author: David Newbern, Justice.

text:
    ARKANSAS BURIAL ASSOCIATION BOARD v. McEUEN BURIAL ASSOCIATION and Sheldon Madden
    89-342
    788 S.W.2d 234
    Supreme Court of Arkansas
    Opinion delivered April 23, 1990

      Steve Clark, Att’y Gen., by: Frank J. Wills III, Asst. Att’y Gen., for appellant.

      Davidson, Horne & Hollingsworth, A Professional Association, by: Allan W. Horne and Patrick E. Hollingsworth, for appellees.
   David Newbern, Justice.

The Arkansas Burial Association Board appeals a decision of the circuit court which held invalid certain rules promulgated by the board. The declaratory judgment action was brought by the McEuen Burial Association, an association governed by the board, and Sheldon Madden, a member of the McEuen association. In an earlier opinion we held that the trial court erred in dismissing the action for lack of a justiciable issue. McEuen Burial Ass’n v. Arkansas Burial Ass’n Board, 298 Ark. 572, 769 S.W.2d 415 (1989). We find no error in the trial court’s conclusion that the rules are invalid because they do not accomplish the purpose of the legislation pursuant to which they were adopted and are, in fact, contrary to it.

Burial associations were created primarily in the 1930’s to help people pay the costs of funerals. An association sells a certificate entitling the holder to a certain amount of credit toward the cost of a funeral. Each association apparently contracts with a single funeral home which honors that association’s certificates. Although it is not expressed in the record before us, it is obvious that the idea behind these associations is that the money assessed the members will be on hand to be invested, and the investment earnings can be used to defray the members’ funeral expenses. Each member’s assessments will presumably amount to less than the value of the certificate.

In 1953 the general assembly undertook to regulate burial associations with the enactment of Act 91 of 1953, now codified, as amended, as Ark. Code Ann. §§ 23-78-101 through 23-78-125 (1987 and Supp. 1989). The act created a burial association board, § 23-78-105, with the power to prescribe minimum assessments or dues for certificates issued in specified amounts, § 23-78-103(a)(3), and the power to adopt regulations and rules applicable to the associations, § 23-78-108(a)(6). It was provided that no certificate could be issued for benefits in excess of $500.

Nothing in Act 91 provided or required that burial associations be solvent or sound in an actuarial sense. Apparently the associations were allowed to operate without official regard to whether the money would always be in hand to honor outstanding certificates. The evidence taken in the hearing in this case indicates that many of the associations are technically insolvent. On the other hand, there was testimony that no certificate has ever been dishonored, the reason being that the funeral homes regard the associations with which they contract as means of marketing their services. Their practice has been to “discount” funerals to their burial association members so that the certificates are ostensibly honored in every case.

The general assembly took a new approach in Act 443 of 1987. The board was given authority to “[establish actuarial rates and reserve requirements necessary to insure the financial integrity of all burial associations.” § 23-78-108(7). The maximum certificate amount was raised to $2,500, § 23-78-112(a), and it was provided that, “[i]f other than the contract funeral home performs the funeral service, the benefit shall be paid to that licensed funeral home on the basis of one hundred percent (100%) of the face amount of the certificate, in cash.” § 23-78-112(b). Previously, it had been eighty percent.

Pursuant to these changes in the law, the board made changes in its rules. They appear in an exhibit presented by the McEuen Association and Mr. Madden. It amended its Rule 18 to set new assessment rates. It enacted a new Rule 36 to provide:

On or after the effective date of this rule, any association not having sufficient deposits as set forth by the Arkansas Burial Association Board and who wishes to continue writing certificates of membership must deposit the amount of funds into the Association’s account to bring it into compliance with this rule. At which time the deposit becomes sufficient to meet the requirements, the initially deposited funds may be withdrawn if approved by the Burial Association Board.
Until such time that an association has met the deposit requirements and no amount is being written off, no operating expenses can be taken from the burial association and the association must pay its contract funeral home 50% of the face value of the certificate.
The amount of deposit required would be based on the number of members and the maximum amount the operator wants to write. That amount must be maintained at all times.
The chart below shows how much deposit would be required under those guidelines.
Policy Policy Policy
Limit Limit Limit
$500 $1,500 $1,500 & Up
1-1,000 members 2.500 10,000 20,000
1,001-2,500 members 5,000 20,000 30,000
2,501-5,000 members 7.500 30,000 40,000
5,001 & Up 10,000 40,000 50,000
All burial association memberships written on or after the effective date of this rule shall be reserved on the basis of an actuarial reserve table as attached.

A new Rule 39 is as follows:

All burial associations desiring to issue certificates of membership shall comply with Board requirements concerning reserve requirements, minimum rates, and underwriting guidelines. Prior to issuing certificates after the adoption of this rule, the local burial association shall submit an application for authorization to the Executive Secretary on a form as prescribed by the Board. If the Executive Secretary determines that the application is in order and that the association has sufficient funds on deposit and is sound enough to issue certificates of membership in the amount requested per member, he shall issue a Certificate of Authority to issue certificates of benefits in the amounts requested. If the Executive Secretary denies the application, the burial association may appeal his decision to the Board.

A new Rule 40 merely provided for a new application form to be used for each burial association member and required compliance by each association with “the underwriting guidelines established by the Burial Association Board.”

The circuit court found the amendment to Rule 18 invalid because the

rates and reserves established by Rule 18, while arguably sufficient for the writing of new certificates, are demonstrably inadequate to create and maintain reserves to assure the solvency of both the associations’ new certificates (‘new business’) and existing certificates (‘old business’). It is impermissible for the Board to permit the comingling of funds of old business and new business without establishing adequate rates and reserves to assure the solvency of the associations with respect to both classes of business.

Similarly, the court held the new Rule 38 invalid because it permits the assets an association has on hand as the result of “old business” to constitute all or part of the “deposit” to be required with respect to certificates written pursuant to the new rules and the expanded limit.'The court remarked that a “deposit” is a fund to be segregated, apparently meaning that deposits meant to assure availability of funds for new certificates should not, in any part, come from the assets on hand resulting from prior certificate sales.

Rule 39 was held void because of its failure to set standards to be applied by the executive secretary of the board in determining the soundness of an association seeking authority to issue certificates.

Rule 40 was not invalidated, but the court stated that the rule was ambiguous, and the board should reconsider it.

In consideration and preparation of its new rules, the board consulted Joseph A. Krenz, a consulting actuary. Mr. Krenz made it clear in his testimony at the hearing in this case that the tables he proposed to the board were designed to assure soundness of the associations with respect to certificates issued under the new rules. He said the reserves to be established under the new rules would not support claims with respect to the old certificates.

The McEuen Association and Mr. Madden presented the testimony of Mr. Joe Musgrove, also a consulting actuary, who described the actuarily poor condition of many of the associations and pointed out that “something extraordinary” would have to happen to make the associations financially sound and that the board’s rules would not accomplish that purpose.

1. The standard of review

The board argues there was no showing that the new rules are arbitrary and capricious, an abuse of discretion, or contrary to law, and that absent such a showing, it is error to hold them invalid, citing Department of Human Services v. Berry, 297 Ark. 607, 764 S.W.2d 437 (1989). The McEuen Association and Mr. Madden argue there is no need to consider whether the rules are arbitrary and capricious because, to be valid, they must implement the purpose of the legislation authorizing them, and we need not consider whether they are arbitrary and capricious if they fail the implementation test.

We agree that an administrative agency’s rules must implement the purpose of the legislation pursuant to which they are made. Reviewing regulations of the Department of Transportation, the Supreme Court pointed out that even the arbitrary and capricious standard should be expanded to include a situation where the agency had, “relied on factors which Congress had not intended . . . [or] entirely failed to consider an important aspect of the problem.” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983).

If Act 443 had required the board to enact rules which would immediately make Arkansas burial associations actuarily sound with respect to all past and future business, it would have required the impossible. The testimony before the court made it clear that only a large infusion of money could have done that, and the general assembly did not provide it. The act gave the board the authority to “ [e] stablish actuarial rates and reserve requirements necessary to insure the financial integrity of all burial associations.” We will discuss the trial court’s evaluation of the rules in the light of the legislative purpose behind their adoption.

2. Rule 18

The amendment to this rule did no more than set new assessment or dues rates for association members. However, it was made clear in the testimony of the executive secretary to the board that the board had decided that the money to be collected on new business under the new rule could be used to pay certificates issued before the new rules came into effect. That obviously prompted the trial court to hold that the new rates were not a step toward financial integrity of the associations. We must agree. The rates to be charged on new certificates were adopted on the recommendation of Mr. Krenz who did not consider that the money collected would be used to honor the old certificates.

3. Rule 38

We must also agree that there is nothing in this rule to prevent an association from using whatever assets it may have had on hand at the time the new rules came into effect as its “deposit” or reserve for claims written under the new rules and up to the new limit. The deposit requirement was based on the new rules and the new certificate value limit, and it was intended to create a reserve for certificates written after the new rules and limit came into effect. The financial integrity the deposit was intended to create for new business is jeopardized by comingling the reserve for old claims. Mr. Krenz testified he advised the board not to allow comingling of the funds behind the new and old certificates. We cannot say the court erred in holding this rule invalid.

4. Rule 39

The rule allows authorization to operate as a burial association if the board’s executive secretary finds the association has “sufficient funds” and is “sound enough.” The best argument in favor of this rule is that the executive secretary’s discretion is clearly limited by the rate and deposit requirements. That argument fails, however, upon realization that the rate and deposit requirements are, in effect, very uncertain in view of the fact that the money collected and the deposits made will be subject to the amounts of claims on old certificates. Those old certificate loads vary from association to association, and thus the rule permitting the executive secretary to exercise discretion based on whether an association has “sufficient funds” or is “sound enough” confers a very broad discretion.

