author: Robert H. Dudley, Justice. Steele Hays, Justice,

text:
    HANNA OIL AND GAS COMPANY v. David Patton TAYLOR
    88-144
    759 S.W.2d 563
    Supreme Court of Arkansas
    Opinion delivered November 14, 1988
    [Rehearing denied December 12, 1988.]

      Dorsey Ryan, for appellant.

      Jeff Dangeau, for amicus curiae Seeco, Inc.

      Charles S. Chambers; Turner and Mainard, by: James Mainard-, and Friday, Eldredge & Clark-, by: Michael G. Thompson and M. Gayle Corley, for appellee.
   Robert H. Dudley, Justice.

The sole issue presented by this appeal is whether appellant, Hanna Oil and Gas Company, is entitled to deduct a pro rata share of its compression costs from appellee’s, David Taylor’s, royalties. The chancellor held that appellant was not entitled to deduct the costs. We affirm.

. In 1975, appellee, David Taylor, entered into an oil and gas lease with appellant, Hanna Oil and Gas Company. The leased land was pooled with other land to form a production unit. In 1976, appellant completed a producing natural gas well. Gas from the well was sold to Arkansas Louisiana Gas Company pursuant to a gas purchase contract between appellant and Arkansas Louisiana Gas Company. The gas purchase contract was entered after the lease agreement and required appellant to deliver the gas at a pressure of 500 pounds per square inch.

During the first eight (8) years, from 1976 to April 1984, it was not necessary to compress the gas in order to deliver it at the required pressure. Beginning in April 1984, however, appellant had to compress the gas. Yet, compression costs were not deducted from the royalty paid to appellee until October 1986. On May 5, 1987, appellee filed his petition in chancery court challenging the deduction of the compression costs.

In determining whether appellant is entitled to deduct compression costs, we must first examine the language of the oil and gas lease. Compression costs are not specifically mentioned in the lease; however, the pertinent portion of the lease provides:

Lessee shall pay Lessor one-eighth of the proceeds received by Lessee at the well for all gas (including all substances contained in such gas) produced from the leased premises and sold by Lessee.

We have not had an opportunity before now to consider a proceeds royalty clause such as this.

Unless something in the context of an agreement provides otherwise, “proceeds” generally means total proceeds. Warfield Natural Gas Co. v. Allen, 261 Ky. 840, 88 S.W.2d 989 (1935). Webster’s New World Dictionary’s first definition of “proceeds” provides: “what is produced by or derived from something (as a sale, investment, levy, business) by way of total revenue: the total amount brought in: yield, returns.” Thus, we find it unnecessary to go beyond the clear language of the agreement between the parties to hold that appellant is not entitled to deduct compression costs. If it had been their intention to do so, they would have made some reference to costs, or “net” proceeds.

Further, even if we found this lease provision to be ambiguous, we would be compelled to construe it in favor of appellee. Ambiguities in an oil and gas lease should be construed in favor of the lessor and against the lessee. Bodcaw Oil Co., Inc. v. Atlantic Refining Co., 217 Ark. 50, 61, 228 S.W.2d 626, 633 (1950).

Finally, perhaps the most compelling support for our conclusion that the compression costs are not deductible lies in the construction the parties themselves placed upon their agreement for more than two years. Compression became necessary in April 1984; however, the costs associated with compression were not deducted from the royalty paid to appellee until October 1986. Thus, for over two years appellant’s construction of the lease was consistent with that urged by appellee. The construction placed upon an agreement by the parties is an important, and often decisive factor in construing an instrument. Skaggs v. Heard, 172 F. Supp. 813 (S.D. Tex. 1959).

Hays, J., dissents.

Steele Hays, Justice,

dissenting. The majority opinion has approached the issue in a straight-forward and literal way. However, the oil and gas lease does not readily lend itself to literal analysis. The majority focuses on the plain meaning of the words of this lease. While that may be a logical starting point, to simply analyze the term “proceeds,” asserting the plain, ordinary meaning, without placing the lease in its proper context, i.e. the oil and gas industry, seems destined to produce an erroneous result.

The majority reasons that no compression costs can be deducted merely because the term “proceeds” was used in the lease. They state “if it had been their intention to do so [to deduct compression costs] they would have made some reference to costs, or ‘net’ proceeds.” However, this analysis addresses only part of the problem. Lease language somewhat more pertinent, but ignored by the majority, provides that the lessor’s proceeds are to be paid on what the lessee receives “at the well for all gas produced from the leased premises and sold by Lessee.” (My emphasis).

The legal effect of the proceeds clause in the lease is to give some fractional value, e.g. one-eighth, of the gas sold at the wellhead to the lessor. The term “at the well” is a term of art describing the place where the royalty is calculated. Here, due to the low pressure of the gas, there would be no sales at the well, and hence no royalties, but for the compression. Yet, the majority reads the language of this lease and grants the lessor the royalties based upon the proceeds of the appellant’s sales, via long-term gas purchase contracts, with ARKLA. Interpreting this clause in its ordinary meaning requires the lessee to bear the entire cost of enhancing the gas product in order to make it saleable.

In Hillard v. Stephens, 276 Ark. 545, 637 S.W.2d 581 (1982), this court recognized and encouraged long-term gas purchase contracts executed in good faith. In the case now before us, to require the lessee to bear the entire cost of compression not only requires the lessee to enhance the value of the gas at the well, but discourages the entry into long-term contracts because without these long-term contracts there would indeed be no sales at the well, and thus no proceeds for the lessor. But because of the appellant’s diligence in securing long-term contracts for this gas, the majority opinion penalizes the lessee for these efforts.

Moreover, in Hillard v. Stephens, 276 Ark. 545, 637 S.W.2d 581 (1982), we held that, “once the lessee-producer drills a well resulting in the commercial production of natural gas on the leased premises, the lessee-producer has the immediate duty to market the gas.” In order to market the gas effectively, the lessee-producer customarily enters into a long-term purchase contract. In this case, due to the declining pressure in the well, in order to successfully adhere to the implied duty to market the gas, the gas had to be compressed. Not only does the majority opinion place financial impediments towards the lessee fulfilling this marketing duty, but the lessee’s implied duty to market is transposed into a duty to render the gas more valuable than it actually is. According to the lease, gas is to be sold and proceeds paid at the well, however, the fact is the gas in its natural state at the well is unsaleable.

Of course, it could be argued that the lessee must compress the gas at his own cost pursuant to his implied duty to market the gas. But in Clear Creek Oil & Gas Co. v. Bushmaier, 165 Ark. 303, 264 S.W. 830 (1924), we rejected the premise that the duty to market gas required the lessee alone to bear the post production cost of transportation. The court in Clear Creek, supra, held that when there was no market for the gas at the wells, the lessee was entitled to deduct costs from the lessor’s royalties for the cost of transportation to carry this gas to the nearest available market. Compression costs, like transportation costs, are post production expenses. Compression costs are comparable to the costs of trucking production to a distant pipeline since both are merely logistical methods by which the gap between production and pipeline is transcended, regardless of whether such gap is measured in inches or miles. Altman and Lindberg, Oil and Gas: Non-Operating Oil and Gas Interests’ Liability for Post-Production Costs and Expenses, 25 Okla. L. Rev. 363 (1972). Therefore, I believe this court should follow Clear Creek and allow the lessee to deduct compression costs from the lessor’s royalties.

Arguably, Clear Creek may be distinguished from the case before us by pointing out the royalty lease provision required that the lessee would pay the lessor based upon the “market price” rather than upon “proceeds.” The essence of the distinction between the terms “market price,” “market value,” and “proceeds” relates to setting the basis from which the royalty will be calculated. In this case, the basis for calculating the royalty is not an issue, but rather, what expenses may be deducted from this basis, and therefore this distinction for our purposes is irrelevant.

Furthermore, the sanctity of literally interpreting the lease language as written was ignored in Hillard v. Stephens, supra. Despite the royalty lease language requiring the lessee to pay the lessor based on the “prevailing market at the well,” we held that the lessors were entitled to receive royalties based on the proceeds of the sales under long-term gas purchase contracts with ARKLA.

Finally, the majority places particular emphasis on the construction the parties gave to this oil and gas lease as to whether compression costs could be deducted. It is interesting to note that the authority cited is a Texas case in which the phrase to be construed was “sold at the well” — the precise term ignored by the majority in this case. While construction of terms in leases is important, here what has occurred reflects the changing gas economy. Until 1981 the gas market was a buyer’s market. In a buyer’s market the gas purchasers, if necessary, compressed the gas deducting a portion of the price paid to the supplier. However, due to the oversupply of gas, gas purchasers now opt not to compress the gas themselves, but require the seller/producer to compress the gas. Therefore, the construction placed on these terms by the parties was not so much intended, but rather the construction emerged from the economics of the situation.

The oil and gas authorities, as well as the jurisdictions, are split over whether the lessor should bear any burden for the costs of compression. However, in light of our holdings that a lessee-producer has an implied duty to market the gas, and that the lessee must share the post production cost of transportation when there are no sales at the well, I believe that the lessor and lessee should bear the costs of compression proportionally. Therefore, I respectfully dissent.


source: Caselaw Access Project

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

license: Public Domain

text:
    Carl WIDMER v. John T. TOUHEY, Attorney at Law, and Raymond R. Widmer
    88-146
    759 S.W.2d 562
    Supreme Court of Arkansas
    Opinion delivered November 14, 1988

      Carl Widmer, pro se.

      Douglas, Hewett and Shock, by: J. Randolph Shock, for appellee Raymond R. Widmer.
   Robert H. Dudley, Justice.

