author: Marian F. Penix, Judge. James H. Pilkinton, Judge,

text:
    Paula Dier BALDWIN v. William Y. BALDWIN, Jr.
    CA 79-81
    587 S.W. 2d 592
    Opinion delivered September 12, 1979
    [Petition for rehearing denied] and released for publication October 17, 1979

      Whitt & Donovan, for appellant.

      Ike Allen Laws, Jr. and William S. Swain, for appellee.
   Marian F. Penix, Judge.

This case was appealed to the Arkansas Supreme Court and by that court assigned to the Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

The appellant, former wife of the appellee, brought action in the Yell County Chancery Court for a partition sale of 27 acres of land the parties owned in Yell County. A Florida divorce decree, dated May 16, 1974, as partial lump sum alimony awarded the wife use and possession of the property for life or until she should remarry. She was directed to make the mortgage payments, and the decree provided she would receive equity credit for all payments made by her and also equity credit for any increase in the value of the property during her use and possession.

The defendant appellee was served in Texas by notice from an attorney ad litem and and filed an answer in the case by his Texas attorney, Roland J. Bellard, in which it was stated the attorney was a part owner of the property. The answer was on behalf of both the appellee and Mr. Bellard, although Mr. Bellard had not been made a formal party. Subsequently an agreed partition decree for sale of the property was ordered and the finding made that appellant and the appellee’s successor were the owners of the property, the land was not susceptible to division in kind without prejudice, and the property should be sold at public auction by a commissioner appointed in the decree.

At the sale the appellant purchased the property for $28,100 and the sale was confirmed by the court by order filed February 14, 1978. A separate order filed on the same date directed payment of attorney fee and costs out of the proceeds, allowed appellant reimbursement for mortgage payments, taxes, insurance premiums and part of her expenditures for bushhogging and clearing. However, there was error in the net figure stated in the order for disbursement for appellee’s interest. No pleading attempted to set out the respective interests of the parties and the order of sale did not definíate the interests.

Appellee petitioned the court to correct the order for distribution to increase the amount of his one-half of the net proceeds to $8,040.98 from the figure of $1,126.73 previously ordered. An amendment to that petition requested the name of Roland J. Bellard, attorney for appellee, be included along with the name of the appellee. As a commissioner’s deed had already been issued to appellant the petition asked that both Bellard and appellee be deemed to have an equitable lien on the property for their distributable share.

In a response to the petition filed on April 7, 1978 the appellant conceded there was an additional balance distributable for the appellee’s interest in the land, but alleged appellee was more than 12 weeks in arrears on the weekly child support payments the appellee had been ordered to pay to appellant for the support of the three children born of the marriage. The response alleged the deed from appellee to his attorney, Bellard, dated September 19, 1977, purporting to convey an undivided one-half interest in the property was given after appellee was served with notice of this action, that the court should declare a constructive trust for the use and benefit of the children over the monies representing the net proceeds for appellee’s interest in the property. The report of the attorney ad litem reflects the appellee received the notice of suit with copy of the complaint three days prior to the date of the deed to Bellard.

On July 11, 1978 the court entered judgment correcting the prior order of distribution by awarding Roland J. Bellard judgment for the net additional sum of $6,914.25 with interest at 6% from February 14, 1978, declaring a lien on the land and ordering sale of the land if the judgment should not be paid in thirty days. The judgment made no order as to the appellant’s petition to have a constructive trust declared upon the net funds from the sale of appellee’s interest in the property.

We find the final order of the court, dated July 11, 1978 accurately corrected the amount distributable for appellee’s net interest in the sale proceeds except for any set-off to which appellant was entitled for any arrears in child support due appellant from the appellee.

This appeal, being from the chancery court, is heard de novo in this court.

The court should have treated the petition for a constructive trust as a petition to permit appellant to have a set-off for any delinquent child support payments to date of judgment against the $6,914.25 balance of net proceeds distributable to appellee and/or his successor in title.

Roland J. Bellard received the deed from the appellee for the latter’s interest in the property after the commencement of this action and represented both the appellee and himself in the action. It can be fairly inferred from the record Bellard took his deed with knowledge of the pendency of the action and burdened with such charges against the net proceeds as might arise out of the action. Also, the record is not clear as to whether Bellard took the deed in trust for appellee or just what are the respective interests of appellee and Bellard in the net proceeds. One pleading filed by Bellard prayed that both the appellee and Bellard be granted an equitable lien on the property and the names of the two be treated jointly in the action.

The case is reversed and remanded with the following directions:

(1) The amount of arrears in child support, if any, be determined as of July 11, 1978 and set-off against the distributable sum of $6,914.25 found in the judgment. Any delinquent amount of child support should be determined by stipulation of the parties or after hearing evidence.

(2) Any residue of the amount distributable should be ordered disbursed jointly to the appellee and Roland J. Bellard, unless a written stipulation executed by said parties providing for some other method of distribution is filed or unless a hearing is held to determine who should receive the net remaining sum to be awarded.

(3) Any further court decree shall reflect the sale and commissioner’s deed so as to convey all the interest of the appellee and Roland J. Bellard in the property to the appellant, Paula Dier Baldwin, and so that the pleadings filed by Bellard operate to make him a party to the suit and give the court jurisdiction over him and his interest in the property.

Reversed and remanded.

Pilkinton, J., concurs.

Howard and Newbern, JJ., dissent.

James H. Pilkinton, Judge,

concurring. I concur in the results reached by the majority for the following reasons. Immediately after this suit was filed, and Mr. Baldwin was notified as provided by law, he conveyed his interest in this Arkansas property to Roland J. Bellard, his Texas attorney. This was probably a thinly veiled effort to hinder or defeat any claim Mrs. Baldwin might make for past due child support. Be that as it may, it is clear that thereafter both Mr. Baldwin and Mr. Bellard entered their appearance in this case. Their answer, and all other pleadings filed by them, are general and not limited. In addition, they are asking the court for a money judgment and other relief.

When Mr. Baldwin and Mr. Bellard filed their motion asking the trial court to correct an error in the order of distribution, Mrs. Baldwin responded by requesting credit, and other relief, for unpaid child support due under the Florida divorce decree. Neither Mr. Baldwin nor Mr. Bellard denied that she was entitled to be heard on this. The trial court never did pass on this phase of the matter, but left this issue hanging and unresolved.

There is a substantial amount of money still under the control of the trial court, which has not been distributed, and which Mr. Baldwin and Mr. Bellard are seeking to obtain. This $6,914.25 is subject to the orders of the court until finally disbursed. The interest of Bellard is clearly subject to any claim Mrs. Baldwin may have against her former husband. See Funk v. Young, 138 Ark. 38.

Ark. Stat. (1947) §27-1125, and other provisions of our law and rules provide that set-off may be claimed; and broad discretion in such matters is given to the court. The code practice is liberal with regard to amendments. Pulaski County v. Horton, 224 Ark. 864 at 871, 276 S.W.2d 706. In Horton the Supreme Court said:

We have also said that in enacting Ark. Stats., 27-1123 and other statutes relating to counterclaims and set-offs, it was the manifest purpose of the Legislature to permit litigants to settle all matters between them in a single unit. Church v. Jones, 167 Ark. 326, 268 S.W. 7; Troxler v. Spencer, 223 Ark. 919, 270 S.W.2d 936.

The 1917 amendment to what is now §27-1123, Ark. Stat. (1947) struck out a requirement that the counter claim be connected with the subject of the action.

It is my view that Mr. Baldwin and Mr. Bellard were both in court for all purposes under the circumstances; and under the state of the pleadings the Chancery Court not only had the right but the duty to fully dispose of the litigation by considering Mrs. Baldwin’s claim for what the majority properly terms a set-off for any child support that may be due.

David Newbern, Judge, dissenting. I have no quarrel with that part of the majority decision which remands the case for a determination of the extent of Bellard’s interest as opposed to Baldwin’s. I do, however, find objectionable the use of the “de novo review” authority to permit a set-off of the allegedly overdue child support payments. The appellant did not ask any consideration of that claim until she realized that the original distribution was erroneous in a way that was greatly to her advantage, and that thus she would have to give up some of the funds erroneously distributed to her by the court’s order. In effect, she was commencing a brand new lawsuit at that juncture. Her child support claim was far afield of her original pleading in her partition action. It would have been error for the trial court to have entertained it when it was presented, and it is error for us to do so now. See, Gardner v. Farmers Electric Co-op, Corp., 232 Ark. 435, 338 S.W. 2d 206 (1960).

Even more troublesome than this erroneous refusal to apply the well known applicable rule of pleading is the error this holding will precipitate in the area of jurisdiction. The chancellor had no jurisdiction of Mr. Baldwin with respect to any claim or judgment for child support the appellant may have had. The chancellor apparently disregarded the appellant’s child support allegations, and thus Mr. Baldwin properly does not raise, on this appeal, any question about jurisdiction. I must address it, however, as in its zeal to get a “morally correct” result in this case by protecting the right of the appellant to some allegedly overdue payments, the majority is ordering the trial court to consider a child support claim in this lawsuit which has nothing to do with the child support claim.

