text:
    ST. PAUL FIRE & MARINE INS. CO., and Comprehensive Care Corp. v. Marie KNIGHT, as Parent and Natural Guardian of Keith Knight, a Minor
    88-122
    764 S.W.2d 601
    Supreme Court of Arkansas
    Opinion delivered February 6, 1989

      Friday, Eldredge & Clark, by:.Laura A. Hensley, for appellant St. Paul Fire and Marine Insurance Co.

      Atchley, Russell, Waldrop & Hlavinka, by: Victor Hlavinka; Greines, Martin, Stein & Richland, by: Alan G. Martin and Paul M. DeMarco, for appellant Comprehensive Care Corp.

      Lovell, Arnold & Nalley, for appellee.
   John I. Purtle, Justice.

This is an appeal from a verdict and judgment in the Saline County Circuit Court against the appellants and Roger Sample on a claim for negligently retaining an employee who allegedly was disposed to molest adolescent males by force or threat. The defendant, Roger Sample, did not appear at the trial and defend the action nor does he appeal from the judgments for compensatory damages entered jointly and severally against all three defendants in the sum of $400,000, nor from the judgments against Sample only for $250,000 each to the appellees for punitive damages. For their appeal the appellants argue that there is no substantial evidence to support the verdict and that the verdict against them is excessive. We agree that the appellees failed to present substantial evidence to meet their burden of proof as set out in instructions 8 and 9 given to the jury. Therefore, the judgment against the appellants is reversed and dismissed.

The complaint against St. Paul Fire and Marine Insurance Company (insurance carrier for the Arkansas Children’s Hospital), Comprehensive Care Corporation and Roger Sample, alleged a joint venture between Arkansas Children’s Hospital and Comprehensive Care Corporation in the project known as the Adolescent Stress Center. A direct action was allowed against St. Paul because ACH is a charitable institution. The complaint alleged that Sample committed two separate sexual assaults on Keith Knight while acting within the scope of his employment and that the appellants were negligent in hiring, supervising, and retaining Mr. Sample as an employee and in failing to warn the appellees of Sample’s dangerous propensities. The only theory that went to the jury was that ACH was negligent in not terminating Sample and that Comprehensive Care was negligent in failing to take steps to secure his termination.

At the heart of the issues to be decided on this appeal are instructions number 8 and 9. Number 8 (not based on any model instruction) instructed the jury that the appellants could only be found liable for negligently retaining Robert Sample as an employee if they found: that pursuant to his employment Roger Sample had a right to be where he was when the wrongful act allegedly occurred; that the meeting between Keith Knight and Sample was a direct result of the employment; and that the appellants would have received some benefit from the meeting between Sample and Knight had the wrongful act not occurred.

Instruction number 9 (roughly based on AMI 203) included some overlapping of instruction number 8 among its five essential propositions. The first and second elements required a finding that Sample was disposed to molest adolescent males by force or threat and that the appellant knew or should have known of his disposition to do so. The third element of instruction number 9 required a finding that ACH was negligent in not terminating Roger Sample and that Comprehensive Care was negligent in failing to take steps to secure the termination. The fifth element was a charge that required a decision that the harm to Keith Knight was proximately caused by the negligence of the appellants. The instruction had the usual concluding paragraph requiring that each of these five propositions must be proven before a verdict could be returned in favor of the appellee. No objection was made to these instructions.

At the time Keith Knight was admitted to the Stress Center in June, 1986, Roger Sample was employed as a psychiatric technician by ACH and was assigned to the Stress Center. Upon the admission of Keith, Roger Sample was assigned as his co-case worker. Sample worked the 3:00 p.m. until 11:00 p.m. shift at the center. Basically, Sample served as a supervisor and tutor for Knight while he was in the Stress Center. Although the schools where the students were enrolled continued to make assignments, the Stress Center followed through to see that those assigned to the center kept up with their regular school studies. Occasionally the case workers and other personnel from the Stress Center went with the residents of the Stress Center to the Arkansas Arts Center, to movies, and sometimes to a bowling alley.

During the time Knight and Sample were associated at the center they did a considerable amount of wrestling. According to Knight they usually wrestled every day. Most of the other boys wrestled with Sample or other case workers. The only complaint Knight ever made was that Sample was getting a little rough in the wrestling. It was admitted that during the wrestling Sample sometimes placed his hand or arm on the genitals of the young boys and sometimes slapped them on the buttocks. Keith Knight stated he did not feel that he was being sexually molested by Sample, even though they were sometimes in Knight’s room together at night.

The young man was at the institution for about five and a half weeks. He was discharged because he would not follow the program. In his words, “I would not cooperate.” He stated he supposed he was just hardheaded at the time, and that “[b]y the time I had completed my stay, I thought Roger was one of my real friends.” Sometime after Knight had been discharged from the center, it was revealed that some persons had observed what they thought to be improper conduct by Sample, such as placing his hands on the genitals of the boys when they wrestled, or patting them on the buttocks. Some also stated that he sometimes sang dirty songs and on at least one occasion remarked that Keith had a “big one.”

At the time Knight was discharged and he and his mother started to the door of the Children’s Hospital, Sample approached and talked to them. No other employee of ACH, Comprehensive Care or the Stress Center was present at that time. Sample walked them to the door and commenced explaining the “big brother program” to Keith and his mother. The net result was that Sample gave Knight his home telephone number on a card and said, “Call me when you get home.” (He specifically requested the call be made after work.) Sample called the young man that night at home to see how he was getting along. He told Keith Knight that he was going on a two week vacation but, that when he returned, he would call him and they would go on an outing. It was the young man’s understanding that the “big brother” care Sample was offering him was a part of the “after care program” at the Stress Center. However, Keith stated that he understood that one could not attend this program unless he had completed the institutionalized program at the Stress Center, and that he had not completed the program.

On July 22, after Sample returned from his vacation, he arranged to take Keith shopping and to go to Wild River Country, a water theme amusement park. Admittedly Keith was anxious to go because he trusted Sample and thought he was one of his best friends. They first went to a store where Sample offered to buy Knight a bathing suit, but Knight refused. Sample then bought one for himself and invited Knight into the dressing booth to watch him try it on. The invitation was declined. After the visit to the store they returned to Sample’s home, where he pulled a gun on Knight and forced him to undress. Sample then performed oral sex on the adolescent. They subsequently went to Wild River Country and, after a fairly short visit, returned to Sample’s home where a similar incident occurred. Knight, sometime later, stated that Sample had threatened to kill his mother and brothers if he ever told what Sample had done.

After the incident was reported to SCAN, the young man was placed in Rivendale, a residential psychiatric treatment center, because he was a threat to his mother and to his brothers. He had become violent, beating his brother and his mother and punching holes in the wall. He said he did this because he was frustrated. He thought that he might be a homosexual because of what Sample had done to him. At any rate, his life was generally miserable, as was that of his mother and brothers, and he was forced to obtain further treatment at Rivendale. He was progressing well at the time of the trial and was hopeful that he was on his way to a complete recovery from the trauma of the incident.

The fact that Keith Knight and his mother thought he was in the “after care” program at the Stress Center is the basis upon which the suit was filed. However, he was not actually enrolled in the program. Keith himself stated: “I knew that the after care program was for those who graduated. I did not know I did not qualify for it. I knew I had to graduate to be in.” There is no evidence that the Stress Center, ACH or CCC had any knowledge or reason to know that the young man believed he was enrolled in their after care program at the time of the assault.

The appellants presented testimony to the effect that it was against the policy of the institutions and the program to allow contact with patients after the patient had been discharged. Testimony reveals that the institutions had no prior knowledge of the subsequent contact in this case.

The appellants make several arguments for reversal, but for the purposes of this opinion we treat only the matters of the sufficiency of the evidence and instructions 8 and 9. The complaint alleged that Sample had committed the assault on Knight while acting within the scope of his employment, and that the appellants had been negligent in hiring, supervising and retaining Sample as an employee and by failing to warn the appellees of Sample’s dangerous propensities. The instructions given to the jury presented only the issue of negligent failure to terminate.

Instruction number 8, given without objection, reads as follows:

You are advised that Arkansas Children’s Hospital and Comprehensive Care Corporation can only be found liable for negligently retaining Roger Sample as an employee if you find the following to be true.
First, that pursuant to his employment, Roger Sample had a right to be where he was when the wrongful act allegedly occurred;
Second, that the meeting between Keith Knight and Roger Sample, at which time the wrongful act allegedly occurred, was a direct result of the employment; and
Third, that Arkansas Children’s Hospital and Comprehensive Care Corporation would have received some benefit from the meeting between Roger Sample and Keith Knight had the wrongful act not occurred.

Instruction number 9, also given without objection, reads as follows:

Marie Knight, individually and as parent of Keith Knight, a minor, claims damages from St. Paul Fire and Marine Insurance Company and Comprehensive Care Corporation, and has the burden of proving each of five essential propositions.
First, that Roger Sample was disposed to molest adolescent males by force or threat;
Second, that Arkansas Children’s Hospital and Comprehensive Care Corporation knew or should have known of Roger Sample’s disposition to do so;
Third, that Arkansas Children’s Hospital was negligent in not terminating Roger Sample and that Comprehensive Care Corporation was negligent in failing to take steps to secure the termination of Roger Sample as an employee of Arkansas Children’s Hospital before Keith Knight was discharged;
Fourth, that Roger Sample caused harm to Keith Knight;
And Fifth, that the harm to Keith Knight was proximately caused by the negligence of Arkansas Children’s Hospital and/or Comprehensive Care Corporation.
If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for the plaintiffs against the party or parties found to be negligent; but if on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for the defendants.

