author: David Newbern, Justice. Otis H. Turner, Justice,

text:
    Willie D. ROBINSON and Olivia Robinson v. CITY OF ASHDOWN
    89-235
    783 S.W.2d 53
    Supreme Court of Arkansas
    Opinion delivered January 29, 1990

      Walker, Roaf, Campbell, Ivory & Dunklin, by: Sheila F. Campbell, for appellants.

      Jay P. Metzger, for appellee.
   David Newbern, Justice.

This is an inverse condemnation case. The appellants, Willie D. and Olivia Robinson, presented evidence that their home had, over a nine-year period, and despite their continued pleas to city officials and the city council for relief, been flooded intermittently with effluent from the sewer system constructed and operated by the appellee City of Ashdown. They sought compensation for the taking of their property which their evidence showed had been substantially reduced in value by the flooding. The court held that the Robinsons had shown only negligence on the part of the city and directed a verdict against them on the basis of the city’s immunity from actions in tort. See Ark. Code Ann. § 21-9-301 (1987). The question presented to us is whether instances of negligence, with respect to which the city has immunity from suit, may, if sustained a long time, amount to inverse condemnation. We hold that in such circumstances inverse condemnation occurs, and the judgment is reversed and remanded.

The Robinsons moved into their newly built house in 1974 or 1975. In the winter of 1978-79 they began to have sewer problems. Raw effluent came through their toilets and shower floor opening. At first Mr. Robinson thought there was a problem with his service line connecting his house to the sewer line under the street in front of the house. Plumbers investigated and found no problem with the Robinsons’ service line. It was clear that the sewage was backing up from a source outside the Robinsons’ house.

The Robinsons presented the testimony of Ray Burk, an engineer hired by them to study the problem. Burk determined that the elevations of the openings in the Robinson home were only slightly higher than that of the “wet well” at a lift station into which the city’s sewage was supposed to flow before being pumped to a higher elevation for processing. Lift pumps at the wet well were designed to pump the raw sewage to a higher elevation for processing and, when operating normally, to keep the well from overflowing. When the well did overflow, the sewage backed up into the lines. There is a manhole near the Robinsons’ home through which access is obtained to the city sewer line. Sewage backing up from the lift station flooded the manhole from time to time, and when the manhole filled, the Robinsons’ home was next lowest point, and the sewage would come out there. On many occasions, Mr. Robinson went to the lift station to turn on the lift pumps by throwing a breaker switch. Mr. Burk testified that the pumps were apparently adequate to control the problem when they were running.

The problem continued over the years. Mr. Robinson had employees of the city water department inspect his home, and he presented the matter to the city council on more than one occasion without relief. Photographs introduced into evidence showed extensive water damage to the home. Mr. Robinson made an opening in the service line in his yard and dug a hole there in an attempt to take care of the overflow. He testified that the smell was ever-present in his house and yard. His family could not use the home to entertain friends, and they feared for their physical well-being.

Mrs. Robinson testified that one of their children once came to her and said there were “flowers” growing in the shower in the master bedroom. It was a fungus. Mrs. Robinson testified that the house was constantly smelly and damp and that she and her daughters had had fungal infections resulting from germs in the shower stall.

On cross-examination, Mrs. Robinson stated that the problem had lessened in 1986. While the flooding would no longer wet the carpets, the toilets continued to overflow and the water “might... hit the edges.” She said the house smells bad now, and she and her family cannot enjoy it at all.

The technical testimony presented by the Robinsons and by the city conflicted. The mayor of Ashdown, Charles Patterson, who is an engineer with considerable experience designing city sewer systems, testified that Mr. Burk was wrong and that the problem could not have originated with the lift station as Burk had explained it. However, Bill Duckett, a foreman in the city water department testified that the lift pumps in the lift station nearest the Robinson home would stop running in periods of heavy rainfall. Restarting them would cause the water level to fall, but it would take 24 hours before the area of the Robinson home would be relieved. Mayor Patterson testified that the lift pumps were replaced after he became mayor in 1987.

Negligence, nuisance, and inverse condemnation

In McLaughlin v. City of Hope, 107 Ark. 442, 155 S.W. 910 (1913), we clearly recognized a cause of action for inverse condemnation, although we did not describe it in those words. A miller leased land through which a stream passed. The city, which was an upper riparian landowner, began to discharge sewage into the stream. That made the water unsuitable for producing steam to run the mill. The miller brought an action for damages. The city defended on the basis of its sovereign immunity. The trial court sustained a demurrer to the complaint. We reversed and held that, although the complaint could have been worded more artfully, it was not a claim for negligence or wrongdoing on the part of the city but was a claim for compensation due pursuant to Ark. Const. art. 2, § 22, for the taking of property. See also Jones v. Sewer Imp. Dist. No. 3 of Rogers, 119 Ark. 166, 177 S.W.888 (1915), where we noted with apparent approval that the plaintiff in a nuisance abatement proceeding had, in a separate proceeding in circuit court, been allowed to recover for a taking of his property by a sewer improvement district due to the city’s negligent operation of a septic tank.

In part III of their complaint, the Robinsons clearly stated a claim for “a taking of the plaintiffs property” which “condemned and destroyed all reasonable value of the property” requiring that the plaintiffs be “compensated in full for their loss.” The question becomes whether a “taking” may occur as the result of the city’s negligent operation of its sewer plant. The trial court’s ruling suggested that by proving the city’s negligence the Robinsons killed their inverse condemnation or “taking” claim. We think not.

As originally conceived and developed, the concept of inverse condemnation was a remedy for physical taking of private property without following eminent domain procedures. “Fault” has nothing to do with eminent domain, and it is not bare trespass or negligence which results in inverse condemnation but something which amounts to a de facto or common law “taking.” J. Sackman & P. Rohan, Nichols on Eminent Domain, § 8.1 [4] (Rev. 3d ed. 1985, Supp. 1987). Inverse condemnation is thus a cause of action against a governmental defendant to recover the value of property which has been taken in fact by a governmental entity although not through eminent domain procedures.

We are aware that it is commonly stated that neither negligent acts committed during routine operation of a public improvement nor other negligence having no relationship to the function of the public work as it was conceived gives rise to a claim for inverse condemnation. See, e.g., Yee v. City of Sausalito, 190 Cal. Rptr. 595, 141 Cal. App. 3d 921 (App. 1983). Although injury to property through negligence or trespass does not, without more, qualify as a taking, it has been held that a continuing trespass or nuisance can ripen into inverse condemnation. City of Jacksonville v. Schumann, 167 So.2d 95 (Fla. App. 1964).

Courts have used both nuisance and trespass theories to overcome the general rule that negligence does not result in inverse condemnation. The author of Annotation, Taking For Public Purposes, 2 A.L.R.2d 677 (1948), discusses the wide variety of rationales among the cases from various states and even within the decisions of the courts of single states in which it has been held that negligence based acts by governmental entities constitute inverse condemnation. It is noted that actions brought in an attempt to avoid municipal tort immunity

have occasionally been successful in some jurisdictions, at least in such particular and specific types of situations as those in which public projects were planned, constructed, repaired or maintained and operated in a negligent manner, or those in which public activities were planned and carried on negligently in such a manner that a nuisance condition resulted to the injury of private property. [2 A.L.R.2d at 680-681]
While it is difficult to reconcile the broad language contained in the individual opinions, even within the same jurisdiction, it may be remarked that the cases have turned upon such factors (1) as the form of the constitutional provision involved; (2) whether, in the jurisdiction, recovery is allowed at all in any type of case under the “eminent domain” theory; (3) the mode in which the asserted cause of action was presented to the court; (4) whether the project itself negligently planned or constructed was an activity for the original establishment of which the right of eminent domain could have been exercised; (5) and, similarly, whether damages which resulted were a necessary consequence or result of the work undertaken. [2 A.L.R.2d at 681]

The city argues that the cases in which we have permitted recovery against a municipality or governmental entity for a taking of property in circumstances similar to those here have been ones in which it was shown that “the governmental entity purposely engaged in an endeavor that caused damage to various landowners.” That presents no distinction in this case because when one knows that an invasion of another’s interest in the use and enjoyment of land is substantially certain to result from one’s conduct, the invasion is intentional. See Rest. Torts 2d, § 825(b), comment (d), discussing conduct constituting nuisance. Here the invasion continued long after the city was put on notice of it.

The city relies on City of Fort Smith v. Anderson, 241 Ark. 824, 410 S.W.2d 597 (1967), in which we reversed a jury award resulting from a single sewage overflow into the landowners’ home. It was a onetime occurrence, and the problem with the city system was immediately corrected, thus it presents no authority in support of the city’s position here.

The city also notes that a taking pursuant to the eminent domain power may not occur unless there has been public benefit. The benefit to the public in this case has been its use of the Robinsons’ home as an overflow dump for sewage. While it might have been less expensive for the city to have seen to it that the overflow did not occur by installing pumps that worked automatically or by hiring more employees to see that they were working when they should have been, it is our view that by failing to remedy the problem the city effectively chose to purchase the Robinsons’ property to the extent the value of that property was diminished by its actions. The public benefitted by not having to spend the money it would have taken to prevent the sewage overflow.