The claim for child support is in personam, and thus personal jurisdiction of the defendant must abide in the court which orders its payment. 2 Nelson, Divorce and Annulment § 14.78, p. 109 (1961), citing, Southern Pac. Co. v. Zehnle, 163 F.2d 453 (1947); Grubbs v. Grubbs, 164 S.W.2d 216 (Tex. Civ. App. 1947), and see, Watkins v. Watkins, 194 Tenn. 621, 254 S.W. 2d 735 (1953). As to this ciaim, the trial court has established no such jurisdiction of Mr. Baldwin. The appellant could, of course, register any judgment she may have for child support in accordance with the provision of the Uniform Reciprocal Enforcement of Support Act, Ark. Stat. Ann. § 34-1436 (Supp. 1977), and she might obtain some relief against Mr. Baldwin in the provisions of that Act, the purpose of which was to aid spouses of persons who reside outside the state and to overcome just the problem which exists here, i.e., lack of personal jurisdiction of Mr. Baldwin.

Formerly, it could have been argued that the presence of Mr. Baldwin’s property in Arkansas, in the form of owed distribution proceeds, would have subjected that property to a claim of a personal nature if it were properly attached for that purpose. That is, however, no longer the law. Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2659 (1977).

Had the appellant sought to register a child support judgment in Arkansas or otherwise taken a direct approach to that matter, and had the court somehow obtained jurisdiction of Mr. Baldwin in that action, I believe she might have been in a good position to have complained of the conveyance from Baldwin to Bellard as fraudulent. Without any facts at my disposal with respect to that claim, of course, I can express no opinion whether any child support claim exists, whether by order, judgment or otherwise. My point is simply that the partition action should not be used as a vehicle to bootstrap jurisdiction of the defendant as to a child support claim, especially when the latter is raised for the first time after the proceeds of the sale have been distributed.

The result orientation of the majority position troubles me greatly. A strong hint of the fact that this case is being retried on appeal, and incorrectly so, is the lack of any citation to case or statutory authority in the opinion. With all due respect, I believe we should try to do as other appellate courts and make our decisions in accordance with demonstrable principles of law.


source: Caselaw Access Project

author: David Newbern, Judge. Marian F. Penix, Judge,

license: Public Domain

text:
    Larry David MILNE v. Susan Kay MILNE
    CA 79-110
    587 S.W. 2d 229
    Opinion delivered September 12, 1979
    and released for publication October 4, 1979

      Lessenberry & Carpenter, for appellant.

      Howell, Price, Howell, for appellee.
   David Newbern, Judge.

The appellant filed his complaint for divorce, alleging general indignities, on October 28, 1977. The appellee responded with her answer and counterclaim for separate maintenance (divorce from bed and board) on November 3, 1977. There was some discovery activity, and one hearing was postponed at the request of the appellant. On February 10, 1978, the appellee filed an amendment to her counterclaim, alleging the appellant committed adultery while the parties were living together as husband and wife, but still praying only for separate maintenance.

A motion to strike the amendment alleged it was improper because the appellant believed it had reference to adulterous acts by him which occurred after the parties had separated and the complaint and original counterclaim had been filed. The motion to strike urged that the appellee should not be allowed so to amend after the statutory time for filing her counterclaim had expired. The record does not disclose the disposition of that motion. The appellee’s counterclaim for separate maintenance was granted, but whether on the basis of her original allegation of indignities or on the added allegation of adultery we do not know. For our purposes, it does not matter.

For reversal, the appellant first contends his plea for a divorce on the indignities ground should have been granted. His allegations and proof were that there had been some nagging and some indiscreet remarks and actions, including attendance at Al-Anon meetings, by his wife amounting to accusations made to social acquaintances and professional colleagues and superiors that the appellant was an alcoholic. On oral argument, counsel for the appellant conceded the testimony on this was “vague.” We find no error in the chancellor’s finding that the appellant had not satisfactorily shown that indignities had been committed by the appellee. While we abhor the double standard applied in this state in contested and uncontested divorce cases, we find the law to be that, in contested cases, indignities do not exist absent “habitual, continuous, permanent and plain manifestation of settled hate, alienation and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable.” Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598 (1973), and Ark. Stat. Ann. § 34-1202 (Repl. 1962). Certainly such a standard of proof was not met in this case.

The appellant more seriously contends that he should have been granted a divorce because the appellee’s counterclaim alleged adultery which she then failed to prove. The appellant admitted at trial that he had had sexual relations with a person other than the one to whom he was married, but his point here is that his act should not be considered proven by the appellee because it occurred after the original pleadings were filed and the time for filing an answer or counterclaim had elapsed. His complicated contention is that he should be granted a divorce because the appellee has made an allegation, albeit accurate, of adultery against him but she should have been precluded from proof of it because the act occurred after the parties separated and after the time for the first responsive pleading by the appellee had passed. We attach no significance to the failure of the appellee to prove the adultery occurred while the parties were “living together,” as she alleged, as our definition of “adultery” includes sexual intercourse by a married person with a person who is not his or her spouse, regardless whether the person accused is living with his spouse.

The case coming closest to supporting the appellant’s theory is Spurlock v. Spurlock, 80 Ark. 37, 96 S.W. 753 (1906), where the Arkansas Supreme Court said, to be a ground for divorce, adultery must have occurred before the commencement of the action. This was an interpretation of Kirby’s Digest, § 2678, which is now Ark. Stat. Ann. § 34-1208 (Repl. 1962), and which says the ground must have existed within five years “next before the commencement of this suit.” We need not go into whether that statute, which is obviously just a statute of limitation, was really intended to bar an amendment to a counterclaim so that it alleges adultery which occurs after the commencement of a suit for divorce. We must keep in mind we are not evaluating the appellee’s entitlement to relief. Rather, we are trying to determine whether the appellant should have been granted a divorce because of the adultery allegation of the appellee. Even the Spurlock case said evidence of the alleged adultery was admissible, although not as a ground for divorce but to show a propensity to commit adulterous acts alleged to have occurred earlier. Thomas v. Thomas, 208 Ark. 20, 184 S.W. 2d 812 (1945), is distinguishable in the same way as Spurlock.

We hold the act of sexual intercourse admitted by the appellant to have occurred in 1978 was adultery because he was then married to the appellee. Whether or not the alleged adultery was a ground for relief to the appellee, it was surely “proven” and was clearly not without some basis in fact. To constitute a ground for divorce for the appellant, the allegation must have been unproven and made by the appellee “without basis.” Relaford v. Relaford, 235 Ark. 325, 359 S.W. 2d 801 (1962).

In addition to the Spurlock and Thomas cases, the appellant cited us to several other Arkansas Supreme Court decisions in support of his second point. Northcutt v. Northcutt, 249 Ark. 228, 458 S.W. 2d 746 (1970), held that instances of adultery alleged in a counterclaim are not prematurely alleged as long as they occurred before the counterclaim was filed. In Ward v. Ward, 249 Ark. 1001, 463 S.W. 2d 90 (1971), the Northcutt decision is cited simply for the proposition that adultery which occurs after a suit is commenced but before it is alleged in a counterclaim may properly be charged and may constitute a defense (presumably recrimination) to the original suit.

No case cited by the appellant or of which we are otherwise aware holds or even suggests that a counterclaim or a complaint, for that matter, in a divorce action cannot be amended to allege a ground for divorce which has arisen since the action was commenced. We believe the Northcutt and Ward cases should be limited to holding that parties should not be allowed to make allegations “prematurely,” as Justice George Rose Smith said in Northcutt. This only means one should not be allowed to make allegations in the hope or with the suspicion that they will come true.

Regardless of the nature of the action, a party should be allowed to amend a pleading at any time as long as it does not prejudice his adversary. See, A.R.Civ. P. 15 and supplanted Ark. Stat. Ann. § 27-1160 (Supp. 1977), the statute which was applicable at the time this case was tried. Although there was a motion to strike here, no prejudice was alleged or shown to have resulted from the amendment and no continuance was sought by the appellant.

For his third point, the appellant contents Ark. Stat. Ann. § 34-1211 (Repl. 1962), is unconstitutional because it is a gender based statute and falls within the prohibition of the equal protection clauses of the U.S. and Arkansas Constitutions, citing Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), the case which held a similar Alabama statute unconstitutional. We find we need not reach this point, and thus that we should not consider this constitutional question, absent the necessity of doing so. McNew v. McNew, 262 Ark. 567, 559 S.W. 2d 155 (1977).

There is no contention that Ark. Stat. Ann. § 34-1202 (Supp. 1977), the basic separate maintenance (divorce from bed and board) statute, is gender based. Thus, the only question becomes whether it was necessary for the court to apply § 34-1211 to make the award to the appellee of $400 per month, having granted her separate maintenance request.

The record shows the parties have two minor children and that the appellant’s salary was $38,198.00 per year at the time of the trial. The order of the court does not specify the amount of the award which is for support of the wife, or that any of it was for her direct support, as opposed to that of the children. We find, on this de novo review, that the amount awarded was not in excess of a proper amount for child support. There is no contention here that the part of § 34-1211 which provides for support of children is unconstitutional. The statute, in its direction that the court may make an order touching upon the care of children, is not at all gender based, as it refers to “the person” required to support them rather than referring to the husband or the wife.

The appellant also challenges Ark. Stat. Ann. §§ 34-1210, 1213 and 1214 (Repl. 1962). Section 34-1210 deals with temporary alimony and attorney fees for the wife. A temporary award was made in this case on November 16, 1977. It was an appealable order. Shirey v. Shirey, 79 Ark. 472, 96 S.W. 164 (1906). See also Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S.W. 2d 246 (1943). There is no evidence here that the appellant filed a notice of appeal of the court’s order within 30 days of its issuance, thus he forfeited his right to have the order reviewed. Ark. Stat. Ann. § 27-2106.1 (Repl. 1962). General Box Co. v. Scurlock, Comm. of Rev., 223 Ark. 967, 271 S.W. 2d 40 (1954). See also, White v. Avery, 226 Ark. 951, 295 S.W. 2d 365 (1956), and Brown v. Maryland Cas. Co., 245 Ark. 70, 431 S.W. 2d 258 (1968).

