author: Steele Hays, Justice.

text:
    CITY OF FAYETTEVILLE, Arkansas v. Earnest STANBERRY and Carol Stanberry, Husband and Wife
    91-34
    807 S.W.2d 26
    Supreme Court of Arkansas
    Opinion delivered April 15, 1991
    [Rehearing denied May 6, 1991.]

      James N. McCord, for appellant.

      Jones & Hixon, by: Lewis D. Jones and Kenneth S. Hixon, for appellees.

      Newbern, J., not participating.

   Steele Hays, Justice.

This case comes to us from an inverse condemnation judgment against the City of Fayetteville, Arkansas. The City has appealed, challenging instructions to the jury and an award of prejudgment interest.

The dispute stems from the construction of a 24” sewer line on lands of Earnest and Carol Stanberry, appellees. The City obtained an easement from the Stanberrys in 1968. After construction of the line, raw sewage overflowed on appellees’ property. The overflows began in 1969 and continued periodically until the time of trial, with one particularly severe overflow in March 1984. The appellees contacted the City frequently and were assured the problem would be corrected, but the overflows continued.

In 1986 a request by the City for an additional sewer line across part of the appellees’ property was refused. On October 20, 1986, the City filed a suit for condemnation to build the additional line and the appellees filed their own suit against thé City some months later, alleging that the years of overflows and odor emanations from the sewer line constituted an unconstitutional taking of their property.

The two cases were consolidated for trial and on May 2, 1990, after three days of trial, the jury returned a verdict finding the City had unconstitutionally taken appellees property, damaging them by $260,000. The trial court awarded prejudgment interest at the rate of 7.5% fromFebruary 13,1987, the date suit was filed by appellees.

The City’s first assignment of error concerns the jury instructions. The following instructions by the City were refused by the trial court:

In order to prevail on their inverse condemnation claim against the City of Fayetteville, the Stanberrys must prove by a preponderance of the evidence that:
(1) The discharge of raw sewage from the Fayetteville sewer system was the proximate cause of a continuing trespass or nuisance which resulted in permanent damage to the Stanberry property, or
(2) Sewage odors from the Fayetteville sewer system caused the Stanberrys to suffer a direct, substantial injury, peculiar to them, and not suffered by the general public which has resulted in permanent damage to the Stanberry property.
If you find that the Stanberrys should prevail on their inverse condemnation claim, the measure of damages to which they are entitled is the difference between the fair market value of their property before and after the permanent damage.
Do you find from a preponderance of the evidence that the Stanberry property has been permanently damaged by raw sewage or sewage odors from the Fayetteville sewer system?
If your answer to Interrogatory Number 2 is ‘yes’, when did it become, or when should it have become, obvious to the Stanberrys, that the damage was permanent?
If your answer to Interrogatory Number 2 is ‘yes’, what do you find is the difference between the fair market value of the Stanberry property before and after the permanent damage?”

The following instructions were given:

In the inverse condemnation case filed by Earnest and Carol Stanberry against the City of Fayetteville, the Stanberrys have the burden of proving that their lands have been inversely condemned by the City of Fayetteville. They therefore have the burden of proving the following three essential propositions:
First, that the City of Fayetteville committed a continuing trespass or a continuing nuisance over a long period of time upon their lands which amounted to a taking of their property; and
Second, that such continuing trespass or continuing nuisance proximately caused a reduction in the value of the Stanberrys’ property; and,
Third, the amount of just compensation for the taking.
Do you find from a preponderance of the evidence that the Stanberrys have proven that their land has been inversely condemned by the City of Fayetteville in their inverse condemnation case?
If you answered Interrogatory Number 2, ‘yes’, what do you find to be the just compensation proven by Earnest and Carol Stanberry for the inverse condemnation of their land?
You are instructed that a taking occurs when there is a serious interruption of the common and necessary use of the property as to interfere with the rights of the owner.

It is apparent the City sought to accomplish two things by the proffered instruction — to lay the factual foundation for a statute of limitations defense, which we will address in a moment, and to establish that permanent damage is a prerequisite of continuing trespass or nuisance for a taking to occur, as opposed to a “serious interruption of the common and necessary use of the property as to interfere with the rights of the owner,” which was the standard in the trial court’s instruction. Thus, the City maintains, as it did before the trial court, that permanent damage is a necessary predicate for inverse condemnation. We disagree.

While it is true there must be some measure of substantiality for an injury to constitute a taking, we are not aware of, nor has appellant cited, any authority embracing permanency as an essential element of proof in inverse condemnation. See e.g., 26 Am. Jur. 2d Eminent Domain § 157, What Constitutes a Taking (and cases cited therein) (1966 and Supp. 1990). (Where a taking is alternatively described as damage that: will substantially oust the owner and deprive him of all beneficial enjoyment thereof; will substantially abridge the owner’s rights to such an extent as to deprive him of his right; will be an interference with or disturbance of property rights resulting in injuries which are not merely consequential or incidental; and is determined by the character of the invasion and not by the amount of damage resulting from it, as long as the damage is substantial).

The United States Supreme Court in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), recently held that “temporary” takings which deny landowners all use of their property are not different in kind from permanent takings. The Court noted, quoting from the dissent in San Diego Gas & Electric Co., 450 U.S. 659 (1981), that “[n]othing in the Just Compensation Clause suggests that ‘takings’ must be permanent or irrevocable.”

In a recent discussion of inverse condemnation in a similar context, this court stated that a taking occurs when a condemnor acts in a manner which substantially diminishes the value of a landowner’s land, making no reference to permanency. We also stated that “a continuing trespass or nuisance could ripen into inverse condemnation,” suggesting flexibility in the definition of taking. Robinson v. City of Ashdown, 301 Ark. 226, 230, 783 S.W.2d 53, 55 (1990). Here the trial court used a definition taken from Shellnut v. Arkansas State Game & Fish Commission, 222 Ark. 25, 258 S.W.2d 570 (1953), which was borrowed horn Pumpelly v. Green Bay Co., 13 Wall. (80 U.S.) 166 (1871), both “taking” cases.

In contrast, the City’s proffered instruction was not sanctioned by AMI, nor has the City provided other authority to sustain its own instruction or to discredit the court’s instruction. The City does cite City of Springdale v. Weathers, 241 Ark. 772, 410 S.W.2d 754 (1978), but that is of little help. Weathers was not an inverse condemnation suit and discussed only the issue of the statute of limitations for nuisance or negligence. The opinion does not address or discuss the elements of proof for an inverse condemnation suit.

The trial court in this case stated it was not required by law to give appellant’s instruction and the instruction could be confusing. The trial court was correct. When instructions are requested which do not conform to the Arkansas Model Jury Instructions (AMI) they should be given only when the trial judge finds the AMI instructions do not contain an essential instruction or do not accurately state the law applicable to the case. Newman v. Crawford Constr. Co., 303 Ark. 641, 799 S.W.2d 531 (1990). And if an instruction is offered by a party the trial court is not required to give it if the instruction needs explanation, modification or qualification. Pineview Farms Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989). Where a party requests an erroneous instruction, he may not complain of failure to charge on the subject. Williams v. First Security Bank of Searcy, 293 Ark. 388, 738 S.W.2d 99 (1987).

While we need not provide a definitive statement of what constitutes a taking, we will say it does not require permanency nor an irrevocable injury, as urged by the City. See First English Evangelical Lutheran Church v. County of Los Angeles, supra. The trial court was correct.

The City’s instruction, as noted previously, also implicated the statute of limitations by asking 1) if the jury found the property had been permanently damaged, and 2) if so, when was it obvious the damage was permanent. The trial court refused these interrogatories also, and the City argues it was thereby deprived of its statute of limitations defense. Again, we disagree.

As we have seen, permanency was not required and, for the same reasons, permanency was not a necessary predicate for a statute of limitations defense. Nor do we agree that the City was deprived of a statute of limitations defense. The trial court refused only the limitation instruction based on permanency. Nothing prevented the City from requesting a statute of limitation instruction based on the instructions that were given. Moreover, the City has not demonstrated prejudice, as it does not argue that the statute of limitations would have in fact barred appellees’ claim due to lack of permanent damage or due to a running of the limitation period after permanent damage had occurred.

The City also challenges the trial court’s award of prejudgment interest. The City notes the general rule that prejudgment interest is not recoverable where the amount and time of the injury are not susceptible of exact determination. City of Morrow v. Cline-Frazier, Inc., 26 Ark. App. 138, 761 S.W.2d 615 (1988); Berkely Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983). In Berkely Pump, in asimilar fact situation where crops were damaged over a period of time, prejudgment interest was denied.

The appellees concede that under the traditional rule prejudgment interest would be inappropriate in this case. But, they argue, the overruling consideration of the constitutional dictates of art. 2, § 22, require that “just compensation” be awarded and the only way compensation can be “just” in this case is for the appellees to be made whole by way of prejudgment interest. We do not find that argument persuasive.

