text:
    Jeannette HIRSCH and Patricia HIRSCH v. T. J. PATTERSON III, et al
    80-80
    601 S.W. 2d 879
    Supreme Court of Arkansas
    Opinion delivered July 7, 1980

      Gaughan, Barnes, Roberts, Howell & Laney, for appellants.

      Spencer, Spencer & Shepherd, for appellees.
   Richard L. Mays, Justice.

In a suit between cotenants over title to 93 acres of wild and unimproved timber land, the chancellor quieted title in appellees on their claim of adverse possession. The primary question raised by appellants on appeal is whether the chancellor’s finding of adverse possession is against the preponderance of the evidence. We affirm the chancellor’s decision since we find sufficient evidence to support it.

Adverse possession is a rule of law which operates to transfer title to real property from the record owner to one whose possession is under a claim of title and, for seven years, is actual, open, visible, notorious, continuous and hostile to the record owner’s title and the world at large. Utley v. Ruff, 255 Ark. 824, 502 S.W. 2d 629 (1973). Since possession by a cotenant is not ordinarily adverse to other cotenants, each having equal right to possession, a cotenant must give actual notice to other cotenants that his possession is adverse to their interests or commit sufficient acts of hostility so that their knowledge of his adverse claim may be presumed. Woolfolk v. Davis, 225 Ark. 722, 285 S.W. 2d 321 (1955); Johnson v. Johnson, 250 Ark. 457, 465 S.W. 2d 309 (1971). The statutory period of time for an adverse possession claim does not begin to run until such knowledge has been brought home to the other cotenants. Gibbs v. Pace, 207 Ark. 199, 179 S.W. 2d 690 (1944). While payment of taxes over a long period of time by a cotenant does not alone give title to him, it may raise a strong presumption of his adverse claim. Brashear v. Taylor, 109 Ark. 281, 159 S.W. 1120 (1913). Although there is no “hard and fast” rule by which the sufficiency of an adverse claim may be determined, courts generally look to the totality of the circumstances, considering such factors as: “[the] [Relationship of the parties, their reasonable access to the property and opportunity or necessity for dealing with it, their right to rely upon conduct and assurances of the tenant in possession, kinship, business transactions directly or incidentally touching the primary subject matter, silence when one should have spoken [and] natural inferences arising from indifference . . Linebarger v. Late, 214 Ark. 278, 282, 216 S.W. 2d 56 (1948).

Appellants, Jeannette and Patricia Hirsch, are the wife and daughter of Henry Hirsch who first acquired some ownership in the subject property in 1921 but acquired an undivided one-third interest in 1947. In I960, Henry Hirsch conveyed an undivided three-twentieth of his interest to his wife, Jeannette Hirsch, and left the remainder by will to his daughter, Patricia Hirsch, upon his death in 1973. Appellees are the children and grandchildren of Judson Patterson who acquired an undivided two-thirds interest in the 93 acres in 1920. In 1939, Judson Patterson died, leaving his undivided two-thirds interest to his wife for her lifetime, and the remainder to his surviving four children, one of whom died in 1966, leaving two children surviving him. Judson Patterson’s wife died in 1971.

Neither the Pattersons nor the Hirschs ever lived on the property or developed it for agricultural or commercial purposes. The Pattersons have paid the taxes on the property since 1941 without any assistance from the Hirschs. Even before 1941, when the property was forfeited to the state because of delinquent taxes, members of the Patterson family either redeemed the property directly or acquired the interest of one who had obtained a tax deed to it. The Pattersons occasionally used the property for family picnics and exercised control over the property by expressly authorizing its use by scouting groups and a neighboring church. The Pattersons executed oil and gas leases concerning the property and sold timber wtihout dividing the proceeds with the Hirschs. The property became generally known in the community where it was situated as the “Patterson Estate.”

When Henry Hirsch approached certain members of the Patterson family in the late 1950’s and early 1960’s about selling his one-third interest and leasing mineral rights to the property, the Pattersons advised him that they felt he no longer held an interest in the property. Despite this assertion, Henry Hirsch not only made no effort to reimburse the Pattersons for his proportionate share of the past taxes, but he continued to abstain from participating in the future tax payments. Although Henry Hirsch was known as an excellent businessman, who kept accurate business records, his daughter, serving as executrix of his estate, was unable to discern from such records Mr. Hirsch’s ownership in the 93 acres when preparing an inventory of his estate after his death in 1973.

In light of the total circumstances of this case we cannot say that the evidence preponderates against the chancellor’s finding. Although such acts of ownership as paying the property taxes on the property for over 35 years, or executing oil and gas leases to the property, or acquiring the entire proceeds from the sale of timber, or granting permission to various groups to use the property, by themselves, do not establish an adverse ownership as to the other cotenants, yet when taken together with Henry Hirsch’s silence for at least 15 years after being informed by members of the Patterson family that they felt he no longer had an interest in the property, these acts provide ample evidence to support the finding of adverse possession. While there is some evidence that one of the Patterson family members recogniized the Hirschs’ interest in the property in a letter to appellants in 1976, such recognition by one family member after the statutory period for adverse possession has elapsed does not divest a title once acquired by adverse possession. See Hart v. Steinberg, 205 Ark. 929, 171 S.W. 2d 475 (1943).

Affirmed.

Fogleman, C.J., Hickman and Stroud, JJ., dissent.


source: Caselaw Access Project

author: Richard L. Mays, Justice.

license: Public Domain

text:
    Henry C. COULTER v. STATE of Arkansas
    CR 80-55
    597 S.W. 2d 814
    Supreme Court of Arkansas
    Opinion delivered July 7, 1980

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Chief Deputy Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davis Scott, Asst. Atty. Gen., for appellee.
   Richard L. Mays, Justice.

Appellant, Henry C. Coulter, was sentenced to 32 years imprisonment as a habitual criminal, after a jury found him guilty of burglary and theft of property. Challenging only the theft of property conviction on appeal, appellant contends that the trial court erred in failing to submit the proper verdict forms to the jury. We affirm without reaching the merits of his argument since appellant failed to raise the issue in the trial court.

We have consistently held that objections as to verdict forms and jury instructions must be asserted in the trial court before they will be considered on appeal. See, e.g. Spears v. State, 264 Ark. 83, 568 S.W. 2d 492 (1978); Rowland v. State, 263 Ark. 77, 562 S.W. 2d 590 (1978); Goodwin v. State, 263 Ark. 856, 568 S.W. 2d 3 (1978), and Fauna v. State, 265 Ark. 934, 582 S.W. 2d 18 (1979). We disregard a failure to object in the trial court only when the error is so great that it could not have been cured by the trial judge and only then to prevent a clear miscarriage of justice. Smith v. State, 268 Ark. 282, 595 S.W. 2d 671 (March 24, 1980). We perceive nothing that we have said in the past to have relaxed the application of this principle. Obviously, if appellant had objected to the verdict forms or the instructions below, the trial judge could have corrected any error.

Affirmed.


text:
    J. B. SMITHEY v. STATE of Arkansas
    CR 80-51
    602 S.W. 2d 676
    Supreme Court of Arkansas
    Opinion delivered July 7, 1980
    Rehearing denied August 25, 1980

      Vincent E. Skillman, Jr., of Skillman & Darrett, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   Allen W. Bird II, Special Chief Justice.

J. B. Smithey was convicted in Mississippi County Circuit Court of public servant bribery in violation of Section 41-2703 (Ark. Stat. Ann. 1977 Repl.) He was sentenced to serve five years in the state penitentiary. His appeal raises three issues. First, he argues that the trial court should not have allowed the State to introduce tape recordings of conversations between himself and H. P. Cash or himself and John Cash. Second, he argues that the information filed against him in using the word “conspire” allowed the State to use evidence against him which otherwise would have been inadmissible. Third, Smithey argues that the testimony of a police officer who overheard statements made by him with the use of radio transmission should not have been admitted at the trial.

The testimony introduced at the trial tended to show that in August, 1978, H. P. Cash was charged with two felonies in Mississippi County. After his arrest, H. P. Cash went to see a deputy prosecutor and agreed to cooperate for a lenient sentence. He was told to keep in touch with the local authorities and help whenever he could. Sometime later, H. P. Cash was told by Smithey that what Cash needed was a “fixer.” Smithey explained that Cash needed to go see “the man” and Smithey could arrange it. Smithey explained to H. P. Cash that “the man” was Henry Swift, who at that time was deputy prosecuting attorney for the Osceola District of Mississippi County, Arkansas. Several days after the meeting with Smithey, H. P. Cash returned to the grocery store and was told that “the man” wanted $25,000 to go along with the arrangement that H. P. Cash had already made with the deputy prosecutor in another county.

Later after entering a plea of not guilty, Cash was advised by Swift to go see Smithey who would tell him what to do. Subsequently, H. P. Cash went to see the deputy prosecutor for Crittenden County and told him of the conversations with Smithey and Swift. The deputy prosecutor called in police officers who made arrangements to place a microphone on Cash and in his truck. Following other conversations between Cash and Smithey, it was agreed that $10,000 would be paid in November, 1978, and $15,000 in January, 1979.

Subsequently, H. P. Cash changed his plea to guilty was sentenced and placed in jail. John Cash went to see Henry Swift and asked why H. P. Cash was placed in jail. Swift told John Cash not to worry that he, Swift, would have him out the next day. A microphone was placed on John Cash’s body by the state police and he went to the defendant’s store. The defendnat told John Cash that he, Smithey, would speak to Henry Swift to find out what was going on. John Cash offered $5,000 then and the defendant replied that would help. This conversation was recorded and the tape admitted into evidence at the trial.

