text:
    Marion TURNER v. STATE of Arkansas
    CR 85-132
    698 S.W.2d 798
    Supreme Court of Arkansas
    Opinion delivered November 18, 1985

      William C. MacArthur, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

At about 4:30 p.m. on September 11, 1984, the appellant Marion Turner, age 29, shot and killed Albert Lampkin with a semi-automatic .22-caliber rifle. The homicide took place in Johnson Park in Jacksonville, where a number of men were accustomed to gather and spend time. The jury convicted Turner of first-degree murder, as charged, and imposed a sentence of life imprisonment.

A narration of essential parts of the testimony, viewed in a light favorable to the verdict, is sufficient to rebut the first argument, that the State failed to prove premeditation and deliberation.

According to Turner’s testimony, earlier that afternoon Lampkin had threatened to blow Turner’s head off. In response to that threat Turner redeemed his rifle from a pawn shop, bought ammunition, loaded and assembled the gun, and put it in a duffel bag. According to the State’s witnesses, Turner arrived at the park in his car, alighted, and, carrying the rifle, approached the spot where Lampkin was sitting in his own car. After a brief conversation, during which Turner said Lampkin again threatened him, Turner started shooting and continued shooting after Lampkin fell to the ground. An officer testified that a person had to pull the trigger every time for the gun to fire. The autopsy showed that Lampkin had been hit by ten shots. Turner testified that he thought Lampkin was reaching for a pistol underneath his shirt, but the jury could have found from the proof that he was unarmed and defenseless.

The appellant’s other argument is that the court should have granted a mistrial, after the State had rested, because an officer who arrived at the scene before Lampkin died testified that Lampkin had no apparent pulse, but he would jerk every 10 or 15 seconds and suck some of the blood in his mouth into his throat. “It appeared that he was trying to get air or trying to sustain Life.” There is no indication that the prosecution was attempting to inflame the jury. To the contrary, the officer’s description of the dying man was in response to a broad question: “What did you observe when you arrived at the scene?” Turner is not in a position to argue that the consequences of his own brutal attack upon his victim should have been kept from the jury.

We find no prejudicial error in the other rulings disclosed by the abstracts of the proceedings.

Affirmed.

Purtle, J., not participating.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Eddie W. BANKSTON et ux v. Charlene Worden McKenzie, et al.
    85-55
    698 S.W.2d 799
    Supreme Court of Arkansas
    Opinion delivered November 18, 1985
    [Rehearing denied December 23, 1985.]

      Eddie W. Bankston, pro se.

      Patton & Brown, for appellants.

      Warren H. Webster, for appellee Charlene Worden McKenzie.

      Laser, Sharp & Mayes, P.A., for appellee Maryland Casualty Co.

      Henry J. Osterloh, for appellee Pulaski County Special School District.

       Purtle, J., not participating.

   Darrell Hickman, Justice.

Charlene McKenzie contracted with the Pulaski County Special School District for the building of a house by a trades class. Subsequently, she leased the house, with an option to purchase, to Eddie and June Bankston, the appellants. They exercised the option to purchase in June of 1980 and paid Charlene McKenzie $84,000. The house was damaged by fire in September of 1980. The Bankstons ultimately sued the school district, the district’s insurer, Maryland Casualty Company, and Charlene McKenzie for the fire loss and a defective sewer system, alleging various theories, including negligence, breach of express and implied warranties and strict liability. This is the second appeal of this case. In Bankston v. Pulaski County School District, 281 Ark. 476, 665 S.W.2d 859 (1984), we affirmed in part and reversed in part the trial court’s finding that the school district was totally immune from liability. We found that although the claim sounded chiefly in tort and that the school district was immune from tort actions, the allegations with regard to the sewer system sounded in contract and, therefore, that claim must be heard.

On remand the trial court granted summary judgment to all the appellees on any claims arising from the fire because the Bankstons were paid the full amount of the damages they claimed from the fire by Allstate Insurance Company, their own insurer. Allstate paid the Bankstons $129,974.68. This was the total amount claimed in the Bankston’s third amended complaint. After the Bankstons were paid, they signed a release which stated that they released all persons from any and all claims and causes of actions which they had by reason of the fire loss. The trial court further found that neither the school district nor Charlene McKenzie was liable for any defect in the sewer system.

The Bankstons first argue that their settlement with Allstate did not destroy their claims against the appellees because Allstate waived its subrogation right to pursue the claim for its own benefit. The Bankstons’ policy with Allstate provided for subrogation and they signed a release of all of their claims. In this situation, after an insured has been fully paid by his insurer, any claim that he has against a third party tortfeasor is the insurer’s. The insurer becomes subrogated to the insured’s claim, and the insurer becomes the real party in interest and the only party who can pursue the claim. Ark-Homa Foods, Inc. v. Ward, 251 Ark. 662, 473 S.W.2d 910 (1971); ARCP Rule 17. Allstate chose not to pursue the claim against the appellees, obviously deciding it to be meritless. Allstate denies that it waived its rights to subrogation, but even if it had, the right would not be the Bankstons’. Once they were paid in full and signed the release, they no longer had any claim arising out of the fire loss. 16 Couch on Insurance 2d § 61:28 (Rev. Ed. 1983).

In their reply brief, the Bankstons argue that they were not fully paid for their property losses or reimbursed for their deductibles. This argument was not raised to the trial court, and we will not consider it. Cain v. Arkansas State Podiatry Examining Board, 275 Ark. 100, 628 S.W.2d 295 (1982).

The Bankstons argue that the trial court erred in granting summary judgment to the school district with regard to the sewer system. The trial court correctly held that since the Bankstons had knowledge that the system was defective, they could not recover for breach of implied warranty. In Blagg v. Fred Hunt Co., 272 Ark. 185, 612 S.W.2d 321 (1981), we held that a builder-vendor’s implied warranties run not only to the first owner but extend to subsequent purchasers for a reasonable length of time where there is no substantial change in the property. The implied warranty was specifically limited, however, to latent defects which are not discoverable by subsequent purchasers upon reasonable inspection and which become manifest only after the purchase. The Bankstons lived in the house a year before they exercised their option to purchase. Eddie Bankston stated in deposition that he saw raw sewage accumulate in his front yard four weeks after he moved in and that it had been there ever since. The Bankstons argue that since they did not know what was specifically wrong with the system, they still have a cause of action. We do not agree. They knew shortly after they moved in that the system did not function properly, bought the property anyway, and therefore, have no cause of action for breach of any implied warranty.

The Bankstons finally argue that Charlene McKenzie should be liable for the defective sewer system. They offer no authority that implied warranties flow from the first purchaser to the subsequent purchaser; Charlene McKenzie sold the property “as is” to the Bankstons. The trial court was correct in granting her motion for summary judgment.

Affirmed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Wilford HARRIS v. ARKANSAS BOOK COMPANY, Carolyn GIBSON, H. Allen GIBSON, Mary Jane WINTER and Judy W. SAYER
    85-116
    700 S.W.2d 41
    Supreme Court of Arkansas
    Opinion delivered November 18, 1985
    [Rehearing denied January 13, 1986.]

      Richard Quiggle, P.A., for appellant.

      Friday, Eldredge & Clark, by: Bill S. Clark and Michael S. Moore, for áppellee.

       Purtle, J., not participating.

   Robert H. Dudley, Justice.

Appellant, Wilford Harris, filed suit alleging wrongful termination of his employment by appellees, Arkansas Book Company and its four owner-partners. He sought tort damages for (1) the intentional infliction of emotional distress and (2) bad faith discharge. He sought contract damages for (1) breach of his employment contract and (2) breach of a promise to pay him a pension. The trial court granted a directed verdict on the tort claims, but let the contract claims go to the jury. The jury returned a $93,700 verdict for appellant. The trial court then granted a judgment notwithstanding the verdict on the ground that the employment contracts are unenforceable under the Statute of Frauds. We affirm.

In the early and mid-1930’s, appellant Harris was a summertime employee of the Arkansas Book Company, a book depository. In 1938, he became a full-time employee and, from that time until his discharge in 1979, he served as manager of appellees’ warehouse. He never had a written contract of employment. He was assured by a previous partner-owner that he could have his job “for many more years” and that the company would pay him some unspecified type of pension. The company had no stated or organized pension plan for its employees, although one employee did receive periodic payments for two years immediately following his retirement.

At appellant’s discharge, J.D. Harris, appellees’ general manager, and Carolyn Gibson, one of the partners, held a discussion with appellant. They told him that he had been an unsatisfactory employee by refusing to follow management directives, by keeping irregular hours, by acting outside his authority, and most importantly, his salary of $28,000.00 was more than the job called for and more than they could pay. He was given two weeks of unused vacation time, but no severance pay.

Appellant later applied for unemployment compensation benefits, and the appellees contested the claim. One of the grounds given by appellees for appellant’s discharge involved ordering some labels without first obtaining management’s permission. It was established at trial that appellees did not know of the incident until after appellant had been discharged. In addition, appellant put on proof that he got along well with publishers’ representatives as well as with the majority of his fellow workers.

Appellant first contends that the trial court erred in directing a verdict against him on his claim of intentional infliction of emotional distress. Viewing the evidence in the light most favorable to appellant, as we must do, we do not find sufficient evidence to hold that fair minded people might have found appellees liable for the tort of emotional distress.

As a matter of law, we recognize the tort cause of action for the intentional infliction of emotional distress, sometimes called the tort of outrage. M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). In Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982), we stated:

The new and still developing tort of outrage is not easily established. It requires clear-cut proof. “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” [Citations omitted.]

In Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984), we emphasized that the conduct must be both “extreme and outrageous,” while in Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985), we explained that “clear-cut proof’does not mean greater proof than a preponderance of the evidence. It is for the trial court to determine, in the first instance, whether the conduct may be so extreme and outrageous as to permit recovery. Restatement of Torts (2d), § 46, Comment h (1965); Givens v. Hixson, supra.