Carl Widmer again appeals from an adverse decision in yet another suit against his brother, Raymond Widmer. See Widmer v. Widmer, 293 Ark. 296, 737 S.W.2d 457 (1987); Widmer v. Widmer, 292 Ark. 486, 731 S.W.2d 209 (1987); Widmer v. Widmer, 292 Ark. 384, 729 S.W.2d 422 (1987); Widmer v. Widmer, 288 Ark. 381, 705 S.W.2d 878 (1986); Widmer v. Widmer, 479 U.S. 849 (1986); Widmer v. Widmer, No. CA-85-217 (Ark. App. Feb. 26, 1986) (unpublished opinion). Also, he once again joined one of the lawyers for his brother in the suit. See Widmer v. Taylor, et al., 296 Ark. 337, 756 S.W.2d 903 (1988). This time he sued his brother and John T. Touhey, alleging that throughout their attorney-client relationship they conspired against Walter Widmer, Carl and Raymond’s father. Raymond Widmer moved for dismissal of the complaint against him. The motion was granted. As far as we can discern from the record, Touhey remains a defendant in the case below. ARCP Rule 54(b) allows a trial court to direct the entry of a 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. “In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, . . . .” Ark. R. App. P. 2. The order appealed from had no such determination and direction. Accordingly, it is not a final appeal-able order. We are obliged to raise the point because it is a jurisdictional requirement. Kilcrease v. Butler, 291 Ark. 275, 724 S.W.2d 169 (1987); Ark. R. App. P. 2.

Appeal dismissed.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. Appellees request that this court impose sanctions for frivolous litigation pursuant to ARCP Rule 11, a rule cognizable in the trial courts. Because sanctions were not requested by appellees below, this court may not consider Rule 11 sanctions when appellees raise such a request for the first time on appeal.

Appellees have properly requested that Rule 9(e) of the Rules of the Supreme Court be imposed because of the appellant’s deficient abstract. Appellant’s abstract is not only deficient, but also his brief, including argument, is truly bewildering and a repeat of most of the same assertions offered in one form or another in his seven earlier appeals. While I agree with this court’s dismissal of this case, I would also award whatever costs the appellees have incurred when supplementing their abstract in this appeal.


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

text:
    Jimmy HESTER v. John LANGSTON, Judge
    88-82
    759 S.W.2d 797
    Supreme Court of Arkansas
    Opinion delivered November 14, 1988

      Gene Worsham, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This is an original action by the petitioner, Perry County Sheriff Jimmy Hester, asking this court to prohibit Circuit Judge John Langston from proceeding to trial upon an indictment returned against Hester by a Perry County grand jury. We granted a temporary writ of prohibition and required briefs pursuant to Rule 16 of the Rules of the Supreme Court and the Court of Appeals. Having considered the arguments we now dissolve the temporary writ of prohibition.

On December 17,1987, a Perry County grand jury returned two indictments against petitioner, Sheriff Jimmy Hester. The first indictment charged Hester with violating Ark. Code Ann. § 14-14-1202 (1987), ethics for county government officers and employees. A jury subsequently found the petitioner not guilty on this indictment. The second indictment charged the petitioner with several violations including: (1) violation of county ordinance 0-209, the misuse of county funds; (2) violation of Ark. Code Ann. § 5-36-103 (1987), theft of property; (3) violation of Ark. Code Ann. § 5-54-121 (1987), tampering with a public record; and (4) violation of Ark. Code Ann. § 5-53-103 (1987), false swearing.

The petitioner filed a motion to dismiss the second indictment on the grounds that it was void and that it was barred by double jeopardy. Additionally, the petitioner asked for a jury trial which was denied by the trial judge. The motion to dismiss the indictment on the grounds that it was void was denied, but the trial judge did strike relevant paragraphs of the second indictment under the double jeopardy argument. We affirm the trial judge’s rulings.

The writ of prohibition is an extraordinary writ and it should never be granted unless the petitioner is clearly entitled to relief and the court against which it is sought is wholly without jurisdiction. Miller v. Lofton, 279 Ark. 461, 652 S.W.2d 627 (1983); Springdale School District v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981); Wade v. State, 264 Ark. 320, 571 S.W.2d 231 (1978). The essence of the writ of prohibition is jurisdictional. The circuit court’s jurisdiction over this matter is decisively stated in the Arkansas Constitution. Article 7, § 27 of the Arkansas Constitution provides:

The circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from officer for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office.

Clearly from the language of this constitutional provision, the Perry County Circuit Court has jurisdiction upon presentment of the indictment to remove the petitioner, the county sheriff, from office. Jurisdiction is not an issue in this case, and thus the writ of prohibition is not appropriate.

The petitioner also argues that the trial judge acted beyond the scope of his jurisdiction in denying the request for a jury trial. However, we do not reach that argument by prohibition, as the remedy is by appeal. McClendon v. Wood, Judge, 125 Ark. 155, 188 S.W. 6 (1916).

Temporary Writ dissolved and the Writ of Prohibition denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I strongly disagree with the majority opinion as expressed in this case. The majority relies to some extent on the case of McClendon v. Wood, Judge, 125 Ark. 155, 188 S.W. 6 (1916). The holding,in McClendon was that even if the circuit judge were erroneous in proceeding to try the mayor that the remedy was by appeal because the circuit court had jurisdiction of the case. The majority appears to adopt that reasoning in the present case. The majority opinion will result in a waste of the time of the jury and court personnel if this case should be reversed on appeal for lack of a jury trial or proper jurisdiction.

No court in the United States has jurisdiction to try a person on a criminal charge without a jury. It is just as logical to say that the circuit court could proceed to try a person in a capital felony murder trial without a jury and that we would not issue prohibition because on appeal the matter could be corrected. Such a waste of time and money is inexcusable. In some cases the person wrongly tried may not have the money or otherwise be able to appeal his case. He has, of course, been denied equal justice, due process, and common ordinary decency.

Article 7, § 27 of the Arkansas Constitution is quoted in the majority opinion, but I will set it out again at this point for convenience of the reader:

The circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office.

I agree that this language gives the circuit court jurisdiction to try a case upon presentment of an indictment to remove the county sheriff from office. However, nothing in that provision even hints that the court may try a person without a jury. Article 2, §7 of the Constitution of the State of Arkansas commences with the statement: “The right of trial by jury shall remain inviolate and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law; . . . .” Never before have I heard of any court expressing the opinion that a person was not entitled to a jury trial in a criminal matter. Since the case is to be tried upon a grand jury indictment, charging the sheriff with something which I do not understand, I presume it is criminal. An additional guarantee of the right to a jury trial is contained in Article 2, § 10, of the Arkansas Constitution: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed;. . ..” While I doubt that the sheriff would “enjoy” a jury trial, it seems to me that the majority could not be more wrong when it denies him a jury trial, even if we were to reverse on appeal.

Ark. Code Ann. §§ 21-12-301 and 21-12-302 (1987) concern suspension of county officers. One provision of these statutes states, “Upon conviction of any such officer for an offense involving incompetency, corruption, gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance, or nonfeasance in office” the person shall be removed. If this plan is not to try Sheriff Hester upon a criminal charge, surely it must fall in the category of “incompetency, corruption, malfeasance, misfeasance or nonfeasance.” If it is criminal or one of the last mentioned acts, then he is clearly entitled to a trial by jury.


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

text:
    Dorene LEATHERWOOD v. Inez MEISCH, In the Matter of the Estate of Francis F. Meisch, Deceased
    88-107
    759 S.W.2d 559
    Supreme Court of Arkansas
    Opinion delivered November 14, 1988

      Zachary D. Wilson, for appellant.

      Phil Stratton and Casey Jones, Ltd., by: Phil Stratton, for appellee.
   Steele Hays, Justice.

The only question to be decided is whether appellant Dorene Meisch Leatherwood is a pretermitted child under the will of her late father, Francis F. Meisch. Mrs. Leatherwood is the only child of Francis Meisch and Dorothy Meisch, who divorced in 1953. Francis Meisch died on December 29, 1985, survived by his widow, Inez Meisch, and by Mrs. Leatherwood.

Inez Meisch petitioned the probate court for the probate of a will dated February 9, 1973, naming Inez Meisch as executrix with Dorene Leatherwood as alternate. The will provided that if Inez Meisch survived, she would receive the entire estate — if not, then the estate would go to Dorene Leatherwood.

Subsequently, Mrs. Leatherwood objected to the 1973 will and offered two later wills — one dated October 29, 1980, and the other dated March 14,1984. The petition asked that the 1984 will be probated and that Mrs. Leatherwood be declared to be a pretermitted child under the 1984 will.

The 1984 will was admitted to probate as the last known will of Francis Meisch. It provided that Inez Meisch would serve as executrix and, if she survived, would receive the entire estate. If Mrs. Meisch did not survive, the entire estate was to be divided into two equal shares, “one of which shall be distributed to those persons who would constitute my heirs at law on the date of my death, and the other share distributable to those persons who would constitute the heirs at law of my said wife on the date of her death.” The will does not mention Mrs. Leatherwood by name.

Mrs. Leatherwood contends here, as she did before the probate court, that she is a pretermitted child within the language of Ark. Code Ann. § 28-39-407(b) (1987):

(b) PRETERMITTED CHILDREN: If, at the time of the execution of a will, there is a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to the child or issue. The child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will.

The probate judge held that Mrs. Leatherwood came within a class mentioned in the will and was not, therefore, pretermitted. Mrs. Leatherwood has appealed and we affirm.

Our relevant cases can be summarized succintly — if the word “heir” or “heirs” is used by the testator in a colloquial sense to refer to children, or descendants, as opposed to a technical, legal sense, then the requirements of § 28-39-407(b) (1987) are met. Taylor v. Cammack, 209 Ark. 983, 193 S.W.2d 323 (1946); Powell v. Hayes, 176 Ark. 660, 2 S.W.2d 974 (1928). Thus in Young v. Young, 288 Ark. 199, 703 S.W.2d 457 (1986), we held the following language was a sufficient mention of children to uphold a will which excluded them:

I am mindful of the fact that I have willingly and intentionally omitted to provide for all my heirs or other relatives not specifically mentioned herein.

