author: w .H. “Dub” Arnold, Chief Justice.

text:
    Raphel CHERRY v. STATE of Arkansas
    CR 01-858
    66 S.W.3d 605
    Supreme Court of Arkansas
    Opinion delivered February 14, 2002
    [Petition for rehearing denied March 21, 2002.]

      Montgomery, Adams & Wyatt, PLLC, by: Dale E. Adams, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   w .H. “Dub” Arnold, Chief Justice.

Appellant Raphel Jerome Cherry was previously before us in State v. Cherry, 341 Ark. 924, 20 S.W.3d 354 (2000), wherein the State appealed the trial court’s order denying the State’s motion for reconsideration and granting Cherry’s motion for a new trial, after the jury returned a guilty verdict and a sentence of life imprisonment for Cherry, based on juror misconduct. On appeal, we held the trial court did not abuse its discretion in granting Cherry’s motion for new trial because Cherry was deprived of a fair trial where prejudice stemmed from the fact that some of the jurors may have made up their minds about his guilt or innocence before the case was submitted to them. On remand and retrial of the first-degree murder charge, Cherry was again found guilty, but this time he received a sentence of thirty years in the Department of Corrections. Cherry, now, brings this appeal, raising three points for reversal and dismissal: whether the trial court erred when it denied Cherry’s motion to dismiss on speedy-trial grounds, whether the trial court erred in denying Cherry’s motion for continuance, and whether the trial court erred in allowing the State to cross-examine Cherry during the sentencing phase of the trial. We hold the trial court’s rulings were correct, and, therefore, affirm.

Speedy Trial

On remand, Cherry’s retrial began on January 24, 2001. However, in a pretrial motion, Cherry moved to dismiss for violation of his right to speedy trial as provided in Arkansas Rule of Criminal Procedure 28.1. Cherry argued that the speedy-trial time began running on September 23, 1999 in accordance with Arkansas Rule of Criminal Procedure 28.2(c), the date the trial court granted a new trial.

In Arkansas, a defendant’s right to a speedy trial is governed by Arkansas Rules of Criminal Procedure 28.1 through 28.3 (2001). A defendant charged in circuit court must be brought to trial within twelve months, excluding periods of necessary delay, of the earlier of the date he was arrested or the date charges were filed; otherwise, the defendant is entitled to an absolute discharge and a bar to prosecution. Ark. R. Crim. P. 28.1(c) & 28.2(a) (2001). Where a defendant is retried following the grant of a new trial, the time commences running on the date the new trial was ordered. Ark. R. Crim. P. 28.2(c) (2001). Periods of necessary delay are set forth in Rule 28.3. Once a defendant makes a prima facie showing that he was brought to trial beyond the twelve months, the burden shifts to the State to show reasons for such delay. Jones v. State, 329 Ark. 603, 951 S.W.2d 308 (1997). The speedy-trial clock is tolled during a period resulting from other proceedings concerning the defendant or during other periods of delay for good cause. Ark. R. Crim. P. 28.3(a) & 28.3(h) (2001). On appeal, this Court reviews the excludability of periods of time for the speedy-trial calculation de novo. Jones; supra.

In this case, Cherry argues that the time period began running on the date the new trial was granted, September 23, 1999, and, not, as the State contends, on the date the mandate was issued after the court affirmed the trial court’s grant of a new trial, September 7, 2000. Cherry argues Rule 28.2(c), which provides:

The time for trial shall commence running, without demand by the defendant, from the following dates:
(c) if the defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, the time for trial shall commence running from the date of mistrial, order granting a new trial or remand.

Ark. R. Crim. P. 28.2(c) (2001). Cherry argues he was to be retried not because of an appeal, but because of the granting of a new trial. Cherry contends that this rule lists several events at which the time for trial should commence running, namely, it contains the common principle that the time for retrial begins upon the date of the event that requires the retrial. Thus, if that event were the grant of a new trial, the time for retrial begins running upon the date the new trial was granted. If retrial was made necessary due to an appeal, the time for retrial begins running on the date the mandate is issued. Cherry also asserts that the retrial was necessary because the trial court granted a new trial, hence the time for retrial commenced running on September 23, 1999, the date the trial court granted the new trial.

Cherry further argues that there are no excludable periods of time provided for in Rule 28.3, that would lengthen the time for trial to be brought by the State. Cherry contends that the time in which the State’s appeal was pending was not excludable from the calculation because it is not provided for in Rule 28.3(a), which states:

The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals, and trials of other charges against the defendant.

Ark. R. Crim. P. 28.3(a). Cherry asserts that this rule is intended for only those appeals in which the defendant brings, and not the State.

However, the State relies on Thornton v. State as controlling authority. 317 Ark. 257, 878 S.W.2d 378 (1994). In that case, the State appealed a trial court’s dismissal order of the charges against the defendant, which this court reversed. On remand, the defense moved for dismissal based on speedy trial, and the trial court denied the motion. This court reversed the trial court’s denial of the motion to dismiss for the denial of speedy trial, and held that the time between the filing of the State’s notice of appeal and this court’s issuance of mandate in the state’s appeal, which reinstated the State’s charges against the defendant were excluded. This Court further held that:

Rule 28.2(c), the rule relied on by the state, provides that, if the defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, the time for trial shall commence running from the date of mistrial, order granting a new trial or remand. Before Rule 28.2(c) applies, the provision plainly presumes, at the least, the state had commenced trying its case against the defendant and the trial concluded in a mistrial or the defendant had been tried but his conviction had been set aside, appealed, or collaterally attacked. In the Clements case relied upon by the state, the defendant had been tried, convicted and sentenced, but his conviction was overturned on appeal and remanded for a new trial.

Thornton v. State, supra; Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993). Therefore, this court held that the speedy-trial clock was tolled during the pendency of the State’s appeal pursuant to Rule 28.3. Thornton, supra.

Cherry contends that the holding of Thornton and the plain wording of Rule 28.2(c) compels that the time for retrial commences upon the date of the event that precipitated the retrial. That event in the case at hand, Cherry asserts, was the trial court’s grant of a new trial, which was affirmed by this court, and not this court’s mandate following the affirmance of that order. Thus, the time for retrial here commenced on September 23, 1999, the date the trial court granted a new trial, and the State has until September 2000, less any excludable periods in which to try Cherry.

Cherry additionally claims there was no excludable periods of time that would lengthen the time for bringing the retrial. Rule 28.3 states:

The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals, and trials of other charges against the defendant.

Ark. R. Crim. P. 28.3(a) (2001). Cherry claims that since there were no competency issues, pretrial concerns, interlocutory appeals, or other charges against him, there were no periods of time which could be construed as excludable.

The State, in this case, argues that the time in which the State appealed the trial court’s grant of a new trial on the motion by Cherry was another proceeding concerning the defendant under Rule 28.3, regardless of the fact that it was not an appeal by Cherry. The State relied upon Thornton, where the trial court first dismissed the charges against Thornton and set him free, and then the State appealed that dismissal and won. Thornton, later, moved to dismiss the charges based on speedy-trial grounds, which the trial court denied. This court held that the trial court should have granted the motion to dismiss on speedy-trial grounds and reversed and dismissed the case. This court held that the time spent on the state’s appeal was excluded, and even excluding that amount of time, the State took too long. Thornton v. State, 317 Ark. 257, 878 S.W.2d 378 (1994).

Cherry distinguishes his case from that of Thornton by stating that Thornton had been dismissed and was freed from state custody. Cherry further argues that under United States v. Loud Hawk, 474 U.S. 302 (1986), his Sixth Amendment right to speedy trial had been violated. This court cited Loud Hawk in Thornton stating:

It is also settled that, for Sixth Amendment purposes, the appeal time, during which Thornton’s felony charge had been dismissed freeing him of all liberty restrictions, should be excluded from the length of delay considered under the Speedy Trial Clause.

Thornton v. State, supra; Loud Hawk, supra. The United States Supreme Court in Loud Hawk held that “an interlocutory appeal by the Government ordinarily is a valid reason that justifies delay,” however, there are three factors that are to be considered in determining whether a government interlocutory appeal would qualify as a good reason for delay, (1) the strength of the Government’s position on the appealed issues; (2) the importance of the issue in the posture of the case; and (3) in some cases — the seriousness of the crime. Loud Hawk, supra; Barker v. Wingo, 407 U.S. 514 (1972). Cherry asserts that if this tripartite analysis is applied to this case, it would be clear that the State’s appeal would not have weighed in its favor. However, the Sixth Amendment issue was not raised below.

