text:
    Charles H. CRAMER and Leslie L. Cramer v. ARKANSAS OKLAHOMA GAS CORPORATION
    93-1049
    872 S.W.2d 390
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: James A. Arnold II and Gill A. Rogers, for appellants.

      Daily, West Core, Coffman & Canfield, by: Michael C. Carter, for appellee.
   .

David Newbern, Justice.

The issue in this appeal is whether a complaint stated a claim upon which relief could be granted. Ark. R. Civ. P. 12(b)(6). The complaint alleged that Arkansas Oklahoma Gas Corporation (AOG) negligently caused injury to trees in the process of constructing a gas pipeline on property it had taken through eminent domain proceedings for the purpose of constructing a pipeline. We hold the complaint was properly dismissed because a landowner who receives compensation for his property, as if taken in fee, is not entitled to further damages for injury to the property when the injury is due to negligent installation of equipment by the party who condemned it.

AOG, the appellee, attempted to negotiate an agreement with Charles H. Cramer and Leslie Cramer, the appellants, for an easement for a gas pipeline across the Cramers’ land. The Cramers expressed concern that the line would harm a group of red oak trees growing within the area of the proposed easement. AOG attempted to address the Cramers’ concerns by proposing an easement wider than the standard 20 feet so as to disturb the trees as little as possible while laying pipe.

The Cramers ultimately refused to grant the easement, and AOG exercised its power of eminent domain to condemn a 40-foot wide easement across the property as well as an adjacent 20-foot wide construction easement. The damages assessed in favor of the Cramers included recovery for the value of the 40-foot wide strip where the easement was to be placed, and which included the oak trees, and the rental value of the additional 20-foot wide construction easement.

The Cramers asserted their damages claim for injury to the trees by way of a counter-claim in the condemnation proceeding. The counter-claim was dismissed without prejudice by a consent order in which it was stated that the Cramers could file a subsequent negligence action. A summary judgment was entered in favor of AOG’s condemnation of the land and damages were awarded to the Cramers.

The Cramers then filed their negligence action. AOG moved to dismiss on the ground of res judicata. The action was dismissed, however, for failure to state a claim upon which relief could be granted. The order of dismissal stated, in part:

That no separate cause of action for negligence in the construction of the pipeline across the Plaintiffs’ property contained within the right-of-way easement condemned by the Defendant exists, as the Defendant, in paying fair market value for the taking, has paid for all damages which may result to the property contained within the easement as a result of the construction of its pipeline.

The complaint contended that AOG had, by agreeing to try to protect the trees, assumed a duty which it had then breached by its negligence. The Trial Court was correct in holding the complaint insufficient to state a claim upon which relief could be granted. AOG owed no such duty in view of having paid for the land as if purchasing the fee.

The Cramers’ primary citation is to John H. Parker Construction Co. v. Aldridge, 312 Ark. 69, 847 S.W.2d 687 (1993). In that case the landowner had entered into a negotiated agreement granting a “blanket easement” to a water users association to permit the laying of a water pipeline. The landowner then sued for damages to trees caused by negligent placement and installation of the pipeline. The Trial Court refused to instruct the jury that when landowners grant an easement they waive damages arising from the normal construction of the right-of-way and may recover only if they prove the work was done unnecessarily, negligently, or unskillfully. We held it was not error to refuse such an instruction.

The distinction between the John H. Parker Construction Co. case and this one is that here we do not have a negotiated easement but an eminent domain condemnation which required the condemning authority to pay full value as if taking the fee.

The owner of land which is condemned for the purpose of providing an easement is entitled to be paid the full value of the land embraced within the easement as if the fee had been taken. Baucum v. Arkansas Power & Light Co., 179 Ark. 154, 15 S.W.2d 399 (1929). In the Baucum case we noted that the condemning authority might be responsible in the future for negligent use of the easement, but in Arkla Gas Co. v. Burkley, 242 Ark. 662, 416 S.W.2d 263 (1967), we reasserted the rule that the owner of condemned land is entitled to its full value and said: “The rule. . .tends to eliminate future litigation over damages sustained by reason of future additional construction on the easement. ...”

While it is trae that the landowner is entitled to continue using the surface of the right-of-way for purposes not inconsistent with the easement, we have held that an injury which occurs to timber on the land when the construction occurs is not compensable separately. Arkansas Louisiana Gas Co. v. Maxey, 242 Ark. 698, 416 S.W.2d 701 (1967). We can think of no reason why the same rale should not apply to the trees in question here, and we have been cited to no authority which would be to the contrary.

Other jurisdictions are in accord with the rule that a landowner whose property is condemned is entitled to the market value of the property and is not entitled to separate damages resulting from destruction of crops, ornamental shrubs, or trees which may be injured in the process of constructing the easement because the value of those items is included in the damages awarded to the landowner when the land is condemned. See, e.g., Mississippi State Highway Comm. v. Viverette, 529 So.2d 896 (Miss. 1988); White v. Natural Gas Pipeline Co. of America, 444 S.W.2d 298 (La. Ct. App. 1960).

Affirmed.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Theresa POCKRUS, Benton County Tax Collector, and Shirley Sandlin, Benton County Tax Collector v. BELLA VISTA VILLAGE PROPERTY OWNERS ASSOCIATION
    93-531
    872 S.W.2d 416
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994

      George R. Spence, Deputy Prosecuting Attorney, for appellants.

      R. Douglas Schrantz, for appellee Bella Vista Village Property Owners Association.

      W. Paul Blume, for amicus curiae Arkansas School Board Assocation.

      Winston Bryant, Att’y Gen., by: Dinah M. Dale, Asst. Att’y Gen., for amicus curiae Assessment Coordination Division.
   Tom Glaze, Justice.

This appeal ensues from the Benton County Chancery Court’s decision to enjoin Theresa Pockrus, the Benton County Tax Collector, from collecting the 1991 ad valorem taxes owed by Bella Vista Village Property Owners Association. Those taxes were the result of a reappraisal and reassessment commenced in 1990. Benton County assessor, Shirley Sandlin, utilized a cyclical reassessment plan recommended by the Arkansas Assessment Coordination Division (ACD) which would permit Sandlin, with her limited staff, to complete within a five-year period, the reappraisal of all property located throughout the entire county. Surveys showed that Benton County’s annual assessment ratio was about to fall below the minimum required eighteen percent, and as a consequence, was in jeopardy of losing “state turnback” money.

Bella Vista Village filed suit, alleging that the collection of taxes based on the reassessment plan used by Sandlin and Pockrus was illegal. It asked further that the chancery court enjoin the collection of the 1991 ad valorem taxes until a proper countywide assessment is achieved. The chancellor granted the relief sought, and Sandlin and Pockrus bring this appeal.

The parties’ dispute centers on the ACD’s cyclical reappraisal plan. Based on that plan, Sandlin divided the county real estate parcels into four and one-half areas and each area was to be reassessed annually over a five-year period. Each area includes numerous taxing units (towns, school districts, improvement districts) which require the application of various millage rates. Under the plan, Bella Vista Village was the first area reassessed because it (1) had the largest number of parcels in the county, (2) had the greatest number of taxpayer complaints requesting assessment adjustments, and (3) contained the greater number of variances.

At trial, Bella Vista Village first contended that the cyclical reassessment plan used by Sandlin and Pockrus violated the Equal Protection Clause of the United States and Arkansas Constitutions. Bella Vista Village pointed out that, because its property would be reassessed the first year, it would pay immediately based on the new assessed value while the remaining four areas would continue to be taxed based on old assessment values. It argued this disparate treatment of taxpayers would exist for four years or until the fifth or last area is reassessed. The chancellor rejected this equal protection argument finding that Bella Vista Village had failed to show that varying economic conditions which might occur during the five-year reassessment scheme would not cause adjustments which would allow a constitutionally permitted “rough equality” in tax treatment for all real property owners. See Allegheny Pittsburgh Coal Co. v. County Comm’n of Webster County, West Virginia, 488 U.S. 336, 343 (1988).