The appellees’ case is premised upon the theory that Sample had a propensity to molest adolescent males and that the appellants knew or should have known that the employee was a danger to adolescents enrolled in the Stress Center. We do not find evidence in the record which would put the appellants on notice that the act which occurred was foreseeable.

We have not previously considered the negligent retention of an employee theory of liability. We therefore look to the treatment of this question in other jurisdictions.

In Abernathy v. United States, 773 F.2d 184 (8th Cir. 1985), the court held that actual threats of violence by a person with a history of violence were not sufficient in and of themselves to impose liability on an employer for future violence. The history of a person having committed crimes against property does not make a rape foreseeable. Kane v. Hartford Accident and Indemnity Company, 159 Cal. Rptr. 446 (1979). Physical aggression and obnoxious behavior by an employee does not require the employer to discern a propensity for violence. Dempsey v. Walso Bureau, Inc., 246 A.2d 418 (Penn. 1968). Even if every statement of fact by the appellees were conceded, there would still be no rational basis for requiring employers to foresee the threat of violence which occurred in this case. Employers cannot be required to possess clairvoyant powers to discern whether an employee should be retained.

Instruction number 8 advised the jury that before it could find the appellants liable for negligently retaining Sample as an employee it must find that Sample had a right, arising from his employment, to be where he was at the time the wrongful act occurred. Nothing in the record indicates that Sample’s employment required him to have this young man in his home. The second requirement of this instruction was that the meeting must have been a direct result of the employment. An example of an incident arising as the result of employment can be found in Boykin v. District of Columbia, 484 A.2d 560 (D.C. App. 1984), where a teacher assaulted a student during a private conference required by the school curriculum. The meeting in the present case was the result of the employment only in the minds of the appellee and his mother. Not only was Sample not authorized to meet with Knight at his home, he was specifically prohibited from doing so by his employment by ACH. Although the appellees may not have been aware of this, it was nevertheless a condition of his employment. The third required element was that the appellants would have received some benefit from the meeting between Sample and Knight. Obviously, no benefit resulted to the employer, and none would have resulted had the violent act not occurred.

The ninth instruction primarily charged the jury that, in order to find the appellants liable for negligently failing to terminate Sample or failing to take steps to secure his termination, they must find that Roger Sample was disposed to molest adolescent males and that the employer should have known of this propensity. The appellees argue that the hospital’s background check on Sample was very inadequate and that a proper investigation would have shown that he was not qualified for the position of psychiatric technician. There is no evidence that the hospital gained any information which would have led them to conclude that this employee might be predisposed to commit violent acts against anyone. See Williams v. Feather Sound, Inc., 386 So. 2d 1238 (Fla. App. 1980). The investigation conducted by the hospital revealed that Sample had received apprentice counselor’s credentials in the area of substance abuse from a community college in Michigan, that he had supervised a staff at the Pontiac Recreation Summer Playground Program, and that he also had received an honorable discharge from the Air Force. The investigation further revealed that, after he moved to Arkansas, he had completed a 500 hour work-study program at the McClellan Memorial Veterans Hospital and was enrolled as a student at the University of Arkansas at Little Rock when he applied for the position with ACH. He had no criminal record and no history of violent acts or sexual misconduct. It would take a vivid imagination to glean from this evidence any predisposition of appellant to molest adolescent males or commit sexual assault. See Strauss v. Hotel Continental Co., Inc., 610 S.W.2d 109 (Mo. App. 1980).

After the occurrence of the criminal episode upon which this action is founded, the hospital learned that Sample had been discharged from Rivendale for “physical violence.” The investígation revealed that as part of his duties he was attempting to put restraints on a teenager when the youth bit him. His violent act consisted of slapping the patient for biting him, in violation of Rivendale’s policy prohibiting the use of physical force on patients.

We have diligently searched the record and do not discern substantial evidence to support the verdict against the Arkansas Children’s Hospital and Comprehensive Care Corporation. The case is reversed and dismissed.

Reversed and dismissed.

Hickman, J., concurs.

Glaze, J., dissents.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Darrell PHILLIPS v. Dr. John McAULEY
    88-197
    764 S.W.2d 424
    Supreme Court of Arkansas
    Opinion delivered February 6, 1989

      Evans & Evans, by: James E. Evans, Jr., and Susan A. Fox, and Curtis E. Hogue, for appellant.

      Friday, Eldredge, & Clark, by: Calvin J. Hall, for appellee.
   Tom Glaze, Justice.

This case involves a medical malpractice action against the appellee, Dr. John McAuley. The appellant, Darrell Phillips, was injured in a trucking accident near Clarksville and was transported to the Johnson County Regional Hospital emergency room where he was treated by Dr. McAuley. Phillips was treated for lacerations, the principal one being across the forehead. He also had chest and skull x-rays which were reviewed by Dr. McAuley and Dr. John W. King, a radiologist, who found the x-rays to be normal. Phillips was later discharged into the care of his personal physician.

Some six weeks after his discharge from the hospital, Phillips consulted another doctor who informed him that he had suffered a dislocation of the sixth and seventh cervical vertebrae in the neck. He subsequently filed suit alleging negligence against doctors McAuley, King, and the hospital, but before the date of trial, he voluntarily dismissed the hospital and Dr. King from the suit, leaving McAuley as the sole defendant. After a three day trial, the jury returned a verdict in favor of Dr. McAuley. Phillips’ sole assignment of error on appeal is that the trial court abused its-discretion in allowing Dr. King to testify as an expert witness when Dr. McAuley had failed to disclose King as a witness during pretrial discovery. We find no abuse of discretion, and therefore affirm.

Under the dictates of ARCP Rule 26(e)(2)(B), a party is under a duty to seasonably amend a prior response to discovery when he knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. We recently applied this rule in Dunlap v. Buchanan, 293 Ark. 179, 735 S.W.2d 705 (1987), where the trial court allowed the introduction of rebuttal evidence that had not been listed in pretrial discovery. At the close of Dunlap’s case-in-chief, Buchanan supplemented his response by notifying Dunlap and the court that he would seek to introduce medical records not listed in the original response. We held that the court did not abuse its discretion in admitting the evidence since Buchanan’s response was truthful when made and the need to change the response was the result of trial developments.

In the instant case, twelve months before trial, Dr. McAuley asked Phillips by interrogatory for a list of witnesses and their expected testimony. Phillips listed, among others, a Dr. Shealy and responded that Dr. Shealy might testify that “Dr. McAuley either failed to order x-rays, failed to have x-rays taken when he found out x-rays were not taken, had x-rays taken and failed to diagnose properly or in some manner he deviated drastically from accepted medical practice by failing to have x-rays taken of the neck region of Darrell W. Phillips.” Phillips, in turn, asked Dr. McAuley for a list of his witnesses and their expected testimony. Dr. King’s name was not listed on Dr. McAuley’s response.

On the second day of trial, during the morning session, Phillips’ counsel called Dr. Shealy to the stand, and asked him to review the chest x-ray taken of Phillips on the day of his accident. Shealy viewed this film in the presence of the jury and testified that he could see the sixth and seventh cervical vertebrae and that there was a visible abnormality present. He concluded that this abnormality would have raised his suspicion and would have suggested the need for a cervical x-ray, and that the failure to have taken a cervical x-ray amounted to medical malpractice. That afternoon, counsel for Dr. McAuley stated on the record, and as notice to Phillips’ counsel, that a subpoena was being issued for Dr. King to be in court the next day as a rebuttal witness. Phillips’ counsel objected on the grounds that King had never been listed or disclosed as a witness. The court, in overruling Phillips’ objection, noted that Dr. Shealy, by his own admission, had never seen the chest x-ray that served as the basis of his opinion testimony until five days before trial. Thus, the court determined that Dr. Shealy’s testimony concerning the chest x-ray was new and permitted King to testify as a rebuttal witness.

There was clearly no knowing concealment involved in this case. In addition to Dr. Shealy’s admission concerning when he. first viewed the chest x-ray, he had stated in his earlier deposition (before having seen the chest x-ray) that he had all the information he needed to formulate an opinion. He further stated that if he changed his opinion in any manner or formed new opinions, he would inform McAuley’s counsel in writing. At trial, when counsel for Dr. McAuley inquired as to why he was not informed of this new opinion beforehand, Phillips’ trial counsel said, “I’ll stipulate, judge, that I let him know today.”

Thus, Dr. McAuley’s need to supplement the response was, under the circumstances described, seasonably made and obviously a result of trial developments. Accordingly, Dr. Shealy’s testimony was a proper subject for rebuttal. Rebuttal testimony must rebut the testimony advanced by the other side and should not consist of testimony which might have been advanced as proof in chief. Wilkins v. El Dorado & Wesson R.R., 282 Ark. 236, 668 S.W.2d 6 (1984). Here, Dr. McAuley initially had no reason to offer Dr. King as a witness since the only importance of the chest x-rays to McAuley — at least until Dr. Shealy’s testimony— was that they had been taken soley to detect whether Phillips was suffering from any problems related to his heart. After Shealy’s revelation at trial, McAuley was clearly allowed to call Dr. King to counter Shealy’s testimony — which King did by testifying that there was no abnormality present on the film and that the purpose of a chest x-ray is not to view the neck region.

