text:
    Bobby PICKETT v. STATE of Arkansas
    CR 95-145
    902 S.W.2d 208
    Supreme Court of Arkansas
    Opinion delivered July 3, 1995

      Val P. Price, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Senior Appellate Advocate, for appellee.
   Robert H. Dudley, Justice.

Appellant, a habitual offender, was arrested for selling cocaine. He was charged and, as he was preparing for trial, interpreted the new presumptive sentencing guidelines, Ark. Code Ann. § 16-90-803 and -804 (Supp. 1993), to make him eligible for a sentence of only fifty-four months, although the statutory range for sale of cocaine is from ten to sixty years. Ark. Code Ann. § 5-64-401 (a)(l)(i) (Repl. 1993). However, he observed that the presumptive sentencing guidelines do not apply to jury trials. Ark. Code Ann. § 16-90-803 (a)(1) and (b)(4). He did not want to plead guilty, and so he asked for a non-jury trial to take advantage of the perceived difference in sentence ranges. The State objected and demanded a jury trial.

Appellant countered that, because the State must assent to the waiver of a trial by jury, see A.R.Cr.P. Rule 31.1, the sentencing standards in actuality create two classes of people, those who plead guilty and receive lesser sentences under the guidelines, and those who plead not guilty and are tried by a jury, and, when found guilty, receive a greater sentence. He concluded that the two classes constitute a denial of equal protection, and that, for the sentencing guidelines to pass Constitutional muster, both classes must be subject to the presumptive sentences. The trial court denied the motion.

Appellant next requested jury instructions that would have charged the jury that the presumptive sentence for the charged offense is fifty-four months and that the appropriate sentence ranged from fifty-four months to sixty years. He tendered a verdict form that would allow the jury to sentence him in a range from fifty-four months to sixty years. The trial court denied the proffered instructions and verdict form.

The jury found appellant guilty and recommended a sentence of sixty years. Before the trial court pronounced sentence, appellant asked the court to use the sentencing guidelines. The trial court denied the request, sentenced appellant to sixty years imprisonment, and, accordingly, entered the judgment of conviction. We affirm.

Appellant first argues that the free exercise of his Constitutional right to a jury trial is impaired by the possibility of receiving a greater sentence if tried by a jury rather than a judge. See United States v. Jackson, 390 U.S. 570 (1968). He argues that the presumptive standards apply only to guilty pleas and bench trials and that the sentencing guidelines have created two classes of people; those who plead guilty and those who demand their right to a jury. He further argues that since a jury trial is a fundamental right, a statute that burdens the right is subject to strict scrutiny. See Clements v. Fashing, 457 U.S. 957 (1982); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). The argument embraces a basic misunderstanding of the applicable statutes.

The sentencing guidelines do not burden the fundamental right to a jury trial because the statutory minimum and maximum ranges for a sentence always override the presumptive sentences. Section 16-90-803(b)(3)(C) provides: “The statutory minimum or maximum ranges for a particular crime shall govern over a presumptive sentence if the presumptive sentence should fall below or above such ranges.” Therefore, the statutes do not allow a judge to sentence a defendant to a fifty-four month sentence when the statutory minimum is ten years, as in this case.

Appellant next argues that the trial court erred in refusing his proffered instructions and verdict form. The argument is without merit for the reason set out above. Appellant was not entitled to a fifty-four month presumptive sentence because the statutory minimum is ten years, and a trial court should not give an instruction that incorrectly states the law. Cellars v. State, 214 Ark. 326, 216 S.W.2d 47 (1948).

Appellant’s final point is that the trial court erred in setting the sentence recommended by the jury. He argues that the trial court should have used the presumptive guidelines. We summarily dismiss the argument as the presumptive standards do not apply to sentences recommended by a jury. Ark. Code Ann. § 16-90-803(b)(4).

Affirmed.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Robert Clayton WYNN v. Robert P. REMET and John Lewis McGehee
    95-62
    902 S.W.2d 213
    Supreme Court of Arkansas
    Opinion delivered July 3, 1995

      Kenneth A. Harper, for appellant.

      Robert P. Remet and John Lewis McGehee, for appellees.
   David Newbern, Justice.

The issue before us is whether the Trial Court erroneously declined to award attorney’s fees. Robert Clayton Wynn, the appellant, contends he was entitled to attorney’s fee awards pursuant to Ark. Code Ann. § 16-22-309 (Repl. 1994) because there was a complete absence of a justiciable issue of either law or fact raised in counterclaims against him by Robert R Remet and John Lewis McGehee, the appellees. In accordance with subsection (d) of the statute, we have reviewed the record de novo, and we agree with Mr. Wynn; therefore, we reverse the Trial Court’s decision and remand the case.

Robert R Remet is an attorney. He is also a tenant on land owned by John Lewis McGehee. Mr. Remet had a boundary line dispute with neighboring land owners named Brown. He called another attorney, Kenneth Harper, who represented the Browns, seeking recommendation of a surveyor. Mr. Harper recommended Mr. Wynn.

When Mr. Wynn went on Mr. McGehee’s land, after agreeing with Mr. Remet to conduct the survey, Mr. McGehee challenged his presence but ultimately agreed to allow the survey after learning that Mr. Remet had hired Mr. Wynn. Mr. McGehee distrusted Mr. Harper, and there was disputed testimony over whether he asked Mr. Wynn at the outset if he was related to Mr. Harper and whether and what Mr. Wynn might have answered to that question.

Mr. Wynn prepared a plat showing the location of the disputed line and billed Mr. Remet $510. According to Mr. Remet, if Mr. Wynn had answered questions about the survey he would have paid the bill. Mr. Remet testified he thought the bill was to have been $350. Mr. Wynn testified he had told Mr. Remet $350 was the minimum and that it might be more.

Mr. Wynn filed his initial complaint in the Small Claims Division of the Star City Municipal Court on May 4, 1992, for $510. The complaint alleged that Mr. Remet, acting as attorney for Mr. McGehee, had hired him (Wynn) and that Mr. Remet and Mr. McGehee had refused to pay. In their answers, Mr. Remet and Mr. McGehee denied owing Mr. Wynn “anything.” They also counterclaimed.

Mr. McGehee sought $141,575.25, as damages, costs, and attorney’s fees, alleging Mr. Wynn had maliciously clouded the title to his land and was liable for deliberate infliction of mental distress, abuse of process, and trespass. Mr. Remet sought $41,500.00, alleging that Mr. Wynn had close connections with the neighbors with whom the dispute had occurred and had created a false survey. He alleged Mr. Wynn’s suit was an abuse of process filed to inflict emotional harm and “corrupt prosecution.”

The case was transferred to Circuit Court, and Mr. Wynn filed an amended complaint, renewing his contract claim of $510 and alleging that the counterclaims were without justiciable issue in either law or fact and that he should be entitled to attorney’s fees and costs.

Prior to trial, Messrs. Remet and McGehee offered to settle the dispute by dismissing their counterclaims and tendering $510.00 as payment for the survey. Mr. Wynn refused, the counterclaims were not dismissed, and the case was tried on the merits.

Mr. Remet testified he became suspicious of the results of the survey after he discovered that Mr. Wynn was Kenneth Harper’s first cousin. He said that his suspicions deepened after Mr. Wynn refused to return his calls when he wanted an explanation of the survey. Mr. Wynn’s wife testified she called Mr. Remet about the bill and he said he would pay “after court” and did not otherwise complain or question the bill.

Daniel Robison, another land surveyor, first spoke with Mr. Remet in August, 1993. Mr. Remet asked him to do a second survey of the line and not to consult Mr. Wynn. Mr. Robison testified that the plat prepared by Mr. Wynn was substandard because it showed a “calculated corner” without stating the method of calculation. He concluded it was apparent that a corner marker had been moved some 13 feet, but his ultimate calculation placed the boundary line within one foot of the place Mr. Wynn had found it to be. He said Mr. Wynn’s survey was thus, according to minimum surveying standards, an accurate survey. Mr. Robison presented that result to Mr. Remet in October of 1993.

In his testimony, Mr. Remet said that after receiving Mr. Robison’s survey result he had “no problem” with Mr. Wynn’s survey.

As a general rule, attorney’s fees are not allowed in Arkansas unless expressly authorized by statute. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988). However, in any civil action in which the court having jurisdiction finds there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court may award an attorney’s fee in an amount not to exceed $5,000, or ten percent of the amount in controversy. Ark. Code Ann. § 16-22-309 (Repl. 1994); Lawson v. Sipple, 319 Ark. 543, 893 S.W.2d 757 (1995).

Section 16-22-309 provides, in pertinent part:

(a)(1) In any civil action in which the court having jurisdiction finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court shall award an attorney’s fee in an amount not to exceed five thousand dollars ($5,000), or ten percent (10%) of the amount in controversy, whichever is less, to the prevailing party unless a voluntary dismissal is filed or the pleadings are amended as to any nonjusticiable issue within a reasonable time after the attorney or party filing the dismissal or the amended pleadings knew, or reasonably should have known, that he would not prevail.
* * *
(b) In order to find an action, claim, setoff, counterclaim, or defense to be lacking a justiciable issue of law or fact, the court must find that the action, claim, setoff, counterclaim, or defense was commenced, used, or continued in bad faith solely for purposes of harassing or maliciously injuring another or delaying adjudication without just cause or that the party or the party’s attorney knew, or should have known, that the action, claim, setoff, counterclaim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.

The Trial Court announced the ruling from the bench. He awarded Mr. Wynn $510 plus costs and an attorney’s fee of 10% of that amount against Mr. Remet but not against Mr. McGehee, as it was found that Mr. McGehee had not contracted for the survey. Mr. Wynn’s claims for attorney’s fees in accordance with § 16-22-309 were denied. Discussing Mr. Wynn’s claim for attorney’s fees pursuant to the statute, the Trial Court reviewed the history of the animosity among the parties and concluded Mr. McGehee had not acted maliciously in filing the $141,575.25 claim because he was “upset” at the time as he thought he “got a surveyor that was a friend of the Harpers that [he] didn’t want.”

