text:
    Jim HOOPER v. Carl ZAJAC, d/b/a BLUE HILL GARAGE et al
    81-182
    627 S.W. 2d 2
    Supreme Court of Arkansas
    Opinion delivered January 25, 1982

      Guy Jones, Jr., for appellant.

      E. H. Herrod, for appellees.
   George Rose Smith, Justice.

Hooper, a resident of Faulkner county, filed this suit in the Faulkner circuit court, asserting one cause of action against Zajac and a different cause of action against Edwards and Chapman. All three defendants moved to quash the summons on the ground that they reside in Pulaski county and must be sued there. Hooper filed a reply alleging that his cause of action is asserted not in contract but in tort and particularly under Ark. Stat. Ann. § 27-611 (Repl. 1979), which is a venue statute. The trial judge, without hearing testimony, sustained the motion and dismissed the action, finding that the defendants reside in Pulaski county, where the alleged acts occurred. The Court of Appeals certified the case to us under Rule 29 (1) (o)and (4). We affirm as to Zajac, but reverse as to Edwards and Chapman.

The complaint alleges that at Hooper’s request Zajac, who operated a wrecking service, hooked his wrecker to Hooper’s car to transport it to Conway, but instead Zajac took the car to his place of business, where it remained for ten days. When Hooper "recovered his vehicle, the two front wheels had been removed, battery, and there had been other damage to said automobile while in possession of... Zajac. Plaintiff claims damages to his vehicle in the aggregate amount of $200.00 for property damage.” There are other vague assertions of loss, but the only prayer for relief against Zajac is for the $200 already specified. The question is whether such an action can be brought in the county where the owner of the damaged property resides.

Our 1939 Venue Act provided that actions for personal injury or death must be brought in the county “where the accident occurred” or in the county where the injured person resided. Ark. Stat. Ann. § 27-610. The act was defective in that a person injured in a highway accident might have to sue for his personal injuries in one county but for his property damage in another county, where the defendant resided. By Act 182 of 1947 the legislature remedied that defect by providing that an action for damages to personal property by wrongful or negligent act may be brought in the county where the accident occurred which caused the damage or in the county of the plaintiff’s residence. By Act 830 of 1977 the law was amended to provide also that an action for the conversion of personal property may be brought in the county of the residence of the person who owned the property when the cause of action arose. § 27-611.

Hooper’s complaint against Zajac does allege that Zajac removed two wheels and the battery from the vehicle, but the complaint is not for the conversion of those parts, which are not separately valued. Instead, the cause of action is for damages to the vehicle in the aggregate amount of $200 for property damage. Thus no cause of action for conversion is stated against Zajac. What the complaint does state is a cause of action for Zajac’s breach of contract, which may have been negligent or tortious conduct. Even so, we have consistently held that the amendment to the Venue Act, permitting an action for damages to personal property by wrongful or negligent act, refers only to damage caused by an accident involving force or violence. Sarratt v. Crouch Equipment Co., 245 Ark. 775, 434 S.W.2d 286 (1968); Evans Laboratories v. Roberts, 243 Ark. 987, 423 S.W.2d 271 (1968); International Harvester Co. v. Brown, 241 Ark. 452, 408 S.W. 2d 504 (1966). There being no assertion of an accident in this case, the trial court correctly sustained Zajac’s motion to quash service.

As to Edwards and Chapman, the complaint alleges that they have in their possession household goods, furniture and other property belonging to Hooper, that they have failed and refused to allow Hooper to pick up his property, and that they have retained it and refused to deliver it, without just cause. Those allegations describe a conversion as we have frequently defined that term. Quality Motors v. Hays, 216 Ark. 264, 225 S.W.2d 326 (1949); Meyers v. Meyers, 214 Ark. 273, 216 S.W.2d 54 (1948); Hooten v. State for Use of Cross County, 119 Ark. 334, 178 S.W. 310, LRA 1916C, 544 (1915). The venue as to Edwards and Chapman is therefore in Faulkner county under § 27-611.

Affirmed as to Zajac, reversed as to Chapman and Edwards.


source: Caselaw Access Project

author: Frank Holt, Justice. Richard B. Adkisson, Chief Justice,

license: Public Domain

text:
    Sterling WILLIAMS v. STATE of Arkansas
    CR 81-86
    627 S.W. 2d 4
    Supreme Court of Arkansas
    Opinion delivered January 25, 1982

      John L. Kearney, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty on two counts of aggravated robbery and theft and assessed penalties totaling 40 years imprisonment. Appellant’s only contention for reversal is that the court erred in refusing to dismiss the charges against him since he was not brought to trial within three full terms of court in violation of his right to a speedy trial. Ark. Stat. Ann., Vol. 4A, Rules of Criminal Procedure, Rule 28.1 (b) (Repl. 1977) (Amended effective July 1, 1980 [Supp. 1981]).

There are two terms of court per year in Jefferson County — one beginning the first Monday in March and the other the first Monday in October and the term when appellant was arrested and charged is not counted. Kemp v. State, 270 Ark. 835, 606 S.W.2d 573 (1980). The burden is upon the state to prove good cause for any delay in the trial or that it was legally justified. State v. Lewis, 268 Ark. 359, 596 S.W.2d 697 (1980). Here, the appellant was arrested and charged on May 17, 1979; on June 5, an attorney was appointed to represent him; on July 16, he was released upon his own recognizance; on August 27,1980, the court set his trial for November 28, 1980; on October 17, 1980, appellant’s counsel filed a motion to be permitted to withdraw, stating that appellant had failed to cooperate with him in his efforts to represent him; on December 1, 1980, the court granted the attorney’s motion to withdraw, apparently incarcerated the appellant, and gave him until January 5, 1981, to secure counsel. On that date appellant, not having secured counsel, was given until February 2, 1981, todo so. Not having an attorney by this date, the court appointed present counsel. The trial was rescheduled for and held on May 20,1981. A few days before trial, appellant’s present court appointed counsel sought dismissal of the charges asserting the trial date exceeded three full terms. He insisted that, although the appellant had been absent from the state, his absence violated no court order and that he had always been available for trial purposes. The appellant testified that he had returned to the state a short time before his scheduled trial date in November, 1980. The state responded that appellant had been absent from the state from October, 1979, until December, 1980; his whereabouts were unknown to the prosecuting attorney and to his own attorney; he had failed to respond to the requests of his then attorney; on December 1, 1980, this attorney was permitted to withdraw upon his own motion since he had been unable to contact the defendant; and the court jailed the appellant because he had fled the state. Appellee argues that a period of 15 or 16 months should be excludable from the three term trial requirement, or at least the period from October 17, 1980, to February 2, 1981.

It is undisputed that three terms of court, not counting the term in which appellant was arrested and charged, elapsed and therefore charges against appellant should be dismissed unless there is good cause shown for an excludable period of time. Appellant’s trial was conducted 79 days following the expiration of three full terms of court. We are of the view that the period of time from October 17, 1980, when his attorney asked for permission to withdraw because of appellant’s failure to cooperate in the preparation of his defense, until February 2, 1981, when present counsel was appointed, should be excluded from the three term requirement and chargeable to the appellant. It is true that counsel’s motion to withdraw was not granted until December 1, 1980; however, it is quite evident that the appellant’s scheduled trial on November 28 could not have been held in view of the conflict between appellant and his appointed counsel, resulting in the necessity of appointing new defense counsel. Divanovich v. State, 273 Ark. 117, 617 S.W.2d 345 (1981). Here, as there, the postponement of the scheduled trial was for good cause which brings it within Rule 28.3 (h).

Since the 108 days chargeable to the appellant greatly exceeds the 79 day delay, we cannot say the trial court erred in denying appellant’s motion to dismiss the charges against him for lack of a speedy trial.

Affirmed.

