text:
    Andrew S. ROSS, Jr. v. STATE of Arkansas
    CR 01-324
    57 S.W.3d 152
    Supreme Court of Arkansas
    Opinion delivered October 11, 2001

      William O. James, Jr, and Clay T. Buchanan, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Andrew Ross, Jr., was charged with aggravated robbery and capital murder. He was convicted of capital murder and sentenced to life imprisonment without parole. For his only point on appeal, Mr. Ross claims that the State failed to present substantial evidence to support his conviction. We disagree and affirm.

In the early morning hours of September 4, 1999, Robert Branscum, owner and operator of the Quality Liquor Store in Blytheville, was killed in the parking lot of that store. A nearby business owner testified that he heard about five gunshots around 1:30 a.m. on September 4. Officers arrived on the scene at approximately 6:00 a.m. and found Mr. Branscum’s body. He had been shot several times, and a later autopsy by the State Medical Examiner indicated that Mr. Branscum died as a result of gunshot wounds.

Around 2:30 a.m. on September 4, 1999, the Osceola police were called to the hospital in Osceola to investigate a patient suffering from a gunshot wound. The patient was Andrew Ross, Jr. When the police arrived, Mr. Ross was unclothed from the waist down due to the fact that he had been shot in the groin area. No one else in the room had similar wounds. A police officer found a pair of orange parachute pants only a few feet from Mr. Ross’s body. The orange pants had two holes in the front groin area that tested positive for trace elements indicating a bullet hole. The officer also discovered a ski mask inside the pants. Later, a t-shirt with a hole in the “front shirttail area” was found in Mr. Ross’s home. The trace-evidence examiner for the State Crime Laboratory found lead vapor residue around the hole in the t-shirt and testified that this finding would be consistent with the t-shirt being in “close proximity,” or “within a matter of feet,” of a firearm at the time of discharge.

Mr. Ross was arrested on September 26, 1999, at around 9:30 p.m. After being advised of his Miranda rights and waiving them, he gave two statements in which he admitted being present at the crime scene. In his first statement, Mr. Ross indicated that he did not know anything about the robbery until he drove by the liquor store and saw Carlos McFerrin run out in the street and flag him down. In a subsequent statement given later that same night, he admitted that he had seen Carlos McFerrin and Bernard Johnson less than an hour prior to the incident and that he knew they were planning to “hit” Quality Liquor. He also acknowledged he had been “hanging around” with Mr. McFerrin prior to the robbery.

According to his second statement, Mr. Ross knew the robbery was in progress and decided to drive by the liquor store because he “got worried about Carlos [McFerrin].” When he arrived at the liquor store, Mr. McFerrin flagged him down and asked for a ride. At that point, Mr. Ross put his car in park and got out of the car “to see what’s going on.” Mr. Ross explained that, after he got out of his car at the crime scene, the victim came out of the liquor store and “proceeded to shoot.” He then saw both Mr. McFerrin and Mr. Johnson shoot the victim several times.

During both statements, Mr. Ross conceded that he had been shot in the groin by the victim. He told the police that the victim fired at him from the front of the liquor store and he “fell against [his] car,” which was parked out on the road. This account, however, was contrary to the evidence of lead vapor residue on his t-shirt that indicated a close-range discharge of the firearm. He also claimed that, after he had been shot in the groin and after the victim had been shot, Mr. McFerrin tried to give his gun and mask to Mr. Ross: “I told him I wouldn’t take the gun but I’d take the mask and I put it in my sweats and I drove off in the car.” Furthermore, Mr. Ross stated that, after the incident, he asked his aunt to take him to the Osceola hospital, rather than the Blytheville hospital, because he did not want anyone to “think I had something to do with the shooting that’s over there by the liquor store.” His aunt, Rosetta Ross, testified at trial that Mr. McFerrin rode in the car with her, her daughter, and Mr. Ross as she drove to the hospital in Osceola. Her testimony, however, was contradicted by Mr. Ross, who told the police that Mr. McFerrin did not go with them to Osceola.

The evidence also indicated that Mr. McFerrin was arrested on the morning of the murder, and $1,400 in cash was found on his person. In addition, a -search of Mr. McFerrin’s sister’s residence revealed another $1,200 cash in a mattress. The two sets of bills were sequentially numbered. After Mr. McFerrin’s arrest, he directed officers to 1201 Ferrell Street in Blytheville, where two handguns were recovered in a floor furnace of an abandoned home. One of the guns, a 9-millimeter Ruger, was identified by Mrs. Branscum as belonging to her husband. That gun had one expended round and one round jammed in the chamber. The other gun was a Ruger P89, or .357, which had five expended rounds. A DNA specialist at the State Crime Laboratory testified that Mr. Branscum’s blood was found on both guns.

I. Sufficiency of the Evidence

For his only point on appeal, Mr. Ross claims that the State failed to present substantial evidence to support his conviction for capital murder. During his trial, Mr. Ross made a motion for directed verdict at the end of the State’s case and renewed that motion at the close of trial. Both motions were denied. A motion for directed verdict is a challenge to the sufficiency of the evidence. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). The test for determining sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id.

Circumstantial evidence may constitute substantial evidence to support a conviction. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). Guilt can be established without eyewitness testimony and evidence of guilt is not less because it is circumstantial. Id. The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Id. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id. Overwhelming evidence of guilt is not required in cases based on circumstantial evidence; the test is one of substantiality. Id.

Mr. Ross was convicted of capital murder pursuant to the felony-murder provision of the capital-murder statute. Under that statute, a person commits capital murder if:

(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit. . . robbery . . . and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.

Ark. Code Ann. § 5-10-101 (a) (Repl. 1997). The underlying felony is an essential element of a capital-felony murder charge. Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). To prove capital-felony murder, the State must first prove the felony. Id. Nevertheless, the prosecution is not required to prove that a robbery occurred in order for a defendant to be convicted of capital-felony murder. Id. The prosecution only needs to prove that a defendant, acting alone or with his accomplices, attempted to commit a robbery and that, in the course of or in furtherance of the attempted robbery, he or an accomplice caused a death under circumstances manifesting an extreme indifference to the value of human life. See Ark. Code Ann. § 5-10-101(a)(1). An attempted robbery is established by proof that the defendant purposely engaged in conduct that constituted a substantial step in a course of conduct intended to culminate in the commission of a robbery. Ark. Code Ann. § 5-3-201(a)(2) (Repl. 1997).

In this case, Mr. Ross challenges the sufficiency of the evidence on grounds that the State failed to present substantial evidence that he committed or participated in the robbery. Specifically, he contends that there is no evidence that he ever owned, fired, or handled any of the weapons involved, and there is no evidence to connect him with any stolen property. His sufficiency challenge is without merit.

We have held that the presence of an accused in the proximity of a crime in a manner suggestive of joint participation is a relevant factor in determining an accomplice’s connection to a crime. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). Relevant factors include: (1) the presence of the accused in the proximity of a crime, (2) the opportunity to commit the crime, and (3) an association with a person involved in the crime in a manner suggestive of joint participation. Id. We have also said, where a defendant admitted he had been hiding from the police, that “[e]vidence of flight to avoid arrest may be considered by the jury as corroborative of guilt.” Flowers v. State, 342 Ark. at 51, 25 S.W.3d at 427.

In Stewart, this court concluded there was sufficient evidence to uphold a conviction for aggravated robbery “[g]iven appellant’s knowledge that his associates contemplated a robbery, his admission that he arrived at the rest stop armed and loitered for about thirty minutes, his acknowledgment that he was in the bathroom [at the time the shooting took place], and testimony that appellant . . . fled with the group, and was later seen with a weapon.” 338 Ark. at 616-617, 999 S.W.2d at 689-90. Likewise, the evidence in this case, viewed in the light most favorable to the State, demonstrated that Mr. Ross was present at the scene of the crime, knew that a robbery of the liquor store was planned, and had been “hanging around” with Mr. McFerrin. In addition, there was evidence indicating (1) that he was shot by the victim at close range; (2) that he had a ski mask in his possession; (3) that he or an accomplice shot Mr. Branscum repeatedly; (4) that Mr. Branscum died as a result of multiple gunshot wounds; and (5) that Mr. Ross and his accomplices fled from the crime scene.

As previously set out above, Mr. Ross gave two statements that were not only internally inconsistent with each other, but were also inconsistent with other evidence and testimony offered by the State. It is well-settled that the credibility of witnesses is an issue for the jury and not this court. Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. Bell v. State, 334 Ark. 285, 973 S.W.2d 806. We have also stated that a defendant’s improbable explanations of suspicious circumstances may be admissible as proof of guilt. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993).

There was also evidence that, on at least one and possibly two occasions, Mr. Ross attempted to evade police. The police conducted a search of Mr. Ross’s home on September 7, 1999. No one was in the home at the time of the search, but an officer testified that a videotape of the movie Independence Day was playing when he and another officer entered the home. The officer who was familiar with the movie testified that the movie had not been playing very long, thereby suggesting that someone had been in the home and left quickly when the police arrived. The police visited Mr. Ross’s home a second time on September 26, 1999. On that occasion, an officer found Mr. Ross “hiding” in a bedroom. The officer testified that the lights in the room were off, and he noticed Mr. Ross’s legs “sticking out from a closet.” This evidence of an attempt to avoid detection and arrest could be considered by the jury as corroborative of guilt. Flowers v. State, 342 Ark. 45, 25 S.W.3d 422. Based upon the foregoing, we conclude that the State presented substantial evidence that Mr. Ross participated in an attempted robbery and that, in the course of or in furtherance of the attempted robbery, he or an accomplice killed the victim. Flowers v. State, 342 Ark. 45, 25 S.W.3d 422; Stewart v. State, 338 Ark. 608, 999 S.W.2d 684.

