author: Steele Hays, Justice.

text:
    Benny Ray HATLEY v. STATE of Arkansas
    CR 85-192
    709 S.W.2d 812
    Supreme Court of Arkansas
    Opinion delivered May 27, 1986

      Joe N. Peacock, and Robert F. Meurer, for appellant.

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

On July 13, 1984 the Chief of Police and a patrolman for the City of Cotton Plant, Arkansas, were shot and killed while investigating the theft of a motorcycle. At 4:00 a.m. on the 14th appellant Benny Hatley was arrested in Des Arc for those murders. He was taken to the Des Arc police station where he later gave a statement admitting shooting the two officers. Hatley was convicted and sentenced to life imprisonment without parole on each charge of capital felony murder. On appeal, Hatley raises eight points of error, the primary contention being that his confession should have been suppressed because he was questioned after he had invoked his right to remain silent, in violation of the Miranda rule. We affirm.

Officer Stice, who arrested Hatley, had no experience in interrogation. When he brought Hatley in he had no intention of interrogating him, and had orders to wait until others arrived before any interrogation began. Stice read Hatley the Miranda warnings as a precaution, and when he asked Hatley to sign the Miranda form Hatley told Stice he didn’t want to say anything. Hatley was immediately taken to a cell.

Two hours later Hatley was brought downstairs for trace metal tests. By then Officer Gage of the State Police had arrived. He had not been told what Hatley had said, but was told he might not talk. Gage said, “I’m Bill Gage with the State Police. Benny, you’re in a lot of trouble. You want to tell me about it?” and Hatley replied, “Yes, sir, I’ll talk to you.” Hatley does not dispute Gage’s statement. At that point, Gage read the Miranda warnings again and went over each right individually. Hatley then told his story, readily admitting shooting the two officers.

Whether renewed questioning after a suspect has invoked his Miranda right to remain silent will constitute a violation of the Miranda principles has not previously been dealt with by this court, but was first addressed by the United States Supreme Court in Michigan v. Mosley, 423 U.S. 98 (1975). The opinion points out the court was considering only the procedures involved in a request to remain silent, noting a difference between a request for counsel and a request to remain silent, distinguished in Miranda by the procedural safeguards triggered by each. Mosley at 101, n. 7, 102, n. 10. Police interrogation is more severely restricted after the suspect asserts his right to counsel than after he asserts his right to silence. Edwards v. Arizona, 451 U.S. 477 (1981). See also Anderson v. Smith, 751 F.2d 96 (2nd Cir. 1984). In Mosley (as in this case) no attorney was requested so the issue was limited to what restrictions are placed on the police after a request to remain silent had been made.

In Mosley, the defendant was arrested for several robberies, and told his Miranda rights at the station. He refused to say anything and no further efforts were made to question him. Two hours later another officer questioned him about an unrelated murder. Mosley was again told his rights under Miranda and he then gave an incriminating statement. The Supreme Court rejected a literal reading of Miranda that would require “a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances.” Identifying the critical passage in Miranda, the Supreme Court concluded that admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning was “scrupulously honored.” On that basis, the Mosley court found no violation of Miranda. The police immediately stopped the interrogation, resumed questioning after the passage of a significant period of time, provided defendant with a new set of Miranda warnings and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation. The Court pointed out that, “[t]his was not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance or make him change his mind.”

The Eighth Circuit has had occasion to review the question presented here and in Mosley, where the renewed interrogation involved the same crime. That Court has found that questioning about the same crime is not necessarily crucial but rather whether the defendant’s right to cut off questioning was scrupulously honored. In United States v. Finch, 557 F.2d 1235 (8th Cir. 1977), the Eighth Circuit found no violation where the police immediately stopped questioning the defendant on his request and twenty hours later approached him again. New warnings were given and the defendant made a statement. The court found no efforts by the police to wear down the defendant’s resistance and concluded the defendant’s right to cut off questioning was scrupulously honored. See Jackson v. Wyrick, 730 F.2d 1177 (8th Cir. 1984) (no evidence that officers attempted to induce the defendant not to invoke his right to remain silent); United States v. Udey, 748 F.2d 1231 (8th Cir. 1984); Stumes v. Solem, 752 F.2d 317 (8th Cir. 1985). These courts have interpreted Mosley rather broadly.

In contrast, other jurisdictions have taken a more limited approach to Mosley, either with a greater restriction of the case to its facts or by more caution in the application of the “scrupulously honored” test. In United States v. Olof, 527 F.2d 752 (9th Cir. 1975) the Ninth Circuit found a defendant’s rights were violated when questioning was resumed about the same crime three hours after he had refused to make a statement. The defendant was interrogated a second time while in handcuffs, one of the two agents present knowing of the defendant’s prior refusal. He was again advised of his Miranda rights and though the second attempt to interrogate was of short duration the court found the defendant’s rights violated. The defendant was urged to cooperate and told his cooperation would be called to the attention of the United States Attorney. The agent then confronted the defendant with a description of federal prison, that it was a “dark place” where they “pumped air” to the prisoners. Relying on Mosley, the court found the defendant’s right to cut off questioning was not scrupulously honored where the two interrogations were based on the same crime and the object of the second interrogation was to wear down the defendant’s resistance. See also Commonwealth v. Walker, 470 Pa. 534, 368 A.2d 1284 (1977); Anderson, supra; State v. Greene, 92 N.M. 347, 588 P.2d 548 (1978); and see LaFave, Criminal Procedure § 6.9 (1984); see also People v. Mattson, 37 Cal.3d 85, 207 Cal.Rptr. 278, 688 P.2d 887 (1984).

Apart from how broadly or narrowly Mosley is applied, emphasis on interrogation about a different crime is, we believe, misplaced. The majority in Mosley provides only limited and dubious explanation as to why the renewed questioning on a different crime gave any greater justification for its lowering of the Miranda requirements than if the same crime were involved. See the dissent in Michigan v. Mosley, supra, which we find persuasive, for further elaboration on this point.

Given that, we think the importance in Mosley, as the Court itself recognized, drawing on Miranda, is on strict adherence to its dictates of scrupulously honoring the defendant’s right to remain silent.

To “scrupulously honor” the defendant’s “right to cut off questioning” means simply that once the defendant has invoked his right to remain silent, his will to exercise that right will remain undisturbed; there must be no attempt to undermine his will and he must be secure in the knowledge he is under no compulsion to respond to any questions. Such a determination will, of course, depend on the facts in each case relative to the conduct of the police and of the defendant.

We believe Hatley’s right to cut off questioning consistent with the Mosley standard was not transgressed. There is nothing to suggest there were efforts to wear down his resistance or to prevail on him to change his mind. When Hatley was brought to the station there was not even an attempt to question him after the Miranda warnings were given, and Gage’s comment to him two hours later in the radio room was the first and only time Hatley was asked whether he had anything to say regarding the charges. Having been fully informed that he had a right to remain silent, Hatley readily responded that he did wish to talk and the single fact that he had volunteered the earlier comment when the Miranda warnings were given cannot and should not void a statement clearly shown to have been made willingly.

We note, too, that Hatley’s detention prior to Gage’s question was about two hours, of sufficient length to produce more than a momentary lull before being approached again, thus avoiding the effects of repeated questioning. See Anderson, supra, and Mosley, supra. Yet the interval was not so long as to produce an inference that his cooperation was the result of lengthy “incommunicado detention.” United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976). Nor do we think Gage’s comment objectionable. It was direct and reasonable stating only the obvious, but lacking the quality of coercion and threat found in Olof, supra.

After Gage’s comment and Hatley’s affirmative response, there was no further questioning by Gage until the Miranda rights were again explained. When Hatley responded to Gage’s question, it was an immediate and unequivocal “yes,” and when he told his story it was in narrative fashion and not in response to a series of questions by the interrogator. See Wilson v. Henderson, 584 F.2d 1185 (2nd Cir. 1985). The total time that Gage talked to Hatley, including the taking of the statement, was about fifteen minutes.

Hatley’s next point is that his right to remain silent was not voluntarily and intelligently waived. Factors to be considered in determining the voluntariness of the waiver include age, education and intelligence of the accused, advice or lack of advice of constitutional rights, length of detention, repeated or prolonged questioning and the use of mental or physical punishment. Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985). Hatley was sixteen years old and had at least a sixth grade education. He could read, although the psychologist who evaluated him found him mildly retarded with limited reading ability and thought these factors would prevent him from understanding his rights. However, Hatley testified at the suppression hearing and indicated he was well acquainted with his rights and understood them. He said the rights had been explained to him at least ten times and maybe more in the last five years, that he’d “heard them over and over again” and understood them on the occasion of this arrest. A low intelligence quotient will not in itself render a waiver involuntary, see Hignite v. State, 265 Ark. 866, 581 S.W.2d 552 (1979), where the evidence shows the waiver was knowing and voluntary. Additionally, as noted earlier, Hatley’s rights were gone over carefully by the interrogating officer and thoroughly explained. Nor is there any indication here of a long detention or repeated and extended questioning, and appellant himself testified at the suppression hearing that he was not threatened, coerced nor coaxed by anyone but that he was treated “like a gentleman.” The evidence clearly supports a finding that the waiver was voluntarily and intelligently given.

Hatley next maintains that photographs of the victims should have been excluded as their probative value was outweighed by the danger of unfair prejudice. No objection was raised below and we will not consider arguments not presented to the trial court. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).

Hatley also argues that information concerning parole was improperly brought to the attention of the jury during deliberation. The jury foreman had brought with him into the jury room a short newspaper article listing recent parolees from the Arkansas Department of Correction, listing the names of inmates, their crimes and the beginning dates of their sentences.

