author: Tom Glaze, Justice.

text:
    Mike DAVIS v. ROSS PRODUCTION COMPANY
    95-479
    910 S.W.2d 209
    Supreme Court of Arkansas
    Opinion delivered November 20, 1995

      Smith, Stroud, McClerkin, Dunn & Nutter, by: Charles A. Morgan, for appellant.

      Crumpler, O’Connor & Wynne, by: William J. Wynne, for appellee.
   Tom Glaze, Justice.

This case involves partial cancellation of an oil and gas lease. On January 20, 1979, Butler-Johnson, Inc., obtained oil and gas leases in lands located in Miller County and described as follows:

Township 17 South. Range 28 West
Section 24:
The East Half of the Southeast Quarter (E 1/2 SE 14) and the Southeast Quarter of the Northeast Quarter (SE 1/4 NE 1/4) and comprising in the aggregate 120 acres, more or less[.]

The lands described above are known as the Fouke B Lease and are comprised of three quarter-quarter sections of forty acres each. Subsequently, Butler-Johnson assigned its interest in the Fouke B Lease to appellee Ross Production Company. Additionally, Ross Production acquired leases in contiguous lands known as the Fouke Estate Lease. Together, the Fouke Estate Lease and the Fouke B Lease comprised 600 acres of Section 24. The oil and gas in the lands covered by the Fouke Estate Lease and the Fouke B Lease are owned by the same lessors whose respective undivided interests are the same proportions throughout the entire leased premises. However, only the Fouke B Lease is at issue here.

Subsequent to obtaining the assignment, Ross Production drilled three wells under the Fouke B Lease on each of the three governmental quarter-quarter sections. In April 1982, Ross Production drilled the B-l well in the southeast quarter of the southeast quarter (SE 1/4 SE 1/4). Because the well was not commercially productive, the B-l well was plugged and abandoned that same month as required by the Arkansas Oil & Gas Commission. On November 13, 1982, Ross Production completed the B-2 well which was a commercial producer of oil and which continues to produce. The B-2 well is located in the northeast quarter of the southeast quarter (NE 1/4 SE 1/4), and drains the Paluxy Formation. Lastly, Ross drilled the B-3 well in the Southeast quarter of the northeast quarter (SE 1/4 NE 1/4). This third well was not commercially productive and was abandoned in December 1984. Following the completion of the producing B-2 well in 1982, Ross Production applied to the Commission pursuant to regulations for the establishment of field rules applicable to the Paluxy Formation. After a public hearing on August 24,1982, the rules promulgated provided that areas contiguous with the south half of Section 24 overlying the Paluxy Formation are designated as the Boggy Creek Field, and established that forty-acre drilling units be comprised of governmental quarter-quarter sections for wells completed within the Paluxy Formation. Further, the rules provided that wells be located at no less than 280 feet from the boundary lines of each unit.

Ross Production drilled a total of twelve wells within the Boggy Creek Field. Eight of the twelve wells were on lands held under both the Fouke Estate Lease and the Fouke B Lease. Five of those were dry wells and the remaining three were completed as commercially productive. After the B-3 well was plugged and abandoned on December 6, 1984, Ross Production did no further drilling or exploration on those three forty-acre units of Section 24 under the Fouke B Lease.

In October of 1992, appellant Mike Davis acquired top leases on the southeast quarter of the southeast quarter of Section 24 (SE 1/4 SE 1/4). This is the same forty-acre unit under the Fouke B Lease in which Ross Production drilled and abandoned the B-l well in April 1982. This unit, hereinafter described as the B-l unit, is included in the Boggy Creek Field.

By letter dated January 18, 1994, Ross Production demanded Davis release his 1992 top leases. In response, Davis demanded Ross Production release the B-l unit from the 1979 Fouke B Lease, based on Ross Production holding the B-l unit for eleven years without further development and production. On May 12, 1994, Ross Production and Davis filed separate applications with the Commission for authority to drill a well at the same location on the B-l unit. That proposed drilling location is as close as the field rules allow to the B-2 well and the Fouke Estate No. 2 well, both of which are producing. If drilled as proposed, the new well would be located 560 feet from each of two producing wells owned by Ross Production. The Commission denied both requests pending a legal determination of which party had the right to drill and develop the B-1 unit.

On May 2, Ross Production filed a petition to remove the cloud on its leasehold and quiet title under the 1979 Fouke B Lease on behalf of itself and other owners of working interests in the Fouke B Lease, and to cancel Davis’s top leases on the B-1 unit. Davis answered pleading the affirmative defense of breach of covenants under the original oil and gas leases. Davis counterclaimed seeking cancellation of that portion of the 1979 Fouke B Lease on the B-l unit, and requested quiet title in him through his top leases for the B-l unit. Other procedural orders were entered which are not at issue here.

Following trial on the merits, the chancellor held as a matter of law the following:

The fact that [Ross Production] did not additionally explore or develop the [B-l unit] for the twelve year period that commenced with the plugging and abandonment of the Fouke Estate B-l well (April 1982) is not legally significant.

The chancellor found Ross Production began to explore or develop the B-l unit only when it learned Davis had obtained top leases on the B-l unit, and was prepared to submit to the Commission a request for permission to drill. Nonetheless, the chancellor concluded that Ross Production held the Fouke B Lease by having drilled a well on each of the three units under the lease. The chancellor also held Ross Production did not have a continuing duty to further develop the B-l unit from April 1982 through to the present. Lastly, the chancellor held as follows:

This court on the record before it does not find that the act of [Ross Production] in deferring drilling operations until such time as the price of crude oil would increase for the benefit of both the lessors and the lessee particularly when the minerals were owned in the same proportions by the owners under the entire leased premises and that not even the slightest indication has been made that drainage has occurred or that the lessors have sustained any economic loss except for the fact that a successful well within the [B-l unit] would have returned royalties to the mineral owners more quickly or at an earlier date.

In so holding, the chancellor quieted title to the leasehold on the B-l unit in Ross Production, canceled Davis’s top leases to the B-l unit, and dismissed Davis’s counterclaim with prejudice.

Davis raises the following points for reversal: (1) the chancellor erred in holding that Ross Production’s failure to develop the B-l unit for twelve years was legally insignificant; (2) the chancellor erred in holding that Ross Production had no duty to further develop the B-l unit from April 1982 to January 1995; and (31 the chancellor erred in finding that the lessors suffered no economic loss from Ross Production’s inactivity. Davis argues the foregoing findings were clearly erroneous and therefore the chancellor was wrong in cancelling his top leases and dismissing his counterclaim. Because we find Davis’s arguments have merit, we reverse and remand.

Because Davis’s first two points are so interrelated, we discuss them together. Davis contends Ross Production had a continuing duty to develop the B-l unit for the benefit of the royalty owners, and the fact both he and Ross applied for a drilling permit at the same time is evidence that a reasonably prudent operator would have drilled in the B-l unit earlier. Furthermore, Davis argues Ross Production could not hold the Fouke B Lease on the entire 120 acres by producing only on one forty-acre unit. Davis points out Ross has conducted no exploration or development under either the Fouke Estate or Fouke B leases since December 6, 1984. On the other hand, Ross Production concedes it has performed no drilling activities on the 120 acres under the Fouke B Lease since 1984, but argues its failure to do so was due to the depressed oil market. Ross also notes the considerable amount of money it has expended in exploring and developing the Boggy Creek Field, and contends cancellation of the lease as to the B-l unit would cause it irreparable injury and deprive it of “a vested leasehold interest.” Additionally, Ross points out the lessors of the B-l unit are the same lessors of the remainder of the Fouke B and the Fouke Estate leases, and they have accepted the royalties under those leases without demanding the B-l unit be further developed. Nor, Ross asserts, was there any evidence of drainage of oil from the B-l unit. Finally, Ross contends it complied with the implied covenant to develop by drilling a well in each of the three forty-acre units, and due deference must be given its judgment as lessee. In reply, Davis notes that while Ross Production claims to have spent over $1 million on the Boggy Creek Field, only $372,472 was spent on the 120 acres under the Fouke B Lease, and none has been spent since 1984. According to the evidence, Davis points out only $101,129 has been spent on the B-l unit since 1982.

The parties generally agree that the lessee has the duty to develop the entire leasehold and must do so with reasonable diligence. However, the parties do dispute the application of those principles to the facts of this case. Michael Davis testified he based his decision to obtain his leases on the B-l unit and drill the proposed site after studying Ross Production’s own electric well logs, as well as those of other operators in the area, all of which are public records filed with the Commission. Davis also testified he considered the B-l unit abandoned by Ross.

Ross Production’s own geological expert and business partner, Joseph Laird, testified that the geologic evidence had not changed since 1984, and he had recommended that Ross redrill the B-l unit after the B-l well was capped in 1982. Further, Laird testified that the proposed well will be separated from the producing B-2 well by a fault which will prevent the proposed well from draining the same reservoir as the B-2 well. Laird agreed with Davis’s assessment that the proposed well will probably produce commercial hydrocarbons. Finally, Laird testified they had known about the proposed well location since 1984, and nothing had prevented them from drilling a well there.

While Ross Production argues its decision not to drill the well from 1984 to the present was justified by the depressed oil market, Davis contends that, except for a period during the Persian Gulf War when the price of oil was at a high of $30 a barrel, the average price of oil over the twelve year period was $15 a barrel with a low of $12. Most significant on this point, however, is the cross-rebuttal testimony of Albert Ross, a partner in Ross Production. For example, Ross repeatedly admitted that Ross Production had not drilled on the B-l unit since 1982, because they were waiting for the price of oil to increase. Ross further testified that even though the price of oil was now lower than it had been at times in the past, it still was economically advantageous to drill the proposed well. Finally, Ross was asked why Ross Production failed to drill in the B-l unit since 1984, and he explained as follows:

Q It was economically feasible for you to drill this well in the preceding, any time during the preceding ten years?
[Ross] Yes, but, we were hoping that the price would go up so it would be more economically advantageous to both us and the royalty owners.

