author: W.H. “Dub” Arnold, Chief Justice.

text:
    James L. EFURD, Qujette Efurd, Quinton V. Brandon, and Joyce L. Brandon v. Lee HACKLER and Patricia Hackler; Kenneth Ross, Sheriff of Franklin County
    98-480
    983 S.W.2d 386
    Supreme Court of Arkansas
    Opinion delivered December 3, 1998
    [Petition for rehearing denied January 14, 1999.]

      Irwin Law Firm, by: Robert E. Irwin, for appellant.

      Gordon W. McCain, Jr., for appeEees.

       Smith, J., not participating.

   W.H. “Dub” Arnold, Chief Justice.

This is an appeal from an order of the Franklin County Chancery Court dismissing the appellants’ action for lack of standing. SpecificaEy, the appeEants chaEenge the chancery court’s finding that a judgment debtor has no standing to sue a noncomplying sheriff under the provisions of Ark. Code Ann. § 16-66-118 (1987). Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 1-2(b)(1), (4), and (6) (1998). We accepted certification of this case from the Arkansas Court of Appeals because it involves an issue of first impression and substantial public interest and it raises a substantial question of law concerning the interpretation of section 16-66-118. However, we find no merit in appeEants’ arguments, and we affirm.

On or about October 3, 1990, the appeEants, James L. Efurd, Qujette Efurd, Quinton V. Brandon, and Joyce L. Brandon, entered into a contract with appeEees Lee and Patricia Hackler to purchase certain real property in Franklin County. The real estate contract required the appeEants to pay the Hacklers $1,161.83 per month. After July 1994, the appeEants stopped making the monthly payments, faEed to pay the 1993 and 1994 property taxes, and aEowed the insurance to lapse, aE of which were in violation of the contract. Subsequently, the appeEants filed suit to rescind the contract, and the Hacklers counterclaimed.

After reviewing the parties’ pleadings, the Honorable Richard E. Gardner, Jr., found that the appeEants forfeited any interest in the property because they faEed to comply with the contract’s terms, remained in possession of the property, and had no intention to pay for the property in the future. AdditionaEy, in his order dated August 28,' 1995, the chanceEor found that the contract terminated effective July 31, 1994, and, from that date, the appeEants became the Hackler’s tenants. In light of the appeEants’ faEure to make the required rental payments and the appeEants’ unauthorized sale of timber from the property, the chancellor awarded the Hacklers $29,982.71 in damages for double the property’s fair rental value, $6,000.00 in damages for double the profit derived from the timber sale, interest on the judgment, and $1,500.00 for attorney’s fees.

On September 8, 1995, the Hacklers filed a writ of execution in order to satisfy the judgment. The writ commanded the appellee Kenneth Ross, as sheriff of Franklin County, to take from the appellants certain personal property and monies whose value would equal $37,482.71, the amount of the outstanding judgment. Further, the writ ordered the sheriff to “return the writ within the statutory period required by law, and to serve the Notice attached to this writ.” The notice alerts the debtor of his right to claim that certain properties are exempt from execution and of his right to petition the court within twenty days to claim an exemption.

In a motion filed September 10, 1997, and styled “Motion for Judgment,” the appellants alleged that after receiving the writ, Sheriff Ross never returned it within the sixty-day statutory period. Therefore, they argued that Sheriff Ross was liable for payment of the entire judgment pursuant to section 16-66-118. The appellants further alleged that Sheriff Ross seized some property but that no sale was ever made because the writ had not been returned. The appellants requested a judgment against Sheriff Ross in the amount of $140,000, plus interest, to be calculated from the date the execution was due to be returned until the judgment is paid.

In response, Sheriff Ross contended that the appellants’ motion should be denied and the case dismissed because, in the absence of a contractual obligation, the appellants lacked standing to sue. In an order filed on January 14, 1998, the chancellor agreed that the appellants lacked standing to sue Sheriff Ross, dismissed the action with prejudice, and directed the appellants to pay Ross’s attorney’s fees. From this order comes the instant appeal, challenging the trial court’s dismissal of appellants’ action and asserting that a judgment debtor has standing to sue a sheriff under the provisions of section 16-66-118.

We treat the appellants’ motion for judgment as a complaint and appellee Ross’s response as a motion to dismiss. Accordingly, this court reviews a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff, here, appellants. See Hames v. Cravens, 332 Ark. 437, 440-41, 966 S.W.2d 244 (1998) (citing Neal v. Wilson, 316 Ark. 588, 595-96, 873 S.W.2d 552 (1994) (citing Gordon v. Planters & Merchants Bancshares, Inc., 310 Ark. 11, 832 S.W.2d 492 (1992); Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989)); Mid-South Beverages, Inc., 300 Ark. 204, 205, 778 S.W.2d (1989) (citing Battle, 298 Ark. 241)). Notably, a trial judge must look only to the allegations in the complaint to decide a motion to dismiss. Hames, 332 Ark. at 441 (citing Neal, 316 Ark. at 596 (citing Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992)); Mid-South Beverages, Inc., 300 Ark. at 205 (citing Battle, 298 Ark. 241)).

Assuming that the appellants’ allegations are true, specifically, that Sheriff Ross failed to timely return the writ of execution and that he failed to timely conduct a sale, the only issue before us is whether the appellants had standing, as judgment debtors, to sue Ross pursuant to section 16-66-118. Section 16-66-118 provides, in part, that:

(a) Each officer to whom any execution is delivered shall be liable and bound to pay the whole amount of money specified in or endorsed on the execution and directed to be levied, if he:
(1) Neglects or refuses to execute or levy the execution according to law; or
(2) Takes in execution any property, or if any property is delivered to him by any person against whom an execution may have been issued, and the officer neglects or refuses to make a sale of the property so delivered according to law; or
(3) Does not return the execution on or before the return day specified therein;
(c) If the officer, on the return of any execution or at the time the execution ought to be returned, does not have the money which he may have become liable to pay as prescribed in subsection (a) of this section, and does not pay the money over according to the command of the writ, any person aggrieved thereby may have his action against the officer and his sureties, upon his official bond.
(e)(1) The party aggrieved may proceed against the officer by the motion before the court in which the writ is returnable, in a summary manner, ten (10) days’ previous notice of the intended motion being given, on which motion the court shall render judgment for the amount which ought to have been paid, with interest and damages as provided in subsection (d) of this section, and award execution thereon.

In construing section 16-66-118, this court has long held that the judgment creditor is the aggrieved party who may maintain an action against an officer who fails to timely return the writ or to make a sale of the seized property. See generally Vinson Elec. Supply, Inc. v. Poteete, 321 Ark. 516, 905 S.W.2d 831 (1995). The remedies provided in section 16-66-118 are designed to benefit the creditor by bringing the debtor one step closer to satisfying the judgment via a forced payment. Moreover, the statute is highly penal in nature, and the person seeking to enforce the penalty must bring himself within both the letter and the spirit of the statute. G.F. Harvey Co. v. Huddleston, 125 Ark. 522, 189 S.W. 181 (1916).

Here, the appellants have failed to cite any apposite Arkansas case law where a judgment debtor has availed itself of section 16-66-118 remedies. Consistent with our precedent and in the absence of any compelling argument or authority, we hold that the Hacklers, not the appellants, are the aggrieved party. See Perryman v. Hackler, 323 Ark. 500, 508, 916 S.W.2d 105 (1996) (citing Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995)). Treating the appellants’ allegations as true and viewing them in the light most favorable to the appellants, we hold that the trial court did not err in granting appellee Sheriff Ross’s motion to dismiss for lack of standing. Accordingly, we affirm.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    LAWHON FARM SERVICES, et al. v. James R. BROWN
    97-1564
    984 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered December 3, 1998

      Friday, Eldredge & Clark, by: Betty J. Demory, for appellants.

      Teresa A. French, for appellee.
   David Newbern, Justice.

James R. Brown died from an injury suffered while in the employ of Lawhon Farm Services. Pursuant to Ark. Code Ann. § 11-9-527 (Repl. 1996), an Administrative Law Judge awarded workers’-compensation death benefits to his three children. The Workers’ Compensation Commission affirmed the award as did the Arkansas Court of Appeals. Lawhon Farm Services and its insurer, AG-COMP SIF Self-Insured Fund, to which we shall refer collectively as “Lawhon,” appeal. Lawhon contends that strict construction of the workers’ compensation statutes, as required by Act 796 of 1993, compels a holding that the children were not “wholly and actually dependent” on Mr. Brown at the time of the injury, and that they are not entided to dependents’ benefits. Our conclusion is that our previous interpretations of the statutory language in question remain controlling as the words of the statute have not been changed by Act 796; thus we affirm. Although this case comes to us upon review from the Court of Appeals, we treat it as an appeal to us of the decision of the Commission. See Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 381 (1997); Stucco Plus, Inc. v. Rose, 327 Ark. 314, 938 S.W.2d 556 (1997).

James R. and Lucinda Brown were married for twelve years and had two children together, Melva Sue (Susie) Brown, born June 19, 1979, and Angela Marie (Angie) Brown, born February 23, 1981. Mrs. Brown’s child from a previous marriage, Jamie Lee, was adopted by Mr. Brown. The Browns separated in July 1992 and were divorced in January 1993. Mr. Brown was awarded custody of Susie and Angie, and Mrs. Brown was awarded custody of Jamie Lee. Neither party was ordered to pay child support. Mrs. Brown later married David H. Penick.

Mr. Brown died in June of 1994. Mrs. Penick claimed death benefits for the children in accordance with § 11-9-527. Lawhon denied the claim. At a hearing before the Administrative Law Judge, the parties stipulated that Mr. Brown died while in the course and scope of his employment with Lawhon. They also stipulated that Mr. Brown was the father of Jamie Lee, Susie, and Angie.

Lawhon appeals on the basis that the Commission erred in interpreting § 11-9-527 in light of the “dramatic changes” made to the workers’ compensation law by Act 796. Lawhon contends that our case law dealing with dependents’ benefits is now in conflict with § 11-9-527 and should not be applied to cases arising after July 1, 1993, the effective date of Act 796. Additionally, Lawhon contends that the evidence presented was insufficient to support the award.

