text:
    RALSTON PURINA COMPANY d/b/a ARKAVALLEY FARMS v. Billy O. McCOLLUM
    CA 80-365
    611 S.W. 2d 201
    Court of Appeals of Arkansas
    Opinion delivered February 4, 1981

      Brazil & Roberts, for appellant.

      Henry & Graddy, for appellee.
   James R. Cooper, Judge.

This case involves a suit which was originally filed in Chancery Court of Faulkner County, Arkansas on March 8, 1977, seeking an order directing appellant to specifically perform a contract between appellant and appellee. The complaint alleged an oral agreement to purchase silage for the sum of $19.50 per ton for all of the silage produced on 500 acres which was to be leased, by appellee. The complaint alleged that these transactions took place in September of 1976. On or about January 10, 1977, it is alleged that appellant notified appellee that it would not purchase any silage produced by appellee in excess of 6,000 tons and that the price it would pay would be limited to $18.50 per ton. The prayer for relief asked for an order requiring appellant to specifically perform the contract, and in the alternative for damages in the amount of $47,000.00 representing the lease payment due on the 500 acres, interest due to the Central Arkansas Production Credit Association for the money borrowed to perform the contract, loss of profits, punitive damages, plus attorney’s fees and costs.

The appellant demurred and alleged that the complaint failed to state a cause of action in that the alleged agreement was oral, involved over $500.00, and there was no allegation of substantial performance. An amended complaint was filed alleging partial performance. On April 12, 1977, the Chancery Court sustained the demurrer and transferred the cause of action to the Circuit Court of Faulkner County. An amended complaint was filed April 30, 1978, which alleged that the appellee suffered damages because of his detrimental reliance on the oral agreement. He alleged that he had first entered into a lease for 500 acres and later obtained a loan from Central Arkansas Production Credit Association to fund the expenses of growing and harvesting the silage; that in an effort to mitigate damages he planted soybeans in the year 1977 and suffered a loss in excess of $40,000.00. He further alleged that he could have realized a profit of over $84,000.00 had the appellant not breached his contract. The jury returned a verdict in favor of appellee in the amount of $50,000.00. From that verdict and judgment comes this appeal.

The sole issue raised on appeal by appellant is that the trial court erred in not granting a directed verdict moved for by appellant at the close of appellee’s case.

The test as to whether a trial court may direct a verdict without abusing its discretion has been clearly stated by this Court. The evidence and all reasonable inferences deducible therefrom must be viewed in the light most favorable to the party against whom the verdict is directed, and if there is any conflict of evidence or the evidence is not in dispute but is in such a state that fair-minded men might draw a different conclusion therefrom, a jury question is presented. Williams v. Curtis, 256 Ark. 237, 506 S.W. 2d 563 (1974); Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W. 2d 943 (1980).

At the time the motion for a directed verdict was made there had been testimony by appellee that discussions were had between appellee and appellant regarding the silage contract in September of 1976; that appellant agreed that he would rent 500 acres from Mr. Brown; that he would plant and double cut silage on that acreage in 1977; and that he would be paid $19-50 per ton. He testified that he left the meeting with the understanding that he had a 500 acre contract for $19.50 per ton. He testified further that on October 7, 1976, he signed a lease with Mr. Brown requiring rental payments of $47,000.00 for 500 acres and that he made a down payment of $5,000.00. He testified that he advised the manager of appellant’s farm that he had leased the 500 acres within 2 or 3 days after he had signed the lease. He testified that on December 1, 1976, he applied to the Central Arkansas Production Credit Association for a loan for operating money in the amount of $108,000.00 which was approved December 13, 1976. He further testified that in the normal course of dealings with appellant over the previous 6 years he had borrowed money to operate his farming operations shortly after he had reached an oral agreement with the company and that this oral agreement was followed by a written contract at the convenience of the appellants, usually some months later. Mr. Ray Trafford testified that his written contract with appellant was drawn and signed after purchasing equipment for the production of silage. Mr. Bob Williams, a former partner of appellee, testified that the meeting relating to the growing of silage for 1977, between appellee and appellant’s manager did take place and that an agreement was reached as to the farming of the 500 acres to be leased from Mr. Brown.

Ark. Stat. Ann. § 85-2-201 (Add. 1961) states in pertinent part:

.... a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought. . . .

Ark. Stat. Ann. § 85-2-105 (Add. 1961) defines goods as including growing crops.

Thus the statute of frauds applies in this case unless an exception would prevent its application. Appellee urges that appellant is estopped from asserting the statute of frauds.

The doctrine of promissory estoppel is applicable to transactions covered by the Uniform Commercial Code. The Code states that the principles of law and equity, including estoppel, supplement the U.C.C. unless displaced by a particular provision (Ark. Stat. Ann. § 85-1-103 (Add. 1961)). Thus the doctrine of promissory estoppel may be asserted by one party to an oral contract for the sale of goods, to prevent the other party from asserting the defense of the statute of frauds.

A promise is binding if an injustice can be avoided only by enforcing the promise, if the promissor should reasonably expect to induce action or forbearance of a definite and substantial character by the promissee, and if that action is induced. Reynolds v. Texarkana Constr. Co., 237 Ark. 583, 374 S.W. 2d 818 (1964); Sanders v. Arkansas-Missouri Power Co., 267 Ark. 1009, 593 S.W. 2d 56 (Ark. App. 1980).

In this case, we hold that the trial court correctly denied the motion for directed verdict because appellant was es-topped to assert the statute of fraud. Appellee, in his case in chief showed reliance on the oral agreement reached between himself and Deavers, manager of appellant’s farm. The reliance was proved by his lease of the 500 acres from Mr. Brown, the payment of $5,000.00 down on rent, and his loan from Central Arkansas Production Credit. The substance of the agreement with Deavers was substantiated by Williams. Further, the past dealings between Williams, appellee, and appellant were consistent with the oral agreemet alleged hree, and appellee was entitled to rely on his past dealings with appellant.

Based on the evidence produced during appellee’s case in chief, viewing all the evidence and inferences in the light most favorable to appellee, and considering any conflicts in the evidence, we find that fair-minded men might draw different conclusions from the evidence produced at that point, and that therefore the case was properly submitted to the jury.

Affirmed.

Corbin, J., not participating.


source: Caselaw Access Project

author: Tom Glaze, Judge.

license: Public Domain

text:
    Roger GAGNE, Anne GAGNE, John GLOSENGER and Rick IAMES v. Joseph R. HARTMEIER and Irene HARTMEIER
    CA 80-354
    611 S.W. 2d 194
    Court of Appeals of Arkansas
    Opinion delivered February 4, 1981

      Willard Crane Smith, Jr., for appellants.

      Conrad Ockenfels Pugh, for appellees.
   Tom Glaze, Judge.

This case involves an action for unlawful detainer. The appellants appeal from an order issued by the Sebastian County Circuit Court wherein the appellees were found entitled to a writ of possession of property owned but which had been leased by the appellees.

On August 27, 1976, the appellees, the Hartmeiers, leased property to appellant, Gagne, and his wife. The term of the lease was for ten years and the monthly rental was $1,750 plus a percentage of the gross sales of gasoline. The provision of the lease which is an issue is paragraph twelve which provides:

LESSEES (Gagne) shall not sublease all or any part of the property herein leased without the expressed written consent of LESSORS (the Hartmeiers).

On February 4, 1980, Gagne (who was divorced at the time) entered into a written agreement designed “Contract of Sale of Personal Property and Business” with the appellants, Glosenger and lames. Gagne entered into this agreement without obtaining the written or oral consent of the Hartmeiers, but the agreement specifically incorporated the original Hartmeier lease and made the sale subject to the lease provisions. Additionally, the terms of the transfer or sale agreement provided that the transaction was not a subletting. Glosenger and lames then took possession of the leased property and proceeded to operate the business purchased from Gagne.

The Hartmeiers brought suit for possession of the leased property, contending that the agreement between Gagne, Glosenger, and lames was a sublease which was entered into contrary to the terms in paragraph twelve of the original lease. Gagne, Glosenger and lames argued that the contract they entered into was an assignment rather than a sublease and the written consent of the Hartmeiers was unnecessary.

As previously mentioned, the trial judge ordered the Hartmeiers were entitled to a writ of possession, and the bases for his decision were:

1. One legal distinction between a sublease and assignment is that when a lessee sublets his interest, he transfers a lesser interest than if he assigns it. Therefore, if the contract prohibited the transfer of a lesser interest, then it would also prohibit the transfer of the greater interest.
2. When Gagne sold his business to Glosenger and lames, he also became a partner and had some control over the business which would be more in line with a sublease than an assignment.
3. Assignment is usually in a different form than the contract of sale between Gagne, Glosenger and lames, and therefore, there was some doubt whether the document as drawn was actually an assignment.

After a review of the lower court’s findings and decision the first issue to be resolved is whether the court is correct in its finding that the Gagne transfer document is a sublease rather than an assignment. If correct, then the document would be a subletting under the original lease and, therefore, prohibited by its terms. The trial judge, however, in his first reason above indicated that the Gagne sale document could be an assignment, but, if so, he concluded that the document or assignment would still be prohibited by the original lease, i.e., a covenant against subleasing also prohibits an assignment. Thus, if we find that the Gagne sale document is an assignment, we must then decide if such an assignment breaches the sublease provision in the original lease.

