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

text:
    SPRINGDALE BOARD OF EDUCATION v. Machele BOWMAN, a Minor, by Sharon Luker, Her Mother, as Natural Guardian and Next Friend, and Sharon Luker, Individually
    87-147
    740 S.W.2d 909
    Supreme Court of Arkansas
    Opinion delivered December 7, 1987

      Cypert, Crouch, Clark & Harwell, by: Charles L. Harwell, for appellant.

      Pearson, Woodruff & Evans, by: C. Thomas Pearson, Jr., for appellee.
   Tom Glaze, Justice.

The appellant, the Springdale Board of Education, appeals from the Washington County Chancery Court’s interlocutory-mandatory injunction, which barred the Board and all personnel of the Springdale School District from enforcing the expulsion of appellee, Máchele Bowman, from her classes at Springdale High School. This court has jurisdiction of this appeal pursuant to Ark. R. App. P. 2(a)(6) and Ark. Sup. Ct. R. 29(f).

This litigation ensued when the Board agreed with the Springdale school officials that Máchele Bowman had violated school policy by “receiving drugs on the school grounds” and that she should be expelled for having done so. Bowman filed a petition for mandatory injunction, alleging, among other things, that no illegal drugs were involved, that the Board’s decision was arbitrary, capricious and unreasonable, and that its action denied her access to the public school system as she is guaranteed by Ark. Stat. Ann. § 80-1501 (Supp. 1985).

The Board filed a motion to dismiss, claiming the chancery court did not have subject matter jurisdiction. Upon being denied that relief, it defended Bowman’s assertions stating the evidence was clearly sufficient to justify the Board’s decision to expel Bowman. The trial court ruled in Bowman’s favor, ordering the Board to readmit her into school. The Board promptly filed its motion with the supreme court to stay the lower court’s order until this case could be decided on appeal. We denied the Board’s motion, and Bowman has since completed her high school requirements. In fact, Bowman has since graduated, and she now seeks to dismiss this case for mootness. Because the issues raised in this matter are of public interest and practical importance, as well as are ones which are subject to repetition, we deny Bowman’s motion to dismiss the appeal. See Netherton v. Davis, 234 Ark. 936, 355 S.W.2d 609 (1962).

For its first point for reversal, the Board argues that the affirmative relief sought by Bowman was actually one of mandamus and that the chancery court had no jurisdiction to hear a mandamus action. See Springdale School District v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981). In addition, the Board contends mandamus is the procedure by which courts review school board actions in the expulsion of students, and, to support this proposition, cites the cases of Williams v. Board of Education for Marianna School District, 274 Ark. 530, 626 S.W.2d 361 (1982) and Fortman v. Texarkana School District No. 7, 257 Ark. 130, 514 S.W.2d 720 (1974). We cannot agree with either of the Board’s arguments on this point.

The Williams and Fortman cases did involve situations where students were expelled, and the students sought mandamus relief in circuit court against the respective school districts requesting they be reinstated. Nevertheless, the trial court in each case denied such relief, and the supreme court affirmed. It is settled law that mandamus will not be used to control a public official in a discretionary act. Lewis v. Conlee, 258 Ark. 715, 529 S.W.2d 132 (1975). And, while such discretion is not unlimited, id. at 720, 529 S.W.2d at 135, the supreme court in the Williams and Fortman cases simply held that the school officials in those situations had not abused their discretion when expelling the students. Although the Williams and Fortman decisions are helpful in reviewing applicable law when considering school board actions in expelling students, those holdings in no way indicate that a mandamus action is the required remedy to measure the reasonableness of a board’s action in such cases. To the contrary, the Fortman court, quoting from Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d 3 (1962), said:

In this State a broad discretion is vested in the board of directors of each school district in the matter of directing the operation of the schools and a chancery court has no power to interfere with such boards in the exercise of that discretion unless there is a clear abuse of it and the burden is upon those charging such an abuse to prove it by clear and convincing evidence. (Emphasis supplied.)

The Safferstone case involved school patrons, from a certain school attendance area, who brought action in chancery court for an injunction to enjoin the Little Rock School Board from transferring students, who resided in the patrons’ area, to a school situated in another or adjacent area. Like in Safferstone, Bowman, in the instant case, tested the Board’s action in expelling her by filing a complaint for an injunction in chancery court, but the form or nature of relief requested differs here since she asked for an affirmative act instead of asking that an act be enjoined, viz., that the Board be compelled to readmit Bowman into high school.

The Board cites the case of Nethercutt v. Pulaski County Special School District, 248 Ark. 143, 450 S.W.2d 777 (1970) for the proposition that a mandamus action is not cognizable in chancery court. Of course, such a proposition is correct and is one with which we take no exception. The Nethercutt case involved two school teachers who sought both a mandatory injunction and a mandamus action to compel the execution of their annual contracts to restore them to their jobs and to pay them their salaries. The supreme court rejected the school teachers’ argument that the chancery court had power to issue their request for a writ of mandamus, and added it was settled that equity had no jurisdiction to enforce an executory contract for personal services since the remedy at law was adequate. In the instant case, Bowman sought an injunction, not a mandamus, and, unlike in Nethercutt, the parties had no contract between them which would require either of them to seek a remedy at law. The same can be said to distinguish the case of Jameson, 214 Ark. 78, 621 S.W.2d 860, cited in the dissent. The Jameson case, too, concerned a school teacher who sought reinstatement and pay from the school district, and this court found the teacher’s action was one based on a contract implied in law.

The real importance of Jameson to the facts here is found in the rule — first stated in Maddox, et al. v. Neal, et al., 45 Ark. 121 (1885) — that a writ of mandamus will issue whenever the directors of a school district fail or refuse to do an act which is plainly their duty to do. More specifically, a mandamus action enforces the performance of a legal right after it has been established; its purpose is not to establish a right. See Boone County v. Apex of Arkansas, Inc., 288 Ark. 152, 702 S.W.2d 795 (1986). There must be no discretion available to the ordered party to perform the act. Id., 288 Ark. at 154, 702 S.W.2d at 796.

In the instant case, Bowman had no clear or specific right to attend school if, indeed, she violated a valid school policy which authorized either her suspension or expulsion. The Board unquestionably had the discretion to enforce school policy, and whether Bowman violated that policy was a contested issue between the parties. Thus, Bowman’s recourse was to establish her right to continue in school by showing she did not violate the policy or the Board in some way acted arbitrarily, capriciously or contrary to law. Clearly, Arkansas law permits a person to apply for injunctive relief in a form which requires acts to be restrained or mandated, see ARCP Rule 65(e), and Bowman, in pursuing that relief in chancery, was entitled to establish her right to attend school by testing the Board’s actions in enforcing the school policy against her. Therefore, under the circumstances of this case, we have no hesitancy in holding the chancellor had jurisdiction to decide Bowman’s request for injunctive relief. Therefore, we affirm him in this respect.

While we agree the trial court possessed the power to hear and decide this cause, we are at the same time of the belief that it erred when ordering the Board to readmit Bowman into school. Once again, we look to the Fortman and Williams cases for guidance. In Fortman, the court spoke approvingly of what it called controlling principles stated by Professor Bolmeier in “The School in the Legal Structure,” § 16.17 (2d Ed. 1973). Although we need not recite all of the passages the court set forth in Fortman, we do believe the following parts are particularly instructive here:

The legal principle is also firmly established that school authorities may expel or suspend from school any pupil who disobeys a reasonable rule or regulation. School officials are clothed with considerable discretionary authority in determining whether or not a rule has been violated, and, in the event they conclude that a violation has occurred, they also have discretionary authority in determining the nature of the penalty to be imposed — providing it is not arbitrary or unreasonable.
* * *
The courts look somewhat askance at acts of suspension and particularly at expulsion, as methods for forcing pupils’ conformance to rules and regulations. Some incorrigible pupils violate school regulations for the very purpose of being removed from the school environment. It should be realized that when a pupil is denied school attendance, he is deprived of education designed for his betterment. Of course when a pupil’s misconduct or disobedience is of such a grave nature that his presence is disrupting to the school and detrimental to the morale of the student body, suspension, or even expulsion, is likely to be judicially condoned.

As stated earlier, our court has adhered to the rule that a chancery court has no power to interfere with school district boards in the exercise of their discretion when directing the operation of the schools unless the boards clearly abuse their discretion. The burden is upon those charging such an abuse to prove it by clear and convincing evidence. Fortman, 257 Ark. at 134, 514 S.W.2d 720. Stated in yet other terms, the court, in acknowledging a school board’s power to expel a student, has held it does not have the power to substitute its judgment for that of such a board and will do so only when the court determines the board’s judgment was arbitrary, capricious or contrary to law. Williams, 274 Ark. at 533-34, 626 S.W.2d at 363. From our careful examination of the record before us, we cannot say the Board abused its discretion or acted arbitrarily, capriciously or in any way contrary to law. In so holding, we recount the evidence we believe supported the Board’s decision to expel Bowman.

The Board policy in issue was approved on October 9,1984, and it prohibited a student’s possession or use of controlled or uncontrolled substances alike without first obtaining the permission of proper school authorities and acting in accordance with the school district’s policy relative to medication and use of medicine. A violation of the policy carried sanctions of probation, as a minimum, and expulsion from school for one semester, as a maximum. The Board offered testimony that the policy was instituted to assist in the dispensement of medication to students so school officials can monitor the students’ health, and because the policy makes no distinction between illegal or lawful drugs, the Board is afforded a means by which it can control all drug use in the Springdale schools. Bowman never challenged the constitutionality or legality of the actual terms or limits contained within the policy.

