author: Annabelle Clinton Imber, Justice.

text:
    OFFICE OF CHILD SUPPORT ENFORCEMENT v. Jimmy Clyde RAGLAND
    96-888
    954 S.W.2d 218
    Supreme Court of Arkansas
    Opinion delivered October 16, 1997

      Lori Hoggard, for appellant.

      The Blagg Law Firm, by: Mel Jackson, for appellee.
   Annabelle Clinton Imber, Justice.

At issue in this case is whether service of process under Ark. R. Civ. P. 4 is necessary to obtain a valid default judgment against an obligor for child-support arrearages. The trial court held that the service on the obligor was defective and set aside a default judgment obtained against him. We reverse and hold that personal service of process under Rule 4 was not necessary because the chancery court had continuing personal jurisdiction over the obligor and the obligee asserted no new or additional claims for relief.

Sara Jane Ragland and Jimmy Clyde Ragland were divorced pursuant to a decree entered by the Searcy County Chancery Court on March 16, 1978. Sara Jane was awarded custody of their minor children, and Jimmy Clyde was ordered to pay $200 monthly in child support through the office of the Chancery Clerk. In a contract dated August 15, 1977, and filed on May 22, 1978, Sara Jane assigned her right to child support to the Division of Social Services in consideration for public assistance.

On July 21, 1986, the Child Support Enforcement Unit, in its capacity as assignee, filed a “Motion for Judgment” requesting a judgment in the amount of $14,000 for arrearages unpaid by Jimmy Ragland. OCSE obtained a default judgment in the amount of $14,000 on October 8, 1986. Among other things, the judgment provided that “¡Jimmy Ragland’s] agent was duly served with a copy of the motion for judgment on 22nd day of July 1986, and no response has been filed herein and (Jimmy Ragland] stands wholly in default.”

On October 30, 1995, Jimmy Ragland moved to set aside the default judgment following the institution of income withholding against him. Ragland alleged that the default judgment was “void because of insufficiency of service of process.” Ragland also moved to stay OCSE income withholding and attached an affidavit from the Searcy County Circuit Clerk who reviewed the underlying case file and did not find a ‘“green card’. . .nor. . . any proof of service upon the Defendant, Jimmy Ragland.” In response, OCSE asserted that the service of its “Motion for Judgment” was valid because it was sent to Ragland via certified mail, return receipt requested. OCSE attached the “green card” which showed a July 22, 1986, delivery date, and bore the signature of Sandy Ragland on the “Signature — Agent” line.

On February 20, 1996, the trial court entered an order setting aside the default judgment because of insufficient service of process under Ark. R. Civ. P. 4(d)(8)(A). According to the trial court, OCSE did not comply with the rule’s additional requirements that Ragland be served by restricted delivery, and that the record contain the “green card” before entry of the default judgment. OCSE brings the present appeal. The Court of Appeals certified the case to us as involving an interpretation of Rules 4(d)(8)(A) and 5(b) of the Arkansas Rules of Civil Procedure.

For its sole argument on appeal, OCSE argues that the trial court had continuing personal jurisdiction over Ragland, and thus no new service of process under Ark. R. Civ. P. 4 was necessary to obtain a valid default judgment on the past-due arrearages. Because the trial court granted Ragland’s motion to set aside the default judgment, we review this ruling for an abuse of discretion. See, e.g., Tharp v. Smith, 326 Ark. 260, 930 S.W.2d 350 (1996); M. v. Clark, 316 Ark. 439, 872 S.W.2d 410 (1994).

One of the earliest Arkansas cases addressing the trial court’s continuing personal jurisdiction over the parties in a divorce action is Jones v. Jones, 204 Ark. 654, 163 S.W.2d 528 (1942). In Jones the chancery court awarded the obligee a monthly amount of alimony. The obligor later moved to Florida and fell behind on payments, and the obligee sought a decree for the amount in arrears. While the chancery court recognized that the obligor was delinquent on the payments, it nonetheless refused to render a decree for the arrearage because the entire arrearage had accumulated while the obligor resided in Florida, and no additional personal service of process had been obtained on him.

This court reversed the trial court’s determination that additional personal service of process was necessary, characterizing the alimony award as a “continuing general decree” against the obligor that would endure until modified by a change in the condition of the parties. Id. Accordingly, the alimony award was not a final determination of the parties’ respective rights, and the decree for future payments was not “a final decree upon which an execution might be issued or which might become a lien upon real estate.” Id. In order to collect on this continuing general decree, the Jones court recognized the need to periodically ascertain arrearages and render a decree for the amount due:

For these purposes the parties to the suit continue to be parties and, being parties already, it would not be necessary to get personal service upon them to carry out and enforce a continuing decree when an attempt is made to reduce the decree to a definite and certain amount, dependent upon whether there should be delinquencies in the payment of the monthly alimony allowed.

Id. Thus, the trial court was clearly erroneous in refusing to issue a “decree certain” for the alimony arrearage for lack of additional personal service of process on the obligor. Id.

Subsequent to Jones, a number of cases have reinforced this court’s position that the chancery court has continuing personal jurisdiction over the parties to a divorce with respect to certain support/alimony matters. See, e.g., Rice v. Rice, 213 Ark. 981, 214 S.W.2d 235 (1948) (no additional service of process is necessary to collect alimony arrearage under a separate maintenance decree); Schley v. Dodge, 206 Ark. 1151, 178 S.W.2d 851 (1944) (actual notice given to a nonresident alimony obligee was sufficient where the obligor petitioned to modify an award arising out of an Arkansas decree rendered when both parties resided in Arkansas).

Turning to an analysis under the modern rules of civil procedure, Rule 4 expressly governs the service of the complaint and summons, while Rule 5 governs the service of “every pleading and every other paper” filed after the complaint. Rule 5(a) does require that pleadings asserting any new or additional claims for relief against a party in default be served in the manner provided for service of summons under Rule 4. The crucial inquiry in the present case is which service rule governs OCSE’s “Motion for Judgment” filed on July 21, 1986.

The answer to this question turns on the characterization of OCSE’s cause of action, and whether it is a new, original cause of action being asserted against Ragland. Jones and its progeny suggest that an action to reduce past-due arrearages to an executable judgment is not a “new” cause of action, but instead flows from the original divorce decree. As such, personal jurisdiction over the parties continues without the need for additional service of process.

Ragland attempts to distinguish the Jones line of cases by arguing that OCSE was not an original party to the action, and thus that “continuing jurisdiction applies only to parties contemplated within the decree.” This distinction is not persuasive. OCSE stands in Sara Ragland’s shoes as the contractual assignee of her entitlement to support. Indeed, OCSE submitted to the trial court’s personal jurisdiction by instituting the proceedings to obtain a judgment. Ragland cites to no authority for the proposition that the assignment of the obligee’s rights creates a meaningful difference insofar as the chancery court’s continuing personal jurisdiction over him as obligor. Rather, Jones suggests that an obligee’s attempt to reduce past-due arrearages to judgment where the chancery court has continuing personal jurisdiction over the obligor is not a new or additional claim for relief necessitating new personal service of process. Accordingly, service of OCSE’s “Motion for Tudgment” was governed by Rule 5(b), rather than Rule 4(d)(8)(A).

The next question is whether service of OCSE’s “Motion for Judgment” was properly made under Rule 5. Rule 5(b) generally requires service upon a party’s attorney. However, contemplating the very issue presented in this case, Rule 5(b) adds that service upon a party’s attorney is insufficient “in a case where there is a final judgment but the court has continuing jurisdiction.” In such cases, service is required to be made to the party. Service upon a party may be made by mailing a copy of the pleading or paper to the party at his last known address, and “service by mail is presumptively complete upon mailing.”