Finally, Mr. Ross asserts that the State failed to prove that a robbery occurred. Specifically, he contends there was no evidence that any property was taken from Mr. Branscum and thus, his capital-murder conviction must fail. Once again, his argument is without merit. A defendant may be convicted of robbery even if no property is actually taken — the emphasis is on the express or implied threat of physical harm to the victim. Harris v. State, 308 Ark. 150, 823 S.W.2d 860 (1992). See Ark. Code Ann. § 5-12-102(a) (Repl. 1997). Moreover, the capital-felony murder statute does not require that an actual robbery take place; rather, an attempt to commit robbery is sufficient. See Ark. Code Ann. § 5-10-101(a)(1). We have already concluded that there was substantial evidence of Mr. Ross’s participation in an attempt to rob Mr. Branscum. In any event, the evidence was undisputed that Mr. Branscum’s gun was taken during the attack, and it was subsequently recovered at an abandoned house identified by Mr. McFerrin. Thus, there was sufficient evidence for the jury to find that a robbery occurred.

II. Arkansas Supreme Court Rule 4-3(h)

The transcript of the record in this case has been reviewed in accordance with our Rule 4-3 (h) which requires, in cases in which there is a sentence to fife imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a). None have been found.

Affirmed.

       According to Mr. Ross’s first statement, he and his girlfriend and his sister were in the car when Mr. McFerrin flagged him down. Later, he claimed they were not in the car.

       In his first statement, Mr. Ross denied having a ski mask in his pants even though one had been found inside his pants while he was a patient at the Osceola hospital.

       Mr. McFerrin was also charged with Mr. Branscum’s murder and tried separately. This court recently affirmed his capital-murder conviction and fife sentence. McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001).


source: Caselaw Access Project

author: Ray Thornton, Justice. Tom Glaze, Justice,

license: Public Domain

text:
    Jay Michael RALEY v. Dr. Charles WAGNER
    00-1224
    57 S.W.3d 683
    Supreme Court of Arkansas
    Opinion delivered October 11, 2001
    [Petition for rehearing denied November 29, 2001.]

      McMath, Vehik, Drummond, Harrison & Ledbetter, EA., by: Phillip H. McMath, for appellant.

      Armstrong Allen, PLLC, by: Ken Cook and Paul Wood, for appellee.
   Ray Thornton, Justice.

On December 8, 1997, appellant, Jay Michael Raley, filed a medical malpractice action against appellee, Dr. Charles Wagner. Appellant, who was born January 16, 1979, was eighteen years old at the time the complaint was filed. Appellant suffers from Hirschsprung Disease, a disease of the colon. In his complaint, appellant alleged that appellee, a pediatric surgeon, had negligently performed a “Soave Pull-Through” procedure on appellant on March 16, 1992. Appellant was thirteen-years-old at the time of the surgery, and the procedure was performed in the course of treatment of appellant’s illness. The complaint also alleged negligence in appellee’s failure to diagnose and treat subsequent complications that resulted from the procedure.

On April 28, 2000, appellee filed a motion for summary judgment. Appellee argued that appellant’s claims were barred by the Medical Malpractice Act’s two-year statute of limitations. On August 16, 2000, the trial court granted appellee’s motion for summary judgment. The trial court further concluded that the Medical Malpractice Act was constitutional. It is from this order that appellant appeals. He raises two points for our consideration. Finding no reversible error, we affirm the trial court.

In his first point on appeal, appellant contends that the trial court erred in granting appellee’s motion for summary judgment. Specifically, appellant argues that his claim was not barred by the Medical Malpractice Act’s two-year statute of limitations. We outlined the applicable law surrounding our review of a granting of summary judgment in Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000). We explained:

The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, this court determines if summary judgment was appropriate, based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties.

Id. (citing Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598) (internal citations omitted).

Remaining mindful of our standard of review for summary-judgment cases, we must determine whether there was a genuine issue of fact in dispute. Specifically, we must determine whether appellant’s claims were barred by the two-year statute of limitations applicable to the Arkansas Medical Malpractice Act. Appellant first argues that pursuant to section four of Act 709 of 1979, codified as Ark. Code Ann § 16-114-203 (1987), his claims were not barred. Arkansas Code Annotated section 16-114-203 (1987) provides:

(a) All actions for medical injury shall be commenced within two (2) years after the cause of action accrues..
(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of, and no other time. However, where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such two-year period, the action may be commenced within one (1) year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier.
(c) A minor under the age of eighteen (18) years at the time of the act, omission, or failure complained of, shall in any event have until his nineteenth birthday in which to commence an action.
(d) Any person who had been adjudicated incompetent at the time of the act, omission, or failure complained of, shall have until one (1) year after that disability is removed in which to commence an action.

Id. Appellee responds by contending that this statute was repealed by Act 997 of 1991. Act 997 provides as follows:

Be it enacted by the General Assembly of the State of Arkansas:
SECTION 1. Ark. Code Ann. § 16-114-203 is amended to read as follows:
“16-114-203. Statute of limitations.
(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.
(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time. However, where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such two-year period, the action may be commenced within one (1) year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier.
(c) Except as otherwise provided in the subsection (d) of this section, if at the time at which the cause of action for medical injuries occurring from obstetrical care shall or with reasonable diligence might have first been known or discovered, the person to whom such claim has accrued shall be nine (9) years of age or younger, then such minor or the person claiming through such minor may notwithstanding that the period of time limited pursuant to subsection (a) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have reached his ninth birthday, or shall have died, whichever shall have first occurred.
(d) If, at the time at which the cause of action for medical injuries occurring from obstetrical care shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be a minor without a parent or legal guardian, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsection (a) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have a parent or legal guardian or shall have died, whichever shall have first occurred; provided, however, that in no event shall the period of limitations begin to run prior to such minor’s ninth birthday unless such minor shall have died.
(e) Any person who had been adjudicated incompetent at the time of the act, omission, or failure complained of, shall have until one (1) year after that disability is removed in which to commence an action.”
SECTION 4. All laws and parts of laws in conflict with this Act are hereby repealed.

Id.

We must determine whether the statute of limitations provisions of Act 709 were repealed and replaced by Act 997 of 1991. A basic rule of statutory construction is to give effect to the intent of the legislature. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id.

In order to determine the intent of the General Assembly, we first review the language of Act 709 in comparison to the language of Act 997. We note that in many respects the Acts are similar. First, section four of Act 709 of 1979 provides an all-inclusive two-year statute of limitations. Specifically, the Act states “all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.” The language in Act 997 of 1991 is somewhat similar to Act 709. However, the General Assembly added an additional phrase in Act 997. Specifically, Act 997 states, “except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.” (emphasis added). Next, Act 709 of 1979 and Act 997 of 1991 each provide an exception to the two-year statute of limitations for the discovery of foreign objects. Then, Act 709 of 1979 and Act 997 of 1991 each provide an exception to the two-year statute of limitations for specified minors. However, the savings statute for all minors with medical malpractice claims allowing the claims to be brought until the minor’s nineteenth birthday, included in Act 709 is not included in Act 997 of 1991. Act 997 replaced that exception with a narrow, specific exception for minors with medical malpractice claims for medical injuries occurring from obstetrical care. Finally, both Act 709 of 1979 and Act 997 of 1991 each provide an exception to the two-year statute of limitations for persons adjudicated incompetent.

Both Act 997 of 1991 and section four of Act 709 of 1979 were complete statements of the statute of limitations applicable to medical injuries. We conclude that by enacting Act 997 of 1991 the General Assembly expressed its intention that the statute of Hmitations provisions found in Act 709 of 1979, codified as Ark. Code Arm. § 16-114-203 (1987), were replaced by Act 997 of 1991’s adoption of a new and complete section of Ark. Code Ann. § 16-114-203. We note that the language in Act 997 which states, “except as otherwise provided in this section, aU actions for medical injury shall be commenced within two (2) years after the cause of action accrues,” clearly demonstrates the legislative intent that Ark. Code Ann. § 16-114-203, as amended and enacted by Act 997, replaces the provisions of Ark. Code Ann. § 16-114-203 (1987) derived from Act 709 of 1979. The General Assembly further expressed its intent to repeal the statute of Hmitations provisions found in Act 709 of 1979 by including within Act 997 of 1991 the foHowing language: “all laws and parts of laws in conflict with this Act are hereby repealed.” Because Act 997 of 1991 repealed the statute of Hmitations provisions set out in Act 709 of 1979, and because appeflant does not have a medical injury arising from obstetrical care, we hold that appeflant was required to bring his claim within two years from the time the cause of action accrued.

