author: James D. Sprott, Special Chief Justice. R. H. “Buddy” Hixson, Special Justice,

text:
    Don RAGAR v. Tad KRUG, Et Al.
    89-325
    794 S.W.2d 151
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990

      David Hodges and Gene O’Daniel, for appellant.

      Dover & Dixon, P.A., by: John B. Peace and Suzanne Antley, for appellees.
   James D. Sprott, Special Chief Justice.

This is the sixth time this case has been before this court. Ragar v. Hooper, 299 Ark. 345, 772 S.W.2d 594 (1989); Ragar v. Hooper, 298 Ark. 353, 767 S.W.2d 521 (1989); Hooper-Bond Ltd. Partnership Fund III v. Ragar, 294 Ark. 373, 742 S.W.2d 947 (1988); Ragar v. Hooper-Bond Ltd. Partnership Fund III, 293 Ark. 182, 735 S.W.2d 706 (1987); Hooper v. Ragar, 289 Ark. 152, 711 S.W.2d 148 (1986). We tracked the procedural history of this case through the various appeals in the last opinion rendered by this Court. Ragar v. Hooper, 299 Ark. 345, 772 S.W.2d 594 (1989). The sole issue for consideration is whether the chancery court erred in granting summary judgment to appellees, Tad Krug, et al. on Cause of Action No. 4 of appellant’s, Don Ragar’s, Complaint filed March 20, 1987. The Chancellor’s action in granting summary judgment on the same Cause of Action No. 4 was previously reversed by this Court, but the reversal was based on a procedural error rather than on the merits of whether summary judgment should have been granted or not, Ragar v. Hooper, 298 Ark. 353, 767 S.W.2d 521 (1989); on remand and after an appropriate hearing, summary judgment was again granted, and this appeal has followed.

The appellant and appellees were the limited partners in a limited partnership originally known as Hooper-Bond Limited Partnership Fund III, which is now known as Shackleford Street Development Company, and which was involved in real estate development. At the time of its inception, Joseph “Buz” Hooper, Boyd Bond, and Hooper-Bond Company were the three general partners of the limited partnership, however, they have been replaced by Flake & Company, Inc., which now acts as the general partner. At least since 1986, litigation plagued the general and limited partners in the development projects to the point that the appellant filed his Complaint in Equity in which he sought an accounting by the three original general partners, certain other relief and specifically set forth Cause of Action No. 4, as follows:

12. Plaintiff, Don Ragar, asks for an accounting from all of the limited partners to determine whether or not all of the proceeds from the limited partners obligated to the Shackleford Street Development Company or Hooper-Bond Limited Partnership Fund III have been paid. It is the information of the Plaintiff herein that certain limited partners executed a note to the partnership as opposed to paying cash to the partnership. There should be a determination as to whether all limited partners have fully paid to the partnership in accordance with the terms and conditions of the original partnership agreement. In the event that some limited partners may owe the partnership funds, then Plaintiff asks for the Court to declare said sum immediately due and payable from the limited partner to the Shackleford Street Development Company.

After filing their answer, the appellees filed a Motion for Summary Judgment as to this cause of action and attached to it the affidavit of John Toney, a certified public accountant with Thomas & Thomas, the accounting firm employed by the limited partnership. Mr. Toney stated in his affidavit that his accounting firm had prepared the tax returns for the limited partnership for 1980 through 1986. Attached to his affidavit was a report he prepared from the accounting work papers in his files and in the files of the previous accounting firm used by the limited partnership, and from the income tax returns of the partnership. The report and his investigation reflect that all capital contributions were paid to the partnership on a pro rata basis based upon the respective ownership percentages of the limited partners.

Mr. Toney’s affidavit further states that all of the partners with the exception of the appellant and Clinton Pope, whom the appellant did not include as a defendant, had contributed to the limited partnership an amount which approximated their respective pro rata share of the total contributions. The report reflects capital contributions by the various limited partners in amounts equal to the ownership percentages shown to be applicable to each limited partner, except for Clinton Pope and the appellant. The report also reflects a total net contribution by the limited partners of $355,504.00.

The appellees also attached to their motion the affidavit of James H. Penick, III, the attorney for Flake & Company, Inc., the successor general partner of the limited partnership. Mr. Penick states in the affidavit that he received certain partnership documents when Flake became the general partner, including the Certificate of Limited Partnership filed September 4,1979, and a certain Closing Statement dated September 7, 1979, both of which were attached to the affidavit. Mr. Penick states, and a review of the two documents shows, there was a total amount of $355,000 in cash delivered to the partnership upon closing and the cash down-payment on the Closing Statement is consistent with the cash designated in the Certificate as deposited with the partnership prior to closing.

The last item attached to the motion is the affidavit of Timothy P. Farrell and F. Tad Krug, two of the appellees. In it, they recite that they had executed a promissory note for an amount equal to the initial cash outlay required for them to purchase 3.5 % and 3.75 % ownership percentages in the limited partnership and that the note was payable to Hooper-Bond Company, one of the general partners, in exchange for the cash payment being made to the limited partnership. The promissory note was to be repaid from distributions by the limited partnership to, Farrell and Krug.

When the appellee’s Motion for Summary Judgment was granted by the Chancellor prior to a hearing which had been scheduled for the motion, the cause was appealed, and this Court remanded the case. Ragar v. Hooper, 298 Ark. 353,767 S.W.2d 521 (1989). This Court stated that the Chancellor should not have granted summary judgment before the day scheduled for a hearing, even if setting a specific hearing date was not necessary. This Court ruled it was not clear that the appellant could not obtain the necessary proof to rebut the allegations in the summary judgment motion.

After remand, the appellees renewed their Motion for Summary Judgment. The appellant relied, in response, on the affidavits of appellant and the discovery depositions of James H. Penick, III, F. Tad Krug, Timothy P. Farrell, and Howard E. Hardin, another appellee and limited partner. In his deposition, Mr. Penick was asked whether he could reconstruct the income and expenditures in the partnership for the period prior to the time Frost & Company, Inc., became the general partner. He stated:

A. Our accountants apparently felt good enough about it to file tax returns and not have to go back and amend any previous ones. So far as I was concerned, relying on them, the affairs were accounted for.
Q. Okay. Now, where — have you ever rendered an accounting based upon what Allen Duncan did and Frost & Company did?
A. He said it was unaccountable. He said he could not make — do an audit. And I did not want to — it did not seem to me to be prudent to pursue it any further, to waste the partnership’s money to audit a partnership account which, in a good accountant’s opinion — I’ve dealt with • Allen Duncan before — it was not auditable.
Q. Let’s change the terminology then. If it’s not auditable, that means something in accounting separate than having an accounting of all the income and expenses, doesn’t it? A. That’s correct.

Allen Duncan was an auditor employed to review the financial records of the limited partnership for activities prior to Frost & Company, Inc., becoming the general partner. It was the firm of Thomas & Thomas, the employer of John Toney, which actually had prepared the income tax returns for the limited partnership during that period.

The appellant also relies on the depositions of three limited partners in opposition to the summary judgment. In his deposition, Mr. Krug stated:

Q. So did you find evidence where Hooper-Bond put money into the partnership for your benefit, as well as Tim Farrell?
A. Yes.
Q. So you were looking at the accounting record to demonstrate the credit for that?
A. Uh-huh.
Q. Aside from what you saw down at Thomas & Thomas, have you been given a, quote, “accounting,” unquote, as I have used that term, which is a total compilation of expenditures and income?
A. Well, we used to get things in the mail. I can’t tell you — I mean, what would you define as an accounting or not. We used to get thing in the mail all the time about things that were going on showing different percentages, but —
Q. Okay.
A. What do you mean by “accounting”?
Q. Well, it’s just a document that goes back and shows all the money coming into the partnership and all the uses of the funds.
A. Well, I was on a mailing list and I got the same thing that everyone else did. I don’t know whether that would be
Q. Do you consider that you have had a full accounting of the Hooper-Bond, III Partnership in the sense that we’ve used that with Mr. Farrell and Mr. Hardin when they answered they didn’t? I think they said no, they didn’t feel like they had an accounting.
A. Probably not.

Mr. Farrell had already given his deposition also under the questioning of appellant’s counsel, in part as follows:

Q. Do you remember how much partnership interest that you had in that or that you still have?
A. 3.75, I believe.
Q. Do you know how much you paid for that?
A. Around 13,000, or something like that.
Q. Okay. Now, how much did you pay in cash?
A. I took a note, did not pay cash. Well, I guess there was cash put in.
Q. Now, take me through how that worked that you put up a note and no cash.
A. Well, we were — we knew the project was coming up and we were asked to join the project and we didn’t have the money. So Buz Hooper came to us and said, “We will lend you the money at a current rate of interest, and you can pay us back out of the land sales.” So we thought that was a pretty good deal, so we did it.
Q. Do you know whether or not the money was actually deposited into the partnership by Hooper?
A. We were told by Thomas & Thomas that the accounting of it was correct.
Q. You were talking about Thomas & Thomas that Hooper put in the 13,000 for you?
A. The accounting, yes. We were asked—later. This was after the fact, we were told that the accounting was — showed that it had come in.
Q. Okay. But aside from what Thomas & Thomas told you, do you have any personal knowledge —
A. No.
Q. — that, in fact, they did put the money in?
A. No.