The test for an award of prejudgment interest is whether a method exists for fixing an exact value on the cause of action at the time of the event which gives rise to the cause of action. Hopper v. Denham, 281 Ark. 84, 661 S.W.2d 379 (1983). Where the damages cannot be ascertained at the time of the loss, interest before judgment should not be allowed. Lovell v. Marianna Fed. S & L Ass’n, 267 Ark. 164, 589 S.W.2d 577 (1979). The amount to be paid by the City of Fayetteville depended upon the proof regarding not only the value of the landowners’ property on the date of taking, but also upon how long the temporary taking was effective. Thus, the case differs from Ark. State Highway Comm’n v. Stupenti, 222 Ark. 9, 257 S.W.2d 37 (1953), which required only a determination of the damages or value of the landowners’ property as of the date of the taking.

Affirmed as modified.

Newbern, J., not participating.

       Other than prejudgment interest, no issue was raised concerning the proper measure of damages.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Arkansas v. Gary RIGGS
    CR 90-281
    807 S.W.2d 32
    Supreme Court of Arkansas
    Opinion delivered April 15, 1991

      Mary B. Stallcup, Att’y Gen., by; Clint Miller, Asst. Att’y Gen., for appellant.

      David M. Clark, for appellee.
   Steele Hays, Justice.

Arkansas Code Ann. § 5-37-525 (Supp. 1989) makes it a crime for a contractor or subcontractor to knowingly refuse to pay for materials. The trial court held the statute unconstitutional and the state appeals. We affirm.

Appellee, Gary Riggs, was arrested on two misdemeanor counts of defrauding a materialman under § 5-37-525 for failing to pay for materials totalling $3,729.77. Riggs was convicted in municipal court on both counts. Riggs appealed to the Independence County Circuit Court and moved to dismiss the charges on the ground that § 5-37-525 violated art. 2, § 16 of the Arkansas Constitution, prohibiting imprisonment for debt, which reads:

No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.

The trial court sustained Riggs’ argument and dismissed the charges. The state appeals, contending the trial court erred in holding § 5-37-525 unconstitutional. The statute reads in part:

§ 5-37-525 Defrauding a materialman.
(a) A person commits the offense of defrauding a materialman if being the principal contractor or subcontractor, he knowingly or willfully fails to pay any supplier or subcontractor for materials or goods furnished to the project within thirty days of final receipt of payment under the contract.
* * *
(d) It shall be an affirmative defense to prosecution under this section that the contractor or subcontractor has given notice of a dispute in the terms, conditions, payment, or quality of goods to the contracting consumer or to the supplier or subcontractor, or the contractor has in good faith sought relief in federal court under the bankruptcy laws of the United States, prior to the expiration of the thirty days after receipt of payment under the contract.

In Peairs v. State, 227 Ark. 230, 297 S.W.2d 775 (1957), we held an earlier statute unconstitutional as violating the imprisonment-for-debt clause. The disputed statute read:

Any original or principal contractor or his assignee who shall be paid the contract price or any portion thereof, and who shall fail or refuse to discharge the liens created by this section, to the extent of the contract price received by him, shall be deemed guilty of an offense and punishable as follows.

We held that the absence of language which “makes fraud or fraudulent intent a part or prerequisite of the criminal offense” rendered the statute unconstitutional.

The state does not argue with the result in the Peairs opinion but urges that the requirement under the present statute, providing that the contractor or subcontractor “knowingly or willfully fails to pay,” sufficiently distinguishes it from the statute in Peairs so that it withstands constitutional challenge. The state claims its position is supported by other statutes with similar constitutional provisions and statutes.

The state cites People v. Howard, 75 Cal. Rptr. 761, 451 P.2d 401 (1969), in which the court considered a similar statute which was not dependent on “fraud,” requiring only a willful refusal to pay. The court examined the statute in light of the state’s constitutional prohibition against imprisonment for debt, which, like ours, makes an exception only for cases of fraud. Noting the historical purpose of the constitutional prohibition, the court interpreted the term fraud broadly so as to also include the act prohibited in the statute — “willfully failed to pay,” even though it was not fraud in the conventional sense.

Nevertheless, we note that other states take a stricter view of the same constitutional provision and hold that the fraud exception in the imprisonment-for-debt clauses does not extend to fraud in its broader concepts. See e.g., People v. Piskula, 595 P.2d 219 (Colo. 1979); and see also People v. Collie, 682 P.2d 1208 (Colo. 1983), and Annotation, Failure to Pay Labor, Materialmen as Crime, 78 A.L.R. Fed. 563 (1977).

The state has also relied on standard rules of construction to support its case, i.e., a statute is presumed constitutional and all doubt as to constitutionality is resolved in favor of constitutionality. Duhon v. State, 299 Ark. 503, 774 S.W.2d 834 (1989). However, while these rules generally govern constitutional challenges, that is not so when the safeguards of personal liberties are at issue. As in the case of all constitutional provisions designed to protect the liberties of the individual, every doubt must be resolved in favor of the citizen in the enforcement of the constitutional provision that no person shall be imprisoned for debt. 16A Am. Jur. 2d Constitutional Law § 619 (1979), citing to Bradley v. Superior Court of San Francisco, 48 Cal.2d 509, 310 P.2d 634 (1957); People v. La Mothe, 331 Ill. 351, 163 N.E. 6 (1928); and see also, 16 Am. Jur. 2d Constitutional Law § 97 (1979).

The state has not pointed to any authority that counters the above requirement for doubt to be resolved in the favor of the citizen when this personal liberty is in question. Nor have we found any. As the doubt in this case must favor the individual, we affirm the trial court.


author: David Newbern, Justice.

text:
    FIRST STATE BANK, Beebe v. ARKANSAS STATE BANKING BOARD
    90-346
    806 S.W.2d 624
    Supreme Court of Arkansas
    Opinion delivered April 15, 1991

      Pope, Shamburger, Buffalo & Ross, by: Joseph L. Buffalo, Jr., for appellant.

      Winston Bryant, Att’y Gen., Thomas S. Gay, Senior Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

In its Fourth Extraordinary Session of 1988, by Acts 2 and 4, the Arkansas General Assembly revised the law on establishing branch banking facilities. The old law prevented a bank from establishing a branch outside the county where its principal office was located except when taking over property previously used for banking by a bank that had been closed by the Bank Commissioner or Comptroller of the Currency. Ark. Code Ann. § 23-32-1201(b) (1987). The appellant, First State Bank, Beebe, contends the new law permits it to convert its current principal office located in White County to a branch and establish a new principal office in Pulaski County. Acting on the authority of an opinion of the Attorney General, the State Bank Board rejected the proposal, and the Circuit Court affirmed. We affirm the Circuit Court’s decision that the new law does not permit the action proposed.

Codified as Ark. Code Ann. § 23-32-1203 (Supp. 1989), the part of the new law relevant to this case is as follows:

(a) No banking institution shall engage in the business of banking at any location other than at a principal banking office or branch bank in this state except as otherwise permitted by law.
(b) Any bank may establish a full service branch and may establish, maintain, and use a customer-bank communication terminal, as that term is defined in § 23-32-1301, provided that its supervisory banking authority approves its application for the full service branch. Full service branches and customer-bank communication terminals may only be established as follows:
(1) A bank may establish full service branches and customer-bank communication terminals anywhere within the county in which the establishing bank’s principal banking office is located;
(2) A bank which relocates its principal banking office may continue to use its former principal banking office location as a full service branch and customer-bank communication terminal so long as the use as a banking facility is uninterrupted;
(3) In addition to the above subdivisions, after December 31, 1993, a bank may locate one (1) or more full service branches and customer-bank communication terminals anywhere within any counties contiguous to the county in which its principal banking office is located;
(4) After December 31,1998, a bank may locate one (1) or more full service branches and customer-bank communication terminals anywhere in this state.

The Bank’s argument is based on subsection (b)(2) of the statute which contains no geographical limitation on relocating a principal bank office.

1. Literal meaning

The bank cites Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983), for its statement that we give language its plain meaning where it is plain and unambiguous. The language of § 23-32-1202 deals with the subject the codifiers have labeled, “Establishment of full service branch offices — Locations.” The moving of a principal bank office and the retention of the previous principal bank office as a branch constitutes establishment of a branch, and that is limited by subsection (b)(1) to “anywhere in the county in which the establishing bank’s principal banking office is located.” The Bank’s proposal is to create a branch in White County while its principal office will be in Pulaski County. That is prohibited clearly by subsection (b)(1). We are unwilling to focus solely on subsection (b) (2) without reference to what goes before and after. We ascertain the intent of the General Assembly from the language of the whole act. Cozad v. State, 303 Ark. 137, 792 S.W.2d 345 (1990).

2. Legislative intent or purpose

If subsection (b) (2) were read to create an ambiguity or conflict in the Act by its failure to limit geographically the relocation of a principal banking office, only then would we seek to ascertain the intent of the General Assembly by using rules of statutory construction concerning matters outside the language of the Act. Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977); Arkansas State Highway Comm’n v. Mabry, 229 Ark. 261, 315 S.W.2d 900 (1958).

