text:
    Charles D. RAGLAND, Commissioner of Revenues v. MOUNTAIN VALLEY SPRING COMPANY
    85-78
    696 S.W.2d 710
    Supreme Court of Arkansas
    Opinion delivered September 23, 1985

      Timothy J. Leathers, Joseph V. Svoboda, Wayne Zakrzewski, Kelly S. Jennings, Ann Kell, Joe Morphew, and Michael D. Munns, by: John H. Theis, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   George Rose Smith, Justice.

The appellee is engaged in the business of selling Mountain Valley water taken from its spring in Garland County, to distributors throughout the United States. The water is distributed in ’/2-gallon and 5-gallon glass bottles which the appellee purchases outside Arkansas. For the three years in issue the appellant levied a use tax of $23,225.14 against the appellee, on the theory that it is using the bottles in its business. The appellee seeks a refund, on the theory that it is purchasing the bottles for resale, a tax-exempt transaction. Ark. Stat. Ann. §§ 84-3106(B) and 84-1904(i) (Repl. 1980). The chancellor agreed with the taxpayer and ordered repayment of the tax.

Opposing counsel in effect agree that the pivotal question is whether the facts in this case bring it within our decision in Arkansas Beverage Co. v. Heath, 257 Ark. 991, 521 S.W.2d 835 (1975). There a PepsiCola dealer bought its bottles for 9 cents and charged its customers a refundable deposit of 3 cents a bottle. Each bottle was reused an average of ten times. We rejected the dealer’s argument that it was buying the bottles for 9 cents and reselling them for 3 cents.

Here the chancellor was right in finding the facts to be materially different from those in Heath. The appellee sells only to distributors, not directly to consumers. Its contracts with distributors provide that Mountain Valley Spring Company will sell bottles to the distributor at cost. It does that. It buys ’/2-gallon bottles in cartons of six for $3.58 and sells them to distributors for $3.60. It buys 5-gallon bottles for $5.25 each and sells them for $5.25. The distributor ordinarily requires a deposit from the customer. The New York distributor, for example, paid over $18,000 to the State of New York as use taxes on the bottles it bought during the three years in issue. That illustrates the purpose of our exemption, to prevent the same commodity from being taxed twice.

When a distributor returns empty bottles to Mountain Valley, the distributor is credited with having that many bottles on hand. No credit is given for broken bottles. When the distributor’s next order is filled, no charge for bottles is made up to the number the distributor has on hand; any additional bottles must be paid for.

It is at once apparent that there are significant differences between this case and Heath. There we refused to accept the premise that the dealer was selling a 9-cent bottle for 3 cents. Obviously we said, the dealer expected to get its bottles back; otherwise it could not remain in business. Here it is immaterial to Mountain Valley whether the bottles are returned or not. If a bottle is lost or broken, the distributor or consumer bears the loss. Thus the facts support a finding of an actual resale, a conclusion reinforced by the distributors’ payment of use taxes elsewhere. Thus the transaction falls within the sales tax exemption of sales for resale, § 84-1904(i), which is carried forward into the use tax law. § 84-3106(B).

Affirmed.

Purtle, J., not participating.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Tommy Ray SULLIVAN v. STATE of Arkansas
    CR 85-69
    696 S.W.2d 709
    Supreme Court of Arkansas
    Opinion delivered September 23, 1985

      William R. Simpson, Jr., Public Defender, and Howard W. Koopman, Deputy Public Defender, by: Deborah R. Sallings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant, as a result of his having killed three young women during an episode in Little Rock, was convicted of capital murder and burglary and was sentenced to life imprisonment without parole and to a 30-year prison term. His two arguments for reversal relate to the composition of the jury.

We have decided his first contention, that a death-qualified jury is unconstitutional, adversely to his position. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983). We adhere to that holding.

Second, the defense moved to quash the jury panel on the ground that the Arkansas system of selecting jurors at random from the current list of registered voters, Ark. Stat. Ann. § 39-205.1 (Supp. 1985), does not result in a jury drawn from a fair cross-section of the community as a whole, because under this system blacks and persons between the ages of eighteen and thirty-four are under-represented. It is now insisted that the trial judge should have quashed the jury panel.

This particular challenge to a jury is a comparatively new one that has not been fully explored in other states. As far as we know, no court has yet sustained the argument. In Arizona such a challenge was rejected. State v. Bernal, 137 Ariz. 421, 671 P.2d 399(1983). In the case primarily relied upon by the appellant, the Supreme Court of California held that the defendant’s proof in support of his motion to quash made a prima facie showing of unconstitutionality, which the State should have been required to answer with proof. People v. Harris, 36 Cal. 3d 36, 201 Cal. Rptr. 782, 679 P.2d 433 (1984).

In the California case the defense presented convincing evidence that the use of the voter registration list in the selection of juries in Los Angeles County had resulted in a significant under-representation of blacks and Hispanics. Facts and percentages were based on questionnaires answered by almost a thousand jurors in Long Beach and Los Angeles. The Harris opinion noted that in California multiple sources for the identification of potential jurors were already being used in 29 of the 46 California counties and that after the Harris trial the use of multiple lists had been mandated by a new California statute.

We do not reach the constitutional issue, because the appellant’s proof in the trial court was so deficient that the motion to quash the panel could not reasonably have been sustained. In this court we cannot consider even the possibility of striking down the system of jury selection in Arkansas on the basis of the vague proof that has been submitted.

The defense introduced only certain testimony given by Professor Art English in a different case two years earlier. Dr. English may be an expert in the field of jury selection, but if so his qualifications as such are not shown. He has a Ph.D. in political science and was teaching that subject at U.A.L.R. Of course, political science does not necessarily have anything to do with the selection of juries. The witness said that he was familiar with “the relatively few studies related to the demographics of voter registration,” but the studies were not identified nor introduced into evidence. As far as the record shows, the views stated by Dr. English were his own personal beliefs.

He testified that the limited number of studies “tend to show that blacks and persons under the age of 30 are under-represented” on the registration rolls. He gave no percentages; so the under-representation may not be significant. He frankly conceded that the percentage of registered black voters in Pulaski County would increase in 1984, owing to increased registration efforts. The studies he relied on were based not on voter registration but on voter turn-outs. Even so, he expressed the opinion that the voter registration list for Pulaski County would reflect that black registrants comprise significantly less than the percentage of blacks in the total population. He at once added, “The above opinion is not verifiable,” because registration records do not show race. He said that without an accurate study he could not make a definitive judgment about the under-representation of persons under the age of 30 in Pulaski County. Dr. English’s entire testimony from the earlier case barely exceeds three pages in the typewritten record before us. It is fair to say that, except for population percentages based on census figures, his testimony contains no positive statement of any relevant fact.

In view of the deficiencies in the proof we must follow our settled rule of not deciding a constitutional question that is not squarely presented. We have examined other possible errors brought to our attention by the abstracts and briefs and find no reversible error in what appears to have been a fair trial.

Affirmed.

Purtle, J., not participating.


author: Darrell Hickman, Justice.

text:
    ARKANSAS MEDICAL SOCIETY v. ARKANSAS MEDICAL SOCIETY
    84-301
    695 S.W.2d 827
    Supreme Court of Arkansas
    Opinion delivered September 23, 1985

      Gibson Law Office, by: Charles S. Gibson, for appellant.

      Cearley, Mitchell & Roachell, by: Michael W. Mitchell, for appellee.
   Darrell Hickman, Justice.

Although this would appear to be a suit by the Arkansas Medical Society against itself, it is in fact a dispute between a society composed of over 2,000 doctors of medicine and osteology, which has existed as a legal entity in Arkansas since 1929, and a newly formed non-profit corporation by the same name. The newer organization is composed of health professionals, including nurse-practitioners, nurse-midwives, midwives, and physician assistants, and its purpose is to study and promote “low-cost practical approaches to health care, non-medical, . . . non-surgical approaches to health care when appropriate, . . . good health practices through education programs,” and similar purposes. The trial court approved the incorporation of the newer organization under the same name as the doctors’ organization.

The conflict arose because the doctors’ organization had not filed its articles of incorporation with the Secretary of State. In 1929, when the appellee was incorporated, that was not necessary. See Ark. Stat. Ann. § 64-1301 et seq. (Repl. 1957). This is not to say that the appellee had no right to legal protection of its name.

The trial court allowed the doctors’ organization to intervene in the proceeding after incorporation. After a hearing, the trial court made the following finding:

I don’t think that it would be proper for two societies to be operating in the State of Arkansas under the same name. I think it would be confusing. I think it would be against the intentions of the legislature because the legislature has passed various acts which authorizes the original Arkansas Medical Society to make certain selections for various committees and boards. ... the legislature, in this Court’s opinion, intended for the old Arkansas Medical Society to make those selections. If I allow two non-profit corporations to exist in this state under the same name would be chaos. . .

The court ordered the newer society to change its name within 30 days or its newly granted charter would be revoked. It appeals alleging three arguments for reversal of the trial court’s order: that the court was wrong in allowing the appellee to intervene, that the appellee failed to prove any actual deception, and that the court exceeded its jurisdiction in revoking the charter.

The trial court acted within its discretion under ARCP Rule 60 which provides:

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

As the trial court observed, there are at least two Arkansas statutes that permit the Arkansas Medical Society to select nominees to state health boards. See Ark. Stat. Ann. § 82-101 (Supp. 1983) and Ark. Stat. Ann. § 72-602 (Repl. 1979). Obviously, both societies cannot make such appointments and, just as obviously, the Arkansas legislature intended that the appellee make those nominations since the appellant was not in existence when the laws were passed. The articles of incorporation of the appellant even mention that one of its purposes is to “provide the Governor of the State of Arkansas with recommendations of qualified persons to be appointed to any state agency, department or board as provided by law.” The trial court was right when it said that the two societies could not co-exist. It was exercising its prerogative under ARCP Rule 60 in changing its order to correct an obvious mistake.

