text:
    FIRST COMMERCIAL BANK, N.A. v. Bettye A. KREMER
    86-263
    728 S.W.2d 172
    Supreme Court of Arkansas
    Opinion delivered April 27, 1987

      Friday, Eldredge & Clark, by: C. Tab Turner, for appellant.

      Robert A. Newcomb, for appellee.
   David Newbern, Justice.

This appeal is from a judgment, based on a jury verdict, holding the appellant liable in a malicious prosecution case. The appellant contends first that the evidence is insufficient to support the verdict. Second, the appellant claims the court erroneously refused to instruct the jury that if in this action the jury found the appellee to have been guilty of the criminal offense with which she was previously charged because of the appellant’s allegations, it should find for the appellant. The third point is that the punitive damages awarded are so large as to shock the conscience of the court and should be reduced or a new trial granted. We affirm, as we find the jury’s verdict was supported by substantial evidence, the instruction proffered was not a sufficient statement of the law, and the jury’s verdict was not so large as to shock the conscience of the court.

In a case in which a defendant’s directed verdict and judgment notwithstanding the verdict motions were denied and it is contended that the evidence was insufficient to support the plaintiff’s claim, we view the evidence in the light most favorable to the plaintiff. If we find any evidence sufficient to warrant the verdict, we affirm the trial court’s refusal to direct a verdict. Higgins v. Hines, 289 Ark. 281, 711 S.W.2d 281 (1986); Downey v. Jones Mechanical Contractors, 273 Ark. 207, 619 S.W.2d 614 (1981).

The appellee is a recovering alcoholic who, after six months of sobriety, engaged in a serious drinking bout. In a very intoxicated condition she called a friend, Ms. Bruno, for help. Ms. Bruno called Arkansas Rehabilitation Institute (ARI) and learned that the appellee could be admitted there but would have to bring $400 as a deposit, pending confirmation of insurance coverage, to pay for her stay at ARI. Ms. Bruno made out a check for $400 on the appellee’s account and had the appellee sign it. In the process of having the appellee admitted to ARI, the check apparently was displayed, but Ms. Bruno left the facility with the check after the appellee had been admitted. The check Ms. Bruno testified she filled out is not the one which became the subject of this litigation. The appellee checked out of ARI the following day. Sometime later, she discovered that a $400 debit, not shown in her personal check records, had been made on her checking account at the appellant bank. At her request, the appellant mailed her the check representing the debit. It was a check to ARI, but the appellee did not recall having made any such check to ARI, and she concluded some other person had signed her name. Her conclusion was based on the signature, which she did not recognize as her own, and particularly on the fact that the middle initial “K” was used rather than her middle initial which is “A.” The check introduced into evidence showed the appellee’s name printed on the check form as “Bettye K. Kremer” and signed “Bettye K. Krewer.” The printing apparently had been done erroneously, as it was undisputed that the signature card on file with the appellant showed the signature as “Bettye A. Kremer.”

After concluding there had been a forgery of her signature, the appellee called the appellant and spoke with an employee who explained that the appellee would have to make out an affidavit that the check had been forged in order to receive credit for the $400. The appellee signed the affidavit which stated that the signature on the check was not hers, that the check was made without her knowledge and consent, that she never received any benefit or value for the check, and that she had not presented it for negotiation or payment. The appellant’s employee helping the appellee asked if she knew who would forge a check on her account to ARI, and the appellee replied that she had been at ARI over the weekend.

The appellant then placed the matter in the hands of its employee David Butler. Mr. Butler called ARI and spoke with Ms. Hoppis who told him she had seen the appellee sign the check. He then compared the signature on the check with that on the signature card and noted that the middle initials were different. Mr. Butler then took the matter up with Detective Matlock of the Little Rock Police Department. At Detective Matlock’s request, the appellee provided handwriting samples for comparison purposes, and an analysis was done by the State Crime Laboratory which concluded that it could not identify the writing contained in the signature on the check. Detective Matlock attempted to speak to Ms. Hoppis but was told she could not speak with him because of the institute’s policy of confidentiality. He then spoke with Deputy Prosecutor Cairns who advised him that no criminal charges should be filed, but the matter should be handled as a civil suit. Detective Matlock reported the results of the handwriting analysis to Mr. Butler. He told Mr. Butler that he and Mr. Cairns felt there was no criminal prosecution evidence, and further that he thought that Ms. Hoppis had written the signature on the check with no criminal intent but had done so just to help the appellee. Mr. Butler disputed Detective Matlock’s testimony, saying Matlock did not inform him of Mr. Cairns’s recommendation.

Mr. Butler then spoke to another deputy prosecutor, Mr. Douglass. In discussing the case with Mr. Douglass, Mr. Butler did not mention that the check had been to the laboratory. He did not tell Mr. Douglass that another deputy prosecutor had reviewed the case, made a negative recommendation, and expressed suspicion of Ms. Hoppis. Neither could Mr. Douglass recall that Mr. Butler told him about the disparity in the middle initials. Mr. Douglass thereafter obtained a sworn statement from Ms. Hoppis that she had seen the appellee sign the check. Mr. Douglass’s testimony was that he would not have issued the warrant for the appellee’s arrest when he did so had he known the facts known to Mr. Butler. However, the warrant was issued, and the appellee was arrested at her apartment, on charges of false swearing and theft by deception, by two uniformed policemen, one of whom testified that she was crying and shaking uncontrollably. She was taken to the police station where she was fingerprinted and “booked.” Although it was not his custom to do so, one of the officers called a municipal judge and obtained his permission to release the appellee on her own recognizance because the officer had decided that in view of her “upset” condition it would be best that she not be placed in the detention center. The policemen detected no evidence that the appellee had been drinking that evening.

Both of the charges against the appellee were dismissed by the municipal court for insufficient evidence of intent and lack of probable cause. Thereafter, employees of the appellant asked the prosecutor’s office to file the theft by deception charge with the circuit court despite the municipal court’s ruling. The request was refused.

1. Failure to direct a verdict

The first point for reversal is stated in the appellant’s brief as follows:

The trial court erred when it failed to grant defendant’s [appellant’s] motions for directed verdict and judgment notwithstanding the verdict on the issue of probable cause where eyewitness testimony formed the basis of defendant’s [appellant’s] initiating criminal proceedings and the jury’s verdict is not supported by substantial evidence.

The argument under this point is primarily that the appellant was entitled to a directed verdict as a matter of law because in Malvern Brick and Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961), we held that one who bases a criminal prosecution upon an eyewitness identification of the accused cannot lack probable cause. We had taken that argument and citation to contend that because the appellant had the statement of Ms. Hoppis that she saw the appellee sign her name to the check and the appellant also knew that the appellee had sworn she had not signed the check, it was the obligation of the trial court to direct a verdict because, as a matter of law, the appellant had probable cause to prosecute. However, in oral argument the appellant asserted that this point for reversal had another aspect. It contended that the evidence was insufficient to show a lack of probable cause because it was undisputed that the appellee had received a benefit from the funds represented by the check, whereas her sworn affidavit stated that she had not received any such benefit.

a. Receipt of benefit

The appellee testified that when she went to the appellant to execute the forgery affidavit she did not have her glasses and could not read the document she was asked to sign. She said the appellant’s employee who helped with the document explained only that it was a statement that someone other than the appellee had signed the check. The employee testified that she explained the document fully, including the part about not receiving a benefit. The one clear thing about what was said in that encounter is that the appellee did not try to hide the fact that she had had a recent relationship with ARI. The appellant’s employee testified that the appellee told her she had been at ARI the previous weekend.

An employee of ARI testified that the appellee’s bill at ARI of over $ 1,000 had not been paid, but the appellee testified that when she checked out of ARI she was told her bill would be covered by insurance. The appellee also testified that she did not know how much of her bill at ARI remained unpaid.