Several days later there was another meeting at the defendant’s store. John Cash had a microphone placed on his body again and the conversation between him and the defendant was recorded. During this conversation, the defendant told John Cash to bring $5,000 in a sack to the store. Before going to the store, John Cash called Henry Swift on a phone that was tapped. He asked Swift if dealing with the defendant was all right. Swift assured him it was, and said to go ahead and arrange for the $5,000. He said he would go easy on the rest until he could get H. P. Cash paroled into John Cash’s custody. John Cash, with a microphone on his body, went to the store and handed the defendant the sack which the defendant put on a counter behind him. Moments later the state police came into the grocery store, arrested the defendant and picked up the cash.

The defendant claims that the tape recordings of conversations between himself and John and H. P. Cash should be suppressed as having been obtained in violation of his right against unreasonable search and seizure as guaranteed in the Fourth and Fourteenth Amendments to the United States Constitution and in support of this claim, he relies on Katz v. United States, 389 U.S. 347 (1967). In Katz the FBI had attached an electronic listening and recording device to the outside of a public telephone booth from which Katz made telephone calls. The government claimed that since there was no physical penetration of the booth the defendant had no constitutional protection. The Supreme Court said that the Constitution protects people, not places, and the fact that there was no physical penetration was no longer relevant. The Court held that wherever a man may be, he will remain free from unreasonable search and seizure and that the attaching of the microphone to the phone booth violated his constitutional expectation.

The question of electronic eavesdropping was again presented in United States v. White, 401 U.S. 745 (1971). In that case, the trial court admitted the testimony of agents who conducted electronic surveillance. The testimony was of conversations overheard by warrantless electronic eavesdropping by government agents by means of a transmitter which an informer consented to wear during his meetings with the defendant. The Court of Appeals had reversed the lower court in holding that the testimony was not admissible relying on Katz. The Supreme Court disagreed saying that it could see no constitutional difference between a government informant writing down his conversation with a defendant for official use in testifying concerning them as had been approved in Hoffa v. United States, 385 U.S. 293 (1966), and transcribing his conversations with the defendant by either simultaneously recording them on his body or transmitting them to a recording device or other agent. The Court said:

One contemplating illegal activities must realize the risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his. In terms of what his course will be, what he will or will not do or say, we are unpersuaded that he would distinguish between probable informers on one hand and probable informers with transmitters on the other (p. 752).

We believe that White states the rule to be followed and that the testimony of H. P. Cash, John Cash and the police officers concerning tape recorded conversations with the defendant and the recordings and transcripts were properly admitted by the trial court. When Smithey chose to have conversations with H. P. and John Cash, he had no constitutional right to protection of these conversations under the circumstances. Our state constitution requires no different result. See Kerr and Pinnell v. State, 265 Ark. 738 (1974).

The defendant further claims that there was not a proper foundation laid by the testimony of the police officer who heard conversations between the defendant, H. P. Cash or John Cash as well as conversations between Henry Swift and H. P. Cash or John Cash to introduce the recordings and transcripts. The defendant urges that since this evidence is not admissible, then there is not sufficient further evidence to sustain a verdict in the case. The testimony of the police officer in each case where a tape recording of conversations was admitted into evidence shows that he was physically present and observed the informant who had the microphone on his body in the presence of the one whose testimony was recordded and admitted into evidence. He also testified that a video tape recorder was used to visually record the movements of the speakers whose conversation was recorded. He testified that in each case he overheard the conversation transmitted electronically and simultaneously observed the action of the speakers, and that upon his review of the audio tapes found that they were the same as what he had heard at the time the conversations occurred. In addition, H. P. Cash and John Cash both testified that they had listened to the tape recordings and had reviewed the transcript of the conversation and the voices were recognizable to them as those of the defendant and Henry Swift. Uniform Rules of Evidence, Rule 901, Ark. Stat. Ann. § 28-1001 (1979) Repl.) states that authentication or identification is satisfied by the presentation of evidence sufficient to support a-finding that the matter in question is what its proponent claims. By way of illustration it indicates that the identification of a voice whether heard firsthand or through mechanical or electronic transmission or recording may be based upon opinion upon hearing the voice at the time under circumstances connecting it with the alleged speaker. In the recent case of Williamson and Morris v. State, 267 Ark. 46 (1979), we had occasion to review testimony introduced by the State of two conversations and a typewritten transcript made from them. In that case, the police officer testified that he reviewed the transcripts while he listened to the tapes and that both were accurate recording of the conversations. The argument was raised that the State did not call as witnesses the two officers who manned the recording device. We found that the requirements of Rule 901 had been satisfied even without the testimony of the two officers who had manned the recording device at the time the recording was made. In the case at hand, we find that the testimony of participants to the conversation as to the accuracy of the tapes and the transcript, the testimony of a police officer who actually heard the conversations occur transmitted to him electronically, who had reviewed the written transcript as compared to the tape recording, and the review of the video tape recording of the conversation satisfies the requirements of Rule 901 and the testimony was admissible. The evidence supplied by the tape recordings, transcripts and video tape recordings are sufficient to connect the defendant with his alleged co-conspirator, Henry Swift, such as to sustain a verdict of guilty in this case. See also Gustafson v. State, 267 Ark. 278 (1979).

The defendant also complains that the use of the word “conspire” without a specific charge of criminal conspiracy, permitted the State broader reign to offer testimony which it contended would show overt acts o r statements made in connection with the conspiracy. In following this argument to its logical conclusion, the defnendant argues that without using the word “conspire” the State would not have the same broad latitude in introducing evidence as it did in using that word in the information.

The argument calls into question the applicability of Uniform Rules of Evidence Rule 801(d)(2)(v), Ark. Stat. Ann. § 28-1001 (Repl. 1979). That rule provides that testimony about an out of court statement by a co-conspirator of a party during the course and furtherance of a conspiracy is not hearsay. Actually, it was irrelevant whether the State used “conspire” or not. Our uniform rules are based upon the federal rules of evidence and therefore cases interpreting the federal rules are helpful in analysis of the Arkansas rules. The federal cases make clear that there need not be a conspiracy count in the indictment to make the provisions of Rule 801 applicable. In United States v. Coppola, 526 F. 2d 764 (10th Cir. 1975) that court held that a co-conspirator’s statements were admissible where the conspiracy was not contained in the indictment but was proved at trial through independent evidence. In United States v. Trowery, 542 F. 2d 623 (3rd Cir. 1976) cert. den. 429 U.S. 1104, the court said that the absence of a conspiracy count has not bearing on the court’s determination of the competency of co-conspirator evidence. United States v. Williams, 435 F. 2d 642 (9th Cir. 1970) cert. den. 401 U.S. 995, held that admissions and statements of a co-defendant are admissible as against the other even in the absence of a conspiracy charge where there is independent evidence of a concert of action; however the rule is not confined to those who are co-defendants at the same trial. We have had occasion to review the question of admissibility of statements of co-conspirators prior to the adoption of the Uniform Rules. In Catón and Headley v. State, 252 Ark. 420 (1972), we held that there must first be prima facie evidence of the existence of a conspiracy before acts and declarations of conspirators during the course thereof are, admissible in evidence against their co-conspirator. See also Cantrell v. State, 117 Ark. 233 (1915). We believe that sufficient evidence was presented in the trial of the defendant to prove a conspiracy and to lay the foundation for the admissibility of statements made by the co-conspirator of the defendant, Henry Swift. We also agree with the federal cases mentioned above and hold that it is irrelevant whether the State uses the word “conspire” or not or in fact alleges a conspiracy since the basis for admissibility of the evidence objected to by the defendant is not the wording of the indictment or information but the independent evidence presented to prove that a conspiracy existed. In this case such evidence was present. We should also point out that the crime of bribery cannot occur without at least two parties being involved, one offering and one receiving; therefore, the crime alleged would necessarily involve conspiracy and thus call into play Rule 801(d)(2)(v).

Finally, the defendant claims that the only evidence that would connect him with the crime of public servant bribery comes from his co-conspirators or accomplices, H. P. and John Cash. Ark. Stat. Ann. § 43-2116 (1977 Repl.) provides:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corrobation is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.

The evidence introduced by the State other than testimony of an accomplice included the statements by the defendant which were recorded and the recordings and transcripts introduced into evidence; the testimony of the prosecutor concerning statements made by Henry Swift to H. P. Cash in his presence advising Cash to go see the defendant; the testimony of an employee of the telephone company concerning various phone calls between the defendant and Henry Swift; the video tape recordings of various meetings between H. P. Cash and the defendant and John Cash and the defendant; the testimony by the police officers upon the arrest of defendant and finding the money near the defendant and the tape recordings of that conversation; the still photographs of various meetings between H. P. Cash and the defendant and John Cash and the defendant; and the recorded phone calls and conversations between H. P. Cash and Swift and John Cash and Swift. This evidence and other circumstantial evidence in the record corroborate the direct testimony of H. P. Cash and John Cash.

We find no reversible error in the record of the trial and therefore affirm the judgment.

