text:
    SUNBELT EXPLORATION CO., Harold Oliver, Mabel Oliver, Donald Newton, Arlaween Newton, Drucilla Jones, Shelvon Gregory, and Stanley Gregory v. STEPHENS PRODUCTION CO. and Chevron USA, Inc.
    94-1233
    896 S.W.2d 867
    Supreme Court of Arkansas
    Opinion delivered April 10, 1995

      Dorsey Ryan and Matthew Horan, for appellants.

      Daily, West Core, Coffman & Canfield, for appellees.
   Tom Glaze, Justice.

This case involves oil and gas leases and, as such, the facts leading to the present appeal are lengthy and complicated. Because the facts are important to our decision, they are set out below as simply as possible.

In the 1950s, the appellees Stephens Production Co. and Chevron USA, Inc. acquired oil and gas leases in the Arkoma Basin from the appellant lessors’ predecessors' in title. The leases provide for the payment of royalties on the basis of market value, with the royalties constituting the lessors’ chief consideration for conveying their rights in the leaseholds. All of the land covered by the leases at issue were pooled by the Arkansas Oil and Gas Commission into the Gregory Unit. The Gregory Unit is adjoined by three other units, the Blakely Unit, the Gooch No. 1 Unit, and the Gooch No. 2 Unit. Stephens also holds all the leases in the adjoining three units, and the Gregory Unit lessors also own mineral interest in one or more of the adjoining three units. All four units, the Gregory, Gooch Nos. 1 and 2, and the Blakely, share a number of reservoirs at various depths which contain natural gas. The subject of this suit is the Dunn C or Paul Barton reservoir, (hereinafter the Dunn reservoir), which lies underneath all four units.

In 1959, Stephens drilled the Gregory No. 1 well in the Gregory Unit, and in 1971, Stephens recompleted the Gregory No. 1 at two additional depths to reach the R. Barton and Dunn reservoirs. At the time, it was not known that the Dunn reservoir contained a fault located under the Gregory Unit which was caused by the breaking of the rock planes. The result of this fault was to divide the reservoir into two parts, trap the gas, and prevent the Gregory No. 1 well from producing or draining gas. from the southern portion of the Dunn reservoir. No other wells were drilled in the Gregory Unit for more than thirty years. In 1961, Stephens and Chevron drilled a well in the Blakely Unit that produced from the Dunn reservoir, and between November 2, 1961, and September 17, 1985, they drilled offset wells in the Gooch units which produced gas from the Dunn reservoir on the south side of the fault.

In the late 1980s, appellant Sunbelt Exploration Company began looking for prospects in the Arkoma Basin. Not realizing that the Paul Barton and Dunn C reservoirs were one and the same and, thereby, concluding that Stephens and Chevron had abandoned their leaseholds in the Gregory Unit, Sunbelt purchased top leases from all the appellant Gregory Unit lessors. See Crystal Oil Co. v. Warmack, 313 Ark. 381, 855 S.W.2d 299 (1993) (top lease defined). By letter dated July 6, 1990, Sunbelt informed Stephens that Stephens’ and Chevron’s leases in the Gregory Unit were subject to judicial termination, and requested that Stephens release the undeveloped balance of the unit for exploration and production by Sunbelt. On July 11, Stephens responded that it was planning to drill in the unit and would do so.

Subsequently, in October 1990, Stephens completed drilling the Gregory No. 2 well which reached the Orr reservoir and provided conclusive information that the Dunn reservoir did contain a fault. As a result, Stephens drilled the Gregory No. 3 and No. 4 wells for additional production of the Orr reservoir and the Dunn reservoir south of the fault. Chevron did not participate in the drilling of the three new wells, and instead entered into farm-out agreements with farmees who were unaware of Sunbelt’s actions.

In June 1991, Sunbelt filed suit in federal court against Stephens and Chevron. That suit was dismissed for failure to join the lessors as indispensable parties. Subsequently, Sunbelt entered into agreements with the lessors that allowed Sunbelt to sue Stephens and Chevron, share any award with the lessors, and hold the lessors harmless for any litigation costs.

On November 26, 1991, Sunbelt and the lessors filed their complaint in circuit court against Stephens and Chevron “to try title” of the Gregory Unit leases, ejectment of Stephens as a trespasser, damages, an accounting, and other relief. Sunbelt also claimed abandonment of the leases by Stephens, breach of the implied covenant to explore and further develop, and breach of express covenants to develop and protect from drainage. Finally, Sunbelt requested a declaratory judgment that the top leases it held were effective from the date of taking, and that the old leases with Stephens were abandoned effective that same date. In sum, Sunbelt requested judicial cancellation of Stephens’ and Chevron’s leases so that its top leases would then become effective. Exceptions were made for the Gregory No. 1 well and the rights of Chevron’s farmees in the Gregory Nos. 2, 3, and 4 wells. Stephens and Chevron filed separate answers both challenging circuit court’s subject matter jurisdiction, claiming Sunbelt’s action was not to try title, but instead was for cancellation of oil and gas leases, and requested transfer to chancery court. Further, Stephens denied any breach or trespass, and pled affirmative defenses.

On May 12, 1993, the circuit court granted Stephens’ motion to transfer to chancery court. Other motions were filed by the parties and other orders were entered which are not at issue on appeal.

The case was tried before the chancellor January 10 through 12, 1994. On May 11, following submission of post-trial briefs, the chancellor entered his judgment and opinion in favor of Stephens and Chevron, and dismissed Sunbelt’s complaint with prejudice. On that same date, the chancellor entered an order nunc pro tunc modifying a clerical error in his judgment and opinion. On June 3, Stephens filed a motion for award of attorneys’ fees. On July 5, the chancellor entered an order holding that he had jurisdiction of the matter and allowed Sunbelt to submit additional arguments. By opinion entered July 7, the chancellor awarded attorneys’ fees against Sunbelt only and in favor of Stephens in the amount of $67,440.38 and in favor of Chevron in the amount of $19,621.47. Sunbelt appeals from the circuit court order of transfer, the chancellor’s judgment and opinion, and the award of attorneys’ fees.

First, we consider Sunbelt’s challenge to circuit court’s order of transfer and chancery court’s jurisdiction over this matter. Sunbelt argues that because its complaint requested a writ of ejectment, the circuit court had jurisdiction and cites for support Henry v. Gulf Refining Co. of La., 176 Ark. 133, 2 S.W.2d 687 (1927). There, the lessee brought action in circuit court in ejectment against Gulf, where the lessee claimed the right to possession under mineral leases. However, Henry is distinguishable from the present case because in Henry: (1) there was no challenge to the court’s jurisdiction, (2) the case involved determination of whether the lessee had performed under the express terms of- the leases, (3) the parties claimed under a common source of title, (4) the lessee had been ousted from possession, and (5) the lessee was seeking adjudication of title and restoration of possession.

Here, Sunbelt does not contend Stephens’ interest in the Gregory Unit terminated automatically under the terms of the lessors’ leases with Stephens. Further, Sunbelt, by its own admission, held only top leases which by their definition are inferior to the original leases held by Stephens. See Crystal Oil Co. v. Warmack, 313 Ark. 381, 855 S.W.2d 299 (1993). Sunbelt’s interest under a top lease cannot become effective until either Stephens concedes abandonment and voluntarily relinquishes possession, or there is a judicial determination that Stephens’ leases are cancelled.

Cancellation of an oil and gas lease is an equitable remedy and is appropriate when a breach of the implied covenant of reasonable development is shown. Robertson Enterprises, Inc. v. Miller Land & Lumber Co., 287 Ark. 422, 700 S.W.2d 57 (1985); Blair v. Clear Creek Oil & Gas Co., 148 Ark. 301, 230 S.W. 286 (1921). Cancellation of instruments is one of the well-recognized grounds of equity jurisdiction. American Ins. Co. v. Mountain Home Sch. Dist. No. 9, 300 Ark. 547, 780 S.W.2d 557 (1989). Although Sunbelt mentions ejectment in its complaint, the complaint necessarily speaks in terms of cancellation of Stephens’ leases. Considering the required remedy in these matters, we believe Sunbelt’s request for a judicial determination of cancellation was both appropriate and controlling. And finally, we note that subject matter jurisdiction is determined from the pleadings. Union Pacific R.R. Co. v. State Ex. Rel. Faulkner County, 316 Ark. 609, 873 S.W.2d 805 (1994).

Having determined that jurisdiction was properly in chancery, we turn to Sunbelt’s appeal from the chancellor’s decision on the merits. At trial, Sunbelt alleged Stephens acted imprudently by failing to recomplete the Gregory No. 1 well earlier than 1971, by failing to discover the Dunn fault before 1990, and by failing to prevent drainage.

In his opinion and judgment on the merits, the chancellor held there was no evidence indicating that Stephens acted imprudently in not recompleting the Gregory No. 1 well to the Dunn reservoir prior to 1971. He found the evidence was essentially uncontroverted that in 1959, when the Gregory No. 1 was drilled, the technology was not available to show whether significant amounts of gas existed in the Dunn reservoir. Further in 1971, it was only Stephens’ implementation of extraordinary measures which allowed production of a significant amount of gas from the Dunn reservoir. Additionally, the chancellor found no evidence that Stephens’ failure to find the fault prior to 1990, or to drill additional wells south of the fault to prevent drainage was due to imprudent management. The chancellor held that the issue as to the amount of drainage by the Blakely and Gooch wells, if any, was moot because of his determination that Stephens had acted prudently in its management of the Gregory leases. While normally the question of whether a lessee acted as a prudent operator in its management goes to the entire acreage within the leasehold, the chancellor limited his ruling only to Stephens’ management of the Dunn reservoir.

