text:
    NATIONAL BANK OF COMMERCE (of El Dorado, Arkansas), Guardian of the Estate (Only) of Ashley Marie Smits, a Minor, and William J. Smits Jr., Individually, and as Parent and Next Friend of Ashley Marie Smits, a Minor v. THE DOW CHEMICAL CO., Rofan Services, Inc., And Epco, Inc., of Indiana d/b/a Dowelanco, Steam Services, Inc., Adams Pest Control of North Little Rock, Inc., John Doe #1, John Doe #2, Metro Builders & Restoration Specialists, Inc., John Doe #3, and John Doe #4
    98-1148
    1 S.W.3d 443
    Supreme Court of Arkansas
    Opinion delivered October 14, 1999

      Davidson & Associates, P.A., by: Bobby D. Davidson; Bernard Whetstone; and Compton, Prewett, Thomas & Hickey, P.A., by: Robert C. Compton, for appellants.

      Wright, Lindsey & Jennings, by: Stephen R. Lancaster; Barnes & Thornburg, by: Joseph G. Eaton and William E. Padgett, for appellees The Dow Chemical Co., Rofan Services, Inc. and Epco, Inc. of Indiana.

      Barber, McCaskill, Jones & Hale, P.A., by: Michael J. Emerson, for appellee Steam Services, Inc.

      Laser, Wilson, Bufford & Watts, P.A., by: Richard N. Watts and Brian A. Brown, for appellee Adams Pest Control.

      Hankins, Hicks, Madden & Blagg, by: Stuart W. Hankins and A. Vaughn Hankins, for appellee Metro Builders & Restoration Specialists, Inc.
   Donald L. Corbin, Justice.

Appellants National Bank of Commerce, as guardian of the estate of Ashley Marie Smits, and William J. Smits Jr., individually and as Ashley’s parent and next friend, initiated this products-liability action on September 16, 1994, in the Pulaski County Circuit Court against Dow Chemical Company, a Delaware corporation; Rofan Services, Inc., a Delaware corporation and wholly owned subsidiary of Dow; Epco, Inc. of Indiana d/b/a DowElanco, an Indiana corporation; and two John-Doe defendants, manufacturers and distributors of a pesticide known as Dursban LO (collectively, the “pesticide defendants”). Appellants also sued Steam Services, Inc., a California corporation and manufacturer of a fire-reodorant product called Firefog 404. Additionally, Appellants named as defendants Adams Pest Control of North Little Rock, an Arkansas corporation; Metro Builders & Restoration Specialists, Inc., an Arkansas corporation; and two John-Doe defendants, applicators of the Dursban and Firefog products (collectively, the “applicator defendants”).

Appellants’ complaint originates from allegations that during her pregnancy, Ashley Smits’s mother was exposed to Dursban and Firefog that ultimately caused Ashley’s severe birth defects. Maria Smits, Ashley’s mother, was employed at the Eagle Bank in Sherwood, Arkansas, during the early months of 1991. Ashley was conceived on or about January 16, 1991; Maria learned that she was pregnant on February 5, 1991. Ashley was born on September 20, 1991. On February 6, 1991, Adams Pest Control made a “crack and crevice” application of a 0.5% solution of Dursban in water around the baseboards of the interior of the bank. Maria Smits worked that day until two hours after Adams sprayed the pesticide.

One week later, on February 11, 1991, an electrical fire occurred at the bank. On that same day, Metro Builders & Restoration Specialists, Inc., applied Firefog to remove the odor left by the fire. Maria Smits also worked on this day and continued to work at the bank until early April 1991. In the instant case, Appellants claimed that the pesticide defendants, Steam Services, and the applicator defendants, either singly, or in combination, proximately caused Ashley’s birth defects.

Prior to the instant suit in state court, on January 27, 1994, Appellants filed a case in federal court against the pesticide defendants and Steam Services. Notably, Appellants elected not to join the applicator defendants to ensure complete diversity in federal court. On May 19, 1996, and December 30, 1996, respectively, the federal court granted Steam Services’ and the pesticide defendants’ motions for summary judgment after excluding the opinion testimony of Appellants’ expert witnesses. In a sixty-six page opinion, the federal court dismissed Appellants’ complaint. See National Bank of Commerce v. Dow Chemical Co., 965 F. Supp. 1490 (E.D. Ark. 1996), aff'd, 133 F.3d 1132 (8th Cir. 1998). In reaching its decision, the federal district court concluded that Appellants failed to show that the proffered expert testimony had a valid scientific foundation, as required by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Specifically, the federal court excluded Appellants’ experts’ testimony because it was not based upon accepted scientific methodology for determining whether a chemical agent can cause birth defects in humans. Subsequently, in National Bank of Commerce, 133 F.3d 1132, the Eighth Circuit Court of Appeals affirmed the district court’s decision.

Following the federal court’s decision dismissing Appellants’ case against the pesticide defendants and Steam Services, the state trial court considered summary-judgment motions filed in the instant case by the pesticide defendants, Steam Services, and the applicator defendants. On June 3, 1998, after considering the motions, responses, pleadings of record, and statements of counsel, and subsequent to a hearing on May 15, 1998, the trial court granted Appellees’ motions for summary judgment and dismissed Appellants’ complaint. From that order comes the instant appeal, challenging the trial court’s findings that (1) all issues raised in the state case could have been addressed in the federal action, and (2) res judicata or collateral estoppel bars further litigation in state court against all Appellees. We find no merit in Appellants’ arguments, and we affirm the trial court’s grant of summary judgment in favor of all Appellees.

Notably, Appellants also urge this court to consider the standards of admissibility of expert testimony pursuant to Daubert, 509 U.S. 579, and to issue a detailed opinion regarding Daubert “that will offer guidance to attorneys and the lower courts of this State.” Although this appeal was originally filed in the Arkansas Court of Appeals, upon Appellants’ motion to transfer, we accepted the case to consider an issue of substantial public interest. See Ark. Sup. Ct. R. 1—2(b)(4). However, Appellants seek an advisory opinion with regard to Daubert. The state trial court never ruled on the applicability of the Daubert standards nor on the admissibility of Appellants’ expert testimony. Rather, the trial court ruled upon Appellees’ summary-judgment motions and concluded that res judicata and collateral estoppel barred Appellants’ action. Accordingly, we address the merits of the summary-judgment issue only.

I. Standard of Review

In reviewing summary-judgment cases, this court need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Further, the moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. The moving party is entided to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Ark. R. Civ. P. 56; Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 966 S.W.2d 241 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 824 S.W.2d 387 (1992). However, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Collyard v. American Home Assurance Co., 271 Ark. 228, 607 S.W.2d 666 (1980).

II. Res Judicata

Appellants’ first point on appeal contends that the trial court erred by granting summary judgment in favor of the pesticide defendants and Steam Services. In response, Appellees claim that the doctrine of res judicata mandates that we affirm the trial court’s decision. We agree. Res judicata, or claim preclusion, bars the relitigation of a subsequent suit when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involved the same claim or cause of action that was litigated or could have been litigated but was not; and (5) both suits involved the same parties or their privies. Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993).

We have also recognized that identical cases between the same parties may be pending in a federal court and a state court at the same time. See Carter v. Owens-Illinois, Inc., 261 Ark. 728, 551 S.W.2d 209 (1977). However, the “first forum to dispose of the case” enters “a judgment that is binding on the parties.” Id. at 730, 551 S.W.2d at 210. Accordingly, the federal district court’s grant of summary judgment in favor of the pesticide defendants and Steam Services, both parties in the instant action, bars relitigation in the state trial court.

Applying the factors required to establish res judicata, we first note that the district court’s entry of summary judgment constituted a final judgment on the merits, later affirmed by the Eighth Circuit Court of Appeals. An order granting summary judgment is a final adjudication on the merits that bars subsequent suits on the same cause of action. See Magness v. McEntire, 305 Ark. 503, 808 S.W.2d 783 (1991). Second, pursuant to 28 U.S.C. section 1332, the district court had proper diversity jurisdiction over Appellants’ claims. Third, the federal case was fully contested in good faith, as demonstrated by the federal district court’s and the Eighth Circuit’s review of voluminous briefs, discovery materials, and oral arguments. In fact, the district court’s opinion was over sixty-five pages.

Fourth, the federal and state complaints evidence that Appellants’ claims against Appellees are identical in both cases. Both suits alleged that Ashley’s mother’s exposure to Dursban and Firefog caused Ashley’s birth defects. Appellants contend that several fact issues remain, including the concentration of the Dursban solution and the existence of “new research.” However, the record indicates that Appellants conceded in the federal suit the concentration of Dursban applied, and that either the district court or the Eighth Circuit considered the “new research.”

In any event, AppeEees correctly note that the existence of “new research” bears no relevance to the issue of res judicata. The exceptions to res judicata are (1) fraud or coEusion in the procurement of the first judgment, and (2) lack of jurisdiction. Wells v. Arkansas Public Serv. Comm’n, 272 Ark. 481, 616 S.W.2d 718 (1981). Neither exception is alleged here, and Appellants fail to offer any convincing argument or authority in support of their position urging this court to create a third exception to res judicata, namely, “new evidence.” We do not consider assertions of error that are unsupported by convincing legal authority or argument, unless it is apparent without further research that the argument is well taken. Grayson v. Bank of Little Rock, 334 Ark. 180, 971 S.W.2d 788 (1998) (citing Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997); J&J Bonding, Inc. v. State, 330 Ark. 599, 955 S.W.2d 516 (1997)).

Moreover, the United States Supreme Court, in Daubert, specifically addressed the policy of balancing “new research” in science with the objectives of law.

Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. . . . We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.

Daubert, 509 U.S. at 597 (footnote omitted).