Fogleman, C.J., not participating.


author: Core, Ben, Special Justice, John A. Fogleman, Chief Justice,

text:
    Carl Fax ADAMS v. STATE of Arkansas
    CR 79-189
    601 S.W. 2d 881
    Supreme Court of Arkansas
    Opinion delivered July 7, 1980

      Mickey Buchanan, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Core, Ben, Special Justice,

this appeal requires this Court to decide several questions relating to the interpretation and application of the Code of Judicial Conduct. That Code was promulgated by the House of Delegates of the American Bar Association on August 16, 1972, and was declared by this Court to constitute proper standards for conduct of the judiciary for the State of Arkansas. This was done by per curiam order (Justice Byrd dissenting), 255 Ark. 1075, 493 S.W. 2d 422 (Appendix) (1974). We have since considered the Code in two decisions, Edmonson v. Farris, 263 Ark. 505, 565 S.W. 2d 617 (1978) (reversed on other grounds) and Braswell v. Gehl, 263 Ark. 706, 567 S.W. 2d 113 (1978) (reversed on other grounds).

The circumstance which makes the Code pertinent in this case is that the Appellate, Carl Fax Adams, was charged by prosecuting attorney information with two serious felonies, arraigned on the same and pleaded guilty, in a proceeding wherein the prosecuting attorney was the nephew of the presiding judge. The nephew-uncle relationship is one which falls within Canon 3C and the Circuit Judge did not disqualify and neither did he follow the procedure prescribed by Canon 3D. No request was ever made at any stage of the proceeding by the Appellant that the Judge disqualify or comply with Canon 3D and no objection was made at any stage to his failure to do so.

We hold that Canon 3C is applicable in criminal cases as well as civil cases, that it is applicable at the arraignment stage of a criminal proceeding, that it applies even though the prosecuting attorney and circuit judge each is a duly elected public official, that no request to disqualify and no objection for failure to disqualify is necessary to be made either by a trial attorney or by a party representing himself, that the trial judge must take the initiative to disqualify or, in the alternative, to comply with the procedure set out in Canon 3D, that this Court can, on its own initiative, examine the record to notice compliance or noncompliance, and that failure to comply is reversible error. Accordingly, we reverse and remand this case with instructions that the Appellant be arraigned again on the charges, such proceedings and subsequent proceedings to be consistent with this opinion.

Canon 3C provides in pertinent part as follows:
C. DISQUALIFICATION.
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
* * * *
(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
# # # #
(ii) is acting as a lawyer in the proceeding;

In our opinion in Edmonson v. Farris, supra, which was rendered May 22, 1978, we announced the following caveat:

“In cases arising in the trial court after this date, we construe our rule to require the judge to note his disqualification without any request by a trial lawyer.”

If a party is not represented by a lawyer, then our statement would necessarily be applicable to the party and no such request would be required of him.

In Edmonson v. Farris, supra, we noted the alternative to disqualification provided in Canon 3D, which reads:

A judge disqualified by the terms of Canon 3C(l)(d) may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge’s participation, all agree in writing that the judge’s relationship is immaterial or that his financial interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.

As previously noted, appellant never at any time requested the trial judge to comply with Canon 3C or 3D and never at any time objected to his failure to do so. Appellant was not represented by an attorney at the arraignment, but was represented by an attorney at the hearing on his motion for postconviction relief. Neither the appellant nor his attorney made any request for compliance with Canon 3C or 3D at that hearing where, again, even though the Circuit Judge was different, the relationship of nephew-uncle still existed. Neither was any objection made by the appellant or his attorney to failure to comply with Canon 3C or 3D at the hearing on the motion for postconviction relief. Appellant is represented by a different attorney on this appeal but still no objection has been made on the appeal to the failure of the trial judge at the arraignment to comply with Canon 3C or 3D, although an objection is made for the first time on his appeal to the failure of the circuit judge who presided at the hearing on the motion for postconviction relief under Rule 37, Arkansas Rules of Criminal Procedure, to comply with Canon 3C.

We regard these failures to request compliance and object to non-compliance as being immaterial because the sense of Canon 3C is that the judge should take the initiative under Canon 3C, and also under Canon 3D if the judge elects to take advantage of the Canon 3D procedure.

The commentary following Canon 3D makes a point of the fact that the procedure therein set out is designed to “minimize the chance that a party or lawyer will feel coerced into an agreement” that “the judge’s relationship is immaterial.” If requiring a request to disqualify is coercive then likewise requiring an objection would be coercive. Thus, if a request to disqualify is not required then neither should an objection for failure to disqualify be required. If no objection is required then it follows necessarily that the point of failure to comply is preserved for appeal even without an objection. It then further follows that when an eappeal is lodged in this court under any appropriate rules providing therefor and this court finds from the record that there were circumstances requiring compliance with either Canon 3C or Canon 3D and that there was a failure to do so, then this court must notice the same sua sponte.

The fact that the prosecuting attorney and circuit judge each is elected by the voters of the judicial district does not alter the fact that the prosecuting attorney appears as attorney for the state and that the state is an adversary party to the defendant in criminal cases. Thus we can find no reason to distinguish cases where the attorney client relationship comes into being by popular election from those where it arises by private employment.

All that we have said concerning the taking of the initiative by the trial judge on Canon 3C applies with equal force as to Canon 3D. If a judge disqualifies under Canon 3C then, of course, Canon 3D never comes into play. However, if a circumstance arises to which Canon 3C is applicable, then the judge must disqualify on his own initiative or must comply with Canon 3D on his own initiative. In Edmonson v. Farris, supra, we stated that this rule applied “in cases arising in the trial court after this date,” meaning the date of the opinion in that case, which was May 22, 1978. The record discloses that the arraignment involved in this case occurred October 27, 1978, which is, of course, after the effective date and within the caveat of Edmonson v. Farris, supra.

The two prior decisions of this court construing Canon 3C were civil cases. This is a criminal case. We regard that as immaterial. Since criminal cases ordinarly involve life or liberty or both, with civil cases ordinarily involving property and with life or liberty ordinarily being considered more precious than property, if the rule is applicable to civil cases then a fortiori it must also be applicable to criminal cases.

If any objection should be made that this holding effectively prescribes a new rule of criminal procedure, nevertheless this court is authorized to prescribe rules of pleading, practice or procedure with respect “to any and all proceedings in criminal cases.” Act 470 of 1971, compiled as Arkansas Statutes (1947) Annotated, Sections 22-242 through 22-244 (1979 Cumulative Pocket Supplement, 1962 Replacement Volume 3).

It is not required that the proceedings on a criminal charge have progressed to the point of commencing a trial before compliance with Canon 3C or 3D is required. An arraignment, even though it is an initial part of a criminal judicial proceeding, nevertheless determines subsequent procedures for ascertaining innocence or guilt and is a critical stage of the proceeding and should be preceded by compliance with Canon 3C or 3D.

While we are reversing this case on an error which we find to have been made by The Honorable Bobby Steel, now deceased, who served the Ninth Judicial Circuit as Circuit Judge for 24 years, we are constrained to say that we wish to imply no criticism of Judge Steel. The rule under which we reverse was not only new at the time of this arraignment but had never been applied in a criminal case.

It follows that a case must be and is hereby reversed and remanded with instructions that the appellant be again arraigned on the two charges of Battery in the First Degree and Arson and for further proceedings consistent with this opinion.

Fogleman, C.J., dissents.

John A. Fogleman, Chief Justice,

dissenting in part. Appellant’s petition for post-conviction relief was based upon two grounds, i.e., that appellant was not afforded the right to have an attorney at his arraignment when he entered a plea of guilty and that he was not advised of the elements of the offense of first degree battery and arson. On these points, he introduced a transcript of the proceedings during which he was arraigned, entered a plea of guilty and was sentenced. He has never in the circuit court or this court contended that his conviction should be set aside because of the disqualification of the judge who presided at his arraignment and sentencing. The record clearly reflects a knowing and intelligent waiver of the right to counsel, if it is ever possible for one charged with a felony to waive counsel (and, of course, it is). It may well be that no objection is necessary to raise the question of potential disqualification of a trial judge under the circumstances prevailing here, in order to raisejhe question on appeal, but this is a post-conviction proceeding in a case in which no appeal was taken. Nothing in Rule 37 permits this kind of post-conviction collateral attack. Rule 37.1, Rules of Criminal Procedure, states the grounds for post-conviction relief, they are:

(a) that the sentence was imposed in violation • of the Constitution and laws of the United States or this state; or
(b) that the court imposing the sentence was without jurisdiction to do so; or
(c) that the sentence was in excess of the maximum authorized by law; or
(d) that the sentence is otherwise subject to collateral attack;

We have never held that disqualification of a judge in a case deprives the court of jurisdiction or renders a judgment entered while he" Was:presiding subject to collateral attack, unless the judge'himself is interested in the “event of the cause.” Ladd v. Stubblefield, 195 Ark. 261, 111 S.W. 2d 555. Even there we said that the act of the judge was not invalid where he exercised no discretion. In Morrow v. Watts, 80 Ark. 57, 95 S.W. 988, we said that disqualification of judges “for near relationship” was not ground to avoid the judgment. In Byler v. State, 210 Ark. 790, 197 S.W. 2d 748, on direct appeal, we held that the disqualification was ground for a new trial, when the defendant discovered the disqualifying relationship after trial and made it one of the grounds for his motion for new trial. Nothing in that opinion indicated that there was a void judgment or any want of jurisdiction.

It is generally held that, at common law the judgment of a disqualified judge is only voidable, not void. Annot. 5 ALR 1588 (1920), 73 ALR 2d 1239, 1272 (I960).

Rule 37 proceedings are closely related to, and a substitute for, habeas corpus. A majority of the decided cases have held that disqualification of a judge does not affect jurisdiction, but is in the nature of an error or irregularity otherwise remedial, and thus not a ground for release on habeas corpus. See Annot. 124 ALR 1079 (1940).

