since the entry of the 1985 judgment in the amount of $1800.00, and Mr. Malone was ordered to continue making child-support payments in the amount of $40.00 per week.

On February 16, 1994, the Ouachita County Chancery Court entered a final order in the OCSE case terminating Mr. Malone’s obligation to pay child support, as both children had reached the age of majority. The order noted that since entry of the June 3, 1986 order Mr. Malone made regular payments through the registry of the court until the youngest child reached majority age in August, 1992. However, based upon an examination of payment records maintained by the clerk, the chancellor found that some payments were not made and Mr. Malone was delinquent in child-support payments in the total amount of $700.00. Mr. Malone was ordered to pay that sum forthwith to the clerk “which payment shall constitute the defendant’s final child-support obligation in this case.” Finally, the last paragraph of the 1994 order provided as follows:

That nothing contained in this order shall effect in any way the previous judgment obtained by the Plaintiff, Linda Malone, against the Defendant, Donald F. Malone, on July 9, 1985, in Ouachita County Chancery, case number E-84-440, for child support arrearages under the Florida decree.

On April 25, 1996, OCSE filed a petition for scire facias in Case No. E-86-47-1, and on May i, 1996 OCSE filed a motion to consolidate Case Nos. E-86-47-1 and E-84-440-1. On June 3, 1996, OCSE filed a petition for revivor of judgment in Case No. E-84-440-1. The parties stipulated to the facts at issue and a final hearing was held on August 12, 1997. By order filed November 25, 1997, the chancellor found that the last paragraph of the agreed order entered February 16, 1994 in Case E-86-47 was an acknowledgment of the 1985 judgment by Mr. Malone. Applying the law as it relates to the acknowledgment of debts, the chancellor concluded that nothing in the 1994 order rebutted the presumption that Mr. Malone intended to pay the judgment. Based upon this conclusion, the chancellor held that the judgment was revived to the extent that Mrs. Malone was entitled to pursue collection of the 1985 judgment for ten years commencing from February 16, 1994. Mr. Malone appeals the chancellor’s order, asserting that the petition for scire facias was fataily late and any action on the 1985 judgment is now barred.

OCSE filed both petitions, the petition for scire facias in Case No. E-86-47-1 and the petition for revivor of judgment in Case No. E-84-440-1, pursuant to Ark. Code Ann. § 16-65-501 (1987). Section 16-65-501 provides in pertinent part that:

(a) The plaintiff or his legal representatives may, at any time before the expiration of the lien on any judgment, sue out a scire facias to revive the judgment.
* * *
(f) No scire facias to revive a judgment shall be issued except within ten years from the date of the rendition of the judgment; or if the judgment shall have been previously revived, then within ten years from the order of revivor.

(Emphasis added.) A writ of scire facias must be sued out prior to the expiration of the judgment. See Burton v. Bank of Tuckerman, 276 Ark. 504, 637 S.W.2d 577 (1982); General Am. Life Ins. Co. v. Cox, 215 Ark. 860, 223 S.W.2d 775 (1949). The ten-year limitations period begins to run from the date of the rendition of the judgment. See Ark. Code Ann. § 16-65-501.

The judgment for accrued child-support arrearages was entered in 1985. The petition for scire facias or revivor of judgment was not filed by OCSE until 1996. Because OCSE did not sue out a scire facias to revive the 1985 judgment within ten years from the date of its rendition, we conclude that no scire facias to revive the judgment could be issued and revival of the judgment was barred pursuant to Ark. Code Ann. § 16-65-501. See Burton, supra.

Likewise, actions on all judgments must be commenced within ten (10) years after the cause of action accrues. Ark. Code Ann. § 16-56-114 (1987). A cause of action on a judgment accrues on the date the judgment is rendered. A. Karcher Candy Co. v. Hopkins, 211 Ark. 810, 202 S.W.2d 588 (1947). This statute of limitations for actions on judgments may be tolled when payment is made on the judgment, thereby commencing a new ten-year limitations period as of the date of the payment. Pepin v. Hoover, 205 Ark. 251, 168 S.W.2d 390 (1943). The judgment here was rendered on July 9, 1985. The only proven payment on the 1985 judgment was a garnishment on September 10, 1985, which thereby commenced a new ten-year limitations period as of September 10, 1985. As previously stated, Mrs. Malone did not commence an action on the 1985 judgment until 1996, more than ten years after the last payment date, September 10, 1985. Thus, enforcement of the judgment was barred under Ark. Code Ann. § 16-56-114 as well.