We need not do that here, for language used in the Act shows the General Assembly intended to allow banks to expand gradually by allowing establishment of branches in counties contiguous to those of their principal banks in 1994 and allowing branches statewide in 1999. By stating that after December 31, 1993, a branch could be established in a county contiguous to one in which the establishing bank’s principal office was located the law clearly implied that such branches could not be established prior to that time.

If it were necessary to go beyond the language of the Act, we would need only to look to the language of its accompanying emergency clause which accompanies an Act to determine the General Assembly’s intent. Missouri Pac. RR Co. v. Kincannon, 203 Ark. 76, 156 S.W.2d 70 (1941). The emergency clause provided, in relevant part, that the change in the law was necessary “to authorize county-wide branch banking and to provide for the orderly expansion of branch banking, after a period of time, outside the county, and to authorize statewide branch banking after a defined period of time. . . .”

No doubt the General Assembly did not intend to permit contiguous county branch banking prior to 1994.

Affirmed.


author: Tom Glaze, Justice.

text:
    Hilda Jean Ware GREEN and Dolas Ware, et al. v. Elzie WARE
    90-195
    807 S.W.2d 24
    Supreme Court of Arkansas
    Opinion delivered April 15, 1991

      Jay E. Hoggard, for appellants.

      Compton, Prewett, Thomas & Hickey, by: Floyd M. Thomas, Jr., for appellee.
   Tom Glaze, Justice.

This will construction case is a sequel to Ware v. Green, 286 Ark. 268, 691 S.W.2d 167 (1985), where this court mentioned but did not decide the issue now presented in this appeal. As described in Ware I, the testator’s will gave his widow, the appellee here, all his real property for life or for so long as she remains his widow. However, he also granted her the power to sell or dispose of the realty “when [she] had inadequate money to provide her with the standard of living to which she is accustomed.” We held in Ware I that the testator’s will allowed the widow to make a good faith decision as to when to exercise her power to sell but that her election to do so was subject to her notifying the testator’s children, as remaindermen, so they would have first option to purchase the realty in the manner set out in the will. The children, appellants in this appeal, were the testator’s by a prior marriage.

Since Ware I, the appellee widow filed a partition suit requesting to sell part of the real property given her by the will, and the testator’s children were duly notified of a potential or pending private sale. The children refused to exercise their right to purchase the property, so the property was sold to third parties, and the entire sale proceeds were placed into the court’s registry. The trial court ruled that, under the will, the appellee was entitled to all of the sale proceeds and the only restriction placed on her was to spend the proceeds for her support and maintenance. Appellants contended below, and contend now on appeal, that the appellee is entitled only to the reduced or commuted value of a life estate in those proceeds. The trial court was correct, and we affirm.

Appellants’ argument largely relies on Patty v. Goolsby, 51 Ark. 61 (1888), where the testator gave his wife a life estate in real property with the remainder in fee to his children; the wife was also given the power to sell or dispose of the property. The testator’s widow later sold the realty, but the Patty court held that she conveyed only a life interest and the children became entitled to the property as devisees of the remainder. The Patty court, quoting from Giles v. Little, 104 U.S. 291 (1881), also said that when a power of disposal accompanies a bequest or devise of a life estate, the power is limited to such disposition as a tenant for life can make unless there are other words clearly indicating that a larger power was intended.

The Patty case has been often cited and distinguished in later cases. See, e.g., Pearrow v. Vaden, 201 Ark. 1146, 148 S.W.2d 320 (1941); Union & Mercantile Trust Co. v. Hudson, 143 Ark. 519, 220 S.W. 820 (1920); Archer v. Palmer, 112 Ark. 527, 167 S.W. 99 (1914). For example, the Archer case, relying in part on the above quotation from Giles, determined the holding or conclusion reached in Patty was inapplicable because when the will in Archer was read and considered as a whole, the testator, when granting his wife a life estate and the power to sell and dispose of it, did not limit such disposition as a tenant for life could make. The Archer court stated the rule as follows:

According to the current authority, the rule is that where a testator gives an estate for life only, with the added power to the life tenant to convey the estate absolutely, the life tenant may defeat the estate of a remainderman under the will by the exercise of the power of disposal during his lifetime.

Relying on the same authority cited in Archer, the Pearrow court held that the widow there — a life tenant with the power to sell — could convey, not merely her life estate, but the fee title. In the present case, appellants attempt to distinguish Pearrow because there the testator gave his wife a life estate with the right to dispose of the property “in the event that her financial condition or health make it necessary to do so.” Appellants reason that the testator manifested his intent that his wife be provided for if her financial condition or health required it — which was shown. Of course, here the testator’s conditions were worded somewhat differently, viz., that his wife shall have the right to dispose of the property if (1) she does not have adequate money to provide her with the standard of living to which she is accustomed and (2) she gave written notice of her intent to sell to his children so they could be given first option to purchase the property. Nonetheless, like in Pearrow, the conditions expressed here by the testator were met.

Thus, under the other will provisions, as read, considered and harmonized by the trial court, appellee was found to have had the full power to sell the property to another person (after the appellants declined) for a sum no.less than that which was offered the appellants, as the testator’s children. As also required under the will, the trial court further concluded that those sale proceeds “shall be [her] sole and absolute property” and “she shall use said money only for her support and maintenance.” The trial court’s conclusion not only appears consistent with this court’s decisions in Pearrow, Archer and Hudson, but also is in accord with what a treatise on wills cites to be the general rule on this subject, which reads as follows:

A power is often conferred to sell and to use the proceeds for the support, maintenance, and comfort, of some designated person, usually the donee of the power. Under such a power, the donee may convey a fee.

5 Bowe-Parker, Page on Wills § 45.11 (1962).

When reviewing the testator’s will as a whole, we, like the trial court, believe the testator fully intended to give his wife a life interest in his real property with the remainder in his children, but he first desired that his widow be maintained and supported in the standard of living to which she was accustomed. When the widow’s existing standard of living could not be maintained, she had the right to sell the real property to obtain sufficient funds to continue that standard, assuming she first gave the testator’s children the option to purchase the property. As discussed above, we believe the Patty holding is simply not controlling under the circumstances here. Therefore, we affirm.

       Appellants never questioned the validity of the fee simple title conveyance to the third parties, and the dispute here is limited only to the proceeds gained from that conveyance.


author: Donald L. Corbin, Justice.

text:
    Michael C. KRICFALUSI v. BROKERS SECURITIES, INC.
    90-306
    806 S.W.2d 622
    Supreme Court of Arkansas
    Opinion delivered April 15, 1991

      Robinson, Staley & Marshall, by: Robert L. Robinson, Jr., for appellant.

      Josh E. McHughes, for appellee.
   Donald L. Corbin, Justice.

The sole issue raised in this appeal is whether the trial court erred in granting full faith and credit to the default judgment entered by a Virginia court in favor of appellee, Brokers Securities, Inc., against appellant, Michael C. Kricfalusi. We find no error and affirm.

Although under the full faith and credit clause of the United States Constitution, a foreign judgment is as conclusive on collateral attack as a domestic judgment would be, exceptions to this rule exist where there is either a defense of fraud in the procurement of the judgment or a want of jurisdiction in the rendering court. Elliott, Ex’x v. Hardcastle, 271 Ark. 90, 607 S.W.2d 381 (1980); Purser v. Corpus Christi State Nat’l Bank, 256 Ark. 452, 508 S.W.2d 549 (1974); Phillips v. Phillips, 224 Ark. 225, 272 S.W.2d 433 (1954); Cella v. Cella, 12 Ark. App. 156, 671 S.W.2d 764 (1984). Appellant’s challenge to the trial court’s granting full faith and credit is based on the asserted absence of personal jurisdiction on the part of the Virginia court. Therefore, we will consider whether the service of notice was defective.

Appellant contends that appellee did not satisfy the due process requirement that service be reasonably calculated to reach the party to be served. Regarding the service of process, the Virginia court in its order of default judgment stated:

WHEREUPON, the Court, having examined the record herein and the evidence ore terms and noting that service was made on the defendant pursuant to Sections 8.01-328.1 and 8.01-329 of the Code of Virginia as amended (Virginia’s Long Arm Statute),. . . .

The record includes only this order of the Virginia court, the pleadings made to the Arkansas court concerning the foreign judgment, affidavits given by appellant and by appellee’s president, and the filings required for appeal. For this reason we have been forced to look at the affidavits to discern the relevant facts.

The parties, in December 1987, entered into an employment contract, which required appellant to move from Little Rock to Hampton Roads, Virginia, after the new year. Appellant assumed the duties of Chief Financial Officer of appellee’s corporation at that time. In May 1988, appellee notified appellant that the corporation was to be sold and that their relationship would end. Appellant worked for appellee until June 15, 1988.

Appellant claims that upon leaving this employment, he made appellee aware that he was beginning employment with the Mid-West Stock Exchange. It is not disputed that appellant left three forwarding addresses with appellee: a residence address at 1922 North Monroe, Little Rock, Arkansas, 72207; a business address at 400 North Olive, Suite 3302, Dallas, Texas, 75201; and a second business address c/o Mid-West Stock Exchange, 440 South LaSalle Street, Chicago, Illinois, 60605.