At trial, the Board offered substantial evidence which indicated that Bowman violated the Board’s drug policy. That evidence began with two Springdale High School coaches who became suspicious of the actions of four girl students who were standing by a jeep during lunch on March 6, 1987. The coaches’ surveillance and investigation resulted in their retrieving from the glove box of the jeep a plastic baggie containing three foil packets that contained approximately fifty pills which they described as “white crosses.” The jeep actually belonged to a fifth girl, Paige Harrison, whom the school authorities subsequently interviewed. The girls gave varying accounts concerning who had purchased or received the pills, but one girl, Kim Spencer, admitted to the school principal that she had agreed to sell a packet for $3.00 to three girls, one of whom was Bowman. When confronted by the principal, Bowman admitted that she had paid Harrison for the pills at a time and place away from school, but denied ever having received the pills. Spencer, however, said that she gave pills to Harrison who in turn was to deliver them to Bowman. Harrison related she made that delivery to Bowman on March 6, 1987, in the girls’ bathroom at school after 5th period. Although Bowman denied Harrison’s version of what occurred, she did concede in an affidavit that the pills she allegedly received were over-the-counter diet aids and were represented, as such, to her.

The Springdale school authorities, after considerable investigation, expelled Spencer and two other girls for the remainder of the semester because of their involvement in the selling and purchasing of the pills on school property. At first Harrison was only suspended for five days for her involvement, but after she admitted delivering the pills to Bowman, Harrison was also expelled for the rest of the semester. After further consideration of Bowman’s alleged involvement, the school authorities decided to believe Harrison’s statement that she gave the pills to Bowman at school, and they expelled Bowman for her participation in violating the school’s drug policy.

Unlike the trial court, we believe the school authorities proceeded reasonably in discharging their duties in enforcing the Board’s drug policy. The chancellor expressed his genuine concern that drug use should and must be controlled in the public schools, but he believed that the proof accumulated by school officials failed to show Bowman actually received drugs since no laboratory or other evaluation had been made of the pills. We fail to perceive that as a serious problem, especially in view of the policy adopted by the Board. Again, the policy’s terms were broad enough to cover all drugs, including so-called diet aids, which can be sold over the counter. Based upon the evidence, the Board could reasonably believe, and did, that Bowman paid for pills, covered under Board policy, and received them on school grounds. Accordingly, we reverse the trial court’s decision finding the Board’s actions in this matter were arbitrary, capricious and contrary to law.

Hickman, Purtle and Dudley, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I join Justice Purtle’s dissent but write separately to emphasize my position.

The chancery court did not have jurisdiction. In two cases, both involving the discipline of students by a school board, the aggrieved parties filed a petition for writ of mandamus in circuit court. Fortman v. Texarkana School Dist. No. 7, 257 Ark. 130, 514 S.W.2d 720 (1974); Williams v. Board of Education, 274 Ark. 530, 636 S.W.2d 361 (1982). It has been the law in Arkansas since 1909 that a pupil claiming to have been suspended maliciously, arbitrarily or without reason has a remedy by mandamus to compel the school authority to reinstate the pupil. Douglas v. Campbell, 89 Ark. 254, 116 S.W. 211 (1909).

This case is in chancery court through a legal fiction, an oxymoron, called a mandatory injunction. (Literally, a mandatory injunction is to make someone not do something they have done.)

Courts of equity have jurisdiction to issue injunctions, preventing acts before they occur, if there will be irreparable harm unless the injunction is issued, and if there is no adequate remedy at law. Ahrent v. Sprague, 139 Ark. 416, 214 S.W. 68 (1919).

In this case the act has already occurred — the student has been expelled — and there is an adequate remedy at law — mandamus in circuit court. The mandatory injunction is a legal fiction that cannot create jurisdiction.

I would reverse on grounds of jurisdiction.

John I. Purtle, Justice,

dissenting. It appears to me the majority opinion is an attempt to restore authority in the chancery courts to issue writs of mandamus. This Court ended such authority in the case of Nethercutt v. Pulaski County Special School District, 248 Ark. 143, 450 S.W.2d 777 (1970). There the school board had declined to renew the contract of Nethercutt and he filed suit in chancery seeking a “mandatory injunction” directing the school board to execute and deliver his contract for the current year. He also sought a writ of mandamus restoring him to his former position and ordering the board to pay his back salary. The school board demurred on the ground that chancery did not have jurisdiction of the matter alleged in the complaint. The complaint was amended but the board stood on its demurrer and the chancellor dismissed the amended complaint. This Court affirmed the chancellor’s holding that he did not have jurisdiction to hear the petition for mandatory injunction and mandamus.

Although the General Assembly had enacted legislation authorizing chancery courts to rule on petitions for mandamus, (see Ark. Stat. Ann. § 33-101 (Repl. 1962)), this Court in Nethercutt stated:

It appears this is the first time we have been asked to focus our attention upon the constitutionality of this statute [Act 54 of 1939]. We must agree that the provision of this act, with respect to the jurisdiction of the chancery court in the case at bar, is in violation of Article 7, §§ 11 and 15 of our Constitution. . . . The writ of mandamus is a common law writ and a remedy at law which was unknown to equity procedure. . . .
The legislature can neither enlarge nor diminish the jurisdiction of chancery courts and any attempt to do so is unconstitutional. ... It follows, therefore, that jurisdiction of writs of mandamus, being traditionally common law writs, is restricted to and vested solely in our circuit or law courts.

The majority attempts to avoid the issue of the proper forum to entertain a petition for a writ of mandamus by labeling the relief sought a “mandatory injunction.” Nethercutt also tried to get around the mandamus writ by calling his complaint a “mandatory injunction.” This Court called it correctly when it stated: “Obviously, it is the thrust of appellants’ complaints that by mandamus appellee be compelled to renew appellants’ teaching contracts and pay them according to the contractual terms for the ensuing school year. We hold that such an action is not cognizable in equity.” Therefore, equity does not have jurisdiction to issue a writ of mandamus even though the language of the complaint called the relief sought by the name of a mandatory injunction.

This court has held since Goings v. Mills, 1 Ark. 11 (1837), that mandamus will lie only to enforce a clearly established right for which there is no other adequate remedy. An injunction is preventative and affords relief against future acts. Comer v. Woods, 210 Ark. 351, 195 S.W.2d 542 (1946). Mandamus will not lie to determine future rights. Its purpose is to enforce an established right or to enforce the performance of a duty. Boone County v. Apex of Arkansas, Inc., 288 Ark. 152, 702 S.W.2d 795 (1986). Chandler v. Perry-Casa Public Schools District #2, 286 Ark. 170, 690 S.W.2d 349 (1985). Mandamus will also not lie to compel a specific course of action if the matter is within the discretion of the public official or body. Lewis v. Conlee, 258 Ark. 715, 529 S.W.2d 132 (1975). Whether a matter is within the discretion of a board, agency, or court, mandamus is cognizable only in the circuit court. Williams v. Board of Education, 274 Ark. 530, 626 S.W.2d 361 (1982); Springdale School District v. Jameson, Judge, 274 Ark. 78, 621 S.W.2d 860 (1981); and Fortman v. Texarkana School District #7, 257 Ark. 130, 514 S.W.2d 720 (1974).

In Springdale School District v. Jameson, Judge, supra, a teacher was attempting in circuit court to compel a school district to reinstate him in his job. The school district moved to dismiss, or in the alternative, to transfer to chancery. The circuit court denied both motions. The school district then sought a writ of prohibition from this Court. In denying the petition for a writ we stated that the prayer for reinstatement was in the nature of a petition for a writ of mandamus. A writ of mandamus is defined at Ark. Stat. Ann. § 33-102 (Repl. 1962) as an order “granted upon the petition for an aggrieved party or the State when the public interest is affected, commanding an executive, judicial or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law.” We held that a mandamus action is cognizable in circuit court and not in chancery, citing Nethercutt.

In Chandler v. Perry-Casa Public Schools, supra, we affirmed the holding by the circuit court that mandamus would not lie to compel a school board to assign a teacher to specific duties. Citing Jameson, supra, we explained that the school board had not failed or refused to do an act which was plainly its duty.

In the case before us the appellee seeks to establish her right to reenter school. Although she labeled her prayer for relief a mandatory injunction, she is obviously, like Nethercutt, seeking mandamus to compel the board to readmit her to school. It is clear that circuit courts have the authority to compel a public entity to act. The majority cites only Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d 3 (1962),for the proposition thatcourtsof equity also have such power. In Safferstone students were seeking in chancery to prevent their transfer to another school; however, Safferstone predated Nethercutt, and its prayer, which was denied, was not seeking to enforce an established right, but to prevent a future action.

The result of the majority’s decision is that a chancery court may compel a public body to act. The majority recognizes the law and the precedent but it mistakenly gives chancery courts jurisdiction which belongs to circuit courts. Since the chancery court does not have subject matter jurisdiction, it is not necessary to determine whether the board’s action was capricious, arbitrary, or contrary to the law.

Hickman and Dudley, JJ., join this dissent.

       Bowman did allege the Board’s actions in expelling her violated certain due process requirements, but except for arguing she had not received advance notice of the actual policy she was accused of violating, little was said or argued on this point and it is clear Bowman was afforded administrative reviews or hearings before this cause was actually filed in court. In this appeal, Bowman offers no citation of authority or argument dealing with the reasonableness or constitutionality of the drug policy adopted by the Board.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    ENSTAR CORPORATION, et al. v. CRYSTAL OIL COMPANY, et al.
    87-170
    740 S.W.2d 630
    Supreme Court of Arkansas
    Opinion delivered December 7, 1987

      Keith, Clegg & Eckert, for appellant.

      Crumpler, O’Conner & Wynne, for appellee.
   Tom Glaze, Justice.

Appellants claim ownership of an oil and gas leasehold estate that is in Columbia County, Arkansas, and, in pertinent part to the case here, includes lands described within the SE'/4 of Section 10, Township 18 South, Range 22 West. This estate was the result of three leases acquired by appellants in the mid-to-late 1930’s. Appellants brought this action to confirm and quiet title in their leasehold estate, seeking to cancel leases that their lessors entered into with appellee, Crystal Oil Company, in 1974. Appellants also sought to recover the value of all minerals that Crystal Oil had extracted from the appellants’ leasehold estate and to enjoin it from any further extraction of oil, gas and associated hydrocarbons from the estate.