The board has cited no authority, and has not even argued, that the court’s decision with respect to this rule is wrong. We are given no reason to disagree with the ruling that it is improper to confer unguided discretion upon the executive secretary in the granting of authority to issue operating certificates to the burial associations. This rule is apparently addressed only as part of the package of rules which the board argues is a step toward implementation of the legislative purpose of achieving financial integrity of all burial associations. We cannot agree that Rule 39 contributed to accomplishment of that purpose.

Affirmed.

Hays, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Donald Gerald RODGERS, et al. v. McRAVEN’S CHERRY PICKERS, INC., et al.
    89-218
    788 S.W.2d 227
    Supreme Court of Arkansas
    Opinion delivered April 23, 1990
    [Rehearing denied May 29, 1990.]

      Davidson Law Firm, P.A., by: Charles P. Boyd, Jr.; and Wilson, Engstrom, Corum & Dudley, by: Wm. R. Wilson, Jr., and Gary D. Corum, for appellants.

      Odell Pollard, P.A., for appellee.
   David Newbern, Justice.

This is an appeal from a defendant’s verdict in a personal injury case. Donald Gerald Rodgers, Georgia Paulette Rodgers, and Eddie A. Crisco, the appellants, contended the trial court erred by not imposing sanctions sufficient to remedy misconduct on the part of counsel for Charles McRaven, Jr., the appellee, and for not granting a new trial on the basis of some of the same alleged incidents of misconduct by counsel. We hold it has not been demonstrated that the trial court abused its discretion, and thus the judgment is affirmed.

The case arose from injuries which occurred to Donald Rodgers and Eddie Crisco when they were being lifted by a boom and bucket device, commonly called a “cherry picker,” which was mounted on a truck, while working on electrical wiring at a hospital in North Little Rock. The bucket in which they were riding fell when the arms which held the bucket on the boom broke. Mr. Rodgers was rendered a paraplegic, and Mr. Crisco severely injured his right arm. Mrs. Rodgers’ claim was for loss of consortium.

Rodgers and Crisco were working for Donham Industrial Electric Co., Inc. (Donham), when the accident occurred. Their case theory was strict liability of the supplier of the cherry picker. There was evidence that the arms holding the bucket in which they were riding failed because the plywood of which the arms were composed had rotted and broken. The plywood was encased in fiberglass which prevented observation of the disintegration of the wood.

The cherry picker had been purchased by Donham in 1982 from McRaven Cherry Picker, Inc. McRaven Cherry Picker, Inc., was a defendant in the case, but the case was submitted to the jury on the question of liability only of Charles McRaven, Jr., based on evidence that the corporation was no more than a conduit for McRaven’s personal business. The need to “pierce the corporate veil” gave rise to the first issue. Other facts will appear as necessary to discussion of each stated point of appeal.

1. Discovery violation; the corporate by-laws

It is undisputed that the Rodgerses and Crisco had sought, through one or another discovery device, all documents relevant to the corporation, McRaven Cherry Picker, Inc. There had been an ongoing conversation between counsel for McRaven, Odell Pollard, and counsel for the Rodgerses and Crisco, Gary D. Corum, about the obtaining of various documents. Mr. Pollard let Mr. Corum know that some documents sought were stored at a farm belonging to yet another lawyer whose firm had represented McRaven at the time the corporation was formed. At a pre-trial hearing held to decide a summary judgment motion, Mr. Pollard, referring to the stored documents, stated that the minutes of the corporation were there and “they have the by-laws,” although previously Pollard had assured counsel that there were no bylaws.

In his opening statement, Charles P. Boyd, Jr., another attorney for the Rodgerses and Crisco, told the jury that McRaven’s Cherry Picker, Inc., had no corporate by-laws. During cross-examination of Charles McRaven, Mr. Corum asked, “. . .did you know. . . that the corporation is supposed to have by-laws to operate by?” McRaven answered: “Yes, sir.” Mr. Corum asked: “Well, did you get any by-laws?” Answer: “I’m sure I did.” Question: “Do you have them?” At that point, Mr. Pollard produced the by-laws from a document case, held them up, and interjected: “Counsel, I have them here for you.”

Counsel for the Rodgerses and Crisco moved that McRaven’s answer be struck for failure to comply with discovery requests, pointing out that Mr. Pollard’s action had seriously undermined their credibility with the jury. They sought, in effect, to have the issue of liability directed in their favor and the case submitted to the jury on the issue of damages only. In the alternative they moved to strike the “corporate entity” defense. They moved, as a second alternative, that Pollard not be allowed to refer to the by-laws. The latter alternative was withdrawn from the motion.

In response to the motion, the trial court observed that the by-laws had been received in Mr. Pollard’s office during the week before the trial commenced. The court referred to Mr. Pollard’s failure to supplement discovery responses by making counsel for the Rodgerses and Crisco aware of the availability of the by-laws as an “oversight.” The court concluded that the Rodgerses and Crisco had suffered “some prejudice” as a result of the incident and reviewed the options available under Ark. R. Civ. P. 37. The court concluded that the request to, in effect, direct a verdict for the plaintiffs on liability would be “much too harsh,” and denied the motion to strike the defense of corporate entity for the same reason. The court remarked that the existence or nonexistence of corporate by-laws had to do with only one item bearing on whether the corporate veil should be pierced.

Concluding the hearing, the court stated:

I believe that the better method of handling this, what I consider to be a delicate situation, at last as far as the Court is concerned, is to instruct the jury that in their deliberation they are not to consider that any corporate bylaws existed for McRaven Cherry Picker, Inc., not in the presence of the jury. That position being taken, the Court feels that the by-laws may not be proffered. I will not tell the jury this, but the by-laws may not be proffered into evidence by the defendant in the presence of the jury, may be proffered if so desired by the defendant for the record outside the hearing and presence of the jury.

The court noted that the Rodgerses and Crisco had not sought a mistrial, and said, “. . . and so I am of the opinion that the sanction, if you call it that, is adequate under the circumstances.” Mr. Pollard then inquired whether the court was going to instruct the jury that McRaven Cherry Picker, Inc., had no by-laws, and the court then said, “I guess that was the essence. What I want to say to them is they are not to consider in their deliberations any corporate by-laws existed. . . .”

After a break in the proceedings in chambers, William R. Wilson, another attorney for the Rodgerses and Crisco, objected to the court’s ruling. He pointed out that the issue of the by-laws was already before the jury, and would have to be discussed further on cross-examination. Without waiving the earlier request for sanctions he requested that the court say to the jury, “the jury is instructed that plaintiffs’ counsel had not been advised of the existence of corporate by-laws until this morning during Mr. Corum’s examination of Mr. McRaven.” The court did exactly that.

After the trial, the motion to strike the answer was renewed. In his letter opinion denying the motion, the court referred to Mr. Pollard’s production of the by-laws in the presence of the jury as having been done “rather dramatically.” It was recited that counsel for the Rodgerses and Crisco had declined to seek a mistrial and had declined the court’s offer to preclude reference to the by-laws, and concluded that the instruction given to the jury was “the best option available to the Court under the circumstances.”

The argument before us on this point is that the court should have granted the motion to strike the answer. The only authority cited on the point by the Rodgerses and Crisco is Ark. R. Civ. P. 37(b)(2)(B) and (C) which permit the trial court to refuse to allow a defense or to strike a pleading as sanctions for failure to provide discovery in response to a court order. Those subsections are not directly applicable here because they deal with sanctions to be used for failure to comply with a court order. Subsection (d) of the rule provides that the sanctions listed in (b)(2)(A), (B), or (C) may be imposed for failure of a party to appear for a deposition, failure to serve answers or objections to interrogatories, or failure to serve a written response to a request for inspection. See R. Haydock and D. Herr, Discovery Practice, §§ 8.6, 8.7 (2d ed. 1988). Even if subsection (d) had been relied upon here, it has not been shown that any of the specific events mentioned in (d) occurred, unless the failure to supplement amounts to failure to serve a written response to a request for inspection.

We have upheld the trial courts’ exercise of discretion in granting severe Rule 37 sanctions for flagrant discovery violations. See, e.g., Cagle v. Fennel, 297 Ark. 353, 761 S.W.2d 926 (1988), in which we held it was not an abuse of discretion for the trial court to dismiss an action for failure to appear and failure to pay expenses ordered by the court, and we noted it was not required that the party seeking sanctions prove a willful and deliberate discovery violation. In Harper v. Wheatley Implement Co., Inc., 278 Ark. 27, 643 S.W.2d 537 (1982), we upheld dismissal of certain claims on the basis of Rule 37(d) but noted that, “[t]his extraordinary remedy should be used sparingly and only when other measures fail because of the inherent danger of prejudice.” In the Harper case we decided it was error for the court to have refused to allow the offending party to present evidence on one point.

Counsel for the Rodgerses and Crisco agree that the standard of review is whether the court abused its discretion in refusing to grant their motion to strike McRaven’s answer. We agree with the trial court’s assessment that some prejudice was caused as a result of this failure, but we cannot gainsay his determination that the sanction sought by the Rodgerses and Crisco was too harsh. Their complaint was not that the failure to supplement with the by-laws prevented them from proving their case. As the court noted, the presence or lack of presence of bylaws was only one indication of legitimate corporate existence. In addition, counsel for the Rodgerses and Crisco referred to the document later in support of their argument that the corporate veil should be pierced, pointing out that the by-laws were only pro forma. Their complaint was, and remains, that they were made to look incompetent in the eyes of the jury by the production of the by-laws by opposing counsel after they announced that there were no by-laws.