Similarly, in Petty v. Chaney, Ex’x, 281 Ark. 72, 661 S.W.2d 373 (1983), we held that a provision for “my wife and my descendants,” was sufficient.

Mrs. Leatherwood relies on the case of Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981), which the concurring opinion finds indistinguishable from the case now before us. But how could it be said the words “heir” or “descendant” are used in a colloquial sense when they do not even appear? The probate judge found the wording in Robinson to be technical and we affirmed. Perhaps the difference is only one of degree, but most differences are, when closely examined. The language in Robinson provides that the estate would:

devolve to those persons who would be entitled to share in the distribution of the estate in accordance with the laws of descent and distribution in the State of Missouri.

That is the terminology of the technician, the cant of the legal profession, not the words a layman might choose to refer colloquially to a child or to children.

While we review probate cases de novo, we cannot say the trial judge’s order was clearly erroneous and, accordingly, we affirm.

Holt, C.J., and Newbern, J., concur.

Purtle, J., dissents.

David Newbern, Justice,

concurring. The result reached in this case is correct, however, I cannot accept the abstract “colloquial-technical” distinction made in the majority opinion. The will purported to distribute a share of the estate to “my heirs at law on the date of my death.” In Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981), we held a child was pretermitted because not included in a devise or bequest “to those persons entitled to share in the . . . estate in accordance with the laws of descent and distribution in the State of Missouri.” By just looking at the two sets of words, it is impossible for me to say one is more or less technical than the other.

We recently reviewed the cases involving the technical-colloquial distinction. Young v. Young, 288 Ark. 199, 703 S.W.2d 457 (1986). One of the cases reviewed was Taylor v. Cammack, 209 Ark. 983, 193 S.W.2d 323 (1946), where a testator’s statement appointing an executor with “full power to sell and dispose of it [property] [if] in his (its) judgment it is necessary or ... to the advantage of . . . the heirs” was held a sufficient reference to the testator’s children to avoid pretermitting them. We looked at the circumstances in which the words were used and found the testator had no heirs other than his three children, we then found it was reasonable to assume he was using the term “heirs” in the non-technical sense to refer to the children.

As we noted in the Young case, the purpose of the pretermitted child statute is not to compel a testator to provide for his children; it is to provide for the child the testator may simply have forgotten to mention. It is clear to me that the testator must have meant to include Dorene Leatherwood in the category “heirs,” because she was his only child. Therefore, it was not erroneous for the court to find that she was mentioned in the will.

Holt, C.J., joins in this opinion.

John I. Purtle, Justice,

dissenting. I cannot go along with the majority opinion in this case because it clearly obliterates the requirement that an heir be mentioned in a will by a name or as a member of a class. The pertinent part of the statute relating to pretermitted children states that if there is a “living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to the child or issue.” In this case the court has gone so far as to hold that the mere designation of the contingent beneficiaries as “my heirs at law” satisfied the requirement that a child be mentioned. This decision is simply not in keeping with the plain words of the statute and most of our past decisions. In this case the so-called class is “those persons who would constitute my heirs at law on the date of my death.” That phrase simply restates the law of descent and distribution and has no effect whatsoever on any person’s right to inherit.

I think we ought to return to our holdings such as that of Crossett Lumber Company v. Files, 104 Ark. 600, 149 S.W. 908 (1912), where this court held that if a testator failed to mention the name of his only surviving child, that child was pretermitted. We have a long line of cases holding that if the names of all, any, or either of the testator’s children are omitted in the will, the testator is deemed to have died intestate as to those omitted. Boyd v. Epperson, 149 Ark. 527, 232 S.W. 939 (1921), Branton v. Branton, 23 Ark. 569 (1861). These decisions were rendered under prior law, but the principle is the same. The case of Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981), cited in the majority opinion, concerned the designation of “those persons who would be entitled to share in the distribution of the estate in accordance with the law of descent and distribution of the state of Missouri.” We held this was insufficient to exclude two children who were not named in the will. We upheld the trial judge’s decision that the failure to name the children in the will rendered them pretermitted children. We have also held that the failure of the testator to mention a child or issue of a deceased child resulted in treating such omitted heirs as though no will had been made. Cisco v. Cisco, 288 Ark. 552, 707 S.W.2d 769 (1986).

We need to get away from these strained constructions which interpret certain language as “technical” and other language as “common usage.” Over a period of time, and by use of common sense, we have learned that a “class” of devisees is simply not equivalent to those who are “heirs at law.” A “class” consists of such groups as brothers, sisters, children, grandchildren, nieces, nephews, etc. The reason for making a will in the first place is to dispose of property in a manner which would not be followed if left to the law of descent and distribution. The reason our cases have been fairly consistent in requiring the testator at least to mention a descendant as a member of a class is to prevent the unintentional disinheritance of a legitimate heir. It is my opinion that we ought to get back to the basics and require a will to meet the requirements of the statute.

The appellant, the only child of the decedent, was not mentioned by name or by class in the will. By any standard she is pretermitted and therefore entitled to her intestate share of the estate.

       The 1980 will nominated Mrs. Leatherwood to be executrix and recited that if a pending divorce suit was finalized prior to the death of Francis Meisch, Inez would receive nothing, but if the death should occur before finalization, Inez would receive only her statutory interest as widow. The residue of the estate was bequeathed to Dorene Leatherwood.


author: Steele Hays, Justice.

text:
    Ed LOVE, Dan Mobley, John Owen, John Hogue, Jim Tyler, Norris Medlin, and The Bryant School District v. Terry HILL and Nancy Hill, Individually and as Parents and Next Friends of Andrew Hill and Margaret Hill, Minors
    88-130
    759 S.W.2d 550
    Supreme Court of Arkansas
    Opinion delivered November 14, 1988

      Boswell, Tucker & Brewster, by: Clark S. Brewster, for appellant.

      George D. Ellis, for appellee.
   Steele Hays, Justice.

Appellees, Terry and Nancy Hill, are residents of the Little Rock School District and are the parents of Andrew and Margaret Hill, ages eight and twelve. Mrs. Hill is a high school English teacher in the Bryant School District. Appellants are the Bryant School District, members of the school board and the superintendent.

Relying on Act 624 of 1987, appellees applied to the district to enroll Andrew and Margaret Hill to attend elementary school in the district. The applications were denied and appellees filed this action for declaratory and injunctive relief. The chancellor granted a temporary order for the children to attend school in Bryant pending a final adjudication. The appellants filed a counter-claim challenging the constitutionality of Act 624 and after a trial on the merits the chancellor granted the relief sought by the appellees. Appellants have appealed and we affirm.

Appellants argue that Act 624, codified as Ark. Code Ann. § 6-18-203(b) (Supp. 1987), is unconstitutional in that it violates the equal protection clause of the United States Constitution and is a grant of privileges to one class of citizens not equally belonging to all citizens. Arkansas Constitution, Article II, Section 18.

Section 6-18-203 (b) reads:

The children or wards of any person who is a public school teacher in one school district in this state and a resident of another school district shall be entitled to be enrolled in and to attend school in either the district in which the parent or guardian resides or the district in which the parent or guardian is a public school teacher.

Appellants contend there is no rational basis for this legislative enactment. They maintain that teachers are not entitled to greater convenience in arranging school attendance for their children than other working households and that the Bryant School District is already burdened by incessant annual growth of its enrollment. The arguments are not well taken and cannot be sustained under-the law.

Where the constitutionality of legislative enactments is the issue the law places upon the challenger the burden of proving the act unconstitutional. Citizen’s Bank of Batesville v. Estate of Pettyjohn, 282 Ark. 222, 667 S.W.2d 657 (1987). There is a presumption of constitutionality attendant to every legislative enactment and all doubt concerning it must be resolved in favor of constitutionality. Stone v. Stone, 254 Ark. 1011, 498 S.W.2d 634 (1973). If it is possible to construe an act so that it will pass the test of constitutionality, the courts not only may, but should and will, do so. Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972).

We do not judge the wisdom of the produce of the legislative branch, “our task is merely to consider if any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government and void of any hint of deliberate and lawful purpose . . .” [Straight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983)].

Judged in that light, we have no doubt but that this legislation rests upon a rational basis. That which might facilitate a teacher’s transportation of his or her children, or enables them to be nearer to the teacher, or to each other, during school hours, may well be deemed useful in alleviating problems which might otherwise distract a teacher, or necessitate his or her withdrawal from active teaching.

The argument that this legislation simply adds enrollment to an already burgeoning school district does not address itself to this branch of government, but to the legislative branch. It is not our place to pass on the need for, or the prudence of, legislation. Our review is limited to its constitutionality.

Appellants also argue that the trial court erred in failing to recognize a conflict between Ark. Code Ann. § 6-18-203 (b) (Supp. 1987) and § 6-18-317 (Supp. 1987), and in failing to find the district is prohibited from enrolling the Hill children under § 6-18-317 (Supp. 1987), which reads:

(a) Board of Directors of local school districts are prohibited from granting legal transfers in the following situations:
(1) Where either the resident or the receiving district is under a desegregation-related court order or has ever been under such a court order; and
(2) The transfer in question would negatively affect the racial balance of that district which is or has been under such a court order. . . .”

Appellants point out that the chancellor took judicial notice of the fact that the Little Rock School District is involved in continuing litigation which is “desegregation-related” and the transfer of these children would negatively affect the racial balance of the Little Rock School District. They argue that the statutes are in direct conflict and the racial balance of the Little Rock district is of greater public importance than insuring that children of teachers are enrolled where a parent or parents are teaching.

We need not decide which of these considerations is dominant, as we have not been persuaded that the provisions cannot be reconciled — a necessary prerequisite, because we are obliged to harmonize these statutes so as to give effect to both if it is possible to do so. Cummings v. Washington County Election Commission, 291 Ark. 354, 234 S.W.2d 486 (1987); Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986). This is especially true when the two enactments are adopted at the same session of the legislature, as these were. Sargent v. Cole, 269 Ark. 121, 598 S.W.2d 749 (1980).