The trial judge was unquestionably right in granting the directed verdict on the count alleging the tort of outrage. The gravamen of appellant’s argument is that he was discharged after working for the book company for 49 years. Because of the employer’s right to discharge an at-will employee, a claim of outrage by an at-will employee cannot be predicated upon the fact of the discharge alone. However, the manner in which the discharge is accomplished or the circumstances under which it occurs may render the employer liable. M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). To be actionable the employer’s conduct must be so extreme and outrageous as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. The discharge of a “long time employee alone does not meet that test. Appellant also argues that the tort of outrage was inflicted because he was promised employment until the age of 70 and “lost four years salary at $28,000 a year and an expected pension” as a result of his wrongful termination. While the breaking of some promises may well constitute conduct utterly intolerable in a civilized community, this is not such a case. There was no testimony that appellant was promised employment until he was 70 years old. Appellant testified that he received letters from earlier partners which concluded with phrases such as “looking forward to a continued employment or association for many more years.” Such statements were nothing more than a polite closing salutation intended simply to add a touch of personal warmth to an otherwise businesslike letter. The statement expressed a hope or expectation rather than a promise. See Hillsman v. Sutter Community Hosps., 153 Cal. App. 3d 743, 200 Cal. Rptr. 605 (1984). Appellant has abstracted his own testimony on the issue as follows:

Another vague area was when the appropriate time for me to retire would be. All of my life, I had in the back of mind seventy as the age I would like to retire. I am now seventy-one. I was very close to sixty-six when I was terminated by Arkansas Book Company. No one at Arkansas Book Company ever indicated to me that there was a time when they expected me to leave the company.

In addition, appellant testified that there never was an amount or a percentage of wages fixed or agreed upon for a pension. There were no company policies or handbooks setting forth a pension plan.

A supposed breach of vague assurances of long-term employment does not constitute the tort of outrage. Surely, most employers express hope that newly hired employees will enjoy a long career with them, but those employers hardly intend for their sentiments to form a contract with the employee. Similarly, the supposed breach of an undefined pension plan does not constitute the tort of outrage. In addition, we find nothing in the communication concerning appellant’s unemployment compensation which rises to the level of the tort of intentional infliction of emotional distress.

The appellant next contends that “the trial judge erred in not submitting the plaintiffs instructions charging the tort of bad faith discharge to the jury.” However, the appellant has not abstracted the requested instructions. Requested instructions that are not abstracted cannot be considered on appeal under Rule 9(d).

Appellant’s next point of appeal is that the trial judge erred in refusing to give his requested jury instruction concerning a pension. Again, the instruction is not abstracted, and we do not consider the matter.

Appellant next argues that the trial court erred in granting a judgment notwithstanding the verdict on his $93,700 verdict for breach of contract. Again, the trial court was correct. Appellant’s alleged oral contract, made 20 or 30 years ago, for employment until he reached the age of 70 is clearly barred by the Statute of Frauds. Meyer v. Roberts, 46 Ark. 80 (1885).

Appellant presents four sub-points contending that the Statute of Frauds should not be applied. It would unduly lengthen this opinion to respond to all four of the sub-points, but we do consider one of them worthy of discussion. Appellant contends that Ark. Stat. Ann. § 81-310 (Repl. 1976) renders the Statute of Frauds nonapplicable. Ark. Stat. Ann. §§ 81-308 to - 310 comprise Act 61 of 1889, which provides a penalty for a corporation which discharges an employee, with or without cause, and does not promptly pay his earned wages. The act does not in any manner repeal or replace the Statute of Frauds.

Appellant next argues that the trial court erred in granting the judgment notwithstanding the verdict based on the Statute of Frauds because a motion for a judgment notwithstanding the verdict must state specific grounds and appellees’ motion did not specify the Statute of Frauds. See ARCP Rule 50(a). Appellant tacitly admits that appellees’ memorandum in support of the motion extensively discusses the Statute of Frauds, but contends the discussion was inconsistent, that is, appellees argued that if the contract was for more than one year, the Statute of Frauds applied, but if it was employment at-will the appellant was not entitled to future wages. The grounds were stated with sufficient specificity. Any difficulty in specificity arose because appellant had inconsistent claims. He claimed he was entitled to damages under an oral contract not to be performed within one year, or else he was entitled to damages under an oral employment at-will contract.

Affirmed.

Purtle, J., not participating.


author: Per Curiam.

text:
    Terry PORTER v. STATE of Arkansas
    698 S.W.2d 801
    Supreme Court of Arkansas
    Opinion delivered November 18, 1985

      Terry Porter, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Per Curiam.

Petitioner pleaded guilty to capital murder in January, 1984, and was sentenced to life imprisonment without parole. In February, 1985, he sought to vacate.the plea pursuant to Criminal Procedure Rule 37. The petition was denied without a hearing on the day it was filed. No order was issued, but an entry was made on the docket noting the denial and stating that “previous Rule 37’s have been denied and this motion is likewise denied because [petitioner] is entitled to only one Rule 37 and he has had more than that.” There is nothing on the docket or in the record to indicate that petitioner was ever informed that his petition has been denied. Petitioner now seeks permission for belated appeal of the trial court’s decision denying the Rule 37 petition, contending that his failure to file a timely notice of appeal within thirty days of the date the order was entered was caused by the fact that he did not know that his petition had been denied.

Without intending to comment on whether petitioner was entitled to a subsequent petition under Rule 37, we find good cause to grant a belated appeal. When a petition for postconviction relief is denied, the clerk of the court must promptly mail a copy of the court’s order to the petitioner in accordance with Rule 37.3 (d) and our opinion in Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). We will grant a belated appeal under Rule 36.9 if the clerk neglects to comply with Rule 37.3(d). Pennington v. State, 286 Ark. 503, 697 S.W.2d 85 (1985). When there is some indication in the record that the clerk mailed the order, the burden is on the petitioner to establish that the clerk failed to do so. When the record is silent on whether the clerk complied with the rule and the Attorney General in his response to a motion for belated appeal is unable to provide the clerk’s affidavit or some other proof that the order was mailed, it will be assumed that the petitioner was not notified of the denial of his petition.

In petitioner’s case, there is no notation on the docket that he was notified by letter or otherwise that he had been denied relief and the Attorney General did not produce any proof to negate the conclusion that no one gave notice to the petitioner in time for him to file a timely notice of appeal. He is therefore entitled to a belated appeal. A petition for writ of certiorari will issue to bring up the record for review.

Motion granted.

Turtle, J., not participating.


text:
    James C. YOUNG v. STATE of Arkansas
    CR 85-184
    699 S.W.2d 398
    Supreme Court of Arkansas
    Opinion delivered November 18, 1985

      James C. Young, pro se.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for respondent.
   Per Curiam.

Petitioner was tried in 1983 for a rape committed in 1979. When the jury failed to reach a unanimous verdict, the court declared a mistrial. Petitioner, who proceeded pro se at retrial in 1984, was convicted and sentenced to fourteen years imprisonment. The Court of Appeals affirmed. Young v. State, 14 Ark. App. 122, 685 S.W.2d 823 (1985). Petitioner now requests appointment of counsel and raises the following grounds for relief pursuant to our postconviction rule, Criminal Procedure Rule 37: (1) the Court of Appeals erred when it upheld the trial court’s rulings that the delay in bringing the charge against him was not prejudicial and that he voluntarily waived his right to counsel; (2) witnesses at the second trial gave testimony which conflicted with their testimony at the first trial; (3) the trial court erred when it overruled his objection to the testimony of rebuttal witness Wanda Dollar; (4) he was placed in double jeopardy by being tried a second time; and (5) he was charged and convicted under an ex post facto law.

Allegations 1, 2 and 3 are not grounds for relief under Rule 37. Rule 37 affords a remedy when the sentence in a case was imposed in violation of the Constitution of the United States or of this State or is “otherwise subject to collateral attack.” Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974); Thacker v. Urban, 246 Ark. 956, 440 S.W.2d 553 (1969); Clark v. State, 242 Ark. 584, 414 S.W.2d 601 (1967). It is not available to reargue issues decided on appeal or to argue issues which could have been raised at trial and on the record on appeal. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981); see also United States v. Frady, 456 U.S. 152 (1982).

Allegation 4 would be grounds for relief if it had merit since a violation of the constitutional safeguards against placing a defendant in double jeopardy is sufficient to void a conviction. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985). Retrying a defendant when the jury is unable to reach a verdict, however, is not automatically a violation of the constitutional provision against double jeopardy, and petitioner has provided no proof that there was any barrier to retrying him.

Petitioner pointed out in a pretrial motion to dismiss that in 1979 when the crime was committed, rape was classified as a class A felony punishable by imprisonment for not less than five years nor more than fifty years, or life. Ark. Stat. Ann. §§ 41-1803 and 41-901 (Repl. 1977). In 1981 the statutes were amended to classify the crime of rape as a class Y felony punishable by a term of not less than ten nor more than forty years, or life. Ark. Stat. Ann. §§ 41-1803 and 41-901 (Supp. 1983).

The substantive law in effect when the crime is committed governs; therefore, if petitioner had secured a ruling on his motion or raised the issue when the jury was instructed, he would have been entitled to a jury instruction on rape as a class A felony. Deaton v. State, 283 Ark. 79, 671 S.W.2d 175 (1984); Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). He did not do so, and the jury subsequently returned a, sentence of fourteen years, which was within the statutory range for either a class A or a class Y felony. As a result, petitioner suffered no actual prejudice from the error. Moreover, while the defendant who elects to represent himself has a constitutional right to do so, Faretta v. California, 422 U.S. 806 (1975), he is not excused from abiding by the rules. Gilbert v. State, 282 Ark. 504, 669 S.W.2d 454 (1984). Even questions of constitutional dimension are not preserved beyond direct appeal unless they present questions of such fundamental nature that the judgment is rendered absolutely void and open to collateral attack. Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981). A ground sufficient to void a conviction must be one so basic that the judgment is a complete nullity. Travis v. State. None of the allegations in this petition is sufficient to render the judgment in petitioner’s case a nullity.

Since petitioner has not demonstrated that he is entitled to proceed with an evidentiary hearing in circuit court, his request for appointment of counsel is denied. See Dyer v. State, 258 Ark. 494, 527 S.W.2d 622 (1975).