In Standard Oil Co. of La. v. Giller, 183 Ark. 776, 38 S.W.2d 766 (1931), this court held as follows:

[I]n any oil and gas lease in which royalties constitute the chief consideration, an implied covenant exists on the part of the lessee to explore the property with reasonable diligence, so as to produce oil and gas in paying quantities upon the entire tract. Especially is this true after either or both commodities has or have been discovered on any part of the tract.

Id. at 777. See also Byrd v. Bradham, 280 Ark. 11, 655 S.W.2d 366 (1983) (production on only a small portion of the leased land does not justify allowing the lessees to hold the entire leasehold indefinitely). While due deference should be given to the judgment of the lessee as operator to determine how many wells should be drilled, the lessee must use sound judgment, and promote and protect the interests of both himself and the lessor. Giller at 777.

We also note that in Ezzell v. Oil Associates, Inc., 180 Ark. 802, 22 S.W.2d 1015 (1930), this court stated in dicta the following:

It is true that the drilling of oil wells is very costly, but the parties understood this when they executed the lease. The lessee only agreed to pay the lessors one-eighth of the oil produced as rent, and reserved seven-eighths of it for its own profit in drilling the well, and in undertaking the risk of not finding any oil.

Id. at 812. The lessee has a duty to produce throughout the whole of the leased premises, and the lessee must not consider his own interests wholly or for the most part. Poindexter v. Lion Oil Refining Co., 205 Ark. 978, 167 S.W.2d 492 (1943).

Furthermore, we recently decided the case of Sunbelt Expío ration Co. v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995), which involved an action to cancel underlying leases in favor of top leases. There, Sunbelt argued in part that Stephens breached its duty to further develop a gas reservoir which was divided by a fault. In rejecting Sunbelt’s arguments and holding cancellation was not appropriate, we noted the undisputed testimony showed the technology was not available until 1990 to determine that a fault existed dividing the gas reservoir which prevented production from the entire reservoir, and Stephens began plans to develop the lower portion of the reservoir as soon as the fault was discovered.

While recognizing the lessee-operator is interested in obtaining the greatest profits possible, this court has held that the oil and gas lease is not executed for speculative purposes, but for present benefits or for benefits to be obtained within a reasonable time. Mansfield Gas Co. v. Alexander, 97 Ark. 167, 133 S.W. 837 (1911). If the lessee-operator contends there is nothing to be gained by continued development, the lessee has lost nothing by cancellation of the nonproducing portion of the lease. Byrd v. Bradham, 280 Ark. 11, 655 S.W.2d 366 (1983); Skelly Oil Co. v. Scoggins, 231 Ark. 357, 329 S.W.2d 424 (1959).

Each oil and gas case is, more often than not, distinguishable upon its own facts. Based on the facts presented here, Ross Production knew that the isolated reservoir existed in the B-l unit as early as 1984, and that the B-2 well was not producing from that reservoir. Ross Production’s own geologist recommended redrilling the B-l unit in 1982. Further, Ross Production’s own evidence shows the price of oil had remained fairly stable during the eleven-year period, except for two periods, during 1985 and during the Persian Gulf War in 1990, when the barrel price rose to $25 and above. Despite the relatively stable oil prices over the years, Ross Production did not become interested in further developing the B-l unit until it discovered Davis had filed his top leases.

In considering Ross Production’s own testimony and evidence as set out hereinabove, we cannot say that its actions were those of a prudent operator who exercised reasonable diligence in exploring and developing the entire leasehold. Therefore, the chancellor’s holding that Ross Production’s inactivity was legally insignificant and that it had no duty to further develop the B-l unit was clearly erroneous.

We turn next to Davis’s argument that the trial court erred in finding that Ross Production’s act of deferring drilling operations did not result in economic loss to the lessors. In support of his argument, Davis states that Ross Production’s delay of twelve years in developing the B-l unit resulted in a loss of royalties from a producing well and prevented the lessors from making other arrangements for development. See also Howard R. Williams & Charles J. Meyers, Oil and Gas Law § 834 (1987) (while usually inadequate, the lessor’s damages may be based either on the royalty income lost from the time a well should have been drilled, or on the interest on the sum that would have been paid if no breach had occurred). Davis also notes that under the Fouke B Lease with Ross Production, the royalty owners receive 1/8 of the oil produced as rental, whereas with him, the royalty owners could receive 3/16. On the other hand, Ross Production avers the owners received their royalty interest from the producing B-2 well over the years.

As Davis notes, in Nolan v. Thomas, 228 Ark. 572, 309 S.W.2d 727 (1958), this court stated the production of oil on a small portion of the lease tract cannot justify the lessee’s holding the balance indefinitely and depriving the lessor, not only of the expected royalty from production, but of the privilege of making some other arrangement. See also Enstar Corp. v. Crystal Oil Co., 294 Ark. 77, 740 S.W.2d 630 (1987); Skelly Oil Co. v. Scoggins, 231 Ark. 357, 329 S.W.2d 424 (1959). Since 1984, when further development under the Fouke B Lease ceased, the royalty owners lost income which could have been earned from redrilling the B-l unit. For these reasons, we must hold that the chancellor was also clearly erroneous in finding that the royalty owners have not sustained losses.

In conclusion, we mention Davis’s suggestion that this court establish, as a matter of law, a specific, maximum time period of inactivity after which an oil and gas lease would be subject to cancellation for failure to drill and develop the leasehold. Davis cites Ark. Code Ann. § 15-73-201 (Repl. 1994) wherein the General Assembly has provided that one year beyond the primary term of the lease or one year within completion of a well is a maximum time the lessee can hold by production, lands outside a unit or pool in which there has been no production or exploration. Davis suggests this court adopt a period of ten years, rather than one year, as a matter of public policy. We choose not to do as Davis requests. As we have stated many times, it is for the General Assembly, not the courts, to establish public policy. Nabholz Construction Corp. v. Graham, 319 Ark. 396, 892 S.W.2d 456 (1995).

On appeal, we review chancery cases de novo and will reverse the findings of the chancellor only if those findings are clearly erroneous. Sunbelt Exploration Co. v. Stephens Production Co., 320 Ark. 298, 896 S.W.2d 867 (1995). Here, as more fully discussed above, the chancellor was clearly wrong (1) in holding Ross Production’s inactivity on the B-l unit was legally insignificant, (2) in deciding Ross Production had no duty to further develop the B-l unit, and (3) in finding the royalty owners suffered no loss as a result. Because we find Ross Production breached the implied convent to continue to explore and develop the B-l unit, we reverse and remand with orders to cancel the Fouke B Lease with Ross Production only as to the forty acre SE 1/4 SE 1/4 unit, and to quiet title to the same in Davis.

Jesson, C.J., not participating.

       The only portion of Section 24 which Ross Production did not obtain is a forty-acre unit located in the northeast quarter of the northeast quarter (NE 1/4 NE 1/4).

         A top lease is a lease granted by a landowner during the existence of a recorded mineral lease which is to become effective if and when the existing lease expires or is terminated. Crystal Oil Co. v. Warmack, 313 Ark. 381, 383, 855 S.W.2d 299, 301 (1993) (citing Howard R. Williams & Charles J. Meyers, Manual of Oil and Gas Terms 1011 (7th ed. 1987).

       Because the Fouke B Lease was entered into in 1979, before the effective date of the statute, this statute is not controlling in this case. See § 15-73-201(c).


source: Caselaw Access Project

author: Robert L. Brown,

license: Public Domain

text:
    Dennis Lee CALDWELL v. STATE of Arkansas
    CR 95-296
    910 S.W.2d 667
    Supreme Court of Arkansas
    Opinion delivered November 20, 1995

      Thomas D. Deen, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown,

Justice. Appellant Dennis Lee Caldwell was convicted of first-degree murder, attempted rape, and burglary. He was sentenced to prison terms of life, thirty years, and twenty years, respectively. On appeal, he argues that the trial court erred (1) in failing to quash the jury venire; (2) in permitting the State to make a rebuttal argument during the sentencing phase; and (3) in refusing to give his proffered instruction on voluntary intoxication. The arguments are without merit, and we affirm the judgments.

On August 5, 1993, Keith Franklin was stabbed to death outside of his residence in Monticello. On the morning of August 7,1993, Caldwell, who was at his parents’ home in Crossed:, was arrested by Crossed police officers. He made an oral confession to Officer Scott McCormick of the Crossed Police Department and said that he had stabbed “a fellow” in Monticello and thought that he had killed him but that he had been smoking crack cocaine for three days and did not know what he was doing. He told Officer Steve Sadler, also of the Crossed Police Department, that he had smoked $400 to $500 worth of crack cocaine. That same morning, Caldwell was transported back to Monticello where he signed a written statement taken by Captain Charles Cater of the Monticello Police Department. That statement was introduced at trial and describes what occurred:

On Thursday evening around 8:40 p.m., I walked up to Keith Franklin’s house, I knocked on the door Mrs. Allison was there, I ask here if Keith was home, she said no. I left going in back toward the trailer I have been staying in, I saw Keith and Vickie Haynie setting in front of the house, Keith ask where I was going I told him I was going to get ready to go to work. I put on a pair of white warmups, and a rabbit shirt. I put the knife in my pocket. I walked around the park, I walked back to Winchester Rd. I saw Keith putting his bike in the house. I told him I would be at the back door, Keith came out the back door, we started talking. I pushed Keith he called me a big crack headed son-of-a-bitch. I close lined him and he fell. I got on top of him. I threatened him with the knife. He grabbed my arm. He was holding my arm. I drew back my other fist and he let go, when he turned loose of my arm, the knife came down & stuck him. I thought damn, I have done f.....up. Then I stuck him two more times, I got up off of him and went to the back door, I went inside to the kitchen, Mrs. Allison came into the kitchen, I grabbed her and tried to put a pillow case over her head, but she pulled it off. I was behind her I pushed her into the bedroom, onto the bed, I pulled her pants off. She said, I want to get my grandbaby. I went into the living room and got the baby’s bottle, when I came back into the room she was crawling out the window. I took off, I jumped the fence & went toward the church. I crossed Oakland St. and went back by Vickie’s house. There is a trail that leads to the trailer pk. I went to Antwaun’s trailer. I caught a ride to work. I went on to work, about a hour later, someone told me Keith was dead. I ask my boss, if I could leave. I left and walked to James Dealer’s house. I got with Wanda and Yvon her sister. We went back to Keith’s house.

