author: Donald L. Corbin, Justice.

text:
    NATIONAL ENTERPRISES, INC., and Horace M. and Betty J. Nix v. UNION PLANTERS NATIONAL BANK OF MEMPHIS
    95-165
    910 S.W.2d 691
    Supreme Court of Arkansas
    Opinion delivered December 4, 1995

      Taylor & Montgomery, by: Joel Taylor, and Wilson & Assoc.s, P.A., by: Robert M. Wilson, Jr., for appellants.

      Friday, Eldredge & Clark, by: Meredith Catlett and Harry Light, for appellee.
   Donald L. Corbin, Justice.

Appellants, National Enterprises, Inc. (“NEI”), and Horace M. and Betty J. Nix, appeal the order of the Garland County Chancery Court denying their post-judgment motion to intervene in this foreclosure action pursuant to ARCP Rule 24. Jurisdiction of this appeal is properly in this court as a case in which the interpretation or construction of Rule 24 is in question. Ark. Sup. Ct. R. l-2(a)(3). Because we affirm the chancellor’s threshold determination that the motion to intervene was untimely, we need not address other arguments raised in this appeal. Employers Nat’l Ins. Co. v. Grantors to the Diaz Refinery PRP Comm. Site Trust, 313 Ark. 645, 855 S.W.2d 936 (1993); Cupples Farms Partnership v. Forrest City Prod. Credit Assoc., 310 Ark. 597, 839 S.W.2d 187 (1992).

The decision as to the timeliness of a motion to intervene belongs to the trial court and is not reversed absent an abuse of discretion. Arkansas Best Corp. v. General Elec. Capital Corp., 317 Ark. 238, 878 S.W.2d 708 (1994); Cupples Farms Partnership, 310 Ark. 597, 839 S.W.2d 187. With respect to post-judgment motions to intervene, the general rule is that “intervention will be allowed only upon a strong showing of entitlement by the applicant or a demonstration of unusual and compelling circumstances and the courts have shown a strong reluctance to grant intervention after a final judgment.” UHS of Arkansas, Inc. v. City of Sherwood, 296 Ark. 97, 102, 752 S.W.2d 36, 38 (1988). Accord Arkansas Dep’t of Health v. Westark Christian Action Council, 319 Ark. 288, 890 S.W.2d 582 (1995); Arkansas Best Corp., 317 Ark. 238, 878 S.W.2d 708. We find that appellants have not met that test.

Appellee, Union Planters National Bank of Memphis, commenced this foreclosure action in 1988 with respect to certain real and personal property referred to as the Lake Hamilton Resort and Conference Center, formerly known as the Hot Springs Sheraton (the “Hotel”). The foreclosure action was based upon a mortgage and security agreement made on August 12, 1983, between appellee, as mortgagee, and Painter’s Point Development Company Limited Partnership (“Painter’s Point”), as mortgagor, and filed for record on August 12, 1983. In 1990, the chancellor entered a foreclosure decree that awarded a money judgment for appellee against Painter’s Point, declared appellee’s interest superior to all other interests in the Hotel, and mandated the sale of the Hotel by public auction; a subsequent order confirmed the sale of the Hotel to appellee.

On July 7, 1994, appellants filed their motion to intervene, seeking intervention as a matter of right under Rule 24. Appellants filed a complaint for intervention on August 30, 1994. In their pleadings, appellants alleged that NEI owns the unsold timeshare units and the Nixes are time-share unit owners in a condominium located on property that is adjacent to and surrounded by the Hotel (the “Condominium”). Appellants claimed an interest in the Hotel, for purposes of Rule 24, based primarily upon a written agreement purporting to create a nonexclusive license for the benefit of certain time-share unit owners in the Condominium with respect to the Hotel (the “License Agreement”). Appellants alleged that their interest in the Hotel, pursuant to the License Agreement, entitled them to notice and to be made parties to the foreclosure action, that appellee’s failure to do so operated as a fraud against them, and, therefore, the foreclosure sale and decree should be set aside pursuant to ARCP Rule 60.

The License Agreement was made on June 20,1985, between Lakeshore Resort and Yacht Club Limited Partnership (“Lakeshore”) and Painter’s Point. The License Agreement extended to and included the successors and assigns of each signatory. The License Agreement expressly conveyed the use, enjoyment and benefit of all recreational amenities and twenty unidentified parking spaces owned by Painter’s Point and employed in the operation of the Hotel to Lakeshore as an irrevocable nonexclusive grant of license. The License Agreement recited that the use of the recreational amenities and parking facilities would be extended to each timeshare condominium purchaser that purchased from Lakeshore. A memorandum of agreement, subsequently executed by. Lakeshore and Painter’s Point, acknowledged the terms of the License Agreement.

After a hearing, the chancellor dismissed appellants’ motion to intervene by order filed on October 31, 1994. This appeal arises therefrom.

Entitlement to intervene as a matter of right requires that the applicant establish a sufficient interest in the property that is the subject of the action. UHS of Arkansas, Inc., 296 Ark. 97, 752 S.W.2d 36. Here, the chancellor ruled that appellants failed to timely exercise a sufficient interest in the Hotel. We cannot find that the chancellor’s ruling was clearly erroneous. First, the record fails to provide any proof of appellants’ purported time-share ownership interests in the Condominium, e.g., a document of title, or that their purported ownership interests were acquired from Lakeshore, and, therefore, were subject to the License Agreement. Second, the record reveals that the License Agreement was entered into after the date of recordation of appellee’s mortgage and security agreement. See Amstar/First Capital, Ltd. v. McQuade, 42 Ark. App. 185, 187, 856 S.W.2d 326, 327 (1993) (“It has long been the law in this State that nothing can be done by the mortgagor, subsequent to the execution of a valid mortgage, which can impair the rights of the mortgagee.”) Third, the record reveals that, in separate litigation between NEI and the Hotel’s apparent current owner, Lake Hamilton Resort, Inc., the chancellor held that the License Agreement did nothing more than create a license without any estate or interest in the Hotel; the record fails to reveal that any appeal therefrom was perfected.

An additional factor in establishing entitlement to intervene as matter of right is whether the applicant’s interest is adequately represented by the existing parties to the litigation. UHS of Arkansas, Inc., 296 Ark. 97, 752 S.W.2d 36. An interest is adequately represented when the interest of a party to the litigation is identical or not significantly different from that of the proposed intervenors. Id. The record reveals that Lakeshore was named and duly served with a summons as a party-defendant by appellee in the foreclosure proceedings, but made no appearance. Logically, as a signatory to the License Agreement and appellants’ purported predecessor-in-title with respect to the Condominium, its interest in the Hotel was identical to or not significantly different from that of appellants. Appellants, however, do not address the issue of whether their interest was adequately represented by Lakeshore for purposes of Rule 24.

Although the foreclosure action proceeded to judgment approximately four years before their motion to intervene was filed, appellants argued that they acted timely because the Nixes attempted to intervene shortly “after they were denied access to utility services and the use of recreational factualities [sic] as part of their time share unit” and because NEI did not acquire its interest in the Condominium until May 1994. We do not consider this argument due to appellants’ failure to provide any proof of the date of acquisition of their purported ownership interests in the Condominium, or of any denial of their alleged rights under the License Agreement. Appellants also argue that they and more than one thousand other condominium unit owners will be left “landlocked” and deprived of the use and enjoyment of their property if they are denied their alleged rights under the License Agreement. However, the record reveals that in the above-mentioned related litigation filed by NEI, the chancellor granted an easement by way of necessity for purposes of ingress and egress to NEI’s property. Further, appellants’ argument that their loss of the use of the unspecified recreational amenities and twenty unidentified parking spaces granted under the License Agreement constitutes an “unusual and compelling” circumstance is not persuasive.

The chancellor deemed the motion to intervene untimely. On this record, we find no abuse of discretion. The ruling is affirmed.

       Rule 24 provides, in pertinent part:
      (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action:... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that .the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

         National Enterprises, Inc. v. Lake Hamilton Resort, Inc., Garland County Chancery Court Case No. 94-705. Order entered August 30, 1994, as abstracted.


source: Caselaw Access Project

license: Public Domain

text:
    NATIONAL PARK MEDICAL CENTER, INC., d/b/a AMI National Park Medical Center v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Tom Dalton, Director of Arkansas Department of Human Services, in His Official Capacity
    95-411
    911 S.W.2d 250
    Supreme Court of Arkansas
    Opinion delivered December 4, 1995

      Simpson & Graham, P.A., by: Harold H. Simpson and Lynda M. Johnson, for appellant.

      Charles A. Mackey, for appellees.
   Donald L. Corbin, Justice.

