author: Tom Glaze, Justice. Robert H. Dudley, Justice,

text:
    Mark BONNELL v. Honorable Kim M. SMITH, Judge, Second Division Circuit Court of Washington County, Arkansas
    95-147
    908 S.W.2d 74
    Supreme Court of Arkansas
    Opinion delivered October 16, 1995

      Donald C. Donner, for petitioner.

      Mima C. Kilgore, for respondent.
   Tom Glaze, Justice.

This case involves a petition for writ of prohibition. On March 21, 1994, petitioner Mark Bonnell’s former wife, Brenda Bonnell, filed a complaint for replevin against Bonnell in municipal court for possession of a 1984 Toyota, valued at $3,900.00. Mrs. Bonnell claimed right of possession through title to the vehicle and through the couple’s December 20, 1992 decree of divorce. On March 21, Mr. Bonnell was served with a summons and notice of petition for order of delivery, but he failed to object within five days pursuant to Ark. Code Ann. § 18-60-808(b) (1987). On April 5, the municipal court issued an order of delivery and the vehicle was seized.

Two days later, Mr. Bonnell filed a motion to dismiss his ex-wife’s complaint. In his motion he challenged the municipal court’s subject matter jurisdiction, requested vacation of the order of delivery, and requested Rule 11 sanctions. Mrs. Bonnell responded, claiming her ex-husband had waived his challenge by not responding within the required five day period.

The municipal court later found it did not have jurisdiction because the value of the vehicle in dispute exceeded the $3,000.00 original jurisdictional amount required by Ark. Code Ann. § 16-17-704(a)(4) (Repl. 1994). Upon Mrs. Bonnell’s request, the municipal court ordered the case transferred to circuit court. Mr. Bonnell then refiled his motions to dismiss and for sanctions in circuit court. He claimed that the municipal court correctly determined it had no jurisdiction of Mrs. Bonnell’s action and that the court in so holding should have dismissed rather than have transferred the case to circuit court. Mrs. Bonnell amended her complaint in circuit court to include an additional claim for $14,000.00 that she asserted was due her under the parties’ divorce decree. Mr. Bonnell renewed his motions, and later argued to the circuit court that the chancery judge had already decided the $14,000.00 claim.

The circuit court conducted a hearing on October 27, 1994, and denied Mr. Bonnell’s motions, ruling that it had subject matter jurisdiction over the replevin action. The circuit court recessed without deciding whether Mrs. Bonnell was precluded from pursuing her $14,000.00 claim. Bonnell subsequently petitioned this court for a writ of prohibition.

A writ of prohibition is an extraordinary writ, which is only granted when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted. West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994). When considering a petition for writ of prohibition, jurisdiction is tested on the pleadings, not the proof. Nucor-Yamato Steel Co. v. Circuit Court, 317 Ark. 493, 878 S.W.2d 745 (1994). Prohibition is only proper when the jurisdiction of the trial court depends on a legal rather than a factual question. Id.

First, we point out that both municipal and circuit court may have jurisdiction of a replevin action. Ark. Code Ann. § 18-60-804 (1987). Section 18-60-804 provides as follows:

(a) In all cases . . . wherein a party claims a right of possession of property in the possession of another, the party may apply to the circuit court or the municipal court for issuance of an order of delivery of the property.
4= * 4=
(c) The petition may be brought in the municipal court at the election of the party so filing, and the municipal court shall have authority to give notice and hear the petition in the same manner as the circuit court. (Emphasis added.)

Generally speaking, a replevin action can be maintained only by one who has a general or special property interest in a thing taken or detained at the commencement of the action. Anderson v. Sharp County, Arkansas, 295 Ark. 366, 749 S.W.2d 306 (1988) (citation omitted). And such right of possession or ownership must be by a title recognized in law. Id.

The only limitation on a municipal court’s authority to act on a claim in replevin is found at Ark. Const, amend. 64 and Ark. Code Ann. § 16-17-704(a)(4), wherein the municipal court is given original jurisdiction, coextensive with the county where it is situated, and concurrent with the circuit court in matters of contract where the amount in controversy does not exceed $3,000.00, excluding interest. A circuit court, on the other hand, has jurisdiction over a claim in replevin for personal property valued above $3,000.00. See Ark. Const. art. 7 § 11; Ark. Code Ann. § 16-13-201 (Repl. 1994) and § 18-60-804. In the present case, Mrs. Bonnell’s complaint alleged that she possessed title to a 1984 Toyota vehicle valued at $3,900.00 which she obtained under the Bonnells’ divorce decree and which was being unlawfully detained by Mr. Bonnell. Clearly, Mrs. Bonnell’s replevin action was properly within the jurisdiction of the Washington County Circuit Court, and, as a consequence, a writ of prohibition does not lie in these circumstances.

Mr. Bonnell argues further, however, that the municipal court had no authority to transfer Mrs. Bonnell’s replevin action to circuit court in the first place, and instead the municipal court was obliged to dismiss, not transfer Mrs. Bonnell’s case. We disagree.

Both Arkansas statutory law and our Rules of Civil Procedure provide authority permitting the municipal court to transfer Mrs. Bonnell’s action as it did here. Ark. Code Ann. § 16-17-702 (1987) provides that all civil cases filed in municipal court (not subject to the Small Claims Procedure Act) shall be subject to the Inferior Court Rules, the Rules of Civil Procedure, and the Uniform Rules of Evidence. Section 16-17-702 reflects the General Assembly’s efforts to implement Amendment 64 to the Arkansas Constitution which enlarged the jurisdiction of municipal courts. This same statutory principle is embodied in Inferior Ct. R. 10, as well. Inferior Ct. R. 10 states that, unless otherwise allowed, “the Arkansas Rules of Civil Procedure and the rules of evidence shall apply to and govern matters of procedure and evidence in the inferior courts.” And finally, this court’s Ark. R. Civ. P. 12(h)(3) provides the following:

Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action or direct that the case be transferred to the proper court. (Emphasis added.)

As is clearly provided by Arkansas’s statutory law and court rules, the municipal court had authority to transfer this cause to the Washington County Circuit Court after concluding Mrs. Bonnell’s replevin action exceeded the jurisdictional amount. Mr. Bonnell defended Mrs. Bonnell’s initial action by asking that it be dismissed, but acting under Rule 12(h)(3), the municipal court appropriately transferred the action instead. Mr. Bonnell does not challenge the constitutionality of these court rules or statute, and we are unaware of any such grounds that would limit the municipal court’s discretion in transferring a replevin action to circuit court in circumstances such as those presented here.

Again, Mrs. Bonnell in her complaint claimed rightful possession of the vehicle through “title showing her as owner.” While she also claimed possession through the couple’s divorce decree, it is the claim by way of title that places jurisdiction properly in circuit rather than chancery court. See Johnson v. Swanson, 209 Ark. 144, 189 S.W.2d 803 (1945). Had Mrs. Bonnell claimed right to possession from the divorce decree alone, jurisdiction to enforce the terms of the decree would have been properly in chancery court through exercise of its contempt powers. See Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983).

For the foregoing reasons, we deny the petition.

Dudley, Newbern and Roaf, JJ„ dissent.

Robert H. Dudley, Justice,

dissenting.

The writ of prohibition should be issued because suit has never been commenced, and the circuit court is without jurisdiction over petitioner and is about to proceed against petitioner.

I.

Brenda Bonnell filed suit in municipal court and obtained service on her former husband, petitioner, who now seeks a writ of prohibition. She sought replevin of a car valued at $3,900.00, which is in excess of the municipal court jurisdictional amount. Petitioner filed a motion to dismiss because the municipal court lacked jurisdiction.

A municipal court is a court of limited and restricted jurisdiction. Bynum v. Patty, 207 Ark. 1084, 184 S.W.2d 254 (1944); see Ark. Code Ann. § 16-17-704 (Repl. 1994). Courts of limited and restricted jurisdiction have only such jurisdiction and powers as are expressly conferred by statute, or the constitution, or are necessarily incident thereto. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976). Neither the constitution nor the applicable statutes give municipal court jurisdiction over a replevin claim in the amount of $3,900.00. Ark. Const. art. 7, § 40; Ark. Const. amendment 64 § 1; Ark. Code Ann. § 16-17-704. Jurisdiction is never presumed in a court of limited jurisdiction. Morris v. Dooley, 59 Ark. 483, 28 S.W. 30 (1894). It has long been established that, when a replevin action is filed in a court of limited and restricted jurisdiction, the value must be shown in order for the court of limited jurisdiction to “acquire jurisdiction,” otherwise the act of the judge is a “nullity.” McClure v. Hill, 36 Ark. 268, 272 (1880). The municipal court was without subject-matter jurisdiction in this replevin action.

The municipal court recognized it was without jurisdiction and transferred the case to circuit court even though it had no subject-matter jurisdiction over the replevin action. That act was of no effect. A municipal court has neither statutory nor constitutional authority to transfer a case to circuit court when a case is erroneously filed in that court. We have long had statutes that authorize the transfer of cases between courts of general jurisdiction, but we have never had a statute that authorizes a transfer such as the one now before us. Ark. Code Ann. § 16-13-401 (Repl. 1994); Ark. Code Ann. §§ 16-57-104 to -109 (1987 & Supp. 1993). In McLain v. Brewington, 138 Ark. 157, 211 S.W. 174 (1919) we wrote:

The statute authorizing transfers of causes from the circuit to the chancery court, or vice versa, applies only to those actions which originate in one or the other of those courts (Kirby’s Digest, §§ 5991, 5994, 5995), and does not confer authority for the transfer of a cause appealed to the circuit court from one of the inferior courts. Jackson v. Gorman, 70 Ark. 88; McCracken v. McBee, 96 Ark. 251; Brownfield v. Dudley E. Jones Co., 98 Ark. 495.
There was no objection to the transfer of the cause, but consent can not confer jurisdiction of the subject-matter of the proceedings where such jurisdiction count not, under any circumstances, otherwise exist. Price v. Madison County Bank, 90 Ark. 195.