Even if it were undisputed that the bill had not been paid, that would not resolve the factual question whether there was probable cause for the appellant’s employees to charge the appellee with false swearing or theft by deception. Both the offense of false swearing, see Ark. Stat. Ann. § 41-2603 (Repl. 1977), and theft by deception, see Ark. Stat. Ann. § 41-2203 (Repl. 1977 and Supp. 1985), require knowledge on the part of the perpetrator. There clearly was a question for the jury whether the appellant had a reasonable belief that the appellee knowingly executed the affidavit falsely with respect to whether she received a benefit from ARI in exchange for the funds represented by the check.

b. Probable cause as a matter of law

As noted above, the appellant contends that because the prosecution of the appellee was based on Ms. Hoppis’s eyewitness testimony it had probable cause as a matter of law, citing Malvern Brick and Tile Co. v. Hill, supra. In that case, one Mendenhall alleged he had been beaten by seven persons. The altercation had to do with a labor dispute at Malvern Brick and Tile Co. where Mendenhall was employed. He reported to Mr. Garvan, the executive vice-president of the company, and told him that shots had been fired into his home. Garvan inspected Mendenhall’s home to see the bullet damage, and then he took Mendenhall to the prosecutor’s office where Mendenhall named the seven people who had battered him, including Hill. All seven were prosecuted on the basis of an affidavit for warrant for arrest executed by Mendenhall. The company posted $100 as “advance court costs” to assure the prosecution of the seven persons named. At the trial, Hill testified he had been elsewhere at the time of the battery, and he was ultimately acquitted of the battery of which the other six named were convicted. Hill sued Mendenhall, the company, and Garvan for malicious prosecution. A jury verdict found all three liable. Reviewing the evidence to determine whether the jury could properly have determined that Garvan and the company lacked probable cause to sponsor the prosecution of Hill, we found no evidence that probable cause was lacking. Rather, we found that Garvan and the company had done what any good employer would have done in the same circumstances, and that it was proper to have relied on the identification of Hill by Mendenhall. Our opinion contained the following:

In malicious prosecution cases we have defined the words, “probable cause,” as “such a state of facts known to the prosecutor, or such information received by him from sources entitled to credit, as would induce a man of ordinary caution and prudence to believe, and did induce the prosecutor to believe, that the accused was guilty of the crime alleged, and thereby caused the prosecution.” Hitson v. Sims, 69 Ark. 439, 64 S.W. 219 [1901]; Whipple v. Gorsuch, 82 Ark. 252, 101 S.W. 735 [1907],
In the annotation in 43 A.L.R. 2d p. 1048, cases from several jurisdictions are cited to sustain the statement: “Where the defendant in good faith has relied on an apparently sound identification by some other person, the Courts have held that there is no liability in malicious prosecution.” [232 Ark. at 1004-1005, 342 S.W.2d at 308.]

That is, of course, the language upon which the appellant in the case before us has relied. However, there is much more to the opinion:

Furthermore, the evidence established without contradiction that when Mendenhall went to the office of Malvern [the company] . . . and told Garvan of the assault, then before doing anything, Garvan consulted immediately with the regular retained attorneys of Malvern. Garvan and Malvern relied on the advice of competent and qualified counsel. We have a long list of cases in Arkansas — and the general rule over the country is to the same effect — that when one recites the full facts to a competent attorney, such is a complete defense against the charge of acting without probable cause.... In view of these cases, it is clear that Garvan and Malvern, by acting on the advice of competent counsel, entirely dispelled any claim that they acted without probable cause; and until Hill could establish that Garvan and Malvern acted without probable cause, he could not hold them liable in this malicious prosecution action. Therefore, as to Garvan and Malvern, the judgment is reversed and dismissed.

While we noted the propriety of the reliance on Mendenhall’s statement, it is apparent that our holding in the case was that Garvan and the company had not been shown to lack probable cause in view of their having recited the full facts to a competent attorney and having been advised by him to proceed. Obviously, the appellant in the case before us now cannot rely on that holding.

This case, and Malvern Brick and Tile Co. v. Hill, supra, differ importantly in another aspect. There the defendant possessed no information which would contradict the content of the third party’s statement. Here the defendant had other information available which was at odds with the eyewitness’s statement.

The existence of probable cause is determined by an examination of the information known to the defendant at the time the proceedings were instituted. See Carroll v. Gillespie, 14 Mass. App. 12, 436 N.E.2d 431 (1982), a case very similar to this one, which provides an excellent overview of this subject. Where the only information known to the defendant is contained in a third party’s statement, and he is possessed of no information inconsistent with that statement, probable cause may exist as a matter of law.

In this case, the appellant relied on an eyewitness statement, but was also in possession of the following contradictory facts: the differing middle initial, the inability of the crime laboratory’s handwriting expert to identify the signature as that of the appellee, Detective Matlocks’s suspicion of Ms. Hoppis as the author of the signature, and Mr. Cairns’s assessment of the matter as lacking in evidence to prosecute.

The jury should be allowed to consider all the evidence available to the defendant to determine if ordinary caution was exercised in bringing the charges. To hold otherwise would allow the defendant to avoid the jury’s scrutiny of evidence known which could make prosecution unreasonable.

The appellant could not rely on a full and fair disclosure to counsel as a defense in this case. It has quite properly not asserted that this case should be reversed because of undisputed evidence that it made such a disclosure to counsel. We are not creating a straw man to be knocked down by reciting that there was no such disclosure. Rather, the point is that in assessing the reasonable belief of the appellant the jury could consider not only Ms. Hoppis’s testimony identifying the appellee as the person who signed the check but the other information as well in deciding whether there was probable cause.

We hold the appellant was not entitled to a directed verdict as a matter of law.

2. The instruction

We do not disagree with the appellant’s assertion that if the jury had found that the appellee was guilty of the offenses with which she was charged the appellant would have established a defense to her claim. See Restatement (Second) of Torts § 657 (1977). However, the instruction offered by the appellant was insufficient to permit the jury to reach any such conclusion, as it did not state the elements of the offenses with which the appellee had been charged. We do not question the statement in the appellant’s reply brief that in considering this defense the jury need not find that the appellee was guilty of each element of the offenses beyond a reasonable doubt. However, if the jury is to consider her guilt or innocence using the preponderance of the evidence standard, it surely must be instructed on the elements of the offenses.

The appellant also argues that the jury was informed of the basis of the charges by the deputy prosecutor. The pages in the record to which the appellant refers contain the testimony of Mr. Douglass explaining why he would not have filed the charges had he known all the facts known to Mr. Butler. While there is some discussion about how the offenses of false swearing and theft by deception go hand in hand but are separate criminal acts, the discussion there is woefully short of explaining to the jury the elements of the offenses.

3. The damages

The jury initially awarded the appellee compensatory damage of $5,000 plus punitive damages of $ 150,000. The trial judge gave the appellee a choice of accepting a remittitur of $75,000 or a new trial. The appellee accepted the $75,000, and the judgment was for that amount plus the compensatory damages. We are asked to hold that the punitive award is so excessive, in comparison with the compensatory award, as to shock the conscience of the court. We decline to do so.

There is no fixed standard for the measurement of punitive damages, and even if the proportionality of punitive damages to compensatory damages is an appropriate consideration, it is only one such consideration among others equally important. Ray Dodge Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). Another consideration which may be weighed by the jury, as was done in this case, is the net worth of the defendant (appellant). Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983). Given the evidence of malice, including the appellant’s decision to proceed with the prosecution after having been advised against it by one deputy prosecutor, the failure to disclose all the facts to the second deputy prosecutor, and its persistence in the case even after its dismissal by the municipal court, which could have been considered by the jury, we cannot say punitive damages were generally improper in this case. Nor can we say the amount shocks the conscience of the court.

Affirmed.

Hays, J., not participating.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Wanda J. BALLHEIMER v. SERVICE FINANCE CORPORATION
    86-223
    728 S.W.2d 178
    Supreme Court of Arkansas
    Opinion delivered April 27, 1987

      Phil Stratton and Casey Jones, Ltd., by: Phil Stratton, for appellant.

      Julius C. Acchione, for appellee.
   Tom Glaze, Justice.

This case involves an action on a debt owed for medical services incurred by appellant on June 22,1983, at the Baptist Medical Center in Little Rock. Appellant admits owing the debt, but argues the appellee, assignee of the Baptist Medical Center, is barred from bringing the suit since it delayed in doing so for thirty-three months from the date appellant incurred the debt. Appellant’s argument is based upon Ark. Stat. Ann. § 37-245 (Supp. 1985), which provides that “[n]o action shall be brought to recover charges for medical services performed or provided prior to April 1,1985, by a physician or other medical service provider after the expiration of eighteen (18) months after the date such services were performed or provided.” The trial court rejected appellant’s argument, holding § 37-245 did not apply, but instead applied Ark. Stat. Ann. § 37-209 (Repl. 1962). Section 37-209 provides that actions on promissory notes or other instruments in writing must be commenced within five years after the cause of action accrues.

On appeal, appellant contends the trial court erred in applying § 37-209. Appellee responds the court was correct, but, in addition, it asserts § 37-245 was inapplicable because the medical center was not a provider of medical services under the terms of that statute. Appellee also asserts § 37-245 violates the equal protection clause because it singles out medical service providers by treating them differently from other creditors. We hold that § 37-245 is applicable to this cause of action and is not a denial of equal protection of the law.