Finally, both the state and federal cases involved the same parties or their privies. The addition of the applicator defendants in the state suit does not bar the application of res judicata with respect to the pesticide defendants and Steam Services. In Crockett, 314 Ark. 578, 864 S.W.2d 244, this court noted that the presence of additional defendants in a subsequent suit did not prevent the application of res judicata to those defendants named in the former suit. Significantly, this court has also held that:

[A] plaintiff who deliberately selects his forum is bound by an adverse judgment therein in a second suit involving the same issues, even though defendant in the second suit was not a party, nor in privity with a party, in the first suit.

Rose v. Jacobs, 231 Ark. 286, 289, 329 S.W.2d 170, 172 (1959) (quoting 50 C.J.S. 293, § 763). In light of the foregoing, we con-elude that the trial court did not err by granting summary judgment in favor of the pesticide defendants and Steam Services.

III. Collateral Estoppel

Appellants’ second point on appeal asserts that summary judgment is inappropriate as to the applicator defendants. However, the applicator defendants suggest that the doctrine of collateral estoppel procedurally bars the suit against them. Collateral estoppel, or issue preclusion, bars the relitigation of matters directly and necessarily litigated in a previous action. Specifically, collateral estoppel requires that (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) a determination must have been essential to the judgment. Crockett, 314 Ark. 578, 864 S.W.2d 244.

Here, although Appellants named the applicator defendants as additional parties in the state suit, the causation issue before the state court and the federal court was identical. In the federal suit, Appellants litigated the issue of whether there was sufficient evidence to support a conclusion that Dursban and Firefog could have caused Ashley’s birth defects. Regardless of whether Appellants named the applicator defendants in the complaint, the causation issue before the state court remains the same. Accordingly, in the absence of a genuine issue of material fact and given the federal courts’ final judgments on the merits, we affirm the trial court’s decision granting the applicator defendants’ motions for summary judgment.

Viewing the evidence in the light most favorable to Appellants, resolving any doubts against Appellees, and finding that there remain no genuine issues as to material facts, we hold that the trial court did not err by finding that Appellees were entitled to a judgment as a matter of law.

Affirmed.

Gail Inman-Campbell and Ted Sanders, Sp.JJ., join in this opinion.

Glaze and Imber, JJ., not participating.

       Appellants originally filed suit against the pesticide defendants and Steam Services in both federal and state court. However, the state trial court dismissed the state action on March 21, 1996, pursuant to Ark. R. Civ. P. 12(b)(8). This court reversed that decision in National Bank of Commerce v. Dow Chemical Co., 327 Ark. 504, 938 S.W.2d 847 (1997), holding that Rule 12(b)(8) did not apply, and permitted the cases to proceed simultaneously in federal and state court.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    ARKANSAS STATE MEDICAL BOARD v. Scott A. SCHOEN, D.D.S., and Arkansas State Board of Dental Examiners
    98-1309
    1 S.W.3d 430
    Supreme Court of Arkansas
    Opinion delivered October 14, 1999
    [Petition for rehearing denied November 18, 1999.]

      Cearley Law Firm, P.A., by: Robert M. Cearley, Jr., for appellant.

      Friday, Eldredge & Clark, by: Diane S. Mackey, for appellee Scott A. Schoen, D.D.S.

      Mark Pryor, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen.; and Rose Law Firm: A Professional Association, by: Herbert C. Rule III and Garland J. Garrett, for appellee.

         Reporter’s note: Each appellee petitioned for rehearing.

   Robert L. Brown, Justice.

This appeal comes to us from an order of the chancery court dismissing the complaint of the appellant Arkansas State Medical Board for lack of jurisdiction on the ground that the Medical Board has an adequate remedy at law. Also pending before this court is a motion to dismiss the Medical Board’s appeal filed by appellees Scott A. Schoen, D.D.S., and Arkansas State Board of Dental Examiners on the basis that the appeal is moot due to the enactment of Act 143 of 1999. We grant the motion to dismiss the appeal as regards the Dental Board in part and deny it in part. With respect to the Medical Board’s claim against Dr. Schoen, we reverse and remand for further proceedings.

On July 22, 1997, the Medical Board sued Dr. Schoen and the Dental Board in a second amended and substituted complaint. The Medical Board alleged that the Dental Board’s regulations recognize a specialty practice of “Oral and Maxillofacial Surgery” and that the American Dental Association’s definition of this specialty practice extends the practice of dentistry well beyond the statutory definition of dentistry in Arkansas. The complaint further alleged that Dr. Schoen is performing surgical procedures which historically have been within the exclusive province of medicine and which include, among others, removal of a basal cell carcinoma from the forehead of a patient. The complaint asserts that because the Dental Board had advised Dr. Schoen that certain procedures which constitute the practice of medicine are lawful, the Dental Board has aided the unlawful practice of medicine.

The complaint asked for this relief from the chancery court:

• that it declare the complained of procedures performed by Dr. Schoen to constitute the practice of medicine and enjoin him from that practice.
• that it declare the Dental Board’s regulations relating to “Oral and Maxillofacial Surgery” to be invalid.
• that it enjoin the Dental Board from authorizing the practice of medicine as complained of in the complaint.
• that it stop the issuance of the speciality licenses in oral and maxillofacial surgery and recall the outstanding specialty licenses.

At the time this complaint was filed, the practice of dentistry was defined by statute in pertinent part as follows:

(i) Examination, diagnosis, treatment, repair, prescription, and surgery of or for any disease, disorder, deficiency, deformity, condition, lesion, injury, or pain of the human oral cavity, teeth, gingivae, and soft tissues; and
(ii) The diagnosis, the surgical and adjunctive treatment of the diseases, injuries, and defects of the human jaws and associated structures; ....

Ark. Code Ann. § 17-82-102(l)(A) (Repl. 1995). There was no reference in the definition to treatment or surgery in the maxillofacial area.

Act 143 of 1999 amended the definition of dentistry to read as follows in pertinent part:

(i) The evaluation, diagnosis, prevention, and treatment by nonsurgical, surgical or related procedures of diseases, disorders and conditions of the oral cavity, maxillofacial area and the adjacent and associated structures and their impact on the human body, but not for the purpose of treating diseases, disorders and conditions unrelated to the oral cavity, maxillofacial area and the adjacent and associated structures; .... (Emphasis added.)

Act 143 became effective July 30, 1999. Clearly, treatment and surgery in the maxillofacial area are now encompassed within the definition of dentistry.

In their joint motion to dismiss the Medical Board’s appeal for mootness in light of Act 143, the Dental Board and Dr. Schoen urge that the new definition of dentistry confirms that dentistry includes surgery in the maxillofacial area. Thus, they contend that the Medical Board’s attack on the Dental Board’s regulation authorizing a speciality practice for “Oral and Maxillofacial Surgery” and permitting maxillofacial treatment and surgery by dentists in general is moot. In short, the appellees contend that Act 143 conclusively decides this issue.

As the Dental Board and Dr. Schoen correctly underscore, this court does not decide cases that are moot, or render advisory opinions, or answer academic questions. See Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997). An issue becomes moot when a decision by this court will have no practical effect on a legal controversy. See id. See also Quinn v. Webb Wheel Products, 334 Ark. 573, 976 S.W.2d 386 (1998); Dillon v. Twin City Bank, 325 Ark. 309, 924 S.W.2d 802 (1996). In the instant case, the issue of whether Dental Board regulations can lawfully define dentistry as including the diagnosis, treatment, or surgery in the maxillofacial area has been decided by the General Assembly with Act 143. We dismiss as moot that portion of the Medical Board’s complaint dealing (1) with the definition of dentistry, and (2) with the Dental Board regulations that define dentistry as including maxillofacial treatment and surgery and the resulting speciality licenses.

There remains, however, the issue of whether Dr. Schoen with the aid of the Dental Board has engaged in the unlawful practice of medicine, including the surgical removal of a basal cell carcinoma from the forehead of a patient and other unnamed procedures. That allegation further raises the question of what forum decides the issue: chancery court pursuant to statutory authority granted under Ark. Code Ann. § 17-95-402(b) and (c) (Repl. 1995) , or the Dental Board as the administrative agency overseeing the practice of dentistry under the Administrative Procedure Act (Ark. Code Ann. §§ 25-15-201 through 25-15-214 (Repl. 1996) ).

The Medical Board vigorously contends that the Medical Practices Act decides the issue in favor of equity jurisdiction. It points us to § 17-95-402(b) and (c), which specifically authorizes the Medical Board to sue in chancery court to enjoin the unlawful practice of medicine:

(b) The courts of record of this state having general equity jurisdiction are vested with jurisdiction and power to enjoin the unlawful practice of medicine in a proceeding by the [Arkansas State Medical Board] or any member thereof, or by any citizen of this state, in the county in which the alleged unlawful practice occurred or in which the defendant resides. . . .
(c) It is declared that any person who practices or attempts to practice medicine in the State of Arkansas without first obtaining a license authorizing him to so practice medicine is a public nuisance, and it is declared that the illegal practice of medicine in violation of the laws of the State of Arkansas is a public nuisance and is detrimental to the health, safety, security, and welfare of the people of the State of Arkansas.

Ark. Code Ann. § 17-95-402(b) and (c) (Repl. 1995).

This legislative grant of authority, however, does not answer the question of whether courts of law preempt equity jurisdiction in the area of the unlawful practice of medicine when an adequate remedy at law exists. It is axiomatic in our jurisprudence that if an adequate remedy at law exists, no irreparable harm can result so as to warrant equity jurisdiction, and equity as a result is deprived of jurisdiction. See, e.g., Union Pac. R.R. Co. v. State Ex Rel. Faulkner County, 316 Ark. 609, 873 S.W.2d 805 (1994); Compute-A-Call v. Tolleson, 285 Ark. 355, 687 S.W.2d 129 (1985); McGehee v. Mid South Gas Co., 235 Ark. 50, 357 S.W.2d 282 (1962).