Because we find the trial court did not abuse its discretion in permitting Dr. King’s rebuttal testimony, we affirm.


author: Jack Holt, Jr., Chief Justice.

text:
    Stephanie BRADLEY v. Thomas Q. FRENCH II and Mildred French
    88-305
    764 S.W.2d 605
    Supreme Court of Arkansas
    Opinion delivered February 13, 1989

      Michael R. Davis, for appellant.

      Phil Stratton and Casey Jones, Ltd., by Phil Stratton; Laser, Sharp, Mayes, Wilson, Bujford & Watts, P.A., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Stephanie Bradley brought suit against appellees Thomas French and his mother Mildred French for the wrongful death of Ms. Bradley’s daughter Nicole. She alleged that a vehicle driven by Thomas French, who was intoxicated, collided with a car driven by Nicole, causing her death. Suit against Mildred French was based upon the theory of negligent entrustment. The trial court granted summary judgment on behalf of Ms. French pursuant to Ark. Code Ann. § 27-14-911 (1987). From that order comes this appeal. We dismiss the appeal because the order appealed from did not comply with ARCP Rule 54(b).

Rule 54(b) provides that when multiple parties are involved, the court may direct the entry of final judgment as to one or more but fewer than all of the parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Here, the order appealed from had no such determination or direction, and as far as can be discerned from the record, Thomas French remains a defendant. See Widmer v. Touhey, 297 Ark. 85, 759 S.W.2d 562 (1988); King v. Little Rock School District, 296 Ark. 552, 758 S.W.2d 708 (1988).

As the order appealed from did not comply with the requirements of the rule, it is not an appealable one. We are obliged to raise the point because it is a jurisdictional requirement. Widmer, supra.

Appeal dismissed.


author: John I. Purtle, Justice.

text:
    Darrell Allen WILSON v. STATE of Arkansas
    CR 88-139
    765 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered February 13, 1989

      Gresham A. Phillips, for appellant.

      Steve Clark, Att’y Gen., by: Jeannette Denhammcclendon, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

A jury found the appellant guilty of the crimes of rape, kidnapping, and first degree battery. He was sentenced to consecutive terms of life, forty years, and twenty years. On appeal he argues that: (1) the court erred in failing to suppress the evidence of a pistol and a blue jean jacket; (2) the court erred in not ordering a full psychiatric examination at the Arkansas State Hospital or providing the appellant with funds to obtain an independent psychiatric examination; and (3) the court erred in not granting defendant’s motion for a continuance. Finding no prejudicial error, we affirm the action taken by the trial court.

On December 5,1987, a gunman entered a grocery store on Highway 5 in Garland County, Arkansas, and demanded and took money from the cash register. He forced the store operator into his car and then drove her to a wooded area in Saline County. There the victim was raped, choked unconscious, and then shot.

During the investigation, it was learned that the appellant spent the night with his friend, James Bishop, and the next morning left his blue jean jacket behind. After the appellant was gone, Bishop picked the jacket up and a Baretta pistol fell to the floor. Fearing involvement in some kind of trouble, Bishop took the jacket and pistol to a vacant lot across the street from his residence and buried them underneath some leaves. He later gave a statement to the police and led them to the scene. The leaves were raked back, and the police found the jacket with the pistol either inside or underneath it. The statement on the application for the arrest warrant indicated that the pistol had been found in the jacket pocket. However, officers later testified that it was found either underneath or wrapped inside the jacket. Appellant’s motion to suppress this evidence as being violative of the Fourth and Fourteenth Amendments was overruled, and the pistol and jacket were entered into evidence. The trial court held that the appellant had no reasonable expectation of privacy in the gun and the jacket under the circumstances of this case.

The appellant first argues that the seizure of the jacket and gun was in violation of the Fourth Amendment restriction against unreasonable searches and seizures. The baseline of the appellant’s argument on this point is that while the police may have had the right to make a warrantless seizure of the jacket, they could not have searched the pockets without a search warrant.

The issue to be determined by this court is whether the trial court correctly admitted this evidence. The defendant’s right to challenge the search and seizure as being violative of the Fourth Amendment is based upon the existence of a legitimate expectation of privacy in the place invaded. United States v. Freire, 710 F.2d 1515 (11th Cir. 1983), citing Rakas v. Illinois, 439 U.S. 128 (1978).

Both sides rely upon the case of United States v. Alewelt, 532 F.2d 1165 (7th Cir. 1976). Alewelt left an incriminating brown leather jacket “on a coatrack in the general working area of an outer office where he had no possessory interest.” The Seventh Circuit affirmed the holding of the district court that, by leaving the jacket where he did, the appellant “relinquished that degree of control, and reasonáble expectation of privacy, necessary to sustain a challenge to the legality of the subsequent search and seizure on Fourth Amendment grounds.” The opinion further stated that “while he may not have known that after business hours the door to the office would be left open and the lights left on, he had no reason to expect otherwise.” The court also relied upon Katz v. United States, 389 U.S. 347 (1967), where it was held that a person who knowingly exposes an object to the public cannot expect the protection from unreasonable search and seizure provided by the Fourth Amendment.

This court considered a situation somewhat analogous to the one before us in the case of State v. Tucker, 268 Ark. 427, 597 S.W.2d 584 (1980). In Tucker the accused had moved out of an apartment he shared with the victim of an alleged murder. A search of these premises was conducted and the question presented was whether the evidence received in searching the apartment should have been suppressed. This court, quoting U.S. v. Colbert, 474 F.2d 174 (5th Cir. 1973), stated:

The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.

We held that Tucker’s conduct belied his statements that he did not intend to abandon the property.

Another decision a little closer to the facts in this case is Upton v. State, 254 Ark. 664, 497 S.W.2d 696 (1973). Upton was suspected of committing a crime with a weapon. He had fled from his father’s house, where he was residing. Police officers appeared at the house and requested the father to show them the weapons on the premises. In the initial search they observed a 12-gauge shotgun and a 410-gauge shotgun. After learning that the weapon used in the crime was a 16-gauge shotgun, the officers returned to the senior Upton’s home. The father again cooperated, went to a barn, and found a green blanket in which the guns were wrapped. The father was in possession and control of the house, and he voluntarily produced the weapons and relinquished possession of them to the officers. In upholding the trial judge’s decision in allowing the weapons to be introduced into evidence, we stated: “We perceive no invasion whatever of appellant’s right.”

In the case of Maxwell v. Stephens, 348 F.2d 325 (8th Cir. 1965), the Eighth Circuit Court of Appeals upheld the district court’s action in finding that the mother of the accused, with whom he lived at the time, did not violate or allow the officers to violate the appellant’s rights against unlawful search and seizure by leading the officers to a closet and pointing out a coat which the appellant owned. Maxwell argued that his coat was his personal effect; that it could not be obtained by the police without a search warrant or consent; and that it was evidentiary material not properly the subject of a search. Disposing of this argument, the court stated: “This argument overlooks the consent of the officers’ acquisition of the coat by a person having the proprietary interest in the premises where it was [found].” The opinion further stated that the coat was an item which had freely come into the possession of the party and that the coat had been given to the officers by one who had the right to make it available to them.

The facts in this case reveal that there was actually no search but only a seizure. The same rules apply to a seizure as to a search. We do not find it necessary to decide whether the pistol was in the pocket or wrapped in the jacket when it was seized by the police. It may well be true that the gun was left in Bishop’s home in the pocket of the jacket and that upon Bishop’s examining the jacket the gun fell to the floor. It is known that Bishop took the gun and the jacket across the street and covered them with leaves. There is no evidence that the appellant made any attempt to recover or retrieve these items. Obviously he had renounced or abandoned his rights to privacy and no longer had any reasonable expectation of privacy in the property. It has not been suggested by anyone that the owner of the property where the jacket and pistol were found expected the articles to remain undiscovered. Therefore, we hold that the trial court’s ruling was not clearly against the preponderance of the evidence. See also State v. Osborne, 263 Ark. 554, 566 S.W.2d 139 (1978).

The appellant’s second argument is that the trial court erred in failing to grant him a full psychiatric examination or the funds with which to obtain such an examination. In disposing of this motion for extensive psychiatric examination, the trial court noted that the appellant had been examined by a licensed psychological examiner and a psychiatrist, both employed by the Mental Health Department for the state of Arkansas. Nothing in either of the examiner’s reports indicated the appellant was psychotic or that he needed further consultation or diagnostic treatment. We disposed of this issue in Dunn v. State, 291 Ark. 131, 722 S.W.2d 595 (1987). Dunn distinguished Ake v. Oklahoma, 470 U.S. 68 (1985), and held that in the absence of some evidence that additional examination was needed, there was no necessity of obtaining further evaluation. See also See v. State, 296 Ark. 498, 757 S.W.2d 947 (1988); and Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).

The third and final argument is that the court erred in failing to grant the appellant a continuance. This request was based upon the fact that the victim was present to testify and that she was obviously in pain and discomfort and communicated this fact to the jury and to the court by means of body language and groans and grunts. The basic rule on this issue is that the decision to grant a continuance is within the discretion of the trial court and will not be reversed unless there is a showing of abuse. Parker v. State, supra. The appellant does not cite precedent for this motion and we are unable to find any of record.

One accused of a crime cannot select the terms and circumstances of his trial. The mere fact that a victim of an assault still obviously suffers from the attack or conveys the message otherwise is no grounds for granting a continuance. The victim did not completely distract the jury to the point where a fair trial would have proved impossible. Considering the facts as presented in this case, we are unable to hold that the trial court abused its discretion in continuing with the trial at the time.

