text:
    Sue BURKE v. Vickii STRANGE and the City of Huntington
    98-434
    983 S.W.2d 389
    Supreme Court of Arkansas
    Opinion delivered December 3, 1998

      Oscar Stilley, for appellant.

      Orville C. Clift, P.A., for appellees.
   Ray Thornton, Justice.

Appellant Sue Burke appeals from the decision of the trial court that each party to her underlying Freedom of Information Act suit should bear their own attorney’s fees and costs. We affirm. The abstract shows that no evidence was presented to the trial court by appellant as to what a reasonable attorney’s fee would be, no objection was made to the trial court’s order requiring each side to bear its own attorney’s fees and costs, and no petition for rehearing on the issue of attorney’s fees was addressed to the trial court. Appellant argues that the language of the statute providing for the award of attorney’s fees to the prevailing party required the trial court to make such an award. There is no showing that this argument was made to the trial court. We note that the trial court’s decision requiring appellees Vickii Strange and the City of Huntington to make copies of the requested records and to provide those copies to appellant was not appealed by either party.

While the disposition of the underlying case is not before us in this appeal, a summary of the facts is helpful in understanding appellant’s arguments that the failure to award attorney’s fees was an abuse of discretion, and that we should revisit our decision in Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), and modify that decision to hold that attorney’s fees and costs should be awarded to every prevailing plaintiff. Here appellant sought access to the City of Huntington’s financial records from February through October 1997. There is no contention that the records were not made available for inspection; the controversy turned upon restrictions imposed by the City on the means of making copies. Appellees declined to make copies of the ledger, but set a date, November 3, 1997, for appellant to be furnished the ledger for appellant’s purpose of copying the information. However, when appellant arrived with a combination fax machine-copier to do the duplicating, appellees noted that the use of this equipment would require the disassembly of the ledger book, and refused to allow this to be done.

Appellant filed suit in Sebastian County Chancery Court on November 13, 1997, asking that the city be found in violation of the Arkansas Freedom of Information Act, that the court order the immediate release of all documents requested, and that the city pay costs and attorney’s fees. A bench trial was held on December 14, 1997. During the trial, Ms. Strange requested attorney’s fees on behalf of the city, and presented evidence of the billable hours spent, as well as the expenses incurred by the city. Appellant presented no evidence of time spent by counsel or expenses incurred, but asked in closing arguments for attorney’s fees in the amount of twenty-five hundred dollars and presented to the trial court a proposed order with the amount of the requested attorney fee left blank, saying, “[Wjhatever you want to put in will be fine, and we’ll take it and go from there.”

The trial court found that appellant should immediately be provided with the documents requested, and approved appellees’ choice that it make the copies and charge appellant twenty-five cents per page. The court further found that, “Each side will bear their own attorney’s fees and costs.” The matter was adjourned without further comment from either party.

On January 8, 1998, the court entered an order of dismissal, having found that both appellant and appellee had fully complied with the court’s previous order, and again found that each party should bear its own costs and attorney’s fees.

Attorney’s fees are awarded only when expressly provided for by a statute or rule. Security Pac. Hous. Servs., Inc. v. Friddle, 315 Ark. 178, 185, 866 S.W.2d 375, 379 (1993). The Arkansas Freedom of Information Act provides in pertinent part:

In any action to enforce the rights granted by this chapter, or in any appeal therefrom, the court shall assess against the defendant reasonable attorney’s fees and other litigation expenses reasonably incurred by a plaintiff who has substantially prevailed unless the court finds that the position of the defendant was substantially justified or that other circumstances make the award of these expenses unjust . . .

Ark. Code Ann. § 25-19-107(d) (Repl. 1996).

Appellant presents a persuasive argument that the Freedom of Information Act must be liberally construed. The Arkansas statute provides authority for a discretionary award of attorneys’ fees and costs in favor of a plaintiff who substantially prevails under the Arkansas Freedom of Information Act. The Freedom of Information Act was passed wholly in the public interest, and it is to be liberally interpreted to the end that its praiseworthy purposes may be achieved. Sebastian County Chap. of the Am. Red Cross v. Weatherford, 311 Ark. 656, 658, 846 S.W.2d 641, 643 (1993); Depoyster v. Cole, 298 Ark. 203, 205, 766 S.W.2d 606, 607 (1989); Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 71, 522 S.W.2d 350, 351 (1975); Laman v. McCord, 245 Ark. 401, 404, 432 S.W.2d 753, 755 (1968).

The trial court need not make a fee award in every Freedom of Information Act case; indeed, the purpose of the fee-shifting provision is to assess fees and costs where public officials have acted arbitrarily or in bad faith in withholding records. Depoyster v. Cole, 298 Ark. 203, 208-09, 766 S.W.2d 606, 609 (1989) (citing Watkins, Recent Developments Under the Arkansas Freedom of Information Act, 1987 Ark. L. Notes 59, 64).

An award of attorney’s fees will not be set aside absent an abuse of discretion by the trial court. Chrisco v. Sun Indus., 304 Ark. 227, 230, 800 S.W.2d 717, 719 (1990)(citing State Farm Fire & Casualty Co. v. Stockton, 295 Ark. 560, 750 S.W.2d 945 (1988)) The decision whether to award a fee in such cases is a decision within the trial court’s discretion. Security Pac. Housing Servs., Inc. v. Friddle, 315 Ark. 178, 185, 866 S.W.2d 375, 379 (1993); Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 760, 911 S.W.2d 586, 591 (1995).

While we are sympathetic to appellant’s argument that reasonable attorney’s fees should have been awarded, there was no showing that any presentation was made to the trial court as to what a reasonable attorney’s fee would be. Appellant did not request additional findings on the ruling from the trial court, made no objection below to the court’s order, nor filed a petition for rehearing. In the absence of a showing that the trial court was given the opportunity to pass on appellant’s arguments in favor of the award of attorney’s fees, we must affirm the trial court’s decision. Arguments raised for the first time on appeal will not be considered on appeal. Furman v. Holloway, 312 Ark. 378, 383, 849 S.W.2d 520, 523(1993). Where the abstract does not reflect that the argument, or any similar argument, was made to the trial court, we will not reach the merits of the argument on appeal. Dellinger v. First Nat’l. Bank of Russellville, 333 Ark. 460, 463, 970 S.W.2d 223, 224 (1998); Barber v. Wilson, 330 Ark. 250, 255-56, 953 S.W.2d 579, 583 (1997).

In the case before us, appellant’s argument cannot be sustained based upon the record, or lack thereof, before this court. Appellant seeks for us to interpret the statute and articulate suitable standards to be used in assisting trial courts in exercising their discretion. While the court has a long history of interpreting the Freedom of Information Act liberally and will continue to do so, under these circumstances the record presented to us does not preserve appellant’s argument for reinterpretation of the statute, or the standard articulated in Depoyster, and we do not engage in the review of arguments not raised below. Furman, supra.

This court addressed a similar contention regarding attorney’s fees in River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998), and held that where the trial court denied appellant’s motion for attorney’s fees without explanation, we were unable to determine if the court found, in its discretion, that attorney’s fees were not warranted in this case. Without a specific ruling, it is impossible for us to say the trial court erred. Id. at 179, 781. Accordingly, we affirm.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Stacey Eugene JOHNSON v. STATE of Arkansas
    CR 98-743
    982 S.W.2d 669
    Supreme Court of Arkansas
    Opinion delivered December 3, 1998

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

Appellant Stacey Eugene Johnson has filed a motion for access to sealed records. We granted Appellant’s motion for writ of certiorari to settle the record on September 10, 1998. The writ was returned on October 12, 1998, and the supplemental record was filed at that time. Included in the supplemental record are sealed psychotherapy records of a child witness that were received in camera during Appellant’s trial. The trial court denied Appellant access to those records below.

Appellant now requests access to those records to review them for their possible bearing on the issues he raises on appeal. We grant the motion and order that both Appellant and the State be provided access to the sealed records, and that immediately thereafter, the records shall be resealed. To protect the patient’s privacy, we direct that both Appellant’s and the State’s abstracts and briefs be submitted to this court under seal, with only the State being permitted to access Appellant’s briefs and only the Appellant being permitted to access the State’s brief. Additionally, we direct the Clerk to set a new briefing schedule.


author: David Newbern, Justice.

text:
    Don JENKINS and Republican State Committee v. Honorable David BOGARD
    98-1303
    980 S.W.2d 270
    Supreme Court of Arkansas
    Opinion delivered December 10, 1998

      John Wesley Hall, for appellants.

      Compton, Prewett, Thomas & Hickey, P.A., by: Robin J. Carroll, for appellee.

      Winston Bryant, Att’y Gen., by: Warren Readnour, Ass’t Att’y Gen., for appellee.
   David Newbern, Justice.

This is an appeal from a writ of mandamus and declaratory judgment issued by appellee Circuit Judge David Bogard. The issues presented concern election procedures. Don Jenkins was certified by the Secretary of State as the Republican candidate for state representative, District 10, in the November 3, 1998 general election. The Democratic Party of Arkansas sued to have Mr. Jenkins’s name removed from the ballot or, alternatively, to prohibit the counting of votes cast for Mr. Jenkins. Individual residents of District 10 were later substituted as plaintifls. It was contended that Mr. Jenkins was ineligible because he had not resided in District 10 for one year as required by Ark. Const, art. 5, § 4. Judge Bogard agreed and issued his order striking Mr. Jenkins’s name from the ballot on October 29, 1998.

We stayed Judge Bogard’s order and granted an expedited appeal. Jenkins v. Bogard, 334 Ark. 645, 980 S.W.2d 548 (1998). Mr. Jenkins’s name thus remained on the ballot, but he lost the election. Kenneth Chitwood and Terry Wells, the substituted plaintiffs, move to dismiss Mr. Jenkins’s appeal on the ground that the issues are moot because the election has been held and our decision will have no practical effect.