Appellant, National Park Medical Center, Inc., d/b/a AMI National Park Medical Center, a provider of Medicaid services in Garland County, appeals the order of the Pulaski County Circuit Court granting the cross-motion for summary judgment of appellees, the Arkansas Department of Human Services and Tom Dalton, in his official capacity as the director thereof. Appellant questions the validity of certain administrative rules adopted by appellees to implement the Medicaid Inpatient Obstetrical and Routine Newborn Care Waiver Program (“OB Waiver Program”), as violative of the Arkansas Administrative Procedure Act (“APA”), Ark. Code Ann. § 25-15-201 to -214 (Repl. 1992 & Supp. 1993), and the Arkansas Freedom of Information Act (“FOIA”), Ark. Code Ann. § 25-19-101 to -107 (Repl. 1992 & Supp. 1993). Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3). We affirm the trial court’s judgment.

Background

The facts of this case are undisputed. The OB Waiver Program restricts the provision through Medicaid of certain inpatient obstetrical and routine newborn services, formerly available from any Medicaid provider hospital, to only those Medicaid provider hospitals designated by contract with appellees. During the period from approximately November 16, 1993, to approximately March 23, 1994, appellees took the following actions with respect to the OB Waiver Program: solicitation of bids from Medicaid provider hospitals in six counties, including Garland County, for provision of OB Waiver Program services; award of the provider contracts pursuant to competitive bid; execution of the Garland County provider contract with St. Joseph’s Regional Health Center located in Hot Springs; acquisition of a waiver from the federal Health Care Financing Administration (“HCFA”) for the provider contracts as regards certain provisions of the federal Social Security Act that the provider contracts would otherwise violate; and subsequent application for an amended HCFA waiver. Appellees developed the concepts of the bid solicitation and HCFA waiver at staff meetings that were not open to the public.

The original party-plaintiff and appellant’s corporate predecessor-in-interest, American Medical International, Inc. d/b/a AMI National Park Medical Center (“AMI”), commenced this action on February 25,1994, by filing a complaint in the Pulaski County Chancery Court, as amended on May 10, 1994. AMI was an unsuccessful bidder for the Garland County provider contract. Pursuant to subsequent court orders, the action was transferred to the Pulaski County Circuit Court and appellant was substituted as party-plaintiff. The amended complaint alleged that the foregoing actions of appellees constituted “De-Facto Rulemaking” in violation of the APA’s procedures for adoption of administrative rules of section 25-15-204 and the FOIA’s open public meetings requirement of section 25-19-106, and prayed for declaratory and injunctive relief.

On December 22, 1994, appellees published a “Notice of Rule Making” in the Arkansas Democrat-Gazette with respect to the changes in the Medicaid program contemplated by the bid solicitation. On or about December 22, 1994, appellees also mailed notices concerning implementation of the provider contracts to health care providers and Medicaid beneficiaries as required by the HCFA. Appellees also prepared revised pages for the Medicaid Provider Manual reflecting the changes in the Medicaid program necessitated by implementation of the provider contracts.

Appellees provided the period from December 22, 1994, to January 30, 1995, for interested parties to submit written data, views or arguments concerning the adoption of the proposed rules. On January 11, 1995, appellees filed the proposed rules with the Arkansas Secretary of State and Arkansas State Library, with an adoption date of April 1, 1995.

On February 17, 1995, appellant filed a motion for summary judgment supported by a document entitled “Undisputed Facts.” On February 28, 1995, both parties signed and filed a document entitled “Amended Undisputed Facts.” On March 2, 1995, appellees filed a response to the motion for summary judgment and a cross-motion for summary judgment supported by the “Amended Undisputed Facts.” On March 3, 1995, appellant filed a response to the cross-motion. On March 31, 1995, the trial court filed its judgment, adopting the “Amended Undisputed Facts,” denying appellant’s summary judgment motion and granting appellees’ cross-motion for summary judgment. This appeal arises therefrom.

Standard of review

The facts are not in dispute. In such a case, this court simply determines whether the appellee was entitled to judgment as a matter of law. City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994).

APA issue

With respect to the APA issue, the trial court ruled that, in developing the bid solicitation and awarding the provider contract, appellees followed state contracting procedures according to the Arkansas Purchasing Law, Ark. Code Ann. § 19-11-201 to -261 (Repl. 1994), and that appellant participated fully in that process; that the actions that occurred to develop the bid solicitation did not appear to be the type of activity contemplated in the statutory definitions of rule and rule making, thus no de facto rule making took place; and that after the bid solicitation process was completed, appellees then followed APA procedures.

Appellant’s first argument is that appellees did not comply with APA procedures before final implementation of the rules implementing the OB Waiver Program because appellees violated the public comment requirement of section 25-15-204(a)(2) by failing to provide the public with “reasonable opportunity” for comment prior to adoption of the rules. Therefore, appellant argues, the rules are invalid and appellees were not entitled to summary judgment as a matter of law. See section 25-15-204(f) (invalidating rules adopted without substantial compliance with section 25-15-204). Appellant’s argument is premised upon his assertions, first, that the opportunity for comment must “occur prior to the agency fixing on its decision,” and, second, that appellees were committed to all substantive details of the proposed rules prior to the end of the public comment period on January 30, 1995, owing to the provider contract and HCFA waiver that were then in place. This argument is meritless.

Appellant cites Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals and Health Care, 417 A.2d 358 (Conn. 1979), for the proposition that the purpose of the public comment period is to provide the public with an opportunity to participate in the rule making process and to enable the agency to educate itself before establishing rules. While we do not disagree with this principle, we find Salmon Brook unpersuasive on the facts of the case before us because the issue presented to the Connecticut Supreme Court was simply whether the APA was applicable.

Appellant relies upon Mahoney v. Shinpoch, 732 P.2d. 510 (Wash. 1987), for its assertion that section 25-15-204(a)(2) is violated if the agency has “already fixed on its decision” prior to expiration of the public comment period. In Mahoney, the Washington Supreme Court quoted its state’s public comment statute, which required that prior to adoption or amendment of a rule the agency “shall consider fully all written and oral submissions respecting the proposed rule,” and held that the statute was not satisfied on the facts of that case. Mahoney, 732 P.2d. at 515. Because the APA public comment statute for the State of Washington differs substantially from section 25-15-204(a)(2) and because of factual differences in the cases, we find Mahoney unpersuasive. Further, appellant’s assertion that appellees had “fixed” upon the proposed rules by virtue of the provider contract and HCFA waiver is not borne out by the record. The provider contract, as abstracted, indicates that appellees had a right to cancel for convenience, and the undisputed facts reveal that amendment to the HCFA waiver could be requested. Logically, then, appellees had the ability to modify the proposed rules during the public comment period to the extent the rules emulated the terms of the provider contract or HCFA waiver. Appellant was also fully aware of the procedure followed by appellees since it competed for a provider contract and could not argue that its own ability to comment on the proposed rules was curtailed.

Appellant also summarily argues that the trial court’s ruling was erroneous because it focused entirely upon the bid solicitation and contract award to the exclusion of appellees’ other actions “prior to initiation of the formal rule making process.” We decline to address this argument because it is made without binding authority or convincing argument. Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995).

The trial court did not err in granting summary judgment on the APA issue. An administrative regulation is afforded the same presumption of validity given a statute, and we review agency rule making procedures to determine if the agency acted arbitrarily, capriciously, in an abuse of discretion, or otherwise not in accordance with the law. Department of Human Servs. v. Berry, 297 Ark. 607, 764 S.W.2d 437 (1989). Appellant has failed to carry its burden to demonstrate error.

FOIA Issue

With respect to the FOIA issue, the trial court quoted the open public meetings requirement of section 25-19-106(a) and ruled that appellees’ staff meetings held to develop the bid solicitation were not subject to the FOIA “because they do not appear to be the type of meeting that is contemplated by the statute.” Appellant argues that these meetings were subject to and conducted in violation of section 25-19-106 and that the appropriate action is to invalidate the administrative rules. This argument is meritless.

Section 25-19-106 provides, in pertinent part:

(a) Except as otherwise specifically provided by law, all meetings, formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts and all boards, bureaus, commissions, or organizations of the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds, shall be public meetings.

The definitions provision of the FOIA, section 25-19-103, defines “public meetings” as follows:

(2) “Public meetings” means the meetings of any bureau, commission, or agency of the state, or any political subdivision of the state, including municipalities and counties, boards of education, and all other boards, bureaus, commissions, or organizations in the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds.

Section 25-19-106, therefore, does not plainly encompass appellees’ challenged staff meetings. Further, we are aware of no case law that is contravened by the trial court’s ruling that these meetings were not subject to section 25-19-106. See John J. Watkins, Arkansas Freedom of Information Act, Chapter 4 “Open Meetings” and cases cited therein (2d ed. 1994). Being mindful of the administrative nightmare that would ensue if such staff meetings were required to comply with section 25-19-106, and consistent with our long-held rule that statutory construction requires a common sense approach, e.g., Dozier v. Ragsdale, 186 Ark. 654, 55 S.W.2d 779 (1932), we find the trial court’s ruling was not error.