The chancellor decided that an acknowledgment of the 1985 judgment contained in the 1994 order revived the statute of limitations of the judgment for an additional ten years. In making this decision, the chancellor reasoned that a debt may be revived by a subsequent acknowledgment. While both parties have briefed this issue, we must reject the chancellor’s reasoning because the revival of judgments is governed by section 16-65-501 and actions on judgments are governed by section 16-56-114. Neither of those statutes, nor the case law interpreting them, provides for revival of a judgment or the statute of limitations for actions on a judgment by a subsequent acknowledgment of debt.

Notwithstanding the above analysis, we will affirm the trial court where it reaches the right result, even though it may have announced the wrong reason. Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998); Marine Servs. Unlimited, Inc. v. Rake, 323 Ark. 757, 918 S.W.2d 132 (1996). Accordingly, we may consider statutory authority which would support affirmance, though not cited by the parties.

In July of 1995 the legislature passed Act 1184 of 1995, which amended Ark. Code Ann. § 9-14-235 (Repl. 1991), so as to allow collection on child-support judgments in a specified manner until such time as the judgments have been satisfied. Specifically, Ark. Code Ann. § 9-14-235, as amended, provides:

(a) If a child support arrearage or judgment exists at the time when all children entitled to support reach majority, are emancipated, or die, or when the obligor’s current duty to pay support otherwise ceases, the obligor shall continue to pay an amount equal to the court-ordered child support, or an amount to be
determined by a court based upon the application of guidelines for child support under the family support chart, until such time as the child support arrearage or judgment has been satisfied.
(f) The purpose of this section is to allow the enforcement and collection of child support arrearages and judgments after the obligor’s duty to pay ceases.

The legislature placed no statute of limitations on the continued collection of child- support judgments in the manner specified by section 9-14-235, thereby creating a direct conflict with section 16-65-114, which mandates a ten-year limitations period for actions upon all judgments.

Two major principles are controlling in resolving which statute governs the enforcement of child-support judgments. First, when interpreting statutes, the rule is settled that a general statute must yield when there is a specific statute involving the particular matter. Village Market Inc. v. State Farm Gen. Ins. Co., 334 Ark. 227, 975 S.W.2d 86 (1998); Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997). Second, it is the policy of the law to use the longer limitations period where the issue is “doubtful.” Adams v. Arthur, 333 Ark. 534, 969 S.W.2d 598 (1998); Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968).

Section 9-14-235, as amended, applies specifically to child-support judgments and imposes no limitations period on the enforcement of those judgments, so long as collection efforts are limited to those methods specified in the statute. We therefore conclude that section 9-14-235, as amended, governs actions to collect on child-support judgments to the extent that such actions were not yet barred at the time section 9-14-235, as amended, became effective and to the extent that such actions seek only to require the obligor, whose current duty to pay support has ceased, to continue making regular court-ordered child-support payments until such time as the judgment is satisfied.

As previously stated, a new ten-year statute of limitations period commenced on the 1985 judgment by virtue of the September 10, 1985 garnishment. Pursuant to section 16-56-114, an action on the 1985 judgment could be commenced at any time before September 10, 1995. Thus, at the time section 9-14-235, as amended, became effective, that is on July 28, 1995, action on the 1985 judgment was not yet barred by section 16-56-114. Accordingly, we hold that section 9-14-235, as amended, governs the 1985 judgment, so as to allow for its enforcement and collection in the manner provided by that statute until the judgment is folly satisfied. Under these circumstances, section 9-14-235 requires that Mr. Malone continue making regular court-ordered child-support payments until the judgment is satisfied. We therefore affirm the trial court’s order that Ms. Malone may pursue collection on the 1985 judgment, but modify that order to limit the manner of collection to those methods specified in Ark. Code Ann. § 9-14-235.

Affirmed as modified.

Brown, J. concurs.

Robert L. Brown, Justice,

concurring. I agree with the result reached by the majority. I do not see, however, the need to rely on the September 10, 1985 garnishment to protect the obligation to pay under the 1985 judgment. My reason for this is that Ark. Code Ann. § 9-14-235 (Repl. 1991), as enacted by Act 507 of 1989, makes it clear that the ten-year statute of limitations for revivor of judgments was done away with for purposes of judgments for child-support arrearages as early as 1989, and not in 1995, as the majority concludes.

Act 507 of 1989 supports this conclusion in clear terms:
(a) All persons under a court order to pay child support shall continue to pay an amount equal to the child support amount after all children entitled to support reach majority, are emancipated, die, or when the obligor’s current duty to pay child support otherwise ceases if a judgment or child support arrearage exists until such time as the judgment or arrearage has been satisfied.

