author: Andree Layton Roaf, Justice.

text:
    COLONIA UNDERWRITERS INSURANCE COMPANY v. Darrell RICHARDSON
    96-330
    924 S.W.2d 808
    Supreme Court of Arkansas
    Opinion delivered July 8, 1996

      Huckabay, Munson, Rowlett & Tilley, P.A., by: John E. Moore and Julia L. Busjield, for appellant.

      Gregg, Hart & Farris, by: Phillip Farris, for appellee.
   Andree Layton Roaf, Justice.

This case involves an interpretation of the underinsured motorist coverage statute. Ark. Code Ann. § 23-89-209 (Supp. 1995). Appellee Darrell Richardson was involved in an accident with an underinsured vehicle. At the time of the accident, Richardson was insured by appellant Colonia Underwriters Insurance Company (Colonia). Richardson filed suit against Colonia alleging that he was entided to underinsured motorist coverage in the amount of $25,000. The trial court granted summary judgment in favor of Richardson on the basis that he was entided to underinsured motorist coverage by operation of law. We reverse and remand.

The relevant facts in the instant case are not in dispute. On July 13, 1992, Richardson purchased an insurance policy for a 1982 Oldsmobile Cutlass from Colonia. At that time, he rejected under-insured motorist coverage by signing the following statement:

I have had Underinsured Motorist Coverage explained to me and fully understand it. I reject Underinsured Motorist Coverage and understand that my policy will not contain this coverage when issued or renewed. However, I may request to add the coverage later.

Richardson was issued a policy with a term from July 13, 1992, to July 13, 1993. On November 13, 1992, Colonia issued two General Change Endorsements showing that his policy had been amended to add insurance on a 1991 Isuzu Trooper and a 1982 Datsun truck. The 1982 Oldsmobile remained on the policy after the addition of the two new vehicles.

On January 13, 1993, Richardson was injured when he was struck by a truck owned by Big “M,” Inc. The liability carrier for Big “M” ultimately paid Richardson $105,000, the total limits of its policy. Richardson, however, claimed bodily injury and damages in excess of Big “M” ’s insurance coverage. In March 1994, Richardson made demand upon Colonia to pay the underinsured motorist coverage; Colonia refused payment. Richardson had never been charged nor had he ever paid a premium for underinsured motorist coverage.

Richardson filed the present action against Colonia on August 19, 1994; he sought the policy limit of $25,000, a 12% penalty, interest from the date of demand, and attorney’s fees. Colonia admitted that Richardson made demand for the payment of under-insured motorist coverage; however, Colonia contended that Richardson specifically rejected underinsured motorist coverage.

Subsequently, Colonia moved for summary judgment on the basis that Richardson rejected underinsured motorist coverage and, pursuant to Ark. Code Ann. § 23-89-209(2), that rejection was effective as to substitute vehicles added to his policy. In his response to Colonia’s motion, Richardson asserted that any time a new vehicle is insured, a new policy is issued. Richardson asserted that he was not offered underinsured motorist coverage either at the time that the 1991 Isuzu Trooper was insured or at the time that a 1985 Nissan truck was insured. In addition, Richardson moved for partial summary judgment on the issue of whether underinsured motorist coverage for the 1991 Isuzu Trooper should be implied as a matter of law.

On July 3, 1995, the trial court entered an order granting summary judgment in favor of Richardson. The trial court concluded that the instant case involved the addition of a vehicle to an existing policy rather than the substitution of vehicles on a policy. The trial court further concluded that Richardson’s rejection of underinsured motorist coverage was not broad enough to include rejection of underinsured motorist coverage for an amendment to the policy by the addition of another vehicle. The trial court noted that the contract language simply rejected coverage for the policy when issued or renewed; the language was not broad enough to include a substituted or amended policy. Finally, the trial court found that because Richardson was not given the opportunity to reject in writing underinsured motorist coverage on the 1991 Isuzu Trooper and the 1985 Nissan truck, such coverage was implied by operation of law.

A jury trial was held regarding the issue of damages, and the jury returned a verdict in favor of Richardson in the amount of $25,000. On December 7, 1995, judgment was entered, and Richardson was awarded $25,000, prejudgment interest from the date of demand, 12% penalty, attorney’s fees, costs, and expenses. On appeal, Colonia contends that the trial court erred in finding that underinsured motorist coverage was implied as a matter of law and in awarding prejudgment interest.

The standard for review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entided to judgment as a matter of law. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996). We view all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. However, where the operative facts of the case are undisputed, we simply determine on appeal whether the appellee was entided to summary judgment as a matter of law. Hertlein v. St. Paul Fire and Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996).

Richardson obtained the initial insurance policy from Colonia in July 1992, the policy was amended in November 1992, and he was injured in January 1993. During that period, Ark. Code Ann. § 23-89-209(a), Underinsured motorist coverage, provided in part:

Every insurer writing automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicles in this state shall provide underinsured motorist coverage unless rejected in writing by a named insured. . . . After a named insured or applicant for insurance rejects underinsured motorist coverage, the insurer or any of its affiliates shall not be required to notify any insured in any renewal, reinstatement, substitute, amended or replacement policy as to the availability of such coverage.

(Emphasis supplied.) We have recognized that this statute requires insurers to provide underinsured motorist coverage to the named insured unless such coverage is rejected in writing by the insured. Shelter Mutual Ins. Co. v. Irvin, 309 Ark. 331, 831 S.W.2d 135 (1992). It is clear that Richardson rejected underinsured motorist coverage on July 13, 1992. Thus, the question presented in the instant case is whether Colonia was required to notify Richardson of the availability of underinsured motorist coverage when he added vehicles to his policy in November 1992.

We have not previously considered this issue; however, we have addressed comparable issues regarding uninsured motorist coverage and no-fault coverage. In Lucky v. Equity Mutual Ins. Co., 259 Ark. 846, 537 S.W.2d 160 (1976), the appellant signed a rejection of uninsured motorist coverage, and he was issued liability insurance on his 1960 Ford truck by the appellee. The appellant continued to renew the policy; however, over five years later a 1964 Ford truck was substituted for the 1960 Ford truck in the original policy. We held that when the parties to an insurance contract agree to a policy endorsement which has the effect of substituting coverage of one automobile for that of another, the transaction constitutes new insurance “delivered or issued for delivery in this State” within the meaning of the uninsured motorist statute. See Ark. Code Ann. § 23-89-403 (Supp. 1995); American Nat’l Property & Casualty Co. v. Ellis, 315 Ark. 524, 868 S.W.2d 469 (1994).

We have recognized that the effect of the decision in Lucky was to require insurers to offer uninsured motorist coverage to the insured upon the event of substituting vehicles even though the insured had previously rejected such coverage. See Ellis, supra. At the time Lucky was decided, the uninsured motorist statute provided in part:

[T]he coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.

See Ark. Stat. Ann. § 66-4003 (Repl. 1966). We noted that to accept the construction suggested by the appellee would permit one rejection to be effective for any and every automobile that might be substituted by the insured for the original vehicle. Lucky, supra.

In American Nat’l Property & Casualty Co. v. Ellis, 315 Ark. 524, 868 S.W.2d 469 (1994), we addressed the effect of an amendment to the uninsured motorist statute. The statute was amended to provide in part:

[T]he coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage, and this rejection shall continue until withdrawn in writing by the insured.

(Emphasis supplied.) See Ark. Code Ann. § 23-89-403 (b) (Repl. 1992). We held that the amendment did not change the law. We observed that if the General Assembly intended to, in effect, overrule the Lucky decision, it failed to do so because it said nothing which affected the holding of the case. We stated that we were certain that the General Assembly did not intend that rejection of uninsured motorist coverage in one insurance contract be binding in a subsequent one.

Similarly, we have held that a declaration of automobile insurance issued with a substituted vehicle also requires a second rejection of no-fault insurance under Ark. Code Ann. § 23-89-203 (Repl. 1992). Fimpel v. State Auto. Mut. Ins. Co., 322 Ark. 797, 911 S.W.2d 950 (1995). Section 23-89-203 provided for rejection of no-fault coverage by the insured, and it provided:

(a) The named insured shall have the right to reject in writing all or any one (1) or more of the coverages enumerated in § 23-89-202.
(b) After the rejection, unless the named insured requests coverage in writing, the coverage need not be provided in, nor supplemental to, a renewal policy.