The argument is without merit. We have previously considered this question and held that a reference to the possibility of parole by a juror would not constitute reversible error. Veasy v. State, 276 Ark. 457, 637 S.W.2d 545 (1982). In that case, one of the jurors approached the defense attorney in the courthouse a few days after the trial and said that the jury had assumed the defendant would serve considerably less than thirty-five years in prison because of the parole system. Citing Ashby v. State, 271 Ark. 239, 607 S.W.2d 675 (1980) we said:

... If the jury or any of them did take the possibility of parole into consideration in their determination of appellant’s sentence, any information they had concerning parole was independent knowledge which they had prior to trial.
* * *
... It would be highly unrealistic for this court to think that jurors do not consider the possibility of parole in arriving at a sentence in a criminal case. The outward expression of that by a juror is not grounds for a new trial.

Here, the juror stated the article contained no information that was not already a part of his common knowledge and the article was not circulated. There is no indication the information was used to improperly influence any juror.

A final point concerns four objections to the death qualified jury, all which have been rejected by this court. See Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983). On the day this case was submitted the question of the constitutionality of death-qualified juries was conclusively settled by the United States Supreme Court in the case of Lockhart v. McCree, — U.S._(Slip Op. 84-1865, decided May 5, 1986). The arguments that death-qualified juries are unconstitutional were rejected.

Under our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

The judgment is affirmed.

Purtle, J., not participating.

       The court noted this was permissible under other circumstances, but would be reviewed in the context of renewed questioning.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Curtis WATSON v. STATE of Arkansas
    CR 85-221
    709 S.W.2d 817
    Supreme Court of Arkansas
    Opinion delivered May 27, 1986

      Linda P. Collier, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant was convicted of capital murder and sentenced to life in prison without parole. His two points for reversal are (1) that by virtue of his having to use two of his peremptory jury challenges to remove jurors who should have been dismissed for cause, he was forced to allow two jurors objectionable to him to be seated, and (2) that the evidence was insufficient to show he acted with deliberation and premeditation when he killed his wife and father-in-law. We affirm because the appellant did not make a record showing the manner in which the jurors of whom he complained were objectionable, and because we regard the evidence of premeditation to have been sufficient.

1. The Jurors

The appellant was forced to exercise two of his peremptory challenges to exclude from the jury two jurors who should have been excluded for cause. To preserve this error for appeal, we require the appellant to show prejudice, i.e., that he was forced to accept a juror against his wishes. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). No such record was made at the close of the jury voir dire.

During the trial, one of the seated jurors was dismissed for misconduct. An alternate juror was seated. At that point, counsel for the appellant told the court he would have peremptorily challenged the last two jurors seated if he had had any peremptory challenges remaining, although he conceded the last two jurors seated could not have been successfully challenged by him for cause. The court noted that the defense should have made a record of his objection to the two jurors at the close of the jury voir dire, and it was too late to register the objections once the trial had begun.

Whether or not the objection came too late, the appellant did not present to the trial court and has not presented to us any possible basis for finding the last two jurors to have been objectionable. Despite the lack of any abstract of the voir dire of these jurors, we have, in the process of reviewing the record pursuant to our Rule 11(f), read their responses to questions on voir dire. We find nothing in those responses which could conceivably have been objectionable to the appellant.

2. Sufficiency of the Evidence

The appellant contends the state’s evidence was insufficient to show a “premeditated and deliberated purpose of causing death,” an element of capital murder under Ark. Stat. Ann. § 41-1501(c) (Repl. 1977) which defines the offense with which he was charged. The appellant admitted on the witness stand that he went to a rent house into which his estranged wife was moving and waited inside the house until his wife and her father arrived. He and his father-in-law argued, and he picked up a pine knot and hit his father-in-law one or more times and then struck his wife as he was leaving. He said he threw the pine knot into a briar patch as he went back to the place where his truck was parked. He admitted having been at the same house the previous day waiting for his wife and her father, but they did not appear.

The state’s evidence showed that a moist wood-splitting maul was found in the appellant’s pick up truck shortly after the offense occurred and that the maul was clean and was lying in damp leaves in the bed of the truck. It appeared to have been washed and laid there to dry. Photographs and photographic overlays showed that the wounds to the victims were consistent with having been made by the blunt edge of the maul.

Other state’s evidence showed that the appellant’s wife feared she would be killed by him and that the appellant had angrily confronted her and her father on numerous occasions.

The appellant presented psychological expert testimony to the effect that he was a “reactor, not a thinker,” and was not, by virtue of a mental disorder, capable of planning a murder. The jury could have agreed, but it did not.

The evidence from which the jury could have determined premeditation and deliberation was ample. Testimony showed that on the day of the murder the appellant parked his truck about a quarter mile from the murder scene in a place where the truck could not be seen from the house where the murders occurred. From the evidence of the presence and condition of the splitting maul, the jury could have concluded the appellant carried it from his truck into the house to use as a weapon, then carried it back outside and washed it before returning it to the bed of his truck. The appellant’s wife had told her mother that the appellant had threatened to kill her, and there was testimony from which it could have been concluded the appellant had physically abused his wife over the period of time they were suffering marital difficulties including a dispute over custody of their daughter.

The appellant argues the evidence relied upon by the state to show premeditation was equally supportive of the appellant’s testimony that he impulsively killed the victims, having gone to his wife’s house just to confront her and her father over custody of the child. In Jones v. State, 269 Ark. 119, 590 S.W.2d 748 (1983), we said the substantial evidence test is not satisfied if the evidence gives equal support to inconsistent inferences. Here, we view the evidence from which the jury could have concluded the appellant carried the maul into the house from his truck parked a quarter of a mile away and lay in wait for the victims for the second consecutive day as not supportive of any inference other than premeditation and deliberation. It was sufficient.

Affirmed.

Purtle, J., not participating.


author: Zimmery Crutcher, Jr., Special Justice. David Newbern, Justice, Steele Hays, Justice,

text:
    Glenn Lloyd WILSON v. STATE of Arkansas
    CR 85-149
    712 S.W.2d 654
    Supreme Court of Arkansas
    Opinion delivered May 27, 1986

      Gordon L. Cummings, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Zimmery Crutcher, Jr., Special Justice.

Glenn Lloyd Wilson, appellant, was charged with Battery in the First Degree for causing serious physical injury to Lloyd Stewart on or about June 24, 1984, by means of a deadly weapon or under circumstances manifesting extreme indifference to human life, in violation of Ark. Stat. Ann. § 41-1601.

The case came on for trial on February 25, 1985, before a jury duly impaneled, and after opening statements, the State called the prosecuting witness as its first witness. On cross-examination, appellant’s attorney asked about a $1,000,000 civil suit which the prosecuting witness had filed against appellant arising from the alleged battery. The attorney implied by one of his questions that, had appellant paid the prosecuting witness $ 18,000, the criminal charges would have been dismissed. Before this question was answered, the prosecuting attorney objected and asked for a mistrial. A mistrial was declared over appellant’s objection and the jury was discharged.

The trial court set the case for retrial on the following morning, February 26, 1985, and ordered a new jury called to which the appellant objected on the basis of double jeopardy.

Appellant filed a Notice of Appeal alleging for reversal that the trial court erred in granting a mistrial and in denying appellant’s motion to dismiss on the ground of double jeopardy.

We agree with the appellant that the trial court erred in granting a mistrial. The trial judge has considerable discretion in determining the scope of cross-examination. Rule 403 of the Uniform Rules of Evidence states:

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

Also, Rule 408 of the Uniform Rules of Evidence states:

Evidence of (1) furnishing, offering or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

However, this court has consistently taken a broad view of the right of an accused in a criminal prosecution to be confronted with the witnesses against him. Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981). Cross-examination can serve asameans to test the truth of the witness’s direct testimony and the witness’s credibility. A broad view of cross-examination is especially important where it might reveal bias on the part of a key witness. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976); Haight v. State, 259 Ark. 478, 533 S.W.2d 510 (1976).

Here, if the cross-examination had been allowed, the jury would have been informed that the prosecuting witness may have been biased due to a financial interest. On the other hand, the jury may have thought that the civil complaint and damages sought were well founded and that the evidence supported the prosecuting witness’s testimony. Boreck v. State, 277 Ark. 72, 639 S.W.2d 352 (1982).

The sequence of questions on cross-examination of the prosecutor’s chief witness by appellant was as follows:

MR. CUMMINGS: Did you get a lawyer and sue Mr. Wilson?
MR. STEWART: Yes.
MR. CUMMINGS: Have you gone over the facts and your testimony with your lawyer?
OBJECTION (PROSECUTING ATTORNEY): Now, Judge, I am going to object again. I don’t think that has any relevance, not that civil suit, to this criminal action.
THE COURT: Not what he has gone over with an attorney not a party to this action. That would not be admissible.
MR. CUMMINGS: You have a definite financial interest in the outcome of this case, don’t you, Mr. Stewart?
MR. STEWART: Well, not financial, I want justice done.
MR. CUMMINGS: Uh huh. As a matter of fact, if Mr. Wilson had had $18,000.00 to pay you, we wouldn’t be here today, would we?

This court has always held that pecuniary interest, personal affection or hostility, a quarrel or prejudice may always be shown to discredit a witness. Wright v. State, 133 Ark. 16, 201 S.W. 1107 (1918).

Therefore, the trial court was in error in granting a mistrial.

The appellant’s second point of contention is that the trial court erred in overruling his motion to dismiss the charges on the ground of double jeopardy.

Article 2, Section 8 of the Arkansas Constitution says, “. . . and no person, for the same offense, shall be twice put in jeopardy of life or liberty.”