Appellant next argues that because he is a minor, the statute of Hmitations appHcable to his action is found at Ark. Code Ann. § 16-56-116 (1987). We have previously addressed this issue. Specifically, in Shelton, supra, we were asked to determine whether the general statute of Hmitations found in Ark. Code Ann. § 16-56-116, or the specific two-year statute of Hmitations found in the Arkansas Medical Malpractice Act, appHed to a minor’s medical malpractice claim. Id. Noting that a general statute must yield when there is a specific statute involving the particular issue, we held that the statute of Hmitations appHcable to a minor in a malpractice case was the specific two-year statute of Hmitations found in the Medical Malpractice Act and not the general savings statute for claims brought by minors found at Ark. Code. Ann. § 16-56-116. Id. Applying our holding in Shelton to the case now before us, we conclude that appellant’s argument must fail.

In his second point on appeal, appellant argues that the two-year statute of limitations found in the Arkansas Medical Malpractice Act is unconstitutional. Specifically, appellant argues that the statute of limitations found in the Arkansas Medical Malpractice Act violates the equal protection and due process clauses of the United States Constitution and the Arkansas Constitution. Appellant argues that there is no rational basis for treating minors with medical injuries differently than minors with other tort injuries. Specifically, he contends that there is no rational basis for applying the two-year statute of limitations set forth in the Medical Malpractice Act to minors with medical malpractice claims and applying the general savings statute to minors with other tort actions.

Appellee responds to appellant’s contention by arguing that there is a rational basis for applying a different statute of limitations to minors with medical malpractice actions. Appellee argues that the General Assembly intended to control health care costs through its enactment of the Arkansas Medical Malpractice Act. Appellee contends that health care costs are controlled by encouraging individuals to bring their medical malpractice claims within two years and that health care costs are further controlled by applying the two-year statute of hmitations to minors with medical malpractice claims. Appellee cites the following language from Act 709 of 1979 as articulating the legislature’s intentions. Act 709 of 1979 states in relevant part:

SECTION 11. Emergency Clause. It is hereby found, determined and declared by the General Assembly that the threat of legal actions for medical injury have resulted in increased rates for malpractice insurance which in turn causes and contributes to an increase in health care costs placing a heavy burden on those who can least afford such increases and that the threat of such actions contributes to expensive medical procedures to be performed by physicians and others which otherwise would not be considered necessary and that this Act should be given effect immediately to help control the spiraling cost of health care. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.

Id.

After reviewing the emergency clause, we hold that there is a rational basis for applying the two-year statute of limitations to minor plaintiffs in medical malpractice actions while allowing minor plaintiffs in other tort actions until their twenty-first birthday to bring forward a claim. We conclude that the rational basis for applying the shorter statute of limitations to the minors with the medical malpractice actions is to control health care cost paid by the people of Arkansas. The trial court found that the Arkansas Medical Malpractice Act is constitutional, and we cannot say that this finding was erroneous. See Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983) (holding that every act carries a strong presumption of constitutionality). Having found no reversible errors, we affirm the trial court.

Affirmed.

Glaze, Corbin, and Imber, JJ., dissent.

Tom Glaze, Justice,

dissenting. Jay Raley was twelve years old on March 16, 1992, the date Dr. Charles Wagner was alleged to have negligently performed Jay’s surgery. Jay suffered from a non-obstetrical disease related to the malfunction of his large bowel. He incurred a later surgery and treatment by other doctors, but it all resulted in an irreparable non-functioning bowel, necessitating a permanent colostomy. Jay was age eighteen years old when he filed a negligence lawsuit against Dr. Wagner in December 1997. The trial court, however, dismissed Jay’s lawsuit as being untimely and barred by the Medical Malpractice Act’s two-year statute of limitations.

Under the Medical Malpractice Act, Section 4 of Act 709 of 1979, actions for medical injury must be commenced within two years after the cause accrues, but a minor under the age of eighteen years at the time of the negligent act has until his nineteenth birthday to commence an action. Under this law, Jay’s action was commenced in time since he was age twelve when Dr. Wagner performed Jay’s surgery, and Jay was only eighteen when he filed suit.

In 1991, the General Assembly, by Act 997, amended § 4 of Act 709 by adding the following relevant language, limiting a minor’s time to bring an action for medical injuries resulting from obstetrical care:

(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within (2) years after the cause of action accrues.
* *
(c) Except as otherwise provided in subsection (d) of this section, if at the time at which the cause of action for medical injuries occurring from obstetrical care shall or with reasonable diligence might have first been known or discovered, the person to whom such claim has accrued shall be nine (9) years of age or younger, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsection (a) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have reached his ninth birthday, or shall have died, whichever shall have first occurred.
(d) If at the time at which the cause of action for medical injuries occurring from obstetrical care shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be a minor without a parent or legal guardian, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsection (a) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have a parent or legal guardian or shall have died, whichever shall have first occurred; provided, however, that in no event shall the period of limitation begin to run prior to such minor’s ninth birthday unless such minor shall have died.

(Emphasis added.)

Clearly, Act 997 was enacted to reduce the time during which minors can bring claims arising from pregnancies and childbirths. Before Act 997, such an obstetrical claim could remain dormant for as long as nineteen years under § 4 of 709; the General Assembly passed Act 997 to reduce this period concerning obstetrical injuries. However, Act 997 makes no mention of non-obstetrical claims of minors. Nor did the General Assembly in that Act specifically repeal the earlier Act 709’s provision, which contains the longer limitation for a minor’s medical malpractice claim, permitting non-obstetrical claims like Jay’s.

In simple terms, the General Assembly, by enacting Act 997, offered no clear language that all children (except those with obstetrical injuries) should be treated as adults. Under the majority opinion, a special class of children, namely those suffering from non-obstetrical injuries must, like adults, bring suit within two years from when they actually sustain an injury. In other words, the majority opinion’s interpretation leads to the absurd result that children with non-obstetrical injuries must be bound by the adult two-year limitation, while children with obstetrical claims have eleven years to file suit. This different classification of children’s claims and when they can bring suit on them makes no sense. Obvious reasons exist to treat children’s medical claims differently from those claims incurred by knowledgeable, experienced adults, but Act 997 does not make children with non-obstetrical or obstetrical injuries on equal footing with adults. If the General Assembly had intended to change Act 709 in order to severely reduce children’s right to sue in this respect, it could have easily done so by specifically repealing the longer limitation period for minors set out and established by Act 709. In fact, our General Assembly did just that in 1995 when it enacted Act 735, which employed language whereby the eleven-year limitation applied to all children’s medical injuries, removing the reference to the word “obstetrical.”. See Arkansas County v. Desha County, 342 Ark. 135, 27 S.W.3d 379 (2000) (as further evidence of the legislature’s intent, the supreme court may also consider subsequent amendments to statutes).

Our law is settled that repeals by implication are not favored in interpreting our statutes. Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000), See Nance v. Williams, 263 Ark. 237, 564 S.W.2d 212 (1978) (when a later act covers the entire matter of an earlier one, adding new provisions and plainly showing it was intended as a substitute for the first one, then the older act is repealed by implication). Stated another way, if the General Assembly intended to repeal § 4 of 709, it could have passed a law plainly showing it was intended as a substitute for that law, but instead, Act 997 in plain terms dealt only with obstetrical injuries, and not all injuries sustained by children.

In sum, the only change intended by Act 997 was to reduce the limitation period for children’s obstetrical injuries. Again, absolutely no mention is made to reduce children’s injuries that are non-obstetrical, and the majority opinion stretches its interpretation of Act 997 to hold otherwise.

One last significant point needs mentioning. While I thoroughly disagree with the majority opinion, Act 997, at the very least, may be said to lend itself to more than one interpretation. That being so, this court has long-established precedent, stating that doubt as to which of two or more statutes of limitations applies to a particular action or proceeding will be generally resolved in favor of the application of the statute containing the longest limitation. Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968). The majority court ignores this settled law in adopting the harsh, restrictive interpretation of Act 997 to deny Jay’s non-obstetrical claim. The majority opinion is wrong.

CORBIN and Imber, JJ., join this dissent.

       We note that appellant makes reference to Article 2, Section 13, of the Arkansas Constitution in his brief. This section is known as the “open courts” provision of the Arkansas Constitution. This provision provides that all persons are entitled to a certain remedy in the law and ought to be able to obtain justice freely. Id. Although appellant raised this constitutional provision in his brief, he failed to develop an argument involving this provision. Additionally, this argument was not frilly raised or developed below. We have held that when a party cites no authority or convincing argument on an issue, and the result is not apparent without further research, the appellate court will not address the issue. Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000). Because appellant has failed to provide this court with a convincing argument on this issue, we will not address this argument on appeal.

       We note that appellant also argues that the Medical Malpractice Act is unconstitutional because it treats minors with medical malpractice claims differently than minors with obstetrical care medical malpractice claims. Because this argument was not raised below, we will not address it for the first time on appeal. See Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001) (holding that appellant was procedurally barred from raising an argument on appeal because it was not raised below).

       The full text reads as follows:
      (a) All actions for medical injury shall be commenced within two years after the cause of action accrues.
      (b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time. However, where the action is based upon the discovery of a foreign body in the body of an injured person which is not discovered and could not reasonably have been discovered within such two-year period, the action may be commenced within one (1) year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier.
      (c) A minor under the age of eighteen (18) years at the time of the act, omission, or failure complained of, shall in any event have until his nineteenth birthday in which to commence an action.