Although uninsured motorist coverage and no-fault coverage had different purposes, we recognized that both are mandated coverages which must be offered to prospective insureds. Finally, we noted that the Lucky, supra, and Ellis, supra, cases require a rejection of the mandatory coverage when a new declaration occurs which includes a substituted automobile, and we could “see no reason why that construction should not apply to a second category of mandatory automobile insurance — in this case, no-fault coverage — as well.”

In reaching our decision in Fimpel, supra, we recognized that the General Assembly amended Ark. Code Ann. § 23-89-203(b) to provide in part:

(b) After a named insured or applicant for insurance rejects this coverage, the insurer or any of its affiliates shall not be required to notify any insured in any renewal, reinstatement, substitute, amended, or replacement policy as to the availability of such coverage.

See Act 527 of 1995. We concluded that it would be patently unfair to sanction a legislative clarification of a preexisting statute when we had previously construed the effect of mandatory coverage on substituted vehicles contrary to the purported clarification. This language, however, is nearly identical to the language found in the underinsured motorist coverage statute at issue in the instant case.

Further, an Arkansas federal district court and the Eighth Circuit Court of Appeals have addressed a similar issue involving the underinsured motorist statute. See Warford v. State Farm Mut. Ins. Co., 69 F.3d 860 (8th Cir. 1995); Warford v. State Farm Mut. Ins. Co., 871 F.Supp. 1085 (W.D.Ark. 1994). According to the district court, Warford was involved in an automobile accident in April 1992, and the accident was proximately caused by the negligence of the other driver. At the time of the accident, Warford had automobile insurance issued by State Farm Mutual Insurance Company (State Farm). The limits of the tortfeasor’s liability coverage had been exhausted, and Warford made demand upon State Farm for under-insured motorist coverage in the amount of $50,000 contending that such coverage was implied by law in view of State Farm’s failure to make such insurance available.

Warford had first obtained insurance in Arkansas on September 2, 1987, for a 1976 AMC Hornet. Warford signed a form which provided in part: “I have been offered Underinsured Motor Vehicle Coverage for bodily injury, with limits up to my automobile bodily injury liability limits, and I reject the coverage entirely.” In February 1988, the insurance on the 1976 AMC Hornet was transferred to a 1973 Chevrolet Impala. In August 1988, the insurance coverage on the Impala was transferred to a 1988 Honda Accord. It was undisputed that Warford’s Arkansas policy did not contain underinsured motorist coverage and that he had not paid premiums for the coverage.

According to the district court, Warford asserted that the substitution of coverage constituted new insurance under Arkansas case law, and since she did not reject underinsured motorist coverage at the time of the substitution, it was implied by operation of law. State Farm contended that the substitution of the 1973 Impala and then the 1988 Honda for the 1976 Hornet constituted either a “substitute,” “replacement,” or “amended policy” within the meaning of Ark. Code Ann. § 23-89-203 and required no new rejection.

In concluding that no underinsured motorist coverage was implied by operation of law, the district court stated that the language of the uninsured motorist statute construed in Lucky, supra, and Ellis, supra, differed significantly from that contained in the underinsured motorist statute. The court stated that it did not believe the holding in Lucky and Ellis extended to the underinsured motorist statute. Finally, the court held that the rejection of under-insured motorist coverage obtained from Warford in 1987 was effective and that a second or subsequent rejection was not required when a vehicle was substituted for the original vehicle.

On appeal, the Eighth Circuit affirmed the decision of the district court. Warford v. State Farm Mut. Ins. Co., 69 F.3d 860 (8th Cir. 1995). The court concluded that the Arkansas Supreme Court would hold that State Farm did not have a duty to offer Warford underinsured motorist coverage in 1988 after she rejected coverage in writing in 1987. The court further stated that the 1991 amendments to the statute expressly provide that a written rejection is effective as to “any renewal, reinstatement, substitute, amended or replacement policy,” and the amendments make clear that State Farm had no duty to offer Warford underinsured motorist coverage after she rejected coverage in writing in 1987.

In the instant case, the trial court relied upon Lucky v. Equity Mutual Ins. Co., 259 Ark. 846, 537 S.W.2d 160 (1976), and American Nat’l Property & Casualty Co. v. Ellis, 315 Ark. 524, 868 S.W.2d 469 (1994), to conclude that Richardson’s existing automobile liability insurance would not have applied to the 1991 Isuzu Trooper without insurance having been “delivered or issued in this state.” The court found that Richardson was not given the opportunity to reject in writing underinsured motorist coverage when the vehicle was added and that the rejection that Richardson signed was not broad enough to cover and include rejection of coverage for an amendment to the contract by the addition of another vehicle. The trial court stated that the rejection “merely rejects coverage for the policy when issued or renewed.” The trial court further found that because Colonia failed to give Richardson the opportunity to purchase, or reject in writing, underinsured motorist coverage on the 1991 Isuzu Trooper, such coverage would be implied by operation of law. The trial court stated that Colonia could not rely on the statute to expand the contractual language of Richardson’s rejection to include a substituted, amended, or replacement policy.

We hold, however, that the underinsured motorist coverage statute at issue makes clear that “[a]fter a named insured or applicant for insurance rejects underinsured motorist coverage, the insurer or any of its affiliates shall not be required to notify any insured in any renewal, reinstatement, substitute, amended or replacement policy as to the availability of such coverage.” Ark. Code Ann. § 23-89-209. In the instant case, Richardson amended his policy to add two vehicles after he rejected underinsured motorist coverage. The Lucky, supra, and Ellis, supra, cases are simply not controlling because the uninsured motorist coverage statute contained different and much narrower language.

In addition, the trial judge mistakenly relied upon his conclusion that the rejection that Richardson signed was not broad enough to include rejection of coverage for an amendment to the contract by the addition of another vehicle. The language in the contract is simply not relevant. In order for underinsured motorist coverage to be implied by operation of law, Colonia must fail to comply with the underinsured motorist coverage statute. See Shelter Mutual Ins. Co. v. Irvin, supra. The trial court seems to have concluded that coverage may be implied by operation of law even if Colonia is in compliance with the statute. The court, however, cannot force upon the insurance company something that is not present in the statute. See Ross v. United Servs. Auto. Ass’n, 320 Ark. 604, 899 S.W.2d 53 (1995).

The underinsured motorist coverage statute at issue provides that after a named insured rejects coverage, the insurer is not required to notify the insured in any amended policy as to the availability of such coverage. Richardson rejected underinsured motorist coverage when he purchased his policy, and Colonia was not required to notify him as to the availability of such coverage when his policy was amended. Therefore, there is no basis for underinsured motorist coverage to be implied by operation of law. The summary judgment in favor of Richardson is reversed; Colonia’s motion for summary judgment should have been granted.

For its second point on appeal, Colonia asserts, in the alternative, that the trial court erred in awarding prejudgment interest. However, because our resolution of Colonia’s first point on appeal disposes of the case, it is not necessary to address the second point.

Reversed and remanded for entry of an order consistent with this opinion.

Dudley, J., not participating.


source: Caselaw Access Project

author: ANDREE LAYTON Roaf, Justice.

license: Public Domain

text:
    Mary DILLON, Kathleen Inmon, and Dorothy Johnson v. TWIN CITY BANK
    95-713
    924 S.W.2d 802
    Supreme Court of Arkansas
    Opinion delivered July 8, 1996

      Ogles Law Firm, P.A., by: John Ogles and Hubert W. Alexander, for appellants.

      Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Susan Gordon Gunter and Graham F. Sloan, for appellee.
   ANDREE LAYTON Roaf, Justice.

