author: Donald L. Corbin, Justice. Steele Hays, Justice,

text:
    James A. RICHARDSON v. STATE of Arkansas
    CR 93-246
    863 S.W.2d 572
    Supreme Court of Arkansas
    Opinion delivered October 25, 1993

      Kit Williams, for appellant.

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

Appellant, James A. Richardson, was found guilty by a jury of four (4) counts of rape by engaging in deviate sexual activity with other persons who were less than fourteen (14) years of age in violation of Ark. Code Ann. § 5-14-103(1987). Appellant was also found guilty of one count of engaging children in sexually explicit conduct for use in visual or print medium in violation of Ark. Code Ann. § 5-27-303 (1987). Appellant was sentenced to forty (40) years imprisonment for each rape charge and ten (10) years imprisonment and a ten thousand dollar ($10,000) fine for the charge of engaging children in sexually explicit conduct for use in visual or print medium. The terms of imprisonment were ordered to run consecutively for a total sentence of one hundred seventy (170) years. Appellant appeals from this sentence and asserts many errors occurred below which require us to reverse and dismiss two of the charges and remand the remaining charges for a new trial. We hold appellant’s four convictions for rape should be reversed and remanded for a new trial and appellant’s conviction for engaging children in sexually explicit conduct for use in visual or print medium should be reversed and dismissed. Accordingly, we will address only those points necessary for us to explain our disposition of this case and those likely to occur on remand.

I. PECUNIARY PROFIT

Appellant argues the trial judge erred in denying his motion for a directed verdict on the charge of engaging children in sexually explicit conduct for use in visual or print media in violation of Ark. Code Ann. § 5-27-303. Appellant moved for a directed verdict on the basis the state had not proven the photographs were taken for “pecuniary profit.” The trial judge ruled “pecuniary profit” was not an element of the crime.

Section 5-27-303 provides in pertinent part:

(a) Any person who employs, uses, persuades, induces, entices, or coerces any child to engage in, or who has a child assist any other person to engage in, any sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct shall be guilty of a Class C felony for the first offense and a Class B felony for subsequent offenses.

At issue is the definition of “producing” as used in the statute. “Producing” is defined at Ark. Code Ann. § 5-27-302(3) (1987) as “producing, directing, manufacturing, issuing, publishing, or advertising for pecuniary profit.” Appellant contends “pecuniary profit” modifies producing, directing, manufacturing, issuing, publishing, and advertising. Appellant contends that to read the statute in any other way results in the absurd consequence that only advertising not for pecuniary profit is prohibited. Appellant also points to the other sections in Act 499 of 1979 as indicating the legislature’s intent to limit the statute to the production of visual or print media for pecuniary profit. The state argues that the rules of statutory construction require a limiting clause to be restrained to the last antecedent, unless the subject matter requires a different construction. Sutherland Stat Const § 47.33 (5th Ed). Therefore, the state argues since there is no comma preceding the phrase “for pecuniary profit”, the phrase only modifies advertising and “pecuniary profit” is not an element of the crime which applies to producing, directing, manufacturing, issuing or publishing.

The definition at issue was originally enacted pursuant to Act 499 of 1979. The definition of “producing” in Act 499 contained a comma after the word “advertising” and before the phrase “for pecuniary profit.” The pertinent provision of Act 499 reads: “ ‘Producing’ means producing, directing, manufacturing, issuing, publishing, or advertising, for pecuniary profit.” As originally codified at Ark. Stat. Ann. § 41-4202 (Supp. 1985) the definition of “producing” also contained a comma after “advertising” and before “for pecuniary profit.” Thus, it is clear to us that the legislature intended pecuniary profit to modify not just advertising, but also producing, directing, manufacturing, issuing, and publishing.

Additional authority for determining the legislature intended for “pecuniary profit” to modify all the preceding terms is provided by House Bill 1471 of 1987. In H.B. 1471, the General Assembly

“authorize[d] and empowered] the Arkansas Statute Revision Commission to revise, codify, and publish a code of all the statute law of the State of Arkansas of a general and permanent nature, but without changing the substance or meaning of any provision of the statutes and after approval and adoption by the Arkansas General Assembly[.]” [Emphasis added.]

The result was the Arkansas Code of 1987. H.B. 1471 also provided in pertinent part:

SECTION 4. (b) All acts, codes, and statutes, and all parts of them and all amendments to them of a general and permanent nature in effect on December 31, 1987, are repealed unless:
(2) Omitted improperly or erroneously as a consequence of compilation, revision, or both, of the laws enacted prior to the Code, including without limitation any omissions that may have occurred during the compilation, revision, or both, of the laws comprising the Code; ....
(c) In the event one of the exceptions in subsection (b) should be applicable, the law as it existed on December 31, 1987, shall continue to be valid, effective, and controlling.

Removal of the comma changed the substance and meaning of section 41-4202. Obviously, the absence of the comma after the word advertising was an omission as contemplated under-Section 4(b) of H.B. 1471. Therefore, the law as it existed on December 31, 1987, is controlling. The law as it existed on December 31, 1987, contained a comma after the word advertising. Thus, “for pecuniary profit” is a required element of proof under the statute. The state failed to present proof appellant took the photographs “for pecuniary profit.” This charge should properly have been dismissed.

II. SEARCH WARRANT

Appellant raises two arguments urging us to find the search warrant used to obtain photographs and other evidence introduced at trial was invalid and the evidence should have been suppressed. Appellant first argues that there was no probable cause to issue the search warrant for his home. Appellant’s second argument is that the evidence seized from his home should have been suppressed because it was obtained as a result of an illegal nighttime search. Since we find appellant’s nighttime search argument has merit, we do not reach his probable cause argument.

Appellant contends the evidence seized from his home should have been suppressed because it was obtained as a result of an illegal nighttime search. We refer to searches which occur after 8 p.m. as “nighttime” searches in our case law. The search warrant at issue was executed at approximately 8:45 p.m. and the search continued until around midnight. The trial judge determined the evidence should not be suppressed. When reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination, based on the totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Cavin v. State, 313 Ark. 238, 855 S.W.2d 285 (1993).

Ark. R. Crim. P. 13.2(c) provides:

Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;
the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.

The warrant in this case contained two different places the issuing magistrate could check to indicate when the warrant could be executed. The magistrate in this case checked the box next to the phrase “between six (6:00) AM and ten (10:00) PM o’clock.” The other box the magistrate could have checked read as follows:

( ) at any time during the day or night, after finding this is necessary because:
( ) The (person/s) (place) (object/s) to be searched is difficult of speedy access;
( ) the objects to be seized are in danger of imminent removal;
() the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy[.]

We have consistently held that a factual basis supporting a nighttime search is required as a prerequisite to the issuance of a warrant authorizing a nighttime search. Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991). The warrant was obtained based on information given to the affiants, Detective Joseph Scott Stidman and Detective Robert Turberville, on May 12,1992, about events occurring at appellant’s home on or about May 2, 1992. The affidavit contains a statement that “[i]t is further believed that the above described illegal items are in danger of being removed from said premises or destroyed.” We have held conclusory language such as this unsupported by facts is insufficient to justify a nighttime search. State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980). Given that there was nothing to give reasonable cause to believe the items specified in the search warrant would be disposed of, removed, or hidden before the next morning, issuance of the nighttime search warrant was in error. State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991 ); Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990).

However, even when a search warrant is issued in violation of Rule 13.2(c), a motion to suppress will not be granted unless the violation is “substantial.” Hall, 302 Ark. 341, 789 S.W.2d 456. We have repeatedly held that failure to justify a nighttime search with sufficient factual information results in a substantial violation. Garner, 307 Ark. 353, 820 S.W.2d 446.

Therefore, we must consider whether the executing officers acted in good faith under United States v. Leon, 468 U.S. 897 (1987), and, if so, whether that salvages an otherwise defective search and seizure. Id. While subjectively the police officers executing the warrant apparently believed they were complying with the law since the printed form appeared to authorize a search until ten (10) p.m., we apply an objective standard in deciding whether the executing officers acted in good faith. Id. Our rules of criminal procedure provide that a search conducted after 8 p.m. requires a finding by the issuing judge that the warrant should be executed at any time, day or night because one of the three circumstances set out in Ark. R. Crim. P.13.2(c) exists. The objective standard requires officers to have a reasonable knowledge of what our rules require. Hall, 302 Ark. 341, 789 S.W.2d 456. At the suppression hearing, Detective Stidman testified he was familiar with our rules. We have held that where no factual basis supports the issuance of a warrant for a nighttime search, the Leon good-faith exception is not applicable. Id. For these reasons, we hold the trial court erred in denying appellant’s motion to suppress the evidence seized pursuant to the search warrant.

Finally, we must decide what effect the suppression of this evidence has on appellant’s rape convictions. The evidence seized which was introduced at trial consisted of various books with the following titles: Sexual Experience Between Men and Boys; Boyhood; Lewis Carroll’s Photographs of Nude Children; The Child Lovers; Playtime Pals II; Show Me; Coming Out; Nudist Studio Review; Boys Studies Volume No. IF, Boys Studies No. Ill, and Piccolo. Also introduced were: photographs of the three (3) boys who testified appellant raped them and took naked photographs of them; a paper sack containing several pairs of boys underwear; a box containing literature and about fifteen sexual devices; and six (6) copies of a certificate purporting to grant a one-fifth (1 /5) interest in a three-wheeler. This evidence undoubtedly influenced the jury’s decision and was prejudicial to appellant. Therefore, the rape charges must be reversed and remanded for a new trial.