Appellees point out that the Hill children are not “transferring” from one district to another as that word is ordinarily understood, but are availing themselves of a statutorily created right to enroll in the first instance in the district where one of their parents teaches. The making of a choice created by the statute does not result in a “transfer” as contemplated by § 6-18-317 (Supp. 1987). The prohibition of subsection 317 is against “legal transfers,” dealt with generally in subsection 306, which provides for petitioning to attend school in a non-resident district, requiring the approval of both the sending and the receiving district. Newark School District v. Cord-Charlotte School District, 278 Ark. 110, 644 S.W.2d 110 (1983). The legislature did not use the term “legal transfer” in § 6-18-203(b) (Supp. 1987), but referred to “enrolling” in the district where the parent teaches. There is no suggestion in the latter section that the legislature intended this process to be comparable to “legal transfer.” We find, therefore, that these statutes are not Irreconcilable.

Finding no error, we affirm the judgment.


author: David Newbern, Justice.

text:
    Aubrey Dean ELWOOD v. STATE of Arkansas
    CR 88-42
    759 S.W.2d 557
    Supreme Court of Arkansas
    Opinion delivered November 14, 1988

      Richard L. Hughes, for appellant.

      Steve Clark, Att’y Gen., by: DavidB. Eberhard, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Aubrey Dean Elwood, appeals from denial of post-conviction relief. He contends a condition of his plea of guilty to theft was that his sentence would be served concurrently with any sentence he received on charges pending in Oklahoma. The trial court agreed with that condition but notified Elwood that it had no control over what the Oklahoma court might do. Apparently the Oklahoma court chose not to proceed against Elwood, and he is serving his Arkansas prison sentence in Arkansas rather than in Oklahoma as he had hoped to do. He filed a pro se petition to withdraw his plea of guilty. The court found it lacked jurisdiction to set aside a plea already executed, but the petition was treated as one seeking relief under Ark. R. Crim. P. 37. We affirm the denial of the petition.

At the hearing where Elwood pleaded guilty to theft charges with respect to which the available sentence was enhanced by the habitual criminal law, the following occurred:

MR. STEEL [the prosecutor]: Your honor, it will be the recommendation of the State that the defendant be sentenced to twenty (20) years in the Arkansas Department of Correction, with five (5) of those years suspended, and that the fifteen (15) years run concurrently with other convictions or charges pending in Oklahoma, wherein they expect to have a comparable amount of time, or in excess of that, is that right?
THE DEFENDANT: Yes sir.
THE COURT: What do you have pending over there?
THE DEFENDANT: Felonious possession of a firearm, possession of a firearm after one conviction, five-year parole violation, unauthorized use of a motor vehicle.
THE COURT: We can run them concurrently, but when you plead over there, if they say theirs is consecutive, it could cause some problems, do you understand that?
THE DEFENDANT: Yes sir. I’m pretty sure they’ll run theirs all ... .
THE COURT: ... at the same time?
THE DEFENDANT: Yes, sir.
THE COURT: Well, I’m just putting you on advi[c]e that if you go to prison and they run theirs consecutively, there is nothing I can do about it. They probably won’t, but they could. What the prosecutor stated, is that your understanding of what you and your attorney had plea bargained for?
THE DEFENDANT: Yes, sir.
THE COURT: Are you satisfied with it?
THE DEFENDANT: Yes, sir.
THE COURT: I’m going to accept your guilty plea. I’m going to sentence you to twenty (20) years in the Arkansas Department of Correction with five (5) years suspended, and to run concurrent with your Oklahoma sentences.
MR. STEEL: Judge, I wonder, if things don’t work out over there, and we need to get him back to serve his time in Arkansas, we’ll have him sign a Waiver of Extradition Form, would that be the proper form?
THE COURT: Yes, I think so.
MR. BARTON [Elwood’s counsel]: Your Honor, there’s no problem, however, he would like to sign an extradition to go to Oklahoma.
THE COURT: Well, I imagine they would take him over there, probably immediately.

While everyone at the hearing might have presumed that the Oklahoma authorities would take Elwood, and that he would begin serving a sentence in Oklahoma and his concurrent Arkansas sentence right away, Elwood clearly was placed on notice that it might not work out that way. The court made it clear to him that all it could do was make his Arkansas sentence concurrent with any he might thereafter serve in Oklahoma but that that did not necessarily mean Oklahoma authorities would cooperate. The Arkansas sentence was precisely in compliance with the plea bargain, and Elwood’s point that he was to serve his time in Oklahoma is without merit. His reliance on Mabry v. Johnson, 467 U.S. 504 (1984), is misplaced. There it was said, but not held, that when the prosecution breaches its promise made in exchange for the plea, the plea cannot stand. See Santobello v. New York, 404 U.S. 257 (1971). Here, the state has breached no promise.

Elwood also argues ineffective assistance of counsel and that he did not understand “the real substance of the court’s inquiry” at the plea hearing. These points were not raised at the hearing before the circuit court, thus we will not consider them. Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987); Wiser v. State, 256 Ark. 921, 511 S.W.2d 178 (1974).

Affirmed.


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

text:
    Cecil Jean SHORT v. LITTLE ROCK DODGE, INC., and Chrysler Corporation
    88-172
    759 S.W.2d 553
    Supreme Court of Arkansas
    Opinion delivered November 14, 1988

      G. Randolph Satterfield, for appellant.

      Davis, Cox & Wright, by: Constance G. Clark, for appellee Chrysler Corp., and Lovett Law Firm, by: Tom F. Lovett, for appellee Little Rock Dodge.
   David Newbern, Justice.

Susan Gale Short was killed when her car left the highway and overturned. Her mother, the appellant Cecil Jean Short, brought an action on her own behalf and as administratrix of Susan’s estate against the appellees, Little Rock Dodge, Inc., and Chrysler Corporation, alleging negligence as well as strict liability for manufacture and sale of a defective product. A summary judgment was entered in favor of the defendants because, in response to the summary judgment motion, Mrs. Short was unable to produce evidence that a defect in the car or Little Rock Dodge’s negligence in failing to repair it caused the accident. The ruling was correct and is affirmed.

When the summary judgment motion was made, the judge had before him depositions and responses to requests for admissions and interrogatories. Susan’s father stated the car had been purchased used from Little Rock Dodge and had been returned for repair of an engine stalling problem. Other witnesses said the car had stalled while they were riding with Susan, and one said the car had stalled while she was riding with Susan just a few hours before the accident.

There were no eyewitnesses to the crash. Susan was driving alone. The car was traveling on a hilly and winding highway. It apparently went off on the right shoulder, crossed over the road, and turned over on the left side of the highway. A state policeman who was following Susan’s car at a distance and who came upon the scene shortly after the crash stated he could not determine the cause. He had noticed Susan’s car ahead of him going 40 to 60 miles per hour.

The statement of an experienced mechanic was that Chrysler Corporation had recalled cars of the same year and model as Susan’s for replacement of a carburetor part to remedy the stalling problem. However, no affidavit or other statement by any expert or other person to the effect that the stalling problem caused the accident was presented. Nor was proof offered which would have negated other possible causes of the accident. If there is proof of a defect, as there was here, the case might be allowed to go to a jury despite a failure to show by direct evidence that the injury was proximately caused by the defect. That would be so if there were evidence that other possible causes could not have been the cause of the injury. In Higgins v. General Motors Corp., 287 Ark. 390, 699 S.W.2d 741 (1985), we affirmed the granting of a directed verdict because there was no such other evidence.

It is proper to grant a summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ark. R. Civ. P. 56(c). In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court interpreted F.R.C.P. 56, which is identical to our rule in every material respect, as permitting a summary judgment when a plaintiff cannot offer proof of a material element of the claim. We agree with the Supreme Court’s rationale that when a party cannot present proof on an essential element of her claim there is no remaining genuine issue of material fact, and the party moving for a summary judgment is entitled to judgment as a matter of law.

Affirmed.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. This case involves a summary judgment which requires us to determine whether the appellant’s proof showed a genuine issue of material fact existed to support the appellant’s claim that Susan Short’s accident was proximately caused by a defect in the car she purchasd from the appellee. As the majority notes, proof revealed a defect and stalling problem. Johnny Burnett, Susan’s friend, testified that Susan’s car had previously stalled when he was in it, and Susan was unable to steer the car because of the loss of power steering. He said that he grabbed hold of the steering wheel, pulled the shift lever down into neutral, started the car and then went on. Burnett further related that Susan had trouble steering the car on the occasions when her car died because she did not have a lot of strength.

If this cause was on appeal to review the correctness of the trial court’s ruling in directing a verdict, I could certainly agree the evidence was insufficient to support the appellant’s claim. I do, however, believe the proof was sufficient to show that Susan’s car stalled numerous times as a result of a defect in the car and that she could not control the car when it stalled. This is enough, I think, to present a genuine issue of fact to indicate Susan’s car could have stalled when driving on a hilly and winding road on the night of the accident and if it did, she was unable to bring the car under control because of its loss of the power steering.


author: Tom Glaze, Justice.

text:
    Laurie RONE v. H.R. HOSPITALITY, INC., and Shamrock Properties, Inc.
    88-69
    759 S.W.2d 549
    Supreme Court of Arkansas
    Opinion delivered November 14, 1988

      Sanders & Hill, by: Robert Sanders, and Wilson, Enstrom, Corum & Dudley, by: William R. Wilson, for appellant.

      Wood, Smith, Schnipper & Clay, for appellees.
   Tom Glaze, Justice.