Petition denied.

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    SOUTHWESTERN BELL TELEPHONE CO. v. OUACHITA ELECTRIC COOPERATIVE CORP.
    85-139
    699 S.W.2d 737
    Supreme Court of Arkansas
    Opinion delivered November 25, 1985

      Jay E. Hoggard, for appellant.

      Roberts, Harrell, Lindsey & Foster, P.A., by: Searcy W. Harrell, Jr., for appellee.
   Jack Holt, Jr., Chief Justice.

While digging holes to set poles to rebuild a distribution line, the appellee, Ouachita Electric Cooperative Corp., cut some buried cable owned by appellant, Southwestern Bell Telephone Co. The telephone company filed suit alleging negligence and seeking $1,016.96 for repairs to the damaged cable. The case was tried to a judge sitting as a jury and a verdict was returned for Ouachita Electric. It is from that verdict that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(o).

Six months before the digging began, Southwestern Bell, at Ouachita Electric’s request, sent a representative to the work site to locate buried cable. At the trial of the matter, Southwestern Bell maintained it was negligent for Ouachita Electric to wait six months after the locate was made to begin digging. Furthermore, the telephone company alleged Ouachita Electric was negligent when, after the cable was cut for the first time, the digging was continued and a second cut was made in the cable. Neither argument has any merit.

The testimony indicated that in August, 1983, the telephone company representative made paint markings at the site locating the cable, and approved the electric company’s placement of poles to mark the line along which it would dig. The digging began in January, 1984, and the cable was cut.

Two Southwestern Bell employees testified that the difficulty with waiting six months to begin digging is that the paint used to mark the line could have disappeared, the cable could have been relocated, the stakes could have been moved, lightning could damage the site, or other utilities could have come in and added water or gas lines.

No evidence was presented that any of these acts did occur, or that anything happened to change the markings during the six month interval. J.O. Tucker, the telephone company employee who did the locate for the site, testified, in fact, that he did not have an opinion as to why the cable was cut because he could see after the damage occurred that the power poles were still in a straight line.

The electric company offered the testimony of Tyson Greening, the manager of the company, who was present during the August locate. Mr. Greening stated he did not request a second locate when digging began:

Because I, personally, was there when this representative located their cable and I know. I was in on the staking of this line and I know the stakes were in the same location and has not been moved. . .
It couldn’t have moved by very very little. If it had been any other lines, installers, stakes wouldn’t even have been there. They’d have been tore down. Everything was intact, just as we staked it.

He further explained that he would have noticed if something had occurred during the six months because he was at the site about once a week.

As to the electric company’s action in continuing to dig after the cable was damaged, Southwestern Bell did not offer evidence of an industry standard requiring immediate cessation of activity after a cable is cut, nor did it indicate the extent, if any, to which its damages were enhanced by the second cut. Furthermore, Mr. Greening testified that when a new locate was performed after the cable was cut, no stakes had to be moved.

The trial court found that the passage of time would have been the proximate cause of Southwestern Bell’s damages if the situation had changed from the time of the locate until the time of the cable cut. The court found, however, that there was no evidence of such change and Southwestern Bell had not sustained its burden of proof.

We agree. There is a positive duty imposed on one excavating below the ground to inform himself as to whether telephone cables are there so he can avoid damaging them. See 74 Am Jur 2d Telecommunications § 36 p. 339 (1974); Annotation, 73 ALR 3d 987, § 3 p. 991 and § 4 pp. 999-1000 (1976). This was done. Therefore, without some positive evidence that a change occurred during the six month interval so as to make the delay negligent, Southwestern Bell did not meet its burden of proof.

We have held that “proximate cause must be proved, as a fact, by circumstantial or direct evidence, and not by speculation or conjecture.” Cockman v. Welder’s Supply Co., 265 Ark. 612, 580 S.W.2d 455 (1979), rehearing denied. Similarly, this court has stated that “[n]egligence cannot be established by guess work” and “where proven facts give equal support to each of two inconsistent inferences, neither of them can be said to be established by substantial evidence and judgment must go against the party upon whom rests the burden of sustaining one of the inferences as against the other (citation omitted).” Kapp v. Sullivan Chevrolet Co., 234 Ark. 395, 353 S.W.2d 5 (1962), rehearing denied.

Here, the proven facts were that Southwestern Bell located its buried cable for Ouachita Electric and six months later, during the digging, the cable was damaged. Neither side could prove the cause of the cutting but inasmuch as Southwestern Bell had the burden of proving negligence, the findings must go against it.

■ Affirmed.

Purtle, J., not participating.


text:
    Willie John JACOBS v. STATE of Arkansas
    CR 85-134
    699 S.W.2d 400
    Supreme Court of . Arkansas
    Opinion delivered November 25, 1985

      William R. Simpson, Public Defender, Thomas J. O’Hern, Deputy Public Defender, by: Jerry Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Charles R. Lucus, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Willie John Jacobs was convicted of three counts of breaking and entering and three counts of misdemeanor theft of property. He was sentenced to 12 years imprisonment on each count of breaking and entering to run consecutively and one year in jail on each theft conviction to run concurrently. He only appeals from one conviction for breaking and entering. We affirm, finding substantial evidence to support that conviction.

On August 1, 1984, a security guard, employed by J. C. Penney at the McCain Mall, noticed two youths standing near an Oldsmobile Cutlass on the parking lot and another youth sitting in the back seat. As the security guard continued his patrol, he kept the youths under surveillance, and they also watched him. When the guard was returning to the store in the direction of the Cutlass, one of the youths headed toward the store and was quickly followed by a second. The guard approached the car and noticed a window broken out. He detained the third youth and called the police. The police arrested the other youths in the mall after obtaining a description from the security guard. The security guard identified John Cummins and Roy Bush as the two youths who were standing by the car, and the appellant, Willie John Jacobs, as the one who was sitting in the car.

Upon investigation, the police found the Cutlass was broken into by someone throwing a steel roller bearing through the passenger side window. A radio, power booster, equalizer, and parts of the dash were missing. A second car nearby was discovered to have been broken into by the same method with an equalizer and three speakers being stolen from it. Jacobs consented to a search of his car which was on the parking lot. A roller bearing was found on the floorboard on the driver’s side of his vehicle. The property stolen from the two cars was in the trunk along with an umbrella and a pair of golf shoes. These last items were identified as being stolen from a truck on the same parking lot a week earlier on July 24,1984. The truck was broken into by the same method used on the other vehicles. Roller bearings were found in and around the violated cars and truck.

Jacobs appeals from the conviction for the July 24 charge, arguing there is insufficient evidence to prove he broke into and entered the truck, although he concedes he was in possession of the property which was stolen from the truck. After reviewing the evidence, four facts emerge which connect Jacobs to the July 24 breaking and entering: 1) Jacobs was in possession of the property stolen from the truck; 2) Bush testified that Jacobs broke into one of the cars on August 1; 3) Jacobs was seen in that car; and 4) the same modus operandi was used in all three crimes.

Considering first Jacobs’ possession of the stolen property, we have consistently held that possession of recently stolen property is prima facie evidence of guilt of burglary, larceny and possession of stolen property. Ward v. State, 280 Ark. 353, 658 S.W.2d 379 (1983); Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975). This presumption arises even when there is no direct evidence of breaking or entering by the defendant.

Second, Roy Bush, age 13, an accomplice on August 1, testified at trial that he broke into both cars that day, but later he changed his testimony to state that Jacobs broke into the Cutlass by throwing the roller bearing through the window. The jury was free to believe either story.

Third, Jacobs was seen by the security guard sitting in the back seat of the Cutlass. Therefore, there is evidence that Jacobs committed the breaking and entering of that vehicle.

Finally, the similarity of the method used to enter the vehicles is remarkable and the vehicles were all on the parking lot at McCain Mall. We have consistently held that evidence of the commission of other similar crimes or acts by a defendant at about the same time is admissible to show that the defendant committed the crime charged. Tarkington v. State, 250 Ark. 972, 469 S.W.2d 93 (1971).

Affirmed.

Purtle, J., not participating.


author: Steele Hays, Justice. Darrell Hickman, Justice,

text:
    ARKANSAS UNIFORM & LINEN SUPPLY COMPANY, INC., et al. v. INSTITUTIONAL SERVICES CORPORATION, et al.
    85-150
    700 S.W.2d 358
    Supreme Court of Arkansas
    Opinion delivered November 25, 1985

      Clark & Adkisson, for appellants.

      Henry & Henry, for appellees.
   Steele Hays, Justice.

Conway Memorial Hospital, a nonprofit corporation, has operated a general hospital in Conway, Arkansas since 1938. The lands and improvements are leased from the City of Conway; the equipment and personalty belong to the corporation. The articles of incorporation provide for seven members who are also the directors of the corporation. When a vacancy occurs or a director’s term expires, his or her successor is nominated by the board, subject to the confirmation of the Conway City Council. In the event of dissolution all assets of the corporation immediately vest in the City of Conway.

Until 1983 the hospital provided its own laundry service, but when its equipment became obsolete or inadequate, the board formed Institutional Services Corporation under the Arkansas Business Corporation Act to supply laundry service for itself and other hospitals near Conway, whose business ISC solicited. The corporation now regularly supplies laundry service to six other hospitals in central Arkansas. Thus far ISC has operated at a loss but that is expected to change. CMH owns all of the stock of ISC and the board of Conway Memorial Hospital serves as the board of ISC. No compensation is paid the board members. Meetings of the two boards are held simultaneously and the agendas are considered indiscriminately. ISC leases vehicles from CMH, which CMH is purchasing, as well as the land and equipment used for the laundry. CMH sets the rental payments from ISC in amounts equal to its own payments for the land and vehicles ISC leases.