We are fully aware of Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979), which held § 34-1210 unconstitutional, but we hold that to obtain a review of the court’s order the appellant should have perfected a timely appeal of the temporary support order, as did the appellant in Hatcher.

We do not find that §§ 34-1213 or 34-1214 were applied in this case, and thus we need not address them.

Affirmed as modified to reflect the $400.00 monthly support payments are awarded for child support.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. I agree with the majority opinion that the wife’s allegation of adultery against the husband was not such an indignity against the husband as to constitute a ground for divorce. He admitted adultery. I must, however, dissent to the majority’s rationale and interpretation of the caselaw of Arkansas. The majority holds the chancellor properly could consider the husband’s adultery as a basis for his decree in favor of the wife.

Arkansas long has been in the forefront of those states encouraging — and even making compulsory — the inclusion in one lawsuit of all matters which might conveniently be brought in by amendment, even if they occurred long after commencement of the action. Troxler v. Spencer et al, 224 Ark. 132, 270 S.W.2d 936 (1954). However, I do not believe the law to be that voluntary sexual intercourse between a married person and someone other than his or her lawful spouse if committed for the first time after a separation brought about by other causes, is actionable adultery in a divorce suit. This adultery should only be admitted as evidence if it somehow validly is connected with the causes for the estrangement.

In Buck v. Buck, 207 Ark. 1067, 184 S.W. 2d 68 (1944), and Spurlock v. Spurlock and related causes cited in the majority opinion, as well as an annotation in 98 A.L.R.2d 1264, it is clear that Arkansas and most other courts adhere to the rule that a divorce will not be granted for causes arising after the action was commenced.

In this case Dr. Milne, the husband, left home in October, and filed his complaint for divorce a week later, and within the time for pleading the wife filed her answer and original counterclaim. Thus, this action was “commenced” long before the husband’s adultery two months later in January.

The majority opinion suggests that the Spurlock case, requiring that adultery must have occurred before the commencement of the action, was based on a misconstruction of the statute, which now is Ark. Stat. Ann. §34-1208 (Repl. 1962) which says the ground must have existed within five years “next before the commencement of this suit”. The majority reasons this is but a statute of limitation.

If anything, I believe the courts have used §34-1208 to extend time for the occurrence of grounds for divorce on to the time of commencing the action instead of the time of separation.

Our divorce courts should concern themselves with the behavior of the parties up to the time they separate. These are the facts which possibly will show the fault in the break-up of the marriage. What happens beyond the separation is irrelevant except for the limited purpose of corroborating evidence of occurrences prior to the separation. Spurlock v. Spurlock, supra.

Adultery was never a common law crime. Once it was punishable in the ecclesiastical courts of ancient England. Some of the American states have passed statutes making adultery a crime, but as far as I can determine Arkansas has never had such a statute. Cook v. State, 102 Ark. 367, 144 S.W. 227 (1912).

Dr. Milne’s sexual conduct after his separation, if unrelated to the causes of the separation, was a matter between him, his conscience, and possibly his God, but not between him and the Chancery Court of Pulaski County which has, in effect, required celibacy of Dr. Milne from separation until divorce from the bonds of matrimony, if ever.

This case should be reversed and remanded to the Chancery Court with the instructions that the added allegations of adultery should not have been considered as evidence unless casually connected to events prior to the separation.

       The Random House Dictionary of the English Language, 1976.


author: M. Steele Hays, Judge. David Newbern and George Howard, Jr.,

text:
    Lawrence Shawn COCKEREL v. STATE of Arkansas
    CA CR 79-34
    587 S.W. 2d 596
    Opinion delivered September 19, 1979
    and released for publication October 10, 1979

      John Achor, Public Defender, by: James Phillips & Jeffrey Rosenzweig, Deputy Public Defenders, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   M. Steele Hays, Judge.

This is the second appeal of Lawrence Shawn Cockerel. On December 15, 1977, appellant and Bryan Sbado were convicted of first degree battery in the shooting of Patrick Pinson on the Western Hills Golf Course. The jury fixed the punishment at four years. On appeal the Arkansas Supreme Court overturned the conviction of this appellant and affirmed the conviction of Sbado. After the reversal, the case was transferred from First Division of the Circuit Court to the Fourth Division, and hence, appellant was tried and sentenced by a different judge. The second sentence was for a term of ten years.

For reversal, appellant argues a single point — that the imposition of a greater sentence upon the second conviction is a denial of the constitutional guarantee of due process. The argument is compelling.

The matter of harsher sentences to persons convicted a second time has been the subject of much litigation and comment. The relevant constitutional questions involve double jeopardy, due process, and sometimes equal protection. The arguments were put to rest, at least for now, in the United States Supreme Court decision of Pearce v. North Carolina, 395 U.S. 711 (1968), delivered by Justice Stewart. Respondent Pearce was sentenced to 12-15 years upon a charge of assault with intent to commit rape. The conviction was overturned several years later, and upon retrial he was convicted and sentenced to an eight year prison term. It was agreed that the second term, when added to the time served under the original sentence, exceeded the original sentence. A majority of the court reaffirmed the doctrines announced in United States v. Ball, 63 U.S. 662 (1896) — that an accused is not put in double jeopardy by a retrial obtained at the request of the accused nor does the Equal Protection Clause impose an absolute bar to a more severe sentence upon reconviction. Williams v. New York, 337 U.S. 241 (1949).

But that did not end the inquiry, as the majority reasoned that it would be a violation of due process of law for an accused to be penalized by reason of having exercised a fundamental right to appeal and that such right must be free and unfettered, irrespective of whether the error of the first conviction was on the basis of constitutional or non-constitutional grounds. The opinion stated that due process requires that vindictiveness must play no part in the sentence that the defendant receives in the second trial and, further, that due process requires that the defendant be free of “the apprehension of such a retaliatory motivation on the part of the sentencing judge.” To assure the absence of such, Pearce holds that whenever a judge imposes a more severe sentence upon a new trial, the reason for his doing so must affirmatively appear and “must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding, and the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional rights of the accused may be freely reviewed on appeal.” ___

The holding in Pearce was applied by the Supreme Court of Arkansas in Marshall v. State, 265 Ark. 302 (1979). Marshall entered a plea of guilty to aggravated robbery and was sentenced to twenty years. The conviction was vacated under Rule 37 of the Rules of Criminal Procedure and Marshall was retried. He was again convicted and a sentence of thirty five years was imposed.

Noting that United States v. Tateo, 377 U.S. 463 (1964) recognized that neither the fifth amendment nor the fourteenth amendment absolutely prohibits a greater sentence on retrial because “the slate of the accused has been wiped clean” by the reversal, the court accepted the requirements of the Pearce decision and directed a reduction of Marshall’s sentence to the original sentence because the record failed to disclose any evidence of Marshall’s conduct subsequent to the original sentencing proceeding, or that he was “less credible or the crime more severe.”

This is precisely true of the record here presented. A careful search provides a resounding absence of any objective information as to the conduct of Cockerel subsequent to the first trial or, for that matter, of any data upon which it might affirmatively appear the trial court relied in imposing the greater sentence. The testimony óf Dennis Flowers was, he says, identical to his testimony at the earlier trial, and the defendant, who took the stand, testified in accord with a written statement he gave immediately after the occurrence. Nor does it ever appear affirmatively that his admission that he was a parolee from a conviction for armed robbery (prior to the shooting of Pinson) was not before the jury. In short, there is nothing in the record that complies with or even approaches the imperatives of Pearce and Marshall.

It should not be inferred that the trial court exhibited vindictiveness in the slightest degree in the sentence it imposed, nor that the sentence was intrinsically excessive (in view of the flagrant and senseless aspects of a deliberate, wanton act), except in so far as it exceeds the earlier sentence. Moreover, the trial judge’s comments in the sentencing proceedings permit no other conclusion but that he was unmindful of, or indifferent to, the Marshall and Pearce decisions.

The judgment of the lower court is affirmed with directions to modify the sentence to conform to the original sentence.

David Newbern and George Howard, Jr.,

concurring. This case presents the question of the circumstances pursuant to which a criminal defendant, whose conviction is successfully appealed, may be sentenced on retrial to a more severe punishment than that given in the first trial. We find the question difficult because of some confusion in U.S. court of appeals decisions prior to and subsequent to North Carolina v. Pearce, 395 U.S. 711 (1969), and the interpretation of Pearce by the Arkansas Supreme Court in Marshall v. State, 265 Ark. 302, 578 S.W. 2d 32 (1979). We enter this opinion because we see a need to expand upon the majority opinion to clarify the law and give guidance to Arkansas trial judges.

In this case, the appellant, along with a co-defendant, was found guilty of first degree battery in 1977. The appellant and his co-defendant were each sentenced by a jury to serve four years imprisonment. On the first appeal, the appellant’s conviction was reversed, but that of his co-defendant was affirmed in Sbabo v. State, 264 Ark. 497, 572 S.W. 2d 585 (1978). After a new trial, the appellant was sentenced by a judge, who did not participate in the original trial, to ten years imprisonment.

The battery alleged at both trials was the senseless shooting of a person who was playing golf. It resulted from the bragging and daring of some young persons who apparently “played” in or near woods adjoining the golf course which was the scene of the crime. At the first trial, there were cross-implicating confessions which left some doubt as to the degree of culpability of each of the defendants. In view of the identical four year sentences, the jury apparently was convinced the defendants were equally culpable, at least to the extent they did not take other factors into consideration in rendering the sentences.

