author: ROBERT L. BROWN, Justice.

text:
    Mary Lee ORSINI v. STATE of Arkansas
    98-1119
    13 S.W.3d 167
    Supreme Court of Arkansas
    Opinion delivered March 23, 2000

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Annamary Dougherty, Ass’t Att’y Gen., for appellee.
   ROBERT L. BROWN, Justice.

This case involves an allegation of a Freedom of Information Act (FOIA) violation by an inmate at the Women’s Unit of the Arkansas Department of Correction. The inmate, appellant Mary Lee Orsini, contends that the appellees who are officers of the Arkansas Department of Correction as well as the Department itself withheld information vital to her defense at a disciplinary proceeding. Orsini further contends that she was denied a hearing within seven days of her FOIA request, as required by Ark. Code Ann. § 25-19-107(b) (Repl. 1996). We agree that Orsini should have had her request heard by the trial court, and we reverse and remand for a hearing.

On April 11, 1997, Officer Bulah Hampton of the Department charged Orsini with two major disciplinaries — belligerence toward an officer and insolence. She stated in her report that she had beckoned Orsini to come to her, that Orsini had refused to come, that she then gave Orsini a direct order to come, and that Orsini answered that she did not have time for the officer’s “drama.” Orsini next slammed a door which, according to Officer Hampton, hurt her hand.

Officer Felicia Brothers witnessed part of the incident and gave a witness statement on April 16, 1997, in which she indicated that Officer Hampton may have intentionally aggravated Orsini. She referred in her witness statement to “005’s,” which are additional incident reports made by her and which apparently were made at 10:00 a.m. and 3:00 p.m. on the day of the confrontation, according to Orsini’s pleadings.

Orsini was disciplined as a result of Officer Hampton’s charge and had two weeks of privileges revoked. Orsini then began her quest to obtain copies of Officer Brothers’s 005 reports. She first made FOIA requests to Larry Norris, Director of the Department, and to Robert Clark, Internal Affairs/Disciplinary Administrator for the Department. On August 19, 1997, Administrator Clark denied her request and responded that the requested documents were in Orsini’s “institutional jacket and available for [her] review, upon request to the unit records supervisor.” Director Norris never replied. Orsini then made another request to L. Polk, the Records Supervisor. On September 8, 1997, Polk denied the request “due to disciplinaries, not a part of FOIA.”

This denial was followed by Orsini’s appeal to Jefferson County Circuit Court on September 18, 1997. In her appeal, Orsini requested the Brothers 005 reports and other documents used to affirm her disciplinary. She also requested the circuit court to hear her petition within seven days. On October 8, 1997, the Department responded to the appeal to circuit court and stated that Orsini already had the requested documents. On November 4, 1997, and then again on June 18, 1998, Orsini moved the circuit court to set her FOIA request down for a hearing. On July 22, 1998, the circuit court dismissed the Orsini appeal for failure to state a claim. The circuit court’s order of dismissal noted that “defendants have furnished plaintiff with the documents required....”

Orsini claims that she does not have the requested documents. She first contends that the circuit court violated the FOIA by failing to conduct a hearing on her request for public documents, as required by Ark. Code Ann. § 25-19-107(b) (Repl. 1996). Section 25-19-107(b) reads:

(b) Upon written application of the person denied the rights provided for in this chapter, or any interested party, it shall be mandatory upon the circuit court having jurisdiction to fix and assess a day the petition is to be heard within seven (7) days of the date of the application of the petitioner, and to hear and determine the case.

Whether § 25-19-107(b) requires that a hearing be set within seven days of the FOIA request or actually conducted within that time frame is not important to our decision because the circuit court did neither. Clearly, however, this section of the FOIA sets a policy in favor of expeditious hearings on all FOIA requests.

In the case of Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993), this court concluded that an inmate’s file met the definition of a “public record” under Ark. Code Ann. § 25-19-105(a) (Repl. 1996), because it was required to be kept by the director of the Department. See Ark. Code Ann. § 12-27-113(e) (Repl. 1999) and § 25-19-103(1) (Repl. 1996). Furthermore, there is no dispute that the Department is an agency of the state and that it denied Orsini’s FOIA request. See Ark. Code Ann. § 25-19-107(a) (Repl. 1996). Thus, it would appear that Orsini was entitled to a hearing, and none was set or held by the circuit court.

The Department does not address this procedural lapse in its brief. Its sole argument is that Orsini was not entitled to the Brothers 005 reports under Department Regulation 804 and Department Administrative Directive 93-14. This, of course, was not the basis upon which the circuit court dismissed Orsini’s appeal. The Department further contends that the regulation and directive were adopted pursuant to legislative authority, as set forth at Ark. Code Ann. § 12-27-113(e)(1) (Repl. 1999). Section 12-27-113(e)(1) reads:

(1) To protect the integrity of those records [inmate files] and to insure their proper use, it shall be unlawful to permit inspection of or disclose information contained in those records or to copy or issue a copy of all or part of any record to any person so committed except as authorized by administrative regulation or by order of a court of competent jurisdiction. The regulations shall provide for adequate standards of security and confidentiality of records.

We turn first to Regulation 804. This regulation was approved by the Department’s Board on February 17, 1994, and it is on file with the Arkansas Secretary of State. Regulation 804 reads in pertinent part:

1. An offender is entided to inspect his or her offender record pursuant to the Arkansas Freedom of Information Act and subject to the following limitations:
c. Documents of a sensitive or confidential nature and which would cause great harm to third persons if disclosed are exempt from disclosure;

Regulation 804 mentions Administrative Directive 93:14 as a “reference.”

Administrative Directive 93-14 appears to be a policy statement issued by the Department and not a regulation adopted by the Board. It states in part under Section III, F:

F. Exemptions by Inmate Record Organization:
The following is a list of specific forms and/or documentation that may be contained within inmate records and are determined to be exempted from disclosure under the FOIA, other Arkansas codes, and federal law. This serves only as a guide for inmate records while other exemptions may exist.

2. Confidential Reporting of Incidents (005’s)

The distinction between a Board’s regulation and an agency’s directive is an important one. Regulations adopted pursuant to legislative authority are considered to be part of the substantive law of this state. State v. Jones, 338 Ark. 781, 3 S.W.3d 675 (1999). Formally adopted regulations are registered with the Arkansas Secretary of State and are open to public inspection. Ark. Code Ann. § 25-15-204(d)(2) (Repl. 1996). Administrative Directive 93-14, however, has not been adopted by the Board and is not registered with the Secretary of State. Thus, it is not a regulation establishing an exemption as contemplated by § 12-27-113(e)(1). The result is that Administrative Directive 93-14 does not provide an automatic exemption from the FOIA for all 005 reports.

The remaining question then is whether Regulation 804 establishes an exemption for the documents requested. Our law with respect to FOIA exemptions has been often stated:

We liberally construe the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner. Sebastian County Chap. of the Am. Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993); Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992). In conjunction with this rule of construction, we narrowly construe exceptions to the FOIA to counterbalance the self-protective instincts of the government bureaucracy. Byrne v. Eagle, 319 Ark. 587, 892 S.W.2d 487 (1995); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). A statutory provision for nondisclosure must be specific. Ark. Code Ann. § 25-19-105(a) (Supp. 1993); Troutt Bros. v. Emison, 311 Ark. 27, 841 S.W.2d 604 (1992). Less than clear or ambiguous exemptions will be interpreted in a manner favoring disclosure. Troutt Bros. v. Emison, supra; Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).

Arkansas Dept. of Health v. Westark Christian Action Council, 322 Ark. 440, 443, 910 S.W.2d 199, 201 (1995). The burden of proving exemptions to the FOIA rests with the keeper of the requested records claiming the exemption. Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).

Regulation 804 allows inmates to inspect their files subject to certain procedures and so long as the documents are not “of a sensitive or confidential nature which would cause great harm to third persons if disclosed.” This regulation provides an exemption to the FOIA. The circuit court, though, disallowed Orsini’s appeal because it believed that she already had the information requested. According to the State’s brief on appeal, this apparently is not the case. Rather, as already noted, the State contends that the 005 reports were denied because they contained confidential and sensitive information and Administrative Directive 93-14 provided for a specific FOIA exemption.

We hold that a hearing is required under § 25-19-107(b) for the circuit court to determine whether the requested Brothers 005 reports as well as any of the other documents used to affirm the Orsini disciplinary qualify for exemption as sensitive or confidential information under Regulation 804. Such a determination on an exemption may be made by the court in camera. See Gannett River States Publ’g v. Ark. Indus. Dev. Comm’n, 303 Ark. 684, 799 S.W.2d 543 (1990).

Reversed and remanded.

       It is not clear whether Officer Hampton charged Orsini with deliberately slamming the door. Her report reads: “My hand was on the door and the force with which the door was swung injured my hand. I do think this was a deliberate assault, just an infortunate [sic] accident. However, Inmate Orsini #2440 Belligerency/Blatant Display of Insolence wasn’t.”


source: Caselaw Access Project

author: ANNABELLE Clinton Imber, Justice.

license: Public Domain

text:
    CONAGRA, INC. v. Vida STROTHER
    99-1413
    13 S.W.3d 150
    Supreme Court of Arkansas
    Opinion delivered March 23, 2000

      Walmsley & Weaver, by; Tim Weaver, for appellant.

      Comer Boyett, Jr., for appellee.
   ANNABELLE Clinton Imber, Justice.