The Commission made these findings of fact. Susie and Angie lived with Mr. Brown from January 1993 until the fall of 1993. Mr. Brown totally supported Susie and Angie when they lived with him. During that time, Mr. Brown also bought clothes and school supplies for Jamie Lee when she needed them and gave her money occasionally. When the children were visiting with Mrs. Penick, Mr. Brown sometimes gave money to Susie for their return trip to Mrs. Penick’s house in McGehee. During visitation of Susie and Angie with Mrs. Penick, Mr. Brown bought groceries for them and allowed Mrs. Penick to use some of his furniture.

Mr. Brown asked Mrs. Penick, who resided in McGehee, if she would send the children to school there in the fall of 1993. She agreed, and Mr. Brown took them shopping for school supplies and clothes. Although the children were all living with Mrs. Penick, the original custody order remained unaltered. Mr. Brown took Susie back to his residence in McCrory in August 1993 after Mrs. Penick had requested help because Susie refused to attend school in McGehee. Mr. Brown continued to help Mrs. Penick with expenses for Angie and Jamie Lee when Mrs. Penick asked for it, and he gave Angie some money directly.

In January 1994, Mr. Brown returned Susie to Mrs. Penick, because he couldn’t “do anything with her.” He then bought groceries for the family, and bought the children a stereo and a Nintendo set. He also gave them money, and bought their school supplies. Susie continued to refuse to go to school, and Mrs. Penick filed a family-in-need-of-services petition. The petition was denied. Mrs. Penick consulted an attorney to petition for a change of legal custody and an order of child support, but she was unable to afford to proceed in chancery court. She also sought help from a Child Support Enforcement Unit to obtain a support order, but she was unable to do so prior to Mr. Brown’s death.

1. Statutory construction

Section 11-9-527 provides death benefits for dependents of workers who die in work-related accidents. It states, in pertinent part:

(c) Beneficiaries — Amounts. Subject to the limitations as set out in §§ 11-9-501 — 11-9-506, compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon the deceased employee in the following percentage of the average weekly wage of the employee and in the following order of preference:
(l)(A)(i) To the widow if there is no child, thirty-five percent (35%), and the compensation shall be paid until her death or remarriage.
(ii) However, the widow shall establish, in fact, some dependency upon the deceased employee before she will be entitled to benefits as provided in this section;
(B)(i) To the widower if there is not child, thirty-five percent (35%) and the compensation shall be paid until his death or remarriage.
(ii) However, the widower shall establish, in fact, some dependency upon the deceased employee before he will be entitled to benefits as provided in this section;
❖ * * *
(3) (A) To one (1) child if there is no widow or widower, fifty percent (50%).
(B) If more than one (1) child, and there is no widow or widower, fifteen percent (15%) for each child, and in addition thereto, thirty-five percent (35%) to the children as a class, to be divided equally among them;
* * * *
(h) Determination of Dependency. All questions of dependency shall be determined as of the time of the injury.
(i) Partial Dependency. (1) If the employee leaves dependents who are only partially dependent upon his earnings for support at the time of injury, the compensation payable for partial dependency shall be in the proportion that the partial dependency bears to total dependency.

Although reference was made during oral argument of this case to subsection (i)(l) and the thought that the “partial dependency” provision might apply, no such argument was made to the Commission. The issue before the Commission and in this appeal remains solely whether the children were “wholly and actually” dependent upon Mr. Brown in accordance with § 11-9-527(c).

Lawhon relies on Ark. Code Ann. § 11-9-1001 (Repl. 1996), which is that part of Act 796, entitled “Legislative Declaration,” which provides in part that “it is the specific intent of the Seventy-Ninth General Assembly to repeal, annul, and hold for naught all prior opinions or decisions of any administrative law judge, the Workers’ Compensation Commission, or courts of this state contrary to or in conflict with any provision in this act.” Also cited is the change in Ark. Code Ann. § 11-9-704(c)(3) (Repl. 1996), which states that the “Administrative Law Judge, the Commission, and any reviewing courts shall construe the provisions of this chapter strictly.”

Lawhon urges that these changes have been recognized in recent case law, such as City of Blytheville v. McCormick, 56 Ark. App. 149, 939 S.W.2d 855 (1997), in which the Court of Appeals indicated that it would be wrong to rely on former law or its construction to determine the meaning of “wholly and actually dependent.” In that case, a firefighter had a second heart attack on the job, and the Commission determined that it was a work-related “accident.” The City argued that, because Act 796 changed the former practice of liberal construction and required that the provisions of the Act be construed stricdy, the definition of “accident” that was the product of liberal statutory construction should no longer be applied. The Court of Appeals recognized that Act 796 called for strict construction but stated that it was not relying on the former law or its construction in determining the meaning of “accident.” Instead, the Court relied on the rules of statutory construction, one of which is to place the word “accident” as used in that section next to other relevant statutory provisions to give it a meaning and effect derived from the whole. Section 11 — 9—102(5)(A)(i) defined the word “accident” as an event “caused by a specific incident and identifiable by time and place of occurrence.” That construction of the word in conjunction with the evidence presented about the event required affirmance.

Just as the City of Blytheville argued in the cited case, Lawhon urges that we reverse the Commission because it relied on the definition given “wholly and actually dependent” by cases decided prior to Act 796. The earlier law fostered liberal interpretation due to the remedial purposes of the legislation. See Ark. Code Ann. § 11-9-704(c)(3) (1987). Lawhon argues that our prior construction conflicts with the strict construction required by § 11-9-704(c)(3) and that the General Assembly, in § 11 — 9— 1001, expressly overruled all of our liberal interpretation cases.

We construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Vanderpool v. Fidelity & Casualty Ins. Co., 327 Ark. 407, 415, 939 S.W.2d 280 (1997); Bill Fitts Auto Sales, Inc. v. Daniels, 325 Ark. 51, 55, 922 S.W.2d 718, 720 (1996). The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the General Assembly. Id. As a guide in ascertaining legislative intent, we often examine statutory history as well as conditions contemporaneous with the time of the enactment, the consequences of interpretation, and all other matters of common knowledge within the court’s, and in this case the Commission’s, jurisdiction. Citizens to Establish a Reform Party v. Priest, 325 Ark. 257, 261, 926 S.W.2d 432, 435 (1996). In construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Hercules, Inc. v. Pledger, 319 Ark. 702, 706, 894 S.W.2d 576, 578 (1995).

Strict construction means narrow construction. Arkansas Conf. Seventh Day Adventists v. Benton Cty. Bd. of Equalization, 304 Ark. 95, 800 S.W.2d 426 (1990). In Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993), we wrote that strict construction requires that nothing be taken as intended that is not clearly expressed. The doctrine of strict construction is to use the plain meaning of the language employed. Holaday v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996). Even when statutes are to be strictly construed, however, they must be construed in their entirety, harmonizing each subsection where possible. Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997).

Citing Webster’s New International Dictionary, (2nd ed. unabridged), Lawhon would have us define “wholly” as “in entirety; fully; ... to the whole extent; totally; entirely; completely; thoroughly;” and “to the exclusion of other things, solely.” “Actually” is defined as “actively” or “in act or in fact; reality; also at the present moment.” Id. Lawhon’s view of a strict construction of this section would require the children to prove that at the time of their father’s death they were entirely or completely dependent upon him for support. It is urged that the language in subsection (d)(2), which states that “benefits to an otherwise eligible child shall not terminate with the attainment of age eighteen (18) . . . ,” would not have been included if the General Assembly had intended that all children be eligible for dependents’ benefits. Lawhon argues that, if the language of the statute is too harsh and should be revised to allow children of deceased claimants to receive dependents’ benefits as a matter of law or without a showing they are actually and wholly dependent or have a reasonable expectation of support, then it is the responsibility of the General Assembly, and not that of a court, to make the revision.

The history of § 11-9-527 and the record of our interpretation of it are helpful. Originally, the term “wholly dependent” was construed to refer to those ordinarily recognized in law as dependents. A conclusive presumption thus arose to the effect that a wife or child of a deceased employee who was killed in the course and scope of his employment was a dependent for purposes of the statute. See Chicago Mill & Timber Co. v. Smith, 228 Ark. 876, 310 S.W.2d 803 (1958). In 1976, the General Assembly amended § 11-9-527 to provide that a widow or widower shall establish “actual” dependency before she or he will be entitled to benefits. We interpreted that change as eliminating the conclusive presumption and requiring a widow to establish facts showing dependency upon the decedent before being entitled to benefits. Roach Mfg. Co. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979). We held that dependency was to be determined in light of the surrounding circumstances, citing Smith v. Farm Service Coop., 244 Ark. 119, 424 S.W.2d 147 (1968), and in light of prior events and not controlled by an unusual, temporary situation, citing Nolen v. Wortz Biscuit Co., 210 Ark. 446, 196 S.W.2d 899 (1946).

While the widow in the Roach Mfg. Co. case failed to show that she was actually dependent on the decedent, her child was held to be actually dependent. We quoted from Professor Larson’s treatise: “Proof of bare legal obligation to support, unaccompanied by either actual support or reasonable expectation of support, is ordinarily not enough to satisfy the requirement of actual dependency.” Larson, Workmen’s Compensation Law § 63 (1976). Because the widow had not attempted to obtain support for herself, she was unable to meet the requirement, but we held that the child, unable to act for herself, was not bound by the ruling with respect to the widow and was dependent, as she had a reasonable expectation of support from the deceased worker.

The Commission ruled that all three children in this case were “wholly dependent” upon Mr. Brown in accordance with the interpretation of that term in Chicago Mill & Lumber Co. v. Smith, supra. The requirement of “actual dependency,” added to the statute in 1979, as interpreted in Roach Mfg. Co. v. Cole, supra, was met as well. The Commission ruled that the children had a “reasonable expectancy of future support” and were “wholly and actually” dependent on Mr. Brown at the time of his work-related death.

