text:
    Gary STAHL v. STATE of Arkansas
    CR 97-287
    940 S.W.2d 880
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      Randel Miller, P.A., by: Randel Miller, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly Terry, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Gary Stahl, by his attorney, requests this court to issue a writ of prohibition to set aside the trial court’s order striking Stahl’s notice of appeal.

On January 24, 1997, Stahl was found guilty of four counts of drug-related charges and sentenced to 150 years’ imprisonment. Six days later, Stahl escaped from the Lawrence County Jail and as of the date this petition was filed remained at large. Stating that he knew that Stahl wished to appeal the judgments of conviction, his counsel filed a notice of appeal on February 20, 1997. On February 21, 1997, the prosecuting attorney filed a motion to strike the notice of appeal and questioned whether Stahl “truly desired” to appeal his convictions. The trial court granted the motion and ordered the notice of appeal struck because Stahl had not signed the notice of appeal.

We treat the petition for writ of prohibition as one for writ of certiorari, and we grant it. See Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994). It is within the province of this court to dismiss appeals and not the trial court. We recently underscored this point in a case where the trial court had struck a notice of appeal, presumably because it was untimely. See Barnes v. State, 322 Ark. 814, 912 S.W.2d 405 (1995) (per curiam). We said in Barnes:

While we agree that the notice was untimely and, as a result, deny the petition for writ of mandamus, we take this opportunity to note that pursuant to Rule 3(b) of the Rules of Appellate Procedure a trial court cannot dismiss a notice of appeal, whether timely or untimely, without a proper stipulation of the parties or a motion to dismiss filed by the appellant. It is not within the authority of a trial court to pass on the validity of a notice of appeal and dismiss it sua sponte. At the least, a partial record suitable for tender to the appellate court should be prepared whereby the appellant may tender the record and allow the appellate court to determine whether the appeal should be lodged.

The authority for striking a notice of appeal is now stated in Ark. R. App. P. — Crim. 2(f). Under Criminal Appellate Rule 2(f), the trial court cannot dismiss an appeal without stipulation by the parties or a motion by the appellant. In all other cases, it must be the appellate court that decides whether a notice of appeal is proper. The trial judge exceeded his authority in striking the notice of appeal, and his order is vacated. Upon proper motion to this court, we will consider the issue.


source: Caselaw Access Project

author: W.H.“Dub” Arnold,

license: Public Domain

text:
    Tina ADAMS, Chris Debaldo, Scott Willis and Joseph Sappington v. HLC HOTELS, INC., d/b/a Masters Economy Inn and Steven L. Womack, Individually
    96-1294
    941 S.W.2d 424
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997

      Eichenbaum, Scott, Miller, Liles & Heister, P.A., by: James H. Penick, III, for appellants.

      Barber, McCaskill, Jones & Hale, P.A., by: G. Spence Frike and Derek J. Edwards, for appellees.
   W.H.“Dub” Arnold,

Chief Justice. This case arises from an altercation that occurred on May 8, 1994, at a Little Rock hotel. The appellants, Tina Adams, Chris Debaldo, Scott Willis, and Joseph Sappington brought an intentional-tort action for assault and battery against appellee Steven L. Womack, a security guard. They also sued Womack’s employer, separate appellee HLC Hotels, Inc., d/b/a Masters Economy Inn, for negligent hiring and supervision. Appellee Womack counterclaimed for compensatory and punitive damages. At the close of the appellants’ case-in-chief, the trial court directed a verdict in the hotel’s favor on the negligent hiring and supervision claims. In a verdict on interrogatories on the remaining claims, a jury found no intentional misconduct on the part of Womack, but found intentional conduct on the part of appellants and awarded Womack $2959.25 in compensatory damages and $1000.00 in punitive damages.

Appellants do not appeal the granting of the directed verdict in the hotel’s favor on the negligent hiring and supervision claims. Instead, they maintain that the jury was erroneously precluded from considering the hotel’s independent negligence for failing to implement the appropriate policies and procedures which, according to them, could have prevented the incident from taking place. Specifically, they assert that the trial court should have given their proffered instruction on negligence, and that, pursuant to Ark. R. Civ. P. 15(b), the trial court should have permitted them to amend their pleadings to conform to the evidence presented at trial on this ground of negligence.

The fatal flaw with appellants’ allegations of error is that the jury, through its answers in special interrogatories, determined that none of the appellants sustained damages as a result of the occurrence at the hotel. We have indicated that examination of jury interrogatories is an appropriate way to determine exactly what the jury believed, and that a jury verdict may demonstrate that an alleged error by the trial court was harmless. Morris v. Southwestern Bell Tel. Co., 299 Ark. 196, 771 S.W.2d 761 (1989); Billings v. Gipson, 297 Ark. 510, 763 S.W.2d 85 (1989). It is axiomatic that, to make a prima facie case of negligence, one of the elements a plaintiff must prove is that he or she sustained damages. Anslemo v. Tuck, 325 Ark. 211, 924 S.W.2d 798 (1996). Because the jury concluded that none of the appellants sustained damages as a result of the altercation at the hotel, the errors alleged by appellants are harmless.

Appellants further submit that the trial court erred in entering its order denying their motion for new trial prior to receipt of their reply to the hotel’s response to the motion. Rule 59(d) of the Arkansas Rules of Civil Procedure governs the time for filing affidavits in support of or in opposition to a new trial motion. It states:

When a motion for a new trial is based upon affidavits, they shall be filed with the motion. The opposing party shall have 10 days after service within which to file opposing affidavits which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.

(Emphasis added.) Pursuant to the above language, it is within the trial court’s discretion whether to allow a reply to a response to a motion for new trial. Because the plain language of the rule does not require the trial court to allow reply affidavits, the appellants’ argument is unpersuasive. For the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.


author: David Newbern, Justice.

text:
    Remo POLSELLI, et al. v. John AULGUR
    96-426
    942 S.W.2d 832
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997

      Richard C. Downing, P.A., by: Richard C. Downing, for appellant.

      Trammell Law Firm, by: Thomas F. Meeks, for appellee.
   David Newbern, Justice.

As the result of failure to comply with a discovery order, a judgment was entered in favor of appellee John Aulgur against Little Rock Hotel Associates, Inc. (LRHA), and Remo Polselli. Mr. Aulgur’s claim was for breach of a contract for the sale of his stock in TCB Lodging Corporation. The judgment was a default judgment which resulted from the answer and counterclaim of LRHA and Mr. Polselli being struck as a sanction permitted by Ark. R. Civ. P. 37 for failure to answer interrogatories. A hearing was held to determine Mr. Aulgur’s damages. The issue in this appeal is whether the Trial Court erred by refusing to allow Mr. Polselli’s counsel to ask a question on cross-examination of Mr. Aulgur on the ground that the question went to the issue of liability rather than damages. We hold there was no error.

There is no doubt that Mr. Polselli was made a defendant in the complaint filed by Mr. Aulgur or that he was a party to the contract at issue. He was named as a party in the opening paragraph of the contract, and he signed it once as President of LRHA and then again on his own behalf. Nor does counsel for Mr. Polselli contend that there was any excuse for his client’s failure to respond to interrogatories after notices and inquiries from opposing counsel and, ultimately, after an order from the Trial Court to show cause why he should not be held in contempt for failure to respond.

At a hearing to determine damages, Mr. Aulgur testified. He presented a closing statement which demonstrated that he, personally, was to receive $78,627.00 from the $90,000 purchase price recited in the contract. He testified that he received three checks from Mr. Polselli and his agent at the closing. The checks, from which Mr. Aulgur’s $78,627.00 was to be taken, were returned for “insufficient funds.” He attempted a second time to negotiate the checks, and they were again returned for the same reason.

Upon cross-examination of Mr. Aulgur, counsel for Mr. Polselli asked Mr. Aulgur to read from the contract the portions stating that LRHA was the “buyer” of the stock. He then asked, “Now, would you agree with me that per the contract that you just read, the buyer refers to Little Rock Hotel Associates, Inc.?” Counsel for Mr. Aulgur objected on the ground that the question went to the matter of liability of Mr. Polselli which was no longer at issue. The Trial Court pointed out that Mr. Polselli had been named by the complaint as a party to the contract who was liable for the payment. Counsel for Mr. Polselli responded that the answer had denied that claim, but he acknowledged that the answer had been stricken as a discovery-failure sanction. The Trial Court sustained the objection on the ground that the question Mr. Polselli’s counsel sought to ask went to the issue of liability rather than damages.

Judgment was entered against LHRA and Mr. Polselli jointly and severally and in favor of Mr. Aulgur in the amount of $78,627. Mr. Polselli moved for a new trial, citing Ark. R. Civ. P. 55(b), claiming a meritorious defense and arguing that the rule required a hearing regarding the “truthfulness” of Mr. Aulgur’s claim. The motion was denied.