Appellants drilled four wells on the 241 acres covered by their three leases; three wells were located in the SEl/4 of Section 10, and one was located in the NVi of Section 15. In 1949, appellants contributed three of the four wells to the Dorcheat Field Unit, which was intended to repressure the Smackover Limestone Formation. While the Dorcheat Unit has produced continuously since 1943, none of appellants’ previously mentioned four wells has produced petroleum hydrocarbons since December 1952.

The Crystal Oil leases covered land located in the NVi of the SE>/4 of Section 10. That land was included within appellants’ described leasehold estate, but is outside the Dorcheat Unit. Appellants previously had drilled only one well, the Sayers Unit No. 1, on this N!/2 tract, an eighty-acre tract situated in the Cotton Valley Formations. The well was commenced in April 1944, but formally ceased production in August 1952. Appellants claimed, by argument, that the N'/2 tract had been voluntarily unitized after the Dorcheat Unit was effective in 1943. In 1976, Crystal Oil drilled the Sayers No. 1 well in the NW'Á of the SE!4, and, in 1978, it drilled the Sayers No. 2 well, located in the NEVi of the SEÍ4. Both wells produced, and continue to produce, commercial quantities, and they are the primary objects of appellants’ suit.

The trial judge determined that, for twenty-four years, the appellants had not worked their oil well located in the N’/i of the SEí4 and had since abandoned it. He found further that the proof reflected that a prudent operator would have drilled the well, and in fact, that was what happened — Crystal Oil having successfully done so beginning in 1976. In view of these and other findings, the judge cancelled the appellants’ leases covering the N'/i of the SE'/4 of Section 10 on which Crystal Oil’s two wells are located. In cancelling the leases, the judge concluded the appellants had breached the implied covenant of the lease to develop the owner-lessors’ N>/2 tract; he further held that because of appellants’ delay in challenging Crystal Oil’s interest in the NVi tract, the appellants’ present action was barred by the doctrine of laches. We affirm.

The primary question here is the same as that posed in Byrd v. Bradham, 280 Ark. 11, 655 S.W.2d 366 (1983) and Stevenson v. Barnes, 288 Ark. 147, 702 S.W.2d 787 (1986): Whether a lease should be cancelled because of the lessee’s violation of an implied covenant to develop the leasehold for the production of oil and gas.

In Byrd, the court related the settled law on the subject as follows:

In oil and gas leases where royalties constitute the chief consideration, an implied covenant exists that the lessee will explore and develop the property with reasonable diligence. (Citation omitted.) The duty to explore extends to the entire tract, and this is especially true where paying quantities of oil have been found on a part of the tract. (Citation omitted.)
Of course, due deference must be given to the judgment of the lessee in determining whether to drill, but the lessee must not act arbitrarily. (Citation omitted.) Furthermore, the lessee must act not only for his own benefit but also for the benefit of the lessor. (Citation omitted.) The lessee’s obligation to explore is a continuing one, even after paying quantities of oil are discovered, in order to effect the purpose of the lease. (Citation omitted.) Production on only a small portion of the leased land does not justify allowing the lessees to hold the entire leasehold indefinitely, thus depriving the lessor of receiving royalties from another arrangement. (Citation omitted.) (Emphasis supplied.)

280 Ark. at 13-14; 655 S.W.2d at 367 (1983).

In applying the foregoing principles, a two-fold question arises concerning whether the appellants exercised sound judgment or whether they acted in an arbitrary manner, when choosing not to drill for oil on the leasehold, tract. Cf. Saulsberry v. Siegel, 221 Ark. 152, 252 S.W.2d 834 (1952). Upon conflicting testimony of the numerous witnesses offered by the parties, the trial judge, in his excellent and concise memorandum opinion, stressed that evidence offered by Crystal Oil witnesses, who revealed that they had studied appellants’ own well logs and decided that a prudent operator would have drilled in the Cotton Valley zones. The credibility given Crystal Oil’s witnesses on this point obviously was enhanced somewhat by the fact that the witnesses’ recommendations to drill in the Cotton Valley (N'/2 tract) proved correct, as evidenced by Crystal Oil’s two producing wells. This point, we should add, is a major difference from Saulsberry, 221 Ark. 152, 252 S.W.2d 834, which appellants argue controls here. In Saulsberry, Siegel and others were the owners of a 1922 oil and gas lease under which they drilled some five wells, all but one of which proved unproductive. Those wells were drilled to the Nacatoch sand. Siegel failed to drill any more wells on the leasehold after 1930 until Saulsberry, pursuant to a top lease, drilled and produced oil below the Nacatoch sand. The court pointed out that the record failed to reveal why, or under what theory, Saulsberry decided to drill for the oil; on the other hand, the evidence otherwise tended to support Siegel’s and his associates’ decision not to drill. Here, of course, the information upon which Crystal Oil decided to drill was the appellants’ well logs — which appellants had earlier studied and discounted when deciding to abandon further drilling. Based upon such evidence, the trial judge clearly was justified in concluding the appellants failed to explore and develop the property with reasonable diligence.

Before leaving this point, we note appellants’ argument that, because the price of oil was so low during the period between 1952 and 1974, a prudent operator would not have been justified in re-drilling in the Cotton Valley Formation. Even accepting the validity of appellants’ evidence and argument, we would simply point out that Crystal Oil commenced its drilling in 1976, and appellants had evidenced no plans to commence drilling in 1974 or afterwards. The appellants delayed even in bringing this action against Crystal Oil until 1981, which was seven years after Crystal Oil executed its first oil and gas lease and five years after Crystal Oil drilled and completed its first well. In sum, we believe the facts and circumstances in this case supported the judge’s finding that the appellants, as lessees, did not use reasonable diligence or sound judgment in failing to develop the respective parties’ lease. Thus, given the evidence and the reasonable inferences which can be made from it, we cannot say the judge was clearly erroneous in deciding the appellants breached their duty to explore and develop the property in issue.

This brings us to appellants’ second argument that the trial court erred in deciding appellants’ action was barred under the doctrine of laches. However, because we agree with the trial judge’s decision to cancel appellants’ leases as to NV£ of SE!4 of Section 10, due to the appellants’ breach of implied covenant to develop it, we need not address the laches issue. Accordingly, we affirm.


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

text:
    Opal Bernice WAGONER v. Loy WAGONER
    87-228
    740 S.W.2d 915
    Supreme Court of Arkansas
    Opinion delivered December 7, 1987

      Peter DeStefano, for appellant.

      Elcan & Sprott, by: Frank C. Elcan II, for appellee.
   Tom Glaze, Justice.

This case involves the parties’ divorce action as it pertains to the lower court’s construction of Arkansas’s marital property law, more particularly Ark. Stat. Ann. § 34-1214(B)(5) (Supp. 1985). On July 22, 1987, the Arkansas Court of Appeals, Division II, reversed the Newton County Chancery Court’s decision and, in doing so, held interest income accumulated from the petitioner Opal Wagoner’s non-marital certificate of deposit accounts to be marital property. We granted petitioner’s request for review of the court of appeals’ decision pursuant to Ark. Sup. Ct. R. 29(l)(c) and (6). We affirm the court of appeals’ decision.

Because the court of appeals chose not to publish its decision, we need first to relate the facts giving rise to this appeal. The parties were married for thirty-four years, and during that period, Opal Wagoner’s parents gave her cash gifts which she invested in certificates of deposit bearing only her name and that of her son. Those certificates earned interest during the marriage, totalling $ 19,224.75. About two months before the parties separated, Opal transferred all of her certificate funds, including interest, to her mother. However, her mother said that she intended to return those funds to Opal. Opal said she gave these monies to her mother because her husband, respondent Loy Wagoner, complained about having to pay her mother’s taxes.

Opal Wagoner commenced this divorce action which resulted in the trial court’s decree of divorce, which, in relevant part to this appeal, determined the certificates of deposit, both principal and interest, to be Opal’s non-marital property and not subject to division. As noted earlier, that court’s finding, as to the accumulated interest, was reversed by the court of appeals and is the sole issue presented in this review.

In holding that the accumulated interest income from Opal’s certificates was marital property, the court of appeals relied on its earlier decision of Speer v. Speer, 18 Ark. App. 186, 712 S. W.2d 659(1986). There, the court, in affirming the trial court, held that any accumulation of income — during the marriage — from the husband’s non-marital property constituted marital property. The court rejected petitioner Opal Wagoner’s argument that the Speer decision, which involved rental income earned on premarital farmland, was distinguishable from the facts here. She argued the rent income in Speer was marital property, but the interest paid here on her certificates merely represents an “increase in value” of property, which is excepted from Arkansas’s marital property definition as set out under § 34-1214(B)(5). In rejecting the petitioner’s argument, the court of appeals held that the interest accumulated and reinvested in the certificate of deposit accounts, earned during the parties’ marriage, amounted to an accumulation of income within the meaning of Speer.

While we agree with the result reached by the court of appeals, we do so for a different reason. As can be discerned from the facts in this cause, the situation here involves a gift to the petitioner by her mother during the marriage and, therefore, presents a situation covered by § 344214(B)(1), rather than § 344 214(B)(5). Under § 344214(B)(1), a gift acquired by a spouse is excepted from the definition of marital property, which definition otherwise includes all property acquired by either spouse subsequent to marriage. Thus, by statutory definition, a gift to a spouse is non-marital property. Section 344214(B)(1), however,.does not except from the marital property definition any income from, or increased value of, a gift. That being so, we conclude that, in the instant case, the petitioner’s interest earned from her certificates, during the period she was married to respondent, is marital property. Such a holding is consistent with this court’s understanding of the marital property concept as we explained that concept in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984). In Day, this court held that all earnings or other property acquired by each spouse subsequent to marriage must be treated as marital property, unless falling within one of the statutory exceptions. Day, 281 Ark. at 268, 663 S.W.2d at 722.