The General Assembly is presumed to be familiar with this Court’s interpretations of its statutes, and if it disagrees it can amend the statutes. An example occurred when the word “actually” was added to the provisions of § 11-9-527 applying to widows and widowers subsequent to our decision in the Chicago Mill & Timber case. Without such amendments, however, our interpretations of the statutes remain the law. Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997). Although aware of our interpretation, the General Assembly made no change to § 11-9-527(c) in the 1993 amendments. Nor do we agree that § 11-9-1001 has annulled our decisions interpreting the statute. Section 11-9-1001 purports to annul decisions that are inconsistent with Act 796. We do not regard our prior decisions as being inconsistent with Act 796 as they are interpretations of § 11-9-527 that remain unchanged by that Act. Interpretation of statutes is the proper function of this Court.

Applying the dictionary definitions urged by Lawhon would mean that a minor child would never be entitled to the death benefits specified in § 11-9-527(c)(3) where the parents were divorced and the child received any support whatever from the surviving parent. That would be an absurd result, and we will not adopt such an interpretation. Citizens to Establish a Reform Party v. Priest, 325 Ark. 257, 926 S.W.2d 432 (1996); Henson v. Fleet Mortgage Co., 319 Ark. 491, 892 S.W.2d 250 (1995). We are confident our General Assembly could not have intended the result suggested by Lawhon.

2. Sufficiency of the evidence

The Workers’ Compensation Commission found specifically that Mr. Brown was actually supporting his children prior to his death. While it was not in the form of child-support payments, he was contributing to their welfare by spending money for their support. Mr. Brown was the legal custodian of two of the children, and no doubt he would have been found to have had an obligation to support them as well as the child of whom Mrs. Penick had legal custody if the matter had arisen in a support proceeding.

Lawhon’s argument that the evidence is insufficient to support the Commission’s decision is inextricable from its argument that our Roach decision has been overruled and that we therefore should not consider whether the evidence was sufficient to show a reasonable expectation of support as satisfying the “wholly and actually” language. Having dealt with that issue above, we need only say here that, in determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998); Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). Our conclusion is that the evidence supporting the Commission’s decision, i.e., that the children had a reasonable expectation of support from Mr. Brown, is substantial.

Affirmed.

Corbin, J., not participating.


author: Robert L. Brown, Justice.

text:
    CITY of MAUMELLE, Arkansas v. MAUMELLE LODGE of the FRATERNAL ORDER of POLICE, Jeffery D. Sackoff and Jimmy P. Hansard
    98-553
    983 S.W.2d 123
    Supreme Court of Arkansas
    Opinion delivered December 3, 1998
    [Petition for rehearing denied January 14, 1999.]

      Thurman, Lawrence & Heuer, PLC, by: Richard L. Lawrence, for appellant.

      Montgomery, Adams & Wyatt, PLC, by: Orin Eddy Montgomery, for appellees.

       Smith, J., not participating.

   Robert L. Brown, Justice.

The appellant, City of Maumelle, Arkansas, appeals from an order dismissing its complaint to remove a proposed city ordinance from the election ballot in Maumelle. The City claims on appeal that the proposed ordinance is unconstitutional and that the ballot title was misleading. We affirm the dismissal order due to a flagrantly deficient abstract.

In 1996, appellee Maumelle Lodge of the Fraternal Order of Police drafted and circulated an initiative petition containing a proposed city ordinance that would, among other things, require the City to raise and maintain the pay of the employees of the Maumelle Department of Public Safety to achieve parity of pay with the North Little Rock Police Department. The Board of Directors of the City refused to adopt the proposed ordinance and filed a complaint prior to the general election on November 5, 1996, for injunctive and declaratory relief. The complaint requested that the proposed ordinance be removed from the ballot or, alternatively, that the election board be prohibited from counting any votes cast in favor of the initiative. The City’s complaint alleged that the ordinance was unconstitutional and that the ballot title was insufficient. The trial court stayed the matter until November 6, 1996, the day after the election. At the ensuing trial of the matter on October 7, 1997, the trial court concluded that the ballot title for the ordinance fairly conveyed the scope and import of the issue before the voters and that the proposed ordinance was valid under the Arkansas Constitution. The court then dismissed the City’s complaint.

The City takes strong issue with the trial court’s findings and conclusions but fails to include in its abstract of the record “material parts of the pleadings . . . documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” See Ark. Sup. Ct. R. 4-2(a)(6). For example, though one of the issues raised to this court on appeal is whether the ballot title fairly reflects the proposed ordinance, the City has abstracted neither for this court’s review. The appellees did quote what purports to be the ballot title in the body of their argument, but we still have no ordinance abstracted with which to compare it. Furthermore, the City has not abstracted the initiative petition which contained the proposed ordinance and the ballot title; nor did it abstract the answers of the various appellees to its complaint.

Without the precise ordinance before us, it is impossible to determine its constitutionality or whether the ballot title accurately describes it. The fact that these documents may be contained in the one record filed with the Supreme Court Clerk does not salvage this appeal. We have been resolute and consistent in holding that all material information must be included in the abstract and that we will not be placed in the position of having seven justices scour the one record for the absent information. See Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997); Kearney v. Committee on Prof Conduct, 320 Ark. 581, 897 S.W.2d 573 (1995); Stroud Corp., Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994).

We affirm the trial court’s order of dismissal pursuant to Ark. Sup. Ct. R. 4-2(b)(2).

Affirmed.


text:
    FARM BUREAU POLICY HOLDERS and Members, Dennis Lee, Representative v. FARM BUREAU MUTUAL INSURANCE COMPANY of Arkansas, Inc., and Southern Farm Bureau Casualty Insurance Company
    97-1028
    984 S.W.2d 6
    Supreme Court of Arkansas
    Opinion delivered December 3, 1998
    [Petition for rehearing denied January 14, 1999.]

      Gibson Law Office, by: Charles S. Gibson and C.S. "Chuck” Gibson II, for appellant.

      Friday, Eldredge & Clark, by: Robert S. Shafer and William A. Waddell, Jr., for appellee Farm Bureau Mutual Insurance Company of Arkansas, Inc.

      Laser, Wilson, Bufford & Watts, P.A., by: Sam Laser and Brian A. Brown, for appellee Southern Farm Bureau Insurance Company.

       Glaze, Corbin, Imber, Thornton, and Smith, JJ., not participating.

   Robert L. Brown, Justice.

This appeal arises out of a class-action lawsuit brought by appellant Dennis Lee as class representative for Farm Bureau policyholders and members. The appellees, Farm Bureau Mutual Insurance Company of Arkansas, Inc. (FBM), and Southern Farm Bureau Casualty Insurance Company (SFB), are carriers for automobile insurance and were the defendants in the lawsuit. The class was certified by the trial court in 1994 pursuant to Ark. R. Civ. P. 23 and consisted of all current and past automobile policyholders (since January 25, 1989), who had paid Farm Bureau membership dues. We affirmed the certification. See Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Farm Bureau Policy Holders, 323 Ark. 706, 918 S.W.2d 129 (1996). After a seven-day trial, the chancery judge entered judgment in favor of the automobile carriers. Lee now raises 13 points for reversal. We affirm the decree of the chancery judge.

On January 25, 1994, Dennis Lee filed a class-action lawsuit against the two auto carriers, FBM and SFB. In his complaint, Lee alleged that the two carriers wrongfully collected amounts in excess of the stated premium from their auto policyholders. Specifically, he alleged that the collection of county Farm Bureau membership dues constituted a breach of contract, fraud, and unjust enrichment.

It is important at the outset to describe the Farm Bureau structure. Each county in Arkansas has a county Farm Bureau organization. The 76 county Farm Bureaus are affiliated with the Arkansas Farm Bureau Federation, which is affiliated with the American Farm Bureau. Over the years, county Farm Bureaus in Arkansas have offered their members automobile insurance through two carriers, FBM and SFB. FBM has interlocking board members with the board of directors of the Arkansas Farm Bureau Federation. SFB has.three board members in common with the Federation, and the Federation owns 20 percent of the stock of SFB through a subsidiary. According to FBM and SFB bylaws, these two auto carriers may only sell insurance to members of county Farm Bureaus. Before 1993, both insurance companies would cancel their auto policies during the term of the insurance when an insured failed to maintain county Farm Bureau membership. This practice was discontinued, and after 1993, when country Farm Bureau memberships lapsed, policies were non-renewed only at the end of the policy period.

Turning to the facts of this case, Lee became a Farm Bureau member in 1988 when he approached a local FBM and SFB agent, Melvin Hicks, seeking auto insurance coverage. Hicks quoted rates for the auto insurance and told Lee that he would have to join the county Farm Bureau in order to be eligible for insurance with the company. Lee orally agreed to become a county Farm Bureau member, and Hicks completed a membership application for him, which did not require Lee’s signature. Lee gave Hicks a check for $35, which was the amount of the membership dues. Lee then completed the auto insurance application, signed it, and paid the premium owing with a separate check. Hicks sent the insurance application to the company’s Little Rock office to be processed. After Lee’s application was accepted, he received a declaration sheet stating that the company insuring him was appellee, SFB. The actual policy of insurance showed both SFB and FBM as the carriers, but Lee never received the policy. Each year thereafter, Lee received a Farm Bureau membership notice from the county Farm Bureau. Farm Bureau membership terms, including Lee’s, commenced on November 1 and ended on October 31 of each year. The carrier’s records show that Lee paid his membership dues each year by a check separate and apart from his insurance premium payments.

On May 11, 1992, Lee requested that his auto policy be canceled because he no longer had a car. He continued to pay his county Farm Bureau membership dues and also continued to maintain a health insurance policy through Farm Bureau. Lee reinstated his auto policy on April 2, 1993, and on January 17, 1994, he was notified that payment of his county Farm Bureau dues was necessary in order to continue his insurance coverage. Lee did not pay the membership dues.