We cannot consider arguments raised for the first time on appeal. Hill v. State, 341 Ark. 211, 16 S.W.3d 539 (2000); Wallace v. State, 326 Ark. 376, 931 S.W.2d 113, (1996). Even a constitutional argument, raised for the first time on appeal, will not be addressed. Claiborne v. State, 319 Ark. 537, 892 S.W.2d 324 (1995). We are therefore precluded from addressing these arguments on appeal. Woods v. State, 342 Ark. 89, 27 S.W.3d 367 (2000).

Cherry asserts that the factor weighing most heavily against the State in this matter is the fact that Cherry was incarcerated while the State took its appeal, unlike the defendants in Thornton and Loud Hawk. Cherry contends that where the State takes a discretionary and unnecessary appeal while the defendant is incarcerated, the time should be held against the State for purposes of the speedy-trial calculation. Therefore, Cherry argues this case must be reversed and dismissed.

However, this court does not accept such an argument. Under Ark. R. Crim. P. 28.3(h), other periods of delay for good cause are excluded in computing the time for trial. Therefore, we hold that the speedy-trial clock was tolled during the pendency of the State’s appeal to this court. We allow the State to bring appeals to this court; therefore, logical reasoning would adhere to the speedy-trial clock being tolled during such matters. Further, this court will not address the factors set forth in the United States Supreme Court case of Loud Hawk since Ark. R. Crim. P. 28.3(h) controls. Therefore, we affirm the trial court’s order denying the speedy-trial violation.

Motion for Continuance

Before retrial on November 26, 2000, Cherry moved for the allocation of $10,000.00 to hire a pathologist, who was needed because the state’s pathologist had testified in the first trial that the victim has suffered from sickle cell anemia which contributed to her death. However, just how large a factor the sickle cell anemia played in the victim’s death could not be estimated by the state’s pathologist. Cherry’s motion for allocation was granted, but was limited to $5,000.00, on December 12, 2000.

In a pretrial hearing, held two days before trial, on January 22, 2001, Cherry moved for a continuance in order to obtain the services of a pathologist knowledgeable in sickle cell anemia. Cherry explained that he ran into great difficultly in finding such a pathologist, and could not find one in Arkansas, but Cherry did locate an expert in Georgia. This expert would talk with Cherry, and asserted his testimony would be relevant to purposefulness. Cherry argued that the testimony by such expert would be relevant to premeditation and deliberation. Cherry entered into the record an affidavit by the pathologist, Geral T. Gowitt, M.D., who was at the time the Chief Medical Examiner for DeKalb County, Georgia. He had reviewed the autopsy report, the police file with photographs, but had not reviewed the slides produced by the Arkansas Medical Examiner. Dr. Gowitt’s fee was $250.00 an hour, with a minimum retainer of $2,500.00. Based on his preliminary review of this case, he believed he could be of substantial assistance to the defense. However, he was unable to testify without payment of his retainer and four to five months advance notice of any trial date. At this pretrial hearing, the trial court denied the motion for continuance.

On the day of the trial, Cherry renewed his motion of continuance and entered into the record an affidavit from the Public Defender Commission, stating that the funds for the hiring of expert witnesses had already been depleted. Again, the motion was denied by the trial court.

In deciding whether to grant or deny a motion for a continuance, the trial court should consider the movant’s diligence, the probable effect of the testimony at trial, the likelihood of procuring the witness’ appearance at trial, and the filing of an affidavit stating the facts that the witness would testify to along with a statement that the affiant believed the facts to be true. Anthony v. State,339 Ark. 20, 2 S.W.3d 780 (1999). A lack of diligence alone is sufficient basis to deny a motion for a continuance, and the burden of showing prejudice rests of the appellant. Anthony, supra.

The law on continuances for the lack of a witness is contained in Ark. Code Ann. § 16-63-402(a) (1987) and Arkansas Rules of Criminal Procedure 27.3. The following factors are to be considered by a trial court faced with a motion for a continuance for the lack of a witness:

(1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. To demonstrate error on appeal, an appellant must show that he or she was prejudiced by the trial court’s denial of the continuance.

Dyer v. State, 343 Ark. 422, 36 S.W.3d 724 (2001); Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998); Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997).

Cherry contends that all of these factors in this case are present and are in appellant’s favor. Cherry asserts that he tried to find a forensic pathologist familiar with sickle cell anemia, however was unable to locate such an expert without assurances that he would be able to pay. Nevertheless, Cherry did locate the pathologist in Georgia who stated the probable effect of the testimony at trial, and he set forth the witness’s availability.

Cherry asserts that prejudice was shown by appellant’s inability to seriously attack Dr. Erickson’s, the State’s expert, testimony that Cherry had to have applied pressure continuously to the victim’s neck for several minutes somewhat short of four minutes in order to cause her death. This permitted the State an easy inference of a purposeful mental state, which was required to convict under the charge because there was nothing to rebut the testimony. Cherry further argues that the State, in its closing argument, made certain references to the expert called by the State and how he was the “only one who testified.” Therefore, the denial of Cherry’s continuance also amounted to a denial of an expert witness to an indigent who needed the use of such expert.

The State asserts that the trial court did not abuse its discretion by denying Cherry’s motion for a continuance because Cherry did not diligently obtain the expert’s testimony. The State explains that a new trial was ordered on September 23, 1999, and the grant of a new trial was affirmed on September 7, 2000. The State argues that Cherry’s motion, made two days before trial, was hardly diligent, because he had more than five months in which to procure the services of an expert witness. His lack of diligence, therefore, was itself a sufficient basis for the trial court to deny his motion for a continuance. Furthermore, the State contends that regardless of the financial status of the Commission, the record shows that Cherry did not even locate the expert until shortly before trial.

This Court’s review of the denial of a motion for a continuance is under the abuse-of-discretion standard. Anthony v. State, supra. This court shall grant a continuance only upon a showing of good cause and only for so long as it is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case. Ark. R. Crim. P. 27.3 (2001). An appellant must not only demonstrate that the trial court abused its discretion by denying the motion for a continuance, but also show prejudice that amounts to a denial of justice. Anthony, supra.

We hold that the trial court did not abuse its discretion by denying Cherry’s motion for a continuance. Furthermore, the trial court’s denial demonstrated no prejudice to Cherry. Cherry had the opportunity to cross-examine the State’s expert witness to discredit his findings, and was allowed the opportunity to hire his own expert. Cherry only brought this motion for a continuance two days before retrial was to begin, when he had five months to procure such an expert. Furthermore, in the affidavit by the expert, it was only stated that he would be of substantial assistance to the defense. He did not state specific instances in which he would testify to, not did he state what he would testify to. Here, Cherry cannot show the trial court abused its discretion by denying the motion for continuance, nor can he show prejudice that amounted to a denial of justice; therefore, we affirm the trial court’s order denying the motion for a continuance.

Cross-Examination During Sentencing Phase of Retrial

Cherry did not testify during the guilt phase of his trial, but he did testify in his own behalf during the sentencing phase of his trial. During his testimony, he sympathized with the family of the victim, but did not take responsibility for the death, stating “I can’t say anything but I never touched Jerri. And that’s the truth.” On cross-examination, the prosecutor started off with the following question: “So, Mr. Cherry, all these witnesses came in here and lied.” Defense counsel objected to this line of questioning on the basis that the cross-examination concerned the state’s case-in-chief. The trial court overruled the objection, and the prosecutor then went on to discuss the evidence introduced by the State in the penalty phase.

Cherry asserts that in the penalty phase of a criminal trial, the issue to be decided is the sentence the jury will assess. State v. Robbins, 343 Ark. 262, 27 S.W.3d 336 (2001). Cherry argues that the line of questioning by the prosecutor had nothing to do with the sentence Cherry was to be assessed by the jury or his credibility, but rather was a rehash of the state’s evidence introduced in the guilt phase with Cherry’s reaction to such evidence.

The State continued to cross-examine appellant, confronting him with the evidence against him, and the trial court permitted the appellant to maintain a continuing objection to the State’s line of questioning. The State argues that evidence introduced in the guilt phase may be considered by the jury in the sentencing phase, regardless of whether it is introduced in the sentencing phase. Ark. Code Ann. § 16-96-101(2) (Supp. 2001). Furthermore, the rules of evidence do not apply in sentencing proceedings. Ark. R. Evid. 1101(a)(3) (2001). The State claims that Cherry denied that he had committed the murder for which he had just been convicted. Because he made that denial on direct examination, it was permissible for the State to cross-examine his claim of innocence in light of the evidence that the jury found persuasive enough to satisfy them beyond a reasonable doubt that he had purposefully killed the victim. The State argues, therefore, that the trial court did not abuse its discretion by allowing the cross-examination.