On appeal, Sunbelt argues the chancellor erred by applying the prudent operator standard to both its claims for damages from drainage and to its claim for cancellation of Stephens’ leases in the Gregory Unit. Because Stephens is a common lessee with the adjoining units whose wells allegedly drained gas from the Gregory Unit, Sunbelt contends the chancellor should have placed the burden on Stephens to prove its diligence, rather than requiring Sunbelt to prove Stephens was a imprudent operator.

This court has noted there are five types of implied covenants in oil and gas leases, among which are the covenant to proceed with reasonable diligence in developing the leasehold, and the covenant to protect the leasehold from drainage from wells on adjoining lands through drilling offset wells. Amoco Production Co. v. Ware, 269 Ark. 313, 602 S.W.2d 620 (1980). The duty of the operator-lessee is to act reasonably and prudently regarding how development should proceed, and while the judgment of the operator can be considered when determining whether the operator acted reasonably, he must act with sound judgment and not arbitrarily. Id. One measure of whether an operator acts reasonably is whether he acts with due diligence for the benefit of both himself and the lessor. Id. See also Crystal Oil Co. v. Warmack, 313 Ark. 381, 855 S.W.2d 299 (1993); Enstar Corp. v. Crystal Oil Co., 294 Ark. 77, 740 S.W.2d 630 (1987); Byrd v. Bradham, 280 Ark. 11, 655 S.W.2d 366 (1983); Ezzell v. Oil Associates, Inc., 180 Ark. 802, 22 S.W.2d 1015 (1930); Mansfield Gas Co. v. Alexander, 97 Ark. 167, 133 S.W. 837 (1911).

While Sunbelt cites other jurisdictions where the burden is placed on the operator to prove excuse for significant delay in drilling where the operator also owns the draining well, such is not the law in Arkansas. Under Arkansas case law, the burden of proving breach of an implied covenant is on the one seeking cancellation of the lease. Blair, 148 Ark. 301, 311, 230 S.W. 286, 289-90 (1921).

The evidence revealed that the Arkansas Oil and Gas Commission does not allow production by more than one well per unit from a common source or reservoir, absent the existence of a fault. Because Stephens began producing from the Dunn reservoir with its recompletion in 1971, it was Sunbelt’s burden to show that Stephens’ failure to produce from the reservoir prior to 1971, and its failure to discover the Dunn fault was a breach of Stephens’ duty as a prudent operator. No evidence was presented to show that Stephens should have developed the Dunn reservoir or should have realized the Blakely well was producing from the same reservoir prior to the 1971 recompletion.

The uncontroverted evidence showed Stephens did not breach its duty in not discovering the Dunn fault prior to 1990. John Shields, an independent geologist who made maps for Stephens in the 1970s, testified he realized a section in the Gregory No. 1 well might be a fault, but because the section was only one hundred feet, he considered it insignificant and representing a thinning of the reservoir. Sunbelt’s own geologist, Dr. Charles Bartlett, testified he missed the fault in 1981. John Sharp, a geologist who did mapping for Stephens from 1986 to 1990, testified he noticed one hundred feet missing from the Gregory No. 1 well and realized it was probably a fault. Because he could not tell which direction the fault ran, Sharp recommended that Stephens drill into the Orr reservoir.

G.H. Porter, Jr., vice president in charge of drilling and production at Stephens, testified that through the years the shut-in pressures for the Blakely, Gregory No. 1, and the two Gooch wells were very close, indicating they were all in the same reservoir without any fault separation. Further, Porter stated on May 14, 1990, when John Sharp informed Stephens that a fault existed and recommended drilling, Stephens applied to the Arkansas Oil and Gas Commission for approval of an exceptional location, which was granted. The Gregory No. 2 well was drilled to the Orr reservoir and supplied conclusive evidence that a fault existed within the Dunn reservoir. Subsequently in 1991, Stephens began production in the Gregory Nos. 3 and 4 wells.

Next, we consider whether Stephens breached its duty as a prudent operator in failing to drill offset wells to the Dunn reservoir. While Sunbelt and the lessors alleged loss of gas and royalties from drainage, Sunbelt failed to prove the lessors actually sustained losses. Again, the uncontroverted evidence indicated Stephens produced or will produce all the gas originally in place under the Gregory Unit, plus more. Dave Kvach, a petroleum engineer and Sunbelt’s own witness, testified that 164% of the gas originally in place north of the fault was produced, and that the Gregory Nos. 2, 3, and 4 wells will produce 30% to 40% more than was originally in place south of the fault. Henry Coutret, a consulting petroleum engineer and witness for Stephens, testified that after the recompletion in 1971, migration of gas north of the fault went back onto the Gregory Unit. Coutret conceded that if Stephens had drilled the Gregory No. 2 well earlier it would have produced more gas. However, Coutret also stated that of about three billion cubic feet of gas in place initially south of the fault, the Gregory No. 2 well alone will produce approximately two billion.

Although the appellate court tries chancery cases de novo on appeal, it will not reverse the findings of a chancellor unless they are clearly erroneous. Perry v. Nicor Exploration, 293 Ark. 417, 738 S.W.2d 414 (1987). Based on the evidence as discussed, we cannot say the chancellor erred in finding that Stephens acted as a prudent operator in its management of the Dunn reservoir within the Gregory unit, and that Sunbelt failed to prove Stephens breached any implied covenants in the Gregory leases.

Finally, Sunbelt challenges the chancellor’s award of attorneys’ fees to Stephens and Chevron based on three arguments, only one in which we find any merit. The chancellor awarded fees pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1991), which reads as follows:

In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.

Here, Sunbelt brought action against Stephens and Chevron based upon its top leases and requesting that Stephens’ leases be cancelled because Stephens had abandoned its leases and breached its implied duties to explore and develop and to protect from drainage. Under the plain terms of § 16-22-308, Stephens and Chevron prevailed against Sunbelt’s allegations that they breached their lease terms, and the trial court was therefore authorized to award reasonable attorney’s fees in these circumstances.

Sunbelt also argues that, under ARCP Rules 52(b) and 59(b), Stephens’ and Chevron’s motions for attorneys’ fees were untimely because their motions were filed more than ten days beyond the filing of the final judgment dismissing Sunbelt’s and the lessors’ case. Those rules do not mention when motions for attorneys’ fee must be submitted. Instead, this court’s holding in Alexander v. First Nat’l Bank of Ft. Smith, 278 Ark. 406, 646 S.W.2d 684 (1983), controls that issue here. In Alexander, the court rejected Alexander’s argument that the trial court was without jurisdiction to award attorneys’ fees, since at the time of the award, the notice of appeal had been filed. The court held matters that are collateral or supplemental to the trial court’s judgment are left within the trial court’s jurisdiction even though an appeal has been docketed. In so holding, the court upheld the trial court’s award of attorneys’ fees and executor’s fees since the awards were collateral to Alexander’s appeal from the lower court’s decision to uphold First National Bank’s accounting. In accordance with Alexander, we conclude that Stephens’ and Chevron’s motions were not required to be filed within the ten-day period set out in Rules 52(b) and 59(b), and the trial court had the authority to award the attorneys’ fees it did. Cf. Spring Creek Living Center v. Sarrett, 318 Ark. 173, 883 S.W.2d 820 (1994), (court held that the trial court could retain jurisdiction of an ARCP Rule 11 motion for sanctions as a collateral matter to the underlying cause of action which had been appealed).

In conclusion, Sunbelt challenges the award of attorneys’ fees as excessive, but we find that argument without merit. The trial court’s award will not be set aside except for abuse of discretion, Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990), and in reviewing the record, Sunbelt simply fails to show such an abuse. Sunbelt is correct, however, that only costs authorized by statute may be awarded. Stephens and Chevron submitted an itemization of legal fees and costs, which included depositions, expert fees and travel expenses. Because such costs are not allowable, see Wood v. Tyler, 317 Ark. 319, 877 S.W.2d 582 (1994), we remand so the trial court can deduct those unallowable expenses if such expenses were included in the amount awarded Stephens and Chevron.

Affirmed and remanded in part.

      The Dunn reservoir was denominated the Paul Barton at the Gregory No. 1 well and denominated the Dunn C on the other units. This fact added to the confusion because the Paul Barton and the Dunn C were considered to be two separate reservoirs at one time.

      The term, jrecompleted, refers to the “technique of drilling a separate well-bore from an existing casing in order to reach the same reservoir, or redrilling the same well bore to reach a new reservoir after production from the original reservoir has been abandoned.” Howard R. Williams & Charles J. Meyers, Manual of Oil and Gas Terms 811 (7th ed. 1988).

      An offset well is “a well drilled on one tract of land to prevent the drainage of oil or gas to an adjoining tract of land, on which a well is being drilled or is already in production.” Oil and Gas Terms at 634.

      A farm-out agreement is an assignment by a leaseholder to another operator wherein the assignee is obligated to drill on the acreage as prerequisite to transfer of the leaseholder’s interest. Williams & Meyers, Oil and Gas Terms at 342.

      To provide for easier reading, Sunbelt is used to represent both Sunbelt and the lessors, and Stephens is used to represent both Stephens and Chevron. Exception occurs where it is necessary to identify a distinct interest of the lessors or Chevron.

       The measures .used included sandfracing and commingling of gas from the Dunn A and Dunn C reservoirs. Sandfracing is an “operation designed to loosen or break up tight formations which contain oil or gas, thus causing such formations to have more permeability and greater production.” Oil and Gas Terms at 880.