In McCuen v. McGee, 315 Ark. 561, 868 S.W.2d 503 (1994), a case very similar to this one, we chose not to address the issues presented because of mootness resulting from the fact that the election in question had been held and nothing we might do would change the result. In that case, however, we noted that “appellant has not addressed that question [the public interest] except insofar as his own interest is concerned and we are not persuaded that an exception [to the mootness doctrine] should be made in this case.” McCuen, 315 Ark. at 564, 868 S.W.2d at 505. In this case, the contrary is true. Mr. Jenkins and the State Republican Committee have clearly stressed the importance of having the issues presented here decided for the benefit of orderly procedures for challenging the appearances of names on the ballot in future elections, and we agree. We therefore deny the motion to dismiss because the issues presented are ones likely to recur, Quinn v. Webb Wheel Products, 334 Ark. 573, 976 S.W.2d 386 (1998), and particularly because issues concerning election procedure are of public importance and should be resolved so that errors in election procedures, if any are held to have occurred, will not be repeated. See Wright v. Keffer, 319 Ark. 201, 890 S.W.2d 271 (1995).

The Secretary of State certified Mr. Jenkins’s name to the election boards of Crawford and Franklin Counties on September 14, 1998. The mandamus and declaratory judgment petition was filed September 30, 1998, and Judge Bogard scheduled a hearing for October 5, 1998. Mr. Jenkins was not, however, served with process until October 20, 1998, and a new hearing was set for October 28, 1998.

The theme of the appeal by Mr. Jenkins and the State Republican Committee is that Judge Bogard’s order was tardy and that, although it was stayed, the order caused Mr. Jenkins to lose votes because of confusion of the voters about whether Mr. Jenkins remained a candidate and whether votes cast for him would be counted. We are asked whether such “last minute” pursuit of the writ and declaratory judgment, and the order that was issued, were appropriate in view of the lateness of the filing of the petition and the failure of Judge Bogard to have a hearing upon it within two to seven days of its filing as required by Ark. R. Civ. P. 78(d).

We decline to address the question whether Judge Bogard abused his discretion in entertaining the petition that was filed just over a month prior to the election. We do so because the argument was not presented to Judge Bogard. We do not address arguments made for the first time on appeal. Dellinger v. First Nat’l Bank of Russellville, 333 Ark. 460, 970 S.W.2d 223 (1998). An exception to that rule is that we will address for the first time on appeal an argument that the trial court lacked jurisdiction of the subject matter with which it has dealt. See Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988); Roy v. International Multifoods Corp., 268 Ark. 958, 597 S.W.2d 129 (1980).

Mr. Jenkins concedes that he did not present the delay-in-filing issue to Judge Bogard, and he makes no argument that the issue is one of subject-matter jurisdiction. He also concedes that he did not object to Judge Bogard’s holding the hearing more than seven days after the petition was filed; however, he argues that Judge Bogard lost jurisdiction of the subject matter because of the violation of the requirement found in Rule 78(d) that a hearing be held neither less than two nor more than seven days after the petition for mandamus and declaratory judgment is filed. Despite the mootness of the issue, we choose to decide two issues we consider to be significant, i.e., the issue concerning the effect of a violation of Rule 78(d) and the issue concerning that which is necessary to establish residency.

We hold that the Circuit Court did not lose jurisdiction of the subject matter as a result of the violation of Rule 78(d) and that it was thus necessary for Mr. Jenkins to have objected in order to have preserved that issue for appeal. We also hold that the ruling to the effect that Mr. Jenkins had not satisfied the residency requirement posed by Ark. Const, art. 5, § 4, was correct. We therefore affirm.

1. Rule 78(d) and subject-matter jurisdiction

Arkansas Code Ann. § 7-5-207(b) (Supp. 1997) provides that “[n]o person’s name shall be printed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible at the time of the filing as a candidate for office, to hold the public office for which he is a candidate . . . .” The proper means of enforcing that provision is to petition for mandamus and declaratory judgment. State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989).

The requirement that a hearing be held on a mandamus petition no less than two and no more than seven days after filing appeared in Ark. Code Ann. § 16-115-104 (1987). The requirement was removed in favor of a 45-day limit by Act 582 of 1991. See Ark. Code Ann. § 16-115-104 (Supp. 1997). Recognizing that it was important to retain the shorter time period for hearings to be held with respect to petitions filed in election cases, we added subsection (d) to Rule 78 in order to retain the two-to-seven day limit for hearings of mandamus petitions filed in election matters. Subsection (d) of the rule provides as follows:

Mandamus and Prohibition. Upon the fifing of petitions for writs of mandamus or prohibition in election matters, it shall be the mandatory duty of the judge or chancellor having jurisdiction to fix and announce a day of court to be held no sooner than two (2) and no longer than seven (7) days thereafter to hear and determine the cause.

No cases have been decided interpreting the language of Rule 78(d), but its language is very similar to that found in the statute prior to the adoption of Act 582. In the Craighead County case and in Standridge v. Priest, 334 Ark. 568, 976 S.W.2d 388 (1998), we emphasized the necessity for promptness in deciding election issues. But in neither of those cases, nor in other cases in which the statute and its mandatory nature were considered, have we suggested that violation of the two-to-seven day provision would deprive the court of jurisdiction. See, e.g., Rastle v. Marion Co. Rural Sch. Dist., 260 Ark. 740, 543 S.W.2d 923 (1976); Arkansas State Police Comm’n v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1973).

Mr. Jenkins has cited cases in which the failure to file an election-contest action in time has been held to deprive the court of jurisdiction. See, e.g., Gay v. Brooks, 251 Ark. 565, 473 S.W.2d 441 (1971); Casey v. Burdine, 214 Ark. 680, 217 S.W.2d 613 (1949). Such cases do not address the question presented here, which is whether a court that has acquired jurisdiction by a timely filing loses it by failure to hold a hearing in the time required by law.

In Gilmer v. Massey, 303 Ark. 634, 799 S.W.2d 526 (1990), an inmate petitioned for mandamus contending a prison official had incorrectly calculated his parole-eligibility date. The hearing was held more than seven days after it was filed, and the inmate contended he was thus deprived of due process of law and was entitled to the relief sought in the petition. We held that the error had no such effect.

In cases that are perhaps more analogous to this one, we have held that provisions setting a time for holding a hearing or taking some action by the trial court are not “jurisdictional.” See Cobbins v. State, 306 Ark. 447, 816 S.W.2d 161 (1991)(juvenile-transfer hearing not held within 90-day period required by statute); Haskins v. State, 264 Ark. 454, 572 S.W.2d 411 (1978) (probation-revocation hearing not held within 60-day period required by statute). In the Cobbins case, we mentioned the fact that the statute was silent on the effect of noncompliance. Neither does Rule 78(d) address the effect of noncompliance.

In view of (1) the lack of any authority that the failure to hold the hearing in a timely manner deprived the court of jurisdiction of the subject matter; (2) the lack of any suggestion in Rule 78(d) or in the former statute on which it is based that a violation of the hearing limit has such an effect; and (3) the holdings of analogous cases that violations of such limits do not have that effect, we cannot say that the failure to follow the rule deprived the court of jurisdiction of the subject matter. It thus was necessary for Mr. Jenkins to have objected to the failure to hold the hearing within the time prescribed, and his failure to do so precludes him from raising the issue on appeal.

In closing on this point, we note that Mr. Jenkins’s failure to object to the untimeliness of the hearing makes it unnecessary for us to address the effect that failure to serve him with process prior to, or prior to the expiration of, the two-to-seven day period may have had.

2. Residency

According to Article 5, § 4, of the Arkansas Constitution, “[n]o person shall be a . . . Representative who, at the time of his election, is not . . . for one year next preceding his election a resident of the county or district whence he may be chosen . . . .” After hearing testimony on the residency issue, Judge Bogard found that Mr. Jenkins had not resided in District 10 for the year preceding the election.

The focus here is on the word “resided.” In Charisse v. Eldred, 252 Ark. 101, 102-03, 477 S.W.2d 480, 480 (1972), we said that, “[i]n determining qualifications of voters and public officials, the word ‘residence’ has usually been treated as if it were synonymous with ‘domicile’ and dependent to some extent upon the intention of the person involved.” “The determination of residence is a question of intention, to be ascertained not only by the statements of the person involved, but also from his conduct concerning the matter of residence.” Phillips v. Melton, 222 Ark. 162, 164, 257 S.W.2d 931, 932 (1953).

Mr. Jenkins presented evidence that, throughout the year preceding the election, he thought of District 10 as his area of residence. He worked in District 10, had his child educated there, received mail at a post office there, and had other ties to the District. He did not, however, actually move to District 10 from his home in District 11 until the spring of 1998 when a home he built in District 10 was completed.

“[T]he determination of residence requires an exploration of the candidates’ intentions and conduct,” State v. Craighead County Bd. of Election Comm’rs, 300 Ark. at 410, 799 S.W.2d at 171, and Mr. Jenkins may have had the necessary “intent.” There is, however, no question that he did not physically reside or five in District 10 for the full year preceding the election. The essential “conduct” that is missing is the act of “residing” in District 10, i.e., “living” there, being “physically present” there beyond work and civic activities. We cannot ignore the fact that Mr. Jenkins lived in District 11 until March 1998.

We have held that to effect a change of domicile from one locality or state to another, there must be an actual abandonment of the fist domicile, coupled with an intention not to return to it and there must be a new domicile acquired by actual residence in another place or jurisdiction, with intent of making the last acquired residence a permanent home.

Phillips v. Sherrod Estate, 248 Ark. 605, 613, 453 S.W.2d 60, 64 (1970).