Further, even if appellees’ staff meetings had violated section 25-19-106, voidability would not be an appropriate remedy on the facts of this case. In Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985), a case relied upon by appellant, we stated that voidability of some agency actions is a valid option to enforcement of section 25-19-106, consistent with our policy to liberally construe the FOIA. However, we declined to grant the remedy of voidability on the facts of that case, even though we held the agency action violated the FOIA. We stated that development of the law on invalidation would necessarily be made on a case-by-case basis. Among our reasons for declining to grant voidability in Rehab Hospital Services Corp. were, first, that there was no showing that the agency knowingly violated the FOIA or that the appellant brought it to the agency’s attention, and, second, that the appellant did not seek to protect the public’s right to information, but sought invalidation solely for its own purposes.

In this case, there has been no showing that appellees knowingly violated section 25-19-106 by conducting staff meetings in which the concept of the bid solicitation, which was issued on or about November 16, 1993, was developed. Appellees’ purported FOIA violation via its staff meetings was brought to their attention when AMI filed a bid protest, dated January 28, 1994, with appellees and the Office of State Purchasing, pursuant to section 19-11-244 of the Arkansas Purchasing Law, of the award of any contract pursuant to the bid solicitation. It is noteworthy, however, that on January 14, 1994, according to the bid protest, AMI filed a bid pursuant to the bid solicitation. It is undisputed that the submitted bids were publicly opened on January 21, 1994, and that, by letter dated February 1,1994, appellees awarded the Garland County provider contract to St. Joseph’s Regional Health Center. By letter dated February 1, 1994, appellees also issued a final agency determination that appellant’s protest was without merit, a copy of which letter was attached to appellant’s response to the cross-motion.

The requirement that a party must bring the purported FOIA violation to the attention of the agency prior to filing a declaratory judgment action derives from the principle of exhaustion of administrative remedies. Rehab Hasp. Servs. Corp., 285 Ark. 397, 687 S.W.2d 840. The purpose for the requirement is to afford the agency the opportunity to address the issue, thereby reducing the potential for harm if we allowed invalidation on the basis of an unintentional past violation of the FOIA by the agency. Id. Otherwise, as we have held:

It would mean that any person who did not like a resolution, ordinance, rule, or regulation passed since the inception of the [FOIA] could have it invalidated, under the subterfuge of freedom of information, because of some unintentional past violation which had never been brought to the attention of the governmental entity. Such an interpretation would create a substantial amount of undesirable uncertainty.

Id. at 401, 687 S.W.2d at 843. This concern is aptly illustrated by the present case, in which it is not clear either that appellees were timely afforded an opportunity to address the purported FOIA violation arising from its staff meetings, or that appellant exhausted its administrative remedies. Although AMI eventually brought the purported FOIA violation to the attention of appellees, its bid protest was not filed until after the bid solicitation had been outstanding for some two months and the submitted bids, including AMI’s bid, had been publicly opened. Further, the record fails to show either that AMI appealed the purported denial of its rights pursuant to the procedure for appeal set forth in section 25-19-107 of the FOIA, which requires that a judicial hearing be conducted within seven days of the date of application of the aggrieved party, or that appellant sought judicial review of appellees’ final agency action that its bid protest was without merit.

The amended complaint filed in this action prays for a declaration that appellees’ actions were rule making conducted in violation of the APA and FOIA, for a preliminary injunction to prohibit appellees from taking action as regards the HCFA waiver, the bid solicitation or the provider contracts, for a permanent injunction to prohibit appellees from taking action as regards the HCFA waiver, the bid solicitation, the provider contracts, and for a permanent injunction prohibiting appellees from taking action as regards the provision of Medicaid inpatient obstetrical and routine newborn care services pursuant to competitive bidding in violation of the APA and FOIA. Appellant does not seek to protect the public’s right to information. It seeks invalidation of appellees’ actions as regards the OB Waiver Program as an unsuccessful bidder for the provider contract for Garland County.

Finally, appellant argues that the trial court erred by focusing entirely upon the bid solicitation process to the exclusion of appellees’ other actions. The burden of obtaining the trial court’s ruling regarding issues sought to be raised on appeal belongs to the appellant. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995). This argument is therefore without merit.

The trial court’s judgment is affirmed.

       nection 25-15-202(4).

       Section 25-15-202(5).

       Section 25-15-204(a)(2) provides:
      (a) Prior to the adoption, amendment, or repeal of any rule, the agency shall:
      (2) Afford all interested persons reasonable opportunity to submit written data, views, or arguments, and, if the agency in its discretion shall so direct, oral testimony or argument. Where rules are required by law to be made on the record after opportunity for an agency hearing, the provisions of that law shall apply in place of this subdivision.

      A copy of the bid protest was attached to appellant’s response to the cross-motion for summary judgment.


text:
    Joe ROBSON v. Robert P. TINNIN, D.D.S., Individually, and d/b/a Family Dental Center
    95-580
    911 S.W.2d 246
    Supreme Court of Arkansas
    Opinion delivered December 4, 1995

      Sam Sexton III, for appellant.

      Davis, Cox & Wright, by: Constance G. Clark and Kelly P. Carithers, for appellee.
   Donald L. Corbin, Justice.

Appellant, Joe Robson, appeals the order of the Washington County Circuit Court granting summary judgment to appellee, Robert R Tinnin, D.D.S., individually and d/b/a Family Dental Center, on appellant’s claim for dental malpractice. Jurisdiction of this appeal was properly certified to this court as it involves a question about the law of torts. Ark. Sup. Ct. R. l-2(a)(16). Appellant raises four points for reversal of the summary judgment, none of which has merit. Therefore, we affirm.

Appellant filed a complaint alleging he had contracted with appellee in Fayetteville, Arkansas, for appellee to repair teeth on appellant’s lower jaw by means of an implant. In the complaint, appellant did not challenge the installation of the implant. Rather, he claimed appellee failed to carefully “change” the implant and failed to warn him of the risks involved. Significantly, appellant did not allege that appellee was negligent for failing to treat a fractured bicuspid, although he did allege that appellee’s negligence caused him to lose healthy teeth.

After appellant answered appellee’s interrogatories, appellee moved for summary judgment on the basis that appellant had not offered proof of essential elements of his case, that being expert testimony to establish the standard of care and breach thereof. Relying on Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991), the trial court agreed with appellee that expert testimony was required to establish the standard of care and appellee’s breach thereof after appellee had made a prima facie case that the standard of care had been met, and further agreed that appellant had failed to produce any expert testimony on those two elements of his malpractice claim. The trial court therefore granted appellee’s motion for summary judgment.

Appellant’s first point for reversal is that appellee did not meet his burden of showing he was entitled to summary judgment because the affidavits presented in support of the motion were conclusory and therefore insufficient to withstand summary judgment. It is well settled that affidavits that are conclusory rather than factual are insufficient to support a motion for summary judgment. Swindle v. Lumbermens Mut. Casualty Co., 315 Ark. 415, 869 S.W.2d 681 (1993).

According to appellee’s motion, the two dental experts appellant identified in his answers to interrogatories were Dr. Henry Matthews, D.D.S., of Fayetteville, Arkansas, and Dr. Joe Mas-sad, D.D.S., of Tulsa, Oklahoma. In his motion, appellee pointed out that, according to appellant’s answers to interrogatories, Dr. Massad had not yet presented appellant with any written reports and had not yet formed an opinion about the case. Attached to appellee’s motion were an affidavit from Dr. Matthews denying that he had ever agreed to testify as an expert in this case on the issues of the applicable standard of care of dental treatment in Fayetteville and appellant’s alleged breach thereof, and appellee’s own affidavit to the effect that he had not been negligent in treating appellant.

Appellant’s first argument is without merit. Appellee concedes that his own affidavit is largely conclusory. However, Dr. Matthews’s affidavit contains statements of fact that he has not been asked to testify as to the applicable standard of care nor as to the breach thereof in this case. Dr. Matthews further averred that he found no indication that appellee’s treatment of appellant fell below the applicable standard of care. The only other dental expert identified by appellant, Dr. Massad, had not yet formed any opinions about this case. Thus, the foregoing factual statements in Dr. Matthews’s affidavit were sufficient to make a prima facie case and support appellee’s motion for summary judgment.

For his second point for reversal, appellant contends the trial court erred in ruling that his affidavit, which was attached to his response to appellee’s motion, contained hearsay. Appellant stated in his affidavit that he suffered a fractured bicuspid while under appellee’s treatment, that appellee took no action to repair the fractured tooth, and that Dr. Matthews informed him about the appropriate treatment for the fractured bicuspid, which Dr. Matthews informed him, appellee should have followed. The trial court did not consider appellant’s affidavit, ruling that it contained hearsay and was therefore in violation of ARCP Rule 56(e), which requires that affidavits set forth facts admissible in evidence. Appellant argues that Dr. Matthews’s reported statements pertaining to a fractured bicuspid are not hearsay and are admissible as prior inconsistent statements under A.R.E. Rule 801(d)(1). Appellant argues further that when his affidavit is considered, he has demonstrated that issues of material fact, namely the applicable standard of care and appellee’s breach, are in dispute.