In the present case, the certificate of service contained within OCSE’s “Motion for Judgment” shows that it was mailed to Jim Ragland on July 18, 1986, at P.O. Box 728, Marshall, AR 72650. Moreover, the green card later attached to OCSE’s response to Ragland’s motion to set aside shows that the article was delivered via certified mail to “Jim Ragland P.O. Box 728, Marshall, AR 72650,” on July 22, 1986. Sandy Ragland signed for the article in the box designated “Signature —■ Agent.” Because service of OCSE’s “Motion for Judgment” was presumptively complete upon mailing, the trial court abused its discretion in setting aside the default judgment due to insufficient service.

Reversed.

       OCSE does not contest that service was insufficient under Rule 4. Its argument on appeal is limited to the general assertion that the chancellor erred in finding that Rule 4 was the governing rule of service. Inexplicably, OCSE fails to cite Rule 5 in its appellate brief, or otherwise argue which rule of service besides Rule 4(d)(8)(A) is applicable. We nonetheless engage in a comparative analysis of Rules 4 and 5 because OCSE’s abstract demonstrates that OCSE argued to the trial court below that the service provisions of Rule 5 governed its “Motion for Judgment.”

       This characterization is consistent with Ark. Code Ann. § 9-14-234(b) (Supp. 1995), enacted as part of Act 383 of 1989. The statute provides that any child support payment that has accrued under an order providing for the payment of child support shall automatically become a final judgment subject to writ of garnishment or execution. Id.

       The Reporter’s Note to Rule 5(b) states that it was amended to incorporate provisions from Ark. Stat. Ann. § 27-362 (Repl. 1979), now deemed superseded. (The Reporter’s Note incorrectly cites the relevant statute as Ark. Stat. Ann. § 27-632). Ark. Stat. Ann. § 27-362(b) provided:
      In cases involving divorce, child custody, child support, or other cases wherein the court has continuing jurisdiction, the attorney of record shall be considered as such. . . only until such time of the entry of a final decree. In such cases wherein the court has continuing jurisdiction, it shall be insufficient to show that service was obtained on the attorney of record after the date of entry of the final decree. In such cases, service may be obtained by mailing a copy of the petition by certified mail, return receipt requested, to the address of the other party, or if no address be known, then to the last known address of said party.


source: Caselaw Access Project

license: Public Domain

text:
    Jeffrey Lyle SLATON v. Teresa Austin SLATON
    97-337
    956 S.W.2d 150
    Supreme Court of Arkansas
    Opinion delivered October 16, 1997

      Davis & Watson, P.A., by: Charles E. Davis, for appellant.

      Annie Powell and Eddie N. Christian, for appellee.
   Annabelle Clinton Imber, Justice.

This appeal questions whether the trial court had jurisdiction to rule upon a posttrial motion. We disagree with the trial court’s conclusion that it had jurisdiction to enter the order, and accordingly we reverse and remand.

On September 26, 1991, Jeffrey Slaton obtained a divorce from Teresa Slaton in the Washington County Chancery Court. Jeffrey was awarded custody of the two children born of the marriage. Teresa was granted visitation rights and ordered to pay $300 a month child support. Several hours after the divorce decree was entered, Teresa Slaton filed a pleading entitled a “Motion for Reconsideration” in which she claimed that the divorce decree was contrary to the preponderance of the evidence adduced at trial.

In response, the trial court entered on September 30, 1991, an order stating that the divorce decree should be “stayed and held in abeyance until further hearing in this matter which is scheduled for October 8, 1991, at 9:00 a.m.” The following day, the court appointed a guardian ad litem to investigate and represent the children’s interests.

The court did not hold a hearing on the matter until February 24, 1992. During the hearing, the court explained that it granted Teresa’s motion because:

I didn’t feel that I had all the information that I should to make a meaningful decision. And, quite frankly, my decision hasn’t changed that much other than I have given full credence to the report of the ad litem, and this is going to be the order in regards to the minor children.

The court then orally announced its ruling.

On March 5, 1992, the court modified the initial divorce decree by providing that Jeffrey and Teresa would share joint custody of the children with neither parent being required to pay child support. Although joint custody was granted, Jeffrey became the primary custodial parent with detailed visitation rights granted to Teresa.

Over the next three years, Jef&ey and Teresa filed numerous motions regarding child custody, support, and visitation. On December 26, 1995, the court granted Teresa sole custody of the children and ordered Jeffrey to pay child support in an amount to be determined at a later hearing. Five days later, Jeffrey filed a “Motion to Declare Order Void and to Set Arrearage.” In this motion, Jeffrey claimed that the March 5, 1992, order was void because the trial court lost jurisdiction by failing to rule 'upon Teresa’s motion for reconsideration within thirty days as required by Ark. R. App. P. — Civ. 4(c). Because the March 5, 1992 order was void, Jeffrey argued that the original September 26, 1991 divorce decree was still in effect, and that Teresa owed him over $14,000 in past-due child-support payments under that decree.

In an order entered on February 12, 1996, the trial court found that it had jurisdiction to issue the March 5, 1992 order pursuant to Ark. R. Civ. P. 60(b) which allows a trial court to modify an order within ninety days of its having been filed with the clerk. In the alternative, the court found that Jeffrey had waived his jurisdiction argument by appearing before the court and participating in the hearing. Finally, the court found that Jeffrey was estopped to deny the validity of the March 5, 1992 order because both parties had relied upon it for several years. Accordingly, the court denied Jeffrey's motion. From this order, Jeffrey filed a timely notice of appeal in the Arkansas Court of Appeals.

In an unpublished decision, the Court of Appeals found that Teresa’s September 26, 1991 motion for reconsideration was actually a motion for a new trial under Ark. R. Civ. P. 59, and that the trial court had jurisdiction to issue the March 5, 1992 order because it had granted Teresa’s motion for a new trial on September 30, 1991, which was well within the thirty-day limit mandated by Ark. R. App. P. — Civ. 4(c). Slaton v. Slaton, No. CA 96-670, Slip Op. (Ark. Ct. App. March 5, 1997). We granted Jeffrey’s petition for review. Upon granting a petition for review, we review the case as if the appeal was originally filed in this court and give no deference to the ruling rendered by the Court of Appeals. Goston v. State, 327 Ark. 486, 939 S.W.2d 818 (1997); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801, cert. denied, 117 S. Ct. 2411 (1997).

I. Abstract Deficiencies

In her brief, Teresa made a motion to strike the portions of Jeffrey’s abstract of the September 26, 1991 divorce decree regarding the grounds for divorce and why custody was initially granted to Jeffrey. We agree that these matters were irrelevant to the issues on appeal, and thus they were not considered. See Ark. Sup. Ct. R. 4-2(a)(b); Purtle v. McAdams, 317 Ark. 499, 879 S.W.2d 401 (1994).

Teresa also included in her brief a motion for costs arguing that according to Ark. Sup. Ct. R. 4-2(b)(l), she is entitled to reimbursement for the costs she incurred to supplement the deficiencies in Jeffrey’s abstract. This motion is denied because as in McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994), we find it “impossible to separate the time and costs for the Supplemental Abstract portions essential only to the appeal itself.”