When the jury is finally sworn to try the case, jeopardy has attached to the accused and when, without the consent of the defendant, expressed or implied, the jury is discharged before the case is completed, then the constitutional right against double jeopardy may be invoked, except in cases of “overruling necessity” Jones v. Ark., 230 Ark. 18, 320 S.W.2d 645 (1959). We have found overruling necessity in cases where the defense counsel was intoxicated or a juror was ill. See Franklin and Reid v. State, 251 Ark. 233, 471 S.W.2d 760 (1971) and Atkins v. State, 16 Ark. 568 (1855).

We find no such overruling necessity here.

Therefore, since a mistrial was improperly granted and jeopardy has attached, the appellant cannot be retried.

Reversed and dismissed.

Purtle, J., not participating.

Newbern, J., concurs.

Holt, C.J., dissents.

Hays, J., dissents.

David Newbern, Justice,

concurring. The majority opinion fully states my view in this case. I feel compelled, however, to respond briefly to. the dissenting opinion. Its fallacy is demonstrated by these words taken from the second paragraph:

Thus, on the basis of a question Wilson’s counsel should not have asked the State of Arkansas is deprived of the opportunity to try an individual for a serious breach of the criminal laws.

It was not the question asked by the defendant’s lawyer that deprived the state of the opportunity. Rather, it was the overreaction of the court to that question. As the majority opinion points out, our cases require that an accused not be subjected to double jeopardy unless the mistrial occurred on the basis of an overruling necessity.

The dissenting opinion goes to some length to argue that the question asked by the defense counsel was improper. Even if the cases cited are somewhat supportive of the contention that the question was improper because it was merely cumulative or, on balance, more prejudicial than probative, the point is that the court was hardly confronted with a situation which could not have been handled by a means other than a mistrial.

Steele Hays, Justice,

dissenting. Glenn Lloyd Wilson was charged with first degree battery in the stabbing of Lloyd Stewart. Stewart had filed a civil suit against Wilson seeking damages of $1,000,000, which was pending while the criminal case was being tried. When counsel for the defense asked Stewart on cross-examination whether, in effect, Stewart would have dropped the criminal charges if Wilson had paid him $ 18,000, the prosecution moved for a mistrial and the trial court subsequently granted the motion.

On these proceedings the majority concludes the appellant cannot now be tried at all because of double jeopardy. Thus, on the basis of a question Wilson’s counsel should not have asked the State of Arkansas is deprived of the opportunity to try an individual for a serious breach of the criminal laws. I respectfully dissent.

I don’t question the defendant’s right to bring out the fact that the prosecuting witness is also suing the defendant in a civil case. But that was amply done here. Defense counsel in voir dire, opening statement and questioning had told the jury that Stewart was suing Wilson for a million dollars, providing all the basis necessary to argue bias. When counsel then implied that Stewart had not only offered to settle for $18,000 but that the criminal charges would also be dropped in the process, I believe he went too far and the trial court was well within its prerogative in ruling the question improper and, if it deemed the fairness of the trial sufficiently impaired, to grant a mistrial.

The majority declares that to deny the defendant that question is reversible error. I believe it was within the trial court’s discretion by any of several rules of procedure and evidence and the fact the defense tacitly agreed is found in the record — after the prosecution moved for a mistrial, defense counsel asked the court to admonish the jury to disregard the question. This was cumulative evidence, which is properly excludable. Rule 403, Unif. R. Evid., Lee v. State, 266 Ark. 870, 587 S.W.2d 78 (1979). Moreover, even relevant evidence may be excluded if its probative value is substantially outweighed by unfair prejudice, delay, waste of time, confusion of the issues or having a tendency to mislead the jury. Pitts v. State, 273 Ark. 720, 617 S.W.2d 849 (1981) .

In holding the evidence admissible under Unif. R. Evid. Rule 408 to show bias or prejudice, the majority overlooks the express intent of Rule 403 to exclude evidence otherwise admissible where its probative value is overcome by its prejudicial effect.

The question, I believe, has obvious prejudicial overtones, implying that the defendant is being prosecuted at public expense simply to enrich the prosecuting witness, whereas the probative force, over and above the facts already brought out, has only limited value. In Boreck v. State, 277 Ark. 2, 639 S.W.2d 352 (1982) , we reversed a trial court’s refusal to permit the defense to ask the prosecuting witness in a rape trial if she had agreed to drop the charges in payment of the medical bills. But there was no pending civil case, and no other means of proving bias, no civil case being involved. Furthermore, there was no uncertainty as to the witness’s extrajudicial agreement — she had actually agreed to drop the charges in consideration of an agreement to pay her medical bills and had dictated a statement to the police avowing those terms. In contrast, there is nothing here to show that Stewart has agreed to drop either the civil or the criminal case, assuming he has the power, nor any proffer that he has offered to settle the civil case for any amount. At the very least, the defendant should be required to proffer a factual basis for his question before we brand it error, otherwise we have held reversible error and, hence, double jeopardy to have occurred purely on theoretical grounds. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985); Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975).

I believe the incident in this trial was prompted by the excessive advocacy of defense counsel, rather than by any abuse by the prosecution or the trial judge. The record reveals that during opening statement defense counsel told the jury Mr. Stewart had hired Mr. Walter Niblock to file a civil suit, prompting an objection that a civil action had no bearing on criminal charges, which the court sustained. Thereafter during cross-examination of Stewart defense counsel renewed the topic:

Q: Did you get a lawyer and sue Mr. Wilson?
A: Yes.
Q: Have you gone over the facts and your testimony with your lawyer?
PROSECUTOR: Now, Judge, I am going to object again. I don’t think that has any relevance, not that civil suit, to this cause of action.

When the judge sustained the objection again, defense counsel continued:

Q: You have a definite financial interest in the outcome of this case don’t you Mr. Stewart?
A: Well, not financial, I want justice done.
Q: Uh huh. As a matter of fact if Mr. Wilson had had $18,000 to pay you, we wouldn’t be here today would we?

The majority opinion focuses on the question about the $18,000 and ignores entirely the preceding question which came after the judge had sustained an objection for the second time. The question created an obvious inference that Stewart would benefit financially if Wilson were convicted. That, of course, is patently incorrect, as the outcome of the criminal case would have no bearing whatever on the civil case. Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970); Smith v. Dean, 226 Ark. 438, 290 S.W.2d 439 (1956). That, I believe, was the more offensive question and the follow-up question about the $ 18,000 was simply the finishing touch.

Many courts have recognized, properly I believe, that where it is the conduct of the defendant or defense counsel that occasions the mistrial, the defendant will not be heard to complain on double jeopardy grounds. McDaniel v. State, 604 P. 2d 147 (C.A. Okla. 1979); United States v. Dinitz, 424 U.S. 600 (1976). Haight v. State, 259 Ark. 478, 533 S.W.2d 510 (1976).

In McDaniel v. State, supra, the Oklahoma Court of Appeals said:

To dispense with any ambiguity that might exist we expressly hold that in the absence of evidence of bad faith conduct by the prosecutor or trial court, intended to harass or prejudice the rights of an accused, a defendant will not be heard to complain of the proximate result of his own misconduct at trial. See Pierce v. State, Okl.Cr., 383 P.2d 699 (1963). See also Shimley v. State, 87 Okl.Cr. 179, 196 P.2d 526 (1948). We hold that nothing in the United States Constitution requires that the defendant be allowed to benefit from the exposure of his intended fraud. Were the defendant to prevail in his argument, it would reduce the constitutional prohibition against double jeopardy to a continuing invitation for criminal defendants to intentionally introduce extreme provocation into the trial in the hope that the prosecutor or trial court would be induced to misconduct necessitating a mistrial. We decline to hold that the United States Constitution extends such an invitation.

In Ferby v. Blankenship, 501 F. Supp. 89 (E.D. Va. 1980) defense counsel, while cross-examining a police officer, asked if the defendant had offered to take a lie detector test. The prosecution moved for a mistrial which the court granted. The District Court held the defendant had not been subjected to double jeopardy.

In People v. Bell, 283 N.W.2d 763 (C.A. Mich. 1979), defense counsel in opening statement told the jury that a prior judicial declaration of the defendant’s incompetency to stand trial had already been made by the trial court. This was held on appeal to be incorrect and while incompetency was an issue, the claim that defendant had been so declared was not: “It is one thing to refer to evidence of a claimed fact. It is another thing to refer to a judicial declaration of that fact.” The Court of Appeals determined that a manifest necessity had occurred.

In Barnett v. Florida, 382 So.2d 412 (C.A. Flor. 1980), the trial court declared a mistrial after an outburst by the defendant in the presence of the jury which related to exculpatory matters allegedly told to a witness by a third party. The trial court found the remarks were so prejudicial to the state’s case that a fair trial would be impossible and an admonition ineffective. The Florida court found “manifest necessity.”:

Although the defendant has a valued right to have his trial completed by a particular tribunal, such right is subordinated to the public’s interest in fair trials designed to end in just judgment; thus the double jeopardy protection does not preclude a second trial when the initial trial is discontinued under circumstances manifesting necessity for so doing, and when the failure to discontinue should affect the ends of justice. Wade v. Hunter, 336 U.S. 684 (1949).

In Jones v. Commonwealth, 400 N.E.2d 242 (S.C. of Mass. 1980), while the Supreme Court found the mistrial was chargeable to the trial judge, rather than defense counsel, the opinion states:

The Commonwealth also argues that a defendant who misbehaves should not be able to escape retrial if the judge thereby declares a mistrial. We agree. “It would be a reproach to the administration of justice if a defendant, through his counsel, could pollute the atmosphere of a trial and then turn this to his own advantage on appeal. Commonwealth v. Lewis, 346 Mass. 373, 379, 191 N.E.2d 753, 758 (1963), cert. denied, 376 U.S. 933 (1964).