Adkisson, C.J., and Hickman and Purtle, JJ., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. The majority has decided that 108 days is an excludable period for good cause under the speedy trial provisions of the Rules of Criminal Procedure, Article VIII, Rule 28.

More specifically, they have held that the excludable period began when court-appointed counsel moved to withdraw as counsel 42 days before trial, alleging he was unable to prepare for trial because the accused had not contacted him, and ended 66 days after the trial date when a second attorney was appointed.

This decision marks the end of any pretense that this Court may have posed regarding enforcement of the speedy trial provisions of the Rules of Criminal Procedure.

At a time when most of the jurisdictions in this nation are requiring that trials be held in 90 days to six months from the time of arrest, this Court is unable to require a trial be held in 18 months, finding “good cause” for delay on the very flimsiest of reasons.

This Court should realize that laws requiring a speedy trial are practically and ultimately for the benefit of the public — the accused seldom really wants one.

Sanctions for failure to hold a speedy trial are deemed necessary for its enforcement; that is the concept behind Article VIII. If sanctions are not enforced, the rule will be meaningless.

I am hereby authorized to state that Hickman and Purtle, JJ., join in this dissent.


author: Frank Holt, Justice.

text:
    Maurice Theotis JONES v. STATE of Arkansas
    CR 81-103
    627 S.W. 2d 6
    Supreme Court of Arkansas
    Opinion delivered January 25, 1982

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Upon a jury trial, appellant, as a habitual offender, received a life sentence for aggravated robbery, 15 years for theft of property, and a life sentence for kidnapping. Appellant first argues that the court erred in granting the state’s motion to amend the aggravated robbery information during the trial and, therefore, he was entitled to a directed verdict in the absence of the amended information. We recite the pertinent facts.

The uncontroverted testimony of the victim was that she had visited her husband in a local hospital, and as she approached her car on the hospital parking lot in the late evening hours, appellant grabbed her, told her he had a gun, placed it against her head, and forced her into her car. She described the weapon as “an army gun. It had a long barrel ...” While he was driving, he threatened to “blow her head off” several times, demanded her money, and threw her purse in the back seat. The purse contained her husband’s wallet and a small sum of her money. At one point he placed his hand on her crotch or vaginal area, saying “If you don’t let me lick you, I will kill you.” He struck her several times. In defending herself, a button was torn from the shirt worn by the appellant. About thirty minutes after her abduction, she jumped from the car as it was moving slowly. She was picked up by a passing motorist, the police were alerted, and she was taken to a hospital. Shortly thereafter, the police apprehended appellant, who was driving the victim’s car. A BB pistol was found in the front seat. Three credit cards belonging to the victim’s husband were found in the appellant’s pocket. Other identification cards belonging to the victim’s husband were found in appellant’s right shoe. A torn shirt with a button missing was found in the back seat — the button being found in the front seat.

The information originally charged the appellant with aggravated robbery by violating Ark. Stat. Ann. § 41-2102 (Supp. 1981), alleging that the appellant unlawfully and feloniously employed physical force upon the victim “with the purpose of committing a theft, and did have in his possession a pistol, a deadly weapon . ” After the state rested its case, it was allowed to amend the information to include the additional words of the statute that the appellant “represents by word or conduct that he is so armed.”

The appellant argues that the state, by specifically alleging in the original information that a deadly weapon was used, is bound by that allegation and, therefore, he is entitled to a directed verdict since the weapon, a BB pistol, is not a deadly weapon. Neither could the asserted deficiency be corrected by permitting the state to amend the information to conform to the proof that appellant represented he was armed with a deadly weapon. In Workman v. State, 267 Ark. 103, 589 S.W.2d 21 (1979), we said:

It is well settled that the information may be amended during the trial as long as the nature or degree of the crime charged is not changed.

This is authorized by Ark. Stat. Ann. § 43-1024 (Repl. 1977). The state is entitled, under this statute, to amend an information to conform to the proof when the amendment does not change the nature or degree of the alleged offense. Prokos v. State, 266 Ark. 50, 282 S.W.2d 36 (1939); Dolphus v. State, 256 Ark. 248, 506 S.W.2d 538 (1974); and Whitley v. State, 140 Ark. 425, 215 S.W. 703 (1919).

Here, the appellant argues, however, that the nature of the crime alleged was changed by the amendment. We have said that an amendment which describes a deadly weapon as being a pistol instead of a knife does not change the nature of a crime nor its degree. Ridgeway v. State, 251 Ark. 157, 472 S.W.2d 108 (1971). Further, the original information here sufficiently complied with Ark. Stat. Ann. § 43-1006 (Repl.1977), which requires that the language of an indictment or information must be certain as to the title of the prosecution, the name of the court in which the indictment or information is presented, and the names of the parties, subject to a bill of particulars. See Browning v. State, 274 Ark. 13, 621 S.W.2d 688 (1981). Here, the appellant did notask for a bill of particulars, plead surprise nor seek a continuance when the court allowed the amendment of the information. The appellant has demonstrated no prejudice. We hold that the trial court did not err in refusing to grant appellant’s motion for a directed verdict on the original allegation of aggravated robbery and then permitting the state to amend the information to conform to the proof.

The appellant next contends the court erred in permitting the state to amend the information with respect to the kidnapping charge. The information, in the words of the statute, charged the appellant with violating Ark. Stat. Ann. § 41-1702 (1) (d) (Repl. 1977) by unlawfully restraining the victim “so as to interfere substantially with her liberty for the purpose of engaging in sexual intercourse or deviate sexual activity . . . . ” The information was amended at the close of the state’s case, over appellant’s objection, to include in the words of the statute, the additional allegation that the appellant proposed to engage in “sexual contact” with the victim. Appellant reiterates his previous argument that this amendment changed the nature of the alleged crime and is, therefore, prohibited by § 43-1024. That statute, however, as indicated, permits the amendment of an information when the nature or degree of an alleged crime is not changed by the amendment. Here, the amendment changed only the manner in which the alleged offense was committed and did not change the nature of the offense charged and was, therefore, proper. Prokos v. State, supra; Workman v. State, supra; Ridgeway v. State, supra; and § 43-1006. Here, appellant did not seek a bill of particulars, plead surprise nor seek a continuance. Appellant has failed to demonstrate that he has suffered any prejudice by the court allowing the amendment.

Pursuant to the requirements of Ark. Stat. Ann. § 43-2725 (Repl. 1977), Rule 36.24 of the Rules of Criminal Procedure, and Rule 11 (f) of the Rules of the Supreme Court, we have reviewed the record and all objections and find no errors prejudicial to the appellant.

Affirmed.


author: Darrell Hickman, Justice.

text:
    STATE of Arkansas v. James T. BRANAM
    CR 81-93
    627 S.W. 2d 8
    Supreme Court of Arkansas
    Opinion delivered January 25, 1982

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellant.

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellee.
   Darrell Hickman, Justice.

This is an appeal by the State questioning the trial court’s suppression of a statement made by James T. Branam. While the facts are somewhat complex, the question is not. It is simply a matter of whether Branam had waived his right to have counsel when he talked to the police. The trial court ruled that the State had not met its burden of proof in this regard and we cannot say the court was clearly wrong. The decision is affirmed.

Branam was charged with the capital murder of Phillip Hammett on December 30, 1980. He was arraigned in municipal court the next day and Sandra Berry, an attorney for the Public Defender’s office, was appointed to represent him. She told him to make no statements. Hours later Branam was charged with several counts of aggravated robbery and capital murder in connection with the death of Johnny Otwell at the Motel 6 in Little Rock. Shortly after this last charge was made, Detective Jones with the Little Rock Police Department spoke to Branam about the Otwell case. Branam declined to make a statement and the detective made a note which read:

James Branam, declined to make any statement on advice of his attorney, Public Defender. He was charged with one count of capital felony murder, two counts of aggravated robbery and one count of rape.