Affirmed.


author: Tom Glaze, Justice.

text:
    Laurie CLEEK v. GREAT SOUTHERN METALS
    98-738
    981 S.W.2d 529
    Supreme Court of Arkansas
    Opinion delivered December 10, 1998

      Jay N. Tolley, for appellant.

      Bassett Law Firm, by: Angela M. Doss, for appellee.
   Tom Glaze, Justice.

Appellant Laurie Cleek initiated this workers’ compensation case after she slipped and fell on her employer Great Southern Metals’ premises on March 22, 1994. Although Great Southern later controverted Cleek’s claim as being not compensable, it paid her medical expenses incurred in the sum of $2,339.25, commencing after March 24, 1994, and continuing until February 21, 1996, when she was discharged from further treatment by Dr. W. C. Kendrick. Great Southern refused to pay for Cleek’s final visit to Kendrick, so she paid for that visit in the amount of $35.00. Cleek subsequently filed her workers’ compensation claim, and requested that her claim be determined compensable and controverted and that she be awarded attorney’s fees based upon the full amount of the medical expenses.

On June 17, 1996, the administrative law judge found Great Southern controverted Cleek’s compensable claim beginning after March 24, 1994 (her first medical visit), and he specifically determined Dr. Kendrick’s services were reasonably necessary. However, because Great Southern had paid all of Cleek’s medical expenses except for $35.00, and was not seeking reimbursement of its payments, the administrative law judge limited his award of attorney’s fees based only on the unpaid $35.00 amount. The commission affirmed the law judge’s decision although one commissioner dissented, stating his opinion was that Cleek had failed to show a compensable injury.

Cleek appealed to the court of appeals where she contended that she was entitled to attorney’s fees based on all medical expenses because her entire claim had been controverted. The court of appeals disagreed in a three-three decision. Cleek v. Great Southern Metals, 62 Ark. App. 177, 970 S.W.2d 304 (1998). We granted Cleek’s petition for review of that tie vote pursuant to Ark. Sup. Ct. R. 2-4(c), and upon our review, we reverse the commission’s decision. The commission’s attorney’s fees award is the sole issue on appeal.

On appeal of a workers’ compensation case from the court of appeals to this court, we view the evidence in the light most favorable to the commission’s decision and affirm that decision if it is supported by substantial evidence. Plante v. Tyson Foods, Inc., 319 Ark. 126, 890 S.W.2d 253 (1994). Substantial evidence exists if reasonable minds could have reached the same conclusion. Id.

In the instant case, the commission adopted the law judge’s findings and decision as being factually and legally correct. In doing so, the commission found, as previously stated above, that Great Southern had controverted Cleek’s medical care after March 24, 1994, and further found the medical treatment and services rendered by Dr. Kendrick in connection with Cleek’s compensable injury were reasonably necessary. However, the commission ruled that, because Great Southern had already paid all medical expenses incurred by Cleek except one bill in the amount of $35.00, she was only entitled to attorney’s fees based on the $35.00 amount Great Southern refused to pay.

The commission’s attorney’s fees award was given pursuant to Ark. Code Ann. § 11-9-715(a)(2)(B)(ii) (Repl. 1996), which provides that fees shall be allowed only on the amount of compensation controverted and awarded. The commission’s and the court of appeals’ prevailing opinion accepted Great Southern’s argument that the only amount controverted and awarded in this case was the $35.00 amount that Cleek had paid and Great Southern had refused to pay. In other words, Great Southern claimed that the commission could not award the $2,339.25 in medical expenses because Great Southern had previously paid them and did not seek their reimbursement.

While it is true that Great Southern did not request reimbursement of its payments totalling $2,339.25, it did ask the commission to allow Great Southern “credit” for such payments, if the commission determined Great Southern owed the medical expenses it had already paid. In fact, the commission found Great Southern had controverted Cleek’s entire claim, determined the medical expenses were reasonably necessary, and gave Great Southern the credit it requested. Having done so, we agree with the dissenting judges in the court of appeals’ Cleek decision that the commission effectively confirmed and awarded Cleek all of her medical expenses.

In conclusion, this court has long recognized that making an employer hable for attorney’s fees serves legitimate social purposes such as discouraging oppressive delay in recognition of liability, deterring arbitrary or capricious denial of claims, and insuring the ability of necessitous claimants to obtain adequate and competent legal representation. Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976). In the instant case, while Great Southern paid all but $35.00 of Cleek’s medical expenses, it never recognized liability for her injury, and if Cleek had not prevailed on the liability issue of her claim, she would have been barred from seeking any future medical expenses or disability benefits. Great Southern’s undisputed controversion of Cleek’s injury claim forced Cleek to try this case fully on the merits. If Cleek had not employed counsel to assist her in this matter, it is reasonable to conclude both her present and future claims for medical expenses and benefits would not have been properly presented and protected. 260 Ark. at 706-708; 543 S.W.2d at 485. If the fundamental purposes of attorney’s fees statutes such as § 11-9-715 are to be achieved, it must be considered that their real object is to place the burden of litigation expenses upon the party which made it necessary. Id.

We reverse the commission’s and the court of appeals’ decisions to the extent that they hold Cleek is entitled only to attorney’s fees based upon a recovery of $35.00. We remand to the commission to award attorney’s fees based upon the full amount of the medical expenses.

       A second commissioner concurred and joined in awarding attorney’s fees, but she would have awarded fees based on the full amount of medical expenses.


text:
    Jacinto HENDERSON v. STATE of Arkansas
    CR 98-546
    980 S.W.2d 266
    Supreme Court of Arkansas
    Opinion delivered December 10, 1998

      Ray Hartenstein and Frank Shaw, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly Terry, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Jacinto Henderson brings this appeal from his capital murder conviction and sentence to life imprisonment without parole. Henderson admits that he shot and killed Byron Sheppard, but he claims that he was justified in doing so. His sole point for reversal is based on his claim that the trial court erred in refusing him and his expert witness, Steve Nawojczyk, the right to give testimony bearing on Sheppard’s alleged prior gang affiliation and involvement in drugs. He submits this testimony, if admitted into evidence, would have shown that, at the time he shot Sheppard, he reasonably believed that he could not avoid the use of deadly physical force by retreating to his home. The State responds, saying the trial court’s ruling did not prohibit Henderson from offering such gang and drug evidence. Rather, the trial court merely ruled that Henderson could present testimony that, at the time of the shooting, he knew of Sheppard’s gang affiliation, drug involvement, and propensity for violence, but if Henderson offered that testimony, he would open the door for the State to offer rebuttal evidence showing Henderson had previously engaged in drug trafficking with Sheppard. The trial court grounded its ruling on the State’s right to show Henderson’s intent and motive when deciding whether he was justified in using deadly physical force against Sheppard.

The facts are largely undisputed. On January 18, 1997, at about midnight, Henderson and some of his friends went to a nightclub in Jonesboro named “Envisions.” He directed a derogatory remark towards a group of people, but Sheppard took the remark personally. Sheppard confronted Henderson, and in doing so, struck Henderson in the head. Henderson ran away, went home, and armed himself with a loaded shotgun. He then got in his car, and returned to the club. According to Henderson, when he departed his car, he saw Sheppard push individuals surrounding him out of the way and step towards Henderson. He claims he fired his shotgun when Henderson saw Sheppard’s right hand come up in the air. Henderson claimed that when he fired, Sheppard turned to run away. The bullet hit Sheppard in the back.

At trial, Henderson raised the defense to the capital murder charge that deadly physical force was necessary to defend himself, and the trial court ultimately gave the following justification instruction:

This is a defense only if:
First, Henderson reasonably believed that Sheppard was using or was about to use unlawful physical force; and
Second, Henderson only used such force as he reasonably believed to be necessary.
A person is not justified in using physical force if he knows that the use of deadly physical force can be avoided with complete safety by retreating.
Henderson, in asserting this defense, is required only to raise a reasonable doubt in your mind. Consequendy, if you believe that this defense has been shown to exist, or if the evidence leaves you with a reasonable doubt as to his guilt of capital murder, then you must find him not guilty. See AMCI2d 705; see also Ark. Code Ann. § 5-2-607 (Repl. 1997).

In support of his justification defense, Henderson introduced testimony that he believed Sheppard was a gang member, and that he further believed Sheppard to have been involved in two prior incidents where he and his associates attempted to shoot Henderson. He asserted these prior attempts on his fife had occurred at his home, and for that reason, Henderson did not feel safe there. Moreover, Henderson testified that these prior incidents, including Sheppard’s having struck him, caused Henderson to fear Sheppard as a violent person and, in turn, led him to shoot Sheppard.

After hearing the foregoing evidence, the trial court ruled that Henderson was entitled to the justification-defense instruction. However, Henderson argues that, while the trial court correctly gave the justification instruction, it erred when it disallowed additional evidence bearing on Sheppard’s reputation for violence. Specifically, Henderson proffered testimony that he knew Sheppard had been to prison for selling drugs, and that his expert witness, Mr. Nawojczyk, would testify that, because Sheppard was both a gang member and a drug seller, Sheppard necessarily had a propensity to be violent. In his proffer, Nawojczyk conceded that he had no idea whether Sheppard was a gang member at the time he was shot. Yet, because of a tattoo on Sheppard’s person, the expert said Sheppard could have been in a gang at the time of his death.

The law is well settled that Henderson had the right to introduce specific instances illustrative of Sheppard’s violent character that were directed at him or that were within his knowledge. Johninson v. State, 317 Ark. 431, 878 S.W.2d 727 (1994); Thompson v. State, 306 Ark. 193, 813 S.W.2d 249 (1991). Accordingly, Henderson presented considerable testimony bearing on Sheppard’s prior violence towards Henderson, which was admitted without objection. However, Henderson wanted to prove Sheppard’s violence existed merely because Sheppard had been a gang member known to have sold drugs. As previously noted, the trial court ruled that it would allow such testimony, but in doing so, it would permit the State to rebut that testimony with its own proof that Henderson had previously engaged in buying drugs from Sheppard. The trial court found that such proof was relevant as to Henderson’s intent and motive at the time of the shooting. The trial court was correct.