If, indeed, the disqualification of a judge renders the judgment entered by him void, as the majority has obviously held, I do not see how this court can uphold any judgment entered by Judge Bobby Steel in a criminal case during the time his nephew was prosecuting attorney, in the absence of an express waiver. A petitioner’s lack of diligence is proper for consideration in determining whther he is entitled to post-conviction relief, but if the trial court had no jurisdiction to render a judgment, nothing can make it valid and post-conviction collateral attack would not even be barred by the three-year limitations on such petitions. A void judgment is a void judgment and it cannot be retrospectively repaired.

I would hold that Judge Don Steel was disqualified to hear the petition for post-conviction relief because the question was properly presented on appeal. I would remand the proceeding to the trial court for appropriate hearing by another judge.


text:
    George Henry THORNE v. STATE of Arkansas
    CR 79-152
    601 S.W. 2d 886
    Supreme Court of Arkansas
    Opinion delivered July 7, 1980

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

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Dept. Atty. Gen., for appellee.
   William C. Bridgforth, Special Associate Justice.

Appellant was found guilty of aggravated robbery and, subsequent to a finding by the jury that Appellant had been convicted of four or more previous felonies, was sentenced to life imprisonment in the State Penitentiary. He seeks reversal of his conviction raising 11 points. This Court is of the opinion that only one ground has merit. The appellant seeks reversal of his conviction on the ground that the trial judge erred in denying his motion for a continuance to obtain new counsel or, alternatively, to enable him to adequately prepare a defense pro se. We find that the trial court abused its discretion in not granting a continuance and, therefore, reverse and remand.

Thorne was charged with aggravated robbery by employing physical force upon an employee of Wirt’s Jewelers with the purpose of committing a theft and having in his possession a deadly weapon. The felony information further stated that Thorne had been convicted of at least four or more prior felonies and that his sentence should be increased as provided for in Ark. Stat. Ann. § 41-1001 (Repl. 1977). The information filed September .28, 1978, charged that the offense occurred on September 5, 1978. Thorne was arraigned October 19, 1978, entered a plea of not guilty, and the case was set for trial on December 15, 1978. Counsel had initially been retained by Thorne but thereafter such counsel withdrew from the case because of a conflict of interest which had developed. Thereafter, the Public Defender for the Pulaski Circuit Court was appointed to represent Thorne. On November 22, 1978, on motion of the defendant, the trial was reset until April 5, 1979, as a result of notice being given pursuant to Ark. Stat. Ann. § 41-604 (Repl. 1977) that the defendant intended to rely on the affirmative defense that at the time of the alleged conduct he lacked capacity, as a result of mental defect or disease, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct. Thereafter, Thorne was committed to the State Hospital for examination. On January 29, 1979, the trial date was advanced to February 16, 1979, and on January 30, 1979, the case was reset to February 28, 1979. On February 12, 1979, a pre-trial conference was held and the February 28, 1979, date for trial was confirmed.

On that date, February 12, 1979, Thorne filed a pro se motion entitled “Motion to Allow Public Defender to Withdraw and to Appoint Counsel Other Than the Public Defender, or, in the Alternative, to Allow the Defendant to Proceed Pro Se” requesting that the trial be postponed until its original setting of April 5, 1979, to allow him to obtain independent counsel or, alternatively, to prepare to proceed pro se. Thorne alleged that the Public Defender had repeatedly ignored his request to file certain motions and upon inquiry the Assistant Public Defender in charge of his case had told Thorne that no such motions would be filed since the Assistant Public Defender could not afford to antagonize the judge because the judge had hired, and could fire, him. Act 279 of 1975 gives to the Circuit Judges of the Sixth Judicial District of Arkansas having criminal jurisdiction the right to create a public defender system and to provide for the compensation of such attorneys and investigators as is, in their opinion, necessary for the reasonable expenses of the office. In Pulaski County v. Adkisson, Judge, 262 Ark. 636, 560 S.W. 2d 222 (1978), this Court held that the provision for the setting of salaries to be paid without appropriation by the Quorum Court was in violation of Art. 4, Section 2 of the Constitution of Arkansas. In all other jurisdictions, the procedure for the selection and compensation of public defenders is governed by Act 996 of 1975.

It is to be noted that the pro se motion for a continuance was filed on the same day that Thorne alleges that he became aware of the inherent conflict between the Public Defender’s Office and the Court. No response to that motion for a continuance was filed by the State and the motion was not taken up by the Court until February 28, 1979, the date all were assembled for trial. On the morning of trial, Thorne reported to the Court that he and his mother had been in contact with an attorney in Pulaski County since the motion for a continuance had been filed and, as was confirmed by the Assistant Public Defender, this attorney had indicated that he was going to be in touch with the Court to see if he could get a continuance and that if such a continuance could be obtained, he would ask the Public Defender’s Office to be relieved and that he be substituted as counsel of record. Efforts were made by the Court to contact this attorney and after a number of the jurors had been seated, the Court reported that a conversation had taken place with this attorney and that the attorney had agreed that, if paid a proper fee, he would represent Thorne. Thorne was asked by the Court whether or not he wanted to proceed with the trial at that time or retain the attorney. There was some question about the financial arrangements which had been made among this attorney, Thorne and Thorne’s mother but it is clear that discussions concerning this fee arrangement were underway. The Court indicated that if private counsel had been retained and had filed a motion for a continuance ot the April 5, 1979, date, that such motion would have been granted. However, the Court concluded that fee arrangements had not been made, granted the portion of the motion relieving the Public Defender’s Office from the case, but denied motion for a continuance to obtain other counsel or to prepare to proceed pro se. There is no contention in the case that the Public Defender’s Office did not thoroughly prepare the case for trial, but simply that a conflict, real or imagined, existed to such an extent that Thorne had lost all confidence in the office of the Public Defender. When asked by the Court about the statement that he could not afford to antagonize the Court, the Assistant Public Defender first indicated that he did not recall making that statement, later indicated that “Well, I may have said it, but I don’t recall making it. I don’t think I said that.” and later denied the statement entirely. In any event, the Office of the Public Defender was relieved of responsibility in the case, but was told by the Court to remain in the courtroom in the event Thorne requested any assistance during the trial, and the trial proceeded with Mr. Thorne representing himself.

It should be pointed out that Thorne appeared to be articulate and to ably represent himself in the case. He claimed to be possessed of an LL.B. degree, by correspondence, from Blackstone University. The decision of this Court is not in any way affected by the education, or lack of it, the ability, or lack of it, or the competence or incompetence of the particular accused. The right to counsel is guaranteed to each accused by the Sixth Amendment to the Constitution of the United States. Though counsel can be waived, such waiver is never to be presumed.

It is clear that the question of a continuance is within the discretion of the tiral judge and not every denial of a request for more time violates due process or Constitutional mandates. Ungar v. Sarafite, 376 U.S. 575, 11 L. Ed. 2d 921, 84 S. Ct. 841 (1964); Golden v. State, 265 Ark. 99, 576 S.W. 2d 955 (1979). The burden is on the appellant to show that there has been an abuse of discretion. Cotton v. State, 256 Ark. 375, 578 S.W. 2d 235 (1979); Freeman v. State, 258 Ark. 496, 527 S.W. 2d 623 (1975). The right to choose counsel may not be manipulated or subverted to obstruct the orderly procedures of the Court or to interfere with the fair, efficient and effective administration of justice. Tyler v. State, 265 Ark. 822, 581 S.W. 2d 328 (1979). In each such situation the Court must look at the particular circumstances of the case at bar and the issue must be decided on a case by case basis. Tyler v. State, supra; Tollett v. U.S., 44 F. 2d .622 (8th Cir. 1971). It is therefore necessary to examine all of the surrounding facts and circumstances of this case.

Some of the factors to be considered include whether there was adequate opportunity for the defendant to employ counsel; whether other continuances have been requested and granted; the length of the requested delay; whether the requested delay is for legitimate reasons; whether or not the motion for a continuance was timely filed; whether or not the defendant contributed to the circumstances giving rise to the request for a continuance; whether or not the reason for the discharge of existing counsel was solely for the purpose of obtaining a continuance; whether the request is consistent with the fair, efficient and effective administration of justice; whether denying the continuance resulted in identifiable prejudice to the defendant’s case of a material or substantial nature; and in case of a pro se proceeding, where a proper waiver of counsel existed, whether or not the accused had sufficient time to prepare for his defense. No one of these factors is a prerequisite to the granting of a continuance, but these and other factors are the legitimate subject of the court’s attention when a continuance is requested.

It is the opinion of this Court that this motion for a continuance filed 16 days prior to trial on the date the defendant alleges he learned of the Public Defender’s conflict was not dilatory and was made for reasons which to the defendant seemed legitimate. The length of the delay requested seems reasonable since the defendant only asked that the case be reset for its original trial date. The Court is satisfied that the defendant did not contribute to the circumstances which gave rise to the request for a continuance nor was he apprised until the morning of trial that he would be compelled to represent himself. The trial court had indicated that if independent counsel had filed a motion for a continuance, as the defendant did here, it would have been granted. Surely, if experienced legal counsel would need a continuance to prepare adequately for the accused’s defense, Mr. Thorne, if he was unable to obtain counsel and was compelled to represent himself pro se, would be entitled to that same consideration. Thorne was incarcerated in the Pulaski County Jail the entire time since his arrest, without access to witnesses or law books and was therefore unable to prepare for his defense. The Court holds that the trial judge abused his discretion in this case in not granting Appellant’s motion for a continuance.