With respect to Mr. Remet it was found that he thought the price for the survey was to be $350 and it turned out to be $510. In addition, Mr. Remet later learned, as the Trial Court stated, “that Mr. Wynn was a friend of Harper, and he made a lot of statements that... he has not substantiated ... by proof today.” The Trial Court commented further, in reaching his conclusion that Mr. Remet’s claims were not totally baseless, that Mr. Remet had attempted to settle by paying Mr. Wynn’s full $510 claim without success, “And Remet said, well, I’m not going into court, then, totally empty; I’m not going to give away everything if he’s not willing to give any at all.”

Nothing in the evidence cited in the Trial Court’s ruling or elsewhere in the record supports any conclusion other than that, when this case went to trial, the counterclaims were completely baseless. Mr. Remet admitted he knew, through his second survey by a disinterested surveyor, that Mr. Wynn’s survey was accurate.

As we read subsection (b) of the statute, a counterclaim “lacking a justiciable issue of law or fact” is one “commenced or used in bad faith” for one of two purposes, that of “harassing or maliciously injuring another or delaying adjudication without just cause. . . .” Stated in the disjunctive is a further situation justifying the fees, i.e., “or that the party or the party’s attorney knew, or should have known, that the . . . counterclaim . . . was without any reasonable basis in law or in equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.”

Both counterclaims contained allegations of abuse of process and the intentional infliction of emotional distress. To establish intentional infliction of emotional distress, the plaintiff is required to satisfy four elements: (1) the actor intended to inflict emotional distress or willfully and wantonly knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous, was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) the actions of the defendant were the cause of the plaintiff’s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. AMI Civil 3rd, 404 (1989).

The elements of the tort of abuse of process are (1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success, but (2) perverted to accomplish an ulterior purpose for which it was not designed, and (3) a willful act in the use of process not proper in the regular conduct of the proceeding. Harmon v. Careo Carriage Corp., 320 Ark. 322, 895 S.W.2d 938 (1995).

Whether or not the counterclaims were filed with the purpose of delaying Mr. Wynn’s municipal court claim of $510 without just cause, it is very clear that Mr. Remet knew or should have known that he could not prove all the elements or perhaps even one element of either of the torts he and Mr. McGehee claimed Mr. Wynn committed against them. While Mr. Remet’s attempt to settle the matters were perhaps laudable, we find no justification for his taking the counterclaims to trial when the settlement failed so that he would not be “totally empty” before the Trial Court.

Reversed and remanded for proceedings consistent with this opinion.


author: Donald L. Corbin, Justice.

text:
    Joanne BAKER v. Philip E. MILAM, D.D.S.
    94-961
    900 S.W.2d 209
    Supreme Court of Arkansas
    Opinion delivered July 3, 1995

      McKinnon Law Firm, by: Laura J. McKinnon, for appellant.

      Friday, Eldredge & Clark, by: Gregory D. Taylor, for appellee.
   Donald L. Corbin, Justice.

Appellant, Joanne Baker, appeals an order of the Newton County Circuit Court granting summary judgment to appellee, Philip E. Milam, D.D.S., on her claim for dental malpractice. The trial court applied this court’s decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), and ruled appellant’s claim was barred by the two-year statute of limitations, Ark. Code Ann. § 16-114-203 (Supp. 1993). Appellant alleges three points of error in that ruling. The Arkansas Court of Appeals certified this case to us for statutory interpretation. Jurisdiction is therefore properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(3), (d)(1). We find no error and affirm the summary judgment.

Our standard for review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entitled to judgment as a matter of law. Ford Motor Credit Co. v. Twin City Bank, 320 Ark. 231, 895 S.W.2d 545 (1995). We view all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. However, when the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet that proof with proof showing a genuine issue as to a material fact. Id.

Appellant filed her complaint for dental malpractice on May 18, 1993. She alleged that, on April 15, 1991, appellee negligently removed a tooth, thereby causing the sectioning of the inferior alveolar vascular bundle. Her complaint stated that, on March 4, 1993, she served appellee with notice of her intent to sue. See Ark. Code Ann. § 16-114-204(a) (Supp. 1993). After raising the statute of limitations as an affirmative defense, appellee moved for summary judgment arguing the statute of limitations expired on April 15, 1993, two years from April 15, 1991, the date of alleged injury. In her response to the motion for summary judgment, appellant did not dispute the facts, but argued appellee was not entitled to judgment as a matter of law since appellant had complied with the sixty-day notice requirement of section 16-114-204(a), and was therefore entitled to the ninety-day extension of the limitations period authorized in section 16-114-204(b). In granting appellee’s motion, the trial court ruled that both the sixty-day notice provision and the ninety-day extension provision had been invalidated pursuant to Weidrick, 310 Ark. 138, 835 S.W.2d 843.

Because appellant’s first two points for reversal are so closely related, we consider them together. First, appellant argues that, although the sixty-day notice of intent to sue is no longer required pursuant to Weidrick, 310 Ark. 138, 835 S.W.2d 843, it may be voluntarily given by a plaintiff. Second, she contends that a plaintiff who voluntarily complies with the sixty-day notice provision is entitled to the ninety-day extension of the limitations period as that would achieve the legislative purpose underlying the statute, namely the settling of potential lawsuits. This court has previously answered both these arguments conclusively in Thompson v. Dunn, 319 Ark. 6, 889 S.W.2d 31 (1994).

The facts of Thompson, 319 Ark. 6, 889 S.W.2d 31, are remarkably similar to the facts of the present case. In Thompson, as in the present case, the plaintiff complied with the notice requirement of section 16-114-204(a) and also satisfied the ninety-day grace period in section 16-114-204(b), but did not meet the two-year period set forth in section 16-114-203. We held that even when a plaintiff has complied with the sixty-day notice provision of section 16-114-204(a) and the ninety-day extension of the limitations period in section 16-114-204(b), the ninety-day grace period in section 16-114-204(b) remains invalidated pursuant to Thomas v. Cornell, 316 Ark. 366, 872 S.W.2d 370 (1994), and Parmley v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994), such that the two-year limitations period set forth in section 16-114-203 is controlling. Our holding in Thompson, that the two-year limitations period is controlling notwithstanding compliance with section 16-114-204, was based on the following statement by this court in Thomas:

it is clear that the notice requirement of section (a) [of section 16-114-204] was a condition of section (b), which provided an extension to the two-year statute of limitations. Thus, these sections are dependent upon one another, and, accordingly, to have held in Weidrick that section (a) is superseded in its application is to render the entire statute superseded.

Id. at 371, 872 S.W.2d at 373.

In summary, the entire statute formerly known as section 16-114-204 has been superseded and the sixty-day notice requirement and its accompanying ninety-day grace period no longer exist. Thompson, 319 Ark. 6, 889 S.W.2d 31; Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994); Parmlev. 317 Ark. 52. 876 S.W.2d 243; Thomas. 316 Ark. 366, 872 S.W.2d 370; Weidrick, 310 Ark. 138, 835 S.W.2d 843. Consistent with Thompson, we conclude the two-year limitations period of section 16-114-203 is controlling in the present case, notwithstanding appellant’s compliance with section 16-114-204. Thus, the trial court did not err in concluding appellee was entitled to judgment as a matter of law based on the expiration of the two-year period.

As her third point for reversal, appellant contends Weidrick and its progeny were erroneously applied retroactively to her case since the date of appellee’s alleged malpractice occurred prior to the Weidrick decision. Weidrick was decided on June 29, 1992. Appellant filed her complaint almost one year later on May 18, 1993. In oral argument, appellant extended this argument to include a claim that she should receive the benefit of the ninety-day extension since it was not held invalid until Thomas, 316 Ark. 366, 872 S.W.2d 370, which was decided on March 21, 1994, almost a year after she filed her complaint.

Appellant’s argument is without merit for two reasons. First, this court held in Thomas that the entirety of section 16-114-204 was superseded as of the Weidrick decision. Thomas, 316 Ark. at 371, 872 S.W.2d at 373. Thus, the claim appellant raised in oral argument is based on a false premise. Second, both the Weidrick and Thomas cases had been decided when the trial court entered its decision in this case.

We discern the basic issue to be the propriety of the retrospective application of a decision of this court. Appellant cites Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789 (1986), and contends we should deviate from our long-standing practice of applying our decisions retrospectively. In Wiles, this court applied one if its overruling decisions prospectively because it found the parties had justifiably relied on the old rule of law. However, we find no such justifiable reliance in the present case. As appellee correctly observes, this court applied the law enunciated in the Weidrick case to the parties thereto. In addition, we observe this court has consistently applied Weidrick to suits filed after June 29, 1992, the date Weidrick was decided, but based on alleged acts of malpractice occurring prior to June 29, 1992. See, e.g., Thompson, 319 Ark. 6, 889 S.W.2d 31. We see no reason to engage in selective prospective application of Weidrick and its progeny to this case and thereby deviate from our established practice of applying Weidrick retrospectively. To do so would violate the principle of treating similarly situated parties the same.

In summary, the trial court correctly applied the decisional law of this court as it existed when it decided appellant’s case. Accordingly, we find no error in the trial court’s order granting summary judgment to appellee.

The judgment is affirmed.

Roaf, J., not participating.


text:
    A.P. LEONARDS d/b/a Carabeef Ranch v. E.A. MARTIN MACHINERY COMPANY
    95-9
    900 S.W.2d 546
    Supreme Court of Arkansas
    Opinion delivered July 3, 1995
    [Rehearing denied September 11, 1995.]

      Burrow & Sawyer, by: Stephen P Sawyer, for appellant/crossappellee. ,

      Davis & Goldie, by: Steven B. Davis, for appellee/crossappellant.
   Donald L. Corbin, Justice.

