author: Robert H. Dudley, Justice. Darrell Hickman, Justice, Tom Glaze, Justice, Robert H. Dudley, Justice. John I. Purtle, Justice, Darrell Hickman, Justice, Steele Hays, Justice, Tom Glaze, Justice,

text:
    Jimmy D. GARRETT, Election Commissioner of Conway County, Arkansas, et al. v. Ed N. ANDREWS, George Andrews, et al.
    87-102 & 87-103
    741 S.W.2d 257
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987
    [Supplemental Opinion on Denial of Rehearing February 8, 1988.]

      Villines & Lacy, by: M. Watson Villines II, and William R. Lacy, for appellants.

      Mark S. Cambiano, P.A., for appellees Morrilton Liquor, Inc. and Charles Garrett.

      Laws, Swain & Murdock, P.A., by: Ike Allen Laws IIP, and FelverA. Rowell, and Street & Kennedy, by: Alex G. Street, for appellees.

       Purtle, J., concurs; Hickman, Hays, and Glaze, JJ., dissent.

   Robert H. Dudley, Justice.

On November 4, 1986, the voters of Conway County were presented with the local option of whether to continue allowing the manufacture and sale of alcoholic beverages. After a recount of the votes, the election results were certified on November 10, with the “drys” winning by 33 votes. On November 26, which was 16 days after the certification, the “wets” filed a complaint contesting the election result. The complaint named as defendants the three election commissioners. Four “drys” petitioned to intervene in the contest and pleaded that the contest was not timely filed, since it was not filed within 10 days of the certification as required by Ark. Stat. Ann. § 48-820(2). On May 20, 1987, one of the election commissioners, Jimmy Garrett, filed a general denial. Process had been served on Garrett December 2, 1986. The trial court found the contest had been timely filed, and that the petitioners, the “wets,” were entitled to a default judgment setting aside the election. We reverse and dismiss.

The first point of appeal raised by the appellants, or the “drys,” is that the trial court erred in refusing to dismiss the complaint due to its untimely filing. The argument has merit. Ark. Stat. Ann. § 48-820 (Repl. 1977), which is a part of the Arkansas Alcoholic Control Act provides in pertinent part:

48-820. Contest of election. — Any election held under this law may be contested as provided for in this section:
1. Hearing and determination. The contest shall be heard and determined by the same board which, by law, is authorized and empowered to hear and determine a contest of an election for county officers; and the same provisions of the statutes shall apply to the contest of any election held under this law as are provided for the contest of any election for county officers, except as hereinafter provided.
2. Petition. Any number of the citizens and legal voters, but not less than ten [10] of the county, city, town, district, or precinct in which the elections have been held, shall have the right to contest any election held under this law, and shall be designated the contestants. Such contestants shall, within ten (10) days after the final action of the examining board, file in the office of the clerk of the county court a written statement of the grounds of the contest, and shall cause a copy thereof, to be served on the county judge, and shall give notice thereof by written or printed notice to be posted at the courthouse door of the county, and in three or more public places in the county, city, town, district or precinct in which the election has been held, and shall cause the same to be published in some newspaper of the county, when possible, for two [2] consecutive issues, commencing not later than the first issue of the paper after filing the statement. When a notice of the contest shall be executed on the county judge, the certificate shall not be recorded.

(Emphasis added.)

The first independent clause of subsection 1 above provides that a local option election contest is to be heard by the same “board” that is authorized by law to hear a contest of an election for county officers. “Board” now means circuit court. Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972). The second independent clause of the subsection, the key clause, provides that statutes governing the contest of any election for county officers shall apply to local option election contests, “except as hereinafter provided.” Subsection 2 then contains the exceptions which apply to local option contests. One of the exceptions provided is the requirement that the contest be filed “within 10 days after the final action of the examining board.” This means within ten (10) days after the certification of the vote. Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985). In Wurst, we said:

We hold that, by analogy, Wurst’s time for intervening in the case expired with the lapse of the time allowed for filing a contest of a local option election, which is ten days after the certification of the vote. Ark. Stat. Ann. § 48-820 (Repl. 1977).

The appellees argued, and the trial court ruled, that a different statute, Ark. Stat. Ann. § 3-1001 (Repl. 1976), was the governing statute. It allows twenty (20) days for the filing of an election contest. That statute is a part of the comprehensive election code of 1969 which contains thirteen (13) articles, all of which are directed toward elections involving candidates, and not toward local option elections.

Ark. Stat. Ann. § 3-1001 provides:
3-1001. Procedure. — A right of action is hereby conferred on any candidate to contest the certification of nomination or the certificate of vote as made by the appropriate officials in any election. The action shall be brought in the Circuit Court of the county in which the certifications of nomination or certificate of vote is made when a county or city or township office, including the office of county delegate or county committeeman, is involved, and except as hereinafter provided, within any county in the Circuit or District wherein any of the wrongful acts occurred when any Circuit or District office is involved, and, except as hereinafter provided, in the Pulaski Circuit Court when the office of United States Senator or any State office is involved. If there are two (2) or more counties in the District where the action is brought and when fraud is alleged in the complaint, answer or cross complaint the Circuit Court may hear testimony in any county in the district. The complaint shall be verified by the affidavit of the contestant to the effect that he believes the statements thereof to be true, and shall be filed within twenty (20) days of the certification complained of. The complaint shall be answered within twenty (20) days.

(Emphasis added.).

The repealer section of the comprehensive act does not specifically repeal the local option act. Appellees argue that Ark. Stat. Ann. § 3-1004(c) repealed the local option election act. Section 3-1004(c) provides:

(c) Except as hereinafter provided all laws pertaining to general and special elections or rules of political organizations holding primary elections providing for contest before political conventions or committees other than the proceedings herein provided shall be of no further force or effect.

(Emphasis added.)

However, “general and special elections” are defined as elections involving only candidates or officials. Ark. Stat. Ann. § 3-101 (c) provides:

(c) “General or special election” shall mean the regular biennial or annual elections for election of United States, State, District, County, Township and Municipal officials, and the special elections to fill vacancies therein. Such term, as used in this Act, shall not apply to school elections for officials of school districts.

(Emphasis added.)

Thus, the local option election statute, which does not involve candidates or officials, was not repealed by the comprehensive election code. Our interpretation of these statutes is consistent with the rule of statutory construction which provides that two statutes should be construed so as to give effect to both, if possible, and repeals by implication are not favored by the law. Faver v. Golden, Judge, 216 Ark. 792, 227 S.W.2d 453 (1950).

The appellees argue that the interpretation we adopt is inconsistent with our holding in Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972). Our holding in that case is that jurisdiction to try local option election contests is in circuit court. All else is dicta.

The appellees did not file this election contest within the ten (10) day period specified by § 48-820, the governing statute. As a result, the trial court should have dismissed the complaint. In Gower v. Johnson, 173 Ark. 120, 292 S.W. 382 (1927), we explained:

The judgment of the circuit court was correct. Under our previous decisions construing our primary election statute, the right to contest a primary election is a statutory proceeding, the purpose of which is to furnish a summary remedy and to secure a speedy trial. The provision requiring the contest to be filed within ten days has been held to be mandatory and jurisdictional. If the contest is not filed within ten days after certification of the nomination complained of, the failure to institute the contest within that time is fatal to the right of the contestant. Hill v. Williams, 165 Ark. 421, 264 S.W. 964, and Storey v. Looney, 165 Ark. 455, 265 S.W. 51.
As was said by the Supreme Court of the United States in Walsh v. Mayer, 111 U.S. 31: “The provisions requiring it to be asserted in a particular mode and within a fixed time are conditions and qualifications attached to the right itself, and do not form part of the law of the remedy. If it is not asserted within the limited period, it ceases to exist, and cannot be claimed or enforced in any form.”

Accordingly, we must reverse and dismiss this cause.