Appellants Kathleen Inmon and Mary Dillon are mother and daughter respectively. Dorothy Johnson is Inmon’s aunt. Appellee Twin City Bank, a creditor of Inmon, sued Inmon, Dillon, and Johnson for the alleged fraudulent conveyance of certain property. Inmon and Dillon appeal from the chancellor’s ruling that Inmon made fraudulent transfers with the actual intent to hinder, delay, or defraud Twin City Bank. The final decree entered by the chancellor purportedly transferred real property that was involved in the dispute, 7500 Toltec, from Johnson to Inmon. However, after the chancellor made her Findings of Fact and Conclusions of Law, but prior to her entering the final decree, Johnson deeded the real property to Inmon. We hold that this appeal is moot and dismiss.

An in-depth discussion of the underlying facts of this case is not necessary, since the appeal is moot. In her Findings of Fact and Conclusions of Law, the chancellor determined that cash funds used to purchase two pieces of real property, 13 Woodbriar and 7500 Toltec, were paid by Inmon. The chancellor then determined that 13 Woodbriar was tided in Dillon’s name when it was purchased in April 1991. She found that Inmon made deposits in an account in Dillon’s name and signed checks with Dillon’s name for the construction of 13 Woodbriar. The chancellor found that all cash deposits in Dillon’s account and all cash payments for 13 Woodbriar were from funds from the sale of Inmon’s father’s property and Inmon’s alimony. She determined that the purchase of the lot and the construction costs of 13 Woodbriar were fraudulent conveyances from Inmon to Dillon. The chancellor found that all proceeds from the sale of 13 Woodbriar were placed in an account in the name of Dillon. The chancellor found that Inmon purchased 7500 Toltec and had it tided in Dillon’s name. She found that funds used to construct Toltec came from the account in Dillon’s name that mainly contained the deposit from the sale of 13 Woodbriar. The chancellor concluded that Inmon was the true and equitable owner of 7500 Toltec. The chancellor found that Dillon transferred 7500 Toltec to Johnson and ruled that the deed of 7500 Toltec from Dillon to Johnson should be set aside as a fraudulent conveyance. In sum, the chancellor determined that Inmon fraudulendy conveyed funds to Dillon by making deposits in Dillon’s checking accounts and purchasing property in her name. She found that the funds were used to build 13 Woodbriar, and the money from the sale of Woodbriar was used in the construction of 7500 Toltec. The chancellor directed Twin City Bank to prepare a precedent regarding the tide and ownership of 7500 Toltec and send it to appellants for approval prior to presenting it to the court for entry. Following the entry of the Findings of Fact and Conclusions of Law, Johnson transferred 7500 Toltec to Inmon by quitclaim deed. The deed was recorded on November 15, 1994.

The decree from which appellants appeal was entered on December 16, 1994. The decree states that neither Dillon nor Johnson hold a legal or equitable interest in 7500 Toltec. The decree states that it operates to pass title of the property to Inmon. However, Johnson voluntarily conveyed 7500 Toltec to Inmon by quitclaim deed prior to the decree being entered. Therefore, this case is moot.

A case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Arkansas Intercollegiate Conference v. Parnham, 309 Ark. 170, 174, 828 S.W.2d 828, 831 (1992). As a general rule, this court does not address moot issues. Leonards v. E.A. Martin Machinery Co., 321 Ark. 239, 900 S.W.2d 546 (1995); Johnson v. State, 319 Ark. 3, 888 S.W.2d 661 (1994). There are some exceptions to the rule that this court does not address moot issues, such as cases which are capable of repetition yet evade review, see Nathaniel v. Forrest City School Dist., 300 Ark. 513, 780 S.W.2d 539 (1989), and cases involving the consideration of public interest and prevention of future litigation, see Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990), but these exceptions do not apply to the present case.

Thomas v. Arkansas Board of Correction, 324 Ark. 6, 918 S.W.2d 156 (1996). In the present case, the ultimate outcome of the proceedings below, as decreed by the chancellor, was that 7500 Toltec was to be transferred to Inmon. At the time the decree was entered, Johnson already had deeded 7500 Toltec to Inmon. Therefore, any judgment rendered would have no practical legal effect upon any existing controversy. Johnson’s voluntary transfer of 7500 Toltec to Inmon and Inmon’s acceptance are inconsistent with a subsequent appeal directly related to the transfer of the property to Inmon. See Shepherd v. State Auto Property & Casualty Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993).

Appellants did not respond in their reply brief to Twin City Bank’s argument that the appeal is moot. However, appellants previously responded to Twin City Bank’s motion to dismiss the appeal based on mootness. In so doing, appellant Dillon asserted that the case was not moot as to her, because she was not involved in the transfer of 7500 Toltec from Johnson to Inmon. Nevertheless, the property was transferred to Inmon, which was what the chancery court decreed, and any decision by this court would have no legal effect on any existing controversy. Any separate action that Dillon might have against Johnson and Inmon based upon Johnson’s transferring the property back to Inmon is not presently before this court and is not cause for this court to reach the merits of this appeal. See Pennington v. Pennington, 315 Ark. 479, 868 S.W.2d 460 (1994).

Appeal dismissed.

DUDLEY and Corbin, JJ., not participating.

       From Inmon’s counsel’s statement at a hearing prior to the entry of the decree, it appears that Johnson deeded the property to Inmon because the parties were concerned about Johnson’s age and health.


author: ANDREE Layton Roaf, Justice.

text:
    Everett L. KING v. STATE of Arkansas
    CR 96-165
    925 S.W.2d 159
    Supreme Court of Arkansas
    Opinion delivered July 8, 1996

      John R. Hudson, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate, for appellee.
   ANDREE Layton Roaf, Justice.

Everett L. King was convicted of possession of a controlled substance with intent to deliver and delivery of a controlled substance. He was sentenced to 36 years imprisonment. This court previously affirmed that conviction on direct appeal. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993). However, we reversed the denial of King’s subsequent Rule 37 petition challenging his sentence. We held that the trial court erred in allowing King’s former counsel to remain in the courtroom throughout the Rule 37 hearing after King had invoked A.R.E. Rule 615; King had alleged numerous ineffective assistance of counsel claims. We specifically stated that King was entitled to a new Rule 37 hearing. King v. State, 322 Ark. 51, 907 S.W.2d 127 (1995). On remand, the trial court again denied King’s petition. King appeals from this second denial of his Rule 37 petition.

King argues on appeal that: (1) the trial court erred by entering the order summarily denying his petition without conducting a new Rule 37 hearing as directed by this court; (2) the trial court was without jurisdiction to enter this order because he was outside of Washington County when he prepared the order; and (3) the criminal justice coordinator erred in refusing to permit King’s request for a writ of mandamus to be considered by this court. We hold that King’s abstract is flagrantly deficient in violation of Ark. Sup. Ct. R. 4-2 (a) (6), and we affirm.

The following is a verbatim reproduction of the abstract submitted by King’s counsel:

MANDATE
(Tr. 3)
SUPREME COURT OF ARKANSAS OPINION
(Tr. 4-9)
CERTIFICATION OF CLERK
(Tr. 10)
TRIAL COURT ORDER
(Tr. 11-12)
LETTER FROM SUPREME COURT COORDINATOR DENYING PETITIONER’S REQUEST FOR WRIT OF MANDAMUS
(Tr. 13)
NOTICE OF APPEAL AND DESIGNATION OF RECORD
(Tr. 14)
CERTIFICATE OF SERVICE
(Tr. 15)
CERTIFICATE OF COURT REPORTER
(Tr. 16)
CERTIFICATE OF CIRCUIT CLERK
(Tr. 17)

We have often held that a summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. D. Hawkins, Inc. v. Schumacher, 322 Ark. 437, 909 S.W.2d 640 (1995). This court does not presume error simply because an appeal is made. Mayo v. State, 324 Ark. 322, 920 S.W.2d 843 (1996). It is the appellant’s burden to produce a record sufficient to demonstrate error, and the record on appeal is confined to that which is abstracted. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994). The reason underlying our abstracting rule is basic — there is only one transcript, there are seven judges on this court, and it is impossible for each of the seven judges to examine the one transcript. Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995). We will not explore the record for prejudicial error, except in death or life-imprisonment cases where a motion, objection, or request on the point at issue was made before the trial judge. Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993).