Our own cases have recognized the soundness of this policy. In Haight v. State, supra, defense counsel told the jury in opening statement that there had been plea bargain discussions and even mentioned length of sentence the prosecutor had recommended. Without phrasing it in terms of “manifest necessity,” we said the remarks were prejudicial and an admonition would not have been sufficient.

I submit this case is plainly governed by Haight. If mention of a plea bargain is too damaging for correction, I believe the prejudice which surely accompanied counsel’s telling the jury, incorrectly, that the prosecuting witness would gain financially by a conviction is of the same stripe. Some indication of that appraisal is found in the fact that defense counsel asked the court to admonish the jury to disregard his own question.

The obvious and alarming effect of this decision is that while the defense can move for a mistrial with impunity, the prosecution can ill afford to do so, for unless the prosecution prevails on appeal the defendant is discharged. This strikes me as patently unfair, as the state is entitled to a fair trial, too, yet it can not move for a mistrial where the stakes are an outright dismissal of the charges, even though the defense may have prejudiced the jury. “Neither side has a right to have his case decided by a jury which may be tainted by bias.” Arizona v. Washington, 98 Sup.Ct. 824 (1978).

This opinion should not end without repeating the cogent view of Justice Harlan in United States v. Tateo, 377 U.S. 466, 84 S.Ct. 1589, 12 L.Ed.2d 451:

While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interest.

Holt, C.J., joins this dissent.


author: George Rose Smith, Justice.

text:
    Joseph R. (Buz) HOOPER, Boyd BOND, and The HOOPER-BOND COMPANY v. Don RAGAR and HOOPER-BOND LIMITED PARTNERSHIP FUND III
    86-62
    711 S.W.2d 148
    Supreme Court of Arkansas
    Opinion delivered June 2, 1986

      Mitchell, Williams, Selig, Jackson & Tucker, by: W. Christopher Barrier and Tracy A. Barger, for appellants.

      Wilson, Wood & Hargis, by: David M. Hargis, for appellees.
   George Rose Smith, Justice.

The primary argument submitted by the appellants on this appeal is that the circuit court was so lacking in jurisdiction of the subject matter that its judgment was void and should be set aside. We find no merit in this argument, or in the appellants’ subordinate contentions, and affirm the judgment.

In 1979 the two individual appellants, Hooper and Bond, as general partners, organized a limited partnership for the purpose of buying, subdividing, and selling a 20-acre tract of land west of Little Rock. The limited partners were a number of investors in the venture, which was to be managed by the two general partners, both being realtors. One of the investors was the appellee Don Ragar, who had a 7.5% interest in the venture as a limited partner. He filed this suit as a derivative action on behalf of the limited partnership and its limited partners. The defendants are the two general partners and the corporation that was organized to handle the real estate transactions.

The complaint alleged, and the plaintiffs’ proof sufficiently showed, that the general partners had been guilty of fraud in obtaining the investors’ approval of sales at below márket value and in obtaining for themselves, in violation of their fiduciary duties, secret profits as developers of the property in question. The general partners filed a counterclaim asserting that Ragar had slandered them and had tortiously interfered with their business relationships.

There is no need for a detailed narration of the extensive testimony considered by the jury. The causes of action asserted in the complaint and the counterclaim for slander were submitted to the jury. The court’s instructions explained the law with respect to the allegations of fraud, negligence, and violation of fiduciary obligations and with respect to the general partners’ counterclaim for slander. The jury returned a general verdict for the plaintiffs for $150,000, refused to award them punitive damages, and refused to award damages on the counterclaim. This appeal is from the ensuing judgment for $150,000.

The appellants argue that Ragar’s suit is essentially one for an accounting and settlement of the partnership affairs, as to which the jurisdiction of the chancery court is practically exclusive. Tankersley v. Patterson, 176 Ark. 1013, 5 S.W.2d 309 (1928). Hence, it is said, the circuit court had no jurisdiction of the subject matter, so that the entire proceeding in that court was a nullity. There was no objection in the lower court to its jurisdiction, but the argument is that a lack of subject matter jurisdiction may be raised at any time.

We have discussed this issue at some length in another case decided today and need not repeat what was said there. Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). As we explained, subject matter jurisdiction in one sense means power and may be exclusively vested in a particular court. For example, the circuit court has exclusive jurisdiction of election contests, the chancery court of divorce cases, and the probate court of the probating of wills. No other court has the power to entertain and decide such cases.

The present litigation, however, does not come within that category. No doubt the complaint might have been drafted as a suit for an accounting and have been filed in chancery. That was not done. The complaint asserted causes of action in tort for fraudulent misrepresentations and for negligence. By counterclaim the general partners sought damages for slander, another tort. As so often happens, the case might have been tried either in the circuit court or in chancery. In such situations the choice of forum is usually made by the parties and the trial court. More often than not it is made without discussion. Here the lawyers and the trial judge tacitly recognized the jurisdiction of the circuit court and went ahead with the trial. The appellants have had their day in court and are not entitled to a second chance.

Another argument is that the trial judge should have directed a verdict for the defendants, because the plaintiffs failed to prove the element of proximate cause. As abstracted, the only motion for a directed verdict was worded as a renewal of the defense motion for summary judgment. That motion was based on a supporting affidavit which is not abstracted. Civil Procedure Rule 50 states: “A motion for a directed verdict shall state the specific grounds therefor.” The appellants now argue proximate causation, but it is not shown that such a contention was made below. In fact, there is no showing that either the motion for summary judgment or the motion for a directed verdict was ever ruled upon. We conclude that the case was allowed to go to the jury without the sufficiency of the evidence having been properly questioned. Actually, there were issues of fact for the jury. No error on the part of the trial court is shown.

The appellants’ third argument is based on a novel attempt by defense counsel to have witnesses testify by power of attorney. Before the trial a number of the limited partners executed affidavits in which each one set forth his understanding of certain facts and then appointed Larry Wilson “to express my views on these subjects.” At the trial counsel for the defendants, instead of calling the limited partners to testify, proffered their affidavits and sought to have Wilson testify for them. The trial court was right in refusing the proffer. Wilson’s testimony about what the partners would have said would obviously have been hearsay, with the affiants not being subject to cross-examination.

A final argument is that the trial court should not have admitted testimony about a transaction that occurred so long before the filing of the suit as to be within the statute of limitations. There was no such objection in the trial court. The point cannot be raised for the first time on appeal.

Affirmed.

Holt, C.J., and Purtle, J., not participating.


author: Robert H. Dudley, Justice.

text:
    MAYBERRY DRAINAGE DISTRICT OF JACKSON COUNTY, ARKANSAS v. Josephine GRAHAM, et al.
    85-292
    711 S.W.2d 147
    Supreme Court of Arkansas
    Opinion delivered June 2, 1986
    [Rehearing denied July 7, 1986.]

      Pickens, McLarty & Watson, by: Tim F. Watson, for appellant.

      Thaxton & Hout, by: Phillip D. Hout, for appellees.
   Robert H. Dudley, Justice.

The appellant drainage district sought to annex additional lands into the district under the authority of Ark. Stat. Ann. § 21-534 (Repl. 1968). It filed a petition for annexation in which it alleged that the construction of improvements had been completed, and that sloughs, marshes, and lakes on appellees’ lands were drained as a result of those improvements. The appellees moved to dismiss the petition on the ground that it did not state facts upon which relief could be granted. The trial court granted the motion to dismiss. We affirm.

The trial court interpreted the statute at issue, Ark. Stat. Ann. § 21-534 (Repl. 1968), as providing a method for annexing lowlands to a drainage district where the improvements have been completed and where the owners of the lands to be annexed have taken some affirmative action to drain sloughs, marshes, or lakes into the completed improvement. Since the petition did not contain an allegation of affirmative action by the owners of the lands to be annexed, the trial court held that no cause of action had been stated.

The appellant contends that the trial court misconstrued the statute, and that it does not require affirmative action by the owners of the outside lands before annexation can be granted. The contention is without merit. The preamble to the act unequivocally recites that the purpose of the act is to provide equitable relief to drainage districts when owners of lands outside the district dig private ditches to drain their lowlands into the district. It provides:

WHEREAS, into the ditches of some drainage districts of the State, after the ditches were completed, other lands have been drained by digging private ditches, thereby draining sloughs, marshes and lakes that could not otherwise be drained, and
WHEREAS, in certain instances, sanitary sewer lines have made use of such drainage ditches to procure an emptying outlet, thereby saving the sanitary sewer district large sums of money, and
WHEREAS, it is right and just that such lands as make use of and are benefited by such drainage ditches of any such drainage districts should stand their just portion of the costs of the construction and maintenance of such drainage ditches in proportion to the benefits received:

(Emphasis added).

The statute by its language contemplates some affirmative action by the outside landowner since it refers to annexing lowlands which have been drained into the drainage ditches after completion of the construction, not drained as a result of the construction. The statute is as follows:

Where any slough, marsh or lake has been drained into the drainage ditches of any drainage district which has completed its work of construction, lands benefited by the draining of such slough, marsh or lake may be added to such drainage district in the manner provided by Section 3 of this Act. . . .

(Emphasis added).

Twice before we have stated the purpose of the statute. In the latest case, Williams v. Village Creek, White River & Mayberry Levee & Drainage District, 285 Ark. 194, 685 S.W.2d 797 (1985), involving an attempt by the appellant to annex these same lands, we stated:

There are provisions for adding lands benefited by a district’s improvements after completion. Ark. Stat. Ann. §§ 21-534, 21-536 and 21-537 (Repl. 1968). However, they permit annexation only when a “slough, marsh or lake” has benefited by having been connected to drainage ditches or conduits constructed by the district.