We turn then to an examination of the adequacy of a legal remedy in the instant case. The chancery court concluded that an ' adequate remedy at law did exist due to the administrative remedy before the Dental Board and dismissed the Medical Board’s complaint accordingly. The Medical Board, however, counters that an administrative remedy before the Dental Board under the Administrative Procedure Act is clearly inadequate under our caselaw. In support of its contention, the Medical Board cites us to Arkansas State Med. Bd. v. Bolding, supra, and Miller v. Reed, 234 Ark. 850, 355 S.W.2d 169 (1962). The Miller case involved a suit in chancery court by the Medical Board to halt certain chiropractors from prescribing medicines. We held in that case that the administrative remedy before the Chiropractic Board was inadequate and that a writ of prohibition should not issue to chancery court. That case, however, is distinguishable on its facts, because, in Miller, there was no claim by the chiropractors that prescribing medicines constituted the practice of chiropractic. In the instant case, on the other hand, the critical issue is whether removal of the carcinoma constitutes the practice of dentistry or the practice of medicine.

Nevertheless, we question the adequacy of the legal remedy in the case before us. The Dental Board has filed a brief in this case arguing that the removal of the carcinoma is the practice of dentistry. In light of the Dental Board’s announced position on the matter, we are hard pressed to see how the Dental Board could posture itself as an objective and impartial tribunal. We are aware that any decision by the Dental Board would be subject to judicial review in circuit court. See Ark. Code Ann. § 25-15-212 (Repl. 1996). But judicial review of an administrative appeal is limited. See Ark. Code Ann. § 25-15-212(h) (Repl. 1996). We conclude that under these circumstances the administrative remedy is inadequate and chancery court should retain jurisdiction pursuant to its authority under § 17-95-402(b) and (c).

With respect to whether the Dental Board should remain a party in chancery court, joining the Dental Board as a party defendant in chancery court for resolution of a dentistry/medical issue is precisely what we prescribed should be done in Arkansas State Med. Bd. v. Bolding, supra. In Bolding, the Medical Board sought to enjoin Dr. Bolding from the unlawful practice of medicine which centered around plastic surgery and further to stop Springdale Memorial Hospital from aiding and abetting Dr. Bolding in his practice of medicine. The trial court granted summary judgment to the defendants because the Dental Board was not a party, and because it did not want to create a situation where the Medical Board and Dental Board had inconsistent determinations on whether plastic surgery constituted the practice of dentistry or medicine. On appeal, we held that the trial court erred in granting the defendants summary judgment and that the Dental Board should have been joined as a necessary party, because the Board was the regulatory agency endowed with the authority to decide what constitutes the practice of dentistry. We said, additionally, that complete relief could not be afforded the parties without the participation of the Dental Board.

In the case before us, whether Dr. Schoen’s removal of a patient’s carcinoma is dentistry or medicine is hotly contested by the two professional boards. The Dental Board, according to the allegations in the Medical Board’s compliant, has aided Schoen in the removal of the carcinoma and in other unlawful procedures. Moreover, the Dental Board has argued in this appeal that the removal of the carcinoma constitutes the practice of dentistry. In effect, the Dental Board has already decided this matter. As we said in Bolding, we will not sanction proceedings in chancery court which do not include the Dental Board. Otherwise, the Dental Board and the chancery court could decide the issue differently, and the matter would not be resolved. We conclude that it is eminently preferable to have the legal and factual issues thrashed out in chancery court with the full participation of the Dental Board and the Medical Board.

Motion to dismiss appeal granted in part and denied in part with respect to the Dental Board.

Reversed and remanded.


text:
    Eric Alan HAMEL v. STATE of Arkansas
    CR 98-23
    1 S.W.3d 434
    Supreme Court of Arkansas
    Opinion delivered October 14, 1999

      Craig Lambert, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Eric Hamel appeals on the basis that the trial court erred in dismissing his petition for postconviction relief under Ark. R. Crim. P. 37, when that petition was received more than ninety days after judgment was entered against him. We discern no error in the trial court’s dismissal and affirm.

The facts are not in dispute. Hamel pled guilty to a reduced charge of first-degree murder and was sentenced to forty years in prison with ten years suspended. On June 11, 1996, the judgment of conviction was entered against him in the Benton County Circuit Clerk’s office. On September 5, 1996, which was eighty-six days after entry of judgment, Hamel placed his Rule 37 petition in the inmate mailing system at the Cummins Unit of the Department of Correction. The Legal Mail Log at the Cummins Unit substantiates this fact. On September 11, 1996, Hamel’s petition was stamped filed in the Benton County Circuit Clerk’s office. Because Hamel’s petition was file-marked on the ninety-second day after entry of judgment, the trial court dismissed the petition.

Hamel’s sole argument on appeal is that the trial court erred in dismissing his petition and urges this court to adopt the “Mailbox Rule,” which provides that a pro se inmate files his or her petition at the time the petition is placed in the hands of prison officials for mailing. In support of his argument, Hamel cites us to the reasoning in Houston v. Lack, 487 U.S. 266 (1988), where the United States Supreme Court concluded that a notice of appeal in a habeas corpus case was filed when the petitioner delivered that notice to prison authorities for mailing. The rationale of the Court was that prison inmates were foreclosed from being able to monitor the progress of their appeals by virtue of their incarceration and were forced “to entrust their appeals to the vagaries of the mail. . . .” 487 U.S. at 271. The pertinent federal statute involved in Houston provided that appeals from a judgment shall not be brought “unless the notice of appeal is filed within thirty days after the entry of such judgment.” See 28 U.S.C. § 2107. Federal Rules of Appellate Procedure 3(a) and 4(a)(1) were even more specific with regard to the filing required. Both specified that the notice of appeal be filed “with the clerk of the district court.” Be that as it may, the Court concluded that filing by pro se inmates occurred when the notice of appeal was delivered to prison authorities.

The State, on the other hand, urges this court to follow the plain language of our rule, which reads in pertinent part:

(c) If a conviction was obtained on a plea of guilty, or the petitioner was found guilty at trial and did not appeal the judgment of conviction, a petition claiming relief under this rule must be filed in the appropriate drcuit court within ninety (90) days of the date of entry of judgment.

Ark. R. Crim. P. 37.2(c) (emphasis added). The State continues by citing caselaw where this court has held that the time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on an untimely petition for postconviction relief. See, e.g., Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996). This court has further held that the date of filing a petition for postconviction relief is determinative of whether the trial court has jurisdiction to reach the merits of the case. See Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996). The State, finally, emphasizes the point that this court has held that pro se inmates are required to conform to the rules of appellate procedure. See, e.g., Daffron v. State, 325 Ark. 411, 926 S.W.2d 662 (1996) (per curiam) (abstract deficiency).

We view our procedural rule, Ark. R. Crim. P. 37.2(c), as controlling in this case. That rule requires in language that is clear and unambiguous that the petition must be filed in the appropriate circuit court within ninety days of judgment. That, of course, did not occur in this case. Though Hamel argues vigorously that this court should adopt the reasoning of Houston v. Lack, supra, we decline to do so. This court has noted in a prior decision that the Houston case was no more than the Supreme Court’s interpretation of federal rules which have no applicability in our jurisdiction. See Key v. State, 297 Ark. 111, 759 S.W.2d 567 (1988) (per curiam).

The trial court correctly dismissed Hamel’s petition for lack of jurisdiction.

Affirmed.

Corbin, J., not participating.


author: Annabelle Clinton Imber, Justice.

text:
    Henry Eugene BUSH v. STATE of Arkansas
    CR 99-355
    2 S.W.3d 761
    Supreme Court of Arkansas
    Opinion delivered October 14, 1999

      William R. Simpson, Jr., Public Defender, and Jeffrey A. Weber, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

Mr. Henry Eugene Bush was convicted of sexual assault in the first degree and sentenced to ten years’ imprisonment. On appeal, Mr. Bush asserts that while awaiting trial he was “in custody” under an electronic monitoring program for a period of 325 days, and that the trial court erred when it refused to allow credit for that period against his ten-year sentence, pursuant to Ark. Code Ann. § 5-4-404 (Repl. 1997). We disagree and affirm the trial court.

Mr. Bush was arrested on December 18, 1997, and charged with rape under Ark. Code Ann. § 5-14-103 (Repl. 1997). The municipal court set bad at $10,000.00, conditioned upon Mr. Bush’s enrollment in an electronic monitoring program. Mr. Bush enrolled in the program on December 26, 1997, and was released from jail on a $10,000 bond. Pursuant to the terms of the electronic monitoring program, Mr. Bush wore an electronic bracelet at all times and was not allowed to leave his home except to go to his place of employment and to counseling. With prior permission from the monitoring official, he was allowed to go other places. Mr. Bush stayed on the program for 325 days and committed no violations.

On November 16, 1998, Mr. Bush entered a plea of no contest to a reduced charge of sexual assault in the first degree, with a recommended sentence of ten years’ imprisonment. The trial judge accepted the plea and sentenced Mr. Bush to ten years in the Department of Correction. Mr. Bush then requested credit for the time he spent in custody awaiting trial. He argued that he was entided to credit not only for the time he spent in jail (nine days), but also for the time he spent on home detention with electronic monitoring (325 days). The trial court refused to give Mr. Bush credit for the time that he spent on home detention, but did give him credit for the nine days that he actually spent in jail. Mr. Bush now appeals that ruling and asserts that he was in “custody” while under home detention with electronic monitoring, and that pursuant to section 5-4-404 he is entitled to credit against his ten-year sentence for time spent in custody.

Arkansas Code Annotated section 5-4-404 states that “if a defendant is held in custody for conduct that results in a sentence to imprisonment, the court shall credit the time spent in custody against the sentence.” In this appeal, we are asked for the first time to construe the phrase “in custody” as it is used in section 5-4-404, and specifically with reference to a defendant who is released on bond, but subject to an electronic monitoring program while awaiting trial on criminal charges.