II. Continuing Jurisdiction

The sole issue on appeal is whether the trial court had jurisdiction to issue the March 5, 1992 order. Teresa presents several arguments supporting the trial court’s finding that it had jurisdiction to enter the order. First, Teresa argues that the trial court’s order should be affirmed because a chancery court has continuing jurisdiction to modify child support and custody orders. See Ark. Code Ann. § 9-12-314(b) (Repl. 1993). The chancery court, however, has continuing jurisdiction to modify such orders only when the moving party has demonstrated a change in circumstances requiring modification. Williams v. Williams, 253 Ark. 842, 489 S.W.2d 774 (1973); Campbell v. Richardson, 250 Ark. 1130, 468 S.W.2d 248 (1971). In her September 26, 1991 motion, Teresa stated that the trial court’s custody and support order was clearly against the preponderance of the evidence, and not that the circumstances had changed such that modification was required. Accordingly, we find no merit to this argument.

III. Arkansas Rule of Civil Procedure 59

Next, Teresa claims that the trial court had jurisdiction to enter the March 5, 1992 order pursuant to Ark. R. Civ. P. 59 and Ark. R. App. P. — Civ. 4(c). Teresa argues that her September 26, 1991 “Motion for Reconsideration” was a motion for a new trial which the trial court granted in its September 30, 1991 order. Teresa further asserts that because the court granted her motion within thirty days, as required by Ark. R. App. P. — Civ. 4(c), the court had jurisdiction to hold a new trial on the issue of child custody and support on February 24, 1992, and enter its order regarding the same on March 5, 1992. See Williams v. Hudson, 320 Ark. 635, 898 S.W.2d 465 (1995); Arkansas State Highway Comm’n v. Ayres, 311 Ark. 212, 842 S.W.2d 853 (1992); Wal-Mart Stores, Inc. v. Isely, 308 Ark. 342, 823 S.W.2d 902 (1992).

Before we can answer this issue, we must first decide whether Teresa’s “Motion for Reconsideration” was actually a motion for a new trial pursuant to Ark. R. Civ. P. 59. We have previously held that motions should be liberally construed, and that courts should not be blinded by titles but should look to the substance of motions to ascertain what they seek. Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987). For example, in Jackson v. Arkansas Light & Power Co., 309 Ark. 572, 832 S.W.2d 224 (1992), we held that a motion to vacate which stated that the judgment was void because “it is contrary to the facts, public policy and is clearly contrary to the preponderance of the evidence” was really a motion for a new trial under Ark. R. Civ. P. 59(a)(6). As in Jackson, Teresa claimed in her motion for reconsideration that the divorce decree was contrary to the preponderance of the evidence, which is a specifically enumerated ground for a new trial under Ark. R. Civ. P. 59(a)(6). Thus, we hold that Teresa’s September 26, 1991, pleading was a motion for a new trial.

The next issue is whether the trial court’s September 30, 1991 order granted Teresa’s request for a new trial. Jeffrey asserts that it did not because the court failed to make a ruling in the order specifying the particular basis for which the new trial was granted. Jeffrey did not raise this argument before the trial court and thus, we will not consider it for the first time on appeal. Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995). Moreover, in General Motors Corp. v. Tate, 257 Ark. 347, 516 S.W.2d 602 (1974), we said that when “an order granting a new trial is expressed in general terms without a specification of grounds, it must be affirmed if it can be supported on any ground alleged in the motion.”

By looking to the substance of the trial court’s order and the court’s explanation for why it granted Teresa’s motion, we hold that the trial court’s September 30, 1991 order did not grant Teresa’s request for a new trial pursuant to Ark. R. Civ. P. 59(a)(6). As previously mentioned, Teresa asserted in her September 26, 1991 motion that the findings in the initial divorce decree were clearly against the preponderance of the evidence adduced at trial. In response to Teresa’s motion, the trial court appointed a guardian ad litem to represent the children and granted the guardian unlimited access to the children’s medical, psychiatric, and school records. Additionally, the court announced at the beginning of the February 24, 1992 hearing that it granted Teresa’s motion for reconsideration because it did not have enough evidence at the time it initially entered the divorce decree to “make a meaningful decision.” Thus, it is apparent from the court’s order and its comments during the hearing that the court was attempting to stay the effect of its September 26, 1991 divorce decree, so that it could hear additional evidence. Instead of reviewing the evidence it heard at the initial divorce hearing as requested by Teresa in her Rule 59(a)(6) motion, the trial court decided to hear additional evidence.

We have previously held that a Rule 59(a)(6) motion cannot be used to bring into the record that which does not otherwise appear in the record. Burge v. Pack, 301 Ark. 534, 785 S.W.2d 207 (1990); Sharp Co. v. Northwest Ark. Planning & Consulting, Co., 269 Ark. 336, 602 S.W.2d 627 (1980). For these reasons, we find that the trial court’s September 30, 1991 order did not grant a new trial pursuant to Ark. R. Civ. P. 59(a)(6). Because the court did not, therefore, act upon Teresa’s motion for a new trial within thirty days as required by Ark. R. App. P.— Civ. 4(c), the motion was deemed denied and the trial court did not have jurisdiction under Rule 59 to enter the March 5, 1992 order. See Williams, supra; Ayres, supra; Isely, supra.

IV. Arkansas Rule of Civil Procedure 60

Instead of relying upon Ark. R. Civ. P. 59, the trial court found that it had jurisdiction to issue the March 5, 1992 order under Ark. R. Civ. P. 60(b) which states that:

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

On numerous occasions, we have held that a trial court loses jurisdiction to set aside or modify an order pursuant to Ark. R. Civ. P. 60(b) if it does not do so within ninety days of the entry of the original order. Griggs v. Cook, 315 Ark. 74, 864 S.W.2d 832 (1993); City of Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989). In this case, the court did not modify or set aside its September 26, 1991 divorce decree until March 5, 1992, which is well beyond the ninety-day limitation period contained in Rule 60(b).

A trial court may modify or set aside its order beyond the ninety-day limitation contained in Rule 60(b) if the specifically enumerated conditions listed in Rule 60(c) exist. As in Cigan Ins. Co. v. Brisson, 294 Ark. 504, 506-A, 746 S.W.2d 558 (1988) (supplemental opinion granting rehearing), there is nothing in the record to suggest that these conditions exist in this case, nor were they argued below or upon appeal. Thus, we conclude that the trial court did not have jurisdiction to enter its March 5, 1992 order pursuant to Ark. R. Civ. P. 60.

V. Waiver

The trial court alternatively held that Jeffrey waived the issue of the trial court’s jurisdiction when he appeared before the court on February 24, 1992, and argued the merits of Teresa’s motion for reconsideration. We have continuously held that a party may not consent to subject-matter jurisdiction where no such jurisdiction lies, nor may jurisdiction be waived. Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371 (1996); Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995). Thus, we conclude that Jeffrey did not waive the issue of the trial court’s jurisdiction to enter the March 5, 1992 order.

VI. Estoppel and Res Judicata

Finally, the trial court found that Jeffrey was estopped from contesting the court’s jurisdiction to enter the March 5, 1992 order because both parties had relied upon the order for approximately three and a half years until it was eventually modified on December 26, 1995. Teresa, however, failed to assert the affirmative defense of estoppel in her answer to Jeffrey’s motion to set aside the March 5, 1992 order, as required by Ark. R. Civ. P. 8(c). Instead, Teresa only asserted the defense of res judicata. Because Teresa failed to obtain a ruling from the trial court on the issue of res judicata, we will not consider it upon appeal. See Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997).

As to Teresa’s estoppel argument, we have previously held that a party may correct his or her failure to plead an affirmative defense by amending the answer at any time pursuant to Ark. R. Civ. P. 15(c). Terminix Int’l Co. v Stabbs, 326 Ark. 239, 930 S. W.2d 345 (1996); Burge v. Pack, 301 Ark. 534, 785 S.W.2d 207 (1990); Brooks v. Town & Country Mutual Ins. Co., 294 Ark. 173, 741 S.W.2d 264 (1987). This argument must fail, as it did in Burge and Brooks, because there is nothing in the record to suggest that Teresa ever requested that her answer be amended to include the affirmative defense of estoppel.