The trial court was placed by counsel for the Rodgerses and Crisco in a “nearly all or nothing” position. It became his duty to decide whether the prejudice inflicted by the actions of Mr. Pollard warranted the extreme sanction of granting victory to the Rodgerses and Crisco on the question of liability. He was in a better position than we to judge according to the circumstances of the trial, and we decline to say he abused his discretion.

2. Closing argument

a. Absent parties

Donham as well as Bill and Susie Derden were at one point námed defendants. The Derdens allegedly had owned an interest in McRaven Cherry Picker, Inc.. The actions against Donham and the Derdens were, by consent of counsel, severed from this case. The court granted a motion in limine which precluded Pollard from mentioning the Derdens and Donham “as parties” to the lawsuit. Upon inquiry, it was made clear that reference to them could be made with respect to their possible fault if the evidence supported it.

In his closing argument Mr. Pollard said:

Are you curious why Mr. McRaven and only Mr. McRaven is here in court? What about the manufacturer? What about Bill Derden? What about Susie Derden? What about McRaven Cherry Picker, Inc., the corporation? What about Donham Industrial Electric?

Counsel for the Rodgerses and Crisco objected, and the court gave this instruction:

Ladies and gentlemen of the jury, the jury is instructed to disregard reference to either Mr. Bill Derden or Suzie Derden or Donham Electric Company as parties in this lawsuit.

The Rodgerses and Crisco argue that this constituted a direct violation of the court’s order and that the mention of Donham raised the specter of the Rodgerses and Crisco having received workers’ compensation benefits. They contend they are thus entitled to have McRaven’s answer struck or at least a new trial.

The sole authority cited in support of this argument is Ed Ricke & Sons v. Green, 468 So. 2d 908 (Fla. 1985). There a plaintiff had settled its personal injury claim against Dade County but had reserved its right to pursue its claim against other defendants. In a subsequent action the court granted a motion in limine precluding any party, attorney, or witness from making known to the jury that there had been a settlement with Dade County. Defense counsel, in closing argument, said: “Now there’s going to be some other person responsible. ... I would like for you to ask him [w] hy Dade County is not a defendant. ...” The trial court denied a mistrial motion, concluding that the “empty chair” argument, (asserting that some other party might be responsible or liable for the injury) was valid. The Florida Supreme Court held the argument improper because it went beyond the typical “empty chair” statement and “emphasized that there had been a prior suit against that empty chair.”

The question in this case is far closer. We have no statement that someone else is “going to be” responsible. The “what about” questions did not imply that some other party had already settled or otherwise assumed responsibility for the damages alleged, but the reference to McRaven being the only defendant in court was improper. That was the conclusion of the trial court, and he instructed the jury to disregard references to the Derdens and Donham as parties. In his letter opinion denying the motion for new trial, the court stated that “the admonition to the jury was sufficient to remove any prejudice which may have been created by” the argument. In the absence of some authority we could construe to the contrary, we decline to hold the trial court erred.

b. Jury nullification

On behalf of McRaven, Mr. Pollard sought summary judgment on the basis that McRaven was not a “supplier” as that term is used in the law of strict liability for a defective product. The motion was denied. The court instructed the jury in accordance with AMI 1108 on the issue of strict liability. In his closing argument, Mr. Pollard said:

I suggest to you that the products liability law that the Court has read to you some instructions about, which Mr. Corum made reference to in his argument, should not and [was] not intended to apply to Mr. McRaven or to McRaven Cherry Picker, Inc., as the facts show in this case. First, why did I say that? Here’s a business that owns one product, one unit. And it’s rented. True, that’s being in business to that extent. But it’s putting one product and one product only in the marketplace for use. It’s not Avis or Hertz Rental Car, or what have you, that’s rented literally thousands and thousands of manufactured products and I think there’s a difference.

Thereafter, the colloquy was as follows:

Mr. Wilson: I object to this argument on the grounds it’s an incorrect statement of the law.
The Court: I don’t think he tried to state the law. I didn’t hear him try to state the law.
Mr. Pollard: I’m arguing the law.
Mr. Wilson: If it please the Court —
Mr. Pollard: I’m stating it’s my personal belief.
Mr. Wilson: Your Honor, may we approach the bench?
The Court: Yes, that objection would be sustained.
Mr. Pollard: I will not pursue it, then. Another reason why the product liability law doesn’t apply, first to McRaven Cherry Picker, Inc., and then I will talk as applies to Mr. McRaven himself.

Counsel for the Rodgerses and Crisco contend that the court overruled their objection to a misstatement of the law but granted their objection to the “personal belief’ remark. In his letter opinion the court stated he had sustained the objection to the argument that the products liability law should not apply to McRaven. Although it is not all that clear, the interpretation of counsel for the Rodgerses and Crisco is a fair one. It is apparent, however, that the court concluded that Mr. Pollard was arguing that the facts would not support application of the strict liability law because McRaven was not a supplier, and that is clearly the tack he took after an objection was sustained in the presence of the jury.

In support of their argument on this point that the trial court erred in failing to strike the answer and not granting a new trial, the Rodgerses and Crisco cite Ball v. Cameron, 282 Ark. 357, 668 S.W.2d 942 (1984), where we dealt with a similar argument. In opening statement in a tort automobile wreck trial the attorney for the defendant stated, “[t]he law ... is suspicious of claims like this. And they offset the advantages that the Plaintiff has by putting certain burdens on the Plaintiff.” An objection was sustained out of the hearing of the jury. A request for a cautionary instruction and later motion for mistrial were denied. In closing, the attorney repeated the “suspicious law” misstatement. We wrote:

If a trial judge has undertaken to correct some impropriety by instructing the jury to disregard it, we accord great latitude to the trial court in ruling on a motion for a mistrial and reverse only if there is a manifest prejudice. Back v. Duncan, 246 Ark. 494, 438 S.W.2d 690 (1969). However, when as here, an attorney makes an improper statement of the law, and the attorney is made aware of the impropriety by a court ruling, but the trial judge does not undertake to correct the matter by instructing the jury to disregard it, and the attorney then substantially repeats the statement, it occurs to us that prejudice has most likely occurred and we do not hesitate to reverse and remand for a new trial.

Here, the objection was sustained in the presence of the jury, and Mr. Pollard acknowledged it by moving to a different tack.

In Buckeye Cellulose v. Vandament, 256 Ark. 434, 508 S.W.2d 49 (1974), an electrician injured when he fell from a ladder due to an electrical shock was awarded a $157,000 jury verdict. In closing, the attorney for the electrician argued, “if you decide the amount and there’s some argument about how much, we ask you to decide the larger amount because his Honor there, if you give him too much, can cut it down, but if you give him too little, he can’t increase it.” The court granted a request that the jury be instructed to disregard the statement, and later in chambers a mistrial was requested. The court denied the motion, and we reversed. The trial court had clearly allowed a misstatement of the law to mislead the jury. That did not occur here.

The Rodgerses and Crisco also cite White v. Gallion, 523 S.W.2d 769 (Mo. App. 1975), where the trial court was reversed for permitting defense counsel to argue that a duty of a driver to keep a careful lookout in a automobile-pedestrian accident was not included in the law. The argument arose over the defense counsel’s interpretation of an instruction that said that a verdict must be given to the pedestrian if the driver knew or could have known of the pedestrian’s position of immediate danger and could have avoided injury by slowing down. The appellate court held that the duty to keep a proper lookout' was implicit in that instruction and that counsel’s arguments constituted reversible error. Again, the trial court had apparently ignored a misstatement of law.

Misstatements of the law apparently fall into two categories, statements which contradict or are contrary to the enunciated law and statements which may correctly set out the law but which go beyond the case at hand and permit an impermissible legal conclusion. It was not wrong for the trial court to conclude that Pollard did neither. Emphasis on the facts was a permissible interpretation of Mr. Pollard’s remarks, and that was clearly his approach after the issue was raised in the jury’s presence. We find nothing which would require us to hold the trial court abused its discretion in refusing to grant a new trial on this point.

3. Improperly suggestive questions

Mr. Pollard asked questions of the employees of Donham concerning possible abuse of the equipment by the lifting of objects heavier than permitted by the weight specifications for the equipment. Most of these questions were answered with a firm negative. However, Loren Ross was asked on cross-examination about an incident when he saw the equipment used to lift a roll of cable weighing “something less than one thousand pounds.” The appellant objected, arguing the question should be tailored to inquire whether or not the bucket was used or if some other part of the truck, apparently referring to a winch, was used to lift the cable. The objection was overruled. The question was phrased to ask the witness if he had knowledge that an employee of the company had used the “unit” to lift the cable. The witness answered the question affirmatively. The use of the term “unit” included the truck, the winch attached to the truck, and the cherry picker attached to the truck. The inclusive term was not improper, simply general. The answer to the question gave rise to a possible inference that the bucket was thus used. A followup question was objected to as follows, “[w]e want an objection on whether he used the truck or the bucket to lift this wire, or lift this cable.”

The entire line of inquiry and the way that specific question was phrased are now challenged as having created a false impression and interjected false statements unsupported by any evidence concerning utilization of the cherry picker. The record is devoid of any testimony to support the conclusion that the bucket was used to lift objects beyond the weight specifications. On redirect examination, Mr. Ross testified that the winch would have been used to lift the cable, not the cherry picker.

Tomeo v. Northern Valley Swim Club, 493 A.2d 544 (N.J. Super. 1985), is cited. There a defendant’s counsel in summation said that the plaintiff was trying to take away the home of a little old grandmother in suing for damages. An instruction was given to the jury that they should not let sympathy influence their decision. The jury returned a defendant’s verdict and the issue was raised on appeal. The court wrote:

In order to win a verdict based upon sympathy, defendant’s attorney displayed three generations of a family who own defendant and operate its business, and falsely implied to the jury that they would face financial ruin should there be a verdict for plaintiff. The fact is that defendant is fully insured for any reasonable verdict that the jury could have returned.