This case is another of a series of cases which involves the sale or giving of alcohol to a person who became intoxicated and, as a consequence, injured himself or a third party. See Alpha Zeta Chapter of Pi Kappa Fraternity v. Sullivan, 293 Ark. 576, 740 S.W.2d 127 (1987) (where fraternity, hosting a hayride, furnished alcohol to a minor [rushee], who was struck and killed by a car as he left the trailer parked on one side of the road to cross to the other side of the road); First Am. Bank of North Little Rock v. Associated Hosts, Inc., 292 Ark. 445, 730 S.W.2d 496 (1987) (where a person, attending a local bar’s happy hour, became intoxicated, and as he left the bar, he fell striking his head on the pavement which caused him serious injuries); Yancey v. Beverage House of Little Rock, Inc., 291 Ark. 217, 723 S.W.2d 826 (1987) (liquor store sold liquor to an intoxicated minor who subsequently was involved in a one-car accident in which two teenage passengers were killed); Milligan v. County Line Liquor, Inc., 289 Ark. 129, 709 S.W.2d 409 (1986) (liquor store sold beer to a minor, who later lost control of his car when he was opening a bottle of beer causing his car to strike an oncoming vehicle killing the driver of the other vehicle); Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965) (tavern owner illegally sold drinks to a woman until she was visibly intoxicated and as a result of her drunkenness, she later ran her car into a parked taxi cab causing injuries to a third party). In each of these cases we have held that one who furnishes alcohol to a minor or to someone who is inebriated is not liable by doing so.

Because this lawsuit arises out of an automobile accident which occurred after a company-employee champagne party, the appellant seeks to distinguish this case from our prior case law by arguing that this court should apply well-settled common law negligence and hold the employers liable for furnishing alcohol to the employees. Stanley Little and the appellant were co-employees of the appellees. The appellant left the champagne party with Little and was a passenger in his car. Little, who apparently had become inebriated at the party, lost control of his vehicle and struck a telephone pole. As a result of this accident, the appellant sustained injuries. The appellant now appeals the trial court’s granting of the appellees’ motion to dismiss for failure to state a claim from which relief can be granted.

Under the circumstances of this case, the appellant contends the employees were encouraged to attend the party, and because of the employers’ position of authority or control over the employees, a subtle coercion, or perhaps a requirement, existed for the employees to attend. Appellant urges that, unlike in the social-host setting, there is an added pressure for an employee to drink alcohol at a company party in order to please the employers. Because of this added authority, control and pressure involved in employer/employee relationships, the appellant urges this court to find the employers responsible for any negligence that results from an employee drinking alcohol at an employers’ function. We must decline the appellant’s urgings, because we find them to be erroneous and contrary to this court’s prior opinions.

In view of today’s present social values, we would suggest that it may be as acceptable to refuse alcohol as it is to drink. In any event, the appellant’s argument that an employer expects an employee to drink, much less drink to the point of intoxication, is based more on speculation than fact. Nonetheless, the appellant’s argument has failed to show this court why this case warrants a different holding than those we reached in our earlier decisions.

First, even when this court accepts as true the allegations contained in appellant’s complaint, that the appellees were negligent, the appellant’s argument ignores the basic reason upon which this court has repeatedly denied civil liability in cases involving the sale or giving of liquor to minors or intoxicated persons. This court has held that it is the person’s own consumption, not the person’s act in furnishing the alcohol, that is the proximate cause of any resulting accident and injuries. See, e.g., Milligan, 289 Ark. 129, 709 S.W.2d 409. While the appellant argues the control or economic compulsion an employer has over an employee should be viewed differently, we are unaware of any authority that makes such a distinction, nor do we believe such a distinction is a valid one.

Appellant cites several cases from other jurisdictions for the proposition that an employer/employee relationship in these intoxication situations should be treated differently. Chastain v. Litton Systems, Inc., 694 F.2d 957 (4th Cir. 1982); Gariup Constr. Co., Inc. v. Foster, 519 N.E.2d 1224 (Ind. 1988); Dickinson v. Edwards, 105 Wash. 2d 457, 716 P.2d 814 (1986). The Chastain and Dickinson cases fail to support appellant’s claim and instead impose civil liability as to employers in situations where the doctrine of respondeat superior was shown to exist, i.e., where an employee’s attendance and consumption of alcoholic beverages could reasonably be considered to be within the scope of his employment. Neither of these decisions speaks in terms of pressures being imposed on employees to drink at a company function. Significantly, the appellant in the present case offers no argument that any of the employees here were acting within the scope of their employment when the appellees hosted their employee party.

On the other hand, the Indiana Supreme Court in the Foster case did mention the influence and control an employer had over an employee when discussing that employer’s potential liability for the negligence of an inebriated employee who left the party in his car and ran head-on into the plaintiffs vehicle. However, the Indiana court also discussed the employer’s liability in terms of the employer’s violation of a state law, comparable to Arkansas’s law, which makes it unlawful to sell or give away an alcoholic beverage to an intoxicated person. Arkansas courts, unlike Indiana’s, have steadfastly rejected the contention that a violation of such a state law was intended to change the common law rule of nonliability. In other words, Arkansas courts have systematically held that a person’s‘selling or giving of intoxicating liquor to an intoxicated person is not the proximate cause of an accident which is later caused by that intoxicated person.

In conclusion, we previously have recounted that it is the General Assembly that must impose liability on those who sell or give away alcohol to minors or intoxicated persons who in turn cause injuries to themselves or others. In Yancey v. Beverage House of Little Rock, this court said, Justice Hickman writing, that, on some questions of legal liability, we have deferred to the legislature. 291 Ark. at 218, 723 S.W.2d at 827. Nothing has changed that would cause us to view this legal and social issue any differently than the way we viewed the matter in Yancey and our other prior decisions.

For the reasons stated hereinabove, we affirm the trial' court’s dismissal of the appellant’s complaint.

Purtle, J., not participating.

       This is the second appeal in this case. The first appeal Was dismissed by this court for lack of an appealable order. Rone v. Little, 293 Ark. 242, 737 S.W.2d 152 (1987). The defendant, Little, who was the party remaining in the law suit, was dismissed from the cause after our ruling.


author: Per Curiam. John I. Purtle, Justice,

text:
    Donald KEY v. STATE of Arkansas
    RC 88-48
    759 S.W.2d 567
    Supreme Court of Arkansas
    Opinion delivered November 14, 1988

      Donald Key, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petitioner Donald Key pleaded guilty to seven felony charges in Montgomery County and two felony charges in Polk County. He subsequently filed a timely petition pursuant to Ark. Code Ann. § 16-190-111 (1987) to “correct and reduce” the sentences. The petition was denied on February 12, 1988. A timely notice of appeal was not filed with the circuit clerk of either Montgomery or Polk County, and the petitioner now seeks a belated appeal.

In June petitioner sought to file in this court a petition for writ of mandamus seeking an order to compel the circuit clerks to take some action on a notice of appeal which he alleged had been timely filed. He submitted with the mandamus petition a copy of an unfilemarked notice of appeal which bore notations that a copy of it had been mailed to the circuit judge and the Arkansas Court of Appeals. It is not entirely clear from the motion for belated appeal whether the petitioner is now contending that he mailed the notice of appeal to the clerks, who did not receive it, or whether he mailed the notice of appeal to the judge only. The record, however, contains a letter to the clerks dated March 17, 1988, in which he said that he had mailed the notice of appeal to them. This letter which was not mailed until after the time for filing a timely notice of appeal had passed cannot be relied on as proof that the petitioner actually mailed the notice of appeal because he provides no other verification to establish that he in fact mailed the notice of appeal.

The dissent cites Houston v. Lack, 56 U.S.L.W. 4728 (June 24,1988), for the proposition that a notice of appeal is considered “filed” by a pro se prisoner under the federal rules of procedure when he delivers it to prison authorities for mailing. That case was no more than an interpretation of Federal Rules of Appellate Procedure 4(a)(1) which is inapplicable in this case.

There is a presumption that a letter mailed was received by the person to whom it was addressed. Skaggs v. State, 287 Ark. 256, 697 S.W.2d 913 (1985); Moore v. State, 285 Ark. 321, 686 S.W.2d 790 (1985). Petitioner’s bare assertion in the motion for belated appeal that he mailed a timely notice of appeal to the “circuit court” offers nothing to rebut that presumption.

The allegation that a notice of appeal has been mailed without some substantiation is not good cause to grant a belated appeal. Alexander v. State, 282 Ark. 216, 667 S.W.2d 366 (1984). As we said in Alexander v. State, supra, if it were, there would be no point in setting up rules of procedure since the procedural requirements could be circumvented by a simple claim that the petitioner’s failure to comply with the rules was caused by the post office. We also noted in Skaggs v. State, 287 Ark. at 261:

Since the litigant who mailed the item has the burden of proving that he mailed it, it is advisable for persons mailing notices of appeal or other material which must be filed within a designated period to use certified mail, return receipt requested. A return receipt would provide proof sufficient to establish the date of mailing and the place and date of receipt.

It may be that petitioner mailed a copy of the notice of appeal to the circuit judge, but the circuit judge was not obligated to determine whether the original notice of appeal was received by the clerks since the rules for appellate procedure require that a notice of appeal be filed with the circuit clerk. Ark. R. App. P. 3(a), Ark. Code Ann. Court Rules (1987). All litigants, including those who proceed pro se, must bear the responsibility for conforming to the rules or demonstrating good cause for not doing so. We have consistently held that ignorance of the rules of appellate procedure is not in itself good cause to grant a belated appeal. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); Grain v. State, 280 Ark. 161, 655 S.W.2d 425 (1983).