In an earlier case, Pendleton v. Stuttgart & King’s Bayou Drainage & Irrigation Dist. No. 1, 235 Ark. 513, 360 S.W.2d 750 (1962), we stated:

It is perfectly clear from Act 180 of 1927 that the purpose of Section I [Ark. Stat. Ann. § 21-534] is to prevent owners of sewer lines, sloughs, marshes and lakes, from making use of the drainage district’s improvements without just compensation.

Our interpretation of the statute also retains the symmetry of the entire statutory scheme for the creation of drainage districts. Under ordinary circumstances, the landowner must be given notice that he will be assessed for the benefit of the proposed improvement. He then has the opportunity to protest the construction of the proposed improvement before his land is affected. Ark. Stat. Ann. § 21-514 (Repl. 1968); Williams v. Village Creek, White River & Mayberry Levee & Drainage District, supra. However, the landowner has no right to notice and the opportunity to object to the benefit when he affirmatively takes advantage of the construction by draining his lowlands into a ditch “of any drainage district which has completed its work of construction.” Ark. Stat. Ann. § 21-534 (Repl. 1968).

Affirmed.


text:
    Tommy LILES and Dave Wisdom HARROD v. Barbara LILES
    85-252
    711 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered June 2, 1986

      Junius Bracy Cross, Jr., and Deborah Davis Cross, for appellant Tommy Liles.

      Wright, Lindsey & Jennings, for appellant Dave Wilson Harrod.

      Thomas, House & Smith, by: Douglas House, for appellee.
   David Newbern, Justice.

This case involves an action by a former wife, the appellee, Barbara Liles, to set aside a property settlement into which she had entered with her former husband, the appellant, Tommy Liles, in contemplation of divorce. She sued to set aside the agreement and to recover her expenses related to the action, including her attorney’s fee. The chancellor set aside the property settlement and entered a new property division order. He awarded Barbara Liles an additional amount of money, which he characterized as both damages and an attorney’s fee, jointly and severally against Tommy Liles and attorney Dave Wisdom Harrod, the other appellant, whose fraudulent conduct the chancellor determined to have been responsible for the improperly induced agreement. Both of these remedies were appropriate, and we affirm.

The following is a summary of the facts as found by the chancellor: Barbara and Tommy Liles were married in 1970. She had two children from a previous marriage. In 1976 Barbara engaged Dave Wisdom Harrod to represent her in divorce proceedings against Tommy. A divorce was granted. Barbara and Tommy reconciled, and the divorce was annulled in 1977.

In 1978, Tommy was injured while working for an off-shore oil driller, Rowan Drilling Co. His personal injury claim was covered by the Jones Act, 42 U.S.C. § 688. He and Barbara consulted Harrod about Tommy’s possible personal injury remedies, and they were told by Harrod of the expertise of a Texas attorney, Benton Musslewhite, in Jones Act litigation. Harrod and Musslewhite associated to bring a claim against Rowan on behalf of Tommy. When the claim was filed in the U. S. District Court in Texas, Tommy’s workers’ compensation payments ceased, and Musslewhite loaned $500 to the Liles. Later, Barbara learned of the involvement of Newton Schwartz, another Texas lawyer, when Musslewhite wrote Harrod about splitting the prospective attorney fee with Schwartz.

Tommy’s Jones Act claim against Rowan resulted in a judgment in Tommy’s favor of 2.5 million dollars. Although it was not stated by the chancellor in his findings, it is undisputed that Aetna Insurance Co., Rowan’s carrier which handled the litigation, threatened to appeal. On May 2, 1981, a structured settlement agreement was reached. The settlement required Aetna to pay Tommy a lump sum of $400,000; $2,000 per month for life with a thirty-year guarantee beginning June 1, 1981; $65,000 on June 1,1986; and $35,000 every five years from June 1, 1991 through 2001. The monthly and incremental lump sum payments were to be made to Harrod as trustee of the Tommy R. Liles trust.

Returning to the facts found by the chancellor: Marital problems between Barbara and Tommy arose during the negotiations with Aetna. Tommy, Harrod, and Bryce Marler, a private investigator and former bail bondsman, were making plans to set up a company called Southern Investment Corporation. A purpose of the business was to be the financing of Jones Act litigation on behalf of injured employees of off-shore drilling companies. Tommy was to have an airplane so he could fly up and down the coastal area looking for potential claimants. Barbara’s objection to this scheme led to further marital difficulties. Barbara decided to seek a legal separation, and she and Tommy went together to Harrod’s office where Harrod prepared a separation agreement. Barbara and Tommy again reconciled, and she accompanied him to Houston, Texas, where they signed the settlement documents on or about May 2, 1981.

On May 8,1981, Tommy was staying at a lake cabin, away from the marital home in Drasco, Arkansas, because he was upset over Barbara’s objection to the Southern Investment Corporation plan. On May 10, 1981, Tommy appeared at the house and ran Barbara away, threatening her with a shovel. Barbara went to a nearby store. Harrod appeared there and instructed Barbara to come to his office the following day.

Barbara spent all day May 11,1981, in HarrOd’s office. She asked him what her rights would be in the event of a divorce. Harrod told her what Tommy would give her. She understood Harrod to be representing her. Harrod told her that he was her attorney and would take care of her. He telephoned Tommy several times that day and ultimately prepared an addendum to the trust, a property settlement agreement, and an eiitry of appearance, all of which were signed by Barbara. The trust addendum contained a clause stating that if any party challenged the trust he or she would forfeit his or her interest in the proceeds. Harrod told Barbara that the addendum was not valid unless filed and that it would not be filed unless it was necessary to protect her interest.

As Barbara left Harrod’s office on May 11, 1981, Harrod informed her he would no longer represent her but would be representing Tommy. He filed Tommy’s divorce petition. Even prior to the May 11, 1981, discussion between Barbara and Harrod, Harrod had hired Marler to investigate Barbara’s “drug habits” in contemplation of a contested divorce proceeding. Marler sent Harrod a bill, dated May 7, 1981, in the amount of $1,575 for those services.

On June 12, 1981, Barbara returned to Harrod’s office and asked him to delay the divorce. He replied he could not do so. The divorce was entered on June 15, 1981.

The trust addendum named Harrod as trustee. It was his duty to distribute the $2,000 monthly payments from Aetna. He did so for some five months until he resigned and appointed Barbara’s daughter from her previous marriage as trustee. The daughter had married Tommy after Barbara and Tommy were divorced.

Other undisputed facts are that the trust monies were to be distributed among Barbara, Tommy, and the attorneys to cover their fee percentage of the award, and Harrod was to withhold $80 per month as a fee for handling the trust funds. During the five months he acted as trustee, Harrod failed to account for $20 per month or $100.

It is also undisputed that of the $400,000 initial payment to Tommy from Aetna, the attorneys were paid $355,542.63. Tommy later petitioned the federal court for a reduction in the amount approved to be paid to the attorneys, and $114,800.43 was remitted to him. The remission occurred after the divorce.

Harrod charged a $10,000 fee for representing Tommy in the uncontested divorce. Barbara and her son, James Ezell, testified that when they asked Harrod why the fee was so high he said it represented not only the divorce, which Tommy “could afford,” but other services previously rendered to Tommy and Barbara.

The chancellor reached the following conclusions of law:

1. On May 11,1981, Dave Harrod owed a fiduciary duty to Barbara Liles to represent and protect her interests in the divorce action against Tommy Liles.
2. Harrod breached his fiduciary duty to Barbara Liles by entering into a conspiracy with Tommy Liles to defraud Barbara Liles of her marital assets. Specific evidence of fraud includes the following acts:
(a) Harrod and Tommy Liles established an attorney-client relationship before May 11, 1981
(b) David Harrod attempted to secure evidence of drug abuse by Barbara Liles
(c) Tommy Liles and Harrod permitted Harrod to represent Barbara Liles when both knew that she trusted and relied upon Harrod’s judgment and advice
(d) Neither Tommy Liles nor Harrod advised Barbara Liles of Harrod’s representation of Tommy Liles in the divorce proceeding until after the execution of documents on May 11, 1981
3. Because of the conduct of Tommy Liles and Harrod, Barbara Liles was not properly represented in the divorce action and did not receive nor have an opportunity to receive proper consultation as to her rights in the proceeding.
4. As a result of the conspiracy to defraud Barbara Liles of her marital assets, the property settlement agreement of May 11, 1981, shall be set aside and the marital property shall be returned to the marital corpus and distributed in accordance with the Court’s final judgment and decree of this date.
5. [Here the court discussed the condition of the parties in the light of the factors listed in Ark. Stat. Ann. § 34-1214(A)(1) (Supp. 1985)]
6. For the reasons set forth in paragraph 5 above, the marital corpus shall be divided equally, except as stated below. The corpus shall include all proceeds from the Rowan settlement, including the remitted attorneys’ fees and expenses; all real property owned by the parties as of May 11, 1981; and all personal property except personal items, mementos, effects and clothing, these items being the personal property of the respective party. In addition to his personal items, Tommy Liles shall be credited $10,000 as a set-off for future medical expenses and shall be credited $6,928.63 as a set-off for amounts paid on behalf of Barbara Liles and/or payments of marital debts since May 11, 1981.
7. The “in terrorem” clause in the addendum to the trust agreement shall be set aside because of the conspiratorial and fraudulent acts of Tommy Liles and Harrod.
8. A court of equity cannot award punitive damages and, therefore, the punitive damages claim of Barbara Liles shall be dismissed.
9. Harrod was not negligent in failing to calculate the amount of attorneys’ fees and expenses that should have been paid from the initial $400,000 lump sum settlement payment.
10. Harrod and Tommy Liles did not commit fraud or enter into a conspiracy with the intent to defraud Barbara Liles of her marital assets by consenting to the structured settlement on May 2, 1981.
11. Because of his dual representation and fraudulent conduct, Harrod shall be required to return to the marital corpus the $10,000 fee he received for preparing the property settlement agreement, addendum to trust, and entry of appearance.
12. Because he did not account for $20 a month in disbursed trust proceeds, Harrod shall be required to return $100 to the marital corpus.
13. .As a proximate result of Tommy Liles and Harrod’s conspiratorial and fraudulent acts, Barbara Liles has sustained compensatory damages in an amount equal to her attorney’s fees, costs and expenses in litigating this action. The court finds that the reasonable amount of Barbara Liles’ fees, costs and expenses is $31,318.09.
14. These findings of fact and conclusions of law shall be incorporated by reference into the Court’s final judgment and decree of this date.