The basic rule of statutory construction is to give effect to the intent of the General Assembly. St. Paul Fire & Marine Ins. v. Griffin Constr., 338 Ark. 289, 993 S.W.2d 485 (1999); Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). When we construe a statute, we look first at the plain language of the statute and give the words their plain and ordinary meaning. See ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998); Ford Motor Credit Co. v. Ellison, supra. If the language of a statute is ambiguous, we resort to other indicators of legislative intent, such as the subject matter of the statute, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate matters that throw light on the subject. L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998). In construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998); Hercules, Inc. v. Pledger, 319 Ark. 702, 706, 894 S.W.2d 576, (1995). Statutes relating to the same subject must be construed together and in harmony, if possible. See K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998); Johnson v. State, 331 Ark. 421, 961 S.W.2d 764 (1998).

It is axiomatic that the meaning of certain words or phrases cannot be determined in isolation, but must be drawn from the context in which they are used. That principle certainly applies to the task of ascertaining what is meant by the phrase “in custody.” For example, for purposes of entitlement to Miranda warnings, a person is “in custody” when he or she is deprived of freedom of action by formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996). However, for purposes of Rule 37 proceedings, a person is “in custody” only when he or she is actually physically incarcerated. See Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999). Although the phrase “ in custody” has been construed in other contexts, that phrase has not been specifically construed in connection with its use in Ark. Code Ann. § 5-4-404. Under these circumstances, where the statutory language is ambiguous in that it is context-dependent, we must resort to other evidence of legislative intent to determine its meaning.

Mr. Bush argues that electronic monitoring falls within the phrase “in custody” as it is used in Ark. Code Ann. § 5-4-404, because a person can be charged with absconding for leaving an electronically monitored area. Absconding is defined under Ark. Code Ann. § 5-54-131 (Supp. 1999), which states that:

(a) A person commits the offense of absconding if the person knowingly:
(1) Leaves a designated residence while under house arrest ordered as a condition of the person’s release on a criminal offense by a court of competent jurisdiction; or
(2) Leaves a designated area while wearing an electronic monitoring device ordered as a condition of the person’s release on a criminal offense by a:
(A) Court of competent jurisdiction; or
(B) (i) Sheriff or his designee.
(ii) A determination by a sheriff or his designee placing a person on electronic monitoring remains valid until changed by the sheriff or his designee.
(b) The offense of absconding is a Class D felony.

According to Mr. Bush, the existence of this offense is evidence of a legislative intent that the phrase “in custody” in section 5-4-404 includes electronic monitoring. We disagree.

The enactment of Ark. Code Ann. § 5-54-131 is actually evidence of a contrary legislative intent. The separate offenses of first-, second-, and third-degree escape were in existence prior to the enactment in 1993 of a statute creating the offense of absconding. See Act 473 of 1993, codified at Ark. Code Ann. § 5-54-131; see also Ark. Code Ann. § 5-54-110 (Repl. 1997)(first-degree escape); Ark. Code Ann. § 5-54-111 (Repl. 1997)(second-degree escape); and Ark. Code Ann. § 5-54-112 (Repl. 1997)(third-degree escape). These escape offenses are included under Title 5, Chapter 54, of the Arkansas Code, entitled “Obstructing Governmental Operations.” For purposes of that chapter, the term “custody” is defined in Ark. Code Ann. § 5-54-101(2) (Repl. 1997) as:

actual or constructive restraint by a law enforcement officer pursuant to an arrest or a court order but does not include detention in a correctional facility, juvenile training school, or the Arkansas State Hospital.

Also for purposes of that chapter, the term “escape” is defined as the “unauthorized departure of a person from custody or a correctional facility.” See Ark. Code Ann. § 5-54-101(3) (Repl. 1997). By the enactment in 1993 of a separate offense of absconding, the legislature indicated that the crime of leaving an electronically monitored area was different from the already extant crimes of first-, second-, and third-degree escape. In other words, leaving an electronically monitored area was not escape from custody as defined by Ark. Code Ann. § 5-54-101. We therefore conclude that custody and electronic monitoring were intended by the legislature to be separate and distinct circumstances.

Moreover, Ark. Code Ann. § 16-93-708 (Supp. 1999) specifically provides that the Department of Correction must award a defendant credit against his sentence for time spent in a home-detention program with electronic monitoring. The absence of a similar provision extending credit for electronic monitoring prior to commitment to the custody of the Department of Correction is evidence that the legislature did not intend for credit to be given for electronic monitoring while a defendant is awaiting trial.

Similarly, other statutes that address pretrial proceedings in criminal cases mention only two options for a defendant awaiting trial — he or she may be released on bond or remain in custody. See Ark. Code Ann. § 16-85-206 (1987) (Bail During Periods of Adjournment); Ark. Code Ann. §16-85-513(b) (1987)(Indictment); Ark. Code Ann. § 16-85-706 (1987)(Motion to Set Aside Indictment); Ark. Code Ann. § 16-89-101 (1987)(Trial Times and Postponements); Ark. Code Ann. § 16— 89-103 (Supp. 1999)(Presence of Defendant); Ark. Code Ann. § 16-89-106 (1987)(Defendant on Bail for Felony Indictment); Ark. Code Ann. § 17-19-101 (Repl. 1995) (Definitions ■— defining Bail Bond as “a bond for a specified monetary amount ... as security for subsequent court appearance of the defendant upon his release from actual custody pending the appearance.’’(Emphasis added.)). There is a conspicuous absence of any language suggesting a circumstance other than bond or actual custody, thereby manifesting a legislative intent that the phrase “in custody” applies only to circumstances where the individual is not released on bond.

The United States Supreme Court reached a similar conclusion in Reno v. Koray, 515 U.S. 50 (1995). Koray involved the interpretation of 18 U.S.C. § 3585(b), which provided that a defendant must be “given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences.” Id. Mr. Koray asserted that the time he spent in a treatment center pursuant to a court order prior to sentencing was time spent in “official detention” and should be credited toward time on his prison sentence. Id. The Court construed the phrase “official detention” in light of the Bail Reform Act of 1984, which allows credit for presentence restraints on liberty. Id. Because that act provides a court with two choices, releasing a defendant on bail, or ordering the defendant detained without bail, the Court concluded that a defendant suffers a “detention” only when committed to the Attorney General’s custody, and that a defendant admitted to bail, even on restrictive conditions, is “released.” Id. Mr. Koray was released on bail, subject to the condition that he enter the treatment facility. Accordingly, the Court found that he had not been “detained” and was therefore not entitled to credit for his time in the treatment facility. Id.

While a defendant may be required to submit to home detention or monitoring as a condition of bond, the fact remains that the defendant is released from the constant supervision of a penal institution. As pointed out by the Supreme Court in Koray, supra, the distinction between being released on bond and being held in a penal facility is evident in terms of the control exercised by the penal facility. A defendant released on bail is not subject to the rigorous controls of a penal facility, which include disciplinary procedures, summary reassignments, and a total loss of privacy. In State v. Ramos, 561 N.E.2d 643 (Ill. 1990), the Illinois Supreme Court held that the phrase “in custody” as used in a statute providing for jail time credit does not include home detention while a defendant is released on bond because:

[a]n offender who is detained at home is not subject to the regimentation of penal institutions and, once inside the residence, enjoys unrestricted freedom of activity, movement, and association. Furthermore, a defendant confined to his residence does not suffer the same surveillance and lack of privacy associated with becoming a member of an incarcerated population.

This contrast is further illustrated by the plight of those who must endure incarceration in a prison facility as a consequence of indigency or denial of bond. While some jurisdictions have focused on the degree of confinement or restriction and awarded credit on a case-by-case basis, we decline to do so here. See, e.g., Dedo v. State, 680 A.2d 464 (Md. 1996); State v. Platt, 610 A.2d 1398 (Vt. 1992); see also Lee R. Russ, Annotation, Defendant’s Right To Credit for Time Spent in Halfway House, Rehabilitation Center, or Similar Restrictive Environment As a Condition of Pretrial Release, 29 A.L.R. 240 (1984). Such an approach is not only time-consuming and fact-intensive, but is also likely to result in disparate treatment. See Koray, supra.

Based upon the legislature’s enactment of the absconding statute, Ark. Code Ann. § 5-54-131, that does not equate electronic monitoring with custody under Ark. Code Ann. § 5-54-101(2), and based upon other pretrial statutes that mention only two options for defendants awaiting trial, to be released on bail or to remain in custody, we conclude that the phrase “in custody” for purposes of Ark. Code Ann. § 5-4-404 should be construed to exclude defendants released on bond, even when electronic monitoring is a condition of bond. We, therefore, hold that credit for time spent in custody under Ark. Code Ann. § 5-4-404 is available only to those persons who remain in the custody of a penal institution. Defendants released on bond but subject to an electronic monitoring program are nonetheless released and, thus, are not entitled to credit against a sentence of imprisonment for time spent under such programs. This interpretation is bolstered by the legislature’s silence with respect to electronic monitoring while a defendant awaits trial, in the face of a specific provision for such credit after a defendant is committed to the custody of the Department of Correction. See Ark. Code Ann. § 16-93-708. We believe this statutory framework is compatible not only with statutory indications of legislative intent on this issue, but also with principles of fundamental fairness.

Many other jurisdictions that have considered this issue have also concluded that pretrial home detention or electronic monitoring is not equivalent to being “in custody” for purposes of sentencing credit. See Ramos, supra; People v. Thompson, 528 N.E.2d 1016 (Ill. App. 1988); State v. Wilkinson, 539 N.W.2d 249 (Minn. App. 1995); State v. Faulkner, 657 N.E.2d 602 (Ohio App. 1995); see also, Mark E. Burns, Electronic Home Detention: New Sentencing Alternative Demands Uniform Standards, 18 J. Contemp. L. 75 (1992). Likewise, we conclude that electronic monitoring does not constitute being held in custody for purposes of credit against a sentence of imprisonment under Ark. Code Ann. § 5-4-404 where the individual has been released on bond. Because Mr. Bush was released on bond, the trial court correctly ruled that he was not entitled to credit against his ten-year sentence for the time he spent on electronic monitoring at his residence.

Affirmed.