Mr. Hardin, likewise under the questioning of appellant’s counsel, testified in his deposition as follows:

Q. All right. Now, I wanted to ask you about the accounting, if any, that you’ve ever gotten as to Hooper-Bond, III affairs, and I think accounting may be a broad word. But can you tell me whether or not you’ve ever gotten a statement from the general partner as to the expenses and income of that Hooper-Bond, III?
A. No.
Q. Okay. So that you have not been provided, Mr. Hardin, at any time from this date back, with what you would call an accounting of the affairs of Hooper-Bond, III that’s satisfactory to you.
A. No.

The appellant gave two affidavits used in opposition to the appellees’ motion. In the first, appellant stated that he had never been furnished an accounting in the Hooper-Bond Limited Partnership Fund III, subsequently known as Shackleford Street Development Company, either by the original or successor general partners. After Flake & Company, Inc., became general partner, he said, all the limited partners voted to hire an accountant, Allen Duncan, to give an accounting of the affairs of the partnership. Mr. Duncan advised the partnership that he could not give such an accounting based upon the information that he had available. Mr. Ragar reiterated his desire for an accounting from the previous and successor general partners.

The second affidavit of the appellant in opposition to the Motion merely states that he has paid to the limited partnership all of the legal and appropriate obligations as a limited partner.

The Chancellor considered the Motion for Summary Judgment, the appellant’s response and the affidavits and depositions at a hearing held July 20, 1989, at which time oral arguments were presented. Upon the conclusion of the hearing, the Chancellor granted appellees’ motion, and in his order found that the motion was directed solely at Cause of Action No. 4, which requested an accounting from the limited partners, showing that each limited partner had contributed his pro rata obligation to the partnership; that the documents and affidavits attached to appellees’ motion showed that each limited partner had, in fact, contributed his pro rata obligation; and that the appellees’ proof was not satisfactorily refuted by any evidence presented by the appellant. It is from this Order which the appellant now appeals, alleging merely that the Chancellor erred in granting summary judgment.

A summary judgment is to be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits filed, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A.R.C.P. Rule 56(c). The standard for review of a summary judgment was recently restated in the case of Pinkston v. Lovell, 296 Ark. 543, 547, 759 S.W.2d 20, 22 (1988):

Summary judgment, like a mistrial, is an extreme remedy. It will be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c) of the Arkansas Rules of Civil Procedure. The burden of proving that there is no genuine issue of material fact is upon the appellee in this case, and all proof submitted must be viewed in a light most favorable to the party resisting the motion—appellant Pinkston. Ford v. Cunningham, 291 Ark. 56, 722 S.W.2d 567 (1987). Any doubts and inferences must be resolved against the moving party—appellee Lovell.

Thus, the appellees here bear the burden of proving there is no genuine issue of material fact, and we are to consider all proof submitted in a light most favorable to the appellant, Ragar.

The analysis of the facts must begin, however, within the confines of the specific relief sought by the appellant. His Cause of Action No. 4 seeks simply an accounting of the limited partners to determine if all of the named defendants, the appellees herein, had made contributions to the partnership in accordance with the legal obligation imposed upon them by the limited partnership certificate. The cause of action is not one seeking a general accounting of either the limited partnership or the general partners. This Court so limited the issue on remand when the case was returned to the Chancellor for consideration of Cause of Action No. 4. Ragar v. Hooper, 298 Ark. 353, 767 S.W.2d 521 (1989).

Since the issue is whether or not the limited partners have paid their legal obligations, we need to inquire how the fact of payment might be proved. Obviously, it may be proved from either the records of the party paying the obligation or from the records of the party to whom the obligation is owed. The record in this case does not include proof from the records of the limited partners who owed the obligation; however, the record does contain proof from the records of the recipient of the obligation. John Toney, the certified public accountant for the general partner of the partnership, testified by affidavit that “all capital contributions were paid to the partnership on a pro rata basis” and “all of the partners with the exception of Don Ragar and Clinton Pope contributed to the partnership an amount which approximates their respective pro rata share of the total contributions.” Ragar did not include Pope as a party defendant, so the exception relating to Pope is not relevant here; likewise, Ragar in his affidavit acknowledged that he had paid all sums owed to the partnership, except a sum he called illegal, which represented the “exception” to Toney’s affidavit. Thus, the records of the recipient of the obligation, that is, the limited partnership, reflect that all of the obligations of the limited partners for capital contributions have been paid.

The affidavit of James H. Penick, III specifically states that all of the cash necessary for the first development project of the limited partnership was in its hands three days after it came into existence with the filing of its certificate with the Secretary of State on September 4,1979. Further, the closing statement dated September 7,1979, is an independent record showing that there was at least $348,000.00 cash in the hands of the limited partnership, which was used as a down payment on the first development projects. There is not even a hint of evidence to contradict this latter affidavit or that the cash was in fact in the hands of the limited partnership.

To contradict these facts, appellant relies on three limited partners’ statements under oath that they had not been provided an accounting by the former general partner. It is clear from a reading of the depositions that appellant’s counsel was using the word “accounting” in a very broad manner, relating it to a total record of income and expenses. None of the three were asked nor did they say whether or not they had any question whether the limited partners had made all of the appropriate contributions. There are no cross complaints seeking any relief among the appellees. And again, the relief sought which has been denied by summary judgment is not a request for a full accounting of the limited partnership or the general partner, but merely a request for proof that all limited partners have contributed their full legal obligation. None of the three depositions controvert the testimony of Mr. Toney that all obligations have been met. We find no merit to the appellant’s arguments that proof of the payment of the obligations must come from the limited partners’ records as opposed to the records of the limited partnership itself.

The appellant also argues that two of the limited partners’ contributions were not in cash. Krug and Farrell, appellant says, relied upon the original general partner to make the contributions. We see no significance between a loan of cash, evidenced by a legal promissory note, whether from a bank or any other entity, when the cash is in fact contributed to the limited partnership. The issue is whether the cash was contributed to the limited partnership, not the source of the cash. It is important to note that there is no allegation that the contribution of Krug and Farrell was in the form of a note to the limited partnership itself.

Appellant argues that the statement of Allen Duncan proves, or at least creates the inference, that the accounting records relied on by Mr. Toney are inaccurate, and therefore, an issue remains. However, a close review of Mr. Penick’s statements as to Mr. Duncan’s activities creates no inference as to inaccuracy about the partners’ capital contributions. Penick quotes Duncan as saying he could not make or do an audit. Penick says it seemed a waste of partnership money to try to audit the records, when Mr. Duncan said they were not auditable. However, appellant’s counsel specifically recognized that being “unauditable” means something in accounting principles quite different from having an accounting of all expenses and income. Appellant’s counsel thus recognized that Duncan’s remarks do not denigrate the accuracy of an accounting of the net income records of the partnership, and the remarks certainly do not call into question records relating to partnership capital contributions. Those records were clearly adequate and accurate enough for seven years of income tax returns without amendment or apparent problems in audits. If one accountant’s remark that certain records were “unauditable” rendered suspect the accuracy of another CPA’s review of records as to capital contributions, we would be improperly permitting a mere suspicion on a plaintiff’s part to prolong litigation for a fishing expedition. BWH, Inc. v. Metropolitan Nat’l Bank, 267 Ark. 182, 590 S.W.2d 247 (1980).

The blunt fact remains: There has been nothing presented by the appellant to controvert the testimony of Toney and Penick that all the contributions were in fact made and that the cash was in fact in the hands of the partnership. Although the record reflects that Mr. Toney offered to make the records which were the basis of his affidavit available to appellant, we have no evidence controverting the report he made and attached to his affidavit. We recognize that the object of summary judgment proceedings is not to try the issues, but to determine if there are any issues to be tried. However, we have also said that the purpose of summary judgment is to expeditiously determine cases without the necessity for formal trial where there is no substantial issue of fact; if no factual dispute exists, the case should be disposed of by summary judgment rather than exposing the litigants to unnecessary delay, work, and expense in going to trial when the trial judge would be bound to direct a verdict after all the evidence. Joey Brown Interest, Inc. v. Merchants Nat’l Bank, 284 Ark. 418, 683 S.W.2d 601 (1985).