Affirmed.


author: Robert H. Dudley, Justice. John I. Purtle, Justice, Jack Holt, Jr., Chief Justice,

text:
    Winston Van HARRIS v. STATE of Arkansas
    CR 88-107
    764 S.W.2d 606
    Supreme Court of Arkansas
    Opinion delivered February 13, 1989

      Hartenstein, Taylor & Montgomery, by: Ray Hartenstein, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

On April 26, 1978, the appellant and three codefendants, members of a religious cult, were charged with the first degree murder of a three-year-old girl. They testified that they killed the child because they believed her to be an anathema to the cult.

On September 12, 1978, appellant’s trial-in-chief began. After two of the State’s witnesses had testified, the prosecutor and appellant’s attorney reached a plea bargain. Under it, the State would amend the information to include the firearm enhancement statute, Ark. Stat. Ann. § 41-1004 (Repl. 1977),- [presently Ark. Code Ann. § 5-4-505 (1987)] and the appellant would change his plea to guilty. In exchange for his plea, he would receive fifty years for the first degree murder charge and 15 years for the firearm enhancement charge. The appellant subsequently pleaded guilty.

On September 10, 1981, the appellant filed this post-conviction proceeding alleging, among other things, failure of the trial court to comply with A.R.Cr.P. Rule 24.4 for the firearm enhancement statute. For some unexplained reason the petition was not heard until July 13, 1987, almost six years after it was filed, and then the trial court’s written opinion was not entered until February 3,1988. The trial court denied relief. We reverse and remand.

Rule 24.4 requires that, before a guilty plea is accepted, the trial court address the accused personally and inform him of: (a) the nature of the charge and determine that he understands it, (b) the mandatory minimum sentence of the charge, if any, (c) the maximum sentence, (d) the effect prior convictions or additional charges could have on the sentence, and (e) that by pleading guilty, or nolo contendere, the accused waives the right to a jury trial and to be confronted with the witnesses against him, except where the death penalty is sought.

We have held, and continue to hold, that compliance with Rule 24 is mandatory. Reed v. State, 276 Ark. 318, 635 S.W.2d 472 (1982); Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). In Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977), we held that substantial compliance was sufficient. In that case, subsection (a) was complied with as the informations were read to the accused, the deputy prosecutor stated the details of the crimes, and, at the post-conviction hearing, the appellant stated he knew the nature of the charges. He was aware of subsections (b) and (c), the potential sentences. Subsection (d), prior convictions, was not applicable. He understood subsection (e), that he was waiving the right to a jury trial.

Here, there was no such substantial compliance with regard to the firearm enhancement charge. The trial court did not comply with subsection (a) and apprise appellant of the nature of the firearm charge or what the State would have to prove to convict him of that charge. The trial court did not comply with subsection (b) and inform the appellant of the mandatory minimum sentence. Instead, the trial court only indicated that the maximum sentence was a mandatory sentence. With regard to subsection (e), the trial court did not advise the appellant that he had a right to defend separately on the firearm charge, or that he had a right to a jury trial or appeal from a guilty verdict on that charge.

The decision of the circuit court on the firearm enhancement conviction is reversed, and that part of the case is remanded so that that conviction may be set aside and appropriate proceedings had in accordance with Rule 37.4. The judgment of conviction for first degree murder is not affected by this opinion.

Reversed and remanded.

Holt, C.J., Hickman, and Purtle, JJ., concur in part and dissent in part.

John I. Purtle, Justice,

concurring. I concur in the result but would point out that the firearm enhancement statute does not apply when the primary charge includes the element of the use of a firearm. Additionally, if the appellant were tried on the firearm charge it must be proven that he personally used the firearm in the commission of the murder. See Arkansas Code Annotated § 16-90-120(c).

Jack Holt, Jr., Chief Justice,

concurring in part; dissenting in part. In reading Ark. Code Ann. § 16-90-120(c) (1987), I am convinced that enhancement of sentence may be used only against the defendant who actually employed the firearm. Further, I do not share the view of the majority that this enhancement statute creates a separate offense as to which we should “set aside the conviction.”

To the contrary, I find that the provisions of our criminal code which provide for enhancement of sentence is legislation which permits a jury or trial court, as the case may be, to subject a defendant to additional punishment if he is convicted of a felony in which he actually employed a firearm. For this reason, I would not set aside the conviction on the firearm enhancement, but merely remove the additional sentence placed on the defendant by the trial court because it was not supported by the facts.

Although in Cotton v. State, 256 Ark. 527, 508 S.W.2d 738 (1974), and Johnson v. State, 249 Ark. 208, 458 S.W.2d 409 (1970), we noted that a proceeding under the firearm enhancement statute requires additional and specific fact findings by the jury, these cases do not stand for the proposition that if a defendant pleads guilty to a felony which is subject to enhancement because of his utilization of a firearm that the trial court must treat the felony and the enhancement as two different crimes which require separate pleas of guilty, separate convictions, and separate inquiries by the court under Rules 24.4, 24.5, 24.6, and 25.3, of our Rules of Criminal Procedure.

I see nothing wrong with the trial court entertaining Harris’s plea of guilty to first degree murder subject to additional penalties under the firearm statute in the same proceeding as long as Harris was made aware that his plea of guilty would allow the trial court to assess certain additional penalties because of the utilization of a firearm during the murder.

In examining the record I find the following exchange between counsel, Harris, and the trial court sufficient to satisfy our present rules and due process.

MR. WILSON [Defense Attorney]: Your Honor, at this time, the defendant, Winston Van Harris desires to change his plea from not guilty to guilty on an arrangement to be proposed by the prosecuting attorney.
THE COURT: The Court understands that as a part of the agreement that has been reached between the state and the defendant’s attorney that the information will be amended.
MR. PATTERSON [Prosecutor]: With respect to this defendant.
THE COURT: Yes, with respect to this defendant. Would you please state your Amendment to the record.
MR. PATTERSON: The Amendment would be that Stephanie Alana Hall was killed and that it is enhanced by the fact that a firearm was used.
MR. WILSON: In violation of Arkansas Statute and [sic] Section 41-1004. And the Defendant stipulates that the Amendment should be granted.
THE COURT: The information will be amended to include the use of a firearm as to this defendant only. Now, Mr. Winston Van Harris, as you know there are present criminal charges against you in the Circuit Court of Newton County, Arkansas, and your attorney has indicated that you wish to make a plea to these charges. Before you make the plea, I want to make sure that you understand your rights the charges that are against you, and the penalties. You are charged with a felony, First Degree Murder, do you understand that?
WINSTON VAN HARRIS [Appellant]: Yes sir.
THE COURT: And, if you are convicted, you may be imprisoned in the penitentiary, do you understand that:
WINSTON VAN HARRIS: I do.
THE COURT: Do you understand that you have the right to plead not guilty and to be tried by a jury?
WINSTON VAN HARRIS: Yes sir.
* * *
THE COURT: Do you understand that if you plead not guilty, the State would have the burden of proving your guilt beyond a reasonable doubt?
WINSTON VAN HARRIS: Yes sir.
* * *
THE COURT: However, if you are guilty and desire to plead guilty, before accepting your plea and deciding what your sentence should be, I want to go over some additional things with you. As you said, you understand you are charged with First Degree Murder?
WINSTON VAN HARRIS: Yes sir.
THE COURT: Do you understand that the possible penalties provided by law on that charge are from five to fifty years or life and as the information is amended, an additional fifteen years for the use of a firearm, and/or up to a fifteen thousand dollar fine? [Emphasis added.]
WINSTON VAN HARRIS: Yes sir.
THE COURT: Do you understand that by pleading guilty you give up your right to appeal?
WINSTON VAN HARRIS: Yes sir.
THE COURT: Are you pleading guilty fully and voluntarily; have you been threatened in any way or promised anything in any way?
WINSTON VAN HARRIS: No sir.
THE COURT: Do you understand that your attorney and the Prosecuting Attorney have agreed to recommend a particular sentence to the court if you plead guilty?
WINSTON VAN HARRIS: Yes sir.
THE COURT: Do you understand that sentence to be a sentence forfifty years plus an additional fifteen years for the use of a firearm with the Arkansas Department of Corrections'? [Emphasis added.]
WINSTON VAN HARRIS: Yes sir, I do.
THE COURT: Do you accept this agreement?
WINSTON VAN HARRIS: Yes sir.
THE COURT: Have you discussed this case fully with your attorney?
WINSTON VAN HARRIS: Yes, sir.
THE COURT: Are you satisfied with his services?
WINSTON VAN HARRIS: Very much____
THE COURT: Would you tell me something about the facts in this case on which the Court can determine that you are guilty and could accept this plea.
MR. WILSON: Will you permit me, your Honor, to make a recitation. Essentially, the Defendant admits that he is guilty of complicity in the murder of Stephanie Hall, in that he participated in discussions of a religious character with the rest of the Defendants and with Suzette Freeman, the prosecuting witness which involved the revelation transmitted through Mark Harris that the child should be put to death. And Suzette provided an interpretation that that was in fact the truth. For the reason that the child had earlier been declared anathema. The child was led from the group by Royal Harris, who possessed a firearm that resulted in the murder. My client accompanied Royal to the woods where Royal Harris put the child to death. My client stood some distance away and observed that.
THE COURT: Is the statement by your attorney correct, Mr. Harris?
WINSTON VAN HARRIS: Yes sir.
THE COURT: Allright, based on your plea of guilty, the Court finds you to be guilty and accepts the recommendation of your attorney and of the State and sentences you to fifty years imprisonment with the Arkansas Department of Corrections for the crime of First Degree Murder and sentences you to an additional fifteen years for the use of a firearm.
* * *

Hickman, J., joins in this dissent.


author: Robert H. Dudley, Justice. John I. Purtle, Justice, Tom Glaze, Justice,

text:
    Mary C. JONES v. Arland ROBINSON, et al.
    88-312
    764 S.W.2d 610
    Supreme Court of Arkansas
    Opinion delivered February 13, 1989
    [Rehearing denied March 13, 1989.]