Viletha Allison, who was Keith Franklin’s 63-year-old mother, confirmed the burglary and attempted rape in her testimony at trial. She testified that she later found her son’s wallet in a pillow case in the bedroom where the attempted rape occurred without any money in it.

A steak knife was seized from the trailer where Caldwell was living, and the blood scrapings from the knife matched the DNA profiles of the victim. Dr. Charles Kokes, a state medical examiner, testified at trial that the victim had 22 stab wounds to his neck, hands, chest, and left thigh and that he died of massive internal bleeding.

Caldwell was charged with capital murder and the death penalty was requested. He was found guilty of first-degree murder and sentenced to life imprisonment as well as to terms of years for attempted rape and burglary.

I. JURY VENIRE

Caldwell first contends that the trial court erred in its failure to grant his motion to quash the venire because it was not made up solely of registered voters from the judicial district where the crime was committed. According to Caldwell, the Consent Decree entered by the United States District Court in Hunt v. State, No. PB-C-89-406 (Nov. 7, 1991), established new judicial districts which favored the election of minority judges and which also required that juries be selected from registered voters who lived in those new districts when crimes were committed there. The Franklin murder did occur in a new district, argues Caldwell, and yet only three jurors who were registered voters of the new district served on his jury. Under Caldwell’s theory of the case, that runs directly contrary to Arkansas law and to the Sixth Amendment to the U.S. Constitution.

Article 7, section 13, of the Arkansas Constitution sets the parameters for the state’s judicial districts, or circuits:

The State shall be divided into convenient circuits, each circuit to be made up of contiguous counties, for each of which circuits a judge shall be elected, who, during his continuance in office, shall reside in and be a conservator of the peace within the circuit for which he shall have been elected.

Thus, under the plain meaning of the Constitution, the judicial districts, or circuits, are to be framed along county lines and may include more than one county. The General Assembly has provided that each year “the prospective jurors for the following calendar year shall be selected from among the current list of registered voters of the applicable district or county. . . .” Ark. Code Ann. § 16-32-103(a) (Repl. 1994). Subsection (b) of § 16-32-103 states that the persons selected for jury duty shall come from registered voter lists for the district or county as provided by the county clerk.

The Consent Decree invoked by Caldwell in this appeal did have as its purpose “to provide African American voters improved and equal access to the political processes for electing judges to the trial courts of general jurisdiction in the State of Arkansas and to enhance the political participation and awareness of all citizens.” The Consent Decree also states that the lines of existing judicial districts will not be disturbed by the remedy except to the extent that electoral subdistricts are created. The Decree then goes forward and creates “majority African American and majority white population electoral subdistricts in Judicial Districts One, Two, Six, Ten, and Eleven West. . . .” The Tenth Judicial District is at issue in the instant case. The General Assembly has designated its composition as Drew, Bradley, Ashley, Chicot, and Desha Counties. See Ark. Code Ann. § 16-13-1801 (Repl. 1994).

Whether the electoral subdistricts contemplated in the Consent Decree are judicial districts under our Constitution and statutes is an issue that has not been previously addressed in an opinion by this Court. In Morgan v. State, 273 Ark. 252, 618 S.W.2d 161 (1981), this court did consider whether the trial court erred in allowing the jury only to be drawn from one of the two judicial districts created in Sebastian County. We concluded that “[cjlearly both our Constitution and the statute contemplate that a jury may properly be drawn from only one district within a county having more than one district.” Morgan, 273 Ark at 255, 618 S.W.2d at 162. In Morgan, however, this court was analyzing Article 13, § 5, which expressly provides for two judicial districts in Sebastian County.

In the case at hand, there is no constitutional or legislative provision that divides the Tenth Judicial District into two judicial districts. Added to this point is the fact that the language of the Consent Decree states that its remedy is directed at violations of the United States Voting Rights Act, and it specifically states that it “will not disturb existing district lines of the present judicial districts except to the extent that it creates electoral subdistricts. . ..” Other than inserting this new electoral district for the purposes of electing minority judges, no other aspects of the Tenth Judicial District were to be affected. According to the Consent Decree, the judges elected from the electoral subdistricts would exercise jurisdiction district-wide, and there was no requirement that each judge reside within the electoral district.

In an attempt to establish that legislative approval of the Consent Decree has occurred, Caldwell directs us to various appropriation measures passed by the General Assembly to fund the state judicial system. These measures do not evidence a directive by the General Assembly to subdivide the Tenth Judicial District but rather are funding mechanisms for the judges and judicial offices in both electoral subdistricts who exercise their authority throughout the judicial district. There simply has been no effort by the General Assembly to convert the electoral sub-districts into entirely separate and self-contained judicial districts with all the attendant ramifications. We hold that the electoral subdistricts within the Tenth Judicial District are not judicial districts and that the venire in this case was properly drawn from Drew County as a whole.

Finally, Caldwell maintains that he has a right under the Sixth Amendment to the U.S. Constitution to have the jurors selected from the electoral subdistrict where the crime was committed. The Sixth Amendment reads:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation. . . .

Caldwell provides us only with reference to the Sixth Amendment and with no additional authority. For the reasons stated above, we do not perceive the new subdistricts as having been created for reasons other than for the elections of minority judges. We hold that the Tenth Judicial District remains intact under state law and that the state’s judicial districts are the districts referenced in the Sixth Amendment as opposed to the electoral sub-districts established in the Consent Decree.

II. REBUTTAL ARGUMENT

Caldwell next urges that he was prejudiced in the sentencing phase because the trial court permitted the State to rebut his closing argument. Caldwell argues strenuously that in the sentencing phase, there is no burden of proof on either the State or the defense and, as a consequence, the State is unduly favored by having had the last word in this instance.

When the issue before us was whether the State was entitled to any closing argument during the sentencing phase for habitual offenders, we stated:

The appellant also argues that it was error to allow additional closing argument in the sentencing phase of the trial because it is not provided for in the statutory provision [Ark. Code Ann. § 5-4-202 (1987)] providing for sentencing procedure for habitual offenders. He maintains it prejudiced him because the prosecutor was able to argue punishment on both convictions. The appellant cites no authority for his contention beyond the language of Ark. Code Ann. § 5-4-502, which gives us no guidance. However, we find some analogy to the procedure in capital cases, see Ark. Code Ann. § 5-4-602 (1987), and that, coupled with the trial court’s broad discretion in the management of trial proceedings generally, supports the conclusion there was no error.

Beard v. State, 306 Ark. 546, 553, 816 S.W.2d 860, 864 (1991).

Act 353 of 1993, which establishes new bifurcated sentencing procedures in criminal trials, contemplates that the State will introduce relevant evidence to the issue of sentencing, including prior convictions, delinquency adjudications, and aggravating circumstances, but it is also silent on the procedures for argument in the sentence phase at jury trials. See Ark. Code Ann. § 16-97-103 (Supp. 1993). The trial court followed the traditional format in criminal cases, where the State has the burden of proof, by allowing the State to present its closing argument, the defense to respond, and the State to rebut. See Ark. Code Ann. § 16-89-123(a) (1987). As in Beard v. State, supra, permitting the State rebuttal argument in the sentencing phase when it has the burden of obtaining some penalty falls within the trial court’s broad discretion in managing the trial. We hold that there was no abuse of that discretion in the procedure followed by the trial court in this regard.

III. PROFFERED INSTRUCTION ON INTOXICATION

After the evidence presented during the guilt phase of the trial, Caldwell offered the following instruction which the trial court refused to give:

Voluntary intoxication is not a defense. It may, however, be considered by you in determining whether or not Dennis Caldwell has the ability to form the specific intent [for] the offense charged.

Caldwell then proffered the instmction for purposes of this appeal.

By Act 101 of 1977, now codified at Ark. Code Ann. § 5-2-207 (Repl. 1993), the General Assembly eliminated self-induced intoxication as a defense in criminal prosecutions. We have recognized that voluntary intoxication is no longer a defense to criminal charges in a line of cases since the enactment of Act 101. See, e.g., Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Spohn v. State, 310 Ark. 500, 837 S.W.2d 873 (1992); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992); Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991); Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1992); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

Contrary to Caldwell’s assertion, § 5-2-207 does not eliminate the State’s burden to prove purposeful intent to commit murder beyond a reasonable doubt, and the jury in his case was specifically instructed on the State’s burden in this respect. We confronted this identical issue in Sullinger v. State, supra, also a first-degree murder case, where a due process violation was similarly raised. We referred in that opinion to § 5-2-207 and its constitutional soundness. We underscored that ample evidence of purposeful intent had been presented in the case in the form of two eyewitnesses who described how the defendant had shot the police officer. We also made reference to the evidence that the defendant brought before the jury relating to his history of alcohol abuse. It was clear in Sullinger that the burden of proof remained with the State to prove purposeful intent and that the jury had determined that the State met its burden.

Here, Caldwell described his conduct in a statement given to Captain Cater of the Monticello Police Department. In that statement, Caldwell recounted in clear and lucid fashion the crimes he had perpetrated against Keith Franklin and Viletha Allison. There was no suggestion from any State witness, including the victim, Viletha Allison, that Caldwell’s actions demonstrated anything other than intentional behavior. There was also evidence presented to the jury that Caldwell had been on a significant crack cocaine binge at the time of the crimes. Thus, the evidence relating to any element of purposeful intent was for the jury to weigh and evaluate in light of the State’s burden to prove that intent beyond a reasonable doubt. That is how the jury was instructed, and, as in Sullinger v. State, supra, it clearly found that the State met that burden.

Caldwell’s proffered jury instruction is not an AMCI Instruction. Moreover, the instruction merely emphasizes Caldwell’s theory of the case that his crack cocaine intoxication should be considered as diminishing his capacity to form purposeful intent. The trial court properly refused to give the instruction.