       The majority opinion relies on Shelton in holding that the specific two-year statute of limitations found in the Arkansas Medical Malpractice Act applies to a minor’s medical malpractice claim, rather than the general savings statute found in Ark. Code Ann. § 16-56-116. However, in finding the general savings statute did not apply to the appellant in Shelton, this court did not take the opportunity to interpret the applicability of Act 997 to non-obstetrical cases; nor did it address the issue of whether Act 997 repealed the earlier Act 709. Instead, this court applied Act 735 of 1995, the latest version of the minor savings statute in the Medical Malpractice Act to an injury that occurred in 1994, presumably when the applicable statute of limitations would have been under Act 997 of 1991 — the Act in question in the present case.


author: Jim Hannah, Justice. Annabelle Clinton Imber, Justice, concurring.

text:
    Bob E. FEWELL and Holdingsco, Inc. v. Mike PICKENS, Insurance Commissioner, American Investors Life Insurance Co., Arkansas Life & Disability Insurance Guaranty Association
    01-339
    57 S.W.3d 144
    Supreme Court of Arkansas
    Opinion delivered October 11, 2001

      Perroni & James Law Firm, by: Samuel A. Perroni and Patrick R. James, for appellants.

      Friday, Eldredge & Clark, by: William A. Waddell, Jr., for appellee.
   Jim Hannah, Justice.

Appellants Bob E. Fewell and Holdingsco, Inc., appeal from the Pulaski County Circuit Court’s order liquidating American Investors Life Insurance Company (American Investors) as part of the ongoing receivership action previously addressed in a prior appeal by these parties. See Fewell v. Pickens, 344 Ark. 368, 39 S.W.3d 447 (2001) (“Fewell I). In the prior appeal, Fewell and Holdingsco appealed the Pulaski County Circuit Court’s orders appointing a receiver for American Investors, enjoining the appellants from transacting business for the company, denying their motion to vacate the order appointing the receiver, granting an injunction, and denying their motion to strike an affidavit of service. The appellee is Mike Pickens, who is the Arkansas Insurance Commissioner and appointed receiver.

A summary of facts leading to the first appeal in this matter is contained in our prior opinion and will not be restated here. However, the facts leading to this present appeal occurred during the pendency of that appeal, and they are summarized herein. On January 26, 2001, the Insurance Commissioner filed an Application for Order to Show Cause and for Order of Liquidation. The trial court scheduled a hearing on this motion for February 23, 2001.

On February 5, 2001, Fewell and Holdingsco filed a motion to dismiss, strike, or stay the Commissioner’s application for a show-cause order and order of liquidation arguing that such an application was an “admission” that the original receivership was improper and that this was an attempt to transfer the burden of proof from the Insurance Department to American Investors and the appellants. Fewell and Holdingsco also argued that the show-cause proceedings should be stayed pending the appeal of the appointment of the receiver. Fewell and Holdingsco requested in a separate document filed February 7, 2001, that the trial court postpone the scheduled hearing on Feburary 23, 2001, so that discovery could be completed.

In addition to the pleadings filed in circuit court, Fewell and Holdingsco petitioned the Arkansas Supreme Court for a Writ of Prohibition to prohibit the trial court from proceeding on the application, and this court denied the writ on February 15, 2001, after oral arguments. Fewell and Holdingsco then sought a stay in the trial court, and the trial court denied the stay. Upon this denial by the trial court, Fewell and Holdingsco renewed their Petition for Writ of Prohibition, and this court again denied the petition without prejudice on February 22, 2001, and indicated that the issue of the trial court’s jurisdiction to hear the matter of liquidation could be raised again on appeal.

The trial court held the hearing on February 23, 2001, at which the Commissioner presented evidence for ids petition for liquidation. Following the hearing, the trial court entered its Order of Liquidation requiring the appointed receiver to liquidate American Investors and to prohibit Fewell, Holdingsco, and American Investors from doing anything to diminish the value of American Investors or any of its holdings and assets. Fewell and Holdingsco filed a notice of appeal on March 5, 2001.

On April 5, 2001, this court issued its opinion regarding the legality of the trial court’s appointment of a receiver and initiation of delinquency proceedings in August 2000. See Fewell I. In the opinion, this court specifically found, among other things, that Fewell and Holdingsco bargained away their ability to challenge the Commissioner’s initiation of delinquency proceedings and claim for receivership in the 1999 Agreements detailed in our prior opinion. This court found that Fewell and Holdingsco waived the statutory requirements under Ark. Code Ann. § 23-68-104 (Repl. 1994), for an Order to Show Cause and Petition for Receivership. The Court further found that the Arkansas Uniform Insurers Liquidation Act, Ark. Code Ann. §§ 23-68-101 — 23-68-132 (Repl. 1994, Supp. 1999) (Uniform Act), is a special statutory proceeding that usurps the Rules of Civil Procedure, thus allowing the trial court to conduct the proceedings outside the constraints of those rules.

I. Application of Ark. Code Ann. $ 23-68-104

In their first argument on appeal, Fewell and Holdingsco argue that the trial court erred in failing to follow the statutory procedures in Ark. Code Ann. § 23-68-104 requiring the Commissioner to apply for an order to show cause and the trial court to conduct a “full hearing” on that application. The Commissioner argues that Ark. Code Ann. § 23-68-104 does not apply and that Fewell and Holdingsco did not show that failure of the trial court to proceed under that provision was error.

We do not reach this issue because our prior opinion holds that Fewell and Holdingsco waived their right to a show-cause order and a hearing under the 1999 Agreements. In our opinion issued on April 5, 2001, we stated that:

In light of the language contained in the 1999 Agreements between the parties, we conclude that the statutory requirements of § 23-68-104 do not control in this case. It is true that § 23-68-104 contemplates the commissioner’s petition for an order to show cause and a full hearing before granting that petition. But Fewell and Holdingsco waived those statutory requirements under the Uniform Act by consenting to an immediate receivership in the event of breach without prior notice. The standard definition of waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he will forever be deprived of its benefits. Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999) (citing Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978)); Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993). Fewell and Holdingsco clearly agreed in 1999 to waiver of their statutory rights under § 23-68-104, if Pickens would forebear placing them into receivership at that time.
The circuit court found that the appellants had consented to the entry of an order of receivership without prior notice. We agree with the court’s finding and hold that Fewell and Holdingsco waived their rights under § 23-68-104 by executing the 1999 Agreements. We hold, in addition, that the immediate entry of a receivership order on July 11, 2000, with the permanent injunction, albeit entered ex parte, did not violate due process protections. We further note that on August 4, 2000, the appellants did have the opportunity to be heard on the circuit judge’s order. Indeed, at that time they made their argument to the judge concerning the alleged lack of a 1999 True Up Calculation and moved that the July 11, 2000 order be set aside. This request was denied. The August 4, 2000 hearing, in our view, provided the appellants with an opportunity to be heard on the legitimacy of the receivership order.

Fewell I, 344 Ark. at 380. Clearly, we held that Fewell and Holdingsco waived their right to a show-cause order and hearing under the 1999 Agreements. Those Agreements contained this language;

However, upon breach of any one of the aforesaid covenants, the Company, the Parent and Fewell hereby agree and consent to the immediate commencement and entry of an order granting receivership against the Company by the Department under Ark. Code Ann. § 23-68-101 through § 23-68-132 and waive prior notice of entry of an order of permanent receivership.

Such a waiver extends to this case because we hold that Ark. Code Ann. § 23-68-104 only applies to the “commencement” of delinquency proceedings, which necessarily means that it applies to the initiation by the Commissioner of the proceedings to place an insurance company into receivership. The statute at issue, Ark. Code Ann. § 23-68-104, states:

Commencement of delinquency proceedings.
The commissioner shall commence any such proceedings by application to the court for an order directing the insurer to show cause why the commissioner should not have the relief prayed for. On the return of such order to show cause, and after a full hearing, the court shall either deny the application or grant the application, together with such other relief as the nature of the case and the interests of the policyholders, creditors, stockholders, members, subscribers, or the public may require.

The term “delinquency proceeding” is defined in Ark. Code Ann. § 23-68-102(3) as:

(3) “Delinquency proceeding” means any proceeding commenced against an insurer pursuant to this chapter for the purpose of liquidating, rehabilitating, reorganizing, or conserving such insurer.

These statutory sections indicate that the initial filing of delinquency proceedings by the Commissioner must involve an application for an order to show cause and a full hearing on that initial application to institute delinquency proceedings. However, subsequent proceedings, which are not “commencement” proceedings, do not fall under the requirements of Ark. Code Ann. § 23-68-104.

The Uniform Act supports a finding that the trial court is not required to enter a show-cause order and hold a “full hearing” after the “commencement” of the action. In Ark. Code Ann. § 23-68-107, the statute provides for a procedure allowing the Commissioner to apply for liquidation. The statute states:

23-68-107. Grounds for liquidation.
The commissioner may apply to the court for an order appointing him as receiver, if his appointment as receiver shall not be then in effect, and directing him to liquidate the business of a domestic insurer or of the United States branch of an alien insurer having trusted assets in this state, regardless of whether or not there has been a prior order directing him to rehabilitate such insurer, upon any of the grounds specified in 23-68-106, or if the insurer:
(1) Has ceased transacting business for a period of one (1) year; or
(2) Is an insolvent insurer and has commenced voluntary liquidation or dissolution or attempts to commence or prosecute any action or proceeding to liquidate its business or affairs or to dissolve its corporate charter or to procure the appointment of a receiver, trustee, custodian, or sequestrator under any law except this code.