When justification is offered as a defense, evidence of a victim’s violent character is relevant to the issue of which party was the aggressor and whether the accused reasonably believed himself to be in danger of suffering unlawful deadly force. Johninson, 317 Ark. at 441, 878 S.W.2d at 732. In this respect, Henderson testified at length concerning his fearful state of mind at the time of the shooting. However, when Henderson offered evidence to show that Sheppard’s drug activity caused Henderson to be fearful of Sheppard based on that fact alone, the trial court, as previously discussed, determined the State could rebut such evidence with drug proof of its own that would help the jury decide whether Henderson, having previously engaged in drug trafficking with Sheppard, was reasonably justified in using deadly force on Sheppard in these circumstances. The trial court’s expressed key determination was whether Henderson could be justified in fearing Sheppard based on actions Henderson engaged in himself and had also engaged in with Sheppard.

Evidence of other crimes or bad acts committed by an accused, for which he is not charged in the present action, is generally not admissible. See Ark. R. Evid. 404. (Emphasis added.) Nevertheless, evidence of a person’s other acts may be admissible if it is probative of some relevant fact other than character, such as motive, intent, and state of mind. Rowdean v. State, 280 Ark. 146, 655 S.W.2d 413 (1983); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986); Williamson v. State, 267 Ark. 46, 590 S.W.2d 847 (1979). See also 41 Ark. L. Rev. 584, 598 (1988). In other words, evidence offered under Rule 404(b) is not offered as proof of character, but for some non-character purpose. In White, the court further pointed out that Rule 404(b) permits the introduction of testimony of other criminal activity if it is independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove the defendant is a criminal — then evidence of that conduct may be admissible with a proper cautionary instruction by the court. 290 Ark. at 140, 717 S.W.2d at 789.

Here, Henderson chose not to testify regarding Sheppard’s drug-related history, since to do so would have allowed the State to show Henderson’s own prior drug relationship with Sheppard. Such evidence would clearly have been relevant concerning what Henderson’s intent or state of mind might have been when he went home, armed himself with a loaded gun, and returned to Envisions Club to shoot and kill Sheppard.

In conclusion, we further hold that our decision in Johninson dictates the result we reach in affirming here. There, we pointed out that the defendant Johninson proceeded at trial under the defense of justification, which is a matter of intent and, as such, a question of fact for the jury. 317 Ark. at 440, 878 S.W.2d at 732. The Johninson court determined that the defendant had testified at great length concerning his state of mind at the time of the shooting of his victim, Fowler. Defendant Johninson also related that he knew Fowler was a gang member, that he was violent, and that he intended to take Johninson’s life. This court concluded that the jury had sufficient evidence from which it could draw its own conclusions with respect to Johninson’s justification defense and an expert witness could have added nothing to Johninson’s first-person account. Id. at 441; 878 S.W.2d at 732.

The same can be said of Henderson’s case. As already discussed, Henderson was able to testify to Sheppard’s gang association and Henderson gave his first-person account of Sheppard’s prior attempts on his fife. Here, like the defendant in Johninson, Henderson seeks to use expert testimony on gang conduct in general in order to establish, inferentially, the violent character of the victim. Such an expansion of the methods of proving character is not contemplated by the language of Ark. R. Evid. 405. Johninson, 317 Ark. at 441, 878 S.W.2d at 733.

In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for rulings made adversely to Henderson, and we find no reversible error.

For the reasons stated above, we affirm.


author: Robert L. Brown, Justice.

text:
    Charles HAMBAY, Cecilia Dotson, Kathryn Keeland, Cliff Bartlett, Martha Doss, and Fred Sinroll v. Carolyn WILLIAMS, Phillip Jackson, Kay Phillips, Cindy Vowell, and Shirley Dos, In Their Official Capacities as Assessor, County Judge, Collector, Treasurer, and Clerk for Carroll County, Arkansas; County of Carroll, Arkansas; and Jimmie Lou Fisher, Arkansas State Treasurer
    98-30
    980 S.W.2d 263
    Supreme Court of Arkansas
    Opinion delivered December 10, 1998

      Oscar Stilley, for appellants.

      Winston Bryant, Att’y Gen., by: Shirley E. Guntharp, Deputy Att’y Gen., for appellee.

      The Nixon Law Firm, by: David G. Nixon and Michael D. Holland, for amicus curiae Richard M. Mayes, Leland S. Matlock, Frances J. Matlock, Joseph M. Hart, Cheryl L. Hart, and Lawrence Timmons.
   Robert L. Brown, Justice.

The appellants, Charles Hambay and others (collectively referred to as Ham-bay), appeal from an order of dismissal and summary judgment. They raise multiple issues on appeal: (1) that the chancery court erred in dismissing the illegal-exaction suit for lack of subject-matter jurisdiction in light of this court’s decision in Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998); (2) that the chancery court erred in granting summary judgment in favor of the appellees (various county officials and the State Treasurer, collectively referred to as the County); (3) that the chancery court erred in dismissing Count II of Hambay’s complaint for lack of subject-matter jurisdiction; and (4) that the chancery court erred in prematurely cutting off discovery. Because we hold that the chancery court did not decide all of the issues raised by Hambay’s complaint, we dismiss this appeal without prejudice to refile it due to failure to comply with Ark. R. Civ. P. 54(b).

On April 30, 1997, Hambay filed his complaint on behalf of a class of taxpayers in Carroll County. He alleged that the County had reappraised its real property countywide pursuant to Act 758 of 1995 without complying with the rollback provisions of Amendment 59 of the Arkansas Constitution. The County-answered and then moved for summary judgment on the basis that the reappraisal was done pursuant to Act 153 of 1955, now codified at Ark. Code Ann. § 26-26-304 (Repl. 1997), and not Act 758. The County attached an affidavit from the County Assessor, Carolyn Williams, establishing that fact. The County also moved to dismiss the complaint under Ark. R. Civ. P. 12(b)(2) on grounds that Hambay was challenging a tax-collection scheme and not an illegal tax. According to the County, under Pockrus v. Bella Vista Village Property Owners Ass’n, 316 Ark. 468, 872 S.W.2d 416 (1994), subject-matter jurisdiction for improper collection of county taxes is in county court.

On August 4, 1997, Hambay filed a second amended complaint where he added a Count Two. Count Two contested the General Assembly’s enactment of Act 916 of 1995 because the purpose of the original bill (House Bill 1739) changed over the course of the legislation in violation of Ark. Const, art. 5, § 21. Act 916, as passed, added a 10 percent income tax surcharge for residents of counties that had not approved a tax of 25 mills for maintenance and operation of the public schools. It was also alleged in Count Two that this tax was not approved by the qualified electors, as required by Ark. Const, art. 5, § 38. In 1996, the people of Arkansas adopted Amendment 74 to the Arkansas Constitution, which fixed a minimum maintenance and operation tax of 25 mills for the public schools in each county. According to Count Two, Act 916 impermissibly pressured the Arkansas voters to approve Amendment 74 and, thus, deprived the voters of their free will. Hambay prayed that Amendment 74 be declared a nullity.

On September 3, 1997, the chancery court entered its order, first finding that it lacked subject-matter jurisdiction over Hambay’s complaint and then entering summary judgment in favor of the county for the reason that the reappraisal was done under Act 153 of 1955 and not Act 758 of 1995. The order stated:

(1) The Amended Complaint is hereby dismissed per Rule 12(b)(2) Arkansas Rules of Civil Procedure as to the issue challenging the reassessment and tax collection scheme used by Carroll County, Arkansas. The Supreme Court of Arkansas stated in Pockrus v. Bella Vista Property Owners Association, 3116 (sic) Ark. 468, 872 S.W.2d 416 (1994) that the Chancery Court is without subject matter jurisdiction. Proper jurisdiction as to all matters relating to County taxes is exclusive to the County Court.
(2) The Motion for Summary Judgment filed by the defendants is granted per Rule 56 of the Arkansas Rules of Civil Procedure. The undisputed fact as recited in the affidavit filed by Carolyn Williams, Carroll County Assessor, is that the latest assessment was performed pursuant to Act 153 of 1955 as amended, codified as A.C.A. 26-26-304 and not done pursuant to Act 758 of 1995. Therefore, the plaintiffs challenge of the constitutionality of Act 758 of 1995 does not present a justiciable controversy between the named plaintiffs and defendants.

Under Rule 54(b), an order is not final when it “adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties.” Our general law regarding Rule 54(b) violations was recently set forth in Hodges v. Huckabee, 333 Ark. 247, 968 S.W.2d 619 (1998):

We have said many times that the failure to comply with Rule 54(b) and adjudicate all claims against all parties is jurisdictional and renders the matter not final for purposes of appeal. See, e.g., Richardson v. Rodgers, 329 Ark. 402, 947 S.W.2d 778 (1997); Tucker v. Lake View Sch. Dist. No. 25, 323 Ark. 693, 917 S.W.2d 530 (1996); State Farm Mut. Auto Ins. Co. v. Thomas, 312 Ark. 429, 850 S.W.2d 4 (1993). Because a violation of Rule 54(b) relates to the subject-matter jurisdiction of this court, we must raise the issue on our own. Richardson v. Rodgers, supra; Tucker v. Lake View Sch. Dist. No. 25, supra; Reeves v. Hinkle, 321 Ark. 28, 899 S.W.2d 841 (1995); Cortese v. Atlantic Richfield, 317 Ark. 207, 876 S.W.2d 581 (1994). Subject-matter jurisdiction cannot be waived by the parties or by this court. Dean v. Tollman, 331 Ark. 127, 959 S.W.2d 41 (1997).