The only remaining issue is the appellees’, or “wets’,” argument that the appellants, or “drys,” had no standing to resist the election contest. Four appellants attempted to intervene in the suit against the election commissioners. The trial judge ruled that these four voters could not intervene, because the applicable statute, § 48-820(3), requires ten (10) voters to resist a local option contest. We need not determine whether that ruling was correct, because, in addition, one of the election commissioners, a named defendant, entered his appearance to resist the contest. If his appearance had been made within twenty (20) days after he was personally served, there would be no question about his standing. However, his appearance was made more than twenty (20) days after service. As a result, the appellees contend the appellants have no standing and they are entitled to a default judgment under ARCP Rule 55. The contention is without merit.

The local option election statutes do not set a specific number of days for the filing of an answer. Under such circumstances, in a local option election contest, a trial court may permit an answer at any time between the prompt filing and the expedited trial. See Cain v. McGregor, 182 Ark. 633, 32 S.W.2d 319 (1930). Since the trial court could permit the answer to be filed at any time before the trial commenced, the response filed in this case was sufficient to prevent a default, and the appellant election commissioner does have standing.

Further, even if the contestee were in default, a default judgment setting aside the election would not be mandated. The Arkansas Rules of Civil Procedure apply to civil actions. ARCP Rule 2. A civil action is an ordinary proceeding by one party against another for the enforcement or protection of a private right or redress or prevention of a private wrong. Ark. Stat. Ann. § 27-106 (Repl. 1979).Every other remedy isaspecial proceeding. Ark. Stat. Ann. § 27-107 (Repl. 1979). Therefore a local option election contest is a special proceeding, and it is not necessary that all of the rules of civil procedure be applied. See Reed v. Baker, 254 Ark. 631, 495 S.W.2d 849 (1973). As we said in LaFargue v. Waggoner, 189 Ark. 757, 75 S.W.2d 235 (1934), judicial application of procedural rules in election contests “must not be so strict as to afford protection to fraud, by which the will of the people is set at naught, nor so loose as to permit the acts of sworn officers, chosen by the people, to be inquired into without an adequate and well-defined cause.”

Therefore, Rule 55 should not be applied to a special proceeding when the result would be to set aside a valid public election without any proof whatsoever. In fact, the local option election statute contemplates proof even where there are no contestees. Ark. Stat. Ann. § 48-820(4) provides in pertinent part: “In case the required number [10] shall fail to appear as contestees, ex parte testimony shall be competent . . . .”

Reversed and dismissed.

Hickman, J., concurs.

Hays and Glaze, JJ., dissent.

Darrell Hickman, Justice,

concurring. I concur in the result and note that it may be the Arkansas Election Code was intended to cover local option elections; specifically, to change the ten day time in which to challenge an election to 20 days. However, the question is academic. We decided in Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985), the ten day provision was still alive. That decision was notice to all, like all precedents are. For parties and lawyers to have ignored Wurst and presumed it wrong was not wise; to overrule Wurst now would penalize those who have a right to rely on it.

I go with precedent.

Tom Glaze, Justice,

dissenting. I am astounded by the court’s decision. Generally speaking, I feel this court has shown enlightenment when called upon to interpret reform legislation in a way to meet its purposes and goals. However, of the several theories the parties advanced in this case, the court has managed to accept the one argument that not only defeats the minimal election reforms gained by the passage of Act 465 of 1969, the Arkansas Election Code, its interpretation of that Code reverts to the way our election laws existed in 1874. At the same time the court’s decision effectively buries the serious allegations of widespread election fraud that arose out of the Conway County General Election on November 4, 1986.

The court’s opinion is flawed in so many respects that I find it difficult to know where to begin; but I will try.

First, I will begin with a brief recitation of what led to this appeal. Local option elections, commonly called “wet/dry elections,” are by law required to be held at the same time the general election is conducted. See Ark. Stat. Ann. § 48-801 (Supp. 1985) and § 48-824 (Repl. 1977). Here, a wet/dry election was held in Conway County on November 4, 1986. The Conway County Board of Election Commissioners (hereafter Commissioners) certified the “drys” as having won by thirty-three votes. Sixteen days later, the “wets” filed an election contest, alleging election fraud. Although the irregularities are too numerous to list here, some of the allegations were:

* Election officials or their agents fraudulently substituted ballots that they previously marked for all the voters in two voting precincts;
* Voters shown as having voted twice;
*Nonresident and nonregistered voters had voted or were voted by someone other than the voter;
*Ballots were marked by pencil, except the wet/dry question, which had been marked by pen (and vice versa);
* Ballot boxes contained more ballots than voters named on the voter lists;
*Erasures made in the “wet box” on ballots, which were counted as “dry” votes;
*A dead person was voted;
* Electioneering was practiced within the polling places.

The Commissioners were served with the “wets’ ” complaint, but, for whatever reason, the Commissioners chose not to respond. About one month after the votes had been certified, four individuals, who were “drys,” filed a motion to intervene and asked the court to dismiss the wets’ complaint because they claimed Ark. Stat. Ann. § 48-820(2) (Repl. 1977) required the wets’ complaint to have been filed within ten days of the Commissioner’s certification of the vote, and the wets had filed their complaint six days too late. The trial court ruled the ten-day requirement had been superceded by the twenty-day requirement contained in Ark. Stat. Ann. § 3-1001 (Repl. 1976) of the Arkansas Election Code and the wets’ complaint was timely since it had been filed sixteen days after the vote was certified. The trial court also held the drys had not properly or timely intervened and the wets were entitled to a default judgment.

The majority court opines that the ten-day requirement in the 1935 local option statute, § 48-820(2), controls because the twenty-day limitation in the 1969 code, § 3-1001, applies only to elections involving candidates. The majority’s conclusion here is “bad wrong.” If it were right that the Code applies only to the election of candidates and officials, the Arkansas General Assembly needs to convene immediately to enact some election laws to conduct elections which bear on millages, bonds, annexations, initiatives and referendum measures, just to name a few. Like local option elections, most of these questions are required to be placed on the ballot at the biennial general election. If the Code provisions (including its chapters on State and County Board of Election Commissioners, General and Special Elections, Conduct of Elections, Absentee Voting, Voting Machines, as well as Election Contests) apply only to candidates and not issues, then we have no election laws by which the state can conduct an election pertaining to the important ballot questions I listed above. Of course, such a conclusion is unthinkable.

Instead, the conclusion that the Code applies to issue elections as well as ones involving candidates is unquestionably the case, at least until the majority’s decision today. The enactment of § 48-802 (Repl. 1977) (emphasis added), in fact, made it very clear that the local option elections shall be conducted by the Election Commissioners in the same manner as General Elections are conducted, and the same responsibility should rest upon all election officials conducting said election as in conducting General Elections, and only qualified electors shall be eligible to vote therein.”

The Code, which covers all primary, special, and general elections, contains an entire chapter as to how election contests must be conducted. It also spells out the election officials’ duties in such contests and, after defining those duties and procedures, § 3-1004(c) of that Code chapter, concerning election contests, provides:

. . .all laws pertaining to general and special elections or rules of political organizations holding primary elections providing for contest before political conventions or committees other than the proceedings herein provided shall be of no further force or effect. [Emphasis added]

Clearly, the General Assembly intended by § 3-1004(c) to apply the election contest provisions of the Code to all general, special, and primary elections. On the other hand, § 48-802, a 1942 Initiated Measure noted above, shows conversely that the people intended the local option elections to be conducted pursuant to the election laws (the Code) that apply to the biennial general election. The entire idea or intent behind these laws or measures was to have a uniform election system which covered all elections, albeit for candidates or issues. For example, as alluded to earlier, most issue-type elections, including local option elections, have absolutely no laws that govern how they should be conducted except for the provisions contained in the Code. Furthermore, the election contest provisions which were established in the old 1935 local option law now clearly conflict with the contest provisions set out in the Code. Thus, to accept the majority’s logic that those 1935 election contest provisions are still viable means that two entirely different and conflicting election contest laws would apply to the same general election, when a local option was also held. See Ark. Stat. Ann. §§ 48-820 to -822 (Repl. 1979) and §§ 3-1001 to -1009 (Repl. 1976).