1. Evidence of damages

Mr. Polselli contends that the Trial Court abused his discretion by awarding damages in the amount prayed for in the complaint. He argues, in essence, that the evidence did not support the amount of the damages awarded. He submits that his cross-examination would have shown that Mr. Polselli was not liable. Nothing is presented to contest the testimony of Mr. Aulgur concerning the amount he would have received had the contract been performed.

A default may establish liability but not necessarily the extent of damages. Byrd v. Dark, 322 Ark. 640, 911 S.W.2d 572 (1995). When the extent of damages remains in question, a hearing is required to determine the amount of damages, and the plaintiff is required to introduce evidence of the damages. B & F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). Mr. Aulgur’s testimony was quite specific and supported by the closing statement and the returned checks. The evidence was sufficient to support the damages awarded.

2. Cross-examination of witness

Mr. Polselli contends that the Trial Court should have allowed Mr. Aulgur to testify as to the meaning of the contract. He submits that such evidence does not contest the question of liability, but would show that he did not owe Mr. Aulgur any money for the transfer of the stock.

When disputing the amount of damages, the defendant has the right to cross-examine the plaintiffs witnesses, to introduce evidence in mitigation of damages, and to question on appeal the sufficiency of the evidence to support the amount of damages awarded. Clark v. Michael Motor Co., 322 Ark. 570, 910 S.W.2d 697 (1995). The defaulting defendant may not, however, introduce evidence to defeat the plaintiffs cause of action. Sphere Drake Ins. Co. v. Bank of Wilson, 312 Ark. 540, 851 S.W.2d 430 (1993); B & F Eng’g, Inc. v. Cotroneo, supra.

Kohlenberger v. Tyson’s Foods, Inc., 256 Ark. 584, 510 S.W.2d 555 (1974), involved the sale of an ice maker. The buyer sued the seEer, aEeging breach of express and implied warranties and seeking consequential as well as direct damages. The seEer failed to answer in time, and a default was entered. The contract which formed the basis of the complaint contained provisions purporting to limit warranties. We remanded the case so that, in part, the Trial Court could look to the contract to determine the amount of damages to which the buyer was entitled. We wrote:

It has been held that evidence to show that no right of action existed is inadmissible. But it has also been held that, in an action for its breach, the contract between the parties is admissible in evidence to mitigate damages by showing the extent of the defendant’s covenant to the plaintiff, and the property not subject to the covenant. It has also been held that attendant circumstances giving character to the transaction may be shown insofar as they are relevant to the amount of recovery to which the plaintiff is entitled. [Citations omitted; emphasis in original.]

In the case now before us, unlike the Kohlenberger case, there are no niceties of the extent of various sorts of damages or allegations that there are provisions in the contract which would limit the extent of Mr. Aulgur’s recovery under it. Had Mr. Polselli chosen to cooperate in the litigation, perhaps he could have raised an issue of ambiguity in the contract as to whether he was liable. He chose not to do that, and the default, imposed as a sanction upon him, resolved the question of his liability. There is nothing before us or alleged to have been a part of the contract which would portend a liability on his part which is more than nothing but less than the amount awarded. In view of the Trial Court’s determination that Mr. Polselli was liable under the contract, the question asked by Mr. Polselli’s counsel of Mr. Aulgur at the damages hearing was irrelevant to any issue remaining in the case, and it was not error to sustain the objection.

3. Motion for new trial

In his new-trial motion, Mr. Polselli contended he was entitled to relief because the Trial Court failed to “review” the “truthfulness” of Mr. Aulgur’s claims. On appeal, he pursues that argument by claiming that Ark. R. Civ. P. 55(b) requires the Trial Court to determine the amount of damages and to establish the truth of any averment. He also argues that the Trial Court abused its discretion in striking his answer and counterclaim because the result of the sanction is unjust.

Rule 55(b) plainly gives the Trial Court discretion with respect to whether to conduct a hearing, “[i]f, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter. ...” We have been given no authority to the effect that a trial court must hold such a hearing on issues of liability when that has already been established by the entry of a default.

Affirmed.


text:
    Larry R. ROGERS and Elizabeth H. Snipan v. Don MALLORY
    96-1359
    941 S.W.2d 421
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997

      David H. Williams, for appellants.

      Mark S. Cambiano, for appellee.
   David Newbern, Justice.

Arkansas Code Ann. § 16-56-112(a) (1987) provides:

No action in contract, whether oral or written, sealed or unsealed, to recover damages caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repair of any improvement to real property or for injury to real or personal property caused by such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction or repair of the improvement more than five (5) years after substantial completion of the improvement.

The question to be answered in this appeal is whether the five-year limit imposed by the statute applies to claims for breach of the implied warranty of habitability of a dwelling. The Trial Court held the statute applicable, and we affirm.

Larry R. Rogers and Elizabeth FI. Snipan, husband and wife, purchased the home in question from Ron and Kay Dobie in May 1992. Although the buyers had the home inspected for defects, and had some defects repaired by the Dobies prior to closing, they were unaware that the fill on which the house was built had been composed of wet pond dirt that was slowly drying and causing the underlying concrete slab to collapse.

By the time Mr. Rogers and Ms. Snipan filed their complaint in August 1994, the home was a disaster area. The flooring had crushed drain pipes below. Doors and cabinets were ajar. Sewage was oozing through the exterior brick walls. Mr. Rogers and Ms. Snipan were washing dishes and clothes over buckets and had only one bathing area that drained suitably. Estimates of repairs ranged from $132,000, which would not buy a guarantee of completely solving the problem, to $193,000, which would purchase repairs with a guarantee that no further settlement would occur.

The complaint named a number of defendants. All were dismissed except the Dobies, Bob Kordsmeier (individually and as agent for Conway Home Inspection Service, Inc.), and appellee Don Mallory, a general building contractor who allegedly built the home through the process of subcontracting with members of building trades.

In his amended answer, Mr. Mallory asserted as an affirmative defense, among others, that the action was barred by § 16-56-112(a). He moved to dismiss. The Trial Court said she was treating the motion as one for summary judgment, but she held a hearing at which some testimony was taken and ruled in favor of Mr. Mallory. She then certified the case for appeal pursuant to Ark. R. Civ. P. 54(b), holding the claims against the Dobies and Mr. Kordsmeier in abeyance until the appeal of her decision with respect to Mr. Mallory has been decided.

The only argument presented in the brief of Mr. Rogers and Ms. Snipan is that § 16-56-112(a) does not apply to a cause of action alleging that a general contractor, in constructing a residence, breached the implied warranty of habitability. They argue that when we recognized the implied warranty in cases such as Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970), and Blagg v. Fred Hunt Co., 272 Ark. 185, 612 S.W.2d 321 (1981), we did not intend that claims asserting a breach of the warranty be governed by § 16-56-112(a). Mr. Rogers and Ms. Snipan point out § 16-56-112(a) or a predecessor was in effect at the time we recognized the implied warranty and that we did not mention the statute or suggest that the right to sue for a breach of the warranty could be terminated after five years from the date of the home’s substantial completion.

Mr. Rogers and Ms. Snipan also cite language from our cases stating that the implied warranty extends to subsequent purchasers and exists for a “reasonable length of time.” See Sanders v. Walker, 298 Ark. 374, 767 S.W.2d 526 (1989); Blagg v. Fred Hunt Co., supra. They contend that language affords them the right to sue for a “reasonable length of time” irrespective of the five-year limitation prescribed by § 16-56-112(a). They reason that a rule that essentially terminates a purchaser’s right to sue for a breach of the warranty before the purchaser has even seen or purchased the home, let alone discovered any defects or suffered any damages, is fundamentally at odds with the rationale and policy considerations that led this Court to recognize a cause of action for breach of the implied warranty of habitability. Mr. Rogers and Ms. Snipan seek a ruling that a subsequent purchaser of a home has a reasonable amount of time in which to bring a claim for breach of the implied warranty of habitability and that the purchaser is not required to comply with § 16-56-112(a) and bring such a claim within five years of the substantial completion of the home.

If we could decide this case simply by considering “the equities,” assuming proof of the allegations made, we would have to rule in favor of Mr. Rogers and Ms. Snipan. Construction on their home was completed in December 1986. They were not shown the home by a real estate agency until February 1992, and they did not close the deal and take possession until May 1992. They began to notice the drainage problems in November 1992, and they finally discovered the causes of the defects in June 1993.

Nonetheless, the statute was correctly followed by the Trial Court. While we have made an exception (as does § 16-56-112(d) specifically), on the basis of fraudulent concealment, to statutes limiting the time in which an action must be brought, no such fraud argument is made here. According to § 16-56-112(a), an action “in contract” (and there is no argument made here that the breach-of-warranty claim is not such an action) must be brought no more than five years after substantial completion of the home. There is no exception in the statute, as the appellants suggest there is, for residential property, and the statute does not give a purchaser a “reasonable length of time” in which to bring suit.