We find no error in allowing such cross-examination. Cherry decided to testify on his own behalf during the sentencing phase of his retrial, therefore was subject to cross-examination on his testimony. Furthermore, because of Cherry’s testimony, the State has the right to cross-examine him on his claim of innocence. Therefore, we affirm the trial court’s order allowing the State to cross-examine Cherry during the penalty phase of his trial.

In conclusion, we affirm the trial court’s order denying Cherry’s motion to dismiss on speedy-trial grounds, the trial court’s order denying Cherry’s motion for a continuance, and the trial court’s ruling in allowing the State to cross-examine Cherry during the penalty phase of his trial.

Affirmed.


source: Caselaw Access Project

author: T OM Glaze, Justice.

license: Public Domain

text:
    STATE of Arkansas v. DIAMOND LAKES OIL COMPANY
    01-760
    66 S.W.3d 613
    Supreme Court of Arkansas
    Opinion delivered February 14, 2002

      Mark Pryor, Att’y Gen., by: Charles L. Moulton, Ass’t Att’y Gen., for appellant.

      Friday, Eldredge & Clark, by: Diane S. Mackey and Kelly M. McQueen, for appellee.
   T OM Glaze, Justice.

This case involves the cleanup of an environmentally contaminated gas-station site, and it requires us to interpret our statutes regarding when a period of limitations commences. Jurisdiction is in this court pursuant to Ark. Sup. Ct. R. l-2(b)(6).

The gas station at issue here is a Citgo facility, located at 498 East Page Street, in Malvern. As early as 1991, neighbors had complained of gasoline odors coming from the vicinity of the East Page Citgo. The Arkansas Department of Environmental Quality (“ADEQ”) conducted soil and water tests that showed some contamination; for unknown reasons, however, ADEQ took no further action with respect to this contamination and required no remediation at that time. In May of 1992, Ronnie Waggoner, the president of Diamond Lakes Oil Co., purchased the Citgo station; at the time, he was aware of the 1991 ADEQ investigation. In 1994, ADEQ received another complaint about gasoline smells around the area, and it ordered another assessment of the property. The East Page Citgo again passed the tank and line tightness tests, and ADEQ informed Waggoner that the station was in compliance; according to Waggoner, that was the last he heard from ADEQ until 1997.

In 1997, Sabrina Fleming, a homeowner whose property adjoined the Citgo property, filed a complaint with ADEQ, alleging that there was gasoline leaking onto her land. ADEQ undertook another investigation of the Citgo property, and at that time, discovered significant groundwater and soil contamination under the station. At that time, ADEQ ordered Waggoner to undertake interim corrective action under Ark. Code Ann. § 8-7-809 (Repl. 2000), which is part of the Regulated Substance Storage Tank Act. ADEQ directed Waggoner to address the contamination by taking actions such as removing the tanks, soils, lines, pumps, pump islands, and canopies. Waggoner and his company were eligible for reimbursement of costs, minus a deductible, from the Arkansas Petroleum Storage Tank Trust Fund (“the Fund”), see Ark. Code Ann. § 8-7-901 et seq. (Repl. 2000) (reimbursement costs at the time of trial were $116,000). Subsequent sampling revealed that the source of the contamination was from another gas station, the Malvern Chief, located across the street. Upon further investigation, it was discovered that underground “slugs” of contamination were migrating from the Malvern Chiefs property.

On July 15, 1998, Fleming sued Diamond Lakes, alleging that gasoline contamination from the Citgo property migrated onto her property, causing her damages. On August 18, 1998, Diamond Lakes filed an answer to Fleming’s complaint and a third-party complaint against the Malvern Chief, alleging that the Chief station’s leak resulted in gas leaking onto the Citgo property. ADEQ filed a motion to intervene in this lawsuit pursuant to Ark. Code Ann. § 8-7-908 (d)(2) (Repl. 2000), in order to protect its interests payable from the Fund.

During discovery, ADEQ learned that Diamond Lakes was seeking $472,184.95 in temporary damages, which represented the costs to clean the Citgo property, despite Diamond Lakes’ eligibility for reimbursement under the Fund. On August 10, 1998, ADEQ filed a motion for summary judgment, alleging that Diamond Lakes had brought its suit outside of the three-year statute of limitations, see Ark. Code Ann. § 16-56-105(4), and that a damage award predicated on cleanup costs was impermissible because the Fund was already reimbursing Diamond Lakes for those costs. On August 31, 2000, Diamond Lakes responded, alleging ADEQ’s motion was flawed for the following reasons: 1) Diamond Lakes’ action was not a complete cause of action before 1997; 2) the gasoline contamination was a recurring event, and therefore tolled the statute of limitations; and 3) the collateral-source rule prohibited the admissibility of evidence of the Fund’s reimbursement of the cleanup costs to Diamond Lakes.

On September 18, 2000, ADEQ filed a motion in limine to exclude Diamond Lakes’ request for remediation because ADEQ was in the process of assessing the Citgo property, and Diamond Lakes could not obtain these damages because Diamond Lakes had failed to exhaust its administrative remedies. Diamond Lakes rejoined that the exhaustion-of-remedies doctrine was not applicable, and filed its own motion in limine, seeking to exclude any evidence of the value of the property; Diamond Lakes argued that because it was only seeking temporary damages and only intended to introduce evidence of cleanup costs, the value of its Citgo property was irrelevant. ADEQ responded that the Citgo property had been appraised at $52,400 and that the cleanup costs were not a proper measure of property damages because the costs grossly exceeded the market value of the property.

On October 11, 2000, the trial court held a hearing on the parties’ motions, and, by letter order dated October 26, 2000, made the following rulings: 1) the three-year statute of limitations was applicable, but there was a fact question concerning the timing of the occurrence or reoccurrence of the event giving rise to the cause of action; 2) ADEQ’s exhaustion of remedies argument was denied; and 3) Diamond Lakes’ request to exclude the value of the Citgo property was granted.

After a trial, commencing on October 31 and ending on November 2, 2000, the jury found in Diamond Lakes’ favor, awarding it temporary (remedial) damages of $200,000 and consequential property damages in the sum of $100,000. ADEQ filed a motion for judgment notwithstanding the verdict, reasserting its arguments that the statute of limitations had barred the complaint, and that the award of temporary damages was improper because they were grossly disproportionate to the value of the property. The trial court denied the motion, and from the jury award and the final order denying the motion for JNOV, ADEQ brings this appeal.

In its first argument for reversal, ADEQ restates its contention that Diamond Lakes’ action was barred by the three-year statute of limitations found in Ark. Code Ann. § 16-56-105(4) (1987). That statute provides that “[a]ll actions for trespass on lands” shall be brought within three years after the cause of action accrues. Particularly, ADEQ argues that Waggoner knew about the existence of the contamination at least as early as 1994, but did not file his third-party complaint until 1998; in other words, ADEQ urges, the statute of limitations commenced in 1994 and barred Diamond Lakes’ cause of action sometime in 1997.

The limitation period found in § 16-56-105 begins to run when there is a complete and present cause of action, and, in the absence of concealment of the wrong, when the injury occurs, not when it is discovered. Chalmers v. Toyota Motor Sales, USA, Inc., 326 Ark. 895, 935 S.W.2d 285 (1996); Shelter Ins. Co. v. Arnold, 57 Ark. App. 8, 940 S.W.2d 505 (1997) (statute of limitations for tort actions begins to run when the underlying tort is complete). Further, if there is any reasonable doubt as to the application of the statute of limitations, this court will resolve the question in favor of the complaint standing and against the challenge. Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984).

When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense. Chalmers, 326 Ark. at 902. However, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Id. This court has held that fraud or deliberate concealment suspend the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. Id. In discussing when a negligent act occurs to begin the three-year statute of limitations, this court has previously noted that “[a]t times, the beginning of the occurrence is a law question to be determined by the court. At other times, it is a fact question for the jury to determine.” Id. (quoting Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 833 S.W.2d 366 (1992)).

ADEQ argues that Arkansas follows the “occurrence rule” to determine when the statute of limitations begins to run, and cites Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998), in support of its contentions. Further, ADEQ posits that, in trespass cases, absent fraud or deliberate concealment, the cause of action arises at the time of occurrence. Because Diamond Lakes never alleged fraud or deliberate concealment on the part of the Malvern Chief in its pleadings, ADEQ contends, the statute of limitations should have expired sometime in 1997 because Waggoner “knew, or should have known, about the trespass to his property” in 1994.