On January 2,1981, Larry Dill, a deputy sheriff with the Pulaski County Sheriff’s office, questioned Branam about a third possible charge of aggravated robbery at the Protho Junction Day’s Inn Motel. Dill testified that during that questioning Branam wanted to talk about the Otwell case and that he called Detective Jones to tell him Branam was talking about the Otwell case. It is undisputed that Branam did not initiate the conversation with Dill and did not ask to talk with Jones about the Otwell case. Jones and Dill talked to Branam together and Branam made a statement in connection with the Otwell case. That statement is the subject of this appeal. Detective Jones conceded that he knew Branam had a lawyer and had declined earlier to talk to him. For that reason Jones added to Branam’s statement: “I am making this statement against the advice of the public defender.”

The trial court ruled that the case of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981) controlled arid the statement had to be suppressed. In Edwards the Court recognized that an accused can waive his right to counsel, even after he has counsel, but held:

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.

That is precisely the case before us. Branam had counsel, Detective Jones knew it, and, in fact, Branam had declined to make a statement in this case on that very ground. Deputy Sheriff Dill initiated the later contact with Branam, and brought Detective Jones into the case again. There is no evidence at all that Branam initiated this contact with Dill or Jones.

On appeal we examine such a ruling to see if the State proved by a preponderance of the evidence that a statement was voluntarily given. In this case the specific question is whether Branam made a valid waiver. We make an independent determination of this issue considering the totality of the circumstances, and affirm the trial court unless we can say he was clearly wrong. Coble v. State, 274 Ark. 134, 624 S.W. 2d 421 (1981). The State argues that numerous fine distinctions exist between this case and Edwards, but none would be a basis for holding the trial judge clearly wrong.

Affirmed.


author: John I. Purtle, Justice.

text:
    Robert Montague ADAMS, Jr., and John W. ADAMS, Jr., Successor Trustees of R. M. Adams Trust v. Louise Ann McNamara BRUDER et al
    81-176
    627 S.W. 2d 12
    Supreme Court of Arkansas
    Opinion delivered January 25, 1982

      /. Sky Tapp, for appellants.

      Martin, Vaterér Karr, by: Robert W. Vater, for appellees.
   John I. Purtle, Justice.

Appellees brought suit in the Chancery Court of Franklin County, Arkansas, to set aside appellants’ mineral tax deed and certain leases for oil and gas which had been executed by appellants. The issues were joined and the trial court granted appellees’ motion for a summary judgment. On appeal the appellants argue the court erred because there were genuine issues of material facts to be decided by the court. We hold the chancellor was correct in granting the summary judgment.

In 1905 appellees’ predecessor in title sold the land in question but reserved all the mineral rights. The taxes on the separate mineral rights were delinquent for the 1944 assessment. Appellants’ predecessor in title acquired the mineral rights by paying the delinquent taxes. A deed was executed to appellants in 1948. The deed was duly recorded and appellants or their predecessors have paid the taxes up until the commencement of this suit in November of 1979.

The 1944 Franklin County listing of tax assessments for mineral rights were kept in the property tax book. The mineral rights in question were described at Pt. SE SE S8, T9, R26. The tax, penalty and costs amounted to $3.85 but the transfer was recited in the tax sale deed as being in the amount of $4.20. The mineral assessments were not subjoined to the land taxes. Instead, the mineral rights were listed at random in another section of the tax record book. They were listed neither in alphabetical order nor by section, township and range. There were several other discrepancies in the listings, notices and collection of the taxes relating to these mineral rights.

Appellees never paid any taxes on the mineral rights in question. They simply did nothing until 1977 when they executed a gas and oil lease to Texas Oil and Gas Corporation. However, appellants as trustees had executed an oil and gas lease in 1949 which was assigned to Arkansas Western Gas Company. The lease was renewed and the property was pooled and unitized. Drilling for natural gas was commenced and completed in 1965. This well was not physically located upon the property described in the lease in question but was in section 5 which was a part of the unit into which this property had been pooled. A second producing well was completed within the unit but not upon the land in dispute.

Through the process of interrogatories the facts were developed in this case. There is no question but that the mineral rights were improperly listed and that the original tax sale was void. It would serve no useful purpose for us to list all of the imperfections in the process of handling the taxes on the mineral rights for the year 1944. So far as the facts are concerned they are undisputed in relation to the void tax deed. The appellants’ argument is that the appellees should not be allowed to sit by and do nothing for 35 years and then come in and take over the property after oil and gas has been discovered. Although appellants allege there were genuine issues of material fact to be determined by the court, their argument is based upon the court’s interpretation of the law. The appellants feel that the appellees slept on their rights and they should have been allowed to argue the defenses of limitations and laches in order to defeat the appellees’ rights to the property in question. We think the court was able to take these arguments under consideration with the facts presented to it at the time of the summary judgment.

The issue presented here has been previously considered by this court, and we think the case of Sorkin v. Myers, 216 Ark. 908, 227 S.W. 2d 958 (1950), is controlling. The facts are almost identical in Sorkin and the present case. In Sorkin the land commissioner had issued a tax deed for mineral rights. The mineral lease was not subjoined to the surface property. The assessor kept an alphabetical list of the owners of several interests in a separate book called “Leases and Royalties.” In Sorkin we held that the mineral rights as they relate to forfeitures shall in all things be handled in the same manner as provided for real property. See also Stienbarger v. Keever, 219 Ark. 411, 242 S.W. 2d 713 (1951); Smiley v. Thomas, 220 Ark. 116, 246 S.W. 2d 419 (1952). We have held in cases too numerous to need citation that a defective tax forfeiture deed is void. Sorkin firmly held that mineral interests were severable only because the legislature had made it so. Also, it held that the mineral rights were so closely related to the realty that ownership identification and accuracy made it imperative that the mineral rights be subjoined to the land assessment. The Sorkin decision wound up with the following language:

. . . our decision rests upon the proposition that the procedure legislatively intended was not followed. Instead, there was a course of well-intentioned administrative conduct that deprived the property owners of the process provided for assessing and selling. This means that the power to sell was lacking.

We do not mean to imply that mineral interests could never be ripened into a good title if the original deed was defective. We held in the case of Claybrooke v. Barnes, 180 Ark. 678, 22 S.W. 2d 390 (1929), that the only way the statute of limitations would run against the owner of the mineral rights is for the owner of the surface rights or some other person to take actual possession of the minerals by opening mines and operating same. In the case of Laney v. Monsanto Chemical Co., 233 Ark. 645, 348 S.W. 2d 826 (1961), we held that the drilling on one tract of land within a lease did not amount to constructive possession of mineral rights in other tracts within the lease. In Laney it was contended that continuing production of oil from a 40-acre tract had the effect of vesting constructive possession of the mineral rights throughout the 240 acres covered by the lease. The opinion is summed up with a sentence which states:

We are unable to agree with the basic premise in appellants’ argument, that a lessee’s production of oil from one tract within a lease amounts to constructive possession of all the oil throughout the leasehold. ...

In the early case of Woolfolk v. Buckner, 67 Ark. 411, 55 S.W. 168 (1900), we dealt with a claim concerning a tax title and adverse possession, stating:

. . . There is only one way in which the owner can be dispossessed or disseised by an illegal tax sale, and that is by actual adverse possession. ... If the original owner of the legal title was in constructive possession because he had the legal title, how could the claimant under the void tax title have the constructive possession at the same time? To so hold would be to give to possession under a void tax title more legal effect than to possession under a valid legal title . . .

In the case of Eades v. Joslin, 219 Ark. 688, 244 S.W. 2d 623 (1951), we dealt with the matter of adverse possession. The defense interposed was the equitable defense of laches. There we stated:

. . . plaintiff’s title was of record; the Eades were depending on adverse possession; until their possession had ripened into title they had no title to lease or sell. We find no facts sufficient to make laches applicable as a defense in this case.