Appellant does not cite any authority or offer any convincing argument that Rule 801(d)(1) is applicable to affidavits presented in summary judgment proceedings. Rule 801(d)(1) is expressly applicable to declarants who testify at trial or hearing and are subject to cross-examination. In any event, we need not decide the applicability of Rule 801(d)(1) to this summary judgment case because, as the trial court recognized, even when appellant’s affidavit is considered, it does not demonstrate a disputed issue of material fact. Quite simply, a statement that a dentist should have given a particular treatment or taken a particular course of action is not the equivalent of stating the applicable standard of care and breach thereof. Moreover, appellant’s affidavit is completely silent regarding the standard of care for the act of negligence alleged in his complaint — the failure to adequately effect the change of an implant for his lower jaw and the failure to warn of the risks involved — and the complaint is completely silent on the fractured bicuspid discussed by Dr. Matthews.

Appellant’s third point for reversal is that the affidavit of Dr. Massad, which was attached to appellant’s response to appellee’s motion, was sufficient to withstand the motion for summary judgment. Included in this argument is a “reminder” to this court that appellant’s claim was for appellee’s omissions in treating the fractured bicuspid. Again, we emphasize that the words “fractured bicuspid” do not appear in appellant’s com-j plaint. It may well be that a fractured bicuspid was the reason for the change of the implant. However, there is nothing in this record that remotely suggests that relationship. Because Dr. Massad’s affidavit speaks entirely in terms of available treatment for a fractured bicuspid, it is insufficient to withstand a motion for summary judgment on this complaint. In addition, Dr. Massad’s affidavit is insufficient to withstand the summary judgment because it simply states that there is treatment available for a fractured bicuspid, but does not state that such treatment is the standard of care applicable to this case so as to contravene Dr. Matthews’s affidavit on this point.

Appellant’s fourth and final point for reversal is that expert testimony was not required in this case. Appellant argues that a fractured tooth is much like a fractured arm inasmuch as it is common knowledge that some form of treatment is available. It is well settled that a plaintiff must present expert testimony when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, when the applicable standard of care is not a matter of common knowledge, and when the jury must have the assistance of experts to decide the issue of negligence. Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987).

Appellant’s final argument is entirely without merit. First, as we have previously emphasized, appellant’s complaint does not allege that appellee was negligent in failing to treat a fractured tooth. Second, the argument assumes that simply because treatment is available for a medical injury, it follows that it is negligence for a medical care provider not to provide the treatment. That is not and has never been the law of medical malpractice. Rather, to sustain a claim for medical malpractice a plaintiff must prove, among other elements, the applicable standard of care and the defendant’s breach thereof. The standard of care applicable to a case is defined by statute as “the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality.” Ark. Code Ann. § 16-114-206(a)(l) (1987). The statute plainly requires more than simple proof that treatment is available. Third, the argument assumes that the implied connection between a fractured bicuspid and the need to change appellant’s dental implant is a matter of common knowledge. Suffice it to say that matters relating to the changing of dental implants and treatment of fractured teeth are not matters of common knowledge. Cf. Napier v. Northrum, 264 Ark. 406, 572 S.W.2d 153 (1978) (quoting Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970), and stating that matters of common knowledge include a surgeon’s failure to remove a sponge before closing an incision or to sterilize his instruments prior to operating).

Appellant raised an additional point in the introductory portion of his argument which is that the burden of showing entitlement to summary judgment required appellee to offer proof on the issue of proximate causation. To support this argument, appellant relies on a statement from Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994), citing Collyard v. American Home Assurance Co., 271 Ark. 228, 607 S.W.2d 666 (1980), that the moving party’s burden in a summary judgment proceeding cannot be shifted when there is no offer of proof on a controverted issue. Collyard was a slip and fall case in which the defendant’s motion for summary judgment was not supported by an affidavit or any evidence that the defendant was not negligent. In that respect, Collyard is distinguished from this case and is not controlling. See Cash v. Lim, 322 Ark. 359, 908 S.W.2d 655 (1995) (explaining that Collyard holds when the proof supporting a motion for summary judgment does not establish a prima facie case, there is no duty on the opposing party to meet proof with proof). In this case, appellee’s motion for summary judgment was supported by affidavit revealing that appellant could not prove two essential elements of his claim. Appellee met his burden of proving a prima facie case for summary judgment by showing that appellant had no expert to testify to the applicable standard of care and breach by appellee. Thus, the burden shifted to appellant to show that a disputed issue of fact existed as to those two elements. Appellant’s failure to do so excused the need for appellee to show a lack of proof on the element of proximate causation.

On appeal, we need only decide if the granting of summary judgment was appropriate based on whether the evidence presented left a material question of fact unanswered. Reagan, 305 Ark. 77, 805 S.W.2d 636. The burden of proving there is no genuine issue of material fact is upon the moving party, and all proof submitted is viewed favorably to the opposing party, with all doubts and inferences resolved in the favor of the opposing party. Brunt, 318 Ark. 427, 885 S.W.2d 894. Once the moving party makes a prima facie showing of entitlement to summary judgment, the opposing party must meet that proof with proof that a genuine issue of material fact exists. Reagan, 305 Ark. 77, 805 S.W.2d 636.

In Reagan, this court effectively held that, when expert testimony is required for proof of a plaintiff’s claim for medical malpractice, and the defendant demonstrates the plaintiff’s failure to produce the requisite expert testimony, then the defendant has demonstrated that no genuine issues of material fact exist for presentation to a jury and is therefore entitled to summary judgment as a matter of law. On the record before us, appellee has demonstrated that no material issues of disputed fact exist and that he is entitled to summary judgment as a matter of law. Accordingly, we affirm the granting of summary judgment.

Roaf, J., not participating.


author: Donald L. Corbin, Justice. Tom Glaze, Justice,

text:
    Alan WILLETT v. STATE of Arkansas
    CR 94-322
    911 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered December 4, 1995

      William M. Pearson, Johnson County Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Senior Appellate Advocate, for appellee.
   Donald L. Corbin, Justice.

Appellant, Alan Willett, appeals the judgment of the Johnson County Circuit Court convicting him of two counts of capital murder and two counts of attempted capital murder. Appellant was tried by a jury and received two sentences of death by lethal injection and two sentences of thirty years in prison, all of which were to run consecutively. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant asserts nine points for reversal. We affirm the judgments of conviction for capital murder, but hold there was reversible error in the penalty phase of the bifurcated trial and remand to the trial court for resentencing pursuant to Ark. Code Ann. § 5-4-616 (Repl. 1993).

Appellant does not challenge the sufficiency of the evidence, so there is no need to recite the evidence in detail. All charges against appellant were the result of a single incident occurring at approximately 5:00 a.m. on September 14, 1993, when, apparently in anticipation of the possibility that his three minor children and mentally handicapped adult brother would be removed from his custody by the Department of Human Services, appellant attempted to kill them and himself in their home. Appellant beat the heads of his children and brother with an eight-pound iron window weight, and cut his own wrists and neck with a sharp object. Appellant succeeded in killing his thirteen-year-old son, Eric, and his brother, Roger Willett. Appellant’s then seventeen-year-old daughter, Ruby, and then six-year-old son, Johnny, survived their injuries when Ruby escaped appellant’s attention, grabbed Johnny, and went to a neighbor, who was an auxiliary deputy, for help. The neighbor, Donald Bradley, and a Johnson County Sheriff’s Deputy, Robert Thompson, found appellant at the crime scene. Appellant was hospitalized thereafter, where he confessed to the murders and attempted murders.

Of his nine points for reversal, four are based on alleged errors that occurred during the guilt phase of the trial, two are based on alleged errors in the penalty phase, and three are constitutional challenges to our death penalty statutes. We address the four points pertaining to the guilt phase first.

Appellant’s first assignment of error in the guilt phase is the admission of his confession. Appellant contends his uncounseled video-taped confession should not have been admitted into evidence because he gave it after he had invoked his right to counsel. The trial court held a hearing on appellant’s motion to suppress the confession and later denied the motion, ruling that appellant had been advised of his rights and the confession was voluntary. At trial, the state introduced appellant’s confession into evidence during the testimony of Dan Short of the Arkansas State Police Criminal Investigation Division.

This court has previously stated that, after invoking the right to remain silent or the right to counsel, an accused in custody may change his mind, initiate further communication with law enforcement officials and waive those rights. Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988) (citing Edwards v. Arizona, 451 U.S. 477 (1981) and Michigan v. Jackson, 475 U.S. 625 (1986)); Coble v. State, 274 Ark. 134, 624 S.W.2d 421, cert. denied, 456 U.S. 1008 (1981). The admissibility of statements obtained after a person in custody has requested an attorney or decided to remain silent depends upon whether the accused knowingly and intelligently waived the right or rights he had invoked, whether his right to cut off questioning was scrupulously honored, and whether it is the accused who initiates the further communications with law enforcement officials. Id. On appeal, we determine whether such initiation and waiver has occurred from the totality of the circumstances, viewing the evidence in the light most favorable to the state. Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994). We will not reverse the trial court’s determination unless it is clearly erroneous. Id.