Although we may not have mentioned § 16-56-112(a), when discussing the “reasonable length of time” requirement in prior implied-warranty cases, it has not been at issue. We have not held that a purchaser may bring suit for a breach at any “reasonable” time. The obiter dicta cited say that the warranty exists for a reasonable length of time, not that a purchaser has any “reasonable” amount of time in which to sue for a breach of the warranty.

We have recognized that the effect of § 16-56-112(a) and statutes similar to it “is to cut off entirely an injured person’s right of action before it accrues,” even “if it does not arise until after the statutory period has elapsed.” Okla Homer Smith Mfg. Co. v. Larson & Wear, Inc., 278 Ark. 467, 470, 646 S.W.2d 696, 698 (1983), quoting Annotation, 93 A.L.R.3d 1242, 1246 (1979). Thus, § 16-56-112(a) is more accurately described as a “statute of repose” rather than a “statute of limitations.” See J.W. Looney, When Third Means Fourth, Contract Includes Tort, and a Five-Year Statute of Limitation Actually Leaves Only Three Years or Less to File Suit: The Strange Saga of the Arkansas “Statute of Repose’’ in Construction Cases, 1993 Ark. L. Notes 87, 90 n.15.

We have observed that the General Assembly’s purpose in enacting the statute “was to enact a comprehensive statute of limitations protecting persons engaged in the construction industry from being subject to litigation arising from work performed many years prior to the initiation of the lawsuit.” Okla Homer Smith Mfg. Co., 278 Ark. at 470, 646 S.W.2d at 698. See also East Poinsett County School Dist. No. 14 v. Union Standard Ins. Co., 304 Ark. 32, 33-34, 800 S.W.2d 415, 417 (1990).

The statute is clear. It does not conflict with the holding of any case in which we have dealt with the implied warranty of habitability, and we must follow it.

Affirmed.


author: Donald L. Corbin, Justice.

text:
    Steven Wade MILLER v. STATE of Arkansas
    CR 96-892
    942 S.W.2d 825
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997
    [Petition for rehearing denied May 19, 1997.]

      Q. Byrum Hurst, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Steven Wade Miller appeals the judgment of conviction of the Columbia County Circuit Court convicting him of capital murder and sentencing him to life imprisonment without the possibility of parole. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2) (as amended by per curiam order July 15, 1996). Appellant raises five points for reversal. We find no error and affirm.

Appellant and Heath Kennedy were arrested and charged with capital murder for the March 5, 1994 shooting death of Leona Cameron, a clerk of the Subway Sandwich Shop in El Dorado, Arkansas. Heath Kennedy was tried first and convicted of capital murder. This court affirmed the conviction in Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996). Details of the crime are outlined in that opinion, and we will not duplicate recitation of those facts except as they may be pertinent to the particular issues raised in this appeal.

Motion for Continuance

Appellant contends that the trial court erred in denying his motion for continuance, which was made on the basis of the alleged necessity to secure expert witnesses to review previous psychiatric testing conducted on Appellant by doctors at the Arkansas State Hospital.

The grant or denial of a continuance is within the sound discretion of the trial court, and the decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996). An accused is presumed competent to stand trial, and the burden of proving incompetence is on the accused. Id. A.R.Cr.P. Rule 27.3 provides:

The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.

The following factors are to be considered by the trial court in deciding a continuance motion: (1) The diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Turner, 326 Ark. 115, 931 S.W.2d 86.

The following facts are relevant to this issue. Appellant was charged with capital murder on March 9, 1994, and subsequently entered a plea of not guilty by reason of mental disease or defect. On August 5, 1994, the defense filed a motion requesting that Appellant be transferred to the University of Arkansas for Medical Sciences Hospital in Little Rock for examination by Dr. Daryl Matthews, who had been retained by Appellant, to determine the existence of any physical, emotional, or psychological defects. The trial court granted the motion on September 22, 1994.

On December 2, 1994, the defense filed a motion for continuance on the ground that the examination had not taken place as of that date and, thus, it had not been determined whether Appellant was fit to proceed with trial. That motion was granted by-order filed the same date. On December 15, 1994, the trial court entered an order for an evaluation of Appellant to be conducted at the Arkansas State Hospital.

Approximately seven months later, on July 13, 1995, a letter from the prosecuting attorney was filed with the circuit clerk’s office notifying the trial court that Appellant’s evaluation had been received from the state hospital. Included with the prosecutor’s letter, was a copy of a letter to the trial court, succinctly reflecting the scientific conclusions, and the accompanying forensic evaluation completed by Dr. O. Wendall Hall, III and Dr. John R. Anderson. Contained at the end of the letter was a list of those persons, including Appellant’s counsel, to whom a copy of the letter had been sent. The evaluation indicated that Appellant was capable of cooperating in the preparation of his defense and that, at the time of the commission of the crime, Appellant did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. The evaluation further indicated that two Minnesota Multiphasic Personality Inventory — -II tests had been given to Appellant, but that the first test was determined to be invalid and was thus not scored. The reason provided in the evaluation for the invalidity of the first MMPI-II test was that, “Mr. Miller either did not read the items or read and answered the items in an attempt to over report psychiatric problems.”

On August 11, 1995, the defense filed a motion for additional testing, on the recommendation of Appellant’s retained psychiatrist, Dr. Sarah L. Strebeck, to determine whether Appellant suffered from organic brain disorder. Two weeks later, the defense filed a motion for appointment of an expert to conduct the examination for possible organic brain damage resulting from his possible involuntary exposure to alcohol while his mother was pregnant with him. The motion for additional testing was granted on October 2, 1995, and was to be provided at the state hospital as determined by Dr. Strebeck.

On November 1, 1995, the defense filed a second motion for continuance on the ground that Appellant was currently undergoing additional testing at the state hospital and that the defense did not believe there would be enough time to obtain the results of the testing in order to prepare for the trial, which was set for November 13, 1995. In an order filed November 7, 1995, the trial court granted the continuance and reset the trial for January 16, 1996.

A second forensic evaluation from the state hospital, filed on December 8, 1995, reflected that Appellant had been examined by Dr. Joe Alford for neurological assessment. Dr. Alford’s report indicated:

Taken together, available data suggest relatively mild to moderate cortical dysfunction that is primarily evidenced through deficits on memory-based tasks and tasks involving ongoing attention and concentration. At the same time, he is of average intelligence, and he manifests some real strengths on complex cognitive tasks. He does display the kind of weakness on tasks requiring executive functions that is sometimes associated with poor impulse control. I find no evidence to suggest that Mr. Miller suffers from residuals from Fetal Alcohol Syndrome, since he does not display the intellectual deficits that are almost invariably associated with that syndrome.

The report further indicated that the additional tests conducted on Appellant were interpreted as being normal.

Over one month later, on January 11, 1996, the defense filed several motions, one of which was for the appointment of a forensic psychologist to interpret the two MMPI-II tests given to Appellant in June 1995. The defense claimed that it had not been provided with the actual tests until January 9, 1996, when defense counsel demanded the tests from the prosecutor. The defense also filed a third motion for continuance on the ground that Appellant was “shocked” by the findings of Dr. Alford’s assessment and that, on the advice of its two retained expert witnesses, it needed a continuance in order to procure a neuropsychologist from out of state, because of the alleged difficulty in obtaining one of competence in Arkansas.

A hearing was conducted on the third motion for continuance on January 12, 1996. After hearing testimony from Dr. Alford and extensive argument from both sides, the trial court denied Appellant’s motion on the bases of the evidence presented by Dr. Alford and the forensic evaluations completed at the state hospital, neither of which indicated any reason for additional testing. The trial judge stated that he had read the information submitted by the defense’s two consultants, but that he saw no need for further testing because the defense experts merely referred to hypothetical mental defects, rather than some probable or concrete mental ailments. The trial court then instructed Dr. Alford to interpret the two previously administered MMPI-II tests, which the doctor stated could be done in a matter of hours, and provide that information to the defense. The court then denied the motions for the appointments of additional experts for the defense.

Additionally, it is worth noting that during that hearing, defense counsel argued that the State had not provided them with the results of the two MMPI-II tests until they had demanded them from the prosecutor on January 9, 1996. When asked by the trial court whether it was their position that they were unaware of the results of the two tests until that date, defense counsel indicated that they were. The trial court then confronted them with a letter to defense counsel from their own expert, Dr. Jonathan J. Lipman, dated December 26, 1995, which referenced “both MMPI evaluations.” Defense counsel then conceded that the two tests were referred to in the original report from the state hospital, but that it was not until they had consulted Dr. Lipman, that they became aware of the significance of the tests, particularly the first test that was not scored.