This is a slip-and-fall case. Vida Strother worked for more than twenty years as a poultry inspector for the United States Department of Agriculture (USDA) at Conagra’s processing plant in Batesville, Arkansas. On March 24, 1994, Ms. Strother had just completed her shift when she went upstairs to the breakroom provided by Conagra for USDA employees, changed into her civilian clothing, stepped “two or three steps” outside the breakroom, and slipped and fell. She fractured her left elbow and injured her lower back and hips as a result of the fall.

Ms. Strother filed a complaint against Conagra in which she alleged that she slipped and fell on the wet tile floor at Conagra and sustained injuries as a result of Conagra’s negligence. Following a jury trial, the jury returned a verdict in favor of Ms. Strother for $125,000 in damages. Conagra appealed the jury’s verdict to the Arkansas Court of Appeals and raised two points of error for reversal: (1) the trial court erred in failing to grant Conagra’s motion for a directed verdict at the close of trial and motion for judgment notwithstanding the verdict (JNOV) after the verdict was returned; and (2) the trial court erred in failing to grant Conagra’s motion for a new trial.

The Court of Appeals found no reversible error and affirmed. Conagra , Inc. v. Strother, 68 Ark. App. 120, 5 S.W.3d 69 (1999). In doing so, the Court of Appeals held that this case did not require analysis under a traditional slip-and-fall theory of recovery. Id. In a petition for review filed in this court pursuant to Ark. Sup. Ct. R. 2-4, Conagra now challenges the decision by the Court of Appeals. Specifically, Conagra contends that the Court of Appeals incorrectly analyzed this case as a hidden-danger case by citing Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998), instead of applying a traditional slip-and-fall theory of recovery upon which the case was submitted to the jury. We granted Conagra’s petition for review. When this court grants a petition to review a case decided by the Court of Appeals, we review it as if it was originally filed in this court. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000); Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998).

For its first point on appeal, Conagra contends that the trial court erred in failing to grant its motion for a directed verdict at the close of the trial and its motion for judgment notwithstanding the verdict after the verdict was returned. In its directed verdict motion and JNOV motion, Conagra raised questions about the sufficiency of the evidence.

In addressing the sufficiency issue, we must first view the evidence in the light most favorable to the party against whom the verdict is sought and give that evidence the highest probative value, taking into account all reasonable inferences that can be derived from it. Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995); Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992). A motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury’s verdict for the party to be set aside. Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). A motion for a directed verdict should be denied when there is a conflict in the evidence or when the evidence is such that fair-minded people might reach different conclusions. Id. Under those circumstances a jury question is presented and a directed verdict is inappropriate. Id.

It is not this court’s province to try issues of fact; we simply examine the record to determine if there is substantial evidence to support the jury verdict. City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000). Substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or another with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture. Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997).

We have stated that a motion for JNOV is technically only a renewal of the motion for a directed verdict made at the close of the evidence. Wheeler Motor Co., Inc. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993). Accordingly, we are also governed by the rule that a trial court may enter judgment notwithstanding the verdict only if there is no substantial evidence to support the jury verdict and the moving party is entitled to judgment as a matter of law. Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999); Schmidt v. Pearson, Evans & Chadwick, 326 Ark. 499, 931 S.W.2d 774 (1996).

The principles that govern slip-and-fall cases have been frequently stated by this court. Those principles are set against the general backdrop that an owner has a duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Morehart v. Dillard Dep’t Stores, supra; Black v. Wal-Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994). To establish a violation of that duty, the plaintiff must prove either: (1) that the presence of a substance upon the floor was the result of the defendant’s negligence, or (2) that the substance had been on the floor for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Wilson v. J. Wade Quinn Co., 330 Ark. 306, 952 S.W.2d 167 (1997); Kelly v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997); Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994) (quoting Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991)). The mere fact that a person slips and falls does not give rise to an inference of negligence. Brunt v. Food 4 Less, Inc., supra.

Consistent with these principles, AMI Civ. 3d 1105 (Revised 1995) sets out the elements a plaintiff must prove in order to prevail in a slip-and-fall case. Thompson v. American Drug Stores, Inc., 326 Ark. 586, 932 S.W.2d 333 (1996). The jury was instructed with the following version of AMI Civ. 3d 1105:

Vida Strother contends that she slipped and fell on greasy water which was present on Defendant Con Agra’s premises. Con Agra owed to Vida Strother a duty to use ordinary care to maintain the premises in a reasonably safe condition.
To establish a violation of this duty, Vida Strother must prove either that the presence of the greasy water upon the floor was a result of negligence on the part of Con Agra; or
That Con Agra knew of the presence upon the floor; or
That the greasy water had been on the floor for such a length of time that Con Agra reasonably should have known of its presence and failed to use ordinary care to remove it.

Conagra forcefully argues that Ms. Strother failed to establish either of the elements required in a slip-and-fall case. In other words, Conagra asserts that Ms. Strother did not prove (1) that the presence of greasy water on the floor was the result of Conagra’s negligence, or (2) that Conagra knew of its presence, or should have known of its presence due to the length of time it was there, and failed to use ordinary care to remove it. We disagree.

Testimony was presented at trial to support Ms. Strother’s claim. Conagra had complete control of the building where Ms. Strother worked as a USDA poultry inspector. The first floor of the Conagra plant had a non-skid floor, whereas the floor covering in the hallway leading to the USDA breakroom on the second floor was tile. Due to the nature of the chicken processing business, it was a common everyday occurrence for greasy water to get on the tile floor in the second floor hallway and make the floor slick. According to Conagra’s plant superintendent, Steve Felts, a great deal of water must be used in the chicken processing business, with the Batesville plant using approximately 630,000 gallons of water to process 120,000 birds in one shift. Under these circumstances, greasy water that collected on the aprons and boots of USDA and Conagra employees would be tracked around the hallways by the employees as they went for coffee breaks. In response to these conditions, Conagra placed safety mats in the hallways where people would be walking. Conagra also established a policy regarding the removal of the safety mats: the safety mats were not to be removed until all employees and USDA inspectors had left the building. On March 24, 1994, when Ms. Strother slipped and fell outside the breakroom, there were no safety mats on the floor and the tile floor was wet.

This testimony collectively constitutes substantial evidence under the first basis for liability in a slip-and-fall case. The jury could readily infer that greasy water was present on the tile floor in the hallway outside the breakroom and that its presence was the result of Conagra’s negligence; that is, as a result of the removal of the safety mats before Conagra and USDA employees had left the building, in violation of company policy, the tile floor became wet and slick.

Conagra suggests that the facts in this case are similar to those in Mulligan’s Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1989). That case, however, is inapposite. In Aultman there was no proof of any foreign substance presented to the jury.

Conagra further contends that Ms. Strother failed to prove how long the substance had been on the floor and cites three cases in support of this argument — Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993); Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991); and Johnson v. Arkla, 299 Ark. 379, 771 S.W.2d 782 (1989). This argument, however, relates to the elements of proof under the second basis for liability in a slip-and-fall case — that the defendant either knew a substance had been on the floor, or should have known of its presence due to the length of time it was there, and failed to use ordinary care to remove it. Conagra fails to acknowledge that there are two separate and distinct bases for liability and that the plaintiff in a slip-and-fall case need only prove one of those bases in order to prevail. We have already concluded that there is substantial evidence to support the jury verdict under the first basis for liability — that the presence of the greasy water on the tile floor was the result of Conagra’s negligence. Thus, we need not address the sufficiency of the evidence under an alternative basis for liability.

Finally, Conagra suggests that the trial court erred when it applied the analysis contained in the case of Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998), in determining whether to grant Conagra’s motion for JNOV Similarly, Conagra contends in its petition for review that the Court of Appeals also erred when it analyzed this case as a hidden-danger case by citing Heigle v. Miller, supra. While the facts in both cases appear to be similar, we agree that Heigle is nonetheless inapposite. We concluded in Heigle that the trial court erroneously granted the defendant’s motion for summary judgment because there was an issue of disputed facts concerning the defendant’s duty to warn the plaintiff-licensee of hidden dangers. In contrast, this case involves a challenge to the sufficiency of the evidence for a jury award based on slip-and-fall jury instructions, i.e., AMI Civ. 3d 1105. Under these circumstances, the trial court should have confined its analysis regarding the sufficiency of the evidence to the theory of liability upon which the case was submitted to the jury.

We must therefore determine whether the trial court’s incorrect legal analysis is reversible error. The issue here is whether the trial court properly denied Conagra’s motion for JNOV. We have already concluded that there is substantial evidence to support the jury verdict under the first basis for liability set out in AMI Civ. 3d 1105. If denying Conagra’s motion JNOV was the proper action to take, that action does not become reversible error simply because the trial court gave the wrong reason for taking it. Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985); Martin v. Blackmon, 277 Ark. 190, 640 S.W.2d 435 (1982).

For these reasons, we hold that no prejudice resulted from the trial court’s erroneous application of the hidden-danger analysis contained in Heigle v. Miller, supra. When the evidence is viewed in a light most favorable to the appellee, Ms. Strother, we agree that sufficient evidence existed to allow the case to proceed to the jury on a traditional slip-and-fall theory of recovery, and consequently, we cannot say that the trial court erred in denying Conagra’s motion for JNOV.

For its second point on appeal, Conagra argues that the trial court erred in failing to grant its motion for new trial. Conagra submitted a post-trial motion in which it again challenged the sufficiency of the evidence to stxpport the verdict and challenged the trial court’s decision to allow Ms. Strother to introduce evidence concerning the presence of water on the floor at times other than when she slipped and fell on March 24, 1994. Prior to trial, the trial court had granted Conagra’s motion in limine to exclude testimony about other times when water was on the floor and instructed Ms. Strother to confine the evidence to the date of the accident. However, at trial she introduced testimony concerning the daily presence of greasy water in the area and the presence of safety mats. Over Conagra’s objection, the trial court admitted the testimony for the limited purpose of establishing that Conagra had notice of the floor’s condition.