       Because gas is migratory in nature and will move from a higher to lower pressure, gas which was originally under one unit can be drained by a well placed on another unit.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Shirley BRUMLEY v. James NAPLES
    94-1194
    896 S.W.2d 860
    Supreme Court of Arkansas
    Opinion delivered April 10, 1995

      Compton, Prewett, Thomas & Hickey, P.A., by: William L. Prewett, for appellant.

      Schackleford, Schackleford & Phillips, P.A., for appellee.
   Donald L. Corbin, Justice.

Appellant, Shirley Brumley, appeals an order of the Union County Circuit Court granting the motion of appellee, James J. Naples, for summary judgment and dismissing with prejudice appellant’s complaint for malpractice and breach of contract. Our jurisdiction of the appeal is proper pursuant to Ark. Sup. Ct. R. l-2(a)(16) because it raises a question about the law of torts. Appellant raises five points for reversal. We find no error and affirm the trial court’s judgment.

On July 7, 1988, appellee, a podiatrist, performed a surgical procedure to remove bunions located on the sides of appellant’s feet. The procedure was performed at the New Boston General Hospital, in New Boston, Texas. After the procedure, appellant’s left foot was improved, but she complained of persistent coldness and numbness in the great toe and second digit of her right foot.

On April 18, 1990, appellant filed an action for damages against appellee, alleging her injuries were caused by appellee’s negligence in damaging the nerves of her right foot during the surgery. Appellant’s complaint set forth claims based on negligence in the surgery, lack of informed consent, and breach of contract. Appellee answered with a general denial of the complaint’s allegations.

On April 20, 1992, appellee filed a motion for summary judgment based on appellant’s failure to prove that appellee had acted outside the applicable standard of care. The motion was supported by appellee’s affidavit which incorporated several exhibits including appellant’s answers to interrogatories, appellant’s response to request for production of documents, appellant’s deposition, and copies of the hospital’s admission forms. Appellant responded that the motion was untimely inasmuch as discovery had not been completed and issues of fact remained; she attached her affidavit. Appellee’s motion was denied.

On December 3, 1992, appellee renewed his motion for summary judgment and argued that appellant had failed to disclose an expert witness to establish that appellee had acted outside the applicable standard of care; the renewed motion adopted appellee’s first motion. Appellant responded that appellee’s deposition established a standard to advise a patient of risk and danger, and that issues of fact remained regarding the contract and lack of informed consent. Appellant’s response was supported by appellee’s deposition and correspondence regarding the injury to appellant’s right foot. Appellee’s reply denied the existence of any contract, and asserted that expert testimony, other than his own deposition, was required to establish a standard of care on thejssues of negligence and informed consent.

By order filed April 28, 1993, the trial court found appellant had failed to disclose a “liability expert” except on the issue of informed consent, and granted partial summary judgment “as to all issues of liability except the issue of informed consent and breach of warranty and contract.”

On March 29, 1994, appellee filed a second renewed motion for summary judgment, attached as an exhibit thereto the deposition of appellant’s liability expert on the issue of informed consent, Mr. Luther Lewis, and argued the deposition failed to establish a fact question on that issue. The motion incorporated appellee’s earlier motions. Appellant argued, in response, that Lewis was indeed an expert on the issue of the standard of care for informed consent.

By order filed September 6, 1994, incorporating a letter opinion dated August 16, 1994, the trial court found that it had instructed appellant by order filed February 16, 1993 to disclose liability experts by March 29, 1993; that appellant had identified Lewis as an expert as to the issue of informed consent; that Lewis could not offer an opinion as to the proper standard of care for a podiatrist pursuant to Ark. Code Ann. § 16-114-206(b)(1) (1987); that appellant had failed to disclose any other liability expert; and, that appellee’s motion for summary judgment as to “all issues of liability” was thereby granted and the complaint dismissed with prejudice. This appeal arises therefrom.

For reversal, appellant first argues that section 16-114-206, setting forth the burden of proof in medical malpractice actions, is unconstitutional. Our review of the abstract reveals that this issue was mentioned once before the trial court, to-wit, in her response to appellee’s first motion for summary judgment, appellant stated: “Defendant argues that expert medical testimony is required in this case. If it were, the statute concerning actions for medical malpractice would be unconstitutional as legislation that is special, or class legislation.” The abstract is otherwise devoid of any mention of this issue by either party or by the trial court.

On this record, we conclude that appellant’s constitutional challenge was neither properly briefed nor argued to the trial court, and that the trial court made no ruling on appellant’s objection. The burden of obtaining a ruling on this issue was on appellant; her failure to do so, leaving the issue unresolved, operated as a waiver of the argument on appeal. Parmley v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994). Further, the record reveals that no notice of appellant’s constitutional challenge was given to the Attorney General pursuant to Ark. Code Ann. § 16-111-106 (1987), and, on that ground, we may choose not to consider the argument on appeal. Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991).

Appellant’s second argument is that the trial court erred in granting summary judgment because, on the proof presented, there was a genuine issue of material fact on the issue of informed consent. Appellee responds that he was entitled to summary judgment on this issue because section 16-114-206(b) required expert medical testimony to establish the applicable standard of care for disclosure and appellant failed to produce such testimony. Appellant argues that, viewing the proof in the light most favorable to her as the party resisting the summary judgment motion, this court must find that appellee made no disclosure of the risks of surgery, and, on such proof, evidence of a standard for disclosure is not required because absolute nondisclosure violates any disclosure standard.

The standard for our review of motions for summary judgment, as we have stated many times, is as follows:

Summary judgment is a remedy that should be granted only when it is clear that there is no genuine issue of material fact to be litigated. [Citation omitted.] The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Any doubts, and inferences must be resolved against the moving party. [Citations omitted.] The burden in a summary judgment proceeding is on the moving party and cannot be shifted when there is no offer of proof on a controverted issue. [Citation omitted.] When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing genuine issue as to a material fact. [Citation omitted.]

Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 551, 868 S.W.2d 505, 508 (1994).

Viewing the pleadings and evidence with respect to the informed consent issue in the light most favorable to appellant, we observe that in her complaint she alleged:

The information furnished to [appellant] by [appellee] relative to the proposed surgery to be performed by him was not adequate whereby she could give an informed consent to the surgery. Had she been informed there was a danger of permanent crippling of her foot, she would not have consented to the operation. The defendant failed to advise her there would be any danger whatever in a loss of sensation or numbness in her foot as a result of the operation and, to the contrary, assured her it was a simple operation and there would be no danger.

In her deposition, appellant described two meetings she had with appellee prior to her surgery. Their first meeting took place in appellee’s office in June of 1988 when appellee initially examined appellant and recommended the surgery. In the deposition, when asked whether appellee explained any surgical procedure to her, appellant replied: “He just told me that he would remove those knots off of the sides of my feet, and he did not say anything about any pins or cutting any nerves in my toes or anything.” Their second meeting took place in the hospital just prior to the time appellant was taken-to surgery. In her deposition, appellant stated that appellee told her and her husband “the very same thing that he told me in his office that day, the first day I went to him.” When asked whether appellee gave appellant any instructions about her care post-surgery, she answered in the negative, and added:

A. [H]e did not tell me that he was going to go in there and put pins in my feet or cut any nerves in my toes. All he was supposed to do was take those knots off of the sides of my feet.
Q. How did you think he was going to get the knots off the side of your feet?
A. He was going to cut them out.

At a later point in the deposition, appellant was asked if she had spoken to another doctor at the hospital on the day of her surgery, she replied:

A. I just can’t remember. When I went over there that morning, I was scared to death because I didn’t know what was going to happen to me. I’ve always been that way about hospitals.
Q. I understand. And you were scared to death and didn’t know what was going to happen and still didn’t ask Doctor Naples what was going to happen to you?
A. Well, Doctor Naples had told us that, you know, he’d explained the procedure to me twice, and he told me the same thing twice, and I just figured he knew what he was doing, and I didn’t question him.

Finally, in her deposition, appellant stated that, on the day of the surgery, she signed without reading the hospital’s disclosure and consent form. This two-page document, subtitled “Medical and Surgical Procedures,” was a preprinted form which included blank lines to permit the insertion of additional language. The document’s stated purpose was “to make you better informed so you may give or withhold your consent to the procedure.” It addressed risks and hazards of surgical, medical and diagnostic procedures generally. Additional handwritten language had been inserted identifying appellant’s particular surgery and its particular related risks and hazards, including nerve injury. In the deposition, appellant stated that she did not believe the handwritten language was on the form at the time she signed it. The document stated that appellant had been given an opportunity to ask questions about the risks and hazards of the procedures to be used, and believed that she had sufficient information to give an informed consent.

We conclude that, although appellant asserts that absolutely no information regarding the risks of her surgery was disclosed to her, the pleadings and evidence, viewed in the light most favorable to her, do not substantiate her argument, but reveal that some information was disclosed. The informed consent issue then becomes whether the disclosed information was. adequate to'obtain appellant’s informed consent. Adequate information, in the language of section 16-114-206(b), is:

(1) [T]hat type of information regarding the treatment, procedure, or surgery as would customarily have been given to a patient in the position of the injured person ... by other medical care providers with similar training and experience at the time of the treatment, procedure, or surgery in the locality in which the medical care provider practices or in a similar locality.
(2) In determining whether the plaintiff has satisfied the requirements of subdivision (b)(1) of this section, the following matters shall also be considered as material issues:
(A) Whether a person of ordinary intelligence and awareness in a position similar to that of the injured person . . . could reasonably be expected to know of the risks or hazards inherent in such treatment, procedure, or surgery;
(B) Whether the injured party . . . knew of the risks or hazards inherent in such treatment, procedure, or surgery[.]