On January 17, 1996, the first day of trial testimony, the defense renewed its motion for continuance for the above reasons, and also for the reason that it had just received on the previous evening a packet of handwritten notes of the examiners concerning Appellant’s evaluations at the state hospital. The motion was again denied by the trial court, stating:

[T]he Defense has the burden of proof of mental disease or defect. And it seems to me that everything has just been put on hold until we got ready to go to trial this time. And, now, all of a sudden there’s this mad rush to get all this information and postpone the trial again so that more doctors can be brought in.
As you will recall, Mr. Hurst, we had a hearing scheduled for January the 3rd, I believe it was on your motion for, on the fitness of this Defendant to proceed to trial. At your request, that hearing was canceled. It seems to me that at that time you had Dr. Lippman’s [sic] wish list that he had sent to you on December the 26th. And it would have been an ideal time, I think, to have addressed all those issues right then.

We are convinced that the trial court did not abuse its discretion in denying the motion for continuance. Both evaluations conducted on Appellant indicated that he had not suffered from a mental disease or defect at the time of the commission of the crime, nor that he was incapable of assisting in his own defense. The first evaluation also indicated that the first MMPI-II test was invalid and that such invalidity may have been from Appellant’s attempts to purposely appear psychotic. Defense counsel admitted that they were aware of the results of the MMPI-II tests because they were included in the original forensic evaluation, which was filed with the court in July 1995. The fact that they claimed to have been unaware of the tests’ significance until they had retained their own expert witnesses is of little consequence, because, as the trial court observed, they were aware of the need to review those tests upon receipt of Dr. Lipman’s letter over two weeks before they went to the prosecutor’s office to obtain copies of the tests. Thus, not only was it apparent that the defense was merely conducting a fishing expedition into possible, hypothetical mental disorders, it was further apparent that they had not been diligent in seeking the information they requested.

It was Appellant’s burden to prove the existence of a mental disease or defect, which he could have easily attempted to do on his own. Instead, the defense chose to employ the strategy of waiting to see what the State’s doctors would find and only then retaining their own experts to double-check the results. Given that Appellant was concerned about the possible bias of the state-funded experts, we cannot understand why he did not pursue an independent MMPI-II test from one of his retained experts long before the time set for trial.

In short, it is clear from the record that Appellant was not diligent in attempting to secure the necessary information on which to build a defense of mental disease or defect. It is equally clear that a continuance for the purpose of obtaining additional testing was unwarranted in light of the fact that every evaluation conducted on Appellant had shown that he did not lack the capacity to appreciate the criminality of his actions nor to conform his conduct to the requirements of the law. As such, the probable effect of the testimony at trial would have been of little benefit to his defense. We therefore find no abuse of discretion and affirm the trial court’s denial of the continuance.

Sufficient Psychiatric Examination

Appellant, who was sixteen years old when he allegedly committed the murder, contends that his constitutional rights to equal protection under the law and a fair trial were violated because he had not been given the same mental evaluation as adult defendants charged with the same crime. His argument appears to center around the testimony of Dr. Alford, that, according to his training and experience with the DSM-IV, the standard diagnostic manual written by the American Psychiatric Association, he could not consider diagnosing Appellant with borderline personality disorder until he was eighteen years of age. During the trial, when asked by defense counsel whether “the truth of the matter is that he’s not getting that diagnosis simply because he wasn’t 18 years old,” Dr. Alford responded that, although Appellant had some traits that may fall within a borderline personality disorder, “even at age 181 would not diagnose [Appellant] as having that” disorder. Additionally, in the pretrial hearing conducted on January 12, 1996, Dr. Alford stated that he found Appellant “very much lacking the typical interpersonal symptoms that are seen in an interview with somebody with a diagnosis of borderline personality disorder.”

It is apparent from Dr. Alford’s testimony that Appellant was not diagnosed with the personality disorder because he did not exhibit sufficient signs or recognized traits of such disorder. Not surprisingly, Appellant cites no convincing authority or argument for his novel proposition that he was not diagnosed with the disorder because of his youth. Because it is not apparent without further research that the argument is well taken, we will not consider it. Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997).

Motion to Transfer to Juvenile Court

Appellant contends that it was error for the trial court to deny his motion to transfer the charge to juvenile court without first having conducted a hearing on the motion as provided in Ark. Code Ann. § 9-27-318(d) (Supp. 1995). As stated previously, Appellant was sixteen years old when he allegedly committed the murder. We note at the outset Appellee’s concession that this court’s holding in Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995), that an appeal from an order denying transfer of a case to juvenile court must be considered by way of interlocutory appeal or is waived, is not applicable to this appeal as the prosecution against Appellant had been commenced before that decision was issued.

Appellee argues that it is impossible for this court to reach the merits of this issue because Appellant has failed to include in the record on appeal the transcript of the pretrial hearing in which his motion was considered. In his reply brief, Appellant asserts that no hearing was held on the motion and, thus, no transcript exists. In the argument portion of his brief, however, Appellant states:

The lower court scheduled hearings on all pending motions. No testimony was presented regarding the motion to transfer. The State argued, and the court agreed, that the motion had no merit. The following day, the court made a docket entry which declared:
motion to transfer to juvenile court is denied based upon the seriousness of the offense.

Obviously, by Appellant’s own admission, some type of hearing was conducted in the trial court. That hearing is not included in the record. It is well nigh impossible for us to determine what actually occurred below without the benefit of reviewing the transcript of the proceeding. For all we know, there may-have been a stiprdation of facts on the motion, thus eliminating the necessity for testimony. Without a record of the pretrial proceeding, we cannot conduct a meaningful review of Appellant’s argument. This court has repeatedly stated that it is the appellant’s burden to produce a record sufficient to support his arguments on appeal. Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994); Jones v. State, 314 Ark. 383, 862 S.W.2d 273 (1993), cert. denied, 114 S. Ct. 2743 (1994); Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993).

A similar situation was presented in Tucker v. State, 313 Ark. 624, 855 S.W.2d 948, rev’d on other grounds, 314 Ark. 500, 863 S.W.2d 813 (1993), where the appellant argued that his transfer hearing did not meet the due process standards provided in section 9-27-318, but failed to include a transcript of the hearing in the record. This court stated:

[W]e are at a loss to determine what precisely transpired at the hearing. Without a transcript of the hearing, we must assume that the court ruled correctly based on the arguments and testimony presented. See Woosley v. Arkansas Real Estate Comm’n, 263 Ark. 348, 565 S.W.2d 22 (1978); Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977).

Id. at 630, 855 S.W.2d at 951. This court went on to hold in Tucker that the criminal information, which charged the appellant with aggravated robbery and kidnapping, in and of itself was sufficient evidence of the serious and violent nature of the crimes to support an order denying the motion to transfer. Additionally, this court observed that it was not necessary for the trial court to give equal weight to each of the factors in section 9-27-318(e).

Here, Appellant was charged with capital murder for the robbery and resulting death of a clerk, who was shot twice in the head by Appellant. In light of our holding in Tucker and our long-standing rule that it is the appellant’s burden to produce a sufficient record on appeal, we affirm the trial court’s decision not to transfer the charge of capital murder against Appellant to juvenile court.

Motion for Directed Verdict

Appellant argues that the trial court erred in denying his directed-verdict motions made at the end of the State’s case and at the conclusion of all the evidence. We do not reach the merits of this issue as Appellant’s motions below were not sufficiently specific to apprise the trial judge of the particular alleged deficiencies in the evidence presented against him.

At the conclusion of the State’s case, Appellant’s counsel moved for a directed verdict on the ground that the State had “failed to prove the essential elements of the crime of capital murder and the issue be dismissed and the applicable charge to go forward with would be first degree murder.” At the conclusion of presentation of all the evidence, Appellant’s counsel renewed his motion for directed verdict, again asserting that the State had “failed to prove the essential elements of the crime of capital murder and that it should be dismissed and that the only charge to go forward be first degree murder.”

In order to preserve a sufficiency argument for appeal, proof of the element of the crime that is alleged to be missing must be specifically identified in a motion for a directed verdict, or the issue is deemed not preserved for appeal. Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996). Moreover, while it is true that Rule 4-3 (h) requires us to review the record for error in life and death cases, this review presupposes that a proper objection was made at trial. Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997). See also Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996). Here, because Appellant failed to make a specific motion for directed verdict indicating the particular deficiencies in the State’s proof, it is as if he failed to object at all, and that failure below precludes our review of the sufficiency of the evidence on appeal.