While living in Virginia, appellant allegedly borrowed a sum of money from appellee and did not repay it. Appellee filed suit in Virginia to collect the amount owed. As appellant was a nonresident, service of process was obtained, pursuant to the Virginia Long Arm Statute, by serving the Secretary of the Commonwealth of Virginia. The Secretary, on March 23,1989, mailed the Summons and Complaint by first class mail to the Dallas, Texas, business address. Appellant did not answer and, on May 5,1989, default judgment was entered against him in the Circuit Court of the City of Norfolk, Virginia.

The Virginia statute upon which appellant bases his claim is Va. Code Ann. § 8.01-329 (Supp. 1990), the relevant portion of which reads as follows:

Service of process or notice on the Secretary may be made by mail if such service otherwise meets the requirements of this section. Such service shall be sufficient upon the person to be served, provided that notice of such service, a copy of the process or notice, and a copy of the affidavit are forthwith mailed, by the Secretary to the person or persons to be served at the last know post-office address of such person, and a certificate of compliance herewith by the Secretary or someone designated by him for that purpose and having knowledge of such compliance, shall be forthwith filed with the papers in the action. Service of process or notice on the Secretary shall be effective on the date the certificate of compliance is filed with the court in which the action is pending.

It is not appellant’s contention that this statute is unconstitutional. Rather, it is his contention that appellee’s use of the procedure set out therein fell short of due process requirements. Even though appellant concedes that appellee was not bound to use all three addresses, he claims appellee, by mailing notice to only the Dallas business address, did not satisfy the due process requirement established in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), that service be reasonably calculated to reach the party to be served.

Determining whether service of process was reasonably calculated to reach a party involves analysis of particular circumstances of each case. Virginia Lime Co. v. Craigsville Distrib. Co., 670 F.2d 1366 (4th Cir. 1982). The record reveals that preceding the March 23, 1989 service of process mailed by the Secretary of the Commonwealth of Virginia to the Dallas address, only on one occasion did appellee correspond with appellant by mail; on December 4,1987, appellee mailed appellant a letter confirming appellant’s employment. This letter was mailed to the same Little Rock address that appellant gave as one of the forwarding addresses. As stated before, upon leaving his employment with appellee in Virginia, appellant gave appellee three addresses to be used for forwarding purposes. Even assuming appellee knew appellant had permanent ties to Little Rock, we cannot say that mailing the notice to one of the addresses appellant gave appellee is not service reasonably calculated to reach appellant.

Based on the foregoing, the trial court’s granting full faith and credit to the foreign judgment is affirmed.


text:
    H. D. SUTTON v. RYDER TRUCK RENTAL, INC.
    90-55
    807 S.W.2d 905
    Supreme Court of Arkansas
    Opinion delivered April 15, 1991
    [Rehearing denied May 13, 1991.]

      Friday, Eldredge & Clark, by: William A. Waddell, Jr., for appellant.

      Michael W. Mitchell and Clayton R. Blackstock, for appellee.
   W. W. Bassett, Jr., Special Chief Justice.

This case involves a contract dispute. The primary issue is whether a contract between Appellant, H. D. Sutton, and Appellee, Ryder Truck Rental, was a valid lease agreement or a veiled conditional sale contract. Sutton entered into a truck lease and service agreement with Ryder on February 28,1983. In 1984, and again in 1986, Sutton leased additional vehicles from Ryder. In 1987, Sutton stopped making payments to Ryder under the agreement. Ryder filed suit against Sutton. Sutton counterclaimed alleging that the agreement was actually a conditional sale which was usurious. Sutton’s counterclaim sought damages in the amount of twice the sum of the alleged interest paid by Sutton to Ryder under the agreement.

The case was tried to a jury in August, 1989. The jury found the contract was a valid lease agreement and returned a verdict for Ryder in the amount of $208,072.13. In addition, the trial court awarded Ryder attorney’s fees in the amount of $53,256.50. The trial court, however, refused Ryder’s claim for expert witness fees in the amount of $24,368. Alleging numerous errors by the trial court and that the jury’s verdict was clearly against the preponderance of the evidence, Sutton made a motion for a new trial. The trial court denied Sutton’s motion. Sutton appealed. Ryder cross-appealed claiming that the trial court erred in refusing to award expert witness fees. We affirm on both the direct and cross-appeal.

In Fisher Trucking, Inc. v. Fleet Lease, Inc., 304 Ark. 451, 803 S.W.2d 888 (1991), this Court stated that the presence of the following five factors would indicate a conditional sale:

(1) The lessor is a finance company;
(2) The agreement puts all the risk upon the lessee;
(3) The agreement provides the same remedies upon the lessee’s default in the payment of rent that would be available to a conditional seller or to a mortgagee upon similar delinquency;
(4) The agreement provides that the lessee will upon the lessor’s request join the lessor in executing financial statements pursuant to the Uniform Commercial Code and other assurances the lessor deems necessary for protection of the interest of the lessor in the equipment; and
(5) There is an absence of any appreciable residual in the lessor at the expiration of the lease.
See also Hill v. Bentco Leasing, Inc., 288 Ark. 623, 708 S.W.2d 608 (1986); Bell v. Itek Leasing Corp., 262 Ark. 22, 555 S.W.2d 1 (1977).

In applying this analysis, this court has identified the absence of any appreciable residual in the lessor at the expiration of the lease as the “most fruitful single test” to distinguish a conditional sale from a lease. See Hill, 288 Ark. 623, 708 S.W.2d 608. Therefore, we place great emphasis on the amount the lessee must pay to acquire title after all payments have been made. See Fisher Trucking, Inc. v. Fleet Lease, Inc., 304 Ark. 451, 803 S.W.2d 888.

Applying these five factors to the case at bar, we first look to see if the lessor, Ryder, is a finance company. We find that it is not. Ryder leases vehicles and provides other incidental services to its customers associated with the use of these leased vehicles. Sutton not only leased trucks from Ryder, but also utilized many of the incidental services offered by Ryder. The facts show that Ryder is a full service lease company, not a finance company.

The facts further show that the agreement did not put all the risk upon the lessee, Sutton. Under the agreement, Ryder assumed the risk of repairs to the leased vehicles and agreed to replace or furnish substitute vehicles for those which became temporarily inoperable because of mechanical failure. Ryder also procured and provided Sutton with liability insurance with combined bodily injury and property damage limits of $750,000 per occurrence. Ryder paid at least one claim on Sutton’s behalf in which one of the leased vehicles was completely destroyed and the driver killed. Sutton did not assume all the risk of loss under the agreement.

The answer to the question of whether the lease agreement provided Ryder with the same remedies upon default as those available to a conditional seller or mortgagee upon similar delinquency is somewhat more difficult to reach. Upon default, a secured creditor or mortgagee may declare all remaining payments due, repossess the property, sell it and hold the debtor liable for any deficiency. The Ryder truck lease and service agreement provided that upon default, Ryder could possess the vehicles and demand that Sutton purchase them. However, Ryder does not seek to enforce this remedy. Instead, Ryder sought damages for those lease payments which were actually due and payable in addition to early termination charges provided for under the contract.

Sutton argues that Ryder’s right to possess the vehicles upon default and demand that Sutton purchase these vehicles has the same effect as selling the trucks to a third party at a public sale and obtaining a deficiency judgment. While there may be little, if any, practical distinction between the right to posséss and demand purchase, and the right to repossess, sell and seek a deficiency judgment, Ryder sought neither of these remedies. Ryder only sought damages for those lease payments that were actually due and payable under the contract and charges for early termination provided for under the contract. Ryder, in effect, sought those damages under the contract for early termination of the lease and not for default.

The fourth factor to be considered is whether the agreement required the lessee, Sutton, to execute a financial statement pursuant to the Uniform Commercial Code or provide other assurances to protect Ryder’s interest in the vehicles. The agreement contained no such provision. Moreover, Ryder never requested these additional assurances from Sutton.

Finally, the facts clearly show that Ryder retained an appreciable residual at the expiration of the lease and on each anniversary date of the lease when Sutton could exercise his option to purchase under the contract. Therefore, at no time was the option price nominal.

In Bell v. Itek, supra, we held that an option price for 10% of the original contract price was nominal. In Fisher Trucking, Inc. v. Fleet Lease, Inc., supra, we held that an option price of 50 % of the fair market value was not nominal. In the case at bar, at no time was the option price less than 44% of the original contract price. Moreover, at all times, the option price exceeded the fair market value.

In support of his argument that the option purchase price was nominal, Sutton basically relies upon In Re Puckett, 60 B.R. 223 (M.D. Tenn. 1986). In that bankruptcy case, the court used the “economic realities” test to determine whether an option purchase price was nominal. Sutton urges this court to adopt the economic realities test and find that the option purchase price was nominal. We decline to do so.