Id. at 161, 211 S.W. at 175; see also State v. J.B., 309 Ark. 70, 827 S.W.2d 144 (1992). Because the municipal court could not transfer the case to circuit court, and because no service was had in circuit court, a case was never commenced in circuit court. See ARCP Rule 3.

When circuit court has subject-matter jurisdiction, as here, and the question of personal jurisdiction turns on some fact to be determined by the court, a decision that the trial court has personal jurisdiction, even if wrong, does not warrant the issuance of a writ of prohibition. However, when there is a complete want of service of process and the circuit court is about to proceed, the writ can be issued. Gillioz v. Kincannon , 213 Ark. 1010, 214 S.W.2d 212 (1948); Order Ry. Conductors of America v. Bandy, 177 Ark. 694, 8 S.W.2d 448 (1928) overruled on other grounds; Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W.2d 672 (1937); see also Fausett v. Host, 315 Ark. 527, 868 S.W.2d 472 (1994). Here, there has been no valid service of process on the petitioner, he has not entered his appearance, the suit was never commenced in the circuit court, and, therefore, the writ should issue.

II.

The majority opinion states that Ark. Code Ann. § 16-17-702 (1987), in conjunction with Inferior Ct. R. 10 and ARCP Rule 12(h)(3), give the municipal court authority to transfer this case. The reasoning is demonstrably flawed.

Section 17-17-702 of the Arkansas Code Annotated is a general statute which states that municipal courts, except in small claims cases, are subject to the Inferior Court Rules and the Rules of Civil Procedure. It contains no specific reference to transfer of cases.

Rule 10 of the Inferior Court Rules provides that, where applicable and unless otherwise specifically modified, the Rules of Civil Procedure shall apply to the inferior courts. It contains no specific reference to transfer of cases.

Rule 12(h)(3) of the Arkansas Rules of Civil Procedure provides: “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action or direct that the case be transferred to the proper court.” Id. (emphasis added).

The majority opinion’s holding that the municipal court has authority to transfer a case that is erroneously filed in municipal court is based on the above underlined provision. A review of our earlier statute, the Rules of Civil Procedure, and the Inferior Court Rules shows the flaw in that reasoning.

The authority for municipal courts to transfer cases to circuit court was first granted in Act 488 of 1963, which was codified as Ark. Stat. Ann. § 27-2007 (Supp. 1965). It provided that the municipal court could transfer a case to circuit court upon the request of a defendant when the defendant “shall file a cross-complaint or counterclaim seeking recovery of an amount which exceeds the jurisdiction of the court." The act was entitled: AN ACT to Provide for the Transfer of Civil Cases from Courts of Limited Jurisdiction to the Circuit Court of the County Wherein the Case Originates, When a Cross-Complaint or Counter-Claim Filed by the Defendant or Defendants Exceeds the Jurisdiction of the Lower Court."

The basic rule of statutory construction is to give words their usual and ordinary meaning, Arkansas Vinegar Co. v. Ashby, 294 Ark. 412, 743 S.W.2d 798 (1988), and, if there is no ambiguity, the statute is given effect just as it reads. Chandler v. Perry-Casa Public School Dist. No. 2, 286 Ark. 170, 690 S.W.2d 349 (1985). In addition, this court has often held that an act that undertakes to govern a subject through an affirmative description of granted implies denial of any non-described powers. See, e.g. Chem-Ash, Inc. v. Ark. Power and Light Co., 296 Ark. 83, 751 S.W.2d 353 (1988); Cook v. Arkansas-Missouri Power Corp., 209 Ark. 750, 192 S.W.2d 210 (1946). Thus, the statute authorizing transfer from municipal court authorized transfer only upon the filing of a counter-complaint or cross-complaint that exceeded the municipal court’s jurisdiction. There was no authority to transfer a case that was erroneously filed in municipal court.

The cited statute was superseded by the Inferior Court Rules. See Per Curiam entered by this court on December 18, 1978. (A copy can be found in the Reporter’s notes to Rule 1 of the Rules of Civil Procedure). The statute, Ark. Stat. Ann. 27-2009, was superseded by Inferior Ct. R. 7. The compiler’s notes to Ark. Stat. Ann. § 27-2009 (Repl. 1979) provide:

In accordance with the per curiam order of the Supreme Court of Arkansas, entered on December 18, 1978, this section (Acts 1963, No. 488, § 1, p. 1558), concerning transfer to the circuit court when a cross-complaint or counterclaim exceeds the lower court’s jurisdiction, is deemed superseded by the enactment of the Arkansas Rules of Civil Procedure, Rules of Appellate Procedure, and Rules for Inferior Courts. See Rule 7, ARIC.

Id. (emphasis added).

The annotator was correct: Rule 7 of the Inferior Court Rules is the only rule that directly addresses the issue. When we adopted the Rules of Civil Procedure and the Inferior Court Rules, we continued in effect the earlier statutory law providing for transfer by courts of limited jurisdiction. We made no changes. Rule 7 of the Inferior Court Rules authorizes transfer in those cases in which a counterclaim, set-off, cross-complaint, or third party complaint is filed and raises the amount, or invokes an equitable defense, outside the municipal court’s jurisdiction. Rule 7 is as follows:

JURISDICTION — EFFECT OF COUNTERCLAIM, CROSS-COMPLAINT OR THIRD PARTY COMPLAINT
(a) Compulsory Counterclaim. Where a counterclaim which is compulsory under Rule 13(a) of the Arkansas Rules of Civil Procedure or a set-off involves an amount which would cause the court to lose jurisdiction of the cause, the court upon its own motion or upon motion of either party, shall transfer the entire cause to circuit court for determination therein as if the cause had been appealed.
(b) Permissive Counterclaim, Cross-Complaints and Third Party Complaints. Where a permissive counterclaim or a cross-complaint or third party complaint involves an amount which would otherwise cause the court to lose jurisdiction of the cause, the court shall disregard such counterclaim, cross-complaint or third party complaint and proceed to determine the claim of the plaintiff.

Id. (emphasis added); See also reporter’s notes to Inferior Ct. R. 7.

Our rules continued in effect our earlier statutory law. The majority opinion makes a fundamental error when it assumes that the last phrase in ARCP Rule 12(h)(3), which provides for transfer, changed the earlier law. The majority opinion does not recognize that ARCP Rule 12 is titled “Defenses and Objections — When and How Presented — By Pleading or Motion—Motion for Judgment on the Pleadings,” and subsection (h) is titled “Waiver or Preservation of Certain Defenses.” (Emphasis added.) Rule 12 of the Arkansas Rules of Civil Procedure is related to Defenses and Objections, and the language emphasized in the majority opinion, just as in the prior statutory law, refers only to the transfer in those cases in which a cross-complaint, counterclaim, or set-off is filed by a defendant, and exceeds the jurisdiction of the municipal court. Rule 12 of the Arkansas Rules of Civil Procedure is wholly compatible with Inferior Ct. R. 7, and ARCP Rule 12 does not apply to the erroneous filing of a complaint in municipal court by a plaintiff as provided in the majority opinion.

The majority opinion fails to recognize the distinction between allowing a plaintiff who erroneously files a case in municipal court to seek transfer and allowing a defendant who files a compulsory counterclaim that exceeds the municipal court’s jurisdiction to do so. Underthe majority opinion, a plaintiff can now file a cause of action in municipal court that is in excess of the municipal court’s jurisdiction, and the municipal court can subsequently transfer the case to a court of general jurisdiction. This will allow the tolling of the statute of limitations even though the court never had subject-matter jurisdiction. The prior statutory law did not allow such a tolling, because the transfer could take place only upon filing a defense that exceeded the jurisdiction of the lower court. The Rules of Civil Procedure and the Inferior Court Rules did not change the prior law, and the majority opinion is in error in holding that they do make such a change.

Ill

The majority opinion is also in error for policy reasons.

A.

Under ARCP Rule 3 a civil action currently is commenced by filing a complaint with the clerk of the proper court. A complaint filed in a court of general jurisdiction must state, in ordinary and concise language, the reason a party is entitled to relief. ARCP Rules 8 and 12; Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). Unlike the practice in the general jurisdiction courts, a plaintiff in municipal court need only complete a fill-in-the-blank “claim form.” Inferior Ct. R. 4. Under the precedent of the majority opinion, a claim form, whether as complete as the complaint at bar or containing only fill-in’s, can be filed in municipal court and then can be transferred to circuit court later as the complaint. The result will be that in circuit court, if a fill-in form has been used, there will be no factual statement, in ordinary and concise language, of the cause of action, as is now required by the Rules of Civil Procedure. The plaintiff will no longer be required to commence an action “by filing a complaint with the clerk of the proper court.” There could be a question about a ARCP Rule 12(b)(6) motion.

B.

The majority opinion could lead to an abuse of court powers by some parties. Suppose that a large group of creditors, such as a group of medical providers, chooses to file all of its collection suits, regardless of the amount, in a municipal court. The complaints could be filed in mass by filling in the blanks on claim forms. The court costs would be lower, and a non-lawyer can file the suit. See Peel v. Kelly, 268 Ark. 90, 594 S.W.2d 11 (1980). The filing of the suit, regardless of the amount of the debt, would toll the statute of limitations. If one of the debtors were to question the procedure, the creditor, represented by a non-lawyer, could simply ask for the suit to be transferred to the circuit court, pay additional court costs, and have a circuit court suit that had been pending since it was filed in municipal court. The result would be that a debtor could be held liable for a debt long past the time that a cause of action should have been filed in the proper court.

IV.

The municipal court was without subject-matter jurisdiction over this replevin action because the item to be replevied was worth more than $3,000. The only service of process was in municipal court. Subject-matter jurisdiction of this replevin action was at all times in circuit court, a court of general jurisdiction, and an action was never commenced in that court. The municipal court had no authority by constitution, statute, or rule to take action on the claim; yet, it transferred the case to circuit court. The circuit court has no personal jurisdiction over the defendant, and the writ of prohibition should issue.