Appellants are an individual and two corporations operating commercial laundries in Pope, Pulaski and Independence Counties. They filed suit against CMH and ISC to obtain judgments of $50,000 each, and to enjoin the defendants from operating a commercial laundry for anyone but themselves. The Chancellor held for the defendants and the plaintiff's have appealed. Three errors are asserted on appeal: (I) The Chancellor erred in refusing to hold that the arrangement between the City of Conway, Conway Memorial Hospital and Institutional Services Corporation violates Article 12, Section 5 of the Arkansas Constitution, (II) erred in holding the arrangement does not violate Amendment 13 of the Arkansas Constitution, and (III) in refusing to hold that the sole ownership of Institutional Services Corporation by Conway Memorial Hospital is an ultra vires act.

I

Article 12, Section 5 of the Arkansas Constitution reads:

5. Political subdivisions not to become stockholders in or lend credit to private corporations. No county, city, town or other municipal corporation shall become a stockholder in any company, association or corporation; or obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual.

Appellants point out that ISC has no identity of its own — the two corporations have the same board members, a single executive director, the same meeting times, intertwined agendas, all of which must be conceded. Unquestionably ISC is the puppet of CMH. But the issue is not whether ISC is the alter ego of CMH, but whether CMH is the alter ego of the Conway City Council, for unless that question can be answered affirmatively, the relationship between CMH and ISC is of little relevance in the context of the case before us.

Appellants cite two cases: Adams v. Bryant, 236 Ark. 865, 370 S.W.2d 432 (1963), and Halpert v. Helena-West Helena Industrial Development Corporation, 226 Ark. 620, 291 S.W.2d 802 (1956), but neither is controlling here. In Adams v. Bryant, by dictum, we said the prohibition of Article 12, Section 5, applied to the Clarksville Light and Water Commission, which used a part of its revenues to purchase $5,000 worth of stock in an industrial development venture. But plainly the Clarksville Light and Water Commission was the arm of the municipal government of Clarksville and was subject to its control. When it bought stock in a private venture the City of Clarksville was, in effect, the purchaser. We do not equate the status of the Clarksville Commission with that of CMH.

In Halpert, we struck down a statute (Act 404 of 1955) which purported to empower municipalities to purchase a “membership” in industrial development corporations as violating Article 12, Section 5. But as with Adams v. Bryant, the distinction is clear — the city was the purchaser/investor in each instance, unlike the situation presented in this case.

Appellants rely heavily on that section of the articles of incorporation of CMH pertaining to the selection of its directors and, to a lesser extent, on that section dealing with the disposition of its assets should dissolution occur. Neither governs the outcome here. The provision on dissolution which directs that all assets revert to the City of Conway is there to meet the requirements for charitable tax exempt status under Section 501 (c) (3) of the Internal Revenue Code and Ark. Stat. Ann. § 64-1924 (Repl. 1980). It simply insures that assets acquired for charitable use will never be put to private use. It does not strengthen the premise that CMH is simply an extension of the city council.

Nor does the provision pertaining to the replacement of board members give us reason to pause. Appellants’ brief argues repeatedly that the Conway City Council selects the board of CMH. That is a misstatement. The fact is the hospital board selects its own members, the council merely confirms the board’s nominees. Moreover, it is undisputed that over the nearly fifty years of the hospital’s existence the council has never failed to confirm a nomination, an unlikely record if the hospital’s autonomy were threatened.

Of greater significance is the fact the hospital itself belongs to the City of Conway and is leased to the hospital corporation. But that arrangement is expressly sanctioned by Ark. Stat. Ann. § 19-4713 (Repl. 1980), which gives broad authority to municipalities to engage in and adopt the methods here challenged and recognized by Section 1, Amendment 32 to the Arkansas Constitution. The rationale behind these provisions is the obvious benefits which accrue to a community from the availability of hospital services. We conclude that the leasing of a hospital by municipal government to be operated by a nonprofit corporation is not a violation of Article 12, Section 5.

II

Amendment 13 of the Arkansas Constitution prohibits a municipality from ever granting financial aid toward the construction of railroads or other private enterprises operated by any person, firm or corporation. Appellants cite no authority for the argument that money to which the City of Conway has a revisionary interest, that is, money belonging to CMH, is being funneled into a private corporation, ISC, in violation of Amendment 13. The executive director of the two corporations testified the expenses of operating ISC currently exceed its revenues and the loss is being paid by funds of CMH in the form of a promissory note to CMH from ISC. Appellants argue, therefore, that since CMH is supplying financial aid to ISC, the end result is that if CMH were dissolved, the assets reverting to the City of Conway would be reduced by the balance owed by ISC.

But the answer, as with the first argument, lies in the fact that CMH is not the arm of the city council and Conway is not granting financial aid to ISC either directly or indirectly. The reversion of assets to the City of Conway in the event of a dissolution is not an expectancy, but a mere possibility, and one which may never occur. Besides, as appellees point out, the reverter clause applies only to assets belonging to CMH at the time of dissolution and has no effect on assets prior to that uncertain event.

Ill

The final argument, unsupported by authority, is that ownership by CMH of ISC is an ultra vires act. Granted, a nonprofit corporation may exercise only such powers as are reasonably necessary to carry out the purposes for which the corporation was created, but it is undisputed that laundry service is essential to the operation of a hospital. ISC provides no dry cleaning service, which appellants might properly challenge, it provides only the laundry services attributable to hospital needs.

When its in-house laundry could no longer meet the modern needs of the hospital, CMH was confronted with outlays in the range of $450,000 for a building alone, not counting new laundry equipment. The method CMH settled on involved a much lesser investment. And while some operating loss is occurring at this stage, the expectation, at least, is that that situation is temporary. The articles of incorporation of CMH empower the corporation to do all things “necessary, convenient, useful or incidental” to attain the purposes of its existence and we cannot say the means selected by CMH to provide expanded laundry services is an excessive exercise of powers. See generally, Hilger v. Harding College, Inc., 231 Ark. 686, 331 S.W.2d 851 (1960); School District of Fort Smith v. Howe, 62 Ark. 481, 37 S. W. 717 (1896).

We have no doubt these seven hospitals could by a variety of methods pool their laundry requirements and reach essentially these same ends. The fact that those ends are achieved by a corporation owned by CMH does not, of itself, render those methods unlawful. The portals of a free enterprise marketing system are as open to charitable entrepreneurs as to private ones, witness the gift shops, restaurants, clothing and variety stores operated by charitable corporations in many communities. There is no indication that the seven hospitals with ISC are not charitable institutions.

Affirmed.

Hickman, J., dissents.

Purtle, J., not participating.

Darrell Hickman, Justice,

dissenting.

I disagree with the majority because I think the hospital is an arm of the city and is, therefore, prohibited from those activities in which the city may not engage. The city may not operate a laundry and compete with private firms and neither may the city’s hospital.

The hospital in this case is a public, not private, hospital in Conway, Arkansas. The city apparently built it, or acquired it. Such ownership is expressly permitted. Amendment 32 to the Arkansas Constitution titled “County or City Hospitals” provides for taxes to support such “public” hospitals. Ark. Stat. Ann. § 19-4713 (Repl. 1980) also provides that cities can own hospitals.

The Arkansas Constitution recognizes other endeavors that might otherwise be considered private endeavors. For example, Amendment 49 to the constitution provides for the issuance of bonds after an election for securing and developing industry. The amendment was necessary perhaps not just to expressly provide for taxing or bonded indebtedness, but also to overcome other provisions of the constitution which limit and define public endeavors. See Ark. Const. Art. 16 as amended by Amend. 13.

At the same time Article 16 provides: “No municipality shall ever grant financial aid toward the construction of railroads or other private enterprises operated by any person, firm or corporation, . . .” (Italics supplied.)

Other relevant provisions on the use of municipal credit and property bear mentioning. The first sentence of Amendment 13 reads: “Neither the State nor any city, county, town or other municipality in this State, shall ever lend its credit for any purpose whatever . . .”

Article 12, Section 5 reads: “No county, city, town or other municipal corporation shall become a stockholder in any company, association or corporation; or obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual.”

Under these provisions, Conway may not own or participate in the ownership of this commercial laundry. The majority says this is not the city’s hospital and that it belongs to the nonprofit corporation. What then is the purpose of the corporation — to run someone else’s hospital? It is still a public hospital — Conway’s public hospital. The city owns the hospital, that is not denied. The hospital owns all the stock in the laundry; the hospital owns the land, building, equipment, and eight vehicles used by the laundry. The board members of the hospital are the board members of the laundry. It does not take a large step in logic to realize that the city, in fact, owns the laundry. But the majority prefers to ignore such logic.

We might as well say this nonprofit corporation could convert itself into a corporation for profit and take over any private endeavor. What the city may not do directly, it may not do indirectly. Adams v. Bryant, 236 Ark. 865, 370 S.W.2d 432 (1963); Talbert v. Helena-West Helena Industrial Development Corp., 226 Ark. 620, 291 S.W.2d 802 (1956).

The majority’s holding means that this corporation can, under the scheme approved in this case, enter into any private business, a dry goods store, a drug store, or even a dress shop. It would be better to simply hold, as the constitution states clearly in several places, that the city cannot directly, or through its agencies, operate a private business, unless that endeavor has express constitutional sanction.

In Lord v. Denver, 58 Colo. 1, 143 P. 284 (1914), acity bond issue was considered which would aid a railroad. The court found no authority that even hinted that “ . . . it is within the ordinary powers of a municipal corporation to construct an improvement, convenience, or necessity with the avowed and declared purpose of selling the same or an interest therein to a private person or corporation.” This seems to be repugnant to every conception of the term “municipal purpose.” The majority would like to alter the facts and find the laundry is not commercial, or a corporation for profit. That is, of course, an impermissible act on their part.

There is no reason to add to the blur that exists between what is a public and a private endeavor; running a commercial laundry is not a public endeavor.


author: David Newbern, Justice.

text:
    CESSNA FINANCE CORPORATION v. Homer SKELTON, et al.
    85-179
    700 S.W.2d 44
    Supreme Court of Arkansas
    Opinion delivered November 25, 1985

      Nance, Nance & Fleming, P.A., by: C.B, Nance, Jr., for appellant.

      Skillman & Durrett, by: Chadd L. Durrett, Jr., for appellees.
   David Newbern, Justice.