Adequate disclosure of the risks of a procedure is measured by the customary practice of physicians in the community in which the medical care provider practices or in a similar community. Fuller, Adm’x v. Starnes, 268 Ark. 476, 597 S.W.2d 88 (1980). This standard of care applied even in a case arising from the physician’s failure to disclose to the patient certain known risks associated with the use of Demerol prior to injecting her with the drug. Id.

The plaintiff’s burden of proving the applicable standard of care and the defendant’s failure to comply with that standard requires expert testimony when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge. Reagan, 305 Ark. 77, 805 S.W.2d 636; Courteau v. Dodd, 299 Ark. 380, 773 S.W.2d 436 (1989). In the present case, the trial court indeed required appellant to disclose an expert on the issue of informed consent. Upon its review of the deposition of appellant’s disclosed expert, Lewis, the trial court determined that he could not offer expert testimony, as required by section 16-114-206(b), on the issue of informed consent. Absent expert testimony on this issue, the trial court concluded that appellant had not met her burden of proof and that no material issue of fact existed with respect to informed consent which required presentation of the case to a jury. We cannot say the trial court erred. Reagan, 305 Ark. 77, 805 S.W.2d 636; Courteau, 299 Ark. 380, 773 S.W.2d 436; Fuller, 268 Ark. 476, 597 S.W.2d 88; see also Grice v. Atkinson, 308 Ark. 637, 826 S.W.2d 810 (1992) (affirming judgment for defendant on directed verdict in dental malpractice case arising from failure to disclose risk of surgery).

Appellant’s third argument is that the trial judge erred in granting summary judgment on her breach of contract claim because genuine issues of material fact exist concerning the existence and terms of the alleged contract between the parties.

Viewing the pleadings and evidence with respect to the contract issue in the light most favorable to appellant, we observe that in her complaint, appellant alleged: “The defendant contractually agreed not to cause damage to her and assured plaintiff that his operation would correct the problems in her foot.” No written agreement was alleged or appended to the complaint. In her affidavit, appellant stated: “I entered into a contractual agreement with Dr. Naples based upon his oral representations with me prior to the surgery. He breached that contract by failing to produce surgical results that were satisfactory, but that were, rather, incapacitating.”

We observe, however, that in her deposition the following colloquy occurred between appellant and appellee’s counsel:

Q. Did Doctor Naples make any guarantees or promises about his surgery?
A. What do you mean?
Q. Did he say, “I guarantee I can fix those feet,” or “I promise that this will be the result”?
A. Well, no, he didn’t guarantee anything. He just told me that my feet would be better. And my left foot is better, but my right foot is not.

In addition, we observe that the hospital’s disclosure and consent form, which appellant signed without reading, contained the statement: “I understand that no warranty or guarantee has been made to me as to result or cure.”

We conclude that, although appellant asserts that a contract or guaranty existed between the parties, the pleadings and evidence, viewed in the light most favorable to her, do not substantiate the existence of such an agreement. Hence, we find appellant failed to rebut appellee’s prima facie establishment of entitlement to summary judgment by introducing proof that she and appellee made an enforceable agreement that would give rise to a cause of action for breach of contract or warranty. See generally, Jack W. Shaw, Jr., Annotation, Recovery Against Physician on Basis of Breach of Contract to Achieve Particular Result or Cure, 43 A.L.R.3d 1221 (1972 & Supp. 1994). On these facts, we cannot say the trial court erred in granting appellee judgment as a matter of law on the breach of contract or warranty claim. South County, Inc. v. First Western Loan Co., 315 Ark. 722, 871 S.W.2d 325 (1994). Any unresolved factual issues are therefore irrelevant, and the trial judge did not err in granting the motion for summary judgment on this claim. Rainey v. Travis, 312 Ark. 460, 850 S.W.2d 839 (1993).

Appellant’s fourth argument is that the trial court erred in ruling that her witness on the issue of informed consent, Lewis, did not qualify as an expert. The determination of whether a person is qualified as an expert in a particular field rests within the discretion of the trial court. Williams v. Southwestern Bell Tel. Co., 319 Ark. 626, 893 S.W.2d 770 (1995). The trial court’s discretion in this matter is broad, and will not be reversed absent a showing of abuse. Phillips v. Clark, 297 Ark. 16, 759 S.W.2d 207 (1988).

The test of qualification as an expert is whether, on the basis of the witness’s qualifications, he has knowledge of the subject at hand which is beyond that of ordinary persons. Williams, 319 Ark. 626, 893 S.W.2d 770. In the present case, the trial court rejected Lewis as an expert on the issue of informed consent for the following reasons as stated in its August 16, 1993 letter opinion:

After fully reviewing his deposition, it is the opinion of the Court that Mr. Lewis candidly admitted that he did not have an opinion on the proper standards of care for a podiatrist as relates to disclosures and consent forms. Basically Mr. Lewis knows about the basics of informed consent, that is how to keep the records, and how and when to have them executed. But with respect to the type of information a podiatrist should tell a patient, or the content of the information, he was unprepared to offer an opinion on that. He was not prepared to answer any medical questions dealing with informed consent. On page 31 of his deposition, he stated “The medical complications and risks, I cannot tell you what the podiatrist should say.” In the opinion of the Court this at [sic] the heart of the issue of informed consent. Therefore, the plaintiff must obtain an expert to testify as to these facts.

Our review of Lewis’s deposition is consistent with the quoted summary by the trial court. On these facts, we cannot say the court abused its discretion in this matter.

Appellant’s fifth and last argument is that appellee’s deposition contained admissions that should have been accepted by the trial court as expert testimony on the issue of the disclosure standard for informed consent.

Appellant argued appellee’s deposition was expert testimony on the issue of informed consent in her response to appellant’s first renewed motion for summary judgment. In his reply, appellee argued that Ark. Code Ann. § 16-114-207(3) (1987), as interpreted by this court in Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987), controlled this matter and disallowed use of appellee’s deposition for the purpose of establishing his failure to comply with the applicable standard of care. By order filed April 28, 1993, the trial court, without expressly ruling on appellant’s argument, stated that appellant had disclosed an expert on the issue of informed consent, and reserved that issue from its grant of partial summary judgment. No appeal was taken from the April 28, 1993 order.

In his second amended motion for summary judgment, appellee identified Lewis as appellant’s disclosed expert on the issue of informed consent. In her response to the second amended motion, appellant confirmed that Lewis was offered as a medical expert qualified to testify on the issue of the standard of care for informed consent. Appellant did not renew her argument that appellee’s deposition was expert testimony on this issue, nor was the issue mentioned by the trial court in its order filed September 6, 1994 granting the second renewed motion for summary judgment and dismissing the complaint.

On these facts, we find appellant has failed to preserve this argument by obtaining and designating for appeal any ruling by the trial court on the issue of the use of appellee’s deposition to establish the standard for informed consent. Hence, we do not address the merits of appellant’s final argument.

Affirmed.

Dudley, J., not participating.

      Appellant’s then-spouse, Henry Brumley, originally joined in the complaint and prayed for damages for loss of consortium. However, by order filed March 24, 1992, Mr. Brumley’s motion for nonsuit was granted.

      Although appellant designated the order filed February 16, 1993 in her notice of appeal, she failed to abstract it for our review.

       Although the facts in Fuller developed just prior to the General Assembly’s adoption of section 16-114-206, we specifically stated in that opinion that our holding was consistent with the new legislation.


text:
    Daniel HARMON v. CARCO CARRIAGE CORPORATION and Martha Arends
    94-1217
    895 S.W.2d 938
    Supreme Court of Arkansas
    Opinion delivered April 10, 1995

      Blackman Law Firm, by: Phillip Crego and Christopher Jester, for appellant.

      Penix, Penix, Lusby & Nix, by: Robin Nix, for appellees.
   Donald L. Corbin, Justice.

Appellant, Daniel Harmon, appeals an order of the Craighead County Circuit Court granting summary judgment to separate appellees, Carco Carriage Corporation (Carco) and its employee, Martha Arends, on appellant’s claims for malicious prosecution and abuse of process. As this case presents a question about the law of torts, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(16). The trial court erred in granting summary judgment on both claims. Therefore, we reverse and remand for trial.

Appellant filed suit against appellees asserting claims of malicious prosecution, abuse of process, and outrage. Appellant later withdrew his claim of outrage. The complaint stated that on June 18, 1991, appellees initiated criminal prosecution against appellant for theft of leased property, alleging appellant had rented from appellees and failed to return a 1991 Pontiac Grand Am automobile. Appellant was arrested, tried, and found not guilty of theft of leased property.

This suit followed. We consider separately the claims for malicious prosection and abuse of process. First, however, as this court did in Culpepper v. Smith, 302 Ark. 558, 560-61, 792 S.W.2d 293, 294 (1990), we recite

[t]he procedures to be followed and the assumptions to be made in reviewing rulings granting summary judgments [which] have now become axiomatic. . . . The burden is on movant to demonstrate the absence of a genuine issue of fact. All emphasis is drawn against the moving party, and when reasonable minds might differ as to conclusions to be drawn from the facts disclosed, a summary judgment is not appropriate. [Citation omitted.] The purpose of a summary judgment is not to try issues, but to determine if there are issues to be tried. If doubt exists, summary judgment should not be granted. [Citations omitted.] When considering the facts, the court should view the testimony relating thereto in the light most favorable to the party against whom the judgment is sought. [Citation omitted.]