We have noted that a motion in limine is a threshold motion. Nolen v. State, 278 Ark. 17, 643 S.W.2d 257 (1982). We have also held that the trial judge is at liberty to reconsider his or her prior rulings during the course of a single trial. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); HUI v. State, 276 Ark. 300, 634 S.W.2d 120 (1982). Thus, the trial court’s initial ruling on Conagra’s motion in limine was a threshold ruling subject to reconsideration and change as the evidence was more fully developed at trial. Clearly, the trial court was convinced by the presentation of evidence to modify its earlier ruling and allow testimony about the daily presence of greasy water on the floor and the presence of safety mats for the limited purpose of establishing that Conagra had prior notice that such a condition existed. We will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998); Smith v. Galaz, 330 Ark. 222, 953 S.W.2d 576 (1997). We cannot say that the trial court abused its discretion when it admitted the testimony for the limited purpose of establishing that Conagra had prior notice that the floor outside the breakroom would become wet and slick upon removal of the safety mats.

Affirmed.

       The Fourth Edition of Arkansas Model Jury Instructions - Civil, published in 1999, changed the number of this instruction to AMI Civ. 4th 1106.


author: LAVENSKI R. SMITH, Justice. TOM GLAZE, Justice,

text:
    Ron OLIVER, President, First Arkansas Bail Bonds, Inc. v. PULASKI COUNTY CIRCUIT COURT; Arkansas Professional Bail Bond Company and Professional Bail Bondsman Licensing Board, Interveners; Jamie Mann and Affordable Bail Bonds, Inc., Interveners
    00-33
    13 S.W.3d 156
    Supreme Court of Arkansas
    Opinion delivered March 23, 2000

      Gruber Law Firm, by: Wayne A. Gruber, for petitioner.

      Mark Pryor, Att’y Gen., by: Larry E. Crane, Ass’t Att’y Gen., for interveners Arkansas Professional Bail Bond Company and Professional Bail Bondsman Licensing Board.

      Lueken Law Firm, by: Patty W. Lueken, for interveners Jamie Mann and Affordable Bail Bonds, Inc.
   LAVENSKI R. SMITH, Justice.

Petitioner, Ron Oliver, along with Interveners, Arkansas Professional Bail Bond Company (“Arkansas Professional”) and the Professional Bail Bondsman Licensing Board (“the Board”), seek a Writ of Prohibition against the Pulaski County Circuit Court. Oliver contends that the court exceeded its authority in issuing several subpoenas duces tecum after having remanded the matter to the Board for additional evidentiary development. Intervener Jamie Mann and his employer, Affordable Bail Bonds, Inc. (“Affordable”), contest the issuance of the writ. We have jurisdiction of this case pursuant to Arkansas Supreme Court Rule 1-2 (a) (3). Petition denied.

Facts

This dispute arises out of an underlying disciplinary action before the Board. The Baxter County Sheriff filed a complaint in 1997 against Affordable and Mann. The complaint alleged that they had violated several provisions of the Bail Bondsman Licensing laws, codified at Ark. Code Ann. § 17-19-101 et. seq., as well as the rules and regulations promulgated by the Board regulating the profession. The Board held a hearing on October 24, 1997. On November 12, 1997, the Board issued its decision finding that Mann and Affordable had indeed violated several provisions of the Bail Bondsman Licensing statutes. The Board suspended Mann’s license for a total of eight months for violations in two separate incidents in which Mann participated. The Board also fined Affordable $2,500 and suspended the company’s operating license for sixty days for one of the incidents.

Pursuant to Ark. Code Ann. § 17-19-209(g) (Supp. 1997), Mann and Affordable appealed to the Pulaski County Circuit Court for a de novo review of the Board’s decision. Before the circuit court could hear the matter, the Arkansas Legislature enacted Act 1477 of 1999. This Act, codified at Ark. Code Ann. § 17-19-209(g), eliminated the right for a de novo review in the circuit court of the Board’s decisions. Instead, the legislature required that all appeals from the Board be reviewed pursuant to the Arkansas Administrative Procedures Act (“APA”), codified at Ark. Code Ann. § 25-15-101 et seq. Based upon this change in the law, the Board argued to the circuit court that the circuit court was bound by the record from the underlying Board hearing. They contended the amendment to the law would apply immediately because the change was procedural rather than substantive in nature. Mann and Affordable objected, arguing that it would be prejudiced by retroactive application of the new law. They asserted that the existence of a de novo review by the circuit court influenced their trial strategy before the Board. Mann and Affordable argued that if the amended manner of review applied, they should be entitled to a remand to develop the record thoroughly before the Board prior to appellate review. In addition, Mann and Affordable argued that evidence of bias of one of the Board members had not been developed before the Board. On September 15, 1999, the circuit court in an agreed order found that the amended manner of review would apply to the case in accordance with the APA. However, the court then remanded the case to the Board for further proceedings to permit Mann and Affordable to develop the factual record. In doing so, the circuit court analogized Mann’s and Affordable’s argument to an application to present additional evidence pursuant to Ark. Code Ann. § 25-15-212(f), which allows the circuit court to order the Board to take additional evidence and modify its decision accordingly. The circuit court ordered that the case be remanded “for proceedings consistent with” Ark. Code Ann. § 25-15-212(f).

Following the remand order, Mann and Affordable apparently suspected a potential conflict with one of the Board members hearing the case. Mann and Affordable believed that the Board member, Charles Pearson, had been an owner or stockholder at Oliver’s company, First Arkansas Bail Bonds (“First Arkansas”). First Arkansas was Affordable’s only local competition. As such, Mann and Affordable wished to take Oliver’s deposition to develop this information prior to the Board hearing on remand. They intended to show that Pearson held a pecuniary interest in voting for Mann’s and Affordable’s suspension. To compel this deposition, Mann and Affordable sought and received an order from the circuit court to depose Oliver. The circuit court issued a subpoena duces tecum on September 23, 1999, eight days after the circuit court remanded the matter to the Board for a new hearing. Mann filed notice of the Oliver deposition with the Pulaski County Circuit Clerk on January 10, 2000. Oliver moved to quash the deposition, and the circuit court denied the motion. Oliver filed his petition for writ of prohibition in this court on January 11, 2000. Oliver also filed an Application for Temporary Relief to stay all further action relating to the deposition pending a decision on his prohibition petition. In a per curiam decision delivered on January 20, 2000, this court requested that the parties brief the issues. We stayed Oliver’s deposition pending the outcome of the matter, and also allowed Mann and Affordable, as well as Arkansas Professional and the Board, to intervene in the appeal.

Standard of Review

While Oliver filed this matter as a petition for writ of prohibition, it is apparent that the petitioner is actually seeking a writ of certiorari. The remedy Oliver seeks in quashing the subpoena is directed towards an action already taken by the circuit court as opposed to some prospective action. A writ of prohibition will not lie for actions already taken. We recently listed the requirements for a writ of prohibition in Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000), where we stated:

A writ of prohibition is extraordinary relief which is appropriate only when the trial court is wholly without jurisdiction. Henderson Specialties, Inc. v. Boone County Circuit Court, 334 Ark. Ill, 971 S.W.2d 234 (1998); Nucor Holding Co. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). The writ is appropriate only when there is no other remedy, such as an appeal, available. Henderson Specialties, Inc. v. Boone County Circuit Court, supra; West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994) (quoting National Sec. Fire & Cas. Co. v. Poskey, 309 Ark. 206, 828 S.W.2d 836 (1992)). When deciding whether prohibition will he, we confine our review to the pleadings in the case. The Wise Company, Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993); State v. Circuit Court of Lincoln County, 336 Ark. 122, 125, 984 S.W.2d 412, 414 (1999). We have further held that we do not issue a writ of prohibition for something that has already been done. Holmes v. Lessenberry, 297 Ark. 23, 759 S.W.2d 37 (1988) (per curiam).

The writ of certiorari, unlike prohibition, can address actions already taken by the lower court. We stated our approach to this issue in the recent case of Arkansas Public Defender Comm. v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000). There we pointed out that when circumstances warrant, we will treat a petition for writ of prohibition as though it were correctly filed as a petition for writ of certiorari. We stated:

We hold that although the Commission has sought a writ of prohibition, a writ of certiorari is the more appropriate remedy. A writ of prohibition cannot be invoked to correct an order already entered, and where, as here, the lower court’s order has been entered without or in excess of jurisdiction, we carve through the technicalities and treat the application as one for certiorari. Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994). A writ of certiorari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998). These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Id.

Burnett, 340 Ark. at 236.

In sum, we will grant a writ of certiorari only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Cooper Communities, Inc. v. Benton County Circuit Court, 336 Ark. 136, 984 S.W.2d 429 (1999). It is not to be used to look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of facts, or to reverse a trial court’s discretionary authority. Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992).