Although the chancellor discarded Bella Vista Village’s first argument, he did find merit in its second contention that ACD’s recommended cyclical reassessment plan violates Ark. Const, art. 16, § 14, which incorporates most of Ark. Const, amend. 59. In his findings, the chancellor stated as follows:

Art. 16, § 14(a), and its enabling statutes, provide a safeguard that, if reassessment shall result in an increase in the aggregate value of taxable real and personal property in any taxing unit in this state of ten percent or more over the previous year, the rate of city or town, county, school district and community college district tax levied against the taxable real and personal property of each taxing unit shall, upon completion of the reappraisal, be adjusted or rolled back by the governing body of the taxing unit for the year for which levied, (the chancellor’s emphases)

After stating the foregoing, the chancellor found that Bella Vista Village’s parcels are partially located in three different school districts (taxing units), and under ACD’s cyclical reassessment plan, a complete appraisal or reassessment would not be performed during the plan’s first year in any of the three taxing units. Thus, he concluded ACD’s reassessment plan violated Amendment 59 because it prevented Bella Vista Village taxpayers from receiving the benefits of equalization of taxes (roll back in taxes) provided for and allowed under that Amendment. In sum, the chancellor held the reassessment plan or procedure the county assessor and collector used to revalue property and levy taxes was in conflict with the state constitution. He stated further that, under Amendment 59, every taxpayer has the right to review the comparisons between the increase in the aggregate value of taxable property in each taxing unit in the year in which the tax collection is levied to be confident that he is paying only his fair share of the tax burden.

While we would like to reach the merits of the trial court’s rulings, we find it impossible to do so because that court had no subject-matter jurisdiction of this matter. It is settled law that county courts have exclusive jurisdiction in all matters relating to county taxes. McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990); Ark. Const, art. 7, § 28. Nonetheless, there is no doubt that a court of equity may grant relief against a void or illegal tax assessment. Scott County v. Frost, 305 Ark. 358, 807 S.W.2d 469 (1991). In Cook v. State, 312 Ark. 438, 850 S.W.2d 309 (1993), this court set out a number of cases where the collection of taxes had been successfully enjoined under the illegal exaction provision. See Greedup v. Franklin County, 30 Ark. 101 (1875) (an attempt to collect a county levy in excess of the five mills allowed by the constitution); Lyman v. Howe, 64 Ark. 436, 42 S.W. 830 (1897) (a tax based upon an assessment not made by the assessor); Ragan v. Venhaus, 289 Ark. 266, 711 S.W.2d 467 (1986) and Merwin v. Fussell, 93 Ark. 336, 124 S.W. 1021 (1910) (attempts to collect taxes not properly voted by the people); McDaniel v. Texarkana Cooperage & Mfg. Co., 94 Ark. 235, 126 S.W. 727 (1910) (a tax levied by a county having no jurisdiction over the property); City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982) and Waters Pierce Oil Co. v. Little Rock, 39 Ark. 412 (1882) (taxes which were not authorized by the city’s delegated power of taxation).

Although illegal taxes can be enjoined by a court of equity, this court has also strictly adhered to the rule that, if the taxes complained of are not themselves illegal, a suit for illegal exaction will not lie. Miller v. Leathers, 312 Ark. 522, 851 S.W.2d 421 (1993); Schuman v. Ouachita County, 218 Ark. 46, 134 S.W.2d 42 (1950). The Miller court, quoting from Pledger v. Featherlite Precast Corp., 308 Ark. 124, 823 S.W.2d 852 (1992), stated the established rule that a flaw in the assessment or collection procedure, no matter how serious from the taxpayer’s point of view, does not make the exaction itself illegal. See also Scott County, 305 Ark. 358, 807 S.W.2d 469; McIntosh, 304 Ark. 224, 800 S.W.2d 431.

Unquestionably, the ad valorem property taxes assessed here against Bella Vista Village are authorized by law. See Ark. Const, art. 16, § 5. And Bella Vista Village does not object to the actual valuations (current market value) or tax formula used to calculate the 1991 taxes. Instead, it contends only that the reassessment and tax collection scheme used by Sandlin and Pockrus to collect these legal ad valorem taxes is unconstitutional. In other words, Bella Vista Village effectually questions only the reassessment procedure or plan employed by the county assessor and collector as being a flawed one. Because this case does not involve a void or illegal tax assessment, the chancery court was without power to hear this matter. Therefore, we must reverse and dismiss.

Corbin, J., not participating.

      Amendment 59 is now compiled in Ark. Const, art. 16, § § 14, 15 and 16.


text:
    STATE of Arkansas v. PULASKI COUNTY CIRCUIT-CHANCERY COURT
    93-948
    872 S.W.2d 854
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994
    [Rehearing denied May 2, 1994.]

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for petitioner.

      Gattis & Greene, P.A., Omar F. Greene, II, P.A. and War-ford & Broaddrick, P.A., by: Lloyd Warford, for respondent.
   Tom Glaze, Justice.

According to findings set out in a Little Rock Municipal Court order dated August 19, 1993, Eric Walter, seventeen years of age, was detained in jail based on “felony charges filed in that court.” Walter had been arrested on July 25, 1993, and had been “charged” as an adult in Little Rock Municipal Court with two counts of aggravated robbery and two counts of attempted capital murder. By its August 19 order, the municipal court denied Walter’s request to transfer his case to juvenile court, stating municipal court had no authority to do so under Ark. Code Ann. § 9-27-318 (Repl. 1993).

After the Little Rock Municipal Court’s order was entered, Walter’s counsel filed a petition for writ of habeas corpus and for injunctive relief in Pulaski County Chancery Court, and after a hearing, the chancellor ordered Walter’s release, stating the municipal court lacked jurisdiction to order his detention The chancellor further enjoined the prosecuting attorney from “charging any juvenile as an adult in any municipal court in the 6th District.” In its order, the chancery court also found that, by the time it had issued its order, the prosecuting attorney had filed Walter’s felony charges in circuit court, but even so, the court concluded Walter’s chancery case was not moot, since the issues involved were capable of recurrence. The state filed no appeal from the chancery court’s order. Instead, it chose to file with this court the state’s petition for writ of prohibition against the chancery court, asking us to bar that court from enforcing that part of the chancery court’s order enjoining the prosecuting attorney from filing felony criminal charges in municipal courts against juveniles who are to be tried as adults in circuit court. We granted the state a temporary stay of the chancellor’s order and requested the parties to file briefs.

The state frames the issues before us, by contending that the chancery court erred in holding municipal courts have no jurisdiction whatsoever over juveniles accused by the state of having committed felony criminal offenses. It further contends the chancery court had no jurisdiction to enter a continuing injunction against the prosecuting attorney, barring him from charging juvenile defendants in municipal courts with having committed felony criminal offenses. We initially note that the state’s general usage of terms such as “accused,” “charge” and “charging” without defining them or placing them in specific context, tends to cloud what happened in this case or what the state actually seeks to prohibit.

Recently, we made it very clear in Rhoades v. State, 315 Ark. 658, 869 S.W.2d 698 (1994), rehearing denied, (Supp. Opinion delivered on March 14, 1994), that the Juvenile Code provides that, when a case involves a juvenile sixteen years or older, and the alleged act would constitute a felony if committed by an adult, the prosecuting attorney has the discretion to file a petition in juvenile court alleging delinquency, or to file charges in circuit court and to prosecute as an adult. In Rhoades, we also referred to the well-settled law that felony charges in circuit court are required to be brought by indictment or information. Furthermore, this court in Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984), held that municipal courts are without jurisdiction to try felony cases. And finally, we have made it clear that, under Ark. Code Ann. § 9-27-313(b) (Repl. 1993), an officer taking a juvenile into custody must immediately take the juvenile before the court out of which the warrant was issued and that court shall decide whether jurisdiction is in juvenile court or circuit court under § 9-27-318. Rhoades, 315 Ark. at 660, 869 S.W.2d at 699.

While we think most of the parties’ arguments made here are sufficiently answered by a reading and understanding of these earlier decisions, we are unable to address the state’s arguments more fully, since we hold prohibition does not lie in this case. First, we are unable from the record before us to tell whether Walter was arrested pursuant to an arrest warrant, an arrest without a warrant made under ARCP Rule 4.1 and Ark. Code Ann. § 9-27-313 (Repl. 1993), or whether charges were actually filed in the Little Rock Municipal Court as was specifically stated in that court’s order. Obviously, this factual issue is relevant for us to know before being able to determine what role the municipal court performed in this matter. As pointed out, felony charges (information or indictment) must be filed and tried in circuit, not municipal, courts.

As this court has said repeatedly, a writ of prohibition is an extraordinary writ and is only granted when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted. Miller v. Loftin, 279 Ark. 461, 652 S.W.2d 627 (1983). In the present case, the chancery court would have had authority to grant Walter relief by writ of habeas corpus if the state had actually filed its charges by felony information or indictment against Walter in municipal court. By the same token, the chancery court may have otherwise lacked such power in other instances. However, it is impossible to determine from the record before us whether Walter was before the municipal court as a result of a reasonable cause arrest or perhaps, as a result of an arrest warrant. Regardless, the municipal court, even in these custody and arrest circumstances, must determine if the nature of the alleged crime is a felony so an appropriate charge or petition can be filed in circuit or chancery court as discussed above.