III. SEVERANCE

Appellant next argues the trial judge erred in refusing to grant severance of the charges against him. Appellant asked for severance of each of the rape charges and of the charge of engaging children in sexually explicit conduct for use in visual or print medium. Since we have dismissed the charge of engaging children in sexually explicit conduct, we will address the issue of severance only as to the rape charges.

Granting or refusing a severance is a matter within the discretion of the trial court. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). Where the facts necessary to prove the offenses would almost be required in each trial if a severance were granted and the evidence would be used in each trial to prove a plan, scheme, motive or state of mind, there is no abuse of discretion in refusing to sever the cases. Id. When the charge concerns the sexual abuse of children, we have held that evidence of sexual abuse with children other than the victim is admissible to show motive, intent, or plan pursuant to A.R.E. Rule 404(b). Id.

In this case, appellant was charged with four counts of rape involving three victims. All of the alleged events occurred at appellant’s home. Two of the victims J. L. and D. W. testified that they were at appellant’s home at the same time when appellant told both victims to come into his bedroom where he performed oral sex on one victim while the other child performed anal sex on appellant. Each of these victims testified that appellant performed oral sex on them and J. L. testified that he also saw appellant perform oral sex on D. W. D. W. also testified that appellant performed anal sex on him on a different occasion. M. H. testified appellant asked him to come back in his bedroom while there were other boys in the house and appellant performed oral sex on M. H. As all this evidence would have been admissible at the trial of each charge to prove motive, intent or plan, it was not an abuse of the trial judge’s discretion to deny severance.

IV. SURPRISE

Appellant claims he was unfairly surprised when the state asked the trial judge to charge the jury with two (2) counts of rape as to one of the victims, D. W. The information charged appellant with four (4) counts of rape by engaging in deviate sexual activity with other persons who were less than fourteen (14) years of age. It did not specify the names of the individuals or any other details upon which the charges were based. The state apparently revealed the names of four boys to appellant and gave appellant the transcripts of their police interviews. One of the boys did not show up for the trial for reasons which are not known. Appellant claimed surprise when the state asked to charge the jury with two counts of rape as to D. W. Appellant claims he was told in a letter he received from the state that there would be one charge of rape for each child. The prosecutor told the judge that he had disclosed four victims and their statements but that he never indicated it was one charge per victim. Appellant has not provided us with the letter from the prosecutor, so we are unable to determine whether appellant was led to believe the state intended to prove one charge of rape for each victim disclosed. In any event, since we have reversed and remanded the rape charges for a new trial, appellant has not shown any prejudice since he is now aware that the state intends to prove two counts of rape as to D. W.

V. SENTENCING

Appellant argues the trial judge abused his discretion by taking into consideration the possibility that there were more victims than those that testified at the trial and that appellant had been convicted of similar crimes in Louisiana for which he was subsequently pardoned in deciding to sentence appellant to consecutive terms of imprisonment. As appellant did not object to his terms of imprisonment being imposed consecutively, we will not address this argument on appeal. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990). However, we note that we have held it is impermissible to use pardoned offenses in determining punishment. Duncan v. State, 254 Ark. 449, 494 S.W.2d 127 (1973). Likewise, consideration of uncharged offenses is also impermissible.

CONCLUSION

Since the remaining issues are unlikely to arise on remand, we do not address them.

Reversed and remanded in part; reversed and dismissed in part.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I concur with that portion of the majority opinion dealing with pecuniary profit but I cannot agree with that portion dealing with the search warrant.

Arkansas R. Crim. P. 16.2 provides that a motion to suppress “shall be granted only if the court finds that the violation upon which it is based was substantial. . . .” (My emphasis). Among the several factors to be considered in making that determination is the extent of invasion of the defendant’s privacy. Here, in contrast to the facts in Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991), where the search began at 2:30 a.m., the search began at 8:45 in the evening, when, according to the undisputed testimony, it was still twilight. There was no evidence that the appellant had retired for the evening, in fact, the appellant offered no proof whatever at the suppression hearing. Thus, the search in this case began well before bedtime for the vast majority of people.

In the absence of any showing that his right of privacy was materially disturbed, in my estimation the appellant has failed to meet the requirement of Rule 16.2. See James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983); Brothers v. State, 261 Ark. 64, 546 S.W.2d 715 (1977), and United States v. Koller, 559 F.Supp. 539 (E.D. 1983).


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Myrl FOX v. STATE of Arkansas
    CR 93-306
    863 S.W.2d 568
    Supreme Court of Arkansas
    Opinion delivered October 25, 1993

      William R. Simpson, Jr., Public Defender, by: Tammy Harris. Deputy Public Defender, for appellant.

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

This appeal arises from a rape conviction where the appellant, Myrl Fox, received a sentence of 60 years imprisonment. The victim was his stepdaughter, A.B., who was 14 years old at time of trial. He challenges his conviction on two grounds: (1) insufficiency of the evidence, and (2) refusal of the trial court to order the release of an unfounded report of sexual abuse made by A.B. Both arguments are without merit, and we affirm.

In 1983, the appellant married Paula Fox, who had a daughter, A.B., by a previous marriage. According to A.B., Fox began sexually abusing her from the time she was six or seven years old and continued to do so until the time that she notified the State Department of Human Services in 1991. After making the charge against Fox, she recanted, and DHS designated the charge to be unfounded.

In August of 1991, A.B. made a second allegation of sexual abuse against Fox to DHS. This allegation was also investigated but this time it was determined to be founded, and an information charging the appellant with rape was subsequently filed. The State contended that the appellant had been sexually molesting A.B. over a period of time beginning January 1,1983, and ending on July 28, 1991.

The appellant filed a motion for discovery requesting all materials discoverable pursuant to Ark. R. Crim. P.17.1 through 17.4 and a later motion to compel. In particular, the appellant sought an order requiring the State to provide copies of all prior allegations of sexual abuse that A.B. had made against him as well as all documents concerning investigations by SCAN or any other agency and the results of those investigations.

The court conducted a hearing on the appellant’s motion to compel at which the appellant argued that he needed access to the DHS files and especially to any reports stating that a complaint filed by his stepdaughter was determined to be unfounded. He claimed that his stepdaughter had made at least two allegations against him which DHS had determined to be unfounded. The appellant contended that additional unfounded reports would be exculpatory evidence.

Following the hearing, the trial court directed DHS to disclose all reports, both founded and unfounded, concerning allegations of abuse made by A.B. Fox then filed a motion to dismiss the charges against him for prosecutorial misconduct, alleging that the State had failed to comply with the court’s order. The State responded that DHS had produced all founded reports and that unfounded reports were not discoverable under Ark. Code Ann. § 12-12-506 (b) (Supp. 1991). The State then filed a motion to reconsider full disclosure of the DHS files.

The court conducted a second hearing on the appellant’s motion to dismiss and the State’s motion to reconsider and denied the appellant’s motion to dismiss for prosecutorial misconduct. The court reversed itself and declined to order disclosure of unfounded reports to the appellant.

Trial in this matter began on August 13,1992. A.B. testified that the appellant started touching her in the vaginal area when she was six or seven years old, although she could not recall the precise time that Fox first touched her. She said that the appellant began to have sexual intercourse with her and to force her to engage in oral sex when she was ten or eleven years old. She said she did not want to have intercourse or oral sex with him but that she was frightened. She said that she had to have sex with the appellant in order to get permission to leave the house. Though she did not recall the first time that she had sex with the appellant, she did recall the last time that she did.

A.B. testified that Fox once tried to get her friend, S.E., to touch his penis. She also testified that when she told her mother about this, her mother told her to forget it. She admitted that her mother and the appellant were planning to move away from Little Rock in August of 1991 and that she did not want to go. A.B. further stated that a guest in her uncle’s home, Michael Caldwell, once made sexual overtures to her.

On cross examination, A.B. admitted that she lied to Jan Painton, a case worker with the DHS, in July of 1991, when she recanted on the first charge made against Fox. She denied that she made up these allegations so that she would not have to leave Little Rock and testified that she wanted to stay in Little Rock to be with her great-grandfather (her biological father) because he was ill.

S.E. testified that Fox had asked her to touch his penis when she was about ten years old. S.E. also testified that on one occasion the appellant watched pornographic movies in front of her and A.B. and that he “played with himself’ while watching these movies. S.E. testified that she had seen the appellant make A.B. “touch him,” which was a reference to sexual contact.

Ms. Ida Heer, A.B.’s great aunt, testified that she was present when A.B. told her mother that Fox was having sex with her. She confirmed that Paula Fox told her daughter to forget about it. Ms. Heer also testified that A.B. did not want to leave Little Rock.

Jan Painton, the investigator from DHS, testified that she investigated two claims of abuse made against Fox by A.B. The first claim, made in July of 1991, was determined to be unfounded. The second claim made in August of 1991 was determined to be founded. Ms. Painton described the second report as founded because it concluded that the appellant had indeed been sexually molesting A.B.

A.B.’s mother, Paula Fox, testified on behalf of the appellant and stated that Ms. Painton came out to visit them before the family started talking about moving from Little Rock. She said A.B. never told her that the appellant was having sex with her until she told A.B. that they were moving back to Texarkana. Mrs. Fox also denied ever hearing that her husband asked S.E. to “touch him.” Mrs. Fox did admit that she did not know if the appellant molested A.B. but that she would not put it past him. Mrs. Fox testified that she asked A.B. if anything of a sexual nature was occurring with the appellant and that A.B. denied that there was.