Appellant, A.P. Leonards d/b/a Carabeef Ranch (Leonards), appeals an order of the Benton County Chancery Court awarding a money judgment to appellee, E.A. Martin Machinery Company (Martin Machinery), for repairs Martin Machinery made to Leonards’s bulldozer. Martin Machinery cross-appeals from that part of the order declaring the repairmen’s lien statutes, Ark. Code Ann. §§ 18-45-201 to -207 (1987), unconstitutional as violative of both federal and state due process provisions set forth in U.S. Const, amend. 14 and Ark. Const, art. 2, § 8, respectively. Jurisdiction of this case is properly in this court as the constitutionality of a statute is questioned. Ark. Sup. Ct. R. l-2(a)(3).

BACKGROUND FACTS

Testimony at trial revealed the following facts. In November 1992, Leonards contacted Martin Machinery concerning possible repairs to Leonards’s 1965 model Caterpillar D8H bulldozer. Joe Bill Morris, then a field service mechanic for Martin Machinery, went to Carabeef Ranch and began discussing the bulldozer’s problems with both Leonards and the ranch foreman, Jim Williamson. Morris suggested the bulldozer be transported to Martin Machinery’s shop so the repairs could be done there. The bulldozer was transported to the shop where Martin Machinery made repairs to it for which Leonards was billed in the sum of $19,284.53.

Leonards questioned the amount of the bill as he thought it exceeded the current value of the bulldozer. Testimony from three witnesses placed the value of the bulldozer between $14,000.00 and $20,000.00. Leonards and Martin Machinery unsuccessfully attempted to reach a compromise on the repair bill. Pursuant to sections 18-45-201 to -207, Martin Machinery sent Leonards a notice dated July 9, 1993 of its intent to sell the bulldozer at public sale on July 31, 1993.

On July 30, 1993, Leonards initiated this suit by filing a petition in chancery court to enjoin the sale. Martin Machinery refrained from the sale, but answered the complaint in equity and counterclaimed for the amount of its repair bill, attorneys’ fees, costs, and interest. In its answer, Martin Machinery asserted it was maintaining possession of the bulldozer in accordance with the repairmen’s lien authorized in section 18-45-201. Leonards amended his petition twice to include a request that the repairmen’s lien statutes be declared unconstitutional, a request for damages for lost use and wrongful possession of the bulldozer, and a request for damages for Martin Machinery’s negligence in failing to advise Leonards of the costs of the repairs and in making the repairs without authorization from Leonards. A Deputy Attorney General for the State of Arkansas notified the trial court of the Attorney General’s receipt of Leonards’s second amended complaint as required by Ark. Code Ann. § 16-lll-106(b) (1987), and informed the trial court that the Attorney General would not participate in the defense of the constitutionality of the repairmen’s lien statutes.

After trial, the chancellor entered an order finding the repairmen’s lien statutes unconstitutional, but dismissing Leonards’s claims for damages. In addition, the chancellor awarded Martin Machinery attorneys’ fees, interest, and the amount of the repair bill less $750.00 for unjustified expenses. The order did not address the issue of possession of the bulldozer.

Leonards’s appeal and Martin Machinery’s cross-appeal followed the entry of the trial court’s order. We consider the cross-appeal first, as resolution of that question determines the need to address certain issues raised on direct appeal. See Nabholz Constr. Corp. v. Graham, 319 Ark. 396, 892 S.W.2d 456 (1995).

CROSS-APPEAL

Martin Machinery challenges the trial court’s finding that the repairmen’s lien statutes are unconstitutional as violative of the due process clauses in the United States and Arkansas Constitutions. The trial court ruled the repairmen’s lien statutes violated both state and federal due process provisions because they did not provide the property owner with a right of replevin or conversion, or a hearing, or a right to post bond in order to obtain possession prior to the sale. In ruling the repairmen’s lien laws unconstitutional, the trial court relied on Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978), and decisions of this court holding this state’s statutes on attachments, garnishments, and execution of judgments unconstitutional for lack of due process. See, e.g., Duhon v. Gravette, 302 Ark. 358, 790 S.W.2d 155 (1990); McCrory v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988); see also Davis v. Paschall, 640 F. Supp. 198 (E.D. Ark. 1986).

Martin Machinery makes several arguments on cross-appeal of which we consider only that concerning state action, as reversal is required on that point. Martin Machinery cites Flagg Bros., 436 U.S. 149, and argues there was no state action in this case because there was no participation by any state officials. We agree with Martin Machinery and conclude the trial court’s interpretation of Flagg Bros, and reliance on our case law on garnishment, attachment, and execution statutes was erroneous. Necessarily, we must consider separately the state action issue with respect to federal due process analysis and state due process analysis.

In the context of federal due process analysis, the issue of state action is well-settled in the area of state statutes on creditor’s remedies and similar statutes. Citing with approval its decision in Flagg Bros., 436 U.S. 149, a case involving New York’s version of the Uniform Commercial Code provision for a warehouseman’s lien, § 7-210, the United States Supreme Court has stated that “[p]rivate use of state-sanctioned private remedies or procedures does not rise to the level of state action.” Tulsa Prof. Collection Servs. v. Pope, 485 U.S. 478, 485 (1988). The Supreme Court went on to state that “when private parties make use of state procedures with the overt, significant assistance of state officials, state action may be found.” Id. at 486. Thus, we observe a significant distinction between cases involving actions taken by or with the overt assistance of state officials and those that do not involve any action or assistance by state officials. The former class of cases may include, among others, procedures for attachment or execution of a judgment as those procedures necessarily require state action by a judge or sheriff or both. For example, in an attachment case, a creditor must first obtain a writ of attachment from a court and then have that writ executed by a sheriff. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). The latter class of cases may include cases such as the instant one where no action by a state official was taken inasmuch as Martin Machinery asserted its possessory lien pursuant to statute, but used no assistance from any state official in so doing. See, e.g., Flagg Bros., 436 U.S. 149. The Pope Court’s classification was more recently relied upon by the Supreme Court in Connecticut v. Doehr, 501 U.S. 1 (1991).

Therefore, we hold that, with respect to the application of federal due process analysis to this case, no state action has occurred, thus the deprivation of Leonards’s property interest is not protected by the Fourteenth Amendment. While ownership is a significant interest in property, Mitchell v. W.T. Grant Co., 416 U.S. 600, 604 (1974), it is a property interest that the Fourteenth Amendment protects only from deprivations by state action, not by private action. Pope, 485 U.S. at 485. The trial court misinterpreted Flagg Bros, and overlooked the distinction between private parties who utilize overt assistance from state officials and private parties who do not make use of state officials when relying on statutory remedies for settling a dispute. The trial court therefore erred in holding our repairmen’s lien laws unconstitutional as applied in this case for violating federal due process requirements. We would reach an entirely different result, of course, had Martin Machinery used the assistance of any state official to retain possession of the bulldozer or to effect its sale.

Turning now to consideration of the state action issue in the context of due process under the Arkansas Constitution, we begin with this court’s determination of state action in South Central Dist. of the Pentecostal Church of God of America, Inc. v. Bruce-Rogers Co., 269 Ark. 130, 599 S.W.2d 702 (1980). In Bruce-Rogers, this court held that the Arkansas mechanics’ and materialmen’s lien statutes, currently codified as Ark. Code Ann. §§ 18-44-101 to -133 (1987 & Supp. 1993), did not violate either federal or state due process provisions. On the Arkansas constitutional question, this court observed, without discussion, that state action was involved in the lien procedures there at issue. Bruce-Rogers, 269 Ark. at 139, 599 S.W.2d at 705. However, the issue of state action was not raised in that case, and, thus, was an issue this court passed upon sub silentio. This court has never held itself bound by matters upon which it passed sub silentio, Ellison v. Oliver, 147 Ark. 252, 259, 227 S.W. 586, 588 (1921), nor has the United States Supreme Court, Harper v. Virginia Dept. of Taxation,_U.S._, 113 S. Ct. 2510 (1993). As such, we are not bound by the statement of state action in Bruce-Rogers, and consider the merits of that issue here since it is properly raised in this case.

When engaging in state due process analysis, this court has used a balancing test of competing interests somewhat similar to the federal test enunciated in Mathews v. Eldridge, 424 U.S. 319 (1976). See, e.g., Bruce-Rogers, 269 Ark. 130, 599 S.W.2d 702. Consistent therewith, for purposes of determining whether one has been deprived of property in violation of the Arkansas Constitution’s due process provision, article 2, § 8, we adopt the analysis of state action as enunciated in the federal context by Lugar, 457 U.S. at 937. Two requirements, therefore, must be met before we will find state action:

First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.... Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.

Id. The second requirement of the foregoing test has not been met in this case. We therefore conclude no state action was taken in this case, and the trial court erred in holding the repairmen’s lien laws at issue here were unconstitutional as violative of the due process clause of the Arkansas Constitution.

On cross-appeal, we reverse and dismiss the trial court’s decision declaring the repairmen’s lien laws unconstitutional on both state and federal due process grounds.

DIRECT APPEAL

Leonards alleges four points of error on direct appeal. We find no error and affirm the judgment on direct appeal.

For his first point of error, Leonards contends the trial court erred in not awarding him damages for wrongful detention of the bulldozer after declaring the repairmen’s lien statutes unconstitutional. This point is premised upon the trial court’s erroneous finding that the lien statutes are unconstitutional. Our holding on cross-appeal that the lien statutes are indeed constitutional therefore renders moot any claim by Leonards for wrongful detention of the bulldozer. With few exceptions not applicable here, we do not address moot issues. Wright v. Keffer, 319 Ark. 201, 890 S.W.2d 271 (1995).

Second, Leonards challenges the amount of damages awarded to Martin Machinery on its counterclaim. Leonards contends the trial court erred in finding the amount of the repair bill to be fair and reasonable and in awarding Martin Machinery the amount of the repair bill rather than the amount by which the repairs increased the market value of the bulldozer.

Relying on Hawkins v. Delta Spindle of Blytheville, Inc., 245 Ark. 830, 434 S.W.2d 825 (1968), Leonards argues that Martin Machinery failed to prove its damages were fair and reasonable. There, this court stated that:

[w]here labor or material is furnished by a party and no price is agreed upon, the law will imply an agreement to pay what it is worth. If a contract makes no statement as to the price to be paid for services, the law invokes the standard of reasonableness and the fair value of the services is recoverable.