There is no doubt appellant invoked his right to counsel while in police custody at approximately 10:00 a.m. on September 15, 1993 when Johnson County Sheriff Charles Nicklas and Investigator Short visited appellant in the hospital. Both law enforcement officials testified at the suppression hearing that they advised appellant of his Miranda rights, and that when they presented appellant with a waiver of rights form for his signature, appellant wrote on the signature line, “I want a lawer [sic] first.” Both officials testified they did not ask any further questions of appellant.

Appellant does not dispute that, on the following day, September 16, he gave the prosecuting attorney’s business card to a nurse and asked her to call the prosecuting attorney. The nurse, Sue McCarley, testified at the hearing that she could not reach the prosecutor and upon informing appellant of such, he asked to speak with a deputy. Nurse McCarley stated appellant knew what he was doing when he asked her to contact the authorities.

Sheriff Nicklas and Investigator Short both testified that they, together with the prosecutor, returned to appellant’s hospital room on September 16. At that time, appellant signed a written waiver of his rights to remain silent and to counsel. He also signed a written statement acknowledging that he asked the hospital to contact the law enforcement officials, that he initiated the contact with the officials, that he desired to give a statement to them, and that his decision to do so was voluntary. Investigator Short then video-taped appellant’s confession, wherein appellant admitted striking all four victims in their heads with the window weight and intended to kill them and himself.

John Anderson, a licensed psychologist from the Division of Mental Health Services, testified at the suppression hearing that he had examined appellant and watched the video-taped confession. He opined that appellant was of average intelligence and that he saw nothing to indicate appellant acted in any way other than voluntarily when he confessed.

Viewing the foregoing evidence in the light most favorable to the state, it is clear that appellant initiated the contact with law enforcement officials by asking the nurse to call them. It is equally clear that he subsequently and voluntarily waived his rights and gave a confession. He signed the waiver form and, as the trial court observed, his actions and answers to questions indicated that he was acting voluntarily. Considering the totality of the circumstances, we cannot say the trial court’s ruling admitting the confession into evidence is clearly erroneous.

On appeal, appellant also cites Metcalf v. State, 284 Ark. 223, 681 S.W.2d 344 (1984), and contends the impetus of his contact with police on September 16 was the prosecutor’s action in leaving his business card with appellant. This argument, together with the argument that appellant was denied his right to counsel during an appearance that was conducted by the municipal judge in appellant’s hospital room on the evening of September 15, were not raised below. We do not address arguments raised for the first time on appeal. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). Even constitutional arguments are waived on appeal when not raised below. Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).

Appellant’s second and third assignments of error in the guilt phase are the admission into evidence of four photographs taken at the crime scene and during the two autopsies. He argues the photographs were cumulative of other photographs and highly prejudicial.

Even if photographs are inflammatory or prejudicial in the sense that they show human gore repulsive to the jurors, they are nevertheless admissible within the trial court’s discretion if they help the jury understand the accompanying testimony. Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987). If a photograph serves no valid purpose and only inflames the jury, it is inadmissible. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852 (1980). However, the mere fact that a photograph is inflammatory or cumulative is not, standing alone, sufficient reason to exclude it. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994).

Specifically, appellant challenges the admission of State’s Exhibits 4, 57, 60 and 63. State’s Exhibit 4 is taken from the rear view and shows the body of Eric Willett lying in a large pool of blood on the floor of the Willett residence. Appellant objected on the basis that the photograph was cumulative of State’s Exhibits 1 and 2. State’s Exhibit 1 is a close-up photograph of Eric’s body taken from the front view. State’s Exhibit 2 is a photograph of the window weight lying on the floor in close proximity to Eric’s head. State’s Exhibit 4 was admitted as Deputy Thompson testified to what he saw as he entered the Willett residence and proceeded down the hall. Deputy Thompson stated he stepped over Eric’s body, proceeded down the hallway, and found Roger lying in the hallway moaning and kicking. Later, according to Deputy Thompson, he went down the hallway again to bring appellant out of the bathroom where he remained behind a closed door. The trial court ruled State’s Exhibit 4 would be admitted because, unlike State’s Exhibits 1 and 2, it showed the hallway of the residence. We conclude that State’s Exhibit 4 helped the jury understand Deputy Thompson’s testimony of the crime scene and that it had probative value that was not cumulative of other photographs. Thus, although the photograph was gruesome, we find no abuse of discretion in admitting it.

State’s Exhibits 57 and 60 are autopsy photographs of Roger’s head showing the top and rear views, respectively. The two challenged photographs showed that Roger was struck on the back and side of the head numerous times. Other autopsy photographs of Roger’s head injuries were also admitted. However, there is no duplication. State’s Exhibits 57 and 60 served to help the jury understand the nature and extent of the fatal wounds and the medical examiner’s testimony that Roger suffered five blows to the head. Exhibit 60 also showed the secondary injuries, bruises on the back of the head, caused from the primary blows to the head. We cannot say the trial court abused its discretion in this regard.

State’s Exhibit 63, an autopsy photograph of Eric taken from the front view after the body was cleaned of dried blood, clearly shows injuries to Eric’s eye and shoulder. Other autopsy photographs of Eric that were admitted show the fatal blows to the back of the head, but they did not show clearly the injuries to the eye and shoulder because the body had not yet been cleaned of blood. Thus, Exhibit 63 was helpful to understand the testimony that Eric suffered blunt-force injuries to the front of his head and elsewhere on his body in addition to the two fatal blows to the back of his head. Therefore, we find no abuse of discretion in admitting State’s Exhibit 63.

This court stated in Weger that a gruesome photograph is admissible if, among other possibilities, it helps prove a necessary element of the case. To obtain the two convictions for capital murder, the state bore the burden of proving that appellant murdered Eric “[u]nder circumstances manifesting extreme indifference to the value of human life” and that he murdered Roger “[w]ith the premeditated and deliberated purpose” of causing his death. Ark. Code Ann. § 5-10-101(a)(4), (a)(9) (Repl. 1993). All four of the challenged photographs were probative of the foregoing elements. In addition, they specifically refuted that part of appellant’s confession that he did not want his victims to suffer.

Appellant’s fourth assignment of error in the guilt phase is the trial court’s ruling that certain portions of appellant’s confession be excised before admission into evidence. The trial court granted the state’s motion in limine and, because appellant was not claiming the defense of mental disease or defect, excluded the following statements from appellant’s confession:

[I] feel like I wasn’t sane at the time. . . .
[B]eing sane or insane
[I] was so insane
[I] do believe I wasn’t sane that night, and I believe I wasn’t sane ....

The trial court reasoned that because appellant was not asserting the defense of mental disease or defect, any references to appellant’s sanity or insanity would only serve to confuse the jury. Appellant argues that the exclusion of these phrases denied the jury the full import and meaning of his own words, that is, a possible indication that he had remorse for his actions or corroboration of other testimony that he suffered from extreme emotional disturbance.

The decision to delete the portions of appellant’s confession was an evidentiary ruling within the trial court’s broad discretion, which we will not reverse unless the trial court manifestly abused its discretion. Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994). Here, the trial court specifically stated that appellant would be allowed to present those portions of his confession relevant to his claim of extreme emotional disturbance. Thus, the trial court carefully concluded that only the references to “sanity” or “insanity” be deleted since appellant was not claiming mental disease or defect. We agree that those references would have been confusing to the jury and cannot say the trial court manifestly abused its discretion in this regard.

Two points are important to our conclusion that the trial court did not abuse its discretion in omitting the above-quoted phrases from appellant’s confession. First, appellant does not argue that his confession should have been admitted intact. Second, in addition to the challenged excisions, upon request by appellant and agreement with the state, the trial court excised certain other phrases from the confession, including language that appellant intended to plead guilty by reason of insanity. The trial court’s careful consideration of all the requested omissions and its consistent exclusion of all references to the words “sane” or “insane,” including appellant’s request to omit the reference to appellant’s intention to plead guilty by reason of insanity, prevent us from finding a manifest abuse of discretion.

Accordingly, we affirm the judgments of conviction for capital murder and attempted capital murder reached in the guilt phase of the trial.

We now consider the two assignments of error involving the penalty phase. Appellant asserts two points of error involving aggravating and mitigating circumstances. First, he challenges the sufficiency of the evidence to support the finding of the aggravating circumstance. Second, he challenges the sufficiency of the evidence to support the finding that the aggravating circumstance substantially outweighed the mitigating circumstances. These two arguments and our resolution of them apply to both death sentence verdicts because the verdict forms and the jury’s actions with respect to those forms were identical for both counts of capital murder.

Appellant argues the trial court erred in failing to set aside the death sentence verdicts due to insufficient evidence of the sole aggravating circumstance found by the jury — that the murders were committed in an “especially cruel” or “especially depraved” manner as those terms are defined in Ark. Code Ann. § 5-4-604(8) (Repl. 1993).