The appellee contends the record in the second case, unlike that in the first trial, demonstrates clearly that the appellant (1) made the decision to do the shooting, (2) fired the shot which wounded the victim, and (3) precipitated the entire incident by offering to demonstrate his “bravery” in this manner the day before the shooting and on the day of the crime. For our purposes, we can assume the records of the two trials would demonstrate those differences, or at least bring greater clarity to the role the appellant played in the crime.

In his remarks at the time he imposed the sentence in this case, the trial judge alluded to these matters. To determine the intention of the trial judge, and the context in which it developed, that part of the record is set out below:

THE COURT: I’m not trying to substitute my judgment for the judgment of those twelve people, but the judgment of twelve people has been waived in this case and I’ve been asked to exercise my own judgment. And, that’s what I will do and I will not give one second’s thought to what the previous jury has done. I’ve seen a lot of jury verdicts and so have you and you will see more in which you sharply disagree with them. As a matter of fact, I had a rape case tried in here just about two or three weeks ago. I disagreed with my own jury in that case. I didn’t disturb their verdict but I disagreed with them. So, I can disagree with that jury to the extent that I think he might get a lesser sentence or a greater one. I have to search my own conscience and decide what I will do. It’s now five minutes after 10:00. At 10:35 I will make that decision . . .
THE COURT: My law clerk just made a statement to me that is about the truest statement I’ve ever heard in my life. And that is, it’s awfully bad sometimes to play God. And, as I sit here and I have this young man’s life in my hands, I suppose to some extent that is what I am being asked to do. But, when I ran for this job I suppose I took the bad along with the good. The most onerous job that a judge has is sentencing people to go to jail. I hate it. I just hate it. On the other hand, I made a commitment to the people of Pulaski and Perry counties that I would do my duty as I saw my duty and one of the most sacred parts of that duty is the protection of the people of Pulaski and Perry counties. I will as jealously protect the rights of the defendant who has been charged with a crime as any man in the world would. I’m not going to let evidence in against a defendant if that evidence is obtained through án illegal search and seizure or if it was obtained through an involuntary confession. I’m not going to let him be convicted on the basis of hearsay evidence. All the rights that inure to him inure to all of us and I will jealously guard those rights. I believe in them. But, once a determination of guilt has been made, which I have made in this case without any problem, without any reservation, my duty then switches to those of us who are out here trying to lead and live a decent life. Trying to prevent hurting people and killing people. And, it’s toward that duty that I am going to have to make this decision. I’m convinced beyond a reasonable» doubt from the evidence that Mr. Cockerel fired the shot. And he’s the one who said, “I’m going to shoot a golfer.” I think Sbabo although he’s no longer a party to this thing was an accomplice to it. It was his gun. But, whether he brought the gun down there and he sure didn’t have to shoot a golfer. The sentence that I am going to impose in this case is going to vary a great deal from the sentence that was given Mr. Sbabo. I am going, so help me God, to do my best to stop violent crimes in this community. The people who are going to commit them are on notice now that I’m going to try and stop it. The police can’t do it by themselves. Mr. Cockerel would you approach the bench please . . .

In North Carolina v. Pearce, supra, the U.S. Supreme Court attempted to settle the law as to when a greater sentence can be given in a second trial. There were conflicting U.S. court of appeals decisions which posed the need for resolution. The Supreme Court held that there is no absolute constitutional bar to a higher sentence, but due process of law requires some protection against the possibility of vindictiveness. Thus, the court said:

In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. 395 U.S. at 726.

One problem, however, results from other language of the Supreme Court in that case which indicates that the affirmative, objective information appearing in the record must be with respect to “events subsequent to the first trial that may have thrown new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ ” 395 U.S. at 723. No reference was made in the operative language of the Pearce decision to a showing that the second record contains proof that the accused’s participation in the crime was of a different quantity or quality than that shown in the first record.

In Marshall v. State, supra, the Arkansas Supreme Court quoted part of the language we quoted above from Pearce and reduced a second sentence to conform to the first one because the record did not fulfill the Pearce requirements as “ [tjhere is no evidence at all of appellant’s conduct subsequent to the original sentencing proceeding.” 265 Ark. at 306. This is the point with respect to which we feel the majority needed to be more explicit.

If we stopped, in our reading of the Marshall case, with the language quoted above, we might hold that, to justify a heavier sentence in the second trial the record must demonstrate some form of bad conduct by the appellant since his original conviction. The seeming reliance on the U.S. Supreme Court’s language indicates just that. But if we read further in the Marshall decision, we see the following:

The only additional information relative to the crime is the statement that the victim was still taking medicine. There is no indication that the appellant is less credible or the crime more severe. 265 Ark. at 306. [Emphasis added.]

This dicta thus indicates the Arkansas Supreme Court would have been willing to consider those matters even though they are outside the purview of the U.S. Supreme Court’s holding in Pearce.

We are tempted to say the Marshall holding was completely reliant on the Pearce decision, and thus it limits the circumstances upon which a stronger sentence can be given on retrial in this State’s courts to the one area delineated by the U.S. Supreme Court, i.e., finding bad post conviction conduct on the part of the accused. We are, however, unwilling to do that, as we do not think the U.S. Supreme Court meant to be that restrictive, we woiild not like it if it had, and we are encouraged by the language, quoted above, of the Arkansas Supreme Court.

The most scholarly and persuasive of the court of appeals decisions giving rise to the Pearce case is U.S. v. Coke, 404 F. 2d 836 (2d Cir. 1968), where Judge Friendly clearly considered it constitutionally permissible to base a greater second sentence upon evidence of the crime adduced at the second but not the first trial. As that case was decided before Pearce, we can only be persuaded by it to the extent it deals with something we feel the Pearce opinion perhaps did not mean to exclude as a reason for a greater sentence. We note, however, that the Coke decision requires an affirmative showing by the trial judge as to why he has levied a harsher sentence. Judge Friendly’s words are as follows:

We hold that in such circumstances a higher sentence may lawfully be imposed, provided that the judge specifies the reasons on the record. 404 F. 2d at 846.

Given the basic reason of the Pearce decision, that of avoiding vindictiveness in second trial sentencing, we find that placing this requirement on the trial judge who passes the sentence is a good idea. Vindictiveness is a personal motivation. A trial judge who passes a second sentence may be acting out of that motive even though he is not one who participated in the original trial. We do not believe it is a sufficient safeguard to say that if an appellate court can comb the record and find differences in the evidence in the two trials vindictiveness is shown to have been absent from the resentencing. Thus, we approve Judge Friendly’s seeming requirement that the trial judge state his own motives in giving a harsher sentence.

The only U.S. court of appeals case which has, since the Pearce decision, dealt with the question we face here is U.S. v. Gambert, 433 F. 2d 321 (4th Cir. 1970), where a federal court second conviction resulting in a higher sentence was reviewed and reversed. There the trial judge recited his reasons for the greater sentence, but the appellate court did not accept them as showing the crime to have been more “dastardly” than had been shown before. The point here is that the Fourth Circuit, at least, would not limit the Pearce decision to approval of greater second sentences only upon showings of bad post-conviction conduct, but would permit a higher sentence on a showing of circumstances at the second trial making the crime for which the defendant was tried seem more deserving of higher punishment. We are persuaded by this broad interpretation of Pearce, and as stated earlier, we do not feel we are any more limited than the Fourth Circuit, in view of the Arkansas Supreme Court’s language in the Marshall case.

We do, however, insist that if we are to find a basis for an increased sentence resulting from different evidence of guilt of the appellant adduced in a non-jury trial, the trial judge who imposes the sentence must articulate his reasons based on a comparison of the evidence in the second trial with that in the first. That is the best safeguard we know against vindictiveness by him, and we will not scour the record(s) in an effort to find evidence upon which we might speculate as to his reasons.

Looking back to the statement of the trial judge in this case, we are not convinced he articulated anything other than his own justification for a tougher sentence than was given the “accomplice” of the appellant. He made no comparison whatever with the sentence which was originally given the appellant. A reading of his entire speech makes it clear he wanted to demonstrate his refusal to consider the prior sentence and that his motive in assessing a long prison sentence to a young person was to help stamp out serious crime.

We think the trial judge was required to make a comparison of the new sentence with the one formerly given the accused. Just as the Fourth Circuit in Gambert, we do not see any vindictiveness in this case resulting from an appellant’s success on his first appeal. But we agree with the Fourth Circuit’s characterization of Pearce that:

In effect, it assures a defendant whose conduct after the initial sentencing does not reflect adversely upon his “life, health, habits, conduct, and mental and moral propensities,” that he has nothing to fear in exercising his right to appeal. It is our view that a defendant should not be deprived of this assurance by the failure of the judge at his second trial to acquaint himself with the results of the first. 433 F. 2d at 323.

Perhaps it could be argued that the Gambert case dealt with a purely federal conviction, and as it characterizes the Pearce decision as imposing a “procedural” requirement, the state courts are not bound and are not required to implement that requirement. It must be remembered, however, that the Pearce case reviewed state court convictions. Although the Pearce case may have gone beyond the basic constitutional geneses of the decision to impose a procedural requirement, our trial judges are and should be bound to honor that requirement.

We fully agree with the result in this case.

      Van Alstyne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Appellant, 74 Yale L. J. 606 (1965); Note, Unconstitutional Conditions, 73 Harv L. Rev. 1595 (1960).