When appellant entered the Baptist Medical Center, she signed a financial agreement, promising to pay the hospital for services and supplies rendered during her stay. She was discharged two days later, owing the hospital $1,028.75. Much of the parties’ argument concerns the validity or enforceability of the agreement signed by appellant and whether it was an instrument in writing that effectuated the longer five-year statute of limitations (§ 37-209) thereby avoiding the shorter one (§ 37-245) dealing specifically with the recovery of charges for medical services.

In support of appellee’s position that § 37-209 applies, it cites Jefferson v. Nero, 225 Ark. 302, 280 S.W.2d 884 (1955), which relates the rule that if there is doubt as to which of two or more statutes of limitation applies to a particular action or proceeding, and it is necessary to resolve the doubt, it will generally be resolved in favor of the application of the statute containing the longest limitation. That rule is certainly a valid and settled one, but it is not applicable here where no doubt exists concerning what the General Assembly intended when it enacted the later but shorter limitation statute of § 37-245.

As we have said before, where a special act applies to a particular case, it excludes the operation of a general act upon the same subject. Williams v. City of Pine Bluff, 284 Ark. 551, 683 S.W.2d 923 (1985), and Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). Prior to § 37-245, actions brought to recover medical services were subject to the general limitation provisions governing (1) contracts not in writing (and open accounts) under Ark. Stat. Ann. § 37-206 (Repl. 1962) and (2) promissory notes and instruments (contracts) in writing under § 37-209. Under appellee’s theory, § 37-209 applies instead of § 37-245 because appellant signed a written agreement to pay for the medical services rendered. It does so, appellee argues, because both § 37-209 and § 37-245 arguably apply under these circumstances, so the court must resolve the conflict by employing the statute with the longest limitation. Using this same logic, § 37-206, Arkansas’s three-year general limitation statute, would apply in actions for medical service charges when no written contract (or open account) was involved — again because it has the longer period of limitation. Obviously, to accept such a construction of these two statutes would render the General Assembly’s special enactment of § 37-245 meaningless since § 37-245 could never apply. Thus, to give § 37-245 the effect intended by the General Assembly, we reach the plain and simple conclusion that it intended § 37-245 to cover all actions brought to recover charges for medical services.

Appellee further contends that § 37-245 is inapplicable since it applies to a medical service provider and the Baptist Medical Center “does not provide medical services as such.” Appellee offers no proof that the Baptist Medical Center is not a medical services provider, and, in fact, what evidence appellee did present runs counter to its contention. Appellee sued appellant on her debt which admittedly resulted from “services rendered by the hospital.” Appellee attached to its complaint an itemized account that listed each service rendered and the charge for that service. Those services included neurological exams, x-rays, laboratory tests and medication. Under the circumstances presented here, we are unaware of any reason why the Baptist Medical Center should not be designated a medical service provider under the terms of § 37-245. Appellee fails to argue any legal authority to show the Baptist Medical Center is not a medical service provider, and because the record clearly demonstrates otherwise, we conclude it is. We believe § 37-245 clearly is applicable to the situation before us.

Lastly, we consider appellee’s argument that § 37-245 violates the equal protection clause because it treats physicians and other medical service providers differently than other creditors who enjoy a longer statute of limitations. Such legislative action creating different statutory periods within which actions must be commenced has been upheld as constitutional by this court. See Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976); Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970). In Owen, we said the vital question is one of reasonableness, and the courts may not strike down a statute of limitations unless the period before the bar becomes effective is so short that it amounts to a virtual denial of the right itself or it can be said that the legislature has committed palpable error. Adhering to this test, we hold the limitation period in § 37-245 is both reasonable and constitutional.

Because we conclude the trial court should have applied § 37-245 as a bar to appellee’s action against appellant, we reverse and dismiss.

Hickman, J., dissents.

       Act 638 of 1984, Ark. Stat. Ann. § 37-245, enacted on March 22, 1983, provided for an eighteen-month statute of limitations. Act 894 of 1985 amended § 37-245, and provided a two-year statute of limitations to recover charges for medical services performed or provided after March 31, 1985.


author: Per Curiam.

text:
    Bobby Ray FRETWELL v. STATE of Arkansas
    CR 85-208
    728 S.W.2d 180
    Supreme Court of Arkansas
    Opinion delivered April 27, 1987

      Richard R. Medlock, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller and Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Bobby Ray Fretwell was found guilty of capital felony murder and sentenced to death. We affirmed. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). Petitioner now seeks an evidentiary hearing in circuit court pursuant to Criminal Procedure Rule 37 on the ground that he was not afforded effective assistance of counsel in either the guilt or penalty phases of his bifurcated trial.

Petitioner initially argues that counsel was ineffective in the sentencing phase in that he failed to object to the submission to the jury of “pecuniary gain” as an aggravating circumstance. Petitioner contends that since he was 'accused of aggravated robbery as the underlying felony to capital murder, the aggravating circumstance that the crime was committed for pecuniary gain duplicated an element of the offense of capital murder.

We do not find that counsel was ineffective for failing to assert the issue. At the time petitioner was tried, the question had not been raised in this court. An attorney is not ineffective for failing to raise every novel issue which might conceivably be raised.

Petitioner also contends that counsel should have moved to preclude submission to the jury of the aggravating circumstance that the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody. As the jury did not find that the aggravating circumstance existed, petitioner could have suffered no prejudice from counsel’s failure to object to the submission of the aggravating circumstance.

Petitioner alleges that counsel in his opening statement irrevocably committed him to the improvident strategy of admitting to the jury that he was guilty of shooting the victim during the robbery and relying on the jury’s leniency to avoid the death penalty. Petitioner asserts that the tactic went beyond the bounds of ordinary trial strategy and virtually guaranteed a death sentence.

While another attorney may well have taken another course, trial strategy, even if it proves unsuccessful, is a matter of professional judgment. We have consistently held that it is inappropriate to grant an evidentiary hearing on an allegation of ineffective assistance of counsel related only to matters ordinarily within the realm of counsel’s judgment. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).

Douglas Stevens, a psychologist, was appointed at petitioner’s request to assist in the preparation of his defense. Dr. Stevens testified at trial but was not available to testify at a pretrial hearing on the admissibility of petitioner’s confession. Petitioner’s attorney moved for a continuance until Stevens could appear for the hearing but the motion was denied. Petitioner contends that counsel was ineffective because he failed to prepare for the hearing and secure Dr. Stevens’ presence.

The State presented evidence from the officers who took petitioner’s confession and from a forensic psychologist and a psychiatrist, both of whom had examined petitioner at the Arkansas State Hospital. The officers testified that petitioner had been advised of his constitutional rights, no promises or threats had been made to induce the confession and that petitioner stated he understood his rights. Petitioner conceded that he said he understood his right but maintained that he had not actually understood them. After hearing the testimony, the court found the confession admissible but noted that its credibility could be attacked at trial.

To prevail on an allegation of ineffective assistance of counsel, the petitioner must meet the criteria set out in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the court held that the benchmark for judging any claim of ineffectiveness is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. A petitioner must not only show that counsel made an error so serious that he was not functioning as the “counsel” guaranteed by the sixth amendment, but he must also demonstrate that the error resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Even if counsel’s conduct is shown to be professionally unreasonable, the judgment must stand, unless the petitioner demonstrates that the error had a prejudicial effect on the actual outcome of the trial. A reasonable probability that but for counsel’s conduct the result of the trial would have been different is a probability sufficient to undermine confidence in the outcome. Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985). While petitioner alleges that Dr. Stevens’ testimony was of singular importance, he does not cite any specific information that would lead to the conclusion that counsel’s failure to secure Dr. Stevens’ testimony at the pretrial hearing had a prejudicial effect on the proceedings sufficient to undermine confidence in the outcome of the trial. The general claim that Dr. Stevens would have told the court that petitioner was susceptible to coercion is not persuasive.

The jury was instructed at the close of the guilt phase of the bifurcated trial on both capital murder and murder in the first degree. At the request of counsel for the petitioner, the instruction on first degree murder specified that to sustain the charge the jury would have to find that the murder occurred in the course of an aggravated robbery or burglary. Counsel said that the word “aggravated” should be included since the State had charged him with aggravated robbery. Petitioner argues that the insertion of the word “aggravated” rendered the instructions for capital murder and first degree murder virtually identical. He further argues that counsel was wrong to also request that the words “the State has charged the defendant with the offense of murder in the first degree” be omitted from the beginning of the instruction on first degree murder. He alleges that the omission of the words negated the instruction on first degree murder as a lesser included offense to capital murder.