Ark. Code Ann. § 9-14-235(a) (Repl. 1991). The repealer clause in Act 507, which repealed all inconsistent laws, underscored the point that a limitations period on the obligation to pay no longer existed.

Because the limitations period for an obligation to pay was repealed by Act 507 within ten years of the September 1985 child-support judgment at issue, whether that judgment was revived for another ten years is irrelevant. Moreover, Act 1184 of 1995 made it clear that the continuing obligation to pay could be enforced by court actions even where collection mechanisms had not previously been put in place. See Ark. Code Ann. § 9—14-235 (i") (Repl. 1998) (removing the prohibition on enforcement by court action). As remedial legislation, Act 1184 can be applied retroactively to the arrearage judgment at issue. See Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981); Harrison v. Matthews, 235 Ark. 915, 312 S.W.2d 704 (1962); see also City of Fayetteville v. Bibb, 30 Ark. App. 31, 781 S.W.2d 493 (1989).

Hence, my principal point of departure from the majority opinion is that I conclude the ten-year statute of limitation on the obligation to pay for child-support judgments was repealed in 1989 as opposed to 1995. That six-year time differential can have considerable consequences for a party enforcing a child-support judgment who is subject to a limitations defense during that period. For this reason, I concur.

       Although a tax interception of Mr. Malone’s 1988 income tax refund produced $253.00 in 1989, no evidence was introduced showing that this amount was applied to the 1985 judgment.

       With regard to the assertion by the concurrence that we should rely upon Act 507 of 1989, that Act provided specifically that “ [Enforcement through court proceedings of the continued payment of the support obligation amount to collect child support judgements and arrearages is prohibited.” Accordingly, Act 507 does not apply to Mrs. Malone’s efforts in this case to enforce payment of a judgment for child-support arrearages through court proceedings.


text:
    David Bruce JONES v. STATE of Arkansas
    CR 99-320
    992 S.W.2d 85
    Supreme Court of Arkansas
    Opinion delivered June 2, 1999

      Larry W. Horton, for appellant.
    No response.
   Per Curiam.

On March 12, 1999, the record in this case was tendered to the clerk’s office, but it was not accepted because the time for filing had exceeded seven months from the date of the entry of judgment. On March 19, 1999, counsel filed a motion for rule on the clerk and again tendered the record to the clerk’s office, although the time for filing had lapsed. In his motion, appellant stated the reason the record was tendered late was that the Hot Spring County Circuit Clerk was unable to prepare the transcript in time for proper filing.

This court has held that it will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Further, we have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion was denied.

Appellant’s attorney now files another motion for rule on the clerk in which he admits that the record was tendered late due to a mistake on his part. We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Tarry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


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

text:
    David McGREW v. STATE of Arkansas
    CR 98-426
    991 S.W.2d 558
    Supreme Court of Arkansas
    Opinion delivered June 10, 1999

      W. Hunter Williams, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   W. H.“Dub” Arnold, Chief Justice.

The appellant, David McGrew, was found guilty of misdemeanor sexual misconduct involving a minor and was sentenced to ninety days in the Mississippi County jad and fined $500.00. On appeal, McGrew challenges (1) the denial of his motion to dismiss, based upon his prosecution for a misdemeanor offense more than one year after the commission of the offense, (2) the admission of rebuttal testimony, and (3) the sufficiency of the evidence. We accepted certification of this case from the Court of Appeals in order to resolve an issue of first impression, specifically, the application of Ark. Code Ann. section 5-l-109(f). Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule l-2(b)(6) (1998). Holding that the State failed to timely prosecute the appellant pursuant to Ark. Code Ann. sections 5-l-109(b)(3) and (f), we reverse appellant’s conviction.

McGrew was arrested in Manila, Arkansas, on September 27, 1995, pursuant to a warrant of arrest issued by the Municipal Court Clerk. Following a probable cause hearing on September 29, 1995, the Court issued an affidavit of probable cause, charging appellant with the felony of sexual abuse in the first degree. Significantly, the prosecuting attorney never filed an information related to the felony offense. Almost one year later, on August 30, 1996, McGrew was issued a citation in Manila, Arkansas, charging him with misdemeanor sexual misconduct, arising out of the same conduct for which he was arrested in September, 1995. At a trial before the Blytheville Municipal Court on September 25, 1996, McGrew was found guilty of misdemeanor sexual misconduct.

Subsequently, McGrew appealed to the Mississippi County Circuit Court and filed a motion to dismiss, arguing that his prosecution for the misdemeanor offense violated the statute of limitations set forth in Ark. Code Ann. section 5-1-109 (b)(3). At trial, the victim testified that the acts upon which the charge was based occurred between January and April of 1995. However, the circuit court denied appellant’s motion to dismiss. On September 11, 1997, this court denied, without prejudice, appellant’s petitions for writ of prohibition and writ of certiorari. From his conviction for misdemeanor sexual misconduct involving a minor, comes the instant appeal.