The appellant, Cessna Finance Corporation (Cessna), brought a garnishment action in Crittenden County Circuit Court with respect to funds being held by the Crittenden County Sheriff. The money, a $25,000 cashier’s check, had been deposited with the sheriff by Homer Skelton in lieu of bail for Jack Hoback who had been charged with a criminal offense. After the bond had served its purpose and Hoback had appeared for his criminal trial, the sheriff brought a separate interpleader action in the chancery court, naming Cessna, Hoback and Skelton as possible claimants of the money. Except for the ten percent he retained pursuant to Ark. R. Crim. P. 9.2, the sheriff had no interest in the money. The chancellor held that the remaining money belonged to Skelton and was not subject to attachment by Cessna to satisfy a debt owed by Hoback to Cessna. We affirm.

Cessna argues first that it was error for the circuit court to allow the garnishment action to be transferred to the chancery court and that the chancellor cannot take jurisdiction of funds on deposit in the circuit court. Secondly, Cessna argues that the money belonged to Hoback and thus should have been subject to attachment to satisfy Hoback’s debt to Cessna. Cessna’s last argument is that the chancellor erred in implying, at least, that Ark. Stat. Ann. § 31-118 (Repl. 1962) is unconstitutional to the extent that by permitting bail bond money to be attached it may have the effect of denying bail altogether. We need not address this last argument because the chancellor’s remarks about the unconstitutionality of the statute had no effect on the outcome of the case either at trial or in this appeal.

1. Transfer to Chancery Court

The garnishment action which was begun in the circuit court was transferred to the chancery court in response to a motion by the sheriff, who was the garnishee, after he had filed his interpleader action in the chancery court. The circuit court ordered the garnishment action transferred to the chancery court, recognizing that the interpleader action was the proper vehicle to ascertain the rights of all parties in the funds.

Cessna contends the funds were in custodia legis, and thus subject only to the circuit court’s order, because they were in the hands of the sheriff under the authority of the circuit court. The only case authority cited in support of this argument is Ford v. Judsonia Mercantile Co., 52 Ark. 426, 12 S.W. 876 (1889), in which it was held that property which had been seized by a sheriff pursuant to a writ of attachment and was thus under the control of the circuit court could not be subjected to a receivership by the chancery court. In that case there was a jurisdictional conflict. Here the circuit court ordered the attachment case transferred, saying specifically that the interpleader action in chancery was “. . . the proper cause of action to litigate the rights of the respective parties in the money held by R. L. Simmons, Sheriff. . . .” We have in this case no possible dispute between the circuit and chancery courts over jurisdiction, thus Ford v. Judsonia Mercantile Co., supra, does not apply. In transferring the case, the circuit court properly applied the general rule that interpleader takes precedence over actions filed earlier involving the same subject matter. Goad v. Goad, 238 Ark. 12, 377 S.W.2d 822 (1964). While the sheriff could have had his interpleader as a defendant in the circuit court garnishment action, Ark. R. Civ. P. 22, we find no error in the transfer of that action to the interpleader litigation he brought as a plaintiff in the chancery court.

2. Whose Money Was It?

We agree with Cessna’s argument that the money put up as a bail bond was subject to garnishment while it was in the hands of the sheriff. Ark. Stat. Ann. § 31-118 (Repl. 1962); McGill v. Robbins, 231 Ark. 411, 326 S.W.2d 540 (1959). However, Cessna argues further that because Ark. Stat. Ann. § 43-719 (Repl. 1977) says “he,” meaning the criminal defendant, in this case Hoback, may deposit money in lieu of bail, we must find the money belonged to Hoback. Cessna also contends that because such bond money could be subjected to a fine imposed on Hoback we must conclude the money belonged to him and was a loan or gift to him from the bondsman Skelton. These are tenuous arguments at best, and we are simply unwilling to say that because § 43-719 permits the criminal defendant to deposit cash in lieu of bail the money must be deemed to belong to him. No authority cited by the appellant forces that conclusion, and it would have a disastrous effect on our bail bond system if money put up by a bondsman were held to be subject to garnishment for the debts of the criminal defendant.

Nor are we convinced that because the money may be subjected to a fine levied in the criminal proceedings it therefore must become the property of the criminal defendant. While the bail bondsman may run the risk of having his money subjected to the criminal defendant’s obligation to the state, nothing cited by Cessna holds he runs the risk of having the money subjected to all the criminal defendant’s debts.

While we have not previously been called upon to decide this question of ownership of money put up as a bail bond by a third party, other jurisdictions have, and they have concluded the money belongs to the party who deposited it on behalf of the accused. Mundell v. Wells, 181 Cal. 398, 184 P. 666 (1919); Wright and Taylor v. Dougherty, 138 Iowa 195, 115 N.W. 908 (1908).

All of the obj ective evidence showed Skelton owned the money, and he delivered it to the sheriff expecting to have it returned, less the required deduction, upon Hoback fulfilling his appearance obligation. It was thus proper for the chancellor to hold the money was not subject to garnishment for Hoback’s debt.

Affirmed.

Purtle, J., not participating.


text:
    Jo Ann COOK v. The MUNICIPAL COURT OF PINE BLUFF, Charles GOLDBERGER, Judge
    699 S.W.2d 741
    Supreme Court of Arkansas
    Opinion delivered November 25, 1985

      Appellant, pro se.
    No response.
   Per Curiam.

Although not so entitled, this pro se petition is in substance a motion for a rule to direct the clerk to file a transcript without requiring the petitioner either to pay the required filing fee or to submit proof of indigency.

It is argued that the petitioner is entitled to proceed without paying a filing fee because the Arkansas Constitution provides in Article 2, § 13, that every person “ought to obtain justice freely, and without purchase.” That same interpretation of the Constitution was urged in Marshall v. Holland, 168 Ark. 449, 270 S.W. 609 (1925), where it was argued that under that constitutional provision a statute requiring a deposit of advance costs in each case was unconstitutional. The court rejected that argument, saying: “It is within the power of the Legislature to make reasonable provisions for the payment of cost of litigation so as to help defray the expenses of the courts. Our conclusion is that this provision of the statute is not invalid.” The same reasoning applies to the statute requiring the payment of a filing fee in this court. As far as we know, filing fees are universally required in courts throughout the nation, on the premise that it is proper to require litigants to pay a small part of the expense necessary for the maintenance of the courts.

The motion is denied.

Purtle, J., not participating.


text:
    Michael HALLMAN v. STATE of Arkansas
    CR 85-153
    698 S.W.2d 803
    Supreme Court of Arkansas
    Opinion delivered November 25, 1985

      J.F. Atkinson, Jr., for appellant.
    No response.
   Per Curiam.

Attorney J.F. Atkinson, Jr., moves this court to accept a brief on behalf of his client, Michael Hallman. The brief was due on November 1,1985, and was tendered seven days late. We accept the brief because we do not wish the appellant to suffer loss of this criminal appeal because of Mr. Atkinson’s negligence. The only excuse offered is that the record is large. Mr. Atkinson notes in his motion that he is a court appointed attorney in this case. We wish particularly to emphasize that the professional obligations of attorneys appointed by the court are the same as those of all others representing the accused in criminal cases.

Motion granted.

Purtle, J., not participating.


text:
    Joseph PERRY, Jr. v. STATE of Arkansas
    699 S.W.2d 739
    Supreme Court of Arkansas
    Opinion delivered November 25, 1985
    Appellant, pro se.

      Steve Clark, Att’y Gen., by; Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petitioner, Joseph Perry, Jr., was convicted on March 8,1985 of driving while intoxicated. His notice of appeal was timely filed on April 3, 1985, but a transcript was not ordered. Also on April 3, the petitioner sought permission to proceed In Forma Pauperis. That pro se petition was denied by the trial court and, subsequently, by this court. On September 18, 1985, Perry’s pro se motion for reconsideration was denied by this court. He ordered a transcript of the trial proceedings on September 25, 1985.

Petitioner Perry filed his first motion for extension of time to lodge the transcript on July 2, 1985 in the Lee County Circuit Court. Time was extended by the trial judge until October 8. On October 3, in response to a second motion by Perry, a judge who was not the trial judge found it was “impossible or impracticable” for the record to be completed on time, and extended the date to lodge the transcript until November 1,1985. Perry tendered the transcript on October 28 and it was refused by the Supreme Court Clerk as out of time. In this motion for rule on clerk, petitioner asks this court to accept the record and maintains it was not tendered too late since he relied on a judge’s order extending the time until November 1.

The motion is denied. Arkansas R. App. P. 5(b) provides that a trial court can extend the time for filing the record on appeal but “[i]n no event shall the time be extended more than seven (7) months from the date of the entry of the judgment, decree or order. . . .” Here, the judgment was entered March 8, and the transcript therefore had to be filed by October 8. Some exceptions are allowed in the event certain postjudgment motions are filed pursuant to Ark. R. App. P. 4(b) & (c), but none of those motions were filed by this petitioner and so the rule is inapplicable. See Pentron Corp. v. Delta Steel & Const. Co., 286 Ark. 91, 689 S.W.2d 539 (1985).

Although the petitioner argues reliance on a judge’s order as the basis for his noncompliance with Rule 5(b), he demonstrated an awareness of the seven month time limitation in his own motion filed September 25 where he stated:

In our conversation of the 24th, Sept., you stated that you would extend the time to the end of the 7 month period. By your calculation, this time period are up [sic] Oct. 8,1985.
At this time I request that you extend the time for me to file the transcript to its maximum time allow by law.

In its order of September 26, the trial court extended the time to October 8 and acknowledged in writing that that was “the maximum time the Court can extend for filing of the transcript.” A later extension until November 1 was granted by a different judge than had granted the previous extension.

The petitioner cannot succeed on his motion by virtue of his reliance on the action of the judge who approved the final extension to November 1. October 8 was and is the final date for lodging this appeal. We have held that “ [i] t is the duty of counsel, not the judge, not the clerk, not the reporter, to perfect an appeal.” Finley v. State, 281 Ark. 38, 661 S.W.2d 358 (1983). We hold pro se litigants to the same requirements to which we hold attorneys. Weston v. State, 265 Ark. 58, 576 S.W.2d 705 (1979). Furthermore, we have specifically held that pro se parties are responsible for following rules of appellate procedure. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984).