A.B.’s uncle, Raymond Fox, testified that she would confide in him but stated that she never told him Fox was molesting her. He further stated that A.B. once accused a man named Michael Caldwell, who was a friend who was spending the night with him, of attempting to molest her. He added that Caldwell told him that A.B. had been in his room. Michael Caldwell then testified that once when he spent the night at the home of Raymond Fox, A.B. was there and that during the night she came into his room and tried to get in bed with him.

The jury found Fox guilty of rape. Three of the appellant’s prior convictions were entered into evidence, and the appellant was sentenced as a habitual offender to sixty years in prison.

I. SUFFICIENCY OF THE EVIDENCE

The appellant’s first allegation of error is that there was insufficient evidence to sustain his conviction. When considering whether the evidence was sufficient, we view the evidence in the light most favorable to the appellee, and the judgment will be affirmed if there is substantial evidence to support the conviction. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is evidence that is of sufficient force and character that it will compel a conclusion one way or another with reasonable certainty and will induce the mind to go beyond mere suspicion or conjecture. Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1991).

We have consistently held that the testimony of the rape victim, standing alone, is substantial evidence to sustain a rape conviction, and there need not be corroboration. Stewart v. State, 297 Ark. 429, 762 S.W.2d 794 (1989); Roper v. State, 296 Ark. 292, 756 S.W.2d 124 (1988); Houston v. State, 293 Ark. 492, 739 S.W.2d 154 (1987). In this case, A.B. testified that the appellant began sexually abusing her when she was six or seven years old, that he instructed her how to hold and rub his penis, and that he began having sexual intercourse with her and requiring her to have oral sex with him when she was ten or eleven years old which continued until July 1991. In addition, she testified that she did not want to have sexual relations with the appellant but was frightened and that the appellant would use coercion such as refusing to give her permission to leave the house if she refused.

Additional evidence to support the conviction predominates. Pat Heer testified that she was present when A.B. told her mother that the appellant had been sexually abusing her. Ms. Heer said that Mrs. Fox told A.B. to “forget about it.” S.E. also testified that Fox had tried to get her to touch his penis and that she had seen him make A.B. “touch him” which, from the context, meant sexual contact. In addition, Mrs. Fox testified that she did not know whether the appellant was molesting A.B. but that she would not put it past him.

The appellant also questions the credibility of A.B. and argues that her lack of believability militates against affirmance. Credibility determinations are made by the jury, and we will not disturb them on appeal when there is substantial evidence to support the jury’s verdict. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992); see also Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992); Stewart v. State, supra. A.B.’s testimony was plainly determined to be credible by the jury. The appellant’s sufficiency argument is without merit.

II. RELEASE OF UNFOUNDED REPORT

The appellant’s second claim of error is that the trial court erred by not allowing him access to unfounded as well as founded reports of sexual abuse in the DHS files. The appellant argues that the court’s ruling that he was entitled only to founded reports was contrary to the holding in Pennsylvania v. Ritchie, 480 U.S. 39 (1987),as well as a misinterpretation of Ark. Code Ann. § 12-12-506 (b) and (f) (Supp. 1991).

We first consider the statute in question which reads in part:

(a) Reports made pursuant to this subchapter, shall be confidential and may be used or disclosed only as provided in this section. . . .
(b) If the allegations are determined to be unfounded, the report may be used only within the department for purposes of the administration of adoption, foster care, children’s protective services programs, or child care licensing programs. There can be no further disclosure of this information.
(f) The department shall not release data that would identify the person who made the report or who cooperated in a subsequent investigation unless a court of competent jurisdiction orders release of the information for good cause shown. However, the information shall be disclosed to the prosecuting attorney or law enforcement officers on request.

Ark. Code Ann. § 12-12-506 (Supp. 1991).

We do not read the statute to require the disclosure of unfounded reports. It is clear to us that the General Assembly intended by § 12-12-506(b) for unfounded reports to be used solely within the confines of DHS and that further disclosure was prohibited. That directive in § 12-12-506(b) could not be more precise or unambiguous, and it is axiomatic that we glean legislative intent from the clear language of the pertinent statute. Mountain Home Sch. Dist. v. T.M.J. Builders, Inc., 313 Ark. 661, 858 S.W.2d 74 (1993). Moreover, reading the statute as a whole, we are convinced that the release of information contemplated by § 12-12-506(f) does not relate to unfounded reports.

We further conclude that the appellant’s reliance on Pennsylvania v. Ritchie, supra, is misplaced. Like the instant case, the defendant in Ritchie was also facing a sexual abuse charge brought by his daughter, and he had subpoenaed all records from the state agency. The trial court denied the request and the Supreme Court of Pennsylvania reversed, holding that the defendant had the right to examine all reports in dispute. The United States Supreme Court then affirmed the state supreme court in part and reversed it in part. In affirming a remand for further proceedings regarding a full disclosure of files, the Court said:

Although we recognize that the public interest in protecting this type of sensitive information is strong, we do not agree that this interest necessarily prevents disclosure in all circumstances. This is not a case where a state statute grants CYS the absolute authority to shield its files from all eyes. (Citing authority.) Rather, the Pennsylvania law provides that the information shall be disclosed in certain circumstances, including when CYS is directed to do so by court order. (Citing authority.) Given that the Pennsylvania Legislature contemplated some use of CYS records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is “material” to the defense of the accused.

480 U.S. 57-58.

What distinguishes the facts of Pennsylvania v. Ritchie from the case at hand is that the Arkansas General Assembly has established a clear state policy against the release of unfounded reports, as already discussed, by enacting Ark. Code Ann. § 12-12-506(b). Because this is the case, we do not consider Pennsylvania v. Ritchie to be controlling. Rather, the Court in that decision took pains to state that it was holding as it did due to the absence of a state policy in Pennsylvania to the contrary. Here, such a state policy exists.

As a corollary point, we note that in the instant case Fox was well aware of the fact that A.B. had made an unfounded report to DHS against him in July 1991, since he received a letter to that effect. He was also aware that the reason the report was deemed unfounded was that A.B. recanted her accusation of sexual abuse. She then renewed the allegation the following month. The jury was also fully apprised of these developments through the testimony of A.B. and Jan Painton.

We read § 12-12-506(f) as a clear expression of state policy prohibiting the disclosure of unfounded reports. Accordingly, we conclude that the trial court did not err in refusing to order DHS to violate this policy.

Affirmed.


text:
    Corelanius PHILLIPS v. STATE of Arkansas
    CR 93-642
    863 S.W.2d 309
    Supreme Court of Arkansas
    Opinion delivered October 25, 1993

      Robert P. Remet, for appellant.

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

The appellant, Corelanius Phillips, appeals his capital murder conviction and sentence to life imprisonment without the possibility of parole. His argument on appeal concerns essentially one issue: whether he established his affirmative defense of insanity based on an intermittent explosive disorder so as to render the State’s evidence of capital murder insubstantial and so as to warrant a directed verdict of acquittal. We affirm the conviction and judgment.

During the morning of October 13,1991, the appellant went to the home of Christine Rainey in Warren where Angela Durden, his former girlfriend and the mother of his son, was living. When Angela Durden came to the door, the appellant pulled her outside and to the road and began beating and kicking her. Ms. Rainey and her son observed the assault and called the emergency telephone number, 911. By the time the Warren police officers arrived, Angela Durden was dying from multiple injuries to the head and abdomen. The appellant was arrested on the scene after attempting to escape. He was charged with capital murder, and the death penalty was waived at the beginning of the trial.

At trial, Warren Police Officer Lane Smith testified that he and Officer Tommy Reed were called to Butler Street the morning of the crime. They found Angela Durden lying in a pool of blood and severely beaten. Smith stated that the appellant ran from the scene when the two officers arrived. He added that Phillips was difficult to get into the car and that he told them to shoot him because he was going to kill himself. Officer Smith further testified that the appellant told them that he caught Angela Durden “messing around on him” and he took care of “the problem.” The officer then related that he went with Ms. Durden to the hospital and that she died there shortly after she arrived.

Officer Reed testified that the appellant was very uncooperative and seemed like he did not care. The appellant explained his actions to the police officer by saying that he had been wronged by Ms. Durden and “something just went off-” and “that he clicked.” The officer added that the appellant also stated that, “it’s going to be all right.. . . I’m going to plead temporary insanity.. . . I’ll get off.”

Mr. Leander McEntire testified that he lives near Ms. Rainey and that he observed the appellant’s attack on Ms. Durden. He stated that he saw the appellant drag her from the house and pull her towards the road. Mr. McEntire added that the victim broke free and the appellant caught her and dragged her back to the road. He testified that the appellant began to beat Ms. Durden. He knocked her down, and then stamped her face and stomach. The witness added that he heard the appellant tell the victim that he was going to kill her. He tried to stop the appellant but went back to his house because he thought the appellant had a gun.

Christine Rainey testified'that Ms. Durden and her daughter were friends. The victim was living with her on October 13, 1991. She said that at about 5:30 a.m. the appellant knocked on her door and asked to see the victim. When Ms. Durden finally went to the door, the appellant grabbed her and carried her out to the road. Ms. Rainey testified that the appellant started hitting Ms. Durden. She said that while he was assaulting her, the appellant reached into Ms. Durden’s bra and took out her money. She testified that the appellant knocked Ms. Durden down and then jumped on her and beat her in the face. She added that the appellant called the victim pejorative names while he beat her.

Monica Domineck testified that she was six months pregnant with the appellant’s child in October of 1991. She said that she saw Phillips at about 3:00 a.m. at the Warren Social Club and that the appellant walked her home at about 6:00 a.m. She testified that the appellant smelled like he had been drinking alcoholic beverages.