Diamond Lakes rejoins this argument by noting that the trespass in this case was “inherently concealed,” and because of the nature of the trespass, the cause of action should not have accrued until Waggoner could ascertain the full nature and extent of the injury. This so-called “discovery rule” has been previously recognized by this court on many occasions. For example, in Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999), the court stated that when an injury is suffered, no cause of action in tort begins to accrue until the plaintiff knows, or by the exercise of reasonable diligence should have discovered, the cause of the injury (emphasis added); see also McEntire v. Malloy, 288 Ark. 582, 707 S.W.2d 773 (1986) (“[a] cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s conduct”) (quoting Raymond v. Eli Lilly & Co., 371 A.2d 170 (N.H. 1977) (emphasis added).

We find application of the discovery rule to be appropriate in light of the facts presented in this case, as even ADEQ frames its argument in terms of when Diamond Lakes “knew or should have known” of the contamination. Here, the evidence demonstrated that Diamond Lakes could not have known about the cause of the contamination until 1997. Although, as ADEQ points out, Diamond Lakes’ expert, Dr. Jerry Overton, stated that the contamination had been present since at least 1994, he also testified that there was not enough information to identify the source of the pollution in 1994. He further related that information about the source was not available until 1997, when additional monitoring wells were installed at both the Citgo and the Malvern Chief properties. While the presence of contamination was known to Waggoner as early as 1994 (if not 1992, when he purchased the station), at that time, he did not know that there was anything that needed to be done to clean the site up, since ADEQ did not direct any kind of remediation until 1997. Further, in addition to not knowing the scope of the injury, Waggoner and Diamond Lakes did not know — and, according to Overton, could not have known — the cause of the injury until 1997. Specifically, until Waggoner learned that Diamond Lakes’ injury was caused by the migration of gasoline from the Malvern Chief, his cause of action had not accrued, and did not accrue until 1997.

For its second point on appeal, ADEQ argues that the trial court erred in granting Diamond Lakes’ motion in limine to exclude evidence of the market value of its Citgo property. At trial, ADEQ had sought to introduce evidence that the fair market value of the gas-station property was $52,400. In its motion in limine, Diamond Lakes had contended that, because ADEQ had ordered remediation, the property would eventually be cleaned up, and therefore the only damages it was seeking were temporary damages. The court reasoned that, because Diamond Lakes was not seeking permanent damages, the market value was irrelevant.

The trial court’s decision was correct. Arkansas Model Instruction 2224 provides that temporary or repairable damages to real property are measured by “[t]he reasonable expense of necessary repairs to any property which was damaged.” Where the damages are capable of repair, restoration costs are a recoverable element of damages for temporary damage done to property, Kutait v. O’Roark, 305 Ark. 538, 809 S.W.2d 371 (1991), and when injury to real property is temporary, the measure of damages is the cost of restoring the property to the same condition that it was in prior to the injury. Fox v. Nally, 34 Ark. App. 94, 805 S.W.2d 661 (1991) (citing C.R.T., Inc. v. Brown, 269 Ark. 114, 602 S.W.2d 409 (1980); Arkansas Western Gas Co. v. Foster, 254 Ark. 14, 491 S.W.2d 380 (1973)). In Fox, the court of appeals correctly held that the trial court did not err in excluding evidence of the before-and-after value of the land, because the damage was temporary in nature, and such evidence was not the proper measure of damages. See also Shamlin v. Shuffield, 302 Ark. 164, 767 S.W.2d 687 (1990). Here, because ADEQ mandated that the Citgo site be cleaned up, the damages were by their very nature temporary, as they would cease to exist once the environmental remediation was completed. ADEQ’s evidence about the fair market value of the property was irrelevant to what it would cost to restore the property to its former condition.

ADEQ’s third argument on appeal also pertains to the trial court’s rulings with respect to the damages awarded to Diamond Lakes. It asserts that the temporary damage award of $200,000 was grossly disproportionate to the actual value of the Citgo station ($52,400), and that where damages to real property are capable of repair, then the injured party may recover only the reasonable expense of necessary repairs. If the damages are permanent or incapable of repair, the proper measure of damages is the difference in market value before and after the injury, or diminution in value. However, quoting from Benton Gravel Co. v. Wright, 206 Ark. 930, 175 S.W.2d 208 (1943), ADEQ argues that where there is more than one method of estimating damages and either of two measures will fully compensate the injured party for his loss, that measure which is iess expensive to the wrongdoer must be adopted.

This argument again ignores the fact that it was ADEQ that ordered the remediation; Diamond Lakes had no discretion in the process. Dr. Overton, Diamond Lakes’ expert, testified that the reasonable cost of remediation, as directed by the State, was in excess of $260,000; other unreimbursed expenses exceeded $60,500. Of the former amount, ADEQ had only reimbursed $116,000 from the Petroleum Storage Tank Trust Fund. See Ark. Code Ann. § 8-7-905(d) (Repl. 2000). The jury awarded $200,000 in temporary damages. This amount was not unreasonable, because Diamond Lakes had no choice but to conduct the repairs.

In its final point, ADEQ argues that the damages sought and ultimately awarded by the jury were speculative and contingent, because those damages depended on what the State would require in the future. ADEQ points to testimony by Dr. Overton to the effect that ADEQ had not yet decided whether or not the building would have to be torn down, and that Mike Shinn, the ADEQ project manager, would have to approve any efforts made toward the cleanup. Because such requests by ADEQ for further assessment and corrective action had not been made by the time of trial, ADEQ asserts, any award of damages was based on speculation as to what ADEQ would require in the future.

However, the costs to repair or replace the property were definite and based on bids and estimates Diamond Lakes’ owner, Waggoner, had obtained. Ron Burns, one of Diamond Lakes’ expert witnesses, testified that it would take $88,000 to put the fuel system back in operation; that system had been removed at ADEQ’s direction. Dr. Overton testified, as noted above, that the environmental remediation costs alone would exceed $260,000. Other witnesses testified as to the costs necessary to get the gas station back up and running. The damage award, then, was not based on speculation, but was instead based on testimony presenting amounts either already spent on repairs, or estimates, gathered from appropriate persons, showing what future costs would be required.

Moreover, this court has held that recovery will not be denied merely, because the damages are difficult to ascertain. See, e.g., Morton v. Park View Apartments, 315 Ark. 400, 868 S.W.2d 448 (1993); Dr. Pepper Bottling Co. v. Frantz, 311 Ark. 136, 842 S.W.2d 37 (1992) (holding that this court has not insisted on exactness of proof in determining damages, and if it is reasonably certain that some loss has occurred, it is enough that damages can be stated only approximately). Here, the damages were based on actual expert-calculated figures and on expenditures already made. Therefore, the trial court did not err in denying ADEQ(s motion for judgment notwithstanding the verdict on the question of damages.

For the foregoing reasons, we affirm.

       The State also moved for a directed verdict at the close of Diamond Lakes’ case, and the trial court denied that motion as well.

       The “occurrence rule” provides that an action accrues when the last element essential to the cause of action occurs, unless the wrongdoing is actively concealed. See Ragar, 332 Ark. at 219, where this court acknowledged it had held fast to this minority rule in cases involving attorneys and other professionals, including accountants and insurance agents.

       Diamond Lakes also argues that this court should apply the limitations period found in' 42 U.S.C. § 9601 et seq., the Comprehensive Environmental Response, Compensation, and Liability Act, or “CERCLA.” However, Diamond Lakes did not raise this argument below until its response to ADEQ’s second motion for judgment notwithstanding the verdict; therefore, it is untimely, and we do not discuss it further.

       Oversight of the assessment process was required to be provided by a registered professional geologist or professional engineer, and all work plans had to be approved by ADEQ in order for the Petroleum Fund to provide reimbursement. The owner of the Malvern Chief testified that, with respect to the state-ordered remediation, he had “to do what the State says or we’re shut down or we’re fined I think $10,000 a day. . . . We have no discretion one way or the other of what to do and how to do it.”

       $260,000 + $60,500 = $320,500 - $116,000 = $204,500.


author: D ONALD L. CORBIN, Justice.

text:
    JONES RIGGING and HEAVY HAULING, INC., and Paul Kemp v. Shannon PARKER and Michael Rodney Parker
    01-770
    66 S.W.3d 599
    Supreme Court of Arkansas
    Opinion delivered February 14, 2002
    [Petition for rehearing denied March 21, 2002.]