      Bill F. Jennings, for appellant.

      Ronnie A. Phillips and Thomas E. Sparks, for appellee.

      Purtle and Glaze, JJ., would grant rehearing.

   Robert H. Dudley, Justice.

Appellant, Mary C. Jones, filed a petition seeking a declaration of her right of survivorship in a checking account. Appellees asserted their rights to the funds in the account as beneficiaries and representatives of an estate. The trial court held that appellant had failed to establish that the account was held jointly with right of survivorship. The appeal is here on certification from the Court of Appeals. We affirm.

On October 2,1973, Avis Lindsey and her husband, Claude, opened a joint checking account with right of survivorship. On October 19,1974, Claude Lindsey died and Avis Lindsey became the sole owner of the account. On December 11, 1974, Avis Lindsey and her niece, appellant Mary Jones, went to the bank. Avis Lindsey had her niece sign the same account card which she and her husband had signed on October 2,1973. Appellant signed on the same line on which Claude Lindsey had signed; however, Avis Lindsey did not sign the card again. Her earlier executed signature remained on the card, and no other changes were made. The account card clearly designates that it establishes a joint account with right of survivorship.

On January 22, 1979, Avis Lindsey executed her will. Paragraph thirteen (13) of the will provides that after the payment of debts, expenses, and specific bequests of $1,000 to Stoney Point Cemetery and $200 to Shiloah Cemetery, two of the appellees in this case, the balance of funds in her checking account was to go to her great-niece, appellee Robin Garner. The checking account named in the will is the same account for which appellant Jones signed the account card.

The question presented is whether the actions taken by appellant and the decedent were sufficient to establish a joint checking account with right of survivorship. The answer is that they were not.

Ark. Stat. Ann. § 67-552 (Repl. 1980) was in effect at the time the account was originally established in 1973, and also when appellant Jones’s name was added in 1974. Consequently, it governs the outcome of this case. See Martin v. First Security Bank, 279 Ark. 273, 651 S.W.2d 70 (1983). That statute provides in pertinent part:

67-552. Accounts and certificates of deposit in two or more names. — Checking accounts . . . may be opened ... by any banking institution with the names of two (2) or more persons, either minor or adult, or a combination of minor and adult, and such checking accounts, . . .maybe held:
(a) If the person opening such account, . . . designates in writing to the banking institution that the account or the certificate of deposit is to be held in “joint tenancy” or in “joint tenancy with right of survivorship,” or that the account shall be payable to the survivor or survivors of the persons named in such account or certificate of deposit, then such account. . . and all additions thereto shall be the property of such persons as joint tenants with right of survivorship. . . . The opening of the account... in such form shall be conclusive evidence in any action or proceeding to which either the association or surviving party or parties is a party, of the intention of all of the parties to the account... to vest title to such account . . . and the additions thereto in such survivor or survivors.

We have often held, that there must be substantial compliance with the designation in writing requirement of the statute in order to create a joint tenancy with right of survivorship. Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969).

When Claude Lindsey died, Avis Lindsey became the sole owner of the account. In order for her to create a new joint tenancy with someone else, it would have been necessary for her to demonstrate that intention in compliance with § 67-552. Even though the account card clearly states that it establishes a joint account with right of survivorship, the only person who signed the card on December 11, 1974 was appellant Jones. The decedent, Avis Lindsey, did not. Her signature was essential at that time in order to create the new joint tenancy relationship. As we have said many times, a survivorship deposit is closely akin to a will. Requiring all of the formalities associated with the execution of a will is necessary to safeguard the will’s validity. Consequently, it is also necessary that there be substantial compliance with the requirements of Ark. Stat. Ann. § 67-552 (Repl. 1980) in order to safeguard the validity of survivorship accounts that were established while it was in effect.

Appellant cites the case of Penn v. Penn, 284 Ark. 562, 683 S.W.2d 930 (1985) in support of her position that it was not necessary for Avis Lindsey to re-sign the account card, nor for her to sign a new card in establishing the joint tenancy. Penn, however, is distinguishable from the facts of the instant case. In Penn, the issue before this Court was whether there was a sufficient designation in writing to comply with Ark. Stat. Ann. § 67-1838 (Repl. 1980) so that certificates of deposit belonged to the survivor, rather than to the estate of the decedent. Ark. Stat. Ann. § 67-1838 (Repl. 1980) contained a “designate in writing” requirement almost identical to that in Ark. Stat. Ann. § 67-552 (Repl. 1980). Guthrie Penn had purchased two (2) $30,000 CD’s from a savings and loan association. The CD’s were issued to Guthrie Penn or Patricia Penn, his daughter-in-law, and they both signed a signature card relative to each CD stating that the account was held in joint tenancy with right of survivorship. As the CD’s matured, Patricia Penn would surrender the old CD’s. New CD’s would be issued to Guthrie Penn or Patricia Penn to replace the matured CD’s. No new signature cards were signed. The existing signature cards were simply altered with a white substance obliterating the old numbers and dates with new numbers and dates typed in. Gutherie Penn did not come to the savings and loan office on the occasions when the CD’s were surrendered and reissued. We held there was substantial compliance with the designation in writing requirement.

The distinguishing feature of Penn is that both parties signed the account card at the time the tenancy relationship was established. That relationship never changed even though the CD’s matured and were surrendered and replaced through the years. In the instant case, the decedent signed the card at the time a joint tenancy relationship was established with Claude Lindsey; however, that joint tenancy relationship ended with his death. She never signed the card to establish a joint tenancy with appellant. Consequently, the designation in writing requirement of Ark. Stat. Ann. § 67-552 (Repl. 1980) was not met.

Although there was testimony that the decedent, Avis Lindsey, had intended for the funds in the checking account to go to appellant when she died, there was not substantial compliance with the statutory requirements to effectuate that intention. Accordingly, the funds in the checking account became a part of Avis Lindsey’s estate and must pass in accordance with the terms of her will.

Affirmed.

Hickman, Purtle, and Glaze, JJ., dissent.

John I. Purtle, Justice,

dissenting. In my opinion the case of Penn v. Penn, 284 Ark. 562, 683 S.W.2d 930 (1985), clearly governs the case at bar. The majority opinion attempts to distinguish these two cases. It is a distinction without a difference. I would either follow Penn or overrule it.

Tom Glaze, Justice,

dissenting. The majority decision so clearly conflicts with Ark. Stat. Ann. § 67-552 (Repl. 1980) that, in writing my dissenting view, I find it unnecessary to do little more than to refer to that statute’s pertinent language which reads as follows:

(a) If the person opening such (checking) account, . . . designates in writing to the banking institution that the account. . .is to be held in “joint tenancy” or in “joint tenancy with right of survivorship”, or that the account shall be payable to the survivor or survivors of the persons named in such account. . . then such account. . .and all additions thereto shall be the property of such persons as joint tenants with right of survivorship .... The opening of the account ... in such form shall be conclusive evidence in any action or proceeding to which either the association or surviving party or parties is a party of the intention of all of the parties to the account. . . to vest title to such account. . . and the additions thereto in such survivor or survivors. . . . (Emphasis added.)

In accordance with the foregoing law, Avis Lindsey and her husband, Claude, first opened the joint checking and survivorship account in issue here on October 2,1973. In doing so they signed the following card:

Less than two months after Claude Lindsey died on October 19,1974, Avis Lindsey took the appellant, Mary C. Jones, to the bank and added Jones to the account. As can be seen from the above account card, Jones (under Mrs. Lindsey’s instructions) placed her signature alongside Claude’s earlier signature. Mrs. Lindsey did not re-sign her name to the joint account card, nor does the controlling law or statute provide that she was required to do so. Instead, § 67-552(a) clearly provides that the opening of the account is “conclusive evidence in any action or proceeding of the intention of all parties to the account to vest title to the account, and the additions thereto, in such survivor or survivors.” When Mrs. Lindsey died, Jones, who had been added to the Lindsey account, became the survivor of the account and accordingly title to the account was vested in her pursuant to § 67-552(a) and the specific survivorship terms contained on the account card.

The majority opinion requires that the person who opens a joint account must sign it each time a person’s name is added to the account, and by doing so, the court reads something into § 67-552(a) that simply is not there. In this respect, the court is, unintentionally I am sure, participating in judicial legislation. For this and the other reasons noted above, I would declare the joint account to be the property of the appellant and reverse the trial court’s holding to the contrary.

Hickman and Purtle, JJ., join this dissent.


author: Robert H. Dudley, Justice.

text:
    Oscar STANLEY v. STATE of Arkansas
    CR 88-176
    764 S.W.2d 426
    Supreme Court of Arkansas
    Opinion delivered February 13, 1989

      Nolan and Caddell, by: Bennett S. Nolan, for appellant.