We have also held that under Ark. R. Civ. P. 15(c), an issue not set forth in the responsive pleading may be raised by express or implied consent of the parties and thereby treated in all respects as though it had been properly pled. Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1996); Hackleton v. Larkan, 326 Ark. 649, 933 S.W.2d 380 (1996); Brooks, supra. Once again, there is nothing in the record to suggest that the affirmative defense of estoppel became an issue during the hearing by either express or implied consent of the parties. Accordingly, we find that Jeffrey was not estopped from asserting that the trial court did not have jurisdiction to enter the March 5, 1992 order.

For these reasons, we find that the trial court did not have jurisdiction to enter the March 5, 1992 order modifying custody and child support. We reverse and remand for the trial court to determine the amount that Teresa owes in past-due child-support payments. This determination should take into account how long the September 26, 1991 child-support order remained in effect, in view of various orders entered subsequent to March 5, 1992, that may or may not have incorporated by reference the terms of the March 5, 1992 order.

Reversed and remanded.


author: Per Curiam.

text:
    Robert Say McINTOSH v. STATE of Arkansas
    CR 97-1161
    952 S.W.2d 167
    Supreme Court of Arkansas
    Opinion delivered October 16, 1997

      Alvin D. Clay, for appellant.
    No response.
   Per Curiam.

Robert Say McIntosh, by his attorney, has filed a motion for rule on the clerk.

His attorney, Alvin D. Clay, admits in his motion that the record was tendered late due to a mistake on his part.

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

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


author: W.H. “Dub” Arnold, Chief Justice. Donald L. Corbin, Justice, Tom Glaze, Justice,

text:
    Mike WILSON, Olan Ashbury, Johnny Mass and Mike McNew v. PULASKI ASSOCIATION OF CLASSROOM TEACHERS, Deen Minton, President, Lois Hughes, Vice President, and Sandra Roy
    96-1048
    954 S.W.2d 221
    Supreme Court of Arkansas
    Opinion delivered October 23, 1997

      Ramsay, Bridgforth, Harrelson & Starling, by: Spencer F. Robinson, for appellants.

      Roachell Law Firm, by: Richard W. Roachell, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

This action was filed by Mike Wilson and a group of taxpayers of Pulaski County Special School District who have children in the Pulaski County School District against the Pulaski Association of Classroom Teachers, the collective bargaining representative of certified employees of the school district. Appellants filed a lawsuit challenging the legality of a teachers’ strike.

A teachers’ strike began on August 19, 1996. On August 23, 1996, appellants filed suit in the Pulaski County Chancery Court seeking a preliminary injunction to stop the strike. A hearing was held on August 23, 1996. The chancery court denied the preliminary injunction based upon the findings that appellants did not meet the burden of proving that a teachers’ strike was illegal and that the appellants did not meet the burden of proving irreparable harm.

On August 28, 1996, a federal district court, through its jurisdiction over Pulaski county and the teachers association in a suit regarding Pulaski County desegregation, enjoined the strike and ordered the parties to mediate. Following this order, the strike ended.

Despite the ending of the strike, appellants’ challenge the chancellor’s denial of the preliminary injunction claiming that the chancellor erred by failing to find that a teachers’ strike is illegal per se pursuant to Arkansas law and that due to this illegality, the preliminary injunction should have been ordered. As a procedural matter for granting preliminary injunctions, appellants contend that a showing of irreparable harm is not necessary in instances where an activity is illegal per se. Appellants do not challenge the finding by the chancellor that they did not prove that they had suffered irreparable harm. We do not agree with appellants’ characterization of the standard for granting preliminary injunctions and affirm the chancellor’s denial of the preliminary injunction.

Appellee challenged the jurisdiction of this court based upon the doctrine of mootness relying upon the traditional rule that this court will not render advisory opinions. It is true that appellants have requested an order from this court enjoining a teachers’ strike in the event that the teachers attempt to strike again in the future. This is speculative in nature, and no one knows if the teachers will ever do such. It is well settled that this court does not render advisory opinions nor answer academic questions. See, Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995); Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994); Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994); Gladden v. Bucy, 299 Ark. 523, 772 S.W.2d 612 (1989); and Neely v. Barber, 288 Ark. 384, 706 S.W.2d 358 (1986).

Under Arkansas law, a case becomes moot when any judgment rendered would have no practical legal effect on an existing legal controversy. Dillon v. Twin City Bank, 325 Ark. 309, 924 S.W.2d 802 (1996); Arkansas Intercollegiate Conference v. Parnham, 309 Ark. 170, 828 S.W.2d 828 (1992). An exception to the mootness doctrine, however, allows review for appeals involving the public interest and the prevention of future litigation. Richie v. Board of Educ., 326 Ark. 587, 933 S.W.2d 375 (1996); Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990). Although the teachers’ strike ended over one year ago, it is clear that the ability of public employees to withhold their services involves a question of significant public interest, the resolution of which would certainly preclude future litigation.

Appellants urge this court to recognize that it has already declared strikes by public employees to be illegal per se in Potts v. Hay, 229 Ark. 830, 318 S.W.2d (1958), and City of Ft. Smith v. No. 38, AFL-CIO, 245 Ark. 409, 433 S.W.2d 153 (1968). The right of public employees to strike was not the issue in those cases. We will note, however, that there is dicta in those cases which states that such strikes are illegal in Arkansas, but neither of these cases directly addresses the issue of whether a teachers’ strike or a strike by public employees is legal. Nevertheless, even assuming that the categorical statements in those cases about public strikes answers the illegal-strike question, appellants still cannot succeed.

An order granting or denying a preliminary injunction is within the chancery court’s discretion. McCuen v. Harris, 321 Ark. 458, 466, 902 S.W.2d 793 (1995). See also, Smith v. American Trucking Ass’n, 300 Ark. 594, 781 S.W.2d 3 (1989); American Trucking Ass’n v. Gray, 280 Ark. 258, 675 S.W.2d 207 (1983). We will not reverse a chancellor’s ruling on a preliminary injunction unless there has been an abuse of discretion. Smith v. American Trucking Ass’n, supra; Scrivner v. Portis Mercantile Co., 220 Ark. 814, 250 S.W.2d 119 (1952); Riggs v. Hill, 201 Ark. 206, 144 S.W.2d 26 (1940).

Arkansas Rules of Civil Procedure, Rule 65(a)(1) provides that, where a preliminary injunction is to be given without notice to the adversary of the one requesting it, it must be alleged by affidavit or verified complaint that, absent the injunction, irreparable harm will result to the appellant. Where notice is given, the rule contemplates that a hearing will be held at which such irreparable harm must be shown. The prospect of irreparable harm or lack of an otherwise adequate remedy is the foundation of the power to issue injunctive relief. See, Amalgamated Clothing v. Earle Indus., Inc., 318 Ark. 524, 886 S.W.2d 594 (1994); Paccar Financial Corp. v. Hummell, 270 Ark. 876, 878, 606 S.W.2d 384 (Ark. App. 1980). See also, Ahrent v. Sprague, 139 Ark. 416, 214 S.W. 68 (1919); Ex Parte Foster, 11 Ark. 304 (1850)

This court has previously explained the jurisdiction of equity with respect to public employees as follows:

There is no doubt but that equity will exercise jurisdiction to restrain acts or threatened acts of public corporations or of public officers, boards, or commissions which are ultra vires and beyond the scope of their authority, or which constitute a violation of their official duty, whenever the execution of such acts would cause irreparable injury to, or destroy rights and privileges of, the complainant, which are cognizable in equity, and for the protection of which we would have no adequate remedy at law.