The state contends this argument is procedurally barred from appellate review because it was not argued to the trial court in a timely manner or in a sufficiently specific manner. The state relies on former A.R.Cr.R Rule 36.21(b) and A.R.Cr.P. Rule 33.1 (per curiam July 10, 1995) concerning motions for directed verdict and challenges to the sufficiency of the evidence. Specifically, the state contends appellant should have objected to the submission of the aggravating circumstance to the jury at the close of the state’s case during the penalty phase, and again at the close of all the evidence during the penalty phase. In the spirit of Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), the state further contends appellant was required to apprise the trial court of the specific element of the aggravating circumstance that was allegedly missing so that the state could be allowed an opportunity to supply the missing evidence.

The state’s only authority for this argument is a capital murder case in which this court applied the contemporaneous objection rule during the guilt phase of the trial. Johnson v. State, 308 Ark. 7, 22, 823 S.W.2d 800, 808, cert. denied, 112 S. Ct. 3043 (1992). The state does not cite us to any authority, nor are we independently aware of any, in which this court has applied our rules on motions for directed verdict made in the guilt phase of a criminal case to the penalty phase of a capital case. Therefore, this issue is one of first impression for this court.

Regarding the sufficiency of the evidence of aggravating or mitigating circumstances, this court has stated:

We think it a better practice, and less confusing to the jury, for the circuit judge to omit from submission any aggravating or mitigating circumstances that are completely unsupported by any evidence, and we take this opportunity to direct the circuit judges of Arkansas to hereafter allow this alternate procedure. If there is any evidence of the aggravating or mitigating circumstances, however slight, the matter should be submitted to the jury. Of course, counsel may object to the determination of the trial court the same as they may object to any other form of verdict.
[Wje do not require the same degree of proof to sustain a jury finding that an aggravating or mitigating circumstance exists as we would require to sustain a conviction if that circumstance was a separate crime.
It is a matter of judgment whether the facts support the findings of the jury of aggravating and mitigating circumstances, but we will not substitute our judgment for the judgment of the jury that heard the evidence if there is a reasonable and understandable application of the facts to the statutory circumstances.

Miller v. State, 269 Ark. 341, 354-55, 605 S.W.2d 430, 438-39 (1980). In applying the foregoing rule several times, this court has clearly indicated that the defendant objected below. See, e.g., Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), cert. denied, 499 U.S. 913 (1991) (indicating the appellant moved to strike one of the aggravating circumstances), and Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981), cert. denied, 459 U.S. 1042 (1982) (stating the trial court allowed the jury to consider aggravating circumstance over the appellant’s objection).

Although we have never expressly applied our rules on motions for directed verdict made in the guilt phase to the penalty phase of a bifurcated trial of capital murder, we have consistently required a defendant to object to the death sentence verdict in the same manner as any other verdict. Miller, 269 Ark. 341, 605 S.W.2d 430. Therefore, because appellant did not move for a directed verdict or object to the submission of the aggravating circumstance to the jury until after the jury returned the verdict, we are persuaded by the state’s argument that this point is procedurally barred and do not consider the merits of appellant’s argument.

For his second assignment of error in the penalty phase, appellant contends the trial court erred in refusing to set aside the death sentence verdicts based upon insufficient evidence that the aggravating circumstance outweighed the mitigating circumstances beyond a reasonable doubt. Appellant’s support of this argument is three-fold. First, he points to his medical history. Second, he claims the jury was confused during deliberation of the penalty phase. Third, he claims the jury incorrectly completed the verdict form pertaining to mitigating circumstances entitled “AMCI Form 2 — Mitigating Circumstances.”

As for appellant’s medical history, he produced evidence that, after using the drug Valium for the previous ten years, he received his last dosage approximately one month before the murders. Appellant also produced evidence that he suffered from several psychiatric disorders, that his Valium therapy had been mismanaged, and that a combination of these factors played a role in his conduct on the night of the crimes. Appellant also introduced an expert opinion that he suffered from a mental disease or defect that impaired his ability to appreciate the criminality of his conduct. Appellant argues this evidence was unrebutted by the state.

The state correctly contends this was a credibility issue for the jury to resolve. The jury could have discounted the medical history evidence, or while accepting its accuracy, found it immaterial. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). Moreover, appellant’s argument that the jurors completely ignored proof of the mitigating circumstances is disproved by the fact that, with respect to Form 2, at least one of the jurors concluded the medical history was indeed a mitigating circumstance, though not all of the jurors agreed.

As for the jury’s confusion, appellant relies heavily on the fact that, during deliberation in the sentencing phase, the jury asked questions concerning the procedure they were to follow in completing the death sentence verdict forms. The jurors were properly called into open court for the trial court to address their questions. The following occurred:

BY THE COURT: Ladies and Gentlemen, the Bailiff has given me a note containing a couple of questions that you have. Let me go over it with you. The first part, if you check one aggravating circumstance, do you have the privilege to check mitigating circumstances; and that’s yes.
Then you have, or, is Mr. Willett given the death sentence. That’s no.
Then the next sentence can we say there are aggravating and mitigating circumstances; and that’s yes.
If you look at that Form one, that’s your aggravating circumstance and Form two are mitigating and you go through those and if they exist, then you check it. Form three is kind of your conclusions; and I think you have to make three specific findings or more on there. It’s just like the way that says and then the fourth is your verdict. I think if you get those forms and read this, it pretty well — I notice down here you say, don’t fully understand and would like to hear the instructions one more time. Do you want me to read this or is there something — I want to try to help you understand this, if I can.
BY A JUROR: Can I ask you a question?
BY THE COURT: Let me hear it.
BY THE JUROR: Well, like on the last page do we all have to unanimously agree?
BY THE COURT: The fourth one is the verdict, which is the two choices that you have. Whichever choice that you make, all twelve of you sign it.
BY A JUROR: But, like on all the questions concerning —
BY THE COURT: Just the Foreman. If you notice on Form one and maybe Form two and three, it just has “Foreman.” That’s your Foreman. The verdict form, that’s Form four, the final decision of what you do, all twelve of you sign that.
BY A JUROR: Does it have to be unanimous? Does all twelve have to agree on the same thing?
BY THE COURT: Right. The first three forms — all four forms are unanimous. The first three forms just require your Foreman’s signature; but the verdict form, when you select your punishment, that’s unanimous. It’s unanimous and all twelve of you have to sign your name. Have you got it? All right. You can return with the Bailiff.

Appellant contends that the jury’s confusion was not resolved by the trial court’s answers to their questions and that their confusion is manifested in the conflicting manner in which they completed Form 2. In Subsection A of Form 2, the jurors unanimously found the following mitigating circumstances probably existed at the time of the murder: that appellant had no prior history of criminal conduct, that appellant had been a model prisoner, and that appellant had cooperated with police by voluntarily giving a statement about the crimes at issue. However, in subsection C of Form 2, the jurors found there was evidence of the same three circumstances, but unanimously agreed that they were not mitigating circumstances. Essentially, appellant contends that subsections A and C are mutually exclusive.

The state agrees that Form 2 seems to have been filled out incorrectly. However, the state contends appellant suffered no prejudice because the jurors appeared in open court and orally confirmed their death-sentence verdicts.

The model instruction that accompanies the capital murder Forms, AMCI 2d 1008, states that unlike an aggravating circumstance, the jury is not required to be convinced of a mitigating circumstance beyond a reasonable doubt; rather, a mitigating circumstance is shown if the jury believes from the evidence that it probably existed. We therefore agree that subsections A and C of Form 2 are mutually exclusive. Because the jury was instructed in accordance with AMCI 2d 1008 in this case, there can be no doubt that they completed Form 2 incorrectly when they checked the same three circumstances in subsections A and C.

We are somewhat inclined to conclude that the jury’s error in completing Form 2 was harmless for three reasons. First, in “Form 3 — Conclusions,” the verdict form pertaining to the weighing of aggravating and mitigating circumstances, the jurors concluded that the aggravating circumstance outweighed beyond a reasonable doubt any mitigating circumstance found by any juror to exist. Second, also in Form 3, the jury concluded the aggravating circumstance justified beyond a reasonable doubt the death sentence. Third, as the state contends, the jurors confirmed in open court that the two verdicts of death by lethal injection were indeed their verdicts. Therefore, even if we assume the jury concluded in Form 2 that the three mitigating circumstances probably existed, we could conclude, on the basis of Form 3, that they did not outweigh the aggravating circumstance. However, we are not aware of any authority that permits the application of a harmless error analysis to mitigating circumstances. See, Shipper v. South Carolina, 476 U.S. 1 (1986) (indicating that errors relating to mitigating circumstances are prejudicial under any standard). Moreover, this court can perform the harmless error analysis in Ark. Code Ann. § 5-4-603(d) (Repl. 1993) only if the jury found no mitigating circumstances. Greene, 317 Ark. 350, 878 S.W.2d 384. On this record, it is impossible to discern whether the jury found any mitigating circumstances. Therefore, we reverse the judgments of sentence to death and remand for resentencing.