We find that the Chancellor was correct in ruling there are no remaining issues with regard to appellant’s Cause of Action No. 4, and appellant’s efforts to obtain a general accounting from the limited partnership and the general partners are likewise not an issue here. Having found that the record herein shows no genuine issue as to any material fact concerning Cause of Action No. 4, we must affirm.

Affirmed.

Holt, C.J., and Hays and Price, JJ., not participating.

Special Justices R.H. “Buddy” Hixson and Alex G. Streett dissent.

R. H. “Buddy” Hixson, Special Justice,

dissenting. In the case of Ragar v. Hooper, 299 Ark. 345, 772 S.W.2d 594 (1989), this Court correctly tracked the prior litigation between the parties. The parties have litigated both in circuit and chancery court. The matter before the Court at this time is a chancery action that has been before this Court in Ragar v. Hooper, 298 Ark. 353, 767 S.W.2d 521 (1989), wherein the first three counts in the plaintiffs present cause of action were correctly determined by this Court to have been decided at prior litigation and were thus barred by res judicata. That left appellant’s Cause of Action No. 4 remaining to be decided in chancery court. The appellees had filed a Motion for Summary Judgment in the last above cited Ragar case, and the lower court had granted that Motion for Summary Judgment on a date not set for hearing. Therefore, this Court remanded the case to the trial court for an appropriate hearing, with the required notice, on the Motion for Summary Judgment filed by appellees. This Court, in remanding this cause, did so because the lower court should not have granted the summary judgment before the date it was set for hearing, unless it clearly appeared that Ragar could produce no proof contrary to the affidavits. When the lower court heard the motion, after a timely setting, it again granted the appellees’ motion from which the appellant appealed to this Court. The sole issue before the Court at this time is whether or not the lower court properly ruled on appellees’ Motion for Summary Judgment.

Cause of Action No. 4 of appellant’s complaint asked for an accounting from all the limited partners to determine whether or not all of the proceeds from the limited partners obligated to the limited partnership had, in fact, been paid. This Court, in Ragar v. Hooper, 298 Ark. 353, 767 S.W.2d 521 (1989), determined that limited partners were entitled to an accounting from the other limited partners when they remanded the case to the lower court for a proper presentation of that issue to the lower court. The legislature had set forth various responsibilities and limitations on limited partners in Ark. Code Ann. § 4-44-113 (1987) and Ark. Code Ann. § 4-44-104 (1987). Further, this Court in Stuckey v. Douglas, 240 Ark. 637, 401 S.W.2d 218 (1966) and Frank v. Pickens & Son Co., 264 Ark. 307, 572 S.W.2d 133 (1978) has held that accountings are proper devices to determine if the partners have conducted themselves properly and complied with the terms of the partnership agreement. The appellees addressed Cause of Action No. 4 by Motion for Summary Judgment with various affidavits and depositions, none of which, in fact, provides an accounting from the limited partners, but are directed toward the accuracy, or lack of accuracy, of the accounting of the general partner that the limited partners had contributed as agreed. If the limited partners are entitled to an accounting from each other as to their contributions, an accounting from the general partner as to the contributions of the limited partners does not, in fact, provide an accounting of the limited partners to determine if they have contributed as agreed.

It is apparent that the general partner was attempting to thwart the appellant’s right to an accounting from the limited partners in that they had in prior proceedings filed for a protective order to prohibit appellant from deposing the sixteen (16) limited partners. The record is clear from the affidavits and/or depositions from the certified public accounting firm of Thomas and Thomas that the information furnished to them as to the general partners’ transactions is limited to the information as represented to them by management, the general partner. They did not audit or review the accompanying statement of charges and partners’ capital accounts, and therefore they did not express an opinion or any other form of assurance upon it.

Limited partners are entitled to an accounting of the limited partners. An accounting of the general partners as to the activities of the limited partner does not satisfy that legal right. The action of the lower court in granting appellees’ Summary Judgment Motion has in effect ruled that the accounting furnished by the general partner answers the legal right of the limited partners to account to one another. The lower court should have required an accounting from the limited partners as to their contributions and withdrawals to determine if same complies with the agreements of the parties. It could be done simply by the showing of documented evidence of each limited partner’s contributions and withdrawals.

Summary Judgments are extreme remedies and should not be granted where evidence presents itself in such a manner that reasonable men might differ. Clemons v. First Nat’l Bank, 286 Ark. 290, 692 S.W.2d 222 (1985). The question here is, has there been an accounting from the limited partners? There has not.

For the reasons above, I would reverse and remand the lower court’s decision with directions that the limited partners be required to account for their contributions and withdrawals to determine if same comply with the laws governing partnerships and the agreement of the parties.

Special Justice Alex G. Streett joins in this dissent.


source: Caselaw Access Project

author: Robert H. Crank, Special Justice. Steele Hays, Justice,

license: Public Domain

text:
    Beverly HILL v. WAL-MART STORES, INC.
    90-60
    792 S.W.2d 614
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990

      Hartenstein, Taylor & Montgomery, by: Joel Taylor and J. Blake Hendrix, for appellant.

      McMillan, Turner & McCorkle, by: Ed McCorkle, for appellee.
   Robert H. Crank, Special Justice.

On May 17, 1987, Beverly Hill parked her 1987 Nissan 300ZX automobile in the parking lot provided for customers of Wal-Mart at its Hot Springs store. While she was in the store, it began to rain and the parking lot rapidly flooded with water, rising to a level of over two feet. The electrical system of Hill’s vehicle was extensively damaged and repair costs amounted to $5,061.35. Her insurer, Farmers Insurance Group, paid $4,561.35 toward the repair costs and she paid the balance of $500.00, the amount of her deductible. The jury awarded her $500.00.

Suit was originally filed against Wal-Mart Stores, Inc., by Farmers Insurance Group for the sum of $4,561.35 and subsequently by amendment the suit was changed to that which was presented to the jury of a claim by Beverly Hill alone for $5,061.35 actual damages and $50,000 punitive damages.

Plaintiffs theory of liability was that the flooding was caused by restricted flow in a drain on the parking lot and that Wal-Mart had prior knowledge of flooding near this drain.

Submitted to the jury as part of Hill’s testimony concerning damages was the repair bill which had on the bottom of the document the notation:

Ins 4561.35
Cust 500.00
5061.35.

No testimony was introduced concerning the existence of insurance by either party nor was reference made to insurance in argument. At the close of the trial the jury was instructed as to the law concerning evaluation of damages in the event it found WalMart liable, along with the instruction as to proper allocation of damages in the event that the jury found comparative negligence.

During the course of deliberations, the jury sent a note to the trial court inquiring if the repair bill indicated that insurance paid $4,561.35 and plaintiff paid $500.00. The court seated the jury and advised it that it had the evidence and instructions before it and that was sufficient for them to decide the case. Thereafter, the jury returned a verdict in behalf of plaintiff Beverly Hill against Wal-Mart in the amount of $500.

Hill filed a motion for a new trial based on ARCP Rule 59(a)(5), asserting an error in the assessment of the amount of recovery and because the jury erroneously speculated as to the existence of insurance coverage in determining the amount of the damages and failed to properly follow the instructions regarding assessment of damages.

The trial court denied Hill’s motion stating that, if there was any error or confusion, it was brought about by plaintiffs exhibit. From this decision Hill appealed. We affirm the judgment of the trial court.

The issue presented by this appeal is whether this court should reverse the ruling of the lower court and grant a new trial on the basis that notations on appellant’s own exhibit created error. The collateral source rule in Arkansas prevents consideration by the jury of benefits received by a plaintiff from sources collateral to the defendant. The rule applicable to this case is more clearly stated to be that the existence of insurance cannot be unnecessarily injected into a case. Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973); Vermillion v. Peterson, 275 Ark. 367, 630 S.W.2d 30 (1982). In Vermillion the facts were quite similar in that the plaintiff there had introduced certain medical records which had notations with reference to an insurance carrier. The difference in Vermillion, however, was that the defense unnecessarily injected insurance in the trial by arguing to the jury that the medical bill had apparently already been paid and plaintiff was seeking double recovery. In the present case, no reference was made to insurance by the defendant Wal-Mart and any deficiency in the verdict should not be the basis for complaint by the party whose evidence may have caused the deficiency. To hold otherwise would place the burden upon opposing counsel and the courts to protect the party introducing evidence from her counsel’s own mistakes.

Affirmed.

Special Justice William H. Hodge joins in this opinion.

Hays, J., dissents.

Dudley and Turner, JJ., not participating.