Section 5-1-109 statute of limitations

Appellant’s first point on appeal contends that his prosecution for the misdemeanor offense was barred by the one-year statute of limitations provided by Ark. Code Ann. section 5-l-109(b)(3). On the other hand, the State argues that the limitation period for the misdemeanor was tolled while the felony prosecution was pending. In support of its position, the State relies on section 5-1-109(g)(2), which provides that the period of limitation does not run during any period when a prosecution against the accused for the same conduct is pending in this state.

At issue in the instant appeal is the construction of Ark. Code Ann. section 5-l-109(f), which provides that:

A prosecution is commenced when an arrest warrant or other process is issued based on an indictment, information, or other charging instrument, provided that such warrant or process is sought to be executed without unreasonable delay.

(Emphasis added.) Appellant suggests that because the State failed to file an information relating to the felony arrest warrant, section 5-l-109(f) dictates that no felony prosecution was ever commenced. Consequently, the statute of limitations period could not be tolled under section 5-l-109(g)(2). We agree.

In construing statutes, this court will give effect to the legislature’s intent, making use of common sense and giving the words their usual and ordinary meaning. Reed v. State, 330 Ark. 645, 649, 957 S.W.2d 174, 176 (1997) (citing Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993)). Moreover, a statute’s commentary, although not controlling over the statute’s clear language, is a highly persuasive aid to construing that statute. Id. The Original Commentary to section 5-1-109 (Repl. 1995), states that:

Under prior law a prosecution was commenced when an indictment was found or an information or other charging instrument was filed. Subsection (f) changes this by running the initiation of a prosecution from the issuance of an arrest warrant. . . . The term “other charging instrument” is intended to encompass affidavit complaints, citations, summons, and similar instruments which are presently or may hereafter be employed in non-felony prosecutions.

(Emphasis added.)

Here, the prosecutor failed to file an information relating to the felony charge. Although the State suggests that appellant’s prosecution was commenced with the issuance of the felony arrest warrant, which was based upon an affidavit complaint, we note that the municipal court may not commence a felony prosecution. Felonies must be charged by either grand jury indictment or by information filed by the prosecuting attorney. See Archer v. Benton County Circuit Court, 316 Ark. 477, 480, 872 S.W.2d 397, 399 (1994) (citing Ark. Const. art. 2, § 8; amend. 21; Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984)). In fight of the foregoing, we hold that the trial court erred by denying appellant’s motion to dismiss pursuant to the section 5-1-109 statute of limitations. In fight of our holding, we need not reach the merits of appellant’s remaining arguments.

Reversed.


text:
    Kimberly Anne Tadlock BRUNER v. Charlie E. TADLOCK and Loretta G. Tadlock
    99-8
    991 S.W.2d 600
    Supreme Court of Arkansas
    Opinion delivered June 10, 1999

      Bethell & Cromwell PLC, by: Jan Rose Cromwell, for appellant.

      Bob Keeter, for appellees.
   Tom Glaze, Justice.

Appellees Charlie and Loretta Tad-lock are the paternal grandparents of Brittney, who was five years old when her father, Michael, died on August 15, 1997. Appellant Kimberly Tadlock, mother of Brittney, was married to but was estranged from Michael at the time of his death. On September 1, 1997, Kimberly, who had been residing in Sevier County, moved to Poteau, Oklahoma with Brittney. She later married Dean Bruner, and at some stage, she, Dean, and Brittney established their residence in Tulsa, Oklahoma. Dissatisfied with not being able to visit with Brittney after her removal to Oklahoma, Charlie and Loretta filed a complaint in the Sevier County Chancery Court on December 1, 1997, and requested that a visitation schedule be established so they could maintain a relationship with Brittney. On January 5, 1998, Kimberly filed a motion to dismiss the Tadlocks’ complaint seeking grandparents’ visitation rights, and asserted that the chancery court lacked subject-matter and personal jurisdiction and exercised improper venue. In short, Kimberly cited Ark. Code Ann. § 16-60-116 (1987), and contended that, to obtain visitation rights, the Tadlocks must file their complaint in Oklahoma where Kimberly and Brittney now reside.