In sum, this court in Miller held that such a writ is a narrow, extraordinary writ which should not be granted even if part of the order is beyond the jurisdiction of the judge, since those questions can be properly raised on appeal. Miller, 279 Ark. at 463, 652 S.W.2d at 628. From the record before us, the chancery court appears to have had authority to issue relief in this matter even though under some circumstances (left undefined here) it might have acted beyond its jurisdiction. As pointed out earlier, the state did not appeal the chancery court’s order even though to have done so would certainly have afforded the state no harm, especially since it subsequently chose to file its felony charges against Walter in circuit court, rendering his case moot.

For the reasons given, we must deny the petition for writ of prohibition.

Corbin, J., not participating.

      The chancery court actually entered an order dated August 25, 1993, and an amended order dated September 14, 1993, which were essentially identical.


author: Donald L. Corbin, Justice.

text:
    John Eric ARCHER v. BENTON COUNTY CIRCUIT COURT, The Honorable Tom J. Keith
    CR 93-1284
    872 S.W.2d 397
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994

      Mashburn & Taylor, by: Scott E. Smith, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Petitioner, John Eric Archer, seeks a writ of prohibition against the Benton Circuit Court to prevent a trial on two counts of delivery of a controlled substance. The Benton Circuit Court denied petitioner’s motion to dismiss the charges on speedy trial grounds, and he now seeks a writ of prohibition in this court pursuant to A.R.Cr.P. Rule 28.1(d). This court has jurisdiction of cases of prohibition. Ark. Sup. Ct. R. l-2(a)(6). There is no merit to petitioner’s argument, and we deny his request for a writ of prohibition.

A criminal defendant’s constitutional right to a speedy trial is protected by Article VIII of the Arkansas Rules of Criminal Procedure (Rules 27 - 30). This court adopted Rule 28 for the purpose of enforcing the constitutional right to a speedy trial. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). Rules 28.1(c) and 28.2(a) require the state to bring a defendant to trial within one year from the date a charge is filed in circuit court, unless prior to that time, the defendant has been arrested and is in custody or lawfully at liberty, in which case the defendant must be brought to trial within one year from the date he or she was arrested. Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993). Rule 30.1 provides that if a defendant is not brought to trial within the requisite time, he or she will be discharged, and the discharge constitutes an absolute bar to prosecution of the same offense and for any other offenses required to be joined with that offense.

The felony information filed against petitioner in Benton Circuit Court on March 1, 1993, accused him of committing two counts of delivery of marijuana in violation of Ark. Code Ann. § 5-64-401 (Supp. 1991), both Class C felonies, on September 27, 1991, and October 4, 1991. Petitioner was arrested on these charges on December 25, 1992, pursuant to a warrant. The arrest warrant was issued on April 16, 1992, after the Rogers Municipal Court judge determined probable cause existed according to an affidavit completed by the Rogers Police Department and signed by the deputy prosecuting attorney. The affidavit of probable cause was filed of record in Benton Circuit Court on April 16, 1992.

The sole issue presented in this case is the meaning of the phrase “the date the charge is filed” in Rule 28.2(a). The pertinent part of Rule 28 states as follows:

RULE 28.2. When Time Commences to Run.
The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest[.]

Petitioner contends the state filed charges against him on April 16, 1992, when the affidavit of probable cause to arrest him was filed in circuit court. Accordingly, petitioner argues that pursuant to A.R.Cr.P. Rules 28.1(c) and 28.2(a), the twelve-month period for his trial began to run on April 16, 1992. Respondent also relies on Rule 28.2(a) but contends that charges were filed against him in circuit court when the information was filed on March 1, 1993. Thus, respondent argues the charges were filed after petitioner’s arrest on December 25, 1992. Therefore, according to Rule 28.2(a), respondent argues the time for petitioner’s trial began to run on the date of his arrest.

Rule 28.2(a) is silent with respect to which particular charging instruments must be filed to satisfy the requirement that charges are filed. This silence is no doubt due to the fact that the requisite charging instruments in any case vary according to the classification of the crimes charged and the jurisdiction of the charging courts. The Arkansas Constitution provides that no one shall be held to answer a criminal charge unless on the presentment or indictment of a grand jury, except for those cases which the General Assembly makes cognizable by justices of the peace or courts of similar jurisdiction. Ark. Const, art. 2, § 8. Amendment 21 to the Arkansas Constitution provides that an offense which previously had to be charged by grand jury indictment may now be charged by information filed by the prosecuting attorney. Thus, only felonies must be charged by grand jury indictment or by information filed by the prosecuting attorney. Ark. Const, art. 2, § 8; amend. 21; Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). City attorneys cannot file felony charges, and municipal courts are without jurisdiction to try felony cases. Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993). The requirements for informations and indictments are set out in Ark. Code Ann. § 16-85-403 (Supp. 1993) and Ark. Const, art. 7, § 49. Id.

Misdemeanors and violations of city ordinances need not be charged by information or indictment. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); Burrow v. Hot Springs, 85 Ark. 396, 108 S.W. 823 (1908). Pursuant to Article III of the Arkansas Rules of Criminal Procedure, these lesser charges may be charged by the issuance of a warrant, citation, or summons to command an accused to court. Hagen, 315 Ark. 20, 864 S.W.2d 856. City attorneys can file charging instruments in municipal court for misdemeanor violations of state or city law committed within the jurisdiction of the municipal court. Id. (citing Ark. Code Ann. § 14-42-112(c) (Supp. 1993)).

Petitioner relies on our recent decision in Hagen, 315 Ark. 20, 864 S.W.2d 856, which held that a city attorney’s form affidavit of probable cause to arrest constituted a sufficient charging instrument to protect Hagen’s due process right to be charged with the misdemeanor for which he had been convicted. Petitioner contends that Hagen should be extended to apply to his felony case so that the probable cause affidavit filed against him in circuit court constituted a valid charging instrument to begin the running of the time for speedy trial. Petitioner emphasizes the similarities in the two cases by noting that the affidavit of probable cause in his case meets the requirements of a valid charging instrument as set out in Hagen.

We do not agree that Hagen applies to petitioner’s case. The situation in Hagen and the facts before us are substantially different. Hagen involved a misdemeanor charge, and informations or indictments are not required for misdemeanors. Long, 284 Ark. 21, 680 S.W.2d 686; Lovell, 283 Ark. 425, 678 S.W.2d 318. Petitioner has been accused of two felonies and has a state constitutional right to be charged by indictment or information. Thus, different considerations apply in determining what constitutes a valid charging instrument in his case.

Petitioner’s right to receive notice of the felony charges against him are protected by Ark. Const, art. 2, § 8, and amend. 21, which require those criminal charges to be filed by indictment or information. Therefore, we hold that for purposes of his speedy trial rights and Rule 28.2(a), the date charges were filed against petitioner is the date the felony information was filed in circuit court, March 1, 1993.

Having determined the date charges were filed against petitioner was the date the information was filed in circuit court, we agree with the state’s contention that the date of appellant’s arrest is the date the time for speedy trial began to run. A.R.Cr.P. Rule 28.2(a). Petitioner was arrested and lawfully at liberty on his recognizance when the information was filed on March 1, 1993. According to Rule 28.2(a), charges were filed after his arrest, and the twelve-month period for his trial began to run on the date of his arrest, December 25, 1992.

Petitioner moved the circuit court for dismissal on speedy trial grounds on August 13, 1993. The trial court entered an order denying petitioner’s motion to dismiss on November 19, 1993. Even assuming arguendo that there were no excludable periods charged to petitioner, the time for his speedy trial had not yet expired. Thus, petitioner did not make the requisite showing that his trial was scheduled to begin after the speedy-trial period had expired. See State v. McCann, 313 Ark. 286, 853 S.W.2d 886 (1993). The trial court did not err in denying his motion to dismiss.

Petitions for writs of prohibition will only be granted when clearly warranted. Rhodes v. Capeheart, 313 Ark. 16, 852 S.W.2d 118 (1993). Petitioner has not demonstrated that his speedy trial rights were violated, and a writ of prohibition is therefore not warranted.

Petition denied.


author: Robert L. Brown, Justice.

text:
    Yvonne DUCHARME v. James L. DUCHARME
    93-1016
    872 S.W.2d 392
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994

      Evans, Farrar, Reis, Rowe & Nicolosi, by; Bryan J. Reis, for appellant.