L, Tommy Liles’s Appeal

Tommy contends the evidence was insufficient to support the chancellor’s finding of fraud by him or Harrod in the procurement of the property settlement agreement. He contends it was thus error to set aside the earlier decree which incorporated the agreement. He also contends reversal is in order because neither the Jones Act award, to the extent it represents reparation for a loss of Tommy’s physical health, nor the remitted attorney’s fee is marital property. Even if they are marital property, he argues, the virtually equal division was inequitable. He also contends it was error for the chancellor not to have upheld the forfeiture clause in the trust addendum.

a. Evidence of Fraud

The appellant, Tommy Liles, misperceives the standard of review on this issue. We affirm the factual determinations of the chancellor unless they are clearly erroneous. Ark. R. Civ. P. 52(a).

Given the showing that Harrod was having Barbara’s conduct investigated in preparation for representing Tommy in a divorce action while assuring Barbara he was her lawyer, we can hardly say evidence of fraud on Harrod’s part was lacking. As he was acting as agent of Tommy, Tommy is liable also. W. Seavy, Agency, § 91 (1964), notes that a principal is liable for statements by his attorney or other agent upon matters concerning which he is employed or held out to be the spokesman of the principal. Providence-Wash. Ins. Co. v. Owens, 207 S.W. 666 (Tex. Civ. App. 1918); Chamberlin Co. of America v. Mayes, 101 S.E.2d 728 (Ga. App. 1957); Bituminous Cas. Corp. v. J. B. Forrest & Sons, 209 S.E.2d 6 (Ga. App. 1974). While Harrod was not being “held out” as Tommy’s agent when the misrepresentations were committed, the chancellor’s finding that Harrod was representing Tommy was certainly not clearly erroneous.

b. Forfeiture Clause

We will not address the issue of whether the forfeiture clause in the trust addendum was valid. The trust addendum was one of the items agreed to and signed by Barbara in Harrod’s office just before he informed her he was representing Tommy in the divorce. The appellant correctly notes that we need not consider the question whether a chancellor may enforce a forfeiture clause if we affirm the chancellor’s finding of fraud on the part of Tommy Liles.

c. Jones Act Settlement As Marital Property

The appellant, Tommy Liles, contends that, to the extent the Jones Act award compensates him for injury resulting in reparations for his personal, physical loss of his previously healthy body, it does not constitute marital property. By phrasing his point in this way, he apparently concedes that, to the extent the award represents losses other than to Tommy’s physical health, e.g., lost wages or medical expenses incurred, it does constitute marital property.

The appellant contends we should be guided by our decision in Lowery v. Lowery, 260 Ark. 128, 538 S.W.2d 36 (1976), in which we held that a Jones Act claim was not “personal property” and thus was not subject to division pursuant to the predecessor of the current Ark. Stat. Ann. § 34-1214 (Supp. 1985). In Goode v. Goode, 286 Ark. 463, 692 S.W.2d 757 (1985), we noted that Lowery v. Lowery, supra, no longer governs with respect to the question whether a personal injury judgment could be marital property, as it was decided long before the landmark case of Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), where we emphasized that all property acquired by either spouse subsequent to marriage becomes marital property unless it is specifically excepted by the statute. Moreover, in Lowery v. Lowery, supra, we were considering whether a wholly unliquidated Jones Act claim was subject to the marital rights of the spouse of the claimant upon divorce. Here, the claim is liquidated, but part of the judgment is to be received in the future pursuant to the structured settlement. The amount to be received from Aetna is more “liquidated” than was the workers’ compensation claim we held to have been marital property in Goode v. Goode, supra.

Nor does it concern us that some of the money comprising the judgment may have been to compensate Tommy for the harm to his body, as opposed to lost wages and medical expenses. We pointed out in Goode v. Goode, supra, that the chancellor may take into consideration the health of the parties in dividing marital property in accordance with the statute. If we were to hold, as some jurisdictions, see, e.g., Amato v. Amato, 180 N.J. Super. 212, 434 A.2d 639 (1981), that the portion of a personal injury damages award specifically attributable to pain and suffering and bodily harm is so personal to the injured person that it may not be considered marital property, the chancellor would be faced with parsing a general, personal injury verdict to determine its parts, an often impossible task. What if the personal injury judgment occurred some years before the divorce; could we reasonably expect the chancellor in the divorce litigation to trace the portion specifically attributable to other than lost wages and medical expenses? Should we hold that an accompanying spousal loss of consortium recovery is personal to the spouse whose right to consortium was violated and thus not marital property? To do these things would effectively create another exception to add to the list in § 34-1214(A)(1), and we are not empowered to do so. In Gan v. Gan, 83 Ill. App. 3d 265, 404 N.E.2d 306 (1980), an Illinois court of appeals was faced with the same question while interpreting a statute much like § 34-1214. The court said “[t]he husband’s personal injury settlement does not fit within any of the exceptions to marital property enumerated in the Act [404 N.E.2d at 309].” Responding to the husband’s argument that his wife was, in effect, being allowed to take a part of his “being,” the court said:

We think the husband misreads the purpose of the statute. It does not declare, in this case, that the personal injury settlement proceeds are to be awarded to the wife, in whole or in part. It provides merely that those funds are marital property. [404 N.E.2d at 309.]

d. Remitted Attorney Fees

Several months after the divorce, Tommy sought and received a remittitur of attorney fees through the U. S. District Court in which his Jones Act case was tried. Although we do not have the federal court order before us, it is clear from the appellant’s brief that the fees were paid out of the judgment. They, therefore, were a part of the judgment to which the attorneys were mistakenly held to have been entitled until Tommy pursued the remittitur.

In his initial brief, Tommy cited only Lowery v. Lowery, supra, as his basis for claiming the returned fees belonged solely to him. We need not repeat what we said above with respect to that case. In his reply brief, Tommy again argues the fees were no more than a contingent claim during the marriage and not to be considered marital property, citing our decision in the first appeal of Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983). There we held that fees earned by an attorney during marriage but not collected by him until after divorce were not marital property. Again that opinion preceded Day v. Day, supra, and was based on cases overruled by Day v. Day, supra. Given the same situation, we might now reach a different decision. However, we need not make that determination in this case because the fees remitted here were no more than a part of the Jones Act judgment which the federal court found should have been awarded to Tommy while he was still married to Barbara. The chancellor was thus correct to include them in the marital property with the rest of the judgment proceeds.

e. Almost Equal Division

Tommy Liles contends the chancellor abused his discretion by dividing the assets between him and Barbara equally. He cites the chancellor’s finding that while Barbara is able to continue working as a nurse, Tommy may not be able to return to work as a seaman. He contends that, to the extent the chancellor considered Barbara’s contribution in nursing Tommy back to health, it was not a “factor [which] should entitle her to receive half his income for the rest of his life.”

Section 34-1214(A)(1) provides, in part:

All marital property shall be distributed one-half [V2] to each party unless the court finds such a division to be inequitable, in which event the court shall make some other division that the court deems equitable taking into consideration (1) the length of the marriage; (2) age, health and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities and needs of each party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation or appreciation of marital property, including services as a homemaker; and (9) the federal income tax consequences of the Court’s division of property. When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties and such basis and reasons should be recited in the order entered in said matter.

The chancellor did not divide the Jones Act award precisely equally. He allowed $10,000 to be set aside for Tommy’s future medical expenses. The chancellor’s excellent and thorough letter opinion included discussion of each of the statutory factors to be considered upon unequal division. One of the statements in the opinion was as follows:

Age, health, and station in life of the parties: Barbara Liles was 45 years old and Tommy Liles was 42 years old at the time of this hearing. The health of both appears to be average, although Tommy Liles may be unable to perform some manual labor because of his injury. However, he intended to buy and restore antique cars, invest in grocery stores, and pilot an airplane up and down the U. S. coast in search of similarly injured seamen. Barbara Liles is a nurse and apparently has the health to continue this type of work. The station in life of both parties has been enhanced'by the personal injury award and it appears that both would enjoy the same station in life with an equitable division of the settlement.

The chancellor did not abuse his discretion. His finding that the equal division of the property, with the one exception noted, would result in equality of lifestyles for the parties despite Barbara’s continuing ability to engage in her profession and Tommy’s probable inability to engage in his likewise fully supports the decree, and we will not disturb it. See Ford v. Ford, 272 Ark. 506, 616 S.W.2d 3 (1981).

2. Dave Harrod’s Appeal

Harrod contends the judgment in Barbara’s favor in the amount of her costs and attorney fee must be set aside because her claim was a deceit action of which the chancery court lacked subject matter jurisdiction. He also argues there was no substantial evidence to show his actions were the proximate cause of any injury suffered by Barbara and that, absent statutory authority, a tort claimant cannot recover her attorney’s fee from a tortfeasor.

a. Subject Matter Jurisdiction

Harrod suggests that the chancellor lacked jurisdiction to award damages to Barbara for the fraud he was found to have perpetrated against her in connection with the divorce litigation. He made no motion to transfer the claim to the circuit court and did not demand a trial by jury. He contends he may nevertheless raise the issue on appeal because the question is one of subject matter jurisdiction which may be raised at any time.