       This conclusion is also supported by the following Arkansas Code Revision Commission note to Ark. Code Ann. §§ 5-54-101, et seq: “References to “this chapter” in §§ 5-54-101 - 5-54-130 may not apply to § 5-54-131 [the absconding statute] which was enacted subsequently.”


author: Annabelle Clinton Imber, Justice. Tom Glaze, Justice,

text:
    STATE of Arkansas v. Mike J. JONES
    CR 99-352
    3 S.W.3d 675
    Supreme Court of Arkansas
    Opinion delivered October 14, 1999

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellant.

      Witt Law Firm, P.C., by: Ernie Witt, for appellee.
   Annabelle Clinton Imber, Justice.

Mr. Mike J. Jones was charged with boating while intoxicated (BWI) under Ark. Code Ann. § 5-76-102 (Repl. 1997). The trial court ruled that the Arkansas Department of Health had not adopted or promulgated regulations for alcohol testing in BWI cases as required by Ark. Code Ann. § 5-76-106(a) (Repl. 1997). Accordingly, the trial court suppressed the breathalyzer test results and granted Mr. Jones’s motion for a directed verdict of acquittal. On appeal, the State argues that the trial court erred because the State Health Department had promulgated regulations for alcohol testing that apply equally to driving-while-intoxicated (DWI) prosecutions filed under Ark. Code Ann. § 5-65-101 et. seq. (Repl. 1997), and boating-while-intoxicated prosecutions filed under Ark. Code Ann. § 5-76-101 et. seq. (Repl. 1997). Mr. Jones responds that the State is procedurally barred from pursuing its arguments on appeal, and that suppression of the test results is also warranted because the rights form used by the officers contained inaccurate information. We reverse and remand.

Mr. Jones was arrested on May 25, 1998, for suspicion of boating while intoxicated (BWI). Law enforcement officers asked Mr. Jones to submit to a breathalyzer test. In that regard, he was given several forms, including a statement of rights form that contained information about the consequences of refusing to submit to the test. Mr. Jones submitted to a breathalyzer test, which indicated a breath alcohol concentration of .172, and he was given a citation for boating while intoxicated. He pled no contest to the charges in municipal court and was convicted of the offense. Mr. Jones then appealed the conviction to circuit court and moved to suppress the introduction of his breathalyzer test results on grounds that the State Health Department failed to promulgate regulations for alcohol testing in BWI offenses as required by Ark. Code Ann. § 5-76-106(a). Mr. Jones also argued that he was not properly advised of the consequences of a refusal to submit to the test. The State responded that alcohol-testing regulations promulgated by the State Health Department under the DWI statute also applied to prosecutions under the BWI statute. The trial court granted Mr. Jones’s motion, suppressed the test results, and dismissed the charges against Mr. Jones.

On appeal, the State argues that the State Health Department in fact did promulgate and adopt regulations for alcohol testing pursuant to Ark. Code Ann. § 5-76-106(a), and that these regulations were in force and applicable to both DWI and BWI offenses at the time of the offense and at the time the trial court suppressed the test results and dismissed the charges against Mr. Jones. We agree.

Arkansas Code Annotated sections 5-76-101 et seq. became effective on May 1, 1995, pursuant to Act 518 of 1995 and the emergency clause contained therein. Arkansas Code Annotated § 5-76-106(a) specifically gives the State Health Department the authority to enact regulations to implement the purposes of the chapter entitled “Operation of Motorboats While Intoxicated”:

The State Board of Health is authorized to adopt appropriate regulations to carry out the intent and purposes of this chapter, and only machines or instruments approved by the board as meeting the requirements of this section and § 5-76-105 and regulations of the board shall be used for making the breath analysis for determining blood alcohol content.

Pursuant to these provisions, the State Health Department adopted revised “Regulations for Alcohol Testing” on November 15, 1995, five months after the passage of Act 518 of 1995. These regulations provide that they are:

Duly adopted and promulgated by the Arkansas Department of Health as approved by the Arkansas State Board of Health pursuant to the authority expre.ssly conferred by the laws of the State of Arkansas, Act 106 of 1969, as amended and Act 346 of 1957 as amended, the same being Arkansas Code, Tide 5, Chapter 65 and Act 518 of 1995 as amended.

See Arkansas Regulations for Alcohol Testing (1995 4th Revision), prefatory statement of Authority (emphasis added). Thus, it is clear that regulations for alcohol testing were adopted and promulgated by the State Health Department pursuant to the authority of both the DWI statute and the BWI statute, and that the same testing procedures apply to prosecutions under either statute. The trial court, therefore, erred when it ruled that no regulations had been adopted or promulgated in accordance with the requirements of Ark. Code Ann. § 5-76-106(a).

Nevertheless, Mr. Jones argues that the State is procedurally barred from pursuing its argument on appeal because it failed to request that the trial court take formal judicial notice of the regulations. This argument is without merit.

We have addressed the issue of judicial notice frequendy in appeals involving regulations. See Peters v. State, 321 Ark. 276, 902 S.W.2d 757 (1995); Washington v. State, 319 Ark. 583, 892 S.W.2d 505 (1995); Arkansas Alcoholic Beverage Control Bd. v. Muncrief 328 Ark. 373, 825 S.W.2d 816 (1992); Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989); St. Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980); Seubold v. Ft. Smith Special Sch. Dist., 218 Ark. 560, 237 S.W.2d 884 (1951). A party is not required to formally proffer, prove, or introduce published regulations into evidence, so long as that party’s reliance on such regulations is brought to the attention of the trial court. See, e.g., Peters, supra; Mitchell, supra; Touzin, supra. This is because regulations adopted pursuant to the authority of a statute are considered part of the substantive law of this State, thus creating a presumption that the trial court judicially knows them. Manufacturer’s Casualty Ins. Co. v. Hughes, 229 Ark. 503, 316 S.W.2d 829 (1984). See also Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998) (“although that rule [Ark. R. Civ. P. 44.1, entitled “Determination of Foreign Law”] is to be applied in civil cases, it makes clear this Court’s position that foreign law is unlike the law of this State of which the courts presumably have inherent knowledge.”). An agency regulation is part of the substantive law the trial court must determine and then apply to the facts of the case before it. Washington, supra. In Touzin, supra, we succinctly stated what is required to preserve arguments premised upon regulations for appeal:

Judicial notice may be taken of [a] regulation, but the proper procedure is for the party relying on such judicial notice to aid the court or administrative law judge by calling attention to that regulation.

(Emphasis added.)

In the instant case, the State argued to the trial court that the alcohol testing was conducted in a manner already approved by the State Flealth Department and that the standards, machinery, and certification procedures mandated for alcohol testing under the DWI statute were also applicable to testing under the BWI statute. The State’s argument to the trial court is reflected in the following colloquy:

The Court: Do you agree with Mr. Witt that the State Department of Health has not promulgated rules with reference to DWI?
Ms. Caplinger (For the State): They have reference—
Mr. Witt: To boating.
The Court: To boating.
Ms. Caplinger: Your honor, that’s my argument, is that they have promulgated instructions for DWI and since the intent is the same and the equipment used is the same—
The Court: Let me see the statute. Do you have the statute?
* * *
The Court: What do you say, what do you say here, Ms. Caplinger, about chemical analysis of person’s blood, urine, or breath to be considered valid under this provision? It says it must be performed according to methods approved by the State Board of Health or by an individual possessing a valid permit issued by the Department of Health.
Ms. Caplinger: Your Honor, the tests were conducted by a method approved by the Arkansas Department of Health under the DWI law. They have the equipment there that has already been approved.
The Court: Okay.
Ms. Caplinger: The intent of the law is the same as the DWI law. I do not think that there should be any problem. The standards are the same. It’s point-one-zero. That machine has already been approved by the Arkansas Department of Health for the testing of blood alcohol content in the blood. Our operators are certified. The machinery is in fine condition.

Based upon this colloquy, we hold that the State’s argument was sufficient to place the trial court on notice that it was relying on the “Regulations for Alcohol Testing” promulgated by the State Health Department for DWI violations. While the trial court did not orally take formal judicial notice of the regulations, there is no doubt that it was made aware of the State’s reliance upon them, and of their possible application in light of the specific regulatory authority delegated to the State Health Department by Ark. Code Ann. § 5-76-106.

We recognize that the State did not directly contradict the defense counsel’s assertions by stating that the regulations had been promulgated under the specific authority of Ark. Code Ann. § 5-76-106, and that, had either party actually produced a copy of these regulations to the court, the question here presented would have been immediately resolved. However, as stated above, it is not incumbent upon a party to actually produce or introduce such regulations. Washington, supra; Mitchell, supra. Here, the agency regulations were issued pursuant to a statutory directive, thus making them a part of the substantive law which the trial court must determine and apply to the facts of the case before it. See Washington, supra. Although the trial court obviously relied upon the bare assertions of defense counsel in making its ruling, the fact remains that it was put on notice by the State and by the statute itself that these regulations might be applicable substantive law. Once this was done, it was incumbent on the trial court to determine whether these regulations were substantive law and then apply them to facts of the case before it. Washington, supra. We therefore conclude that this issue is properly preserved for appeal.

For similar reasons, we reject Mr. Jones’s related assertion that the State has changed its argument on appeal. In order for us to consider an argument on appeal, it is necessary that there be an objection in the trial court that is sufficient to apprise the court of the particular error alleged. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). A party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. Ayers, supra; Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997).

As previously noted, the State argued below that the State Health Department’s regulations for alcohol testing in the prosecution of DWI offenses are the same regulations to be employed in the prosecution of BWI offenses. In fact, this is correct. The State Health Department’s regulations for alcohol testing are the same for both statutes. Ark. Reg. Alcohol Testing, supra. On appeal the State simply strengthens that argument by its citation to specific authority in the regulations that states these regulations were specifically promulgated under the authority of both statutes. The argument remains premised on the fact that the same regulations for alcohol testing apply to both statutes. Thus, we conclude that the State has not changed the scope or nature of its argument on appeal.