We agree with the suggestion of the author of the A.L.R.2d annotation quoted above that the courts have not been clear in presenting their rationales in cases where statutes conferring immunity from tort liability upon municipalities have been held inapplicable to facts which amount to negligence or nuisance. We want it to be clear that our holding here is based on Ark. Const. art. 2, § 22, which provides, “The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.” When a municipality acts in a manner which substantially diminishes the value of a landowner’s land, and its actions are shown to be intentional, it cannot escape its constitutional obligation to compensate for a taking of property on the basis of its immunity from tort action.

Reversed and remanded.

Glaze, J., concurs.

Hickman and Turner, JJ., dissenting.

Otis H. Turner, Justice,

dissenting. Irrespective of how the majority may rationalize its reasons for reaching an equitable result, this action is nothing more nor less than a suit against a tort-exempt municipality for damages occasioned by negligence. We made one such foray into this arena in Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), an opinion that precipitated the passage in 1969 of Act 165, codified at Ark. Code Ann. § 21-9-301 (1987), which provides:

It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state shall be immune from liability for damages. No tort action shall lie against any such political subdivision because of the acts of their agents and employees.

This statute is unequivocal in its prohibition against any action sounding in negligence, whether based upon trespass or any other tort. Statutes granting immunity from tort liability to subdivisions of the state have been held constitutionally sound by this court. Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984).

We are today holding that, solely as a result of a municipality’s recurring acts of negligent trespass, without a showing of any intent, offended parties may elect to consider their property “taken” by the political subdivision. I do not agree that this holding is within the meaning or the spirit of the Arkansas Constitution, the acts of the General Assembly, or our prior decisions.

The majority cites in support of its rationale the case of Jones v. Sewer Improvement Dist. No. 3. of Rogers, 119 Ark. 166, 177 S.W. 888 (1915), stating that we there noted with “apparent approval” that the plaintiff had, in a separate proceeding, been allowed to recover for the taking of his property by a sewer improvement district due to the negligent operation of a septic tank. The issue of damages, however, was not before this court in Jones', rather, we were asked to enjoin a sewer system from operating in such a manner that created a nuisance on the lands of a farmer. The proper remedy was requested, and, in reversing the lower court, we ordered an abatement of the nuisance.

The only other Arkansas decision cited as authority by the majority is McLaughlin v. City of Hope, 107 Ark. 442, 155 S.W. 910(1913). There, the city intentionally dumped raw sewage into a stream to the injury of a riparian land owner who used water from the stream in his business. In McLaughlin, we accepted the proposition that when a city or town is authorized to collect the sewage of its inhabitants and discharges the waste into a private stream to the damage of the lower riparian owners, this conduct amounts to an exercise of the power of eminent domain for which compensation should be paid.

The major distinction between McLaughlin and the present case relates to scienter. In McLaughlin, there was no negligence involved — the waste was discharged into the stream by the city with knowledge, and the act was intentional. Here, recurring acts of negligence were shown in the city’s failure to adequately maintain a lift pump to transport sewage away from the appellants’ property. The appellants’ proper remedy would have been an action to seek abatement of the nuisance instead of one for damages.

In Jones v. Sewer Improvement Dist. No. 3 of Rogers, we said:

[T]his court has uniformly held that neither municipal corporations nor local improvement districts nor their officers may be sued at law for tort; but it does not follow that in a proper case they may not be enjoined from creating a nuisance or be required to abate one already created by them. Indeed, this affords ground for equitable relief in actions like this.

A tort is a tort, even if it is called “inverse condemnation,” and an action in tort cannot be brought against a municipality.

I respectfully dissent.

Hickman, J., joins this dissent.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    John Ameen ABDULLAH v. STATE of Arkansas
    CR 89-136
    783 S.W.2d 58
    Supreme Court of Arkansas
    Opinion delivered January 29, 1990

      Walker, Roaf, Campbell & Dunklin, by: Larry Dunklin, for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

The appellant appeals from his convictions of two counts of theft of property, attempted capital murder and aggravated robbery, which were the result of a robbery at the Show Biz Pizza Restaurant in North Little Rock. He was sentenced to life imprisonment on his aggravated robbery conviction and received sixty (60) years total on his other convictions. His sentences are to run consecutively. On appeal, the appellant argues that there is insufficient evidence to support his conviction for attempted capital murder, that he received ineffective assistance of counsel during the preliminary stages of his trial, and that the trial court erred in denying certain pretrial motions. We find no error, and therefore affirm.

The appellant and an accomplice, Aulden Thomas, are charged with robbing Show Biz Pizza early in the morning on July 19,1988. While the armed suspects waited almost two hours for the manager to arrive with the combination to the safe, they forced the employees, as they showed up for work, to lie face down in the storage room. When the manager, Cheryl Bolin, arrived, the men forced her at gun point to open the safe. After taking the money, they left in an employee’s car, a blue Monte Carlo. While this robbery was taking place, the police had been called to investigate a car parked in a reserved parking place at Twin City Printing Company located next door. The keys were found in the car, and two holsters and a police scanner were on the floorboard. Upon further investigation, the police found a .357 magnum revolver. While this investigation was taking place, the police observed a blue Monte Carlo drive by slowly and turn around and drive back by. Officer Tanner became suspicious and followed the car in his vehicle. A police chase ensued, and the appellant and Thomas ended up wrecking the car and running on foot. The police officers chased after the armed suspects, and several shots were fired. The appellant and Thomas were finally cornered, arrested and taken to the North Little Rock police station.

Appellant first argues that there is insufficient evidence to support his conviction for attempted capital murder. Specifically, the appellant argues that the state did not prove that he fired his gun at the police officers involved in the chase. We disagree. According to the jury instructions, the appellant was charged with the offense of attempted capital murder for having the premeditated and deliberated purpose of causing the death of a law enforcement officer when that person was acting in the line of duty and with engaging in conduct that was a substantial step in a course of conduct intended to culminate the commission of the capital murder. See Ark. Code Ann. § 5-10-101(a)(3) (Supp. 1989); Ark. Code Ann. § 5-3-201(b) (1987).

In a challenge to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. See, e.g., Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion or conjecture. Id. We need only to consider evidence in support of the conviction. Id.

In keeping with these tenets, we note that Officer Wright testified that he heard two shots and that Officer Tanner had informed him that the appellant had fired. Officer Mask, another policeman involved in the chase, testified that he heard one, possibly two shots exchanged between Thomas and Officer Tanner, but that he could not say for sure who fired them. In addition, the officers’ testimony shows that when the suspects were cornered, Thomas was found in a crouched position trying to inject a bullet into the chamber of his gun. Officer Mask also testified that he fired a round at the appellant when he saw him jump across a ditch and turn towards him, and that he heard another round fired also. All of the officers testified that they saw the appellant and his accomplice point their guns at them and that they heard shots being fired. In addition, Courtney Rhodes, who was standing thirty-five feet away from where the suspects abandoned their car, testified that he saw the two suspects exit the car with their guns, run thirty to fifty feet, and turn toward the police, as they began the chase. At this time, Rhodes stated he heard two shots. When the appellant’s gun was recovered it had seven live rounds in the clip, but the gun had the capacity of eight live rounds. In Thomas’s gun, two live rounds were jammed into the chamber.

While the appellant prefers to focus on the police officers’ testimony that they could not say for sure who fired the shots they heard, we conclude that the above testimony is clearly sufficient to support the appellant’s conviction of attempted capital murder. It is the jury’s job to resolve any contradictions, conflicts and inconsistencies in a witness’s testimony, and in doing so the jurors may believe the parts of his testimony they believe to be true and disregard those they believe to be false. See Henderson v. State, 255 Ark. 870, 503 S.W.2d 889 (1974).

In his second issue, the appellant argues that his two prior attorneys were ineffective during the pretrial hearings. The state contends that this argument can only be made by a separate petition for post-conviction relief. We agree. In Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989), this court abolished A.R.Cr.P. Rule 37 effective July 1, 1989, and amended A.R.Cr.P. Rule 36.4 to provide that a defendant may assert his or her claim of ineffective assistance of counsel on direct appeal. In so doing, we noted that the persons who have been convicted and sentenced during the existence of Rule 37 may still proceed under that Rule. The appellant was sentenced on March 22, 1989 — over two months prior to our abolishing Rule 37 and amending Rule 36.4. We have stated that claims of ineffective assistance of counsel cannot be raised for the first time on appeal, but that a separate petition for post-conviction relief is the appropriate forum for such claims. See Dokes v. State, 299 Ark. 178, 772 S.W.2d 583 (1989); Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988). Since Rule 37 was still effective at the time of the appellant’s sentencing, his claim of ineffective assistance of counsel must be brought under that Rule.

Lastly, the appellant argues that the trial court’s denial of his motion for a continuance, his motion for the judge’s recusal, and his motion for the suppression of a jacket and keys, found in the jacket’s pocket, violated his sixth and fourteenth amendment rights. The appellant made a motion for a continuance on the day before trial so that he could locate two witnesses to testify that the car the police found in the Twin City Printing parking lot was broken down that day. After making the motion, the appellant told the trial judge that he did not know the address or phone numbers of the witnesses. In addition, the appellant fails to show how this testimony would help his case. The trial court held that there was no showing that these witnesses could be located if a continuance was granted. Whether to grant a continuance is addressed to the sound discretion of the trial court, and we will not reverse unless that discretion has been abused. See, e.g., Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). Under these circumstances, we cannot say that the trial court abused its discretion. Likewise, we find no merit in the appellant’s motion for the trial judge recusal. In fact, from our review of the record, we believe that the trial judge showed both patience and fairness in handling this case.