Since the court had that prerogative even without the appellee’s participation, the arguments concerning intervention and lack of proof of actual deception are meritless. The court did not exceed its jurisdiction because it did not revoke the charter of the appellant; it gave the appellant thirty days to change its name.

Affirmed.

Purtle, J., not participating.


text:
    Dwight C. LAWSON v. The CITY OF MAMMOTH SPRING, Arkansas, by and through its Duly Elected Mayor, Honorable Jerry SMITH
    CR 85-73
    696 S.W.2d 712
    Supreme Court of Arkansas
    Opinion delivered September 23, 1985

      Larry Dean Kissee, for appellant.

      David H. White and Winston Bryant, for the Arkansas Municipal League.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

The circuit court declared that the act creating the Mammoth Spring Municipal Court is not local legislation in violation of the Fourteenth Amendment to the Arkansas Constitution. We reverse, squarely basing our decision on Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 339 (1984).

Act 905 of 1975 was passed for the express purpose of creating a municipal court in Mammoth Spring, Arkansas, a town with a population of about 1,100 located on the Missouri/ Arkansas border in Fulton County. Salem is the county seat.

The trial court found, as the city argues on appeal, that since the court is necessary for the administration of justice, Act 905 is not unconstitutional. Legislation creating municipal courts has proliferated in recent years. In Littleton v. Blanton, supra, we announced that no longer will such legislation be automatically justified as necessary for the administration of justice. We said:

With respect to the so-called administration of justice exception, we announce that statutes relating to the administration of justice will no longer be held per se to be neither local or special within the meaning of Amendment 14. Of all areas of legislation, the administration of justice above all should be immune to the evils of discriminatory laws and pork-barreling which Amendment 14 was designed to end. While the Legislature has the authority to establish courts within the limits prescribed by the Constitution, it should strive to create a judicial system throughout the State which is as uniform as practical.

Further, we compared the differences between the legislation which created the Marked Tree Municipal Court (one of five in Poinsett County) with the general statutes authorizing municipal courts in Arkansas. Ark. Stat. Ann. § 22-701 et seq. We found that since the legislation could only apply to Poinsett County and the court it created differed in several ways from municipal courts in every other county, the legislation was local in violation of the Fourteenth Amendment to our constitution. As in Littleton, the differences in Act 905 and the general statutes are several: (1) Act 905 provides that the municipal judge of Mammoth Spring be a licensed attorney, 25 years of age or over. When Act 905 was enacted, Ark. Stat; Ann. § 22-704.4 provided that the municipal judge must have practiced law in Arkansas for at least four years. (2) Act 905 provides that the governing body of Mammoth Spring is to hire the municipal judge; Ark. Stat. Ann. § 22-703 (Repl. 1962) provides that municipal judges be elected. (3) Act 905 provides that the salaries of the municipal judge are to be set by the governing body of Mammoth Spring; Ark. Stat. Ann. § 22-704 (Repl. 1962) provides that the salary of the judge is to be set by the legislature except in county seat towns with less than 2,400 population. Mammoth Spring is not a county seat. (4) Act 905 provides that the municipal judge may appoint a clerk with the consent of the governing body of Mammoth Spring; Ark. Stat. Ann. § 22-713 (Supp. 1983) provides simply that the municipal judge may appoint a clerk. (5) Act 905 has no provision for disposition of costs, fees and fines; Ark. Stat. Ann. § 22-719 (Repl. 1962) makes provisions for disposition of the court revenues. The differences between Act 905 and the general legislation which regulates the creation of municipal courts in Arkansas bear no reasonable relation to the need of Mammoth Spring for a municipal court.

Therefore, following Littleton, we find that this act is unconstitutional and reverse the judgment of the trial court. The city filed a cross-appeal questioning the appellant’s standing and his failure to join necessary parties. The trial court readily rejected both arguments, as we do.

Dwight Lawson was convicted of destruction of property and theft in the court. He was fined $500 plus costs, sentenced to 90 days in jail, and ordered to pay restitution. Seventy-five days were to be suspended if he made restitution and paid the fine and costs within five days of the judgment. Rather than appeal his conviction, he filed suit for declaratory judgment that the legislation creating the court is unconstitutional and that his conviction is void. The city argues that Lawson would have had to appeal his conviction in order to challenge the constitutionality of the act; further, it is argued that Lawson is attempting to void his conviction through declaratory judgment. The trial court did not void the conviction and no argument is made on appeal that it should be voided. Just as the trial court did, we treat this as a declaratory judgment action pursuant to Ark. Stat. Ann. § 34-2501 (Repl. 1962). Lawson, being the recipient of a judgment by the court in question, is a person whose rights are affected by the legislation. Ark. Stat. Ann. § 34-2502 provides:

Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.

The Declaratory Judgment Act is to be liberally construed. Roberts v. Watts, 263 Ark. 822, 568 S.W.2d 1 (1978). To attack a statute a person merely has to show that the statute resulted in a prejudicial impact on him. Undoubtedly, Lawson fits in this category.

The other argument is the city council and the attorney general were not joined as necessary parties. The suit was filed against the mayor and the City of Mammoth Spring.

When an action is brought against a city, it is ordinarily sufficient to only name the city as a party, particularly where no ultra vires acts are alleged against particular officers or employees. See McQuillin, Municipal Corporation § 49.22 (1982). Naming the city and the mayor would certainly protect the interests of the city council in this case.

Moreover, notice of the proceedings was served on the attorney general. That is all that Ark. Stat. Ann. § 34-2510 requires. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982).

Reversed.

Purtle, J., not participating.


text:
    Billy Joe LINCOLN v. STATE of Arkansas
    CR 85-66
    696 S.W.2d 316
    Supreme Court of Arkansas
    Opinion delivered September 23, 1985

      John W. Settle, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

In Billy Joe Lincoln’s second appeal from his conviction for attempted first degree murder, he raises two procedural questions: one concerning an amendment to the charges, the other about the validity of the evidence of a prior conviction. Lincoln’s first conviction was reversed by the court of appeals in Lincoln v. State, 12 Ark. App. 46, 670 S.W.2d 819 (1984). Before the first trial, the trial court refused the state’s request to amend the information to allege prior convictions because it had been filed “too close to trial for the defense to be prepared.” This issue was not before the Court of Appeals. On retrial the state again asked to amend the information to allege three prior convictions, two from Arkansas and one from Missouri. This time the trial judge granted the state’s request, commenting that he did not find any intent to punish the defendant for the first successful appeal.

Lincoln argues that the doctrines of the law of the case and res judicata prevent such an amendment. The doctrine of law of the case generally requires that decisions in a single lawsuit, whether at the trial or appellate level, control later decisions in that same case. Here, we are asked to hold that a trial court’s decision not to allow amendment of an information, because the amendment was sought within ten days of trial, should have controlled in the retrial which took place much later. While it is clear the decision of an appellate court will be the controlling law of the case in a later trial, the trial court clearly was not, and should not have been, bound by its former decision in the case when the factual basis of the decision, i.e., the timeliness of the proposed amendment, was no longer a factor. Turner v. State, 251 Ark. 499, 473 S.W.2d 904 (1972).

The doctrine of res judicata prevents the relitigation of issues that have been, or might have been, litigated. The amendment was not denied at the first trial because it was wrong or illegal, but simply because it was untimely. Res judicata is not applicable.

We have held that amendments to an information are permitted under Ark. Stat. Ann. § 43-1024 (Repl. 1977), if the amendment does not change the nature or degree of the crime charged, and if the accused is not surprised by the amendment. Wilson v. State, 286 Ark. 430, 692 S.W.2d 620 (1985). The amendment in this case did not change the charge itself. Crofton v. State, 274 Ark. 319, 624 S.W.2d 448 (1984). See State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984). At the second trial it was not untimely nor deemed prejudicial. It was within the court’s discretion at the first trial to refuse the state’s amendment to the information, just as the ruling at the second trial was discretionary. The trial judge found no prejudice, and we find none.

Next, it is argued it was error to allow the state to introduce evidence of a conviction over ten years old which was not specified to be a felony. The evidence of the conviction was a certified judgment of the circuit court of Jackson County, Missouri. The charge was first degree robbery; Lincoln pleaded guilty to a reduced charge of stealing and received a three year prison term. Ark. Stat. Ann. § 41-1002 (Repl. 1977) provides that convictions in other jurisdictions are deemed felonies if either death or over one year imprisonment is authorized. The Missouri conviction satisfies that requirement.

Lincoln’s argument that the certificate is inadmissible because it is over ten years old and it does not show whether Lincoln had received an executive pardon fails because the state is not required to offer anything more than the certificate itself as evidence of a prior conviction. Ark. Stat. Ann. § 41-1003 (Supp. 1983).

Affirmed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Edward GLOVER v. STATE of Arkansas
    CR 85-122
    695 S.W.2d 829
    Supreme Court of Arkansas
    Opinion delivered September 23, 1985

      William R. Simpson, Jr., Public Defender, by: Donald K. Campbell III, Deputy Public Defender, for petitioner.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The accused defendant, Edward Glover, was arrested for forgery on May 3,1983. He has not yet been tried. He seeks to be absolutely discharged by a writ of prohibition since he has not been afforded a prompt trial. We grant the writ.

The accused, the victim, and the public are entitled to prompt criminal trials. In fact, the right to a speedy trial was deeply rooted in Anglo-American criminal justice long before the drafting of the United States Constitution. See Note, Speedy Trial and Excludable Delays Under the Arkansas Rules of Criminal Procedure: Norton v. State, 35 Ark. L. Rev. 591 (1982). Accordingly, we have adopted the speedy trial rules. See A.R.Cr.P. Rules 27 through 30.2. In order to ensure that prompt trials are held, the rules provide that an accused must be absolutely discharged if not promptly tried. Rule 30.1(a).