On January 25, 1994, Lee filed this class-action lawsuit with the class comprised of over 180,000 past and present policyholders (since January 25, 1989) of either SFB or FBM or both. The remedy sought was a constructive trust for all dues wrongfully collected from the class for this period of time. On February 11, 1994, Lee was notified that his auto coverage would not be renewed unless he paid the county Farm Bureau membership dues. Lee then paid his insurance premium, and his auto policy was renewed without an active membership in the county Farm Bureau because the person renewing the policy did not verify whether his county Farm Bureau membership was current. On October 2, 1994, Lee’s auto policy was non-renewed due to failure to pay county membership dues.

After the seven-day trial, the chancery judge ruled that Lee faded in his proof; that membership dues were not a premium required to be stated in the policies; that Lee waived his claim because he knew or should have known that dues were for a Farm Bureau membership; that insurance agents or anyone connected with FBM and SFB had not committed fraud; that Lee had orally contracted to join the county Farm Bureau and to pay membership dues; that the membership-dues obligation was a prerequisite and not a condition of insurance coverage; and that because Lee’s claim had failed, the class’s claims should be dismissed with prejudice.

I. Membership Dues

Lee raises three points on appeal that involve the county Farm Bureau membership dues: (1) whether the dues were a condition of insurance rather than a prerequisite; (2) whether the membership transaction was a legitimate oral contract between the agents and insureds; and (3) whether collection of the dues constituted a breach of the insurance contract.

Several statutes are pertinent to these inquiries. The first defines “premium,” as the term is used in the Insurance Code: “Premium is the consideration for insurance, by whatever name called. Any assessment, or any membership, policy, survey, inspection, service, or similar fee or charge in consideration for an insurance contract is deemed part of the premium.” Ark. Code Ann. § 23-79-101(2) (Repl. 1992).

A second statute, Ark. Code Ann. § 23-79-112(b)(5) & (8) (Repl. 1992), sets out the information that must be contained in an insurance policy, including the premium amount and all conditions “pertaining to the insurance.” A third statute states:

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(a) No person shall willfully collect any sum as premium or charge for insurance, which insurance is not then provided or is not in due course to be provided, subject to acceptance of the risk by the insurer, by an insurance policy issued by an insurer as authorized by this code.
(b) (1) No person shall willfully collect as premium or charge for insurance any sum in excess of the premium or charge applicable to such insurance in accordance with the applicable classifications and rates as filed and approved if necessary by the commissioner; . . .
(5) [This provision shall not be deemed to prohibit] the collection of membership dues by a property and casualty agent when membership of the applicant in an organization is a prerequisite of the insurer to the issuance of coverage.

Ark. Code Ann. § 23-66-310(a) & (b)(1) & (5) (Repl. 1994).

Lee, as a result, argues that the chancery judge should have concluded that § 23-79-112(b) (8) mandates that the membership-dues requirement be stated in the policy as a condition “pertaining to the insurance” and that subsection (5) of the same statute requires that policies specify the dues as part of the “premium.” He contends that the chancery judge erred when he found that the $35 dues obligation is not required to be set forth in the insurance policy because it is not a premium or a condition of insurance. Lee further contends that the auto carriers’ practice of enforcing payment of membership dues during the term of active insurance policies converts payment of the dues from a prerequisite for coverage to a condition of maintaining coverage. Thus, according to Lee, that condition had to be stated in the policy.

Lee further urges that this court follow a decision by the Louisiana Court of Appeals which held that membership fees charged by State Farm Mutual Automobile Insurance Company were premiums and were required to be disclosed in the insurance policy. See State Farm Mut. Auto Ins. Co. v. Louisiana Ins. Rating Comm’n, 79 So.2d 888 (La. 1955). In that case, Louisiana had a statute similar to ours in Arkansas which specified that a membership fee is a premium if charged and received as consideration for the insurance. The Louisiana appellate court said, in concluding that the membership fee paid to State Farm was part of the premium:

It is a play on words to state that the policyholder pays this membership fee for the purpose of applying for insurance and not for the purpose of obtaining the insurance. The same amount of money leaves his pocket (the membership fee and the initial premium are collected simultaneously, according to the record before the Commission) with the same identical purpose as when paid to other companies, and is used identically by State Farm as by other companies.

State Farm, 79 So.2d at 895.

The auto carriers counter that county Farm Bureau membership is clearly a “prerequisite of the insurer to the issuance of coverage” within the meaning of § 23-66-310(b)(5) and that the practice of collecting county Farm Bureau membership dues as a separate transaction at the time a person applies for Farm Bureau insurance is appropriate. They, in addition, note that if a first-time insurance applicant is rejected for coverage, that person’s membership dues are not automatically refunded because that person may choose to remain a county Farm Bureau member if he or she desires. With regard to Lee’s argument about the collection of membership dues during the active term of membership, the auto carriers contend that this practice only reinforces their position that Farm Bureau membership is a true prerequisite within the meaning of the statute, with the payment of dues being a first step to both the initiation of a Farm Bureau insurance policy and to any renewal of the policy. With regard to State Farm Mut. Auto Ins. Co. v. Louisiana Ins. Rating Comm’n, supra, they emphasize that the membership fees in that case were paid directly to State Farm to participate in the mutual insurance company.

We agree with the auto carriers and with the chancery judge’s finding that the membership fee in the instant case was a prerequisite and not a condition of insurance or a part of the premium. First, with respect to the State Farm case, the membership fee charged by State Farm went directly to the insurance company and was used in part to pay the operating expenses of the company. Here, on the other hand, membership dues charged by the county Farm Bureaus and paid by the members are divided as follows: 45% to the county Farm Bureau, 45% to the Farm Bureau Federation, and 10% to the national organization. There was no testimony at trial that any portion of the membership dues went to the auto carriers. Indeed, the testimony was to the effect that the membership dues were reflected in the income of the Arkansas Farm Bureau Federation.

Furthermore, the structure of State Farm and the structure of Farm Bureau and its auto carriers vastly differ. State Farm does not have separate county agencies that represent interests apart from the insurance area. State Farm is primarily in the business of selling insurance. County Farm Bureaus, however, are not in the business of selling insurance. The stated purposes of Farm Bureau, as set out in its membership handbook, are:

Farm Bureau was and is organized to unite farm and ranch families for the purpose of identifying, analyzing and solving problems. Therefore, it is only limited in what it can and should do by what its members want and are willing to do through it.
Farm Bureau is a farmer’s organization - financed by annual dues and run BY farmers FOR farmers.
The overall objective of Farm Bureau is to improve net farm income.

Finally, persons joining county Farm Bureaus are joining the county farm organization, while persons joining State Farm are joining a mutual insurance company.

The State Farm case can be further distinguished by examining how State Farm planned to use the membership fee. In that case, State Farm intended to advertise a reduction in rates after instituting the membership fee. In an effort to protect the public from this misleading practice, the Insurance Commission said:

The company has already demonstrated how it would take advantage of the so-called “membership fee” if it were granted, and the commission finds that applicant should not be allowed to advertise a 25% reduction in premiums while actually employing a unique play on words to designate a part of the premium as a “membership fee.”

State Farm, 79 So.2d at 894.

In the instant case, we find it telling that membership in a county Farm Bureau entitles that member to benefits apart from simply receiving auto insurance. A membership packet that was introduced at trial shows those benefits to include receipt of a Farm Bureau publication, free accidental death insurance on the member’s entire family, estate planning clinics, the Southern Farm Bureau Cash Fund for investments, health insurance available through a special Blue Cross-Blue Shield plan, marketing advice systems to help farmers market commodities, a child safety car-seat program, and a $500 reward program to anyone furnishing information leading to the arrest and conviction of persons stealing, destroying or harming property on the farm or residential premises of members.

We are mindful that the county Farm Bureaus essentially benefit members who are farmers. Moreover, it would be disingenuous not to admit that for non-farmers the availability of auto insurance at a competitive cost is a primary reason for joining the Farm Bureau organization. Yet, the point is that a Farm Bureau membership is not a mere charade for non-farmers but does provide tangible benefits.

We hold that the chancery judge was correct in finding that the membership dues were not a premium. The chancery judge, moreover, was also correct in concluding that membership in the county Farm Bureau was an annual prerequisite for determining éligibility for coverage and not a condition of insurance.

We further agree that the oral contracts for Farm Bureau membership were between the county Farm Bureaus and their members, and not between the auto carriers and the insureds. Under these circumstances, there could be no merger of the oral membership contracts into the insurance contract as they were separate agreements. “Merger refers to the absorption of one contract into another subsequent contract and is largely a matter of intention of the parties .... Merger happens when the same parties to an earlier agreement later enter into a written integrated agreement covering the same subject matter.” Fish v. Tandy Corp., 948 S.W.2d 886, 898 (Tex. App.—Fort Worth 1997). In the instant case, the oral membership contract was between Lee and the county Farm Bureau. The auto insurance contract, on the other hand, was between Lee and the auto carrier. Hence, merger cannot apply because the same parties and the same subject matter are not involved. Further, absent merger of both contracts into one contract, the parol evidence rule will not apply. See Fish, 948 S.W.2d at 899.

In sum, there was no breach of contract resulting from the Farm Bureau membership agreements. We affirm the chancery judge on these points.

II. Endorsement X

Lee next claims that Endorsement X to his auto policy clearly imposed a dues obligation on him. The dues, he contends, were in the nature of a condition of insurance which violated Ark. Code Ann. § 23-79-112(b)(8).

Endorsement X reads:

As a condition precedent to your purchase of this policy and your maintenance of insurance hereunder, you must make application to be a member of and maintain your membership in the applicable local county Farm Bureau agricultural organization and affiliated state Farm Bureau agricultural organization (hereinafter collectively “Farm Bureau Federation”). Your failure to apply for membership and maintain your membership with the applicable Farm Bureau Federation as our sponsoring organization, including but not limited to your failure to pay the required membership dues to said Farm Bureau Federation, shall require the cancellation or non-renewal of your policy by us. Dues payable to Farm Bureau Federation are in consideration of membership in Farm Bureau Federation and other agriculture related services from Farm Bureau Federation and are not premiums, are not consideration of coverage under this policy, and are not payable to us.