Although we do not agree that § 344214(B)(5) applies or controls the facts at hand, we do agree with the court of appeals that the interest earned on petitioner’s certificates during her marriage is income and marital property, and, therefore, that interest could not be said to represent an increase in value of non-marital property. Section 34-1214(B) (5) contains language identical to that found in the Uniform Marriage and Divorce Act. The Commissioner’s note to that Act’s (B)(5) provision states:

The phrase “increase in value” used in (B)(5) is not intended to cover the income from property acquired prior to the marriage. Such income is marital property.

Unif. Marriage and Divorce Act, § 307 (1970 Act).

We note that the Commissioner’s comment concerning this same provision further states, “Similarly, income from other non-marital property acquired after the marriage is marital property.”

While we find the Commissioner’s note to the Uniform Act’s (B)(5) provision to be clear on the subject, our research reveals that other jurisdictions, construing an identical (B)(5) provision, have uniformly held such income earned on premarital property to be marital property. See Branson v. Branson, 569 S.W.2d 173 (Ky. Ct. App. 1978); In re Marriage of Bentivenga, 109 Ill. App. 3d 967, 441 N.W.2d 336 (1982); In re Marriage of Reed, 100 Ill. App. 3d 873, 427 N.E.2d 282 (1981); In re Marriage of Williams, 639 S.W.2d 236 (Mo. Ct. App. 1982); Cain v. Cain, 536 S.W.2d 866 (Mo. Ct. App. 1976). Thus, even under petitioner’s theory of this case, the interest she earned on her certificates of deposit would be marital property and, therefore, distributable as such.

In conclusion of our review of the court of appeals’ decision and de novo review of the proceeding below, we find that the petitioner’s certificates of deposit were gifts under § 34-1214(B)(1). However, because the interest earned on those exceptions listed in § 34-1214(B), we hold that interest to be marital property (income), as that all inclusive term is defined by Arkansas’s statutory law.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I believe the chancellor was correct in holding that the increase in the certificates of deposit remained the separate property of the wife because the certificates themselves were the result of cash gifts from her parents. The parents gave their daughter sums of money which were invested in CD accounts bearing only her name and that of her son. When interest payments accrued, the payments were simply turned back into another CD. In my opinion the growth in the CD account remained the separate property of the wife.

If the parents had given their daughter a block of gold and it had increased in value, I am sure this court would not treat the increase as marital property. Obviously the growth in value of the block of gold could not be considered income or marital property. It is easy to see that such increase is still separate property. Likewise, the CD account has grown and the interest, as well as the principal, remains non-marital property.

We have today taken a considerably different position, in my opinion, than we did in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984); and Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987). I think the majority misinterprets Day because the specific holding in Day is: “What we do hold is simply that earnings or other property acquired by each spouse must be treated as marital property, unless falling within one of the statutory exceptions, and neither one can deprive the other of any interest in such property by putting it temporarily beyond his or her own control, as by the purchase of annuities, participation in retirement, or other device for postponing full enjoyment of the property.” I agree with this statement in Day because it holds that earnings or property acquired by either spouse must be considered marital property unless the statute provides otherwise. Since this property was acquired by gift, it is an exception within the meaning of the statute.

In the Layman case, the husband had received both preferred and common stock in a corporation during the marriage. The value of both classes of stock increased by more than a quarter of a million dollars, yet this court held that the preferred stock and its increase remained the separate property of the husband since it had been received by gift from his parents during the marriage. On the other hand, the increase in the value of the common stock was held to be marital property because it was issued by the corporation to the husband, and apparently was based upon his efforts and skill in managing a profitable business. It was not a gift from his parents like the preferred stock.

Growth is not earnings. The growth in the present case is not the result of any skill or effort on the part of either spouse. This growth resulted from factors other than the ability or earning capacity of either party. Neither is it income from real property, which was held to be marital property in Speer v. Speer, 18 Ark. App. 186, 712 S.W.2d 659 (1986). Money received from the rental of property is certainly income acquired by the parties during the marriage. It is a result of the efforts and agreement of the parties. Sometimes, it seems to me, that courts strain at a gnat but swallow a camel. The legislature no doubt intended for common sense and logic to apply in cases where a statute does not specifically cover the exact factual situation before the court. The majority opinion admits that the law does not specifically require that the increase in these certificates of deposit be treated as income or that it be treated as marital property. The Speer decision was expressly within the terms of the statute. The majority opinion quotes from the Commissioner’s Note to the Uniform Act as follows:

The phrase “increase in value” used in (b)(5) is not intended to cover the income from property acquired prior to the marriage. Such income is marital property.

Income from property received prior to the marriage as in Speer or income from property acquired by gift during the marriage is no different than the wages earned by the parties during marriage. It is obviously marital property. However, the growth in the value of the property should remain the separate property of the party who acquired it as a gift. It obviously would if the gift were to depreciate in value.

We frequently affirm cases for reasons other than those cited by the trial court. Certainly it seems to me that the chancellor was right but he may have given the wrong reason. The Day opinion has been relied upon as a cure for all ills; it is not. Day specifically stated that we did not attempt to lay down inflexible rules for the future. We stated: “To the contrary, § 34-1214 allows leeway for the exercise of the chancellor’s best judgment, for it provides that all marital property shall be divided equally ‘unless the court finds such a division to be inequitable.’ ” It is apparent from the chancellor’s decree in the present case that he did weigh the equities when he considered the increase in value of the wife’s gift from her parents. Therefore, even if not specifically provided for by the statute, the statute specifically leaves such matters to the discretion of the trial court.

As previously stated, the marital property statute does not specifically cover the issue before the court. However, by implication, the increase in the value of the gift remains separate property. Moreover, I do not believe the chancellor’s decision was an abuse of discretion.

I would affirm the chancellor.

       We note that, throughout the proceeding below and on appeal, the parties treated the certificates of deposit as non-marital property and made no issue of the fact that the petitioner actually acquired the certificates during her marriage by use of the cash gifts from her mother. Thus, in this appeal, we accept without further comment the parties’ treatment of the certificates as non-marital gifts from her mother.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Simon M. KENNEDY, et al. v. Roger J. PAPP, et al.
    87-267
    741 S.W.2d 625
    Supreme Court of Arkansas
    Opinion delivered December 14, 1987

      Mitchell, Williams, Selig & Tucker, by: W. Christopher Barrier and Tracy Barger, for appellants.

      Ivester, Henry, Skinner & Camp, A Professional Association, by: H. Edward Skinner and Robert S. Irving, for appellees.
   Darrell Hickman, Justice.

This is a dispute between neighbors in a Little Rock subdivision over the scope of an easement, which generally runs behind each lot in their particular block. The appellants contend the easement can be used as a driveway for vehicles; the appellees contend it cannot but is restricted to use only for utilities, drainage and jogging.

The main adversaries are the Papps and Kennedys, both of whom own lots in the same block of the subdivision. Both claim they bought their lots with the assurance the easement could be used as they contend. The Bailey Corporation, the developer of the subdivision, and other lot owners are also parties to this suit. Attached is a plat of the block in question which shows the ownership of the lots and the easement, the shaded area, as it appears on the plat filed of record.

In January of 1986 the Kennedys began construction of a house on lot 119. The construction workers began using the easement in question for access to lot 119. This meant driving both beside and behind the Papp’s house. The Papps, who own lot 124, verbally informed the Kennedys that they did not have the right to use the easement as a driveway. The Papps had examined the bill of assurance to the subdivision before they bought this lot, and they were assured by a realtor and their predecessor in title that the easement was not a driveway for all lot owners. The Kennedys requested that the Bailey Corporation clarify the matter. On January 13,1986, the Bailey Corporation advised all lot owners that the easement was intended to be used as a driveway. The Kennedys built their house with a garage facing the rear, access to be gained over the easement. The Papps made formal written demand on the Kennedys to discontinue use of the easement on March 12, 1986.

The appellees eventually filed suit to enjoin the use of the easement as a driveway by the appellants. The chancellor found the appellees were correct in that the bill of assurance for the subdivision established an easement only for purposes of utilities, drainage and jogging path and not for use by vehicles to gain access to individual lots. The chancellor was right, and we affirm the decree.

The case was submitted to the judge on stipulations. The lots are located in the St. Charles subdivision of Little Rock and developed by the Bailey Corporation, one of the appellants.

The appellants make several arguments on appeal. First, they argue the chancellor erred in failing to find an express easement for vehicular use. The appellants rely on the plat filed by Bailey Corporation which has this notation:

GENERAL NOTES —
1. ALL EASEMENTS SHOWN = = = ARE TO BE USED FOR UTILITIES AND OR DRAINAGE AND/OR JOGGING PATHS AND/OR PRIVATE DRIVES.
2. IRON PINS ARE SET AT ALL LOT CORNERS.
3. LOTS WITH ROUNDED CORNERS ARE MEASURED TO A POINT OF INTERSECTION OF LOT LINES AND NOT POINTS ON CURVE.
4. ALL DISTANCES SHOWN ALONG CURVES ARE CHORDS.
5. RADII AT INTERSECTION OF STREET RIGHTS-OF-WAY ARE TO BE 25 FEET UNLESS OTHERWISE INDICATED.

However, the bill of assurance contains these provisions:

Allotter hereby donates and dedicates to the public an easement of way on, over and under the streets on said plat to be used as public streets. In addition to the said streets, there are shown on said plat certain easements for drainage and utilities which Allotter hereby donates and dedicates to and for the use by public utilities, the same being, without limiting generality of the foregoing, electric power, gas, telephone, water and sewer, with the right hereby granted to the persons, firms or corporations engaged in the supplying of such utilities to use and occupy such easements, and to have free ingress and egress therefrom for the installation, maintenance, repair and replacement of such utility services. In addition the above easements may be used by the property owners in St. Charles for the purpose of jogging trails when such use does not conflict with this use by the public utilities.
The filing of this Bill of Assurance and Plat for record in the office of the Circuit Clerk and Ex-officio Recorder of Pulaski County shall be a valid and complete delivery and dedication of the street and easements subject to the limitations herein set out.
Easements for Public Utilities, Drainage and Jogging Trails. Easements for the installation, maintenance, repair and replacement of utility services, sewer, drainage and jogging trails have heretofore been donated and dedicated, said easements being of various widths, reference being hereby made to the plat filed herewith for a more specific description of width and location thereof. No trees, shrubbery, incinerators, structure, buildings, fences or similar improvements shall be grown, built or maintained within the area of such utility, drainage and jogging easement except such area may be paved to provide a proper surface for jogging trails. In the event any trees, shrubbery, incinerators, structures, buildings, fences, or similar improvements shall be grown, built or maintained within the area of such easement, no person, firm or corporation engaged in supplying public utility services shall be liable for the destruction of same in the installation, maintenance, repair or replacement of any utility service located within the area of such easement.