Jensen v. Radio Broadcasting Co., Inc., 208 Ark. 517, 520, 186 S.W.2d 931, 932 (1945). Clearly, for equity to act, there must be proof of (1) irreparable harm and (2) no adequate remedy at law. See, East Poinsett Sch. Dist. No. 14 v. Massey, 317 Ark. 219, 876 S.W.2d 573 (1994).

Thus, in order for a chancellor to grant a preliminary injunction, the moving party must establish irreparable harm; this is true in all instances where injunctive relief is sought regardless of whether the party may additionally prove that an activity is illegal per se. In this case, appellants are precluded from establishing that the chancellor abused her discretion because they do not challenge her ruling that no irreparable harm had been suffered. Indeed, they contend that the strike was illegal per se and that this factor alone supports injunctive relief. For over a century, this court has required proof of facts establishing that the moving party is entitled to injunctive relief from a court of equity. See, e.g., Foster Ex Parte, 11 Ark. 304 (1850) (requiring proof of irreparable harm to enjoin a trespass). Appellants make no attempt to prove irreparable harm. In effect, they ask us to change this court’s longstanding posture on equity jurisdiction without the support of any convincing legal authority. Under such circumstances, this court has, and should, decline to do so. See, e.g., Qualls v. Ferritor, 329 Ark. 235, 947 S.W.2d 10 (1997); Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997).

Because appellants failed to prove irreparable harm, we affirm the chancellor’s order.

Affirmed.

Glaze, J., dissents.

Corbin, J., concurs in part and dissents in part.

Imber, J., not participating.

Don Donner, Special Justice, concurs in part and dissents in part.

Donald L. Corbin, Justice,

concurring in part and dissenting in part. While I agree with the majority that the chancellor correctly denied Appellants’ request for an injunction, as Appellants have not challenged the chancellor’s finding that they failed to make a showing of irreparable harm, I disagree with the majority’s refusal to reach the merits of Appellants’ claim that strikes by public employees are illegal in Arkansas.

The majority’s refusal to address the merits of this argument is predicated on the ground that the issue is moot, apparently because the strike had ended prior to this appeal. I believe, however, that this issue falls within one of the exceptions to the mootness doctrine recognized by this court. Where considerations of public interest or the prevention of future litigation are present, this court may choose to elect to settle an issue, even though moot. Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990). The issue of whether teachers, being public employees, may strike against their government employers, is an issue of significant public interest that must be addressed by this court in light of the two decisions rendered in Potts v. Hay, 229 Ark. 830, 318 S.W.2d 826 (1958), and City of Fort Smith v. No. 38, AFL-CIO, 245 Ark. 409, 433 S.W.2d 153 (1968).

In Potts, this court addressed the issue of whether police officers could be denied employment on the basis of their membership in a union. One of the arguments raised by the appellants was that police officers should not be permitted to belong to unions because the public interest would suffer in the event the officers were allowed to exert “union pressure” upon their employer, the city of Little Rock. As the chancellor in the present case correctly observed, the reference in Potts to “union pressure” was actually a reference to strikes against the city. In an effort to assure the appellants that no such union pressure would be permitted under the law, this court cited two cases from other jurisdictions, which provided that public employees may seek union membership, but that there is no right of public employees to strike against the government. See Norwalk Teachers’ Ass’n v. Board of Education, 83 A.2d 482 (1951); Beverly v. City of Dallas, 292 S.W.2d 172 (Tex. Civ. App. 1956).

In City of Port Smith, the issue presented was whether a municipality could be required to engage in collective bargaining with its union employees. Notwithstanding that issue’s resolution, this court made clear in the first sentence of the opinion that strikes by public employees were illegal, stating:

Under Amendment 34 to the Arkansas Constitution municipal employees have the right to belong to labor unions, but they do not have the right to strike against the government. Potts v. Hay, 229 Ark. 830, 318 S.W.2d 826 (1958).

245 Ark. at 410, 433 S.W.2d at 154 (emphasis added).

Although I do not dispute the majority’s characterization of the above-recited language as dicta, in that it was not the ultimate holding of the case, I cannot ignore the fact that the language is unequivocal and is, at the very minimum, persuasive authority for the proposition that strikes by public employees are illegal. Unless this court is prepared to overrule those two decisions, they must be recognized for what they have clearly stated — that there is no right of public employees to strike against the government.

Because I believe this issue should be put to rest one way or the other, in the interest of avoiding future strikes and the litigation that inevitably follows, I must dissent from the majority’s refusal to reach the merits of Appellants’ argument. Given this court’s reluctance to address this important issue, I strongly urge the General Assembly to consider this matter at its next session.

Don Donner, Sp.J., joins in this opinion.

Tom Glaze, Justice,

dissenting. In my view, the court is wrong in refusing to address the merits of this case. It unquestionably has the discretion to do so. This issue concerning the validity of striking school teachers has now occurred at least twice in Pulaski County, since I have served on this court. On both occasions, the strikes ended before this court was asked to decide their validity.

Teachers, students, parents, and taxpayers should be apprised concerning the validity of such strikes, so when a dispute arises again, the participating parties can pursue what they know is a lawful course of action and Arkansas citizens can predictably measure its outcome. Until this court grapples with and decides whether teachers may strike against their public employer, confusion and uncertainty will continue to prevail in the management of our schools. That is not a happy prospect.

       In oral argument, counsel for appellees said that he had been involved in four other public strike cases and in two of those, chancery judges had found it was not clearly illegal for public employees to strike. Those cases were not later appealed and decided by this court.


author: David Newbern, Justice.

text:
    Floyd WILSON v. J. WADE QUINN COMPANY, Inc.
    97-344
    952 S.W.2d 167
    Supreme Court of Arkansas
    Opinion delivered October 23, 1997

      W. Scott Davidson, for appellant.

      Snellgrove, Laser, Langley , Lovett, & Culpepper, by: P. Sanders Huckabee, for appellee.
   David Newbern, Justice.

This is a slip-and-fall case. Floyd Wilson alleged he fell down in a Jr. Foods Store (“the store”), operated by J. Wade Quinn Company, Inc. (“Quinn Co.”). He alleged that he slipped on a foreign substance on the floor, fell into a soft-drink display, and sustained injuries. We are asked to review a summary judgment in favor of Quinn Co. We hold that summary judgment was improperly granted as conflicting affidavits left a genuine issue of material fact. Ark. R. Civ. Pro. 56(c).

Mr. Wilson alleged his fall was due to slipping on a liquid substance and mashed food particles. In support of its summary-judgment motion, Quinn Co. produced the affidavit of Christopher Ramsey, the store’s assistant manager. Mr. Ramsey stated that, after hearing a noise near the soft-drink display, he went to investigate. He did not see anyone there; however, Mr. Wilson came out of the restroom and informed Mr. Ramsey that he fell on a french fry but was fine. He inspected the area where Mr. Wilson allegedly fell, but he did not see and was not made aware of a french fly, foreign substance, or anything slippery in the area. He said that, to the best of his knowledge, a store employee did not place any foreign matter in or near the area where Mr. Wilson fell. No employee had been made aware of the existence of any foreign matter in this area nor had any employee been asked to remove any such matter. Mr. Ramsey said his duties included checking the floor for food, spilled drinks, debris, and other foreign matter. Employees are trained to watch for and clean up any such matters on the floor, and the floors are cleaned on an hourly basis. He said that, approximately thirty minutes before Mr. Wilson fell, the area where he fell was cleaned and that the store did not serve french fries on the day in question.