The record in this case has been examined in accordance with Supreme Court Rule 4-3(h), and no reversible error has been found.

Affirmed.

       The thrust of the State’s case was capital felony murder and first-degree felony murder with robbery of Franklin as the underlying felony. The jury, however, was also instructed on purposefully causing the death of another and for that reason we address the issue of the proffered instruction in terms of purposeful murder.


author: Andree Layton Roaf, Justice.

text:
    Ollis X. HEARD v. STATE of Arkansas
    CR 95-445
    910 S.W.2d 663
    Supreme Court of Arkansas
    Opinion delivered November 20, 1995

      Bryant & Henry, by: Craig L. Henry, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

Appellant Ollis X. Heard was convicted of delivery of a controlled substance, two rocks of crack cocaine, and sentenced as an habitual offender to seventy years imprisonment. On appeal he argues that the trial court erred in 1) denying his motion for directed verdict based on insufficiency of the evidence, 2) ruling that his Batson motion based on the state’s peremptory challenge of one black juror was untimely, 3) failing to require the state to provide racially neutral reasons for the peremptory challenge of the black juror, and 4) failing to grant a mistrial when the state improperly introduced evidence of a prior extraneous offense. We affirm the conviction.

Officer Willie Pegues of the Hot Springs Police Department testified that while he was working with the Texarkana Police Department as an undercover agent on the evening December 6, 1990, he observed Ollis Heard and Michael Chappell leaving a Texarkana club. Pegues testified that when he called Heard over to his car and asked him about some “rocks,” Heard pointed to Chappell and stated “that was his man.” Chappell approached Heard and stated “he needed some more.” Chappell and Heard walked towards a van, and Pegues observed Heard “take something out of his pocket and give it to Chappell.” Chappell returned to Pegues’ vehicle with five rocks in his hand. Officer Pegues testified that, after he witnessed Heard hand something to Chappell, Chappell walked to Pegues’ vehicle without putting his hand in his pocket. Pegues selected two rocks and paid Chappell $40.00. Chappell then walked back to Heard, and Pegues observed Chappell hand Heard “something green,” which he determined to be money. The two rocks purchased by Pegues were analyzed and found to contain cocaine base.

Appellant first argues that the trial court erred in denying his motion for directed verdict based on insufficient evidence. At the conclusion of the state’s case, appellant moved for a directed verdict on the basis that there had been no evidence that he either transported or delivered a controlled substance to another party or that he had received any money or anything of value in exchange for such a delivery. The trial court denied the motion. Appellant presented the testimony of Chappell, who denied that he had sold drugs for appellant. Appellant renewed his motion for directed verdict; the trial court again denied the motion. The state then moved to introduce several exhibits from Chappell’s case file through an employee of the prosecutor’s office, stating:

Judge, probably not even in rebuttal, but I guess since the Defendant has rested, the State would offer in rebuttal the exhibits that we talked to you about that we want to do for a limited purpose and I think I will probably call Wanda Winchester up to testify for the State outside the presence of the jury.

(Emphasis added.) Appellant objected to the introduction of the exhibits and to the testimony of the witness on several grounds, including the failure of the state to provide the exhibits and the identity of the witness during discovery. The state responded, “Rebuttal evidence . . . not required to expose that during discovery.” (Emphasis added.) The trial court overruled the appellant’s objection, and the state called its witness, who then testified and was cross-examined by appellant’s counsel concerning the state’s exhibits. Appellant objected to the introduction of the exhibits; the trial court admitted one exhibit and sustained appellant’s objection to the four remaining exhibits. The appellant did not make any further motion for directed verdict after the close of the state’s rebuttal.

As Heard failed to renew his motion for directed verdict after the rebuttal testimony presented by the state, he is precluded from challenging the sufficiency of the evidence on appeal. See Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994). The failure of a defendant to move for a directed verdict at the close of the case waives any question pertaining to the sufficiency of the evidence. Id.; Ark. R. Crim. P. 36.21(b). We have concluded that the plain language of the rule requires a renewal after rebuttal evidence is presented, and we interpret the rule strictly. Christian, supra.

Appellant contends the state did not present “rebuttal” evidence because the state had either forgotten to introduce the exhibit during Chappell’s testimony or wanted to introduce it out of the hearing of the jury. Appellant further argued the exhibit admitted had “little, if any, relevance to the issue of whether there was sufficient evidence to convict Appellant of the offense of delivery of a controlled substance.” Clearly, the exhibit was evidence and it was admitted after Heard had rested his case. Thus, appellant did not renew his motion for directed verdict “at the close of the case,” and we do not reach the merits of his argument.

Appellant next argues the trial court erred in ruling that his Batson challenge was untimely and in failing to require the prosecutor to provide racially neutral reasons for the exercise of a peremptory challenge against a black juror. There were two blacks on the jury panel. The prosecution used its only peremptory challenge to strike one and the other was seated as a juror. At the conclusion of voir dire, but prior to the jury being sworn, appellant’s counsel requested that the record reflect that Heard is a black male and the state exercised a peremptory challenge against a black female. He requested that the state provide a racially neutral reason as to why a peremptory challenge was exercised against the black juror. The trial judge denied the motion as untimely and further stated he was “convinced that the state did not systematically exclude blacks as the very next juror was of the black race and was accepted by the state as a member of this jury.”

In Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991), we discussed objections made pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), and stated that “[s]o long as the objection is made before the jury is sworn, we regard it as timely.” As Heard objected prior to the jury being sworn, his Batson challenge was timely.

In Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995), we recently set out the procedures which are to be followed when a Batson objection is raised:

First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the state has the burden of showing that the challenge was not based on race. Only if the defendant makes a prima facie case and the state fails to give a facially neutral reason for the challenge is the court required to conduct a sensitive inquiry.

(Quoting Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993).) We have stated a prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions or statements by a prosecuting attorney during voir dire. Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994). The standard of review for reversal of a trial court’s Batson ruling is whether the court’s findings are clearly against the preponderance of the evidence. Sims v. State, supra.

Although the trial judge incorrectly concluded Heard’s motion was untimely, he went on to state that he was “convinced that the state did not systematically exclude blacks as the very next juror was of the black race and was accepted by the state as a member of this jury.” In Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990), we concluded that the presence of minority members on the jury, while by no means determinative of the question of whether discrimination occurred, is significant. Further, we have commented that the best answer the state can have to a charge of discrimination is to be able to point to a jury which has some black members. Gilland v. State, supra; Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987).

Here, the state’s sole peremptory challenge was exercised to excuse a black juror; however, the very next juror was also a black woman and was accepted by the state. Furthermore, when this juror was seated, the state still had peremptory challenges remaining. See Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990).

We hold the appellant failed to make a prima facie case that racial discrimination was the basis of the juror challenge. Granted, the prosecution’s use of a peremptory challenge to remove the only black prospective juror may establish a prima facie case. See Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988). However, the one peremptory strike of a black prospective juror, with no additional facts or context in which it can be evaluated, is not sufficient. See Acklin v. State, 319 Ark. 363, 896 S.W.2d 423 (1995); sec also Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995). Accordingly, the trial court’s finding that there was no systematic exclusion is not clearly against the preponderance of the evidence.

Appellant finally argues the trial court erred in failing to grant a mistrial when the prosecutor improperly introduced evidence of a prior extraneous offense. Michael Chappell testified on behalf of the appellant and denied that he had ever sold or delivered cocaine for appellant. During the state’s cross-examination of Chappell, the prosecutor asked, “Were y’all at the same penitentiary together?” Counsel for appellant objected and moved for a mistrial; Chappell did not answer the question. The state asserted it was simply asking how Chappell knew the defendant in order to establish that they had planned Chappell’s testimony. The trial court denied the defendant’s motion for mistrial and ordered the state to make no further reference to the witness knowing the defendant in the penitentiary.

On appeal, appellant asserts the state made a purposeful attempt to interject in the case that he was currently incarcerated on other convictions, the trial court did not admonish the jury, and the statement was “highly prejudicial.” In reviewing the denial of motion for mistrial, among the factors we consider are whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice. Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994).

Any reference to a defendant’s prior convictions during the guilt phase of a criminal trial results in some prejudice to the defendant. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). Declaring a mistrial, however, is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any curative relief. Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994). The trial court should resort to mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected: the trial court has wide discretion in granting or denying a motion for a mistrial and its discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the movant. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). The trial court is in a better position to determine the effect of the remark on the jury and here the court concluded the reference was insufficient to warrant a mistrial. See Cupples v. State, supra.

Further, an admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994). We have concluded that an admonition is sufficient to cure a reference a witness made to a defendant’s “previous record.” Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994). Similarly, in the instant case, an admonition would have been sufficient to cure the error. The appellant failed to request this relief; however, it was clearly his obligation to ask for a curative instruction, and the failure to do so will not inure to his benefit on appeal. Vick v. State, 314 Ark. 618, 863 S.W.2d 820 (1993).

Affirmed.


author: Per Curiam.

text:
    EDWARD J. DEBARTOLO CORPORATION, INC. v. Vallie J. CARTWRIGHT
    94-1147
    910 S.W.2d 675
    Supreme Court of Arkansas
    Opinion delivered November 20, 1995

      J.L. Wilson, for appellee.
   Per Curiam.

In response to appellee’s motion for disqualification, Justices Robert H. Dudley, Tom Glaze, and Donald Corbin recuse but not for any of the reasons set out in her motion. Appellee’s attorney, J. L. Wilson, was sanctioned in federal court as a result of a criminal conviction and is now the subject of disciplinary proceedings before the State Professional Conduct Committee and disbarment proceedings before the Phillips County Circuit Court which have been remanded to federal court. Because these named justices intend to seek Rule 11 sanctions to be imposed against attorney J. L. Wilson and his attorneys for filing a no-merit petition in federal court, we recuse.


text:
    Johnny MARTIN v. CITY OF SEARCY
    CR 95-1143
    909 S.W.2d 652
    Supreme Court of Arkansas
    Opinion delivered November 20, 1995

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

Appellant Johnny Martin, by his attorney, has filed for a rule on the clerk.