The accused petitioner, Edward Glover, was arrested for forgery on May 3,198 3. When arrested he gave his address as “P.O. Box 36, Woodson, Arkansas.” On May 5, 1983, he was taken before the Little Rock Municipal Court and was there released upon his own recognizance. He testified that he gave the same address, “P.O. Box 36, Woodson,” to the municipal court officials and was told that he would be notified when to appear in court. Under these circumstances his time for trial commenced running on May 3,1983, the date of his arrest. Rule 28.2(a). The State then had eighteen months from the date of the arrest to bring petitioner to trial. Rule 28.1 (c). He was not brought to trial within that period of time. Since the speedy trial rules have been prima facie violated, the burden is upon the State to show good cause for the untimely delay. Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982). The State recognizes its burden and contends that the delay should be excused because it did not know the whereabouts of the defendant. See Rule 28.3 (e). In order to prove that it did not know the whereabouts of the defendant, the State put on evidence that a deputy sheriff mailed a letter to defendant at P.O. Box 36, Woodson, Arkansas, and that it was not returned. However, the State failed to prove the contents of the letter or that the envelope had a return address. Thus, the State failed to prove that it gave the defendant notice of a trial date and that he failed to appear. Furthermore, the State failed to prove that the defendant was not at the address stated.

The petitioner and his mother both testified that he was available for trial during the entire period. Both testified that the petitioner lived in his mother’s home at all material times, excepting the one weekend per month when he attended National Guard drill. It is undisputed that his mother’s mailing address is P.O. Box 36, Woodson, Arkansas. He testified that he was never given a date to appear in court and, if he had been given one, he would have appeared.

The docket sheet reflects that petitioner’s case was passed in December 1983, in April 1984, and July 1984. Yet, no alias warrant was ever issued. There simply is no evidence that the defendant was unavailable or that he was notified of a court setting and failed to appear.

Petition for writ of prohibition granted.

Purtle, J., not participating.


text:
    John C. PULLAN, d/b/a SHEAR PLEASURE FAMILY HAIR CARE v. Julia P. FULBRIGHT, d/b/a JULIA’S SHEAR PLEASURE BEAUTY SALON
    85-79
    695 S.W.2d 830
    Supreme Court of Arkansas
    Opinion delivered September 23, 1985

      Floyd G. Rogers, for appellant.

      Eddie H. Walker, Jr., for appellee.
   Robert H. Dudley, Justice.

Since October 1980, appellee, Julia P. Fulbright, has operated a beauty salon in Fort Smith under the name of Julia’s Shear Pleasure Beauty Salon. Since March 1983, appellant, John C. Pulían, has operated a barber shop in Van Burén under the name of Shear Pleasure Family Hair Care. In August 1983, five months after appellant opened his barber shop, appellee registered the trademark “shear pleasure” with cutting shears above the word “shear” and surrounded by a border. Appellee then brought an action to enjoin appellant from alleged unfair competition through the use of her trade name. The trial court entered a decree enjoining appellant from using the trade name “shear pleasure.” We reverse and dismiss.

Trade names are afforded protection under the law of unfair competition. They are protected by a registration statute and by the common law. See Ark. Stat. Ann. § 70-539(e), § 70-550, and § 70-552 (Repl. 1979). Appellee does not contend that the trade name registration statute, § 70-540(e), affords her any protection, perhaps because she did not register her trademark until after appellant began using his trade name. However, she does contend that the common law, coupled with § 70-550 may afford her protection. The pertinent part of § 70-550 provides:

Likelihood of injury to. . .a trade name valid at common law, shall be grounds for injunctive relief notwithstanding the absence of competition between the parties or the absence of confusion as to the source of . . . services.

Appellant does not contend that the names themselves are sufficiently distinguishable so as to avoid confusion. See Shoppers Fair of Ark., Inc. v. Sanders Co., 207 F. Supp. 718, at 732-735 (W.D. Ark. 1962). Rather, he contends that the words “shear pleasure” are descriptive words which have not acquired a “secondary meaning” or a new significance by which the public recognizes appellee’s trade name in appellant’s business area. We agree.

Descriptive words may not be afforded the status of a trade name unless they have acquired a “secondary meaning.” The concept of “secondary meaning” has been explained as follows:

There are certain names, marks, and symbols which in their primary sense are merely generic or descriptive and do not ordinarily indicate the origin of goods or services. Such names, marks, or symbols, when used in their primary sense, cannot form the subject matter of a trade or service mark. However, a name, mark, or symbol by long and exclusive use and advertising by one person in the sale of his goods and services may become so associated in the public mind with such goods or services that it serves to identify them and distinguish them from the goods or services of others. When such an association exists, the name, mark, or symbol is said to have acquired a ‘secondary meaning’ in which the original user has a property right which equity will protect against unfair appropriation by a competitor.

Liberty Mut. Ins. Co. v. Liberty Ins. Co. of Tex., 185 F. Supp. 895, 903 (E.D. Ark. 1960).

Appellant testified that he decided to use the words “shear pleasure” in his trade name when he saw a coffee mug inscribed: “A hairdresser is shear pleasure.” He also testified that barbershops in Ozark and Clarksville, as well as Muskogee, Oklahoma, use the words “shear pleasure” in their names. Appellee testified that she got the idea for her trade name from a barbershop in Little Rock.

In Sav-A-Stop, Inc. v. Sav-A-Stop, Inc., 230 Ark. 319, 322 S.W.2d 454 (1959) we stated:

We agree that at common law the case at bar, due to the similarity of the names, borders on the class of cases wherein injunction would lie, but further search convinces us that in the use of words descriptive of a service, where the person using them has not used them over a long period of time substantially to the exclusion of all others who perform the same or similar services, such descriptive words will not be protected by injunctive relief, because one man cannot appropriate as his mark the usual words in the common language which would be used to describe the service rendered. In this case neither party contends that their names are a result of their own wit, but instead both admit that they got the idea from others in the same business who use the same name. The name is certainly not unique enough to either litigant from the facts presented to enable one to have its use to the exclusion of the other.

Here, as in Sav-A-Stop, both got the idea for their names from others. The name is descriptive, not distinctive, and strong evidence is required to show that appellee’s name has acquired a secondary meaning before it is entitled to common law protection. Not one single person testified that when they thought of “shear pleasure” they thought of appellee’s beauty shop.

Reversed and dismissed.

Purtle, J., not participating.


text:
    John H. SHERMAN v. G&H TRANSPORTATION, INC.
    85-85
    695 S.W.2d 832
    Supreme Court of Arkansas
    Opinion delivered September 23, 1985

      Killough & Ford, by: Robert M. Ford, for appellant.

      Fletcher Long, Jr., P.A., for appellee.
   Robert H. Dudley, Justice.

Plaintiff, John H. Sherman, sued four defendants, John Sherman, III, C.V. Raines, Diane Raines, and G&H Transportation, Inc. The trial court granted G&H Transportation, Inc.’s Motion for Summary Judgment on the plaintiffs complaint, and plaintiff appeals from that decision. The trial court made no finding as to whether hardship or injustice would occur if an immediate appeal were not allowed. Further, plaintiffs case against the remaining three defendants is not shown to be final. We, therefore, dismiss the appeal.

The order of summary judgment in the instant case is not appealable because it does not satisfy the requirements of Rule 54(b) of the Arkansas Rules of Civil Procedure. Rule 54(b) provides:

Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer that all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

The rule is applicable in cases involving multiple claims or multiple parties, and it requires two things: First, the trial court must direct the entry of a final judgment as to one or more but fewer than all of the claims or parties. Second, the trial court must make an express determination that there is no just reason for delay, that is, there is danger of hardship or injustice which an immediate appeal would alleviate. Tulio v. Arkansas Blue Cross & Blue Shield, Inc., 283 Ark. 278, 675 S.W.2d 369 (1984). The second requirement was not met in this case.

As noted in Tulio, id., the fundamental policy of the rule is still to avoid piecemeal appeals, so that the discretionary power vested in the trial court is to be exercised infrequently, in harsh cases. Here the discretionary power was not exercised, and the order of summary judgment is not yet an appealable order.

Appeal dismissed.

Purtle, J., not participating.


author: Steele Hays, Justice.

text:
    GRAIN DEALERS MUTUAL INSURANCE COMPANY v. Helen PORTERFIELD, Individually and as Administratrix of the ESTATE of Vernie PORTERFIELD, Deceased
    85-56
    695 S.W.2d 833
    Supreme Court of Arkansas
    Opinion delivered September 23, 1985

      Boswell, Tucker & Smith, for appellant.

      Curtis E. Rickard, for appellees.
   Steele Hays, Justice.

This is a wrongful death case. Helen Porterfield, appellee, brought suit for herself and the estate of her husband, Vernie Porterfield, who was electrocuted on July 19, 1983, while working at the football stadium of Malvern High School. Mrs. Porterfield filed suit against Grain Dealers Mutual Insurance Company, appellant, the public liability carrier of the Malvern Special School District. By third party complaint, Arkansas Power and Light Company was made a party defendant.

The issues of negligence and comparative fault were submitted to the jury by special interrogatories and a verdict of $ 131,127 was returned. The jury apportioned negligence between the parties at 75 percent to Malvern Special School District, 20 percent to Vernie Porterfield, and 5 percent to Arkansas Power and Light Company. Grain Dealers Mutual has appealed on the basis of three points of error: the testimony of E.L. Cody, called by appellee as an expert witness, should have been stricken; the trial court should have granted a defense motion for a directed verdict because there was no proof that negligence of the school district was a proximate cause of Vernie Porterfield’s death; and a mistrial should have been granted because counsel for Helen Porterfield told the jury in closing argument that if they found Vernie Porterfield fifty percent at fault that “ended the matter.”

We need not reach the first and third points, as we agree with appellant that the trial court should have directed a verdict for the defendants at the close of the plaintiffs case because there was no proof that any negligence by the defendants was a proximate cause of the death of Vernie Porterfield.