In concluding that a new trial was warranted the court said:

When the jury learns of a fact known to be false which is irrelevant to the issues being tried but has the clear capacity to turn them for or against a party, the jury must be told the truth promptly and cautioned that the fact is not to be considered in their deliberations. If, however, the judge concludes that a cautionary instruction will not overcome the prejudicial effect of telling the jury the truth, he must declare a mistrial.

We do not have that situation here. The witnesses denied abusing the equipment, in response to both direct and cross-examination. While the questions were suggestive, the. answers were clear, and we can find no prejudice. Mr. Ross testified on redirect examination that the winch would have been used to lift the heavy cable rather than the bucket and arms composing the cherry picker.

4. Leading questions and cumulative error

Mr. Pollard asked a number of leading questions. The Rodgerses and Crisco refer us to ten sustained objections for leading, five admonitions from the court sua sponte, one sanction where a witness was directed not to answer, and an in-chambers ruling that Mr. Pollard should refrain from leading. There were other objections to leading which were not ruled on or the question was withdrawn.

Cited for the proposition that incessant leading of witnesses and cumulative error require reversal is Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986), where we reversed a defendant’s judgment in a medical malpractice case because sanctions against leading were sought and, we held, should have been granted. We wrote:

Here counsel repeatedly ignored the trial court’s warnings concerning leading questions. The court conceded it could not or would not take action beyond admonishment. Only once did it instruct the witness not to respond. If counsel will not comply with the trial court’s requests, then some sanction, with teeth, must be used against him. We are certain the leading would have stopped had the trial court granted appellants’ motion to preclude further inquiry.

In the Alexander case, we noted that the trial court had essentially conceded a loss of control of counsel’s improper leading questions. That was not the case here. The impropriety in this case simply did not rise to that level. In the Alexander case opinion we stated the sanctions available to a trial court to stop leading questions. Counsel for the Rodgerses and Crisco do not contend here that any of those sanctions were sought from the trial court in this case.

It is contended that we should reverse and remand for a new trial solely on the issue of damages because of the leading questions and because of the cumulative effect of all the errors alleged. In the conclusion of their brief the Rodgerses and Crisco ask in the alternative that a new trial be granted on all issues. The argument is that the cumulative effect of Mr. Pollard’s improper trial tactics precluded a fair trial. In the Alexander case we noted that “[w]e do not, as a matter of course, reverse on the basis of such allegations even if they are borne out by the record.” We found that case to be unique because of the apparent inability of the trial court to control counsel through sanctions.

As stated with respect to the individual points raised, we have found no error which would have required the trial court, in effect, to award a directed verdict to the Rodgerses and Crisco on the question of liability, and we thus decline to do it here. We also decline to grant a general new trial on the basis of the authority cited to us. We find no improper display of a “design” on the part of counsel to cause an unfair trial as apparently occurred in the Florida case, Ed Ricke & Sons v. Green, supra, and we do not find the apparent and prejudicial loss of control by the trial court which caused an unfair trial and reversal in the Alexander case.

Affirmed.

Price, J., not participating.


author: Tom Glaze, Justice. Steele Hays, Justice,

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. Jose Lorenzo LOPEZ
    90-19
    787 S.W.2d 686
    Supreme Court of Arkansas
    Opinion delivered April 23, 1990

      S. Whittington Brown, Deputy Counsel, Office of Chief Counsel, Department of Human Services, for appellant.

      Keith Watkins, for appellee.
   Tom Glaze, Justice.

This is an appeal from the probate court’s May 23, 1989 order setting aside the Arkansas Department of Human Services’s guardianship of Cordell Luis Lopez with the power to consent to adoption. In so holding, the probate court found that the Department of Human Services (DHS) failed to give notice of the guardianship hearing to Jose Lopez, the putative father. In this same order, the probate court stated that a hearing would be held on June 28,1989, to decide paternity in regard to Jose Lopez and Carol Lopez. On June 28, the record reflects a hearing on motions made by DHS, including a motion for paternity blood testing to be ordered. The probate court granted the motion stating that “the blood tests may conclude this, resolve this, or do something with it.” The court ordered that it would take up the matter in a proceeding when the blood test results were received. The record is void of any indication of the results of the blood tests or the outcome of a paternity hearing.

Because of the above facts, we must conclude that the probate court’s order is not a decree from which an appeal may be taken under Ark. R. App. P. 2. In pertinent part, Rule 2 provides the following:

(a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:
1. A final judgment or decree entered by the trial court.
2. An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action;

We have repeatedly held that we will not decide the merits of an appeal when the order appealed from is not a final order. See, e.g., Tapp v. Fowler, 288 Ark. 70, 702 S.W.2d 17 (1986). In order for a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. See, e.g., Sevenprop Assocs. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1988). In addition, whether a final judgment, decree, or order exists is a jurisdictional issue which we have the duty to raise, even if the parties do not, in order to avoid piecemeal litigation. See Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988).

Clearly, here the probate court’s May 23, 1989 judgment ordering a paternity hearing on June 28,1989 is not final. As the probate judge admitted, this hearing could resolve the whole case. Because this matter is still pending before the probate court, we must dismiss the appeal.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. For Cordell Luis Lopez, aged four, life has offered little more than reverses. He has been renounced by his mother, had only minimal contact with the man who claims to be his father, is separated from his older brother, and lived in two foster homes. Yet now, under the order appealed from, he faces removal from an adoptive home, presumably the first potentially stable family environment he has known, so that a putative father who eschewed earlier opportunities, and who has contributed nothing whatever to his support, can belatedly assert parental rights, for no greater reason than because ARAP Rule 2 does not now provide for interlocutory appeal of disputes involving children. But we have twice amended the rule on an ad hoc basis to affect pending litigation on less compelling grounds than the welfare of a child. I refer to Ford Motor Credit Corp. v. Nesheim, 285 Ark. 253, 686 S.W.2d 777 (1985), where we changed the rule to permit interlocutory appeal from a class action certification, and Herron v. Jones, 276 Ark. 493, 637 S.W.2d 569 (1982), where we held that an order disqualifying an attorney from further participation in a case is appealable. I suggest the placement of children ranks at least on a par with commercial and professional disputes as warranting interlocutory review.

Since it will be many months before a final order is entered and an appeal concluded, it seems evident that this child has become a victim of society and of the legal system as well. I would allow the appeal and address the merits.

       In so stating, we note Ark. Code Ann. § 28-1 -116(a) (1987), which allows an appeal from an order of the probate court except those orders set out under provision (b). However, provision (g) clearly states these appeals are determined by the law and rules of appellate review applicable to equity cases.


author: Tom Glaze, Justice.

text:
    James D. MURPHY v. Verna L. MURPHY
    90-9
    787 S.W.2d 684
    Supreme Court of Arkansas
    Opinion delivered April 23, 1990

      Young & Finley, by: James K. Young, for appellant.

      Peel and Eddy, by: Richard L. Peel, for appellee.
   Tom Glaze, Justice.

This case involves an alimony dispute. The chancellor granted appellee the divorce based on three years separation without cohabitation, and ordered the appellant to pay alimony to appellee. In making the award, the chancellor noted appellant’s military retirement pension, $1,554.00 per month, and then directed appellant to pay $361.00 per month. Due to certain waiver and election provisions under federal law, appellant actually received his entire monthly benefits as disability payments, which are not subject to taxation. In this appeal, appellant contends the trial court erred in requiring him to pay alimony out of his disability benefits, and appellee counters, arguing the trial court may order payment of alimony when such benefits are appellant’s only source of funds.

In McCarty v. McCarty, 453 U.S. 210 (1981), the Supreme Court held that pre-existing federal law completely pre-empted the application of state community property law to military retirement pay. Congress has since enacted the Former Spouses Protection Act (FSPA or Act) to change the legal landscape caused by the McCarty decision. That Act and a Supreme Court’s recent decision interpreting it, Mansell v. Mansell, __U.S.__(1989), 104 L. Ed. 2d 675 (May 30, 1989), are argued by both parties in support of their respective positions.

The FSPA provides that court ordered alimony, child support or division of property payments will be made directly to a former spouse who presents to the secretary of the relevant military branch a state court order granting her a portion of the military retiree’s disposable retired or retainer pay. See 10 U.S.C. § 1408(d)(1) and (5) (Supp. 1988). The alimony, child support or division of property amounts ordered paid may not exceed fifty percent of the member’s disposable retired or retainer pay. 10 U.S.C. § 1408(e)(1) (Supp. 1988). Disposable retired or retainer pay is defined as “the total monthly retired or retainer pay to which a military member is entitled,” minus certain deductions. 10 U.S.C. § 1408(a)(4)(B) (1982); Mansell, 104 L. Ed. 2d at 682.

In Mansell, the Supreme Court had before it a California court order that treated the retiree’s disability benefits as community property. After reviewing the FSPA, the Court stated that, in the face of the FSPA’s plain and precise language, state courts have been granted the authority to treat disposable retired pay as community property, but they have not been granted the authority to treat total retired pay as community property. In this same vein, the court held that the FSPA does not grant state courts the power to treat, as property divisible upon divorce, military retirement pay that has been waived to receive veterans disability benefits.

In view of the Court’s decision in Mansell, the appellee here is clearly not entitled to direct payments for alimony under the FSPA because the appellant has no disposable retired pay as defined under that Act. In fact, appellant’s disability benefits are not only unavailable to appellee for alimony payments under the FSPA, but also they are subject to the strictures of the anti-attachment provision of 38 U.S.C. § 3101(a) once appellant actually receives his benefits. See Jones v. Goodson, 299 Ark. 495, 772 S.W.2d 609 (1989) [where the trial court held certain certificates of deposit purchased with veteran benefits were exempt from garnishment under 38 U.S.C. § 3101(a)]. Even so, such conclusions do not preclude the trial court from ordering appellant to pay alimony, and once awarded, the FSPA does not relieve a retiree from paying such alimony obligations. See 10 U.S.C. § 1408(d)(6) (1982).