      Friday, Eldredge & Clark, by; William M. Griffen, III and Jason B. Hendren, for appellant.

      Wright, Chaney, Berry, Daniel, Hughes & Moore, P.A., by: Don P. Chaney, for appellees.
   D ONALD L. CORBIN, Justice.

Appellants Jones Rigging and Heavy Hauling, Inc. (“Jones Rigging”), and Paul Kemp appeal the order of the Clark County Circuit Court granting Appellees Shannon Parker and Michael Rodney Parker a new trial. For reversal, Appellants argue that the trial court abused its discretion in granting a new trial on the basis of surprise, because it erroneously interpreted Ark. R. Civ. P. 59(a)(3). Appellees have filed a cross-appeal, arguing that the trial court erred during the trial in denying their motion in limine, thereby allowing Appellants to introduce extrinsic evidence to impeach a witness. This case was certified to us from the Arkansas Court of Appeals; as such, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1—2(d). We agree with Appellants and reverse.

This case stems from an automobile accident that occurred on June 25, 1996, in Caddo Valley, while Kemp was employed as a driver for Jones Rigging. At the time of the accident, Appellees were traveling north on Highway 7 when they collided with a tractor trailer driven by Kemp. Kemp, who had been sitting at a stop sign at an exit ramp off Interstate 30, was in the process of making a left-hand turn when Appellees’ vehicle collided with the truck’s right rear dual tires. Appellees admitted that just prior to the accident they had gone through the drive-through of a Taco Bell restaurant and were going to eat their food while driving to Hot Springs. Appellees initially denied being injured as a result of the accident and did not seek medical attention until later that evening.

Appellees filed a personal injury complaint against Appellants on October 1, 1997, alleging that Kemp was negligent in pulling out in front of them, thereby causing the accident and their subsequent injuries. Appellees also alleged in their complaint that under the doctrine of respondeat superior, Kemp’s negligence was imputed to his employer Jones Rigging. Discovery ensued between the parties, and Appellants provided Appellees with information regarding Jones Rigging’s status as an ICC motor carrier. In June 2000, however, Jones Rigging was dissolved, and its assets were sold. Appellants never supplemented any of their prior discovery responses to reflect Jones Rigging’s changed status.

The case went to trial on January 29, 2001. During their casein-chief, Appellees called Peter Waddell, who at the time of the accident was Director of Safety at Jones Rigging, to testify. During direct examination, Waddell testified that Jones had been dissolved and its assets sold. Waddell also testified about the creation of Sampson Heavy Hauling, d/b/a Jones Heavy Hauling. At the time this testimony was elicited, Appellees failed to object to Waddell’s testimony, nor did they seek any type of curative relief. Likewise, at no time prior to the jury reaching a verdict, did Appellees notify the court that they had been surprised by the information of Jones Rigging’s corporate status because of Appellants’ failure to supplement their discovery responses. During closing statements, counsel for Appellees told the jurors that any negligence found on the part of Kemp would be imputed to Jones Pigging as his employer; thus, the issue of the trucking company’s status was irrelevant. Moreover, the trial court instructed the jury that at the time of the accident Kemp was employed by Jones and any negligence on his part was chargeable to Jones.

The case was submitted to the jury on January 31, 2001, and they reached a unanimous verdict in favor of Appellants. Appellees subsequently filed a motion for a new trial, alleging that they were surprised by the evidence of Jones Rigging’s dissolution and ordinary prudence on their part could not have prevented such surprise. Appellees further stated that they were prejudiced by this new information, because the jury was left with the belief that Kemp would be individually liable for any judgment the jury might have awarded. Appellees also argued that they were entided to a new trial, because the trial court erred in denying their motion in limine to prevent Appellants from presenting extrinsic evidence in an attempt to discredit one of their witnesses. Appellants responded to the motion by arguing that Appellees’ failure to remedy any alleged prejudice prior to the jury reaching a verdict precluded them from seeking a new trial. Appellants also argued that they were under no duty to supplement their discovery responses, because Appellees never inquired about issues related to dissolution of the corporation.

The trial court initially denied the motion for a new trial, but Appellees then filed an amended motion, supplementing their previous motion with documentation from the Arkansas Secretary of State’s office regarding Jones Rigging’s dissolution. The trial court then granted the motion, finding that Appellees had been prejudiced by Appellants’ failure to notify them of the dissolution of Jones Rigging. Although the trial court’s order does not specifically recite the basis for granting the new trial, the language of the court’s order indicates that the new trial was granted pursuant to Rule 59(a)(3), which allows for a new trial when a party’s rights have been substantially affected due to surprise. The trial court did not address Appellees’ argument regarding the motion in limine. From this order, comes the instant appeal.

The sole issue on appeal is whether the trial court manifestly abused its discretion in granting Appellees’ motion for a new trial under Rule 59(a)(3). Appellants argue that the trial court did abuse such discretion, as it erroneously applied the provisions of Rule 59(a)(3) to the facts of this case. Appellants contend that Appellees’ failure to seek curative relief prior to the jury reaching a verdict precluded them from seeking the remedy of a new trial. We agree.

Upon review of a trial court’s grant of a new trial, this court must determine whether the trial court abused its discretion. Sunrise Enters., Inc. v. Mid-South Rd. Builders, Inc., 337 Ark. 6, 987 S.W.2d 674 (1999); Razorback Cab of Ft. Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993). Where a new trial has been granted, it is more difficult to prove that the trial court abused its discretion, as the party opposing the motion will have another opportunity to prevail. Id.; Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991). This court has held that a manifest abuse of discretion is one exercised improvidently or thoughtlessly and without due consideration. Martin, 313 Ark. 445, 856 S.W.2d 2; Security Ins. Co. v. Owen, 255 Ark. 526, 501 S.W.2d 229 (1973). Even in light of this rigorous standard, the trial court in the present case clearly abused its discretion in granting Appellees a new trial.

Rule 59(a)(3) provides that a new trial may be granted where a party’s substantial rights are materially affected by “accident or surprise which ordinary prudence could not have prevented.” In Swindle v. Lumbermens Mut. Cas. Co., 315 Ark. 415, 869 S.W.2d 681 (1993), this court reaffirmed the long-standing principle that both an objection and a request for a continuance are prerequisites to appellate review of a claim of surprise in civil cases. See, e.g., Massengale v. Johnson, 269 Ark. 269, 599 S.W.2d 743 (1980); Arkansas Power & Light Co. v. Jennings, 258 Ark. 908, 529 S.W.2d 866 (1975); National Cash Register Co. v. Holt, 193 Ark. 617, 101 S.W.2d 441 (1937). This principle was also recognized by the court of appeals in Thorne v. Magness, 34 Ark. App. 39, 805 S.W.2d 95 (1991). There, the court of appeals affirmed a trial court’s denial of a new trial where the appellant failed to request a continuance and also failed to object to the testimony he claimed was a surprise. In so holding, the court of appeals stated that a person who is surprised by his adversary’s testimony is not entided to a new trial on that ground if, rather than asking for a postponement to secure necessary evidence, he reserves his plea of surprise as a “masked battery in the effort for a new trial.” Id. at 44, 805 S.W.2d at 98 (quoting Sellers v. Harvey, 220 Ark. 541, 545, 249 S.W.2d 120, 122 (1952)).

In the present case, Appellees chose to call Waddell as a witness after noticing that he was present in the courtroom. Thereupon, the following colloquy took place between counsel and Waddell:

Q: Okay, in 1999, how long had you worked for Jones?
A: A hide over six years.
Q: And at that time, did you and the owner of the company, Mr. Dale Vinzant, jointly manage the company?
A: That’s correct.
Q: And you would supervise the truck drivers for Jones Trucking?
A: Yes, sir.
Q: And at that time, you told me you thought you were going to be the corporate representative for Jones Trucking at this trial?
A: Yes, sir.
Q: But apparently your jobs have changed?
A: Yes, sir, Jones has sold.
Q: Okay. Is there still a Jones Trucking?
A: Kind of. It’s Samson Heavy Hauling d/b/a Jones Heavy Hauling. So there is no more Jones Rigging Heavy Hauling.
Q: But there’s a corporation that has bought that —
A: It’s dissolved.
Q: The corporate entity?
A: Yes.
Q: Okay. The assets of the corporation were sold to another company?
A: Yes.