We first consider whether the Gagne sale agreement was a sublease or assignment. To do so, it is important to understand the distinction between an assignment and a sublease and to know the legal consequences which may ensue from each. Professor Moynihan, in his Introduction to the Law of Property (1962) at page 76 discusses the traditional and common law distinction of these two terms in a property context as follows:

. . . An assignment is a transfer by the lessee of his estate for the entire balance of the unexpired residue of the term. There is no reversion left in the lessee. A sublease is a transfer of the leasehold for a shorter period than the unexpired residue of the term. Even if the difference in time between the lessee’s unexpired term and the transferee’s term is as short as one day the transfer is classified as a sublease . . . Where the transfer is an assignment the assignee becomes liable on those covenants in the lease made by the lessee which run with the land. The basis of this liability is the privity of estate arising from the landlord-tenant relation between the lessor and the assignee. The lessee continues to be liable on the covenants on the basis of privity of contract but as between lessee and assignee the latter is primarily liable. Thus, the assignee is liable to the landlord for the rent reserved in the main lease and this liability continues for the balance of the term unless and until the assignee makes a further assignment to some one else. But if the transfer by the lessee is a sublease there is neither privity of estate nor of contract between the main lessor and the sublessee. The lessor, therefore, has no direct action against the sublessee on the covenants in the lease. [Citations omitted.]

Most jurisdictions follow the common law distinction in determining whether a document or instrument is an assignment or sublease. Put simply, if the instrument purports to transfer the lessee’s estate for the entire remainder of the term, it is an assignment, regardless of its form or the parties’ intention. Conversely, if the instrument purports to transfer the lessee’s estate for less than the entire term, it is a sublease, again regardless of its form of the parties’ intention. Thus, the intention of the parties to the transaction has nothing to do when applying the common law rule. The sole question is whether the lessee retained a reversionary estate. If so, the instrument would be designed a sublease.

In the case of Jaber v. Miller, 219 Ark. 59, 239 S.W. 2d 760 (1951), Justice George Rose Smith critically studied and analyzed the common law concept in determining whether an instrument is a sublease or assignment, and, in rejecting its formalistic test, stated:

The English distinction between an assignment and a sublease is not a rule of property in the sense that titles or property rights depend upon its continued existence. A lawyer trained in common law technicalities can prepare either instrument without fear that it will be construed to be the other. But for the less skilled lawyer or for the layman the common law rule is simply a trap that leads to hardship and injustice by refusing to permit the parties to accomplish the result they seek.
For these reaons we adopt as the rule in this State the principle that the intention of the parties is to govern in determining whether an instrument is an assignment or a sublease. If, for example, a tenant has leased an apartment for a year and is compelled to move to another city, we know of no reason why he should not be able to sublease it for a higher rent without needlessly retaining a reversion for the last day of the term. The duration of the primary term, as compared to the length of the sublease, may in some instances be a factor in arriving at the parties’ intention, but we do not think it should be the sole consideration. [Emphasis supplied]

In accordance with the legal principle enunciated in Jaber, we must determine what was intended by Gagne, Glosenger and lames when they entered into their Contract of Sale or transfer document. First, and most obviously, the instrument was written to convey Gagne’s interest in his business to Glosenger and lames for a purchase price of $75,-000.00. The terms of the sale comprise most of the agreement except for paragraph nine which relates to the original Hartmeier lease and provides:

9. The parties understand that this Contract of Sale is subject to a Lease executed by and between the Seller and Joseph R. Hartmeier and Irene Hartmeier as Lessors, said Lease having been executed on or about the 27th day of August, 1976.
A copy of said Lease is attached hereunto, made a part hereof and entitled Exhibit “A.” It is understood by the Buyer that the Lease cannot be “sublet” without the written consent of the Lessors. This Agreement is not to be in any way considered a sublease of the demised premises herein, but rather a Contract of Sale for the business, inventory, fixtures and equpment contained in said business. It is understood that the Seiler retains no reversionary interest in said property but for the failure of the buyer to pay the price as herein agreed upon and set forth.

From a review of the language contained in paragraph nine above, it is clear Gagne, Glosenger and lames fully understood that Gagne could not sublet his Hartmeier leasehold interest. Although the contract or instrument in question did not reflect an assignment, the language in paragraph nine did incorporate the Hartmeier lease in toto and made the contract of sale subject to the Hartmeier lease. Glosenger testified that he knew Gagne could not sublease his interest, that he (Glosenger) recognized the transfer of the building or property as an assignment and that he and lames were directly responsible under the lease to Hartmeier. Since the sale contract incorporated the Hartmeier lease as a part of the agreement, Glosenger and lames became obligated to the Hartmeiers under the terms of the lease for its entire term.

The trial judge voiced some concern, because the instrument, including paragraph nine therein, failed to specifically designate that the Hartmeier lease was assigned and an assignment is generally in a different form. Thompson in his treatises on Real Property addresses this concern and provides a guide:

Any language which shows the intention of the parties to transfer the property one to the other is sufficient, the form of the instrument being immaterial. If it has the legal effect to pass to another the lessee’s interest in the whole or in any part of the demised premises for his entire term, or the remainder of his term, it is an assignment. [3A Thompson on Real Property, § 1210, at page 53.] [Emphasis supplied.]

The appellees argue Gagne did not part with his entire interest, and they relate terms in the contract of sale instrument which protect him, e.g., a right to draw funds from Glosenger’s and lames’ business account, a hold harmless provision, a right of re-entry for non-payment of monies due under the agreement, a right to prohibit waste, liens and the assignment or leasing of the property. Of course, none of these rights retained by Gagne rise to the dignity of a reversionary estate. Although courts in some jurisdictions have recognized the lessee’s reservation a right of re-entry to be a reversionary estate. Although courts in some jurisdictions have recognized the lessee’s reservation of a right of re-entry to be a reversionary estate, Arkansas has rejected this rule when the instrument is intended by the parties to be an assignment. Jaber v. Miller, supra. The rights Gagne retained incidental to the sale of his business do not negate the parties’ clear expression contained in the instrument that the sale contract was subject to the full Hartmeier lease agreement. We necessarily must conclude the instrument is an assignment and not a sublease.

Since we hold that the Gagne transfer or sale document is an assignment, we must then decide whether a restrictive covenant to sublease also prohibits an assignment. We find no Arkansas case on this legal issue, and none is argued in counsels’ briefs. Cases do exist in other jurisdictions, however, and the prevailing rule and the better reasoned law is that a restrictive covenant contained in a lease against subletting is not violated by an assignment of the lease. Cities Service Oil Company v. Taylor, 242 Ky. 157, 455 S.W. 2d 1039 (1932) and De Baca v. Fidel, 61 N.M. 181, 297 P.2d 322 (1952); See also other cases annotated in 7 A.L.R. 249, 79 A.L.R. 1379 and 51C C.J.S. Landlord & Tenant, § 33, at page 84 note 64. This rule of law is bottomed on another but better known legal principle stated as follows:

Covenants against assignment and underletting, being a restraint against alienation, are not favorably regarded by the courts, and are liberally construed in favor of the lessee, so as to prevent the restriction from extending any further than is necessary. [3 Thompson on Real Property, § 1429 (1940).]

In Cities Service Oil Company v. Taylor, supra, the court, in holding a sublease restriction did not prevent an assignment, refused to extend a sublease covenant beyond the literal requirements of a reasonable interpretation of the terms employed. Applying these principles of law to the case at bar, the Hartmeiers and Gagne could have easily inserted words in the lease agreement to have prohbited both subletting and assignments. They failed to do so and given the clear distinction and legal significance between these terms, we are in no position to re-write the lease to prohibit an assignment. Thus, if the trial court determined that the Gagne sale instrument was an assignment, its further decision that such an assignment would violate the sublease provision is in error.

For the above reasons, we reverse the lower court’s order.

Reversed.

Cioninger, J., dissents.

Corbin, J., not participating.


text:
    Olen Jerry WEAVER v. STATE of Arkansas
    CA CR 80-73
    612 S.W. 2d 324
    Court of Appeals of Arkansas
    Opinion delivered February 4, 1981
    Rehearing denied March 11, 1981

      Robert S. Blatt, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dotvden, Asst. Atty. Gen., for appellee.
   Tom Glaze, Judge.

The appellant, Olen Weaver, was convicted of first degree sexual abuse and the jury imposed a penalty of four years in the Arkansas Department of Corrections and a $2,500 fine. Weaver raises three points for reversal.

First, it is argued by Weaver that the trial court erred in overruling his motion for a mistrial when, during voir dire examination of a juror, the prosecutor stated:

This case involves, basically it boils down to the testimony of a little girl who was eight years old at the time of the offense, and of course, this adult who is sitting here is the Defendant. The fact that the girl, this little girl —

After the trial court overruled the motion for mistrial, the court gave a cautionary instruction to the jury to the effect that the prosecuting attorney would rephrase the last question, and that they should disregard the content of the last question. Weaver contends the prosecuting attorney’s comment violated his right not to testify under the Fifth Amendment to the United States Constitution, and because of the comment, he was compelled to testify. We disagree with this contention.