In challenging the court’s alimony award, appellant argues he, not appellee, was the injured party, and besides, appellee had received alimony during their four years separation and therefore had had ample opportunity to rehabilitate herself for employment purposes. Of course, the relative fault of the parties is no longer a factor unless it meaningfully relates to need or ability to pay. Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982). Here, the parties have traded charges of infidelity and appellant also testified the appellee tried to kill him with an ax. The chancellor obviously concluded that none of the alleged misconduct related to need or ability to pay and from our review of the evidence presented, we agree.

Concerning appellant’s claim that appellee has had time to rehabilitate herself for employment, we note the evidence that appellee was a housewife for thirty-four years (twenty-eight years of which were when the parties were in the military service), has only a tenth grade education, has failed the G.E.D. test three times, has diabetes, a bad back and possibly a tumor. Considering these factors, along with the fact appellee has only nominal income, we believe the chancellor was well within his discretion to decide appellee still needed alimony when the parties’ divorce was granted. We affirm.

       The case reviewed by the Mansell court involved California community property law, but the court noted its decision covers equitable distribution states as well.

       It is noteworthy to mention the strong dissent issued by Justice O’Conner who criticized the court’s construction of the Act by stating, “To read the statute as permitting a military retiree to pocket 30 percent, 50 percent, even 80 percent of gross retirement pay by converting it into disability benefits and thereby to avoid his obligations under state community property law, however, is to distort beyond recognition and to thwart the main purpose of the statute, which is to recognize the sacrifices made by military spouses and to protect their economic security in the face of a divorce.” Justice O’Conner concluded by mentioning that since the retiree can waive retirement pay in lieu of disability benefits so as to avoid the Act’s direct payment mechanism, the former spouse is relegated to other state processes that cannot directly attach the retiree’s benefits given the strictures of the anti-attachment provision of 38 U.S.C. § 3101(a).

       We note that the appellant does not actually argue his ability (or Inability) to pay alimony or the factors considered by courts when finding alimony awards. See Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). Thus, we limit this review only to those three issues raised below and argued in this appeal.


text:
    James Lee WITT and Lea Ellen Witt v. John M. GRAVES and Maggie Mae Graves, His Wife, and Harrison C. Graves and Joyce A. Graves, His Wife
    89-344
    787 S.W.2d 681
    Supreme Court of Arkansas
    Opinion delivered April 23, 1990

      David H. McCormick, for appellant.

      R. Kevin Barham, for appellee.
   Tom Glaze, Justice.

The appellants filed a petition to quiet

title in 80 acres in Logan County. In response, the appellees filed a counterclaim asserting only a claim of ownership of the mineral rights under this property. The chancellor found that the appellants had established ownership by adverse possession of the surface rights of the 80 acres, but held the appellees owned the mineral rights in the acreage as a result of a reservation contained in a lost deed which had been executed in 1939 by appellees John’s and Harrison’s mother and guardian, Edna Graves. Appellants argue on appeal that the chancellor’s finding was erroneous. We find no error and therefore affirm.

The abstract of title traces the history of this Logan County property starting in 1855 when the Untied States conveyed the property to the State of Arkansas for the use of construction of a railroad. In the years following, the property was transferred between a number of different railroad companies. However, in 1925 and 1926, title to the property in question was transferred by warranty deed to R. S. Graves, who was the father of appellees John and Harrison Graves. The next recorded deed involving this property is in 1974 from Coy and Hester Hodges to Loyd and Gladys Hodges. In 1979, a warranty deed was recorded from Loyd and Gladys Hodges to the appellants, James and Lea Witt.

Although there is no record of any conveyance of the disputed property between the years of 1926 and 1974, appellees claim title to the minerals by a lost deed. According to the appellees, their father, R. S. Graves still owned the property when he died intestate in 1934. Since John and Harrison were only nine and six at the time of their father’s death, their mother, Edna Graves, was appointed the guardian of their estates. According to John Graves’s testimony, his mother, by deed, sold the disputed property in 1939 to a family friend, John Raulston, and, in doing so, reserved all oil, gas and mineral rights.

It is a settled principle of law that those who claim under a lost deed must prove its contents by clear, satisfactory, and convincing proof. See, e.g., Thompson v. Graves, 281 Ark. 492, 665 S.W.2d 268 (1984). We have stated that parole evidence should show that the deed was duly executed as required by law, and should show substantially all its contents by clear, convincing and satisfactory evidence. McCulloch v. McCulloch, 213 Ark. 1004, 214 S.W.2d 209 (1948).

Because of the deaths and sickness of the other parties involved, John Graves provided the only testimony to prove the existence of the lost deed. He testified that he was positive that his mother sold the 80 acres in question to a family friend, John Rauiston, and that he knew a deed was prepared in connection with this sale. He further stated that Edna Graves had not acquired approval of the sale from the probate court so the sale was illegal.

Other evidence corroborates John’s account of the lost 1939 deed reserving the mineral interests. According to his testimony, after the sale, Edna Graves, acting for herself and as guardian, executed mineral leases in 1942 and 1952. The record shows that both of these leases were approved by the probate court. Also, Edna Graves and her sons executed a mineral lease in 1957 when the sons had reached the age of majority. Further, according to John’s testimony, Edna Graves in 1964 transferred her mineral interests to her sons by a mineral deed, and in turn they executed a mineral lease to a leasing company in 1981.

John further testified about a conversation he had with Coy and Loyd Hodges in 1956 in which the Hodgeses only claimed the surface rights to the property and recognized the Graveses’ claim to the mineral interests. In fact, the 1974 deed from Coy and Hester Hodges to Loyd and Gladys and the 1979 deed from the Hodgeses to the appellants stated that they were “subject to all valid prior mineral reservations.”

The tax history of the property is more confusing than helpful. Contrary to the law at that time, Logan County kept two separate records of the assessment of the surface acreage and the mineral acreage of the property. From the time of 1939 to 1956, there was no separate assessment of the mineral acreage from the surface. In 1956, the appellees apparently for the first time assessed the mineral acreage. After reviewing the evidence set out above, we cannot say that the chancellor’s finding that the appellees proved the existence of the 1939 deed is clearly erroneous. ARCP Rule 52(a).

Even though the appellees proved the deed, the appellants argue that the severance of the mineral interests is void because the sale from Edna Graves, as guardian, to Rauiston was illegal.While it is true that the failure of the parties to comply with the statutes governing the sale of a ward’s land renders the sale void, it has also been held that upon reaching majority, the ward may ratify the void sale. McMillan v. Malvern Gravel Co., 136 F. Supp. 567 (W.D. Ark. 1955). Such ratification may be made by the ward’s failure to do something to disaffirm the sale after he or she reaches the age of majority. See Davie v. Davie, 154 Ark. 633, 18 S.W. 935 (1892). Here, clearly the appellees did not disaffirm the sale. In fact, after reaching the age of majority, they continued to execute mineral leases and made no claim to the surface rights. Therefore, the illegality of the sale had no effect on the severance of the mineral interests by the 1939 deed.

Finally, we address the appellants’ claim that they established ownership of the mineral interests by adverse possession. We have held that when a mineral ownership has been severed by deed from the surface ownership, adverse possession of the surface is ineffective against the owners of the minerals unless the possessor actually invades the minerals by opening the mines or drilling wells and continues this action for the necessary period. Taylor v. Scott, 285 Ark. 102, 685 S.W.2d 160 (1985). Since there has been a severance by deed of the mineral interests, the appellants must now show that they invaded the minerals and continued this action for seven years to prevail on their adverse possession claim on the mineral acreage. The appellants testified that they executed the first mineral lease on the property in 1985. Clearly, under the facts of this case, they cannot show ownership of the minerals by adverse possession.

For the reasons stated above, we affirm.

       These acres are located in Section 24, Township 7, north, Range 22 west, West '/2 of S.W. '/4.


author: Dale Price, Justice.

text:
    C.J. SHAMLIN v. Linda SHUFFIELD and Leon Garot
    90-34
    787 S.W.2d 687
    Supreme Court of Arkansas
    Opinion delivered April 23, 1990

      Josh E. McHughes, for appellant.

      Huckaby, Munson, Rowlett, and Tilley, P.A., by: Beverly A. Rowlett, for appellee.
   Dale Price, Justice.

The appellee, Linda Shuffield, is the owner of 10 acres of land on Peters Road in Northern Pulaski County. She filed a complaint against the appellant, C. J. Shamlin, alleging that he had impermissibly entered her land, cut timber, and damaged her property. Shamlin answered with a general denial, then filed a third-party complaint against the appellee, Leon Garot. Garot was the owner of certain land adjacent to Miss Shuffield’s. In his complaint, Shamlin claimed he had contracted with Garot to cut timber from Garot’s property and in fact did enter the property and cut trees. He asked that he be given judgment over against Garot if it was determined that the trees did not belong to Garot.

The case was tried to the judge and Miss Shuffield was awarded $9,986 in actual damages, which were trebled to $29,958. The appellant argues six points for reversal, all of which we find meritless.