The Trial Court’s Jurisdiction

On appeal, Oliver contends that the circuit court lacked jurisdiction to subpoena him and his records for a deposition once that court remanded the matter to an administrative board. Oliver argues that an appellate court loses jurisdiction after issuance of its mandate or after remand. As such, the Board, not the circuit court, has the authority to issue subpoenas when it has the case. Interveners Arkansas Professional and the Board support this argument, and also contend that jurisdiction cannot lie in two tribunals at the same time. These interveners also argue that the Board has the power to issue subpoenas, and Mann and Affordable could have conducted discovery under jurisdiction of the Board prior to the hearing on remand. To the contrary, Mann and Affordable argue that a writ of prohibition is not the appropriate remedy here because the proof sought from Oliver in his deposition has to do with a procedural matter over which the circuit court maintains jurisdiction. Mann and Affordable argue that the type of remand contemplated in Ark. Code Ann. § 25-15-212(f) allows the circuit court to retain jurisdiction over the matter while the Board hears additional evidence and modifies its decision if necessary. Mann and Affordable further argue that Ark. Code Ann. § 25-15-212(g) allows the circuit court to retain jurisdiction when alleged procedural irregularities exist before the agency.

Oliver argues that the circuit court in the administrative-appeals process is analogous to an appellate court. Hence, just as an appellate court’s jurisdiction ends with the issuance of a mandate or upon remand, so would the circuit court’s. See Cooper Communities, supra; First Pyramid Life Ins. Co. v. Stoltz, 312 Ark. 516, 849 S.W.2d 525 (1993); Brimson v. Brimson, 228 Ark. 562, 309 S.W.2d 29 (1958). This general rule would seem to support Oliver’s argument that once the circuit court remanded the case to the Board, it lost all jurisdiction to issue the subpoena duces tecum to Oliver, as then only the Board had the authority and power to issue the subpoena. However, the circuit court’s role as a reviewing court of administrative appeals is not the same as that of an appellate court. Mann and Affordable argue that Ark. Code Ann. § 25-15-212(1), the statutory section to which the circuit court referred in its remand order, actually allows the circuit court to retain jurisdiction. We agree. Ark. Code Ann. § 25-15-212(1) states:

(f) If before the date set for hearing, application is made to the court for leave to present additional evidence and the court finds that the evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon any conditions which may be just. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.

It was under this section of the APA that the circuit court remanded the matter to the Board after the parties agreed that the circuit court no longer could conduct a de novo review of the Board’s original proceeding but instead must follow the APA requiring the circuit court to conduct an appellate review of the Board’s proceedings. Ark. Code Ann. § 25-15-212(f) contemplates a reservation of jurisdiction in the reviewing court in that it expressly requires that upon remand the agency “shall file that evidence and any modifications, new findings, or decisions with the reviewing court.” A remand ends a proceeding before an appellate court, and it has nothing further to do. Here, however, the circuit court remains a reviewing court and retains continuing jurisdiction over the appeal. After the board completes its action, the circuit court may then proceed with its consideration of the appeal on the merits. See Hickory Hills Limited Partnership, et. al., v. Secretary of State of Maryland, 84 Md.App. 677, 581 A.2d 834 (1990); See also, Rosecky v. Illinois Department of Public Aid, 147 Ill.App.3d 608, 511 N.E.2d 167 (1987). We also note that Ark. Code Ann. § 25-15-214 authorizes the Pulaski County Circuit Court to command agencies failing or refusing to act to the injury of any person or their property to do so where the agency acts unlawfully, unreasonably, or capriciously. This authority would seem to apply to any stage of the proceedings.

We hold that the petitioner has fallen short in establishing that there has been a plain, manifest, clear, and gross abuse of discretion without any other remedy such as appeal. Nor has petitioner shown that the circuit court is wholly without jurisdiction. On the record before us, we cannot say that the trial court exceeded its jurisdiction in issuing subpoenas to Oliver.

Petition denied without prejudice.

Glaze and Brown, JJ., concur.

TOM GLAZE, Justice,

concurring. I concur. The intervenors, Jamie Mann and Affordable Bail Bonds, Inc., received an adverse decision from the Professional Bail Bondsman Licensing Board and appealed that decision to circuit court, which subsequently remanded to the Board for additional evidence. Although the Board had authority, Ark. Code Ann. § 17-19-209 (f)(Supp. 1999), to issue subpoenas to compel attendance of witnesses and the production of evidence, interveners obtained their subpoenas from the circuit court that had remanded their case to the Board. Interveners issued subpoenas for Ron Oliver, Board member Charles Pearson, and two Board employees. Through these witnesses, interveners sought to challenge Pearson’s qualifications to serve on the Board. Oliver and the Board asked the circuit court to quash the subpoenas, stating (1) the court had no jurisdiction to issue subpoenas after it remanded the case to the Board, (2) the Board had no authority to hear questions bearing on a member’s qualifications, and (3) similar to point (2), Pearson’s credentials could not be attacked in a proceeding before the Board.

It appears clear from the record that the Board had no intention of issuing subpoenas to allow interveners to present or proffer testimony on why they believed Pearson should not sit as a Board member at a scheduled hearing of their case. It has long been settled that the law never requires the performance of a vain and useless act. Leggett v. Kirby, 231 Ark. 576, 331 S.W.2d 267 (1960). Since interveners were made aware that the Board’s position was that it had no authority to allow interveners to question Pearson’s credentials, they were compelled to seek relief from the court.

Ark. Code Ann. § 17-19-209(d)(3) (Supp. 1999) specifically provides the circuit court with authority to enforce the Board’s subpoenas, and Ark. Code Ann. § 17-19-209(g) permits a party to appeal to the circuit court any order of the Board as a matter of right. Ark. Code Ann. § 17-19-209(c) also provides that Board hearings shall be conducted in the same manner as those under the Arkansas Administrative Procedure Act (APA), and the APA provides under Ark. Code Ann. § 25-15-214 (Repl. 1996), as follows:

In any case of rule making or adjudication, if an agency shall unlawfully, unreasonably, or capriciously fail, refuse, or delay to act, any person who considers himself injured in his person, business, or property by the failure, refusal, or delay may bring suit in the [circuit] court of any county in which he resides or does business, or in the [Circuit] Court of Pulaski County for an order commanding the agency to act.

As is obvious from a reading of the provisions above, the circuit court’s jurisdiction may be invoked for a number of reasons after the court remands a case to an agency or board for a hearing. In the unique circumstances presented here, interveners called upon the circuit court to obtain subpoenas.

While I join the majority opinion in denying a writ of certiorari in these circumstances, I do not read the court’s opinion to permit a party to circumvent the procedures set out in § 17-19-209 when they seek subpoenas or other evidence. Once again, the Board here effectively prevented the Interveners from utilizing § 17-19-209 by disclaiming any authority to issue subpoenas in this case or to hear questions bearing on a Board member’s qualifications. While the Board might eventually prevail in its arguments, such points must necessarily be presented on appeal.

Brown, J., joins this concurrence.

        Oliver v. Pulaski County Circuit Court, 340 Ark. 199, 8 S.W.3d 35 (2000).

       We note that although the language in §214 mentions the chancery court that the case of Harber v. Rhodes, 248 Ark. 1188, 455 S.W.2d 926 (1970), declared the section unconstitutional as to the chancery court, but the remainder of the language would still be applicable to the circuit court.

       Section 25-15-214 is codified as reading “may bring suit in the chancery court,” but the designation of chancery court was held unconstitutional, and this court held it was appropriate to transfer such matters to circuit court. See Harber v. Rhodes, 248 Ark. 1188, 455 S.W.2d 926 (1970).


author: PER CURIAM.

text:
    Sanford BUCHANAN v. STATE of Arkansas
    CR 00-271
    12 S.W.3d 638
    Supreme Court of Arkansas
    Opinion delivered March 23, 2000

      Steve J. Jackson, for appellant.
    No response.
   PER CURIAM.

Appellant Sanford Buchanan, by and through his attorney, has filed a motion for rule on the clerk. The motion reflects that the record on appeal was due to be filed on March 1, 2000, but that it was not tendered until March 3, 2000. Appellant’s attorney, Steve J. Jackson, admits responsibility for tendering the record late.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam) (citing Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam)).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).


text:
    Vincent James HUSSEY v. STATE of Arkansas
    CR 00-269
    20 S.W.3d 271
    Supreme Court of Arkansas
    Opinion delivered March 23, 2000

      G.B. “Bing” Colvin, III, for appellant.
    No response.
   PER CURIAM.

Petitioner, Vincent James Hussey, by his attorney, G. B. “Bing” Colvin, III, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964 (1979) (per curiam).

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


author: Donald L. Corbin, Justice.

text:
    SIMMONS FIRST BANK of Arkansas v. BOB CALLAHAN SERVICES, INC.
    99-181
    13 S.W.3d 570
    Supreme Court of Arkansas
    Opinion delivered March 30, 2000
    [Petition for rehearing denied May 11, 2000.  ]

      Peel & Simmons, P.A., by: John R. Peel, for appellant.

      James R. Wallace & Associates, by: James R. Wallace, for appellee/cross-appellant.

       GLAZE, J., not participating.

   Donald L. Corbin, Justice.

This case involves an issue of first impression regarding the priority of liens as between a general contractor and a bank. Appellant Simmons First Bank of Arkansas (Simmons) appeals the judgment of the Pulaski County Chancery Court awarding $250,528.05, plus interest, from a foreclosure sale to Appellee Bob Callahan Services, Inc. (Callahan). There are four points on appeal and one point on cross-appeal. Resolution of these issues requires our interpretation of the laws regarding mechanics’ and materialmen’s liens. See Ark. Code Ann. §§ 18-44-101 to -135 (1987 and Supp. 1999). Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2 (b)(1) & (6). We reverse and remand on appeal, but affirm on cross-appeal.