Mr. Jones next argues that the State’s failure to include the Department’s “Regulations for Alcohol Testing” in its abstract is a procedural bar. However, we have stated repeatedly that we will take judicial notice of regulations of state agencies which are published, regardless of whether or not they are abstracted. McKinley v. Arkansas Dep’t of Human Servs., 311 Ark. 382, 844 S.W.2d 366 (1993). As the regulations at issue here are published and specifically referenced by statute, we find no deficiency in the State’s abstract.

Mr. Jones finally argues an alternative basis for upholding the trial court’s ruling suppressing his test results. In that regard, he asserts that he was given inaccurate information about the consequences of refusing to submit to the test, which coerced him into taking the breathalyzer test. This argument, however, is premature. The record has not been fully developed by the presentation of testimony and evidence, nor has the trial court ruled on this issue. Hence, we are unable to address Mr. Jones’s alternative argument in this appeal.

Reversed and remanded.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. The majority opinion cites the appropriate law, but then reaches the wrong result. Act 518 of 1995 prohibits the operation of a motorboat while under the influence of alcohol and authorizes the State Board of Health to adopt regulations to carry out the purposes of the Act. The problem here is that the deputy prosecutor was unaware that the Board had promulgated a regulation approving machines to be used for making the breath analysis for determining blood-alcohol content where motorboats were involved. As a result, the deputy prosecutor urged that although the Board had no regulation covering watercraft, the trial court should apply those regulations promulgated for blood analysis in DWI cases.

As the majority opinion mentions, a party is not required to proffer or introduce regulations, so long as that party’s reliance on such regulation is brought to the trial court’s attention. St. Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980). (Emphasis added.) Here, no one ever apprised the trial judge that the Board of Health ever promulgated a regulation pertaining to alcohol testing where watercraft were involved. Instead, the State pointed to the DWI regulation which appeared inapplicable to motorboats. Surely, the trial court was entitled to have the State place the court on notice that the Board had enacted a regulation that related to persons who are alleged to have illegally operated a watercraft while under the influence of alcohol.

On appeal, the State now includes as a part of its argument the point that the Board of Health had actually adopted a regulation that applied existing DWI testing procedures to both vehicles and watercraft. The majority opinion adopts the State’s argument even though this regulation and argument were never brought to the trial court’s attention below and are introduced for the first time on appeal. As we have repeatedly held over the years, a party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997).

Here, the trial court was misled by the deputy prosecutor’s silence when the trial judge at trial said that it “has not had anything from the state to indicate that the Health Department has done that with reference to boating cases.” In other words, the State below not only failed to direct the trial judge’s attention to the regulation covering watercraft, it also indicated to the judge that no such regulation existed. The State introduced the error in this case, not the trial judge.

For the reasons above, I would affirm the trial court’s ruling.

       The court’s question refers to an earlier statement by Mr. Jones’s counsel: Mr. Witt (Defense counsel): I state as an officer of this court there are no State Board of Health regulations pertaining to the charge of boating while intoxicated. As an officer of this court, I state to you that I contacted the State Board of Health and they have not adopted any regulations whatsoever in this area.

       It is noted that, while the deputy prosecutor stated at trial that she believed the State had enough evidence without a blood test to show Mike J. Jones had violated boating while intoxicated under Act 518, the State opted not to proceed. Thus, this appeal ensued without the State putting on its case.


author: Lavenski R. Smith, Justice.

text:
    Michael GRINE v. BOARD of TRUSTEES, University of Arkansas
    99-18
    2 S.W.3d 54
    Supreme Court of Arkansas
    Opinion delivered October 14, 1999

      Charles M. Kester, for appellant.

      T. Scott Varady, Assoc. Gen. Counsel; Jeffrey A. Bell, Assoc. Gen. Counsel; Rhonda M. Thornton; and Mark Pryor, Att’y Gen., by: Tim Humphries, Deputy Att’y Gen., for appellees.

      Morgan E. Welch, for amicus curiae Arkansas Trial Lawyers Association.
   Lavenski R. Smith, Justice.

Michael Grine (“Grine”), appellant, sued the Board of Trustees of the University of Arkansas and certain officials and employees of the University. Appellant’s complaint alleged claims for breach of contract, promissory estoppel, constructive fraud, and fraud and sought an injunction to stop the University from enforcing its rule requiring completion of a doctorate within seven years. Grine appeals the Washington County Chancery Court’s order granting appellees’s motion to dismiss. The chancellor ruled that the doctrine of sovereign immunity as set out in Ark. Const., Art. 5, § 20, prohibited the suit. This appeal involves interpretation or construction of the Arkansas Constitution. Hence, we take jurisdiction pursuant to Ark. Sup. Ct. R. l-2(a)(l). Grine contends his claims state exceptions to the doctrine and should be permitted to go forward. We disagree and affirm.

Facts

Grine failed to obtain his doctorate in Marketing at the University of Arkansas while working under the advice and direction of Appellee Dr. Dub Ashton (“Ashton”). Grine asserts Ashton caused this by acting in bad faith in giving him an unworkable dissertation topic, and then in giving him inaccurate, arbitrary, and false information. Grine alleges he told Ashton in July 1995, that he had to finish his doctorate by October 1995, or he would lose a teaching position in Oklahoma, and that Ashton told him it was not a problem. Then, as the summer of 1995 ended, Grine states Ashton told him he was not optimistic Grine could finish by October. Grine states some drafts had been with Ashton for a year, and he had not read them. Grine asserts Ashton ceased to cooperate until Grine went to the department head to complain. Then, Grine alleges, Ashton read the drafts within a week of his discussion with the department head and returned a negative response when all previous responses had been positive. Grine also asserts that in a subsequent meeting Ashton told him he was angry because Grine had gone to the department head. Some time later, Ashton told Grine that Grine was “unable to conceptualize what a dissertation should look like and that he should just give up.” Grine then took his work to three other professors who told him that his work was inferior in quality. According to Grine, one professor said she was not sure the topic could be developed into anything acceptable as a dissertation.

Grine believes Ashton initially acted out of simple ignorance because Ashton had failed to stay abreast of developments in the field of marketing. Grine asserts Ashton later realized that his ignorance would become manifest to his colleagues during the dissertation process. This, according Grine, made Ashton become deliberate in avoiding him and in giving him false information. Grine asserts that Ashton’s actions ultimately caused him to fail to complete his doctorate within the seven year period allowed by the University. As to the other University officials, Grine contends they should be enjoined from enforcing the seven-year doctoral completion period so that he may continue pursuit of his doctorate.

On appeal, Grine argues that the trial court erred because Grine properly pleaded exceptions to sovereign immunity. More particularly, appellant avers that his complaint alleged acts that were ultra vires, bad faith, and arbitrary and capricious actions, and thus riot entitled to immunity. Grine also argues sovereign immunity is inapplicable to the individuals because they were sued for acts of bad faith for which they and not the State would pay.

Standard of Review

In reviewing a trial court’s decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and pleadings are to be liberally construed. Hames v. Cravens, 332 Ark. 437, 442, 966 S.W.2d 244 (1998). However, our rules require fact pleading. A complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Brown v. Tucker, 330 Ark. 435, 438, 954 S.W.2d 262 (1997); Ark. R. Civ. P. 8(a)(1). It should also be noted that we have applied a general policy against intervention by the courts in academic and discipline matters best left to school authorities. Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995); Henderson State University v. Spadoni, 41 Ark. App. 33, 848 S.W.2d 951 (1993).

Sovereign Immunity

Grine asserts the chancellor erred in finding the defendants immune because they acted in bad faith and therefore do not enjoy the benefit of immunity. Sovereign immunity for the State of Arkansas arises from express constitutional declaration. Article 5, section 20, of the State Constitution provides: “The State of Arkansas shall never be made a defendant in any of her courts." Suits against the State are expressly forbidden by this provision. Beaulieu v. Gray, 288 Ark. 395, 705 S.W. 2d 880 (1986); Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938). As we stated long ago in Pitock v. State, 91 Ark. 527, 535 (1909), “[A] sovereign State cannot be sued except by its own consent; and such consent is expressly withheld by the Constitution of this State.” Recently, we reiterated this express prohibition in Brown v. Arkansas State HVACR Lic. Bd., 336 Ark. 34, 984 S.W.2d 402 (1999). In Brown, we pointed out that sovereign immunity is jurisdictional immunity from suit, and where the pleadings show the action is one against the State, the trial court acquires no jurisdiction. However, unlike subject-matter jurisdiction, sovereign immunity can be waived. Newton v. Etoch, 332 Ark. 325, 331, 965 S.W.2d 96 (1998); State v. Tedder, 326 Ark. 495, 932 S.W.2d 755 (1996); Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997); Department of Human Servs. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). The doctrine makes no distinction between actions in equity and actions at law. Id.

While the State of Arkansas constitutionally possesses sovereign immunity, its officers and employees do not. However, the legislature has chosen to grant limited immunity to the State’s officers and employees by statute except to the extent the employee has liability coverage. See Ark. Code Ann. § 19-10-305 (Repl. 1998). State officers and employees acting without malice within the course and scope of their employment are immune from an award of damages in litigation. Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997). Suits against officers and employees alleged to be malicious are suits against the officer or employees personally, and they are liable to the extent anyone would be liable under tort law. Matthews v. Martin, 280 Ark. 345, 658 S.W.2d 374 (1983). In the case where the action is intended to prevent a State officer from acting unlawfully, their office does not shield them. In such a cases we treat the suit as an action against the officer and not as a suit against the State. Federal Compress & Warehouse Co. v. Call, Commissioner of Labor, 221 Ark. 537, 254 S.W.2d 319 (1953); See also Pitcock v. State, 91 Ark. 527 (1909). A State can only act through its officers. Pitock v. State, 91 Ark. 527 (1909).