Two issues concern evidentiary matters. First, the appellant claims that part of Miss Shuffield’s testimony was hearsay. Miss Shuffield was asked what action she took once she discovered her property had been damaged. She then testified:

Miss Shuffield: I knew I had to find out who did it so I just started doing some investigative work. Found out from Mrs. King . . .
(appellant’s attorney objects)
Appellees’ counsel: Without telling us what anyone else said, tell us what you did.
Miss Shuffield: I did some investigative work, talked to some people and found out the . . .
(appellant’s attorney objects)

It is clear that Miss Shuffield stopped short of testifying as to what someone else told her. Since no objectionable matter was placed into evidence, there was no error. See Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988).

The appellant contends next that the court violated the “best evidence” rule, A.R.E. Rule 1002, by allowing Miss Shuffield to testify as to what she heard the appellant say during his deposition:

Counsel: I think you were present in the conference room when [the appellant’s] deposition was given, weren’t you?
Miss Shuffield: Right, but we did not speak.
Counsel: Did you hear him admit at that time that he did cut the timber off your property?
Miss Shuffield: [W]e were sitting there talking about the same piece of property and he was talking about certain trees and he called it a slough off a property, and that’s not what it was. But I understood him to say, yes, he did.

It is not at all clear that Miss Shuffield was attempting to prove what the appellant said in his deposition. It appears she may have been merely relating a statement the appellant made in conversation. If that is the case, Rule 1002 was not violated since there was no attempt to prove the content of a writing or recording. Second, even if the rule was violated, the appellant was not prejudiced. He himself testified later in the trial that he had cut some timber on property on Peters Road and didn’t actually know whose property he was cutting on. An evidentiary error is harmless if the same or similar evidence is otherwise introduced at the trial. Thompson v. AAA Lumber Co., 245 Ark. 518, 432 S.W.2d 873 (1968).

The next allegation of error is the court’s failure to dismiss the case at the close of the plaintiff’s evidence. See ARCP Rule 50(a). The appellant argues that the plaintiff did not make a prima facie case because, although she proved that someone had entered her land, cut timber, and damaged her property, she offered no evidence that the appellant was the guilty party.

The case against the appellant was largely circumstantial. The only testimony connecting him to the timber cutting was the testimony of Leon Garot. Mr. Garot testified that in September of 1987 and again shortly thereafter, he was telephoned by the appellant, who was seeking to cut timber. No permission was given for any cutting. When Miss Shuffield visited her adjacent land in late 1987, she found that her trees had been cut.

The appellant cannot prevail on this issue. After his motion to dismiss was denied, the appellant went forward with his proof. His own testimony revealed that he was the one who cut the timber in question, even though he did not know for certain to whom the property belonged. If, after the denial of a request for a directed verdict, or in this case, a dismissal, a defendant introduces evidence which, together with that introduced by the plaintiff, is legally sufficient to sustain a verdict, he waives his claim of error by the court in refusing to direct a verdict, or dismiss, at the close of the plaintiff’s case. Higgins v. Hines, 289 Ark. 281, 711 S.W.2d 783 (1986); Kansas City Southern Industries, Inc. v. Stewman, 266 Ark. 544, 587 S.W.2d 12 (1979).

The remaining issues concern the trial court’s assessment of damages. The appellant claims the trial court erred in assessing treble damages against him when it was not shown that he acted intentionally or maliciously in cutting the timber. He also claims that Miss Shuffield owned only an undivided one-half interest in the land (she had bought out her former co-owner) and therefore should not have received the total amount of damages. Neither of these arguments was made below. We have said many times that we will not consider an argument made for the first time on appeal. Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989).

We now consider appellant’s other arguments concerning damages. First, he claims it was not proper to award Miss Shuffield damages to restore her property to its former condition. Of the $9,986 in actual damages awarded, $8,000 was to pay for the restoration of the land, including removal of stumps and debris, and soil repair. We have said that this is a recoverable element of damages for temporary damage done to property. See Arnold v. Lee, 296 Ark. 339, 756 S.W.2d 904 (1988); Benton Gravel Co. v. Wright, 206 Ark. 930, 175 S.W.2d 208 (1943).

Second, the appellant claims the entire damage award should not have been trebled, but only that portion representing damage to the trees ($1,986). See Ark. Code Ann. § 18-60-102(a) (1987). In Arnold v. Lee, supra, we held that an award of damages, which included restoration costs, was properly trebled under the statute.

We find no error in the court’s findings on either liability or damages.

Affirmed.


author: Per Curiam.

text:
    Ronald D. SMITH v. STATE of Arkansas
    RC 90-11
    788 S.W.2d 948
    Supreme Court of Arkansas
    Opinion delivered April 23, 1990

      A. Wayne Davis, for appellant.
    No response.
   Per Curiam.

The appellant, Ronald Smith, has filed this motion for rule on the clerk on the basis that his attorney, A. Wayne Davis, admits responsibility for failing to monitor the briefing schedule and for failing to timely file the record.

Prior to tendering the record, Smith had obtained two time extensions for completion of the transcript. The time deadline was extended until January 29, 1990, and Smith tendered the record on January 19,1990. However, the tender was made four days after the seven month limitation period, and the Clerk refused to file the record. Ark. R. App. P. 5(b).

We have held that an admission by an attorney for a criminal defendant that the record was tendered late due to a mistake on his part was good cause to grant a motion for rule on the clerk. Price v. State, 292 Ark. 557, 732 S.W.2d 126 (1987). In Price, the attorney admitted fault by affidavit.

In this case, although Mr. Davis does not admit fault by affidavit, he does admit fault in his signed motion for rule on the clerk.

Consequently, the motion for rule on the clerk is granted, and a copy of this decision will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Robert L. TANNER v. CITY OF GREEN FOREST, Arkansas
    90-17
    788 S.W.2d 727
    Supreme Court of Arkansas
    Opinion delivered April 30, 1990
    [Rehearing denied May 29, 1990.]

      Martin Law Firm, P.A., by: Thomas A. Martin, for appellant.

      Terri L. Harris, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves the application of a zoning ordinance of the appellee, City of Green Forest (City), to land purchased by the appellant, Robert Tanner.

The underlying facts are that Tanner purchased a 25 acre tract of land fronting on U.S. Highway No. 62 in 1984; at that time, the land was zoned as residential property. In 1987, Tanner sought to have the tract rezoned as commercial property.

The procedure concerning the zoning of property with frontage on U.S. Highway No. 62 is contained in the City’s Ordinance No. 347, which was adopted on September 8, 1981, and provides as follows:

That all lots, tracts or other parcels of real property with frontage on U.S. Highway No. 62 shall be zoned either Commercial or Residential, at the election of the Buyer thereof upon proper application therefor. Provided, however, that no part of said property shall be changed from its present zoning classification unless and until a building permit has been approved by the City Planning Commission and the City Council.

The City Planning Commission recommended rezoning Tanner’s tract subject, however, to the approval of a building permit by the Planning Commission and City Council. The City Council subsequently rejected Tanner’s request.

From that decision, Tanner appealed to the Chancery Court of Carroll County; after reviewing the evidence, the chancellor dismissed Tanner’s petition. From that order, Tanner appeals and alleges two points of error: 1) that the chancellor erred in finding that Ordinance No. 347 did not constitute a bill of assurance that obligated the City, upon his proper application, to rezone his property from residential to commercial, and 2) that the chancellor erred in not finding the City’s refusal to rezone his property as being unreasonable and arbitrary. We find no merit to either argument and affirm.

It is well-settled that when we review the decree of a chancery court that the decree will be affirmed when the findings of fact are not clearly against the preponderance of the evidence. City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981).

Tanner initially contends that the chancellor erred in finding that Ordinance No. 347 did not constitute a bill of assurance, which would have conferred upon every landowner affected by the ordinance the power to designate the zoning classification of the property at the landowner’s discretion.

Tanner attempts to correlate a bill of assurance with an ordinance by asserting that the actual passage of an ordinance, which he argues provides a property owner with the discretion to rezone his respective property, creates the same vested rights in property owners as a bill of assurance. However, Tanner cites no authority for this proposition, and we find no basis for such a correlation.

An ordinance, a local law or a regulation enacted by a city council or other similar body under powers delegated to it by the state, is legislative in nature by its own definition. A bill of assurance more readily equates to a restrictive covenant inasmuch as it relates to the assurances provided by a developer, generally of a subdivision, to buyers of the developing property that the restrictive covenants contained in the bill of assurance will be enforced on the purchased lots. See generally Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987); McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988).

In fact, City of Little Rock v. Sun Building & Developing Co., 199 Ark. 333, 134 S.W.2d 583 (1939), and Richardson v. City of Little Rock Planning Comm’n, 295 Ark. 189, 747 S.W.2d 116 (1988), which are relied upon by Tanner, support our position on the distinction between an ordinance and a bill of assurance. In Sun Building & Developing Co., we held that where an addition had been platted and a bill of assurance filed and accepted by the City, under which lots might be used for either business or residential purposes, the subsequent passing of an ordinance by the City classifying the property as residential property constituted a taking of property without just compensation and was invalid.

In Richardson, (citing Smith v. City of Mobile, 374 So.2d 305 (Ala. 1979), and RK Dev. Corp. v. City of Norwalk, 156 Conn. 369, 242 A.2d 781 (1968)), we stated that once a planning commission, which is not a legislative body but functions in an administrative capacity and derives its authority from the legislature, has exercised its authority in drafting regulations pertaining to subdivision development, it is bound by those regulations and shall administer them guided by standards that can be uniformly applied and that give notice to subdividers of the minimum requirements with which they must comply in order to obtain approval. As a result, we held that a planning commission may not disregard the regulations set forth in a subdivision ordinance and substitute its own discretion in lieu of fixed standards applying to all cases similarly situated.

Consequently, the distinction between an ordinance and a bill of assurance precludes any correlation in their application or effect.