PROOF PRESENTED TO TRIAL COURT

Viewing the pleadings and evidence respecting the summary judgment motion in the light most favorable to appellant, we observe that in his complaint, appellant contended the prosecution for theft of leased property arose out of a dispute between him and Hertz Claim Management Corporation (HCM), after appellant was involved in an automobile collision. Pending settlement of appellant’s claim from the collision, HCM provided him with the 1991 Pontiac Grand Am via appellee, Carco, the Hertz licensee in Jonesboro, Arkansas. According to appellant’s complaint, HCM refused to extend the lease agreement on the 1991 Pontiac Grand Am past June 17, 1991, and instructed appellees Arends and Carco to collect the rental from appellant or obtain the return of the Grand Am. Appellee Arends then completed an affidavit for a warrant for appellant’s arrest, stating that appellant had leased the Grand Am and refused to return it. Thus, appellant alleged, appellees maliciously initiated criminal prosecution against him for the sole purpose of collecting a civil debt.

Appellees answered the complaint, admitting the affidavit for arrest and that appellant had been found not guilty of theft of leased property. However, appellees denied any knowledge of the automobile collision, and any relationship between appellant and HCM or between themselves and HCM. Appellee Arends denied acting pursuant to any instruction from HCM. The parties engaged in discovery, and appellees moved for summary judgment. In the motion, appellees referred to a deposition of appellant and an affidavit of appellee Arends; however, no such documents were attached to the motion or brief in support thereof.

Appellant filed a response to the motion for summary judgment and brief in support thereof asserting that appellees had failed to disclose material facts, and that these facts were in dispute. Appellant attached portions of appellee Arends’s deposition to his response and alleged that appellee Arends failed to disclose to the police all the facts known to her when she swore out the arrest warrant. Also attached to appellant’s response was an affidavit of Judge Bill Webster, the Jonesboro Municipal Judge, stating that he had read appellee Arends’s deposition and that if he had known the facts not disclosed by appellee' Arends, he would not have found probable cause for the arrest warrant.

MALICIOUS PROSECUTION

This court has previously set out the elements of malicious prosecution as follows: (1) a proceeding instituted or continued by the defendant against the plaintiff; (2) termination of the proceeding in favor of the plaintiff; (3) absence of probable cause for the proceeding; (4) malice on the part of the defendant; and (5) damages. Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993).

Here, the trial court granted summary judgment on the basis that probable cause existed to charge appellant with theft of leased property and that appellees acted without malice. This court has stated that the issue of probable cause may be decided as a matter of law on summary judgment only if both the facts relied upon to create probable cause and the reasonable inferences to be drawn from the facts are undisputed. Wal-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 681 S.W.2d 359 (1984). In the context of malicious prosecution, this court has defined “probable cause” as a state of facts or credible information which would induce an ordinarily cautious person to believe that the accused is guilty of the crimes charged. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). Moreover, in the context of malicious prosection, this court has defined “ordinary caution” as “‘a standard of reasonableness which presents an issue for the jury when the proof is in dispute or subject to different interpretations.’” Cox, 315 Ark. at 347, 867 S.W.2d at 464 (quoting Hollingsworth v. First Nat'l Bank & Trust Co., 311 Ark. 637, 640, 846 S.W.2d 176, 178 (1993)); Cordes, 301 Ark. at 31, 781 S.W.2d at 33.

In his response to the motion for summary judgment, appellant contended that appellee Arends had failed to disclose to the police all the facts known to her when she swore out the affidavit for arrest warrant, specifically, that she knew the Grand Am was available to be picked up, and that she only sought the return of the Grand Am, rather than appellant’s arrest. In her deposition, which was attached to appellant’s response, appellee Arends stated that she knew the car was available to be picked up in Piggott, Arkansas. Such knowledge on her part creates a dispute as to the existence of probable cause to charge appellant with theft of leased property. Additionally, appellant claims appellee Arends failed to disclose that she did not want appellant arrested, rather she wanted the Grand Am returned. Judge Webster stated in his affidavit, which was also attached to appellant’s response, that if he had known appellee Arends knew the Grand Am was available to be picked up, and that she only sought the return of the Grand Am, he would not have found probable cause existed to arrest appellant for theft of leased property. Clearly then, the material fact of probable cause was in dispute and presented a question for the jury to resolve. We have no hesitation in concluding the trial court erred in granting summary judgment on the claim for malicious prosecution.

ABUSE OF PROCESS

This court has stated the elements of the tort of abuse of process as follows:

(1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success, but, (2) perverted to accomplish an ulterior purpose for which it was not designed, and (3) a wilful act in the use of process not proper in the regular conduct of the proceeding.

Union Nat’l Bank v. Kutait, 312 Ark. 14, 16, 846 S.W.2d 652, 654 (1993). The key to this tort is the improper use of process after issuance to accomplish an ulterior purpose for which the process was not designed. Id. It is the purpose for which the process is used, once issued, that is of importance. W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 121, at p. 897 (5th ed. 1984). Abuse of process is somewhat in the nature of extortion or coercion. Kutait, 312 Ark. 14, 846 S.W.2d 652.

In their brief, appellees rely on Smith & McAdams, Inc. v. Nelson, 255 Ark. 641, 501 S.W.2d 769 (1973), a case where the owner of a truck initiated criminal prosecution on charges of larceny by bailee against its employee-drivers to recover the truck. The employees were arrested and brought to court where the charges were dismissed. At the ensuing trial for abuse of process, the truck owner testified his purpose in procuring an arrest warrant was to obtain the return of the truck; he testified further that he did not know nor care whether the drivers were tried on the charges. This court held there was no action taken subsequent to the filing of the charges, therefore there was no extortion or coercion. Nelson is distinguishable from the present case in that the criminal charges were dismissed in Nelson but brought to trial in the present case.

In the present case, the trial court granted summary judgment on appellant’s claim for abuse of process stating that no wrongful action was taken by either appellee after the charges were filed. The record clearly reflects facts from which a reasonable inference to the contrary of the trial court’s finding may be drawn. After appellee Arends completed the affidavit for arrest warrant and after she was told the Grand Am was available to be picked up, she did nothing to prevent the issuance of the warrant or the bringing of appellant to trial on the charge of theft of leased property, for which appellant was ultimately acquitted. The material issue of whether appellees’ use of legal process continued after the filing of the criminal charge until appellant was tried and acquitted was therefore in dispute.

Further, according to appellee Arends’s deposition, she only sought the return of the Grand Am, not appellant’s arrest. The use of criminal prosecution to extort payment of money or recovery of property has been cited by one treatise as a classic example of the tort of abuse of process. Prosser and Keeton at pp. 898, 899. In addition, this court has indicated that the service of an arrest warrant may constitute abuse of process. Kutait, 312 Ark. 14, 846 S.W.2d 652. Consequently, the record reflects a dispute as to the material issue of whether appellees pursued appellant’s arrest and criminal prosecution for the sole purpose of recovering property. The proof on this issue was susceptible of producing more than one inference and therefore should have been presented to a jury. We have no hesitation in concluding the trial court erred in granting summary judgment on the claim of abuse of process.

The order granting summary judgment is reversed and the case is remanded for trial.

Dudley, J., not participating.


author: Robert L. Brown, Justice.

text:
    Nakia DAVIS v. STATE of Arkansas
    CR 94-1376
    896 S.W.2d 438
    Supreme Court of Arkansas
    Opinion delivered April 10, 1995
    [Rehearing denied May 15, 1995.]

      William M. Howard, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This is an appeal from a judgment of conviction for capital murder under Ark. Code Ann. § 5-10-101(a)(l) (Supp. 1993). The penalty assessed was life imprisonment without the possibility of parole. Appellant Nakia Davis questions the trial court’s decision denying his motion for a directed verdict following the State’s case, which motion he premised on the insufficiency of the evidence for the underlying felony of aggravated robbery. We affirm the judgment of conviction.

In her opening statement at trial, the prosecutor set out her theory of the case which was that Nakia Davis and an accomplice, Romondo Jenkins, shot and killed the victim, Anthony Williams, in the course of robbing him. The State’s case revealed the following facts. On August 3, 1993, Anthony Williams received a small insurance settlement, approximately $2,000.00, as a result of an automobile accident. His fiance, Shawna Davis, testified that they paid utility bills and purchased a few items with part of the settlement money but intended to spend the bulk of the money on a new car, which they were to pick up on Friday, August 6, 1993. She testified that on Thursday night, August 5, 1993, Williams counted the remaining money, approximately $1,500.00, and placed it in the back of his checkbook. On Friday morning, Williams left the house to purchase several items he needed for the new car.

Patty McVay, a communications specialist with the Pine Bluff Police Department, testified that she received a 911 call at approximately noon on Friday, August 6, 1993. The caller stated that a brown car had run into a ditch and hit a fence, that a blue convertible had pulled up beside it, and that there was fighting inside the brown car. The caller also stated that someone was shooting at a person inside the brown car and that the person in the brown car appeared to be dead. He stated that there were five or six males in the blue convertible.

Stanley Lovett, Nakia Davis’s cousin, was originally arrested in connection with the shooting. He testified that he and several friends, including Davis, had been riding around in a blue convertible. He stated that they drove over to a friend’s house where they stayed for awhile. Lovett and two friends left without Davis, and when they returned, they saw a brown car stuck in a ditch with its tires spinning. He said he then got out of the blue convertible and walked over to the car in the ditch. He testified that he saw Davis walk down the driveway towards the brown car with a gun in his hand and fire three or four times into the back window of the car. The shots sounded as if they came either from a .22 or a .25 caliber pistol. He heard the victim in the car say, “Don’t shoot me no more. Don’t shoot me no more.” As Lovett got closer to the car, the door opened and Romondo Jenkins emerged from the car. Jenkins had blood on his hands and clothes. Davis and Jenkins walked quickly away toward the house, and Lovett returned to the blue convertible where his cousin, Carlos Urquhart, was waiting. The two drove the convertible around the block and picked up Davis and Jenkins in the alley behind the house. Lovett stated that he saw the victim, Anthony Williams, fall out of the car onto the ground, as they were driving away. After picking up Davis and Jenkins, they drove to a friend’s house. Lovett stated that he never saw Williams with a pistol.