His attorney, Robert Meurer, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Pamela F. SKOKOS v. Theodore C. SKOKOS Alice S. Gray, Respondent
    95-1029
    909 S.W.2d 653
    Supreme Court of Arkansas
    Opinion delivered November 27, 1995

      Robinson, Staley & Marshall, by: Robert L Robinson, Jr. and Henry Hodges, for petitioner/appellant.

      Hollingsworth Law Firm, P.A., by: Les Hollingsworth and Arkie Byrd, and Dodds, Kidd, Ryan & Moore, by: Judson Kidd, for appellee.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Deputy Att’y Gen., for respondent.
   Per Curiam.

Because appellant Pamela F. Skokos was unable to obtain a hearing and ruling below in her ARCP Rule 60 motion, she filed her notice of appeal and lodged a partial record with this court with the intent to request us later to remand the cause so her motion could be adjudicated below. Her action was taken in these special circumstances to insure she did not waive her right to an appeal. She now requests that remand, but also asks this court to disqualify the trial judge pursuant to Ark. Const, art. 7, § 20.

Both appellees Theodore C. Skokos and Chancery Judge Alice S. Gray deny that any reasons exist to require the chancellor’s recusal and further argue the appellant should not be permitted a remand for Rule 60 purposes, since the matter has been appealed. Nonetheless, in this appeal, Judge Gray responds to appellant’s motions, and in doing so, announces her decision to recuse.

Because of Judge Gray’s decision to recuse, we acknowledge her recusal by this per curiam, and pursuant to Ark. Code Ann. § 16-10-101 (Repl. 1994), assign Chancery Judge Jim R. Hannah to hear or rule on any matters required to be settled upon the remand of this cause. Rule 6(e) of the Rules of Appellate Procedure. In addition, appellant and appellee Theodore C. Skokos ask that the records previously filed in two prior cases considered by us, Skokos v. Gray, case no. 94-952, and Hodges v. Gray, case no. 94-1191, be consolidated and chronologized in the present cause. We grant that request. Accordingly, we remand this case with directions to Chancery Judge Jim R. Hannah to proceed consistent with the court’s opinion.

Brown and Roaf, JJ., not participating.


author: Per Curiam. Tom Glaze, Justice,

text:
    Sharon PRIEST, Secretary of State, and Jimmie Lou Fisher, Treasurer; Marilyn M. Zornik, Natural Guardian and Next Friend of Anna Margaret Zornik, a Minor v. Jennifer POLK and Randall L. Bynum, On Behalf of Themselves and All Others Similarly Situated; Steve Clark
    95-1197
    912 S.W.2d 900
    Supreme Court of Arkansas
    Opinion delivered November 28, 1995

      Winston Bryant, Att’y Gen., by: Tim Humphries, Deputy Att’y Gen., for appellants/cross-appellees, and Ann Purvis, Gen. Counsel, Sec. of State’s Office, for separate appellant Sharon Priest, Sec. of State.

      Vincent C. Henderson II, for intervenor Marilyn M. Zornik.

      Trotter Law Firm, P.A., by: Scott C. Trotter, Richard B. Adkisson, and Larry Page, for appellees/cross-appellants.

      DeLay Law Firm, by: R. Gunner DeLay, for appellees.
   Per Curiam.

Appellants have filed a motion to stay the enforcement of the order of the chancery court declaring void Acts 1 and 2 of the First Extraordinary Session of 1995 and enjoining the December 12,1995 special election called pursuant to Act 1 of the First Extraordinary Session of 1995. Appellants’ motion for stay is hereby granted. The parties are requested to brief the subject matter jurisdiction issue. The briefing schedule previously set will be followed such that subject matter jurisdiction may be briefed in the reply briefs due November 29, 1995.

Glaze, J., concurs.

Dudley and Newbern, JJ., dissent.

Tom Glaze, Justice,

concurring.

This case, jurisdictionally, should have been filed in circuit court. It is clear that both circuit and chancery courts may have subject-matter jurisdiction of illegal-exaction cases; however, this court has held that an illegal exaction complaint was not proper where exclusive jurisdiction of the underlying matter was conferred on the circuit rather than the chancery court. Foster v. Jefferson County Quorum Ct., 321 Ark. 105, 901 S.W.2d 809 (1995) (supplemental opinion granting rehearing on other grounds). In Foster, we stated circuit court had jurisdiction of that illegal-exaction lawsuit because the underlying matter dealt with the validity of a sales tax election, and such election matter is exclusively in circuit court.

When determining whether the circuit court here has jurisdiction of the underlying matter, Arkansas’s landmark case of Catlett v. Republican Party of Ark., 242 Ark. 283, 413 S.W.2d 651 (1967), is controlling. There, the Catlett court held the jurisdiction of a suit to question the validity of a proposed measure was in circuit court, and in so holding, said the following:

[Cjourts of equity have no authority or jurisdiction to interpose for the protection of rights which are merely political, and where no civil or property right is involved. In all such cases, the remedy, if there is one, must be sought in a court of law. The extraordinary jurisdiction of courts of chancery can not, therefore, be invoked to protect the right of a citizen to vote or to be voted for at an election, or his right to be a candidate for or to be elected to any office. Nor can it be invoked for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held. These matters involve in themselves no property right but pertain solely to the political administration of government.

See also Mertz v. States, 318 Ark. 390, 885 S.W.2d 853 (1994) (court held jurisdiction in circuit court where legal validity of the initiative petition was at issue rather than a sufficiency issue); Moorman v. Lynch, 310 Ark. 525, 837 S.W.2d 886 (1992) (court held a suit to question the legal validity of a proposed measure is in circuit court); White v. Holmes, 302 Ark. 545, 790 S.W.2d 902 (1990) (court held where issues involved procedures to be followed by candidates in an election, the matter was purely political and should have been heard by the circuit court, not chancery court); McFerrin v. Knight, Clerk, 265 Ark. 658, 580 S.W.2d 463 (1979) (court held chancery court had no jurisdiction with respect to election contests or the adjudication of political rights, and such jurisdiction cannot be conferred by statute); City of North Little Rock v. Gorman, et al., 264 Ark. 150, 568 S.W.2d 481 (1978) (court held chancery court was without jurisdiction to entertain action which involved essentially political rights as distinguished from property rights; the vindication of one’s political rights must be sought in a court of law, namely the circuit court); see also Ark. Code Ann. § 16-13-201(a) (Repl. 1994).

This court looks to the pleadings to determine subject matter jurisdiction, Villines v. Lee, 321 Ark. 405, 902 S.W.2d 233 (1995), and in doing so, it is abundantly clear plaintiffs are seeking a vindication of their political rights, a declaration of the constitutional validity of Acts 1 and 2 of 1995 and an enjoinment of a called special election to be held on December 12, 1995. These matters clearly are issues to be tried in circuit court. In sum, in attacking Acts i and 2, plaintiffs specifically assert those Constitutional Convention Acts encroach upon the political power inherent in the people.

Because I am of the firm opinion, at this point, that the chancellor here had no jurisdiction to render the relief requested in this matter, I join in staying the order entered by the chancellor. The parties have been given time to brief the jurisdictional issue, but unless they present convincing legal authority placing this matter in equity, I believe this case should be reversed and dismissed.

In conclusion, I would add that the dissenting opinion thoroughly ignores the applicable rule of law set forth in Foster, which places exclusive jurisdiction in circuit court where the underlying matters involve an election issue, as is the situation in the case now before us. In Foster, the plaintiff properly filed his case in circuit court — in the present case, plaintiffs improperly filed their case in chancery court contrary to this court’s case law, placing exclusive jurisdiction in law court. This court is obliged to raise the jurisdiction issue, because plaintiffs here filed their action in chancery rather than circuit court. In short, this case is not one involving “propriety.” Under case law, circuit court clearly has jurisdiction under the pleadings filed by plaintiffs here, and therefore, this court is obliged to raise and decide this jurisdiction issue rather than ignore it, as the dissenting opinion suggests. Mertz v. States, 318 Ark. 390, 885 S.W.2d 853.

David Newbern, Justice, dissenting. The Chancellor determined that the emergency clause accompanying Act 1 was ineffective. She held, therefore, that the expenditures of funds as required by Act 1 would constitute an illegal exaction. A chancery court has jurisdiction of the subject matter of a public expenditure amounting to an illegal exaction as the public is the equitable owner of the funds to be expended. Brewer v. Hawkins, 241 Ark. 460, 408 S.W.2d 492 (1966). See Martin v. Couey Chrysler Plymouth, Inc., 308 Ark. 325, 824 S.W.2d 832 (1992); Pledger v. Featherlite Precast Corp., 308 Ark. 124, 823 S.W.2d 852, cert. denied, 506 U.S. 826, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992).

In Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809 (1995), the original majority opinion noted Jackson v. Munson, 288 Ark. 57, 701 S.W.2d 378 (1986), and quoted language to the effect that “an illegal exaction complaint was not proper where exclusive jurisdiction of the underlying matter was conferred on the circuit court rather than the chancery court.” The quotation was given in the context of stating that the jurisdictional question is “an issue we need not decide.” The important and operative portion of the opinion stated:

Circuit court has subject-matter jurisdiction of illegal exaction suits. Jones v. Clark, 278 Ark. 119, 644 S.W.2d 257 (1983). Chancery court also has subject-matter jurisdiction of illegal exaction suits. Nelson v. Berry Petroleum Co., 242 Ark. 273, 413 S.W.2d 46 (1967). We have held that subject-matter jurisdiction is concurrent; therefore, the issue is one of propriety, not one of subject-matter jurisdiction, and unless the propriety of filing an illegal exaction suit is raised by the parties, we will not consider it. Beshear v. Ripling, 292 Ark. 79, 728 S.W.2d 170 (1987). The issue of propriety was not raised by the parties; thus, we do not consider it.