The first issue to be resolved is whether appellant’s action constitutes a suit against the State. To the extent that it does, the Constitution bars it from our State’s courts. Appellant’s complaint does not name the State of Arkansas. However, that is not determinative. In sovereign-immunity cases, we long ago established a test that looks to identify the real party against which relief is sought, not merely to the nominal defendant. Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235, 238 (1938). Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998). Even where the State is not named as a defendant, if a judgment for the plaintiff will operate to control the action of the State or subject it to liability, we treat the suit as one against the State. Id. Appellant named as defendants the University’s trustees, President B. Alan Sugg, Chancellor John A. White, Associate Dean Dub Ashton, and all agents and employees of the University responsible for supervising HH.d. marketing candidates. In his prayer for relief, appellant seeks injunctive relief against the University to restrain it from enforcing its policy limiting doctoral pursuit to seven years. He also seeks money damages against all the named defendants and attorney’s fees and costs.

Based on our review of the record, we hold that appellant’s claim for injunctive relief is unquestionably a legal claim against the State of Arkansas and therefore barred from this State’s courts by Article 5, section 20, of the Arkansas Constitution. Were the requested relief to be granted, the University, not any particular individuals, would have its actions controlled by court order. We have previously held that a suit against the Board of Trustees of the University is a suit against the State. State Comm’r of Labor v. U. of Ark., 241 Ark. 399, 407 S.W.2d 916 (1966). Appellant’s complaint names the Board of Trustees, and it is apparent on its face that the gravamen of the relief requested against the Trustees and the school’s officers implicate the State’s authority and financial resources. Therefore, we affirm the chancellor’s dismissal of appellant’s complaint against the University’s Board of Trustees, its president, its chancellor and against “all agents and employees of the University charged with the evaluation and supervision of candidates for the degree of Ph.D. in marketing” as barred by sovereign immunity.

Appellant argues that his complaint states an exception to the doctrine of sovereign immunity. He contends that he alleged facts sufficient to establish the recognized immunity exception which permits a suit against State officials or agencies to enjoin ultra vires, bad faith, and arbitrary and capricious actions. Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984). Equity does have jurisdiction to enjoin or restrain officers of State agencies where the act to be restrained is ultra vires, wanton, capricious, in bad faith, injurious, or arbitrary. Toan, Comm’r v. Falbo, 268 Ark. 337, 595 S.W.2d 936 (1980); See also Game Comm’n v. Eubank, 256 Ark. 930, 512 S.W.2d 540 (1974); Shellnut v. Ark. State Game & Fish Comm., 222 Ark. 25, 258 S.W.2d 570 (1953). However, reading appellant’s complaint in the light most favorable to him, we hold that the complaint does not state facts sufficient to show that any act on the part of the University or any of its officials was ultra vires, in bad faith, or arbitrary. Appellant acknowledges that the administration exercises discretion in granting the extension, and that it does not do so in every case. He fails to allege any specific act or acts of the named administration officials that would remove immunity with respect to their declination to extend additional time to complete the doctorate requirements.

Liability of Individual Defendants

Grine also asserts Dr. Ashton is liable personally for acts of bad faith, and that he would be responsible personally for any damages assessed. As such, Grine alleges a cause of action against Ashton personally and that the State is not involved. The remaining individual defendants are alleged to be liable based upon Ash-ton’s actions. As stated above, State officials and employees do not enjoy the constitutional immunity accorded the state but have immunity granted by statute unless they are shown to have acted with malice outside the scope of their employment. Cross, supra. “[A]n officer or employee who acts maliciously or outside the scope of his employment is not protected by § 19-10-305(a). (Citations omitted.)” Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998).

Intentional torts overcome the immunity extended to State officers and employees. Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). Thus, in considering the complaint on a motion to dismiss, if the acts or omissions complained of are alleged to be malicious and outside the course and scope of employment, then the coffers of the State are not implicated, and the suit is not one against the State. Under these conditions, Article 5, section 20, of the Constitution is not implicated. Grine’s complaint states only conclusions with no factual support against all defendants with the exception of Dr. Ashton. Therefore, with respect to those defendants, we affirm their dismissal on the basis of their statutory immunity.

In the absence of appellant’s sole claim for equitable relief, chancery jurisdiction is lacking. As a general rule, equity jurisdiction exists only when the remedy at law is inadequate. Townsend v. Arkansas State Highway Comm’n, 326 Ark. 731, 933 S.W.2d 389 (1996); Bryant v. Picado, 338 Ark. 227, 996 S.W.2d 17 (1999). A review of Grine’s complaint reveals equity jurisdiction is dependent upon his right to seek an injunction that the University suspend or reset the clock on its rule that doctorates be completed within seven years of a candidate’s declaration of an intent to pursue a doctorate. We have already held that sovereign immunity bars the claim for injunctive relief against the State. The trial court acquires no jurisdiction when sovereign immunity is applicable. Brown, supra. Hence, once the equitable claim ceased, appellant essentially brought nothing but legal claims before the chancery court. Ordinarily, the equity clean-up doctrine would permit the chancery court to decide all other issues once it acquires jurisdiction for one equitable purpose. Burns v. First Nat’l Bank, 336, 985 S.W.2d 747 (1999). In the instant case, the court acquired no jurisdiction over any equitable claims because of the State’s immunity. With no equitable jurisdiction ever acquired, the chancery court was “wholly incompetent” to grant the relief sought by appellant. Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). Therefore, appellant’s remaining purely legal claims for damages against Dr. Ashton should have been dismissed without prejudice.

We affirm.


text:
    Sylvester RICHARDS v. STATE of Arkansas
    CR 99-717
    2 S.W.3d 766
    Supreme Court of Arkansas
    Opinion delivered October 14, 1999

      Bill Luppen, for appellant.

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   Lavenski R. Smith, Justice.

Appellant, Sylvester Richards, brings this interlocutory appeal from the Lonoke County Circuit Court’s denial of Richards’s motion to dismiss. Richards’s contends that the criminal prosecution should have been dismissed for an alleged violation of the speedy-trial rule. We dismiss the appeal.

Facts

On August 9, 1997, Officer Roger Shelton of the England Police Department stopped Sylvester Richards in his vehicle because Officer Shelton recognized Richards as someone who had several outstanding warrants in England. Officer Shelton advised Richards of his rights. Immediately thereafter, Richards fled the scene. Officer Shelton subsequently impounded the car and, upon a routine inventory search, discovered what later tested to be a rock of cocaine in the floorboard of Richards’s car.

On August 27, 1997, the Lonoke County prosecutor filed a felony information against Richards for possession of a controlled substance, a Class C felony. On that same day, the circuit court issued an arrest warrant listing Richards’s address as 213 North Park Street in England. However, police did not apprehend Richards until over one year later on September 9, 1998. Police arrested Richards in Pulaski County during a routine traffic stop. Based upon that lapse of time, Richards’s attorney filed a motion to dismiss on February 23, 1999, alleging Richards was not tried within twelve months of the filing of the information as required under Rules 28.1 and 28.2(a) of the Arkansas Rules of Criminal Procedure.

On April 13, 1999, the Circuit Court held a hearing on the motion to dismiss. The State presented Officer Shelton as a witness. Officer Shelton testified as to the discovery of the cocaine, as well as the police department’s attempts to arrest Richards. Officer Shelton testified that after the arrest warrant was issued, he attempted to serve the warrant at the address listed. Officer Shelton testified that the address on the warrant was an address th'e police department previously had for Richards. Officer Shelton testified that he attempted on several occasions to serve the warrant at that address, he asked family members who were arrested during this period if they knew where Richards was, and he also entered Richards’s name into the Arkansas Criminal Investigation Computer (“ACIC”).

On cross-examination, Officer Shelton admitted that Richards had just been released from the penitentiary days before the traffic stop, and that he did not know where Richards was living at the time he was stopped. Officer Shelton stated that the address listed on the arrest warrant was an address the police department had for Richards which could have been five or six years old. In addition, Officer Shelton testified that the people he spoke'with who lived at the address on the warrant told him the first time he went there that they did not know Richards’s whereabouts. Officer Shelton also testified that he was not sure whether the people at that address were related to Richards. Despite this fact, Officer Shelton testified that he returned several times to question these people about the whereabouts of Richards, and each time they told him they did not know where he was. Officer Shelton admitted that he did not attempt to contact the Department of Corrections to find Richards’s most current address.

At the hearing and later in an Order filed April 14, 1999, the trial court ruled that there was no violation of the speedy-trial rule. The court based its decision on the grounds that the State made reasonable efforts to find Richards, as evidenced by the England Police Department’s attempts to contact Richards at his last known address pursuant to Ark. R. Crim. Pro. 28.3(e) and by entering his name into the ACIC. Thereafter, Richards filed his Notice of Appeal on April 14, 1999. In its response brief, the State requests us to treat Richards’s appeal as though it were a petition for writ of prohibition. For the reasons stated below, we decline that request.

Interlocutory appeal

We are unable to reach the merits of Richards’s appeal because an interlocutory appeal is not the proper procedure for bringing a pretrial speedy-trial issue before us. The proper method for presentation is by petition for writ of prohibition. We adopted Ark. R Crim. P. 28.1 for the purpose of enforcing the constitutional provisions requiring a speedy trial. Mackey v. State, 279 Ark. 307, 651 S.W.2d 769 (1994). Ark. R. Crim. P. 28.1(d) notes that motions for dismissal, upon being denied by the trial court, may be presented to the Arkansas Supreme Court by petition for writ of prohibition. The rule does not authorize interlocutory appeals. Unfortunately, there are two cases which indicate that the we have treated interlocutory appeals from denials of speedy-trial dismissal motions as if they were petitions for writs of prohibition. See Lowe v. State, 290 Ark. 403, 720 S.W.2d 293 (1986) and Norton v. State, 273 Ark. 289, 618 S.W.2d 164 (1981). Subsequent to those cases is our decision in Gammel v. State, 318 Ark. 881, 890 S.W.2d 240 (1994), which holds unequivocally that there is no authority for an interlocutory appeal of the denial of a motion for dismissal on speedy-trial grounds. Clearly, there is a conflict of authority. We now resolve that conflict in favor of the plain language of Rule 28.1 and Gammel. The proper method for bringing a denial of a speedy-trial motion to our attention is by petition for writ of prohibition. All other case authority to the contrary is hereby overruled. We dismiss Richards’s appeal without prejudice.