Motion denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority opinion correctly recites the rule that there is a presumption that a letter mailed was received by the person to whom it was addressed. The petitioner submitted an unfiled copy of his notice of appeal. He could not have done otherwise. He made a note on the notice of appeal that copies had been mailed to the trial judge and to the Court of Appeals. This action by him is as valid as a certificate of service on an attorney’s file copy. The residents in the Arkansas Department of Correction are not equipped with the latest facilities for complying with every detail of the ever-changing rules and regulations of the courts. In the best interests of society and of justice, we should consider substantial compliance by inmates as sufficient. We should expect no more of this petitioner than we do of practicing attorneys. He was in no position to drop by the courthouse and have the clerk file-stamp his copy. He submitted proof that he had mailed the motion to the clerk and other proper parties. That, quite simply, is all that should be required of him.

Notice of appeal is “filed” by a pro se prisoner when he delivers it to prison authorities. Houston v. Lack, 56 U.S.L.W. 4728 (June 24, 1988). If we follow Houston we do not have to search for a way to deny this appeal because there is no way to do so under the facts in this case. The majority evades the real issue here by limiting the Houston opinion to federal prisoners. I am of the opinion that Due Process applies to an individual regardless of whether he is incarcerated by the United States or a state.


author: Jack Holt, Jr., Chief Justice.

text:
    Richard G. BENNETT v. STATE of Arkansas
    CR 88-57
    759 S.W.2d 799
    Supreme Court of Arkansas
    Opinion delivered November 21, 1988

      Martin, Vater, Karr & Hutchinson, by: W. Asa Hutchinson, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Richard G. Bennett, was convicted on charges of first degree murder and was sentenced to life imprisonment. On appeal, Bennett argues the court erred: (1) in not directing a verdict based upon insufficiency of the evidence; (2) in admitting the deposition testimony of witnesses for the State when there was no showing that the witnesses were unavailable for trial; (3) in not declaring a mistrial when the prosecution introduced a statement by Bennett not provided to the defense during discovery; (4) in admitting evidence in violation of Rules 401, 403, and 404(b) of the Arkansas Rules of Evidence; (5) in allowing cross-examination of witnesses for the defense concerning Bennett’s marriages; and (6) in not declaring a mistrial due to improper comments by the prosecutor during his opening statement.

We reverse and remand because prejudicial error occurred when the court allowed the State to introduce the deposition testimony of material witnesses not shown to have been unavailable for trial. Bennett’s remaining points are discussed to the extent they are relevant to a second trial.

Bennett’s wife Marcia drowned in the Arkansas river on March 25, 1978. Bennett, the only eyewitness to the drowning, claimed that he and his wife had been fishing from an unfinished bridge near Morrison Bluff when Marcia fell from the bridge to the river below. At the time, the weather was misty, it was near freezing, and the river was flooding. Also, it was nighttime, and the wind was strong. Bennett told police that he first tried to rescue his wife by throwing her a rope.

Bennett’s attempts at rescuing Marcia with the rope proved unsuccessful. Apparently, he went to the couple’s car to get help while Marcia clung to one of the bridge supports or piers. Hearing his wife scream, Bennett returned but Marcia was no longer visible. Allegedly, Bennett jumped from the bridge into the river to save his wife. He later told authorities that he went for help after failing to locate Marcia.

Despite dragging operations and the efforts of an out-of-state diving team, Marcia Bennett’s body was not found until April 4 when it surfaced near the bridge several hundred feet from where the alleged accident occurred. The medical examiner concluded that the cause of death was drowning, but he found no evidence that Marcia Bennett had been forcibly drowned and discovered no sign of external or internal injuries.

SUFFICIENCY OF THE EVIDENCE

Bennett requested that the trial court direct a verdict on grounds that there was insufficient evidence to support a conviction for first degree murder. The motion was denied. Bennett argues that the court erred. We disagree.

A challenge to the sufficiency of the evidence in the lower court and on appeal requires that this court address that issue even though the case is being reversed and remanded on other grounds. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In considering the question, however, any errors allegedly committed by the trial court are disregarded. Id.

The issue is whether the verdict is supported by substantial evidence. Substantial evidence, whether direct or circumstantial, must be of sufficient force that it will, with reasonable and material certainty, compel a conclusion one way or the other. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). It is necessary to ascertain only the evidence favorable to the appellee and only that testimony which actually supports the verdict of guilt. Id.

The State’s case was built entirely upon circumstantial evidence, which can be sufficient to sustain a conviction as it may constitute substantial evidence. Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987). In order for circumstantial evidence to be sufficient to support the finding of guilt in a criminal case, it must exclude every other reasonable hypothesis consistent with innocence. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). However, whether the evidence excludes every other reasonable hypothesis is for the fact finder to determine. Id.

In the main, the State’s proof was based on inconsistent statements made by Bennett to various authorities on separate occasions and on inconsistencies between those statements and the physical evidence obtained by officers investigating the drowning.

Dub Hamilton, the former sheriff of Logan County, was one of the first officers to interview Bennett. In a statement to Hamilton on March 26, Bennett described the first few moments before the incident as follows:

Marcia and I were fishing side by side on the bridge. We had fished quite some time and she was cold. I told her we may as well quit. I reeled in one pole. As I was preparing to take the bait off and put the pole up, Marcia took a couple of steps toward her pole. The next thing I heard her yell and when I looked up, her and the lantern was gone.

Bill Kimbriel, Hamilton’s chief deputy, testified that he did not recall that the second pole was rigged to fish when he found it on the bridge near where Marcia Bennett allegedly fell.

In a separate statement made on March 27 to Kimbriel and to John Bailey, a former criminal investigator for the Arkansas State Police, Bennett’s story changed. He told Bailey that he had rigged his wife’s pole for fishing and had returned to the car to get some more fishing tackle when he heard his wife scream. Already at the car, Bennett turned around and Marcia was gone from the bridge. Some three months later when visiting with Doug Stevens of the Arkansas State Police, Bennett again changed his story to reflect the earlier version given to Sheriff Hamilton.

There were other inconsistencies. At trial, Hamilton testified that on the night of March 25 he had noticed Bennett’s glasses had mud with water on them. Bennett could not explain how his glasses had stayed on after he supposedly jumped from the bridge to the water below and then swam from pier to pier in search of his wife.

The height of the bridge was measured at 24 to 27 feet depending on the point of measurement on the bridge. The depth of the water around the bridge was estimated at three to five feet with isolated pools near the bridge supports measuring between eight to ten feet. At least once, Bennett maintained that he had not hit bottom when he jumped from the bridge. Deputy Sheriff Kimbriel testified from experience that a jump of 27 feet into water three to five feet deep would not only have caused Bennett to hit bottom but that the jump would certainly have buckled Bennett’s knees and jarred his head upwards and that it would have been impossible for Bennett’s glasses to stay on.

Bennett had also indicated to the officers that the current around the bridge had been very strong. Kimbriel testified that there was no current in the area. Hamilton also testified that there was no current in the waters surrounding the bridge near Morrison Bluff.

In light of evidence concerning the lack of current in the river, the State’s case emphasized that Marcia Bennett’s body was not discovered until it surfaced four to five hundred feet from where Bennett claimed Marcia had fallen into the water nine days earlier. Hamilton testified that when the body surfaced, it remained absolutely stationary until removed by the medical examiner. Further emphasis was placed upon the fact that the body was not discovered anywhere near the site of the alleged fall despite extensive dragging operations.

Danny Sorey, an emergency medical technician, attended to Bennett for possible hypothermia or exposure on the night of the incident. Sorey testified that Bennett had been wearing slip-on type shoes, slacks, a tee shirt, and a shirt. Bennett told Sorey that he had been in the water for an hour or more.

Sorey testified that Bennett showed no signs of hypothermia and that his condition (i.e., body temperature, behavior, etc.) was inconsistent with Bennett’s statement that he had been in the icy water for an hour or more. In his subsequent statement to Investigator Doug Stevens, Bennett stated that he could not remember how long he had been in the river.

Further testimony by Sorey revealed that Bennett’s shoes, although wet, did not contain any mud or other residue from the muddy water or the river bottom. Bennett’s wallet was wet, but the contents were dry.

Sorey indicated that Bennett was primarily concerned for the safety of about $800.00 in bills in his wallet and that Bennett never expressed sorrow about the possible death of his wife. Bennett also told Sorey that at one point he had “gotten ahold of his wife” but that the current pulled her away, a fact which Bennett failed to relate to either Kimbriel, Hamilton, or Bailey.

At trial, both Kimbriel and Hamilton described the clothing found on Marcia Bennett’s body after it surfaced on April 4. She was dressed in thermal underwear, pants, a wool shirt, two sweaters, boots, and gloves. Officer Hamilton considered it significant that Marcia Bennett was found wearing gloves in light of statements by Bennett that when Marcia fell from the bridge into the water Bennett had told her to remove her jacket and a blanket, which she allegedly did. (Officers later recovered both the jacket and the blanket.) Hamilton testified that he thought it would have been very difficult for Marcia Bennett to remove her jacket in the water while still wearing the gloves found on her nine days later.

In Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984), this court affirmed a sentence of life imprisonment for first degree murder where the State’s evidence was entirely circumstantial. We stated that guilt may be proved even in the absence of an eyewitness to the crime, and we emphasized that false and improbable statements explaining suspicious circumstances are admissible as proof of guilt. Id. at 358. New statements of law have greater relevance to the evidence presented to the fact finder in the case at bar.

The State introduced additional evidence which was consistent with Bennett’s guilt but which we need not detail in great length. Bennett’s former girlfriend, Connie Mosier, testified by deposition that she had accompanied Bennett to the Morrison Bluff bridge prior to his marriage to the victim and that Bennett had commented, “This would be a good place to kill someone.” Don Buckner, Bennett’s insurance agent from Ohio, testified by deposition that Bennett called several times prior to the 1978 Arkansas trip to see if an insurance policy on Marcia Bennett’s life had been approved and had come into the office. According to Buckner, Bennett picked the policy up on or about the day the couple left for Arkansas from Ohio. Bennett was the named beneficiary. Buckner also testified that Bennett was upset (after Marcia’s death) when he discovered that the policy was not of the double indemnity type.