At the trial, Dent Gitchell, a lawyer and professor at the University of Arkansas Law School in Little Rock, appeared and testified on behalf of Ryder. The upshot of Gitchell’s testimony was to inform the jury of the basic remedies available for the breaches of an installment sale contract and lease agreement. Even though the trial court permitted the testimony, it specifically ruled that Gitchell could not couch his testimony in terms of any opinion comparing the remedies under the lease with the normal remedies for an installment sale. Sutton argues that Gitchell’s testimony violated Rule 704 of the Arkansas Rules of Evidence because it had the effect of telling the jury what result it should reach as to whether the remedies available to Ryder were the same remedies that would be available to a conditional seller or mortgagee. We disagree.

Rule 704 of the Arkansas Rules of Evidence provides:

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of. fact.

Here, it is doubtful that Gitchell ever rendered an opinion. If one was rendered, it certainly did no more than is permitted by Rule 704. See Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981). While we believe the better practice would have been for the trial court to properly instruct the jury as to the basic remedies available for the breaches of an installment sale contract and lease agreement, we cannot say under the facts in this record, that it was prejudicial error for the court to permit Gitchell’s testimony.

At the trial, Gary Welch, a certified public accountant, was prepared to testify on behalf of Sutton that at the expiration of the lease agreement Sutton had “no sensible alternative” but to exercise the option to purchase. The trial court excluded this testimony. Sutton proffered it.

The basis of this proffered testimony was that by exercising the option to purchase, Sutton could operate these vehicles more economically efficient as an owner rather than as a lessee. Sutton proffered the testimony for the purpose of showing that the option purchase price was nominal and the agreement nothing more than a sales contract in disguise. Sutton argues that the trial court erred in excluding this testimony. Once again, we disagree.

The question of whether the option purchase price is nominal turns on whether the lessor has retained an appreciable residual at the expiration of the lease. It is not determined by analyzing the hard costs of operation over the remaining economic life of the chattel should the lessee choose to exercise the option to purchase. Welch’s proffered testimony was, therefore, not relevant evidence that the option purchase price was nominal. The trial court properly excluded it under Rule 402 of the Arkansas Rules of Evidence. Even if the proffered testimony was relevant, its probative value was substantially outweighed by the danger of confusing the issues and misleading the jury and, therefore, not admissible under Rule 403 of the Arkansas Rules of Evidence.

Next, Sutton argues that the trial court erred by improperly instructing the jury as to the applicable law. After ruling that Welch’s testimony was inadmissible, the court nonetheless proceeded to instruct the jury in its Instruction No. 16 that the lack of a sensible alternative was one factor to be considered by them in determining whether the amount which Sutton must pay to exercise an option to purchase was “nominal”. While this part of Instruction No. 16 is inconsistent, it is likewise harmless, as the undisputed evidence shows there was no nominal option price. We find any error on the court’s Instruction No. 16 to be harmless error. Haseman v. Union Bank of Mena, 597 S.W.2d 67, 268 Ark. 318 (1980). We do not find it necessary to address point by point additional errors that Sutton maintains the trial court committed in instructing the jury. We have reviewed those instructions and find that they adequately instructed the jury as to the law it should apply to this case, and we find no error in the trial court’s instructions to the jury.

Finally, Sutton argues that the attorney’s fee awarded to Ryder by the trial court was excessive. An award of attorney’s fees is a matter for the sound discretion of the trial court. Absent an abuse of that discretion, this court will affirm. Southall v. Farm Bureau Mutual Ins. Co. of Ark., Inc., 676 S.W.2d 228, 283 Ark. 335 (1984). In the case at bar, we find that the award was reasonable and that the trial court did not abuse its discretion.

In Robinson v. Champion, 251 Ark. 817, 475 S.W.2d 677 (1972), this court identified a number of factors that should be taken into account in determining the reasonableness of an attorney’s fee. Among these considerations were the attorney’s skill and experience, relationship between the parties, difficulty of services, extent of litigation, time and labor devoted to the cause, fee customarily charged, and the results obtained. These factors are also set forth in Rule 1.5 of the Model Rules of Professional Conduct. These rules, of course, have been adopted by this court.

Applying these factors to the case at bar, we have no difficulty in concluding that the attorney’s fee awarded Ryder by the trial court was reasonable. The charges for the services provided by Ryder’s attorneys are well documented through affidavits and an extensive itemized statement. Given the nature, complexity and duration of this case, Ryder’s charges were justified and the attorney’s fee awarded Ryder was reasonable.

Lastly, we address the issue raised by Ryder on its cross-appeal. Ryder argues that the trial court erred by denying its claim for expert witness fees in the amount of $24,368. The allowance of costs is purely statutory, and in the absence of a statute, the fees of expert witnesses cannot be charged against the losing party. State Highway Comm. v. Union Planters Nat’l Bank, 231 Ark. 907, 333 S.W.2d 904 (1960). Arkansas has no statute which allows Ryder to recover expert witness fees in this case. Therefore, we affirm the trial court’s decision denying Ryder’s claim for expert witness fees.

Holt, Chief Justice, not participating.


author: Per Curiam. Robert H. Dudley, Justice,

text:
    G.B. COLVIN III v. COMMITTEE ON PROFESSIONAL CONDUCT
    90-184
    806 S.W.2d 385
    Supreme Court of Arkansas
    Opinion delivered April 15, 1991

      Compton, Prewett, Thomas and Hickey, by: Robert C. Compton, for appellant.

      Hoover, Jacobs and Storey, by: Lawrence J. Brady, for appellee.
   Per Curiam.

This appeal is brought from a decision of the Arkansas Supreme Court Committee on Professional Conduct, suspending for one year the attorney’s license of appellant, G.B. Colvin, III, a member of the Arkansas Bar. The committee determined that Colvin was guilty of violating Rules 1.3 and 1.4 of the Model Rules of Professional Conduct (Rules) upon the complaint of Tony Reginelli, Jr. Mr. Reginelli complained to the committee based on Colvin’s handling of a suit for damages arising from injuries sustained when Reginelli was struck by a crop-dusting plane. Mr. Reginelli alleged that his lawsuit was dismissed with prejudice due to Colvin’s failure to respond to requests for admissions and interrogatories within the time allowed by order of the Chicot County Circuit Court.

Colvin raises several points on appeal. He contends he was deprived of due process in violation of the Fourteenth Amendment of the United States Constitution, that the sanction was too harsh in light of established precedent and the evidence presented to the committee, that the sanction has a chilling effect upon the constitutional rights of indigent criminal defendants and that Colvin should be authorized to continue to serve as deputy prosecuting attorney.

Colvin submits he was deprived of due process by the failure of the committee to give him adequate notice regarding the proceeding against him. We find a flaw in the procedure the committee followed that leads us to conclude that the due process, to which each practitioner is entitled, was not fully accorded.

The committee notified Colvin that his actions appeared to violate certain rules, but it was not until the committee’s final decision was rendered that a violation of Rule 1.4 was raised. Since no notice of the charge of Rule 1.4 was given in advance of the committee’s proceedings, the finding of a violation of that rule cannot be sustained. Walker v. Supreme Court Committee on Professional Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982).

In Walker, supra, this court found that the committee failed to give appellant notice of a specific rule that he was subsequently charged with violating before the committee’s proceeding, so we vacated that particular finding; nevertheless, we left the other findings of the committee undisturbed. That would not be appropriate here. In this case, we have only five ballots in the record to substantiate the committee’s vote, however, by affidavit the committee maintains that the outstanding votes of two committee members were acted upon in a subsequent meeting and both were votes to suspend Colvin. The five ballots in the record consist of three votes in favor of a reprimand and two in favor of suspension. So we know the committee was divided as to what sanction to impose, at least in the first juncture of its decision-making process. Also, on appeal Colvin questions the harshness of his sanction for a violation of Rules 1.3 and 1.4, in light of other sanctions imposed by the committee. Hence, we think the situation is different from that in Walker, and we remand the cause to the committee to reconsider the facts and determine the appropriate sanction for a violation of Rule 1.3 only. We do not need to address appellant’s remaining points.

Reversed and remanded.

Dudley and Newbern, JJ., dissent.

Brown, J., not participating.

Robert H. Dudley, Justice,

dissenting. This case is identical to the case of Walker v. Supreme Court Committee on Professional Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982). Even so, the majority opinion does not follow the precedent set in Walker. Therefore, I dissent.

In Walker, supra, the Committee on Professional Conduct gave the attorney involved notice that he was charged with violating Disciplinary Rule 6-101 (a)(3). After a hearing, the committee found that the attorney’s action had violated DR-6-101(a)(3), as well as DR-6-102(a), and imposed a sanction. On appeal, this court held that the attorney could not be found guilty of violating DR-6-102(a) since he had not been charged with violating that rule. However, we held there was substantial evidence to support the finding of a violation of DR-6-101 (a) (3), and affirmed the sanction because it was within the range of authorized sanctions for violation of DR-6-101 (a)(3).

In this case the attorney was charged with violating Rule 1.3 of the Model Rules of Professional Conduct. After a hearing the committee found that his action violated not only Rule 1.3, but Rule 1.4 as well, and imposed a sanction. On appeal, the majority holds that the attorney could not be found guilty of violating Rule 1.4 since he had not been charged with violating that rule. However, for some unexplained reason, the majority opinion does not then go ahead and decide whether there was substantial evidence to support the finding of a violation of Rule 1.3, and the concurrent imposition of a sanction. Instead, in a proceeding which appears to be wholly without precedent, the majority neither affirms nor reverses the finding of a violation of Rule 1.3, but, instead remands “the cause to the committee to reconsider the facts and determine the appropriate sanction. . . .” The majority opinion simply does not decide the case.