Steele Hays, Justice,

dissenting. It is, of course, tempting to affirm this case on the premise that counsel for the plaintiff should not have overlooked the inscription “Ins.” on the repair bill. But to affirm on that basis ignores a more significant aspect of the case, one that should override a relatively immaterial oversight (if that is what it was) by trial counsel. The fact is the evidence gave the jury only two options: a verdict for the defendant, or a verdict of $5,061.35 for the plaintiff. No other verdict was possible, given the proof and the instructions. By returning a verdict in an amount it assumed was the plaintiff’s deductible, the jury palpably disregarded the instructions by the trial court, or the undisputed proof as to the plaintiffs damages, or both. In either event it is clear the jury took matters into its own hands and countermanded the instructions of the trial court. In that circumstance a new trial should have been granted.


author:
      W. Frank Morledge, Special Justice.
      Steele Hays, Justice,

text:
    ALUMINUM COMPANY OF AMERICA v. Brad J. GUTHRIE
    89-209
    793 S.W.2d 785
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990
    [Rehearing denied September 10, 1990.]

      Rose Law Firm, A Professional Association, by: Phillip Carroll, for appellant.

      Boswell, Tucker & Brewster, by: Ted Boswell, for appellee.

      Hays and Glaze, JJ., would grant rehearing. Price, J., not participating.

   W. Frank Morledge, Special Justice.

This is a personal injury case and a companion case to Guthrie v. Kemp, 303 Ark. 74, 793 S.W.2d 782 (1990). (Guthrie appealed summary judgment granted in favor of Kemp.)

The appellee, Brad Guthrie, filed suit against the appellant, Aluminum Company of America (Alcoa), for damages for injuries he claims were caused when he fell from a bridge owned by Alcoa. The jury awarded him $450,000. On appeal, that verdict was reversed and remanded to the trial court. Aluminum Co. of America v. Guthrie, 296 Ark. 269, 753 S.W.2d 538 (1988).

On July 18, 1988, the same day this court delivered its opinion in Aluminum Co. of America v. Guthrie, supra, Guthrie filed suit against Kemp, who, on July 21, 1985, the date of Guthrie’s injuries, was Alcoa’s chief of security. Subsequently, the trial court consolidated that case, upon Guthrie’s request, with Aluminum Co. of America v. Guthrie, supra.

The trial court granted summary judgment in favor of Kemp on December 30,1988. The retrial of Aluminum Co. of America v. Guthrie, supra, was held January 3, through January 6,1989. The jury awarded Guthrie $1.1 million.

From that verdict, Alcoa appeals and alleges five points of error: (1) the trial court erred in denying Alcoa’s motion for a directed verdict; (2) the trial court erred in giving the second bracketed portions of Paragraph B, AMI 1106; (3) the trial court abused its discretion in allowing the testimony of a retired economist to be read; (4) the trial court committed prejudicial error in failing to modify the comparative fault instruction to reflect the essential prerequisites to applying the instruction; and (5) the verdict was excessive.

We find merit in Alcoa’s first point of error and reverse and dismiss.

The case turns on Guthrie’s status as a trespasser, licensee, or invitee upon Alcoa’s property. Guthrie argues that he was an implied invitee on Alcoa’s bridge. We disagree.

Guthrie testified that he had no recall of the manner in which he was injured or the events of the day prior to his injury. His case was presented to the jury on the theory that he had left an area called Lost Lake, to which he had gone with friends for a moonlight swim, and was walking to his ex-girlfriend’s house some two and a half miles away. There was evidence that a route across Alcoa’s bridge would have been a shortcut between the two points. It was surmised that Guthrie was injured when he fell through an opening left by the removal of grates from the bridge. The bridge, or overpass, was apparently constructed by the B &N Railroad to carry its track. After B&N vacated the bridge, it was used by Alcoa to support a water line. There was testimony that children and adults had been seen on the bridge during daylight hours, and, on one occasion, at night when police were summoned to remove children reported to be dropping rocks on cars passing below. Another witness for Guthrie testified that it was “not uncommon” to see people on the bridge. We consider this proof in the light most favorable to the appellee.

Nonetheless, while we have recognized that an invitation may be extended by implication, the proof in this case falls short of that required to establish such status. In each of the cases recognizing implied invitee status, we have required some affirmative act on the part of the landowner which induces another to enter the premises. In Missouri Pacific R.R. Co. v. English, 187 Ark. 557, 61 S.W.2d 455 (1933), we held that the construction and continued maintenance by the defendant of a foot bridge for the use of the public was an implied invitation. In St. Louis Iron Mountain & Southern Ry. Co. v. Dooley, 11 Ark. 561, 92 S.W. 789 (1906), the construction by the railroad of steps for use by the general public was held sufficient. In Aluminum Company of America v. Walden, 230 Ark. 337, 322 S.W.2d 696 (1959), the construction of a private road which appeared to be a continuation of the public road was held sufficient. Vickers v. Gifford-Hill & Co., Inc., 534 F.2d 1311 (8th Cir. 1976), cited by Guthrie, held that the opening of a gate across a private way used by the public constituted an implied invitation.

In this case, there is no evidence of any affirmative action by Alcoa which rises to the level of an implied invitation. We find a real and substantial distinction between injury on a facility constructed or maintained for the purpose of use by the public or the act of literally opening a gate, and the facts of this case which, under their highest construction, could constitute only acquiescence on the part of Alcoa. As we have previously stated, mere acquiescence by the landowner is insufficient. Chicago, Rock Island & Pacific Ry. Co. v. Harrison, 204 Ark. 361, 162 S.W.2d 62 (1942); Chicago, Rock Island & Pacific Ry. Co. v. Payne, 103 Ark. 226, 146 S.W. 487 (1912).

Neither is the proof sufficient to allow recovery to Guthrie as a trespasser or licensee whose presence and position of danger should reasonably have been known by Alcoa. In Baldwin v. Mosley, 295 Ark. 285, 748 S.W.2d 146 (1988), we stated our long standing position:

In Webb v. Pearson, 244 Ark. 109, 424 S.W.2d 145 (1968), this court said, quoting from Knight v. Farmers’ & Merchants’ Gin Co., 159 Ark. 423, 252 S.W. 30 (1923):
In all of our decisions on the subject—and there are many — we have adhered to the rule that one who goes upon the premises of another as a mere licensee is in the same attitude as a trespasser so far as concerns the duty which the owner owes him for his protection; that he takes the license with its concomitant perils, and that the owner owes him no duty of protection except to do no act to cause him injury after his presence there is discovered. (Emphasis added.)
The Webb court further recited the following, more explicit rule on the subject, as it was set out in Cato v. St. Louis Southwestern Ry. Co., 190 Ark. 231, 79 S.W. 62 (1935):
Whether he be called a trespasser or a licensee, the same rule of law applies, and that is that the only duty owing him was not to wilfully or wantonly injure him and to exercise ordinary care under the circumstances to avoid injury to him after discovering his peril. (Emphasis added.)

There is no evidence of wilful or wanton conduct on the part of Alcoa or that Alcoa discovered or reasonably should have discovered Guthrie’s peril on the night in question.

Reversed and dismissed.

Hays and Glaze, JJ., dissent.

Price, J., not participating.

Steele Hays, Justice,

dissenting. I respectfully disagree that this case should have been disposed of by a directed verdict for the defendant. There was sufficient evidence from which a jury could have concluded that Brad Guthrie was an implied invitee. But even if that proof fell short, there was evidence from which the jury could have determined that Guthrie was a licensee.

Prosser defines licensees as those who enter another’s land with nothing more than consent, e.g., those taking shortcuts across the property or making merely permissive use of crossings and ways. Such permission may be tacit and may be manifested by the defendant’s conduct, or by the condition of the land itself. The owner owes no duty to make the premises safe for such persons, nor to warn them of dangers which are patent or obvious. There may, however, be a duty to warn such persons of hidden dangers known to the occupier-owner. While earlier cases frequently state there was no duty to licensees except to refrain from willful or wanton injury, the trend, however, “has been toward a gradual modification of this position.” W. Prosser and W. Keeton, The Law of Torts § 60, at 412 (5th ed. 1984).

The Restatement (Second) of Torts § 342 (1965), adopts a more contemporaneous view:

Dangerous Conditions Known to Possessor.
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.

In a dissenting opinion to King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990), I cited language from Annotation, Danger to Licensee Warning, 55 A.L.R.2d 525, § 2 (1957):

While in a number of cases general language may be found which seems to restrict a licensor’s duty to a licensee to that of refraining from wilful or wanton misconduct, or, at most, active negligence, the cases which have explicitly considered the question have frequently recognized that a licensor-landowner may be under an obligation of exercising reasonable care to warn licensees of hidden dangers known to the licensor.