Had the appellants been given an opportunity to present additional evidence in support of their contentions the result would have been the same. Based upon precedent the tax sale was obviously void. Also, based upon precedent, the appellants had not taken actual possession of the mineral rights by exercising physical control in some manner which would bring notice to the appellees and the public in general.

Affirmed.


text:
    Joe RIGHTMIRE v. STATE of Arkansas
    CR 81-102
    627 S.W. 2d 10
    Supreme Court of Arkansas
    Opinion delivered January 25, 1982
    [Rehearing denied March 8, 1982.]

      Shaw ér Shaw, by: Orvin Foster, for appellant.

      Steve Clark, Atty..Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The trial court denied appellant’s Rule 37 Petition wherein he sought to prove ineffective assistance of counsel. The court held (1) that the defendant was represented by an attorney at all important and vital stages of the proceedings; (2) that the attorney was competent and adequately represented the defendant; and, (3) that the defendant knowingly and voluntarily entered a plea of guilty.

On appeal appellant argues: (1) the trial court erred in finding appellant’s counsel was not ineffective; and, (2) the trial court erred in finding appellant’s entry of a guilty plea was voluntary. We disagree with appellant on both arguments for the reasons discussed below.

The appellant entered his guilty plea on June 28, 1979. His Rule 37 Petition was filed on August 15, 1980. In the interim, one of appellant’s codefendants received a jury trial and was found guilty of manslaughter. Appellant alleges he should be treated in the same manner. At the Rule 37 hearing appellant testified that he was incarcerated at Cummins on July 2, 1979, and remained there through the date of the hearing, February 28, 1981. His testimony was that he had approximately six meetings with his former attorney prior to the time the trial was scheduled. He alleged that on the second day of the trial his attorney took him into a sideroom and stated:

What kind of damn fool are you trying to make of me in that courtroom? I have sat up until 2:00 a.m. this morning and I don’t have the first word for your defense prepared. If you don’t plead guilty and take this reduced sentence, you will get a life sentence.

He alleges that at that time he agreed to accept the proposal to plead guilty with the understanding that he would have to serve only a couple of years in the Department of Correction.

After being incarcerated he determined that his eligibility for parole would be December 6, 1983. According to his calculations, he would have to spend four years and eight months in the Department of Correction. He had been sentenced to 25 years with seven years suspended, leaving 18 years to be served. It is the contention of the appellant that if he had known he would not become eligible for parole for four years and eight months, he would not have accepted the plea agreement. He states that neither his attorney nor anyone else advised him about the length of time he would have to serve before becoming eligible for parole. He also made the argument that his attorney told him he would only have to serve a couple of years on the 18-year term. He acknowledged having been in the Department of Correction before but denied knowing anything about how the parole system worked. He stated that he served about 20% of the time on his prior sentence.

The attorney who represented the appellant at the original trial testified that he was present at the time the plea was entered and that it was free and voluntary. The attorney denied he had ever told the appellant the length of time he would have to serve. He stated that not even the trial judge could determine that time. The attorney testified that the appellant had admitted to him the facts and circumstances surrounding the offense with which he was charged and, further, that he knew of no defense to the charge. It was the attorney’s understanding that the appellant would come up with some type of defense but he never did. The attorney stated he had a conversation with the appellant in which he told him he would not be eligible for parole as a first offender due to his prior record. In other words, he informed the appellant he would have more time to serve than he had before.

The record reveals the appellant went before the judge and admitted his guilt and stated he understood the full consequences of his entry of a guilty plea. He stated he was satisfied with his attorney and that the attorney had worked competently and diligently in representing him in the matter. He further acknowledged that he knew the court was not bound by any recommendation made by the prosecuting attorney and that the court was completely free to fix or assess punishment at the court’s discretion subject only to the limits set by law. During the sentencing process, appellant did not make inquiry as to the length of time he would actually have to serve.

It appears the appellant was satisfied with his sentence until he determined he was going to have to serve a longer period than he anticipated when he entered the guilty plea. There is no requirement that his attorney or the court or anyone else tell him how long he will have to serve on any given sentence. In fact, it would be sheer speculation for an attorney or the court to tell an accused that upon being sentenced to a time certain he would only have to serve a certain percentage of that time. This is a matter that is solely within the control of the Department of Correction and the courts have nothing to do with the parole system in the ordinary course of events. In fact, appellant did not file his petition until after he learned that a codefendant had been convicted of manslaughter by a jury. The original charge against the appellant had been first degree murder but his plea of guilty was to second degree murder.

In determining whether a petitioner had effective assistance of counsel it is his duty to demonstrate prejudice and an unfair trial. Blackmon v. State, 274 Ark. 202, 623 S. W. 2d 184 (1981). There is a presumption that counsel is competent. Hoover v. State, 270 Ark. 978, 606 S.W. 2d 749 (1980). It was the duty of the appellant to prove the allegation of ineffective assistance of counsel. That is a rather heavy burden in view of the presumption of effective assistance of counsel. Williams v. State, 273 Ark. 371, 621 S.W. 2d 686 (1981); Hoover v. State, supra; Cason v. State, 271 Ark. 803, 610 S.W. 2d 891 (1981); and Blackmon v. State, supra.

In viewing all of the testimony and evidence presented in this case we are of the opinion that the appellant has not met the burden required of him to prove ineffective assistance of counsel. We cannot say that any action on the part of his trial counsel was prejudicial or that he failed to receive fair treatment by the court.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Roy KEITH, Collector of Pulaski County, Arkansas, et al v. BARROW-HICKS EXTENSIONS OF WATER IMPROVEMENT DISTRICT NO. 85 of Pulaski County, Arkansas, et al
    81-178
    626 S.W. 2d 951
    Supreme Court of Arkansas
    Opinion delivered January 25, 1982

      Wilbur C. Bentley, Pros. Atty., by: Hugh L. Brown and Steven L. Curry, Deputy Pros. Attys., for appellants.

      Townsend ir Townsend, Ltd., by: Willis Townsend, for appellees.
   Robert H. Dudley, Justice.

Appellees, sixteen improvement districts comprised of drainage districts, municipal improvement districts and suburban improvement districts, sought a declaratory judgment, a mandatory injunction and damages against appellants, the collector and treasurer of Pulaski County, for withholding ten percent of the combined assessment and penalty or fee on delinquent property located within the various districts. One of the prayers for relief asked for a judgment of $6,649.81, the amount allegedly wrongfully withheld from May 1, 1975 until the date of filing the complaint, April 26, 1978, along with any additional amounts withheld during the pendency of the suit. An accounting was not requested.

At trial the only fact put in evidence was that the appellant collector had withheld ten percent of the combined delinquent assessments, penalties or fees. That fact was material to the declaratory judgment and injunction.

The appellee districts attempted to prove the amounts withheld in order to prove their damages. The appellants objected to a recapitulation or summary of damages which had been prepared by appellees’ attorney. The court did not rule on the objection. The summary was neither proffered nor ordered in evidence and therefore we have no way to examine it on this de novo appeal. The chancellor later ruled that an injunction should issue against the collector mandating that he collect the assessments, penalties or fees from the delinquent taxpayer and not from the districts and appellee districts were given a judgment for court costs. However, the last paragraph of the order provides that the “court retains jurisdiction for such further orders as may be required pertaining to an accounting ...” for damages.

Is this a final and appealable order? In Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1967), we stated that for an order to be appealable

... it must in form or effect: terminate the action; operate to divest some right so as to put it beyond the power of the court to place the parties in their former condition after the expiration of the term; dismiss the parties from the court; discharge them from the action; or conclude their rights to the matter in controversy.

and that

An appeal will not lie from an interlocutory order relating only to some question of law or matter of practice in the course of the proceeding, leaving something remaining to be done by the court entering the order or by some court having jurisdiction to entertain the same and proceed further therewith.