Motion for New Trial

Appellant filed a motion for new trial on the grounds that it was error for the trial court to have denied his motion for continuance and that such ruling deprived him of the opportunity to have been better prepared to present a defense of not guilty by reason of mental disease or defect. The decision of whether to grant or deny a motion for a new trial lies within the sound discretion of the trial court, and this court will not reverse that decision absent an abuse of discretion. Jones v. State, 321 Ark. 649, 907 S.W.2d 672 (1995); Clayton v. State, 321 Ark. 602, 906 S.W.2d 290 (1995). For the reasons stated above with regard to the trial court’s denial of the continuance, we find no abuse of discretion and affirm the trial-court’s denial of the motion for new trial.

Rule 4-3 (h)

In accordance with Ark. Sup. Ct. R. 4-3(h), the record of the trial has been examined for rulings adverse to Appellant on objections, motions, and requests by either party, and we find no reversible error.

Affirmed.


author: Annabelle Clinton Imber, Justice. Tom Glaze, Justice,

text:
    Nancy STEWART v. Billy NORMENT
    96-950
    941 S.W.2d 419
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997

      David W. Talley Jr., for appellant.

      Vickery & Landers, P.L.L.C., by: Ian W. Vickery, for appellee.
   Annabelle Clinton Imber, Justice.

At issue in this case is whether a chancellor may prohibit the recipient of a final judgment for child-support arrearages from garnishing the obligor’s employer, on the ground that an income-withholding order provided the recipient with the sole and exclusive method for enforcing the judgment. We reverse.

Nancy Stewart and Billy Norment were divorced on May 30, 1984. The chancellor awarded Stewart custody of the couple’s two minor children, along with $50 weekly in child support. The record reflects a number of orders finding Norment in arrears on his child-support payments. On July 10, 1985, Norment was found to be $1,133.75 in arrears, but had his present support obligation lowered to $40 weekly due to decreased earnings. An August 31, 1995 order shows that Norment was $11,653.75 in arrears. Due to increased earnings, his support obligation was raised to $128.00 per week, and his employer was ordered to withhold $129 per week from his income. Norment moved to set aside this order, and the trial court held a hearing on the matter.

On March 6, 1996, the chancellor entered another order, crediting Norment with $2,150 in child-support payments outside of the court registry, and reducing his support arrearage to $9,627.75. The trial court additionally found that Norment’s net wages had increased to $781 every two weeks, and ordered him to pay $196.00 every two weeks in child support. Norment was also ordered to pay $20 every two weeks to be applied to the arrearage. To accomplish this, the trial court directed Norment’s employer to withhold $217 from Norment’s wages every two weeks. This order did not state that the income-withholding order would be the sole and exclusive method for payment of the arrearage.

Stewart subsequently attempted to garnish Norment’s employer in an attempt to collect on the arrearage, and Norment moved to quash the writ. On June 10, 1996, the chancellor entered an order which provided in part as follows:

When the Court issued the Order of [March 6, 1996] it was the Court’s intention that the additional award of $20.00 every two weeks to be applied to the child support arrearage would be the sole and exclusive method for the payment of the arrearage. Therefore, [Stewart] is barred from the use of any other method for collection of the judgment.

Stewart appeals from this order, and maintains that the chancellor abused his discretion in quashing the writ. The case was certified from the court of appeals as involving a question of statutory interpretation.

For her sole point on appeal, Stewart argues that the chancellor was clearly erroneous in finding that the income- withholding order entered on March 6, 1996, provided her with the sole and exclusive method of collecting on the judgment. In support of her argument, Stewart cites Ark. Code Ann. § 9-14-234(b) (Supp. 1995), which provides that any order that contains a provision for child-support payments shall be a final judgment subject to a writ of garnishment as to accrued installments until a party moves to set aside or modify the order.

The statutory language is clear. The General Assembly has provided that an order for child-support arrearages is a final judgment subject to garnishment or execution until the order is modified or otherwise set aside. The fact that an order also provides for income withholding to satisfy accrued support arrearages is irrelevant in determining whether garnishment provides a viable alternative method for collecting the arrearage. This conclusion is supported by Ark. Code Ann. § 9-14-202 (Repl. 1993), which states that the remedies provided in the child-support enforcement subchapter “shall not be exclusive of other remedies presently existing,” and by Ark. Code Ann. § 9-14-218(a)(l)(B) (Supp. 1995), which expressly provides that the use of income withholding in orders providing for child support “does not constitute an election of remedies and does not preclude the use of other enforcement remedies.”

The facts of the present case are analogous to Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978), where the appellant obtained an award for child-support arrearages in the amount of $3,096. The trial court ordered that the support and arrearage should be paid back at a rate of $5 a month “and that execution was to be held in abeyance unless [the obligor] failed to make prompt payments each month.” Id.

The Sharum court concluded that the chancellor erroneously held execution on the judgment in abeyance. The court characterized a judgment for past-due child-support payments as being like “any other judgment, whether at law or equity.” Id. Likening garnishment after a judgment to a form of execution, the court applied the general garnishment statutes to a final judgment for arrearages, concluding that:

A court may not restrict the right of one parent to collect a judgment against the other for arrearages in child support payments by legal process; it may, however, if changed circumstances have rendered the payments inequitable, in its discretion, decline to enforce, by contempt proceedings, the payment of a greater sum than the circumstances warrant.

Id. (citations omitted).

While the decree in Sharum, supra, did not employ income withholding as in the present case, the general principle would still apply. A decree providing for child-support payments is a final judgment with respect to accrued payments until a party moves to set aside or modify the decree. That being the case, there is no reason why the recipient of such a judgment should not be able to resort to legal process to execute on the past-due payments, as could be done with any other judgment.

The Illinois Appellate Court considered a fact situation quite similar to the present case in Keeler v. Keeler, 509 N.E.2d 142 (Ill. App. Ct. 1987), where the trial court entered an order providing for an $18,015 arrearage. Under the terms of the order, the trial court also required $110 per week in income withholding from the obligor’s wages under the Illinois Marriage and Dissolution of Marriage Act. The recipient then instituted garnishment proceedings, which the obligor successfully enjoined. The trial court found “that [the recipient] could rely only on the order for withholding in order to enforce the judgment.” Id.

The Keeler court reversed, citing to the Illinois Marriage and Dissolution of Marriage Act’s express statement that income withholding was “in addition to and not in substitution for any other rights, remedies, duties and penalties created by any other law.” Id. (quoting Ill. Rev. Stat. ch. 40 par. 706.1 (J)(1) (1985)). Thus, it was the public policy of Illinois “to ensure enforcement of support judgments through all available means.” Id. Because income withholding was not an exclusive remedy under the Act, the trial court erroneously enjoined the garnishment proceedings.

We find Keeler’s rationale persuasive in light of Arkansas’s income-withholding statute. As stated above, the statute expressly states that income withholding is not an exclusive remedy. Ark. Code Ann. § 9-14-218(a)(l)(B). Clearly, it was the General Assembly’s intent to allow the enforcement of a judgment for arrearages.by all available means, including but not limited to income withholding. Accordingly, we reverse, finding that the chancellor was clearly erroneous in quashing Stewart’s writ.

Reversed and dismissed.

Glaze and Thornton, JJ., dissenting in part.

Tom Glaze, Justice,

dissenting in part. I agree to reverse, but would remand for the following reason. While I agree the chancellor erred in barring Stewart from using other methods of collection of her judgment for arrears, I believe on remand the chanceEor may dispense with the $20 biweekly payments he ordered. Neither the holding Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978), nor the statutes cited in the majority opinion required the additional payments under the facts of this case. Thus, I agree with the majority’s reversal of this cause, but I would reverse and remand, leaving it open for the chanceEor to reconsider whether the additional support payments should be continued in these circumstances.

Thornton, J., joins this opinion.

       We are not unmindful of Norment’s concern regarding the amount of wages that may be lawfully garnished. Of course, Norment’s employer must comply with the Consumer Credit Protection Act, 15 U.S.C. §§ 1671 - 1677.


author: Per Curiam.

text:
    Tony ALAMO v. Christhiaon COLE
    97-318
    941 S.W.2d 425
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997

      Eric M. Lieberman, for appellant.
    No response.
   Per Curiam.

Appellant Tony Alamo, by his attorney, Eric M. Lieberman, has filed a motion for rule on the clerk.

Appellant alleges that the Clerk of the Supreme Court rejected appellant’s petition for review because, as a matter of unwritten practice, “the Supreme Court does not review per curiam decisions of the Court of Appeals.” If appellant’s petition for review was indeed rejected for the reason stated by appellant’s counsel, the rejection would have been error. In any event, we have considered appellant’s petition for review and find that it has no merit.

The motion is, therefore, denied.


text:
    Terrell Demond BAKER v. STATE of Arkansas
    CR 96-502
    941 S.W.2d 426
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997

      Tell Hulett, for appellant.
    No response.
   Per Curiam.