For the foregoing reasons, I respectfully dissent.

Newbern and Roaf, JJ., join.

       We note that, although the dissenting opinion alludes to a number of old Arkansas cases in support of its vein that a municipal court cannot transfer a case to circuit court, it is unnecessary to discuss them since they predate Amendment 64 and the General Assembly’s enactment of § 16-17-702.

       We reiterate that, under § 18-60-804(c), a municipal court must notify defendants and hear replevin actions in the same manner as circuit court, and actions commenced in municipal court depend upon the same standards applicable to actions in circuit and chancery courts. See Inferior Ct. R. 3 and its Reporter Notes.

       We further note the dissenting opinion’s confusing reference on whether Mrs. Bonnell properly commenced her replevin action, and its mentioning hypothetical problems involving a statute of limitations. These issues were never raised below or argued on appeal, likely because Mrs. Bonnell’s complaint was factually detailed and her cause for replevin was lawfully stated and properly served. Because municipal court actions are subject to Arkansas Rules of Civil Procedure, § 16-17-702, the dissenting opinion’s prediction of municipal judges and parties abusing the court process cannot happen any more readily than in any circuit or chancery court subject to the same rules.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Johnny TITTLE v. Ron WOODRUFF; and Ernest Cate, Jo Dodson, and Job Serebrov (Comprising the Washington County Election Commission)
    95-375
    907 S.W.2d 734
    Supreme Court of Arkansas
    Opinion delivered October 16, 1995

      Charles R. Fuqua, for appellant.

      Marsha C. Woodruff, for appellees.
   Tom Glaze, Justice.

This is an election case which involves candidates who sought election to the office of Justice of the Peace of District 9 in Washington County. On or before April 5, 1994, John R. Smith filed as a Democratic Party candidate and Johnny Tittle filed as a Republican Party candidate for this office. Both candidates were unopposed. On or before June 7, 1994, the respective party county committees met to canvass election returns and certify the primary election results, and June 20, 1994 was the date political party county conventions met to certify nominees for township and other offices. See Ark. Code Ann. §§ 7-7-203(h) and -102 (Repl. 1993). No one contested either Smith’s or Tittle’s respective party certifications of nomination within the twenty-day period established in Ark. Code Ann. § 7-5-801 (Repl. 1993), which ended on June 27, 1994.

In preparation for the November 8, 1994 General Election, the respective party county committees or conventions were required under Ark. Code Ann. §§ 7-1-101(4) and 7-7-203(k)(2) (Repl. 1993) to file their final certified lists of township nominees no later than September 23, 1994. However, prior to that September 23rd date, Smith notified the Washington County Democratic Committee by letter dated September 12, 1994, that he must withdraw his candidacy, because he discovered that he resided just outside Quorum Court District 9. In other words, Smith could not serve if elected.

On September 14, 1994, the Washington County Democratic Convention, pursuant to Ark. Code Ann. § 7-7-401 (Repl. 1993), chose Ronald G. Woodruff as its replacement for Smith, and it certified Woodruff as its party nominee for the District 9 Justice of the Peace position. Woodruff defeated Tittle in the November 8 General Election, but, on November 28, 1994, Tittle filed a declaratory judgment and mandamus action, asking the circuit court to declare Woodruff’s election null and void, and requesting the county board of election commissioners to certify Tittle as the only candidate eligible for that office. The circuit court denied Tittle’s request for relief and Tittle brings this appeal claiming the circuit court erred in doing so. We affirm.

Tittle’s argument is premised on his reading of § 7-1-101(4) which defines “vacancy in nomination.” That provision defines the term as the circumstances in which the nominee of a political party selected at a primary election shall not be certified as the nominee due to death, resignation, withdrawal, or other good and legal cause arising subsequent to nomination and preceding the final date for certification of nominations.

Tittle asserts that Smith had never been certified as the Democratic justice of the peace nominee for District 9, but instead he withdrew his candidacy on September 12th before his party committee certified his nomination on September 23rd. Because Smith withdrew when he did, Tittle contends no vacancy in nomination occurred as contemplated by § 7-1-101(4); therefore, Woodruff’s nomination was void.

We first point out that, contrary to Tittle’s assertion, Smith became the Democratic nominee for District 9 Justice of the Peace, and he was declared as such when he was certified as the unopposed winning candidate at the primary election. See § 7-7-102. On the first Monday following the general primary election held on June 14, 1994, the Washington County party conventions were required to meet, and immediately following the conventions, the respective party county committee members were mandated by law to certify their lists of duly nominated candidates for county, township, and municipal officers to the county board of election commissioners and the county clerk. See § 7-7-203(i) and (j). By law, the party convention and committee actions here took place on or about June 20, 1994. As previously mentioned, no one contested Smith’s certification of nomination or certificate of vote within the twenty-day period provided under § 7-5-801. As a consequence, Smith was the certified Democratic nominee for the District 9 Justice of the Peace position before and at the time he withdrew his nomination leaving a vacancy in September 1994.

Citing Stewart v. Hunnicutt, 178 Ark. 829, 12 S.W.2d 418 (1929), Tittle states he had no standing to challenge Smith’s candidacy or certification. He then suggests that, if we uphold Woodruff’s election in these circumstances, political parties can then allow ineligible candidates to file for an office, win the primary election and then the party could substitute an eligible nominee in the ineligible candidate’s stead. Tittle laments that the filing deadline for candidates would be rendered ineffectual.

Tittle’s voiced concern ignores established law that gives a citizen the right to challenge the qualifications and eligibility of a candidate and to remove his or her name from the ballot, if found ineligible. See Davis v. Holt, 304 Ark. 619, 804 S.W.2d 362 (1991); State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989). In the Craig-head County case, this court noted that Ark. Code Ann. § 7-5-207(b) (Repl. 1993) prohibits the inclusion of an ineligible candidate on an election ballot; the court then set out the appropriate procedure whereby citizens could enforce that law by filing an action for mandamus and declaratory relief. This remedy, as mentioned in Craighead County, provides prompt consideration for determining a candidate’s eligibility and, if determined ineligible, the removal of that candidate’s name before the election. Arkansas’s election procedure and remedies afforded voters, candidates and other interested parties leaves little leeway for the type abuse suggested by Tittle.

Finally, Tittle fails to address the fact that he had the opportunity to raise the legal issue of Smith’s and Woodruff’s eligibility immediately upon the Democratic Party’s certification of Woodruff as that party’s nominee on September 23, 1994. Under the remedy afforded under Craighead County, either Tittle or a citizen could have legally challenged the placement of Woodruff’s name on the November 8, 1994 General Election ballot, but for whatever reason, Tittle chose to challenge Woodruff’s qualifications after the election.

While a voter, candidate or other interested party might still successfully challenge the results of an election after it is held, this court has held many times that elections will not be invalidated for alleged wrongs committed unless those wrongs were such to render the results doubtful. Id. That certainly is not the situation here, nor does Tittle suggest the November 8 election results themselves were in question.

For the reasons above, we hold the circuit court was correct in holding Woodruff’s nomination complied with § 7-7-101(4) and in dismissing Tittle’s complaint.


author: Robert L. Brown, Justice.

text:
    Lannie TRULL v. STATE of Arkansas
    CR 95-631
    908 S.W.2d 83
    Supreme Court of Arkansas
    Opinion delivered October 16, 1995

      Bart E. Ziegenhorn, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant in this case, Lannie Trull, was convicted of aggravated robbery and sentenced to life imprisonment. He appeals on two grounds: that his statement to a police officer was involuntary, and that a comment by a police officer at trial concerning a “pattern” of robberies warranted a mistrial. We disagree, and we affirm the judgment.

On August 23, 1994, at about 10:00 p.m., the Little Caesar’s Pizza restaurant in West Memphis was robbed. The robber was wearing a mask, a ski cap, and gloves and was armed with a pistol. West Memphis Police Officer Shane Griffin was on his way home when he heard that the robbery had occurred in the vicinity. While driving in the area, he spotted a person carrying a black bag and gave chase. In the bag were a mask, a pillow case, a revolver, and loose cash. He arrested the person, who was Trull, and gave him the Miranda warnings. At a pre-trial Denno hearing, Officer Griffin testified that Trull told him: “Well, I guess it’s finally over.”

At the same Denno hearing, West Memphis Police Officer Anthony Bradley testified that after he arrived at the crime scene, he heard Officer Griffin read Trull his Miranda rights. He testified that Trull then told him (Bradley) that he was glad it was finally over. Trull went on to relate to Officer Bradley that he had performed a series of robberies because he had lost his job and needed money.

At the conclusion of the Denno hearing, the trial court suppressed the statement made to Officer Griffin because of the discrepancy between the statements of the two officers as to when the Miranda rights were read to Trull and as to what transpired thereafter. The court found that Officer Bradley was a credible witness and that Trull’s statement to Bradley was voluntary.

At the trial that followed, Officer Bradley testified that Trull told him that he was relieved that he had been caught, that he was glad it was over, and that he had committed the robbery because he had lost his job and needed the money. Also at the trial, Officer Griffin testified on direct examination:

We’ve had, over the past few months, quite a few robberies and stuff, and from everything we’ve, I’ve found out before, we could tell a pattern that was running, usually some. . .

Defense counsel objected and moved for a mistrial. The trial court denied the motion and offered to give a curative instruction to the jury. Defense counsel asked that this not be done. Trull took the stand in his defense and denied ever speaking to Officer Bradley. The verdict of guilty was returned. At the sentencing phase, nine prior convictions out of Tennessee were introduced into evidence pursuant to Act 535 of 1993, now codified at Ark. Code Ann. § 16-97-103 (Supp. 1993). The sentence of life imprisonment was imposed.