At no point during this exchange did Appellees object to Waddell’s testimony. They also did not request a continuance or seek any type of curative relief, such as a cautionary instruction from the court.

Moreover, Appellees were also responsible for introducing the offending testimony. It is well settled that a party who invites error may not complain of that error for which he or she is responsible. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992). Cognizant of this rule of law, this court similarly held that it is not an abuse of discretion for a trial court to refuse to grant a new trial on the basis of surprise where the complaining party placed the surprising information into evidence. Black v. Johnson, 252 Ark. 889, 481 S.W.2d 701 (1972). Appellees’ argument regarding Appellants’ failure to supplement discovery does not negate the fact that Appellees were the ones responsible for placing the offending testimony into evidence.

In addition to these procedural shortcomings, Appellees also failed to establish the basic elements required for the grant of a new trial. In order to obtain a new trial, Appellees must establish that their right to a fair trial was materially affected. In Suen v. Greene, 329 Ark. 455, 947 S.W.2d 791 (1997), this court reversed a trial court’s grant of a new trial after holding that the trial irregularities complained of by appellee did not “materially affect the substantial rights of [the] party” Id. at 458, 947 S.W.2d at 793 (citing Ark. R. Civ. P. 59(a); Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993)). In reversing the grant of a new trial in Suen, this court concluded that there was no possibility that the appellee was deprived of a fair trial, and thus, it was a manifest abuse of discretion to grant the motion.

When claiming that a new trial is warranted because of surprise, the moving party must also show that such surprise could not have been prevented through ordinary prudence. See Rule 59(a)(3); Black, 252 Ark. 889, 481 S.W.2d 701. The court in Black held that a new trial was not warranted where the complained of information was obtainable through the exercise of due diligence. See also Swindle, 315 Ark. 41 Ark. 5, 869 S.W.2d 681. Here, Appellees state that even if they had acted with ordinary prudence, the information related to the dissolution would not have come to their attention. This argument is without merit. Appellees could have certainly propounded further discovery prior to trial in order to inquire about the status and solvency of Jones Rigging. Moreover, Appellees could have checked with the Secretary of State’s office regarding Jones Rigging’s corporate status, as they did after the jury reached a verdict in favor of Appellants. Such actions are not outside the realm of ordinary prudence.

We are likewise unpersuaded by Appellees’ reliance on Peters, 308 Ark. 60, 823 S.W.2d 820. Appellees rely on this case for the proposition that testimony drawing attention to a party’s inability to satisfy a judgment prejudices a plaintiff s right to a fair trial, because it appeals to the sympathy of the jury. There, this court reversed the trial court and ordered a new trial after the trial court refused to allow the appellant to introduce rebuttal evidence in response to the appellee’s misleading testimony regarding his lack of insurance coverage. In reversing, this court noted that the trial court recognized that the misleading testimony had an impact on the jury, but then refused to allow the appellant to correct the misinformation. Peters is distinguishable, because the jury was left with the misperception that a verdict could financially devastate the appellee. No such misleading testimony occurred in this case; nor was there any indication that the jury was affected by Waddell’s testimony.

The trial court ruled that Appellants’ failure to timely supplement its discovery responses regarding the dissolution of Jones Rigging prejudiced Appellees. The trial court’s order, however, does not state how Appellees were prejudiced, nor is this court able to discern how such information, or lack thereof, prejudiced Appellees. A review of the record reveals that at the close of all the evidence, the trial court instructed the jury as follows:

At the time of the occurrence, Jones Rigging and Heavy Hauling, Incorporated and Paul Kemp were employer and employee. Therefore, any negligence on the part of Paul Kemp is charged to Jones Rigging and Heavy Hauling Incorporated, with respect to the claims of the Plaintiffs, Shannon Parker and Michael Rodney Parker.

During closing argument, counsel for Appellees stated:

Mr. CHANEY: One of the things that you do not have to decide, and this may make this case a little easier, the Court is telling you that any negligence on the part of the truck driver, Mr. Kemp, any negligence is charged to Jones Rigging and Heavy Hauling. So you don’t have to decide anything about [the] trucking company. It’s responsible for its drivers. That’s what that means.

And again during rebuttal, counsel stated that the trucking company had to be held accountable for the actions of Kemp. Here, the jury was clearly told that any negligence they found on the part of Kemp would be imputed to Jones Rigging. Appellees’ assertion that the jury based its verdict on sympathy for Kemp, is nothing more than mere speculation.

In sum, Appellees failed to take the necessary steps to preserve their right to claim entitlement to a new trial and also failed to prove that they did not receive a fair trial because of surprise. In Steward v. McDonald, 330 Ark. 837, 958 S.W.2d 297 (1997), this court held that a trial court’s erroneous application of the law or a rule in granting a new trial constitutes a manifest abuse of discretion. Because the trial court erroneously interpreted Rule 59(a)(3), we reverse its order granting a new trial and remand for reinstatement of the jury’s verdict. The cross-appeal is, therefore, moot and we need not address it.

Reversed and remanded; cross-appeal moot.


author: D onald L. Corbin, Justice. T OM GLAZE, Justice, R OBERT L. BROWN, Justice, R AY THORNTON, Justice,

text:
    Don WILLIAMS v. LITTLE ROCK SCHOOL DISTRICT
    01-499
    66 S.W.3d 590
    Supreme Court of Arkansas
    Opinion delivered February 14, 2002
    [Petition for rehearing denied March 21, 2002.]

      Roachell Law Firm, by: Richard W. Roachell, for appellant.

      Friday, Eldredge & Clark, by: John C. Fendley, Jr., for appellee.
   D onald L. Corbin, Justice.

Appellant Don Williams appeals the order of the Pulaski County Chancery Court dismissing tus suit against Appellee Little Rock School District (“LRSD”). For reversal, Williams argues that the chancery court erred in ruling that it lacked subject-matter jurisdiction and thereby dismissing his suit. As this appeal involves an issue of first impression and statutory interpretation, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1) and (6). We agree with Williams and, therefore, reverse and remand this matter to the chancery court.

During the 1997-98 school year, Williams was employed with the LRSD as a nonprobationary school teacher at Gibbs Elementary School. On May 4, 1998, Williams verbally informed the school’s principal, Felicia Hobbs, that he wished to resign. Hobbs, in turn, informed Williams that she needed him to submit a written resignation. The following morning, Williams contacted Hobbs and stated that he had acted hastily and wished to withdraw his resignation. Hobbs informed Williams that she had already reported his resignation to administration officials who had decided to accept his resignation. On May 28, 1998, the LRSD’s Board of Directors met and formally approved Williams’s oral resignation.

Williams subsequently filed suit against- the LRSD on January 19, 2000, claiming that the Board’s acceptance of his oral resignation was in violation of the provisions of the Arkansas Teacher Fair Dismissal Act (“TFDA”), codified at Ark. Code Ann. § 6-17-1501 to 1510 (Repl. 1999). Specifically, Williams argued that because his resignation did not comply with the TFDA’s resignation requirements, the school district’s act of accepting his resignation was void and resulted in a breach of his teaching contract. Williams sought declaratory and injunctive relief, including reinstatement to his former position and back pay. The LRSD responded with a motion to dismiss, alleging that the chancery court lacked subject-matter jurisdiction over Williams’s claim. According to the LRSD, Williams’s exclusive remedy under section 6-17-1510(d) of the TFDA was to file an appeal of the Board’s decision in circuit court within seventy-five days of the Board’s decision.

A hearing was held on the motion to dismiss, and after hearing arguments from both parties, the chancellor granted the motion. The chancellor found that the exclusive remedy provision of section 6-17-1510(d) was applicable to the present case, and thus, Williams was required to file an appeal of the Board’s decision in circuit court. In a written order filed February 5, 2001, the chancellor dismissed Williams’s claim with prejudice. From that order, comes the instant appeal.

We review a trial court’s decision on a motion to dismiss by-treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff. Goff v. Harold Ives Trucking Co., Inc., 342 Ark. 143, 27 S.W.3d 387 (2000); Arkansas Tech Univ. v. Link, 341 Ark. 495, 17 S.W.3d 809 (2000). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Id.

With this standard in mind, we turn to the merits of Williams’s argument on appeal. Williams argues that the trial court erred in dismissing his complaint on the basis of a lack of subject-matter jurisdiction because the exclusive-remedy provision of section 6-17-1510(d) is not applicable to cases involving resignations. Williams also argues that the exclusive-remedy provision presupposes notice and a hearing before the Board. The LRSD counters that the Board’s action in voting to accept Williams’s resignation amounted to a nonrenewal of his contract, and, as such, it falls within the ambit of section 6-17-1510(d). The LRSD further avers that any issues regarding its compliance with the TFDA should have been raised in circuit court within the seventy-five day time period. The issue before this court, then, is whether the exclusive-remedy provision of section 6-17-1510(d) governs in the present situation.