Even though we find no merit in the other points raised by appellant, we do find prejudice in the denial of a continuance because, if the issues had been properly presented in the trial court, there might well have been merit in some of appellant’s contentions.

The judgment is reversed.

The Chief Justice and Justice George Rose Smith, dissent because they find no abuse of discretion.


author: Ernie E. Wright, Chief Judge.

text:
    CITY OF WHITEHALL v. SOUTHERN MECHANICAL CONTRACTING, INC. and HIGHLANDS INSURANCE CO.
    CA 80-26
    599 S.W. 2d 430
    Court of Appeals of Arkansas
    Opinion delivered May 7, 1980
    Released for publication June 4, 1980

      Robert Tolson,Jr. and Jones & Petty, for appellant.

      Coleman, Gantt, Ramsay & Cox, for appellees.
   Ernie E. Wright, Chief Judge.

This is an appeal by the City of Whitehall from a judgment in favor of appellees, Southern Mechanical Contracting, Inc., hereinafter referred to as SMC, and Highlands Insurance Company. SMC brought suit against the City for $32,812.51 unpaid balance of the contract price on a construction contract with the City and $35,000.00 damages. The City denied liability and counterclaimed for liquidated damages and expenses incurred in completing the contract work. The City also sought judgment against Highlands Insurance Company, the surety on the contractor’s bond. Trial before the court without a jury resulted in judgment for SMC against the City for $43,-734.24 and dismissal of the City’s action against both appellees.

In October, 1972, SMC entered into a contract with appellant for the construction of a sewer treatment pond and five sewage pump stations for the sum of $125,554.00. The contract required SMC to begin work on or before a date to be specified in a written notice to proceed to be issued by the City, and to complete the contract within 270 consecutive days. The contract contained a liquidated damage clause providing for $110.00 damages per day against the contractor for failure to timely complete the contract.

At the pre-construction conference attended by the parties and the project engineer, it was announced the City would have all land and rights of way acquired by the time notice to proceed was issued. On December 8, 1972, the City and engineer issued notice to SMC to begin work on or before January 4, 1973. On January 3, 1973, SMC was notified by letter from the engineer that all necessary preliminaries were not complete and the prior work order was recalled. On May 23, 1973, the City and engineer issued a new notice to SMC to begin work on or before June 4, 1973.

In January, 1973, SMC had written purchase orders for the equipment for the five pump stations, but the equipment was not the pump stations described in the contract specifications. The engineer declined to approve the equipment until he could be satisfied as to the warranty and suitability of the euqipment. SMC submitted data on the alternate equipment to the engineer on March 5, 1973. Shortly thereafter in March the manufacturer’s representative met with the engineer and supplied additional data. The alternate equipment was approved by the engineer on July 6, 1973. The pump station equipment was originally to be delivered by April 30, 1973, but the manufacturer changed delivery date to late Septmeber, 1973- SMC had planned to get the stations installed during the drier summer months.

Evidence on the part of SMC was that it could not start on the sewer treatment pond in the early summer of 1973 because the City had not acquired the land site for the pond. The court order by which the City acquired the site was obtained on July 27, 1973. While waiting for the notice to proceed with the job SMC undertook other work during the spring of 1973, and the other work was not concluded until sometime in August. SMC started work on the sewer contract August 8, 1973.

Because of delayed delivery of pump equipment and wet winter weather the contractor was unable to get the pump stations installed in the ground until well into 1974. In May of 1974, when the stations were being installed SMC was notified by the engineer that station 5 would be relocated. It developed the City did not own the site where the station was to be finally located, and after the site was acquired the engineer notified SMC by letter dated July 18, 1974, that access to the site was then available and he could proceed with installation. In the letter the engineer complained of the delays and called attention SMC had allowed the pump station equipment to be damaged because of improper storage, and the equipment would have to be checked out by the manufacturer.

There was evidence SMC was unable to obtain adequate fuel on the job in the fall of 1973 because of the oil embargo which occurred subsequent to the bidding of the job. When SMC started work the engineer had not surveyed or staked out the perimeter of the sewer treatment pond, and SMC provided a bulldozer and two men to clear a right of way to enable the engineer to survey and stake the site. Progress was made on constructing the pond during the remainder of 1973 until the work had to be suspended because of rain and winter weather, and work on the pond was resumed in July of 1974.

When the pump stations were installed three phase electric power necessary to operate the stations was not extended to the stations until October, 1974. The power company would extend service to the sites only on application by the City for permanent service. By the end of May, 1974, all pump stations were in place except number 5.

There was evidence pump station number 4 was out of level and SMC had to dig it out and reset it because an anchor had broken loose from a side of the station. The anchor had been installed as directed by the specifications, and thereafter the contractor used an additional anchoring procedure over and above the specification requirements.

The engineer by letter to SMC dated June 19, 197.4, complained of lack of effort to complete the job and that the job was already 111 days overtime and liquidated damages were accruing.

On July 11, 1974 SMC responded to the engineer’s letter and pointed out it had not been paid any on the contract since January, 1974, although it had installed four stations in the ground and number 5 would have been installed had the engineer not stopped the installation because of a delayed change in the site location. The City did not own the new site. July 18, 1974, the engineer notified SMC the site for station 5 was then available. It developed the site was in a wooded area near a bluff and required substantial extra work to install. The evidence was the additional cost to the contractor was $1,467.48.

From July through October, 1974, work progressed on the oxidation pond, and sometime during the latter part of that period the engineer required a change in the bottom of the pond to allow for only six inch variation instead of twelve inches as provided in the specifications. Additional work was done by SMC to meet this new requirement, and also a new requirement for a swell to be made to the outlet structure of the pond.

Absent availability of electric power to operate the dehumidifying equipment in the pump stations, all the equipment had to be thoroughly cleaned and repainted at a cost to SMC of $4,066.90.

Three of the pump stations were started on November 27, 1974, with the engineer and manufacturer’s representative present. Relays had to be ordered for the other two stations and they arrived on December 17, and were installed on December 19, 1974. All stations were activated and run under automatic controls on December 19 and 20 with the engineer and representative of the manufacturer present.

On December 12, 1974, SMC received a letter dated December 6, 1974, from the City Attorney expressing the intent to terminate the contract if satisfactory arrangements to complete the contract were not made. The letter stated, “In the event of such termination we will again serve notice upon your surety and you.”

On December 20, 1974, the City Attorney by telephone ordered SMC off the job. SMC had received three checks from the City on October 28, 1974, as payments on the contract. These and prior checks did not cover substantial labor expenditures and SMC in June, 1974, obtained a loan in the amount of $25,956.63 at ten per cent interest to pay labor costs. The interest to date of trial on that loan was $5,407.62. The evidence was that SMC’s costs in digging out and resetting station 4 was $1,580.00 and there was evidence this resulted from a deficiency in the contract specifications as to the anchor for the equipment.

The engineer determined the pond usable as of October 14, 1974, and it was placed in use by the portion of the sewer system operated by gravity on or about that date. Use of the part of the sewer system requiring the pumps did not start until on or about December 19, 1974.

Highlands Insurance Company was never notified of the termination of the contract by the City as required by paragraph 23 of the general conditions of the contract. Under the contract terms the surety was entitled to such notice and to the opportunity to take over and complete any deficiencies in the contract.

The appellant urges six points for reversal, and they are hereinafter separately discussed.

Point I. It is argued the court erred in construing the contract as to SMC’s time for performance. The court’s opinion recognized the original contract required SMC to complete the work within 270 days from the date specified in the notice to proceed, and that the City had extended that time by 90 days. We find no merit to appellant’s contention.

Point II. Appellant contends the court erred in construing the contract as to the time for submission and approval of alternate type pump stations. The contractor submitted the manufacturer’s data to the engineer for alternate equipment on March 5, 1973. Later, in March, the manufacturer’s representative met with the engineer and supplied additional requested data. The engineer did not give approval of the alternate equipment until July 4, 1973. We cannot say the court erred in holding the delay of approval was an element of delay properly chargeable to the City and the engineer and that this Whs a factor contributing to the overall delay in the project, as the final order for the equipment could not be placed by the contractor until the engineer had approved the alternate equipment.

Point III. The trial court’s finding, “the project was substantially complete in December, 1974,” is not clearly against the preponderance of the evidence.

The evidence is undisputed that when the contractor was ordered off the job by the City on December 20,1974, the oxidation pond was completed to the point that it was being used and had been in use since October, and the 5 pumping stations were tested and activated for automatic operation on December 19 and 20 with a representative of the manufacturer and the engineer present. Thereafter the system has been utilized, although the equipment at times required manual operation of the pump controls and periodic repairs and servicing. The repair of defects in the equipment was within warranty, but the evidence indicates the City did not call on the contractor and the required servicing of the equipment was not performed under warranty. The pond had not been fenced, certain warning signs had not been installed at the pond, the levee banks had not been seeded in bermuda, and certain other minor work and job cleanup needed to be done as of the time the City terminated the contract. As the contract had been completed to the point it was put into use the finding of the court that the contract was substantially complete was not clearly against the preponderance of the evidence. On the contrary the finding was well supported by the evidence.

Point IV. Appellant contends the court erred in finding that after the City finally provided what was required of it under the contract, it should have permitted SMC a reasonable time to complete its work, and this was not done.