The law is settled that comment on the failure of a defendant to testify in a criminal case is a violation of the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution which is applicable to the States by the Fourteenth Amendment. Griffin v. California, 380 U.S. 609,85 S. Ct. 1229, 14 L. Ed. 2d 106 (1969). It is also clear that seeming violations may be harmless error where the State can show that it did not contribute to the verdict or that there was no reasonable possibility that the comment might have contributed to the verdict. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d (1967). In the Chapman case, the Court held that to determine whether a comment contributed to the verdict, the reviewing court must examine: (1) the strength of the evidence, and (2) the nature and extent of the comment.

In applying these criteria to the case at bar, we conclude that the evidence before the jury was substantial even if we were to limit our review to the testimony of the victim, Donna. Our Supreme Court has held that no corroboration of the victim’s testimony is necessary in a case involving an alleged sex offense. Kitchen v. State, 271 Ark. 1, 607 S.W. 2d 345 (1980).

Donna related to the jury how Weaver took her pants and shorts off, that he put his hand on her vagina and that he rubbed her from side to side. In addition to Donna’s testimony, we also examine the testimony given by her mother, who substantiated Donna’s version of what Weaver had done soon after the encounter occurred. Moreover, another witness called by the State testified that Weaver was in Donna’s house on the day of the crime.

The second criteria required by Chapman is the most important when we review the comment made on voir dire. After examining the statement made by the prosecuting attorney, it is difficult to understand how it prejudiced Weaver or, indeed, caused Weaver to feel he was in any way compelled to testify. To consider the prosecutor’s remarks in their proper context, we must review the questions, answers and comments before and after the challenged comment:

[BY THE DEPUTY PROSECUTING ATTORNEY:]
Q. I see from your jury questionaire that you have four children.
A. Right.
Q. How old are they?
A. I have a 19-year old, 16-year old, 10-year old — I’m sorry, I forgot the oldest. I have one that is 20.
Q. This case involves, basically it boils down to the testimony of a little girl who was eight years old at the time of the offense, and of course, this adult who is sitting here is the Defendant. The fact that the girl, this little girl —
# * #
THE COURT: The Deputy Prosecuting Attorney will rephrase the last question and you will disregard the content of the question that he just asked.
A. Yes, sir.
Q. The State intends to call as a witness an eight year old girl who was the victim of this offense. The fact that she is eight years old in and of itself, would that cause you to disbelive anything that she would have to say; just the sole basis of her age?
A. I don’t think so.
A. Of course, you would have to hear all the evidence and hear all — I understand you would have to hear everything she had to say and everything all the other witnesses that might testify would have to say, but just because of her age you would not hold that against her and feel she was not worthy of belief?
A. (Nods head in negative.)
[Emphasis supplied.]

From the colloquy above, one clearly discerns the sole purpose of the prosecuting attorney’s remarks was to elicit the juror’s expressed intentions on whether the juror would believe an eight year old girl’s testimony. There was no reference by the prosecutor to Weaver’s testimony or possible testimony. Rather, the prosecutor merely identified Weaver to the juror as the adult Defendant. The prosecutor then immediately proceeded to inquire whether the fact the little girl is eight years old would cause the juror not to believe what she would have to say. If we were to conclude (as Weaver suggests) that the prosecutor’s statement was a comment on Weaver’s right to remain silent, we would be constrained not only to take the prosecutor’s statement out of context, but we also would be forced to give the words used a meaning different than that commonly understood and intended. After a review of the prosecuting attorney’s voir dire of all jurors, we are convinced beyond a reasonable doubt that the prosecutor’s comment was harmless.

The next argument of Weaver’s is that the trial court committed error when it allowed the mother to testify to information that she gained from Donna shortly after the offense occurred. This issue is controlled by our Supreme Court’s decision in Burris v. State, 265 Ark. 604, 580 S.W. 2d 204 (1979). In Burris, the prosecutrix testified Burris forced her into her apartment and raped her. She managed to escape and ran to a neighbor’s house and called the police. A police officer answered the call and later testified at trial that the prosecutrix was “very hysterical” and it took a few minutes to calm her down. The officer testified further that she then said that she had been raped by Burris. The prosecutrix also called her brother within fifteen or twenty minutes after the occurrence. The brother also testified at the trial that she sounded “really hysterical,” and he stated that she finally said that she had been raped by Burris. The Court in the Burris case held that the prosecutrix’s experience had been a “startling event,” that she was still under the stress of excitement when she made the statements to the officer and her brother and these statements were admissible as an excited utterance pursuant to Rule 803(2) of the Uniform Rules of Evidence.

The evidence in the record before us is comparable to, if not stronger than, that presented in Burris. Here, we have an eight year old girl who related that Weaver had hit her, undressed her, rubbed her vagina and took out his “private place.” He also told her to lie to her mother when she returned home. After Weaver let her out of his car, Donna went home, told her mother the lie that Weaver told her to tell, and when she did, Donna broke down crying and she then told the truth. As was true in Burris, we consider and view the above facts in light of Rule 803(2) of the Uniform Rules of Evidence, which provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

We have no problem in deciding that the mother’s testimony which was based on her conversation with Donna is admissible as an excited utterance under Rule 803(2) above. Without question, Donna had undergone a startling event and continued in an extremely emotional state of mind when she discussed the event with her mother.

The third and last issue argued by Weaver is that the trial court erred in instructing the jury that he could be guilty of rape. The evidence in the record was in conflict and reflects that Donna denied that Weaver penetrated her vagina with his finger. However, Donna’s mother testified at the trial that Donna told her that he had penetrated her. The court instructed the jury that Weaver could be guilty of rape, sexual abuse in the first degree, sexual solicitation of a child, or, of course, he could be found not guilty. The jury found him guilty of first degree sexual abuse. Weaver contends the evidence did not warrant an instruction on rape, and that the court in doing so prejudiced him by enhancing his punishment on the lesser included offense of sexual abuse in the first degree. In advancing this contention, Weaver cites no authority and virtually no argument except that “it is common knowledge that prosecutors often overcharge and file a higher type offense when they know the jury will find a lesser included offense.” We adopt the position taken by our Supreme Court in Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977), wherein it held:

Assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent without further research that they are well taken.

We feel the rule enunciated in Dixon is designed to dispose of the type assertion or contention as we have before us now. In view of our decision, it is unnecessary to consider the State’s other arguments that Weaver failed to object to the rape instruction in the trial court proceeding and that any such objection was rendered moot when the jury convicted him on the lesser charge of sexual abuse.

For the foregoing reasons, we affirm the judgment.

Affirmed.

Corbin and Cloninger, JJ., not participating.


author: Richard B. Adkisson, Chief Justice.

text:
    Orval BURKHART v. STATE of Arkansas
    CR 81-9
    611 S.W. 2d 500
    Supreme Court of Arkansas
    Opinion delivered February 9, 1981

      John W. Walker, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

This appeal is from a judgment denying relief under Rule 37, Ark. Rules of Crim. Proc., on the ground that the petitioner was not in custody at the time the petition was filed.

In a jury trial on April 26, 1978, appellant, Orval Burkhart, was convicted of first degree assault and his punishment was fixed at $375.00, from which there was no appeal.

The “Scope of the Remedy” for proceedings under Rule 37 is confined to “a prisoner, in custody under sentence of a circuit court ...” The petitioner in this case was not in custody at the time of filing his petition and, therefore, was entitled to no relief. See Hartsell v. State, 254 Ark. 687, 495 S.W. 2d 523 (1973).

Rule 37 is not a substitute for appeal. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973).

Affirmed.


author: George Rose Smith, Justice.

text:
    Theodis LOCKETT v. STATE of Arkansas
    CR 80-187
    611 S.W. 2d 500
    Supreme Court of Arkansas
    Opinion delivered February 9, 1981

      E. Alvin Schay, State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M.Jochums, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In June, 1979, the appellant Lockett, represented by counsel, pleaded guilty to a charge of robbery. The court, without imposing sentence, placed him on probation for four years, one of the conditions being that he obey all federal and state laws. Less than a year later the State sought revocation of the probation on the ground that Lockett had again committed robbery, taking more than $2,500 while armed with a deadly weapon. After a hearing at which Lockett was again represented by counsel the court revoked Lockett’s probation and imposed a 15-year sentence for the original offense. In appealing from the order of revocation Lockett argues he was denied the limited due process that the Supreme Court holds to be essential in such a proceeding. Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972).

At the revocation hearing Officer Bobby Brown testified that Lockett, after having been warned of his rights, signed a confession describing how he had lain in wait for the robbery victim, had struck him from behind with an iron bar, and had fled with the money. The officer testified that Lockett identified his accomplices and later took the police to a ditch where the crowbar was and gave information that led to the recovery of money and checks. Lockett testified that the confession was not true, that he signed it after having been slapped around by the officers, that he found the money after having seen an unidentified man drop it in a ditch, and that just before his arrest he had decided to turn the money “back in.”