The test concerning the granting of a motion for a directed verdict by the trial court has been clearly stated. The evidence, with all reasonable inferences, is viewed in the light most favorable to the party opposing the motion, and given its highest and strongest probative value. When viewed in that light if the evidence is so lacking in substance that it would require that a jury verdict be set aside, the motion must be granted. Pritchard v. Times Southwest Broadcasting, Inc., 277 Ark. 458, 642 S.W.2d 877 (1982); Cowling v. Clinton Board of Education, 273 Ark. 214, 618 S.W.2d 158 (1981). Evidence is said to be substantial when it “is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or a conjecture.” Ford on Evidence, Vol. 4, Paragraph 549, page 276; DuPont v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).

The facts of the case are largely undisputed. In December of 1982 a tornado destroyed the press box of the football stadium at Malvern High School. The stadium had been built in 1936 by the WPA, and the press box contained a wiring system commonly used in that day, known as a two-wire Romex. With the adoption of the National Electrical Code about fifteen years ago, a three-wire system would have been required for the press box, the third wire providing a ground. The National Electrical Code was adopted by a Malvern City Ordinance.

When the press box was rebuilt in early 1983, two employees from the maintenance crew of the school district were assigned the task of rebuilding the press box. Although they realized that new construction required a three-wire system they installed a two-wire system since that was the system originally installed. No permit was obtained by the school district and, hence, there were no interim or final inspections of the electrical system as would have been required with a permit.

After the press box was rebuilt Mr. James McDonald was employed to construct a metal stairway at the rear of the stadium leading to the press box. Mr. McDonald hired Vernie Porterfield to help him and together they had completed the stairway, with the exception of the handrails.

Vernie Porterfield was working alone installing the handrails on the morning of the accident. He had arrived about 7:30 and parked his welding truck near the press box, draping the welding leads over a chain link fence adjacent to the stairway with one of the lead wires clamped to the metal stairway.

At about 10:30 a teacher for the district, Mr. M.D. Kennedy, noticed Mr. Porterfield slumped down between the chain link fence and the metal stairway. He began administering CPR although he could find no pulse or other vital signs. An ambulance attendant pronounced Mr. Porterfield dead some fifteen minutes later. Before the power was turned off Mr. Kennedy received a strong shock when he touched the fence. Others felt a light shock on touching the stairway. Mr. Porterfield’s grinder was found on a landing about halfway up the metal stairs plugged into a homemade extension cord belonging to Mr. Porterfield and probably made by him. The extension cord was plugged into a receptacle in the press box. The grounding prong on the male plug of the extension cord had been snipped off and the plug was inserted in the receptacle upside down, so that the polarity was reversed. Tests performed with a voltameter by an AP&L employee shortly after the accident showed the stairway was energized by 120 volts of electricity. The meter did not detect any voltage in the chain link fence.

The plaintiffs theory of negligence was that in rebuilding the press box the district had failed to obtain a permit and had failed to ground the electrical system in accordance with the National Electrical Code, there being no ground from the grounding terminal in the breaker panel to the receptacle in the press box where Vernie Porterfield had plugged in his extension cord. That theory of liability was negated, however, by the undisputed fact that Vernie Porterfield’s extension cord was plugged into the receptacle upside down, which could not have occurred if the grounding prong had not been removed. There was no disagreement among the electrical experts, whether called by the plaintiff or the defendants, that if the extension was in fact plugged in upside down, the absence of a completed ground in the electrical system of the press box meant nothing, as the presence of a ground would not have prevented the accident. This proof was undisputed and enables appellant to argue that proximate cause, an essential element of the plaintiffs case, is fatally lacking. We sustain the argument.

We have searched the record in vain for proof of proximate cause that might support the verdict. Nor has appellant in oral argument or written brief shown us where that proof is to be found. Citing AMI 501, appellant points out that causation need not rest on a single source, that two or more causes may work together to produce a result. Granted, but our problem with the proof is not choosing one of several possible causes, rather it is the absence of proof of any cause attributable to the defendants, of which it could be said except for this, Vernie Porterfield would not have died. The quantum of proof of causation is discussed in Prosser and Keeton on Torts, Fifth Edition, § 41, p. 269:

On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. Where the conclusion is not one within common knowledge, expert testimony may provide a sufficient basis for it, but in the absence of such testimony it may not be drawn.

We are cited to the opinion testimony of Mr. E. L. Cody, Superintendent of the Benton Electrical Department, that the stairs themselves should have been grounded because if someone were working with electrical tools and a leak occurred, energizing the stairs, no fuse could have blown because there was no ground path back to the panel box. But when we have given that testimony its strongest probative value, it comes up short because Mr. Cody failed to state an opinion, directly or fairly implied, that had the stairs been grounded Vernie Porterfield would not have been electrocuted. We cannot reach that crucial inference without supporting testimony, as it would require a knowledge of electricity which neither we nor the jury can be expected to possess, and the plaintiff’s failure to provide that proof was fatal to the case.

The judgment is reversed and the cause is dismissed.

Purtle, J., not participating.


author: David Newbern, Justice.

text:
    DIVISION OF SOCIAL SERVICES, Department of Human Services, State of Arkansas v. OAK HILLS CORPORATION
    85-80
    695 S.W.2d 836
    Supreme Court of Arkansas
    Opinion delivered September 23, 1985

      Carolyn Parham, for appellant.

      Smith, Jernigan & Smith, by: George O. Jernigan, Jr., for appellee.
   David Newbern, Justice.

The appellant Division of Social

Services (Social Services), reached an administrative decision requiring the appellee, Oak Hills Corporation, to pay back to it $23,169.00 because it determined it had overpaid Oak Hills Corporation in Medicaid reimbursements. Oak Hills Corporation appealed the decision to the circuit court. The court reversed the Social Services decision, and Social Services has appealed. There was no dispute at the trial court, and there is none here, about the facts. Rather than the usual issue as to whether the decision of the agency is supported by substantial evidence, we must decide whether the trial court was correct in determining that the agency’s decision was arbitrary, Ark. Stat. Ann. § 5-713(h)(6) (Supp. 1985), because it was based on an ambiguous regulation and not consistent with its previous interpretation of its regulation and in light of the reason given by the agency for its decision. We find the trial court was correct, and thus we affirm.

In 1979, Bob Welch was administrator of a nursing home run by Oak Hills Corporation. Welch owned an interest in Oak Hills Corporation. The nursing home property was owned by Oak Hills Manor, Inc., in which Welch also owned a substantial interest. Oak Hills corporation leased the nursing home from Oak Hills Manor, Inc. Because of Welch’s ownership interest in both corporations, the lease was correctly deemed by Social Services to be a lease from a “related party.”

An agreement between Social Services and Oak Hills Corporation specified that in return for Oak Hills Corporation furnishing nursing home services to persons eligible for Medicaid benefits, Social Services would reimburse Oak Hills Corporation “in amounts and under conditions determined by the Division [Social Services] and in accordance with the principles of the State’s Cost Related Reimbursement System.” The parties agreed: “To follow and comply with all Federal and State Laws and Federal and State Regulations to include 42 C.F.R. Sub Chapter B, Part 405, 449, and 450 and the Arkansas Social Services Reasonable Cost-Related Reimbursement Manual.”

The Arkansas Manual, to which the agreement referred, provided:

§ 3-6 COSTS OF RELATED ORGANIZATIONS
(a) Cost of service and supplies furnished by organizations related to the Facility by Common ownership by five percent (5%) or more equity, contract, control, interlocking directorates or officers will be recognized, at the cost to the related organization.
(b) Related organization can furnish services and supplies to a facility under the prudent buyer concept, provided the cost of such services and supplies are consistent with the costs of such items furnished by independent third party Providers in the same geographic area.
(c) These requirements apply to the sale, transfer, leaseback or rental of the property, plant or equipment or purchases of services of any facility or organization.

Social Services argues that this language limits lease payment reimbursement to Oak Hills Corporation to no more than the cost to Oak Hills Manor, Inc., incurred in providing the building. Oak Hills Corporation argues the language is ambiguous at best, and that Social Services should be responsible to reimburse reasonable “prudent buyer” rental because subsection (b) permits it and because Social Services had previously interpreted that language as permitting it.

We have no doubt that the manual provision was ambiguous. Subparts (a) and (b) conflict. It is equally clear that there is no ambiguity in 42 C.F.R. § 477.284 (1977) which says reimbursement to the services provider is limited to the lower of costs to the related organization (Oak Hills Manor, Inc.) or price of comparable services purchased elsewhere. This specific ambiguity in the state manual was recognized in State of Arkansas v. Heckler, No. C-84-464 (W.S.D.C., W.D. Ark. 1984), in which the Arkansas manual provision was compared with the federal provision cited above.

While Social Services argues that Oak Hills Corporation agreed generally to follow both the federal and state law, it does not contend that the manual provisions were not controlling. Rather, it argues we should interpret the Arkansas manual language to mean what the federal regulation says because 42 C.F.R. § 447.284, which was not mentioned specifically in the agreement, “. . . was the standard the appellant [Social Services] had to use when it drafted its State Plan. . . .” This argument is at best weak, especially when we look to the manner in which the state manual had previously been applied.

In the hearing which resulted in the agency’s decision, Tom Gray, a Social Services auditor, stated that when he, in 1982, disallowed the portion of the 1979 lease payment in excess of cost to Oak Hills Manor, Inc., he was aware it was “a reversal of previous actions.” He testified that the state manual had been in effect since 1978, that he was aware of § 3-6(b) allowing reimbursement to a “related party” of a reasonable amount under the prudent buyer concept, and that up until the time he audited Oak Hills Corporation in 1981 “reasonable” leases had been allowed. Ronald Anderson, another Social Services auditor, also testified without contradiction that he audited the nursing home in 1979 and that while it was noted in the audit that the related party lease existed he did not show any disallowance of it. Although he testified it was not his function to disallow a reimbursement on the related party basis, he did not know of any during the 1978 through 1980 period that had been disallowed.

Social Services presented no evidence showing that it had interpreted its regulation from 1978until 1981 in a manner which would restrict the lease reimbursement of Oak Hills Corporation to the cost incurred by Oak Hills Manor, Inc.