The restrictions were declared to run with the land and bind all owners of the land.

The appellants argue that the language in a plat is controlling and that the chancellor erred in her findings. They rely on Epps v. Freeman, 200 S.W.2d 235 (S.C. 1973), Cook v. Mighell Construction Co., 40 Ill. App. 3d 1032, 353 N.E.2d 43 (1976), and Grimes v. Schmidt, 184 Pa. Super. 159, 132 A.2d 406 (1957). These decisions are not controlling because we have a bill of assurance as well as a plat. The language in the plat relied on by the appellants is unclear. It reads:

All easements shown = = = are to be used for utilities and or drainage and/or jogging paths and/or private drives.

The use of “and/or” as we have said before is “at best . . . ‘equivocal, obscure and meaningless,’ at worst ‘slovenly, improper and a linguistic abomination.’ ” Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984). On the other hand, the bill of assurance in clear language states the easement is to be used for utilities, drainage and jogging and does so in two different sections. The bill of assurance makes no mention of vehicular use.

In general, an express easement may be created by a written instrument. See 25 Am. Jur. 2d Easements § 20 (1966). We are unconvinced that the general note on the plat does, in fact, conflict with the language contained in the bill of assurance. The “and/or” language may only indicate that the developer thought the easements might also be used for vehicular access to some of the lots. Even if the language of the plat conflicts with that of the bill of assurance, the rule of construction to be applied would favor the specific provision, that is, the bill of assurance over the general provisions in the plat. Stanley v. Greenfield, 207 Ga. 390, 615 S.E.2d 818 (1950).

We also examine all of the documents of record in such cases to gather the intent of the parties. Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987). The chancellor made the right decision: the easement was not expressly established for the purpose of a vehicular access to the lots.

The appellants also contend that the judge erred because she should have found an implied easement or an easement by necessity which would have permitted use of the easement as a driveway. We cannot find in the abstract where this exact argument was submitted to the trial court. In any event, the appellants had the burden of proving the existence of such easements. The proof was simply insufficient to support either claim.

The definition of an implied easement is contained in Greasy Slough Outing Club, Inc. v. Amick, 224 Ark. 330, 274 S.W.2d 63 (1954), and United States v. Thompson, 272 F. Supp. 774 (E.D. Ark. 1967). In Thompson that court stated:

Where, during unity of title, a landowner imposes an apparently permanent and obvious servitude on part of his property in favor of another part, and where at the time of a later severance of ownership the servitude is in use and is reasonably necessary for the enjoyment of that part of the property favored by the servitude, then the servitude survives the severance and becomes an easement by implication. In order for such an easement to be established it must appear not only that the easement was obvious and apparently permanent but also that it is reasonably necessary for the enjoyment of the property, the term “necessary” meaning that there could be no other reasonable mode of enjoying the dominant tenement without the easement. An easement by implication does not arise merely because its use is convenient to the beneficial enjoyment of the dominant portion of the property.

See also Burdess v. United States, 553 F. Supp. 646 (E.D. Ark. 1982). The appellants have failed to prove that the easement is necessary for them to enjoy their property. They have access to their lots from the street in front of their homes. In fact the Kennedys have a front driveway as well as a garage behind their home. The degree of necessity for an implied easement must be more than one of mere inconvenience. Brandenburg v. Brooks, 264 Ark. 939, 476 S.W.2d 196 (1979).

For the same reason, the appellants have failed to prove that an easement of necessity existed. The standards are essentially the same for both. See Burdess v. United States, supra.

The argument is made that the trial court in effect ruled that the subdivision ordinance of the City of Little Rock replaced the common law of easements. No citation of authority is given for this argument. See Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). Cities, of course, can regulate subdivisions and provide for plats and bills of assurance to be filed. The municipal planning process is clearly authorized by Ark. Stat. Ann. § 19-2829(c) (Repl. 1980). The effect of the documents on rights and interests is determined by the courts. That is all the trial judge did. She based her decision on a reading of the plat and bill of assurance together. In general, parties can change the way property is used through their conduct, but the appellants have failed to establish the existence of any common law easement.

The last argument made by the appellants is that the appellees should be estopped from preventing the appellants from using the easement as a driveway since the appellees are using the easement as a driveway. The appellants again have cited no authority. See Dixon v. State, supra. One fact the appellants overlook is the easement the appellees are using for a driveway is located on their property. The paved portion of the easement is 18 feet wide according to the plat while the utility easement is approximately 25 feet wide; most, if not all, of the easement used for vehicles is located on the appellees’ property. It can be paved for use by joggers. The fact that the Papps are driving on their property as well as the Makis’ property would not estop the appellees from preventing others from driving over the appellees’ property.

We do not have before us the question of whether the utility companies or joggers who live in St. Charles could prevent the Papps and Makis from using the easement as a driveway in violation of the bill of assurance.

Affirmed.

Purtle, J., concurs.

Hays, J., not participating.

Glaze, J., dissents.

John I. Purtle, Justice,

concurring. The appellees have no more right to use this easement as a private drive than do the appellants. The appellees do not own the easement and the regular use of it by them as a private drive is inconsistent with the decision that the appellants may not use the easement as such.


author: Darrell Hickman, Justice.

text:
    Vernon ROBINSON v. STATE of Arkansas
    CR 87-89
    740 S.W.2d 918
    Supreme Court of Arkansas
    Opinion delivered December 14, 1987

      Wood Law Firm, by: Ed Phillips, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

This is an appeal from a denial of postconviction relief pursuant to A.R.Cr.P. Rule 37.

Vernon Robinson and his brother, Carl, were jointly charged with the capital felony murder of Alice Mosley, a 77 year old woman who lived across the street from the Robinsons in Wilmot, Arkansas. She was beaten to death and sexually molested when a hoe handle was inserted in her rectum. Her home was burglarized.

The brothers were appointed separate counsel: Jerry Mazzanti represented Vernon and Kenneth Johnson represented Carl. Their mother also hired Robert Morehead, an attorney, to investigate the case. Morehead advised the mother and the brothers that the brothers should plead guilty to avoid the death penalty. After consulting with their appointed attorneys, they decided to do that. The trial court conducted a comprehensive hearing before accepting the guilty pleas of the brothers. The appellant challenges the proceeding on two bases: the plea was involuntary because there was no factual basis to support it, and his counsel was ineffective, the usual claim in these cases.

The trial court held a hearing and found the claims meritless, which finding we confirm. Vernon’s main contention is that the trial judge did not establish a factual basis for the plea because Vernon denied any participation in the rape. But he and Carl were charged with capital murder involving the felonies of both rape and burglary. Vernon admitted that he “watched out,” and he said he was guilty as charged. His brother pled guilty in the same proceeding just before Vernon did and the details of the crime were recited at that time. In addition a summary of Vernon’s confession was before the court in which Vernon admitted cutting the telephone wires to the house, searching the bedroom, looking under a mattress and in a Bible, as well as searching the kitchen. His fingerprints were found on a Lysol can, which was likely used to beat the victim to death.

There is no requirement that a factual basis for a plea has to be supplied by the defendant himself. See Smith v. State, 291 Ark. 496, 725 S.W.2d 849 (1987). Unlike the defendant in McDaniels v. State, 288 Ark. 629, 708 S.W.2d 613 (1986), Robinson was asked directly if he was guilty. By every measure, Robinson’s plea was voluntary.

Robinson’s claim of ineffective assistance of counsel is also meritless. Counsel filed numerous pretrial pleadings and was evidently prepared to defend the case at a trial. At the Rule 37 hearing, the trial court heard testimony from Jerry Mazzanti, Robert Morehead, and Robinson himself. Robinson disputed some of this testimony, but the court resolved the disputes in favor of the attorneys. Credibility is a question for the trier of fact. Orsby v. McGee, 271 Ark. 268, 608 S.W.2d 22 (1980).

One of Robinson’s claims is that Mazzanti did not advise him of or present evidence of mitigating circumstances. Mr. Mazzanti testified that the only factor he considered a mitigating circumstance was Vernon’s age (17). Indeed, he pointed out that Robinson had a California rap sheet “four, five, or six” pages long, involving crimes of violence, including burglary, robbery, assault with a deadly weapon, and numerous other juvenile offenses. Robinson was asked about his prior record at the Rule 37 hearing, but he refused to answer based on the fifth amendment.

We have examined the record and using the standards of Strickland v. Washington, 466 U.S. 688 (1984), we find that Robinson has failed to establish an ineffective assistance of counsel claim.

For the first time it is argued that the trial judge violated Canon 3(c) of the Canons of Judicial Ethics. His argument is that the trial judge should have recused because Jerry Mazzanti is now a judge in the same judicial district, and the judge could not, therefore, be objective in reviewing Mazzanti’s performance. We do not consider arguments raised for the first time on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Affirmed.


author: John I. Purtle, Justice.

text:
    J. Richard WALLACE, W. Robert Wallace and Raymond L. Wallace v. MISSOURI IMPROVEMENT COMPANY
    87-142
    740 S.W.2d 920
    Supreme Court of Arkansas
    Opinion delivered December 14, 1987

      Daily, West, Core, Coffman & Canfield, by: Ben Core, for appellants.