The chancery court held a hearing whereby it ruled the court had jurisdiction. Later, after hearing testimony on the merits, the chancellor decided it was in Brittney’s best interest and welfare to have visitation scheduled with her paternal grandparents, the Tadlocks. The trial court entered two separate orders deciding these issues on September 10, 1998. In her appeal, Kimberly does not challenge the chancellor’s decision establishing visitation periods for the Tadlocks and their granddaughter, Brittney. Instead, she limits her point for reversal only to whether the chancellor erred in finding that his court had jurisdiction to award grandparents’ visitation rights in these circumstances.

In concluding it had jurisdiction, the chancery court referred to the Uniform Child Custody Jurisdiction Act (UCCJA) (Ark. Code Ann. §§ 9-13-201 -227 (Repl. 1998)), particularly § 9-13-202 and 203, which provide for custody and visitation determinations when contestants claiming rights are located in different states. Simply put, the chancellor, utilizing the UCCJA, determined that his court had jurisdiction because Arkansas was Brittney’s home state since she had resided here for more than six months preceding the Tadlocks’ commencement of this suit seeking visitation. See Ark. Code Ann. § 9-13-203(a)(l)(i) (A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if this state is the home state of the child at the time of commencement of the proceeding). Under the UCCJA, “home state,” in relevant part, is defined as the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months. We believe the chancellor correctly ruled that he had jurisdiction under the UCCJA, but we also hold that the trial court has jurisdiction under the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A (1989 and Supp. 1999).

Initially, we note that the Tadlocks filed their suit seeking visitation by relying on Ark. Code Ann. § 9-13-103(a)(l)(A) (Repl. 1998). That statute empowers a chancery court to grant grandparents visitation rights with their grandchildren where the child’s parents’ marital relationship has been severed by death, divorce, or legal separation. Section 9-13-103 (a) (2) provides such visitation rights may only be granted when the court determines visitation would be in the child’s best interest and welfare.

While acknowledging § 9-13-103 affords the Tadlocks the right to bring an independent action for visitation after their son, Michael, died, Kimberly argues that neither the UCCJA nor the PKPA was intended to grant grandparents such a remedy against an out-of-state parent like Kimberly. Kimberly presents no'cases to support her argument, and our research reveals none. However, we believe the plain language in both the UCCJA and the PKPA supports upholding the Tadlocks’ action against Kimberly.

In this respect, and as mentioned previously, § 9-13-203(a) of the UCCJA provides that a court in this state has jurisdiction to make a child custody determination by an initial decree, and Ark. Code Ann. § 9-13-202(2) (Repl. 1998) further provides that “custody determination” means a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person. (Emphasis added.) Moreover, a “contestant” in UCCJA cases is defined to mean a person, including a parent, who claims a right to custody or visitation rights with respect to a child. Ark. Code Ann. § 9-13-202(1) (Repl. 1988) (emphasis added).

In addressing whether the UCCJA is intended to establish jurisdiction in original visitation actions as the one before us, it is helpful to consider the PKPA. As we recently stated in Hudson v. Purifoy, 337 Ark. 146, 986 S.W.2d 870 (1999), the UCCJA governs state conflicts over child-custody jurisdiction, but where the UCCJA and PKPA conflict, the PKPA controls. As is the case with the UCCJA, the PKPA applies to all interstate “custody determinations,” which include disputes regarding visitation. See 28 U.S.C. § 1738A(b)(3) (1989); see also Jeff Atkinson, Modern Child Custody Practice § 3.10, at 125-126 (1986). The author of the Modern Child Custody Practice treatise summarized the purposes of the UCCJA and the PKPA as follows:

Both acts are designed to serve several purposes: to promote cooperation between states, to avoid relitigation and conflicting custody orders, to facilitate interstate enforcement of custody orders, to deter child abductions and improper retention of children, and to promote uniformity in jurisdictional laws so that custody and visitation may be determined in the state which can best decide the interest of the child. Id. at 105. (Emphasis added.)

In November 1998, the Congress enacted Public Law No. 105-374, whereby it added in section 1 language that explicitly provides that the PKPA covers initial visitation determinations, and inserted language to clarify that a “contestant” under the Act means both a parent or grandparent who claims a right to custody or visitation with a child. See U.S.C.A. § 1738A(a) and (b)(2), and (9) (1989 and Supp. 1999). Consistent with the statutory language of the PKPA as amended, Congress’ members intended to make it clear that, by enacting Public Law No. 105-374, the full faith and credit law includes visitation orders. For example, Senator Biden recorded that, in a narrow sense, Public Law No. 105-374 does nothing different than current federal law, but by making that law (PKPA) more explicit, it hopefully will eliminate the hassles, obstacles, and delays that too often confront those who have valid visitation orders and are asking only that federal law be followed. See 144 Cong. Rec. 151, S12941 (daily ed. Oct. 21, 1998); see also Brock v. Pierce County, 476 U.S. 253, 263 (1986) (Court recognized that statements by individual legislators should not be given controlling effect, but when they are consistent with the statutory language and other legislative history, they provide evidence of Congress’ intent). In sum, we interpret both the UCCJA and the PKPA to provide the Sevier County Chancery Court with the authority and jurisdiction to award the Tadlocks visitation rights with Brittney because Brittney’s home state under those Acts is Arkansas.