We cannot conclude from the allegations that counsel was ineffective within the guidelines of Strickland v. Washington. The jury was instructed that the offense of murder in the first degree was a lesser included offense of capital murder and that the jury could find the accused guilty of either capital murder or the lesser included offense. Except for the changes suggested by counsel, the instructions conformed to the Arkansas Model Criminal Instructions. Petitioner has not shown that the instructions did not adequately inform the jury of the law and its choices under the law.

As his final allegation of ineffective assistance of counsel, petitioner notes that only he and Dr. Stevens testified for the defense in the penalty phase of the trial. He contends that his parents, aunt and grandmother were all present and could have testified to a “tumultuous family background.” He also states that he was not aware that he would be called as a witness in either the guilt or penalty phases until after the trial began.

The accused is not entitled to have every possible witness testify. See Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). Although petitioner states that family members were available to testify and he states that he was not aware that he would take the stand until after the trial began, he does not state what the family members’ testimony would have been or how his testimony would have been different if he had known in advance that he would be called to testify. When a petitioner fails to provide a summary of the testimony which could have been given and does not explain why the testimony was important, there is no basis for a finding that counsel was ineffective.

Petitioner concludes the petition with a challenge to the sufficiency of the evidence to support the jury’s finding that there were no mitigating circumstances. The argument is not cognizable under Rule 37. An attack on the weight and sufficiency of the evidence is a direct challenge to the judgment, and, as such, is not proper under our postconviction rule. The rule affords a remedy when the sentence in the case was imposed in violation of the Constitution of the United States or this State or is otherwise subject to collateral attack. Pitcock v. State, 279 Ark. 174, 649 S.W.2d 393 (1983). A direct attack on the evidence must be made in the trial court and on the record on direct appeal. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983).

Petition denied.


text:
    Harless Dale MAULDING v. STATE of Arkansas
    CR 87-54
    727 S.W.2d 855
    Supreme Court of Arkansas
    Opinion delivered April 27, 1987

      Chet Dunlap, for appellant.
    No response.
   Per Curiam.

This motion to proceed in forma pauperis is accompanied by appellant’s affidavit pursuant to Rule 28 of the Rules of the Supreme Court and the Court of Appeals. The affidavit, dated March 2, 1987, reflects no assets or income. However, a partial record filed in connection with the appeal contains an order of the trial court dated March 5,1987 reciting that a hearing was held on February 27,1987 on appellant’s oral motion to proceed in forma pauperis and was denied upon a finding that the appellant is not indigent and has funds available to him. Appellant’s motion in this court makes no reference to the order of the trial court, nor presents any record or argument demonstrating where the trial court was wrong. Puckett v. Puckett, 289 Ark. 67, 709 S.W.2d 82 (1986). Accordingly, the motion is denied.

Purtle, J., and Newbern, J., would grant.


author: Jack Holt, Jr., Chief Justice.

text:
    Jerry Lee SUTHERLAND v. STATE of Arkansas
    CR 86-177
    728 S.W.2d 496
    Supreme Court of Arkansas
    Opinion delivered May 4, 1987
    [Rehearing denied June 8, 1987.]

      William R. Simpson, Jr., Public Defender, Jerry Sailings, Deputy Public Defender, by: Steff Padilla, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

At issue in this case is the admissibility of a statement made by appellant, Jerry Lee Sutherland. The statement concerned a burglary and was made while Sutherland was incarcerated on a drug charge and without benefit of counsel, even though an attorney had been appointed for Sutherland with reference to the drug charge.The trial court ruled the statement was admissible. Because of a deficient abstract, we are not able to reach this issue on appeal. Accordingly, the judgment of the trial court is affirmed.

The facts, as revealed by the abstract, are as follows. While investigating a gas station burglary, the police interviewed Sutherland. He denied any involvement and the police searched his house and his car. One of the officers found some drugs in Sutherland’s house and arrested him for possession of a controlled substance with intent to deliver. Sutherland was incarcerated on the drug charge, arraigned, and appointed an attorney. While still incarcerated on the drug charge, police interrogated him about the burglary. Sutherland was advised of his rights, signed a waiver form, and indicated he did not want an attorney. He then made the statement described in appellant’s brief as “inculpatory.”

At an omnibus hearing on the burglary charge, Sutherland’s attorney learned for the first time that another attorney had been appointed to represent his client on the drug charge before the “inculpatory” statement was taken. In light of this information, the attorney made an oral motion to suppress the statement. The trial judge questioned Sutherland, who admitted that he did not ask for an attorney before the interrogation, although he knew he had a right to one. The judge ruled the statement was admissible.

Sutherland argues on appeal that his statement was inadmissible because it was taken in violation of his sixth amendment right to counsel. There is, however, an obstacle to our ability to review Sutherland’s contention. There is no abstract of Sutherland’s statement. For this reason, we do not know if it was “inculpatory”. The record on appeal is confined to that which is abstracted. Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982). Without knowing the contents of the statement, this court cannot assess the impact its admission had on Sutherland’s trial, nor can we determine whether prejudice resulted. We have held that when an error is alleged, prejudice must be shown, since we do not reverse for harmless error. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984).

In Richardson v. State, 283 Ark. 82, 671 S.W.2d 164 (1984), the same problem arose when the appellant challenged the admission of custodial statements and the statements were not abstracted as required by Sup. Ct. R. 9. We stated in clear terms:

Whether the nature of the statements requires reversal cannot be determined, as none of the three statements is abstracted and their admission may have been harmless. At least we are not willing to presume that the statements are prejudicial when their content is not divulged and we have no way of knowing whether they are incriminating. Rule 9(d) of the Rules of the Supreme Court provides that appellant’s abstract should include “such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.” While the rule uses the word “only”, that cannot excuse the total omission of exhibits or other material, the substance of which is essential to a determination of whether appellant’s argument has merit, and warrants a reversal of the judgment.

In a supplemental opinion issued when rehearing was granted, the court in Richardson decided that, while the statements were not abstracted, the court could determine the substance of two of them from other abstracted testimony. Accordingly, in the supplemental opinion, the court held that the statements should have been suppressed. Here, we cannot determine the substance of the statement from the abstracted testimony contained in the briefs. Accordingly, in light of our requirement that an error must be prejudicial before we will reverse a trial court’s holding, the omission of Sutherland’s statement from the transcript prevents our review of the issue raised in this case. We have no choice but to affirm the trial court’s holding.

Affirmed.


author: John I. Purtle, Justice. Tom Glaze, Justice,

text:
    Ruby BARR, et al. v. Albert W. EASON
    86-193
    728 S.W.2d 183
    Supreme Court of Arkansas
    Opinion delivered May 4, 1987
    [Rehearing denied June 8, 1987.]

      Williams & Kemp, for appellant.

      James H. Pilkinton, Jr., for appellee.
   John I. Purtle, Justice.

This is an appeal from a decree holding that the appellee was the owner of the surface rights of land in the S Vi of the SE Vi of Section 6, Township 20 South, Range 27 West, Miller County, Arkansas, containing 80 acres more or less. The decree also held that the appellee was the owner of his intestate share of the mineral rights in the NW Vi of the NE Vi and the NE Vi of the NW Vi of Section 7, Township 20 South, Range 27 West, Miller County, Arkansas, containing 80 acres more or less.

On appeal the appellants argue that the court erred in vesting title to the surface rights of the Section 6 lands and the mineral rights in the Section 7 lands in the appellee. We agree with the appellants’ first point. However, we disagree with the appellants’ argument as to the ownership of the mineral interests in the Section 7 lands.

Parts of Sections 6 and 7 were once owned by S.S. Eason who died intestate prior to 1959. Since his death his heirs have been unable to agree as to the ownership of the surface and mineral rights of the land. The decedent was the father of 15 children. His first wife, Louella, bore him nine children (the “first family”), and he had six children by his second wife, Clementine (the “second family”). Prior to his death S.S. Eason deeded the lands in Section 7 to Clementine. A dispute between the first and second Eason families culminated in chancery court actions during 1944 and 1945. Decrees were entered granting all 15 children an equal interest in the mineral rights to the lands in both Sections 6 and 7. No appeal was taken from the final decree.