Id. at 834, 434 S.W.2d at 827 (citations omitted). Since the chancellor held any lien Martin Machinery may have had unconstitutional, the chancellor’s award to Martin Machinery was presumably made on the basis of its counsel’s claim in closing argument to recover on the repair bill, or alternatively, in quantum valebant. Therefore, Leonards has cited us to the correct measure of damages to be applied in this case on a theory of implied contract. Hawkins, 245 Ark. 830, 434 S.W.2d 825. Despite Leonards’s assertion to the contrary, Hawkins does not stand for the proposition that damages from an implied contract for repairs are measured by the increase in value of the repaired property.

The burden was therefore on Martin Machinery to prove that the invoiced amount for which it sought recovery, $19,284.53, was the fair and reasonable value of the parts and labor furnished. Hawkins, 245 Ark. 830, 434 S.W.2d 825. Martin Machinery’s invoice, which totaled $19,284.53 and was itemized by amount according to labor and parts for the specific repair jobs made to the bulldozer, was admitted into evidence. During its case, Martin Machinery introduced testimony by its branch manager that there was nothing unusual about the invoice and that, according to his memory, its hourly rate for labor was $38.00 at the time in question. The mechanic testified as to the repairs made to the bulldozer. He stated he went to Carabeef Ranch to diagnose the problems, had the bulldozer hauled to Martin Machinery’s shop,- and saw to it that all of the repairs listed in his service report were actually made. The mechanic’s service report was admitted into evidence and essentially lists the same repairs as the invoice. During Leonards’s case, the branch manager testified that it was not uncommon for customers to spend more on a tractor than it was actually worth and that Martin Machinery had previously billed a customer for over $30,000.00 in repairs to a 1974 model Caterpillar D8H bulldozer. According to three witnesses, the value of the bulldozer in question was placed at $5,000.00 before the repairs and from $16,000.00 to $20,000.00 after the repairs.

The trial court’s order specifically found the repair bill was reasonable and did not exceed the industry standard. The trial court awarded the amount of the bill, less $500.00 for credit on the sale of the existing radiator and less $250.00 for the markup on transportation costs. Based on the foregoing evidence, we conclude Martin Machinery satisfied its burden of proving the reasonableness of the value of its parts and labor and therefore cannot say the trial court’s findings were clearly erroneous.

Third, Leonards argues the trial court erred in not finding Martin Machinery negligent in failing to discuss costs or give an estimate. The trial court ruled Martin Machinery was not negligent in the way it handled this job, finding that Martin Machinery discussed the repairs with Leonards in person at Leonards’s ranch and twice by telephone, that Leonards had authorized the repairs, and that Leonards was experienced in business transactions and had done business with Martin Machinery previously. There is substantial evidence in the record to support these findings. Indeed, we need look no further than the testimony of Leonards himself to support the trial court’s findings. We cannot say the trial court was clearly erroneous in this regard.

Fourth, Leonards challenges the jurisdiction of the chancery court. Prior to appearing at trial in chancery court, Leonards filed a motion to transfer to circuit court. On appeal, Leonards argues he had an adequate remedy at law, although he never formally abandoned his request for an injunction based on irreparable harm. Leonards never obtained a ruling on his motion to transfer and appeared at trial in chancery court without ever raising the jurisdictional objection again. Even assuming arguendo that Leonards’s complaint failed to state a ground for equitable relief, Martin Machinery supplied any defect by pursuing its lien in equity court pursuant to section 18-45-207(a). Nottingham v. Knight, 238 Ark. 307, 379 S.W.2d 260 (1964); Spikes v. Hibbard, 225 Ark. 939, 286 S.W.2d 477 (1956). It is a well-settled rule that one who has invoked the assistance of equity cannot later object to equity’s jurisdiction unless the subject matter of the suit is wholly beyond equitable cognizance. Id. The equity court’s jurisdiction may derive from the counterclaim. Smith v. Whitmire, 273 Ark. 120, 617 S.W.2d 845 (1981); Thomason v. Abbott, 217 Ark. 281, 229 S.W.2d 660 (1950). Unless the chancery court has no tenable nexus to the claims in question, this court considers the matter to be one of propriety rather than jurisdiction, such that this court will not consider the matter if it was waived below. Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986).

The judgment is affirmed on direct appeal and reversed and dismissed on cross-appeal.

Roaf, J., dissents.

       Here we note that the United States Supreme Court has explained its summary affirmance in Spielman-Fond, Inc. v. Hanson’s Inc., 379 F. Supp. 997 (D. Ariz. 1973), aff’d 417 U.S. 901 (1974), the case upon which this court based its ruling on the federal due process issue in Bruce-Rogers, in a manner contradictory to this court’s perception expressed in Bruce-Rogers. Cf. Doehr, 501 U.S. 1, at 12, n.4, and Bruce-Rogers, 269 Ark. at 135-36, 599 S.W.2d at 703-04. However, the explanation of Spielman-Fond by the Doehr Court is entirely consistent with our ruling today on the federal constitutional question.


text:
    Steve Sinatra MOORE v. STATE of Arkansas
    CR 94-1183
    903 S.W.2d 154
    Supreme Court of Arkansas
    Opinion delivered July 3, 1995

      Robert P. Remet, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Steve Sinatra Moore, appeals the order of the Ashley County Circuit Court of his conviction, by jury trial, of continuing criminal enterprise (CCE) under Ark. Code Ann. § 5-64-414 (Repl. 1993) and sentence of imprisonment for forty years and fine of $5,000.00. The state cross-appeals, asserting the trial court erred in setting aside the jury’s verdicts of conviction and sentence for the five predicate offenses of the CCE conviction. Our jurisdiction of this appeal is proper because it is a criminal case in which a cumulative sentence of more than thirty years imprisonment has been imposed. Ark. Sup. Ct. R. 1-2(a)(2). We affirm the trial court’s judgment on direct appeal, but reverse and remand it on cross-appeal.

DIRECT APPEAL

Appellant’s first argument for reversal is that a tape recording made by the police of a conversation between him and his mother, Gladys Moore, was unlawful and led to the improper introduction of evidence that tainted the trial. We summarily dispose of this argument because appellant failed to abstract any corresponding objection that was raised before the trial court. As we have repeatedly held, to preserve an argument for appeal there must be an objection in the trial court that is sufficient to apprise that court of the particular error alleged. Halbrook v. State, 319 Ark. 350, 891 S.W.2d 379 (1995); Owens v. State, 318 Ark. 61, 883 S.W.2d 471 (1994).

Appellant’s second argument for reversal is the trial court erred in denying his pretrial motion to suppress an incriminating unsworn oral statement he made on October 28, 1992 to Arkansas State Trooper Dennis Roberts and Ashley County Sheriff’s Department Investigator David Oliver during custodial interrogation. In the challenged statement, appellant’s admissions included the fact that he had been selling crack cocaine for approximately three years. At trial, the substance of appellant’s statement, which was not reduced to writing or otherwise recorded, was admitted through Oliver’s testimony.

Evidentiary hearings were conducted on the suppression motion. The evidence showed that at approximately 8:00 a.m. on October 28, 1992, the police executed an arrest warrant for appellant for three counts of delivery of crack cocaine and searched the residence he shared with his mother, Gladys Moore, as well as the nearby mobile home of his sister-in-law, Debra Moore. After the search, at approximately 12:00 noon, appellant, Gladys Moore and Debra Moore were taken by the police to the Ashley County Sheriff’s Office, where each was separately interrogated by Roberts and Oliver that afternoon and appellant’s challenged statement was made.

Appellant argues his statement was inadmissible because (1) it was coerced by the state’s use of his relatives “as leverage to elicit a ‘confession’” and (2) the state violated his right to counsel by proceeding with his interrogation despite appellant’s repeated requests to telephone his attorney and his statement that his attorney was “on the way.” Neither of these arguments has merit.

VOLUNTARINESS — COERCION

In reviewing the trial court’s determination regarding the voluntariness of a custodial confession or inculpatory statement, this court makes an independent determination based on the totality of the circumstances and does not reverse the trial court unless its determination is clearly against the preponderance of the evidence. Noble v. State, 319 Ark. 407, 892 S.W.2d All (1995). The factors to be evaluated in considering the totality of the circumstances include the age of the accused, lack of education, low intelligence, lack of advice of constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. Id. This court reviews the evidence in the light most favorable to the state. Id. When conflicting testimony concerning the circumstances of a confession is offered, it is the trial court’s province to weigh the evidence and resolve the credibility of the witnesses. Id.

Conflicting testimony was introduced at the suppression hearing on the issue of whether Roberts and Oliver coerced appellant’s statement by making references during his interrogation to his mother and sister-in-law and their potential criminal liability arising from items of contraband discovered during the search of their residences. Oliver testified that, during his interrogation, appellant made the statement that his mother and sister-in-law would be arrested unless appellant told the police “what [they] want to know,” to which Oliver replied that Gladys and Debra Moore were already arrested and would not be arrested again. The officers testified they discussed with appellant that Gladys and Debra Moore were in custody, but denied that any promises, threats or coercion occurred. The officers testified that, by his request, appellant’s challenged statement was not recorded. The officers testified that appellant wanted to talk and Oliver testified appellant “wanted to talk about cutting a deal.” In contrast, appellant testified that threats were made about locking up his mother and that his statement was not true but was given to get his family out of jail which he felt was required “in order to save them.”

According to the officers’ testimonies, appellant’s interrogation began at approximately 3:35 p.m. when appellant was read his constitutional rights, verbally acknowledged to the officers that he understood them, then read and signed a standard Arkansas State Police waiver of those rights. The evidence showed the interrogation lasted two to three hours. In its order denying the motion to suppress, the trial court stated:

9. Moore testified he had served in the military for almost three and one-half years, and State’s Exh. D, “Description of Subject,” indicates he had a tattoo “U.S.M.C.” (usually United State [sic] Marine Corps) on his right bicep, and a 12th grade educational level. These factors are additional indication Moore’s will was most likely not overcome by anything the officers may have done or by the general stress of the arrest and detention he described.
10. Moore apparently does not deny the statement, but claims he gave the statement to get his mother out of jail and to save “them,” meaning his mother and sister-in-law. Having found he understood his “rights,” waived them, and that his mother and sister-in-law were lawfully in custody that day, his reasons are understandable, but do not invalidate his statement on this record.