If an administrative agency’s adjudication is “arbitrary, capricious, or characterized by an abuse of discretion,” it is proper for the court to which it is appealed to reverse. Ark. Stat. Ann. § 5-713(h)(6) (Supp. 1985). We agree with the circuit court that it was arbitrary for Social Services to interpret its ambiguous regulation in a way which would have permitted the reimbursement now disallowed and then to reinterpret it inconsistently and without good reason. The problem was caused by the ambiguity of the agency’s regulation. It was arbitrary for Social Services to lay the burden on Oak Hills Corporation. The Social Services decision states as a finding of fact that its regulation, i.e., the manual provisions discussed above, required limitation of reimbursement to the “lower of either (1) the costs of ownership, or (2) the costs for comparable services rendered by third parties in the same geographical area.” Although the regulation was changed to read that way in 1981, that is not what it said in 1979. For Social Services to say, as it did in its decision, that the old regulation’s intent was clear because of what the new one says is not reasonable. This is the kind of “willful and unreasoning action” of which we spoke in Partlow v. Arkansas State Police Commission, 271 Ark. 351, 609 S.W.2d 23 (1980). Compare Note, 87 Harv. L. Rev. 629, 651-653 (1974).

Affirmed.

Purtle, J., not participating.


author: Per Curiam.

text:
    Patricia BROWNING v. STATE of Arkansas
    697 S.W.2d 86
    Supreme Court of Arkansas
    Opinion delivered September 23, 1985

      Gregory E. Bryant, for appellant.

      Kenneth G. Torrence, for appellee.
   Per Curiam.

Appellant Patricia Browning pleaded guilty to aggravated assault. Imposition of sentence was suspended for two years. When the suspended sentence was subsequently revoked, appellant’s attorney, Kenneth Torrence, did not appeal the revocation or seek to be relieved as counsel in the trial court. Appellant contends in her motion for belated appeal that a part of her agreement with counsel was that he would appeal the court’s order. Counsel filed a response to the motion for belated appeal in which he denies that he agreed to appeal. He states that he in fact informed appellant that he would not appeal unless paid to do so and heard no more from her.

Criminal Procedure Rule 36.26 states that counsel, whether retained or appointed, shall continue to represent a convicted person throughout appeal unless permitted to withdraw by the trial court or this Court, but we recognize that a convicted defendant may waive his right to appeal by failure to inform counsel of his desire to appeal. Henderson v. State, 278 Ark. 107, 643 S.W.2d 107 (1982). If the convicted defendant who is able to pay the costs of appeal desires an appeal but refuses to pay for it, counsel should ask to be relieved in the trial court. Counsel in this case was not relieved in the trial court; therefore, he remains responsible for the appeal if it is determined that the appellant told him of her desire to appeal.

There are instances where it can be determined from the motion and counsel’s response whether the defendant waived appeal, but in the case before us, the allegations of appellant and counsel are in direct conflict. Since it is apparent that there are questions of fact which cannot be resolved on affidavits, we must deny appellant’s request for belated appeal. Schuster v. State, 261 Ark. 730, 551 S.W.2d 210 (1977). The denial, however, is without prejudice to her applying to the trial court for a belated appeal evidentiary hearing on the question of whether she voluntarily waived her right to appeal by her failure to communicate to counsel her desire to appeal.

In the event a hearing is held, the trial court shall make written findings of fact and conclusions of law. The appellant may appeal from an adverse ruling. If the ruling is favorable, she may file the findings and conclusions and the record of the hearing in support of a second motion for belated appeal in this Court.

Motion denied without prejudice.

Purtle, J., not participating.


text:
    Avery Nathan RICHARDSON v. STATE of Arkansas
    695 S.W.2d 379
    Supreme Court of Arkansas
    Opinion delivered September 23, 1985

      Carl J. Madsen, P.A., by: Mark A. Colbert, for appellant.
    No response.
   Per Curiam.

The appellant has moved for a rule on the clerk to permit the late filing of the record and docketing of appeal in this criminal case.

Although the motion states “the attorney” miscalculated the time for perfecting the appeal, it does not say who the responsible attorney was.

We will grant the rule on the clerk and permit the docketing of the appeal upon receipt of a proper motion accompanied by an affidavit from an attorney accepting responsibility for the failure to file the record on time. See per curiam order of February 5, 1979, 265 Ark. 964.

Motion denied.

Purtle, J., not participating.


text:
    Steve K. FENDER v. Carrol GRAVETT, Pulaski County Sheriff
    85-234
    695 S.W.2d 839
    Supreme Court of Arkansas
    Opinion delivered September 26, 1985

      Phillip A. McGough, for appellant.
    No response.
   Per Curiam.

Motion for writ of habeas corpus, by agreement of counsel for the parties is considered and treated as an appeal.

A stay of execution of sentence is granted upon the posting of a $2,500 bond approved by the clerk of this court.

The trial court’s restraining order of May 23, 1985 is not stayed and shall remain in full force and effect.

The preparation of the record, transcripts and briefs shall be expedited by counsel in accordance with Rule 16.

Purtle and Newbern, JJ., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    James L. CARTER v. F. W. WOOLWORTH CO.
    85-102
    696 S.W.2d 318
    Supreme Court of Arkansas
    Opinion delivered September 30, 1985

      Thomas & Nusshaum, P.A., for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellee.
   Jack Holt, Jr., Chief Justice.

This case presents a dispute over the coverage provided by an insurance policy. The trial court granted appellee’s motion for summary judgment/motion to dismiss and dismissed the complaint with prejudice. It is from that order that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(o). We affirm the trial court’s dismissal of the action.

The appellant, James Carter, was an employee of appellee Woolworth, and participated in a group insurance policy which paid $50,000 after one year of total disability provided the insured is then permanently disabled. On July 18, 1978, Carter was injured and as a result became permanently disabled and never returned to work. On June 16, 1979, a memo was sent by Woolworth to all management employees informing them that a new insurance policy through the same company, I.N.A. Insurance Co., wpuld be in force as of July 1, 1979. Carter received a copy of the memo. The second policy paid $250,000 after one year for a permanent disability. The memo informed employees that anyone coveted under the current plan must re-enroll to maintain coverage because protection under the old policy would end June 30, 1979.

Accompanying the memo was a booklet explaining the new insurance policy. The policy provided that in the event an eligible person applying for coverage was not regularly performing the duties of his occupation on the effective date of the insurance, the effective date of the insurance for that person would be the first day of the month following the date of return to the regular performance of his duties. The policy further stated that it covered only accidents occurring during the term of the policy.

Carter paid 14 premiums under the new policy and then applied for the $250,000 in benefits. When the insurance company refused to pay, he filed suit against them.

I.N.A. admitted that appellant was entitled to $50,000 under the old policy and deposited that sum plus a refund of the 14 premiums in the registry of the court. The court granted I.N.A.’s motion for summary judgment and dismissed the complaint with prejudice, turning the funds in the court registry over to Carter. After the summary judgment was granted but while motions were pending concerning prejudgment interest and attorney’s fees, Carter amended his complaint and joined Woolworth as a party, alleging that Woolworth was the agent, servant and employee of I.N.A. The proceedings were held in abeyance while Carter pursued an appeal from the summary judgment.

In an unpublished opinion on March 7, 1984, the Court of Appeals affirmed the summary judgment.

Woolworth filed a motion to dismiss for failure to state facts upon which relief can be granted pursuant to Ark. R. Civ. P. 12(b)(6) on August 11,1982. That motion was denied on October 20,1982. On September 4,1984, Woolworth filed an answer and a second 12(b)(6) motion to dismiss. That motion was denied on October 8,1984 and Carter was required to amend his complaint to state a cause of action. After an amended and substituted complaint was filed, Woolworth again alleged in its answer that Carter failed to state facts upon which relief could be granted and on December 14, 1984 filed a motion styled as a motion for summary judgment/motion to dismiss.

The latter motion was granted by the trial court. In its order, the court did not specify whether it was granting the motion for summary judgment or the motion to dismiss. We can safely assume that the court granted summary judgment since the court stated in its order that the decision was based on the motion, the response filed by Carter, the reply filed by Woolworth, and the briefs submitted. Arkansas R. Civ. P. 12(b) provides that if, when considering a Rule 12(b)(6) motion to dismiss, matters outside the pleading are considered by the court, the motion is treated as one for summary judgment.

We have also held however, that even if a motion is treated as one for summary judgment, it is incorrect to base the decision on allegations in briefs and attached exhibits. Guthrie v. Tyson Foods, 285 Ark. 95, 685 S.W.2d 164 (1985); Ark. R. Civ. P. 56(c). Nevertheless, in a similar situation we affirmed the decision in Guthrie because the result reached by the court was correct. See Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979).

The same principle is applicable in this case. The trial court was correct in granting appellee’s motion. The complaint was subject to dismissal pursuant to Rule 12(b)(6), because it failed to state facts upon which relief could be granted. When a complaint fails to state sufficient facts, we have held that an appellate court may recognize that flaw and sustain the trial court if its result is correct. St. John v. Lockhart, 286 Ark. 234, 691 S.W.2d 148 (1985).

Appellant’s present claim is stated in his amended and substituted complaint as follows: “Woolworth, acting as his insurance broker, misrepresented to him the terms of the policy by leading him to believe that as an employee of Woolworth he would be covered in event of disability by I.N.A. Insurance Co.”

This allegation is simply not a statement of facts showing the pleader is entitled to relief. See Guthrie v. Tyson Foods, supra. The memo sent by Woolworth to its management employees, and attached to appellant’s complaint as Exhibit A, explained that the new plan would replace the current one on July 1, 1979, highlighted the improvements, and stated that employees covered under the current plan must re-enroll under the new program to maintain coverage. No statement was made in the memo which can be interpreted as representing to the appellant that he would be covered under the new plan, given the fact that his disabling injury had already occurred.