Finally, appellant argues a jacket, and keys to the stolen blue Monte Carlo, found in the jacket, should not have been admitted into evidence. Appellant was wearing the jacket at the time of his arrest. After his arrest, the jacket was found in the hallway outside the interrogation rooms. No one was able to explain how the jacket ended up in the hallway. When the appellant was being taken to the holding cell, a police officer asked him if it was his jacket. The appellant replied in the affirmative, and when the officer picked up the jacket to give it to the appellant he discovered the set of keys. At a pretrial hearing, the trial judge suppressed the appellant’s statement showing ownership of the jacket, but the jacket and keys were allowed into evidence. The appellant asserts a “chain of custody” theory that basically suggests that someone placed the keys in the jacket between the time of appellant’s arrest and when appellant was being taken to a holding cell. In doing so, the appellant suggests that the jacket and the keys were the only sufficient proof linking him to the robbery and the getaway vehicle. We find the appellant’s argument meritless.

First of all, the appellant was photographed wearing the jacket at the time of his arrest, and was seen fleeing from the blue Monte Carlo. We have held that when an object is subject to positive identification the proof of chain of custody need not be conclusive. White v.State, 290 Ark. 130, 717 S.W.2d784 (1986). Clearly, here the jacket and the keys were subject to positive identification.

Furthermore, even if we were to accept the appellant’s argument that the jacket and the keys should have been suppressed, in view of the overwhelming evidence of the appellant’s guilt, it would be harmless error. See Jarreau v. State, 291 Ark. 60, 722 S.W.2d 565 (1987). Such evidence includes testimony from witnesses that directly identify appellant as one of the robbers, and testimony from numerous police officers identifying the appellant as the person driving the stolen car during the police chase. In addition, evidence of the robbery was found in the stolen car immediately after the appellant and his accomplice abandoned it. In sum, the state’s proof showing that the appellant committed the robbery and stole the car was overwhelming.

.For the reasons stated above, we affirm. In accordance with Ark. Sup. Ct. R. 11(f), we reviewed all objections decided adversely to the appellant, and we find no error.

       In pointing out this evidence, we note that the jury was instructed on accomplice liability. We have stated that there is no distinction between the criminal responsibility of an accomplice and the person who actually commits the crime. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981).


author: Per Curiam.

text:
    Benny HUGHES v. STATE of Arkansas
    RC 90-3
    782 S.W.2d 585
    Supreme Court of Arkansas
    Opinion delivered January 29, 1990

      Dale Grady and William F. Magee, for appellant.
    No response.
   Per Curiam.

Petitioner Benny Hughes, by his attorneys, has filed a motion for a rule on the clerk. His attorneys, Dale Grady and William F. Magee, have by affidavit admitted it was their fault that the record was not timely tendered.

We find that the error, admittedly made by the criminal defendant’s attorneys, is good cause to grant the motion for a rule on the clerk.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    IN RE: William P. “Billy” SWITZER, Crossett Municipal Judge
    90-8
    782 S.W.2d 370
    Supreme Court of Arkansas
    Opinion delivered January 29, 1990

      Judicial Discipline and Disability Comm’n, by: Thomas F. Butt, Chairman.
    No response.
   Per Curiam.

This is the first petition the Judicial Discipline and Disability Commission has filed since Amendment 66 to the Constitution was adopted.

It recommends that Municipal Judge William P. “Billy” Switzer be suspended with pay pending the outcome of criminal charges against him in Ashley County Circuit Court. Before we can consider this petition, we note that Switzer has not been served pursuant to Rule 12 A of the Rules of Procedure of the Ark. Judicial Discipline and Disability Commission. See In the Matter of Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission, 298 Ark. 654, 770 S.W.2d 116 (1989).

Any service that complies with rules of the Arkansas Rules of Civil Procedure for personal service will suffice.

It is noted that a copy of the petition was mailed to Mr. Robert J. Johnson, 304 Main Street, Crossett, Arkansas, but no mention is made whether Johnson represents Switzer.

Switzer may, of course, waive service and enter an appearanee. Action on the petition will be deferred pending notice.


text:
    Billy Ray SCOTT v. STATE of Arkansas
    CR 90-6
    782 S.W.2d 584
    Supreme Court of Arkansas
    Opinion delivered January 29, 1990

      Thomas B. Devine III, for appellant.
    No response.
   Per Curiam.

Thomas B. Devine III, Deputy Public Defender for the Sixth Judicial District moves to be relieved as counsel in this appeal. Billy Ray Scott, the appellant, was convicted of first degree murder and sentenced to 200 years imprisonment. At the conclusion of the trial Scott questioned the effectiveness of Devine, who was his counsel at the trial. The trial court held a hearing on the matter, treating it as a petition for relief pursuant to the provisions of former Ark. R. Crim. P. 37. The court found counsel not to have been ineffective and denied the petition. The record, including a transcript of the hearing on ineffectiveness of counsel, has been lodged in this court.

Mr. Devine’s motion to be relieved as counsel is granted. Debby D. Cross, Esquire, is appointed counsel on appeal. The briefing schedule provided in our Rule 11 (a) shall commence this date.


author: Darrell Hickman, Justice.

text:
    Edward Charles PICKENS v. STATE of Arkansas
    CR 89-94
    783 S.W.2d 341
    Supreme Court of Arkansas
    Opinion delivered February 5, 1990
    [Rehearing denied February 20, 1990.]

      Jeff Rosenzweig, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

For the third time, a jury has sentenced Edward Charles Pickens to die for a murder committed in 1975, and for the third time we are hearing his appeal. We affirmed his original conviction and sentence in Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977), cert. denied, 435 U.S. 909 (1978). In 1983, the Eighth Circuit vacated the death sentence due to ineffective assistance of counsel in the penalty phase of the trial. Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983). A resentencing jury was empanelled and Pickens again was sentenced to death. We reversed in Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, cert. denied,_U.S__, 108 S.Ct. 269 (1987), finding error in the limitation of mitigating circumstances presented to the jury. Yet another resentencing jury was empanelled, this time in Arkansas County at the defendant’s request, and Pickens was sentenced to death for the third time. He now appeals from that sentence, raising numerous issues. Finding no reversible error, we affirm.

The primary issue on appeal is whether AMCI 1509 is unconstitutional. The instruction and accompanying forms, which are used to determine the sentence in capital cases, tell the jury that in no event may a sentence of death be imposed unless three findings are unanimously made: 1) that one or more aggravating circumstances exist beyond a reasonable doubt; 2) that the aggravating circumstances outweigh beyond a reasonable doubt any mitigating circumstances found to exist; and 3) that the aggravating circumstances justify beyond a reasonable doubt the sentence of death. It is the third finding with which the appellant takes issue. He claims its language should have been altered so the jury might weigh the mitigating circumstances at all phases of deliberation. He proffered the following instruction:

That the aggravating circumstances when weighed against the mitigating justify beyond a reasonable doubt the sentence of death. (Emphasis added to show modification.)

The judge rejected the proposed instruction, and rightfully so. There is no need to weigh the mitigating circumstances again in the third finding. AMCI 1509 takes the jury through a three-step process. The jury may not proceed to the third step unless it has already decided that the aggravating circumstances outweigh the mitigating. The third finding allows the jury to reject the death penalty in spite of the fact that the aggravating circumstances outweigh the mitigating. See Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989); Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, 465 U.S. 1051 (1984).

We also note that the judge agreed to instruct the jury “if you make those findings you may [rather than will] impose the death penalty.” This modification was favorable to the defendant, but it was not legally necessary. See Ruiz v. State, supra.

The second argument concerning AMCI 1509 is based on the recent United States Supreme Court case of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860 (1988). The Court held there was a defect in the language of Maryland’s sentence determination forms. Section II of the forms reads as follows:

Based upon the evidence, we unanimously find that each of the following mitigating circumstances which is marked “yes” has been proved to exist.

There follows a list of seven mitigating circumstances with blanks beside each marked “yes” or “no.” Then in the determination of sentence section, the instruction reads as follows:

If Section II was completed and all of the answers were marked “no” then enter death.

The Court found this language implied that if the jury did not unanimously agree on the existence of any single mitigating circumstance, it must impose the death sentence. There was a substantial probability that the jurors did not consider all mitigating evidence.

The appellant claims there is no meaningful difference between the Maryland and Arkansas sentencing forms, but they are, in fact, very different. Our Form 2, which accompanies AMCI 1509, expressly allows the jury to list mitigating circumstances which were found by some, though not all, of its members. Form 3 then allows the jury to determine if the aggravating circumstances outweigh any mitigating circumstances. Nothing in the forms indicates to the jury that a mitigating circumstance must be found unanimously before it may be considered in the weighing process. The potential for misunderstanding is not present in the Arkansas forms as it is in the Maryland forms. Therefore, we reject the appellant’s argument.

The appellant’s next major argument concerns the jury selection process. Citing Witherspoon v. Illinois, 391 U.S. 510 (1968), he claims it was error to exclude two venirepersons for cause since they did not make it unmistakably clear that they would automatically vote against the death penalty if selected.