Appellant’s assertion that his statement was coerced by the officers’ threats regarding his mother and sister-in-law presented an issue of credibility for the trial court which it adjudged in the state’s favor. Given the conflicting evidence, we cannot say the trial court erred in rejecting appellant’s claim that his statement was coerced and denying his motion to suppress.

RIGHT TO COUNSEL

With respect to appellant’s alleged repeated requests to use the telephone to contact his attorney, the testimony presented at the suppression hearing was conflicting. Appellant testified, as abstracted: “I asked to use the telephone quite a few times while at home and while here at the station while I was waiting. I was never provided an opportunity to use the telephone, until after the questioning.” Oliver testified that, although he did not recall whether appellant asked for an opportunity to telephone his attorney during the search of his residence, he would have denied such a request had it been made and would not have permitted appellant to use the telephone prior to the time he was delivered to the sheriff’s office. Oliver testified he did not know if appellant requested the use of the telephone after he reached the sheriff’s office prior to the time his interrogation began. Roberts testified he did not recall appellant asking for an opportunity to call his attorney during the search of his residence. However, both officers testified that, at the beginning of his interrogation, appellant was offered the use of a telephone to call his attorney and declined to do so.

With respect to appellant’s statement that his attorney was on his way, the testimony at the suppression hearing was not conflicting. The issue presented is a legal one — whether appellant invoked his right to counsel. Oliver testified that when appellant was brought into the interview room and even before his rights were read to him, Roberts said to appellant — “‘There’s a phone. Call your lawyer if you want to’” — whereupon appellant stated he had already contacted his attorney who was on his way. Oliver testified appellant did not ask for an attorney or specifically invoke his right to an attorney. Roberts testified that, although he did not recall, he believed appellant’s statement that his attorney was on the way was made prior to or during the time he read appellant’s constitutional rights to him at the beginning of the interrogation. On cross-examination, Roberts testified:

Q Did he come in and sign the rights form and you — Did he say he wanted to use — About calling his lawyer, you say you gave him an opportunity to call his lawyer?
A That’s correct, yes, sir.
Q What exactly did you say to him?
A He said that he wanted to wait till his attorney. And we asked him if he wanted to call his attorney and he said that he was already on the way.
Q And he said he wanted to wait till his attorney get here?
A He didn’t say that. He said that he— When he talked about this, he said he’d already called an attorney.
Q Did he indicate to you that he wanted his attorney to get here, wait till his attorney get here before he did anything?
A No, sir.

The abstract contains no testimony by appellant concerning his statement that his attorney was on the way.

In its order denying the suppression motion, the trial court stated:

7. Moore contends he was refused on his requests to make a telephone call to an attorney. Both Officers Oliver and Roberts testified Moore told them, in words to the effect, that his attorney Mr. Smedley had been contacted and was on his way. Even that “announcement,” if it occurred, can be waived absent a specific request for an attorney, as Moore did when read his “rights” later in the day. Oliver further testified that during questioning at the station in the afternoon, Officer Roberts told Moore to call his lawyer if he wanted to before giving any statement, and that Moore did not take Roberts up on the offer. Under the totality of these circumstances, the court does not find that Moore ever invoked right to counsel before talking to the officers, nor were the officers under any obligation to wait for a lawyer from out of the area to show up sometime on Moore’s behalf. Roberts further testified that he had no recollection of any attorney appearing for Moore by the time of the interview, about 3:35 p.m. about seven and one-half hours had elapsed from arrest to interview, it is reasonable to assume that if any lawyer were coming or trying to contact the authorities on behalf of Moore on October 28, there was ample time for such to occur.

With respect to the issue of whether appellant was denied the use of the telephone, we conclude the evidence presented an issue of credibility, which was within the trial court’s province to determine, and was determined in the state’s favor. We are not persuaded on this record that the trial court’s resolution of this issue constituted error.

With respect to the issue of whether appellant’s right to counsel was violated by the fact that his interrogation occurred after he stated his attorney was on the way, we observe an equivocal request for counsel does not obligate the police to cease questioning and seek clarification but interrogation may continue until the suspect clearly requests counsel. Boyd v. State, 318 Ark. 799, 889 S.W.2d 20 (1994); accord Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994). These cases are consistent with the United States Supreme Court’s decision reported as Davis v. United States,_U.S._, 114 S. Ct. 2350 (1994), wherein the Court stated:

Although a suspect need not “speak with the discrimination of an Oxford don,” ... he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.

Id. at_, 114 S. Ct. at 2355. Although the Davis Court stated it would be good police practice to inquire of the suspect whether an ambiguous or equivocal statement is a request for an attorney, the Court declined to adopt a rule requiring officers to ask clarifying questions.

Viewing the facts of the present case in light of Davis, we observe both interrogating officers testified appellant did not specifically request an attorney. In addition, both officers testified appellant’s statement that his attorney was on the way was made before Roberts completed the administration of appellant’s constitutional rights which he subsequently waived. Appellant offered no testimony on this issue at the suppression hearing. On this record, we find appellant has not shown the trial court erred when it found appellant failed to invoke his right to counsel and denied his motion to suppress.

CROSS-APPEAL

In addition to the CCE count, appellant was charged in the same felony information with three counts of delivery of cocaine and two counts of possession of cocaine with intent to deliver under Ark. Code Ann. § 5-64-401 (Repl. 1993). The predicate offenses for the CCE count were identified in the information as including, but not limited to, the five simultaneously-charged delivery and possession counts.

At the bifurcated trial, the jury found appellant guilty on all six counts. At the conclusion of the guilt phase, appellant moved that the five delivery and possession convictions be merged into the CCE conviction, by analogy to the crime of felony murder and its requisite predicate offense, and the CCE conviction only be submitted to the jury for deliberation on sentence. The trial court treated the motion as one based on double jeopardy, found it was timely made, and reserved its ruling until after the jury’s verdicts on sentence for all six convictions were returned. The jury returned verdicts fixing appellant’s sentence at twenty years imprisonment for each of the five delivery or possession convictions, in addition to forty years imprisonment and a $5,000.00 fine for the CCE conviction. Appellant thereupon renewed his motion which was granted in open court over the state’s objection. The following day, the trial court entered a supplemental order formalizing its decision, entitled “Findings And Order On Sentencing,” in which the trial court stated that double jeopardy applied to the present case and, on the basis of either Ark. Code Ann. §§ 5-1-110(a)(1) or 5-1-110(a)(5) (Repl. 1993), that appellant’s motion to prohibit sentencing on the five predicate delivery and possession convictions should be granted. The trial court’s order of judgment and sentence here appealed contained only the CCE conviction.

Pursuant to A.R.Cr.P. Rule 36.10(b), the state contends on cross-appeal that the trial court erred in granting appellant’s motion and prays we reverse the trial court’s judgment and remand the case for reinstatement of the five delivery and possession convictions and for further proceedings consistent therewith. The state argues resolution of the cross-appeal hinges on the intention of the General Assembly which, it asserts, is that a defendant convicted of CCE also receive separate convictions and sentences for the predicate offenses, consistent with the interpretation accorded the federal CCE statute by the United States Supreme Court in Garrett v. United States, 471 U.S. 773 (1985). We conclude the trial court committed error.

Arkansas’s CCE statute, section 5-64-414, is essentially modelled on its federal analog, the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 848. heavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993). Section 5-64-414 generally requires proof that the defendant has committed a continuing series of two or more felony offenses set forth in Ark. Code Ann. §§ 5-64-101 to -608 (Repl. 1993) while organizing or supervising at least five other people. The issue raised on cross-appeal is whether simultaneous conviction and sentence for CCE and its predicate felony offenses violate the protection against multiple punishments for the same offense afforded by the federal and Arkansas constitutional double jeopardy clauses. U.S. Const, amend. 5; Ark. Const, art. II, § 8. Section 5-1-110 embodies variations of these constitutional prohibitions against double jeopardy by permitting prosecution but prohibiting conviction of more than one offense if, pursuant to section 5-1-110(a)(1), one offense is included in the other, or, pursuant to section 5-1-110(a)(5), the criminal conduct constitutes an offense defined as a continuing course of conduct. See Commentary to Ark. Stat. Ann. § 41-105 (Repl. 1977) (now codified at section 5-1-110).

The United States Supreme Court construed the federal CCE statute in Garrett, 471 U.S. 773, and there addressed the relationship between the federal double jeopardy clause and the federal CCE crime in the context of successive prosecutions. In Garrett, the appellant’s first prosecution resulted in conviction and sentence for one count of importation of marijuana, a federal offense. The appellant’s second prosecution resulted in the appealed conviction and sentence for CCE where the series of predicate violations underlying the CCE charge included the earlier importation of marijuana conviction. In affirming the CCE conviction and sentence, the Court held that the double jeopardy clause was not violated.

The Garrett Court stated the first step in its double jeopardy analysis was to determine whether the legislature intended that each violation be a separate offense where the same conduct violates two statutory provisions. Relying on Blockburger v. United States, 284 U.S. 299 (1932), the Garrett appellant had argued that his predicate importation of marijuana conviction and the CCE conviction are the “same offense” for double jeopardy purposes because the predicate offense did not require proof of any fact not necessary to the CCE offense. Citing Missouri v. Hunter, 459 U.S. 359 (1983), the Garrett Court explained the rule of statutory construction enunciated in Blockburger and relied upon by the appellant in Garrett is not controlling when the legislative intent is clear from the face of the statute or the legislative history. The Court then determined that Congress intended the federal CCE provision to be a separate criminal offense that was punishable in addition to, and not as a substitute for, the predicate offenses.