Tanner also alleges that the chancellor erred in not finding the City’s refusal to rezone his property as being unreasonable and arbitrary. The question before the chancellor when a zoning action of the City is challenged is solely whether or not the City acted arbitrarily, capriciously, or unreasonably. In other words, the question is whether there was any reasonable basis upon which the City could have based its decision. City of Little Rock v. Breeding, supra.

In deciding this question, there is a well-established presumption that the city board or legislative body acted in a reasonable manner when they either zone or refuse to zone property, and the burden is on the landowner to show otherwise. City of Little Rock v. Breeding, supra (citing Economy Wholesale Co. v. Rogers, 232 Ark. 835, 340 S.W.2d 583 (1960)).

In support of his position, Tanner asserts that commercial utilization of his property is not only the best use of the property, but the only use, and he characterized the neighborhood surrounding this tract as being “ever emerging commercial in nature.” He also states that he has been the only landowner of property fronting on Highway 62 to have been denied rezoning in that area, that the City had no reason to deny his petition, and the property was only valuable for commercial retail development.

However, we have held that rezoning is not justified solely on the ground that it is necessary to put a particular tract to its most remunerative use. City of Little Rock v. Breeding, supra.

Additionally, the chancellor relied on the following factors in determining that the City had not acted in an arbitrary, capricious, or unreasonsable manner when it denied Tanner’s rezoning petition: 1) the hearing at which Tanner presented his rezoning petition was well attended by residents of the area and that some of the residents objected to the petition, 2) there were concerns recited over increased traffic and the ability to provide sewage services, 3) Tanner’s land was wholly within an area zoned residential, 4) Tanner was personally aware of the current zoning classification of the property at the time of its purchase, 5) Tanner was aware of the restrictions of use and the requirement that affirmative action by the City Council to rezone by ordinance was necessary, and 6) Tanner did not raise any technical objection as to the validity of Ordinance No. 347.

Based on the foregoing, we cannot say that the chancellor’s findings are clearly against the preponderance of the evidence as to the City’s decision not to rezone Tanner’s property.

Affirmed.


text:
    Richard WEBER v. James Brent BAILEY
    90-65
    787 S.W.2d 690
    Supreme Court of Arkansas
    Opinion delivered April 30, 1990

      Adams Law Firm, by: Johnny L. Nichols, for appellant.

      Roy & Lambert Law Firm, by: David E. Morris, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal arises out of an automobile accident involving the appellant, Richard Weber, and the appellee, James Brent Bailey. We affirm.

Weber was driving his pickup truck northbound on State Highway 7, through Bergman, Arkansas, when he was stopped by a flagman due to construction work being done on the road going into Tyson’s mill. Another vehicle was stopped approximately twelve to fourteen feet in front of him. Bailey, who was driving a pickup truck pulling a stock trailer, came over the crest of a hill, saw the vehicles ahead of him, and applied his brakes, but was unable to stop in time to avoid a rear end collision with Weber’s truck.

Bailey testified that he was driving forty to forty-five miles per hour at the time of the accident, but also stated that he did not know specifically how fast he was going. The posted speed limit at the accident scene was thirty-five miles per hour.

The State police officer who investigated the accident estimated Bailey’s speed to be forty to fifty miles per hour, based upon the skid mark length of 117 feet, four inches. However, he admitted he was not an expert in this area.

Both the officer and Bailey testified that they did not see any warning signs on the incline of the hill. An eyewitness to the accident estimated that Bailey had 350 feet of unobstructed view of the road in front of him immediately prior to the accident. However, Bailey testified he first saw the other vehicles when he crested the hill, which was forty or fifty yards from the vehicles.

At the close of Bailey’s case, Weber moved for a directed verdict on the issue of liability based upon the uncontroverted testimony at trial. The court denied the motion, and the jury returned a verdict in favor of Bailey. Weber filed a motion for a new trial or for judgment notwithstanding the verdict, which was also denied. From this order, Weber appeals.

For reversal, Weber contends that the trial court erred in refusing to grant a new trial in that the jury verdict was contrary to the evidence. We disagree.

Ark. R. Civ. P. 59(a) provides that a new trial may be granted when the verdict or decision is clearly contrary to the preponderance of the evidence. Where a motion for new trial is denied, the test on appeal, viewing the evidence in a light most favorable to the party resisting the motion, is whether there is substantial evidence to support the jury verdict. Drope v. Owens, 298 Ark. 69, 765 S.W.2d 8 (1989).

In Morton v. American Medical Int’l, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985), the plaintiffs brought suit against the defendant for personal injuries sustained in a slip and fall accident inside the entrance to defendant’s hospital. The defendant denied liability. At trial, one of the plaintiffs testified that the floor was very slick. Two witnesses who saw her fall also testified that the floor was slick. The jury returned a verdict for the defendant.

On appeal, the plaintiffs contended that there was no substantial evidence to support the verdict. In affirming the trial court, we stated:

We are not aware of any Arkansas case in which a verdict for the party not having the burden of proof has been set aside in a negligence case solely because it was not supported by substantial evidence. . . . The Supreme Court of Missouri correctly stated the common law rule, which also governs in Arkansas, in Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558 (1931):
The burden was not on the defendant, but was on the plaintiff to make out the case stated in his petition. In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted or unimpeached.

We followed Morton in Schaeffer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985). See also Barger v. Farrell, 289 Ark. 252, 711 S.W.2d 773 (1986); Takeya v. Didion, 294 Ark. 611, 754 S.W.2d 614 (1988). In Schaeffer, the plaintiffs vehicle was struck from behind by the defendant’s vehicle as the plaintiff slowed to stop in traffic. The jury returned a verdict for the defendant. Following the verdict, the plaintiff moved for a judgment notwithstanding the verdict or for a new trial. The court denied the motions, and the plaintiff appealed contending that there was no substantial evidence to support the verdict and that the trial court erred in refusing to grant her motions.

In affirming, we stated:

It is undisputed that appellant’s vehicle was struck from the rear by the appellee’s vehicle. Appellant assumes from that fact alone the jury was obligated to return a verdict in her favor. That is not our law. A plaintiff must prove that she sustained an injury, that the defendant was negligent, and that the negligence of the defendant was the proximate cause of her injuries. See AMI 203. . . . Where the sufficiency of the evidence to support a verdict is the issue on appeal, the standard of review is whether the verdict is supported by substantial evidence. Obviously in appeals from a verdict for the defendant the rule cannot always be read literally, as the defendant may have introduced little or no proof, yet the jury found against the plaintiff. It makes little sense in such cases for the plaintiff to argue the strict application of the rule, insisting that a reversal is required because the defendant’s proof failed to meet the substantial evidence test. The evident fact is the plaintiff failed to convince the jury, or fact finder, of an essential element of proof. That seems to have been the case with this jury; it simply did not think the defendant was negligent, or that the plaintiff’s injuries were proximately caused by the negligence, if any. Thus, the lack of substance is not with the defendant’s proof, but with the plaintiff’s. See Morton v. American Medical Int’l, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985).

Our holdings in Schaeffer and Morton are controlling in this case. In short, the questions of negligence and proximate cause were for the jury to decide, and it resolved them in Bailey’s favor.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Richard G. BENNETT v. STATE of Arkansas
    CR 89-149
    789 S.W.2d 436
    Supreme Court of Arkansas
    Opinion delivered April 30, 1990

      Martin, Vater, Karr & Hutchinson, by: W. Asa Hutchinson, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

This case is on appeal for the second time. The appellant, Richard G. Bennett, previously was found guilty of first degree murder and sentenced to life imprisonment. We reversed that conviction, holding that it was prejudicial error to admit prosecution testimony by deposition in the absence of a showing of unavailability of the witness. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). A change of venue was granted, and upon retrial, the appellant was again convicted and sentenced to life imprisonment. Again, we must reverse and remand for another trial.

Appellant makes two assignments of error which he contends mandate reversal and dismissal. Neither one has merit. He makes six other assignments of error which he contends mandate reversal and remand. One of them is meritorious. It concerns the time and manner of giving instructions. By necessity, we first address those points asking for reversal and dismissal.

Appellant argues that his conviction must be reversed and dismissed because of insufficiency of evidence. The argument is without merit. Essentially the same evidence was presented in this case as was presented at the first trial. In our earlier Bennett decision, this court declared:

Based on the foregoing [recitation of evidence], we conclude that there is substantial evidence to support the verdict of guilt.

297 Ark. at 122, 759 S.W.2d at 803.

Where essentially the same evidence was presented at this second trial as in the first, and the appellant in his brief concedes that the evidence is essentially the same, the doctrine of the law of the case applies and sufficiency of the evidence is not a ground for reversal. Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985).

Appellant next argues that his conviction must be reversed and dismissed because of a delay of nine years in the filing of charges. This argument is also without merit.

On the day following the victim’s death, the appellant gave a statement to the sheriff, a deputy sheriff, and a state police investigator. At the time the police did not know the victim had been murdered. The men met in a motel room in the presence of Carl Glass, appellant’s attorney. Glass died in 1985, before the murder charge was filed.

In dragging the river where the victim was found, the authorities found a coat, a blanket, and a lantern cover, which were identified as items worn or used by the victim. The sheriff took custody of some fishing equipment found nearby as well as the aforementioned items found in the water. The appellant claimed that he gave the victim’s ring to the sheriff; an assertion the sheriff denied. In any event, none of the aforementioned evidence could be produced by the sheriff’s office by the time of trial.

The appellant contends that the delay in charging until after the death of the attorney was prejudicial and insists that when it is coupled with loss of the items of evidence from the sheriffs office, a dismissal of the charge is mandated.

We have recognized that there may be instances where prosecutorial delay in the bringing of criminal charges may constitute prejudicial error requiring a dismissal of those charges. Simply because the statute of limitations has not run, the State is not justified in unduly delaying the filing of charges. Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984). The key element, of course, is whether or not a prejudice results which would require a dismissal.