For the proposition that a tort claim may not be tried in chancery court, Harrod cites Spitzer v. Barnhill, 237 Ark. 525, 374 S.W.2d 811 (1964), and Gorchik v. Gorchik, 10 Ark. App. 331, 663 S.W.2d 941 (1984). In the Spitzer case the plaintiff sued in chancery court, asking that certain allegedly fraudulent conveyances be set aside. He also asked the chancellor to adjudicate his tort claim against the defendant who was apparently trying to get rid of all his property in anticipation of a judgment in the tort action favorable to the plaintiff. The chancellor issued a temporary order restraining the defendant from conveying his property other than in the normal course of business and then transferred the tort claim to the circuit court. On appeal, the plaintiff-appellant contended the chancellor erred in transferring the tort claim to the circuit court.

Our opinion in the Spitzer case interpreted Ark. Stat. Ann. § 68-1308 (Repl. 1979), which states:

In suits to set aside fraudulent conveyances, and to obtain equitable garnishments, it shall not be necessary for the plaintiff to obtain judgment at law in order to prove insolvency, but in such cases insolvency may be proved by any competent testimony so that only one (1) suit shall be necessary in order to obtain proper relief.

The appellant argued the statute required the chancellor to hear the tort claim, citing Horstmann v. LaFargue, 140 Ark. 558, 215 S.W. 729 (1919), which had so interpreted the statute. We overruled the Horstmann case in the Spitzer case and said:

Upon reconsidering the matter we are convinced that our conclusion in the Horstmann case was wrong. Before the adoption of the statute in question it was necessary for a plaintiff to obtain a judgment at law before he could bring suit in equity to avoid a fraudulent conveyance. We think it clear that the statute was concerned only with the avoidance of fraudulent conveyances and was intended only to permit the plaintiff to obtain that relief (described in the act as “the proper relief’) in a single suit. If the legislature had intended to bring about such a drastic change in our law as that of permitting personal injury actions to be tried in equity as a matter of right, we think that intention would have been stated in language too plain to be misunderstood. It certainly was not so stated. [237 Ark. at 528, 374 S.W.2d at 813; emphasis added]

Thus, in the Spitzer case, we were considering whether a statute made a tort action triable in the chancery court as a matter of right. That is not the issue before us now. Here the chancellor took jurisdiction of the fraud claim. We are not considering whether the plaintiff had a right to have the claim in chancery rather than the circuit court; rather the issue is whether the chancellor had the power to determine the matter.

The power issue, i.e., subject matter jurisdiction, was the issue in Gorchik v. Gorchik, supra. In that divorce case, a chancellor had awarded a sum to the husband which partially represented his claim against his wife for having shot him during the pendency of the divorce proceedings. Neither party raised the issue but the court of appeals, on its own motion, reversed that part of the decree. The court correctly cited Hilburn v. 1st State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976), for the proposition that the question of subject matter jurisdiction is always open and may be raised by the court on appeal. However, the court then concluded on the basis of Spitzer v. Barnhill, supra, that the chancery court could not, through exercise of the equity clean-up doctrine, have subject matter jurisdiction of a tort claim as noted above. That was not the holding of Spitzer v. Barnhill. Gorchik v. Gorchik, supra, is thus overruled.

An ancillary citation in Gorchik v. Gorchik, supra, was Chamberlain v. Newton County, 266 Ark. 516, 587 S.W.2d 4 (1979). That case was somewhat more on point. The plaintiff-appellant at first sought to enjoin the county from using a road it had recently constructed on her land without permission from or compensation to her. She ultimately amended her complaint to ask only for damages. Our opinion went to some length to point out that she no longer claimed the right to an equitable remedy, and thus the chancery court lacked jurisdiction because she was merely asking for tort (trespass) relief. There was no equitable relief being sought to which the tort claim might have been considered incidental for the purpose of exercising the clean-up doctrine.

With Chamberlain v. Newton County, supra, we must compare Bierbaum v. City of Hamburg, 262 Ark. 532, 559 S.W.2d 20 (1977). In that case, the appellant gave the city land on which to build a pumping station, but the city built it on other land owned by the appellant. The appellant sought an injunction to prevent the city from continuing to operate the pumping station. The city counter-claimed to condemn the land on which the station had been built. The chancellor denied the injunction and, recognizing that the only issue was the amount of compensation to which the appellant was entitled, transferred the case to the circuit court for a determination of the appellant’s damages. The appellant contended on appeal that the chancellor should have retained the case to determine the damages. We said:

Normally a landowner should not be denied the right for a jury to assess damages in a condemnation case. However, there are circumstances where a chancery court may assess damages in a condemnation case. This is such a case. First, the landowner filed a proper lawsuit in chancery court and, therefore, jurisdiction was properly obtained. Second, the public condemning authority, in this case the city, asked the court to condemn the land and assess damages. There was no objection by the landowner to the chancellor setting damages although damages were not what the landowner wanted. Third, the court on its own motion transferred the case to circuit court; the landowner did not ask for a jury trial on damages. We feel all these reasons were good cause for the chancellor to maintain jurisdiction and decide all issues in the case under the doctrine that once a chancery court acquires jurisdiction for one purpose it may decide all other issues. This doctrine is commonly referred to as the “clean-up” doctrine. Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W.2d 58 (1944). [262 Ark. at 534; 559 S.W.2d at 21 and 22.]

Thus we held that the chancellor not only may determine the damages, or action-at-law, aspect of the case but must do so absent any request that the case be transferred, and must do so despite the prospect of granting any equitable remedy having long since faded away.

As we pointed out most recently in Crittenden County v. Williford, 283 Ark. 289, 675 S.W.2d 631 (1984), when the issue is whether the chancery court has jurisdiction because the plaintiff lacks an adequate remedy at law, we will not allow it to be raised for the first time on appeal. We noted it is only when the court of equity is “wholly incompetent” to consider the matter before it will we permit the issue of competency to be raised for the first time on appeal. See also Whitten Developments, Inc. v. Agee, 256 Ark. 968, 511 S.W.2d 466 (1974).

Viewed together, these cases demonstrate that we have come to the position that unless the chancery court has no tenable nexus whatever to the claim in question we will consider the matter of whether the claim should have been heard there to be one of propriety rather than one of subject matter jurisdiction. We will not raise the issue ourselves, and we will not permit a party to raise it here unless it was raised in the trial court.

Of course, where the exclusive jurisdiction to adjudicate a matter has been placed by the constitution or by statute in some other court, such as probate matters in the probate court or bastardy proceedings in the county court, the question of subject matter jurisdiction may not be waived and the chancery court is totally without power.

Harrod contends the jurisdiction of the chancellor to set aside the property settlement agreement between Barbara and Tommy cannot be used to support hearing the tort claim against him because he was not a necessary party to that action. While that is so, it overlooks the other actions taken by the chancellor. The chancellor set aside the trust addendum and conducted an accounting of Harrod’s actions as trustee. We do not hold, or even consider, whether the tort claim was so incidental to these clearly equitable remedies as to fall within the chancellor’s power pursuant to the clean-up doctrine. See Stolz v. Franklin, 258 Ark. 999, 531 S.W.2d 1 (1975). We hold that the question is not one of subject matter jurisdiction, and the failure of Harrod to move for a transfer of the case or otherwise question the propriety of the chancellor hearing the case waived the issue, and it may not be raised for the first time on appeal.

b. Proximate Cause

Harrod argues that his misconduct, as described by the chancellor, was not the proximate cause of the expense to which Barbara was put in having the property settlement set aside. His contention is that because this court had not yet decided Day v. Day, supra, Barbara got a really good deal in the property settlement he had arranged, as she was to receive $20,000 in cash which came from Tommy’s Jones Act settlement to which she was not entitled.

That argument misses entirely the point that Harrod’s fraud and professional misconduct were the bases for setting the property settlement agreement aside. Whether Barbara was getting a good deal, in Harrod’s opinion, under the law as it existed in 1981, is irrelevant to the setting aside of the agreement in 1985. The damages awarded to Barbara were to compensate her for the expense she incurred in having the agreement set aside. The reason for setting aside was the fraud perpetrated by Tommy Liles and Harrod upon her in the procurement of the agreement. The causal relationship between the conduct of Harrod and the injury to Barbara is obvious.

c. Attorney Fee Recovery

In arguing that Barbara may not recover her attorney’s fee against him, Harrod cites cases, e.g., Clawson v. Rye, 281 Ark. 8, 661 S.W.2d 354 (1983), in which we have adopted the familiar “American rule” that a litigant may not recover an attorney fee in a tort action unless it is authorized specifically by statute or rule of court. In this case, however, Barbara does not seek to recover her attorney’s fee and costs expended to pursue damages in a tort claim against Harrod. Rather, the attorney fee and costs sought here comprise the damages she seeks. Her claim against Harrod results from her having to sue Tommy as a result of Harrod’s misconduct.

The Restatement (Second) of Torts, § 914(2) (1979), after stating the “American rule” in subsection (1), provides:

(2) One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action.