Trull first argues that because the trial court ruled that the statement given to Officer Griffin was inadmissible due to doubtful Miranda warnings, the statement given to Officer Bradley should also be suppressed because the statement to Officer Bradley was based on the same Miranda warnings. On appeal, this court must make an independent determination of the voluntariness of a confession. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995). But in doing so, “we review the totality of the circumstances and will reverse only when the trial judge’s finding of voluntariness is clearly against the preponderance of the evidence.” Weaver v. State, 305 Ark. 180, 187, 806 S.W.2d 615, 619 (1991). Conflicts in the testimony are for the trial court to resolve, and again, we will not reverse unless the trial court’s finding is clearly erroneous. Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994).

Trull’s argument does not necessarily hold true, and he cites no authority to support it. The fact that the trial court found that the State had not met its burden of proving the voluntariness of the alleged statement to Officer Griffin does not automatically disparage the statement that Officer Bradley contends was made to him. See Oregon v. Elstad, 470 U.S. 298 (1985). In Elstad, the Court held that the Fifth Amendment did not require the suppression of a statement, made after proper Miranda warnings and a waiver of the same, solely because a police officer had obtained an earlier voluntary but unwarned statement from the same defendant. Here, Officer Bradley testified that he was present when Officer Griffin read Trull his Miranda rights. He further testified that Trull’s statements to him followed the Miranda warnings. Trull argues that Officers Griffin and Bradley were inconsistent as to when Griffin read Trull his rights. Even if this is so, the trial court found Officer Bradley to be a credible witness and Trull’s statement to Bradley to be voluntarily made after appropriate Miranda warnings had been given. There is no basis for a conclusion by this court that the trial court was clearly wrong in finding Trull’s statements to Officer Bradley to be voluntary and, therefore, admissible.

For his second point, Trull maintains that the trial court erred in refusing to grant a mistrial after Officer Griffin’s reference to a “pattern” of robberies. We note initially that Officer Griffin did not tie Trull directly into the robberies to which he alluded. The trial court also referred to this fact, when it denied the motion for mistrial. Despite this, the trial court did offer to give a curative instruction, which defense counsel refused. We have often commented on the drastic nature of the mistrial remedy. See, e.g., Richmond v. State, 320 Ark. 566, 899 S.W.2d 64 (1995); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995); Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994).

A mistrial is appropriate only when the possible prejudice cannot be cured by some admonition or curative instruction to the jury. See Furlough v. State, 314 Ark. 146, 861 S.W.2d 297 (1993). In Furlough, a testifying police officer referred to the defendant as a suspect in other robberies. The trial court admonished the jury to disregard these references, and we affirmed the defendant’s judgment of conviction and held that the admonishment was sufficient. Here, defense counsel refused a curative instruction offered by the trial court. That was defense counsel’s choice. We find no abuse of discretion flowing from the trial court’s handling of this matter or in its ruling on this point.

The record in this case has been reviewed for other reversible error in accordance with Supreme Court Rule 4-3(h), and none has been found.

Affirmed.


author: Andree Layton Roaf, Justice.

text:
    Ronald COLLINS v. STATE of Arkansas
    94-1066
    908 S.W.2d 80
    Supreme Court of Arkansas
    Opinion delivered October 16, 1995

      Kathy A. Cruz, for appellant.

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

This is an interlocutory appeal from the granting of the State’s motion to transfer appellant Ronald Collins’ case from juvenile to circuit court. We affirm the trial court’s decision to grant the motion to transfer.

On July 15, 1994, Ray Shoptaw, a criminal investigator with the Garland County Sherriff’s Office, was conducting surveillance from an unmarked police car parked in front of the house next door to appellant’s home in Hot Springs. Mr. Shoptaw testified that there had been numerous burglaries and thefts from homes in the area, and that appellant and his brother were considered by his office to be suspects in these burglaries. Shortly after noon, Mr. Shoptaw saw appellant, age 16, his brother and another adult male come out of appellant’s home with nothing in their hands, and walk into some nearby woods; about an hour and a half later, he heard gunshots and muffled voices coming from the same area of the woods. A short while later, Mr. Shoptaw saw appellant and his two companions walk out of the wooded area carrying something in their hands. All three were arrested for residential burglary and searched incident to their arrest. One of appellant’s companions had a .22 caliber revolver and numerous pieces of jewelry wrapped in an article of clothing, a pair of gloves and a large screwdriver. Appellant’s brother had a .22 derringer and a pair of gloves with a diamond ring inside one glove. The arresting officers found a pair of gloves and a pistol holster on the appellant. The jewelry, guns and holster were later identified as items stolen in the burglary of a residence in the area. The companion of the Collins brothers admitted to officers that the three had committed this burglary and another burglary on the previous day. Appellant was out on bond for a pending burglary charge at the time of his arrest.

On August 4, 1994, the transfer hearing was conducted; the arresting officer, appellant’s probation officer and appellant’s mother testified at this hearing. At the conclusion of the hearing the trial court made the following ruling:

THE COURT: Based upon the testimony that I’ve heard, I find that there is clear and convincing evidence that this matter should be transferred to the Circuit Court of Garland County, Arkansas.
I make the following findings: that first, this is indeed a serious offense. As I recall, there are just Y and A above a Class B felony, which is what the defendant’s charged with. That there apparently were firearms involved, if not directly, at least collaterally; that this offense would appear to be part of a repetitive pattern of conduct on the part of the defendant. In fact as I see from the record here, this charge was alleged to have occurred while the defendant was charged with another Class B felony, the one to which he had pled last Thursday. And that repetitive pattern then would demonstrate that this individual may be beyond, or is in fact beyond the current rehabilitation available in this state.
That, coupled with the history of the defendant, his traits and maturity, all of which bear upon his prospects for rehabilitation, the Court finds that there is clear and convincing evidence to transfer this matter to Circuit Court. The bond will remain the same.

Appellant’s sole argument on appeal is that the trial court’s finding, by clear and convincing evidence, that appellant should be tried as an adult was clearly erroneous and against the preponderance of the evidence.

We have repeatedly stated that if a trial court determines a juvenile should be tried in circuit court as an adult, its decision must be supported by clear and convincing evidence. Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993). Clear and convincing evidence is “that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.” Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). We will not reverse the trial court’s decision on transfer unless we determine the decision was clearly erroneous. Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991).

Arkansas Code Annotated § 9-27-318 (Repl. 1993) provides that in deciding whether to transfer the case or to retain jurisdiction, the court in which the criminal charges have been filed shall consider the following factors:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
(f) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.

In making its decision, the lower court is not required to give weight to each of the statutory factors, Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994), and proof need not be introduced by the prosecutor against the juvenile on each factor. Walker at 400.

The evidence adduced at appellant’s transfer hearing was as follows. Appellant’s probation officer, Robert Evans, recounted that appellant had been in and out of court on numerous occasions. In April, 1992, appellant was charged with third-degree battery; that case was dismissed with the appellant consenting to pay costs. Appellant’s first conviction was in September, 1993, for failure to appear and for obstructing governmental operations; appellant agreed, once again, to pay costs and received probation and a suspended sentence. Appellant’s record also contained a probation violation for failing to report and for leaving the county. At the time of his arrest, appellant had been charged with another burglary which had been transferred from circuit court to juvenile court, and was out on bond for that offense.

Mr. Evans testified that as a probationer, appellant was not at all cooperative and reported in only sporadically and his parents also failed to insure that he reported in as required. Further, counseling was available to appellant, but he had not availed himself of this service. Appellant had not been to the training school, but Mr. Evans opined that, considering appellant’s degree of noncooperation, neither counseling nor the training school would do him any good.

Appellant argues that there is countervailing evidence to the appellant’s alleged failure to cooperate while on probation. Appellant’s mother testified that at times he did not have transportation to make the ten-mile trip to the probation office, his younger sister had frequent surgery and dealing with her medical problems was a family priority, and there had been a death in the family which necessitated a trip out of state. Appellant also argues that the only attempt at rehabilitation was to place him on probation, he had only one felony adjudication, he had no weapon when arrested and there was no evidence that violence was involved in the offense with which he was charged. He further contends his family situation contributed to his lack of maturity; his mother testified that appellant had not completed the eighth grade and that he had failed either the seventh or eighth grade twice.

We considered similar facts and arguments in Sebastian, supra; we said that where there was evidence that the current felony charges were part of a repetitive pattern of offenses and where past efforts at rehabilitation in the juvenile court system have not been successful, these factors alone prevented us from holding the trial court’s ruling on the transfer motion was clearly erroneous, even though no violence was used in the commission of the offense. Also, in Walter v. State, 317 Ark. 274, 878 S.W.2d 374 (1994), we determined that even though appellant was not accused of personally using a weapon in crimes that involved a pistol and gunfire, his association with the gunman in committing the alleged robberies and thefts was enough to satisfy the violence criterion.

Here, the trial court, in considering the factors outlined in § 9-27-318, found that appellant was charged with a serious offense, a class B felony, that there were firearms involved at least collaterally, that the offense appeared to be part of a repetitive pattern of conduct which would demonstrate that appellant was beyond the current rehabilitation available, and that appellant’s history, traits and maturity also reflected adversely upon his prospects for rehabilitation. We cannot say the trial court was clearly erroneous in finding that there was clear and convincing evidence presented at the hearing to support transfer of this case to circuit court.

Affirmed.


text:
    Ricky Louis HARRIS v. STATE of Arkansas
    CR 95-413
    907 S.W.2d 729
    Supreme Court of Arkansas
    Opinion delivered October 16, 1995

      John Joplin, for appellant.

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

Appellant Ricky Louis Harris was convicted and sentenced to sixty years imprisonment for attempted rape. He asserts the trial court erred by: 1) allowing his prior conviction for sexual assault to be used for impeachment, 2) excluding relevant exculpatory evidence of the victim’s prior sexual conduct, 3) not allowing him to waive the habitual offender bifurcated trial procedure, 4) limiting his closing argument, and 5) admitting evidence without proper chain of custody. We find all five points to be without merit, and affirm.