Dr. W.R. Oglesby, a psychiatrist with Delta Counseling Associates, a community mental health center, testified for the defense. He had evaluated Phillips’s mental competency pursuant to court order. Dr. Oglesby’s diagnosis was: (1) intermittent explosive disorder; and, (2) alcohol abuse. His report stated that in his opinion the appellant:

has no impairment of his capacity to appreciate the criminality of his conduct. However, because of a mental disorder (Intermittent Explosive Disorder) I believe there was some impairment of his ability to conform his conduct to the requirements of the law at the time of the alleged criminal conduct. The exact degree of impairment would be difficult to estimate from a clinical standpoint.

At trial, Dr. Oglesby testified that he could not say to what degree the disorder affected the appellant’s ability to control his behavior. Dr. Oglesby admitted that the appellant was not psychotic. He said that the disorder may have affected the appellant’s behavior as much as 100 % or as little as 25 %. Phillips told him that he had gone over to see Ms. Durden to talk about seeing their son. Ms. Durden began to argue with him and matters escalated. He then just blanked out and did not remember what happened. Dr. Oglesby testified that the appellant was not dangerous unless he was provoked.

There was also testimony at trial that Phillips’s blood alcohol content was. 11 per cent on the day of the crime and that he tested positive for marijuana usage within two to three weeks before his arrest. The Associate Medical Examiner, Dr. David DeJong, testified that cause of death was due to blunt trauma to the head and abdomen. The jury found the appellant guilty of capital murder and sentenced him to life imprisonment without possibility of parole.

I. AFFIRMATIVE DEFENSE OF INSANITY

The appellant’s first claim of error is that the verdict is against the weight of the evidence. This court, however, does not weigh the evidence on appeal. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). Our standard of review when sufficiency of the evidence is the issue is whether there was substantial evidence to support the verdict. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Johnson v. State, 306 Ark. 399, 814 S.W.2d 908 (1991). Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another without resorting to speculation or conjecture. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990). This court will affirm a judgment if there is any substantial evidence to support the verdict. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992); Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990).

The appellant raised the affirmative defense of insanity which is set out by statute:

(a) It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged, he lacked capacity, as a result of mental illness or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct.

Ark. Code Ann. § 5-2-312(a) (1987). The State bears the burden of proving a defendant guilty beyond a reasonable doubt. However, the defendant has the burden of establishing the affirmative defense of insanity by a preponderance of the evidence. Davasher v. State, supra; Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991); Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979).

The following evidence supports the conclusion that the appellant could conform his conduct to the requirements of law and appreciate the criminality of his actions. First, Dr. Oglesby testified that the appellant was not suffering from a psychosis, and his diagnosis was that the appellant was suffering both from intermittent explosive disorder and alcohol abuse. Dr. Oglesby testified that although he was of the opinion that the appellant was suffering from some type of impairment at the time of the offense, he was not able to say to . what degree the appellant’s ability to conform his conduct was affected. Dr. Oglesby admitted that intermittent explosive disorder is not a widely accepted disorder and is thought by some to be a personality disorder.

Warren Police Officers Lane and Reed testified that when they arrived at the crime scene, the appellant fled and tried to hide in a vacant lot. Officer Reed also provided a motive for the murder — the appellant told him that he attacked the victim because he believed she was involved with another man. Further, the appellant told Officer Reed that “it’s going to be all right. . . . I’m going to plead temporary insanity. . . . I’ll get off.” All of this testimony is evidence of calculation and even premeditation on the part of Phillips and exhibits an awareness of the legal and moral consequences of his actions.

It is for the jury to decide whether a defendant has sustained the burden of proving insanity by a preponderance of the evidence. The jury is the sole judge of the credibility of witnesses, including experts, and has the duty to resolve conflicting testimony regarding mental competence. Fitzhugh v. State, 293 Ark. 315, 737 S.W.2d 638 (1987). Here, evidence regarding insanity, both pro and con, including the ability of the appellant to conform his conduct, was submitted to the jury, and it was then instructed on the law. The jury rejected the insanity defense and entered a verdict of guilty. There was clearly substantial evidence to support this verdict.

II. DIRECTED VERDICT OF ACQUITTAL

The appellant’s second claim of error is akin to the first. He argues that the trial court erred in failing to direct a verdict of acquittal on grounds of temporary insanity. We disagree.

The law provides that a trial judge may enter a judgment of acquittal in the event the defendant clearly establishes that he was suffering from a mental disease or defect at the time of the offense which rendered him unable to conform to the requirements of the law or to appreciate the criminality of his conduct. Ark. Code Ann. § 5-2-313 (Supp. 1993). We have stated, when construing a predecessor statute to § 5-2-313, that “the statute permits the trial judge to acquit the defendant in cases of extreme mental disease or defect where the lack of responsibility on the part of the defendant is clear.” Franks v. State, 306 Ark. 75, 78, 811 S.W.2d 301, 303 (1991). Thedecision of whether to direct a verdict of acquittal is discretionary with the trial court under § 5-2-313. See also Davasher v. State, supra. Moreover, a directed verdict of acquittal is properly denied where there are questions of fact remaining concerning the defendant’s affirmative defense of insanity. Brown & Behis v. State, 259 Ark. 464, 534 S.W.2d 207 (1976).

The trial court did not abuse its discretion in refusing to direct a verdict of acquittal.

The record in this case has been reviewed in accordance with Ark. Sup. Ct. R. 4-3(h) for any additional prejudicial error, and none has been found.

Affirmed.


author: Per Curiam.

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. Robert HARDY
    93-153
    866 S.W.2d 820
    Supreme Court of Arkansas
    Opinion delivered October 25, 1993

      G. Keith Griffith, for appellant.

      Eddie N. Christian, for appellee.
   Per Curiam.

The Department of Human Services filed this paternity suit on behalf of the mother of an infant. The complaint asked that the appellee be decreed to be the father of the child and for past and future child support. The chancellor heard the case and, on October 19,1992, executed a final order deciding the case on its merits. In a separate order, the chancellor decreed: “The Order made and entered by this court on the 19th day of October, 1992, is hereby sealed and filed in-camera and shall not be opened except by order of court of competent jurisdiction.” This separate order was signed and entered on October 19, 1992. Neither the final order, nor the envelope in which it was sealed, are marked as filed by either the judge or the clerk, and consequently neither one is marked with a date of filing. The chancery court clerk made a docket entry showing that the final order was “made and entered” on October 19, 1992. The Department of Human Services now seeks to appeal from the sealed final order.

The Department of Human Services lodged the appeal in the court of appeals. The court of appeals questioned the appellate jurisdiction of such a sealed order, and certified the case to this court for an interpretation of the applicable Rule of Appellate Procedure, Rule of Civil Procedure, and Administrative Order. We took the case under submission, but, after two conferences, have decided to request briefing of the jurisdictional question. The briefs submitted by the parties do not touch on the issue of appellate jurisdiction.

We desire the parties to brief the following issues:

1. Does a rule provide for the sealing of a final order? If not, does any law authorize the sealing of a final order?
2. If there is no rule or law authorizing the sealing of a final order, should an appeal be allowed from such an order?
3. Whether there is authority for the sealing of a final order, and for the appeal of such an order, should the State of Arkansas be allowed to participate in such a process? If we approve such a procedure, how would the Child Support Enforcement Unit or other similar agencies obtain information on compliance with the order? If we approve such a procedure involving the State, how could it be limited?
4. If there is some authority for the sealing of a final order, and for the appeal of such an order, was this final order entered in accordance with ARCP Rule 58 and Administrative Order Number 2? Further, what is the effect of the recitation in the sealing order that the final order was “entered”?
5. If there is some authority for the sealing of a final order, and for the appeal of such an order, was the final order entered in accordance with Ark. R. App. P. 4(e)?
6. If we approve the procedure used in this case, how can one know with certainty when the time for notice of appeal starts to run?

The clerk will set the briefing schedule for the parties, and after the briefs filed, we will again take the case under submission.

Briefing on the issue of appellate jurisdiction ordered.


text:
    Larry Dale BAXTER v. STATE of Arkansas
    CR 93-1098
    862 S.W.2d 282
    Supreme Court of Arkansas
    Opinion delivered October 25, 1993

      Albert Wayne Davis, for appellant.
    No response.
   Per Curiam.

Appellant, Larry Dale Baxter, by his attorney, has filed for a rule on the clerk.

His attorney, A. Wayne Davis, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Calvin MARSHALL v. STATE of Arkansas
    CR 93-1081
    862 S.W.2d 282
    Supreme Court of Arkansas
    Opinion delivered October 25, 1993

      Alvin A. Simes, for appellant.
    No response.
   Per Curiam.

Appellant, Calvin Marshall, by his attorney, Alvin A. Simes, has filed a motion for rule on the clerk. His attorney admits 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. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


text:
    Frank WILLIAMS, Jr. v. STATE of Arkansas
    CR 93-988
    861 S.W.2d 551
    Supreme Court of Arkansas
    Opinion delivered October 25, 1993

      Thomas A. Potter, for appellant.
    No response.
   Per Curiam.

For his motion for reconsideration of this court’s denial of his September 10, 1993 request for writ of certiorari, appellant tenders the affidavit of Betty Voltz, court reporter, which states that she has been unable to prepare the record in this case, but given an additional thirty days, she will do so. Appellant had obtained a court order extending the time to file the transcript in this cause until September 12,1993, which date was the maximum length of time to lodge such transcript with this court. Prior to September 12, 1993, appellant timely filed his motion requesting the court reporter to file the record in this matter, but having stated no reason for the delay, we denied his request.