Accordingly, the motion for rule on clerk is denied.

Purtle, J., not participating.


author: George Rose Smith, Justice.

text:
    RIVER VALLEY, INC., et al. v. AMERICAN STATES INSURANCE COMPANY
    85-193
    699 S.W.2d 745
    Supreme Court of Arkansas
    Opinion delivered December 2, 1985
    [Rehearing denied January 13, 1986.]

      Walter Murray and William Frye, for appellants Shrader Construction Co., Inc. and Shirley Excavation and Clearing, Inc., a Joint Venture, and Shirley Excavating and Clearing, Inc.

      Everett Martindale, for appellant Central Industrial Electric Inc.

      Mike Moore, for appellant Ben M. Hogan Company.

      Wood Law Firm, by: Doug Wood and Steven R. Davis, for appellee.

       Purtle, J., not participating.

   George Rose Smith, Justice.

This second appeal in related litigation comes to this court under Rule 29(l)(j). For our first opinion, see B.G. Coney Co. v. Radford Petroleum Equipment Co., 287 Ark. 108, 696 S.W.2d 745 (1985).

B.G. Coney Company was the prime contractor for the construction of a shopping center in Little Rock. Coney failed to pay all its subcontractors and materialmen, some pf whom are the present appellants. Coney had executed a $2,090,000 contractor’s bond, on which the appellee, American States Insurance Company, was the surety. When the appellants filed their claims against the bond, the surety denied liability on the ground that the only obligees named in the bond were the developer of the shopping center and the bank which had financed it. The appellants responded by asking that the bond be reformed to conform to the terms of an earlier bond that would have covered the claims of subcontractors and materialmen. The chancellor refused the request for reformation, on the ground that it is not supported by clear and convincing evidence. The correctness of that decision is the principal issue on appeal.

The facts are almost undisputed. The first bond, signed on June 14, 1982, was a performance and payment bond. It would have covered the claims of the appellants and have complied with the pertinent statutes, including Ark. Stat. Ann. § 51-635 (Repl. 1971). The bank, however, refused to accept that bond, because the bank’s financing agreement required that it be named as an obligee in the bond, and the only obligee in the first bond was the developer of the shopping center. That bond was accordingly marked VOID.

It was replaced by a second bond in the same amount and executed by the same local agent for the corporate surety, the appellee. That agent, however, instead of using the same bond form with an added obligee, selected a different form of bond, called a dual obligation bond, which provides that it protects only the developer and the bank. That bond was accepted by the obligees and is the one now sought to be reformed.

The testimony in favor of reforming the bond is so overwhelming, so nearly undisputed, that reformation must be granted. Both the local insurance agent and his employee, who signed the bonds, testified that the only reason for the substitution of the second bond was to add the bank as a second obligee. The bank’s agent, Catlett, and the developer’s agent, LaSusa, testified to the same effect. It was stipulated that Coney, the only other person involved in the execution and acceptance of the second bond, did not know that it would deprive subcontractors and others of the rights afforded by the first bond. Thus it is affirmatively shown that everyone involved in the transaction, without exception, mistakenly believed that the second bond was making no change except the addition of the bank as an obligee. This proof amply satisfies the requirement that it be clear and convincing.

Counsel for the appellee make two subordinate arguments on this point. It is insisted that the obligees accepted the second bond; its terms are therefore controlling. The answer, of course, is that the acceptance was qualified by the parties’ mutual mistake. It is also argued that the basic contract between the contractor and the developer did not positively require a performance and payment bond, leaving the obligees free to accept the dual obligation bond. If, however, such a choice was open to the obligees, the choice was made when the first bond was signed, since everyone understood that those terms would be embodied in the second bond. There is no evidence whatever that anyone intended for the second bond to omit the coverage now being claimed by the appellants.

Finally, the appellee argues on a different basis that the decree should at least be affirmed as to two of the appellants, Schueck Steel, Inc., and Lewis Trenching Company, because they supplied labor and materials to subcontractors rather than directly to the prime contractor. It is pointed out that even the first bond purported to protect only persons “who have contracts directly with the Principal [Coney] for labor or materials.” The argument is that since Schueck and Lewis dealt with subcontractors, they have no cause of action against Coney or its surety.

The flaw in this argument is that a statutory bond must be construed in the light of the statutes. With respect to the same statute that is involved in this case, Section 51-635, supra, we analyzed a similar contention in Sweetser Const. Co. v. Newman Bros., 236 Ark. 939, 371 S.W.2d 515 (1963). The essence of our analysis was that “one who supplies material to a materialman, who in turn supplies the subcontractor, is to be relegated to the status of a stranger to the original contract.” Thus, for example, if Jones sells materials to Brown on the open market, and Brown then sells them to a subcontractor who incorporates them into the structure being built, Brown has a lien as a materialman, but Jones is too far removed.

Under that test both Schueck and Lewis have valid claims. Schueck sold steel to a construction company, which presumably used it in building the shopping center. Lewis dug trenches for a subcontractor who laid sewer pipe in them to serve the shopping center. In both instances there was sufficient privity of contract, for the claims had their origin in the original contract and grew out of that contract, as we said in Sweetser.

Reversed and remanded, the appellants’ claims against the appellee to be allowed.

Purtle, J., not participating.


author: Steele Hays, Justice.

text:
    Leonard HIGGINS v. GENERAL MOTORS CORP. and SMART CHEVROLET COMPANY
    85-160
    699 S.W.2d 741
    Supreme Court of Arkansas
    Opinion delivered December 2, 1985
    [Rehearing denied January 13, 1986.]

      Gary Eubanks & Associates, by: Darryl E. Baker and James Gerard Schulze, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellee, GMC.

       Purtle, J., not participating.

   Steele Hays, Justice.

This products liability suit was brought by Leonard Higgins, appellant, against Smart Chevrolet and General Motors Corporation, appellees. Higgins purchased a 1979 Malibu from Smart Chevrolet on July 3, 1979, and complained that the transmission was faulty. On November 12, 1979, after waiting at an intersection for a traffic light to change, Higgins stepped on the accelerator, and, he said, the car shot across the intersection and onto the median. The car was undamaged but Higgins was taken by an ambulance to a hospital where he was treated. He attributed the unusual behavior of the vehicle to a malfunction in the transmission and brought suit against Smart and General Motors, alleging negligence, breach of warranty and strict liability. At the close of appellant’s case the court granted a defense motion for a directed verdict. Appellant brings this appeal, the primary contention being the proof was sufficient to submit the case to the jury.

As there was no proof whatever to establish the negligence theory, we can summarily dispose of that claim. The two elements in dispute at trial were: 1) that a defect in the product existed and 2) that such defect was the proximate cause of the injury. As these two elements of a strict liability case are essentially the same required in a breach of warranty case, we will discuss the evidence in terms of strict liability. See Ark. Stat. Ann. § 85-2-314 and § 85-2-715; § 85-2-318.2 and see E.I. Du Pont Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).

A plaintiff is no longer required to prove negligence in a strict liability claim but still must prove the product was defective so as to render it unreasonably dangerous, and that the defect was the cause of the injury. The mere possibility this has occurred is not enough, there must be evidence from which the jury can conclude that it is more probable than not. Southern Co. v. Graham Drive-In, 271 Ark. 223, 607 S.W.2d 611 (1980).

The difficult problems are those of proof by circumstantial evidence. Strictly speaking, since proof of negligence is not in issue, res ipsa loquitur has no application to strict liability; but the inferences which are the core of the doctrine remain, and are no less applicable. The plaintiff is not required to eliminate all other possibilities, and need not prove his case beyond a reasonable doubt. It is enough that he establishes a preponderance of probability. In the absence of direct proof of a specific defect, it is sufficient if a plaintiff negates other possible causes of failure of the product, not attributable to the defendant, and thus creates a reasonable inference that the defendant is responsible for the defect. Southern Co. v. Graham, supra; and see Harrell Motors, Inc. v. Flanery, 272 Ark. 105, 612 S.W.2d 727 (1981); Mixon v. Chrysler Corp., 281 Ark. 202, 663 S.W.2d 713 (1984).

Proof of a specific defect is not required when common experience teaches the accident would not have occurred in the absence of a defect. The mere fact of an accident, standing alone, does not make out a case that the product is defective, but the addition of other facts tending to show the defect existed before the accident, may be sufficient. Harrell Motors, Inc. v. Flanery, supra.

We note that under appropriate circumstances, a user’s testimony alone may be sufficient evidence. See, Prosser and Keeton on Torts (5th Ed. 1984), § 99, pp. 696-697; Stackiewicz v. Nissan Motor Corp.,_Nev__, 686 P.2d 925 (1984); Tweedy v. Wright Ford Sales, Inc., 64 Ill.2d 570, 2 Ill. Dec. 282, 357 N.E.2d 449 (1976); Brownell v. White Motor Co., 260 Or. 251, 490 P.2d 184 (1971).

Here, we are reviewing an order granting a motion for a directed verdict. In that situation we view the evidence most favorably to the party against whom the verdict is directed, including all inferences favorable to him, and if any substantial evidence exists which tends to establish an issue in favor of that party, it is error for the court to take the case from the jury. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984).

Appellant presented no direct proof of a defect or of the cause of the accident. He relied on circumstantial evidence, primarily his own testimony. Initially, we could not say that when a car moves suddenly, even swiftly, into an intersection common experience tells us it would not have happened absent a defect. Therefore, we examine the evidence to see to what extent appellant negated other causes of the accident.

Appellant offered proof to negate several possible causes, testifying he was in excellent health prior to the accident, that the weather was good on that day and there had been no misuse or abuse of the car. Our difficulty comes in finding appellant adequately negated any cause of the accident due to driver error or control.