Commencing with Arkansas State Highway Com’n. v. Kesner, 239 Ark. 270, 388 S.W. 2d 905 (1965), we have consistently held that an order which establishes a plaintiff’s right to recover, but leaves for future determination the exact amount of damages, is not final. Equity has jurisdiction to order an accounting and restitution for an illegal exaction, Munson v. Abbott et al, 269 Ark. 441, 602 S.W. 2d 649 (1980), and a court of equity can fashion the relief justified by the proof. Whitten Developments, Inc. v. Agee, 256 Ark. 968, 511 S.W. 2d 466 (1974). Thus, unless we hold that the chancellor abused his discretion in retaining jurisdiction for a possible subsequent accounting, the order of the trial court is not yet appealable. On de novo review we conclude that die chancellor erred in “retaining jurisdiction for such further orders as may be required pertaining to an accounting ...” Appellee districts filed this case in 1978 and pleaded entitlement to damages dating back to 1975. Appellant officials asked that the case be tried and also moved that it be dismissed for failure to timely prosecute the action. It was not tried until 1981. The appellee districts neither asked for an accounting nor did they prove any need for one as the collector’s records are a matter of public record. Unfortunately, appellees failed to prove their damages or make a record. However, in equity, in the absence of surprise, the cause of action and the relief granted are determined by the allegations of fact in the pleadings. Henslee v. Kennedy, 262 Ark. 198, 555 S.W. 2d 937 (1977). While the chancellor could have allowed a recess to obtain the proof, or could have allowed a non-suit, he erred in retaining jurisdiction for a later action “pertaining toan accounting.” Fairness dictates that the case be ended and the appellants be allowed to appeal rather than face an additional delay and suffer the additional expense of some unspecified type of hearing at some unknown date when the future hearing was neither pleaded nor required by proof and the proposed future hearing was solely occasioned by the appellees’ failure to prove their damages. The decision was final and the appellants have a right to appeal.

The principal issue in this case is whether Ark. Stat. Ann. § 20-1132 (Supp. 1981) authorizes appellant collector to collect ten percent of the combined tax and penalty from the redeeming taxpayer or from the taxing authority districts. As can be seen, the statute is ambiguous:

One receipt issued for lands redeemed in counties of more than 150,000 population — County collector’s fee. — Any person, firm or corporation having an interest in any property which has been certified by the County Collector’s office prior to the enactment of this law, for delinquent assessment(s) in any improvement district and which property has not been sold for such delinquent assessment(s) prior to the enactment of this law, may pay the assessment(s) or redeem said property within the time and in the manner now provided by law, except that one (1) receipt or certificate of redemption shall be issued to such person, firm or corporation embracing all of the property in the improvement district on which assessments are then paid or redemption then made by said person, firm or corporation, regardless of the number of calls describing the property or the number of years of delinquency, and for which receipt or certificate of redemption the said Collector shall be entitled to a fee equal to ten (10) per cent of the combined tax and penalty collected. And on all delinquent improvement district property certified by the County Collector’s office subsequent to the enactment of this law, the Collector’s cost for redemption shall be a fee equal to ten (10) per cent of the combined tax and penalty collected on each call, or twenty-five [cents] (25<£) per call, whichever is greater.

The appellants contend that the statute is vague and that a tax cannot be imposed except by clear and express words. See, Heath v. El Dorado Golf and Country Club, 258 Ark. 664, 528 S.W. 2d 394 (1975), citing Wiseman v. Arkansas Utilities Co., 191 Ark. 854, 88 S.W. 2d 81 (1935). That argument does not decide the issue because the statute is not the exaction of a tax but instead deals with a redemption fee. It is a method of statutory reimbursement to the collector for the additional expense which the landowner caused by failing to pay his assessment on time. A common sense interpretation of the statute dictates that the collection of the delinquency fee be had from the delinquent landowner and not from the district. It is clearly inequitable to require the other property owners in the districts who have paid their assessments on time to bear the costs of collecting from the delinquent owner, which is the result if the districts pay ten percent of the combined assessment and penalty or fee to the collector.

The chancellor correctly applied a sensible approach to statutory construction. “We have long held that statutory construction requires a common sense approach.” Henderson v. Russell, 267 Ark. 140, 589 S.W. 2d 565 (1979). We affirm the injunction prohibiting the collector from withholding ten percent of the combined assessment, penalty and fee from the various districts.

Appellants argue that because the case was three years old it should have been dismissed under Rule 10 of the Uniform Rules for Circuit and Chancery Courts, Ark. Stat. Ann. Vol. 3A (Repl. 1979). It is within the discretion of the trial judge to dismiss cases for lack of prosecution. We find no abuse of discretion in the failure to dismiss this case. Even had the chancellor dismissed the case it would have been without prejudice.

Affirmed as modified.


author: Steele Hays, Justice.

text:
    Dennis P. GLICK v. STATE of Arkansas
    CR 81-79
    627 S.W. 2d 14
    Supreme Court of Arkansas
    Opinion delivered January 25, 1982

      Holmes, Holmes & Trafford, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

During the night of July 11,1980, the home of Alvin Gibson at Reydell was burglarized and food, clothing and a shotgun were stolen. The following night two men entered the home of Willie Moore where Moore and several companions were gambling and using the shotgun taken from Gibson robbed them of about two hundred dollars. The two dwellings are about three miles apart.

Appellant was convicted of burglary, aggravated robbery, and two counts of theft of property. Found to have committed at least four prior felonies, appellant was given cumulative sentences of 120 years to run consecutively. He seeks a reversal on one assignment of error — the trial court erred in not directing a verdict because of prejudicial statements by some of the state’s witnesses. We find no error.

The argument is that testimony by the state was prejudicial to appellant: A. L. Lockhart testified to his observations at the scene of the burglary; David Rosegrant of the Arkansas State Police testified that discarded prison clothing was found near the Gibson dwelling and that members of the Department of Correction were at the scene; one of the robbery victims, John Hardin, testified that he had been in the penitentiary, knew the appellant and recognized him as one of the robbers. Appellant contends that the jury could have inferred that he had been convicted of a felony without his having taken the stand and prejudice resulted.

In the first place, the motion and the argument are incompatible, as a motion for a directed verdict is a challenge to the sufficiency of the evidence and not to the nature or character of the evidence. Harris v. State, 262 Ark. 680, 561 S.W. 2d 69 (1978); Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822 (1972). Here, there was more than sufficient evidence to submit the issue of guilt or innocence to the jury. Appellant was connected to the robbery by direct evidence in that five of the victims identified him as the man who carried the shotgun during the robbery and he was linked to the burglary by strong circumstantial evidence: two men were shown to have entered the Gibson home on the night preceding the robbery and the shotgun used in the robbery was positively identified as the one stolen from Gibson. Furthermore, no objections were offered to any of the testimony appellant now complains of and he cannot raise issues on appeal where there was no proper objection below. Kitchen v. State, 271 Ark. 1, 607 S.W. 2d 345 (1980); and Wicks v. State, 270 Ark. 782, 606 S.W. 2d 366 (1980).

Conceding the testimony had some prejudicial aspects, it should be said that the state has a right to meet its burden of proof from the relevant facts of the case, even though some coincidental detriment to the defendant may result. If one of the victims of the robbery knew the accused in the penitentiary and recognized him because of that association, the state cannot be deprived of probative evidence connecting the defendant to the crime simply because there are dual aspects to such evidence. Appellant cites Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954), but that decision is not in point — it deals with the question of when evidence of a prior offense, not part of the offense being tried, can be introduced. We are not dealing with prior offenses but simply with admissible evidence from which a jury might infer the accused had been, or was, in the penitentiary. While the state cannot make direct proof of that fact (and, indeed, should refrain from even drawing needless attention to it), because of the heavy burden of proof placed on the state under the law, it cannot be denied the opportunity of meeting that burden simply because some of the evidence has a coincidental implication not favorable to the accused. See Young v. State, 269 Ark. 12, 598 S.W. 2d 74 (1980); and Tarkington v. State, 250 Ark. 972, 469 S.W. 2d 93 (1971).