The standard for determining if a venireperson should be excused for cause in this situation is no longer whether the venireperson makes it unmistakably clear that he or she would automatically vote against the death penalty. Instead, the court should decide if the juror’s views would prevent or substantially impair the performance of his or her duties as a juror in accordance with the instructions and oath. It is no longer necessary that the juror’s bias be shown with unmistakable clarity. Instead, great deference is given to the trial judge who sees and hears the potential jurors. The Court in Wainwright v. Witt, 469 U.S. 412 (1985), clarified its holding in Witherspoon to impose this more flexible standard, as we have recognized. See Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986).

The trial judge committed no error in excusing the jurors in this case. Venireperson Lyndell Robinson waivered back and forth between saying she “probably could” impose the death penalty and that she did not believe in the death penalty. The judge finally excused her on his own motion. His decision was based on her inability to give a consistent answer to the death penalty question and on her response which indicated she would be led by other members of the jury rather than make her own decision.

Venireperson Rosemary Horner started out saying she was against the death penalty. When asked if she could impose the penalty, she replied “I guess I could if I had to,” but that she didn’t really want to. Later she said she “guessed” she could consider it and could keep an open mind “if I had to.” She was asked if she would refuse to vote for the death penalty no matter what and replied “no,” and finally said she could vote for the death penalty “if I had to.” The trial court was concerned that Mrs. Horner’s continuous response of “if I had to” indicated a person that might not be able to consider the death penalty even if the evidence justified it. Giving considerable deference to the trial judge’s ability to see and hear Mrs. Horner, we hold her excusal was not error.

Next, the appellant argues that he was forced to use peremptory challenges on nine venirepersons when the judge refused to excuse them for cause. In deciding whether a defendant’s right to an impartial jury has been violated, the focus should not be on a juror who was peremptorily challenged, but on the persons who actually sat on the jury. Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273 (1988). The appellant does not contend that any persons who sat on the jury should have been excluded for cause. He received the impartial jury to which he is entitled and only complains of the loss of peremptory challenges. Under Ross v. Oklahoma, which was decided several months before this trial took place, that is not reversible error. See also Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986).

The appellant claims next that his death sentence should be set aside because the jury ignored evidence of mitigating circumstances. The jury did find that one mitigating circumstance existed, which was that Pickens had suffered an unstable childhood and violence in his teenage years. However they did not find evidence of youth and domination by another person or of any accomplishments since incarceration, despite the fact that Pick-ens presented testimony on these matters.

Pickens was twenty-one years old in 1975 when he and two other men robbed a grocery store in Casscoe. Nine people who were in the store at the time were crowded into a small room while the robbery took place. When Pickens and the others determined that there was no room in which they could lock up their victims, they opened fire on them and shot them repeatedly as they lay helplessly on the floor. Two people were killed and five others were seriously injured.

At the sentencing hearing, one of the victims, Jerry Lockridge, testified that Pickens fired first, shooting Wes Noble at point blank range. Other shots, fired by Pickens or the others, then followed in rapid succession until the gun was emptied. The gun was then reloaded and at least one more shot was fired. Lockridge said, “during the entire time I was there, . . . Mr. Pickens was the individual doing the talking. . . he’s the one that told me to lay on the floor... he was the one that did the talking to Mr. Goacher when they found the money.” Lockridge said he perceived Pickens as the one in control of the situation. Another victim, James Weatherly, said Pickens was not acting on the instructions of anyone. From this evidence, the jury could reasonably have concluded that the mitigating circumstance of youth and domination by another person did not exist.

Pickens also presented evidence that he had corresponded with various young people since his imprisonment. However, the state’s evidence showed that Pickens had once enclosed a pamphlet in a letter to one student soliciting funds for his defense. The jury could well have found that these efforts by Pickens were insincere and self-serving.

In the next issue, the appellant argues that an improper remark made by the prosecutor during opening statement should have resulted in a mistrial. The prosecutor described the victims by age and race:

And when they were through, Wes Noble, a seventy-six year old black man laid dead; Jimmy Scherm, thirty-two year old white man laid dead; Thelma Gunnell, a sixty-two year old grandmother, white woman, lay raped twice, shot in the neck; Jerry Lockridge, twenty-seven year old white man lay shot in the neck. . . .

The appellant claimed the prosecutor’s purpose in referring to the races of the victims was to inflame the jury. He asked for a mistrial or that the jury be admonished. After a discussion with the court, he agreed that an admonition would draw undue attention to the remarks. The prosecutor denied his remarks were intended as inflammatory and he promised to employ no further racial connotations. The court readily agreed the subject should be avoided and denied the mistrial motion.

Racial descriptions are irrelevant in almost every instance in a trial. The race of a victim simply should not be mentioned to the jury unless necessary, but we do not find the remarks here warranted a mistrial. A mistrial is a drastic remedy only to be resorted to when there has been error so prejudicial that justice cannot be served by continuing the trial. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). Since the trial court did not abuse its discretion in denying the mistrial and there was no manifest prejudice to the appellant, we will not reverse. Williams v. State, 294 Ark. 345, 742 S.W.2d 932 (1988).

Two other issues involve the allegation of prosecutorial misconduct. The first involves the prosecutor’s closing argument in which he implied that Pickens had fabricated evidence of an abusive upbringing. Pickens suffered no prejudice since the jury unanimously found that this mitigating circumstance existed.

The second involves an objection made by the state during the testimony of Elaine Phillips, a witness on behalf of Pickens. Mrs. Phillips was a junior high school teacher who told the jury that some of her students had corresponded with Pickens. She had begun to testify about the effect of Pickens’ letters on the students when the state objected, saying Mrs. Phillips’ testimony on that point was irrelevant and such testimony should come from the students themselves. Pickens claims the objection was made in bad faith because Ark. Code Ann. § 5-4-602(4) (1987) allows mitigating evidence to be presented regardless of its admissibility under the rules of evidence in criminal trials. We have held that this statute does not open the way for irrelevant evidence. Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882 (1982). There was a bona fide basis for the prosecutor’s objection, unlike the case of Timmons v. State, 286 Ark. 42, 688 S.W.2d 944 (1985) which is cited by the appellant.

Pickens also presents six evidentiary issues. First, he claims the state should not have been allowed to admit certain evidence from the guilt phase of his first trial at his resentencing proceeding because his counsel at that trial was found ineffective. The Eighth Circuit in Pickens v. Lockhart, supra, did not find counsel ineffective in the guilt phase of the first trial, only in the penalty phase. Therefore it was not error to admit the evidence.

Second, Pickens complains that the state attempted to introduce evidence that he killed Jimmy Scherm, one of the victims who died in the robbery (Pickens had only been found guilty of killing Wes Noble). The basis of Pickens’ argument is that the state introduced the evidence to prove the aggravating circumstance of commission of a prior violent felony. Ark. Code Ann. § 5-4-604(3) (1987). The prosecutor did not argue Scherm’s death to the jury as an aggravating circumstance. The only evidence that Pickens killed Scherm came from the victims’ general testimony of the crime. The state may prove the underlying facts of the murder in the resentencing proceeding. Ruiz v. State, supra.

Third, Pickens presented the testimony of Father Louis Franz who spoke of the good works and self-improvement Pickens had undertaken while in prison. On cross examination, the state asked Father Franz if he had once intervened in a case to prevent the death penalty from being carried out, even though it was against the wishes of the convicted man. The state was referring to Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988) in which Father Franz, as next friend, tried to appeal the death sentence of Ronald Gene Simmons after Simmons waived his appeal. Pickens objected to this reference to the Simmons case, but the trial court allowed the question. The state was attempting to show that Father Franz was so unalterably opposed to the death penalty that he would go to great extremes to keep it from being carried out. Wide latitude is allowed on cross examination to elicit facts impeaching the credibility of a witness and the scope of that examination is largely within the discretion of the trial judge. Alexander v. State, 257 Ark. 343, 516 S.W.2d 368 (1974).

The fourth evidentiary issue also concerns the cross examination of a witness. Pickens presented the testimony of Frank King who testified about prison conditions for death row inmates. On direct, Pickens asked King if death row prisoners were allowed in the general prison population to which King replied no. Some of King’s testimony left the impression that it was inhumane to house death row inmates in a restricted area. On cross, the prosecutor asked King, “You advocate capital murderers having access to the general prison population?” Pickens objected and asked for a mistrial. The question was proper and was responsive to matters elicited on direct examination.

Fifth, Pickens claims that a witness was allowed to mention his juvenile record in Michigan. Dr. Brad Fisher, a psychologist, testified that one of Pickens’ problems as a youth was lack of a structured environment. The state, attempting to show that Pickens had benefit of structure by incarceration in juvenile facilities, asked Dr. Fisher how many times Pickens had been incarcerated. Dr. Fisher replied twice as a juvenile and once as an adult. The crime for which Pickens was incarcerated as a juvenile in Michigan was never mentioned, nor was it argued as an aggravating circumstance. The judge’s decision to allow this line of questioning was correct.

Finally, Pickens claims that certain testimony elicited from his mother left the impression that he had participated in a murder in Michigan. He made no motion to have the testimony stricken, did not ask that the jury be admonished, nor has he shown the testimony was so prejudicial as to warrant a mistrial. Therefore, he cannot obtain reversal on this point. Birchett v. State, 294 Ark. 176, 741 S.W.2d 267 (1987).