Relying on certain language in § 48-820, the majority says that the election contest procedure in local option elections is independent from that which is provided in the Code. Wrong again! That statute was based upon the law as it was in 1935. At that time, election contests were within the jurisdiction of the county court. See Ark. Stat. Ann. § 3-1205 (Repl. 1956). Thus, the procedures in § 48-820, which direct election contests to be filed with the clerk of the county court, are simply no longer the law. The majority attempts to explain the outdated reference (in § 48-820) to “Board” as meaning “circuit court”, but such an explanation is undermined by reading the following statutory provision, § 48-821, which provides that contestants or contestees have a right to appeal “from the decision of the board to the circuit court.” Obviously, if a “board’s” decision was appealed to the circuit court in 1935, we cannot then equate the term board with the circuit court today. There simply is no reconciling these old terms and references contained in the 1935 local option contest procedures because they reflected, and meshed with, the general election laws as those laws existed in 1935.

The local option laws have since changed in 1942, 1943, 1983, and 1985, as have the comprehensive election laws in 1969 and afterwards. When the Code provided for a twenty-day requirement in election contests, any statute in force contrary to that requirement was superceded. See § 3-1004(c). While the majority notes that § 48-820 was not specifically repealed by the Code, the Code did provide that all election contest laws, other than that contained in § 3-1004(c), were of no further force and effect. As a consequence, the local option ten-day requirement for filing election contests must fall to the twenty-day provision set forth in the Code.

I make brief reference to the majority’s mention of Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985), as authority that the ten-day requirement in § 48-820 is still law. Suffice it to say, the parties never contended in Wurst that such ten-day limitation was superceded by §§ 3-1001 and -1004(c), or, if they had, I am sure that Justice George Rose Smith, the author of Wurst, would have agreed Wurst would have had twenty, not ten days, to intervene in the local option contest involved there. However, if one is unconvinced by that position and believes the ten-day requirement was upheld as law in Wurst, I certainly have no hesitation in holding the court was wrong.

Finally, while I conclude the twenty-day limitation is controlling and the wets timely filed their complaint, I am still of the opinion that they must show a prima facie case in accordance with the language contained in § 3-1002 of the Code. In other words, the trial court must require the wets to prove that their cause of action is such that the election results should be changed. In this respect, there is little difference between a default action in an election contest from one arising in any civil action.

I regret the court’s decision today because I believe it does damage to our election laws. In particular, Arkansas citizens and voters bear an onerous burden, even under the Code, to investigate and confirm the election irregularities that are necessary to file a proper contest within the required twenty-day period — a ten-day period, on the other hand, is an impossible limitation to meet. Here, serious allegations of election fraud have been made and those allegations should either be proved or dispelled. Public interest demands it, or our citizens’ faith and confidence in their government will be diminished. Most of the people who were organized on both sides of this issue in Conway County are unquestionably honest and want only an accurate certified vote, devoid of fraud. Our decision does nothing to resolve the most serious questions that underlie this case, and, instead, allows the allegations of fraud to remain unchallenged. At the very least, I believe the prosecutor of the district or the state attorney general should investigate these fraud allegations and resolve them one way or another.

744 S.W.2d 386

Hays, J., joins in this dissent.

Supplemental Opinion on Denial of Rehearing

February 8, 1988

Robert H. Dudley, Justice.

The petitioners ask for rehearing. Since there is neither an error of fact nor of law in the original opinion, we deny the petition.

The dissenting opinions contend that the majority opinion misconstrues the case of Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972). The original majority opinion states:

The appellees argue that the interpretation we adopt is inconsistent with our holding in Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972). Our holding in that case is that jurisdiction to try local option election contests is in circuit court. All else is dicta.

The statement is correct. The first paragraph of the opinion in Henderson sets out the question that was before the Court: “The question we must resolve is whether the county court had jurisdiction.”

The Henderson opinion summarizes its holding very concisely:

It is therefore our conclusion that Act 108 of 1935 provides that the contest of any local option election should follow the statutes providing for the contest of any election for county officers; and that Act 465 of 1969 provides that the contest for a county office shall be brought in the circuit court.

According to Black’s Law Dictionary, “dicta” are statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand, and they lack the force of an adjudication. Thus, the original opinion in this case correctly interprets Henderson.

The sentence from Henderson, quoted above, which summarizes the holding states that Act 108 of 1935, the local option act, provides for resolution of the jurisdictional question by referring to the statutes governing the contest for election of county officers, which is Act 465 of 1969, or the election code of 1969. Thus, the court in Henderson only applied the 1969 act by incorporation through the local option act.

The paragraph of the local option statute which governed Henderson and also governs the case at bar is as follows:

1. Hearing and determination. The contest shall be heard and determined by the same board which, by law, is authorized and empowered to hear and determine a contest of an election for county officers; and the same provisions of the statutes shall apply to the contest of any election held under this law as are provided for the contest of any election for county officers, except as hereinafter provided.

The first clause of the statute quoted immediately above provides that the contest of a local option election shall be heard by the same court as is authorized to hear the contest of an election for county officers. The last clause of the statute provides that the same provisions of the statutes shall apply to local option election contests as are provided for the contest of any election for county officers. However, the last clause also provides, “except as hereinafter provided.” None of the exceptions which follow in the next section of the statute were material in Henderson; but one of them, the requirement that a contest be filed within 10 days, is the crucial point of the case at bar. The exception, quoted in full in the original opinion, governs the case at bar, and mandates holding that a local option election contest must be filed within 10 days.

The petitioners alternatively ask us to modify the mandate in this case from reversed and dismissed to reversed and remanded in order that they might present arguments that the local option election act is unconstitutional. We decline to do so.

The appellants’ (respondents in this motion) first point of appeal was: “The trial court erred in not dismissing the complaint of the appellees due to the late filing thereof pursuant to Ark. Stat. Ann. § 48-820. The trial court lacks jurisdiction.” Their entire argument on the point was devoted to the proposition that the case should have been dismissed. In response to the point the appellee, petitioner here, argued that Ark. Stat. Ann. § 48-820 (Repl. 1977), the local option act, was not applicable and therefore the trial court correctly refused to dismiss the case. In their brief the appellees never once argued that there remained a constitutional issue to be decided by the trial court. The argument is raised for the first time on rehearing. We do not consider a contention advanced for the first time on rehearing. In Bost v. Masters, 235 Ark. 393, 361 S.W.2d 272 (1962), in a similar denial of rehearing, we wrote:

In other words, appellee never made the contention, now advanced, in her original brief. We have said on numerous occasions that we do not consider matters, in civil actions, which are not argued in the brief, and any point not argued is deemed waived.

Id. at 399-B, 361 S.W.2d at 277 (citations omitted).

Denied.

Hickman, Hays, & Glaze, JJ., dissent.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. The dissent by Justice Glaze is a little rough even by my standards. However, I do understand the intensity of his sentiment in the matter because he was the chief architect of the election code of 1969. The 1969 election code was an idea whose time had come and the reform legislation replaced a myriad of archaic and overlapping election laws. Justice Glaze believes that this legislation governs all election contests. I too thought the legislature intended to establish a uniform twenty day election contest law. However, in 1985 this court voted 6-0 (I did not participate) in Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985), that local option election contests must be filed within ten days from certification of the election results.

The Wurst opinion, which was written by Justice George Rose Smith, dealt exclusively with the procedure to contest a local option election, which is the issue in the present case. The opinion stated:

The attempt to intervene is far too late. Wurst could have intervened the day after the election had he been diligent. It is in the public interest that election results become final without delay. We hold that, by analogy, Wurst’s time for intervening in the case expired with the lapse of the time allowed for filing a contest of a local option election, which is ten days after the certification of the vote. Ark. Stat. Ann. § 48-820 (Repl. 1977).