This issue appears to be essentially the same issue raised under Point I, albeit dressed in different clothing. But, in addition, the relevancy of Endorsement X to the instant case is highly questionable in that the endorsement was added to Lee’s auto policy after his lawsuit was filed. Members of the class were those Farm Bureau members who purchased auto insurance between January 25, 1989, and January 25, 1994 — the date the class-action complaint was filed. Changes in insurance policies made after the litigation was commenced would seem to have no bearing on the class as defined.

Lee’s contention regarding Endorsement X has no merit.

III. Contract with FBM

For his next point, Lee urges that the trial judge clearly erred in finding that FBM had not issued any policies of insurance to class members and, therefore, could not be subject to Lee’s claims. The foundation for Lee’s argument is that even though the Declaration Sheet showed SFB as the sole auto carrier, the heading of the policy itself shows FBM as well as SFB as the carriers, and the definition section of the policy states: “[t]he words ‘we,’ ‘us,’ ‘our,’ and ‘the company’ mean FBM.”

Our standard of review for a finding of fact by a trial judge is whether that finding is clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a). On this point, we cannot say the trial judge clearly erred. The facts supporting the trial judge’s finding are considerable. First, the declaration sheet issued to Lee showed that the coverage was through SFB and not FBM. Lee further testified that all subsequent declaration sheets he received showed SFB as the insurer. Second, a representative from FBM testified that FBM had not issued auto insurance in Arkansas since 1985. The FBM representative also testified that the policy definition which listed only FBM was a mistake in the policy, which stemmed from the approval of the policy as a dual policy form. Third, and perhaps most important, Lee testified that he never received the policy with the FBM language and was not aware of it. Neither Lee nor any other class member testified that they were operating under the belief that FBM was their insurer. It is difficult to give credence to the argument that FBM held itself out as Lee’s insurer, when from the undisputed facts, Lee had no idea that anyone but SFB was his insurer.

We affirm the trial judge’s finding.

IV. Amendment to Complaint FBM Breach

Lee filed a second amended complaint on April 13, 1995, which was after class certification by the trial judge. There, he alleged a claim for breach of contract based upon the auto carriers’ refusal to recognize class members as mutual company policyholders with attendant rights and benefits and prayed for an accounting of profits and premiums and a declaration of breach and damages. The trial judge granted the carriers’ motion to strike Lee’s second amended complaint. The judge specifically found that the additional claim of breach of contract relating to mutual company membership was not among the issues certified by the trial judge or affirmed by this court on appeal.

Lee argues that the trial judge was wrong in finding that a plaintiff must state all causes of action prior to class certification. He points out that the same facts are present that initially warranted class certification, the amendment to the complaint does not add new parties, the class notice informed all class members of both claims set out in the second amended complaint, and because of the time between the amendment and the trial, the amendment did not prejudice the auto carriers. He concludes that where it is clear that a post-certification claim does not disturb the integrity of the court’s certification, the new claim should be allowed.

In making his ruling on this issue, the trial judge referred to the potential for a multiplicity of suits on the mutual-company issue but also to the lateness of the amendment to the complaint raising the new issue. What bothered the trial judge concerns us also, and that is whether amending a complaint after class certification would lead to a successive appeal to this court. We can easily see how permitting a new issue to be raised after class certification might well lead the auto carriers to file a second interlocutory appeal contesting the new issue.

From the language of the trial judge’s order, it is clear that he allowed Lee to present evidence of breach of contract relating to the mutual policy, but he would reserve ruling on whether the complaint could in fact be amended. The judge’s ultimate order disallowing consideration of the issue appears to be well reasoned, and we affirm his ruling that the issues to be tried must be limited to those raised before class certification. We hold that the trial judge did not err in ruling as he did.

V. Failure to Rule on Public Policy

A cornerstone of Lee’s complaint was that offering Farm Bureau memberships to non-farmers violated statutory law and, therefore, the public policy of the State. He cites this court, in particular, to Act 116 of 1921, codified at Ark. Code Ann. § 2-2-407 (Repl. 1996), which, he asserts, limits Farm Bureau membership to those engaged in the production of agricultural products. Thus, according to Lee, the membership agreements to non-farmers were void. The trial judge, however, failed to rule on this issue, and Lee contends that this was error.

We do not reach the merits of this issue because it is procedurally barred. It is incumbent upon the appealing party to obtain a ruling on an issue in order to preserve it for our review. Fisher v. Valco Farms, 328 Ark. 741, 945 S.W.2d 369 (1997). The trial judge never ruled on the ultimate issue raised by Lee regarding the State’s public policy, even though he did find that Act 116 was material to the question posed. We will not review an issue where the trial judge has not first decided it. Id.

VI. Constructive Fraud Amendment

Lee next argues that it was error for the trial judge to refuse to permit him to amend his complaint to conform to the proof on constructive fraud. He adduces Ark. R. Civ. P. 15(b) for the proposition that issues tried by express or implied consent shall be treated as if they were raised in the pleadings. He admits that when the non-moving party objects to the amendment, it becomes an issue of trial-judge discretion. But he contends that in denying the amendment for a constructive-fraud claim, the trial judge abused his discretion.

To establish constructive fraud, a plaintiff must show: (1) a false representation of material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; and (5) damage suffered as a result of the reliance. Scollard v. Scollard, 329 Ark. 83, 947 S.W.2d 345 (1997). Constructive fraud can exist in cases of rescission of contracts or deeds and breaches of fiduciary duties, but a plaintiff must show a material misrepresentation of fact. Id.

We agree with Lee on this point. The trial judge abused his discretion by denying the amendment to pleadings under Rule 15(b). Nevertheless, the error is harmless because we further conclude that Lee did not prevail on either a claim of fraud or constructive fraud, as discussed under the next point.

VII. Fraud and Constructive Fraud

Lee next maintains that the auto carriers made false representations of material fact when they marketed and sold Farm Bureau memberships contrary to the statutory public policy of Arkansas because those memberships are void. See Ark. Code Ann. § 2-2-407 (Repl. 1992). Thus, the auto carriers, according to Lee, were guilty of either actual or constructive fraud. Further, he claims that while the agents of FBM or SFB may have been unaware that Farm Bureau memberships sold to non-farmers were void, FBM and SFB, presumably through other officers and representatives, were both cognizant of the fact that such memberships were void.

Again, Lee obtained no ruling from the trial judge on whether memberships sold to non-farmers are void as against Arkansas’s public policy. But, in addition, there was no proof that the auto carriers’ agent, Melvin Hicks, in any way defrauded Dennis Lee or other non-farmer insureds by fading to tell them the truth about Act 116. Indeed, the proof is to the contrary because the agents believed the memberships in the county Farm Bureaus to be valid.

To be guilty of fraud or deceit, a false representation must be made. Fidelity Mortgage Co. v. Cook, 307 Ark. 496, 821 S.W.2d 39 (1991). In order to extend the tort of deceit to instances where the false representation is due to silence, this court has stated that the false representation must include “(1) concealment of material information and (2) non-disclosure of certain pertinent information.” Id. at 500, 821 S.W.2d at 42 (quoting Baskin v. Collins, 305 Ark. 137, 806 S.W.2d 3 (1991)). American Jurisprudence further illuminates the difference between concealment and mere silence.

The law distinguishes between passive concealment and active concealment, or in other words, between mere silence and the suppression or concealment of a fact, the difference consisting in the fact that concealment implies a purpose or design, while the simple failure to disclose a fact does not. Mere silence is not representation, and a mere failure to volunteer information does not constitute fraud. Thus, as a general rule, to constitute fraud by concealment or suppression of the truth there must be something more than mere silence or a mere failure to disclose known facts. Where there is no obligation to speak, silence cannot be termed “suppression,” and therefore is not a fraud. Either party may, therefore, be innocently silent as to matters upon which each may openly exercise his judgment.
Silence, in order to be an actionable fraud, must relate to a material matter known to the party and which it is his legal duty to communicate to the other contracting party, whether the duty arises from a relation of trust, from confidence, for inequality of condition and knowledge, or other attendant circumstances.

37 Am. Jur. 2d Fraud and Deceit § 145.

Here, the contention is made that the auto carriers’ agents defrauded non-farmer applicants by not revealing that Farm Bureau membership was limited under Act 116 of 1921 to those engaged in agriculture. As an initial matter, we do not concede that Lee’s interpretation of Act 116 in this context is correct. But, regardless of that point, Lee presented no evidence that agents for the auto carriers were even aware that Act 116 existed, much less that they concealed or failed to disclose information about the application of the Act to non-farmer members. Nor did Lee present evidence that the auto carriers themselves were aware that the memberships might be void under Act 116. Finally, Lee presented nothing to show that the Farm Bureau Federation, if aware of Act 116, purposefully withheld that information and accepted non-farmers as members with the knowledge that non-farmer memberships were against public policy. There is nothing in the way of proof to sustain Lee’s theory of misrepresentation by concealment.

The facts and circumstances of this case do not support reversal on this point. This is essentially an issue of sufficiency of the evidence. When determining whether substantial evidence exists, we view the evidence in the light most favorable to the appellee. Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997). Substantial evidence of no fraud, either actual or constructive, exists in this case, and we affirm the trial judge.

VIII. Class Members with Comprehensive Coverage

For his next point, Lee argues that the trial judge erred in concluding that class members who possessed comprehensive automobile coverage policies should be excluded from the class. The auto carriers respond that Lee was not insured under a comprehensive automobile policy and, thus, could not be a class representative for persons insured under a different policy.

Lee offers no reasoning or legal authority as to why the trial judge erred on this issue. We have said in the past that we will not do research for an appellant and will affirm a trial judge’s decision when the appellant’s argument is neither supported by legal authority nor apparent without further research. See Hopper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997).

We fail to understand, however, how Lee as class representative can raise an issue on behalf of the class which pertains to insurance coverage that he did not have. We believe the trial judge was correct in not countenancing the claim.