It is clear that there was no holding in that original opinion, the result of which was subsequently overturned on rehearing, even on the issue of “propriety,” and certainly not on a question of subject matter jurisdiction. Nor did the opinion on rehearing in the Foster case deal with the jurisdiction question. The issue of the Chancellor’s jurisdiction in the case now before us has not been raised by the parties, so if the original majority opinion in the Foster case has meaning for this motion, it is that we will not sua sponte consider the propriety of the Chancellor’s acting in the matter because it has not been raised by the parties.

Whether the Chancellor had authority to enjoin an election, per se, need not be at issue here. In Zamba v. Phillips, 320 Ark. 199, 895 S.W.2d 544 (1995), we said a chancellor had no authority to deal with the sufficiency of an election signature petition and thus could not get to the question of an illegal exaction. This case is different in that there was nothing to preclude the Chancellor from considering the validity of the emergency clause.

The Chancellor was asked to stay her order but denied the motion. A prerequisite to the stay of a preliminary injunction by a chancellor is a showing that there is a likelihood of success on the merits. Smith v. American Trucking Ass’n, 300 Ark. 594, 781 S.W.2d 3 (1993). We use the same standard when a motion for a stay of an injunction is presented to this Court. Osborne v. Power, 315 Ark. 336, 866 S.W.2d 412 (1993). The parties seeking the stay have not succeeded in demonstrating a likelihood of success on the merits, therefore, the stay of the injunction should be denied.

I respectfully dissent.

Dudley, J., joins in this dissent.

       Section 16-13-201(a) reads as follows:
      Circuit courts shall have original jurisdiction of all actions and proceedings for the enforcement of civil rights or redress of civil wrongs, except when exclusive jurisdiction is given to other courts. Where those actions and proceedings are not expressly provided for by statute, the actions and proceedings may be had and conducted by the circuit courts and judges, in accordance with the course, rules, and jurisdiction of the common law.


author: Bradley D. Jesson, Chief Justice.

text:
    Harold CLARK, d/b/a Harold Clark & Son v. MICHAEL MOTOR COMPANY, Inc.
    95-627
    910 S.W.2d 697
    Supreme Court of Arkansas
    Opinion delivered December 4, 1995

      John D. Garnett, for appellant.

      Bridges, Young, Matthews & Drake PLC, for appellee.
   Bradley D. Jesson, Chief Justice.

Appellant Harold Clark appeals from an entry of default judgment and sanctions against him under Arkansas Civil Procedure Rule 37 for failure to respond to a court order to submit discovery requests. The trial court entered judgment against Clark for the amount prayed for in appellee Michael Motor Company, Inc.’s amended replevin complaint for conversion of an automobile, which included $1547.34 for the value of the car, $3200.00 in punitive damages, and $149.61 in costs. The trial court also imposed $896.40 in sanctions against Clark and his attorney, John D. Garnett. On appeal, Clark asserts that the trial court erred in awarding damages in a summary manner without a hearing as to damages. We affirm the entry of the default judgment and the sanctions imposed for discovery violations, but reverse and remand as to the damages awarded for conversion.

This case involves a lengthy dispute over a 1983 Oldsmobile Delta Royale. In 1991, separate defendant Robert Brown purchased the car from appellee Michael Motor Company, Inc. (“Michael Motors”), which retained a purchase money security interest in the vehicle. Brown took the car to appellant Harold Clark, d/b/a Harold Clark & Son, an auto repair shop, for repair and storage. Brown defaulted, and in late 1992, Michael Motors filed a replevin complaint against Brown and Clark. Clark answered that the car was a total loss, and that his storage lien was superior and exceeded the salvage value of the vehicle. Michael Motors amended its complaint to allege that Clark had committed conversion, and prayed for $1547.34 in damages for the value of the car as converted, and $3200.00 in punitive damages.

A summary of the relevant pleadings is as follows. On March 26, 1993, Michael Motors propounded interrogatories and a request for admissions to Clark. On June 23, 1993, the trial court permitted counsel for Clark to disqualify, and ordered Clark to obtain substitute counsel and answer the interrogatories and request for admissions within 20 days. On July 2,1993, Clark filed a motion to substitute attorney John D. Garnett as counsel. While the record indicates that Clark filed responses to the interrogatories and request for admissions on August 6, 1993, no certificate of service is attached to either pleading. Subsequently, on September 21, 1993, the trial court entered an order for partial summary judgment against Clark on the issue of liability, while reserving the issue of the amount of damages and punitive damages. Following a January 28,1994, hearing on Michael Motors’s motion to compel Clark to answer its interrogatories, the trial court entered an order nunc pro tunc on February 15, 1994, directing that Clark had seven days from the hearing in which to supplement, without sanctions, his response to interrogatories. Approximately one year later, on February 14, 1995, the trial court entered a default judgment against Clark, and assessed sanctions “for the $4774.34 prayed for in the First Amended Complaint,” $149.61 in costs, and $896.40 in sanctions against Clark and his attorney. Clark appeals from the order granting default judgment.

Under Ark. R. Civ. P. 8(d), averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied. See also Rice v. Kroeck, 2 Ark. App. 223, 619 S.W.2d 691 (1981). It is the law in Arkansas that a default judgment establishes liability, but not the amount of damages. Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992). A defaulting defendant is entitled to a hearing to determine the amount of damages, and the plaintiff is required to introduce evidence of the damages. Id.; B & F Engineering v. Controneo, 309 Ark. 175, 830 S.W.2d 835 (1992). The defendant has the right to cross-examine the plaintiff’s witnesses, to introduce evidence in mitigation of damages, and to question on appeal the sufficiency of the evidence to support the amount of damages awarded. B & F Engineering v. Controneo, supra.

Michael Motors asserts that the trial court’s award was proper under Ark. R. Civ. P. 37. The rule provides that, after a trial court issues an order to compel an answer to an interrogatory, and the party still fails to comply with the trial court’s order, the trial court may enter a sanction against the offending party by, among other things, “rendering a default judgment against the disobedient party.” Ark. R. Civ. R 37(b)(2)(C).

Michael Motors further relies on our decision in Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989). Contrary to its assertion, Goodwin is not on point. In that case, Goodwin sued an obstetrician and gynecologist for medical malpractice, claiming that he had negligently prescribed birth control pills to her, and that he had failed to diagnose that the pills caused her to suffer a blood clot. The case went to trial and resulted in a jury verdict for the physician. On appeal, we rejected Goodwin’s argument that the trial court erred in refusing to impose monetary sanctions against the physician’s attorneys, while holding that the limited sanctions awarded against the attorneys for the failure to make discovery were proper under Rule 37. Goodwin did not involve the use of Rule 37(b)(2)(C) to impose damages in the amount prayed for in the complaint, as there was a verdict for the defendant in the case.

Simply put, the trial court was wrong to award damages for the value of the car and punitive damages for conversion under Ark. R. Civ. R 37 without hearing evidence as to such damages. In Sphere Drake Ins. Co. v. Bank of Wilson, 307 Ark. 422, 817 S.W.2d 870 (1991), we held that there was no authority under Rule 37(b)(2)(C) for sanctions in the amount of damages prayed for when the damages are unliquidated. In that case, a bank filed suit against an insurance company after it refused to pay the loss on a building that had burned. The bank, which had a secured interest in the building, sought $31,724.47 in damages, including the amount of the debt, a 12 percent penalty, attorney’s fees, and costs. The bank propounded interrogatories to the insurance company. After the bank filed a motion to compel, the trial court gave the insurance company a direct order telling it when to answer. The insurance company filed its answer late, and the trial court entered an order of default judgment as to liability, and assessed damages in the amount of damages prayed for in the amended complaint. The bank appealed. We affirmed the granting of default judgment as to liability, but reversed as to damages, rejecting the bank’s position that the amount awarded was a sanction imposed on the insurance company for its failure to respond to the interrogatories.

Based on our holding in Sphere Drake, we must conclude that the trial court erred in awarding judgment pursuant to Rule 37(b)(2)(C) for the amount of damages prayed for in Michael Motors’s complaint, as the damages were unliquidated. Thus, while we affirm the $896.40 in sanctions imposed against Clark and his attorney, John D. Garnett, we reverse the judgment as to the $4923.95 awarded for conversion, and remand for a hearing as to damages.

Affirmed in part; reversed and remanded in part.

Dudley, J., not participating.

       The amount sought in the amended complaint was actually $4747.34.


author: Robert H. Dudley, Justice.

text:
    Michael Thomas HOLMES v. STATE of Arkansas
    CR 95-441
    911 S.W.2d 256
    Supreme Court of Arkansas
    Opinion delivered December 4, 1995

      Kit Williams, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, a juvenile, was charged in circuit court with aggravated robbery. He filed a motion to transfer the case to juvenile court. The circuit court denied the motion. Appellant filed this interlocutory appeal from the circuit court’s denial of the transfer motion. We affirm the ruling of the circuit court.

A prosecuting attorney has the discretion to file charges in circuit court when a case involves a juvenile fourteen or fifteen years of age and the alleged act constitutes aggravated robbery. Ark. Code Ann. § 9-27-318(b) (Repl. 1993). In deciding whether to retain jurisdiction of the case, the trial court shall consider the seriousness of the offense, whether the offense is part of a repetitive pattern of adjudicated offenses, and the juvenile’s prospects for rehabilitation. Ark. Code Ann. § 9-27-318(e) (Repl. 1993). A defendant seeking a transfer has the burden of proof to show a transfer is warranted under Ark. Code Ann. § 9-27-318(e). Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995). “If he or she meets the burden, then the transfer is made unless there is clear and convincing countervailing evidence to support a finding that the juvenile should remain in circuit court.” Bradley v. State, 306 Ark. 621, 623, 816 S.W.2d 605, 606 (1991); Ark. Code Ann. § 9-27-318(f) (Repl. 1993). “‘Clear and convincing evidence’ has been defined by this Court as ‘that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.’ ” Cobbins v. State, 306 Ark. 447, 450, 816 S.W.2d 161, 163 (1991) (citation omitted).