Several other issues raised by Pickens have already been decided adversely to him either by this court or the United States Supreme Court. He claims the exclusion of jurors who are unable to impose the death penalty violates his right to a jury composed of a fair cross section of the community. This argument was rejected in Lockhart v. McCree, 476 U.S. 162 (1986). He questions the propriety of the state’s presenting a rebuttal witness and a second closing argument during a sentencing proceeding. In Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987), we held it was proper for the state to have the last closing argument because it has the burden of proving the aggravating circumstances outweigh the mitigating. We did not address the issue of rebuttal testimony, but the same reasoning applies. In order to effectively discharge its burden, the state must be empowered to rebut mitigating evidence. See State v. DePew, 38 Ohio St. 3d 275, 528 N.E.2d 542 (1988), cert. denied,_U.S__, 109 S.Ct. 1099 (1989). Pickens claims it is unconstitutional to empanel a jury for the purpose of sentencing alone; that the state should not be allowed to introduce evidence from the first trial at the resentencing hearing; and that it is not proper to allow the state to present evidence at the resentencing hearing that was not presented at the first trial. These arguments have been rejected by this court. See Ruiz v. State, supra; Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987).

Finally, Pickens claims, as he did in his last case, that there was not sufficient evidence to allow the jury to consider the aggravating circumstance of capital murder committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody. Ark. Code Ann. § 5-4-604(5) (1987). Since the jury did not find that this circumstance existed, Pickens was not prejudiced. Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), cert. denied, 479 U.S. 1101 (1987).

The last issue we reach concerns the constitutionality of Ark. Code Ann. § 16-92-108(2)(b) (1987) which sets a $1,000.00 fee limit for attorneys representing indigents in capital cases. First we should point out that this case did not involve a full trial but a resentencing proceeding. Pickens’ attorney submitted a motion to the trial court asking for a fee of at least $8,480.00. The trial court agreed the statutory limit is unconstitutional and awarded a $1,700.00 fee. Appellant’s counsel appeals because the award is inadequate; the state cross-appeals claiming the $1,000.00 limit should have been observed. Amicus curiae briefs have been filed by the Arkansas Bar Association and by the Arkansas and National Associations of Criminal Defense Lawyers.

In State v. Ruiz, 269 Ark. 331, 602 S.W.2d 625 (1980), we held the attorney fee statute was not a “taking” of an attorney’s property without due process of law. As appellant points out, several jurisdictions that were once in accord with Ruiz have recently changed their positions. See, e.g., Makemson v. Martin County, 491 So.2d 1109 (Fla. 1986), cert. denied, 479 U.S. 1043 (1987); State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816 (1987); Jewell v. Maynard, 383 S.E.2d 536 (W.Va. 1989). Each of these cases involved a lawyer who was appointed by the court to represent an indigent defendant. Appellant’s counsel volunteered his representation in this case; he was not forced to represent Pickens. In fact, he represented Pickens before in the resentencing ordered by the Eighth Circuit. He has made no case for a due process argument.

In addition to his due process argument, appellant claims the statute is unconstitutional because it infringes on the inherent power of the trial court to regulate the practice of law. The legislature does not invade the court’s power by setting a limit on attorney compensation. See Makemson v. Martin County, supra.

Finally, it is argued that the fee limit endangers the appellant’s right to effective assistance of counsel. There is nothing in this case to indicate that the fee limit affected counsel’s representation of the appellant. Counsel quickly pointed out in oral argument that Pickens had received effective assistance in this proceeding. We readily agree that appears to be the case, so that argument must fail.

Whatever the trend may be to hold such fee limits unconstitutional, this is not the case in which we will reconsider the issue. We direct the trial court to reduce counsel’s fee to $1,000.00.

We are required in a death case to compare the crime with those of others receiving the death sentence. We have done so in this case and find the death sentence was appropriate.

We have reviewed all objections decided adversely to the appellant and have found no reversible errors. Ark. R. Sup. Ct. Rule 11(f).

Affirmed on appeal. Reversed on cross-appeal.


text:
    STATE of Arkansas v. Marvin Eugene BROOKS
    CR 89-189
    783 S.W.2d 368
    Supreme Court of Arkansas
    Opinion delivered February 5, 1990

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellant.

      Hurley, Whitwell & Shepherd, by: Stephen R. Cobb, for appellee.
   Darrell Hickman, Justice.

The trial judge, upon learning the circumstances of the forgery charge levied against Marvin Eugene Brooks, decided Brooks should not be convicted of a felony and entered the following order: “Whereupon, the Court over the objection of the State amends the charge to THEFT OF PROPERTY, a misdemeanor....” The state appeals seeking a declaration of error under a statute and rule that permit that procedure. Ark. Code Ann. § 16-91-112(b) (1987); A.R.Cr.P. Rule 36.10(c); Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984).

We deem the question sufficiently important to the administration of justice to warrant review.

The duty of charging an accused with a felony is reserved either to the grand jury or the prosecutor. Ark. Const, amend. 21, § 1. The trial judge encroached upon the prosecutor’s constitutional duties and breached the separation of powers doctrine.

In a similar case, United States v. Edmonson, 792 F.2d 1492 (9th Cir. 1986), cert. denied, 479 U.S. 1037 (1987), a federal judge treated a felony charge as a misdemeanor and the appeals court stated:

[T]he decision whether to prosecute, and the decision as to the charge to be filed, rests in the discretion of the Attorney General or his delegates, the United States Attorneys. The Executive Branch has ‘exclusive and absolute discretion to decide whether to prosecute.’ The discretion to prosecute carries with it the discretion to choose the statute that will be charged. The district court has no power to deny the United States Attorney his prerogative under the Separation of Powers doctrine. (Citations omitted.)

See also Petition of United States, 306 F.2d 737 (9th Cir. 1962); State v. Laury, 397 So.2d 960 (Fla. App. 1981).

Error declared.


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

text:
    ARKANSAS OKLAHOMA GAS CORPORATION v. ARKANSAS PUBLIC SERVICE COMMISSION
    89-150
    783 S.W.2d 350
    Supreme Court of Arkansas
    Opinion delivered February 5, 1990
    [Rehearing denied March 12, 1990.]

      Rose Law Firm, by: Charles W. Baker, for appellant.

      Arthur H. Stuenkel, Ass’t Counsel, for appellee Arkansas Public Service Commission.

      Steve Weaver, Chief Legal Counsel, for amicus curiae Arkansas Dep’t of Pollution Control and Ecology.

      Price, J., not participating.

   Robert H. Dudley, Justice.

Appellant, Arkansas Oklahoma Gas Corp., owns and utilizes two buildings in Fort Smith which contained asbestos insulation. One of the buildings is appellant’s main office building where the insulation was in a mechanical equipment room located in the basement. The other building is a garage. Appellant decided to make renovations in both the mechanical equipment room of the main office and in the garage. Before making those renovations, however, appellant had all of the asbestos removed from each building. Appellant filed an interim rate schedule with appellee and imposed an interim surcharge to recover the costs of removing the asbestos pursuant to Ark. Code Ann. §§ 23-4-501 to-509 (1987). After hearings on the surcharge, appellee, Arkansas Public Service Commission, denied the rate applications and ordered that the money collected from the surcharge be refunded. That decision was appealed to the Court of Appeals which affirmed the commission’s decision. Arkansas Oklahoma Gas Corp. v. Arkansas Public Service Comm’n, 27 Ark. App. 277, 770 S.W.2d 180 (1989). We granted appellant’s petition for review and reverse the commission’s decision.

There is really only one issue raised by this appeal, although appellant has divided it into three points of appeal. The issue is whether the above cited statutes provide for the recovery of the costs associated with the removal of asbestos. We hold that they do.

First, Ark. Code Ann. § 23-4-502 (1987) states in pertinent part:

Any public utility . . . may recover all costs and expenses reasonably incurred by such utility as a direct result of legislative or regulatory requirements relating to the protection of the public health, safety, and the environment ....

Second, 40 C.F.R. § 61.147, a federal regulation promulgated by the Environmental Protection Agency in order to implement the Clean Air Act, 42 U.S.C. §§ 7401-7642, relates “to the protection of the public health, safety, and the environment.” That regulation provides in pertinent part:

Each owner or operator to whom this section applies shall comply with the following procedures to prevent emissions of particulate asbestos material to the outside air:
(a) Remove friable asbestos materials from a facility being demolished or renovated before any wrecking or dismantling that would break up the materials or preclude access to the materials for subsequent removal.

(Emphasis added.)

In determining whether section 61.147 applied to appellant, it is necessary to examine section 61.145(d) which provides that, “If at least 80 linear meters (260 linear feet) of friable asbestos materials on pipes or at least 15 square meters (160 square feet) of friable asbestos materials on other facility components are stripped or removed at a facility being renovated, all the requirements of §§ 61.146 [notice] and 61.147 apply.”

It is not disputed that the material removed from both buildings contained asbestos. Neither is it disputed that the alterations made to each building constituted “renovations” as that term is defined in the regulations. In addition, appellant introduced over eighty (80) photographs showing the pertinent areas of each building, both before and after the asbestos removal process. They show that the amount of asbestos removed from each building met the minimum requirements set forth in 40 C.F.R. § 61.145(d).

The commission, however, found that the asbestos material was not “friable.” Findings of fact by the commission are conclusive if they are supported by substantial evidence. Ark. Code Ann. § 23-2-423 (1987). However, in this case there was no substantial evidence to support the commission’s finding of fact.