On the night of February 25, 1994, appellant met the victim, who had just arrived from Texas, at a Fort Smith bar. The bartender was to be her host on the visit, and she remained at the bar, drinking and playing pool with appellant and others, until closing time. The victim and appellant both had a substantial amount to drink during the evening; the victim felt she was unable to drive, gave her keys to her bartender friend, and accepted appellant’s offer of a ride to the home of her host. Instead of following the victim’s friend to his home, appellant drove to his parent’s home, where he lived, and parked his jeep in their driveway. The victim testified that she repeatedly asked appellant to take her to her friend’s home but he refused. She stated that while they were parked in the driveway, appellant began to attack her, forced her down on the car seat, ripped her shirt, pulled her brassiere up around her neck, ripped her pants, put his hand down her throat, threatened to get out a knife if she continued to resist, bit her breast and penetrated her vagina with his hand. During the struggle, which continued “for the longest time” according to the victim, she screamed for help and was able to repeatedly sound the horn of the jeep.

At trial, four witnesses testified to hearing a young woman scream for help and the sound of a car horn. Two young men went to investigate the disturbance, saw that the screams were coming from appellant’s jeep, and witnessed the jeep moving back and forth as if “somebody was being raped or being beat up in the car.” They and another neighborhood resident summoned the police by calling 911. The first officer to arrive on the scene saw appellant leave the jeep and walk toward his house; the officer also saw the victim tumble out of the passenger side with her clothes tom and in disarray and her jeans and underpants down around her thighs. He testified that she was hysterical and screaming “help me.” Appellant was arrested at the scene, and the victim was taken to the hospital. Appellant testified at a pretrial hearing that he and the victim engaged in consensual “making out and petting” earlier that evening and while they were parked in his parent’s driveway but he denied all allegations of the victim. He did not testify or put on any evidence at trial.

1. Prior conviction.

Appellant argues the trial court erred in denying his motion in limine to prohibit a 1985 sexual assault conviction from being used for impeachment. His motion was overruled and the defendant elected not to testify at trial.

In Smith v. State, 300 Ark. 330, 778 S.W.2d 947 (1989), we reiterated the rule that:

In future cases, to preserve this issue for review, a defendant must at least, by a statement of his attorney: (1) establish on the record that he will in fact take the stand and testify if his challenged prior convictions are excluded; and (2) sufficiently outline the nature of his testimony so that the trial court, and the reviewing court, can do the necessary balancing contemplated in Rule 609.

We further in Smith chose to adopt the doctrine promulgated in Luce v. United States, 469 U.S. 38 (1984), which states that in order to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.

The Arkansas Rules of Evidence Rule 609 states in pertinent part:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.

A.R.E. Rule 609(a).

To accomplish the weighing of the prior conviction’s probative value against its prejudicial effect, the reviewing court must know the precise nature of the defendant’s testimony, which is unknowable when the defendant does not testify. Smith at 336. Smith goes further to state:

Any possible harm flowing from a trial court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. Moreover, when the defendant does not testify, the reviewing court has no way of knowing whether the State would have sought so to impeach, and cannot assume that the trial court’s adverse ruling motivated the defendant’s decision not to testify. Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. If in limine rulings under Rule 609(a) were reviewable, almost any error would result in an automatic reversal, since the reviewing court could not logically term “harmless” an error that presumptively kept the defendant from testifying. Requiring a defendant to testify in order to preserve Rule 609(a) claims enables the reviewing court to determine the impact any erroneous impeachment may have in light of the record as a whole, and tends to discourage making motions to exclude impeachment evidence solely to ‘plant’ reversible error in the event of conviction. (Citation omitted).

Appellant argues that his proffered testimony at the pretrial hearing sufficed to let the trial court know the precise nature of his testimony. Although the proffered testimony may be sufficient to allow for the necessary balancing contemplated in Rule 609, the defendant did not testify, and we have no way of knowing whether the State would have sought so to impeach, and cannot assume that the trial court’s adverse ruling motivated the appellant’s decision not to testify. Consequently, appellant has not preserved this issue for review because of his failure to testify at trial.

2. Victim’s prior sexual conduct.

During an in-camera hearing prior to trial, appellant’s counsel sought to “proffer” that the physician who examined the victim would testify that the victim reported she had sex within a week prior to the incident, and the prior sexual encounter could have caused the bruising and abrasion noted by the doctor during his exam. Appellant’s counsel admitted he had not talked to the doctor and did not actually know what his testimony would be. The trial court ruled that appellant could ask the doctor if the bruises on the victim’s legs were old, but could not mention the prior sexual conduct.

At trial, appellant’s cross-examination concerning the bruises was as follows:

Q: Now, the history as you mentioned, the history that she gave you with these various bruises, that could be consistent with a lot of things, could it not?
A: The bruising and such?
Q: Yes.
A: Yes, sir.
Q: It could be consistent with a fall or it could be consistent with just a number of other things, couldn’t it?
A: Some of them could.

Appellant did not ask the physician if the bruises were old or if they could have been produced prior to the rape. In fact, the doctor testified during direct examination that all the bruising he noted was fresh, or within twenty-four to forty-eight hours old.

The Rape Shield Statute, Ark. Code Ann. § 16-42-101 (Repl. 1993), states in pertinent part:

(b) In any criminal prosecution under § 5-14-103 through § 5-14-110, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
(c) Notwithstanding the prohibition contained in subsection (b) of this section, evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim’s prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of the evidence is determined in the following manner:

(Emphasis added)

Ark. Code Ann. § 16-42-101(b) & (c).

The statute does not totally bar evidence of a victim’s sexual conduct but instead makes its admissibility discretionary with the trial judge. The trial court is vested with a great deal of discretion in ruling whether prior sexual conduct of a prosecuting witness is relevant, and we do not overturn the trial court’s decision unless it constituted clear error or a manifest abuse of discretion. Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).

In evaluating the admissibility of such evidence under the statute, the trial court determines whether the probative value of the evidence outweighs its inflammatory or prejudicial nature. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994). We have held that our Rape Shield Statute is intended to protect victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt. Gaines at 567.

In Lackey v. State, 288 Ark. 225, 703 S.W.2d 858 (1986), the trial court denied appellant’s motion to question the victim about her prior sexual conduct. Appellant argued it was relevant because of the doctor’s statement that the sperm he found was non-motile and that sperm could remain motile up to five days in the vagina. We determined it was within the discretion of the trial court to determine the relevancy of the question and balance it against the possibly prejudicial effect.

In Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995), the appellant was allowed to bolster his claim of consent by showing that the victim had a black eye before the rape occurred. However, we upheld the trial court’s exclusion of testimony that the victim’s husband had struck her because she was having an affair with someone else; the trial court found this testimony was only minimally relevant, and its prejudicial effect substantially outweighed its probative value.

In the instant case, we cannot say the trial court abused its discretion in allowing the appellant to ask how old the bruises were without reference to the victim’s prior sexual conduct.

3. Waiver of bifurcated trial.

Harris argues that the bifurcated procedure deprived him of a fair trial in violation of the Fourteenth Amendment, because the jury was required to decide his guilt without knowledge of the consequences to him of a conviction and without regard to the punishment which would result.

Appellant presents no authority for his due process argument, and our bifurcated sentencing procedure has been upheld for habitual criminals. Griffin v. State, 307 Ark. 537, 823 S.W.2d 446 (1992); Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984).

4. Limitation of closing argument.

The trial court granted the State’s motion to prevent appellant from bringing up certain matters in closing arguments, including reference to a chain of custody issue and the victim’s character. Appellant objected to this limitation. However, as appellant has failed to abstract any of his closing argument, we cannot determine whether or how he was prejudiced; this failure precludes us from considering this issue. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994).

5. Chain of custody.

Appellant asserts that items of the clothing worn by the victim during the attempted rape were introduced without a proper chain of custody. He primarily argues that a pair of jeans could have been torn by doctors or nurses who examined the victim after the incident or could have been tampered with, and alleges the jeans did not appear to be the same pair he witnessed at a preliminary hearing. However, the victim testified that appellant tore her jeans during the attack, identified the clothing as hers and testified the items were in the same condition as when they were removed from her at the hospital immediately after the incident. A police officer also testified that he took the clothing from the victim at the hospital and that the condition of the clothes admitted into evidence was the same as the night that he received them. Although there was conflicting testimony from officers concerning whether the clothing had been sent to the state crime lab for testing, minor uncertainties in the proof of chain of custody are matters to be weighed by the jury and do not render evidence inadmissible as a matter of law. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court and rulings in this regard will not be reversed absent an abuse of discretion. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). We have consistently agreed that the purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993). However, the trial court must be satisfied that, in reasonable probability the evidence has not been tampered with; it is not necessary that the State eliminate every possibility of tampering. Gardner v. State, supra; White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

The trial court found the items of clothing to be admissible; we cannot say there was abuse of discretion in this instance.

The conviction is affirmed.


author: Per Curiam.

text:
    Todd TAYLOR v. STATE of Arkansas
    CR 95-1006
    907 S.W.2d 139
    Supreme Court of Arkansas
    Opinion delivered October 16, 1995

      Henry C. Morris, for appellant.
    No response.
   Per Curiam.

Petitioner, Todd Taylor, by his attorney, Henry C. Morris, has filed a motion for rule on the clerk. His attorney admits that he prematurely filed the notice of appeal in this cause and the mistake was on his part. Under our rules the notice of appeal was of no effect. Ark. R. App. P. 4.

We will treat petitioner’s motion as one for a belated appeal which we grant upon counsel’s admission of error. We direct that a copy of this opinion be forwarded to the Committee on Professional Conduct. Woods v. State, 316 Ark. 705, 873 S.W.2d 563 (1994).


author: Bradley D. Jesson, Chief Justice.

text:
    John Michael BRAY v. STATE of Arkansas
    CR 95-436
    908 S.W.2d 88
    Supreme Court of Arkansas
    Opinion delivered October 23, 1995

      Robert W. Bush, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Bradley D. Jesson, Chief Justice.