Some of the many questions raised by such a holding are: Since the previous finding has not been reversed, is it now the law of the case? What about judicial economy, and our oft-expressed desire to end litigation? Do we want piecemeal litigation? Why not follow the standard appellate procedure and either affirm or reverse the finding? Why not follow the precedent of the Walker case?

Any reader of the majority opinion can read between the lines and see that the unprecedented procedure has been created because the members of the majority think the sanction imposed was too severe. In fact, at the oral argument of this case counsel for the attorney involved asked us to reduce the sanction to a reprimand. (A request which constitutes a tacit admission that there is substantial evidence of a violation.) In his brief, appellant goes so far as to ask that any suspension be only from the civil practice of law; not the criminal practice. Obviously, a majority of the members of this court were impressed with the arguments and think that the sanction was too severe. Yet, the level, or degree, of the sanction is not valid reason for the remand since the sanction was within the range provided for violation of Rule 1.3. See Rules of Professional Conduct 7. This is not a trial court. It is an appellate court. We are not supposed to set penalties. We are not supposed to remand without decision. We are supposed to affirm or reverse. I would follow our established procedure as set out in Walker, supra, and affirm the finding and sanction. Accordingly, I dissent.

Newbern, J., joins in this dissent.

       Rule 1.3 provides, “ [a] lawyer shall act with reasonable diligence in representing a client,”
      Rule 1.4 provides, “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”


author: Robert H. Dudley, Justice.

text:
    Radford COX, Sr. and Radford Cox, Jr. v. STATE of Arkansas
    CR 90-264
    808 S.W.2d 306
    Supreme Court of Arkansas
    Opinion delivered April 22, 1991

      Tucker & Thrailkill, by: Patricia A. Page, for appellants.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellants, Radford Cox, Sr. and Radford Cox, Jr., were jointly tried and convicted of the capital murder of Freddie Harrison. Both were sentenced to life in prison without parole. Together, they assert five points, and numerous sub-points, on appeal. We hold there is no reversible error and affirm the judgment of conviction. Because one of the points of appeal involves the sufficiency of the evidence, and another involves the denial of a request for a severance, it is necessary that we discuss the facts in detail.

Appellants Radford Cox, Sr. and Radford Cox, Jr., commonly known as Big Rad and Little Rad, attended the Independence Day celebration at the Clear Creek Bridge near Mena on July 4,1989. Late in the day Little Rad, an adult, was setting off fireworks, when Freddie Harrison, a war veteran, said the fireworks made him nervous. He asked Little Rad to stop setting them off. Little Rad refused, and Harrison started to shove him around. Big Rad said, “Stop it, if you all don’t stop it, somebody’s gonna get hurt.” Harrison knocked Little Rad to the ground. Big Rad reached into his nearby van, grabbed a .25 caliber pistol, and fired three to five shots at Harrison; hitting him in the chest and side. Harrison fell to the ground near a road.

Jonathan Cox, a bystander, went to Harrison and attempted to aid him, but Little Rad kicked him away. Harrison was still breathing at the time. Little Rad dragged Harrison from the road over into some brush about two car lengths away. He returned to the van and said, “It’s not over with yet, we gotta finish it.” Big Rad handed him the pistol. Little Rad then disappeared into the nearby brush where he left Harrison. A witness heard three more shots. Little Rad reappeared and gave the pistol back to Big Rad. Harrison’s body was later found by the police. He had been shot six times. Three of the bullet wounds were in his chest and side, and three more, which had been fired from- only a few inches away, were in his head, with one of them being between the left eye and the left ear, another being to the left forehead, and the third being above the right ear. Subsequently, four of the bullets were removed from Harrison’s body, and a firearms tool marks examiner found all four bullets had been fired from Big Rad’s pistol.

Big Rad subsequently told Jessie Hooks that, “If it got out, he would be the same way Freddie [Harrison] was.” Joann Cox, another eyewitness, said Big Rad told her to “Keep my fucking mouth shut or I would get the same thing.” He told eyewitness Carl Duramus, “If I knew what was good' for me, I’d keep my mouth shut, that I didn’t know nothing about nothing.”

Joann Cox quoted Little Rad as saying, “He shot Freddie Harrison in the head. He did not say in the head. He just said he shot him to get him out of his misery.”

About eight months later Big Rad, while in the Scott County jail, solicited Arnold Shores, another inmate, to kill the state’s main witness, Carl Duramus.

We can quickly dispose of the appellants’ first argument, which involves the sufficiency of the evidence. Both contend there was no substantial evidence of premeditation and deliberation. Those elements of the crime may be inferred from circumstances, such as the character of the weapon used, the manner in which it was used, the nature, extent, and location of the wounds inflicted, the conduct of the accused and the like. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977). Further, premeditation and deliberation in the act of murder can be formulated in the assailant’s mind in an instant. They do not have to exist in the mind of the assailant for an appreciable length of time, but must exist when the assailant commits the act. Shipman v. State, 252 Ark. 285, 478 S.W.2d 421 (1972).

Here, Big Rad got a gun out of his van and fired four or five shots at the victim. Three of the shots hit his torso. He fell, mortally wounded. Little Rad prevented a bystander from aiding the victim and said, “It’s not over yet, we gotta finish it.” Big Rad handed the pistol to Little Rad who then fired three more rounds into the victim’s head. It is hard to imagine any stronger direct evidence of a deliberate intent to kill.

Little Rad separately argues there was no direct evidence that he shot the victim. That bare statement is correct, but it does not entitle him to a reversal because the circumstantial evidence of Little Rad’s guilt is so strong that it is inconsistent with any hypothesis other than guilt.

In another sub-point, both appellants contend that there was insufficient evidence to show which one of them caused the victim’s death. Arkansas law defines causation for the purpose of determining criminal liability as follows:

Causation may be found where the result would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient.

Ark. Code Ann. § 5-2-205 (1987). Our law is well established that, where there are concurrent causes of death, conduct which hastens or contributes to a person’s death is a cause of death. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989); McClung v. State, 217 Ark. 291, 230 S.W.2d 34 (1950); Rogers v. State, 60 Ark. 76, 29 S.W. 894 (1894). See also, W.R. LaFave & A.W. Scott, 1 Substantive Criminal Law, § 3.12 (1986); R.M. Perkins & R.N. Boyce, Criminal Law, 783-4 (3d Ed. 1982).

In the case at bar, the medical examiner who performed the autopsy on the victim testified, “Mr. Harrison was shot six times and he died as a result of these six wounds, which entered the brain, internal organs and caused death of internal bleeding.” The eyewitnesses to the murder described the manner in which the killing occurred. The medical examiner’s testimony, coupled with that of the eyewitnesses’, was sufficient to prove that the victim died as a result of internal bleeding from the shots fired by the appellants. Thus, there was substantial evidence they caused the death of their victim.

In another point, the appellants argue that the trial court erred by refusing to grant their motion for a severance. Again, we can quickly dispose of the argument. A.R.Cr.P. Rule 22.3(b)(1) provides:

(b) The court, on application of the. . . defendant other than under subsection (a), shall grant a severance of defendants:
(i) if before trial it is deemed necessary to protect a defendant’s right to a speedy trial, or it is deemed appropriate to promote a fair determination of the guilt or innocence of one (1) or more defendants.

We have held that the above rule gives the trial court discretion to grant or deny a severance, and the trial court’s ruling will not be disturbed on appeal absent an abuse of that discretion. McDaniel & Gookin v. State, 278 Ark. 631, 648 S.W.2d 57 (1983).

The issue of severance is to be determined on a case by case basis, considering the totality of the circumstances, with the following factors favoring severance: (1) where defenses are antagonistic; (2) where it is difficult to segregate the evidence; (3) where there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; (4) where one defendant could have deprived the other of all peremptory challenges; (5) where if one defendant chooses to testify the other is compelled to do so; (6) where one defendant has no prior criminal record and the other has; (7) where circumstantial evidence against one defendant appears stronger than against the other.

Id. at 638, 648 S.W.2d at 60.

In the present case, the appellants contend that their defenses were antagonistic since it could not be determined which bullets caused the death of the victim. However, as previously pointed out, the shots fired by both defendants contributed to, and were the cause of, the victim’s death. The appellants’ defenses were not antagonistic in this respect.

They further contend that their defenses were antagonistic because they were father and son. However, this argument is not convincing and is not supported by authority. We need not address it further. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Each appellant argues that the evidence against the other was stronger than against him, and accordingly, a severance should have been granted. Big Rad argues that the evidence of Little Rad dragging Harrison and shooting him at point blank range prejudiced Big Rad, who may have only acted in the heat of the moment, after his son had been attacked. The argument ignores that evidence that shows that Big Rad fired several shots into the torso of the victim from a range of a few feet, and that he gave his pistol to his son after his son had said he wanted to “finish the job.”