The court, having now been given the reason for the transcript not having been timely filed, grants appellant’s petition for writ of certiorari and directs Ms. Voltz to complete and file the transcript forthwith.

The court forwards a copy of this per curiam to the Board of Certified Reporter Examiners for any action it may deem necessary under its rules.

Corbin, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Jake HENRY and Barbara Henry v. GAINES-DERDEN ENTERPRISES, INC.
    93-130
    863 S.W.2d 828
    Supreme Court of Arkansas
    Opinion delivered November 1, 1993

      Henry, Walden & Halsey, for appellants.

      David Hodges, for appellee.
   Jack Holt, Jr., Chief Justice.

In this appeal from orders entered by the Lawrence County Circuit Court, the appellants raise two points for reversal, challenging the trial court’s setting aside of a default judgment in their favor and, in turn, granting summary judgment in favor of the appellee. The trial court was correct in setting aside the default judgment but, in light of proof of the existence of a genuine issue of material fact, erred in granting summary judgment.

The appellants, Jake Henry, an electrical contractor, and his wife, Barbara Henry, owed the appellee, Gaines-Derden Enterprises, Inc. (doing business as Davies Electric Supply Company), the amount of $27,346.73 on an unpaid account. Gaines-Derden filed suit against the Henrys on January 17, 1987. The lawsuit was dismissed on February 1, 1987, as a result of a settlement agreement between the parties. Gaines-Derden agreed to accept an initial payment of $10,000 and to accept a mortgage on the Henrys’ property in the. amount of $17,346.73. Monthly payments of $500 were to be made until the debt was paid in full.

Appellant Jake Henry made each payment on the indebtedness by check. Some of the checks were made payable to Davies Electric Supply, while others were in the name of the appellee’s attorney, Josh McHughes, who endorsed all checks by stamp and deposited them in his account. On September 19, 1990, after payment of all the outstanding indebtedness, Troy Henry, the appellants’ attorney, wrote to Mr. McHughes, requesting that he direct his client to sign a release deed, a copy of which was attached to the correspondence. Gaines-Derden failed to release the mortgage, and the Henrys’ attorney sent additional letters to Mr. McHughes in November and December 1990, demanding a release and satisfaction of the record, and notifying the appellee’s attorney that suit would be filed if no action were taken in the matter.

On January 16, 1991, the Henrys filed a complaint against Gaines-Derden, seeking damages pursuant to Ark. Code Ann. § 18-40-104 (1987), the statute requiring acknowledgment on the record of satisfaction for the amount due on any mortgage. Acknowledgment, under the statute, operates as release of the mortgage. Ark. Code Ann. § 18-40-104(b). The Henrys sought $12,500 in damages, as well as costs and attorneys’ fees.

At the time the initial lawsuit was filed, in 1987, the appellee’s business operations were located in Searcy, where the Secretary of State’s corporate file indicated the registered agent could be reached. In the meantime, however, Gaines-Derden Enterprises had moved its offices to North Little Rock.

Unaware of the change of address, the appellants attempted service on Gaines-Derden in Searcy. When that effort proved unsuccessful, the summons and complaint were sent by certified mail to the new business address in North Little Rock. A GainesDerden employee, Wayne Ellsberry, picked up the envelope at the post office and signed for it on January 23, 1991.

Meanwhile, on January 23, 1991, the appellee’s attorney, Mr. McHughes, executed a purported release deed on behalf of Gaines-Derden and recorded it on January 29, 1991. On February 8, 1991, Terrance W. Kenyon, the controller of Davies Electric Supply Company, prepared a letter granting Mr. McHughes “Power of Attorney to represent Davies Electric Supply to sign the release of mortgage of Real Property that belongs to Jake and Barbara Henry.”

Gaines-Derden filed no answer to the Henrys’ complaint, and a default judgment was entered against the appellee on March 19, 1991. Subsequently, Gaines-Derden filed a motion to set aside the judgment, and testimony was taken at a hearing on August 26,1991. Thecourt set aside the default judgment, ruling that service of the summons and complaint was faulty because it was not accomplished through restricted delivery on an officer or registered agent of Gaines-Derden. We agree.

The appellee then answered the Henrys’ complaint and moved for a partial summary judgment, asserting that the mortgagee was not notified individually of the request for satisfaction of the mortgage as required by Ark. Code Ann. § 18-40-104 (1987). In reply, the Henrys argued that the statutory requirement had been satisfied by their having sent the request for satisfaction of the mortgage to Mr. McHughes, the attorney representing Gaines-Derden in the original lawsuit. The trial court granted the partial summary judgment, dismissing the Henrys’ complaint “with prejudice.” We hold, in this regard, that the trial court was in error.

I. Default Judgment

In their first argument, the appellants contend that the trial court erred in setting aside their default judgment on the grounds that service of process was faulty. Under Ark. R. Civ. P. 55(c):

The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud, misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action; however, if the judgment is void, no other defense to the action need be shown.

The standard by which we review the granting or denial of a motion to vacate a default judgment is whether the trial court abused its discretion. B & F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). Default judgments are not favorites of the law, and the revised Rule 55 reflects a preference for deciding cases on the merits rather than on technicalities. Id.

Two cases are controlling on this issue. In Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989), as in the present case, service of the summons and complaint was made by certified mail, and the “restricted delivery” box was not marked. The return receipt bore the signature of “L.D. Madden” as “Agent.” We overturned the lower court’s refusal to set aside a default judgment, observing that:

There was no evidence that appellee had directed the summons and complaint to be mailed with restricted delivery. Nor was there any evidence that appellant had specifically authorized, in writing, that L.D. Madden was to be his agent to receive mail. Consequently, the default judgment was void ab initio, and the trial court erred in denying appellant’s motion to set it aside.

298 Ark. at 463, 768 S.W.2d at 532.

In CMS Jonesboro Rehabilitation, Inc. v. Lamb, 306 Ark. 216, 219, 812 S.W.2d 472, 474 (1991), we allowed a default judgment to stand where one R.L. Wright, who had signed a receipt for certified mail with a blank restricted delivery box, was “authorized to accept restricted mail on behalf of The Corporation Company” and “signed for and accepted the mail containing the complaint and summons, the same as he would have done had the ‘Restricted Delivery’ box been marked.” A card specifically indicating the extent of Wright’s authorization was on file with the post office.

In the present case, Charles Larry Gaines testified that Wayne Ellsberry, who picked up and signed for the certified mail from the appellants, was not listed in any file at either the post office or the Secretary of State’s office as an agent for service of registered mail. Instead, Mr. Ellsberry was an office salesman who periodically collected mail from the post office.

Service of summons upon a domestic corporation may be effected “by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons.” Ark. R. Civ. P. 4(d)(5). Mr. Ellsberry had no express authority to receive restricted mail. The lower court did not err in setting aside the default judgment as void.

II. Summary Judgment

Although couched in terms of a “partial” summary judgment on liability — a nonappealable order — the circuit court’s ruling on the motion by Gaines-Derden was in substance an absolute summary judgment, as it disposed of the complaint in its entirety. The Henrys contend that the granting of summary judgment and the dismissal of the complaint was improper because two genuine issues of material fact remained in dispute: first, whether the appellee’s attorney had actual or apparent authority to accept the request for acknowledgment of satisfaction; and secondly, whether the appellee had actual knowledge of the request more than sixty days prior to a valid release having been recorded.

Rule 56 of the Arkansas Rules of Civil Procedure governs motions for summary judgment. Subsection (c) provides, in relevant part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Summary judgment is an extreme remedy that is only proper when it is clear that there are no issues of fact to be litigated. Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992). It is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Cash v. Carter, 312 Ark. 41, 847 S.W.2d 18 (1993).

The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Any doubt and all inferences must be resolved against the moving party. Lively v. Libbey Memorial Physical Medical Center, 311 Ark. 41, 841 S.W.2d 609 (1992). Once the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet proof with proof by showing a genuine issue of material fact. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992). On appeal, we determine the appropriateness of summary judgment on the basis of whether the evidentiary items presented in support of the motion left a material question of fact unanswered. Thruston v. Little River County, 310 Ark. 188, 832 S.W.2d 851 (1992).

The order granting “partial” summary judgment is a barebones document, offering no reason for the trial court’s decision to grant the motion. Instead, it merely states that “after the Court reviewed the pleadings and all other matters properly before the Court, the Court grants the Motion for Partial Summary Judgment filed herein by the defendant and the Complaint of the plaintiffs against the defendant is dismissed with prejudice.” (Emphasis added.)

Because of the lack of specifics in the circuit court’s order, it must be assumed that the circuit court incorporated the contentions set forth in the motion by Gaines-Derden. The pertinent passages follow:

1. The defendant was not served individually with notice of the plaintiffs’ request for an acknowledgment of satisfaction of a mortgage pursuant to Ark. Code Ann. § 18-40-104.
2. Notifying the mortgagee individually is a mandatory component of a request for acknowledgment of satisfaction of a mortgage. Ark. Code Ann. § 18-40-104. Without individual notice to the mortgagee, the mortgagor cannot establish a claim for damages for the mortgagee’s failure to acknowledge.
3. That the defendant did not receive notice is undisputed based on the supporting affidavit hereto attached.
4. Requesting an acknowledgment from the mortgagee’s attorney does not satisfy the notice requirement of Ark. Code Ann. § 18-40-104.
5. Because the defendant did not receive notice, the defendant is entitled to summary judgment as a matter of law.