The record reflects that Doyle and Barbara DeWoody purchased a health club in North Little Rock by warranty deed dated May 26, 1994. On October 26, 1995, the DeWoodys executed and delivered to Appellant Simmons, then doing business as First Bank of Arkansas, a mortgage on the health-club property in the amount of $1,200,000.00. The mortgage was recorded on October 27, 1995, and reflects that it was executed for “personal purposes.” Sometime in late 1995, Appellee Callahan, a general contractor, entered into a contract with the DeWoodys to perform certain construction and remodeling to their health club. The first phase of the work was completed pursuant to a written contract dated November 30, 1995, which provided for a fixed fee of $135,403.34. The second phase of the work was completed on a cost-plus basis, whereby Callahan hired the necessary subcontractors, materialmen, and laborers to construct improvements to the building. Callahan began work on the second phase of construction on January 4, 1996, and the construction was completed on August 8, 1996. Callahan and its employees furnished materials and labor to the DeWoodys as the general contractor for the total price of $979,476.62. Over the course of the construction, Callahan received payments from the DeWoodys totaling $523,080.00, leaving an unpaid balance of $456,396.62. The DeWoodys subsequently defaulted in their obligations under the mortgage and filed for bankruptcy.

Callahan filed suit on August 30, 1996, to foreclose its materialmen’s lien for the labor, materials, and services provided. Simmons filed a counterclaim, asserting that its mortgage was entitled to priority over Callahan’s lien. The chancellor found that Callahan’s lien had priority on the basis that the mortgage, although filed before the construction began, failed to put anyone on notice that it was executed for the purpose of funding the construction, as provided in section 18-44-110(b)(l). The chancellor found further that Callahan’s lien was superior to the mortgage even though the improvements to the health club were not removable. Thus, the chancellor concluded that Callahan was entitled to foreclose on the DeWoodys’ property to satisfy its lien. The property was purchased at foreclosure sale by Simmons for the sum of $1,225,000.00. The proceeds of the sale were distributed first to Callahan, in the amount of $250,528.05, and then to Simmons. This appeal followed.

Simmons does not contest the validity of Callahan’s lien, nor does it contest that the lien was properly perfected. The central point on appeal involves the chancellor’s determination of the priority of the respective liens. We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Myrick v Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999); Western Foods, Inc. v. Weiss, 338 Ark. 140, 992 S.W.2d 100 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. Similarly, we review issues of statutory construction de novo, as it is for this court to decide what a statute means. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999); State v. Farm Credit Servs., 338 Ark. 322, 994 S.W.2d 453 (1999). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. With these standards in mind, we discuss the issue of priority of the liens.

Simmons argues that the chancellor erred in ruling that Callahan’s hen had priority over its mortgage as to the entire health-club property. Simmons asserts that when the General Assembly passed Act 1298 of 1995, thereby amending the law of materialmen’s hens, it intended to provide priority of such liens only in situations where the constructed improvement is removable. In the event the improvement is not removable, Simmons argues, the entire property should be foreclosed upon with the sale being subject to any prior encumbrance on the property. In short, Simmons contends that under section 18-44-110(b) a materialmen’s Hen enjoys priority over a mortgage only insofar as the improvements are removable.

We construe lien statutes strictly, as they are a derogation to the common law. BB & B Constr. Co. v. F.D.I.C., 316 Ark. 663, 875 S.W.2d 48 (1994). Strict construction means narrow construction and requires that nothing be taken as intended that is not clearly expressed. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998). The doctrine of strict construction is to use the plain meaning of the language employed. Id. Nevertheless, even when statutes are to be strictly construed, they must be construed in their entirety, harmonizing each subsection where possible. Id.

As amended by Act 1298, section 18-44-110(b)(l) provides:

The liens for labor performed or materials or fixtures furnished, as provided for in this subchapter, shall attach to the improvement on which the labor was performed or the materials or fixtures were furnished in preference to any encumbrance existing on the real estate prior to the commencement of construction or repair of the improvement. In all cases where the prior encumbrance was given for the purpose of funding construction or repair of the improvement, that lien shall have priority over all liens given by this subchapter. [Emphasis added.]

It is clear from the plain language of this provision that the material-men’s lien attaches to the improvement and enjoys priority over all prior encumbrances on the real estate except those given for the purpose of funding the construction. Simmons concedes that the mortgage it held on the DeWoodys’ property was not a construction mortgage as described in subsection (b)(1). Notwithstanding, Simmons contends that its mortgage retains priority over Callahan’s lien because the improvements made to the DeWoodys’ property are not removable. We disagree.

Prior to the 1995 amendments, the statutes provided that the improvement had to be removable for the materialmen’s lien to have priority over a prior encumbrance on the property. See BB & B Constr. Co., 316 Ark. 663, 875 S.W.2d 48. Former section 18-44-130 provided that “[a]ny person enforcing the lien may have the building, erection, or improvement sold under execution, and the purchaser may remove it within a reasonable time after sale.” (Emphasis added.) That section was repealed by Act 1298. As it stands now, section 18-44-110(b)(2) provides the means for enforcing material-men’s liens:

The liens, as provided for in this subchapter, shall be enforced by foreclosure, as further provided for in this subchapter, and the property ordered sold subject to the lien of the prior encumbrance on the real estate. [Emphasis added.]

As can be seen from this language, there is no longer a requirement that the improvement be removable for the materialmen’s lien to be enforced. This notion is further evident from the recommendations made by the legislative task force created by Act 970 of 1993.

Act 970 provided that the duty of the task force was to examine existing laws concerning materialmen’s liens and to determine whether the public and the industry were adequately protected. In its Final Report, the task force recommended that the materialmen’s lien “should generally be subordinate to encumbrances on the real estate which pre-date the improvement, but have priority as to the improvement itself.” Final Report of the Arkansas Task Force on Materialmen’s Lien and Bonding Notice Requirements, at 11 (November 1994) (emphasis added). The task force recommended eliminating the requirement that the improvement be removable, as it concluded that removability was impossible in most cases. In its place, the task force urged the legislature to “authorize the lienholder to foreclose the hen and force a sale of the property subject to the prior encumbrance in those cases where removal of the improvement is impracticable.” Id. at 12. Notably, there was no recommendation that the priority status of the materialmen’s lien be conditioned on the removability of the improvement, as Simmons urges.

We thus reject Simmons’s interpretation of Act 1298. Were we to accept its argument, we would be effectively rendering superfluous and meaningless the provision in section 18-44-110(b)(1) that the materialmen’s Hen on the improvement has preference over any prior encumbrance other than one given for the purpose of funding the construction. There is simply no indication from that section that the priority of the materialmen’s lien is dependent upon the improvement being removable. The question then is whether, practically speaking, the priority of the material-men’s lien on the improvement may be enforced by foreclosure sale of the entire property. We conclude that the only way to adequately protect the competing interests is to require the chancery court to conduct a double appraisal of the property, determining the value of the property prior to construction of the improvement and the value of the property with the improvement.

This method is best illustrated by the case law of the Supreme Court of Alabama. Similar to our section 18-44-110, the statutory law of Alabama provided that as to the building or improvement, materialmen’s liens were given priority over all other liens, mortgages, or encumbrances, whether executed before or after construction began. See Empire Home Loans, Inc. v. W.C. Bradley Co., 241 So. 2d 317 (Ala. 1970); Baker Sand & Gravel Co. v. Rogers Plumbing & Heating Co., 154 So. 591 (Ala. 1934). Enforcement was also by means of foreclosure sale. Id. The dilemma faced by the Alabama court was how to adjust the proceeds of the sale in a way that gave the materialmen’s lien priority as to the improvement while simultaneously giving priority to the bank as to the real estate. The solution was to sell the entire property and distribute the proceeds in an equitable manner. The court held:

On principle as well as the authority of our former decisions, we hold the court of equity has plenary power to mold its decrees in such form as to conserve the equities of all parties; and may, when a removal of the building would, in large measure, operate a destruction of the security, order a sale of the property as a whole, adjusting priorities in the proceeds on equitable principles.

Id. at 597 (citations omitted). We believe that this approach best implements our current statutory scheme.

Section 18-44-101 provides that every contractor who supplies labor, materials, or services shall have a lien upon the improvement and up to one acre of land, or to the extent of the number of acres upon which improvement has been made. Section 18-44-110(b)(l) provides that the materialmen’s lien attaches only to the improvement, and thus enjoys priority over prior encumbrances on the property only as to the value of the improvement. Subsection (b)(2) provides that the means of enforcing a materialmen’s lien is foreclosure of the entire property, subject to the prior encumbrance on the land. To give meaning to each of these provisions, the chancery court must determine the value of the improvement using the double-appraisal method.

Accordingly, we reverse and remand this matter to the chancery court to conduct a double-appraisal of the property, determining the value of the property both with and without the improvement. Pursuant to its plenary powers in equity matters, the chancellor shall then distribute the proceeds of the sale, first to Callahan for the value of the improvement and the remainder to Simmons. See Ark. Code Ann. § 16-13-304(a) 8c (c) (Repl. 1999); Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920). Because we reverse on this point, it is not necessary to reach the merits of the remaining points on appeal. We note, however, that our holding today should not be extended beyond the particular facts of this case, as we are mindful of certain situations, i.e., where the mortgage on the property is not in default, that may require distinct analysis. We turn now to the point raised by Callahan on cross-appeal.