In his counteraffidavit Mr. Wilson stated that there was a “dirty looking liquid” mixed with food particles on the floor that “looked like it had been walked through for quite some time.” The substance spread over nearly four feet, approximately the width of the aisle. After being helped up by an unidentified person, he went into the bathroom to stop his chin from bleeding. Mr. Wilson stated that when he left the restroom, a store employee asked him if he would be alright, and that the employee then turned to another employee and said, “I thought you cleaned that up.” Mr. Wilson also stated that the store employees had a clear view of the aisles from their usual position at the cash register behind the counter. He said that he was not warned of a substance on the floor, and there were no barriers or signs preventing him from walking down the aisle where the substance was allegedly on the floor. He was using crutches at the time of the fall and the employees were present when he wiped the substance from the floor off of his crutch.

Summary judgment should be granted only when it is clear that there is no genuine issue of material fact to be litigated. Kelley v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997). A summary judgment should not be granted when reasonable minds could differ as to the conclusions they could draw from the facts presented. Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994). The burden of proving there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Wyatt v. St. Paul Fire & Marine Ins., 315 Ark. 547, 868 S.W.2d 505 (1994). Any doubts and inferences must be resolved against the moving party. Kelley v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997). When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue of material fact. Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994).

A property owner has a duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Kelley v. National Union Fire Ins. Co., 327 Ark. at 335, 937 S.W.2d at 663; Black v. Wal-Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994).

In order to prevail in a slip and fall case, the appellant must show either (1) that the presence of a substance upon the premises was the result of the defendant’s negligence, or (2) that the substance had been on the premises for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. The mere fact a person slips and falls does not give rise to an inference of negligence. Possible causes of a fall, as opposed to probable causes, do not constitute substantial evidence of negligence.

Kelley v. National Union Fire Ins. Co., 327 Ark. at 335, 937 S.W.2d at 663 (citations omitted).

Mr. Wilson’s statement that the dirty water and mashed food particles looked as if they had been walked through for some time and that they had spread over a wide floor area raises the specter of a foreign substance having been present long enough that store employees should have known of its presence. In addition, his statement that one employee remarked to another that he thought “that” had been cleaned up adds considerable weight to the possible conclusion that the store was negligent by virtue of knowledge of the presence of the substance and failure to act to remove it.

Quinn Co. argues the statement alleged to have been made by its employee could have referred to an employee mentioning to another that the floor should have been cleaned after the accident. While that is a possibility, so is the possibility that it meant before the accident occurred. At any rate, the matter is one for a fact-finder.

Unlike cases, such as Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993), and Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861, in which we have affirmed a summary judgment or directed verdict due to lack of a showing as to how long the substance was on the floor prior to the fall, the evidence here is such that a fact finder could determine that there was a foreign substance on the store’s floor and that it was known to employees but not removed or that it had been present for a time sufficient to require its notice and removal by employees.

As all doubts and inferences must be resolved in favor of the nonmoving party, Mr. Wilson’s affidavit was sufficient to raise a material issue of fact. See Kelley v. National Union Fire Ins. Co., 327 Ark. at 336, 937 S.W.2d at 663. The affidavits conflict as to whether the substance had been on the premises for such a length of time that the store employees knew or reasonably should have known of its presence and failed to use ordinary care to remove it. A genuine issue of material fact remains to be decided.

Reversed and remanded.


author: Tom Glaze, Justice.

text:
    Devolyn Kay LEE v. John William LEE, Jr.
    97-338
    954 S.W.2d 231
    Supreme Court of Arkansas
    Opinion delivered October 23, 1997

      Bagby Law Firm, P.A., by: Philip A. Bagby, for appellant.

      Annie Powell and Eddie N. Christian, for appellee.
   Tom Glaze, Justice.

This case involves a custody dispute over the two sons of appellant Devolyn Kay Lee and appellee John William Lee. Crawford County Chancery Judge Jim Spears, by ex parte order of protection, initially awarded temporary custody of the boys to Devolyn. However, Chancery Judge Charles Clawson was later assigned to hear Judge Spears’s cases, and after hearing the Lees’ divorce case on December 5, 1996, Judge Clawson granted Devolyn a divorce, but awarded permanent custody of the two boys to John. Judge Spears actually signed the initial divorce decree, which was entered on December 19, 1996, but after Devolyn filed a motion for a new trial on December 20, 1996, Judge Clawson signed a second decree, which was entered on December 27, 1996. Other than reflecting Judge Clawson’s signature, in place of Spears’s, the second decree read the same as the first decree. When the trial court failed to rule on Devolyn’s new-trial motion, Devolyn filed a timely notice of appeal on January 23, 1997. On appeal, Devolyn raises four points for reversal, but none has merit.

In her first argument, Devolyn contends that, immediately after Judge Clawson heard and decided the Lees’ case, she had acquired newly discovered evidence entitling her to a new trial. Devolyn alleged in her motion for new trial that John had informed Devolyn’s father, Donald Love, that he did not have adequate housing for the boys, that it would be impossible for him to keep the boys in their present school district, and that neither Devolyn nor Mr. Love and his wife would see the boys again. Based on these remarks attributed to John, Devolyn asserted John had not been forthright with the court and had shown it was not in the best interest of the boys to be awarded to John. In his response, John denied having made any of the statements.

It is settled law that a new trial based on newly discovered evidence is not a favored remedy, and whether to grant a new-trial motion on such grounds is within the sound discretion of the trial court. Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 844 S.W.2d 337 (1993). This court has also established that, in a hearing on a motion for new trial based on newly discovered evidence, the burden is on the movant to establish that he or she could not with reasonable diligence have discovered and produced the evidence at the time of the trial, that the evidence is not merely impeaching or cumulative, and that the testimony would have changed the result of the trial. Id.

Here, the statements attributed to John were denied by him, and the trial court was well within its province to disbelieve Donald Love. In addition, the remarks attributed to John could only have been used to impeach his earlier testimony. The fact that new information has been discovered which might merely impeach or otherwise test the credibility of a witness is not suffident reason to warrant a new trial. Accordingly, we hold the trial court did not abuse its discretion in denying Devolyn’s motion.

For her second point, Devolyn argues that Judge Clawson’s assignment in this case, made pursuant to Ark. Code Ann. § 16-10-101 (Repl. 1993), violated Art. 7, § 13, of the Arkansas Constitution and Ark. Code Ann. § 16-13-2003 (Repl. 1993). The constitutional provision cited provides for the establishment of judicial circuits and for judges who shall be elected and reside within each circuit. Section 16-13-2003, establishes the number of judges and chancellors to be elected in the Twelfth Judicial Circuit, which includes the Crawford County Chancery Court. In sum, Devolyn submits that, contrary to Art. 7, § 13, Judge Claw-son was never elected to serve in the Twelfth Judicial Circuit, and other judges who had been elected within the circuit could have served if they had been given the opportunity. See Ark. Code Ann. § 16-13-403 (Repl. 1993). Devolyn fhrther argues that Judge Clawson’s appointment or assignment under Ark. Code Ann. § 16-10-101 (Repl. 1993) was not proper because there was no showing his assignment was necessary “for the efficient and proper administration of justice,” as is required by the statute.