King’s failure to abstract the order appealed from and other critical documents precludes this court from considering issues concerning them Jackson v. State, 316 Ark. 509, 872 S.W.2d 400 (1994).

Affirmed.

Dudley, J., not participating.


author: Per Curiam.

text:
    Lamont BOWDEN v. STATE of Arkansas
    CR 95-1258
    925 S.W.2d 158
    Supreme Court of Arkansas
    Opinion delivered July 8, 1996

      Ronald Carey Nichols, for appellant.
    No response.
   Per Curiam.

Defense counsel, Ronald Carey Nichols, appeared on July 1, 1996, in response to this court’s order to show cause why he should not be held in contempt of this court’s four prior orders to file appellant’s brief. Upon his appearance, Mr. Nichols concedes he had previously failed to file appellant’s brief, but had done so on Friday, June 28, 1996. He asserted his failure to file a timely brief was not willful.

Mr. Nichols offered what he called “extenuating circumstances” concerning the hospitalization of an infant daughter, who has cerebral palsy and was in a live-or-die status during this same period when appellant’s brief was due. We consider those statements in mitigation of Nichols’ failure to file a timely brief, and if Mr. Nichols files an affidavit formally verifying those statements, we direct no further action is necessary.


author: PER CURIAM.

text:
    Keith Cox HILSTROM v. STATE of Arkansas
    CR 96-563
    923 S.W.2d 874
    Supreme Court of Arkansas
    Opinion delivered July 8, 1996

      James O. Cox, for appellant.
    No response.
   PER CURIAM.

On June 3, 1996, a motion by appellant for rule on clerk was denied because the attorney for appellant, James O. Cox, did not admit fault. The appellant’s attorney was given thirty days from the date of the per curiam to file a motion and affidavit accepting full responsibility for not timely filing the transcript. Appellant, Keith Cox Hilstrom, by his attorney, James O. Cox, has filed a second motion for rule on the clerk. In this motion, his attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


text:
    Steve J. JACKSON and Miles King v. Jim Guy TUCKER, Governor of Arkansas
    96-792
    927 S.W.2d 336
    Supreme Court of Arkansas
    Opinion delivered July 12, 1996

      Petitioners, Pro Se.
    No response.
   PER CURIAM.

Steve J. Jackson and Miles King file an original action in this court requesting a restraining order against Jim Guy Tucker, as Governor of Arkansas. Shown as plaintiffs in their complaint and amended complaint, they ask for an expedited hearing so this court can determine whether defendant Jim Guy Tucker should be prohibited from acting as Governor. The gravamen of the complaint, as amended, is to challenge the validity of appointments and grants made by Mr. Tucker after Mr. Tucker was found guilty of two felonies in a federal district court proceeding.

We know of no authority under which the moving parties may file an original action in this court, and they cite no applicable precedent. First, they cite Rule l-2(a)(6), but that rule sets out this court’s appellate jurisdiction in cases of quo warranto, prohibition, injunction, or mandamus. Next, they cite Rule 6-1 which is this court’s rule pertaining to petitions for extraordinary relief involving special proceedings. In Rule 6-1 (a), the rule provides that, in cases in which the jurisdiction of the court is in fact appellate although in form original, such as petitions for writs of prohibition, certiorari, or mandamus, the pleadings with certified exhibits from the trial court (if applicable) are treated as the record. Rule 6-1 (c) and (e) then address that, when filing a petition under Rule 6-1 (a), petitioners may seek relief to stay the trial court proceeding, so that a briefing schedule can be set by this court. Those provisions, again, invoke this court’s authority to review a trial court’s proceeding.

Rule 6-5 is also cited by the moving parties, but that rule merely establishes the procedure where this court’s jurisdiction is original rather than appellate. Rule 6-5 specifically mentions Amendment 7 to the Arkansas Constitution, which specifically provides this court with authority to review the validity of statewide petitions in certain circumstances. Although not mentioned in Rule 6-5, this court has exercised original jurisdiction where its contempt powers were at issue. Osborne v. Power, 322 Ark. 229, 908 S.W.2d 340 (1995).

In sum, this court’s jurisdiction is appellate in nature except where specific law or precedent has established authority for it to proceed in an original action. The moving parties cite no such legal authority under which this court can proceed in an original action concerning the circumstances set out in their complaint, and we know of none. The moving parties’ complaint deals with factual issues that require the taking of evidence. A trial court has the jurisdiction and is established to deal with such evidentiary matters.

The moving parties simply have offered no citation that establishes original authority for this court to proceed, and what they have offered demonstrates a lack of understanding of the constitutional process and the role and rules of this court. Accordingly, we deny petitioners’ request.

JESSON, C.J., BROWN and Roaf, JJ., not participating.


author: BRADLEY D. Jesson, Chief Justice. TOM GLAZE, Justice,

text:
    Eric AVETT v. STATE of Arkansas
    CR 95-1307
    928 S.W.2d 326
    Supreme Court of Arkansas
    Opinion delivered July 15, 1996

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellee.
   BRADLEY D. Jesson, Chief Justice.

The appellant was convicted of two counts of theft by receiving. Ark. Code Ann. § 5-36-106 (Repl. 1993). He was sentenced to ten years on each count, to run concurrently. On appeal, he challenges the sufficiency of the evidence to support his convictions. We agree that the evidence was insufficient and therefore reverse and dismiss.

The facts are as follows. On December 9, 1994, a 1993 Chevy Astro van owned by Debbie Strickland was stolen from her office parking lot in southwest Little Rock. On December 10, 1994, various children’s toys and items of clothing were stolen from the Salvation Army warehouse in southwest Litde Rock. One week later, Litde Rock Police officer Charles Weaver was patrolling an area near 29th and Arch Streets when he noticed a van leaving what he described as a “known crack house.” He ran the van’s license plate on a mobile data terminal. While he was doing this, the van turned into a driveway at 2711 Arch Street. Officer Weaver continued driving while waiting on a report from the terminal. Within a few minutes, the report came back that the van was stolen. Weaver verified the information by radio and asked for the assistance of another unit. He returned to the place he had last seen the van. It was pulling out of the driveway at 2711 Arch. Weaver stopped the van and told the occupants to get out. Both the driver and the passenger complied. Weaver then ordered both men to get on the ground. The driver, Tonda Baker, did so. The passenger, appellant Eric Avett, was not cooperative. He cursed the officer and the police department in general, refused to get on the ground, and yelled for his mother (there is some evidence that Avett lived in the house at 2711 Arch). According to Weaver, Avett smelled of alcohol and had a crack pipe in his pocket. As officers began to take him into custody, he became, according to Weaver, “extremely violent... kicking at officers, yelling for his mother.” Finally, Avett was sprayed with a half-second burst of pepper spray. This enabled the officers to get him into a patrol car. Once inside the patrol car, Avett continued his verbal abuse.

An inventory search of the van revealed boxes of toys and items of children’s clothing, mosdy in the rear of the van. The van itself was in poor shape. Debbie Strickland was called to identify her vehicle. She noted that the steering column was badly broken and had numerous wires hanging from it, that different tires and rims had been installed, that the speakers had been stripped from the van, and that some of the seats had been taken out.

• This evidence, along with some evidence of the value of the stolen items, constituted the State’s case against the appellant. The case was tried to the court. At the close of the State’s evidence, the appellant moved for a directed verdict. The trial judge denied the motion. The appellant then took the stand. He stated that he had only been in the van for three to four minutes when it was stopped by the police. He denied having any knowledge that the van or its contents were stolen. On cross-examination, he admitted that in 1988, he was convicted of breaking or entering, theft of property, and possession of a controlled substance without a prescription (the appellant had been charged as a habitual offender, having been convicted of more than one but less than four felonies). The court found the appellant guilty on both counts, reasoning that he should have known the van was stolen, given its condition. This appeal followed.

A person commits theft by receiving if he:
receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.

Ark. Code Ann. § 5-36-106(a) (Repl. 1993). “Receiving” means acquiring possession, control, or title or lending on the security of the property. Ark. Code Ann. § 5-36-106(b) (Repl. 1993).