This statute obviously does not provide for a hearing upon the application by the Commissioner for an order to liquidate. Instead, it merely requires, at the least, an application by the Commissioner indicating that one of these two provisions or any of the grounds in Ark. Code Ann. § 23-68-106 have been met.

This court reviews issues of statutory construction de novo, as it is for this court to decide what a statute means. Stephens v. Arkansas School for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute must be construed so that no word is left void or superfluous and in such a way that meaning and effect is given to every word therein, if possible. Id. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Id. Where the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id. (citing State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994)). Statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The basic rule of statutory construction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999).

In reading the statutory scheme as a whole, and taking into consideration the fact that Fewell and Holdingsco waived their right to a show-cause order and hearing under Ark. Code Ann. § 23-68-104, we hold that the trial court did not err in failing to issue the show-cause order before holding the February 23, 2001, hearing. We hold, in addition, that it is not necessary to address Fewell’s and Holdingsco’s argument that the Commissioner is judicially estopped from proceeding with the order of liquidation because of misrepresentations made by its attorney. We also hold that the February 23, 2001, hearing did not violate due process requirements because a hearing was held even where the statutory scheme does not provide for one. Fewell and Holdingsco were provided an opportunity to be heard and due process was not violated.

II. Discovery

Fewell and Holdingsco next argue that the trial court erred in denying them the opportunity to conduct discovery and investigate the issues before the court. They argue that the court did not postpone the hearing at their request and that the Commissioner failed to comply with the outstanding discovery requests, thus hampering their ability to present a proper challenge at the hearing on February 23, 2001.

Again, we rely on our first opinion and hold that the Arkansas Rules of Civil Procedure, which contain guidelines and rules for the discovery process, do not apply in receivership proceedings. We specifically stated in Feivell I that “the Uniform Act establishes a special statutory proceeding for receivership matters and associated injunctions and, as a consequence, the proceedings involved in this matter which are fixed by statute are not controlled by the Arkansas Rules of Civil Procedure. See Ark.R.Civ.P. 81(a).” Fewell I, 344 Ark. at 379.

Pursuant to such a ruling in Fewell I, we need only review the trial court’s refusal to allow full discovery for an abuse of discretion. This court has long held that the trial court has wide discretion in matters pertaining to discovery and that a trial court’s decision will not be reversed absent an abuse of discretion. Parker v. Southern Farm Bureau Ins. Co., 326 Ark. 1073, 935 S.W.2d 556 (1996); Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992) (citing Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W.2d 607 (1978)); Hanna v. Johnson, 233 Ark. 409, 344 S.W.2d 846 (1961). Although this court recognizes the magnitude of the trial court’s discretion in discovery matters, it has found an abuse of discretion where there has been an undue limitation of substantial rights of the appellant under the prevailing circumstances. Rickett v. Hayes, 251 Ark. 395, 473 S.W.2d 446 (1971). The goal of discovery is to permit a litigant to obtain whatever information he may need to prepare adequately for issues that may develop without imposing an onerous burden on his adversary. Id.

Again, discovery here is controlled by the Uniform Act, and liquidation proceedings are specifically controlled under Ark. Code Ann. § 23-68-107. The Uniform Act as a whole and specifically Ark. Code Ann. § 23-68-107 do not require the trial court to hold a hearing in liquidation proceedings, much less require any form of discovery prior to the court’s decision. The parties did not raise the constitutionality of the statutes, and that issue is not preserved on appeal. As such, because the Uniform Act does not require any particular form of discovery or hearings, and the trial court allowed discovery and a hearing, we cannot say that the trial court abused its discretion in limiting the scope and timing of discovery in this case.

III. Subject-matter Jurisdiction

In their final point on appeal, Fewell and Holdingsco argue that the trial court did not have subject-matter jurisdiction to hear and decide the Commissioner’s petition for order of liquidation because the case was on appeal to this court on the issue of the validity of the appointment of the receiver. The Commissioner argues that the trial court did have jurisdiction to hear the liquidation issue because it is a collateral matter not on appeal.

As an initial consideration, it should be noted that when this court denied the appellants’s motion for writ of prohibition on February 22, 2001, it did so without prejudice to allow them to raise the issue of subject-matter jurisdiction on appeal. On the merits, it appears that the General Assembly anticipated that various orders would be appealed without affecting the jurisdiction of the trial court, as noted in Ark. Code Ann. § 23-68-103(d), which states:

(d) An appeal shall lie to the Supreme Court from an order granting or refusing rehabilitation, liquidation, or conservation, and from every other order in delinquency proceedings having the character of a final order as to the particular portion of the proceedings embraced therein.

(Emphasis added.) In looking at this provision, we believe that the General Assembly anticipated that appeals would arise piecemeal from orders issued by the trial court. As such, we find that the matters here were collateral and that the trial court retained jurisdiction to hear the liquidation petition while the appeal in Fewell I was pending here.

Divestiture of jurisdiction in the trial court only occurs when the issue on appeal directly relates to the matter under review by the appellate court. We noted in Vanderpool v. Fidelity & Cas. & Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997), that:

The rule that an appeal divests the trial court of jurisdiction applies only to matters necessarily or directly involved in the matter under review. It does not stay further proceedings with respect to rights not passed on or affected by the judgment or decree from which the appeal is taken. Matters which are independent of, or collateral or supplemental, are left within the jurisdiction and control of the trial court.

Id., 327 Ark. at 412 (quoting Sherman v. State, 326 Ark. 153, 158, 931 S.W.2d 417, 421 (quoting Bleidt v. 555, Inc., 253 Ark. 348, 350-51, 485 S.W.2d 721, 723 (1972) (per curiam)); see also Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995).

First, it should be noted that while Fewell and Holdingsco argue here that the issues in the liquidation proceeding dealing with the change of the focus of that proceeding (from rehabilitation to liquidation) are the same issues that were on appeal, a review of our previous appeal indicates that the interveners were not litigating the rehabilitation issue, but rather the issue of the appointment of the receiver and the entry of the injunction. This court summarized their arguments in the prior appeal as:

The appellants in this case, Bob E. Fewell and Holdingsco, Inc., appeal from an order by the Pulaski County Circuit Court appointing a receiver for American Investors Life Insurance Company (American Investors) and enjoining the appellants from transacting business for the company. They further appeal from an order denying their motion to vacate the appointment of the receiver and the injunction and from an order denying their motion to strike an affidavit of service.

Fewell I, 377 Ark. at 371.

In addition, we agree with the Commissioner’s argument that these proceedings are similar and analogous to bankruptcy proceedings. In bankruptcy proceedings, for example, the federal bankruptcy court retains jurisdiction over collateral matters of the bankruptcy pending appeals on piecemeal issues and orders dealing with the details of the bankruptcy. See In Re Strawberry Square Associates, 152 B.R. 699 (Bankr. E.D.N.Y. 1993). This situation, like a bankruptcy situation, involves not only the business or person directly affected by the divestment of control over personal or business matters, but it also affects creditors and claimants who depend on the viability of the company or person in order to be paid. In fact, in this particular type of liquidation proceeding involving an insurance company, perhaps the necessity of allowing the trial court to proceed with collateral issues is particularly important where claimants are waiting for bills to be paid. If an appellant is permitted to stall the proceedings by receiving a stay on appeal for each separate order, years could pass before claimants are paid and, during that time, the assets of the company could be depleted either by payment of costs of the operation of the business or other matters adversely affecting the financial aspects of the business.

Certainly, any “interlocutory” appeal is going to relate to the entire pending receivership and liquidation — however, the question should be whether allowing the trial court to go forward with the liquidation proceeding, for example, affects the pending appeal of the challenge to the appointment of the receiver. We determine that it does not after reviewing the evidence in this case.

Affirmed.

Glaze and Imber, JJ., concur.

Annabelle Clinton Imber, Justice, concurring.

I concur in the result reached by the majority, but I write separately to point out that the first argument on appeal can be decided without resorting to statutory interpretation. The majority’s interpretation of Ark. Code Ann. § 23-68-104 (Repl. 1994) is simply unnecessary because Fewell and Floldingsco waived their rights under the statute when they entered into the 1999 Agreements with the Commissioner.

The majority takes notice of these Agreements and properly concludes that the waiver found in those agreements “extends to this case.” However, the majority fails to recognize the full extent of that waiver. The Agreements provided in pertinent part as follows:

However, upon breach of any one of the aforesaid covenants, the Company, the Parent and Fewell hereby agree and consent to the immediate commencement and entry of an order granting receivership against the Company by the Department under Ark. Code Ann. 23-68-101 through 23-68-132 and waive prior notice of entry of an order of permanent receivership.

(Emphasis added.) The consent to a permanent receivership by Fewell and Holdingsco was tantamount to an agreement that the Commissioner had the authority to be appointed receiver without notice or hearing, see Fewell v. Pickens, 344 Ark. 368, 39 S.W.3d 447 (2001)(“Fewell I"), and more significantly, they agreed that the receiver had all of the tools of the Uniform Insurers Liquidation Act at his disposal.