The appellant, John Michael Bray, was convicted of rape, kidnapping, and theft of property in Faulkner County Circuit Court, and was sentenced as a habitual offender to a cumulative term of 140 years’ imprisonment. His sole point on appeal is that the trial court erred in admitting testimony during the sentencing phase of the trial regarding his prior conviction for attempted escape, when the State did not timely disclose the conviction. We affirm.

The day prior to Bray’s December 14, 1994, jury trial, his counsel received discovery from the State regarding an attempted escape by Bray while he was incarcerated on the present charges in Independence County. Included in the discovery were forty-five pages of statements that Bray had given to police regarding the escape attempt. In addition, the name of Investigator Jeff Everetts of the Independence County Sheriff’s Office was added to the witness list. Bray filed a written motion to suppress this information, complaining that the State had violated discovery rules. At a hearing on the motion prior to opening statements, the trial court observed that, while the State had violated discovery rules, Bray could not claim surprise. The. trial court reserved ruling on the motion.

The State did not use any of the information regarding the attempted escape during the guilt phase of the trial. The jury returned verdicts of guilty on all three charges. During the sentencing phase on December 15, the State introduced evidence of Bray’s prior felony convictions for perjury, possession of drug paraphernalia, and theft of property. Over Bray’s objection, the State also introduced evidence of Bray’s prior conviction for attempted escape in Independence County, as well as the testimony of Everetts. At the close of all the evidence, the trial court instructed the jury regarding the statutory range of punishment for a person convicted of more than one, but fewer than four felonies. Following deliberations, the jury recommended that Bray be sentenced to 60 years for rape, 60 years for kidnapping, and 20 years for theft of property. The trial court entered judgment against Bray accordingly and ordered that the sentences be served consecutively.

An accused is entitled to know, prior to trial, the range of possible punishment he faces. Malone v. State, 292 Ark. 243, 729 S.W.2d 167 (1987). Stated another way, under Ark. R. Crim. P. 17, an accused must be informed before trial of the number of previous convictions the State will attempt to introduce. Id. The information requested must be furnished in time to permit the beneficial use of it by the defense. Id. However, the key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose. Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993). See also Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994); Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994); Robinson v. State, 317 Ark. 407, 878 S.W.2d 405 (1994). If the State does not provide information pursuant to pretrial discovery procedures, the burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Burton v. State, supra; Davis v. State, supra.

In reviewing the record before us, it is clear that Bray has not demonstrated that he was prejudiced by the admission of the evidence regarding his conviction for attempted escape. We think it significant that counsel for Bray concurred with the trial court’s observations prior to opening statements that his client could not claim surprise:

THE COURT: Oh, it is late, but let me ask you this: How can the defendant claim surprise? He knew whether he did or didn’t escape, and he knew whether or not he made a statement to police, didn’t he?
COUNSEL FOR BRAY: I would assume he did.

In addition to counsel for Bray’s concession that his client could not claim that he was surprised by the evidence of the attempted escape, Bray suffered no prejudice by the admission of this evidence because he was not subjected to a harsher range of punishment for persons convicted of four or more felonies.

During the sentencing phase, the State introduced evidence that Bray had four prior felony convictions: perjury, possession of drug paraphernalia, theft of property, and attempted escape. However, when the trial judge read the instructions to the jury, he informed them of the range of punishment for persons previously convicted of more than one, but fewer than four felonies, telling the jury that Bray had “at least two previous felony convictions.” For Bray’s convictions of rape and kidnapping, Class Y felonies, he instructed the jury that Bray could be sentenced to a term not less than ten years nor more than sixty years, or life. See Ark. Code Ann. § 5-4-501(a)(l) (Repl. 1993). For Bray’s conviction for theft of property, he told the jury that Bray could be sentenced to a term of not less than three years nor more than twenty years. § 5-4-501(a)(4). While the trial judge, at the State’s request, corrected the written instructions to reflect that Bray had “four” rather than “at least two” previous felony convictions, the range of punishment remained unchanged. For convictions of rape and kidnapping, Class Y felonies, Bray, who had four prior felony convictions, could have been sentenced to a term not less than ten years nor more than life. § 5-4-501 (b)(1). For his conviction for theft of property, Bray could have been sentenced to a term of not less than three years nor more than thirty years. § 5-4-501 (b)(4). (Emphasis added.) However, the jury was not instructed with regard to the increased range of punishment for a person with four or more previous felony convictions, and he was not sentenced pursuant to this increased range. Pursuant to the jury’s recommendations, the trial judge sentenced Bray to 60 years for rape, 60 years for kidnapping, and 20 years for theft of property. Under these circumstances, Bray has not shown that he was prejudiced by the admission of evidence concerning his attempted escape conviction.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Jackie BERRY, as Administrator of the Estate of Toni Berry, Deceased v. SALINE MEMORIAL HOSPITAL; and Terry Whittington, Administrator of Saline Memorial Hospital
    95-144
    907 S.W.2d 736
    Supreme Court of Arkansas
    Opinion delivered October 23, 1995
    [Petition for rehearing denied November 20, 1995.]

      Boswell, Tucker & Brewster, by: Ted Boswell, Clark S. Brewster, and John T. Holleman, for appellant.
    No response.
   Robert H. Dudley, Justice.

This is an appeal from an order disqualifying a law firm from participating in a case. We affirm the disqualification order. The facts viewed in the light most favorable to appellee are as follows. Clark Brewster, a member of the law firm of Boswell, Tucker & Brewster, was a member of the Board of Governors of the Saline Memorial Hospital from July 1, 1989, to June 30, 1992. During this period, Brewster, as a member of the board, was privy to confidential and privileged information about the hospital’s quality assurance activities and the peer reviews conducted by the medical staff. He additionally served as Chairman of the Joint Conference Committee, a committee composed of three members of the board and three members of the medical staff. This committee relayed concerns of the medical staff to the board about the quality assurance programs. This information was not known to the public and was disclosed to Brewster because of his fiduciary relationship to the hospital. He was not employed as the hospital’s attorney, but he was asked questions by board members because of his profession.

On July 25, 1992, or twenty-five days after the attorney’s term on the board ended, Toni Berry underwent emergency surgery at the Saline Memorial Hospital and, lamentably, died the next afternoon. Shortly after her death, her widower, Jackie Berry, employed Ted Boswell, senior partner in the firm of Boswell, Tucker & Brewster, to investigate a possible negligence action against the hospital. Ten months later the Boswell law firm filed a negligence action on behalf of Toni Berry’s estate against St. Paul Fire & Marine Insurance Company, the insurer of Saline Memorial Hospital, which is a county-owned hospital. See Ark. Code Ann. § 23-79-210 (Repl. 1992). The gravamen of the complaint was that the hospital and certain of its employees committed medical malpractice. See Saline Memorial Hosp. v. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995).

On November 15, 1994, the Boswell firm requested numerous records from the hospital under the Arkansas Freedom of Information Act, Ark. Code Ann. §§ 25-19-101 to -107 (Repl. 1992 & Supp. 1995). The FOIA at times provides greater disclosure than do the discovery procedures afforded by the Arkansas Rules of Civil Procedure. Baxter County Newspapers v. Baxter Gen. Hosp. Staff, 273 Ark. 511, 622 S.W.2d 495 (1981). Among the many requested records were “records used by the nursing or hospital administration to determine patient acuity levels”; “records of the employee-to-patient ratio reports from 1991, 1992, and 1993”; and “records of the employee-per-occupied-bed reports for 1990, 1991, 1992, and 1993.” The hospital complied with most of the requests, but refused to release statements taken from witnesses as part of a quality assurance or peer review proceeding. In its response to the Boswell firm’s request, the hospital replied that the quality assurance and peer review records:

are specifically excluded from disclosure and are absolutely privileged communications pursuant to Arkansas statutes. These would be the only such records in the hospital’s possession. Those made and kept by St. Paul or this [law] firm [Friday, Eldredge & Clark] and are not public records.

The Estate of Toni Berry then filed this separate suit under the FOIA and, among other things, requested the circuit court to order the hospital to disclose all records denied “on any alleged quality assurance privilege. . . .”

The Hospital filed a motion seeking to disqualify the Boswell firm from representing the estate in this FOIA suit on the following basis:

The confidential information gathered by Clark Brewster while serving on the hospital’s Board and the decisions related to the operation of the hospital are directly at issue in the present lawsuit. The representation of the Plaintiff in an action directly adverse to the interests of the hospital is improper, presents an unavoidable conflict of interest and gives the appearance of impropriety that undermines the public’s perception of the legal profession and defeats the public policy principles against such actions.
[He] was in a fiduciary relationship with Saline Memorial Hospital and continues to owe a duty of loyalty which will be breached if allowed to represent interests adverse to those of the hospital.

The trial court ruled that the Boswell law firm was disqualified because:

[Clark Brewster’s] membership on the board of Governors of Saline Memorial Hospital, at the time Quality Assurance and Peer Review policies and procedures were approved and adopted by the board, is a matter related to the issues in the pending FOIA action. Mr. Brewster’s law firm represents interests directly adverse to the hospital which will necessarily involve issues related to the very policies and procedures which Mr. Brewster approved and implemented as a member of the Board.

The Boswell firm appeals from the ruling.

Appellant first contends the trial court erred in disqualifying the law firm because the firm was not in an attorney-client relationship with the hospital. We could summarily dispose of the argument by stating that the trial court did not rule that an attorney-client relationship existed. Even so, we answer in more detail. The trial court ruled that a conflict of interest existed between the attorney and the hospital, and that ruling was correct. Rule 1.7(b) of The Model Rules of Professional Conduct provides that a lawyer “shall not represent a client if the representation of that client may be materially limited by the lawyers’s responsibility to another client or to a third person,” unless the client or the third person consents. Model Rule 1.10 states that, while lawyers are associated in a firm, “none of them shall knowingly represent a client when any of them practicing alone would be prohibited from doing so by Rule 1.7.” The Comment to Rule 1.7 discusses several possible conflicting relationships such as the business interests of the lawyer and membership on a board of directors.