The evidence in this case consists of the fact that the appellant was a passenger in the van for a few minutes (the appellant’s testimony is the only evidence of how long he was in the van; the State offered no other proof on this), that the inside of the van was in poor shape; and that the appellant became violent and belligerent upon being confronted by the police. The appellant argues that being a passenger in a stolen vehicle is not, standing alone, enough to establish constructive possession of the vehicle. We agree, and so held in Riddle v. State, 303 Ark. 42, 791 S.W.2d 708 (1990). However, the State notes that, in Riddle, we nevertheless upheld a conviction for theft by receiving based on other corroborative evidence of guilt. Riddle was a passenger in a stolen vehicle. When an officer recognized the vehicle and turned on his blue lights, the vehicle fled at a high rate of speed. After a chase, the vehicle crashed into a stop sign. The occupants, including Riddle, fled from the scene. As Riddle was being chased on foot, he turned and fired a pistol at the officer in pursuit. We said that Riddle’s occupancy of the vehicle, coupled with his flight from the police and his violent attempt to avoid capture constituted sufficient evidence of theft by receiving. The appellant’s angry, violent behavior in this case is a far cry from being part of a high speed chase, running from the scene and firing a pistol at an officer in pursuit. There is no aspect of flight to avoid arrest which was critical to our holding in Riddle.

The State simply did not meet its burden of proof in this case. The appellant’s brief presence in a stolen van which was in poor condition and his violent outbursts upon being taken into custody cannot support a conviction for receiving, retaining or disposing of stolen property, knowing or having good reason to know it was stolen.

The dissent attempts to buttress the State’s case by pointing to the fact that, six and a half years before this incident took place, the appellant was convicted of breaking or entering and theft of property. The State does not argue this on appeal, nor did the prosecution make this a part of its case below. The appellant’s prior convictions were introduced by the State without objection apparently for impeachment purposes during cross-examination of the appellant. The trial judge did not refer to this evidence in determining the appellant’s guilt. The dissent cites Rudd v. State, 308 Ark. 341, 825 S.W.2d 565 (1992), for the proposition that the appellant’s prior convictions were evidence of his commission of the offense in this case. Rudd was a residential burglary case. To obtain a conviction, the State was required to prove the purpose for which the accused entered an occupiable structure. Ark. Code Ann. § 5-39-201 (a)(1) (Repl. 1993). We said that Rudd’s former burglary and theft convictions were admissible to show the purpose for which Rudd had entered the residence.

We are reluctant to consider the appellant’s former convictions as substantive evidence in this case. First, the convictions could not be considered evidence of the appellant’s purpose in getting into the vehicle because purpose is not an element of the offense of theft by receiving. Second, there is an element of unfairness in bolstering the State’s case with questionable evidence which neither the State nor the judge appeared to rely on at trial, which the State has not argued on appeal, and which the appellant has not had the opportunity to object to, either at the trial level or on appeal.

Based upon the foregoing, we hold that the evidence was insufficient to support the appellant’s convictions for theft by receiving. The appellant also raises an issue regarding proof of the value of the items stolen. Since we reverse and dismiss on other grounds, we do not address that issue. Likewise, the State raises an issue regarding our holding in Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995). In that case, we held that a defendant in a nonjury trial need not make a directed verdict motion to preserve sufficiency of the evidence questions on appeal. The State asks us to overrule that case and cites the imprecise nature of the appellant’s directed verdict motion with regard to proof of value. Since we do not reach the proof of value issue, it is unnecessary for us to address the State’s argument.

Reversed and dismissed.

Glaze, Corbin, and Brown, JJ., dissent.

TOM GLAZE, Justice,

dissenting. In finding Eric Avett guilty of the offense of theft by receiving, the trial judge heard the state’s case and Avett’s testimony in defense. During the prosecutor’s cross-examination of Avett, Avett admitted he was a three-time felon, which included convictions for theft, burglary and possession of a controlled substance. Reduced to its simplest terms, the majority court, in reversing the trial judge’s decision, holds the judge could not disbelieve Avett’s explanation that he was only a passenger in the stolen van when it was stopped by the police. If there was ever a case where this court has invaded the factfinding role of the trial judge, it is this one.

First, the majority court cites the case of Riddle v. State, 303 Ark. 42, 791 S.W.2d 708 (1990), for the proposition that being a passenger in a stolen vehicle is not, standing alone, enough to establish constructive possession of the vehicle. Of course, that rule is sound. But even in Riddle, the court upheld the passenger-defendant’s conviction for theft by receiving because he fled from the scene after the stolen vehicle had crashed. The court said that, where a passenger in a stolen vehicle flees for the purpose of avoiding arrest, a factfinder may infer therefrom the dominion and guilty knowledge necessary to convict. Id. at 44. In Riddle, the defendant never took the stand, so his credibility was never in issue. Nonetheless, based only on the state’s evidence that Riddle fled to avoid arrest, this court affirmed Riddle’s jury conviction.

In the present case, there was far more evidence to prove Avett’s guilt than existed in proving the defendant’s conviction in Riddle. Here, the state showed Officer Charles Weaver stopped a stolen 1993 van in which Avett was a passenger. In stepping out of the van, Avett was uncooperative and used abusive language toward Officer Weaver. Avett became extremely violent, kicked at the officer and was only quelled after officers sprayed Avett with O C Pepper Spray.

The 1993 stolen van was described as being in “horrible shape” — the steering column was “busted” with wires hanging out of it, “its tires and rims had been taken, inside seats had been removed and its speakers had been stripped.” The van also contained brand-new toys that were boxed and had never been opened. The toys had been stolen from the Salvation Army.

At trial, Avett testified in an attempt to explain bis presence in the stolen van. Avett claimed he got the driver of the van to give him a ride home which was only a distance of “two or three houses” away. He denied noticing anything about the van or the new toys contained in it.

In rendering his decision finding Avett guilty, the judge clearly disbelieved Avett’s story. The judge said that Avett should have known the van with the Christmas gifts in it was stolen. The judge declared that, because the steering wheel had wires hanging loose and “all kinds of new toys” were in the van, Avett could not have been in the van without having known it was stolen. The trial judge was not required to believe Avett had only (1) been in the van four minutes, (2) was getting a ride home which was a distance of three houses away, (3) had never noticed how the almost new 1993 van had been stripped to a “horrible shape,” and (4) was unaware of unopened boxes of toys contained in the van. In fact, the judge quite reasonably could have inferred that, given his past criminal history, Avett was in no way the innocent participant he purported to be.

The majority opinion is far off the mark in suggesting that, because the judge did not specifically refer to Avett’s prior convictions in deciding his guilt, that this court should not consider them. Nor was the judge required to state all of the evidence and his findings when declaring Avett guilty. The majority court cites nothing to support these assertions because the law clearly holds otherwise.

In a bench trial, the trial judge is capable of evaluating the evidence and the judgment will stand unless all of the competent evidence is insufficient to support the judgment. Rich Mountain Elec. Coop v. Revels, 311 Ark. 1, 841 S.W.2d 151 (1992). Here, all the testimony was admitted into evidence without objection. In addition, it has been held that a remark made by a judge who tries a case without a jury may not be construed as his entire findings of fact ánd conclusions of law. Legate v. Passmore, 268 Ark. 1161 (Ark. App. 1980).

The trial judge trying this case is well-versed in the rules of evidence, and he, as well as the other members of the bench and bar, know that, when a defendant takes the stand, the defendant’s credibility is an issue. See A.R.E. 609; see Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996); Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995); Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992); Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979). Once again, because the trial judge is capable of evaluating evidence, our law does not require a trial judge to actually mention Rule 609 when utilizing it to reject the defendant’s version of what occurred.

In addition, under A.R.E. Rules 404(b) and 403, the state was permitted, as it did, to introduce Avett’s prior theft of property and burglary convictions to show his furtive intent, thus countering Avett’s defense of mistake and his explanation that he had not noticed anything in or about the van when he had entered the stolen van. See Turner, 325 Ark. 237, 926 S.W.2d 843; Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992). Again, the majority opinion ignores established law when suggesting the trial judge was required to review all the evidence he relied on in reaching his decision as well as the rules of evidence he may have considered.