The trial court is not required to give equal weight to each of the statutory factors. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). “Moreover, proof need not be introduced against the juvenile on each factor.” Davis v. State, 319 Ark. at 616, 893 S.W.2d at 769. “We have often stated that the serious and violent nature of an offense is a sufficient basis for denying a motion to transfer and trying a juvenile as an adult.” Sims v. State, 320 Ark. 528, 536, 900 S.W.2d 508, 513 (1995) (citing Davis v. State, 319 Ark. 613, 893 S.W.2d 678 (1995)). No element of violence beyond that required to commit the crime is necessary under Ark. Code Ann § 9-27-318(e)(l), see Slay v. State, 309 Ark. 507, 832 S.W.2d 217, (1992), a case in which the underlying crime was rape, and we wrote, “Cobbins cannot be read to require that an added element of violence must be shown under § 9-27-318(e)(l), and we believe it would be a perverted interpretation to construe that provision in such a manner.” Id. at 511, 832 S.W.2d at 219. However, that a crime is serious without the use of violence “is not a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile.” Sebastian v. State, 318 Ark. 494, 498, 885 S.W.2d 882, 885 (1994) .

The standard of review in a juvenile transfer case is whether the trial court’s denial of the motion to transfer was clearly erroneous. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995). In this case the proof showed that early in the afternoon of October 11, 1994, appellant broke into a residence and stole, among other items, a .22 caliber handgun and a .22 caliber rifle. Later that afternoon he took the loaded .22 caliber handgun to a pawnshop, pointed it at the proprietor, and demanded two handguns that were in a guncase and the money in the cash register. He left with the guns and money. Later that same afternoon he was arrested and, at the time, had the loaded 9 millimeter handgun taken from the pawnshop on his person and had the loaded .22 pistol taken from the residence on his moped. In the findings of fact, the circuit judge stated:

There are several factors I simply cannot overlook; obviously, the serious nature of these allegations, which apparently the defendant has admitted participating in. Aggravated robbery — violence as such may not have occurred in the traditional sense. In other words, no guns were fired or no one was assaulted or battered but certainly when a citizen looks down the barrel of a loaded revolver in the process of being held up, in my judgment that is a violent act.

In Johnson v. State, 317 Ark. 521, 878 S.W.2d 758 (1994), we affirmed the circuit court’s denial of a motion to transfer to juvenile court. The defendant was charged with aggravated robbery, allegedly having pulled a gun on a clerk, but not firing it. The trial court determined that the crime of aggravated robbery was one of violence. The defendant argued on appeal that his act was one of a threat to commit violence, not one of violence. We affirmed the trial court’s ruling and, in part, stated:

We also affirm the ruling on aggravated robbery based on our case of Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993). The aggravated robberies in that case were almost identical to the one in the case at bar, and we “determined that there was violence employed in the commission of the offenses.” Williams, 313 Ark. at 455, 856 S.W.2d at 7. Thus, we affirm the circuit court’s ruling denying the motion to transfer the aggravated robbery charge to juvenile court.

Id. at 524, 878 S.W.2d at 760.

Similarly, in Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992), we considered the violent nature of the crime of aggravated robbery. The defendant, who was also charged with two counts of capital murder, filed a motion to transfer two counts of aggravated robbery. At the hearing, the defendant only presented evidence of his age to support his motion. His attorney made the statement that the defendant had no prior involvement with the law. The State only presented the violent nature of the crimes of aggravated robbery as evidence. In affirming the denial of the motion to transfer, we said:

We considered the sufficiency of violence attached to a crime as a sufficient factor to refuse transfer in Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). The crime in Walker was first degree murder whereas the offenses in this case are aggravated robbery.... [T]he question before us is whether multiple counts of aggravated robbery are sufficient to withstand a motion for transfer when the opposing evidence is essentially the defendant’s age.
While the charge here is not identical to Walker, it is nonetheless serious. First degree murder and aggravated robbery are both class Y felonies. The difference is that in murder, violence is necessarily present and though aggravated robbery can be completed without the actual use of violence [Ark. Code Ann. § 5-12-103 (1987)], nevertheless, there are policy reasons why the offenses are treated comparably by the legislature and the trial court could take note of that parity.

Id. at 535-536, 823 S.W.2d 445.

Based on Johnson v. State, 317 Ark. 521, 878 S.W.2d 758 (1994), Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993), the case cited in Johnson, and Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992), the trial court could have relied on the violent nature of the crime of aggravated robbery in denying appellant’s motion to transfer to juvenile court. No violence beyond that necessary to commit the offense of which the defendant is accused is necessary under Ark. Code Ann. § 9-27-318(e)(1). See Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992). Even so, the record demonstrates that the trial court relied on more than the violent nature of the alleged crime in denying the motion to transfer.

The trial court considered appellant’s prior history, character traits, mental maturity, and other factors reflecting upon his prospects for rehabilitation. See Ark. Code Ann. § 9-27-318(e)(3). Specifically, the court considered the evidence that appellant had problems since the first grade and that efforts to address the problems had been unsuccessful. The court considered that appellant’s mother had tried unsuccessfully to help him and that she had assisted the juvenile court in getting appellant into a hospital, apparently for drug addiction or alcohol addiction. In discussing the fact that appellant had no prior adjudications, the trial judge addressed appellant’s prior contacts with the juvenile system, which included charges or allegations of assault and battery, theft by receiving, shoplifting, theft of property, and the burglary and aggravated robbery, and stays in a juvenile detention center and a hospital. In reaching his determination, the trial judge stated:

In my judgment, Mr. Holmes, considering the seriousness of this offense and the other factors which I have enumerated, the prospects for your rehabilitation at present are, in my judgment, nonexistent. Attempts have been made, and for whatever reason, you didn’t avail yourself of the opportunity to get yourself straightened out.

Though he was not required to do so, the trial judge made specific findings of fact at the hearing. See Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). The trial court’s findings show that the court did in fact consider the three factors listed in Ark. Code Ann. § 9-27-318(e). The alleged crime was serious and of a violent nature, and appellant’s history supports the trial court’s determination that he was not a good prospect for rehabilitation. The fact that appellant had no prior adjudications does not render the trial judge’s decision erroneous, since it is not necessary that proof of each factor listed in Ark. Code Ann. § 9-27-318(e) be presented or that the trial court give each factor equal weight.

Affirmed.


author: David Newbern, Justice. Bradley D. Jesson, Chief Justice,

text:
    Chris MARCINKOWSKI d/b/a Marcinkowski Claims Service v. AFFIRMATIVE RISK MANAGEMENT CORPORATION
    95-339
    910 S.W.2d 679
    Supreme Court of Arkansas
    Opinion delivered December 4, 1995

      Bill Luppen, for appellant.

      Friday, Eldredge & Clark, by: James C. Baker, Jr., for appellee.
   David Newbern, Justice.

The issue before us is whether the Pulaski Circuit Court erred in dismissing as untimely an appeal from Little Rock Municipal Court of an order refusing to set aside a default judgment. We hold the appeal should not have been dismissed.

Affirmative Risk Management Corporation (ARM), the appellee, brought a claim against Chris Marcinkowski in Little Rock Municipal Court. Apparently ARM and Mr. Marcinkowski engage in the business of adjusting insurance claims. The action of ARM against Mr. Marcinkowski was for intentional interference with a business expectancy. The complaint alleged that Economy Insurance Company inadvertently notified Mr. Marcinkowski of a claim it intended to have adjusted by ARM and that Mr. Marcinkowski adjusted the claim knowing that it was not intended for him to do so.

The complaint, seeking damages of $3000, was filed August 6, 1993. A default judgment for the full amount sought was entered by the Municipal Court on October 12,1993, although no hearing was held on damages. On October 21, 1993, Mr. Marcinkowski filed an answer to the claim. On November 12, 1993, he moved to have the default judgment set aside and sought a hearing on the reasons for the late answer and the matter of damages awarded in the amount of “$3,000 when the contract was only a $90.00 job.” The motion to set the default judgment aside was denied by the Municipal Court by an order of February 22, 1994.

On March 4, 1994, Mr. Marcinkowski appealed to the Circuit Court the denial of the motion to set aside the default judgment and the refusal of the Municipal Court to hold a hearing on the issue of damages. ARM moved to dismiss the appeal because it was filed more than 30 days from the October 12, 1993 judgment of the Municipal Court. In his brief responding to the motion to dismiss, Mr. Marcinkowski stated:

A hearing was scheduled on February 17, 1994, on Appellant’s motion to set aside the default judgment and for the Appellee to prove his damages. At this hearing the Municipal Court denied Appellant’s motion to set aside the default judgment and refused to hear any evidence concerning Appellee’s alleged damages. It was from this Order that Appellant now appeals. . . . Appellant’s Notice of Appeal from this Order is clearly within the 30 day time limit.

It is clear that Mr. Marcinkowski argued to the Circuit Court that he was appealing from the Municipal Court’s refusal to set aside a default judgment rather than appealing from the judgment and that his appeal from the refusal to set aside was timely.

The Circuit Court held a hearing on ARM’s motion to dismiss the appeal. In the course of the hearing, the Court remarked that the judgment was “bad” because there had been no hearing on damages, and that such a hearing could have been sought in the Municipal Court. The Circuit Court entered an order dismissing the appeal because of failure to appeal the Municipal Court judgment within 30 days from the date of its entry.

In the final paragraph of his brief before this Court, Mr. Marcinkowski states the following:

Appellant’s motion to set aside the default judgment was pursuant to Rule 55(c)(2) of the Arkansas Rules of Civil Procedure which apply to the municipal Court under Rule 10 of the Inferior Court rules. The Circuit Court was in error when it dismissed Appellant’s appeal for being untimely because until February 17, 1994 there was not an appealable order and his Notice of Appeal filed after February was well within the 30 day requirement.

While a part of the argument, including a citation to Sevenprop Assocs. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1988), is to the effect that the Circuit Court’s default judgment was not a final order, another part is obviously that the appeal from the refusal to set aside the judgment was timely. The Circuit Court’s sole stated basis for dismissing the appeal was its lack of timeliness. In these circumstances we need not be concerned with the argument that the judgment was not a final order because we know the reason for the Circuit Court’s action and we have before us Mr. Marcinkowski’s concurrent argument that the appeal to the Circuit Court was timely.