Lockett’s arguments for reversal have no substance. The due process requirements specified in Morrissey have since been embodied in our Criminal Code, including the court’s holding that relevant evidence may be introduced at a revocation hearing regardless of its admissibility at a criminal trial. Ark. Stat. Ann. § 41-1209 (Repl. 1977). Here counsel argued below, after both sides had rested, that the State should have called as witnesses all persons who were present when Lockett confessed. We have recognized such a requirement at an in-chamber Denno hearing, but our reasoning centered on the State’s burden of proving voluntariness, not on due process. Smith v. State, 254 Ark. 538, 494 S.W. 2d 489 (1973). Neither the Supreme Court decisions nor the Criminal Code requires a completely comprehensive hearing as a minimum basis for the revocation of probation. Fundamental fairness, with an opportunity to be heard, is all that the probationer is entitled to demand.

There was no denial of Lockett’s right to confront the witnesses against him. That right applies only to witnesses who testify; it does not compel the State to produce every possible witness. Hoover v. State, 262 Ark. 856, 562 S.W. 2d 55 (1978). Finally, had Lockett requested a written statement of the court’s basis for revoking probation, as Section 41-1209 (2) contemplates, it could have been readily supplied. The failure to object to the omission precludes consideration of the point on appeal. Wickes v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980); Hawkins v. State, 270 Ark. 1016, 607 S.W. 2d 400 (Ark. App., 1980).

Affirmed.


author: Frank Holt, Justice. John I. Purtle,

text:
    W. J. “Bill” McCUEN, County Judge et al v. Matthew HARRIS, Tax Collector et al
    80-163
    611 S.W. 2d 503
    Supreme Court of Arkansas
    Opinion delivered February 9, 1981

      Walter G. Wright, Pros. Atty., 18th Judicial Dist., by: Paul R. Bosson, Deputy Pros. Atty., for appellants.

      McCraw, Schneider, Love & Rush, by: David M. Love, for appellees.
   Frank Holt, Justice.

A series of ordinances were enacted by the Garland County Quorum Court pursuant to Act 742 of 1977, the Arkansas County Government Code, as authorized by Amendment 55 of our Constitution. Conflicts arose as to the extent of the authority of the quorum court, by these ordinances, to control official duties of the county officers and their personnel. This culminated in this lawsuit in which the appellees, six Garland County elected officials, filed a complaint against the appellants, the county judge and the quorum court, challenging the validity of various ordinances. The trial court found that several of the questioned ordinances or sections were invalid and that a lesser number were valid. The court also found that the Board of Election Commissioners had properly incurred certain legal expense and judgment was awarded against the county for the fees sought. The court also found that the prosecuting attorney was required to represent the appellants. By direct and cross-appeal, the parties question, inter alia, the correctness of the court’s validating and invalidating the various ordinances.

At the outset, we observe that the only issues, which are based on a factual dispute, consist of the court’s finding that the county was obligated to pay an attorney fee incurred by the Election Commissioners, and the court’s denial of the prosecuting attorney’s motion to be relieved as counsel in this litigation between these county officials. On the other issues, the validity of the ordinances, it was stipulated there were no controverted facts and that the only issues involved were questions of law. The various ordinances and laws were merely placed before the trial court with the request that he resolve their validity. On appeal, for example, we are urged to furnish a definition for “employees and deputies”, which wold remove many of the existing difficulties and, further, it is necessary to have a definitive statement as to the extent of the quorum court’s authority with respect to the employees and deputies of the various elected officials.

We are not unmindful of the intense desire and need, as urged in oral argument, for a resolution of these issues. In effect, however, we are asked to decide an academic question on issues where no pertinent facts were presented to the trial court. Since we do not issue advisory opinions, we must decline to do so here. McDonald v. Bowen, 250 Ark. 1049, 468 S.W. 2d 761 (1971); Hogan v. Bright, 214 Ark. 691, 218 S.W. 2d 80 (1949); and 16 C.J.S. Constitutional Law § 150. The requested opinion, being only in the nature of advice, does not have the force, effect and binding nature of a judicial decision which resolves an actual specific controversy between parties.

We do find merit, however, in the prosecuting attorney’s contention that he should have been relieved as counsel in this controversy between these county officials. The prosecutor urged the court that he should be relieved of his duties on the grounds of conflict of interest. Appellants responded there were no objections to being represented by the prosecuting attorney. It appeared there was no conflict as to confidential matters. The prosecuting attorney acknowledges that Act 742 of 1977 (Ark. Star. Ann. § 17-4014 (2) [Repl. 1980]) requires him to serve as legal counsel to the quorum court. However, he argues here that he is also called upon, in his capacity from day to day, to advise the various county officials. Also, during this litigation, he might be required to communicate directly with the adversary parties, the appellee county officials. Further, disciplinary Rules 5-101, 5-105, and 5-107, Code of Professional Responsibility, and Canon 9 of the Code require that he be relieved as the attorney in this matter to avoid the appearance of impropriety. Even though there was full disclosure of possible adverse interests and appellants had no objection to his representing them, we are of the view and hold that a prosecuting attorney is placed in an untenable position whenever, as here, he is required to represent county officials who have competing interests with respect to other county officials. It could place him in the position, as argued, to have to choose between them or accept the one who first requests his services.

However, we agree with the trial court in awarding $560 in attorney’s fees incurred by the County Board of Election Commissioners. It appears that voting machines were stored in a county owned building and moisture was causing them to rust and deteriorate. An attorney was employed by the commission to force the correction of the problem. The county judge denied the claim and the commission appealed to the trial court, which allowed the claim. Appellants argue that the commission was under a duty to inquire about the status of the proposed repairs by the county judge before filing the lawsuit, and, furthermore, county officials may not indiscriminately hire an attorney and waste county funds. The commission is responsible for the care and custody of election machines. Ark. Stat. Ann. § 3-1207 (Repl. 1976). It is undisputed that the moisture problem existed and needed cor-reefing. The amount of the award is not questioned. Based upon the facts in the record, we cannot say the court’s ruling on this controverted claim is clearly against the preponderance of the evidence.

Affirmed in part, reversed in part and remanded.

Purtle, J., concurs.

John I. Purtle,

concurring in part, dissenting in part. I concur in the result as to the attorney’s fee and the granting of the prosecuting attorney’s request to be relieved. However, I would decide the other matters presented rather than send them back for a stipulation of disputed facts. After all, we know what the dispute is about, and it will be back up here as soon as the facts are stipulated and the court rules again on the disputed items.


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    Larry CLARK v. STATE of Arkansas
    CR 80-234
    611 S.W. 2d 502
    Supreme Court of Arkansas
    Opinion delivered February 9, 1981

      James A. Johnson, Jr., for appellant.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Based upon a negotiated plea, appellant pled guilty to eight counts of theft by receiving. Ark. Stat. Ann. § 43-2206 (Repl. 1977). The court sentenced him to ten years on each charge with the sentences to run concurrently and ordered that he serve one-third of his sentence before becoming eligible for parole. However, the sentences in four of the eight charges were suspended. This appeal results from denial of appellant’s Rule 37 petition, after an evidentiary hearing, challenging the voluntariness of his negotiated plea.

Appellant alleged in his petition he had discovered after being incarcerated that, due to the provisions of Ark. Stat. Ann. § 43-2829 (B) (3) (Repl. 1977), he would not be eligible for parole until he served one-half of his sentence, since he had a prior conviction. He further alleged that the trial judge failed to advise him he might be subject to additional or different punishment, as required by Rules of Crim. Pro., Rule 24.4 (d), because of his status as a prior offender. He, therefore, requested his concurrent sentences be modified and reduced so that the time of actual incarceration equals that imposed by the trial judge.

At sentencing the trial court questioned appellant as to the voluntariness of his plea. Appellant stated he understood the charges and the punishment; he was satisfied with the services of his attorney; he knew that he was entitled to a jury trial; his plea of guilty was voluntary because he was in fact guilty; he advised the court of a prior conviction in another state; and, after the court imposed sentence, appellant stated he understood the sentence and had no questions concerning it. As indicated, the court told appellant he would be required to serve one-third of the ten year sentence before becoming eligible to apply for parole.

At the evidentiary hearing on the petition for postconviction relief, the court, in denying the petition, found that the record indicated appellant’s plea was entered voluntarily and under proper constitutional safeguards after adequate advice of counsel. We agree. The attorney, a member of the Public Defender’s office who represented appellant during his negotiated plea, testified he advised appellant he might have to serve one-half of his sentence before parole eligibility if the Department of Correction found out about his prior felony conviction. He also advised appellant the Department of Correction was not under the control of the court, and even if the trial judge did not apply this provision, there was still the possibility the Department of Correction might treat him as a second offender. Another member of the Public Defender’s office, who was present when appellant was so advised, testified to the same effect.

In Sims v. State, 271 Ark. 142, 607 S.W. 2d 393 (1980), we held that a “substantial, though not technical compliance” with Ride 24.4 is sufficient. “The critical question ... is whether the plea was voluntary.” There we quoted Irons v. State, 267 Ark. 469, 591 S.W. 2d 650 (1980), that even a silent record does not require automatic reversal if it be proved at a postconviction evidentiary hearing that the plea was voluntarily and intelligently made. Furthermore, in Houff v. State, 268 Ark. 19, 593 S.W. 2d 39 (1980), a situation somewhat similar to the present one, we observed that the appellant’s remedy was not in a Rule 37 proceeding but in a proceeding against the Department of Correction, noting the defendant there had received what he bargained for.