We find no error and therefore we affirm the judgment.


author: Per Curiam.

text:
    Rodney Lee ROWE v. STATE of Arkansas
    CR 80-99
    627 S.W. 2d 16
    Supreme Court of Arkansas
    Opinion delivered January 25, 1982
   Per Curiam.

Petitioner Rodney Lee Rowe was convicted in the Circuit Court of Pulaski County of attempted capital murder, Ark. Stat. Ann. § 41-701, 1501 (Repl. 1977), and aggravated robbery, Ark. Stat. Ann. § 41-2102 (Repl. 1977). We affirmed. Rowe v. State, 271 Ark. 20, 607 S.W. 2d 657 (1980). Petitioner received a sentence of ten years imprisonment for aggravated robbery and thirty years imprisonment for attempted capital murder. The trial court ordered the sentences served consecutively. Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. He specifically asks that a hearing be held in circuit court to determine whether a line-up identification procedure in the case was conducted in violation of petitioner’s rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article II § 10 of the Arkansas Constitution. He also asks that this Court modify his sentence or direct the circuit court to correct the sentence on the grounds that it is illegal to enter a judgment of conviction on attempted capital felony murder and aggravated robbery when the aggravated robbery was the underlying specified felony to the charge of attempted capital murder.

The issue of the line-up identification was considered on appeal and decided adversely to petitioner. The matter cannot be raised in a petition for postconviction relief. Rule 37 was not intended as a means of again presenting questions which were settled on direct appeal. Neal v. State, 270 Ark. 442, 605 S.W. 2d 421 (1980).

The question of legality of the sentences imposed on petitioner was also considered on direct appeal, but on a different ground than those presented in this petition. On appeal, petitioner alleged that the acceptance of the jury verdict violated the constitutional prohibition against double jeopardy and Ark. Stat. Ann. § 41-105 (1) (e) (Repl. 1977) which provides that a defendant may not be convicted of more than one offense if his conduct constitutes an offense defined as a continuing course of conduct and is uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses. This Court rejected that argument because it was found that two distinct impulses instigated the aggravated robbery and the attempted murder. Furthermore, it was noted that no objecdon had been made at trial to the charges or the sentences, thus precluding the argument from being considered for the first time on appeal.

Petitioner now submits that the failure to object at trial should not preclude relief under Rule 37 because the trial court did not have the authority under Rule 37.1 (b) to impose the sentences since they are in excess of the maximum sentences allowed by law. Petitioner cites as support for his contention this Court’s decisions in Singleton v. State, 274 Ark. 126, 623 S.W. 2d 180(1981); Simpson v. State, 274 Ark. 188, 623 S.W. 2d 200 (1981); and Swaite v. State, 272 Ark. 128, 612 S.W. 2d 307 (1981). In these cases, we held that when a criminal offense by definition includes a specified lesser offense, a conviction cannot be had for both offenses under Ark. Stat. Ann. § 41-105 (1) (a) (Repl. 1977). The statute provides:

(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a)one offense is included in the other, as defined in subsection (2);
(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(b) it consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(c) it differs from the offense charged only in the respect that a less serious risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

On direct appeal, petitioner did not directly cite this statute and confined his arguments to the question of double jeopardy. Accordingly, this Court ruled on the issue as presented by petitioner under Ark. Stat. Ann. § 41-105 (1) (e) (Repl. 1977). He now argues that in light of our recent holdings in Swaite, Singleton and Simpson, this Court should examine the legality of the sentences under Rule 37.1 and conclude that the sentences were imposed in violation of the laws of this state and were in excess of the maximum authorized by law. We agree with petitioner’s contention and set aside the conviction and sentence for the lesser included offense of aggravated robbery. The conviction and sentence for attempted capital felony murder are not disturbed. In proving the elements of attempted capital murder, it was necessary to prove the elements of aggravated robbery. Therefore, Ark. Stat. Ann. § 41-105 (1) (a) (Repl. 1977) prohibits petitioner’s conviction for both offenses.

Petition granted in part and denied in part.


text:
    Everett E. SHELTON v. STATE of Arkansas
    CR 81-53
    627 S.W. 2d 18
    Supreme Court of Arkansas
    Opinion delivered January 25, 1982

      Lessenberry & Carpenter, by: Thomas M. Carpenter, for appellant.

      Steve Clark, Atty. Gen., for appellee.
   Per Curiam.

This is a petition pursuant to Rule 37.2, Arkansas Rules of Criminal Procedure (Repl. 1977). Petitioner contends he was effectively denied assistance of counsel at his original trial. The case was affirmed in the original action in an unpublished opinion by the Court of Appeals on April 29, 1981 (CA CR 81-35).

Briefly, the history of the case reveals petitioner was charged with theft of property in excess of $2500 in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977). He engaged the services of three different attorneys but for one reason or another all three were disqualified or resigned. On February 29, 1980, the public defender was appointed to defend the petitioner and the case was set for trial on April 10,1980. At a hearing on April 1, 1980, the petitioner persuaded the court to allow him to serve as his own defense counsel at the trial. Although the court attempted to persuade the petitioner that it would not be wise for him to do so, it nevertheless granted petitioner the right to proceed as his own attorney. The court then informed the public defender to continue to serve in an advisory capacity and to be available for the trial. The petitioner requested an out-of-state attorney be present to testify on his behalf but for some unknown reason the out-of-state attorney was either not contacted or did not appear. However, the parties stipulated into the record what the testimony of this witness would have been had he been present. The petitioner had also requested the presence of two other witnesses and another attorney. No subpoena was issued for the local attorney, and the two other witnesses did not appear.

The trial was held on April 10, 1980; petitioner was convicted of theft of property and sentenced to a term of 20 years in the Arkansas Department of Correction with five years suspended. During the course of the trial petitioner encountered much difficulty in cross-examining witnesses. The court became annoyed by the frequent conferences between the petitioner and the public defender. The court ordered the public defender to sit down and keep quiet until the defendant requested him to do something on his behalf. On another occasion the court called a brief recess and instructed the petitioner to get with his attorney during the recess and prepare to finish the trial. Later, the court told the petitioner he was apparently unable to couch his questions in proper form but the public defender would be able to do so and thus enable the court to make a proper ruling. Petitioner was informed by the court he could still object if he disagreed with the actions of the public defender. The petitioner agreed with this proposal and allowed the public defender to do the questioning from that point on with some minor exceptions when the petitioner injected himself into the proceedings. For all practical purposes the public defender conducted the balance of the trial until the state rested.

After the state rested the public defender made several motions which were denied by the court. The court was then informed that the petitioner did not wish to take the stand. This statement was verified by the court asking the petitioner if the statement was correct and by the petitioner agreeing that he did not wish to take the stand. In fact, at this time petitioner stated that whatever the public defender said was all right with him. The court then stated:

You’re the attorney, now, and this is a judgment that you can make. Mr. Rosenzweig is just trying to get you through the technical areas of getting evidence into the court and keeping evidence out of court. But this is an area in which you can.have just as much judgment as Mr. Rosenzweig. He can advise you but is this your decision in this case?
MR. SHELTON: Yes, sir.

such capacity ...” would not apply to appellant, as he was not acting or assuming to act as a real estate broker. To so isolate this sentence would be to misinterpret the statute. The second section which gives the appellant grounds for argument reads “. . . where the licensee in performing or attempting to perform any of the acts mentioned herein . ” Again, if you read only that portion of the sentence, it would give the impression that appellant was correct in his interpretation of the statute that the Commission could only take action against a licensed broker or salesman. However, in an over-all reading of the statute it is fairly clear that the “acts mentioned herein” means the acts listed following this portion of the statute, the applicable ones being (a), (b), (h) and (j). Therefore, in reading the statute in its totality it states that the Commission shall have the power, under circumstances stated therein, to discipline a real estate broker or salesman or “ . .. any person who shall assume to act in either such capacity... .” The last quoted portion is an attempt to give the Commission authority over persons who assume to act as brokers or salesmen. We do not question appellant’s statement that in order for one to be acting as a broker or salesman he must be acting (a) for another and (b) for compensation or expectation of compensation. However, the Commission admits that appellant was not acting as a salesman or broker at the time he sold the lots in question. The Commission’s order is based primarily upon a claim of his making substantial misrepresentation or false promises concerning the building of the road in the subdivision and the reliance of the purchasers that appellant’s actions were sanctioned by the Real Estate Commission. These are grounds which may give rise to revocation or suspension and need not be made while the person is in fact acting as a broker or salesman.