The short answer to Devolyn’s argument is that, while Devolyn argues she had no opportunity to object to Judge Claw-son’s appointment on December 4, 1996, the record belies her charge. Judge Clawson was appointed on December 4, 1996, so she could have raised this issue either on December 4 or before trial commenced on December 5, 1996. Thus, Devolyn is procedurally barred from raising this issue for the first time on appeal. See Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995); see also Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995) (court held it is the parties’ or trial court’s responsibility to apprise the supreme court as to whether an assignment is necessary under Act 496 [now codified as § 16-10-101], and once that assignment is made, that responsibility continues).

Devolyn next argues that Judge Clawson’s appointment was limited to the trial on December 5, 1996, and therefore his signing of the parties’ decree and entering it on December 27, 1996, exceeded his authority. Again, Devolyn made no objection to Judge Clawson’s having signed the December 27 decree. Our de novo review of chancery matters does not mean that this court can entertain new issues on appeal when the opportunity presented itself for them to be raised below and that opportunity was not seized. Jones, 320 Ark. 449, 898 S.W.2d 23.

In her final point, Devolyn suggests Judge Spears committed reversible error when he signed the parties’ initial decree even though he had not heard the case. She cites Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993), and argues that once an order of assignment of another judge has been entered, the assignment deprives any other judge of authority to act in any proceeding related to that case. Of course, we have already upheld the validity of Judge Clawson’s appointment and his signing and entry of the December 27 decree in this case. Consequently, Devolyn’s argument became moot when Judge Clawson entered the December 27 decree.

For the reasons above, we affirm.

       The Neal court upheld an assignment under § 16-10-101 even though another judge, who had been elected within the circuit, could have served. See also George v. State, 250 Ark. 968, 470 S.W.2d 93 (1971) (court held selection and assignment of a judge under § 16-10-101 as an alternate method to judges in different circuits serving on exchange).


text:
    MERCANTILE BANK, n/k/a Union Planters Bank of Northeast Arkansas v. B & H ASSOCIATED, INC., Fred Boling and Clara Boling
    97-280
    954 S.W.2d 226
    Supreme Court of Arkansas
    Opinion delivered October 23, 1997

      Snellgrove, Laser, Langley , Lovett, & Culpepper, by: Todd Williams, for appellant.

      Larry Boling, for appellees.
   Tom Glaze, Justice.

Appellee B & H Associates and Fred and Clara Boling owned what is called the Uni-Banc System — a complete in-house processing system designed in 1979 to handle the accounting needs of banks. In February of 1992, B & H sold a copy of the Uni-Banc System software program to Sparak Financial Systems, Inc., and it is the 1992 sales contract that, in part, plays a role in the litigation now before us involving Mercantile Bank and B & H Associates. Under the 1992 contract, Sparak acquired broad authority to market, license, develop, and use the Uni-Bank System. Sparak could use the copy as if it were the original software program, and was not required to pay B & FI any royalties or licensing fees. The parties’ contract provided that Sparak’s and B & H’s interests in the system were exclusive except as to each other’s interest, and that neither Sparak nor B & H could transfer, sell, assign, or encumber the system without the prior consent of the other. Moreover, each party had the right of first refusal on any sale or any proposed sale of the system by the other, and in the event B & FI sold its interest, B & H was required to pay Sparak $60,000.00 from the sale proceeds. Significant to this present suit between Mercantile Bank and B & H, the 1992 Sparak contract provided that, in the event either B & H or Sparak went into bankruptcy or had a judgment entered against it in excess of $50,000.00, the obligated party would sell its interest in the Uni-Banc system to the other for the sum of $25,000.00.

The present dispute between Mercantile Bank and B & H arose from a September 22, 1993 loan that the Bank made to B & H and the Bolings in the sum of $150,000.00. The parties’ promissory note evidencing the loan was secured by B & H’s Uni-Banc System. When B & H defaulted, the Bank sued, and subsequently took possession of B & H’s computer software identified as the Uni-Banc System. Afterwards, Mercantile Bank, at a private sale, sold the copy of the system to Sparak for $25,000.00 and the Bank then sought a deficiency judgment against B & H and the Bolings. However, B & H and the Bolings defended the Bank’s action, claiming Mercantile Bank’s sale of the Uni-Banc System’s software had not been conducted in a commercially reasonable manner. After a jury trial, B & H and the Bolings were favored with a defendants’ verdict, and when the trial court denied the Bank’s motion for a new trial or judgment notwithstanding the verdict, the Bank brought this appeal.

Mercantile Bank first contends the trial court erred in denying its new-trial motion because there was no evidence from which reasonable minds could conclude that its sale of the UniBanc System to Sparak was not conducted in a commercially reasonable manner. The Bank’s contention is largely based upon Mr. Boling’s earlier inability to obtain a purchaser for the Uni-Banc System. It submits the $150,000.00 loan was made essentially to give Mr. Boling an opportunity to sell the system’s software to pay off B & H’s indebtedness. Although Mr. Boling had made a number of contacts seeking buyers for the system, the Bank’s Vice-President, Brad Edwards, said Boling had been unable to obtain a purchaser. Edwards claimed the Bank had used Mr. Boling’s contacts, but the Bank, too, failed to find a buyer. Bank officer Edwards related the Bank further used the assistance of Tim Gibson, the president of a local computer system business, and Gibson, among other things, opined Sparak’s purchase price of $25,000.00 was “quite a bit.” Another witness, James V. Burnett, had a current interest in Uni-Bank System which permitted him to re-market the system to banks. The Bank points out that, when Burnett was asked if he would be interested in buying a copy of the system’s software, he responded no because Sparak’s 1992 contract presented “too many strings” attached to any sale.

Mercantile Bank emphasizes the foregoing evidence to support its argument that it had conducted a commercially reasonable sale when obtaining $25,000.00 from Sparak for B & H’s Uni-Banc System. However, this court’s review of the trial court’s denial of the Bank’s new-trial motion is whether there is any substantial evidence to support the jury’s verdict. Fisher v. Valco Farms, 328 Ark. 741, 945 S.W.2d 369 (1997). In examining whether substantial evidence exists, all evidence must be examined in the light most favorable to the party on whose behalf the judgment was entered and given its highest probative value, taking into consideration all reasonable inferences deducible from it. Esry v. Cordin, 328 Ark. 153, 942 S.W.2d 846 (1977). In such situations, the weight and value [of testimony] is a matter within the exclusive province of the jury. Id.

Before reviewing the evidence in B & H’s favor to determine if the verdict should stand, we first discuss the law relevant to a creditor’s right to dispose of collateral securing an indebtedness. In this respect, a secured party after default may sell, lease, or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing, Ark. Code Ann. § 4-9-504(1) (Repl. 1991), and the disposition of the collateral may be by public or private proceedings . . ., but every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable. Ark. Code Ann. § 4-9-504(3) (Repl. 1991). While a creditor is given the right to a deficiency judgment under Ark. Code Ann. § 4-9-504(2) (Repl. 1991), the creditor’s right to such judgment depends on whether he has complied with the statutory requirements concerning disposition and notice. First State Bank of Morrilton v. Hallett, 291 Ark. 37, 722 S.W.2d 555 (1987). When the debtor defends upon the ground that the secured creditor did not proceed in accordance with the provisions of the Uniform Commercial Code, the creditor has the burden of proving that he proceeded in a commercially reasonable manner. Farmers Equipment Co. v. Miller, 252 Ark. 1092, 482 S.W.2d 805 (1972); Henry v. Trickey, 9 Ark. App. 47, 653 S.W.2d 138 (1983). Courts have held, and we agree, that whether a sale of collateral was conducted in a commercially reasonable manner is essentially a factual question. United States v. Conrad Publishing Co., 589 F.2d 949 (8th Cir. 1978); Cheshire v. Walt Bennett Ford, Inc., 31 Ark. App. 90, 788 S.W.2d 490 (1990); Henry, 9 Ark.App. 47, 653 S.W.2d 138. And, if a secured party sells the collateral in a commercially unreasonable manner, a presumption arises that the value of the collateral is equal to the outstanding debt; however, the secured party can still recover a deficiency upon proving that the reasonable value of the collateral was less than the debt. Barker v. Horn, 245 Ark. 315, 432 S.W.2d 21 (1968); Henry, 9 Ark. App. 47, 653 S.W.2d 138; and J. White & R. Summers, Uniform Commercial Code (2d ed. 1980). Finally, when determining whether the sale of a collateral was handled in a commercially reasonable manner, this court has held that a major consideration is the determination of the fair market value of the collateral. Thrower v. Union Lincoln-Mercury, Inc., 282 Ark. 585, 670 S.W.2d 430 (1984).