“Friable asbestos material means any material containing more than 1 percent asbestos by weight that hand pressure can crumble, pulverize, or reduce to powder when dry.” 40 C.F.R. § 61.147(a). Thus, under federal regulations, the key question in determining friability is whether the asbestos mate rial can be crumbled, pulverized or reduced to powder by hand pressure. Appellee relies upon the testimony of Ralph Sandage, one of appellee’s engineers, in supporting its finding that the material was not friable. However, Sandage never testified that he used the proper test in determining the friability of the material. Instead, he testified the material would not disintegrate upon being touched, pushed, poked, brushed, or bumped and that it came out in a clump and seemed solid; but, the following question and answer were critical on this issue, and show that Sandage did not apply the proper test under the terms of the federal regulation:

Q. Did you try to crumble it or crush it?
A. No, I just pushed — I pushed on — it was a section of a wall in the garage, and I pushed on the asbestos, and it didn’t do anything basically.
To answer your question, I did not attempt to crumble it.

On the other hand, Michael Callan, a witness for appellant, testified directly about the friability of the material in the terms used by the regulation:

A: Friable is defined as being able to be pulverized with hand pressure.
Now, the materials in that room — possibly from even the pictures you can tell that you could scrape them off with your hand and pulverize them. They are the very definition of friability.

Further, Thomas Rimmer, a consultant in the field of industrial hygiene, was retained by appellant to advise in the proper handling of the asbestos material. He testified that removal of the asbestos was the only practical solution and that the expense of partial removal of the asbestos would be much greater in the long run than a one-time complete removal.

Accordingly, we conclude that § 61.147(a) was applicable to appellant and that under that regulation appellant was required to remove the asbestos material before undertaking its renovations. Further, the costs associated with the removal of the asbestos are a direct result of this regulatory requirement and clearly related to the protection of the public health, safety, and the environment as set forth in Ark. Code Ann. § 23-4-502 (1987).

Reversed and remanded to the Public Service Commission for specific findings on the amount of allowable expenses.

Hickman and Hays, JJ., dissent.

Glaze, J., concurs.

Steele Hays, Justice,

dissenting. The Public Service Commission heard disputed testimony on the issue of whether the asbestos was friable and determined that it was not. Under the law, that finding of fact by the Commission is conclusive if supported by substantial evidence. Ark. Code Ann. § 23-2-423 (1987).

The majority opinion dismisses the expert testimony of Ralph Sandage, on whose opinion the Commission relied, by quoting his response to a single question, ignoring entirely the balance of his testimony. The Court of Appeals, in affirming the Public Service Commission in an en banc decision, characterized the Sandage testimony:

An engineer for the PSC staff, Ralph W. Sandage, testified in opposition to the application. He said that there was no detectable level of asbestos found in air samples taken by appellant and, consequently, no danger. He also testified, in essence, that it was the renovation and repair work which necessitated the asbestos removal and that the removal was not a direct result of legislative or regulatory mandate. Sandage testified that some of the asbestos removed by the Company was not necessary at all in connection with the work. He testified that he had visited the renovation sites and had personally observed that the ACM did not disintegrate when touched and that it seemed solid. The witness testified that he had no problem with AOG removing the asbestos but objected to the recovery of expenses therefor under Act 310.

The supplemental abstract summarizes a pertinent part of Sandage’s testimony as follows:

I observed the asbestos material in the mechanical equipment room being tested by one of the contractors bidding on the contract for removal of asbestos. The contractor took an object and punched it into the material. The contractor gouged out a piece of the material. The piece came out as a clump. The asbestos material seemed solid. I observed the contractors testing material on the walls in the garage in the same manner as they had in the mechanical equipment room. I touched the material to determine the consistency. The material was spongy and did not fall apart. If the material at either building was poked, brushed or bumped the material would not disintegrate.

I suggest that testimony is substantial evidence by any standard. The majority has also disregarded the settled rule that it is the province of the Commission to assess the credibility of the witnesses, the reliability of their testimony and the weight to be accorded the evidence presented before the Commission. General Telephone Company of the Southwest v. Arkansas Public Service Commission, 23 Ark. App. 73, 744 S.W.2d 392 (1988); Associated Natural Gas Co. v. Arkansas Public Service Commission, 25 Ark. App. 115, 752 S.W.2d 766 (1988); Arkansas Public Service Commission v. Continental Telephone Co., 262 Ark. 821, 561 S.W.2d 645 (1978):

To establish an absence of substantial evidence to support the decision the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded men could not reach its conclusion, [citation omitted] . . . [T]he question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made.

I submit the appellant has failed to make that demonstration and I respectfully dissent.

Hickman, J., joins this dissent.


author: Robert H. Dudley, Justice.

text:
    Robert C. PHILLS v. STATE of Arkansas
    CR 89-197
    783 S.W.2d 348
    Supreme Court of Arkansas
    Opinion delivered February 5, 1990

      Leon Jamison, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was convicted of rape and kidnapping. There is no merit in either of his points of appeal, and we affirm both convictions.

Appellant’s first argument is that the trial court erred in admitting testimony about a serological examination of his underwear. The short answer to the argument is that there was no testimony whatsoever about a serological examination of appellant’s underwear, nor even whether he wore any. We assume appellant has not confused his underwear with the victim’s semen-stained underwear, which was admitted into evidence without objection, and from which blood typing was obtained. We can only assume that appellant meant to argue that the serological test results of his pants and of his blood sample should not have been admitted into evidence. If that is his intended argument, it has no merit.

With respect to the serological test results on his pants, appellant did not preserve his argument for appeal because there was no objection to the introduction of the test results. Appellant apparently recognizes that no objection was made below on this evidence and argues that it was not necessary for him to renew his objection; however, that argument is fallacious. He never made the original objection about serological test results conducted on his pants.

The transcript reflects that at the time the pants were introduced, appellant’s counsel asked to approach the bench and an “off-the-record discussion” followed. The trial court then stated, “Let the record show that over the objection of the defendant, we will receive State’s Exhibit Numbers 2 [brown coat], 3 [man’s white shirt], 4 [black pair of men’s pants]. . . .” We have often condemned the practice of off-the-record discussions because it is impossible for us to know the basis of the objection. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). Such an objection is clearly inadequate to preserve an argument that the subsequent admission of serological test results, which were conducted on the pants, was error.

Blood was taken from the appellant and typed. The prosecutor asked the crime-lab serologist if she knew appellant’s blood type. Appellant’s counsel objected and asked to approach the bench. The transcript again reflects another “off-the-record” discussion, followed by the trial court stating, “The court’s going to sustain the objection and ask you to lay a better foundation.” A foundation was then laid.

Appellant may be arguing that foundation was inadequate. As in Munnerlyn v. State, 264 Ark. 928, 576 S.W.2d 714 (1979), appellant does not allege that the samples had been tampered with and there is nothing in the record to suggest such a possibility. It is not necessary that every moment from the time evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come into contact with it. It is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. The trial judge did not abuse his discretion in allowing the result of the serological test of appellant’s blood sample.

Appellant’s next argument concerns sufficiency of the evidence. He contends that he was not sufficiently identified, and there was not sufficient evidence of penetration of the victim. There is no merit in either argument.

The victim expressly identified the appellant as her attacker. The testimony of the victim alone is sufficient identification. However, in addition to the victim’s identification, two (2) other witnesses saw appellant with the victim at the time of the crimes, and a policeman caught appellant just as he left the victim. Further, his blood type matched the blood type found in the semen on the victim’s underwear. The identification was sufficient.

With regard to penetration, the victim testified that appellant took off her pants, got on top of her, and “sticks his thing in there,” . . . “he penetrated me.” The language is sufficient evidence of rape. There is no real doubt about the meaning of the testimony.

Affirmed.


author: Steele Hays, Justice.

text:
    Betty MABRY v. Mary McAFEE, Executrix of the Estate of Stella Hunt, Deceased
    89-279
    783 S.W.2d 356
    Supreme Court of Arkansas
    Opinion delivered February 5, 1990

      Phil Stratton and Casey Jones, Ltd., for appellant.

      Tatum & Sullivan, P.A., by: Terry Sullivan, for appellee.
   Steele Hays, Justice.

Appellant Betty Mabry and appellee Mary McAfee are stepsisters. Betty Mabry’s father, Darrell Hunt, and Mary McAfee’s mother, Stella, married years ago when the girls were children.

In March 1977, Darrell and Stella Hunt executed complementary wills leaving the entire estate to the survivor with a provision that if the other spouse predeceased, “then to my children, Betty Mabry and Mary McAfee to be divided equally.” Darrell’s will, dated March 10,1977, nominated Stella to execute his will. Stella’s will, dated March 8,1977, nominated Joe Hunt, Darrell’s brother, to serve as executor.

Darrell Hunt died in August of 1978 and on March 19,1979, Stella executed a codicil to her will nominating Mary McAfee to serve as executor, declaring that “my other child, Betty Mabry, shall be excluded from receiving any of my personal property” and bequeathing all personal property to Mary McAfee.

In May 1988, Stella Hunt died and after her will and codicil were admitted to probate Betty Mabry brought this suit in chancery for specific performance of an alleged agreement between Darrell and Stella Hunt culminating in the execution of reciprocal wills which Stella Hunt had altered by codicil.

Ms. Mabry testified that her parents divorced when she was about ten, that she was raised by her mother in Little Rock, but visited her father and stepmother in Briggsville at least twice a year. She said she was present at several discussions between her father and stepmother as to their plans for disposing of their properties, that everything was to be divided between the two girls. After her father died, Stella sold the home place at Briggsville.