There is ample evidence that appellant’s plea was voluntary and with the knowledge that the provisions of § 43-2829 (B) (3), supra, might eventually be applied to him by the Department of Correction. In the circumstances we find no error.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Once again I must respectfully dissent from the majority opinion, and my reasons are essentially those set out in my dissent in Houff v. State, 268 Ark. 19, 593 S.W. 2d 39 (1980). I cannot understand why an accused who pleads guilty and is told by the court, as in the present case, that he will have to serve one third of his sentence before becoming eligible for parole should be held liable to serve one half of his sentence before becoming eligible. If an accused is not entitled to rely upon the word of the sentencing judge, then he should not be blamed for not relying upon the word of any other official.

The Rules of Crim. Pro., Rule 24.4, requires that the court must inform a defendant of the minimum mandatory jail sentence and that additional punishment is authorized in the event the accused has a previous conviction. This was not done in the present case. Obviously, the court was not of the opinion the appellant would have to serve more than one third of his time or the appellant would have been so advised. It is logical to assume that the court would have reduced the term of the sentence had it realized the appellant would have to serve one half rather than one third of the sentence. In my opinion, this was a critical error in sentencing and is of such magnitude that it should be corrected upon application of the appellant. Therefore, I would send the case back for resentencing.


author: Darrell Hickman, Justice.

text:
    Inell JONES et ux v. Lester COOK et ux
    80-257
    611 S.W. 2d 506
    Supreme Court of Arkansas
    Opinion delivered February 9, 1981

      William G. Wright and Donald P. Chaney, Jr., for appellants.

      Shaw, Shaw & Tucker, for appellees.
   Darrell Hickman, Justice.

The question to us is the enforceability of a restrictive covenant in a deed which provides that no mobile homes may be placed on the property. Lester Cook, the appellee, placed a mobile home on his tract of land knowing that his deed contained a restriction against mobile homes. The developer who sold the tract to Cook sued to have the mobile home removed. The chancellor held that because the developer had in one instance granted a tract owner an exception to another covenant, the restriction against mobile homes could not be enforced against Cook. We find the chancellor wrong and reverse the decree.

The appellants, Inell Jones and his wife, bought a six hundred acre tract of land in Polk County to develop into residential sites. The tract was divided by a county road. The land south of the road was to be used strictly for residences; the area north of the road was to be unrestricted. Before this case came to trial fourteen tracts had been sold. The development scheme, according to the evidence, was being carried out by restrictions in each deed. The Joneses had filed no plat with the county recorder as provided for in Ark. Stat. Ann. § 50-427. The test for a general plan was stated in Sedberry v. Parsons, 232 N.C. 707, 62 S.E. 2d 88 (1950). There the court said:

The primary test of the existence of a general plan for the development or improvement of a tract of land divided into a number of lots is whether substantially common restrictions apply to all lots of like character or similarly situated.

It is one of two methods approved in Arkansas. Moore v. Adams, 200 Ark. 810, 141 S.W. 2d 46 (1940).

With one exception all of the deeds in the development contained this restriction: No mobile homes and/or commercial buildings shall be placed on the property. A deed to Agnes Lott varied the restrictive clause by reading: “That no mobile homes or commercial buildings are to be on said land except for a tomato house.” This exception related to the restriction on commercial buildings, but not to mobile homes.

At trial, Cook did not defend on the basis of the exception granted to Agnes Lott, but simply stated that he had no notice of the restrictions in his own deed and had expended over $2,000 on the lot before he learned of the restrictions. In addition he contended that his was not a true mobile home and that the developer had not filed a plat as required by Ark. Stat. Ann. § 50-427.

The chancellor found that the developer did have a general plan for development but held that because the general plan was violated by the deed to Lott the restriction could not be enforced against Cook, citing Moore v. Adams, supra, as authority. That case is easily distinguished. The subdivision in Moore was found to have “an entire absence of any general plan in the restrictions . . .” of the subdivision. The court noted that some deeds in Moore had no restrictions, others had restrictions allowing only “residences,” and still others had limitations on cost of “dwellings.” Moore v. Adams, supra, actually supports the appellants’ position. It points out that the breach of the convenant by the developer not only must be substantial but also must be a breach of the same restriction. In West v. Anthony, 259 Ark. 474, 533 S.W. 2d 518 (1976), we upheld the enforcement of a restrictive covenant where an unplatted subdivision was involved even though some of the deeds contained no restrictions at all. In Leffingwell v. Glendenning, 218 Ark. 767, 238 S.W. 2d 942 (1951), we upheld a restriction that forced a buyer to move a wall.

Our reasons for finding no substantial breach are supported by the testimony. Jones testified that Agnes Lott bought two tracts, one south of the road in the restricted area and one north of the road in an unrestricted area. Testimony indicated that it was never intended that the exception be granted for a “tomato house” south of the road. While Agnes Lott did not testify, it was conceded that her lots were at the “end of the road” about a fourth of a mile from Cook’s tract. In Brigham v. Mulock Co., 74 N.J. Eq. 287, 70 Atl. 185 (1908), the court noted that: “[T]he owner of a single lot may have no concern whatever in a violation of the covenants on a part of the tract distant from his lot.”

The fact that other violations have occurred does not always constitute acquiescence or waiver of the restrictions. This was shown in Titus v. Kopacz, 359 Mich. 671, 103 N.W. 2d 344 (1960), where the court found that:

In respect to violations in the subdivision, the plaintiffs showed by convincing testimony that there are 14 violations of building restrictions on the 163 one-hundred foot lots in the subdivision with but one of the violations on Beverly boulevard where the individual plaintiffs reside. This the court finds to be a fact. The court further finds that such a proportionately small number of violations is not subversive of the original plan of development in relation to the set back area and does not constitute a waiver of the restrictions which would prevent other property owners from enforcing them. Corey [Carey] v. Lauhoff, 301 Mich. 168 [3 N.W. 2d 67]. Furthermore, the fact that other provisions of the original restrictive covenants may have been violated does not vitiate those covenants that have been maintained under a general plan of development. Wilcox v. Mueller, 250 Mich. 167 [229 N.W. 600].

The “tomato house” that was authorized in Agnes Lott’s deed had not been built at the time of this suit. Cook did not even know that the exception had been granted and it was not the basis of his defense. Cook’s defense was that he did not know about the restriction in his own deed when he purchased the property. The chancellor found that Cook knew of the restriction when he purchased the mobile home and placed the home on his property; Cook did not deny that fact. Cook said he was not told of the restriction before he got his deed in January, 1978, but first learned of the restriction in May, 1978. He admitted that he did not intend to put a mobile home on the lot when he bought the land but intended to put a commercial log house on it. However, Cook stated that he was “burned up” when he saw the restriction and he did not think the restriction would stand up. He said he felt “a man owns his land outright and ought to be able to do whatever he sees fit... ”

The chancellor’s misgivings, expressed in oral remarks ' at the conclusion of the case, were directed at this type of development where there was no platted subdivision and where there were no restrictions in a Bill of Assurance filed pursuant to Ark. Stat. Ann. § 50-427. Also, this development was not complete and would not be complete until all the deeds were delivered.

We have the same misgivings about such a development and the manner in which the restrictions are imposed in each deed. But such restrictions have been found legal where a general plan exists. Moore v. Adams, supra. We must deal with the case before us, not speculating on the future of the development. There are remedies available to enforce such a plan.

The evidence in the present case was decidedly against Cook since it indicated that Cook simply did not want to abide by the restrictions. He knowingly violated the contract without any legal or equitable excuse. Consequently, he must suffer the consequences.

The decree is reversed and the cause remanded for proceedings consistent with this opinion.

Reversed and remanded.


author: John I. Purtle, Justice. Darrell Hickman, Justice,

text:
    David FAIN v. STATE of Arkansas
    CR 80-202
    611 S.W. 2d 508
    Supreme Court of Arkansas
    Opinion delivered February 9, 1981

      E. Alvin Schay, State Appellate Defender, by: Jack R. Kearney, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted by a jury in the Saline County Circuit Court of aggravated robbery and theft of property. He was sentenced to eighteen years for robbery and three years for theft of property. He appealed on the ground that the trial court erred in failing to suppress evidence at a Denno hearing. We find that the court did not commit reversible error.

Appellant and an accomplice were suspected of robbing the Union Bank in Benton, Arkansas, on March 14, 1980. The officers were in immediate pursuit and with the aid of bloodhounds cornered the two suspects in a house at Bryant, Arkansas. The two were finally discovered in the attic partially hidden under the insulation. The county sheriff and other officers were present at the time. Two officers from the state police rousted the appellant out of the attic and one of them accompanied him to his state police vehicle. The other state policeman continued to search the attic for a gun and money which they believed were in the attic. The county sheriff was assisting the officer in searching for the items in the attic. He subsequently got down and went out to the car where appellant was being held by the policeman and inquired of appellant where the money and gun were located. The appellant told the sheriff the spot where the gun and money were located. Immediately after the sheriff returned to the attic the items were found. Although there is a slight dispute in the evidence, it is fairly obvious the appellant had not been given a Miranda warning at the time he told the sheriff where the gun and money were located. Obviously, he was in custody at that time.