Likewise, we conclude the General Assembly intended section 5-64-414 to be a separate criminal offense that is punishable in addition to, and not as a substitute for, the predicate felony offenses. As already noted, the face of section 5-64-414 is essentially the same language as the federal provision. In the language noted by the Garrett Court in its analysis, section 5-64-414 alters the federal CCE language principally in its sentencing provision — whereas the federal statute sets out a separate penalty for CCE unrelated to the penalty for the predicate offenses, the Arkansas statute defines a penalty range by use of a.multiplier for the penalty established for the predicate felony. Cf section 848(a)(1) (federal) and section 5-64-414(b) (Arkansas). Although no statement of legislative intent was set forth at the time the Arkansas CCE statute was created in 1989, we observe that in Act 595 of 1995, approved March 17, 1995, the General Assembly specifically amended section 5-1-110 to effectuate its stated intention to authorize separate convictions, sentences, and cumulative punishments for the crime of CCE and any of its predicate offenses. This court has looked to subsequent legislation to determine the General Assembly’s legislative intent. Rosario v. State, 319 Ark. 764, 894 S.W.2d 888 (1995).

The second step in the Garrett Court’s double jeopardy analysis involved the successive prosecutions issue that is not applicable to the facts of the present case. The third and final step in the Court’s analysis was to determine whether the double jeopardy clause barred cumulative punishments. The Court quoted its Hunter decision in this connection: “ ‘the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.’ ” Garrett, All U.S. at 793 (quoting Hunter, 459 U.S. at 366). The Court again looked to the legislative history of the federal CCE provision and concluded Congress intended separate punishments for the underlying substantive predicates and for the CCE offense. We likewise conclude, based on our examination of section 5-64-414 and on Act 595 of 1995, that the General Assembly intended to authorize separate punishments for violations of section 5-64-414 and the underlying substantive predicate offenses.

For the reasons stated in this opinion, we reverse the trial court’s judgment and remand this case for reinstatement of the jury’s verdicts of conviction and sentence with respect to the predicate delivery and possession convictions and for sentencing proceedings consistent therewith. State v. Schaub, 310 Ark. 76, 832 S.W.2d 843 (1992).

       Dates of delivery were September 30, 1992, October 6, 1992 and October 14, 1992.

       Dates of possession were October 28, 1992 and October 26, 1993.


author: Robert L. Brown, Justice.

text:
    Jim HAMILTON v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT
    94-1189
    900 S.W.2d 205
    Supreme Court of Arkansas
    Opinion delivered July 3, 1995

      Mitchell, Blackstock & Barnes, by: Clayton R. Blackstock, for appellant.

      Skokos & Coleman, P.A., by: Joy Bequette, for appellee.
   Robert L. Brown, Justice.

This case involves the Teacher Fair Dismissal Act and the decision by the appellee Pulaski County Special School District not to renew the coaching contract of appellant Jim Hamilton at Jacksonville High School for the 1993/94 school year. Hamilton raises three issues on appeal: (1) the Superintendent’s notice of recommended nonrenewal was not “simple but complete” as required by the Act; (2) a defective notice cannot be cured by the School District Board after its decision; and (3) the School District Board was arbitrary and capricious because it considered charges in its decision not stated in the notice. We agree with Hamilton that the Superintendent’s notice of nonrenewal was deficient, and we reverse and remand the matter with directions that Hamilton be reinstated with appropriate back pay.

On April 26, 1993, Bobby Lester, Superintendent of appellee, wrote Hamilton that he was recommending to the School Board that Hamilton’s basketball coaching contract at Jacksonville High School not be renewed. That letter read in part:

Pursuant to Ark. Code Ann. § 6-17-1506, you are notified that I am recommending the non-renewal of your supplemental contract for coaching at Jacksonville High School for the 1993-94 school year. The reason for this recommendation is inefficiency and failure to follow reasonable written regulations and policies.

On May 12, 1993, Hamilton requested a hearing on the nonrenewal recommendation before the School Board. In that letter he requested “the names and addresses of all persons who may testify against me and the nature of their expected testimony.” He reiterated this request on May 25, 1993.

On May 26 and June 10, 1993, a lengthy hearing was held on this matter before the School Board. At the beginning of the hearing, the twin reasons for nonrenewal of the coaching contract were read: “inefficiency, failure to follow reasonable written regulations and policies.” Hamilton’s representative asked for a continuance and pointed out that he had not received the witness information and that the reasons for nonrenewal were too broad and did not satisfy the statutory mandate that they be “simple but complete.” Counsel for the School District responded that Hamilton had access to his personnel file which included all the complaints against him which would be presented to the School Board. The School Board denied the request for a continuance.

Several witnesses testified at the hearing about problems surrounding Hamilton’s coaching. The principal of Jacksonville High School, Jim Johnson, stated that he had completed several evaluations of Hamilton. He explained that his 1992 evaluation rated Hamilton’s performance on “follow-through” and “managerial ability” as unsatisfactory. A few of the incidents cited as examples of this were Hamilton’s lapses in inventory control, his failure to complete eligibility forms for players in a timely manner, his giving athletic letters to ineligible students, his unequal schedules for male and female teams, and his tardy arrangement of fundraising for a basketball tournament. In February 1992, Johnson and Hamilton met and settled on an action plan to improve his managerial skills. Johnson testified, however, that matters did not improve. As examples, he cited Hamilton’s failure to pay for a pair of basketball shorts, his failure to hire a referee to officiate at a game, his failure to fill out schedule change forms for a particular player, and his failure to obtain participation fees from practicing players.

On January 26, 1993, Johnson testified that he evaluated Hamilton’s “judgment” and “ability to motivate and develop” as unsatisfactory. He discussed at the hearing multiple complaints from players and parents of players which included Hamilton’s “nasty” attitude toward one parent; lack of playing' time for the team members; description of players as “stupid,” “crybabies,” and “knuckleheads”; using profanity at games such as “Foul! Damn it, Foul!”; and failure to arrange newspaper coverage for one particular ballgame. Johnson further related that Hamilton had violated Arkansas Activities Association rules by allowing two players to practice and play before obtaining a physical examination and that parents had complained when a newspaper reported that Hamilton had suspended their son from the team before Hamilton told them or their son of the suspension.

Other witnesses corroborated Johnson’s testimony, including parents and athletic staff. Johnny Watson, athletic coordinator at Jacksonville High School, and Jerry Wilson, assistant basketball coach, described incidents which they said evidenced a breakdown in team discipline and a lack of sportsmanship on the part of the team. It was revealed that by the end of the 1992/93 basketball season, eight team members had quit.

Hamilton testified on his own behalf. He admitted that he was familiar with his personnel file but stated that he had no prior knowledge of Johnny Watson’s and Jerry Wilson’s concerns about the basketball program. He also stated that the principal, Jim Johnson, did not support him in parental conferences.

After proof was presented, several School Board members questioned Hamilton about his deteriorating relationship with the school’s principal and the other coaches. The School Board then voted not to renew Hamilton’s coaching contract for the 1993/94 school year.

On July 13, 1993, the School Board met and held a closed session regarding the nonrenewal of Hamilton’s coaching contract. The School Board adopted six reasons supporting the charges that Hamilton was inefficient and did not follow written regulations and policies:

(1) failure to maintain and secure inventory; (2) failure to comply with Arkansas Activities Association Regulations concerning the participation by team members without the requisite physical examination by a doctor; (3) failure to notify a team member or his parents of the team member’s suspension from the team prior to publication of the suspension to the media; (4) failure to establish and enforce reasonable team rules resulting in the lack of team discipline and loss of team morale; (5) failure to comply with rules requiring payment of a participation fee by team members; and (6) inappropriate conduct toward team members and their parents.

Hamilton next filed an appeal to Pulaski County Circuit Court. The circuit court found that the notice was sufficient and that the Teacher Fair Dismissal Act had been followed.

We first consider whether the Superintendent’s reasons for recommending nonrenewal — inefficiency and failure to follow reasonable written regulations and policies — satisfied the Teacher Fair Dismissal Act, codified at Ark. Code Ann. § 6-17-1501 et seq. (Supp. 1991). We recognize that it is not our function to substitute our judgment on renewal matters for either that of the circuit court or that of the School Board. Allen v. Texarkana Public Schools, 303 Ark. 59, 794 S.W.2d 138 (1990); Green Forest Public Schools v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985). When the issue before us is whether procedures under the Teacher Fair Dismissal Act have been strictly complied with, however, that is clearly a matter for this court’s review.

The pertinent statute states in part:

The notice of recommended nonrenewal of a teacher shall include a simple but complete statement of the reasons for such recommendation.

Ark. Code Ann. § 6-17-1506(b) (Supp. 1991). Hamilton contends that the notice was anything but complete and that he was deprived of the ability to fashion his defense. The School District counters that the notice was complete when read in conjunction with Hamilton’s personnel file. Moreover, the School District points out that the two reasons given in the notice are two of the seven reasons for which a teacher contract could be can-celled under the Professional Negotiations Agreement. By its terms, that agreement is binding on individual teacher contracts.

Under the Teacher Fair Dismissal Act, a nonrenewal of a contract is void unless procedures are strictly followed. Ark. Code Ann. § 6-17-1503 (Supp. 1991); Western Grove School Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994). We have previously underscored the importance of a nonrenewal notice before School Board action. Western Grove School Dist. v. Terry, supra. In Allen v. Texarkana Public Schools, supra, we stressed the fundamental necessity of a notice that is complete. In that case, the teacher’s contract was not renewed due to a “pattern of conduct” that covered several years. The Superintendent’s recommendation did not refer to this general reason, however, but rather to five individual charges. We held that nonrenewal could not be based on an unspecified charge and added:

To allow the superintendent and the board to delve into ad libbed charges renders meaningless the requirements of sections 16-17-1507(b) and 16-17-1507(c), and our language in Murray [Murray v. Altheimer-Sherrill Public Schools, 294 Ark. 403, 743 S.W.2d 789 (1988)] that teachers are entitled to rely on a simple and complete statement of reasons as to nonrenewal of their contracts.