Hodges, 333 Ark. at 251, 968 S.W.2d at 621.

We do not reach the question of whether the chancery court could determine that it lacked subject-matter jurisdiction and then address the merits, because we believe it is clear that the chancery court did not address Count Two of Hambay’s complaint. Paragraphs 1 and 2 of the Order manifestly deal with the reassessment scheme used by the County and the question of which Act provided the authority for the reassessment. The issues under Count Two relating to Act 916 and Amendment 74 are simply not addressed, and they clearly allege an illegal exaction of a different stripe. This court has made it clear that the policy behind Rule 54(b) is to avoid piecemeal appeals. See Hodges v. Huckabee, supra; Cortese v. Atlantic Richfield, 317 Ark. 207, 876 S.W.2d 581 (1994).

Because Count Two has not been resolved, we dismiss this appeal for lack of finality without prejudice to refile at a later time.

Appeal dismissed.

Imber, J., not participating.

       Correct citation is Pockrus v. Bella Vista Property Owners Association, 316 Ark. 468, 872 S.W.2d 416 (1994).


author: Annabelle Clinton Imber, Justice.

text:
    Eugene ESTER v. NATIONAL HOME CENTERS, INC.
    98-405
    981 S.W.2d 91
    Supreme Court of Arkansas
    Opinion delivered December 10, 1998

      Walker, Campbell & Dunklin, by: Sheila F. Campbell, for appellant.

      Barber, McCaskill, Jones & Hale, P.A., by: Robert L. Henry III and R. Kenny McCulloch, for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Eugene Ester, appeals from the decision of the Workers’ Compensation Commission denying him benefits for injuries he sustained in a work-related accident. The Commission found that Mr. Ester failed to rebut the statutory presumption in Ark. Code Ann. § 11-9-102(5)(B)(iv) (Supp. 1997) that his injury was substantially occasioned by the use of illegal drugs. The Commission also concluded that the statute does not violate the constitutional guarantees of due process or equal protection. The Court of Appeals affirmed the Commission’s decision. Ester v. National Home, Centers, Inc., 61 Ark. App. 91, 967 S.W.2d 565 (1998). We granted a petition for review in order to address the application of the statutory presumption to drug tests that show the presence of drug metabolites. Upon further examination of the record in this case, we conclude that we are unable to fully address that issue at this time. We affirm the decision of the Commission.

On March 28, 1995, Eugene Ester was injured when the truck he was driving for National Home Centers turned over, spilling a load of timber onto the road. While being treated for his injuries, Mr. Ester submitted to a drug-screen test. The test results were positive for opiates and cocaine metabolites. Mr. Ester subsequently filed a claim for workers’ compensation benefits. National Home Centers controverted the claim on the basis that Mr. Ester’s injuries were not compensable because they were “substantially occasioned by the use of. . . illegal drugs” pursuant to Ark. Code Ann. § 11-9-102(5)(B)(iv) (Supp. 1997).

At the hearing before an Administrative Law Judge, the positive drug-test results were introduced into evidence. A letter from Dr. Thomas Rooney explained that the positive result for opiates could be attributed to the morphine shot that Mr. Ester received prior to the administration of the drug screen. Mr. Ester testified that he had not used cocaine or any other illegal drug on the day of the accident. However, he admitted to using one or two rocks of cocaine approximately three days before the accident, and attributed the positive result for cocaine metabolites to this incident. Mr. Ester testified that, other than this isolated incident, he had not used cocaine since 1988.

Mr. Ester further testified that he believed the accident occurred because the timber had been loaded improperly onto the flatbed of his truck. When his truck rounded a curve, the load shifted and the truck overturned. Mr. Ester stated that he told the people loading the timber that it was not properly banded. They agreed with him, but asked him to go ahead and carry the load as it was. Even though he believed the timber was loaded improperly, Mr. Ester admitted that he helped secure the load to the flatbed.

State Trooper Oliver Nunn investigated the accident. He testified at the hearing that there were 150 feet of scuff marks at the scene. Trooper Nunn testified that no adverse weather conditions contributed to the accident. Rather, it was his opinion that the truck turned over because it was going too fast as it went around a curve on the 1-40 exit ramp. He further stated that he got close enough to Mr. Ester to determine that no alcohol was involved. Trooper Nunn did not issue a citation as a result of this accident.

The ALJ concluded that Mr. Ester presented sufficient evidence to rebut the statutory presumption that his injuries were substantially occasioned by the use of illegal drugs and awarded benefits. After conducting a de novo review of the record, the Workers’ Compensation Commission reversed the ALJ’s decision, concluding that Mr. Ester failed to rebut the statutory presumption because the only evidence Mr. Ester presented to establish that he was not under the influence of illegal drugs at the time of the accident was his own testimony, which the Commission did not find to be credible. The Commission pointed out that Mr. Ester tested positive for cocaine metabolites, and that Trooper Nunn testified that the accident was caused by the driver going too fast for conditions. The Commission concluded that this evidence indicated that the cause of the accident was consistent with impairment due to illegal drugs.

On appeal to the Commission, Mr. Ester also argued that the statutory presumption violated his constitutional rights to due process and equal protection. The Commission upheld the statute’s constitutionality by concluding (a) that the presumption is consistent with, and rationally related to, the legitimate purpose of placing the burden of production on the party with the greatest access to relevant information; and (b) that a positive test for drug metabolites in urine samples creates a sufficiently reasonable inference of impairment so as to support the presumption that the injury was caused by drug use. Accordingly, the Commission denied Mr. Ester’s request for benefits. The Court of Appeals agreed with the Commission that Mr. Ester faded to rebut the statutory presumption and affirmed the Commission. Ester, supra. The Court of Appeals also affirmed the Commission on Mr. Ester’s equal protection and due process challenge, noting that the statute could also be sustained on the basis that it was rationally related to the legitimate government objective of promoting a safe workplace. Id.

In reviewing an appeal from the Workers’ Compensation Commission, we view the evidence in a fight most favorable to the Commission’s decision and affirm when that decision is supported by substantial evidence. Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998); Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. We will not reverse the Commission’s decision unless fair-minded persons could not have reached the same conclusion when considering the same facts. Id.

In 1993, the General Assembly enacted the following provision, codified at Ark. Code Ann. § ll-9-102(5)(B)(iv) (Supp. 1997):

(B) “Compensable injury” does not include:
(iv)(a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.
(b) The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebut-table presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders.
(d) An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician’s orders did not substantially occasion the injury or accident.

Mr. Ester argues that the drug-test results did not establish the presence of cocaine in his system at the time of the accident. Specifically, Mr. Ester asserts that the presence of cocaine metabolites revealed by the drug test are not equivalent to the presence of cocaine and, thus, such test results are insufficient to invoke the statutory presumption. In support of this argument, Mr. Ester presents technical evidence on appeal concerning certain components of cocaine that may not be present in a person’s system when there is a positive indication for cocaine metabolites. However, there is no indication from the record that this evidence was presented to Commission. We cannot consider evidence on appeal that was not first presented to the Commission. See Ark. Code Ann. §11-9-705 (Supp. 1997).

Mr. Ester’s drug screen showed a positive indication for “coca met” or cocaine metabolites. Arkansas Code Annotated § 11-9-102(5) (B)(iv) states that the “presence” of an illegal drug in the claimant’s system triggers a mandatory rebuttable presumption that the claimant’s injury was substantially occasioned by the use of that drug. Mr. Ester himself admitted that he had used cocaine three days prior to the accident. His testimony that cocaine was present in his body for some period of time was corroborated by the positive test results for cocaine metabolites. The test results did not quantify the concentration of cocaine metabolites present in Mr. Ester’s system. However, there is no statutory requirement that a certain quantity of an illegal drug be proved in order to show its “presence.” Mr. Ester presented no scientific evidence to support his contention that a positive test result for cocaine metabolites does not measure the psychoactive component in cocaine. The Commission concluded that a preponderance of the evidence established the presence of cocaine in Mr. Ester’s system at the time of the accident, thus triggering the statutory presumption that his injury was substantially occasioned by the use of illegal drugs. Based upon this record, we cannot say that the Commission improperly applied the presumption.

Mr. Ester also contends that the evidence was sufficient to rebut the presumption. Specifically, he relies upon his testimony that he had not used cocaine on the day of the accident and his opinion testimony that the accident was caused by the improper loading of the timber. According to Mr. Ester, the Commission arbitrarily disregarded his undisputed testimony.

It is well settled that the credibility of witnesses is a matter completely within the province of the Commission. Benton Serv. Ctr. v. Pinegar, 269 Ark. 768, 601 S.W.2d 227 (1980); see also Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998). The Commission is not bound to accept the testimony of any witness, even if uncontradicted. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). Further, it is well-settled that the testimony of an interested party is taken as disputed as a matter of law. Knoles v. Salazar, 298 Ark. 281, 766 S.W.2d 613 (1989); Waterfield v. Quimby, 277 Ark. 472, 644 S.W.2d 241 (1982).

As an interested party, Mr. Ester’s testimony must be considered controverted as a matter of law. Furthermore, according to his own testimony there were witnesses who could have corroborated his complaint about improper loading and his state of sobriety on the day of the accident and during the three days leading up to the accident. However, he chose not to call any of those witnesses.

Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. See Clark v. State, 253 Ark. 454, 486 S.W.2d 677 (1972); Continental Express v. Harris, supra. The Commission weighed Mr. Ester’s uncorroborated testimony regarding his use of drugs and the improper loading of timber against positive test results for cocaine metabolites and Trooper Nunn’s testimony regarding the cause of the accident. Under these facts, we find that there is substantial evidence to support the Commission’s decision that Mr. Ester failed to rebut by a preponderance of the evidence the statutory presumption that his injury was substantially occasioned by the use of cocaine. It should be noted that we recently upheld the Commission’s finding that the statutory presumption triggered by a positive blood-alcohol test was rebutted by a preponderance of the evidence. See ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). However, in contrast to Mr. Ester’s reliance on his own uncorroborated testimony in this case, the claimant in ERC submitted medical reports and testimony by his supervisor and treating physicians to support the Commission’s finding that the accident was not substantially occasioned by the use of alcohol.

Mr. Ester’s final argument is that the statute is unconstitutional because the presence of cocaine metabolites is not rationally related to intoxication or impairment. He claims it bears no relationship to the presence of the actual drug in the body, gives no notice of its potential effect, creates room for discriminatory enforcement, and is an arbitrary and capricious exercise of legislative power.

All statutes are presumed constitutional and we resolve all doubts in favor of constitutionality. Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998); ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997); McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). The party challenging a statute’s constitutionality has the burden of proving that the act lacks a rational relationship to a legitimate objective of the legislature under any reasonably conceivable set of facts. Arkansas Hosp. Ass’n v. Arkansas St. Bd. Of Pharmacy, 297 Ark. 454, 763 S.W.2d 73 (1989); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). See also Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995); Winters v. State, 301 Ark. 127, 782 S.W.2d 566 (1990). It is not our role to discover the actual basis for the legislation. Arkansas Hosp. Ass’n, supra; Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). We merely consider whether there is any rational basis which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of arbitrary and capricious government purposes. If we determine that any rational basis exists, the statute will withstand constitutional challenge. See Arkansas Hosp. Ass’n., supra.

In this case, a rational basis does exist for the legislation. The Commission pointed out that the rebuttable presumption is rationally related to the legitimate government objective of placing the burden of production on the party with the greatest access to relevant evidence. We agree. Obviously the claimant for benefits will have more information about the presence of drugs in his system than the employer. Additionally, the presumption is rationally related to promoting a safer workplace. The presumption encourages employees to remain drug-free and thereby promotes the state’s legitimate objective — safety in the workplace.

With respect to Mr. Ester’s argument that the presence of cocaine metabolites bears no relationship to the presence of cocaine in his body, there is no evidence in the record demonstrating the lack of a rational relationship between the rebuttable presumption and a positive test for cocaine metabolites. Thus, he has failed to overcome the presumption that Ark. Code Ann. § 11-9-102(5) (B)(iv)(b) is constitutional. Likewise, Mr. Ester’s due process challenge that the statute has the potential for discriminatory enforcement and fails to give notice of its effect is without merit. The presumption’s application is mandatory when an illegal drug is present, and the statute states clearly that benefits will be denied if the claimant fails to rebut the presumption.

Finally, Mr. Ester cites Recchi American Inc. v. Hall, 692 So. 2d 153 (Fl. 1993) in support of his constitutional challenge. However, Recchi is inapposite because the Florida statute contained language that precluded rebuttal of the presumption if the workplace was designated “drug-free.” Recchi, supra. Thus, Recchi does not support Mr. Ester’s contention that the presumption in Ark. Code Ann. § ll-9-102(5)(B)(iv) is unconstitutional.

Affirmed.


author: Ray Thornton, Justice.

text:
    Eugene HORTON v. Billy Joe FERRELL
    97-1210
    981 S.W.2d 88
    Supreme Court of Arkansas
    Opinion delivered December 10, 1998

      Thomas D. Deen, for appellant.

      Brockman, Norton & Taylor, by: C. Mac Norton, for appellee.
   Ray Thornton, Justice.

In this appeal dealing with the appropriate role of a special master appointed in a civil case, appellant contends that a special master is a judge subject to the Code of Judicial Conduct, and that when the special master declined to disqualify himself after relying upon ex parte communications, the trial court committed reversible error when it did not discharge the master and strike his report. We agree and remand for further proceedings.

The case developed as an accounting action following the dissolution of a partnership for growing tomatoes conducted by the parties in Bradley County from 1988 through 1992. Appellant Eugene Horton is the proprietor of Horton Tomato Company, a tomato-packing house and produce-brokerage firm located in Hermitage. Appellee Billy Joe Ferrell is an area farmer. The unwritten agreement between the two was that appellant would be responsible for financing, packing, and marketing the crops produced, while appellee would be responsible for growing the tomatoes. Except for one year, profits were to be equally divided.

The principal asset of the partnership resulted from a damage award from DuPont Corporation for supplying tainted herbicide for use on tomatoes in 1989 and 1990. The net recovery to the parties in this case was $678,265.47. When the parties determined to dissolve the partnership, this sum was deposited in the registry of the court, and the court appointed a special master, Richard L. Schwartz, to make proposed findings of fact and conclusions of law as to the proper distribution of partnership assets, including the funds on deposit and certain farm equipment. Mr. Schwartz, a certified public accountant, had acted as a master in a previous case, but the record does not reflect that he was familiar with the Code of Judicial Conduct, or that he was informed or instructed in the conducting of hearings or the legal issues relating to the circumstances of this case.

The master solicited documents from the parties and took their testimony, and met individually with each party and his attorney, without the other side present. In addition to the interrogatories exchanged by the parties, the master further submitted to each side a list of questions to be answered, and used these unsworn answers in the preparation of his report. On September 15, 1995, the master submitted a preliminary draft of his report, which revealed that the master had consulted a number of third parties and other sources to obtain much of the information utilized in his findings on the issue of the partnership’s 1991 receipts. For example, the draft report lists among the information relied upon in completing this report several telephone discussions by the master and an associate accountant in his firm with other growers and buyers from both Arkansas and other states, along with agriculture agents from both state and federal agencies, as well as “other information deemed necessary for completion of this engagement.” This information was apparently utilized in determining partnership profits for 1991, the records for which were destroyed in a fire at appellant’s offices. Finding some discrepancies in the price estimated in the evidence presented by appellant, the master conducted some “research” through telephone calls to other markets and local growers.

Upon learning that ex parte communications had been employed by the master, appellant promptly sought to obtain information about these communications, and, after being informed of the extent of the use of ex parte information, objected to the draft report at the next hearing on December 5, 1995. Appellant’s objection to the report and motion for the master’s recusal were denied at the December hearing, and, following that hearing, the master conducted some additional “research” through telephone calls to other markets and local growers.

The master filed his final report with the court on March 26, 1996. On April 15, 1996, appellant filed a motion to discharge the master, objecting to the court’s consideration of the master’s report because of the ex parte communications and the investigative role employed by the master, as well as the report’s substantive findings. The master’s testimony was taken at the hearing on the motion on May 9, 1996. He stated that he had not filed a record of the proceedings before him, but only those exhibits and documents attached to the final report. The substance of his contacts with outside sources was not reduced to written form for the record, and the master testified that there were others he had contacted whose names he could not recall.

At the hearing, the trial court ruled that appellant was precluded from introducing any testimony or other evidence not considered by the master. The trial court overruled appellant’s objections to the master’s report, and adopted the report in its entirety, finding that the master’s findings of fact were not clearly erroneous. The trial court found that appellant’s motion to strike the master’s report was not timely filed with the court, and that appellant had waived any objections as to the manner in which the master gathered evidence.

From those findings appellant brings this appeal, arguing that the trial court erred in denying appellant’s motion to strike the master’s report and discharge the master; that the trial court erred in refusing to receive new evidence in reviewing the master’s report; and that the trial court erred in adopting the master’s proposed findings. We do not agree with the trial court’s finding that this objection and request for recusal was not timely filed with the trial court, and next consider the merits of the objection and motion.

Although chancery cases are reviewed de novo on appeal, we will not disturb a chancery court’s findings of fact unless they are clearly erroneous or clearly against the preponderance of the evidence. McGarrah v. McGarrah, 325 Ark. 81, 82, 924 S.W.2d 453 (1996).

We first address the question of whether a special master is a judge, subject to the provisions of the Code of Judicial Conduct. Rule 53 of the Arkansas Rules of Civil Procedure governs the appointment of masters, giving each court in which an action is pending the authority to appoint a special master therein, subject to the limitations of the rule. Ark. R. Civ. P. 53(a). Reference to a master is limited to those cases tried without a jury, and only upon a showing that some exceptional condition requires it. Ark. R. Civ. P. 53(b). The master has the authority to put witnesses on oath and may examine upon oath, and he shall cause a record to be made of the evidence offered and excluded. Ark. R. Civ. P. 53(c). The master shall file his report with the clerk of the court and unless otherwise directed shall file with it a transcript of the proceedings and of the evidence and the original exhibits. Rule 53(e) requires that the trial court shall accept the master’s findings of fact unless they are clearly erroneous. A master’s finding is clearly erroneous when, although there is evidence to support it, the court is left with the definite and firm conviction that a mistake has been made by the master. McGraw Edison Co. v. Central Transformer Corp., 196 F. Supp. 664 (D.C. Ark. 1961); United States v. 620.98 Acres of Land, 255 F. Supp. 427 (D.D. Ark. 1966). See generally Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987).

The Code of Judicial Conduct states that: “Anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including an officer such as a magistrate, court commissioner, special master or referee, is a judge within the meaning of this Code. All judges shall comply with this Code ...” Ark. Code of Judicial Conduct, Application of the Code of Judicial Conduct § A. The canons and text establish mandatory standards, not mere guidelines. Farley v. Jester, 257 Ark. 686, 694, 520 S.W.2d 200, 204 (1975).

We hold that a special master is a judge subject to the Code of Judicial Conduct. Canon 3(B)(7) of the Code of Judicial Conduct provides that: “A judge shall not initiate, permit, or consider ex parte communication ...” The Commentary to this Canon reads: “A judge must not independently investigate the facts in a case and must consider only the evidence presented.” Ark. Code of Judicial Conduct, Canon 3(B)(7).