The opinion is clear and unambiguous. It is binding precedent and we have a choice of following it or overruling it. We do not have the option of ignoring it completely as has been done on the petition for rehearing.

I have no bias in favor of or against either side in this dispute. The Wurst decision is over two years old and has heretofore received little, if any, criticism from the legislature or the legal community. In accordance with stare decisis, I feel compelled to follow our latest decision on this issue, Wurst. Perhaps the General Assembly will now clarify the issue in a manner which will leave no room for disagreement in future local option election contests.

Darrell Hickman, Justice,

dissenting. Traditionally, we only grant a rehearing if we have made a mistake of law or fact, but it is not against the law for a judge or a court to change its mind, especially when it is perceived a mistake in judgment has been made. We did both in this case — we made a mistake of law and one in judgment. Unfortunately, the court refuses to acknowledge that.

Our whole debate in this case centered on whether the election code of 1969 applied to local option elections. The issue was critical because the petition to contest the election in this case was not filed within 10 days of the election. Under the old local option law, Act 108 of 1935, the contest petition was filed too late; but, if the election code of 1969 governed, it was timely. This whole lawsuit and the resolution of it focused on this one issue. Did the 1969 law apply to local option elections?

A majority of the court members decided the 1969 election code did not govern local option elections. Justice Dudley wrote the majority opinion and based the court’s decision on several premises. First, the 1969 election code did not specifically repeal the local option provision and repeal by implication is not favored. Another basis was our decision in Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985), where we made reference to the ten day provision in the local option act as though it were alive and not repealed.

Justice Glaze wrote a powerful dissent, but he was unable to convince a majority of us that he was right. While I did not join the majority opinion, I agreed with the decision reached, relying on the decision in Wurst. Upon reflection, I see that Justice Glaze was right. But perhaps more important, since our decision, Justice Glaze has pointed out a glaring oversight on our part. The answer to our question was literally right under our noses and we all missed it. In fact, a controlling case, Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972), was cited in the majority opinion but dismissed as not controlling because the pertinent language was mere dicta. That is incorrect. In Henderson, a unanimous decision, we held the election code of 1969 did apply to local option elections. That’s the issue in this case. How could we make such a mistake? That’s the kind of blunder judges have bad dreams about — citing a case for one proposition while it holds exactly the opposite. The majority opinion is simply wrong in its treatment of Henderson and there is no room to quibble about it. Wurst, decided 13 years after Henderson, did not mention Henderson, probably for the simple reason that the Wurst language was indeed dicta and not a holding. It was an inexcusable mistake on our part. How or why we made it is immaterial at this point. What we do about it is all that matters.

I assumed that we, the court, would readily acknowledge the error and correct it. But that is not to be. The decision and opinion will stand. Consequently, I have to write this dissent.

The issue in Henderson was whether a provision, which is a part of the local option act, was governed and indeed changed by the new election law. The local option law said contests would be filed in county court. The 1969 election code said contests would be filed in circuit court. We held in Henderson that the new election law applied, even though no mention was made in the 1969 law that it was intended to govern local option elections. We said in Henderson that had the legislature intended to exclude local option elections, it would expressly have done so.

In the majority opinion in this case, we hold exactly the opposite: if the legislature had intended the new act to govern local option elections, it would have specifically repealed those provisions. How could two decisions be more clearly in conflict? Henderson holds without question exactly contrary to what our decision is in this case, and we refuse to acknowledge it. While this is an embarrassment, we ought to unhesitatingly correct our mistake, acknowledge Henderson, overrule Wurst, and send this case back for a trial.

It matters not what I think Henderson stands for or what the majority thinks it says. It speaks for itself. If there was the slightest chance I thought my judgment was wrong, I would be silent, because this kind of mistake and, more especially the refusal by the court to correct it, reflects upon the integrity of the court.

Hays, J., joins in the dissent.

Steele Hays, Justice,

dissenting. While I agree with the dissenting opinions I feel the need to add my own views to the several being expressed. I read the opinion of Justice Lyle Brown in Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972) as precedent for this case. In Henderson this court held that the circuit court had jurisdiction to try wet-dry elections. Why? Because under the provisions of Act 456 of 1969 a contest of local option elections was removed from county court and placed in circuit court. There were no dissents to that holding and it binds us now, or should.

Wurst v. Lowry, 286 Ark. 474, 695 S.W.2d 378 (1985) is not precedent for this case. In Wurst we held that an attempt in April 1984 to intervene in a local option election contest held in November, 1980 was “far too late.” We simply drew an analogy to the time allowed for contesting local option elections, which we mistakenly said was ten days, rather than twenty days. That was plainly dictum, the holding of the case being that a belated intervention years after the election was 1) too late and 2) without merit. That decision in no sense governs the case at hand. I respectfully dissent from the denial of rehearing.

Tom Glaze, Justice,

dissenting. The majority members’ decision in this case will assuredly become known as one of this high court’s all-time worst. How is a decision relegated to such an abysmal distinction? Because only a few decisions are so bad that they obtain such infamous distinction, I feel compelled to provide the reader with the criteria that qualify opinions for this lowly status. In order to qualify, an opinion must meet all of the following three tests.

I. THE DECISION MUST FAIL TO FOLLOW PRECEDENT WITHOUT SAYING SO, ERADICATE THE EXISTING LAW (AS IT IS GENERALLY KNOWN) AND REPLACE THAT LAW WITH A WORSE RULE OF LAW IN ITS STEAD.

Since my earlier dissent details how the majority opinion totally “missed” the law that controls this case, I merely summarize those points which serve to meet the first test set out above. In one fell swoop, the majority members’ opinion (1) ignored precedential authority without an acknowledgment of having done so, (2) caused irreparable damage to Arkansas’s Election Code which was intended to furnish the mechanics to hold and conduct elections in this state, (3) readopted a 1935 election procedure which makes it virtually impossible for voters to contest voter fraud allegations in local option elections, (4) buried allegations of wholesale fraud in a recent county-wide local option election, and (5) placed in issue the constitutionality of any called election held for the purpose of allowing citizens to vote on questions involving issues such as bonds, millages, initiatives or referendums, just to name a few.

II. THE DECISION MUST WANT IN FUNDAMENTAL LEGAL SCHOLARSHIP, WHICH ACTUALLY CAUSES AN ERRONEOUS RESULT TO BE REACHED BY THE COURT.

This criterion is undoubtedly the most embarrassing, especially for appellate judges whose stock and trade is to write clear and concise opinions to resolve peoples’ legal disputes. Even so, the majority’s opinion surely qualifies.

The essence of this case is whether the 1969 Election Code applies to local option election contests. In 1972, this court held the Code does cover such contests. Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972). The issue in Henderson was simple: Must local option election contests be filed in the county court under the 1935 local option law or in the circuit court, as provided by the 1969 Code? I quote the court’s answer:

It is therefore our conclusion that Act 108 of 1935 provides that the contest of any local option election should follow the statutes providing for the contest of any election for county offices; and that Act 465 of 1969 [Election Code] provides that the contest for a county office shall be brought before the circuit court. (Bracketed insertion mine.)

Id. at 726, 475 S.W.2d at 509.

The majority members, in their opinion, simply ignore the Henderson court’s holding that applied the 1969 Election Code to local option elections. They did so saying, of all things, that everything in the Henderson opinion was dicta, except that part which stated that local option contests must be filed in circuit court. I can only say that such an explanation reveals a want of basic scholarship of the law — as I know it, at least. Obviously, the Henderson court’s holding required its threshold decision that local option election contests are controlled by the 1969 Election Code. Frankly, if I were asked to give the family law students I instruct an example of an opinion which employed dicta, I certainly would not embarrass myself by citing the Henderson case, as the majority members have done in this case.