A Denno hearing was held and although the evidence was conflicting the court held the gun and money were not fruits of the poisonous tree and refused to suppress the evidence. A trial was held and the evidence was admitted. Appellant was convicted by the jury and received eighteen years for robbery and three years for theft of property.

Appellant bases his appeal on the argument that the court should have excluded the gun and money as illegal evidence. We agree with the appellant that the state did not overcome the burden of showing that the evidence was not received as a result of illegal interrogation. The evidence is very conflicting but the county sheriff unequivocally stated he obtained the information from him while the appellant was seated in a state police vehicle awaiting transfer to the county jail.

In spite of the fact that the money and the gun may have been discovered as a result of illegal questioning, we think it should be admitted under the inevitable Discovery Rule. This rule has been adopted in other states. State v. Byrne, 595 S.W. 2d 301, 304 (Mo. App. 1980), and People v. Fitzpatrick, 346 N.Y.S. 2d 793 (1973), cert. denied 414 U.S. 1050 (1973). The doctrine is designed to remove evidence which was discovered as a result of improper conduct on the part of the officer from the exclusionary rule in certain specific situations. If it is clearly evident that the officers would have discovered the evidence in any event, then the failure to give the Miranda warning will not prevent its introduction. We recognize that this rule must be strictly adhered to and in order for it to apply, the state must prove by clear and convincing evidence that it would have acquired the items through legal means regardless of its illegality. Also, the police officers involved must have acted in good faith in accelerating the discovery of the evidence. The chief reason for adopting this rule can be seen if you consider the case where a party observes the police obviously about to discover incriminating evidence. In such case the party could blurt out the location of the evidence and thereby prevent it being used in a trial. Therefore, we cautiously adopt the Inevitable Discovery Rule with the understanding that it is not intended to erode the exclusionary rule.

In view of the particular facts of this case, it is obvious to us that the items in question were surely about to be discovered. One officer remained in the attic and continued to search during the time the appellant and officers were at the scene. It seems to us that the evidence is very clear and convincing that the officers would have discovered these items regardless of whether the appellant made a statement. Therefore, the case must be affirmed.

Affirmed.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I do not agree that the State failed to meet its burden of proof as the majority suggests. However, it is an extremely close issue and I have no difficulty in concurring with the result by applying the inevitable discovery rule. I would not adopt it cautiously with the idea that the exclusionary rule should not be eroded. I have heretofore expressed my opinion that the exclusionary rule needs erosion.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice,

text:
    Edgar BAKER and Leona BAKER, His Wife v. Richard Lee ARMSTRONG and Peggy Joyce ARMSTRONG, His Wife and Leo WRIGHT
    79-212
    611 S.W. 2d 743
    Supreme Court of Arkansas
    Opinion delivered February 9, 1981
    [Rehearing denied March 16, 1981.]

      Wilson & Grider, by: Murray L. Grider, for appellants.

      Highsmith, Gregg, Hart & Farris, by: John C. Gregg, for appellees.
   Robert H. Dudley, Justice.

This is a quiet title action involving 17.3 acres in Independence County. The chancellor found the title to the land in dispute should be quieted in the appellees, as their record title is superior to that of appellants, and because they and their predecessors in title had been in possession of the land for a long period of years. The appellees were awarded $100 in damages for timber which the appellants had sold off the tract and were found to have a private easement across the appellants’ adjoining land. The findings of the trial judge are not clearly against the preponderance of the evidence and we affirm.

The only claim to record title by appellants is two deeds executed in 1973 from the heirs of James M. Case. There are no conveyances to James M. Case nor are there any to his heirs who executed the deeds.

The chain of title from the United States of America down through appellees is unbroken. However, commencing in 1933, an erroneous line appears in the descriptions in the various deeds. While the deeds from 1933 do not correctly describe the tract in question, they do furnish a sufficient key to make the description definite. The south and east borders are marked by a creek which is referred to in the deeds, and the west boundary is marked by the railroad right-of-way which also is referred to in the deeds. The north line is marked by a fence line tying into a rock wall which was not mentioned in the deeds. This is a sufficient description for color of title. Branscum v. Drewry, 232 Ark. 947, 341 S.W. 2d 6 (1960).

The appellees have color of title and the record reflects overwhelming proof of possession of the tract by appellees and their predecessors in title. The chancellor did not commit error in quieting the title in appellees.

The appellants sold timber off the disputed tract but the timber cutter did not know how much timber he cut, and he guessed between 2,500 and 3,500 board feet. No other witness knew the value at stumpage.

The chancellor awarded $100 as nominal damages and we affirm. Nominal damages may be recovered for the infringement of a right. See Western Union Telegraph Co. v. Aubrey, 61 Ark. 613, 33 S.W. 1063 (1896). Additionally, wherever a party establishes the infraction of a right but the evidence fails to show the extent of the damages resulting therefrom, he is entitled to nominal damages, whether the act complained of is an actual injury or not. Cathey v. Arkansas Power & Light Co., 193 Ark. 92, 97 S.W. 2d 624 (1936). Some damages are always presumed to follow from the violation of any right and the law in such cases awards nominal damages. See jBarlow v. Lowder, 35 Ark. 492 (180).

The chancellor also found the appellees had acquired a private easement by prescription across appellants’ land to the tract in dispute. The proof is substantial that appellees and their predecessors in title have used the road in question for many years. To acquire a private way by prescription, there must be a continuous use for seven years known by the owner. See LeRoy v. Sigman, 209 Ark. 469, 191 S.W. 2d 461 (1945). The finding of the chancellor is not against the preponderance of the evidence.

We affirm.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I agree the chancellor should be affirmed but for different reasons. The appellants did not abstract any pleadings in this case except the complaint. There is no order or decree of the court and I cannot say whether, the chancellor was clearly wrong or not based on the abstract. His findings are indispensable to an appellate review. We have consistently enforced Rule 9 and I would affirm the decree on this basis rather than on the merits.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice, Steele Hays, Justice,

text:
    Michael CASH v. STATE of Arkansas
    CR 80-111
    611 S.W. 2d 510
    Supreme Court of Arkansas
    Opinion delivered February 9, 1981

      Ralph E. Wilson, Sr., for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

On December 11, 1978, the appellant, Michael Cash, was jailed and later charged with rape, burglary and three counts of criminal attempt to rape. On September 18, 1979, after more than nine months’ incarceration, he filed a motion alleging that the State had failed to afford him a speedy trial and asking that the charges against him be dismissed. That motion was denied, and on October 22, 1979, the appellant was found guilty of all four crimes.

Appellant first contends that the trial court committed error in not dismissing the charges against him after he was held in jail for more than nine months. It is true he was in jail and not tried within nine months, but this does not entitle him to absolute discharge. Instead, he was entitled to be released on his personal recognizance. Ark. R. Crim. Proc., Rule 28.1 and 30.1 (b) (1976); Bell v. State, 270 Ark. 1, 603 S.W. 2d 397 (1980).

The second contention is the trial court committed error by refusing to dismiss the charges after appellant was not brought to trial within three full terms of court. Rules 28.1 and 30.1 (a) of the Arkansas Rules of Criminal Procedure specify that a defendant shall be absolutely discharged if not brought to trial before the end of the third full term, unless there are necessary delays.

On December 11, 1978, the date of incarceration of the appellant, the Osceola District of the Mississippi County Circuit Court, part of the Second Circuit, had three divisions with each division having a responsibility for protecting a defendant’s right to a speedy trial. Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980).

January 1, 1979, was the effective date of Act 432 of 1977 (Ark. Stat. Ann. § 22-310 [Supp. 1979]) which abolished divisions of circuit court. The courts of the Second Circuit, which had been multi-division courts, became multi-judge courts with the terms of various divisions becoming terms of court for that county. Alexander v. State, supra. The beginning dates of the terms in the Osceola District of Mississippi in 1979 were fixed as:

1. First Monday in February.
2. Third Monday in March.
3. First Monday in June.
4. Third Monday in October.
5. First Monday in November.

Each term ended when the next term Began.

The appellant was arrested during the November 1978 term of the third division, which ended on the first Monday in February. The term in which the appellant was arrested is not counted in determining compliance with the speedy trial rules. Kemp v. State, 270 Ark. 835, 606 S.W. 2d 573 (1980).

The first term that is counted against a speedy trial began on the first Monday in February, 1979, and ended on the third Monday in March. The appellee now contends that this term should be excluded as “It can be presumed that neither appellant nor the State would have been prepared for trial during the February term ...” There is no such presumption. Rather, it is the burden of the State to prove any delay is justified. State v. Lewis, 268 Ark. 359, 596 S.W. 2d 697 (1980).