For its cross-appeal, Callahan argues that the chancellor erred in denying an award for (1) its direct payroll costs and (2) the amount of time spent on the construction job by Bob Callahan, individually. The order reflects that the chancellor did not award the requested payroll amount, $10,088.00, because there was insufficient evidence to show that the employees named actually performed the labor on the DeWoody project. The order also reflects that the amount requested for Bob Callahan’s labor was not included in the award because the amount testified to was speculative. We cannot say that the chancellor’s findings were clearly erroneous.

Regarding its direct payroll costs, Callahan has failed to sufficiently abstract the record on this issue. Specifically, Callahan has failed to abstract the individual time sheets that it claims indisputably show that the $10,088.00 payroll figure represents the employees’ time spent exclusively on the DeWoody project. Accordingly, we affirm the chancellor’s ruling on this issue. It is the appellant’s burden to abstract the record to demonstrate error, and this court will not go to the record to determine whether reversible error occurred. McPeek v. White River Lodge Enters., 325 Ark. 68, 924 S.W.2d 456 (1996). Of course, the same rule applies to cross-appellants. Id.

We further conclude that it was not error to deny the labor claimed by Bob Callahan. At trial, Bob testified that he did not keep time sheets for his work. Rather, he stated that he called in his time to his office each day, and that his office staff would write down the information. He did not produce any such daily records made by his office staff. Instead, he introduced a summary sheet of his time, indicating that he had spent 623 hours on the DeWoody project at $35.00 per hour, for a total of $21,805.00. He admitted, however, that he had previously only requested payment of $9,467.50 for his labor on the job. Given his contradictory testimony, we cannot say that the chancellor erred in finding that the amount of labor expended by Bob on the project was speculative. We give due deference to the superior position of the chancellor to determine the credibility of witnesses and the weight to be accorded to their testimony. Myrick, 339 Ark. 1, 2 S.W.3d 60. We thus affirm the chancellor’s ruling on this point.

Reversed and remanded on appeal; affirmed on cross-appeal.

GLAZE, J., not participating.

       It is not clear from the record how much land is at issue here. The record reflects, however, that the lien and the mortgage are coextensive, as both describe the property as: “Lot 9, Block 1, McCain Commercial Park Addition to the City of North Little Rock, Pulaski County, Arkansas.”

       Alabama law currently provides priority for materialmen’s liens over other prior encumbrances only insofar as the improvement is removable. See Ala. Code § 35-11-211 (Repl. 1991).


author: RAY THORNTON, Justice.

text:
    ARKANSAS BANKERS LIFE INSURANCE COMPANY v. Randy TOMERLIN
    99-1489
    13 S.W.3d 581
    Supreme Court of Arkansas
    Opinion delivered March 30, 2000
    [Petition for rehearing denied May 4, 2000.]

      Gibson & Hashem, P.L.C., by: Hani W. Hashem, for appellant.

      Hodges & Hodges, by: David Hodges, Jr., for appellee.
   RAY THORNTON, Justice.

Appellee and his father purchased a vehicle in 1988. In addition to the vehicle, the parties purchased credit-life insurance from appellant so that in the event of death, the debt on the car would be discharged. In 1991, appellee’s father died and the vehicle was later repossessed and sold. Following the trial, a deficiency judgment was entered against appellee. Appellee then filed a third-party complaint against appellant seeking payment pursuant to the credit-life insurance policy. We conclude that the trial court abused its discretion when it allowed appellee to file a third-party complaint after judgment had been entered in the underlying suit and erred when it denied appellant’s motion to strike appellee’s third-party complaint.

On December 16, 1988, appellee, Randy Tomerlin and his father, Hugh Tomerlin, purchased a 1989 Ford truck from Ryburn Motor Company in Monticello. The truck was financed by Ford Motor Credit Company in the names of “Hugh Tomerlin or Randy Tomerlin as buyers.” The purchase was recorded on a standardized Arkansas “vehicle retail installment contract.” The Tomerlins also purchased credit-life and credit-disability insurance on the truck. On the retail installment contract, Hugh Tomerlin was listed as the proposed insured, and the contract was signed by both Randy and Hugh Tomerlin. Appellant, Arkansas Bankers Life Insurance Company, issued a policy for credit-life and credit-disability on the purchase, naming Randy Tomerlin as the insured.

On August 18, 1991, Hugh Tomerlin died. Appellee did not make a claim with appellant at that time. On October 6, 1994, Ford Motor Credit Company (Ford) filed a complaint against appellee, who had defaulted on his payments on the vehicle. Ford alleged that the vehicle had been repossessed, sold pursuant to the Uniform Commercial Code, and that appellee owed a deficiency of $ 4,717.31. During the pendency of the litigation, appellee did not seek recovery from appellant. A trial was held on the matter and on July 7, 1995, a judgment was entered against appellee.

On September 12, 1995, appellee filed a motion seeking permission to file a third-party complaint against appellant. Appellee’s motion was granted and the third-party complaint was filed against appellant. The complaint alleged that appellant had issued a credit-life policy on Hugh Tomerlin and that appellee was entitled to judgment against appellant pursuant to the requirements of the credit-life policy. Appellant filed an answer to the third-party complaint and a motion to dismiss. On October 2, 1996, appellant filed a motion to strike the third-party complaint. The trial court found that appellant had waived the issues presented in its motion to strike appellee’s complaint by not filing the motion in a timely fashion.

On April 9, 1998, appellant filed a motion for summary judgment. Appellee responded to appellant’s motion and sought summary judgment on several other issues. The trial court found that there were genuine issues of material fact that needed to be determined in the case and denied both motions for summary judgment.

A trial was held, and the jury returned a verdict for appellee in the amount of $5,560.97. The trial court also awarded appellee $189.50 in costs, a twelve percent penalty of $676.32, and $10,000 in attorney’s fees. Appellees’s total judgment was $16, 417.79. It was from that judgment that appellant appealed to the Arkansas Court of Appeals that affirmed the trial court in a nonpublished opinion that was handed down on December 1, 1999. On appeal to this court, appellant raises five points on appeal. Finding merit in the first point, we reverse.

Appellant contends that the trial court erred in failing to strike appellee’s third-party complaint as its first point on appeal. Specifically, appellant argues that appellee should not have been allowed to file a third-party complaint against appellant after judgment had been entered against appellee in the underlying suit and that the trial court erred when it denied appellant’s motion to strike the third-party complaint. In our evaluation of this issue, we must consider Ark. R. Civ. P. 14, which states:

(a) At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be hable to him for all or part of the plaintiff’s claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third party complaint not later than ten days after he files his answer. Otherwise, he must obtain leave on motion upon notice to all parties to the action. The person served with the summons and the third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff’s claim as provided in Rule 12 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff’s claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff and the third-party defendant shall thereupon assert his defenses as provided in Rule 12 and his counterclaims and cross-claims as provided in Rule 13. Any party may move to strike the third party claim or for its severance or separate trial. A third- party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant.

Ark. R. Civ. P. 14. We have explained that the purpose of the rule is to settle all controversies at one time, thereby avoiding multiplicity of suits. See Farm Bureau Mutual Ins. Co. v. Riverside Marine Remanufacturing, Inc., 278 Ark. 585, 647 S.W.2d 462 (1983). We also note that in his book on the Arkansas Rules of Civil Procedure, David Newbern states that “permission to file a third party complaint may properly be denied if it is unnecessarily late and would cause a delay in a scheduled trial.” David Newbern, Arkansas Civil Practice and Procedure, § 14-1 (2d ed. 1993). Additionally, Newbern states that “if the third party claim is inappropriate, whether because of the delay it will cause or other prejudice which might result, it may be stricken or severed for separate trial.” Id.

In Aclin Ford Co. v. Fiat Motors of North America, Inc., 275 Ark. 445, 631 S.W.2d 283 (1982), a case very similar to the case on appeal, we were asked to determine whether a trial court erred by granting a motion to strike a third-party complaint. In Aclin, a plaintiff brought a breach of warranty action against Aclin Ford Company, Inc. and Fiat Motors of North America, Inc., involving the purchase of a Fiat automobile. Id. Fiat was dismissed from the suit prior to the trial. Aclin then orally requested permission to file a third-party complaint against Fiat which was denied. The trial resulted in judgment for the plaintiff and Aclin requested a new trial. In its motion for a new trial, Aclin again requested that it be allowed to file a third-party complaint against Fiat. Aclin’s motion to file the third-party complaint was granted. Id. However, the trial court thereafter granted Fiat’s motion to strike Aclin’s third-party complaint finding that it was untimely filed. Affirming the trial court, we held that

implicit in Rule 14 is the assumption that the third party complaint will be filed before the issues are resolved at trial; otherwise, its provisions allowing the third party defendant to assert defenses against the original plaintiff would have no meaning. Therefore, the trial court was correct in granting Fiat’s motion to strike the third party complaint since it was filed after trial.

Id.

The facts in the present case are not distinguishable from the facts in Aclin. Here, Ford filed suit against appellee and recovered judgment. Thereafter, appellee requested and was granted permission to file a third-party complaint against appellant and the trial court denied appellant’s motion to strike appellee’s third-party complaint. Based on Aclin, we conclude that permitting the third-party complaint to be filed after the entry of the judgment in the underlying suit was error and requires that the ruling be reversed.

Because the initial erroneous ruling led to the other issues on appeal, it is not necessary for us to address the remaining points on appeal.