      Steve Clark, Att’y Gen., by: Tim Humphries, Ass’t Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

On June 16,1985, appellant was arrested for battery in the first degree. He remained in jail until July 23, 1985, when he was sent to the penitentiary on an unrelated charge. Under A.R.Cr.P. Rule 28.1(b) the State had twelve (12) months from the date of his arrest in which to try appellant. Floyd v. State, 280 Ark. 226, 656 S.W.2d 701 (1983). The trial court scheduled appellant’s trial for June 9,1986, which was clearly within the time limit for a speedy trial. However, another trial involving two counts of capital murder began on June 2,1986. See Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). On June 6, it appeared to the, trial judge that the Gardner trial would carry over into the week of June 9. Since the Gardner trial was already taking place in the only courtroom equipped for jury trials, the trial judge entered an order continuing the appellant’s case. His case was rescheduled for June 26, 1986, which was ten (10) days over the twelve (12) month limit. Appellant objected and also filed a speedy trial motion. The motion was denied and, on June 26, appellant pleaded guilty. He then filed a Rule 37 petition for post-conviction relief alleging a speedy trial violation and ineffective assistance of counsel. The trial court denied relief. We affirm.

A.R.Cr.P. Rule 28.3(b) provides that a period of delay may be excluded in computing time for trial when there is docket congestion caused by exceptional circumstances and the trial court enters an order setting out the exceptional circumstances. Here, the trial court entered an order on Friday, June 6, explaining that it appeared that the Gardner capital murder trial would carry over into the week of June 9. This constitutes the type of an order contemplated by Rule 28.3(b). It was sufficient to exclude the period from June 9 until June 26, the date of the next criminal docket.

The appellant argues that the time should not be excluded because the Gardner case actually ended on Saturday, June 7, and the courtroom was in fact open on June 9. The argument is without merit. The action of the trial judge in rescheduling appellant’s case due to an exceptional circumstance was reasonable at the time taken. The fair administration of justice was best served by postponing appellant’s trial to the next criminal docket, rather than having appellant, his attorney, and a whole jury panel come in to see if a courtroom might be available.

Appellant also argues that there were days during April and May 1986 when the courtroom was open, and he could have been tried on one of those days. The short answer to that argument is that appellant never asked to be tried during April or May and his speedy trial time did not expire until June 16. In summary, the appellant was not denied a speedy trial.

Appellant’s next point of appeal is that he was denied effective assistance of counsel since his attorney did not petition this court for a writ of prohibition based upon the denial of speedy trial. The argument is wholly without merit. Appellant’s right to a speedy trial was not abused. Certainly, counsel was not ineffective because he did not make an argument which had no merit. See Strickland v. Washington, 466 U.S. 668 (1984).

Affirmed.


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

text:
    Robert SIMS, Jr. v. SAFEWAY TRAILS, INC. and Midwest Bus Lines, Inc.
    87-257
    764 S.W.2d 427
    Supreme Court of Arkansas
    Opinion delivered February 13, 1989

      Walker, Roaf, Campbell, Ivory & Dunklin, by: Shelia F. Campbell, for appellant.

      Cearly Law Firm, by: Robert M. Cearly, Jr., and Jeffery S. Rubel, for appellees.
   Steele Hays, Justice.

This personal injury case resulted in a verdict for the defendants, Safeway Trails, Inc. and Midwest Bus Lines, Inc. Appellant Robert Sims, Jr. (plaintiff below) maintains that the trial court erred in ruling that the testimony of his expert witness was inadmissible. Finding no error, we affirm the judgment.

At about 3:00 a.m. on September 9,1984, Sims collided with a bus owned and operated by the appellees. The bus had overturned on Interstate 1-40 near Protho Junction, in Pulaski County, Arkansas. Headed east, the bus was in the inside lane when a vehicle merged onto the interstate from an access ramp entering from the left of eastbound traffic. To admit the merging vehicle, the bus moved to its right into the outside lane. The entering vehicle, rather than occupying the inside lane, continued onto the outside lane just ahead of the bus, which was rapidly overtaking the vehicle. Unable to use the shoulder because of an abandoned van, the bus attempted to reoccupy the inside lane, and in so doing lost control on the rain slick pavement, “fishtailed,” swerved onto the median and eventually turned on its side, partially blocking the westbound portion of the interstate. Appellant, driving west, collided with the overturned bus and sustained the injuries complained of.

Before trial the appellees moved in limine to exclude the testimony of Dr. Henry Hicks, an expert retained by appellant to investigate the collision. Dr. Hicks’s proposed testimony was examined at some length in chambers prior to trial. The court ruled some of the testimony inadmissible, and reserved judgment on the balance until the trial evolved. Dr. Hicks was permitted to listen to the proof and at a later point additional testimony by Dr. Hicks was proffered in chambers. After hearing the proffer and arguments pro and con by counsel, the trial judge concluded that the testimony was too speculative and that the factual issues were not beyond the general comprehension of the jury. Having examined the proffered testimony in detail, we believe the trial court was correct.

Dr. Hicks has been associated with the University of Arkansas for some twenty-five years and is currently professor of mechanical engineering. His qualifications to offer an expert opinion in appropriate areas are not challenged. Rather, the heart of the issue is whether the factual circumstances of the case require expert testimony and whether his opinions were conjectural.

Appellant does not take issue with the rule that the admissibility of expert testimony rests largely on the broad discretion of the trial court. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984); Firestone v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982). Thus, on appeal the appellant has the burdensome task of demonstrating that the trial court has abused its discretion. Arkansas Land and Cattle Co. v. Anderson-Tully Co., 248 Ark. 495, 452 S.W.2d 632 (1970).

Appellant maintains that Dr. Hicks should not have been denied the opportunity to testify, first, concerning the condition of the bus’s brakes and, secondly, to express his opinion as to how the bus driver erred in responding to a critical situation.

Dr. Hicks proposed to testify that at his direction a former graduate student, Mr. Yorgas Papacostas, who had considerable experience as an automotive mechanic and who held a master’s degree in mechanical engineering, went to Jackson, Mississippi, to examine the bus involved in this collision. The. essence of his subsequent oral report to Dr. Hicks was that the brakes on the bus were faulty. Dr. Hicks, though never having seen the bus nor any of its parts, proposed to testify concerning the brakes as reported to him by Mr. Papacostas. The trial court correctly excluded the testimony.

Appellant cites us to A.R.E. Rule 703:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field and forming opinions or inferences upon the subject, the facts or data need not be admissible into evidence.

In ruling the testimony inadmissible the trial court referred to Dr. Hicks’s proposed testimony as being merely a conduit for hearsay. Within the context of the case that decision was correct. Clearly, for Dr. Hicks to simply reiterate what his investigator told him concerning the brakes would be hearsay in its purest form. That, however, is not dispositive of the issue, because the law recognizes that an expert may rely on facts or data not admissible in evidence, if such facts are of a type reasonably relied upon by experts in a particular field in forming opinions upon the subject. A.R.E. Rule 703. Whether the data collected by Mr. Papacostas was of the type contemplated by Rule 703 is doubtful at best, but that need not concern us, because it is clear the data was not relevant to any opinion expressed by Dr. Hicks in explaining how the mishap occurred.

Rule 703 is obviously not intended to give an expert witness license to merely repeat hearsay for the sake of bringing such information before the fact finder. Rather, it is to enable the expert to make certain assumptions for the purpose of arriving at an opinion within the witness’s area of expertise. Dr. Hicks did not purport to have an opinion as to how the collision occurred which was even remotely related to the condition of the bus’s brakes. Indeed his testimony concerning the brakes coincided with the proof of the appellee. Referring to the bus driver’s testimony that he lightly applied his brakes on turning back to the inside lane, Dr. Hicks said, “Now we have a desperate situation and in my estimation, the driver did the right thing, he applied his brakes to some extent.” (R. p. 285). In short, under these circumstances the condition of the brakes had no relevance probative of the cause of the collision and the trial court properly excluded it.

Turning to the remainder of Dr. Hicks’s proffered testimony, we experience the same problem as the trial court in finding the kernel and condensing the substance of his opinion. Dr. Hicks either failed to develop, or failed to articulate, an opinion as to the cause of the collision which can be extracted from a number of loosely knit theories of how the driver might have reacted differently in the situation. He was of the opinion that if the bus driver had turned his wheels to the left rather than to the right just before turning over, the bus would have remained upright. However, his explanation of the dynamics which led him to that view cannot be comprehended and the trial court’s conclusion that it was entirely too speculative must be upheld. One factual inaccuracy in Dr. Hicks’s theory was his assumption that the bus driver’s testimony was to the effect that the rear of the bus first veered to the right and then to the left but that the driver regained control of the bus before driving onto the median. The fact is the driver testified that when the rear swung back from the right it then swung left to the other extreme and he never regained control of the bus after it began to fishtail.

Suffice it to say, we have reviewed the in chambers proceedings carefully and find ourselves wholly in agreement with the trial judge, who at one point observed, “I haven’t heard anything that requires an expert to come in and testify.” That observation, coming very near the end of the proffer, accommodates the rule that attempts to reconstruct traffic accidents are viewed with disfavor and in the absence of anything to indicate it was beyond the ability of the jury to understand the facts and draw their own conclusions, expert testimony is not admissible. Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (1980); Woodward v. Blythe, Adm’x., 249 Ark. 793, 462 S.W.2d 205 (1971); Huiton v. Stanton, 121 Ark. 626, 183 S.W. 765 (1916).