      J. Sky Tapp, for appellee.
   Robert L. Brown, Justice.

This case raises the question of whether the State of Arkansas will enforce an agreement called an act of donation which is unknown under Arkansas law but was entered into under the laws of the State of Louisiana. The appellant, Yvonne Ducharme, urges that the act of donation, whereby she gave up her rights in certain real and personal property to her husband, appellee James L. Ducharme, for his life was extracted under duress or coercion. Appellee Ducharme counters that appellant Ducharme negotiated the act of donation without coercion or duress and that as a result of the agreement the couple reconciled. The chancery court refused to void the agreement. We find no error in the court’s decision on this and other points raised, and we affirm.

Yvonne Ducharme and James Ducharme were married in Opelousas, Louisiana where they were living in 1979. It was the second marriage for both, and both had adult children by their previous marriages. Before the marriage, they entered into an antenuptial agreement.

In 1987, while still living in Opelousas, the couple separated. Yvonne Ducharme was in ill health, according to her testimony, and had spots on her lung that she feared might be cancerous. She and James Ducharme determined to reconcile, but as part and parcel of the reconciliation Yvonne Ducharme was told by her husband that she would have to give up her right and interest in all of his property. To accomplish such an agreement, or act of donation as it is termed in Louisiana, she met with her husband’s attorney, Alex Andrus. At that meeting she refused to relinquish her total interest. After negotiating with Andrus, she did agree to give up her usufruct for her husband’s life in certain notes receivable and real property located in Louisiana. Under Louisiana law, the usufruct is a “real right of limited duration on the property of another.” La. Civ. Code Ann. art 535 (West 1980). The agreement constituting the act of donation was signed by the couple on October 2, 1987, and they reconciled.

In June of 1991, the Ducharmes moved to Arkansas to Hot Springs Village, and Yvonne Ducharme began selling real estate on a part-time basis. The next year she filed for divorce on September 16, 1992, and as part of the divorce action sought to void both the antenuptial agreement and the act of donation as violative of this state’s public policy due to duress and coercion. Following a hearing, the chancery court issued a letter opinion on April 5, 1993, wherein it (1) declared the Louisiana antenuptial agreement null and void as contrary to Arkansas’s public policy; (2) upheld the act of donation; (3) awarded alimony in the sum of $750 per month for a term of five years; (4) declared the Hot Springs Village home and the portable buildings located on the real property described as the Union Street property to be marital property and her interest to be one-half of the sale proceeds; (5) awarded her various marital gifts and her premarital property; (6) and awarded him his premarital property. The chancery court did not increase Yvonne Ducharme’s interest based on work performed with regard to the real property. Nor did it grant her an interest in $31,000 in cash held by her husband. By an order on reconsideration Yvonne Ducharme was also awarded a one-half interest in the sale proceeds of a trailer park in Louisiana.

We begin by considering the validity of the act of donation, which Arkansas law does not recognize. The chancery court made no specific finding that the donation agreement executed in 1987 was a Louisiana contract, the legal effectiveness of which would be determined under Louisiana law, but that appears to be obvious. In 1987, the couple had married, and they were living in Opelousas as they had been for eight years. The property specified in Yvonne Ducharme’s grant of the usufruct to her husband for life was Louisiana property. The State of Arkansas was not in the picture at that time. Yvonne Ducharme charges, however, that since 1991 the notes receivable under the act of donation have been in Arkánsas and are being collected in Arkansas. According to her theory, Arkansas law should determine the agreement’s validity.

We do not. agree. In resolving choice of law matters for contract disputes, the law of the state with the most significant relationship to the issue at hand should apply. See Robert A. Leflar, et al, American Conflicts Law § 149 (4th Ed. 1986); Standard Leasing Corp. v. Schmidt Aviation, 264 Ark. 851, 576 S.W.2d 181 (1979); Yarbrough v. Prentice Lee Tractor Co., 252 Ark. 349, 479 S.W.2d 549 (1972); see also Snow v. Admiral Ins. Co., 612 F.Supp. 206 (D.C. Ark. 1985). Because of the history of the Ducharmes’ marriage, the place of contracting, and the location of the real property specified in the agreement, we hold that Louisiana’s law applies to determine the legal efficacy of the act of donation.

Because the agreement is valid under Louisiana law, we next address whether it is unenforceable in Arkansas as contrary to this state’s public policy. Yvonne Ducharme argues that the chancery court clearly erred in its analysis because in 1987 she had spots on her lungs and no medical insurance. Her only recourse was to reconcile with her husband and avail herself of his insurance, according to her argument, and the act of donation was purely a matter of leverage brought to bear by her husband. In other words, the agreement was coerced, she maintains.

On this point, the chancery court made the following findings in its letter opinion:

3. That on the date of donation, the parties had been living separate and apart for some period of time.
4. The act of donation was given in contemplation of resumption of the marriage and in termination of the separation.
5. The terms of the donation were, at least in part, negotiated between the parties in that originally the donation was drafted whereby the wife would give all of her interest in the subject property to the husband. However, after discussions, the wife agreed only to donate a life estate.
6. The wife was not forced or coerced into executing the act of donation.
7. The wife had the option, rather than executing the act of donation, to seek a legal separation or divorce from the husband.
8. The wife had ample time to consider the matter prior to executing the donation, and ample time to consult with independent counsel if she so desired.
9. At the time of the donation, the wife was an experienced businesswoman and real estate broker. She was thoroughly familiar with real estate and business matters.
Therefore, the act of donation is valid and is enforceable.

We cannot say that these findings by the chancery court are clearly erroneous or that it erred in its conclusion that the donation agreement is enforceable in this State. Yvonne Ducharme obviously knew what she was abandoning in exchange for reconciliation with her husband and made an informed and calculated decision to do that. No doubt, she gave up her rights in certain property for her husband’s life in exchange for medical security, and that security was an incentive for her doing so. But Yvonne Ducharme had other options, as the court pointed out. She could have retained counsel to explore alternatives to the donation agreement or sued for separation or divorce and argued for continued medical coverage as part of those lawsuits. Moreover, there is also the fact that that agreement fostered a reconciliation in the Ducharmes’ marriage which clearly was not against public policy. See Schichtel v. Schichtel, 3 Ark. App. 36, 621 S.W.2d 504 (1981). The Court of Appeals said in Schichtel:

The law encourages the resumption of marital relations. Since the purpose of a reconciliation agreement is to restore marital relations, it harmonizes with public policy and will be upheld.

3 Ark. App. at 38, 621 S.W.2d at 506.

In sum, we agree with the chancery court that the facts in this case do not support an allegation of duress and coercion such as to render the agreement unenforceable in this state.

Appellant Ducharme’s remaining three arguments are also without merit. She contends that the chancery court was wrong in not extending alimony until she was eligible for social security rather than just five years. The award of alimony is a matter resting solely in the chancery court’s discretion. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). The alimony award must always depend upon the particular facts of each case. Dean v. Dean, 222 Ark. 219, 258 S.W.2d 54 (1953). The ability of one party to pay and the need of the other party are primary factors to be considered in awarding alimony. Burns v. Burns, supra.

The court found that Yvonne Ducharme had marketable skills. She knew the real estate business as a licensed seller and broker, and she had worked in other capacities including that of secretary and decorating consultant. She, therefore, had the means to support herself. That fact joined with the alimony award and other property given her in the divorce evidence that the chancery court weighed the relevant circumstances. We conclude that the chancery court acted well within its discretion in awarding alimony “for a specified period of time.” Ark. Code Ann. § 9-12-312(b) (Repl. 1993).

Nor do we concur with Yvonne Ducharme that the work expended by her as carpenter, plumber, electrician, cleaner, and repairer on the rental properties entitled her to a bonus award in certain property. It is unclear as to what exact property the appellant is referring to. Suffice it to say that she presents no persuasive reason for enlarging her one-half interest in the sale proceeds of the property to be sold pursuant to the chancery court’s order. The remaining property appears to be subject to the act of donation, according to the chancery court’s opinion, and we have affirmed that decision.

Lastly, appellant Ducharme maintains that some $31,000 of cash assets are marital property to be divided equally. James Ducharme counters that these assets derived from property subject to the act of donation and that he is entitled to all of it. Again, Yvonne Ducharme cites no authority why this should not be the case and presents no proof as to the source of these funds. We have no basis for declaring that the chancery court abused its discretion on this point.

Affirmed.

Corbin, J., not participating.

      At the time of the hearing in 1993, Yvonne Ducharme was age 56.


text:
    Christopher LAUGHLIN v. STATE of Arkansas
    CR 93-1101
    872 S.W.2d 848
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994

      Tim R. Morris, for appellant.