In their opinion denying rehearing, the majority members make one last ditch effort to rationalize their failure to follow Henderson and, in doing so, add still another glaring error to those I have already set out in my earlier dissent. Today, the majority says, “. . . [T]he court in Henderson ‘only’ applied the 1969 Act by incorporation through the local option act.” This statement simply is not true. In fact, the court applied the 1969 Election Code because of a repealer provision set forth in Ark. Stat. Ann. § 3-1004(c) (Repl. 1976), which I discuss in point III below. The Henderson court made specific note of § 3-1004 having been cited and argued to support the contention that the county court had no jurisdiction of the election contest. The court then stated unequivocally that it agreed with that contention. Id. at 725-726, 475 S.W.2d at 509.

III. THE DECISION MUST REQUIRE ACTION BY THE ARKANSAS GENERAL ASSEMBLY TO ENACT REMEDIAL LEGISLATION TO CORRECT THE ERROR OF LAW CONTAINED IN THE COURT’S OPINION.

This court, at times, is requested to unravel problems that have resulted from poorly drafted legislation. That is not the situation at hand. In fact, the Henderson decision made it clear that the 1969 Election Act’s title reflected that it covered local option elections and that one of the Act’s provisions, Ark. Stat. Ann. § 3-1004 (Repl. 1976), specifically provided that other election contest laws — than those contained in the Act — were of no further force or effect.

In conclusion, because of the decision reached by this court’s majority, controversy and confusion will ensue. In the majority members’ view, the 1969 Election Code does not apply except to elections involving candidates, not issues. The state, counties and municipalities are left with no laws or election apparatus by which they can conduct issue-oriented elections. The Governor and the Arkansas General Assembly must now correct this absurdity, which is a direct result of the majority’s decision in this case.

Because of the appellant’s petition for rehearing, the majority members have been given a chance to avoid the infamy their opinion so clearly invites. The petition should be granted, and the court should remand this case for the appellees to show a prima facie case that the election results should be changed.

Hays, J., joins in this dissent.

       Section 48-802 was amended by § 2 of Act 266 of 1985 to provide for a four-year period (instead of a two-year period) lapse in time before another election can be held on the same question in the same affected territory.

       Justice Purtle has added his concurrence and refers to Wurst v. Lowery, 286 Ark. 274, 695 S.W.2d 378 (1985) as being controlling here. As I pointed out in my earlier dissent, the Wurst case did not deal with the issue now before us, of whether the 1969 twenty-day contest provision superseded the prior 1935 ten-day provision. See Garrett v. Andrews, 294 Ark. 160, 168, 741 S.W.2d 257 (1987) (Glaze, J., dissenting). The only value the Wurst decision has in this case is to serve as a red herring; that decision surely offers no precedent or justifiable comfort for any member of this court to reach the holding the majority reached in this cause.


source: Caselaw Access Project

author: Steele Hays, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Eva BROOKS v. TOWN & COUNTRY MUTUAL INSURANCE COMPANY
    87-176
    741 S.W.2d 264
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987

      Randall L. Gammill, and Wright, Lindsey & Jennings, for appellant.

      Randall Templeton, for appellee.
   Steele Hays, Justice.

Eva Brooks (appellant) insured her home in De Vails Bluff for $25,000 with Town & Country Mutual Insurance Company (appellee) against loss by fire. In May 1985 the dwelling was totally destroyed by fire. Town & Country denied the claim and Mrs. Brooks filed suit. Town & Country pled affirmatively that the fire was intentionally set and that the dwelling had remained unoccupied for more than sixty days without the written permission of Town & Country which terminated coverage under the policy.

The parties waived a jury and the issues were tried to the court, which found the proof insufficient to support either of the defenses pled by Town & Country. However, the court found a material misrepresentation of fact in that Mrs. Brooks had experienced an earlier fire which she failed to disclose when applying for coverage with Town & Country. On that basis judgment was entered for Town & Country.

Mrs. Brooks has appealed upon three points of error: 1) The court erred in finding for Town & Country on the basis of an affirmative defense that was not pled; 2) the court erred in not requiring proof that any misrepresentation of fact was intentional in order to defeat the claim; and 3) the court erred in finding a material misrepresentation of fact in the absence of any proof as to materiality.

Affirmative Defense Issue

We agree that Town & Country neither pled material misrepresentation of fact nor introduced evidence to sustain a finding of material misrepresentation and, accordingly, we reverse and remand for a new trial on all issues.

Rule 8 (c), Arkansas Rules of Civil Procedure, requires that affirmative defenses shall be expressly pled in response to a complaint. That material misrepresentation is an affirmative defense is not subject to doubt. American Family Life Assurance Company v. Reeves, 248 Ark. 1303, 455 S.W.2d 932 (1970); Continental Casualty Company v. Campbell, 242 Ark. 654, 414 S.W.2d 872 (1967);44Am. Jur. 2d, Insurance, § 1918. Town and Country does not contend otherwise, rather it urges that under ARCP Rule 15(b) issues not set forth in the pleadings may be raised by express or implied consent of the parties and thereby treated in all respects as though they had been pled. The flaw in that argument is that we find nothing in the record to suggest that the issue of material misrepresentation became an issue in trial by either the implied or the express consent of the parties. When Mrs. Brooks was asked on cross-examination about a prior loss by fire her counsel immediately argued that that was a collateral issue and objected to further questions along that line. The trial court overruled the objection and some additional inquiry occurred, but certainly it cannot be inferred that this evidence was introduced with the implied consent of the plaintiff.

Rule 15(b)also provides that such amendment of the pleadings as may be necessary to cause them to conform to the evidence, and to raise these issues, may be made upon motion of any party at any time. However, we find no motion to amend throughout the trial or afterwards, and while the court has discretion in the allowance of motions to amend the pleadings, where the record reflects neither a motion to conform nor any basis for a determination that the evidence itself was impliedly acquiesced in, it seems clear that the judgment cannot rest upon an unpled affirmative defense.

Material Misrepresentation Issue

Even if it could be said the issue of material misrepresentation was impliedly introduced, we find no proof of materiality. All the record reflects is that Mrs. Brooks had a previous fire loss which was not mentioned when she and her husband applied for and obtained their coverage with Town & Country. The extent of the fire is not revealed, nor whether there were any suspicious circumstances. For all we know it may have been of unquestionable origin. Under the law Town & Country had the burden of showing that had it known of the earlier loss, the circumstances were such that it would not have issued the present coverage. Motors Insurance Corporation v. Tinkle, 253 Ark. 620, 488 S.W.2d 23 (1972); Old Republic Insurance Company v. Alexander, 245 Ark. 1029, 436 S.W.2d 289 (1969). That proof was wholly lacking.

Reversed and remanded.

Purtle, J., dissents.

John I. Purtle, Justice,

concurring in part and dissenting in part. I agree with the majority opinion that the trial court improperly considered the appellee’s affirmative defense of material representation. However, I would reach a different result because I find that the appellee’s failure to amend its pleadings prior to entry of the judgment bars consideration of any affirmative defense which appellee has not pled.

The appellee pled two affirmative defenses which the trial court, sitting as a jury, found unsupported by the evidence. So far as I am concerned, these factual findings were settled as well as those matters which were required to be pled. Both the law of the case and res judicata appear to me to bar a retrial of these matters of fact. Therefore, I would reverse and remand with directions to enter a judgment for the appellant in the amount of the policy limits, interest, costs, and attorney’s fees.

       Town & Country cross-appealed from the court’s denial of its arson and nonoccupancy defenses. It was not necessary to cross-appeal from the denial of these defenses. A cross-appeal is required only when the appellee seeks affirmative relief that he failed to obtain in the trial court, not when he won the case below and merely asks that the judgment be affirmed. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 669 (1979).


author: Tom Glaze, Justice.

text:
    Ronnie Lee BIRCHETT v. STATE of Arkansas
    CR 87-148
    741 S.W.2d 267
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987
    [Rehearing denied January 25, 1988.]