There was no dearth of proof in this case as to potential causes of this collision. A passenger seated immediately behind the driver testified that the speed of the bus was 63 miles an hour and expressed her opinion that such speed was excessive for the prevailing conditions. We cannot say the trial court’s discretion was abused by excluding Dr. Hicks’s testimony.

AFFIRMED.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. In my opinion Dr. Henry Hicks should have been allowed to testify as an expert in this case. For twenty-five years he has been teaching at the University of Arkansas and is a professor in mechanical engineering. He has testified many times before and usually has to rely to some extent upon information furnished by others, as do most expert witnesses. Dr. Hicks had been to the scene of the accident, and by the use of an Arkansas State Highway Department map, he had physically walked off the distances as reflected on the police report. Moreover, he heard witnesses testify about the speed of the bus and the maneuvers which the bus made before it overturned.

In the present case he sent an engineering assistant, who held a master’s degree in mechanical engineering, to Jackson, Mississippi, to inspect the brake system on the bus. The assistant had reported: “The brake shoe did not effectively contact the brake drum on that wheel.... Inspection of the aft rear wheel [left side] revealed the presence of copious amounts of lubricating oil on the brake drum.” The assistant also conducted an operating test on the brakes of the bus. Dr. Hicks did not instruct his assistant precisely on how to go about gathering the data he sought because the man was a dependable and reliable assistant and had performed such tasks many times before.

I agree with the majority opinion that an expert is needed when the jury is unable to understand the facts as presented. I cannot, however, agree that an expert is not a proper witness when there are eyewitnesses to the occurrence. Arkansas Rules of Evidence Rule 702 states:

If scientific, technical or otherwise specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.

Rule 402 provides:

All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable to the courts of this State.

Relevant evidence may be excluded pursuant to Rule 403:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

It is frequently necessary that expert opinion be based on sources other than actual physical experience. Einstein never “saw” relativity, nor did Sir Issac Newton see the apple falling on his head. Nevertheless, the theories of relativity and gravity are accepted today as basic “givens” in scientific discourse. An expert’s testimony which is based on hearsay goes only to his credibility. Hearsay evidence may form the basis of an expert’s opinion. Dixon v. Ledbetter, 262 Ark. 758, 561 S.W.2d 294 (1978).

Arkansas Rule of Evidence 703 states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible into evidence.

Obviously the facts about which Dr. Hicks wanted to testify were “perceived by or made known to him” prior to the trial. The weight of Dr. Hicks’ testimony could have been tested by cross-examination. The fact that it was based partly upon hearsay is not sufficient grounds for excluding it. Wallace v. Williams, 263 Ark. 702, 567 S.W.2d. 111 (1978).

We have in the past held, or at least indicated, that an expert could not testify unless the matter in question was beyond the comprehension of the jury. However, such a limitation is outdated and certainly is contrary to the spirit of the Arkansas Rules of Evidence. Although there is room for a difference of opinion on whether Dr. Hicks should have been allowed to testify on the question of the causation of the occurrence, it cannot be reasonably disputed that his testimony concerning the brakes should have been admitted. When Dr. Hicks was questioned about the brakes, the trial judge interrupted, saying: “Forget the brakes, can’t go into that, can’t even mention the fact that there were bad brakes.”

In my opinion the ruling on this testimony was erroneous. I would reverse and remand for a new trial.


text:
    L. Annette WOODRUFF of SCAN Volunteer Services, Inc. v. Samantha Lee SHOCKEY
    88-296
    764 S.W.2d 431
    Supreme Court of Arkansas
    Opinion delivered February 13, 1989

      M. Watson Villines II, for appellant.

      Michael R. Davis and Russell L. “Jack” Roberts, for appellee.
   Steele Hays, Justice.

This proceeding was brought on behalf of SCAN Volunteer Services, Inc., appellant, seeking a determination that the child of Samantha Shockey, appellee, was a “dependent-neglected” child. It was further requested that protective services be ordered for the child. The only question for review is whether Ark. Code Ann. § 9-27-344(b)(2) of our Juvenile Code authorizes private agencies such as SCAN, to provide those protective services.

SCAN, which is under contract with the Arkansas Department of Human Services, filed its petition on December 29,1987. A hearing was held on February 1,1988, and testimony from two witnesses was presented by the petitioner. The case was then continued as the defendant and other witnesses had not appeared.

During the interim, on March 2, appellee filed a motion to dismiss on the grounds that SCAN had no authority to monitor the protective services. A hearing on the motion was held on March 29, 1988, and after argument by counsel, the court ordered the petition dismissed, finding that SCAN was not authorized to provide protective services under Ark. Code Ann. § 9-27-344(b)(2). SCAN appeals from that order arguing that the trial court’s interpretation of the statute is incorrect. We agree.

The statute in question provides:

(b) If a juvenile is found to be a juvenile in need of services, the court may enter an order making any of the following dispositions:
* * *
(2) Place the juvenile under the protective supervision of the Arkansas Department of Human Services or other social service agency;

In its written order, the court found that under the doctrine of ejusdem generis, the term “other social service agency” in § 9-27-344(b)(2) refers to an agency of the State of Arkansas. The court then found that SCAN is not a state agency but rather a private, non-profit corporation, and therefore had no authority to discharge protective supervision orders under the statute.

The trial court has incorrectly applied the doctrine of ejusdem generis to the statute in this case. The doctrine provides that, “Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” 2A Singer, Sutherland Statutory Construction § 47.17 (4th ed. 1984). See also, Jones v. State, 104 Ark. 261, 149 S.W. 56 (1912); Cherokee Public Service v. City of West Helena, 184 Ark. 38, 41 S.W.2d 773 (1981). The doctrine can only apply however, when certain conditions exist:

(1) The statute contains an enumeration by specific words; (2) the members of the enumeration suggest a class; (3) the class is not exhausted by the enumeration; (4) a general reference supplementing the enumeration, usually following it; and (5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.

Sutherland Statutory Construction, supra, § 47.18. While the statute in question meets the fourth requirement in that it contains a general reference, it fails in every other respect to sustain an application of the doctrine.

Here there is no enumeration of specifics and, hence, nothing by which to define the limits of a class, or to even suggest that there is a class.

Thus a class is a generalization which associates items for a particular purpose. Without some objective relationship, classification is arbitrary and meaningless. The purpose for defining the class by illustrative particularizations accompanied by a general catchall reference is to determine how extensively the act was intended or should réasonably be understood to apply.

Id. When the enumeration of specifics is deficient as it is in this case, the general term “remains unaffected by its association with the preceding , words because the ‘language of the statute furnishe[s] no criterion by which to restrict its general words.’ ” Sutherland Statutory Construction, supra, at § 47-20.

The statute also fails to meet the requirements of the doctrine because the class has been exhausted. The Department of Human Services, which under the trial court’s interpretation was the specific word defining the class, is the only department in the state system dealing in the area of human services and social welfare. See generally, Ark. Code Ann. §§ 25-2-101 through §§ 25-14-101. “Where the specific words embrace all the persons or objects of the class designated by the enumeration, the general words take a meaning beyond the class.... In order to prevent their rejection as surplusage, the general words take an unrestricted meaning on the ground that the legislature, by the addition of general words to an exhaustive enumeration, must have intended that they have meaning outside the class.” Sutherland Statutory Construction, supra, at § 47.21. See also, Compton v. State, 102 Ark. 213, 143 S.W. 897 (1911).

In light of the inapplicability of ejusdem generis, if there is no ambiguity, we give the term in question its usual and ordinary meaning, and the effect just as it reads. Chandler v. Perry-Casa Public Schools, 286 Ark. 170, 690 S.W.2d 349 (1985). The statute reads, “social service agency” not “state agency” and we think it means exactly what it says — any other social service agency, whether public or private. The key word is agency. The word is broadly generic, referring to an organization, instrumentality or establishment. It carries no connotation that a division or branch of government is intended. It may more readily suggest a business enterprise, such as advertising agency, real estate agency, employment agency, sales agency, or detective agency. Any intimation of a governmental bureau is even lessened when “social” and “service” are added adjectivally. Webster’s New International Dictionary, 2d Edition, defines agency as:

1. Faculty or state of acting or of exerting power; action; instrumentality. 2. Office or function of an agent, or factor; reaction between a principal and his agent; business of one entrusted with the concerns of another; as an agency for a well-known typewriter; an advertising agency, an employment agency. 3. The place of business or the district of an agent. Synonyms: action, operation, efficiency, management; intermediation; instrumentality. (Emphasis in original).

Words and Phrases contains literally hundreds of cases interpreting “agency.” Not one suggests the slightest predilection for a governmental instrumentality. See Words and Phrases, Vol. 2A, Permanent Edition.

Thus, to restrict the definition of the term “social service agency” to a branch of state government requires reading something into the phrase which common usage plainly does not embrace.

This interpretation is made even clearer by reading the rest of the statute where alternate dispositions are listed. When the legislature intended to indicate a state agency, it has specifically stated, “an agency of the State of Arkansas.” Section 9-27-344(3)(A). Furthermore, it is clear that the legislature put no limitations on the care, supervision or even custody of a juvenile as being only by a state agency. The enumerated dispositions include several alternatives that obviously do not contemplate the involvement of a state agency: Sections 9-27-344(b)(l), 9-27-344(b)(3)(A), 9-27-344(b)(3)(C), 9-27-344(4), and 9-27-344(5).