Anthony Smothers, a correctional officer with the State Diagnostic Unit, happened to be passing by the scene shortly after the shooting. He testified that he saw a car in a ditch and stopped to render assistance. He stated that as he was nearing the car, Williams opened the passenger door and fell out onto the street. Smothers said that he stayed with Williams until the Pine Bluff police arrived on the scene. He stated that he did not see any weapons at the crime scene.

Detective Rowland Dorman of the Pine Bluff Police Department was the officer in charge of the investigation. He testified that he was unable to locate any weapons at the crime scene. He did locate several bullet casings in the area and a checkbook. The bullet casings consisted of three .25 caliber shell casings and one .380 caliber shell casing. The checkbook contained unused checks and $397. Detective Dorman added that gun powder residue was found on the hands of Romondo Jenkins.

Ronald Andrejack, a firearms examiner for the Arkansas State Crime Laboratory, testified that the three .25 caliber shells were discharged from the same gun. He also testified that the bullet removed from Williams’s abdomen was consistent with the .38 caliber class. Dr. Frank Peretti, Associate State Medical Examiner, next testified that Williams died from multiple gun shot wounds. He stated that Williams had been shot three times in his legs and that the wounds were consistent with wounds caused by .25 caliber bullets. Dr. Peretti added that it was the shot to the abdomen that was fatal.

No pistols were recovered at the crime scene. At the end of the State’s case, Davis moved for a directed verdict on the basis that the State failed to show any evidence of the underlying felony of aggravated robbery. The motion was denied.

Davis then testified on his own behalf. He admitted shooting into the brown car, but he testified that he did so only in self-defense. He stated that he was walking down the street when he heard a noise that sounded like a gunshot. He pulled his gun, and after seeing a brown car in the ditch, he placed the gun back in his waistband and walked towards the car. When he reached the car, he saw Romondo Jenkins and Anthony Williams wrestling inside the vehicle. He told Williams to “get up off my home boy.” At that point, Williams pointed a gun at Davis, and Davis shot him three times in the legs. He stated that he did not shoot Williams in the stomach and was out on the street when that occurred. He further denied seeing or participating in a robbery of Williams. No motion for directed verdict was made by Davis at the close of all of the evidence. The jury returned a verdict of guilty on the charge of capital murder, and Davis was sentenced to life in prison without parole.

Davis’s sole point on appeal is that there was insufficient evidence to support the underlying felony of aggravated robbery. Davis, however, did not preserve this point for our review.

Rule 36.21(b) of the Arkansas Rules of Criminal Procedure provides:

When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. (Emphasis ours.)

See also Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995); Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992); Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991). The fact that Davis made a specific motion at the close of the State’s case in chief is of no consequence because by presenting evidence in his defense, he waived his former motion for a directed verdict. See Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992); Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992), citing LaFave and Israel, 3 Criminal Procedure, § 23.6(a) (1984). It was, therefore, incumbent upon Davis to move for a directed verdict at the close of the case in order to give the trial court an opportunity to consider the motion in light of the total proof presented. Davis failed to do this, and the issue of the sufficiency of the evidence presented was waived under Rule 36.21(b).

The record of this case has been reviewed in accordance with Supreme Court Rule 4-3 (h) for rulings adverse to the appellant, and no reversible error has been found.

Affirmed.

Dudley, J., not participating.


author: Andree Layton Roaf, Justice.

text:
    TECHNICAL SERVICES OF ARKANSAS, INC., d/b/a JPAC Outdoor Advertising Company v. Jim C. PLEDGER, Director of Arkansas Department of Finance and Administration; and Timothy J. Leathers, Commissioner of Revenues, Arkansas Department of Finance and Administration
    94-1228
    896 S.W.2d 433
    Supreme Court of Arkansas
    Opinion delivered April 10, 1995

      Bradley & Coleman, by: Jon R. Coleman and Robert J. Gibson, for appellant.

      Kenneth R. Williams, for appellee.
   Andree Layton Roaf, Justice.

This case involves the interpretation and construction of our sales and use tax, the Arkansas Gross Receipts Act of 1941, as amended, and the Arkansas Compensating Tax Act of 1949, as amended. Appellant’s gross proceeds derived from sales of billboard advertising services are not taxed due to a specific exemption for advertising revenues earned by newspapers, publications, and billboard companies granted by the Arkansas Gross Receipts Act. Appellant failed to pay use tax on certain tangible items used in its advertising business, purchased from out-of-state vendors. No sales tax was collected from appellant by these vendors. Appellant claims that its gross proceeds exemption provides a basis for also exempting these items of personal property from the use tax because the items are purchased for use in providing advertising services to its customers. The chancellor ruled the items used in connection with the taxpayer’s billboard advertising service are not exempt from the use tax, Ark. Code Ann. § 26-53-106 (Supp. 1993). We affirm.

Appellant Technical Services of Arkansas, Inc., d/b/a JPAC Outdoor Advertising Company (Technical Services) is a corporation engaged in the business of billboard advertising. The appellant erects billboards and enters into contracts with its customers to rent or lease billboard advertising space. The Arkansas Department of Finance and Administration (DFA) conducted a use tax audit of Technical Services’ records for the audit period of January 1, 1988, through January 31, 1991. Technical Services was assessed a use tax deficiency, plus interest, in the amount of $16,367.13. The DFA assessed the use tax on “painted bulletins, posters, facings, hardware, and paint, purchased out of state for storage, usage, distribution, and consumption in Arkansas.” (Emphasis supplied.) After exhausting its administrative remedies, the appellant paid the tax under protest and pursued its challenge in chancery court.

The chancellor found the items in question constituted tangible personal property against which the use tax was properly assessed. The court found that Ark. Code Ann. § 26-52-401(13) (Supp. 1993) exempts billboard advertising services from Arkansas sales and use taxes, but expressed “some doubt about these items constituting a service.” Further, the trial court found the appellant did not possess an Arkansas retail sales and use tax permit; therefore, the purchases were not exempt as a sale for resale pursuant to Ark. Code Ann. § 26-52-401(12) (Supp. 1993).

On appeal, Technical Services submits (1) it was entitled to an exemption under Ark. Code Ann. § 26-52-401(13); (2) the items were exempt under the sale for resale exemption provided by § 26-52-401(12); and (3) the taxation of the use of property in billboard advertising is in violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution.

The standard of review in these cases is well established. A strong presumption operates in favor of the taxing power, and the taxpayer must establish an entitlement to an exemption from taxation beyond a reasonable doubt. Pledger v. C.B. Form Co., 316 Ark. 22, 871 S.W.2d 333 (1994); Pledger v. Baldor Int’l, Inc., 309 Ark. 30, 827 S.W.2d 646 (1992). Tax exemptions are strictly construed against the exemption, and we have written that “to doubt is to deny the exemption.” C.B. Form Co., supra. Finally, tax exemption cases are reviewed de novo and the appellate court does not set aside the findings of the chancellor unless they are clearly erroneous. Baldor, supra.

I. Ark. Code Ann. §26-52-401(13)

Jeff Simmons, a senior tax auditor with the DFA, testified he assessed use tax on the poles, facings, posters, lighting equipment and any and all hardware used to attach the billboard to the pole. Simmons testified he assessed the tax on the items because they were bought out of state and shipped through interstate commerce, and no sales tax was charged. According to the testimony of Bill Levins, general manager of the appellant, “national” clients often provided the prepared posters which the appellant placed directly on the leased billboard. However, for those clients who did not provide their own posters, the appellant acted as an “agent” in securing the poster paper. The clients could buy the paper directly from the poster company if they had credit approval; however, in order to expedite the process, the appellant allowed the poster company to bill the appellant. Mr. Levins testified that the other items taxed were “necessary in performing the services that we supply to our clients.” Further, it is significant that Mr. Levins testified the appellant paid sales taxes when it purchased items used in its business from local suppliers.

The appellant contends that pursuant to Ark. Code Ann. § 26-52-401(13) “billboard advertising services” are exempt from the gross receipts tax; therefore, pursuant to Ark. Code Ann. § 26-53-112 (1987), “billboard advertising services,” specifically the items of tangible personal property used to provide such services, are also exempt from the use tax. Further, the appellant submits that “services,” as contemplated by the legislature in enacting the exemption, means “business.” Consequently, the appellant contends no use taxes may be levied against the billboard advertising “business,” which includes the items in question. We disagree.

Arkansas Code Ann. § 26-53-106(a) (Supp. 1993) provides:

There is levied and there shall be collected from every person in this state a tax or excise for the privilege of storing, using, distributing, or consuming within this state any article of tangible personal property purchased for storage, use, distribution, or consumption in this state at the rate of three percent (3%) of the sales price of the property.

Arkansas Code Ann. § 26-53-112 (1987) provides in part:

There is specifically exempted from the taxes levied in this subchapter: . . .
(2) Sales of tangible personal property on which the tax under the Arkansas Gross Receipts Act, § 26-52-101 et seq., is levied, and any tangible personal property specifically exempted from taxation by the Arkansas Gross Receipts Act, § 26-52-101 et seq., and legislation enacted thereto. (Emphasis added.)

As authority for its claimed exemption from the use tax, the appellant relies upon the reference in § 26-53-112 to tangible personal property exempted by the Gross Receipts Act. Arkansas Code Ann. § 26-52-301 (Supp. 1993), gross receipts tax, provides in part:

There is levied an excise tax of three percent (3%) upon the gross proceeds or gross receipts derived from all sales to any person of the following:
(1) Tangible personal property; . . .