Rule 9(a) of the Arkansas Inferior Court Rules requires that a judgment of a municipal court be appealed within 30 days from the date of entry of the judgment. See Allred v. State, 310 Ark. 476, 837 S.W.2d 469 (1992); Bocksnick v. City of London, 308 Ark. 599, 825 S.W.2d 267 (1992). That rule would control this case if the appeal were from the judgment. It is, however, as noted above, an appeal from the order refusing to set aside the default judgment. None of the Inferior Court Rules applies directly to this situation. Rule 10 provides, “Where applicable and unless otherwise specifically modified herein, the Arkansas Rules of Civil Procedure . . . shall apply to and govern matters of procedure ... in the inferior courts of this State.”

Arkansas R. Civ. P. 55(c) states that, “The court may, upon motion, set aside a default judgment,” and it prescribes the bases for doing so, including, “(4) any other reason justifying relief from the operation of the judgment.” It requires that the party seeking to set such a judgment aside “demonstrate a meritorious defense to the action” unless the judgment is void, in which case no such defense need be stated. No time limit for moving to set aside a default judgment is prescribed in the rule.

Reviews of municipal court decisions in circuit courts are de novo. State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995); Casoli v. State, 297 Ark. 491, 763 S.W.2d 650 (1989). We are tempted to conclude that Mr. Marcinkowski is entitled to no relief because he could have had a complete de novo review of his case had he simply appealed from the Municipal Court judgment instead of filing the belated answer and then moving to set the judgment aside. That, however, would be tantamount to holding that a municipal court defendant who has suffered a default judgment may have no review whatever of a municipal court’s decision on refusal to set aside a default judgment in response to a Rule 55(c) request.

Denial of a motion to set aside a default judgment by a circuit or chancery court is an appealable order. We entertained such appeals, for example, in Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992), and in May v. Bob Hankins Distrib. Co., 301 Ark. 494, 785 S.W.2d 23 (1990). We see no reason to deny such appeals from municipal to circuit courts. To do so would be inconsistent with our allowance of such appeals to the Court of Appeals and to this Court from our courts of general jurisdiction, and we can think of no good reason for such an inconsistency.

The Circuit Court must entertain a timely appeal from denial by the Municipal Court of a motion to set aside a default judgment. The Circuit Court is to conduct a de novo proceeding to determine, in accordance with Ark. R. Civ. P. 55(c) whether relief from the operation of the judgment is justified. If no such relief is justified, the matter is ended. If relief is granted, the case will then be treated as any other de novo review of a municipal court judgment.

Reversed and remanded.

Dudley, J., not participating.

Jesson, C.J., dissents.

Bradley D. Jesson, Chief Justice,

dissenting.

Because the majority is reversing the trial court’s order on a ground not argued on appeal, I must respectfully dissent.

I have no quarrel with the majority’s position that a circuit court must entertain a timely appeal from a denial by a municipal court of a motion to set aside a default judgment filed under Ark. R. Civ. P. 55(c). This rule applies to municipal courts through Rule 10 of the Inferior Court Rules. However, appellant simply does not argue this point for reversal on appeal. He relies instead on Sevenprop Assoc. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1988), in asserting that “[t]he trial court’s decision to dismiss [his] appeal because he did not file his notice of appeal within thirty days of the October 12, 1993, default judgment was wrong because the October 12, 1993, default judgment was not a final order at that time and was not ripe for appeal.” Appellant’s reliance on Sevenprop is misplaced. In that case, the appeal was dismissed under Ark. R. App. R 2 because the issue of damages remained to be tried and the trial court’s refusal to set aside the default judgment as to liability was not a final judgment.

The majority fails to address the appellant’s only real argument that the October 12, 1993, default judgment was not a final order. That order may have been wrong, but it was final. The majority opinion instead reverses on the basis that the trial court erred in dismissing as untimely an appeal to set aside a default judgment under Rule 55(c).

Appellant’s only reference to Rule 55 in his brief in this court is as follows: “Appellant’s motion to set aside the default judgment was pursuant to Rule 55(c)(2) of the Arkansas Rules of Civil Procedure which apply to the Municipal Court under Rule 10 of the Inferior Court Rules.” Rule 55(c)(2) permits the trial court to set aside a default judgment that is void. However, in his motion to set aside the default judgment filed in municipal court on November 12, 1993, appellant requested a hearing “to address reasons as to why an untimely answer was filed as well as to dispute Plaintiff’s damages allegedly incurred of $3000.00 when the contract was only for a $90.00 job.” Nowhere in that motion did appellant even mention Rule 55, much less Rule 55(c)(2).

Points not argued on appeal are waived. Sarkco v. Edwards, 252 Ark. 1082, 482 S.W.2d 623 (1972); Burks Motors v. Int'l Harv. Co., 250 Ark. 641, 466 S.W.2d 943 (1971). See also Shockley v. State, 291 Ark. 251, 724 S.W.2d 156 (1987); Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied 452 U.S. 973 (1981). Under long standing procedure, this court is to consider only arguments raised by the parties, and we are not to consider reversing a trial court for unargued reasons. Schmidt v. Mcllroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991). Because the majority’s decision today runs afoul of this principle, I must respectfully dissent.


author: David Newbern, Justice.

text:
    Charles THOMPSON v. STATE of Arkansas
    CR 95-766
    910 S.W.2d 694
    Supreme Court of Arkansas
    Opinion delivered December 4, 1995

      Robert C. Marquette, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Charles Thompson was convicted of raping his 12-year-old son and sentenced to 40 years’ imprisonment. A younger sister of the alleged victim testified to having observed the rape and to having been a victim herself. Mr. Thompson’s counsel made a pretrial request for the information to which Ark. R. Crim. P. 17.1 entitles a criminal defendant. He contends the Trial Court erred by not declaring a mistrial as the State did not provide him with a statement the sister had made earlier to a police officer and had not provided him with a medical report about her condition. He also contends the sister should not have been allowed to testify about having been a victim because it did not fall within any exception found in Ark. R. Evid. 404(b) which governs admissibility of evidence of other crimes. We affirm because (1) Mr. Thompson was not entitled to the sister’s statement, (2) he has demonstrated no unfair prejudice resulting from failure to provide the medical report, and (3) we allow evidence of child sexual abuse suffered by another child in the same household as that of the alleged victim.

1. The statement and report

During the testimony of the sister it was revealed that she had previously spoken with a police officer who had recorded their conversation. That police officer did not testify, nor was the tape recording of the statement introduced. It also came to light that the prosecutor had in his file in the courtroom a Department of Human Services record of a medical examination of the sister. The report was not offered in evidence, nor was the testimony of the examining physician offered. Counsel sought a mistrial with respect to the statement and again with respect to the medical report and argued, in effect, that the documents could have been used to impeach the children’s testimony. We have no idea what either item contained.

a. The statement

According to Ark. R. Crim. P. 17.1(a)(i) the State is required to furnish to the defendant the names and addresses of its witnesses. The sister’s name was furnished. Subsection (a)(iv) of the Rule also requires that “any reports or statements of experts, made in connection with the particular case, including results of physical . . . examinations” be provided.

No doubt the State was required to give Mr. Thompson the name of a witness to be called against him, and it did so, but he cites nothing to support his apparent claim that the State was required to furnish him with the statement the sister gave to a police officer. He did not seek a continuance to ascertain the contents of the tape recording, and he makes no claim that the sister’s statement was or could have been exculpatory.

Mr. Thompson cites Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985), and argues had he known the sister was to testify that she too was a rape victim, he could have prepared to meet that testimony. In the Lewis case we reversed a conviction not because the State had failed to provide the defendant with the statement of a witness but because the identity of the witness had not been furnished. The case does not stand for the proposition that the State was obliged to furnish Mr. Thompson with a statement made by the sister.

b. The medical report

As to the medical report and the separate motion for mistrial, the argument is that Rule 17.1 specifically requires that such a report be furnished to the defendant. The State inexplicably does not respond. The Trial Court remarked that the State should have furnished the medical report, and we agree. We cannot reverse on the point, however. As the report was not in evidence, we cannot ascertain whether any prejudice resulted from failure of the State to have furnished it to Mr. Thompson.

Defense counsel informed the Trial Court that the prosecutor had a medical report and said “we would like to offer that.” The prosecutor then apparently produced a document and professed confusion as to its nature. It was apparently not marked for identification, admitted into evidence, or mentioned further, except for the Trial Court’s statement that he would let defense counsel read the report.

The only remedy requested by Mr. Thompson was a mistrial. A mistrial is an extreme sanction for a Rule 17.1 violation and is to be avoided unless the fundamental fairness of the trial itself is at stake. Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990); Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 484 U.S. 872 (1987). We will not reverse absent a showing of unfair prejudice. Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied 470 U.S. 1085 (1985).

2. Other crimes

Mr. Thompson moved in limine to exclude anticipated evidence of other crimes on the ground that the evidence is inadmissible according to Ark. R. Evid. 404(b). The ruling on the motion was deferred until presentation of the testimony in question. When the sister testified, the Trial Court admonished the jury to the effect that her testimony about other crimes was to be admitted to show only “motive, opportunity, intent, knowledge, identity and absence of mistake,” apparently quoting the Rule.

Mr. Thompson says the sister’s testimony was inadmissible because the Trial Court failed to conduct a “fact-intensive inquiry” prior to admission of the testimony, citing Baldridge v. State, 32 Ark. App. 160, 798 S.W.2d 127 (1990). There the appellant was convicted of raping his nephew. At trial, his niece was allowed to testify about sexual advances the appellant made toward her. The Court of Appeals affirmed the conviction and held that the testimony was properly admitted because the niece’s testimony was relevant on the issues of opportunity, plan, and motive.

Evidence of other sexual acts with children is admissible when it tends to show a proclivity toward a specific act with a person or class of persons with whom the accused has had an intimate relationship. Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992); Marcum v. State, 299 Ark. 30, 771 S.W.2d 250 (1989); Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). The testimony of other rape victims is relevant in a criminal trial for the rape of an underage victim to show “motive, intent or plan.” Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992).

Affirmed.