By executing the 1999 Agreements, Fewell and Holdingsco agreed to “an order granting receivership . . . under Ark. Code Ann. § 23-68-101 through § 23-68-132.” Section 23-68-102, entitled “Definitions,” provides that “ ‘Receiver’ means receiver, liquidator, rehabilitator, or conservator as the context may require.” Ark. Code Ann. § 23-68-102 (Repl. 1994, Supp. 1999). Thus, as we stated in Fewell I, Fewell and Holdingsco waived their rights under § 23-68-104 and consented to the immediate entry if a receivership order for liquidation as well as rehabilitation. It is therefore clear that our decision on the first point on appeal should begin and end with the waiver contained in the 1999 Agreements.

Glaze, J., joins in this concurrence.


author: Jim Hannah, Justice.

text:
    WAL-MART STORES, INC. v. Earnestine TAYLOR
    00-220
    57 S.W.3d 158
    Supreme Court of Arkansas
    Opinion delivered October 11, 2001
    [Petition for rehearing denied November 29, 2001.]

      Butler, Hicky, Long & Harris, by: Phil Hicky, for appellant.

      Roy C. “Bill” Lewellen, for appellee.

       Glaze, Corbin, and Imber, JJ., would grant.

   Jim Hannah, Justice.

Wal-Mart Stores, Inc. (Wal-Mart), appeals an order reinstating Earnestine Taylor’s lawsuit. Taylor’s lawsuit was dismissed in error by the circuit court for failure to prosecute under Ark. R. Civ. P. 41. There was no failure to prosecute at the time the lawsuit was dismissed. The case was set to be tried within a few weeks. This was the second dismissal of this action, and pursuant to Ark. R. Civ. P. 41(b), it operates as an adjudication on the merits. Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 984 S.W.2d 812 (1999).

Taylor waited seventeen months after the dismissal before filing her motion to reinstate her case. Because this involves relief from a judgment or order issued in 1999, the 1999 version of Ark. R. Civ. P. 60 applies. The error at issue is a judicial error in entering the order of dismissal. The error is not a clerical error, and, therefore, there is no relief “any time” under Rule 60(a). This is an error that comes under then existing Rule 60(b), as a motion seeking relief from an order entered in error. The relief sought is modification of an order or judgment to prevent a miscarriage of justice, and, as such, it had to be filed within ninety days of the dismissal. This was not done. The trial court had no jurisdiction to entertain the motion to reinstate the case. Therefore, this case is reversed and dismissed.

Facts

On January 16, 1989, Earnestine Taylor was shopping at Wal-Mart. She alleges she was knocked into a display and injured by a Wal-Mart employee who was in pursuit of a shoplifter. Taylor filed a lawsuit in St. Francis County in 1991, which was CIV91-75. This case was assigned to Judge Harvey Yates. During trial on June 4, 1996, Taylor sought and received a dismissal without prejudice. On November 21, 1996, Taylor re-filed her lawsuit in St. Francis County, which was CIV96-358. This time the case was assigned to Judge L.T. Simes, II.

The parties were prosecuting the action under CIV96-358 in Judge Simes’s court when the St. Francis Clerk’s office generated a notice in CIV91-75 that under Ark. R. Civ. P. 41(b) there had been no action in the last twelve months. This notice was in error because CIV91-75 had been non-suited. Nonetheless, the notice in CIV91-75 was sent by the clerk’s office to Judge Yates on November 25, 1997. As a consequence of that, Judge Yates issued an order to show cause why CIV91-75 should not be dismissed. On December 3, 1997, Judge Yates entered an order vacating his November 25, 1997, dismissal of CIV91-75. It appears that shortly thereafter, the St. Francis Clerk’s office sent an identical notice under Ark. R. Civ. P. 41(b), again to Judge Yates, but this notice was on CIV96358. On December 17, 1997, an order to show cause why CIV96358 should not be dismissed was entered. The notice gave the plaintiff ten days to show why the case should not be dismissed under Rule 41 (b) due to inactivity for the past twelve months. The notice from the clerk’s office on CIV96-358 was in error because the case was set to be tried within a few weeks.

Nothing was done in the ten days, and CIV96-358 was dismissed. Correspondence in the case shows counsel was aware of the dismissal. No motion to vacate was filed within ninety days. A motion was not filed until June 4, 1999, about seventeen months after the dismissal. The trial court, however, granted the motion to reinstate the case and the order dismissing it was vacated. Wal-Mart now appeals that decision.

Appealable Order

The order vacating the order of dismissal is an appealable order. This was the second dismissal of this cause of action, and pursuant to Ark. R. Civ. P. 41(b), it operates as an adjudication on the merits. Mullinax, supra. The final judgment was vacated more than ninety days after it was entered, and, therefore, the order is appealable because it determines the outcome in the equivalent of an independent action setting aside the judgment. Lamb v. JFM, Inc., 311 Ark. 89, 842 S.W.2d 10 (1992).

Flagrantly Deficient Abstract

Taylor argues that the abstract is flagrantly deficient because it does not contain the affidavit of Stacy White, Judge Yates’s case coordinator. This court will affirm based on a flagrantly deficient abstract. Greene v. Pack, 343 Ark. 97, 32 S.W.3d 482 (2000). White’s affidavit does not appear in the record. Apparently, White’s affidavit was not introduced. This case was sent back for the record to be supplemented at the request of Taylor, and White’s affidavit was not included in the supplemented record. Therefore, it could not appear in the abstract. There is no merit to this issue.

Rule 60

We note at the outset that Rule 60 was modified in 2000 to reflect this court’s holding in Lord v. Manzzanti, 339 Ark. 25, 2 S.W.2d 76 (1999), wherein this court found that “clerical mistakes” under then existing subdivision (a) .could be corrected at any time, overruling any contrary language in Ross v. Southern Farm Bureau Cas. Ins. Co., 333 Ark. 227, 968 S.W.2d 622 (1998). In 2000, discussion of “clerical errors” was moved from paragraph (a) to paragraph (b). The discussion of vacation or modification of judgments and orders to prevent the miscarriage of justice was moved from paragraph (b) to paragraph (a).

In the case before us, Taylor did not attempt to vacate the order of dismissal until seventeen months had passed. This is significant because if the error is not clerical, but rather an error by the court, then the trial court was without jurisdiction to entertain the motion and enter the order reinstating the case in 1999. The first issue we must decide then is whether the error was a clerical error or misprision. In Manzzanti, supra, this court held that under then-existing Ark. R. Civ. P. 60(a), a clerical error could be corrected at any time, even after ninety days have passed. It does not appear the error in this case was a clerical error or misprision.

This court in Ross, supra, discussed a somewhat similar problem to the one we now face. In Ross, some claims, but not all, were settled. However, an order was entered dismissing all claims with prejudice. Then, as in this case, more than ninety days passed before the court entered a corrected order. In Ross, this court found that the ninety-day rule applied. The case was reversed. This court in Manzzanti clarified Ross, stating that the error in Ross was nonclerical, and, therefore, one that was subject to the ninety-day limitation.

Thus, where an order is entered by the court in error, it is not a clerical error. In the case before us, an order was entered by the court in error. The law is clear that not only must an order modifying a judgment be entered within ninety days of the original order, but the trial court loses the authority to modify an original order under Ark. R. Civ. P. 60 after the expiration of ninety days from the entry of that first order. Griggs v. Cook, 315 Ark. 74, 864 S.W.2d 832 (1993); Ware v. Gardner, 309 Ark. 148, 827 S.W.2d 657 (1992); City of Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989); Diebold v. Myers Gen. Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987).

Ware is also on point. Therein, the court considered the question of whether a trial court could vacate an order dismissing an action for failure to prosecute more than ninety days after the order of dismissal. This court held that a trial court could not vacate an order dismissing under Rule 41 after more than ninety days. The same holds true in the case before us. The order at issue was entered without question more than ninety days after the dismissal. There was no power in the circuit judge to act at this belated time. The order reinstating the case, therefore, was void.

Taylor failed to move to vacate the judgment within ninety days, and the court was without jurisdiction to entertain the motion.

Reversed and dismissed.

Corbin, J., not participating.


author: Per Curiam.

text:
    Kevin BRASEL v. STATE of Arkansas
    CR 01-1014
    57 S.W.3d 691
    Supreme Court of Arkansas
    Opinion delivered October 11, 2001

      Dale W. Finley, for appellant.
    No response.
   Per Curiam.

Appellant Kevin Brasel, by and through his attorney, has filed a motion for rule on clerk. His attorney, Dale W Finley, states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an 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:
    Kedron JOHNSON v. STATE of Arkansas
    CR 01-1015
    57 S.W.3d 162
    Supreme Court of Arkansas
    Opinion delivered October 11, 2001

      James Law Firm, by: Clay T. Buchanan, for appellant.
    No response.
   Per Curiam.

Appellant Kedron Johnson, by and through his has filed a motion for rule on the clerk. The motion reflects that the record on appeal was due to be filed on September 14, 2001. The record was tendered with this court’s clerk on September 18, 2001. Appellant’s attorney, Clay T. Buchanan, admits in his motion that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam) (citing Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986)(per curiam)).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979)(per curiam).


text:
    Terrance ROBINSON and Tamagum Antonio Robinson v. STATE of Arkansas
    CR 01-351
    57 S.W.3d 162
    Supreme Court of Arkansas
    Opinion delivered October 11, 2001

      Bill Lewellen, for appellant.
    No response.
   Per Curiam.