      We are not discussing jury sentencing. There, the problem is recognized as being entirely different. See, Chaffin v. Stynchcombe, 412 U.S. 17 (1973).


author: George Howard, Jr., Judge.

text:
    Terry L. RAWLS v. STATE of Arkansas
    CA CR 79-39
    587 S.W. 2d 602
    Opinion delivered September 19, 1979
    and released for publication October 10, 1979

      Eugene Hunt, for appellant.

      Steve Clark, Atty. Gen., by: E. Alvin Schay, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Judge.

Appellant was convicted on April 29, 1977, in the Municipal Court of Monticello, of driving while under the influence of alcohol. An appeal was taken immediately to the Circuit Court of Drew County.

The criminal docket of the circuit court reflects that on September 19, 1977, appellant’s case was set for trial on September 26, 1977, and that appellant was advised by the court to notify his attorney of the trial date. The appellant nor his attorney appeared for the trial. Moreover, the docket does not reflect any action whatsoever by the court on appellant’s case on September 26, 1977. Appellant claims, however, that his attorney requested a continuance by telephone and letter. The docket does not indicate that either a continuance was requested or granted.

The docket reflects that on September 18, 1978, the circuit court affirmed appellant’s conviction. It is clear that appellant and his attorney were not present on September 18, 1978.

On January 17, 1979, appellant’s attorney received written notice of the “call of the docket” scheduled for February 1, 1979.

On February 1, 1979, appellant appeared for trial, but the court entered an order remanding the case to the municipal court upon discovering that his predecessor had affirmed appellant’s conviction as reflected by the docket entry of September 18, 1978.

For reversal, appellant asserts two points. First, appellant contends the municipal court erred in receiving testimony regarding a blood alcohol test without first having been assured that the analysis was performed according to a method approved by the State Board of Health.

Inasmuch as this issue was never considered by the circuit court, it is plain that there is no basis for appellate review of this issue.

Secondly, appellant claims that the action of the circuit court on September 18, 1978, resulting in the affirmance of his municipal court conviction denies him due process of law in view of the fact that appellant and his attorney were not properly notified of either the September 26, 1977, or the September 18, 1978, scheduled hearings.

The State argues that inasmuch as appellant was advised on September 19, 1977, that his case would be tried on September 26, 1977, and was further directed to notify his attorney of the trial date, the circuit court had the option of affirming the municipal court’s conviction at anytime, without notice, because of appellant’s failure to appear.

While Ark. Stat. Ann. §44-507 (Repl. 1964) authorizes a circuit court to affirm a judgment of a lower court if the appellant fails to appear when his case has been scheduled for trial, due process dictates that appellant be afforded proper notice and an opportunity to be heard in a proceeding involving the deprivation of life, liberty or property. Renfro v. City of Conway, 260 Ark. 852, 545 S.W. 2d 69. Moreover, Ark. Stat. Ann. §22-311 (1962 Repl.), requires that interested parties as well as their attorneys receive notice from the clerk of the court of proceedings scheduled; and that time shall be afforded counsel to prepare for trial.

We conclude that the oral notice given by the circuit court to appellant on September 19, 1977, that the case would be tried on September 26, 1977, did not comply with the requirements of Ark. Stat. Ann. §22-311 (Repl. 1962) and the requirement of due process under the Fourteenth Amendment to the United States Constitution. See: Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729 (1975).

The record reflects that the trial court manifested some uncertainty as to his power to set aside the order affirming appellant’s conviction. The Arkansas Supreme Court made it clear in Swagger v. State, 227 Ark. 45, 296 S.W.2d 204 (1965) that where a judgment is void because of want of due process of law, the judgment has no force and effect and can be vacated at any time.

Reversed and remanded to the circuit court for proceedings not inconsistent with this opinion.

      Rule 4 of the Uniform Rules for Circuit and Chancery Courts provides, in part:
      b. As soon as a circuit court trial docket is set for any given date or dates, but not later than 15 days prior to the date of trial, the Clerk shall forthwith make copies of the same, showing the case number, the style, the attorneys and the date for which each case is set. Copies shall be furnished all attorneys of record.


author: David Newbern, Judge.

text:
    Jack SIMS a/k/a Gary LAWRENCE v. STATE of Arkansas
    CA CR 79-55
    587 S.W. 2d 604
    Opinion delivered September 19, 1979
    and released for publication October 10, 1979

      John W. Achor, Public Defender, by: Jeff Rosenzweig, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   David Newbern, Judge.

The appellant was convicted and sentenced to six years imprisonment for possession of stolen property in violation of Ark. Stat. Ann. §41-3938 (Repl. 1977). At his trial, which took place March 8,1979, he was represented by counsel. On March 22, 1979, he filed a petition with the trial court to have the verdict set aside, alleging as one ground, that a person who had sat as a juror in a previous, unrelated case in which he was convicted had also sat as a juror in this case. On March 23, 1979, the appellant’s counsel filed a motion for a new trial, alleging that the juror in question had improperly remained silent when, on voir dire, he was asked if he knew the defendant. The motion alleged that the appellant heard the juror remark to other jurors that he had been a juror in the previous case. The remark was allegedly made while the jurors were retiring to begin their deliberations.

The motion also raised the question whether an. exhibit which was identified and marked as such, but which was not “introduced” into evidence, was improperly displayed by the prosecution to the jury. The issues on this appeal are those which were raised in the motion, which was denied.

First, as to the juror issue, we agree with the trial judge that the appellant has failed to raise an issue of actual or implied bias as described in Ark. Stat. Ann. §§43-1919 and 1920 (Repl. 1977), but in his motion and on this appeal, the appellant raises the more difficult question of juror misconduct. His contention is that he was effectively denied the right to challenge the juror, either for cause or peremptorily, because of the juror’s silence in response to the question whether he knew the appellant.

In support of this contention, the appellant cited Colbert v. State, 156 Ark. 98, 243 S.W. 801 (1922). In that case the Arkansas Supreme Court held it was not error to refuse a new trial even though a juror who, on voir dire, had denied knowledge of the case had sat on the grand jury which returned the indictment. The appellant cites the case for the court’s statement that “the fact that [the juror] sat did not constitute a ground for a new trial, it not appearing that he imposed himself upon the panel through concealment or prevarication. ” 156 Ark. at 102. The appellant says the inverse of this statement must also be true. To reverse this case on that proposition would require us to find the juror lied in response to the question whether he “knew” the appellant. We cannot say he lied, as the question was too broad. A juror who has sat in a previous case involving the same person as defendant may not feel he “knows” the defendant. Had he been asked if he had seen the defendant or had knowledge of any facts about the defendant, he would have been obliged to speak up. The Colbert case holds that the juror’s conduct was not sufficient basis for a new trial despite his failure to admit knowledge of the facts of the very case at hand. The court there was critical of counsel’s failure to ask the proper questions on voir dire. That case seems to be strong support for the appellee’s position here.

The appellant did not bring this matter to the attention of the trial court for some sixteen days after it occurred. It seems he did not even tell his lawyer about it but wrote a pro se petition which his lawyer later supplemented with his motion for new trial. The appellee suggests this is cause to suspect the appellant fabricated the story about the juror. Regardless of the state’s suspicion, we believe this failure to report the matter at the time it allegedly happened greatly weakens the appellant’s case. Johnson v. State, 252 Ark. 325, 478 S.W.2d 876 (1972).

Nor do we find merit in the appellant’s second point. Here again the appellant cites a case which cannot be regarded as precedent. The case, Cummings v. State, 239 Ark. 1027, 396 S.W.2d 298 (1965), involved a conviction for possession of burglary tools. A pistol was displayed by the prosecution to the jury but not introduced into evidence. The Supreme Court said “[w]e do not reverse the case because of this point; ...” and went on to say that the pistol would probably not be admissible in the event of a retrial resulting from reversal on other grounds.

In this case, there is no showing or even contention the appellant was prejudiced by the display to the jury of an antique cap and ball type shotgun which was identified by a witness as property stolen from him. There is no requirement that stolen property be introduced into evidence before a conviction for possession of it may be obtained. See, e.g., Carnal v. State, 234 Ark. 1050, 356 S.W.2d 651 (1962).

Even if we found such a requirement, we would not in this case regard the failure to meet it as prejudicial error. See, McCarley v. State, 257 Ark. 119, 514 S.W.2d 391 (1974), and Underdown v. State, 220 Ark. 834, 250 S.W.2d 131 (1952).

Affirmed.


author: M. Steele Hays, Judge. Per Curiam.

text:
    David GREGORY et al v. James S. MOOSE, Jr. et al
    CA 79-83
    590 S.W. 2d 665
    Opinion delivered September 26, 1979
    [Supplemental opinion on denial of petition for rehearing November 7, 1979.]
    [Petition for review denied November 13, 1979.]

    and released for publication November 16, 1979

      Edmund M. Massey, for appellants.

      Edward Gordon, for appellees.

        Moose v. Gregory, 267 Ark. 86, 590 S.W. 2d 662.

   M. Steele Hays, Judge.

After undergoing surgery for a malignant brain tumor in February of 1975, William H. Bruce, Jr., trustee of the Elizabeth E. Howard trust, decided to sell 397 acres of farm land belonging to the trust. He contacted a trusted advisor and an attorney, through whom the lands were appraised by a local real estate man as having a fair market value on March 17, 1975, of $108,000. The lands were offered for sale to Mr. James S. Moose, appellee and a beneficiary of the trust, and to Mr. Arthur Ormond, both of whom declined to buy. The lands were also offered to appellants, David and Lavona Gregory, who entered into an agreement to purchase the lands on April 1, 1975, at the appraised price.