The second full term began the third Monday in March and ended the first Monday in June. The appellee contends that this term ought to be excluded from computation because the state intended to try the appellant on March 27, but because the lead investigating officer intended to attend a law enforcement conference on that date, trial was cancelled. Rule 28.3 (d) (i) provides that the prosecution may gain a continuance, which is excluded from computation, when evidence material to the State’s case is unavailable and due diligence has been exercised in an attempt to get the evidence. The explanation given for not trying the appellant is not a valid reason to pass the case for the full term. There is no provision in the Rules of Criminal Procedure to exclude a term of court just because a case there is neither an order setting the case nor an order continuing the case. This term must be counted as the second full term without trial.

The State admits that the term which began on the first Monday in June and ended on the third Monday in October must be counted. At the end of this term the appellant had not been tried before the end of three full terms from the date of incarceration. It was during the next term, the fourth term, that he was tried and convicted.

More than three full terms of court passed before appellant was tried, and no good cause was shown for the delay. The trial court committed error in not dismissing the charges.

Reversed and dismissed.

Hickman and Hays, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I dissent for the reasons I expressed in Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980), and because of our decision in Harkness v. Harrison, 266 Ark. 59, 585 S.W. 2d 10 (1979).

Steele Hays, Justice,

dissenting. The majority has correctly applied the holding of Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980) to the facts of this case; however, I earnestly disagree with the result reached in Alexander and, therefore, respectfully dissent. My views regarding the tracking of terms of court for putposes of a speedy trial are expressed in the dissenting opinion in the Alexander case.


author: Robert H. Dudley, Justice.

text:
    Danny Lee ASHBY v. STATE of Arkansas
    CR 80-221
    611 S.W. 2d 512
    Supreme Court of Arkansas
    Opinion delivered February 9, 1981

      E. Alvin Schay, State Appellate Defender, by: Matthew Wood Fleming, Deputy State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant Danny Lee Ashby was charged with the crimes of aggravated robbery, rape and kidnapping which occurred at the Pizza Hut restaurant in Conway on May 2, 1979.

At the trial, the jury deliberated for one and one-half hours and returned to the courtroom to render its verdict. The Court read the verdict forms finding appellant guilty of all three charges and fixing the sentence for each crime. The defense attorney requested that the jury be polled and all jurors stated there was unanimity on guilt, but one juror stated that she did not agree to the amount of time to be served, and had not voted on the sentence. The Court then instructed the jury to return to the jury room and fix a sentence on the verdicts, which they did. Upon the jury’s return to the courtroom, the verdict forms were handed to the Court and read aloud. Each juror was again polled and responded individually that he or she found the defendant guilty of each of the crimes and fixed each of the sentences as set out on the verdict forms.

Appellant asks that the convictions be reversed and remanded, or in the alternative, that the sentences be reduced to the minimum, because of the coercive atmosphere created around the juror who did not originally vote on the sentences.

The verdict of a jury is to be arrived at freely, fairly and without coercion. The validity of a unanimous verdict is not dependent on what was agreed on in the jury room, but rather what is unanimously reported in open court. The reason is that any juror, when polled, may dissent from a verdict agreed to in the jury room, and when this happens the jury should either be discharged or be returned to the jury room for further deliberation.

After the one juror stated that she had not voted on the sentence there was no reason to declare a mistrial, but there was a reason to seek clarity. As stated in Williams v. United States, 419 F. 2d 740 (D.C. Cir., 1969), there is a clear distinction between the actions of a trial judge to obtain clarity in place of confusion and actions that produce, a likelihood that a juror has been coerced. Here the court sought to eliminate a misunderstanding and sent the jury back to the jury room to fix the sentence, as authorized by Ark. R. Crim. P. 33.4 (b) (i) (1976). There was no coercion and no error in accepting the verdict under the circumstances.

Affirmed.


author: Steele Hays, Justice.

text:
    Alvin Lee MEYERS v. STATE of Arkansas
    CR 80-258
    611 S.W. 2d 514
    Supreme Court of Arkansas
    Opinion delivered February 9, 1981

      Robert S. Blatt, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant was charged in the Fort Smith District, Sebastian County, with attempted rape and convicted of third degree battery. The jury imposed a punishment of one year in jail and a fine of $1,000. Two errors are charged: the trial court should have granted a motion to quash the jury panel and should have declared a mistrial because of a remark by the prosecutor during voir dire examination. The arguments are without merit.

The motion to quash mentions no constitutional issues, but alleges simply that in the opinion of counseka jury drawn from the entire county would be “fairer” than a jury drawn only from Fort Smith.

Article 3, § 5, of the Arkansas Constitution provides Sebastian County may have two districts and two county seats. Enabling legislation established the districts as Fort Smith and Greenwood, the dividing line being the city limits of Fort Smith. The boundaries of the districts change as the City of Fort Smith changes through annexation. Each district maintains its own jury panel with persons residing in the district selected from voter registration rolls, separately maintained.

On appeal, appellant has broadened considerably the arguments in support of the motion to quash: he contends that Amendment 55 of the Arkansas Constitution effectively repeals Article 13, § 5; that Article 2, § 10 entitles him to a county-wide jury panel; and that Amendment 7, § 1 invalidates legislation which enables the district boundaries to change periodically as lands are annexed to the City of Fort Smith. None of these arguments were posed in the motion to quash and, thus, were not addresssed to the trial court in the first instance. They cannot be raised for the first time on appeal. Federal Express Corp., et al v. Skelton, 265 Ark. 187, 578 S.W. 2d 1 (1979); Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974); Ford v. State, 253 Ark. 5, 484 S.W. 2d 90 (1972).

The argument which is raised by the motion to quash, that appellant is entitled to be tried by a jury drawn entirely from Sebastian County, rather than from Fort Smith alone, has been considered a number of times and put to rest. Walker v. State, 35 Ark. 386 (1880); Potter v. State, 42 Ark. 29 (1883); Collins v. State, 200 Ark. 1027, 143 S.W. 2d 1 (1940); Terry v. State, 149 Ark. 462, 233 S.W. 673 (1921); Warren v. State, 241 Ark. 264, 407 S.W. 2d 724 (1966).

Appellant’s second point is that a mistrial should have been granted because during voir dire the prosecuting attorney said to a prospective juror “the defendant might or might not testify.” Citing Adams v. State, 263 Ark. 536, 566 S.W. 2d 387 (1978) and Clark v. State, 256 Ark. 658, 509 S.W. 2d 812 (1974), the appellant argues that the remark impinged on his Fifth Amendment right not to testify. However, counsel for the state denied the remark attributed to him, stating that he said only that there “would be one witness for the state.” This, apparently, is how the trial judge heard the remark. Since the remark itself is not in the record, only the dispute between counsel, we assume the trial judge was correct and that he properly denied the motion for mistrial, the granting of which rests within the sound discretion of the trial court. Fauna v. State, 265 Ark. 934, 582 S.W. 2d 18 (1979); Finch v. State, 262 Ark. 313, 556 S.W. 2d 434 (1977).

Affirmed.


author: Per Curiam.

text:
    Daniel Lon GRAHAM v. STATE of Arkansas
    CR 78-36
    611 S.W. 2d 514
    Supreme Court of Arkansas
    February 9, 1981

      Thomas Carpenter, for petitioner.

      Steve Clark, Atty. Gen., for respondent.
   Per Curiam.

The defendant, Daniel Lon Graham, was convicted in the Circuit Court of Prairie County of kidnapping for ransom, and a belated appeal was allowed. The State failed to produce the transcript within 90 days and the defendant petitioned to vacate the conviction. That was denied in Graham v. State, 264 Ark. 489, 572 S.W. 2d 385 (1978), aper curiam order.

The per curiam order recites the reasons the State has not provided the defendant a transcript and cites the applicable statute for the reconstruction of the record.

Defendant now files a motion for clarification. As this Court appointed the attorney for the defendant, and has requested his services, we feel some obligation to provide a means of contacting people to prepare a bystander’s bill. The attorney for the defendant should contact the Attorney General who will make a telephone available for contacting witnesses. Our intent is that both parties can contact the witnesses at the same time. The Prosecuting Attorney of the District shall be notified in order to be present for the telephone conversations if desired.

This opinion is not binding on any substantive matter and the actual reconstruction of the record cannot be conducted in this court. The reconstruction must take place in the lower court.


author: James R. Cooper, Judge.

text:
    Matthew COULSON (Surviving heir of Sara Ann COULSON), Emma Mamie BARCUS and Hannah VINCE, Heirs at Law of J.R. ENGLISH, Deceased v. Robert D. HILLMER and Bernice B. HILLMER, Husband and Wife
    CA 80-367
    612 S.W. 2d 124
    Court of Appeals of Arkansas
    Opinion delivered February 11, 1981

      Walters, Davis & Cox, for appellants.

      Douglas W. Parker, for appellees.
   James R. Cooper, Judge.

This is an appeal from a determination by the Chancery Court of Sebastian County holding that appellees were entitled to have their title to eighty acres of land in Sebastian County confirmed by reason of adverse possession and by reason of an “expressed survivorship title” in appellees’ predecessors in title. The Hillmers, plaintiffs in the trial court, filed their petition to quiet title on November 5, 1979.