Joe Hunt testified about conversations with Darrell and Stella Hunt regarding their plans, that it was Darrell’s desire that the property be divided between Mary and Betty, that Stella told him they had made their wills and their desire was that the property be split evenly between the girls. He said the lands conveyed to Darrell and Stella as husband and wife were ancestral lands which Darrell had inherited from the Hunt estate. Joe’s wife, Mary, testified that Darrell wanted his property to be shared equally between the two girls, that Stella had talked to her a number of times about their agreement that the property would be equally divided, that she wanted it that way at her death, and that they had made wills leaving everything equally to the girls.

The wife of another of Darrell Hunt’s brothers testified to frequent conversations with Stella, that Stella told her she was going to spend whatever she wanted and when she was gone it would be divided equally between Betty and Mary, the last such conversation with Stella having been two weeks before Stella’s death.

When the plaintiff rested the chancellor remarked that the proof failed to establish an agreement by clear and convincing evidence, and while there may have been an intention to divide the estate equally between the children, he had not heard sufficient evidence to establish an agreement between Darrell and Stella Hunt to honor the wishes of each other and to be bound by them. Intentions, he noted, are subject to change, contracts are not.

Ms. Mabry has appealed, urging that the chancellor erred in refusing to enforce a bilateral contract that resulted in the execution of reciprocal wills by Darrell and Stella Hunt. We are not persuaded the chancellor clearly erred and accordingly we affirm the decree.

While we review chancery cases de novo, we recognize the superior position of the chancellor to weigh issues of credibility and therefore we do not reverse unless such findings are clearly against the preponderance of the evidence. Hackworth v. First National Bank of Crossett, 265 Ark. 668, 580 S.W.2d 465 (1979). ARCP Rule 51.

It is generally true that while an agreement to make irrevocable, reciprocal wills can be inferred from relevant circumstances, the fact that the parties have contemporaneously executed separate wills, reciprocal in terms, is not sufficient in itself to establish a binding contract to make such wills. Barksdale v. Carr, 235 Ark. 578, 361 S.W.2d 550 (1962); James v. Rogers, 224 Ark. 116, 271 S.W.2d 930 (1954). The law has traditionally demanded a relatively high standard of proof of such agreements. Evidence of that requirement can be seen in Act 568 of 1981 [Ark. Code Ann. § 28-24-101 (1987)], providing that agreements to make a will can be established only by express provision in writing or in the will itself. However, the act does not purport to affect agreements made prior to June 17,1981, and has no application here.

Appellant concedes that the law places a heavy burden of proof upon a litigant who alleges a binding contract not to revoke or alter a will. Morris v. Cullipher, 299 Ark. 204, 772 S.W.2d 313 (1989); Barksdale v. Carr, supra; James v. Rogers, supra. Even so, appellant maintains the testimony of the four witnesses noted above was sufficient to meet that burden. But we cannot say the chancellor was compelled to accept that testimony, or was clearly wrong in not finding that a binding agreement existed between the Hunts to leave their wills intact. Ms. Mabry and the witnesses called in her behalf were all related by blood or marriage and their testimony did not have that degree of disinterest which would render it obligatory on the fact finder. Gilbert v. Diversified Graphics, 286 Ark. 261, 691 S.W.2d 162 (1985); Bittle v. Smith, 254 Ark. 123, 591 S.W.2d 815 (1973); Skillern v. Baker, 82 Ark. 86, 100 S.W. 764 (1907).

Even if the plaintiffs proof is taken at face value, it would be difficult to say that the existence of a binding agreement not to change the wills was shown by evidence that was clear and convincing beyond a reasonable doubt. Jensen v. Housley, Administrator, 207 Ark. 742, 182 S.W.2d 758 (1944); Walk v. Barrett, 177 Ark. 265, 6 S.W.2d 310 (1928).

Since we cannot say the chancellor clearly erred, the decree is affirmed.


text:
    Timothy YIELDING and Samuel C. Yielding v. CHRYSLER MOTOR CO., INC.
    89-253
    783 S.W.2d 353
    Supreme Court of Arkansas
    Opinion delivered February 5, 1990

      Gordon & Gordon, P.A., by: Bart F. Virden, for appellants.

      Rose Law Firm, A Professional Association, by: Phillip Carroll, for appellee.
   Steele Hays, Justice.

Sam and Tim Yielding brought this action against Chrysler Motor Co. (Chrysler) and its dealer, Hagan’s Chrysler-Dodge, Inc., (Hagan’s) alleging a defective condition in a Dodge truck which rendered it unreasonably dangerous. After a jury verdict for the plaintiffs the trial court granted a motion by Chrysler for judgment N.O.V. The Yieldings have appealed. We think the trial judge ruled correctly.

In July 1985, Sam Yielding bought a new Dodge D-50 truck from Hagan’s. In November the vehicle was involved in what seems to have been a minor collision with another vehicle. The truck performed satisfactorily until February 1986, when a problem with the reverse gear developed. The truck had by then been driven some 18,000 miles. Hagan’s worked on the vehicle for several days and afterwards the truck would occasionally stall. In May it would not start and was again returned to Hagan’s for repairs.

The truck continued to operate erratically. Yielding’s mother drove the truck on May 23, 1986, and testified that on three occasions it stalled and then “shot forward,” although she had not accelerated. On May 25 Sam and his brother Tim Yielding used the truck to go fishing. While driving on a dirt road, slick from heavy dew, the truck stalled and then “took off like a rocket,” swerving off the road and striking a tree. Tim Yielding described the incident:

I told Sam to give it gas, and he put it to the floor and he held it there for a second, and it finally just took off like a rocket. And when it did, he lost control of it, and it went right off the ditch on the left, no, the right, he went off to the right, and then it jerked it back up on the road. When he did, he just went right straight across the road and hit the tree.

At that point the odometer reading was 26,953. Sam and Tim sued for injuries sustained in the collision and the jury returned a verdict of $109,682., allocating fault seventy percent to Hagan’s, thirty percent to Chrysler.

In reviewing the granting of a judgment n.o.v., as with a directed verdict, we will affirm only if there is no substantial evidence to support the jury verdict. Northside Construction Co. v. Huffman, 287 Ark. 145, 697 S.W.2d 89 (1985). We review the evidence and any reasonable inferences deducible therefrom in the light most favorable to the party against whom the judgment n.o.v. was entered. Lancaster v. Schilling Motors, Inc., 299 Ark. 365, 772 S.W.2d 349 (1989). Substantial evidence must be of sufficient force and character to compel a conclusion one way or another; it must force or induce the mind to pass beyond suspicion or conjecture. Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982).

Under our product liability statute, Ark. Code Ann. § 4-86-102 (1987), a plaintiff must prove that the product as supplied was defective so as to render it unreasonably dangerous and that such defect was the proximate cause of the accident. See Williams v. Smart Chevrolet, 292 Ark. 376, 730 S.W.2d 479 (1987); Higgins v. General Motors Corp., 287 Ark. 390, 699 S.W.2d 74 (1985). It must be shown that the product was in a defective condition at the time it left the hands of the particular seller. Nationwide Rentals Co. v. Carter, 298 Ark. 97, 765 S.W.2d 931 (1989); Cockman v. Welder’s Supply Co., 265 Ark. 612, 580 S.W.2d 455 (1979).

It is not necessary to establish these elements by direct proof; circumstantial evidence will suffice. Nor is it necessary to offer proof beyond a reasonable doubt. However, if direct proof is lacking, a plaintiff must negate other possible causes of the accident by a preponderance of the probabilities. Harrell Motors, Inc. v. Flanery, 272 Ark. 105, 612 S.W.2d 727 (1981).

The evidence in this case focused on a small clamp in the valve body of the transmission, referred to as an E-clip, which was found lying in the oil pan after the collision. There was proof that when an E-clip is not in place it could result in erratic shifting and, depending on which expert was testifying, cause the vehicle to stall, jerk, or lurch.

There was general agreement that the E-clip was not defective in design and that under normal driving conditions an E-clip would not become dislodged. The primary dispute related to whether the E-clip was an incorrect size or had not been properly hardened, or was incorrectly installed in the manufacturing process; or whether the problem was attributable to the repair work performed by Hagan in February and May, or even a combination of causes.

Generally speaking, when a vehicle suddenly goes out of control while being operated, driver error is a likely cause, absent a reliable explanation in the alternative. That factor can be ruled out, however, when the circumstances are such that common experience teaches that the accident would not have occurred in the absence of a defect. That was the situation in Harrell Motors, Inc. v. Flanery, supra, when the van, which was idling in parking gear, suddenly went into reverse and pinned Flanery against a loading dock.

While we cannot say that the circumstances in this case are such that driver error can be excluded, we will agree, for purposes of this discussion, that the testimony negated the likelihood of driver error as a cause of the collision. Appellants’ experts, Larry Pipes and Alton Doughty, testified that a displacement of the E-clip would cause a vehicle to stall, jerk or lurch, characteristics that were consistent, appellants urge, with their description of the truck’s behavior at the time of, and prior to, the collision. While accepting that conclusion, we note that it was by no means clear that either went so far as to say that such condition would cause a vehicle to “take off like a rocket” or to “shoot forward.”