In conclusion, the majority opinion is bereft of reasoning and common sense to say sufficient evidence does not exist to show Avett’s guilt. To the contrary, the evidence clearly supports the judge’s finding of guilt and that decision should be affirmed.

CORBIN and Brown, JJ., join this dissent.


author: David Newbern, Justice.

text:
    Dr. Patsy NICHOLS and Mary Alice Bell v. Shirley Bell WRAY
    95-1093
    925 S.W.2d 785
    Supreme Court of Arkansas
    Opinion delivered July 15, 1996

      Davis & Goldie, by: Steven B. Davis, for appellants.

      James D. Sprott, for appellee.
   David Newbern, Justice.

The late Eppa Sisco had three daughters, Dr. Patsy Nichols, Mary Alice Bell, and Shirley Bell Wray. Ms. Sisco’s will purported to divide her estate equally among the daughters, and there was evidence that she expressed that intention often. After her husband’s death, Ms. Sisco altered certificates of deposit by placing Ms. Wray’s name on them as joint owner with the right of survivorship. Ms. Bell and Dr. Nichols sought reformation of the certificates or the imposition of a constructive trust for their benefit. The Chancellor did not rule on the reformation request and declined to impose a constructive trust, citing Ark. Code Ann. § 23-32-1005 (Repl. 1994), as interpreted by Hall v. Superior Fed. Bank, 303 Ark. 125, 794 S.W.2d 611 (1990), which makes the terms of the certificates conclusive on the issue of the intent of the depositor. We are asked to overrule the Hall case, and we decline to do so.

The Chancellor did impose a constructive trust for the benefit of Dr. Nichols and Ms. Bell upon one parcel of land Ms. Sisco conveyed to Ms. Wray. That resulted from his finding that it was Ms. Sisco’s intention to convey the land to Ms. Wray and thus avoid losing the property in the event she had to enter a nursing home and not to make a gift of it to Ms. Wray. Ms. Wray cross-appeals that part of the decision, and we affirm on cross-appeal.

In 1979, Ms. Sisco and her husband offered Ms. Wray a one-acre tract of land in exchange for her agreement to take care of them. She agreed, and the land was deeded to her. In 1983, they gave her another tract for the construction of a garage. Neither Dr. Nichols nor Ms. Bell objected to either of these gifts of real estate, and the Chancellor, finding that the transactions were intended as gifts, concluded there were no circumstances warranting the imposition of a constructive trust upon those properties.

In 1985, Mr. Sisco died. Ms. Sisco executed new signature cards on certificates of deposit naming Ms. Wray as Joint Tenant in place of Mr. Sisco. Over Ms. Wray’s objection, Dr. Nichols testified that her mother told her Ms. Wray was included on the certificates because a bank employee said a “local person” was needed on the accounts. Both Dr. Nichols and Ms. Bell testified they were aware that Ms. Wray’s name was on the accounts, and that they trusted her “judgment” regarding those funds. The Chancellor, as noted above, declined, on the basis of the Hall case, to consider any evidence of Ms. Sisco’s intent regarding the certificates other than the documents themselves.

The next transaction occurred in January 1991, when Ms. Sisco deeded pasture land to Ms. Wray for the purpose of “squaring up” her property. The land was rented to farmers as pasture, and Ms. Wray collected the rent. The Chancellor did not find evidence sufficient to impose a constructive trust on that property.

The property upon which the Chancellor did impose a constructive trust was the last of the real estate transactions between Ms. Wray and Ms. Sisco in which Ms. Sisco, in 1994, conveyed the property on which her residence was located.

1. The CDs

The Chancellor’s order stated that § 23-32-1005(2)(C) and the Hall case precluded him from considering, with respect to the certificates of deposit, the evidence presented by witnesses who testified that Ms. Sisco intended her three daughters to share equally in her estate. His order states:

As regards the joint accounts, there is no evidence of fraud, undue influence or misrepresentation or any other abuse of the familial trust which existed between the mother and the defendant [Ms. Wray], nor proof of a request from the defendant that the money be given to her. The daughter [Ms. Wray] is a natural object of the deceased’s bounty and a person who had, for many years, lived next door and taken care of the deceased’s needs to a greater extent than the other children,' who lived elsewhere.

The order does not address the request that the certificates of deposit be reformed. The burden of obtaining a ruling upon that requested remedy was upon Ms. Nichols and Ms. Bell. As the Chancellor did not address it, and no objection was made to his failure to address it, we cannot say he erred in not reforming the instruments. Barnes v. Pearson Termite and Pest Control, Inc., 266 Ark. 635, 587 S.W.2d 823 (1979).

We note in passing that the mistake urged as a basis for reformation was allegedly between the bank and Ms. Sisco as to whether a “local person” had to be named joint tenant. We have not seen a case in which a person who is not a party to a contract has been allowed to obtain reformation of it. It has been held that one who is not a party may not obtain reformation. Shelter Mut. Ins. Co. v. Littlejim, 927 F.2d 1132 (10th Cir. 1991). Cf. Hunt v. Century Indem. Co., 192 A. 799 (R.I. 1937).

Section 23-32-1005(l)(A) addresses instances in which “a deposit has been made or a certificate of deposit purchased in the names of two (2) or more persons and in form to be paid to any of the persons so named, or the survivors of them. It is followed by subsection (2) (A) which states “the account or certificate of deposit ... shall be the property of those persons as joint tenants with right of survivorship,” and then subsection (2)(C) which provides, in pertinent part:

(C) The opening of the account or the purchase of the certificate of deposit in this form shall be conclusive evidence in any action or proceeding to which ... the surviving party is a party of the intention of all of the parties to the account or certificate of deposit to vest title to the account or certificate of deposit, and the additions thereto, in such survivor.

In the Hall case we were confronted with a dispute over joint accounts held by a decedent and survivor in a bank and in a brokerage firm. There was strong evidence that the survivor’s name was on the accounts only to assist the decedent and that she recognized her obligation to hold the proceeds for the beneficiaries named in the decedent’s will. After pointing out that “We have not previously addressed the underlying question of whether in the absence of fraud, extrinsic evidence will be allowed to reflect the intent of the parties in establishing joint accounts with right of survivorship,” we interpreted the statute as follows:

We find that the language of Ark. Code Ann. § 23-32-1005(2) (A) and (C) is clear; the opening of the account in the name of two or more persons designated as joint tenants or as joint tenants with right of survivorship “shall be conclusive evidence in any action or proceeding to which.. .the surviving party is a party of the intention of all of the parties to the account...to vest title to the account...in such survivor.” (Our emphasis.) The first rule to be applied in statutory construction is to give the words in the statute their usual and ordinary meaning. If there is no ambiguity we give a statute effect just as it reads. Pledger v. Ethyl Corp., 299 Ark. 100, 771 S.W.2d 24 (1989).
The statute declares that the establishment of the account as joint tenants provides conclusive evidence of the intention of all parties. The signature card for the Superior Federal account provided that Dorothy Edwards and Virginia Hall held the account as joint tenants with right of survivor-ship. Moreover, the signature card suffices to provide written designation to the bank that the account is held in joint tenancy. Therefore, the trial court erred in considering extrinsic evidence as to Dorothy Edwards’ intent, and the funds in the account belong to the appellant as surviving joint tenant.

We held the statute did not apply to the account with the brokerage firm because it is not a bank. The evidence of intent was admissible to show it was not the intention of the decedent to make a gift of that account to the survivor, thus we upheld the decision that the survivor was not the owner of the brokerage account.