Before the sale could be consummated, the trustee died on May 9, 1975, and a petition was filed by appellants to appoint a successor trustee to fulfill the provisions of the agreement. The appellees responded with allegations that the agreement was void for the reason that the trustee was mentally incompetent and was unduly influenced, and that the sale price was “far less” than the value of the lands. Appellees cross-petitioned, joining David and Lavona Gregory as parties. The case evoked voluminous filings and issues, but those pertaining to the agreement were tried in August of 1978, as a result of which the Chancellor found that the trustee was mentally competent on April 1, 1975, and was not acting under undue influence; further, the Chancellor found that the sale constituted a breach of trust by reason of an inadequate price and inadequate notice and that a sale of the lands in bulk was not in the best interest of the estate. The Gregorys bring this appeal asserting three points of error: that the holding of the trial court that the trustee obtained an inadequate price is against the preponderance of the evidence; that inadequate notice was not an issue before the court; and that the holding that the sale of scattered lands in bulk was not in the best interest of the estate was not an issue before the court. Appellants contend on the second and third points that by so holding, the Chancellor, in effect, altered the trust instrument.

Much of appellees’ supplemental abstract and arguments relate to the issue of the mental competence of the trustee at the time of the agreement of sale and whether he was acting under undue influence. While we think it was entirely fitting for the appellees to abstract and cite this evidence; nevertheless, no appeal was taken from the holding of the Chancellor that Mr. Bruce was mentally competent and not subject to undue influence at the time the agreement of sale was entered into, and for the purposes of this opinion we take as settled and conclusive that the trustee was competent. We cannot do otherwise.

We shall first consider the finding of the Chancellor that the trustee breached his trust by selling the trust lands for $108,000. The trustee’s power to sell is derived from the following provision of the will:

. . . the trustee is empowered at his discretion to sell any part or all of the estate, and for said purposes the absolute fee simple title thereto is hereby vested in said Trustee in Trust, and shall be absolutely binding upon all the beneficiaries named herein, and their descendents, and such conveyance shall vest an absolute title in the purchaser.

It would be difficult to conceive of language by a settlor creating, in any stronger terms, an unqualified power to sell trust property and rendering that decision absolutely binding upon the beneficiaries. The word “absolute” is defined by Webster as marked by freedom from restraint or control by any governing or commanding agent or instrumentality; also, marked by extreme concentration of complete power and jurisdiction. The word absolute, or absolutely, is employed three separate times by the settlor in the pertinent portions of the will within the same paragraph, indeed, within the same sentence.

In fact, the depth of the unrestricted power intended to be invested in the Trustee by the settlor is evidenced and emphasized by the fact that during the life of the first trustee, Mrs. George Evan, the power to sell was withheld, giving emphasis to the fact that the succeeding trustee was given that power. Also, the broadness of the trustee’s power is indicated by the wording of the will itself:

(a) the Trustee is empowered at his discretion, to sell,
(b) any part or all of the estate,
(c) the absolute fee simple title thereto is hereby vested in said Trustee in Trust,
(d) and shall be absolutely binding upon all the beneficiaries named herein,
(e) and such conveyance shall vest an absolute title to the purchaser.

We conclude from the wording used that the settlor intended to repose the broadest power possible under the law in the trustee and to intend the beneficiaries to be bound by the trustee’s decision. Thus, the issues presented by this appeal must be judged in the light of that rather clear intent of the settlor. Where a settlor has manifested such an intention, the law recognizes the investment of such power and while it cannot be said that the exercise thereof is unlimited, it does, at best, approach the same wide latitude that an owner-settlor could exercise in the handling of his own affairs. The repose of confidence by one person in another to a given end stand in apposition in the law of trusts, so much so that originally only individuals, as opposed to corporations, banking institutions, etc., were considered competent to serve as trustees on the theory that a corporate entity, being impersonal, could not possess the confidence that was the concommitant of trusteeship. We think a reading of Mrs. Howard’s will will demonstrate, that such confidence in her grandson, William M. Bruce, Jr., was consistent with her intent.

We find the law to be that a trustee holding power to sell under language used in this case has discretion not only as to whether or not to sell the trust property but as to the mode and terms of the sale as well. Before a sale will be cancelled for inadequate price, the price must be “gross inadequate” (Jarvis v. Boatmen’s National Bank of St. Louis, 478 S.W.2d 266 (Mo. 1972), or “unreasonably low” (Wilmington Trust Company v. Coulter, 200 A.2d 441 (Del. 1964)), evidence by “bad faith” (90 C.J.S. 455), or so low as to “shock the conscience of the court” (76 Am. Jur. 2d 694; Clark v. Trust Company, 100 U.S. 149).

Applying those concepts to the facts before us, it is immediately apparent that there is nothing in the record that suggests that the price was “unreasonably low” or “grossly inadequate.” The appellee’s position in the case rests almost entirely on an opinion by a real estate appraiser made more than three years after the agreement was entered into. But, how can it be said that one opinion has total reliability and another does not? Also, merely because one appraisal is higher, does it follow that the other is unreasonably low? The appraisal of Mr. Martin dated March 17,1975, appears to be thorough and detailed in all respects, and it has the advantage of time. Mr. Martin resided in the county, and his appraisal cited seven sales he considered in arriving at his opinion of $108,000. The testimony of other witnesses, all farmers familiar with the trust lands, strengthens the credibility of the Martin appraisal. Nor can we ignore the fact that the appraisal on which appellees rely gave no weight to several factors that seem clearly to have affected the market price of farm lands in the area, i.e., whether the lands were protected in the levee; to what extent the unprotected lands were subject to flooding; the fact that the trust lands were separated in four parcels; and the relatively low income yield. We believe these factors clearly affected the marketability of these lands and that the appraisal in 1978 was tainted by their omission.

The law recognizes that the actions of a trustee are to be judged in the light of conditions which prevailed at the time he elected to act, and not on the basis of an appraisal separated by several years in time from the questioned transaction. Belcher v. Birmingham Trust National Bank, 348 F.Supp. 61. In Coulter, supra, the court discusses the responsibilities of the trustee:

In Cook’s Trust Estate it was laid down that, generally speaking, a Trustee’s duty to his trust and to his beneficiaries in administering the trust is to exercise the care and skill a man of ordinary prudence would exercise in dealing with his own property in the light of the situation existing at the time. The conduct of the Trustee is not to be judged by hindsight knowledge of subsequently developed facts and circumstances.

Mr. Bruce was required to exercise that degree of skill and care as a man of ordinary prudence would exercise in selling his own property. Jarvis, supra. We are satisfied that he met that test. We agree with the trial court that he acted in some haste and no doubt his own circumstances contributed to that urgency. But the haste was not so great that he omitted the steps that give approbation to his actions, i.e., obtaining an appraisal and then holding to the appraised price. We perceive this to be the course that an ordinary prudent man would follow once he had made a decision to sell lands of his own. Had the trustee failed to obtain an appraisal from someone qualified to give a dependable opinion, or, having obtained one, failed to adhere to it, his actions, even under the trust language, would be difficult to justify; but he failed in neither regard.

It is noteworthy that the lands were offered to appellee, Mr. Moose, and he elected not to buy. Certainly, he was under no obligation to do so, but his motivation is clear — it was not the price that troubled him, but the very act of selling, as he stood to gain significantly if a sale could be averted until after Mr. Bruce’s death.

Appellee cites us to six decisions containing black letter law relative to the duty of fiduciary to obtain the best price possible when selling trust property. But a careful reading of each decision is illumninating when the facts and the holding are compared to the case before us. The decisions actually support the counterpoint, as in some instances the sale by the trustee, though perhaps criticized, was upheld by the court.

In Jarvis, supra, a trustee sold a number of parcels of trust property for $19,933 without a current appraisal, without advertising, without consulting an outside real estate broker and without negotiating as to price. The beneficiaries sought to invalidate the sale for the reason of inadequate price and offered testimony that in the upper ranges, the lands had a value of approximately $200,000. The court held that the price was not grossly inadequate and upheld the sale.

The Lockwood case has marked similarities to the case at bar. In Lockwood, the court upheld the sale of 600 acres near Disneyworld for $225,000, notwithstanding that the trustee’s own appraisal was higher ($240,000) and without competitive bidding. The objectors offered appraisals ranging from $500,000 to $1,000,000. The court held that the price was not “unreasonably low” and that the objectors had not shown that at the time of sale the price was unreasonable. The court referred to the objectors appraisals as “unpersuasive” for the reason that they were made nine months to a year after the sale was consummated.

In Whatley, supra, the court set aside, as it should have, a sale as “grossly inadequate” of mineral interests for $150 by a trustee who had no knowledge of the value, which was worth between $30,000 and $75,000. The court recited the rule that a trustee must determine the fair value of a trust property before selling.

Coulter, supra and Pennsylvania Company, supra, arise from the same set of facts wherein the court surcharged the trustee bank with loss to the trust estate by reason of a sale of railroad stock by a trustee because the trustee knew that another buyer was willing to pay a “much higher price” ($133 per share as opposed to $99 per share) and would have taken all of the shares rather than only 52 per cent, leaving the trust holding only a locked-in minority position.

Similarly, in Rippey, supra, the trustee was surcharged with loss to the trust because of a sale of 17,000 shares of stock in the Denver Post for $300 per share when the trustee knew another prospect, anxious to gain control of the Post, would pay $500 per share.

The case before us bears no resemblance to the factual situations in Rippey, Coulter, or Pennsylvania Company.