The appellants, Terrance and Tamagum Antonio Robinson, advise this court that the original record and exhibits cannot be located. They move this court to permit a copy of the trial transcript to be substituted for the original.

Because this is a criminal case, we direct the Supreme Court Clerk to accept the substituted copy of the trial transcript as of the time when all of the attorneys of record certify to the Clerk, by affidavit, that the copy of the trial transcript is true, accurate, and complete. Cf. Mitchell v. State, 345 Ark. 359, 45 S.W.3d 846 (2001) (per curiam). We further direct that all attorneys of record reconstruct the record, including trial exhibits if necessary in accordance with our Appellate Rules, and certify in the same affidavit that the record is full, accurate, and complete. See Ark. R. App. P. — Civ. 6(d); Ark. R. App. P. — Crim. 4(a). Should all of the attorneys of record not make this certification by affidavit, the substituted record will not be accepted.


author: Per Curiam. Robert L. Brown, Justice,

text:
    Samuel Warren TARRY v. STATE of Arkansas
    CR 01-1022
    57 S.W.3d 163
    Supreme Court of Arkansas
    Opinion delivered October 11, 2001

      Craig Lambert, for appellant.
    No response.
   Per Curiam.

The Arkansas County Circuit Court denied appellant’s Rule 37 motion on May 21, 2001, and appellant filed his notice of appeal on June 19, 2001. The transcript was tendered to the clerk’s office on September 18, 2001, or one day after the ninety-day time limit had lapsed.

Appellant filed a motion for rule on the clerk to compel the clerk’s office to accept the transcript. In the motion, it is contended that the circuit clerk misled appellant’s attorney, Craig Lambert, into believing that September 18, 2001, was the deadline for filing the transcript. Mr. Lambert states that he faxed the notice of appeal to the circuit clerk on June 19, 2001. Mr. Lambert states that he also mailed the notice of appeal to the circuit clerk and included a stamped, self-addressed envelope for the circuit clerk to use to return the file-marked copies of the pleadings back to him. Mr. Lambert stated that he did both because he was not certain that the notice of appeal that he placed in the mail would be received and file-marked by the circuit clerk by June 20, 2001, which was the thirty-day deadline for filing the notice of appeal.

The circuit clerk sent a copy of the fax of the notice of appeal bearing a file-marked date of June 19, 2001, to the prosecuting attorney, the circuit judge, the circuit judge’s case coordinator, and the court reporter, but sent only a copy of the mailed notice of appeal bearing a file-marked date of June 20, 2001, to Mr. Lambert. The faxed copy of the notice of appeal that was filed-marked with a date of June 19, 2001, was not sent to Mr. Lambert. Mr. Lambert argues that because the circuit clerk failed to place a copy of the faxed pleading bearing a date of June 19, 2001 in the envelope along with a copy of the mailed pleading bearing a date of June 20, 2001, the circuit clerk misled him into believing that the ninety-day time limit began to run on June 20, 2001.

We have repeatedly held that all litigants, including those who proceed pro se, must bear responsibility for conforming to the rules of procedure or demonstrate good cause for not doing so. Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990) (citing Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986)). Additionally, we have held that we will grant a motion for rule on the clerk when the attorney admits the record was not timely filed due to an error on his part. See, e.g., Guss v. State, 325 Ark. 521, 928 S.W.2d 336 (1996).

Here, Mr. Lambert does not admit fault on his part, but instead places blame on the circuit clerk’s office and contends that there is “good cause” for us to grant a belated appeal in this case. As authority for his argument, Mr. Lambert relies on our decision in Chiasson v. State, 304 Ark. 110, 798 S.W.2d 927 (1990), where we granted a belated appeal from the denial of a Rule 37 petition where the circuit clerk failed to prompdy provide the Rule 37 petitioner with a copy of the circuit court’s order denying relief. Id. We disagree with the interpretation and application of Chiasson, supra, to the facts of the case before us.

We note that the present case involves the circuit clerk’s failure to provide Mr. Lambert with the faxed copy of the notice of appeal, whereas Chiasson, supra, involved the circuit clerk’s failure to provide counsel with a copy of the circuit court’s order denying relief. We based our decision in Chiasson, supra, on Ark. R. Crim. P. 37.3(d), which imposes a mandatory duty upon the circuit clerk to promptly mail a copy of an order rendered on a petition filed under the rule to the petitioner. Ark. R. Crim. P. 37.3(d) provides:

(d) When an order is rendered on a petition filed under this rule, the circuit court shall promptly mail a copy of the order to the petitioner.

Id. Rule 37.3(d) does not impose a similar duty upon the circuit clerk regarding notices of appeal. Moreover, we have held that a statement that it was someone else’s fault, or no one’s fault, will not suffice. Whitney v. State, 334 Ark. 241, 973 S.W.2d 481 (1998) (citing Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986) (per curiam)); see also Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). Because Mr. Lambert fails to accept responsibility for not filing the transcript within the required time, appellant’s motion must be denied.

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

Corbin, Brown, and Hannah, JJ„ dissent.

Robert L. Brown, Justice,

dissenting. I would grant the motion for rule on the clerk because the circuit clerk’s-office was part of the reason for the delayed filing. See Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995) (Brown, J., dissenting). I am authorized to say that Justices CORBIN and HANNAH join in this dissent.


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

text:
    William R. VOWELL, Individually and as President and Officer of Finally Communities, Inc., Finally Computer Corporation, Inc., and Finally Properties, Inc. v. FAIRFIELD BAY COMMUNITY CLUB, INC.
    00-1343
    58 S.W.3d 324
    Supreme Court of Arkansas
    Opinion delivered October 18, 2001

      Barber, McCaskill, Jones & Hale, P.A., by: R. Kenny McCulloch and Cynthia J. Worthing, for appellants.

      Morgan & Tester, P.A., by: M. Edward Morgan; and Gordon, Caruth & Virden, P.L.C., by: Ben Caruth, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellant, William R. Vowell, individually and as president and officer of Finally Communities, Inc., Finally Computer Corporation, Inc., and Finally Properties, Inc., brings the instant appeal challenging an order of the Van Burén County Chancery Court: (1) granting an injunction in favor of appellee, Fairfield Bay Community Club, Inc., and restraining Vowell from taking any action directly or indirectly interfering with the Club’s contractual relationship with its members; (2) requiring appellant to pay the Club $807,066.00 in damages sustained by the Club for lost or expected revenues; (3) “reforming” forty-nine deeds to lots formerly owned by Club members, sold to Vowell, and then unilaterally deeded back to the Club by Vowell; and (4) requiring Vowell to accept the deeds and to comply with the terms of any associated covenants and restrictions. Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. 1-2(a)(1) (2001). Although we affirm the trial court on the merits, we reverse and remand for further proceedings on the issue of damages.

Background

The Club is a nonprofit organization located in Fairfield Bay, Van Burén County, Arkansas, that is responsible for administering amenities and facilities for resident and nonresident property owners of Fairfield Bay, including a golf course, tennis courts, a marina, and water, sewer, and garbage services. Pursuant to a Declaration of Covenants and Restrictions accompanying the registered deeds of all property owners in Fairfield Bay, all lot owners must join the Club. The agreement also requires all nonresident property owners to pay dues of $18.00 per month to the Club in exchange for the Club’s services. However, charter members are required to pay dues of only $25.00 per year.

Appellant Vowell was familiar with the Club’s contractual arrangements, covenants, and restrictions because of his prior history with the Club. From 1966 to 1973, he served as the Club’s senior vice-president of sales. His responsibilities included managing appellee’s day-to-day operations. Significantly, Vowell also assisted in drafting the Club’s original restrictions and covenants, the subject of the instant litigation.

In 1997, as the president and owner of Finally Communities, Inc., and Finally Properties, Inc., Vowell began soliciting nonresident Club members to consider participation in Canyon Ridge, a competing vacation resort located near Fairfield Bay. Vowell. admits that his marketing strategy included purchasing nonresident-property-owners’ lots for $1.00 in exchange for their purchase of a $2,595.00 Canyon Ridge membership. Under this scheme, Vowell sold 270 memberships in Canyon Ridge and transferred forty-nine deeds to Finally Communities, Inc., and the remaining 221 deeds to Resort Network, Inc., an offshore corporation located in the Bahamas. Then, appellant unilaterally transferred forty-nine deeds back to the Club, without the Club’s consent.

Subsequently, the Club filed an action in chancery court alleging that Vowell tortiously interfered with its business expectancy by terminating its contractual relationships with nonresident property owners and by failing to make monthly dues payments after accepting former members’ deeds. Further, appellee alleged that it would suffer irreparable harm if Vowell’s actions remained undeterred. As a result, the Club sought injunctive relief and reformation of the forty-nine deeds transferred to the Club without its consent.

Initially, appellee received temporary injunctive relief from the chancery court, which prohibited appellant’s dissemination of false information about the Club and enjoined the redemption of Fair-field Bay lots to appellant as part of Canyon Ridge’s marketing plan. Apparently, following this order, Vowell conveyed the lots directly to Resort Network, Inc., the offshore corporation, effectively frustrating the Club’s collection efforts. Ultimately, the matter proceeded to trial. On March 8, 2000, the chancery court entered an order “reforming” the forty-nine deeds transferred to the Club, awarding appellee $807,066.00 in damages, and enjoining Vowell from taking any further action to interfere with the Club’s contractual relationships with its members. From that order, comes the instant appeal.