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

This case involves multiple convictions of rape and sexual abuse involving boys less than age 14. The appellant, Christopher Laughlin, received seven sentences, two of which were life terms. Laughlin appeals on several grounds; (1) one victim, L.M., who was age 12 at trial, gave testimony that was incompetent; (2) there was insufficient evidence to convict Laughlin for the rape of T.L. or the sexual solicitation of L.M.; (3) the trial court erred in not admitting testimony of T.L.’s sexual conduct with his brother; (4) the trial court erred in not admitting testimony of J.M.’s sexual conduct with third parties; and (5) the trial court erred in not permitting cross examination of victim C.L. about prior criminal acts. The points on appeal are meritless, and we affirm.

The events in question took place between August 1, 1991, and April 16, 1992 in Rogers. Laughlin, who was age 32 at trial, had a house in the city. He would invite young boys to his house in the afternoons and often they would spend the night with him, with or without parental consent. At times, the parents of some of the boys used him as a babysitter. At his home the boys, who were all under age 14 at the time of the alleged offenses, testified that they played the video game, Nintendo, or watched television. They also testified that they drank alcoholic beverages, smoked cigarettes and marijuana, and read nudity magazines such as Penthouse and Playboy. A few of the boys would walk around the house naked and urinate off the back porch. On occasion, Laughlin would photograph the naked boys. From time to time Laughlin would masturbate with one of the boys or perform oral sex on a boy or have a boy perform oral sex on him. There was also testimony that he engaged in a form of anal sex with at least three boys, though there was no uncontradicted testimony of penetration.

The trial of this matter was held on February 2, 1993 and continued over six days. Laughlin was convicted of the following offenses with the following victims under age 14 and received these sentences:

J.W. Rape Life Imprisonment

S. L. Rape Life Imprisonment

T. L. Rape 40 years

J. M. Rape 40 years

K. W. Sexual Abuse 10 years

C.L. Sexual Abuse 10 years

L. M. Sexual Solicitation of a child 1 year in the county jail and á $1,000 fine.

The life and 40-year sentences were to run consecutively; the sexual abuse and sexual solicitation sentences were to run concurrently. Subsequent motions for amendment of judgment and a new trial were denied.

I. INCOMPETENT TESTIMONY

Laughlin first contends that the testimony of L.M., who was the victim in the sexual solicitation conviction, was not competent. He specifically urges that L.M. had a faulty memory and could not accurately convey what he experienced.

We give this argument little credence. This court has repeatedly stated that the competency of a child, in a case involving a sexual offense, is a matter that is primarily for the trial court to decide, acknowledging that the judge is best able to assess the child’s intelligence and understanding of the necessity for telling the truth. Holloway v. State, 312 Ark. 306, 849 S.W.2d 473 (1993); Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986); Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949). The trial court begins with the presumption that every person is competent to be a witness. Ark. R. Evid. 601; Jackson v. State, supra. Under the guidelines set forth by this court for determining the competency of a child witness, the challenging party bears the burden of establishing that the witness lacks at least one of the following: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the factfinder a reasonable statement of what was seen, felt, or heard. Holloway v. State, supra, citing Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989).

In support of his contention, Laughlin points to instances in which L.M. demonstrated forgetfulness or contradicted another victim’s testimony. He also relies on the fact that L.M. admitted that he did not tell the police officers the truth when he was first questioned.

Nevertheless, L.M., who was 12 at the time of trial, identified Laughlin and consistently testified that Laughlin touched his penis on at least two occasions. He answered questions clearly and gave sufficient detail of the acts committed by the appellant. He also exhibited an ability to recall and give accurate impressions of reality, and there were no direct conflicts or irreconcilable differences in the victim’s testimony with regard to the essential elements of the case. Further, his testimony was generally responsive to the questions. All of these factors are important in assessing competency. See Jones v. State, 300 Ark. 565, 780 S.W.2d 556 (1989); Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988); Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102, cert, denied, 460 U.S. 1022 (1983).

The fact that L.M.’s testimony may not have been a model of lucidity does not render him incompetent. Holloway v. State, supra; Bowden v. State, supra. Any variances in his testimony were for the jury to resolve. Id. We cannot say that the trial court abused its discretion' by declaring the witness competent. See Curtis v. State, 301 Ark. 212, 783 S.W.2d 47 (1990).

II. INSUFFICIENT EVIDENCE REGARDING T.L. AND L.M.

Laughlin next asserts that the evidence was insufficient to support the verdict for rape involving T.L. and sexual solicitation involving L.M.

We have recently described our analysis for determining whether the evidence is sufficient:

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). In determining the sufficiency of the evidence, we review the proof in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).

Moore v. State, 315 Ark. 131, 134, 864 S.W.2d 863, 865 (1993).

T.L., an eleven year old boy at the time of trial, gave precise testimony regarding the sexual conduct of Laughlin. He stated that he knew him and identified him in the courtroom. He described the exterior and interior of Laughlin’s house and the area surrounding the house. He further testified that he went to Laughlin’s house on a Wednesday. There, he had a shower, and Laughlin took a towel and dried his “private off.” In later testimony, T.L. stated that Laughlin touched his penis inside his underwear and hugged him. T.L. also performed oral sex on the appellant at his request. He then described in graphic detail how Laughlin performed oral sex on him on at least two separate occasions.

This testimony clearly qualifies as rape by deviate sexual behavior. Ark. Code Ann. §§ 5-14-101(l)(A), 5-14-103 (1987). The fact that L.M. remembers the toweling episode differently from T.L. is immaterial, since there is no requirement that T.L.’s testimony as a victim be corroborated. Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). The testimony of a rape victim alone is sufficient to support a conviction. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992); White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990). And T.L.’s credibility, to the extent it was called into question, falls within the realm of the jury to assess. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). Likewise, any inconsistencies between the testimony of the victims were for the jury to resolve. White v. State, supra. In sum, the evidence of rape which pertained to T.L. was sufficient.

With respect to the sufficiency of the evidence for the sexual solicitation of L.M., we hold that this issue was not preserved for appeal. Laughlin did request that the sexual abuse charge be reduced to sexual solicitation of a child. The trial court refused, but the jury then found him guilty of this lesser offense. However, Laughlin never moved for a directed verdict regarding the offense of sexual solicitation. We have held that the motion must be made in connection with the offense for which the defendant was convicted in order for the matter to be subject to our review. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). In the instant case, the directed verdict motion was made on the charge of sexual abuse but the jury in effect acquitted Laughlin of that charge by finding him guilty of the misdemeanor, sexual solicitation of a child. No motion for a directed verdict was made relating to sexual solicitation involving L.M. We decline to address the issue.

III. RAPE SHIELD STATUTE

At trial, Laughlin asked the court to allow questioning of two victims, T.L. and J.M., about their sexual conduct with other males. In both instances, Laughlin maintained that the testimony which he sought to elicit would disclose that the other males were guilty of the acts for which he is charged.

In the case of T.L., Laughlin attempted to cross-examine him about the victim’s sexual relationship with his brother. He argued that this was relevant to show that it was in fact the brother who molested T.L. and not the appellant. The prosecutor objected on the basis that this violated the Rape Shield Statute, Ark. Code Ann. § 16-42-101 (1987). An in camera hearing was held, following which the trial court ruled that the testimony of any sexual activity with the brother before the trial was irrelevant and should be excluded.

Laughlin argues on appeal that the sexual conduct with the brother was relevant, but we agree with the trial court that it was not. The Rape Shield Statute broadly excludes evidence of specific instances of the victim’s sexual conduct prior to the trial. Slater v. State, 310 Ark. 73, 832 S.W.2d 846 (1992). Under the statute, the trial court, upon proper motion, may engage in a balancing test to assess whether the probative value of the testimony sought outweighs the inflammatory nature of the testimony. Laughlin was unable to persuade the trial court that the testimony of sexual activity with the brother was relevant on the theory that T.L. had confused the brother and Laughlin in his mind. The trial court disallowed the inquiry, and we find no fault in its ruling.

Turning to the testimony of J.M., Laughlin asserts that testimony about J.M.’s homosexual encounters with other males bolsters Laughlin’s defense that another individual molested J.M., and not the appellant. He also insists that this testimony would be probative of J.M.’s lack of credibility as a witness. Again, these arguments lack merit.

What precipitated this issue was the following sidebar conference that occurred at trial:

DEFENSE COUNSEL: Your Honor, for the record, and from the previous court rulings, I plan or plan to have the Court’s permission to ask him if he has done any of these acts prior or after the incidents with other individuals besides Chris Laughlin.
THE COURT: Do you have any basis for believing that he has?
DEFENSE COUNSEL: The only basis I have, your Honor, is that when his father met Chris Laughlin there was conversation that he didn’t want his son going over to the bowling alley because that’s where all the homosexuals were and was concerned about the crowd and his son going over to the bowling alley. That’s the only basis I have.
PROSECUTOR: Your Honor, I have no basis — in fact, I asked [J.M.] about it Friday and he said that he’s never been — nobody’s ever done anything like this to him before.
THE COURT: Well, your request is denied.