Next, the appellee argues that the trustee, Mr. Bruce, was guilty of self-dealing, citing a number of Arkansas decisions on the point. There is no question but that self-dealing is a breach of trust and the law will not permit a trustee to deal with trust property to his own advantage and to the detriment of the beneficiaries. But that is not the case in the matter before us. The cases cited in appellee’s brief on this point deal with instances of a trustee, or quasi-trustee, acquiring trust property in his own name, or in the name of another to his own benefit, or profiting in an improper way in the handling of trust assets. In every case, the trustee was guilty of conduct which was either dishonest, or fraudulent, or intentionally detrimental to one or more beneficiaries. Quite clearly, we do not have that element before us. Mr. Bruce gained, obviously, from the sale. But that eventuality was plainly contemplated by the provisions of the Howard will and Mrs. Howard could not have been unmindful of that when her will was made. Mr. Bruce was both a trustee and a beneficiary by design of the settlor, and that duality does not invalidate the sale. It is perfectly permissible for a trustee to also be a beneficiary of the trust, even though a certian conflict of interest undeniably results. Restatement of Trusts, §99.

Turning to appellant’s points two and three, it is enough to say that these issues were not raised by either the pleadings or the proof and should not have been relied upon by the Chancellor. Evans v. United States Anthracite Coal Company, 180 Ark. 578, 21 S.W.2d 952 (1929); Abbate Brothers, Inc. v. City of Chicago, 142 N.E.2d 691; Ex Parte Wren, 308 P.2d 329 (Cal.); Armstrong Clark Company v. Lyons, 366 F.2d 206.

There was no testimony that a greater price would have been obtained by a sale in bulk or by wider notice, and such evidence would be essential to invalidate a sale. Clearly, the terms of the will contemplated a sale in bulk or in separate transactions at the discretion of the trustee, as he was empowered to sell all or any part of the trust lands. Where the trustee is authorized to sell trust assets, it is within his discretion as to whether to sell in parcels or in bulk. Bogert on Trusts, § 745; In Re Ibelli’s Will, 181 N.Y. S. 2d 913.

In conclusion, it is presumed that a trustee has acted in good faith and the burden of proof rests upon those who question his actions and seek to establish a breach of trust. Jarvis, supra; First National Bank of Kansas City v. Hyde, 363 S.W.2d 647 (Mo.). We find that the appellees failed to meet this burden and the case is reversed and remanded for entry of a decree consistent with this opinion.

Supplemental Opinion on Denial of Rehearing

Per Curiam.

Appellees in Petition for Rehearing assert that the opinion reversing this appeal contains a provision which incorrectly states the law to be that it is presumed that a trustee had acted in good faith and that the burden of proof rests upon those who question his actions, relying on Jarvis v. Boatmen’s National Bank, 478 S.W. 2d 266 (Mo. 1972) and First National Bank of Kansas City v. Hyde, 363 S.W. 2d 647 (Mo.). Appellees cite Alexander v. Alexander, 262 Ark. 612, 561 S.W. 2d 59 (1978), and decisions cited therein.

The cases on which petitioners rely do contain general statements of law that are correct, but on examination are distinguishable on the facts from the case decided. In Bond v. Marlin, 199 Ark. 806, 136 S.W. 2d 460 (1940), the issue involved an attorney-client relationship, and the court held that that relationship carried such a duty that the burden was upon the attorney to show the fairness and equity of the transaction to his client. In Alexander, the trustee exceeded the powers given her under the trust to the extent that the court said she showed a “total absence of good faith.”

The burden of proving the gross inadequacy of the purchase price here was upon the appellees.

        Lockwood v. O.T.B. Corporation, 305 A.2d 636 (Del. Ch. 1973); Pennsylvania Company v. Wilmington Trust Company, 40 Del. Ch. 567, 186 A.2d 751 (1962); Wilmington Trust Company v. Coulter, DV Del. Ch. 548, 200 A.2d 441 (1964); Whatley v. Wood, 157 Colo. 552, 404 P.2d 537 (1965); Rippey v. Denver National Bank, 273 F.Supp. 718 (1967); Jarvis v. Boatmen’s National Bank of St. Louis, 478 S.W.2d 266 (Mo. 1972).

        Hindman v. O’Connor, 54 Ark. 627, 16 S.W. 1052; Hardy v. Hardy, 217 Ark. 296, 230 S.W.2d 6 (1950); McHugh v. Jeffries, 207 Ark. 890, 183 S.W.2d 309 (1944); Selig v. Morrison, 230 Ark. 216, 321 S.W.2d 769; Alexander v. Alexander, 262 Ark. 612, 561 S.W.2d 59 (1978).


text:
    James K. YOUNG v. MOBLEY CONSTRUCTION COMPANY, INC., Jimmy D. DALTON and Bill GRAHAM
    CA 79-119
    587 S.W. 2d 837
    Opinion delivered September 26, 1979
    [Petition for rehearing denied.] and released for publication October 24, 1979

      Luther B. Hardin, for appellant.

      James A. McLarty, for appellees.
   George Howard, Jr., Judge.

We are to decide whether the decree of the chancellor impressing a materialman’s lien on real property owned by the appellant — on the theory that an agency relationship existed between purchaser-contractor in possession who made improvements before acquiring the title and the owner — is supported by a preponderance of the evidence.

THE FACTS

On November 4,1976, Vernon and Bertha Stewart, husband and wife, entered into an escrow agreement to sell 2.46 acres of land, in Pope County, to Curtis and Virginia Wright, husband and wife, for $9,500.00, payable in monthly installments of $150.00. Peoples Bank and Trust Company of Russellville, as escrow agent, was authorized to receive the monthly installments and to deliver the warranty deed executed by the Stewarts to the Wrights upon payment of the purchase price. The agreement provided that the Wrights were entitled to immediate possession of the lands, but were not to permit any “lien to be impressed upon” the lands.

On January 26, 1977, the Stewarts, pursuant to a provision in the agreement, cancelled the agreement because the Wrights were in default in their payments. Either shortly after cancelling the agreement or immediately thereafter, the Stewarts discovered the Wrights were making improvements upon the lands which consisted, at the time, of a slab of concrete that had been poured obviously as a foundation for a building.

On April 15, 1977, the Stewarts and the Wrights executed a second escrow agreement for the sale of the property and designated the price as $15,000.00, payable in 90 days from the date of the agreement. The Wrights were granted an option to exercise two 90 day extensions for payment of the purchase price upon payment of $500.00 for each extension. An initial $500.00 was paid upon the execution of the agreement, but no further payments were made. This agreement also afforded immediate possession of the lands to the Wrights, but precluded any liens upon the property.

On April 27, 1977, the Stewarts’ attorney sent the following letter to appellees:

My client, Vernon Stewart, is selling some land on an escrow agreement to Curtis Wright, who he understands is building an apartment building on this property. Inasmuch as your firm might be claiming a materialman’s lien on Curtis Wright’s interest in that land for materials purchased by Mr. Wright and allegedly delivered to that land, you should be aware that Curtis Wright is in no way an employee or agent of Vernon Stewart, has no contract with Stewart to build a building for him or do anything else for him for that matter and that Mr. Stewart has no agreement with your firm or anyone representing your firm that any materials or supplies should be delivered to that property and no agreement that if materials are delivered to that property for any reason that Mr. Stewart will pay for them.
If you have any questions, do not hesitate to contact me or Mr. Stewart . . .

On June 3, 1977, Mobley Construction Company, Inc., filed an action against the Stewarts, the Wrights and C & W Construction — a construction enterprise owned and operated by Curtis Wright making the improvements upon the lands — for a judgment of $5,852.86 for materials — ready mixed concrete, sand and gravel — supplied in connection with the improvements and a materialman’s lien against the lands.

Bill Graham and Jimmy D. Dalton, doing business as Jim Dalton Plumbing & Construction Company, intervened seeking judgments for $5,406.96 and $1,009.00 and for a lien against the lands for materials furnished.

It is stipulated that the Stewarts sold the lands in October, 1977, to James K. Young, Esq.

FINDINGS OF THE TRIAL COURT

The trial court made the following findings in con-eluding that appellees were entitled to a lien against the lands:

4. The Court finds that there was an implied agreement between Vernon H. Stewart and Bertha B. Stewart, as owners of the real property in question, and Curtis Wright, as the contractor of improvements upon said real property, for the buildings, erection or construction of improvements upon said land; . . . that plaintiff. . . and the Intervenors . . . are entitled to a Materialman’s Lien . . .
5. The Court finds further that an unjust enrichment would take place but for the finding of this lien . . .

THE DECISION

It is plain that in order for a materialman or laborer to have a lien upon real property in which he has supplied materials or labor, the materialman has the duty or burden to establish that the supplies or labor were furnished under or by virtue of “any contract with the owner or proprietor thereof, or his agent . . .” Ark. Stat. Ann. §51-601 (1971 Repl.).

Appellees readily concede that while Wright had possession of the lands, Wright never had title inasmuch as the deed of conveyance executed by Stewart was placed in escrow and, consequently, there has never been a delivery. The thrust of appellees’ argument is that Wright, in his capacity as the contractor making the improvements, was the agent of Stewart, the owner of the lands. The agency relationship, argue appellees, is predicated upon an implied agreement. Appellees, therefore, conclude that the single issue to be resolved is whether a preponderance of the evidence supports the finding of the trial court that an “implied agreement” existed.