      Friday, Eldredge & Clark, by: Meredith P. Catlett, for appellee.
   John I. Purtle, Justice.

This case concerns a dispute over the ownership of the mineral rights to a certain tract of land in Logan County, Arkansas. This particular tract of land, along with many others, was condemned by the United States in 1942 and subsequently used as a military base known as Fort Chaffee. The trial court held that the appellee, the Missouri Improvement Company, is the owner of the mineral interests because the appellee’s predecessor in title, which was the record owner of these interests at the time of the condemnation, never received any notice from the United States of the taking. The appellants, who are claiming the mineral rights through a quit claim deed from the United States in 1948, contend that the federal government acquired the full fee simple title in the condemnation proceeding and therefore title to the minerals is in the appellants. We hold that the trial court was correct in its decision that title to these mineral interests is in the appellee.

Prior to 1934 the Missouri Improvement Company’s predecessor in title, the Missouri Pacific Railroad, owned both the surface and mineral rights dating from a land grant from the United States. In 1934 the railroad deeded the property in question to Owens, who in turn deeded it to Glass. The railroad reserved the mineral interest in the property in the 1934 conveyance and since that time the separate mineral assessment has continued in the name of the railroad and its successor in interest, the appellee, and the taxes on this separate assessment have been paid in full. Mineral interests that have been severed from the surface interests are listed in a separate place in the same tax book in Logan County as are the lands. In January, 1942, the United States filed a civil action wherein it condemned the land in question under the authority of 40 U.S.C. § 258a. The Declaration of Taking stated that the estate taken was “the full fee simple title thereto.” Compensation was paid to the then current landowners. However, the parties to the present action stipulated in the trial court that the Missouri Pacific Railroad was not made a party to the condemnation proceeding, that the railroad never received any kind of notice of the taking, and that the railroad never received any compensation for the mineral rights to the land in question. After the war this part of Ft. Chaffee was no longer needed by the government, and the United States quit claimed the title to the property back to Glass, from whom it had taken the property. The appellants claim title to the mineral rights through this quit claim deed from the federal government to Glass.

The issue presented to this court is whether the taking by the government in 1942 included the taking of the mineral rights. As previously stated, the mineral rights had already been severed from the surface rights before the taking by the government. The parties to this appeal did not cite, and we have not found, a case directly in point. There is no question about the government’s authority to take the property as it did, but whether title to the mineral interest was also taken is the specific issue in this case. The government did not need or use the mineral rights during its possession of these lands.

From the time of the adoption of the United States Constitution it has been recognized that due process dictates that a person whose property is sought to be condemned is entitled to notice and a reasonable opportunity to be heard. Since appellee was not made a party to the condemnation proceeding and did not receive notice, actual or constructive, we must determine if title to the mineral rights was acquired by the government. Title to the mineral rights depends upon the resolution of this issue.

More than 100 years ago the United States Supreme Court in Windsor v. McVay, 93 U.S. 274 (1876), held:

That there must be notice to a party of some kind, actual or constructive, to a valid judgment affecting his rights, is admitted. Until notice is given, the Court has no jurisdiction in any case to proceed to judgment, whatever its authority may be, by the law of its organization, over the subject matter.

In Phillips v. United States, 151 F.2d 645 (7th Cir. 1945), the court quoted the general rule as follows:

Concededly, as a general rule, one who has an interest in property about to be condemned and who is not made a party defendant is not affected by the proceeding and loses no rights thereby ....

The United States attempted to quiet title to certain lands in the case of United States v. Chatham, 323 F.2d 95 (4th Cir. 1963). The court held that in the absence of actual notice to the record owners of land plus gross misdescription in the publication of notice of condemnation vitiated the entire proceedings to the extent that they purported to affect the title or the possessory rights of the record owners. Speaking for the court, Judge Haynsworth stated: “The United States acquired no interest in land which it sought to condemn when it gave no notice of the proceeding to the owners and did not physically seize the land.” The opinion went on to hold that when condemnation plaintiffs take the easy course, they should not be heard to say that the proceedings foreclosed the rights of interested parties who were readily identifiable, particularly when the government knew, or reasonably should have known, that such persons had a substantial interest in the litigation. Chatham recognized, as do we, that sometimes procedural defects in condemnation proceedings give rise only to an independent action for just compensation. See, e.g., Schroeder v. City of New York, 371 U.S. 208 (1962). In such instances, the actual taking is obvious to all and in clear contravention of the owners’ right to possession.

The question of the title to property taken by the government in condemnation proceedings was again considered by the Fourth Circuit in the case of Fulcher v. United States, 632 F.2d 278 (4th Cir. 1980). The court recognized that the property owner’s right is founded upon the due process and just compensation clauses of the Fifth Amendment to the United States Constitution. The Fulcher court stated that 40 U.S.C. § 258a and Federal Rules of Civil Procedure, Rule 71 (A)(c) (2), are the means for implementing these constitutional guarantees. Rule 71(A)(c)(2) requires the government to join as defendants only persons having or claiming an interest in the property whose names are known. The rule further provides that the government must add as defendants all persons “whose names can be ascertained by a reasonably diligent search of the records” and further directs that all others whose names cannot be ascertained may be designated as “Unknown Owners.”

The chief argument was whether Fulcher was entitled to make his claim against the government in view of the fact that the declaration of taking had stated the government was taking “title to the said lands in fee simple absolute.” There had been an attempt at notification by the publication in a local newspaper in North Carolina, which attempt the court found had failed to notify Fulcher who was a resident of California. The court held that Fulcher was entitled to proceed under 28 U.S.C. § 2409a against the government for compensation. There was no issue concerning severed mineral rights in Fulcher. The Fourth Circuit in Fulcher, supra, distinguished United States v. Chatham, supra, on the basis of the government’s complete failure (in Chatham) to comply with the essential provisions of the condemnation statute dealing with notice and the description of the land, and held that upon the filing of a declaration of taking and making a deposit of estimated compensation, the title to condemned land vests indefeasibly in the government, subject to an equitable interest in an unnotified condemnee to receive just compensation. The Eighth Circuit, relying upon Fulcher, reached the same result in United States v. Herring, 750 F.2d 669 (8th Cir. 1984).

An argument presenting some similarities to the present case is Higginson v. United States, 384 F. 2d 504 (6th Cir. 1967), where the former property owners attempted to obtain title to the mineral rights. The Higginson property was taken by the United States government for military purposes and became known as Camp Breckenridge, Kentucky. The camp was inactivated after it was no longer needed for military purposes. After oil and gas was discovered on the property, the United States government sold the mineral interest for a great deal more than the compensation given to the land owners when the property was taken. Higginson argued that although the property was taken in fee simple absolute, there was no compensation given for the mineral rights because no value had been established for these rights at the time of the taking. Thus, he argued that the taking as to the mineral rights was a violation of the Fifth and Fourteenth Amendments which require due process and just compensation. The holding was that the government took title to the mineral rights as well as the surface and the former land owners were not entitled to additional compensation for the mineral rights. The court further stated that even if Kentucky law applied, which it held did not, the United States government owned all of the interest in these lands, including the mineral rights.

We have discussed a number of cases dealing with the taking of private property for government purposes where there has been no previous severance of the mineral rights. We think the rationale used in these cases is valid when the mineral rights have not been separated from the land prior to the taking by the government. However, in the present case there was a definite, distinct and legal separation of the mineral rights prior to the government’s condemnation of these lands. The assessment of mineral rights was and is a matter of public record contained in the same tax book where the real estate taxes are listed. Certainly a reasonable search of the records would have revealed that the appellant was the owner of this separate property interest. Such a search was a necessary prerequisite to the condemnation and no attempt to cure this defect was made by the government.

No notice of any kind was given to the appellee that its property was being taken. The basic constitutional requirements of notice and a reasonable opportunity to be heard are mandatory prerequisites to divest a property owner of his interest. In the absence of any notice, actual or constructive, the government did not acquire the separate mineral rights of the appellee when the lands were condemned by the government in 1942. Therefore, the government never had title to the mineral rights and did not convey these rights when it subsequently executed the quit claim deed to appellants’ predecessors in title.

Affirmed.


author: Robert H. Dudley, Justice. Tom Glaze, Justice,

text:
    Wayne DUNCAN v. STATE of Arkansas
    CR 87-130
    740 S.W.2d 923
    Supreme Court of Arkansas
    Opinion delivered December 14, 1987

      Wayne Emmons, for appellant.

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

The appellant was found guilty of committing a horrible first degree murder in Ravenden Springs. In this appeal he argues that the conviction must be reversed and dismissed for want of a speedy trial. Unfortunately, the argument is meritorious.

A.R.Cr.P. Rules 28.1(c) and 28.2(a), in the part applicable to this case, provide that a defendant who is charged with a crime and is out on bail “shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months” from the date the charge was filed. In this case the charge was filed on October 18, 1982. During the next eighteen months there were no excludable periods, see A.R.Cr.P. Rule 28.3, such as a period when the defendant asked for a continuance, see A.R.Cr.P. Rule 28.3(c). Even so, the defendant was not tried during that eighteen month period and the State offers no explanation whatsoever for the failure to try the defendant in a timely manner. On July 19,1984, three months after the April 18 deadline had passed, the defendant moved for a continuance. Still later, on October 29, 1984, the defendant moved for another continuance. On November 19,1984, the defendant moved to have the charge dismissed for want of a speedy trial. On December 17,1985, the trial court denied the motion, and the trial began on April 8,1985. The trial court’s denial of the motion to dismiss is now on appeal.

The State admits that it did not try the appellant within the time provided, but, in spite of that fact, asks us to affirm the trial court for either of two reasons: first, the appellant acquiesced to the late trial by asking for the continuances after the deadline had passed, and second, the motion was not filed as soon as possible, and, therefore, was not preserved for appellate review.