Admissibility of a victim’s prior sexual conduct as an exception under the Rape Shield Statute must be determined pursuant to precise procedures codified at Ark. Code Ann. §§ 16-42-101 (c)(l-3). Admissibility of prior sexual conduct is discretionary with the trial court. Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993); Marcum v. State, 299 Ark. 30, 771 S.W.2d 250 (1989). In order to set in motion a relevancy decision by the trial court regarding prior sexual conduct, § 16-42- 101(c)(1) requires that the defendant file a written motion with the court before resting to the effect that the defendant desires to present evidence of the victim’s past sexual activity.

Here no written motion was filed and no in camera hearing was conducted as required by § 16-42-101(c). Only an objection was made by defense counsel, and that was denied. We conclude that the procedure followed was defective and insufficient to invoke a relevancy determination under the Rape Shield Statute. It is also highly questionable that the “basis” cited for the objection by the defense counsel qualifies as a proffer of proof. Indeed, the defense counsel made no reference to the Rape Shield Statute in making his objection. We hold that Laughlin did not follow the procedure for raising an exception to the Rape Shield Statute, and, accordingly, his argument on appeal is without merit. See Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985).

For his last point of error, Laughlin argues that he was denied his right to effectively cross-examine C.L. when the court declined to allow inquiry into alleged misconduct of that witness. In support of this argument, he cites Rule 608(b) of the Arkansas Rules of Evidence which provides:

(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of [a] crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

We have interpreted Rule 608(b) to relate to inquiries into conduct on cross examination that are clearly probative of truthfulness or untruthfulness. Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993); Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990). We have not interpreted the rule to permit cross examination into specific instances that are merely probative of dishonesty. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982).

At trial, Laughlin asked the court’s indulgence to question C.L., age 9, about two specific instances of misconduct: (1) being detained by police while riding in a stolen car driven by his older brother; and (2) being detained by police for riding stolen bicycles, again with his older brother. When arguing his position to the trial court, Laughlin explained that he wished to demonstrate the fact that criminal charges could be filed against C.L. and that this could be leverage against C.L. to testify against Laughlin which would diminish C.L.’s credibility.

The actions of C.L. involving the stolen bicycle and car which Laughlin seeks to probe are indicative of dishonest acts but do not necessarily evidence a proclivity for untruthfulness. This court has stated that “while an absence of respect for the property rights of others is an undesirable trait, it does not directly indicate an impairment of the trait of truthfulness.” Rhodes v. State, 276 Ark. at 209, 634 S.W.2d at 111. We follow our reasoning in the Rhodes decision and hold that the specific incidents of alleged theft perpetrated by C.L. and his brother do not automatically translate into examples of untruthfulness. The trial court, accordingly, did not err in disallowing further questioning on these circumstances. See also Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990).

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

Affirmed.

Corbin, J., not participating.

      The State first objected to the absence of a written motion by defense counsel as required by § 16-42-101(c)(l) when the issue of T.L.’s prior sexual conduct was raised, and the trial court sustained the objection. Later, when the issue of T.L.’s specific sexual activity with his brother was raised, no similar objection by the State was made, and the State proceeded to participate in the rape shield hearing in camera. The State does not argue on appeal that Laughlin failed to file a written motion with respect to T.L.’s testimony concerning his brother, and, thus, that issue is not before us.


author: Thomas B. Burke, Special Justice. Tom Glaze, Associate Justice,

text:
    Andrew PICKENS, Jane Pickens & Lyn Ashman v. Freddie BLACK, Executor
    93-718
    872 S.W.2d 405
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994

      The McMath Law Firm, by: Sandy S. McMath, for appellant.

      Ramsay, Bridgeforth, Harrelson & Starling, by: William C. Bridgeforth and David R. Bridgeforth, for appellee.
   Thomas B. Burke, Special Justice.

Appellants are the surviving children of the decedent, R.A. Pickens. The decedent died testate, and appellants are neither beneficiaries under his will nor creditors of the estate. Appellee is the executor of the decedent’s estate and is the son-in-law of the decedent’s surviving spouse. His mother-in-law and his wife were also named as defendants below. Appellants prosecute this interlocutory appeal from an order of the probate court denying appellants’ petition to remove the executor, for an accounting, for restitution, and for appointment of an administrator in succession, and from orders denying appellants’ petition for appointment of special counsel and denying reconsideration of the petition for appointment of special counsel. The underlying dispute stems from appellants’ desire to. cause a wrongful death action to be commenced against the decedent’s attending physician, appellee, his wife, and mother-in-law. We hold that the order denying the petition to remove the executor is appealable, but that appeal is dismissed because appellants have no right to prosecute the appeal. In addition, the probate court lacked jurisdiction to order an accounting and restitution, and the denial of those remedies is affirmed. The denial of appellants’ petitions for appointment of special counsel and the denial of reconsideration are not clearly erroneous, and, therefore, we affirm the orders of the probate court.

Appellants’ petition for removal of the executor alleged that the decedent’s death was caused by the wrongful conduct of the decedent’s attending physician, along with that of appellee, his wife, and mother-in-law, and that the appellee-executor would not commence a wrongful death action because he, together with his wife and mother-in-law, were prospective defendants. Appellants submitted various affidavits and deposition testimony in support of their contention that the decedent’s death was caused by such wrongful conduct. Appellants also alleged that the executor had mismanaged estate assets and therefore committed waste. Appellants sought to remove the executor and to cause a successor to be appointed for the purpose of prosecuting the action for wrongful death and to require an accounting and restitution. The probate court denied the petition, holding that appellants were not beneficiaries under the decedent’s last will and testament and, therefore, lacked standing to petition for the removal of the executor.

Rule 2 of the Arkansas Rules of Appellate Procedure governs when an appeal may be taken. Rule 2, however, preserves all statutory rights of appeal which were in existence at the effective date of the rules, July 1, 1979. Act 38 of 1973, which authorized this court to prescribe these rules, provides that rights of appeal shall continue as authorized by law. See Court’s Notes to Ark. R. App. P. 2. Section 28-1-116 of the Arkansas Code Annotated of 1987 provides for appeals from probate causes involving wills, estates, and fiduciary relationships. It was enacted in 1949. It was in effect at the time Rule 2 was adopted and, therefore, determines whether there is a right of appeal in this case.

Section 28-1-116(a) of the Arkansas Code Annotated provides that a person aggrieved by an order of the probate court has a right to appeal. Subsection (b), however, provides that there is no right of appeal from an order appointing or refusing to appoint a special administrator. In Re Estate of McLaughlin, 306 Ark. 515, 815 S.W.2d 937 (1991). In addition, section 28-48-103(f) provides that an order appointing a special administrator shall not be appealable. Thus, any order of a probate court is generally appealable, but there can be no appeal from an order appointing or refusing to appoint a special administrator. In this case, the probate court order did more than refuse the appointment of a special administrator, i.e., it refused to remove the executor because of an alleged conflict of interest. The denial or granting of a petition to remove an executor or administrator, other than a special administrator, is an appealable order. See Barkley v. Cullum, 252 Ark. 474, 479 S.W.2d 535 (1972); Smith v. Rudolph, 221 Ark. 900, 256 S.W.2d 736 (1953); Ark. Code Ann. § 28-1-116(a), (1987). That part of the order denying the removal of the executor is appealable.

Even though it is an appealable order, appellants have no right to appeal the order. The removal statute provides that an executor may be removed for various reasons, either upon the court’s own motion or upon the petition of “an interested person.” Ark. Code Ann. § 28-48-105 (a)(1) and (2) (1987). Appellants are not interested persons. The decedent died testate and left them nothing under the will. They are not heirs. They are not creditors. They have no claim against the estate. The Probate Code defines “interested person” as “any heir, devisee, spouse, creditor, or any other having a property right, interest in, or claim against the estate being administered.” Ark. Code Ann. § 28-l-102(a)(l) (1987). “Heir” is defined as “a person entitled by law of descent and distribution to the real and personal property of an intestate decedent.” Id. at (a) (10). The statute regarding appointment of successor administrators also provides that one can be appointed upon petition of “an interested person.” Ark. Code Ann. § 28-48-107(a) (1987).