      William C. McArthur, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted of aggravated robbery, theft of property, and aggravated assault. He argues on appeal that the trial court erred in failing to grant a mistrial and , in limiting the appellant’s right to cross-examination. He also contends the evidence is insufficient to support the convictions. We find no error, and therefore affirm.

On the evening of August 13,1984, Thurl Harber and Gary Don Mason were watching television in Harber’s business trailer when they were robbed by an armed, masked man. After entering the trailer and announcing his purpose, the robber commenced to pistol-whip both men and to take their personal property, including cash, watches and a masonic ring. Harber was able to free himself and call for help, but, during that time, the robber escaped. After the robbery, Harber’s own investigation revealed the name of the appellant. Harber gave his information to the police, which later led to Harber’s identifying the appellant, out of five photographs, as the man who had robbed him.

Appellant’s first argument arises from Harber’s testimony at trial where Harber gave an unresponsive answer that his “buddy,” Mason, had also identified the appellant as the robber. Appellant objected to Harber’s answer as a hearsay statement of Mason, whom the state did not call as a witness. He moved for a mistrial, which the trial court denied. However, before denying the appellant’s motion, the trial judge offered to admonish the jury, but the appellant responded that an admonition would not correct the harm. The appellant argues that Harber’s unresponsive answer improperly bolstered the testimony about his identification, which appellant contends was the main issue at trial.

In addressing the question of when an unresponsive answer merits a mistrial, we have said that actual prejudice must have resulted from the remark. See Munnerlyn v. State, 293 Ark. 209, 736 S.W.2d 282 (1987). We have also held that, when a witness, in answer to a proper question, gives a nonresponsive answer stating matter that is incompetent and inadmissible as evidence, the trial court, on motion, should strike out the answer or so much of it as is improper, and direct the jury to disregard it as evidence. Queary v. State, 259 Ark. 123, 531 S.W.2d 485 (1976).

In the instant case, the appellant not only failed to make a motion to strike, he also refused the trial judge’s offer to admonish the jury. The appellant also failed to show that Harber’s unresponsive answer caused sufficient prejudice to merit a mistrial. In fact, the state made no attempt to develop or stress Harber’s answer before the jury. We have repeatedly held that a mistrial is such a drastic remedy that it is only appropriate if justice cannot be served by continuation of trial and when it is obvious that any possible prejudice cannot be removed by any other means. Lasley v. State, 274 Ark. 352, 357, 625 S.W.2d 466, 469 (1981). On the record before us, we cannot say the trial judge abused his discretion in denying appellant’s motion.

In his second point for reversal, the appellant contends that his counsel was unduly restricted in his cross-examination of Pamela Goodrich. At the time of the trial, Miss Goodrich, a multiple offender with previous criminal convictions, was serving a ten-year sentence in the Arkansas Department of Correction, Women’s Unit, for charges filed after the appellant’s arrest. Goodrich contacted the sheriffs office and offered to testify for the state against the appellant, her former boyfriend. The witness testified about her multiple offender status, current sentence, and prior convictions. In addition, she said that she had made no deal with the state for her testimony.

On cross-examination, appellant asked questions of Goodrich concerning her prior sentences for “hot checks,” forgery, and theft by receiving, as well as other charges pending against her. Over the state’s objection, the trial court, in an apparent attempt to expedite the trial, allowed appellant to show Goodrich a list of insufficient checks with which she had been charged. Appellant continued examining Goodrich on these same prior sentences and charges, including the disposition of those matters. As appellant continued his questioning of Goodrich, the trial court admonished counsel to go to something else; when he failed to do so, the court found him in contempt. Afterwards, appellant’s counsel continued his cross-examination and Goodrich testified that she received a ten-year sentence for all the charges pending against her, but reiterated her position that the state had made no deal for her testimony against the appellant. The trial court, again in an attempt to expedite the trial, directed that appellant’s counsel should pose no more questions about Goodrich’s sentences or conviction — a ruling which appellant claims is reversible error.

In McCorkle v. State, 270 Ark. 679, 607 S.W.2d 655 (1980), this court stated the general rule that a cross-examiner is given wide latitude and cannot be unduly restricted in eliciting facts which affect a witness’ credibility. The court, however, continued by stating it is not an abuse of discretion to interfere with or limit cross-examination of a witness when it appears the matter has been sufficiently developed and clearly presented to the jury. We have also held that the trial court does not abuse its discretion in limiting cross-examination when the questions asked and answers sought are merely repetitive. Nelson v. State, 257 Ark. 1, 513 S.W.2d 496 (1974); Vaugh v. State, 252 Ark. 260, 478 S.W.2d 759 (1972).

The record reflects that appellant asked and Goodrich answered those questions concerning all of her sentences and prior charges that directly bore on her credibility. Appellant’s counsel made the point very clear to the jury that the witness was in a position where she might have helped herself by testifying for the state. Because we believe appellant did sufficiently develop his line of questioning, testing Goodrich’s credibility, we are unable to say the trial court abused its discretion by unduly limiting appellant’s right of cross-examination. Although we find no reversible error at hand, we believe the guidance to the trial bench given by the court in Trammel v. State, 193 Ark. 21, 97 S.W.2d 902 (1936) is worth repeating. When confronted with the issue touching on a trial court’s tendency to limit cross-examination in order to expedite a trial, the court in Trammel said:

“The efforts of a trial court to dispatch the business before them is commendable, but the rights of an accused person, or a litigant before the court, to fully and properly present testimony in his own behalf and to cross-examine witnesses testifying adversely is of more importance, and should not be abridged, even for the sake of expedition.”

Id. at 27, 97 S.W.2d at 906.

Concerning appellant’s final argument, he moved for a directed verdict on all counts and specifically urged that the charge on the aggravated assault be dismissed or merged with the robbery charge, because the elements of aggravated assault are contained in the offense of aggravated robbery. The trial judge, finding there were two separate crimes involved, overruled appellant’s motion. We agree.

Aggravated robbery and its elements are set forth in Ark. Stat. Ann. § 41-2102 (Supp. 1985), which reads as follows:

(1) A person commits aggravated robbery if he commits robbery as defined in Section 2103 of Act 280 of 1975 (Arkansas Statutes Annotated 41-2103) and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
(b) inflicts or attempts to inflict death or serious physical injury upon another person.

The commentary to Ark. Stat. Ann. § 41-2103 (Repl. 1977) clearly reflects that the Arkansas Criminal Code has redefined robbery in a way that the focus of aggravated robbery has shifted from the taking of the property to the threat of physical harm to the victim. As noted in the commentary and which has since been stated by this court, one consequence of the definition is that the offense is complete when physical force is threatened; no transfer of property need take place. Higgins v. State, 270 Ark. 19, 603 S.W.2d 401 (1980).

Here, the appellant was armed when he entered the victims’ trailer and said, “This is a robbery.” When Harber and Mason failed to respond to his command, the appellant pistol-whipped them. Consistent with the purpose of § 41-2102, the appellant committed the aggravated robbery offense when he entered the trailer and announced his intent to rob Harber and Mason. His subsequent actions to pistol-whip them constituted a separate offense, viz., aggravated assault. See Ark. Stat. Ann. § 41-1604 (Repl. 1977).

Because we find no merit in the appellant’s arguments, we affirm.


text:
    Herman BOYKIN v. MR. TIDY CAR WASH, INC.
    87-226
    741 S.W.2d 270
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987

      Lynn A. Davis; and Valerie F. Boyce, Rule XII Student, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Tom Glaze, Justice.

This is an appeal from the granting of a directed verdict to the appellee in a slip and fall case. The appellant raises only one issue: the trial court erred in granting a directed verdict to the appellee. We agree, and therefore reverse and remand.