Vowell raises three points on appeal. First, he claims that the chancery court lacked subject-matter jurisdiction because the Club had an adequate remedy at law. Second, he contends that the court’s finding of tortious interference with business expectancy was clearly erroneous. Third, appellant argues that the court erroneously calculated the damage award. After considering the parties’ arguments and authorities, we affirm, in part, and reverse and remand, in part, for a recalculation of damages.

I. Jurisdiction

Appellant’s first issue on appeal raises a jurisdictional challenge. Specifically, Vowell claims that the Club had an adequate remedy at law, which precludes equity jurisdiction. In response, appellee suggests that Vowell waived any objection to subject-matter jurisdiction because he admitted that jurisdiction was appropriate in his answer to its complaint. This threshold argument is meridess. Subject-matter jurisdiction is a defense that cannot be waived by the parties at any time nor can it be conferred by the parties’ consent. See Moore v. Richardson, 332 Ark. 255, 964 S.W.2d 377 (1998). Although we discard appellee’s waiver argument, we agree that equity jurisdiction was appropriate in this case.

The Club sought relief for damages arising from Vowell’s unilateral transfer of forty-nine deeds that were neither properly delivered to nor accepted by the Club. As a result, appellee sought both “reformation” of the instruments and associated money damages caused by the unilateral conveyances that prevented the Club from collecting expected monthly dues payments. Accordingly, appellee sought equitable relief based upon a tort theory of “tortious interference with business expectancy.” Moreover, although money damages were admittedly sought, the core of appellee’s complaint centered upon the predicament caused by its forced acceptance of the forty-nine deeds and consequent inability to collect expected dues on those properties as well as 221 other lots transferred to an ofishore corporation.

We acknowledge that the Club mischaracterized the nature of equitable relief sought as “reformation,” rather than cancellation. Reformation requires either mutual mistake or unilateral mistake accompanied by fraud. See Robertson Enters., Inc. v. Miller Land & Lumber Co., 287 Ark. 422, 700 S.W.2d 57 (1985). Despite the imprecision, the nature of appellee’s claim and the subsequent relief granted were equitable. The trial court’s purported “reformation” was tantamount to cancellation of the deed transfers. Further, this relief was accompanied by an injunction prohibiting further interference with the Club’s business expectancies arising from its covenants and restrictions. In sum, we cannot say that the Club had an adequate remedy at law in view of appellant’s unorthodox transfer of the first forty-nine deeds and subsequent transfer of 221 deeds to an offshore corporation in a thinly veiled attempt to thwart the chancery court’s temporary restraining order.

In any event, the clean-up doctrine afforded appellee jurisdiction in the chancery court. Pursuant to that doctrine, once equity properly acquires jurisdiction over a matter, it acquires jurisdiction for all purposes. In other words, provided a proper jurisdictional basis existed initially, an allegation of one equitable claim may bring an entire case in to the chancery court. See Towell v. Shepherd, 286 Ark. 143, 689 S.W.2d 564 (1985); see also Howard W Brill, Arkansas Law of Damages § 2-3, at 16 (3d ed. 1996). In light of the foregoing, we conclude that the chancery court had proper subject-matter jurisdiction to hear the entire case.

II. Merits

We next consider appellant’s claim that the trial court was clearly erroneous in finding that Vowell tortiously interfered with the Club’s business expectancy. Ark. R. Civ. P. 52(a) (2001) provides that a chancery court’s factual determinations shall not be set aside unless clearly erroneous. In other words, we should affirm the chancery • court’s finding unless its determination was clearly against the preponderance of the evidence. Id. Of course, a chancellor’s conclusions of law are not entitled to the same deference. If the chancellor erroneously applies the law and the appellant suffered prejudice, the erroneous ruling should be reversed. City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996). Here, we hold that the chancery court’s decision was not clearly erroneous, and we affirm on the merits.

To establish a claim of tortious interference, appellee must prove: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Dodson v. Allstate Ins. Co., 345 Ark. 430, 444, 47 S.W.3d 866, 875 (2001) (citing Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997); Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997); United Built Homes, Inc. v. Sampson, 310 Ark. 47, 832 S.W.2d 502 (1992)).

We also require that the defendant’s conduct be at least “improper.” We have considered the factors outlined in the Restatement (Second) of Torts § 767 (1979), for guidance about what is improper. Dodson, 345 Ark. at 445, 47 S.W.3d at 875 (citing Mason v. Wal-Mart Stores, Inc., 333 Ark. 3, 969 S.W.2d 160 (1998)). In particular, section 767 states that in determining whether an actor’s conduct is improper or not, we should consider: (1) the nature of the actor’s conduct; (2) the actor’s motive; (3) the interests of the other with which the actor’s conduct interferes; (4) the interests sought to be advanced by the actor; (5) the social interests in protecting the freedom of action of the actor and the contractual interests of the other; (6) the proximity or remoteness of the actor’s conduct to the interference; and (7) the relations between the parties. Dodson, 345 Ark. at 445 n.2, 47 S.W.3d at 875-76 n.2 (citing Mason, 333 Ark. at 14, 969 S.W.2d at 160).

A review of the facts in the instant case demonstrates that appellee met its burden of proof. First, the Club had a valid business expectancy to some stream of dues to be paid with respect to the 270 lots purchased by appellee. Second, given Vowell’s past relationship with the Club and intimate knowledge of the restrictions and covenants governing both the Club and property owners, it is evident that he had knowledge of the Club’s expectancies. Third, Vowell’s actions were admittedly intentional and designed as part of a marketing strategy to entice nonresident property owners to terminate their relationship with Fairfield Bay and join Vowell’s competing resort, Canyon Ridge.

Fourth, Vowell’s conduct ultimately induced 270 Club members to terminate their relationship with the Club and Fairfield Bay. When these deeds were then transferred back to the Club or to an execution-proof entity, the Club’s expectancy to those dues was also terminated. Therefore, the Club suffered damages as a result of the terminated relationships and business expectancies. Pursuant to the Restatement guidelines, we may also describe Vowell’s conduct, motives, and interests, as “improper.” Accordingly, we conclude that the chancellor’s decision was not clearly erroneous.

III. Damages

The final point before us concerns the validity of the chancellor’s damage award. Appellant contends that the $807,066.00 award was clearly erroneous. We agree. The chancellor’s computations reflect that the Club was awarded $11,466.00 for the forty-nine lots Vowell unilaterally deeded to the Club. In reaching this figure, the court assumed that each lot was assessed an $18.00 monthly fee that remained unpaid for a period of thirteen months, representing the time elapsed from the date of transfer to the hearing date. Although recovery will not be denied merely because the amount of damages is hard to determine, damages must not be left to speculation and conjecture. Dawson v. Temps Plus, Inc., 337 Ark. 247, 258, 987 S.W.2d 722, 728-29 (1999) (citing Pennington v. Harvest Foods, Inc., 326 Ark.704, 934 S.W.2d 485 (1996); Morton v. Park View Apartments, 315 Ark. 400, 868 S.W.2d 448 (1993)).

Here, the trial court resorted to speculation and conjecture because it assumed that all forty-nine lots were assessed the $18.00 per month fee. However, the evidence demonstrated that some property owners held charter memberships, levied at a reduced rate of $25.00 per year. The damage award fails to distinguish between these types of membership dues and to adjust the award accordingly. For this reason, we hold that the award was clearly erroneous.

For the 221 lots deeded to the offshore corporation, the Club was awarded damages totaling $795,600.00. Again, the trial court assumed that each lot was charged an $18.00 per month fee. For the reasons outlined above, this assumption makes the award subject to speculation and conjecture and requires reversal. Further, the chancellor reasoned that each of the 221 property owners would timely pay his monthly dues in perpetuity, at a total annual rate of $216.00. For example, James Johnsen, the Club’s treasurer, testified that $3,600.00, invested at a six-percent rate of return would yield a yearly income stream of $216.00, the exact amount required to pay one year’s dues on one lot. Taking this figure, the chancery court deemed $3,600.00 as the total lost revenues per lot, multiplied that amount times 221 lots, and calculated total damages of $795,600.00.

Notably, the trial court crafted a damage award that guarantees the Club a perpetual income stream of $18.00 per month for all 221 lots. Such an award assumes that the monthly fee for all lots is $18.00 per month, that no lot owners are charter members, that each property owner (or subsequent property owner) would timely pay dues, and that the Club itself would exist in perpetuity. In effect, the Club would receive an up-front cash payment sufficient upon investment to generate monthly fees on these 221 properties forever. As a result, we reverse the award because the chancellor’s calculations are based upon speculation and conjecture.

We reverse and remand the tort damage award for further action consistent with this opinion. On remand, we direct the chancery court to consider, among other things, the type of membership and dues that attach to each lot, the nature, extent, duration, and permanency of the injury, and evidence of any mitigation of damages.

THORNTON, J., not participating.

       Here, the trial court erred in ordering reformation of the deeds, rather than cancellation. Notwithstanding this mistake, we affirm the chancellor because he reached the right result. Although the court announced the wrong reason, this court is not constrained by the trial court’s rationale but may review the record for additional reasons to affirm. Jones v. Abraham, 341 Ark. 66, 73, 15 S.W.3d 310, 315 (2000) (citing State of Washington v Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999)).