We turn now to appellant’s final three points for reversal, which are three constitutional challenges to our death penalty statutes. In the first of these, appellant contends the Arkansas capital murder scheme does not allow a jury to show mercy to a particular defendant and therefore unconstitutionally mandates the death sentence. This court has considered and rejected this argument in several cases. E.g., Dansby v. State, 319 Ark. 506, 515-16, 893 S.W.2d 331, 336-37 (1995) (quoting Johnson, 308 Ark. at 17-18, 823 S.W.2d at 806). We reject the argument again in this case.

Next, appellant contends the statutory definition of the aggravating circumstance “especially cruel or depraved” in section 5-4-604(8) is void for vagueness on its face and as applied to him. He claims the definitions do not provide guidance to channel the jurors’ discretion with clear and objective standards.

The General Assembly rewrote this aggravating circumstance in Act 683 of 1991 after this court declared in Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988), that its statutory predecessor was unconstitutional in violation of the Eighth and Fourteenth Amendments to the federal constitution. The 1991 statutory amendment includes language substantially similar, if not identical, to language upheld as constitutional by the United States Supreme Court in Walton v. Arizona, 497 U.S. 639 (1990). Greene, 317 Ark. 350, 878 S.W.2d 384. For the reasons stated by the Supreme Court in Walton, our statute is therefore not void on its face.

In the instant case, the jury was instructed on the statutory definitions of “especially cruel” and “especially depraved.” In fact, the definitions appeared on the face of “Form 1 —Aggravating Circumstances” the verdict form pertaining to aggravating circumstances. Appellant’s argument that the definitions are unconstitutional as applied to him does not rest upon an independent ground, but rests upon a finding that the definitions are void on their faces. Given the limitations of appellant’s argument, and given our conclusion that the definitions are not void on their faces, we hold that this statutory aggravating circumstance was not unconstitutional as applied to appellant.

Finally, appellant argues the capital murder statute under which he was charged, section 5-10- 101(a)(4), is unconstitutional under the federal Eighth and Fourteenth Amendments because it fails to adequately narrow the class of persons eligible for the death penalty and permits arbitrary prosecutions. This court has previously considered and rejected this argument. E.g., Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Greene, 317 Ark. 350, 878 S.W.2d 384; Cox v. State, 313 Ark. 184, 195-96, 853 S.W.2d 266, 271-72 (1993) (citing Johnson, 308 Ark. at 16-17, 823 S.W.2d at 805-06). We do so again in this case.

For the reasons stated in Williams v. State, 321 Ark. 344, 896 S.W.2d 874 (1995), we no longer conduct a proportionality review of the death sentence. However, our review on appeal may include a review of the aggravating and mitigating circumstances presented to the jury and a harmless error review in accordance with section 5-4-603(d). We conclude no erroneous finding of any aggravating circumstance was made by the jury. Therefore, we do not conduct a harmless error review under section 5-4-603(d). Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995). In addition, as we previously concluded, we are not able to discern whether the jury found mitigating circumstances. See, Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995), and Greene, 317 Ark. 350, 878 S.W.2d 384 (stating that when mitigating circumstances are found, the statute does not authorize a harmless error review). In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for prejudicial errors objected to by appellant but not argued on appeal, and no such errors were found in this case.

The judgments of conviction are affirmed, as are the judgments of sentence on the attempted charges. The judgments of sentence to death by lethal injection are reversed, and the case is remanded to the trial court for resentencing in accordance with section 5-4-616.

Glaze, J., dissents in part.

Tom Glaze, Justice,

dissenting in part.

I respectfully dissent. The jury, in my view, was well aware of the pertinent circumstances presented to it when deciding Alan Willett’s sentence, and after duly hearing and considering the evidence bearing on those circumstances, the jury concluded the aggravating circumstances justified beyond a reasonable doubt a sentence of death. For the readers’ benefit and understanding of this sentencing issue, I attach to my opinion the forms the jury utilized and checked when arriving at its death penalty decision. Those forms are identical to the ones set out in AMCI2d 1008 at pages 171 through 185.

As instructed by the trial court, the jury first considered Form 1 which set forth a list of possible aggravating circumstances, and the jury unanimously found one of them existed, namely, Willett’s murders were committed in an especially cruel manner. One aggravating circumstance is enough to support a jury’s imposition of the death penalty. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983), cert, denied, 465 U.S. 1051 (1984).

Also, following the trial court’s instructions, the jury proceeded to Form 2, which contains four sections, A, B, C and D, which required the jury to determine whether mitigating circumstances were shown to exist. Sections A, C and D are relevant here. Under Section A, the jury unanimously found the evidence showed the following three mitigating circumstances:

(/) Before the 14th of September, 1993 [the date of the murders], Alan Willett had no history of criminal conduct.

(/) After the 14th of September, 1993, Alan Willett has been a model prisoner.

(S) Alan Willett, after the 14th of September, 1993, cooperated with law enforcement in that he voluntarily gave a statement as to what happened on the 14th of September, 1993.

Under Section C of Form 2, the jury then unanimously checked the same three circumstances listed in Section A, stating they were not mitigating. And the jury then left unchecked Section D which reads as follows:

( ) No evidence of a mitigating circumstance was presented by either party during any portion of the trial (check only if no evidence was presented. If evidence was presented but the jury agreed that it was not mitigating, check Section C).

From the above forms, one vital point is clear — the jury agreed that evidence of the same three circumstances listed in sections A and C had been shown. The majority opinion, however, suggests it is impossible to discern whether the jury found any mitigating circumstances because Section C refers to the three circumstances as “not mitigating” while Section A referred to them as “mitigating.”

The majority opinion, in my view, overlooks the jurors’ obvious consideration of the evidence and circumstances it rejected when imposing the death sentence, and it totally ignores what is meant by mitigating circumstances. Mitigating circumstances commonly represent evidence which a jury may consider as extenuating or reducing the degree of moral culpability. See Black’s Law Dictionary 1002 (6th ed. 1990). Here, the jury’s checked forms acknowledged there was evidence showing Willett (1) had no prior criminal history, (2) had been a model prisoner and (3) had voluntarily confessed to the murders; nonetheless the jury concluded those circumstances were insufficient to reduce his sentence to life without parole. Whether the circumstances checked in Form 2, Section C, were mislabeled “not mitigating” is of little consequence, so long as the penalty forms reflect the jurors considered the evidence bearing on Willett’s favorable conduct, but they decided those circumstances did not warrant reducing Willett’s punishment.

While Form 2 should be slightly edited so as to provide some additional clarity to the jury when imposing sentencing, the majority court is far off the mark in suggesting the jury here was somehow confused when imposing the death penalty. Again, the sentencing forms here reveal with convincing clarity that the jury heard and considered evidence bearing on Willett’s favorable conduct exhibited before and after the murders he committed, but it still unanimously decided that Willett should be put to death. No amount of this court’s reshuffling and reinterpreting the language employed in the jury forms in this case can serve to muddle or eviscerate the jury’s obvious consideration of the relevant evidence when imposing the death penalty.

I would affirm both the conviction and sentencing judgments.

( ) Before the 14th of September, 1993, Allen Willet helped coach little league baseball and, in particular, helped a brain-damaged child. ( ) Allen Willet, after the 14th of September, 1993, cooperated with law enforcement in that he voluntarily gave a statement as to what happened on the 14th of September, 1993. ( ) Allen Willet can lead a productive life in prison as an inmate without the possibility of parole. ( yj) The capital murder occurred while the defendant was in an agitated state which was the result of the mismanagement of his valium therapy. ( ) Other: Specify in writing. ______ C. (>/) There was evidence of the following circumstances, but the jury unanimously agreed that they were not mitigating circumstances. (. ) The capital murder was committed while Allen Willet was under extreme emotional disturbance. ( ) The capital murder was committed while Allen Willet was acting under unusual pressures. { ) The capital murder was committed" while the capacity of Allen Willet to appreciate the wrongfulness of his conduct was impaired as a result of mental disease or defect. (v/) Before the 14th of September, 1993, Allen Willet had no history of criminal conduct. (4 ) After the 14th of September, 1993, Allen Willet has been a model prisoner.

       The listed circumstances in the forms were modified to reflect the facts in this case.


author: Robert L. Brown, Justice.

text:
    Neal BYRD and Wanda Byrd v. Glenn DARK and State Farm Mutual Insurance Company
    95-164
    911 S.W.2d 572
    Supreme Court of Arkansas
    Opinion delivered December 4, 1995

      Epley, Epley & France, Ltd., by: Lewis E. Epley, Jr., and Tim S. Parker, for appellants.

      Matthews, Sanders, & Sayes, by: Margaret M. Newton and Gail O. Matthews, for appellees State Farm Mutual Ins. Co.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Brian Allen Brown and Richard N. Watts, for appellee Glenn Dark.
   Robert L. Brown, Justice.