Various delays which the court found to have occurred on the part of the City, or its engineer, are discussed by appellant, and from a review of the evidence, we conclude the court’s findings with reference to such delays are well supported by the evidence. The findings of fact by; a trial judge sitting as a jury shall not be set aside on appeal unless clearly erroneous. Rule 52, Rules of Civil Procedure. However, we do not discuss the numerous delays since we conclude the delay on the part of the City until July 18, 1974, in providing the location for pump station site 5 amply warrants the court’s holding the City was obligated to allow the contractor reasonable additional time to complete the contract. The City madeit impossible for the contractor to timely complete the contract by its delay in relocating the site for the station.

The contract completion date, with the 90 days additional extension given by the City, would have been on or about May 29, 1974, but the site for station 5 was not available to the contractor within that time. In Townes v. Oklahoma Mill Company, 85 Ark. 596, 109 S.W. 548 (1908), the court said:

It is an elementary principle needing no citation of authority to support, that there is no breach of a contract where performance is prevented by the conduct of the other party. The party whose own conduct prevents performance of a contract cannot complain of its nonperformance.

In Royal Manor, et al v. B. J. Powell, 258 Ark. 166, 523 S.W. 2d 909 (1975), the court announced the rule that when a contractor has been prevented by the owner from completing the work, the plaintiff may recover the agreed price less what it would have cost him to complete construction or may recover on a quantum meruit basis.

It was undisputed SMC' incurred additional expense incident to the change in location of pump station 5, and there was substantial evidence of additional costs to SMC by other changes in plans and damages from delays caused by the City.

Point V. Appellant argues the court erred in directing a verdict for the surety on the performance bond.

As appellant has failed to establish error in the trial court awarding judgment in favor of SMC, it follows there is no basis for judgment against the surety. Also, the City failed to give notice to the surety as required by express terms of the contract, and thereby failed to afford the surety the opportunity to complete any remaining work under the contract.

Point VI. The trial court did not err in holding the City had waived the time limitation and liquidated damage provisions of the contract.

The posture of the City is untenable in arguing it is entitled to liquidated damages for failure of the contractor to complete the work within the time frame of the contract and ninety day extension when it failed to provide the site for pump station 5 until well after the expiration of the alloted time for completion of the contract. See Royal Manor, et al v. B. J. Powell, supra and United States v. John Kerns Const. Co., 140 F. 2d 792 (8th Cir., 1944).

The burden is on appellant to establish error in the trial court proceedings, and having failed to meet this burden the judgment is affirmed.

Affirmed.


author: Marian F. Penix, Judge.

text:
    John DeCLERK, Wilma DeCLERK and Mike DeCLERK v. Bob TRIBBLE
    CA 80-30
    599 S.W. 2d 152
    Court of Appeals of Arkansas
    Opinion delivered May 7, 1980
    Released for publication May 28, 1980

      Wilson & Grider, by: Murrey L. Grider, for appellants.

      Barrett, Wheatley, Smith & Deacon, by: Jim Sloan, for appellee.
   Marian F. Penix, Judge.

The appellants, John, Wilma and Mike DeClerk, filed a tort claim against appellee Bob Tribble on May 10, 1979. The complaint stated Tribble, in driving his truck and rig from DeClerks’ repair shop, caused $9,000 damage to the building and $500 damage to another vehicle. The complaint further stated due to Tribble’s negligence, Mike DeClerk was required to expend $619 for extra heating, $100 for a compound needed because of a leak, $200 for security dogs and $725 for additional man power. The summons was served on Tribble June 4, 1979- Tribble did not file an answer until June 29, 1979, which was five days past the twenty days allowed for filing an answer.

DeClerks filed a Motion for Default judgment, alleging the answer of Tribble had not been timely filed. Tribble’s Response to Motion for Default states there is a meritorious defense to the lawsuit. It also states that the tardiness in filing the responsive pleading was due to a “just cause,” an “unavoidable casualty,” and/or “excusable neglect” and that the Motion for Default should be denied and that the case should proceed to trial on its merits. Tribble’s Response states Tribble took reasonable steps to get the suit papers in the hands of his attorney. The attorney’s affidavit reflects an answer was prepared by him June 22, 1979, but the pleading became covered with other papers in the .attorney’s office and it was not discovered by him until the date upon which the answer was filed, June 29, 1979.

The Court denied the Motion for Default and ordered the Answer filed June 29, 1979, be allowed to stand and accepted as timely filed.

The DeClerks allege error in the Court’s acceptance of the Answer as timely .filed. DeClerks contend the reasons given for the filing of a late answer were not sufficient to justify the Court’s refusal to enter a Default Judgment. The DeClerks contend there is no showing of unavoidable casualty, excusable neglect or other just cause.

Tribble argues the trial judge’s order providing the case should proceed to trial on its merits, is not appealable since such ruling did not “dismiss the parties from the Court, discharge them from the action or conclude their rights to the subject matter in controversy.”

The trial court said the case should proceed to trial. This does not preclude the DeClerks from litigating a meritorious claim nor is such order a final determination on the merits. For an order of a trial court to be appealable to the Court of Appeals, it must be final. Rules of Appellate Procedure, Rule 2. In Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1967), the Arkansas Supreme Court stated:

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

See also McConnell and Son v. Sadle, 248 Ark. 1182, 455 S.W. 2d 880 (1970). The denial of a motion for a default judgment is not a final order. Carpenter v. Ingram, 11 Ark. 299, 91 S.W. 24 (1905). The trial can proceed on the merits. The DeClerks have not lost any of their rights. The action has not been terminated.

We hold this order denying the Motion for the Default Judgment is not appealable and we therefore dismiss the appeal.

Dismissed.


author: George Howard, Jr., Judge.

text:
    FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, INC. v. Laura Mae FUQUA
    CA 80-44
    599 S.W. 2d 427
    Court of Appeals of Arkansas
    Opinion delivered May 7, 1980
    Released for publication May 28, 1980

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellant.

      Bairn, Baim, Gunti, Mouser & Bryant, by: Noel F. Bryant, for appellee.
   George Howard, Jr., Judge.

The issue before us is whether there is substantial evidence to support the judgment of recovery under an accidental death insurance policy which limits liability to death which results, directly and independently of all other causes, from accidental means.

Appellant issued an accidental deah insurance policy, with a face amount of $1,000.00, to Alto R. Fuqua. The policy defined the term “accidental death” as follows:

‘Accidental death — any accident (subject to exclusions occurring while the policy is in force which results, directly and independent of all other causes, in death within 90 days of the accident shall be considered an accidental death under the terms of this policy.’

On January 28, 1976, Mr. Fuqua, age 72, while in the process of constructing a greenhouse, at his residence, fell and sustained a fracture to his right hip. Mr. Fuqua was taken immediately to the Jefferson County Hospital, but was later transferred to the St. Vincent Hospital in Little Rock where he underwent surgery. Mr. Fuqua was released from St. Vincent on March 2, 1976. He was admitted to the Jefferson County Hospital on March 3, 1976, and died on March 4, 1976.

Mr. Fuqua’s death certificate listed the immediate cause of death as “Renal Failure” due to “Chronic Renal Disease.” The certificate listed the following conditions which contributed to Mr. Fuqua’s death, but were not related to the cause of his death: (1) stress ulcer; (2) diabetes; and (3) pulmonary infarction.

Dr. John Crenshaw, Mr. Fuqua’s physician at the Jefferson County Hospital, testified that a clerk in his office filled out the death certificate by making use of medical records of Mr. Fuqua’s and that he simply signed the certificate; that he saw Mr. Fuqua for the first time in consultation on March 3, 1976; and that Mr. Fuqua was in a semi-conscious state and, therefore, he was unable to acquire any “real information” regarding the history of Mr. Fuqua’s injury.

Dr. Crenshaw testified on direct examination by Mr. Bryant:

Q. From your treatment of Mr. Fuqua, diagnosis and history that you obtained, did you arrive at an opinion based on a reasonable medical certainty as to the cause of Mr. Fuqua’s death?
A. Yes, I felt that he died of renal failure which was a complication of pulmonary embolism and the myocardial infarction and the other problems that he had as a result of the accident that occurred.

Dr. Crenshaw testified on cross-examination by Mr. Staten:

I’ll ask you a medical question. I’ll just go down the line and ask you whether or not he had diabetes, would he have died?
A. He certainly had more hardening of the arteries because he had diabetes, which, in turn, probably contributed to his kidney failure which in turn contributed to his death.
Q. With a reasonable degree of medical certainty, is it your opinion that he would or would not have died had he not had diabetes before he fell and broke his hip?
A. I suspect he would have died whether or not he had diabetes.
Q. From what cause?
A. From the same renal failure that he had anyway.
Q. Which would have been caused by what?
A. By the general aging process.
Q. Going from 1 to 100, what are the odds that he had pre-existing kidney problems?
A. About 80% ... 80 or 90% . . . based on his age and his diabetes and his previous prostate surgery.
Q. Then you are not in a position to tell this Court what caused the renal failure?
A. No, sir, I cannot say what caused that renal failure.

The medical report from Dr. William L. Mason who saw Mr. Fuqua from January 28, 1976, to March 2, 1976, while Mr. Fuqua was confined to St. Vincent Hospital stated:

. .. Mr. Fuqua suffered many complications of this fracture which include the following:
1. Probable myocardial infarction, shortly after his fail
2. Pulmonary thromboembolism, multiple.
3. Upper gastric intestinal bleeding.
4. Diabetes mellitus, requiring insulin during hospitalization.
5. Probable gram negative sepsis, secondary to urinary catheter.

All of the above medical problems were set into action by Mr. Fuqua’s fall and his subsequent trochanteric fracture of the right hip ....