After a careful review of the record, we conclude that Mercantile Bank failed to overcome its legal burdens as set out above and that there is substantial evidence to support the jury’s decision that the Bank’s sale to Sparak was not commercially reasonable. We now allude to that evidence that favors B & H’s verdict.

While Mr. Edwards testified that he had incurred in excess of 100 hours in trying to find potential buyers for the UniBanc System, he conceded that, other than a company he had located named Advance Data, the Bank essentially limited its contact to eight persons or entities given it by Mr. Boling. The Bank admitted that it did not advertise in magazines, American Bankers’ Journal, state bank journals, banking computer trade magazines, or newspapers. Yet, a banker and financial consultant, Johnny Ray McFarland, testified that, in locating potential buyers for UniBanc, he would not have limited his contacts to Mr. Boling’s prospects and would have advertised in the most accessible market and utilized trade publications sent to bankers. We point out, as well, that sales have been held not to have been commercially reasonable where there was minimal advertising of the sale and where there was a great disparity between the sale price and the fair market price. United States v. Conrad Publishing Co., 589 F.2d 949 (8th Cir. 1978).

Edwards also admitted Mercantile Bank had a duty to obtain a fair market value when selling the system, but the Bank obtained no such value. The Bank’s witness, Tim Gibson, who sells licenses for computer software systems, stated that he was unable to place a value on the Uni-Banc System. In his opinion, Gibson said “there was no way to determine whether the system was worth $25,000.00, $1,000.00, $500,000.00, or $1,000,000.00.” In sum, there is substantial evidence in the record that reflects the Bank made no reasonable effort to determine the fair market value or identify potential buyers.

On the other hand, the Bank was well aware that Sparak had purchased its interest in the Uni-Banc System for $805,000.00, and knew James V. Burnett had purchased an interest in the UniBanc System in 1993, and his contract had resulted in payments to B & H in the approximate annual amount of $25,000.00 in royalties. Concerning Sparak’s purchase, Mr. Boling testified that Sparak had licensed the Uni-Banc software to eighty banks and had earned $1.5 million on its $805,000.00 investment.

Because the foregoing reflects substantial evidence to support the jury’s decision that the Bank’s sale to Sparak was not commercially reasonable, we conclude the trial court did not abuse its discretion in denying the Bank’s request for a new trial.

In its second point for reversal, Mercantile Bank argues value testimony given over its objection at trial had prejudiced its case and caused reversible error. It first challenges Mr. Boling’s trial testimony concerning an offer that he had received in August 1994 from Oracle Corporation to buy B & H’s Uni-Banc System. The Bank objected on hearsay grounds. The trial court ruled Mr. Boling could discuss the sale of the property to the people (Oracle), but he could not mention the amount offered. When Boling resumed testifying, he was asked the purpose of Oracle’s contacting him, and he responded that Oracle wanted to make an offer. Boling then volunteered, “I asked [Mr. Smith] to contact Mercantile Bank and also give Mercantile Bank the information about the price that he was asking which was in excess of $400,000.00.” The Bank’s counsel approached the bench, renewed his objection, and requested a mistrial. The trial judge rejoined that a mistrial was too drastic, but he would (and did) instruct the jury to disregard the amount mentioned by Mr. Boling because it was hearsay.

The rule is well settled that a mistrial is an extreme remedy to be taken only when it is apparent that justice cannot be served by continuing the trial. Bull Shoals Community Hosp. v. Partee, 310 Ark. 98, 832 S.W.2d 829 (1992). It is proper only when the error is beyond repair and cannot be corrected by any curative relief. Nobles v. Casebier, 327 Ark. 440, 938 S.W.2d 849 (1997). The granting of a mistrial is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal absent a showing of abuse.

As discussed in detail above, considerable evidence was presented, bearing on Uni-Banc System’s worth or value, and some of that testimony offered figures well in excess of the $400,000.00 offer which Boling mentioned at trial. Considering the circumstances, we simply are unable to say the trial court’s cautionary instruction to the jury did not cure any prejudice caused by Boling’s offer statement.

The Bank also questions the trial court’s allowing Johnny Ray McFarland to testify as an expert and specifically permitting him to give value testimony concerning Uni-Banc System’s software. First, in reviewing the abstract of record, we do not find a definitive ruling on accepting or rejecting McFarland as an expert. However, the Bank did question whether B & H had established a proper foundation upon which McFarland could offer an opinion in putting a market value- on the Uni-Banc System’s software. We believe such foundation was sufficient.

McFarland explained his long-standing experience with B & H’s software. He had been a Senior Vice President with the Bank of Wynne, and in that capacity, he became intimately familiar with the Uni-Banc System. During his thirteen years with the Bank of Wynne, he worked with the system. He testified in detail how the system worked, compared it as being superior to others, and related that the Wynne Bank had paid B & H $25,000.00 just for the right to use B 8c H’s software. While McFarland admitted he had no college course or education with respect to placing a market value on software, he said that he had been involved in the purchase or sale of source codes for software. He said that his company, Alpha Financial Services, evaluated properties and businesses, and he mentioned the three appraisal approaches he utilized when establishing a market value.

After giving the foregoing testimony, McFarland was asked if he had an opinion concerning the Uni-Banc System, to which Mercantile Bank objected. And while McFarland started to mention an offer he knew had been given to Mr. Boling, the trial court interrupted, by instructing McFarland his opinion could not be based on what somebody else told him. McFarland then stated without objection he valued the system at $1.2 million. Later, when the Bank and the trial court questioned McFarland’s basis for arriving at his value testimony, he assured them his opinion was not based on someone else’s opinion as to the software’s worth, but instead he reached his opinion by employing the hours that went into developing the B & H software and using the knowledge that, in 1992, Sparak had paid more than $800,000.00 for a copy of the software.

This court has long recognized that the admissibility of expert testimony rests largely within the broad discretion of the trial court, and the appellant bears the burdensome task of demonstrating the trial court abused its discretion. Collins v. Hinton, 327 Ark. 159, 937 S.W.2d 164 (1997). Generally, the tendency is to permit the jury to hear the testimony of the person having superior knowledge in a given field unless clearly lacking in either training or experience, and too rigid a standard should be avoided. Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989). If some reasonable basis from which it can be said the witness has knowledge of the subject beyond that of persons of ordinary knowledge, his evidence is admissible. Id.

Here, given McFarland’s background and his intimate knowledge of the Uni-Banc System, there was more than a sufficient basis to uphold the trial court’s ruling allowing his value testimony.

Affirmed.

       Hereinafter, for writing purposes, appellees collectively are often referred to as B & H and B & H Associates.

       Mercantile Bank is now Union Planters Bank of Northeast Arkansas.