Allen, 303 Ark. at 63, 794 S.W.2d at 140.

We agree with Hamilton that the notice of nonrenewal in the case before us was patently incomplete. Mere recitation of the generic categories of inefficiency and noncompliance with written regulations and policies tells a teacher nothing about the reasons for nonrenewal. Without that information, preparation for a hearing is well nigh impossible. Here, the problem is comparable to the situation in Allen v. Texarkana Public Schools, supra. The ultimate reason for nonrenewal in Allen was not provided the teacher in advance of the hearing. In the case at hand, the reasons given by the Superintendent were far too broad and general and lacked specificity. The net effect was that the precise reasons for nonrenewal were not afforded Hamilton in advance of the hearing.

The School District adduces O’Connell v. School Dist. of Springfield, 830 S.W.2d 410 (Mo. 1992) (en banc), for the proposition that though a warning letter might be insufficiently specific in itself, it met statutory requirements when the teacher was aware of the full extent of the problems due to conferences and evaluations. The O’Connell case is not precedent for the present case because it did not concern a notice of nonrenewal. Moreover, we do not agree that Hamilton’s personnel file formed an adjunct to the notice or that the categories under the Professional Negotiations Agreement for tenured teacher cancellation satisfy the statutory requirement for completeness. Under the Teacher Fair Dismissal Act, more must be included in the notice itself to pinpoint the allegations so that the aggrieved teacher can prepare to mount a defense, free of guesswork and speculation.

It is also beyond dispute that reasons for nonrenewal must be provided before the School Board hearing — not at a later time. Western Grove School Dist. v. Terry, supra; Green Forest Public Schools v. Herrington, supra. To adopt grounds for nonrenewal after the requested board hearing is totally meaningless. The School District urges that the six reasons for nonrenewal given after the decision and at the July 1993 School Board meeting were the Board’s conclusions, as required by Ark. Code Ann. § 6-17-1510(c) (Supp. 1991). Whatever the case, the particulars for nonrenewal endorsed after the hearing have no curative effect on the lack of completeness of the Superintendent’s original notice.

Finally, the School District argues as an alternative reason to affirm that the Teacher Fair Dismissal Act does not apply to extracurricular activities like coaching, but only to teachers and teaching. Not only was this argument not made at the School Board hearing or to the circuit court on appeal, it was never developed either factually or by arguments of counsel in the previous forums. Because we do not have the factual or legal basis for an appropriate consideration of the issue, we decline to entertain it on appeal. We do note in this regard that we have previously applied the Teacher Fair Dismissal Act to teacher/ coaches. Western Grove School Dist. v. Terry, supra; Lamar School Dist. No. 39 v. Kinder, 278 Ark. 1, 642 S.W.2d 885 (1982).

We reverse the circuit court’s order and remand with instructions that an order be entered reinstating Hamilton to his coaching position with appropriate back pay.

Reversed and remanded.

       This citation appears erroneous and should be section 16-17-1506(b).


author: Andree Layton Roaf, Justice.

text:
    J. E. MEDLOCK v. R.L. BURDEN d/b/a Burden Produce Services
    94-709
    900 S.W.2d 552
    Supreme Court of Arkansas
    Opinion delivered July 3, 1995

      Michael J. Medlock, for appellant.

      Eddie N. Christian, for appellee.
   Andree Layton Roaf, Justice.

Appellant J.E. Medlock appeals from a judgment entered in favor of R.L. Burden, d\b\a Burden Produce Services, in the amount of $130,722.65. The issues raised on appeal are whether the trial court erred in submitting an instruction to the jury regarding partnerships and whether the verdict is supported by substantial evidence. We affirm.

In June of 1988, Roger and Karen Burden began operating Burden Produce Services (Burden Produce), a produce brokering enterprise. From October of 1988 until January of 1989, Burden Produce sold produce to Marvin Daily, d/b/a Arkansas Produce. Subsequently, Daily failed to pay for approximately $156,000 worth of produce, and Burden Produce terminated its sales to Daily. Daily assigned his receivables to Burden Produce, and Burden Produce collected approximately $26,000, leaving an outstanding balance of $130,722.65.

The appellee filed a complaint against Marvin Daily, d\b\a Arkansas Produce and J.E. Medlock. The complaint stated the defendants purchased fruits and vegetables through brokers and then marketed the produce. The appellee asserted in the complaint that he was assured by Daily that “Medlock would not be a part” of Daily’s business after the appellee advised Daily that he had no intention of doing business with Medlock. Marvin Daily did not file an answer; however, J.E. Medlock denied the material allegations. The only theory of recovery upon which the jury was instructed was that of deceit. The jury found in favor of R.L. Burden, d/b/a Burden Produce Services, and judgment was entered against Marvin Daily and J.E. Medlock in the amount of $130,722.65.

Medlock asserts the trial court erred in instructing the jury on partnership. At trial, the appellee asserted that Marvin Daily and J.E. Medlock were partners in the produce business. The trial court instructed the jury as follows: “A partnership is an association of two or more persons to carry on, as co-owners, a business for profit.” AMI Civ. 3rd 710. Medlock, however, contends the only evidence of a partnership is a self serving statement by R.L. Burden. On appeal, the question is whether Burden presented sufficient evidence of a partnership between Daily and Medlock to submit the issue to the jury.

We hold there is sufficient evidence that a partnership existed between Daily and Medlock. Prior to Mr. Burden supplying produce to Daily, Daily informed him that he had access to Medlock’s storage facility free of charge. Mr. Burden testified that he visited Daily in November because Daily was not paying for the produce. Burden testified that when he arrived at the warehouse where the produce was stored, J.E. Medlock was there and the produce Burden had delivered to Daily was being loaded onto Medlock’s trucks. Burden confronted Daily about his failure to pay for the produce, and Daily stated Medlock was taking care of the receivables because they were partners. Burden testified he confronted Medlock, and stated “Since you guys are partners, when am I going to get my money?” According to Burden, Med-lock responded “I’ll try to get you some money Tuesday.”

Generally, the statement of one partner, as testified by a third person, cannot be used to prove that another person is a partner. Harold Gill Reuschlein & William A. Gregory, The Law of Agency and Partnership § 199 (1990). Further, we have stated that the existence of a partnership cannot be established by the admission of one alleged partner against the alleged co-partner unless made in the latter’s presence or unless the latter assented to and ratified the admission of the former. Earle v. Phillips Petroleum Co., 190 Ark. 69, 76 S.W.2d 313 (1934); See also A.R.E. Rule 801 (d)(2)(h); Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990).

We conclude the jury could reasonably infer that Med-lock heard and understood the statement and the statement was such that, under the circumstances, if he did not concur in the statement he would normally respond. In fact, rather than deny the partnership relation, Medlock assured Burden that a payment would be forthcoming. Contrary to Medlock’s assertion that Burden’s testimony is simply self serving, it is up to the jury to resolve the conflicts in the testimony and judge the weight and credibility of all the evidence. Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994). Further, it is up to the jury to determine whether Medlock acquiesced in the statement. Morris, supra.

The appellant also asserts the trial court erred in failing to grant a directed verdict and a judgment notwithstanding the verdict in his favor. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995). Our standard in reviewing the sufficiency of the evidence is well settled: (1) the evidence is viewed in a light most favorable to the appellee; (2) the jury’s finding will be upheld if there is any substantial evidence to support it; and (3) substantial evidence is that of sufficient force and character to induce the mind of the factfinder past speculation and conjecture. Id. Similarly, where a motion for judgment notwithstanding the verdict is denied, we must also determine whether the verdict is supported by substantial evidence. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

The only theory of recovery upon which the jury was instructed was that of deceit. The tort of fraud, misrepresentation, or deceit consists of five elements which must be proven by a preponderance of the evidence: (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; and (5) damage suffered as a result of the reliance. Roach v. Concord Boat Corp., 317 Ark. 474, 880 S.W.2d 305 (1994).

In both his motion for directed verdict and his motion for judgment notwithstanding the verdict, Medlock asserted there was no evidence that he induced the appellee to act in reliance upon any misrepresentation. Although we agree there is no evidence Medlock personally made a false representation, there is sufficient evidence that Marvin Daily falsely represented that Medlock would not be connected with the produce business. Consequently, because there is sufficient evidence to support the jury’s conclusion that a partnership existed, Medlock is jointly and severally liable for Daily’s false representation.

Mrs. Karen Burden testified that Daily represented he had access to a refrigerated warehouse for storing the produce and J.E. Medlock was not going to charge for the use of the facility. Mr. Burden also testified that Daily stated he had an opportunity to use Medlock’s facility free of charge. Mr. Burden testified he made it clear to Daily that Medlock had a very poor reputation and that he was worried about Daily doing business with Med-lock. Mr. Burden testified that Daily said not to worry and convinced him that “he could do this.” Further, Mrs. Burden testified that Mr. Burden warned Daily about Medlock’s reputation and to be wary of any affiliation with Medlock. Mrs. Burden testified Daily reassured them that Medlock’s only involvement was the use of the warehouse. Mr. Daily testified that Mr. Burden informed him he did not want to personally do business with Medlock. Mr. Burden testified he would never have become involved if he had known Medlock and Daily were going to be partners.

From this proof and its reasonable inferences, the jury could have concluded that Daily misrepresented the extent of Medlock’s involvement in order to induce the Burdens to supply produce and that the Burdens suffered damages as a result of justified reliance on the representation. In cases of deceit, the credibility of the witnesses is vital in determining liability, and the trier of fact is the sole judge of credibility and the weight and value attributed to evidence. Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993).

Because there is sufficient evidence that Daily committed the tort of fraud, Medlock is jointly and severally liable for Daily’s false representation. A partnership is bound by the acts of a partner when he acts within the scope or apparent scope of his authority. National Lbr. Co. v. Advance Development Corp., 293 Ark. 1, 732 S.W.2d 840 (1987). Arkansas Code Ann. § 4-42-305 (Repl. 1991) provides:

Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his copartners, loss or injury is caused to any person not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.