A supporting affidavit, from Larry Gaines of Gaines-Derden Enterprises, Inc., stating that the appellee “did not receive a request from the plaintiffs for an acknowledgment of satisfaction of their mortgage,” was attached to the motion.

The statutory section at issue, Ark. Code Ann. § 18-40-104 (1987), provides:

(a) If any mortgagee, or his executor, administrator, or assignee, shall receive full satisfaction for the amount due on any mortgage, then, at the request of the person making satisfaction, the mortgagee shall acknowledge satisfaction thereof on the margin of the record in which the margin is recorded.
(b) Acknowledgment of satisfaction, made as stated in subsection (a) of this section, shall have the effect to release the mortgage, bar all actions brought thereon, and revest in the mortgagor or his legal representatives all title to the mortgaged property.
(c) If any person receiving satisfaction does not, within sixty (60) days after being requested, acknowledge satisfaction as stated in subsection (a) of this section, he shall forfeit to the party aggrieved any sum not exceeding the amount of the mortgage money, to be recovered by a civil action in any court of competent jurisdiction.

The crux of the motion for summary judgment was the allegation on the part of Gaines-Derden that it did not receive adequate notice. According to the appellee, § 10-40-104 requires individual notice to the mortgagee — in this instance, GainesDerden itself. The appellee directs our attention to a seventy-five-year-old case, Reed v. Frauenthal, 133 Ark. 544, 202 S.W. 700 (1918), for the principle that this section, being penal in nature, must be strictly construed. Yet Reed dealt with a rather different context; there, we invoked strict construction in declining to extend the application of the section to a sale with retention of a vendor’s lien.

Another older case, Barnett v. Bank of Malvern, 176 Ark. 766, 770, 4 S.W.2d 17, 19 (1928), is cited by the appellee, for the following language:

We are, therefore, of the opinion that a demand to satisfy is sufficient which calls to the attention of the mortgagee the fact that the indebtedness secured by the mortgage has been paid, and requests, in consideration of that payment, that satisfaction of the mortgage be made.

The Barnett case involved a question of notice. This court held that an oral demand delivered to a cashier employed by the mortgagee-bank was as adequate under the terms of the statute as a written request. The Barnett opinion never questions the role of the attorney acting as agent for the mortgagee for purposes of endorsement of the court record. But we found a failure to comply with the statute when the attorney for the mortgagee bank noted the payment in full of an indebtedness on the margin of a chancellor’s decree rather than the record. It was, therefore, the endorsement, not the endorser, that was out of compliance.

The rules of agency generally apply to the relationship of attorney and client. McCullough v. Johnson, 307 Ark. 9, 816 S.W.2d 886 (1991); White & Black Rivers Bridge Co. v. Vaughan, 183 Ark. 450, 36 S.W.2d 672 (1931). The acts of an attorney are to be regarded as the acts of the client. Peterson v. Worthen Bank & Trust Co., 296 Ark. 201, 753 S.W.2d 278 (1988).

Whether or not an agent is acting within the scope of actual or apparent authority is a question of fact for the jury to determine. Crail v. Northwestern National Insurance Co., 282 Ark. 175, 666 S.W.2d 706 (1984); Rowland v. Gastroenterology Associates, P.A., 280 Ark. 278, 657 S.W.2d 536 (1983). The Arkansas Court of Appeals, in Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1982), dealt with whether the issue of the authority of an attorney to bind a client by his acts could be decided by summary judgment. The appellate court concluded that “the denial of that authority by appellants raised a disputed question of fact which was not appropriate for disposition on motion for summary judgment.” Id., 3 Ark. App. at 212, 626 S.W.2d at 204.

The authority of Josh McHughes as agent for GainesDerden was vigorously disputed in the pleadings. Mr. McHughes, the record reveals, was the attorney for GainesDerden in the 1987 lawsuit against the Henrys. He negotiated the settlement and received and filed the mortgage. All of the Henrys’ monthly payment checks were mailed to Mr. McHughes, who endorsed and deposited them into his account, whether they were made payable to him or to Davies Electric Supply Company.

All three requests for acknowledgment of satisfaction were made to Mr. McHughes between September and December 1990, and the attorney executed a release deed in January 1991. Finally, the controller for Davies Electric Supply Company prepared a letter in February 1991 giving Mr. McHughes the power of attorney to represent Davies Electric Supply in the mortgage release.

Given the fact that, throughout the period during which monthly payments were made, the Henrys were dealing with Mr. McHughes, they had some cause to rely upon his ostensible authority to represent Gaines-Derden in subsequent matters. As this court observed in Mack v. Scott, 230 Ark. 510, 514, 323 S.W.2d 929, 931-932 (1959):

Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has; such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess. . . .

Mr. McHughes’s role is well established in various written instruments that were specifically mentioned, attached to, and made a part of the pleadings filed in the action. Under Ark. R. Civ. P. 10(c):

Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.

Exhibits that formed a part of the claim the Henrys sued upon in the original action, such as the mortgage, letters, and release deed, sufficiently indicated the existence of a genuine issue of material fact concerning the status of Mr. McHughes.

Although Ark. R. Civ. P. 56(e) states that a party resisting a motion for summary judgment “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial,” it is “otherwise provided” in subsection (c) that “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any,” are to be examined in order to “show that there is no genuine issue as to any material fact.”

Hence, the documents incorporated in the pleadings (which went beyond “mere allegations or denials”) should have been examined and considered by the trial court as it entertained Gaines-Derden’s motion for summary judgment. In doing so, the court should have noted the existence of a genuine issue of material fact to be determined at trial.

Under the circumstances, the granting of summary judgment by the trial court was improper.

Affirmed in part; reversed in part.


author: Jack Holt, Jr., Chief Justice. Jack Holt, Jr., Chief Justice.

text:
    Roy and Norma Shirley INGRAM, Husband and Wife, and Kenneth and Kathy Ingram, Husband and Wife v. Sedric and Phyllis WIRT, Husband and Wife, and George and Trudy Henley, Husband and Wife
    93-278
    864 S.W.2d 237
    Supreme Court of Arkansas
    Opinion delivered November 1, 1993
    [Supplemental Opinion on Denial of Rehearing December 20, 1993.]

      Hardin & Grace, P.A., for appellants.

      Marian M. McMullan, for appellees.
   Jack Holt, Jr., Chief Justice.

This is an appeal of the chancery court’s finding that a restrictive covenant prevents the appellants, Roy, Norma, Kenneth and Kathy Ingram, from placing two homes on their property, Lot 3, Block 5, Kellogg Addition of Pulaski County, Arkansas. We affirm.

The portion of the Kellogg Subdivision at issue is owned and divided as follows: appellees, Sedric Wirt and his wife, Phyllis, live on Lot 4 and Mr. Wirt’s son lives on Lot 5. Appellees, the Henleys, live on Lot 6, and the Wirts’ daughter’s home is located on Lot 7. Each of the lots in blocks 5 and 6 of this addition are approximately 100 feet wide and 1300 feet deep as evidenced by a plat which was placed in evidence as appellants’ Exhibit 4, and reproduced as follows:

Included on the plat and Bill of Assurance for Lot 3 is a restrictive covenant that reads:

Said lot shall be restricted to one family residence only and no business or amusement houses may be built or maintained at any time upon any part of said lot, and this clause shall be taken to include boarding houses, tenement houses, inns, hotels, eating houses, clubs and restaurants.

A similarly worded, though not duplicate, version of this covenant is included in the plats and Bills of Assurance for Lots 4,7,8,9,12 and 13 (although Lots 12 and 13 are listed as being in the Sylvan Acres subdivision rather than in Kellogg). According to these documents, all of these lots were developed by Metropolitan Trust Company.

Mrs. Bessie Rea, Roy Ingram’s mother, owned Lot 3 in Kellogg Addition. Her frame home was located on the north one-third of the lot. In October of 1973, she deeded the south two-thirds of Lot 3, Block 5 (3B) to her son and daughter-in-law, Roy and Norma.

In 1975 the neighbors, the Wirts and the Henleys, gave Mr. and Mrs. Ingram permission to move a house onto the south end of Lot 3 so that Roy Ingram could, take care of his ailing mother. This approval was given despite the existence of the restrictive covenant forbidding more than one home per lot in the subdivision. As Sedric Wirt explained during his testimony at the trial, “We agreed to do this because we were trying to be good neighbors.” The Ingrams moved a house on a transport trailer across the Wirt property onto the south end of Lot 3 in 1975 — the house was later remodeled with brick veneer, and a swimming pool was placed behind the house some time later.

In May 1983 the Ingrams purchased the north one-third of Lot 3 from Mrs. Bessie Rea. Mrs. Rea subsequently died, and on April 1, 1989 her frame home burned beyond use and was later torn down. Shortly after the home burned, Mr. Wirt approached Mr. Roy Ingram concerning buying the north one-third of Lot 3 where the house had been situated, but Mr. Ingram refused. In May 1989, the Roy Ingrams sold the north one-third of Lot 3 to their son and daughter-in-law, Kenneth and Kathy Ingram.

Mrs. Roy Ingram mentioned to Ms. Wirt that her son would be putting a manufactured home on the north end of the property in place of the house which had burned down. The Wirts objected to this arrangement as did the Henleys, and as a result, they filed a lawsuit in Pulaski County Chancery Court asking that an injunction be issued against the Ingrams to prevent them from violating the restrictive covenant by placing a second residence on Lot 3. Two days before the trial, the Ingrams filed a replat and new Bill of Assurance as to this lot, replatting it into Lots 3A and 3B and amending the Bill of Assurance to allow one residence per each subdivided lot.