While appellant waited for the light to change at the intersection, some of his attention was focused on the radio as he adjusted the controls. He described an awkward position — leaning forward and turning to the right with his left leg “hung up” under the steering wheel. In response to further questioning appellant stated:

It was because in that small car, I had to scoot the seat way back. My wife drove it and I scoot the seat way back and get comfortable and then when I got ready to adjust the radio, the radio was way down kind of near the floor like. So, I had to reach forward and down to get it.

While in this position, the light changed and appellant stepped on the gas pedal. He knew the car accelerated but testified he heard his back pop and immediately blacked out. The next thing he remembered was a policeman standing by the car. He said he did not press that hard on the accelerator, but his testimony as to the amount of pressure applied was equivocal:

Q: [To] what extent did you push the [accelerator]?
A: Well, it’s really hard to say. Just a little bit though. It wasn’t very hard . . . To my best recollection. ... I stepped on the accelerator just a little bit, as far as I can remember. . . .

Appellant testified that in the past the pattern of the car’s malfunction had been to hesitate before it would move. On this occasion, appellant did not know whether there had been any hesitation. He only remembered the acceleration, his back popping and waking up to a policeman by the car. His account of previous difficulties with the car did not indicate it had ever accelerated as quickly as it had this time, and although he said the condition had been getting worse he testified it had never moved at this speed before.

As to the proof of the defect itself appellant testified the car had had transmission problems intermittently from the time he bought it. The trouble was manifested in the car’s hesitation before going into gear. He had taken it to the dealer on several occasions but he continued to have the same problem. The car was about four months old and had approximately 6,000 miles on it.

After the accident appellant had a mechanic completely disassemble the transmission to look for any defect. The mechanic testified as an expert for appellant. He found a plug out of place, but could not say whether it was out before the accident or had fallen out sometime afterward. He also found a black peppery substance in the transmission fluid. However, he could not say whether these defects would cause the car to behave as appellant described. The expert testified the problems he would expect these two conditions to create were hesitation and the car failing to move at all. The expert’s testimony was inconclusive as to the existence of any defect and even tended to support the theory that the accident was due to driver error.

Even if we were to assume there was some defect, the evidence was insufficient to show that such a defect was the cause of the car’s behavior on the day of the accident. Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Dan Cowling & Associates v. Clinton Board of Education, 273 Ark. 214, 618 S. W.2d 158(1981). The evidence presented in this case, even when viewed most favorably to appellant, does not go beyond conjecture or speculation nor raise a reasonable inference that the defect was the cause of the accident.

Appellant also argues error in the court’s exclusion of certain expert testimony by the mechanic who had disassembled the transmission. It is not necessary for us to decide the argument since we affirm the trial court in granting a motion for a directed verdict. In reviewing the expert’s proffered testimony, although it might have included some additional evidence of the possibility of a defect, there was nothing more said by the expert to indicate that a defect was the more probable cause of the accident. See, Norland v. Washington General Hospital, 461 F.2d 694 (1972).

As to appellant’s other points of error, we do not address them as they do not affect the sufficiency question and would only be of significance if the case were remanded for another trial.

Affirmed.

Purtle, J., not participating.


text:
    Faye CASEY, et al. v. Donald J. CASEY and Jo Ann CASEY
    85-175
    700 S.W.2d 46
    Supreme Court of Arkansas
    Opinion delivered December 9, 1985

      Boyett, Morgan & Millar, P.A., by: Mike Millar, for appellants.

      Peel & Eddy, by: David L. Eddy, for appellees.
   Jack Holt, Jr., Chief Justice.

This case involves the interpretation of a restriction placed on a devise to appellee which, if violated, would shift the interest in the inheritance to appellants. The trial court held the restriction was invalid as an unreasonable restraint on alienation and too vague to be enforced and that appellee thus held the property in fee simple absolute. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(p).

Donald Casey, appellee, is the son of the testator, Fred Casey. The testator left $50.00 to each of six of his seven children and left the rest of his estate to appellee. In 1974, shortly before he died, the testator added a codicil which placed a restriction on appellee’s inheritance. The appellee filed a petition to remove the cloud from the title in the Pope County Chancery Court on October 2, 1981 in which he sought to have the restriction declared void. The petition was challenged by appellants, who would take the property upon a violation of the restriction.

The testator’s codicil stated in pertinent part:

FIRST:. . .Karen Kim Casey is the daughter of Donald J. Casey. It is my will that Karen Kim Casey shall never own or possess as a tenant, nor be on as a guest for more than one week per each calendar year any of the real estate which I have devised to my son, Donald J. Casey.
SECOND: It is my intent to create a defeasible estate in Donald J. Casey in the nature of, and conditional limitation over, or executory devise, with the fact of termination depending upon the ownership or possession of Karen Kim Casey as set out above. It is my will that in the event Karen Kim Casey should ever own any part of the land which I heretofore bequeathed to Donald J. Casey or in the event she should ever possess said land as a tenant, or in the event she should ever be a guest on said land or any of it for more than one week of each calendar year, that the estate of Donald J. Casey immediately terminate as to that part of my real estate which I have devised and bequeathed to him and that said real estate shall immediately become the property of Sam Casey in fee simple absolute and to his heirs and assigns forever. It is further my will to create a vested estate in Sam Casey and his heirs in fee simple absolute in the nature of the interest created by a springing or shifting use.

We agree with the trial court that the restriction is invalid. The trial court based its ruling in part on a finding that the phrase “never own or possess as a tenant” was vague, in that it could be read two ways, depending on whether a comma is inserted after “Own”. We see no vagueness or ambiguity, particularly when reading the will as a whole, but we do agree with the chancellor and find that the restriction is an unreasonable restraint on alienation.

A direct restraint is “a provision which, by its terms, prohibits or penalizes the exercise of the power of alienation.” Broach v. City of Hampton, 283 Ark. 496, 677 S.W.2d 851 (1984); L. Simes, Law of Future Interests 237 (1966). There are three types of direct restraints: disabling restraints, forfeiture restraints and promissory restraints. This case involves a forfeiture restraint, which “exists when, by the terms of an instrument of transfer, the estate will be subject to forfeiture on alienation or will be terminated.” Broach supra; Simes supra. “In general, the courts adhere to the rule that all forfeiture restraints on the alienation of a legal fee simple interest in land are void. This rule operates to give full effect to the conveyance or devise except that the condition or limitation with respect to alienation is eliminated.” Broach supra; Simes supra.

Restraints on alienation may be upheld if they are a reasonable means of accomplishing a legal and useful purpose.

The Restatement of Property § 406 provides:

The restraint on the alienation of a legal possessory estate in fee simple which is, or but for the restraint would be, indefeasible is valid if, and only if,

(a) the restraint is a promissory restraint or a forfeiture restraint, and
(b) the restraint is qualified so as to permit alienation to some though not all possible alienees, and
(c) the restraint is reasonable under the circumstances, and
(d) if the restraint is a forfeiture restraint, the requirements of the rule against perpetuities are satisfied.

4 Restatement of Property § 406 (1944).

Comment a to § 406 further states:

To uphold restraints on the alienation of such estates it must appear that the objective sought to be accomplished by the imposition of the restraint is of sufficient social importance to outweigh the evils which flow from interfering with the power of alienation or that the curtailment of the power of alienation is so slight that no social danger is involved.

This rule applies even when the restraint on alienation is slight.

All the circumstances of the conveyance should be considered in determining the reasonableness of the restraint. When present, the following factors support the conclusion that a restraint is unreasonable:

1. the restraint is capricious;
2. the restraint is imposed for spite or malice;
3. the one imposing the restraint has no interest in land that is benefited by the enforcement of the restraint;
4. the restraint is unlimited in duration;
5. the number of persons to whom alienation is prohibited is large.

Restatement § 406 comment i.

Applying these and other factors, we conclude that this restraint is unreasonable. The restraint did not protect any interest the testator had in the land while he was living, and only worked to keep his granddaughter off the land after his death. The duration of the restraint is limited to the lifetime of his granddaughter, who is 28, so it will likely remain for the entire period that appellee holds the land.

This is a case of first impression in Arkansas. In Fleming v. Blount, 202 Ark. 507, 151 S.W.2d 8 (1941), a forfeiture restraint was also at issue, but in that case we found the restraint was of short duration and served a worthwhile purpose. Further, the court held there that the testator’s beneficiaries did not acquire fee simple title in the land. Therefore, that restraint was not contrary to any public policy and was valid. That case in no way suggests that a restraint such as the one before us now would be reasonable and does not offer precedent or guidelines for the situation now confronting us.

Here, there is no worthwhile purpose evident in this restraint; it appears to be capricious, and imposed for spite or malice. At trial, no one could explain why the testator harbored such animosity toward his granddaughter.

Though the restraint is limited directly to only one person, the appellee’s daughter would be a natural heir of appellee, which makes the restraint more significant. Further, to find that a restraint is reasonable on this factor alone would lead to difficult and arbitrary line-drawing in determining when a limited number of restricted transferees is too many.

This restraint also had indirect effects which go beyond the direct restriction. “An indirect restraint on alienation, arises when an attempt is made to accomplish some purpose other than the restraint of alienability, but with the incidental result that the instrument, if valid, would restrain practical alienability.” L. Simes and A. Smith, The Law of Future Interests, § 1112 (2d ed. 1956). This litigation was prompted by the suspension of royalties to appellee for a well drilled on the land by Essex Exploration Company because of this cloud on the title. Thus, Essex’s present posture is a clear example of a present and continuing restraint on practical alienability resulting from such a restriction.

For public policy reasons, some cases have held that provisions by which the acquisition or retention of property interests was made to depend on the separation of parent and minor child were illegal conditions. “A broader objection has appeared on occasion against any provision which tends to disrupt or interfere with family relations.” American Law of Property, Vol. VI, § 27.19 (1974). Though this restraint does not require total separation of father and daughter, its obvious effect, if not purpose, is to interfere with family relations.

For these reasons, the restriction is invalid.

Affirmed.

Purtle, J., not participating.


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    Stephen P. ISELY v. Susan ISELY
    85-247
    700 S.W.2d 49
    Supreme Court of Arkansas
    Opinion delivered December 9, 1985

      Mark Cambiano, for petitioner.