All of the witnesses testified about the items of property recovered at the scene with the exception of the victim’s ring. The testimony concerning the disposition of the ring would have been controverted regardless of whether the case had been tried immediately following the incident or several years later. Where no controversy existed regarding the items of property received by the sheriff, it cannot be said that, simply because the property was not physically present at the trial, prejudice occurred.

Further, there is no allegation that the deceased attorney had any special knowledge which would have proved beneficial to the appellant at trial. Even though the attorney was present when the appellant gave his statement, the fact that he died before the appellant was charged fails to establish prejudice justifying a dismissal of the charges.

Appellant’s next assignment of error is well taken. It concerns the time and manner of giving instructions to the jury and requires reversal and remand for yet another trial.

The trial judge did not orally instruct the jury at the conclusion of the evidence. Instead, after voir dire and before opening statements he orally instructed on the respective duties of judge and jury (AMCI 101); personal observations and experiences (AMCI 103); credibility of witnesses (AMCI 104); expert witness (AMCI 105); circumstantial evidence (AMCI 106); burden of proof (AMCI 107); the filing of the information not to be considered as evidence (AMCI 108); presumption of innocence (AMCI 109); reasonable doubt (AMCI 110); and first degree murder (AMCI 1502 and 1507).

Four days later, at the conclusion of the case, counsel for the appellant requested that the court again instruct the jury on all the applicable law. The court refused the request to repeat the instructions but did give oral instructions on the character evidence (AMCI 204) and the range of punishment (AMCI 6100).

Following closing arguments and upon the retirement of the jury to deliberate, all of the instructions were given to the jurors in written form, for their use during deliberation. Appellant argues that the procedure used was in violation of the applicable law and he was prejudiced. The argument is well taken.

Arkansas Code Annotated § 16-89-125 provides:

When the evidence is concluded, the court shall, on motion of either party, instruct the jury on the law applicable to the case ....

The meaning of the statute is so clear that it does not need interpretation. It means just what it says.

The State, tacitly acknowledging its vulnerable position on this point, argues that A.R.Cr.P. Rule 33.3, when read in conjunction with the above quoted statute, authorizes the procedure utilized in this case. Rule 33.3 provides that upon request of counsel or juror “it shall be the duty of the presiding judge to deliver to the jury immediately prior to its retirement for deliberation a typewritten copy of the oral instructions given the jury.” Rule 33.3 does not contravene or modify the statute. The rule is based upon the assumption that oral instructions are to be given at the conclusion of the evidence. The action of the trial judge in giving all but two of the oral instructions at the beginning of the trial was in violation of the statute.

The State argues that the error was harmless since all of the instructions were repeated at the conclusion of the trial by the trial judge giving the jury copies of the written instructions. We reject the argument.

Ten of the instructions were given orally at the beginning of the trial. At the end of the trial, four days later, two others were given orally. Under such circumstances jurors most likely selected and evaluated evidence concerning the subject matter of the initial ten instructions differently than they evaluated evidence dealing with the subject matter of the later two instructions. As described by Elwork, Sales, and Alfini, Making Jury Instructions Understandable, § l-4(b) (1982):

Psychologists have for years made distinctions between incidental and intentional learning. When given instructions as to what material they are expected to learn, people will learn it more effectively by concentrating on the relevant parts and paying less attention to the irrelevant ones. This effect has been shown empirically with many different types of materials and in many situations. Thus, it is reasonable to assume that if jurors knew what is relevant to their verdict at the beginning of a trial, they would be better able to focus on relevant evidence as it is being presented, and later remember it.

On the other hand, when instructions are given at the end of a trial, jurors probably evaluate the evidence on the basis of their own sense of justice. As explained in Making Jury Instructions Understandable, supra:

[C]harging a jury at the end of a trial assumes that they passively listen to all of the evidence without evaluating it. For years psychologists have made similar assumptions about people who participated in their experiments. Recently, an entire area of research has refuted that assumption. Many researchers have shown that people in psychological studies do their best to figure out what the experiment is about and what the experimenter is trying to prove, and then proceed intentionally to make the experiment a success, although some do just the opposite. This entire area of research asserts that people are never passive receivers of information, but rather are constantly and actively interpreting information and trying to find its meaning. If people are not passive in an experimental study, we have no reason to assume that jurors can be passive during a trial, a social situation in which human emotion is constantly displayed. Psychological knowledge would suggest that jurors are, like everyone else, active and selective receivers of information. Thus, it is reasonable to assume that while waiting for the instructions to be given at the end of the trial, jurors probably select and evaluate evidence in terms of their own sense of morality and justice.

Accordingly, the timing of the giving of instructions can make a difference in a verdict. As explained in Making Jury Instructions Understandable, supra:

[T]wo studies have directly examined the effects of the timing of presentation of jury instructions. In one study, we found that the presentation of jury instructions before the evidence resulted in jurors having different sets of beliefs about the facts of a case. This finding can be understood in light of the arguments we presented above; that is, by presenting instructions at the beginning of a trial, jurors are more likely to selectively remember portions of the evidence that are truly legally relevant, as opposed to those that jurors might assume are relevant when they do not have the benefit of the instructions. What effect might a different set of beliefs about the facts have on a trial’s outcome? The answer is obvious, but for the benefit of doubters, two researchers empirically demonstrated that the presentation of instructions before the trial creates changes in verdicts.

By mixing the time of giving instructions so that some are given at the beginning of the trial and some are given at the end of the trial, the jurors in this case most likely evaluated some of the evidence by selective recollection and the rest by their incidental recollection. No person should have his liberty judged under such circumstances.

Prejudice may well have resulted for another, and even more important, reason. The trial judge initially instructed the jury on everything except character evidence and the range of punishment. Then, four days later, instructed on those two subjects. The jurors may well have inferred that the much respected trial judge, after hearing the evidence, thought the accused was guilty, and that is the reason he waited to give the punishment instruction. Certainly it was emphasized, and one instruction should not be emphasized over others. Price v. State, 114 Ark. 398, 170 S.W. 235 (1914).

Three other assignments of error must be addressed because they will likely arise again upon retrial, but none of them have merit.

In the first of these appellant argues that a statement he gave should be suppressed as evidence. The pertinent facts are as follows. On the day following the victim’s death, the appellant, his attorney, the sheriff, a deputy sheriff, and a state police investigator met in a motel room for the express purpose of obtaining a statement from the appellant. Without giving any warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), the investigator asked the appellant to describe what had occurred the previous night. The appellant then made an oral statement.

Prior to the trial, a motion to suppress the appellant’s statement was filed, and after a hearing, the court denied the motion. The state police investigator denied that the appellant was suspected of any crime at that time; in fact, at that point the victim’s body had not been recovered from an apparent natural drowning.

As noted in Gardner v. State, 296 Ark. 417, 54 S.W.2d 518 (1988), the warnings required by Miranda v. Arizona, supra, come into play only when the defendant is subjected to custodial interrogation or its functional equivalent. No Miranda warning is required if the questioning is purely investigatory.

At the time the statement was made, an attorney was present who identified himself as the appellant’s counsel. The appellant testified at the suppression hearing that he did not feel compelled to stay or to talk to the officers. These circumstances presented a question for the trial court’s resolution. We cannot say that a denial of the motion to suppress constitutes error.

The appellant next contends that the trial court committed reversible error in permitting the sheriff to testify as an expert witness. The trial court did not abuse its discretion because the sheriff testified he had a great deal of experience concerning the subject of his testimony.

Appellant next argues that the trial court erred in refusing to admit into evidence a letter, but the letter in question is not abstracted as required by Cox v. State, 298 Ark. 312, 772 S.W.2d 336 (1989). We have consistently held that the record to be considered on appeal is confined to that which has been abstracted. Lee v. State, 297 Ark. 421, 762 S.W.2d 790 (1989).

Appellant raises two additional points of appeal, neither of which has merit and neither of which is likely to arise upon retrial.

Accordingly, we do not address them.

Reversed and remanded for a new trial.


text:
    Margie Katrina McCORMAC (Lewis) v. Michael Bryan McCORMAC
    90-43
    787 S.W.2d 692
    Supreme Court of Arkansas
    Opinion delivered April 30, 1990

      Phil Stratton, for appellant.

      Linda P. Collier, for appellee.
   David Newbern, Justice.

This is an appeal from a court’s decision rendered on a counter-claim. Because no decision was made on the underlying claim, we must dismiss the appeal pursuant to Ark. R. Civ. P. 54(b).

The appellant, Margie Katrina McCormac Lewis, and the appellee, Michael Bryan McCormac, were divorced. Mr. Mc-Cormac sought to have Mrs. Lewis held in contempt for violation of his right to visit a child born to Mrs. Lewis during their marriage. Mrs. Lewis counter-claimed for a declaratory judgment that Mr. McCormac was not the father of the child and sought cancellation of all previous orders regarding visitation and support.

The chancellor entered an order on Mrs. Lewis’s petition to deny Mr. McCormac’s paternity. The petition was denied on the ground of res judicata. The chancellor wrote that the issue was controlled by the divorce decision in which Mr. McCormac’s paternity of the child was determined.

The record contains no decision on the matter of contempt. This is a case in which there were multiple claims. Rule 54(b) provides that, where there has been a decision of fewer than all claims presented, there is no final decision unless the court has directed “entry of a final judgment as to one or more but fewer than all of the claims . . . only upon an express determination that there is no just reason for delay. . . .” That procedure was not followed. The appeal is dismissed. Wylie v. Tull, 295 Ark. 481, 749 S.W.2d 325 (1988); Tackett v. Robbs, 293 Ark. 171, 735 S.W.2d 700 (1987).

Appeal dismissed.