At this point, we note that, even if we had interpreted the UCCJA and the original version of the PKPA not to include initial visitation orders, Kimberly’s argument would still fail. As discussed above, the PKPA, as amended by Public Law No. 105-374, now very specifically provides that initial visitation orders are obtainable and enforceable under the Act. While Public Law No. 105-374 was enacted about two months after the Tadlocks obtained their visitation orders, the law is remedial and should be given a retrospective effect whenever such seems to have been the intention of the Legislature. Barnett v. Arkansas Transp. Co., 303 Ark. 491, 798 S.W.2d 79 (1990). In Barnett, the court repeated the settled rule as follows:

The rule by which statutes are construed to operate prospectively does not ordinarily apply to procedural or remedial legislation. ‘The strict rule of construction contended for does not apply to remedial statutes which do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation. . .’ Id. at 497, 798 S.W.2d at 83 (citing City of Fayetteville v. Bibb, 30 Ark. App. 31, 781 S.W.2d 493 (1989) (quoting Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962)); see also Sutherland Stat. Const. § 60.1 (5th ed. Rev. 1992) (many statutory issues relating to family law are considered remedial).

In the instant case, Public Law No. 105-374 does not diminish or disturb Kimberly’s custody rights of Brittney, but merely assures the Tadlocks a remedy to enforce their rights of visitation with Brittney which the Tadlocks were awarded under § 9-13-103. In other words, the Tadlocks, as grandparents who have been granted visitation rights with their granddaughter, will be assured that their visitation order will be afforded full faith and credit even though the custodial parent removed her child to another state.

Finally, we address Kimberly’s argument that the Sevier County Chancery Court’s order granting the Tadlocks visitation must fail because the court had no personal jurisdiction over her. As pointed out in Dr. Robert A. Leflar’s treatise, American Conflicts of Law, “Relationships with Children,” § 243, at 679 (4th ed. 1986), the UCCJA provides for notice and an opportunity to be heard, but does not require “technical personal jurisdiction, on the traditional theory that custody determinations, as distinguished from support actions, are proceedings in rem or proceedings affecting status.” The UCCJA’s and the PKPA’s basic jurisdictional concept is that the child’s “home state” should have preeminent authority to determine custody and visitation and that authority should be respected elsewhere. Id. at 677.

Dr. Leflar’s treatise, however, cites May v. Anderson, 345 U.S. 528 (1953), for the proposition that a parent’s legally protectible interest in his or her child’s custody has enough importance that the due process clause may not permit the interest to be cut off by a court which has no jurisdiction over the objecting parent. Id. at 679. Leflar quickly adds, though, that the development of long-arm jurisdiction in family matters solves the problem raised by May v. Anderson in some cases, but not all. Id. at 680. He further states that, in spite of the adoption of the PKPA, a definitive solution awaits a ruling by the United States Supreme Court. Id. Most telling, we think, is Leflar’s added remark that “Meanwhile the exercise of custody jurisdiction without personal jurisdiction over a nonresident parent remains vulnerable in theory, though less so in practice.” Id. (Emphasis added.)

Whatever the outcome of the personal-jurisdiction problem attributed to the May v. Anderson decision, we conclude Arkansas’s long-arm statute, which includes matters concerning domestic relations, see Bunker v. Bunker, 261 Ark. 851, 552 S.W.2d 641 (1977), provides for personal jurisdiction over Kimberly even though she has removed Brittney from Arkansas to reside in another state. See also Ark. Code Ann. § 16-58-120 (Supp. 1997) (Any cause of action arising out of acts done in this state by an individual in this state may be sued in this state, although the defendant has left the state). As stated in Bunker, the basic test in determining if Arkansas retains jurisdiction over a nonresident defendant is whether the defendant’s contacts within the state were such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. 261 Ark. at 853, 552 S.W.2d at 642.

Here, Kimberly’s matrimonial domicile was in Arkansas, where thereafter she and Michael lived until he died. During the more than five years Kimberly, Michael, and Brittney resided in Arkansas, Brittney had a close relationship with her grandparents, and Brittney also had a relationship with other members of her father’s extended family. Kimberly’s and Brittney’s family and personal contacts with Arkansas ended only when Kimberly decided after Michael’s death to live in Oklahoma. Considering these important contacts, we see no good reason for not recognizing Arkansas’s personal jurisdiction over Kimberly in this case.