The Chancellor’s decision with respect to the certificates of deposit is completely consistent with our decision in the Hall case. Ms. Nichols and Ms. Bell argue intent is irrelevant to the question whether a constructive trust should be imposed, and that is what we said in Edwards v. Edwards, 311 Ark. 339, 843 S.W.2d 846 (1992), the implication being that statement is inconsistent with the Hall rationale. We note, however, that our opinion in the Hall case observed there had been no fraud. We note also that the Chancellor in this case found “no evidence of fraud, undue influence or misrepresentation or any other abuse of the familial trust.” In other words, he found no evidence that the intent of Ms. Sisco as “conclusively” determined by the nature of the certificates of deposit was induced by any impropriety on the part of Ms. Wray. Intent may indeed not matter when the issue is whether there has been unjust enrichment and a constructive trust is sought, but if there is no basis for establishment of that restitutionary remedy, other than intent, then the statute controls.

We decline to overrule the Hall case. Absent a constitutional challenge to the statute, which we have not entertained as yet, we are hardly in a position to change the language of the statute the clear meaning of which we applied in the Hall case. As Ms. Wray points out, were it not for the statute, as interpreted, the issue of whether a constructive trust should be imposed would arise almost any time a person decided to make a gift of a bank account to one of several siblings, simply on the basis of an argument that no parent could intend to favor one over another. We have cited the Hall decision with approval several times, most notably in Nall v. Duff, 305 Ark. 5, 805 S.W.2d 63 (1991), and the General Assembly has met twice without taking any action with respect to the statute since our decision in 1990 interpreting it to mean what it says. In these circumstances overruling would not be appropriate.

2. The land

In her cross-appeal, Ms. Wray argues we should reverse the Chancellor’s decision to impose a constructive trust on the last of the four parcels of land that were transferred to her by her mother. The Chancellor imposed the trust because he found clear and convincing evidence that Ms. Sisco’s intention in making the transfer was to divest herself of ownership to qualify for public-nursing-home benefits. Ms. Wray contends we should reverse the Chancellor’s decision because other evidence indicates that Ms. Sisco’s intent was to give her the property outright as recognition for the care she had given over the years. Ms. Wray argues that the presence of this evidence means that “clear and convincing evidence” to support the imposition of a constructive trust is lacking.

To impose a constructive trust, there must be full, clear, and convincing evidence leaving no doubt with respect to the necessary facts, Tillar v. Henry, 75 Ark. 446, 88 S.W. 573 (1905), and the burden is especially great when a tide to real estate is sought to be overturned by parol evidence. Nelson v. Wood, 199 Ark. 1019, 137 S.W.2d 929 (1940). The test on review is not whether the court is convinced that there is clear and convincing evidence to support the chancellor’s finding but whether it can say the chancellor’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, and we defer to the superior position of the chancellor to evaluate the evidence. Brasel v. Brasel, 313 Ark. 337, 854 S.W.2d 346 (1993); Wright v. Wright, 279 Ark. 35, 648 S.W,2d 473 (1983). See also Davis v. Davis, 48 Ark. App. 95, 890 S.W.2d 280 (1995). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. RAD-Razorback Ltd. Partnership v. B. G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986).

We cannot say that the Chancellor was clearly erroneous in his finding concerning Ms. Sisco’s intent in conveying the last parcel of land. While there is testimony that indicates Ms. Sisco stated she was glad for Ms. Wray to have the property because of the care she had received from her over the years, there is ample evidence that she intended her daughters to share equally in her estate, and that her purpose for conveying the last parcel of land was not to make a gift to Ms. Wray but to enable herself to receive nursing home benefits.

Ms. Sisco’s will provided her property should go in equal shares to her three daughters. Five disinterested witnesses, including Ms. Sisco’s three close friends and her two sisters, testified that Ms. Sisco frequendy stated she wanted her children to share equally in her estate and she never stated that she wanted to favor one of her daughters over the others. Mary Alice Bell and Patsy Nichols also testified their mother told them they would share the estate equally with Ms. Wray.

The most compelling evidence of Ms. Sisco’s intention for the transfer can be found in Ms. Wray’s own testimony, where she admits, “My mother did not want the State to be able to take her home, should I not be able to take care of her anymore. And so, in case she had to go to a nursing home, she did not want her home to go to the State.” Ms. Wray also testified that although the deed was actully executed in April 1994, her mother later “falsified” the document by reexecuting the second page of the deed to show it was signed on April 1, 1991. The deed was filed for record on April 20, 1994. Ms. Wray stated that her mother decided to alter the deed to make it appear to the State that the conveyance had occurred some three years previous to its actual date.

In light of the evidence that indictates Ms. Sisco’s intention for her daughters to share equally in her property, and Ms. Wray’s admission that the last conveyance was intended to protect the property in the event her mother entered a nursing home, we cannot say that we are left with “a definite and firm conviction” that the Chancellor made a mistake by deciding to impose the constructive trust.

Affirmed on appeal; affirmed on cross-appeal.

Dudley, J., not participating.


author: David NEWBERN, Justice. TOM Glaze, Justice,

text:
    POM, INC., and Commercial Union Insurance v. Carl Ray TAYLOR and Second Injury Fund
    96-342
    925 S.W.2d 790
    Supreme Court of Arkansas
    Opinion delivered July 15, 1996
    [Petition for rehearing denied September 9, 1996.]

      Bailey, Trimble, Capps, Lowe, Sellars, & Thomas, by: Chester C. Lowe, Jr., for appellant.

      David L. Pake, for appellees.
   David NEWBERN, Justice.

This is another in a series of workers’ compensation cases dealing with the proof necessary to establish Second Injury Fund liability. In 1989, Carl Ray Taylor suffered a compensable injury requiring surgery to the L-4 — L-5 area of his back while he was employed by the appellant, POM, Inc. He had suffered a work-related injury in the same area of his back in 1983. The second injury also required surgery. After his second injury he was assigned a disability rating of 25%.

Arkansas Code Ann. § ll-9-525(a)(l) and (2) (Repl. 1996) provides that the Second Injury Fund is established and designed to insure that an employer employing a handicapped worker will not, in the event such worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker was in the employer’s employment. The Fund pays the worker the difference between the employer’s liability and the balance of his disability or impairment which results from all disabilities or impairments combined. Mid-State Const. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).

Upon review of Mr. Taylor’s second claim, the Workers’ Compensation Commission held the Second Injury Fund not liable as Mr. Taylor had not suffered any wage loss from the first injury. The Court of Appeals, in an unpublished opinion, reversed the Commission’s decision, POM v. Taylor, CA 92-1250, (Ark.App. December 1, 1993), and we affirmed in Second Injury Trust Fund v. POM, Inc., 316 Ark. 796, 875 S.W.2d 832 (1994). We held the term “impairment” included results of work-related injuries as well as non-work-related ones. Accordingly, Mr. Taylor’s case was remanded to the Commission.

After reconsidering the claim, the Commission once again found that the Second Injury Fund was not liable for any portion of Mr. Taylor’s benefits. According to the Commission, Mr. Taylor’s prior disability or impairment did not combine with the second compensable injury to produce his current disability status, and he was rendered permanendy and totally disabled as a result of his second back injury and subsequent surgery. The Court of Appeals, in another unpublished opinion, agreed with the Commission. POM v. Taylor, CA 95-360 (Ark. App. February 28, 1996). We granted POM’s petition for review.

This case focuses on the third element of the test enunciated in Mid-State Const. Co. v. Second Injury Fund, supra. The test, which is used to determine whether the Second Injury Fund must share liability for compensating an injured worker, was stated as follows:

First, the employee must have suffered a compensable injury, at his present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compensable injury to produce the current disability status.

Our most recent decision on this issue is Hawkins Const. Co. v. Maxell, 325 Ark. 133, 924 S.W.2d 789 (1996), in which we held that the Commission’s finding with respect to the third element of the test was not supported by substantial evidence. In the Hawkins Const. Co. case, the unrebutted medical testimony indicated that the claimant’s two injuries combined to produce his present impairment rating. The only evidence before the Commission contrary to the medical testimony was that which showed the claimant suffered no disability from his first injury that kept him from continuing to do the same sort of labor he had done previously. In finding that such evidence could not overcome the strong medical evidence, we stated, “[t]he fact that Mr. Maxell suffered no wage-loss disability after [his first] injury has no necessary bearing on the issue whether he suffered an impairment from that injury which contributes to his present injury.” (Emphasis added.)