The trial court, sitting as a jury, found that Mr. Fuqua’s accidental fall triggered the complications resulting in his death. Judgment was rendered in favor of appellee, widow of Mr. Fuqua, for the face amount of the policy, the statutory penalty, cost, and reasonable attorney’s fee of $500.00 with interest at 10% per annum.

Appellant argues that there is no substantial evidence to support the finding that the decedent’s fall resulted in his death “directly and independently” of all other causes. Appellant relies heavily upon Mr. Fuqua’s death certificate which lists the immediate cause of death as “Renal Failure due to or as a consequence of Chronic Renal Disease.” Standing alone, argues appellant, the certificate on its face is conclusive of the issue involved in this appeal that decedent’s death was not due to an accident, directly and independently of all other causes.

Appellant cites Jackson v. Southland Life Insurance Company, 239 Ark. 576, 393 S.W. 2d 233 (1965) in support of its posture.

Appellant’s argument is not persuasive and, accordingly, we reject it and hold that there is ample evidence to support the judgment of the trial court.

Dr. Crenshaw testified that he was not fully aware of Mr. Fuqua’s medical history when he first saw Mr. Fuqua on March 3, 1976, in Jefferson Hospital. Consequently, the insurance clerk in his office who prepared the death certificate did so with an incomplete medical report of Mr. Fuqua’s condition. Moreover, it is plain that Dr. Crenshaw simply signed the death certificate and did not directly have a hand in its preparation.

Dr. Crenshaw conceded that there is overwhelming medical evidence indicating that Mr. Fuqua’s terminal illness was precipitated by the hip fracture that he sustained when he fell from the greenhouse. Moreover, Dr. Mason, who treated Mr. Fuqua from January 28th to March 2nd, makes it crystal clear, in his report, that the complications resulting in the death of Mr. Fuqua were precipitated by the accident causing the fractured hip.

In Jackson v. Southland Life Insurance Company, supra — involving a claim for double indemnity where the deceased, who had suffered frequent epileptic seizures for “several years,” fell in a ditch of water and drowned, when he sustained a seizure while standing near the ditch — our Supreme Court, while recognizing that if an “insured is afflicted with a disease or infirmity at the time an alleged accident occurs, which disease or infirmity proximately causes or substantially contributes to the death or injury resulting, such death or injury is not within the coverage of a policy which insures against death or bodily injury by accident or accidental means, independently of all other causes, or which excepts death or bodily injury produced by disease or infirmity.”, said:

“We have many cases of this Court involving double indemnity policies or accident policies with language similar to that contained in the policy before us. These cases begin with Fidelity & Cas. Co. v. Meyer, 106 Ark. 91, 152 S.W. 995, and continue in an unbroken line to Life & Cas. Co. v..Jones, 230 Ark. 979, 328 S.W. 2d 118. We have repeatedly held that it was a question of fact for the jury as to whether the physical infirmity was the proximate cause of the accident. ...”

In Life & Casualty Insurance Company of Tennessee v. Jones, 230 Ark. 979, 328 S.W. 2d 118 (1959), the Arkansas Supreme Court stated:

“Our exhaustive research reveals the law to be well settled in this state that an insurance company is liable on their policy of accident insurance if death resulted when it did on account of an aggravation of a disease by accidental injury, even though death from the disease might have resulted at a later period regardless of the injury, on the theory that if death would not have occurred when it did but for the injury, the accident was the direct, independent and exclusive cause of death at the time. . . .”

To paraphase the rule in Jackson, supra, and Jones, supra, it is not absolutely necessary for the physician’s testimony to fix the cause of death with extreme , precision in accident policies before there can be a recovery containing language comparable to that in the instant case.

Appellee’s attorney is awarded an additional fee of $250.00.

Affirmed.


author: David Newbern, Judge. George Howard, Jr., Judge,

text:
    BROWN JORDAN, A Division of SCOTT PAPER CO. v. Claude DUKES and Charles DANIELS, Director of Labor
    CA 79-298
    600 S.W. 2d 21
    Court of Appeals of Arkansas
    Opinion delivered May 7, 1980
    Released for publication May 28, 1980

      'Pickens, Boyce, McLarty & Watson, by: James A. McLarty, for appellant.

      Michael E. Surguine, for appellee Claude Dukes.
   David Newbern, Judge.

Appellee Dukes was accused of setting off fireworks in the appellant’s plant where Dukes worked as a welder. Dukes was discharged, and he was denied unemployment compensation benefits because it was found by the referee he had been discharged for misconduct Ark. Stat. Ann. § 81-1106(b)(2) (Repl. 1976). The board of review reversed, finding Dukes was discharged for reasons other than misconduct.

The evidence before the referee was a swearing match between a company supervisor and Dukes and some of his fellow workers. The supervisor’s statement was that, from a concealed position, he saw an employee named Walker hand some items wrapped ,in brightly colored paper to Dukes and that he then saw Dukes light a fuse and throw some fireworks into the air. The supervisor was not present at the hearing, but his signed statement was accepted into evidence. Statements by other employees were also entered, each saying he had no knowledge that Dukes shot fireworks in the plant. Some identified themselves as persons who worked in the same area of the plant as Dukes.

Walker, the employee who allegedly handed the fireworks to Dukes did not testify, and no statement from him was entered. The referee made a point of questioning Dukes as to why he had no testimony from Walker.

After the hearing, based upon which the referee held for the appellant, Brown Jordan, Dukes appealed to the board of review and sent to the board a statement signed by Walker saying he had given no fireworks to Dukes. The board then reversed. The appellant had no knowledge of the Walker statement until it received the board’s decision.

The only point asserted for reversal is that the appellant was denied due process when the board considered a statement not in evidence before the referee and as to which the appellant had neither notice nor opportunity to rebut.

The appellees cite the following portion of Ark. Stat. Ann. § 81-1107(d)(4) (RepL 1976):

Procedure. The Board of Review, appeal tribunals and special examiners shall not be bound by common law or statutory rules of evidence or by technical rules of procedure, but any heraing or appeal before such tribunals shall be conducted in such manner as to ascertain the substantial rights of the parties.
The statute also provides:
Upon review on its own motion or upon appeal, the Board may on the basis of the evidence previously submitted in such case, or upon the basis of such additional evidence as it may direct be taken, affirm, modify or reverse the findings and conclusions of the appeal tribunal. [Ark. Star. Ann. § 81-1107(d)(3) (Repl. Í976)]

It is clear to us the statute does not permit the board to consider evidence of which a party has not been apprised. This “additional evidence” was not “previously submitted.” We interpret “previously submitted” to mean submitted in some previous hearing at which either party would have an opportunity to question or support it. Neither did the board “direct [it] be taken.” The statement in question here was just sent to the board by a party without invitation by the board or notice to the appellant. This failure to comply with the statute makes it unnecessary to get to the obvious due process deprivation which occurred in this case.

The appellees argue this was harmless error because there is substantial evidence of record, even excluding Walker’s statement, to support the decision. We cannot agree the error was harmless, as the board of review emphasized that very statement in its determination in favor of the appellee Dukes. The relaxation of the rules of evidence in administrative agency determinations does not permit an agency to ignore its statutory limits or fundamental fairness. Our supreme court has determined error occurred when an administrative agency failed to give a party adequate time to obtain rebuttal evidence. Pub. Service Comm’n v. Continental Tel. Co., 262 Ark. 821, 561 S.W. 2d 645 (1978). The error in considering evidence of which a party had no notice is, of course, far more egregious.

The board of review’s decision is reversed, and the case is remanded for the taking of further evidence, including that of Jimmy Walker, which either party may wish to submit, assuring that notice of any further evidence to be considered is given to each party.

Howard, J., dissents.

George Howard, Jr., Judge,

dissenting. In order to place the issue in its proper perspective, the following additional facts are set out:

Claude Dukes, the claimant and a black employee, and Jimmy Walker, a white employee, were suspended for allegedly shooting off fireworks in appellant’s plant — Jimmy Walker purportedly passed the fireworks to Claude Dukes, who purportedly lighted the fireworks with his cigarette lighter. Jimmy Walker was permitted to return to work before his suspension officially terminated, while Claude Dukes was discharged from appellant’s work force at the end of the suspension. Claude Dukes, while denying that he set off any fireworks, also claimed that he had been discriminated against, testifying “. . . picked me out of the bunch because I was the only black there and they picked me out of the bunch.”

While the Appeals Tribunal found that claimant, Claude Dukes, was discharged from his last employment on account of willful violation of the employer’s safety rules, the pivotal point of the action of the Board of Review in reversing the Appeals Tribunal was:

“The incriminating, but unsubstantial and somewhat speculative hearsay evidence to the contrary is considered insufficient to establish reasonable grounds for finding of claimant’s misconduct in connection with the work on account of willful violation of the rules or customs of his employer pertaining to the safety of employees or company property.”

Although these additional facts present an issue involving Federal Rights guaranteed to the claimant under Title VII of the Civil Rights Act of 1964; Title 42 § 1981; Sanders v. Dobbs Houses, Inc., C.A. Ga. 1970, 431 F. 2d 1097, cert. denied 91 S. Ct. 935, 401 U.S. 948; Waters v. Wisconsin Steel Workers of International Harvester Co., C.A. Ill. 1970, 427 F. 2d 476, cert. denied 91 S. Ct. 137, 400 U.S. 911, the issue for resolution is whether the finding of the Board of Review is supported by substantial evidence.

In Lackey v. Director, Arkansas Employment Security Division, CA 267 Ark. 245, and Teegarden v. Director, Arkansas Employment Security Division, CA 267 Ark. 249 (opinions delivered December 12, 1979), we said:

“[T]he findings of fact made by the Board of Review in cases of this nature (Employment Security Cases) are conclusive on appeal if supported by substantial evidence. Therefore, the question here is whether there is substantial evidence to support the determination of the Board of Review.”