One area of contention between the two families concerns the ownership of the surface rights of the lands in Section 6. From the record we find that these lands were forfeited for the 1959 taxes and were sold to H.M. Mclver on November 20, 1962. Mclver was a stranger to title prior to the tax purchase. The property was conveyed by quit claim deed from Mclver and his wife to John Edward Eason on January 18,1963. The grantee was the son of S.S. Eason and the father of Albert W. Eason, the appellee herein. The appellee’s father deeded the property to the appellee on January 19,1963. There was no monetary consideration for this transfer. However, the appellee testified that he gave his father the money to redeem the property from Mclver.

We first consider the chancellor’s ruling concerning the mineral rights to the Section 7 property. This point merits little discussion. The final decree adjudicating the mineral rights was filed on December 12, 1945. The decree determined that all 15 children of S.S. Eason owned an equal interest in the mineral rights of the lands in Sections 6 and 7. There is no evidence that any of the heirs have acquired title to the mineral interests except through inheritance from S.S. Eason. The appellee’s father was one of the 15 children of S.S. Eason. We do not disturb the trial court’s determination that the appellee owns his pro rata share of the mineral interests to the lands in Sections 6 and 7, since this finding was not against the preponderance of the evidence.

We next consider the ownership of the surface rights of Section 6. There is no dispute that the appellee’s father was a cotenant with the other children of S.S. Eason. Neither is it disputed that Mclver was a stranger to the title when he purchased the land at the tax sale. Less than two months after purchase at the tax sale, Mclver deeded the land to the appellee’s father. The testimony reveals that appellee’s father deeded the property to the appellee on January 19,1963, one day after John Edward Eason received the deed from the Mclvers.

The appellee claimed the surface rights to the Section 6 property by both deed and adverse possession. We first discuss the claim under the tax deed. The general rule is that a person who is in possession and receiving benefits from the property cannot acquire title by permitting the property to sell for taxes and then buying it at a tax sale. Zimmerman v. Franklin County Bank, 194 Ark. 554, 105 S.W.2d 1074 (1937).

In this case of Smith v. Smith, 210 Ark. 251, 195 S.W.2d 45 (1946), we considered a similar situation. In the Smith case this Court considered the rights of the decedent, his son and grandson. The decedent, D.L. Smith, died in 1931. Several children survived. The eighty acres of land owned by D.L. Smith at the time of his death was forfeited for the 1932 taxes. The land was subsequently redeemed by Laura B. Smith, the wife of Benton Smith, a son of the decedent. In 1945 litigation concerning the title to the property arose among the children and grandchildren of the decedent. In Smith this Court, discussing the rights of the children of decedent Smith and the redemption of the land at the tax sale, stated:

We think however, that in the case at bar Benton, Laura, and G.L. Smith, were too intimately identified with the D.L. Smith estate to make personal purchases in the manner shown. Redemption by one tenant in common or one of several cotenants inures to the benefit of all, in the absence of special circumstances or waiver. Effect of Spikes v. Beloate, 206 Ark. 344, 175 S.W.2d 579, is that a tenant in common cannot strengthen his interest by bidding in the entire property at a tax sale, or by purchasing it from a stranger who has bought at such sale. These acts amount to no more than redemption. This confers no right upon the purchaser except to justify a demand that contribution be made by other tenants.

We next consider the appellant’s claim of adverse possession. This Court expounded on the rights of heirs and cotenants in a similar situation in the case of Zackery v. Warmack, 213 Ark. 808, 212 S.W.2d 706 (1948). The mother of Zackery died intestate in 1919. At the time of her death she owned the 40 acres of land. Her heirs were her son, John Zackery, the appellant, and his four siblings. The taxes for 1929 and 1930 became delinquent, and Zackery purchased the land at a tax sale. He paid taxes thereafter until 1945, the last year taxes were paid prior to the commencement of the suit.

Warmack filed suit claiming ownership in the same land that Zackery claimed. Zackery filed an answer and cross-complaint wherein he claimed full title to the property based upon the tax deed and adverse possession. The trial court found the tax sale void but concluded that the deed operated as color of title. ■ This Court held that the redemption for the tax forfeiture inured to the benefit of all relatives and tenants in common. We affirmed the trial court’s holding permitting Zackery to retain proceeds of timber sales as reimbursement for taxes paid on the lands. The taxes in the Zackery case were paid in the name of the decedent from 1919 until 1929. After the purchase at the tax sale Zackery paid the taxes in his own name. The Zackery opinion went on to state:

The reason that the possession of one tenant in common is prima facie the possession of all, and that the sole enjoyment of the rents and profits by him does not necessarily amount to a disseizin, is because his acts are susceptible of explanation consistently with the true title. In order, therefore, for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such notorious acts of an unequivocal character that notice may be presumed.

The appellee in the present case was never in actual physical possession of the land. There has never been any kind of fence, house or other structure on the section 6 land here in dispute. Appellee sold the timber in July of 1978 and later planted most of it in fingerling pine. The property was neither fenced or marked to indicate the boundaries. Appellee was in the armed forces when the deed between Mclver and his father was executed. He has lived out of state during the entire time in question. In a letter to Ruby Barr, dated August 27, 1983, appellee stated his father deeded the land to him “that the land might be more easily handled.” He further stated: “as the years went along and as I continued to pay taxes, and with all apparent opportunities to settle the dispute which has been going on now for around 50 years. . .. ” The letter never expressed the opinion that he was the sole owner of the property. (A new oil well had just been finished on or near some of the land formerly owned by S.S. Eason, appellee’s grandfather.)

The appellee testified that he did not know if the other heirs knew that he claimed the property in his own name. He relies on the deed from his father as color of title. Even if the deed was color of title, it did not ripen into ownership by adverse possession. Ruby Barr is the only heir he claimed to have notified of his adverse claim. Appellee apparently had some clearing done at the time he had the young trees planted. There is no testimony that either the sale of the timber or the clearing was performed more than seven years prior to the suit. Nothing had been done previous to the sale of the timber that could be deemed notice to the other heirs that someone was claiming adversely to them.

This case is factually quite similar to McGuire v. Wallis, 231 Ark. 506, 330 S.W.2d 714 (1960). Wallis died in 1937 and was survived by a widow and eight adult children. Allie, one of the children, took possession of part of his father’s land and held it until his death in 1945. Thereafter Clovis Wallis, son of Allie, took possession and claimed it until suit was filed in 1948. Clovis had been in actual possession since his father’s death. The trial court found in favor of Clovis’ adverse claim and this Court reversed. The Court treated the grandson (Clovis) as a cotenant when it stated: “It must be remembered at the outset that the possession of one tenant in common is presumed to be the possession of all and, further, that in view of the family relation stronger evidence of adverse possession is required in this case than in one where no such relation exists.”

The dissent relies on Watkins v. Johnson, 237 Ark. 184, 372 S.W.2d 243 (1963) as controlling in this case. In Watkins a cotenant sold to a “stranger” (actually the son of the seller) who entered into exclusive possession under the deed. The lands were and continued to be fenced, with part in crops and part in pasture. This is not the case here, because the appellee did not enter into exclusive possession. Watkins is sound law, but has no application here.

Since color of title and payment of taxes alone are insufficient to ripen into ownership by adverse possession, the appellee never acquired title adverse to the other heirs. Therefore, the trial court decree is reversed as to the section 6 land. The decree is affirmed as to the section 7 land.

Affirmed in part, reversed in part and remanded.

Holt, C.J., and Hays and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. I dissent from that part of the majority opinion that reverses the trial court’s decree quieting title to the surface rights of Section 6 in appellee, Albert W. Eason.

The majority cites several cases which I simply feel are not applicable to the situation before us. More importantly, however, I believe the majority is reversing the chancellor when the record clearly supports the holding he reached. Before analyzing the cases relied on by the majority, I will discuss first those relevant facts that I believe support the trial court’s holding that title to Section 6 should be quieted in appellee, Albert Eason, because he is record title owner of it and held it adversely under color of title.

The property in dispute, Section 6, was originally owned by S. S. Eason, who died leaving fifteen heirs. Those heirs included Albert’s father, John. The other heirs are appellants in this appeal. The taxes on Section 6 were delinquent in 1959 and in November 1962, the property was sold to H. M. Mclver, an admitted stranger to the title. Albert subsequently paid Mclver $250.00 for the property, but requested Mclver deed it to his father, John, which was done on January 18,1963. The next day, January 19,1963, John deeded the property to Albert. John died later that same year.