The issue in this appeal is whether the circuit court erred in setting aside only the damages awarded as part of a default judgment. Appellants Neal Byrd and Wanda Byrd assert that the circuit court did err for multiple reasons, including lack of authority under Ark. R. Civ. R 55(c) to rehear the issue of damages, while leaving the default on the issue of liability intact. We agree that the court did not have the authority to set aside the damages award under Rule 55(c), and we reverse and remand.

The facts in this case are gleaned from the complaint filed by the Byrds against appellee Glenn Dark. The complaint alleges that on or about June 15, 1992, Dark, a resident of the State of Mississippi, was driving his pickup truck and hit Neal Byrd’s car from the rear. Byrd was stopped at a stop sign at the time in West Helena. On August 31, 1993, the Byrds filed suit against Dark for personal injuries arising out of the accident. The complaint prayed for $300,000 for Neal Byrd’s compensatory damages and $50,000 for Wanda Byrd’s loss of consortium. Summons was issued to Dark that same date. Dark was served with summons, the complaint, a request for production of documents, and interrogatories on September 14, 1993 . No answer was filed by Dark.

On January 20, 1994, a hearing was held before the circuit court on the damages to be awarded as a result of the default. Dark did not appear. Neal Byrd testified about his injuries, both those that were preexisting and those due to the accident, and his medical record totalling some 300 pages was introduced into evidence. Most of the medical record had nothing to do with the car accident. At the hearing, counsel for the Byrds also introduced a letter from State Farm offering to settle for $1,500 and remarked that State Farm withdrew the offer after the lawsuit was filed. Counsel for the Byrds further advised the court that Neal Byrd’s medical expenses were in the range of $5,000 or $6,000. At the conclusion of the hearing, the circuit court entered a default judgment in favor of the Byrds with damages of $200,000 for medical expenses and pain and suffering and $25,000 for loss of consortium.

On March 23, 1994, counsel for the Byrds took Dark’s deposition. Dark admitted being served with the lawsuit but stated that he turned the papers over to State Farm’s agent in Clarksdale, Mississippi about a week after receipt. On March 28, 1994, counsel for the Byrds wrote State Farm a letter. He related in that letter that he had spoken to Dark and that Dark told him that he had apprised State Farm of the lawsuit in time to answer. Counsel made demand on State Farm to pay the $225,000 judgment. That letter was received by State Farm on March 30, 1994.

On April 22, 1994, Dark filed a motion to set aside the default judgment on grounds that the damages awarded were excessive. He requested a new hearing on damages. On July 11, 1994, State Farm moved to intervene in the matter. It alleged that default judgment was improper because counsel for the Byrds had misstated the facts surrounding Neal Byrd’s injury to the circuit court at the January 20, 1994, hearing. The motion to intervene was granted. On September 22, 1994, Dark supplemented his motion to set aside the default judgment and alleged that the default judgment had been entered based on mistake, fraud, or misrepresentation.

On January 30, 1995, the circuit court entered its order setting aside the award of damages and made the following findings of fact:

1. That the default judgment as to liability is not an issue and the judgment for the plaintiff on the issue of liability will stand regardless of the Court’s decision on the issue of damages.
2. The Court finds that the attorney for the plaintiff did not mislead the Court in his presentation of plaintiff’s proof for damages.
3. The Court finds that the Court should have given the evidence presented a much more extensive review due to the nature of the proof — that being the fact that plaintiff Neal Byrd, having had other previous injuries and the medical evidence being complicated by this fact.
4. The Court finds that upon a more complete and further review of the evidence herein that the evidence does not support the amount of the judgment and amounts to either a mistake or other reason justifying relief from the operation of the judgment in accordance with Arkansas Rule of Civil Procedure 55(c).
5. The Court finds that the defendant has shown a meritorious defense to the amount of the judgment in accordance with Rule 55(c).
For these reasons, the judgment is set aside and the Court will rehear and reconsider the amount of the damages.

The central question before this court on appeal is whether Rule 55(c) provides the legal basis for setting aside the damage award, but not the judgment on liability, because of mistake in setting the damages or insufficient evidence. Rule 55(c) reads:

(c) Setting Aside Default Judgments. The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud, misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action.-, however, if the judgment is void, no other defense to the action need be shown. (Emphasis ours.)

In Arkansas, a default judgment establishes liability but not the extent of damages. Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992); B&F Engineering v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992), quoting Howard Brill, Arkansas Law of Damages § 8-1 (2nd ed. 1990); Gardner v. Robinson, 42 Ark. App. 90, 854 S.W.2d 356 (1993). In Divelbliss, we discussed the propriety of the default and whether it should be set aside under Rule 55(c). We affirmed the trial court’s decision not to set the default aside. We then emphasized that in Arkansas, unlike some jurisdictions, a hearing is required after default to establish damages, and the plaintiff must introduce evidence to support damages. We further stated that notice to the defaulting defendant who has never entered an appearance is not required. See Ark. R. Civ. P. 55(b). Similarly, in Cotroneo we first analyzed whether the default judgment on liability was subject to being set aside under Rule 55(c) due to mistake, inadvertence, surprise, or excusable neglect. We held that it was not, and we then discussed the damages awarded under a standard apart from Rule 55(c). In both of these decisions, the damages were discussed following our conclusion that the default on liability should not be set aside under the criteria set out in Rule 55(c).

In the case before us, the circuit court used Rule 55(c) to vacate the damage award due to the court’s mistake in fixing damages. This runs contrary to our decisions involving Rule 55(c), since it was amended in 1990. See, e.g., Truhe v. Grimes, 318 Ark. 117, 884 S.W.2d 255 (1994); Maple Leaf Canvas v. Rogers, 311 Ark. 171, 842 S.W.2d 22 (1992); CMS Jonesboro Rehabilitation, Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 472 (1991). In each of these cases the issue was whether the default judgment on liability could be set aside because of mistake, inadvertence, surprise or excusable neglect on the part of the defendant — not the circuit court. Indeed, this court is aware of no authority supporting the proposition that a mistake of the circuit court is contemplated under Rule 55(c) as a basis for vacating a default judgment. We conclude that the circuit court erred in using Rule 55(c) as a vehicle to correct its perceived mistake in awarding excessive damages.

Furthermore, we do not read Rule 55(c) to authorize a court’s vacating a judgment for damages while the judgment on liability stands. Rule 55(c) refers to the cause of action brought and to a meritorious defense to that action. The “mistake” or “excusable neglect” contemplated under its terms refers to mistake or excusable neglect by the defendant in failing to respond to the lawsuit. It does not mean a mistake in the award of damages.

Dark, in his brief in this appeal, invokes a circuit court’s inherent power to order a remittitur when damages are excessive. This court has recognized an inherent power in the circuit court to reduce damage awards to conform to the established facts. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981); Dierks Lumber & Coal Co. v. Noles, 201 Ark. 1088, 148 S.W.2d 650 (1941); see also Dickson v. Delhi Seed Co., 26 Ark. App. 83, 760 S.W.2d 382 (1988). We have also recognized the inherent power of the circuit court to order a remittitur when the punitive damages awarded by a jury are grossly excessive or appear to be the result of passion or prejudice. See McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994) (remittitur reversed on punitive damages). However, we have not recognized this inherent power to extend to correcting a mistake in damages a year after the original judgment was entered. State Farm, in its brief, argues that it has presented a meritorious defense to the excessive damages under Rule 55(c). But Rule 55(c) speaks expressly in terms of a meritorious defense to the action. State Farm, accordingly, reads into the rule language that is simply not there. In sum, we construe Rule 55(c) to authorize the vacating of default judgments which embrace liability for the alleged cause of action. It does not permit a setting aside of the damage award when liability against the defendant remains fixed and is not in dispute.

There is, finally, the issue of two attorneys testifying as expert witnesses for Dark and State Farm in this case on the issue of the excessiveness of the damages awarded. The two attorneys were called as witnesses and gave their opinions with respect to the value of the Byrds’ case. We agree with the Byrds that this practice cannot be countenanced and must be discouraged. Attorneys are advocates and their individual experiences in the courtroom do not equip them to speculate on the excessiveness of damages in a particular case. That is a matter for the trier of fact to determine. Though we do not reverse this case based on this testimony by the attorneys, we will entertain this point as grounds for reversal in the future.

After briefs were filed in this matter, the Byrds filed a motion seeking to dismiss what they dubbed the appellees’ attempted cross appeal and seeking to strike the argument by State Farm and Dark that counsel for the Byrds had misrepresented Neal Byrd’s injuries at the hearing on damages. Sanctions were also requested. The Byrds contend that the circuit court found that there was no misrepresentation in its order and that Dark and State Farm did not cross appeal on this point. Though the Byrds are correct, we do not view the references in the appellees briefs as sufficiently egregious to warrant a dismissal, a striking, or sanctions. See, e.g., Purtle v. McAdams, 317 Ark. 499, 879 S.W.2d 401 (1994); Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992). The motion is denied.

We reverse the order of the circuit court vacating the damage award and calling for a rehearing on damages, and we remand for an order to be entered consistent with this opinion.

Reversed and remanded.

Glaze, J., not participating.