Appellant Terrell Demond Baker was convicted of second-degree murder, attempted second-degree murder, and theft of property and sentenced to an aggregate term of thirty-five years’ imprisonment. His retained counsel, Tell Hulett, filed a brief contending that the appeal is without merit. The State has filed a motion asking that we direct appellant to comply with Ark. Sup. Ct. R. 4 — 3(j) (1), which requires that a no-merit brief contain an argument section that consists of a list of all rulings adverse to the appellant made by the trial court on all objections, motions and requests made by either party, along with an explanation as to why each adverse ruling is not a meritorious ground for reversal. See also Anders v. California, 386 U.S. 738 (1967).

Since the filing of appellant’s brief, Mr. Hulett is now deceased. We deny the State’s motion at this time, and grant the appellant a period of thirty days in which to obtain new counsel.

Motion denied.


text:
    Antonio BRITT v. STATE of Arkansas
    CR 97-200
    942 S.W.2d 251
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997

      Ronald C. Wilson, for appellant.
    No response.
   Per Curiam.

Ronald C. Wilson, attorney for appellant, Antonio Britt, has filed a motion to withdraw as counsel, stating that it would be in the best interest of all concerned.

The motion further states that another attorney, Don Forrest, has expressed an interest in handling the case. However, as of this date, no motion to appoint substitute counsel has been filed on behalf of appellant.

The motion is, therefore, denied.


text:
    Wiley GRUBBS v. CREDIT GENERAL INSURANCE COMPANY
    96-889
    942 S.W.2d 249
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997

      Catlis L. Childs, for appellant.

      Wright, Lindsey &Jennings, by: Kathryn A. Pryor and Kristi M. Moody, for appellee.
   Per Curiam.

Appellant Wiley Grubbs moves this court for attorney fees in the amount of $9,268.75, following his successful appeal in this case. See Grubbs v. Credit Gen. Ins. Co., 327 Ark. 479, 939 S.W.2d 290 (1997). In that case, which involved an insurance claim by Grubbs against Credit General, we reversed an order of summary judgment entered in favor of Credit General and remanded the case to the trial court for further proceedings. The two attorneys for Grubbs have attached affidavits to the motion for attorney fees, attesting to their respective fees and further attached affidavits from third-party attorneys, attesting to the reasonableness of the hourly rates charged. Grubbs cites Ark. Code Ann. § 23-79-208 (Repl. 1992), as authority for collecting these attorney fees from an insurance company.

Credit General responds that awarding attorney fees is premature because attorney fees under § 23-79-208 are awarded when the judgment amount against the insurer is within 20 percent of the amount claimed. No judgment has been entered in this matter. Credit General further contends that the amount claimed is excessive and that this litigation is a third-party subrogation action to which § 23-79-208 does not apply.

We do not reach the issues of the alleged excessiveness of the fees or application of § 23-79-208 to third-party claims because we agree with Credit General that an award of attorney fees before recovery under the policy is premature. There has been no recovery by Grubbs at this stage but only a remand for further proceedings. Grubbs is entitled to the costs of his successful appeal under Ark. Sup. Ct. R. 6-7(b), but the costs of appeal do not include attorney fees.

The motion is denied without prejudice to raise the issue of attorney fees, if Grubbs is successful in recovering under the policy.

Glaze, J., not participating.


author: Per. Curiam;.

text:
    Will Alfred JAMES v. STATE of Arkansas
    CR 97-311
    942 S.W.2d 250
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997

      James P. Massie, for appellant.
    No response.
   Per. Curiam;.

Appellant was convicted on August 22, 1996, of attempted capital murder of a police officer and of third-degree battery. His notice of appeal was filed on September 18, 1996. On December 2, 1996, the Circuit Court of Pulaski County, Seventh Division, extended appellant’s time for filing the appeal record until March 11, 1997. The record was tendered to the clerk’s office after the extended time for filing had lapsed.

Appellant has filed a motion for rule on the clerk to file a belated record. In his motion, appellant states that the reason that the record was tendered late is that the Pulaski County Circuit Clerk’s office failed to turn the transcript over to appellant’s counsel before the time for filing had lapsed. Appellant states that he was informed by the Pulaski County Circuit Clerk’s office on March 17, 1997, that the record was ready and that he then offered it with this motion on March 18, 1997.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. McCoy v. State, 324 Ark. 452, 921 S.W.2d 605 (1996); see also In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Here, the attorney does not admit fault on his part but instead states that the Pulaski County Circuit Clerk’s office failed to turn the record over to him. We have held that a statement asserting that the failure to timely file was someone else’s fault or no one’s fault is unavailing. Reyes v. State, 326 Ark. 913, 934 S.W.2d 526 (1996). Therefore, appellant’s motion must be denied.

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

The present motion for rule on the clerk is denied.


text:
    Paul Steven JONES v. STATE of Arkansas
    CR 97-351
    940 S.W.2d 887
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997

      John F. Gibson, Jr., for appellant.
    No response.
   Per Curiam.

Paul Steven Jones, by his attorney, has filed a motion for a belated appeal. His attorney, John F. Gibson, Jr., admits in his motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is therefore granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Roderick Leshun RANKIN v. STATE of Arkansas
    CR 96-1025
    942 S.W.2d 251
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997
    Gene E. McKissic, for appellant.
    No response.
   Per Curiam.

The procedural history of this appeal was recited in our per curiam order of March 24, 1997. By that order we granted Roderick Leshun Rankin’s motion to be allowed to file a belated brief. We also ordered his counsel, Gene E. McKissic, to appear to show cause why he should not be held in contempt of this Court for failure to file a brief on behalf of Mr. Rankin by February 20, 1997, which we had designated as the date it was due after a third and “final extension.”

Mr. McKissic appeared on April 7, 1997, pleaded guilty in response to the contempt citation, and offered a statement in mitigation concerning his heavy case load as a member of one of two law firms in Jefferson County sharing the work of representing indigent clients pursuant to a contract with the County.

We accept Mr. McKissic’s plea and statement. He is hereby fined $250. A copy of this order will be forwarded to the Committee on Professional Conduct.


text:
    UNIGARD SECURITY INSURANCE CO. and Employers’ Surplus Lines Insurance Co. v. MURPHY OIL USA, INC.; Murphy Oil USA, Inc., Cross-appellant v. Associated International Insurance Co., California Union Insurance Co., and Lloyd’s of London, Cross-appellees
    96-843
    942 S.W.2d 824
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997

      Wright, Lindsey & Jennings, by: M. Samuel Jones III and Claire Shows Hancock, for appellee, cross-appellant, cross-appellee, Murphy Oil USA, Inc.

      Shackleford, Phillips, Wineland & Ratcliff, P.A., by: Teresa Wineland, for appellee/cross-appellant, Associated International, Inc.
   Per Curiam.

Murphy Oil USA, Inc., moves this court to strike the reply brief of cross-appellant Associated International Insurance Company on the basis that filing the reply brief violates the time limits in the Stipulation for Briefing Schedule agreed to by all parties, including Associated International.

Associated International has a pending cross-appeal against Murphy Oil. The style of this case does not reflect that cross-appeal, but the style appears to be abbreviated, and Murphy Oil and Associated International do not contest this point. Moreover, a notice of appeal in the record filed by Associated International reflects a cross-appeal against Murphy Oil. On December 9, 1996, the Clerk of the Supreme Court issued a briefing schedule in conjunction with a per curiam order from this court addressing various motions of the parties. See Unigard Security Ins. Co. v. Murphy Oil USA, Inc., 326 Ark. 826, 937 S.W.2d 627 (1996). That briefing schedule provided that “[c]ross-appeflant’s reply brief due 15 days after last cross-appellee’s brief is filed. . . .”

Thereafter, Murphy Oil moved for amendment to the briefing schedule and requested that a stipulated schedule of the parties be adopted. The stipulated briefing schedule provided that it “shall apply to all briefs yet to be filed,” and it further provided that Murphy Oil’s response brief to Associated International’s cross-appeal was due February 14, 1997. A reply brief in connection with Murphy Oil’s cross-appeal against Unigard and ESLIC was due on March 1, 1997. No reference to a reply brief by Associated International on its cross-appeal against Murphy Oil was included in the stipulated schedule. All parties agreed to the stipulated schedule, including counsel for Associated International. This court granted Murphy Oil’s motion to amend the briefing schedule on February 10, 1997.

Associated International filed its reply brief in its cross-appeal against Murphy Oil on February 25, 1997, and Murphy Oil moved to strike the reply brief on the basis that it was contrary to the stipulated briefing schedule. Associated International argues in response to that motion that failure to include its reply brief in the stipulated schedule was an oversight and that Ark. Sup. Ct. R. 4-4 permits reply briefs by cross-appellants to be filed within 15 days of the cross-appellee’s brief.