As this issue requires us to engage in statutory interpretation, we initially point out that the basic rule of statutory construction is to give effect to the intent of the General Assembly. Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001); NationsBank, N.A. v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001). In considering the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute must be construed in such a way so that no word is left void or superfluous, with meaning and effect given to every word therein, if possible. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, it is unnecessary to resort to the rules of statutory interpretation. Id. Where a statute is ambiguous, however, we must interpret it according to the legislative intent. Barclay, 344 Ark. 711, 42 S.W.3d 496. In reviewing the act in its entirety, this court will reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id. We also look to the legislative history, the language, and the subject matter involved. Id.

Having set forth the rules of statutory construction, we now turn to the statute itself in order to determine its applicability in the present case. Section 6-17-1510(d) provides:

The exclusive remedy for any nonprobationary teacher aggrieved by the decision made by the board shall be an appeal therefrom to the circuit court of the county in which the school district is located, within seventy-five (75) days of the date of written notice of the action of the board. Additional testimony and evidence may be introduced on appeal to show facts and circumstances showing that the termination or nonrenewal was lawful or unlawful. [Emphasis added.]

In arguing that this section applies to Williams, the LRSD focuses on the language “any . . . teacher aggrieved by the decision made by the board.” According to the LRSD, Williams was aggrieved by the Board’s decision to accept his resignation, thus he was required to file an appeal in circuit court within the prescribed time limits. This particular language must be read, however, in the context of the entire section. First, looking to the title of section 6-17-1510 it reads, “Board action on termination or nonrenewal — Appeal.” (Emphasis added.) This court has held that even though the title of an act is not part of the law, it may be referred to in order to help ascertain the intent of the General Assembly. Routh Wrecker Serv., Inc. v. Wins, 312 Ark. 123, 847 S.W.2d 707 (1993). Moreover, each of the subsections preceding subsection (d) deals specifically with instances of termination or nonrenewal. Finally, the second sentence of subsection (d) provides for the taking of additional proof on appeal, but specifically limits itself to proof on issues of termination or nonrenewal.

This court has previously acknowledged its reluctance to interpret a statute in a manner contrary to its express language unless it is clear that a drafting error or omission has circumvented legislative intent. Yamaha Motor Corp. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001); State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994). There is nothing in the language of section 6-17-1510 that either explicitly or impliedly states that the exclusive remedy of an appeal to circuit court is applicable to cases involving a disputed resignation. The fact that the General Assembly specifically stated the types of grievances that must be appealed to circuit court is a prime indicator of legislative intent; thus, we will not interpret this section in a manner that will circumvent that intent.

We are likewise unpersuaded by the LRSD’s argument that section 6-17-1510(d) is applicable because the Board’s action of voting to accept Williams’s resignation amounted to a decision to terminate his contract. In its brief to this court, the LRSD states that the Board’s action amounted to a termination of Williams’s teaching contract. In oral arguments to this court, however, counsel for the LRSD wavered when questioned about the nature of the school board’s action. Initially, counsel stated that it was the Board’s position that this was simply a situation involving a resignation, but later began asserting that the Board’s action constituted a termination of Williams’s contract. We do not agree with this assertion.

The LRSD mistakenly asserts that this court in Teague v. Walnut Ridge Schs., 315 Ark. 424, 868 S.W.2d 56 (1993), clearly implied that a board action on a disputed resignation constituted a nonrenewal of a contract. There, a teacher submitted his resignation to his principal but later attempted to revoke it. After the school district voted to accept his resignation, the appellant filed suit in chancery court requesting reinstatement to his prior position. The chancery court dismissed his complaint. On appeal, he argued that his letter was an offer to resign, capable of being revoked until the school board acted on the offer. In affirming the chancellor, this court held that section 6-17-1506 did not require the board to take any official action in response to the appellant’s resignation. Section 6-17-1506(a) (Repl. 1997) states in relevant part:

Every contract of employment made between a teacher and the board of directors of a school district shall be renewed in writing on the same terms and for the same salary, unless . . . during the period of the contract or within ten (10) days after the end of the school year, the teacher shall deliver or mail by registered mail to the board of directors his or her resignation as a teacher, or unless such contract is superseded[.]

In interpreting this section, this court stated, “[h]ad the legislature intended to require a school board to officially accept a teacher’s resignation, it could have so provided. It did not.” Id. at 428, 868 S.W.2d at 58. Thus, the appellant's action of delivering his resignation to the principal constituted substantial compliance with the TFDA’s resignation requirements.

In Higginbotham v. Junction City Sch. Dist., 332 Ark. 556, 966 S.W.2d 877 (1998), this court rejected an argument that a school board’s acceptance of a resignation that the appellant had attempted to revoke constituted a constructive termination. In that case, the school district’s superintendent sent the appellant a letter requesting his immediate resignation or face termination procedures. The appellant wrote on the superintendent’s letter that he resigned, cleaned out his office, and turned in his keys. The next day the appellant attempted to revoke his resignation, but was informed by the school district that his resignation had already been accepted. After the school board met and formally accepted his resignation, the appellant appealed to the circuit court, which held that his resignation was valid. In affirming the circuit court, this court held that the appellant’s resignation satisfied the delivery requirements of 6-17-1506. This court stated that the rule in Teague, that delivery is effective upon receipt by the superintendent, was still controlling.

If we were to now accept the LRSD’s argument that Williams’s resignation amounted to either a termination or nonrenewal, this court’s holdings in Teague and Higginbotham, that a resignation is effective without action by a school board, would be rendered meaningless. In light of the statutory language and this court’s case law, it is clear that Williams resigned his position and was not subjected to nonrenewal or termination proceedings that would have triggered the exclusive remedy provision of section 6-17-1510(d). Accordingly, Williams was not limited to pursuing an action against the LRSD in circuit court within the seventy-five day time period. Accordingly, we reverse the chancery court’s finding that it lacked jurisdiction over Williams’s claim.

Finally, we take this opportunity to clarify an aspect of our law with respect to the TFDA, specifically the compliance standard set forth in section 6-17-1503. At the time that Williams’s cause of action arose, section 6-17-1503 provided:

This subchapter is not a teacher tenure law in that it does not confer lifetime appointment nor prevent discharge of teachers for any cause which is not arbitrary, capricious, or discriminatory. A nonrenewal, termination, suspension, or other disciplinary action by a school district shall be void unless the school district strictly complies with all provisions of this subchapter and the school district’s applicable personnel policies. [Emphasis added.]

Relying on this section, Williams alleges that the school district’s action in accepting his resignation was void because it failed to strictly comply with the requirements for a resignation set forth in section 6-17-1506. Such reliance is misplaced, however. Turning again to the principles of statutory construction and giving the words of this section their ordinary and usually accepted meaning, it is apparent that the General Assembly’s intent was to require strict compliance by the school district with the TFDA in the enumerated instances: nonrenewal, termination, suspension, or other disciplinary actions. This interpretation is reinforced when considered in light of the TFDA’s underlying purpose, namely to protect teachers in their jobs from arbitrary and capricious actions committed by the school district. The purpose of the TFDA is not to protect teachers from their own actions.

In Teague, 315 Ark. 424, 868 S.W.2d 56, this court recognized that where there is a disputed resignation, the issue on review is whether the teacher substantially complied with the resignation procedures of section 6-17-1506. As previously pointed out, the Teague court held that a school board need not take any official action in order for a resignation to be deemed effective. If no school board action is required for a resignation to become effective, then it cannot be said that a school district’s failure to strictly comply with the resignation procedures automatically results in a resignation being voided.

Part of the current confusion over this issue may well stem from this court’s opinion in Higginbotham, 332 Ark. 556, 966 S.W.2d 877. There, this court initially stated that the appellant’s reliance on the strict-compliance provision was misplaced. “This standard of strict compbance does not, however, aid Appellant in his argument on appeal, as he was not involuntarily terminated from his position, but instead, resigned.” Id. at 565, 966 S.W.2d at 881. The court in Higginbotham recognized that Teague was decided under a substantial-comphance standard, but then attempted to distinguish the two cases, ultimately holding that receipt of a resignation by a superintendent constituted strict compbance under the TFDA. This holding was inaccurate for two reasons. First, Teague and Higginbotham are not distinguishable. Both cases involved disputed resignations and their subsequent effectiveness. Moreover, both cases were decided after Act 625 of 1989 instituted a strict compliance standard in nonrenewal, termination, suspension, or disciplinary cases. The only distinction in these two cases is that the court in Teague clearly recognized that strict compliance was not the applicable standard in resignation cases, while there was some confusion on the issue in Higginbotham. Therefore, that portion of Higginbotham that mistakenly applies a strict-compliance standard for resignation cases is hereby overruled.