On September 27, 1924, J.R. English and C.F. Bach took title as tenants in common to the eighty acres in question. English and Bach, who were unmarried and not related, lived on the property until their deaths. There was testimony indicating that they may have made two or more wills each, but the purposes of this case, each died intestate.

J.R. English died in 1963, leaving three sisters surviving him, namely Sara Ann Coulson, Emma Mamie Barcus, and Hannah Vince, who succeeded to his interest in the property. Sara Ann Coulson is now deceased, leaving Matthew Coulson as her sole heir. Matthew Coulson, Emma Mamie Barcus, and Hannah Vince were the defendants in the trial court, and are the appellants here.

After the death of J.R. English, C.F. Bach lived on the property alone, and paid or caused to be paid the taxes until his death on August 10, 1977. Bach was ninety-three years old at the time of his death, and for a number of years prior to his death the only portion of the property used by him was the small' house where he lived. No improvements were made on the land during the lifetime of Bach, and appellee Robert D. Hillmer testified that when he bought the property in October of 1977, the windows were starting to fall out of the house, the barn was rusting down, the old fence was on the ground, and the land was grown up in briars and brush.

On August 1, 1966, C.F. Bach executed a warranty deed purporting to convey the entire estate in the property to his sister, Fannie Sharp, and his niece, Evelyn Bernardin, reserving a life estate to himself. There was no visible change in the possession or control of the property after the execution and recording of the deed. On February 27, 1976, Fannie Sharp executed a warranty deed conveying her undivided one-half interest to Vermeil Daffron, her daughter.

On October 10, 1977, Evelyn Bernardin and Vermeil Daffron executed a warranty deed conveying the entire estate in the eighty acres to appellees. After an unsuccessful effort to obtain a quitclaim deed from the appellants, the appellees filed their petition to quiet title. In an alternative petition subsequently filed, the Hillmers asked that should the respondents below be declared to be one-half owners of the property, the Hillmers be reimbursed for their expenses in improving the property. The Hillmers allege extensive improvements on the property and the appellants concede in their response to the alternative petition that the Hillmers should be entitled to the current value of any such improvements. In their response, appellants proposed that the property be partitioned.

Vermeil Daffron testified that J. R. English and C. F. Bach had a verbal agreement that if one passed away, the other one got what was left, and that Bach had claimed the land as his own after English died. She stated that she and her sister, Evelyn Bernardin, paid the taxes for thirteen years; that she saw a will that had been executed in 1966 by C. F. Bach, and “. . .it said at his death that it went to his sister, Fannie Sharp, and to his niece, Miss Evelyn Bernardin.” She further stated that the will was not probated after Bach’s death, but that she wrote Emma Barcus, one of the appellants, and told her the farm was going to be sold, and that if she, Emma Barcus, had any interest in it, “My advice to you is to come on down and get a lawyer and put in for your part.”

Appellant Matthew Coulson is sixty-nine years old and lives in Kansas City, Missouri. He testified that he and his family visited J. R. English and C. F. Bach from time to time; that he heard a discussion between English and Bach regarding wills, and that English read his will; that it provided that “the one that lived the longest was to live on the property, keep the taxes paid until they passed away, and then it should be divided equally among the heirs.” Coulson also stated that after the death of English, Bach wrote Emma Barcus “all the time” and reported that he had paid the taxes; that Bach lived on the property with the permission of Coulson’s mother and aunts. He testified that he had no knowledge of the deed made by C. F. Bach in 1966 until November of 1979.

For reversal, appellants argue that (1) there was insufficient evidence to support the trial court’s ruling that appellees and their predecessors in title acquired title by adverse possession, and (2) there was insufficient evidence to support the trial court’s ruling that C. F. Bach inherited title to the property from J.R. English or that C. F. Bach took title to the property under an oral agreement.

It is undisputed that C. F. Bach alone was in actual possession and control of the property from the time of J. R. English’s death until Bach’s death in August of 1977. Appellees concede that they must “tack” their time of possession to that of C. F. Bach in order to show themselves entitled to ownership of the property by adverse possession, thus appellees have the burden of showing that Bach held adversely to the appellants.

The general rules for establishing title by adverse possession are set out in many Arkansas cases, and are clearly set out in the case of Utley v. Ruff, 255 Ark. 824, 502 S.W. 2d 629 (1973), where the Arkansas Supreme Court stated:

Title to land by adverse possession does not arise as a right to the one in possession; it arises as a result of statutory limitations on the rights of entry by the one out of possession. Possession alone does not ripen into ownership, but the possession must be adverse to the true owner or title holder before his title is in any way affected by the possession, and the word ‘adverse’ carries considerable weight. . . One of the cardinal principles of adverse possession in order that it may ripen into ownership is that the possession for seven years must have been actual, open, notorious, continuous, hostile and exclusive, and it must be accompanied with an intent to hold against the true owner.

In conclusion, the Court stated:

As already pointed out, for Mr. Ruff to have prevailed in this case, it would have been necessary for him to have proven actual acts indicating his claim of ownership in the possession of the land involved, otherwise the true owner would never know that anyone was claiming adversely and the true owner’s cause of action would not accrue until he did have actual or constructive knowledge or notice that his land was being claimed by another. . .

When J. R. English died, the appellants became co-tenants with C.F. Bach, and the mere lapse of time did not dissolve the co-tenancy. Griffin v. Solomon, 235 Ark. 909, 362 S.W. 2d 707(1962). If the successors in title to C.F. Bach, the appellees, are to show that the co-tenancy was dissolved, they must show that the possession of Bach was actual, open, notorious, continuous, hostile, and exclusive, and it must be accompanied with an intent to hold against the appellants. They must further show that Bach’s adverse claim was brought home to the appellants directly or by notorious acts of such unequivocal character that notice may be presumed.

In Dodson v. Muldrew, 239 Ark. 202, 388 S.W. 2d 90 (1965), Court refers to the rule in Singer v. Naron, 99 Ark. 446, 138 S.W. 958, an earlier case with approval.

The reason is that possession of one tenant in common is prima facie the possession of all, and the sole enjoyment of rents and profits by him does not necessarily amount to a disseizin. Hence, for the possession of one tenant in common to be adverse to that of his co-tenants, knowledge of his adverse claim must be brought hime to them directly or by such acts that notice may be presumed. In order for the possession for the tenant in common to be adverse to that of his co-tenant, knowledge of his adverse claim must be brought home to them directly or by such notorious acts of unequivocal character that notice may be presumed.

Between tenants in common there is also a fiduciary relationship, for they stand by operation of law in a confidential relation to each other, as to the joint property, and the duty is imposed on them to protect and secure their common interests. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W. 2d 848 (1974).

The only possible testimony which might show hostile possession by C. F. Bach was his delivery of the warranty deed to his sister and niece in 1966. There is evidence that the taxes were paid from that date by Vermeil Daffron and Evelyn Bernardin, but the property continued to be assessed and the taxes paid in the name of C. F. Bach. Standing alone, the delivery of the deed does not constitute substantial evidence of hostile or adverse possession on the part of C. F. Bach. After delivery of the deed Bach continued to live alone on the property as he had since the death of J. R. English; neither he nor his grantees made any improvements on the property; and the grantees did not enter into possession or exercise any other rights of ownership. More importantly, there is no evidence of acts so notoriously and unequivocally hostile as to charge appellants with knowledge of C. F. Bach’s adverse claim. They were not told that a deed had been executed, and they were under no obligation to search the record; indeed, if they had searched the tax record, they would have discovered that the taxes were assessed and paid in the name of C. F. Bach. There is evidence that Vermeil Daffron acknowledged the appellants’ claim when she wrote one of the appellants, Emma Barcus, after Bach’s death, and told her, “My advice to you is to come on down and get a lawyer and put in for your part.”

We hold that the decision of the trial court finding adverse possession in appellees is clearly against the preponderance of the evidence, and that appellees have failed to establish this claim.

We further hold that there was insufficient evidence to support the trial court’s ruling that C. F. Bach inherited title to the property from J. R. English, or that Bach took title under an oral agreement. Such a ruling would allow the conversion of a tenancy in common into a joint tenancy with right of survivorship, based upon an oral agreement. We are unaware of any authority for such a conversion.

In Williams v. Robinson, 251 Ark. 1002, 476 S.W. 2d 1 (1972) the Court stated, “We have long recognized that an oral contract to make a will to devise or a deed to convey real estate is valid when the testimony to establish such contract is clear, cogent, satisfactory, and convincing.” In Crowell v. Parks, 209 Ark. 803, 193 S.W. 2d 483 (1946), it was stated that the evidence must be so strong as to be substantially beyond reasonable doubt.

There is evidence that J. R. English and C. F. Bach agreed that the survivor was to take the entire estate, but there is also evidence that they agreed that the survivor would only have possession for as long as he lived. The testimony clearly falls short of the clear, cogent, satisfactory, convincing, and substantially beyond reasonable doubt test required to enforce and oral contract.

We hold that appellants and appellees are tenants in common as to the subject property, and the case is remanded to the trial court for further proceedings consistent with this opinion, including the alternative petition of appellees.

Reversed and Remanded.

Corbin, J., not participating.

Fogleman, Special Judge, not participating.