The motion to strike is denied. Supreme Court Rule 4-4 does permit a cross-appellant to file a reply brief within 15 days of the cross-appellee’s brief. Moreover, Murphy Oil recognized the value of a reply brief for a cross-appellant by including a deadline for its own cross-appeal in the stipulated briefing schedule but did not include a time frame for the reply brief of Associated International. We do not view counsel’s signature on the stipulated schedule as a waiver of the right of Associated International to file a reply brief.

Glaze and Corbin, JJ., not participating.


text:
    Brian John WHITE v. STATE of Arkansas
    CR 96-955
    941 S.W.2d 426
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997

      Sam Sexton III, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Senior App. Advocate, for appellee.
   Per Curiam.

Appellant Brian John White files motions to dismiss appeals from two revocation proceedings that have been filed under separate numbers, CR96-1232 and CR96-1233. The underlying criminal case that led to White’s revocation was also appealed and that case reflects appeal number CR96-955. On August 16, 1996, White requested all three pending appeals be consolidated, but we denied that request on September 16, 1996.

Even though we denied consolidation of the three appeals, White expresses confusion that he was unaware that the revocations had been given separate appeal numbers CR96-1232 and CR96-1233, and in February 1997, he filed his briefs due in the revocation cases, in appeal case number CR96-955.

Because briefing schedules had been established in case numbers CR96-1232 and 1233, and no briefs filed, the State has moved to dismiss those two appeals. However, White now asks the revocation appeals docketed as CR96-1232 and 1233 be decided as a part of case number CR96-955.

Obviously, because we did not consolidate White’s three appeals, he is required to meet the briefing schedule established in each appeal. Our granting White his earlier motion for a brief enlargement in case number CR96-955 was unnecessary and is rescinded. Instead, White is directed to file his respective briefs in each designated appeal within seven days. We deny the State’s motion to dismiss CR96-1232 and 1233, and further deny White’s motion requesting those appeals be decided as a part of CR96-955.

Corbin, J., not participating.


text:
    Cleotis WILLIS v. STATE of Arkansas
    CR 95-1218
    942 S.W.2d 252
    Supreme Court of Arkansas
    Opinion delivered April 14, 1997

      Donny Gene Gillaspie, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Asst. Att’y Gen., for appellee.
   Per Curiam.

On June 12, 1995, Cleotis Willis filed a notice of appeal from a criminal conviction. The record was not filed in a timely manner with this Court. On January 8, 1996, we granted a motion for rule on the clerk based upon the admission of fault by Donny Gene Gillaspie, Mr. Willis’s counsel, in failure to tender the record on time.

On January 8, 1996, Mr. Gillaspie filed a motion to complete the record which was granted on January 29, 1996, and the case was remanded for that purpose to the Trial Court. By letter of March 25, 1996, the Clerk of this Court inquired of Mr. Gillaspie as to the status of the case. The Clerk’s record indicates that Mr. Gillaspie telephoned on April 8, 1996, to inform the Clerk that Mr. Willis had been declared indigent and that the record had been ordered. On August 20, 1996, the Clerk again inquired by letter as to the status of the case. Our Clerk’s record contains letters from the Trial Court and his Court Reporter indicating that further delay was caused by inability of the Reporter to produce the record in a timely manner.

By letter of February 18, 1997, the Clerk informed Mr. Gillaspie that the record had been filed on December 23, 1996, but that a brief for Mr. Willis, which was due February 1, 1997, had not yet been filed. The Clerk’s record contains no response from Mr. Gillaspie.

On March 10, 1997, the State moved to dismiss the appeal due to the failure of Mr. Willis to file a brief. On March 19, 1997, Mr. Gillaspie responded on behalf of Mr. Willis asking that the State’s motion to dismiss be denied and that he be allowed to file a belated brief. Mr. Gillaspie recited a personal medical problem as the cause of his failure to file the brief. He indicated that the problem had been resolved and he would be able to file a brief within ten days or two weeks.

The State’s motion to dismiss the appeal is denied.

We grant Mr. Willis’s motion to file a belated brief. The brief will be due on May 12, 1997.


author: W.H.“Dub” Arnold, David Newbern, Justice,

text:
    Kathy ESRY v. James CARDEN
    96-406
    942 S.W.2d 846
    Supreme Court of Arkansas
    Opinion delivered April 21, 1997

      Mitchell, Blackstock and Barnes, by: Jack Wagoner III, for appellant.

      Matthews, Sanders, & Sayes, by: Margaret M. Newton and Mel Sayes, for appellees.
   W.H.“Dub” Arnold,

Chief Justice. This is a personal-injury case where Kathy Esry, the appellant, brought suit against James Carden, the appellee, to recover for injuries allegedly sustained in an automobile accident. At trial, appellant testified that she had incurred damages for medical bills, lost wages and mileage expenses totalling over $8400; appellee challenged these damages. Appellee testified that the accident was minor and that neither he nor his passenger was injured; additionally, he testified that the accident was his fault. The jury returned a general verdict in favor of appellee despite his testimony that he was responsible for the accident.

On appeal, appellant argues that the verdict for the appellee resulted from trial court errors which created a false picture for the jury, thus depriving appellant of a fair trial. Specifically, appellant claims that (1) the jury’s verdict was against the preponderance of the evidence; (2) the trial court erred in denying the appellant’s motion for a new trial; and (3) the trial court erred in suppressing evidence related to the appellee’s insurance coverage to rebut his testimony that he did not work because of disabilities. We conclude that there was substantial evidence to support the jury’s finding and that the trial court did not abuse its discretion in the exclusion of evidence related to insurance coverage; therefore, we affirm.

I. Sufficiency of Evidence to Support the Jury’s Verdict

Appellant’s first and second arguments regard the sufficiency of the jury’s verdict and the trial court’s denial of the motion for a new trial. Rule 59(a) of the Ark. Rules of Civil Procedure allows a motion for a new trial to be granted upon a showing of one of eight reasons. One permissible reason is that “the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to law.” Ark. R. Civ. P. 59(a)(6). In Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994), we stated that the test on appeal for a denial of a motion for a new trial is “whether there is substantial evidence to support the jury verdict.” Id. at 310, citing Minerva Enter. Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992). Substantial evidence is defined as “evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture.” Id. In examining whether substantial evidence exists, all evidence must be examined “in the light most favorable to the party on whose behalf the judgment was entered and [given] its highest probative value, taking into account all reasonable inferences deducible from it.” Id., citing Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829 (1992). In such situations, the “weight and value [of testimony] is a matter within the exclusive province of the jury.” Id., citing Rathbum v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

In instances where the verdict is against the party which has the burden of proof and that party appeals the denial of a motion for a new trial, the test above is not applied strictly. In Hall, we held that, in such instances, “a literal application of the rule would be untenable, as the defendant may have introduced little or no proof” yet been granted the verdict. Id. at 312.

This case provides a similar factual scenario to a case we recently decided, Bell v. Darwin, 327 Ark. 298, 937 S.W.2d 665 (1997). In Bell, the appellee was involved in an automobile accident, and in his deposition, admitted fault for a portion of the accident. Despite the testimony, the jury returned a general verdict for the appellee. The appellant moved for a new trial which was denied; an appeal followed. We determined that although the appellee had admitted fault, there was substantial evidence for the jury to determine conversely that he was not at fault. Accordingly, a jury is in the best position to determine the weight to be given testimony. Id. at 301-02.

In Primm v. U.S. Fidelity & Guaranty Ins. Corp., 324 Ark. 409, 922 S.W.2d 319 (1996), we determined that when a jury returns a general verdict, such a verdict could be based upon a finding of no liability, no damages, or both; we will not speculate on the basis of a jury’s verdict. When special interrogatories concerning liability or damages are not requested, we are left in the position of not knowing the basis for the jury’s verdict, and we will not question nor theorize about the jury’s findings. See, Barnes, Quinn, Flake & Anderson v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993). See also, Smith v. Babin, 317 Ark. 1, 875 S.W.2d 500 (1994); Harding v. Smith, 312 Ark. 537, 851 S.W.2d 427 (1993); and Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994).

Appellant’s testimony revealed several areas in which the jury could possibly have questioned her credibility and the legitimacy of her injuries. Immediately following the accident, she stated that she was not injured, refused medical treatment, and drove her automobile home. She sought medical attention the day following the accident complaining of an injury to her neck; the report from this doctors’ examination indicated that her physical condition was normal and her x-rays showed no injuries. Approximately two weeks later, she scheduled an appointment with a neurosurgeon; she was administered an MR.I, the results of which were normal. On cross examination, appellee’s counsel questioned whether she had hired an attorney prior to this doctors’ appointment. She testified that she had not; however, the medical report of this doctor indicated that a copy of the report was forwarded to appellant’s counsel. Several months later, she scheduled an appointment with an orthopedic surgeon who suggested conducting an MR.I one year later to follow-up on the pain she reported. The second MR.I showed a bulging disk which the doctor, in a video deposition, classified as a minimal injury that he could only assume was caused by the accident because he did not know of any other injuries sustained by the appellant.