But we cannot agree the evidence established a probability that the E-clip was defective when the truck left the control of the appellee, an essential constituent of proof required under Ark. Code Ann. § 4-86-102 (1987). See Mixon v. Chrysler Motor Corp., 281 Ark. 202, 663 S.W.2d 713 (1984); Cockman v. Welder’s Supply Co., 265 Ark. 612, 580 S.W.2d 455 (1979). Appellants produced substantial evidence that the accident itself would not have caused the E-clip to dislodge and, hence, there was circumstantial evidence of liability on the part of the Hagan’s or Chrysler, or both. There was evidence that Hagan’s had disassembled the transmission after the truck would not go into reverse and from the testimony of James Beavers, Hagan’s mechanic, the jury could have concluded the E-clip had been dislodged or alfected by the transmission work. However, to attribute any liability to Chrysler, it was necessary to show that the product was defective when it left Chrysler’s control — that the clip was flawed in some manner and functioned improperly because of that defect or in conjunction with the work done on the truck by Hagan’s. We find no substantial evidence to support that conclusion.

Appellants assert that Hagan’s did not disassemble the transmission, a circumstance which would strengthen the probability that the E-clip was defective when the vehicle left Chrysler. However, we are unable to adopt that view of the evidence. James Beavers testified, “I pulled the pan off, pulled the transmission out and I disassembled it and put in the necessary parts to fix it.” (Appendix, p. 124). Nor do the appellants take issue with that. Tim Yielding testified, “[Hagan’s] took out the transmission and put in all new parts, is what they told me,” (Supp. Appendix, p. 2) and “they had the transmission out, tore apart and scattered over forty acres.” (Supp. Appendix p. 3.) Moreover, Beavers testified that while the transmission was disassembled, he visually inspected the E-clip and pressed it to be certain it was seated properly.

The first sign of any malfunction attributable to a dislodged E-clip did not develop until after 18,000 miles and the evidence presented showed that had there been a defect in the clip, it would have been exhibited before then. Appellants’ expert theorized how a defective clip might have stayed in place that long, but stated that he would not have expected a defective clip to stay on for 18,000 miles. A similar statement was made by Alton Doughty, a mechanic who had first looked at the truck and found the E-clip dislodged. While Doughty admitted that he had stated in his deposition that it was possible, there was still nothing in his testimony, nor in the testimony of appellants’ expert that would place a finding by the jury on this point beyond one of speculation or conjecture.

Finally, none of appellants’ witnesses had examined the E-clip to see if it was in fact defective, although it was conceded that such tests could have been readily conducted. The appellee presented testimony by an expert who had examined both the clip and its mounting and found them free of any defect. He showed the clip in question, as well as a new one, to the jury and demonstrated how both fit securely on the mounting. There was nothing shown in cross-examination of the witness that exposed any weakness in this testimony.

When reviewing this evidence and any reasonable inferences deducible therefrom in the light most favorable to the appellants, we cannot say there is evidence to induce the mind to pass beyond conjecture as to liability for a defect on the part of Chrysler. As there was no proof against Chrysler on the issue of a defect, it is not necessary to consider the question of proximate cause.

The judgment is affirmed.

       Hagan’s initially appealed as well, but settled its dispute with the Yieldings and dropped its appeal.


author: David Newbern, Justice.

text:
    Charles B. GERMER, et al. v. MISSOURI PORTLAND CEMENT COMPANY
    89-282
    783 S.W.2d 359
    Supreme Court of Arkansas
    Opinion delivered February 5, 1990

      Catlett, Stubblefield, Bonds & Fleming, by: Victor A. Fleming, for appellants.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Joseph F. Kolb and Richard C. Kalkbrenner, for appellee.
   David Newbern, Justice.

This is an appeal from a decree which foreclosed a mortgage and granted a judgment on an open account against a corporate defendant. In addition, the decree enforced an agreement which guaranteed a portion of the corporation’s debt. Alice Leigh owned 87 per cent of Big Rock, Inc., doing business as Criss & Shaver Readimix Concrete. Mrs. Leigh’s son, Charles Germer, was president and a director of the corporation. Big Rock purchased cement from Missouri Portland Cement Company (MP). MP’s credit manager testified that, in February, 1984, Big Rock owed MP some $295,000. On March 1, 1984, Leigh and Germer executed a personal guaranty for an $80,000 line of credit for Big Rock with MP. In 1986 Germer, without the knowledge of Leigh, executed a promissory note on behalf of himself and Big Rock to MP for $356,797. Mrs. Leigh died. Germer contended that the subsequent note was a significant alteration of the obligation so that neither he nor Leigh’s estate remained liable on the guaranty. It was also contended that the Wingo Act should preclude MP from bringing action in an Arkansas court because MP had not qualified under the act until shortly before the trial. We agree with the chancellor’s conclusion that the guaranty was not revoked. We hold that the Wingo Act was inapplicable. The decision is affirmed.

1. The guaranty

Germer and Leigh’s estate argue that it was clear error for the trial court to have accepted the testimony of MP’s credit manager to the effect that the amount of the 1986 note was approximately $80,000 less than the entire indebtedness of Big Rock to MP, and thus to have accepted the notion that the note was not intended as a “novation” or substitution for the guaranty. The argument is based on inconsistency between the testimony and a document showing the indebtedness as of August 31,1986. The suggestion is that the credit manager lied. While we may reverse upon finding a factual determination by a chancellor was clearly erroneous, our review defers to the chancellor’s evaluation of the credibility of the witnesses. Lytle v. Lytle, 301 Ark. 61, 781 S.W.2d 476 (1989), Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984).

The guarantee agreement on which the chancellor held both Germer and Leigh’s estate liable provided, in part: “Guarantors, without affecting their liability hereunder in any respect, consent to and waive notice of all changes of terms, the withdrawal or extension of credit or time to pay, the release of the whole or any part of the indebtedness. ...”

A material alteration in an obligation, made without the assent of the guarantor, may discharge the guarantor. Inter-Sport v. Wilson, 281 Ark. 56, 661 S.W.2d 367 (1983); Spears v. El Dorado Foundry, 242 Ark. 590, 414 S.W.2d 622 (1967). If, however, the guaranty agreement specifically provides it will not be affected by renewals or extensions of the obligation guaranteed, that provision will be honored. Gentry v. 1st American Nat. Bank, 264 Ark. 796, 575 S.W.2d 152 (1979).

The provision in the agreement consenting to “extension of credit” without affecting liability on the guarantee is clear, and we have been given no reason to hold it is less enforceable than the provision in the Gentry case with respect to renewals or extensions.

2. The Wingo Act

When the obligations in question here were incurred, Ark. Stat. Ann. § 64-1202 (1947) provided, as a penalty in addition to a prescribed fine:

any foreign corporation which shall fail or refuse to file its articles of incorporation or certificate as aforesaid, cannot make any contract in the State which can be enforced by it either in law or in equity, and the complying with the provisions of this act after the date of any such contract or after any suit is instituted thereon, shall in no way validate said contract.

The trial court found that Big Rock, Germer, and Leigh had waived the provisions of the act by their continuous course of business with MP. We find no authority for such a holding, but we conclude the result was correct for other reasons.

The penalty portion of the act, by its terms, applies only when it can be shown the foreign corporation was “doing business” in Arkansas. In addition, the registration requirement may not be enforced by applying the penalty to a transaction in interstate commerce. U.S. Const. art. I, § 8, cl. 3. See North American Phillips Commercial Electronics Corp. v. Gaytri Corp., 291 Ark. 11, 722 S.W.2d 270 (1987). Although the testimony showed that MP had a salesman residing in Arkansas, its business was done through a terminal in Memphis, Tennessee. Big Rock either picked up the cement in Memphis or the cement was delivered to Big Rock in Arkansas from the Memphis terminal by common carrier.

While we have strong doubts whether even the threshold test of “doing business” in Arkansas was met in this case, we need not decide that question because the transactions between MP and Big Rock so clearly constituted interstate commerce. MP is a Delaware Corporation headquartered in Iowa. It sold cement to Big Rock through an account agent at its Memphis office. “A contract calling for a transaction wholly in interstate commerce is enforceable in Arkansas courts by a corporation not qualified [under the statute] to do business in Arkansas.” Goode v. Universal Plastics, Inc., 247 Ark. 442, 445 S.W.2d 893 (1969). The “indispensable element” of importation of goods from one state into another described in Furst v. Brewster, 282 U.S. 493 (1931), is patent in this case, and the “essential character” of the transactions was interstate. Uncle Ben’s, Inc. v. Crowell, 482 F. Supp. 1149 (E.D. Ark. 1980).

In Independence County v. Tad Screen Advertising Co., 199 Ark. 205, 133 S.W.2d 1 (1939), we held that the main purpose of a contract was to screen films at an Arkansas theater. Thus the contract was intrastate despite the fact that the films were shipped into Arkansas by a foreign corporation which continued to own them. There was no sale or purchase of the films. We held that the interstate shipment of the films was only incidental to this otherwise intrastate activity. Application of the penalty provision of the act was thus not prohibited by the Commerce Clause. Here we are asked to hold that the main purpose of the transactions between MP and Big Rock was to use cement in Arkansas. The analogy might be apt but for the fact that MP did not retain title to the cement. The transactions in this case had as their main purpose the interstate sale and delivery of cement rather than the use of it by Big Rock in this state.

Affirmed.