IX. Other Issues

Lee takes issue with the trial judge’s ruling that the class claims were dependent upon proof presented by Lee, as class representative. This is a correct statement of the law.

Again, Lee fails to cite any legal authority to explain why the trial judge’s decision constitutes reversible error. Nevertheless, Lee’s claim is meritless because “[t]he right of the class to recover is contingent upon the right of action in the named plaintiff or plaintiffs who represent the class. If the action of these parties fails, then the class action fails also.” 59 Am. Jur. 2d Parties § 60 (1987). The decision of the trial court is affirmed.

Because we affirm on the merits of this case, we need not address Lee’s contention that the trial judge erred in his finding that Lee’s claims were barred under the statute of limitations or that Lee waived his right to proceed with his claims because of his annual renewal of his Farm Bureau membership and SFB coverage over a period of years.

Affirmed.

Special Justice Mike Rainwater joins.

Special Justice David Ethredge joins.

Special Justice Patricia Hays joins.

Special Justice Jack Lassiter joins.

Glaze, Corbin, Imber, and Thornton, JJ., not participating.


author: Annabelle Clinton Imber, Justice.

text:
    Donna DOUGLAS, et al. v. Steve HOLBERT
    98-424
    983 S.W.2d 392
    Supreme Court of Arkansas
    Opinion delivered December 3, 1998

      Crockett & Brown, PLLC, by: C. Richard Crockett and R. J. Brown, for appellants.

      Hodges & Hodges, by: David Hodges; and Gene O’Daniel, for appellee.
   Annabelle Clinton Imber, Justice.

This is a probate case. The appellants contend that the trial court erred when it refused to set aside an order distributing the proceeds of a wrongful-death action brought on behalf of Lori Lantrip Holbert’s statutory beneficiaries. We agree.

In February of 1993, Lorie Lantrip Holbert died intestate as the result of injuries she sustained during a car accident in Garland County. Ms. Holbert was survived by her husband, Steve Hoibert, her mother Donna Douglas, her father, Sam Lantrip, and her two sisters, Alicia and Janette Lantrip. Mr. Holbert subsequently filed a petition for appointment as special administrator of his wife’s estate for the purpose of bringing a wrongful-death action against those responsible for her death, and for the purpose of bringing a breach-of-contract action against her life-insurance carrier. After finding that no additional notice was required pursuant to Ark. Code Ann. § 28-48-103(b), the probate court made the following appointment:

The Court finds, for good cause shown, pursuant to the provisions of Ark. Code Ann. § 28-48-103, that a Special Administrator [Steve Holbert] should be appointed for the purpose of prosecuting a .wrongful death claim and collecting] any insurance proceeds due the Estate and the duties of the Administrator shall relate specifically to those duties that are reasonably related to the bringing of a wrongful death suit and to collect insurance proceeds due the Estate and upon termination of the duties set forth hereinabove and approval of the Court, the duties of the Special Administrator shall thereupon cease.

Pursuant to this appointment, Mr. Holbert filed a breach-of-contract action on behalf of Ms. Lantrip’s estate and a wrongful-death action on behalf of Ms. Lantrip’s statutory beneficiaries. In particular, Holbert included a prayer in the wrongful-death action for damages “sustained by Steve Holbert, the husband of the decedent, and all of the other statutory beneficiaries,” which included Donna Douglas, Sam Lantrip, Alicia Lantrip and Janette Lantrip (hereinafter “appellants”).

Approximately one year after filing the wrongful-death action, Mr. Holbert’s attorney sent the appellants a letter announcing that Mr. Holbert had been appointed Special Administrator of Lorie Lantrip Holbert’s estate, and that he had filed a wrongful-death action against those responsible for Lorie’s death. Specifically, the letter said:

Please be advised that. . . Steve Holbert, Special Administrator of the Estate of Lori Lantrip Holbert, . . . [has filed] a wrongful death suit .... As a statutory beneficiary you have the right to participate in that litigation if you desire. Because of your relationship to Lorie Holbert you have the right to participate in the wrongful death action as a beneficiary under the wrongful death statute. This is a choice you have to make. If you want to participate please contact me.
* * * *
If I do not hear from you within 15 days I will assume that you do not want to participate in this litigation.

The appellants did not respond to the letter. During the course of the wrongful-death action, Mr. Holbert did not ask the appellants to participate in any manner, nor did he keep them apprised of the progress of the lawsuit.

In March of 1995, Mr. Holbert settled the life-insurance claim for $51,650.63 with the life insurance carrier retaining certain subrogation rights to any future recovery from the defendants in the wrongful-death action. Likewise, in January of 1997, Mr. Holbert setded the wrongful-death action for $175,000. The probate court subsequently approved both settlements without prior notice to the appellants.

In May of 1997, Mr. Holbert sent Donna Douglas and Sam Lantrip a letter announcing that the probate court would hold a final hearing on Ms. Holbert’s estate. Specifically, the letter said:

This hearing will be the completion of all matters pertaining to the probate case involving Lorie Holbert, deceased, and will include, but not be limited to, the presentation of the first and final accounting by Steve Holbert as to all monies that have come through this probate proceeding, a request to distribute the funds to any and all individuals that may be entitled to recover funds that have been recovered through litigation on behalf of the probate proceeding herein, and any and all other matters that may be necessary in order to have a full and complete final adjudication on this matter.
You are advised to attend and participate to the extent you deem necessary and advisable.
Steve Holbert will present a petition asking for the distribution of the funds that have accumulated in this probate proceeding as a result of litigation instituted by Steve Holbert, Special Administrator, and anybody that may have an interest in the distribution of the funds should attend and participate to the extent they deem necessary and advisable.

The letter, however, did not specifically mention that “the funds that have accumulated in this probate proceeding as a result of the litigation instituted by Steve Holbert” included a $175,000 settlement of the wrongful-death action. Furthermore, Mr. Holbert failed to send this letter to Alicia and Janette Lantrip, the other two statutory beneficiaries of the wrongful-death action.

The probate court held the final hearing on June 3, 1997. Donna Douglas attended the hearing, and Janette Lantrip appeared on behalf of her father, Sam Lantrip. Neither was represented by counsel. During the hearing, Mr. Holbert orally announced, for the first time, that he should obtain the full amount of the wrongful-death settlement because he was the only statutory beneficiary who participated in the lawsuit. Ms. Douglas resisted Mr. Holbert’s request, and asked for a continuance to obtain legal advice. The court refused to grant a continuance.

After the hearing, the court entered an order closing Ms. Holbert’s estate. In particular, the court found that it had subject-matter jurisdiction, and that all necessary notices had been given and received. The court then found that pursuant to the wrongful-death statute, Mr. Holbert, as an individual, was entitled to all of the proceeds from the wrongful-death settlement. The remaining assets of the estate, which consisted mostly of the life-insurance settlement, were distributed to Steven Holbert, Donna Douglas, and Sam Lantrip pursuant to rules of intestate succession, Ark. Code Ann. § 28-9-214 (1987).

Soon thereafter, the appellants filed a motion to set aside the final order for numerous reasons. The probate court denied the motion. With particular relevance to this appeal, the probate court ruled that the appellants “were given ample opportunity to participate in the wrongful-death action, but declined to do so. Therefore, the Court previously awarded those proceeds to the decedent’s husband, Steve Holbert.” This appeal followed.

I. Subject-Matter Jurisdiction

The appellants question the probate court’s jurisdiction to approve the settlement of the wrongful-death action and to apportion the proceeds among the statutory beneficiaries. Although the appellants make this their second argument on appeal, we will address it first because if the lower court did not have subject-matter jurisdiction, we' do not have jurisdiction to consider the remaining issues raised on appeal. See Lawhon v. State, 328 Ark. 335, 942 S.W.2d 864 (1997); Vanderpool v. Fidelity & Cas. Ins., Co., 327 Ark. 407, 939 S.W.2d 280 (1997). In particular, we said in Jolly v. Estate of Jolly, 333 Ark. 394, 970 S.W.2d 221 (1998), that if “the probate court lacked jurisdiction of the matter at hand, so does this court.”

In Arkansas, the probate court is a court of special and limited jurisdiction having only such jurisdiction and powers as are conferred by the constitution or by statute, or necessarily incidental to the exercise of the jurisdiction and powers specifically granted. Arkansas Dept. of Human Serv. v. Estate of Hogan, 314 Ark. 19, 858 S.W.2d 105 (1993); Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984). In the most general sense, Article VII, Section 34, of the Arkansas Constitution provides that the probate court has original jurisdiction over “matters relative to . . . the estates of deceased persons ... as is now vested in the courts of probate, or may be hereafter prescribed by law.”

More specific to the facts at hand, sections 28-48-103(a) and (c) (1987) of the probate code provide that a probate court may, upon the showing of “good cause,” appoint a special administrator “for a specific time, to perform duties respecting specific property or to perform particular acts, as stated in the order of appointment.” This same statutory provision further provides that the “the law and procedure relating to personal representatives shall apply to special administrators.” Ark. Code Ann. § 28-48-103(e). Thus, there is no question that in this case the probate court had jurisdiction to appoint Mr. Holbert the special administrator of Lorie Lantrip Holbert’s estate in order to “perform” the “particular acts” of litigating the wrongful-death and life-insurance actions.

Finally, the wrongful-death statute provides that:

(g) The judge of the court in which the claim or cause of action for wrongful death is tried or is submitted for approval of a compromise settlement, by judgment or order and upon the evidence presented during trial or in connection with any submission for approval of a compromise settlement, shall fix the share of each beneficiary, and distribution shall be made accordingly. However, in any action for wrongful death submitted to a jury, the jury shall make the apportionment at the request of any beneficiary or party.
(h) Nothing in this section shall limit or affect the right of probate courts having jurisdiction to approve or authorize settlement of claims or causes of action for wrongful death, but the probate courts shall consider the best interests of all the beneficiaries under this section and not merely the best interest of the widow and next of kin as now provided by § 28-49-104.