Based on the foregoing, we conclude that there is substantial evidence to support the verdict of guilt. As such, we find no error in the trial court’s refusal to direct a verdict in Bennett’s favor.

INTRODUCTION OF DEPOSITION TESTIMONY

Before trial, the court allowed the defense to depose one of its out-of-state witnesses on grounds that the witness would be unavailable for trial due to recent surgery. Thereupon, the State sought to depose several of its out-of-state witnesses absent any showing that they would be unavailable at trial. The court granted the State’s request as to witnesses Connie Mosier and Don Buckner even though it was conceded that the State could probably secure the presence of these witnesses at trial. Bennett’s counsel objected, but the objection, which was renewed before trial and just prior to introduction of the depositions, was overruled.

The depositions of Connie Mosier and Don Buckner were admitted pursuant to the provisions of Ark. Code Ann. § 16-44-202(d)(2) (1987), which provides:

At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears . . . [t]hat the witness is out of the State of Arkansas unless it appears that the absence of the witness was procured by the party offering the deposition.

The trial court’s conclusion that deposition testimony is permissible any time a witness is out-of-state overlooks the title, purpose, and general provisions of section 16-44-202.

Ark. Code Ann. § 16-44-202 is entitled “Deposing witnesses upon showing of inability to attend trial — Use of depositions.” Subsection (a) states:

If it appears that a prospective witness may be unable to attend or be prevented from attending a trial or hearing, that his testimony is material, and that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may order. . . that his testimony be taken by deposition. [Emphasis ours.]

Subsection (a) makes clear that there must be some showing prior to trial as to the inability of the witness to attend before the court can order that the testimony of the witness be taken by deposition. Subsection (a) further requires a showing that taking of the deposition is necessary to prevent a failure of justice. If both requirements are satisfied, the court may, under subsection (d)(2), allow use of the deposition at trial if the party offering it shows that its witness is now dead, is out of the state, cannot attend because of sickness or infirmity, or failed to attend despite issuance of a subpoena. Here, the State not only failed to show that its witnesses could not attend trial and that there would be a failure of justice if the depositions were not permitted, but it was actually conceded that the State could obtain the presence of the witnesses at trial.

Bennett also argues that introduction of the deposition testimony of Connie Mosier and Don Buckner violated his constitutional right of confrontation. The State responds that a defendant has two types of protection under the confrontation clause — the right to face the witnesses against him, and the right to cross-examine those witnesses. The State argues both rights were protected because Bennett’s counsel was present when the witnesses were deposed, he was able to cross-examine them, and his cross-examination was with knowledge of the pending trial at which the depositions would be used. This position ignores a crucial point — the inability of the jury responsible for deciding a defendant’s fate to judge credibility by observing the demeanor of the witnesses who must sit face to face with the accused at trial.

In Lackey v. State, 288 Ark. 225, 703 S.W.2d 858 (1986), the State had failed to make a “good faith effort” to obtain the presence of a witness whose transcribed testimony from a former trial was introduced at a subsequent trial. This court stated:

While we do not renege on our conclusion that the Sixth Amendment does not require the confrontation with every witness every time a criminal defendant is retried, we find this witness’ testimony to have been so significant as to require that the jury in whose hands the fate of the appellant rested be allowed to observe the confrontation so as to see the witness’ demeanor and make its determination with respect to the matters addressed to him.

The rationale expressed in Lackey is equally applicable here. The deposition testimony of Connie Mosier and Don Buckner was obviously damaging to Bennett, and it was especially critical that the jury be able to observe these witnesses on the stand. It was error to allow their testimony by deposition without any showing that the witnesses could not attend trial.

Because we find that the trial court erred in its interpretation of section 16-44-202 and that it should not have allowed the State to take the depositions, we do not address Bennett’s other argument to the effect that section 16-44-202 is unconstitutional as applied.

STATE’S FAILURE TO DISCLOSE STATEMENT

Following the State’s case in chief, the defense put on several witnesses — including Bennett. Bennett again claimed that the drowning had been accidental. To rebut that testimony, the State called the victim’s daughter, Gloria Good (Bennett’s stepdaughter) . Good, who had taken the stand earlier, testified as a rebuttal witness in part as follows:

Q. Did Richard Bennett ever tell you how your mother had died?
A. Well, one time when he was hollering at me, he said — this was after — in a few weeks when we were still living with him, he told me that my mom hadn’t really just fallen oif the bridge, that she deliberately jumped off the bridge because she was tired of being my mother.

Bennett’s counsel objected that the State had failed to disclose this prior statement during discovery notwithstanding requests for all such statements. Counsel also requested a mistrial, and in the alternative asked that a cautionary instruction be given. The court determined that the objection was well taken but that a mistrial was not warranted.

At the close of rebuttal, the defense renewed the motion for a mistrial. At this point the State advised the court that Gloria Good had notified the prosecution of Bennett’s statement only minutes before she testified as a rebuttal witness. The court again denied the motion for mistrial.

In Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981), the defendant, like Bennett, filed a timely request pursuant to Rule 17.1(a)(ii) of the Arkansas Rules of Criminal Procedure, which provides:

Subject to the provisions of Rules 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request . . . any written or recorded statements and the substance of any oral statements made by the defendant or a codefendant.

In Earl, as here, the defendant took the stand in his own defense. Earl denied ever making an inculpatory statement concerning the crime charged — other than a challenged confession. During cross-examination, he was asked if after his disputed confession he had stated to one officer that “he felt a lot better about getting that off his chest.” The defense objected on the grounds that the State failed to disclose the prior statement during discovery. On rebuttal, the officer testified that the defendant in fact made the statement.

This court concluded in Earl that if our discovery rules are to be meaningful they must be complied with where: (1) there has been a timely request; (2) there is no finding of compliance by the State; and (3) there is prejudice to the defense. Id. at 13. In Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), we held that Rule 17.1 imposes a duty upon the State to disclose to defense counsel, upon timely request, all material and information to which a party is entitled in sufficient time to permit his counsel to make beneficial use thereof. Any interpretation of Rule 17.1 to the contrary would indeed make a farce of the rule.

The State relies upon the prosecution’s claim that it was unaware of the undisclosed statement by Bennett until moments before Gloria Good testified as a rebuttal witness. However, A.R.Cr.P. Rule 19.2 in relevant part provides:

If additional material or information is discovered during trial, the party shall notify the court and opposing counsel of the existence of the material or information.

As such, there is a continuing duty of disclosure.

Rule 19.4, like Williamson, mandates that all materials and information to which a party is entitled must be disclosed in time to permit counsel to make beneficial use thereof. Neither the trial court nor Bennett’s counsel had notice of the information subject to disclosure until after it was presented to the jury. In Nelson v. State, 274 Ark. 113, 622 S.W.2d 188 (1981), we pointed out that in “a line of cases we have consistently, without exception, held that the State must comply with the pretrial discovery rules.” It is not that the evidence is necessarily inadmissible; rather, the problem is in the court’s failure to enforce the discovery rules.

The State contends that there was no duty to disclose because Gloria Good was a genuine rebuttal witness and that Bennett is also unable to show how he was prejudiced. McDaniel v. State, 294 Ark. 416, 743 S.W.2d 795 (1988); Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980); and Renton v. State, 21A Ark. 87, 622S.W.2d 171 (1981). We find the State’s reliance on the “rebuttal witness” argument unpersuasive, Earl, supra, and we conclude that the evidence of prejudice is overwhelming.

The challenged statement by Gloria Good was the only evidence of any statement or act by Bennett which contradicted his other statements that the drowning had been accidental. The testimony likely had a devastating effect. Moreover, the court conceded that defense counsel’s objection to the testimony was well taken. Had the State disclosed the statement to court and counsel before the testimony was elicited, as is required by our rules of discovery, counsel for the defense no doubt would have convinced the court that the testimony should not be admitted. See also A.R.Cr.P. Rule 19.7.

In Earl, supra, the trial court refused to grant defendant’s motion for a mistrial even though it was evident that the State did not comply with our discovery rules. We reversed. The State’s failure to comply with the rules of discovery in this case was of equal magnitude.

“HIT MAN” TESTIMONY

Connie Mosier, Bennett’s former girlfriend, lived with Bennett sometime in 1977. At that time, Bennett was married to Marilyn Bennett and the couple was getting a divorce. However, Bennett had not yet met his future wife Marcia — the drowning victim in this case. Connie Mosier’s deposition was introduced at trial and it contained the following testimony:

He [Bennett] said he was going... to make a phone call. . . . [ W] hen he came back out of the phone booth, he said that he had made a phone call to somebody to have his wife killed, and that all he had to do was leave the keys, mail the keys either to this man or leave them with this man, to her apartment and he would take care of everything.

The testimony concerned Bennett’s former wife Marilyn, and both before trial and prior to the introduction of Connie Mosier’s deposition Bennett’s counsel argued that admission of the testimony violated Rule 404(b) of the Arkansas Rules of Evidence, which provides:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The trial court overruled the objections on grounds that the evidence was admissible pursuant to the “other purposes” exception contained in Rule 404(b).

Because the proof may develop differently in the event of retrial, we do not rule on the propriety of the court’s decision to admit the testimony. We do point out, however, that the issue is a close one. Ordinarily, the trial judge has wide discretion in admitting evidence of other crimes or wrongs and his decision will not be reversed absent an abuse of discretion. Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). Other crimes evidence is admissible if it is independently relevant and the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988).

Obviously, the testimony was highly prejudicial. It is not so obvious that the evidence had great probative value, nor is it clear that the evidence truly provided proof of motive, plan, or knowledge. If the State’s case was built around the theory that Bennett murdered his wife Marcia for financial gain, we note that there was not one shred of evidence that he stood to gain financially from the proposed “hit man” killing of his former wife Marilyn.