We have applied the same principle in breach of warranty title litigation. Fox v. Pinson, 182 Ark. 936, 34 S.W.2d 459 (1930). Cf. May v. Edwards, 258 Ark. 871, 529 S.W.2d 647 (1975). See also Wilshire Oil Company of Texas v. Riffle, 409 F.2d 1277 (5th Cir. 1969). Thus, if the action against Harrod were merely one in tort for deceit, we would allow Barbara to recover her attorney’s fee and costs incidental to her suit against Tommy made necessary by Harrod’s tortious conduct. In some jurisdictions it has been held that damages may not be recovered for costs and attorneys fees unless they are pursued in a subsequent, separate litigation. See McNeill v. Allen, 534 P.2d 813 (Colo. App. 1975); Powell v. Narried, 463 S.W.2d 43 (Tex. Civ. App. 1971). We see no need to apply that requirement here, because, as we will note below, there are ample reasons for awarding the amount of the fee against both Tommy and Harrod.

There are other reasons to allow the fee even to the extent it represents the expenditure to which Barbara was put not just in her suit against Tommy but in suing Harrod along with Tommy. The chancellor conducted a fiduciary accounting with respect to Harrod’s performance as trustee of the Tommy Liles trust. When an action is brought successfully against a trustee for breach of his trust, the award of an attorney’s fee to the plaintiff is proper. McPherson v. McPherson, 258 Ark. 257, 523 S.W.2d 623 (1975).

While it is not relevant to Harrod’s appeal, we note that the effect of Barbara’s action to set aside the property settlement agreement was to reopen the divorce action against her. The award of her attorney’s fee against Tommy was thus also appropriate, as such an award is within the chancellor’s discretion in a domestic relations case. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979).

We find no error in awarding damages in the amount of Barbara’s costs and her attorney’s fee against Tommy and Harrod jointly and severally.

Another good reason for subjecting Harrod to liability is his departure from the ethical standards to which the court requires its officers to adhere. Harrod’s attorney informed us during oral argument of this case that Harrod had been disciplined by our Committee on Professional Conduct as a result of his actions in the matter before us. While the letter of reprimand mentioned by Harrod’s attorney hardly seems a sufficient punishment for Harrod’s actions, we do not know the evidence our committee had before it, and that matter is not before us now for adjudication. We point out, however, that if there were no other reason whatever for sustaining the damages award against Harrod, we would do so on the basis of the chancellor’s inherent authority to hold an officer of the court liable for an injury caused by his professional malfeasance.

Affirmed.

Purtle, J., not participating.


text:
    Larry STOKES and Sylvia STOKES d/b/a THE WESTERN SHOP v. Sybil HARRELL, d/b/a THE HARRELL AGENCY
    85-204
    711 S.W.2d 755
    Supreme Court of Arkansas
    Opinion delivered June 2, 1986

      Compton, Prewett, Thomas & Hickey, P.A., by: Floyd M. Thomas, Jr., for appellants.

      Norwood Phillips and Laser, Sharp & Mayes, P.A., for appellee.
   Steele Hays, Justice.

Larry and Sylvia Stokes have appealed from a directed verdict on behalf of Sybil Harrell, doing business as The Harrell Agency.

In 1980 the Stokeses borrowed $25,000 and opened The Western Shop in Hampton, Arkansas. At the same time the Stokeses insured the contents for $20,000 from loss by fire through The Harrell Agency and a policy was issued by Granite State Insurance Company. About three years later Mr. Stokes told Mrs. Harrell that he wanted to increase the coverage to $50,000 and on April 11,1983 a new policy was issued by Granite State in the amount of $50,000. On April 27 the shop was totally destroyed by fire.

The Stokeses and Granite State were unable to agree on the value of the contents and the Stokeses filed this action against Granite State and Sybil Harrell. The complaint asserted the plaintiffs had requested The Harrell Agency to obtain coverage based on the replacement cost of the contents, whereas the coverage provided was based on actual cash value. It alleged that if the recovery against Granite was less than the replacement cost of $50,000 the Stokeses were entitled to judgment for the difference against Sybil Harrell. At the close of the trial the court granted a motion for a directed verdict on the complaint against Sybil Harrell and the jury returned a verdict against Granite for $39,977.50.

On appeal the Stokeses urge that the trial court should not have granted a directed verdict on behalf of Sybil Harrell, but should have submitted that issue to the jury. We find no merit in their contention.

Appellants cite the rule that a directed verdict will be upheld on appeal only if reasonable minds could not reach different conclusions as to the proof, which must be judged in a light most favorable to the party against whom the motion is granted and after all reasonable inferences are drawn consistent with such proof. Bussey v. Bank of Malvern, 270 Ark. 37, 603 S.W.2d 426 (1980); Bird v. Bird, 254 Ark. 858, 497 S.W.2d 659 (1973).

The testimony revealed the Stokeses never asked for replacement coverage, but merely assumed that is what they had received when they, took out the policy. The Stokeses amended their complaint during trial to allege negligence on the- part of Mrs. Harrell for failing to inform them of the difference between replacement coverage and coverage based on actual cash value. Hence, the issue on appeal is whether Mrs. Harrell was under a duty to inform the Stokeses of replacement coverage, under the circumstances of this case.

We have not dealt with this question previously, but in some jurisdictions, under appropriate circumstances, courts have found such a duty on the part of the agent. See Bicknell, Inc. v. Havlin, 9 Mass. App. 497, 402 N.E.2d 116 (1980); Hardt v. Brink, 192 F.Supp. 879 (W.D. Wash. 1961). However in those cases there was an established and ongoing relationship between the insured and the agent over a period of time, with the agent actively involved in the client’s business affairs, and regularly giving advice and assistance in maintaining the proper coverage for the client. It was reasonable under those circumstances to find a special relationship, where the insured had come to expect and to rely on such advice, with a corresponding duty by the agent to advise. Other examples of “special circumstances” may be found in Barnett, Responsibility of Insurance Agents and Brokers (Matthew Bender & Co. 1979) § 3.12[3].

In general, those cases have not found a large following among the courts, rather, there is some tendency to adhere to the long established rule placing a responsibility on the insured to “educate himself concerning matters of insurance coverage.” Nowell v. Dawn-Leavitt Agency, Inc., 127 Ariz. 48, 617 P.2d 1164 (1980). The court in Nowell said:

An insurance contract arises out of the insured’s desire to be protected in a particular manner against a specific kind of obligation. It is his responsibility to adequately convey, albeit in laymen’s terms, the nature of his wishes, in order to obtain the protection requested... An agent may point out to him the advantages of additional coverage and may ferret out additional facts from the insured applicable to such coverage, but he is under no obligation to do so; nor is the insured under any obligation to respond. Nowell, supra, citing Hill v. Grandey, 132 Vt. 460, 321 A.2d 28 (1974).

See also Appleman, Insurance Laws and Practice (1981) V. 16A § 8831, p. 64. (Ordinarily there is no duty to advise the insured merely because of the agency relationship).

Under the circumstances of this case, we find nothing in the nature of a special relationship and we conclude there was no duty on the part of Mrs. Harrell to advise the Stokeses. The evidence revealed there had been no previous dealings between them, and when the insurance was applied for there was only minimum contact. Mr. Stokes testified he had a brief conversation with Mrs. Harrell when he first applied for insurance, telling her he wanted coverage for $25,000, that “she said okay, and that was the end of it.” He testified that when he raised his coverage about three years later, he briefly stopped by the agency on his way to the bank, told Mrs. Harrell to cover him for $50,000 and she just said “okay.” He made no inquiries about coverage, he simply asked that his policy limits be raised to $50,000 and made no further comments to her regarding the insurance. We also note that Mrs. Harrell testified that while replacement coverage was available at a higher premium, it was her custom to obtain coverage based on actual cash value.

There is no merit in appellant’s contention that the jury would have any basis for finding a duty on the part of Mrs. Harrell to advise. Under these circumstances, any responsibility to obtain further information as to coverage was on the Stokeses. See Nowell, supra. The trial court was correct in granting a directed verdict.

Affirmed.

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    GRIFFIN-PAYNE, INC. v. UNION BANK OF BENTON
    85-304
    710 S.W.2d 201
    Supreme Court of Arkansas
    Opinion delivered June 9, 1986

      Mitchell, Williams, Selig, Jackson & Tucker, by: James E. Smith, Jr. and Susan Gunter, for appellant.

      House, Wallace, Nelson & Jewell, P.A., by: James M. Wegener, for appellee.
   Jack Holt, Jr., Chief Justice.

Union Bank of Benton, appellee, was granted a summary judgment in its lawsuit over a promissory note against Griffin-Payne, Inc., appellant. Appellant does not argue the merits of the action on the note, but rather contends that the trial court erred in striking its answer pursuant to Ark. Stat. Ann. § 27-1142 (Supp. 1985), and that a local court rule pertaining to motions for summary judgments was not followed by the appellee. We affirm the trial court because none of the issues argued on appeal were raised below. Our jurisdiction is pursuant to Sup. Ct. R. 29 (1) (c).

Appellant was given ten days to respond to appellee’s motion to strike appellant’s answer and for summary judgment. No response was made and appellant’s counsel did not attend the hearing on the motion. We have repeatedly held that we will not consider issues raised for the first time on appeal, and that we do not have the plain error rule. Sun Gas Liquids Co. v. The Helena National Bank, 276 Ark. 173, 633 S.W.2d 38 (1982); Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980).

To avoid confusion, it should be noted that § 27-1142, which allowed a trial court to strike the answer of a defendant if it failed to include an affidavit of merit in response to a plaintiffs affidavit of no defense, is no longer the rule in Arkansas. We recently held that this statute does not conform with Ark. R. Civ. P. Rule 8, and is therefore deemed to be superseded. Borg-Warner Acceptance Corp. v. Kesterson, 288 Ark. 611, 708 S.W.2d 606 (1986). No challenge to the summary judgment was made by appellant on this basis at trial or on appeal.

Affirmed.