Here, the master conducted an independent investigation, and obtained evidence in an ex parte communication manner clearly in violation of Canon 3(B)(7). As soon as the master’s report was submitted to the trial court, appellant brought his timely objection to the report, pursuant to Rule 53(e)(2) of the Arkansas Rules of Civil Procedure, and his motion to require recusal to the attention of the trial court. We are not provided with any authority suggesting that appellant had a right to an interlocutory appeal from the master’s denial of his objection to the report and request for the master’s recusal.

We have previously addressed the use of ex parte communications by a master in the case of Pierce v. Hyde, 37 Ark. 308 (1881), which concerned the appointment of a master in chancery to divide the proceeds of a newspaper partnership. We held that the master acted without evidence, but was governed instead by his own experience in newspaper management, noting that a master should not act upon his knowledge, or upon his best judgment, derived from conversation with others. In deciding upon facts, a master’s position is analogous to that of a jury, and the evidence upon which he reaches conclusions should be properly taken on oath, and returned with the report, to be examined by the court. Values of work and of material should be proved as other facts, and not collected by the master from his own experience, or from the price lists of the times, or from consultations with others. This would be dangerous, in the first instance, and preclude a party injured from the proper mode of correction. Id. at 314.

We next addressed this issue in 1953 in Arkansas Game and Fish Commission v. Kizer, 222 Ark. 673, 262 S.W.2d 265 (1953), which dealt with the distinction between special masters and expert witnesses. We held that a master not only reports his findings to the chancellor but also submits a transcript of the evidence taken, so that the court may determine whether the findings are supported by the testimony. For this reason a master in chancery cannot base his conclusions upon evidence not in the record. Id. at 676, 266.

The trial court is charged with the burden of instructing masters it appoints as to their duties and responsibilities when it selects non-lawyer masters, and it was reversible error for the trial court to have accepted the master’s report in this matter. Because of the master’s reliance upon ex parte communications, he must be relieved of responsibility for further conduct of this assignment. We therefore reverse the trial court’s denial of appellant’s motion to discharge the master and strike his report. Because appellant’s other points on appeal relate to the master’s report and the trial court’s reliance thereon, we do not address these points in this appeal. We remand for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    Kathryn BEWLEY v. PYRAMID LEASING COMPANY, Inc.
    98-1340
    980 S.W.2d 556
    Supreme Court of Arkansas
    Opinion delivered December 10, 1998

      Sanford & Stiritz, by: Jon R. Sanford, for appellant.

      Peel & Simmons P.A., by: John R. Peel, for appellee.
   Per Curiam.

The appellant, Kathryn Bewley, filed a motion for a belated appeal from an order of the Pope County Circuit Court. The following time line outlines the relevant action in the trial court:

1. July 13, 1998 —Judgment entered in trial court
2. July 17, 1998 — Motion for New Trial filed by appellant
3. August 5, 1998 — Motion for New Trial heard and orally denied
4. August 7, 1998 — Notice of Appeal filed by appellant
5. August 17, 1998 — Motion for New Trial deemed denied
6. August 18, 1998 — Order denying Motion for New Trial filed

Arkansas Rule of Appellate Procedure — Civil 4(d) (1998) provides that a party desiring to appeal a judgment must file a notice of appeal within thirty days from (1) the entry (filing) of the order disposing of the motion, or (2) the date on which the motion is deemed denied pursuant to Ark. R. App. P. — Civ. 4(c). According to Rule 4(c), the instant appellant extended the time for filing a notice of appeal when she filed her motion for new trial on July 17th. The appellee, Pyramid Leasing Company, Inc., correctly points out that the appellant’s August 7th notice of appeal is untimely because it was filed prior to August 17th, the day on which the motion for new trial was deemed denied. Consistent with our rules of procedure and our decision in Lawrence Bros., Inc. v. R.J. “Bob” Jones Excavating Contractor, Inc., 318 Ark. 328, 884 S.W.2d 620 (1994) (per curiam), we deny the appellant’s motion for belated appeal.


text:
    Shane PACK v. STATE of Arkansas
    CR 98-1358
    983 S.W.2d 125
    Supreme Court of Arkansas
    Opinion delivered December 10, 1998

      Clarence W. Cash, for appellant.
    No response.
   Per Curiam.

Shane Pack, by his attorney, Clarence W. Cash, has filed two motions for belated appeal, which are, in reality, motions for rule on the clerk.

The first motion admits that the record was not timely filed from counsel’s notice of appeal and that this was error. The second motion asks that the first motion be set aside because a second notice of appeal was filed by the public defender, and the record would be timely if calculated from that date. Mr. Cash contends that only the public defender was counsel of record when the two notices of appeal were filed.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his or her part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney’s second motion does not admit fault on his part. Rather, he argues that he was not counsel of record when he filed his notice of appeal and that the subsequent notice of appeal filed by the public defender as counsel of record was timely. We disagree. Mr. Cash filed the first notice of appeal as counsel for the appellant and that notice of appeal governs. The record was, therefore, untimely, and appellant’s motion must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

The present motions for rule on the clerk are denied.


text:
    Drew Malone RAINES III v. STATE of Arkansas
    CR 98-945
    980 S.W.2d 269
    Supreme Court of Arkansas
    Opinion delivered December 10, 1998

      Petitioner, pro se.
    No response.
   Per Curiam.

Petitioner Drew Malone Raines III, appearing pro se, seeks by petition for writ of mandamus to compel Pulaski County Circuit Judge John W. Langston not to take any further action during the pendency of his appeal from the trial court’s order, which denied his motion to dismiss for lack of jurisdiction. Petitioner further seeks to “purge” the circuit court’s actions on October 14 and 15, 1998, when it held a hearing and affirmed the municipal court’s judgment.

Petitioner was convicted by the Sherwood Municipal Court on April 1, 1998, of using an unofficial license plate and of driving without his driver’s license and several other documents required by Arkansas law: the motor vehicle registration and proof of insurance and vehicle inspection. The conviction was appealed to the Pulaski County Circuit Court. On June 11, 1998, petitioner filed a motion to dismiss challenging the trial court’s jurisdiction. After a hearing on June 12, 1998, the trial court denied petitioner’s motion to dismiss and set the case for trial on July 29, 1998. Petitioner then filed a notice of appeal on July 28, 1998, which purported to appeal from the order denying his motion to dismiss. Petitioner appeared on the trial date, July 29, 1998, and requested a continuance. The trial court granted the continuance and rescheduled the trial for October 14, 1998. The petitioner then filed the record in this court on August 3, 1998. The record of proceedings in the trial court was certified as of July 30, 1998.

Petitioner filed the petition for writ of mandamus in this court on October 26, 1998, and alleges that, notwithstanding the docketing of the appeal in this court on August 3, 1998, the trial court continued to exercise jurisdiction by proceeding with the trial on October 14, 1998 and by entering an order affirming the municipal judgment on October 15, 1998. In support of these allegations in his petition, petitioner attached thereto a copy of the trial court’s docket sheet that shows a stamped entry on October 14, 1998 with the words “[Tjower court judgment affirmed, remanded for execution,’’and a copy of the order entered by the trial court on October 15, 1998, whereby the appeal was dismissed and remanded to Sherwood Municipal Court.

In support of his petition for writ of mandamus, petitioner relies upon our holding in Richie v. State, 298 Ark. 358, 767 S.W.2d 522 (1989), that the trial court loses jurisdiction after a notice of appeal is docketed and the record is filed in this court. Petitioner characterizes his petition as one for mandamus. However, a writ of mandamus is issued by this court only to compel an official or judge to take some action. See Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998). In contrast, a writ of prohibition is issued by this court to prevent or prohibit the lower court from acting wholly without jurisdiction. See Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1988). Even if we were to consider the petitioner’s petition as one for prohibition, the writ would be inappropriate in this case because the action to be prevented has already occurred. Once a court has acted allegedly beyond its jurisdiction, the only way to challenge the conviction is to timely and properly file an appeal pursuant to the Arkansas Rules of Appellate Procedure — Criminal. The record in this case does not include a notice of appeal from the circuit court’s October 15 order affirming his conviction in the municipal court.

Likewise, petitioner’s request for us to “purge” the circuit court’s actions taken on October 14 and 15, 1998, is really a request for us to reverse his conviction due to the circuit court’s lack of jurisdiction. Again, such a request can only be granted in this case upon the proper and timely filing of a notice of appeal.

For these reasons, the petition is denied.


text:
    Cecil POYNER v. ARKANSAS CONTRACTORS LICENSING BOARD Bruce Earl Ward v. State of Arkansas
    98-952
    CR 98-657
    985 S.W.2d 297
    Supreme Court of Arkansas
    Opinion delivered December 11, 1998

      Lyon, Emerson & Cone, for appellant Cecil Poyner.
    No response.

      Deborah R. Sailings, for appellant Bruce Earl Ward.
    No response.
   Per Curiam.

The procedural background in this matter is set forth in our per curiam orders issued on November 19, 1998. Poyner v. Arkansas Contractors Licensing Bd., 335 Ark. 260, 979 S.W.2d 902 (1998); Ward v. State, 335 Ark. 265, 979 S.W.2d 902 (1998). Ms. Lené Collins-Sontag, substitute court reporter for the Third and Seventh Divisions of Pulaski County Circuit Court, was cited to appear before this court on December 10, 1998, at 9:00 a.m. to show cause why she should not be held in contempt of this court for her failure to comply in a timely manner with the command of the writs of certiorari issued on September 10, 1998, and September 17, 1998. Id. Ms. Collins-Sontag did not appear.