Appeal dismissed.


author: Per Curiam.

text:
    Issac A. COLBERT v. STATE of Arkansas
    CR 99-1101
    1 S.W.3d 26
    Supreme Court of Arkansas
    Opinion delivered October 14, 1999

      Christy M. Adams, for appellant.
    No response.
   Per Curiam.

Petitioner, Isaac A. Colbert, by his attorney, Christy M. Adams, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on her part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


text:
    Patricia OSBURN v. Bryan BUSBEE d/b/a Busbee Construction
    99-1097
    1 S.W.3d 441
    Supreme Court of Arkansas
    Opinion delivered October 14, 1999

      Charles R. Chadwick, for appellant.

      Jim D. Johnson, P.A., by: Jim Johnson, for appellee.
   Per Curiam.

Appellee Bryan Busbee, d/b/a Busbee Construction (“Busbee”), filed a Motion to Dismiss the appeal of Appellant Patricia Osburn (“Osburn”) for failure to include language in her Notice of Appeal and Designation of Record that she had made financial arrangements with the court reporter for payment of the record. We dismiss Appellant’s appeal, but on different grounds.

Appellee states in his motion that this appeal originates from a Washington County Circuit Court matter in which that court ruled that he was entitled to a judgment and lien against Appellant for repairs made to certain properties owned by Appellant. The trial court entered its order on June 22, 1999, and Appellee filed a Motion for Amended Judgment or for New Trial on July 8, 1999. The trial court denied this motion in an order entered August 3, 1999. Appellant then filed her Notice of Appeal and Designation of Record on August 19, 1999.

Appellant’s Notice of Appeal was not timely filed. Appellant filed her Motion for Amendment of Judgment or for New Trial pursuant to Ark. R. Civ. P. 52 and 59 respectively. These rules require that these motions be filed within ten days after the entry of the judgment in order for the court to consider them and to toll the thirty-day time limit for filing a Notice of Appeal. See Benedict v. National Bank of Commerce, 329 Ark. 590, 951 S.W.2d 562 (1997). Here, Appellant filed her motion on July 8, 1999, sixteen days after the original order was filed. As such, Appellant’s time for filing her Notice of Appeal was not tolled by these motions. Therefore, Appellant’s Notice of Appeal, filed fifty-eight days after the trial court entered its original order with the clerk, was untimely.

Because of Appellant’s untimely filing of her Notice of Appeal, Appellant’s appeal is dismissed.


text:
    STATE of Arkansas v. Jack Gordon GREENE
    CR 96-362
    1 S.W.3d 442
    Supreme Court of Arkansas
    Opinion delivered October 14, 1999

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee/petitioner.
    No response.
   Per Curiam.

On October 15, 1992, Jack Gordon Greene was convicted in Johnson County Circuit Court of capital murder and was sentenced to death by lethal injection. On June 20, 1994, this court affirmed his conviction but reversed and remanded for resentencing. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). On February 27, 1996, Greene was resentenced to death. After Greene indicated he wanted to waive his appeals, this court remanded the case on two separate occasions for hearings to determine Greene’s competency to elect execution. Greene v. State, 326 Ark. 822, 933 S.W.2d 392 (1996) (per curiam); Greene v. State, 327 Ark. 511, 939 S.W.2d 834 (1997) (per curiam). On April 21, 1997, this court denied Greene’s motion to dismiss his appeal and ordered that a briefing schedule be set. Greene v. State, 328 Ark. 218, 941 S.W.2d 428 (1997) (per curiam). On November 5, 1998, this court again reversed and remanded the case for resentencing. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998).

On July 1, 1999, Greene was resentenced to death. On July 2, 1999, Greene filed a waiver of appeal, and the trial court entered an order directing that Greene be evaluated by the Arkansas State Hospital for the purpose of determining whether he was competent to waive appellate and postconviction review and to elect execution. Dr. Charles H. Mallory, Ph.D., and Dr. O. Wendell Hall, III, M.D., evaluated Greene and concluded that he was competent to elect between life and death and to knowingly and intelligently waive his appellate and postconviction remedies.

On August 19, 1999, a hearing was held in Johnson County Circuit Court. After hearing testimony from Greene, Dr. Mallory, and Dr. Hall, the trial court concluded that Greene was competent to elect execution and to waive his right to appellate and postconviction remedies. On August 20, 1999, the trial court entered an order which contained its findings:

1. Greene has the capacity to understand the choice between life and death.
2. Greene has the capacity to knowingly and intelligendy waive any and all rights to appeal his sentence of death.
3. Greene has the capacity to knowingly and intelligendy waive his rights to postconviction relief under Ark. R. Crim. P. 37 and the capacity to knowingly and intelligently waive his right to have counsel appointed to represent him for purposes of appeal, as well as, postconviction relief under Ark. R. Crim. P. 37.5.
4. Greene did, in open court, freely and voluntarily waive his rights to appeal his sentence of death and clearly demonstrated the capacity to understand the choice between life and death and unequivocally expressed his desire to waive all appeals in order that the death sentence be carried out.
5. Greene is clearly competent to waive his right to postconviction remedies under Ark. R. Crim. P. 37, including his right to an attorney under Rule 37.5 and understands the legal consequences of such waiver.
6. Greene did, in open court, freely and voluntarily, make a knowing and intelligent waiver of those rights, including his right to an attorney under Rule 37.5 and clearly understood the legal consequences of his waiver.

The State now petitions this court for a writ of certiorari for the purpose of accepting the record filed herein and for the further purpose of affirming the trial court’s findings. We grant the petition for writ of certiorari and hold that the trial court’s findings are supported by the transcript of the hearing held on August 19, 1999, and the record in this matter. We affirm the trial court’s findings, as set out above.

APPENDIX Rules Adopted or Amended by Per Curiam Orders


text:
    IN RE: MANDATORY CONTINUING EDUCATION for CERTIFIED COURT REPORTERS
    Supreme Court of Arkansas
    Delivered June 17, 1999
   Per Curiam.

By per curiam order of April 8, 1999, we adopted a mandatory continuing education requirement for certified court reporters (Reporters). We appointed the Director of the Office of Professional Programs (Director) as administrator. The Board of Certified Court Reporter Examiners (Board) and the Director propose that the reporters be divided into three groups in order to ease implementation and future administration of the program. The Board and the Director also propose that programs given from July 1, 1999, through December 31, 1999, be subject to recognition for continuing education credit. We agree.

Accordingly, reporters whose last names begin with the letters A-G will have 10 hours due from January 1, 2000, through December 31, 2000; reporters whose last names begin with the letters H-N will have 20 hours due from January 1, 2000, through December 31, 2001; and, reporters whose last names begin with the letters O-Z will have 30 hours due from January 1, 2000, through December 31, 2002. The Board is authorized to adjust the initial reporting deadlines for individual court reporters, during the implementation phase only, to avoid manifest injustice such as a substantial discrepancy between the State deadline and a national court reporter organization continuing education deadline. After the implementation period, each group of reporters will be subject to the thirty (30) hour requirement every three years, which will begin at the end of their respective initial reporting periods. Further, the Board, or an accreditation committee appointed by the Board, may approve continuing education hours acquired between July 1, 1999, and December 31, 1999.


text:
    IN RE: RULE PROVIDING for CERTIFICATION of COURT REPORTERS
    Supreme Court of Arkansas
    Delivered June 17, 1999
   Per Curiam.

We hereby amend, effective immediately, Section 1 (B) of the Rule Providing for Certification of Court Reporters to read as follows:

SECTION 1. MEMBERS OF THE BOARD.

A.....
B. Members shall be appointed to serve a three year term and are eligible to be appointed to a second three year term. A member whose term has expired shall continue to serve until a successor is appointed and qualified. The Court shall fill any vacancy by appointing a member for the duration of an unexpired term and may remove any member for cause. A member who has been appointed to complete an unexpired term shall be eligible for reappointment to serve two terms of three years each.
C,


text:
    IN RE: RULES GOVERNING PROFESSIONAL CONDUCT
    98-1369
    Supreme Court of Arkansas
    Delivered June 18, 1999
   Per Curiam.

On May 21, 1999, we delivered a per curiam acknowledging that the Pulaski County Bar Association and the Arkansas Bar Association have an interest in initiating a Lawyers-Helping-Lawyers Program, and that the respective bar associations were in the process of addressing similar programs in other jurisdictions. We further indicated a willingness to work with the associations to schedule hearings (informal or formal) to permit interested parties to submit their studies, views, or proposals. The court also requested the Professional Conduct Committee to work on this subject matter so it can make suggestions and recommendations.

On June 4, 1999, the Pulaski County Bar Association (apparently with the Arkansas Bar Association’s support) has filed an amended petition wherein the Pulaski County Bar Association requests us to adopt proposed additions to rules 1.6 and 8.3 of the Arkansas Rules of Professional Conduct. The recommended additions provide the confidentiality that the associations submit is needed in order to adopt an effective Lawyers Assistance Program. The suggested changes and additions apparently emanate from a workshop held by the Arkansas Bar Association on May 20 and 21, 1999. A copy of the amended petition has been forwarded to the Professional Conduct Committee, and we request that the Committee respond with its studied remarks and recommendations, if any.

Before acting on the Pulaski County Bar Association’s amended petition and recommended rule changes, the court requests that the moving parties submit their full proposal regarding the type of Lawyer Assistance Program they intend to implement and submit to this court for approval. If that proposal includes the suggested participation, financial or otherwise, of this court, the associations should delineate the nature and level of support expected of the court. If funding is needed, the associations should not only provide the projected total amount needed for the program, but also set out the expected cost items needed to be underwritten. Preferably, the associations can reduce those matters to written form, and a meeting can be scheduled thereafter to discuss these matters.