In a civil proceeding the allegations in a complaint are presumed to be true. In determining whether a cause of action has been stated, however, that does not mean that a bare allegation of misrepresentation can overcome an accompanying exhibit, here the memo, which plainly refutes the allegation. St. John v. Lockhart, supra. Accordingly the complaint was properly dismissed with prejudice and the judgment is affirmed.

Affirmed.

Purtle, J., not participating.


text:
    GREEN FOREST PUBLIC SCHOOLS v. Hardy HERRINGTON
    85-83
    696 S.W.2d 714
    Supreme Court of Arkansas
    Opinion delivered September 30, 1985

      Vowell & Atchley, by: Stevan E. Vowell, for appellant.

      Cearley, Mitchell & Roachell, by: Marcia Barnes, for appellee.
   Jack Holt, Jr., Chief Justice.

At issue in this case is the non-renewal by the Board of Directors of the Green Forest Public School of Hardy Herrington’s teaching contract for the 1983-84 school year. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(c) as we are being asked to construe the Teacher Fair Dismissal Act of 1979, Ark. Stat. Ann. §§ 80-1264 — 80-1264.10 (Repl. 1980).

When this litigation arose the appellee, Hardy Herrington, was a non-probationary fourth year teacher, teaching social studies at the Green Forest Public Schools. The appellant school board received notice that there would be a reduction in Minimum Foundation Program Aid Funds for the 1982-83 school year. The appellant had already experienced financial difficulties at the time this notice was received. At a school board meeting February 7,1983, the school superintendent made recommendations concerning the reduction of expenditures. One of the recommendations was to eliminate a teaching position in both the elementary and secondary levels. At a school board meeting on March 21, 1983, the board voted to eliminate a social studies teaching position and further voted to eliminate the appellee’s position, due to the fact that the appellee had the least seniority within the social studies department. Prior to the March meeting, an elementary teacher and a secondary teacher resigned their positions.

The appellee was notified of the board’s action verbally and by certified mail. He then filed a written grievance with the board and requested a hearing. The hearing was held and the board, in a special session on May 3,1983, voted to uphold its prior decision.

Appellee appealed to the Carroll County Circuit Court which conducted a hearing on June 1, 1984. At the hearing, the transcript of the school board proceedings was introduced and additional testimony and exhibits were received. The trial court found that the appellant had not complied with the notice requirements of the Teacher Fair Dismissal Act and that the appellant acted arbitrarily, capriciously and discriminatorily in applying its hiring and firing policies. Accordingly, the trial court ordered the appellee reinstated with back pay.

Appellant filed a motion for new trial requesting credit against the judgment rendered for the amount of unemployment benefits received by appellee during the 1983-84 school year. The motion was denied. It is from the trial court’s order reinstating the appellee and the denial of appellant’s motion for new trial that this appeal is brought. We affirm the trial court.

The appellant first argues that the school board did comply with the notice requirements of the Teacher Fair Dismissal Act of 1979. This act was repealed, effective July 4, 1983, by the Teacher Fair Dismissal Act of 1983, Ark. Stat. Ann. §§ 80-1266 — 80-1266.9, 80-1266.11 (Supp. 1985). However, the 1979 Act controlled at the time the board made its decision.

Section 4 of the 1979 Act, codified as Ark. Stat. Ann. § 80-1264.3 (Repl. 1980) provides in pertinent part:

Every contract of employment hereafter made between a teacher and the board of directors of a school district shall be renewed in writing . . .; unless . . . the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed ... A notice of nonrenewal shall be mailed . . . to the teacher ... A teacher who has completed three (3) successive years of employment ... is deemed to have completed the required probationary period. The notice of recommended nonrenewal of a teacher who has completed a probationary period of employment shall include a statement of the grounds for such recommendation.

Section 80-1264.8 provides that a teacher who has received a notice of recommended non-renewal may file a written request with the school board for a hearing. Section 80-1264.9(a) provides that at the conclusion of the hearing with respect to the non-renewal of a teacher contract, the board shall take action on the recommendations by the superintendent as to the non-renewal of the contract.

We have held that substantial compliance with the notice requirement of § 80-1264.3 is sufficient, absent a showing that prejudice resulted from want of strict compliance. Lee v. Big Flat Public Schools, 280 Ark. 377, 658 S.W.2d 389 (1983). Therefore the question we are presented with is whether the board substantially complied with the notice requirement by conducting a hearing on appellee’s non-renewal after the decision had been made.

In a memorandum opinion, the trial court noted that “[n]o effort was made to notify [appellee] of the recommended action before the board voted as required by the terms of Ark. Stats., sec. 80-1266, et seq., but notice was given after the fact.” The court found that there was no question that the Teacher Fair Dismissal Act was not complied with procedurally and that the decisions of this court all “require that notice and hearing be afforded the teacher before a decision on termination of his contract be made.” The court concluded:

Here the board sent notice to Plaintiff that his contract would not be renewed (having already decided) and giving him the right to request a hearing. The hearing was held, a record made, and the previous decision adhered to. This procedure probably comports to the requirements of due process, but it does not comply with the specific requirements of the Teacher Fair Dismissal Act.

We must affirm the trial court’s findings of fact if they are not clearly erroneous. Lee v. Big Flat Public Schools, supra; Ark. R. Civ. P. 52. In reviewing the proceedings, “[i]t is not our function to substitute our judgment for the circuit court’s or the school board’s,” Moffitt v. Batesville School Dist., 278 Ark. 77, 643 S.W.2d 557 (1982).

This court has held that pursuant to the Teacher Fair Dismissal Act of 1979, “a nonprobationary teacher was entitled to a statement of the reasons for a proposed non-renewal and to a hearing before the board reached its decision not to renew. §§ 80-1264.3 and -1264.8,” Burden v. Hayden, 275 Ark. 93, 627 S.W.2d 555 (1982). See also Fullerton v. Southside School Dist., 272 Ark. 288, 613 S.W.2d 827 (1981); Maxwell v. Southside School Dist., 273 Ark. 89, 618 S.W.2d 148 (1981); McElroy v. Jasper School Dist., 273 Ark. 143, 617 S.W.2d 356 (1981).

Because the hearing over appellee’s non-renewal was conducted after the decision had been made, the board failed to substantially comply with the requirements of § 80-1264.3. The trial court’s conclusion therefore was correct.

The appellant also challenges the trial court’s finding that the board applied its policies in a discriminatory fashion. The trial court based its finding on the following facts. The appellee was certified to teach English and social studies and had taught both subjects at Green Forest. The school board adopted a policy to employ personnel with less experience because of the salary difference. The superintendent testified that appellee’s social studies position was eliminated pursuant to the board’s policy of eliminating one elementary and one secondary school position, and that appellee had the least seniority in that department. “Yet”, the court found, “the board’s announced policy was to employ teachers with less seniority in order to reduce the amount of pay.” The court noted that two teachers were kept and assigned appellee’s classes because they were senior to him yet the contract of another teacher, Ms. Maxwell, to whom appellee was senior, was renewed and appellee’s contract wasn’t. The reason given for retaining Ms. Maxwell was that appellee was not certified in speech. The court stated, “[ijnterestingly, when Ms. Maxwell resigned during the summer of 1983, she was replaced with a person not certified in Speech and with no teaching experience. It does not seem necessary to labor the point that the board’s policies were applied in a discriminatory manner.”

In so holding, the trial court noted that although the board was attempting to solve a legitimate problem of budget, it must nevertheless “apply the hiring and firing criteria' in a uniform and non-discriminatory manner.” We concur in that judgment. School boards unquestionably have the right to establish guidelines for necessary reductions in the teaching force. When they do so however, they must apply these guidelines uniformly. It was in the application, not the formation, of its policies that the appellant erred.

The appellant raises two other points in this appeal. It is argued that the court erred in receiving additional evidence to supplement the record of the hearing before the school board. Arkansas Stat. Ann. § 80-1266.9(d) (Supp. 1985) provides that a non-probationary teacher can appeal a school board decision to circuit court and that “[additional testimony and evidence may be introduced on appeal to show facts and circumstances showing that the termination or nonrenewal was lawful or unlawful.” This section was effective at the time of the trial of this action on June 1, 1984 and therefore governs this situation.

The appellant’s final argument concerns mitigation of damages. In a motion for new trial, based on an error in the assessment of the amount of recovery, the appellant asked the court for a credit against the judgment for unemployment compensation benefits received by the appellee from May 1983 through February 1984 in the amount of $5,984.

Although the appellee testified at the trial that he received unemployment benefits, the appellant did not make this argument for mitigation of damages until it filed its motion for new trial. We have refused to address such an argument when an appellant fails to present it to the trial court until after filing its motion for a new trial. Sharp Co. v. Northeast Ark. Planning & Consulting Co., 269 Ark. 336, 602 S.W.2d 627 (1980), rehearing denied. Here, however, we will address this issue since the evidence, in the form of appellee’s testimony, was before the trial court.

It is a general rule that “recoveries from collateral sources do not redound to the benefit of a tortfeasor, even though double recovery for the same damage by the injured party may result,” Amos, Adm’x v. Stroud & Salmon, 252 Ark. 1100, 482 S.W.2d 592 (1972); Vermillion v. Peterson, 275 Ark. 367, 630 S.W.2d 30 (1982). The question is whether the collateral source rule applies to employment situations and, specifically, whether unemployment compensation is a collateral source. This is an issue of first impression in Arkansas, but other courts have held that with regard to damages for breach of an employment contract, unemployment benefits received were not deductible by the employer in mitigation of damages. 22 Am Jur 2d Damages § 209, p. 293 (1965). Furthermore, an Arkansas federal district court has held that unemployment compensation benefits are. a collateral source and cannot be used to offset a judgment against a tortfeasor. Collins v. Robinson, 568 F. Supp. 1464 (D.C. Ark. 1983). Accordingly, we adopt this application of the collateral source rule and hold that appellee’s unemployment benefits should not be deducted from his award of back pay.

Affirmed.