That is said to be the law in most jurisdictions, F. Harper, F. James and O. Gray, The Law of Torts, § 27.9 (2d Ed. 1986) andis in accord with the general rule as stated in some of our cases: Baldwin v. Mosley, 295 Ark. 285, 748 S.W.2d 146 (1988); Webb v. Pearson, 244 Ark. 109, 424 S.W.2d 145 (1968); Cato v. St. Louis Southwestern Ry. Co., 190 Ark. 231, 79 S.W.2d 62 (1935). Others (cited in the majority opinion) give a different emphasis in stating the general rule and it strikes me that our cases reflect some uncertainty, although AMI 1103 and 1106 recognize that circumstances may impose a duty of ordinary care to avoid injury to a licensee.

There was ample testimony in this case from which it could be inferred that Alcoa knew or should have known that the public generally was using its bridge as a passageway across the highway, as an elevated platform from which to watch ballgames played on an adjacent field, on which to paint graffiti and as a place from which to drop objects on motorists passing below. In short, public access and usage of the bridge for various purposes over a period of time were clearly established. Coupled with that was evidence that Alcoa knew, or should have known, that a latent, hazardous condition existed which might not be readily apparent—a missing piece of grating. Photographs, as well as testimony, demonstrate that the absence of the grating from the crosswalk on the bridge constituted a hazard which might easily go unnoticed, particularly at night.

When those facts are viewed in their strongest light, reasonable minds could readily differ as to whether Alcoa should have known of the danger and given warning or removed the hazard. That being so, it was not error to deny the motion for a directed verdict.


author: Per Curiam.

text:
    AMERICAN TRUCKING ASSOCIATIONS, INC., et al. v. Maurice SMITH, Director, Arkansas Highway and Transportation Department
    85-101
    792 S.W.2d 616
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990

      Williams & Anderson, by: Peter G. Kumpe; Mayer, Brown & Platt, by: Andrew L. Frey, Kenneth S. Geller, and Douglas K. Mayer, and ATA Litigation Center, by: Daniel R. Bareny, Robert Digges, Jr., and Laurie T. Baulig, for appellants.

      Robert L. Wilson, Arkansas Highway and Transportation Department; and Friday, Eldredge & Clark, by: B.S. Clark, John Dewey Watson, and Robert S. Shafer, for appellees.
   Per Curiam.

In American Trucking Associations, Inc. v. Gray, 295 Ark. 43, 746 S.W.2d 377 (1988), we held unconstitutional a “flat” tax on truckers known as the highway use equalization tax (HUE). We determined that the truckers, represented by American Trucking Associations, Inp. (ATA), were entitled to a refund of those payments of the tax which had been placed in escrow beginning August 14,1987, pursuant to an order of Mr. Justice Blackmun in anticipation of the holding that the tax was unconstitutional.

The basis of Mr. Justice. Blackmun’s order escrowing the payments of the Arkansas HUE tax was the Supreme Court’s decision in American Trucking Associations, Inc. v. Scheiner, 483 U.S. 266 (1987), which held unconstitutional a Pennsylvania tax similar to the Arkansas HUE tax. The Scheiner decision was handed down on June 23, 1987.

On petition of certiorari, the Supreme Court reviewed our decision in the Gray case. ATA contended the Scheiner decision should be applied retrospectively and thus the truckers were entitled to all such taxes paid. The Supreme Court affirmed our conclusion that the Scheiner decision was prospective only. It was, however, made clear that those who had paid the tax were entitled to a refund for any taxable period after the date of the Scheiner. decision and not just from the date the escrow was established. American Trucking Associations, Inc. v. Smith, Director, Arkansas Highway and Transportation Department, __U.S__, 110 S.Ct. 359 (1990). ATA asks that we remand the case to the chancery court for a determination of the refunds due and other matters yet to be decided, such as attorneys fees.

As the Scheiner decision preceded the end of the 1986-1987 tax year by only a few days, ATA has waived its right to refunds for that tax year in order to make the refund process less complicated. It claims entitlement to refunds for taxes paid for the 1987-1988 tax year, regardless of whether they were paid prior to or after the Scheiner decision. The respondents, Mr. Smith, the members of the highway commission, and others, ask that the question of the amount of the refund to be granted be briefed before this court so that we may give directions to the trial court.

In the Smith case, the Supreme Court remanded for consideration in light of its decision in McKesson v. Division of Alcoholic Beverages and Tobacco, __U.S__, 110 S.Ct. 2238 (1990). The question of the amount of refund should be decided first by the chancellor. It may or may not become necessary for this court to review that decision.

ATA also asked that we shorten the response time for the appellees with respect to this motion so that the case could be remanded prior to our summer recess. That has proven to be unnecessary, so that portion of the motion is denied.

The case is remanded to the chancery court for orders consistent with this opinion.

Turner, J., not participating.


text:
    Lenner PARKER v. STATE of Arkansas
    RC 89-49
    792 S.W.2d 619
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990
    Pro Se Motion for Belated Appeal granted.

      Lenner Parker, for petitioner.

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

In 1989 Lenner Parker filed in this court a timely motion for belated appeal of his conviction for the offense of delivery of cocaine. He alleged in the motion that his retained attorney Morris W. Thompson failed to perfect an appeal despite his request that he do so. Because Mr. Thompson’s affidavit submitted in response to the motion and the assertions of Parker were in direct conflict, we remanded the matter to the trial court for an evidentiary hearing and findings of fact. The trial court’s findings are now before us.

The trial court found that it had advised appellant of his appeal right and the time limitations for filing a notice of appeal. The court also found that petitioner inquired of his counsel, “What about an appeal?” (The record reflects that the inquiry was immediately after trial.) The court further found that counsel explained the appeal procedure and approximate cost of an appeal and was informed by petitioner that he did not have, and could not get, the money. The court also found that counsel assumed from the fact that petitioner did not mention an appeal again that he did not desire an appeal, and that it was that assumption which caused him not to file a notice of appeal rather than petitioner’s inability to pay attorney’s fees and costs. The court also found, however, that counsel did not advise petitioner that counsel had a duty to continue to represent him throughout any appeal unless permitted to withdraw by the court. Based on its findings, the court concluded that petitioner did not express a desire to proceed with an appeal until sometime after he was imprisoned, thus waiving his right to appeal through his failure to advise counsel within the thirty days for filing a notice of appeal that he desired to appeal.

Criminal Procedure Rule 36.26 provides:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

As counsel here was not relieved by the trial court or this court, he was obligated to perfect an appeal, unless his client waived his right to appeal by not informing him that he desired an appeal. See Davis v. State, 293 Ark. 203, 736 S.W.2d 281 (1987). If a convicted defendant desires an appeal and cannot afford the cost, counsel should file a motion in the trial court to be relieved and a motion asking that the defendant be declared indigent and counsel appointed. Lewis v. State, 279 Ark. 143,649 S.W.2d 188 (1983). It is well settled that the failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal amounts to a denial of effective assistance of counsel and is grounds to grant a motion for belated appeal. Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982).

We do not agree with the trial court’s conclusion that petitioner waived his appeal right. The testimony at the hearing reflects that petitioner believed that an appeal would cost approximately $10,000.00. Although he may have been aware by an attorney other than Morris Thompson that he could ask for appointment of counsel, it appears that he was discouraged from doing so by being informed that he would probably lose all chance for remaining free on bond if he were found indigent.

As stated, counsel was not relieved by the trial court or this court, and thus his obligation to his client continued. Counsel was not entitled to abandon the appeal solely because there was no money for an appeal. Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989). As Morris Thompson remains attorney-of-record in this case, and the state does not contest petitioner’s claim of indigency, we will appoint Morris Thompson to continue with the appeal. A petition for writ of certiorari shall issue to bring up the record. A copy of this opinion shall be forwarded to the Committee on Professional Conduct.

Motion granted.


text:
    Lester BROOKS v. STATE of Arkansas
    CR 90-9
    792 S.W.2d 617
    Supreme Court of Arkansas
    Substituted Opinion delivered July 16, 1990

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petitioner was convicted of two counts of theft of property and sentenced to six years for one charge and eight years for the other, to be served concurrently. The Arkansas Court of Appeals affirmed the conviction in an opinion not designated for publication. Brooks v. State, CA CR 88-290 (September 27, 1989). The petitioner now seeks permission to proceed in circuit court for post-conviction relief pursuant to Rule 37.

The petitioner claims that he was denied effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).

The petitioner argues that his attorney was ineffective because he failed to investigate prior to trial and interview potential witnesses. The petitioner fails to say what witnesses or relevant facts the attorney could have found had he adequately investigated and prepared the case. Therefore, the allegations are conclusory and will not provide a basis for post-conviction relief. Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978).