After having been deeded the Section 6 property, Albert was assessed taxes on it and he commenced paying them in 1963; he did so annually up to the time he brought this quiet title action in 1982. Albert said that every time he contacted one of the appellants and this property was mentioned, he referred to the fact that his father and mother had deeded him this 80-acre tract. While two of the appellants denied any knowledge that Albert had claimed the property, Albert offered proof that belied such lack of knowledge. For example, appellant Ruby Barr testified Albert had never notified her that he claimed title to Section 6, but Albert undisputably refunded tax monies to Ruby’s husband, Sherman, for taxes the Barrs mistakenly paid on Section 6 for the years 1963 and 1972. Albert first reimbursed the Barrs in November 1964, for the 1963 taxes, and then reimbursed them again in October 1973, for the 1972 taxes. Another instance reflecting appellants’ knowledge that Albert was claiming Section 6 occurred when Albert was farming timber on the property and had difficulty in locating a buyer. He said J. B. Eason, one of the appellants, had informed him of a man who would be willing to buy the timber, and when telling Albert this, Albert said J. B. claimed no interest in the timber but was merely acting as a friend. That testimony was not rebutted. In fact, J. D. Eason’s wife, Myrtis, conceded at the trial below that her husband had told her timber had been cut on Section 6—an admission which tended to corroborate (or at least is consistent with) Albert’s testimony concerning his conversation with J. B.

Finally, there is no dispute that the acreage in question was unimproved and unenclosed. John Dobbins, a U.S.D.A. Soil Conservation Service employee, testified the property was mostly culled hardwood with scattered pines and was good for tree farming. Dobbins said that Albert had made substantial improvements to the land which increased its value about $100.00 to $150.00 per acre.

Based upon the foregoing evidence, the chancellor was justified in finding Albert had acquired title to Section 6. See Ark. Stat. Ann. § 37-102 (Repl. 1962) (person who holds unimproved and unenclosed property under color of title and pays its taxes for at least seven years is deemed to be in possession); see also Ark. Stat. Ann. § 37-103 (Repl. 1962). The majority court asserts the chancellor was wrong, and, in support of its position, relies on cases I feel are not controlling or applicable to the situation posed here.

First, the majority cites Zimmerman v. Franklin County Bank, 194 Ark. 554, 105 S.W.2d 1074 (1937) for the general rule that a person who is in possession and receiving benefits from the property cannot acquire title by permitting the property to sell for taxes and then buying it at a tax sale. Here, Albert Eason was not in possession of Section 6, nor was he receiving benefits from it at the time the property went into tax default and was sold to Mclver. Neither was he in possession nor was he receiving benefits when he paid Mclver for the property, and requested Mclver to convey title to Albert’s father, John. In addition, the record in no way reflects that John possessed or received any benefits from Section 6 either before or during this time of tax sale or when he received title from Mclver. The rule in Zimmerman simply does not apply to the facts in this case.

Even if we were to stretch the rule, so-to-speak, and infer from the facts that John enjoyed some benefit from the property at the time it was sold for taxes and redeemed in his name, the most that situation would pose is whether these transactions or conveyances involved fraud. For example, in Lewis v. Fidelity Savings & Trust Co., 207 Ark. 433, 181 S.W.2d 22 (1944), this court, quoting from Renn v. Renn, 207 Ark. 147, 179 S.W.2d 657 (1944), said: “Where property is allowed to forfeit for taxes, and then some member of the family (or other confederate) acquires a deed from the state or taxing agency, equity will examine the transaction to see if it was a fraudulent conveyance; and upon ascertaining such to be the fact, then the purchaser will be held a trustee, or the entire transaction will be held a redemption by the original owner.” Here, the trial judge made no mention of fraud, not surprisingly so, because no one alleged or even suggested fraud when this cause was tried below. In sum, I must reach the result, based upon the record and facts before us, that the redemption rule related in Zimmerman cannot be used to defeat Albert Eason’s claim to Section 6.

Next, the majority cites Smith v. Smith, 210 Ark. 251, 195 S.W.2d 45 (1946) and the rule that a redemption by one tenant in common or one of several cotenants inures to the benefit of all, in the absence of special circumstances or waiver. That rule is not applicable here either because Albert was not a cotenant or tenant in common. Of course, John, Albert’s father, was a cotenant of the appellants. To again summarize the evidence, McIver purchased Section 6 at the tax sale, and later deeded it to John, a cotenant of appellants; John, a day after acquiring title to the property, then deeded it to Albert, who was not a cotenant, but the son of one. There is no need to reiterate what occurred after Albert obtained record title to the property except to say he paid its taxes for twenty-two years, improved and farmed it and apprised some of the appellants, at least, that his father and mother conveyed the property to him and he made claim to it. Based on this evidence, the trial judge, apparently resolving the doubts or credibility issues in Albert’s favor, quieted title in him to Section 6. Again, appellants alleged no fraud on John’s or Albert’s behalf and the trial judge found none.

Finally, the majority cites McGuire v. Wallis, 231 Ark. 506, 330 S.W.2d 714 (1960) for the point that this court has on one occasion, at least, treated the son of a cotenant-heir as if he, too, were a cotenant. That being so, the majority says the rule that “the possession of one tenant in common is presumed to be the possession of all” is applicable and that Albert merely held or possessed Section 6 for all heirs, viz., the appellants. McGuire, of course, did not involve unimproved property or § 37-102, supra; but, more importantly, its holding turned on whether the son (Clovis) or his father (Allie—a cotenant) held the subject property adversely to the other heirs-cotenants. The McGuire court, in its review of the record, found no proof of any acts so as to charge the other heirs with knowledge of Clovis’s (or Allie’s) adverse claim. I submit that, clearly, is not true in the instant case, and the evidence I set forth earlier supports the conclusion that the appellants here did have knowledge of Albert’s claim.

Another case, again not involving unimproved property or § 37-102, is Watkins v. Johnson, 237 Ark. 184, 372 S.W.2d 243 (1963), wherein this court correctly considered the situation where the son of a cotenant went into possession of disputed property. There, this court alluded to a long line of cases where we held when a cotenant executes a deed to a stranger to the title, describing the entire land, and such grantee enters into exclusive possession under the deed, then such deed constitutes color of title, and such entry commences the running of limitation in favor of the grantor and against all the other cotenants of the grantor. See Landman v. Fincher, 196 Ark. 609, 119 S.W.2d 521 (1938) and Parsons v. Sharpe, 102 Ark. 611, 145 S.W. 537 (1912). The Watkins court determined W. H. Johnson was a cotenant with the heirs of Lewis Watkins but that Johnson sold the parties’ property in its entirety to his son, A. W. Johnson, who took possession of it and paid taxes on it. The court held that even though A. W. Johnson was a first cousin of the Watkins children, nevertheless A. W. Johnson was a “stranger to the title” because he was not a privy of the Watkins heirs. Consistent with the holding in Watkins, Albert, in the case at hand, clearly was a stranger to the title when his father conveyed all of the Section 6 property to him.

In conclusion, the majority indicates that Albert said that he did not know if the heirs (appellants) knew he claimed the property and that Ruby Barr was the only heir he claimed to have notified of his adverse claim. Actually, Albert was steadfast throughout his testimony that he had made known to appellants that he claimed ownership to the property. After having said so earlier in his testimony, he was again asked, “Is there any doubt in your mind that the members of the second family (appellants) knew that you claimed ownership of that 80 (acres)?” Albert responded, “I don’t think so. I don’t see how it could be, but I can’t answer the question. You will have to ask them, sir.” Obviously, the chancellor believed Albert’s testimony that appellants knew he claimed ownership and evidence exists in the record for him to have inferred and found as much. It is not within this court’s province to reverse a trial judge by drawing a different inference unless the judge’s finding was clearly erroneous. On this same point, Albert testified he had contacted other heirs regarding his claim to the property, and from the evidence, it is obvious appellants Ruby and Sherman Barr and J. B. and Myrtis Eason had some knowledge of Albert’s claim. From the evidence, the chancellor had every right to infer more than Ruby Barr knew of Albert’s claim.

In my opinion, the record clearly reflects that Albert acquired record and color of title to the disputed property and appellants had chargeable knowledge that he was holding the property adversely, claiming title and paying taxes on it. At the least, I am unable to say the chancellor was clearly wrong in so finding.

Holt, C.J., and Hays, J., join in this dissent.


author: Robert H. Dudley, Justice.

text:
    Haskell Wayne SNELGROVE v. STATE of Arkansas
    CR 86-224
    728 S.W.2d 497
    Supreme Court of Arkansas
    Opinion delivered May 4, 1987

      Pruitt & Hodnett, by: Roger T. Jeremiah, for appellant.