The State’s first argument, that the appellant acquiesced to the late trial, was addressed in a similar case by the Court of Appeals. In a well reasoned opinion that court wrote:

The only request for a continuance by counsel for the accused occurred long after the time for a speedy trial, as specified in rule 28.1(b), had passed. This raises the question whether an accused may waive his right to a speedy trial by failing to move for dismissal on that basis rather than asking for a continuance, or moving for dismissal or continuance in the alternative. We know of no Arkansas case on that point, but we are persuaded by the decision of a California District Court of Appeal in Gregory v. Justice Court, S. Sacramento Judicial District, 168 Cal. App. 2d 719, 336 P.2d 584 (1959). There, the court was dealing with a requirement that a misdemeanor allegation be tried within 30 days after arrest. The California court agreed with the appellant’s contention that, while one may waive one’s constitutional right to a speedy trial, the waiver must take place prior to the expiration of the statutory period. The court said:
If such were not the rule, there would be no limitation of time in which one charged with a crime could be brought to trial, although the statutory time limit had long since expired. Such a rule would defeat a defendant’s constitutional right to a speedy trial. Such is not the intent or purpose of the law.
[336 P.2d at 586, Citation omitted.]

Garrison v. State, 270 Ark. 426, 433, 605 S.W.2d 467, 470 (Ark. App. 1980).

In the same case the Court of Appeals addressed the State’s second argument that the motion to dismiss was not timely filed. That court wrote:

With respect to the judge’s observation that the motion to dismiss was not timely filed, we need only observe that rule 30.2 provides that a defendant waives his right to a speedy trial if he fails to move for dismissal “prior to a plea of guilty or trial,” and in this case the appellant did not plead guilty, and his motion was made before he was tried.

Id. at 431, 605 S.W.2d at 469.

Although Garrison was decided under the criminal rules as they existed prior to the 1980 amendments, the amendments do not affect the reasoning used, and the case is still sound.

Once the speedy trial rules have been prima facie violated, as they were in this case, the burden is on the State to show some good cause for the untimely delay. Lowe v. State, 290 Ark. 403, 404-05, 720 S.W.2d 293, 294 (1986). The State offers no reason for its failure to try the appellant within the eighteen month period. The motions for continuance made after the deadline had passed do not constitute an acquiescense in the delay, and, since the motion for dismissal was filed and brought to the attention of the trial court prior to trial, it was timely raised.

Reversed and dismissed.

Hickman, Hays, and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. The majority court, in my opinion, has made a grave mistake by its failure to recognize the appellant waived or concurred in the delay of his trial. The pertinent dates and narrated events are as follows:

10/18/82 Appellant was charged with first degree murder.
4/18/84 On this date, the appellant’s eighteen-month speedy trial period expired. During this period, neither the state nor appellant had moved for any continuances; nor did appellant file a motion to dismiss for a delay.
7/19/84 Instead, appellant, on this date, moved for a continuance, stating he had a witness who would be unavailable at the trial which had been set for 8/13/84. The trial court granted appellant’s motion, resetting the trial on 11 / 12/84.
10/29/84 Appellant again asked for a continuance and received it on the grounds that he obtained a new attorney who needed time to prepare for trial. The trial court reset the trial once again on appellant’s motion, this time to be heard on 4/8/85.
11/19/84 On this date, appellant filed a motion for dismissal, alleging for the first time that the state denied him a speedy trial.

In Breedlove v. State, 225 Ark. 170, 280 S.W.2d 224 (1955), this court, in construing our prior speedy trial law, held that such law is not applicable where the delay was due to the application of the accused or where the accused concurred in the delay. See also Williams v. State, 210 Ark. 402, 196 S.W.2d 751 (1946) (wherein the court upheld the trial court’s overruling the defendant’s motion to discharge because she neither demanded a trial nor resisted its postponement). Here, for whatever reasons best known to appellant, he clearly acquiesced in the state’s delay in trying his case before the eighteen-month limitation expired on April 18,1984. Based upon his July 19,1984 motion to continue the first trial set on August 13,1984, he most likely was not ready to go to trial. In fact, appellant was not ready for trial at the second trial setting on November 12,1984. In my mind, appellant concurred throughout the delay until he moved for dismissal on November 19,1984. If he had been serious about a speedy trial, appellant should have raised his dismissal motion at the first opportunity after the eighteen-month limitation period ended on April 18, 1984, and before the trial date, August 13, 1984.

In conclusion, I believe the majority’s reliance upon the court of appeals’ case of Garrison v. State, 270 Ark. 426, 605 S.W.2d 467 (Ark. App. 1980), is wrong. That court, and now this court, adopts a 1959 California court of appeals’ decision that, in effect, states that if a defendant can waive his speedy trial right, he must do so prior to when the limitation period ends. The California court reasoned that if such were not the rule, there would be no limitation of time in which one charged with a crime could be brought to trial, although the statutory time limit had long since expired. How that court’s rationale applies here, I fail to understand. Here, appellant’s case would have come to trial — even ended perhaps — if he had presented a meritorious motion to dismiss after the eighteen-month period had expired. Instead of asserting his right to a speedy trial, he requested and received two continuances after the eighteen-month period ended. I am unwilling to reward his lack of diligence by giving him the benefit of our speedy trial laws. Therefore, I dissent.

Hickman and Hays, JJ., join in this dissent.


text:
    Raymond Henry RACHEL v. Christine S. RACHEL
    87-259
    741 S.W.2d 240
    Supreme Court of Arkansas
    Opinion delivered December 14, 1987
    [Rehearing denied January 19, 1988.]

      Johnson & Harrod, by: William E. Johnson, for appellant.

      John R. Byrd, for appellee.

      HoIt, C.J., and Hays, J., would grant rehearing.

   Robert H. Dudley, Justice.

The Chancellor granted an absolute divorce to appellee, Christine Rachel. The appellant, Raymond Rachel, appealed to the Court of Appeals. The Court of Appeals, Division I, reversed and dismissed. Rachel v. Rachel, 21 Ark. App. 77, 729 S.W.2d 16 (1987). Rehearing was denied in that court by a three-to-three, tie vote. Rachel v. Rachel, 21 Ark. App. 77 at 79-A, 733 S.W.2d 743 (1987). We granted certiorari. We reverse the Court of Appeals and affirm the trial court.

The appellant first argues that the Chancellor erred in granting the divorce because the appellee, Christine Rachel, failed to present corroborating evidence of her residency. Ark. Stat. Ann. § 34-1207.1 (Supp. 1985). The short answer to the argument is that the proof of residency was corroborated. Coralene Ashcraft, a witness for appellee, responded to appellee’s attorney’s questions as follows:

Q. All right. Do you know Christine Rachel?
A. Yes.
Q. Have you known her — Have you known she’s lived here in Arkansas or known she’s lived here in Crossett for a long time?
A. I’ve known Chris twenty-three years.
Q. Has she lived there as long as you’ve known her?
A. Uh-huh.

Appellant next argues that the Chancellor erred because he granted the divorce without corroboration of the grounds of divorce. The argument is without merit because the appellant expressly waived corroboration of appellee’s grounds. The applicable statute, Ark. Stat. Ann. § 34-1207.1 (Repl. 1975) provides, in part, that corroboration of the injured party’s grounds is necessary in contested cases, unless it is expressly waived in writing by the other spouse. Here, there was no corroboration of grounds. The issue is whether the corroboration of grounds was validly waived.

A statement outlining the proceedings is necessary to understand the point. After numerous pleadings were filed, the issues were joined with both parties asking for a divorce. The parties then entered a written property settlement which divided almost all of their property, dropped appellant’s counterclaim for divorce, and provided that only four issues, including alimony and attorney’s fees, would be submitted to the court. The written stipulation did not expressly waive the corroboration of appellee’s grounds. However, the trial of this case commenced as follows:

THE COURT: Court will be in session.
On the record, we are here today for the trial of Case Number 85-319-2, in which Christine Rachel is the Plaintiff [appellee] and Raymond Henry Rachel is the Defendant and Counter-Claimant [appellant].
Ms. Rachel is personally present with her attorney, Honorable Richard Byrd, and Mr. Rachel is personally present with his attorney, Honorable Gary Draper.
There has been an off-the-record conference, pre-trial among counsel and Court in which certain matters have been clarified, certain issues have been basically certified to the Court to be disposed of, and others have been indicated to the Court have been settled in the stipulation, which has been executed this morning by both parties and the counsel.
It’s the Court’s understanding that based on these agreements that the counter-claim of Mr. Rachel for an absolute divorce will be withdrawn and that Ms. Rachel will proceed in a moment with proof on her amended complaint for absolute divorce.
Also, the Court has been advised by Mr. Draper that Mr. Rachel will waive corroboration of the grounds for absolute divorce by Ms. Rachel in accordance with the statute. Since the Court feels that for safety’s sake that waiver should be in writing, we’ll do it on the record here then and whoever prepares the decree from this proceeding will specifically put a provision in the decree, so that we will have a written waiver, so to speak, to comply with the statute.

As previously set out, the applicable statute gives the defendant in a divorce action the right to waive the requirement of corroboration of the ground of divorce. The sole issue then is whether a right which may be waived by a party in writing can be waived by a party or the court dictating the waiver into the court record. We have no hesitancy in holding that an oral waiver made in open court and recorded by the reporter is just as valid as though transcribed and executed.

A similar situation occurs when pleadings are considered amended to conform to the evidence. The rules of civil procedure require that the pleadings in circuit, chancery, and probate courts be in writing. ARCP Rules 10 and 11. However, when issues are not pleaded in writing, but are tried by the implied consent of the parties in open court, the written pleadings may be considered to be amended as though the amendment were reduced to writing. ARCP Rule 15(b).

The appellant next argues that the Chancellor erred in granting the divorce because no grounds of divorce were proven. This argument is also without merit. The appellee testified that, in 1982, while she and appellant were married, he left her to live with another woman in Bastrop, Louisiana. They reconciled their differences almost two years later, and in September 1984, he moved back into the marital home. However, after only a few weeks he again started spending weekends with the other woman in Bastrop. The testimony established the ground of general indignities.