We thus reverse and remand this case to the chancery court for proceedings consistent with the foregoing opinion.

GLAZE and IMBER, JJ., concur.

Brown and Thornton, JJ., dissent.

T OM GLAZE, Justice,

concurring. I join the majority opinion in this case, but add the following reasons. Arkansas Code Annotated section 6-17-1506 (Repl. 1997) sets forth the procedures by which a teacher is to tender his or her resignation. That statute provides that teacher contracts are to be renewed every year, in writing, on the same terms and for the same salary for the next school year, unless

[djuring the period of the contract or within ten (10) calendar days after the end of the school year, the teacher shall send by certified or registered mail to the president, vice president, or secretary of the board of directors of the school district, with a copy to the superintendent . . . his or her resignation as a teacher.”

§ 6-17-1506(a)(2) (emphasis added).

As noted by the majority, the strict compliance standard found in Ark. Code Ann. § 6-17-1503 does not apply in resignation situations. See Teague v. Walnut Ridge School District, 315 Ark. 424, 868 S.W.2d 56 (1993) (where the issue is a disputed resignation, the issue on review is whether the teacher substantially complied with the resignation procedures of § 6-17-1506). Here, however, in my view, Williams failed to substantially comply with those procedures. Williams tendered an oral resignation to the principal of the school where he taught, instead of mailing a written notice to the president of the school board with a copy to the superintendent. By way of contrast, in Teague, supra, the teacher sent a letter to the principal, and that letter was given to the school superintendent, who communicated the resignation to the school board members. In Higginbotham v. Junction City School District, 332 Ark. 556, 966 S.W.2d 877 (1998), the teacher signed his name to a resignation letter, and the superintendent then notified the board members of Higginbotham’s resignation that night by telephone. Here, Williams attempted to tender to the school principal an oral resignation, and the principal conveyed that oral resignation to “administration officials.” There was no written resignation, and there was nothing conveyed to the superintendent. This attempted resignation was void because it failed to substantially comply with the statute. I believe the trial court was wrong in dismissing his complaint for this reason as well.

Imber, J., joins this concurrence.

R OBERT L. BROWN, Justice,

dissenting. Two things concern me about the majority opinion. The first is that the majority analyzes this case as if it were merely a resignation case and, thus, not covered by the Teacher Fair Dismissal Act. This case is not a resignation case. It is a disputed resignation case where the teacher reneged on his resignation, and the School Board took action and accepted it anyway. This equates to a termination. Williams, in his response to the motion to dismiss, referred to it as a termination where strict compliance with the Act was required. And the chancery court likewise found that the School Board had terminated Williams’s employment.

This leads to my second concern which is that Williams filed his complaint as a violation of the Teacher Fair Dismissal Act. He now seeks to distance himself from the Act for purposes of the statute of limitations. In his complaint, Williams initially stated that the Act governs resignations and then alleged:

12. The acceptance of Wiliams’s oral resignation is in violation of the Teacher Fair Dismissal Act and, therefore, a breach of the 1997-98 employment contract.

Williams then prayed for a declaration that the School Board’s action in accepting his resignation was unlawful and asked for reinstatement and back pay. The School District moved to dismiss the complaint under Ark. R. Civ. P. 12(b), as untimely. As the majority correctly points out, in our analysis under Rule 12(b), we accept the allegations made in the complaint as true. Williams’s complaint manifestly asserted that the School Board’s action, in accepting a resignation that he had rescinded, wronged him.

So what is his remedy? When a teacher is “aggrieved” by School Board action, the recourse is spelled out in the Teacher Fair Dismissal Act:

(d) The exclusive remedy for any nonprobationary teacher aggrieved by the decision made by the board shall be an appeal therefrom to the circuit court of the county in which the school district is located, within seventy-five (75) days of the date of written notice of the action of the board. Additional testimony and evidence may be introduced on appeal to show facts and circumstances showing that the termination or nonrenewal was lawful or unlawful.

Ark. Code Ann. § 6-17-1502(d) (Repl. 1999). Clearly, Don Williams alleged in his complaint that he was aggrieved by the School Board’s acceptance of his resignation, which he tried to retract. Clearly, he invoked the Teacher Fair Dismissal Act for relief. Clearly, under the Act, he had to bring his appeal within 75 days of the School Board’s action. And clearly, Williams at least, believed that this was a termination case under the Act because he referred to it as such in his response to motion to dismiss.

This court decided an almost identical case four years ago. See Higginbotham v. Junction City Sch. Dist., 332 Ark. 556, 966 S.W.2d 877 (1998). In that case, as in the present case, a superintendent resigned and then the next day attempted to withdraw the resignation. The School Board, however, accepted the disputed resignation. The superintendent appealed the circuit court’s affirmance of the School Board action to this court, and we affirmed as well. In doing so, we concluded that this fact situation fell within the purview of the Teacher Fair Dismissal Act. We said:

We recognize that strict compliance is now the standard for determining if Appellant’s resignation was proper according to the language found in section 6-17-1506. Under the facts as stated in this case, the District strictly complied with the Teacher Fair Dismissal Act when it voted to accept Appellant’s resignation, which was effective upon delivery to Kelly.

Higginbotham, 332 Ark. at 568, 966 S.W.2d at 883. In effect, we treated a disputed resignation as a termination.

Now, a majority of this court has changed its mind and concludes that this disputed resignation in the Williams case does not fall under the aegis of the Teacher Fair Dismissal Act at all for purposes of the 75-day time limit for appeal, and we overrule Higginbotham in part. I would adhere to precedent, which was well reasoned, and not depart from the Higginbotham rationale that a disputed resignation is governed by the Act.

Williams did not file his complaint until more than a year and a half after the School Board’s action, when the Act calls for filing within 75 days. Now, according to the majority, disputed resignations, which a School Board has accepted, can be left hanging for five years, which is the statute of limitation for breach of contract. That kind of uncertainty is not what the Act contemplates. I would resolve this case by deciding that the disputed resignation is comparable to a termination under the Act and enforce the 75-day limit.

One final point. This decision today could well come back to haunt this court in a later case when it is to a teacher’s advantage in a disputed-resignation case to be covered by the Teacher Fair Dismissal Act. As I read today’s decision, that can no longer be the case.

I respectfully dissent.

Thorton, J., joins.

R AY THORNTON, Justice,

dissenting. On the issue of whether the ATFDA applies to Mr. Williams’s resignation, I respectfully dissent. Williams appeals the chancery court decision by claiming that his oral resignation is both within and outside the provisions of the ATFDA, and the majority agrees. Specifically, the majority holds that the ATFDA applies to acceptance of a proffered oral resignation but that the exclusive remedy clause within the ATFDA does not apply to resignations. It is the unequal application of the statute with which I disagree.

In my view the ATFDA must either (1) apply to both the submission of a resignation and the appeal from a ruling on such resignation, or (2) not be applicable to a submission of a resignation and therefore not applicable to an appeal from a ruling on such resignation. The statute is either applicable, or it is not. I am mystified that today’s majority decision determines that ATFDA is both applicable and inapplicable to exacdy the same circumstances.

If the ATFDA is not applicable to resignations, then an oral resignation is fully effective when it is tendered without any requirement of School Board action. Teague v. Walnut Ridge Schs., 315 Ark. 424, 868 S.W.2d 56 (1993). If however, an oral resignation triggers the application of the ATFDA, thereby giving Williams rights not otherwise available, Williams’s appeal from School Board action must be controlled by the provisions of the ATFDA providing an exclusive statutory means for effecting such an appeal.

In my view, Williams cannot have it both ways. Either the ATFDA applies or it does not. I know of no legal principle that allows an individual to reap the benefits conferred by a statute without being bound by that statute’s carefully expressed requirements.

I respectfully dissent.

I am authorized to state that Justice BROWN joins this dissent.

       The General Assembly amended section 6-17-1503 in Act 1739 of2001 to require that the school district substantially comply with the provisions of the TFDA.