Mr. Basil Shoptaw, a civil engineer and land surveyor with Thomas Engineering Company, testified for the Ingrams. He stated that he had been involved in the replatting of their property. In order to accomplish this task, he had to go to the City of Sherwood for permission — an approval hearing was held on this issue, and the replatting was approved. A new Bill of Assurance was issued allowing two single-family residences on the original Lot 3.

After hearing Mr. Shoptaw’s testimony as well as that of the parties, the chancellor determined that there was a common scheme of development at the time that the Kellogg Addition was formed that mandated only one single family residence per lot. In her final order, the chancellor provides an explanation for her decision:.

3. Neither the doctrines of laches or estoppel were successfully shown by Defendants. The evidence at trial showed the Plaintiffs had previously acquiesced to two residences on the Defendants’ lot, one of which burned, however, this did not constitute laches which would bar the Plaintiffs from seeking removal of the mobile home presently on the lot. The Court finds that the Plaintiffs delay in resorting to court action was not unreasonable under the circumstances and the Defendants did not suffer a detrimental change in position necessary to sustain the defense of laches.
4. The evidence presented at trial supports a finding that there exists a general plan of development in Kellogg Addition that, at the time Kellogg Addition was formed, a common scheme existed for one single family residence per lot.
5. The Court finds there are two residences located on Defendants’ lots.
6. The Court finds the Plaintiffs are entitled to enforcement of the restrictive covenants in the Bill of Assurance which restricts one single family residence per lot in Kellogg Addition.
7. The Defendants cannot defeat the restrictive covenants by simply obtaining a replat from the planning commission subdividing their lot. Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987). The Court finds the facts in Constant v. Hodges are virtually identical to this case and, further, that Constant is controlling.
8. The Defendants are, therefore, hereby enjoined from further violations of restrictive covenants contained in the Bill of Assurance by Metropolitan Trust Company, Grantor, to the Public, filed for record.....and ordered to remove the second home from their lot within 30 days of entry of this Final Order.

As a result of this order, the Ingrams filed a Motion for Reconsideration.

Thereafter, the Ingrams filed a motion, pursuant to Ark. R. Civ. Pro. 60 (b), to vacate judgment. In a hearing on this motion, they attempted to introduce aerial photographs of the Kellogg Subdivision, one of which was made in 1974. These photographs were obtained from the Highway Department. The court refused admission of this evidence but did allow the Ingrams to proffer it.

On appeal, we consider the evidence in a light most favorable to the appellee. Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987). This court tries chancery cases de novo on the record and does not reverse a finding of fact made by the chancellor unless it is clearly erroneous. Merchants & Planters Bank & Trust Co. v. Massey, 302 Ark. 421, 790 S.W.2d 889 (1990).

Replat Restrictive Covenant

The Ingrams first argue that the chancellor erred in holding that they could not replat their lot and that they were governed by the restrictive covenant. In finding for the plaintiffs/appellees, the chancellor relied on Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987). In Constant the appellants attempted to subdivide a 1.73 acre lot in Robin wood Subdivision in Little Rock. The Bill of Assurance provided that the land would be restricted to single-family residences since the bill’s purpose was to carry out a “general plan to develop said lands as a high-class suburban residential property.” Constant, 292 Ark. at 441, 730 S.W.2d at 893. The chancellor found that a general plan of development existed in Robinwood and that, accordingly, the restrictive covenant was enforceable. In making his decision, the chancellor noted a few characteristics of the area:

The character and nature of the Robinwood Subdivision referred to in the Bill of Assurance signed by Cecil Gibson and Vera Gibson has been and is single-family residences consisting of very valuable, large homes on large lots. The nature of the neighborhood and this pattern of development have not changed since the lands described in the Bill of Assurance were developed beginning in 1949, and this pattern has continued through the present time. Although there may have been some violations (as alleged by defendants) of some of the provisions of the Bill of Assurance or some of the restrictions contained in deeds subsequently conveying lands subject to the Bill of Assurance, those violations have been minor and they have not destroyed the purpose of the Bill of Assurance or deed restrictions and these violations have not adversely affected the adjoining property owners.

Constant, 292 Ark. at 443, 790 S.W.2d at 894 (emphasis addedj.

The chancellor looked at the character and nature of the neighborhood, the continuity of the pattern of development and whether any major violation of the purpose of the Bill of Assurance had occurred. This court agreed with the chancellor and affirmed his decision. Id.

Applying this test to the facts before us brings the same result. First of all, the permitted violation of the purpose of the Bills of Assurance, although major, was temporary. While it is true that the Wirts and Henleys gave the Ingrams permission to move a second house onto Lot 3 in 1975, this permission was of limited duration. Testimony at trial revealed that the Wirts and Henleys gave their permission only in order for the Ingrams to care for their ailing mother who was up in years and unable to care for herself. Once Mrs. Rea passed away, Mrs. Ingram’s daughter and son moved into Mrs. Rea’s home. Mrs. Henley testified that her family’s reason for not complaining at that point was:

Mrs. Ingram’s daughter and her son moved into the house. We talked about talking to the Ingrams, but Mrs. Ingram’s daughter had cancer, so we didn’t say anything. We felt that she needed to be there close to her mother. She got sicker and she moved back in with her mother and dad in the back of the property. Then it was a rent house for a short time. And we had discussed very definitely that we were going to have to take action about the renters because we could not tolerate the noise. About that time the kids that rented the house moved and the house burned. So we still had hopes that, perhaps, Roy would keep it to have the space or that he would sell it to Mr. Wirt.
I think our expectations were that Mr. and Mrs. Ingram would. . .their children would move away and then it would be a couple there as there is at Mr. Wirt’s house and mine. It hasn’t worked like that. There are lots of people that live in one house with lots of traffic and now it’s moved to the front, to Kellogg, and now it’s going to be more traffic.

Clearly, the Wirts and Henleys gave their permission for placement of the second house on Lot 3 only in order to help their neighbors take care of an ailing family member. Once Mrs. Rea passed away and her home burned down, Lot 3 contained one family residence and was in compliance with its Bill of Assurance. Lot 3 was then in keeping with the common scheme of development in Kellogg Addition.

The Ingrams also argue that there were other violations proven at the trial. We disagree. For example, the Ingrams contend that Lots 12 and 13 of Block 5, which originally were governed by the same restrictive covenant as Lot 3, were transformed into a subdivision containing approximately thirty lots. These lots now have about twenty five to thirty homes on them. While these two lots are only four lots away from the Henley’s property, the original Bill of Assurance for Lots 12 and 13 lists them as being in Sylvan Acres not Kellogg Addition. Thus, these lots are simply not part of the Kellogg Addition. The fact that Metropolitan Trust was a common developer of both subdivisions is of no moment.

After examining the Bills of Assurance provided in the exhibits and noting the same restrictive covenant in all of them, it is easy to see how the Chancellor arrived at the decision that there was a general scheme of development in this area. The primary test for the existence of a general plan of development is whether substantially common restrictions apply to all lots of like character or similarly situated. Jones v. Cook, 271 Ark. 870, 611 S.W.2d 506 (1981).

For their next arguments on appeal, the Ingrams claim that the trial court erred in refusing to hold that either waiver or unclean hands defeat the restrictive covenant. These arguments have no merit.

Waiver

The Ingrams contend that the Henleys and Wirts waived any right to enforcement of the restrictive covenant when they permitted the Ingrams to place the second home on Lot 3.

The Ingrams concede that waiver was not raised in the pleadings but argue that the facts giving rise to this claim were tried with the consent of both parties. In support of this argument, they refer to comments made by the chancellor at trial in which she allegedly “implicitly recognized” the issue of waiver:

Also I’m inclined to rule that neither the doctrine of laches or estoppel prevents the plaintiffs from bringing this case. . . . Clearly they knew about and allowed the home the [sic] be placed on the rear of the lot and so long as that house was there and there was a house in the front I don’t think they could ever have complained about either of those houses because they allowed that to happen. And I recognize that they did it because they felt like the family needed to look after Mrs. Rea and that once Mrs. Rea was dead that they still weren’t too happy about the two houses there but that whether they were happy about it or not they hadn’t gotten any conditions, they’s agreed to it. But now when that, you know, frame house burned down in ‘89,1 think there could be a question about whether or not by agreeing to a second house going on they were forever forbidden to complain about it. But before anything else was — now, I recognize some planning steps may be have been taken, but before anything else was done they talked to the Ingrams and said, you know, we don’t want you to move another house on here. . . .But I think they did serve notice that their agreement to allow two houses on there had been to the houses, the structures, that were there and that. . .anyway, I’m just not inclined, unless somebody shows me a case that’s very explicitly like this, to say that by agreeing to allow the house that the Ingrams now live in to be moved onto the back part of the lot they forever agreed that two houses could be there.

Estoppel and waiver are not synonymous. Black’s Law Dictionary 1417 (5th ed. 1979). However, the two terms are commonly used interchangeably, especially in insurance law. Black’s Law Dictionary, 495 (5th ed. 1979); See Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978). Here, it seems, the chancellor, while referring to estoppel, was actually discussing the defense of waiver. Accordingly, we will address this issue on appeal. Nevertheless, we find that it has no merit.

In Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978), an insurance case in which estoppel and waiver are used interchangeably, we defined waiver as:

[Voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of material facts, does something which is inconsistent with the right or his intention to rely upon that right. The relinquishment of the right must be intentional.