Because Ms. Collins-Sontag failed to appear before this court on December 10, 1998, as ordered by the per curiam orders issued on November 19, 1998, we hereby order the State Police to take immediate custody of Ms. Collins-Sontag and deliver her to the Pulaski County Detention Facility, where she shall be held until such time as her appearance can be scheduled before this court.


text:
    STATE of Arkansas v. Robert A. ROBBINS
    CR 98-1394
    985 S.W.2d 293
    Supreme Court of Arkansas
    Opinion delivered December 11, 1998

      Winston Bryant, Att’y Gen., by: Todd L. Newton, Ass’t Att’y Gen., and Kelly K. Hill, Deputy Att’y Gen., for petitioner.

      Val P. Price, for respondent.
   Per Curiam.

On June 17, 1998, a Craighead County jury convicted Mr. Robbins of capital murder and sentenced him to death. On July 9, 1998, Mr. Val P. Price, standby counsel for Mr. Robbins, filed a notice of appeal. Both prior to the trial and during the trial, Mr. Robbins argued that he be sentenced to death and informed the court of his intention to waive all rights of appeal. On August 24, 1998, the State filed a Motion for Court to Inquire of Defendant to determine whether Mr. Robbins desired to waive his rights of appeal. The trial judge held a hearing on August 28, 1998, and by order entered on October 19, 1998, granted Mr. Robbins’s request to waive his right to appeal the capital murder conviction and sentence. Mr. Robbins is currently scheduled to be executed on December 15, 1998. Pursuant to our decision in Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), the State now submits to this court a transcript of the lower court’s proceedings along with its petition for writ of certiorari, and requests that we review those proceedings in accordance with the rule established in the Franz case. Mr. Val P. Price, Mr. Roger Ray and Ms. Kimberly Boling Bibb, as standby counsel for Mr. Robbins, have filed a response to the State’s petition for writ of certiorari. We grant the State’s petition for writ of certiorari.

In Franz v. State, supra, this court set forth the procedure to be followed when a defendant elects to waive his rights to appeal a death sentence:

In future cases, when a lower court has made a determination that a capital defendant can make a knowing and intelligent waiver of appeal, and has done so, the State has the burden of bringing the record of the lower court proceeding on this issue to this Court for review. The record on this issue should, if possible, be lodged in this Court after the time for appeal has lapsed, but, in any event, it must be lodged at least seven days before the execution date. We will then review the proceeding to determine whether the defendant had the capacity to understand the choice between life and death and to knowingly and intelligently waive his rights to appeal his sentence of death. The standard of review, as in other types of criminal cases, is whether the trial judge’s conclusion is clearly erroneous.

296 Ark. at 189-90, 754 S.W.2d at 844. We recently reiterated this procedure in Riggs v. Humphrey, 334 Ark. 231, 972 S.W.2d 946 (1998). The State has complied with these procedural requirements.

The trial judge in this case conducted the hearing mandated by our holding in Franz, supra, and found that Mr. Robbins does have the capacity to understand the choice between life and death, as well as the capacity to knowingly and intelligently waive any and all rights to appeal his conviction and sentence. Before making this finding, the trial judge conducted his own inquiry of Mr. Robbins and reviewed three joint exhibits: the March 18, 1998 psychological evaluation by Michael J. Simon, Ph.D., Supervising Forensic Psychologist, Arkansas Department of Human Services, Division of Mental Health Services; the June 19, 1998 order allowing waiver of counsel and invocation of constitutional right to proceed pro se; and a copy of the transcript of the competency hearing held on June 5, 1998. The trial court also had the benefit of representations by Mr. Robbins’s standby counsel, Mr. Val P. Price, that he had advised Mr. Robbins fully of the consequences of a waiver of his rights of appeal.

With regard to Dr. Simon’s psychological evaluation report dated March 18, 1998, it is based on a clinical interview and psychosocial history/assessment and on various psychological tests, including the M.M.P.I., the Competency to Stand Trial Assessment instrument, and the International Personality Disorder Examination. According to Dr. Simon’s report and his testimony at the competency hearing on June 5, 1998, Mr. Robbins: (1) was aware of the nature of the charges and the proceedings taken against him, (2) did not lack the capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law at the time of the alleged offense, and (3) does not suffer from a mental disease or defect which would render him incompetent to elect execution. With regard to this last conclusion, Dr. Simon found that Mr. Robbins’s intelligence was at least average, and that Mr. Robbins had no mental disorder at Axis I, although he did have a borderline personality disorder and a narcissistic personality disorder at Axis II. According to Dr. Simon, the decision to waive fife and elect death is a decision that can be made by a sane person. Because Dr. Simon ruled out any kind of major mental illness in Mr. Robbins’s case, he concluded that Mr. Robbins was competent to choose between life and death. At the June 5 competency hearing, Mr. Robbins testified unequivocally that he wanted his attorney, Mr. Price, to help him get the death penalty.

Based upon the evidence submitted at the competency hearing, the trial court found that Mr. Robbins was competent to stand trial and that he was able to assist his attorneys in the defense of his case. On June 15, 1998, Mr. Robbins invoked his constitutional right to proceed without counsel, pro se, and executed a written waiver of his constitutional right to counsel. The trial court entered an order that: (1) allowed Mr. Robbins to proceed without counsel, pro se; (2) relieved the court-appointed attorneys from representing Mr. Robbins; and (3) appointed Mr. Robbins’s former attorneys as standby counsel, with specific instructions as to their duties in that role. This order enumerates an exhaustive list of findings made by the trial court before it granted Mr. Robbins’s request to waive his right to counsel and to proceed pro se. According to these findings, Mr. Robbins was advised repeatedly by the trial court and his court-appointed attorneys not to represent himself in a capital murder case where the death penalty is a sentence option. However, Mr. Robbins advised the court that he wanted to waive counsel because of his concern that his court-appointed attorneys would not seek a sentence of death. The trial court also referred to the earlier competency hearing, Dr. Simon’s forensic psychological evaluation report, and it’s own previous finding that Mr. Robbins was competent to stand trial. Finally, the trial court found that Mr. Robbins made a knowing and intelligent waiver of his right to counsel and that his waiver of counsel was unequivocal.

The trial court’s inquiry of Mr. Robbins at the August 28 hearing was thorough and extensive, and Mr. Robbins’s responses were unequivocal:

Q. Is it your desire and wishes that absolutely no action be taken by anyone to appeal this decision in your behalf?
A. Yes.
Q. I want to hear you state for me in your own words exactly why it is that you do not want your case appealed?
A. The appeal courts are full of people who feel that they have been wronged by the justice system or something was overlooked or, you know, something was missed. Maybe for once I am a person that feels that what happened was the proper response to what I did. I know what crime I made and I feel that this is a suitable punishment and I see no reason why I should fight what is right.
Q. Have you thought about the execution, have you thought about what will take place and that your fife will be permanently and forever terminated by the procedure employed by the state, have you considered that and thought about it?
A. Yes, Sir.
Q. Have you discussed that eventuality with anyone?
A. With several people, yes.
Q. Tell me who you have talked to about it with?
A. I have talked with my parents about it and I have talked to my spiritual advisor about it. I have several friends who I correspond with who I have talked loosely about it with. Where I am being housed on death row I am surrounded by people who are facing the exact same thing and that is something that they all understand and sympathize with and can offer support and they understand it. I have been able to talk about this with people who have gone the way of the appeal and have been waiting for twenty years and the people who have been waiting seven years and then they finally realize that this is what they deserve and only after so much fighting they realize that they are fighting the wrong thing. I have talked to people about the actual methods of the execution of lethal injection and I talked to a man who was executed just a little over a month ago and I saw the proceedings up to his execution broadcast on television. I have made it my business to know about this execution and what is going to happen and what couldn’t happen and I feel like I have looked at it from every angle. I have nothing all day except think about this.
Q. Do you understand that you could spend all day long thinking and studying ways to avoid the death penalty by using the legal process to defend against execution?
A. I do. I also know that I could spend the rest of my life miserable for what I have done and never find the redemption that I need except in the death penalty.

After a careful review of the record and exhibits, we cannot say that the trial court was clearly erroneous when it found that Mr. Robbins has the capacity to choose between life and death and to knowingly and intelligently waive any and all rights to appeal the death sentence. We, therefore, affirm the trial court’s decision that Mr. Robbins has knowingly and intelligently waived his right to appeal. Accordingly, we direct that this court’s mandate be issued at the time this opinion is handed down.

The federal law, Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.S., et seq. (Supp. 1998), was enacted after our Franz decision, and it was passed so as to provide significant restrictions on the amount of time federal courts may take to review death-penalty cases, if the states comply with the requirements of the 1996 federal law. To obtain the benefits of this federal law, the Arkansas General Assembly enacted Act 925 of 1997 and this court adopted Rule 37.5 of the Arkansas Rules of Criminal Procedure. Under Rule 37.5, as applied in this case, this court’s opinion and mandate will issue immediately to the trial court, which now must conduct a hearing within twenty-one days of the date of the mandate. Id. Mr. Robbins must be present, and the trial court must inform him of the possible relief under Rule 37, and ask if he desires appointment of an attorney. Any waiver must be made on the record in open court. If Mr. Robbins continues to reject the appointment of counsel, and the trial court determines that he understands the legal consequences of his decision, the court shall then issue written findings to that effect and enter a written order declining to appoint an attorney to represent him. Id. The trial court must issue its findings within seven days after the hearing and, within five days of entering the findings, shall return the court’s transcript and findings to this court for final review.

       We find no merit in the request by standby counsel that we reverse Mr. Robbins’s death sentence, remand for a new sentencing hearing, and order that another attorney be appointed to represent the public interest. The procedure in this case is controlled by our holding in Franz.

       Obviously, if Mr. Robbins has a change of mind and decides to seek relief from his death sentence, other Rule 37 provisions apply and are set out in Rule 37.5(b), et seq.