Ark. Code Ann. § 16-62-102 (Supp. 1997) (emphasis added). Reading these two subsections together, it is clear that the probate court had the authority to approve the wrongful-death settlement under subsection (h), and that as the court approving the settlement it also had jurisdiction under subsection (g) to apportion and distribute the proceeds. Thus, we also hold that the probate court clearly had subject-matter jurisdiction to approve the settlement of the wrongful-death claim, and to apportion and distribute the proceeds among the statutory beneficiaries.

II. Distribution of the Wrongful-Death Proceeds

Although the probate court had jurisdiction to apportion the wrongful-death proceeds, we agree with the appellants that the probate court did so incorrectly when it gave the full amount to Mr. Holbert because the other statutory beneficiaries failed to participate in the wrongful-death action.

The provisions of the wrongful-death statute that are relevant to this issue are as follows:

(b) Every [wrongful-death] action shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.
* * * *
(d) The beneficiaries of the action created in this section are the surviving spouse, children, father and mother, brothers and sisters of the deceased person, persons standing in loco parentis to the deceased person, and persons to whom the deceased stood in loco parentis.
(e) No part of any recovery referred to in this section shall be subject to the debts of the deceased or become, in any way, a part of the assets of the estate of the deceased person.
(f) (1) The jury, or the court in cases tried without a jury, may fix such damages as will be fair and just compensation for pecuniary injuries, including a spouse’s loss of services and companionship of a deceased spouse and any mental anguish resulting from the death to the surviving spouse and beneficiaries of the deceased person.
* * * *
(h) Nothing in this section shall limit or affect the right of probate courts having jurisdiction to approve or authorize settlement of claims or causes of action for wrongful death, but the probate courts shall consider the best interests of all the beneficiaries under this section and not merely the best interest of the widow and next of kin as now provided by § 28-49-104.

(Emphasis added.) The plain language of subsection (b) makes it clear that a personal representative of the estate may file a wrongful-death action on behalf of the statutory beneficiaries. On this subject, we have said that the personal representative is clearly the party to bring the wrongful-death action, and that the other statutory beneficiaries have no standing to bring the lawsuit or to even choose counsel to pursue the claim. See Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990), Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985), Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961). Relying upon these three cases, the Court of Appeals held in McGuire v. Smith, 58 Ark. App. 68, 946 S.W.2d 717 (1997), that statutory beneficiaries are not entitled to notice of a petition for approval of a wrongful-death settlement. We find the reasoning in McGuire to be sound.

Once a settlement is obtained, subsection (e) declares that the settlement proceeds do not become assets of the decedent’s estate to be distributed pursuant to a will or the laws of intestate succession. See Missouri Pac. R.R. v. Keeton, 209 Ark. 605, 191 S.W.2d 954 (1946). Instead, the proceeds of a wrongful-death action are for the sole benefit of the statutory beneficiaries and may not be used to pay off debts of the estate. Brewer, supra; Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961). In this respect, we have said that the administrator is a “trustee of conduit,” Brewer, supra; Dukes, supra, who holds the proceeds of the wrongful-death action in trust “for the benefit of the widow and next of kin.” See Keeton, supra; Adams v. Shell, 182 Ark. 959, 33 S.W.2d 1107 (1930). Subsection (g) specifically provides that the proceeds of a settlement must be distributed by the court approving the settlement among all the statutory beneficiaries, which includes, under subsection (d), the decedent’s spouse, parents, and sisters. Finally, in Bell v. Estate of Bell, 318 Ark 483, 885 S.W.2d 877 (1994), we said that:

Subsections (g) and (h) of the general wrongful death statute, section 16-62-102, provide that the court approving a compromise settlement shall fix the share of each beneficiary, upon the evidence, and that the probate court shall consider the best interests of all the beneficiaries. Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981). Subsection (f) of the statute directs that, if the case is tried, the sum fixed for damages shall be that which is “fair and just compensation for the pecuniary injuries, including a spouse’s loss of the services and companionship of a deceased spouse and mental anguish resulting from the death, to the surviving spouse and next of kin of the deceased person.”
The factors set forth in subsection (f) also guide the probate court’s determination of the apportionment of the setdement proceeds in those cases where the damages issue is not tried. See Estate of Campbell, 294 Ark. 619, 745 S.W.2d 596 (1988). We have stated that, although probate cases are reviewed de novo on appeal, distribution of wrongful death proceeds does invoke the trial court’s discretion in some measure. Id. The appellant has the burden to show the trial court was wrong and that prejudicial error was sustained. Sutton, 273 Ark. 396, 620 S.W.2d 293.

Pursuant to these statutory provisions and our case law, we conclude that as special administrator of Lorie Lantrip Holbert’s estate, Mr. Holbert had the sole authority to pursue the wrongful-death action on behalf of all the statutory beneficiaries. Contrary to the assertions in Mr. Holbert’s letter and in the probate court’s ruling, the appellants as statutory beneficiaries were not required to participate in the wrongful-death action in order to protect their interest in the proceeds. Once obtained, the proceeds of the settlement did not become assets of the estate or the personal property of Mr. Holbert. Instead, as special administrator, Mr. Holbert obtained and held the wrongful-death proceeds on behalf of all the statutory beneficiaries until the money could be apportioned by the probate court pursuant to terms of the wrongful-death statute, Ark. Code Ann. § 16-62-102.

For these reasons, we hold that the appellants, as statutory beneficiaries, had a right to claim a portion of the proceeds of the wrongful-death settlement as compensation for their mental anguish, and that the probate court abused its discretion when it ruled that the statutory beneficiaries relinquished that statutory right when they failed to participate in the wrongful-death action. Accordingly, the probate court’s order granting the full amount of the wrongful-death settlement to Mr. Holbert is reversed, and the case remanded for an apportionment hearing in which all the statutory beneficiaries may participate and present evidence of their respective rights to the proceeds of the wrongful-death settlement. In light of this holding, we need not address the various other arguments for reversal asserted by the appellants.

Reversed and remanded.

       Of course, subsection (b) of the statute provides the heirs at law may file the wrongful-death action if there is no personal representative.


author: Ray Thornton, Justice.

text:
    Lajarette BOOKER v. STATE of Arkansas
    CR 98-505
    984 S.W.2d 16
    Supreme Court of Arkansas
    Opinion delivered December 3, 1998

      John H. Bradley, for appellant.

      Winston Bryant, Att’y Gen., by: Joseph V. Svoboda, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant, Lajarrette Booker, was convicted of the murder of Dorothy Byers, a school teacher at Blytheville West Junior High School. On May 20, 1996, after Ms. Byers failed to return to work following her lunch break and did not pick her son up from his after-school care, a coworker went to Ms. Byers’s home to investigate the situation. The co-worker found Ms. Byers stabbed to death in her home.

Having been convicted of two prior rapes, appellant received a sentence of life imprisonment without the possibility of parole pursuant to the habitual-offender statute, Ark. Code Ann. § 5-4-501 (Repl. 1997). Appellant raises three points on appeal. We affirm the trial court on all points.

Sufficiency of the evidence

For his first point on appeal, appellant contends that the jury should not have been instructed on felony murder because the State did not present sufficient evidence to support that the murder occurred as a result of a burglary. Appellant was charged, in an amended information, with two alternative charges of murder. First, the State charged appellant with causing Ms. Byers’s death while in the course of burglary or during the escape therefrom; second, the State charged appellant with purposely causing Ms. Byers’s death. The trial court gave instructions on both offenses and the jury returned a general verdict of guilty. Appellant contends that it is impossible to know on which count he was convicted and, because there was not substantial evidence of a burglary the conviction should be reversed and dismissed. We note that the jury instructions provided for a general verdict, and that appellant did not seek instructions for a verdict on each of the specific charges and did not proffer instructions or make an objection to the case being submitted for a general verdict. Under these circumstances, we will examine the evidence relating to both counts to determine whether there is sufficient evidence to support the jury’s verdict on each of the charges. See United States v. Nattier, 127 F.3d 655 (8th Cir. 1997), cert. denied, 118 S.Ct. 1398, 140 L.Ed.2d 656 (1998). We note that pursuant to Ark. Code Ann. § 5-4-501, a conviction on either charge would support a life sentence.

The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. On appeal, we will review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support the verdict. Davis v. State, 314 Ark. 257, 264, 863 S.W.2d 259, 262 (1993). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Only evidence supporting the verdict will be considered. Stewart v. State, 332 Ark. 359, 363, 961 S.W.2d 750, 752 (1998).

It is important to note that we make no distinction between circumstantial and direct evidence when reviewing for sufficiency of the evidence. Davis, 314 Ark. at 264, 863 S.W.2d at 262. Flowever, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Whether the evidence excludes every hypothesis is left to the jury to determine. Id.

A. Felony murder

The State presented sufficient evidence to the jury to support a conviction of felony murder. A person commits felony murder “if... he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony or in immediate flight therefrom, he . . . causes the death of any person under circumstances manifesting extreme indifference to the value of human life.” Ark. Code Ann. § 5-10-102(a)(l). The underlying felony charged in this case is burglary. “A person commits residential burglary if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” Ark. Code Ann. § 5-39-201 (a).

The State presented several witnesses whose testimony supported the jury’s finding that a burglary occurred. The State first introduced the testimony of Shirley Bragg, who testified that on the day of the murder, while she was on her way to the grocery-store, approximately thirty minutes before Ms. Byers would have been home for lunch, she witnessed a young man going up the stairs of Ms. Byers’s home. Ms. Bragg further testified that later, on her way home from the store, she heard screams coming from Ms. Byers’s home. Ms. Bragg was able to identify appellant in a photo line-up as the person she saw on Byers’s steps the day of the murder.

The State also introduced the testimony of Police Detective David Flora, who testified that several of the security bars on Ms. Byers’s home had been loosened. Fie further testified that the screen on the window was removed. Finally, following other testimony that the back hallway of Ms. Byers’s home had been used as a storage area for months and that the back door could not be opened, Detective Flora testified that a new two-foot path had been cleared through the hallway on the day of the murder that could have allowed either an entrance or a possible exit for the burglar.