Our opinion in the Hawkins Const. Co. case, and certain cases decided by our Court of Appeals, have helped define how “wage-loss evidence” can be used in the Mid-State test. These cases suggest that where there is medical evidence that the two injuries combined to produce the current disability rating, contradictory evidence that the claimant was able to return to the same type of labor after his first injury is not determinative of the Second Injury Fund’s liability. However, while the ability to work and lack of wage loss cannot be used alone to contradict the medical evidence, it may be used to corroborate it when combined with other evidence, e.g., medical testimony that the claimant was cured after his first injury.

The correct approach is illustrated in Arkansas Highway & Transp. Dept. v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). The Court of Appeals recited medical evidence that indicated the claimant’s disability was attributable to his most recent injury, rather than a combination of injuries. In light of the medical evidence, the Court indicated that the claimant’s ability to work was not the determining factor in the Commission’s decision against the liability of the Second Injury Fund.

The Commission did refer in its opinion to the claimant’s physical abilities and his lack of physical problems subsequent to this prior back impairment but before his compensable injury. However, we cannot . conclude that the Commission made the lack of prior “disability” a determining factor, and we do not think that the extent of one’s physical abilities prior to a compensable injury is necessarily irrelevant in every case, or in this case, to the decision whether the third prong of the test has been met.

In Bussell v. Georgia Pacific Corporation, 48 Ark.App. 131, 891 S.W.2d 75 (1995), the Court of Appeals affirmed when the Commission considered the claimant’s ability to work, but only in light of other evidence that indicated that the second injury alone was responsible for the disability. Specifically, the Commission was influenced by the severity of the second accident and the apparent success of the treatments for the first injury.

In this case, we find substantial evidence to support the Commission’s decision based on the medical evidence that was introduced, as well as Mr. Taylor’s ability to work, which tends to corroborate that evidence. In the Hawkins Const. Co. case there was no evidence other than the ability to return to work and absence of wage loss to show the lack of contribution of the first injury to the ultimate condition of the worker. On the other hand, there was strong medical testimony showing that the first injury created a physical condition which contributed to the ultimate disability. In this case, there is medical evidence that Mr. Taylor obtained an excellent result from his first surgery and that the original assessment of 10% disability to the body as a whole was only pro forma. It was permissible for the Workers’ Compensation Commission to consider Mr. Taylor’s lack of wage-loss disability as some corroboration of that medical testimony.

The first surgery was performed by a Dr. Christian. When inquiry was made by the insurance company which handled Mr. Taylor’s first claim, the response came from Dr. Thompson, who had been Dr. Christian’s partner. In the letter, Dr. Thompson noted, “I have never seen Mr. Taylor, as far as my records indicate.” The doctor noted that a disability rating was not previously assigned because, when Dr. Christian released Mr. Taylor, no claim had been filed. Dr. Thompson interpreted Mr. Taylor’s records and assigned a 10% disability rating. The doctor stated his rationale for choosing a 10% rating as follows:

It has been my practice throughout the years to consider a successfully operated ruptured disc results in a 10% disability of the body as a whole, based on the fact that the patient no longer has a good shock absorber in his back as a result of the condition which was treated (not because of the surgery) and that as a result over the years, he will get some narrowing of the disc space with excess pressure on the facets, so he may get into trouble in the future. It was on this basis that I have felt justified in recommending a 10% disability rating on a person, who for all practical purposes is “cured.”

Dr. Thompson also wrote that Mr. Taylor’s records indicate that “he got an excellent result” from the surgery and “has been released to full activity.” Dr. Haines, the surgeon who performed the second surgery, stated in a postoperative report that Mr. Taylor had previously undergone surgery in the same area of his back, and that “Carl had done well, after surgery, until his time of reinjury.”

To be sure, Dr. Thompson’s letter indicates that patients who suffer injuries similar to Mr. Taylor’s initial one typically lose the “shock absorber” between their discs and for that reason are likely to have trouble in the future. That evidence, however, served only to raise a factual issue which was for the Commission to decide. Buckeye Cotton Oil v. McCoy, 272 Ark. 272, 613 S.W.2d 590 (1981). When there is any substantial evidence to support the Commission’s decision, we affirm. Kuhn v. Majestic Hotel, 324 Ark 21, 918 S.W.2d 158 (1996). In our view, notwithstanding Dr. Thompson’s general remarks, the evidence from Mr. Taylor’s records that he was for all practical purposes “cured” after his first surgery combined with the fact that he returned to work without limitations for some six years was substantial evidence from which the Workers’ Compensation Commission could have concluded the Second Injury Fund was not responsible for any part of Mr. Taylor’s second claim.

Affirmed.

Dudley, J., not participating.

JESSON, C.J., and GLAZE, J., dissent.

TOM Glaze, Justice,

dissenting. I respectfully dissent. The court of appeals’ unpublished opinion on review here misstates what must be shown under controlling case law to establish Second Injury Fund liability. See Mid-State Construction v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988); Hawkins Const. Co. v. Maxell, 325 Ark. 133, 924 S.W.2d 789 (1996). That unpublished opinion concludes as follows:

Most importandy, there was no proof that Taylor’s present disability status would not have resulted solely as the result of his present compensable injury, considered alone and of itself, i.e., that Taylor would not have been totally disabled as a result of this injury even if he had not suffered an earlier impairment. (Emphasis added.)

As this court has held in Mid-State and Hawkins, to establish Second Injury Fund liability, the employee (1) must have suffered a compensable injury at his present job, (2) must have had a prior permanent partial disability or impairment and (3) that disability or impairment must have combined with the recent compensable injury to produce the current disability status. Quite clearly, the proof required under the third prong of the Mid-State test, is different than proving the negative and differently worded burden of proof set out in the court of appeals decision above. In my view, that misstatement persists and has caused enough confusion for this court to have reached the wrong result.

The record reflects that Dr. S. B. Thompson gave Taylor a 10% impairment rating following Taylor’s first injury. In doing so, Thompson stated Taylor no longer had a good shock absorber in his back and that, over the years, Taylor would have narrowing of the disc space with excess pressure on the facets, so he may get into trouble in the future. Dr. Lynn Haines, who performed surgery on Taylor after his second injury, said that he had received information relating to Taylor’s first injury and had concluded he would not have given Taylor a blanket release to return to work. Nonetheless, Haines stated that, subsequent to Taylor’s second injury, there were significant neurologic deficits, along with persistent pain and discomfort, which he felt would bring about an alteration in the patient’s limitations. And finally, Jim Spragins, a vocational expert, expressed his opinion that as a result of both injuries and resulting surgeries, Taylor was essentially unemployable.

As is readily obvious from the above expert testimony, proof very clearly was presented to show Taylor’s preexisting impairment (10%) and subsequent injury combined to produce his current permanent disability. Haines and Spragins, together, established that Taylor’s earlier injury limitations had been altered by the second injury so as to make Taylor unemployable.

The majority opinion suggests the foregoing evidence is insignificant because “there is medical evidence Mr. Taylor was cured after his first injury and that the original assessment of 10% disability to the body as a whole was only proforma.” I suggest the majority has improperly weighed or taken out of context, Dr. Thompson’s testimony to reach the proforma conclusion. No such evidence was presented. Thompson did suggest that Taylor was cured for all practical purposes after the first injury, but in making that comment added (1) Taylor no longer had a good shock absorber in his back, (2) Taylor would get narrowing of the disc space with pressure on the facets and (3) he may get into trouble in the future. In my view, a fair-minded person could not read Thompson’s evaluation of Taylor and conclude Taylor had not been impaired by his first injury and surgery. Yet, the majority uses Thompson’s remarks as substantial evidence to affirm the Commission’s decision.

As Thompson indicated, Taylor was predisposed to having trouble in the future and Taylor did. And that second injury (no surprise to anyone) recurred at the same L-4 -5 level as before. I believe the majority’s reliance on Thompson’s “cured” remark is out of context and is in no way substantial evidence to support the Commission’s decision to deny Second Injury Fund liability. Therefore, I would reverse the court of appeals’ decision.

JESSON, C.J., joins this dissent.