Appellees recognizing, as they must, that an agency relationship is central to their case argue that an agreement, between Stewart as the owner of the lands and Wright as the contractor, is implicit from the fact that Mobley Construction Company supplied materials for the improvements beginning December 31, 1976, and although Stewart cancelled the first escrow agreement on January 26, 1977, Stewart did not give notice to the materialmen; that Mobley delivered supplies, at the request of Wright, on January 31,1977, February 1,1977, and March 18, 1977, aggregating a cost of $2,274.60; that Wright was given a new agreement on April 15, 1977, and the terms were essentially the same as the first, except the price was increased from $9,500.00 to $15,000.00. Appellees stress that Stewart made no effort to explain the difference in the price and, consequently, the trial court was justified in concluding that the increasement is indicative of the fact that Stewart took into consideration that improvements had been made upon the lands and that this was one way of shielding or indemnifying himself against any claims asserted by materialmen.

While we agree that appellees have properly framed the issue tendered for resolution, we are not convinced that the trial court’s holding is supported by a preponderance of the evidence.

It is undisputed that the first as well as the second escrow agreement does not show that Wright, either as purchaser of the lands or as a contractor, was the agent of Stewart with the authority to bind Stewart in the purchase of any materials. As a matter of fact, the agreements do not obligate the purchasers in any way to make any improvements to the lands, but on the contrary, expressly provide “PURCHASER further agrees not to allow any lien to be impressed upon said lands ... or to do any act that will lesser SELLER’S security herein.” The fact that Stewart observed the improvements being made upon the lands is not sufficient to imply a contract on the part of Stewart to pay for the improvements or the materials. There is no testimony in the record to show that Stewart ever agreed to pay for any materials. As a matter of fact, Stewart testified that he was not even aware of the fact that improvements were being made or that materials were being delivered to Wright until either shortly before or immediately after he had cancelled the first escrow agreement. Further, it is clear that Stewart disclaimed any responsibility for the improvements by having his attorney to notify appellees of the relationship that existed between him and Wright. It is plain from this record that Stewart was not consulted about the improvements to be made on the lands and had no knowledge of the terms between Wright and appellees for the materials. See: Hoffman v. McFadden, 56 Ark. 202, 19 S.W. 753.

The appellees place enormous emphasis, in support of their argument, on the fact that there is a substantial difference between the sale price for the lands designated in the first escrow agreement and the second agreement. Appellees contend that Stewart’s failure to explain the basis for the difference justified the trial court in concluding that Stewart took into consideration the value of the improvements in designating the sale price at $15,000.00 in the second agreement, consequently, Stewart adopted or ratified the cost of the improvements in his “own business transaction.” Appellees’ argument is merely an assumption for there is no evidence in the record to support this conclusion. It can be readily argued, with equal force and persuasion, that the increased price was due to economic factors as well as any inconvenience that Stewart encountered after the execution of the first agreement. It is plain that Wright made an initial payment of $150.00, under the first agreement, but did not make any further payments although he had agreed to pay monthly installments of $150.00 until $9,500.00 plus interest at the rate of 10% per annum, had been duly paid.

Appellees had the burden of proof to establish the material elements for creating or impressing a lien upon appellant’s lands. Williams v. Humphrey, 97 Ark. 643, 134 S.W. 939; Arkansas Foundry Company v. Farrell, 238 Ark. 757, 385 S.W.2d 26.

In conclusion, the trial court stated in its findings that an unjust enrichment would take place “but for the finding of this lien.” Appellees, however, argue in their brief while the trial court mentioned unjust enrichment, the basis of the trial court’s holding was the finding of an implied agreement or agency between the contractor and the owner. Accordingly, we deem it sufficient to state that we are not persuaded that the facts here require the application of the principle that equity will not permit one to unjustly enrich himself at the expense of another.

We have not been called upon to consider the question whether appellees have the right to remove the improvements from appellant’s lands, providing this can be done without substantial damage to the lands. See: Shick v. Dearmore, 246 Ark. 1209, 442 S.W.2d 198 (1965).

Reversed and remanded for the trial court to determine whether the pleadings filed by appellees are sufficient to justify a finding that appellees may elect to remove the improvements providing this can be done without substantial damage to appellant’s lands.

      This action was originally filed in the Arkansas Supreme Court, but was transferred to this Court under Rule 29(3) of the Rules of the Supreme Court of Arkansas.

      Vernon Stewart after observing an apartment building being constructed upon the property, consulted his attorney and was advised to determine the identity of the materialmen furnishing supplies in connection with the improvements being made by the Wrights.


text:
    Lowell G. WHITE v. CLIFF PECK CHEVROLET, INC.
    CA 79-120
    587 S.W. 2d 606
    Opinion delivered September 26, 1979
    and released for publication October 17, 1979

      Herrod & Cole, by: E. H. Herrod, for appellant.

      Andrew L. Clark, for appellee.
   David Newbern, Judge.

This case was appealed to the Arkansas Supreme Court and assigned to the Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

Here we are to decide whether the chancellor abused his discretion in refusing to permit a plaintiff to amend his complaint to seek damages when it became apparent the court could not grant his original request for specific performance.

In October, 1977, the appellant ordered a new, 1978 Chevrolet “Indianapolis Pace Car” Corvette from the appellee. In February, 1978, the appellee returned the appellant’s $500.00 deposit, and in the accompanying letter stated it had been informed that customer orders for those cars could not be filled by Chevrolet. In March, 1978, the appellant filed a complaint requesting an order restraining the appellee from selling or altering “subject automobile.” This order was sought on the assumption, and with purported reason to believe that the appellee would receive at least one “Pace Car,” and that any such car received should be regarded as sold to the appellant. The complaint also requested specific performance of the contract for the sale of the car. The record does not disclose the disposition of the request for the restraining order.

In May, 1978, a “Pace Car” was delivered to the appellee which sold it to its wholly owned subsidiary, Cliff Peck Leasing, Inc., which in turn sold it to Jim Spears, an employee of the appellee. The car was sold by Spears, and its whereabouts, according to testimony, were unknown to the appellee at the time of the trial.

As early as August, 1978, the appellee had stated in discovery responses that it was no longer in possession of the car and that the appellee did not know who had possession of it. A trial was held on October 6, 1978, and toward the close of the testimony the appellant offered an.amendment to the complaint which would have changed it to one seeking damages for breach of contract. The court denied the amendment and dismissed the complaint with prejudice on the ground that it could not award specific performance and could not allow an amendment which stated a new cause of action.

The appellant claims the chancellor abused his discretion, and we agree. The amendment was not one which, as the appellant argues, would have been acceptable as causing the pleadings to conform to the proof. The appellant had offered some evidence which might have supported a restitutionary award, i.e., the difference between what the appellee’s wholly owned subsidiary received for the car and the price the appellant allegedly had agreed to pay for it. But no evidence of a loss to the appellant was produced.

However, the chancellor was wrong in saying the amendment offered stated a new cause of action. The term “cause of action” is difficult to define, and we will say only that it consists of facts showing entitlement to relief. A leading case on the definition of the term in the context of amendments to pleadings states the following conclusion:

In determining whether a wholly different cause of action is introduced by the amendment technical considerations or ancient formulae are not controlling; nothing more is meant than that the defendant not be required to answer a wholly different legal liability or obligation from that originally stated. Klopstock v. Superior Ct., 17 Cal. 2d 13, 108 P.2d 906 (1941). (108 P.2d at 323)

Professor (Judge) Charles E. Clark, as early as the first edition of his Handbook on Code Pleading, made it clear that the rule was an anachronism and thus the term “cause of action” should be broadly defined under the codes as a “group of facts giving rise to one or more rights of action.” Clark, Handbook on Code Pleading, p. 503 (1928).

The problem in this area has been whether and at what point the plaintiff should be allowed to change his pleading to show different facts which would give rise to a different type of claim than that originally pleaded. In this case the chancellor was not confronted with that situation. Rather, he was being asked, albeit late in the case, to substitute, for the plaintiff’s request for specific performance, a request for damages. Thus, rather than stating a new “cause of action,” the appellant was asking for a different “remedy.”

We recognize the broad discretion a chancellor has to permit or refuse amendments. Cole v. Branch & O’Neal, 171 Ark. 611, 285 S.W.2d 353 (1926). But here it is clear that he stated a reason for refusal to permit the amendment which was incorrect. No prejudice which would have resulted to the appellee from the proposed amendment was shown. No surprising new facts were alleged in the proposed amendment. From the record, it appears that the counsel for the appellee seized upon this reason for urging denial of the amendment only after it was raised by the chancellor. While we are troubled by the apparent knowledge on the part of the appellant of the impossibility of granting the remedy sought originally as early as August, 1977, we do not find that to be a sufficient reason to support the chancellor’s decision, and the chancellor apparently thought nothing of it either. The appellant might have been speculating that evidence at the trial would show the appellee still to have been in possession of the vehicle the appellant alleged to have been sold to him.

The chancellor could, under the clean-up doctrine, have entertained the action as amended even though the remedy sought became “legal” as opposed to “equitable. ” Bierbaum v. City of Hamburg, 262 Ark. 532, 559 S.W.2d 20 (1977). He could also have transferred the case to the circuit court. Ark. Stat. Ann. §27-208 (Repl. 1962).

Because the chancellor refused to permit the amendment and dismissed the complaint on the basis of an invalid reason, and because it was not shown that prejudice to the appellee would have resulted from the proposed amendment, we hold it was an abuse of discretion for the chancellor to refuse the amendment and dismiss the action with prejudice.

Reversed and remanded.

      We are pleased to note Judge Clark’s view has prevailed, and as indirect beneficiaries of his effort we will not be confronted with this definitional problem in the event we are called on to interpret A.R. Civ. P. 15 which came into effect after this case was tried.