Arkansas Code Ann. § 26-52-103(4) (Repl. 1992) provides:

“Gross receipts” or “gross proceeds” means the total amount of consideration for the sale of tangible personal property and such services as are herein specifically provided for, whether the consideration is in money or otherwise, without any deduction on account of the cost of the properties sold, labor service performed, interest paid, losses, or any expenses whatsoever. . . .

However, Ark. Code Ann. § 26-52-401 (Supp. 1993) provides in part:

There is specifically exempted from the tax imposed by this act the following: . . .
(13) Gross proceeds derived from sales of advertising space in newspapers and publications and billboard advertising services', (Emphasis added.)

In essence, the appellant submits the items in question are “tangible personal property specifically exempted from taxation by the Arkansas Gross Receipts Act” and, consequently, are exempt from the use tax. We hold, however, that the items in question do not fall within the “billboard advertising services” exemption of the Gross Receipts Act. The gross proceeds exemption provided for sales of advertising services does not contemplate that all tangible personal property may be purchased tax free by a billboard advertising business. The exemption from the gross receipts tax simply provides that the “gross proceeds derived from sales” shall not be taxed. Further, the exception from the use tax found in § 26-53-112 exempts only tangible personal property specifically exempted by the Arkansas Gross Receipts Act. The items to be exempted are specifically described and identified in this act.

The purchase and use of the items in question and other tangible personal property used in the operation of the business are not exempt from taxation. The appellant submits the legislature intended to exempt the “business of billboard advertising” from the sales tax. Even assuming such an interpretation, the exemption is for the “gross proceeds derived from sales.” There is no exemption for tangible personal property simply because it is used in the conduct of the business. See § 26-53-112.

According to the appellant’s interpretation, any items involved to the “business” of billboard advertising would be exempt from the gross receipts tax and use tax. The appellant’s interpretation requires the Court to conclude the appellant is exempt from the use tax on the items purchased out of state because it would be exempt from the sales tax if the items were purchased in Arkansas.- Yet, it is significant that the appellant does not contest the payment of sales tax on items such as rope purchased in Arkansas for use in its “billboard advertising service.”

The statutory language, as opposed to the agency interpretation, is controlling when a tax statute is to be interpreted by the Court. Leathers v. Active Realty, Inc., 317 Ark. 214, 876 S.W.2d 583 (1994). Nevertheless, our interpretation is supported by the agency’s interpretation of the statute. Arkansas Gross Receipts Tax Regulation GR-48(A)(4) provides:

The term “billboard advertising services” means any and all services rendered in connection with the rental or lease of advertising space on an erection which is affixed to the land for the purpose of posting advertising messages.

Further, regulation GR-48(D) provides:

The gross receipts or gross proceeds derived from the sale of billboard advertising services are exempt from tax. (Emphasis added.)

The interpretation of statutes by an administrative agency, while not conclusive, is highly persuasive. In Re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992).

In the alternative, the appellant submits it was acting as an agent for its customers in purchasing the poster paper. The appellant contends the agency relationship is a “service” rendered in connection with the service of billboard advertising. As indicated, we hold the tax was not assessed on the “service” of supplying the poster paper, rather it was assessed against the appellant’s use or distribution of the poster paper. The appellant paid for and received the poster paper; such a purchase constitutes a use under the gross receipts act.

II. Sale For Resale

For its second point, the appellant asserts the items are exempt as sales for resale. Arkansas Code Ann. § 26-52-401 provides in part:

There is specifically exempted from the tax imposed by this act the following:
(12)(A) Gross receipts or gross proceeds derived from sales for resale to persons regularly engaged in the business of reselling the articles purchased, whether within or without the state if the sales within the state are made to persons to whom sales tax permits have been issued as provided in § 26-52-202.
(B) Goods, wares, merchandise, and property sold for use in manufacturing, compounding, processing, assembling, or preparing for sale can be classified as having been sold for the purposes of resale or the subject matter of resale only in the event the goods, ware, merchandise, or property becomes a recognizable integral part of the manufactured, compounded, processed, assembled, or prepared products. . . .

The trial court found the appellant did not possess an Arkansas retail sales and use permit, and, therefore, the purchases were not exempt as a sale for resale.

On appeal, the appellant submits it was not required to hold a permit because it is exempted from the sales tax by Ark. Code Ann. § 26-52-401(13). Because we hold the items in question are not exempt under § 26-52-401(13), in order to claim the sale for resale exemption, the appellant is required to hold a retail sales permit.

III. Equal Protection

As its final point on appeal, the appellant submits the Fourteenth Amendment of the United States Constitution prohibits the states from making or enforcing laws that deny any person equal protection of the laws. The appellant contends that the same statute which exempts billboard advertising services also exempts the gross receipts or gross proceeds derived from the sale of newspapers. Ark. Code Ann. § 26-52-401(4) and (13). The appellant submits the unequal enforcement of the two exemptions is unconstitutional. As support, the appellant cites the testimony of Wade Martin, general manager of the Jonesboro Sun, who stated the Jonesboro Sun does not pay a use tax on the ink or the paper used to produce the newspaper.

Although Mr. Martin testified at the trial, there is nothing in the record which indicates this argument was presented to the trial court. We will not decide an argument raised for the first time on appeal. Silvey Cos. v. Riley, 318 Ark. 788, 888 S.W.2d 636 (1994); Jarboe v. Shelter Insurance Company, 317 Ark. 395, 877 S.W.2d 930 (1994). Further, there is no indication in the record that the trial court ruled on the appellant’s argument. Failure to obtain a ruling, even with respect to a constitutional question, precludes the issue on appeal. Bonds v. State, 310 Ark. 541, 837 S.W.2d 881 (1992); See also Smith v. Leonard, 317 Ark. 182, 876 S.W.2d 266 (1994).

In sum, we hold the appellant is not entitled to an exemption from the use tax, § 26-53-106, on the items in question.

Affirmed.

Dudley, J., not participating.


author: Per Curiam.

text:
    William Frances BOWEN v. STATE of Arkansas
    CR 93-1003
    895 S.W.2d 941(1)
    Supreme Court of Arkansas
    Opinion delivered April 10, 1995
    No- response.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., for appellee.
   Per Curiam.

The state, by and through Deputy Attorney General Clint Miller, seeks permission to file a belated brief in this capital murder case after having received five prior extensions. The state’s brief was first due on June 19, 1994, but that time was extended to August 5, 1994, September 4, 1994, September 30, 1994, October 28, 1994, and December 2, 1994. We designated the December 2, 1994 extension to be a final one. However, the state’s brief was not filed on December 2, 1994, nor was a timely motion filed requesting another extension or explaining why a brief had not been filed. Instead, on March 16, 1995, the state filed its motion for belated brief asking it have until April 14, 1995. In its motion, the state sets forth reasons such as the voluminous record, large number of points raised and other appellate business as being causes for its untimely motion. State’s counsel, on the other hand, accepts full responsibility and faults no one else for his failure to complete the state’s brief.

We grant the state’s motion, however, a copy of this per curiam will be forwarded to the Committee on Professional Conduct.

Dudley, J., not participating.


text:
    Joseph O’NEAL v. STATE of Arkansas
    CR 95-148
    896 S.W.2d 592(2)
    Supreme Court of Arkansas
    Opinion delivered April 10, 1995

      Joseph P. Mazzanti III, for appellant.
    No response.
   Per Curiam.

Appellant, Joseph O’Neal, by his attorney, has filed for a rule on the clerk.

His attorney, Joseph P. Mazzanti, III, accepts full responsibility for failing to file the record on time.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Dudley, J., not participating.


text:
    McGEHEE v. STATE of Arkansas
    CR 95-368
    896 S.W.2d 593
    Supreme Court of Arkansas
    Opinion delivered April 24, 1995

      William M. Howard, Jr., for appellant.
    No response.
   Per Curiam.

Charles Allen McGehee, by his attorney, William M. Howard, Jr., has filed a motion for a rule on the clerk. His attorney admits by motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is, therefore, granted.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Dinzel NORMAN v. STATE of Arkansas
    CR 95-361
    896 S.W.2d 874
    Supreme Court of Arkansas
    Opinion delivered April 24, 1995

      George J. Stone, for appellant.
    No response.
   Per Curiam.

Appellant was convicted on September 6, 1994, of conspiracy to manufacture a controlled substance, methamphetamine, and manufacturing a controlled substance, marijuana. His notice of appeal was filed on September 27, 1994. On December 13, 1994, the Circuit Court of Newton County extended the time for filing the record until March 27, 1995. The record was tendered to the clerk’s office after the extended time for filing had lapsed.

The appellant has filed a motion for rule on the clerk to compel the clerk’s office to accept the record. In his motion, appellant states the reason the record was tendered late is that the Newton County Clerk’s Office failed to turn the transcripts over to appellant’s attorney or to file them themselves.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part but instead implies the Newton County Circuit Clerk’s Office failed to turn the transcripts over to him or to file it themselves. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice. David Newbern, Justice, Andree Layton Roaf, Justice,

text:
    Michael Thomas HAMILTON v. STATE of Arkansas
    CR 94-603
    896 S.W.2d 877
    Supreme Court of Arkansas
    Opinion delivered May 1, 1995

      William R. Simpson, Jr., Public Defender, Mac Carder, Jr., Deputy Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Michael Thomas Hamilton, a juvenile, was charged with first-degree murder in circuit court, convicted of manslaughter, and sentenced to a ten-year term of imprisonment. This case was transferred to us from the court of appeals under Ark. Sup. Ct. R. l-2(a)(3). Hamilton argues on appeal that the circuit court erred in allowing hearsay testimony at a hearing on his motion to transfer his case to juvenile court. Inasmuch as the circuit court’s findings were not premised on hearsay testimony, but, rather, upon the information filed against Hamilton, we affirm.