A member of a hospital’s board of directors holds a fiduciary relationship with the hospital. Warren v. Wheatley, 231 Ark. 707, 331 S.W.2d 843 (I960). One who is in such a relationship may not assume a position in which his personal interest might conflict with his fiduciary duty as a member of the board. Id. at 712-13, 331 S.W.2d at 847. When a lawyer is on the board of a hospital, the lawyer owes a fiduciary duty to the hospital, and the lawyer should not take any action that conflicts with that duty, such as filing a suit against the hospital. After the lawyer’s term on the board ends, the lawyer should not take any action to the detriment of the hospital when that action is based upon confidential information the attorney gained during the fiduciary relationship.

The holding in this case must be read in context of this case only. The Model Rules of Professional Conduct are not really designed for disqualification trials; rather, they are designed for regulating conduct through the Committee on Professional Responsibility. The rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the Committee on Professional Conduct, does not imply that an antagonist in a collateral proceeding even has standing to seek enforcement of a rule. See The Preamble to the Model Rules of Professional Conduct. In addition, in this case the trial court’s ruling on disqualification does not conflict with the Arkansas Freedom of Information Act. We can envision situations where a disqualification ruling might present a conflict with the FOIA, and a weighing of those conflicts then would be required.

Appellant next argues that any materials reviewed by Brewster, and all actions taken by him as a member of the board, were subject to public scrutiny under the FOIA; therefore, there was no breach of confidentiality. The argument is one that is based upon Mr. Brewster’s recollection of the facts. It fails because we must view the facts, and all reasonable inferences from them, in the light most favorable to appellee. We do not reweigh the evidence, we only determine whether the trial court’s finding was clearly against the preponderance of the evidence. Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993). In such a review it is permissible to consider only testimony that supports the finding. Griffin v. Woodall, 319 Ark. 383, 892 S.W.2d 451 (1995).

Contrary to Mr. Brewster’s recollection, there was proof from another member of the board, Max Blake, that information was supplied to Mr. Brewster during his tenure on the board that related to quality assurance and peer review and this information was not public information. Moreover, one of the hospital’s responses to the FOIA request, which prompted this FOIA suit, was that “statements taken from witnesses as part of a Quality Assurance or Peer Review proceeding are specifically excluded from disclosure and are absolutely privileged communications pursuant to Arkansas statues.” Appellant does not deny that he seeks records related to quality assurance and peer review. Indeed, one of the issues to be decided by the circuit court when the merits of this FOIA case are reached is whether peer review and quality assurance records are excluded from the FOIA. We observe, without deciding the issue and without indicating how the circuit court should rule when it reaches the merits, that this is a valid issue. The FOIA provides that all records of county hospitals are to be open to the public “except as otherwise specifically provided by this section or by law. . . .” Ark. Code Ann. § 25-19-105(a) (Supp. 1995). One of the exceptions provided “by this section” is for “medical records.” Ark. Code Ann. § 25-19-105(b)(2). Another statute, Ark. Code Ann. § 16-46-105 (Repl. 1994), provides that peer review and quality assurance records “shall not be subject to discovery or admissible in any legal proceeding and shall be absolutely privileged communications.” Id. § 16-46-105(a). See also Baxter County Newspapers, 273 Ark. at 513, 622 S.W.2d at 496.

Regardless of the ultimate ruling on the merits of the issue, the only ruling made by the trial court that is now on appeal is that:

[Brewster’s] membership on the Board ... at the time Quality Assurance and Peer Review policies and procedures were approved and adopted by the board is a matter related to the issues in the pending FOIA action. Mr. Brewster’s law firm represents interests directly adverse to the hospital which will necessarily involve issues related to the very policies and procedures which Mr. Brewster approved and implemented as a member of the board.

The ruling was not clearly erroneous.

Appellant’s final assignment is that the trial court erred because there was no appearance of impropriety or olfactory offense sufficient to warrant disqualification of counsel. The argument is without merit. Some of the Model Rules of Professional Conduct are imperatives, cast in the terms “shall” or “shall not.” These rules define proper conduct for purposes of professional discipline. Others, generally cast in the term “may,” are permissive and define areas under the rules in which the lawyer has professional discretion. See “Scope” of Model Rules of Professional Conduct. However, Rule 1.7, the primary rule at issue in this case, is cast in imperative terms. It provides that a lawyer “shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibility to ... a third person.” (Emphasis added.) A member of the law firm held a fiduciary relationship with the hospital, and the trial court ruled that there was a substantial relationship between the lawyer’s responsibilities as a result of the fiduciary relationship and the information sought in the FOIA petition. Since the Model Rule is cast in imperative terms, the trial court did not abuse its discretion in finding a conflict of interest and disqualifying the law firm retained by appellant.

As a sub-point, appellant asks us to reconsider our position on the “appearance of impropriety” standard, as we are only one of three states retaining that standard. See David Ivers, Note, Prohibition Against Appearance of Impropriety Retained Under Model Rules of Professional Conduct, 13 U. Ark. Little Rock L.J. 271 (1991). We have recently used the standard in another disqualification case, see Saline Memorial Hosp. v. Jackie L. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995), and we continue to think that it is appropriate in disqualification cases.

Affirmed.


text:
    Bill CULLUM and Darnell Cullum, on Behalf of Themselves and All Others Similarly Situated v. SEAGULL MID-SOUTH, INC. F/K/A Arkla Exploration Company, and Arkla, Inc.
    94-1448
    907 S.W.2d 741
    Supreme Court of Arkansas
    Opinion delivered October 23, 1995

      Belew & Bell, by: John M. Belew and Bell & Associates, by: Harvey L. Bell, for appellants.

      Jones, Day, Reavis & Pogue, by: Joseph L. McEntee, James A. White, and David J. Chorzempa; Blair & Stroud, by: H. David Blair; and Wright, Lindsey & Jennings, by: N. M. Norton, Jr., for appellees.
   Robert L. Brown, Justice.

This is an appeal by class representatives, Bill Cullum and Darnell Cullum, on behalf of a class of Arkla, Inc. ratepayers. They appeal from an order dismissing their civil law causes of action for lack of subject matter jurisdiction. In doing so, they urge various errors but primarily contend that the circuit court had jurisdiction of the tort actions and of their petition for declaratory relief. We disagree and hold that this litigation constituted an impermissible collateral attack on Arkla rates filed with and approved by the Arkansas Public Service Commission.

The events giving rise to this litigation began in 1982. In that year, appellant Arkla entered into a “Take or Pay Contract” with Jerral Jones and Mike McCoy, the principals of Arkoma Production Company. That contract conveyed drilling rights to Arkoma in certain fields owned by Arkla and provided that Arkla would either buy the natural gas produced at a designated contract price, or not buy the natural gas and pay Arkoma 75% of that contract price. Arkla was foreclosed from renegotiating the price in the contract. The market price of natural gas soon fell. The result was that Arkla was locked into buying natural gas at excessively high prices under the Arkoma contracts which, according to the complaint, threatened its fiscal integrity by 1986. In late 1986, an Arkla subsidiary, Arkla Exploration Company, purchased all the outstanding stock of Arkoma and paid Jones and McCoy $14 million. Arkla and Arkla Exploration Company also assumed the Arkoma debt of $35 million owed to Jones and McCoy. Arkla Energy Resources, a division of Arkla, further agreed to purchase natural gas from Jones and McCoy, and Arkla gave them a promissory note in excess of $24 million to secure payment for that natural gas.

The Arkla/Arkoma transaction has been the subject of two reviews by the Public Service Commission. In 1983, the PSC examined the contract, and on July 30, 1984, it issued a report, finding that the Arkla/Arkoma arrangement was a legitimate business transaction which would not adversely affect Arkla rates. In 1989-90, the Arkoma contract and Arkla buy-out were investigated by the PSC pursuant to a complaint by ratepayers that Arkla had defrauded the PSC with the Arkoma transactions and breached its fiduciary duty to its ratepayers by charging rates that were illegally high. The resulting proceedings involved participation by the State Attorney General, Arkla representatives, and the PSC staff. Various ratepayers represented by attorney Thomas Mars (“Mars ratepayers”) intervened. The Cullums also tried to intervene on behalf of Arkla ratepayers and asserted that Arkla had defrauded the PSC, but the PSC found that the interest of the Cullum ratepayers was adequately represented. After discovery and a hearing, the PSC ordered relief to Arkla ratepayers in excess of $13 million.

The Cullums did not appeal their denial of intervention by the PSC. Instead, they filed an action in federal district court in which they made claims under the U.S. Constitution and Racketeer Influenced and Corrupt Organizations Act (RICO) and raised additional state tort claims for fraud. The federal district court invoked the filed rate doctrine, dismissed the constitutional and RICO claims with prejudice, and dismissed the state tort claims without prejudice. The Eighth Circuit Court of Appeals affirmed. Cullum v. Arkla, Inc., 797 F. Supp. 725 (E.D. Ark. 1992), aff’d, 994 F.2d 842 (8th Cir. 1993).

On August 6, 1993, the Cullums filed the present lawsuit in Independence County Circuit Court as a class action against Arkla, Arkoma, and Seagull Mid-South, Inc., formerly known as Arkla Exploration Company. They alleged fraud on the part of Arkla, Arkoma, and Arkla Exploration Company as well as a conspiracy to commit fraud. They asserted that Arkla failed to disclose that $180 million was being paid to the Arkoma principals as the true cost of the buy-out. In addition, they alleged that Arkla ratepayers were forced to pay inflated rates due to natural gas prices which were artificially doubled in order to generate capital to fund the Arkla buy-out of the Arkoma contract. Finally, they asserted that secret accounts and bookkeeping devices were employed to hide Arkla’s fraudulent scheme and that 5.5 billion cubic feet of natural gas was given to Arkoma as part of the buy-out.