Even though appellants are not interested persons, the trial court may have considered their petition for a successor personal representative as something that could cause the court to act on its own motion. It apparently did so and appointed a special administrator to investigate the wrongful death claim. This investigation was done by a person with no alleged conflict of interest and thus satisfied the concern about any possible conflict of interest on the part of the executor. The court did nothing further on its own motion. This action does not make appellants “interested parties,” and it does not give them a right to appeal the court’s refusal to appoint a successor representative.

Appellants assert an interest in the decedent’s estate based on an álleged contract by the decedent to make a will devising certain real property to one of the appellants and based on their alleged interest as remaindermen in other real property whose interest vested upon the death of the decedent, who owned only a life estate. Appellants’ claims to real property based on the alleged oral contract and their status as remaindermen are not claims against the estate, but represent claims made adversely to the estate by those who are not beneficiaries of the estate, i.e., strangers to the estate. It has long been our rule that the probate court lacks jurisdiction to resolve such disputes. Bratcher v. Bratcher, 36 Ark. App. 206, 821 S.W.2d 481 (1991); see also Morton v. Yell, 239 Ark. 195, 388 S.W.2d 88 (1965). Thus, the probate court’s denial of these remedies is affirmed.

After denying appellants’ petition, the probate court appointed a special administrator, W. H. Dillahunty, a member of the bar of this court, for the purpose of determining whether an action for wrongful death should be commenced. The special administrator’s report stated that he had reviewed all of the materials and statutes relating to the contemplated wrongful death action, and he concluded that an action for wrongful death against the attending physician would likely survive a motion for summary judgment. He did, however, characterize the recoverable damages as considerably limited and pointed out that recovery was not certain and that there was no certainty a recovery would be of a sufficient amount to justify the expense of bringing the action. His report noted that potential damages were limited due to the widow’s opposition to commencement of the action and due to the fact that no compensatory damages would be recovered in favor of appellants. The special administrator was of the opinion that independent counsel would not accept the case on a contingent fee basis, and he was unwilling to attempt to persuade competent counsel to accept the cause on such a basis.

After the filing of the special administrator’s report, appellants filed a petition for the appointment of special counsel to commence the wrongful death action. The petition alleged that experienced trial counsel had agreed to commence the action on a contingent fee basis so as to result in no expense to the estate absent a recovery.

On the basis of the special administrator’s report, the probate court entered an order denying the petition for appointment of special counsel and subsequently entered an order denying reconsideration of that petition. Appellants appeal from these two orders, and we address them on the merits because appellants are persons entitled to recover damages for mental anguish as the result of a wrongful death.

Appellants cite section 16-62-102(b) of the Arkansas Code Annotated of 1987, which provides that every wrongful death action shall be brought by and in the name of the personal representative of the deceased person. Appellants contend that the executor, together with his wife and mother-in-law, are prospective defendants in the wrongful death action which appellants seek to have commenced and that the probate court abused its discretion in refusing to appoint special counsel in light of the conflict between the executor’s personal interest and his duties as a personal representative.

The probate court has broad discretion to appoint a special administrator. Section 28-48-103(a), in material part, provides:

For good cause shown, a special administrator may be appointed. . . . after the appointment of an executor. . . . without the removal of the executor.

Ark. Code Ann. § 28-48-103(a) (1987). The appointment may be “for a specified time, to perform duties respecting specific property or to perform particular acts, as stated in the order of appointment.” Ark. Code Ann. § 28-48-103(c) (1987).

In the case at bar, the probate court appointed the special administrator:

for the sole purpose of determining whether or not a malpractice suit should be brought against Dr. Hoagland [the decedent’s attending physician] and, further, to determine whether or not a wrongful death action should be initiated against Carol Pickens, Laurie Black and/or Freddie Black [the surviving spouse, her daughter, and appellee].

The effect of any conflict of interest of the executor in determining whether to initiate a wrongful death action was removed by the appointment of the special administrator. That appointment removed the executor from the decision-making process and ensured that the contemplated litigation would be considered independently and objectively. The special administrator’s report is well-reasoned, and the probate court’s orders based on it and denying the appointment of special counsel are not clearly erroneous. We' do not reverse such orders unless clearly erroneous. Newton County v. West, 288 Ark. 432, 705 S.W.2d 887 (1986).

Affirmed.

Corbin and Brown, JJ., not participating.

Hays and Glaze, JJ., dissent.

Tom Glaze, Associate Justice,

dissenting. As I read the majority opinion, this court recognizes the appellants’ (three surviving children of the decedent, R. A. Pickens) standing to question whether the executor, Freddie Black, had a conflict of interest that prohibited him from deciding whether a wrongful death action should be brought against himself, his wife and mother-in-law and Dr. Hoagland, Pickens’ attending physician at the time Pickens died. See Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970). In his brief, Black relates that one of appellants’ claims filed in a chancery court proceeding alleged that Black and his other co-defendants willfully caused the death of Pickens. Assuming the validity of the appellants’ claim, they, rather than Pickens’ surviving spouse, would be heirs at law and share in any proceeds gained from a wrongful death suit.

Having accepted the appellants’ standing in this cause — a point with which I agree — the majority opinion proceeds to dismiss the appellants’ claim on the basis that the probate court acted properly when appointing a special administrator and in accepting his report and recommendation that a special counsel should not be authorized to pursue a wrongful death action. Based upon the evidence, I believe the probate judge was clearly wrong in adopting the special administrator’s recommendation.

In their briefs, appellants set forth considerable evidence from which one could reasonably conclude Pickens’ death at 12:20 a.m., April 10, 1991, resulted from an overdose of morphine prescribed by his treating physician, Dr. R. A. Hoagland. Pharmacists submitted affidavits reflecting their opinions that Pickens, considering his medical history, should not have been given morphine in any form. They also averred that morphine is a drug that should never be used without monitoring; nonetheless, Mr. Pickens was permitted to self-administer the morphine prescribed for him. Dr. Hoagland was shown previously to have had his license suspended by the Arkansas Medical Board, for-prescribing excessive amounts of controlled drugs. Hoagland also had had his license suspended previously in Nebraska, as well as having been fined and placed on probation in Louisiana.

Dr. Hoagland’s file reflected he had spoken to Mrs. Pickens the morning of April 9, 1991, and Mrs. Pickens informed Hoagland that Mr. Pickens had taken four morphine pills within a one-to-two hour period. Nevertheless, Hoagland waited another nine and one-half hours to examine Mr. Pickens. Hoagland examined Mr. Pickens at his home at 12:00 a.m. on April 10, and Pick-ens died shortly thereafter (Hoagland said) from acute myocardial infarction.

Mr. David Demarco, a licensed embalmer, was called to the Pickens home on April 10th and was met, Demarco said, by a man who appeared to be a doctor. Demarco removed Pickens’ body, took it to a Pine Bluff funeral home and embalmed it that day. Pickens’ funeral was conducted the day after his death. The coroner stated that, although not required, the Desha County physicians almost always notify him of an attended death, but Hoagland did not do so in this situation.

Based upon the foregoing and other like statements, affidavits, testimony and records, four trial attorneys, Robert C. Compton, David A. Hodges, David N. Laser and Walter R. Niblock, opined that a wrongful death action may be sustained against Dr. Hoagland and those persons having the care, custody and control of Mr. Pickens prior to his death. Even the special administrator, who was appointed by the probate court to evaluate such a claim, believed a negligence suit against Hoagland would most likely survive any motion for summary judgment.

The special administrator advised against the estate pursuing a wrongful death suit because Mrs. Pickens “is obviously not in favor of the suit and the material does not indicate that there is a loss of earnings for which compensatory damages would lie in favor of [Pickens’] surviving children.” In sum, the special administrator felt the expense to the estate could not be justified, and did not feel independent counsel would accept the case on a contingency basis. In rebuttal, appellants submitted Mr. David Hodges’ affidavit stating he would accept litigating the case on a graduated contingency fee basis and advance case expenses to be reimbursed upon any recovery.

In my view of the foregoing evidence, I am unaware of any compelling reason why a special administrator should not file a wrongful death action. Everyone, including the special administrator, agrees a strong case of liability exists if a wrongful death suit is filed. The only reasons for rejecting the filing of suit given by the administrator was his suggesting that the prospective amount of damages would be small and to pursue the litigation would cost the estate. Of course, the amount of damages recoverable in most law suits is unpredictable, and considering the circumstances and evidence in this case, the estimated amount of damages, in my opinion, should not be the deciding factor. As to costs of litigation, the estate is in a position to contract with an attorney, who may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter. See Rule 1.8(e) of the Ark. Rules of Professional Conduct. But see also 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering, A Handbook on the Model Rules of Professional Conduct § 1.8:601, at 274 (2d ed. 1993).