Further, Ark. Code Ann. § 4-42-307 (Repl. 1991) provides all partners are liable jointly and severally for everything chargeable to the partnership under § 4-42-305. The evidence is sufficient to establish that Daily was acting in the ordinary course of the business of the partnership when he obtained produce from Burden Produce Services. See Bergh v. Mills, 763 P.2d 214 (Wyo. 1988); Duncan v. Henington, 835 P.2d 816 (N.M. 1992).

In his brief, Medlock states that the “only evidence of false representations [were] those made by the defendant Marvin Daily.” Medlock asserts that there is clear evidence that any reliance on statements by Daily were not justified based upon the Burden’s contemporaneous knowledge of Medlock owning the storage facility. The appellant cites Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983), for the proposition that “a party . . . must seek out the information he desires and may not omit inquiry and examination and then complain that the other did not volunteer information.” While this is a proper statement of the law, it concerns whether a party had a duty to speak and not an affirmative misrepresentation. Granted, at the time they began discussions with Daily the Burdens were aware that Medlock’s storage facility would be utilized; however, the jury could still conclude Daily misrepresented the extent of Medlock’s involvement.

Finally, Medlock contends the Burdens became aware of the extent of his involvement in November, some two months before terminating sales. Medlock asserts that because the Burdens became aware of his involvement and did nothing, they are estopped from bringing the action. See Mid-America Truck & Equipment v. Mack Trucks, Inc., 519 F.Supp. 461 (1981). We have recognized that in order to invoke the rule of waiver it is essential to show the defrauded party intentionally condoned the fraud, affirmed the contract, and abandoned all right to recover. Sellers v. West-Ark Constr. Co., 283 Ark. 341, 676 S.W.2d 726 (1984). However, waiver and release are affirmative defenses that must be pled in an answer to a complaint. Id.; ARCP Rule 8(c). The record reflects that the appellant did not affirmatively plead waiver.

Affirmed.


text:
    Charles A. PETERS v. STATE of Arkansas
    CR 95-162
    902 S.W.2d 757
    Supreme Court of Arkansas
    Opinion delivered July 3, 1995

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

This DWI case raises one issue on appeal — whether Ark. Code Ann. § 5-65-206(d)(2), which requires the state to produce for cross examination the “person calibrating the [breathalyzer] machine” refers to the person who initially calibrates the machine or the officer who subsequently tests the calibration. The trial court found that production of the latter meets the requirements of the statute. We affirm.

Appellant was arrested on March 30, 1994 for his second DWI and for speeding. He failed all of the field sobriety tests and tested .15% on the breathalyzer at the Fayetteville Police Department. He was convicted of the offense in municipal court and also in a de novo jury trial subsequently held in circuit court.

During the jury trial there was discussion about who would fulfill the requirements of § 5-65-206(d), which requires that upon notice, the state must make available to the defendant for cross examination, “the person calibrating the [breathalyzer] machine.” The state presented the local senior operator who regularly tested the calibration of the breathalyzer. He testified that he did not calibrate the machine, but tested the calibration by using a known .10% alcohol solution and determining that the machine registered it properly. He also testified that the machine checks its own calibration with every test administered.

The defense argued that it was not the senior operator but rather an individual at the State Health Department in Little Rock who actually calibrated the machine, and the statute required the state to produce that person. The trial court disagreed and held that the senior operator who testified fulfilled the requirements of the statute. Appellant was found guilty and sentenced to 45 days in jail and given a $2,000.00 fine.

On appeal, appellant first argues that the trial court erred in allowing the breath test result into evidence because of the state’s failure to produce the person calibrating the breathalyzer machine, as required by Ark. Code Ann. § 5-65-206(d)(2). Section (d) provides:

(d) The records and reports of certifications, rules, evidence analysis, or other documents pertaining to work performed by the blood alcohol program of the Arkansas Department of Health under the authority of this chapter shall be received as competent evidence as to the matters contained therein in the courts of this state subject to the applicable rules of criminal procedure when duly attested to by the program director or his assistant, in the form of an original signature or by certification of a copy. These documents shall be self-authenticating.
(1) However, the machine performing the chemical analysis shall have been duly certified at least once in the 1st three (3) months preceding arrest and the operator thereof shall have been properly trained and certified.
(2) Nothing in this section shall be deemed to abrogate a defendant’s right of cross-examination of the person calibrating the machine, the operator of the machine, or any person petforming work in the blood alcohol program of the Arkansas Department of Health, who shall be made available by the state if notice of intention to cross-examine is given ten (10) days prior to the day of hearing or trial.
(3) The testimony of the appropriate analyst or official may be compelled by the issuance of a proper subpoena, in which case, the records and reports shall be admissible through the analyst or official who shall be subject to cross-examination by the defendant or his counsel, (emphasis added)

At trial, both the senior operator in charge of the breath testing installation for the Fayetteville Police Department and the operator who actually performed appellant’s breath test, were available to testify. Senior operator Martin testified that he tested the breath machine monthly; he also stated, “well, you’re not calibrating it, you’re testing the calibration. We’re not allowed to do any calibrating. We’re running a test to make sure it’s within the tolerance and that the calibration is correct... we test the calibration. The word ‘calibrate’ and ‘test the calibration’ is used too much interchangeably. That’s not the fact. . . .”

We have held that the person who calibrates the machine must be made available for cross examination, see Smith v. State, 301 Ark. 569, 785 S.W.2d 465 (1990) and State v. Massey, 302 Ark. 447, 790 S.W.2d 175 (1990). However, we have not addressed the precise issue of who qualifies as this person under the statute in question. Senior operator Martin’s testimony that he did not calibrate the machine is not determinative of this issue. It is for this court to decide what a statute means. See Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992).

The Act in question provides that all testing procedures be done according to approved methods of the Arkansas Department of Health. Ark. Code Ann. § 5-65-204(c) and (d). We look to the regulations of a state agency when necessary, to determine if an act has been complied with, and to construe its meaning. Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988). We take judicial notice of state agency regulations that are duly published. Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989). Here, the Arkansas Regulations for Blood Alcohol Testing (1989) does not provide a definition for “calibration” or “calibrator” within the definitions section. However, the definitions include:

Calibration Device — see Simulator.
Calibration Test — a test, using a simulator or calibration device containing a known concentration of ethyl alcohol to check, rectify, or verify the accuracy of an alcohol testing instrument.
Operator — an individual who has met the requirements outlined in 1.15, thus qualifying to test subjects on a specified type of breath-testing instrument or instruments and to perform related tasks in accordance with Department procedures and these Regulations.
* * *
Senior Operator - an individual who has met the requirements outlined in 1.13 thus qualifying to (1) test subjects on a specified type of breath-testing instrument or instruments, (2) run the Department required calibration checks and proficiency tests on the specified breath-testing instruments at his place of employment, and (3) perform other required tasks related to alcohol testing; all of the above in accordance with Department procedures and these Regulations. A Senior Operator also may qualify to instruct other personnel in the operation of the specified breath-testing instrument(s) to which his certification applies and may qualify to analyze blood samples as outlined in 1.14.

Under Part E. - Calibration and Calculation of Results, the regulations provide:

4.50 Procedures on Approved Instruments - Type Al and Type A2. A calibration test shall be performed to determine if an instrument produces results within the standard of accuracy (±01). Due to individual characteristics of the various approved instruments, different procedures are required for performing the calibration tests. They are described as follows.
a. BAC DataMaster. A calibration test is automatically performed with each subject test and is recorded by the instrument as part of the test record. There is therefore, no requirement to record the calibration test as a special entry in the log book.
b. Breathalyzer Models 1000 and 2000. and Intoxilvzer Model 40IAS. A Senior Operator is to run a calibration test at least once within twenty-four hours either before or after any subject test using a standard solution in an approved breath simulator device. The calibration test is to be recorded chronologically in the instrument logbook which is to be open to inspection by the Department.
c. Alco-Analvzer Gas Chromatograph Model 1000 and Gas Chromatograph Intoximeter Model Mark !Y.
(1) Breath Samples. When operated in the integrate mode, the instrument records only the ethyl alcohol in a sample on chart paper marked with graduations allowing test results to be read directly from the chart paper. To show that the instrument is calibrated properly, a standard solution in an approved breath simulator device is to be used with every subject test. The standard must give a reading of its intended value 0.01g/210 breath. For example, a 0.10 standard must read between 0.09 and 0.11g/210 breath.

The “calibrations” discussed in the regulations pertain to methods for testing the accuracy of the machine and not the initial setting of the equipment. Definitions are provided for both the “operator” of the machine and the “senior operator, ” who is responsible for checking the calibration of the machine on an ongoing and continuing basis. It is clear from the regulations that a reasonable interpretation of § 5-65-206(a)(2) and the legislative intent behind it is that the “person calibrating the machine” is the person testing the accuracy of the machine’s measurements as outlined in the regulations, or the senior operator. There is simply no sufficient basis in the regulations to support the interpretation argued by the appellant.

Finally, appellant argues that even if the senior operator was the proper person to testify, he never gave direct testimony in front of the jury and therefore could not be cross-examined by appellant as provided by the statute. This argument is totally without merit. Appellant requested that the senior operator be examined outside the hearing of the jury and stated that if the court determined him to be the proper person for the state to produce pursuant to his request for the person calibrating the machine, appellant would allow the test results to be introduced without further contest. He stated he had no evidence to challenge the accuracy of the machine. This is in fact what transpired and appellant allowed senior operator Martin to be excused after his in-camera testimony and the court’s adverse ruling. Appellant then permitted the test results to be introduced through the testimony of the operator, Officer Yates, without further challenge to the accuracy of the test. He cannot now complain that he was not allowed to cross-examine the senior operator when he chose to forgo this opportunity.

We note that in addition to the breathalizer test, there was overwhelming evidence in support of the verdict of DWI. The appellant failed all the field sobriety tests, except one he refused to do, stating that he could not perform it. He told the arresting officer that the breathalyzer test was a “waste of time” because he was drunk and he declined a blood test for the same reason.

Affirmed.