In conclusion, we hold the Sevier County Chancery Court had subject-matter and in rem jurisdiction of this visitation proceeding under the express terms of the UCCJA and PKPA, and in addition, if required by the due process clause, the court had personal jurisdiction over Kimberly even though she moved her residence to Oklahoma two weeks after Michael’s death and three months prior to the Tadlocks filing this case. Accordingly, we affirm.

       While Kimberly also mentioned the trial court’s lack of venue in her motion to dismiss, that issue was not specifically ruled on below, perhaps because she relied on her jurisdictional issues and arguments. Since Kimberly’s last residence in this state was in Sevier County, there is little doubt that, providing Arkansas had jurisdiction of this matter, venue rested in that county. See Ark. Code Ann. § 16-60-116 (1987).


author: Donald L. Corbin, Justice.

text:
    NEW MAUMELLE HARBOR, a/k/a Jolly Rogers Marina v. Mac ROCHELLE
    98-1485
    991 S.W.2d 552
    Supreme Court of Arkansas
    Opinion delivered June 10, 1999

      Barber, McCaskill, Jones &Hale, P.A., by: R. Kenny McCulloch and Michelle B. Miller.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Julia L. Bus-field., for appellee.
   Donald L. Corbin, Justice.

This is a negligence case involving a fire on a boat dock. Appellant New Maumelle Harbor, a/k/a Jolly Rogers Marina, appeals the order of the Pulaski County Circuit Court granting summary judgment in favor of Appellee Mac Rochelle. We have jurisdiction of this tort case pursuant to Ark. Sup. Ct. R. l-2(g). On appeal, Appellant argues that the trial court erred in granting summary judgmerit because there are material issues of fact yet to be resolved. We find merit to Appellant’s argument, and we reverse.

On or about January 30, 1998, a fire occurred at the Jolly Rogers Marina. On that same date, Appellee had entered into a rental agreement with the marina to store his boat in slip number twelve of boat dock number three. Appellant alleged in its complaint that the fire started in slip twelve of boat dock number three as a direct result of Appellee’s negligent use of a battery charger. Specifically, Appellant alleged that Appellee (1) operated the battery charger in an improper manner; (2) left the charger unattended for an extended period of time; and (3) failed to use ordinary care for the safety and protection of Appellant’s property. Appellant sought damages in excess of $100,000.

Appellee filed a motion for summary judgment, asserting that Appellant’s claim against him was based only on speculation and conjecture. Particularly, Appellee asserted that Appellant’s expert witness, insurance investigator Gerald Alsup, had determined only possible, rather than probable, causes of the fire. Appellee asserted further that Alsup’s sworn statements revealed that he had no reason to believe that any act or omission by Appellee caused the fire. Appellee also relied on statements from Roger Nesuda, the owner of the marina, and Carlton C. Wright, another investigator, in which they indicated a lack of knowledge as to the cause and origin of the fire. Nesuda stated that he had no knowledge of what started the fire other than the opinion of Alsup. Wright stated that there was not enough evidence available to determine where the fire started or what started the fire; however, he agreed with Alsup that the fire started in the eastern two-thirds of dock number three. The trial court granted summary judgment, and this appeal followed.

This court has frequently stated the guidelines for reviewing the granting of a motion for summary judgment:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.

Sublett v. Hipps, 330 Ark. 58, 62, 952 S.W.2d 140, 142 (1997) (quoting Milam v. Bank of Cabot, 327 Ark. 256, 261-62, 937 S.W.2d 653, 656 (1997)). Once a moving party establishes prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a genuine issue of material fact. Id.

Negligence is defined as the failure to do something that a reasonably careful person would do, or the doing of something that a reasonably careful person would not do, under the circumstances. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998). To establish a. prima facie case of negligence, a plaintiff must prove that he sustained damages, that the defendant was negligent, and that such negligence was a proximate cause of the damages. Sublett, 330 Ark. 58, 952 S.W.2d 140. “To constitute negligence, an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.” Wallace, 331 Ark. at 67, 961 S.W.2d at 715 (citing AMI Civil 3rd 301). It is not necessary that the actor foresee the particular injury that occurred, only that the actor reasonably foresee an appreciable risk of harm to others. Id. Proximate cause may be shown from circumstantial evidence, and “such evidence is sufficient to show proximate cause if the facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred.” Id. (citing White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992)). The standard to be applied in deciding whether summary judgment is appropriate is whether there is evidence sufficient to raise an issue of fact on the claim. Id. Thus, we need only decide if the pleadings and evidentiary documents raise issues of fact concerning whether Appellee’s acts or omissions were negligent under the circumstances and, if so, whether such negligence by Appellee was a proximate cause of the damages.