Facts

The appellant, Michael Thomas Hamilton, was charged by felony information on December 7, 1992, with first-degree murder in connection with the shooting death of eleven-year-old Shadrick Flemons at his home at 8 Winnie Cove in Jacksonville. Hamilton, who was fourteen on the date of the alleged offense, November 4, 1992, was charged as an adult in circuit court. On February 5, 1993, Hamilton filed a motion to transfer his case to juvenile court.

A hearing was held on the motion in circuit court on February 19, 1993, at which Detective Steven Ingram of the Jacksonville Police Department testified that he arrived at the scene of the shooting and interviewed three witnesses — Jeremy Wells, David Back and Matthew Duggie. Over Hamilton’s hearsay objection, Detective Ingram testified that the three young witnesses told him that they were playing “war games” amongst some trees in the front yard of 8 Winnie Cove when they observed Hamilton and the victim, who had a toy gun, arguing. According to Detective Ingram, two of the three boys told him that they watched Hamilton go into the house and retrieve a rifle off a gun rack. It was Detective Ingram’s testimony that one of the witnesses told him that Hamilton cocked the rifle back “like maybe he was loading it,” picked up a small box, put it down, then went outside to the front door and pointed the weapon at the victim. Apart from his testimony giving rise to the hearsay objection, Detective Ingram testified without objection that the eleven-year-old victim “had been shot in the head almost between the eyes.” Detective Ingram further testified, also without objection, that the preliminary autopsy report indicated that the shot which killed the victim was fired from close range. The circuit court also heard testimony from Hamilton and Reverend Marvin Thomas in support of Hamilton’s motion to transfer before denying the motion “based upon the level of violence that is alleged here.”

Hamilton’s case was tried in circuit court before a jury on October 13, 1993. The jury returned a guilty verdict for manslaughter, and the circuit court sentenced Hamilton to a ten-year term of imprisonment. In claiming as his sole point of error that “the circuit court erred by allowing the state to introduce hearsay testimony during the hearing on the appellant’s motion to transfer to juvenile court,” Hamilton, in reality, asserts that the trial court, in refusing to transfer his case to juvenile court, erroneously predicated its findings to retain jurisdiction on hearsay evidence.

Appealable order

The State asserts that this appeal should be dismissed as untimely since Hamilton failed to appeal the circuit court’s February 19, 1993, ruling denying transfer of his case to juvenile court. In making this assertion, the State asks us to adopt the rationale of State v. Harwood, 98 Idaho 793, 572 P.2d 1228 (1977), in which the Idaho Supreme Court held that a juvenile cannot challenge a trial court’s denial of a motion to transfer on direct appeal. We agree with the State’s argument, and find persuasive the following language in Harwood:

To allow a defendant who has been convicted in the superior court to question on appeal the propriety of the juvenile court’s finding would afford him an opportunity to secure a reversal of a judgment of conviction even though he was found guilty after an errorless trial. Such a defendant should not be allowed to silently speculate on a favorable verdict and then after an adverse judgment is entered proclaim that the juvenile court’s finding was erroneous. Moreover, it is in the accused’s best interest to seek immediate relief from an improper finding in the juvenile court so he may be spared the burden and public scrutiny associated with a criminal trial. Additionally, the delay inherent in criminal prosecutions may substantially prejudice a juvenile court reconsideration of its prior finding of unfitness should the cause be remanded after a review of criminal proceedings.

572 P.2d at 1229, quoting People v. Chi Ko Wong, 18 Cal.3d 698, 135 Cal. Rptr. 392, 557 P.2d 976 (1976).

In short, we adopt the reasoning of Harwood by holding that a juvenile cannot challenge transfer orders on direct appeal from a judgment or conviction of the circuit court. In doing so, we must determine whether, pursuant to the status of our current law, our holding should be prospective.

Prior to 1989, it was commonplace for the challenge of transfer orders from juvenile court to circuit court or from circuit court to juvenile court to be raised on appeal. This practice continued until the General Assembly passed Act 273 of 1989, which repealed the Juvenile Code of 1975. This enactment, codified as Ark. Code Ann. § 9-27-318(h) (Repl. 1993) provides in pertinent part that:

Any party may appeal from an order granting or denying the transfer of a case from one court to another court having jurisdiction over the matter.

Since the passage of Act 273, we have considered a number of cases involving transfer by way of interlocutory appeal. See Davis v. State, 319 Ark. 613, 893 S.W.2d 678 (1995); Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994); Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994); Walter v. State, 317 Ark. 274, 878 S.W.2d 374 (1994); Bell v. State, 317 Ark. 289, 877 S.W.2d 579 (1994); Johnson v. State, 317 Ark. 521, 878 S.W.2d 758 (1994); Whitehead v. State, 316 Ark. 563, 873 S.W.2d 800 (1994); Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993); Holland v. State, 311 Ark. 494, 844 S.W.2d 943 (1993); Wicker v. State, 310 Ark. 580, 839 S.W.2d 186 (1992); Walker v. State, 304 Ark. 393, 803 S.W.2d 502, supplemental opinion on denial of rehearing, 304 Ark. 402-A, 805 S.W.2d 80 (1991); Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992); Cobbins v. State, 306 Ark. 447, 816 S.W.2d 161 (1991); Bradley v. State, 306 Ark. 621, 816 S.W.2d 605 (1991). However, we have also described appeals from denials of transfer motions as “although ... interlocutory in nature, they are appealable by statute.” Webb v. State, 318 Ark. 581, 886 S.W.2d 618 (1994), citing State v. Hatton, 315 Ark. 583, 868 S.W.2d 492 (1994). While we have not specifically held that denials of transfer motions are appealable after a judgment of conviction, we have addressed this issue in at least two cases on direct appeal following a conviction in circuit court. See Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993); Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992). See also Porter v. State, 43 Ark. App. 110, 861 S.W.2d 122 (1993).

In reviewing our cases and legislation dealing with the issue of denials of transfer, it is obvious that, prior to the passage of Act 273 of 1989, codified at Ark. Code Ann. § 9-27-318(h), direct appeals were the preferred method of review; permissive interlocutory appeals were made practicable only by the passage of this act. Our cases since that date have seemed to go both ways, thus it would be unconscionable at this time to deny or foreclose Hamilton’s right to appeal. For this reason, we adopt a prospective rule regarding the appeal of transfer orders pursuant to Ark. Code Ann. § 9-27-318(h), and hold that for criminal prosecutions commenced after the finality of this opinion, an appeal from an order granting or denying transfer of a case from one court to another having jurisdiction over juvenile matters must be considered by way of interlocutory appeal, and an appeal from such an order after a judgment of conviction in circuit court is untimely and will not be considered.

Denial of transfer

In examining the denial of Hamilton’s motion to transfer, the standard of review in such juvenile-transfer cases is whether the circuit court’s denial of the motion was clearly erroneous. Davis v. State, supra; Bell v. State, supra; Beck v. State, supra; Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). However, we do not reach the merits of Hamilton’s hearsay argument, as there is no indication that the trial court’s findings were based on anything other than the information filed with the trial court. The circuit court denied the motion to transfer, obviously referring to the criminal information. We have said that the serious and violent nature of an offense is a sufficient basis for denying a motion to transfer and trying a juvenile as an adult, and that a criminal information, on its own, is sufficient to establish that the offense charged is of a serious and violent nature. Id.; See also Walker v. State, supra. Here, the information alleged that Hamilton committed first-degree murder by “unlawfully, feloniously, and with the purpose of causing the death of another person, did cause the death of Shadrick Flemons.” In short, the charge by way of the criminal information alone was clear and convincing evidence which supported the circuit court’s denial of the motion to transfer; accordingly, we cannot say that its ruling was clearly erroneous.

Affirmed.

Newbern and Roaf, JJ., dissent.

David Newbern, Justice,

dissenting. Justice Roaf’s dissenting opinion expresses my views on this case, and I join in that opinion. I wish to add only that the majority has now given us a prime example of the error we made in Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). There we placed the burden of proof on the juvenile rather than the State with respect to whether the juvenile should be tried as an adult. That has allowed us to permit the trial courts, time and again, to sanction adult trials for children solely on the basis of a charge of a violent crime.

No doubt some people below the age of 18 are tough, hardened, and incorrigible. In my view, the transfer provisions should be interpreted so that such persons wind up being treated as adults. The State, however, in a case such as this one, should be required to show more than that a youngster who was aged 14 has been charged with committing one act of violence.

I respectfully dissent.

Roaf, J., joins in this dissent.

Andree Layton Roaf, Justice,

dissenting. I cannot argue with the rationale employed by the majority in holding that henceforth, juvenile transfer orders may not be appealed after a judgment of conviction in circuit court. However, the state will not be appealing from circuit court convictions after a transfer or refusal to transfer, as the case may be; this holding will only affect juveniles, and I must dissent.

Of course a juvenile can be “found guilty after an errorless trial,” even when he should not have been tried in circuit court in the first place. The question for me is how he got to circuit court, not what happened afterward. In light of this court’s previous holdings in Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995), and Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), it seems to be open season on juveniles, at least in the context of juvenile transfer hearings. Indeed, the state in the instant case now seriously argues that the rules of evidence should not apply in such hearings. The majority wisely does not reach this issue in this sad case involving young playmates playing without adult supervision and with access to unsecured guns and ammunition. Undoubtedly, it is an issue that we will confront again.

I respectfully dissent.

Newbern, J., joins the dissent.