Purtle, J., not participating.


text:
    David Tracy HILBURN v. Shelly C. HILBURN
    85-81
    696 S.W.2d 718
    Supreme Court of Arkansas
    Opinion delivered September 30, 1985

      Raymond C. Smith, for appellant.

      Matthews, Campbell & Stephens, by: David R. Matthews, for appellee.
   George Rose Smith, Justice.

This is a divorce case. In July, 1979, the parties eloped and were married in West Siloam Springs, Oklahoma. At that time David, aged 20, had just completed a three-year enlistment in the army and was living with his parents in Bentonville, Arkansas. Shelly, 16, was still in high school and lived with her parents in nearby Lowell. After a month or so in Colorado the couple returned to Arkansas and lived here for about nine months, with David then re-enlisting in the army at Little Rock.

The couple next lived for two years in Maryland, where David was stationed at Fort Meade. During that time their son, David, Jr., was born in a military hospital in Washington, D.C., in September 1980. In May, 1982, David was transferred to West Germany, where Shelly and the child joined him in August. Marital difficulties had already begun and continued there. In May, 1983, without David’s prior knowledge, Shelly brought the child to Arkansas. David countered by coming to Arkansas in June, taking the child without Shelly’s consent, and returning to West Germany. A few days later, on June 24, 1983, Shelly brought this suit for divorce in Benton County, Arkansas, where she was living. In March, 1984, Shelly went to Germany and stayed a few weeks. There she served her complaint on David and visited David, Jr., at times. She returned alone to Arkansas in late April.

The trial court held three hearings, in May, July, and August, 1984. David obtained an assignment to temporary duty in North Carolina so he could participate in the trial. Both parties and their witnesses testified. The court’s final decree awarded Shelly a divorce and custody of the child, fixed child support at $40 a week, and specified visitation privileges for David. The appeal comes to us under Rule 29(l)(c).

In the first of three arguments for reversal David questions Arkansas’s jurisdiction to grant the divorce. We see no real doubt about our jurisdiction. Both parties were residents of Arkansas when they married. Arkansas was also their last matrimonial domicile before David entered the army. His temporary assignments did not affect his own domicile, which was either Arkansas or Florida. Buck v. Buck, 207 Ark. 1067, 184 S.W.2d 68 (1944). Still less would the military transfers affect Shelly’s domicile, which has continued to be Benton County, Arkansas. The combination of Shelly’s domicile and the matrimonial domicile in Arkansas leaves no doubt about the jurisdiction of the trial court to grant the divorce. Leflar, American Conflicts Law, §§ 222-224 (3d ed., 1977). David, having testified that he will pay child support if so ordered, does not question that part of the decree.

The court’s jurisdiction to award custody is almost equally clear. Concededly Arkansas is not the child’s home state as that term is defined in the Uniform Child Custody Jurisdiction Act, Ark. Stat. Ann. § 34-2702(5) (Supp. 1985), because David, Jr., has not resided here for the requisite six months. Nevertheless, we think it to be in the child’s best interest for Arkansas to assume jurisdiction in view of Shelly’s significant connections with Arkansas and the availability of evidence here concerning the child’s future care and welfare. § 34-2703(a)(2).

Equally important, we emphasize Section 34-2703(a)(4), which confers jurisdiction to decide child custody when “it appears that no other state would have jurisdiction under prerequisites substantially in accordance” with the preceding subsections of Section 34-2704(a). Shelly has been an Arkansan at least since her high school days. As far as the record shows, all four of the child’s grandparents still live in Benton County. David’s present residence is not clear, but apparently it was in Arkansas during the early months of the marriage.

No other jurisdiction offers comparable contributions to the best interest of the child. The couple’s transient residence in Maryland has long since been immaterial. David testified that he lived in Florida from 1973 to 1976, enlisted in the army there in 1976, and has shown Florida as his residence on his military records, but he offered no other pertinent information about possible Florida connections. In West Germany there was a temporary emergency order vesting custody in David, but that proceeding was dismissed by the German court before the hearings in this case. Apparently Germany exercised jurisdiction only to meet an emergency. David testified in August, 1984, that he then had nine more months to serve in Germany and would be returning to the United States on June 25, 1985. His enlistment was to expire five days after that. He is a specialist fifth class in the army and apparently expects to re-enlist. It is not argued that the West German courts have custody jurisdiction, nor would there be a sound basis for that conclusion. The custody jurisdiction of the Benton Chancery Court, by elimination if not otherwise, appears to be beyond dispute.

Finally, on the merits David argues that there was insufficient corroboration of Shelly’s testimony about her ground for divorce. In a contested case like this one the corroboration may be very slight. We find the supporting testimony of Joyce Hastings and of Shelly’s mother to be sufficient.

Affirmed.

Purtle, J., not participating.


text:
    ALCOHOLIC BEVERAGE CONTROL BOARD v. Honorable Lee MUNSON, Chancellor
    85-76
    696 S.W.2d 720
    Supreme Court of Arkansas
    Opinion delivered September 30, 1985

      Steve Clark, Att’y Gen., by: Tim Humphries, Asst. Att’y Gen., for petitioner.

      Paul Johnson, for respondent.
   Darrell Hickman, Justice.

While an election contest appeal was pending in this court, the respondent issued an injunction against the Arkansas Beverage Control Board, ordering it not to comply with the election results. The circuit court had refused precisely the same request for relief; that is, a request to prohibit the wholesalers from delivering or selling liquor in the precinct voted dry. The action by the chancery court was a usurpation of the power of the circuit court, which clearly had jurisdiction of the matter. Finding that the chancery court was wholly without jurisdiction, the injunction is dissolved.

During the 1984 general election, a local option election was held in Precinct 614 of Pulaski County, to determine if that precinct would be wet or dry. The majority voted dry. Tommy Majors, a retail liquor store owner, filed an election contest suit in Pulaski County Circuit Court. The complaint was dismissed January 14, 1985.

After the dismissal, the ABC Board directed the wholesalers to stop servicing retail liquor outlets in the precinct. Majors asked the circuit court to stay the ABC Board from enforcing the directive. The circuit court denied the stay on March 21, 1985. Six days later, Majors filed a motion for findings of fact and conclusions of law which the circuit court denied on April 1,1985. Majors appealed from the ruling the next day.

On the same day the circuit court denied his motion, Majors joined with other liquor dealers to petition the Pulaski County Chancery Court to issue an injunction ordering the ABC Board to cease its restriction of liquor sales. This was precisely the motion denied by the circuit court March 21. However, the respondent granted the injunction on April 2, 1985, to continue until the appeal from the election contest suit is resolved here. We granted a temporary stay of the respondent’s injunction pending presentation of this petition.

The chancery court did not have jurisdiction because this is an election contest, and election contests by statute are the exclusive domain of the circuit court. Ark. Stat. Ann. § 3-1001 (Repl. 1976).

The respondent raises numerous arguments to justify the injunction. He first argues that a writ of prohibition does not lie without an objection to the lower court’s jurisdiction being raised there. Midwest Business, Inc. v. Munson, 274 Ark. 108, 622 S.W.2d 187 (1981). The ABC Board raised the issue of jurisdiction in a pleading and that is sufficient. Platt v. Ponder, 233 Ark. 682, 346 S.W.2d 687 (1961). It is argued that the chancery court has jurisdiction to issue injunctions. The underlying action is the determining factor of the chancery court’s jurisdiction — not the fact that an injunction was issued. The question is raised whether a writ of prohibition is the proper remedy in this case. In Curry v. Dawson, 238 Ark. 310, 380 S.W.2d 287 (1964), a similar case, we decided that “prohibition is the proper remedy to prevent the chancery court from exceeding its jurisdiction on matters pertaining to an election contest.” The respondent argues that since his action is concluded, appeal is the proper remedy. The respondent’s action was taken wholly without jurisdiction and is therefore void. See Beaumont v. Adkisson, 267 Ark. 511, 593 S.W. 2d 11 (1980) and Axley v. Hammock, 185 Ark. 939, 50 S.W.2d 612 (1932).

Writ of prohibition granted.

Purtle, J., not participating.


author: Robert H. Dudley, Justice. Robert H. Dudley, Justice.

text:
    Edward GAY, et al. v. The CITY OF SPRINGDALE, Arkansas, and the SPRINGDALE CITY COUNCIL
    85-95
    696 S.W.2d 723 698 S.W.2d 300

      Supreme Court of Arkansas
    Opinion delivered September 30, 1985
    [Supplemental Opinion on Denial of Rehearing November 12, 1985.]

      Evans & Evans, by: James E. Evans, Jr., for appellant.

      Herdlinger, Jacoway & Stanley, P.A., by: David S. Herdlinger, for appellee.

       Purtle, J., not participating.

   Robert H. Dudley, Justice.

The City Council of Springdale adopted an ordinance which proposed the annexation of five separate tracts of land totaling 7,000 acres. The land was predominantly used for agricultural purposes. An election was held, and the vote was in favor of the annexation. The remonstrants challenged the annexation in circuit court. The trial court upheld the annexation. We reverse.

The first paragraph of our annexation statute provides that a city may annex lands when one of five criteria is met.

Any municipality may . . . adopt an ordinance to annex lands contiguous to said municipality, provided the lands are either (1) platted and held for sale or use as municipal lots; (2) whether platted or not, if the lands are held to be sold as suburban property; (3) when the lands furnish the abode for a densely settled community, or represent the actual growth of the municipality beyond its legal boundary; (4) when the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or (5) when they are valuable by reason of their adaptability for prospective municipal uses.

Ark. Stat. Ann. § 19-307.1 (Repl. 1980).

The five criteria listed in the first paragraph of the statute are disjunctive, and annexation may be proper when any one of the five conditions is met. Faucett v. City of Atkins, 248 Ark. 633, 636, 453 S.W.2d 64, 67 (1970).