Reversed.


author: Ray Thornton, Justice.

text:
    UNION PLANTERS NATIONAL BANK v. EAST CENTRAL ARKANSAS ECONOMIC DEVELOPMENT CORPORATION
    99-573
    13 S.W.3d 578
    Supreme Court of Arkansas
    Opinion delivered March 30, 2000

      W. Frank Morledge, P.A., by: W. Frank Morledge, for appellant.

      Christopher W. Morledge, P.A., by: Christopher W. Morledge, for appellee and court-appointed receiver.
   Ray Thornton, Justice.

Appellant, Union Planters National Bank, brings this appeal seeking review of the chancery court’s determination to appoint a receiver at the request of appellee to oversee the dissolution and liquidation of its not-for-profit corporation on the grounds of insolvency, urging that the chancellor was without subject-matter jurisdiction over the proceeding in the absence of a base or ancillary proceeding, and that the appointment of a receiver was improper. Because we conclude that Rule 66 of the Arkansas Rules of Civil Procedure and our prior case law on the subject support the chancellor’s decision to appoint a receiver, we affirm.

Appellee, the East Central Arkansas Economic Development Corporation, filed a petition for dissolution and liquidation in the chancery court of St. Francis County on February 13, 1998, alleging that its board of directors had voted to dissolve the corporation due to insolvency. The corporation was allegedly the subject of lawsuits and other claims against which it could not defend or satisfy judgments, and asserted that in order to avoid multiplicity of lawsuits or preferential treatment of creditors, the court should take jurisdiction of the winding up of the affairs of the corporation by appointing a receiver. A receiver was appointed on June 16, 1998, and a warning order notice to creditors to appear and enter their claims was issued by the receiver.

Appellant filed a Motion for Leave to Intervene, alleging that it had been granted judgment against appellee and that the judgment remained unsatisfied, and requesting intervention in the dissolution proceedings. Contemporaneously appellant filed a motion to dismiss, specifically contending that the allegations of the petition filed by appellee for dissolution and liquidation failed to give rise to authority for the appointment of a receiver, and that such appointment in the absence of a base proceeding before the chancery court was improper and should be set aside. In response, appellee pointed out that it was formed by the filing of documents well prior to the adoption of the Arkansas Non-Profit Corporation Act of 1993, and because the prior law did not provide for a procedure for approval of extraordinary transactions involving voluntary dissolution of a nonprofit corporation, appellee turned to the chancery court specifically for guidance in requesting supervision of the dissolution.

The chancery court granted appellee’s motion to establish a receivership and denied appellant’s Motion to Dismiss, finding that the appointment of a receiver was proper and within the jurisdiction of the trial court in order to protect the remaining assets of appellee, to continue operation of certain remaining business ventures, and to garner and assemble assets of the corporation for the equitable treatment of creditors. “The only reasonable means by which to ensure that all creditors and claimants are protected during the dissolution of East Central,” wrote the chancery court, “is ... to appoint a receiver. Therefore, it is this court’s opinion that a receiver is necessary and proper....”

Rule 66 of the Arkansas Rules of Civil Procedure provides that: “Courts of equity may appoint receivers for any lawful purpose when such appointment shall be deemed necessary and proper,” and under our standard of review we must determine whether the appointment of a receiver was an abuse of discretion. The appointment of receivers rests within the discretion of courts of equity, to be exercised with restraint and caution, and ordinarily in conjunction with a pending proceeding, and rarely as a means in itself, but whenever unusual circumstances warrant. Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985) (cited in Boeckmann v. Mitchell, 322 Ark. 198, 909 S.W.2d 308 (1995)). Trial courts are ordinarily permitted to exercise that power with considerable discretion in determining whether, under particular circumstances, a receivership is reasonably required. The power to appoint a receiver is, of course, a harsh and dangerous one, and should be exercised with great circumspection. Chapin, supra (citing Kory v. Less, 180 Ark. 342, 22 S.W.2d 25 (1929)). The cases in which receivers ordinarily will be appointed are confined to those in which it can be established to the satisfaction of a court that the appointment of a receiver is necessary to save the property from injury or threatened loss or destruction. Id. As we noted in Boeckmann, supra, in reviewing such a decision, it is necessary to include a review of the underlying issues which form the basis for the appointment of the receiver. Id. Based upon our review of the facts presented to the chancellor, we cannot agree with appellant’s contention that the trial court abused its discretion in appointing a receiver to discharge the duties necessary to dissolution of the corporation.

Each side has taken issue with the specific meaning of the chancellor’s order with regard to the necessity for a base proceeding, with appellant contending that the chancellor erred in looking to concluded litigation between the parties as a base proceeding, and appellee arguing that the chancellor found a base proceeding in the writ of execution and garnishment filed by appellant against appellee, amounting to an affirmative action by which appellant initiated the base proceeding relevant to this receivership petition. However, based on our prior holding in Chapin, supra, and later affirmed in Boeckmann, supra, we find it unnecessary to address the question whether there was an ancillary proceeding. Like the case before us, in Chapin the appellant contended that the appointment of a receiver was the only relief sought by appellee and was not an appropriate action because it was not ancillary to any other proceeding then pending. Id. As we noted in Chapin, we take no exception to the basic principle that receivership is not an end unto itself, but is generally ancillary to some proceeding over which the court has jurisdiction. However, this broad statement of the law is “neither categorically nor invariably so,” nor is it to be “rigidly applied.” Id. The appointment of receivers comes within the extraordinary powers of a court of equity, and our only concern should be whether the appointment constituted an abuse of discretion. Here, as in Chapin, the trial court determined that under the unusual situation presented in this case, a receiver was needed to manage and protect the assets of an insolvent nonprofit corporation beset by numerous creditors and a judgment-seeking class action. Id. We agree with that determination.

We note further that our case law and interpretation of the provisions of Rule 66 is in accord with the most recent expression of legislative intent by our General Assembly. The relatively new enactment of the Arkansas Non-Profit Corporation Act of 1993 specifically provides that a chancery court may dissolve such a corporation in a proceeding by the corporation to have its voluntary dissolution conducted under court supervision. Ark. Code Ann. § 4-33-1430 (Repl. 1996). We conclude that the chancellor’s actions not only fall well within this court’s own rules and case law, but also reflect the public-policy considerations articulated by later statutory instruction. We therefore hold that the chancellor did not abuse his discretion in determining that the appointment of a receiver was appropriate, and accordingly, we affirm.

Affirmed.


author: LAVENSKI R. SMITH, Justice.

text:
    STATE of Arkansas v. Antonio SINGLETON
    CR 99-1172
    13 S.W.3d 584
    Supreme Court of Arkansas
    Opinion delivered March 30, 2000
    [Petition for rehearing denied May 4, 2000.]

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellant.

      William R. Simpson, Jr., Public Defender, by: Ashley Riffel, Deputy Public Defender; Kent C. Krause, Deputy Public Defender; and Clint Miller, Deputy Public Defender, for appellee.
   LAVENSKI R. SMITH, Justice.

The State appeals the trial court’s acceptance of a guilty plea by Appellee Antonio Covell Singleton entered over the State’s objection. The State objected to entrance of the guilty plea, citing Ark. R. Crim. P. 31.1. The State contends that the trial court could not accept Singleton’s guilty plea because the State did not consent. The State asserts that Rule 31.1 requires the State’s consent before a defendant can waive a jury trial. The State reads the rule consistent with our recent cases and we must, therefore, reverse.

Facts

On March 9, 1999, the State charged Singleton with two felony counts of possession of a controlled substance, and one felony count of simultaneous possession of drugs and a firearm. In an August 27, 1999, hearing, Singleton tendered a guilty plea to the trial court. The trial court stated its intention to accept Singleton’s guilty plea over the objection of the State. The State argued that under Ark. R. Crim. P. 31.1, the trial court could not accept the guilty plea without the prosecution’s consent. The trial court entered the guilty plea and passed sentence. The State timely filed its notice of appeal.

Jurisdiction

The State’s ability to appeal criminal cases is limited. The State may file an interlocutory appeal based upon evidentiary rulings that suppress state’s evidence or permit evidence of a victim’s prior sexual conduct. Also, the State may bring a non-interlocutory appeal where two conditions exist: 1) the Attorney General believes that prejudicial error has occurred, and 2) the uniform administration of the criminal law requires this court’s review. Ark. R. App. P. — Grim. 3(b). State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993). We have previously held that issues similar to those in the instant case satisfy those criteria. State v. Vasquez-Aerreola, 327 Ark. 617, 940 S.W.2d 451 (1997). Hence, jurisdiction of this case is proper.

Guilty Plea Without Consent of the State

On appeal, the State argues that Rule 31.1, as interpreted by this court’s prior opinions, requires that the prosecutor consent to a defendant’s waiver of a trial by jury. The State is correct. Rule 31.1 provides, “No defendant in any criminal cause may waive a jury trial unless the waiver is assented to by the prosecuting attorney and approved by the court.” In Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986), the defendant sought to plead guilty to capital-murder charges on the eve of trial, ostensibly to avoid imposition of the death penalty by the jury. The prosecutor objected and insisted on putting on the State’s proof of the defendant’s guilt. The court sustained the objection and proceeded to trial. In his appeal, Fretwell contended that the trial court should have had discretion to accept his guilty plea even without the prosecutor’s assent. The court stated, “[I]n Arkansas a felony defendant is not entitled to a trial to the court without the assent of the prosecutor.” Fretwell, 289 Ark. at 93-94. The Fretwell decision further stated, “The rule is clear. Criminal cases which require trial by jury must be so tried unless (1) waived by the defendant, (2) assented to by the prosecutor, and (3) approved by the court. The first two are mandatory before the court has any discretion in the matter. Here, the second requirement, assent by the state, was not had and the court was without discretion to hear the plea.” Id. The court went on to expressly decline to follow those jurisdictions that give a defendant an absolute right to waive a jury trial.