      Mobley & Smith, by: William F. Smith, for respondent.
   Jack Holt, Jr., Chief Justice.

Stephen Isely filed a Petition for Writ of Prohibition challenging the jurisdiction of the Pope Chancery Court to hear a divorce suit brought against him by the respondent, Susan Isely. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(f).

The Isleys were married in April, 1978 and lived in Morrilton, Conway County, Arkansas, until April, 1985. When they separated on April 15, 1985, Mrs. Isely returned to her parent’s home in Pope County and Mr. Isely remained in Morrilton. Mrs. Isely filed for divorce on April 17,1985 in Pope Chancery Court. Mr. Isely filed a motion to dismiss the action, claiming that Mrs. Isely did not reside in Pope County and venue, therefore, lay in Conway County. After a hearing on the venue question, the chancellor denied the motion to dismiss. Mr. Isely subsequently filed this Petition.

The Writ of Prohibition must be denied. Venue in a divorce proceeding lies “in the county where the complainant resides.” Ark. Stat. Ann. § 34-1204 (Supp. 1985). Mrs. Isely’s residence was disputed by the parties. We have consistently held that, not only is a writ of prohibition an extraordinary and discretionary writ, but it is only granted “when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted.” (emphasis added) Miller v. Lofton, Judge, 279 Ark. 461, 652 S.W.2d 627 (1983). We recently stated in Statewide Health Coordinating Council v. Circuit Court of Pulaski County, 287 Ark. 84, 696 S.W.2d 729 (1985):

if the existence or non-existence of jurisdiction depends on contested facts which the Circuit Court is competent to inquire into and determine, a Writ of Prohibition will not be granted, though this Court may be of the opinion that the questions of fact have been wrongly determined by the Circuit Court and that their correct determination would have ousted the jurisdiction.

Where, as here, the residence of a party is a disputed fact, prohibition will not lie. See Murry v. Maner, 230 Ark. 132, 320 S.W.2d 940 (1959); Twin City Lines, Inc. v. Cummings, Judge, 212 Ark. 569, 206 S.W.2d 438 (1947).

Accordingly, the writ is denied.

Purtle, J., not participating.


text:
    Ray EDWARDS and Louise EDWARDS, His Wife v. ARKANSAS POWER & LIGHT COMPANY
    85-189
    700 S.W.2d 52
    Supreme Court of Arkansas
    Opinion delivered December 9, 1985

      Bill W. Bristow; P.A., Steve Bell, and John Norman Harkey, for appellant.

      House, Wallace, Nelson & Jewell, P.A., for appellee.
   George Rose Smith, Justice.

The key question on this appeal is whether the making of an insufficient deposit by the condemnor upon the filing of an eminent domain proceeding gives the landowner a cause of action in tort for the condemnor’s alleged bad faith. We hold that it does not.

This case is a sequel to a condemnation action brought in October, 1978, by Arkansas Power & Light Company against the appellants, owners of land sought to be condemned as part of the site for a generating plant. That case was tried to a jury and resulted in a verdict fixing the value of the land at $2,050 an acre, plus severance damages. The judgment on the verdict, with 10% interest from the date on which the circuit court authorized AP&L to take possession, has been satisfied in full.

In that condemnation action the landowners filed a counterclaim asserting that AP&L acted in bad faith, maliciously, and oppressively in depositing in the registry of the court only $136,000 ($850 an acre for 160 acres) when the company knew from its own appraisers that the landowners were entitled to at least $1,223.33 an acre. It was also alleged that between the filing of the complaint and the filing of the counterclaim AP&L had settled with other defendants owning similar land for $1,650 an acre.

The counterclaim asserted that AP&L’s bad faith in depositing only $850 an acre had damaged the appellants in these ways: (1) They had been compelled to defend the case by employing attorneys for a fee based on a percentage of the ultimate recovery in excess of $850 an acre. (2) The appellants lost certain tax advantages by being delayed for a year or more in reinvesting the proceeds of the condemnation. (3) AP&L, by depositing only half of what was just compensation, had prevented the appellants from investing the withheld amount to bring them a return of more than 10% per annum. The counterclaim sought actual damages of $60,000 and punitive damages of $250,000.

By agreement the issues presented by the counterclaim were not to be tried until after a trial on the issue of just compensation had been completed. After that trial, however, the appellants took a nonsuit on their counterclaim, ostensibly “without prejudice,” and filed substantially the same action in the federal court. The district court dismissed the suit. Edwards v. Ark. Power & Light Co., 519 F. Supp. 484 (E.D. Ark. 1981). On appeal, however, the court of appeals held that the federal courts should abstain from considering the case on its merits “until the plaintiffs have obtained a state court determination of whether the plaintiffs’ bad faith claim states a cause of action cognizable under Arkansas’s constitutional, statutory or common law and, if so, whether it was a compulsory counterclaim to AP&L’s condemnation action.” Edwards v. Ark. Power & Light Co., 683 F.2d 1149, 1157 (8th Cir. 1982).

Before the federal appellate court reached its decision the appellants, to avoid any question of limitations, refiled a complaint in the state court. That is the complaint now before us. It summarizes the earlier proceedings, restates the cause of action asserted in the original counterclaim, adds a conclusory allegation of intentional infliction of mental distress, and seeks an attorney’s fee under 42 U.S.C. § 1988. The relief sought is increased to $250,000 in compensatory damages and $8,140,000 in punitive damages.

AP&L first filed a motion to dismiss for failure to state a cause of action, various reasons being asserted. ARCP Rule 12(b)(6). That motion was denied. In December, 1983, AP&L filed a motion for summary judgment, presumably on the pleadings as no affidavits or other proof was attached. The appellants responded promptly, in January. In March, 1985, AP&L filed an affidavit to support its motion for summary judgment. This affidavit asserts facts supposedly justifying AP&L’s decision to deposit $850 an acre at the outset. We have disregarded the affidavit, because ARCP Rule 56 contemplates that supporting affidavits be filed with the motion for summary judgment, not some 15 months later. If such delays were permitted, the summary judgment procedure might be strung out almost indefinitely.

The trial court granted the motion for summary judgment, finding that for various reasons the complaint fails to state a cause of action. The appeal comes to us as a tort case.

Counsel for the appellants concede frankly that they know of no Arkansas authority to support the cause of action asserted in this case. We are urged to draw an inference favorable to the appellants from a reference to bad faith in an earlier condemnation case, Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W.2d 5 8 (1944). There the landowner alleged that the city, in condemning land for an airport, was attempting to take more land than it needed in order to sell the excess at a profit. The court suggested that such bad faith might give rise to a cause of action for an attorney’s fee, but there is no real resemblance between that fact situation and the present one.

It must be observed at the outset that a utility company’s deposit when a case is filed is not required to be the measure of the landowner’s compensation or an accurate estimate of the value of the land being condemned. Under the pertinent statute the deposit must be in an amount “determined by the Court to.be sufficient to secure compensation to the owner or owners of the property or interest therein sought to be condemned.” Ark. Stat. Ann. § 73-276.15(b) (Repl. 1979). We are not aware that the appellants have ever complained that the inadequacy of AP&L’s deposit caused them to doubt that the payment of their ultimate judgment was not being sufficiently secured. As we have said, the amount of the judgment has been paid in full.

With respect to the appellants’ asserted cause of action under Arkansas law, we agree with Judge Arnold’s remarks with respect to the applicability of federal law, in his concurring opinion on the appellants’ federal appeal: “If the final award includes interest at the market rate from the date of taking, I cannot see what the landowner has lost. . . . A violation of state law, however willful or reprehensible, does not ipso facto amount to a constitutional tort. It is hard for me to see, therefore, what AP&L’s good or bad faith has to do with federal constitutional rights.” 683 F.2d 1159-1160.

The fundamental weakness in the appellants’ argument, as we see it, is the absence of a causal connection between AP&L’s failure to deposit enough money and the damages asserted in the appellants’ complaint.

It is first asserted that AP&L’s bad faith forced the appellants to employ lawyers to defend the case. Why? In making the deposit AP&L alleged, and the trial judge found after an ex parte presentation, that AP&L and the appellants had been unable to agree upon what the landowners should receive for their property. Thus the condemnation suit became unavoidable. If, then, the inadequacy of the deposit compelled the appellants to employ counsel, AP&L could have escaped a charge of bad faith only by making a deposit so large that the landowners would have accepted it without employing counsel to contest the case. In short, under this theory AP&L would be guilty of actionable bad faith unless it disregarded the rights of its ratepayers, relinquished its right to a jury trial, and paid the appellants every cent they asked for. It is obvious that the inadequacy of the deposit was not the compelling reason for the employment of counsel.

It is next asserted that the delay incident to the litigation resulted in the loss of a tax advantage that the appellants would have enjoyed if the deposit had been sufficient to prevent the delay that occurred before the case was ready for trial. Again the loss is one that AP&L could have avoided only by conceding the appellants’ demands. Good or bad faith was not a factor.

The third element of damage claimed by the appellants is the loss of a return from profitable investments they might have made if a greater deposit had been available for them to withdraw, with the court’s permission. Under our law the landowner is entitled, as part of his just compensation, to a proper rate of interest during the time he is deprived both of the use of the land and of the money representing its value. “Since a constitutional right is involved, the interest rate to be allowed may exceed that specified by statute.” Ark. State Highway Comma, v. Vick, 284 Ark. 372, 682 S.W.2d 731 (1985), and cases there cited. Interest at the market rate, however, is part of the just compensation to which the appellants were entitled and therefore should have been demanded before the entry of judgment. The appellants, having accepted 10% interest in satisfaction of the award, cannot now insist that the amount was insufficient.

The circuit court of appeals allowed the appellants to seek a determination of whether the bad faith claim states a cause of action under state law “and, if so [our italics], whether it was a compulsory counterclaim.” Since we find that no cause of action exists, we do not reach the second issue. We affirm the trial court’s ruling for the reasons we have given. We are not approving or disapproving the other points stated in the trial court’s summary judgment and see no reason to explore them. They are not to be treated as binding adjudications.

Affirmed.

Purtle, J., not participating.