However, the statute also contains a second paragraph. Before a 1975 amendment, the second paragraph, in part, provided “lands shall not be annexed when they are. . . used only for purposes of agriculture or horticulture. . . .” We interpreted the second paragraph to mean that land used primarily for agriculture could not be annexed to a city, even if one of the five conditions of the first paragraph was met. Saunders v. City of Little Rock, 257 Ark. 195, 515 S.W.2d 633 (1974). Shortly after our decision, the General Assembly modified the second paragraph to provide “lands shall not be annexed when they. . . have a fair market value . . . only for agricultural or horticultural purposes and the highest and best use of said lands is for agricultural or horticultural purposes. . . .” Thus, the prohibition against annexing lands being used for agricultural or horticultural purposes is no longer absolute. Under the current statute such lands may be annexed to a municipality if the highest and best use of those lands is for something other than agriculture or horticulture and one of the five criteria of the first paragraph of the statute is met. Holmes v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985).

In the case before us, the lands sought to be annexed are primarily used for agricultural purposes, but the highest and best use is for something other than agriculture. Accordingly, the tracts are subject to annexation if any one of the criteria of the first paragraph is met.

The procedural rules are well settled to determine whether any one of the criteria is met: A majority of electors voting in favor of annexation makes a prima facie case for annexation, and the burden rests on those objecting to produce sufficient evidence to defeat the prima facie case. City of Crossett v. Anthony, 250 Ark. 660, 466 S.W.2d 481 (1971). If only one of the five tracts is found to be improperly included in the annexation, the entire annexation must fail. Herrod v. City of North Little Rock, 260 Ark. 890, 545 S.W.2d 620 (1977).

Here, a majority voted in favor of annexation, thus the remonstrants had the burden of producing evidence sufficient to defeat the prima facie case. They met that burden.

First, the proof was clear that most of the land was neither platted nor held for sale as municipal lots. Second, the proof was overwhelming that the bulk of the land is held for investment purposes, agricultural purposes, or to be sold as two-to-five acre “farmettes.” Therefore, it was not held to be sold as suburban property. Third, there are only 700 homes and 2,500 people in the entire 7,000 acres. Obviously, the tracts represent neither a densely settled area nor the actual growth of the city beyond its boundary. In fact, the appellees’ testimony was entirely in terms of the future growth of the city beyond its boundary. Fourth and fifth, a number of witnesses testified by stipulation that “[t]he lands are not needed for municipal purposes and are not adaptable for municipal purposes.” These actual stipulations are not contradicted by opposing testimony. In view of the evidence, the proof is clear that the lands did not meet any one of the criteria set forth in the first paragraph of the annexation statute. Therefore, the lands are not eligible for annexation.

November 12, 1985

Because of the decision we reach, it is not necessary that we discuss the other points of appeal.

Reversed and dismissed.

Purtle, J., not participating.

Supplemental Opinion on Denial of Rehearing

Robert H. Dudley, Justice.

On petition for rehearing the petitioners, City of Springdale, et al., resolutely contend that this Court erred in basing its opinion upon the city’s failure to meet one of the five annexation requirements of Ark. Stat. Ann. § 19-307.1 (Repl. 1980) because, petitioners contend, the issue was not raised in the trial court.

Clearly, an issue not raised at the trial court level may not be raised for the first time on appeal. Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983). In the oral argument before this Court, the petitioners claimed that the annexation requirements of the statute were not raised at the trial level. At that time we questioned the claim. We then discussed the matter in our decisional conference and again at our opinion conference. We concluded that while the statute was not expressly mentioned in the complaint, the matter was plainly and. fairly raised at the trial level.

The reasons for our decision were as follows: First, the evidence, as set out in the opinion, showed that there was a failure to meet any one of the five statutory requirements. Second, the trial attorneys, who are also the attorneys on appeal, plainly argued the matter to the trial court. We quote a part of petitioners’ argument to the trial court which includes quotations

from 19-307.1:

Mr. Herdlinger: [Petitioners’ attorney]
Now, let’s go back to the first argument that, — that Mr. Evans gave. He says there’s no purposes, but he just read you parts of sentences. When we go to the purposes clause, number three says: “When the lands furnish the abode of a densely settled community.” And, he stopped right there, but, the sentence goes on: “Or, represent the actual growth of the municipality beyond it’s boundary.” And, that’s exactly what it does. Look at the boundaries. These are just areas that represent the growth patterns outside of those boundaries. The city has grown to the stage that it’s time to expand, expand those areas, in. And, that’s what’s represented by the red marks (indicating) out there. It also says, number four, it says, either, or, it could be any of these things, that’s the argument for number three; but, the argument, also, is true for argument four: “When the lands are needed for any proper municipal purposes, such as the extension of police regulation.” There are other municipal purposes, obviously. The continuation of roads ....

Third, the trial court was cognizant of the issue. We quote a part of the argument which was made by respondents’ attorney and the court’s response:

Mr. Evans: [Respondents’ attorney]
Your Honor, I think I’d like to go back to those two sections, 19-307.1 and 19-307.2. 19-307.1 and 19-307.2 both were passed in 1975. To use 19-307.2 the city would have to have the requirements under 19-307.1 Those are the five things they must have. It says: “Any municipality may, by two-thirds of the total members making up its governing body, adopt an ordinance to annex lands contiguous to said municipality, provided the lands are . . .”; and, then, it lists the five things: Platted and held for sale for use as municipal plots. Whether it was platted or not, if held to be sold as suburban property. When the lands furnish an abode for a densely settled community, or represent the growth of the municipality beyond its legal boundaries. When it’s necessary for police regulation; and five, when they are valuable by reason of their adaptability for prospective municipal uses. There is all the stipulated testimony in the record, couched with those five, none of which are met. There is testimony from the mayor which shows none of these five have been met. There was testimony from Mr. Berry which showed none of these five had been met. There was testimony from Mr. Reed that also showed that about five of them, — of the five, — have not been met. Reading what he said and applying it. Now, if that is so, if the city didn’t have the platted lands held or sold as municipal plots, the densely populated area, the need for the police protection; if they didn’t have all of those things, they could not go under 19-307.2. They are companion statutes, which means you have got to go back to the area, and let their vote count. 19-307.1 and 19-307.2 are steps. They are stairsteps in the process that has to be gone through. If these five things exist, you can use —
The Court:
— Either. It says, either.
Mr. Evans:
Yes, sir.
The Court:
Either one of them will work.
Mr. Evans:
Yes, sir, I am saying none of the five were even met. Police regulation? They don’t need it. Everything we went through with that —
The Court:
— Well, what about three and four?
Mr. Evans:
A densely settled community? There’s seven hundred people on seven thousand acres. Seven hundred homes in seven thousand acres. That’s not densely settled or populated ....

Fourth, the petitioners did not claim surprise and responded to all arguments concerning the statute.

After considering the matter, we concluded that the petitioners’ failure to meet any one of the five statutory annexation requirements was plainly and fairly raised in the trial court, and that we should decide the case on the basis stated in the opinion.

Rehearing denied.

Purtle, J., not participating.


text:
    SOUTHWESTERN HUMAN SERVICES INSTITUTE, INC. v. Shirley A. MITCHELL
    85-72
    696 S.W.2d 722
    Supreme Court of Arkansas
    Opinion delivered September 30, 1985

      Henry & Duckett, by: Richard L. Lawrence, for appellant.
    No response by appellee.
   Robert H. Dudley, Justice.

Appellant, Southwestern Human Services Institute, Inc., provided psychotherapy and related services to appellee, Shirley Mitchell, from December 17, 1981 to September 7,1982. Appellee did not pay for the services. On July 9,1984, more than twenty-two months after the services had been provided, appellant filed suit to collect the debt. One of the statutes of limitations then in effect, Ark. Stat. Ann. § 37-245 (Supp. 1985), provided that a “physician or other medical service provider” must file a suit to collect a debt for “medical services” within eighteen months from the date the services were provided. Appellee filed a motion for summary judgment alleging that the debt was barred by the above cited statute of limitations.

Appellant filed an affidavit in opposition to the motion for summary judgment. The affidavit was executed by Douglas Stevens, appellant’s president, and it provided in part:

2. That no medical services were provided Ms. Mitchell by Southwestern Human Services Institute, Inc., that I am not a physician, that neither I nor anyone associated with Southwestern Human Services Institute, Inc., provide medical services to anyone, that Southwestern Human Services Institute, Inc., is not a medical provider or provider of medical services and that I am licensed and permitted only to engage in the field of psychology testing, therapy and evaluation.
6. That the direct services rendered Ms. Mitchell consisted of psychotherapy, evaluations, and rehabilitation sessions and that the court related services were for preparation and testimony in two separate Worker’s Compensation court hearings.

The moving party, appellee, did not respond to the affidavit. The trial court held that there was no genuine issue of material fact for trial and that the evidence submitted showed that appellant’s claim was barred by the statute of limitations. We reverse and remand.

Appellant’s employee, Douglas Stevens, does not hold a medical degree. He is a psychologist. Psychologists are expressly prohibited from “in any way infringing upon the practice of medicine as defined in the laws of this State.” Ark. Stat. Ann. § 72-1502(c) (Supp. 1985). Appellant’s employee clearly is not a physician and is prohibited from practicing medicine. The only way appellant possibly could be included within the statute is if appellant could be considered as an “other medical service provider.” Psychologists do not normally provide medical services and are not governed by the medical board. Instead, they have their own board. Ark. Stat. Ann. § 72-1519 (Supp. 1985). Stevens’ affidavit recites facts which show he did not provide medical care in this case.

The appellee argued below that a different statute defined “medical care provider” to include psychologists. That statute, § 34-2613(B) (Supp. 1985), involves an entirely different act, the doctors’ protective act for malpractice cases. In addition, that act expressly provides that the term applies “ [a]s used in this chapter.” § 34-2613. It was not intended to be applied to the statute which is at issue in the case at bar.

The practice of psychology, as set out by the affidavit in this case, does not constitute the providing of medical service. Therefore, the eighteen month statute of limitations for providers of medical service is not applicable, and the case should not have been dismissed.

We reverse and remand for further proceedings.

Purtle and Hays, JJ., not participating.