Little Rad contends the evidence against him was only circumstantial, and therefore, a severance should have been granted. Although circumstantial, the evidence against him is as strong as that against his father. There is no reasonable conclusion to be drawn from the evidence except that Little Rad fired the shots into Harrison’s head. Additionally, the testimony of Joann Cox showed that Little Rad admitted shooting the victim. Under the totality of the circumstances in this case, the trial court did not abuse its discretion in refusing to grant appellants separate trials.

Appellants next argue that the trial court erred in admitting the testimony of Arnold Shores. They contend that, pursuant to A.R.Cr.P. Rule 17(a)(i), the prosecutor failed to disclose the name and address of Arnold Shores. We hold that while Shores might have secreted information, the prosecutor did not do so, and the trial court did not abuse its discretion in allowing Shores to testify. The facts surrounding Shores and his testimony are as follows: About two months before the trial Shores and Big Rad were both in the Scott County jail. Shores, while only twenty-four years old, had spent a good part of his life in trouble. At his young age, he had prior convictions for theft, breaking and entering, aggravated robbery, criminal mischief, terroristic threatening and, at the time, was in jail awaiting trial on a drug charge, for being a felon in possession of a firearm, and for theft by receiving. He was jail-smart and sought to cooperate with the police in the hope of gaining a lesser sentence. About three weeks before the appellant’s trial, Shores was giving a criminal investigator information about some thefts in Greenwood and Fort Smith as well as some burglaries in Logan County. While discussing those matters with the investigator, he mentioned something about Big Rad asking him to do something. Little Rad’s attorney, who coincidentally represented Shores, perhaps suspected Shores might become a witness because, according to his argument, several weeks prior to trial, he asked Shores if he knew anything about the July 4 murder. Shores said no. The trial was set to begin on Tuesday, April 17.

On Friday, April 13, the police talked to Shores, and that evening the prosecutor notified appellants’ attorneys that Shores was a potential witness. The prosecutor confirmed this by a letter delivered the next day, Saturday, April 14. On Monday, April 16, Little Rad’s attorney asked the sheriff to call Shores to find out if he really was going to be a witness. Shores responded that he was not going to testify. On Tuesday, April 17, after voir dire had commenced, the investigator took a written statement which was immediately provided to appellants’ attorneys. That statement, and Shores’ subsequent testimony, were to the effect that two months earlier, while he and Big Rad were in jail together, Big Rad tried to hire him to “go to Carl Duramus’ house and get him out, threaten his family, make him write a statement saying he did that murder. ... He said to make him write a statement saying he done it and shoot him, make it look like suicide, wipe the gun down. He said make sure the gun couldn’t be traced.”

The prosecutor gave notice on April 13 that Shores was a potential witness. Until April 17, neither the prosecutor nor the police knew for certain that Shores was going to be a witness. It was not until then that he divulged the request to kill Carl Duramus. If information had been secreted, it was done by Shores, and not the State. Appellants’ counsel seemed to recognize this at trial because they then argued:

MR. COX: We anticipate they’re going to call some folks, Judge, this Arnold Wayne Shores, for example, and we object to the calling of Arnold Wayne Shores for a number of reasons. Here’s a copy of the statement. One of the reasons that we object to the calling of Arnold Wayne Shores, as we previously told the Court, we claim surprise, that we were misled by Arnold Wayne with regard to his knowledge of this, the fact that he made the statement some time last week to the Criminal Investigation Division, told Sheriff Hunt Monday, not in his presence, in a phone call, that he knew nothing about this matter, hadn’t talked to anybody, hadn’t given any statement. In fact, we were presented with a different statement Tuesday, the day the trial started, a little after lunch time, where he talked about a whole bunch of his alleged knowledge of this .... (Emphasis added.)

Further, the failure of appellants’ counsel to interview Shores appears to have been the result of misunderstanding between counsel, the Sheriff, and Shores, rather than the result of any impropriety on the part of the prosecutor. As previously set out, after the prosecutor listed Shores as a potential witness, but before the trial had started, appellants’ counsel asked the Sheriff to phone Shores and see if he really was going to testify. Shores’ testimony concerning the event is as follows:

BY MR. COX, (con’t.) [Appellants’ attorney]:
Q. Mr. Shores, do you recall a telephone call that you got from Sheriff Maurice Hunt on Monday of this week?
A. Yes, I do.
Q. And do you recall the substance of that telephone conversation?
A. Yes.
Q. Do you recall telling Sheriff Hunt you just didn’t remember any, or didn’t know anything about this at all?
A. I told him I wasn’t out there, I didn’t know nothing that went on out there.
Q. Did you tell him that you had talked to anybody about this or did you tell him you hadn’t talked to anybody?
A. He called me on the phone, asked me if I was a witness in this case, I said not that I know of. I said I wasn’t out there, I don’t know what went on.
Q. Did you tell him that you had not talked to anybody about this case? Did he ask you?
A. He asked me if I had talked to anyone about being a witness and I said no.
Q. But, in fact, you’d talked to Bobby Walker [criminal investigator] about it.
A. Not' about being a witness.
Q. Had you talked to him, Mr. Shores, about this case?
A. I mentioned it to him.
Q. Pardon?
A. I mentioned a few things they’d said to me to him.
Q. Thank you.
BY THE COURT: Any other questions.
MR. BULLOCK: Yes, Your Honor.
REDIRECT EXAMINATION
BY MR. BULLOCK [Prosecuting attorney]:
Q. Mr. Shores, did you mean by the statement to the Sheriff that you weren’t out there at the scene when this occurred?
A. Yes.

Little Rad additionally asks for reversal of his conviction by arguing that Shores’ testimony should have been excluded since it did not apply to him. The argument does not entitle Little Rad to relief. The statement was admissible against Big Rad, but before allowing Shores to testify, the trial court, on its own motion, noted that the testimony might be prejudicial to Little Rad and agreed to give a limiting instruction. Later, at the conclusion of Shores’ testimony, the trial court asked Little Rad’s attorney if he wished to have the limiting instruction given, and he responded that he did not. Therefore, Little Rad is not entitled to separate relief.

Both appellants argue that Shores’ testimony regarding Big Rad’s solicitation of him is immaterial. However, evidence of Big Rad’s attempt to eliminate the key witness against him is relevant as evidence of his guilt. In Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982), this court held that evidence of a party’s attempt to fabricate evidence of innocence was admissible as an admission and as proof of guilt. In reaching this conclusion, we quoted Wigmore, Evidence, § 278 (Chadbourn Rev. 1979) as follows:

that a party’s falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not necessarily apply to any specific fact in the cause, but operates indefinitely though strongly, against the whole mass of alleged facts constituting his cause.

The appellants additionally argue that Shores’ testimony should have been excluded because it was cumulative. The argument is without merit for two reasons: (1) the testimony was not cumulative and (2) the argument was not raised below.

Both appellants next argue that the trial court erred in allowing the testimony of Joann Cox and three other witnesses. We summarily dispose of the argument dealing with the three witnesses because no motion was made below with regard to them. Thus, we deal only with the testimony of Joann Cox. After she had testified a motion was made to strike her testimony because she supposedly had violated the rule. See A.R.E. Rule 615. The trial court heard, proof on the issue and declined to strike her testimony. The ruling was eminently correct. The sequestered witnesses did not discuss the facts of this case or what their testimony would be or had been. One merely returned to the witness room after testifying and said it was “rough.”

At the time of sentencing, A.R.E. Rule 36.4 provided that a motion requesting a new trial on the grounds of ineffective assistance of counsel had to be filed within thirty days. Such a motion was filed, and a hearing was held. The trial court ruled that appellants were not entitled to a new trial. That ruling is included in this appeal.

Their first argument under this section is that appellants’ attorneys were ineffective because they did not cross-examine five witnesses. The first of these was the medical examiner, Dr. Fahmy Malak. They contend he should have been asked which shot actually killed the victim. Such cross-examination would not have made any difference, and trial counsel obviously knew it. As previously discussed, the medical examiner’s testimony established concurrent causes of death and it was not necessary to show which of the concurrent causes was the actual cause. Further, it would have been sheer madness for Little Rad’s attorney to question whether three point-blank shots to the head were a cause of death, and in addition, Big Rad’s attorney had previously found out that Dr. Malak, if questioned, would have testified that the wounds to the torso alone eventually would have been fatal.

Appellants argue their counsel were ineffective for not cross-examining a criminal investigator, the Polk County Sheriff, the Scott County Sheriff, and a Mena policeman. However, they presented no evidence on this issue at the hearing, and thus, have not overcome the strong presumption that counsel made all significant decisions in the exercise of reasonable professional judgment. See Strickland v. Washington, 466 U.S. 668 (1984).

The next ground alleged as ineffective assistance of counsel is the failure to present evidence of the appellants’ intoxication during the guilt-innocence phase of the trial. The appellants argue the evidence of their intoxication at the time of the shooting would have tended to raise a reasonable doubt as to whether they had the requisite culpable mental state to commit capital murder. In White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986), we held that voluntary intoxication is no longer a defense in criminal prosecutions. It is neither a statutory affirmative defense nor a common law defense negating intent in crimes requiring a “purposeful” mental state. Pharo v. State, 30 Ark. App. 94, 783 S.W.2d 64 (1990).