One of the purposes set forth in the act is to “safeguard the interests of the public.” We have held that statutes enacted for the benefit of the public should be liberally construed to effectuate the purpose of the act. Laman v. McCord, 245 Ark. 401, 432 S.W. 2d 753 (1968). Both parties seem to place part of their argument in the case of Rothgeb v. Safeco Insurance Co. of America, 259 Ark. 530, 534 S.W. 2d 759 (1976). The Rothgeb case never came through the Real Estate Commission and thus there was no issue as to the suspension of a broker’s license. The action was brought by an individual against a real estate partnership alleging the partnership violated sections of Ark. Stat. Ann. § 71-1307 and asking for damages under a surety bond. Safeco Insurance Company was joined as a defendant because they wrote the surety bond for the Real Estate Commission at that time, and the defendants had gone into bankruptcy. In Rothgeb we stated:

We must agree with appellee’s position that since Wimpy was selling land owned by him and Steele, he could not be considered an agent or broker, which requires a license, within the meaning of § 71-1302. If Wimpy was acting solely as the owner, he would not come within the provisions of § 71-1302. . . .

We do not think Rothgeb is controlling in the present situation, as there was neither an investigation nor a finding by the Commission of improper conduct. In the present case the Commission did not suspend appellant’s license for selling the land but for promises made outside the sale which the Commission determined violated the above-mentioned provisions of the statutes and Rule 40. The appellant also relies on Bell, Commissioner v. Investment Training Institute, 271 Ark. 663, 609 S.W. 2d 919 (1981). In Bell the complaint was against a person who was running a school wherein applicants for licenses as security broker-dealers were tutored. The action of the commissioner in that case was an attempt to prevent the carrying on of the business of tutoring applicants for licenses. Again, the action was brought in the court seeking an injunction preventing appellees from performing certain acts. That is not the case in the present action.

In the present case it is obvious that appellant could have performed these very same transactions had he possessed no license at all. However, since the transactions dealt with real estate and most of the sales were initiated in his real estate office where his broker’s license was prominently displayed, we think the purchasers were entitled to rely upon appellant to act in the manner in which a broker or salesman should act. Almost every purchaser of a lot in this subdivision indicated they relied upon the fact that appellant was a, real estate broker. There is, of course, substantial evidence to support the finding of the Commission that appellant misrepresented matters and made false promises. In reviewing matters which were brought up through the Administrative Procedure Act we give much weight and credence to the action of the Board or Commission because of their knowledge of the subject matter before them. The standard of review in this court is whether there is substantial evidence to support the action of the Real Estate Commission in suspending appellant’s broker’s license for a period of six months. Ark. Real Estate Commission v. Harrison, 266 Ark. 339, 585 S.W. 2d 34 (1979). Therefore, the circuit court decision affirming the order of the Real Estate Commission is hereby affirmed.

Affirmed.

Hays, J., not participating.


author: John P. Gill, Special Justice.

text:
    Bobby TUCKER v. William Reed JOHNSON
    81-121
    628 S.W. 2d 281
    Supreme Court of Arkansas
    Opinion delivered February 1, 1982
    [Rehearing denied March 8, 1982.]

      Spencer, Spencer & Shepherd, P.A., for appellant.

      Donald Frazier, for appellee.

      Adkisson, C.J., would grant the petition; Holt, J., not participating.

   John P. Gill, Special Justice.

This is an appeal from Union Circuit Court from an order denying a motion to set aside a default judgment due to defective summons. We reverse because the summons does not conform to Rule 4 (b), ARCP.

Appellee Johnson filed a complaint against appellant-defendant Tucker alleging negligence in the repair of an airplane resulting in a crash thereof. On March 12, 1980 a summons was issued by the Circuit Clerk for the Union Circuit Court. The summons and complaint were served upon appellant the following day, and on March 22, 1980 the appellant mailed a letter to the appellee-plaintiff’s lawyer acknowledging the crash and in effect denying liability therefor. No pleading was filed by defendant-appellant in the Circuit Court and on June 25,1980 appellee obtained a default judgment against appellant. Within 90 days, as required by Rule 60 (b), ARCP, appellee filed a timely motion to set aside the default judgment, and after hearing thereon, the motion was denied; this appeal followed.

The summons in question reads as follows:

IN THE CIRCUIT COURT OF UNION COUNTY, ARKANSAS
No. CIV 80-90
Second Division
William Reed Johnson v. Bobby Tucker
PLAINTIFF SUMMONS DEFENDANT
THE STATE OF ARKANSAS, To the Sheriff of Union County, Arkansas, Greetings:
YOU ARE COMMANDED TO SUMMONS Bobby Tucker, 100 W. Sharp Street, El Dorado, Arkansas.
to answer in twenty days after the service of this summons upon him a complaint filed against him in the CIRCUIT COURT OF UNION COUNTY, ARKANSAS, Second Division thereof, and warn him that upon his failure to answer said complaint that same will be taken for confessed; and you will make due return of this summons on the first day that said Court is in session after twenty days after the date of the issuance hereof.
Witness my hand and seal of said Court, this 12th day of March, 1980.
Lorene Flenniken, Clerk
By Irene Lipsey, D.C. (sig.)

Nine months before the summons was issued, this Court adopted Rule 4 (b), ARCP which sets forth mandatory criteria for a valid summons as follows:

(b) Form: The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the Court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiff’s attorney, if any; otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default will be entered against him for the relief demanded in the complaint.

The summons in the case at bar is defective because: (1) it is not directed to the defendant, (2) it does not direct the defendant to file a pleading and defend, (3) it does not notify the defendant that in the event of his failure to file a pleading that a judgment by default will be entered against him and (4) that such default judgment will be for the relief demanded.

One purpose of Rule 4 (b) is to bring the archaic language of the summons suggested by Ark. Stat. Ann. § 27-306 (Repl. 1979), and used by trial courts in this state for over a century, into modern more readily understandable terms. It is recognized that the summons cannot, as admonished in appellee’s brief, provide a short course in legal pleading practice, but it can and must be sufficient to advise a non-lawyer what is expected of him. The first reading of the summons by a defendant is the only step in the legal process which is not expected to be performed with the advice and assistance of licensed attorneys, therefore this Court in adopting Rule 4 (b) sought to achieve a summons format which would advise defendants that their person or property was in jeopárdy by virtue of the complaint.

With these criteria in mind, the above omissions are fatal to the summons in the case at bar. First, the sheriff and not the defendant was directed by the Clerk to take action. Second, the summons warned the defendant to “answer”. Third and fourth, the consequences of the failure of the defendant to answer are more reasonably calculated to be understood by laymen using Rule 4 (b) language, than by using the legal term “taken for confessed” appearing in the summons.

The summons does not substantially comply with the requirements of Rule 4 (b). This is not a matter of form over substance, rather it is the absence of sufficient substance to give the defendant notice and the Court jurisdiction.