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

Appellant, Haskell Wayne Snelgrove, was originally charged with capital murder. The information alleged that he caused the deaths of his mother and his wife in the course of the same criminal episode. As a result of plea bargaining, the capital charge was reduced to two counts of first degree murder. He entered pleas of nolo contendere and was sentenced to life imprisonment in each case. In a post-conviction proceeding, he now collaterally attacks both convictions pursuant to A.R.Cr.P. Rule 37. We affirm the trial court’s denial of relief.

Appellant contends the trial court erred in accepting his pleas of nolo contendere because there was no recitation of the allegations which formed the basis for the pleas and because the court did not require him to state personally that there was a factual basis for the pleas.

A.R.Cr.P. Rule 24.6 provides:

RULE 24.6. Determining Accuracy of Plea.
The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.

(Emphasis added.)

Compliance with Rule 24 is mandatory, but substantial compliance will suffice. McDaniel v. State, 288 Ark. 629, 708 S.W.2d 613 (1986). Further, if the factual basis is not sufficiently determined during the plea proceedings, it may be established at the Rule 37 post-conviction hearing. Davis v. State, 267 Ark. 507, 592 S.W.2d 118 (1980). Appellant is correct in stating that the following colloquy, which took place at the time of the pleas, did not establish a factual basis for his plea:

THE COURT: Is there a factual basis for the pleas, Mr. Marquette?
MR. MARQUETTE [APPELLANT’S ATTORNEY]: Yes, Sir.
THE COURT: Mr. Fields?
MR. FIELDS [PROSECUTING ATTORNEY]: Yes, Sir.

However, the deficiencies in establishing a factual basis were supplied in other responses and at the post-conviction hearing.

At the post-conviction hearing, appellant admitted that before he entered his pleas of nolo contendere, he attended an evidence suppression hearing and there heard the trial court rule on the admissibility of the following evidence:

(1) The testimony of a minister to whom appellant had confessed that he was a beast-man who ate raw flesh and drank blood, and that demons and devils had told him to kill his mother and his wife;
(2) A letter written by his mother which expressed fear of appellant;
(3) Evidence which showed the victims were stabbed to death;
(4) A pocket knife, which was found in appellant’s possession, had human blood on it, and the size of the blade was consistent with the width and depth of the stab wounds in the victims;
(5) A medical report which established that semen, which could have been appellant’s, was found in his mother; and
(6) Evidence about prior convictions for rape which involved two women, one of whom was made to lie in the bathtub filled with gasoline, while appellant forced the other to have sexual intercourse by threatening to throw a lighted match into the gasoline.

The trial judge reserved ruling on the mother’s letter and the prior rape convictions, but refused to suppress the other evidence. Obviously, in allowing the appellant to enter the pleas, the trial court was aware of these facts, as was appellant. The attorneys who represented appellant testified at the Rule 37 hearing that they explained the nature of the crimes to appellant, discussed all of the evidence with him, gave him a scenario of how they thought the trial would proceed, and discussed the possible sentences.

At the plea hearing the trial court determined that:

(1) Appellant knew the nature of the charges;
(2) Appellant knew the possible sentences;
(3) Appellant understood his nolo contendere pleas;
(4) Appellant’s attorneys had explained the plea statement to him four times;
(5) Appellant understood he was giving up his right to appeal, to be tried by a jury, to cross-examine witnesses and to testify;
(6) Appellant understood he was to receive two life sentences, and;
(7) Appellant was not coerced into making the pleas.

Standard 14-1.6 of the American Bar Association’s Standards for Criminal Justice defines the requirement of a factual basis as follows: “The requirement of a factual basis refers to the presence of sufficient evidence, adduced at the taking of a guilty plea or plea of nolo contendere, upon which a judge may fairly conclude that a defendant could be convicted if the defendant elected to stand trial.”

The record from the plea hearing and the post-conviction hearing establish that there was a factual basis for the pleas and there was sufficient evidence from which the trial court could conclude that appellant would be found guilty if he elected to proceed to trial.

Next, appellant argues that he did not personally answer the court’s inquiry about whether there was a factual basis for the pleas, but instead his attorney answered and, therefore, this case should be reversed. He cites McDaniel v. State, 288 Ark. 629, 708 S.W.2d 613 (1986), as authority for his argument. McDaniel holds that, in a plea of guilty, the trial court shall ask the accused personally if he committed the act with which he is charged and whether he is pleading guilty because he is guilty. We do not consider the issue in this case because it was not raised in the petition for post-conviction relief. Rule 37.2(b) and (e) provide that, in order to be considered, an issue must be raised in the original or amended petition, and an issue is waived if it is not raised in the petition. We have long upheld this provision. Wiser v. State, 256 Ark. 921, 511 S.W.2d 178 (1974). Even though we do not consider the issue as it applies to this appellant, it is a subject of first impression, and one on which we have never given the trial courts any direction. We take this opportunity to notify the trial bench that, from this time forward, the McDaniel rationale will be applicable to pleas of nolo contendere. Contrary to the Federal Rules of Criminal Procedure, our Rules of Criminal Procedure require a factual basis for the nolo contendere plea as well as the plea of guilty. Since the sentencing power of the court is not reduced upon the entry of the nolo plea, it is equally important to make certain that the accused actually be guilty of the offense to which the nolo plea is offered. While the insistence upon a factual basis may make the nolo plea less attractive because a disclosure of the accused’s misdeeds will be made public, this is a reasonable price to pay for the assurance that the accused is not innocent of the charge for some reason. Further, it will eliminate difficulty at post-conviction proceedings in determining the accuracy of the plea, and it will be useful to the trial court in determining the sentence. The form of the personal question can be concise. After the prosecutor makes a proffer of the facts which he would prove, the judge can ask the accused: “Are these the facts which you do not contest?”

Appellant next argues that he did not understand the sentence he was to receive and, therefore, his plea was not voluntarily, knowingly, and intelligently entered. The argument is without merit.

A.R.Cr.P. Rule 24.5 provides:

The court shall not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. The court shall determine whether the tendered plea is the result of a plea agreement. If it is, the court shall require that the agreement be stated. The court shall also address the defendant personally and determine whether any force or threats, or any promises apart from a plea agreement, were used to induce the plea.

The following colloquy took place at the plea proceedings:

THE COURT: Is this plea of nolo contendere based upon a plea agreement, do you know what you are to receive here, today?
MARQUETTE [APPELLANT’S ATTORNEY/: The judge wants to know if there has been some type of agreement between the prosecuting attorney’s office and us?
APPELLANT. Yes, Sir.
THE COURT. What is that agreement, what are you supposed to receive?
APPELLANT. A sentence of a life sentence.
THE COURT. Two of them?
APPELLANT: One that I know of.
FIELDS [PROSECUTING ATTORNEY]: Two together, right? There will be two as one.
MARQUETTE [APPELLANT’S ATTORNEY]: There will be two sentences, they will run concurrently or at the same time; they will not be consecutive, one after the other, they will run at the same time.
THE COURT: Now, do you understand what you’re supposed to receive?
APPELLANT: Yes, Sir.
THE COURT: And what is it?
APPELLANT: Life sentence.
THE COURT: How many?
APPELLANT: It could go two.
THE COURT: Two?
APPELLANT: Two?
THE COURT: I need it to be a little more definite.
APPELLANT-. Two life sentences.
THE COURT-. Do you understand that the Court doesn’t have to go along with that agreement if it doesn’t want to?
APPELLANT-. Yes, Sir, I understand.
THE COURT-. Was any force, threats, promises, coercion of any kind used against you to get you to enter these pleas?
APPELLANT: No Sir, there wasn’t.

As is readily seen, the appellant apparently did not initially understand the intricacies of how the agreement would result in him serving the equivalent of one life sentence by allowing him to serve two sentences concurrently. It is clear, however, that the trial court took pains to make certain that, before the plea proceedings went further, appellant not only understood the terms of the agreement, but that he also understood that the court was not bound by the agreement. Further, the court did order that the two life sentences run concurrently. Appellant admits that he has not suffered any hardship by serving two life sentences concurrently, as opposed to one. He argues, however, that his initial misunderstanding of the terms was so obvious that the plea became involuntary and should have been rejected. He cites no cases in support of his argument, and we have found none. The requirements of A.R.Cr.P. Rule 24.5 were met.

Appellant’s final contention is that he received ineffective assistance of counsel because he was given inaccurate parole information. Appellant testified at the rule 37 hearing that his two attorneys left him with the impression that he would be paroled in two and one-half to three years. The attorneys, however, testified that they never told appellant that he would be paroled after a certain number of years. One of the attorneys explained: “We never specifically told him when he will be able to get out on parole. I think we told him that if his sentence were reduced to a number of years, there’s a possibility that he would be eligible for parole in approximately eight to nine years.”