We trust that at a second trial both court and counsel will carefully weigh the need for admitting this evidence. See Rowdean v. State, 280 Ark. 146, 655 S.W.2d 413 (1983).

“GOOD PLACE TO KILL SOMEONE” INSURANCE TESTIMONY

In her deposition testimony, Connie Mosier alleged that she had on one occasion traveled to Arkansas with Bennett and while at the Morrison Bluff river bridge Bennett allegedly commented, “This would be a good place to kill someone.” Mosier also testified concerning attempts by Bennett to obtain life insurance for her with Bennett as the designated beneficiary. Bennett’s counsel objected on grounds that the probative value of the evidence was outweighed by unfair prejudice. The court admitted the evidence over counsel’s objections.

Whereas A.R.E. Rule 402 generally provides that all relevant evidence is admissible, Rule 403 provides that relevant evidence may be excused if its probative value is substantially outweighed by the danger of unfair prejudice. The question of prejudicial effect versus probative value is a matter addressed to the discretion of the trial judge, and on appeal this court will not disturb the trial court’s decision in the absence of manifest abuse of that discretion. See e.g., Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988).

Again, because the proof may develop differently in the event of retrial, we do not rule on Bennett’s argument that the trial court erred in admitting the evidence.

MARRIAGES

At trial, the defense called several witnesses to testify concerning Bennett’s standing in the community and his general character for truthfulness. To rebut this testimony, the State was allowed to question the witnesses as to whether they were aware of Bennett’s marital background — both past and present. The primary objection by the defense was that the State could have rebutted the credibility of Bennett’s character witnesses without touching on the sensitive area of Bennett’s many marriages. We agree.

A review of the record and the arguments of both parties convinces us that the trial court abused its discretion as to the scope of the State’s cross-examination on this issue. Similar questioning should not be permitted on retrial if its sole purpose is to test how well character witnesses for the defense are acquainted with Bennett.

PROSECUTOR’S COMMENTS DURING OPENING

Prior to trial of this case, a wrongful death judgment was entered against Bennett in Ohio in connection with the same incident. Before Bennett’s trial for first degree murder in this state, the trial court directed the State not to make reference to the style of the Ohio judgment, the verdict, or the findings of the jury. However, during his opening statements, the prosecutor made the following comment:

Richard Bennett denied knowing that he was even the beneficiary of Marcia Bennett’s life insurance policy until after the accident occurred. Now, they had a trial, and this is a transcript of the trial, in which Richard Bennett testified to under oath ....

Bennett’s counsel moved for a mistrial, which was denied by the court.

We find that the comment was highly prejudicial under the circumstances and assume that the State will not attempt, nor will the trial court allow, similar error to occur in the event of retrial.

Reversed and remanded.


text:
    McILROY BANK AND TRUST, an Arkansas Banking Corporation v. Paul A. MAESTRI
    88-198
    759 S.W.2d 808
    Supreme Court of Arkansas
    Opinion delivered November 21, 1988

      Robert R. Estes, for appellant.

      Cypert, Crouch, Clark & Harwell, by: Larry J. Thompson, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal is from the trial court’s judgment discharging appellee Paul A. Maestri from liability on a promissory note held by the appellant, McIlroy Bank and Trust, following an extension of the note to which Maestri, an accommodation maker, did not consent. The trial court also determined that the extension materially altered the provisions of the note. McIlroy argues the court should have found that Maestri consented to the extension and that our Uniform Commercial Code requires that alterations of the note must have been not only material but also fraudulent.

We affirm because it is clear under our Uniform Commercial Code that Maestri was discharged once McIlroy extended the note a second time without Maestri’s consent. As such, it is unnecessary to consider the remaining points raised by the parties.

The promissory note in issue was executed on February 2, 1985. The amount of the note was $15,000.00, which was to be paid on demand. If no demand was made, payment was to be made after three months. The stated interest rate was thirteen percent (13%) per annum. The note identified appellant McIlroy as the lender and Danny Maestri as the borrower. In the lower right hand corner of the note two signatures appear — that of Danny Maestri and that of the appellee Paul Maestri.

Our first concern is the capacity in which Paul Maestri signed the note. The trial court correctly determined that Maestri signed as an accommodation maker. Ark. Code Ann. § 4-3-415 (1987) deals with the contract of an accommodation party. Subsection (3) provides:

As against a holder in due course and without notice of the accommodation oral proof of the accommodation is not admissible to give the accommodation party the benefit of discharges dependent on his character as such. In other cases the accommodation character may be shown by oral proof.

Under the facts before us, McIlroy was a holder, not a holder in due course. As such, oral proof of the accommodation status of Paul Maestri was permissible. Testimony by Danny Maestri and Paul Maestri clearly established that Paul Maestri signed the note only to lend his name to the borrower, Danny Maestri, so as to facilitate approval of the loan. We also find instructive the following language from Womack v. First State Bank of Calico Rock, 21 Ark. App. 33, 728 S.W.2d 194 (1987):

[T]he most significant element in determining whether a party to a note is an accommodation party is the intention of the parties . . . and where a person ‘receives no direct benefit from the execution of the paper it is likely that he will be regarded as an accommodation party.’

Our review of the record supports the trial court’s finding that Paul Maestri received no benefit from the proceeds of the note. In this regard, see White & Summers, Uniform Commercial Code, § 13-13 (2d ed. 1980).

In sum, Maestri signed as an accommodation maker. If he is liable on the note, it is only in the capacity in which he signed. Ark. Code Ann. § 4-3-414(2) (1987).

Our next concern is what effect extensions of the note had on Paul Maestri’s liability as an accommodation maker. On June 4, 1985, the maker of the note, Danny Maestri, signed an extension agreement extending the due date of the original note for a period of three months with interest on the remaining principal at 12.5 % per annum. Paul Maestri gave his consent to that extension by including his signature. A second extension agreement was signed by both Maestris on August 26,1985, which extended the note for an additional three months until November 27, 1985.

Sometime in November, Mcllroy’s loan officer, George Edwards, requested that Paul Maestri sign a third extension agreement. Maestri indicated that he did not want to extend his obligation on the note any further and that the bank should collect from the borrower, Danny Maestri. Later, a third extension agreement was executed between the bank and Danny Maestri extending the note for an additional three months without Paul Maestri’s signature agreement.

On April 29, 1986, a fourth extension agreement was executed by the bank and Danny Maestri, apparently without notice to Paul Maestri. This extension also provided that the note would be due on demand. However, if no demand was made, payment was to be in 23 installments of approximately $659.00 beginning on May 15, 1986, and ending on April 15,1988, with interest on the remaining principal at 11.50%. After Danny Maestri defaulted and filed in bankruptcy court, McIlroy brought suit against Paul Maestri.

The issue before us turns on the defenses which the accommodation maker, Paul Maestri, can assert against the holder of the note, McIlroy. Ark. Code Ann. § 4-3-606(1)(a) (1987) provides, in part:

The holder discharges any party to the instrument to the extent that without such party’s consent the holder:
Without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument .... [Emphasis ours.]

The words “agrees to suspend the right to enforce” signify the granting of an extension of time for payment. Hence, the holder of the note, McIlroy, discharged any party to the instrument, including accommodation makers, to the extent that McIlroy granted an extension without the consent of the party or without an express reservation of rights. White & Summers, Uniform Commercial Code, § 13-14 (2d ed. 1980).

On the question of consent, Ark. Code Ann. § 4-3-118(f) (1987) provides:

Unless otherwise specified consent to extension authorizes a single extension for not longer than the original period. A consent to extension, expressed in the instrument, is binding on secondary parties and accommodation makers.

In other words, an express provision for consent in the McIlroy note would be binding on the accommodation maker, Paul Maestri, and would authorize one extension for a period not longer than the term of the original note, unless otherwise specified.

The note contains the following provision:

Obligations Independent — I understand that my obligation to pay this note is independent of the obligation of any other person who has also agreed to pay it. You may release any of us, release any security, waive any right you might have against any of us, extend new credit to any of us, renew this note, or all of the above, without affecting my obligation to pay the loan amount. [Emphasis ours.]

As against Paul Maestri, the language “renew this note” could be construed as consent, which in turn authorized a single extension in November 1985 for a term identical to that contained in the original note. However, we find nothing in the provisions of the note which would rebut the language of section 4-3-118(f) and lead to the conclusion that multiple extensions were authorized. Accordingly, Paul Maestri cannot be considered as having consented to an extension of the note in April 1986, and under sections 4-3-606(l)(a) and 4-3-118(f) he was discharged from liability on the note.

With reasoning not entirely clear, McIlroy argues that the language “renew this note, or all of the above” (emphasis added) amounts to consent to multiple extensions. The case of Gentry v. First American National Bank, 264 Ark. 796, 575 S.W.2d 152 (1979), is cited as support. McIlroy further contends that Paul Maestri’s conduct and signature agreement to the first two extensions operates to prevent his discharge on the note.

We find Mcllroy’s arguments as to course of conduct unpersuasive and not supported by the facts of record. Furthermore, our decision in Gentry v. First American National Bank is clearly distinguishable.

In Gentry, the language of the relevant agreement was as follows:

This guaranty is continuing, absolute and unconditional.. . . Liability hereunder is not affected or impaired by any surrender, compromise, settlement, release, renewal, extension, authorization, substitution, exchange, modification or other disposition .... [Emphasis ours.]

It was specifically recognized in Gentry that this language meant the guarantor’s liability was not affected by “renewals or extensions.” Id. at 799. No such language is before us now. See also In re Sanders, 75 B.R. 757 (Bkrtcy. W.D. Ark. 1987) (construing language identical to that contained in the McIlroy note).

Because we conclude that Paul Maestri was discharged under the provisions of Ark. Code Ann. §§ 4-3-606(1 )(a) and 4-3-118(f), we find it unnecessary to consider the remaining points raised by the parties.

Affirmed.

Glaze, J., concurs.