The petitioner’s chief claim is that his counsel was ineffective for failing to object to two security guards’ testimony of the value of the stolen merchandise because the information was taken from the price tag. The petitioner argues that had his attorney objected, the value of the property would have been excluded and the state would not have had sufficient proof to prove the felony theft of property. Ark. Code Ann. § 5-36-103 (b)(2) (A) (1987) provides that theft of property is a Class C felony if the value of the property is less than $2,500 but more than $200; otherwise, theft of property is a class A misdemeanor. Ark. Code Ann. § 5-36-103(b)(4) (1987). A security guard from M. M. Cohn testified that the value of the shirts that the petitioner took from the store was $257.00. A security guard from Montgomery Ward testified that the value of the sheets taken from the store totalled $214.96. The price tags were admitted into evidence. In considering the petitioner’s argument on appeal that there was insufficient evidence of felony theft of property, the court of appeals conceded that the value of the items was established by hearsay testimony; however, because there was no objection at trial to the testimony, the court considered the evidence as sufficient to establish that the value of the items was in excess of $200.00.

It is necessary to show that the market value of the property stolen was more than the statutory minimum for a felony conviction. Hammond v. State, 232 Ark. 692, 340 S.W.2d 280 (1960), see also Ark. Code Ann. § 5-36-103(b) (1987). This court has found in a case similar to the case at bar that a security guard’s testimony as to value, based on a price tag, is hearsay and is inadmissible to prove the value of the stolen property. Lee v. State, 264 Ark. 384, 571 S.W.2d 603 (1978). See also Doby v. State, 28 Ark. App. 23, 770 S.W.2d 666 (1989). It is necessary in a case like this to have someone testify who has actual knowledge of the property’s fair market value. Since no such witness testified in this case, and the evidence of value was hearsay, we grant the petition so that the trial court can determine whether the petitioner’s attorney was ineffective in failing to make a hearsay objection.

The petitioner also claims that his counsel should have requested a jury instruction on misdemeanor theft. Since this was a case tried to the bench, jury instructions were not used so the allegation is without merit. Moreover, counsel did ask the court to reduce the theft counts to misdemeanors, but the motion was denied.

The petitioner asks that he be furnished a copy of the transcript, record, files and docket sheets relating to his case to assist in preparation for the Rule 37 hearing. A petitioner is not entitled to a free copy of the trial record or other material on file with this court unless he demonstrates some reasonably compelling need for specific documentary evidence to support an allegation contained in a petition for post-conviction relief. See Austin v. State, 287 Ark. 256, 697 S.W.2d 914 (1985); see Chavez v. Sigler, 438 F.2d 890 (8th Cir. 1971); see also United States v. Losing, 601 F.2d 351 (8th Cir. 1979). Indigency alone does not entitle a petitioner to a transcript at public expense. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980). As the petitioner here has cited no specific compelling reason for requiring a copy of the trial transcript, the motion is denied.

It should be noted that when an appeal has been lodged in either this court or the Court of Appeals, the appeal transcript remains permanently on file with the Clerk of the Supreme Court. Counsel may check a transcript out through the Clerk’s office for a period of time, and persons who are not attorneys may review a transcript in the Clerk’s office and photocopy all or portions of it. An incarcerated person desiring a photocopy of pages from a transcript may write this court and request that the copy be mailed to the prison. All persons, including prisoners, must bear the cost of photocopying. Austin v. State, supra.

The petitioner has also filed a motion asking that counsel be appointed for him. Since post-conviction proceedings under Rule 37 are civil in nature, there is no constitutional right to appointment of counsel to prepare a petition under Rule 37. Fretwell v. State, 290 Ark. 221, 718 S.W.2d 109 (1986). Rule 37.3 provides for the appointment of counsel by the circuit court where a hearing is granted and where the petitioner is unable to afford counsel. Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988).

Petition granted; motions denied.


author: Jack Holt, Jr., Chief Justice.

text:
    John Henry WILLIAMS v. STATE of Arkansas
    CR 90-39
    794 S.W.2d 618
    Supreme Court of Arkansas
    Opinion delivered September 10, 1990

      William R. Simpson, Jr., Public Defender, Thomas B. Devine III, Deputy Public Defender, and Didi H. Sailings, Deputy Public Defender, by: Didi H. Sailings, Deputy Public Defender; and Omar F. Greene II, for appellant.

      Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, John Henry Williams, was convicted of capital felony murder of two persons and battery in the second degree of a third person. In a bifurcated trial, Williams was sentenced to life imprisonment without parole for the murders and to a term of six years for the battery offense. The trial court ordered the sentences to run consecutively.

Williams’ sole argument on appeal is that his capital murder conviction should be reversed and remanded because the jury’s sentencing phase findings were inconsistent with its guilty verdict.

During the guilt phase of Williams’ trial, the jury received instructions concerning the offense of capital felony murder as well as the lesser offenses of murder in the second degree and manslaughter. The jury was also instructed as to the affirmative defense of mental disease or defect since Williams claimed he was not guilty of the homicides by reason of his mental disabilities. Thereafter, Williams was found guilty of capital felony murder which necessitated a finding of premeditation in accordance with Ark. Code Ann. § 5-10-101(a)(3) (1987). At the penalty phase of the trial, acting pursuant to instructions regarding mitigating circumstances, some of the jury found that the murders were probably committed while the appellant was under extreme mental or emotional disturbance.

Williams argues that this finding during the penalty phase of his trial is inconsistent with the jury’s verdict of premeditated capital murder since one acting under extreme mental or emotional disturbance cannot act with the specific intent of premeditation and deliberation; however, he failed to raise this point during trial. Our perusal of the record reflects a total absence of any objections after the jury’s findings and sentencing were read by the court. We do not consider issues of this nature which are raised for the first time on appeal. Smart v. State, 297 Ark. 324, 761 S.W.2d 915 (1988). Additionally, a defendant who makes no objection at the time sentence is imposed has no standing to complain. McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980).

In accordance with Ark. R. Crim. P. 11 (f), we have further reviewed the record for objections decided adversely to the appellant and have found no reversible error.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Dennis Joe VENTRESS v. STATE of Arkansas
    CR 90-43
    794 S.W.2d 619
    Supreme Court of Arkansas
    Opinion delivered September 10, 1990

      Balm, Gunti, Mouser, DeSimone, Robinson & Kizer, by: Maxie G. Kizer, for appellant.

      Steve Clark, Att’y Gen., by: John D, Harris, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The sole issue in this case is whether the trial court erred by refusing to give an instruction which was requested by the appellant. The trial court did not err and, accordingly, we affirm.

Appellant and Ronnie Goolsby were jointly charged with the capital murder of Charles Sowell. Goolsby’s case was severed, and he pleaded guilty to, and was sentenced for, the lesser included offense of first degree murder. Appellant’s trial was held later and, at the trial, there was no dispute that the victim had been murdered and that appellant was involved in some way. The only issue was the manner and extent of appellant’s involvement. The testimony given to the jury basically set out two versions of appellant’s involvement.

The first version was contained in appellant’s confession. In it, appellant stated that he and Goolsby planned to rob the victim and Goolsby said, “I don’t leave no witnesses.” Even though Goolsby said he would kill the victim, appellant went with Goolsby to the victim’s home. Goolsby went into the house while appellant watched from outside. Goolsby beat the victim to death. Goolsby then let appellant in, and appellant took the victim’s wallet and money.

The second version was given by appellant in his testimony at trial. At that time he said that he gave his initial confession only because he wanted to give the police a “lead” on Goolsby and, “I didn’t know I was jeopardizing myself that much.” He testified that the correct story was that he knew the victim well and knew that he was a homosexual who would pay to have sexual activity with Goolsby. He took Goolsby to the victim’s house so Goolsby could prostitute himself. He waited at another location until they had time to finish their liaison. He then went back to the victim’s house, heard screaming, went in, and found that Goolsby had killed the victim. Appellant took the victim’s wallet from a closet and handed it to Goolsby.

This version was also given, with minor differences, by Goolsby at trial. Although issues of credibility are not material to this opinion, it is interesting to note that Goolsby admitted on the stand that he had been in a severe car wreck some time before the murder and that, as a result, his right arm was paralyzed, and one of his ankles was “half-way twisted” so that his movement was hindered; further, in his confession he said that appellant was the one who killed the victim. Still, at trial he maintained that he alone grabbed the victim, an able-bodied man, and beat and strangled him to death and that he was mistaken in his confession. He admitted that he had nothing to lose by “taking the rap” at trial since he was already serving a thirty-five (35) year sentence for the murder and could not be resentenced.

In summary, the appellant was tried separately for the capital murder of the victim, with robbery being the under-lying offense. The testimony set out two versions of the facts. The trial court gave, among others, instructions on AMCI 1501 and 2103, capital murder and robbery; AMCI 1502 and 2203, first degree murder and theft of property; AMCI 301, lesser included offenses; and AMCI 401, accomplices and joint responsibility. The trial court further gave the jury verdict forms by which it could find the appellant guilty of (1) capital murder, (2) first degree murder, or (3) not guilty.