Another reason exists for SCAN’s entitlement to both file and pursue this cause. When its petition was filed, SCAN was, pursuant to Ark. Code Ann. § 9-27-334 (1987), the designee of the Department of Human Services by virtue of a contract dated October 1, 1987, by the terms of which SCAN was obi gated to supply certain juvenile services as imposed by lawl on the Department. While this arrangement renders SCAN primarily responsible for the rendition of such services, it does not relieve the Department of its statutory duty to see that these responsibilities are discharged.

We conclude that under the factual allegations of the petition, which are thus far undisputed, we find no basis for construing the term “protective services” in § 9-27-344(b)(2) as requiring only the administration of a state agency.

REVERSED and REMANDED.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I have no dispute with the majority opinion holding that SCAN has standing to being this type of action. However, I cannot, by any stretch of the imagination, follow the gyrations whereby SCAN becomes a state agency.

An agency of the state of Arkansas could be stretched ad infinitum under the majority view. Any organization offering to take care of poor and unfortunate people would qualify as a provider of protective services under the theory announced by the majority. It was never intended that SCAN be allowed to provide the “protective services” sought in this case. The petitioner is properly before the court only so far as she is a complaining party. For this SCAN should be commended. It should not, however, overstep its bounds of authority and attempt both to petition for protective services and then provide the protective services. It seems to me that this is imposing upon the contract SCAN has with the state; it is certainly bootstrapping SCAN into the position of being a state agency.

       The term, “juvenile in need of services,” is not defined in the Juvenile Code, but doubtless refers to a grouping of two of the three classifications of juveniles under the Code — “juvenile in need of supervision,” and “dependent-neglected juvenile.” See § 9-27-303; 9-27-343; 9-27-344.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    Ray SCOTT, Director, Arkansas Department of Human Services, et al. v. CONSOLIDATED HEALTH MANAGEMENT, INC.
    88-192
    764 S.W.2d 434
    Supreme Court of Arkansas
    Opinion delivered February 13, 1989
    [Rehearing denied March 13, 1989.]

      Breck G. Hopkins and Richard B. Dahlgren, Department of Human Services, Office of General Counsel, for appellant.

      Perroni, Rauls & Looney, P.A., by: Stanley D. Rauls, for appellee.
   David Newbern, Justice.

This is an appeal from the issuance of a writ of mandamus. The appellee, Consolidated Health Management, Inc. (CHM), sought the writ requiring the appellant, Ray Scott, Director of Arkansas Department of Human Services (DHS), to review CHM’s application for a license to add beds to its nursing facility. The trial court was correct in ordering that the application be reviewed.

Prior to enactment of Act 593 of 1987, a “certificate of necessity,” issued by the State Health Planning and Development Agency, was required by law for submission with an application to the Office of Long Term Care Facilities Advisory Board (the board) for construction or enlargement of a nursing home. Act 593 abolished the requirement that there be a certificate of necessity for construction or enlargement costing less than $500,000 capital expenditure. The requirement was reinstated by Act 40 of the 1987 First Extraordinary Session of the Arkansas General Assembly, although the document required was renamed “permit of approval.”

The trial court found that after Act 593 became effective and before June 19, 1987, the effective date of Act 40, CHM representatives attempted to deliver a license application to the board, but they were not allowed to file it because it was unaccompanied by a permit of approval. The application, which was for a less-than-$500,000 expansion, thus has not been reviewed by the board, and CHM has no application on file with that office.

In the order to DHS, which is the parent agency of the board, the circuit court instructed that the application be reviewed “under applicable laws and regulations in effect at the time the application was originally submitted.” DHS has appealed the order on three grounds. First, it is contended that the court lacked jurisdiction because CHM had not pursued its administrative remedies. Second, the court erred in holding that the requirements of Act 40 were not to be applied. Third, it is argued that the decision is clearly against the preponderance of the evidence.

1. Jurisdiction

a. Discretion

In its brief, DHS contended that the decision whether to grant a license to permit expansion of a nursing home is one involving the exercise of discretion by a state office or official and, therefore, mandamus would be inappropriate. During oral argument it became clear that the court’s order did not direct the issuance of a license and that CHM was not contending that the order should be so construed.

b. Other remedy

DHS argues that mandamus is not available where another, in this case administrative, remedy is available. Department of Human Services v. M.D.M. Corp., 295 Ark. 549, 750 S.W.2d 57 (1988).

We dismiss this argument because, according to the facts found by the trial court, DHS, by rejecting the application out of hand, has denied CHM the very administrative remedy the agency contends is available. No review has occurred. There is no “decision” of record from which CHM could appeal.

2. Applicable law

In addition to reestablishing the requirement that a permit of approval accompany a nursing home license application such as the one submitted by CHM, Act 40 established a moratorium on all nursing home licensing for a period of up to two years. In Arkansas Dept. of Human Services v. Greene Acres Nursing Homes, Inc., 296 Ark. 475, 757 S.W.2d 563 (1988), we held that an application submitted prior to the effective date of Act 40 was subject to the moratorium. However, we also wrote: “Since appellee submitted its application during the effective dates of Act 593, it qualified for the exception to the permit of approval requirement.”

Generally, legislation operates prospectively. Abrego v. United Peoples Fed. Sav. & Loan Assn., 281 Ark. 308, 664 S.W.2d 858 (1984). Act 40 provided it was to be effective “from and after its passage and approval,” thus its effect is not retroactive. Lucas v. Hancock, 266 Ark. 142, 583 S.W.2d 491 (1979). In the Abrego case, we quoted from United States v. Security Industrial Bank, 459 U.S. 70 (1982), where the Supreme Court wrote that retrospective application of a statute will not occur unless it is “the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.”

When, in Arkansas Dept. of Human Services v. Greene Acres Nursing Homes, Inc., supra, we wrote that the licensing moratorium applied with respect to an application submitted during the time Act 593 was in effect but that the permit of approval requirement did not, our ruling was consistent with the language quoted from United States v. Security Industrial Bank, supra. The legislative intent of Act 40 that there be a prospective moratorium on all licensing was clear. The reinstatement of the permit of approval requirement was also prospective, but it was not clearly intended to apply to applications which had been submitted while Act 593 was in effect.

It would be unfair to CHM to hold that the application it attempted to submit during the effective dates of Act 593 was subject to the permit of approval requirement while other applications accepted for review during that time were not.

3. The evidence

DHS points out that CHM presented, at the trial, neither a copy of the application it contends it attempted to submit nor a copy of the check allegedly tendered with the application. While inclusion of these items in evidence might have strengthened CHM’s case, we know of no authority holding that they were essential to it. The judge believed the testimony of the witnesses for CHM who testified the application was presented in the Office of Long Term Care Advisory Board and that they were informed that it could not be accepted absent a permit of approval. We cannot say this finding of fact was clearly erroneous. Ark. R. Civ. P. 52(a); Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985); Johnson v. Truck Ins. Exch., 285 Ark. 470, 688 S.W.2d 728 (1985).

Affirmed.

Hays and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. Because I view our decision today as being in conflict with our recent holding in Arkansas Dep’t of Human Services v. Greene Acres Nursing Homes, 296 Ark. 475, 757 S.W.2d 563 (1988), I must dissent.

As I understand the majority opinion, the court holds that appellee, Consolidated Health Management, Inc. (CHM), is entitled to a writ of mandamus to compel the Arkansas Department of Human Services (DHS) to review CHM’s application to add beds to its nursing facility pursuant to Act 593 of 1987. Act 593, which was effective when CHM submitted its application, abolished any requirement that a nursing home, such as CHM, must obtain a “permit of approval” before the commencement of the construction or enlargement of its facilities. That permit-of-approval requirement, as noted in the majority opinion, was reinstated with the passage of Act 40 of 1987, First Extraordinary Session of the General Assembly, whereby the Act imposed a moratorium on all requests for additional beds. The moratorium began on June 19,1987, the effective date of Act 40, and is to end on June 1, 1989.

In its opinion, the majority court acknowledges the foregoing facts and concludes that the reinstatement of the permit requirement under Act 40 was prospective and was not intended to apply to applications submitted when Act 593 was in effect. The court then affirms the trial court’s decision that requires DHS to afford CHM a review under Act 593.

Try as I may, I cannot reconcile today’s decision with this court’s ruling in Greene Acres, where we reversed the trial court’s holding that Act 40 did not apply to applications filed by nursing homes during the time Act 593 was in effect. This court related the following reason for concluding as it did:

Since appellee submitted its application during the effective dates of Act 593, it qualified for the exception to the permit of approval requirement. However, even if its application for a license was complete under Act 593 for purposes of processing and review, a license for that application still had not been granted prior to the effective date of Act 40. The clear language of Act 40 prohibits the issuance of licenses during the effective dates of the moratorium. The fact that Act 40 results in the denial of licenses with respect to applications submitted prior to its enactment does not mean that it is being applied retroactively. Rather, Act 40 is being applied from and after its effective date of June 19,1987, to impose the legislatively mandated moratorium.

Greene Acres, 296 Ark. at 478-79, 757 S.W.2d at 565 (emphasis added).

As I read Greene Acres, the court’s decision is clear. Unless CHM (or other nursing homes) actually received its license for additional beds prior to the effective date of Act 40, it is entitled to a review under the terms of Act 40, not Act 593. Unless the court chooses to reverse itself, I feel bound by what the court held in Greene Acres. Therefore, I dissent.

Hays, J., joins this dissent.

       Act 593 covered construction or enlargement costing less than $500,000 in capital expenditures. CHM’s proposed construction met this limit requirement.