Appellant next argues that the Chancellor abused his discretion in ordering $800.00 per month alimony. We find no abuse of discretion. Many times we have said that in fixing the amount of alimony to be awarded, the trial court is given great discretion, and unless there appears to be a clear abuse of that discretion we will not disturb the award on appeal. Alexander v. Alexander, 241 Ark. 741, 410 S.W.2d 136 (1967).

The Chancellor in this case weighed many of the factors set out in Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980) before awarding alimony. He found that the appellee was 53 years of age; had only a high school education; had no career skills; had been married 29 years; had diabetes, hypertension, and arthritis; and would receive about $58,000 worth of property. She worked part time as a telephone operator and earned only $400 to $500 per month.

On the other hand the appellant, who was 56 years old, had worked in paper mills for 36 years, was an assistant mill superintendent, had a monthly gross salary of $4,109.00 and was in good health. He would receive about $20,000 worth of property from the marriage with liabilities of about $13,500.00.

After examining all of the above factors, we cannot say the Chancellor abused his discretion in attempting to rectify the economic imbalance of the parties which came about after 29 years of marriage.

The appellant’s last argument is that the Chancellor abused his discretion in awarding an attorney fee of $2,000.00 to appellee. Again, we are unwilling to say there was an abuse of discretion in the amount of the award of fees. The appellee testified that her total attorney’s fees and court costs were $5,730.00 and, to the date of trial, she had paid $2,800.00 of the amount from her savings. The Chancellor was in a better position than we are to observe the extent of preparation and the complexity of the case. The appellant has not demonstrated an abuse of discretion.

The Court of Appeals is reversed; the trial court is affirmed.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I agree with the majority that the trial court’s recitation into the record of appellant’s expressed waiver meets the requirement of Ark. Stat. Ann. § 34-1207.1 (Supp. 1985). I also believe appellant’s argument must be rejected because he invited error. It is well settled that, under the doctrine of invited error, appellant may not complain on appeal of an erroneous action of a trial court if he had induced or acquiesced in that action. See Missouri Pacific Railroad Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944); Kansas City Southern Railroad Co. v. Burton, 122 Ark. 297, 183 S.W.2d 189 (1916) and J. I. Case Co. v. Seabaugh, 10 Ark. App. 186, 662 S.W.2d 193 (1983). While the appellant and his attorney were before the court, they were aware the judge understood that appellant would waive corroboration of grounds and that the waiver would be reduced to writing to be contained in the parties’ decree. Knowing of the judge’s expressed understanding and treatment of appellant’s waiver, appellant now tries to take advantage of the court’s having granted the parties’ divorce by signing a decree which failed to include or reflect that waiver. Because I believe the appellant induced or, at the very least, acquiesced in the court’s error, I would reverse the court of appeals and affirm the trial court.


author: David Newbern, Justice.

text:
    Leon GILLIAM v. STATE of Arkansas
    CR 87-116
    741 S.W.2d 631
    Supreme Court of Arkansas
    Opinion delivered December 14, 1987

      Velda P. West, for appellant.

      Steve Clark, Att’y Gen., by: Frank J. Wills III, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant was convicted of first degree battery and being a felon in possession of a firearm. He was sentenced as an habitual offender to imprisonment for forty years on the first degree battery charge and fifteen years on the felon in possession of a firearm charge. His sole point for reversal questions the sufficiency of the evidence to sustain the conviction, and his argument is directed only to the battery conviction. We find that evidence was sufficient, and thus we affirm the conviction.

The appellant, Leon Gilliam, admitted to having shot his stepfather, Amos Harris. Harris, who was moving his clothing out of the home of Gilliam’s mother on the day in question, testified that he had gone into the home where he had lived with Mrs. Harris. He said Gilliam and Gilliam’s wife as well as other children of Mrs. Harris who also lived in the home were outside. He heard Gilliam come in and looked up to see Gilliam aiming a pistol at him whereupon he jumped under a bed as Gilliam fired two shots which missed. Gilliam then fired again and hit Harris in the buttock. Harris further testified that Gilliam then called his wife and the others to come into the house and said, “call the police, I killed him.”

Gilliam testified that he and Harris had had an altercation earlier at the prosecutor’s office. After he returned to the house and was working on his car with his wife, Gilliam saw his sister come out of the house and heard her say Harris was in the house and was threatening her and her mother. He said he went in the house and tried to talk with Harris who raised his voice and reached in his pocket as if for a weapon. Gilliam testified that he turned to his wife who was behind him, grabbed a pistol from her purse, and began firing.

The testimony of the police officers who were summoned to the scene of the shooting showed that the only weapon found was the pistol used to shoot Harris.

Other testimony presented by Gilliam showed that Harris had been abusive to Gilliam’s mother, Mrs. Harris, and perhaps other family members, that Harris had made veiled threats against them that day, and that Mrs. Harris was staying at the battered women’s shelter at the time the shooting occurred.

Sufficiency of the Evidence and Self-Defense

Although Gilliam’s only point for reversal is that the court erred in not granting his motion for judgment notwithstanding the verdict, his argument is that because he proved, beyond a reasonable doubt, that he fired at Harris in self-defense, or with justification as defined by Ark. Stat. Ann. § 46-506 (Repl. 1977), the state’s case against him was insufficient. While it is true that Gilliam presented evidence from which the jury might have concluded his motive was to protect himself and his family, he cites no case to support the conclusion that it was necessary for the jury to believe his evidence as opposed to that presented by Harris and the police. The jury may accept or reject any part of the testimony of a witness. Burris v. State, 291 Ark. 157, 722 S.W.2d 858 (1987), Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984). On appeal, we look only to the evidence in support of the verdict, and if we find it to be substantial, the conviction must be affirmed. Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986); David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985).

Affirmed.


text:
    Barbara Jo STILL v. STATE of Arkansas
    CR 87-128
    740 S.W.2d 926
    Supreme Court of Arkansas
    Opinion delivered December 14, 1987

      C.P. Christian, for appellant.

      Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Barbara Jo Still, was convicted of first degree murder and sentenced to life imprisonment. The only point she presents on this appeal is that the evidence was not sufficient to sustain the conviction. We find the evidence to have been sufficient, and thus the conviction is affirmed.

Floyd Gibson, Jr., was living with Ms. Still when he disappeared early in 1986. Ms. Still informed Gibson’s sister that he had just walked away one evening with suitcases and $14,000 in cash. Officer Gage of the Arkansas State Police investigated the disappearance and became suspicious of Ms. Still when he learned that she had withdrawn all but around $5,000 of the $64,000 which had been in Gibson’s bank account which he held jointly with Ms. Still. He also learned that she had been accepting monthly $1,000 interest payments on a certificate of deposit owned by Gibson, and she had traded Gibson’s pickup truck in on a new one. All of these things had occurred after the estimated date of death of Mr. Gibson which was late January, 1986.

When interviewed by officer Gage in April, 1986, Ms. Still told him the same story she had told Gibson’s sister with respect to Gibson’s disappearance. In May, she brought Gage a “farewell note” she said Gibson had written and left in her screen door. In September, pursuant to a search warrant, Gibson’s body was unearthed in Ms. Still’s front yard. It had been wrapped in a quilt and buried some 34 inches below ground. A prefabricated shed or garage type building had been placed over it. Ms. Still was charged with the murder.

In October, Ms. Still came to officer Gage and changed her story to state that Gibson had indeed left her on January 14, but he had returned on January 15. On that day, she said, he threatened her with a gun, saying that if she would not marry him he would kill her and then himself. She said she ran from the house into nearby woods and then heard a gunshot. When she returned to the house, Gibson lay dead in the floor with the gun nearby. She said she wrapped the body in a blanket and put it in her garbage. Later, she dragged the body out and buried it in the yard. She explained that she did not think she would be accused of any crime, and had buried Gibson in the yard because her first husband, who also had died from a gunshot, had been taken from her and buried in a place she could not visit.

Testimony of neighbors showed that Ms. Still had kept a fire going day and night from the end of January through February over the hole in her yard over which the building was eventually placed. The operator of the dump truck who had been summoned by her to fill the hole testified that he noted that there were old timbers in the hole which should be removed before filling, but that Ms. Still was adamant in refusing to allow it, saying that the hole was the location of an old septic tank. One neighbor testified that she had admired the quilt, which was identified at the trial as the one in which the body was wrapped, and when she one day asked Ms. Still where it was Ms. Still had appeared to be shocked and said it had been stolen.

Dr. Malak, the state medical examiner, testified that the wound which killed Mr. Gibson was not of the sort associated with suicide, as the bullet, which entered between the eye and the ear, went from front to rear rather than from one side of the head to the other. The gun which Ms. Still produced as the one she found next to Gibson was shown by ballistics tests not to have been the weapon which killed him. No other gun was found.

Sufficiency of the Evidence

Ms. Still’s contention here is that the evidence against her was not sufficient to sustain her conviction because no one saw the killing, no murder weapon was found, and there was no evidence of any motive on her part.

Circumstantial evidence may be sufficient to sustain a conviction, as it may constitute substantial evidence. Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975). Nor is there a requirement that the state prove the defendant had a motive to kill, Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986), although the jury in this case could have attributed the act to greed, given the evidence of Ms. Still’s financial dealings after Mr. Gibson’s death. The appellant cites no authority which requires the production of a murder weapon as a predicate for conviction.

The jury had before it Ms. Still’s admission of her bizarre behavior with respect to the burial of Gibson’s body and evidence that she had attempted to burn the body, which the jury could have concluded was a further attempt to hide her crime. A defendant’s false and improbable explanation of incriminating circumstances is admissible as proof of guilt. Mayer v. State, 285 Ark. 73, 685 S.W.2d 143 (1985); Howard v. State, 283 Ark. 221, 674 S.W.2d 936 (1984).

The jury had before it substantial evidence that Ms. Still killed Mr. Gibson. We have examined the record pursuant to Arkansas Supreme Court and Court of Appeals Rule 11(f), and we find no prejudicial error to which the appellant objected at the trial, thus the conviction is affirmed.