We conclude that the pleadings and the evidentiary items demonstrate that there are issues of fact regarding whether Appellee was negligent. Appellee admitted in his deposition that he used a battery charger on his boat on the date of the accident. The instruction manual for the battery charger provides that a marine battery installed in a boat must be removed and charged on shore; that the charger should always be operated in an open, well-ventilated area (as batteries generate explosive gases); that the charger should only be operated in the “manual” setting if the charging process is checked frequently, rather than left alone; and that the use of an extension cord with the charger is not recommended. Appellee stated that on the date of the fire, he hooked up the battery charger using an extension cord that he had found in the boat slip. He stated that he left the charger unattended while he went home; he stated that he was not sure when he intended to return to his boat. He also admitted that had not read the instruction manual prior to hooking up the charger to his boat. Additionally, Appellee gave conflicting statements on the issue of proper ventilation: Alsup’s report reflects that Appellee told him that he closed the lid on the battery compartment, while Appellee states in his deposition that he is positive that the lid was open.

Wright stated that he had previously investigated a case where a battery charger started a fire. In that prior case, the battery charger was hooked up to a boat that was located in the owner’s driveway. Due to the location of the battery charger near the fuel tanks, the boat caught fire and burned. He stated that even if a charger is operating normally, it will periodically cycle on and off, during which process it can produce a spark. He stated that if there is a spark and the presence of gas fumes in the area, the spark can ignite the fumes. He also stated that some batteries emit explosive gases when they are being charged. He stated that based upon the information supplied to him by Appellee, it is possible that the gasoline in Appellee’s boat could have been ignited by the battery charger, thus starting the fire.

Alsup’s report reflects that he conducted an investigation of the scene on February 1, 1998, two days after the fire. He examined the remains of dock number three and numerous boats that had been burned in the fire. From his investigation, Alsup concluded that the fire originated in slip number twelve, the slip where Appellee kept his boat. Alsup’s report reflects in pertinent part:

DETERMINATION OF ORIGIN AND CAUSE
Assessment of the scene established the fire originating along the south side of dock three in the duplex slip area designated as slips twelve and fourteen. Remaining patterns show the fire progressing from the area of slip twelve, which was occupied at the time of the fire by a fifteen and one-halffeet long fiberglass boat powered by a ninety horsepower Yamaha outboard motor and belonging to Mr. Mac Rochelle. Mr. Rochelle provided information that the boat was pulled into the slip on the day of the fire and he had used a found extension cord to connect a battery charger, which would have been in operation when the fire occurred. Pattern analysis proved the fire originating in the general area of the boat and eliminated causes common to the area, hence, establishing an introduced form of ignition to the area, e.g., the battery charger or found extension cord. A thorough and complete search of the marina and surrounding waters failed to produce debris or remains identifiable as Mr. Rochelle’s boat. In all probability, floatation incorporated in the boat’s design allowed it to float away from the dock undetected, into deeper water, where it later sank. As a result, neither the boat nor evidence it may have contained were available for examination.
Physical reconstruction and inspection of adjacent boats and the remains of the dock in the area did, nonetheless, point to Mr. Rochelle’s boat as the conflagration’s source. Given the physical evidence, the information regarding the status of Mr. Rochelle’s boat, the corroborating patterns, and the observations of witnesses; examined against other hypotheses, it is most probable that the failure of the battery charger in use or the extension cord served to initiate the event. No other known sources of ignition were in the area of fire origination, and an incendiary cause for the event was not indicated by either evidence or witness information. [Emphasis added.]

This report indicates that Appellee’s boat was the source of the fire, and that the most probable, not possible, cause of the fire was the failure of the battery charger or the extension cord that Appellee hooked up to his boat and left unattended on the night of the fire.

Alsup’s determination of the probable cause and origin of the fire, coupled with the foregoing testimony from Wright and Appellee’s admissions that he did not read the instruction manual prior to using the battery charger and that he operated the charger inconsistently with the manner provided in the manual, raises issues of fact regarding whether Appellee’s acts or omissions were negligent under the circumstances and, if so, whether such negligence was a proximate cause of Appellant’s damages. Accordingly, summary judgment was not warranted as a matter of law. We thus reverse the ruling of the trial court and remand the case for further proceedings consistent with this opinion.