On March 28, 1986, appellant went to appellee’s place of business, a full service car wash. As is the custom of this type of car wash, appellant turned over his car to the employees for them to run it through the wash rack. After he saw that the employees were finished with his car, he exited the waiting room by stepping out of the door and off of the curb. Appellant fell and was apparently unable to stand due to pain from an injury to his knee, which later required surgery. Contending that he slipped and fell on soapy water, appellant filed suit against the appellees to recover for medical expenses resulting from this injury. After appellant presented his case, the trial judge granted the appellee’s motion for directed verdict, holding that the appellant’s evidence was too speculative.

In addressing the issue of whether a directed verdict should have been granted, this court must view the evidence in the light most favorable to the party against whom the verdict is sought and give it the highest probative value, taking into account all reasonable inferences deducible from it. Green v. Gowen, 279 Ark. 382, 652 S.W.2d 624 (1983). The motion should be granted only if there is no substantial evidence to support a jury verdict. Id. This court has held that where the evidence is such that fair minded people might have different conclusions, then a jury question is presented and the directed verdict should be reversed. See Stalter v. Coca-Cola Bottling Co., 282 Ark. 443, 669 S.W.2d 460 (1984).

Appellant’s burden of proof to prevail in a slip and fall case is set out in AMI Civil 2d, 1105. To establish a violation of the appellee’s duty to use ordinary care to maintain the premises in a reasonably safe condition, appellant must show either. 1) that the presence of the substance upon the premises was the result of negligence on the part of the appellee, or 2) that the substance had been on the premises for such a length of time that appellee knew or reasonably should have known of its presence and failed to use ordinary care to remove it. See also Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986); Skaggs Companies, Inc. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986). In Willmon, we said that the mere fact a patron slips and falls in a store does not raise an inference of negligence, and we further indicated that a jury may not be left to speculate concerning the origin or source of the “foreign substance” which caused the fall. By his complaint and his arguments at trial and on appeal, appellant makes it clear that he is trying to prevail by showing that the presence of the soapy water by the door was the result of negligence of the appellee.

In reviewing the record of the trial, the appellant presented the following evidence: 1) He testified that after he opened the door of the waiting room and stepped down from a curb, his foot slipped “like I hit ice or something;” 2) He said that after he fell, he “noticed there was water and soap, where it was running down in front of the door;” 3) He further related that the water and soap was coming from cars exiting the wash rack and that he was fairly certain that “this [the water and soap from rinsed cars] is what caused [him] to fall;” 4) Tom Beam, a frequent customer of the appellee, testified that he saw the appellant fall but did not see what caused the fall; 5) Beam also testified that immediately where the appellant fell he did not recall water, but he did state that approximately six feet away from the door, an employee of the car wash was rinsing off cars as they exited the car wash rack. In addition, Beam stated that the cars normally were finished before they exited the rack.

The trial judge granted the directed verdict, stating that, from the evidence, the jurors would have to speculate that the water in front of the door resulted from the car-wash employee’s actions. We can not agree. Appellant’s testimony showed that soapy water was running in front of the door he had exited, and Beam related that just six feet to the right of that door, an appellee’s employee was rinsing off cars as they exited the wash rack. In viewing, as we must, the testimony in appellant’s favor and deducing from the evidence all reasonable inferences, we believe the jury could have reasonably inferred from the evidence that the employee’s actions resulted in soapy water running in front of the door. Whether that evidence shows the appellee was negligent and the soapy water caused the appellant to fall are simply questions for the jury to answer. Accordingly, we reverse and remand for the jury to determine these questions of fact.

       In ruling on the directed verdict, the trial judge stated that there was insufficient evidence presented as to the question of appellee’s notice of the soapy water. The trial judge would be correct in his finding, if the appellant was proceeding under that method of proof.


text:
    Charles E. PENNINGTON v. STATE of Arkansas
    CR 87-131
    741 S.W.2d 266
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Frank J. Wills III, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This case involves a Rule 37 proceeding in which the appellant’s application for correction of illegal sentence was denied by the trial court. Appellant raises two arguments on appeal: 1) he was denied effective assistance of counsel, and 2) the state failed to honor his plea agreement. We affirm.

Appellant was charged with a total of seven counts of burglary and seven counts of theft of property. In return for the state recommending that he be sentenced for twenty years for burglary and five years for theft of property, the appellant pleaded guilty to all the charges. The sentences were to be served concurrently with each other and consecutively to a prior sentence which arose out of charges in Lincoln County. On February 13, 1987, appellant filed an application for correction of illegal sentence. In his application, appellant claimed that he was misinformed about what act would control the computation of his parole eligibility. His parole eligibility was computed in accordance with Act 825 of 1983, and appellant alleges that he had been informed that the computation would be done under Act 93 of 1977.

According to the appellant, his attorney committed error by misinforming him about which act would control his parole eligibility. In his second point, he argues that the state failed to abide by the plea agreement and that failure resulted in the appellant serving an additional three years when calculating his eligibility for parole. The basis for both of the appellant’s arguments on appeal is that he was misinformed about the calculation of his parole eligibility.

In reviewing appellant’s first point, a claim of ineffective assistance of counsel must be examined in the light of the criteria set out in Strickland v. Washington, 466 U.S. 668 (1984). See Burnett v. State, 293 Ark. 300, 737 S.W.2d 631 (1987). The Strickland standard requires a showing that: 1) so serious an error was made that the attorney was not functioning as the “counsel” guaranteed by the sixth amendment, and 2) the counsel’s deficient performance deprived the petitioner of a fair trial. There must be a showing that in all reasonable probability the outcome would have been different but for the counsel’s conduct. Burnett, 293 Ark. at 304. The appellant failed to state that he would not have pleaded guilty if he had been correctly informed about his parole eligibility, thus he has failed to show he was prejudiced in any way under the Strickland standard. See also Haywood v. State, 288 Ark. 266, 704 S.W.2d 168 (1986).

The appellant is correct in his contention that if the state does not live up to its end of the plea agreement, he must be allowed to withdraw his guilty plea. See Williams v. State, 272 Ark. 207, 613 S.W.2d 94 (1981). However, the appellant has failed to demonstrate to this court how the state has failed to abide by the plea agreement. According to the appellant’s argument, the only complaint about his sentence is the amount of time he will have to serve before becoming eligible for parole. This court has cited Hill v. Lockhart, 474 U.S. 52 (1985), for the proposition that the United States Constitution does not require the state to furnish the defendant with information about parole eligibility in order for the defendant’s plea to be voluntary. Haywood, 288 Ark. 266, 704 S.W.2d 168. Accordingly, the plea agreement made no mention of parole eligibility. We therefore affirm the trial court’s decision denying appellant’s petition for post-conviction relief.


author: Robert C. Compton, Special Justice. John I. Purtle, Justice,

text:
    HENDERSON METHODIST CHURCH, et al. v. SEWER IMPROVEMENT DISTRICT NO. 142, et al. John Abbott, et al. v. Sewer Improvement District No. 142, et al.
    87-92
    741 S.W.2d 272
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987

      Dan J. Kroha, for appellants.

      Wright, Lindsey & Jennings, for appellee Sewer Improvement District No. 142, and District Commissioners.

      Kaplan, Brewer & Miller, by: Phillip E. Kaplan, for appellee Assessor.

      Mark Stodola, City Att’y, by: Thomas M. Carpenter, for appellee.

      House, Wallace & Jewell, by: Don F. Hamilton, for appellee Little Rock Wastewater Utility.
   Robert C. Compton, Special Justice.

The Appellants assert that the Trial Court abused its discretion by refusing to grant their motion for an extension of time to file the record on appeal.

On August 1,1986, the chancellor caused to be filed with the Clerk his “Memorandum and Judgment” granting Appellees’ summary motions and dismissing the complaints with prejudice.