In sum, while certainly the probate judge acted prudently in appointing a special administrator to evaluate the merits of filing a wrongful death action, I believe he should not have felt bound by the administrator’s suggestion. To the contrary, the judge, considering the facts and evidence presented, was clearly erroneous to do so.

Hays, J., joins this dissent.

      At this point, I note that Black asserts in his brief that the chancery court has dismissed with prejudice this and other claims since the filing of this appeal. Nothing in the record supports this assertion, nor, if it were true, if those rulings have been appealed.


author: Per Curiam.

text:
    Wilbert JACKSON v. STATE of Arkansas
    CR 93-1172
    872 S.W.2d 400
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994

      Appellant, Pro Se.

    No response.
   Per Curiam.

The appellant Wilbert Jackson was convicted on September 7, 1989, of two counts of theft of property and of being an habitual offender. He was sentenced to twenty-six years imprisonment. The Court of Appeals affirmed. Jackson v. State, CACR 90-45 (November 14, 1990). The appellant claims he subsequently filed in the trial court a petition to correct an illegal sentence pursuant to Ark. Code Ann. § 16-90-111 and that the trial court denied it. Appellant has lodged a record on appeal of the order denying the petition and filed a brief.

The appellant has failed to submit an adequate abstract in the brief. Neither the petition to correct sentence nor the order he alleges to have been entered are abstracted. Our Rule 4-3 (g) provides that it is the duty of the appellant in a criminal case, even though the appellant may be acting pro se, to abstract such parts of the record which are material to the points to be argued in the appellant’s brief. The failure to abstract a critical document precludes this court from considering issues concerning it. Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991). As the abstract in this case is flagrantly deficient, we affirm pursuant to Rule 4-2 (b) (2) which provides for affirmance of a judgment for noncompliance with the abstracting requirement.

Affirmed.

Brown, J., dissents. See Fruit v. State, 304 Ark. 457, 802 930 (1991).


text:
    David REAGAN v. STATE of Arkansas
    CR 94-237
    872 S.W.2d 396
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994

      Paul H. Lee, for appellant.
    No response.
   Per Curiam.

On June 22, 1990, David Reagan was convicted of first-degree murder and sentenced to life in prison. His counsel, C.W. Knauts, filed a timely notice of appeal. Mr. Reagan then moved pro se for a new trial in which he alleged Mr. Knauts had a conflict of interest. Mr. Knauts petitioned the Trial Court to be relieved of further representation of Mr. Reagan. The petition was granted. Mr. Reagan’s motion for a new trial was denied.

A transcript of the trial was tendered to the Clerk of this Court by the Circuit Clerk. The Clerk of the Supreme Court refused to docket the transcript because it was tendered too late. Mr. Reagan moved for a rule on the clerk. We denied the motion because Ark. Sup. Ct. R. 11(h), now Rule 4-3(j)(l), required that a motion to be relieved as counsel after the filing of a notice of appeal be submitted to this Court rather than to the Trial Court. Although we did not say so directly, the clear implication of our opinion was that, as the Trial Court had no authority to relieve Mr. Knauts, he remained responsible for perfecting the appeal.

Our opinion concluded by stating that if Mr. Knauts would file a motion with an affidavit admitting his fault in not filing the transcript on time we would grant the motion for rule on the clerk and forward a copy of the opinion to the Committee on Professional Conduct. Reagan v. State, 304 Ark. 331, 802 S.W.2d 451 (1991). Three years have now passed, and Mr. Knauts has filed no further motion.

Mr. Reagan has moved for a belated appeal. A motion for belated appeal is superfluous at this point because a timely notice of appeal was filed. We will, therefore, treat the motion as one for rule on the clerk. Strode v. State, 301 Ark. 351, 783 S.W.2d 859 (1990). Mr. Reagan’s current counsel, Paul H. Lee, has been appointed to represent Mr. Reagan in federal court proceedings and represents Mr. Reagan with respect to this motion. It is clear that, but for Mr. Knauts’s failure to follow the rules of this Court in his initial quest to be removed as counsel and then failing to file an appeal on behalf of Mr. Reagan in response to our earlier opinion, Mr. Reagan’s appeal would have been heard.

The direct appeal of a conviction is a matter of right, and a state cannot penalize a criminal defendant by dismissing his first appeal as of right when his appointed counsel has failed to follow mandatory appellate rules. Evitts v. Lucey, 469 U.S. 387 (1985). To cut off a defendant’s right to appeal because of his attorney’s failure to follow rules would violate the Sixth Amendment right to effective assistance of counsel. Evitts v. Lucey, supra. See also Pennsylvania v. Finley, 481 U.S. 551 (1987).

C.W. Knauts is relieved as counsel and Paul H. Lee is appointed to represent Mr. Reagan.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Motion granted.


text:
    Franklin Allen ROWE v. STATE of Arkansas
    CR 94-261
    872 S.W.2d 847
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994

      Gene O ’Daniel, for appellant.
    No response.
   Per Curiam.

On July 28, 1993, Franklin Allen Rowe entered a guilty plea for possession of marijuana with intent to deliver and a conviction judgment was entered the same date. No timely notice of appeal was filed from that judgment. Rowe did, however, file a motion to withdraw his guilty plea on August 24, 1993, and on September 8, 1993, a hearing was held on that motion. The trial court orally denied Rowe’s motion on September 8, but its order was not filed until December 21, 1993. Rowe filed a notice of appeal on October 7, 1993 from the trial court’s oral ruling on September 8, instead of filing a notice after entry of the written order on December 21. In sum, Rowe did not appeal from the conviction judgment of July 28, and the notice of appeal he did file was premature to the December 21 written order, denying withdrawal of his plea. Rowe’s transcript was also untimely tendered to this court since he waited too late to seek a timely extension.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.q., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part, but instead implies that there was a misunderstanding. He also claims that the December 21 order was never sent to him and if it had, he would have filed another notice of appeal. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, the petitioner’s motion must be denied.

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


text:
    STATE of Arkansas v. PULASKI COUNTY CIRCUIT COURT Steven Marshall, Chad Brown, and Terry Nutt, Intervenors
    94-197
    872 S.W.2d 414
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      G. L. Jegley, for appellee.

      Davis and Holiman, by: Richard E. Holiman, for intervenors.
   Per Curiam.

The State petitions for a writ of prohibition on grounds that the Pulaski County Circuit Court is without authority to order the prosecuting attorney to perform DNA testing on samples taken from three criminal defendants. Those defendants are the intervenors in this matter.

The three defendants were charged with rape. On August 3, 1993, the circuit court ordered that the defendants furnish blood, hair, and saliva samples to the prosecutor for analysis by the State Crime Laboratory. The State did not seek DNA testing by the FBI. By motions dated August 26, 1993, and September 2, 1993, the defendants requested that the circuit court order DNA testing of these samples from the defendants compared with evidence from the crime scene and the victim. On October 27, 1993, the circuit court ordered that the State send blood, saliva, and semen samples under the control of the State Crime Laboratory to the FBI for DNA testing and analysis. The court noted in its order that the samples could be exculpatory for the defendants and that it was considering the defendants’ rights to a fair trial in its decision. The State was ordered to pay for the DNA testing and analysis and to furnish the results to the defendants.

We believe that the circuit court lacked the authority to direct the prosecutor as to what scientific tests to perform in its investigation and trial preparation. A circuit court may not perform the duties of the prosecuting attorney. See Johnson v. State, 308 Ark. 7, 823 S.W.2d 800, cert, denied, 112 S.Ct. 3043 (1992). We have held in this regard that the powers given to a prosecutor to charge the accused are guarded by the doctrine of separation of powers. See State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993).

Moreover, the United States Supreme Court has determined that the defendant’s right to a fair trial as embraced within the Due Process Clause is not violated “when the police fail to use a particular investigatory tool.” Arizona v. Youngblood, 488 U.S. 1051, 109 S.Ct. 333 (1988). This court has specifically said that the State is not obligated to perform certain scientific tests, noting that a defendant cannot rely upon the State’s discovery as a substitute for his or her own investigation. Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986). While a prosecuting attorney clearly has a duty to disclose all pertinent tests on tangible items pursuant to Ark. R. Crim. P. 17.1, the prosecutor is not required to make certain scientific tests on all materials seized. Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981).

Because the circuit court lacks the authority under the United States Constitution, the Arkansas Constitution, our statutes, and common law to order the State to perform DNA testing on the mere possibility that the results might be exculpatory, issuance of a writ of prohibition is warranted.

Writ granted.

Corbin, J., not participating.

      The circuit court substituted “semen” for “hair” in the October 27, 1993 order.