In Teegarden, the claimant claimed that she was misled by the notice she received of the issues to be considered by the examiner-referee and as a consequence, she was precluded from submitting evidence to support her claim of entitlement to benefits. In affirming the decision and rejecting the claimant’s argument, we said:

“. . . [T]he procedural error, if any, was harmless. Appellant placed before the Board of Review everything she then wished to have in the record. We are at a loss to know what additional evidence she could present on the point (of her efforts seeking work during the period involved) if this case was remanded. Appellant’s counsel has not enlightened us as to what additional facts he seeks to present on remand. Under those circumstances, it would be useless to remand this case for further evidence

See also: Terry Dairy Products Co., Inc. v. Cash, Commissioner of Labor, 224 Ark. 576, 275 S.W. 2d 12 (1955).

The majority has characterized the evidence before the Referee as “a swearing match between a company supervisor and Dukes and some of his fellow workers.”, but the record does not support this characterization.

The only persons to testify under oath were Mike McKee, Union Steward, Gerald Darnell, personnel manager, who had no personal knowledge of the incident and Claude Dukes, the claimant. But Gerald Darnell testified about what he had been told about the incident by the superintendent, Frank Pridmore, who was on vacation at the time of the hearing and left an unsworn statement purportedly setting out what he had observed. The only testimony given by Gerald Darnell of any probative value not only refutes the written statement of Pridmore, but corroborates the testimony of the claimant. For example, Gerald Darnell stated that he had talked personally with Jimmy Walker and that Mr. Walker made the following statements:

REFEREE: And what did Mr. Walker say?
DARNELL: Oh just that he didn’t do it, and that’s basically it.
REFEREE: Well, I mean about giving any of the gobds, whatever you want to call them, to Mr. Dukes.
DARNELL: He just denied it.
REFEREE: He also denied that too?
DARNELL: Yes, uh huh.

It is plain that the effort to project a “due process” of law issue in this case under the pretext that “appellant had neither notice nor opportunity to rebut”', Walker’s purported written statement is but a red herring. Appellant’s own witness, Gerald Darnell, offered testimony that is identical to the statement that appellant now objects to.

Counsel for appellant has not demonstrated in any way how he has been prejudiced as a consequence of the statement having been submitted to the Board of Reivew. If, by receiving the. statement, procedural error occurred, it is harmless error and is not a ground for reversal. Keathley v. Yates, 232 Ark. 473, 338 S.W. 2d 335; Christmas v. Raley, 260 Ark. 150, 539 S.W. 2d 405. The harmless error rule applies with equal force when the purported error is of constitutional proportions. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967), reh. den. 386 U.S. 987, 87 S. Ct. 1283; Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951.

It is clear, from a careful review of the record, that there is substantial evidence to support the finding of the Board of Review. For example:

1. Claimant denied, under oath, that he discharged any fireworks.
2. Gerald Darnell, while testifying under oath, had no personal knowledge of the incident and further testified that Jimmy Walker denied passing any fireworks to claimant and further denied that claimant had discharged any fireworks.
3. On the date of the hearing before the Referee, six written statements were submitted by fellow-employees of claimant, stating that claimant did not discharge “any fireworks of any kind or description.”
4. Franklin V. Pridmore, Plant Superintendent, who purportedly saw Jimmy Walker pass fireworks to the claimant and later saw claimant light the fireworks, did not even appear for the hearing, but was on vacation. The statement executed by him on August 8th, a day before the hearing, was not sworn to. Moreover, it is interesting to note that Mike McKee testified that “He (Franklin V. Pridmore) was in the shop today (date of the hearing conducted by the referee) I think.”

I would, accordingly, affirm the action of the Board of Review in permitting claimant to' receive unemployment benefits. /


author: David Newbern, Judge.

text:
    John E. DANIELS v. Jessie Marie DANIELS
    CA 80-19
    599 S.W. 2d 748
    Court of Appeals of Arkansas
    Opinion delivered May 7, 1980
    Released for publication June 11, 1980

      Cortmez & Webster, by: Warren H. Webster, for appellant.

      Rowland & Templeton, by: Ben D. Rowland, Jr., for appellee.
   David Newbern, Judge.

In this divorce case the parties were unable to reach a mutually acceptable division of their property. The chancellor distributed some items and ordered that others, including the parties’ home and the assets of two businesses be sold and the proceeds divided equally between the parties. The final order of distribution of assets, including the proceeds of the sale, was made December 7, 1979- This was after the Arkansas Supreme Court’s decision in Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979), which held unconstitutional the statute making allowance for temporary alimony, maintenance and attorney fee available to women only. That decision, which was predicated upon Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102 (1979), at least called into question the constitutionality of Ark. Stat. Ann. § 34-1214 (Repl. 1962), which made distribution of property upon divorce also dependent on gender to a degree. Our supreme court did not consider the constitutionality of this statute, and it has not been placed in issue here. The chancellor chose specifically to ignore the statute and made a distribution of the property based solely upon “equitable principles.” His decision in that respect may have been prophetic. See, Sweeney v. Sweeney, 267 Ark. 595, 593 S.W. 2d 21 (1980).

The appellant’s argument is, first, that the chancellor failed to apply Ark. Stat. Ann. § 34-1214 (Repl. 1962), which would have required that the wife be granted only one third of the appellant husband’s individual, personal property. The other arguments concern the manner in which specific items of property were accounted for in the distribution. We will discuss each point separately.

1. Failure to Apply the Statute

As mentioned, we are not called upon to assess the constitutionality of the property division statute which was in effect at the time this case was filed. However, given our supreme court’s pronouncement in Sweeney v. Sweeney, supra, that “equity courts” should draw upon their traditional powers to determine the rights of divorce litigants to support, we are unwilling to say the chancellor was wrong in dividing the property according to “equitable principles.” In addition, we agree with the appellee’s argument that nothing in the appellant’s abstract or brief shows that any of the property dealt with by the court was owned individually by the appellant or that he pursued any such contention at the hearings below. The appellee contends she is unable to supplement the abstract to show parts of the record where the court determined some items not to be the appellant’s individual property because the appellant did not designate those parts of the record to come before this court. See, A. R. App. P. 3(e).

We hold the appellant’s abstract is not sufficient to permit us to consider this point. Supreme Court and Court of Appeals Rule 9-

2. Interest on Home

In its final distribution, the trial court charged to the appellant $1,062.00 representing overdue interest on payments not made during a time when the appellant occupied the home and the appellee did not. The chancellor found the appellant was specifically and individualy responsible for that amount because only he benefited from occupancy during the time that amount accrued. Thus, we cannot agree with the appellant that the court erred in failing to credit him with half that amount on the theory it was a joint obligation.

3 .Judgments

Likewise, the appellant claims he was erroneously charged with $1,103-78 representing debts incurred by one of the businesses sold. The court found specifically that that amount represented judgments against the appellant and not the business, although they were paid out of the proceeds of the sale. We find no reason to disagree.

4. Withheld Furniture

It was apparently undisputed that the appellant withheld from the court-appointed auctioneer certain items of furniture worth $1,005.00 which should have been included in the sale. This amount was added into the total amount to be divided between the parties and then charged against the appellant.

The appellant argues he is not being given credit for his one half of the value of that furniture. The argument is erroneous as it ignores the fact that the $1,005.00 was included in the amount to be divided, and then subtracted from the portion to go to the appellant. It is clear he got credit for his portion when the value of the furniture was included in the proceeds to be divided.

5. Bank Account

The appellant contends there was a joint bank account containing $5,000.00 which was not divided by the court’s orders. True, we find nothing in any of the court’s orders dealing with the account. The only abstracted testimony on the point is that of proceedings of November 8, 1979, in which the appellant said there had been a joint bank business of Daniels House of Costumes.” At that hearing, which was held long after the sale of the business interests of the parties had been ordered, the court sustained the appellee’s objection to the appellant’s testimony, saying “[t]hat was resolved by the decree in July, 1979. That is res judicata, it’s over with. I don’t want to go into it.”

In his argument on this point, the appellant says:
The appellee had in her possession and control a joint bank account held in the name of John E. and Jessie M. Daniels, and containing approximately $5,-000.00. The Court refused to order a division of the proceeds, in the last two post-amended decrees whatever they may be, alleging that the matter was res judicata, since it was not contained in the original decree rendered on March 14, 1979, and entered of record on April 15, 1979. The only problem here, which may be of no importance, is that the court did not make, or even attempt to make a property distribution on March 14, 1979; and, subsequently admitted that the property division contained therein had not been made by the court, and directed that all property be sold and all property of the parties of any nature be divided equally, and this was never done as to the joint owned bank account.

It is apparent that the appellant is confused about the court’s reference. The court referred to the July decree rather than the original one rendered in April nunc pro tunc March 14. The decree of July 18, 1979, certainly did purport to distribute some of the parties’ property, and it ordered the assets of the business with which the account was connected sold at auction with the proceeds to be divided by the court.

The appellee contends that in the position of the record not designated for appeal the court determined this account was not joint property. That argument fits the court’s remark which we are able to find in the record that the matter is “res judicata.” The appellant has given us no reason or information upon which we could conclude this was an erroneous conclusion, although we might have used the term “law of the case” rather than “res judicata.” See, James and Hazard, Civil Procedure, § 11.5 (2d ed. 1977).

Affirmed.