The appellant requested an additional instruction, taken from Ark. Code Ann. § 5-2-406 (1987), which provides:

When two or more persons are criminally liable for an offense of which there are different degrees, each person shall be liable only for the degree of the offense that is consistent with his own mental culpability or with his own accountability for an aggravating fact or circumstance.

While appellant’s requested instruction was a correct statement of law, it was not error for the trial court to refuse to give it since other instructions covered the issue. Wallace v. State, 270 Ark. 17, 603 S.W.2d 399 (1980). Further, the requested instruction was not an AMCI instruction. An instruction not included in AMCI should be given only when the trial judge finds that the AMCI instruction does not state the law or AMCI does not contain a needed instruction on the subject. Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). Neither of those conditions was present in this case. Thus, the trial court did not err in refusing to give the requested instruction.

Pursuant to Rule 11(f) of the Rules of the Supreme Court and the Court of Appeals an examination has been made of all motions and objections decided adversely to appellant, and we find no errors prejudicial to the rights of appellant.

Affirmed.


author: David Newbern, Justice.

text:
    Billy Ray SCOTT v. STATE of Arkansas
    CR 90-6
    795 S.W.2d 353
    Supreme Court of Arkansas
    Opinion delivered September 10, 1990
    [Rehearing denied October 8, 1990.]

      Deborah Davies Cross, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   David Newbern, Justice.

Billy Ray Scott appeals from his conviction of first degree murder. With his direct appeal he has combined an appeal from the trial court’s decision that he is not entitled to relief with respect to his claim of ineffective assistance of counsel pursuant to former Ark. R. Crim. P. 37.

Scott contends the evidence was insufficient to support the conviction and thus the court erred in failing to grant his motion for a directed verdict. We conclude the evidence was sufficient to go to the jury. His other points for reversal are that he was denied due process of law because the state interfered with one of his witnesses and that the prosecutor’s argument on sentencing was improper and prejudicial. We decline to address both of these latter points because they were not argued to the trial court. Hegwood v. State, 297 Ark. 218, 760 S.W.2d 859 (1988); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). The judgment is affirmed on direct appeal. We also affirm the trial court’s conclusion that Scott was not entitled to post-conviction relief pursuant to former Rule 37.

1. Sufficiency of the evidence

Testimony presented by the state showed that on the evening the killing occurred Scott was eating chicken in the kitchen of a house the witnesses referred to as a “gambling house,” “bootleg house,” or “party house” which was crowded with evening revelers. At the mention that John Henry Lewis had appeared at the house, Scott arose, drew two pistols from beneath his leather jacket, and began chasing Lewis.

Lewis ran into a room in which several people were playing cards and where Credell Nichols was seated on a couch. Lewis ran behind the couch and exchanged numerous gunshots with Scott, who was bobbing about the door to the room firing his pistols and dodging Lewis’s bullets. Several persons were shot. One of them was Nichols who died from a bullet wound to the right side of his head.

Scott’s allegation of insufficiency of the evidence has two aspects. He contends it was not shown that it was his bullet that killed Nichols, and he contends there was no evidence of premeditation or deliberation required for a first degree murder conviction at the time the offense was committed. See Ark. Code Ann. § 5-10-102(a)(2) (1987), which has since been amended to require having a “purpose” to cause death rather than premeditation or deliberation. Act 856 of 1989, § 2.

a. Scott’s or Lewis’s bullet

Scott does not dispute the fact that there was testimony from which it could have been concluded that Nichols’s position while seated on the couch placed the right side of his head toward the doorway from which Scott was firing at Lewis. Scott points out, however, evidence that Nichols was rising from the couch, apparently to attempt to escape from the gunfire, when he was shot and that the state medical examiner, Dr. Malak, was unable to say what Nichols’s position was at the time he was shot because his head could have turned either way. He might have turned the right side of his head toward Lewis.

We cannot say the evidence was insufficient on this point. Dr. Malak also testified that there were no signs of stippling or gunpowder around the wound on Nichols, and thus the shot which killed him was fired from more than three feet away from the point of entry. From that evidence, the jury could easily have concluded that Nichols was not killed by Lewis who was behind the couch but by Scott who was firing from a distance greater than three feet.

b. Premeditation and deliberation

Nor can we conclude the evidence was insufficient to show premeditation and deliberation. The testimony made it quite clear that Scott was the initial aggressor. He chased after Lewis and bumped another person out of the way to get at Lewis. He fired numerous shots at Lewis. Evidence sufficient to go to the jury on premeditation and deliberation may be circumstantial. House v. State, 230 Ark. 622, 324 S.W.2d 112 (1959). Evidence of the manner in which deadly weapons are used may be sufficient to justify a jury’s conclusion that the defendant had a deliberate intent to kill. Weldon v. State, 168 Ark. 534, 270 S.W. 968 (1925).

2. Post-conviction relief

Ordinarily we do not consider post-conviction relief, sought pursuant to our former Rule 37, upon direct appeal because the issue has ordinarily not been addressed by the trial court. Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983); Hilliard v. State, 259 Ark. 81, 531 S.W.2d 463 (1976). We have, however, allowed combining direct appeal with an appeal from a Rule 37 decision when the Rule 37 issue has, as in this case, been considered by the trial court by the time we decide the direct appeal, Philyaw v. State, 292 Ark. 24, 728 S.W.2d 150 (1987), and we do so here.

Scott was sentenced on June 22,1989. Our per curiam order of May 30,1989, abolishing Rule 37 became effective on July 1, 1989. The order provided that “persons who have been convicted and sentenced during the time this rule [Rule 37] was in effect may proceed in accordance with the rule as it existed prior to that date.” Thus when Scott informed the court of his complaints of ineffective assistance of counsel at his trial the court properly considered Scott’s petition to be a request for relief under the former rule.

Scott’s petition consisted of a hand-written note alleging his trial counsel had been ineffective. On June 29, 1989, a hearing was held at which the trial court read the note on the record. The allegations of ineffectiveness read by the court were: “Counsel did not get witnesses. My priors have nothing to do with this. Trial advised me not to take stand. Used statement Billie Kelly had murder charge. Purgers. . . testified and made false statement. I should have been allowed to take stand without priors brought up. Attorney should have objected to Prosecutors advising jurors to find me guilty of first-degree murder. And should have instructed jurors more clearly of this case.” The note further requested a hearing and counsel other than the public defender’s office which had represented Scott at the trial.

The court, on July 5,1989, entered an order containing a discussion of the allegations, as detailed as possible, to the effect that Scott had stated only conclusions and had given no valid reasons requiring a further hearing on the question of ineffective assistance of counsel. The order fulfilled the requirements of Rule 37.3(a). Smith v. State, 290 Ark. 90, 717 S.W.2d 193 (1986); Franks v. State, 289 Ark. 122, 709 S.W.2d 406 (1986).

We agree that no further action was required. No facts showing ineffectiveness of counsel were stated. For example, the petition did not name any witness not procured by defense counsel. We might agree with Scott’s argument that he had a right to testify in his own defense, but he has shown nothing to indicate the decision was other than a tactical one. The argument that he had a right to testify in his own defense does not address the complaint he made, however, which was that he should have been allowed to testify without reference being made, presumably by the prosecution, to his prior convictions.

We affirm the conviction on direct appeal. We also affirm the trial court’s refusal to grant post-conviction relief.


author: Otis H. Turner, Justice.

text:
    Johnny Lee ASHER v. STATE of Arkansas
    CR 90-60
    795 S.W.2d 350
    Supreme Court of Arkansas
    Opinion delivered September 10, 1990
    [Rehearing denied October 8, 1990.]

      Jennifer Morris Horan; for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Otis H. Turner, Justice.

While operating a pick-up truck, the appellant suffered an epileptic seizure resulting in a single-vehicle accident. An employee of a nearby business witnessed the event and, after arranging for an ambulance, went to the vehicle to assist the appellant, who was semi-conscious and bleeding from a severe head laceration.

Emergency medical personnel were at the scene when two police officers arrived. The appellant, who was in need of medical attention, was removed from the truck and taken by ambulance to the hospital.

The police officers conducted routine traffic-accident procedures and called a tow truck to remove the vehicle. Prior to the arrival of the tow truck, the officers conducted an inventory search of items located in the appellant’s vehicle. In the course of the inventory, they found a plastic pill bottle stuffed with two baggies containing a brownish powder and a third baggie containing a white powder. Tests subsequently revealed the contents to be controlled substances. The officers also discovered a handgun and a shotgun in the vehicle. It was later determined that the appellant was a felon.

The appellant was charged with two counts of illegally possessing a firearm and two counts of possession of a controlled substance with intent to deliver. At trial, he was convicted, and the trial court followed the jury’s recommendation of a sentence totaling 42 years imprisonment and a $40,000 fine.