Further, appellants’ attorneys did, in fact, elicit testimony from the witnesses about consumption of alcoholic beverages at the outing. The core of their argument seems to be that they should have been put on the witness stand. The argument is without any basis. At the hearing on the motion for a new trial, the trial attorneys testified that the appellants personally decided not to testify. Certainly Little Rad’s counsel had good reason not to encourage him to testify since he had made a prior statement to authorities denying his presence at the scene of the shooting. This statement was not in evidence but could have been used to impeach him if he had testified. Likewise, Big Rad’s counsel did not encourage him to testify about his intoxication because he felt it would not benefit him. Matters of trial tactics and strategy are not grounds for post-conviction relief. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984).

Appellants also argue that their attorneys were ineffective because they failed to move for a mistrial after the prosecutor, in closing argument, referred to them as “killers” who needed to be taken out of society. Counsel objected to the language, and the trial court sustained the objection, but counsel did not move for a mistrial. Appellants contend that failure constituted ineffective assistance of counsel. Counsel’s strategy was well taken, since a mistrial would not have been granted under such conditions. After all, the prosecutor’s closing argument was based upon the evidence. It was not improperly inflamatory and would not mandate a mistrial.

Finally, because the sentences fixed in this case are life without parole, we are required by Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals to examine the record in order to determine whether there were any reversible rulings other than those argued. There are no such errors.

Affirmed.


text:
    Catherine M. SHIPLEY (White) v. Grady SHIPLEY
    91-78
    807 S.W.2d 915
    Supreme Court of Arkansas
    Opinion delivered April 22, 1991

      Hardin, Jesson & Dawson, by: Robert T. Dawson and Gregory L. Crow, for appellant.

      Bethell & Cromwell, by: Jan Rose Cromwell, for appellee.
   Robert H. Dudley, Justice.

In 1978, Grady Shipley filed suit for divorce against Catherine Shipley. She responded with a counterclaim for divorce against him. They agreed on a property division and agreed that the wife should have custody of the children, but reached an impasse on the amounts of alimony and child support. Both parties were represented by experienced trial attorneys. One attorney eventually suggested to the other that they “let the Judge decide” those amounts. The trial began on January 24, 1979.

Procedurally, the plaintiff husband dismissed his complaint, and the counter-complainant wife then proceeded with her case. First, she presented a witness to corroborate her residency. Next, she presented an accountant to testify about the amount of alimony and child support that she needed. The accountant was cross-examined. Then, the wife took the stand and gave detailed testimony about her needs. In short, she testified that she needed at least $30,000.00 per year. She was cross-examined. The chancellor asked her a number of questions. Those questions and answers cover three and one-half pages of the transcript. There was re-direct, re-cross, and there were more questions by the chancellor. Numerous exhibits were introduced. The husband’s attorney thought the disputed issues finally might be ripe for settlement and asked for a short recess. The chancellor granted the recess. The attorneys went out into the hallway and, after a short while, agreed on a sum for alimony and child support. They returned to the courtroom and announced they had reached a settlement. In announcing the settlement, they called it a “property settlement agreement.” The property part of the agreement covers three and one-half transcript pages and can best be summarized as two attorneys stating their argument with the court asking a lot of questions, but it was not all in the form of a full and final written property settlement agreement. After the property part of the agreement had been discussed, the husband’s attorney stated, “We had agreed to pay $2,000 per month alimony-child support.” The court asked, “How are you going to divide it?” The husband’s attorney responded, “Fifteen hundred dollars alimony and five hundred dollars child support.” The chancellor then awarded custody of the children to the wife, stated that alimony would be $1,500.00 per month, child support would be $500.00 per month, and approved the property settlement agreement.

A little over ten years later, on July 15, 1989, the ex-wife remarried. The ex-husband stopped paying alimony and filed a petition asking the court to terminate alimony. The chancellor ruled that alimony payments should cease. The ex-wife appeals. The Court of Appeals certified the case to us.

The sole issue is whether the agreement on the amount of alimony announced at the divorce hearing was an independent contract which could not be modified by the court, or whether it was an agreement upon an amount that the court should fix as alimony and which the court could modify.

Our case law is well settled that there are two types of agreements concerning the payment of alimony. Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954 (1953). One type is an independent contract in contemplation of divorce by which one spouse binds himself or herself to pay a fixed amount for the other’s support. Such an agreement normally will be a complete settlement of all property rights and will not be subject to modification by the court. This type of agreement does not merge into a decree of divorce, but is an independent contract, and the spouse entitled to receive alimony can enforce it either by the standard contempt action, or through a separate remedy at law. The other type of agreement is less formal than the independent property settlement agreement and is intended to be an amount agreed upon for the court to fix as alimony. By its nature it merges into the decree of divorce and does not confer an independent cause of action. Seaton v. Seaton, supra.

The independent property settlement will usually be in the form of a separate written agreement, Seaton v. Seaton, supra, but it may be in the form of a complete property settlement which is dictated into the record. Kunz v. Jarnigan, 25 Ark. App. 221, 756 S.W.2d 913 (1988). Obviously, if the parties intend for an agreement which is dictated into the record to constitute an independent agreement they should so state.

Here, the parties settled the case well after the trial had commenced. They advised the chancellor of the terms of their property settlement as well as the terms of their alimony and child support settlement. No formal agreement was dictated into the record. They did not state that they intended to create an independent contract for alimony, and the chancellor did not treat it as an independent contract. In his finding at the divorce hearing the chancellor fixed the amount of alimony and child support separately from his approval of the property settlement. Over ten years later, the same chancellor heard the issue now on appeal and commented:

[L]ooking back at my own notes from the date of the trial of this case, as well as the transcript, and all matters before the Court, it’s the Court’s considered opinion that the Plaintiffs Motion to Terminate Alimony should be granted. That it is only equitable and just to do so. The parties did not intend to do otherwise. Had they intended to do otherwise, with the lawyers they had they would have made that known and clear to the Court, which they did not. It’s my recollection and my thinking from looking at all of this that really the Court fixed the alimony and support at the time, and it was my intention to do so, and that’s exactly what I did, and that’s the language that I used, and I had no intention of continuing it beyond the death of one of the parties, or the remarriage of the Defendant. That has been the policy of this state for many years. It is now policy set forth in Act 100 of 1989, without question. There are a number of cases but there is a good case dealing with this matter of intention of the parties, which I will refer you to. It’s McGaugh v. McGaugh, 19 Ark. App. 348, 721 S.W.2d 677 (1986), which deals with the matter of termination of alimony, in particular, and the intention of the parties. I cannot find that there was an intention in this case to do otherwise on their part — other than what was done, and I can tell you that it never was the intention of this Court to do other than to fix the alimony and support as an Order of the Court, rather than any separate agreement of the parties. That was not intended and was not offered in that way, and it certainly was not the finding and decision of this Court, then or now. The Plaintiffs Motion to Terminate Alimony will be granted.

The ex-wife argues that the case of Linehan v. Linehan, 8 Ark. App. 177, 649 S.W.2d 837 (1983), mandates reversal of the chancellor’s ruling. We think not. The Court of Appeals in that case expressly stated:

[T]he $5,000.00 alimony provided for in the agreement was a gross sum and was not to bear interest. In all likelihood, the chancellor would have quickly disallowed this award had he not considered it to be a part of the independent contract. The award of alimony in gross would have been in contravention of a long line of cases prohibiting such awards. Stout v. Stout, 4 Ark. App. 266, 630 S.W.2d 53 (1982), Beasley v. Beasley, 247 Ark. 338, 445 S.W.2d 500 (1969).

The ex-wife appellant similarly contends that the case of Kunz v. Jarnigan, 25 Ark. App. 221, 756 S.W.2d 913 (1988), mandates reversal of the chancellor’s ruling in the case at bar. This argument is also without merit as that case is clearly distinguishable. In that case, on the day set for hearing the divorce, the attorneys dictated a settlement agreement into the record. That agreement provided, in part, that the husband, a military retiree, would pay one-half of his retirement benefits to the wife as alimony. The agreement was later incorporated into the decree of divorce. Subsequently, the ex-wife filed a petition in which she sought to modify the decree to provide that her one-half of the retirement benefits were marital property rather than alimony. The chancellor refused to modify the decree. He stated that it was the “parties’ intent” that the amount be considered as alimony and that there was no “fraud or overreaching.” He further stated that he “doubted” he could modify the agreement. The Court of Appeals affirmed that finding because (1) the “stipulation was a complete settlement” of the parties’ property rights and (2) “even if the stipulation was subject to modification” the chancellor was correct in interpreting the parties’ intent.

It is not necessary for us to address the other assignments of error.

Affirmed.

Glaze, J., concurs, see Linehan v. Linehan, 8 Ark. App. 177, 181, 649 S.W.2d 837, 839 (1983) (Glaze, J., dissenting).