Applying this definition to the facts at hand, it seems that the appellees did not voluntarily abandon the restrictive covenant when they permitted Mr. Ingram to place a second home on Lot 3 so he could care for his mother. Clearly, when the Henleys and Wirts gave their permission for the placement of a second home on the premises in violation of the Bill of Assurance, they did not intend to “forever be deprived of its benefits.” See Stanley. Accordingly, we hold that they did not waive their right to the restrictive covenant.

Unclean Hands

The Ingrams also argue that the trial court should have refused to enforce the restrictive covenant because of the doctrine of unclean hands — in' other words, “equity will not intervene on behalf of a plaintiff whose conduct in connection with the same manner has been unconscientious or unjust.” Merchants and Planters Bank & Trust Co. of Arkadelphia v. Massey, 302 Ark. 421, 790 S.W.2d 889 (1990).

The basis of this argument is that there was some confusion as to whether there was more than one house located on Lot 6 which is owned by the Henleys. Chancellor Brantley adopted the testimony of the appellees, specifically Mrs. Henley, as to the existence of only one house on this lot. The Ingrams contended that there was a rent house on the Wirt’s property which bordered on Lot 6 and the Henley home was located on Lot 6. There was contradictory evidence on this issue, and the Chancellor chose to believe Mrs. Henley when she said there was only one home located on this lot. We will not set aside a chancellor’s finding of fact unless clearly erroneous. Southeast Arkansas Landfill, Inc. v. State, 313 Ark. 669, 858 S.W.2d 665 (1993). Deference is given to the superior position of the chancellor to judge the credibility of witnesses. Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993). In order to overturn the chancellor’s ruling, the appellants must demonstrate that the trial court abused its discretion by making a judgment call that was arbitrary or groundless. Employers Nat’l Ins. Co. v. Grantors, 313 Ark. 645, 855 S.W.2d 936 (1993). The Ingrams have failed to provide proof of such abuse, and we, therefore, hold that their argument fails.

Motion to Vacate Judgment

For their final issues on appeal, the Ingrams contend that the chancery court erred in refusing to admit the aerial photographs during the hearing on the motion to vacate judgment and in denying this motion. At the hearing on the motion to vacate judgment, some three months after the final order in this case was entered, the Ingrams attempted to admit aerial photographs obtained from the Arkansas Highway Department of the Kellogg neighborhood to establish “that a general plan of development had not been applied to all lots of like character to the lot of Defendants in the Kellogg Addition.” The Ingram’s motion to vacate was filed pursuant to Ark. R. Civ. Pro. 60(b) which provides:

Ninety-Day Limitation. To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk.

869 S.W.2d 685

In interpreting the language in Ark. R. Civ. Pro. 60(b) we have said that the “miscarriage [s] of justice” referred to in the rule are a reference to those clerical errors or mistakes described in Rule 60(a). Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991). Rule 60(a) provides:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own motion or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

Such a clerical mistake was not demonstrated to the chancellor. Accordingly, we hold that the chancellor was correct in refusing to admit the aerial photographs. Similar to this argument is the Ingram’s claim that the denial of the Motion to Vacate was error.

In their Motion to Vacate Judgment, the Ingrams stated that the trial court made a mistake in determining that there was a general plan of development in the Kellogg Addition. Other than the aerial photographs — which were not admitted — the Ingrams had nothing more to offer the judge as a basis for vacating the judgment. Under the circumstances, the decision to deny the motion was proper.

Affirmed.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING DECEMBER 20, 1993

Hardin & Grace, P.A., for appellants.

Marian M. McMullan, for appellees.

Jack Holt, Jr., Chief Justice.

In their petition for rehearing, the Ingrams challenge our holding in Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993), by enumerating four points of error in the opinion. We deny the petition but address the errors alleged in order to clarify our analysis.

The Ingrams’ first two assignments of error concern our holdings that there was only one violation of the restrictive covenant and that it was “temporary” in nature when, in fact, the chancellor did not discuss waiver, temporary or otherwise, when reaching her decision in favor of the Wirts and Henleys, and there were in fact, other violations of covenants within the Kellogg Addition.

RESTRICTIVE COVENANT

The Ingrams are correct in part for the chancellor in her findings focused on the circumstances of the acquiescence to the violation of the restrictive covenant stating:

The finding at trial that neither the doctrine of laches nor estoppel prevents the Plaintiffs from seeking enforcement of the restrictive covenant contained in the Bill of Assurance as to the Defendants’ property should not be disturbed. The Plaintiffs’ prior acquiescence to two residences on the Defendants’ lot, one of which burned, does not constitute laches barring the Plaintiffs from seeking removal of the mobile home presently on the lot.

For this reason, we were improvident in characterizing and labeling Ingram’s violation of the restrictive covenant as “temporary.” A more correct statement would have been that there was not a waiver of the restricted covenant in that the Wirts’ and Henleys’ prior acquiescence to the two residences on the Ingrams’ lot, did not constitute laches barring the Wirts and Henleys from seeking removal of the mobile home placed on Lot 3.

Simply put, the facts of this case and our holding can be better stated as follows: The Wirts and Henleys gave the Ingrams permission to move the second house onto Lot 3 only in order for them to care for their ailing, elderly mother. Once Mrs. Rea passed away and her home burned down, Lot 3 contained one family residence and was in compliance with its Bill of Assurance. Taken together, these facts support our holding that the restrictive covenant remains in place. Thus, the Wirts and Henleys merely acquiesced to this violation of the Bill of Assurance' on the part of the Ingrams. Once one of the homes burned and vanished from the premises, the restrictive covenant remained in place. As a result, the Ingrams were precluded by the covenant from placing and maintaining the mobile home as a second residence on their lot.

OTHER VIOLATIONS

The Ingrams claim for the first time in their petition that the record inadvertently contained a Bill of Assurance for Lots 12 and 13 of Sylvan Acres, not Lots 12 and 13 of Kellogg Addition which would have supported their claim of other violations of a Bill of Assurance and that we should now reconsider this substituted item of evidence. This we cannot do for we have to accept the record as it was originally presented to us, and based on this original record, we were correct in our holding that no other violations were proven at trial.

UNCLEAN HANDS

The Ingrams also argue in regard to the equitable defense of unclean hands, we misstated the chancellor’s finding as to the existence of one house per each of the Wirts’ and Henleys’ lots. In this regard, Judge Brantley stated:

I would say there are only a few facts in dispute and I could probably find those, but I’m going to find that Mrs. Henley’s house is totally located on Lot 6.1 recognize that there is a dispute, but nobody got a survey and I have to believe the homeowner is in the far better position to know where her house is and, therefore, I. . .of course, I find her a credible witness.
I’m just going to find as on the lots that the plaintiffs own there is no more than one house per lot, although the ownership of the lots has been. . .is divided. Not one person owns each of these lots.

Tracking the trial court’s opinion, we noted in our opinion that:

The basis of this argument is that there was some confusion as to whether there was more than one house located on Lot 6 which is owned by the Henleys. Chancellor Brantley adopted the testimony of the appellees, specifically Mrs. Henley, as to the existence of only one house on this lot. The Ingrams contended there was a rent house on the Wirt’s property which bordered on Lot 6 and the Henley home was located on Lot 6. There was contradictory evidence on this issue, and the Chancellor chose to believe Mrs. Henley when she said there was only home located on the lot.

Ingram v. Wirt, 314 Ark. 553, 564, 864 S.W.2d 237 (1993).

Rather than summarily state in our opinion, as we did, that the evidence at trial was disputed as to whether or not there was more than one house on Lot 6 at any given time we could have embellished somewhat upon the factual basis of the trial court’s findings and in particular by reciting Mrs. Henley’s testimony:

Our home does not stretch across Lots 5 or 7. Lot 6 is wider than the other two lots and accommodates our home. There are no other homes located on original Lot 6. There are no homes other than Danny Wirt’s on original Lot 5. There are no homes other than Cindy House’s [Wirt’s daughter] on original Lot 7.1 am not aware of any other lots in Kellogg Addition that have two homes on them other than the Ingrams.

Ownership of Lot 6 was indeed divided, however, it is obvious that the chancellor determined that there was only one house per lot as there was testimony at trial indicating that from 1964 until 1989 there was a yellow rent house that bordered on Lots 6 and 7 that was ultimately torn down when Cindy Wirt built her house on Lot 7 and that since there was only one house now located on Lot 6, there was no violation of the restrictive covenants by the Wirts and the Henleys. We do not disagree with the chancellor’s findings in this regard.

A.R.C.P. RULES 60(a) and (b)

In the opinion, we stated, relying on Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991), that the “miscarriage[s] of justice” referred to in 60(b) refer to clerical mistakes or errors as described in Rule 60(a) and that, since a clerical mistake was not demonstrated to the chancellor with regard to the aerial photographs, the chancellor was correct in refusing to admit them. Now, the Ingrams claim that in so holding, we blurred the distinction between the two rules. We disagree, for as we explained in Phillips, supra:

Rule 60(a) does grant authority in the trial court to act on its own motion to correct clerical errors and mistakes. Rule 60(b) then provides ninety days in which the trial court may, on its own motion or any party’s motion, correct the error or “prevent the miscarriage of justice.” The reference to certain miscarriages of justice in Rule 60(b) is a reference to those clerical errors or mistakes described in Rule 60(a).

Phillips, 305 Ark. at 367, 807 S.W.2d at 925.

ORAL ARGUMENT ON PETITION FOR REHEARING

Lastly, the-Ingrams submit that they should be permitted to argue their petition orally before the court. Oral argument on a petition for rehearing is not authorized under our rules. See Ark. Sup. Ct. R. 2-3(i). Thus, this request is denied as is the petition for rehearing.