Jim Beck of the Arkansas Crime Laboratory also testified for the State. Mr. Beck, a fingerprint examiner, testified that appellant’s fingerprints were found: (1) on the doorframe of Ms. Byers’s back door, (2) on a knife that was found in the hallway near the back door, which was later determined to be one of the murder weapons, and (3) on a glass windowpane on the inside of the front door of Ms. Byers’s home. We note that, under some circumstances, fingerprints may be sufficient to sustain a conviction. Tucker v. State, 50 Ark. App. 203, 206, 901 S.W.2d 865, 867 (1995).

The crime of burglary can be complete even though the intention to commit a crime after unlawfully entering the structure is not consummated. However, the facts must show circumstances of such probative force as to reasonably warrant the inference of the purpose on the part of the accused to commit an offense punishable by imprisonment, other than the entry itself. Washington v. State, 268 Ark. 1117, 1121-1122, 599 S.W.2d 408, 410 (1980). Purpose can be established by circumstantial evidence, but that evidence must be such that the requisite purpose can be reasonably inferred, and the evidence must be consistent with the guilt of the accused and inconsistent with any other reasonable conclusion. Id. at 268 Ark. 1120, 599 S.W.2d 409.

The jury could have reasonably found that the purpose for appellant’s entry or unlawful remaining in Ms. Byers’s home was to commit rape. Gary Bias of the Blytheville Police Department testified that upon his investigation of the yard directly behind Ms. Byers’s home he discovered a tee-shirt, later identified to be appellant’s, which was stained with appellant’s semen and Ms. Byers’s blood.

Based on the testimony presented, a jury could have concluded beyond suspicion and conjecture that the elements of felony murder were established beyond a reasonable doubt by the State. Therefore, the trial court did not err in submitting the issue of felony murder to the jury.

B. First-degree murder

The State presented sufficient evidence to the jury to support a conviction of first-degree murder.

“A person commits murder in the first degree if, with a purpose of causing the death of another person, he causes the death of another person.” Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1993). “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in the conduct of that nature or to cause such a result.” Ark. Code Ann. § 5-2-202(1) (Repl. 1993). Intent is seldom capable of proof by direct evidence. Usually, it must be inferred from the circumstances of the killing. Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). The intent necessary for first degree murder may be inferred from the type of weapon used, from the manner of its use, and the nature, extent, and location of the wounds. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991). It is axiomatic that one is presumed to intend the natural and probable consequences of his actions. Furr v. State, 304 Ark. 41, 822 S.W.2d 308 (1991).

Akbar v. State, 315 Ark. 627, 629, 869 S.W.2d 706, 707 (1994).

In the case at hand, the jury could have inferred appellant’s intent to purposely kill Ms. Byers. The State introduced the evidence of Dr. Steven Erickson who testified that Ms. Byers had died as the result of ten stab wounds. He explained that Ms. Byers had been stabbed in the head, chest and neck. Ms. Byers had been stabbed by two different weapons: a kitchen knife and a pair of scissors. Dr. Erickson also testified that Ms. Byers had “defensive wounds” on her hands. Finally, Dr. Erickson was able to inform the jury that the weapons found at the crime scene with appellant’s finger prints and Ms. Byers’s blood on them could have been used to cause the deadly wounds. Based upon this proof, there was sufficient evidence for the jury to conclude beyond a reasonable doubt that appellant stabbed Ms. Byers with the purpose of killing her.

Constitutionality of Ark. Code Ann. § 5-4-50i(c)(d)

Appellant’s second point on appeal is a challenge to the statutory make-up of Ark. Code Ann. § 5-4-501 (c)(1) and 5-4-501(d)(1). He contends that these provisions are conflicting, misleading, and vague, and therefore a violation of the Due Process Clauses of the United States and Arkansas Constitutions. Additionally, he argues that the State did not notify him as to which portion of the statute they intended to use in sentencing and therefore his due process rights were violated. We have combined these two arguments and will address them as such. The language of Ark. Code Ann. § 5-4-501 (c)(1) is as follows:

(c)(1) A defendant who is convicted of a serious felony involving violence enumerated in subdivision (c)(2) of this section and who has previously been convicted of one (1) or more of the serious felonies involving violence enumerated in subdivision (c) (2) of this section shall be sentenced to imprisonment, . . . for a term of not less than forty (40) years nor more than eighty (80) years, or life.
(2) For the purposes of this subsection, a serious felony involving violence shall mean:
(A) Any of the following enumerated as follows:
(i) Murder in the first degree;
(ii) Murder in the second degree;
(iii) Kidnapping, involving activities making it a Class Y felony;
(iv) Aggravated robbery;
(v) Rape;
(vi) Terroristic acts, involving activities making it a Class Y felony; or
(vii) Causing a catastrophe. . . .

(Statutory references omitted.) The language of Ark. Code Ann. § 5-4-501 (d)(1) states:

(d)(1) A defendant who is convicted of a felony involving violence enumerated in subdivision (d) (2) of this section and who has previously been convicted of two (2) or more of the felonies involving violence enumerated in (d)(2) of this section shall be sentenced to . . .
(A) For a conviction of a Class Y felony, a term of not less than life in prison. . . .
(2) For the purposes of this subsection, a felony involving violence shall mean:
(A) Any of the following felonies enumerated as follows:
(i) Murder in the first degree;
(ii) Murder in the second degree;
(iii) Kidnapping;
(iv) Aggravated robbery;
(v) Rape;
(vi) Battery in the first degree;
(vii) Terroristic act;
(viii) Sexual abuse in the first degree;
(ix) Violation of a minor in the first degree;
(x) Domestic battering in the first degree;
(xi) Unlawful discharge of a firearm from a vehicle; or
(xii) Criminal use of prohibited weapons, involving activities making it a Class B felony.
(xiii) A felony attempt, solicitation, or conspiracy to commit:
(d) Capital murder;
(6) Murder in the first degree;
(c) Murder in the second degree; id) Kidnapping;
(e) Aggravated robbery; if) Rape;
(g) Battery in the first degree; or
(h) Domestic battering in the first degree.

(Statutory references omitted.) Following these sections, which define the sentencing of a defendant as a habitual offender, we turn to subsection (g), which provides as follows:

(g) Any defendant deemed eligible to be sentenced under provisions of both subsections (c) and (d) of this section shall be sentenced only under subsection (d) of this section.

Ark. Code Ann. § 5-4-501 (g). (Emphasis added.)

In addressing the issue whether these statutes are unconstitutionally vague, we follow our rules of statutory interpretation. The first and most important rule of statutory interpretation is that a statute is presumed constitutional and all doubts are resolved in favor of constitutionality. The party challenging the statute has the burden. McDougal v. State, 324 Ark. 354, 359, 922 S.W.2d 323, 326 (1996). Flowever, it must be remembered that all other interpretative guides must give effect to the intent of the legislature. Thomas v. State, 315 Ark. 79, 80, 864 S.W.2d 835, 836 (1993).

The standard by which we determine when a statute is void for vagueness is whether it lacks ascertainable standards of guilt such that persons of average intelligence must necessarily guess at its meaning and differ as to its application. Dougan v. State, 322 Ark. 384, 388, 912 S.W.2d 400, 402 (1995). We are mindful of the fact that flexibility, rather than meticulous specificity or great exactitude, in a statute is permissible as long as its reach is clearly delineated in words of common understanding. Dougan, 322 Ark. at 388-389, 912 S.W.2d at 402. Finally, it is important to note that it is not necessary that all kinds of conduct falling within reach of the statute be particularized and the statute will not be struck down as vague only because there could be marginal cases where doubts might arise. Dougan, 322 Ark. at 389, 912 S.W.2d at 403.

The additional language and application of subsection (g) of the statute remedies any overlap in subsections (c) and (d) of Ark. Code Ann. § 5-4-501. Subsection (g) clearly orders that if a defendant is a habitual offender who is eligible to be sentenced under both subsection (c) and subsection (d) he will be sentenced according to the provision of subsection (d). This provision also gives the requisite notice to individuals that might be eligible for sentencing under either provision that they will be sentenced according to the guidelines set forth in subsection (d). Therefore, the statute is not vague and does not violate the Due Process Clauses of the United States and Arkansas Constitutions.

Admission of Photos

For his final point on appeal, appellant contends that the trial court erred in admitting two photos of the victim. These photos were of the victim’s body, at the crime scene, and depicted signs of rigor mortis. This court has stated that the admission and relevancy of photographs is a matter within the sound discretion of the trial court, and the mere fact that photos are inflammatory will not render them inadmissible. Goff v. State, 329 Ark. 513, 521, 953 S.W.2d 38, 43 (1997). Even the most gruesome photos may be admissible if they tend to shed some light on any issue, corroborate testimony, are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand testimony. Id. Other acceptable purposes are to show the condition of the victims’ bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Goff, 329 Ark. at 521-522, 953 S.W.2d at 43. Photos may also be admitted to show the nature, extent, and location of the trauma suffered by the victim. Hill v. State, 325 Ark. 419, 428, 931 S.W.2d 64, 68(1996).

The State argued at a pretrial hearing that the pictures were needed to prove that Mrs. Byers was murdered, to establish the circumstances surrounding the murder, to depict the nature of the murder, the viciousness of the attack, the extent of the struggle, and to show where the body was located. The State also noted that it was making an effort to ensure that the photos introduced fairly depicted the scene without unduly prejudicing the jury, and therefore was not introducing twenty-nine other more “gruesome and graphic” photos. Appellant argues that the pictures were not relevant, and served only to inflame the jury. The trial court found that the photos were “not unduly inflammatory.” Because the photos could have been helpful to the jury by showing essential elements of the crime, the viciousness of the attack, the nature of the trauma suffered, and enabling the jury to understand testimony, the trial court did not abuse its discretion by allowing the two photos into evidence.

4-3 (h) Review

In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.

Affirmed.