For reversal, the appellant asserts three errors: first, that the search of the appellant’s truck was accomplished illegally; second, that a previously undisclosed state’s witness, Linda Kaiser, was improperly permitted to testify in rebuttal; and third, that the state’s cross-examination of the appellant’s wife, Marilyn Asher, was improperly conducted.

We find that none of the issues asserted by the appellant constitutes reversible error, and we therefore affirm the convictions.

With regard to point one — the search of the vehicle — the record clearly establishes that the appellant was removed from the scene in a semi-conscious state and that his condition was such that the officers made no attempt to talk to him at that time. The vehicle was removed from the accident site to be placed in the custody of the police or third parties. It is imperative under such circumstances that an inventory search be made to protect the owner’s property and to insure against claims of lost, stolen, or vandalized property. The United States Supreme Court has recognized that these interests may be found to outweigh the individual’s Fourth Amendment interests requiring a warrant prior to search. Colorado v. Bertine, 479 U.S. 367 (1987).

The facts here are somewhat analogous to those in Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), where the appellant was taken from the scene to a hospital following a gun battle with the police. In those circumstances we held that the search of Snell’s vehicle was a proper inventory search.

We hold that in this instance the search of the appellant’s vehicle was a proper inventory search authorized by A.R.Cr.P. Rule 12.6(b).

The appellant next contends that the state was improperly permitted to call an undisclosed eyewitness in rebuttal.

The state produced evidence that the handgun was found in a “pouch” located at the front of the seat on the driver’s side. The appellant called a witness, Jack Prine, to prove that Prine had borrowed the appellant’s vehicle and that the guns belonged to the witness and that he had, unknown to the appellant, left the firearms in the appellant’s vehicle. The defense carefully examined both prosecution and defense witnesses in an attempt to show that the weapons were not in plain view and that the appellant could not have noticed them.

On rebuttal, the state called Linda Kaiser, an employee of a business located near the scene of the accident. The state had not listed Kaiser as a witness in its response to discovery and did not call her as a witness during the presentation of the prosecution’s case-in-chief.

Kaiser testified that she went to the vehicle immediately following the accident in order to see if an ambulance was needed. She saw a handgun in plain view in the seat pouch on the driver’s side. Clearly, this testimony could have been produced by the state in its case-in-chief. However, that fact alone does not preclude its introduction on rebuttal if the testimony serves to refute evidence raised by the defense. See Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986).

The state proved the weapons were found in the defendant’s possession — in his truck. The defense to this proof was a lack of knowledge of the presence of the weapons on the part of the accused. It was then proper rebuttal for the state to counter that defense by showing that the handgun was in plain view.

In Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986), the Arkansas Court of Appeals, upholding a felon-in-possession-of-a-firearm conviction, stated: “The evidence is sufficient if it is shown, by either direct or circumstantial evidence, that the appellant had the right to exercise control over the object.” In arriving at its decision, the court of appeals properly analogized Glover v. State, 273 Ark. 376, 619 S.W.2d 629 (1981), and Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976), opinions discussing constructive possession of controlled substances.

Rebuttal witnesses need not be disclosed in response to discovery requests. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). The admission of the testimony of Linda Kaiser as a rebuttal witness under the circumstances of this case was not error.

The appellant’s third point for reversal concerns the cross-examination of Marilyn Asher, the appellant’s wife. This point gives cause for concern, but upon a close examination of the record, we conclude that, though the questioning was improper, there exists no reversible error.

During cross-examination the following exchange occurred:

Q: Let me ask you this. On October 3, 1988, were you in possession of a number of stolen guns in a fake wall in your bedroom?
A: Not to my knowledge.
Q: You didn’t have any knowledge of that wall being there and those guns behind it?
A: No.
DEFENSE COUNSEL: I am going to object Your Honor and move for a mistrial. . .
THE COURT: Bailiff, would you take the jury out.. . .

Out of the jury’s hearing, defense counsel moved again for a mistrial on the grounds that the questions concerned criminal activity that allegedly occurred after the incident giving rise to the pending charges against the appellant and, further, that the questioning was inflammatory and prejudicial.

No rule of evidence permits this line of questioning, and the questions addressed to the witness were patently improper. However, to preserve a point for review, a proper objection must be asserted at the first opportunity after the matter to which objection has been made occurs. A.R.C.P. 36.21; Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). In this instance, that first opportunity occurred when the question was first asked and before it was answered.

Even if the objection had been timely made, under the circumstances we do not believe that the defendant was prejudiced. The witness gave a negative answer to the question. An isolated and impermissible question, though technically error, does not necessarily dictate a reversal. Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988). See also Cox v. State, 264 Ark. 608, 573 S.W.2d 906 (1978). We will not reverse for error that does not affect the essential fairness of a trial. A litigant is entitled to a fair trial, not a perfect one. Scherrer v. State, 294 Ark. 237, 742 S.W.2d 877 (1988).

Affirmed.


text:
    Nathan T. MATTHEWS v. STATE of Arkansas
    RC 90-40
    793 S.W.2d 793
    Supreme Court of Arkansas
    Opinion delivered September 10, 1990

      Callis L. Childs, for movant.
    No response.
   Per Curiam.

Petitioner, Nathan T. Matthews, by his attorney, Callis L. Childs, has filed a motion for rule on the clerk. 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, 265 Ark. 964 (1979) (per curiam).

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


author: Steele Hays, Justice.

text:
    O.J. PARKS v. STATE of Arkansas
    CR 90-74
    795 S.W.2d 49
    Supreme Court of Arkansas
    Opinion delivered September 17, 1990

      Robert S. Blatt and William J. Kropp III, for appellant.

      Steve Clark, Att’y Gen., John D. Harris, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

The question presented by this appeal is whether a hearing to revoke appellant’s suspended sentence was held in accordance with Ark. Code Ann. § 5-4-310 (1987), providing that revocation hearings shall be^ conducted within a reasonable time, not to exceed sixty days, after a defendant’s arrest.

On September 9,1988, appellant, O.J. Parks, pled guilty to the manufacture of a controlled substance. He was sentenced to a four-year term, with the four years suspended, conditioned on no commissions of a felony within two years. Five months later, on January 24, 1989, appellant was arrested and charged with the offense of being a felon in possession of a firearm, a class D felony. Subsequently, on August 15, 1989, appellant was tried on that charge, found guilty and sentenced to six months, with three months suspended. Immediately after the trial the state served appellant with a petition to revoke the suspension, having filed the petition earlier that same day. The appellant was arraigned on the petition at that time and was allowed to remain at liberty on the same bond.

On October 23,1989, appellant filed a motion to dismiss the petition to revoke, alleging there had not been a timely hearing as required by Ark. Code Ann. § 5-4-310 (1987). On November 8, 1989, a hearing was held and appellant’s motion to dismiss the petition was denied, the state’s petition to revoke was granted and appellant was ordered to serve the remainder of his sentence. From that order, appellant brings this appeal.

Arkansas Code Annotated § 5-4-310 (1987) deals with the procedures for revocation hearings:

(b)(1) A suspension or probation shall not be revoked except after a revocation hearing.
(2) The revocation hearing shall be conducted by the court that suspended imposition of sentence on the defendant or placed him on probation within a reasonable period of time, not to exceed sixty (60) days, after the defendant’s arrest.

Appellant argues that there was no revocation hearing within sixty days after his arrest for violation of the conditions of his suspended sentence. He maintains the sixty-day requirement is mandatory because of the use of the word “shall” in the statute. We find no merit to this argument.

Appellant was not incarcerated from the time he was given notice of the filing of the petition to revoke on August 15, 1989, until the time of his revocation hearing in November. The trial court denied the motion, noting that the sixty-day rule would not apply when the defendant is not incarcerated. The trial court was correct.

We construed Ark. Code Ann. § 5-4-310(b) (1987) in Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980), where the appellant also argued the sixty-day limitation, but in that case he was incarcerated on other charges at the time he was charged with suspension violation. He argued that the sixty-day period began to run from the day of issuance of the warrant of arrest on the revocation petition — the date he was “constructively under arrest.” We rejected Boone’s contention that the sixty-day rule was in the nature of a speedy trial provision. Rather, we found that the purpose was simply to limit the period of time a defendant was detained in jail awaiting a revocation hearing:

Since the purpose of the limitation period is to assure that a defendant is not detained in jail for an unreasonable time awaiting his revocation hearing, the limitation loses its meaning when he is already serving time on another charge.

For the same reason, the time limitation loses its meaning when the defendant is not incarcerated awaiting his revocation hearing, as was the situation here. See also, Blake v. State, 262 Ark. 301, 556 S.W.2d 427 (1977); Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988).

The judgment is affirmed.

       The arrest here referred to is the arrest for violation of the conditions of suspension of sentence. See Reynolds v. State, 282 Ark. 98, 666 S.W.2d 396 (1984).