Appellant’s testimony regarding the amount of her damages was challenged by appellee. On cross-examination, appellant admitted that she was seeking compensation for mileage to and from doctors appointments which were in the same building where she worked and which were scheduled on days she was already at work. Another important fact to note is that the only medical evidence submitted by appellant were written doctors’ records and a video deposition of the orthopedic surgeon in which he testified that he assumed the accident caused appellant’s injuries because he knew of no other occasion in which appellant had been hurt.

Appellee testified that he was disabled, and although he had previously fractured his skull, broken his backbone and neck, he barely felt the impact of the accident and was not injured. He testified that his passenger sustained no injuries in the accident. He also testified that he “supposedly hit [the appellant] because [he] hit behind the front door” and that he assumed the accident was automatically his fault because he was in the appellant’s lane of traffic.

It is our determination that there was substantial evidence to support the jury’s verdict. It is feasible that the jury could have determined, without speculation, that although the wreck was the fault of the defendant, appellant’s injuries were not a result of the wreck. Additionally, it is conceivable that the jury could have determined that the defendant was not at fault although he testified that he was. Taking into consideration all of the evidence submitted and the fact that the jury returned a general verdict for the defendant, it is impossible to know exactly how the jury balanced the evidence submitted; therefore it is not within our domain to question the jury’s general verdict.

II. Evidentiary Issues

Appellant’s principle argument arises from testimony given by appellee in his defense in which he stated that he was disabled and not working. Immediately after appellee’s remarks, appellant approached the bench and, outside the jury’s presence, claimed that the remarks opened the door for evidence regarding the existence of appellee’s liability insurance policy. The testimony in question follows:

Mr. Sayes: [Defendant’s Attorney] Now what do you do for a living?
Defendant: I’m disabled.
Mr. Sayes: Do you have some physical problems of some sort?
Defendant: Yeah, I broke my back and neck.
Mr. Sayes: You broke your back and neck?
Defendant: Yes, sir, fractured my skull and several other things.
Mr. Sayes: So you do not work I take it?
Defendant: No, sir.

[BENCH CONFERENCE]

Mr. Sayes: Mr. Carden, this is my last question. As a result of this incident, were you injured in any way?
Defendant: Well, I already had prior injuries and I have a doctor that I go see every month.
Mr. Sayes: Were you any worse as a result of this than what you were before?
Defendant: I didn’t hardly feel it. It was just a ricochet off the front of my truck.
Mr. Sayes: Did you drive away?
Defendant: Yes, sir. I drove the truck for three months.
Mr. Sayes: Was your passenger injured?
Defendant: No, sir.

Appellant argues that this testimony “opened the door” to allow the introduction of appellee’s liability insurance policy because testimony relating to appellee’s unemployment could mislead the jury to assume that appellee did not have the financial means to endure a judgment. Appellant claims that such evidence is necessary to rebut the presumption of the appellee’s meager financial status. Appellee argues that this particular questioning does not create such a presumption nor is it misleading. Appellee further argues that the sole reason for this testimony was to illustrate that the disabled appellee was not injured as contrasted with the appellant who claimed extensive injuries. At the bench conference, the trial court ruled that the door had not been opened for the introduction of insurance evidence and thus excluded evidence related to appellee’s insurance policy.

A trial court’s ruling on the admission or exclusion of evidence will not be reversed absent abuse of discretion. See, Ark. R. Evid. 104(a); Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). As a general rule, it is improper for either party to introduce or elicit evidence of the other party’s insurance coverage. Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973); York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980). However, a party opens the door for the introduction of evidence which might otherwise be inadmissible under the collateral-source rule when that person testifies about his or her financial condition in a false or misleading manner. Younts v. Baldor Electric Co., 310 Ark. 86, 832 S.W.2d 832 (1992); Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992).

In Peters v. Pierce, the appellant claimed that the trial court erred in excluding evidence of the existence of appellee’s insurance coverage after the appellee had testified about his financial condition and how a judgment would devastate him financially. This court reversed the trial court’s ruling and remanded the proceeding for a new trial.

The testimony in Peters was an unresponsive remark by the defendant in which he stated that he would be financially devastated in the event of an adverse judgment against him. In a bench conference, the trial court concluded that the defendant’s testimony “seemed [to have] an impact on the jury.” Id. at 63. Despite this determination, the trial court excluded evidence regarding the appellee’s insurance coverage. We determined that such testimony could have left the jury with the unfair impression that the appellee would have to bear the financial burden of a judgment alone and that the plaintiff should have had an opportunity to refute such misleading testimony. In such a situation, there was an abuse of discretion by the trial court.

In the case before us, the trial court made no determination that the jury had been misled by the testimony in question. In fact, at the bench conference, the trial court heard appellant’s objection that the testimony would lead the jury to believe that appellee did not have funds to pay a judgment. The trial court did not find that prejudice had occurred; instead, the trial court determined that the door had not been opened for the introduction of insurance related evidence. The trial court was in a much better position to determine whether the jury was misled by this testimony than we are. We cannot speculate upon the jury’s general verdict and determine whether such testimony was prejudicial. Absent proof that the trial court denied a motion to include insurance evidence despite a finding that the jury was prejudiced, we cannot conclude that the trial court abused its discretion in ruling upon the exclusion of such evidence.

For the foregoing reasons, the trial court decision is affirmed.

Affirmed.

Newbern, Glaze, and Thornton, JJ., dissent.

David Newbern, Justice,

dissenting. The collateral source rule should not be used to allow an unfair advantage to occur to a defendant attempting to avoid liability. The majority opinion relies on Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992), in which the Trial Court determined that the defendant’s remark that he would be financially ruined by a judgment against him “[had] an impact on the jury.” That case is cited to support the proposition that the Trial Court must make such a finding before error can be assigned to the exclusion of insurance coverage information. That is not so.

The Peters case and others the majority cites, stand, rather, for the proposition that relevance and good faith of the offering party are the key factors in allowing or excluding evidence of insurance coverage. When a party testifies about his or her financial condition in a false or misleading manner, the door opens to otherwise inadmissible insurance information. Younts v. Baldor Elec. Co., 310 Ark. 86, 89, 832 S.W.2d 832, 834 (1992).

The injection of a reference to insurance coverage is not proper unless it is relevant and pertinent to some issue in the case. Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973). References to insurance are prejudicial and beyond cure by an admonition when they are not made in good faith. Id.

In York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980), and Younts v. Baldor Elec. Co., supra, considerations of the relevance of insurance coverage allowed its introduction to stand. Mr. York testified that he would have had additional work performed on his vehicle had he been able to afford to do so. We upheld the Trial Court’s decision to allow the defense to show that Mr. York could have repaired all the damage to his vehicle with the insurance proceeds, had he chosen to. We held that Mr. York’s statement’s were misleading to the jury and made the issue of insurance relevant.

In the Younts case, Mr. Younts testified on direct examination that he could not afford to reopen his business. Because that point was not at issue, the Trial Court allowed the defense to cross-examine Mr. Younts about the insurance proceeds he had received. The Court upheld the Trial Court’s allowance of the evidence on the ground that Mr. Younts’s testimony was misleading to the jury and he had made the issue of insurance relevant.

The Peters case relied on by the majority is very similar to the case at bar in that evidence of the defendant’s work status was introduced. Mr. Peters said that he was retired and any money taken from him to satisfy a judgment could not be replaced. We reversed the Trial Court’s exclusion of insurance evidence on the ground that Mr. Peters had made it appear he was alone in satisfying any judgment against him and thus could not afford to pay one. The testimony was misleading to the jury.

In this case, Mr. Carden testified that he was disabled and did not work. His attorney led him through a series of questions designed to bring out his preexisting physical injuries in order to contrast his condition after the accident with that of Ms. Esry. I can accept the explanation that the testimony about Mr. Carden’s physical condition might have been elicited to show that, despite his fragile condition he suffered no injury in the collision and thus it must have been minor. I cannot, however, agree that the concluding question, “So you do not work I take it?”, had any purpose other than to suggest to the jury that Mr. Carden was unemployed and thus that levying a judgment upon him would impose a hardship upon him greater than upon one who had a source of funds to pay it.

The question relating to Mr. Carden’s unemployed status was irrelevant and misleading to the jury. Ms. Esry should have been allowed to submit evidence of Mr. Carden’s insurance coverage.

I respectfully dissent.

Glaze and Thornton, JJ., join in this dissent.