Arkla and the other defendants moved to dismiss the complaint on the theory that it amounted to a collateral attack on Arkla’s rates. They urged dismissal for lack of subject matter jurisdiction and pursuant to the doctrine of res judicata because of previous PSC action. On July 5, 1994, the trial judge wrote the parties questioning whether the circuit court had jurisdiction over a common law action of fraud mounted against a public utility. The judge then asked for briefs on the appropriate measure of damages at issue in the litigation and stated that his analysis of whether this was a rate case or fraud action would turn on the question of the measure of damages. On August 10, 1994, the trial judge issued his letter opinion and found that the circuit court lacked subject matter jurisdiction over the action and also that the action was barred by the doctrine of res judicata. The trial judge further found that the Cullums’ complaint did not allege the necessary elements to sustain the tort claims against Arkla Exploration Company and Arkoma. An order followed, dismissing the cause of action under Rules 12(b)(1) and 12(b)(6) of the Arkansas Rules of Civil Procedure.

The Cullums assert error by the trial judge in his jurisdictional ruling and implore this court to focus on common law civil redress in tort and not the rate-making authority of the PSC. We begin by underscoring that the PSC is a creature of the legislature, and its duties are legislative. Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 267 Ark. 550, 593 S.W.2d 434 (1980). It is not a judicial body. Southwestern Elec. Power Co. v. Coxsey, 257 Ark. 534, 518 S.W.2d 485 (1975). We have held that the judiciary must defer to the expertise of the PSC in rate matters. City of Fort Smith v. Arkansas Pub. Serv. Comm’n, 278 Ark. 521, 648 S.W.2d 40 (1983).

The General Assembly has vested the PSC with the sole and exclusive jurisdiction and authority to determine rates to be charged by public utilities. Ark. Code Ann. § 23-4-201(a)(l) (1987). It is further clear that this jurisdiction extends over rate matters and disputes involving public rights between consumers and public utilities but not to private rights found in tort. Ark. Code Ann. § 23-3-119(a), (d), (f)(1) and (2) (1987); see Ozarks Elec. Coop. Corp. v. Harrelson, 301 Ark. 123, 782 S.W.2d 570 (1990). Hence, to the extent that this matter involves a dispute over rates charged by Arkla, its resolution falls within the purview and jurisdiction of the PSC.

The Cullums contend that their cause of action concerns a private right of action in tort against the appellees. They point to several cases from this court to support their position. Ozarks Elec. Coop. Corp. v. Turner, 277 Ark. 209, 640 S.W.2d 438 (1982); Southwestern Elec. Power Co. v. Coxsey, supra; City of El Dorado v. Arkansas Pub. Serv. Comm’n, 235 Ark. 812, 362 S.W.2d 680 (1962); Associated Mechanical Contractors of Arkansas v. Arkansas Louisiana Gas Co., 225 Ark. 424, 283 S.W.2d 123 (1955); Southwestern Gas & Elec. Co. v. City of Hatfield, 219 Ark. 515, 243 S.W.2d 378 (1951). Upon review, we are convinced that these cases are easily distinguishable and do not resolve the issue at hand in favor of the Cullums.

The Cullums are correct that the cost of developing and producing oil and gas must be borne by the shareholders of a public utility and not by the ratepayers. Act 175 of 1957, now codified at Ark. Code Ann. § 23-15-104 (1987); City of El Dorado v. Arkansas Pub. Serv. Comm’n, supra. Indeed, none of the expenses associated with a private business owned by a public utility can be passed on to the ratepayers. City of El Dorado v. Arkansas Pub. Serv. Comm’n, supra; Associated Mechanical Contractors of Arkansas v. Arkansas Louisiana Gas Co., supra. The Cullums maintain that the City of El Dorado case as well as other cases cited stand for the principle that any costs associated with natural gas exploration are outside of the ratemaking process and, thus, beyond the exclusive authority of the PSC. They further contend that the General Assembly and this court have separated the PSC’s legislative function of ratemaking from the judicial functions of the courts. See Southwestern Elec. Power Co. v. Coxsey, supra; Southwestern Gas & Elec. Co. v. City of Hatfield, supra. Finally, they point to the case of Ozarks Elec. Coop. Corp. v. Turner, supra, as precedent for the circuit court’s jurisdiction over a case involving excessive charges assessed by a utility against a ratepayer.

The Ozarks Elec. Coop. Corp. v. Turner case is factually different from the case at hand. There, the issue concerned a claim by Ozarks Electric that Turner had tampered with its electric meter and owed the utility $1,500. Turner paid the amount but sued the utility to recover it. The jury awarded Turner $1,250, and Ozarks Electric appealed on the basis that this dispute was solely within the jurisdiction of the PSC. In our decision, we made it clear that this was not a case which questioned the rate paid by Turner. The dispute, rather, was over the assertion that Turner had tampered with the meter, and the issue to be resolved was why, if this was not the case, Turner’s individual meter reading was so low. The cause of action was not brought on behalf of a class or group of utility customers. We held that this was a matter appropriately resolved in circuit court.

The case of Southwestern Elec. Power Co. v. Coxsey, supra, is also not on point. In Coxsey, the issue was whether the PSC had exclusive jurisdiction over a declaratory judgment petition filed by one utility (Carroll Electric) against another utility (Swepco) to determine whether Swepco was servicing an area that fell within the certificate of convenience and necessity which the PSC had issued to Carroll Electric. We noted that the judicial decision hinged on the interpretation of the service area in the franchises issued and established by the PSC. Because Carroll Electric, as the certificate holder, simply sought to have the PSC’s order enforced in court, we held that it had a judicial remedy.

The question before us is whether the tort action brought by the Cullums impermissibly encroaches on the exclusive authority of the PSC to fix rates. We believe that it does. We further agree with the trial judge that the filed rate doctrine resolves the jurisdictional question. The Eighth Circuit Court of Appeals defined the doctrine and explained the purpose behind it in 1992:

The filed rate doctrine “forbids a regulated entity [from charging] rates for its services other than those properly filed with the appropriate federal regulatory authority.” The filed rate doctrine prohibits a party from recovering damages measured by comparing the filed rate and the rate that might have been approved absent the conduct in issue.
The purpose of the filed rate doctrine is to: (1) preserve the regulating agency’s authority to determine the reasonableness of rates; and (2) insure that the regulated entities charge only those rates that the agency has approved or been made aware of as the law may require. The Supreme Court recently explained: “The duty to file rates with the Commission . . . and the obligation to charge only those rates . . . have always been considered essential to preventing price discrimination and stabilizing rates.”

H.J. Inc. v. Northwestern Bell Telephone Co., 954 F.2d 485, 488 (8th Cir.), cert. denied, 504 U.S. 957, 112 S. Ct. 2306, 119 L. Ed. 2d 228 (1992) (citations omitted). See also Wegoland, Ltd. v. Nynex Corp., 27 F.3d 17 (2d Cir. 1994); Taffet v. Southern Co., 967 F.2d 1483 (11th Cir.), cert. denied, 506 U.S. 1021, 113 S. Ct. 657, 121 L. Ed. 2d 583 (1992); Cullum v. Arkla, Inc., supra. In H.J. Inc., the H.J. class brought a RICO claim and alleged that the regulatory agency was involved in the fraudulent conduct and conspiracy with the public utility. Because of the alleged involvement of the regulatory agency, the H.J. class argued that the filed rate doctrine should not apply. The Eighth Circuit dismissed the argument and stated:

We are convinced, however, that the underlying conduct does not control whether the filed rate doctrine applies. Rather, the focus for determining whether the filed rate doctrine applies is the impact the court’s decision will have on agency procedures and rate determinations.

H.J. Inc., 954 F.2d at 489. The Court concluded that the damages claimed by the H.J. class could only be measured by comparing the difference between the rate the utility commission originally approved and the rate the commission should have approved absent the conduct of which the H.J. class complains.

The reasoning and the holding of the Eighth Circuit in H.J. Inc. apply with equal force to the case before us. The damages sought by the Cullums could only be gauged by assessing the difference between the rates charged by the PSC and the rates the PSC should have charged absent the pernicious conduct which the Cullums allege. That falls squarely within the proscription of the filed rate doctrine.

This court has not formally adopted the filed rate doctrine, although the General Assembly has enacted a statute which prevents a public utility from charging rates other than those approved by the PSC. See Ark. Code Ann. § 23-4-107 (1987). The policy behind the doctrine, as expressed by the Eighth Circuit in the H. J. Inc. decision, is persuasive in our judgment. That policy looks to the stability, uniformity, and finality inherent in limiting rate charges to what has been filed with the regulatory agency and what has been determined as the reasonable rate by that agency. This is a legislative function delegated by the General Assembly to the PSC. We adopt the filed rate doctrine today and apply it to the case at hand. We hold that the circuit court lacked jurisdiction over the civil causes of action in tort which necessarily required an assessment of damages measured by what was the filed rate with the PSC and what the rate should have been. To do otherwise would permit a direct attack on the authority of the PSC to fix rates.

Because the absence of subject matter jurisdiction in circuit court resolves the matter, we need not reach the Cullums’ remaining points relating to declaratory relief and res judicata. We do observe, however, that the Cullums’ second point alleges error by the trial judge in failing to rule on their request to declare the Arida/Arkoma contracts illegal and void. We have held that it is incumbent upon the affected party to obtain a ruling on a request for relief and failure to do so constitutes waiver. See Oglesby v. Baptist Medical Systems, 319 Ark. 280, 891 S.W.2d 48 (1995); Morgan v. Neuse, 314 Ark. 4, 857 S.W.2d 826 (1993). The Cullums failed to do this on their claim for declaratory relief.

Affirmed.

Jesson, C.J., not participating.

       The Cullums do not make this finding a point of their appeal.