More recently, in Vasquez-Aerreola, we reversed a trial court’s decision to accept a defendant’s guilty plea, citing Fretwell. Vasquez-Aerreola reiterated the Fretwell holding that a trial court has no discretion to accept a felony defendant’s guilty plea over the prosecution’s objection. It is apparent from these cases that this court has interpreted Rule 31.1’s consent requirements to apply not only to a defendant’s election to be tried by the court as opposed to being tried by the jury, but also to the felony defendant’s decision to be tried at all. Our cases thus have viewed a guilty plea in the same manner as a request for waiver of a jury trial.

Failure to Cite the Applicable Rule in the Jurisdictional Statement

In response, Singleton makes five arguments opposing the State’s appeal. None of appellant’s arguments are availing. First, Singleton asserts the State is procedurally barred by its failure to cite the correct basis for appeal on its jurisdictional statement. The State admits the error in its reply brief, and counters that jurisdiction is proper under Ark. R. App. P. — Crim. 3(b) and (c).

Ark. Sup. Ct. R. l-2(c) and 4-2(a)(2) require an informational and jurisdictional statement. The proper form is set out in the accompanying notes, and is the one used by the State. The State marked ‘Interlocutory Appeal,’ when they should have marked ‘Criminal.’ Singleton cites no authority for the proposition that this type of defect requires dismissal of an appeal. We decline to do so now. When an appellant cites no authority or convincing argument in support of his theory, we will not reverse. McGehee v. State, 338 Ark. 152, 992 S.W.3d 110 (1999); Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998); Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998).

Double Jeopardy

Second, Singleton argues that regardless of the court’s authority to accept the plea, double jeopardy would attach because the trial court actually did accept his plea. He relies on Ark. Code Ann. § 5-1-112(2), which provides:

A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:
(2) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty or nolo contendere accepted by the court. (Emphasis added.)

We hold Singleton has not been subjected to double jeopardy. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects a defendant from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Tipton v. State, 331 Ark. 28, 959 S.W.2d 39 (1998). However, once set aside, a defendants plea of guilty, just as a verdict of guilty, does not constitute a conviction. Thus, in the instant case, where this court reverses the acceptance of a guilty plea, there is no conviction and, therefore, nothing to afford Singleton the protection of double jeopardy. Singleton stands in precisely the same position he occupied the day he tendered a guilty plea. Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997). Singleton is not being asked to stand trial for a crime for which he was acquitted, but rather for one to which he unsuccessfully tried to plead guilty.

Singleton cites Penn v. State, 57 Ark. App. 333, 945 S.W.2d 397 (1997), for the proposition that trial court error will not allow prosecution a second time. However, in Penn, the trial court committed an error resulting in entry of an acquittal. For the reasons cited above, this is inapplicable to the present case.

Appeal from a Guilty Plea

Singleton next argues that the State may not appeal a guilty plea, citing State v. Pylant, 319 Ark. 34, 881 S.W.2d 28 (1994). In Vasquez-Aerreola, this court previously discussed the language in Pylant relied on by Singleton and resolved the issue against the position asserted by Singleton. In Pylant, the trial court entered a guilty plea over the objection of the State, and the State filed an interlocutory appeal from denial of its motion for a jury trial. This court disposed of the case on grounds of lack of finality because the order on the motion was not a final judgment. We stated, “Aside from issues of finality, the law is well-established that, in general, there is no right to an appeal from a plea of guilty where the appeal constitutes a review of the merits of the plea itself, as in the instant case.” Pylant, 319 Ark. at 36. This language was cited, and this issue was discussed, in Vasquez-Aerreola. This court stated as to the cited language, “The State maintains that this language in Pylant is mere dictum. We agree. Pylant was decided on finality grounds, thereby making the quoted language obiter dictum.” Vasquez-Aerreola, 327 Ark at 624. This court went on in Vasquez-Aerreola to find that the trial court lacked authority to accept a guilty plea over the objections of the State. In Vasquez-Aerreola, the guilty pleas were vacated, and the case was remanded.

Appeals Demonstrating Trial Court Error

Singleton next asserts that the State has appealed a mixed issue of law and fact in violation of the principles set out in State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994). The argument is flawed. The State has not appealed merely a discretionary error in application of law to facts but has appealed a judgment which the trial court lacked the discretion to make at all under current precedents.

The Right to a Jury Trial

Singleton’s fifth and final point on appeal is to simply request that this court overrule Vasquez-Aerreola, and to amend Rule 31.1 to allow a defendant to plead guilty and limit the prosecution to making recommendations on sentencing. He argues that the State has no right to a jury trial. He is correct. The State has no express constitutional right to a jury trial. However, under our current rules and cases interpreting them, it does have the option to refuse to consent to the defendant’s waiver of jury trial. Singleton acknowledges that defendants do not have the right to unilaterally waive a jury trial. Singer v. United States, 380 U.S. 24 (1965). A right to plead guilty may be conferred by statute or rule; however, there is no such rule or statute in Arkansas. Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987).

Singleton asks us to reconsider Rule 31.1 and the Fretwell/Vasquez-Aerreola line of cases. This court does not lightly overrule cases and applies a strong presumption in favor of the validity of prior decisions. Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984) (citing Walt Bennett Ford, Inc. v. Pulaski County Special Sch. Dist., 274 Ark. 208, 624 S.W.2d 426 (1981)); Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998). We decline the invitation in the context of this case, but certainly comments and suggestions can be made to, the rules committee at any time.

Reversed and remanded.


author: Per Curiam.

text:
    Roger Lewis COULTER v. STATE of Arkansas
    CR 00-281
    13 S.W.3d 171
    Supreme Court of Arkansas
    Opinion delivered March 30, 2000

      Alvin Schay, for appellant.
    No response.
   Per Curiam.

Appellant, Roger Lewis Coulter, seeks a belated appeal and appointment of counsel for purposes of appealing the trial court’s denial of relief under Rule 37. Coulter was convicted of capital murder in the Ashley County Circuit Court and sentenced to death. We affirmed the trial court on his direct appeal. Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991). On December 31, 1996, Coulter petitioned the circuit court for relief under Ark. R. Crim. P. 37. The circuit court denied his petition, on October 8, 1999.

Appellant’s counsel did not receive notice of the trial court’s denial until January 25, 2000. Appellant’s counsel promptly thereafter filed a notice of appeal and designation of record on January 27, 2000. Apparently, the notice letter had been sent to counsel’s former address at the now-defunct Arkansas Capital Resource Center.

We recently held in a case involving a death-row inmate also formerly represented by the Arkansas Capital Resource Center that lack of notice to the defendant constituted good cause to permit a belated appeal. In Porter v. State, 339 Ark. 15 (1999), we did so recognizing the fact that modifications to Rule 37.5 should cure the inadequacies of the notice process.

Appellant’s motion for belated appeal is therefore granted, and attorney Alvin Schay is hereby appointed as counsel for appellant for purposes of this appeal.


text:
    Lawrence MARTIN v. STATE of Arkansas
    CR 00-60
    13 S.W.3d 576
    Supreme Court of Arkansas
    Opinion delivered March 30, 2000

      Appellant, pro se.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Senior Ass’t Att’y Gen., for appellee.
   PER CURIAM.

In 1995, Lawrence Martin was found guilty of capital murder and sentenced to life imprisonment without parole. We affirmed. Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997). The mandate of this court was issued on May 23, 1997. Martin subsequently filed in the trial court a timely petition pursuant to Criminal Procedure Rule 37 seeking to vacate the judgment. The petition was denied in 1998 and an amended order addressing one additional issue was entered in 1999 that also denied relief. The record on appeal from the amended order has been lodged here.

Appellant Martin, who is proceeding pro se, now seeks access to a copy of the record to prepare his brief and an extension of time to file it. As the appellant is required to abstract the record in an appeal, the motions are granted. Our clerk is directed to forward a copy of the record to appellant with the provision that the copy of the record be returned to this court after appellant has completed the brief. The appellant’s brief will be due forty days from the date of this opinion. Again, the record must be returned when the brief is filed.

Appellant has also filed three additional motions. In the first motion, he asks that this court issue an order compelling the warden at the Maximum Security Unit of the Arkansas Department of Correction where appellant is incarcerated to permit him additional time in the library to prepare the brief. The motion is denied. We decline to dictate the operation of the facility where appellant is imprisoned.

Appellant next asks that we compel the circuit court to provide a videotape of the medical examiner and a part of the jury-selection process so the material can be docketed here, presumably as a supplement to the record in this appeal. (It is not clear whether the request for a part of the jury selection process refers to a written transcript or a videotape.) As appellant does not establish that the material was a part of the record that was before the court when the ruling was made on the Rule 37 petition or otherwise demonstrate that the material is germane to this appeal, the motion is denied.

Finally, appellant requests that counsel be appointed to represent him in this appeal. Postconviction matters are civil in nature, and there is no absolute right to appointment of counsel in civil matters. See Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986). We have held, however, that if an appellant makes a substantial showing that he is entitled to relief in a postconviction appeal and that he cannot proceed without counsel, we will appoint counsel. See Howard v. Lockhart, 300 Ark. 144, 777 S.W.2d 223 (1989). Appellant here has not demonstrated that there is merit to the appeal.

Motions for access to record and for extension of time granted; motions to compel additional library time, to supplement record, and for appointment of counsel denied.