The trial court is in the best position to resolve any conflicts in testimony. As we stated in Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986):

Here, the trial court was basically presented with a swearing match: appellant claimed his attorney erroneously advised him that he would be paroled within 4 or 5 years and, based on that, he entered his guilty plea. The attorney claimed [otherwise]. The trial court evidently believed the attorney. Conflicts in testimony are for the trial judge to resolve, and he is not required to believe any witness’s testimony, especially the testimony of the accused since he has the most interest in the outcome of the proceedings. . . . We cannot say his findings are against a preponderance of the evidence.

Affirmed.

Hickman, J., concurs.


author: Steele Hays, Justice.

text:
    Carroll GILBERT v. GILBERT TIMBER COMPANY, et al.
    86-247
    728 S.W.2d 507
    Supreme Court of Arkansas
    Opinion delivered May 4, 1987

      Art Anderson, for appellant.

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, for appellee.
   Steele Hays, Justice.

In this appeal of a workers’ compensation case the Court of Appeals affirmed the Workers’ Compensation Commission and we granted a petition for review of that decision.

Appellant Carroll Gilbert is the owner of Gilbert Timber Company and was injured when struck by a falling tree limb. At the time of the injury a workers’ compensation policy issued by CIGNA was in effect. It was stipulated that Gilbert’s business was a sole proprietorship.

CIGNA contends that Gilbert was not covered because he failed to comply with Ark. Stat. Ann. § 81-1302(b) (Supp. 1985), which provides, in pertinent part:

The term “employee” shall also include a sole proprietor or a partner who devotes full time to the proprietorship or partnership and who elects to be included in the definition of “employee” by filing written notice thereof with the Division of Worker’s Compensation.

The notice required under § 81-1302(b) is filed with the Commission on a form known as an A-18. Appellant never filed an A-18, either at the time of, or subsequent to, the issuance of the policy. However, he contends he was not required to file the form because of the following language contained in Ark. Stat. Ann. § 81-1320(a) (Supp. 1985):

Provided, however that any officer of a corporation or self-employed employer who is not a subcontractor and who owns and operates his own business may by agreement or contract exclude himself from coverage or waive his right to coverage or compensation under the Act. [Emphasis added.]

Gilbert contends the term “self-employed employer” includes sole proprietors and he would therefore be eligible under the Act unless he waived coverage. He submits there is a conflict between the two statutes and the conflict should be resolved in his favor since he is the claimant. We find no conflict between the two statutes and affirm the Court of Appeals.

There is no definition in the Workers’ Compensation Act of “self-employed employer,” but the act, its history and our case law satisfy us that as used in § 81-1320, that phrase refers to corporate officers and does not include sole proprietors.

There was no express coverage of sole proprietors or partners until the 1979 amendment of § 81-1302 quoted above. Prior to that amendment, we held that sole proprietors and partners were not covered under the Act and one could not, as a sole proprietor or partner, qualify as an employee for coverage. Corporate officers however, could qualify. Unlike officers of a corporation, sole proprietors and partners are not separate entities and are in actual possession of the powers of the employer. Brinkley Heavy Hauling Co. v. Youngman, 223 Ark. 74, 264 S.W.2d 409 (1954). We concluded in Brinkley that, “For a person to be at once an employer and an employee would manifestly involve the contradiction of liability to himself.”

The two statutory provisions at issue in this case were passed subsequent to the Brinkley decision. The amended provision of § 81-1320, quoted earlier, was passed in 1971. The emergency clause to that amendment stated:

It is hereby found that the present workers’ compensation laws provide for coverage of self-employed employers, and that clarification thereof is necessary to enable officers of a corporation to exclude themselves from coverage under workers’ compensation laws. . .

The 1979 amendment to § 81 -1302 was added to the statute with the following emergency clause:

It is hereby found and determined by the General Assembly that under the present workers’ compensation law a sole proprietor or partner is not eligible to obtain compensation coverage for himself; that the inability to obtain such coverage is creating a serious hardship of such sole proprietors and partners as well as general contractors for whom they provide services; that this Act is designed to alleviate this problem by enabling such person to obtain workers’ compensation coverage and should be given effect immediately.

Given the interpretation of the act prior to these amendments and reading the amendments together, along with the respective emergency clauses, it is clear that the term self-employed employer as used in § 81-1320 is surplusage—a synonym for corporate officers—and does not include sole proprietors and partners. Our prior interpretation of the Act in Brinkley did not find sole proprietors or partners eligible under the act and if they were to have been included within the term self-employed employers in the amendment to § 81 -1320, there would have been no reason to later amend § 81-1302 to specifically provide for their eligibility. Furthermore, the legislature specifically stated in the emergency clause to the § 81-1302 amendment, that prior to that amendment sole proprietors and partners were not covered under the act. As there was no question that Gilbert was a sole proprietor, he would not fall within the provisions of § 81-1320, but rather would be subject to the provisions of § 81-1302.

There was some confusion in the arguments by both parties as to the effect of coming within the provisions of § 81-1320, and we point out the purpose of that statute for clarification. “This section was intended to protect employees against the archaic procedure so prevalent in the early history of Workers’ Compensation Law, when unscrupulous employers were able to avoid compensation liability by the simple device and procedure of having the employee sign a contract waiving all rights to compensation in consideration of being employed.” Bryan v. Frod, Bacon & Davis, 246 Ark. 327, 438 S.W.2d 472 (1969). The amendment to this statute in 1971 allowed certain persons in executive positions to waive coverage, but the implication is clear—the statute is designed for permissive waiver of coverage by executives and it does not confer employee status on such executives automatically. Whether a corporate officer is an employee for the purposes of the act is to be determined by the nature of the work and the circumstances of each case. Fraternal Order of Eagles v. Kirby, 6 Ark. App. 198, 639 S.W.2d 529 (1982); Continental Insurance Company v. Richard, 268 Ark. 671, 596 S.W.2d 332 (Ark. App. 1980). While we have no cases on this point, it would seem that under § 81-1302, one claiming eligibility for coverage as a sole proprietor or partner, would not automatically be covered by simply electing coverage, but in a particular case would have to show that he was in fact an employee.

Having determined that Gilbert does fall within § 81-1302, the remaining question is whether filing the A-18 form with the Workers’ Compensation Commission is essential. Gilbert suggests it is not and there is some authority for this view. See, Larson, Workmen’s Compensation, Vol. 4, § 92.25. However, we do not have to reach that question because even if Gilbert had filed, and was eligible for coverage under the Act, insurance coverage was never obtained.

Gilbert had a number of insurance policies, both personal and business, that he had obtained through an independent agent, Mike Powers. Gilbert decided he needed workers’ compensation coverage and contacted him. Powers obtained coverage for Gilbert’s business with Insurance Company of North America, the predecessor in interest to CIGNA, through an assigned risk pool.

Powers testified he did not act as agent for CIGNA and had no authority to bind that company. He filled out the application form for Gilbert and signed his name to save time. In response to a question asking whether Gilbert wanted to be covered individually by workers’ compensation insurance Powers answered “no.” Powers testified he was in a hurry to get the application in and could not recall anything about checking the box or discussing coverage with Gilbert. Gilbert testified that he specifically requested that he get coverage for himself as well as his workers.

From the record before us there was no agency relationship between Powers and the insurance company. The evidence showed that the insurance carrier came from the assigned risk pool as provided by Ark. Stat. Ann. § 81-1309. In a similar case cited by appellee insurance company, we held that an agent securing coverage through an assigned risk pool, was not an agent for the carrier that was assigned coverage. Manufacturers Insurance Co. v. Hughes, 229 Ark. 503, 316 S.W.2d 827 (1958).

In that case we found a member of the assigned risk plan for automobile insurance did not take on an independent agent who obtained the coverage, as its own agent. We found language in the application and the regulations of the Insurance Commission that indicated such an agent was that of the insured. But we went on to say that this was in accord with reason and logic. “To hold otherwise would have the effect of making each licensed casualty insurance agent in the State of Arkansas, the potential general agent of every casualty company doing business in the state. How can one be a general agent for, issue a policy, or bind, a company that he has never heard of?”

On that basis, and with no evidence to the contrary, we find that CIGNA, as a member of the assigned risk pool, did not take on Powers as its agent and was not bound by anything Powers did or did not do. The insurance company therefore has no obligation to honor a claim for which it was never bound by contract for insurance coverage.

Affirmed.

Glaze, J., not participating.