On August 29, Appellants filed a Notice of Appeal. On November 24, the Appellants filed a Motion For an Extension of Time to File the Record on Appeal. On November 25, the Motion was argued. The Appellants had ordered the record, but, due to a backlog, the reporter had not commenced preparation of this record. The Chancellor denied the motion for an extension of time solely upon the basis that Appellants’ counsel had failed to serve a copy of the Notice of Appeal on opposing counsel.

This ruling by the Chancellor was both erroneous and an abuse of discretion.

It is erroneous under the provisions of A.R.A.P. Rule 3(b) and (f) which state:

(b) An appeal shall be taken by filing a notice of appeal with the clerk of the court which entered the judgment, decree or order from which the appeal is taken. Failure of the appellant or cross appellant to take any further steps to secure review of the judgment or decree appealed from shall not affect the validity of the appeal or cross appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal or cross appeal, (our italics)
(f) A copy of the notice of appeal or cross-appeal shall be served by counsel for appellant or cross-appellant upon counsel for all other parties by any form of mail which requires a signed receipt. If a party is not represented by counsel, notice shall be mailed to such party at his last known address. Failure to serve notice shall not affect the validity of the appeal, (our italics)

The wording could hardly be clearer, and we have often held that such irregularities in following the rules of appellate procedure, other than the failure to file timely notice of appeal and to lodge the record, are not fatal. Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986); Brady v. Alken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981); Davis v. Ralston Purina Co., 248 Ark. 14, 449 S.W.2d 709 (1970).

Also, the Chancellor abused the discretion granted him by A.R.A.P. Rule 5(b) inasmuch as the reporter’s transcript had been ordered but not prepared and no reason was given for the denial of the motion to enlarge except the failure to serve a copy of the notice of appeal on opposing counsel.

Even so, we must affirm.

When the Chancellor denied Appellants’ motion for enlargement of time, he effectively terminated the Appellants’ appeal. A.R.A.P. 2(a)(2) provides that an appeal may be taken from “an order which in effect determines the action . . . .”

However, rather than taking an appeal, the Appellants elected, on November 26, to file in this Court their motion for Writ of Certiorari on the grounds that “The Court refused to enter an order granting an extension of time for his Court Reporter to prepare the transcript for an appeal of his decision of August 1, 1986 . . . .” The motion was filed pursuant to Rule 29.1 (i) of the Rules of the Supreme Court and the relief sought was for this Court to require “The Court Reporter to complete the record in this case so that Appellants may file same with this court.”

On December 15, this Court entered its Order denying Appellants’ Petition for Writ of Certiorari to complete the record.

On December 29, the Appellants filed a timely notice of appeal from the order denying the Appellants’ motion for enlargement of time.

The issue is whether the Appellants can first seek Certiorari and, being denied that Writ, then appeal.

This was decided in Bertig Bros. v. Independent Gin Co., 147 Ark. 581, 228 S.W. 392 (1921), where it is stated at page 584:

Certiorari can not ordinarily be used as a substitute for appeal, but the aggrieved party has the election to test the validity of the judgment on its face, either by appeal or by certiorari; and if he adopts the latter remedy, he can not afterward resort to the former, for it is the duty of an appellate court, if it is found that a judgment is not void, to affirm it, which cuts off any further review by appeal. Remedy by certiorari is not one which may be had as of right, but it is only at the discretion of the court, and it would be the duty of the court to refuse that remedy if the aggrieved party could afterward prosecute an appeal and had that remedy in contemplation.
The question falls within the general doctrine of election of remedies, and it is the duty of the party, where he has two remedies, one of which is limited in its scope and the other is general in its scope, to adopt, in the first instance, the remedy which will give complete relief; otherwise he is bound by his election to pursue the limited remedy, (our italics)

See also W. Bryant, Certiorari In Arkansas 17 Ark. L. Rev. 163 (1963).

Having elected to seek certiorari, the Appellants cannot now appeal.

Glaze, J., not participating.

Purtle, J., concurs in part and dissents in part.

John I. Purtle, Justice,

concurring in part and dissenting in part. I agree with the conclusion by the majority that the ruling by the chancellor refusing to grant the appellants an extension of time “was both erroneous and an abuse of discretion.” However, I dissent in the most vigorous way possible from the holding that the denial of the petition for certiorari precludes an appeal on the merits of the case. This decision does a great injustice to the appellate process and denies equal protection and due process to these appellants.

I think the majority misunderstands the decision in Bertig Bros. v. Independent Gin Co., 147 Ark. 581, 228 S.W. 392 (1921). If the majority is correct in its interpretation of Bertig Bros., we should overrule it at this time. This ancient decision should not require this court to put form over substance by denying these litigants their right to an appeal. Although Bertig Bros, is not quite 200 years old, it is as archaic as Lord Mansfield’s Rule.

Bertig Bros, appealed a trial court decision to the Arkansas Supreme Court and obtained a reversal. Prior to the mandate being issued by this court, the parties waived the filing of the mandate in the trial court and tried the case a second time. This judgment also went against Bertig Bros. They appealed from the second judgment by certiorari questioning the judgment entered at the second trial on the grounds that the trial court was without jurisdiction to try the case because the mandate had not been received by the trial court. This court held the judgment was valid and in a supplemental opinion stated:

It has always been the practice in this court where the record of the trial court is brought before us on certiorari which questions only the jurisdiction of that court, either to quash the judgment if it appears that the court has no jurisdiction, or to affirm it if the court had jurisdiction.

Obviously the court had the record of the trial before it when the Bertig Bros, opinion was rendered. The decision simply held that the judgment entered in the trial court was jurisdictionally valid because “[t]he waiver [of the filing of the mandate] itself presupposes that the Supreme Court had entered the judgment of reversal and ordered a remand of the cause for further proceedings.” In the case before us we not only did not review the record (because it was not completed), we did not review even the facial validity of the judgment because there was no record of the judgment to review.

The Bertig Bros, opinion further stated:
Certiorari can not ordinarily be used as a substitute for appeal, but the aggrieved party has the election to test the validity of the judgment on its face, either by appeal or by certiorari; and if he adopts the latter remedy, he cannot afterwards resort to the former, for it is the duty of an appellate court, if it is found that a judgment is not void, to affirm it, which cuts off any further review by appeal.

I agree that certiorari can not ordinarily be used as a substitute for appeal. However, I cannot agree with the proposition that the appellants, having elected to seek certiorari, cannot now appeal the judgment on its merits. I must point out that when we denied the petition for certiorari in the present case there was no record before us and therefore no judgment before us to review. Thus the statements in Bertig Bros, are not applicable to the present appeal. Moreover, under the rationale of the present decision, a party who petitions this court for a writ of prohibition, which petition also questions the jurisdiction of a trial court, cannot later appeal the trial court’s judgment on the merits if the petition is denied.

Implicit in this court’s denial of the petition for writ of certiorari was the fact that the writ is indeed discretionary and the assumption that the appellants had a remedy by appeal. The majority fail to recognize the purpose of a writ of certiorari. In State v. Nelson, Berry Petroleum Co., 246 Ark. 210, 438 S.W.2d 33 (1969), we held that certiorari was available in the exercise of this court’s superintending control over inferior courts which are proceeding illegally where there is no other adequate mode of review. Am. Jur. 2d defines certiorari as a writ issued by a superior to an inferior court requiring the return of the record and proceedings in order that the record may be revised and corrected in matters of law. 14 Am. Jur. 2d Certiorari § 1.

The majority opinion denies the appellants their right of review on the merits by appeal. We have many times held that an aggrieved party is entitled to one fair appellate review. This decision violates the basic concepts of fundamental fairness and equal protection of the laws. Our system of justice guarantees an aggrieved party the right to appeal the decision of a trial court. The decision of this court in this case denies these litigants this fundamental right essentially because their attorney used the wrong label on their request for relief from the ruling of the trial court; in other words, he “elected” the “wrong remedy.” Certiorari having already been denied, the effect of the decision today is that the appellants have no remedy at all.