Service of valid process is necessary to give a court jurisdiction over a defendant. Halliman v. Stiles, 250 Ark. 249, 464 S.W. 2d 573 (1972). Under our rules, the summons is a process used to apprise a defendant that a suit is pending against him and afford him an opportunity to be heard. Southern Kansas Stage Lines Co. v. Holt, 192 Ark. 165, 90 S.W. 2d 473 (1936).

Since the summons format has not been heretofore prescribed for compliance with Rule 4 (b), such notice to be valid must be reasonably calculated to make the defendant aware of his duty to take action or risk entry of a default judgment. Estes v. Masner, 244 Ark. 797, 427 S.W. 2d 161 (1968); see also Pender v. McKee, 266 Ark. 18, 582 S.W. 2d 929 (1979). Judgments by default rendered without valid service of notice are judgments rendered without jurisdiction and are therefore void. Edmonson v. Farris, 263 Ark. 505, 565 S.W. 2d 617 (1978); Halliman v. Stiles, supra; Ark. Stat. Ann. § 29-107 (Repl. 1979).

In the case at bar, however, the actions and method of serving process were valid, but the notice itself was defective. In these circumstances we therefore hold that a default j udgment based upon valid service of a defective summons is voidable. Being voidable, there was a need for showing a meritorious defense. White v. Ray, 267 Ark. 83, 589 S.W. 2d 28 (1979); Edmonson v. Farris, supra. We have not heretofore defined the term “meritorious defense”; it is evidence (not allegations) sufficient to justify the refusal to grant a directed verdict against the party required to show the meritorious defense. In other words, it is not necessary to prove a defense, but merely present sufficient defense evidence to justify a determination of the issue by a trier of fact.

In applying the foregoing to the case at bar, it appears that the defendant-appellant showed a meritorious defense. The complaint alleged appellant’s negligent repair of an airplane landing gear resulting in a crash thereof. At the hearing to set aside the default judgment, the appellant presented evidence that before returning the airplane to appellee, appellant had test flown the airplane and that the landing gear was operating properly. This presented a fact issue for determination by the trier of fact — it presented a meritorious defense.

Appellee argues that the defendant-appellant having received the summons, did nothing but write the plaintiff’s attorney; this is tantamount to arguing that the defendant had actual notice of the pending action and waived the defect in the summons. Such contention is not sound. Where a defect in the summons is so substantial as to render the process void, there can be no waiver of the defect. Storey v. Brewer, 232 Ark. 552, 339 S.W. 2d 112 (1960). Nor does actual knowledge of a proceeding validate defective process. DeSoto, Inc. v. Crow, 257 Ark. 882, 520 S.W. 2d 307 (1975); McIntosh v. Ponder, 222 Ark. 701, 262 S.W. 2d 277 (1953). A default judgment is valid by virtue of valid process, and not by the fact that a defendant otherwise learns that a lawsuit is pending.

For a summons to be valid process, it must at the very least be such that will give the person notice that an action is pending against him; advise him of the action which he must take to defend himself; and apprise him of the consequences of his failure to take that action. Rule 4 (b) was adopted for that purpose. A summons which does not follow that rule lacks substance, and a defendant receiving such summons lacks notice. Since the Union Circuit Clerk issued defective summons, the default judgment entered was voidable; the appellant had a meritorious defense, and the order denying appellant’s motion to set aside the default judgment is reversed and the cause remanded.

The issuance of summons is a matter of court administration and should not constitute an unknown procedural trap for the plaintiff. Accordingly, we are today issuing a per curiam opinion setting forth the summons form prescribed by this Court to comply with Rule 4 (b).

Holt, J., not participating.

      We recognize the dicta in Storey v. Brewer is applicable law to the facts in the case at bar.


text:
    Magnolia FELTS & James Vernon FELTS, Guardian of the Person & the Estate of Harry Ellis FELTS v. J. C. FORD.
    81-268
    627 S.W. 2d 25
    Supreme Court of Arkansas
    Opinion delivered February 1, 1982

      John B. Mays and Brent W. Martin, for petitioners.

      Burrow ir Harlan, for respondent.
   Per Curiam.

Petition for review is denied.

Darrell Hickman, Justice, concurring. I agree that the petition in this case should not be granted because the petitioner did not comply with Rule 29, Rules of the Supreme Court. In a per curiam issued March 2, 1981, regarding Amendment to the Rules of the Supreme Court and Court of Appeals, we amended Rule 29 (6) to provide that no petition for a review of a Court of Appeals decision would be granted on the grounds that the case involved an issue of significant public interest or legal principle of major importance unless the party petitioning files with the Court of Appeals, before the case is submitted, a motion asking that the case be certified to us. Since that was not done in this case, we have to deny the petition. But I file this concurrence to strongly emphasize that I disagree with the decision reached by the Court of Appeals in this case. The Court of Appeals in a careful and considered opinion held in substance that a lease signed by the husband does not have to be joined in by the wife although the property is held as an estate by the entirety. To me the decision is wrong.

A decision by the Court of Appeals in Arkansas is recognized as binding on lower courts and unless we have ruled on that question, such a decision obviously carries weight. But it is not the final word in such a matter and until this Court rules on it, a decision by the Court of Appeals should not be considered by the bench and bar as the final word in the matter. Posados v. Warner, Barnes & Company, 279 U.S. 340 (1929).

I feel compelled to point our my position for posterity.

Adkisson, C.J., and Purtle, J., join.


author: Per Curiam. John I. Purtle, Justice,

text:
    Robert M. RUSSELL v. Tom F. DIGBY, Sixth District Circuit Judge, Third Division, Pulaski County, and WORTHEN BANK & TRUST CO., N.A.
    81-228
    627 S.W. 2d 25
    Supreme Court of Arkansas
    Opinion delivered February 1, 1982

      Henry ir Duckett, by: David P. Henry, for appellant.

      Thomas P. Thrash, for appellee.
   Per Curiam.

Motion to Dismiss is granted.

John I. Purtle, Justice,

dissenting. I feel the majority has inflicted an unnecessary and serious injury upon this particular petitioner and upon untold numbers who will stand in his place in the future. The petition to dismiss the appeal should not be allowed under the circumstances presented by the respondents. By refusing to consider this case on its merits the majority is, in effect, telling the respondents that it was all right to use an obviously outdated law to deprive a citizen of his rights as guaranteed by the constitution and as pronounced by the local courts.

The respondents never filed a pleading in this court. They paid the judgment after the petitioner filed his brief in this court. This indicates that they intended merely to delay paying a j ust claim. I would hear the case on its merits; and, further, it is my tentative feeling after a careful review of the record that an opinion should issue declaring Ark. Stat. Ann. § 30-301 (Repl. 1979) to be null and void. I would further award all costs of the action, appeal and brief to the petitioner.

Adkisson, C.J., and Hickman, J., join in this dissent.


text:
    Donald E. COLYER v. STATE of Arkansas
    627 S.W. 2d 22
    Supreme Court of Arkansas
    Opinion delivered February 1, 1982

      F. James Jefferson, for appellant.

      Steve Clark, Atty. Gen., for appellee.
   Per Curiam.

Appellant Donald E. Colyer, by his attorney F. James Jefferson, has filed a motion for a rule on the clerk. The motion implies that a notice of appeal was not given and indicates that the record may not have been timely filed. The motion for a rule on the clerk is denied as no good reason is given for the dilatory actions.

If an affidavit had been attached to the motion, and if it had admitted a late notice of appeal and a late tendering of the record, and if it had stated that the attorney was careless in the computation of time, or made an error, or gave any good cause, the motion could be granted. In a per curiam opinion regarding belated appeals rendered February 5, 1979, 265 Ark. 964, we discussed the problem of an untimely tender of a record caused by the attorney. We decided that we have no alternative but to grant the motion for relief in such a case. However, we pointed out that a copy of the opinion would be forwarded to the Committee on Professional Conduct as is our practice.

Accordingly, we deny without prejudice the motion for a rule on the clerk.